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Changes to the legal framework: new law of 26 January 2024

After a decision by the Constitutional Council on January 25, 2024, partially censoring the text definitively adopted by the national Assembly on December 19, 2023, the law ‘for controlled immigration and successful integration’ was promulgated on January 26, 2024, and published in the official journal the following day.[1]

Alongside the abundant measures concerning the right of residence, the return and the administrative detention, the text includes several articles modifying the legal framework of the right to asylum, on many aspects.

As the various measures of this law enter into force at the earliest on 28 January 2024 or many of them at a later stage, they will not be discussed in detail in the sections of the report. However, a presentation of the main changes related to asylum and presented below.

Regarding the asylum procedure:

• Access to the procedure: Access to the asylum procedure on the territory is modified with the creation of Pôles France Asile which will replace the current asylum seekers office called “Guichet unique pour demandeur d’asile” (GUDA) after a pilot phase limited to a few territories.[2] This change involves the presence of a counter of the French office for the protection of refugees and stateless persons (OFPRA), which will be added to those of the prefecture and the French office of immigration and integration (OFII). An OFPRA agent will be responsible for lodging the request and collecting the asylum request story which will therefore no longer be expressed through a written form. However, the asylum seeker can always supplement their request by sending additional information before the interview to OFPRA. For regular procedure only, the interview will not take place before a minimum period of 21 days after registration of the asylum request. For accelerated procedure and in cases that could lead to inadmissibility, OFPRA may summon asylum seekers for an interview or make a decision of inadmissibility without minimum delay. These provisions will be progressively implemented and deployed throughout the territory after the establishment of three pilot sites (Toulouse, Cergy Pontoise, Metz).
• Inadmissibility: inadmissibility may apply to any applicant benefiting from protection equivalent to refugee status (and no longer only formal refugee status) in a third country.[3] The protection must, as already provided in the law, be effective and the applicant must be legally admissible in this State. OFPRA may use a means of audiovisual communication from the Pôles France Asile if it intends to make a decision of inadmissibility due to the protection received by the applicant in another State. This will be progressively implemented and deployed throughout the territory after the establishment of three pilot sites (Toulouse, Cergy Pontoise, Metz).
• Appeals: The most significant developments in terms of procedure concern the appeal phase before the National Court of Asylum (CNDA). The principle will henceforth be that of a single-judge judgment for all types of procedure,[4] reversing the former principle that cases should be dealt with by 3-judge panels, and territorial chambers of the CNDA may be created in certain territories.[5] The implementation of these provisions will be specified by a decree not yet published as of early April 2024. In the context of video hearings, the judge, on their own initiative or at the request of the applicant, may suspend the hearing when the quality of the transmission does not allow the applicant or their counsel to present their explanations in good conditions.[6] These provisions came into force on January 28, 2024, the day after the publication of the law in the Official Journal.
• Appeal of a Dublin transfer decision: The appeal deadline to contest the transfer decision is 7 days (formerly 15 days), including in the case of house arrest (formerly 48 hours). The judge rules within 15 days.[7] This provision will come into force on a date fixed by decree in the Council of State, and at the latest the first day of the seventh month following that of publication of this law (August 1, 2024). It applies to the contestation of decisions taken from their entry into force.

Regarding reception conditions:

• Refusal and withdrawal of material reception conditions (MRC): The law establishes an unprecedented link between reception and the asylum procedure: a person who leaves their accommodation without legitimate reason, in addition to losing their reception conditions as before, will see their asylum application closed by OFPRA.[8] These provisions came into force on January 28, 2024, the day after the publication of the law in the Official Journal. The material reception conditions (MRC) are not much impacted in practice, as the main provisions in this area were censored or limited by the Constitutional Council, and the others have a rather limited scope. The legislator had wanted to make the hypotheses of withdrawal or refusal of MRC automatic, but the Constitutional Council clarified the provision by highlighting that an individual examination is necessary (in accordance with European law).[9] However, as part of an overhaul of administrative litigation proposed elsewhere in the law, a specific procedural framework for litigation relating to decisions to refuse or withdraw MRCs was created.[10] These provisions came into force on January 28, 2024, the day after the publication of the law in the Official Journal.
• End of the right to remain: The right to remain in the territory of asylum seekers who are the subject of a CNDA order ends on the day this CNDA order is signed (and no longer on the day it is notified). In the event that an obligation to leave French territory (OQTF) is taken by the administrative authorities after the order has been signed, it can however only be executed once the CNDA order has been notified.[11] These provisions came into force on January 28, 2024, the day after the publication of the law in the Official Journal.
• Return: The length time limit for rejected asylum applications to appeal against obligations to leave French territory (OQTF) is doubled by the new law (from 15 days to 1 month),[12] but the overall legal framework for removal and detention is otherwise strongly hardened.

Regarding detention:

• New detention grounds for all applicants: The new law allows for the detention of asylum seekers presenting a threat to public order (at any time during the procedure) or expressing their wish to request asylum outside the prefecture, for example during an arrest, and presenting a risk of absconding.[13] The law defines this risk of absconding by including 12 hypotheses.[14] The implementation of these provisions will be specified by a decree not yet published when this report was written. Potentially complex asylum applications could thus be processed within the deteriorate procedural framework of detention.
• Extended risks of detention of asylum applicants under the Dublin procedure: The law extends the possibilities of detention of asylum seekers under the Dublin procedure before the transfer decision. The 11 reasons already provided for by law qualifying a significant risk of a person absconding under the Dublin procedure are maintained with a modification of one point concerning the concealment of information on identity, which now also concerns elements relating to the migratory route, family composition and prior asylum applications. Furthermore, a new reason (12°) is created concerning the refusal to submit to fingerprinting and their voluntary alteration due to crossing or irregular presence in the territory.[15] These provisions came into force on January 28, 2024, the day after the publication of the law in the Official Journal. Moreover, the qualification of “significant risk of absconding” which allows the prefecture to detain an asylum seeker within the framework of the Dublin procedure even before a transfer is decided, can apply as soon as he is presented to the prefecture for registration of a first request for asylum. The implementation of these provisions will be specified by a decree not yet published as of early April 2024.

Regarding content of international protection:

• Residence documents: Those who obtain protection under asylum, and especially their family members who are not themselves protected, could be affected by certain measures which broaden the possibilities of withdrawing or renewing residence documents.

Overview of the main changes since the previous report update

The previous update of the report was published in May 2023.

International protection

• Key asylum statistics: In 2023, 167,432 persons were registered as asylum seekers by the Ministry of Interior (compared to 155,773 in 2022), of which 145,522 as first applicants. OFPRA, with whom applications are lodged, reported a total of about 142,500 asylum seekers (compared to 131,254 in 2022). According to the Ministry of Interior, the nationality breakdown of people registered in GUDA for the first 10 countries of origin in 2023 was as follows: Afghanistan, Guinea, Türkiye, Ivory Coast, Bangladesh, DR Congo, Georgia, Sudan, Albania, Sri Lanka. The overall protection rate stood at 31.4% in first instance (OFPRA) and 20.5% at appeal stage (CNDA). A total of 66,358 persons (including minors) were protected in 2023 (refugee status or subsidiary protection). The average first-instance processing time for all procedures at OFPRA was 126 days in 2023, compared to 158 days in 2022. The average processing time for the CNDA was 6 months and 3 days. At the end of 2023, 36,917 of the asylum seekers were in a Dublin procedure (29,446 at the end of 2022) and 16,184 had been re-channelled in 2023 from a Dublin procedure registered before 2023 to a regular or accelerated procedure. In 2023, 3,191 persons were resettled according to the Ministry of Interior (see Statistics).

Asylum procedure

• Access to the territory: According to a report of the Court of Auditors published in January 2024, about 89,000 refusals of entry were notified at French borders in 2023 (including internal borders). Reports of people being refused entry without their protection needs being taken into account at the Italian border persisted in 2023. Since July 2023, a ‘border force’ has been implemented at the French-Italian border (reinforced in September 2023) to increase the number of police officers available in this area. In a report published in May 2023, several NGOs documented the increase of police resources at the French – Spanish border, illegal control practices and expeditious procedures which do not allow individual situations and the right to asylum to be taken into account. Following a CJEU decision of September 2023, the Council of State cancelled the article of law which allowed entry refusals to be made in all circumstances and without any distinction in the context of the reestablishment of internal border controls in a decision of February 2024. According to the UK authorities, attempts to cross the Channel to join the United Kingdom reached a number of 29,437 in 2023, compared to 45,774 persons in 2022 (– 36%).
• Decisions ‘by order’, i.e. without a hearing, in appeal: In 2023, the CNDA took 34,807 decisions in collegial function, down from 38,320 collegial decisions in 2022. It further took 31,550 single-judge decisions (i.e., 55% of total decisions) with 10,397 decisions following a hearing and 21,153 by order, compared to 18,390 in 2022 (10,432 following a hearing and 18,390 by order).
• Dublin transfers to Italy: Following the decision of the Italian government of December 2022 to suspend incoming transfer to its country, Administrative Courts and then Administrative Courts of Appeal generally concluded that there are systemic deficiencies in the country in order to overturn transfer decisions in 2023.

Reception conditions

• Access to reception conditions: The number of asylum seekers without material reception conditions is an increasingly important and worrying issue. Comparing the number of asylum applications pending at the end of 2023 according to Eurostat (146,175) and the number of asylum seekers benefitting from reception conditions at this date (102,196 persons in total at the end of December 2023 according to OFII), this means more than 40,000 asylum seekers did not have reception conditions in France as of December 2023 (see Access and forms of reception conditions).
• Access to accommodation: At the end of 2023, 108,814 places in accommodation centres dedicated to asylum seekers were funded by the ministry of Interior. However, at the end of 2023, 18.6% of the places occupied in accommodation centres (excluding overseas and CAES) were occupied by individuals who were no longer authorised to occupy these places such as rejected asylum applicants or beneficiaries of international protection after the period of authorised presence. Moreover, 2.65% of the places were not occupied (e.g., due to works, delays in orientation etc.). In 2023, the number of asylum seekers accommodated remained far below the number of persons registering an application. At the end of the year, the Ministry of Interior stated that 59% of asylum seekers eligible to material reception conditions were effectively accommodated compared to 58% at the end of 2022. If we add asylum seekers who do not benefit from reception conditions, we can consider that about 85,000 asylum seekers were not accommodated in dedicated places in France (excluding overseas) as of the end of 2023 (see Housing).
• Freedom of movement and national distribution of asylum seekers: In 2021 and 2022, out of 48,230 people who were offered an orientation outside Ile-de-France (Paris region) based on national reception scheme established in 2021, 12,124 refused and 5,704 who accepted did not go to the designated accommodation, leading in total to a deprivation of reception conditions for 17,828 people. Data for 2023 is not available at the time of this report. In 2023, a new accommodation system with 500 places called ‘SAS d’accueil’ régionaux’ has been set up to allow the accommodation of homeless people evacuated from Paris to other regions. It is not specifically dedicated to asylum seekers, however in practice, many asylum seekers are accommodated there (see Freedom of movement).
• Accommodation – informal camps: In 2023, 6,443 persons were evacuated from camps in Paris, and partially accommodated through operations carried out by the authorities. In Calais region, hundreds of migrants were still living in makeshift camps in the area throughout 2023. In 2023 (until December), 16,041 persons were evacuated, sometimes forcibly, by local and regional authorities. In Mayotte, hundreds of asylum seekers and refugees had set up camp at the Cavani stadium in Mamoudzou. 308 refugees were evacuated on February 25, 2024 to be transferred to the mainland, with 410 people remaining there (see Asylum seekers left without accommodation).

Detention of asylum seekers

• Detention statistics: In 2023, 798 third-country nationals lodged a first asylum application while already in administrative detention (see Detention).
• Detention conditions: At the beginning of summer 2023, the General Controller of places of deprivation of liberty (CGLPL) indicated, after having visited all places of detention in recent years, that the conditions, in the majority of cases, “seriously undermine the dignity and fundamental rights of those detained”, which lead her to conclude that “there is an urgent need to profoundly modify the current approach to the care of foreigners placed in CRA” (see Detention conditions).

Content of international protection

• Civil status: As of 30 September 2023, the average waiting time for the establishment and issuance of civil status documents for BIPs was 14.5 months, following the trend of steady increase in recent years (10.3 months in 2022, 8 months in 2021), and around 60,000 people were waiting for this procedure to be concluded at the end of 2023. OFPRA reconstructed nearly 64,900 civil status documents in 2023, compared to 43,550 in 2022, but the number of beneficiaries of international protection has also increased significantly in recent years. While waiting for this document, refugees cannot be issued their residence document and are simply given a document called “certificate of extension of instruction” (Attestation de prolongation d’instruction, API) by the prefectures which is not considered sufficient by many actors to access rights or services necessary for integration (bank account, housing, employment, etc.). In March 2024, however, an administrative court considered that it was not necessary to oblige OFPRA to reduce its deadlines because the provisional certificate of family composition issued by OFPRA and valid until the issuance civil status documents must, in principle, allow access to all social rights (see Residence permit).
• Inclusion: At the end of 2023, there were 10,655 places in temporary accommodation centres (Centres provisoires d’hébergement, CPH) dedicated to BIPs. The AGIR programme, launched in 2022 and that aims to provide global support for refugee integration concerning housing, employment and benefits, continued its deployment: 52 departments were to be covered by the end of 2023. As of 31 August 2023, 40 programmes were operational, making it possible to support more than 8,300 people. The programme should generalised to the entire national territory in 2024.

Temporary protection

The information given hereafter constitute a short summary of the 2023 Annex on Temporary Protection, for further information, see Annex on Temporary Protection.

• Key temporary protection statistics: in its 2023 preliminary statistics, the Government mentions 62,438 active temporary protection residence permits held by Ukrainians at the end of 2023. This figure a priori excludes children, since residence permits are only issued to adults. According to OFII, which is responsible for the distribution of the financial allowance, 64,622 beneficiaries of temporary protection (including children) benefitted from the dedicated financial assistance at the end of December 2023 (compared to 81,885 at the end of 2022). However, this figure only concerns those eligible for the financial allowance, and therefore excludes all those who now have sufficient resources. Furthermore, significant drops in the number of beneficiaries were noted during the renewal periods for residence permits for temporary protection (valid only for 6 months) – the OFII only pays the allowance to holders of these permits. Arrivals of Russian nationals are not monitored, however, as in 2022, first time asylum applications by Russian nationals increased significantly, rising up to 4,125 in 2023, compared to 2,600 in 2022 and 970 in 2021.

Temporary protection procedure

• Registration and renewal of residence permit: French legislation still foresees that the residence permit for temporary protection only lasts for and thus must be renewed every six months. According to information provided in Parliament, of the 39,952 temporary residence permits delivered between 1^st March and 12^th April 2022, 34,164 were renewed 6 months later, i.e., over 85%. However, there is no direct data available for renewals in 2023. Moreover, significant drops in the number of beneficiaries of the financial allowance for beneficiaries of temporary protection were noted during the renewal periods for residence permits for temporary protection.

Content of temporary protection

• Access to asylum: According to Eurostat, 3,430 asylum applications were registered by Ukrainians nationals in 2023, compared to 1,770 in 2022. According to the CNDA’s 2023 activity report, the Court took 311 decisions on appeal regarding Ukrainian nationals asking for international protection (118 in 2022). After examination, 177 decisions granted international protection (46 recognised refugee status, and 131 subsidiary protection).
• Housing: to avoid using the accommodation scheme foreseen for asylum seekers, in 2022 the State thus set up a reception and support system specifically dedicated to the persons displaced from Ukraine. This collective accommodation park (holiday centres, hotels, etc.), financed in 2022 and 2023, was made up of 13,187 places at the end of 2023. In addition, there are about 10,000 people accommodated in so-called “citizen” accommodation. As of December 2023, 10,187 beneficiaries of temporary protection were staying in reception centres, as opposed to 28,000 in private accommodation. In 2022, the State decided to provide financial support to individuals having accommodated beneficiaries of temporary protection, under certain conditions. Nearly 3,000 households had benefited from this aid by the end of 2023.
• Access to the labour market: As of September 1, 2023, 17,438 people born in Ukraine had worked at least one hour in the previous month. Of these, 26% had done so in the hotel and restaurant sector. On the same date, there were 16,364 beneficiaries of temporary protection registered with the Unemployment Office (former Pôle Emploi, now France Travail). Among Ukrainians with access to the labour market (not specifically temporary protection beneficiaries), 44% were beneficiaries of a permanent contract, 47% of a fixed-term contract and 7% of a temporary contract.

[1] Loi n° 2024-42 du 26 janvier 2024 pour contrôler l’immigration, améliorer l’intégration, NOR : IOMV2236472L, available in French at : https://bit.ly/3J9cT74. The main provisions of the law, with details of the entry into force for each of them, are summarized (in French) by Forum Réfugiés in a PDF document for free download available here: https://bit.ly/49pm2D6.

[2] Articles L.121-17, L.521-6 CESEDA.

[3] Article L. 531-32 CESEDA.

[4] Article L.131-7, L.532-6 CESEDA.

[5] Article L.131-3 CESEDA.

[6] Article L.532-13 CESEDA.

[7] Article L. 572-4 CESEDA.

[8] Article L.531-36, L.531-37, L.531-38 CESEDA.

[9] Article L. 551-5, L.551-6 CESEDA.

[10] Article L. 551-5, L. 551-6 CESEDA.

[11] Article L. 542-1 CESEDA.

[12] Article L.614-1 CESEDA.

[13] Article L. 523-1 CESEDA.

[14] Article L.523-1 – 523-5 CESEDA.

[15] Article L. 751-10 CESEDA.