HOMELESSNESS IN FRANCE
The research in relation to the French jurisdictional scope has been performed by Isabel San Martín (lawyer at King & Spalding).
1. IS THERE A LEGAL DEFINITION OF “HOMELESS PEOPLE OR PERSON” IN YOUR JURISDICTION. IF YES, WHERE IS IT REGULATED? HOW IS IT EVIDENCED?
No, in French law, there is no definition of “homeless people” with which a unitary legal regime could be associated.
In order to identify the complex phenomenon of “homelessness”, the National Institute of Statistics and Economic Studies (INSEE) has given a general definition of “homeless people”, which was since adopted by many French institutions, including the French Court of Auditors.
Those considered (and counted) as homeless people are those who spent the night before the survey in a place that is not intended for habitation, including overnight stays in places that are not equipped to have people sleeping there, or in an accommodation establishment (hotel or accommodation paid by an association, room or dormitory in collective accommodation, places exceptionally opened in circumstances of extreme cold). The concept is therefore quite broad as it also includes people who go from one accommodation to another without ever experiencing sleeping on the streets.
The definition proposed by INSEE is however not expressly embraced by French law. It is therefore advisable to refer to the meaning of each text to identify the category of persons concerned.
By way of illustration, the French administration has defined precisely, in the context of Law No. 2007-290 of 5th March 2007, what is to be understood by "people without a stable home" who might be entitled to have an administrative address (which is called “the domiciliation” procedure).
This concept designates any person who does not have an address where to receive and consult their mail in a constant and confidential manner. Thus, people whose main and permanent home is a mobile home, those who are temporarily accommodated by third parties, those who have recourse to emergency accommodation centers without continuity, those who live in shantytowns or squats, as well as homeless people living on the street are “without a stable home”, within the meaning of the law of March 5, 2007. In contrast, people stably accommodated by a third party or who benefit from a regular hosting scheme or a longer term one with certain organizations (non-profit organizations...) are excluded from this category.
2. DOES A LEGAL STATUS OF “HOMELESS PEOPLE” OR “HOMELESSNESS” INVOLVE A PARTICULAR OBJECT OF LEGAL PROTECTION? WHAT IS THE BASIC PROTECTION THAT IS RECEIVED IN YOUR JURISDICTION?
Yes, there is, first of all, a principle of unconditional rescue of homeless people, regardless of their administrative status.
This principle translates into emergency accommodation for all homeless people in distress. The emergency rescue measures, which allows to ensure shelter, food and hygiene, imply an immediate and unconditional support; only the distress criterion is to be taken into account. In addition, there is a continuity of care: the person rescued must be able to benefit from personalized support and remain there, for as long as they wish, until an orientation is offered.
The French Council of State recognizes the right to emergency accommodation as a fundamental freedom and opens the right to all homeless people to go before the Administrative Court to enforce that right. However, in order to appreciate the failure of state authorities in the implementation of this law, judges must consider the resources available to the administration, the age, the state of health and the family situation of the person concerned. In practice, the right to emergency accommodation therefore largely depends on the number of places available.
Furthermore, the principle of unconditional rescue of homeless people is not limited to access to emergency accommodation but must ultimately be oriented towards a stable solution, namely the access to decent and independent housing. Even if the French Constitutional Council did not give to the right to housing the value of a constitutional principle, which would thus be directly invocable by litigants, in 2007 the legislator nevertheless instituted the enforceable right to housing. The fact that it is an “enforceable” right means that homeless people have remedies to obtain its effective implementation, namely the existence of a remedy before a mediation commission, and then should that solution fail, before an administrative court.
This procedure has enabled 122,000 households to access housing in France and has led to major transformations in housing policies. However, 55,000 households recognized under the enforceable right to housing have been waiting for housing proposals for between 6 months up to 9 years.
In addition, the legislator has intended to create a specific procedure for the enforceable right to accommodation for people in need, before accessing independent housing, to go through an accommodation structure or transitional accommodation and thus benefit from significant social support. The implementation of the enforceable right to accommodation is however particularly alarming: in 2015, 10,000 appeals were lodged and less than 1,000 people were rescued.
Secondly, homeless people, regardless of their administrative situation, can be accommodated and hosted in medico-social establishments when their health needs are incompatible with life on the streets.
The establishments known as “health care beds” welcome adults whose state of health does not justify hospitalization but requires appropriate care, throughout the year, for stays of limited duration. This system provides health and social care for people whose homelessness hinders access to health. In practice, however, requests for admission far exceed the carrying capacity of the structures; nearly one third of cases are refused due the lack of available beds.
The establishments known as “medicalized rescue beds” welcome adults with no fixed abode, suffering from serious and irreversible chronic pathologies, sequelae or disabilities, with a more or less poor prognosis, which can lead to a loss of autonomy and which cannot be dealt with in other structures. They are open 24 hours a day, every day of the year. The duration of the stay is not limited and is adapted to the health and social situation of the person.
Lastly, there is a “domiciliation procedure”, which allows people who do not have a stable address to receive their mail but also to exercise their rights and access social benefits, provided however that they respect the specific conditions to each of these services.
The domiciliation, granted for a renewable period of one year, is a legal obligation whose effectiveness is ensured by the municipalities. The only condition for the admissibility of the request is that the person has stayed on the territory of the municipality, regardless of their mode of residence (homeless person living on the street, mobile residence, etc.) or a duration criterion.
The domiciliation condition does not automatically lead to access to social benefits. For example, with regard to the French Active Solidarity Income (this is a minimum income for people being disconnected from the exercise of a professional activity, which constitutes the main benefit perceived by homeless people in France), other conditions must also be met, in particular being 25 years of age, unless the applicant is responsible for one or more children born or to be born or if they can prove that they have worked for two years during the three years preceding the request.
3. ARE THERE SPECIFIC MEASURES THAT PROMOTE ACCESS TO AFFORDABLE HOUSING FOR HOMELESS PEOPLE? HOW IS IT REGULATED AND HOW SHOULD IT BE SHOWED?
In France, social housing application is conditioned to regular residence in France and based on means.
In addition, French law recognizes an enforceable right to housing. Thus, homeless people can go to a mediation commission if no suitable social housing has been offered.
This right is open to homeless people who:
Are French or have a right to residence or are in possession of a residence permit;
Cannot find a decent and independent accommodation on their own;
Meet the financial conditions required to access social housing.
If the mediation committee considers the request to be a priority, the prefect will have 3 months (6 months in “Île de France”) to offer suitable accommodation to the applicant. Failing this, the applicant may go to the administrative court. The procedure can be long since it can take up to more than a year.
Various establishments can also accommodate homeless people depending on their situation:
Emergency accommodation centers;
Maternal centers (reserved for pregnant women);
Homes for young workers;
Homes for migrant workers.
Finally, a five-year plan aiming at prioritizing housing and fighting homelessness was adopted by the government in 2017. Its ambition is to significantly reduce the number of homeless people by 2022 by favoring lasting solutions for the return to housing, rather than the multiplication of short-term accommodation responses.
The five years forecast of the plan provides for:
Building 200,000 homes for very low rent (40,000 per year);
The creation of 40,000 spaces in "rental intermediation" (an organisation guarantees the payment of rents and rental costs to landlords who agree to rent to people with low incomes);
The creation of 10,000 places in family homes for very poor single people.
Consequently, in 2018, 33,000 social housing units at very low rent were financed.
4. IS HATE CRIME SPECIFICALLY REGULATED AGAINST HOMELESS PEOPLE IN YOUR JURISDICTION? DO YOU KNOW ANY CASE?
No, this offense does not exist in the French Criminal Code, even though the National Institute of Statistics and Economic Studies (INSEE) notes, in a study published in 2015, that homeless people are eight times more likely to be victims of theft than people living in ordinary housing, and almost twice as much likely to be victims of assault.
However, the aforementioned study does not focus on the perpetrators and their motives for offenses carried out on homeless people, including the acts of hatred committed against them. More generally, the issue of violence against homeless people is still largely uncovered in France (most statistical surveys on violence against persons are conducted in people's homes, thereby excluding homeless people).
In France, the hate crime does not correspond to a specific criminal qualification. On the one hand, criminal law punishes hateful speech through the establishment of specific offenses, for example, racial slurs or racist defamation. On the other hand, criminal law punishes hateful acts or behaviors through the establishment of an aggravating circumstance.
Thus, the custodial sentences for offenses committed because of the victim’s ethnic background, nationality, their alleged race or religion, as well as because of their sex, sexual orientation or their actual or perceived gender identity, are aggravated. The precarious economic and social situation of the victims or their homelessness is not recognized as an aggravating circumstance.
To our knowledge, there has been no proposal to introduce a new aggravating circumstance to consider this latter type of situation. This observation includes the 2017 amendment of the Criminal Code which generalized the aggravating circumstances for all crimes and offenses punishable by imprisonment. Similarly, the recent decision of the French government to create a "national Office against hatred" has exclusively been driven by the resurgence in France of anti-Semitic and anti-Muslim acts.
To our knowledge, there is no case law regarding the application of an aggravating circumstance in the specific context of a hateful act committed against a homeless person. General criminal law therefore applies.
Homeless people can, however, be protected by criminal law as "vulnerable" people. Indeed, for certain types of offenses, the French Criminal Code retains a vulnerability cause based on the precariousness of the economic and social situation.
The vulnerability of the victims due to the precariousness of their economic and social situation has an important legal impact, since it can be raised as an aggravating circumstance when the perpetuator could not have ignored it (for rape, sexual assault, sexual harassment, sexist contempt) and may constitute a specific offense (regarding discrimination; for example, the refusal of care by a health professional towards a homeless person who benefits from universal health insurance, is likely to constitute an act of discrimination).
5. HAVE ANY SPECIFIC MEASURES TO PROTECT THE HEALTH OR FOOD RIGHTS OF HOMELESS PEOPLE BEEN APPROVED DURING THIS COVID-19 CRISIS?
Due to the ongoing health crisis, the French State has set aside a fund of several million of euros to increase the carrying capacity of the emergency accommodation system. Thus, several accommodation and confinement centers were opened, and several thousand of hotel rooms were provided during the health crisis to house homeless people.
Among the emergency accommodation sites, some were medicalized in order to accommodate homeless people who have gotten sick from COVID -19 and who did not require hospital care.
Moreover, the government has set up an exceptional service voucher distribution system (for a total of 15 million euros) enabling food and hygiene products to be purchased during the health crisis.
A food Aid Support Plan has been adopted. Its amount of 39 million euros is to be distributed as follows:
Financial support of €25 million for associations involved in food aid;
Emergency food aid for certain territories.
The President of the French Republic also announced in his speech of 13 April 2020 the payment of an exceptional aid to the most modest households.
In total, the State has set aside a fund of 65 million euros to finance these emergency measures intended to help homeless and low income people during the health crisis.
6. HAVE DATA ON TRANSPARENCY AND POSSIBLE CLAIMS FOR HOMELESS PEOPLE IN PARTICULARLY VULNERABLE SITUATIONS BEEN PROVIDED?
A number of public administrations websites provide information and guidelines to homeless people explaining how to secure a “domiciliation,” obtain various social benefits, access shelters or even store their belongings.
Moreover, in several French cities, and in particular in Paris, there is a municipal humanitarian emergency service (“SAMU Social”) which role is to provide assistance to homeless people in vulnerable situations. There is a national free emergency hotline (115) that homeless people can dial to obtain information and assistance. This hotline provides all sorts of information, from available shelters and places where to eat, to administrative information about available social benefits. The SAMU Social also organizes regular street patrols to identify people in vulnerable situations and offer assistance.
7. HAS ANY LEGAL ACTION BEEN TAKEN TO PROTECT PARTICULARLY VULNERABLE PEOPLE FROM BECOMING HOMELESS?
Firstly, the recognition of an enforceable right to housing as detailed in question 3.
Additionally, the winter break (prohibition of eviction measures during the winter season, usually from the 1st of November to the 31st of March) has been extended until July 10, 2020. Consequently, no tenant eviction can take place during this period.
In Paris, it has been extended until October 31, 2020 for social housing tenants. As a result, they could not be evicted before the 31st of March 2021 (thanks to the winter break 2020-2021).
As mentioned in response to question No. 2, homeless people can obtain a domiciliation from municipal social action centers, in accordance with the Social Action and Family Code. That domiciliation will last for one year. Homeless people will need to fill in a form and submit it to the relevant municipal social action center, and the center needs to respond within 2 months.
It is also worth noting a relevant case on the state of necessity of homeless people. In late 2007, two NGOs had organized a street camp to shelter approximately 1,500 homeless (or poorly housed) people in Paris. In 2008, a judge ordered the confiscation of the tents and fined the two NGOs on the ground that they had abandoned “inconvenient unnecessary objects” on the public space, which is prohibited by Article R-644-2 of the French Criminal Code. The two NGOs invoked the notion of “state of necessity” (which is a justifying factor under French criminal law pursuant to Article 222-7 of the Criminal Code), but this defense was not sustained by the judge. However, the decision was ultimately overturned by the Court of Appeal, highlighting the existence of the state of necessity which exonerated the associations from criminal responsibility. in 2009 on the ground that tents must be considered as residences (“domicile”).