Author
Foreigners held in CRA are informed about the reasons for their placement in these centres through the notification of the administrative decision. This notification must state clearly which removal ground serves as a basis for the detention and why the removal cannot be implemented immediately. This document also mentions the legal remedies available to challenge this decision.
Foreigners also receive a notification of all their rights including the right to apply for asylum and their right to linguistic and legal support in submitting their claim.[1] According to the law,[2] this notification should be made (orally) to the foreigner in a language they understand. In practice, this is done in most of the cases but not always. Detainees are also notified that their asylum claim will be inadmissible if it is submitted 5 days after their rights have been notified. The claim is deemed to be admissible after 5 days only if it is based on elements or events occurred after these 5 days. This condition is not applicable to foreigners from safe countries of origin; their claim will be deemed inadmissible in any case when it is submitted five days after they have had their rights notified.[3]
The law foresees a judicial review of the lawfulness of the administrative detention of all foreigners. The legality of detention falls under the dual control of the Administrative Court and the Civil Court. Each court examines specific and complementary aspects of the procedures. It is quite difficult to assert if there is a judicial review of the lawfulness of administrative detention, as the Administrative Court reviews the lawfulness of the removal order and house arrest if this measure was taken by the Prefect before the placement in detention. The Civil Court i.e., the JLD intervenes two days after this placement.
Overseas France: Since the 1st of March 2019, the first review by the judge (JLD) in Mayotte is at the fifth day.[4]
Administrative Court: Legality of administrative decisions of removal and house arrest
The Administrative Court intervenes upon request of the foreigner (asylum seeker if relevant) who challenges the legality of the decisions taken by the Prefect, i.e. the measures of removal and/or house arrest.[5] Removal and house arrest orders must be challenged within 48 hours. This period starts from the notification of the measure, and not from the arrival at the administrative detention centre. The administrative judge can, for example, verify that the Prefect has not committed a gross error of appreciation by ordering the removal of the territory when the foreigner is entitled to stay on the French territory. In sum, the court has to decide on the reasons why a foreigner has been placed in detention.
Moreover, the French Constitutional Court ruled on 4 October 2019 that the administrative court is competent to assess the legality of a decision to maintain a person in administrative detention if, based on a motivated and written decision, the Prefect considers that the asylum claim has only been lodged to prevent a notified or imminent order of removal.[6]
The judge can also verify if the Prefect’s decision of house arrest does not contravene the best interests of the foreigner and if the measure is proportionate. The administrative court must decide within 72 hours.[7]
The Administrative Court can, only in cases of an asylum claim, control the lawfulness of the detention. If an asylum claim is submitted during detention, it is possible to challenge the decision of placement in detention within 48 hours after the notification of the detention. The claimant has to prove their claim has not been submitted only in order to thwart the removal measure. The court has to decide within 72 hours after the claim has been lodged.[8]
In several Prefectures, the asylum seeker is placed in detention on a Friday, to avoid the possibility for him to access legal assistance during the weekend, and to carry out the transfer within 48 hours. In these frequent cases, people are deprived of an effective appeal.[9]
Judge of Freedoms and Detention (JLD): Conformity of deprivation of liberty
The JLD, whose competence is set out in Article 66 of the Constitution, intervenes in the procedure by request of the Prefect at the end of the first 2 days of administrative detention in order to authorise a prolongation of the detention, after having examined its lawfulness. As stated by the Constitutional Court in its ruling of 4 October 2019, however, the competence of the administrative court to assess the legality of an order to maintain people who ask for asylum in detention does not violate the French Constitution.
As regards the mandate of the JLD, they will check whether the police respected the procedure and the rights of the person during the arrest, the legality of the police custody and the placement into administrative detention. The judge will also examine whether the custody is compatible with the personal situation of the detainee. The JLD intervenes a second time after 28 days of detention if the person is still detained and has not been removed. This judge can also be requested to intervene at any moment by the person detained in administrative detention centres but these requests have to be very solidly argued (serious health problems for instance) and are hardly ever considered admissible.[10] Appeals lodged against the measure of removal or house arrest have suspensive effect over its execution.[11] It also possible for the foreigner to call upon the JLD at any moment during the first 48 hours through a motivated request.[12]
The law enables foreigners to challenge the removal decision from the moment of its notification. This implies it would be impossible, theoretically, to remove someone before they have been in a position to call upon the judge, either administrative or civil.
Since the end of 2017, there have been cases of court hearings conducted by videoconference from the CRA of Toulouse, whereas this was already the case in other CRA.[13] These have been denounced by NGOs on the ground that individuals are not provided with the minimum guarantees set out in the law, namely the fact that the hearing must be accessible to the public.[14] Some other cases have been reported in 2019, e.g. in Hendaye.[15] The use of videoconference has been further developed during the health crisis in the context of COVID-19.[16] Many court hearings have been carried out via videoconferencing since March 2020, thus raising fears that it becomes a standard practice after the health crisis. Concerns raised include the fact that it may render communication more difficult, especially in light of technical problems already reported in practice, and risk of undermining the rights of the defence. In Mesnil-Amelot near Paris, on the other hand, the JLD hearings take place in an annex of the Court (TGI) located in the CRA. Annexes of the competent courts are also established in Coquelles and Marseille for detention hearings.
As regards detention in the context of the Border Procedure, the 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,[17] renewable once.[18] 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.”[19] The administrative authority must lodge a request with 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.).
In Roissy, since end of 2017, hearings take place in an annex of the Court (TGI) of Bobigny. NGOs have noted that this annex undermines the public character of hearings given the obstacles to physically accessing the waiting zone of Roissy, as well as the right to legal representation insofar as lawyers have no access to phone, fax or Wi-Fi to receive urgent documents if needed.[20]
[1] Article L.744-6 Ceseda; Article R.744-17 Ceseda.
[2] Articles L. 141-2 et L.141-3 Ceseda.
[3] Article L.754-1 Ceseda.
[4] Loi relative au délai d’intervention du juge des libertés et de la détention en rétention administrative à Mayotte (n° 2019-161 du 1er mars 2019)
[5] Article L.741-10 Ceseda
[6] Constitutional Court, Decision 2019-807, 4 October 2019, available in French at: https://bit.ly/2UGAELy.
[7] Ibid.
[8] Ibid
[9] Practice-informed observations by Forum Réfugiés and partners.
[10] Article L.743-18 Ceseda.
[11] Article L.722-8 Ceseda.
[12] Articles R.741-3 and L.742-8 Ceseda.
[13] See e.g. Observatoire de l’enfermement des étrangers, ‘Justice hors la loi ! Une audience illégale au sein du centre de rétention de Toulouse”, Press Release, 4 February 2019.
[14] Syndicat des Avocats de France, ‘La justice par visioconférence : des audiences illégales au sein même des centres de rétention’, 18 January 2018, available in French at: http://bit.ly/2Dyo5di.
[15] Le Figaro, ‘Polémique après l’audience d’étrangers en visioconférence dans un commissariat‘. 10 October 2019, available in French at: https://bit.ly/37zim4q.
[16] InfoMigrants, ‘Avec le recours aux visioconférences, une justice expéditive pour des étrangers en rétention’, 20 August 2020, available in French at: https://bit.ly/3saR5NF.
[17] Article L. 342-1 Ceseda.
[18] Article L. 342-4 Ceseda.
[19] Article L. 342-5 Ceseda.
[20] ECRE, Access to asylum and detention at France’s borders, June 2018, 9.