Heightening the Repressive Dynamic

The new French Immigration Act was promulgated and published on 26^th January 2024, the day after the Conseil Constitutionnel  decision which censored several of its provisions. This was the end of the elongated and tumultuous legislative route that started last year when the Interior Minister presented a bill to control immigration and to promote integration (see here). Initially containing 27 provisions, 59 further ones were added by the right wing majority of the Senate, which largely reflect the views of the extreme right party Le Rassemblement National. Though most of them were suppressed by the Law Committee of the National Assembly, many were reintroduced by a Joint Parliamentary Committee on 18^th and 19^th December 2023. The resulting text was adopted in a rapid sequence by both chambers on the same day, despite the absence of a general discussion at the National Assembly where a motion to reject was adopted on 12^th December 2023. Les Républicains were greatly satisfied; Le Rassemblement National announced an ideological victory; the left was dismayed.

Between its adoption and promulgation, the bill was referred to the Constitutional Council for a priori review under Article 61 by the President of the Republic, the President of the National Assembly, sixty deputies and sixty senators. The situation was unprecedented: the Interior Minister, the Prime Minister, and even the President of the Republic – who is supposed to be the guardian of the fundamental charter according to Article 5 of the Constitution – publicly admitted the text was definitely tainted by diverse unconstitutionalities. The Conseil Constitutionnel censored 35 provisions in one of its longest decisions to date. It chose to emphasize the Constitution’s procedural requirements, while largely avoiding substantive analysis of the Act’s drastic reduction of foreigners’ rights. Indeed, it asserted the constitutionality or remained silent on many provisions that undercut foreigner’s rights. The Act as promulgated thereby constitutes the most repressive text since 1945 and heightens a migration restrictive dynamic, as Danièle Lochak and Groupe d’information et de soutien des immigrés (GISTI) underscore.

An Expected Reminder

The Conseil Constitutionnel censored for procedural reasons 32 provisions for lacking a link – direct or indirect – with the initial bill (the Council refers to such provisions as ‘parliamentary riders’, in French “cavaliers législatifs”). This procedural rule, longstanding in the Conseil’s case-law, is drawn from Article 45 of the Constitution, which requires amendments to possess a link with the bill under discussion to be deemed admissible.

The affected provisions envisioned a very restrictive approach to migration, as they would have:

• tightened the conditions of the right to family reunification;
• limited access to a residence permit for sick foreigners;
• increased university fees for international students and imposed a return deposit;
• deteriorated the situation of illegally staying foreigners by prohibiting access to emergency shelter and suppressing the fees reduction in public transport;
• restricted access to no contributory social aids for legally staying foreigners;
• made the acquisition of the French nationality more difficult;
• deepened the fight against fraudulent marriage and fraudulent acknowledgement of paternity;
• deleted access to short term resident permit for young adults if they maintain a relation with their parents in the state of origin;
• limited aid for voluntary departure to be obtained only once;
• extended the notion of risk of absconding to increase use of detention;
• eliminated a free day before re-routing for foreigners refused entry at the border;
• made public development aid conditional on the cooperation to fight against irregular migration;
• introduced the offence of illegal stay suppressed in domestic legislation in 2012.

While right wing parties also aimed to replace the Aide Médicale d’Etat in order to prevent foreigners to benefit from the national health system, this was abandoned during the political negotiations as the Government promised to Les Républicains to reform the disposal in 2024 (see here).

A Weak Form of Control

The Conseil’s procedural approach seems unsatisfying. In addition to being stereotypical, it displays a stronger intensity of review for legislative amendments than for executive proposals (see here and here), with the Conseil being permissive with the Government in its decision no. 2023-849 (see here) on the pension reform as well as in the case of the Immigration Act (see here). This appears to contradict the 2008 constitutional reform which aimed to strengthen the power of members of Parliament to introduce amendments and to weaken constitutional review of legislative riders (see here). While the Conseil subsequently admitted the legislative introduction of provisions relating to nationality in its decision on the 2018 Immigration Act, it did the opposite in the current decision, with no justification being provided for this change in approach.

To be sure, the Conseil was in a delicate position, instrumentalised by the executive and the legislative branches, who admitted to ignoring constitutional requirements and deferring to judicial review intractable political disagreements. That is probably why the Conseil’s President asserted twice during it greetings that the Conseil “is not an echo chamber for trends in public opinion, nor is it a chamber of appeal for the choices made by Parliament.” Whether the decision is regarded as clever, needy, or clumsy, the weakness of the Conseil’s argumentation is undisputable. First, the ruling does not prevent the introduction of such measures in future bills, though it also does not presume their constitutionality. Second, it did not address the unprecedented legislative process and the devaluation of the role of the Parliament it revealed which seemed to infringe the requirement of a sincere legislative debate (here and here). Third, there was no assertion of the importance of major constitutional principles of dignity, fraternity, egality, and the provisions’ tension therewith, as laid out by several of the amici curiae.

However, the Conseil did censor three provisions on substantial grounds. The first pertained to the institution of a binding parliamentary debate to define national immigration orientations and determine immigration quotas. It reasoned that Parliament has no power to bind itself and to impede the Government’s prerogatives. The second concerned a provision to coerce foreigners to have their photo taken and their fingerprints registered. This liberty restriction was not supplemented by sufficient procedural guarantees. The third provision would have created an experiment that let the administration, when considering refusing to issue or renew a residence permit, to examine all the other grounds for issuing a residence permit.

An Admitted Conformity

Additionally, the Conseil upheld the constitutionality of two provisions pending their interpretation as detailed in the decision. One required administrative authorities to inform foreign nationals of the necessity to deliver all documentation that could be useful to examine which permit could be considered, when considering refusing to issue or renew a residence permit. Another concerned the house arrests of foreigners under removal orders, whose renewal may be adopted only after the assessment of the individual’s particular situation.

Yet, the striking part of the ruling consists in the Conseil’s declaration of conformity with the Constitution of ten provisions of the Law that deploy a repressive agenda against foreigners. These include:

• the obligation for foreigners applying for a residence permit to commit to adhering to the principles of the French Republic, even though a similar provision was previously censored by the Conseil;
• the suppression of protections against the adoption and carrying out of removal orders and of territory interdictions that existed for foreigners with close ties with France (parents of a French child, spouses of a French national, foreigners having arrived in France before 13 years old, residents for more than twenty years) when there is a threat to public order (immediately the Interior Minister asked prefects to look at the situation of foreign delinquents to proceed to their return);
• the extension of the duration of house arrest for foreigners under a removal order that cannot be executed;
• the extension of the delay of judicial review supposed to control the detention of foreigners deprived of their liberty in waiting zones;
• the expansion of the delocalisation of judicial audiences in detention centers;
• the extension of the use of video conferences for judicial audiences regarding cases of foreigners in detention centers;
• the suppression of collegiality of the asylum court that was characterised by the presence of an assessor representing the UNHCR;
• the obligation in several cases for the authorities to refuse or withdraw reception material conditions normally provided to asylum seekers;
• the exclusion of young foreigners under removal orders from childcare protection services;
• a database creation for unaccompanied migrants assumed to be delinquents;
• visa refusal to foreigners if their national state does not cooperate in readmission processes.

An Awkward Silence

42 Articles of the law were not examined at all. This is both surprising and worrying as the President of the Republic and the President of the National Assembly refer the entire bill to the Conseil. However, the Conseil has stopped reviewing provisions that are not explicitly mentioned in the referral, rendering such a “blanket referral” ineffective. Consequently, provisions introducing major restrictions of foreigners’ rights have been introduced in the French legal order for now, though  an a posteriori review of their constitutionality remains possible via some questions prioritaires de constitutionnalité (QPC).

These restrictions include an expansion of the use of detention for asylum seekers including those under Dublin transfers; the inadmissibility of a foreigner’s asylum application coming from a state where they could have applied for equivalent protection (though the notion of equivalent protection is not defined by the law); the closure of the examination of an asylum claim when the applicant leaves their assigned reception center; the establishment of poles “France Asile” where the independence of the protection officers will not be ensured. The result is a weakened right to asylum.

What is more, the deliverance of resident permits is made more difficult (i.e. temporary residence permits for the same purpose cannot be renewed more than three times); the guarantee to an effective remedy is at stake as the period for requesting a remedy is shortened (one month in the case of removal order, 7 days in litigation regarding reception conditions and Dublin transfers, 48 hours for a remedy concerning detention); the use of detention is less controlled since review intervenes only after 4 days instead of 2; the control of territorial access is increased with the extension of the use of data bases and the possibilities of border inspections.

Conclusion

The rights of third country nationals including asylum seekers (see here) are deeply undermined by this law. Yet there was no illusion of the ability or the will of the Conseil Constitutionnel to effectively and substantially protect foreigners’ rights, since it elevated the fight against irregular immigration to a constitutional objective in 2003. Meanwhile, there is nothing left of one of the provisions the Government proposed that was supposed to promote the integration of foreigners: the regularisation of migrants working in economic sectors under pressure. Les Républicains obtained that Préfets maintain their discretionary power to regularise undocumented workers employed in activities that are facing labour shortages (construction, catering, personal assistance, etc.). An undocumented worker, who has been resident in France for at least three years and regularly employed for at least 12 of the last 24 months, can apply for a one-year residence permit – without the employer’s approval as it was previously the case – yet depending on the Préfets’ decision issued on a case-by-case basis. The provision, which cannot be invoked against the administration, is in some respects less protective than the 2012 Circulaire Valls was. Only one positive point remains in the 2024 French Immigration Law: the prohibition of minors’ detention, even if it is reported to 2027 in Mayotte where most of the minor migrants are detained (France was condemned by the European Court of Human Rights in the Moustahi case for such detention of minor migrants in Mayotte in 2020).