France, the "motherland" of asylum, is rapidly adjusting its refugee policies to the most restrictive EU standards, Jean-Pierre Alaux (GISTI, Paris) suggests in the following report, presented to the Basso Tribunal on Immigration and the Right of Asylum in Berlin (8-12 December).
FECL 30 (December 1994/January 1995):
In France, the right of asylum is, theoretically, based on two pillars, one being the Geneva Convention on Asylum, the other a provision in the constitution permitting the introduction of a particular national right - one could define it as "territorial sanctuary" or "humanitarian sanctuary" - to protection for victims of persecution anywhere in the world. This latter national protection, however, remains embryonic and a matter of governmental discretion, as legislation necessary for an implementation of the constitutional principle is both scarce and restrictive.
Thus, this form of protection has always been applied sparingly as an arbitrary "act of grace" rather than a right. This explains why, for example, the Haitian ex-dictator, Jean-claude "Baby Doc" Duvalier, is among the beneficiaries of the national constitutional scheme of protection, whereas the great majority of his victims among the 60,000 Haitians in France are denied protection and doomed to a life spent under cover, under permanent threat of deportation.
As a result of this legal situation, which is plainly a consequence of political choices, while France offered sanctuary to an average 350,000 refugees at the end of the 40s and the beginning of the 50s, today, their number is only 140,000 with convention status plus a small number authorised to stay on humanitarian grounds according to national law. In the whole of 1993, France granted refugee status to just 14 Algerians. In the first seven months of 1994, despite increased political tension in the former colony, the corresponding number was 10. Such figures say more about French authorities' present contempt for the fate of persecutees than any legal analysis.
General legal framework
Since the end of World War II, an ordinance of 2 November 1945 stipulates the conditions of entry and stay of foreigners in France. The ordinance did however not deal with refugees, considered as not subjected to regular foreigner legislation. This has changed with the introduction of the law of 24 August 1993, an amendment of the 1945 ordinance, that contains a series of provisions restricting refugees' rights of entry and of access to the asylum procedure (see FECL No.17, p.7, 8; No 18, p.5; No. 21, p.2; No.23, p.8).
This change is significant in itself. By, for the first time, placing refugees in the same legal framework as other foreigners, France demonstrates that it intends to shut its doors not only to immigrants but also to refugees.
The law introduces the following categories of asylum seekers:
- Those who file their application from within the French territory, after crossing its land borders;
- Those arriving by airplane, ship, and (in the near future) by train.
For the latter group, their very access to the asylum procedure and their entry depends on getting the prior assent of the Interior Ministry based on a summary evaluation of the asylum application by the Ministry of Foreign Affairs. The applicants are held in formally extra-territorial transit zones pending the decision of the Interior Ministry. Whenever an application is found to be "manifestly unfounded", the applicant is deported without ever having made a step on French territory. Thus, nothing is left of the constitutional principle of "territorial sanctuary". A specifically French tradition of asylum has all but ceased to exist.
The principle of a general right to seek protection in France was further undermined by a reform of the constitution in 1993 (Law of 30 December 1993: see FECL No 21, p.2). The effect of this constitutional amendment is to allow the administration to enforce territorial restrictions in line with the Schengen and Dublin conventions to the right to apply for asylum. France is no longer obliged to receive "any person persecuted due to his activity in favour of liberty"; nor is he even entitled to have his claim considered.
According to the new law of 24 August 1993, asylum seekers entering France from another EU member state will be barred from applying for asylum and will be handed over to the country responsible for handling the asylum procedure under the above conventions. As for asylum seekers having arrived via a non-member state that, according to French assessment, can be considered a third safe country, they may be turned back to this state, if:
- they constitute a "serious threat to public order";
- their application is deliberately fraudulent, amounts to an "abuse" of the asylum procedure or aims only at stopping a deportation order.
Formally, the above categories of refugees still have the right to file an application with the national refugee office, the OFPRA, which will make its decision under an accelerated procedure. If the application is turned down, they are free to appeal against the decision to the refugee appeal board (CRR), but the appeal will not cause their deportation to be suspended.
Undoubtedly, the "European imperative" has served to neutralise the only French law that guarantees down the universal right of asylum.
While the old national tradition of humanitarian or territorial sanctuary has more or less been done away with, the French authorities are applying an ever more restrictive interpretation of the refugee status under the Geneva Convention: in 1993, of a total of merely 27,564 applications, less than a third were approved.
Yet, in the wake of the massive arrival of refugees from the former Yugoslavia, France all of a sudden re-introduced a perverted form of "territorial sanctuary" with the obvious goal of thereby escaping obligations to grant permanent protection according to the Geneva convention. This new scheme of reception is not based on legislation, but on administrative circulars that do not have any force of law. Therefore, an ex-Yugoslav national cannot appeal a refusal of the administration to enforce the circulars.
As a consequence of this blatant degeneration of constitutional rights, many Yugoslav exiles were forced into illegality. Moreover, the arbitrary administrative scheme has contributed to effectively dissuading refugees from former Yugoslavia from seeking protection in France. Indeed, while there are currently over 300,000 Yugoslavians in Germany, France has received only approximately 20,000.
The situation is even worse for Algerians. Indeed, there is simply no directive or circular instructing the authorities concerned on how to treat them. Moreover, according to the French interpretation of the Geneva Convention, refugee status is granted only to victims of state-sponsored persecution. Most Algerian persecutees are fleeing from the Islamic fundamentalists opposed to the government. As a consequence, only 1.5 per cent of all Algerians seeking protection in France since the abolition of elections in their country in 1991, have been granted refugee status.
Many Algerians expressly seek temporary protection. Refugee status under the Geneva convention entails the automatic loss of citizenship in the applicant's country of origin. In particular refugees who feel strong concern for the political future of Algeria view such a renunciation as an "excessive desertion" of their country of origin. Due to the absence of clear regulations, their fate very much depends of the mood of each prefecture [regional branch of the central administration]. At best, they will get a provisional stay permit that must be renewed every three months. Work permits are seldom granted.
Since the entry into force of a new visa procedure on 6 October 1994, Algerians must fill in an obligatory questionnaire. As all French consulates in Algeria have been closed for security reasons, the form must be sent to the new consular service in Nantes (Western France). The use of the official form is obligatory and applicants are not permitted to add additional documents in support of their application. While the form includes squares for applications on tourism, professional, family, and health grounds, the possibility of applying for a visa on persecution grounds is not even provided for. Thus, under the present circumstances, no Algerian can apply for an entry visa on the grounds of fear of persecution. At a later stage, this "omission" on the application form makes it easy for the French authorities to refuse a prolongation of stay on humanitarian grounds to the few lucky who have been granted an entry visa. Prolongations are accorded to only 10 per cent of applicants. As candidates for this type of protection have had no opportunity to cite persecution as their reason for travelling to France, a later application for prolongation of the stay on these grounds is likely to be rejected as inconsistent - and the game is over!
In the view of the French government, the situation in Algeria so peaceful that two agreements with the Algerian government have been signed, as late as April 1994, introducing further administrative restrictions on free movement of persons between the two countries. More than that - a confidential protocol facilitates the deportation back to Algeria of undocumented persons who appear to be Algerian nationals. This must be deduced from a clause of the provision under which Algeria may request a revision of the protocol "when the Algerian authorities assess that the number of persons removed [from France] although they actually did not have Algerian citizenship is abnormally high". The protocol leaves no doubt about French policy objectives.
The common feature of all recent legislation in the field of asylum is that it gives considerable powers to administrative bodies in charge of immigration. The prefectures, which now decide upon an applicant's access to the asylum procedure, have become a formidable filter, all but de facto abolishing the stated principle of independence of the national refugee office, OFPRA, and the refugee appeal board, CRR.
Even before, the independence of OFPRA was questionable. As a matter of fact, the OFPRA is attached to the Ministry of Foreign Affairs, whose main objective, just like the Interior Ministry's, is a tight control of immigration.
Thus, since the early 80s, any rise in the number of asylum seekers has almost automatically entailed a reduction of the admission quota: in 1981, with a total of 19,863 applicants the admission quota was 77.7 per cent. It dropped to 15.5 per cent in 1990, when the number of applications rose to 54,813. Following the introduction of restrictive legislation, the number of asylum applications decreased to 27,564 in 1993 which at once led to a larger admission quota of 27.9 per cent.
The doctrine of the OFPRA and the jurisprudence of the CRR mainly serve as a means to give this policy of restrictive immigration control an appearance of legal independence and objectivity.
With regard to Yugoslavia, the OFPRA, in December 1992, imagined a "confidential" doctrine aiming at excluding persons belonging to an ethnic minority in their region of residence from refugee status, whenever they "could have found" refuge in another part of ex-Yugoslavia where their ethnic group forms a majority. In other words, in their eagerness to reduce the number of recognised refugees the French authorities have resorted to a reckless de facto approval of racist "ethnic cleansing" policies.
With regard to Algeria, the extremely restrictive practice obviously expresses the government's concern about a feared massive influx of refugees. Interior Minister Charles Pasqua is currently organising the setting up of a veritable wall all along the Mediterranean sea. Upon his initiative, the ministers in charge of immigration and anti-terrorism in Southern Europe and North Africa will meet before the end of this year in order to conceive a common policy of "containment" aimed against the Algerians. Should Algeria pass from a situation of "low-intensity" terrorism to a situation of open civil war, Europe, on French incentive, is very likely to treat the Algerian boat-people the same way as the USA treated the Haitians in recent years and the Cuban balseros in recent months.
No right of asylum without free movement
There can be no right of asylum unless the right to flee is strictly respected. This goes hand in hand with the unconditional right to enter the territory of host countries. What point is there in endlessly discussing the quality of asylum examination procedures, when the would-be asylum seekers can neither leave the places where they are persecuted nor cross the borders of the states were they want to seek protection?
In France, an amendment of 6 July 1992 of the 1945 ordinance on entry and stay of foreigners provides for the creation of so-called "waiting-zones" at ports and airports for foreigners without a visa and asylum seekers who arrived by ship or plane. The French parliament is currently discussing the extension of this system to train stations with international traffic. In all these zones, asylum seekers may be detained for up to 20 days with no chance to have the substance of their claim examined. Instead, they are subjected to a summary assessment for determining whether their claim is "manifestly unfounded".
Since February 1992, it has become almost impossible for Haitian refugees to travel to France, following the introduction of stringent pre-flight passenger checks by Air France in Port-au-Prince. Indeed, the recent amendment of the 1945 ordinance includes sanctions against carriers transporting passengers denied entry in France.
Enquiries carried out in October 1992 and December 1993 at the Air France offices in the Caribbean showed that, like its commercial rivals, this state-owned company does not want to take any financial risks and therefore "filters" passengers upon departure. Obviously, the most threatened asylum seekers who have neither the time or the freedom to engage in complicated and time-consuming bargaining with consular services are the first victims of this infringement on the freedom of movement.
Jean-Pierre Alaux, GISTI (Paris)
The above contribution is an abridged and edited translation of Le Droit à l'Asile en France, report by Jean-Pierre Alaux to the Basso Tribunal on the right of asylum in Berlin, 8-12 December, 1994. The complete report (7 p.) in French is available from GISTI, 30, rue des petites Ecuries, F-75010 Paris; tel: +33/1 42 470760; fax: +33/1 42 470747.