Grounds for detention

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Pre-removal detention

Asylum seekers are not placed in administrative detention centres for the purpose of the asylum procedure.[1] Persons who claim asylum during their administrative detention 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 an imminent removal.[2]

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.[3]

Detention under the Dublin Regulation

Asylum seekers under the Dublin procedure can be placed in administrative detention with a view to the enforcement of their transfer once the transfer decision has been notified, where there is a “significant risk of absconding”.[4]

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.[5]

In response to the Court of Cassation ruling, the Ceseda was amended in March 2018 to define the following criteria for the existence of a “significant risk of absconding”, where an applicant:[6]

1. Has previously absconded from the Dublin procedure in another country;
2. Has received a rejection decision in the responsible Member State;
3. Has been found again on French territory following the execution of a transfer;
4. Has evaded the execution of a previous removal measure;
5. Refuses to be fingerprinted or deliberately alters his or her fingerprints;
6. Has falsified a document with the aim of staying on French territory;
7. Has concealed elements of his or her identity, route, family composition or previous asylum applications;
8. Does not benefit from material reception conditions and cannot prove his or her place of actual or permanent residence;
9. Cannot prove his or her place of residence after refusing a proposal for accommodation by OFII, or after abandoning his or her place of accommodation without legitimate reason;
10. Does not respond to requests from authorities without legitimate reason;
11. Has previously evaded a house arrest measure;
12. Has explicitly declared his or her intention not to comply with the Dublin procedure.

The law has gone 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. This has been applied a few hundred times since the reform.

5,160 asylum seekers were detained in view of their removal to another EU country under the Dublin procedure in 2019, up from 3,456 in 2018, 3,723 in 2017 and 2,208 in 2016.

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.[7] If a person makes an asylum application at the border, he or she is automatically maintained in the waiting zone for the duration of the border procedure.

[1]   Article L.554-1 Ceseda.

[2] Article L.556-1 Ceseda.

[3]  See e.g. Administrative Court of Lille, Decision No 1803225, 11 May 2018 (Côte d’Ivoire); Administrative Court of Nancy, Decision No 1800978, 27 April 2018 (Sudan); Administrative Court of Strasbourg, Decision Nos 1801908 and 1801984, 4 April 2018 (Dominican Republic); Administrative Court of Paris, Decision No 1800364/8, 11 January 2018 (Guinea).

[4]  Article 28(2) Dublin III Regulation.

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

[6]  Article L.551-1(2) Ceseda, inserted by Law n. 2018-187 of 20 March 2018.

[7]  Article L.221-1 Ceseda.