If the administrative court has dismissed your application against an obligation to leave French territory (OQTF), you may appeal before the administrative court of appeal within one month of service of the judgment. That appeal does not suspend enforcement of the measure, which means that removal may take place while it is being examined. The obligation to leave French territory is provided for by Article L611-1 of the CESEDA, and the available remedies by Articles L614-1 et seq.
A dismissal at first instance is not the end of the road, but it changes the situation. The protection that prevented removal while the court examined the case ended with the judgment. Acting quickly and correctly becomes decisive.
OQTF application dismissed: what to do
When the administrative court dismisses the application, two things happen at once. The OQTF becomes enforceable again, and a fresh time limit opens for challenging the judgment. One month is available to appeal before the administrative court of appeal to which the ruling court belongs.
An appeal is not the only avenue to consider, but it is the legal remedy against the judgment itself.
In which cases can an application against an OQTF be dismissed?
Understanding the reason for the dismissal determines what comes next. The judgment sets out the reasons why the court rejected the arguments raised. That reasoning is the raw material of the appeal.
An application may be dismissed because the grounds raised were held to be insufficient, because the evidence file did not sufficiently establish the situation relied on, or because the application was inadmissible, for instance filed out of time.
A precise analysis of the judgment makes it possible to target what needs to be strengthened or corrected on appeal.
Appealing before the administrative court of appeal
The appeal is brought before the administrative court of appeal in whose jurisdiction the court that delivered the judgment sits. The competent court of appeal is indicated in the notification of the judgment.
The notice of appeal must be in writing and must state its grounds. It resumes the discussion in law and in fact, responding to the reasons relied on by the first instance court.
Once the appeal has been registered, an investigation phase opens, during which the parties exchange written submissions.
The time limit for bringing an appeal
The time limit for appealing is one month from service of the judgment of the administrative court. This rule is specific to removal proceedings and is shorter than the ordinary appeal period, which is two months.
Time runs from the date on which the judgment is served. Compliance is mandatory: an appeal filed after expiry is inadmissible.
Does an appeal suspend removal?
An appeal before the administrative court of appeal does not suspend enforcement of the OQTF. Removal may therefore take place even though the court of appeal has not yet ruled on the case.
This is the major difference with first instance proceedings. Before the administrative court, the application had suspensive effect and provided protection against removal until judgment, underArticle L722-7 of the CESEDA.That protection ends once judgment has been delivered.
On appeal, a further step is therefore required in order to try to prevent enforcement while proceedings are pending.
Applying to suspend removal: the stay of execution
Since the appeal has no suspensive effect, the administrative court of appeal may be asked to order a stay of execution of the judgment, that is, to decide that the judgment will not take effect until the appeal has been determined.
This application is governed by a strict procedure. It must be presented by an application separate from the notice of appeal, accompanied by a copy of that appeal, in accordance with Article R811-15 of the Code of Administrative Justice.On the merits, it must be shown that the grounds raised in the appeal appear serious, and that enforcement of the judgment risks causing consequences that would be difficult to remedy. The court assesses those conditions case by case, and a stay is in no way automatic.
| Good to know La demande de sursis à exécution doit être faite par requête séparée du recours en appel et accompagnée d’une copie de ce recours, sous peine d’irrecevabilité. and accompanied by a copy of that appeal, failing which it is inadmissible. |
The appeal on points of law before the Conseil d'État
If the administrative court of appeal dismisses the appeal, an appeal on points of law before the Conseil d'État remains possible. The Conseil d'État does not retry the facts of the case: it verifies that the court of appeal correctly applied the law and complied with procedural rules.
This remedy is governed by its own conditions, in particular representation by a lawyer admitted to practise before the Conseil d'État, and is subject to a preliminary admissibility procedure. It is a technical route, to be assessed with a lawyer in the light of the individual situation.
The role of the liberty and custody judge in cases of detention
Where a person is placed in detention, two sets of proceedings run in parallel and must not be confused. The administrative judge rules on the lawfulness of the OQTF and of the decisions accompanying it. The liberty and custody judge (juge des libertés et de la détention) reviews the deprivation of liberty, that is, the placement in detention and its continuation.
Appealing a dismissal before the administrative court of appeal therefore does not resolve the question of detention, which falls to a different judge and different time limits. Conversely, the decision of the liberty and custody judge on detention says nothing about the lawfulness of the OQTF. A lawyer coordinates these proceedings where they run alongside each other.
Prospects of success and risks
An appeal makes sense where the judgment shows a weakness in law, or where solid material can be presented more effectively than it was before the first instance court. Conversely, restating the same arguments without strengthening anything invites a further dismissal.
Because the appeal has no suspensive effect, removal remains possible while proceedings are pending, unless a stay of execution is obtained. What can be worked on is the quality of the application, the strength of the evidence, and compliance with time limits and formal requirements.
Common mistakes to avoid
- Letting the one-month time limit expire, which is shorter than the ordinary appeal period.
- Believing that the appeal suspends removal, and failing to apply for a stay of execution.
- Presenting the application for a stay within the same document as the appeal, when it must be the subject of a separate application.
- Reusing the first instance file without supplementing it or responding to the reasons for the dismissal.
Obtaining legal assistance after an OQTF application is dismissed
An appeal is more technical than the initial application. A lawyer practising in immigration law examines the judgment, identifies the useful grounds of appeal, drafts the application, prepares the application for a stay of execution where appropriate, and represents the person concerned before the court. The lawyer also manages the timetable, in particular the effect of an application for legal aid on the time limit.
After a dismissal, protection against removal has ended, and that is what makes the following days decisive. Filing an appeal within the one-month time limit is not enough to remain in France, since the appeal has no suspensive effect: it is the application for a stay of execution, presented separately and properly argued, that serves that purpose. These two steps are prepared together, without delay. El Haitem ◆ Law practises in immigration law, in French and in English, and responds to urgent matters 24 hours a day. If your application has been dismissed, contact the firm for an initial discussion.
Frequently asked questions
What is the time limit for appealing a dismissed OQTF application?
The time limit for appealing is one month from service of the judgment of the administrative court. This period is shorter than the ordinary appeal period, which is two months. The appeal is filed before the administrative court of appeal to which the first instance court belongs.
Does an appeal suspend enforcement of the OQTF?
No. An appeal before the administrative court of appeal has no suspensive effect. Removal may take place while it is being examined. To try to prevent this, the court may be asked to order a stay of execution of the judgment, by an application separate from the appeal.
How can removal be suspended during the appeal?
An application for a stay of execution must be presented by a separate application from the appeal, accompanied by a copy of that appeal, under Article R811-15 of the Code of Administrative Justice. Serious grounds must be shown, together with a risk of consequences that would be difficult to remedy.
Does legal aid extend the appeal period?
Yes. On appeal, an application for legal aid interrupts the appeal period, which starts to run again after a decision has been taken on that application.
What if the administrative court of appeal also dismisses the case?
An appeal on points of law may be brought before the Conseil d'État. It does not retry the facts, but verifies that the court of appeal correctly applied the law. This remedy requires a lawyer admitted to practise before the Conseil d'État and a preliminary admissibility procedure.