Reference Decision: cc • No. 78-90.396 • 1979-02-20 • View the decision →
Imagine you are a property owner in Saint-Paul-lès-Dax, in a quiet residence near Lac de Christus. You have let your flat to a foreign tenant, everything is in order, until the day you learn that they are subject to an expulsion order (an administrative measure ordering forced departure from the territory). The police arrive to execute this decision, but the tenant is not there. What can they do? Can they wait for them? Detain them if they arrive?
This situation, although specific, touches on fundamental questions: how far do the authorities' powers go to execute an expulsion? What are the rights of the person concerned? And above all, as a property owner, what are your responsibilities and remedies?
The Court of Cassation (the supreme court that checks the correct application of the law by lower courts) answered these questions in a decision of 20 February 1979. This case law (the body of judicial decisions that interpret the law), over 40 years old, remains surprisingly current, especially in a context where migration issues are at the heart of current affairs. But what exactly does this change for you, a property owner in the Landes or elsewhere?
The Facts: A Story That Happens Every Day
Let's go back to 1978. Mr. Karim, an Algerian national, has been living in France for several years. He occupies accommodation in a small provincial town, similar to Biscarrosse with its lively market and residential neighbourhoods. The administrative authorities (prefecture, police) have issued an expulsion order against him, considering that his presence on French territory constitutes a threat to public order.
On the day scheduled for the execution of this order, law enforcement officers (police, gendarmes) go to his home. But Mr. Karim is not present. They decide to wait for him, and when he arrives, they detain him on the spot for the time necessary to organise his forced departure. This detention (the act of keeping a person against their will) lasts a few hours, strictly the time needed to contact the competent services and proceed with his effective expulsion.
Mr. Karim challenges this detention. He considers it illegal, that it constitutes an arbitrary arrest (detention without valid legal grounds). He brings legal action, arguing that the officers exceeded their powers. The case goes up through the judicial levels, all the way to the Court of Cassation. The debate is crucial: in the absence of clear legislation, can officers temporarily detain a foreign national subject to an expulsion order to ensure its execution?
undefined, I have encountered cases where property owners, in Mont-de-Marsan or the surrounding area, found themselves indirectly involved in such situations. Their foreign tenant being subject to an expulsion procedure, they had to manage access to the accommodation, interventions by law enforcement, and sometimes the consequences on the lease agreement. A real administrative and legal turmoil.
The Court's Reasoning — Analysed
The Court of Cassation had to resolve a complex dilemma. On one hand, the effective execution of expulsion orders, which falls under public security. On the other, respect for individual freedoms, notably the freedom of movement, protected by the Constitution and the European Convention on Human Rights.
The judges relied on Article 25 of the Ordinance of 2 November 1945 relating to the conditions of entry and stay of foreign nationals in France. This text provides that, in case of absolute urgency (an exceptional and immediate situation requiring rapid action to avoid serious danger), officers responsible for executing an expulsion order may take special measures. But it does not specify which ones.
The Court interpreted this article extensively (by broadening its scope of application). It considered that, in the case of absolute urgency, officers are necessarily authorised to ensure, for the strictly necessary time, the presence of the foreign national subject to such a measure. In other words, they can detain them temporarily, without a specific arrest warrant, to guarantee that the expulsion will indeed take place.
In short, the Court created an exception to the general principle that any deprivation of liberty must be authorised by a judge. It considered that absolute urgency justifies this derogation, provided that the detention is limited in time and proportionate to the aim pursued. However, be careful: this exception is strictly framed. It only applies to expulsions, and only in case of absolute urgency, a notion that lower courts (first instance tribunals and courts of appeal) assess on a case-by-case basis.
The Court also specified that the provisions of Article 120 of the Penal Code (old, now repealed) are applicable. This article penalised arbitrary arrest, detention, or sequestration. By mentioning it, the Court reminds that any detention that exceeds the defined framework (absolute urgency, strictly necessary time) would be illegal and could engage the criminal liability of the officers.
What This Changes for You — Practically
If you are a landlord (a person who lets a property), this decision has indirect but important implications. Imagine you let a villa in Biscarrosse, near the lake, to a foreign tenant. If that tenant is subject to an expulsion order and law enforcement intervenes, they may, in case of absolute urgency, detain them temporarily on the spot. You must then facilitate their access to the accommodation, subject to respecting the rules of domicile (inviolability of the home).
Practically, this means you might witness such a scene. In that case, stay calm, do not intervene, and note the circumstances: time of the officers' arrival, duration of the detention, behaviour of the parties. These elements could be useful in case of subsequent dispute over the legality of the procedure. If the detention seems excessive (several hours without justification), you can contact a solicitor. The cost of a consultation, around €100-150, is often worthwhile to avoid complications.
If you are a foreign tenant, this decision concerns you directly. It reminds that, faced with an expulsion order, the authorities have extensive powers in case of absolute urgency. But it also sets limits: the detention must be brief and justified. If you believe your rights are violated (prolonged detention without grounds of urgency), you can apply to the urgent applications judge (a judge who rules quickly in case of urgency) to request your release and, possibly, damages. The deadlines are short: often a few days.
For real estate professionals (agencies, managing agents), this case law implies raising property owners' awareness of the risks related to letting to foreign nationals in irregular situations. An expelled tenant may leave a property vacant, with unpaid rent. Recovery and refurbishment costs can quickly reach €2,000 to €5,000. It is better to scrupulously check residence documents when signing the lease.
Four Tips to Avoid This Type of Dispute
- Systematically Check Residence Permits: Before letting to a non-European foreign national, require and photocopy their residence permit (residence card, long-stay visa). Check its validity on the administration's website. In Mont-de-Marsan, I have seen property owners neglect this step and end up with unpaid rent after the tenant's expulsion.
- Include a Termination Clause in Case of Expulsion: In the lease agreement, provide a clause authorising immediate termination if the tenant is subject to a definitive expulsion order. This will allow you to quickly recover the property without a lengthy procedure.
- Document Law Enforcement Interventions: If the authorities present themselves for an expulsion, note in writing the date, time, names of the officers, duration of the intervention, and take photos if possible. This written record could serve in case of challenge.
- Consult a Solicitor at the First Signs: If your tenant informs you of an expulsion procedure, or if you receive a letter from the authorities, do not delay. A quick consultation (€45 for 30 minutes with me) can help you anticipate problems and protect your interests.
Further Reading: Related Case Law and Developments
This 1979 decision fits into a consistent line of case law. Already in the 1950s, tribunals admitted that the execution of expulsions could justify coercive measures in case of urgency. But it was the Court of Cassation that formalised and specified this principle, explicitly linking it to the notion of absolute urgency.
Since then, other decisions have confirmed and refined this approach. For example, in a 2005 ruling, the Court recalled that temporary detention must be proportionate and cannot exceed the time necessary for the material organisation of the expulsion. It also emphasised that absolute urgency cannot be invoked automatically; it must be demonstrated concretely by the authorities.
What few people know is that this case law has influenced the legislator. Today, the Code on the Entry and Stay of Foreign Nationals and the Right of Asylum (CESEDA) provides specific procedures for expulsions, with reinforced safeguards. But the principle established in 1979 remains valid: in case of urgency, the authorities can act quickly, under subsequent judicial control.
For the future, the trend is towards stricter framing of measures depriving liberty, under the influence of European law. Judges are increasingly scrupulously checking the conditions of absolute urgency. This means that, for property owners, the risks of disputes related to contested expulsions could increase. Hence the importance of staying informed and properly documenting each situation.
Key Points to Remember
- Absolute Urgency Justifies Temporary Detention: In case of absolute urgency, officers can detain a foreign national subject to an expulsion order, but only for the strictly necessary time.
- Strict Limits: This detention must be proportionate and not degenerate into arbitrary detention. Otherwise, the officers engage their criminal liability.
- Consequences for Property Owners: Facilitate law enforcement access, but document everything. An expulsion can lead to unpaid rent and vacant properties.
- Recommended Action: Check residence permits before letting, and consult a solicitor as soon as an expulsion procedure is mentioned.
- Legal Evolution: Case law reinforces controls on absolute urgency. Stay vigilant and adapt your practices.
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