France: Highest courts clarify Dublin detention

The legality of the use of administrative detention for the purpose of carrying out transfers under Article 28 of the Dublin III Regulation has recently been clarified by the country’s two highest courts.

Court of Cassation, Decision of 27 September 2017: In a case concerning an asylum seeker facing a Dublin transfer to Italy and detained in the centre of Mesnil-Amelot, the Court of Cassation found that the absence of a provision defining the “risk of absconding” based on objective criteria in French legislation precluded the applicability of detention, thereby reflecting the Al Chodor ruling delivered by the Court of Justice of the European Union (CJEU) earlier this year. On that ground, the Court quashed an order of the Court of Appeal of Paris prolonging the individual’s detention.

While the risk of absconding has not been defined in law, a Ministry of Interior instruction of 19 July 2016 to French Prefectures refers to the notion of “risk of absconding” in the context of Dublin transfer procedures and allows for the possibility to place persons concerned in administrative detention. The instruction sets out two criteria as indicative of such a risk: (a) the individual has left the place where he or she is required to reside; (b) the individual has not appeared following several summons (convocations) to an interview or has not respected reporting obligations in the context of house arrest (assignation à résidence).

Council of State, Opinion of 19 July 2017: In an opinion requested by the Administrative Court of Appeal of Douai, Council of State clarified the point in time when detention may be ordered with a view to carrying out a Dublin transfer. It held that, in light of the provisions of the Dublin Regulation, an administrative authority must first obtain the acceptance of the requested Member State before issuing a transfer decision to that country. Therefore, it is only once the requested Member State accepts the take charge or take back request that a transfer decision can be taken and a fortiori communicated to the applicant. Consequently, the detention of an applicant due to a risk of absconding before a request has been accepted by the requested Member State must be considered unlawful.

The opinion could affect the practice of Prefectures such as Vincennes, which detain asylum seekers during the procedure of determination of the Member State responsible for their application. It is also relevant to house arrest, which following the 2016 immigration law reform may be imposed during the determination process and takes place in practice in areas including Marseille and Paris.

However, the government’s recent plans for reform seem to take the opposite direction from the Council of State opinion. An immigration bill seen by media, yet to be submitted to the Council of State, would permit authorities to impose administrative detention as soon as a Dublin request is submitted to another country. In its current form, the bill also proposes a doubling of the maximum period of detention, from 45 to 90 days.

According to Eurostat, last year, France issued a total 25,368 outgoing requests under the Dublin Regulation. Only 1,293 transfers were implemented.


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