Johann Morri: Judicial Review of Administrative Visa Denials in France
ImmigrationProf and other blogs have analyzed in depth the issues before the U.S. Supreme Court in Kerry v. Din, which was argued before the Court last Monday with the Office of the Solicitor General vigorously defending the doctrine of consular nonreviewability as an absolute bar to judicial review of consular officer visa decisions. Johann Morri, an administrative law judge in France who earned a L.LM. degree in the United States, discusses how judicial review of such decisions is possible in France and a change in the law in 1986 has not had major adverse consequences (namely, there has not been much litigation over visa denials) .
In France, the doctrine of consular non-reviewability of the visa denials by consular officers was given up in 1986 (Conseil d’Etat, Feb. 28, 1986, Ngako Jeuga, Leb. p. 49).
Visa denials can currently be appealed and reviewed according to the following procedural steps.
First, the visa applicant must submit a claim before a specialized administrative board of appeals, the CRRV (Commission de recours contre les refus de visa). The board of appeals (CRRV) finds for the agency in more than 90% of cases (and its decisions are not binding on the ministry). For this reason, the CRRV has been heavily criticized by immigration advocacy groups, who mainly view it as a waste of time and a useless step on the road to judicial review.
If the board upholds the visa denial, doesn’t answer the claim within two months, or if the Ministry of Foreign Affairs (the equivalent of the State Department) maintains its visa denial despite the advice of the board, the applicant (or its spouse or relative) can seek judicial review of the denial.
The judicial review of the denial takes place before the administrative tribunal of Nantes (NB: although the name of the court is “tribunal administratif”, it’s the equivalent of an article III court in the USA, since the court is totally independent from the government and its decisions are binding on the agency). Plaintiffs do not need to be represented by an attorney.
The standard of review and the amount of deference to the agency’s decision vary depending on the type of visa and of the nature of the right asserted by the plaintiff (generally, the standard of review is high when it comes to family reunification/spouses visas ; it’s more deferential when family life is not at stake). The decision of the “tribunal administratif” may be appealed before the Conseil d’Etat (French highest public law court). (Nota : Before 2010 the visa denial could be challenged directly before the Conseil d’Etat, because no other court had territorial jurisdiction to hear those cases, since the decisions were taken outside of the metropolitan French territory. The Conseil advocated – successfully — for the instauration of a more traditional two-tiered system of court review, and the litigation was transferred to the Administrative court of Nantes).
Upon showing of a particular emergency and of a “serious doubt” regarding the validity of the consular denial (the “refere” procedure), the applicant may also apply for a stay of the visa denial –which, in practice, often puts an end to the litigation, since the applicant is allowed to travel to France.
According to the official statistics published by the French government (official immigration report of the government to the congress, published every year : Les etrangers en France. Dixieme rapport au Parlement en application de l’article L. 111-10 du code de l’entrée et du sejour des etrangers – 2012 edition, p. 37, 4 and 49), the number of denials actually litigated before the courts is limited :
|
2007 |
2008 |
2009 |
2010 |
2011 |
2012 |
|
|
Visa applications |
2.350 millions |
2.336 millions |
2.1 millions |
2.24 millions |
2.43 millions |
2.6 millions |
|
Visa denials |
240 235 |
224 991 |
224 053 |
217 331 |
221 147 |
247 255 |
|
Rate of denial |
10.40% |
9.80% |
10.80% |
9.80% |
9.30% |
9.60% |
|
Appeals to the CRRV |
3867 |
4328 |
691 |
5269 |
13369 |
17663 |
|
Claims filed before the courts |
500 |
897 |
1154 |
1909 |
2431 |
2173 |
|
Percentage of visa denials cancelled by the courts |
13% |
15% |
12% |
22% |
21% |
20% |
|
Percentage of moot cases (the visa is delivered before the court’s decision) |
24% |
39% |
44% |
31% |
27% |
19% |
Even if, in absolute numbers, the amount of cases brought to court every year is important (more than two thousand in 2012, the last year with official data available), the percentage of visa denials actually litigated before the courts is very low. The litigation rate has increased over the years, but remains low (about 2100 court cases for about 2,6 millions visa denials in 2012 : less than one per a thousand).