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Case:
No. 238211 Case Mme Nabiha X
Date:
30 October 2001
Translated by:
Tony Weir
Copyright:
Professor Sir B. S. Markesinis

No. 238211
Case Mme Nabiha X

30 October 2001

Given that the Code of Administrative Procedure provides in article L.521-1 that “when there is a request for the annulment or amendment of an administrative decision the juge des référés…may order that the execution of that decision or some of its terms be suspended if this is justified by the urgency of the situation and an argument has been made which is apt to create a serious doubt about the legality of the decision” and in article L.521-2 that “In such a case of urgency the juge des référés may, if so requested, make any orders necessary to protect a fundamental freedom which has been the subject of a serious and obviously illegal invasion by a public body in the exercise of its powers”;

Given that the freedom which every individual enjoys to live with his family and to conduct a normal family life is a fundamental freedom in the sense of article L. 521-2, cited above, and is to be protected against excessive interference by a public authority; that in addition to the conditions which must be met when suspension is sought under article L.521-1 of the Code, namely that there be a situation of urgency and a serious doubt about the lawfulness of the decision in question, a request under the special procedure of article L.521-2 requires not only a situation of urgency but also a serious invasion of the fundamental freedom in issue as well as the obvious illegality thereof; that such a serious invasion of the freedom to live with one’s family must be taken to exist when a measure capable of being immediately implemented by the administration and insusceptible of suspension in proceedings before a judge qualified to determine what is ultra vires, directly prevents that members of a family continuing to live together; that such is the case with an order that a foreigner living with their family in France be expelled from French soil without possibility of return;

Given that Mme X. has been resident in France since 1969 with her five children, all French citizens, and has no family in her country of origin, and that thus, contrary to the view expressed by the Minister of the Interior, the condition of a serious invasion of her freedom to live with her family must be regarded as satisfied;
But given that such a decision regarding the right to family life is obviously illegal only if the invasion is clearly disproportionate in the light of the factors which led to the decision being taken; that in deciding to order the expulsion of Mme X. the Minister of the Interior based his decision on the fact that she had been sentenced to four years imprisonment by the correctional tribunal of Toulon on 22 May 1998 for habitually receiving goods criminally acquired and moneys resulting from drug trafficking and for failing to explain her assets when her cohabitant was engaged in drug trafficking; that notwithstanding the presence in France of all the members of the family of Mme X. …, it emerges from the dossier that in view of the seriousness of the crimes of which she is guilty and the fact that her minor son is being looked after by his sister, the Minister of the Interior cannot be said, in ordering her expulsion for the reasons he has, to have been guilty of a manifestly disproportionate invasion of her right to a normal family life;

Given that it follows that the Minister of the Interior is entitled to maintain that it was wrong of the single judge of the administrative tribunal of Nice to hold in the decision under attack, based on article L.521-2 of the Code of Administrative Procedure, that the Minister’s ruling of 27 July 2001 was obviously unlawful in relation to the complainant’s right to a normal family life;

Given that in an appeal such as this the Conseil d’État can examine the other arguments which Mme X…presented to the single judge of the administrative tribunal of Nice;

Given that in his decision of 27 July 2001 the Minister of the Interior gave sufficiently precise expression to the considerations of law and fact on which his order for her expulsion was based, so that Mme X… cannot claim that his decision was rendered obviously illegal for lack of the reasons required by the provisions of articles 1 and 3 of the law of 11 July 1979 concerning the publication of the rationale of administrative acts and the improvement of relations between the administration and the citizen;

Given that according to article 26 of the Ordinance of 2 November 1945, as modified, regarding the conditions of entry and residence by foreigners in France “Expulsion may be ordered …b) in derogation of article 25 if it represents an imperative necessity for the security of the state or the public…” and that the Minister of the Interior has not committed any obvious illegality in determining that the expulsion of Mme X…is required by an imperative necessity for the safety of the public, despite her assertion that she has not committed any crime since leaving prison;

Given that it follows that the Minister of the Interior is entitled to maintain that it was wrong of the single judge of the administrative tribunal of Nice to suspend the execution of his order of 27 July 2001 under article L.521-2 of the Code of Administrative Procedure;

Given that Mme X… shows no specific reason to question the decision of the prefect of the Var of 4 September 2001 that she should be sent to Tunisia, and that it was therefore wrong of the single judge of the administrative tribunal of Nice to suspend the execution of that order pursuant to the suspension of the execution of the order of 27 July 2001;

DECIDES
1. The order of the juge des référés of the administrative tribunal of Nice dated 8 September 2001 is annulled to the extent that he suspended the execution of the order of the Minister of the Interior dated 27 July 2001 and the order of the prefect of the Var dated 4 September 2001;
2. The claim submitted by Mme X… to the juge des référés of the administrative tribunal of Nice is dismissed in so far as it sought the suspension of the two orders mentioned above…
3. The arguments presented by Mme X… regarding the provisions of article L.761-1 of the Code of Administrative Procedure are rejected.
4……


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