FRANCE: Parliament abolishes the "solidarity offence" but maintains custody for undocumented migrants

21.12.2012 - On 19 December , the French Parliament abolished a legal provision that sanctions people who provide support to irregular migrants, through the adoption of a proposal on "holding migrants for the verification of the regularity of stay, and amending the offence for support to irregular stay by excluding humanitarian and non-profit based acts" (projet de loi relatif à la retenue pour vérification du droit au séjour et modifiant le délit d'aide au séjour irrégulier pour en exclure les actions humanitaires et désintéressées).[1]

The proposal will allow the amendment of the Code on Entry and Stay of Foreigners and on Asylum Law (Code sur l'Entrée et le Séjour et Etrangers et du Droit d'Asile), and the abolition of the "solidarity offence" (délit de solidarité) will be seen by many organisations as a victory for campaigns that have lasted almost a decade. However, the new law is not all good news for migrants' rights - it is still possible for migrants to be held in custody for 16 hours for identity check purposes.

Support to irregular migrants is no crime

The "solidarity offence" was introduced in French law in 1945 and made "supporting, directly or indirectly, the entry, the circulation, or the irregular stay of a foreigner" punishable by a fine and a maximum of one year's imprisonment (the minimum prison sentence is one month). The law was amended several times and made more stringent in 1972, 1976, 1991, 1994, 1996 and 2003, with a fine reaching the amount of €30,000 and up to 5 years' imprisonment.[2]

Although Article 27 of the Schengen convention requires states to "impose appropriate penalties on any person who, for financial gain, assists or tries to assist an alien to enter or reside within the territory…in breach of that Contracting Party's laws," the French legislation made it possible to harass individuals and sanction any kind of support provided to irregular migrants - whether for financial gain or not.

In 2003, a petition was launched by 15 organisations and widely supported by intellectuals and public figures to denounce a law which aimed to counter solidarity and efforts for irregular migrants to live in dignity. [3]

Criticism reached its peak in 2009 when the government decided to get rid of the Calais "jungles" - i.e. informal settlements in which migrants lived - with many people arrested by the police on suspicion of facilitating the irregular stay of migrants.

The case of a retired woman arrested by the French border police at 7.30 am in February 2009 and held in custody for allowing migrants to recharge their phones in her house is emblematic. A demonstration was organised in March 2009 stating that "if solidarity is a crime, we ask to be tried for this offence."

In April 2009, the then Interior Minister Eric Besson argued that "there is no such thing as a 'solidarity offence'" and that "in the 65 years that the law has existed, no one in France has ever been condemned to have hosted or supported a migrant in an irregular situation".

The migrant rights organisation GISTI (Groupe d'Information et de Soutien aux Travailleurs Immigrés) proved him wrong by drawing up a list of cases since 1986 in which people had been arrested or interrogated by the police after assisting irregular migrants.

GISTI has highlighted several pieces of legislation still in place that sanction providing support to irregular migrants - carriers' liability, sanctions against employers, defamation laws - and argues that the current political context tends to criminalise irregular migration by all means.[5]

The Ombudsman recently criticised police harassment in the Calais region targeting migrants and organisations. [6]

Custody by another name for irregular migrants

Other amendments to the Code on Entry and Stay of Foreigners saw Parliament provisions making it possible to hold a migrant in custody on the sole basis that they are irregular.

However, it seems that little has changed - without mentioning custody, the amended provisions allow the police to "hold" a migrant for up to 16 hours to check whether the person has the right to circulate or stay in the country.

The amendments are an attempt to bring French law on the detention of irregular migrants into line with European law, which, based on two 2011 cases in the Court of Justice of the European Union (ECJ), does not allow for the automatic detention of irregular migrants and emphasises that detention should be used as a last resort only for the purpose of removal. [7]

The ECJ recently emphasised that the EU Returns Directive does not oppose penal sanctions directed against irregular migrants, but noted that detention can only be justified if an individual is likely to abscond. [8]

Parliament's amendments comes after a ruling by the Cassation Court on 4 July, which said that irregular migrants could not be arrested and held in custody for the sole reason of being in an irregular situation.

Irregular stay was previously considered as a criminal offence and migrants could be arrested and held in custody for up to 24 hours for an identity check if they were suspected of staying irregularly on the territory.

If the migrant was found to be in an irregular situation, they could then be imprisoned or deported. It is estimated that about 60,000 migrants are held in custody each year, while an average of 200 people are imprisonment and 100,000 removal procedures are launched annually.

The new measures - condemned as "custody called retention" - have been fstrongly criticised by migrant rights organisations like France Terre d'Asile, the Cimade, and GISTI. [9]

The regular identity check procedure in France allows police officers to hold anyone in custody for four hours, but the new legislation creates a state of exception where the law applies differently to non-nationals.

Moreover, the law does not specify where migrants may be "held" although it is likely that police stations will be used for this purpose. A lawyer will only be present for 30 minutes at the start of the procedure.

According to the GISTI's president, Stéphane Maugendre:

"We call it the 'comfort custody', i.e. the authorities have time to issue a removal order. Everybody is fine with it, except the person in custody, deprived of liberty". [10]

[1] Assemblée Nationale, Texte Adopté 69: Projet de loi relatif à la retenue pour vérification du droit au séjour et modifiant le délit d’aide au séjour irrégulier pour en exclure les actions humanitaires et désintéressées, 19 December 2012
[2] GISTI, « Acharnements législatifs » Délit de solidarité, Violaine Carrère and Véronique Baudet, Plein Droit n° 59-60, mars 2004
[3] Collective Action,
Manifeste des délinquants de la solidarité, 27 May 2003
[4] Collective Action, Si la solidarité devient un délit, nous demandons à être poursuivis pour ce délit!, 23 March 2009
[5] GISTI, Délit de solidarité: Bessonment!, 21 April 2009
[6] Statewatch News, Treatment of migrants and asylum-seekers in Calais and French overseas territories denounced by national Ombudsman and European Court of Human Rights, 19 December 2012
[7] ECJ, Hassen El Dridi, C-61/11 PPU – 29 April 2011; ECJ, A. Achughbabian c/ Préfet du Val-de-Marne, C-329/11, 6 December 2011
[8] ECJ, Md Sagor, affaire C-430/11, 6 December 2012
[9] 'Sans-papiers : "C'est une garde à vue qui s'appelle 'retenue'"', Céline Rastello in Le Nouvel Observateur, 9 November 2012
[10] Garde à vue des étrangers : qu'est-ce qui change?', Céline Rastello in Le Nouvel Observateur, 6 July 2012


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