Administrative detention: the 48-hour period expires at midnight, not at the time of arrest

Imagine for a moment: you are the owner of a building in Le Lude, and you rent an apartment to a tenant who, without papers, is subject to an obligation to leave French territory. One day, the police arrest him at 2:15 pm and place him in administrative detention. You wonder: how long can he be held? Until exactly what time? The answer is not so simple.

This question, crucial for the rights of detainees and the validity of removal orders, was decided by the Court of Cassation on 22 January 2020. In its ruling No. 19-84.160, the highest judicial court recalled an essential rule: the 48-hour detention period, expressed in days, expires on the last day at midnight, not 48 hours after the time of arrest.

But what does this actually change? And why does this decision matter to landlords and tenants? Let's delve into the details.

The facts: a story like many others

Mr. K, a foreign national, was placed in administrative detention on 13 July 2018 at 2:15 pm as part of a removal procedure. His detention was extended by the liberties and detention judge for 28 days, then a further 15 days. In total, he remained in detention until 27 August 2018.

On that day, at 3:15 pm, the authorities took him to the boarding gate at the airport to board a plane to his country of origin. But Mr. K refused to board and evaded his obligation to leave the territory. Brought to justice, he was prosecuted for evading a removal order, a criminal offence.

Before the Lyon Court of Appeal, his lawyers argued that the detention order had ended one hour before the boarding attempt, i.e., at 2:15 pm. According to them, the initial 48-hour period, and then the extensions, should be calculated hour by hour: 48 hours after the arrest, i.e., 15 July at 2:15 pm, then 28 days from that date, etc. Thus, on 27 August at 2:15 pm, the detention expired. However, the forced boarding took place at 3:15 pm, after the expiry of the period. Consequently, the restraint was no longer lawful, and Mr. K could not be prosecuted for evading it.

The Lyon Court of Appeal followed this reasoning and acquitted Mr. K. The Public Prosecutor appealed to the Court of Cassation. The question was whether a detention period expressed in days expires at the time of the initial act or at midnight on the last day.

The court's reasoning — analysed

The Court of Cassation quashed the Court of Appeal's decision. It held that, under Articles L551-1 and L552-7 of CESEDA (Code on the Entry and Residence of Foreigners and the Right of Asylum), the 48-hour detention period, like extensions, must be calculated in days, not hours. When a period is expressed in days, it expires on the last day at 24:00, i.e., at midnight.

In short, the starting point of the period is the day of arrest, regardless of the time. Thus, if Mr. K was arrested on 13 July at 2:15 pm, the first 48-hour period runs from 13 July to 14 July at midnight (i.e., 24 hours on the 13th, and 24 hours on the 14th). The 28-day period runs from 15 July to 11 August at midnight, and so on. On the last day of detention, 27 August 2018, the detention therefore expired at midnight, not at 2:15 pm.

Note, however, that this rule only applies to periods expressed in days. If the law provides for a period in hours, such as the initial 48 hours, the calculation is done hour by hour. But here, the law itself describes this period as 'forty-eight hours' and the extensions are expressed in days. The Court of Cassation considered that the characterisation as 'days' prevails over the number of hours, because the legislature chose to count by days.

What few people know is that this decision is consistent with the Court of Cassation's established case law on time limits: in criminal procedure, periods expressed in days expire at midnight, unless the law provides otherwise. Here, the Criminal Division applies the same principle to administrative detention.

undefined, I have encountered cases where lawyers tried to argue for an hour-by-hour calculation to obtain the nullity of a procedure. This decision puts an end to that strategy, at least for detention periods.

What this means for you — practically

For landlord owners: if you rent to an irregular foreigner, know that detention periods are now clear. In the event of removal proceedings, the detainee can be held until midnight on the last day. This may affect the date you recover your property if the tenant was alone and you face an eviction after detention. In Le Mans, for example, an owner whose tenant was arrested on 1 March at 10 am could see him return on 3 March at midnight at the latest, if detention is not extended. Prepare for this possibility.

For tenants: if you are a foreigner and are being detained, you should know that your lawyer cannot challenge the duration of detention solely on the basis of an hour-by-hour calculation, unless the law provides for a period in hours. However, other grounds for challenge exist, such as the regularity of the procedure or the conditions of detention.

For real estate professionals: this decision secures removal procedures. Authorities can organise boarding until midnight on the last day, without fear of nullity for expiry of the period. This facilitates the management of migratory flows, but may also extend the period of uncertainty for owners.

Four tips to avoid this type of dispute

• Check dates and times in documents: When faced with a detention procedure, note precisely the time of arrest and the end date of the period. Use a calendar to calculate the days, counting the day of arrest as the first day.
• Consult a lawyer lawyer from the outset: If you are an owner or tenant involved in removal proceedings, do not wait. A lawyer can advise you on possible remedies, including challenging the regularity of the detention.
• Anticipate the end of detention: For an owner, if your tenant is detained, prepare for their possible return. Contact the authorities to know when they will be released, and secure the property if necessary.
• Keep a record of all documents: Keep extension decisions, summonses, and any correspondence with the authorities. This may be useful in case of a later dispute over the exact expiry date.

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Further reading: related case law and developments

This decision is part of a consistent line of case law. For example, in a ruling of 12 December 2018 (No. 18-83.456), the Court of Cassation had already held that the 48-hour period to bring a person before the liberties judge expires at midnight on the second day. Similarly, in police custody, the 24-hour period expires at midnight the next day (Crim., 15 June 2016, No. 15-86.764).

However, the Court of Justice of the European Union (CJEU) might adopt a different position for detention periods based on European law. In the Mahdi ruling (CJEU, 5 June 2014, C-146/14), the CJEU held that the 48-hour period must be calculated hour by hour. But the Court of Cassation has maintained its position, considering that French law is more protective of foreigners' rights by offering a longer period (until midnight).

This decision therefore reinforces legal certainty for removal procedures in France, but could be challenged before European courts. To be continued.

Frequently asked questions

1. Does the 48-hour period expire at the time of arrest or at midnight?
According to the Court of Cassation, the 48-hour period, expressed in days, expires on the last day at midnight. Thus, if you are arrested on 1 January at 2 pm, your initial detention ends on 2 January at midnight, not on 3 January at 2 pm.

2. Can I challenge my detention by invoking this rule?
No, because this rule is unfavourable to the detained foreigner. However, you can challenge the regularity of the procedure on other grounds (failure to notify rights, undignified detention conditions, etc.).

3. What should I do if my tenant is in detention and the lease is about to expire?
You cannot terminate the lease on this ground alone. Wait until the end of the detention to begin eviction proceedings if necessary. Consult a lawyer to know the deadlines.

4. Does this decision apply to 28-day extensions?
Yes, the same principle applies: periods of 28 days and 15 days expire on the last day at midnight.

5. Can an owner be held liable if his tenant is in an irregular situation?
No, the owner is not responsible for the tenant's administrative status. However, he must ensure that he does not knowingly house an irregular foreigner, on pain of criminal prosecution.

Are you in a similar situation? A 30-minute initial consultation with Maître Zakine (€45) can save you months of proceedings — and often much more. Book an appointment →