At the French-Italian Border Legal Arrangements Evade the Right to Asylum

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 borders^[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. » (with Italy, Spain, Belgium, Germany, Luxem­bourg, and Swit­zer­land). In doing so, the govern­ment suspended the rule of free move­ment specific to the Schengen area^[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.. 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 Conven­tion^[3]See the text on the UNHCR website : https://​www​.unhcr​.org/​1​9​5​1​-​r​e​f​u​g​e​e​-​c​o​n​v​e​n​t​i​o​n.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)^[4]See the text on the ECHR website : https://​www​.echr​.coe​.int/​P​a​g​e​s​/​h​o​m​e​.​a​s​p​x​?​p​=​b​a​s​i​c​t​exts&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 asso­cia­tions^[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. such as Tous Migrants, Médecin du Monde, Anafé, Amnesty International—to name but a few—come to the same conclu­sion : most migrants^[6]At 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 liberté^[7]The 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 borders^[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).. 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 State^[9]The 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 secu­rity^[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. ” 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 Union^[11]See 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-Louis^[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 … 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.