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Detailed Recommendations

France is positioned to be a global leader in the effort to combat terrorism.  It can best fulfill this promise of leadership by steadfastly upholding human rights principles in all aspects of its counterterrorism strategy.  We urge the French government to take the following steps:

To the Ministries of Interior and Justice

  • Bring France’s legislation into line with its obligations under the European Convention on Human Rights and the Convention Against Torture by jointly commencing legislative reform to ensure that all appeals against expulsions have automatic suspensive effect. In particular, the parliament should:
    • Reform the Code of Administrative Justice to make appeals against ministerial expulsion orders automatically suspensive;
    • Reform the Code of Administrative Justice to make appeals against country designation orders automatically suspensive;
    • Reform the Code on Entry and Stay of Foreigners to make all appeals to the Refugee Appeals Commission automatically suspensive, including in cases involving national security.
    • Reform the Code on Entry and Stay of Foreigners to remove the national security exception to the granting of “subsidiary protection” where a person faces the risk of the death penalty, or torture or other ill-treatment.

To the Ministry of Interior

  • Until such time as necessary legislative reforms are enacted, adopt a policy to suspend all forced removals until all appeals have been exhausted, including the appeal on the merits.
  • Refrain from contacting national consulates to arrange forced removal (that is, to verify nationality or obtain travel documents) until all appeals, including on the merits, have been exhausted.  National consulates should never be contacted while the Office for Protection of Refugees and Stateless Persons (OFPRA) and the Refugee Appeals Board (CRR) are consideri ng requests for asylum.
  • Propose legislation to eliminate the expedited expulsion procedure in “absolute urgency” to ensure that the Expulsion Commission has the chance to review all removal orders and offer its view. 
  • Revise the compulsory residence order system so that such orders are issued by a court, on application by the public prosecutor, rather than issued by the interior minister. Provide that orders must have a maximum time limit. Further, include a system of automatic periodic reviews for compulsory residence orders to consider positive changes in the conditions, such as relocations to areas of habitual residence and granting of work authorizations.
  • Ensure that no one is ever returned where there is a risk of torture in the country of origin, and in those cases where such risk exists use compulsory residence orders, insofar as the conditions imposed are not so severe so as to amount to either a criminal sanction or a disproportionate interference in family life. 
  • Compulsory residence should be not be used merely to facilitate surveillance.
  • Ensure that compulsory residence orders are used as an alternative to forced removal in national security cases where the individual would otherwise be protected against removal by the duration, intensity, and stability of his or her social and family ties in France, and where expulsion would constitute a disproportionate interference with the right of the spouse and children to family life, insofar as the conditions imposed are not so severe so as to amount to either a criminal sanction or a disproportionate interference in family life.
  • Ensure that intelligence reports, or “notes blanches,” are properly sourced and disclosed to lawyers acting for any person subject to an administrative expulsion order.  As a general principle, the reports should discuss the sources and methods used to gather the information.  In cases where revealing the identity of government witnesses would put them at risk, pseudonyms could be used.

To the Ministry of Justice

  • Establish a working group to develop more precise legal benchmarks for the materiality and intensity of the threat to national security justifying expulsion, in particular with respect to speech offenses.

To the Ministry of Foreign Affairs

  • Promote and support legislative change to ensure that all appeals against negative decisions of the OFPRA to the CRR are suspensive.

To the National Assembly and Senate

  • Establish a parliamentary commission of inquiry to examine procedural safeguards in cases of forced removals on national security grounds, with particular emphasis on producing recommendations relating to the materiality and the intensity of the threat that would justify forced removal.
  • The same commission should explore alternatives to compulsory residence that would have a more limited impact on fundamental rights.

To the National Consultative Commission of Human Rights

  • Task the subcommission on National Questions with drafting a recommendation to the government on appropriate procedural safeguards in cases of forced removals on national security grounds, with particular emphasis on recommendations relating to the materiality and the intensity of the threat that would justify forced removal.
  • Task the same subcommission with drafting a recommendation to the government on appropriate alternatives to compulsory residence that would have a more limited impact on fundamental rights.

International and regional organizations tasked with monitoring the compliance of counterterrorism policies with international human rights law play a criticial role.  As the European Union, for example, further develops its strategy to counter violent radicalization and recruitment, human rights authorities should ensure that international human rights law, and in particular standards in relation to due process and family life, are complied with in any effort to produce a common approach to national security removals.  To this end, Human Rights Watch makes the following recommendations:

To the Council of Europe

  • The Human Rights Commissioner should consider developing an opinion or recommendation on best practices in accordance with international human rights law on expulsions based on national security grounds.  The Commissioner’s recommendations should provide guidance both to individual member states and relevant EU institutions on appropriate procedural safeguards in these cases and viable alternatives to removals.
  • The Parliamentary Assembly should consider a follow-up report on its Recommendation 1504(2001) on Non-expulsion of long-term immigrants, and in particular clarify its position regarding the “highly exceptional cases” in which it considered expulsions to be permissible.
  • The European Commission against Racism and Intolerance (ECRI) should consider elaborating a General Policy recommendation on legitimate limits on the right to freedom of speech and protection from racism and discri mination

To the European Parliament’s Committee on Civil Liberties, Justice and Home Affairs

  • Develop an own-initiative report on national security removals with specific recommendations on minimum procedural safeguards and viable alternatives to removal.

To the United Nations

  • The Committee Against Torture should recommend that France institute an automatically suspensive appeal against expulsion orders.
  • The special rapporteurs on freedom of expression, on human rights and counterterrorism, on torture, and on racism should address the concerns detailed in this report and elaborate recommendations in their respective fields of competence with the view of ensuring that violations such as those described here do not occur further.


June 2007

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