Refugee Survey Quarterly, 2017, 36, 35–60
doi: 10.1093/rsq/hdw026
Advance Access Publication Date: 30 January 2017
Article
Undesirable and Unreturnable Migrants under
French Law: Between Legal Uncertainty and
Legal Limbo
Chloé Peyronnet*
ABSTRACT
This article examines how French law defines and deals with undesirable and unreturnable migrants in a time when the political context is particularly tense. “Undesirability”
refers to the situation of migrants who are subjected to a deportation measure as they
are deemed a threat to public policy, while “unreturnability” refers to migrants who are
subject to a deportation measure that cannot be enforced. I will discuss the way
French authorities assess the undesirability of non-nationals, and demonstrate that
they enjoy a wide degree of discretion in this respect. I will then propose a typology of
the reasons for unreturnability, which are numerous and not necessarily connected to
the behaviour of the migrant that is subject to the deportation measure. Finally and
most importantly, I will focus on the tools French law provides for the management of
undesirable and unreturnable migrants. In this respect, I will demonstrate that these individuals are either subject to de facto unlimited restrictions to liberty, or left to their
own devices with a precarious liberty that comes with lowered rights. We will see that
ultimately, they find themselves trapped between legal uncertainty and legal limbo,
thus they are “expelled” from the rule of law.
K E Y W O R D S : migrants, France, threat to public policy, legal uncertainty, legal limbo,
rule of law
1. INTRODUCTION
In France, non-nationals who are deemed a threat to public policy can be subject to
specific deportation measures that make them “undesirable migrants”. When a nonnational is subject to a deportation measure that cannot be enforced, he is said to be
an “unreturnable migrant”. Both of these situations can cumulate.
Non-nationals that are deemed a threat to public policy can be subject to an expulsion measure (which is an administrative measure) or to a ban from the territory
(Interdiction du Territoire Français or ITF, which is a criminal penalty).1 These two
* Chloé Peyronnet is a Ph.D. candidate and a part-time student lecturer at Université Jean Moulin Lyon 3
(France). Email: [email protected]. The author would like to thank Dr David J. Cantor and
Dr Joris Van Wijk for their trust and their benevolent follow-up. She is also deeply grateful to Dr Sarah
Singer and Dr Maarten Bolhuis for their extensive and valuable feedback. Finally, she remains indebted to
all of the participants of the Undesirable & Unreturnable conference.
1 Translated by the author from interdiction du territoire français.
C Author(s) [2017]. All rights reserved. For Permissions, please email: [email protected]
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Chloé Peyronnet j Undesirable and Unreturnable Migrants under French Law
types of deportation measure are specifically imposed on non-nationals who are considered to pose a threat to public policy and as such are “undesirable”, irrespective of
their migratory status. Although French law does not provide a legal definition of
these terms, it is necessary to use them in order to isolate deportation measures
imposed on non-nationals on the ground that they are a threat to public policy from
deportation measures that are based on their migratory status.2
In this article, I will discuss the way French authorities assess the undesirability of
non-nationals and demonstrate that they enjoy a wide degree of discretion in this respect. I then propose a typology of the reasons for unreturnability, which are numerous and not necessarily connected to the behaviour of the migrant that is subject to
the deportation measure. Finally and most importantly, I will focus on the tools
French law provides for the management of undesirable and unreturnable migrants. In
this respect, I will demonstrate that these individuals are either subject to de facto unlimited restrictions to liberty, or left to their own devices with a precarious liberty that
comes with lowered rights. We will see that ultimately, they find themselves trapped
between legal uncertainty and legal limbo, thus they are “outside” the rule of law.
Assessing the scale of the phenomenon of undesirable and unreturnable migrants
in France proves to be difficult, if not impossible. Indeed, official statistical data only
concerns the number of removals of irregular migrants.3 It does not specify the
ground of the measure pursuant to which the removal occurred. European data is no
more useful.4
While it is possible to describe the French legal framework that applies to undesirable and unreturnable migrants, assessing actual practices in France cannot be done
properly without serious fieldwork that goes beyond the scope of this article.
Consequently, regarding actual practices, this article will only look into individual
cases that have been covered by the media or documented by non-governmental organisations (NGOs), though it is important to highlight that they do not necessarily
give a complete picture of the phenomenon.
Before I get to the main body of this article, I will provide the reader with a quick
overview of the challenges French authorities are currently confronted with regarding
undesirable and unreturnable migrants.
In the aftermath of the terrorist attacks that struck Paris in January 2015, migration
policy and counter-terrorist measures have been increasingly intertwined, enhancing
the assimilation of migrants with threat to public policy.5 After 13 November 2015,
2 Deportation measures that are linked to an irregular migratory status are: order to leave the French territory (OQTF), prefectural order to go back to the border (APRF), interdiction to come back on French
territory (IRTF), “Schengen deportation”, and “Dublin deportation”. Translated by the author from “obligation de quitter le territoire français”, “arr^eté préfectoral de reconduite a la frontière”, and “interdiction de retour
sur le territoire français”.
3 See the French Government website: http://www.immigration.interieur.gouv.fr/Info-ressources/Statistiques/
Tableaux-statistiques/L-eloignement-des-etrangers-en-situation-irreguliere (last visited 12 Dec. 2016). INSEE,
the national institute that displays official statistical data, does not deal with deportation but only with entries,
work, education, etc.
4 See Eurostat website: http://ec.europa.eu/eurostat/web/asylum-and-managed-migration/publications
(last visited 12 Dec. 2016).
5 J. Legendre & G. Gorce, Rapport d’information au nom de la commission des affaires étrangères, de la défense
et des forces armées sur les migrants, Report No. 795, Sénat, 13 Jul. 2016, 8 and 34.
Refugee Survey Quarterly
37
the French Government decreed a state of emergency that partly ousted the judicial
courts from their role as “guardians of individual freedoms”6: it allows administrative
authorities to take measures such as home custody against “any person towards whom
there are serious reasons to think that his behaviour constitutes a threat for security or
public policy”,7 and it entrusts the administrative courts with the legal review of these
measures.8 Moreover, under this state of exception, home custody and some additional
constraining measures have no time limit.9 Following the tragedy of the attack in Nice
in July 2016, it was extended for the fourth time.10 This increasing limitation of individual liberties has drawn criticism from French scholars,11 NGOs,12 and both the
Secretary General13 and the Commissioner for Human Rights14 of the Council of
Europe. However, none of them drew a parallel between this situation and the fact
that a similar system applies permanently to non-nationals that are deemed a threat to
public policy, so that the new version of the Code of the entry and stay of aliens on
the French territory (CESEDA)15 entered into force amidst general indifference.16
Yet, regarding the increase of terrorist attacks targeting France and the lack of solidarity between the Member States of the European Union (EU) when it comes to
6 Translated by the author from Art. 66 of the French Constitution.
7 From 14 Nov. 2015 to 26 May 2016, 528 home custody measures were ordered under the state of emergency. See the Assemblée nationale, available at: http://www2.assemblee-nationale.fr/14/commissions-per
manentes/commission-des-lois/controle-parlementaire-de-l-etat-d-urgence/controle-parlementaire-de-letat-d-urgence/donnees-de-synthese/donnees-relatives-a-l-application-de-l-etat-d-urgence-du-14-novem
bre-2015-au-21-juillet-2016/mesures-administratives-prises-en-application-de-la-loi-n-55-385-du-3-avril1955 (last visited 12 Dec. 2016). Under the ordinary law, administrative authorities can adopt home custody measures only towards migrants in an irregular situation.
8 Art. 14-11 of Law No. 55-385 of 3 Apr. 1955 as amended by Law No. 2016-987 of 21 Jul. 2016.
9 They are supposed to become null and void when the state of emergency ends, but they can be renewed
ad litem as long as the latter is extended. See Art. 14 of Law No. 55-385 of 3 Apr. 1955 read in the light
of DC No. 2015-527 QPC, 22 Dec. 2015 (Constitutional Court case).
10 See Art. 1 of Law No. 2016-987 of 21 Jul. 2016.
11 See the volunteer intervention of 450 scholars supporting the request of the Ligue des droits de l’homme
aiming to oblige the French Government to put an end to the state of emergency, available at: http://
combatsdroitshomme.blog.lemonde.fr/files/2016/01/LDH-et-autres-refere-etat-durgence-Interventionuniversitaire-jaune.pdf (last visited 12 Dec. 2016); O. Beaud & C. Guérin-Bargues, “L’état d’urgence
de novembre 2015: une mise en perspective historique et critique”, Jus Politicum, No. 15, Jan. 2016; A.
Lambert & L. Braconnier, “La marge de manœuvre de la France dans le déclenchement d’un régime
dérogatoire aux libertés fondamentales, une dénaturation de l’article 15 de la CEDH ?”, La Revue des
Droits de l’Homme, 22 Jan. 2016, available at: https://revdh.revues.org/1778 (last visited 12 Dec. 2016).
12 La Cimade, “Sortir de l’état d’urgence”, Press Release, 17 Dec. 2015, available at: http://www.lacimade.
org/sortir-de-letat-durgence/ (last visited 12 Dec. 2016); Amnesty International, Report 2015/16: The
State of the World’s Human Rights, London, Amnesty International, 2016, available at: https://www.am
nesty.org/en/documents/pol10/2552/2016/en/ (last visited 12 Dec. 2016).
13 T. Jaglang, Letter to the President of the French Republic, François Hollande, 22 Jan. 2016.
14 N. Muiznieks, “Luttons contre le terrorisme dans le respect du droit”, Le Monde, 3 Feb. 2016, available at:
http://www.lemonde.fr/idees/article/2016/02/03/luttons-contre-le-terrorisme-dans-le-respect-du-droit_
4858281_3232.html (last visited 12 Dec. 2016).
15 Translated by the author from Code de l’entrée et du séjour des étrangers et du droit d’asile. Last
amended by Law No. 2016-274 of 7 Mar. 2016.
16 The situation of unreturnable and undesirable migrants is regulated by the CESEDA. Only the aliens’
rights association Gisti publicly reacted to this reform. See Gisti, Anafé, La Cimade, Fasti, Ligue des droits
de l’Homme and Syndicat de la magistrature, “Projet de loi immigration: a quand une vraie réforme,
respectueuse des droits des étrangers?”, Press Release, 30 Jul. 2015, available at: http://www.gisti.org/
spip.php?article5005 (last visited 12 Dec. 2016).
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Chloé Peyronnet j Undesirable and Unreturnable Migrants under French Law
“migration crisis” management,17 undesirable and unreturnable migrants pose greater
political, legal, and practical challenges than ever to French authorities, with legal certainty and the rule of law at stake.
Politically, the assessment of the undesirability of non-nationals and its consequences are a particularly sensitive issue, as migrants tend to be depicted as threats
coming from the outside18 be this security threats, threats to social cohesion, and/or
threats to the economic welfare of France.19 By trying to demonstrate its ability to protect its population from such harms, the French Government has been preoccupied
with the “war on terrorism”, as demonstrated by the declaration of President François
Hollande on 16 November 2015,20 and the rise and fall of the draft constitutional
amendment “Protection of the Nation”.21 More broadly, French authorities have to
deal with reasons for unreturnability that are linked to legal, technical, or diplomatic
concerns for which the legal framework does not provide a ready solution.
2. RE A SO NS F O R U ND E S IR A BI LI TY
There are two situations that make a non-national an undesirable migrant: (1) when
he is considered “a serious threat to public policy”22; and (2) when he has been convicted of one of the criminal offences that can be punished by an ITF as a primary or
as an additional penalty. Considering that migratory status is irrelevant in relation to
“undesirability”, non-nationals are always in a precarious situation: irrespective of the
length of their stay or the degree of their integration in France, they can be subject
to an expulsion measure or to an ITF penalty if they find themselves in one of the
aforementioned situations. For this precariousness to be consistent with the principle
of legal certainty, the concept of “threat to public policy” should be clearly defined
17 Legendre & Gorce, Rapport d’information au nom de la commission des affaires étrangères, de la défense et
des forces armées sur les migrants, 56 58.
18 C. Chocquet, “Le terrorisme est-il une menace de défense?”, Cultures & Conflits, 44, 2001, 19 64.
19 See for instance “Nicolas Sarkozy: ‘Brexit ou pas, il faudra refonder profondément le projet européen’”,
Le Monde, 17 May 2016, available at: http://www.lemonde.fr/politique/article/2016/05/17/nicolas-sar
kozy-ce-qui-se-passe-en-autriche-pourrait-arriver-en-france_4920502_823448.html (last visited 12 Dec.
2016), where the leader of the right-wing party Les Républicains asks for a “Schengen 2” that would not
chec de l’intégration:
allow freedom of movement for third-country nationals. See also Y. Roucaute, “E
pourquoi la France doit ^etre plus exigeante sur les devoirs qui s’imposent a ses immigrés après s’^etre beaucoup préoccupée de leurs droits”, Atlantico, 18 Nov. 2015, available at: http://www.atlantico.fr/decrypt
age/echec-integration-pourquoi-france-doit-etre-plus-exigeante-devoirs-qui-imposent-immigres-yves-rou
caute-2449803.html (last visited 12 Dec. 2016).
20 Translated by the author. In his speech before Congress on 16 Nov. 2016, François Hollande used the
word “war” 15 times about terrorism and stated: “Nous sommes dans une guerre contre le terrorisme djihadiste qui menace le monde entier et pas seulement la France” (I translate as: “we are at war against
jihadist terrorism that threatens not only France but the whole world”); available at: http://www.elysee.
fr/declarations/article/discours-du-president-de-la-republique-devant-le-parlement-reuni-en-congres-3/
(last visited 12 Dec. 2016).
21 At the end of 2015, the Government proposed a draft constitutional amendment in order to enshrine in
the Constitution the possibility of depriving the French nationality of bi-national citizens convicted of certain serious crimes. It was finally abandoned due to strong arguments in the political sphere, and especially within the majority. See Art. 2 of the draft constitutional amendment “Protection de la Nation” No.
3381 of 23 Dec. 2015 and President of the Republic, “Déclaration au sujet de la revision constitutionnelle”, 30 Mar. 2016, available at: http://www.elysee.fr/declarations/article/declaration-du-presi
dent-de-la-republique-au-sujet-de-la-revision-constitutionnelle-2/ (last visited 12 Dec. 2016).
22 Translated by the author from Art. L521-1 of the CESEDA.
Refugee Survey Quarterly
39
and the list of criminal offences that can trigger an ITF penalty should not be too
widely drawn. Indeed, under French law, the principle of legal certainty “supposes
that citizens are, without insurmountable efforts from their part, able to determine
what is allowed and what is forbidden by applicable law”.23 As such, legal certainty is
the condition of the effectiveness of the rule of law, with which compliance is
imposed both in the domestic context and through international obligations. Inter
alia, this is “a concept inherent in all Articles of the [European Convention of
Human Rights (ECHR)]” and “also [relates] to the quality of the law”.24 Thus, it entitles non-nationals with the right to know how to behave not to be subject to an expulsion measure or sentenced to an ITF penalty. However, the study of French
legislation gives rise to some concerns in this respect.
2.1. The concept of “serious threat to public policy” and expulsion measures
Expulsion is a deportation measure ordered by the Prefect, who is the representative
of the State at the local level. Theoretically, an expulsion measure can be appealed
before administrative courts within 2 months of the date of the order.25 Article
L521-1 of the CESEDA states that “expulsion can be ordered if the stay of an alien
in France poses a serious threat to public policy”.26 Therefore, it is of major importance to be able to define such a threat. In France, the Cour de cassation27 defines public policy with sibylline words: it would be an “ensemble of principles of universal
justice considered by French opinion as having an absolute international value”.28
Moreover, neither black letter law nor jurisprudence gives any precision about what
would represent a threat to public policy, or what would be a “serious” threat. As a
result, “serious threat to public policy” appears to be a broad notion rather than a
legal concept. Here the French legislator takes full advantage of the fact that the
European Court of Human Rights (ECtHR) recognised that “States have the undeniable sovereign right to control aliens’ entry into and residence in their territory”.29 However, jurisprudence of the then Court of Justice of the European
Communities (CJEC) regarding EU citizens is interesting in this respect. In the landmark case Rutili v. France,30 it was judged that:
The concept of public policy must, in the community context [. . .], be interpreted strictly, so that its scope cannot be determined unilaterally by each
member State without being subject to control by the institutions of the community. Accordingly, restrictions cannot be imposed on the right of a national
of any member State to enter the territory of another member State, to stay
tat, Sécurité juridique et complexité du droit, Rapport public,
23 Translated by the author from Conseil d’E
2006, No. 57, 284.
24 ECtHR, Amuur v. France, Judgment, Appl. No. 19776/92, 25 Jun. 1996, para. 50; ECtHR, Malone v.
United Kingdom, Judgment, Appl. No. 8691/79, 2 Aug. 1984, para. 67.
25 “Theoretically” because the appeal is non-suspensive, which means a person may be removed before he
has been able to appeal the measure.
26 Translated by the author.
27 Highest judicial court in France.
28 Translated by the author from Cour de cassation, L’ordre public, annual report, 2013, Ch. 2.
29 ECtHR, Amuur v. France, para. 41.
30 CJEC, Rutili v. France, Judgment, Case 36/75, 28 Oct. 1975.
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Chloé Peyronnet j Undesirable and Unreturnable Migrants under French Law
there and to move within it unless his presence or conduct constitutes a genuine and sufficiently serious threat to public policy. In this connexion article
3 of directive No. 64/221 imposes on member States the duty to base their decision on the individual circumstances of any person under the protection of
community law and not on general consideration. [. . .] Taken as a whole, these
limitations placed on the power of member States in the respect of control of aliens
are a specific manifestation of the more general principle, enshrined in articles 8, 9,
10 and 11 of the Convention for the Protection of Human Rights and Fundamental
Freedoms [. . .], and in article 2 of Protocol 4 of the same Convention [. . .], which
provide, in identical terms, that no restrictions in the interests of national security or
public safety shall be placed on the rights secured by the above-quoted articles other
than such as are necessary for the protection of those interests ‘in a democratic
society’.31
Here, the CJEC did not only limit the margin of appreciation of Member States regarding the restrictions to freedom of movement of EU citizens, it also made it a particular application of the proportionality test of Article 2 of Protocol 4 of the ECHR,
which guarantees freedom of movement. Thus, it is regrettable that the ECtHR
never seized the opportunity to transpose the limitations that the CJEC imposed on
the margin of appreciation of Member States in the ECHR framework. Such an approach would strengthen the obligation of Contracting States to justify why they
consider a non-national to constitute a threat to public policy, be it a EU citizen or
not. Although the ECtHR cannot take it upon itself to say it, French administrative
authorities enjoy a margin of appreciation that is far too wide to be consistent with
the rule of law, and even more so the principle of legal certainty that is enshrined in
their own national legal framework. This is especially concerning as expulsion is an
administrative measure that does not fall within the criminal sphere, with the consequence that non-nationals who are subject to expulsion do not enjoy the procedural
guarantees of Article 6 of the ECtHR32 and do not have access to the judicial courts.
2.2. The commission of a criminal offence and ITF penalty
An ITF is a penalty with a double effect: (1) the non-national must leave French territory immediately; and (2) he is not allowed to return for a period of between
10 years to indefinitely. However, an ITF is mostly imposed as an additional penalty
along with a prison term. In such cases, the person must complete his prison term
before being deported (this situation is informally known as a “double-penalty” by
academics, activists, and legal practitioners).33
According to Article 131-30 of the Criminal Code (CP),34 a non-national can be
sentenced to an ITF penalty when prescribed by law. Thus, it is necessary to look to
the Criminal Code for scattered provisions prescribing an ITF as a primary or
31 Ibid., paras. 27–28 and 32 (emphasis added).
32 ECtHR, Engel v. The Netherlands, Judgment, Appl. Nos. 5100/71, 5101/71, 5102/71, 5354/72, and
5370/72, 8 Jun. 1976, para. 81.
33 S. Body-Gendrot & C. Wihtol de Wenden, Policing the Inner City in France, Britain, and the US, New
York, Palgrave Macmillan, 2014.
34 Table information compiled by the author on the basis of Code pénal (author’s translation).
Refugee Survey Quarterly
41
Table 1: Criminal offences that can be punished by an ITF penaltya
Relevant provision of
the Criminal Code
Offence or category of offences
Article 213-2
Article 221-11
Article 221-16
Article 222-48
Crimes against humanity and human person.
Attempts on the life of a person.
Forced disappearance.
Torture and acts of barbarianism, assault leading to permanent disability or mutilation, repeated assault on a
child/children under the age of 15 years or on a person
whose particular vulnerability is apparent or known by
the perpetrator if it led to the death of the victim or to
permanent disability of mutilation, rape, sexual assault,
drug trafficking, or poisoning.
Human trafficking, pimping, exploitation of begging, or
exploitation of curbside selling.
Aggravated theft.
Aggravated extortion.
Aggravated concealment.
Destruction, degradation, or accidental deterioration of
goods belonging to a third person by effect of a blast
or a blaze started because of non-compliance with legal
security obligations with aggravating circumstances.
Money laundering.
Harm to fundamental interests of the Nation.b
Terrorism.c
Participation in a gathering while carrying a weapon.
Direct incitement to armed gathering.
Participation in a demonstration or a public meeting
while carrying a weapon.
Participation in a combat group or a dissolved
movement.
Trespassing or maintenance in a school without authorisation, in group or while carrying a weapon.
Passive or active corruption involving judges, police
agents, or prison staff.
Harm to public administration and to the action of the
justice of the European Communities, of a Member
State of the EU, of other States or of other international public organisations.d
Forgery.
Counterfeit currency.
Falsification of documents or of public fiduciary
capacities.
Article 225-21
Article 311-15
Article 312-14
Article 321-11
Article 322-16
Article 324-8
Article 414-6
Article 422-4
Article 431-5
Article 431-6
Article 431-12
Article 431-19
Article 431-27
Article 434-46
Article 435-14 (C)
Article 441-11
Article 442-12
Article 443-7
(Continued)
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Chloé Peyronnet j Undesirable and Unreturnable Migrants under French Law
Table 1: (continued)
Relevant provision of
the Criminal Code
Offence or category of offences
Article 443-8
Article 462-4
Falsification of marks of the authority.
War crimes.
a
Table information compiled by the author on the basis of CESEDA (author’s translation).
Article 410-1 CP specifies that “harm to fundamental interests of the Nation” means harm to its independency, its territorial integrity, its security, the Republican form of its institutions, its means of defence and of diplomacy, the safety
of its population in France and abroad, the balance of its natural environment, of the essential components of its economic and scientific potentials, and of its cultural heritage. Articles 411-1 to 412-8, 414-1 to 414-9, 413-1 to 413-4,
413-10, and 413-11 list offences that are considered as such harm.
c
Articles 421-1 to 422-7 list offences that are considered as terrorism.
d
Articles 435-1 to 435-13 list the offences that are considered as such harm.
b
additional penalty. Table 1 collates all the relevant provisions in this respect. When a
wide range of offences falls under a category, Table 1 only refers to the said category.
In such cases, provisions that list all of the offences that fall under a category are displayed in a footnote.
Table 1 demonstrates that an ITF penalty can be imposed for a wide range of offences. While on their face all of these offences appear to be serious crimes, direct incitement to armed gatherings covers a wide range of situations. For instance, it is not
rare to see music groups condemned as such because of their lyrics.35 Moreover, the
numerous offences covered by categories such as terrorism are generally defined in
broad terms. A number of situations can, therefore, lead a non-national to be sentenced to an ITF as a primary or additional penalty. That being said, consistency
with the principle of legal certainty in this area is greater than in the case of expulsion
as a result of “serious threat to public policy”: although offences are not always
clearly defined, there is still an exhaustive list of offences that can trigger an ITF penalty, while “threat to public policy” covers an unlimited number of situations. The
predominant concern in this area lays in the possibility for the State to exercise considerable discretion in choosing between ITF and expulsion, thus between a procedure where Article 6 of the ECHR applies and one where it does not. Indeed, if a
non-national is considered to pose a threat to public policy, he can be subjected to
an expulsion measure as well as being prosecuted, depending on the decision of a
representative of the State (the Prefect or the Procureur de la République). Most of
all, as we will see when discussing how unreturnability is dealt with by the authorities, expulsion measures and ITF penalties can cumulate successively, creating an
endless loop of deportation measures that cannot necessarily be enforced.
3 . RE A S ON S F O R U NR E TUR NA B I LI TY
Non-nationals who are subjected to an expulsion measure or ITF penalty cannot always be deported. Indeed, the authorities can be confronted with several obstacles in
the enforcement of such measures, be they legal or practical.
35 A. Schumann, “Le rap en France, expression de rage et de violence de la jeunesse Black-Blanc-Beur”,
in I. Bazié & H.-J. Lüsebrink (eds.), Violences postcoloniales. Représentations littéraires et perceptions médiatiques, Berlin, Lit Verlag, 2011, 315 326.
Refugee Survey Quarterly
43
3.1. Legal obstacles
In the previous section, we saw that the State enjoys a wide degree of discretion in
assessing the “undesirability” of non-nationals. However, the French legal framework
has had to evolve following the rulings of the ECtHR and the Court of Justice of the
European Union (CJEU). As a result, several forms of protection against removal
now exist, but the possibilities for the authorities to overcome these legal obstacles
to deportation are defined in such a vague way that it can prove very difficult to discern the situations in which they should effectively be applied.
Protection against expulsion and protection against ITF are not entirely similar.
Regarding protection against expulsion, we can distinguish three types of relative
protection (RP1, RP2, and RP3) and one type of (theoretically) absolute protection
(AP).36 In the case of ITF, there are also two types of relative protections (RPI and
RPII), but no absolute protection.37 Relative protection can be overruled by the
authorities (for expulsion measures) or by a judge (for ITF penalties) if a certain degree of threat or seriousness of the offence is demonstrated. As this framework is particularly complex, the relevant provisions regarding the types of protection, the
specific situations excluded from protection, and the way for the authorities or the
judge to overcome it are classified and displayed in Tables 2 and 3.38 Aside from relative protection and absolute protection, “quasi-absolute protection” is used to refer
to the protection of non-nationals that would face a risk of persecution in the return
State, known as the principle of non-refoulement.39 Even if the CESEDA does not
provide for such a protection regarding undesirable migrants, courts apply it to the
latter by reference to Article 3 of the ECHR and to rulings by the ECtHR and the
CJEU inspired by the 1951 Refugee Convention.40
3.1.1. Relative protection
As can be seen from Tables 2 and 3, the situations in which a non-national can enjoy
relative protection are numerous, but mainly relate to three areas: (1) private and
family life; (2) health situation; and (3) citizenship of the EU or a Member State of
the Schengen Area or of the European Economic Area.
In spite of the excessive precision of the criteria that must be fulfilled in order to
enjoy relative protection on one of these grounds, compliance with the principle of
legal certainty is still of concern as regards expulsion measures. Indeed, the different
degrees of threat that the authorities must demonstrate in order to overcome relative
protection are defined with broad notions that do not have precise legal meaning.
For instance, it is unclear what constitutes “behaviour that is likely to be detrimental
to the fundamental interests of the State”, and what kind of threat makes expulsion a
“serious necessity for the safety of the State or for public safety”.
36
37
38
39
See Table 2.
See Table 3.
Provisions in annexes were translated by the author.
See Art. 33 of the Convention relating to the Status of Refugees, 189 UNTS 150, 28 Jul. 1951 (entry into
force: 22 Apr. 1954) (1951 Refugee Convention).
40 See for instance Cass. civ. 1ère, 25 Jun. 2014, No. 13-23940, available at: https://www.legifrance.gouv.fr/
affichJuriJudi.do?idTexte¼JURITEXT000029155223 (last visited 12 Dec. 2016).
Relevant provision of
the CESEDA
Aliens benefitting
from protection
L521-1
Child under
the age of
18 years.
EU/Schengen Area
State national and
members of his
family.
Resident in France from
the age of 13 years or
less.
More than 20 years lawful residence in France.
More than 10 years lawful residence in France
and:
married to a French national for at least 4
years,e
married to an alien who
has normally resided in
France since the age of
13 years or less and
having lived together
since marriage, or
Has a French minor
child residing in France
for whom he has effectively contributed to the
needs and education
since the child’s birth
or for at least 1 year.b
Alien married to a
French national for at
least 3 years and having
lived together since
marriage.c
Alien who lives in France
in a regular situation
for more than 10 years,
except if he held a student residence permit
for the whole time.
(Continued)
L521-4
AP
L521-5
RP3
L521-3
RP2
Absolute
protection
L521-2
RP1
Relative
protection
No
protection
Table 2: Protection against expulsiona
44
Chloé Peyronnet j Undesirable and Unreturnable Migrants under French Law
Specific situations
excluded from
protection
Table 2: (continued)
No
protection
has a French minor child
residing in France for
whom he has effectively
contributed to the
needs and education
since the child’s birth
or for at least 1 year.
4. Resident in France
and health situation requires medical supervision, if the absence of
such supervision could
have exceptionally serious consequences and
he could not enjoy appropriate medical care
in the State of return.
Situation 3 if the expulsion measure was
ordered following
Deferred pension paid by
a French institution
due to workplace accident or disease.d
5. EU/EEA or Swiss
National with 10 years
lawful residence in
France.g
Alien was sentenced to a
prison term of at least
5 years.
RP2
RP1
Relative
protection
RP3
(Continued)
AP
Absolute
protection
Refugee Survey Quarterly
45
Serious necessity for the
safety of the State or
for public safety.
RP1
RP3
Personal behaviour
that constitutes a
genuine, current,
and sufficiently serious threat to a fundamental interest of
society.f
RP2
offences committed towards husband or
spouse, his children or
children for whom he
has parental authority.
Behaviour that is likely
to be detrimental to
the fundamental interests of the State, or
that is linked to terrorist activities, or which
constitutes explicit and
intentional incitements
to discrimination, hatred, or violence against
a specified individual
or a specified group.
Relative
protection
AP
Absolute
protection
b
Table information compiled by the author on the basis of CESEDA (author’s translation).
Alien must be non-polygamous.
c
Under the condition that the French husband or wife still has French nationality.
d
Under the condition that his permanent disability rate is at least 20 per cent.
e
Under the condition that the French husband or wife still has French nationality. Alien must be non-polygamous.
f
Having regard to circumstances including the length of residence, age, health, family and economic situation, social and cultural integration in French society, and the intensity of links with the State of
origin.
g
The European Economic Area (EEA) is an international organisation that makes Norway, Liechteinstein and Iceland part of the Union’s internal market.
a
Serious threat to public policy.
No
protection
Nature of the threat
that the authorities
must demonstrate
to exclude from
protection
Table 2: (continued)
46
Chloé Peyronnet j Undesirable and Unreturnable Migrants under French Law
Specific situations
excluded
from
protection
Relevant provision of the
Criminal
Code
Aliens benefitting from
protection
131-30
No
protection
Table 3: Protection against ITFa
Same as RP2.1.
Same as RP2.2.
Same as RP2.3.
5. Has obtained a “private and family life” residence permit as resident in France and health
situation requires medical supervision, if the
absence of such supervision could have exceptionally serious consequences and he could
not enjoy appropriate medical care in the
State of return.
Situation 3 if the expulsion measure was
ordered following offences committed towards husband or spouse, his children or
children for whom he has parental authority.
Same as RP1.
Same as RP1.2.
More than 15 years legal residence, except
where entirely on the basis of a student residence permit.
Same as RP1.4.
(Continued)
131-30-2
RPII
131-30-1
RPI
Relative
protection
Refugee Survey Quarterly
47
Offence
qualified as
a crime by the
Criminal Code
Offence qualified as a
“délit”b by the
Criminal Code
RPI
Relative
protection
Serious offence specifically designated by the
Criminal Code.
RPII
b
Table information compiled by the author on the basis of the Code pénal (author’s translation).
Depending on the penalty they are punished by, French offences are classified in three categories: “contraventions” (punished by a fine and in exceptional cases by restrictions to liberty), “délits”
(punished by a fine and a prison term of up to 10 years), and “crimes” (punished by a fine and a prison term up to 30 years).
a
Degree of seriousness of
the offence
that is
required for
the judge to
exclude from
protection
No
protection
Table 3: (continued)
48
Chloé Peyronnet j Undesirable and Unreturnable Migrants under French Law
Refugee Survey Quarterly
49
One can object that the complexity of this system is the result of the French legislator’s commitment to striking a balance between the requirement of protecting public
policy and the abovementioned ECtHR and CJEU rulings. Indeed, behind the different types of relative protection, we can see the shadow of Articles 2, 3, and 8 of the
ECHR. In the same way, the influence of the aforementioned Rutili ruling is palpable
when it comes to PR3. However, nothing can explain the absence of formal hierarchy
between the degrees of threat required to overcome relative protection against expulsion, nor the use of similar yet different words that prevent any foreseeability in
this respect. Such vagueness hardly seems consistent with the principle of legal
certainty.
3.1.2. Absolute protection
Only children under the age of 18 years enjoy absolute protection against expulsion.
There is no absolute protection against ITF but as children under the age of 13 years
are not criminally liable, they enjoy de facto absolute protection against such a penalty. However, this absolute protection can prove to be more theoretical than actual.
Indeed, the Popov v. France ruling41 criticised the French practice of using the right
to family life as a ground for deporting children whose parents are subject to deportation, without the children themselves being subject to an expulsion measure. In
such situations, the fact that parents are in an irregular situation or are considered a
threat to public policy impacts their children’s residence in the country.42
There are also situations in which the French authorities deport unaccompanied
minors, or minors whose parents are already on French territory but do not meet
the criteria for family reunification. Because of the lack of data, it is not possible to
assess if the reason for these removals relates to the determination that these minors
pose a threat to public policy. In any event, a practice employed by the authorities is
to administer any adult subject to deportation with parental authority, so that the unaccompanied minor is no longer unaccompanied or the minor whose actual parents
are not subject to removal is legally linked to someone who is.43 This latter practice,
which was condemned by the ECtHR in Rahimi v. Greece,44 brings us back to the
situation castigated in Popov. Disguised deportation of minors is particularly prevalent in Mayotte, a French overseas department of the Southeast African coast, which
is a huge hub for migration from the Comoros. For instance, in a 2014 case regarding
an 8-year-old child whose parents wanted to bring the child from the Comores to
Mayotte, the Mayotte Administrative Tribunal found that there had been a de facto
delegation of parental authority to the man who accompanied the child on the boat
so that he could be deported with him.45 Children are also deported because of the
method the authorities use to determine the age of an individual: they rely on a bone
41 ECtHR, Popov v. France, Judgment, Appl. Nos. 39472/07 and 39474/07, 19 Jan. 2012.
42 Council of State, Appl. No. 282275, 12 Jun. 2006.
43 C. Escuillié, “Un encadrement cosmétique du renvoi des mineurs étrangers arbitrairement rattachés a des
adultes accompagnants”, La Revue des Droits de l’Homme, 27 Feb. 2015, available at: https://revdh.revues.
org/1067 (last visited 12 Dec. 2016).
44 ECtHR, Rahimi v. Greece, Judgment, Appl. No. 8687/08, 5 Jul. 2011.
45 Mayotte Administrative Tribunal, Appl. No. 1400699, 19 Dec. 2014.
50
Chloé Peyronnet j Undesirable and Unreturnable Migrants under French Law
test that is highly controversial, and is criticised both by NGOs46 and by the medical
body47 for its unreliability leading to numerous deportations of minors.
3.1.3. Quasi-absolute protection
The final form of protection that will be considered is “quasi-absolute” protection,
and relates to protection against risk of persecution in the home State as provided by
Article 33 paragraph 1 of the 1951 Refugee Convention (principle of non-refoulement) and Article 3 of the ECtHR. It is not “absolute” because of two exclusions:
Article 1 paragraph 2 of the Refugee Convention excludes “a refugee to whom there
are reasonable grounds for regarding as a danger to the security of the country in
which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country” from the scope of
paragraph 1; Article 1F excludes “any person with respect to whom there are serious
reasons for considering that” he committed certain serious crimes.48 Both also exist
in the CESEDA.49 In practice, France has a narrow approach to the “persecution”
criteria for obtaining asylum or other forms of international protection. Early in
2015, the ECtHR doubly condemned France for considering that Sudanese nationals
who were part of non-Arabic ethnic groups did not face a risk of persecution if sent
back to the Darfur region.50 Nevertheless, the ECtHR still appears to be overwhelmed with applications from Sudanese nationals asking for suspension of deportation from France. This has been particularly true in the context of the dramatic
situation in Calais: local authorities were overwhelmed and left to their own devices
by the State, and appeared to be employing the tactic of ordering expulsion measures
that they knew were inconsistent with the ECHR in order to be able to move some
people in detention and clear what the media refer to as “the Jungle”.51 In Calais, the
State finally took action in October 2016: it succeeded in dismantling the giant camp
by sending all its inhabitants in reception and orientation centres (CAO)52 where
they are supposed “to evaluate their situation and reconsider their migratory project”
46 V. Fletz, Age Assessment for Unaccompanied Minors. When European Countries Deny Children their
Childhood, Doctors of the World, 28 Aug. 2015, available at: https://mdmeuroblog.files.wordpress.com/
2014/01/age-determination-def.pdf (last visited 12 Dec. 2016).
47 Académie nationale de médecine, “Rapport sur la fiabilité des examens médicaux visant a déterminer l’^age
a des fins judiciaires et la possiblité d’amélioration en la matière pour les mineurs étrangers isolés”,
Bulletin de l’Académie Nationale de Médecine, 191(1), 2007, 139 142, available at: http://www.aca
demie-medecine.fr/publication100035629/ (last visited 12 Dec. 2016).
48 If “he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the
international instruments drawn up to make provision in respect of such crimes”, “he has committed a
serious nonpolitical crime outside the country of refuge prior to his admission to that country as a refugee”, or if “he has been guilty of acts contrary to the purposes and principles of the United Nations”.
49 Arts. L711-3, L711-6, and L712-2 of CESEDA.
50 ECtHR, A. A. v. France, Judgment, Appl. No. 18039/11, 15 Jan. 2015; ECtHR, A. F. v. France, Judgment,
Appl. No. 80086/13, 15 Jan. 2015.
51 M. Baumard, “Expulsions des migrants: les associations dénoncent une politique du ‘chiffre’”, Le Monde,
30 Jun. 2015, available at: http://www.lemonde.fr/immigration-et-diversite/article/2015/06/30/expul
sions-des-migrants-les-associations-denoncent-une-politique-du-chiffre_4664530_1654200.html (last visited 12 Dec. 2016).
52 In French Centres d’Accueil et d’Orientation.
Refugee Survey Quarterly
51
before being guided towards “appropriate housing”.53 However, in lots of cases, the
“appropriate housing” is a detention centre: the dismantlement of Calais’ camp did
not lead to any regularisation. In the absence of any political will to welcome more
refugees,54 there is every reason to believe that France will go on with its narrow approach to the persecution criteria. In this respect, the European Commission’s proposal for a regulation “establishing an EU common list of safe countries” will
certainly not help.55
For the purpose of Directive 2013/32/EU, which provides a common criterion in
the examination of protection claims,56 every European State has a list of countries
that are considered to be “safe” for the purpose of return. However, the countries
included in such lists differ from State to State, raising doubts about their validity.57
Asylum applicants who are nationals of countries on such lists are subject to accelerated procedures that reduce their chance of being granted asylum.58 Even unstable
countries such as Kosovo are considered safe under French law.59 The proposed
regulation aims to harmonise these national lists. However, it reduces the persecution criterion to its narrowest common denominator by considering Albania, Bosnia
and Herzegovina, the former Yugoslav Republic of Macedonia, Kosovo,
Montenegro, Serbia, and Turkey as safe countries.60 At the end of the day, it is now
particularly difficult to be recognised as a beneficiary of quasi-absolute protection,
and it is impossible for migrants who are deemed a serious threat to public policy.
3.2. Practical obstacles
There are four practical requirements that must be met for a person to be deported
to another State: first, his identity must be known; secondly, the State of return must
53 http://etat-a-calais.fr/ (last visited 12 Dec. 2016).
54 François Hollande publicly praised himself for the low number of asylum-seekers in France. See
President of the Republic, Déclaration au CAO de Tours, 25 Sep. 2016, available at: http://www.elysee.fr/
declarations/article/declaration-au-cao-de-tours/ (last visited 12 Dec. 2016).
55 European Commission, Proposal for a regulation of the European Parliament and of the Council establishing
an EU common list of safe countries of origin for the purposes of Directive 2013/32/EU of the European
Parliament and of the Council on common procedures for granting and withdrawing international protection,
and amending Directive 2013/32/EU, COM (2015) 452 final, 9 Nov. 2015.
56 Directive 2013/32/EU of the European Parliament and of the Council of 26 Jun. 2013 on common procedures for granting and withdrawing international protection (recast), OJ L 180/60, 29 Jun. 2013.
57 See European Commission, An EU ‘Safe Countries of Origin’ List, factsheet, 9 Sep. 2015, available at: http://ec.
europa.eu/dgs/home-affairs/e-library/multimedia/publications/index_en.htm#0801262490bfbb44/c_ (last visited 12 Dec. 2016).
58 Art. L723-2 of the CESEDA. European Commission, An EU ‘Safe Countries of Origin’ List: “Applications
from nationals of countries on the Safe List will be fast-tracked, allowing for faster returns if the individual
assessments of the applications confirm no right of asylum.” See also Communication from the
Commission to the European Parliament, the European Council, and the Council, Second Report on the
Progress Made in the Implementation of the EU-Turkey Statement, COM (2016) 349 final, 15 Jun. 2016, 7,
where the will to increase the use of the “safe third country concept” in order to “deal with the individual
assessment of asylum applications and appeals and in the most timely manner” is claimed by the
Commission.
59 Forum Réfugiés-Cosi, “Liste des pays d’origine s^ur: le retour contestable du Kosovo”, Press Release, 12
Oct. 2015, available at: http://www.forumrefugies.org/s-informer/communiques/liste-des-pays-d-originesur-le-retour-contestable-du-kosovo (last visited 12 Dec. 2016).
60 Annex to the Proposal for a Regulation of the European Parliament and of the Council Establishing an EU
Common List of Safe Countries of Origin.
52
Chloé Peyronnet j Undesirable and Unreturnable Migrants under French Law
issue valid travel documents; thirdly, potential transit States must issue a laissezpasser; fourthly, transportation must be available.61
The first condition is not an issue when the migratory status of the undesirable
migrant is regular. However, it poses problems regarding undesirable migrants who
are both considered a threat to public policy and are in an irregular situation.62
Indeed, in such cases, they often do not possess identity documents and if they do,
there is always a suspicion that they are not reliable.63 French law addresses this issue
by using deterrence and punishment, technological resources, and interstate cooperation. Regarding deterrence and punishment, an undesirable migrant who gives the
authorities false information regarding his identity can be sentenced to a fine of
e3,750 and a 1-year prison term.64 Concerning technological resources and interstate
cooperation, the authorities rely on European tools: they share information across
European databases such as Eurodac, Schengen Information System II (SIS II), and
Visa Information System (VIS), and cooperation through Eurojust, Europol, and
Cepol. However, for these tools to be useful, adequate material must be available,
which is not always the case. In this respect, EU Member States such as Greece often
complain that they do not have the appropriate technology (e.g. regarding
fingerprints).65
The second and the third conditions are often problematic because States usually
do not agree to receive persons who do not have their nationality or never lived on
their territory, especially if they are deemed a threat to public policy in another
State.66 Again, French law relies on deterrence and punishment: an undesirable migrant who refuses to produce valid travel documents that he possesses, or to share
relevant information in this respect can be sentenced to the same penalty as those
who give false information about their identity. However, this is useless regarding undesirable migrants who do not possess such documents, which is often the case
when the authorities want to deport them to a State of which they are not nationals
or on the territory of which they almost never have been.
Finally, the fourth condition happened to be a problem for some European States
confronted with a great number of removals from their territory. Recently, the background of the Celaj ruling67 emphasised that Italian authorities often face a lack of
planes when it comes to the enforcement of deportation measures. Though no information is available about such a situation regarding France, it is probable that it can
61 M. Vanderbruggen , J. Phelps, N. Sebtaoui, A. Kovats & K. Pollet, Point of No Return. The Futile Detention
of Unreturnable Migrants, A Face to the Story Project, Brussels, Flemish Refugee Action, Jan. 2014, available at: http://pointofnoreturn.eu/wp-content/uploads/2014/01/PONR_report.pdf (last visited 12 Dec.
2016).
62 The European Commission has underpinned this kind of difficulties. European Commission,
Communication from the Commission to the Council and the European Parliament on EU Return Policy,
COM (2014) 199 final, 28 Mar. 2014.
63 Ibid.
64 Art. L624-1 of the CESEDA.
65 N. Gros-Verheyde, “Crise des réfugiés. Arr^etez de taper sur la Grèce, aidez-nous!”, Bruxelles2, 26 Jan.
2016, available at: http://www.bruxelles2.eu/2016/01/26/crise-des-refugies-arretez-de-taper-sur-la-greceaidez-nous/ (last visited 12 Dec. 2016).
66 See for instance CJEU, Bashir Mohamed Ali Mahdi, Judgment, Case C146/14 PPU, 5 Jun. 2014.
67 CJEU, Skerdjan Celaj, Judgment, Case C-290/14, 1 Oct 2015.
Refugee Survey Quarterly
53
happen as the deportation of non-nationals is governed by an exigent policy of
targets.68
4. MANAGEMENT OF UNRETURNABILITY
The French legal framework does not offer any solutions to manage the unreturnability of undesirable migrants. Indeed, when an undesirable migrant proves to be
unreturnable, the authorities have a choice between two possibilities: order detention
or home custody, which leads to a circular loop of unlimited restrictions to liberty, or
leave him in a legal limbo where he enjoys precarious liberty and lowered rights.
As shown in the tables below, some measures are common to all unreturnable migrants, while others are specific to the narrower category of migrants that are both
unreturnable and undesirable. The legal frameworks for detention, home custody,
and sanctions are set out in Tables 4, 5, and 6, respectively.
4.1. The choice of legal uncertainty: de facto unlimited restrictions to liberty
Home custody is a measure that obliges a person to stay in a place determined by
the authorities at their own discretion. It encompasses additional obligations such as
reporting routinely to the police (under judicial escort for those who are deemed a
particularly serious threat to public policy) or surrendering travel and identity documents to the authorities.69 This is the measure most unreturnable migrants experience, be they undesirable migrants or not. Indeed, when a non-national appears to
be unreturnable, he will either be detained or subjected to home custody, depending
on whether or not he can give actual assurances he will not avoid deportation. If detention is ordered, it cannot last forever: a maximum length of 6 months applies.70
However, if the non-national is still unreturnable at that time, he will not necessarily
be at liberty. Home custody can be ordered to replace detention when its maximum
length has been reached.71 At that stage, the situation of undesirable migrants differs
from those of other migrants: when it is ordered because of unreturnability, home
custody cannot last for more than 1 year for “simple” unreturnable migrants, while
there is no maximum length for undesirable and unreturnable migrants.72
Even if detention is more constraining than home custody, it comes with a double
guarantee that it will end at some point: the requirement of the reasonable prospect
of removal as a condition of detention itself and the maximum length prescribed by
law. As the first depends on a discretionary assessment by the administrative authorities,73 the second is far more certain. For undesirable and unreturnable migrants
who are subject to home custody, only the first criteria applies, so that recovering
their liberty depends entirely on a subjective assessment of an also subjective criterion of removability that cannot be contested before a court. Ultimately, such
68 C. Mouhanna, “Politique du chiffre et police des étrangers”, Plein Droit, 89, Oct. 2009, avalaible at:
http://www.gisti.org/spip.php?article1740 (last visited 12 Dec. 2016).
69 Art. L561-1 of the CESEDA.
70 See Table 4.
71 See Table 5.
72 Ibid.
73 Cass. civ. 1ère, No. 13-23940, 25 Jun. 2014, available at: https://www.legifrance.gouv.fr/affichJuriJudi.do?
idTexte¼JURITEXT000029155223 (last visited 12 Dec. 2016).
Alien failed to respect a
deportation measure
and does not give actual assurances that he
will not avoid future
deportation.d Or Alien
who has been sentenced to an ITF as a
primary penalty.
Legal criteria to order
detention
Alien who gives actual
assurances that he
will not avoid deportation. If he
gives such assurance at this stage,
the JLD may (but is
not obliged to)
order the replacement of detention
with home custody.
Absolute priority Or Alien
poses particularly serious
threat to public policy Or
Not possible to enforce
the deportation measure
(whether due to the alien’s behaviour or to practical obstacles to removal)
Maximum 6 months
(1 month, renewable each
month with a limit of
6 months in total)
Alien who is subject to an
expulsion measure or an
ITF penalty due to links
with terrorist activities,
and for whom there is still
a reasonable prospect of
removal, and where home
custody would not allow
adequate monitoring of
his behaviour.
JLD at the Paris Regional
Courtc
JLD
Maximum 15 days
L552-7
Renewal of detention beyond
45 days
L552-7
Renewal of detention beyond
30 days
c
b
Table information compiled by the author on the basis of CESEDA (author’s translation).
Translated by the author from juge des libertés et de la détention. JLD is a judicial judge.
Translated by the author from JLD près le Tribunal de grande instance de Paris.
d
If he has already been detained for the enforcement of the same deportation measure, detention cannot be ordered before 7 days have passed since the end of the previous detention measure, except if
it has been ordered after he violated a measure restricting liberty.
a
Maximum 48 hours
Liberties and detention judge (JLD)b
(decides within
24 hours)
28 days
Administrative authority
Length of the
measure
L552-1 to L552-6
Maintenance of detention or replacement
with home custody
L551-1 and L555-1
Detention ordered without
judicial oversight
Relevant provisions of
the CESEDA
Author of the detention measure
Table 4: Detentiona
54
Chloé Peyronnet j Undesirable and Unreturnable Migrants under French Law
Administrative authority
Administrative authority – if the
measure is ordered as a first
choice JLDb – if the measure is
ordered after a detention measure has been judged to be
disproportionate
Maximum 90 days (maximum 45
days initially, renewable for a
maximum of 45 days on one
occasion)
Alien who cannot leave the territory immediately but for whom
there is still a reasonable prospect of removal
No
c
b
Home custody ordered because an expulsion measure
or an ITF penalty cannot be
enforced
No
Aliens who enjoy RP1,c
R2.4, or RPII.5d
Unlimited (until there is
Maximum 1 year (maximum
a reasonable prospect
6 months initially, renewof removal)
able for a maximum of 6
months on one occasion)
Alien who demonstrates that he cannot leave the French territory
as he cannot go to his State of origin nor to any other State
L561-1
Home custody ordered because
a deportation measure related
to the alien’s migratory status
cannot be enforced
L561-2 and L552-4
Home custody ordered to ensure the
enforcement of a deportation measure
Table information compiled by the author on the basis of CESEDA (author’s translation).
Translated by the author from juge des libertés et de la détention. JLD is a judicial judge.
For them, abrogation of work authorization if he violates his obligations or does anything that is detrimental to public policy (Article L523-4 of the CESEDA).
d
Article L523-5 of the CESEDA.
a
Work authorisation
Legal criteria to order
home custody
Length of the measure
Relevant provision of the
CESEDA
Author of the deportation measure
Table 5: Home custodya
Refugee Survey Quarterly
55
56
Chloé Peyronnet j Undesirable and Unreturnable Migrants under French Law
Table 6: Sanctionsa
Failure to respect a
home custody measure
that was ordered to ensure the enforcement of
a deportation measure
Relevant provision
of the CESEDA
Administrative
measure or
penalty
Failure to respect a
home custody measure
that was ordered because a deportation
measure could not be
enforced
Presence on the
French territory
without legitimate cause after
the end of a detention or home
custody measure
L561-2
L624-4
L624-1
Detention
3-year prison term if
the alien fails to go
to the ordered place
within the ordered
deadline or left his
place of residence
without authorisation 1-year prison
term if the alien
failed to respect an
obligation to report
routinely to the
police
1-year prison
term and a
e3,750 fine
a
Table information compiled by the author on the basis of CESEDA (author’s translation).
individuals can be subject to de facto unlimited restrictions on liberty. The ECtHR
tolerates this situation as home custody is not seen as a “deprivation of liberty”, but
rather a “restriction to liberty”. As such, home custody is excluded from the scope of
Article 5 ECHR and hence of its guarantees against arbitrariness.74
Although there is no relevant statistical data in this respect, some cases regarding
unreturnability on account of quasi-absolute protection have been covered by the
media following ECtHR interim measures. Kamel Daoudi is an Algerian national
who was convicted of a terrorist crime in 2005. He cannot be deported because the
ECtHR judged there is a risk he would face a disproportionate interference with his
rights under Article 3 of the ECHR if returned to Algeria.75 In 2015, he was subjected to home custody for 8 years and was successively assigned to reside in four different towns. At each place of residence, he could only go to specified areas and he
can be assigned to another location anytime. Though he has already completed his
prison term, he still does not know if he will ever recover his full liberty. It is impossible for him to have normal interactions with the inhabitants of the towns where he
is assigned, as many of them believe they are paying for a terrorist’s accommodation.
74 ECtHR, Guzzardi v. Italy, Judgment, Appl. No. 7367/76, 6 Nov. 1980, paras. 92–93; ECtHR, Enhorn v.
Sweden, Judgment, Appl. No. 56529/00, 25 Jan. 2005, para. 36.
75 ECtHR, Daoudi v. France, Judgment, Appl. No. 19576/08, 3 Dec. 2009.
Refugee Survey Quarterly
57
He considers this measure to be in effect an unlimited “continuation of jail”.76
Indeed, prison and home custody can be intertwined. As mentioned above, nonnationals who are undesirable migrants because they were sentenced to a prison
term and an ITF must complete their prison term before the deportation process
begins.77 They can also end up in prison if they fail to respect one of the obligations
that go with home custody: such a failure is sentenced by a prison term of between
1 and 3 years.78
As they represent a use-value,79 certain undesirable and unreturnable migrants are
allowed to work while subject to home custody. This is the case for those who are
unreturnable because they enjoy RP1, RP2.4, or RPII.5.80 In that sense, the usefulness one has for an economic system can prove to be closely related to the rights he
will be granted.81
Of course, not all undesirable and unreturnable migrants remain under home custody forever. However, when home custody ends, they are released into a legal limbo
that can prove to be even more vague/precarious.
4.2. The choice of legal limbo: precarious liberty and lowered rights
An undesirable migrant that proves to be unreturnable is either detained or subject
to home custody, the latter often being used as a replacement for detention when its
maximum length has been reached. However, in such cases, undesirable migrants can
also be released from detention without any follow-up measures imposed. The end
of home custody because there is no longer a reasonable prospect of removal is also
possible, even if it depends on a discretionary assessment by the authorities. If no follow up measures are imposed, undesirable migrants are not granted a residence permit; they may be free on French territory, but they are still subject to a deportation
measure that has not been enforced, so that their migratory status is necessarily irregular (even for those who were in a regular situation before being considered a
threat to public policy). For this reason, they do not have an administrative identity
or firm legal status, they can neither work nor receive social security, and in most
cases they do not know when they might be sent to detention or placed under home
custody again. Moreover, the sole fact of staying on French soil without a legitimate
cause is an offence that attracts a prison term and a fine.82 The concept of “legitimate
cause” is vague: in this respect, the only certitude is that the lack of identity documents or any other reason that can be attributed to the person’s behaviour cannot be
considered a legitimate cause.
76 Translated by the author. C. Polloni, “Une journée avec un ex-‘lieutenant de Ben Laden’ coincé dans le
Tarn”, L’Obs, 29 Nov. 2015, available at: http://rue89.nouvelobs.com/2013/05/29/journee-ex-lieuten
ant-ben-laden-coince-tarn-242757 (last visited 12 Dec. 2016).
77 The aforementioned “double penalty”.
78 See Table 6.
79 I use the Marxist concept of use-value to depict the situation in which the granting of rights is determined
by one’s usefulness to an economic system.
80 See Table 2.
81 S.D. Houston & O. Lawrence-Weilmann, “The Model Migrants and Multiculturalism: Analyzing
Neoliberal Logics in US Sanctuary Legislation”, in H. Bauder & C. Matheis (eds.), Migration Policy and
Practices, New York, Palgrave Macmillan, 2016, 101 126.
82 See Table 6.
58
Chloé Peyronnet j Undesirable and Unreturnable Migrants under French Law
If we take the hypothetical case of a non-national who is sentenced to a prison
term and to an ITF penalty because he committed an offence, he could complete his
prison term, be detained because the ITF could not be enforced, subject to home
custody because he would still be unreturnable, then released, then fined and sentenced to a prison term because he stayed on French soil despite the ITF penalty,
and again sentenced to a new ITF penalty or subject to an expulsion measure because he committed an offence that makes him a threat to public policy. At that
stage, a new procedure begins, so that the whole process can repeat indefinitely.
Moreover, the new version of Article L551-1 of the CESEDA appears to allow the
authorities to re-detain a person who has been released without even initiating a new
procedure.83 It is not clear whether this is possible for those who have been released
before the maximum length of detention has been reached. However, this possibility
had already been84 (and is still)85 proposed by the Contact Committee “Return
Directive” (CCRD),86 which faces the pressure of a very tense political context in
Member States.87 Although the CJEU judged that detention must end when a reasonable prospect of removal no longer exists88 and, in any event, cannot exceed the maximum length of detention prescribed by law,89 the vagueness of the aforementioned
provisions is an open door to the harsher interpretation promoted by the CCRD.
5 . C O N C L U S I O N: E X P U L S I O N F R O M T H E R U L E OF L A W
Undesirable and unreturnable migrants appear to be stuck between legal uncertainty
and legal limbo where they cannot assert rights that are normally granted to any individual against arbitrariness. They are “expelled” in the sense sociologist Saskia Sassen
uses this word: she does not refer to the fact of being subject to a deportation measure, but rather to the exclusion of “useless” people from society in our case from
the rule of law be they nationals or non-nationals.90
In Table 7 below, I compare the legal framework that applies to undesirable
and unreturnable migrants to the current legal framework that applies to
83 See Table 4.
84 Contact Committee “Return Directive”, Brainstorming on Best Practices in Relation to “Non-Removable
Returnees”, MIGRAPOL CC Return Dir 50, 21 Mar. 2013; M.-L. Basilien-Gainche, “Immigration
Detention under the Return Directive: The CJEU Shadowed Lights”, European Journal for Migration and
Law, 17, 2015, 107 129.
85 Contact Committee “Return Directive”, Draft Return Handbook, v. 2, MIGRAPOL CC Return Dir 60,
24 Apr. 2015, available at: http://webcache.googleusercontent.com/search?q¼cache:GqDVKw2LJUgJ
:ec.europa.eu/transparency/regexpert/index.cfm%3Fdo%3DgroupDetail.groupDetailDoc%26id%3D
19880%26no%3D2þ&cd¼1&hl¼fr&ct¼clnk&gl¼fr&client¼firefox-b-ab (last visited 12 Dec. 2016).
86 The Contact Committee “Return Directive” is a committee of the EU that gathers agents of the
European Commission and Member States representatives in order to monitor the way the latter implement the Return Directive.
87 Ibid.
88 CJEU, Said Shamilovich Kadzoev, Judgment, Grand Chamber, Case C-357/09 PPU, 30 Nov. 2009,
para. 67.
89 CJEU, Hassen El Dridi, Judgment, Case C-61/11 PPU, 28 Apr. 2011, para. 40.
90 S. Sassen, Expulsions: Brutality and Complexity in the Global Economy, Cambridge, The Belknap Press of
Harvard University Press, 2014. For a short summary of the concept she develops, see S. Sassen,
“Expelled: Humans in Capitalism’s Deepening Crisis”, Journal for World-Systems Research, 28(2), 2013,
198 201.
Refugee Survey Quarterly
59
everyone including French nationals under the state of emergency. It emphasises
both the “exceptionality” of the legal framework that applies to undesirable and unreturnable migrants, and the fact that this legal framework is being extended to anyone
deemed a threat to public policy through the constant extension of the state of
emergency.
Table 7: Home custody in France: compared legal frameworks
Under usual law
Under state of emergency
French nationals
Order by a judicial court as a
criminal sentence and
limited.
Undesirable and
unreturnable
migrants
Ordered by administrative
authorities on the ground
that an expulsion measure or
an ITF cannot be enforced
and unlimited.b
Ordered by administrative authorities on the ground that the person poses a threat to public
policy and unlimited.a
Ordered by administrative authorities on the ground that an expulsion measure or an ITF
cannot be enforcedb or on the
ground that the person poses a
threat to public policy and
unlimited.c
a
Article 6 of Law No. 55-385 of 3 Apr. 1955 read in the light of DC No. 2015-527 QPC, 22 Dec. 2015.
Article L561-1 of the CESEDA.
c
Article 6 of Law No. 55-385 of 3 Apr. 1955 read in the light of DC No. 2015-527 QPC, 22 Dec. 2015.
b
In other words, these two legal frameworks are converging, not as much because of a
strengthening of the provisions regarding undesirable and unreturnable migrants, but
because of their extension to new situations under the state of emergency. In addition to being constantly extended, the latter is progressively inserted in the usual
legal framework. This is the case through the badly named91 “Law strengthening the
fight against organized crime, terrorism and their funding, and improving the efficiency and the fair hearing rights”92 that should enter into force in the last months of
2016.93 Regarding home custody, it will amend Article L225-7 of the Homeland
Security Code94 to provide the administrative authorities with the possibility of
imposing such a measure for 1 month on anyone who has been on the theatre of terrorist operations or expressed his will to do so. It will also make the failure to comply
with it a criminal offence.95
91 Inter alia, it will allow the administrative authorities to detain anyone for 4 hours following an identity
check without respecting the right to a fair hearing, which make the name of the law particularly
inappropriate.
92 Translated by the author. Law No. 2016-731 of 3 Jun. 2016.
93 See the forward schedule on the Government’s website lastly updated on 19 Jul. 2016, available at: https://
www.legifrance.gouv.fr/affichLoiPubliee.do;jsessionid¼1CA8118365E1F7C4EB89BFCFB3B007B7.tpdi
la22v_2?idDocument¼JORFDOLE000031974277&type¼echeancier&typeLoi¼&legislature¼14 (last visited 16 Aug. 2016).
94 Translated by the author from Code de la sécurité intérieure.
95 Report of the governmental meeting of 3 Feb. 2016, available at: http://www.gouvernement.fr/conseil-desministres/2016-02-03/lutte-contre-le-crime-organise-le-terrorisme-et-leur-finance (last visited 12 Dec. 2016).
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Chloé Peyronnet j Undesirable and Unreturnable Migrants under French Law
The replacement of judicial decisions and the protective rights that comes with it
by administrative discretion, the growing scope of vague concepts such as “threat to
public policy”, and the perpetuation of a state of exception that puts individual in a
legal zone where exceptionality is the general rule shows a shift from the exclusion of
aliens to the exclusion of a broader category of individuals.
One may ask whether the aim of such an evolution is to fight against an increasing
terrorist threat96 or to improve the State’s control over its population at a moment
when its legitimacy is being called into question inter alia because of unemployment and successive cuts to the social protection system that are presented as being
imposed by “Brussels”.97 Indeed, if States have the “undeniable sovereign right to
control aliens’ entry into and residence in their territory”, the main preoccupation of
the French State seems to be not so much about controlling the crossing of physical
borders, but about strengthening a transnational and intra-societal border, the exact
nature of which is still to be determined.98
96 In this respect, the fact that government officials tend to brand more and more events as terrorist attacks
to justify extensions of the state of emergency has the negative effect of exacerbating the general feeling
that the State cannot do anything against terrorism.
97 H. Verschuaren, “Free Movement of EU Citizens Including for the Poor?”, Maastricht Journal of European
and Comparative Law, 22(1), 2015, 10 34.
98 See inter alia Z. Bauman, Globalization: The Human Consequences, New York, Columbia University Press,
1998; J. Peck & A. Tickell, “Neoliberalizing Space”, Antipode, 34, 2002, 380 404; J. Levy & M. Lussault
(eds.), Dictionnaire de la géographie et de l’espace des sociétés, Paris, Belin, 2003; P. Cuttita, “Le mondefrontière. Le contrôle de l’immigration dans l’espace globalise”, Cultures & Conflits, 68, 2007, 61 84;
D. Bigo, “Du panoptisme au Ban-optisme. Les micros logiques du contrôle dans la mondialisation”, in
P.-A. Chardel & G. Rockhill (eds.), Technologies de contrôle dans la mondialisation: enjeux politiques,
ditions Kimé, 2009, 59 80.
éthiques et esthétiques, Paris, E