Bird’s eye view of the Calais Jungle
Walking the line:
Macron’s new asylum law
attempts to appease the Right
without inflaming the LeftThis is the first in a two-part series about migration to France. It addresses the Macron government’s new set of legal reforms aimed at improving France’s asylum law. The second part of this series will deal with the modern history of immigration to France, to consider potential lessons for the future. by Fabia Wong Contributing Columnist Over the last three years, Europe has borne witness to a massive influx of populations fleeing conflict, instability and economic hardship. According to the UN High Commission for Refugees, 326,000 refugees and migrants risked their lives crossing the Mediterranean in 2016, and another 105,000 arrived in the first half of 2017. In France alone, between 2013 and 2017, the average annual number of requests for asylum has risen from 63,000 to 100,000, five times what Canada is facing, and over three times what is being dealt with by the Netherlands. After peaking in 2015, the numbers of asylum claimants in France are declining steadily. Still, the public discourse surrounding migrants and specifically refugees remains impassioned and polarized. On an evening in late April, militant members of Génération identitaire, a far-right group known for its anti-immigrant brand of nationalism, created a human chain in the Alps, at a point in the French-Italian border that has served as an entry point into France for migrants. Armed with a banner that read, in English, “Closed Border. You will not make Europe home! No Way: back to your homeland!”, some members even boasted about escorting migrants back to the border that night. The French Ministry of Justice was swift in its condemnation of the stunt, sending a circular to all prosecutors advising of the specific provisions of French criminal law under which such conduct can be prosecuted. Meanwhile, in Auvergne, a small town of 600 inhabitants has welcomed migrants for the past three years, including 50 young men previously residing in the notorious jungle of Calais, using the town castle as temporary accommodation. Under the leadership of its mayor, the town of Pessat-Villeneuve recently obtained authorization to open a permanent centre provisoire d’hébergement with 70 spaces, aimed at welcoming families who have obtained refugee status. It is into this fray that the République En Marche government of Emmanuel Macron has waded, by introducing a set of reforms to France’s law on asylum and immigration this year. Throughout the 2016 presidential campaign, Mr. Macron sought to position himself as on neither the right nor the left of the political spectrum. It is perhaps fitting, then, that the proposed law, which has now been passed by the National Assembly and awaits approval from the Senate, was initially vigorously opposed on both sides: by the Right, for additional rights granted to certain classes of migrants, and by the Left, for enhanced state powers and reduced procedural protections for those claiming asylum in France. In spite of the dramatic rhetoric used by the Macron government to justify the quick passage of the law, as well as the fierce debate surrounding its presentation to the National Assembly, a review of the text itself discloses that none of the proposed amendments can be considered radical or even major in terms of systemic change. Rather, the new law is best described as a laundry list of adjustments to the existing regime. The goal of the law, as stated by the Macron government is to balance three objectives: first, reinforcing the protection of persons; second, bringing French procedures in light with European laws and practices, and third, improve the law to better reflect operational realities. An analysis of the text itself, however, reveals that the focus is actually on maximizing efficiency, and on the fight against irregular migration. The new rights granted by the legislation are minor, while the efficiency measures introduced, including reductions in timelines and enhanced powers of the state, could potentially drive end results, by reducing the number of successful asylum claims. The Basics The 1951 Refugee Convention and its 1967 Protocol, to which France is a party, set out conditions that must be met for a person to qualify for refugee protection. The person must (1) be outside his or her home country, (2) have a well-founded fear of persecution (as opposed to merely being at risk of harm), (3) fear persecution on the basis of race, religion, nationality, political opinion or membership in particular social group, and (4) be unable or unwilling, because of their well-founded fear, to seek protection from his or her own state. The French Constitution of 1946 broadens the state’s obligations by offering “subsidiary protection” to those who may not qualify as refugees but for whom there are serious, proven reasons to believe that there is a real risk of grave injury, such as execution, torture or violence, as a result of internal or international conflict. The French state also furnishes protections to stateless persons. The protections offered depend on which category a claimant belongs to. A specialized public office, the Refugee Office, makes the determination, upon receipt of a demand, of whether a claimant satisfies the condition for any of these three categories of protection; this decision can be appealed to an administrative tribunal, the National Court of Asylum, based in Montreuil, a suburb of Paris. The new law: some new rights, several new restrictions The most significant new right is the provision of a four-year residence permit to beneficiaries of subsidiary protection and stateless persons and their immediate families. Previously these claimants had to apply each year for a renewal of their one-year permits – only refugees would receive the four-year permit. This measure could conceivably facilitate the installation of these vulnerable populations by offering increased stability, while reducing the number of already onerous administrative hurdles they will face while trying to make France their home. Other aspects of the new law are aimed at assisting claimants to integrate, including by authorizing earlier access to employment, and social assistance, though it is unclear how this latter measure will be implemented or if it will improve upon the assistance that is already provided. The law features various measures aimed at speeding up the assessment of asylum claims. The timeframe for the filing of an appeal before the National Court of Asylum in the event an application for asylum is rejected has been cut in half. It is now only 15 days, raising the concern that claimants’ due process rights will be put at risk. One knock-on effect of the amendment is that court functionaries will have less time to review a claimant’s dossier, which, in turn, may impact the success or failure of the appeal. In February, three major unions representing the workforce of the National Court of Asylum went on strike for 28 days to protest the proposed law and specifically the reductions in timeframes. The concern, as reported in Le Monde, was that the measures would not only reduce the number of dossiers that make it to appeal, but would also force a change in the way the dossiers would be dealt with. Those on strike stated that between 2014 and 2017, the number of rejections of asylum applications without hearings had risen from 17 to 30%. Another measure aims to shoehorn more claims into the existing “accelerated” procedure, which is used, for example, if the claimant comes from a country deemed safe by France, or where the claimant delays filing his request with the Refugee Office (the acceptable period of delay has been shortened by the new law from 120 to 90 days). Whereas the normal process with the Refugee Office could take as long as 6 months, the accelerated procedure takes only fifteen days. This dramatic acceleration again raises the spectre of compromising claimants’ due process rights. In tandem with these reductions in timeframes, the law proposes to double the permissible period to detain an individual whose claim for asylum has been rejected. This measure is only undertaken where the person presents a flight risk. According to the case law of the European Court of Human Rights, states are authorized to detain aliens to prevent unlawful immigration if there are appropriate safeguards and if there is a judicial decision authorizing the detention. By extending the period, the government has effectively bought itself more time before such detention is considered “illegal”. France applies a different procedure to those who apply for asylum within the country, and those who apply at the border. Even prior to the new law, civil society raised the concern that the border system features less protection for claimants, through the use of zones d’attente – areas near or inside transport hubs where the authorities can detain those attempting to illegally enter France and preliminarily assess asylum claims in an expedited fashion to facilitate quick expulsion. The law in force prior to the amendments imposes maximum timeframes for the detention of persons in the zone d’attente, with any extensions subject to a judge’s approval. The new measures exacerbate concerns regarding the dehumanization of these claimants by removing the right to contest having his or her claim heard via teleconference and provide for a new judicial power: to summarily dismiss appeals against a decision to extend detention in the zone d’attente without the need of a hearing. According to one NGO, there are over 66 such zones in operation, and the short appeal period does not permit a realistic chance of access to legal advice to those who cannot afford to pay, as few of these zones benefit from the permanent staffing of lawyers. The law also increases the government’s power to control the movements of persons whose applications have been rejected, through expulsion under certain circumstances or the deprivation of freedom of movement – either through detention or restriction to a particular location. The government has also increased its powers in respect of searching people without identity papers or proof of their right to circulate on the territory, and increased the maximum time such persons can be held, from 16 to 24 hours. Another measure that could have significant impact is the introduction of the regional distribution of incoming claimants and related housing and resources. Under the proposed law, the relevant government office will have the authority to transfer claimants to a different region on the basis of available resources, taking into account the specific needs of the claimant and any resources or special expertise of a particular region. There is no right of appeal; in fact there appears to be no role at all envisioned for the judiciary, and a refusal by the claimant to submit to a transfer can result in a deprivation of all related benefits. This new measure presents a significant new governmental power – one that is arguably necessary in light of situations like the one that unfolded at Calais. But administrative decisions that can have significant impact on the lives of claimants should be subject to judicial oversight. The national discourse on migration and asylum has been tied, unfairly but perhaps inextricably, to the conversation on terrorism. After a particularly fraught presidential election, the people of France have pinned their hopes on Mr. Macron who has positioned himself as a guardian of globalization and progress. The stakes are high. Given the magnitude of the challenges facing the country and the importance of the issues to the future of France, one cannot help but feel that this law is a lost opportunity. The changes proposed are marginal, and on balance appear focused on indirect measures aimed at reducing the number of successful asylum claims rather than setting out a principled framework for the control of illegal immigration and effective management of asylum claimants, compliant with EU norms. The government has indicated it has plans in the future to implement further laws aimed at improving integration. It is too early then, it seems, to fully assess how the Macron government plans to deal with one of the most emblematic manifestations of the issue dividing European politics today: openness.  Projet de loi Asile et Immigration, 25 avril 2018, Gouvernement.fr.  Immigration and Naturalisation Service (IND), Netherlands.  Projet de loi Asile et Immigration, 25 avril 2018, Gouvernement.fr. Le Monde, “A la Cour nationale du droit d’asile, une grève contre la future loi immigration,” 13 February 2018.  See Association nationale d’assistance aux frontières pour les étrangers, Analyse du projet de loi “pour une immigration maîtrisée et un droit d’asile effectif”, 3 avril 2018.
About the author: Fabia Chenivesse-Wong. Fabia studied and practiced law at a regional law firm in her hometown of Toronto, Canada before moving to The Hague, the Netherlands, in 2011. For six years she worked for UN tribunals, prosecuting international crime. Currently based in the south of France, she writes about gender, race, culture and the law.