FACTSHEET THE DETENTION OF MIGRANTS IN FRANCE

Transcription

1 POINT OF NO RETURN FACTSHEET: THE FUTILE THE DETENTION OF OF MIGRANTS UNRETURNABLE IN FRANCE MIGRANTS 1 FACTSHEET THE DETENTION OF MIGRANTS IN FRANCE 1. Legal framework and detention practices Detention under French law Administrative detention, a measure of freedom deprivation that keeps a foreigner held in an irregular situation before his forcible removal, is authorised and circumscribed by French law 1. In the course of the last decade, the legislation in France and other European countries has undergone numerous modifications towards greater restriction of the rights of foreigners. 2 Maximum length of detention In Metropolitan France, Detention [ ] is limited to the time strictly necessary to organise the removal and, except in some cases, cannot exceed 45 days 3 since the law of 16 June 2011, as against 32 days previously. The average length of detention has been 11.2 days since this law was enacted, and 9.7 days over the whole year However, this lengthening of the waiting period has not ensured efficacy, nor has it helped improve the conditions of recognition of his nationality by consular authorities. Individuals who could not be identified within 32 days have not been better identified since the law of 2011; consulates have simply extended the deadline for submitting their replies to let the French administration know if the migrant is of their nationality. Evolution of time limits for detention (days) Days Maximum number of days spent in detention Source: France terre d asile Intervention by multiple courts The French system subjects decisions on detention to two separate courts. When it comes to weighing the conformity of freedom deprivation against the fundamental rights of foreigners or 1 Articles L et suivants du CESEDA. 2 The laws of 26 November 2003 and 16 June 2011 reflect a tightening of administrative detention in France. 3

2 2 FACTSHEET: THE DETENTION OF MIGRANTS IN FRANCE the necessity of detention, a juge judiciaire, and specifically the liberty and custody judge (JLD) 4, is competent. The law of 2011 has extended the deadline for the first intervention by the JLD from 48 hours to five days. The administration can decide on its own to detain a foreigner for five days. If the removal does not occur during this period, the prefect has to request an extension from the judge, who must then order either the continuation of custody or the foreigner s release, regardless of the legality of the administrative removal measure. 5 A second intervention by the JLD is required after the expiry of the 20-day extension if the prefecture has failed to remove the foreigner and requests another extension of up to 20 days. Throughout the detention period, urgent release claims may also be referred to the JLD, on an ad hoc basis. 6 As far as the conformity with the law of administrative detention and removal measures is concerned, it is the administrative court 7 that is competent. Foreigners in detention have 48 hours to lodge an appeal against the removal measure provided they have not exceeded the appeal deadline and against the detention measure. The judge then delivers a ruling within 72 hours. Foreigners in detention thus often meet these two judges at different times during their custody. In practice, however, foreigners are frequently (in 25.3% of cases) removed within five days, without having had any access to a judge. 8 This usually happens because they have not benefited from a suspensive appeal. 9 A rising number of people in detention The number of people in detention has doubled since In 2011, at least 51,385 people were detained in administrative detention centres (CRA), of whom 24,286 were in metropolitan France and 27,099 in overseas territories. 2. Administrative detention centres A CRA is a controlled facility where the administration can detain, for a limited period and under judiciary control, foreigners who are subject to a removal order and cannot leave France immediately. 10 It was only after the decree of 19 March 2001 on CRAs that information was first released regarding these facilities and the authorised number of them. 11 Since 2005, the main 4 The liberty and custody judge (le juge des libertés et de la detention, JLD) is a judicial judge (juge judiciaire), guardian of the individual liberties according to the French constitution. This judge controls the judicial procedure (conditions of the migrant s arrest, custody and transfer to an immigrant detention center as well as the exercise of the migrant s rights to contact a lawyer, to communicate with people outside, to see a doctor, to receive administrative and legal help from an association, or to apply for asylum), and he or she determines whether or not to authorise the administration to confine the migrant in a detention center. 5 In France, two different courts intervene for migrants in detention. Their authority is separate and neither court examines what falls under the authority of the other. The 2011 law reversed the sequence of intervention by the two courts: it is now the administrative court first and then the judicial court. But this sequence is not compulsory, so it still happens that the judicial court authorises the detention of a migrant in whose case a removal decision will later be annulled by the administrative court. 6 Article L of the CESEDA. 7 The administrative court judges most disputes between individuals and the administration. Migrants in detention refer to the administrative court to request the annulment of administrative decisions for removal and detention. 8 Report on administrative detention centres and facilities, 2011, ASSFAM, Forum réfugiés Cosi, France terre d asile, La Cimade, Ordre de Malte France, 9 Some migrants benefit from a suspensive appeal (depending on the kind of removal measure and whether the time limit for the appeal is still available), in which case, if they make an appeal, they can t be removed before the administrative court has made its decision (the removal is delayed for few days) Pierre Bernard-Reymond, Immigration: la gestion des centres de rétention administrative peut encore être améliorée, information report n 516 ( ) written in the name of the Senate Financial Commission, registered July

3 FACTSHEET: THE DETENTION OF MIGRANTS IN FRANCE 3 Administative detention facilities in metropolitan France Source: Rapport 2012, centres et locaux de rétention administrative, ASSFAM, Forum réfugiés Cosi, France terre d asile, La Cimade, Ordre de Malte France regulations applicable to CRAs can be found in the Code de l entrée et du séjour des étrangers et du droit d asile (CESEDA). 12 There are currently 25 CRAs on French territory, as well as several other administrative detention premises, 13 providing a total capacity of about 1,800 places, including 144 overseas. 14 It should be underlined that the total capacity of CRAs in France increased substantially in the 2000 s, rising from 1,000 places in 2005 to 1,711 in The capacity of each CRA is limited by law to 140 places. In practice, however, some centres reach capacities well above this: for example, the CRA of Mesnil-Amelot, which has 240 places. Divided in two administratively distinct entities, these two CRAs are in fact located in the same building and share a single common entrance France s Code on the admission and residence of foreigners, and the right of asylum. 13 According to the public website detention premises are places of permanent or temporary detention, generally located in police stations. Foreigners cannot be detained there for longer than 48 hours before being transferred to an administration detention centre, save for exceptions. 14 See map above. 15 Centres de rétention administrative : à quoi bon?, radio program, France culture, 28 october 2011.

4 4 FACTSHEET: THE DETENTION OF MIGRANTS IN FRANCE Forum réfugiés Cosi A detention centre at Nice, France. In theory, the State guarantees certain standards for CRAs, 16 such as a minimum space of ten square metres per person, freely accessible sanitary equipment, food catering services, and so on. But in practice, material living conditions in CRAs are often ill-adapted to the situation of detained persons. Movement inside the living quarters is very limited owing to the lack of space and the small size of rooms. Facilities are often inadequate or defective (heating failure, lack of sanitation, and so on). Recreation and leisure facilities are sometimes used for other purposes, and rarely offer any leisure equipment. Access to the luggage storage room, the phone or other services is also extremely limited and may take several hours for detainees to obtain, often because of a lack of goodwill among police officers and administrative personnel at the centre. 17 Moreover, the facilities in CRAs are absolutely unsuitable for detainees with disabilities. 18 The conditions of detention for foreigners awaiting removal are among the most decried aspects of states practices in cases of deportation. It is generally during this phase that the most serious violations of the rights of aliens being deported are perpetrated. 19 Access to law by foreigners Detention ought not to violate the fundamental rights of detainees or their legal guarantees, as set out in a decision of the Constitutional Council on September 3, Article R of the CESEDA. 17 Report on administrative detention centres and facilities, 2010, p19. item/7869-rapport-de-2010-sur-la-retention-administrative-en-france 18 Report on administrative detention centres and facilities, 2010, p24. item/7869-rapport-de-2010-sur-la-retention-administrative-en-france 19 United Nations International Law Commission, 6th report on removal of foreigners, March 19, 2010, A/CN.4/ Décision n DC du 03 septembre 1986.

5 FACTSHEET: THE DETENTION OF MIGRANTS IN FRANCE 5 Right to information On their arrival in a CRA, foreigners are to be informed of their rights in a language they understand. They are to be told that they can ask at any time for the assistance of a translator, a counselor or a doctor, pursuant to article L of the CESEDA. Foreigners are also to be notified of the rights they may exercise with regard to claims of asylum. Rights of defence and right of appeal The person w ho is detained may have a lawyer, who is to be allowed to enter the detention centre at any time. They can also benefit from legal aid during their audiences before the judges in judiciaire and administrative courts. The JLD can only intervene after the fifth day of detention. Legal and social assistance 21 Pursuant to article R of the CESEDA, five NGOs (ASSFAM, Forum réfugiés, France terre d asile, La Cimade, Ordre de Malte France) are entitled to provide information and assistance on the exercise of the rights of aliens so as to allow their effective enjoyment. With this purpose, the association active in each centre organises help desks, and provides an information service. Control of detention facilities The law of 30 October 2007, supplemented by the decree of 12 March 2008, has introduced a Controller-General of Places of Deprivation of Liberty, who is independent and nominated for 6 years, and is in charge of supervising conditions of care and transfer of people deprived of liberty, in order to ensure that their fundamental rights are respected. Detained persons may write to the Controller-General by mail regarding any violation of their fundamental rights The public prosecutor, the liberty and custody judge, and any deputy or senator may also visit a CRA with full transparency. 3. Voluntary and forced return In principle, a foreign national under an obligation to leave French territory (OQTF) has 30 days to leave the country by their own means. However, the law foresees several circumstances in which the administration may refuse to grant any time for voluntary departure: 22 l If the foreigner s behaviour represents a threat to public order; l If the foreigner s application for a residence permit has been dismissed as manifestly unfounded or fraudulent; or l If there is a risk of escape. In practice, the administration makes extensive use of these possibilities to deny any delay in a voluntary departure. The type of decision that is most issued is the removal order without delay Pour permettre l exercice effectif de leurs droits par les étrangers maintenus dans un centre de rétention administrative, le ministre chargé de l immigration conclut une convention avec une ou plusieurs personnes morales ayant pour mission d informer les étrangers et de les aider à exercer leurs droits. A cette fin, la personne morale assure, dans chaque centre dans lequel elle est chargée d intervenir, des prestations d information, par l organisation de permanences et la mise à disposition de documentation. Ces prestations sont assurées par une seule personne morale par centre. Les étrangers retenus en bénéficient sans formalité dans les conditions prévues par le règlement intérieur. 22 Article L II of the CESEDA. 23 According to the law, which results from the Return Directive, the administration in priniple notifies removal decisions with 30 days for a voluntary return. But there are many exceptions that allow administration to refuse to grant this period. Consequently, removal decisions with no time for a voluntary return are the first kind of decisions removal to be notified.

6 6 FACTSHEET: THE DETENTION OF MIGRANTS IN FRANCE In 2011, 64,247 foreigners were removed from French territory. Of these removals: l l 32,912 were from metropolitan France. 15,840 (24.7% of all removals) were assisted returns from metropolitan France. In November 2006, the French government issued a circular which set up assisted return schemes allowing foreigners willing to return to their home country to have their travel expenses covered and to benefit from financial aid on their arrival. NOTE: During 2011, 56% of these voluntary returns involved Romanian or Bulgarian nationals, that is to say, EU citizens. l 48,407 (75.3% of all removals) were forcible removals from metropolitan France and overseas territories. l The overseas territories alone recorded 31,335 deportations in the course of A few years ago, quantified deportation targets 24 were adopted in metropolitan France. As a result, the number of deportation has risen markedly. 24 For several years, the Interior minister used to set an annual target for the number of removals by the administration and police services. During these years, we noticed that the number of removals was a little higher each year. This factsheet is published as a supplement to the report Point of no Return: the futile detention of unreturnable migrants and can be downloaded at It is a result of a collaboration between Flemish Refugee Action (Belgium), Detention Action (UK), France terre d asile (France), Menedék Hungarian Association for Migrants, and The European Council on Refugees and Exiles (ECRE). Editor: Els Keytsman, Kruidtuinstraat 75, 1210 Brussels. Vluchtelingenwerk Vlaanderen vzw (Flemish Refugee Action) Design: Louis Mackay/ Published: January 2014 Supported by the European Programme for integration and and Migration (EPIM), a collaborative initiative of the Network of European Foundations (NEF). Disclaimer: the sole responsibility for the content lies with the authors. The content may not necessarily reflect the positions of NEF, EPIM or the Partner Foundations.