At the end of April 2024, Marine Le Pen traveled to Mayotte, four days after the launch of operation Place Net aimed at combating insecurity and irregular immigration. Faced with residents, she promises to “twist the neck” of immigration from the Comoros. Already the previous year, on the set of BFMTV, Jordan Bardella proposed to “suspend transfers of private funds to the Comoros […] and development aid to the Comoros as long as they refuse to take back their nationals.
In France, the rate of implementation of obligations to leave French territory (OQTF) is around 10% in 2022. These RN proposals aim to influence countries, including Morocco and Algeria in particular, which refuse to welcome their foreign nationals, expelled from French territory. Are they applicable?
“Serious legal risk”
“Legally, suspending development aid does not pose a problem,” says Benjamin Morel, lecturer in public law and constitutionalist. These are voted on in the budget each year. They represent nearly 15 billion euros in 2022, and are managed by the Quai d’Orsay and Bercy.
The freezing of transfers of private funds to foreign countries could violate European Union law. Article 63 of the Lisbon Treaty prohibits “all restrictions on capital movements and payments between Member States as well as between Member States and third countries.”
Some exceptions persist, such as reasons “linked to public order or public security”, but above all “financial sanctions in order to prevent and combat terrorism or on the basis of decisions adopted within the framework of foreign policy and common security. This made it possible to freeze Russian capital transfers following the invasion of Ukraine.
Informal flows
“There is a serious legal risk,” adds the constitutional expert. “This could amount to an attack on private and family life and pose a problem for the Constitutional Council and the European Court of Human Rights.” Especially since the measure could prove insufficient. Half of the flows circulate informally according to the World Bank, making them more difficult for the authorities to trace.
“The question that arises is that of the application of French law, thinks Benjamin Morel. How can we force States to repatriate their nationals?” At the end of 2021, France had halved the number of visas granted to Moroccan nationals. The attempt at pressure – sometimes also mentioned on the side of the RN – had led to a diplomatic quarrel with Rabat. Before the French government backpedaled, two years later, by lifting all restrictions.
Accelerate expulsions in France
In a bill, tabled at the end of 2022, the far-right party also proposes to accelerate expulsion following an OQTF by lowering the period for voluntary departure to forty-eight hours.
The measure is inapplicable as it stands since it would violate European Union law. The latter provides that “when a State takes an expulsion measure, the national has a voluntary departure period of seven to thirty days”, explains Marie-Laure Basilien, professor of public law at the University of Lyon 3. In France , this period is thirty days, except when the OQTF is issued without a period of voluntary departure, in the event of “disturbance to public order, refusal to issue a residence permit or in the event of a request considered unfounded” , she gives as an example.
A person in an irregular situation “must have time to lodge an appeal – which is recognized by international and European instruments for the protection of human rights – against the removal measure, particularly if there is a risk of refoulement” , adds the professor of public law.
The RN also wants the OQTF to be extended to minors. “We do not have the right to send them back alone, it is an essential violation of the protection of the rights of the child,” assures Marie-Laure Basilien, as provided by the International Convention on the Rights of the Child. Only the President of the Republic, guarantor of international treaties, can denounce such a convention. “However, he may be removed with his parents if they are both expelled,” specifies French law.
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