Author
The Prefecture is responsible for assessing alternatives to detention, which can also be imposed by the courts if they consider the prefecture’s assessment was wrong. The Ceseda lays down house arrest (assignation à résidence) as the only alternative to administrative detention. This measure can take different forms:
- House arrest where there is no reasonable prospects of removal:[1] the law foresees house arrest for a maximum period of six months (renewable once or several times, up to a total limit of one year) when “the foreigner can justify being unable to leave French territory or can neither go back to his country of origin, nor travel to any other country” and that as a result, the execution of the removal measure is compromised in medium or long term.
- House arrest as an alternative to administrative detention: the Prefect can put persons who can produce representation guarantees and whose removal is postponed only for technical reasons (absence of identification, of travel documents, or of means of transport) under house arrest for a period of 45 days, renewable once. When foreigners subjected to a return decision, accompanied by minor children, do not have a stable address (decent housing within legal conditions), it is possible to envisage house arrest in hotel-like facilities.
- House arrest with electronic monitoring for parents of minor children residing in France for 45 days. This measure is not implemented as far as we are aware. It seems to have been taken out of the CESEDA since the new codification of 2021.[2]
House arrest can be decided for up to 6 months and be renewed once for the same period. It has to be motivated. The Prefecture is also allowed to keep the passport or identity document of the asylum seeker.
The law does not foresee any obligation to prove the impossibility to set up alternative measures before deciding to detain third-country nationals. If the person can present guarantees of representation and unless proved to the contrary, house arrest should be given priority but a necessity and proportionality test is not really implemented.[3] This is only a possibility left to the discretion of the administration.
Despite previous ministerial instructions to the contrary,[4] in 2023 many Prefectures continued to systematically impose house arrest as soon as asylum seekers are placed in the Dublin procedure (see Dublin: Procedure), without conducting an individualised assessment to establish whether an alternative to detention is required.[5]
It is further possible to detain third-country nationals accompanied by minor children if they do not respect house arrest prescriptions.[6] It is also possible for the authorities to request the use of police force to ensure implementation of a house arrest order and to visit the third-country national in order to place him or her in a detention centre or to remove him or her from French territory. This use of police force has to be approved by the Judge of Freedoms and Detention (juge des libertés et de la detention). The judge has to make a motivated decision within 24 hours after a request.[7]
Finally, in cases where alternatives to detention are implemented (persons under house arrest), the key question of the exercise of rights of these persons is still to be dealt with. In fact, persons put under house arrest have neither access to information and free administrative and legal assistance by a specialised association, nor formalised social support and free health care.
[1] Article L. 751-6 Ceseda.
[2] Former Article L.562-2 Ceseda, not present in the new code.
[3] Practice-informed observation by Forum Réfugiés and partners, January 2023.
[4] Ministry of Interior, Instruction NOR: INTV1618837J of 19 July 2016 relating to the application of the Dublin III Regulation – Resort to house arrest and administrative detention in the context of execution of transfer decisions, 4; Instruction NOR: INT/V/17/30666/J of 20 November 2017 on the objectives and priorities in the fight against irregular immigration.
[5] Practice-informed observations by Forum Réfugiés and partners.
[6] Article L.741-5 Ceseda.
[7] Article L. 733-9 Ceseda.