CASE OF BOUJLIFA v. FRANCE
No violation of Art. 8
8. Mr Driss Boujlifa was born in Morocco in 1962. He entered France at the age of 5 when he joined his father under the family reunion procedure. Three of his eight brothers and sisters have French nationality. When he was 20 the applicant committed a number of criminal offences. On 10 May 1985 the Bourg-en-Bresse Juvenile Assize Court sentenced him to six years’ imprisonment for armed robbery. On 29 November 1985 the Lyon Court of Appeal sentenced him to eighteen months’ imprisonment for robbery. 9. When he had served these sentences he was extradited to Switzerland pursuant to a decree issued in 1984 to serve a prison sentence for theft, from 5 May 1987 to 5 August 1988. At the end of that period he returned to France and went to live with his parents. He has asserted that he was gainfully employed from June 1989 to January 1991. 10. Not having had a valid residence permit since February 1983, Mr Boujlifa went to the Prefecture of Alpes-Maritimes on 2 January 1990 in order to regularise his situation. On 21 November 1990 he was informed that deportation proceedings had been commenced against him on account of the convictions pronounced on 10 May and 29 November 1985. 11. On 8 April 1991 the Minister of the Interior made the following order against the applicant: “Having regard to sections 23 to 25 of Ordinance no. 45-2658 of 2 November 1945, as amended, concerning the conditions of entry and residence of aliens in France, Having regard to Decree no. 82-440 of 26 May 1982, Whereas Boujlifa Driss, born on 6 June 1962 at Casablanca (Morocco), committed in 1982 the offences of attempted robbery, armed robbery and receiving stolen goods, Whereas on account of his conduct the presence of the above-named alien in French territory constitutes a serious threat to public order, Having regard to the favourable opinion of the board provided for in section 24 of the Ordinance, of 13 December 1990, On a proposal by the Prefect of Alpes-Maritimes, IT IS HEREBY ORDERED AS FOLLOWS Article 1: the above-named person is enjoined to leave France; Article 2: the Prefect of Police and the Prefects are instructed to serve and execute this order.” 12. On 21 and 24 May 1991 respectively the applicant applied to the Nice Administrative Court for an order quashing the deportation order and an order staying its execution. He relied in particular on his right to respect for his private and family life, as guaranteed by Article 8 of the Convention. 13. On 20 December 1991 that court dismissed the applications in the following terms: “The submission based on the failure to give reasons for the impugned decision: The submission based on an alleged error of law in the application of section 25 of the Ordinance of 2 November 1945: ... Notwithstanding Mr Driss Boujlifa’s assertion that he has been lawfully resident in French territory since 1967 and that when he entered the territory he was 5 years old, the documents in the case file show that he was extradited, had to leave the territory on 5 May 1987 and was imprisoned in Switzerland until August 1988. Even though the applicant did not leave French territory voluntarily on that occasion, he ceased to be normally resident in France within the meaning of section 25 of the above-mentioned Ordinance. He subsequently returned to France and stayed there unlawfully. The fact that he then applied for a residence permit and the assertion that he had received no explicit reply to an application for a residence permit he had made in 1982 have no bearing on the fact that he remained in French territory unlawfully. It follows that the submission based on a breach of the provisions of the second paragraph of section 25 of the Ordinance fails on factual grounds. The submission based on manifest error: It does not appear from the documents in the file that the aliens deportation board provided for in section 25 of the Ordinance or the Minister of the Interior failed to examine all the evidence relating to the applicant’s conduct and the various aspects of his situation in order to determine whether, after he had committed a number of criminal offences and been sentenced both in France and in Switzerland to several terms of imprisonment, his presence in French territory, at a time when he was living there unlawfully, constituted a serious threat to public order. Although Mr Driss Boujlifa asserts that he completed his studies in France, that he has a steady job there and pays rent, that some of his brothers and sisters have acquired French nationality, that he has committed no further offences since serving the sentences mentioned above, that he is perfectly integrated into French society and that he has not maintained any links with Morocco, those facts are not sufficient to establish that the Minister of the Interior made a manifest error. The submission based on Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms: … In support of his arguments to the effect that the impugned decision constituted such a serious interference in his family life as to exceed what was necessary to preserve public order, Mr Driss Boujlifa asserts that he no longer has any family ties with the country whose nationality he possesses, that he does not speak its language and has not lived there since the age of 5, that his whole family lives in France and that his youngest brothers and sisters have acquired French nationality. However, it appears from the documents in the file that the impugned decision, which was based on defence of public order, was necessary, in view of the applicant’s conduct and the seriousness of the offences he had committed, for the defence of that order. That being so, it did not breach Article 8.” 14. On appeal by Mr Boujlifa, the Conseil d’Etat gave judgment on 18 February 1994. It upheld the Administrative Court’s judgment in the following terms: “... Mr Boujlifa committed and was convicted of armed robbery, receiving stolen goods and assault with a tear-gas spray. The impugned deportation order was necessary, in view of the seriousness of those offences, for the defence of public order, and did not, given that Mr Boujlifa is unmarried and childless, interfere disproportionately with his right to respect for his private and family life. That being so, it did not breach Article 8 of the Convention. It follows from all the above that Mr Boujlifa fails in his claim that in the impugned judgment the Nice Administrative Court wrongly dismissed his application to have the Minister of the Interior’s order of 8 April 1991 requiring him to leave France set aside.” 15. Since August 1988 the applicant has lived in France without a residence permit or a work permit; since January 1991 he has cohabited with Miss V., a French national. 16. In French law deportation is a public-order measure, not a criminal penalty (Constitutional Council decision no. 79-109, Droit constitutionnel, 9 January 1980, Recueil Dalloz Sirey 1980, 249; Conseil d’Etat, 20 January 1988, Elfenzi, Actualité juridique, Droit administratif 1989, 223; and Criminal Division of the Court of Cassation, 1 February 1995, Juris-Classeur périodique 1995, édition générale, II, 22463). It applies to aliens with a residence permit who live in France, but not to those who have entered illegally and against whom only a removal order may be made. The deportation of aliens is governed by the provisions of the Ordinance of 2 November 1945 concerning the conditions of entry and residence of aliens in France. Section 1 of the Ordinance provides: “all persons who do not have French nationality, whether they have a foreign nationality or are stateless, shall be deemed to be aliens.” The basic provisions of the Ordinance have been amended by, inter alia, Law no. 80-9 of 10 January 1980; Law no. 81-82 of 2 February 1981; Law no. 81-973 of 29 October 1981; Law no. 86-1025 of 9 September 1986; Law no. 89-548 of 2 August 1989; Law no. 91-1383 of 31 December 1991; Law no. 93-1027 of 24 August 1993; and Law no. 93-1417 of 30 December 1993. The Law of 10 January 1980 prescribed six grounds for deportation and substantially altered its role; deportation had been intended to guard against threats to public order, but it was now also used as punishment in certain cases where there had been a breach of the immigration rules. That Law was rapidly replaced by Law no. 81-973 of 29 October 1981, in which the following two grounds for deportation were retained: (i) the first, to which the ordinary rules of procedure applied, was where “an alien’s presence on French territory constitute[d] a serious threat to public order” (sections 23 to 25); (ii) the second, for which there was a special procedure, concerned “cases of extreme urgency [and] absolute necessity for the security of the State or public safety” (section 26). That Law also prescribed the categories of aliens who could not be deported under the ordinary procedure and who were protected because of their age, the length of time they had spent in France, their family ties there, the services they had rendered and the fact that they had no criminal record. The provisions relating to the definition of the protected categories, the substantive conditions and the safeguards provided under the ordinary procedure were alternately amended and restored by subsequent legislation. In 1991 it was a prerequisite to instituting the ordinary procedure used in the instant case, governed by sections 23 to 25 of the Ordinance of 2 November 1945, that “the alien’s presence on French territory constitute[d] a serious threat to public order”. Recourse to the special procedure required extreme urgency and an “absolute necessity for the security of the State or public safety”. 17. This procedure may properly be described as adversarial and applies where “the alien proves that he entered France legally and that he is the lawful holder of a residence permit” (section 24). An aliens deportation board for the département must be consulted. Such boards are composed of the president of the tribunal de grande instance of the administrative capital of the département or a judge delegated by him, who acts as chairman, a judicial officer (magistrat) appointed by the general assembly of the tribunal de grande instance of the administrative capital of the département and an administrative court judge. Its hearings are held in public. In 1991 the Minister of the Interior had a reduced discretionary power. Since Law no. 93-1027 of 24 August 1993, the board’s opinion is no longer binding on the Minister. 18. Deportation orders made to preserve public order are intended to guard against – and not to punish – breaches of public order. With the sole exception of minors, no category of aliens is protected. Under the special procedure none of the safeguards contained in the ordinary procedure are available. Thus, aliens are not informed in advance that their deportation is being considered, do not receive any special notification, are not given an opportunity to make representations and do not appear before the board; the board does not hold a meeting, not even in the alien’s absence. No formal steps have to be taken before the deportation order is issued and the order does not have to contain reasons. 19. The condition relating to absolute necessity for the security of the State or public safety was introduced by the Law of 29 October 1981. It was replaced in the Law of 6 September 1986 by a requirement of “a particularly serious threat to public safety”, but was reintroduced in the Law of 2 August 1989. In practice section 26 also covers cases concerning violent and anti-social behaviour by an alien over a long period since the age of 10 (Conseil d’Etat, 23 December 1987, Tahraoui, Recueil des arrêts du Conseil d’Etat (“Rec.”) p. 430) and rape and indecent assault with violence or taking the victim by surprise (Conseil d’Etat, 24 May 1993, Igartúa Amondaraín, Rec. p. 163, and Conseil d’Etat, 23 June 1993, Bouchelkia, Droit administratif 1993, no. 412). 20. To the extreme urgency requirement, laid down as from 1945, a requirement of “absolute necessity for the security of the State and public safety” was added in 1981. Extreme urgency is in practice relied on to ensure that aliens who have been convicted by the criminal courts and are serving their sentence can be deported as soon as they are released. Its substance is assessed on a case-by-case basis by the Minister, subject to review by the administrative courts. For a long time the Conseil d’Etat ruled that the question whether there was any urgency itself came within the unfettered discretion of the Minister. From 1970 it interpreted the requirement so as to limit its application solely to cases where the deportation was to take place within a very short time (Conseil d’Etat, 16 January 1970, Mihoubi Tayeb, Rec. p. 25). It later found that the urgency requirement had been satisfied where the alien was due to be released shortly (Conseil d’Etat, 13 November 1985, Ministry of the Interior v. Barrutiabengoa Zabarte, Rec. p. 321), then held that it was lawful to use the procedure against an alien who had been released from prison several months before the deportation order was made (Conseil d’Etat, 24 June 1988, Hamade, Rec., tables, p. 933, and 8 April 1994, Zehar, Dalloz 1994), or who had obtained early release seven months before the issue of a deportation order (Conseil d’Etat, 3 February 1995, Kaouche, application no. 145404, Droit administratif, May 1995, p. 10). It also accepted that the Minister could use the extreme urgency procedure where, in connection with a deportation initially commenced under the ordinary procedure, the board had expressed an opinion against deportation. The Conseil d’Etat held that practice to be lawful “provided that the requirements of section 26 were satisfied at the time the order was made” (Conseil d’Etat, 24 May 1993, Igartúa Amondaraín, Rec. p. 163). 21. A deportation order issued by the Minister of the Interior remains in force indefinitely. Since 1986 such orders embody authority to execute and may be enforced without further order, using force if necessary. 22. In general, deportation is carried out without delay; however, the effects of the deportation order are not exhausted as a result of its execution. Thus, deported aliens are precluded from returning to French territory for so long as the order has not been rescinded. If they do return, they are liable to the penalties applicable to cases of avoiding or attempting to avoid the execution of a deportation order and returning to France without leave to enter. Furthermore, according to a circular issued by the Minister of the Interior on 8 February 1994 concerning the application of the Laws of 24 August and 30 December 1993, although the celebration of the marriage of an alien on French territory is not subject to any condition regarding the lawfulness of his stay, a prefect who is informed that the alien wishing to get married is in breach of the immigration rules may, before the wedding, make an order for his removal under section 22 of the Ordinance of 1945 and, after the ceremony, decide to expel him pursuant to that provision. The Conseil d’Etat has held that an order for removal could lawfully be made against an alien who was about to marry a French national (Conseil d’Etat, Judicial Division, 26 July 1991, Lazaar, application no. 121849). 23. As deportation orders are not subject to any special rules, an application for judicial review may be made to the administrative court having territorial jurisdiction under the ordinary rules. Such applications have no suspensive effect and may therefore be accompanied by an application for a stay of execution even where the order has been enforced and the alien is outside France. On 31 July 1996 (application no. 149765), the Conseil d’Etat set aside a deportation order made against an Algerian who was born in France and had always lived there, on the grounds that: “... his close relatives live in France 24. The alien concerned may, at any time, and as often as he chooses, apply for the deportation order to be rescinded. Where the application is submitted less than five years “after the final execution of the deportation order”, the Minister of the Interior is not subject to any specific procedural requirements in reaching his decision. If the application is submitted “after a period of five years ..., it may be rejected only after the opinion of the deportation board for the département has been sought; the alien may be represented before the board”. Consultation is required even where the deportation order was made under the procedure for cases of extreme urgency. Since the Law of 24 August 1993 came into force, the board’s opinion is no longer binding on the Minister. The Conseil d’Etat had considered that a deportation order was executed on the date the alien left French territory and that, in consequence, even if he subsequently returned to France illegally, the five year period ran from that date (Conseil d’Etat, 18 November 1988, Higoun, Rec. p. 415). However, section 28 bis, added to the Ordinance of 1945 by the Law of 24 August 1993, now prevents a deportation order being rescinded if the alien has not left France or if he has returned there illegally: “An application ... for the rescission of a deportation order ... submitted after the expiry of the time-limit for making an application for judicial review cannot be granted unless the foreign national resides outside France.” An application to which there has been no response within four months is deemed to have been rejected by the Minister of the Interior. Where the Minister of the Interior decides not to enforce a deportation order whilst at the same time refusing to rescind it, a compulsory residence order is made against the alien. If the alien continues to disturb public order, he may be deported. That constitutes a new decision, separable from the deportation order and in respect of which an application for judicial review may be made to the administrative court. In considering the application, the court examines the conduct of the alien during the period when his presence in France was tolerated. In reviewing the lawfulness of the measure the court therefore examines the position at the date of its judgment. However, a ground of appeal on the basis that the alien had mended his ways after the date of the order is ineffective (Conseil d’Etat, 27 November 1985, Hamza, Rec. p. 712). The fact that a deportation order has been rescinded does not constitute leave to enter. If leave is sought, it may lawfully be refused. 25. Article 21-27 of the Civil Code, which is relevant in this case, provides: “Subject to the provisions of Articles 21-7, 21-8 [concerning aliens born in France of foreign parents] and 22-1 [concerning the minor children of parents who have acquired French nationality], no one may acquire French nationality or be restored to that nationality if either (i) he has been convicted of a serious crime (crime) or other major offence (délit) harmful to the fundamental interests of the nation or of an act of terrorism or (ii) whatever the nature of the offence, if he has been sentenced to a term of imprisonment, not suspended, of at least six months. (Law no. 93-1417 of 30 December 1993) The same shall apply to a person who is the subject of a deportation order which has not been expressly set aside or rescinded or to a ban on re-entering French territory that has not expired. (Law no. 93-1027 of 24 August 1993) The same shall apply to persons whose stay in France is unlawful under the laws and treaties relating to the residence of aliens in France.”