Decision no. 2019-797 QPC of 26 July 2019

On 16 May 2019, the Constitutional Council, in the conditions provided for by Article 61-1 of the Constitution, received an application for a priority preliminary ruling on the issue of constitutionality raised by the Conseil d'État (decision nos. 428478 and 428826 of 15 May 2019). This application was made on behalf of the following associations: Unicef France, Convention nationale des associations de protection de l'enfance, Défense des enfants international - France, Médecins du monde, Médecins sans frontières, Secours catholique, Fédération des acteurs de la solidarité, Cimade, Gisti, Fédération des associations de solidarité avec tous les immigrés, Ligue des droits de l'homme, Union nationale interfédérale des œuvres et organismes privés non lucratifs sanitaires et sociaux, Fédération de l'entraide protestante, Association nationale des assistants de service social and Avocats pour la défense des droits des étrangers, for the Armée du salut foundation and for the Syndicat des avocats de France, the Syndicat de la Magistrature and the Union syndicale Solidaires, by SCP Spinosi et Sureau, attorney for the Conseil d'État and for the Cour de Cassation, as well as on behalf of the Conseil national des barreaux by SCP Boré, Salve de Bruneton et Mégret, attorney for the Conseil d'État and for the Cour de Cassation. It was registered by the general secretariat of the Constitutional Council under no. 2019-797 QPC. It relates to the conformity with rights and freedoms that the Constitution guarantees in Article L. 611-6-1 of the Code for Entry and Residence of Foreigners and Right of Asylum (CESEDA), in its formulation resulting from Act No. 2018-778 of 10 September 2018 for managed immigration, effective asylum rights, and successful integration.

Having regard to the following texts:

• the Constitution;

• Ordinance No. 58-1067 of 7 November 1958, constituting an institutional act on the Constitutional Council;

• the Code for Entry and Residence of Foreigners and Right of Asylum (CESEDA);

• Act No. 78-17 of 6 January 1978 relating to information technology, files, and freedoms;

• Act No. 2018-778 of 10 September 2018 for managed immigration, effective asylum rights, and successful integration;

• the Regulation of 4 February 2010 as to the procedure applicable before the Constitutional Council with respect to applications for a priority preliminary ruling on the issue of constitutionality;

Having regard to the following documents:

• the observations on behalf of the Conseil national des barreaux, applicant, by SCP Boré, Salve de Bruneton et Mégret, registered on 6 June 2019;

• the observations on behalf of Unicef France and the other applicants by SCP Spinosi et Sureau, registered on 7 June 2019;

• the observations of the Prime Minister, registered on the same date;

• the observations of intervenors on behalf of the following associations: Fédération des établissements hospitaliers et d'aide à la personne and Mouvement contre le racisme et pour l'amitié entre les peuples, by Anita Bouix, Attorney at the Toulouse Bar, registered on the same date;

• the observations of intervenors on behalf of the association, Hors la rue, by Hélène Martin-Cambon, Attorney at the Toulouse Bar, registered on the same day;

• the observations of intervenors on behalf of the association La quadrature du net, by Alexis Fitzjean Ó Cobhthaigh, Attorney at the Paris Bar, registered on the same day;

• the second observations on behalf of the associations, foundation, and union applicants by SCP Spinosi et Sureau, registered on 24 June 2019;

• the second observations of intervenors on behalf of the association, Hors la rue, by Hélène Martin-Cambon, registered on the same day;

• the additional documents produced and appended to the case files;

After having heard Patrice Spinosi, Attorney for the Conseil d'État and for the Cour de Cassation, on behalf of Unicef France and eighteen other applicants, Louis Boré, Attorney for the Conseil d'État and for the Cour de Cassation, on behalf of the Conseil national des barreaux, applicant, Alexis Fitzjean Ó Cobhthaigh, on behalf of La quadrature du net, intervenor, Hélène Martin-Cambon, on behalf of Hors la rue, intervenor, Anita Bouix, on behalf of the Fédération des établissements hospitaliers et d'aide à la personne, and Mouvement contre le racisme et pour l'amitié entre les peuples, intervenors, and Philippe Blanc, appointed by the Prime Minister, at the public hearing of 9 July 2019;

And after having heard the rapporteur;

THE CONSTITUTIONAL COUNCIL DECIDED THAT:

1. Article L. 611-6-1 of the Code for Entry and Residence of Foreigners and Right of Asylum (CESEDA), in its formulation resulting from the aforementioned Act of 10 September 2018, stipulates:
   “In order to better guarantee the protection of children and to combat illegal entry and residence of foreign nationals in France, fingerprints and photographs of foreign nationals that claim to be minors that are temporarily or definitively deprived of the protection of their family may be collected, recorded, and be subject to automated processing within the conditions provided for by Act No. 78-17 of 6 January 1978 relating to information technology, files, and freedoms.
   “The processing of data does not include a facial recognition system based on the photograph.
   “The data may be collected as soon as the person declares they are a minor. Storage of data concerning persons recognised as minors is limited to the duration that is strictly necessary for these persons to be taken care of and advised, taking their personal situation into consideration.
   “A decree in the Conseil d'État, taken after a reasoned opinion is made public by the Commission nationale de l'informatique et des libertés (CNIL, French national commission on information technology and freedom), determines the manner of implementing this article. It specifies the duration of storage of recorded data and the conditions for their update, the categories of persons able to access them or to whom they are addressed, as well as the methods by which the persons concerned may exercise their rights.”

2. The applicants, joined by the intervenors, note that these provisions, that create a file of foreign nationals that declare they are minors, violate the constitutional requirement of protection of the best interest of the child, and the right to personal privacy. Firstly, they criticise the lack of a definition of the notion of “persons recognised as minors” which could cause, based on an incorrect administrative evaluation, said person to be subject to a measure of separation despite their being a minor. This lack of a definition would also result in an infringement on the presumption of minority that would come from the requirement of protection of the best interest of the child. Secondly, the applicants note that, by not limiting the purposes of automatic processing to solely the protection of children, the legislator would not have excluded the reuse of data to combat illegal entry and residence of foreign nationals in France. Lastly, the applicants assert that the legislator would not have sufficiently defined the conditions for storage of personal data and the possible consequences that could result from a refusal of the collection of said data. Furthermore, one of the applicants asserts that the right to effective legal protection would be violated based on the fact that appealing the decision declaring a person as an adult would not prevent them from being separated. For the same reasons, these provisions would also be judged as not acting fully within the competence of jurisdiction (incompétence négative), in such a way as to infringe on the aforementioned constitutional requirements.

3. According to the tenth and eleventh sections of the Preamble of the Constitution of 1946: “The Nation shall provide the individual and the family with the conditions necessary to their development. - It shall guarantee to all, notably to children, mothers and elderly workers, protection of their health, material security, rest and leisure.” This results in an obligation of protection of the best interest of the child. This obligation requires that minors present on the national territory benefit from the legal protection attached to their age. It follows that the rules related to determining the age of an individual must be bound by the necessary guarantees in order that minors not be incorrectly considered adults.

4. The freedom declared by Article 2 of the Declaration of Human and Civic Rights of 1789 presupposes the right to personal privacy. As a result, the collection, recording, storage, consultation, and communication of personal data must be justified by a motive of general interest, and put in place in a manner that is appropriate and in proportion with this objective.

5. It is the legislator's responsibility to ensure the reconciliation between the objective of combating illegal immigration that contributes to maintaining public order, a constitutional value, and the right to personal privacy.

6. The disputed provisions create an automated processing system that includes fingerprints and photography of foreign nationals who declare that they are minors who are either temporarily or permanently without the protection of their family. These data can be collected as soon as the foreign national requests protection as a minor. In such a case, the collection, recording, and storage of fingerprints and photography of a foreign national allows the authorities in charge of evaluating the person's age to verify that such an evaluation has not already been carried out.

7. Firstly, these provisions have neither the purpose nor the result of modifying the rules relating to determining the age of an individual and to the protections related to the status of minor, including those that prohibit measures of separation and that allow for appeal of the results of the evaluation carried out before the court. In this regard, an individual's status as an adult cannot be deduced based on their refusal to submit to fingerprinting, or by the sole statement, by an authority that is charged with evaluating the individual's age, that their information is already recorded in the file concerned, or in another file that receives data from this file. They do not violate the constitutional requirement of protection of the best interest of the child.

8. Secondly, by avoiding the repetition of requests for protection by adults that have been refused, the automated processing put in place by the disputed provisions seeks to facilitate the action of authorities in charge of protecting minors and to combat illegal entry and residence of foreign nationals in France. In so doing, and while no constitutional standard opposes, in principle, that automated processing can serve several purposes, the legislator, by adopting these disputed provisions, meant to put in place the constitutional requirement of protection of the best interest of the child and pursued the objective of constitutional value to combat illegal immigration.

9. Furthermore, the disputed provisions provide for the collection, recording, and processing of fingerprints and photography of foreign nationals that ask to benefit from the systems for the protection of children, and exclude all systems of facial recognition. As such, the data collected are the data necessary for identifying the person and verifying that they have not already been evaluated in order to determine their age.

10. Lastly, on the one hand, the disputed provisions provide that storage of data concerning persons recognised as minors be limited to the duration that is strictly necessary for these persons to be taken care of and advised, taking their personal situation into consideration. On the other hand, the file set up by the disputed provisions is implemented in compliance with the aforementioned Act of 6 January 1978.

11. It follows from the foregoing that, by adopting these disputed provisions, the legislator provided reconciliation between maintaining public order and the right to personal privacy that was not disproportionate.

12. As a result, Article L. 611-6-1 of the Code for Entry and Residence of Foreigners and Right of Asylum (CESEDA), which is not judged as not acting fully within the competence of jurisdiction (incompétence négative) and also does not violate the right to effective legal protection, or any other right or freedom guaranteed by the Constitution, must be declared as conforming to the Constitution.

THE CONSTITUTIONAL COUNCIL DECIDES:

Article 1. - Article L. 611-6-1 of the Code for Entry and Residence of Foreigners and Right of Asylum (CESEDA), in its formulation resulting from Act No. 2018-778 of 10 September 2018 for managed immigration, effective asylum rights, and successful integration, conforms to the Constitution.

Article 2. - This decision will be published in the Journal Officiel of the French Republic and notified in the manner provided for in Article 23-11 of the aforementioned Ordinance of 7 November 1958.

Ruled by the Constitutional Council in its 25 July 2019 session, with the following members present: Laurent FABIUS, President, Claire BAZY MALAURIE, Alain JUPPÉ, Dominique LOTTIN, Corinne LUQUIENS, Nicole MAESTRACCI, Jacques MÉZARD, François PILLET and Michel PINAULT.

Published on 26 July 2019.