Liberté, Égalité, Expulsé (with Serge Slama)

A conversation with Professor Serge Slama about how France's administrative system manufactures illegality.

A protest banner at the Place de la République in Paris reading: “France is made up of migrations.” Caption: Reddit/HoodedHorse

Several weeks before the US election — before French President Emmanuel Macron announced his willingness to work alongside Donald Trump “with his convictions and mine” and before Trump announced the architects behind his planned mass deportation campaign — I spoke with French Professor Serge Slama about how France’s own deportation system is set up, and who profits from it.

France has the unenviable position of being the European country that doles out the highest number of deportation notices, yet enacts — proportionally — the fewest deportations. How did this happen, and what does this mean for French society?

As Slama explains, since the 90s, France’s administration for dealing with naturalizations, work visas and asylum claims — the prefecture — has become little more than an “illegality machine.” This apparatus, in turn, creates a subaltern class progressively forced into the shadows and stokes anger around a wave of immigration that never materialized at the borders, but was rather created from within.

This interview, conducted in French, has been translated and lightly edited for clarity. All errors should be attributed to the author and not the interviewee.

Phineas Rueckert: Just to start, could you please quickly introduce yourself and tell me a bit about the research that you are doing on the subject of migration and integration in France?

Serge Slama: My name is Serge Slama, and I’m a professor of public law at Grenoble Alpes University. I’m a member of the Center for Legal Research and affiliated with the Migration Convergence Institute. I’m a specialist in foreign law, and more generally liberty laws.

Phineas Rueckert: That's exactly what I wanted to talk to you about, so I'll get right to the point. There has been a lot of talk recently about OQTFs (TL;DR for English readers: obligations de quitter le territoire français, or “obligations to leave French territory,” a type of deportation notice). This has become a bit of a trending topic considering the recent killing of Philippine by a migrant with an outstanding deportation notice, but also, more generally, the rhetoric of the new Interior Minister. So I wanted to start with a basic question: what is an OQTF; how, in concrete terms, are OQTFs handed out; and for what reasons are they distributed?

Serge Slama: The obligation to leave French territory is the main administrative measure for removal of persons from French territory — the equivalent in American law of a deportation order. It’s an administrative measure order issued by the prefect. Last year, around 130,000 obligations to leave the French territory were handed out in France.

There are two primary forms of an OQTF. The first one applies to people who apply for a residence permit at the police prefecture — this can be asylum seekers, students, workers, etc. — who are refused a residence permit and, at the same time, handed a notice saying that they must leave French territory within a voluntary departure period of 30 days. That is to say we give them 30 days to leave, but this 30-day period is also the deadline to appeal the matter to an administrative judge.

Since this measure has existed since the 1980s, it has always been possible to appeal to the administrative judge. As long as the judge has not ruled on the legality of the OQTF measure, the foreigner cannot be deported. So, in practice, there are about 90,000 obligations to leave the French territory with a voluntary departure deadline each year — the majority of OQTFs in reality — and almost all foreigners refer the matter to the administrative judge. Normally the administrative judge is supposed to rule within six months, but in practice it's longer than that. And so it's not uncommon for foreigners to wait about a year for a decision from the administrative judge, during which time they stay in France.

Then the type of second OQTF, the kind we’re talking about more about today, is the obligation to leave French territory without the voluntary departure delay. This concerns either undocumented foreigners who are arrested in the street through random searches (about 30,000 people per year in France), people released from prison (about 5,000 people), or people who are considered to be threat to public order. And in these cases, it's not voluntary departures. As a general rule, either the prefect puts the person into administrative detention for up to 90 days at most, or house arrest. (By the way, I'm talking about mainland France because in the overseas territories there are more, especially in Mayotte.)

Phineas Rueckert: Maybe you don't have the numbers or maybe the numbers don't even exist, but is the French State using this tool more frequently than before?

Serge Slama: There is no doubt that the number of OQTFs is on the rise. To give you a figure: in 1990, there were less than 10,000 OQTFs per year; in 2018, it was 100,000. Even back in the 90s, parliamentarians, ministers, etc. were complaining about the low execution rate when there were fewer than 10,000 per year!

There was a first acceleration of OQTFs when Nicolas Sarkozy was named first Minister of the Interior, then elected President of the Republic. So, there was a tipping point around 2003 to 2005, which is fairly well known, when Sarkozy tried to implement what we call “numerical objectives” for prefectures and border police. This is when there really started to be a massive deportation apparatus. After that, there was another tipping point, which was the 2011 “Besson Law.” This was when France adopted the so-called “Munich Return Directive,” modeled after a European law that obligated states to impose a deportation notice on any undocumented person they are aware of, called a “return decision.”

The problem is that in France, we have this dual system. As such, we are the country in Europe that hands down the most OQTFs. If you removed those “voluntary” return decisions and included only the 30,000 measures without a voluntary departure period, it's pretty much comparable to Germany, for example. Then again, even among the 30,000 OQTFs that are handed out without a voluntary decision, only 40% of people are sent home.

It's really a very old problem that has never been solved by the 20 or so ministers of the interior since the beginning of the 90s. All of them have pretty made the same speech and no one has found the solution. But the fact remains that we are the country that produces the most OQTFs and one of the countries that proportionally executes them the least.

Phineas Rueckert: This might be a stupid question, but wouldn't the answer be to simply stop using OQTFs on people whose visa claims are rejected?

Serge Slama: As for me, I support this. To retransmit a concept from an American author Nicholas de Genova, who writes mostly about Mexicans in the United States, what we are witnessing in France is the “legal production of irregularity.” Genova has reversed the rather Trumpian perspective that Americans are being invaded by immigrants by saying, ‘No, in fact that it is the American State that produces irregularity, and that this irregularity is structural, it is voluntary, and it is for economic reasons.’”

His is, in reality, a Marxist reading, but in any case, I think it is brilliant. The manufacture of undocumented immigrants is, above all, an administrative problem. It is the administration — the state — that defines who is documented and undocumented and who produces this irregularity. And here, the OQTF is typical of the French deportation machine’s ineffectiveness. The prefectural agents who process OQTFs know full well that nine out of 10 are not executed. Administrative tribunals and judges also know that for people with a voluntary departure deadline, most are not returned.

So it is a system that creates a void rather than than actually processing people’s claims and examining their whole situation. If we didn’t have this slightly mechanical production of irregularity, we would not have 500,000 undocumented immigrants in France, most of whom are the subject of an OQTF.

Phineas Rueckert: Obviously, what we saw with last year's immigration law was that even when it’s proposed to regularize a very small number of undocumented immigrants — that is to say those who have been there for a long time, who have a job, etc. — even that is now considered politically impossible. Are we observing a shift with [former Interior Minister] Gerald Darmanin, and even more so now with [current Interior Minister Bruno] Rétailleau?

Serge Slama: On the one hand, I would note that Retailleau is already having to confront the reality of the situation. When he was a Republican senator, he said, 'No regularizations.’ Period. Today, he is recognizing the need for at least some regularizations, especially in certain economic sectors, because otherwise he would have employers on his back, the Medef [Mouvement des Entreprises de France, a French employers federation] on his back. Even for Retailleau, who has a very tough rhetoric vis-a-vis immigration à la [former Interior Minister Charles] Pascua, now that he is in the ministry and he recognizes how the system works, he knows he needs to regularize at least some undocumented workers. Some 7,000 to 10,000 per year are already being regularized today.

Often you have to ask yourself: who benefits from this system? What is the point in France of having a workforce of 500,000 undocumented immigrants? There are economic interests that are obvious. We have a set of levers that explain this production of irregularity and we also have the fact that the administrative and border police are inability to get rid of this many people, even if they wanted to. Luckily in France, there are no mass deportations. We don't use trains to carry people away. Foreigners have the right to a hearing. We do an individual examination of their case.

So we have this machine that is largely stuck and that we can’t really improve. Objectively, when you look at someone like Nicolas Sarkozy, he put in a lot of effort to improve the system, and it did not improve substantially. Why? Because there are structural obstacles. Appeals. Fundamental rights like the right to live with your family, the right to asylum, rights that prevent deportations. And then there is also the problem of consular laisser-passer obligations, since most people who are deported need a consular pass in order to be able to be sent back to their country of origin.

Phineas Rueckert: How do you see the next weeks and months of this new government with regard to immigration?

Serge Slama: There are fundamental contradictions in the direction of the current government. For example, we have a health minister who is opposed to the abolition of state medical aid. We have a justice minister coming from the left whose positions are generally quite respectful of fundamental rights. But we have an interior minister who I think, is extreme right, or at least very far right. And then Prime Minister Michel Barnier, who is trying to balance all that. That is the challenge of this government.

“Luckily in France, there are no mass deportations. We don't use trains to carry people away. Foreigners have right to a hearing. We have to do an individual examination of their case.”

Ultimately, the government’s fate is in the hands of the far-right National Rally because if the National Rally wants to bring it down, it could bring it down tomorrow. If the National Rally decides that this government falls, it falls. So it is the National Rally that clearly runs the show. So it's going to pull very, very strongly towards what Retailleau does every day, that is to say push for extremely tough immigration policies, at least rhetorically.

Whether Rétailleau will be able to transform this into statistics is less obvious, but in any case he espouses extremely tough rhetoric on illegal immigration in France, saying things like: “Immigration is not an opportunity for France.” He has said he will consider opening offshore migrant detention centers in third countries. He is going to repeal the Valls Circular, [which made it possible to regularize migrants through other means than work contracts]. Retailleau has said he wants to extend the period of detention. These are old ideas: all of this comes from the 90s, but we are coming back to these ideas. At the same time, these are the same recipes of previous interior ministers — recipes that never worked.

Phineas Rueckert: Why is it that in the last few years, immigration has become such a 'touchy' subject in France? Was there a point when that really started to happen? Or was it rather gradual?

Serge Slama: It happened gradually. On the one hand, the rhetoric does not correspond to the reality of immigration in France at all, i.e. we are not in a situation of migratory tension. We are even in a period in which we have a slight positive net migration but not very significant compared to the 1960s for example, or the 1930s.

So, on the one hand, we have a rise in power of the National Rally, which has filtered through to mainstream discourse, at least on a large part of the right, including the Macronists. Today, Macron’s party has a discourse comparable to the far-right on immigration.

“The only person who seems unaware that our public services are not working is the Interior Minister himself.”

And then, there’s the phenomenon of media that are not doing their jobs. These media are ideological, fake news factories, especially the entire sphere of [media magnate Vincent] Bolloré. We are experiencing the same phenomenon as you are with Fox News in the United States. These media defend ideological positions, campaign for the far-right openly, with a very clear civilizational intent, and, therefore, are ready to do anything to impose their ideas. And they’re succeeding: today, these talking points are omnipresent, including in French public media. They have managed to reverse public opinion on immigration and today immigration is negatively viewed by most French people. It is a very worrying phenomenon, and it is one that is difficult to fight against.

Phineas Rueckert: Is there anything you would like to add that we have not yet discussed?

Serge Slama: There is one aspect that we did not talk about at all because we were talking about OQTFs, but the real problem today is the problem of access to the prefecture and online “dematerialization” visa processing that slows down the whole system. Today, the amount of time waiting to get an appointment at the prefecture is indecent. The dematerialization systems meant to bring this process online and streamline it profoundly do not work.

As an immigration lawyer, I am immersed in it. It's hell. Our public service is extremely degraded and the whole world knows it. The only person who seems unaware that our public services are not working is the Minister of the Interior in France himself.

The number of messages that I receive all the time from colleagues around the world who do not understand how you can have such a dysfunctional public service that makes access to the prefecture impossible is huge. These irregularities are produced by the administration, which simply does not work.

At the same time, you have to recognize that only one country is worse: the United States.