The Debré Bill
|[Who is concerned ?]|
SUMMARY OF LEGAL GROUNDS
The Laws dated August 24th and December 30th 1993 laid down the legal foundations for applying a new immigration policy under conditions corresponding to the necessities of genuine control of immigration. The principles set forth in the aforementioned Laws must be respected, and there is no cause to call these principles into question, since the institutions of national sovereignty pronouced clearly in their favour in 1993. Moreover, any deviation from these principles would be a sign of weakness towards illegal immigration: such weakness would be not only inacceptable in itself but would also constitute an error fatal to the process of integration of the foreigners legally entitled to be in France.
Since 1993, the Government has undertaken considerable efforts to give full effect to the law. The implementing decrees were passed in the course of 1993, and the practical procedures for applying the texts were detailed in circulars. At the same time, the personnel concerned were provided with appropriate training. Additional resources were allocated in 1995, and, in the same year, a plan for the deportation of foreigners illegally in France was successfully conceived and implemented.
Nevertheless, parliamentary inquiries conducted at the end of 1995 revealed some very real difficulties of implementation. During the first half of 1996, the problem was analysed in greater depth, and the conclusion that was drawn from this analysis, in particular as a result of certain highly mediatised cases, constitutes the basis for the present Bill.
Certain specific amendments to the legislation have become indispensable. These amendments in particular concern the Government Order of November 2nd, 1945, relating to the admission and residence of foreign persons in France; these amendments are strictly delimited by necessity and are not intended to introduce any further revision of the general balance of the said Order.
It should also be noted that the text of the present Bill takes account of the Constitutional principles of the French Republic, as interpreted on numerous occasions by the "Conseil Constitutionnel" (Constitutional Council). The choices imposed by these Constitutional principles may seem to contrast with the options chosen by our main European neighbours, who apply legislation that is much less protective of foreigners, especially in matters of detention. However, any other approach would inevitably introduce a break with constitutional jurisprudence and would be inspired by a logic that the present Bill cannot support within the legal framework in force. The extent of the proposed reform is nevertheless significant and should be recognised as the evidence of an approach that is both pragmatic and resolute, with the aim of preserving the compromise that is constantly desired between firmness against clandestine immigration and respect for individual human rights.
Four main objectives underlie this Bill:
This provision is the object of Article 8.
This provision is supplemented by an extension to the field of application of the judicial detention procedure created in 1993, in order to enable judicial detention to fulfill its role as a substitute for prison with a view to the effective deportation of the detainee in the short term. This extension is the object of Article 9, which will permit judicial detention to be applied to foreigners in irregular situation but without the requisite border-crossing documents and to foreigners who have escaped a deportation order.
The other proposed provisions aim to provide complementary detailed improvements to the texts already in force.
Article 1 takes into account the recurrent criticism of the "Certificate of Accommodation". This document, which is granted for the benefit of family visits, is too often fraudulently misused. The powers of the mayor, as the elected head of the local authority, are therefore adapted to take better account of this reality. This amendment will answer the preoccupation of several elected representatives.
Article 1 also creates a new formality, inviting the host to inform the mayor's office of the departure of the foreigner accommodated in the host's home. This very simple procedure may induce hosts to become aware of their own responsibility if they render themselves accomplices to the illegal stay of foreigners in France.
Article 3 lays down that the passports of foreigners who are in France without due legal title may be impounded on their arrest and retained for the period required to complete their deportation procedure.
Article 6 is intended to take account of the general attribution of legal competence for hearing appeals: this competence is henceforth transferred to the Administrative Appeal Courts, so that appeals against decisions by the administrative courts concerning deportation shall no longer be brought before the Conseil d'Etat (Council of State) but before thesaid appeal courts.
Article 7 lays down that the request for asylum of a foreigner who has already been refused the right to asylum, in particular due to the repetition of these requests under different identities, may be refused as manifestly fraudulent and consequently give rise immediately to a deportation order.
The Prime Minister
In view of the report of the Minister of the Interior,
In view of Article 39 of the Constitution,
Hereby Decrees :
The present Bill concerning various provisions relating to immigration, deliberated in the Cabinet after obtaining the opinion of the Council of State, shall be presented to Parliament by the Minister of the Interior, who is appointed to explain the reasons for the Bill and to support its discussion.
PROVISIONS AMENDING GOVERNMENT ORDER No. 45-2658 DATED NOVEMBER
28, 1945, CONCERNING THE CONDITIONS OF
ADMISSION AND RESIDENCE OF FOREIGNERS IN FRANCE
"Any person who has signed a Certificate of Accommodation and has accommodated a foreign national, within the framework of a private visit as defined in the present Article, must report the departure of the hosted foreigner to the mayor of the local authority of the host's place of residence."
"The mayor shall refuse to stamp the Certificate of Accommodation if it transpires, either from the content of the Certificate and the presented documents, or from an inspection of the residence of the signatory, or from other available information, that the foreigner cannot be accommodated under normal conditions, or if the information on the Certificate is inexact or if previous requests from the host reveal fraudulent misuse of the procedure following an inquiry demanded by the Chief of Police from the local police force, where applicable at the initiative of the mayor, or, finally, if the signatory of a Certificate of Accommodation has failed, less than two years previously, to inform the mayor's office of the departure of a foreigner accommodated within the framework of the procedure concerned by the present Article."
"The lack of information cannot be used against the signatory of the Certificate of Accommodation if the signatory establishes his or her good faith or can justly claim serious mitigating personal or family circumstances."
In paragraph 3 of Article 8 of the aforementioned Order, the words "of articles 78-1 and 78-2 of the Penal Procedure Code" are replaced by the words "of articles 78-1, 78-2 and 78-2-1of the Penal Procedure Code"
In Section I of the aforementioned Order of November 2nd, 1945, Articles 8-1 and 8-2 are inserted after Article 8, as follows :
« Art.8-1. The police authorities are entitled to retain the passport or travel document of persons of foreign nationality in irregular legal situation on French territory. In exchange, the police shall give the said persons a receipt which shall be deemed to constitute valid proof of their identity and which shall contain a description of the procedure for returning the retained document when the person leaves French territory".
" Art. 8-2. In a zone situated between the land border of France with the States that are parties to the convention signed in Schengen on 19 June 1990 and a line traced twenty kilometres in front of this border, the officers of the Police Judiciaire (Criminal Investigation Department), assisted by the police constables and deputy agents as defined in Articles 20 and 2-11 of the Penal Procedure Code, may, with the consent of the driver, or, failing this consent with the authorisation of the Public Prosecutor's Office, undertake a summary inspection of the vehicles on the public highway, with the exception of private cars, in the aim of investigating and reporting offences relating to the admission and residence of foreigners in France.
" Pending the authorisation of the Public Prosecutor, if required, the vehicle may be detained for no longer than 6 hours counting from the start of the operations.
" This inspection, which is limited to the time strictly necessary, counting from the authorisation of the Public Prosecutor or from the start of operations, must be recorded in a report : one copy of this report must be given to the driver in whose presence the inspection took place, and another copy must be sent without delay to the Public Prosecutor.
" If this inspection reveal another offence not related to the rules governing the admission and residence of foreigners in France, the specific nature of the inspection shall not constitute grounds to annul the incident procedures."
Paragraph 1 of Article 12 bis of the Order dated November 2nd, 1945 is replaced by the following provisions :
" Except if the presence of the foreigner constitutes a threat to public order, the temporary residence permit shall be granted autmomatically :
Section III of Chapter II of the aforementioned Order dated November 2nd, 1945 is cancelled.
The following paragraph is added to No. IV of Article 22 c of the aforementioned Order of November 2nd, 1945 :
"As from a date laid down by decree in the Council of State, and at the latest on September 1st, 1999, this appeal shall be submitted, under the same conditions, before the President of the Administrative Court of Appeal having jurisdiction over the locality concerned, or before a member of the said court appointed by the President. The same decree lays down the procedure for applying this provision."
The following paragraph has been added to Article 31 bis of the aforementioned Order dated November 2nd, 1945 :
"Fraudulent recourse to the asylum procedure as defined in the present Article shall in particular be deemed to have occurred if several requests for admission to residence under the asylum system have been fraudulently presented using different identities."
Article 35 bis of the aforementioned Order dated November 2nd, 1945 is modified as follows :
"4° Or, after being the object of a detention procedure under one of the above cases, has failed to obey the ensuing deportation order within a period of seven days after the end of the said detention."
In the sixth paragraph, the words "six days" are replaced by the words "five days".
"The individual concerned is detained at the disposal of the court for the time strictly necessary to hold the hearing and pronounce judgment"
"Appeals against the judgments mentioned in the fourth and seventh paragraphs of the present Article may be lodged before the first president of the court of appeal or before the president's delegate, who shall stand in without formality. The right of appeal is granted to the individual concerned, to the public ministry and to the representative of the State in the relevant administrative district (département); this appeal is not suspensive. However, if the appeal is lodged by the public ministry, the dossier shall be transmitted immediately to the first president of the appeal court or to the delegate competent to decide on the matter. The president or president's delegate shall decide without delay and on the evidence presented if there are grounds to give a suspensive effect to this appeal. The individual concerned shall be detained at the disposal of the court during the time strictly necessary for this decision to be pronounced. If the decision gives a suspensive effect to the public ministry's appeal, the individual concerned shall be detained at the disposal of the court until the court has ruled on the substance of the case. The president of the court of appeal or the president's deputy must rule on the substance of the case within a maximum of 48 hours counting from the submission of the appeal."
In part I of Article 1132-70-1 of the Penal Code, after the words "foreigners in France", the following words are inserted: "or, in the case of a foreigner without the travel documents which would permit the execution of the deportation order, the offences mentioned in Article 19 or Article 27 para. 1 of the said Order...."
In Chapter III of Section II of Volume I of the Penal Procedure Code, after Article 78-2, the following Article 78-2-1 is inserted :
"Art. 78-2-1. At the requests of the Public Prosecutor, the officers of the Criminal Investigation Department, assisted if necessary by the police constables and deputies mentioned in Article 20 and in Article 21 No. 1° , may visit premises used for professional purposes, where activities of building, production, manufacturing, transformation, packing, transport, marketing or the provision of services are in progress, and also the annexes and dependences of the said premises, unless they constitute a residence, and may check the identity of each person occupied in any one of these activities in order to verify that these persons are registered in the official payroll and that the declarations required prior to their recruitment have been made to the competent authorities. To this end, the said officers, constables and deputies must, if they so request, be shown this payroll and declaration documents.
"The requests of the Public Prosecutor shall be in the form of written warrants and shall specify the offences, among those mentioned in Articles L. 324-9 and L. 341-6 of the Labour Code, that the Prosecutor intends to investigate and pursue, as well as the premises in which the inspection shall take place. These warrants have a maximum validity of one month and must be presented to the person in charge of the premises or to the person representing the latter."
|Signed : ALAIN JUPPÉ|
By the Prime Minister :
The Minister of the Interior,
Signed : JEAN-LOUIS DEBRÉ