In spring 2021, the Government has imposed foreigners wishing to obtain a residence permit in France to submit their application online, via a teleservice, while providing for a gradual entry into force of this new system. Several foreigners' aid associations had asked the Council of State to cancel this measure.
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"Making a teleservice mandatory is possible, but with guarantees"
The Conseil d'État ruled that that, in general, the obligation to use a teleservice to complete administrative procedures with the State may be introduced by the Government. This obligation does not fall within the domain reserved to the law, and there is no constitutional right or principle to prevent it.However, the Council of State specifies that such an obligation can only be imposed if users' normal access to public services and the effective exercise of their rights are guaranteed. To this end, the administration must take into account the nature of the procedure that is being dematerialized, its degree of complexity, the characteristics of the digital tool proposed, as well as those of the public concerned - in particular, difficulties in accessing or using online services.
For certain particularly complex and sensitive procedures, the text that imposes the mandatory use of a teleservice must provide an alternative solution: this is the case for applications for residence permits.The Conseil d'Etat sets two conditions for the obligation to use a teleservice for residence permit applications to be legal:
- " Users who do not have access to digital tools, or who encounter difficulties in using them, must be supported;
- if it appears that some users are unable, despite this support, to use the teleservice, for reasons related to its design or its mode of operation, the administration must guarantee them an alternative solution.
Currently, while the Government provides for support for users of the teleservice, it does not provide for an alternative solution in the event of a failure related to the design or operation of the teleservice. The Conseil d'Etat therefore considers that the Government must complete its texts to provide for the existence of such an alternative solution. In the meantime, if a foreigner is unable to submit his application via the teleservice for such reasons, the administration will be required, by way of exception, to allow the application to be submitted using another method.
Finally, the Conseil d'Etat clarified, in its response to a question posed by the Montreuil Administrative Court and the Versailles Administrative Court, that prefects could not make the use of teleservices mandatory before the Decree of March 24, 2021, for the filing of applications for residence permits.
Référence :
A much commented decision, which is a milestone
This decision, sometimes described as "historic ", has given rise to many comments.- La Gazette des Communes: Mandatory Teleservice: why the decision of the Council of State marks a turning point
- Banque des territoires: The Conseil d'État sets limits to the imposed dematerialization
- Le Monde : Online procedures for foreigners: the Council of State rejects the Government
- Cimade: the Council of State sanctions the illegal dematerialization of residence permit applications
- Acteurs Publics : The Ministry of the Interior reminded of the dematerialization of procedures
A recommendation taken up in 2019 in a report by the Human Rights Defender devoted to the dematerialization of administrative procedures and to be repeated in 2022 A recommendation taken up again in 2019 in the report of the Defender of Rights dedicated to the dematerialization of administrative procedures: "to guarantee several modalities of effective access to public services so that no administrative procedure is accessible only by dematerialized means".
