France: Constitutional Council upholds principle of “fraternity” and safeguards humanitarian assistance to migrants regardless of their status

Friday, July 6, 2018

On 6 July 2018, the French Constitutional Council delivered its decision no. 2018-717/718 QPC, which concerned a "priority preliminary ruling on constitutionality" ("question prioritaire de constitutionnalité") of provisions under Article L622 of the French Code for Entry and Residence of Foreign Persons and the Right of Asylum (CESEDA). The question was brought by the Court of Cassation in relation to the proceedings against Cédric Herrou and the so-called “crime of solidarity” (délit de solidarité).

The Constitutional Council noted that the freedom to help others with a humanitarian goal, without taking into consideration the legality of their stay in France, can be inferred from the “principle of fraternity”, which has constitutional value. It is up to the legislator to ensure that there is a fair balance between the principle of fraternity and the safeguarding of public order. The Constitutional Council observes that assisting a foreigner with his transit (“circulation”) in the country does not necessarily lead to an unlawful situation, differently from assisting with the irregular entry into the French territory. Therefore, by condemning all assistance to the transit of an irregularly staying migrant, including assistance motivated by humanitarian purposes, the legislator has not ensured a fair balance between the principle of fraternity and the safeguard of public order. Therefore, the term “for irregular residence” under the first paragraph of Article L622-4 must be declared unconstitutional.

On the other hand, it considers that the exceptions under the third paragraph of Article L622-4 CESEDA are in conformity with the principle of fraternity, as long as it is interpreted as applying to any other act of assistance with a humanitarian purpose.

Based on an unofficial translation by the ELENA Weekly Legal Update. You can find more information on the case, as well as the third party interventions before the Constitutional Council, at the website of the Groupe d'information et de soutien des immigrés (GISTI) here.

This item was reproduced with the permission of ECRE from the weekly ELENA legal update supported by theFundamental Rights and Citizenship Funding Programme and distributed by email. The purpose of these updates is to inform asylum lawyers and legal organizations supporting asylum seekers and refugees of recent developments in the field of asylum law. Please note that the information provided is taken from publicly available information on the internet. Every reasonable effort is made to make the content accurate and up to date at the time each item is published but no responsibility for its accuracy and correctness, or for any consequences of relying on it, is assumed by ECRE, the IRC or its partners.