We are writing to express our serious concerns about a variety of provisions in the immigration bill currently under examination in the Senate. The memorandum annexed to this letter sets out our analysis and detailed recommendations.
Human Rights Watch is particularly concerned about provisions in the bill that appear designed to facilitate the removal from France of Roma who are citizens of other EU member states, and their compatibility with France's obligations under EU and human rights law.
We are also concerned about provisions that would permit extended administrative detention for terrorism suspects in lieu of compulsory residence. We are further concerned about impact on the right to seek asylum and treatment of child and other migrants resulting from the proposed creation of ad hoc transit zones.
Finally, we believe that the bill represents an opportunity to correct the current lack of a suspensive appeal in the priority asylum procedure.
Accordingly we urge you to take the following steps:
- Strike articles 25 and 49 as incompatible with France's obligations under EU law.
- Amend 47ter to specify in greater detail the elements of the proportionality assessment to be conducted when taking an expulsion measure against an EU citizen on public security grounds.
- Strike the creation of a regime of administrative detention for terrorism suspects (article 41).
- Improve procedural safeguards for compulsory residency orders.
- Strike the creation of ad hoc transit zones (article 6) and all articles limiting the rights of individuals held in transit zones (article 7-11).
- Support a tabled amendment to ensure that all asylum seekers, regardless of the procedure under which their claim is examined, have the right to an in-country, fully suspensive appeal to the National Court of Asylum.
We thank you for your attention to these important issues.
Europe and Central Asia Division
ANNEX: Detailed Analysis of Problematic Measures in the Immigration Bill and Recommendations for Amendment
Measures to facilitate the expulsion of Roma citizens from other EU states
Human Rights Watch has serious concerns about provisions in the bill that appear designed to facilitate the removal from France of Roma who are citizens of other EU member states. The measures create new grounds for removal orders (arrêté de reconduite à la frontière) for reasons of public security, including land occupation and begging. The timing and the focus of this amendment, and statements by government ministers, strongly suggest that it is aimed at Roma.
The bill specifies that the authorities may order the expulsion (arrêté d'expulsion) of an EU citizen whose personal conduct represents a "genuine, present and sufficiently serious threat to one of the fundamental interests of society." This is in conformity with the 2004 EU Freedom of Movement Directive (Directive 2004/38/EC). The bill also requires that removal and expulsion orders on public order and security grounds be subject to an individual assessment of the EU citizens' personal circumstances.
The government pledged to the European Commission to introduce these two provisions following the Commission's steps to begin infringement proceedings against France over its failure to adequately transpose the Freedom of Movement Directive. While the provisions are an important step towards ensuring fair and appropriate procedural safeguards, we remain concerned that the bill does not fulfill entirely the government's obligations under European freedom of movement rules as well as regional and international human rights law. As drafted, the bill does not specify sufficiently the elements of the proportionality test to be applied, and it appears to exclude removal decisions based on certain public order grounds from this requirement.
According to official statistics, 13,241 of the 21,384 foreign nationals removed from France in the first nine months of the year were Romanians and Bulgarians. Of that group, 6562 Romanians and 910 Bulgarians were forcibly removed. The remaining 5,086 Romanians and 683 Bulgarians returned to the countries of origin under the French Office for Immigration and Integration's (OFII) voluntary assisted return program.
There are no official statistics on the proportion of those removed who were Roma. But evidence of a government policy to target Roma for expulsion or return (high-level statements and internal circulars), press reports, and research conducted by Human Rights Watch and other nongovernmental organizations all suggest that the vast majority of Romanians and Bulgarians removed from France are Roma. While some individuals seek out the OFII to take advantage of the program, the fact that many Roma who have participated did so only after receiving an order to leave the country raises serious questions about the voluntary nature of the return.
"Abuse of rights"
The 2004 EU Freedom of Movement Directive guarantees the right of all EU citizens to travel to and remain in another EU country for up to three months without conditions. Long-term stay requires that individuals are employed, self-employed, or have sufficient means to support themselves without becoming a burden on the host country's welfare system.
The 2009 European Commission guidance on proper application of the 2004 Directive is clear that "[o]nly receipt of social assistance benefits can be considered relevant to determining whether the person concerned is a burden on the social assistance system." The mere assumption that a person might become a burden on the social assistance system cannot justify an expulsion measure. The 2004 Directive states that expulsion should not be the "automatic consequence of recourse to the social assistance system" of the host Member State.
Article 25 of the bill establishes the power to impose an order to leave France (obligation de quitter le territoire francais) on EU citizens whose stay in France constitutes an "abuse of rights," defined as renewal of three-month stays for the purpose of staying in France without fulfilling the requirements for long-term stay, and staying in France for the "fundamental" purpose of benefitting from the welfare system. This is on its face incompatible with the Directive.
Comments made by government ministers when announcing the measure singled out Romanian and Bulgarian citizens and made reference to activities and camps associated with Roma. Then-Immigration Minister Eric Besson proposed the measure at a press conference on August 30, 2010, in the context of efforts to "fight more effectively against illegal immigration and human trafficking networks in Romania and Bulgaria." At the same press conference, Interior Minister Brice Hortefeux singled out an increase in crimes committed by Romanians in Paris over the last year and a half. He deplored "women and children spending entire days begging in appalling conditions in order to take their haul to the people who are exploiting them," and the conditions in unauthorized settlements.
In light of a November 2008 ruling by the Council of State that lack of sufficient resources can serve as a justification for a removal order against an EU citizen "even if the concerned individual has not yet received any benefits from the social assistance system," there is a very real risk that this provision will enshrine in law a practice of systematically ordering the removal of Roma legally staying in France on a mere presumption they might one day seek social assistance, an approach incompatible with France's obligations under EU law.
Human Rights Watch has examined over nearly 80 orders to leave French territory (Obligations de quitter le territoire français, OQTF) served on Romanian Roma between August and November 2010. They are virtually identical, using pre-issued forms with the names often written in by hand, and indicating that the individual represents an unreasonable burden on the social assistance system by virtue of being unable to prove sufficient resources. None of the OQTF we examined included individualized information or evidence that the person had received any benefit of any kind.
While there is ample evidence that authorities have systematically used this argument in attempts to remove Roma, there is no indication of a comparable systematic use against non-Roma EU citizens who may have overstayed the three-month limit. To our knowledge, there have not been any large-scale, well-publicized, and centrally mandated operations to identify and remove non-Roma EU citizens. The vast majority of EU citizens ordered to leave France or forcibly removed are from Romania, followed by Bulgaria; as stated above, the vast majority if not virtual entirety of these are Roma. According to government statistics, in 2009 only 580 citizens from all other EU countries combined were expelled.
Threat to public order
While article 47ter of the bill establishes that EU citizens may be subject to an expulsion order (arrêté d'expulsion )only when their personal behavior constitutes a "genuine, present and sufficiently serious threat to one of the fundamental interests of society" - the exact wording of the Freedom of Movement Directive - article 49 expands the power to use a different procedure (the arrêté de reconduite à la frontière ) to remove all foreigners, including EU citizens, deemed to pose a threat to public order, including those "liable to prosecution" for certain crimes such as drug trafficking, human trafficking, profiting from prostitution by other, certain kinds of aggravated theft, exploitation of begging, and illegal land occupation. The latter two categories appear targeted at Roma, taking into account statements from highly-placed government officials linking these offenses to Roma.
The current wording of article 49 would permit a foreigner, including an EU citizen, who has resided legally in France for under three months to be subject to a removal order on a mere suspicion of having committed one the offenses listed above; no conviction would be required.
This proposed measure is in direct contradiction with the 2004 Freedom of Movement Directive, which establishes the above-mentioned high threshold for public order and security removals. In accordance with the Commission's 2009 guidance on the Directive and the jurisprudence of the European Court of Justice, expulsions undertaken on these grounds must comply with the principle of proportionality and be based exclusively on the personal conduct of the individual concerned. These measures cannot be taken on general preventive grounds or justified merely by a general risk.
The fact that different procedures would be engaged does little to change the basic fact: article 49 would allow for removal of EU citizens on public security grounds using a threshold far below that established in the Freedom of Movement directive and confirmed by the European Court of Justice.
The inclusion of illegal land occupation as grounds for removal is particularly troubling. It is worth noting that the Lille administrative court rejected in August 2010 the government's arguments that illegal occupation of land justified expulsion on public security grounds when it annulled at least eleven removal decisions.
There is ample evidence that the government's campaign to dismantle unauthorized settlements, given heightened publicity and impetus by President Sarkozy in late July 2010, has been intrinsically linked to efforts to remove Roma from France. A government circular dated June 24, 2010, ordered prefects and police authorities to "proceed with the eviction of illegal camps" and "adopt removal measures against the illegal occupiers who do not have French nationality and are in an illegal situation." The same circular indicates that police operations to evict illegal camps should be taken as opportunities to verify the residency status of the occupants. Another government circular dated August 5, 2010, suggested a clear policy of systematic expulsions of Roma in connection with camp evictions. It began with recalling President Sarkozy's objectives: "300 illegal camps or settlements should have been evicted within 3 months, with Roma ones as a priority." It goes on to say:
the operations conducted since July 28 against illegal Roma camps have led to a too limited number of removal orders. These operations constitute a strong commitment undertaken by the government ... They require as of now a total personnel mobilization from you and all the services, with priority placed on illegal Roma camps ... The operational approach includes in particular ... evictions of illegal camps and the immediate removal of foreigners in an irregular situation ... These operations should not be limited to dispersal operations.
The government replaced this circular on September 13, 2010. The new circular removed all reference to Roma but failed to prohibit explicitly the priority targeting of camps occupied by Roma.
Evictions of unauthorized Roma camps and squats have continued in recent months, despite the onset of winter. On November 3, 2010, a camp in the center of Lyon and another in Créteil, outside Paris, were dismantled and their inhabitants dispersed. Many of those living in the Paul-Bert camp in Lyon had been issued OQTFs in the weeks preceding the eviction. All 28 adults present at the Créteil camp on the day of the eviction were issued OQTFs. A number of those evicted from the Paul-Bert camp went to live in an abandoned building in the Vaise neighborhood of Lyon, already occupied by Roma families from Romania. Human Rights Watch visited the building in late November and spoke with three families living there; all of the occupants were evicted on December 17, 2010, on the basis of an order from city hall.
Roma are increasingly appealing against OQTFs, according to the migrants rights organization CIMADE. Over the past few months, the administrative court in Lyon has annulled around twenty OQTFs because of the lack of individualized assessment.
The bill introduces the explicit requirement that orders to leave French territory concerning EU citizens for "abuse of rights" (under article 25) and expulsion orders for threat to a fundamental interest of society (under article 47ter) be based on an assessment of the individual's circumstances, "in particular the length of the person's stay in France, age, health, economic and family situation, social and cultural integration in France and the intensity of ties with his country of origin." These procedural safeguards are not included in article 49 concerning removal decisions (arrêté de reconduite à la frontière) on suspicion of having committed certain offenses, leaving uncertainty as to whether the authorities would be required to conduct personal assessments in these cases.
The language in the bill corresponds to the language in article 28 of the 2004 Freedom of Movement Directive. However it fails to specify critical aspects of a proportionality assessment required under the directive.
The European Commission has indicated that the proportionality assessment of an expulsion measure based on public policy or public security grounds should include "the impact of the expulsion on the economic, personal and family life of the individual (including on other family members who would have the right to remain in the host Member State [emphasis in original])" as well as "the seriousness of the difficulties which the spouse/partner and any of the children risk facing in the country of origin of the person concerned."
The European Commission has also emphasized that any kind of expulsion or removal measure based on public order or security grounds should look at the degree of social danger caused by the individual, the nature of the offending activity, and the frequency, cumulative danger and damage caused, as well as the individual's conduct since the behavior was engaged in. According to the Commission, a criminal conviction does not constitute in and of itself grounds for expulsion or removal measures. The Commission clarifies that even multiple convictions do not suffice without further evidence to show that the person's presence constitutes a continuing threat to public security.
- We urge you to strike articles 25 and 49 from the bill.
- We urge you to amend article 47ter to ensure that the proportionality assessment required under the EU free movement directive when taking an expulsion measure against an EU citizen includes, in addition to those already listed, the following:
o The impact of the expulsion on the economic, personal and family life of the individual as well as on other family members who would have the right to remain in France;
o The seriousness of the difficulties which the spouse or partner and any of the children risk facing in the country of origin;
o The nature of the offending activity;
o The frequency, cumulative danger and damage caused by the offending activity; and o The overall degree of threat to public security posed by the individual.
- We also urge you to amend the bill to state explicitly that prior conviction alone does not suffice to justify an expulsion measure and the burden is on the authorities to demonstrate that the individual poses a genuine and present threat.
Administrative detention (article 41)
The bill would create a new form of administrative detention for foreign national terrorism suspects whom the government wishes to deport. Under the terms of article 41, the liberty and custody judge could order the detention of a foreign national terrorism suspect in immigration detention beyond the maximum 45-day period established in the bill (the current maximum is 32 days) for up to six months. If within that time the authorities are unable to deport the individual, either due to the foreign nationals "failure to cooperate" or delays in obtaining the necessary travel documents, the judge could order detention for up to twelve more months. This means such individuals may be detained for as long as 19 months in facilities designed for short-term stays.
This new administrative detention would be used in cases where, under the terms of the draft law, there is a reasonable prospect for executing the deportation and assignment to compulsory residence would not allow for "sufficient control/supervision" of the individual. It could be imposed on individuals who have been convicted of a terrorism-related offense and either subject to a court-ordered deportation (interdiction du territoire français associé à une condemnation) or a ministerial expulsion order upon release from prison (arrêté ministériel d'expulsion).
The government argues that this measure is needed not only when the individual does not have travel documents, but also when the European Court of Human Rights has ordered France to stay an expulsion while it examines an individual's complaint or when the National Office for the Protection of Refugees and Stateless Person or the National Court of Asylum have concluded the individual faces a risk of torture or ill-treatment upon return (while excluding the individual from refugee status). In cases where the French authorities have acknowledged such a risk, placing such a person in immigration detention would violate the right to liberty under the European Convention on Human Rights.
Deprivation of liberty is a serious measure that should only be applied by a court of law, and only if necessary and proportionate to achieving legitimate aims. The government has not demonstrated that the system of assignment to compulsory residence - though far from satisfactory in terms of procedural safeguards - is not a viable alternative. The fact that deprivation of liberty could be the consequence of seeking redress and remedy from the European Court of Human Rights or protection from return to the risk of torture is particularly alarming. This could serve to deter individuals from legitimately exercising their rights under international and regional human rights law.
We are also concerned that the bill does nothing to improve the procedural safeguards or conditions with respect to compulsory residence. Administrative authorities would still be empowered to impose indefinite compulsory residence on the basis of a low standard of proof. Human Rights Watch research in 2006 found that assignment to compulsory residence is often used to facilitate surveillance, to minimize the perceived threat by relocating an individual far from their habitual residence, and to create an unpleasant situation to persuade the individual to make the necessary arrangements to leave the country. We found that compulsory residence orders are sometimes based on unverifiable intelligence reports.
However, subject to appropriate safeguards, Human Rights Watch believes compulsory residence can be an appropriate alternative to removal that places an individual at risk of torture.
To comply with international human rights law, compulsory residence orders should include the following safeguards:
- An order should only be issued by a court (not by the executive branch);
- An order should only be issued following a process in which credible evidence of its necessity is presented to the court and the person subject to removal and the person has an opportunity to challenge that evidence; and
- There should be appropriate access to meaningful appeal and review.
- Orders must be time limited and open to judicial challenge, recission and amendment of conditions on the presentation of new evidence;
- The person subject to the order must be able to maintain family life and be permitted to work.
- We urge you to strike this provision from article 41.
- We also urge you to seize this opportunity to improve the procedural safeguards for compulsory residence orders, instituting, at a minimum, the safeguards listed above.
Articles 6-11 of the immigration bill would both extend the power to detain migrants and asylum seekers in transit zones and further limit the rights of individuals detained in such zones. Article 6 would empower the government to create ad hoc transit zones for the purpose of legally detaining and fast-tracking the asylum claims of a group of ten or more foreigners who have entered France without passing through an established border entry. These zones could be created whether the individuals are in one place or a number of places no further than 10 kilometers from a maritime or land border. The individuals could be held in these ad hoc transit zones for up to 26 days. Article 7 appears to give authorities discretion as to when they must notify individuals detained in these ad hoc zones of their rights.
Human Rights Watch is deeply concerned by the prospect of greater numbers of migrants and asylum seekers being held in transit zones, where they have fewer rights, where their asylum application is considered under a fast-track procedure, and from where they are subject to speedy deportations. Transit zones, which already exist at border points and airports in France, are based on a legal fiction that allows the authorities to treat an individual as if he or she is still outside the country.
Human Rights Watch has documented how unaccompanied children detained in existing transit zones in France are held jointly with adults and deported to countries they merely traveled through or to countries of origin without any consideration of whether their families or child protection services are able to care for them upon return. Children's access to legal representation and remedies while detained in transit zones is severely impaired, and their asylum claims are considered under an accelerated procedure that fails to take account children's vulnerabilities.
We are further concerned that the bill would limit the rights of appeal of all individuals held in transit zones. Article 8 would prohibit raising procedural irregularities that occurred before the first extension of detention at the hearing on a second extension. Article 10 would ensure that procedural errors would not be grounds for appeal against detention in a transit zones except if they are of a substantive nature affecting the rights of the individual.
The bill would also increase the amount of time authorities have to appeal against a decision to release a person from a transit zone from four to six hours (article 11), and establish that providing proof of a place to stay and no intention to abscond cannot alone justify release from a transit zone (article 9).
- We urge you to strike article 6 from the bill. We further urge you to strike articles 7-11 limiting the rights of individuals held in transit zones.
Suspensive appeal in the priority asylum procedure
Human Rights Watch is convinced that this bill provides the opportunity to remedy a serious gap in France's asylum law: the lack of a suspensive appeal to the National Court of Asylum under the so-called priority procedure.
Under the priority procedure, the National Office for the Protection of Refugees and Stateless People (OFPRA) must decide on the application within 15 days, or 96 hours if the person is in detention, compared to an average of 114 days in the normal procedure. The priority procedure is used for asylum seekers from countries France has placed on a list of so-called "safe countries of origin," for those considered a threat to public order, and for those whose application is deemed fraudulent, abusive, or solely intended to prevention implementation of a removal order. It is also often used when rejected asylum seekers ask the OFPRA to re-examine their claims on the basis of new information. The applications for asylum filed by individuals while in detention pending deportation are also considered under the priority procedure.
In 2009, more than 22 percent of all asylum seekers - 8,632 out of 38,803 - were considered under the priority procedure. In the same year, the National Court of Asylum granted protection to over 5000 people the National Office for the Protection of Refugees and Stateless People (OFPRA), a government agency, had rejected.
While asylum seekers can appeal a negative decision by OFPRA to the independent National Court of Asylum, the final arbiter of asylum applications, the asylum seekers can be sent back to their country of origin at any time after the initial review. And since 2007, the National Court of Asylum has refused to consider appeals by individuals who have been sent back to their countries of origin.
The right to an in-country appeal is a fundamental guarantee against returning a potential refugee to persecution, and the hallmark of a fair and credible asylum procedure. The United Nations High Commissioner for Refugees, the European Commissioner for Human Rights, and the United Nations Human Rights Committee have expressed concern about France's priority procedure and have recommended that all asylum seekers have the right to an in-country, fully suspensive appeal. Following its review of France in May 2010, the United Nations Committee against Torture said it was "concerned at reports that 22 percent of asylum applications submitted in 2009 were dealt with under the so-called priority procedure, which does not allow for an appeal with suspensive effect ... the Committee is not convinced that the priority procedure offers adequate safeguards against removal where there is a risk of torture."
- We urge you to support a tabled amendment to ensure that all asylum seekers, regardless of the procedure under which their claim is examined, have the right to an in-country, fully suspensive appeal to the National Court of Asylum.