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Chapter 4

Legal borders in Europe: The waiting zone

Tugba Basaran

Whereas European states confirm an important commitment to ‘principlesof liberty, democracy and respect for human rights and fundamentalfreedoms and of the rule of law’ (Treaty on the European Union, 92/C 191/01, preamble), this commitment appears to find some of its limits in entrypolicies against foreigners – especially refugees and other unwantedmigrants. This chapter will examine a specific case hereof, the Frenchwaiting zone, to understand how liberties are limited in the midst ofEurope by examining legal borders and their impact upon the rights ofnon-citizens. For the liberal state the infringement of liberties on itsterritory is the most difficult case to justify and poses the challengingquestion, pursued in this chapter, how the liberal state can create a legalorder that limits fundamental liberties on its territory. As shall bedemonstrated, paradoxically, constitutional rights that are usually takenfor granted can be denied through the very same institutions that aresupposed to guarantee these rights, namely democratic institutions and therule of law. While classical liberal thought promotes a particular reading ofthe rule law as an indispensable safeguard for the defence of liberties, theFrench waiting zone demonstrates how the rule of law contains thepotential to limit liberties, to create a legal order that privileges policingpowers over the guarantee of rights.

The waiting zone

With the law on the waiting zone, France established in 1992 the waitingzone, a particular legal space for foreigners – primarily refugees andunauthorized migrants – who have arrived at an international airport,seaport or train station in France, but are not granted entry by theimmigration authority (CESEDA 2004). This legal space is on the territoryof France but provides greater policing powers and lesser rights thanprovided for by ordinary French law. The waiting zone is a legal space thatsurrounds foreigners who have not been admitted to France, but are on theFrench territory. Even though physically on French territory, they are

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legally considered to be outside of France and hence they are outside theusual guarantee of constitutional protection. (On the waiting zone: Anafé1993, 2003, 2004a, 2004b, 2006; JRS 2004; Bigo 1996; de Loisy 2005;Rodier 2002, 2003; Julien-Lafferiere 2002; Makaremi 2005). This requiresthe distinction between physical presence and legal presence, crystallizedaround the concept of legal entry. Legal entry departs from a physicaldefinition of entry: mere physical presence on the territory is insufficientand only lawful admission amounts to entry – and hence the right tobenefit from constitutional protection (Hathaway 2005).

This legal technique is applied at various ports of entry – internationalairports, seaports and train stations -, but also for territorial waters, someland territory and if based on legal status for all the state’s territory. It is notlimited to France, but can be found under various names, such as receptioncentre, transit zone or detention area, in almost all liberal states, and hasbecome part of a global political infrastructure (JRS 2004; EuropeanParliament 2005; Le Cour Grandmaison, Lhuilier and Valluy 2007; Intrandand Perrouty 2005; Rodier 2003). While the legal framework for theconstitution of these spaces varies dependent of the domestic law of eachstate, their key common characteristic are, first, that ordinaryconstitutional rights are suspended or limited in these places, second, thatthey are all established through ordinary law, and, third, that they arebased upon a common legal technique, a separation of physical presencefrom that of legal presence.

The waiting zone is hardly an exceptional construction, and the Frenchcase suggests the view that such devices are deeply embedded in ordinaryprocedures of liberal democracies (Bigo et al. 2006). Security practices ofstates and the limitation of fundamental rights are increasingly embeddedwithin a legal framework. A legal order has been constituted that preventsfull access to individual liberties. Analyzing the rule of law provides aninsight to the legal order of the liberal state and how the rule of law canserve as means of creating and legitimizing spaces of illiberal rule in liberaldemocracies. This leads to a questioning of the rule of law and its oftenpresumed possibility to guarantee rights. The limitation of liberties henceappears not as paradoxical states of liberal rule, but liberal discoursesconceal that the infringement of liberties can be achieved through the ruleof law. The most powerful tools of law are its most ordinary techniques: thecreation of legal identities, the creation of legal spaces and the creation oflegal borders. These legal practices constitute and, moreover, legitimizeilliberal rule.



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Limits to Liberties

The law on the waiting zone established a legal space of greater policingpower and lesser rights than provided for by ordinary French law. Itcreated a set of particular rights for people held in the waiting zone,producing a distinction between rights at the waiting zone and ordinaryrights valid after legal entry. Hereby, legal identification was an importantprerequisite for governing a specific population differently. The law on thewaiting zone singles out a specific group for different treatment: non-admitted foreigners and asylum seekers. ‘The foreigner who arrives inFrance by rail, sea or air, and who is either not authorized to enter Frenchterritory or requests admission under the title of asylum, can be held in awaiting zone …’ (CESEDA 2004, L221-1). The limits to liberties apply tothis specific population only and the law on the waiting zone creates aparallel legal system that is in its legal protection inferior to the ordinarylegal framework for France. This dual legal system finds its expression inmultiple components of the law, two of which shall be discussed in thefollowing: first, in the process of asylum at the border and related processof return, and, second, in the rights accorded to those held in the waitingzone, such as safeguards from detention and judicial access and rights ofappeal (Anafé 2003; 2006).

First, asylum at the border: France’s law specifies that foreigners need to bepresent on French territory to apply for asylum; people in the waiting zoneare precluded from applying for asylum, as they are considered as nothaving legally entered the territory. A separate procedure, known as‘asylum at the border’ applies to people held in the waiting zone (institutedin 1982, Décret no. 82-442 du 27 Mai 1982, Art. 12). This consists of apreliminary application, a permit called ‘leave to enter the country ongrounds of asylum’, and a preliminary decision, the decision whether theasylum request is ‘manifestly unfounded’. Only if successful is theapplicant allowed to enter French territory, furnished with a pass for eightdays, and with access tothe normal procedure for refugee statusdetermination used on French territory. If unsuccessful, then admission tothe territory is refused, and the immediate deportation of the foreignerbecomes possible. This practice does not count as refoulement in violationof Article 33 of the Refugee Convention, however, since the foreigner hasnot legally entered French territory. Asylum at the border thus allowsFrance to circumvent Article 33 of the Refugee Convention and create twosets of rights for refugee status determination, one applicable at the waitingzone and the other after legal entry to the territory. It is not only theprocedures that are distinct, but also the institutions that are responsible



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for the procedures. The institutional responsibility for refugee statusdetermination lies, according to French law, solely with the Office forProtection of Refugees and Stateless Persons (OFPRA) and the AppealCommission for Refugees (CRR). Asylum at the border, however, is underthe control of the Ministry of Interior. This is made possible by regardingasylum at the border not as an initial status determination, but as aquestion of access to the territory. The Ministry of Interior takes the finaldecision on admission to the territory; OFPRA is limited to an advisoryfunction in the waiting zone (previously the decision was taken afterconsultation with the Ministry of Foreign Affairs, Art. 12 Decree no. 82-442, 27 Mai 1982 modified by Decree of 21 July 2004). Consequently, thelaw on the waiting zone facilitates legal solutions that are contrary tointernational refugee law, which are binding on France, by limiting thescope of application of refugee law within France.

Second, different rights are not only valid for the process of asylum andreturn at the border; there is also a different rights regime for those held inthe waiting zone that is weaker than ordinary French law. Safeguards fromdetention and judicial access and rights of appeal are limited in the waitingzone (Anafé 2006: 27-31). As for detention, the law on the waiting zonespecifies that foreigners be held/detained until a final decision on therequest has been reached, specifying a maximum of twenty days. Asylumon the territory does not require a similar administrative detentionprocedure. While the law on the waiting zone appears to promote therights of those detained by limiting the detention period to a maximum oftwenty days (CESEDA 2004: L221-3), and introducing judicial controlafter the first four days of detention (CESEDA 2004: L221-1), it effectivelycircumvents ordinary French law. The law on the waiting zone effectivelyrecognizes that people can be kept in police custody for the first four days,and that administrative detention for asylum seekers is acceptable. It placesdetainees in the waiting zone not only beyond the Refugee Convention, butalso even beyond normal criminal procedures in France. Under normalFrench criminal procedure, the custody period (garde-a-vue), the initialperiod of questioning without being charged for a crime, is twenty-fourhours, with a possible extension up to forty-eight hours with judicialconsent. For special cases, such as trafficking, drug usage and terrorismonly, can the regular custody period be expanded up to four days (Code deProcedure Pénale, Art. 63 to 63-5, 77 and 77-2). Overall, the detention inthe waiting zone is beyond the ordinary legal regime for criminalprocedures as well as refugee procedures applicable in France, with thedifference justified by the legal concept of the waiting zone. As for accessto the judiciary, the law on the waiting zones introduces appeal rights; non-



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admitted persons can appeal their detention, and also the administrativedecision on entry. The possibilities for an effective appeal are limited,however, due to the lack of a clause with an automatic suspensive effect:administrative decisions and decisions of the lower court are oftenimmediately executed and the person not admitted in the first instance canbe deported during the appeal process before the appeal court has decided.This has been contested in Gebremedhin v. France (2007, ECHR 25389/05).The European Court of Human Rights (ECHR) decided that the lack of asuspensive clause runs counter to the European Convention of HumanRights and following the decision of ECHR, the French government hasstarted revising the procedures on asylum at borders. The law on thewaiting zone, whilst open for revisions, facilitates legal solutions thatwould be contrary to international conventions on refugee law if appliedon French territory, and even contrary to French administrative andcriminal procedures. A different set of rights, institutions and proceduresare introduced that are contrary to the ordinary French law. The waitingzone is not a space without rights, however. It takes the ordinary legalframework in France into account, but provides a limited version of it.Liberties usually taken for granted are renegotiated for the waiting zone.

Legal Spaces

To understand how a space of lesser rights is created on French territory,it is important to focus on the politics of space. People with limited rightsare portrayed as not yet having entered the space of liberal rule, as nothaving crossed the border yet. The politics of borders has become animportant practice of liberal rule for limiting liberties. The distinctionbetween inside and outside is strategically used to change the balancebetween security and liberties, to increase sovereign policing powers andlimit access to liberal rights and procedures. Much of the literature onborders has concentrated on the territorial borders of the state, but borderpolitics are effective precisely as they are based on bordering practices ofstates, not on territorial borders (Agnew 2004; Groenendijk, Guild andMinderhoud 2003; Newman 2006; Rajaram and Grundy-Warr 2007;Rumford 2006). Legal borders provide proof of multiple, fluid and selectiveborders that are temporally and spatially flexible. The legal geographies ofthe state, and hereby especially understanding how inside and outsidedistinctions are created, provide a complex pattern of re-visioning thestate, its borders, its jurisdiction and its responsibilities. The following partwill provide an overview of the legal geographies of the waiting zone andby implication the fragmented legal infrastructure of liberties on the state’s



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territory. Two spatio-legal technologies are especially important and shallbe discussed in the following: first, the spatial expansion of waiting zonesand, second, the multiplication of waiting zones.

First, as for the spatial expansion of waiting zones: Initially one of the keycharacteristics of the waiting zone was that it was spatially fixed. The initialpurpose of the law on the waiting zone was to substitute prevailingadministrative regulations and as such the waiting zone was declared to beequivalent to the international zone. ‘The waiting zone … extends from thepoints of embarkation and debarkation to the points where the control ofpeople takes place’ (CESEDA 2004: L221-2).1 The international zone isspatially delimited from the territory for a multitude of matters and governsnot only all people but also all customs procedures. In this sense, thewaiting zone as the international zone appeared to be indiscriminate. Thelaw on the waiting zone would incrementally detach the waiting zone fromthe international zone. This process was as follows: At the time that the lawon the waiting zones came into place, apart from administrativeregulations, there was an established administrative practice that foraccommodation purposes some people would be brought to a hotel on thegrounds of the airport. The first floor of the hotel would then be declaredan international zone, meaning that people in this area had not yet enteredthe territory of France; they were outside France. Based upon the argumentof necessity, the waiting zone thus became detached from the internationalzone. This practice was inscribed into law by including accommodationwithin the parameter of the port, airport and train station (CESEDA 2004,L221-2). Initially limited to accommodation on the grounds ofinternational transit, the location of accommodation was further extendedin 2003 to also include the nearby neighbourhood of international transitzone. What nearby meant was not further defined, giving flexibility indeparting from a law fixed initially on the international zone. The ultimatedelocalization of border and rights came with the 2003 amendments to thelaw on the waiting zone. ‘The waiting zone extends, without the necessityto take a specific decision, to the places where the foreigner has to be, eitherin the framework of the procedure in process or in case of medicalurgency.’ (CESEDA 2004, L221-2)2 The waiting zone was now extended,based on administrative and humanitarian considerations, to all the placeswhere the foreigner needed to be. The legal status of the person came todetermine the status of the place. Waiting zones had a spatial anchor at theborder, but the waiting zone attached itself to the person wherever he/she

1. Our translation.2. Our translation.

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went. Wherever he/she went was legally outside of France. In this case it isno longer a place that has rights attached to it, but a legal space, withoutcorrelation to a physical space that serves to govern specific populations.Law does not equally apply across all populations or across all the territory.Legal identity matters: the pre-classification of people into admissible andinadmissible determines their rights status. The same location can beoutside France for the non-admitted, whereas for the admitted it is insideFrance. All of France could be inside and outside at the same time. Withinthe territorial container of the state there were two layers of law for twopopulations and the same location had different impacts based on legalidentity. Instead of equality before law, law becomes a tool for governingpeople according to different rules: a dual structure is created for governingone of these populations by rules of security and for protecting the otherby the rules of liberal democracies.

Second, apart from its indefinite spatial extension, it is also the immensepossibility for the multiplication of border zones that poses a problem forliberal democracies. One approach to multiplication is the creation of newwaiting zones through law. This approach was used when waiting zones,created for ports and airports initially, came to include train stations withinternational traffic (see loi no 94-1136 du 27 décembre 1994). The moreproblematic approach is, however, the undefined multiplication of borderzones within the legal framework. Before the law on the waiting zone, thewaiting zone was created purely by administrative decision/administrativeregulation. While the law on the waiting zone provided a legal frameworkfor border zones, the multiplication of border zones (the creation ofindividual new border zones) remained an inherently administrativedecision. Individual waiting zones can be produced, extended andvanished by the sole decision of the administration. No counter-checks orbalance of powers is foreseen for creating a waiting zone and, therewith anarea of different rights. The prefect of each department can decide on thenecessity and location of a border zone, an area of different rights, as wellas on its precise extent. The prefect can create a waiting zone in allinternational ports – whether airports, seaports or train stations – withinhis/her territorial jurisdiction. In practice, the concept of ports appears alsonot to be fixed, but can be seen as equivalent to arrival points. All ports andcoastal areas can potentially become waiting zones. The waiting zone canpotentially be created anywhere. In the newer legislation the reference forthe decision is no longer the prefect, but ‘a competent administrativeauthority’ (CESEDA 2004: L221-2), thus moving the administrative burdenfor the creation of the waiting zone even lower down in the hierarchy(CESEDA 2004: L221-2). Rather than containing and fixing these spaces,



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the legislation thus allows the flexible multiplication of these spaceswithout the possibility of appeal. The allowance for retrospectivedeclaration of waiting zones further limits the possibilities of control. Theoption for multiplying waiting zones together with the possibility of theirindefinite extension, demonstrates that waiting zones are sophisticatedtools for the government of people. The space of the waiting zone can bepotentially anywhere and create a legal identity that can potentially goanywhere – limited only by the possibility of escaping this legal identityafter twenty days.

Conclusion

This chapter has demonstrated how liberties can be limited through thetechnique of legal bordering. The limitation of liberties is achieved in themidst of European countries through the rule of law and democraticprocedures, namely ordinary legislations such as the law on the waitingzone. The French waiting zone finds its expression in other countriesthrough similar forms of legal enclosure that operate under a similarrationale. Located within the territory of the state, these spaces createdprimarily for refugees and unwanted migrants provide for a set ofparticular rights, lesser rights than the ordinary legal regime of liberaldemocracies. They create particular legal spaces with a set of special rights,procedures and institutions and facilitate options that are contrary tointernational refugee law and even ordinary criminal procedures. Therationale of the waiting zone is a commonly applied sophisticated tool forthe illiberal government of people in liberal democracies. All these places,claimed to be legally outside the state, offer limited rights for refugees orpeople without sufficient documentation. From a policing perspective,however, they are under full control of the sovereign state, since they arepart of its territory. Liberal rule can constitute places of illiberal practicesby establishing two legal borders, a legal border of policing that is broaderthan the legal border of rights. Within this construction, in principle,liberal democracies grant fundamental rights to everybody, but somepeople can never reach the scope of this law, even if they are on theterritory. Strengthening the European Union as an area of freedom,security and justice requires a renewed emphasis on liberties of thirdcountry nationals and equal protection of laws, if it does not want to slidethe slippery slope towards limiting the liberties of third country nationalsin the name of security. From this point of view, the threat against Europedoes not stem from an outside, but is within Europe, namely undermining



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its commitment to the principles of liberty, respect for human rights andfundamental freedoms.

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Legal Borders: The Waiting Zone

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