Accompaniment to the borders can be disposed by the relevant Prefet for a foreigner who has illegally entered or resided in France. The accompaniment can not be carried out before 48 hours have expired since the notification of the order , if notified by administrative procedure, or 7 days, if notified by post. The order can be enacted if the foreigner is not an EU or EEA national and his/her residency or stay document has expired and has not been renewed, or if s/he has no document justifying his/her presence in France. The stay document can also be revoked especially in case the foreigner poses a threat to public order. In that case an accompaniment order generally follows.

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Accompaniment is disposed against a foreigner who has been sentenced for falsifying or manipulating a residency or other document permitting his/her stay in France. Also accompanied to the border can be a foreigner without visa or with a short term visa whose behavior constitutes a threat to public order.

The notification of the “Arreté préfectoral de reconduite a la frontiére” happens administratively usually in case the foreigner is already in a detention place. In that case the foreigner has the right to call a lawyer of his/her choice.

The foreigner who has received notification can lodge an appeal against the order within 48 hours if notified administratively or 7 days if by post at the local Administrative tribunal, which must decide within 48 hours on the appeal in a public hearing. Against the decision of the Administrative Tribunal, if negative, the foreigner can appeal to the State Council (Conseil d’Etat) within one month. If this decision is also negative the accompaniment can take place, if necessary through the use of force. If the foreigner escapes from the accompaniment process or gives false identity s/he can be subjected to a criminal proceeding which may lead to imprisonment for up to three years. If the foreigner subjected to the accompaniment order is directly arriving from another EU country, s/he is handed over to the authorities of such country.

Expulsion can be ordered by the Prefet in case a foreigner poses a threat to public order and security. In cases of particularly serious threats to the security of the State, the order can be issues directly by the Minister of the Interior. The foreigner concerned is advised that an expulsion order is being sought against him/her at least 15 days before the hearing of a special commission on expulsions, where the foreigner can appear with the help of a legal counsel and interpreter if requested. In certain cases of absolute urgency and necessity related to the security of the State or public security, the foreigner may be ordered to remain confined at home while waiting for the commission’s hearing. The decision to expel a foreigner can be appealed against before the administrative tribunal, and, thereafter, before the State Council.

The prefect can in any case overrule a decision of the commission against expulsion. When there are reasons of absolute urgency related to the security of the State or other superior interests, the foreigner may be expelled without prior notification.

Children below the age of 18 can not in any case be expelled or accompanied to the border. Also protected from all forms of expulsion are, among others

• the foreign parent of a child national of France if the parent is the guardian of the child and the foreigner who regularly resides in France for at least 10 years, as long as the title for residing is not for study purposes,
• the foreigner regularly living in France whose state of health requires medical care that s/he can not obtain in his/her country of origin.

The foreigner who has been hit by a expulsion or accompaniment order and who can not leave the territory immediately can be administratively detained for a maximum of 12 days. Form the start of detention the foreigner must be fully informed of his/her rights and be given access to a legal counsel, an interpreter and consular assistance if s/he requests it. The competent judge for the area (Procureur de la Republique) must be immediately informed of the detention. The Prefet who is responsible for the detention is obliged to give information about the detainee, her/his place of detention, etc. to his/her lawyer and others.

Concerns have been consistently expressed over the years about the effective conditions of detention and the behavior of police forces towards people held in detention including administrative detention. Mistreatment and poor conditions of detention in police stations are reported; persons of North African or African origin, mostly immigrants and asylum seekers appear to be particularly affected by such malpractice. In most cases, despite the existence of codes of conduct for law enforcement officials and training courses on implementation of such codes and laws protecting people in detention, there is little, if any, investigation of complaints of ill-treatment by the internal administration of the police and other security forces. Ill-treatment of detainees especially of migrant background contributes to create tensions between security forces and migrant communities; this is compounded by under representation of migrant communities in French police forces.

In certain cases the criminal judge can pronounce a order of Interdiction du Territoire Francais against a foreigner, for instance in case s/he has been condemned for crimes related to drug trafficking or if the foreigner has already escaped from an expulsion or accompaniment procedure. Such order can not be pronounced against foreigners who have significant family and social ties with people legally residing in France except in cases of exceptional gravity. Always protected are minors from this type of interdiction; parents of French minors who exercise guardianship of the child or foreigners legally residing for at least 10 years also are protected from ITF.

Analysis provided by: Antonella C. Attardo PhD (History of Law), Italy.

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