France, Court of Appeal of Douai, 19 February 2019, X v. Prefect of Pas de Calais, No RG19/00334

Facts:

On 14 of February 2019, the applicant was put into administrative detention.

On 16 of February 2019, the Judge of Liberties and Detention decided to extend the applicant’s administrative detention.

On 18 of February 2019, the applicant introduced an appeal against the decision to extend the administrative detention before the Court of Appeal of Douai. 

Decision & reasoning:

The reasoning of the Court of Appeal (CA) contains two steps: firstly, the assessment of the lawfulness of the administrative detention’s decision and secondly, the extension of the administration detention.

First, the CA assessed the lawfulness of the administrative detention’s decision from the national administration.

Considering the discovery of the applicant in a truck riding to the UK and the irregular presence on the territory without a place of residence, the national administration assessed that there was a risk of absconding. This assessment was based on the French Code for the Entry and Residence of Foreigners and the Right to Asylum (CRFRA), art. 551-1. In addition, according to art. 561-2 (8°), the national administration emphasized that the applicant did not have any place of residence in France which could justify less restrictive measures such as house arrest instead of detention. In this regard, the Court of Appeal confirmed the administrative decision.

Second, concerning the extension of the detention, according to the CRFRA, the time period of administrative detention lasts 48 hours and must be extended to keep the foreigner in administrative detention.

However, as provided for in the CRFRA, the applicant argued that her state of vulnerability requested a medical examination which might result in an adaptation of the applicant’s detention conditions according to the circumstances.

In this regard, the CA noticed that the applicant declared having been the victim of sexual violence. The police, when the applicant was found in the truck riding to the UK, stated that the applicant was likely psychologically vulnerable. Furthermore, the national administration also observed the likely psychological vulnerability, but it refused to dismiss the detention decision since no examination had been reported as incompatible with the administrative detention.

While in detention, the applicant requested a medical examination by the doctor in charge at her place of administrative detention, but she was not examined, and no justification was given for this lack of examination.

Therefore, the CA decided that because the state of vulnerability was not examined as requested by the applicant through a medical examination when she was in administrative detention, the applicant should be released.  The CA found the extension of administrative detention unlawful.

Finally, the Court of Appeal confirmed the regularity of the administration detention decision. However, the CA denied the motives for an extension of the administrative detention and ordered the applicant to be released. 

Outcome:

Appeal granted against the extension of the administrative detention. The applicant is released from administrative detention. 

Subsequent proceedings:

The national administration could make an appeal of the decision before of the Council of State.

Observations/comments:

This case summary has been written by Alexandre Piérard, LLM student at University of Ghent.