​​Prohibition of food distributions, what means of action for associations?

​​Prohibition of food distributions, what means of action for associations

Last October 10, the international day to combat homelessness, was cynically an opportunity for the Paris Police Prefecture to take a which banned food distributions for a period of one month in certain areas ofe and XIXe districts, known for housing – if not welcoming – informal living spaces for exiles and asylum seekers.

This practice, recent and localized, has only been observed in Paris and Calais. It is no wonder that the practice began in Calais, "laboratory city" regarding the "hunting" of foreigners.

The risk of it spreading remains significant despite annulments pronounced by the judge, especially since the orders were not always canceled immediately, which gives a positive signal to the authorities who could use means which may have been, at one point, accepted by the judge.

The first Calais decrees

The history of food distribution bans begins in Calais. In response to associations defending exiles who demanded the opening of a place to distribute meals, the mayor – openly hostile to exiles - took two arrests the March 2 and 6 2017. They target food distributions by prohibiting “abusive, prolonged and repeated occupations”, particularly in the Dunes industrial zone, where, precisely, distributions lead to gatherings on a daily basis.

On March 13, 2017, the associations appealed to the administrative court of Lille so that the order be annulled and that the municipality of Calais provide them with "the material means for the operation of a meal distribution service".

For the associations, the contested decisions are in fact in contradiction with fundamental rights, in particular “freedom of assembly, freedom to demonstrate and freedom to come and go; they violate the principle of human dignity established by Constitution of 1946 and consecrated by the Constitutional Council in its Bioethics decision of July 27, 1994 and the principle of prohibition of inhuman and degrading treatment established by Article 3 of the European Convention on Human Rights.

Moreover, for them, it is “all the more serious because the municipal authority is the author”. Indeed, by virtue of its police powers, the mayor is responsible for ensuring public order, among which is the preservation of the dignity of the human person, while here, for political reasons, it gives priority to security reasons, by preventing people in situations of total deprivation from satisfying their basic needs. For the municipality, the distributions lead to overflows, fights, and attacks on hygiene because of the waste (note that this same municipality refuses to provide dumpsters).

Nevertheless, the judge annuls the order on March 22, 2017 because the municipality does not report any problems linked to the distributions and that "the mayor has committed a serious and manifestly illegal attack" on the fundamental rights and freedoms of associations and exiles.

Renewal thanks to the health crisis

It is thanks to the health crisis that the ban will be reborn by a prefectural decree of September 10, 2020 justified, among other things, by the non-compliance with health measures during distributions. The ban is accompanied by sanctions (mainly fines, amounting to €135).

This time, the judge will be less protective of the fundamental rights of exiles. Indeed, by a order of September 22, 2020, he rejects the associations' request to cancel the decree, a solution which will be confirmed by the Council of state, and this, despite the support of the Defender of Rights against the order.

The Council of State sees no disproportionate attack on fundamental rights and considers that the emergency is not characterized: an association mandated by the State is already making distributions – although clearly inadequate according to the applicants – and considers that the exiles can still access the distributions, even if “they are, it is true, more than 3 kilometers away” from the city center where they are installed. A solution which can be perplexing and which will lead to the almost systematic renewal of bans between September 2020 and September 19, 2022.

To date, they have not resumed following a decision long awaited from the Lille administrative court of October 22, 2022 and which leads to the annulment of the orders.

Dismissing the reason drawn from the health crisis, the judge considers the orders to be disproportionate, since the "established disturbances to public order are scattered, punctual, of no serious nature and not linked to distribution" and that moreover, numerous exiles "depend directly on the requesting humanitarian associations for their supply of food and water", the distributions provided by the State being insufficient. Thus, for the public rapporteur, the decrees only have “the effect of complicating access for these precarious populations to basic necessities”.

The Parisian recidivism

On October 10, the Paris Police Prefecture will follow the (false) steps of its counterpart in the North, by prohibiting associations from distributing food to exiles since they would contribute to "stimulating the formation of camps in the boulevard sector de la Villette, where migrants, drug addicts and homeless people meet" according to the Prefecture. The latter also highlights the security aspect to defend its decree speaking of "gatherings", "overflows onto the roads", the presence of "drug addicts" and "disturbances to public order".

The reaction of associations is immediate, and the Paris administrative court issues a order on October 17 which temporarily suspends the order. In fact, it does not appear that the measure is necessary because the Prefecture has not proven the reality of any disturbance to public order.

Furthermore, "given the size of the ban area and the saturation of other food aid systems, this measure has the effect of making it difficult for hundreds of people in very precarious situations to access a food supply first need".

This solution adopted in summary proceedings was predictable (and desirable) given the judgment rendered in 2022 by the Lille court.

However, it is likely that similar decrees will be issued in Paris, Calais or elsewhere. In this case, the associations and exiles concerned could turn to the European Court of Human Rights, based in particular on Articles 3 (prohibition of inhuman and degrading treatment) and 11 (which protects freedom of association and meeting) of the Convention.

Furthermore, we must not forget that there are many asylum seekers among the exiles present in the areas targeted by the bans. However, under the European directive called “Home” of 2013, the state is required to provide them – in addition to accommodation and an allowance – with food. It is therefore quite ironic that it prevents associations – many of which are not subsidized – from making up for the State's failure.

The inclusion of these practices in a repressive migration policy

This new practice is part of a policy of criminalization of solidarity, as illustrated in particular by the fine of €135 provided for people in solidarity with exiles who have defied the ban. Also, if the bans primarily infringe on the fundamental rights of exiles, they also attack the right of associations to help them. However, by virtue of recent case law from the Constitutional Council, stems from the principle of fraternity the freedom to help others for humanitarian purposes.

Moreover, in 2022, deputies tabled a Law proposition clearly aimed at prohibiting food distributions to exiles.

The fact remains that public authorities manage to hinder solidarity on a daily basis, outside of legal texts. They do not lack creativity to hinder associations : Concrete, fences, controls of volunteers, deprivation of water containers…

This approach to hindering humanitarian aid is part of the "theory" of the appeal for air, widely denied : for public authorities, offering dignified living conditions to exiles risks attracting them.

However, these orders will not succeed in stopping all humanitarian aid: quite pragmatically, associations only need to move a few meters to leave the planned area. If this complicates their action, it will not be enough to prevent them. Moreover, in Paris, despite the ban and the threat of a fine, distributions resumed the next day.

Ultimately, this is just one more illustration of the cat and mouse game that the public authorities are playing against associations and exiles.

In Calais, it is now "a water war" which is carried out by the regular withdrawal of water sources and containers. While in Paris, "social cleansing" and the obstruction of associations risks continuing at least until the Olympic Games are held. It remains to be seen who will try to ban food distributions next?

Lilou Abou Mehaya, Doctoral student in Public Law - Asylum law, University of Bordeaux

This article is republished from The Conversation under Creative Commons license. Read theoriginal article.

Image credit: Shutterstock/addkm

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