A specific border procedure to request an admission into the country on asylum grounds is provided by French legislation,1 for persons arriving on French territory through airports or harbours. This procedure is separate from the asylum procedure on French territory.2 Nobody is exempt from the application of this procedure.
Unaccompanied children are also subject to these provisions,3 but in a more restrictive way than adults since the adoption of the 2015 asylum law. According to the law, an unaccompanied minor can be held in a waiting zone only under exceptional circumstances listed in the law:4
(1) The unaccompanied minor originates from a safe country of origin;
(2) The unaccompanied minor introduces a subsequent application deemed inadmissible;
(3) The asylum claim is based on falsified identity or travel documents; or
(4) The presence of the unaccompanied minor in France constitutes a serious threat to public order, public safety or state security.
This border procedure is framed by Article R.213-2 Ceseda:
“When a foreign national who has arrived at the border applies for asylum, they are immediately informed, in a language they can reasonably be considered to understand, of the asylum application procedure, their rights and obligations over the course of this procedure, the potential consequences of any failure to meet these obligations or any refusal to cooperate with the authorities, and the measures available to help them present their request.”
Article L.221-4 Ceseda also provides that:
“[F]oreign nationals held in waiting zones are informed, as soon as possible, that they may request the assistance of an interpreter and/or a doctor, talk to a counsel or any other person of their choice, and leave the waiting zone at any point for any destination outside of France. They are also informed of their rights pertaining to their asylum claim. This information is communicated in a language the person understands.”
The competent administrative authority for delimiting waiting zones is the Prefect of the département and in Paris, the Chief of Police (“Préfet de Police”). The decision to hold a foreign national in the waiting zone, which must be justified in writing, is taken by the Head of the National Police service or the Customs and Border Police, or by a civil servant designated by them. There are 13 waiting zones in mainland France. Most of the activities take place at the Roissy Charles de Gaulle (CDG) airport (79.2% of the claims).5
Moreover, waiting zones can be extended to within 10km from a border crossing point, when it is found that a group of at least 10 foreigners just crossed the border. The group of 10 can have been identified at the same location or various locations within the 10km area. This exceptional extended waiting zone can be maintained for a maximum of 26 days.6 This possibility has not been implemented until now.
Waiting zones are located between the arrival and departure points and passport control. The law provides that they may include, within or close to the station, port or airport, or next to an arrival area, one or several places for accommodation, offering hotel-type facilities to the foreign nationals concerned (see section on Place of Detention).
There is no strict deadline to apply for asylum when applicants are waiting for their admission at the border, the person may apply for asylum at any time during the time he or she is held in the waiting zone, meaning during 4 days. It is imperative that the asylum application be taken into account and the Border Police has to make a statement detailing the request for admission on the basis of an asylum claim. The person is held in the waiting zone for an initial duration of 4 calendar days to give the authorities some time to check that:
France is the responsible State to examine the claim;
The asylum request is not manifestly unfounded; and
The asylum claim is not inadmissible.7
The asylum law defines “manifestly unfounded” claims: “A claim is manifestly unfounded when considering the foreign national’s statements and documentation it is manifestly irrelevant as far as asylum criterion or manifestly lacking credibility regarding the risk of persecutions or severe violations.”
The Judge of Freedoms and Detention (JLD) is competent to rule on the extension of the stay of foreigners in the waiting zone beyond the initial 4 days. The stay cannot be extended by more than 8 days,8 renewable once.9 The JLD must rule “within twenty-four hours of submission of the case, or if necessary, within forty-eight hours of this, after a hearing with the interested party or their lawyer if they have one.”10 The administrative authority must make a request to the JLD to extend custody in the waiting zone and must explain the reasons for this (impossible to return the foreign national due to lack of identity documents, pending asylum application, etc.)
The duration of the stay in the waiting zone can be up to 20 calendar days; 26 days in exceptional cases.
The law provides a deadline of 2 working days for OFPRA to give its opinion to the Ministry of the Interior as of the moment the intention of the foreign national to claim asylum has been written down by the Border Police.11 Within these 2 days, OFPRA has to conduct an interview with the asylum seeker.
In 2015, the number of asylum applications made at the border reached its lowest level over the past 10 years with only 927 requests to enter the French territory on asylum grounds, down from 1,126 registrations in 2014.12 The top 5 nationalities of asylum seekers at the border in 2015 were Nigeria, Sierra Leone, the Congo, Cameroon and DRC. 38 requests were made by unaccompanied minors.13
The Border Division of OFPRA interviews the asylum seekers and formulates an opinion. This opinion is communicated to the Ministry of Interior. While the Ministry of Interior was taking the final decision to authorise or refuse entry into France, OFPRA’s opinion is now binding, except in case the asylum seeker represents a threat to national security.14 In theory, this interview is conducted to check whether the given facts are manifestly irrelevant or not. This review could look like a kind of admissibility procedure. It should only be a superficial review of the asylum application. In practice, the assessment usually covers the verification of the credibility of the account; interview reports contain comments on stereotypical, imprecise or incoherent accounts, with a lack of written proof. This practice of de facto examining the request on the merits is extremely problematic. The reform has introduced the possibility for applicants to be accompanied to their interview by a third person (see section on Regular Procedure: Personal Interview). This provision also applies to interviews conducted at the border. Specific provision regarding vulnerable asylum seekers have also been introduced, in particular OFPRA can consider that the specific vulnerability of the asylum seeker requires special procedural guarantees and thus terminate the detention in the waiting zone.15
If the asylum application is not considered to be manifestly unfounded or inadmissible, the foreign national is authorised to enter French territory and is given an 8-day temporary visa (safe passage). Within this time frame, upon the request from the asylum seeker, the competent Prefectures grant the person an asylum application certification to allow him or her to introduce its asylum claim. OFPRA then processes the asylum application as any other asylum application lodged directly on the territory.
If the asylum application is considered as manifestly unfounded or inadmissible, the Ministry of Interior refuses to grant entry to the foreigner with a reasoned decision. The person can lodge an appeal against this decision before the Administrative Court within a 48-hour deadline. If this appeal fails, the foreigner can be expelled to his or her country of origin (in application of Annex 9 of the Chicago Convention).
A deadline for the decision of the Ministry of Interior is not provided for in legislation. In practice, in 2015, 96% of the OFPRA opinions were delivered in less than 96 hours (1.58 days on average), compared to an average 1.39 days in 2014. In 2015, 26% of asylum seekers received a positive opinion and a right to enter the French territory to lodge an application, compared to 28.9% in 2014, 28.9%. 14 unaccompanied minors (37%) mainly from the Central African Republic, the Congo and Iraq, received a positive decision in 2015.16
The border procedure is very different from the asylum procedure on the territory. All asylum seekers subject to a border procedure are interviewed by the Border Division of OFPRA which provides the Ministry of Interior with a binding opinion on whether their application is well-founded or not. OFPRA delivers its opinion to the Ministry within 2 days after the intention of the seeker to apply for asylum has been recorded. In order to ground its decision, OFPRA conducts an interview with all foreign nationals having expressed their intention to lodge an asylum claim at the border.
In theory, these interviews should be very different to the interviews in the asylum procedure on the territory, as they are only supposed to look at whether the given facts are manifestly irrelevant to the criteria set out in the Refugee Convention or the criteria for granting subsidiary protection. It also assesses whether the application is manifestly inadmissible or if another State is responsible for the claim. This review should only be a superficial review of the asylum application. In practice, however, the review often includes the verification of the credibility of the account, as some rejection decisions contain reports of stereotypical, imprecise or incoherent accounts, with a lack of written proof. This practice of de facto examining the request on the merits is extremely problematic.17
The law provides the same provisions on interviews in the border procedure as in the regular procedure:18
If the interview of the asylum seeker requires the assistance of an interpreter, it is paid for by the State;
An asylum seeker introducing a claim at the border can be accompanied by a third person during his or her interview with OFPRA;
At the end of the interview, the asylum seeker and the third person, if applicable, are informed of their right to have access to a copy of the interview;
An audio recording of the interview is also conducted; and
There is a possibility for the interview to be conducted by video conferencing.
Issues with the quality of interpretation have been reported, as in some cases air carrier personnel or even consular authorities have been enlisted to provide interpretation, contrary to the principles of objectivity and neutrality.19 In addition to general concerns with the quality of interpretation in 2016, ANAFE has also reported problems in the conduct of personal interviews with LGBTI applicants, where the authorities have not taken into their difficulty to speak on matters relating to their sexual orientation during these procedures, particularly given the context of detention.20
At Roissy CDG airport, the OFPRA Border Division interviews the asylum seeker in the waiting zones (ZAPI3). With the exception of the Roissy CDG airport waiting zone, the interviews in all other border procedures are done by phone, with translation provided by an interpreter who is included in the phone call. ANAFE reports that these telephone interviews were previously conducted in open rooms next to the police station, but after the end of 2015 are held in closed rooms to ensure confidentiality.21 Overall, an interpreter was used in 59% of the interviews in 2015, compared to 54% in 2014.22
When the request for asylum made at the border is rejected, the foreign national is considered to be "not admitted" into French territory. There are several grounds for rejecting the request. Depending on the nature of this ground the asylum seeker can introduce an appeal to challenge this decision before the Administrative Court.
Before the Administrative Court, the applicant can contest the inadmissibility to the French territory which is consecutive to the rejection of the asylum claim due to its unfoundedness.
Apart from the above mentioned cases, the inadmissibility on the French territory might derive from the fact that France is not responsible for the asylum claim, meaning the Dublin procedure shall apply.
Hence, when the claim is rejected because the seeker falls under the Dublin procedure and another State is responsible for processing his or her asylum claim, the person has 48 hours to make an appeal to the Administrative Court to overturn the decision, during which he or she cannot be returned. This appeal has suspensive effect.23
In a decision of 28 November 2011, the Council of State clarified that the 48-hour deadline to lodge an appeal before the administrative court does not begin until the OFPRA report is received by the asylum seeker in a sealed envelope as provided by the law. However, it found that “failure to transmit this report, if it is an obstacle to the initiation of the appeal deadline, and the automatic execution of the ministerial decision to refuse entry on the basis of asylum, has no influence on the legality of this decision.”24
Indeed since January 2012, asylum seekers have been informed on the day of the hearing about the decision of the appeal court. However, sometimes they only receive the reasoned decision of the court on their appeal several days later, provided they have not been returned beforehand. No other appeal can be made against the decision to refuse entry on asylum grounds, except for Rule 39 interim measures before ECtHR. The foreign national may request the services of an interpreter from the President of the Court and can be assisted by a lawyer if he or she has one. He or she may also ask the President of the Court to designate one. The decision of this Administrative Court can be challenged within 15 days before the President of the competent Administrative Court of Appeal, but this appeal does not have suspensive effect.
Based on “considerations of the proper application of justice”, the Council of State assigns the case to the Administrative Court that is closest to the concerned waiting zone,27 and no longer to the Administrative Court of Paris only, as was previously the case.
There are many practical obstacles to lodging appeals effectively at the border. Modalities for the implementation of appeals are too restrictive for most foreign nationals held in waiting zones, who should in principle have access to an effective appeal procedure. Although it has suspensive effect, this appeal is very difficult to carry out because it has to be made in French within 48 hours, with a legal justification, otherwise it might be rejected without a hearing by the Administrative Court. Language is an important obstacle to lodging an appeal, as there is no free interpreting service available in the waiting zone. ANAFE and other NGOs such as Forum réfugiés – Cosi rely on some volunteer interpreters but they are not always available.28 There is no “on duty” lawyer system in the waiting zone and, in most waiting zones, NGOs try to provide legal advice by telephone. Besides, as the procedure for examining asylum applications at the border is so poorly defined, arguments linked to an infringement of the procedure are difficult to substantiate. The justification for the appeal therefore has to be based on the demonstration that the asylum application is well-founded in order to challenge the ministerial motivation.
ANAFE has denounced the illusory nature of the effectiveness of this suspensive appeal in a report published in November 2015 and a report of November 2016.29 According to these reports, the modalities of the appeal are far too restrictive and there is an accumulation of serious material difficulties: difficult access to a phone, lack of copy machines, difficulties to obtain the summary of the OFPRA interview. Finally, the 48-hour period starts from the time of notification of the negative decision. Beyond this strict deadline, no other appeal is possible (with the exception of appeals to the ECtHR). Some notifications of a negative decision are made in the middle of the night, which means that by the time the asylum seekers are able to contact a lawyer or speak with advisers, the time available is drastically reduced.
In Marseille in 2015, ANAFE also reported that the police had endeavoured to remove an asylum seeker whose appeal before the Administrative Court had been lodged. The removal failed thanks to the intervention of his lawyer in the middle of the night.30
Finally, two locations for “off-site” appeal hearings were discussed vividly in France in autumn 2013. Indeed a hearing room opened in September 2013 in the administrative detention centre of Le Mesnil-Amelot (near Paris) and another one was planned to be used in the waiting zone of Paris-Charles de Gaulle airport as of January 2014. The authorities had justified the relocation of these appeal hearings by explaining that it would avoid costly transfers, sometimes conducted in conditions which do not respect the dignity of the persons concerned. Many NGOs,31 as well as Council of Europe Commissioner for Human Rights, Nils Muižnieks,32 have raised concerns with regards to this initiative as it gives the impression that foreigners are not appellants like any other. At the time of the writing, this site is not open yet but in a ruling of 9 September 2015, the Court of Cassation (Cour de Cassation) gave a conclusion to these heated discussions: the opening of off-site hearing rooms is validated. The Court of Cassation considers that this system is legal and that the conditions of hearings and the working conditions of lawyers and judges are similar to those in regular appeal hearings.
There is no permanent legal adviser or NGO presence in the French waiting zones; only ANAFE is occasionally present in Roissy CDG airport. Asylum seekers must therefore try to get hold of an adviser by phone from the waiting zone. Many concerns have been raised about effective access to a telephone.33
A third person (lawyer or representative of an accredited NGO) can be present during the OFPRA interview;34 and legal representatives shall be present for unaccompanied children.
In appeal procedures, before the CNDA (see Legal Aid in Regular Procedure) the asylum seeker can request ipso jure legal aid. Before the Administrative Court, asylum seekers can be assisted by an appointed lawyer on the basis of “genuine right to legal aid”. They can ask for this support at any stage of the procedure including on the day of the hearing before the Administrative Court.
Asylum seekers can request to be assisted by a court appointed lawyer during their hearing before the JLD who is competent to rule on the extension of their stay in the waiting zone. In theory, the asylum seeker should have hired one previously at his or her own expense, or prepared a sufficiently well-argued request in French by him or herself, in terms of facts and points of law. This is another illusory measure that does not guarantee the asylum seeker access to an effective remedy, even though they have access to court-appointed lawyers if necessary.35
The NGO ANAFE denounces the fact that these cases are handled in haste by the court-appointed lawyers. Indeed, due to the urgency of the appeal and to the functioning of the administrative courts, the court-appointed lawyers in reality only have access to all the elements of the case once they meet the asylum seeker at the court, meaning in the best case scenario one hour before the start of the hearing. Under these conditions, it is difficult for the lawyer to know the story of the person held in the waiting zone and to provide a good appeal.36
The General Controller of places of freedom deprivation deplored in 2015 the fact that the recommendations he had formulated in his 2013 reports had not been implemented. The General Controller has in particular pointed out the fact that access to a phone was not guaranteed. This situation can prevent third-country nationals placed in transit zones from being effectively supported by their lawyer with whom they cannot have confidential contacts. Indeed, access to phones is limited by police officers who remain by the sides of the foreigners while they have an interview with their lawyer.37
- 1. Article L.213-8 Ceseda.
- 2. ANAFE, Des zones d’attente aux droits, November 2015, available in French at: http://bit.ly/2iUEYFt.
- 3. For detailed additional information on the risks for children in waiting areas, Ibid. See also ANAFE, La procédure en zone d'attente: Guide théorique et pratique de l'Anafé (Theoretical and practical Guide, Procedure in waiting areas), January 2013, available in French at: http://bit.ly/1NCh7zz; Human Rights Watch (HRW), ‘France: Unaccompanied Children Detained at Borders’, 8 April 2014, available at: http://bit.ly/1hW8T7c.
- 4. Article L.221-2 Ceseda.
- 5. OFPRA, 2015 Activity report, 13 May 2016, 43.
- 6. Article L.221-2 Ceseda.
- 7. Article L.213-8-1 Ceseda.
- 8. Article L.222-1 Ceseda, as amended by Law n. 2016-274 of 7 March 2016.
- 9. Article L222-2 Ceseda.
- 10. Article L.222-3 Ceseda.
- 11. Article R.213-5 Ceseda.
- 12. OFPRA, 2015 Activity report, 13 May 2016, 43.
- 13. Ibid.
- 14. Article L.213-8-1 Ceseda.
- 15. Article L.221-1 Ceseda.
- 16. OFPRA, 2015 Activity report, 13 May 2016, 43.
- 17. For a recent critique, see ANAFE, Voyage au centre des zones d’attente, November 2016, 51.
- 18. Article R.213-4 Ceseda.
- 19. ANAFE, Des zones d’attente aux droits, November 2015, 19.
- 20. ANAFE, Voyage au centre des zones d’attente, November 2016, 51.
- 21. ANAFE, Des zones d’attente aux droits, November 2015, 24.
- 22. OFPRA, 2015 Activity report, 13 May 2016, 43.
- 23. Article L.213-9 Ceseda.
- 24. Council of State, Decision No 34324828, 28 November 2011.
- 25. See Decree n° 2012-89 of 25 January 2012 which amended Article R.777-1 CJA.
- 26. Contrary to what was provided in Article L.213-9 Ceseda, which stated that the administrative judge had a period of 72 hours to decide – after the hearing.
- 27. Article R.351-8 CJA.
- 28. ANAFE, Newsletter no. 10, testimony of support workers, December 2012.
- 29. ANAFE, Des zones d’attente aux droits, November 2015; Voyage au centre des zones d’attente, November 2016.
- 30. ANAFE, Voyage au centre des zones d’attente, November 2016, 18.
- 31. See the collective action launched in June 2013, “Défendre et juger sur le tarmac : stop à la délocalisation des audiences“. (Representing and judging on the tarmac: no to the relocation of hearings), available at: http://bit.ly/1RokPyG.
- 32. Council of Europe Commissioner for Human Rights, Letter from Nils Muižnieks to Ms Christiane Taubira, 2 October 2013, available at: http://bit.ly/1LqRCUH.
- 33. In Lyon, there is a phone number indicated above the phone, with the explanation in five languages that an NGO staff can be available for legal advice.
- 34. Article L.213-8-1 Ceseda.
- 35. See also OEE, Rapport d’observation « Une procédure en trompe l'oeil » Les entraves à l'accès au recours effectif pour les étrangers privés de liberté en France, May 2014.
- 36. ANAFE, Voyage au centre des zones d’attente, November 2016, 53.
- 37. General Controller of places of freedom deprivation, 2015 Activity report, 27 January 2016, available in French at: http://bit.ly/2jhSdvd.