Detention of Undocumented Immigrants and the Judicial Impact of the CJEU's Decisions in France

Abstract

In July 2012, the French Court of Cassation held that undocumented immigrants cannot be placed in police custody simply for being in the country illegally. The Court’s judgments were preceded by a flurry of contradictory administrative measures and constitutional decisions. This confusion can be traced back to two landmark decisions handed down by the Court of Justice of the European Union in the cases of El Dridi and Achughbabian, which both dealt with the EU Returns Directive. It is argued here that prohibiting the placement of undocumented aliens in police custody is the result of a unique interplay between French criminal law and European Union law. This relationship between the two systems of law has been placed under strain by the French court’s idiosyncratic interpretation of the CJEU’s decisions. In its interpretation, the Court of Cassation has contributed to the transformation of detention from an extraordinary measure of last resort into an ordinary tool for combating illegal immigration. Based on this argument, this article draws conclusions on the French judicial authorities’ balancing of individual rights and public interests in relation to aliens’ rights.

Keywords: immigration law, refugee law, asylum, EU directive returns, French law, El Dridi, Achughbabian

JEL Classification: K33