The French Council of State used the humanitarian clause (Article 17 of the ”Dublin III” EU Regulation) and granted asylum to a Kosovo family

Conseil d’État, Juge des référés, 29/01/2015, 387329

The present case concerns the admission of foreign nationals seeking asylum.
A family originated from Kosovo arrived in France and lodged an application seeking asylum. French authorities found out that, a few months earlier, they have sought asylum in Hungry. According to the ”Dublin II” rule Hungry was the State competent to grant asylum. for this reason, the prefect of Aveyron (préfet de l’Aveyron) refused the right of residence to the family (decree from 12.11.14) and ordered their surrender to the Hungarian authorities (decree from 12.12.14). In order to secure the surrender, the prefect also ordered a house arrest. The family referred the matter to the Administrative court of Toulouse (Tribunal administratif de Toulouse) which suspended the litigated decree under interim procedure.
The Minister of Home Affairs lodged an appeal before the Supreme Court (Conseil d’Etat) which rejected the claim.

According to the supreme judges, Article 3 of the Regulation (EU) 604/2013 gave Hungary the competence to examine the asylum application. However, it was more appropriate to designate France as a responsible State pursuant to the discretion clause (Article 17 of the aforementioned Regulation). In order to justify their solution, the supreme judges take into consideration different elements, such as the medical situation of the five children, their school enrolment in France and their successful integration capacity.
Concerning procedural rules, the Supreme Court (Conseil d’Etat) underlined that persons who want to challenge an expulsion decision, even if it is accompanied by a coercive administrative measure (retention in temporary stay centre or house arrest) should base their action on the French Code of Entry and Residence of Aliens and the Right to Asylum and should not limit the action only to the coercive measure’s review. In fact, challenging the expulsion order is a special and exclusive legal procedure which offers the same procedural guarantees as these established in case of administrative police measure’s review under interim procedure.

The full text is available on EuroCases

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