Key Benefits:
The Prime Minister,
On the report of the overseas minister,
Considering the Treaty on the European Community, including articles 186 and 187;
Having regard to Council of the European Union Decision No. 2001/822/EC of 27 November 2001 on the association of overseas countries and territories to the European Community;
Considering the criminal code;
Considering the new Code of Civil Procedure;
Considering Organic Law No. 99-209 of 19 March 1999 on New Caledonia, as amended by Organic Laws No. 2000-294 of 5 April 2000 and No. 2000-612 of 4 July 2000;
Having regard to Act No. 99-210 of 19 March 1999 on New Caledonia, as amended by Order No. 2000-350 of 19 April 2000, in particular its Article 31;
Having regard to Act No. 2000-321 of 12 April 2000 on the rights of citizens in their relations with the administrations, including articles 21 and 41 of the Act;
Having regard to amended Ordinance No. 45-2658 of 2 November 1945 on the conditions of entry and residence of foreigners in France;
Having regard to Ordinance No. 92-1147 of 12 October 1992 on legal aid in criminal matters in the Overseas Territories, as amended by Acts No. 92-1336 of 16 December 1992 and No. 98-1163 of 18 December 1998;
Considering Order No. 2000-371 of 26 April 2000 on the conditions of entry and residence of foreigners in the Wallis and Futuna Islands;
Considering Order No. 2000-372 of 26 April 2000 on the conditions of entry and residence of foreigners in French Polynesia;
Considering Order No. 2000-373 of 26 April 2000 on the conditions of entry and residence of foreigners in Mayotte;
In light of Order No. 2002-388 of 20 March 2002 on the conditions of entry and residence of foreigners in New Caledonia;
Having regard to amended Decree No. 62-1587 of 29 December 1962 on the General Regulation on Public Accounts, in particular articles 80 and 227;
In view of Decree No. 93-1425 of 31 December 1993 on legal aid in New Caledonia, in French Polynesia and in the Wallis and Futuna Islands, amended by Decree No. 2001-633 of 17 July 2001 adopted for the application of Order No. 2000-372 of 26 April 2000 on the conditions of entry and residence of foreigners in French Polynesia, by Decree No. 2001-635
In view of Decree No. 95-507 of 2 May 1995 defining the conditions of access of the delegate of the Office of the United Nations High Commissioner for Refugees or his representatives as well as humanitarian associations to the waiting area and implementing Article 35 quater of Order No. 45-2658 of 2 November 1945 on the conditions of entry and residence of foreigners in France, as amended by Decree No. 98-510 of 17 June 1998;
Having regard to Decree No. 98-503 of 23 June 1998 on the application of the Act of 25 July 1952 on asylum and on territorial asylum;
Considering Decree No. 99-511 of 21 June 1999 on asylum in New Caledonia, in particular the 7th of its article 3;
Considering Decree No. 2001-236 of 19 March 2001 on administrative detention centres and premises;
Considering the referral of the Government of New Caledonia dated 4 April 2002 and the supplementary referral dated 19 April 2002;
Considering the opinion of the National Legal Aid Council dated 6 May 2002;
The State Council (inland section) heard,
Decrete:
Any alien who declares that he wishes to stay in New Caledonia for a period not exceeding three months is required to present, in addition to the documents and visas mentioned in the 1st of Article 4 of the above-mentioned Order of 20 March 2002, the documents mentioned in the 2nd of the same Article and defined in Articles 2 to 8 of this Order.
Depending on the reasons for his or her travel, the foreigner must submit, as appropriate:
1° For a tourist stay, any document of a nature to establish the object and conditions of this stay, including its duration;
2° For a professional trip, any document providing information on the profession or quality of the traveller, as well as on the establishments or organizations located in New Caledonia by which it is expected;
3° For a private visit, a certificate of reception signed by the person who proposes to provide accommodation from abroad. This certificate of acceptance is the document provided by the international agreements to which France is a party to justify conditions of stay in the case of a family or private visit;
4° For a stay motivated by hospitalization, any document justifying that it meets the conditions required by the local regulations for admission to public hospitalization facilities, except in the case of serious sick or injured receiving emergency care in a health facility.
The reception certificate requested for private stays is in accordance with a model defined by order of the High Commissioner. It indicates:
(a) The identity of the signatory and, if it acts as a representative of a legal person, its quality;
(b) The personal address of the signatory and the place of reception of the foreigner;
(c) The identity and nationality of the recipient;
(d) The expected arrival and departure dates.
The identity and personal address of the signatory as well as the place of reception for the foreigner, as set out in the welcoming certificate, are certified either by the mayor of the commune or by the Commissioner Delegate of the Republic in the province in which the signatory resides.
If the certificate is signed by a foreign national, it includes the indication of the place, the date of issue and the validity of the residence permit of the signatory. The applicant must be required to hold a temporary residence permit, a resident card, a residence permit from a national of a Member State of the European Union or a receipt of a request for renewal of one of the aforementioned residence permits, or a diplomatic card or a special card issued by the Minister for Foreign Affairs.
If it is subscribed by a Frenchman, the greeting includes the indication of the place and date of issue of a document establishing the identity and nationality of the Frenchman.
The signatory of the greeting certificate must appear personally before the authorities mentioned in the sixth paragraph with an identity document or one of the above-mentioned documents, as well as a supporting document of the place of reception and, where appropriate, the justification for its status as a representative of a legal person.
The certification of the reception certificate can only be refused in the absence of a presentation by the signatory of the above mentioned parts.
If the public authority certified the reception certificate is not the mayor of the municipality, it shall send a copy of the document to the municipality for its information.
The authorities referred to in the sixth preambular paragraph shall submit to the High Commissioner a non-nominative quarterly report indicating, by nationality of the foreigners admitted, the number of certified reception certificates.
When the entry to New Caledonia is motivated by transit, the foreigner must justify that he meets the conditions of entry into the country of destination.
The foreigner requesting his admission to New Caledonia may justify that he has the means of existence that would allow him to face his residence expenses, including the presentation of cash, travel cheques, certified cheques, international payment cards, letters of credit.
The justifications listed in the first paragraph of this article shall be appreciated in the light of the statements made by the interested party concerning the duration and purpose of his stay and the documents produced in support of such declarations and, where appropriate, the validity of the visa.
The documents relating to the guarantees of repatriation must allow the foreigner who enters New Caledonia to ensure the costs associated with his return from the place located in that territory, where he intends to go, to the country of his habitual residence.
The validity of repatriation guarantees is appreciated in relation to the duration and place of main residence chosen by the foreigner; in the event of a noticeable change in this main place of stay and where, as a result, the initially constituted guarantee is manifestly insufficient to cover the repatriation expenses, the person concerned must have a new document guaranteeing the payment of the return costs to the country of his habitual residence.
The foreigner must be in possession of the document guaranteeing repatriation during his stay. This obligation is waived when the foreigner obtains the issuance of a residence permit whose validity is at least one year. In addition, if the person is justified on a legitimate basis, the High Commissioner may terminate this obligation.
The document on guarantees of repatriation may be a valid transport permit to return to the country of habitual residence.
Where applicable, the carrier must ensure that it remains valid until the date of departure.
The document concerning the guarantees of repatriation may be a certificate from a bank institution located in France or abroad guaranteeing the repatriation of the person concerned in the event that the person would not be in a position to assure himself of the costs.
If the attestation is established in a foreign language, it must be accompanied by a translation into French.
The fact, for any foreigner subject to the obligation to guarantee his or her repatriation, that he or she will not be able to produce the title of carriage or the bank certificate referred to in Articles 7 and 8 will be punished by the fine provided for the offences of the 5th class.
The documents provided for in articles 2 to 8 of this Decree shall be submitted:
1° Nationals of the Member States of the European Community and their family beneficiaries of the provisions of the Treaty of Rome relating to free movement;
2° The foreigner who holds a visa with the reference to "French family", issued to the spouses of French nationals and their family members defined in 2° and 3° of Article 22 of the order of 20 March 2002;
3° The foreigner who holds a traffic visa defined by the Schengen Agreement Application Agreement, valid for several entries and for a period of validity not less than one year and issued by a French consular authority or by a State implementing this Convention and acting in representation of France subject to the validity of the said traffic visa in New Caledonia;
4° The foreigner who has a visa bearing the mention: "restaurant card to request from the arrival in New Caledonia";
5° Members of diplomatic missions and consular posts and members of their dependent families from abroad to take up their functions in France;
6° Persons to whom an exemption was granted by the Government of New Caledonia pursuant to the 3rd of Article 5 of the Order of 20 March 2002;
7° Persons to whom a dispensation was granted by the French consular authorities in their country of residence;
8° Members of parliamentary assemblies of foreign States;
9° Officials, officers and agents of foreign public services when carrying out an order of mission of their government or officials of an intergovernmental organization of which France is a member, with an order of mission issued by that organization;
10° Members of the crews of ships and aircraft carrying out service trips under cover of documents provided for in international conventions.
When the control of persons on the border is ensured by national police officials, the decision to refuse entry to New Caledonia outside Canada is taken, subject to the provisions of section 6 of the above-mentioned Decree of 23 June 1998, by the officer in charge of post office or by the official designated by the officer in the rank of lieutenant of police or higher rank.
When the control of persons on the border is ensured by customs officials, the decision to refuse entry to New Caledonia outside Canada is taken, subject to the provisions of section 6 of the decree of June 23, 1998 referred to above by the employee in charge of post or by the employee designated by the officer in the rank of controller or higher rank.
An order made jointly by the Minister of the Interior, the Minister of Foreign Affairs and the Minister responsible for the Overseas shall determine the nature of the documents provided for in 1° of section 4 of the order of 20 March 2002 under which foreigners are allowed to enter New Caledonia.
When a foreigner is allowed to stay in New Caledonia under cover of a travel title with a visa required for stays not exceeding three months, this visa may be repealed if the foreigner holding this visa exercises in New Caledonia a lucrative activity without being regularly authorized, if there are concordant indices to presume that the person in question is
The repeal of the visa is decided by the High Commissioner of the Republic. The Minister of Foreign Affairs shall promptly inform the Minister of Foreign Affairs.
The Government of New Caledonia renders the notice provided by section 7 of the order of 20 March 2002 within fifteen days of its referral by the High Commissioner of the Republic. This notice is deemed to have been issued if it has not been made within that period.
A foreigner over the age of eighteen is required to present himself in the services of the High Commissioner or the Delegate Commissioner of the Republic in the province in which he resides, to enlist a request for a residence permit of the type corresponding to the class to which he belongs. However, the High Commissioner may prescribe that requests for a residence permit are filed at the Grievor's City Hall of Residence.
The application must be submitted by the interested party within two months of its entry to New Caledonia. If he was already staying there, he must submit his request:
1° Either at the latest before the expiry of the year following its eighteenth anniversary, if the foreigner may obtain a residence permit under either Article 18 or 2°, 4°, 5° or 6° or the last paragraph of Article 22 of the order of 20 March 2002;
2° Either no later than two months after the date of its eighteenth birthday, if the foreigner cannot obtain a residence permit in full right under the conditions set out in 1° above;
3° Either no later than two months after the date on which the loss of French nationality became enforceable;
4° Either within the last two months preceding the expiration of the residence card of which he is a holder.
A request for a residence permit is exempted:
1° Members of diplomatic and consular missions accredited in France, their wives, ascendants and children under their roof;
2° Foreigners staying in New Caledonia for a maximum of three months under the cover of their travel document, if any, with a visa;
3° Aliens staying in New Caledonia under cover of a visa for a period of more than three months and less than or equal to six months with the reference to "temporary residence permit", during the validity period of this visa.
It shall be issued to any foreigner admitted to a request for first issue or renewal of a residence permit, for the period specified by it, and shall be subject to the signature of the competent officer and to the stamp of the administrative service responsible, under Article 16 of this Order, for the instruction of the application. The receipt referred to in this paragraph may be issued by affixing a reference to the person concerned's passport.
The validity period of the receipt may not be less than one month. The receipt may be renewed.
The residence permit is issued by the High Commissioner. He carries the photograph of his holder. It can take the form of a thumbnail affixed to the person's passport.
The issuance of a residence permit is denied to a foreigner who does not meet the conditions under which the provisions of the order of March 20, 2002 are subject to the issuance of residence permits or who, seeking the issuance of a residence permit for the exercise of a professional activity, has not obtained the authorization to exercise the residence permit.
The residence permit shall be withdrawn:
1° If the holder, who resides in New Caledonia with a first spouse, has brought another spouse or children other than those mentioned in section 44 of the March 20, 2002 order into the family reunification process;
2° If the foreigner holding a resident card lives in the territory of the Republic in a state of polygamy; in this case, the resident card is also withdrawn to the spouses of that foreigner;
3° If the foreigner who has a resident card has been absent from the territory of New Caledonia for a period of more than three consecutive years or for a period greater than that for which he has been authorized to abstain from that territory under section 27 of the order of 20 March 2002;
4° If the holder is subject to expulsion;
5° If the holder is subject to a judicial ban on the territory.
When the holder acquires French nationality by decree of naturalization or reintegration, the residence permit shall be returned to the authority that notified him of the decision. In other cases, he is returned to the High Commissioner.
The residence permit may be withdrawn:
1° If the licensee ceases to meet the conditions set out in sections 22 to 31 below;
2° If the foreigner who has a resident card pursuant to 4th of section 22 of the order of 20 March 2002 has ceased, within the year following the issuance of this card, to live in community with the spouse he or she has come to join for family reunification.
In the event of withdrawal or refusal to issue any residence permit, the alien must leave New Caledonia.
The silence held for more than four months on a request for a residence permit is a decision to reject.
The aubergists, hoteliers, lodgers or renters of fortified houses, rulers of law or fact of fitted camping pitches or lands for the parking of the caravans are required to have an individual police record filled out and signed by the foreigner upon arrival. It should include:
(a) The name and names;
(b) The date and place of birth;
(c) Nationality;
(d) The usual home of the stranger.
Children under the age of fifteen may appear on the sheet of one of the two parents.
These forms must be submitted daily to the police authorities.
Physical or legal persons renting bare premises are not subject to the obligations set out in the above paragraphs.
Every foreigner, staying in New Caledonia and being held in possession of a residence permit, is obliged, when he transfers the place of his effective and permanent residence, even within the limits of a commune, to make the declaration, within thirty days of his arrival, to the town hall, indicating the place of his former residence and his profession.
The foreigner who, not already admitted to reside in New Caledonia, seeks to issue a temporary residence permit in support of his application:
1° The information on his or her civil status and, where appropriate, that of his or her spouse and dependent children;
2° The documents referred to in Article 13 justifying that he entered New Caledonia regularly;
3° Unless otherwise stipulated by an international convention applicable in New Caledonia, a residence visa of more than three months other than that mentioned in the tenth paragraph of Article 16;
4° A medical certificate issued under the conditions established by joint order of the Minister for Health and the Minister for Overseas;
5° Three face photographs, naked head, 3.5 x 4.5 cm, recent and perfectly similar.
Foreigners seeking a temporary residence card mentioning "private and family life" on the basis of Article 17 of the order of 20 March 2002, with the exception of those who are bound to a regular entry into the territory of the Republic under the 1°, 2° and 3° of the latter article, are exempted from producing the documents mentioned in the 2° of this article.
The provisions of this article shall not be subject to:
- the foreigner who has a residence visa for a period of less than or equal to three months with the mention of "journment card to be requested upon arrival in New Caledonia";
- the foreigner who entered New Caledonia to conduct studies that present a residence visa for a period of less than or equal to three months with the mention "student-concours", if he justifies his effective success in the competition or the pre-admission test for which the visa was granted to him;
- foreigners mentioned in section 17 of the order of 20 March 2002.
Not subject to the provisions of the 4th of this article the aliens mentioned in the 7th of that article 17.
The foreigner who comes to New Caledonia to perform an employee activity and does not meet the conditions set out in the third and fourth paragraphs of Article 16 or Article 17 of the order of 20 March 2002 must submit the evidence provided for in the applicable local labour laws and regulations.
When the foreigner is authorized, under local regulations, to temporarily exercise an employee activity at a specified employer, he/she receives a temporary residence permit with the reference to the provisional work authorization of which he/she is entitled and the same period of validity.
A foreigner who comes to New Caledonia to engage in a non-employed business subject to authorization must submit the justification that he is the holder of that authorization.
The residence permit issued under this article shall contain a reference to the non-employed profession that the holder intends to exercise.
For the purposes of section 17 of the order of 20 March 2002, the foreigner submits in support of his application for the issuance of the temporary residence permit:
1° Exhibits justifying that he enters in one of the cases provided for in article 17 to be issued a temporary residence permit in full right;
2° If he is married and a national of a State whose law authorizes polygamy and if he falls within 2°, 3°, 4° or 5° of Article 17, a statement on the honour that he does not live in the territory of the Republic in a state of polygamy;
3° If it is preceded by the 1st of Article 17 and wishes to stay in New Caledonia for family reunification, the justification that it fulfils the conditions defined under Article 44 V of the Order of 20 March 2002.
For the application of the 5th of section 17 of the order of 20 March 2002, a foreigner who invokes protection due to his right to respect his or her private and family life must provide any justification for appreciating the reality and stability of his or her personal and family ties in New Caledonia with regard to those he has retained in his country of origin.
For the purposes of the 7th of Article 17 of the Order of 20 March 2002, the High Commissioner shall issue the temporary residence permit, in the light of the opinion issued by the competent health authority.
This notice is issued in the light of the report transmitted confidentially by a hospital practitioner and available information on treatment opportunities in the country of origin of the individual. It specifies the need for medical care, the foreseeable duration of treatment, and whether the person concerned may receive appropriate treatment in the country from which he is a native. It also indicates whether the health status of the individual allows him to travel safely to his country of return. The notice is transmitted to the High Commissioner of the Republic by the competent health authority.
A foreigner referred to in the 7th of section 17 of the order of 20 March 2002 that does not meet the standard residence condition may be granted a temporary residence permit for the duration of the treatment.
The health condition defined in the 7th of section 35 of the order of 20 March 2002 is found in the same conditions as those provided for in the first two paragraphs of this article.
For the purposes of the first paragraph of section 16 of the order of 20 March 2002, a foreigner who intends to exercise in New Caledonia no professional activity subject to authorization must submit the following documents:
1° justification for sufficient means of existence;
2° The commitment not to practise in New Caledonia any professional activity subject to authorization, including, where applicable, the indication of the non-employed and not subject to authorization that it intends to exercise. In the latter case, the card that is issued includes, in addition to the mention "visitor", that of the profession that the foreigner intends to practise.
For the application of the second paragraph of section 16 of the order of 20 March 2002, a foreigner who requests a residence permit mentioning "student" must submit the following documents:
1° The justification that it has the means of existence corresponding at least to the basic monthly maintenance allowance paid, under the previous academic year, to the fellows of the French Government;
2° A certificate of registration, registration or pre-registration in a public or private institution of initial education or training, or a certificate of registration or pre-registration in a vocational training organization within the meaning of the legislation and regulations applicable in New Caledonia or a certificate justifying that it is a beneficiary of a programme of the European Union for cooperation in the fields of education, training and youth.
The host institution must operate in conditions consistent with the legislative and regulatory provisions in New Caledonia. Its ability to receive the foreign student under such conditions can be audited by the administration.
For the purposes of the third paragraph of Article 16 of the Order of 20 March 2002, a foreigner who came to New Caledonia to conduct research or to provide university-level education must submit a welcome protocol issued by the scientific or academic host organization and approved for this purpose, attesting to his scientific quality, as well as the object and duration of his stay in New Caledonia.
The rules relating to the host protocol and the accreditation of the host scientific or academic organization do not depend on a national body are determined by order of the High Commissioner.
For the purposes of the fourth paragraph of section 16 of the order of 20 March 2002, the foreign artist-interpreter or author of literary or artistic work must submit in support of his application a contract of more than three months concluded with a company or institution whose main activity involves the creation or exploitation of works of the mind. This contract is aimed at:
1° If this is a work contract, by the competent authority to issue a work authorization;
2° In other cases, by the competent authority in artistic and cultural matters. The prior assessment of the issuance of the visa shall, on the one hand, relate to the object and reality of the activity of the company or institution and, on the other, to the subject matter of the contract.
The foreigner already admitted to reside in New Caledonia who requests the renewal of a temporary residence permit in support of his application:
1° The information on his or her civil status and, where appropriate, that of his or her spouse and dependent children;
2° Three face photographs, naked head, 3.5 x 4.5 cm, recent and perfectly similar.
It also presents the following documents:
1° If he or she wishes to engage in an employee activity, the evidence provided by the legislation and regulations in force locally;
2° If he wishes to exercise a non-employed business subject to authorization, the documents justifying that he is the holder of that authorization;
3° If he intends not to engage in any professional activity, the justification for sufficient means of existence and the commitment not to engage in any professional activity in New Caledonia;
4° If he intends to remain in New Caledonia in order to pursue studies or to attend a course of education or training, the documents required at 1° and 2° of Article 29;
5° If he intends to remain in New Caledonia in order to pursue research or to provide academic education, a protocol of reception issued by the scientific or academic body in accordance with Article 30;
6° If he intends to remain in New Caledonia as an artist-interpreter or writer of literary or artistic work, the pieces required in article 31;
7° If it falls within the provisions of section 17 of the order of 20 March 2002, the evidence that these provisions are still applicable to it.
The establishment of a foreign student must operate under the conditions in accordance with existing legislative and regulatory provisions. Its ability to receive the interested person under such conditions may be audited by the administration.
The term of validity of the temporary residence permit issued to foreign nationals engaged in a professional activity subject to authorization shall not exceed the duration of such authorization.
The term of validity of the temporary residence permit granted to foreigners admitted to stay in New Caledonia for study or education or training may not exceed the duration of such studies, education or training.
The validity of the temporary residence card may not exceed one year. It may also not exceed the validity of the travel document submitted by the interested party.
For the purposes of section 21 of the order of 20 March 2002, the foreigner submits, in support of his application for a resident card:
1° The information on his or her civil status and, where appropriate, that of his or her spouse and dependent children;
2° If he is married and a national of a State whose law allows polygamy, a statement on the honour that he does not live in the territory of the Republic in a state of polygamy;
3° Three face photographs, naked head, 3.5 x 4.5 cm, recent and perfectly similar;
4° The evidence of the sufficiency and stability of its means of existence and, where appropriate, the indications relating to the conditions of exercise of its professional activity and the reasons for which it intends to establish itself permanently in New Caledonia.
The application for a resident card under section 21 of the order of 20 March 2002, when it is filed after five years of uninterrupted regular residence, is an application for the renewal of the temporary residence permit previously held.
For the purposes of section 22 of the order of 20 March 2002, the foreigner submits, in support of his application:
1° The information on his or her civil status and, where appropriate, that of his or her spouse and dependent children;
2° If it falls within 1° to 4° of Article 22 of the order of 20 March 2002, the documents mentioned in the order provided for in Article 12 of this decree justifying that it has entered regularly in New Caledonia;
3° The valid documents and visas mentioned in the order provided for in Article 13 of this Decree or, where applicable, the residence permit that has expired pursuant to the order of 20 March 2002 justifying that he or she stays regularly in New Caledonia;
4° If he is married and a national of a State whose law allows polygamy, a statement on the honour that he does not live in the territory of the Republic in a state of polygamy;
5° A medical certificate issued under the conditions provided for in Article 22 of this Decree;
6° Exhibits justifying that he enters one of the cases provided for in section 22 of the March 20, 2002 order to be issued the resident card in full right;
7° Three face photographs, naked head, 3.5 x 4.5 cm, recent and perfectly similar.
The documents and visas provided for in the 3rd of this article are not required of the foreigner mentioned in the 1st to 4th of Article 22 of the Ordinance of 20 March 2002, when he is a national of a State whose nationals are exempted from a short-term visa under the provisions of an international convention applicable in New Caledonia.
The evidence provided for in 3° and 4° of this article shall not be required of the alien who meets the conditions mentioned in the last paragraph of the same article 22.
The medical certificate provided for in the 5th of this article is not required of the foreigner mentioned in the 7th and 8th of that article 22.
For the purposes of section 25 of the order of 20 March 2002, the foreigner submits in support of his application for the renewal of a resident card:
1° The information on his or her civil status and, where appropriate, that of his or her spouse and dependent children;
2° If he is married and a national of a State whose law allows polygamy, a statement on the honour that he does not live in the territory of the Republic in a state of polygamy;
3° The resident card of which he is a holder and which expires;
4° Three face photographs, naked head, 3.5 cm x 4.5 cm, recent and perfectly similar;
5° An attestation on the honour that he did not, except where an extension was granted to him under the second paragraph of section 27 of the order of 20 March 2002, spent more than three consecutive years outside the territory of the Republic in the last ten years.
The High Commissioner shall establish the territorial commission of the residence permit referred to in Article 19 of the order of 20 March 2002 by an order stating the appointment by the President of the Administrative Court of a delegated adviser if applicable and an alternate, and by the General Assembly of the Court of First Instance, a magistrate and his deputy, and appointing a qualified and alternate person.
The Commission is seized by a request for advice from the High Commissioner, along with the documents necessary for the examination of the case, including the reasons for considering a decision to refuse to issue or renew a residence permit.
The receipt issued abroad, pursuant to the last paragraph of section 19 of the order of 20 March 2002, shall be provisional residence permit until the High Commissioner has ruled after notice of the commission. When the foreigner had previously held a residence permit to work, he bears the words: "He authorizes the holder to work. "
The Chair sets the date for the committee meetings. Members shall be notified of that date and of the agenda at least fifteen days previously by a letter to which the documents referred to in the second paragraph of this article are annexed.
The alien shall be summoned before the commission within the time limits provided for in article 19 of the order of 20 March 2002, by a registered letter with a request for notice of receipt or by any other formality with equivalent guarantees which specifies the date, time and place of meeting of the commission and which mentions the rights resulting for the person concerned of the provisions of that article 19.
The Chief of the Foreign Service of the High Commissioner ' s Office or his representative shall serve as Rapporteur to the Commission. He does not take part in his deliberation. The service shall serve as the secretariat of the commission.
Committee meetings are not public.
Before the commission, the foreigner submits the reasons he invokes in support of his application to grant or renew a residence permit. A record of his explanations is transmitted to the High Commissioner with the reasoned opinion of the commission. The Board's opinion is also communicated to the interested party.
If the Board has not issued its notice at the end of the three months following the date of registration of the High Commissioner's referral to its secretariat, its notice is deemed to be rendered and the High Commissioner may decide.
Nationals of the Member States of the European Community and members of their families who have the nationality of one of these States enter New Caledonia on a simple presentation of an identity card or passport that is valid.
Members of the family of nationals mentioned in the first paragraph who do not have the nationality of one of the Member States of the European Community enter New Caledonia upon presentation of a passport, if any, with a visa. This visa is issued free of charge by the consular authority on the basis of their family relationship with a national of one of the Member States of the European Community, and provided that their presence in New Caledonia is not a threat to public order.
The spouse of nationals of the Member States of the European Community, their descendants under twenty-one years of age or dependent upon them, as well as their dependent ascendants, shall be considered family members within the meaning of this decree.
Nationals of the Member States of the European Community and members of their families regularly stay in New Caledonia, under cover of the document with which they entered, for a period of three months from their entry. In addition, those who are employed during that period must be able to present the work permit provided for in the local provisions.
Nationals of the Member States of the European Community, who are more than eighteen years of age, who exercise an independent economic activity or have an authorization to carry out an employee activity in New Caledonia, who wish to establish their habitual residence there, as well as members of their families, are placed in possession of a residence permit.
The request for a residence permit must be made within two months of the applicant's entry to New Caledonia.
It is filed with the High Commissioner of the Republic or the Deputy Commissioner of the Republic in the province in which the applicant resides. However, the High Commissioner may prescribe that requests for residence cards be filed at the City Hall of the applicant's place of residence.
The request for a residence permit is accompanied by:
1° Guidance on the civil status of the person concerned and, where appropriate, that of the members of his family;
2° Documents, referred to in Article 38, justifying that the interested person entered regularly in New Caledonia;
3° A medical certificate established under the conditions established by a joint order of the Minister for Health and the Minister for Overseas;
4° Three face photographs, naked head, 3.5 x 4.5 cm, recent and perfectly similar;
5° Documents certifying that the applicant regularly performs an employee or non-employed activity in New Caledonia.
The residence card is issued by the High Commissioner of the Republic. She carries the photograph of her licensee.
The residence card issued to a national of a member State of the European Community carrying on an employee or non-employed activity shall bear the mention "European Community" and the indication of the activity carried out by the individual. The residence card issued to a member of the family of a national of a Member State of the European Community bears the mention "European Community - Member of family".
The residence card can also take the form of a thumbnail affixed to the passport of the interested person.
The validity of the residence card issued to the persons mentioned in section 39 is one year. It is extended to ten years during the third consecutive renewal.
However, nationals of the Member States of the European Community referred to in Article 39 receive a ten-year validity residence permit when they justify being a French spouse for at least one year.
The persons referred to in section 39 must leave New Caledonia at the expiry of the validity period of their residence card, unless they are renewed.
The application for renewal of the residence card must be submitted within two months of the expiry of the validity period of the residence permit.
The renewal of the residence card issued for a period of one year is subject to the presentation of the documents mentioned in 1°, 4° and 5° of Article 40. The ten-year residence permit issued pursuant to section 42 is renewed in full right.
The persons referred to in section 39 who have subscribed an application for a residence permit or a renewal of a residence permit shall receive a receipt of a residence permit until it is decided on their application. The recipient may be issued by affixing a statement on the individual's passport.
The issuance or renewal of the residence card may only be denied to the persons referred to in section 39 for public reasons.
The reasons for the refusal decision are communicated to the individual.
The residence card issued to a person mentioned in section 39 who has left New Caledonia for a period of more than three consecutive years is expired. This period may be extended if the person concerned makes the request before his departure from New Caledonia or during his stay abroad.
The residence card issued to a person referred to in section 39 shall be withdrawn if the holder has been subject to a removal measure or a judicial decision prohibiting the territory.
Decisions to refuse the issuance, refusal of renewal or withdrawal of the residence permit may only be made after notice of the territorial board of the residence permit provided for in section 19 of the order of 20 March 2002.
The notification of decisions denying the issuance, refusal to renew or withdrawal of the residence permit for the persons referred to in section 39 and the notification of an expulsion measure shall include the indication of the time limit for leaving New Caledonia. Except as a matter of urgency, this period may not be less than fifteen days when the person concerned has not received a residence permit and a month in other cases.
Any person referred to in section 38 who has entered New Caledonia without complying with the provisions of that section shall be punished by the fine provided for the contraventions of the 5th Class.
Any person referred to in section 39 who, without a valid excuse, shall be held in New Caledonia without seeking, within the time limits provided for in this title, the issuance or renewal of the residence permit for the persons mentioned in the article shall be punished by the fine provided for the contraventions of the 5th class.
shall be punished by the same penalties any person to whom the above-mentioned residence permit has been refused or withdrawn and who shall be held in New Caledonia beyond the period established under section 48.
The residence card issued pursuant to this title for a period of one year shall be considered as a temporary residence permit for the purposes of Article 12, II, of Orders No. 2000-371 and No. 2000-373 of 26 April 2000 referred to above and Article 13, II, of Order No. 2000-372 of 26 April 2000 referred to above, as well as to Article 32 and to the last paragraph of the decree.
The residence card issued pursuant to this title for a period of ten years is viewed as a resident card for the purposes of Article 12 of Orders No. 2000-371 and No. 2000-373 of 26 April 2000 and Article 13 of Order No. 2000-372 of 26 April 2000 and Article 36 of this Order.
The residence card issued under this title for a period of one year is viewed as a temporary residence card, and the residence card issued under this title for a period of ten years is viewed as a resident card for the purposes of section 36 bis of the above-mentioned order of November 2, 1945.
The conditions of stay in New Caledonia of citizens of the Member States of the European Community other than those mentioned in Article 39 and members of their families are fixed by the order of 20 March 2002 and by the provisions of this decree other than those of its title III.
The residence permit to be justified by a foreign national for the purpose of formulating a family reunification application in New Caledonia is either a temporary residence card for a term of one year, or a resident card, or a request for renewal of one of these securities.
The regular stay of at least two years in I of section 44 of the order of 20 March 2002 must have been completed under cover of the titles referred to in section 54 or the following documents:
1° Temporary residence card of less than one year;
2° Provisional authorization of stay;
3° Received an application for a residence permit or renewal of residence permit;
4° Receiving the filing of an application for refugee status or an application for asylum.
The application for family reunification includes a list of all family members designated in the first paragraph of section 44, paragraph I, of the order of 20 March 2002.
The age of children eligible for family reunification is appreciated on the date of filing the application.
In the event that the grouping is only partial, the application also includes:
1° The statement of reasons, including the health or schooling of the child(s) or the housing conditions of the family, which justify, in the interest of the child(s), that family reunification is not required for the whole family;
2° The list of family members for whom family reunification is requested.
The request for family reunification is based on a printed model established by a decree of the High Commissioner of the Republic.
It includes the applicant's commitment to allow officers designated by the High Commissioner to enter the housing intended to accommodate the family for the purpose of verifying the housing conditions, or, if the accommodation is not yet available, to put them in a position to carry out this on-site check.
I. - In support of its application for reunification, the foreign national presents the originals of the following:
1° The supporting documents of the civil status of family members: the marriage certificate and the birth certificates of the couple's children with the establishment of the filiation link;
2° The residence permit under the cover of which the foreigner resides in New Caledonia or the receipt of a request for renewal of the residence permit;
3° The justifications for the resources referred to in Article 61;
4° The housing documents for the reception of the family such as: title of ownership, lease, promise of sale or any other document to be determined that the applicant will have a housing on the date it specifies. These documents must mention the characteristics of housing under the conditions laid down in section 62 and the date on which the accommodation will be available.
II. - In addition to these parts, must be produced, if any:
1° In the case of an adopted child, the adoption decision, subject to subsequent verification by the prosecutor of the Republic of the regularity of the adopted child when it was pronounced abroad;
2° When the family reunification is requested for children whose parents have died or fallen from their parental rights, the death certificate or the decision to terminate;
3° When the family reunification is requested for a child under the age of eighteen of the applicant or his or her spouse, who has been entrusted to him or her under the exercise of parental authority by a foreign court decision, the decision, together with the consent of the other parent to the coming to New Caledonia of that child in the forms provided for in the legislation of the country of residence;
4° When the application concerns the spouse of a foreign national of a State whose law allows polygamy, a statement on the applicant's honour certifying that family reunification will not create a polygamy situation in the territory of the Republic.
III. - All documents and documents must be accompanied, if any, of their translation into the French language by a certified translator near a court of appeal.
On the basis of the complete record, a certificate of filing of a record is issued without delay, which shall result in the six-month period provided for in the second paragraph of Article 44 of the Order of 20 March 2002.
The diplomatic or consular authority in the electoral district in which the applicant's family lives is immediately informed of the filing of the application by the service that has received the application.
The foreign national submits his application personally to the High Commissioner's services.
These services verify whether the terms and conditions of resources and accommodation set out in sections 61 and 62 are met.
The applicant's resources are valued by reference to the average of the minimum wage provided for in the local applicable regulations for a period of twelve months; where the average is not reached, a favourable decision may be taken taking into account the evolution of the situation of the interested party regarding the stability of his or her employment and income, including after the filing of the application.
The resources of the spouse are also taken into account in the assessment of the resources mentioned in the first paragraph that will sustain the family budget in a stable manner.
The employee applicant produces his employment contract, regardless of the nature, or, if not, a certificate of activity from his employer. He encloses the payroll for the twelve-month period prior to the filing of his application, which he is able to produce.
The High Commissioner may, as appropriate, seize the relevant services of an application for an employment investigation that provides the applicant with all or part of the resources it discloses.
Non-Salary income is established by all means.
The family housing must:
1° Offer a total living space of at least 14 square meters for a childless household or two persons, increased by 6.5 square meters per person up to eight persons and 5 square meters per additional person beyond eight persons;
2° Respond to the other minimum conditions of comfort and inhabitability provided by the regulations applicable in New Caledonia in respect of social habitat.
Where the applicant does not yet have the accommodation at the time of application, the verification shall be carried out in the light of the documents prepared and signed by the owner or seller and the applicant specifying the date of availability and the size and set of characteristics to assess the comfort and habitability of the accommodation, in accordance with the conditions mentioned above.
Following the verification of the conditions of resources and housing, and after consulting with the Government of New Caledonia under the conditions set out in section 15, the High Commissioner shall rule.
In the event that the applicant was, at the time of the application, a recipient of a renewal of a residence permit, the High Commissioner verifies that the residence permit was issued before making its decision.
The decision on the application for family reunification is notified by the High Commissioner to the complainant.
The absence of a decision within six months of the date of issuance of the certificate of filing of the file is a rejection of the application for family reunification.
Where a decision of refusal is motivated by the non-conformity of the housing to the standards of surface, comfort and habitability, or by the non-probative nature of the evidence of the availability of the housing at the arrival of the family, the applicant who submits within six months of the notification of the refusal a new request is then exempted from the production of the parts referred to in 1°, 2° and 3° of Article 59 and II.
The High Commissioner shall inform the mayor of the municipality where the applicant's family must reside and the diplomatic or consular authority of the electoral district in which it dwells of its decision and the date on which it was notified to the applicant.
Medical control of family members for whom family reunification is sought is carried out under the conditions laid down in the 4th of Article 22.
The High Commissioner implements the procedure for the introduction of families of foreigners in New Caledonia or, exceptionally, the procedure for admission to stay from the territory.
To be admitted to New Caledonia, members of the foreign national's family must be provided with the entry visa issued by the diplomatic and consular authority after the decision of the High Commissioner is received.
The visa application must be made within a period not exceeding six months from notification to the applicant of the High Commissioner's decision. The family's entry to New Caledonia must take place within a period that cannot exceed four months from the date of the visa. At the end of this period, the family reunification authorization is deemed to be invalid.
In the event that a foreigner who regularly resides in New Caledonia under the conditions set out in articles 54 and 55 contracts marriage with a person of foreign nationality regularly authorized to stay in the territory under the guise of a temporary residence card for a period of validity of one year, the benefit of the right to family reunification is granted without recourse to the procedure of introduction. The spouse and, where applicable, children under the age of eighteen of the spouse residing in New Caledonia, unless one of the grounds for refusal or exclusion mentioned in 1° and 2° of Article 44 of the order of 20 March 2002 is against them.
The issuance of residence permits and, in the case of minor children, the admission to New Caledonia for family reunification is subject to the production of the medical certificate issued under the conditions provided for in Article 65.
The residence permit issued to members of the family authorized to reside in New Caledonia for family reunification is, pursuant to the III of section 44 of the order of 20 March 2002, either the residence card, or the temporary residence card for a period of one year, as the foreign national whom they have come to join is the holder of either of these titles.
The temporary residence card refers to "private and family life"; it may permit the exercise of any professional activity under the conditions prescribed by the applicable local provisions.
The minutes referred to in the second paragraph of Article 29 of the Order of 20 March 2002 shall be signed:
1° By the officer in charge of the position of chief of post or by the officer designated by him, who holds the rank of lieutenant or higher grade, if the control is provided by the officers of the national police;
2° By the employee who is in the position of Chief of Post or by the employee designated by him, who is in the rank of Comptroller or higher grade, if the control is performed by customs officers;
3° Or by the gendarmerie's military officer in charge of the functions of brigade commander or deputy if the control is provided by the national gendarmerie's military.
This report is forwarded to the Minister of the Interior. It includes the name of the transport company, the references to the flight or travel concerned and the identity of the passengers under which the responsibility of the transport company is likely to be incurred, specifying for each of them the reason for the refusal of admission. It also includes, where applicable, the observations of the transport company. Copy of the minutes is delivered to his representative, who acknowledges receipt.
The Minister of the Interior shall notify the transport company, by registered letter with acknowledgement of receipt, of the proposed sanction referred to in the third paragraph of section 29 of the order of 20 March 2002. The transport company is invited to submit any comments within one month of this notification.
The file is made available during this period. The company may be issued a copy at its expense of any or part of the proceedings.
The Minister of the Interior makes a decision after the expiration of the one-month period, given the observations that may have been made. The written and motivated decision is notified to the transport company by registered letter with acknowledgement of receipt.
The fine is recovered under the conditions provided for the claims of the State mentioned in article 80 of the decree of 29 December 1962 referred to above.
The Justice of Freedoms and Detention, competent to order the extension of the detention in premises not under the prison administration, is seized by a simple request from the High Commissioner.
This request is substantiated, dated, signed and accompanied by any relevant supporting documentation. In addition, when it tends to the extension of the five-day or six-day period referred to in the thirteenth paragraph of section 50 of the order of 20 March 2002, it hardly contains the disclosure of the factual elements that, or characterize the absolute urgency and the threat of a particular gravity for public order, or indicate that, at the time it is removed, it is impossible to enforce
The application shall be transmitted by any means to the court office before the expiry of the period of forty-eight hours or three days referred to in the seventh paragraph of section 50 of the order of 20 March 2002, or within twenty-four hours before the expiry of the five-day or six-day period referred to in the thirteenth paragraph of the same article, as the case may be.
The clerk registers and affixes it, as well as the attachments, a stamp indicating the date and time of receipt.
Upon receipt of the request, the judge of freedoms and detention shall determine the time of the hearing. Notice is given by the Clerk, immediately and by any means, to the High Commissioner, the Public Prosecutor, the foreigner and his lawyer if he has one.
The judge of freedoms and detention advises the foreigner of his right to choose a lawyer. He makes him designate an ex officio if the foreigner asks.
The request of the High Commissioner and the attachments to it may, upon arrival at the Registry, be consulted by the foreign lawyer. They may also be consulted, prior to the opening of the proceedings, by the foreigner himself, possibly assisted by an interpreter if he does not know the French language sufficiently.
At the hearing, the representative of the High Commissioner, on his or her application or on that of the judge, is heard in his or her submissions.
The foreigner, except if he does not appear well as properly summoned, and, if necessary, his lawyer shall be heard. The president appoints an interpreter if the foreigner, who does not sufficiently speak the French language, asks.
The Public Prosecutor's Office can make its opinion known.
The order of the judge of freedoms and detention shall be issued without delay. It is notified on site to the parties present at the hearing who acknowledge their receipt. The judge shall notify the parties present verbally of the time limit and the manner in which such appeal may be exercised. He simultaneously informs them that the appeal is not suspensive.
Notifications under paragraph 1 shall be made by any means abroad that has not been submitted, although duly summoned.
The order is subject to appeal to the first president of the Court of Appeal, by the foreigner or the High Commissioner, within 24 hours of his or her statement. The Public Prosecution Service may also appeal this order in the same manner.
The first president is seized by a reasoned statement transmitted by any means to the court of first instance or the court of appeal. The statement is registered with the date and time.
When the notice of appeal is received by the Registrar of the Court of First Instance, the Registrar shall promptly send a copy of the notice of appeal and the record of the case to the Registry of the Court of Appeal.
When the notice of appeal is received by the Registrar of the Court of Appeal, the Court of Appeal shall immediately notify the Registrar of the Court of First Instance, who shall promptly transmit the file to the Registry of the Court of Appeal.
The decision of the first president or his delegate on the suspensive nature of the appeal is brought to the attention of the parties by the court of appeal and communicated to the prosecutor of the Republic, who ensures its execution.
The prosecutor of the Republic ensures that the foreigner remains at the disposal of justice until this decision is brought to his or her knowledge or, where the appeal has been declared suspensive, until the decision has been made on the merits.
The Registrar of the Court of Appeal shall notify the parties and the Public Prosecutor's Office of the date of the hearing on the merits.
The High Commissioner, the foreign lawyer and the foreigner himself may ask to be heard at the hearing.
The Public Prosecutor's Office can make its opinion known.
The first president or the magistrate by him delegate shall rule at the bottom within 48 hours of his referral.
The order shall be notified within three days by the clerk abroad and his council, if he has one, and to the High Commissioner, by registered letter with a request for notice of receipt. It is communicated within the same time to the Public Prosecutor's Office.
The order is not subject to opposition.
The cassation appeal is filed within ten days of the notification of the order of the first president. It is open abroad, the High Commissioner and the Public Prosecutor's Office.
The appeal is made by an oral or written statement that the party or any agent with a special authority made, submitted or addressed by a recommended fold, either to the court of appeal's office which rendered the decision under appeal or to the court of cassation's office. The statement shall indicate the name, first name and address of the plaintiff and, where appropriate, the name, first name and address of the defendant(s) to the appeal.
The statement must contain a statement of the grounds of cassation invoked and be accompanied by a copy of the decision under appeal.
The Clerk who receives the appeal shall make his registration. He mentions the date on which the appeal is formed and delivered or addressed, by simple letter, received from the statement.
He immediately sends a copy of the statement by registered letter with a request for a notice of receipt to other persons who would have had the quality to fill in. This notification reproduces the content of Article 86.
When the appeal has been filed with the Court of Appeal, the Registrar of this Court shall forthwith transmit to the Registrar of the Court of Cassation the record of the case with the statement or copy thereof, the copy of the decision under appeal and the documents relating to the notification of the decision. He shall transmit to the Registrar of the Court of Cassation any documents that would be subsequently received from him.
When the appeal was filed with the Court of Cassation, the Registrar of the Court of Cassation immediately requests the file of the case and the documents relating to the notification of the decision under appeal to the Registrar of the Court that rendered the decision.
The respondent shall have a period of two months from the notice provided for in section 84 to file against receipt or make a registered letter to the Registrar of the Court of Cassation in reply. The Registrar of the Court of Cassation shall promptly notify a copy of these observations to the applicant by simple letter.
The parties are exempted from the ministry of a lawyer to the State Council and the Court of Cassation.
When a lawyer at the State Council and the Court of Cassation told the Clerk of the Court of Cassation that he represented a party, the notification of the copy of the case may be made to that lawyer, if any, by notification between lawyers. The handover to the lawyer, against receipt, of a copy of the memory, bearing cachet on the transplant date, is noticeable.
The time limits provided for in articles 81, 82 and 86 are calculated and extended in accordance with the provisions of articles 640 to 642 of the new Civil Procedure Code.
Subject to the provisions of section 2, aliens referred to in section 89 shall be held in custody in institutions called "administrative detention centres" and on a list established by joint decree of Ministers of Justice, Interior and Defence and the Minister for Social Affairs; these institutions are established by the High Commissioner.
Administrative detention centres are intended to receive foreigners mentioned in article 89, regardless of where they reside.
Administrative detention centres must have facilities and facilities, as well as suitable equipment to ensure the accommodation, restoration and relaxation of foreigners, to enable them to benefit from the necessary care and to effectively exercise their rights.
A centre premises are permanently available to persons who have received the authorization referred to in section 100 from the High Commissioner.
Aliens held in an administrative detention centre are provided with reception, information, moral and psychological support and, where appropriate, assistance to prepare the material conditions of their departure.
The national association, with which a convention was passed pursuant to the second paragraph of Article 5 of the aforementioned Decree of 19 March 2001, may contribute to the actions and assistance defined in the preceding paragraph.
In addition, the High Commissioner may enter into a convention with a local association whose purpose is to defend the rights of foreigners.
The living conditions of foreigners held in administrative detention centres as well as the procedures for the exercise of their rights are the subject of an internal regulation specific to each centre and approved by the High Commissioner; this regulation shall be in accordance with a model established by joint decree of the ministers referred to in Article 90.
The Head of Centre is appointed by the High Commissioner.
The head of the administrative detention centre has authority over all persons involved in the operation of the administrative detention centre; In particular:
1° Respect for the conditions necessary for the exercise of their rights by foreigners held in custody;
2° Social actions benefiting aliens held in custody under the conditions laid down in article 93;
3° Implementation of conventions with external, public or private bodies;
4° The keeping of the detention register, a model of which is fixed by order of the ministers mentioned in Article 90, and its communication to the prosecutor of the Republic;
5° Movements of foreigners maintained;
6° Security within the facility, using, where appropriate, the unit or service referred to in section 103.
Where the circumstances of time or place constitute an obstacle to the immediate placement of a foreigner who is the subject of a measure provided for in section 50 of the order of 20 March 2002 in one of the centres referred to in section 90, the alien may be detained in other premises suitable for that purpose designated by the order of the High Commissioner; these premises may be temporarily opened when the requirements do not require permanent opening.
The order referred to in the preceding paragraph shall be notified immediately to the public prosecutor, to the local competent authority for health and social matters, and to the associations referred to in Article 93.
The placement in the premises provided for in section 97 is provisional. The foreigner may be held in these detention facilities until the date on which the President of the Court of First Instance or, if there is an appeal, the first president of the Court of Appeal ruled on the request for an extension of detention.
Aliens held in detention facilities may be assisted by the associations referred to in article 93, at their request or at the initiative of the associations, under the conditions defined by the conventions provided for in the same article.
Members designated by the associations referred to in Article 93 and approved by the High Commissioner for the Centre or Local in which their intervention is being considered shall be granted an authorization of the High Commissioner giving access to the place of detention.
During the period of detention, foreigners are housed, fed and treated free of charge.
The care provided to them is the subject of a past agreement, for each centre or local, between the High Commissioner and a hospital, in accordance with the terms defined by joint decree of ministers responsible for social affairs, the interior and the defence.
When a foreigner held in a centre or in a detention facility requests to benefit from the territorial asylum, the hearing provided for in Article 2 of the above-mentioned Decree of 23 June 1998 is provided by an officer of the services of the High Commissioner.
The High Commissioner shall, by order, designate the Gendarmerie Unit or the competent police service to ensure the custody of the administrative detention centre or premises.
A joint decree of the ministers referred to in Article 101 establishes, respectively, for the centres and for administrative detention facilities, the list of equipment necessary for accommodation in satisfactory conditions for foreigners who are kept there.
The judge of liberties and detention, competent to authorize the maintenance of a foreigner in the waiting area of a port or airport beyond the time limits mentioned in the III and IV of section 52 of the order of 20 March 2002, is seized by a simple request from the head of the border control service or an official designated by him, who holds at least the rank of lieutenant.
This request is substantiated, dated, signed and accompanied by all relevant supporting documents. It must be filed at the court office before the expiry of the said deadlines. It is registered and a stamp indicating the date and time of arrival is affixed to it and the attachments.
Upon receipt of the request, the Judge of Freedoms and Detention fixes the day and time of the hearing.
The notice shall be given by the clerk, immediately and by any means, to the head of the border control department or to the official designated by him, the public prosecutor, abroad and his lawyer if he has one.
The judge of freedoms and detention advises the foreigner of his right to choose a lawyer. Where applicable, it shall inform it of its rights to receive legal aid in accordance with local regulations.
The request of the head of the border control department or of the official designated by him and the documents attached to it may, upon arrival at the office of the court, be consulted by the foreign lawyer. They may also be consulted, prior to the opening of the proceedings, by the foreigner himself, possibly assisted by an interpreter if he does not know the French language sufficiently.
At the hearing, the head of the border control service or the official designated by him, on his or her request or the judge's request, is heard in his or her submissions. A representative of the High Commissioner may ask to be heard.
The foreigner, unless he does not present himself, although duly summoned, and, if necessary, his lawyer are heard. The judge appoints an interpreter if the foreigner who does not sufficiently speak the French language asks.
The Public Prosecutor's Office can make its opinion known.
The order of the judge of freedoms and detention shall be issued without delay. It is notified on site to the parties present at the hearing, who acknowledge their receipt. The judge verbally discloses to the parties present the time limit for appeal and the manner in which such appeal may be exercised. He also informs them that the appeal is not suspensive.
The same notifications are made by any means abroad that has not presented itself, although duly summoned.
The order is subject to appeal to the first president of the Court of Appeal, by the foreigner, the Public Prosecutor's Office or the High Commissioner, within four days of its pronouncement.
The first president is seized by a statement made or handed over by any means to the court of first instance or the court of appeal. The statement is registered with the date and time.
When the notice of appeal is received by the Registrar of the Court of First Instance, the Registrar shall promptly send a copy of the notice of appeal and the record of the case to the Registry of the Court of Appeal.
When the notice of appeal is received by the Registrar of the Court of Appeal, the Court of Appeal shall immediately notify the Registrar of the Court of First Instance, who shall promptly transmit the file to the Registry of the Court of Appeal.
The Clerk of the Court of Appeal shall inform, by any means, other persons who would have been qualified to appeal and make them aware of the date of the hearing.
The head of the border control service or the official designated by him, a representative of the High Commissioner, the foreign lawyer and the foreigner himself may ask to be heard at the hearing.
The Public Prosecutor's Office can make its opinion known.
The first president or magistrate delegated by him shall rule in the 48 hours of his referral.
The order is notified within three days by the Clerk abroad and his counsel if he has one, as well as by the High Commissioner, by registered letter with a request for notice of receipt. It is communicated within the same time to the Public Prosecutor's Office. The order is not subject to opposition.
The cassation appeal is formed under the conditions defined in articles 82 to 88.
The delegate of the Office of the United Nations High Commissioner for Refugees or its representatives and humanitarian associations shall, under the conditions laid down by this decree, have access to the waiting area of a port or airport defined by section 52 of the order of 20 March 2002.
This access must not hinder the operation of the waiting area and the activities carried out by the State services, the transport companies and the infrastructure operators.
The delegate of the Office of the United Nations High Commissioner for Refugees or his representatives has access to the waiting area in conditions to ensure their effective access to asylum seekers.
The access of representatives of the Office of the United Nations High Commissioner for Refugees to the waiting area is subject to individual approval.
This approval is issued for a period of three years by the Minister of the Interior after notice of the Minister of Foreign Affairs.
It is renewable for the same period.
It is materialized by the delivery of a nominative card to obtain a permission to access the waiting area during each visit.
The Minister of the Interior may, after the advice of the Minister of Foreign Affairs and consultation with the delegate of the Office of the United Nations High Commissioner for Refugees, withdraw his or her approval from an authorized representative of that delegate. This withdrawal is motivated.
Accreditation is also withdrawn upon request from the OHCHR delegate.
The delegate of the Office of the United Nations High Commissioner for Refugees or its accredited representatives shall have access to each waiting area upon presentation of their nominative map and subject to public order and transport security requirements.
The practical modalities of this access, including the periodicity of visits, are agreed between the delegate of the Office of the United Nations High Commissioner for Refugees and the High Commissioner to enable the effective exercise of his mission by the Office of the United Nations High Commissioner for Refugees.
The delegate of the Office of the United Nations High Commissioner for Refugees or its accredited representatives may speak with the head of the border control service and, when present, with the representatives of the Minister of Foreign Affairs.
They may also speak confidentially with persons held in waiting areas who have applied for asylum admission.
Representatives of the associations authorized under the provisions of Article 7 of the above-mentioned Decree of 2 May 1995 may, if approved under Article 8 of the same Decree, access the waiting area defined by Article 52 of the Order of 20 March 2002.
In addition, associations proposing by their statutes assistance and assistance to foreigners, the defence of human rights or medical or social assistance and having their seat in New Caledonia may apply for the same authorization as they are regularly declared for at least one year.
Any refusal of authorization must be motivated.
Enabling is granted by the Minister of the Interior, after advice from the Minister of Foreign Affairs, for a period of three years. It is renewable for the same period. The access of representatives of associations authorized to the waiting area is subject to an individual approval granted for a period of three years by the Minister of the Interior after the advice of the Minister of Foreign Affairs.
This approval, which is renewable, may be granted to five persons per association. It leads to the issuance of a nominative card to obtain a permission to access the waiting area during each visit.
The same person can only receive an approval.
The Minister of the Interior may withdraw, after notice by the Minister of Foreign Affairs, the approval issued to a representative of an association.
It may also, under the same conditions, withdraw the authorization of a humanitarian association.
The approval of a representative of an association is withdrawn upon request from the association or when the authorization of the association is withdrawn or expired.
The withdrawal decisions are motivated.
Subject to the requirements of public order and transport security, an authorized association may, through one or two authorized representatives, access each waiting area eight times a year, between 8 hours and 20 hours.
The High Commissioner may authorize any additional visit on written and motivated request from the President of an accredited association or any mandated member of the association.
Authorized representatives of a humanitarian association may speak with the head of the border control service and, when present, with representatives of the Minister of Foreign Affairs.
They may speak confidentially with people held in this area.
During their presence in the waiting area, authorized representatives of an authorized association are accompanied by a border control officer.
Representatives of different humanitarian associations will not be able to access the same waiting area on the same day.
The table of Article 39 of the above-mentioned Decree of 31 December 1993 is supplemented by a VII as follows:
You can see the table in the OJ
n° 230 du 02/10/2002 page 16271 à 16283
The alien against whom a deportation procedure is initiated must be notified by means of a special ballot.
The notification shall be made at the diligence of the High Commissioner.
The notification bulletin shall:
1° Notify the foreigner that expulsion proceedings are initiated against him;
2° Flooding the facts of this procedure;
3° Indicate the date, time and place of the meeting of the commission under section 34 of the order of 20 March 2002;
4° To clarify that the proceedings of the commission are public;
5° Bring to the knowledge of the alien the provisions of Article 129;
6° To make known abroad that he may appear alone or assisted by counsel and ask to be heard with an interpreter;
7° Inform the interested party that he may seek legal aid under the conditions provided for in the above-mentioned order of 12 October 1992 and specify that legal aid may be granted to him by the Chairperson of the commission;
8° Specify that the foreigner or his counsel may request the communication of the file to the service whose name and address must be indicated in the summons and submit a defence brief;
9° Indicate the remedies that would be opened abroad against the expulsion order that could be taken.
The notification bulletin shall be sent abroad, at least 15 days before the date for the meeting of the commission, either by a police officer or by the clerk of the prison if the foreigner is detained. The foreigner unloads this discount.
If the surrender itself could not be made, the summons is sent to his residence by registered letter with a request for a notice of receipt confirmed on the same day, by simple letter.
If the alien has changed his residence without informing the administration of his or her obligation under section 21, the notification shall be made to the last residence known by registered letter under the conditions specified in the preceding paragraph.
If the foreigner summoned under the conditions indicated above does not appear personally before the commission on the scheduled date, the commission shall issue its opinion. However, it refers the matter to a later date when the foreigner provided, in good time or during the sitting through his counsel, a valid excuse.
In any case, the Panel must issue its notice within one month.
The competent administrative authority to issue, pursuant to section 40 of the order of 20 March 2002, the decision establishing the country of return, for a foreigner who is the subject of an expulsion order or who must be transferred to the border, is the High Commissioner.
The silence held for more than four months on a request to repeal an expulsion order is a decision to reject.
The administrative authority competent to issue by order, pursuant to section 41 of the order of 20 March 2002, the decision to summon residence is the High Commissioner.
The above-mentioned Decree of 21 June 1999 is amended to read:
1° At the 4th of Article 2, the words: "in the conditions provided for by the regulations in force in New Caledonia" are replaced by the words: "in the conditions provided for in Article 35 of Decree No. 2002-1219 of 27 September 2002";
2° Article 3:
(a) At 5°, the words: "in the conditions prescribed by the regulations in force in New Caledonia" are replaced by the words: "in the conditions provided for in article 18 of Order No. 2002-388 of 20 March 2002 on the conditions for the entry and residence of foreigners in New Caledonia";
(b) At 6°, the words: "by the regulations in force in New Caledonia" are replaced by the words: "at Article 32 of Decree No. 2002-1219 of 27 September 2002 adopted for the application of Order No. 2002-388 of 20 March 2002 referred to above";
(c) At 9°, the words: "Article 23 of Act No. 96-609 of 5 July 1996 on overseas provisions" are replaced by the words: "Article 50 of Order No. 2002-388 of 20 March 2002 referred to above;
3° Title III is repealed.
The administrative detention centres and premises shall be brought into conformity with the provisions of the order referred to in Article 104 within three years of the publication of this Order.
The provisions of this Decree come into force on 1 January 2003. Requests for residence permits under review at that date will be supplemented, if necessary, by the persons concerned to be made in accordance with the provisions of this Order within two months of the same date.
The Minister of the Interior, Homeland Security and Local Freedoms, the Minister of Social Affairs, Labour and Solidarity, the Minister of Justice, the Minister of Foreign Affairs, the Minister of Defence and the Minister of Overseas are responsible, each with respect to him, for the execution of this Order, which will be published in the Official Journal of the French Republic.
Done in Paris, September 27, 2002.
Jean-Pierre Raffarin
By the Prime Minister:
The overseas minister,
Brigitte Girardin
The Minister of the Interior,
of Internal Security
and local freedoms,
Nicolas Sarkozy
Minister of Social Affairs,
and solidarity,
François Fillon
The Seal Guard, Minister of Justice,
Dominica Perben
Minister of Foreign Affairs,
Dominique de Villepin
The Minister of Defence,
Michèle Alliot-Marie
