"A new law will reduce the rights of foreigners," says Serge Slama

• Gérald Darmanin announced on RTL the presentation “at the start of the school year in September” of a law to lift “legislative reservations” preventing the expulsion of foreign offenders from the territory.

• The Minister of the Interior explained on BFM that he would like this law to abolish the legislative provision according to which a foreigner who arrived in France before the age of 13 is not deportable.

  He clarified that this would only apply in cases of “serious crimes and misdemeanors”.

• To understand what would be the interest of a new law on immigration, "20 Minutes" interviewed Serge Slama, professor of public law at the University of Grenoble.

Barely four years have passed since the promulgation of the asylum and immigration law, known as the Collomb law.

But the new Minister of the Interior had not yet given his name to a text of law.

This will no doubt be done in the fall.

Gérald Darmanin announced on RTL, last week, the presentation, in September, of a law to lift "all legislative reservations" preventing the expulsion of foreign offenders from the territory.

The host of Place Beauvau, in passing, welcomed the progress made “over the past two years” to enforce the OQTFs (orders to leave French territory), agreeing that there were still improvements to be made in this area.

In 2020, less than 10% of OQTFs were applied.

How to explain it?

And what would this bill really change regarding the deportation of foreign offenders?

To find out,

interviewed Serge Slama, professor of public law at the University of Grenoble-Alpes.

Gérald Darmanin has announced a law to lift "all legislative reservations" preventing the expulsion of foreign offenders from the territory.

What is it about ?

These expulsions concern foreigners who have most often been settled in France for a long time or have important family ties as spouses of French people, parents of French children, for example.

They generally benefit from a resident card.

They are accused of acts of delinquency or a characteristic disturbance of public order (terrorism, radicalization, etc.) to justify the expulsion measure.

In association jargon – taken up recently by the Minister of the Interior himself – these measures are referred to as a “double penalty” because these foreigners are expelled in addition to having served a prison sentence.

For a long time, certain categories of foreigners have been protected in whole or in part against these expulsion measures in the Foreigners Code, either because they have family ties with France, or because they arrived young. in France or that they are minors.

These protections, which are old, were reinforced by the “Sarkozy” law in 2003. Nicolas Sarkozy had in fact claimed to have abolished the “double penalty”.

The Darminin project would consist of reducing or removing these protected categories from the Foreigners Code – which is already possible for expulsions in absolute urgency, except for minors.

Is it easily doable?

In absolute terms, the legislator can do this.

But there is still a major obstacle: the right to lead a normal family life guaranteed by the European Convention on Human Rights and the French Constitution.

In reality, most foreigners protected by French law are also protected by article 8 of the ECHR.

It is therefore not as simple as that to remove these protections.

They can evolve, of course.

As we have seen in the past, the separatism law has reduced the protections in the event of polygamy.

Other laws had already made it easier to expel foreigners making speeches – notably sermons – provoking hatred or discrimination or in cases of intra-family violence.

With the Darmanin project, it would be a question of reducing protections, in particular for foreigners who arrived in France before the age of 13.

They have strong ties with our country.

Children of immigrants, they often have brothers and sisters born on the territory and who are French.

Generally, this is a category that is fairly well protected by the European Convention on Human Rights.

The law can evolve but I think that the room for maneuver is narrow enough to respect the case law of the Court of Strasbourg.

Do we know how many people are affected?

We don't know exactly.

There is an annual Home Office statistical report on immigration, but the latest ones do not contain the number of deportation actions taken.

Gérald Darmanin mentions 3,000 “delinquent foreigners deported” in two years but without specifying whether these are only deportation orders or also obligations to leave French territory or bans from French territory, pronounced by criminal courts. .

Anyway, it seems that their number has increased in recent years in connection with terrorism, radicalization...

In 2020, less than 10% of OQTFs, obligations to leave French territory, were applied.

How to explain it?

The OQTF is a deportation measure taken by a prefecture against a foreigner either because it has refused him residence, or because he is in an irregular situation.

Nearly 100,000 OQTFs are adopted each year.

But in practice, only 10,000 to 15,000 are executed.

This is not a new problem.

There are several causes for non-execution of OQTFs.

There are structural problems.

Quite often, it is a problem of consular passes that some states, such as Algeria, issue very little.

This therefore has nothing to do with French law: it is a problem of negotiation with the countries of origin and of the refusal of certain countries to take back their nationals.

A new law won't change that.

What other issues prevent OQTFs from running?

He sometimes has administrative problems, places in detention, plane tickets, organization... But there are also releases ordered by judges, the administrative judge or the judicial judge, if they notice a problem of procedure or illegalities.

So a new law won't be able to improve things?

We already have half a dozen laws that have tried to improve the execution of OQTFs and that hasn't changed much.

I am absolutely convinced that after the Darmanin law, the effectiveness of the distancing measures will not increase substantially because this has already been the case for the Besson, Hortefeux, Valls, Collomb and other laws.

In reality, a new law will not aim to increase their efficiency but to reduce the rights of foreigners.

What should be done then?

If we want to increase the rate of execution of OQTFs, we must take less.

You should be sure to be able to execute the OQTF before taking it, in particular to be sure to obtain a consular pass.

Otherwise it is useless – except to produce irregularity.

Today, if a foreigner applies for a residence permit at the prefecture, and it is refused, they are notified at the same time of an OQTF in the same decision.

But he can appeal to the administrative court.

And there, we leave for several months of litigation.

In reality, by the time the OQTF becomes final, almost a year has passed.

And the situation could change.

The problem is there: the OQTFs are taken too early in the procedure.

The solution is simple, it is necessary to produce less "without papers".

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