Author
French law does not allow detention of asylum seekers for the purpose of the asylum procedure. The asylum seekers covered in this section are mainly the ones who have lodged a request for asylum while in an administrative detention centre (centre de rétention administrative, CRA) awaiting removal, as well as those detained pending a transfer under the Dublin Regulation. The decision ordering the detention of asylum seekers is always taken by the Prefecture.
In 2023, 798 third-country nationals lodged a first asylum application while already in administrative detention, [1] i.e., less than 2% of the total of persons administratively detained in 2022 (45,565, no data available for 2023). Moreover, some rejected asylum seekers asked for a subsequent examination of their asylum claim while being detained (no statistics available on subsequent applications in detention since 2020).
At the same time, newly arrived asylum seekers can be placed in administrative detention, when they have started their registration process but are arrested while official confirmation of registration is still pending, since these procedures can sometimes take several weeks.
There are 26 CRA[2] and 27 administrative detention places (LRA)[3] on French territory (including in overseas departments).[4] The capacity of CRA amounts to a total of 1,946 places at the end of 2022, including 229 places in overseas territories. The capacity of LRA is 154 places[5]. Moreover, the French government announced in October 2023 that they will bring the capacity of CRA to a total of 3,000 places in 2027 and the capacity of LRA to a total of 174 places at the end of 2024.[6]
Article R. 744-5 Ceseda foresees that each centre’s capacity should not exceed 140 places.[7] The maximum capacities for these centres are not reached in mainland France at one point in time but the turnover is very high. However, even if the capacities are not exceeded, when the centres are almost full, this causes a lack of privacy which can create tensions.
The law provides that a foreign national who applies for asylum from detention in a CRA can only be maintained in detention if the Prefecture states in a written and motivated decision that the asylum claim has only been introduced to prevent a notified or imminent order of removal.[8] The decision to maintain an asylum seeker in administrative detention after an asylum claim can be challenged before administrative courts within 48 hours, and has suspensive effect on the return procedure of the foreign nationals who introduced a claim from administrative detention. In principle, they are then released, given an asylum claim certificate and their claim will be processed normally.[9] In practice, this assessment always leads the Prefects to consider that the applications must always be examined under the accelerated detention procedure.[10]
For people seeking asylum in administrative detention, it is difficult to prepare such an application in a place of confinement. There is very limited time to develop the reasons for the claim, stressful conditions prior to the interview with OFPRA, difficulties to locate and gather the necessary evidence, etc. In addition, for claims channelled into the accelerated procedure, OFPRA has 96 hours to examine the application.[11] This extremely brief period of time drastically reduces the chances of benefiting from an in-depth examination of the claim. Therefore, only the CNDA could provide an in-depth examination of the claim. However, when the asylum seeker’s detention is confirmed by the administrative court, they will not benefit from a suspensive effect of their appeal of a negative decision given by OFPRA before the CNDA. They can thus be removed to their country of origin even though the CNDA has not issued its final decision on the case. Should the person be removed before the decision is issued, the Court then rules there is no more case to adjudicate upon and does not look at substance.[12] Consequently, the asylum seeker in detention does not benefit from an effective remedy nor from an in-depth examination of their claim.
Detention at the border
Also, in the context of the border procedure, asylum seekers are held in “waiting zones” while awaiting a decision on their application for an authorisation to enter the territory on asylum grounds. These are distinguished from CRA but also classified as places of deprivation of liberty, as asylum seekers cannot leave these areas (except to voluntarily return to their country or be admitted into a third country) until an authorisation to let them enter French territory or a decision to return them is taken.
However, in the context of border controls in the area of Alpes-Maritimes throughout recent years and including in 2022 the Border Police has detained newly arrived asylum seekers without formal order in a “temporary detention zone” (zone de rétention provisoire) made up of prefabricated containers in the premises of the Menton Border Police, and established following an informal decision of the Prefect of Alpes-Maritimes.[13]
Overseas France: In Mayotte, many foreigners coming from Comoros are arrested and detained when they arrive on the island,. They are often quickly returned, with limited possibilities to exercise their rights, including to seek asylum (in 2022, only 3,019 out of the 26,020 people detained met Solidarité Mayotte, the association approved to provide legal laid there).[14]
[1] Ministry of Interior, Chiffres clés – Les demandes d’asile, 25 January 2024, available in French at: https://bit.ly/4al6CBc.
[2] The total number of LRA is not stable and permanent as these detention facilities can be created upon a decision of the Prefect.
[3] Forum Réfugiés et al, Rapport annuel sur la rétention administrative, 2022, available in French at: https://bit.ly/43C9ZkG.
[4] Cour des Comptes, La politique de lutte contre l’immigration irréguière, January 2024, available in French at: https://bit.ly/3xksFsW.
[5] Forum Réfugiés et al, Rapport annuel sur la rétention administrative, 2022, available in French at: https://bit.ly/43C9ZkG.
[6] Ministry of Interior, ‘Augmentation de la capacité des centres de rétention administrative : 3000 places d’ici 2027’, Press release, available in French at : https://bit.ly/4aC1I2f.
[7] Article R. 552-1 Ceseda.
[8] Article, L.754-3 Ceseda.
[9] Decree n. 2015-1166 of 21 September 2015.
[10] Practice-informed observation of Forum Réfugiés also based on exchanges with other professionals, January 2023.
[11] Article L. 531-29 Ceseda.
[12] Practice-informed observations by Forum Réfugiés and partners.
[13] Anafé et al., Menton : des personnes exilées détenues en toute illégalité à la frontière, 7 June 2017, available in French at: http://bit.ly/2Dnp7pb.
[14] Forum Réfugiés et al, Rapport annuel sur la rétention administrative, 2022, available in French at: https://bit.ly/43C9ZkG.