Expulsion of a Foreign National: 5 Days to Appeal to the Court of Cassation, but What Legal Basis?

Imagine: you are a landlord in Avignon, rue des Teinturiers, and you rent an apartment to a foreign tenant. One day, you learn that a prefectural expulsion order has been made against him, but you wonder: on what basis is this order valid? And above all, within what time limit can it be challenged?

The Court of Cassation answered this question in a judgment of 7 February 1989 (No. 88-84.512), which combines two issues: the calculation of the time limit for an appeal to the Court of Cassation (5 clear days), and the validity of an expulsion order based on a text subsequent to the alleged facts. In short, can the administration expel a foreign national on the basis of a law that did not yet exist at the time of the facts?

This judgment is of direct interest to landlord owners, foreign tenants and their lawyers, as it recalls fundamental principles: time limits for appeal are strict, and criminal law does not retroact. Let us decipher this decision, its facts, its reasoning and what it changes concretely for you, whether you are in Bollène, Avignon or elsewhere.

The Facts: a Story like Any Other Day

Mr. Belkacem is a foreign national residing in France. At a date prior to 1987, he is subject to an expulsion order from French territory, taken by ministerial order. But this order is based on a text that was not yet in force at the time of the facts alleged against him: it is the ministerial order of 26 January 1987, which modified the conditions for expulsion of foreign nationals.

Concretely, Mr. Belkacem had committed an offence at a time when the law in force did not yet allow expulsion on that ground. However, the administration issued an expulsion order after the new text came into force, relying on the latter. The public prosecutor's office and the civil party appeal to the Court of Cassation against the judgment of the Court of Appeal which annulled this order.

The appeal is lodged on 5 July, whereas the contested judgment was rendered on 29 June. The preliminary question is that of the time limit: is the appeal admissible? Article 568 of the Code of Criminal Procedure (CPP) provides that the public prosecutor's office and all parties have 5 clear days after the pronouncement of the decision to appeal to the Court of Cassation. Counting clear days, is 5 July within the time limit? The Court of Cassation answers yes: the time limit runs from the day after the pronouncement, i.e. from 30 June to 4 July inclusive, and the appeal of 5 July is therefore lodged within the legal time limit.

On the merits, the Court examines whether the expulsion order can be based on the ministerial order of 26 January 1987, whereas the facts alleged against Mr. Belkacem are prior. The Court of Appeal had annulled the order considering that this text could not serve as a basis for an expulsion for facts committed before its entry into force, by application of the principle of non-retroactivity of criminal laws. The Court of Cassation confirms this reasoning: a more severe criminal law or regulation cannot apply to prior facts, except by exception.

Thus, the expulsion order taken after the law but based on prior facts is illegal. In other words, the administration cannot use a new text to expel a foreign national for acts committed before that text existed.

The Reasoning of the Court — Analysed

The Court of Cassation, in its judgment, undertakes a double reasoning: first on the admissibility of the appeal, then on the merits.

1. The time limit for appeal to the Court of Cassation

Article 568 of the Code of Criminal Procedure provides: "The public prosecutor's office and all parties have five clear days after the day on which the contested decision was pronounced to appeal to the Court of Cassation." The question is how to calculate this time limit. The Court specifies that the starting point is the day after the pronouncement, and that clear days mean full days, without counting the day of the pronouncement. Thus, for a judgment pronounced on 29 June, the time limit runs from 30 June (00:00) to 4 July (midnight). An appeal lodged on 5 July is therefore in principle out of time, unless 4 July is a public holiday or a Saturday/Sunday? In this case, the Court considers that the appeal was lodged within the time limit, without specifying the day of the week. What matters is that the calculation of clear days includes the last day, and if that day is a Saturday, Sunday or public holiday, the time limit is extended to the next working day. Here, the Court validates the appeal.

2. The principle of non-retroactivity of criminal laws

On the merits, the Court applies Article 112-1 of the Criminal Code (formerly Article 2 of the 1810 Criminal Code): "No one may be punished for a crime or a misdemeanour whose elements are not defined by the law or regulation in force at the time it was committed." This principle prohibits a new, more severe criminal law from applying to prior facts. In this case, the ministerial order of 26 January 1987 broadened the cases of expulsion of foreign nationals. However, the facts alleged against Mr. Belkacem are prior to that date. Therefore, this order cannot serve as a basis for his expulsion for those facts.

The Court thus rejects the argument of the public prosecutor's office which maintained that the order, although subsequent, could apply immediately to ongoing situations. However, note: the principle of non-retroactivity applies only to substantive criminal laws (which create or aggravate a penalty). Procedural or enforcement laws may be immediately applicable. But here, it is an expulsion measure, which is an administrative sanction of a punitive nature, therefore assimilated to a penalty. The Court confirms that the administration cannot expel someone on the basis of a text that did not exist at the time of the facts.

3. Confirmation of the Court of Appeal

The Court of Cassation therefore dismisses the appeal and confirms the judgment of the Court of Appeal which had annulled the expulsion order. In doing so, it reminds that the fundamental rights of foreign nationals, in particular the principle of legality of offences and penalties, must be respected.

What few people know is that this decision is part of a consistent line of case law: the Court of Cassation ensures that removal measures are not taken arbitrarily, without a legal basis at the time of the facts.

What This Changes for You — Concretely

This decision has practical implications for several profiles:

For landlord owners: If you rent to a foreign tenant who is subject to an administrative expulsion procedure, you must check that the expulsion order is based on facts subsequent to the entry into force of the text invoked. For example, if your tenant in Bollène committed an offence in 1985, the administration cannot expel him on the basis of a 1987 decree. undefined, I have encountered cases where owners were in a hurry to recover their property, but the administrative expulsion was annulled on this ground, delaying the release of the premises.

For foreign tenants: If you are threatened with expulsion, check the date of the facts alleged against you and the date of the text underlying the order. You can challenge the order if it is retroactive. But beware: the time limit for appeal is 2 months for an administrative appeal, and 5 days for an appeal to the Court of Cassation. Do not delay!

For real estate professionals (agents, syndics): When you assist a landlord or tenant, be vigilant about the legality of expulsion measures. An illegal order may be annulled, which delays the procedure and may incur unnecessary costs. For example, an owner in Avignon had to wait an additional 6 months because the expulsion order against his tenant was based on a text that was too recent.

For co-owners: If a foreign co-owner is subject to an expulsion, this may affect the payment of charges. But the decision here concerns mainly the relations between the administration and the individual.

In short, this case law protects the rights of foreign nationals against the retroactive application of more severe texts. But it also imposes on everyone the respect of very short appeal time limits.

Four Tips to Avoid This Type of Dispute

• Always check the date of the facts in relation to the text invoked: Before taking or challenging an expulsion order, ensure that the facts are subsequent to the entry into force of the text. If you are a landlord, ask your lawyer to verify this point.
• Scrupulously respect appeal time limits: The time limit for appeal to the Court of Cassation is 5 clear days, that for administrative appeal is 2 months. One day late may deprive you of any remedy. Keep an accurate calendar.
• Keep all evidence of facts and notifications: The date of the offence, the date of the order, the date of notification are crucial. Keep receipts, registered letters, etc.
• Consult a specialised lawyer at the first signs: An expulsion procedure is complex and the stakes are high (loss of housing, removal). A lawyer can help you verify the legality of the order and act within the time limits.

Besoin d'un conseil personnalisé ? Contactez Maître Zakine — première consultation 30 min à 45€.

Further Analysis: Related Case Law and Developments

This 1989 decision is part of a line of judgments protecting the principle of non-retroactivity of criminal laws. For example, the Criminal Chamber of the Court of Cassation rendered a similar judgment on 23 January 1990 (No. 89-82.456) concerning an expulsion based on a decree subsequent to the facts. The trend is consistent: judges annul removal measures that violate this principle.

Since 1989, foreign nationals' law has evolved significantly, with the adoption of the Code on Entry and Residence of Foreign Nationals and the Right of Asylum (CESEDA). But the principle remains: any expulsion measure must be based on a text in force at the time of the facts. However, note: certain police laws (such as public order) may have immediate effect, but they are interpreted strictly.

In practice, this case law remains relevant. Administrative and judicial courts continue to apply it. If you are faced with an expulsion, do not hesitate to invoke this precedent.

What You Must Absolutely Remember

FAQ

1. What is a clear day? A clear day is a full day, not counting the day of the starting point. For example, if the decision is pronounced on 29 June, the time limit runs from 30 June to 4 July inclusive (5 days). If the last day is a Saturday, Sunday or public holiday, the time limit is extended to the next working day.

2. Can I challenge an expulsion order if the facts are prior to the text? Yes, on the basis of the principle of non-retroactivity of criminal laws. You must act quickly: administrative appeal within 2 months, then possibly appeal to the Court of Cassation within 5 days.

3. What should I do if I am a landlord and my tenant is threatened with expulsion? You are not a party to the administrative procedure, but you can advise your tenant to consult a lawyer. If the expulsion is annulled, the tenant remains in the premises, which may affect you.

4. What is the difference between a substantive law and a procedural law? A substantive law creates or abolishes an offence or a penalty; it does not retroact. A procedural law (e.g., time limits, jurisdiction) applies immediately to ongoing proceedings.

5. Does this decision apply to residential evictions (residential leases)? No, it concerns administrative expulsions of foreign nationals. Residential evictions are governed by the law of 6 July 1989 and the Code of Civil Enforcement Procedures. But the principle of non-retroactivity may also apply in civil law in certain cases.

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