About twelve of these agreements have been signed since 2002 15. With the exception of three or
four States, these agreements in no way concern countries from which France receives large
numbers of migrants. The question of deadlines for responses from the States of origin of
migratory population movements affecting our country therefore remains to be addressed. In
addition, the illustrations provided by the Government in support of its choices are hardly
convincing: the agreement between the EU and Hong Kong is cited, for which the response
deadline is fixed at one month (therefore… thirty days) and that with the Russian Federation, for
which the deadline is twenty days (therefore less than thirty…) with an extension (exclusively) in
case of difficulties of up to sixty days (therefore greater than forty-five…). Yet for many lawyers
in these countries, a period of less than twenty days is sufficient in almost all cases, provided that
the consular authorities are willing to acknowledge whether (or not) a foreigner placed in
detention is one of their nationals16.
The change from thirty-two days (with regard to asylum-seekers only; for all
others the maximum period was previously thirty days) to forty-five days is
nevertheless far from trivial.
On the one hand, periods of deprivation of liberty ordered by the administrative authority
alone (even when subject to the supervision of the ordinary courts) cannot be used lightly; the
use of internment without trial should remain as limited as possible, as a manner of principle. On
the other hand, from a practical point of view, a period of around thirty days can be passed off as
a holiday, thus making it possible to hold down a job. The same does not apply for longer
periods. Accordingly, this worsens the risks of breakdown of the detainee’s social integration (in
terms of both work and accommodation). Yet, is there any need to recall that, rather than being
deported, over half of foreigners placed in detention are freed by virtue of a court ruling or
decision from the administration? For the latter, detention carries the risk of devastating
consequences with regard to their social integration, without serving any useful purpose. Hence
the deep tensions observed in most detention centres after the act of 16th June 2011, which found
expression in acts of despair (hunger strikes etc.) and assaults (in the form of self-harm or
violence to others). This prejudice was in no way counterbalanced by any increase in the
likelihood of deportation.
The question of the length of detention periods cannot therefore be
regarded as definitively resolved; the Contrôleur général recommends that it
should be opportunely revised downwards.
2.1.1.2 Illegally staying foreigners and police custody
In this field, changes have also arisen from European law, in response to which French judges
have implemented the required follow-up measures at the national level.
In 2011, the Court of Justice of the European Union was called upon on
two occasions to give verdicts concerning the compatibility of Member
States’ laws providing for penal sanctions in the form of prison sentences
for foreigners, solely on the grounds of their residence papers not being in
order, and the provisions of the “return” Directive 2008/115/EC.
15
th
For example with Sri Lanka (cf. Official Journal of the European Union no. 124 L of 17 May 2005), Albania (ibid.)
and the Russian Federation (OJ of the EU no. 129 17th May 2007), etc.
16
Such were the findings of the special fact-finding mission set up by the Law Commission of the French National
th
Assembly on detention centres for illegal immigrants and waiting areas (report (rapport) no. 1776, rendered on 24
June 2009), of which “proposal no. 2” consisted of maintaining the detention period at 32 days, in spite of the coming
into force of the “return” directive.
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