In principle, the exercise of his civil, political and social rights is attached to the domicile.
As a result, the benefit of social benefits provided by the family allowance funds (CAF) and the agricultural social mutual funds (MSA) on behalf of the State depend on the place of residence.
- family benefits: API, RMI, allowance for disabled adults (AAH), return-to-work bonus and flat-rate bonuses paid to RSA beneficiaries, etc.;
- benefits provided by old-age insurance (retirement pensions and minimum old-age pensions);
- affiliation to a social security scheme and complementary universal health coverage;
- allowances provided by ASSEDICs (return-to-work assistance allowance, specific solidarity allowance, temporary waiting allowance, retirement equivalent allowance);
- legal social assistance benefits financed by the departments (social assistance for the elderly and disabled people, RSA, personalized autonomy allowance, compensation benefit, etc.).
Without an address, no access to social "minima". Thus, people who are homeless or “stable” are not only marginalized, they are deprived of their most basic rights. And this also concerns Travelers, foreigners, detainees ...
For a very long time, there were certainly scattered measures but contradictory and difficult to implement. A difficulty solved by a whole set of texts taken within the framework of the effectiveness of the right to housing.
From now on, the domiciliation of homeless people is governed by:
- Decree n ° 2007-893 of May 15, 2007,
- Decree n ° 2007-1124 of July 20, 2007 (domiciliation of homeless people).
- DGAS / MAS circular n ° 2008-70 of February 25, 2008
- Circular DGCS / 1A n ° 2010-271 of July 16, 2010, relating to the national reference system for the services of the reception, accommodation and integration system.
Therefore, in the absence of a domicile, the public authorities have had the obligation to provide homeless people with a domicile address so that they have access to all social rights, legal aid, the issuance of identity documents, registration on the electoral roll, opening a bank account ... In short, everything that conditions the social existence of an individual.
But to benefit from a direct debit, several conditions must be met.
The people concerned
According to article L 264-1 of the Code of social action and families specifies that “The beneficiaries of the right to domiciliation are people without a stable domicile. ".
And the circular of February 25, 2008 specifies that this concerns "people who live in an itinerant way, those who are accommodated in a very temporary way by third parties, those who use emergency accommodation centers inconstantly are homeless. within the meaning of the law of March 5, 2007 ”.
Have a sufficient link with a municipality
It does not matter whether the person is already installed or intends to settle in a municipality, article D 264-4 of the code of social action and families specifies that there will be a sufficient link in case :
- exercise of a professional activity;
- benefit from an integration action in the territory of this municipality;
- exercise of parental authority over a child who is educated there;
- the presence of family ties in the municipality (family having lived there or who still live there), friendly ties;
- accommodation with a person living in the municipality;
- procedures carried out with institutional and associative structures (emergency accommodation centers, homes, social landlords, social institutions, job searches, administrative procedures, care, social monitoring, etc.).
According to the circular of February 25, 2008, "the link with the municipality or the grouping of municipalities can be attested by any means". As a result, all certificates and documents concerning the procedures carried out in the municipality will be taken into account.
The effectiveness of the domiciliation
Domiciliation is a legal obligation, the effectiveness of which is ensured by the municipalities. Article L 264-96 requires them to draw up a list of approved organizations providing domiciliation in the department.
If the municipality did not comply with it, the circular of July 16, 2010 provides that "the delegates of the Mediator of the Republic can be contacted when difficulties are noted in the effective access to fundamental rights of the most excluded people (social benefits, coverage of care, right to housing, domiciliation, etc.) ”.
According to Articles L. 264-1 et seq. Of the Social Action and Families Code, each homeless person must have access to a domiciliation close to their place of life with the CCAS, domiciliating organizations, associations, etc.
In the event of a breach, it will also be possible to refer the matter to the prefect as soon as article L 264-14 of the code of social action and families provides that it is up to the prefect of the department to ensure "the proper functioning domiciliation service ”.
Condition for exercising domiciliation
The main objective of the direct debit is to allow everyone to receive and consult their mail on a constant basis. But that doesn't come down to a simple statement in a letterbox. Every person must benefit from an environment favorable to the consultation of his mail of which “the confidentiality of the exchanges and the individualization of the service” are guaranteed by textual provisions.
It is an opportunity to create a bond with isolated people. On this point, the circular of 2010 gives very precise indications on the manner and the conditions of reception of people without stable residence.
According to the texts, this domiciliation service set up by the CCAS or domiciliary organizations must:
- Ensure the reception, classification, storage and distribution of mail in an individualized manner: suitable places and furniture;
- Have warm, comfortable premises with soundproofing, specifically dedicated to this activity;
- -Promote a good management of the reception and distribution of mail using computer / office equipment;
- Formalize and present to people a domiciliation regulation, specifying the duration of the election of domicile and the terms of termination;
- Formalize and make known to the interveners the procedures concerning the delivery of mail: ensuring the identity of the person, the use of powers of attorney;
- Formalize and inform stakeholders of the procedures concerning the receipt, retention of mail and the termination of the direct debit;
- Facilitate access to these services in the territories;
- Allow local access and the harmonization of practices thanks to an adapted territorial organization;
- Provide extensive information on the operating methods of the direct debit system;
- Involve users in the organization and evaluation of the service;
- Regularly solicit the opinion of users on the operation of the service;
- Involve users in the development or evolution of the domiciliation regulations;
- Have staff trained in welcoming and listening; Ability to listen, dialogue, sense of organization, self-control. Qualities of discretion and friendliness;
- Provide training for stakeholders in the use of IT tools;
- Allow access to translators. "
Duration of domiciliation
The domiciliation is temporary. Article D 264-1 of the Social Action and Families Code provides that it may be granted for one year.
The domiciliary body may terminate the domiciliation before the year when the person:
- has found a stable home
- no longer occurs for 3 consecutive months, except for professional or health reasons (article D. 264-3 of the code of social action and families)
Rejection of a direct debit request
People who do not have a sufficient link with the municipality or group of municipalities will be refused access to the domiciliation.
It is not enough to be just passing through, or to have landed by chance in a municipality to be able to be domiciled there. You have to have stopped there (even a little), have taken steps, have friends, family ...
The CCAS or the organization has the legal obligation to render a reasoned refusal decision and to address the applicant to a structure which can domicile him.
Obligations inherent in domiciliation
The homeless person will have rights but also obligations related to his attendance and behavior.
It emerges from the texts and in particular from the circular of July 16, 2010 that the person must:
- Regularly collect your mail, ie at least every three months.
- Inform of any changes relating to his situation.
- Respect the domiciliation regulations of the host structure.
The specific provisions governing domiciliation
The circular of February 25, 2008 provides that a "homeless person holding a certificate in respect of the asylum request (peut) take up residence under common law conditions to benefit from one of the services mentioned in Article L. 264-1 of the CASF as long as it meets the conditions (temporary waiting allowance, universal health coverage). Thus, an asylum seeker can quite easily take up residence with a CCAS (or CIAS) or an approved body to be able to benefit from the temporary waiting allowance. ".
Foreigners in a regular situation
They benefit from domiciliation under the same conditions as a national of a Member State of the European Union, of the European Economic Area or of the Swiss Confederation.
Foreigners in an irregular situation
According to the circular of February 25, 2008: “Foreigners in an irregular situation may request to take up residence in order to have access to state medical aid within the framework of the specific provisions provided for in article L. 252-2. of the social action and families code, under the same conditions as before the 2007 reform. As such, they will receive a certificate of domiciliation different from that mentioned in article L. 264-2 of the CASF. "
Note the provisions relating to legal aid for foreigners in an irregular situation and set out below:
According to the circular of February 25, 2008 "Pursuant to article 3 paragraph 3 of law n ° 91-647 of July 10, 1991 relating to legal aid, legal aid may be granted on an exceptional basis to persons of national nationality. foreign nationals who do not reside regularly on French territory, when their situation appears particularly worthy of interest with regard to the subject of the dispute or the foreseeable charges of the trial.
However, in application of article 13 of the said law, people without a stable domicile can file a request for legal aid at the seat of the court in whose jurisdiction is the body which issued them an election certificate. of domicile under the conditions provided for in Chapter IV of Title VI of Book II of the Code of Social Action and Families.
Consequently, foreigners in an irregular situation and without a stable domicile may be issued with the certificate mentioned in article L. 264-2 of the CASF for the benefit of legal aid. "
The circular of February 25, 2008 specifies that “the application of the domiciliation rules must in no case be done according to ethnic or cultural criteria. Membership of the Travelers' community therefore does not as such imply going through a domiciliation procedure. For Travelers as for other people, it is a material criterion that must be applied: the fact of being homeless or not. “Travelers” having a sedentary lifestyle are not intended to be domiciled. "
To fully understand the reasoning of the public authorities, we must return to the legislation on Travelers.
Indeed, the 2008 circular refers to law n ° 69-3 of 3 January 1969 relating to the exercise of itinerant activities which governs the situation of travelers:
“In application of the law of 1969, people who have neither a domicile nor a fixed residence for more than 6 months and who apply for a traffic permit must choose a local municipality. The regulations resulting from the domiciliation reform however apply to these people under the conditions of common law.
The only specificities are as follows:
- for access to all social benefits, people covered by the law of 1969 can elect domicile in the municipality of their choice, as is the case since the law of 17 January 2002 on social modernization. This municipality can be the attached municipality, but it can also be another municipality;
- on the other hand, for registration on the electoral rolls or for the benefit of an identity card, they must carry out these procedures in their home municipality.
Travelers cannot be domiciled in the municipality of their “choice” since they depend on the attached municipality which issued them the traffic booklet. An obstacle to the freedom to come and go recognized by all the texts of fundamental rights.
To note :
This law of 1969, regularly called into question, includes many discriminatory measures for travelers (obligation of a local municipality, obligation to hold a traffic book). Several amendments have been tabled to repeal it, with little success.
The last attempt, of which we take up the reasons below, was presented to the National Assembly on June 6, 2016:
“The 1969 law has been denounced on several occasions by almost all national, European and international human rights bodies: the HALDE (deliberation of December 17, 2007), the Defender of Rights (November 24, 2014), the Commissioner of Human Rights of the Council of Europe (February 17, 2015), the United Nations Committee on the Elimination of Racial Discrimination (in August 2010), the United Nations Human Rights Committee (March 28, 2014) and the CNCDH (in 2008 then 2012).
In October 2012, the Constitutional Council censored the traffic log, which imposed very strict control on the most disadvantaged (quarterly visa from the authorities, offense of traveling without a permit) and the condition of three years of uninterrupted attachment to a municipality in order to be register on the electoral roll. He has however maintained the traffic booklet, valid for five years, which must be endorsed annually by the authorities and the provisions relating to the municipality of attachment, of which travelers do not have the freedom of choice.
In a judgment of November 19, 2014, the Council of State, if it kept the traffic log, considered that the provisions of the 1970 decree, which punished with a fine people who circulate without having been issuing a special traffic book infringed the exercise of freedom of movement.
Consequently, if the legal obligation remains for Travelers to hold, present and have this travel document stamped, the penalties for their omission are no longer applicable.
It is finally time to put an end to this discriminatory measure which has become unnecessary. "
Detained persons can be domiciled
- Mainly outside the penitentiary establishment
Domiciliation is carried out under the conditions of common law studied above, that is to say with a Communal Social Action Center (CCAS), or an Intercommunal Social Action Center (CIAS)
According to the note of March 31, 2015 “the functional directors of the penitentiary integration and probation services (DFSPIP) must enter into agreements with the CCAS, CIAS or approved organizations in order to set the terms of intervention of these partners and to promote their action in this area. Any difficulty in accessing the law of domiciliation with common law organizations may usefully be brought to the attention of the territorial representative of the defender of rights. "
- Subsidiarily with the penitentiary establishment
If the detained person cannot be attached to any body of common law, the penitentiary law of November 24, 2009 specifies in its article 30 that the domiciliation must be made with the penitentiary establishment.
To note :
These provisions do not concern:
- adults in detention who benefit from a protection regime (guardianship guardianship safeguard of justice, whose domiciliation follows the provisions of common law (at the curator, the guardian…);
- minors in detention who remain domiciled with the holders of the exercise of parental authority (parents, third parties, etc.);