The deportation trend has been steadily rising in recent years. In 2016, 12,900 people were sent back to their countries of origin compared with 14,200 in 2017, 15,600 in 2018 and 19,000 in 2019. Second, the expulsion of an undocumented migrant is subject to rules. It is not automatic. For example, a foreigner without a passport or without nationality cannot be expelled. In order to send him/her back, s/he must have the agreement of his/her country of origin and request a consular pass. However, these documents are issued piecemeal by the countries concerned. A deportation can therefore take a long time.

WHAT IS AN OBLIGATION TO LEAVE FRENCH TERRITORY?

The obligation to leave French territory (commonly called “OQTF”) is an administrative decision which aims to sanction the irregular stay on French territory of foreign nationals. The OQTF was created by the law of July 24, 2006; this is a deportation measure which must always be pronounced by the prefect as a consequence of a negative decision taken on an application for admission to stay or of the finding of an illegal stay of the foreigner in France. It is therefore the measure by which the prefect orders a foreign national to leave French territory.

IN WHICH CASES CAN ONE BE THE SUBJECT OF AN OQTF?

According to article L. 511-1 of the code for the entry and stay of foreigners and the right to asylum, you can be subject to an OQTF only in the following cases:

• if you cannot prove that you have entered French territory regularly, unless you hold a valid residence permit;
• if you have remained on French territory beyond the period of validity of your visa;
• if you have applied for the issue or renewal of a residence permit which has been refused or if your residence permit has been withdrawn;
• if you have not requested the renewal of your residence permit and you have remained on French territory after its expiry date;
• if your residence permit application receipt or your temporary residence permit has been withdrawn or the renewal refused;
• if your application for asylum or subsidiary protection has been definitively refused or if your asylum application certificate has been withdrawn or its renewal refused;
• if your behaviour constitutes a threat to public order and you have not regularly resided in France for more than three months;
• if you work without a work permit and you have not regularly resided in France for more than three months.

WHAT ARE THE EFFECTS OF AN OQTF?

APS is issued 1 year + 1 year

How to get this?

An OQTF is accompanied by a voluntary departure period during which you must leave French territory by your own means or by requesting RETURN ASSISTANCE . This period is in principle thirty days and runs from the notification of the decision. It can be reduced to fifteen days. This period can also be waived if:

• your behaviour constitutes a threat to public order;
• your application for a title was manifestly unfounded or fraudulent;
• you are at risk of not complying with the OQTF;

Whatever the case, OQTF's decision is automatically enforceable upon notification and for one/two year(s) OQTF's decision is automatically enforceable upon notification and for one/two year(s) . This means that the administrative authority can take certain measures within this period to ensure that you comply with your obligation. They can thus:

• require you to hand over your passport and all documents proving your identity;
• place you under house arrest with the obligation to present yourself to the police to justify the preparations for your trip;
• place you in an administrative detention center (CRA) for a period of between forty-eight hours and ninety days if you present a significant risk of absconding.

Departure times

In principle, article L.612-1 of the CESEDA provides that the foreign national benefits from avoluntary period set at thirty days which may exceptionally be longer depending on the circumstances specific to each. This means that the foreigner generally benefits from a period of thirty days to return to his country, failing which the OQTF may be enforced. However,article L.612-1 of the CESEDAtempers this principle by affirming that the administrative authority may, by reasoned decision, decide that the foreigner is obliged to leave French territory without delay. Several reasons can justify the refusal of the granting of a period of voluntary departure:

• If the behavior of the foreigner constitutes a threat to public order;
• If the foreign national has been refused the issue or renewal of his residence permit on the grounds that his application was fraudulent;
• If there is an objective risk that the foreigner will avoid this obligation.

Article L.612-1 of the CESEDA indicates that the risk can be regarded as established in the following cases:

• The foreigner, who cannot justify having entered French territory regularly, has not requested the issuance of a residence permit;
• The foreigner has remained on French territory beyond the period of validity of his visa or, if he is not subject to the visa obligation, at the expiry of a period of three months from the date of entry into France, without having applied for the issue of a residence permit
• The foreigner has remained on French territory for more than one month after the expiry of his residence permit, the provisional document issued when applying for a residence permit or his provisional residence permit, without having requested its renewal;
• The foreigner has explicitly declared his intention not to comply with his obligation to leave French territory;
• The foreigner has evaded the execution of a previous deportation measure;
• A foreigner who entered the territory of one of the States with which the Schengen acquis applies irregularly, is the subject of an enforceable expulsion decision taken by one of the States or has maintained on the territory of one of these States without justifying a right of residence;
• The foreigner has forged, falsified or issued under a name other than his own a residence permit or an identity or travel document or has made use of such a permit or document;
• The foreigner does not present sufficient guarantees of representation, in particular because he cannot present valid identity or travel documents, he has refused to communicate the information making it possible to establish his identity or his situation with regard to the right of movement and residence or has communicated inaccurate information, that he has refused to submit to fingerprinting or photographing operations.

WHAT ARE THE REMEDIES AGAINST AN OQTF?

An OQTF decision can be subject to three different appeals :

• a graceful appeal before the prefect;
• a hierarchical appeal to the Minister of the Interior;
• an action for annulment before the administrative court.

The gracious appeal and the hierarchical appeal consist in asking the administrative authority to reconsider its decision. They rarely succeed and have no consequences in the event of non-response or rejection. The action for annulment has the effect of suspending the execution of the decision of OQTF during the examination of your appeal by the court. Thus, you cannot be expelled from the territory before the judge has ruled. The action for annulment therefore offers more guarantees than the non-contentious and hierarchical appeals.

HOW SOON CAN YOU GO TO COURT?

In principle, the appeal period is thirty days from the day of notification of the decision. This period may be reduced to fifteen days in certain cases. When the OQTF is not accompanied by a period of voluntary departure, you have forty-eight hours to seize the court from its notification. The means and deadlines for appeal must be brought to your attention by appearing on the OQTF decision.

DO I HAVE TO BE ASSISTED BY A LAWYER TO GO TO COURT?

You are not obliged to appoint a lawyer to seize the administrative court, but his presence is nevertheless strongly recommended. You can also get help from an association (such as LDH, Emergency Rights, Cimade, Gisti). If your resources are low, you can benefit from legal AID to finance the costs of the lawyer you have appointed or the one appointed by the legal aid office if you do not know one. If your period for voluntary departure is thirty days, the simple filing of your application for legal aid will have the effect of interrupting the period within which you must seize the judge. In other cases, the filing of your application for legal aid will have no effect on the appeal period and you must go to court within fifteen days or forty-eight hours, depending on the case.