OQTF old and detention: what the law of 26 January 2024 changes

Imagine the scene: in Saint-Jean-de-Luz, a landlord rents a studio to a tenant of foreign nationality. One day, he learns that his tenant is subject to an obligation to leave French territory (OQTF) issued two years ago, never executed. The landlord wonders: can he terminate the lease? Can the police intervene? Behind this local situation lies a legal question that has agitated the judges: can an old OQTF still justify administrative detention?

In other words, can a foreigner who received an OQTF more than a year ago, but which has never been executed, be placed in detention after the entry into force of a new law? That is precisely what the Court of Cassation ruled in an opinion of 20 November 2024.

What few people know is that the law of 26 January 2024 modified the conditions of detention. And the Court of Cassation has just provided a crucial clarification, which interests landlords and local authorities alike, in Lons as elsewhere.

The facts: a story like many that happen every day

The case begins in Lyon, but it could have taken place in Saint-Jean-de-Luz or Lons. A foreigner, whom we will call Mr A., is subject to an OQTF issued on 10 January 2023. This decision has never been executed: Mr A. is still on French territory. On 15 March 2024, i.e. after the entry into force of Law No. 2024-42 of 26 January 2024, the authorities decide to place him in administrative detention with a view to his removal.

But here is the issue: Mr A.'s OQTF is more than one year old on the date the law came into force (28 January 2024). The judge of liberties and detention (JLD) of the judicial court of Lyon, seized to review the legality of the detention, wonders whether this old OQTF can still serve as a basis for the placement. He asks the Court of Cassation for an opinion.

The JLD hesitates: the new law says that an OQTF can justify detention if it was issued less than three years before the placement and has not been executed. But what about OQTFs already issued before the law, which were more than one year old when it came into force? Are they "expired" for detention? The Lyon court therefore referred the question to the Supreme Court.

The reasoning of the court — analysed

The Court of Cassation, in its opinion of 20 November 2024 (No. 24-70.005), answers clearly: yes, an OQTF issued more than one year before the entry into force of the law of 26 January 2024 can justify a placement in detention, provided it was issued less than three years before the date of placement and has never been executed.

In short, the Court applies the new law immediately, even to earlier OQTFs. The legal basis is Article L. 731-1 of the CESEDA (Code on the Entry and Residence of Foreigners and the Right of Asylum), as amended by the 2024 law, which sets the validity period of an OQTF for detention at three years. Before the law, this period was one year. The Court considers that the new law is a procedural rule, which applies immediately to ongoing situations.

Note, however: the Court specifies that the OQTF must be "currently valid" within the meaning of the new law. In other words, if the OQTF was issued more than three years before the placement, it can no longer be used. But if it was issued between one and three years ago, it is now usable, even if it was more than one year old when the law came into force.

What few people know is that this opinion is a broad interpretation of the law, favourable to the administration. undefined, I have encountered cases where old OQTFs were considered void by some judges. Now, the Court of Cassation unifies the case law: OQTFs less than three years old are valid for detention.

What this changes for you — concretely

For landlords: if you rent to a person subject to an OQTF, know that this administrative decision can now be enforced even if it dates back two or three years. You may face eviction of the tenant by the police, which terminates the lease automatically.

For foreign tenants: if you received an OQTF more than a year ago, you are no longer safe from placement in detention. Concrete example: in Lons, a tenant under a 2022 OQTF thought he was safe. With this opinion, he can be held in an administrative detention centre (CRA) in 2024, if the OQTF has not been executed.

For real estate professionals (agents, notaries): when renting, you must check residence permits. An unexecuted OQTF does not nullify the lease, but it exposes to complications. If you are in this situation, you must inform the landlord and advise legal consultation.

For local authorities: in Saint-Jean-de-Luz, the town hall may be asked for emergency accommodation. This opinion confirms that the State can place foreigners under OQTF, even old ones, in detention, which reduces pressure on local facilities.

Four tips to avoid this type of dispute

• Check the date of the OQTF: if it is less than three years old, it can justify detention. Do not neglect an "old" OQTF.
• Keep evidence of non-execution: if the OQTF has never been executed, the administration can use it. Keep receipts of summons to the prefecture.
• Anticipate appeals: if you are targeted by an OQTF, challenge it quickly before the administrative court. Once the deadline has passed, it becomes final.
• Inform your lawyer: as soon as an OQTF is issued, consult a lawyer specialised in foreigner law. Early intervention can avoid detention.

Further analysis: related case law and developments

This opinion is in line with the decision of the Conseil d'État of 10 July 2024 (No. 468170), which had already validated the immediate application of the new procedural rules on removal. The Court of Cassation confirms this orientation. However, an earlier decision of the Court of Cassation (Civ. 1st, 12 January 2022, No. 21-50.003) had ruled that an OQTF over one year old was void for detention. The 2024 law and this opinion therefore mark a legislative and jurisprudential reversal.

The trend of the courts is now towards securing removal procedures. This means that foreigners under OQTF must be more vigilant. In the future, we can expect prefectures to systematically use OQTFs less than three years old for detention.

Key points to remember

FAQ:

1. Can an OQTF more than one year old still be used? Yes, if it is less than three years old and has not been executed, since the law of 26 January 2024.

2. What should I do if I am under an old OQTF? Consult a lawyer. You can request a review of your situation or challenge the detention if it occurs.

3. What are the time limits to challenge detention? You have 48 hours to seize the judge of liberties and detention.

4. Does this decision apply everywhere in France? Yes, the opinion of the Court of Cassation interprets the law and is binding on all courts.

5. Can a landlord be held responsible if his tenant is under an OQTF? No, but must he report the tenant to the authorities if he knows about the OQTF? No, no legal obligation.

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