Would the immigration law have allowed the suspect to be expelled in the past? – Libération

Following the tragedy in Mougins, where a motorist fatally knocked down a police officer on 26 August, the resigning Minister Delegate Aurore Bergé stated on Sunday 1 September, in the programme the big meeting from Europe 1, CNews and the Echoes, that such a tragedy would now be avoidable. “The legislator has acted”she welcomed, referring to the immigration law, proposed by the former presidential majority and voted with the support of the National Rally, aimed at more easily expelling foreigners. According to the resigning minister, because of his criminal record, the driver who killed police officer Eric Comyn could have been forced to leave the country in the past, if the law had been voted earlier.

“There is one fundamental thing that has changed. Considering the background of the person who committed this act, he entered France legally, he entered France when he was 7 years old. Today, because we have changed the law, this famous immigration law that some would like to repeal, well that means that this person could be deportable,” said Aurore Bergé, before continuing: “That means [qu’]before this heinous act, There were a number of petty crimes. These minor offences, before the immigration law, did not allow him to be expelled because he had entered France before he was 13. After the immigration law, the fact that he committed these offences and that these offences were the subject of convictions allows him to be expelled. So that means that the law is useful and that it was necessary to change it.” The minister then clarified that in the case of the Cape Verdean driver from Mougins, the immigration law was not applied. “simply because it came into force after these crimes were committed.”

Contacted by CheckNewsthe office of the resigning minister responsible for equality between women and men and the fight against discrimination explains that it based its decision on the elements transmitted by the Ministry of the Interior: the suspect indicted “is a 39-year-old Cape Verdean individual. He arrived in France legally at the age of 7. He was in a regular situation in France. He was known to the police for crimes (insults, traffic offences, drunk driving, etc.). The law in force, before the immigration law, prohibited us from expelling foreign individuals who committed this type of offence. Only those who had committed crimes or acts of terrorism could be expelled. They were in fact protected by protective measures (parent of a French child, married to a [e] French [e]arrived in France before the age of 13). Thanks to the immigration law, these protective measures have been lifted. This individual is now deportable and will be at the end of his sentence.

“Since the Darmanin law, protection has fallen”

As Serge Slama, professor of public law at the University of Grenoble Alpes, explains, the Ministry of the Interior, in order to remove a foreigner from the territory, can issue an expulsion order or withdraw a person’s residence permit, considering that their presence would constitute a threat to public order, and then issue an obligation to leave French territory (OQTF). But the immigration law has changed certain things.

Before its adoption, in the case of the taking of an expulsion order, the suspect, explains Serge Slama, “was indeed in the protected categories if he had entered before the age of 13, and he could only be expelled in the event of behavior likely to harm the fundamental interests of the State, including the deliberate and particularly serious violation of the principles of the Republic, set out in Article L. 412-7, or linked to terrorist activities, or constituting acts of explicit and deliberate provocation to discrimination, hatred or violence against a specific person or group of people.” Similarly, he could not have been the subject of an OQTF, because he arrived before he was 13 years old.

In the current scenario, where the immigration law is in force, the professor of public law indicates that “since the Darmanin law, protection falls when [l’étranger] has already been the subject of a final conviction for crimes or offences punishable by five years or more of imprisonment or three years for the repetition of crimes or offences punishable by the same penalty”. This is confirmed by Me Christophe Pouly, a lawyer specializing in immigration law and a lecturer at Sciences Po: “Before the law [le suspect de Mougins] was protected. […] But now, he may be subject to an expulsion order on condition that the offence committed is punishable by a prison sentence of 5 years or 3 years in the event of repetition, and that he is finally sentenced (after the extinction of appeals). It is the quantum of the sentence provided for by law that counts and not the sentence handed down.” As the legal site Dalloz reminds us, the repetition does not match “to the commission of the same offence, or of offences assimilated with regard to the repeat offence, but to the commission of any other offence”.

Immigration law applies retroactively

Provided that the seriousness conditions set out above were met, road traffic offences and other convicted acts of violence could have made expulsion possible. But according to Serge Slama, “We need to know what sentence he faced when he was convicted,” to be affirmative. And even if the suspect has been the subject of such convictions in the past, adds the professor of public law at the University of Rouen Vincent Tchen, “it would be necessary to justify a “serious threat to public order” (CESEDA, L631-1)” et “given the current state of practice, we can debate it”.

The Grasse public prosecutor’s office has not communicated to CheckNews the details of each of the ten convictions which appeared on the criminal record of the Cape Verdean indicted for “murder of a person in a position of public authority”. The prosecutor’s office only states that “six concern traffic violations” and the other four are “attacks on people”. The only detailed conviction is the last one he received, in May 2018, which concerns facts of “driving a vehicle while intoxicated and under the influence of drugs”. According to Article L235-1 of the Highway Code, the maximum penalties for this offence are three years’ imprisonment and a fine of 9,000 euros.

If Aurore Bergé is therefore potentially right, she is however wrong when she states that the immigration law could not be applied (concerning the person responsible for the death of the police officer) “because it came into force after these offences (the 10 convictions) have been committed. Christophe Pouly and Vincent Tchen specify, on the contrary, that the immigration law applies retroactively. “Unlike criminal law, in administrative matters, prior facts (or prior convictions) can be taken into account before the law came into force, because expulsion is not a penalty but an administrative police measure,” notes Christophe Pouly. Contrary to what Aurore Bergé claims, if the reckless driver’s previous convictions met the criteria of seriousness (maximum prison sentence of 5 years or 3 years in reiteration) provided for by the new law, he could have been deported since the beginning of the year. It does not matter that these convictions were handed down before the promulgation of the law.

Serge Slama recalls that this is also the spirit of the Darmanin circular of February 5, 2024, which asked the prefects “a complete re-examination of all individual situations of foreigners, brought to the attention of your services, whose behavior constitutes a serious threat to public order, which the law makes eligible for an expulsion measure or OQTF.” According to the information transmitted by Place Beauvau to the Minister for Equality between Women and Men, the ministry announced its intention to expel the accused, if he is convicted, “at the end of his sentence.” Here again, according to Vincent Tchen, it is the immigration law that should allow the expulsion of the suspect. In the event of a conviction, the criminal judge could add a sanction of judicial ban from the territory in addition to the main sentence.