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France: Criticism of the law on immigration, integration and nationality of 16 July 2011

28 March 2012

Cimade, a French migrant support organisation, has produced a critical analysis of the new immigration law entitled "law on immigration, integration and nationality" approved on 16 July 2011, which highlights that its key objectives are "surveillance, detention, expulsion and banning". Its three driving axes are identified as:

-developing the mechanisms for the detention and surveillance of foreigners
-considerably reducing procedural guarantees to enable the removal of "unwanted" foreigners in contempt for their human rights and freedoms
-banning people from French territory following expulsion, applicable to everyone who is expelled and very difficult to act against.

The analysis highlights how "administrative detention", a measure that is meant to last for the time that is "strictly necessary" to enable execution of a removal, is turning into a punitive measure per se, in view of the increase in the length of detention that is allowed from 32 to 45 days, while statistics show that a vast majority of successful returns take place during the first 17 days. The extension of the scope of surveillance measures to foreigners includes forms of assignment to residence (one for 45 days, renewable once, and the other for six months, renewable as many times as is deemed necessary), a measure that was previously limited to penal cases and may involve the wearing of electronic tagging bracelets and a duty to report regularly to the police services. Several provisions are introduced to delay intervention by a judge to restrict or prevent the possibility that they may stifle the removal process by ordering the release of foreigners. The order to leave the national territory (obligation de quitter le territoire national, OQTN) is set to become the main form to enact removals, with a number of applicable accessory measures (with or without a time limit for voluntary departure, with or without prior detention, with or without a re-entry ban). A new administrative re-entry ban lasting for up to five years is introduced that may be applied at the discretion of préfectures (offices of the government envoy in charge of security), and may also affect people whose families or other social or professional connections are in France (those who are married to a French person or "legal" foreign resident, people who have worked in France for a long time, or rejected asylum seekers). The authors note that this measure is likely to stop people applying for residence permits and remain in an irregular situation out of fear that they may be subjected to a re-entry ban, which will also limit the likelihood of them seeking regularisation and the impact of measures for "exceptional admission into the territory" envisaged by the government.

Detention

The extension of the length of detention in administrative detention centres (CRAs, centres de rétention administrative) from 32 to 45 days will involve a judge monitoring detention and freedoms (JLD, juge des libertés et de la détention) being seized after five days to request a 20-day extension, at the end of which a further 20-day extension is applicable, regardless of whether the detainee's behaviour has played a part in delaying their removal. Foreigners who are banned from entering French territory as a result of a conviction for terrorism or against whom an expulsion order has been issued for behaviour related to such activities that have been proven in a court, may be held in administrative detention. A JLD may decree their administrative detention for a month, renewable for the same period up to a maximum of six months, if there is a "reasonable prospect of the removal measure being executed" or "no decision to assign them to residence enables adequate control" over these people. The rights of foreigners who are in detention are restricted through measures such as them having to appear before a judge to check whether their detention should be extended or procedures have been duly respected within five days, instead of two and, in any case, they will have to appear before a JLD within seven days from when they were first held in police custody. Foreigners will no longer be informed about their rights when they are notified about a decision to place them in detention but "as soon as possible after they are notified". The analysis by Cimade notes that the possibility to exercise their rights is postponed until the moment when they arrive in the place of detention, leaving a void in the period between notification and arrival in a CRA, and the judge will have to "take into account" specific circumstances such as the simultaneous detention of a large number of foreigners when they evaluate delays in notifying a decision to them, informing them of their rights and the moment when they come into force. Moreover, detainees will no longer receive a copy of the decision to detain them.

The authors note that these measures do not follow the direction required by the Returns Directive that calls for "jurisdictional supervision over the lawfulness of detention as soon as possible", that the basic rights of detainees (to request legal assistance, a translator or a doctor) will only be effectively once they are placed in detention, and that they will be temporarily stripped of any rights during transfers (for instance, from a police station to a detention centre), as none of the applicable regimes (police custody or administrative detention) would apply at that point. This runs contrary to a Court of Cassation ruling from 2006 that established that foreigners should be allowed to exercise the rights that they are recognised in the moment when they are notified of the decision to detain them. Moreover, not giving the foreigners a copy of the decision to detain them, means that neither the foreigner, nor their legal counsel or any associations that intervene on their behalf in detention will be aware of the procedure that was followed or of any irregularities therein. Thus, while a right to appeal the decision within 48 hours is guaranteed, the foreigner may lodge an appeal against a decision that they will not have for the purpose of examining it.

Other issues that the analysis by Cimade raises include the detention of minors, which now becomes formal, with their personal details included in the detention register, whereas they were previously deemed to be accompanying their parents. The authors note that this detention of minors should be forbidden in principle in view of the duty to safeguard children's best interest, and that it contravenes art. 3 of the ECHR (on inhuman and degrading treatment), art. 3.1 of the UN Convention on the Rights of Children and arts. 17.1 and 17.5 of the so-called Returns Directive. The reform is deemed to worsen the "psychological consequences of detention on children", to run contrary to the principles whereby minors should only be detained as a "last resort" while bearing in mind "the child's best interest" and that "vulnerable people" should be protected from detention.

Assignment to residence

New mechanisms are introduced to enable the préfet to assign people to specified places of residence:

-people who cannot leave France would receive a six-month assignment (renewable) and be made to reside in places set by the administration, reporting regularly to a police station.
-assigning people for whom there is a "reasonable prospect of removal" and who have provided adequate guarantees that they would not abscond to a specific place of residence for 45 days, renewable once.
-assigning people to a place of residence while they must also wear an electronic bracelet.

The authors note that although this may be presented as a measure to improve the lot of third-country nationals as an alternative to detention, in fact, it does not take account of their freedom to move and of how they may survive, considering that they are not allowed to work during this time.

An important aspect that is highlighted is that several provisions seek to limit or postpone judicial scrutiny of decisions, with the judge viewed as an "obstacle" for attempts to return foreigners in an "irregular" situation. Moreover, the grounds for punishing procedural irregularities, which may lead to a foreigner's release, are restricted.

Returns and re-entry bans

As for removal measures, they are divided into:

-an order to leave the national territory (obligation de quitter le territoire national, OQTN) with a month allowed to leave voluntarily;
-an OQTN without a time limit for voluntary departure;
-a prefect's order to be escorted to the border (arrêté préfectoral de reconduite à la frontière, APRF).

In the first case, an OQTN no longer applies only to people who are refused residence permits or their renewal, or have had theirs revoked, but also to three additional situations, namely:
-if they cannot prove that they have entered French territory lawfully;
-if they stayed for longer that their visa allowed or beyond the three-month period that is allowed since their entry, if it applies to them (EU nationals);
-and if they did not request a renewal of their permit but have stayed beyond its expiry.

The second case, whereby a period for "voluntary departure" is not provided, may be a result of a number of circumstances:
-"if the foreigner's behaviour constitutes a threat for public order";
-if the application for their residence permit to be issued or renewed is "manifestly unfounded" (which the authors consider vague and a possible cause for unduly refusing "voluntary departure" periods) or "fraudulent";
-if the foreigner is deemed liable to abscond (for which six conditions are set, some of them as wide as "not applying for renewal of their residence permit", which is viewed as an attempt to elude their duty to leave the territory upon expiry).

In view of these changes, the analysis argues that too much discretion or latitude is provided to the authorities to exclude people from ordinary procedures and treatment. This argument is all the more convincing because of the new regime governing re-entry bans. Re-entry bans, termed interdiction de retour sur le territoire français (IRTF), is an accessory measure to the OQTN that may be adopted to banish people from the entire EU territory for a maximum of five years. Elements that should be considered in issuing a re-entry ban include the length of their stay in France, the nature and length of their links to France, whether they have been issued a removal measure in the past and whether their presence represents a threat to public order.

The foreigner's situation would affect the duration of an IRTF:
-if they have not been granted a "voluntary departure" period attached to their OQTN, a three-year re-entry ban may be issued;
-if they have been granted a "voluntary departure" period, a two-year re-entry ban may be issued;
-if they have failed to comply with their "voluntary departure" period and had not been issued a re-entry ban, a two-year IRTF may be imposed on them;
-if they had been issued a re-entry ban, and stayed beyond the period they were granted for "voluntary departure" or, if they did comply with their OQTN but returned before their IRTF (re-entry ban) expired, a two-year extension to their ban may be issued.

The authors stress that the way in which this regime is structured may result in the issuing of IRTFs becoming a standard practice, noting that this is made even worse by the fact that people's data would automatically be entered in the FPR (fichier des personnes recherchées, database on wanted people) and SIS (Schengen Information System) databases, thus banning them from the entire Schengen area.

While certain circumstances (see above) must be taken into account, the analysis notes that this extremely damaging measure does not explicitly exclude any category of people from its reach, noting that many situations would justify people reasonably wishing to reside or visit the country - if they are married to a French person, parents of a French child, young children who are over 13 and in schools, rejected asylum seekers or workers who had built up a life for themselves in France. Restrictions in the Returns Directive concerning the victims of people trafficking and other cases in which humanitarian considerations should prevail, are deemed not to have been duly respected in the law.

A prefect's order to be escorted to the border (arrêté préfectoral de reconduite à la frontière, APRF) may be issued if, during the time when they have a valid visa or during the three-month period following their lawful entry when a foreigner is allowed in French territory, they have failed to comply with legal employment requirements or their "behaviour constitutes a threat to public order" as a result of their having committed acts that are liable to incur a penal punishment (theft, aggressive begging, illegal occupation of a public or private land) - which appears to be framed to target Roma people (author's note).

Other concerns

Other aspects included in the report are critical evaluations of the expansion in the use of video-conferences in assessing asylum claims, the restriction of access to legal aid in asylum cases during appeals, the expansion of the grounds for deeming an asylum application "fraudulent", for which fast-track rejections are provided, and the possibility of placing foreigners who have entered France illegally in the nearest "waiting zone" (areas at border points where a special regime is in place) to the place where they were caught, in cases involving the arrival of large numbers of people. The regime to punish "marriages of convenience" (mariages blancs, lit. "white weddings"), which may result in up to five years in prison and a 15,000-euro fine, is extended to so-called "grey weddings" (mariages gris), whereby one of the spouses has "concealed their intentions to their spouse". Moreover, the law attempts to erode the rights of foreigners who are EU nationals during their three-month period of lawful residence, thus undermining the rights of all EU nationals in France in a blatant attempt to target Roma people, gipsies and travellers.

Sources

"Principales dispositions de la loi du 16 juin 2011 relative à l'immigration, à l'intégration et à la nationalié", July 2011.

Full-text of the immigration law: "LOI n° 2011-672 du 16 juin 2011 relative à l'immigration, à l'intégration et à la nationalité"

Previous Statewatch coverage:

France: Collective expulsions of Roma people undermines EU's founding principles, November 2010
France: Immigration law amendment to turn expulsion of EU nationals into routine, September 2010