On 4 December 2004, the Conseil constitutionnel endorsed legislation on the
right of asylum. However, the Court stipulated the following
conditions: (1) In determining applications for asylum the Office for Refugees
and Stateless Persons must take into account the personal circumstances of the
individual asylum seeker in the context of the political situation in the region
of the country where he/she comes from. The Office must also take into account
whether the state itself is responsible for any alleged persecution. (2) Secondly,
in order to ensure the impartiality and independence of members of the Commission
of Recourse for Refugees (a division of the French judiciary), members’
terms of office must be determined by order, having first been approved by the
On 26 November 2004, the Act relating to immigration control, foreigners’
right of abode in France and nationality was adopted. But on 30 November,
this Act was partially quashed by the Conseil constitutionnel. The
Conseil declared, among other things, that the provisions making the
repatriation costs payable by the person accommodating the foreigner did not
comply with the principle of equality of citizens before public contributions.
Furthermore, the Conseil constitutionnel considered that the provisions
relating to marriages infringed the constitutional principle of the freedom
On 18 November 2004, the Assemblée nationale adopted the government’s
proposal to modify the 1950 Act on the right of asylum. The
new text reduces the length of the procedure to two months, provides that all
requests will be examined by the OFPRA (the French Office for the Protection
of Refugees and Stateless Persons), and adopts new concepts such as “internal
asylum” and “safe country of origin.” This Act became effective
on 1 January 2005.
On 4 October 2004, the Conseil d’Etat accepted an appeal made by the
Minister of the Interior by putting an end to the suspension of the deportation
order of an Imam. In spite of two notes produced by the French security
branch of the police force concerning the Salafist group to which this Imam
belonged and on the links he had with Afghan, Yemenite and Chechen terrorist
groups, the lower court had refused to confirm the deportation order. The CE
cancelled this decision on the grounds that the judge had wrongly held that
the evidence was not likely to prove the truth of the allegations.
On 6 January 2004, the Criminal Section of the Cour de cassation held that
the new Immigration, Right of Abode and Nationality 26 November 2003 Act could
be applied retroactively when the new measures are more favourable
to the individual in question. A ban from entry and stay in France imposed on
a foreigner under previous legislation was thus withdrawn by virtue of the new
Act, which provides for exemption measures in favour of sick foreigners who
would suffer exceptionally serious consequences were they not granted medical
On 19 November, the reform of the law of asylum (contained
in the French 25 July 1952 Act), was adopted by Parliament and will come into
force on 1 January 2004. No amendments were made to the text adopted by the
Upper House of the French Parliament on 24 October. The text introduces a unified
procedure. All applications must now be referred to the French Office for
the Protection of Refugees and Stateless People, l’OFPRA (“Office
français de protection des réfugiés et des apatrides”).
As far as substantive law is concerned, the reform introduces three new concepts:
1) The concept of subsidiary protection – to replace the former “asile
territorial” – for foreigners fearing threats in their country
but falling outside the definition of refugee under the Geneva Convention.
This subsidiary protection is granted for one (renewable) year, provided that
there is no suspicion of a serious infringement or risk for the public order.
2) The concept of internal asylum, allowing OFPRA to dismiss applications where
the applicant may find refuge in another part of his country of origin, thanks
to an international or regional organization. 3) The concept of safe country
of origin, used as a justification for dismissing applications from asylum
seekers coming from safe countries, i.e. countries deemed to respect individual
freedoms and human rights. Until a common EU list is made available, a list
of these safe countries will be drawn up by OFPRA.
Following debates in Parliament (see legal news of October 2003) immigration
law has been reformed by the new 26 November 2003 Act (“loi
relative à la maîtrise de l'immigration”).
On 24 October 2003, the Upper House of the French Parliament (the Senate)
adopted a text relating to asylum seekers (voted by the lower
House on 5 June 2003). The text, amending the French 25 July 1952 Act,
introduces a unified procedure for all asylum seekers. As far as substantive
law is concerned, it introduces the concept of “safe country of origin” – used
as a justification for dismissing applications from asylum seekers coming
from such “safe countries”.
The French Minister of the Interior, Nicolas Sarkozy, has presented Parliament
a text reforming numerous aspects of French immigration law.
The text was voted on by the Lower House of the French Parliament (the National
Assembly) on 10 July 2003 and by the upper House on 16 October 2003. Changes
relate to a) the prevention of illegal immigration; b) the integration of foreigners
legally in France; and c) the deportation of foreigners.