ECtHR - De Souza Ribeiro v France [GC], Application No. 22689/07

Facts:

The Applicant, a Brazilian national, lived in French Guiana with his family from 1988 until January 2007. On 25 January 2007 he was stopped at a road check. Unable to show proof that his presence on French soil was legal, he was arrested and served with administrative orders for his removal and detention pending removal. The next day he applied to an administrative court for judicial review of the removal order. He made an urgent request for a stay of execution suspension of the removal order and expressed serious doubts as to its validity. Barely fifty minutes after lodging his application with the administrative court, the Applicant was removed to Brazil. That evening the administrative court declared his application for judicial review devoid of purpose as he had already been deported. In February 2007 the Applicant lodged an urgent application for protection of a fundamental freedom (requête en référé liberté) with the administrative court, which was dismissed. In August 2007 he returned to French Guiana illegally. On 18 October 2007 the administrative court examined the Applicant’s application of 25 January 2007 for judicial review of the initial removal order, which it declared illegal and set aside. In June 2009 the Applicant was issued with a “visitor’s” residence permit, which was renewed until June 2012. He now has a renewable residence permit for “private and family life”.

Decision & reasoning:

The Court noted, firstly, that the Applicant had made use of the remedies available to him under the system in force in French Guiana prior to his removal. However, the prefect had effected only a cursory examination of his situation. The Applicant had been removed from the territory less than thirty-six hours after his arrest pursuant to an administrative removal order that was succinct and stereotyped and was served on the Applicant immediately after his arrest.

Furthermore, regardless of the reason for the Applicant’s illegal situation at the time of his arrest, he was protected under French law against any form of expulsion. That was the conclusion reached by the administrative court, which had proceeded to declare the removal order illegal. Thus, by 26 January 2007 the French authorities were in possession of evidence that the Applicant’s removal was not in accordance with the law and might therefore constitute an unlawful interference with his rights.

The Applicant had been able to apply to the administrative court. However, the brevity of the period between the Applicant’s application to the administrative court and his removal had excluded any possibility that the court had seriously examined the circumstances and legal arguments for and against finding a violation of Article 8 in the event of the removal order being enforced. It followed that no judicial examination had been made of the merits or of the Applicant’s urgent application for interim measures. The Applicant had thus been deported solely on the basis of the prefect’s order. Consequently, the haste with which the removal order was executed had had the effect of rendering the available remedies ineffective in practice and therefore inaccessible and the Applicant had had no chance of having the lawfulness of the removal order examined sufficiently thoroughly by a national authority offering the requisite procedural guarantees.

The discretion States are afforded regarding the manner in which they conform to their obligations under Article 13 cannot be exercised in a way that deprived applicants of the minimum procedural safeguards against arbitrary expulsion.

In the light of all the foregoing, the Applicant had not had access in practice to effective remedies in respect of his complaint under Article 8 of the Convention when he was about to be deported.

Outcome:

A violation of Article 13 in conjunction with Article 8 of the Convention.

Three thousand euros in respect of non-pecuniary damage and twelve thousand euros in respect of costs and expenses were awarded to the Applicant.

Subsequent proceedings:

According to the action report submitted by the French authorities in July 2013, the applicant was granted a residence permit for “private and family life” in France since 2009. As to general measures, an instruction was issued to the prefects of Guadeloupe, Guyana and Mayotte in order to specify the actions to be taken when a foreigner brings an urgent application. In addition, some provisions were added to the CESEDA (code on foreigners’ entry and residence and on the right of asylum) so as to ensure a thorough examination of the right to reside before any expulsion decision.

Other sources:

“Twenty guidelines on forced return”, Council of Europe Committee of Ministers, 4 May 2005;

Concluding observations of the United Nations Human Rights Committee on the fourth periodic report of France (CCPR/C/FRA/CO/4).