(France) Court of Appeal of Rouen, Jurisdiction of the first president, 10th April 2019, No RG 19/15556
Keywords:
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Detention
Description
"Restriction on freedom of movement through confinement that is ordered by an administrative or judicial authority(ies) in order that another procedure may be implemented. In an EU asylum context, this means confinement of an asylum seeker by a Member State within a particular place, where the applicant is deprived of his or her freedom of movement. This may occur during any stage of or throughout the asylum process, from the time an initial application is made up to the point of removal of an unsuccessful asylum seeker. In an EU Return context, Member States may only detain or keep in a detention facility a third-country national who is the subject of return procedures in order to prepare the return and/or carry out the removal process, in particular when: (a) there is a risk of absconding; or (b) the third-country national concerned avoids or hampers the preparation of return or the removal process. Any detention shall be for as short a period as possible and only maintained as long as removal arrangements are in progress and executed with due diligence." |
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Responsibility for examining application
Description
The Member State responsible for examining an application for asylum is determined in accordance with the criteria contained in Chapter III Dublin II Regulation in the order in which they are set out in that Chapter and on the basis of the situation obtaining when the asylum seeker first lodged his application with a Member State. |
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Return
Description
"In the context of the Return Directive (2008/115/EC), the process of going back - whether in voluntary compliance with an obligation to return, or enforced - to: - one's country of origin; or - a country of transit in accordance with EU or bilateral readmission agreements or other arrangements; or - another third country, to which the third-country national concerned voluntarily decides to return and in which he/she will be accepted. There are subcategories of return which can describe the way the return is implemented, e.g. voluntary, forced, assisted and spontaneous return; as well as sub-categories which describe who is participating in the return, e.g. repatriation (for refugees)." |
Headnote:
The detention to facilitate the return is used if the return is considered as a reasonable prospect. The period in immigration detention must correspond only to the time which is strictly necessary for the enforcement of the return measure. The lack of a justification for the failure to enforce the return does not prove that the time in immigration detention was used effectively and that an extension could be needed.
Facts:
On 5th of April 2019, the applicant received an order from the national authority to leave France and return to his country of origin (Morocco).
On the same day (5th April 2019) the applicant was placed in immigration detention for 48 hours according to the French Code for the Entry and Residence of Foreigners in France and the Right of Asylum (art. L-552-1).
At the end of the 48 hours, the Prefect of Seine Maritime requested an extension for immigration detention of the applicant for 28 days.
On 8th April 2019, by order of the Judge of Liberties and Detention (JLD) of Rouen, the Prefect’s request was granted, and the applicant’s detention lasted for 28 days from this day.
On 10th April 2019, the applicant appealed against the extension of their immigration detention by the JLD before the Court of Appeal of Rouen.
Decision & reasoning:
The applicant used three main arguments for his appeal.
First, the applicant argued that there was no necessity to apply immigration detention as an effective measure for his return was impossible. Second, the applicant argued on the conditions of his apprehension which were neither necessary. Third, the applicant considered that the lack of due diligence on the part of the national administration in the management of the applicant’s return could not justify his apprehension by the authorities from his country of origin.
The Prosecutor only asked the confirmation of the order to extend the immigration detention for the applicant.
The Court of Appeal of Rouen based its decision on the French Code of Entry and Stay of Foreigners and the Right of Asylum.
According to the first provision (Art. L-554-1), an extension of immigration detention could be granted only after a time limit of seven days between the first and the second detention order.
According to the second provision (L-551-1 III), the national administration must act with due diligence when using immigration detention which can only be applied to ensure an effective return of foreigners. The detention measure is used if return is considered a reasonable prospect. For being a reasonable perspective, the period in immigration detention must correspond only to the time which is strictly necessary for the return’s enforcement.
The Court of Appeal (CA) of Rouen found that the national authority did not justify the reasons for the failure to enforce the effective return in the first 48 hours or the reasons for not releasing him after this time limit. Besides, the national authority did not present any new elements for the demand of the extension. Therefore, the CA of Rouen did not consider the prospect of the applicant’s return to be reasonable expected following the lack of a justification to explain why the return was not materialized during the applicant’s initial time in immigration detention.
Hence, the Court of Appeal (Rouen) accepted the appeal and annulled the order of the Judge of Liberties and Detention (JLD) of Rouen.
Outcome:
Appeal granted.
Subsequent proceedings:
The applicant is released.
Observations/comments:
This case summary has been written by Alexandre Piérard, LLM student at University of Ghent.