Faced with the political crisis caused by the immigration text carried by his Minister of the Interior Gérald Darmanin, Emmanuel Macron embarked on an unprecedented procedure: the President of the Republic preferred to grant LR a tougher version of the text. At the same time, he himself appealed to the Constitutional Council, hoping that the most radical provisions of the law will be censored.
At the forefront of the provisions singled out by the Macronist camp, the sea serpent of “quotas”. The text provides that Parliament sets for three years the number of foreigners authorized to settle in France for each category of stay, with the exception of asylum. Lecturer in public law at the University of Paris 2 Panthéon-Assas, Benjamin Morel does not hide his skepticism: “Such a limit would result in a breakdown of equality between two migrants whose situation is nevertheless similar.”
The Constitutional Council could, however, rule differently depending on the residence permits. In 2008, a commission chaired by the former president of the Constitutional Council Pierre Mazeaud concluded that quotas for economic immigration, established according to precise criteria (according to needs in certain branches for example) would be “envisionable” with regard to the Constitution, but not “indispensable”. The report pointed to other mechanisms making it possible to regulate these flows, such as bilateral agreements concluded directly with States.
More difficult, on the other hand, to consider quotas on residence permits linked to family immigration. Professor of public law at the University of Paris II Panthéon-Assas, Guillaume Drago recalls that the Constitutional Council established the “right to lead a normal family life” as a general principle with constitutional value, in its decision of August 13, 1993.
But beyond the quotas, the immigration law also restricts family reunification. For example, an immigrant who wishes to bring his family must have stayed no longer 18, but 24 months in the territory. “We do not touch the principles, but the modalities of the principle, without distorting it, which is authorized by the Wise Men,” underlines a former secretary general of the Constitutional Council. “It remains to be seen whether the judges will consider that this tightening “distorts” the principle, with regard to article 10 of the preamble to the 1946 Constitution,” nuance Benjamin Morel.
Another sensitive point: the tightening of the conditions of access for foreigners in a legal situation to family allowances and personalized housing assistance (APL). The immigration law increases the minimum period of residence in France to five years for foreigners who do not work and to three months for others. A former secretary general of the Constitutional Council is circumspect: “There is a general principle according to which social benefits, even non-contributory, are due to people in a legal situation. It is of course necessary to justify a sufficiently long presence in the territory, but I do not see the Sages validating a presence of five years, it is a bit strong.
The majority finally hopes that certain measures, which it accepted only reluctantly, will be dismissed by the Constitutional Council as legislative cavaliers, because they are unrelated to the initial text. This is the case, for example, of the end of the automaticity of land law in certain cases. Except that the Constitutional Council theoretically admits all the amendments adopted by the first assembly referred to – in this case the Senate – as long as they are not devoid of any link with the text. Which is the case for this measure, initially voted by the Senate and relating to migration policy. “The problem is that the Constitutional Council takes little account of this rule in its case law,” underlines Benjamin Morel.
Seized separately by the Head of State and by the left, the Sages of rue Montpensier have in any case one month to rule. Their decision will therefore be known before the end of January. But one way or the other, be careful not to presume on their oracles.
