In the spring of 2021, the French Government decreed that foreign nationals wishing to obtain a residency permit in France must apply online through a “teleservice.” It was the government’s intention to bring this new provision into force in incremental steps (Decree No. 2021-313 of 24 March 2021, Order of 27 April 2021, Order of 19 May 2021). Several foreign nationals’ welfare organisations appealed to the Conseil d’Etat to rescind this decree.
The Conseil d’Etat’s Administrative Claims Department, a judgement formation that mainly deals with matters pertaining to new laws, convened to examine the appeal lodged by the associations.
A teleservice may be compulsory, but there must be some guarantees
The Conseil d’Etat ruled that, in general terms, the Government could require citizens to use a teleservice to fulfil government administrative procedures. This obligation is not a matter reserved for law and there is no law or constitutional principle against it.
However, the Conseil d’Etat stipulated that an obligation of this sort could only be made compulsory if users’ normal access to the public service and the effective exercise of their rights were guaranteed. This requires the Government to take into account the nature of the process to be carried out online, its degree of complexity, the features of the proposed digital tool and the characteristics of the relevant public, including the difficulties they may have accessing or using online services.
For processes that are particularly complex or sensitive, the text requiring the compulsory use of a teleservice must provide an alternative solution. This is the case for residency permits.
The Conseil d’Etat set two conditions upon which the Government could legally make the use of a teleservice for residency permit applications compulsory. Firstly, users who do not have access to digital tools or who have difficulty using the tool must receive support. Secondly, if it becomes apparent that some users cannot use the teleservice despite this support, due to its design or mode of operation, the administration must guarantee an alternative solution. These conditions aim to take into account the specific circumstances and the nature of foreign nationals applying for residency permits, who could lose the right to remain in France if there is no record of their application.
Although the Government currently plans to provide support for teleservice users, it does not plan to provide an alternative solution in the event of a failure to use the teleservice due to its design or mode of operation. The Conseil d’Etat therefore ruled that the Government must amend its texts to include such an alternative solution. Meanwhile, if a foreign national cannot file their application through the teleservice for these reasons, the administration must allow the application to be made by some other means, on an exceptional basis.
Finally, in response to a question from the administrative court of Montreuil and the administrative court of Versailles, the Conseil d’Etat specified that prefects could not make the use of teleservices for residency permit applications compulsory before the order came into force on 24 March 2021.