OFPRA is competent to define specific modalities for processing asylum claims when required to guarantee the asylum seeker’s rights considering his or her particular situation or vulnerability.1 OFPRA can also decide not to process a claim under accelerated procedure if the asylum seeker needs specific procedural guarantees to be applied.2 These provisions apply to asylum seekers in detention. Their vulnerability has to be taken into account.
In theory, unaccompanied children cannot be returned and therefore cannot be detained as a consequence. Nevertheless, it is important to stress that in 2015, the five NGOs working in administrative detention centres met 280 detained persons who declared themselves to be children, up from 97 in 2014. These were young persons whose age had been disputed by the authorities and had been considered as adults, as a result of a medical examination for instance.3 49% of these young persons were released after a judicial decision in 2015.4
Moreover, it appears that the Prefectures are more and more prone to resort to these alternative measures for families, Since the 6 July 2012 Circular on the removal of families accompanied by children,5 enacted following the ECtHR’s ruling in Popov v France,6 Prefects are encouraged to make house arrest the rule, and limit (but not prohibit) the placement of children with their families in administrative detention to a last resort measure; it is important to note that the circular is not applicable to Mayotte. This principle was already foreseen in the Ceseda following the 2011 reform of the law.
An important drop in numbers of placements of families with children in administrative detention has been noticed since 2011, and was confirmed in 2013.7 However, there has been a new increase in detained families with children in 2015.8 The five NGOs working in the administrative detention centres recorded a total of 52 families, not necessarily asylum seekers, detained in these centres in mainland France in 2015. It seems that the majority of the families detained were subjected to a house arrest order.9
The number of families detained in Mayotte in unknown. Moreover, in Mayotte, children are often detained with adults who are not their parents. After the Administrative Court of Mamoudzou had approved this practice, the Council of State has twice condemned the Prefect of Mayotte, reminding him that it is compulsory to verify the parenthood link between a child and the adult he or she is linked to.10
In 2015, 4,811 children have been detained compared to 5,692 in 2014, which constitutes a decrease of 18%. This decrease is mainly due to the decrease of detained children in Mayotte (from 5,582 to 4,706) while the increase was of 57% in mainland France (from 45 to 105 children detained).11 The detention centre in Metz (Eastern France) concentrated 40% of families detained in 2015.
On 12 July 2016, ECtHR condemned France on five occasions for detaining children. In these decisions, the Court recalled that the detention of minors must be used as a last resort.12 Despite the Court decisions, some Prefectures detain families without attempting to find alternative solutions, such as in Toulouse where a family with a 2 years-old child has been detained by the end of July 2016.13
Another issue is raised in relation to victims of human trafficking. Detention places are not meant to guarantee protection and the police officers hearing third-country nationals in these centres mainly focus on their administrative status. Potential asylum-seeking victims of trafficking do not feel safe and confident to submit an asylum claim, or to express their fear and their situation. They encounter difficulties to trust police officers unable to protect them against their traffickers. On two occasions in 2015, two asylum seekers have been able to express their fear in detention and submit their application. One of them has been granted asylum by OFPRA during her detention and the other has been released to properly submit her application on the French territory.14
- 1. Article L.723-3 Ceseda.
- 2. Ibid.
- 3. Assfam et al., 2015 Detention report, 28 June 2016.
- 4. Ibid.
- 5. Circulaire INTK1207283C of 6 July 2012 sur la mise en œuvre de l'assignation à résidence prévue à l’article en alternative au placement des familles en rétention administrative (Circular on the implementation of house arrest as an alternative to the administrative retention of families).
- 6. ECtHR, Popov v France, Application Nos 39472/07 and 39474/07, Judgment of 19 January 2012.
- 7. Except for Mayotte where 3,512 children have been held in administrative detention in 2013.
- 8. Assfam et al., 2015 Detention report, 28 June 2016.
- 9. Assfam et al., 2015 Detention report, 28 June 2016.
- 10. Order of 5 Octobre 2014 and 9 January 2015. See Assfam et al., 2014 Detention report, 30 June 2015.
- 11. Assfam et al., 2015 Detention report, 28 June 2016.
- 12. ECtHR, A.B. v. France, Application No 11593/12, R.M. and M.M. v. France, Application No 33201/11, A.M. v. France, Application No 24587/12, R.K. v. France, Application No 68264/14 and R.C. v. France, Application No 76491/14, Judgments of 12 July 2016.
- 13. La Cimade, ‘Une enfant de deux ans en centre de rétention’, 28 July 2016, available in French at: http://bit.ly/2jjyHzO.
- 14. Assfam et al., 2015 Detention report, 28 June 2016.