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VII. Alternative to Forced Removal

I just want him back, even if he has to stay in the home [under house arrest], so at least the children can grow up with their father.  We’ve paid enough.

—Nadija R., wife of a deportee²¹¹   

Deportation and expulsion are not the only tools the government has at its disposal for dealing with those deemed to pose a threat to national security. And in many cases—such as when the person faces a risk of torture if returned—forced removal is an inappropriate response. Even in other cases—including those, for example, where the person has long-standing ties to France through residence, marriage, and children—the government should consider alternative methods of protecting against terrorism.  French law already provides an alternative, albeit in Human Rights Watch’s view flawed, to deportation: the use of compulsory residence orders.

Provided that compulsory residence orders do not include conditions so severe as to amount to a criminal sanction, and there are adequate judicial safeguards in place, such orders can represent a viable alternative to removal, where to do so would put an individual at risk of torture. Judicial safeguards should include the following: an order can only be issued by a court (not by the executive branch); an order can only be issued following a process in which credible evidence of its necessity is presented to the court and the person subject to removal; the person subject to removal has an opportunity to challenge that evidence; and there is appropriate access to a meaningful appeal and review. Orders must be time limited and open to rescission and amendment of conditions on the presentation of new evidence, and the person subject to the order must be able to maintain family life and be permitted to work.

Compulsory residence along these lines would also be appropriate in national security cases where the individual would otherwise be protected against expulsion due to the duration, intensity and stability of social and family ties in France, and where expulsion would constitute a disproportionate interference with the right to family life of the person’s spouse and children. 

France’s Present Use of Compulsory Residence

In cases where the courts determine that deportation to the country of origin is impossible on human rights or other grounds, or where the individual already has refugee status and cannot be returned to his home country, the interior minister can issue a “compulsory residence order” (arrete d’assignation a residence).²¹²  Under such an order, an individual must live in a specific place, report periodically to the local prefecture, and request prior authorization for any travel outside the defined area.  Failure to comply with any of the provisions of the compulsory residence order is punishable by up to three years in prison.²¹³  Individuals assigned to compulsory residence in these cases generally do not have the right to work, and are invited to take the necessary steps to find a third country willing to admit them.

The explicit objective is for compulsory residence to be a short-term measure until it is possible to expel the person, and this is generally stated in the ministerial order.²¹⁴  This would explain, in part, why those assigned to residence are typically denied work authorization.  The individuals themselves must try to find a third country willing to accept them, which translates in most cases into a fairly futile exercise of writing periodic letters to a variety of countries.  It is unclear whether the French government itself takes any steps to find a third country solution.  As a result, many people assigned to residence live in an indefinite limbo.   

However, according to an official at the Interior Ministry,assigning someone to compulsory residence serves two other key goals: it facilitates surveillance and it minimizes the threat by, for example, removing someone from his urban base and putting him in a rural area.²¹⁵  Human Rights Watch believes that imposing restrictions on freedom of movement for the mere purposes of surveillance without judicial oversight violates several due process rights as well as amounting to a disproportionate interference with other rights.

As expressed to us by this official, another goal is to create such an unpleasant situation that the person himself will make the necessary arrangements to leave France.²¹⁶ 

The conditions under which these individuals live vary significantly.  In the case of Yashar Ali, an Iraqi refugee and imam suspected of links to radical Islamists, the authorities removed him from Paris where he served as an imam and assigned him to residence in Mende, in the southern departement of Lozere.  The area is notable for having very few Muslim residents, and the immediate goal of issuing Ali with a ministerial expulsion order and assigning him to residence appears to have been to distance him from his base of support in order to “destabilize the Salafist movement in the Paris area and reduce the vague intentions to organize a jihadist network on national territory.”²¹⁷   In the beginning, Ali spent two months in pretrial detention for failing to report to Mende himself—he claims he never received the notification to report within eight days to the Mende prefecture—before he was sentenced to one month in prison for this misdemeanor offense.²¹⁸

In another case, Mohamed Kerrouche was assigned to residence 150 kilometers from his home in Paris.  He lived in a hotel for one-and-a-half years before, as his lawyer described it, “he cracked” and went back to Algeria of his own accord.²¹⁹  Salah Karker, a co-founder of the Tunisian Islamist movement Ennadha, was granted refugee status in 1988.  The Interior Ministry ordered his expulsion in 1993 and assigned him to compulsory residence in Dignes-les-Bains, near the border with Italy.  He was transferred back to his home near Paris 12 years later, in 2005, after suffering a brain hemorrhage.²²⁰  By contrast, Mouldi Gharbi, a Tunisian refugee, was assigned to residence in 1998 in his Paris apartment after the Paris prefect ordered his expulsion on the grounds he presented a “grave threat to public order.”  Gharbi had been granted refugee status while in pretrial detention on association de malfaiteurs charges and was thus protected from expulsion.  He was eventually sentenced to one year in prison—time already served pretrial—and was not given a criminal deportation order.  Gharbi, a tailor with an atelier on the Champs-Elysees, was granted authorization to work in 2004.²²¹

Compulsory residence orders clearly interfere significantly with certain fundamental rights such as an individual’s right to freedom of movement, right to family life, and in the case of France, the right to work. Both the ICCPR and the European Convention on Human Rights guarantee the right to freedom of movement, including the right of everyone lawfully within the territory of a state to liberty of movement and the freedom to choose his or her residence.  However, restrictions may be placed on these rights in accordance with the law and in the interests of national security or public safety and for the prevention of crime, among other reasons.²²²

It is arguable that conditions could be imposed that would render compulsory residence orders akin to detention.²²³ However, as each set of conditions that are imposed by way of compulsory residence can vary from case to case, it is likely that most compulsory residence orders would not reach the level of severity necessary to be considered akin to a criminal sanction.

Since the orders are based on the same low threshold of proof and use of unverifiable intelligence reports discussed above in relation to appeals against expulsion orders, the same concerns apply with respect to the compatibility of these orders with human rights law, notwithstanding the right to appeal the orders within the administrative system of justice.

To date, the UN Human Rights Committee has upheld the imposition of a compulsory residence order in France as compatible with the ICCPR. In the case of Salah Karker, mentioned above, his wife Samira submitted a complaint to the Human Rights Committee under the ICCPR, explaining how the order interfered with their family life and her husband’s freedom of movement and alleging that the conditions of residency were akin to detention. The committee upheld the restrictions, finding that France “produced evidence to the domestic courts that Mr. Karker was an active supporter of a movement which advocates violent action”; that “the restrictions of movement on Mr. Karker allowed him to reside in a comparatively wide area”; and that “the restrictions on Mr. Karker's freedom of movement were examined by the domestic courts which, after reviewing all the evidence, held them to be necessary for reasons of national security.”²²⁴

Other Countries Use of Control Measures

Human Rights Watch opposes restrictive measures amounting to a criminal sanction where not imposed by a criminal court in accordance with international fair trial standards. 

In the United Kingdom, for example, “control orders” imposed on terrorism suspects can include curfews, electronic tagging, restrictions on the use of certain items (such as a computer), restriction on the use of certain communications technology (such as the internet), limits on the people with whom the individual may associate, and travel bans.  Human Rights Watch considers that the restrictions imposed through control orders can be so severe as to amount to the equivalent of punishment upon the determination of a criminal charge.  Yet control orders are imposed by the British home secretary (interior minister) on the basis of a low standard of proof and without sufficient judicial supervision. As such Human Rights Watch considers that the system of control orders does not comply with international human rights law. ²²⁵

In Italy, the law provides a framework for placing a person deemed a danger to society under special police supervision.²²⁶ That measure may be accompanied, if need be, by a requirement not to stay in one or more named towns or provinces or—if the person concerned is considered to be particularly dangerous—by a compulsory residence order requiring him to live in a named municipality.²²⁷

Police supervision and residence orders can only be imposed by a court. The court sits in private, but must give a reasoned decision after hearing the representative of the public prosecutor's office and the person on whom it is proposed to impose the measure. When making an order, the court must fix its duration—between one and five years maximum—and specify the conditions with which the person concerned must comply.  The person subject to the measures has the right to lodge an appeal, first to the Court of Appeal and then to the Court of Cassation, and to be represented by a lawyer.  

Although police supervision and residence orders can be imposed on persons who have not been found guilty of any offense—indeed who may have been acquitted—they are subject to time limits, can only be imposed by a court of law, and are subject to judicial supervision. Moreover, the relevant law was amended in 1988 to provide that a person can only be ordered to reside in the town where he has his domicile or residence.²²⁸

The European Court of Human Rights has considered the compatibility of these provisions in Italian law with the ECHR, and while it has to date upheld the framework in principle, it has found that in particular instances the use or scope of the measures amounted to unjustified interference with freedom of movement.²²⁹

Sweden in the past also provided for compulsory residence orders similar to those used in France. The 1980 Swedish Aliens Act gave the government the authority to prescribe restrictions and conditions regarding place of residence, change of domicile and employment in cases where an expulsion order could not be enforced for example on grounds that the individual might have been exposed to political persecution or torture upon return.²³⁰  The Human Rights Committee in a case from 1991 upheld the imposition of such measures on a Kurdish suspect living in Sweden.²³¹ The committee simply stated that as Sweden had invoked reasons of national security to justify the restrictions on freedom of movement, the restrictions to which the suspect was subjected were compatible with those allowed pursuant to article 12, paragraph 3, of the ICCPR.²³²  The 1991 Act concerning special controls in respect of aliens abolished the system of compulsory residence.  Under current legislation, the police may order foreigners who cannot be expelled to report to the police at regular intervals and conduct searches of their premises and their persons. ²³³  A court may authorize the police to intercept the foreigners’ communications and correspondence.²³⁴