No, the State cannot always require users to complete administrative procedures online

Alexander Boero

June 03, 2022 at 6:50 p.m.


Council of State © Council of State

© Council of State

This Friday, the Council of State issued a decision which lays down the principle and the exceptions on the obligation to carry out administrative procedures online, in particular for foreigners who wish to stay in France.

The government had decided, in the spring of 2021, to require foreigners seeking a residence permit in France to submit their application online, via a teleservice, with a gradual entry into the system in the following weeks. . The foreign aid associations then railed against the measure and demanded from the Council of State its pure and simple cancellation. In response, the court decided to propose an adjustment, a kind of compromise.

For the Council of State, it is possible to make teleservice compulsory, but not at any price

The litigation section of the Council of State and its court formation, which deals with cases that raise a new question of law, therefore ruled through two decisions. These were made public this Friday, June 3 and can set a precedent. Several associations, including La Cimade, the Human Rights League, Secours Catholique Caritas France, UNEF and the Syndicate of Lawyers of France, contested the decrees of March 24, 2021 and May 19, 2021 as well as the decree taken in the meantime, dated April 27 the same year.

The highest administrative court in the country considers, in principle, that the government can very well make the use of a teleservice compulsory to carry out administrative procedures with the State. We are talking about the principle here. The judge adds that this obligation “ does not come within the scope of the law ” and that'” no constitutional right or principle opposes it “.

But the Council of State tempers things. It specifies that this obligation cannot be imposed if the user is not guaranteed normal access to the public service or effective exercise of his rights.

In other words, the Council of State asks the administration to take several things into account, such as the nature of the process, which is dematerialized. It must also consider its degree of complexity, the characteristics of the digital tool proposed as well as those of the public concerned. In other words: the State cannot close its eyes to the difficulties of access or use of online services that users may suffer.

The administration must offer foreigners an alternative to teleservice

Under what conditions can the State impose the compulsory use of a teleservice for applicants for residence permits? The Council of State, which recognizes a particularly complex and sensitive approach here, sets out two, each of which contributes to setting a general framework in the matter.

First, users who do not have the possibility of having access to digital tools (smartphone, PC and others) or who experience difficulties in their use must be supported. This is the first condition laid down. But some applicants may be unable, despite this support, to use the teleservice, whether because of the mode of operation of the teleservice or its design. So, the Council of State imposes a second condition which consists, for the administration, in proposing to these users an alternative solution.

The court justifies these two conditions to take into account the various characteristics and particular situations of foreigners who apply for a residence permit and who could, in fact and because of their difficulties, lose the right to remain in the territory if their application is not was not recorded.

Today, the government responds well to one of these conditions, in that it provides support for teleservice users. However, it does not provide for an alternative solution that could be proposed in the event of a failure related to the mode of operation or the making of the teleservice. The Council of State thus saw fit to judge, through these two decisions, that the government must complete its texts in order to put in place this alternative solution.

So, what will happen, while waiting for the latter to be put in place, if a foreigner does not manage to file his application through the teleservice imposed by the government? ” The administration will be required, by exception, to allow the filing of the latter according to another method. “Writes the administrative institution, which therefore sides with the associations.

The Council of State, which also answers a question posed by the administrative court of Montreuil and that of Versailles, specifies that the prefects could not make the use of teleservices compulsory for the filing of residence permit applications, and this, before the entry into force of the decree of March 24, 2021. It should be noted that this decree was canceled by the administrative jurisdiction.

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