The case concerned the placement of 234 persons disembarked from the Ocean Viking in Toulon (France) in a temporary waiting area. The National Border Assistance Association for Foreigners (FINTRAC) requested the judge for interim measures of the Administrative Court of Toulon the following:
- To suspend the execution of the order of 10 November 2022 by which the Prefect of Var created a temporary waiting area at the Toulon naval base and on the village of Vacances CCAS EDF in Hyères;
- To order the prefect of Var to end the deprivation of liberty of all persons in this area, and, on the other hand, the Prefect of Var and the French Office for Immigration and Integration (OFII) to direct the persons to an adequate place of accommodation taking into account their age, family composition and state of health;
- To order the Minister of the Interior, the Minister of armed forces and the prefect of Var to ensure the full exercise of the rights of these persons and immediate access of the applicant association and other local associations to the waiting area;
- To order the Prefect of the Alpes-Maritimes to register asylum applications submitted by persons within three days.
On 15 November 2022, the judge hearing the application for interim measures at the Toulon Administrative Court rejected the application. ANAFE challenged this ordinance before the Council of State, contesting the conditions for the creation of the waiting area by the prefect of Var.
On 19 November 2022, the Council of State dismissed the request. The judge noted the exceptional circumstances in which the reception had to be organised (large number of people, need for urgent medical care, public order considerations) on the basis of legal provisions applicable in the event of the arrival of a group of people outside a "border crossing zone".
The judge noted that asylum applications at the border were examined by the French Office for the Protection of Refugees and Stateless Persons (OFPRA), which was able to conduct the interviews legally required, with 66 people being authorized to enter the territory to lodge their asylum application. In addition, the judge of freedoms and detention and then the Aix-en-Provence Court of Appeal examined the placement in the area of these persons and the extension of continued detention was not authorised for the vast majority of those concerned. The judge noted that with the exception of the few hours during which the persons were present on the military base, the applicant association was able to access the holiday village without hindrance and that on the date of the decision, associations and lawyers could access the waiting area and carry out their mission under conditions which do not call for urgent action. If the persistence of difficulties could be pointed out at the hearing, they were not of such seriousness that they would require the intervention of the judge. Thus, on the date of the order, in the absence of a serious and manifestly illegal infringement of a fundamental freedom, the judge found that there was no reason to pronounce urgent measures.