Border procedure (border and transit zones)

France

Country Report: Border procedure (border and transit zones) Last updated: 30/11/20

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General (scope, time limits)

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, harbours or international train stations. This procedure is separate from the asylum procedure on French territory, insofar as it examines entry into the territory to seek asylum rather than the asylum application itself.[2]

The border procedure is governed 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.”

Persons refused entry can benefit from a jour franc, i.e. protection from removal for 24 hours. The jour franc is no longer guaranteed in Mayotte and at land borders since September 2018, however.[3]

As soon as asylum seekers apply for asylum after being refused entry into the territory, they are directed to a waiting zone. Article L.221-4 Ceseda 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 32 waiting zones in mainland France. Most of the activities take place at the Roissy Charles de Gaulle (CDG) airport.

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.[4]

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. In some areas such as Roissy or Marseille, the waiting zone is a facility separate from the airport, meaning that the asylum seeker is transported there to follow the procedure (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 an initial period of 4 days which can reach a maximum of 20 days.[5] Exceptionally, if a person held in a waiting zone makes an asylum application after the 14th day, the law foresees the possibility of a further extension of detention for six more days following the submission of the asylum application, with a view to allowing the authorities to conduct the asylum procedure.[6] Therefore detention in the waiting zone can reach 26 days if the person applies for asylum on the 20th day of detention.

The asylum application must 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. As mentioned in Access to the Territory, however, cases documented in waiting zones such as Beauvais suggest that the Border Police does not always comply with this obligation.

The main nationalities applying at the border in 2017 and 2018 were as follows:

Asylum applicants at the border by nationality

1 Jan – 31 Dec 2017

1 Jan – 31 Dec 2018

Sri Lanka

120

Morocco

140

Algeria

103

Turkey

131

Turkey

99

DRC

120

DRC

70

Sri Lanka

107

Albania

63

Cuba

90

Others

725

Others

856

Total

1,180

Total

1,444

Source: OFPRA.

 

The majority of applications are submitted in Roissy, far ahead of other waiting zones:

Asylum applicants at the border by main waiting zone

Waiting zone

1 Jan – 31 Dec 2017

1 Jan – 31 Dec 2018

Roissy

83%

75.7%

Orly

9%

12.7%

Others

9%

11.6%

Total

100%

100%

Source: OFPRA.

 

Elements examined in the border procedure

In the border procedure, the authorities assess whether:

  1. France is the responsible State to examine the claim;
  2. The asylum request is not manifestly unfounded; and
  3. The asylum claim is not inadmissible.[7]

Whereas the assessment of admissibility and manifest unfoundedness are within the remit of the Border Unit of OFPRA, the application of the Dublin Regulation is examined by the Ministry of Interior.

The law defines “manifestly unfounded” claims as follows: “A claim is manifestly unfounded when considering the foreign national’s statements and documentation it is manifestly irrelevant (manifestement dénuée de pertinence) as far as asylum criterion or manifestly lacking credibility (manifestement dépourvu de toute crédibilité) regarding the risk of persecutions or severe violations.”[8]

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.[9] Within these 2 days, OFPRA has to conduct an interview with the asylum seeker. 

This opinion is communicated to the Ministry of Interior. OFPRA’s opinion is binding, except in case the asylum seeker represents a threat to national security.[10] There are no known cases where the Ministry of Interior has refused to follow its opinion on national security grounds.

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 on matters such as the sexual orientation of the applicant, with a lack of written proof. This practice of de facto examining the request on the merits is extremely problematic.

A deadline for the decision of the Ministry of Interior is not provided for in legislation. In practice, in 2017, 72% of the OFPRA opinions were delivered in less than 96 hours (3.39 days on average), compared to an average of 2.43 days in 2016. More recent figures are not available.

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).

The opinions issued by OFPRA in 2017 and the first quarter of 2018 were as follows:

OFPRA opinions on admission to the territory on grounds of asylum

Waiting zone

1 Jan – 31 Dec 2017

1 Jan – 31 Mar 2018

 

Positive

Negative

Positive

Negative

Roissy

262

708

50

195

Orly

25

79

9

13

Marseille Airport

5

15

0

5

Lyon

4

12

2

3

Toulouse

4

11

0

1

Bâle-Mulhouse

4

10

0

0

Marseille Port

2

5

1

1

Bordeaux

3

3

0

1

Beauvais

0

5

0

3

La Réunion

0

4

0

1

Nantes

1

2

0

0

Nice

1

1

0

0

Strasbourg

0

1

0

0

Total

311

856

62

223

Source: OFPRA, 22 May 2018.

 

In 2018, 39.5% of asylum seekers received a positive opinion and a right to enter the French territory to register an application, compared to 26.3% in 2017. More recent figures were not available at the time of writing (March 2020).

So far, OFPRA has not issued opinions opposing admission to the territory on grounds of inadmissibility. The number of refusals of admission based on the Dublin Regulation are very limited.

 

Personal interview

 

The border procedure is very different from the asylum procedure on the territory. All asylum seekers subject to a border procedure are interviewed by a dedicated  “Border Unit” 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 working days after the intention to apply for asylum has been recorded. In order to substantiate its decision, OFPRA conducts an interview with the person.

The law provides the same provisions on interviews in the border procedure as in the regular procedure:[11]

  • 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.

Remote interviews

Roissy CDG airport, where the majority of border procedures take place, is the only waiting zone where the OFPRA Border Unit interviews the asylum seeker in person.

The interviews in Orly and Marseille are conducted by videoconference and interviews of all other border procedures are done by phone. Difficulties have been reported for asylum seekers in Marseille – where the waiting zone is located in the premises of the administrative detention centre of Canet – as they have to be escorted to the videoconference room within the detention centre section of the building and the videoconferencing system often runs into technical problems. Where technical problems arise, the interview is conducted by phone.[12] However, the Administrative Court of Marseille has invoked procedural irregularities and annulled decisions refusing admission to the territory for the purpose of seeking asylum where the interview with OFPRA has been conducted by phone rather than videoconference.[13]

In remote interviews, interpretation is ensured by an interpreter who is included in the phone call. Overall, an interpreter was used in 77.8% of the interviews in 2017, while the rest of the interviews concerned French-speaking asylum seekers. More recent figures were not available at the time of wirting.

According to organisations assisting asylum seekers, remote interview and interpretation prove particularly challenging for the individual as he or she is often interrupted by the protection officer, who is typing notes at the same time. In Nice, the interview report is read out to the applicant without being translated and does not mention whether the applicant was interrupted in the course of the interview.[14]

Accompaniment by a third party

The possibility for the applicant to be accompanied by a third party in the interview with OFPRA is rarely used at the border. In 2018, 6.9% of interviews in waiting zone were conducted with a third party (representing 93 interviews : 90 with a lawyer, 3 with an NGO) – compared to 4.1% in 2017.[15]  The limited use of this guarantee could be due to a lack of awareness on the part of asylum seekers, despite the fact that information sheets to that effect are available in the waiting zones, as well as the shortage in capacity of NGOs such as Anafé which have no permanent presence in the zones.[16]

 

Appeal

 

When the request for entry for reasons of asylum made at the border is rejected, the person is refused admission into French territory. The asylum seeker can introduce an appeal to challenge this decision before the Administrative Court.

Before the Administrative Court, the applicant can contest the refusal of admission into the French territory within 48 hours. The appeal has suspensive effect. The Administrative Court must decide within 72 hours.[17]

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,[18] and no longer to the Administrative Court of Paris only, as was previously the case.

Anafé has denounced the illusory nature of the effectiveness of this suspensive appeal in 2017 report,[19] and the situation is still the same in 2019.

 

Legal assistance

 

There is no permanent legal adviser or NGO presence in the waiting zones; only Anafé 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, as well as outdated lists of lawyers available in different waiting zones.

A third person (lawyer or representative of an accredited NGO) can be present during the OFPRA interview;[20] and legal representatives shall be present for unaccompanied children. As stated in Border Procedure: Personal Interview, however, this possibility is rarely used in the border procedure.

Contrary to appeal procedures before the CNDA (see Regular Procedure: Legal Assistance) where 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 (see Judicial Review of the Detention Order). 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.[21]

Anafé 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.[22]



[1]  Article L.213-8 Ceseda.

[2] OFPRA, ‘Demander l’asile à la frontière’, 20 April 2016, available in French at: http://bit.ly/2D1RcpL.

[3]  Article L.213-2 Ceseda, as amended by Article 18 Law n. 2018-778 of 10 September 2018.

[4]  Article L.221-2 Ceseda.

[5] Articles L.221-3 and L.222-2 Ceseda.

[6]  Article L.222-2 Ceseda.

[7]  Article L.213-8-1 Ceseda.

[8] Article L.213-8-1 Ceseda.

[9]  Article R.213-5 Ceseda.

[10] Article L.213-8-1 Ceseda.

[11]  Article R.213-4 Ceseda.

[12] ECRE, Access to asylum and detention at France’s borders, June 2018, 21.

[13]  See e.g. Administrative Court of Marseille, Decision No 1704059, 7 June 2017; No 1704319, 16 June 2017. Contrast with Decision No 1706792, 3 October 2017, where the Court found no procedural irregularities.

[14] ECRE, Access to asylum and detention at France’s borders, June 2018, 21.

[15] OFPRA, Activity report 2018, 25

[16] Ibid, 22.

[17] Article L.213-9 Ceseda.

[18] Article R.351-8 CJA.

[19]  ANAFE, Privation de liberté en zone d’attente, les détenus face à la justice, 2017, available in French at : https://bit.ly/30RbYkt.

[20]  Article L.213-8-1 Ceseda.

[21]  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.

[22]  Anafé, Voyage au centre des zones d’attente, November 2016, 53.

 

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