The “Wise Men” of the Constitutional Council have widely censored the immigration law, including numerous toughening measures adopted in December under pressure from the right, a major development in this soap opera which has rocked the majority. On the other hand, a large part of simplification of procedures for expelling delinquent foreigners, one of the objectives of Minister of the Interior Gérald Darmanin, has been retained. Here are the main points challenged by the nine judges.
Several measures provided for in the immigration law were subject to censorship on the merits: they were declared unconstitutional as such.
This is particularly the case for the establishment of annual migration quotas, determined by Parliament after a mandatory debate, which will set a precedent. “It does not result […] from any […] constitutional requirement that the legislator can impose on Parliament the organization of a debate in public session or the setting by the latter of certain quantified objectives in matters of immigration”, declares the constitutionnal Council.
The censorship of article 1 of the law is all the more symbolic as this measure was the most decisive in terms of regulating legal immigration. The Constitutional Council, however, limits itself to saying that a law cannot force the hand of the National Assembly and the government in terms of setting the agenda of Parliament, but does not respond to the objection raised by the left-wing parliamentarians, according to whom migration quotas “would subject foreign nationals to an unjustified difference in treatment depending on whether their request for residence was presented before or after the quotas were reached.”
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In the measures censored on the merits, the Constitutional Council also prevents the immigration law from facilitating the identification of foreigners in an irregular situation, when they are apprehended by the police. The law in fact authorized judicial police officers to “resort to coercion to carry out fingerprinting or photographing operations of a foreigner, in the event of the latter's clear refusal to submit to these operations”.
But the Constitutional Council objects that these provisions “deprive of legal guarantees” certain constitutional requirements, failing to provide that these readings be carried out with the authorization of a magistrate or in the presence of the latter.
The vast majority of articles censored were for procedural, and therefore formal, reasons. The constitutional judge considers that all the measures contained in the text, and not having a link with the bill initially tabled by the government in the Senate, must be rejected, on the grounds that they are “legislative cavaliers”. In this he relies on article 45 of the Constitution, affirming that “any amendment is admissible on first reading as long as it presents a link, even indirect, with the text tabled or transmitted”.
Very controversial, the measure extending the length of residence required for non-Europeans in a legal situation to benefit from certain social benefits has thus been completely censored. There we found the personalized autonomy allowance (APA), intended for those over 60, and the personalized housing allowances (APL). With the law, foreigners would have had to wait two and a half years for workers to have access, five years for others.
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Another measure rejected, the tightening of the criteria for family reunification was to increase the required length of residence from 18 to 24 months. This particular immigration regime, governed by a 2003 European directive, allows a foreigner to bring their spouse or children to France. The necessary resource conditions no longer had to be “stable and sufficient” but also “regular”, while requiring the individual to have health insurance for himself and his family.
The measure is swept aside since it “was adopted according to a procedure contrary to the Constitution” and that it “has no link, even indirect, with those of article 1 of the initial bill”.
The immigration law provided for making the first issue of a temporary residence card marked "student" subject to the posting of a deposit by the foreigner: this "return deposit" was intended to guarantee that foreign students would leave French soil. when their residence permit expires.
This measure is also rejected on the grounds that it does not present a link with the initial bill tabled in the Senate.
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Several articles of the immigration law aimed to modify the rules for acquiring French nationality. In particular, the law intended to put an end to the automaticity of soil law: children born in France to foreign parents had to apply to obtain French nationality from the authorities, and therefore no longer received it automatically.
These articles were also censored, considered legislative horsemen.
The Constitutional Council, on the other hand, validated several measures of the immigration law originally proposed by the government, some of which were strongly contested by the left-wing opposition to the law. Among these endorsed measures are: