ABSTRACT
In 1992 France established the waiting zone, a particular legal space for foreigners – primarily refugees and unauthorized migrants – who have arrived at an international airport, seaport or train station in France, but are not granted entry by the immigration. Even though physically on French territory, they are legally considered to be outside France. The waiting zone is illustrative of the limitation of liberties on a state’s territory. It is not limited to France, but can be found under various names, such as reception center, transit zone or detention area, in almost all liberal states, and is part of a global political infrastructure (JRS 2004; European Parliament 2005; Le Cour Grandmaison 2007; Intrand and Perrouty 2005; Rodier 2003a). To illustrate this practice, this chapter will provide a legal analysis of the waiting zone, with an emphasis on legal identities, legal spaces, continuing legal struggles and the limitation of liberties. The French waiting zone provides a particularly rich illustration of a legal order established to limit liberties, due to the extensive documentation available over the course of two decades (Anafé 1993, 2003, 2004a, 2004b, 2006; JRS 2004; MdM 2003; Cultures & Conflits (issues 23 (1996), 57 (2005), 71 (2008)); Bigo 1996a; Boukhalfi 2001; de Loisy 2005; Rodier 2002; OFPRA 2006; Julien-Lafferiere 2002; Makaremi 2005; see also publications of GISTI (Groupe d’Information et de Soutien des Immigrés), Office for Protection of Refugees and Stateless Persons (OFPRA), Appeal Commission for Refugees (CRR) and updated bibliography on waiting zones www. anafe.org/biblio.php). The waiting zone illustrates how border zones are established and operate – and highlight the ease of its creations, and the ease of its extension through temporal and spatial flexibility of border zones. The law on the waiting zone entered into force in 1992 and created a new legal space, the waiting zone (Loi no. 92-625 du 6 juillet 1992 sur la zone d’attente des ports et des aéroports et portant modification de l’ordonnance no 45-2658 du 2 novembre 1945 relative aux conditions d’entrée et de séjour des étrangers en France, published in JO no. 158 of July 9, 1992). It anchored previous administrative practices for the first time within a legislative framework and established a legal space of greater policing power and lesser rights than provided for by ordinary French law. The creation of the waiting zone followed normal administrative and legal
procedures to establish on French territory a space where liberties are legally restricted. The law on the waiting zone is a piecemeal structure that has developed since the early 1980s. It was created by ordinary techniques for governing and has evolved incrementally into a legal structure. In the 1980s the international zone of airports was used to keep people waiting who were not admitted to the territory; those who claimed to be refugees had to be admitted, however, to have their refugee claims assessed in France. A decree from 1982 changed the refugees’ situation: from then on they needed a permit, issued at the border, to enter France. This special procedure, known as asylum at the border, led to a number of people waiting in the international zone until their claims were assessed and a permit issued. A number of French NGOs denounced the situation in the international zone and questioned whether people stranded in international zones had any rights at all, whether they could be left there for days, or even weeks, without access to food or medical assistance. France claimed that they were outside its territory and that French law did not apply there. The law on the waiting zone was a direct result of struggles between the government, French NGOs and national and regional courts in the late 1980s, which forced France to acknowledge that the international zone was within its territory (see also Amuur v. France 1996, ECHR 17/1995/523/609). The law on the waiting zone legalized previous administrative regulations and practices, on the one hand, and introduced some fundamental rights for those confined to the waiting zone on the other. It provided an improvement over the previous situation, but it was hardly a victory for rights. The law provided a cover for previous regulations and practices, legalized them and extended these practices, previously used selectively, by applying them throughout France (CESEDA, L221).1 This was not a purely executive or legislative decision, but the judiciary had an important role in the design of this law. Integrated into this law were three major considerations stemming from judicial decisions: first, the necessity for a legal form for the waiting zone, second, the requirement of defined limits to the restraint on individual liberty, and third the Constitutional Court of France required that decisions on restraint to individual liberty/habeas corpus should not be purely administrative, but judicial decisions (Opinion of the Constitutional Court, February 25, 1992). The law on waiting zone is not a fixed legislation, entered at a point in time, but it continues to evolve through democratic procedures. Waiting zones continue to be an ongoing struggle between government, the judiciary and activists. The waiting zone is hardly an exceptional construction, and the French case suggests the view that such devices are deeply embedded in ordinary procedures of liberal democracies. The legal framework of the waiting zone singled out a specific group for different treatment and legal identification was an important requirement for governing a specific population differently. This law is applied
to a specific population – and only to that population. In this regard, the law on the waiting zone specifies “The foreigner who arrives in France by rail, sea or air and who, either is not authorized to enter French territory or requests admission under the title of asylum, can be held in a waiting zone” (CESEDA 2004: L221-1).2 The law on the waiting zone applies to two categories of foreigners: non-admitted foreigners and asylum seekers. The first category is non-admitted foreigners who do not meet the entry requirements as required by law (CESEDA 2004: L211-213). They can be denied entry to the territory due to lack of a passport, visas or other documents. This includes transit passengers, who have a different destination than France, but are refused entry to their final destination and therefore are sent back to France or denied further transport during a stopover in France. The second category is asylum seekers. According to international refugee law, asylum seekers are generally exempted from entry requirements, but the law on the waiting zone requires them to apply for a leave to enter the territory on asylum grounds according to a special procedure called asylum at the border. They can be denied entry to French territory if their application is found to be manifestly unfounded. All the non-admitted, including non-admitted asylum seekers, are to be sent back. The carrier that brought them is responsible for their return either to the port where the passenger initially boarded, or to the state that has granted the travel documents, or to any other place where the passenger can be admitted. If, however, the border police does not have sufficient information to determine the boarding station, the carrier or the state, then the passenger cannot be sent back for practical reasons and ends up in the waiting zone. After the legally determined detention period, the passenger has to be granted leave to enter the territory on exceptional grounds. Admission to territory can be granted for a variety of reasons, i.e. for grounds of asylum, for humanitarian reasons, on exceptional grounds, de facto (e.g. hospitalization) or due to imprisonment. A special case, not foreseen by law, but related to the logic of the waiting zone extends to assisted transit passengers, who are in transit, have proper entry documents for their final destination, most likely even a transit visa, but are classified as a possible risk category by the border police. To prevent them from presenting themselves at the border, they can be confined during their transit time in France for periods up to four hours at the terminal police posts and for more than four hours in the accommodation at the waiting zone. There is no legal basis or administrative decision that provides the basis for this practice, nor are there any appeal instances. This constitutes a common practice of infringement of liberty without legal basis. While they can be confined to the waiting zone, the rights guaranteed for the waiting zone do not apply to them, as they are still considered to be in the international zone. This shows how legal and administrative practices can be intertwined.
