Following the death of Filipina, whose body was found in the Boulogne forest, in the Paris region, on September 21, several political figures relaunched the debate on the dysfunctions of the obligations to leave French territory (OQTF). The main suspect in the murder was, in fact, a Moroccan already convicted of rape, under the influence of an OQTF after his release from prison and who spent seventy-five days in an administrative detention center (CRA) before being placed under arrest. domiciliary. awaiting his expulsion, a measure that he had not respected.
The Prime Minister, Michel Barnier, proposed, on Tuesday 1Ahem October, during his general policy speech, “facilitate the exceptional extension of the detention of foreigners in an irregular situation”which is currently 90 days. The Minister of the Interior, Bruno Retailleau, proposes extending it to 210 days in the case of a serious crime. An escalation denounced by associations and jurists specialized in the rights of foreigners, who question the effectiveness of such a measure.
How do these administrative measures work? And why are they criticized?
What is an OQTF?
The obligation to leave French territory, known as OQTF, is an administrative measure that prefectures can adopt to expel a foreigner in an irregular situation from French territory to their country of origin.
It is distinguished from other administrative expulsion measures, such as the expulsion order that can be issued in the event of a breach of public order (even for legally resident foreigners) or even the prohibition of entering French territory (ITF), which is a penalty imposed in the case of a misdemeanor or crime. Added to this are other measures linked to European law, which provide for escorts within the countries of the Union.
Since the so-called “Besson” law of 2011, the OQTF is one of the most used procedures. The “immigration” law of January 2024 extends it to hitherto protected population categories (such as people who arrived in France before the age of 13) and extends their immigration period.executionfrom one to three years.
In 2022, according to the latest available data, prefectures issued 134,280 OQTFs against foreigners, but only 6.4% of them ended in return.
What situations result in an OQTF?
Behind these figures two main categories of situations coexist:
– OQTF pronounced when applying for or renewing a residence permit in the prefecture. In case of rejection, an OQTF is sent by mail with acknowledgment of receipt. The interested party has thirty days to voluntarily leave the territory or challenge this decision before an administrative judge, who has up to six months to rule. This scenario represents half of the cases, with a very low elimination rate (around 2%).
– OQTF pronounced following an arrest, for example during an identity check that reveals the irregular situation of the person, or following a criminal offense that gives rise to a penalty accompanied by the cancellation of the residence permit. The person may be issued an OQTF without a voluntary departure period. Pending her execution, she may be placed under house arrest or detained in preventive detention, with the possibility of presenting a suspensive appeal within a period of 48 hours, on which a judge must rule within a period of 96 hours. Between 2019 and 2022, 5.5% of OQTFs were issued for disorderly conduct and only 1.4% following a criminal conviction, with an expulsion rate of 23% and 45% respectively.
Who are the migrants locked up in detention centers?
Internment, regulated by French and European texts, normally occurs when the authorities consider that there is a risk of flight or disruption of public order. House arrest can also be imposed as an alternative.
In 2023, 16,969 people in mainland France and 29,986 abroad passed through twenty-five administrative detention centers. If the expulsion does not occur within the first 48 hours following the arrest, the freedom and detention judge dictates an extension of twenty-eight days and then thirty days. If a consular pass is to be issued or if the person obstructs the execution of the measure, the detention may be extended for another fifteen days, being extended only once. “But retention is not a phrase, underlines Serge Slama, professor of Public Law at the University of Grenoble-Alpes. It should be considered when there is a possibility of expulsion within a reasonable period of time. Otherwise, the person must be released. »
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Legislation has progressively extended the duration of detention, the average of which in mainland France has increased from 15.5 days in 2018 to 28.5 days in 2023. With consequences for the mental health of detainees and the level of tension in centers, notes Mélanie Louis, head of the Cimade expulsion center: “Today we ask ourselves if detention does not have a punitive function. »
However, this expansion does not mean an increase in the number of expulsions. In 2023, “Almost 1,000 more people have been locked up in France, but the administration has carried out about 1,000 fewer expulsions since the CRA”, yesaccording to the annual report of the associations involved in the CRAs. The overwhelming majority (81%) occur within the first forty-five days of detention, and less than 8% after sixty days.
How can we explain such a low elimination rate?
A large number of experts, as well as several reports, claim that too many OQTFs are issued in the prefecture without the files having been seriously studied.
For Stéphane Maugendre, lawyer specialized in the rights of foreigners and former president of the information and support group for immigrants (Gisti), the systematization of the OQTF in the prefecture, reinforced by the Darmanin circular of November 2022, translates into “make the administrative court the new window of the prefecture”. According to the activity report of the State Council published in May 2024, litigation related to the rights of foreigners accounts for 41% of the total decisions issued in administrative courts. In 2022, these courts voided 18% of the OQTFs presented to them.
In a report from January 2024, the Court of Auditors regrets a practice that “it obstructs prefectures and courts, which can no longer do a qualitative analysis of the situation of each applicant and, sometimes, issue OQTF to people integrated into society.” Overloaded prefectures make legal errors and issue OQTFs against nationals of countries at war who cannot be returned, which “harms the deterrent nature of the expulsion measure”.
The OQTF are inapplicable due to the degraded relations between France and several countries. If the person does not have an identity document, or if it appears fraudulent, the French authorities are required to obtain a consular pass (LPC) from their country of origin to carry out the deportation to the border. This can lead to diplomatic disputes when the affected countries delay the issuance of these LPCs. Between 2021 and 2022, the French government has drastically reduced the number of visas granted to Algerian, Moroccan and Tunisian citizens. This technique has proven to be ineffective, according to the Court of Auditors, which requires rather a coherent policy of cooperation, “if it is possible at European level”.
