General

France

Country Report: General Last updated: 24/05/24

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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.

In 2022, 657 third-country nationals lodged a first asylum application while in administrative detention,[1] i.e. less than 2% of persons administratively detained. 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 arrested and placed in administrative detention. This can happen when they have started the registration process of their asylum claim and have then been arrested pending the official confirmation of this registration. Indeed, in the Ile de France region, these procedures can take several weeks while waiting for a registered address through an association or for the appointment at the Prefecture, before a temporary residence permit is issued (see section on Registration). These asylum seekers do not always have the necessary documents proving their pending registration with them when they get arrested. As a result, a removal decision can be taken, the person is placed in administrative detention and their claim may be processed from there. In practice, certain Administrative Courts order the release of such asylum seekers upon presentation of proof of steps taken to have their claim registered,[2] but this is far from automatic.

There are 25 CRA and 22 administrative detention places (LRA)[3] on French territory (including in overseas departments).[4] As of 2021, the capacity of CRA amounts to a total of 1,762 places in 2021, up from 1,707 in 2020, but the number of places in CRA available in overseas territories was not known at the time of writing. The capacity of LRA is 128 places. Moreover, the French government announced in 2020 the creation of 4 new CRA, which would bring the capacity of CRA to a total of 2,200 places. These new CRA were not opened at the end of 2022. Article R. 744-5 Ceseda foresees that each centre’s capacity should not exceed 140 places.[5] 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.

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.[6] The Administrative Court of Nice held that this form of detention was lawful insofar as it did not exceed 4 hours, after which individuals would have to be directed to a formal “waiting zone”.[7] The Council of State also upheld this form of detention as lawful during the period necessary for the examination of the situation of persons crossing the border, subject to judicial control.[8] Following a decision of the Prefect to forbid access of NGOs (i.e. access to medical care and legal assistance) to the place of detention in Menton in September 2020, the Administrative Court of Nice ruled in November 2020 this decision was illegal.[9] Local authorities attempted to issue a new decision on 29 December 2020 upholding the ban on NGOs but with some adjustments for the decision to be considered legal.[10] However, the Administrative Court of Nice ruled again in March 2021 that this decision was illegal under European law and French Constitution.[11]

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.[12] 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. Foreign nationals who introduced a claim from administrative detention and who are released are given an asylum claim certificate and their claim will be normally processed.[13] In practice, this assessment always leads the Prefects to consider that the applications must always be examined under the accelerated detention procedure.[14]

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.[15] 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 given its final decision on the case, in which case the Court rules there is no more case to adjudicate upon and does not look at substance. Consequently, the asylum seeker in detention does not benefit from an effective remedy nor from an in-depth examination of their claim.

 

 

 

[1] Ministry of Interior, ‘Demandes d’asile’, 26 January 2023, available in French at: https://bit.ly/3KokHDR

[2] See e.g. Administrative Court of Paris, 6 July 2021 decision NO. 20PA01400; Administrative Court of Lille, Decision No 1804330, 7 June 2018; Administrative Court of Marseille, Decision No 1703152, 18 May 2017.

[3] The total number of LRA is not stable and permanent as these detention facilities can be created upon a decision of the Prefect.

[4] Assemblée nationale, ‘Rapport sur le projet de loi de finances 2021’, 8 October 2020, available in French at: https://bit.ly/3u6oZoy, 33.

[5] Article R. 552-1 Ceseda.

[6] 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.

[7] Administrative Court of Nice, Order No 1702161, 8 June 2017.

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

[9] Administrative Court of Nice, Order No 2004690, 30 November 2020, available in French at: https://bit.ly/2NVcNqH.

[10] Franceinfo, ‘Frontière italienne : les associations d’aide aux migrants ne pourront pas visiter le local de mise à l’abri à Menton’, 7 January 2021, available at: https://bit.ly/3pB1sZk.

[11] Administrative Court of Nice, Order No 2101086, 4 March 2021, available in French at: https://bit.ly/2OnsN4D.

[12] Article, L.754-3 Ceseda.

[13] Decree n. 2015-1166 of 21 September 2015.

[14] Practice-informed observation of Forum Réfugiés also based on exchanges with other professionals, January 2023.

[15] Article L. 531-29 Ceseda.

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