Case Law Database

Smuggling of migrants

Offences

• Enabling illegal entry
• Enabling illegal stay

Appeal Nº 08-83961

Fact Summary

The defendant declared to be the father of Haitian children – which was not true – in order to trigger the issuing of the necessary administrative documents that allowed the entry and stay of the foreign children in France.
 
 
Legal findings:
The Court of Appeal of Fort-de-Franceacquitted the defendant of “assisting the irregular entry, transit or stay of a foreigner in France. On appeal, the Court of Cassation overturned the decision and sent the case back to the Court of Appeal for review.
For further details see “History of Proceedings” and “Commentary”. 

Commentary and Significant Features

The Court of Cassation determined as follows:
  • The law punishes the assistance, direct or indirect, to irregular entry, transit and stay of foreigners in France. The crime type does not require that the means of assistance be illegal or criminal.
  • The acknowledgement of paternity with the sole purpose of obtaining the necessary administrative documents to allow the entry and stay of migrants in France falls under the scope of “assistance, direct or indirect, to the irregular entry, transit and stay of foreigners in France”.
  • No French law requires the invalidation of administrative documents or the annulment of declarations of paternity as a condition to trigger the application of the norms criminalising the smuggling of migrants.
  • The fact that France is a State Party to the United Nations Convention on the Rights of the Child does not prevent the conviction of the defendant in the instant case. The protection of minors therein enshrined cannot be based on declarations of paternity exclusively aimed at fraudulently obtaining residence permits. The afore-mentioned Convention indeed prohibits the expulsion of minors; however, this does not amount to the attribution of French nationality, rather determining that State authorities will take on responsibility for the children until the age of adulthood.
Against this background, the Court of Cassation overturned the appealed decision and sent the case back to the Court of Appeal for review accordingly.
 
NOTE: As per French national law, the purpose of obtaining a financial or other material benefit is not a constitutive element of the crime but rather an aggravating circumstance (see SHERLOC Database on Legislation – France).

Cross-Cutting Issues

Liability

... for

• completed offence

... based on

• criminal intention

... as involves

• principal offender(s)

Investigation Procedure

Involved Agencies

• Criminal Police
• Public Prosecutor

Procedural Information

Legal System:
Civil Law
Latest Court Ruling:
Supreme Court
Type of Proceeding:
Criminal
 
On 7 May 2008, the chambre correctionnelle of the Court of Appeal of Fort-de-France acquitted the defendant of migrant smuggling, specifically “assisting in the illegal transit and stay of foreigners in France”. The court of Appeal of Fort-de-France considered inter alia:
  • The acknowledgement of paternity is not an offence and the fact that it may be false does not integrate the objective elements of the crime of migrant smuggling;
  • The migrants in question are Haitian children that have benefited from a declaration of paternity by a French national, whereby no procedure had been triggered to annul such false acknowledgment of paternity;
  • The corresponding documents allowing the regular entry and stay in France had not been invalidated.
  • France is party to the United Nations Convention on the Rights of the Child, according to which minors may not be expelled from the country and shall benefit from the assistance and support of the State.
The Public Prosecutor appealed.
 
 

Migrants

Migrant:
Gender:
Child
Nationality:
Haitian

Defendants / Respondents in the first instance

Defendant:
J.C.X.
Gender:
Male
Nationality:
French

Charges / Claims / Decisions

Defendant:
J.C.X.
Charge:
Assisting the irregular entry, transit or stay of a foreigner in France
Statute:
Code of entry and stay of foreigners and right of asylum - “Code de l'entrée et du séjour des étrangers et du droit d'asile (CESEDA)”Articles L 622-1 and L 622-3
Verdict:
Guilty

Sources / Citations

Cour de Cassation
Nº de pourvoi 08-83691
7 January 2009