C. and D., Georgian nationals, entered France in November 2021 with their minor son and applied for international protection. The French Office for the Protection of Refugees and Stateless Persons (OFPRA) rejected their applications on 22 July 2022, and the National Court of Asylum Law (CNDA) confirmed the refusals on 2 October 2023. The Prefect of the Vosges (the Prefect) had already issued an obligation to leave French territory (OQTF) in October 2022, which became final following a judgment of the Administrative Tribunal of Nancy on 8 November 2022. Despite these measures, the family remained in France. On 5 December 2023, the Prefect again issued OQTFs, set Georgia as the country of return, withdrew the applicants’ asylum-application certificates, and imposed a one-year entry ban. Mr C. and Mrs D. lodged a request for re-examination of their asylum claim on the same day with the Prefecture of Moselle, and were issued asylum-seeker certificates under Article L. 521-7 of the Code on the Entry and Residence of Foreigners and the Right of Asylum (CESEDA). OFPRA later declared the re-examination request inadmissible on 21 December 2023.

By judgment of 16 February 2024, the President of the Administrative Tribunal of Nancy annulled the OQTFs and related measures, holding that the applicants enjoyed a right to remain until OFPRA ruled on the re-examination request. The Prefect appealed to the Administrative Court of Appeal of Nancy, arguing that the re-examination request did not confer a right to remain, since OFPRA had not yet registered it on 5 December.

The court examined the CESEDA provisions governing the right to remain. It noted that under Articles L. 541-1 and L. 541-2, an asylum seeker whose application was registered by OFPRA enjoyed a right to remain, and the certificate constitutes a provisional residence permit until OFPRA or the CNDA decided. Under Article L. 542-1, this right to remain ended only upon notification of OFPRA’s or CNDA’s decision. Crucially, Article L. 542-2 provided exceptions in which the right to remain ceased immediately, namely in cases of inadmissibility decisions, but in any case, such cessation of the right to remain occurs only once OFPRA issued its inadmissibility ruling.

The court held that a request for re-examination conferred a right to remain as soon as the applicant informed the administration of the request, even before OFPRA formally registered it. On 5 December 2023, the Prefect of the Vosges was aware that the applicants had submitted a re-examination request and had been issued asylum-seeker certificates. Since OFPRA’s inadmissibility decisions were issued on 21 December 2023, after the annulled OQTFs, the applicants still held a right to remain on the date the OQTFs were issued. Furthermore, the court noted that, based on Article L. 541-3 of the CESEDA, the issuance of an asylum seeker's certificate, subsequent to a decision ordering the applicant to leave French territory, only suspends the execution of that decision as long as the foreigner retains the right to remain in France, and does not have the effect of repealing such a decision. Thus, the court held that, under CESEDA, the Prefect could not lawfully order removal before OFPRA ruled on the re-examination request.

In conclusion, the Court of Appeal upheld the first-instance judgment and dismissed the Prefect’s appeal in full. It confirmed that C. and D. possessed a right to remain on 5 December 2023 due to the pending re-examination request, rendering the OQTFs unlawful.