On 10 March 2025, the French Council of State referred a priority question of constitutionality (QPC) to the Constitutional Council, following a submission by the association Groupe d'information et de soutien des immigrés (GISTI) and others, challenging the constitutionality of Article L. 523-1 of the Code on the Entry and Stay of Foreigners and the Right of Asylum (CESEDA), as amended by Law No 2024-42 of 26 January 2024. The contested provision allowed competent administrative authorities to place asylum seekers in detention when their behavior constituted a threat to public order or there was a risk of absconding. The provision could be applied even in the absence of a pending removal procedure.  

The applicants argued that these provisions breached various constitutional rights. First, they claimed that detaining asylum seekers outside of a removal procedure, based on a vague notion of “threat to public order” or a presumed “risk of absconding”, violated the right to individual liberty enshrined in Article 66 of the Constitution. They held that such a measure would not be justified by any objective of constitutional value and, in any case, would not be appropriate or proportionate to such an objective. Second, they contended that since placing an asylum seeker under detention would limit the effective exercise of their rights, the contested provisions also infringed the constitutional right to asylum. Third, they claimed that the provisions were in breach of the principle of equality before the law, as they gave ground for asylum seekers to be subjected to the same measures as foreigners subject to an expulsion order on the basis of a vague threat to public order.  

In its reasoning on the merits, the Constitutional Council recalled that, while the Constitution does not afford foreigners an absolute right to access and reside on French territory, the prevention of breaches of public order must be reconciled with respect for the rights and freedoms of all people residing in France, including foreigners. Thus, any restriction on their liberty must be appropriate, necessary and proportionate to the objectives pursued. Upon reviewing the preparatory works for the contested provision, the council observed that the legislator's objective had been to prevent irregular migrants from using asylum procedures to shield themselves from a removal from French territory.  

On this basis, the Council remarked that the first paragraph of Article L. 523-1 of CESEDA, which allowed detention on the basis of a “threat to public order”, was vague and lacked sufficient safeguards, without requiring an assessment of the seriousness, immediacy or nature of the public threat. Thus, it assessed that the deprivation of liberty allowed by the provision was not justified by the objective pursued. For the provision allowing detention based on a “risk of absconding”, the Council observed that the second paragraph of Article L. 523-1 CESEDA allows competent administrative authorities to characterize such a risk due to a person's failure to file an asylum application within 90 days of entry into France or because they remained in the Schengen area irregularly without providing proof of a right of residence. The Council found that these factors did not automatically characterize a risk of absconding.  

The Council concluded that these provisions, which allowed the detention of asylum seekers for up to 48 hours, extendable to 28 days, lacked sufficient justification or procedural guarantees and were in violation of Article 66 of the Constitution. Having established that the provisions were unconstitutional on this ground, the Council ruled that there was no need to examine the other grounds of unconstitutionality. As a result, the Constitutional Council declared unconstitutional the words “or, if this measure is insufficient and on the basis of a case-by-case assessment, place in detention” in the first paragraph of Article L. 523-1 of CESEDA, and the second sentence of the second paragraph of the same article.