France – Constitutional Council decides on the constitutional validity of appeal deadlines against return orders

Friday, October 19, 2018

On 19 October, the French Constitutional Council delivered its decision on the constitutionality of the deadlines to appeal against return orders under French law.

According to the provisions of the Code of Entry and Stay of Foreigners and the Right to Asylum (CESEDA), third-country nationals, who are presented with a return order, may challenge that decision by appealing within a deadline of 48 hours after being notified with the decision. A priority question of constitutionality was referred to the Constitutional Council, regarding the accordance of the legal provisions establishing the deadline with the constitutional right to an effective remedy.

According to the applicant and the interveners, any provision establishing such a short deadline disregards the safeguards of Article 16 of the 1789 Declaration of the Rights of Man and of the Citizen, as the 48-hour time limit for a foreign national to appeal against a return order is too short to guarantee the effectiveness of the appeal, particularly when the person is detained. Moreover, legislation does not provide sufficient guarantees to counterbalance the strict time limits.

The Council first stated that the provision of the 48-hour deadline ensures the execution of return orders and avoids the prolongation of measures restricting the liberty of foreign nationals, be it administrative detention or house arrest. In addition to this double objective, the Court also noted that French legislation has included legal safeguards in the case of appeals against deportation orders. The relevant provisions of CESEDA require that a decision to leave the French territory is communicated in a language that the foreign national understands, while the latter must be able to notify their legal counsel or consulate. The law also requires that the foreign national is informed of their right to seek legal and interpretative assistance.

Notably, the Court observed that it is the responsibility of administrative authorities, particularly when the foreigner is under any form of detention, to ensure the effectiveness of the aforementioned legal guarantees. Therefore, in light of the existence of legal safeguards prescribed by law and the need to balance two different objectives, namely the execution of return orders and the non-prolongation of restrictive measures, the Court concluded that the 48-hours deadline to appeal cannot be considered unconstitutional.

Based on an unofficial translation by the ELENA Weekly Legal Update. Many thanks to Hélène Soupios-David, Chargée des questions européennes et des études at France terre d’asile, for helping us with the summary of the decision.


This item was reproduced with the permission of ECRE from the weekly ELENA legal update. The purpose of these updates is to inform asylum lawyers and legal organizations supporting asylum seekers and refugees of recent developments in the field of asylum law. Please note that the information provided is taken from publicly available information on the internet. Every reasonable effort is made to make the content accurate and up to date at the time each item is published but no responsibility for its accuracy and correctness, or for any consequences of relying on it, is assumed by ECRE.



Effective remedy (right to)
Procedural guarantees