What is house arrest after an OQTF?
THEhouse arrest constitutes an administrative measure frequently pronounced following a Obligation to Leave French Territory (OQTF) when the immediate removal of the foreign person is not materially or legally possible. This measure falls within the framework of foreign law and expulsion litigation, areas falling within the competence of the administrative judge.
Concretely, house arrest requires the person concerned to stay in a place determined by the prefectural administration, generally their personal home or a designated accommodation center. This obligation is accompanied by a regular check in with the police or gendarmerie services to verify compliance with the measure. House arrest therefore constitutes a alternative to administrative detention, a more restrictive measure consisting in placing a foreigner in a detention center while awaiting his forced departure.
House arrest differs from detention in that it is less coercive, allowing the person to maintain a relatively normal life while remaining under administrative control. Moreover, this measure meets the requirements of proportionality and respect for fundamental rights, in particular the right to freedom and privacy guaranteed by the European Convention on Human Rights.
The legal foundations of house arrest
The legal framework for the assignment measure
House arrest has its basis in the Code on the entry and residence of foreigners and the right to asylum (CESEDA), which provides a framework for all procedures relating to removal measures. Articles L. 731-1 and following of CESEDA precisely define the conditions, duration and modalities of this administrative measure.
House arrest may be pronounced when a foreign person is subject to a remoteness measure : OQTF without voluntary departure deadline, OQTF with voluntary departure deadline expired, ban on return to French territory, expulsion, administrative or judicial ban from the territory. Indeed, these various measures share the same purpose: to force an illegal alien to leave the national territory.
The prefectural administration, represented by the prefect of the department where the foreigner resides, has the power to pronounce this measure. In some specific cases, especially in matters of expulsion for reasons of serious public order, it is the Ministry of the Interior who makes the assignment decision. In addition, the decision must be written, motivated and notified to the person concerned, in accordance with the forms prescribed by administrative law.
The conditions for issuing house arrest
For a house arrest to be legally pronounced, several cumulative conditions must be combined. First, the person must be subject to a current and enforceable removal order. An OQTF notified but with an unexpired voluntary departure period does not, in principle, make it possible to order house arrest.
Second, the administration should note that the removal cannot take place immediately. This impossibility may result from various reasons: absence of a travel document, refusal by the country of origin to issue a consular pass, material impossibility to organize transport (absence of available flight, border closure), or even legal obstacles (pending suspensive appeal, temporary ban on removing the person for medical reasons).
Thirdly, the assignee must present sufficient guarantees of representation. Concretely, she must have a stable and identifiable home, justify her identity, and not present a clear risk of flight. These guarantees allow the administration to prefer house arrest rather than administrative detention, a more restrictive measure. Moreover, the absence of guarantees of representation justifies placement in administrative detention.
The different durations of house arrest
Assignment for the rapid execution of the OQTF
When the administration plans a short-term remoteness but since it could not be carried out immediately, house arrest was ordered for a initial duration of 45 days. This period generally makes it possible to obtain the necessary travel documents, to book a flight, or to physically organize the person's departure.
This initial assignment of 45 days can be Renewed twice, thus bringing the maximum duration to 135 days in total (approximately four and a half months). Each renewal must be the subject of a new reasoned administrative decision, notified to the person concerned. Indeed, renewal is not automatic and must be justified by the persistence of obstacles to immediate departure.
Concretely, this period of 135 days corresponds to situations where expulsion is technically feasible but requires incompressible administrative deadlines: obtaining a consular pass from the country of origin, organizing a flight under police escort, or even waiting for the decision of a court on an appeal that does not suspend the execution of the OQTF.
Assignment in case of deportation
In some situations, the removal cannot be carried out for an extended period of time due tolasting legal or material obstacles. This may be a seriously ill person whose health condition makes it impossible to travel, a situation of insecurity in the country of origin making return particularly dangerous, or a persistent refusal by the country of origin to readmit its nationals.
In these hypotheses of Expulsion report, house arrest can be ordered for a duration of up to one year, renewable twice. The total maximum duration thus reaches three years, See Five years in the event of removal for the purpose of enforcing a sentence of judicial prohibition from French territory. These exceptional periods allow the administration to maintain control over the person while respecting the temporary impossibility of removing them.
In addition, throughout the duration of the house arrest for the deferral of deportation, the person may request the regularization of their administrative situation if the circumstances so authorize. A summons does not prevent the filing of an application for a residence permit, in particular for care, private and family life, or subsidiary protection.
Obligations imposed on the assignee
The obligation to reside in a specific place
The person under house arrest must imperatively stay in the place fixed by the administration. This place is precisely designated in the assignment decision: personal home address, emergency accommodation center, specialized reception structure. The authorized geographical perimeter is generally limited to the municipality of residence, or even to a specific neighborhood.
The foreign national assigned cannot leave this place without prior authorization from the administration. Any departure from the authorized perimeter constitutes a violation of house arrest, which is punishable by criminal law. In concrete terms, if the person has to travel for urgent reasons (urgent medical care, administrative summons), they must inform the prefectural services in advance and obtain written authorization.
In addition, the assignment decision may impose Mandatory home presence time slots, up to ten hours a day when the person is considered to be a threat to public order. These time slots are generally fixed at night and allow effective control of compliance with the assignment by the police who carry out unannounced checks.
The obligation to keep a regular score
In addition to the residency requirement, the person under arrest must appear regularly to the police or gendarmerie services according to the frequency determined in the assignment decision. This score can be daily, bi-weekly or weekly depending on the assessment of the administration and the person's profile.
The score allows the authorities to verify that the person has not left the country and remains available for removal. During each presentation, the foreigner must prove his identity and sign a control register. Failure to score without a legitimate reason constitutes a violation of house arrest and may result in criminal sanctions.
Concretely, the obligation to score represents a major constraint in the daily life of the person assigned, in particular limiting his possibilities of exercising a professional activity or of temporarily moving away from his place of residence. In addition, the time limits imposed may be incompatible with certain personal or professional obligations, justifying requests for accommodation to the administration.
Delivery of travel documents
The administration generally requires that the assignee Hand over your passport and any other travel document that it has. This measure aims to prevent any uncontrolled departure from French territory and to ensure that the expulsion will take place under the conditions determined by the administration.
The passport is delivered as soon as the decision to house arrest is notified, generally to the prefectural services or the police station with territorial jurisdiction. A deposit receipt is issued to the person concerned. The travel document will be returned to him at the time of his effective removal from the territory.
In addition, if the person does not have any travel document, they must work with the administration to obtain one from the consular authorities in their country of origin. This collaboration constitutes a legal obligation whose non-compliance can be sanctioned and justify placement in administrative detention instead of house arrest.
Penalties in case of non-compliance with the summons
Criminal sanctions incurred
Failure to comply with a house arrest constitutes a Criminal offense severely sanctioned. Article L. 624-4 of CESEDA provides that in the event of violation of summons obligations, the person incurs a penalty of three years of imprisonment. This penalty may be pronounced by the criminal court after the offence has been established by the police.
Sanctioned violations include in particular: absence from home during the time slots imposed without legitimate justification, failure to present at regular check-ins, leaving the authorized geographical perimeter, or even refusing to hand over travel documents. Concretely, the police services carry out unannounced checks at the home of the person assigned and check their presence during the clocks. Any unjustified absence is the subject of a report sent to the public prosecutor's office.
Moreover, criminal conviction for violating house arrest considerably worsens the administrative situation of foreigners. It constitutes an additional reason justifying the maintenance of the OQTF and makes any subsequent regularization of the situation practically impossible. Moreover, imprisonment does not suspend house arrest: at the end of the detention, the measure takes effect again unless removal has been arranged in the meantime.
Administrative consequences of non-compliance
Beyond criminal sanctions, non-compliance with house arrest leads to immediate administrative consequences. The administration may decide to replace summons with administrative detention, a much more restrictive measure that completely deprives the person of their freedom of movement.
This detention is justified by the demonstration that the person no longer has sufficient guarantees of representation and that there is a serious risk of flight. Concretely, the foreigner who violates his summons shows that he is not willing to respect administrative decisions and that he will probably try to avoid being expelled. Administrative detention then makes it possible to ensure the effective execution of the OQTF.
Moreover, the violation of the summons may also justify the Declared or strengthened a ban on returning to French territory. This ban, which can last up to three years for the most serious violations, prevents any new legal entry into France for the established period and constitutes a major obstacle to future regularization or to a return to the family environment.
The rights of the person under house arrest
The right to information and to an effective remedy
The person subject to house arrest benefits from a fundamental right to information. The assignment decision must be written, written in a language she understands (or accompanied by a translation), and specify precisely the modalities of the measure: imposed place of residence, obligation to report with an indication of the frequency and location, time slots of compulsory presence, duration of the summons.
In addition, the decision must indicate the Remedies and deadlines available to the person to challenge the measure. The foreign national summoned may file an appeal before the Administrative court with territorial jurisdiction within a period of 7 days from the date of notification of the decision. This remedy makes it possible to challenge the legality of the summons on several grounds: absence of legal conditions, violation of the principle of proportionality, manifest error of assessment.
The Administrative Court rules in a delay of 15 days from the date of referral, thus guaranteeing rapid judicial review of the measure. The administrative judge may cancel house arrest if he considers that it violates legal provisions or disproportionately infringes fundamental human rights. In concrete terms, the appeal rarely suspends the execution of the summons, unless the judge expressly decides in the context of an interim suspension.
The right to respect for private and family life
House arrest, although constituting a restriction on freedom of movement, must respect the right to private and family life guaranteed by article 8 of the European Convention on Human Rights. Concretely, the person assigned maintains the right to receive visits to their home, to correspond freely with their family and loved ones, and to maintain links with their children.
The administration cannot impose disproportionate restrictions that would make it impossible to exercise family life. For example, assignment to a location far from the family home or time requirements that are incompatible with children's school schedules may be contested before the administrative judge on the basis of excessive interference with private and family life.
In addition, the person assigned retains the right to Apply for a residence permit if it meets the legal requirements, in particular with regard to private and family life. House arrest does not suspend the right to file an application for regularization, and the examination of this request must be carried out by the administration under the conditions of common law. If a residence permit is issued, the OQTF and the house arrest lapse.
The right to access to health care and to dignified living conditions
The person under house arrest benefits from a effective right to access to medical care. If his state of health requires medical consultations, additional examinations or hospitalization, the administration must adapt the terms of assignment to allow access to care. In concrete terms, temporary permits to leave the assigned perimeter must be issued for medical appointments.
House arrest cannot be maintained when the person's health condition is incompatible with this measure. A seriously ill foreigner requiring constant care can obtain the lifting of the summons on presentation of a detailed medical certificate drawn up by a doctor from the French Office for Immigration and Integration (OFII).
In addition, the material conditions of the assignment must respect the Dignity of the person. When the assignment is carried out in a residential center, it must offer decent living conditions: accommodation in a single or family room, access to sanitary facilities, adapted catering, possibility of receiving visits. Summons should not turn into a disguised form of arbitrary detention, and any excessive violation of fundamental rights may be contested before the administrative judge.
House arrest: an alternative to administrative detention
The differences between assignment and retention
THEhouse arrest And the administrative detention constitute two distinct measures aimed at ensuring the execution of an expulsion measure, but they differ fundamentally in the degree of deprivation of liberty. Administrative detention consists in placing the foreigner in a administrative detention center (CRA), a closed structure under constant supervision, for a maximum period of 90 days.
Conversely, house arrest allows the person to maintain a Relatively normal life : she resides at home or in an open place of accommodation, can move freely within the authorized perimeter, and maintains her family and social relationships. This measure is therefore less intrusive on individual freedom and should be preferred by the administration when the person offers sufficient guarantees of representation.
Concretely, the choice between house arrest and administrative detention is at the discretion of the prefectural administration, under the supervision of the administrative judge. The principle of proportionality requires the least restrictive measure, i.e. summons, to be preferred, unless there is a proven risk of flight or if the person does not have a stable home. Moreover, detention must be justified by specific circumstances: a history of absconding, lack of guarantees of representation, threat to public order.
The criteria for choosing between the two measures
To determine whether house arrest can be pronounced in place of administrative detention, the administration is examining several cumulative criteria. The first criterion concerns representation guarantees : does the person have a stable and identifiable home? Does it justify its identity with reliable documents? Does she have family or social ties in France that limit the risk of fleeing?
The second criterion relates to the previous behavior of the person: did they already evade a previous removal measure? Did she meet her obligations during a previous assignment? Did she provide false information to the administration? Uncooperative behavior or a history of flight justify detention rather than summons.
The third criterion concerns the possibility to quickly carry out the removal. If the administration considers that departure can be organized within a very short period of time (a few days), it generally favors detention to ensure the effective presence of the person at the time of departure. On the other hand, if lasting obstacles delay removal, house arrest seems more proportionate. In addition, the individual's personal situation (state of health, presence of minor children, particular vulnerability) must be taken into account in assessing the most appropriate measure.
Special cases of house arrest
Assignment of families with minor children
The Detention of families with minor children is strictly regulated by French and European law because of the best interests of the child. In most cases, the administration favorshouse arrest for families, a measure to preserve family unity and avoid the trauma of being placed in a detention center.
The assignment of a family is generally carried out at the family home or in an adapted accommodation structure. The assignment procedures take into account the needs of the children: the clocking times are adjusted to respect school schedules, the authorized perimeter allows access to school and extra-curricular activities, and exit permits for medical reasons are granted more widely.
In addition, the administrative judge exercises a reinforced proportionality check when the summons concerns minor children. It verifies that the measure does not unduly affect the best interests of the child and that the living conditions of the family remain dignified. Concretely, an assignment that is too restrictive or in a place that is unsuitable for taking in children can be cancelled by the administrative judge.
Assignment of vulnerable persons
Some categories of people benefit from a special protection in matters of deportation and house arrest. These include unaccompanied minors, of pregnant women, of seriously ill people, of victims of human trafficking, and asylum seekers in certain specific situations.
For these vulnerable people, house arrest must be adapted to take into account their particular needs. For example, a pregnant woman must be able to easily access pregnancy follow-up consultations and maternity, which may require an assignment in a municipality with adapted medical facilities. A seriously ill person requiring regular care should be assigned near their health center.
In addition, some people benefit from a absolute protection against remoteness under French or European law: sick foreigners whose state of health requires medical care that is unavailable in their country of origin, parents of French children usually residing in France, foreigners who have been residing in France for more than twenty years, foreigners who have been residing in France for more than twenty years. For these people, the OQTF itself is illegal, making house arrest also illegal. The administrative judge then annuls all the expulsion and summons measures.
The lawyer's role in house arrest
Assistance when notifying the measure
The intervention of a immigration lawyer as soon as the house arrest is notified makes it possible to secure the rights of the person concerned and to consider possible remedies. The lawyer reviews the legality of the summons decision with regard to legal conditions: existence of an enforceable expulsion measure, impossibility of immediate removal, presence of guarantees of representation.
It also verifies compliance with procedural guarantees : is the decision properly motivated? Was the person informed of their rights in a language they understand? Are the remedies and time limits for redress clearly indicated? Is the place of assignment adapted to the personal situation of the foreigner? Any irregularity in the procedure may be grounds for an appeal for annulment before the administrative court.
In addition, the lawyer advises the person summoned on obligations to be respected to avoid criminal sanctions: strict compliance with time limits, presence at home during the imposed time slots, immediate information to the administration in case of legitimate impediment (hospitalization, administrative summons). It also explains the consequences of a violation of the summons and the ways to regularize possible involuntary breaches.
The contestation of the summons before the administrative judge
The lawyer can form a Recourse for annulment of the decision to impose house arrest before the administrative court in the 7-day delay following the notification. This remedy makes it possible to challenge the legality of the measure on several legal grounds, in particular the absence of legal conditions, the manifest error of assessment, or the disproportionate infringement of fundamental rights.
The appeal may also invoke theirregularity of the expulsion procedure itself: if the OQTF that bases the house arrest is illegal (for example because it disregards the right to private and family life), the arrest also becomes illegal. The lawyer therefore systematically reviews the legality of the entire expulsion procedure and can file an appeal against the OQTF in parallel with the appeal against the summons.
Concretely, the lawyer writes a detailed memory setting out the legal and factual grounds justifying the cancellation of the summons. He may apply to the administrative judge for educational measures (medical expertise, social survey) to establish the personal situation of his client. In addition, in emergency cases, it can form a Referred freedom on the basis of article L. 521-2 of the Code of Administrative Justice, making it possible to obtain a decision from the judge within 48 hours when a fundamental freedom is seriously violated.
Support for the regularization of the situation
Beyond contesting the summons, the lawyer accompanies the person in the procedures of regularization of its administrative situation. Indeed, house arrest does not prohibit the filing of an application for a residence permit if the legal conditions are met. The lawyer identifies the possible legal bases for regularization: private and family life, medical care, international protection, professional activity.
It constitutes a complete residence permit application file including all the necessary supporting documents: proof of residence in France, civil status documents, accommodation certificates, medical certificates, proof of professional and social integration. The lawyer ensures that the case meets the jurisprudential criteria established by the administrative courts and thus increases the chances of obtaining a favorable decision.
In addition, if the administration refuses to issue a residence permit, the lawyer forms a Litigation to challenge this refusal before the administrative court. If successful, obtaining a residence permit automatically leads to Expidation of the OQTF and house arrest, allowing the person to return to a regular administrative situation and to stay legally in France.
Conclusion: a supervised but binding measure
THEhouse arrest for the purpose of enforcing an expulsion measure constitutes an administrative measure governed by law, an alternative to administrative detention when the expulsion cannot be carried out immediately. Although less restrictive of liberty than detention, this measure imposes significant constraints to the person concerned and requires strict compliance with obligations under penalty of severe criminal sanctions.
Persons under house arrest nevertheless benefit from fundamental rights guaranteed by French and European law: right to information, right to effective remedy, right to respect for private and family life, right to access to care. The control of the administrative judge ensures the respect of these rights and the proportionality of the measure.
In this context, the assistance of a lawyer in foreign law appears essential to secure the rights of the person assigned, challenge the legality of the measure if necessary, and consider ways to regularize the administrative situation. The lawyer accompanies his client throughout the procedure, from the notification of the summons to the lifting of the measure or the effective removal from the territory.
Legal sources and references
- Code on the entry and residence of foreigners and the right to asylum (CESEDA), in particular articles L. 731-1 and following relating to house arrest
- Code on the entry and residence of foreigners and the right of asylum (CESEDA), article L. 624-4 relating to criminal sanctions
- European Convention on Human Rights, article 8 relating to the right to respect for private and family life
- Code of Administrative Justice, article L. 521-2 relating to the summary of liberty
- Jurisprudence of the Council of State and administrative courts of appeal in the field of immigration law
- Documentation from specialized sites: service-public.fr, legifrance.gouv.fr, lemag-jurique.com, exilae.fr
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