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*Law of Aliens

Published on October 1st, 2017 | by Alexandra Katsarou

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SUMMARY: French Constitutional Court 2016-580- Conformity of Article L.522.1 of the Code of Entry and Residence of Aliens and the Right to Asylum with the Constitution -QPC

Keywords: priority question of constitutionality- infringement of the right to an effective legal remedy- violation of individual liberty- failure in «absolute urgency» definition/provision of a guarantee impending the immediate implementation of an expulsion decision-Article L.522.1 of the Code of Entry and Residence of Aliens and the Right to Asylum-Article 2 and 16 of the Declaration of Human and Civil Rights of 1789- the Court rejected the complaint submitted by the claimant-the disputed provision has been declared to be in conformity with the Constitution

No of Decision: 2016-580/5 of October 2016

 Court: French Constitutional Court

Claimant: M. Nabil F.

Legal Framework:

1)Article L. 522.1 of the Code of Entry and Residence of Aliens and the Right to Asylum

«Except of the cases of absolute urgency, an expulsion may be ordered only in the following conditions:

1) The foreigner must be notified in advance under conditions predicted by a decree of State Council

2) The foreigner should be heard by a commission, which is assembled under the request of the administrative authority and is composed of:

A) The president of the Tribunal District Court of the administrative center, or a judge delegated by him

B) A magistrate consisted of the general assembly of the Tribunal District Court of the administrative center

C) An administrative tribunal advisor

2) Article 2 of the Declaration of Human and Civil Rights of 1789

«The aim of every political association is the preservation of all the natural and fundamental human rights. These rights are freedom, property, safety and resistance to oppression. »

3) Article 16 of the Declaration of Human and Civil Rights of 1789

«Any society, in which the guarantee of rights is not secured or the separation of authorities is not determined has no Constitution. »

 

Factual Framework:

 The Council of State has submitted a priority question of constitutionality, which has been judged by the Constitutional Court. This question has been raised for the purpose of challenging the constitutional regularity of aliens’ expulsions, which took place concerning article L.522.1 of the Code of Entry and Residence of Aliens and the Right to Asylum. In particular, the claimant estimates that the fact that a foreigner is evicted from the french territory under the condition of absolute urgency, without having the chance to refer his-her claim to a judge before the execution of this measure, infringes articles 16 and 2 of the Declaration of Human and Civil Rights of 1789. The claimant maintain that in that way the right to an effective legal remedy and the individual liberty are violating. Furthermore, the fact that there is a lack of proper definition ,as far as the concept of absolute urgency and the provision of a guarantee impending the immediate implementation of an expulsion decision are concerned, leads to a further infringement of the rights mentioned above.

Decision:

The Court maintained that according to article 2 of the Declaration of Human and Civil Rights of 1789 the individual liberty is guaranteed and every ignorance of it is in conformity with the Constitution only if it is justified by the public interest and if it is operating in an adequate and proportionate way. Furthermore, concerning article 16 of the same Declaration, the right to an effective legal remedy is guaranteed too.

With regard to article 34 of the Constitution, the law stipulates the provisions concerning the fundamental public rights and liberties. As a result it is incumbent upon the legislator to ensure the conciliation between the prevention of offenses and the infringement of rights and liberties justified by the public order on one hand and the exercise of these constitutional rights, the liberties mentioned above included, on the other.

Concerning article L.522-1 of the Code of Entry and Residence of Aliens and the Right to Asylum, the expulsion of an alien may be operated only in the event that he-she is previously notified and  he-she is going to be heard by the commission mentioned in the paragraph 2 of same article. However, in case of absolute urgency, due to the fact that there is immediate need of isolating a foreigner, who constitutes a menace for the French territory, the administrative authority is obliged to summon the alien before the Commission pronounces his-her expulsion. The disputed provisions do not deprive the person concerned of the possibility to appeal against the decision of his-hers expulsion to the Administrative Court. In particular, this action takes place in front of the judge of expedited matters, who may suspend the execution of the expulsion order, or take all the measures needed in order to ensure the fundamental freedom.

Finally, the Court claimed that the absence of a time extension between the announcement of an alien’s  expulsion and the execution of this measure does not lead to the disputed provisions. The combination of articles L 513-2 and L.523-2 of the Code of Entry and Residence of Aliens and the Right to Asylum stipulates that in case of challenging a decision determining the country of return, it is the administrative judge who ensures the conformity with the prohibition of returning an alien «to a country, if he-she declares that his-her life is threatened, or he-she is exposed to treatment opposite to the stipulations of article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms of 4 of November 1950».

Consequently, the Court reached the decision that the claimant’s complaint must be rejected and the disputed provision («except of the cases of absolute urgency») stipulated in the first paragraph of  article L.522-1 of the Code of Entry and Residence of Aliens and the Right to Asylum must be declared to be in conformity with the Constitution.

Conseil Constitutionnel here…





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