As the purpose of this meeting is to exchange
knowledge, experiences and information among the judges from different
countries, I chose to focus my intervention on three topics that are
very concerning for French administrative judges nowadays.
introduction, let me describe roughly the French procedure in front of
administrative judges that applies to asylum seekers and immigrants and
give you a few figures.
Figures: The number of
asylum seekers is decreasing rapidly in France since 2004: only 26.269
persons asked for the status in 2006, and 28% were granted the status.
Most people came form Turkey, Serbia, Haiti, RDC, Sri Lanka, Russia,
Armenia, China, Algeria, Ivory Coast. 100 000 refugees are currently
living in France.
Procedure: The Supreme Court is controlling the
application of the law and not the facts of the decisions made by the
CRR (a specialised court) who already controlled the decisions made by
the OFPRA (an administrative organ). Judges of first instance deal with
asylum matters when they control return decisions and removal orders and
the claimant argues article 3 of the European Convention on Human
Rights (ECHR) has been infringed.
A new procedure involving the
administrative judge is currently being discussed by the Parliament
since the European Court of Human Right (ECHR) ruled on April 26th 2007
that the lack of a remedy with automatic suspensive effect against an
order refusing an asylum seeker held in an airport waiting area entry to
French territory and which require his removal violates article 13 of
the Convention (ECHR, April 26th 2007, Gebremedhin v. France).
Figures : 3,2 millions of foreigners in 2003, 5,6% of the total population;
do they come from? 38% from the EU, 36% from Maghreb, especially from
Portugal 550.000, Morocco 500.000, Algeria 471.000, Italy 212.000, Spain
175.000, Turkey 170.000, Tunisia 160.000;
Reasons for entry: 64% for family reunification 11,9% for working reasons, and 6,5% as refugees;
the administrative judge is in charge of controlling the legality of
return decisions and removal orders. Since January 1st 2007, the
administration (préfet) is globalising three decisions in one: the
refusal of granting the right to stay in France, the return decisions
within one month, and the decision defining the country of return. Those
decisions can be disputed within one month in front of an
administrative court. The court has to make a decision within three
months, after a written procedure and a hearing session. Foreigners
staying illegally in France and who have not applied for a stay or
residence card can also receive a removal order. This decision can be
disputed within 48 hours. The court has then 72 hours to come up with a
I would now like to draw your attention on three issues
that are problematic to the French administrative judges. Some are
related to the procedure whereas some concern the interpretation of the
CONGESTION OF ADMINISTRATIVE COURTS
Constitutional Court decided on July 28th 1989(2) that only
administrative judges could control decisions concerning the entrance
and the stay of foreigners in France, because of the principle of
separation of powers.
As I explained in my introduction,
administrative courts deal with a very large amount of decisions related
to immigration. The consequences of the recent reforms (four laws
within the last four years), passed in a political context of fear of
immigration, are obvious for administrative judges: those cases
represent an average of 25% of our activity, and even 50% in courts
located in Paris and its suburbs and in the South East of France
(Marseille, Nice, Montpellier). The appeals are also numerous but there
is no specific time for the judge to come up with a decision.
Administrative judges are therefore looking for solutions to relieve the courts of first instance.
first solution would be to develop a “pre- jurisdictional litigations”.
Those mechanisms that prevented litigations were removed in the 1990’s
by the Parliament or the judge himself:
-the case-law decided not to
apply the preliminary adversarial principle to return decisions and
-a law of August 24th 1993 suppressed the so-called
“stay and residence commissions”(4), made up of both administrative
judges and judicial authorities that were created in 1990 in order to
receive claims of foreigners before the seizure of an administrative
court; they were replaced by a commisison with a limited advisory power,
that the administration can decide whether to consult or not.
personally believe it would be appropriate to develop pre-jurisdictional
litigations. It would be interesting to learn form other European
country’s experience on that matter.
Another solution would be
to develop procedures involving a single judge instead of corporatism.
In 2006, French administrative judges have argued to make sure cases
concerning foreigners would be judged by a chamber (i.e. three judges
and a “government commissioner”(5) in charge of giving an impartial
legal point of view on each case). The only exception concerns removal
The French system has tried to find another solution
by increasing the categories of cases that can be ruled without
hearings. A single senior judge can decide to treat a case with a simple
order(6) when it seems obvious that its arguments can be rejected or
when they are not precise enough. This system has been criticized a lot
since foreigners’ cases are very often written in poor French and
without the help of a lawyer.
second issue I would like to draw your attention on is the question of
temporary custody and its duration. I believe this issue will be
discussed later this year by our working group when we will look at the
EU directive proposal on common standards and procedures for returning
illegally staying third-country nationals.
The French Parliament
reacted very strongly to the directive proposal to set a six-month term
to the temporary custody, especially since the EU-Commission has
specified that this term should be a goal to meet and not only a limit.
The latest version of article 14 of the directive, as discussed by the
Council under the Finnish presidency, is setting a minimum time of 4
month and a maximum time of 8 months.
It seems that France has a
liberal approach of this matter compared to other EU countries(7). The
temporary custody had a maximum term of 12 days in 1998 (2 days decided
by the administration and 10 extra days if the judicial authority
believes it is necessary) and the law n°2003-1119 of November 26th 2003,
that raised a lot of controversy, extended it to 32 days, which is
considered long enough to make the removal order effective (creation of a
consular let-pass and material organisation of the removal).The
administration believes that a foreigner who has not been removed after
this period of time will never be removed.
FRENCH CASE LAW AND ARTICLE 8 OF THE EUROPEAN CONVENTION ON HUMAN RIGHTS
The third and last topic I would like to tackle is Article 8 of the ECHR and its interpretation by French administrative judges.
the administration is about to deny a foreigner the right to stay in
France, it has to take into account everyone’s right to respect for his
private and family life(8). This means, of course, that there is room
for a large discretionary power.
The French administrative
Supreme Court has tried to specify some criteria in order to reduce the
room for arbitrariness. Even though every situation remains specific
(and case law can vary a lot even among the same court), there are three
main observations that can be made:
-The fact that someone still
has family in his/her native country will be considered unfavourable by
the judge in the application of Article 8.
-The Supreme Court
considers that the length and the stability of a foreigner’s
relationship should take into account the years spent together in France
as well as in the original country(9).
-The French judges have
protected family life much better than private life. Single people with
no children have a very little chance to benefit from Article 8’s
protection even tough they have lived in France for many years and have
developed relationships here. This interpretation of Article 8 could
seem opposite to the European Court of Human Right’s recent case law on
that matter. In the case of Üner v. the Netherlands decision(10), the
ECHR ruled that “As Article 8 also protects the right to establish and
develop relationships with other human beings and the outside world (see
Pretty v. the United Kingdom, no. 2346/02, § 61, ECHR 2002-III) and can
sometimes embrace aspects of an individual's social identity (see
Mikulić v. Croatia, no. 53176/99, § 53, ECHR 2002-I), it must be
accepted that the totality of social ties between settled migrants and
the community in which they are living constitute part of the concept of
“private life” within the meaning of Article 8”.
legislator has also tried to reduce room for interpretation of the
administration and judges in the application of Article 8. The
principles of Article 8 were first translated into French law in
1998(11) and modified in 2006(12). As it stands now, the rule is that
any foreigner should be given the right to stay legally in France if he
or she fulfils several conditions:
-he or she can not live in polygamy;
or she can not apply family reunification (which is determined by
severe criteria such as minimum wage, minimum footage of the apartment);
or her personal and family life has too be strong. This criterion is
being measured by the length, the intensity and the stability of the
bonds, by his or -her financial resources, by his or her integration in
the French society, and by the nature of the bonds kept in his or her
This legislation raises two difficulties:
-some of them seem to be more political than legal;(13)
-those criteria seem to be less protective than Article 8 of ECHR.
it seems that this law did not reach its goal, since it ended up giving
more discretional power to the administration and creating therefore
more disputes in front of administrative courts.
(1)My colleague J. Krulic will expose the main aspects of our case-law in the field of asylum.
(2)Decision DC n°89-26, July 28th 1989, « Joxe law» : « S'agissant de
par une autorité exerçant le pouvoir exécutif ou par un de ses agents
de prérogatives de puissance publique, les recours tendant à
l'annulation des décisions administratives relatives à l'entrée et au
séjour en France des étrangers relèvent de la compétence de la
juridiction administrative ».
(3)Conseil d’Etat, April 19th 1991, Préfet de police c/ M.Demi, n°120435
(4)« Commissions de séjour »
(5)« Commissaire du gouvernement »
R 222-1 of the administrative justice code: the last amendment was made
on December 23rd, 2006 by a decree whereas the Constitutional court has
ruled in a decision n°72-75 of December 21st 1972 that the adversarial
principle could only be organized by the Parliament.
in Spain, 60 in Italy and Portugal, 6 months in Austria, Czech Republic,
Slovakia and Slovenia, 8 months in Belgium, 12 months in Poland,
Hungary and Lithuania, 18 months in Germany and 20 months in Latvia.
There is no maximal term in the UK, Denmark, Estonia, Finland, Greece,
Ireland, the Netherlands and Sweden.
(8)Conseil d’Etat, April 10th 1992, Marzini, n°120573
(9)Conseil d’Etat, February 24th 2006, Iswahyudi, n°257927
(10)ECHR, Üner versus the Netherlands, case n°46410/99
(11)Law nº 2006-911, July 24th 2006
(12)See Article L.313-11-7° of the « Code de l’entrée et du séjour des étrangers et du droit d’asile »
(13)See comments of the Constitutional Court and the Administrative Supreme Court on the July 24th 2006 Law on immigration (nº