Bruno Retailleau advocates for reinstating the illegal stay offense in France, supported by government spokesperson Sophie Primas. This offense, previously part of French law until its repeal in 2012 due to EU compatibility issues, faced challenges from the CJEU regarding its enforcement. While alternatives to the offense were established, calls for its revival continue, particularly from right-wing factions. However, human rights advocates argue that such measures would contravene European law and primarily serve a political agenda against irregular immigration.
Bruno Retailleau’s Advocacy for the Restoration of Illegal Stay Offense
Bruno Retailleau has been a strong proponent of reinstating the offense of illegal stay. On February 5, government spokesperson Sophie Primas announced that the government is ready to support any legislative initiative in Parliament aimed at restoring this offense, a measure that the Minister of the Interior has championed since taking office in September. Sophie Primas stated during an appearance on BFMTV that, “the government will likely adopt a favorable position,” although specific details will need to be debated in Parliament.
This offense was a part of French law until its repeal in 2012 under François Hollande’s presidency, as part of efforts to align with European legislation. Here, we delve into the implications of this legal adjustment.
Understanding the EU Court’s Warning
The offense of illegal stay was codified in Article L. 621-1 of the Code of Entry and Stay of Foreigners and of Asylum Law (CESEDA), making it punishable by fines or imprisonment for those without legal authorization to be in France. However, this provision was challenged in 2011 when the Court of Justice of the European Union (CJEU) found it incompatible with European law.
In the landmark case ‘Achughbabian v. France,’ the CJEU determined that imposing prison sentences for illegal stay interfered with the effective implementation of the EU ‘Return Directive’ established on December 16, 2008. This directive emphasizes the importance of facilitating voluntary departures for individuals in irregular situations, requiring member states to provide individuals notified of expulsion a window of 7 to 30 days to leave voluntarily.
Nathalie Tehio, president of the League of Human Rights, highlighted that police custody was often misused to extract residence permits rather than to enforce penalties. “We used criminal law for an administrative purpose,” she remarked, summarizing the situation.
Alternatives to the Illegal Stay Offense
To ensure compliance with European law, the Valls law of December 31, 2012, eliminated the offense of illegal stay. Instead, it introduced provisions that allow authorities to detain individuals whose identities are unclear if they cannot present valid documentation. Such individuals can be held for up to 24 hours while their situation is assessed, after which they may be released, placed in a detention center, or held in police custody if necessary.
Despite the implementation of these alternative measures, calls for reinstating the illegal stay offense persist, particularly from right-wing and far-right politicians. On January 26, 2024, LR parliamentarians attempted to reinstate it through an amendment, but the Constitutional Council deemed this effort inappropriate, labeling it as ‘legislative riders.’
Furthermore, on February 13, 2024, a bill was proposed by Republican deputies to introduce a new version of the offense, replacing imprisonment with a fine and a prohibition on re-entering the territory. However, Nathalie Tehio and the League of Human Rights oppose this move, arguing it would still conflict with European law.
Tehio emphasizes that existing administrative procedures are sufficient and questions the necessity of reinstating this offense, suggesting it serves merely as a political statement to demonstrate a commitment to combating irregular immigration. She argues that this measure primarily aims to criminalize foreign individuals, regardless of their legal status.