The Conseil d'État deemed it disproportionate to require an urgent reason for French nationals wishing to return to France, as the impact of such travel is minor in relation to the spread of the COVID-19 epidemic. However, this requirement for travel to and from the French West Indies is justified on the grounds of avoiding the tourist flows, which could exacerbate the health situation there.
The Prime Minister has restricted travel between France and countries outside the European Union and the European Economic Area, as well as to and from overseas collectivities, by a decree dated 30 January 2021. People wishing to travel must have an "urgent personal- or family-related reason, an emergency health-related reason or a work-related reason that cannot be postponed". This measure aims to minimise health risks to the population by postponing or avoiding international travel in the current global pandemic context.
This decree was attacked by the Union des Français de l'Etranger as well as by tourism professionals in the West Indies. In the first case, because it restricts the possibility for French people living abroad to return to France, and in the second case because it hinders tourism in the Caribbean communities.
Requiring an urgent reason disproportionately affects the fundamental right of every French person to access their country
With regard to French nationals returning from non-European countries, the urgent applications judge found that the measure only prevents a very small number of trips compared to the total number of entries into metropolitan France from abroad.
The urgent applications judge concluded that the requirement of an urgent reason for such travel disproportionately infringed the fundamental right of every French person to access the country. He therefore suspended this measure.
The judge also stated that the requirement of a PCR test that is less than 72 hours old cannot result in refusal of boarding if it is physically impossible to carry out a prior test.
Restricting travel to and from the French West Indies is justified by the current epidemic
With regard to travel between metropolitan France and the French West Indies, as well as between the West Indian communities themselves, the urgent applications judge noted that the measure essentially had the effect of preventing the arrival of tourists. Although the health situation is better in these territories than in mainland France or in other overseas collectivities, the reopening of tourist flows would quicken the spread of the variants that are now widespread in mainland France.
In addition, the seven-day quarantine after arrival and the carrying out of a biological virological screening test were not generally observed by tourists who came in December and January. Finally, the judge observed that the health situation in Guadeloupe, although still better than in mainland France, was deteriorating and justified the introduction of a curfew.
The urgent applications judge therefore concluded that, in view of the high risk of saturation of intensive care beds in the event of a sharp rise in the incidence rate, the obligation to justify an urgent reason for any travel between metropolitan France and the West Indies, as well as between Guadeloupe, Martinique, Saint-Martin and Saint-Barthélemy (except between Saint-Martin and Saint-Barthélemy), was not manifestly illegal.
The judge also stated that the list of urgent reasons and supporting documents to be provided by the Ministry of the Interior is merely illustrative.