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Immigration Detention in France: Longer, More Widespread, and Harder to Contest

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KEY CONCERNS

• New legal provisions double the maximum length of immigration detention to 90 days and allow for the re-detention of people shortly after being released from a previous stay in detention.

• The new provisions fail to prohibit the detention of accompanied children, contrary to recommendations from national and international human rights bodies.

• A new asylum law adopted in 2018 lacks important safeguards for people seeking protection, which observers fear could lead to widespread detention of asylum seekers.

• Increased recourse to videoconferencing presents serious obstacles to mounting effective detention appeals.

• In the overseas territory of Mayotte, which deports thousands of people annually, there are exceptions in the application of immigration law, limiting procedural safeguards and leaving people vulnerable to abusive detention conditions.

1.INTRODUCTION

France has one of Europe’s oldest—and largest—administrative immigration detention regimes. Since 1981, the year it adopted its first law explicitly providing for immigration detention, the country has passed some 30 immigration laws. In 2017, the country placed 46,857 people in immigration detention, 42 percent of whom were held in overseas territories (by way of comparison, in the United Kingdom, during the year ending in March 2018, approximately 29,000 people “entered detention”).

Detainees in France spent on average 12.8 days in detention, far below the 45 days legal limit in place at that time. France operates 24 long-term immigration detention centres, euphemistically labelled centres de retention administrative (“administrative retention centres”), which have a total capacity of 1,543 beds. The country also operates 26 short-term administrative detention facilities called locaux de retention administrative. In 2018, the Interior Ministry announced plans to boost bed space in CRAs by 450 during 2019.

Although European Union (EU) law allows member states to detain migrants for up to 18 months for deportation purposes, France retained—until recently—one of the lowest limits among EU member states (along with Iceland [42 days] and Spain [60 days]). In 2018, however, the situation changed significantly—prompted by Europe's "migration crisis"—with the adoption of controversial new legislation which, inter alia, doubles the detention limit to 90 days and reduces the time frame to apply for asylum from 120 days to 90 days.

Many civil society organisations and national human rights institutions challenged the new law, with some critics calling it the Code de la honte (“code of shame”).
The French ombudsman said, “Contrary to the discourse that everything should be done in favour of asylum seekers, they are in fact badly treated by this project.” According to the ombudsman, the accelerated asylum procedures will “impose impossible deadlines on asylum seekers … which risks causing asylum seekers to lose their rights to appeal.”

Another recently adopted law, the March 2018 asylum bill, also came under sharp criticism because of fears that it may lead to widespread detention of asylum seekers who are awaiting transfer to another EU country under the Dublin III procedure. The law, which allows for the detention of people who have not yet been served an expulsion order, represents a major departure from previous French asylum protection policies.
French NGOs are present on a daily basis inside the centres de retention administrative (CRAs) to provide legal and other forms of advice to detainees. Each year, they publish joint authoritative analyses of laws, policies, and practices, as well as detailed information on every detention facility. While having a permanent civil society presence in immigration detention centres is not wholly unique to France (in Lebanon, for instance, Caritas has had an office in the country’s main immigration detention centre), the French system seems to stand apart from others in the breadth of involvement of NGOs inside its 24 long-term facilities. As a result, there is a tremendous amount of readily available information about operations at detention centres, which is exceedingly rare.

In the French overseas territory of Mayotte (part of the Comoros archipelago in the Indian Ocean), the French Constitution and successive immigration laws authorise important derogations to the application of immigration law. Local authorities expelled some 60 people a day from Mayotte during 2016 (with most denied access to a lawyer or judge before their expulsion) in defiance of the French ombudsman’s recommendations as well as the European Court of Human rights’ jurisprudence on the right to access an effective remedy.Although it has a population of less than 250,000, Mayotte manages to deport nearly 20,000 people each year: 17,934 in 2017 and 19,488 in 2016.
In many countries the language of immigration detention can appear to be opaque or misleading.
In the case of France, it crafted the terminology rétention administrative (“administrative retention”) as early as 1981, when it adopted its first immigration detention provisions. While some countries, including Argentina, have adopted this language, French-speaking countries like Belgium, Canada, and Switzerland continue to employ the word détention.
A joint ministerial audit in 2005 found that this language created a “paradoxical” situation because “the alien placed in retention remains a free person, against whom no charge has been laid; he is only momentarily ‘retained,’ for the time required for organising his return. The whole paradox of retention lies in this principle. Before the judge of liberty and detention (JLD) the procedure is civil even if it borrows aspects of criminal law, in particular because the JLD can challenge the conditions of the arrest and the regularity of the custody.” While many leading French advocates and academics have argued that detention centres should be called "camps" and denounced the use of euphemistic language when referring to places of deprivation of liberty, French civil society for the most part seems not to have specifically challenged the use of the word rétention. However, the impact of this “paradoxical” phrasing is often clear in public and official discourse.
For instance, during the debate over the 2018 legislation, the Minister of Justice misleadingly characterised the detention of families as allowing “children to be in an administrative centre with their parents.” Civil society protest against immigration detention is common. Non-violent silence protests (cercles de silences) have been regularly held in many French cities since 2011. Many NGOs have argued that detention is a disproportionate response to irregular migration and that it largely fails in its stated purpose of enabling removal since less than half of the country's detainees are expelled following detention (40 percent of immigration detainees in mainland France were expelled in 2017, 42 percent of whom were expelled to another EU country). In contrast, officials bemoan that the high proportion of expulsion orders cancelled by judges creates obstacles, even though these judgements are based on respect for the rule of law.