The French Constitutional Court ruled on 4 October 2019 that the administrative court is competent to assess the legality of a decision to maintain a person in administrative detention if, based on a motivated and written decision, the Prefect considers that the asylum claim has only been lodged to prevent a notified or imminent order of removal.
The applicant had referred a preliminary question of constitutionality to the Constitutional Court concerning Article L.556-1 of the French Code on Entry and Residence of Foreigners and on Asylum (Code de l’entrée et du séjour des étrangers et du droit d’asile). It argued that the provision violated Article 66 of the French Constitution insofar as prevented review by the Judge of Freedoms and Detention (JLD) – as guardian of individual freedoms – due the exclusive competence granted to the administrative court to assess the legality of the decision to maintain a person in administrative detention in such cases. The applicant further considered that it constituted a violation of his right to an effective judicial remedy, which resulted from insufficient effective remedies and from the complexity linked to the division of competences between administrative and civil courts (para 3).
The Constitutional Court ruled, however, that the competence of the administrative court to assess the legality of a detention order does not violate the French Constitution. It is in accordance with the French separation of powers and with the fundamental principle pursuant to which the administrative court is competent to rule on decisions taken by authorities exercising the executive power (para 6). The Court also referred to the jurisprudence of the Court of Cassation which confirmed that, in such cases, the civil court is not competent to assess the legality of the decision to maintain a person in detention (para 8).
In its ruling, the Constitutional Court further explained that the decision of maintaining a person in detention is a decision which relates to the stay of foreigners on the territory. This issue thus falls within the exclusive competence of the administrative court (para 9). The Court also noted that Article L.556-1 explicitly provides that the decision to maintain a person in detention does not affect the control of the JLD to examine detention orders and decisions on the prolongation of detention. The latter is allowed to suspend or interrupt detention orders at any time (para 10). The Court further stated that a violation of the right to an effective remedy cannot be deduced solely from the division of powers between administrative and civil courts (para 14).
For further information:
- AIDA, Country Report France, 2018 Update, March 2019.
*This information was first published by AIDA, managed by ECRE.
Photo: (CC) lens April, 2015