TA Luxembourg - N° 46189
From GDPRhub
| TA Luxembourg - N° 46189 | |
|---|---|
 | |
| Court: | TA Luxembourg (Luxembourg) |
| Jurisdiction: | Luxembourg |
| Relevant Law: | Article 6(1)(f) GDPR Article 9 GDPR Loi du 18 Decembre 2015 elative à la protection internationale et à la protection temporaire Loi du 18 Decembre 2015 relative à la protection internationale et à la protection temporaire |
| Decided: | 01.07.2021 |
| Published: | |
| Parties: | Anonymous Luxembourg Police |
| National Case Number/Name: | N° 46189 |
| European Case Law Identifier: | |
| Appeal from: | |
| Appeal to: | |
| Original Language(s): | French |
| Original Source: | TA Luxembourg (in French) |
| Initial Contributor: | Florence D'Ath |
The Administrative Tribunal of Luxembourg considered that, by searching the phone of an asylum seeker, the police of Luxembourg did not violate the GDPR, because such processing is allowed under Luxembourg law, and because the intent of the police was not to process sensitive data.
English Summary
Facts
An asylum seeker (X), born in Moldavia but having lived his entire childhood in Syria, applied for international protection in Luxembourg in November 2019. At the time of entry, X was still a minor and was accompanied by his mother. During the interrogation conducted by the police, X fainted and the police searched his phone without his consent, including pictures.
In February and April 2021, whilst X had reached the legal age of majority, he was heard by an agent of the Ministry of Immigration regarding his situation and the reasons behind his request for international protection.
On 1 June 2021, the Ministry rejected his request, on the ground that X had a connection with Moldavia, where he could return, in application of Article 28(2)(c) of the Luxembourg law of 18 December 2015 regarding international protection. X appealed that decision before the Administrative Tribunal of Luxembourg, arguing among others that the police force had illegally processed his personal data, including sensitive personal data, because they did not have any valid legal basis under Article 6 GDPR and/or Article 9 GDPR.
Holding
Regarding the processing of personal data in general, the Tribunal first recalled that processing of personal data is allowed when such processing is necessary for the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller (Article 6(1)(e) GDPR), as long as this is laid down in national law (Article 6(3)(b) GDPR).
The Tribunal then looked into Article 12(5) of the Luxembourg law on Internal Protection, which states that: "The [police] may, if necessary, carry out a body search of the applicant and a search of the objects he is transporting. (...) [T]he body search of the applicant's shall be carried out by a person of the same sex, with full respect for the principles of human dignity and physical and psychological integrity. Any object useful for examining the request may be retained (...)."
Having regard this provision, the Tribunal considered that a phone was an object "useful for examining the request", and that the Luxembourg police could thus rely on Article 6(1)(e) GDPR for searching the phone of X. In particular, the Tribunal considered that those data, including the pictures found in the phone, were necessary to establish the origin and journey of Mr X before the latter arrived in Luxembourg, with a view of determining if his request for international protection was admissible.
The Tribunal, however, did not analyse whether the processing of all these data, and in particular all the pictures contained on the phone, complied with the principle of data minimization enshrined in Article 5(1) GDPR.
Regarding the processing of sensitive personal data as defined in article 9(1) GDPR, X was arguing that his consent had not been obtained by the police prior to the search of his phone, and could have not been obtained at all since he had fainted during the interrogation. In that respect, the Tribunal considered that Article 9 GDPR was simply not applicable because "the data retrieved from the phone of the applicant were only intended to determine the applicant's place of stay during the last years, and do not relate to racial or ethnic origin, political views, beliefs religious or philosophical or union membership".
For these reasons, the Tribunal rejected the appeal of X, and confirmed the decision of the Ministry.
Comment
This decision by the Administrative Tribunal can be criticized at two levels:
- first, it is regrettable that the Tribunal simply considered that the processing of the applicant's personal data had a valid legal basis under Article 6(1)(e) GDPR, without considering the principle of data minimisation. While some of the information contained in the phone could indeed have been relevant for assessing the admissibility of his asylum request (e.g. the location data of the applicant), it cannot be reasonably argued that all the data contained in his phone, including all his private pictures, were "necessary" for establishing in which territories the applicant had lived prior to his arrival in Luxembourg. A phone may indeed contain many pictures that are irrelevant in this respect, including pictures of friends, family members, etc. By limiting its analysis as to whether the search of a phone can generally be allowed for a mission of public interest, without looking at the actual nature, extent, and content of the data processed, the Tribunal has thus failed to correctly apply the GDPR, in particular in light of the principle of data minimisation enshrined in Article 5(1)(c) GDPR.
- second, it is regrettable that the Tribunal appreciated the general or sensitive nature of the personal data by looking into the intent of the police force at the time the phone was searched, rather than the content of the actual data. The Tribunal indeed simply concluded that because the intent of the police was to establish the place of stay and the itinerary of the applicant, such data were not sensitive data. This, of course, is a incorrect application of the GDPR. In particular, the nature of personal data should not be determined on the basis of the purpose of the processing. Rather, one must look whether any of the data which was actually processed by the controller reveals information on the racial or ethnic origin, political opinion, religious or philosophical belief, health, trade union membership or sexual orientation of the data subject. Arguing the opposite would lead to a situation where controllers can simply circumvent Article 9 GDPR by pretending that their intent was never to process sensitive data, but that such data were only processed incidentally or accidentally. In this case, it is likely that some of the pictures on the phone of applicant contained sensitive personal data. This would be the case, for example, if the applicant is seen injured or smoking (i.e. health data), if the applicant is seen holding a political statement during a demonstration (i.e. political opinion) or simply if the applicant is seen kissing his girlfriend or boyfriend on one of the pictures (i.e. sexual orientation).
This judgment is quite representative of the poor understanding that some administrative courts can have of EU data protection law, probably due to the fact that the GDPR is still quite new.
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English Machine Translation of the Decision
The decision below is a machine translation of the French original. Please refer to the French original for more details.
Administrative court N ° 46189 of the roll
of the Grand Duchy of Luxembourg Registered on July 1, 2021
vacation room
Public hearing of July 28, 2021
Appeal brought by Mr ..., ...,
against a decision of the Minister of Immigration and Asylum
in matters of international protection (art. 28 (2), L. 18.12.2015)
___________________________________________________________________________
JUDGEMENT
Considering the request registered under number 46189 of the roll and filed on July 1, 2021 at the registry
of the administrative tribunal by Master Frank Wies, lawyer at the Court, registered on the roll of the Order of
lawyers in Luxembourg, on behalf of Mr ..., declaring to be born on ... in ... (Moldova), of
Syrian nationality, currently residing in ..., seeking the annulment of a decision of
Minister of Immigration and Asylum of 1 June 2021 having declared inadmissible his request for
international protection on the basis of article 28 (2) c) of the amended law of 18 December
2015 on international protection and temporary protection;
Having regard to the memorandum in response from the delegate of the government filed with the registry of the court
administrative on July 21, 2021;
Considering article 1 of the law of December 19, 2020 on the temporary adaptation of certain
1
procedural modalities in civil and commercial matters;
Seen the email from Master Frank Wies of July 26, 2021 by which he informed
the court that he would not appear at the pleadings hearing and that the case could be taken
without his presence;
Having regard to the documents paid in question and in particular the decision referred;
The judge-rapporteur heard the report, as well as the delegate of the government
Felipe Lorenzo in his oral argument at the public hearing on July 28, 2021.
On November 4, 2019, Madame ..., accompanied by her minor children ...
introduced to the competent service of the Ministry of Foreign and European Affairs,
Directorate of Immigration, hereinafter referred to as "the Ministry", a request for protection
international in the sense of the amended law of December 18, 2015 relating to international protection
and temporary protection, meanwhile amended by the law of 16 June 2021 amending
of the law of December 18, 2015, hereinafter referred to as "the law of December 18, 2015".
1
"Cases pending before administrative courts, subject to the rules of written procedure and ready for decision
to be tried, may be taken under advisement without the appearance of the agents with the consent of the latter. "
1 Madam's statements ... on her identity and on the route followed to come to the
Luxembourg were recorded by an agent of the Grand Ducal police, organized crime service -
aliens police, in a report of the same day.
On February 12, 2021, the eldest son of Madame ..., to know Monsieur ..., having in the meantime reached
the age of majority, was heard by an official of the ministry on his situation and on the reasons
found at the basis of his request for international protection.
On April 30, 2021, Mr. ... was again heard by an agent of the ministry on the
admissibility of his application for international protection.
By decision of April 12, 2021, notified to the interested party by registered letter sent on
the next day, the Minister of Immigration and Asylum, hereinafter referred to as "the Minister", informed
Madam ... that her request for international protection was refused as unfounded in the
under an accelerated procedure, in application of article 27 of the law of 18 December 2015.
The legal action brought by Madame ... against the aforesaid decision was rejected by a
judgment of the vice-president of the administrative court of May 18, 2021, registered under number 45960
of the role.
By decision of June 1, 2021, hand-delivered to the person concerned on June 16, 2021, on
Minister informed Monsieur ... that his application for international protection was declared
inadmissible on the basis of Article 28 (2) c) of the Law of 18 December 2015, on the grounds that it
there was a connection link in its head with Moldova within the meaning of Article 31 (2) of the Law
December 18, 2015, so it would be reasonable to admit he was going to that country.
By request filed at the registry of the administrative court on July 1, 2021, Mr. ... made
lodge an appeal for the annulment of the aforementioned ministerial decision of June 1, 2021.
Since the decision referred declares the application for protection inadmissible
international introduced by Mr. ... on the basis of article 28 (2) c) of the law of 18 December
2015 and that article 35 (3) of the said law provides for an action for annulment in matters of
of international protection declared inadmissible on the basis of Article 28 (2) of the same law, a
an action for annulment could validly be directed against the referred ministerial decision. the
an action for annulment is, moreover, admissible for having been introduced in the forms and
of the law.
In support of his appeal, Sir ...
Moldovan and a father of Syrian nationality. He himself would have Syrian nationality and following
his birth, the family would have joined Syria where he would have spent all his childhood. During
in 2017 their house would have been destroyed in a bombing raid and the family should have been
take refuge in a house abandoned by its former inhabitants. When he approached the age of
the majority he would have feared being recruited into the ranks of the Syrian army, so he would have
seen forced to leave Syria in 2019 with his mother and minor brothers. They would have joined the
Luxembourg where they would have filed an application for international protection on November 4, 2019.
2 In law, the applicant challenges the decision of inadmissibility of his application for protection
international ministerial agreement taken on the basis of article 28 (2) c) of the law of 18 December 2015 in
reason that Moldova should be considered as a safe country of origin with which he
would present a connection link, so that it could install itself there. He so contests the legality
external as the merits of the said decision.
He thus reproaches first of all the services of the judicial police, to have, during
The hearing of November 4, 2019, conducted an illegal search of his cell phone. He
argues in this regard that his consent was not requested prior to the said search and
insofar as he fainted during the said hearing, it could be accepted that the
search would have been carried out without his consent.
The applicant believes that by recovering photos in his phone during the said search,
and by processing the data thus collected in the context of the referred decision, without collecting its
prior consent, both the police force and the Minister would have carried out treatment
of his personal data and violated in this way the Regulation (EU) 2016/679 of the Parliament
European Union and of the Council of 27 April 2016 on the protection of individuals
the processing of personal data and the free movement of such data, and
repealing directive 95/46 / CE, hereinafter referred to as "the GDPR regulation" taken more
particularly in its articles 6, 9 and 21.
As regards more particularly the alleged violation of Article 6 of the Regulation
GDPR, the applicant argues that the recovery of his documents and photographs in his
mobile phone would qualify as data processing within the meaning of the GDPR regulation. However, the
data processing would only be lawful under certain conditions, including in particular that provided for
in Article 6 e) of the GDPR Regulation, according to which the data processing is necessary for
the performance of a mission relating to the exercise of public authority vested in the
controller. In this regard, point 45 of the preamble to the GDPR regulation would add
although the data processing carried out on the basis of said article 6 e) of the GDPR regulation should
have a basis in European Union law or in the law of a Member State, which
would not be the case in the present case, in the absence of the existence of a relevant national legal provision.
The applicant further maintains that in view of the sensitivity of the information in his
cell phone, it would be obvious that the search of this phone would constitute an intrusion into
his private life, contrary to Article 8 of the Convention for the Protection of Human Rights and
fundamental freedoms, signed in Rome on November 4, 1950 and approved by a law of August 29
1953, hereinafter referred to as "the ECHR".
Article 12 (5) of the law of 18 December 2015 cannot, moreover, in the eyes of the
claimant can be used as a legal basis for searching a mobile phone and not
would not be able to deprive the applicant for international protection of his rights to respect for private life
and the protection of his personal data.
3 The applicant also refers to an opinion issued by the Advisory Commission on Human Rights
The Man in Luxembourg issued on a bill, as well as an opinion from the High
United Nations Commissioner who hold that the national legislation does not contain
provision authorizing the search of the cell phone of an applicant for international protection,
respectively that even if states have a legitimate interest in knowing the identity of applicants
asylum, full access to their personal data constitutes a significant breach of their privacy
and requires special conditions governing this possibility.
The court finds in this regard, regardless of the question of the applicability of the
GDPR regulation on international protection, that in this case, the delegate of
government rightly concludes, on the basis of article 12 (5) of the law of 18 December 2015,
rejection of the plea thus raised by the applicant and alleging illegal processing of his data
personal or even an intrusion into his or her privacy.
Thus, article 6 of the GDPR regulation, invoked by the applicant, provides that: "1. The
processing is only lawful if, and insofar as, at least one of the following conditions is
fulfilled:
a) the data subject has consented to the processing of their personal data
for one or more specific purposes;
b) the processing is necessary for the performance of a contract to which the data subject is
party or the execution of pre-contractual measures taken at the request of the latter;
c) the processing is necessary for compliance with a legal obligation to which the controller
processing is submitted;
d) the processing is necessary to protect the vital interests of the data subject
or another natural person;
e) the processing is necessary for the performance of a task of public interest or falling within
the exercise of public authority vested in the controller;
f) the processing is necessary for the purposes of the legitimate interests pursued by the controller
processing or by a third party, unless the interests or freedoms and rights prevail
fundamental aspects of the data subject which require protection of personal data
personal, especially when the data subject is a child.
Point f) of the first subparagraph does not apply to the processing carried out by the authorities
public in the performance of their missions. (…) ”.
Point 45 of the preamble to the GDPR regulation provides in this regard: "When the processing
is carried out in accordance with a legal obligation to which the controller is
submitted or when it is necessary for the performance of a mission of public interest or falling within
the exercise of official authority, the processing should have a basis in Union law
or in the law of a Member State. These regulations do not require any legal provision
specific for each individual treatment. A legal provision may suffice to found
several processing operations based on a legal obligation to which the data controller
2 opinions on: draft law n ° 7681 amending the law of 18 December 2015 relating to
international law and temporary protection, Bill n ° 7682 amending the amended law of 29 August
3008 on the free movement of persons and immigration,; 04/2021
UNHCR, Preliminary Legal Observations on the Seizure and Search of Electronic Devices of Asylum Seekers, 4
august 2017
4processing is submitted or when the processing is necessary for the performance of an assignment
of public interest or falling within the exercise of public authority. (…) ”.
It follows that, as the applicant asserts, the processing of data is not lawful on the basis
of Article 6, 1), e) of the GDPR regulation only if it is necessary for the execution in particular of a
mission relating to the exercise of public authority vested in the controller and
if it is based on a national legislative provision.
Regarding the existence of a national legislative provision, it is necessary to
note that under Article 12 (5) of the Law of 18 December 2015: "(5) The
judicial police may proceed in case of necessity to a body search of the applicant and a
search the objects he is carrying. Without prejudice to any search carried out for reasons of
security, the search of the applicant's person is carried out by a person of the same sex,
with full respect for the principles of human dignity and physical and psychological integrity.
Any object useful for examining the request may be retained against receipt. ".
The said provision therefore provides that, in case of necessity, the judicial police services
may search, in particular, objects that the applicant for protection
international transports. If neither the said provision itself, nor the parliamentary documents
relating to the work leading to the adoption of the law of 18 December 2015, do not contain a
definition of the concept of "object" and also do not explicitly provide that a telephone
portable could be qualified as an "object", the fact remains that for lack of emptying the said
disposition of any meaning the notion of "object" must implicitly but necessarily aim
including a cell phone. Indeed the opposite hypothesis would lead to the situation in
which of the documents or photographs recovered during the search of an object, such as a
hands, would have been legally obtained, while the same documents or photographs
recovered during a cell phone search was allegedly obtained illegally.
Therefore, the judicial police service can, if necessary, search a
mobile phone worn by the applicant for international protection in application of Article
12 (5) of the law of December 18, 2015.
It follows that regardless of whether the search of the
requester is to be qualified as data processing within the meaning of the GDPR regulation, the means of
claimant alleging violation of Article 6 of the GDPR Regulation, for lack of legislative provision
national law providing for the processing of data on the basis of Article 6 e) of the GDPR Regulation, is
reject so as not to be founded.
In the same vein, the plea alleging violation of Article
8 of the ECHR according to which “(1) Everyone has the right to respect for his private life and
family, home and correspondence.
(2) There can be no interference by a public authority in the exercise of this right unless
provided that such interference is provided for by law and constitutes a measure which, in a
democratic society, is necessary for national security, public safety,
economy, the defense of order and the prevention of criminal offenses,
protection of health or morals, or the protection of the rights and freedoms of others. ".
5 Indeed, in the present case, the search of the applicant's cell phone, in so far as it
either to qualify as an interference in his private life, is provided for by law, in this case Article 12 (5)
of the law of 18 December 2015 and it is to be considered as a measure which, in a company
democratic, is necessary for national security, public safety, economic well-being
of the country, for the defense of order and the prevention of criminal offenses, for the protection of health
or morals, or the protection of the rights and freedoms of others.
Finally, Article 9 of the GDPR regulation invoked in this case by the applicant under the terms
of which: “1.The processing of personal data which reveals the racial origin or
ethnicity, political opinions, religious or philosophical beliefs or affiliation
union, as well as the processing of genetic data, biometric data for the purposes of
to uniquely identify a natural person, data concerning health or
data concerning the sexual activity or the sexual orientation of a physical person are prohibited.
(...) ", is inapplicable in this case, insofar as the data retrieved from the laptop of the
applicant were only intended to determine the applicant's place of stay during the last
years and do not relate to racial or ethnic origin, political views, beliefs
religious or philosophical or union membership.
The applicant also raises a plea relating to the external legality of the decision
referred, arguing that during his first interview at the ministry he could not have been assisted
by his lawyer when "due to an internal classification error relating to his summons,
his representative was not present today ". Despite the fact that the ministry was reportedly informed by
a letter of November 27, 2019 of the mandate of Mr. Frank Wies for the applicant, the agent in
responsible for conducting the interview would not have found it necessary to contact the applicant's lawyer
before starting the interview, even though he had asked several times to be
assisted by his litismandataire. The applicant further reports that under section 13 of the law
of 18 December 2015, an applicant for international protection could be accompanied
by a lawyer during the hearing with the ministry.
The Government delegate again rightly concludes that the relevant plea for
not to be founded.
Effect, in application of article 13 (2) of the law of December 18, 2015 in terms of which:
"(2) The applicant has the right to a personal interview on the merits of his request for protection
international with an agent of the Minister, without prejudice to Articles 28 and 32.
He goes to the interview and responds personally to the questions put to him by
the minister's agent, who is conducting the interview. He may be accompanied by a lawyer who, at the end
of the interview, has the opportunity to comment.
The absence of a lawyer does not prevent the minister's agents from conducting an interview
personal with the applicant, without prejudice to Article 20. ".
It follows that the applicant for international protection certainly has the right to be assisted
by a lawyer during the hearing with the ministry, the presence of the lawyer during the said hearing
is not, however, mandatory and Article 13 (2) above provides that the absence of the lawyer
does not prevent the ministerial official from conducting the personal interview with the applicant for protection
international. Consequently, the absence of the lawyer during the interview cannot taint the decision of the
Minister of illegality. The relevant plea must therefore be rejected in order to be unfounded.
6 The applicant then relies on Article 18 of the Law of 18 December 2015, Article 11 of
Grand-Ducal regulation of 8 June 1979 relating to the procedure to be followed by the administrations
of the State and the municipalities, hereinafter referred to as "the grand-ducal regulation of 8 June 1979" and
Article 17.5 of Directive 2013/32 / EU of the European Parliament and of the Council of June 26, 2013
on common procedures for granting and withdrawing international protection,
hereinafter referred to as "Directive 2013/32 / EU", to reproach the Minister for not having
transmitted the entire administrative file, despite two letters from its legal representative to
the attention of the Minister to request the release of the entire administrative file. He
argues that the photographs retrieved from his mobile phone would not have been
forwarded to his lawyer following his second appeal, while no copy of the hearing report
of February 12, 2021 would not have been sent to its legal claimant.
Since his rights of defense would have been violated in this way, it would be necessary
to set aside the referred decision.
The government delegate did not dispute that the copy of the interview report of 12
February 2021 would not have been transmitted to the applicant's litigant during the procedure
pre-litigation. He nevertheless concludes that the plea should be rejected in order to be unfounded.
Under Article 11 of the Grand-Ducal Regulation of June 8, 1979: "Everything administered has
right to full disclosure of his file relating to his administrative situation, each time
that this is reached, or likely to be, by an administrative decision taken or underway
of being. (…) ”.
According to article 18 of the law of 18 December 2015: "The minister ensures that
the lawyer who assists and represents the applicant has access to the information in the file of the
applicant on the basis of which a decision is or will be taken (…) ”.
Article 11 of the Grand-Ducal Regulation certainly enacts that every citizen has the right to
full communication of the file relating to his administrative situation, this notion of
communication necessarily implying that of making known the elements of the file to
administered with a view to greater transparency, dialogue and collaboration between
administered and the administrations at the base of individual administrative decisions,
according to the wish that presided over the drafting of the law of 1 December 1978 regulating the procedure
administrative non-contentious and the aforementioned Grand-Ducal Regulation of 8 June 1979. It is appropriate
however to note that the communication of the administrative file is not a condition of
legality of an administrative decision that was taken prior to a request for
communication of the administrative file, it being noted that the communication of the file following a
such a request has no impact on the decision already taken and may not result in
the annulment of the administrative decision only in the event of a verified violation of rights
of the defense .
In the present case, it is not disputed that the copy of the interview report of February 12, 2021
was not sent to the applicant's legal body before the appeal was initiated. If it follows
Admittedly, the applicant's representative was unable to take a position in the introductory motion
however, he had the opportunity to complete his arguments orally during the
4
Court adm. February 2, 2016, No. 37452C of the roll, Pas. adm. 2020, V ° Foreigners, n ° 809
7 pleadings, if not the possibility, conferred on him by Article 7, paragraph 3 of the amended law of
June 21, 1999 laying down rules of procedure before the administrative courts, to request
the president of the administrative tribunal, or the president of the chamber to file a brief
supplementary concerning his observations relating to the interview of February 12, 2021, being noted
in this regard that the brevity of the time limits for investigating decisions on the inadmissibility of a
application for international protection is not such as to prevent the application from seeing the agreement and
the filing of such an additional brief. However, the applicant did not make use of these
possibilities. No violation of the rights of the defense can therefore be found in this case,
so that the relevant plea must be rejected in order to be unfounded.
As regards the question of the merits of the decision referred, the applicant contests
at first glance be of Moldovan nationality. He claims that due to the illicit collection of photos
on his cell phone the minister could not have taken this into account in the decision
referred. He then explains that he has always lived in Syria. Moreover, the extract from the civil status register
Syrian, the Syrian family record book as well as an extract from the family civil status register submitted to the
Minister by his mother would all have been certified authentic by the expertise of the police, section
Expertise Documents of November 27, 2019.
As to the existence of a connecting link between himself and Moldova, the applicant
claims not to dispute that his mother is of Moldovan nationality, that he was born in Moldova
before leaving for Syria with his parents and that he had visited his
grandparents in Moldova on the occasion of the birth of his two brothers. However, these facts do not
would in themselves make it possible to consider Moldova as a safe third country in its own right with
which he would have a connection link, so it would be reasonable for him to go to that country.
He recalls that he does not have Moldovan nationality and has never lived in Moldova.
The government delegate, after explaining that Moldova should be considered
as a safe third country, insists that there is a connecting link between the applicant and
Moldova on the grounds that he was born there and returned there twice to visit his
grandparents and that his mother would have Moldovan nationality. In addition, the photographs
retrieved from his cell phone and his initial statements would attest that he would speak the
Romanian as well as Russian, official languages of Moldova, which he would know there "a multitude
people "and that he has recently returned to Moldova. The government delegate
accuses the applicant of having simply never planned to settle in Moldova in
reason that he would have preferred to come to the Grand Duchy of Luxembourg. However, the personal choice of
applicant would not be relevant in relation to the finding that Moldova constitutes a third country
sure in his head.
Article 31 of the law of December 18, 2015, on which the minister bases his decision declaring
inadmissible the application for international protection of Mr ..., on the grounds that Moldova
would constitute a safe third country, provides that:
"(1) The Minister may apply the concept of a safe third country only when he has acquired
the certainty that in the third country concerned, the applicant will be treated in accordance with the principles
following:
a) the applicant does not have to fear for his life or for his freedom on account of his race,
religion, nationality, membership of a particular social group or
Political Views;
8 b) there is no risk of serious harm within the meaning of chapter 3 of this law;
c) the principle of non-refoulement is respected in accordance with the Geneva Convention;
d) the prohibition under international law to take removal measures
contrary to the prohibition of torture and cruel, inhuman or degrading treatment, it is
respected;
e) the possibility exists to apply for recognition of refugee status and, if this status is
granted, to benefit from protection in accordance with the Geneva Convention.
(2) The application of the concept of safe third country is subject to the following rules:
a) a connection link must exist between the applicant and the third country concerned, on the
the basis of which it would be reasonable for the applicant to travel to that country;
b) the minister must ensure that the concept of safe third country can be applied to a country
determined or to a specific applicant. To this end, it carries out a case-by-case examination of the
security of the country for an applicant;
c) the applicant has the right to challenge the application of the safe third country concept on the grounds
that the third country is not sure in its particular case. The applicant is furthermore entitled to
contest the existence of a link between itself and the third country in accordance with point (a). (…) ”.
It follows from Article 31 of the Law of 18 December 2015, cited above, that the Minister may
consider a country to be a safe third country for an applicant for protection
international if it can be concluded, beyond all doubt, that in the country in question, the
the applicant will be treated in accordance with the principles enshrined therein. Thus, before being able to conclude to a
safe third country for an applicant, article 31 of the law of 18 December 2015 obliges the
Minister to examine, as a first step and in general, whether the third country concerned
respects the principles enshrined in paragraph 1 of article 31 of the law of 18 December 2015 and of
ensure, as a second step and on a more individual basis, that the safe third country responds
the requirements set out in the second paragraph of the same article vis-à-vis the applicant.
Since the conditions referred to in both the first and the second paragraph of the prediction
article 31 of the law of 18 December 2015 are cumulative, the fact that one of them is not
completed is sufficient to justify the annulment of the decision of inadmissibility of the request for
international protection.
In this regard, it should be noted that the court is not bound by the order of means
in which they were submitted to him and that he has the faculty of looking at them following a good
administration of justice and its usefulness.
The court has to find that the State part is based in substance on three
elements to assert that the applicant would present a connection link with Moldova.
Thus, she explains that he was born there and returned there twice to visit his
grandparents and that his mother would have Moldovan nationality. The state party adds that it
From the documents retrieved from the applicant's mobile phone, it would appear that he
recently found in Moldova and would speak Romanian and Russian.
Regarding first the assertion that the applicant was born in
Moldova, it is clear that the applicant does not dispute that he was born there. However, he explains
having left the said country with his parents after one year to join Syria and have the nationality
Syrian. In this regard, it emerges from a report in the administrative file drawn up by the
9 Judicial police, expertise section - documents of November 27, 2019 that the documents submitted
to the Luxembourg authorities by the applicant's mother, namely a family record book from the
family ..., an extract from the civil status register concerning the applicant as well as extracts from the
civil status register concerning his brothers and, finally, an extract from the family civil status register
issued in the name of the family ..., were genuine. In view of the authenticity thus verified of said
documents, it is established that the applicant and his two brothers are of Syrian nationality.
Secondly, it should be noted that there is nothing in the file to refute the
Applicant's explanations that he has always lived in Syria. Indeed, the
photographs collected on the applicant's mobile phone, if they possibly establish
that the applicant was temporarily not in Syria, however, do not allow
any conclusion on the applicant's place of stay or on the length of time
he would eventually have left Syria. In view of the said photographs, the court cannot, by
elsewhere, not share the analysis of the state part according to which the applicant would know "a
multitude of people ”in Moldova. Indeed, as specified above, said photographs do not
do not allow a decision to be made to the exclusion of any doubt about the place of stay of the applicant when
of their capture, nor a fortiori to conclude that he was in Moldova. In addition, on
only two of the photographs appearing in the administrative file are represented
people and it is at most seven people, so he certainly wouldn't know how
to be concluded that the applicant would know “a multitude of people” in Moldova.
Third, if the state party claims that the applicant speaks Russian and Romanian,
it should be remembered that the mere fact of speaking the official language of a country is not likely to
create a connection with this country so that you can establish yourself there. In addition, the applicant
disputes to speak these two languages.
Finally, and thirdly, the facts that the Applicant twice visited his
grandparents in Moldova on the occasion of the birth of her two brothers and that the mother of
applicant or of Moldavian nationality does not allow the establishment of a connection link
between the applicant and Moldova such that it would be reasonable for him to travel to that country by
application of article 31 (2) a) of the law of 18 December 2015.
The Minister was therefore unable to validly conclude that there was such a link, so
that the action for annulment brought against the ministerial decision declaring
inadmissible Mr.
there is no need to rule on the other grounds invoked by the applicant, this examination becoming
overabundant.
Regarding the order to leave the territory, the applicant does not invoke any means
specific to this part of the decision.
The Government delegate concluded that this part of the appeal should be dismissed, on the grounds that
application of article 34 of the law of 18 December 2015, the order to leave the territory would follow
directly from the ministerial decision to declare the application for protection inadmissible
Mr. international ....
10 Under Article 34 (2) of the Law of 18 December 2015, "(...) A decision of
Minister constitutes a return decision with the exception of decisions taken under Article 28,
paragraphs (1) and (2), point d) (...) ", the notion of return decision being defined by Article 2
q) of the same law as "the negative decision of the Minister declaring the stay illegal and imposing
the order to leave the territory ", being further noted, in this regard, that if the legislator has not
expressly stated that the decision of the Minister referred to in Article 34 (2), cited above, of the law of 18
December 2015 is a negative decision, it must be admitted, under penalty of voiding the provision
legal meaning of any meaning, that are aimed at the negative decisions of the Minister. Given
that in addition to the decisions taken under article 28 (1) of the law of December 18, 2015, the legislator
expressly and only excluded from this rule inadmissibility decisions adopted on the basis of
of Article 28 (2) d) of the Law of 18 December 2015, it should be noted that the other decisions
inadmissibility provided for in said Article 28 (2), including those referred to in point c) of said provision
legal, are to be qualified as negative decisions constituting an order to leave the territory, under the terms of
articles 2 q) and 34 (2) of the law of 18 December 2015.
It therefore follows from these last legal provisions which order to discharge is the consequence
automatic of the ministerial decision to declare inadmissible the request for protection
international de Monsieur ..., on the basis of article 28 (2) c) of the law of 18 December 2015.
Insofar as the court has just annulled this last decision, the decision concerning
the order to leave the territory therefore incurs, in turn, annulment.
For these reasons,
the administrative tribunal, vacation chamber, ruling in respect of all the parties;
receives the formal appeal for annulment lodged against the ministerial decision
of 1 June 2021 declaring inadmissible the application for international protection of Mr. ... and
ordering to leave the territory;
er
basically declares it justified, therefore annuls the ministerial decision of June 1, 2021 declaring
inadmissible the request for international protection of Mr. ... and ordering to leave the
territory, and refers the case for prosecution to the Minister of Immigration and
Asylum;
orders the State to pay the costs and expenses.
Thus judged by:
Françoise Eberhard, first vice-president,
Michèle Stoffel, first judge,
Geraldine Anelli, first judge,
and read at the public hearing on July 28, 2021 by the First Vice-President, in the presence of
Chief Registrar Xavier Drebenstedt.
s. Xavier Drebenstedt s. Francoise Eberhard
11Certified reproduction of the original
Luxembourg, July 29, 2021
The clerk of the administrative court
12
