Access to the territory and push backs

France

Country Report: Access to the territory and push backs Last updated: 18/03/21

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Persons refused entry into the territory after arriving at the border have the possibility to ask for a “full day” (jour franc) that allows them to be protected from removal for 24 hours.[1] In the case of adults, this right must be requested, whereas under the law unaccompanied children cannot be removed before the expiry of the jour franc unless they specifically waive it. The jour franc does not apply to refusals of entry issued at land borders or in Mayotte since September 2018, in accordance with the modifications adopted by the 2018 reform.[2]

In 2018, the French police recorded 71,274 refusals of entry at the border, compared to 85,408 in 2017.[3] No data was made available at national level for the 2019 and 2020. As regards external borders, Eurostat statistics indicate that a total of 56,650 third country nationals were refused entry at the external borders in 2019, while 2020 figures were not available at the time of writing of this report.[4]

In December 2019, several NGOs have requested a parliamentary commission with the aim to investigate violations of the law at the border.[5] The issues reported by these NGOs include violent practices, pushbacks, the absence of medical and social care as well as a lack of support to vulnerable applicants including unaccompanied minors. The establishment of a parliamentary commission had already been requested by several French Deputies in November 2019.[6] Nevertheless, none of these proposals have been implemented so far.

Since 2015, the French police has intensified border controls which aim to prevent asylum seekers from accessing France. As a result, the closure of the border has been maintained and several police operations have been reinforced in recent years. Despite the fact that the reintroduction of border control at the internal borders must be applied as a last resort measure, in exceptional situations, and must respect the principle of proportionality, France has regularly re-introduced border controls at its internal borders in recent years. The current temporary border control is valid since 1 November 2020 and up until 30 April 2021.[7] Moreover, it should be noted that the Council of State validated in October 2019 a temporary border control decision that had been taken in 2018.[8] The Council of State has considered that this measure, which is based on “current events and the high level of the terrorist threat prevailing in France”, leads to a limitation of the freedom of movement that is proportionate to the aim pursued. In a decision issued in November 2020, the Council of State indicated that European law does not allow to issue a refusal of entry to a foreigner arrested while crossing an internal border or close to it, nor does it automatically deprive an asylum seeker from reception conditions i.e. accommodation. The rules from Return directive must apply.[9]

Access at the Italian land border

Reports of people being refused entry without their protection needs being taken into account at the Italian border persisted in 2020, as confirmed by the High administrative court (Council of State) in a decision of 8 July 2020 in which it reminded the State of its legal obligations in matters of asylum at the border.[10] The Council of State concluded that by refusing the entry to the territory the authorities had manifestly infringed the right to asylum. In a joint statement, six NGOs welcomed the ruling, condemning the fact that these illegal practices are systematically being carried out by the police. The NGOs also urged the Ministry of the Interior to issue public instructions to the border police so that people wishing to seek international protection in France can do so at the French-Italian border as well.[11]

A network of researchers focusing on the Italian land border has also been established in 2018 to raise awareness on the issue and to establish a dialogue with civil society.[12] Illegal police operations at the border have been extended from the Menton and Nice areas to the Hautes-Alpes since 2016. Such practices of mass arrest have had an effect on shifting migratory routes, leading migrants to take increasingly dangerous routes through the mountains. By way of illustration, the Italian organisation Doctors for Human Rights (MEDU) denounced at the beginning of 2021 the critical situation of migrants who attempt to reach France from Italy through the Alpine border, highlighting inter alia that snow and freezing winter temperatures make the journey through the mountains particularly dangerous.[13]

Figures on the number of apprehended persons and refusals of entry at the Italian border were not made available in 2020 at the time of writing of this report. Nevertheless, they remained significant in recent years, reaching 30,000 refusals of entry in 2019 according to NGOs.[14] The authorities in the district of Hautes-Alpes (Modane) stated, however, that 1,254 entry bans have been notified in the first nine months of 2019, compared to 3,587 in 2018.[15] In 2018, the Prefect of Alpes-Maritimes reported that 29,000 migrants were apprehended at the Italian border,[16] down from more than 50,000 migrants arrested at the border in 2017,[17] of whom a striking 98% had been pushed back to Italy.[18]

Racial profiling by the Border Police and other police forces deployed in the region of Hautes-Alpes have also been reported, whereby passengers who appear to be of African origin are being controlled in board trains arriving from Italy.[19] Moreover, persons who explicitly express the intention to seek asylum have been refused entry by the French authorities on the basis that Italy is responsible for their claim, without being placed under the formal procedure foreseen by the Dublin Regulation.

Border controls have also led to new forms of Detention, including de facto detention in areas such as the police station of Menton, which cannot be accessed by civil society organisations.[20] This has been upheld by the Council of State as lawful during the period necessary for the examination of the situation of persons crossing the border, subject to judicial control.[21] In October 2019, a French Member of European Parliament was refused access to the police station in Menton as it is not considered formally as a place of detention.[22] In a report on detention conditions in the context of immigration in France, published in March 2020, the European committee for the prevention of torture (CPT) reported that the material conditions in the premises in Menton were extremely poor and could undermine the dignity of the people placed there. The Committee has expressed serious doubts on whether people who are refused entry to the territory are able to know, understand and exercise their rights.[23]  In December 2020, the administrative court of Marseille suspended the decision of the Prefect prohibiting access of NGOs to the place where migrants are kept at the border in Hautes-Alpes.[24] A similar decision has been issued by the administrative court of Nice regarding access to the police station in Menton, but a new decision issued by the Prefect continues to deny the acces to NGOs.[25]

Media reports have documented incidents of unaccompanied children refused entry by police authorities and directed towards the Italian border.[26] The Italian Minister of Interior also accused France of such practices back in October 2018. In 2020, French Administrative courts have regularly condemned the Prefecture for its illegal practices at the border violating the rights of the children.[27] Several NGOs further published a report in October 2020 on the illegal practices of the French authorities in this regard, which seem to be applied at several borders.[28]

Despite strong condemnation by monitoring bodies,[29] civil society organisations,[30] as well as court rulings condemning Prefectures for failing to register the asylum applications of people entering through Italy,[31] practice remains unchanged. In response to a report by the General Controller of Places of Detention (CGLPL), the Ministry of Interior stated in June 2018 that refusals of entry are not in contravention of the law, invoking Article 20(4) of the Dublin Regulation according to which “[w]here an application for international protection is lodged with the competent authorities of a Member State by an applicant who is on the territory of another Member State, the determination of the Member State responsible shall be made by the Member State in whose territory the applicant is present.” Through this statement, the Ministry implies that asylum applications are made before French officials on Italian soil.

A preliminary inquiry into unlawful police practices in Menton was launched in February 2019,[32] but was still pending at the beginning of 2021. In July 2019, several NGOs have sent documented requests to the Prosecutor in Nice and to the Special rapporteur on the human rights of the migrants in order to cease violations of fundamental rights at the French-Italian border.[33]

Local habitants have supported asylum seekers at the border inter alia by rescuing them on the mountain, but the increased restrictions on access to the territory have been coupled with criminalisation of humanitarian assistance. Several persons helping migrants have been prosecuted and ultimately convicted by French courts. For example, on 8 August 2017, Cedric Herroux received a four-month suspended sentence by the Court of Appeal of Aix-en Provence for helping migrants.[34] The Constitutional Court held in July 2018 that this sentence was unconstitutional as it violated the fraternity principle,[35] and the Court of Cassation quashed the conviction.[36] Convictions continue to be delivered in other cases.[37] On 26 February 2020, the Court of Cassation further held that the protection of acts of solidarity is not limited to individual and personal actions but also extends to a militant action carried out within an association.[38] Consequently, another conviction of Cedric Herroux was quashed by the Court of appeal of Lyon in May 2020.[39] As reported by a Member of the European Parliament, Damien Carême, actions of volunteers trying to help migrants at the border are still complicated by the police in the beginning of 2021.[40]

Access at the Spanish land border

Due to the increasing number of migrants arriving in Spain, the French-Spanish land border has become one of the main entry points to France since 2018. Spanish media have reported that migrants are pushed back from France to Spain without appropriate guarantees, in procedures lasting less than 20 minutes.[41] Reports have shown Border Police officials controlling groups of migrants in Hendaye, placing them on board a van and leaving them at the border instead of handing them over to their Spanish counterparts.[42] In February 2021, the border police illegally returned a 16-years old unaccompanied child from Bayonne (France) to Irun (Spain). The NGOs which reported the incident indicated that these illegal practices are recurrent and recalled that the authorities must take into account the best interest of the child, in accordance with the United Nations Convention on the Rights of the Child.[43]

Civil society organisations have denounced what appears to be a practice mirroring the methods of the Border Police on the Italian border.[44] Médécins Sans Frontières (MSF) alerted in February 2019 that “[p]eople are denied the opportunity to apply for asylum in France, and minors are not considered as such; they are routinely turned away and sent back to Spain, instead of being protected by the French authorities as the law requires.”[45] Local authorities in Bayonne have also criticised current practice vis-à-vis migrants arriving from Spain.[46]

According to the media, 11,000 refusals of entry decisions have been issued at the Spanish land border in the area of Pyrenees Orientales during the first 10 month of 2020, i.e. twice as many as in 2019.[47] In 2018, 10,500 refusals of entry had been issued during that same period of 10 months at the French-Spanish border.[48] Figures on the full year 2020 were not made available.

Access at borders in overseas territories

In November 2017, a human rights monitoring institution (Commission nationale consultative des droits de l’homme – CNCDH) has published a report on the situation of asylum in French Guyana and Mayotte.[49] Many situations of impossibility to apply for aylum at the border have been reported as a result of which the CNCDH urged the authorities to « allow effective access to asylum applications at the border ».

In Mayotte, thousands of people are arriving each year from Comoros and sometimes from African or Asian countries, especially Sri Lanka. According to the media, ten migrants from the Comoros, including a 7-year-old child, died in September 2020 when attempting to reach the French Overseas Department of Mayotte on board of a craft which sank.[50] In French Guyana, 2,500 refusals of entry have been reported in the first semester of 2020.[51] On the Reunion Island, NGO reported the expulsion of asylum seekers from Sri Lanka in 2018 with possible violation of fundamental rights.[52]

Access at airports

ANAFE (the National Association of Border Assistance to Foreigners – Association nationale d’assistance aux frontières pour les étrangers) is, an organisation that provides assistance to foreigners in airports. In its Annual report published in September 2020, the organisation highlighted several difficulties in accessing the right of asylum at airports.[53] According to the latter, there is a general lack of information on the right to seek asylum and difficulties occur in the registration of asylum claims at the border. It further highlighs the important role of the Police in practice and the obstacles it may create regarding the asylum application. Similar issued ar further described below under the Border procedure (border and transit zones).

 

 

[1] Article L.213-2 Ceseda.

[2] Article L.213-2 Ceseda, as amended by Article 18 Law n. 2018-778 of 10 September 2018. Note that in response to a report by the General Controller of Places of Detention (CGLPL), the Ministry of Interior stated in June 2018 that the jour franc does not apply in the context of reintroduction of Schengen border controls: Ministry of Interior, Response to the CGLPL, 18-019754-A/BDC-CARAC/JT, 7 June 2018, available in French at: https://bit.ly/2SEfU7k, 5.

[3] Projet de loi de réglement 2018 – Rapport annuel de performance de la mission Immigration, asile, intégration, 13 May 2019, available in French at : https://bit.ly/37asL4F, 27.

[4] Eurostat, [migr_eirfs], available at: https://bit.ly/3cUzchP.

[5] Amnesty International France, La Cimade, Médecins du Monde, Médecins sans Frontières, Secours Catholique-Caritas France, Anafé, MRAP, Syndicat des avocats de France, ‘Nous demandons une commission d’enquête parlementaire pour le respect des droits des personnes exilées à nos frontières’, 3 December 2019, available in French at : https://bit.ly/2FS8Vix.

[6] Assemblée nationale, ‘Proposition de résolution nº 2394 tendant à la création d’une commission d’enquête sur la violation des droits humains aux frontières françaises’, available in French at : https://bit.ly/3cj0fD4.

[7] European Commission, ‘Member States’ notifications of the temporary reintroduction of border control at internal borders pursuant to Article 25 et seq. of the Schengen Borders Code’, available at : https://bit.ly/3pnjCid.

[8] Council of State, 16 October 2019, available in French at: https://bit.ly/2wHgW8p.

[9]  Council of State, Decision n° 428178, 27 November 2020, available in French at : https://bit.ly/3ac7REC.  

[10] Council of State, Decision n°440756, 8 July 2020, available in French at : https://bit.ly/3acd5QQ .

[11] Amnesty International and others, ‘La France viole le droit d’asile à la frontière italienne’, 10 July 2020, available in French at : https://bit.ly/2JWslIM.

[12] See official website available in French at: https://obsmigration.hypotheses.org/.

[13] InfoMigrants, ‘Critical situation for migrants at Italian-French border’, 9 February 2021, available at: https://bit.ly/3aMpBHa; See also: ECRE, ‘France: Evictions Continue amid Winter Emergency while Council of State Allows Preventing Media Access, 12 February 20201, available at: https://bit.ly/3jRTbip.

14. Le Monde, ‘Frontière franco-italienne : l’interdiction faite aux ONG d’assister les migrants suspendue par la justice’, 17 December 2020, available in French at : https://bit.ly/39okCgi.

15. La Provence, ‘Hautes-Alpes : moins de migrants à la frontière franco-italienne depuis plusieurs mois’, 7 October 2019, available in French at : https://bit.ly/35XZ45j.

[16] Europe 1, ‘Le préfet des Alpes-maritimes annonce que le nombre de migrants est en baisse dans le département’, 23 January 2019, available in French at: https://bit.ly/2CD51Ie.

[17]  20 minutes, ‘Cote d’Azur : à la frontière italienne, un nombre reccord de passeurs interpellé’, 4 December 2017, available in French at: http://bit.ly/2qMHySh.

[18] Ibid.

[19]Politis, ‘Visite surprise d’élus à la police aux frontières de Menton’, 1 April 2018, available in French at: http://bit.ly/2jdMOaV.

[20]ECRE, Access to asylum and detention at France’s borders, June 2018, available at: https://bit.ly/2JaRrSu, 18-19.

[21]  Council of State, Order No 411575, 5 July 2017.

[22] Francetvinfo, ‘Migrants : Manon Aubry interdite d’accès au centre d’accueil de la police aux frontières de Menton’, 31 October 2019, available in French at : https://bit.ly/2RjtmKq.

[23] Council of Europe, CPT, Rapport au Gouvernement de la République française relatif à la visite effectuée en France par le Comité européen pour la prévention de la torture et des peines ou traitements inhumains ou dégradants (CPT) du 23 au 30 novembre2018, 24 March 2020, available in rench at : https://bit.ly/39rfnJw.

24. Le Monde, ‘Frontière franco-italienne : l’interdiction faite aux ONG d’assister les migrants suspendue par la justice’, 17 December 2020, available in French at: https://bit.ly/39okCgi.

25. France télévision, ‘Frontière italienne : les associations d’aide aux migrants ne pourront pas visiter le local de mise à l’abri à Menton’, available in French at: https://bit.ly/39ndmBr.

26.  Republica, ‘Migranti prigionieri per ore”, nuovo caso al confine francese’, 17 July 2019, available in Italian at : https://bit.ly/2Urx8Vh; News Deeply, ‘Dodging death along the Alpine passage’, 25 January 2018, available at: https://bit.ly/2H99SDP; France Culture, ‘Quand les mineurs africains sont abandonnés dans la montagne’, 17 November 2017, available in French at: https://bit.ly/3bar89f.

[27]  See e.g. Administrative Court of Nice, Orders n° 2000856, 2000858, 24 February 2020 ; Administrative Court of Nice, Orders n° 2000570, 2000571 2000572, 7 February 2020.

[28]  Amnesty International and others, ‘Les manquements des autorités françaises aux devoirs élémentaires de respecter, protéger et mettre en œuvre les droits des mineur.e.s isolé.e.s étranger.e.s en danger aux frontières intérieures terrestres de la France (frontières franco-italienne, franco-espagnole et franco-britannique)’, October 2020, available in French at : https://bit.ly/3acF5Um.

[29] General Controller of Places of Detention (CGLPL), Rapport de visite des locaux de la police aux frontières de Menton (Alpes-Maritimes) – Contrôle des personnes migrantes à la frontière franco-italienne, June 2018, available in French at: http://bit.ly/2JjUpzY; National Consultative Commission for Human Rights (CNCDH), Avis sur la sitation des migrants à la frontière franco-italienne, 18 June 2018, available in French at: https://bit.ly/2sKHZdJ.

[30] See e.g. Anafé, Persona non grata : Conséquences des politiques sécuritaires et migratoires à la frontière franco-italienne, January 2019, available in French at: https://bit.ly/2E2EJQ6; ECRE, Access to asylum and detention at France’s borders, June 2018, available at: https://bit.ly/2JaRrSu; La Cimade, Dedans, dehors: Une Europe qui s’enferme, June 2018, available in French at: https://bit.ly/2MrISQj; Forum réfugiés-Cosi, Pour une pleine application du droit d’asile à la frontière franco-italienne, 24 April 2017, available  in French at: http://bit.ly/2mQY26t.

 

31. See e.g. Council of State, Decision n°440756, 8 July 2020, Op. cit. ; 20 Minutes ‘Nice : La préfecture à nouveau épinglée pour des violat ions du droit d’asile à la frontière franco-italienne’ 3 March 2020, available in French at: https://bit.ly/39p6CTI; Administrative Court of Marseille, Order N° 1901068, 18 March 2019; Administrative Court of Nice, Order No 1701211, 31 March 2017; Order No 1800195, 22 January 2018; Order No 1801843, 2 May 2018.

[32] Ligue des Droits de l’Homme, ‘Violences policières et administratives contre des migrants : une enquête préliminaire à Menton’, 5 February 2019, available in French at: https://goo.gl/Ggknbg.

[33] Medecins du Monde, ‘Atteintes aux droits à la frontière franco-italienne’, 16 July 2019, available in French at : https://bit.ly/2Nycezr.

[34] Le Monde, ‘Coupable d’avoir aidé des migrants, Cédric Herrou « continuera à se battre »’, 8 August 2017, available in French at: http://lemde.fr/2vhq7rs.

[35] Constitutional Court, Decision 717-718, 6 July 2018.

[36] Court of Cassation, Decision 17-85.736, 12 December 2018.

[37] See e.g. La Croix, ‘Le délit de solidarité est toujours sanctionné’, 15 January 2020, available in French at https://bit.ly/35UplBq ; Anafé et al, ‘Les 7 de Briançon lourdement condamné·e·s par le tribunal de Gap’, 13 December 2018, available in French at: https://goo.gl/GxyvYy.

[38] Court of Cassation, Decision 19-81.561, 26 February 2020, available in French at: https://bit.ly/2TzksdZ.

39. Le Monde, ‘Symbole de l’aide aux migrants, Cédric Herrou relaxé par la cour d’appel de Lyon’, 13 May 2020, available in French at : https://bit.ly/3ohlBmM

[40] Damien Carême, ‘Le harcèlement, lors des maraudes, à la frontière avec l’Italie doit cesser!’ 19 January 2021, available in French at : https://bit.ly/36gPKfS.

41. El País, ‘Francia usa una medida antiterrorista para devolver migrantes a España’, 1 September 2018, available in Spanish at: https://bit.ly/2Cxr85Q.

42. Ibid.

[43] ANAFE, L’Etat français renvoie illégalement un enfant à la frontière franco-espagnole, 10 February 2021, avaialble in French at : https://bit.ly/3aXP1l0.

44. MSF, ‘Migrants trapped in relentless cycle of rejection on French-Spanish border’, 6 February 2019, available at: https://goo.gl/CdT9gC. See also Accem et al., ‘Augmentation des arrivées en Espagne : l’Europe doit sortir la réforme de Dublin de sa paralysie’, 4 December 2018, available in French at: https://goo.gl/8ZCpAg.

45. MSF, ‘Migrants trapped in relentless cycle of rejection on French-Spanish border’, 6 February 2019, available at: https://goo.gl/CdT9gC.

46.  New York Times, ‘French Mayor Offers Shelter to Migrants, Despite the Government’s Objections’, 12 February 2019, available at: https://goo.gl/VeSv1C.

47.  L’Indépendant, ‘Pyrénées-Orientales : 11 000 refus d’entrées sur le territoire depuis le 1er janvier 2020’, 5 November 2020, available in French at : https://bit.ly/2NBnHB7.

[48] Le Monde, ‘Paris et Madrid défendent leur coopération sur la question migratoire’, 13 November 2018, available in French at: https://goo.gl/5gafGT.

[49] Commission nationale consultative des droits de l’homme, ‘Avis droit des étrangers et droit d’asile dans les outre-mer. Cas particulier de la Guyane et Mayotte’, 26 September 2017, available in French at : https://bit.ly/2M1MYnU

[50] Le Monde, ‘Un nouveau drame de l’immigration clandestine à Mayotte fait plusieurs morts, dont un enfant’, 25 September 2020, available in French at : https://bit.ly/2Mx8Ff6.

[51]  Fance Info, ‘Guyane : 2 500 refus d’entrée sur le territoire au premier semestre’, 12 November 2020, available in French at : https://bit.ly/3oop7Mf.

[52]La Cimade, ‘La Réunion : expulsion de 8 demandeurs d’asile Sri Lankais en toute opacité’, 10 october 2018, Available in French at : https://bit.ly/36gZGpA.

[53] ANAFE, Annual report 2019, available in French at: https://bit.ly/3a5GM6k, 66.

Table of contents

  • Statistics
  • Overview of the legal framework
  • Overview of the main changes since the previous report update
  • Asylum Procedure
  • Reception Conditions
  • Detention of Asylum Seekers
  • Content of International Protection
  • ANNEX I – Transposition of the CEAS in national legislation