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France / Council of State / 416192

Ms A. v Prefecture of Essonne

Policy area:
Asylum and migration
Deciding Body type:
National Court/Tribunal
Deciding Body:
Council of State
Decision date:

Key facts of the case: 

Mr. and Mrs. A. presented a request for asylum for themselves and their son D to the Prefecture of Essonne on 27 June 2017. In two Orders of 2 November 2017, the Prefect of Essonne ordered their transfer to the Norwegian authorities, who were responsible for their first request for asylum, and put them under house arrest while awaiting this transfer. The applicants did not contest this decision but submitted on 16 November 2017 a request that their asylum application be examined in France, pursuant to Articles 16 and 17 of the Dublin III Regulation, in view of the state of health of their other child M, born with congenital heart disease on 16 August 2017.  On 24 November 2017, the Prefecture of Essonne informed Mrs A. that her transfer and that of her child D by air to Norway was set for 5 December 2017. On 29 November 2017, the applicant lodged an application to the judge for summary procedures at the Administrative Court of Versailles requesting that the Prefect of Essonne be ordered to register her asylum application and that of her husband, and to suspend the execution of the deportation order concerning her and her son D. In an Order of 1 December 2017, the judge of summary procedures at this court rejected this request. On 1 December 2017, the Prefecture of Essonne informed Mr A. of his transfer to Norway on the same flight as his wife and son D.

On 3 December 2017, Mrs. A. asked the judge for summary procedures of the Council of State to annul this order and to enjoin the Prefect of Essonne to suspend the carrying out of the transfer which concerned three of the members of the family A. She also asked for her request for asylum, and that of her husband, presented in accordance with articles 16 and 17 of the regulation (EU) n° 604/2013, to be registered in France.

Outcome of the case:

The Council of State considered that the procedure for the readmission of Mr. and Mrs. A. and of their son D to Norway had been implemented without taking into account the birth and the health condition of their son M.

According to the Council of State, it consequently from now on falls on the administration, in accordance with the provisions of the Dublin III regulation, to examine to what extent the health of their three-month-old son M is compatible with the legal transfer to Norway of family A., taking into account the medical certificates produced at the court. In the event of an affirmative answer, it will moreover rest with the administration to ensure that the Norwegian authorities agree to receive the four members of family, and more particularly to confirm than child M will be able receive the care which his medical state requires upon arrival. In the event of a negative response to the one of these two series of checks, it will fall on the administration to rule on their request for asylum presented within the framework of the discretionary clause of Article 17-1 of this regulation, implemented by the last subparagraph of Article L. 742-2 of the Code for the entry and stay of foreigners and the right to asylum. With regard to the delays inherent in the carrying out of these checks, the decrees on transfer to Norway of 2 November 2017 could not, in any event, be carried out in the following days, as the Minister of the Interior underlined at the time of the hearing.