the ECHR, a brake on the expulsions of radicalized people – L’Express

Mohammed Mogouchkov arrived on French territory as a minor, at the age of 5. “We consider that we cannot remove a person when their private or family life is an obstacle,” explains Christophe Pouly, associate researcher at Sciences Po, doctor of public law and lawyer specializing in immigration and immigration law. asylum. However, in this configuration, the legislator considers that, having arrived in France before the age of 13, this person grew up there. Asking them to leave would have serious consequences for their future, and they are therefore not deportable.” This conclusion follows from Article 8 of the European Convention on Human Rights (ECHR), which gives everyone the right to respect “for their private and family life, their home and their correspondence”. “The provisions cover several cases: people with children or a French spouse, or who are seriously ill without the possibility of treatment in their country of origin and, obviously, people who arrived very young in the territory,” continues Christophe Pouly. Very broad, the provisions of Article 8 of the ECHR were subsequently clarified by the French legislator.”

According to article L611-3 of the Code of entry and stay of foreigners and the right of asylum, the prefect cannot issue an obligation to leave French territory (OQTF) to a “foreigner who justifies by all means habitually reside in France since he reached the age of 13 years at most. This threshold of 13 years, a provision made by the French legislator, has fluctuated over time: “The law of October 29, 1981 only aimed at expulsions and protected people from the age of 10. The Pasqua law of 1993 lowered this age to 6 years, indicates Christophe Pouly. It was the Sarkozy law of 2003 which raised the threshold to 13 years.” The creation of the Code on the entry and stay of foreigners and the right to asylum, in 2005, then generalized this rule by encompassing expulsions, but also deportations to the border and OQTFs.

Mohammed Mogouchkov could thus only have been expelled in three cases: that of “behavior likely to harm the fundamental interests of the State, or linked to activities of a terrorist nature”, or in the case of explicit provocation to hatred . “This is the point that the immigration bill aims at: lifting these absolute protections which prevent the removal of a person who entered national soil before the age of 13,” Beauvau recently explained to L’Express.

According to the lawyers interviewed, this threshold cannot nevertheless be removed, only amended. “France could raise or lower the age under which one cannot be subject to an OQTF, but only at the margin, estimates Thibaut Fleury-Graff, professor at the University of Paris-Panthéon-Assas. Otherwise, it would risk entering into contradiction with the ECHR, which is not possible.” The value of the latter text is in fact “stronger” than French law: according to article 55 of the Constitution, “treaties or agreements regularly ratified or approved have, from their publication, an authority superior to that of laws.” This is the case of the ECHR.

This superiority of the treaty can lead to tensions in terms of welcoming refugees. A person may not be entitled to asylum in France, without being deportable to their country of origin, because it is considered dangerous. “There is a difference between the status and the status of refugee, explains Christophe Pouly. It is possible that, for one reason or another – the behavior of a person in the host territory, for example – we do not “does not grant refugee status to someone. But that does not take away their status as a refugee, if they are still in danger in their country of origin.”

The 1951 Geneva Convention – which contains the essentials of humanitarian rights – clearly provides that refugees can be returned to their country of origin if they constitute a threat to public order. But this provision contradicts another text, written later: the European Convention on Human Rights, which stipulates, in its article 3, that “no one may be subjected to torture or to inhuman punishment or treatment or degrading”. “Let’s imagine the case of someone fleeing war crimes in their country but who has also committed them. This person will not obtain asylum, but will not be sent back to their country of origin either,” summarizes Thibaut Fleury-Graff.

In August 2022, France was also condemned for having violated Article 3 of the ECHR in two judgments, because it intended to expel two Chechen nationals to Russia. The first applicant, born in 1998 and arrived in France in 2004, was sentenced to six years in prison in 2017 and permanently banned from French territory. This conviction followed the discovery of a video in which he pledged allegiance to the Islamic State. Expelled in November 2020, he was reportedly detained in Russia. The second, a Russian also of Chechen origin born in 1981, whose refugee status had been withdrawn after two uneventful stays in Russia. “[L’article 3] does not admit any exemption, even in the event of public danger threatening the life of the nation, the ECHR clarified in its judgment. The same applies even in the event that, as in the present case, the applicant has had links with a terrorist organization.” No sanction, apart from this finding, has been imposed on France.

Another scenario can also arise: that of a person who does not benefit from the right of asylum but whose country of origin refuses to welcome. To do this, the State in question must agree to issue a consular pass (LPC) – which is not always the case. In 2019, the passes awarded by Algeria facilitated 1,652 forced removals. They had only granted 389 in 2020, 34 in 2021, becoming a hot topic of discussion between the two countries in recent years. To the point of becoming a diplomatic lever: last February, in the midst of a diplomatic crisis, Algiers even decided to suspend the issuance of LPCs in Paris.