Special handbook for those without valid identity papers
07.Jul.02 - When someone without valid identity papers is arrested, the authorities may choose one of two alternative courses of action. These courses of action are utterly different in their consequences and utterly different in terms of procedure.
- option 1: magistrate's court (immediate appearance before a magistrate's court for illegal residence: the defendant is then generally liable for three months' imprisonment as well as being banned from French territory. The defendant then enters the following procedural process: detention prior to expulsion. For more information on how this procedure starts, please refer to the HANDBOOK FOR ACTIVE DEMONSTRATORS which describes the procedure relating to magistrates' courts. Please note that release prior to trial (if an immediate appearance is refused) is less likely where the defendant lacks valid identity papers as the guarantees presented are always considered insufficient. - option 2 (more usual): administrative procedure which we shall describe here. This puts the defendant in a system specifically designed to deal with foreigners.
It is worth noting that the choice of one option or the other is the authorities' alone. It relates to practical issues such as availability in detention centres and magistrates' workloads.
A person without valid identity papers arrested in France whose presence has been registered by the authorities of another Schengen country (because they have requested residency of that country or been arrested there) will follow the same procedure as everyone else, except that he or she will then to be sent back to the last Schengen country where his or her presence has been noted. The authorities of that country will be responsible for expulsion.
In order to maximize chances of avoiding arrest when without valid identity papers, please read the practical advice at the end of this handbook.
When someone without valid identity papers is stopped, they are taken to a police station for an identity control ("contrôle d'identité"). They are then held under arrest ("garde à vue" procedure) and charged with not having a valid residence permit. The lack of a residence permit ("carte de séjour") is an offence in France. During the time they are being held at the police station under "garde à vue" procedure, they will be informed that an order has been issued for their deportation ("Arrêté Préfectoral de Reconduite à la Frontière", APRF), unless one has been issued previously (on the occasion of a previous arrest or when refused a residence permit, a measure which leads to a formal invitation to leave France within a month ("Invitation à Quitter le Territoire") which in turn leads automatically to an APRF after that month has passed).
If you are notified that an APRF has been issued, you must immediately make an appeal before the Administrative Tribunal ("Tribunal Administratif") in order to obtain its annulment (see form below). You may make this appeal by yourself. The CIMADE, an NGO which maintains a presence in almost all detention centres, will help people without valid identity papers complete the formalities surrounding this appeal.
The next step is that a person without valid identity papers, having received an APRF, will be removed from the police station to a detention centre. He or she must follow two courses of action in parallel whilst detained at a centre.
I Procedures
A - Appeal before the administrative tribunal
This appeal is suspensive, i.e. as long the tribunal has not considered a defendant's appeal, that defendant cannot be expelled. This is one reason why it is imperative to make such an appeal. Another reason for making all possible appeals is that an appeal will protect you against the argument that you expressed no disagreement with a decision taken.
Once the APRF is issued, you have 48 hours to lodge your appeal. It appeal must be lodged before the nearest Administrative Tribunal and it may be lodged 24 hours a day. (If the APRF had been received by mail, which is not the case here, then you would have had up to one week to appeal against it). The Administrative Tribunal is bound to judge an appeal within 48 hours of its being lodged, otherwise you are released. At the Administrative Tribunal, the person without valid identity papers is considered the plaintiff (since they are protesting a decision). There are two ways of obtaining the annulment of an APRF. One can reject the decision itself. Or one can reject the country of destination. If the APRF is annulled on either grounds, the whole procedure is brought to an end. The individual concerned is released and a residence's permit must, in principle, be granted him or her. If the APRF is confirmed, there are no other suspensive means of rejecting it.
Form of an appeal against an APRF
Family name and first name............................................
Date of appeal............................................................
Date and place of birth..................................................
Nationality................................................................
Address....................................................................
Monsieur/Madame le Président Tribunal Administratif de.....
Par la présente, je conteste l'arrêté de reconduite à la frontière qui vient de m'être délivré.
Je dépose un recours contre cet arrêté et/ou contre le pays de renvoi.
Je souhaite être entendu(e) par votre tribunal pour exposer ma situation.
(signature)
B - "35bis"
This procedure takes its name from a clause in a law governing foreign residents (Edict of 1945, Chevènement or Réseda Law) which covers administrative detention (the law specifies "in a place other than those dependent on the Prison Authority) for foreign citizens awaiting expulsion ("reconduite à la frontière"). The Prefect of Police may detain a person awaiting expulsion for up to 48 hours in such a place (detention centre, police headquarters basement, depot, police cell, even a hotel room).
In order for the expulsion to proceed, the police must obtain a safe-conduct from the destination country (usually the foreigner's country of origin). In order to obtain this document, the foreigner is usually presented before his country of origin's consular officials who deliver the document in question. It is possible to put pressure on the consulate (telephone calls, faxes, demonstrations and so on) in order to get them to refuse to issue the safe-conduct.
If the foreigner has not been expelled within 48 hours, a judge called a "juge délégué" must rule as to the necessity of maintaining him or her in detention. This audience is held at a tribunal called the Tribunal de Grande Instance.
The judge must choose between three courses of action.
1- according to the law, in certain exceptional cases, where the person concerned presents sufficient guarantees ("garanties de représentation") ( at least a passport, a certificate from someone establishing that they are prepared to house them or a rent receipt if they are tenants), the judge may give a verdict of house arrest pending expulsion. If this happens, the police keep the person's passport and the person can be summoned for expulsion. In practice, the person is released, but the police have his or her passport, which makes subsequent expulsion much easier to execute.
2- The judge can give a verdict of 5 days' further detention, which what happens most frequently.
3- The judge can under certain circumstances cancel the whole procedure at the detained person's request or at his or her lawyer's request, the lawyer providing the court with evidence (preferably written evidence) justifying annulment. The evidence in question relates to procedural irregularities over the whole course of events, including initial questioning, "garde à vue", notification of APRF and detention. The following factors are considered irregularities:
a) unjustified identity control b) identity control justified, but only by circumstances unrelated to the reasons which prompted initial questioning c) APRF not notified, or notified in an irregular manner d) irregular means of detention e) person detained not informed of his or rights, including entitlement to free legal representation and interpretation
It is unusual for a judge to cancel the whole procedure, but this something which must absolutely be attempted as there are always a considerable number of irregularities in such procedures because of general police carelessness. If the procedure is annulled, the person is released and the police may not retain his or her passport. However, if the APRF has not been annulled by the Administrative Tribunal then it remains valid and can no longer be appealed against in case of subsequent arrest.
If the judge's decision is not satisfactory, the lawyer must be asked to make an appeal against it. N.B., the lawyer will only be able to use written conclusions (evidence) provided for the court in the appeal hearing - which is why it is important to insist that he or she should provide such evidence in the first hearing.
If, after five days in a detention centre, the expulsion has not taken place, the authorities (the "préfecture") again asks the judge ("juge délégué) to extend the detention period by another five days. The procedure is exactly the same as before, but the extension is only granted, in theory, if the alien has concealed information possession of which would have facilitated his or her expulsion, for example concealed his or her identity, his or her nationality. In theory, the authorities must show that they are able to execute the expulsion order within the additional five-day period (this is not difficult, all they are required to do is provide flight times).
II Advice for those without valid identity papers
In order to avoid situations likely to lead to your being questioned by the police:
- use valid tickets when travelling by public transport (ticket inspections on public transport are the source of a large proportion of arrests; if you possess a valid ticket, at least in theory, the inspectors may not call the cops and they are not entitled to check your identity papers.)
- Avail yourself of social service entitlements despite the lack of valid identity papers, but be prudent in your dealings with the authorities (town hall, bank, unemployment office, family allowance service, social security); avoid going to public offices alone...
- For the same reason, it is obviously important to go with someone if you are summoned to an appointment at police headquarters ("prefecture"). Never give originals of any documents you are required to produce, always photocopies.
- If you are summoned to the deportation office ("bureau des expulsions de la prefecture"), do not go or only if you have been provided with an assurance that you will be allowed to leave freely.
If you are arrested:
- Do not sign any document, from the first moment of questioning, right up till your trial, however strongly the police may insist.
- Request interpretation. If the police say you speak French, tell them you do not understand it well, particularly not complicated legal terminology and/or that you cannot read it. If no interpreter is provided on request, tell the lawyer and the judge/magistrate.
- Ask for a lawyer. This costs nothing. The lawyer is paid for by legal aid. Make sure you tell the lawyer everything that has happened since you were first stopped, in detail.
- Tell your family and friends as precisely as you can, as soon as you are detained, how you were stopped (precise location, exact time, official grounds for questioning).
- Go and see the CIMADE representatives in the detention centre. If this proves impossible, lodge an appeal against the APRF within 48 hours of notification. If nothing else, write "I, the undersigned, appeal against the decision dated ... " ("Je soussigné fait appel de la decision du... ") and insist the detention centre authorities pass this appeal on to the tribunal (insist on a written receipt).
- During the 35bis hearing, do not say that you refuse to leave; nor that you are prepared to leave but not to go back to your home country; nor that you will not leave until all avenues of appeal have been exhausted.
- Tell the magistrate (judge) your circumstances.
- If you are not released, insist that the lawyer lodges an immediate appeal, and in any case before you are returned to the detention centre.
- Consider whether you are prepared to hand your passport over to the authorities ("Préfecture") in exchange for house arrest ("assignation à residence"). Tell your lawyer of your decision. Also tell your lawyer whether you will refuse to embark on an aeroplane, train or bus if deported (the penalty for refusal is usually 3 months' imprisonment). Tell your friends or family of your decision so that they can support you in your decision.
III ADVICE TO FRIENDS AND FAMILY OF PEOPLE IN DETENTION
Evrything goes very fast. You will receive news of someone's detention shortly before they appear in court (usually the day before). It is important to consider what might happen in advance and to have discussed various possible courses of action: mobilizing large numbers of people in court, whether at the Administrative Tribunal or at the 35bis hearing (these are public hearings); defence strategy (whether or not to hand over passport). You will have the option of two alternative strategies: obtaining house arrest ("assignation à residence"), which implies giving up the passport to the authorities and facilitates deportation in case of subsequent arrest; or aiming to have the entire procedure annulled. Often, lawyers prefer the first option. You will need to insist that they aim for annulment while also going for, as a second choice or if immediate release is unobtainable, the house arrest option. In any case, it is preferable for the passport to remain with a friend or relative who can produce it before a magistrate as necessary and releases it to the authorities only if house arrest is obtained.
In practice therefore, the necessary steps are:
- call the detention centres nearest the place where the person concerned has been stopped for questioning. Try to speak to the person directly (detention centres are all equipped with public telephones; anyone can call these; the detainees pick up the phone themselves.)
- Once you have discovered the whereabouts of the person concerned, try and visit them, bring them a few belongings. Discuss with them what strategy they would like to pursue and in particular whether they want to hand over their passport in exchange for house arrest; whether they aim to refuse to embark in case of deportation, given that there is a risk of three months' imprisonment and that a refusal is considered an offence? Make sure the person concerned has lodged an appeal against the APRF and do so for them if this has not been done. Even if the deadline has passed, it may be useful to lodge this appeal because the Tribunal will have to issue a verdict stating that the appeal has come too late, which in itself will delay deportation.
- Telephone the Clerks at the "Tribunal Adminstratif" and at the 35bis bureau of the "Tribunal de Grande Instance" in order to find out exactly when the person concerned came to court; in order to be able to attend hearings, which are always affected by the presence of friends and relatives so that the person concerned is not alone with the police authorities and the magistrate; in order to be able to talk to lawyers before hearings and provide lawyers with guarantees ("garanties de representation") (for instance, if the person concerned is staying with someone, it is always better for that the person they are staying with to be present at a hearing or, at the least, that they provide the court with a written statement that they are housing the person concerned, together with a copy of a bill and a copy of their identity papers). The court will also take into account any documents proving the person concerned's status and circumstances (proof of employment, health documents, marriage certificate or "certificat de concubinage", acknowledgement of paternity or maternity, evidence that children are in school...) At a 35bis hearing, demand that the lawyer plead annulment, that the lawyer should take care over the passport issue, that the lawyer should provide the court with a written statement of evidence, that the lawyer should lodge an appeal if the verdict is unsatisfactory.
N.B.
No originals should fall into the hands of the authorities (Prefecture) as these will be kept.
The person's passport should only be given to the authorities (Prefecture) in exchange for house arrest.
It is extremely important to remain vigilant as to where documents relating to the person concerned end up during the hearing. Once the authorities obtain a document, they never return it.
Plan for a second 35bis hearing five days after the first, according to the same plan. Take care over the deadlines for appealing against the verdicts of these two hearings.
If the person concerned has decided to refuse embarkation, ask them to contact you as soon as they know when they are to be expelled. They may not be told in advance. Find out days and times of flights to their country of origin.
Regarding action in airports, see "Practical Handbook for Airport Intervention", published by CAE (caeparis@free.fr), 21ter rue Voltaire, 75011 Paris, tel/fax 01 53 79 12 21). This brochure is available on the Internet in French and in English at bok.net/pajo/ouv/cae.
the Legal Team