France’s Compliance with the European Free Movement Directive and the Removal of Ethnic Roma EU Citizens

Legal Provisions in Contravention of Directive 2004/38/EC

     “Abuse of Rights”

     Threat to Public Order

Inadequate Procedural Safeguards  

Continuing Unlawful Discrimination against Roma

Conclusion

Human Rights Watch respectfully submits its observations to the European Commission in the context of its analysis of compliance with EU law of laws and measures undertaken in France with respect to Roma with EU citizenship.

Having carried out detailed research and analysis on France’s removal of ethnic Roma EU citizens belonging to the Roma ethnicity, it is our assessment that French law and practice in this area violate its obligations under EU law as well as international human rights law. 

In October 2010, the French government pledged to the European Commission to introduce provisions into an immigration bill to ensure correct transposition of the 2004 EU Freedom of Movement Directive (Directive 2004/38/EC) (hereafter “the directive”).  The pledge followed concern from the Commission over France’s expulsion of ethnic Roma EU citizens during the summer of 2010.

Unfortunately, Law No. 2011-672 on Immigration, Integration and Nationality (hereafter “2011 Immigration law”) enacted on June 17, 2011, does not remedy the concerns that led the Commission to intervene.

First, the law contains provisions that directly contravene the directive and appear designed to facilitate the removal of Roma from France.  Second, the procedural safeguards are inconsistent with the requirements of the directive, and amount to a failure to transpose it.

Third, in practice, French authorities have continued to target Roma EU citizens for removal, often in conjunction with camp or squat evictions, in a way that amounts to unlawful discrimination under EU and human rights law. We outline these concerns below.

Legal Provisions in Contravention of Directive 2004/38/EC

Human Rights Watch acknowledges that the 2011 Immigration law does include provisions to ensure fair and appropriate procedural safeguards in keeping with the directive. 

In conformity with article 27 of Directive 2004/38/EC, the law specifies that the authorities may order an EU citizen to leave the country (obligation de quitter le territoire français, OQTF) within the first three months of their stay in France if the person’s conduct represents a “genuine, present and sufficiently serious threat to one of the fundamental interests of society” (article 39(3) of French law). In conformity with article 28 of the Directive, the law also stipulates that such orders be subject to an individual assessment of the EU citizen’s personal circumstances.

“Abuse of rights”

Article 39 of the law establishes the power to impose an OQTF on EU citizens whose stay in France constitutes an “abuse of rights,” defined as “renewal of stays of less than three months for the purpose of remaining on the territory [of France] although the conditions required for a stay of longer than three months are not met” and “staying in France for the fundamental purpose of benefitting from the social assistance system.” This is on its face incompatible with the 2004 Directive.

The directive guarantees the right of all EU citizens to travel to and remain in another EU country for up to three months “without any conditions or any formalities other than the requirement to hold a valid identity card or passport” (article 6).  The right of residence beyond three months is dependent on fulfilling one or more criteria laid out in article 7, including that individuals are employed, self-employed, or have sufficient means to support themselves without becoming a burden on the host country’s welfare system. 

The directive states explicitly that expulsion should not be the “automatic consequence of recourse to the social assistance system” of the host Member State. The 2009 European Commission guidance on proper application of the 2004 Directive is clear that “[o]nly receipt of social assistance benefits can be considered relevant to determining whether the person concerned is a burden on the social assistance system.”[1]The mere assumption that a person might become a burden on the social assistance system cannot justify an expulsion measure.

Indeed, while lack of sufficient resources may constitute grounds for determining that an EU citizen does not meet the requirements for stay beyond three months, only proof that the individual represents an unreasonable burden on public finances may constitute grounds for ordering his or her removal.

There is a very real risk that the provision allowing for removal of those deemed to be staying in France “for the fundamental purpose of benefitting from the social assistance system” enshrines in law a practice of systematically ordering the removal of Roma from France on a mere presumption they might one day benefit from social assistance, an approach incompatible with France’s obligations under EU law.  This practice was sanctioned by France’s Council of State in a November 2008 ruling in which it found that lack of sufficient resources can serve as a justification for a removal order against an EU citizen “even if the concerned individual has not yet received any benefits from the social assistance system.”[2]In our view, Directive 2004/38/EC requires an individual assessment based on facts, such that a determination that an individual constitutes an unreasonable burden on the state can only be reached if the person has in fact received social assistance benefits.

Human Rights Watch has examined 198 OQTF orders served on Romanian Roma between August 2010 and May 2011 by six different prefectures across France. Each prefecture uses a standardized form, and virtually all OQTF orders adopted by a given prefecture are identical. There are some differences, however, between the forms used by different prefectures.[3]

In only two cases we examined was any evidence provided – in the form of statements by the individual concerned – that any kind of social welfare assistance had been received.  In all the other cases, no evidence was provided.

Those include cases where the form affirms categorically that the individual has overstayed three months without fulfilling the conditions for long-term residence; cases indicating that the individual cannot prove having been in France for less than three months; and those where the form concludes that the individual constitutes an unreasonable burden on the French state or lacks sufficient resources to avoid becoming a burden, though no evidence is provided that the individual in fact constitutes any kind of burden on the state. 

After a series of administrative court decisions in Lyon annulling OQTF orders on the grounds there had been no individual examination, the Rhône prefecture began in late 2010 inserting a new, standardized paragraph into the orders. According to the migrants’ rights organization Service œcuménique d'entraideCIMADE, the administrative court in Lyon annulled 12 OQTF orders between October 2010 and April 2011 on the grounds that there had been no individual assessment.[4]It is worth noting that another chamber of the same administrative court has rejected 11 appeals against identical orders in the same period.[5]All of the 26 OQTF orders issued by the Rhône prefecture between December 2010 and April 2011 examined by Human Rights Watch include the following phrasing:

Considering that it clearly appears that [the person] lives in particularly precarious living conditions, that s/he does not have declared employment, does not dispose of means of subsistence or sufficient resources, facts established during his/her statement on [date], that s/he declares that s/he lives off begging and does not have any medical insurance…[6]

In six cases there is no mention of living off begging, and in two cases the individual declared receiving social welfare assistance.

In our view this standardized paragraph appears pro-forma and the absence of additional information suggests that no genuine and comprehensive individual assessment has taken place. For example, it does not include critical issues such as the individual’s health, family situation, or the impact of removal from France on members of the individual’s family, particularly children who may be enrolled in the French school system. Nor does it include any assessment of the situation upon return in the country of origin.

Seventy-one of the decisions reviewed by Human Rights Watch contained no evidence that the individual had entered France over three months prior to the adoption of the OQTF. In 35 OQTF orders from three different prefectures (Rhône, Haute-Savoie and Loire), the form states simply that the individual “has not established a presence on French territory of under three months,” placing the onus on the individual to prove the date of entry.  The administrative court in Lyon has rightly annulled at least 12 OQTF orders since November 2010 in part because the authorities had not established that the individuals concerned had indeed overstayed the three-month period.

In 36 OQTF orders from the Val-de-Marne and Seine-Saint-Denis prefectures, the forms affirm that the individual has been in France for over three months without providing supporting evidence.

Administrative practice as well as the approach of the administrative courts varies from region to region. As noted above, the Rhône prefecture has adapted its methods – or at least its forms – in response to the court’s censure. However, the Seine-Saint-Denis and Val-de-Marne prefectures were using the exact same forms and procedures in April 2011 as they were in August 2010.

Finally, it is worth noting that failure to leave France within one month after being served with an OQTF can lead to detention and forcible removal. Between October 2010 and May 2011, CIMADE tracked eleven cases in the Lyon area in which Roma were arrested and detained for failing to leave France by the one-month deadline. The administrative court annulled the detention measure and ordered the release of eight of these individuals, while it upheld the detention in the other three cases. In the same period, a total of 107 Romanians and six Bulgarians were detained in the Lyon immigration detention center (Centre de retention administrative, CRA).  Only nine other EU citizens, from five other countries, were detained during the same period.[7]

Threat to public order

Article 63 of the law establishes that EU citizens may be subject to an expulsion order (arrêté d’expulsion) only when their personal behavior constitutes a “genuine, present and sufficiently serious threat to one of the fundamental interests of society.” This is in keeping with article 27 of Directive 2004/38/EC.  

However, article 65 expands the power to use a different procedure (a prefectoral order to remove to the border, arrêté préfectoral de reconduite à la frontière, APRF) to remove all foreigners, including EU citizens, deemed to pose a threat to public order, including those “liable to prosecution” for certain crimes such as drug trafficking, human trafficking, profiting from prostitution by others, certain kinds of aggravated theft, exploitation of begging, and illegal land occupation.[11]Statements from highly-placed officials, discussed below in the section on discrimination, linking the latter two offenses to Roma suggest that these provisions may be targeted at Roma.  

The wording of article 65 permits a foreigner, including an EU citizen, who has resided legally in France for under three months to be subject to a removal order on a mere suspicion of having committed one the offenses listed above; no conviction would be required. It should be noted that under French law, an APRF must be appealed within 48 hours of notification, a very short time-frame.

This article directly contradicts Directive 2004/38/EC which establishes the high threshold of “genuine, present and sufficiently serious threat” to a fundamental interest of society for public order and security removals.  In accordance with the Commission’s 2009 guidance on the Directive and the jurisprudence of the European Court of Justice, expulsions undertaken on these grounds must comply with the principle of proportionality and be based exclusively on the personal conduct of the individual concerned.  These measures cannot be taken on general preventive grounds or justified merely by a general risk. 

The fact that different procedures are engaged does little to change the basic fact: article 65 allows for the removal of EU citizens on public security grounds using a threshold far below that established in the Directive 2004/38/EC and confirmed by the European Court of Justice.

The inclusion of liability to prosecution for illegal land occupation as grounds for removal is particularly troubling.  It appears designed to circumvent established administrative law jurisprudence in France that unlawful occupation of land, even under circumstances posing a risk to public health, is not enough to establish the existence of a threat to public order.[12]  In August 2010, the Lille administrative court annulled eleven APRF orders, rejecting the government’s arguments that illegal occupation of land justified expulsion on public order grounds.[13]

It was already the case prior to the Immigration Law that in flagrante arrests involving petty crimes give rise to APRF orders. In October 2010, the prefecture of Alpes-de-Haute-Provence issued an APRF to I.C. the day after he was arrested while allegedly stealing from a waste reception facility.  In April 2011, the prefecture of Rhône issued at least two APRF orders against two men arrested in separate incidents in which they were accused of theft from waste reception facilities. A.N. received an APRF the same day he was arrested; M.A. received if the following day. It is difficult to interpret such petty crimes as constituting a “genuine, present and sufficiently serious threat” to a fundamental interest of French society.

Inadequate Procedural Safeguards

The law introduces the explicit requirement that orders to leave French territory concerning EU citizens for “abuse of rights” (under article 39) and expulsion orders for threat to a fundamental interest of society (under article 63) be based on an assessment of the individual’s circumstances, “in particular the length of the person’s stay in France, age, health, economic and family situation, social and cultural integration in France and the intensity of ties with his country of origin.” The language in the bill in relation to these articles corresponds to the language in article 28 of Directive 2004/38/EC.

But these procedural safeguards are not included in article 65 concerning APRF removal decisions  on suspicion of having committed certain offenses, creating uncertainty as to whether the authorities would be required to conduct personal assessments in these cases.

In addition to the gap for removals under article 65, the French law fails to specify critical aspects of the proportionality assessment required under the directive.

The European Commission has indicated that the proportionality assessment of an expulsion measure based on public policy or public security grounds should include “the impact of the expulsion on the economic, personal and family life of the individual (including on other family members who would have the right to remain in the host Member State)” [emphasis in original] as well as “the seriousness of the difficulties which the spouse/partner and any of the children risk facing in the country of origin of the person concerned.”[14]

The Commission has also emphasized that any kind of expulsion or removal measure based on public order or security grounds should look at the degree of social danger caused by the individual, the nature of the offending activity, and the frequency, cumulative danger and damage caused, as well as the individual’s conduct since the behavior was engaged in.

According to the Commission, a criminal conviction does not constitute, in and of itself, grounds for expulsion or removal measures. Even multiple convictions do not suffice without further evidence to show that the person’s presence constitutes a continuing threat to public security.[15]

It is worth noting in this regard that the recently adopted immigration law does not explicitly state that prior convictions cannot serve as the sole grounds for determining a public order removal.

It is therefore our view that the 2011 Immigration Law, in failing to require explicitly an individual assessment in article 65 and in failing to specify all of the elements of such an assessment, does not provide the fundamental procedural guarantees required by Directive 2004/38/EC.

Continuing Unlawful Discrimination against Roma

We understand that the Commission has analyzed France’s practices with respect to expulsions of Romanian and Bulgarian citizens in the light of EU laws on freedom of movement. 

We believe France’s conduct also raises serious concerns that Roma from these countries have been specifically targeted in breach of the Charter of Fundamental Rights of the European Union. Under the terms of article 21(1) of the Charter, targeting a particular ethnic group for restrictions on their rights to freedom of movement under EU law is clearly prohibited. Since there is a clear nexus between France’s actions and its EU law obligations in relation to free movement, the EU Charter is applicable.

There is ample evidence of continuing discrimination contrary to the Charter against ethnic Roma EU citizens on the part of the French authorities.  Statements by high-level officials and government circulars all illustrate a concerted administrative policy of targeting Roma for camp evictions and removal from France.

For example, a July 28, 2010 statement from the office of President Sarkozy said “The President of the Republic…deems totally unacceptable the…lawlessness that characterizes the Roma populations that have come from Eastern Europe…”.[16]The statement characterizes unauthorized Roma settlements as “sources of illegal activities, profoundly disgraceful living conditions, [and] the exploitation of children for the purposes of begging, prostitution or crime.”[17] In a speech on July 30, 2010, President Sarkozy said “The general rule is clear: illegal immigrants must be escorted back to their countries. And it is in this spirit that I have asked the interior minister to put a stop to illegal Roma settlements. These are areas of lawlessness that cannot be tolerated in France.”[18]He added that it was not about stigmatizing Roma.

High-ranking ministers in the French government explicitly linked new measures facilitating the removal of EU citizens – now enshrined in the Immigration law and discussed above – to Romanian and Bulgarian citizens in particular, as well as activities and camps associated with Roma. The then Immigration Minister Eric Besson proposed the measures at a press conference on August 30, 2010, in the context of efforts to “fight more effectively against illegal immigration and human trafficking networks in Romania and Bulgaria.” At the same press conference, the then Interior Minister Brice Hortefeux singled out an increase in crimes committed by Romanians in Paris over the last year and a half. He deplored “women and children spending entire days begging in appalling conditions in order to take their haul to the people who are exploiting them,” and the conditions in unauthorized settlements.

Finally, Interior Ministry circulars illustrated clearly both the administrative practice of associating camp evictions with efforts to remove non-nationals from France as well as a policy of targeting Roma camps for such operations.

A government circular dated June 24, 2010 ordered prefects and police authorities to “proceed with the eviction of illegal camps” and “adopt removal measures against the illegal occupiers who do not have French nationality and are in an illegal situation.” The same circular indicates that police operations to evict illegal camps should be taken as opportunities to verify the residency status of the occupants.

Another government circular dated August 5, 2010 suggested a clear policy of systematic expulsions of Roma in connection with camp evictions.

It began with recalling President Sarkozy’s objectives: “300 illegal camps or settlements should have been evicted within 3 months, with Roma ones as a priority.”[19] It went on to say:

the operations conducted since July 28 against illegal Roma camps have led to a too limited number of removal orders. These operations constitute a strong commitment undertaken by the government … They require as of now a total mobilization of personnel from you and all the services, with priority placed on illegal Roma camps … The operational approach includes in particular … evictions of illegal camps and the immediate removal of foreigners in an irregular situation … These operations should not be limited to dispersal operations.[20]

The government replaced this circular on September 13, 2010, only after its unauthorized publication provoked a political scandal. The new circular removed all reference to Roma but failed to prohibit explicitly the priority targeting of camps occupied by Roma.  

On April 7, 2011 the Council of State ruled that the August 5 circular had violated the principle of equality before the law, because “the objective…of protecting the right to property and preventing threats to public health, security and tranquility did not authorize [the Interior Minister] to implement…a policy of evictions of illegal camps designating especially some of their occupants by virtue of their ethnic origins.”[21]

In February 2011, the then Interior Minister Brice Hortefeux said that 70 percent of the 741 unlawful Roma camps identified in July 2010 had been dismantled.[22]

Evictions of unauthorized Roma camps and squats have continued since July 2010. In many cases, the occupants were systematically given orders to leave France in the days leading up to the eviction and on the day of the eviction itself. On November 3, 2010, for example, a camp in the center of Lyon and another in Créteil, outside Paris, were dismantled and their inhabitants dispersed. Many of those living in the Paul-Bert camp in Lyon had been issued OQTF orders in the weeks preceding the eviction. All 28 adults present at the Créteil camp on the day of the eviction were issued OQTF orders. A number of those evicted from the Paul-Bert camp went to live in an abandoned building in the Vaise neighborhood of Lyon, already occupied by Roma families from Romania. Human Rights Watch visited the building in late November and spoke with three families living there. All of the occupants were evicted on December 17, 2010, on the basis of an order from city hall.[23]

In early March 2011 over 30 OQTFs were delivered to residents of a camp in Lyon called Gerland, in advance of the camp’s early May eviction.[24]On April 12, 2011 a camp in Creteil housing 74 people was evacuated; all 42 adults were given OQTFs.[25]  On April 21, 2011, around 60 OQTFs were delivered to residents of a camp in Saint-Denis, near Paris. [26]A week later, on April 27, 2011, a Roma camp in Fontenay-sous-Bois was evicted; all 17 adults living in the camp were given OQTFs.[27]On May 3, 2011, some 60 OQTFs were distributed to residents of a camp in La Courneuve, outside Paris, slated for eviction.[28]

Camp evictions leave the vast majority of residents homeless.  Human Rights Watch has interviewed many Roma in Paris and Lyon who were forced to sleep in parks or metro stations, including with young children, for days or even weeks following an eviction before finding some kind of shelter.  We met, for example, with a family of eight (three adults and five children, including one infant) living in a car following their eviction from the Paul Bert camp in Lyon in November 2010. In some cases, families with young children are housed temporarily in hotels or emergency shelters, but these remain exceptions to a general rule of offering no alternative housing upon eviction.  Most Roma we interviewed had experienced serial evictions.

French official practice with respect to surveillance and identity checks in the camps varies from city to city, even from one area of a city to another. We are nonetheless concerned about reports of systematic repeat checks by the police of residents in Roma camps or squats that appear to pursue two objectives. First, to acquire general information about the number of residents (which may fluctuate within short periods of time) and conditions in the occupied area or building. This objective can be justified on grounds of public health and safety, as well as to adequately plan an impending eviction operation. The second objective would seem to be to gather information regarding the length of stay in France of individual residents, in view of issuing OQTFs.

Police in Lyon, for example, appear to regularly ask Roma residents about the length of their stay in France and their livelihood when conducting visits in camps or squats. During a visit in November 2010 to Lyon, we heard numerous reports of police asking Roma to sign pieces of paper after these brief interviews without informing them of its contents. We have since heard further reports of this practice in the Lyon area in April and May 2011.[29]

Even if one were to conclude that French measures against EU citizens did not target Roma, the measures have had, and continue to have, a disproportionate impact on Roma, primarily from Romania and Bulgaria. Romanians constituted the largest national group subject to executed removal orders in 2009.[30]  The then Immigration Minister Eric Besson stated in September 2010 that 11,000 Romanians and Bulgarians were removed from France in 2009, while a total of 580 citizens from all the EU countries combined had been removed in the same period.[31]

There are no official statistics on the proportion of those removed who were Roma. But evidence of a government policy to target Roma for expulsion or return (high-level statements and internal circulars), press reports, and research conducted by Human Rights Watch in France and Romania and other nongovernmental organizations all suggest that the vast majority of Romanians and Bulgarians removed from France are Roma.

Then Minister Besson told the French National Assembly in November 2010 that 13,241 of the 21,384 foreign nationals removed from France in the first nine months of 2010 were Romanians and Bulgarians (almost 62% of all removals).[32]  Of that group, 6,562 Romanians and 910 Bulgarians were forcibly removed. The remaining 5,086 Romanians and 683 Bulgarians returned to the countries of origin under the French Office for Immigration and Integration’s (OFII) voluntary assisted return program.

In this connection it is worth noting that OFII-financed reintegration projects in Romania are focused on Roma, further indication that the Roma are the principal targets for OFII returns.

While some individuals seek out the OFII to take advantage of the program, the fact that many Roma who have participated did so only after receiving an order to leave the country raises serious questions about the voluntary nature of the return.  OFII representatives are often present at large-scale evacuations alongside law enforcement officials tasked with issuing OQTF orders. Council of Europe Commissioner for Human Rights Thomas Hammarberg expressed his concerns in 2008 over whether repatriations under the OFII program were genuinely voluntary when linked with “intimidating, or even improper, police operations,” and over reports of individuals having their passports confiscated until their arrival.[33]

Conclusion

France has not fulfilled the commitments it undertook with the Commission in October 2010.  Law No. 2011-672, enacted on June 17, 2011, does not faithfully or fully transpose Directive 2004/38/EC; indeed it contains provisions that are on their face incompatible with the directive. Over the past six months, French authorities have continued to pursue a policy that targets Roma from Eastern Europe for camp or squat evictions associated with removal orders.

The then Immigration Minister Eric Besson told the National Assembly in November 2010 that the government had provided the Commission sufficient documentation to prove there had been no discrimination. We are unable to address the arguments and information put forward by the French authorities because this documentation has not been made public.  However, on the basis of public statements by high-level officials, written memoranda, and observable practice, we are convinced that the French authorities continue to single out Roma from Romania and Bulgaria for removal orders.

While there is ample evidence that authorities have systematically used the argument of insufficient resources to remove Roma, there is no indication of a comparable systematic use against non-Roma EU citizens who may have overstayed the three-month limit. The vast majority of EU citizens ordered to leave France or forcibly removed are from Romania, followed by Bulgaria; as stated above, the vast majority of these are Roma.

Based on the facts available, the European Commission should conclude that French law and practice violates Directive 2004/38/EC as well as the EU Charter of Fundamental Rights. We urge you to conduct a thorough analysis of the law as well as ongoing administrative practices in France, and publish your findings and recommendations to the French authorities in a timely fashion, and make clear the possibility of reactivated infringement proceedings in the event of continued non-compliance.