Since 2015, France has been attempting to curb illegal immigration through border controls and immediate rejections. In many ways, the French approach resembles the five-point plan presented last week by German chancellor candidate Friedrich Merz, whose key point is the “rejection of all attempts at illegal entry without exception.” Under the impression of the Islamist terrorist attacks in Paris on November 13, 2015, the socialist government reinstated regular border controls.
Subsequent police investigations confirmed the suspicion that a significant number of the perpetrators had entered the EU disguised as refugees, after being prepared for their mission in the Syrian-Iraqi territory of the terrorist organization Islamic State (IS). They took advantage of the inadequate or non-existent controls at the external and internal borders to organize their deadly undertaking.
Since 2015, France has extended the exceptional regulation every six months. According to the Schengen Borders Code, it is permissible to introduce temporary border controls in the event of threats. These must be regularly evaluated, and evidence must be provided as to why the controls remain necessary. However, in a ruling against Austria on April 26, 2022, the European Court of Justice (ECJ) ruled that the continuous extension of border controls was unlawful. Nevertheless, France maintained its border controls and seeks to have the Borders Code adapted accordingly.
When rejecting illegal migrants, successive French governments have also made use of interpretative leeway in European law. At the borders with Italy and Spain, individuals without valid entry documents are turned back based on bilateral readmission agreements. Over the past decade, more than 500,000 people have been rejected, according to the count of an asylum aid organization. Repeat attempts are included in this number. The French government considers these entry refusals to be covered by Article 14 of the Schengen Borders Code. According to the prevailing legal opinion in Paris, this also applies to individuals who have submitted an asylum application. Since Italy and Spain are considered safe third countries, the principle of non-refoulement does not apply in this case, according to the French Interior Ministry.
However, the state ombudswoman for fundamental rights considers the approach at the French-Italian border to be unlawful. In a 184-page report from last year, called a “Decision,” the fundamental rights commissioner criticized “systematic violations” of asylum seekers’ rights. She noted that the entry refusals were not subject to judicial review. She estimated the number of rejections in 2023 at over 33,000, with 80 percent concerning the French-Italian border.
In a ruling on September 21, 2023, the ECJ reiterated that while a state may reintroduce controls at its internal borders and issue entry refusals, this must be done within the framework of EU legal protections, particularly the 2008 Return Directive. The case had been brought by French asylum aid organizations. The Conseil d’État, France’s highest administrative court, interpreted the ECJ ruling in February 2024 to mean that a third-country national under control could be held at the border for “up to 24 hours” while their right to stay was examined. If deportation was likely, they could be placed in administrative detention to enforce the decision. This means that immediate rejections are no longer possible in the case of asylum seekers. However, the Council of State allows the government the necessary room for maneuver to reject migrants after review if they have no right to asylum or protection. The Council of State also emphasized that individuals in deportation detention are entitled to legal assistance, an interpreter, and medical care.
The Council of State maintained that asylum seekers could be refused entry based on bilateral agreements concluded before the 2008 Return Directive. France had already signed the so-called Chambéry Agreement with Italy in 1997. Interior Minister Bruno Retailleau, from the conservative Les Républicains (LR), sees the Return Directive as the biggest obstacle to an efficient asylum policy in the EU. The so-called Dublin system has long been considered dysfunctional. Regarding immigration policy, Retailleau has stated that the legal framework is “neither untouchable nor sacred.” He argues that France’s sovereignty is being undermined if the EU requires it to allow entry to anyone submitting an asylum application. Retailleau criticized the EU directive as a “non-return instruction” in its current form.
Although France’s approach continues to be challenged as illegal by asylum aid groups, the EU Commission has refrained from initiating infringement proceedings. Interior Minister Retailleau has repeatedly promised to increase the number of direct rejections and deportations.
