Judicial review of the detention order

France

Country Report: Judicial review of the detention order Last updated: 30/11/20

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Foreigners held in CRA are informed about the reasons for their placement in these centres through the notification of the administrative decision to detain them with a view to their removal. This notification must state clearly which removal ground serves as a basis for the detention and why the removal cannot be implemented immediately. This document also mentions the legal remedies available to challenge this decision.

Foreigners also receive a notification of all their rights including the right to apply for asylum and their right to linguistic and legal support in submitting their claim.[1] According to the law,[2] this notification should be made (orally) to the foreigner in a language he or she understands. In practice, this is done in most of the cases but not always. Detainees are also notified that their asylum claim will be inadmissible if it is submitted 5 days after their rights have been notified. The claim is deemed to be admissible after 5 days only if it is based on elements or events occurred after these 5 days. This condition is not applicable to foreigners from safe countries of origin; their claim will be deemed inadmissible in any case when it is submitted five days after they have had their rights notified.[3]

The law foresees a judicial review of the lawfulness of the administrative detention for all foreigners. The legality of detention falls under the dual control of the Administrative Court and the Civil Court. Each court examines specific and complementary aspects of the procedures. It is quite difficult to assert if there is a judicial review of the lawfulness of administrative detention, as the Administrative Court reviews the lawfulness of the removal order and house arrest if this measure has been taken by the Prefect before the placement in detention. The Civil Court i.e. Judge of Freedoms and Detention (JLD) intervenes two days after this placement.

 

Administrative Court: Legality of administrative decisions of removal and house arrest

 

The Administrative Court is seized by a foreigner (asylum seeker if relevant) who challenges the legality of the decisions taken by the Prefect, i.e. the measures of removal and/or house arrest.[4] Removal orders and house arrest can be challenged within a period of 48 hours. This period starts from the notification of the measure, and not from the arrival at the administrative detention centre, if this notification is concomitant to notification of the measure of placement in administrative detention. The administrative judge can, for example, verify that the Prefect has not committed a gross error of appreciation by ordering the removal of the territory when the foreigner is entitled to stay on the French territory. The court basically has to make a decision on the reasons why a foreigner has been placed in detention.

Moreover, the French Constitutional Court ruled on 4 October 2019 that the administrative court is competent to assess the legality of a decision to maintain a person in administrative detention if, based on a motivated and written decision, the Prefect considers that the asylum claim has only been lodged to prevent a notified or imminent order of removal.[5]

The judge can also verify if the Prefect’s decision of house arrest does not contravene the best interests of the foreigner and if the measure is proportionate. The administrative court must make a decision within 72 hours.[6]

The Administrative Court can, only in cases of an asylum claim, control the lawfulness of the detention. If an asylum claim is submitted during detention, it is possible to challenge the decision of placement in detention within 48 hours after the notification of the detention. The claimant has to prove his or her claim has not been submitted in order to make the removal measure fail. The court has to make a decision within 72 hours after the claim has been lodged.[7]

In several Prefectures, the asylum seeker is placed in detention on a Friday, to avoid the possibility for him to access legal assistance during the weekend, and to carry out the transfer within 48 hours. In these frequent cases, there is no effective appeal for those people.

 

Judge of Freedoms and Detention (JLD): Conformity of deprivation of liberty

 

The JLD, whose competences are set out in Article 66 of the Constitution, is seized by the Prefect at the end of the 2 days of administrative detention in order to authorise a prolongation after having examined the lawfulness of the administrative detention. As stated by the Constitutional Court in its ruling of 4 October 2019, however, the competence of the administrative court to assess the legality of an order to maintain people who ask for asylum in detention does not violate the French Constitution.

As regards the mandate of the JLD, he or she will check whether the police have respected the procedure and the rights of the person during the arrest, the legality of the police custody and the placement into administrative detention. The judge will also check whether the custody is compatible with the personal situation of the detainee.[8] The JLD intervenes a second time after 28 days of detention if the person is still detained and has not been removed. This judge can also be seized at any moment by the person detained in administrative detention centres but these requests have to be very solidly argued (serious health problems for instance) and are hardly considered admissible.[9] Appeals lodged against the measure of removal or house arrest have suspensive effect over its execution.[10] It also possible for the foreigner to seize the JLD at any moment upon a motivated request during the first 48 hours.[11]

The law enables then to challenge the removal decision from the moment of its notification. It implies it will be impossible, theoretically, to remove someone before he or she has been in a position to seize the judge, either administrative or civil.

Since the end of 2017, there have been cases of court hearings conducted by videoconference from the CRA of Toulouse, whereas this was already the case in other CRA. These have been denounced by NGOs on the ground that individuals are not provided with the minimum guarantees set out in the law, namely the accessibility of the hearing to the public.[12] In Mesnil-Amelot near Paris, on the other hand, the JLD hearings take place in an annex of the Court (TGI) located in the CRA. Annexes of the competent courts are also established in Coquelles and Marseille for detention hearings.

As regards detention in the context of the Border Procedure, the JLD is competent to rule on the extension of the stay of foreigners in the waiting zone beyond the initial 4 days. The stay cannot be extended by more than 8 days,[13] renewable once.[14] The JLD must rule “within twenty-four hours of submission of the case, or if necessary, within forty-eight hours of this, after a hearing with the interested party or their lawyer if they have one.”[15] The administrative authority must make a request to the JLD to extend custody in the waiting zone and must explain the reasons for this (impossible to return the foreign national due to lack of identity documents, pending asylum application, etc.)

In Roissy, hearings take place in an annex of the Court (TGI) of Bobigny since the end of 2017. NGOs also noted that this annex undermines the public character of hearings given the obstacles to physically accessing the waiting zone of Roissy, as well as the right to legal representation insofar as lawyers have no access to phone, fax or Wi-Fi to receive urgent documents if needed.[16]



[1]  Article L.551-3 Ceseda; Article R.553-11 Ceseda.

[2]  Articles L.551-2, L.111-7 and L.111-8 Ceseda.

[3]  Article L.551-3 Ceseda.

[4]  Article L.512-1 Ceseda.

[5]  Constitutional Court, Decision 2019-807, 4 October 2019, available in French at: https://bit.ly/2UGAELy

[6]  Ibid.

[7]  Article L.556-1 Ceseda.

[8]  Article L.552-1 Ceseda.

[9]  Article R.552-17 Ceseda.

[10]  Article L.512-3 Ceseda.

[11]  Articles R.552-10-1 and R.552-17 Ceseda.

[12] Syndicat des Avocats de France, ‘La justice par visioconférence : des audiences illégales au sein même des centres de rétention’, 18 January 2018, available in French at: http://bit.ly/2Dyo5di.

[13]  Article L.222-1 Ceseda.

[14]  Article L222-2 Ceseda.

[15]  Article L.222-3 Ceseda.

[16] ECRE, Access to asylum and detention at France’s borders, June 2018, 9.

 

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