By Alain Couderc, Lawyer (Lyon)


  The recent reform of asylum law in France, which came into force on 1 November 2015, marks a new stage in the assimilation of asylum seekers and migrants into common law. It also throws a glaring light on the general suspicion towards those seeking international protection.
This is made clear in the preamble to the draft law where it claims that the previous instrument created an 'incentive to divert from the asylum procedure in favour of immigration'.
As of now, France's new asylum procedure, while containing certain advances, means the State is better able to control asylum seekers, the majority of whom are facing rejection[1]. This control is made possible through the creation of instruments that enable 'easier and faster identification of unfounded asylum applications' (preamble to the draft law) and obviously deportation with the utmost speed of those applicants designated as fraudulent.
One of these instruments is so ambiguous that it both provides official demands for progress in the reception of asylum seekers while at the same time restricting their rights.
Noting the very real observation that the reception system for asylum seekers is completely saturated (in 2014, France had 24 689 places in reception centres which is enough for just 33% of asylum seekers), the reform has put in place a restrictive and prescriptive accommodation instrument.
The new law is being presented as a transposition of the Reception Conditions Directive (2013/33/EU of the European Parliament and of the Council of 26 June 2013). It provides a national accommodation plan for asylum seekers that sets out how accommodation is to be divided over the entire national territory. This plan must then be rolled out in regional plans by the préfets.
In concrete terms, the asylum seeker presents at the OFII (the French immigration and integration office) which will order him or her to go to a specific accommodation centre among the available places in the département or, if there are none, somewhere else in France. The asylum seeker then has five days to present at the assigned accommodation centre.
While the idea of offering shelter to every asylum seeker is commendable (assuming the system works well), the legal means used raise serious questions regarding the violation of certain fundamental rights.
As such, the restrictive, obligatory and inflexible nature of the accommodation principle amounts to a violation of the freedom of movement.
The issue is determining if this violation is justifiable in light of the reasons for its existence, namely offering material reception conditions that are fit for purpose.
It should be noted, however, that prior consent of the asylum seeker is not required.           
The law does not prohibit the separation of families either, giving State agencies full discretion in this regard.
There is also no possibility for exceptions to be made for asylum seekers wishing to reside with third parties. Yet as everyone knows, and the legislator must in principle be aware of the fact, asylum seekers and new arrivals would prefer to be accommodated with family members or people from their community for material, emotional and psychological reasons.
This lack of flexibility in the instrument reveals itself through the harshness of the penalty in cases where the accommodation allocation is not adhered to.
Firstly, the asylum seeker loses the benefit of the material reception conditions, namely financial aid and the opportunity to benefit from other accommodation. Secondly, he or she risks seeing their asylum application closed by OFPRA (French Office for the Protection of Refugees and Stateless Persons) if an address is not supplied 'within a reasonable timeframe' (SIC). What constitutes a reasonable timeframe is likely to be at the sole discretion of OFPRA.
This prescriptive accommodation instrument also carries a risk of inequality among asylum seekers in the treatment of their application.
Considering the total saturation of existing accommodation and notwithstanding the State's commitment to creating 11 000 accommodation places starting in January 2016, the State cannot currently offer a reception centre place to every asylum seeker. As a result, it is going to greatly increase the creation of HUDA (emergency accommodation for asylum seekers). This accommodation will become available through authorising associations already offering emergency accommodation places and will lead to disparities in the processing of asylum applications.
HUDA and CADA (reception centres for asylum seekers) aim to ensure social support for those accommodated as well as legal support under the constitution and follow-up of asylum applications. The fact remains that staff are not trained in this particular subject and, in any case, the level of support is greater in CADA than in HUDA.
The fact that the support offered in HUDA is better than what has previously been provided for non-accommodated asylum seekers, i.e. nothing, could be a source of contention.
The difference is that what was previously the result of a dysfunctional system (i.e. not taking responsibility for asylum seekers in violation of the Reception Conditions Directive mentioned above) has now been made official practice by the new text.
Another issue at play is how associations specialised in asylum and immigration law have abandoned the provinces in favour of the large cities.
Yet the help provided by these associations in assembling files, whether through legal expertise, an understanding of the geopolitical situation or medical specialisation for asylum seekers is key to the rate of applications granted.
It is hardly Machiavellian to suggest that certain genuine asylum seekers from whichever country could find themselves in isolation in a region that is not conducive to the effective processing of asylum applications.
A legislative instrument that, directly or indirectly, affects fundamental rights and which, in its overall philosophy and in how it is implemented, allows an oppressive interpretation, cannot in essence be endorsed.
The final objection is that the system being put in place enables general surveillance of each asylum seeker in France, which is tantamount to administrative house arrest. The current state of emergency declared following the attacks in Paris already shows how such powers could be abused by a State attempting to implement a policy that is exclusively concerned with security.
It has already been shown that the asylum seeker will only have five days to present him/herself at the specific accommodation centre. If they do not present, they are considered to have refused the offer of accommodation and will lose the benefit of material reception conditions and the related support.
Furthermore, they will be considered as having abandoned their place of accommodation if they are absent for more than one week without a valid reason, In practice, this amounts to an obligation to sign in at least once per week. If this obligation is not fulfilled, the asylum seeker will lose the benefits of material reception conditions and may even face the closure of their application by OFPRA due to not having produced an address.
In order to make the system more effective, the accommodation centre's management are even obliged to inform the OFII.
This is how the structures aimed at helping asylum seekers find themselves on the frontline in the fight against the almost presumed fraudulent behaviour of those seeking our protection.
Taking into account that the associations with approval to host asylum seekers will be partially financed from the OFII budget, i.e. the very agency that they are obliged to inform if the asylum seeker is missing, it is clear that this has been very well planned.
It is therefore important to remember that under the terms of the provisions of Article 2 of Additional Protocol 4 of the European Convention on Human Rights, freedom of movement can only be subject to restriction if it is 'necessary in a democratic society in the interests of national security or public safety, for the maintenance of public order, for the prevention of crime, for the protection of health or morals, or for the protection of the rights and freedoms of others'.
It is up to the national courts, and then the international courts, to determine whether the obligations imposed on asylum seekers are justifiable in the context of the above-mentioned categories.
It is generally accepted that immigration law often constitutes a testing ground for provisions that are ultimately intended to be applied to the entire population. One can only hope that this idea which could lead a State to ordering that an accommodation place be taken up claiming it necessary for the protection of vulnerable, dependent people in part and, at least temporarily, for the protection of national solidarity, does not materialise.

[1] Extract from EUROSTAT statistics on the percentage of asylum applications accepted in the court of first instance in Europe by country: Sweden 76.80%, Netherlands 70.45%, Switzerland 70.68%, Denmark 68.03%, Norway 64.20%, Italy 58.49%, Germany 46.83%, Belgium 39.56%, United Kingdom 38.84%, France 21.74% with an overall average of 45.24%.