National Report on the situation of human rights of migrants at the borders - France
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National Report on the
situation of human rights
of migrants at the borders
France
French National Consultative
Commission on Human Rights
1
2
Table of contents
ENNHRI’s Project on Migrants’ Rights at Borders������������������������������������ 6
NHRIs work to promote and protect migrants’ rights at borders�����������7
French NHRI: National Consultative Commission on Human Rights
(CNCDH)���������������������������������������������������������������������������������������������������������� 8
Cooperation with other Human Rights Defenders�������������������������������� 8
Impact of COVID-19 on the work of the NHRI���������������������������������������� 9
Content of this report ���������������������������������������������������������������������������������� 9
Overview of state of human rights at borders in France�������������������������10
1. Returns and violence at the borders��������������������������������������������������� 11
2. Access to procedures at the Borders �������������������������������������������������13
3. Reception conditions and deprivation of liberty at the borders ���15
4. Human Rights Accountability at the Borders �����������������������������������17
Notes ���������������������������������������������������������������������������������������������������������19
3
Executive Summary The National Consultative Commission on Human Rights (CNCDH) is the French National Institution for the protection and the promotion of human rights (French NHRI). The CNCDH has a particular focus on migration, regarding both the situation of migrants at borders and inland. The report covers the work of the Commission in the field of migration over the three latest years (2018-2020), including on-site visits at the Franco-Italian and Franco-British borders. Impact of COVID-19 pandemic The CNCDH denounced the increased vulnerability of migrants and asylum seekers during the pandemic. Registration of asylum applications was suspended from March 2020 until early May 2020. Over this period, individual interviews of applicants took place by video conference. The National Asylum Court (CNDA), responsible for ruling on appeals, was closed from 16 March 2020 until early May 2020. Although formal returns of migrants have ceased during the first wave of the pandemic due to borders restrictions, the CNCDH noted during a visit in 2018 the quasi- systematic pushbacks at the French-Italian border and denounced that such unlawful practices violate the right to asylum and other guarantees provided by law. Migrants placed in administrative detention centers (CRA) pending their removal have been exposed to an increased risk of infection due to overcrowding, thus making it 4
difficult to comply with health protocols. The CNCDH called for the closure of the CRAs
due to the precarious health situation and the lack reasonable prospect of removal due
to travel limitations.
Access to Asylum Procedures at Borders
During its missions conducted on the Franco-Italian and French-British borders, the
CNCDH noted that it was particularly difficult, if not impossible, to access to asylum
applications. Access to asylum procedures at the borders remains a challenge partly
due to insufficient training in asylum law of the Border Police officers responsible for
registering and examining asylum applications. Migrants are systematically refused
entry to the French territory and sent back to Italy, without an individual assessment of
their situation and their wish to apply for asylum, in breach of the law.
Reception conditions and deprivation of liberty at the borders
During its mission at the French-Italian border (2018), the CNCDH observed the
appalling conditions of reception of migrants in the facilities of Menton Pont Saint
Louis: modular blocks with armored walls, insufficient equipment, lack of electricity,
overcrowding – in clear contravention with human rights obligations.
The CNCDH was also alerted by the situation of unaccompanied minors placed in
administrative detention facilities before being escorted to the borders without the
support of an ad hoc administrator as provided by law.
During its on-site visit at makeshift camps in Calais and Grande-Synthe (December
2020), the CNCDH found that migrants’ access to essential services was insufficient
or inadequate, with no effective access to water and food, hygiene, health, means of
communication and dignified accommodation. In addition, the CNCDH monitored
systematic expulsions of migrants from informal settlements sometimes carried out with
a disproportionate use of force by state agents.
The CNCDH has also spoken against the Touquet and the Sangatte Agreements
concluded by the French and British governments, which lead to migrants remaining
stranded on the French side of the border.
Human rights accountability at the borders
In Calais, national authorities used administrative and regulatory frameworks to limit
NGOs from providing humanitarian and legal assistance to migrants. NGOs and
journalists are systematically banned from observing evacuation operations carried in
makeshift camps. Several NGOs reported practices of intimidation by law enforcement
officials, such as the increase of identity controls and arrests, but also vehicle and body
searches and the use of unjustified fines against them. In 2021, members of NGOs were
fined for failure to comply with lockdown measures despite the fact that they were
assisting persons in a vulnerable situation.
The CNCDH advised national and local authorities to put an end to all forms of
intimidation, hindrance, and harassment of human rights defenders and ensure an
enabling environment for those who are engaged in defending the human rights of
migrants, particularly in the name of the constitutional principle of fraternity.
5
Chapter 1
ENNHRI’s Project on human rights of migrants at the
borders through different capacity-
Migrants’ Rights at building, advocacy, communication and
Borders reporting activities involving NHRIs in
Europe.
The European Network of National
Human Rights Institutions (ENNHRI) Under this project, ENNHRI also has
brings together over 40 National published several resources, such as the:
Human Rights Institutions (NHRIs) • Background Paper on “Protecting
across wider Europe. One of ENNHRI’s human rights of migrants at borders:
thematic priorities is our work on evidence and work of European
“asylum and migration”, which is NHRIs”, available here.
facilitated through our Asylum and
Migration Working Group, which brings • Guidance on “Monitoring Human
together over 30 European NHRIs. Rights at Borders: building on the
mandate and functions of NHRIs”,
In order to support NHRIs’ work to available here.
promote and protect the rights of
migrants at borders, ENNHRI has • Statement on “Stronger human
initiated a project in 2019, supported rights monitoring at Europe’s
in part by a grant from the Foundation borders – why NHRIs are part of the
Open Society Institute in cooperation solution”, available here.
with the OSIFE of the Open Society
• Complementary Guidance on
Foundations. The main objective
“Monitoring human rights of
of the project is to achieve a better
migrants at borders during the
promotion and protection of the
6
Covid-19 pandemic”, available here. of evidence indicating the existence
of widespread violations of migrants’
• Article on “Protecting the rights of human rights at the borders in Europe,
migrants during the pandemic: How in line with the concerns raised by civil
have NHRIs responded?”, available society organisations, international and
here. regional human rights bodies.
• Recommendations on “Independent Among their many functions, NHRIs
Human Rights Monitoring conduct monitoring on the respect of
Mechanisms at Borders under the migrants’ rights on the ground, make
EU Pact on Migration and Asylum”, recommendations to governments for
available here. reform of laws, policies and practices,
In addition, under this project, five and raise awareness of the rights of
NHRIs - from Croatia, France, Greece, migrants, refugees and people seeking
Serbia, and Slovenia – have developed asylum by cooperating with regional
national monitoring reports with the and international human rights bodies
result of their human rights monitoring and with civil society organisations.
at borders. A comparative regional Some NHRIs also regularly monitor
report will be published in July 2021, and report on immigration detention
building on these findings and reflecting facilities and reception centres, may
regional developments. receive and handle individual complaints
from migrants, and may be able to
NHRIs work to promote challenge the legality of a provision
before Constitutional and/or lower
and protect migrants’ courts.
rights at borders During the Covid-19 pandemic, NHRIs
NHRIs are State-mandate bodies, have continued to monitor human
independent of government, with a rights violations at Europe’s borders
broad mandate to promote and protect documenting, among others, police
all human rights, including of migrants. violence and systematic pushbacks
They are periodically assessed against amid border closures and restrictive
their compliance with the UN Paris measures.
Principles.
With this series of national reports
European NHRIs use their unique written by NHRIs across the region,
mandate and full range functions to ENNHRI hopes to bring further visibility
address the human rights of migrants, to their findings and recommendations.
at the borders and beyond. In doing Mirroring the main areas identified in
so, they also contribute to safeguarding ENNHRI’s Guidance on Monitoring
democratic space and upholding the Human Rights at Borders, NHRIs report
rule of law at borders. on:
Human rights monitoring is a crucial • Returns and violence at the borders.
task of NHRIs, through which they
• Access to relevant procedures at the
gather, verify and use information to
borders.
address the human rights situation of
migrants at the borders. As highlighted • Reception conditions and
in ENNHRI’s Background Paper, NHRIs deprivation of liberty at the borders.
have contributed to a growing body
7• Human rights accountability at the opinions about the situation of migrants
borders. in Calais and Grande-Synthe (2015,
2016, 2021)2, and an opinion about the
National reports presented under situation of migrants at the French-
ENNHRI’s project are authored by each Italian border (2018).3
specific NHRI, which are ultimately
responsible for their content. The Commission often questions
public authorities about violations of
French NHRI: National the fundamental rights of migrants on
French territory.4
Consultative Commission
on Human Rights The CNCDH provides the
government and the Parliament with
(CNCDH) recommendations and proposals
regarding foreigners and asylum law.5
The National Consultative Commission
on Human Rights (CNCDH) is the French Finally, the Commission is concerned by
National Institution for the protection the situation of particular vulnerability of
and the promotion of human rights certain categories of migrants, such as
(French NHRI). It was established in 1947 unaccompanied minors. In this regard,
under the initiative of René Cassin.1 it has called for the prohibition of the
administrative detention of children,
Holding the status of Independent and for the respect of their fundamental
Administrative Authority (IAA), the rights.6
Commission provides the Government
and the Parliament with independent Cooperation with other Human
recommendations and proposals in Rights Defenders
the field of human rights, humanitarian
law and humanitarian action. The The CNCDH’s decision-making body
Commission monitors the respect of is made up of 64 members, since the
the fundamental guarantees granted to law of March 5, 2007. 7 Some of these
citizens for the exercise of civil liberties. members are representative of the main
Through its actions, the Commission NGOs and associations working in the
raises public awareness about human field of human rights, humanitarian
rights. law and humanitarian actions (e.g.:
the French Red-Cross [Croix-Rouge
According to the Paris Principles, the française], the League of Human
Commission is guided by three key Rights [Ligue des droits de l’Homme],
principles: independence, pluralism, and Amnesty International France, the
vigilance. Its independence is enshrined International Federation for Human
in Act No. 2007-292 of March 5, 2007. Rights [Fédération internationale pour
The CNCDH is accredited with A status les droits de l’Homme], etc).8
by the Global Alliance of National
Human Rights Institutions (GANHRI), These members are informed of the
demonstrating its full compliance with activities of the CNCDH and participate
the Paris Principles. on a voluntary basis. They provide
the CNCDH with their expertise and
The Commission has a particular focus field experience. The opinions of the
on migration, regarding both the CNCDH are adopted by its members, in
situation of migrants at borders and accordance with the conditions of the
inland. The CNCDH has issued three
8rules of procedure.9 denounced the increased vulnerability of
migrants and asylum seekers during the
During its missions at the Franco- pandemic. It alerted about the violations
Italian and Franco-British borders, the of their rights due to the government’s
CNCDH collected reports from other response to the pandemic.13
human rights defenders, such as NGOs
working on migrants’ rights at borders10
and conducted interviews with staff
Content of this report
members. For instance, during its last The report covers the work of the
mission in Calais and Grande-Synthe, Commission in the field of migration
the CNCDH met NGOs, associations, over the three latest years. It includes
and citizens.11 These exchanges were the findings from the visits conducted
organized as meetings, roundtable by CNCDH at the Franco-Italian border
discussions or volunteering campaigns. in 201814, respectively in the Hautes-
During the preparation of its opinions, Alpes Department, mainly at the Col
the CNCDH hears NGOs. de Montgenèvre mountain pass, in
Briançon and in Gap, on 19 and 20
The outcomes of these discussions
March 2018, and the other in the Alpes-
have fed into the recommendations
Maritimes Department, mainly in Nice,
addressed by CNCDH to public
Menton and Ventimiglia (Italy), on 12
authorities and in awareness-raising
and 13 April 2018.
initiatives on the rights of migrants.
The report also draws from the missions
Finally, the CNCDH regularly consults
of the CNCDH at the Franco-British
the reports of the French Ombudsman,
border (2015, 2016, 2020)15 in Calais and
the Defender of Rights (DDD) (who is
Grande-Synthe, where migrants survive
also a member of the CNCDH), and the
in makeshift camps. The latest visit
French National Preventive Mechanism
of the CNCDH in Calais and Grande-
(NPM), the General Controller of Places
Synthe took place during the pandemic
of Deprivation of Liberty (CGLPL).
on 15 and 16 December 2020, when a
The CNCDH, the DDD and the CGLPL
delegation from the CNCDH carried out
engage in joint actions. For instance,
a series of hearings and a trip to Calais
when working on its opinion on the
and Grande-Synthe. These missions are
situation of migrants at the Franco-
part of the ongoing work of CNCDH
Italian border, the CNCDH relied on the
on migration, which resulted in the
observations and recommendations of
publication of an opinion denouncing
the CGLPL.12
the unacceptable situation of the
Impact of COVID-19 on the work migrants at the Franco-British border
and proposing 34 recommendations to
of the NHRI
public authorities to ensure the respect
The CNCDH did not experience any of their fundamental rights.16
limitations, threats or budgetary cuts
Finally, the report also covers the
linked to the government’s response to
specific focus of the CNCDH on
the pandemic.
unaccompanied minors and migrants
The Commission was able to conduct an placed in detention facilities.17
on-site visit at the Franco-British border
in December 2020.
On the other hand, the Commission
9Chapter 2
Overview of state of extremely difficult, if not impossible21.
NGOs report that insufficient
human rights at borders information is given about the right to
in France asylum and accommodation for asylum
seekers.
Migrants present at borders face quasi-
systematic human rights challenges Limited access to asylum application
reported by the CNCDH and NGOs. can be explained by practical difficulties
The CNCDH noted that the guarantees – shortage of staff, lack of training of
provided for by the law in case of refusal Border Police officials – but also by the
of entry are not respected.18 As a result, dysfunctions of the European asylum
migrants face unlawful practices at policy.22 A large number of the migrants
the borders. Media and NGOs report arriving at French borders and wishing
pushbacks and collective expulsions.19 to seek asylum in France are barred
from doing so in application of the
The CNCDH recommends the full rules of the Dublin III Regulation.23
compliance with the legal provisions. The CNCDH calls for the activation of
In particular, the Commission calls the humanitarian clause of Dublin III
for a personal interview to be held, Regulation to allow France to examine
rights to be notified in a language that the asylum applications of migrants
migrants can understand, and in-depth present at the Franco-British border. The
examination of their situation.20 activation of the humanitarian clause
would be a short-term solution with a
Access to asylum applications, whether
view to an agreement concerning the
at the border or on the territory, can be
asylum policy at the border.24
10At the Franco-British border, the countries.28
situation of migrants is complex due
to the Franco-British agreements The Covid-19 pandemic has a strong
on migration policy.25 While most impact on migration flows in France. A
migrants are unable or unwilling to provisional report from the Ministry of
apply for asylum in France, these the Interior shows a drop in the issuance
agreements make it impossible for them of residence permits (-20.5%) and the
to leave France to go to the United granting of protection status for asylum
Kingdom. The CNCDH recommends applications (-33.5%) in 2020 compared
the denunciation of the Touquet and to 2019. The top three source countries
the Sangatte Agreements, which for asylum applications in 2020 were
leads to migrants remaining stranded Afghanistan, Bangladesh, and Pakistan.
29
on the French side of the border.26
Finally, the French public authorities 1. Returns and violence at the
are pursuing a policy to fight and
prevent “fixation points”, i.e., informal
borders
settlements where migrants tend 1.1 Returns / pushbacks at the border
to group for survival for a longer or
shorter period. This policy leads to The CNCDH does not have the mandate
forced evictions of migrants from their to receive individual complaints about
camps, leaving them with no solution. expulsions at the borders. However,
According to the French Observatory NGOs and the media have reported
of eviction from informal living places, on unlawful practices of returns at the
88% of the evictions in France take border, such as pushbacks.
place at the Franco-British border.27 For instance, on 14 May 2020, the
Among other recommendations, border police stopped a Central African
the CNCDH recommends not to woman and her five-year-old son at the
carry out evacuation operations Menton train station. Although she had
without proposing an appropriate expressed a desire to apply for asylum
accommodation, with sufficient in France immediately after her arrest,
information to people concerned. the border police escorted the woman
In 2019, the National Institute of and her child back to Italy without
Statistics and Economic Studies (Insee) registering the asylum application
reported that fewer migrants are leaving and without respecting the applicable
France than entering. On average, four provisions regarding the right to dispose
migrants enter the country when one of a full day before being sent back,
leaves. In 2019, 6.7 million migrants lived which is essential in order to allow
in France, representing 9.9% of the total the person concerned to exercise its
population. 2.5 million migrants (37% of procedural rights in practice.30
them) have acquired French nationality. The woman filed an urgent appeal,
Most migrants living in France come asking the administrative judge to take
from Africa and Europe: in 2019, 46,5% a necessary measure to safeguard a
of migrants living in France were born in fundamental freedom that has been
Africa and 33,3% were born in Europe. infringed seriously and illegally by
The most common countries of birth for the administration. The administrative
migrants are Algeria, Morocco, Portugal, court rejected the request on May 19,
Tunisia, Italy, and Spain. In 2019, half of 2020.31 The plaintiff appealed to the
the migrants came from one of these six
11Conseil d’Etat, the supreme court of against “fixation points”, which has been
administrative law in France. The Conseil implemented by public authorities
d’Etat sanctioned the pushback of this at the Franco-British border. This
woman and her child by the border policy, which has been reinforced over
police. 32 the last three years, has led to the
systematic expulsions of migrants from
The CNCDH noted during a visit the their informal settlements. In Calais,
quasi-systematic pushbacks at the an association called Human Rights
French-Italian border and denounced Observers has counted 961 expulsions
unlawful practices that violate the right from informal settlements in Calais and
to asylum and the guarantees provided the region in 2019.36
by law.33. Some migrants are controlled
at the train station, as in the case It has been reported to the CNCDH
described above. Checks on trains are that these expulsions were sometimes
also systematic and, according to the carried out with a disproportionate use
border police (PAF), 70% of its border of force by state agents. According to
stops carried out in the Alpes-Maritimes associations and several observers, state
region were made on the railway agents would intervene at night and
sector. The CNCDH has been alerted by would make abusive use of tear gas and
associations to the fact that the border physical force.37 Numerous testimonies
police carries out checks on the basis also accuse state agents of destroying
of racial or ethnic profiling. If those the personal belongings of migrants
stopped do not have the administrative during expulsions.
documents to enter France, they are
arrested with the purpose of being sent This disproportionate use of force
back to Italy. was also noted by public authorities.
Investigations conducted by the
Finally, some migrants are pushed back General Inspectorate of Administration
at Authorized Crossing Points (PPA). (IGPA), the General Inspectorate of
The legal guarantees surrounding the National Police (IGPN) and the
the non-admission procedure are not General Inspectorate of the National
always respected, and refusal of entry Gendarmerie (IGGN) concluded that
is sometimes expeditious. As explained “the investigations conducted on the spot
below, migrants do not always have confirm plausible breaches of doctrine
access to effective, fair, and transparent and ethics of the internal security
asylum procedures.34 forces in Calais and to a lesser extent in
Dunkirk”. 38
Removals have ceased during the
pandemic due to borders restrictions. In addition, the CNCDH was informed
However, pushbacks took place despite that new dissuasive measures, such
the recommendation of the European as excessive security perimeters, were
Commission to exclude asylum seekers put in place to prevent the presence
from travel restrictions due to the health of observers, whether associations
context.35 or journalists, during evacuation
operations. Recently, two journalists who
1.2 Violence by State authorities at were unable to witness the evacuations
borders because of these excessive security
The CNCDH has been denouncing perimeters filed an urgent appeal,
for several years the policy of fighting asking the administrative judge to take
a necessary measure to safeguard a
12fundamental freedom that has been Information given to the migrants
infringed seriously and illegally by the regarding the right to asylum remains
administration. The administrative court insufficient.43 However, according to
rejected the request on 15 January Article 8 of Directive 2013/32/EU, known
2021.39 The plaintiffs appealed to as the “Asylum Procedures Directive”,
the Conseil d’Etat which rejected the Member States shall provide third-
appeal.40 country nationals or stateless persons at
border crossing points with information
The CNCDH recommends against on the possibility to make an application
any excessive use of force by security for an international protection.44
forces during evacuation operations
from camps. It recalls the 2016 These shortcomings are partly due to
recommendation of the United Nations insufficient training in asylum law of
Committee against Torture about the the Border Police officers responsible
allegations of violence against asylum for registering and examining asylum
seekers and migrants in Calais. 41 Full applications at the borders.45 Some of
investigations must be conducted them are unaware of the multiplicity
in order to fight against any form of of criteria that make it possible
impunity of the forces of law and order. to determine the Member State
Moreover, public authorities should not responsible for an asylum application
prevent observers from witnessing the under the Dublin Regulation.46 As
evacuations of the camps. 42 a result, they consider that people
crossing the border cannot submit an
2. Access to procedures at the asylum application in France if they
Borders crossed before another Member State
of the European Union.47 However,
2.1 Access to asylum procedures
Directive 2013/32/EU48 gives a reminder
During its missions conducted on in its Recital 38 that “Many applications
the Franco-Italian and French-British for international protection are made
borders, the CNCDH noted that it was at the border or in a transit zone of a
particularly difficult, if not impossible, Member State prior to a decision on
to access to asylum applications. the entry of the applicant. Member
13States should be able to provide 2.2 Effective, fair and transparent
for admissibility and/or substantive asylum procedures
examination procedures which would
make it possible for such applications In application of Article 25 of the
to be decided upon at those locations in Schengen Borders Code (SBC), it is
well-defined circumstances”. Recital 26 possible to reintroduce controls at the
and Article 6 of said Directive expressly internal borders of the Schengen area
provide that officials coming into contact in the event of a serious threat to public
with persons seeking international order or internal security of a member
protection must be specifically trained. state.50 On this basis, France has re-
established and renewed internal border
Moreover, the Dublin Regulation controls, first during of the COP21 and
obliges States to examine all asylum then because of the terrorist attacks.
applications, including those filed at
the border, even if they consider that As a result, Authorized Crossing Points
they fall under the “Dublin procedure”. (PPA) were established at the borders
Individuals must be able to appeal to examine asylum applications. Under
against a transfer decision. The CNCDH the current legislation, an asylum
has recommended that the persons seeker cannot be refused entry to the
concerned are taken to a waiting zone French territory without an individual
so that their request for protection can interview to assess the substance of the
be duly examined. application. An asylum seeker may be
refused entry if another Member State
The CNCDH recommends specific is responsible for examining his or her
training for Border Police agents application under the Dublin Regulation,
on asylum-related issues and the if his or her application is inadmissible
establishment of objective procedures or unfounded.51
for monitoring the compliance of their
behavior with regulations in this area.49 Any refusal of entry is formalized by
a written and justified decision stating
The pandemic has made it even more the rights of the person whose entry
difficult to apply for asylum on the is refused: the authorities also notify
French territory. Registration of asylum a contact person of the choice of the
applications was suspended from March individual, the consulate or council
2020 until early May 2020. Moreover, if desired, and their right not to be
as part of an asylum application, the repatriated before the expiration of the
applicant is interviewed by the French prescribed period of 1 full day.52 The
Office for the Protection of Refugees decision is notified to the foreigner in
and Stateless Persons (OFPRA), which a language that they understand. A
is responsible for deciding on the foreigner who is refused entry to the
application. However, during the French territory on the grounds of
pandemic, these interviews took place asylum may apply to the President of
by videoconference, undermining the Administrative Court within forty-
the rights of the defense. Finally, eight hours following notification of this
the National Asylum Court, which is decision.53 This appeal has suspensive
responsible for ruling on appeal if effect.
OFPRA’s decision is challenged, was
closed from 16 March 2020 until early However, the CNCDH found evidence
May 2020. of administrative and practical barriers
of access to the asylum procedures
14at the borders: at the Franco-Italian overcrowding... The CNCDH observed
border, the CNCDH observed that, that these facilities were comparable to
overall, no individual interviews and a place of deprivation of liberty, even
thus no assessments of the substance though they do not have the legal
of applications were carried out. Often, status of one. The CNCDH called for
the entry refusal form is filled out by an immediate closure of these places
the border control agents after an and recommended a legal definition of
identity check. The procedure is not waiting places at the border.58
always conducted in a language that the
foreign national understands. The right The CNCDH was also alerted by the
to dispose of a full day before being situation of unaccompanied minors
sent back is also not respected. 54 placed in administrative detention
facilities before being escorted to the
In the context of the refusal of entry borders without the support of an ad
procedure, foreign nationals stopped for hoc administrator as provided by law.59
questioning have to wait in improvised The CNCDH denounces the conditions
places of detention before being sent in which these minors are detained and
back. The CNCDH noted that these calls for the prohibition of administrative
places of detention did not respect the detention of unaccompanied minors.60
fundamental rights of migrants.55 France has been condemned seven
times in this regard by the European
3. Reception conditions and Court of Human Rights.61
deprivation of liberty at the
In addition, the situation of foreigners
borders
placed in administrative detention
3.1 Deprivation of liberty and de facto centers (CRA) has gotten worse in
detention at the borders the context of the health crisis. The
CNCDH called for the closure of the
Persons who are refused entry to CRAs because these detention centers
France may be kept in a “waiting zone” exposed detained foreigners to a high
during the necessary time to verify their risk of contamination with Covid-19. For
administrative situation and organize example, outbreaks of infections were
their departure.56 The foreigner kept in identified at the CRA of Coquelles in
the waiting zone is informed of these Pas-de-Calais in November 2020, and
rights as soon as possible: among at the CRA of Lyon in October 2020.
others, they can ask for the assistance Moreover, as there was no reasonable
of an interpreter and a doctor, prospect for removal, the CNCDH has
communicate with a counselor or any recommended that detention for the
person of his choice, and leave the purpose of removal had to cease.62
waiting zone for any destination outside
France. They must also be informed A health protocol has been
of their rights regarding any asylum implemented in CRAs in March 2020.
application.57 The CRA of Plaisir (Yvelines) was
reserved for migrants who were tested
During its mission at the French-Italian positive for Covid-19 and did not need
border, the CNCDH was shocked by the to be hospitalized. However, it was
conditions of reception of migrants in very difficult to comply with the health
the facilities of Menton Pont Saint Louis: protocol due to the high number of
modular blocks with armored walls, migrants detained in these facilities.
insufficient equipment, lack of electricity, The CGLPL also observed in some CRAs
15that migrants did not have access to access of the migrants to essential
information about the pandemic.63 The services was insufficient or inadequate,
French Defender of Rights (Défenseur particularly with regard to effective
des Droits) also shared the positions access to water and food, hygiene,
of the CNCDH and the CGLPL. It called health, means of communication and
for the closure of the CRAs or for dignified accommodation.65 In Calais
the implementation of a strict health and Grande-Synthe, migrants survived
protocol: with the distribution of masks, in informal settlements. The State
hydro-alcoholic gels, and adequate has set up “Reception and Situation
protective clothing to all and in sufficient Examination Centers” (CAES). However,
quantity; testing of all persons who the number of places available in these
may have been exposed to the virus; accommodations is not communicated
systematic isolation of all symptomatic to the migrants and associations.
persons in dignified conditions that In addition, many migrants give up
guarantee full access to care; release accessing to the CAES due to their
and, if necessary, medical care of excessive distance from border crossing
persons who have been tested positive points and the lack of support for their
for Covid-19.64 integration in France.
3.2 Living conditions in reception In this respect, the CNCDH has issued
centres and makeshift camps at several recommendations. First of
borders all, the CNCDH recommends that
evacuation operations should not
The CNCDH was alerted by the be carried out without proposing
humanitarian situation of migrants alternative and appropriate
in Calais and Grande-Synthe and the accommodation, with sufficient
violations of their most fundamental information being provided. It also
rights. During its last mission at the recommends the set up of a platform
Franco-British border (December for global monitoring of the number
2020), the CNCDH found that the of places available in accommodation
16facilities. The number of places Finally, it is also possible to refer a
available should be communicated to matter to the French National Preventive
all associations carrying out support Mechanism of Torture, the CGLPL, in
operations to migrants. Finally, the order to inform of the violation of the
CNCDH recommends the set up of a fundamental rights of a person deprived
genuine “humanitarian base” to meet of liberty. The CGLPL may then carry out
all the essential needs of migrants investigations and recommendations.
throughout the area.
In a joint letter to the Minister of the
Moreover, national and international Interior from July 24, 2019, the CGLPL
health protocols were not properly and the Defender of Rights raised their
implemented in migrant facilities. The concerns about the deterioration of
CNCDH recommended the vaccination the situation of foreign nationals in
of migrants, in conformity with the administrative detention centers (CRA).
recommendations of the United Nations In his 2019 annual report, the CGLPL
Special Rapporteurs.66 indicated that this referral had remained
unanswered.69
4. Human Rights Accountability
at the Borders 4.2 NHRIs’ mandate and work at the
borders as human rights defenders
4.1 A system for human rights
accountability at the borders Although the CNCDH is not specifically
mandated to monitor human rights
During its missions to the Franco- violations at the border, it is part of its
Italian and Franco-British borders, the current missions as regards rights of
CNCDH has noted the presence of migrants. The Commission is sufficiently
associations or ordinary citizens that funded to carry out monitoring visits
provide migrants with access to basic at borders, when it deems it useful.
essential services. These civil society The CNCDH did not experience any
actors can directly refer to the French limitations, threats or budgetary cuts
Ombudsman, the Defender of Rights, linked to the government’s response to
if they consider themselves victims or the pandemic.
witnesses of abusive behavior by the
forces of law and order. These referrals The CNCDH has access to
may give rise to investigations by the comprehensive data from the Ministry
Defender of Rights. However, at the end of the Interior. These data are public
of the vast majority of its investigations, data, they are therefore accessible to
the Defender of Rights does not find any the public, but the Commission can
fault, either because the facts could not access them before their publication.
be established or because they do not The Ministry of the Interior provides
constitute an abuse.67 these data on request, and the CNCDH
has never been denied access.
In addition, since the beginning of his
mandate, the Defender of Rights has It seems that the CNCDH
requested disciplinary proceedings in 36 recommendations related to the
cases. However, none of its requests has human right of migrants at the borders
been acted upon by the authorities. The have not been considered with much
Defender of Rights considers that this attention by relevant authorities, insofar
situation partly deprives the institution as the situation at the Italian border has
of its effectiveness.68 not changed, and at the British border
17it can no doubt even be considered physical force by the forces of law and
that the situation has deteriorated. order against human rights defenders.75
Nevertheless, the dialogue between the
CNCHD and the authorities has never Following the example of the United
been interrupted. Nations Special Rapporteur on
the Human Rights of Migrants, the
4.3 Enabling environment for work of CNCDH recommended that the
other human rights defenders at the public authorities put an end to all
borders (NGOs, civil society, etc.) forms of intimidation, hindrance,
and harassment of human rights
In Calais, national authorities used defenders.76 It also recommends that
administrative and regulatory the measures adopted at the local
frameworks to make it harder for and national levels, as well as their
human rights defenders to provide implementation, facilitate the work of
humanitarian and legal assistance to those who defend the fundamental
migrants at the borders. For example, rights of migrants, particularly in the
a Prefectural Decree of 10 September name of the constitutionally recognized
2020 prohibited the distribution of principle of fraternity.77 Moreover, the
free food and drinks in the city center CNCDH recommended that France
of Calais, where the associations adopts a general status for Human
operated.70 This decree was then Rights Defenders, as France committed
extended by seven Prefectural Decrees.71 in 1998 with the adoption of the
In a letter addressed to the Minister of Declaration on the Situation of Human
the Interior, the President of the CNCDH Rights Defenders, and as it reaffirmed
had already expressed his concern at the World Summit on Human Rights
about these restrictive measures which Defenders in 2018.
can create insecurity and further lack
of stability among a population that is Finally, the CNCDH warns against
already in a very vulnerable position.72 decisions or policies that considers
human rights organisations or people
In addition, since 2016, human providing humanitarian assistance as
rights defenders, whether they are the “accomplices” of human traffickers.
associations or citizens, are denouncing It recommends that the importance of
the increasing pressure from public their role, whether they are ordinary
authorities to which they are subject. citizens or associations, be recognized
According to a report published by and valued by the public authorities.
four associations in August 2018, the
police forces multiply unjustified fines
against them. 73 In 2021, members of
associations were fined for failure to
comply with the lockdown measures
imposed during the pandemic despite
the fact that they were assisting persons
in a vulnerable situation.74 Moreover,
several associations reported practices
of intimidation of law enforcement
officials, such as the increase of
identity controls and arrests, but also
vehicle and body searches. Amnesty
International also denounced the use of
18Notes
1
Order of the Minister of Foreign Affairs, Official Journal, [Arrêté du ministre des Affaires
étrangères, Journal Officiel], March 27, 1947
2
CNCDH, July 2, 2015, Opinion on the situation of migrants in Calais and in the Pale of Calais.
CNCDH, July 7, 2016 Follow-up opinion on the situation of migrants in Calais [Avis de suivi sur
la situation des migrants à Calais].
CNCDH, February 11, 2021, Opinion on the situation of migrants in Calais and Grande-Synthe
3
CNCDH, June 19, 2018, Opinion on the situation of migrants at the French-Italian border.
4
CNCDH, September 23, 2020, Letter of the President to the Minister of the Interior concerning
the assistance to migrants [Lettre du president au minister de l’Intérieur concernant l’assistance
aux migrants]
CNCDH, January 19, 2021, Letter to the mayor of Calais [Lettre à la maire de Calais].
5
CNCDH, May 2, 2018, Opinion on the draft bill “For a controlled immigration and an effective
right of asylum” [Opinion sur le projet de loi “Pour une immigration maîtrisée et un droit d’asile
effectif“].
6
CNCDH, September 24, 2020, The administrative retention of children has to be prohibited [La
retention administrative des enfants doit être interdite].
7
Law n°2007-292 of March 5, 2007 on the National Consultative Commission on Human Rights
[Loi relative à la Commission nationale consultative des droits de l’Homme]
8
For the list of the members of the CNCDH, see https://www.cncdh.fr/fr/membres
9
CNCDH, Rules of procedure, May 11, 2017 [Règlement intérieur]
10
During its mission at the Franco-Italian border, the CNCDH collected the following reports:
Amnesty International, “Controls at the edge of the law, human rights violations at the border
with
Italy, Summary of observation mission”, February 2017 [Des contrôles aux confins du droit,
violations des droits humains à la frontière avec l’Italie, Synthèse de mission d’observation]
Forum réfugiés-Cosi, “Obstacles to access to the asylum procedure in the Alpes-Maritimes
department for foreigners from Italy. Findings and recommendations“ [Les obstacles à
l’accès à la procédure d’asile dans le département des Alpes-Maritimes pour les étrangers en
provenance d’Italie. Constats et recommandations] April 2017
Report from Action Briançon dated 9 & 10 January 2018 written by Myriam Laïdouni-Denis, EELV
advisor “Surprise visit of the PAF border post Montgenèvre” [Visite surprise de la PAF poste
frontière Montgenèvre]
CGLPL, report of the visit from 4 to 8 September 2017 of the Menton border police premises
(Alpes-Maritimes) – 2nd visit, control of migrants on the Franco-Italian border, 5 June 2018
Anafé, “Re-establishment of internal border controls and state of emergency. Consequences
in the waiting area” [Rétablissement des contrôles aux frontières internes état d’urgence.
Conséquences sur les zones d’attentes], May 2017; Let’s alert on the state practices towards
19migrants at the French-Italian border” [Alertons sur les pratiques étatiques vis-à-vis des
migrants à la frontière italienne], 19 October 2017
Secours Catholique, report on human trafficking in conflict and post-conflict situation, July 2016
[Rapport sur la traite des êtres humains dans les situations de conflits et post-conflits], July
2016During its mission at the Franco-British border, the CNCDH collected the following reports:
Human rights observers, monthly newsletters of the observations of expulsions in Calais, Pas-
de-Calais, September 2020, October 2020, November 2020, December 2020
Observatory of expulsions from informal living spaces, detailed analysis note, 1 November 2019
– 31 October 2020.
Human Rights Watch, “It’s like living in hell”, Police abuse in Calais against migrants, children
and adults, 26 July 2017
L’Auberge des migrants, Utopia 56, Help Refugees and Refugee Info Bus, Calais, 7 August 2018:
Police Harassment of Volunteers, Study from November 1, 2017 to July 1 2018
Amnesty International, Soldarity under attack [La solidarité pris pour cible], June 2019
11
During its mission at the Franco-Italian border, the CNCDH met several NGOs and associations
such as La Cimade, Tous migrants, Secours Catholique, Amnesty International France, Médecins
du Monde, Refuges solidaires, Caritas, Anafé, Ligue des droits de l’Homme, etc. See the list of
the persons encountered and interviewed by the CNCDH, CNCDH, June 19, 2018, Opinion on
the situation of migrants at the French-Italian border
During its mission at the Franco-British border, the CNCDH met several NGOs and associations
such as Safe Passage, Refugee Rights Europe, Choose Love,France Terre d’Asile, La Cabane
Juridique, Secours Catholique, Amnesty Nord-Pas-de-Calais/Somme, etc. See the list of persons
encountered and interviewed by the CNCDH, CNCDH, February 11, 2021, Opinion on the
situation of migrants in Calais and Grande-Synthe.
12
CNCDH, June 19, 2018, Opinion on the situation of migrants at the Franco-Italian border
13
CNCDH, April 28, 2020, State of health emergency and rule of law [Etat d’urgence sanitaire et
Etat de droit]
CNCDH, May 26, 2020, Extension of state of health emergency and fundamental liberties
[Prorogation de l’Etat d’urgence sanitaire et libertés]
CNCDH, April 6, 2020, Observatory of state emergency and lockdown, Letter of the
Observatory n°1, “Migrant People Emergency” [CNCDH, Observatoire de l’Etat d’urgence
sanitaire et du confinement, La lettre de l’observatoire n°1, 6 avril 2020, “Urgence personnes
migrantes]
14
CNCDH, June 19, 2018, Opinion on the situation of migrants at the Franco-Italian border
15
CNCDH, July 2, 2015 Opinion on the situation of migrants in Calais and the Pale of Calais
CNCDH, July 7, 2016 Follow-up opinion on the situation of migrants in Calais [Avis de suivi sur
la situation des migrants à Calais]
CNCDH, February 11, 2021, Opinion on the situation of migrants in Calais and Grande-Synthe
[Avis sur la situation des migrants à Calais et Grande-Synthe]
16
CNCDH, February 11, 2021, Opinion on the situation of migrants in Calais and Grande-Synthe
17
CNCDH, September 24, 2020, The administrative retention of children has to be prohibited [La
20retention administrative des enfants doit être interdite].
18
CNCDH, June 19, 2018, Opinion on the situation of migrants at the Franco-Italian border
19
Anafé, Press release, A woman and her child sent back to Italy yesterday: illegal pushbacks
of asylum seekers continue in France, [Une femme et son enfant renvoyés hier en Italie: les
refoulements illégaux des personnes en demande d’asile continuent en France], May 15, 2020
La Cimade, The French state illegally returns a child to the French-Spanish border, [L’Etat
français renvoie illégalement un enfant à la frontière franco-espagnole], February 11, 2021
Amnesty International, The failure of the French authorities to respect, protect, and implement
the rights of unaccompanied foreign minors at risk [Les manquements des autorités françaises
aux devoirs élémentaires de respecter, protéger, et mettre en œuvre les droits des mineur.e.s
isolé.e.s étranger.e.s en danger], October 2020
20
CNCDH, June 19, 2018, Opinion on the situation of migrants at the Franco-Italian border:
“The CNCDH calls for the strictest compliance with the legal provisions. It draws attention to the
intentionally narrow interpretations, or even misinterpretations at times, practised thereof, to the
detriment of migrants. It particularly calls for a personal interview to be held, rights to be notified
in a language that the foreign national can understand, an in-depth examination of the latter’s
situation”.
21
CNCDH, June 19, 2018, Opinion on the situation of migrants at the Franco-Italian border
CNCDH, February 11, 2021, Opinion on the situation of migrants in Calais and Grande-Synthe
[Avis sur la situation des migrants à Calais et à Grande-Synthe]
22
CNCDH, February 11, 2021, Opinion on the situation of migrants in Calais and Grande-Synthe
[Avis sur la situation des migrants à Calais et à Grande-Synthe]
CNCDH, May 2, 2018, Opinion on the bill “For a controlled immigration and an effective right of
asylum” [Avis sur le projet de loi “Pour une immigration maîtrisée et un droit d’asile effectif“]
23
Regulation (EU) No 604/2013 of the European Parliament and of the Council of 26 June 2013
establishing the criteria and mechanisms for determining the Member State responsible for
examining an application for international protection lodged in one of the Member States by a
third-country national or a stateless person
24
CNCDH, February 11, 2021, Opinion on the situation of migrants in Calais and Grande-Synthe
[Avis sur la situation des migrants à Calais et à Grande-Synthe] : “À court terme et dans la
perspective d’un accord avec le Royaume-Uni concernant la gestion de la demande d’asile à la
frontière, la CNCDH demande l’activation de la clause humanitaire du règlement Dublin III non
comme un substitut aux obligations du Royaume-Uni mais comme une contribution de la France
à l’accueil des personnes demandant l’asile à Calais et Grande-Synthe“.
25
Protocol between the Government of the French Republic and the Government of the United
Kingdom (...) on border controls and police, judicial cooperation in criminal matters, civil
security and mutual assistance, concerning the cross-Channel fixed link, signed at Sangatte on
25 November 1991; Additional Protocol to the Sangatte Protocol between the Government of
the French Republic and the Government of the United Kingdom (...) on the establishment of
offices responsible for the control of persons using the rail link between France and the United
Kingdom, signed in Brussels on May 29, 2000; Treaty between the Government of the French
Republic and the Government of the United Kingdom (...) on the implementation of border
controls in the Channel and North Sea seaports of the two countries, signed in Le Touquet on
February 4, 2003.
2126
CNCDH, February 11, 2021, Opinion on the situation of migrants in Calais and Grande-Synthe
[Avis sur la situation des migrants à Calais et Grande-Synthe]
Observatory of eviction from informal living places, November 1, 2019 – October 31, 2020,
27
Detailed analysis note, p. 14 [Note d’analyse détaillée]
28
National Institute of Statistics and Economic Studies (Insee), July 24, 2020, Statistic and
studies, The essentials on migrants and foreigners [Insee, Statistiques et études, L’essentiel sur
les immigrés et les étrangers] (https://www.insee.fr/fr/statistiques/3633212#:~:text=En%20
2019%2C%206%2C7%20millions,9%20%25%20de%20la%20population%20
totale.&text=1%2C7%20million%20de%20personnes,%2C6%20%25%20de%20la%20
population)
29
General Directorate for Foreigners in France (DGEF), Ministry of the Interior, January 21, 2021,
Statistics on immigration, asylum and access to French nationality [Direction Générale des
étrangers en France (DGEF), Ministère de l’intérieur, statistiques de l’immigration, de l’asile et de
l’accès à la nationalité française] (https://www.immigration.interieur.gouv.fr/fr/Info-ressources/
Etudes-et-statistiques/Statistiques/Essentiel-de-l-immigration/Chiffres-cles)
30
Code of Entry and Residence of Foreigners and the Right of Asylum [Code de l’entrée et du
séjour des étrangers et du droit d’asile], article L213-2
31
Tribunal administratif de Nice, 19 mai 2020, N° 2001952
32
Conseil d’Etat, 7th chamber, July 8, 2020, n° 440756 [Conseil d’Etat, 7ème chambre, 8 juillet
2020, n° 440756]: “It follows from all of the foregoing that by refusing entry into the territory to
Mrs. B... and her child, the administrative authority has seriously and unlawfully infringed the
right to asylum, which constitutes a fundamental freedom within the meaning of the provisions
of Article L. 521-2 of the Code of Administrative Justice” (“Il résulte de l’ensemble de ce qui
précède qu’en refusant l’entrée sur le territoire à Mme B... et son enfant, l’autorité administrative
a porté une atteinte grave et manifestement illégale au droit d’asile, qui constitue une liberté
fondamentale au sens des dispositions de l’article L. 521-2 du code de justice administrative”).
33
CNCDH, June 20, 2018, Rights of migrants: the French-Italian border cannot be a no-right
zone [CNCDH, 20 juin 2018, Droits des personnes migrantes : la frontière italienne ne peut
pas être une zone de non-droit]: “Any refusal of entry into France must comply with the law.
The CNCDH has noted that the procedures for non-admission were not in conformity with the
law: no individual interview, failure to respect the right to a clear day before deportation to Italy,
difficulty or impossibility to access to asylum applications... The Commission denounces erroneous
interpretations of the provisions guaranteeing the rights of migrants; it demands that the public
authorities strictly respect the law” (“Tout refus d’entrée en France doit respecter la loi. Sur le
terrain, la CNCDH a constaté que les procédures de non-admission n’étaient pas conformes au
droit : absence d’entretien individuel, non-respect du droit au jour franc avant reconduite en Italie,
accès particulièrement difficile, voire impossible, à la demande d’asile… La Commission dénonce
des interprétations erronées des dispositions garantissant les droits des personnes migrantes ; elle
exige des pouvoirs publics le plus strict respect de la loi”).
34
CNCDH, June 19, 2018, Opinion the on situation of migrants at the Franco-Italian border
35
European Commission, April 17, 2020, COMMUNICATION FROM THE COMMISSION
COVID-19: Guidance on the implementation of relevant EU provisions in the area of asylum and
return procedures and on resettlement.
Human Rights Observers, 2019 Observation of human rights violations at the UK-French
36
border
37
Human Rights Watch, “It’s Like Living in Hell”, Police Abuses in Calais against Migrants,
22Children and Adults, July 26, 2017 [Human Rights Watch, “C’est comme vivre en enfer”, Abus
policiers à Calais contre les migrants, enfants et adultes, 26 juillet 2017].
38
IGPN, IGA et IGGN, Evaluation de l’action des forces de l’ordre à Calais et dans le Dunkerquois,
Octobre 2017 [IGPN, IGA and IGGN, Evaluation de l’action des forces de l’ordre à Calais et dans
le Dunkerquois, October 2017].
39
Tribunal administrative, 15 janvier 2021, n°2009446
40
Conseil d’Etat, February 3, 2021, n° 448721 [Conseil d’Etat, 3 février 2021, n° 448721]: “
However, it does not result from the investigation, and in particular from the testimonies of
the witnesses and clichés produced, as well as the exchanges that continued during the public
hearing, that the establishment of these security perimeters, as documented from the evacuation
operations carried out notably at Grande-Synthe at the camp known as the Bois du Puythouck
on December 29, 2020, or on several sites in Coquelles and Calais on December 30 or during the
month of January 2021, would reveal a practice that would have had in this case the purpose
or effect of depriving journalists in particular of any visibility on the evacuation in such a way
that they would depend exclusively on the information delivered by the communication service
of the prefectures. In the state of the instruction, it does not appear that these measures, which
have been concretely assessed, have so far exceeded what is required to ensure the safety of
the operations in question, and have infringed seriously and illegaly the exercise by journalists
of their profession and as a result of the freedom of the press” (“Il ne résulte toutefois pas de
l’instruction, et notamment des témoignages et clichés produits, ainsi que des échanges qui se
sont poursuivis lors de l’audience publique, que l’instauration de ces périmètres de sécurité, tels
qu’ils sont documentés à partir des opérations d’évacuation menées notamment à Grande-
Synthe au camp dit du bois du Puythouck le 29 décembre 2020, ou sur plusieurs sites à Coquelles
et Calais le 30 décembre ou encore au cours du mois de janvier 2021, révélerait une pratique
qui aurait eu en l’espèce pour objet ou pour effet de priver les journalistes en particulier de toute
visibilité sur le déroulement des opérations de telle sorte qu’ils dépendraient exclusivement des
informations délivrées par le service de communication des préfectures. Il en va, en tout état de
cause, de même des contrôles d’identité qui ont pu être opérés. Aussi, en l’état de l’instruction,
il n’apparaît pas que ces mesures, appréciées concrètement, aient jusqu’à présent excédé ce qui
était nécessaire pour assurer la sécurité des opérations dont s’agit et aient porté une atteinte
grave et manifestement illégale à l’exercice par les journalistes de leur profession et par suite à la
liberté de la presse”).
41
United Nations, Committee against Torture, Concluding observations on the seventh periodic
report of France, 10 June 2016, CAT/C/FRA/CO/7, paragraph 17.
42
State Council, juge des référés, order of February 3, 2021, n°448721, paragraph 5 [Conseil
d’État, juge des référés, ordonnance du 3 février 2021, n°448721, paragraphe 5 ]: “the prefects of
the Nord and Pas-de-Calais regions have to ensure, in the organization of future operations, in
particular with regard to the setting of safety distances, that the exercise of the freedom invoked
is not undermined by an infringement of the kind referred to in article L. 521-2 of the code of
administrative justice” (“il appartient aux préfets du Nord et du Pas-de-Calais de veiller, dans
l’organisation de futures opérations, notamment en ce qui concerne la fixation des distances de
sécurité, à ce qu’il ne soit pas porté à l’exercice de la liberté invoquée, une atteinte de la nature de
celle mentionnée à l’article L. 521-2 du code de la justice administrative”).
43
CNCDH, June 19 2018, Opinion on the situation of migrants at the French-Italian border: “It
should be noted that people stopped for questioning on the border are not given any information
about the possibility of claiming asylum. For Border Police officials highlight the provisions of the
Schengen Borders Code, and French law, without informing foreign nationals of their right to
claim asylum”.
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