Author
The Prefecture is responsible for assessing alternatives to detention, which can be imposed by the courts if they consider that the prefecture’s assessment was wrong. The Ceseda lays down house arrest (assignation à résidence) as an alternative to administrative detention. This measure can take different forms:
- House arrest in the case of an absence of 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 the 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 on the medium or long term.
- House arrest as an alternative to administrative detention:[2]The Prefect can put those people 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 and who are accompanied by their 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 cancelled from the CESEDA since the new codification of 2021 [3].
The house arrest decision can last 6 months and can 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. This is only a possibility left to the discretion of the administration.
Instructions of the Ministry of Interior of 19 July 2016 and 20 November 2017 recommend Prefectures to largely resort to house arrest from the beginning of Dublin procedures, with a view to overcoming recurring difficulties in the implementation of transfers.[4] The instructions clarify that surveillance measures must accompany a house arrest order. In 2021, many Prefectures systematically continued to 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.
It is further possible to detain third-country nationals accompanied by minor children if they do not respect house arrest prescriptions.[5] It is also possible for the authorities to request the use of police forces to ensure the implementation of the 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 the French territory. This use of police forces 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.[6]
[1] Article L. 731-3 Ceseda.
[2] Article L. 731-1 Ceseda.
[3] Former Article L.562-2 Ceseda, not present in the new code.
[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] Article L.741-5 Ceseda.
[6] Article L.733-9 Ceseda.