Published on March 26th, 2018 | by Alexandra Katsarou0
SUMMARY: French Council of State- No 418319/1st of March 2018- Articles L.521-2/L.522-3 of the Administrative Code
Keywords: suspension of the execution of claimant’s obligation to leave the French territory- Article L. 521-2/ L.522-3 of the Administrative Code- rejection of claimants’ appeal
No of decision: 418319/1st of March 2018
Court: French Council of State
Claimants: Ms A…C…/ Mr B… D…
1)Article L. 521-2 of the Administrative Code
Being seized of a request justified by urgency, the judge hearing the application for interim measures may order any measures necessary to safeguard a fundamental freedom, if the exercise of one of the powers of a legal person governed by public law or a body governed by private law, constituted a serious and unlawful infringement. The judge hearing this application may reach a decision within 48 hours.
2)Article L. 522-3 of the Administrative Code
The judge hearing the application for interim measures may reject an application by reasoned order, without contradictory instructions or public hearing, as soon as the condition of urgency is not met or in case it appears that it does not fall under the jurisdiction of the Administrative Court. The judge of the Court of Appeal can take into consideration the evidence gathered by the judge of first instance concerning the written and the oral proceedings he-she has instituted.
The claimants requested that the judge of the Administrative Court of Nice order that the prefect of the Alpes-Maritimes suspend the execution of the measure which is taken against Mr B…D.. and which forces him to leave immediately the French territory, until they complete the formalities needed for their marriage to the Town Hall of Nice. By the order No 1800516 of the 8th of February 2018 the judge of the Administrative Court of Nice rejected their request. The claimants submitted an application to the Council of State referred on the basis of the Article L. 521-2 of the Administrative Code and they argued that: 1)This decision is vitiating the legal aid that is guaranteed by the interim measures, 2) the condition of urgency is fulfilled since Mr B..D.. is under the threat of an enforced execution of the obligation to leave the French territory, 3) this decision constitutes an obviously unlawful violation of the freedom of marriage, 4) the judge of the Administrative Court has been misdirected concerning the first decision he reached because the right of marriage does not depend on the regularity of the residence or a clean criminal record. Consequently the claimants request that the Court 1) cancel the order of the 8th February 2018, 2) grant the conclusions of the first instance, 3) charge the State a sum of 3,000 euro.
The Council of State decided that, since the second claimant was condemned to two years in prison accused of theft and aggression, his planned marriage was intended to erase the aforementioned actions and present them as a mistake of youth. Furthermore, the claimants can marry in Algeria, or after the return of the second claimant in France, as soon as he will have obtained the authorisation of a regular residence on the French territory. Consequently, since none of the conditions of Article L. 521-2 of the Administrative Code (urgency- seriousness) are met, the appeal ( all the claims of the claimants included) is dismissed.
Conseil d’ Etat here….