Version en anglais - 2016-580 QPC

Decision no. 2016-580 QPC of 5 October 2016 - Mr. Nabil F. - [Deportation in Absolute Urgency]


THE CONSTITUTIONAL COUNCIL WAS ASKED TO DECIDE UPON a priority matter of constitutionality on 06 July 2016 by the Conseil d'État (Decision no. 398371 of that same date), under the conditions set out in Article 61-1 of the Constitution. This question was raised on behalf of Mr. Nabil F., by the firm Spinosi et Sureau, Attorneys at the Conseil d'État and the Cour de Cassation. It was recorded by the General Secretariat of the Constitutional Council under number 2016-580 QPC. It relates to the conformity with the rights and liberties that the Constitution guarantees under Article L. 522-1 of the French Code on the Entry and Residence of Foreigners and the Right of Asylum.

In light of the following texts:
- the Constitution;
- Ordinance no. 58-1067 of 7 November 1958 as amended, concerning the Organic Law on the Constitutional Council;
- the Code on the Entry and Residence of Foreigners and the Right of Asylum;
- the Code of Administrative Justice;
- Ordinance no. 2004-1248 of 24 November 2004 relating to the legislative part of the Code on the Entry and Residence of Foreigners and the Right of Asylum;
- Law no. 2006-911 of 24 July 2006 relating to immigration and integration, specifically its Article 120;
- the Regulation of 4 February 2010 on the procedure applicable before the Constitutional Council for priority matters of constitutionality;
In light of the following items:
- the observations presented on behalf of the applicant by the firm Spinosi et Sureau, registered on 28 July and 12 August 2016;
- the observations of the Prime Minister, registered on 28 July 2016;
- the observations in response presented for the associations La Cimade [a French NGO for refugees] and La Ligue des Droits de l'Homme [the League of Human Rights] by the firm Spinosi et Sureau, recorded on 28 July 2016;
- the documents produced and appended to the case file;
Having heard Mr. Patrice Spinosi, Esq., attorney at the Conseil d'État and the Cour de cassation, for the applicant and the intervening associations, and Mr. Xavier Pottier, appointed by the Prime Minister, at the public hearing of 27 September 2016;
And having heard the rapporteur;
THE CONSTITUTIONAL COUNCIL DECIDED ON THE FOLLOWING:


1. Article L. 522-1 of the Code on the Entry and Residence of Foreigners and the Right of Asylum, in its drafting from the Ordinance of 24 November 2004, mentioned herein above, states: "I. - Except in the case of absolute urgency, deportation of an individual may only be carried out under the following conditions:
"Section 1° The foreigner must be previously informed under the conditions set by decree in the Conseil d'État;
"Section 2° The foreigner is summoned to be heard by a commission called on request of the administrative authority and which is composed of:
"a) the president of the Tribunal de Grande Instance in the capital city of the department, or a judge assigned by him or her, President;
"b) a magistrate assigned by the General Assembly of the Tribunal de Grande Instance of the capital city of the department;
"c) a counsellor of the administrative tribunal".

2. According to the applicant and the intervening associations, by allowing the deportation of a foreigner from French territory in absolute urgency, without allowing him or her the material possibility to go before a judge before this deportation is executed, the contested provisions unjustifiably and disproportionately infringe on the right to effective legal remedy as described in Article 16 of the Declaration of the Rights of Man and the Citizen of 1789 as well as the right to respect for private life as recognised in Article 2 of this Declaration. By not defining the notion of absolute urgency, and by not establishing the guarantees that would impede the immediate implementation of a deportation decision, the legislature also infringed in its competence on the conditions that have an effect on these rights.

3. Consequently, the priority matter of constitutionality focuses on the terms: "Except in the case of absolute urgency", as appearing in the first Subparagraph of Article L. 522-1 of the French Code on the Entry and Residence of Foreigners and the Right of Asylum.

4. According to Article 2 of the 1789 Declaration: "The aim of any political association is the preservation of the natural and imprescriptible rights of man. These rights are freedom, property, security, and resistance to oppression?. The freedom proclaimed by this article implies the right to respect for private life. In order to be constitutional, limits placed on this right must be justified by a reason of public interest and implemented adequately and proportionately to that objective.

5. According to Article 16 of the 1789 Declaration: «A society in which the observance of the law is not assured, nor the separation of powers defined, has no constitution at all?. It follows from this provision that there shall be no substantial infringement on the rights of individuals seeking effective remedy before a court of law.

6. The fact that the legislator acted in excess of its own powers may only be invoked in relation to an application for a ruling on a priority matter of constitutionality in the event that this breach itself impinges upon a right or freedom guaranteed by the Constitution.

7. Pursuant to Article 34 of the Constitution, it is for the law to determine the rules concerning the fundamental guarantees granted to citizens to exercise public freedoms. In this framework, it shall be for the legislator to ensure that a balance is struck, on the one hand, between the prevention of breaches of public order and infractions, necessary in order to safeguard the rights and principles of constitutional value, and on the other, respect for rights and freedoms guaranteed under the Constitution. Among the latter are the right to effective legal remedy, guaranteed by Article 16 of the Declaration of 1789, and the right of respect for private life, guaranteed by Article 2 of this Declaration.

8. Pursuant to Article L. 522-1 of the Code on the Entry and Residence of Foreigners and the Right of Asylum, the deportation of a foreigner cannot be ordered unless the administrative authority had previously notified the individual and under the condition that he or she is summoned to be heard by a commission as established in Section 2 of this Article. Once these formalities have taken place, the deportation order may be enforced by the administrative office pursuant to Article L. 523-1 of this same Code. However, in the case of absolute urgency, the contested provisions exempt the administrative authority from the obligation to give prior notification to the foreigner in question and the right for him or her to be heard by the commission before deportation. Pursuant to Article L. 523-2 of the same Code, determining the country of removal is part of a separate decision.

9. First of all, absolute urgency responds to the necessity to be able to remove a foreigner from French national territory in the name of the overriding imperative of public order.

10. Secondly, the contested provisions do not deprive the individual in question of the possibility to appeal the deportation decision before an administrative judge, specifically a judge sitting for urgent matters, based upon Articles L. 521-1 and L. 521-2 of the Code of Administrative Justice, who may suspend enforcement of the deportation or order any measures necessary to safeguard fundamental liberties.

11. Lastly, the lack of any time elapsed, as criticised by the applicant, between, first of all, the notification of the foreigner about the deportation order, and secondly, its enforcement, does not follow from the contested provisions. If the decision determining the country of destination is contested, as stated in both Articles L. 513-2 and L. 523-2 of the Code on the Entry and Residence of Foreigners and Right of Asylum, it is up to the administrative judge to ensure that the foreigner is not sent "to a country where his or her life or liberty is threatened or where he or she would be exposed to treatment that is contrary to the stipulations of Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November 1950".

12. It follows from the foregoing that the legislature, by allowing the administrative authority, in the case of absolute urgency, to disregard the formalities established in Article L. 522-1 of the Code on the Entry and Residence of Foreigners and Right of Asylum, struck a balance which is not manifestly disproportional between, firstly, the right to effective legal remedy and the right to respect for private life, and secondly, preventing attacks on public order and infractions. Therefore the claims regarding the infringement on Articles 2 and 16 of the 1789 Declaration should be set aside.

13. Consequently, the words: "Except in the case of absolute urgency", as appearing in the first Subparagraph of Article L. 522-1 of the French Code on the Entry and Residence of Foreigners and the Right of Asylum, which are not undermined by incompetence and infringe on no other right or liberty that the Constitution guarantees, should be declared constitutional.

THE CONSTITUTIONAL COUNCIL RULES:

Article 1. - The words: "Except in the case of absolute urgency", as appearing in the first Subparagraph of Article L. 522-1 of the French Code on the Entry and Residence of Foreigners and the Right of Asylum, in its drafting from Ordinance number 2004-248 of 24 November 2004 relating to the legislative part of the Code on the Entry and Residence of Foreigners and the Right of Asylum, are constitutional.

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

Deliberated by the Constitutional Council in its session of 04 October 2016, in attendance: Mr. Laurent FABIUS, President, Ms. Claire BAZY MALAURIE, Ms. Nicole BELLOUBET, Mr. Michel CHARASSE, Mr. Jean-Jacques HYEST, Mr. Lionel JOSPIN, Ms. Corinne LUQUIENS, Ms. Nicole MAESTRACCI and Mr. Michel PINAULT.

Made public on 04 October 2016.