French Interior Minister Gérald Darmanin announced last week that he had stripped 147 'radicalized' migrants of their refugee status. This announcement causes legal issues, particularly regarding its implementation. It also raises questions about the impartiality of Ofpra, the body responsible for granting international protection.
"We must act firmly against foreigners who, through their actions, pose a serious threat to public order." Gérald Darmanin's warning, addressed to the prefects of the departments on September 29 2020, has now been enacted. And refugees are among the first who have been affected by this security crackdown.
"In an unprecedented move, we have asked Ofpra [the French Office for the Protection of Refugees and Stateless Persons] to withdraw asylum protection from those who contradict the values of the Republic," said the Minister of the Interior in an interview with the French newspaper Le Figaro, published on May 6.
This move is "unprecedented" in terms of its scale. In the last three months, 147 refugees have been stripped of their international protection by Ofpra. This is a huge increase on the the 77 retractions decided by the agency for the whole of 2019, and "the hundred" recorded "in 2020 for the same reasons," says Julien Boucher, director general of Ofpra, speaking with InfoMigrants.
These figures reflect the policy applied by Darmanin since he took office in July 2020, namely "to judge foreigners for what they do and not for who they are," he emphatically insisted to Figaro.
A clear legal framework
Having their international protection withdrawn may deprive an individual of their legal status in their adopted country but not of their reason for being a refugee in the first place. In plain language, this means that the individual in question is still at risk in his country of origin. So can we deport a criminal foreigner after his status has been withdrawn? The reality is far from simply sending people back to where they came from.
"Contrary to what the minister suggests, the relationship between the withdrawal of status and deportation is not automatic," Laurent Delbos, a lawyer specializing in the rights of foreigners, explains to InfoMigrants. A deportation (or removal order) is also governed by very specific regulations.
The Geneva Convention does allow for the deportation of refugees when their presence constitutes a danger to the security of the country in which they are found. But the European Court of Justice only authorizes this step on one condition: "That the refugee does not run a real and serious risk of being subjected to inhuman and degrading treatment in the country they are returned to."
This means that, in practice, Darmanin's room for maneuver is limited. "In a certain number of cases, [withdrawing refugee status from a foreigner] can result in depriving a person of rights, even though they cannot be deported. What does the world gain then from a security point of view?" asks Delbos.
Impartiality of Ofpra in question
There is another element of the minister's speech that raises questions: can the ministry demand that Ofpra withdraws protection? Although it is under the administrative and financial supervision of Darmanin's ministry, Ofpra is an independent institution. "The office carries out its missions impartially [...] and does not receive any instructions in the performance of these missions," its statutes claim.
Nevertheless, it can act "at the request of an administrative authority, which is either the minister in charge of asylum or the prefect, according to articles R. 511-2 and R. 512-2 of the code of entry and residence of foreigners and right of asylum (CESEDA)," says Boucher. In other words, specific cases of delinquency, public order disturbances or radicalization can be referred to Ofpra by prefectures of the Ministry of the Interior. "It is following such requests that the withdrawals of protection cited by the minister have been decided by Ofpra," explains the agency's director general.
This dual prerogative raises the question of the independence and impartiality of the office, whose decisions are increasingly in line with the government's policy of tightening deportation measures. According to a source within the organization, by the end of the first term of 2021, Ofpra had even set up a department dedicated to "processing all procedures for ending asylum protection status".