Facing a refusal of a residence permit and an OQTF based on a threat to public order

Facing a refusal of a residence permit and an OQTF based on a threat to public order

Under the French Code on Entry and Residence of Foreign Nationals and Asylum Law (CESEDA), in particular Articles L. 611-1 et seq., the prefectural authorities may accompany a refusal of a residence permit (Article L. 412-5 of the CESEDA) with an obligation to leave French territory when the foreign national’s presence constitutes a threat to public order.

What is meant by a threat to public order?

The CESEDA does not provide any definition of a threat to public order, nor does it list any specific reprehensible behaviour. This absence of a definition gives prefectural authorities broad discretion, allowing them to rely on this sole ground to refuse or withdraw a residence permit — and to issue an OQTF alongside it. Several grounds have already been used by prefectures, including domestic violence, driving without a licence, drug use, possession of a bladed weapon, and others.

It should also be noted that this ground is being relied upon increasingly frequently, precisely because it does not require particularly detailed evidence.

A refusal based on a threat to public order: possible, but subject to conditions…

Although the prefecture may justify a refusal of a residence permit or an obligation to leave French territory on the basis of a threat to public order, it must nevertheless carry out an individual assessment of the foreign national’s personal situation, particularly with regard to their private and family life.

What does case law say?

In its judgment of 11 June 2015 (Zh. and O, C-554/13), the Court of Justice of the European Union recognised the need for Member States to carry out an individual assessment of the situation, taking into account the reality, seriousness and current nature of the threat.

In practice, this standard is not always complied with. Many cases involve refusals based on old criminal convictions, cases dismissed without further action, or information contained in the TAJ (Judicial Record Processing System) — a police database whose use by prefectural authorities is nevertheless regulated. Case law is also consistent on this point: the prefect cannot rely solely on these elements without examining the individual’s actual situation and complying with a strict procedure.

A decision of the French Council of State dated 20 February 2025 (No. 498964) specifies that judges must carry out a thorough and personalised assessment: the nature of the acts, their age, their seriousness, and the proportionality of the measure in light of the individual’s overall situation. The prefect must therefore determine concretely whether the threat is current and whether it justifies an removal measure. This is not a new principle in case law, but its reaffirmation is welcome.

Administrative courts frequently overturn prefectural decisions based on a threat to public order, particularly when the foreign national has strong family ties in France (parent of a French child, spouse of a French national, etc.).

What can be done?

Such decisions are not beyond challenge. There are serious grounds for annulment, particularly regarding the lack of proportionality with respect to private and family life, as well as the absence of a sufficient legal basis.

The Lexstone Avocats law firm, located in Puget-sur-Argens and Rocbaron, and in particular Maître Josselin BERTELLE, regularly assists foreign nationals throughout the Var region, both in advisory matters and administrative litigation.

Whether you wish to challenge a refusal of a residence permit or an OQTF based on a threat to public order, Lexstone Avocats supports you in seeking the annulment of the decision and the removal of your judicial records.