II. Context

Transit Zones: A Legal Fiction

A transit zone (zone d’attente) is a legal fiction that allows France to treat a person physically in the country as if he or she is still on the outside. Although transit zones are located at border points or airports where a person would first enter the country, the concept has been broadly defined to allow a person held in the transit zone to go to places such as hotels and hospitals without ever legally entering the country, similar to a floating bubble.[3] In the case of Roissy Charles de Gaulle airport, for example, the transit zone includes hospitals around Paris, as well as a courtroom located more than 20 kilometers away from the airport.[4]

The transit zone is a migration control tool that provides a place to assess whether a person detained there fulfills the conditions to enter France and, in case that person fails to do so, to facilitate speedy removal.[5] Foreigners who are not permitted to enter France are detained in a transit zone until their removal, they obtain permission to enter the territory, or for the duration of the examination of their asylum claim. The maximum time of detention may not surpass 20 days.[6]

The French government has repeatedly argued that persons held in the transit zone are subject to different laws because they have not entered France. In reality and especially in the case of unaccompanied children, this means they have fewer rights. Laws around transit zones make almost no distinction between an adult and an unaccompanied migrant child. Transit zones are a legal black hole for unaccompanied migrant children where their status as migrants prevails over their protection entitlements as children without caregivers.[7]

Transit zones are the only place in France where unaccompanied children are detained jointly with adults. They are the only place from where children can be forcibly removed to any country they transited or where they can lawfully enter. French national law forbids the deportation of unaccompanied migrant children “on French territory,” but children held in the transit zone are exempt from this protection as they are not entitled to the same set of rights as those “who have entered.”[8] Unaccompanied migrant children held in the airport transit zone may be deported to countries where none of their family members are present.[9] Also, a person who seeks asylum in a transit zone, in contrast to a person “on French territory,” is subject to a fast-track assessment.[10]

In contrast to the government’s reasoning, numerous courts, including the European Court of Human Rights, have held that “despite its name, the international zone does not have extraterritorial status” and that “holding [persons] in the international zone of Paris Orly Airport made them subject to French law.”[11] The French court of cassation stated in a recent decision that “a child held at the Roissy Charles de Gaulle airport transit zone is de facto on French territory,” and gave the children’s judge the powers to order the child’s entry into France if the child is in danger (see chapter IV for a discussion of the children’s judge’s mandate).[12]

The government has also claimed that persons held in the transit zone are not deprived of their liberty because they are not on French territory or because they can leave anytime by agreeing to their removal or onward journey.[13] French immigration ministry and border police officials further maintained in a meeting with Human Rights Watch that persons held in the transit zone were not “detained” but only “held” and that they had the choice of leaving at any time for a country where they would be admitted.[14]

The European Court of Human Rights has countered the government’s claim that persons held there were not detained, stating that “holding the applicants in the transit zone of Paris Orly Airport was equivalent in practice, in view of the restrictions suffered, to a deprivation of liberty” in the sense of article 5(1) of the European Convention on Human Rights.[15]

The arbitrariness of the transit zone’s legal status becomes further apparent in the testimonies of two unaccompanied children who told us they were placed in the Roissy airport transit zone after they entered French territory, a scenario not provided for by law. 

I wanted to fly to the UK.... I got through all the passport checks but when I wanted to board the plane I got caught before boarding. They took me to the police.... They asked me how long I had stayed in France, I said two weeks.... I signed the papers. The interpreter said these were papers to sign so that I could sleep in the hotel. I didn’t read what I signed and I didn’t understand.[16]

Another boy who was 17 at the time of his arrival told us he slipped past the passport checks, which meant he was technically on French territory. Nevertheless, he was subsequently placed in the transit zone:

I went to the general passport control and I slipped past like that... Then I went to police [in the arrivals hall] and presented myself.... I had to sign papers but I didn’t have time to read them. That moment I was scared and didn’t want to return. I signed because they wanted me to sign.[17]

The United Nations Convention on the Rights of the Child obliges the French authorities to always act in the child’s best interests and to afford special assistance and protection to children without family, as well as to those who seek asylum.[18]

The UN Committee on the Rights of the Child, the body that oversees the Convention’s implementation, made it clear that these obligations apply wherever a state exercises jurisdiction, which includes an airport transit zone:

State obligations under the Convention apply to each child within the State’s territory and to all children subject to its jurisdiction. These state obligations cannot be arbitrarily and unilaterally curtailed either by excluding zones or areas from a State’s territory or by defining particular zones or areas as not, or only partly, under the jurisdiction of the State. Moreover, State obligations under the Convention apply within the borders of a State, including with respect to those children who come under the State’s jurisdiction while attempting to enter the country’s territory.[19]

Acknowledging a state’s interests in controlling its borders, the Committee has nonetheless held that “non-rights-based arguments such as those relating to general migration control, cannot override best interests considerations.”[20]

The Importance of Roissy Charles de Gaulle Airport

France’s principal and Europe’s second largest airport, Roissy Charles de Gaulle airport serves 60 million passengers yearly, making it a main entry point into Europe’s borderless zone, the Schengen area. It counts more than half a million aircraft movements per year, connecting 470 destinations in 110 countries. The airport is also a major stop-over point for long-haul flights crossing through Europe.[21]

There are more than 70 transit zones in France and its overseas territories. Roissy airport is the most important transit zone: around 90 percent of all foreigners in transit zones are kept in Roissy airport, the equivalent of more than 14,000 persons per year.[22]

Roissy airport transit zone includes a detention center for 164 persons, known as Transit Zone for Persons with a Pending Procedure no. 3 (Zone d'Attente pour Personne en Instance n°3, ZAPI 3), located on the outskirts of the airport zone in front of a runway. Prior to being detained in that detention center, non-EU nationals may also be kept in police lock-ups within airport terminals. Unaccompanied children below age 13 may also be detained in hotels near the airport. In early 2008, because the number of detainees exceeded capacity, authorities detained migrants in large airport hangars.[23]

Procedures for Unaccompanied Migrant Children at the Roissy Transit Zone

The following chart is a simplified overview of the official system for dealing with unaccompanied migrant children who are not permitted to enter France, and describes the mandate of institutions that intervene on their behalf. A child refused entry is detained in the transit zone. While held there, the child is, in theory, represented by a guardian, may file an asylum claim, is brought before a judge who reviews the detention after four days, may be released and permitted to enter France, or may be deported to the country of origin or last country of transit.

1. Unaccompanied migrant children who do not fulfill conditions to enter France are denied entry and detained in the airport transit zone.

2. While detained in the airport transit zone, the child may be deported any time to the last country of transit, or his or her country of origin.[24]

3. Airport border police are required to inform the public prosecutor immediately about the presence of an unaccompanied migrant child.The latter then appoints a guardian for the child, an ad hoc administrator, who assists and represents the child during all administrative and judicial procedures. In practice, children may be deported before their ad hoc administrator arrives at the airport.The ad hoc administrator also represents the child during his or her detention review and the asylum interview.[25]

4. An unaccompanied child may request to enter France on the grounds of asylum. The French Office for the Protection of Refugees and Stateless Persons’s (Office Français de Protection des Réfugiés et Apatrides, hereafter "Office for Refugees") assessment of the claim is limited to determining whether or not it is “manifestly unfounded.” The office issues an opinion to the Ministry of Interior, the decision-making body.[26] While the child’s request is being examined, he or she may not be deported. If the request is granted, the child receives permission to enter France and submit a regular asylum claim.[27] If rejected, the child may appeal to the administrative tribunal (tribunal administrative) within 48 hours. The child is protected from deportation during the appeals review. If the child does not appeal a negative decision or if the appeal is denied, the child continues to be held in detention and may be deported at any point in time.[28]

5. The children’s judge (juge des enfants), a specialized judiciary for children in criminal and civil proceedings, may intervene any time if a child in the airport transit zone is considered to be in danger. The judge can request protection measures, which would lead to the child’s access to French territory for family reunification or placement in care. The child can request the judge’s intervention or the judge can exceptionally intervene on his or her own initiative, upon alert by any other person.[29]

6. The liberty and detention judge (juge des libertés et de la détention) reviews the legality of the child’s detention in the airport transit zone for a first time after four days, and if detention is extended and the child has not been deported, again after a maximum of eight days.[30] The child is present at the court hearing, represented by his or her ad hoc administrator and a lawyer (in most cases court-appointed), and if needed, assisted by an interpreter.[31] The public prosecutor may appeal the judge’s decision to free the child and request the child’s continued detention. The child’s ad hoc administrator may also challenge the judge’s decision to extend detention and the appeals court (cour d’appel) rules on these appeals.[32] The total length of detention in the transit zone may not surpass 20 days, at which point persons must be released and granted access to French territory.[33]