Grounds for detention

Author

Forum Réfugiés Visit Website

As of 2024, this will be affected by the provisions of the new asylum law: see Changes to the legal framework: new law of 26 January 2024.

Pre-removal detention

Asylum seekers are not placed in administrative detention centres for the purpose of the asylum procedure. Persons who claim asylum during their administrative detention for the purpose of removal can only be maintained in detention (maintien en rétention) if, based on a motivated and written decision, the Prefect considers that the claim aims solely to avoid imminent removal.[1]

On several occasions, Administrative Courts have clarified that, where the person has made references to a risk of persecution or harm upon return to the country of origin, an intention to apply for asylum solely to avoid imminent removal cannot be inferred from the fact that the person failed to register an asylum application prior to being placed in detention.[2]

At the same time, newly arrived asylum seekers are sometimes 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,[3] but this is far from automatic.

Overseas France: The main difference of legislation in overseas territories is that the appeal against return decisions is not suspensive (suspensive effect can be requested).[4]

Detention under the Dublin Regulation

As of 2024, this will be affected by the provisions of the new asylum law: see Changes to the legal framework: new law of 26 January 2024.

Asylum seekers under the Dublin procedure can be placed in administrative detention to enforce their transfer once the transfer decision has been notified, where there is a “significant risk of absconding”.[5] In line with the CJEU’s ruling in Al Chodor, the Court of Cassation clarified on 27 September 2017 that the absence of a legislative provision setting out the objective criteria for determining the existence of a “significant risk of absconding”, specific to the Dublin system, precluded the applicability of detention for the purpose of carrying out a Dublin transfer.[6]

In response to this ruling, the Ceseda was amended in March 2018 to include the following criteria to determine the existence of a “significant risk of absconding”, where an applicant:[7]

• Has previously absconded from the Dublin procedure in another country;
• Has received a rejection decision in the responsible Member State;
• Has been found again on French territory following the execution of a transfer;
• Has evaded the execution of a previous removal measure;
• Has falsified a document with the aim of staying on French territory;
• Has concealed elements of their identity, route, family composition or previous asylum applications;
• Does not benefit from material reception conditions and cannot prove their place of actual or permanent residence;
• Cannot prove their place of residence after refusing a proposal for accommodation by OFII, or after abandoning their place of accommodation without legitimate reason;
• Does not respond to requests from authorities without legitimate reason;
• Has previously evaded a house arrest measure;
• Has explicitly declared their intention not to comply with the Dublin procedure.

The law went beyond the limits set by the Court of Cassation insofar as detention may apply before the transfer decision. Asylum seekers under the Dublin: Procedure can thus be placed in detention during the procedure of determination of the responsible State.

2,264 asylum seekers were detained in view of their removal to another EU country under the Dublin procedure in 2022, compared to 3,384 in 2021. Data for 2023 is not yet available.

Detention at the border

Persons entering by train, boat or airplane and refused entry into the territory can be placed in waiting zones strictly for the time necessary for their departure.[8] If a person makes an asylum application at the border, they are automatically maintained in the waiting zone for the duration of the border procedure.

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.[9] 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”.[10] 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.[11] However, the Prefect’s decision to forbid access of NGOs (i.e., access to medical care and legal assistance) to the place of detention in Menton in September 2020, was ruled illegal by the Administrative Court of Nice in November 2020.[12] 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.[13] However, the Administrative Court of Nice ruled again in March 2021 that this decision was illegal under European law and the French Constitution.[14]

^{[1] Article L. 754-3 Ceseda.}

^{[2] See e.g. Administrative Court of Nice, Decision No 2102005, 15 April 2021; Administrative Court of Nice, Decision No 2103174, 15 June 2021; Administrative Court of Nice, Decision No 2104929, 28 September 2021; Administrative Court of Lyon, Decision No 2110022-2110152, 29 December 2021; Administrative Court of Montpellier, Decision No 2200239, 25 January 2022; Administrative Court of Appeal of Lyon, Decision No 22LY01895, 7 July 2022 .}

^{[3] 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.}

^{[4] Articles L.651-1 to 656-2 Ceseda.}

^{[5] Article 28(2) Dublin III Regulation.}

^{[6] Court of Cassation, Decision No 1130, 27 September 2017. See also Court of Cassation, Decision No 17-14866, 7 February 2018.}

^{[7] Article L.751-10 Ceseda.}

^{[8] Article L. 341-1 Ceseda.}

^{[9] 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.}

^{[10]Administrative Court of Nice, Order No 1702161, 8 June 2017.}

^{[11] Council of State, Order No 411575, 5 July 2017.}

^{[12] Administrative Court of Nice, Order No 2004690, 30 November 2020, available in French at: https://bit.ly/2NVcNqH.}

^{[13] 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.}

^{[14] Administrative Court of Nice, Order No 2101086, 4 March 2021, available in French at: https://bit.ly/2OnsN4D.}