REFUSAL OF RESIDENCE PERMIT AND OQTF

Challenging a residence permit refusal

The law firm HEAUME AVOCAT assists all foreigners, regardless of their nationality, in case their residence permit application is refused.

In such a situation, it is important to act promptly and build a strong case to challenge the decision to refuse the residence permit made by the Prefect.

Indeed, depending on the specific situation, the deadlines for action may vary, so it is necessary to consult a specialized lawyer without delay to assess the situation and the likelihood of success in a gracious appeal (to the Prefect) or a legal appeal (to the Administrative Tribunal).

HEAUME AVOCAT accompanies you to legally assess your case and to represent you before the relevant administrative authorities.

What to do in case of exceeding the appeal deadlines

The law firm HEAUME AVOCAT assists its clients in complex situations, particularly those arising from the existence of a definitive obligation to leave the territory that has not been executed.

Indeed, in such a case, it is necessary to carefully analyze the applicant’s situation in order to recommend a solution that will place them in a legal position on French territory.

This situation is delicate, as the applicant is in an irregular status, and it is important for them to rectify it as soon as possible.

Refusal of a residence permit with an obligation to leave French territory.

Refusal to Issue a Residence Permit

• Discretionary Power of the Administration:
• Typically, the administration has broad discretionary power when it comes to issuing residency permits, especially when the permit isn’t granted as an entitlement. The reasons for refusal can vary depending on the type of permit requested. Most often, refusal occurs when the foreigner does not meet the established criteria for obtaining the permit.
However, considerations about respect for private and family life must necessarily be taken into account for any decision refusing or renewing a residency permit. The competent authority must ensure that its refusal does not disproportionately infringe upon the individual’s right to respect for their private and family life. In decisions concerning a child, the child’s best interest is also considered when assessing any infringements on the fundamental rights of the involved parties.

A Constrained Competence

For certain residency permits, the administrative authority has a constrained competence.
For instance, when issuing permits that are granted as a right. However, there are a few exceptional cases of constrained competence when refusing to issue a residency permit, especially if there’s an unprovoked deportation order or a non-revoked ban from the
territory.

Refusal to Renew the Residence Permit:

• The refusal to renew the residency permit can occur for various reasons.
Firstly, the reasons for refusal align with those applicable to the permit issuance decision. Thus, renewal can be refused if it’s determined that the individual no longer meets the required conditions to hold the type of permit they already possess.
Additionally, the renewal can also be denied if it’s found that the foreigner hinders checks or investigations concerning the right to stay or fails to show up for appointments.

Form of Refusal:

• The decision to refuse the issuance or renewal of the residency permit can be explicit or implicit.
An explicit refusal will occur upon notification of a justified decision.

An implicit refusal decision will occur after a silence maintained by the administration. The time frame after which this refusal takes place depends on the type of residence permit requested. Generally, the decision of implicit refusal occurs after the administration has
been silent for four months.
However, for certain residence permits such as the talent passport for researchers, this period is extended to 60 days. For some talent passport permits for employees, students, job seekers, and au pairs, this period is extended to 90 days. In the case of an implicit
refusal decision, the individual can, within a period of two months from the date it takes place, request the reasons for the refusal. In this situation, the individual will have a new two-month period to lodge a legal appeal from the notification of the refusal reasons.
In the event of a refusal to issue or renew a residence permit, the foreigner is required to leave French territory, even if the refusal decision is not accompanied by an order to leave French territory.

Appeal Options

• Gracious Appeal (Le recours gracieux)
• The foreigner can directly approach the author of the act to request a reconsideration of the decision. The gracious appeal must be made within two months of the notification of the contested decision.
• The foreigner can use this appeal method to bring additional elements to the administrative authority’s attention, which may not have been necessarily considered during the initial review of the case.
• The timeframe for a contentious appeal is suspended until the authority delivers its decision in response to the gracious appeal.
• Hierarchical Appeal (Le recours hiérarchique)
• The foreigner can approach the hierarchical superior of the author of the act, but only in cases of explicit refusal decisions. In the case of the prefect, their hierarchical superior is the Ministry of the Interior.
• The hierarchical appeal must be made within two months following the notification of the contested decision.
• The timeframe for a contentious appeal is suspended until the authority delivers a decision in response to the hierarchical appeal.
• Contentious Appeal (Le recours contentieux)

• The foreigner can approach the administrative court to challenge a decision refusing the issuance or renewal of a residence permit.

The appeal must be filed within two months following the notification of the refusal decision or the emergence of the rejection decision, or if applicable, the decision in response to the gracious or hierarchical appeal.
The contentious appeal must adhere to very strict form conditions and must be filed before the competent court.
If the judge accepts the appeal, they will annul the refusal decision and order the administration to issue the requested residence permit to the applicant or to re-examine their situation.
The administration may also be ordered to pay the fees and expenses borne by the applicant.

Obligation to Leave French Territory

•What is the obligation to leave French territory ?

• The obligation to leave French territory (OQTF) is an administrative measure pronounced by the departmental prefect or, in Paris, by the police prefect. It targets foreigners staying in France irregularly. The OQTF is different from the prohibition to move within French territory, which only applies to European nationals.
• The OQTF decision can be accompanied by a return ban decision and a decision determining the destination country for the foreigner’s return. In some cases, the administration gives the foreigner a voluntary departure period of 30 days, allowing
them to leave the territory of their own accord. However, this option is excluded, especially if the administration believes there’s a risk that the foreigner will evade the execution of this measure.
• On the basis of an OQTF, the administrative authority can subsequently initiate a procedure for removal, expulsion, handover, or return to the border.

Bases for the Obligation to Leave French Territory

There are several grounds on which the administration can issue an OQTF. Firstly, the administration can issue an OQTF against a foreigner who entered French territory irregularly. However, regarding asylum seekers, this sole circumstance cannot justify the issuance of an OQTF.
Secondly, the OQTF can be issued against a foreigner who remains in French territory irregularly. A foreigner is considered to be staying irregularly if they do not hold a valid residence permit or receipt.

Thirdly, the OQTF can be issued concurrently with a decision to refuse issuance or renewal of a residence permit. This applies to decisions of implicit refusal in the same way as explicit decisions. Fourthly, the OQTF can be issued following the withdrawal or refusal
to renew a provisional stay permit.
Fifthly, concerning applicants for international protection, the administrative authority can only issue an OQTF once the decision to refuse protection becomes definitive.
Lastly, for a stay shorter than 3 months, the administration can issue an OQTF against a foreigner who poses a threat to public order or who is engaging in professional activity without authorization.

How to Challenge an Obligation to Leave French Territory ?

Administrative appeals (gracious or hierarchical) cannot be made against an OQTF decision. This can only be contested through contentious appeal before the court.
The appeal procedure available to a foreigner subject to an OQTF decision depends on the basis on which the measure was pronounced.

Time Limit for Appeals

a) Regarding the OQTF without a voluntary departure period

Appeals against OQTFs without a voluntary departure period must be filed within 48 hours of its notification.

b) Regarding the OQTF with a voluntary departure period issued based on 1°, 2°, 4°, 6° of Article L. 511-1 of Ceseda

If the OQTF decision with a voluntary departure period is issued based on the aforementioned provisions, the appeal must be filed within 15 days of its notification.

c) OQTF with a voluntary departure period issued based on 3°, 5°, 7°, 8° of Article L. 511-1 of Ceseda
If the OQTF decision with a voluntary departure period is issued based on the aforementioned provisions, the appeal must be filed within 30 days of its notification.

Contentious Appeal
For appeals subject to the 30-day appeal period, the standard contentious procedure applies.

There are certain relaxations in the procedure for appeals with a 15-day or 48-hour deadline.
The applicant can, in the same appeal, request the annulment of the decision to refuse the residence permit, the decision determining the destination country for return, as well as the decision to ban return or movement, just as with the OQTF decision.

Ban on Returning to French Territory

a) Overview

The ban on returning concerns only non-European foreign nationals. For European nationals, the movement ban applies. It is pronounced by the same authority that issued the obligation to leave the territory.
The maximum duration of the ban depends on whether the measure is pronounced by default or at the discretionary power of the administrative authority. However, in all cases, the duration can be extended, especially when the foreigner, subject to the ban, remained in the territory beyond their right.

The duration of the ban starts from the effective execution date of the OQTF or the date of the foreigner’s departure from French territory.

b) Revoking the Ban on Returning

The administrative authority can revoke the return ban at any time.

i) Revocation upon request
The foreigner residing outside of France can request the revocation of this return ban.

ii) Automatic revocation
The return ban can be automatically revoked in two scenarios. If, for the appeal filed by the foreigner, the decision refusing the issuance or renewal of the residence permit is annulled, the return ban will be automatically revoked. Moreover, if the foreigner proves
they have fulfilled the obligation to leave French territory within the allotted time, the return ban is also automatically revoked.

III. Appeal Against the Ban on Returning to French Territory
The ban on returning to French territory is generally contested in the same manner as the appeal against the OQTF.