France – Constitutional council, 19 October 2018, N° 2018-741 QPC (priority question of constitutionality)

Country of Decision:
Country of Applicant:
Date of Decision:
19-10-2018
Citation:
(France) Constitutional council, n° 2018- 741 QPC, 19 October 2018.
Court Name:
Constitutional council
National / Other Legislative Provisions:
France - French Constitution (Articles 61-1
France - Ordinance n° 58-1067 of 7 November 1958 on the legislation governing the Constitutional Council
France - Regulation of 4 February 2010 on the procedure to follow for priority questions of constitutionality before the Constitutional Council
France - Law no. 2011-672 of 16 June 2011 on immigration
integration and nationality
France - Code de justice administrative (Code of Administrative Justice) - Art L. 761-1
France - Cesda (Code of Entry and Stay of Foreigners and Asylum Law) Art L. 512-1
France - Ceseda (Code of the Entry and Stay of Foreigners and Asylum Law) - Art L.512-2
France - Ceseda (Code of the Entry and Stay of Foreigners and Asylum Law) - Art. L.533-1
France - Declaration of Human Rights (1789) - Art. 16
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Headnote: 

The Constitutional Council decides on the constitutionality of the 48H limit under national law for a third-country national to appeal against an order to be escorted to the border. The Council found that the deadline is in line with the French Constitution, as it guarantees the right to an effective remedy.

 

Facts: 

A priority question of constitutionality has been referred to the Constitutional council regarding the 48H limit applicable to a third-country national wishing to appeal against an order to be escorted to the border.

This limit is provided by the second paragraph of Article L. 512-1 of the CESEDA which is rendered applicable in the context of an appeal against an order to be escorted to the border by being incorporated by reference in Articles L. 533-1 of the aforementioned code and L. 776-1 of the code of administrative justice.

The priority question of constitutionality hence relates to the conformity to the French Constitution of the reference “L. 512-1” found in the last paragraph of Article L. 533-1 mentioned above, as well as to the words “and the order to be escorted to the border decided on the grounds of Article L. 533-1 of the CESEDA” found in Article L. 776-1 mentioned above.

Decision & Reasoning: 

Applicants and interveners argue that those provisions are unconstitutional as the 48H limit disregards Article 16 of the 1789 Declaration of the Rights of the Man and of the Citizen, which provides for the prohibition to violate the right to an effective remedy.

The Constitutional council first recalls that on the grounds of the second paragraph of Article L. 512-1 mentioned above, the third-country national, against whom a return order has been issued, has a 48H limit to appeal. The administrative judge issues a ruling then within 3 months, a time limit reduced to 72H when the third-country national is detained or under house arrest. It goes on to note the applicability of those time limits to a third-country national against whom an order to be escorted to the border has been issued on the grounds of the contested provisions, as they refer to the second paragraph of Article L. 512-1 mentioned above.

However, the Council observes that Article L. 512-1 of the CESEDA provides for procedural guarantees once the order has been notified to the third-country national, such as the right to notify a counsel, consulate or person of his choice, to be notified of the key elements of decisions, to obtain assistance from an interpreter or counsel.

The Constitutional Council hence concludes that the legislator has reached a balanced reconciliation between the right to an effective remedy and the pursued objective to ensure the execution of orders to be escorted to the border while preventing the extension of measures depriving or restricting one’s liberty.

Outcome: 

Declaration of constitutionality

Observations/Comments: 

Summary of the decision by Hélène Soupios-David, Chargée des questions européennes et des études à France terre d’asile for ELENA legal weekly update, ECRE

Text commentary by the Constitutional council (available in French only)

Documentary record by the services of the Constitutional council (available in French only)