Institute of Global Law

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 Conseil d’Etat.

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 of marriage.

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 treatment.

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.