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Conditions for migrants in Calais: Reception conditions in Calais: the Conseil d'État has rejected the appeals of the Minister of the Interior and the municipality of Calais
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Statewatch translation from: Conditions d’accueil des migrants à Calais (Link)

"In 2016 the migrant reception centre in Calais was closed. Many migrants were distributed across the country to ensure appropriate care was received. By the beginning of 2017, hundreds of migrants had been found in Calais.

At the request of migrants and NGOs, the interim judge of the Administrative Court of Lille, with a reference to freedom of expression, ordered the Prefect of the Pas-de-Calais and the municipality of Calais to create several measures addressing migrants needs. These include: access to drinking water and water for washing clothes, as well as toilets and access to showers. In addition, the Prefect is instructed to organise departures from Calais to open reception centres in France, where places are available.

The Conseil d'État has rejected the appeals of the Minister of the Interior and the municipality of Calais against this order:

- it considers that the living conditions of migrants reveal a lack of public authority which exposes the persons concerned to inhuman or degrading treatment, thus constituting a serious and manifestly unlawful interference with fundamental rights;

- it considers that the President of the Court of First Instance of the Administrative Court was right to issue the injunctions referred to above.

The facts and the procedure

During the course of 2016, facing a growing influx of thousands of migrants in Calais, mainly on the outskirts known as the "La Lande", public authorities decided to divide migrants caught by a number of reception centres across the country. In this context, it was decided that other structures intended for the reception and accommodation of migrants in "La Lande" would be closed, as to prevent new migrant settlements from being re-established there. However, since the beginning of 2017, several hundred migrants have been found in Calais.

Migrants and NGOs lodged an application with the Administrative Court of Lille, to order a number of safeguard measures so that there would be an end to the serious and manifestly unlawful attacks on the fundamental rights of the hundreds of migrants living in Calais at the end of June 2017.

By an ordinance on 26 June 2017, the President of the Court of First Instance has partially upheld this request:

- to order the Prefect of the Pas-de-Calais to put in place daily searches for unaccompanied children;

- to command the Prefect of the Pas-de-Calais and the municipality of Calais to create several water points outside the centre of Calais in places easily accessible to migrants which should allow them to drink and wash their clothes, as well as toilets and showers;

- to order the Prefect of the Pas-de-Calais to organise departures from Calais, to open reception and centres in France, where places are available.

On the other hand, it has rejected the requests for the creation of a migrant reception centre or a food distribution centre in Calais.

Only the Minister of the Interior and the municipality of Calais appealed against this order to the Conseil d'État.

The decision of the Conseil d'État

By today's decision, the Conseil d'État rejects these appeals.

Beginning with a reminder that it is the responsibility of the authorities with general police powers, i.e the mayor of the territory, and the Prefect for measures exceeding that territory, to ensure that the right for any person not to be subjected to inhuman or degrading treatment is guaranteed.

In the failure of the public authorities to protect persons from inhuman or degrading treatment, it will be possible to take safeguarding measures within 48 hours. The judge, hearing an application for interim measures may, within the framework of a summary procedure, prescribe all measures likely to put an end to the situation resulting from that failure.

Such measures should in principle be provisional, except where no such measure is capable of safeguarding the effective exercise of the fundamental rights, to which it is subject. However, in all cases, the judge in charge of summary order may intervene if the situation is in dispute, and enables them to take the necessary safeguard measures expediently and in a very short period of time.

In the present case, the Conseil d'État finds that several hundred migrants are present in the territory of Calais, including about a hundred children. It notes that these migrants, who are in a state of destitution and exhaustion, have no access to any water, shower or toilet facilities. They cannot wash themselves or their clothes. As a result of various pathologies, they suffer a number of disorders related to poor hygiene, with some having infected wounds as well as severe mental anguish.

The Conseil d'État considers that these living conditions reveal a failure of public authority to protect the persons concerned from inhuman or degrading treatment in a marked manner. This shortcoming thus constitutes a serious and manifestly unlawful interference with fundamental rights.

The Conseil d'État points out that it is not for the judge hearing the application to refute the choice of public authorities to deal with the situation of migrants present in Calais by taking care of them, subject to the implementation of procedures for removal from French territory, in structures adapted to their situation and situated outside the territory of the municipality of Calais with the aim of preventing an uncontrolled influx of migrants.

It considers, nevertheless, that it is for the President of the Court of First Instance to order urgent measures which the situation permits to be taken within 48 hours and which are necessary in order to put an end to serious and manifestly unlawful fundamental rights.

The Conseil d'État inferred from this that the President of the Lille Administrative Court had rightly ordered the State and the municipality of Calais to create, in places easily accessible to migrants, outside the city centre of Calais, several points to access water enabling migrants to drink, wash themselves and their clothes, as well as toilets and showers, be it permanent or mobile in such a way as to allow access for the most vulnerable persons at appropriate times.

It also considers that the order issued to the Prefect of the Pas-de-Calais to organise departures from the commune of Calais to open reception centres and orientation centres in France, to migrants who wish to leave and where places are available would prevent these migrants from settling permanently in Calais under conditions that disregard the right of everyone not to be subjected to inhuman or degrading treatment. It therefore considers that the interlocutory judge of the Administrative Court was right to issue that injunction.

The Council of State therefore rejects the appeals of the Minister of the Interior and the municipality of Calais.

The procedure of referral-freedom

Under Article L. 521-2 of the Code of Administrative Justice, the procedure for interim relief allows the judge to order, within 48 hours, all measures necessary to safeguard a fundamental freedom in the exercise of one of its powers, a serious and manifestly unlawful attack. To obtain satisfaction, the applicant must justify an emergency situation which requires the judge to intervene within 48 hours."

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