France - Council of State, 4 March 2015, M. A. against Préfet de la Haute-Garonne, No. 388180

A. On the intervention of the Cimade

The Council of State recognised that Cimade had an interest in taking legal action against the Decision and admits its intervention.

B. On the admissibility of the référé-liberté

In accordance with a clear set of jurisprudence, the Council of State stated that the right to seek refugee status is the corollary of the right to asylum, which is a fundamental freedom within the meaning of Article L. 521-2 of the Code of Administrative Justice. The Council therefore granted the Applicant’s urgent legal application appeal.

C. On the date that determines the Member State that is responsible for examining the asylum application

On the basis of Articles 7(2) and 13(1) of the Dublin III Regulation, the Council of State stated that the decision undertaken with regards to the responsible Member States for an asylum application is done at the date of the initial application and takes into account all circumstances prevailing at that date.

Based on this reasoning, the Council of State concluded that Spain was the Member State responsible for examining the asylum application because the applicant had been subject to an identity check in Spain on 28 November 2013, before he sought asylum in France.

D. On the interruption of the six-month period by the CESEDA procedure established by Article L. 512-1 Section III:

The Council of State first referred to Article 29 of the Dublin III Regulation, which provides that the transfer of an asylum seeker to the Member State responsible for examining the asylum application must take place within six months of (i) the acceptance of the request by another Member State to take charge or to take back the person concerned or (ii) the final decision on an appeal or judicial review where there is a suspensive effect in accordance with Article 27(3).

The Council of State then stated that the invocation of an appeal based on Article L. 512-1 Section III of CESEDA has a suspensive effect under Article 27(3) of the Dublin III Regulation with regards to the execution of the return measure for which the decision to place an applicant in administrative detention would have been decided. Further, the Council of State noted that, under the CESEDA procedure, an administrative court has the power to cancel a transfer and the placement of an individual in administrative detention. Therefore, the Council of State concluded that an appeal based on Article L. 512-1 Section III of CESEDA against a transfer order of the asylum applicant to the responsible Member State must be seen as interrupting the six month period foreseen in Article 29 of Dublin III.

The court held that a new six-month period starts to run from the final decision on a CESEDA procedure and not from the acceptance of the request by the Member State to take charge of the person concerned because the six-month period is interrupted by the CESEDA procedure and restarts when there is no longer an obstacle to the implementation of the transfer procedure.

E. On the principles guiding the resumption of the six-month period

The Council of State stated that, if a CESEDA procedure against a transfer measure is dismissed by the court of first instance, the six-month period starts to run from the date of the judgement of the court of first instance since the appeal has no suspensive effect. Thus, a new six-month period begins on the date of the judgement of the court of first instance. If the CESEDA procedure results in the cancellation of the transfer measure, the Council of State distinguished two scenarios: (i) either the Préfet acknowledges such cancellation, in which case  the six-month period  starts from the acceptance of the request by another Member State to take charge of the person concerned, in this case the 4 June 2014; or (ii) the Préfet appeals the decision of cancellation, in which case the six-month period is interrupted and starts from the beginning only if the Court of Appeal overturns the judgement cancelling the transfer and rejects the request of the court of first instance.

Applying this reasoning to the Applicant’s case, the Council of State ruled in favour of the Préfet because the six-month period was interrupted by the legal action against the transfer measure but had not restarted because the appeal was still pending when the Préfet issued the Dublin III summons to the Applicant.