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France: Whether a holder of a foreign resident card in France may renew his/her card or re-enter France after being absent from French territory for a period of more than three consecutive years (follow-up to FRA37281.F of 25 May 2001)

On 30 May 2001, a representative of the Embassy of France in Ottawa sent the Research Directorate the following information, provided by the Office français de protection des réfugiés et apatrides:

[translation]

The Research Directorate of the Immigration and Refugee Board in Canada inquired whether a foreigner, who holds a 10-year residence card in France valid until 2003 and who has apparently been absent from the national territory for three consecutive years, may return to France.

Article 18 of Ordinance No. 45-2658 of 2 November 1945, as amended, pertaining to the conditions governing the entry and stay of foreigners in France, provides the following: “The residence card of a foreigner who has been absent from French territory for a period of more than three consecutive years shall be voided.”

According to the decision of the Conseil d'État (CE, 10 May 1995, Ministre délégué auprès du Ministre de l'Intérieur c/ Mlle Yémis Tokatli), these provisions apply only to foreigners holding residence cards.

“The instant case involved a young girl who entered France under the family reunification program and who therefore was entitled, as of right, to a residence card upon reaching the age of majority. The court found that she could not be denied the renewal of her card on the ground that she had apparently left the national territory for more than three years while she was still a minor.”

However, it should be pointed out that it is possible for the provisions of article 18, supra, not to apply when the applicant's absence from the national territory is not continuous.

“Indeed, in the CE decision of 27 September 1996, the Haute juridiction did not find that Mr. Aghris had left French territory for more than three years; although the applicant had lived for three and a half years in his country of origin in order to get his children settled, he regularly returned to France during this period, continued to receive income that he reported to the tax authority and remained a regular taxpayer in France.

Moreover, the Tribunal administratif de Paris took into consideration the fact that the applicant had regularly returned to France during the three years in question in order to ensure that his stay document would be renewed” (TA Paris, 21 November 1997, Mr. Traoré).

Nevertheless, article 18, paragraph 2, of the above-cited ordinance states

– the prefect of the foreign national's usual place of residence, before his departure from France or during his stay abroad; or

– the French consular authorities abroad, who will send the application for decision to the prefect of the place of residence in France.

The prefect will determine whether the reasons given justify the requested extension. The circular of 2 August 1989 provides, inter alia, for cases involving hospitalization, the performance of military service, professional or family reasons and even certain events that may arise during the applicant's absence. The extension of the deadline may not exceed the remaining period of validity of the residence card.

Certain circumstances, assessed by the trial judges, may nullify the limitation period of the residence card:

– The Tribunal administratif de Versailles found that an incidence of force majeure had exempted the applicant from the limitation period of his stay document, even though he had been absent from the national territory for four years, since he had been imprisoned abroad during his vacation (TA Versailles, 6 April 1995, M. Hamady c/ Préfet de l'Essonne).

– The Clermont-Ferrand trial judges found that the confinement of a young woman by her husband in her country of origin was an incidence of force majeure, despite the fact that she had not applied for the extension of the deadline beforehand (TA Clermont-Ferrand, 15 July 1997, Ms. Saadia Askoute).

– “However, an employee posted abroad by his employer for more than three consecutive years, who extended his stay for personal reasons, could not receive an exemption” (CE, 2 December 1996, Mr. Ettalbi).

Upon his return, as soon as the provisions of article 18, supra, are applied, the applicant is considered a new immigrant. It is within the jurisdiction of the prefecture to withdraw his residence card (article 5, paragraph 3, 3° of the decree of 30 June 1946).

The applicant may file a new application for a stay document and obtain a new residence card if he meets the conditions to obtain it as of right. Failing this, according to article 12 of the above-cited ordinance, a temporary residence card may be issued to him if he provides proof that he can support himself and undertakes not to exercise any professional activity in France that requires authorization.

This Response was prepared after researching publicly accessible information currently available to the Research Directorate within time constraints. This Response is not, and does not purport to be, conclusive as to the merit of any particular claim to refugee status or asylum.

Reference

France. 30 May 2001. Embassy of France, Ottawa. Correspondence.