The government has paved the way for the “end of soil law” in Mayotte to fight against illegal immigration. “It will no longer be possible to become French if you are not yourself the child of French parents”, declared Gérald Darmanin, Sunday February 11, during a trip to the French department. The Minister of the Interior announced a constitutional revision project to achieve this, thus opening a breach in this principle applied in one form or another in France for several centuries.
Soil law corresponds to the fact of being able to acquire the nationality of a country in which one was born. In France, it is one of the ways to obtain nationality, along with blood rights, naturalization or even marriage. However, there are already conditions set to claim this right. “In the United States, just being born in the country makes you an American. In France, it’s different, it takes a lot longer”confirms Jules Lepoutre, professor of public law at the University of Côte d’Azur.
Concretely, a child who was born on French territory to a parent also born in France is French (this is the dual right of the soil), just like a child born in France to two stateless parents. If both parents are of foreign nationality and born abroad, a child born in France can become French from the age of 13 if he has lived in France for at least five years, or from the age of 18, subject to having resided in France for at least five years since the age of 11 and still living there.
In Mayotte, since the asylum and immigration law of 2018, you must also prove that at least one of your two parents was in a legal situation for more than three months when the child was born. “The more conditions we add, the more the pool of people concerned becomes smaller”, summarizes Jules Lepoutre. If we base ourselves on the declarations of Gérald Darmanin, it is indeed the land law as a whole (including the dual land law) which would disappear in Mayotte.
A right that comes from far away
The law of the soil “has existed in French law since 1515”recalls historian Patrick Weil, specialist in immigration and citizenship issues. That year, a decision by the Parliament of Paris granted the status of “subject of the king” to children born in France to foreign parents. This right is then enshrined in the first Constitution of 1791, then in Napoleon’s Civil Code (PDF) in 1804, although with some conditions such as the fact of “fix one’s domicile” In France. “Subsequently, it is a principle which has always been maintained in all our texts, either by being reaffirmed or by being maintained in force”completes Jules Lepoutre, author of Nationality and sovereignty (Dalloz editions).
In 1851 and then in 1889, the principle of dual civil rights was imposed, in order to first increase the number of people involved in military service. “Before, you had to request the application of land law, from 1889, it applies automatically”, summarizes Jules Lepoutre. The right removed this automaticity in 1993 via the so-called “Pasqua-Méhaignerie” law. A young person born in France to foreign parents must now make an explicit request for French nationality between the ages of 16 and 21. Lionel Jospin’s government will abolish this law, but a first breach has been opened. Other officials subsequently considered the end of land rights in certain overseas territories, such as the Chiraquian François Baroin, then Minister of Overseas Territories, in 2005.
However, no government has ever gone so far as to eliminate it in part of the territory. “Since 1889, the principle of double soil law has not been touched, even by the Vichy regime”adds, indignant, Patrick Weil.
Without revision of the Constitution, a risk of censorship
However, can we consider land law as a fundamental principle of the Republic? “Yes, it is one of the principles recognized by republican laws dating from before 1946 and which are considered fundamental”replies Jules Lepoutre. “These are the foundations of the first national Constitution of 1791, then of all the other Republican Constitutions which anchored it in our history, building a citizenship like a republican future”adds in Humanity the historian Pierre Serna.
For the moment, the Constitutional Council has not had to rule directly on the constitutional value of land law. Called to look closely at the Pasqua-Méhaignerie law, the Sages, then chaired by Robert Badinter, had estimated in their decision that “the automaticity of land law was not a fundamental principle recognized by the laws of the Republic”, specifies Jules Lepoutre, without ruling on the case of land law itself. Furthermore, during the 2018 asylum-immigration law, the tightening of the conditions for applying land law in Mayotte was also not deemed unconstitutional.
To pass its reform, the government has the possibility of passing an ordinary law, but would then expose itself to possible censure from the Constitutional Council. Sages could consider the suppression of land law as a “disproportionate attack on the indivisibility of the Republic”, says Jules Lepoutre. Furthermore, he could “see land law as a constitutional principle, and therefore the legislator could no longer touch it without a constitutional revision”. This is why the executive favors the path of constitutional revision.
A “suction pump” called into question
The government is in any case urged to act by the Mahorais deputies, far from these constitutional debates. For these elected officials, abolishing land rights in the archipelago would make it possible to directly target certain illegal immigration channels. “Migrants from Great Lakes Africa are not interested in them, because they want to arrive in France and Europe. But those from Madagascar and the Comoros have an interest in having French nationality”says Les Républicains MP Mansour Kamardine.
“Soil law is a magnet that attracts towards Mayotte, so that we can have a child who will ultimately have French nationality.”
Deputy LR Mansour Kamardineat franceinfo
The end of soil law will put an end to a real “suction pump” in matters of illegal immigration, anticipates with BFMTV Estelle Youssouffa, deputy of the Liot group. However, the effectiveness of this measure on immigration flows is questioned by the left-wing opposition and by several specialists. “It will have no impact”sweeps away the historian Patrick Weil. “What has an effect is the gap in resources between Mayotte and the Comoros”a neighboring country belonging to the same archipelago, with a gross domestic product (GDP) eight times lower. “It has never been demonstrated that there is an attraction effect created by land law”extends Jules Lepoutre.
When the president of the National Rally, Jordan Bardella, insists that “the Comoros send women to give birth in Mayotte”, the figures do not prove him right. According to data from the regional health agency (ARS) and Public Health France, in 2021, the majority of foreign women who gave birth in Mayotte already lived on the island at least two years before their delivery. “They are a minority to arrive in Mayotte during their pregnancy (11%)”, explains the ARS in a 2023 note.