CAA Nancy, 9 December 2013, No. 12NC01705
The obligation to leave French territory, more commonly known as an OQTF, is currently one of the main removal measures that may be taken against a foreign national who does not, or no longer, have the right to reside in France.
This administrative decision may apply in various situations provided for by the Code on the entry and stay of foreign nationals and the right to asylum (CESEDA). It may in particular be imposed when a foreigner has had their application refused or withdrawn a residence permit from, when they are in an irregular situation or in certain circumstances relating to an application for asylum.
However, the procedure governing OQTF orders has undergone significant changes in recent years. The recodification of the CESEDA, which came into force on 1 May 2021, followed by Law No. 2024-42 of 26 January 2024 and the decrees issued in 2024 and 2026, have profoundly altered the legal proceedings relating to removal measures.
Case law relating to the right to be heard remains, nevertheless, of fundamental importance. The Nancy Administrative Court of Appeal had already emphasised, in a judgement of 9 December 2013, that a foreign national must be able to put forward their views in a meaningful and effective manner before a decision is taken that is likely to adversely affect them.
The right to be heard before an OQTF order is made
The right to be heard constitutes an important guarantee for any foreign national who is the subject of a proceeding that may result in a removal order.
This principle stems, in particular, from European Union law and the right to a fair hearing. It implies that the person concerned must be able to put forward their views in a meaningful and effective manner before the administration takes a decision against them.
In its ruling of December 9, 2013, No. 12NC01705, the Cour administrative d’appel de Nancy thus recalled, by referring to the case law of the Court of Justice of the European Union, that the administration must allow the person concerned to submit written or oral observations before the adoption of a decision likely to adversely affect them.
However, this guarantee does not mean that the Prefect would be systematically obliged to summon the foreign national to a face-to-face interview.
The failure to hold an interview does not automatically constitute a breach of the foreign national’s rights
The right to be heard should not be equated with an automatic right to an interview with the prefectural authorities.
Case law holds that the authorities are not necessarily obliged to organise a hearing of their own accord prior to every removal decision. The key point is that the foreign national must have been given the opportunity to present, in a meaningful way, any evidence likely to influence the proposed decision.
This distinction is particularly important in practice. A foreign national cannot, therefore, automatically have an OQTF annulled on the sole ground that they were not summoned to a specific interview prior to its issuance.
The administrative judge examines, in practical terms, the conditions under which the person concerned was able to put forward their views and the circumstances of the proceedings.
The Council of State has recently confirmed this approach, notably in its case law concerning the right to be heard prior to an OQTF. The authorities must allow the foreign national to present their views effectively, but they are not obliged to systematically organise a further hearing where the individual has already been given the opportunity to put forward their observations. This recent case law must now be given precedence over the earlier decisions from 2013 alone.
An OQTF must be subject to an individual assessment
The Prefect cannot issue an OQTF purely as a matter of routine.
The authorities must carry out a specific assessment of the foreign national’s personal circumstances before reaching a decision. This obligation applies in particular to factors that may affect the right of residence or the feasibility of removal.
Family circumstances, the length of residence in France, personal and family ties, employment status, administrative status, or any special circumstances put forward by the person concerned may therefore be taken into account.
It is therefore in the foreign national’s best interests to provide the prefecture with documents that establish their actual circumstances. Proof of residence, documents relating to family life, proof of employment and details regarding their children’s schooling may, in particular, be useful.
A failure to carry out a thorough and specific assessment of an individual’s personal circumstances may, depending on the circumstances, constitute a ground that can be raised before the administrative court.
In what circumstances can an OQTF be imposed?
The current scheme is set out mainly in sections L. 611-1 et seq. of the CESEDA.
Article L. 611-1 sets out various situations in which the administrative authority may require a foreign national to leave French territory. The applicable rules therefore depend on the legal basis invoked by the prefect and on the administrative status of the person concerned.
It should also be noted that certain individuals are afforded special protection against removal. For example, Article L. 611-3 of the CESEDA stipulates that a foreign national under the age of eighteen may not, in principle, be subject to an OQTF.
An analysis of the legality of an OQTF therefore requires a detailed examination of the legal basis set out in the prefectural order, as well as the foreign national’s personal circumstances at the time the decision was made.
An OQTF may be accompanied by a period for voluntary departure
When an OQTF is imposed, the authorities may grant the foreign national a period within which to leave voluntarily.
In this case, the person concerned has a certain period of time in which to organise their departure from France. However, the appeal procedure applicable to the decision must be carefully checked, as the rules have been amended since 2024.
Act No. 2024-42 of 26 January 2024 has radically reorganised the litigation process for removal orders, with the new litigation framework coming into force on 15 July 2024. Article L. 614-1 of the CESEDA provides, in particular, that the OQTF (obligation to leave the territory) and, where they accompany it, decisions relating to residence, the period for voluntary departure and the re-entry ban may be challenged before the administrative court in accordance with the applicable procedure.
It is therefore essential to consider not only the date of the OQTF, but also the grounds on which it was issued, the procedure for serving notice and the foreign national’s administrative status.
An OQTF order may be issued without a period for voluntary departure
In certain situations, the Prefect may decide that the foreign national must leave the country without being granted a period for voluntary departure.
This situation has significant implications in terms of litigation.
Where an OQTF is served by administrative means without a period for voluntary departure, the time limit for lodging an appeal may, in particular, be extremely short. The provisions set out in the CESEDA and the Code of Administrative Justice provide, in such cases, for a period of forty-eight hours to challenge the OQTF and the accompanying decisions.
This time limit must be distinguished from the other appeal procedures provided for under the CESEDA. It is therefore particularly dangerous to assume that all OQTF orders are subject to the same time limit for appeal.
A major reform of legal proceedings relating to OQTF orders in 2026
The law applicable in 2026 must also take account of the changes that took place in June 2026.
Decree No. 2026-455 of 6 June 2026, amongst other things, amended certain procedural rules in order to take account of developments in the European framework on asylum and migration. These provisions have amended the litigation regime applicable to certain OQTF orders, in particular those issued pursuant to Article L. 611-1(4) of the CESEDA, in certain situations relating to an asylum application.
The rules governing appeals to the Administrative Court are therefore particularly technical at present. Certain procedures lay down specific time limits and different procedures for reaching a judgement, depending on the foreign national’s circumstances.
This development makes it essential to examine the prefectural order in its entirety before determining the time limit for lodging an appeal.
An appeal against an OQTF
A foreign national wishing to challenge an OQTF must bring the matter before the relevant administrative court within the time limit applicable to their situation.
The appeal may relate to several decisions where they were made simultaneously: the OQTF itself, the refusal or withdrawal of a residence permit, the decision refusing a period for voluntary departure, the designation of the country of destination, or the ban on re-entry into French territory.
Article L. 614-1 of the CESEDA currently governs this relationship between the various administrative decisions.
The procedure to be followed depends, in particular, on whether or not the person is subject to house arrest or detention, as well as on the legal basis for the OQTF.
When a foreign national is placed in administrative detention, specific procedural rules apply. In particular, the CESEDA provides for procedures enabling the administrative court to rule within particularly short timeframes.
What arguments can be put forward against an OQTF?
An appeal against an OQTF may be based on various grounds, which must be assessed in the light of the foreign national’s specific circumstances.
In particular, it may be possible to challenge the jurisdiction of the decision-maker, the grounds for the order, the failure to give specific consideration to the individual’s personal circumstances, or an error of law.
A failure to observe the right to be heard may also be invoked where the foreign national was not effectively given the opportunity to present his or her views in a meaningful way.
Other grounds may arise from a failure to take account of the provisions of the CESEDA or the relevant international conventions, in particular where removal would constitute a disproportionate interference with the private and family life of the person concerned.
The administrative judge then carries out a substantive assessment of the evidence in the case file and the specific circumstances of each case.
The ban on re-entry into French territory
An OQTF may also be accompanied by a ban on re-entry into French territory (IRTF).
This measure prohibits the foreign national concerned from legally re-entering French territory for the period specified by the authorities. The terms of the order depend, in particular, on the circumstances in which the OQTF was issued and on the individual’s circumstances.
The CESEDA sets out specific rules, in particular, where a foreign national has remained in the country unlawfully beyond the deadline for voluntary departure or where they have been subject to an immediate OQTF. In certain circumstances, the re-entry ban may be extended within the limits laid down by the Code.
The IRTF must therefore also be examined when challenging the prefectural order.
Why should you consult a solicitor as soon as possible if you are subject to an OQTF?
An OQTF is a particularly significant administrative decision, which is likely to have major consequences for the foreign national’s personal and family circumstances.
The difficulty also lies in the time limits for lodging an appeal, which can be extremely short and vary depending on the applicable procedure. The reform that came into force in 2024 and the further amendments introduced in 2026 mean that a general statement to the effect that an OQTF must always be challenged within a specific time limit is no longer sufficient.
Upon notification of the prefectural order, it is therefore necessary to identify precisely the nature of the measure, its legal basis, whether a period for voluntary departure has been set, the conditions of notification, and any additional measures.
A quick analysis also makes it possible to identify any procedural irregularities, errors of law, errors of assessment or disproportionate infringements of the foreign national’s rights.
Have an OQTF reviewed without delay
The case law of the Nancy Administrative Court of Appeal of 9 December 2013 remains of particular interest for understanding the scope of the right to be heard, but it is no longer sufficient to describe the law in force applicable to OQTFs in 2026.
The current legal framework stems from a series of more recent legislative provisions and case law, notably the recodification of the CESEDA, the Act of 26 January 2024 reforming litigation relating to foreign nationals, and the regulatory amendments introduced in June 2026.
In practice, anyone subject to an OQTF must therefore act swiftly. They must check, without delay, that the procedure has been followed correctly, that the decision is properly reasoned, that their personal circumstances have been taken into account, and that the applicable time limit for appeal has been observed, in order to safeguard their rights.
The CARREZ law firm, based in Nice, assists foreign nationals facing an OQTF and can assess the validity of the prefectural decision, as well as the options for appealing to the administrative court.
