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III. Forced Removal on Grounds of National Security

Forced removals from France are regulated by the Code on the Entry and Stay of Foreigners and the Right to Asylum (Code de l’Entree et du Sejour des Etrangers et du Droit d’Asile, CESEDA), hereafter “the Immigration Code.”  The Immigration Code, which entered into force on March 1, 2005, consolidates and replaces the 1945 Foreigners Act and the 1952 Asylum Law.  It also incorporates important reforms since 2001 to facilitate the expulsion of persons suspected of links to international terrorism. 

There are two main mechanisms for the forced removal of foreign residents lawfully present in France that are applied in national security cases. The first is criminal deportation ordered by a court as a sanction following criminal conviction, known as “Interdiction du Territoire Français” (ITF), or ban from French territory. The second is an administrative expulsion, known as “arrete ministeriel d’expulsion” (AME), or ministerial expulsion order, which can be ordered by the Interior Ministry.  A third mechanism authorizes prefects to order expulsions on the grounds of grave threats to public order, but these arretes prefectoral d’expulsion (APE), or prefectoral expulsion orders, are not commonly used in cases involving terrorism suspects.

The law ostensibly protects certain categories of foreign residents from forced removal, but exceptions written into both the Criminal Code and the Immigration Code allow for the “seriousness” of the criminal conviction or alleged behavior to override the criteria for protection from removal.

Human Rights Watch reviewed cases of removal on national security grounds carried out by both ministerial expulsion order and criminal deportation order. In some cases we reviewed, both means were used to enforce a removal. In these later cases, the Interior Minister issued an expulsion order against a person already subject to a criminal deportation order, presumably to ensure removal even if a criminal judge were to lift the deportation order upon appeal.

Criminal Deportation

Criminal deportation orders can be made by a competent judicial authority as a complementary or even principal sanction for a wide variety of minor and serious felony offenses.  No single legislative instrument or statute lists all of the offenses that may give rise to a deportation order; these are enumerated in different instruments, including the Immigration Code, the Criminal Code, the Labor Code, and the Public Health Code.  The decision to impose a deportation order as a complementary sanction is always at the discretion of the competent criminal court.  The criminal court may also determine whether to impose a temporary ban—ranging usually from three to ten years maximum, depending on the offense—or a definitive, life-long ban from entering French territory.

A broad network of migrants’ rights, human rights, and grass roots organizations launched a campaign against criminal deportations in 2000.  They argued that the “double punishment” (double peine), as they call it, is tantamount to double jeopardy because it imposes two sanctions for the same crime, and discriminatory in that it affects only foreigners. The campaign members were successful in promoting a 2003 reform that increased protection from deportation for certain categories of foreigners.³¹   The Criminal Code now establishes two tiers of protected categories based on criteria including length of residency in France, marriage to a French citizen, and whether the individual is responsible for the care and upbringing of minor children, among others.³² 

All of these protections are subject to exceptions, however, and the only foreigners who enjoy an absolute protection from deportation are minors—persons under age 18.³³   The Criminal Code stipulates that foreigners convicted of “attacks on the fundamental interests of the nation… acts of terrorism… [and] crimes with respect to combat groups and disbanded movements” are not protected against criminal deportation regardless of their status,³⁴ and foreigners convicted of a terrorism-related offense may be deported and barred permanently from reentering France.³⁵  The competent court must weigh the individual’s ties with France, his or her ties with the country of nationality, as well as the individual’s level of integration into French society against the seriousness of the offense in determining whether to impose a deportation order.³⁶ 

The vast majority of terrorism-related criminal deportation orders are handed down with convictions for the minor felony offense of criminal association in relation with a terrorist undertaking, or association de malfaiteurs (described in the previous Chapter).³⁷  This charge can cover a wide range of behavior, from hosting an identified or alleged terrorist operative or helping to arrange fake papers or a cell phone for that person, lending or delivering money, and recruiting fighters to go to Afghanistan or Iraq, to materially plotting an attack on French soil.  Foreign nationals convicted of association de malfaiteurs are routinely subject to expulsion even when they are given relatively short prison sentences. 

The national security exception built into the language on protected categories of foreigners means that even foreigners who were born in France or moved there at a very young age can be deported upon release from prison.  Mohamed Chalabi, the presumed ringleader in the Chalabi case, and his brother Brahim Chalabi received eight and four years in prison, respectively, and permanent criminal deportation orders.  Although they are Algerian nationals, both were born and raised in France, were married to French citizens, and had children with French nationality.  Mohamed Chalabi was deported in 2001; the French government halted its effort to deport his brother Brahim in 2003 when the European Court of Human Rights requested a stay in execution due to concerns over the risk of torture in Algeria. 

Abderrazak Mezouar, an Algerian national, also was tried in the Chalabi case and sentenced to four years in prison—he had already spent four years and two months in pretrial detention when the verdict was handed down—and deportation, though he had been born in France, was married to a French citizen, and had four children who were French citizens. 

Appeals against criminal deportation orders

Appeals against criminal deportation are lodged with the appropriate criminal appellate court as part of a general appeal against a criminal sentence. This appeal is non-suspensive, so if the deportation order is the only sentence—in other words, if the convicted person is not given a jail term—or if the prison sentence handed down by the criminal court is suspended or covers time already served in pretrial detention (as in Abderrazak Mezouar’s case, mentioned above), the order may be executed even while the appeal is pending.

An affected individual may also apply to the court that imposed it to rescind the order.  This is different from an appeal.  The first petition for rescission may only be filed six months after the conviction, ³⁸ and these petitions are only admissible if the individual is still in prison in France, is out of prison but has been assigned to compulsory residence in France (see below), or is already outside the country; those released from prison and awaiting deportation but not assigned to compulsory residence may not apply for rescission. There is no limit on the number of times an individual can ask the court to rescind the criminal deportation order. Six months must transpire before renewing the request, however.³⁹

Administrative Expulsion

The Immigration Code authorizes the interior minister to expel legal foreign residents on the grounds they pose a grave threat to public order (menace grave a l’ordre public).⁴⁰ 

Ministerial expulsion orders are one-page documents that reference the relevant articles of national immigration law as well as the European Convention on Human Rights, succinctly describe the grounds for the expulsion (for example, the individual “has engaged in activities of a nature to compromise State security” or “openly incites violence and hatred”), and may state that the expulsion is an “overwhelming necessity” and/or “absolutely urgent” for the protection of the state and public security. 

The Immigration Code sets out roughly the same criteria for two protected categories of foreign nationals as in criminal deportation cases.⁴¹  Once again, however, exceptions to protected status apply in cases where the expulsion is considered an “overwhelming necessity for the safety of the State or public security” (une necessite imperieuse pour la sûrete de l'Etat ou la securite publique),⁴² and in cases involving behavior that constitutes “an attack on the fundamental interests of the State, or related to terrorist activities, or constituting explicit and deliberate incitement to discrimination, hatred or violence against an individual or a group of individuals.”⁴³  Expulsion by ministerial order precludes reentry to French territory until such time as the order is lifted.

Ministerial expulsion orders are theoretically subject to review by an Expulsion Commission composed of two judicial magistrates and one administrative magistrate, in a hearing at which the person subject to expulsion and his or her lawyer can participate.⁴⁴  The commission’s role is to evaluate whether the expulsion is necessary and proportionate, based on the seriousness of the threat to public order and the individual’s integration into French society and his or her personal and family attachments in France.  The commission plays an advisory role only and its view on the expulsion is not binding. 

However, the Immigration Code also creates an expedited procedure in which the Expulsion Commission is bypassed.  The interior minister may issue an expulsion order citing “absolute urgency” (urgence absolue), giving authorities the power to expel immediately.⁴⁵  In almost all of the cases reviewed by Human Rights Watch, the administrative expulsion order cited both absolute urgency and overwhelming necessity. 

Key reasons for recourse to administrative expulsions

Typically, administrative expulsions are issued against individuals whom the government is unable or unwilling to prosecute.  Administrative expulsion appears to be the preferred method for dealing with foreigners accused of incitement to discrimination, hatred, or violence in part because immigration measures like expulsion allow the government to bypass the procedural safeguards built into the criminal justice system, and in part because under current law a conviction for incitement does not allow for a complementary order for criminal deportation.  

Indeed, this latter argument was raised in favor of the 2004 reform to the Immigration Code that broadened the scope of speech giving rise to administrative expulsion.  Whereas a reform in 2003 had allowed for expulsions for incitement to discrimination, hatred or violence on the grounds of ethnicity or religion, then-Interior Minister Dominique De Villepin sponsored a modification introducing the current, more expansive language allowing for expulsion for incitement to discrimination, hatred or violence against a specific person or  group of persons (emphasis added).⁴⁶

The most high-profile cases involve imams accused of preaching hatred against groups of people, advocating support for resistance to perceived oppression either abroad or in France, and expressing contempt for “French values.”

Administrative expulsions are also used to banish terrorism suspects the authorities fear they will not be able to prosecute successfully, and individuals who were convicted for association de malfaiteurs but did not receive a criminal deportation order.  Algerian Chellali Benchellali was issued an expulsion order when he was in police custody on suspicion of terrorist activity, presumably because authorities believed there was a chance the investigating magistrate would release him without charge.⁴⁷   Tunisian Adel Tebourski was due for release from prison after serving a six-year prison term on an association de malfaiteurs conviction.⁴⁸  Tebourski had acquired French citizenship in 2000 and was thus not capable of being subject to a criminal deportation order.  The Interior Ministry resolved this obstacle by rescinding Tebourski’s French citizenship the day before he was due to be released from prison and issued an administrative expulsion order on the grounds that his expulsion was a matter of absolute urgency and overwhelming necessity.

Safeguards within the administrative justice system

Appeals against expulsions ordered by the Interior Ministry fall within the jurisdiction of the system of administrative justice. France has a well-developed administrative justice system.  There are 28 administrative courts (Tribunaux Administratifs, TA) that rule at first instance, and eight administrative courts of appeal (Cours Administratifs d’Appel, CAA).⁴⁹  The highest jurisdiction within the administrative justice system is the Council of State (Conseil d’Etat, CE). 

Administrative law provides the framework for judicial review of the exercise of executive functions.  In contrast with proceedings in a criminal court of law, most administrative proceedings are written, the presence of the interested parties is not required at any hearings that may be held, and the court’s primary duty is to determine whether an executive authority has exercised its power in accordance with the law.  Council of State case law is binding on lower courts.

Ministerial expulsion orders, as well as the separate orders designating the country of destination for deportation (“country designation order”), may be appealed within the administrative court system.⁵⁰  For either order there are in fact three types of appeal: the appeal on the merits; the appeal on the merits in conjuction with a petition for suspension (refere-suspension); and a petition for protection of fundamental liberties (refere-liberte).  Country designation orders, which may be issued by the interior minister or by a local prefect, are crucial in cases involving concerns about risk of torture upon return.  On appeal, a court may uphold the forced removal but annul the order designating the country of nationality as the destination on the grounds that the individual would face inhuman treatment upon return. 

Appeals against country designation orders must be filed with the local administrative court, while appeals against administrative expulsion must be filed with the administrative court in Paris.  The centralization of expulsion cases in the Paris administrative court—which mirrors the centralization of terrorism-related criminal cases in the Paris Correctional Court—is quite recent.  After the administrative court in Lyon suspended the expulsion of a local imam, Abdelkader Bouziane, in April 2004, then-Interior Minister De Villepin told Le Figaro newspaper,

I am convinced that it is necessary to expel foreign extremists who do not have a place on our territory.  If the current system does not allow [us] to take the necessary decisions and to carry them out, the law will have to be changed to take into account the reality of the risk.⁵¹

De Villepin asked the National Assembly to consider changing the law to make the Council of State the first and last instance for appeals against expulsion orders, “in order to better reconcile the defense of individual rights and the imperatives of the Republican state.”⁵²  This proposal was met with significant opposition, including from the Syndicat de la Juridiction Administrative (SJA), a union of administrative court judges, and the Council of State itself, and ultimately a compromise alternative was found in the centralization of appeals against expulsions ordered by the interior minister in the Paris administrative court.⁵³

The appeals process can take months, even years, as a case makes its way through the three levels of the court hierarchy (local administrative court, appellate court, and Council of State).  None of the types of appeal is suspensive in the mere act of filing, however.  In order to suspend execution of the expulsion order, individuals must get a positive ruling on either a petition for suspension or a petition for protection of fundamental liberties (both petitions may be filed in the same case).  Initial filing is to the interim relief judge (juge des referes) at the Paris administrative court.

A petition for suspension is not admissible if not accompanied by the appeal on the merits. It must provide serious grounds for doubting the legality of the expulsion order and must fulfill an “urgency” criterion.⁵⁴  The case law of the Council of State suggests that the notion of urgency is presumed in cases involving expulsion, precisely because the appeal on the merits is not suspensive.⁵⁵  The law does not impose a timeframe for the judge’s ruling on a petition for suspension, but once rendered it is final and cannot be appealed.⁵⁶

The petition for fundamental liberties, which may be filed even in the absence of an appeal on the merits, must demonstrate that the expulsion constitutes a serious and manifestly illegal violation of a fundamental right.⁵⁷  The interim relief judge is empowered to take “all measures necessary to safeguard a fundamental right,” and must render a decision within 48 hours of receiving the petition.⁵⁸  The requirement for a swift decision in cases involving potential violations of fundamental rights is an important one, but the authorities may still legally remove someone before the interim relief judge has rendered a decision. In the cases reviewed by Human Rights Watch, French authorities generally stayed the removal until the interim relief judge had issued a judgment.  In the case of Algerian Nacer Hamani, however, the government did attempt to deport him while the interim relief judge examined the petition.  This case is detailed below.  A negative decision on this kind of petition may be appealed directly to the interim relief judge at the Council of State within 15 days; the Council of State judge must render a decision within 48 hours.⁵⁹

The interim relief judge determines whether proceedings involving either petition will be oral or written,⁶⁰ and the judge may reject a petition in a reasoned decision without calling for any hearing of any type if he or she considers the petition manifestly inadmissible, unfounded, not within its jurisdiction, or that it does not meet the urgency criterion.⁶¹  A decision to reject as manifestly inadmissible or unfounded may not be appealed.⁶²

Procedural concerns

In the administrative justice system, the standard of proof required to uphold  an expulsion ordered by the Interior Ministry is significantly lower than it is to convict in criminal proceedings.  The government’s evidence against radical preachers is contained in intelligence reports that must be disclosed to the defense.  The information contained within the reports, however, cannot be independently verified or easily contested by the defense. 

The concept of proof in these proceedings is understood to be flexible, allowing for all manner of evidence including scribbled “post-it” notes.⁶³ “There is no formalism with respect to proof [in administrative justice]… it’s not really a matter of proof, [rather] one tries to convince the judge.  It is prohibited to use the word ‘proof’ in rulings, because it’s not about proving but [rather] convincing,” a government commissioner ⁶⁴ at the Council of State told Human Rights Watch.⁶⁵ With specific regard to the information necessary to substantiate an expulsion on grounds of national security or public order, the Council of State has taken the view that assessments of these kinds of threats cannot be subject to the “same regime of proof” as when it comes to establishing the existence of crime.⁶⁶

Council of State jurisprudence has established that the ministry must include in the expulsion order the legal and factual basis for the decision to expel.⁶⁷  In practice, the one-page orders include only summary information, and it is only if the order is appealed that the government must provide supporting evidence to substantiate the threat assessment.  It does so through intelligence service reports commonly referred to as “notes blanches” (“white notes”) because they are unsigned and do not provide any details about the sources of the information they contain.⁶⁸  These reports, usually produced by the domestic intelligence service (Renseignements Generaux, RG), are often based on information from informants, some of whom have been pressured into service in exchange for not being expelled themselves, either because they are liable to receive a ministerial expulsion order or because they are in France illegally.⁶⁹  One lawyer explained, “Lots of people are pressed into being informants, they get their residency cards in exchange, and then they have to provide some kind of information, so they amplify rumors.  And then there’s no chance for a criminal judge to verify the information and its source.”⁷⁰

All of the lawyers interviewed in the course of research for this report said that they believed they had had access to all of the information submitted by the government to the administrative court, including all intelligence reports.  Only one lawyer mentioned a case in which a judge with the Paris administrative court had refused to give her a copy of a note blanche produced by government counsel at the hearing on a prefectoral expulsion order.

The case involved a Tunisian, Hamed Ouerghemi, who was ordered expelled in February 2005.  Ouerghemi, a member of the Tunisian Islamist movement Ennadha, applied for asylum from the detention center where he was placed pending deportation and the Office for Refugees granted him subsidiary protection.⁷¹ A few weeks later, on March 4, 2005, the Administrative Court judge upheld the expulsion order, citing the RG report verbatim in his ruling.  Ouerghemi, who in the meantime had been assigned to compulsory residence, appealed to the Paris Administrative Court of Appeals, which annulled part of the lower court’s decision in September 2005, saying it had been based “on information contained in extracts of a note blanche from the Renseignements Generaux mentioned at the hearing by counsel for the prefect, whereas neither the document nor the information it contained had been communicated to Mr. Ouerghemi.”⁷²

The Council of State’s binding interpretation is that a note blanche should be rejected if it is “brief, provides very little detail, and… is limited to… assertions.”⁷³  Noting that “negative proof is not always easy to provide,” the government commissioner, in an important case regarding the use of notes blanches, proposed an approach that favors “a balanced concept of the burden of proof” taking into equal consideration the nature of the threat, guided for the most part by the contents of the intelligence report, and the arguments for the defense.  The commissioner held that these latter must be specific, and not consist in merely objecting to the use of the note blanche on principle.⁷⁴

For its part, the Interior Ministry argues that “the formalism should not be such that the Minister is obliged to provide details of the precise circumstances of each act characterizing the behavior of a foreign national subject to an expulsion order.”⁷⁵  This position was endorsed by the Nantes Administrative Court of Appeal in a 2001 case when it took the view that the Interior Ministry did not have the obligation to “specify in what way the presence of the petitioner [an individual subject to an expulsion order] on French territory poses an especially grave risk to public security.”⁷⁶

The lack of precision of the legal concept of threat to public order and the comparatively low standard of proof in the system of administrative justice give judges in these matters significant room for discretion.  Defense lawyers complain that administrative judges rely blindly on intelligence reports, and many of the rulings examined by Human Rights Watch quote the notes blanches verbatim.  The government commissioner in the Bouziane case, detailed below, noted the “absence of well-established jurisprudence on the intensity and materiality of the threat justifying the expulsion of a foreigner belonging to one of the categories benefiting from an almost absolute protection.”⁷⁷ 

Human Rights Watch acknowledges the critical role of intelligence services in counterterrorism efforts.  Effective surveillance and intelligence gathering with appropriate judicial oversight is a key feature of both prevention and prosecution of terrorism offenses.  We also recognize that Council of State jurisprudence allows intelligence service reports to be submitted in cases concerning the entry and stay of foreigners, and to be considered as one element of proof among others.⁷⁸  We are nonetheless concerned that the minimum requirements established by the Council of State for admissibility of a note blanche are neither sufficiently clear nor sufficiently respected in practice, and may result in expulsions based on unverifiable information that is difficult to refute. Human Rights Watch is also concerned by the fact that there is no means to establish whether information contained in a note blanche has been extracted under torture. The use of information extracted under torture in judicial proceedings would violate obligations on states to respect the absolute prohibition on torture.

Impact of Asylum Claims on Removal

Persons facing deportation or expulsion can apply for asylum.⁷⁹  Petitions for asylum under these circumstances are processed under an expedited “priority” procedure in which the Office for the Protection of Refugees and Stateless Persons (Office Français de Protection des Refugies et Apatrides, OFPRA, hereafter “Office for Refugees”), must examine the petition and render a decision within 15 days, or within 96 hours if the individual is detained pending deportation.⁸⁰  Appeals are heard by the Appeals Board for Refugees (Commission des Recours des Refugies, CRR, hereafter “Appeals Board”).

The Office for Refugees is a governmental body under the aegis of the Ministry of Foreign Affairs. The Appeals Board is what is called in France a “specialized administrative jurisdiction” and is composed of three judges: a professional magistrate, a representative of the ministries that sit on OFPRA’s board of directors, and a representative of the United Nations High Commissioner for Refugees (UNHCR).  As a result, the Appeals Board enjoys the greater credibility as an autonomous arbiter of asylum claims.⁸¹

Filing for asylum is the only certain way to suspend removal, but here again, national security concerns are grounds for an exception to the general rule of prohibition on deportation for the entire period while the asylum claim is under review.  Ordinarily, asylum seekers are entitled to a temporary residency card for the duration of the asylum determination procedure.  This procedure includes an initial decision by the Office for Refugees, as well as the optional appeal of a negative ruling to the Appeals Board.⁸²  The Appeals Board’s decision is final, and asylum seekers whose claims have been refused are then subject to deportation.  In cases involving persons considered to pose a threat to state security or public order, no temporary residency permit is issued and deportation is suspended only while the Office for Refugees considers the application.⁸³  In the event of a negative decision, the individual may be deported even if he or she has appealed the decision to the Appeals Board.⁸⁴

UNHCR has consistently argued that all appeals concerning asylum claims should be automatically suspensive: “Given the potentially serious consequences of an erroneous determination at first instance, the remedy against a negative decision at first instance is ineffective if an applicant is not permitted to await the outcome of an appeal… in the territory of the Member State.”⁸⁵  The EU Network of Independent Experts on Fundamental Rights has similarly remarked on “the connection between the requirement of a suspensive remedy and the potentially irreversible nature of the damage that would be caused by the enforcement of a removal order adopted on the basis of incomplete information on the reality of the risks incurred in the country of return.”⁸⁶  

The Office for Refugees can grant one-year renewable “subsidiary protection” to individuals who do not fulfill all the conditions for refugee status, but face a serious threat in their country of being subjected to the death penalty, torture, or cruel, inhuman or degrading treatment or punishment, or “serious and individual threat to a civilian’s life because of indiscriminate violence resulting from a situation of national or international armed conflict.”⁸⁷ But the office can refuse or revoke this subsidiary protection status in cases where the individual’s presence on French territory is considered a serious threat to public order, public security, or state security.⁸⁸ Even where protected status has been revoked for these reasons, France is obliged under international human rights law not to return any person to a country where he or she faces a risk of torture or prohibited ill-treatment (see below).⁸⁹