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Decision no. 2011-120 QPC of 8 April 2011

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Mr Ismaël A [Appeal to the National Court of Asylum]

On 9 February 2011 the Constitutional Council, pursuant to Article 61-1 of the Constitution, received an application for a priority preliminary ruling on the issue of constitutionality from the Cour de Cassation (first civil chamber, decree no. 188 of 9 February 2011) raised by Mr Ismaël A., regarding the compatibility of Articles L. 551-1, L. 552-1, L. 741-4 and L. 742-6 of the Code on the Entry and Residence of Foreigners and on the Right of Asylum with the rights and freedoms guaranteed by the Constitution.

THE CONSTITUTIONAL COUNCIL,

Having regard to the Constitution;

Having regard to Ordinance no. 58-1067 of 7 November 1958 as amended, concerning the basic law on the Constitutional Council;

Having regard to the Code on the Entry and Residence of Foreigners and on the Right of Asylum;

Having regard to Law no. 93-1027 of 24 August 1993 on the management of immigration and the conditions governing the entry, acceptance and residence of foreigners in France, along with decision no. 93-325 DC of the Constitutional Council of 13 August 1993;

Having regard to Law no. 2003-1119 of 26 November 2003 on the management of immigration and the residence of foreigners in France and on nationality, along with decision no. 2003-484 DC of the Constitutional Council of 20 November 2003;

Having regard to Law no. 2003-1176 of 10 December 2003 amending Law no. 52-893 of 25 July 1952 on the right of asylum, along with decision no. 2003-485 DC of the Constitutional Council of 4 December 2003;

Having regard to Law no. 2006-911 of 24 July 2006 on immigration and integration;

Having regard to Law no. 2007-1631 of 20 November 2007 on the management of immigration, integration and asylum;

Having regard to the Regulation of 4 February 2010 on the procedure applicable before the Constitutional Council with respect to applications for priority preliminary rulings on the issue of constitutionality;

Having regard to the observations on behalf of the applicants by Esq. Gaëlle Le Strat, Attorney at the Rennes Bar, registered on 24 February 2011;

Having regard to the observations of the Prime Minister, registered on 24 February 2011;

Having regard to the observations of the intervener association La Cimade, registered on 8 March 2011;

Having regard to the documents produced and appended to the case files;

Having heard Esq. Le Strat for the applicant, Esq. Patrice Spinosi, attorney at the Conseil d'État and the Cour de cassation, for La Cimade and Mr. Pottier, appointed by the Prime Minister, at the public hearing of 22 March 2011;

Having heard the Rapporteur;

1. Considering that Article L. 551-1 of the Code on the Entry and Residence of Foreigners and on the Right of Asylum provides: "The detention of a stranger on premises not falling under the administration of the prison system may be ordered if that foreigner:

"1. must be brought before the competent authorities of a Member State of the European Union pursuant to Articles L. 531-1 and L. 531-2 but cannot immediately leave France;

"2. is subject to an expulsion order but cannot immediately leave France;

"3. is subject to a deportation order made pursuant to Articles L. 511-1 to L. 511-3 and issued less than one year before, or must be deported under the terms of a prohibition from entering the national territory provided for under Article 131-30(2) of the Criminal Code but cannot immediately leave France;

"4. has been subject to an expulsion report or decision as referred to under Article L. 531-3 but cannot immediately leave France;

"5. having been subject to an expulsion decision on one of the above grounds, has not complied with the expulsion measure to which he is subject within a time limit of seven days after the conclusion of the previous period of detention or, notwithstanding such compliance, is found in France whilst that measure is still enforceable;

"6. has been subject to an obligation to leave the country taken pursuant to Article L. 511-1 less than one year before and in respect of which the time-limit of one month for voluntary departure from the country has expired but cannot immediately leave France";

2. Considering that pursuant to Article L. 552-1 of that Code: "Upon conclusion of a period of forty eight hours after the detention order, the Custodial judge shall decide whether to extend the detention. This judge shall issue an order at the seat of the Regional Court with jurisdiction over the place where the foreigner is being detained, unless provided for under regulation, having heard a representative of the administration if present, having been duly called, and the interested party or his counsel, if he has one. The foreigner may request the Custodial judge that he be allocated a court-appointed counsel. However, if a court falling under the jurisdiction of the Ministry of Justice which permits the issue of a public ruling has been especially established in the immediate vicinity of the place of detention, the judge shall rule in this court";

3. Considering that pursuant to Article L. 741-4 of that Code: "Subject to the requirement of compliance with the provisions of Article 33 of the Geneva Convention of 28 July 1951 relating to the status of refugees, the entry into France of a foreigner who applies for asylum may only be refused if:

"1. The examination of the asylum application falls under the jurisdiction of another State according to the provisions of Council Regulation (EC) no. 343/2003 of 18 February 2003 establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national, or of commitments with other States that are identical to those provided for under the said regulation;

"2. The foreigner applying for asylum is a national of a country in respect of which the provisions contained in Article 1(C)(5) of the aforementioned Geneva Convention or of a country regarded as a safe country of origin have been implemented. A country shall be regarded as such if it ensures respect for the principles of freedom, democracy and the rule of law, as well as human rights and fundamental freedoms. The consideration of the safety of the country of origin shall not preclude an individual examination of each application;

"3. The presence of the foreigner in France represents a serious threat to public order, public safety or State security;

"4. The asylum application is based on a deliberate fraud or amounts to an improper use of asylum procedures or was only submitted with the purpose of frustrating an expulsion order that has been issued or is imminent. In particular, the fraudulent submission of more than one application for a residence permit on the grounds of asylum under different identities shall amount to an improper use of asylum procedures. The fact that an asylum application is submitted in a French overseas collectivity shall also amount to an improper use of asylum procedures if it appears that such an application is pending in another Member State of the European Union.

"The provisions of this Article shall be without prejudice to the State's sovereign right to grant asylum to any person who nonetheless falls under one of the cases mentioned under paragraphs 1 to 4";

4. Considering that pursuant to Article L. 742-6 of that Code: "A foreigner present in France whose asylum application falls under one of the situations provided for under paragraphs 2 to 4 of Article L. 741-4 shall have the right to remain in France until service of the decision of the French Office for the Protection of Refugees and Stateless Persons, if the decision is to reject the application. Consequently, no expulsion measure referred to under Book V of this Code may be enforced before the decision by that Office.

"In the event that status as a refugee is recognised or subsidiary protection is granted, the administrative authority shall revoke any deportation order which, depending on the circumstances, has been taken. It shall without delay issue the refugee with the residence permit provided for under Article L. 314-11(8) and the recipient of subsidiary protection with the temporary residence card provided for under Article L. 313-13";

5. 5. Considering that the applicant submits that the right of residence is not guaranteed to foreigners whose asylum application has been processed according to urgent procedures until the decision has been notified to the French Office for the Protection of Refugees and Stateless Persons; that, consequently, any application to the National Asylum Review Board does not have suspensory effect with regard to a deportation order; that, when the National Asylum Review Board is seized of an application filed against such a decision, it rules that there the case "should not proceed to judgment" on the grounds that "the forced repatriation to his country of origin of an applicant who has not agreed to withdraw his application for protection has the consequence of provisionally suspending the processing of his application with the result that under these circumstances his appeal is temporarily without purpose" and specifies "that in the event that he returns to France, it will be for the applicant to request the Court to issue a ruling"; that, according to the applicant, in this way under the terms of this case law the combined provisions of Articles L. 551-1, L. 552-1, L. 741-4 and L. 742-6 violate the right of appeal guaranteed under Article 16 of the Declaration of the Rights of Man and the Citizen of 1789;

6. Considering, first, that the aforementioned provisions contained in Articles L. 551-1 and L. 552-1 were initially enacted in Article 49 of the Law of 26 November 2003; that the Constitutional Council specifically examined Article 49 in recitals 47 to 83 in the preamble to its aforementioned decision of 20 November 2003; that Article 2 of the operative part of this decision ruled that Article 49 was constitutional; that Articles L. 551-1 and L. 552-1 were subsequently amended by Articles 71 of the Law of 24 July 2006 and 48 of the Law of 20 November 2007; that these amendments concerned, on the one hand, the provision that a foreigner may also be detained in the event that the prohibition from the national territory and the refusal to grant a right of residence is associated with an obligation to leave France, whereas the foreigner is unable to leave immediately; that they had the goal on the other hand of permitting a foreigner to be represented by counsel before the Custodial Judge or, if he has no counsel, to request that one be appointed by the court; that they are not unconstitutional; that, accordingly, they do not have the effect of calling into question the ruling contained in the decision of 20 November 2003 that Articles L. 551-1 and L. 552-1 are constitutional;

7. Considering, secondly, that the aforementioned provisions of Article L. 741-4 were originally enacted in Article 5 of the Law of 10 December 2003; that the Constitutional Council specifically examined Article 5 in recitals 28 to 48 of its aforementioned decision of 4 December 2003; that Article 1 of the operative part of that decision ruled that Article 5 was constitutional;

8. Considering, thirdly, that the aforementioned provisions of Article L. 742-6 were originally enacted in Article 24 of the Law of 24 August 1993; that the Constitutional Council specifically examined Article 24 in recitals 82 to 88 of its aforementioned decision of 13 August 1993; that certain amendments were made to these provisions by Article 7 of the Law of 10 December 2003; that they had the object of providing for the issue of a temporary residence card in the event that subsidiary protection was granted; that they are not unconstitutional; that, accordingly, the same applies to Article L. 742-6;

9. Considering, finally, that whereas in raising a priority preliminary ruling on constitutionality any litigant has the right to challenge the constitutionality of the effective scope that a settled judicial interpretation confers upon this provision, the case law of the National Asylum Review Board has not been brought before the Conseil d'État; that it is for the latter, which is placed at the pinnacle of the administrative legal order, to ensure that this case law guarantees the right of appeal referred to in recital 87 to the decision of the Constitutional Council of 13 August 1993; that, under these conditions, this case law cannot be deemed to constitute a change in circumstances of such a nature as to call the constitutionality of the contested provisions into question;

10. Considering, accordingly, that it results from all of the above that the contested provisions are constitutional,

H E L D:

Article 1 .– Articles L. 551-1, L. 552-1, L. 741-4 and L. 742-6 of the Code on the Entry and Residence of Foreigners and on the Right of Asylum are constitutional.

Article 2. – This decision shall be published in the Journal Officiel of the French Republic and notified in the conditions provided for under Article 23-11 of the Ordinance of 7 November 1958 referred to hereinabove.

Deliberated by the Constitutional Council in its session on 7 April 2011, sat on by: Mr Jean-Louis DEBRÉ, President, Mr Jacques BARROT, Mrs Claire BAZY MALAURIE, Mr. Guy CANIVET, Mr. Michel CHARASSE, Mr. Renaud DENOIX de SAINT MARC, Mrs Jacqueline de GUILLENCHMIDT, Mr. Hubert HAENEL and Mr. Pierre STEINMETZ.

Announced on 8 April 2011.