Bastien Charaudeau Santomauro, lawyer
The right to asylum is enshrined in French, European and international law. However, migrants arriving at the French-Italian border are regularly pushed back without a chance to ask for French protection. To understand this discrepancy, we must look at the ambiguities of our legal system.
Since November 13, 2015, France has started to control its European borders, also known as “internal bordersIn European Union law, “internal borders” separate France from other EU countries within the Schengen area. They are distinct from the “external borders” which divide an EU member state and a third country. » (with Italy, Spain, Belgium, Germany, Luxembourg, and Switzerland). In doing so, the government suspended the rule of free movement specific to the Schengen areaThe Schengen area is the area of free movement within the European Union. Its primary rule provides that member states are not allowed to control their internal borders.. This measure is supposed to be exceptional and temporary. But its persistence has given rise to a new “border regime” that is, a set of norms and practices that regulate the movement of people at the borders of the state. Based on the study of this new regime at the French-Italian border, we will consider the gap between legal texts and the field concerning the fundamental right to ask for asylum. To what extent does the practice of law and its interpretation create a leeway that allows state actors to distort certain rules ?
The Right to Asylum, a Transversal Legal Regime
In France the right to asylum, which protects people fleeing risks of persecution and armed conflict, is embedded in a complex legal regime in which national and international law are intertwined. Contemporary asylum is largely derived from the 1951 Geneva ConventionSee the text on the UNHCR website : https://www.unhcr.org/1951-refugee-convention.html. relating to the Status of Refugees and its 1967 Protocol, which are international treaties. But a considerable portion of the rules of asylum is elaborated by European Union (EU) law which forms, through multiple directives and regulations, the Common European Asylum System. In addition, although the 1950 European Convention on Human Rights (ECHR)See the text on the ECHR website : https://www.echr.coe.int/Pages/home.aspx?p=basictexts&c=. does not directly provide for the protection of asylum, it has been established that it indirectly protects against certain refoulements through the obligation it imposes on states regarding the prohibition of torture and inhuman and degrading treatment (article 3) and private and family life (article 8). Finally, the right to asylum is enshrined in the French Constitution and elaborated in French law, mainly through transposition of EU law. The right to asylum is thus finely woven into a legal system that mixes international law, the ECHR, European Union law and French law, both constitutional and common.
At the French-Italian Border, Asylum in Jeopardy
At the border between France and Italy, the right to asylum is not fully applied. Fieldwork carried out in the Roya Valley and in Briançon and, above all, the attention of border inhabitants and the work of associationsSee Dany Mitzman, « Tales from the Border (7/8): French Alps — Helping hands », InfoMigrants, 8 Dec. 2021. URL : https://www.infomigrants.net/en/post/37046/tales-from-the-border-78-french-alps–helping-hands. such as Tous Migrants, Médecin du Monde, Anafé, Amnesty International—to name but a few—come to the same conclusion : most migrantsAt this border, migrants predominantly originate from Sub-Saharan Africa and the Middle East. intercepted in France near the border with Italy are not able to apply for asylum. This observation is also shared by public institutions in reports such as those of the Contrôleur général des lieux de privation de libertéThe institution in charge of verifying the state’s compliance with the fundamental rights of inmates and detainees in France., the National Consultative Commission on Human Rights and the parliamentary commission of inquiry on migration. People cross the border, arrive in France and, if they are intercepted by border guards, will most often be sent back to Italy without an individual examination of their situation.
This directly challenges the condition of possibility of the right to asylum : being able to register a request to be processed by the French protection system. This essential aspect of asylum—the application—is enshrined in this transversal legal regime mentioned above, including at France’s bordersFor example, the “Asylum Procedures directive”, a European text that provides for common procedures for granting asylum, specifies that its scope covers « all applications for international protection made in the territory, including at the border, in territorial waters or in a transit zoned of the Member States » (Article 3).. How then can we explain that this fundamental right is not quite a reality at the border with Italy ? One might be tempted to answer that the law is simply not applied properly and that it is sufficient for a court, such as the Council of StateThe Council of State (Conseil d’État) is the highest administrative court in France., to sanction irregular policing practices that breach the right to asylum. However, judges who have already considered the issue have not made a ruling capable of changing such practices.
Additionally, public authorities openly articulate a legal discourse on border controls. This means that they mobilize legal norms to justify what they are doing. Accordingly, the problem does not revolve around a lack of law, but rather around the way in which the law is interpreted and implemented. This is about what direction is given to the force of the law. What, in the implementation of the law, makes it possible to legally justify a transgression of a fundamental right that should be enforced ? In other words, how do the authorities manage to escape their international, European, and in some respects constitutional obligations ?
« At the border between France and Italy,
the right to asylum is not fully applied. »
Bastien Charaudeau Santomauro, lawyer
Part of the answer to this question lies in the fact that the law is more malleable than one might think. Legal norms can indeed sometimes be partly indeterminate in their definition and in their application. The law is indeterminate regarding a situation when the legal sources (treaties, European texts, the Constitution, legislative acts, regulations, etc.), the legitimate operations of interpretation or the legal reasoning that relate to it are indeterminate. In other words, when more than one conclusion can be drawn, a priori, from these elements. Incidentally, the less detailed a legal regime is, the more room it leaves for indeterminacy. And the regime that regulates controls at the Italian border is a derogation from the law of the Schengen area and, as such, is very little developed by the texts. How does this malleability of the law unfold at the border ?
Constituting the Border by Diverting Legal Norms
Preliminarily, the question of asylum arises at the French-Italian border only because derogatory controls, explained below, are in place. According to EU law, member states should not carry out systematic border checks. However, they may exceptionally reintroduce them in the case of a “serious threat to public policy or internal securityArticles 25 to 30 of the « Schengen Borders Code », a text of EU law that establishes the rules for internal and external border controls of the member states of the Schengen area. ” for a maximum period of two years. Two things must be emphasized here.
Firstly, France officially justifies these controls by the existence of a persistent terrorist threat, but this is not the real cause. The underlying purpose is that of controlling migration flows, a cause that is not provided for in EU law as a justification for re-establishing controls. The “Schengen Borders Code”, which details border control standards in the EU, even explicitly rejects it. Yet, migration control has been recognized as the main cause for reinstating border checks by the director of European affairs of the Ministry of the Interior in the context of the parliamentary commission of inquiry on migration. This is a diversion of the purpose and rationality of a European rule.
Secondly, France has controlled its European borders since November 2015. In March 2022, it has been more than six years that an exceptional and temporary measure has been renewed. The argument put forward by the government and endorsed by the Council of State is that each time controls are renewed—every six months—there is a new terrorist threat. Since the threat is “renewed”, the countdown of the measure starts from scratch, as if there were no continuity in the rationality of the controls since 2015. A European norm concerning internal security and terrorism is continually being misused for the purposes of migration governance. The law is marshaled to materialize the border through controls, without which the issue of asylum would be non-existent, since everyone would be free to cross the border as provided for by EU law.
Thickening the Border Through Normative Innovation
Once the border is materialized, the question that arises is that of the applicable legal regime, i.e., the set of rules governing the interception of migrants. In France, immigration law has two main regimes that determine the regularity or irregularity of a foreigner’s status : the regime of admission and the regime of sojourn. Admission—can X be admitted to France?—only concerns individuals crossing an external border of France (with a non-EU country). Conversely, the regime of sojourn—can X remain in France?—applies to the rest of the territory, outside the crossing points that define the external borders. If the legal constitution and apprehension of irregularity are always limiting the liberties of foreigners, it must be emphasized that the regime of admission is the more circumscribed of the two in terms of fundamental rights both in theory and in practice. The right to apply for asylum applies to both cases, but the admission regime translates it into a more expeditious procedure with fewer guarantees.
In the territory adjacent to the Italian border, the regime of sojourn should apply by default since admission only concerns France’s external borders and the border with Italy is an internal border. However, first unlawfully, and then by adopting the Asylum and Immigration Law in September 2018, the government enforced part of the admission regime by applying expeditious removal procedures through the issuance of refusals of entry. Innovatively, this law also extended this procedure to an entire area consisting of a ten-kilometer strip along the border line. Thus, while for controls EU law delimits the border to a series of crossing points, the French innovation thickened it legally to a large area.
Legal Arrangements Within the Border
What is going on within this thickened border ? To begin, there is a legal controversy, because at least two decisions, by the Court of Justice of the European UnionSee the press release in English : https://curia.europa.eu/jcms/upload/docs/application/pdf/2019–03/cp190035en.pdf. and the Council of State, partially question the validity of the application of refusals of entry at internal borders. But above all, in this controversy, we observe the emergence of legal arrangements, very much like a bricolage of the law.
To illustrate this, let us take the case of migrant detention. At the border, during the pushback procedure, people are detained in the premises of the border police, particularly in Montgenèvre and Menton Pont-Saint-LouisMontgenèvre is a col and a town at 1800 meters of altitude in the Hautes Alpes département immediately near the Italian border. This pass is one of the main crossing points for migrants. Menton is located at the southern end of the border, in the Alpes-Maritimes département, on the Mediterranean coast. The surroundings of this … Lire la suite. However, the rules covering these detention practices are neither those of the regime of sojourn nor those of the admission regime. In other words, the government has decided to apply part of the admission regime—the refusal of entry, the expedited procedure—without the corresponding detention regime. This aspect is crucial, because detention constitutes a serious restriction on many fundamental freedoms and is strictly regulated in France.
« A European norm concerning internal security and terrorism is continually being misused for the purposes of migration governance. »
Bastien Charaudeau Santomauro, lawyer
This ambiguous qualification is problematic because the fundamental rights of detainees are only guaranteed by specific mechanisms associated with existing legal regimes. The absence of clear categories gives some latitude to state actors at the border. This ambiguity even seriously neutralizes fundamental rights by weakening guarantees of access to rights and judges. These arrangements could be qualified as parajuridical in both senses of the prefix, i.e., what is articulated around the law, but also, against the law. Because they are composite arrangements, certain aspects are sometimes invalidated by judges, but not the overall system that results in migrant rights violations. These arrangements thus become a mode of governance of migration on the margins of the law. The maintenance of a legal regime that derogates from Schengen rules seems to reinforce the State’s ability to play on the ambiguities of the law. It thus derogates from certain fundamental rights and administrative procedures that should apply under international, European, and national law.
- DONADIO G., « The Irregular Border : Theory and Praxis at the Border of Ventimiglia in the Schengen Age », in Amigoni Livio, Aru Silvia, Bonnin Ivan, et al. (eds.), Debordering Europe : Migration and Control Across the Ventimiglia Region, Springer International Publishing, 2021, p. 109‑133. Available online : https://link.springer.com/chapter/10.1007/978–3‑030–56518-3_7
- MIGLIACCIO F., « At the Border Between Italy and France : When Policemen Appear in the Landscape », in Amigoni Livio, Aru Silvia, Bonnin Ivan, et al. (eds.), Debordering Europe : Migration and Control Across the Ventimiglia Region, Springer International Publishing, 2021, p. 221‑229. Available online : https://link.springer.com/chapter/10.1007/978–3‑030–56518-3_12
- Charaudeau Santomauro B., « La condition des migrants sous la réintroduction des contrôles aux frontières : le cas de l’état d’urgence à la frontière franco-italienne », in Benlolo Carabot M. (ed.), L’Union européenne et les migrations, Bruylant-Larcier, 2020, p. 337‑343. Available online : https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4063856
- Anafé, Persona non grata. Conséquences des politiques sécuritaires et migratoires à la frontière franco-italienne, Rapports d’observations 2017–2018, 2019. Available online : https://drive.google.com/file/d/15HEFqA01_aSkKgw05g_vfrcP1SpmDAtV/view
About the author
Bastien Charaudeau Santomauro is a Ph.D. Candidate at Sciences Po Law School and Fox International Fellow at Yale University. He is also a fellow of the French Collaborative Institute on Migration.
|↑1||In European Union law, “internal borders” separate France from other EU countries within the Schengen area. They are distinct from the “external borders” which divide an EU member state and a third country.|
|↑2||The Schengen area is the area of free movement within the European Union. Its primary rule provides that member states are not allowed to control their internal borders.|
|↑3||See the text on the UNHCR website : https://www.unhcr.org/1951-refugee-convention.html.|
|↑4||See the text on the ECHR website : https://www.echr.coe.int/Pages/home.aspx?p=basictexts&c=.|
|↑5||See Dany Mitzman, « Tales from the Border (7/8): French Alps — Helping hands », InfoMigrants, 8 Dec. 2021. URL : https://www.infomigrants.net/en/post/37046/tales-from-the-border-78-french-alps–helping-hands.|
|↑6||At this border, migrants predominantly originate from Sub-Saharan Africa and the Middle East.|
|↑7||The institution in charge of verifying the state’s compliance with the fundamental rights of inmates and detainees in France.|
|↑8||For example, the “Asylum Procedures directive”, a European text that provides for common procedures for granting asylum, specifies that its scope covers « all applications for international protection made in the territory, including at the border, in territorial waters or in a transit zoned of the Member States » (Article 3).|
|↑9||The Council of State (Conseil d’État) is the highest administrative court in France.|
|↑10||Articles 25 to 30 of the « Schengen Borders Code », a text of EU law that establishes the rules for internal and external border controls of the member states of the Schengen area.|
|↑11||See the press release in English : https://curia.europa.eu/jcms/upload/docs/application/pdf/2019–03/cp190035en.pdf.|
|↑12||Montgenèvre is a col and a town at 1800 meters of altitude in the Hautes Alpes département immediately near the Italian border. This pass is one of the main crossing points for migrants. Menton is located at the southern end of the border, in the Alpes-Maritimes département, on the Mediterranean coast. The surroundings of this town are also a key crossing point.|
Cite this article
Bastien Charaudeau Santomauro, « At the French-Italian Border Legal Arrangements Evade the Right to Asylum », in : Emeline Zougbédé, Michel Agier & Ségolène Barbou des Places (dir.), Dossier « Et si la France se retirait des conventions internationales ? », De facto [En ligne], 32 | Mars 2022, mis en ligne le 4 avril 2022. URL : https://www.icmigrations.cnrs.fr/en/2022/03/28/defacto-032–01/
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