Conditioning of access to social benefits, restriction of land rights, establishment of migration quotas by Parliament… Provisions of the immigration bill, adopted Tuesday December 19 by Parliament, could pose a problem of unconstitutionality. Questioned on RTL, Sacha Houlié, president (Renaissance) of the law committee at the National Assembly, estimates their number at one “thirty”. “Measures are manifestly and clearly contrary to the Constitution”had himself warned the Minister of the Interior, Gérald Darmanin, on the day of the vote, about this text from the joint committee (CMP).
The day after the adoption, the President of the Republic announced on France 5 to refer the matter to the Constitutional Council. Around sixty left-wing deputies (rebellious, socialists, ecologists and communists) have also contacted the Sages and are demanding, in their appeal, total censorship of the law. The President of the National Assembly, Yaël Braun-Pivet (Renaissance), for her part filed an appeal (PDF) concerning three measures.
“This means that neither members of the government nor parliamentarians believe they have the responsibility to control or ensure beforehand the constitutionality of a law, even though this is the case”notes Jean-François Kerléo, professor of public law at the University of Aix-Marseille. “The most likely scenario is what we call partial unconstitutionality”that is to say that only one “part of the law will be able to be promulgated”estimated for his part on franceinfo Thibaud Mulier, constitutionalist. Franceinfo takes stock of the provisions which could be challenged by the Constitutional Council, while a meeting is planned for Thursday January 4 between Gérald Darmanin and the prefects to “start applying text”.
The “legislative riders” in the viewfinder
Prohibited by article 45 of the Constitution, “legislative riders” are articles introduced by parliamentarians into the text, while they “are not related to the purpose of the law”recalls on franceinfo the constitutionalist Thibaud Mulier. In his appeal to the Constitutional Council, Emmanuel Macron details the objectives of the text which, according to its official title intended to “control immigration” And “improve integration” : “provide new guarantees for the benefit of foreigners who follow a quality integration path”, “accelerate procedures intended to remove from the national territory those who commit serious offenses (…)”, re-form “the examination of asylum applications” and simplify the “disputes relating to the entry, stay and removal of foreigners”.
Several measures may not concern these objectives: the bill introduces, for example, points concerning the acquisition of French nationality, and not the stay of foreigners on French territory. In the text pane “ensure better integration of foreigners”, the end of the first article provides for example to supplement articles of the Civil Code relating to the acquisition of French nationality. Therefore, a minimum language level is required. Further, article 2 bis A adds a reason for forfeiture of nationality to article 25 of the Civil Code, in the event of conviction for “intentional homicide committed against any person holding public authority”.
Likewise, the bill adds to the Civil Code an obligation for people born in France to foreign parents of “manifest their will” to acquire French nationality upon reaching the age of majority, in article 2 bis. This puts an end to the automatic nature of “soil law”.
Gérald Darmanin warned the Senate on November 7: “We must not mix the debate on foreigners in France with that on access to nationality .” “We do not mix the Civil Code [qui contient le Code de la nationalité] with Ceseda [qui encadre l’entrée et le séjour des étrangers et du droit d’asile]“, he assured again the next day. The Minister of the Interior then criticized the right for its “amendments relating to the nationality code, which are obvious legislative riders”.
A possible infringement of rights protected by the Constitution
The provisions toughening family reunification are also causing a lot of talk. Elisabeth Borne herself mentioned the requirement of a basic level of French for foreigners wishing to benefit from family reunification, provided for in Article 1 C. “If you marry a Canadian or a Japanese tomorrow, he will not be able to go to France if he does not speak French well”, explained the Prime Minister on December 20 on France Inter, who specified that she had expressed her doubts to the Republicans, at the origin of this provision. Thibaud Mulier considers that this measure “will be censored” For “violation of the right and respect for private life” such as provided for in the preamble to the Constitution.
“It is important to mention that many references in the text are contested for their imprecision and the Constitution does not allow the legislator to be imprecise when restricting freedoms”points out Anne-Charlène Bezzina, lecturer in public law at the University of Rouen. “On this point, the Constitutional Council is very scrupulous (the complaint is that of the ‘negative incompetence of the legislator’)”she adds.
“Many provisions are unclear, for example the reference to ‘stable’ resources for family reunification. It will not be possible to leave this clarification to the law enforcement authorities.”
Anne-Charlène Bezzina, constitutionalistat franceinfo
Furthermore, left-wing elected officials denounce article 7 bis, which gives the prosecutor the possibility of suspending (temporarily suspending) the celebration of the union in the event of suspicion of fraudulent marriage. This measure “is contrary to the freedom of marriage”says the Socialist Party on its website.
The left also mentions provisions modifying the code of entry and stay of foreigners and the right to asylum, which could also undermine “individual freedom”, guaranteed by article 66 of the Constitution. These are article 11, which authorizes judicial police officers to take fingerprints without the consent of a person, article 12 bis B, which increases the duration of house arrest for foreigners, as well as as article 25, extending from 24 to 48 hours the deadline for ruling by the judge of freedoms and detention.
A possible breakdown of the “principle of equality”
Another sensitive provision: the conditions of access to social benefits for foreigners who are not nationals of the European Union and who reside legally in France. To receive family allowances, five years of residence in France are required for those who do not work, thirty months for others. To receive personalized housing assistance (APL), it takes five years for those who do not work, and three months for those who have a job.
Pointed out by Yaël Braun-Pivet and the left-wing elected officials, these conditions, provided for in article 1 N of the text, will be examined through the prism of the Constitution. By differentiating between regular foreign nationals and French people, they can lead to a breakdown in the “principle of equality” with regard to social benefits, although enshrined by the Constitutional Council in 1990. “In France, we have, historically and culturally, a universalist conception of equality, this principle not tolerating exceptions or derogations based on criteria linked to nationality or length of stay”underlines Jean-François Kerléo, professor of public law at the University of Aix-Marseille. “The question then is whether the Constitutional Council will protect this universalist conception or follow the current movement consisting of refocusing the principle of equality on national preference.”
The Defender of Rights, Claire Hédon, also denounced a text making “the choice of national preference” And “a serious attack on the principles of equality and non-discrimination, the bedrock of our Republic”. Asked about the conditioning of social benefits, the Prime Minister defended herself from promoting national preference and “to be part of the theses of the National Rally”, on France Inter.
The “student deposit”, a sum to be deposited by foreigners applying for a “student” residence permit, is also debated. Supported by the right,It is provided for by Article 1 GA. “It could be considered as ‘excessively’ unequal treatment or even as an attack on the autonomy of universities by the Constitutional Council, but this is unlikely”, believes Jean-François Kerléo. She “clearly undermines the principle of equality before the law”judge Thomas Mulier.
“The Constitutional Council recognizes the constitutionality of the breakdown in equality between French nationals and foreigners. We can therefore treat nationals and foreigners differently”, recalls Anne-Charlène Bezzina. However, “we cannot break equality between foreigners, unless we have general, precise criteria of interest linked to the law. This poses a problem, in particular for the student deposit: why only students (among foreigners) and why only foreigners (among students)”.
Left-wing deputies also point to a “disregard of the principle of equality in the exercise of freedom of education” with article 1 G. It is specified that foreign students must prove the character “real and serious” of their studies.
The exclusion of foreigners in an irregular situation from social transport pricing by Article 1 J is also contested. The parliamentarians also denounce a “lack of awareness of the right to health protection” in “restricting the conditions of obtaining” residence permits for sick foreigners, or even more favorable provisions for certain categories of people, such as article 1 K, which exempts British national owners from applying for a long visa. Here again, a breakdown in the “principle of equality” is mentioned.
A potential breach of the separation of powers
In their appeals, left-wing elected officials criticize Article 1 A. This provides for the establishment of quotas set by Parliament to cap “for the next three years” the number of foreigners admitted to the territory. By imposing an annual debate on these migratory quotas, mission normally reserved for the government, as recalled by the Constitutional Council in a decision of November 20, 2003, “the legislator has exceeded his area of competence”consider the elected representatives of the left.
This provision, also pointed out by the President of the National Assembly, could constitute a double breach of the Constitution: an injunction from Parliament to the executive contrary to the separation of powers, and a discrimination between two foreigners in similar situations, separated only by the “threshold” of the quota. “If these criteria are applied to a hundred entrants but not to the 101st for reasons that do not relate to his situation (…) it is fundamentally problematic”thus illustrates the constitutionalist Benjamin Morel on Public Senate.