The emotion aroused by the tragic death of the young Lola and the profile of the suspect arrested have revived the debate on the executions of Obligations to leave French territory (OQTF). The terms of the procedure are more complex than it seems. Me Chninif, a lawyer specializing in foreigners’ rights, explains the mysteries.
When and by whom is an OQTF issued?
The obligation to leave French territory is issued by the prefect in two cases: either following a refused residence permit application, or following a check that reveals the irregular situation.
First case: the request, in particular for family or professional reasons, to start studies, must be examined within 4 months. The applicant receives a receipt which allows him to stay in France until the answer is obtained. If the latter is negative because the conditions are not deemed to be met by the prefect, the latter takes a decision to refuse residence with OQTF and sets the deadline within which the foreigner must leave the country. In general, it takes 30 days from receipt of the registered letter indicating the decision for the person to organize their departure.
An irregular foreigner who threatens public order may be expelled without delay
Are there any remedies?
If the foreigner considers the decision unjustified, he seizes the administrative court during this period requesting the cancellation of the decision. Of course, the removal cannot be carried out during the time necessary for the judges to determine whether the prefectural decision is legal or not. It should be noted that for individuals who threaten public order, who have been criminally convicted, the prefect often refuses to grant a period of voluntary departure and obliges them to leave immediately.
And in the case of a finding of an irregular situation by the police?
So it’s the 2e cited case. If a non-compliant administrative situation is noted, for example following an irregular entry into the territory, a lack of a visa or an expired residence permit, the prefecture immediately issues an OQTF, without a voluntary departure period. and places the person in the Administrative Detention Center (CRA). If the foreigner has guarantees of representation, in particular through family accommodation, he can be assigned to residence during the organization of the removal, for a maximum of 45 days, because he must obtain the consular pass or have a passport made. After 2 days of detention, a liberty and detention judge must extend the detention for 28 days. If the lawyer from abroad claims a procedural fault, his client is released but remains under OQTF, he has 7 days to leave the territory.
Can a national of the European Union be expelled?
A European can stay 3 months in France, longer if he proves that he has a professional activity or sufficient resources not to be a burden on the country. After 5 years of work, he benefits from a right of permanent residence.