Key Benefits:
ACT IMMIGRATION
AND INTEGRATION
Mr. Chairman, ladies and gentlemen of the Constitutional Council, we have the honour to refer you to the second paragraph of Article 61 of the Constitution. The whole of the Immigration Control and Integration Act as adopted by Parliament.
In support of this reference, we develop the following complaints and pleas in law, in particular, of Articles 31, 44, 45, 47 and 55.
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A As a preliminary point, it is useful to recall that, in accordance with your case-law, no principle, no more than no rule of constitutional value, ensures that foreigners have general and absolute rights of access and residence on National territory, it is equally acquired that the legislator must respect the fundamental rights and freedoms of constitutional value recognized to all those who reside in the territory of the Republic (Decision No. 93-325 DC of 13 August 1993). Among these are the right to a private, normal family life and also the right to respect for human dignity.
Unfortunately, current events show that the legal uncertainty resulting from legislative and administrative harassment Permanently threatens even the children who are arrested in the middle of their comrades or on the street.
Now, the law that is being criticised is seriously misunderstood the balance that you have to achieve. In particular, the mechanisms thus put in place are of a nature, in the opinion of all the humanitarian associations working in this sector, to further precarify the most integrated foreigners, and to place immigration policy under The pressure of electoral periods. In particular, it is striking that the abolition of the right to regularisation after ten years in our country or the additional limits placed on family reunification will have the effect of undermining mainly foreigners who have Demonstrated their desire to integrate by the duration of their anchoring in France or by their contribution to the creation of the wealth of our country.
It is not known that the precariousness of the parents or the obstacles put by administrative arbitrariness ends Creating areas of non-law and violations of human dignity. The fight against the networks of crime which exploit human misery does not gain much, when the infringement of human rights is taking place.
This is why it seems so important to us that you prevail over rights and freedoms Fundamental, far from the electoral passions, by simply sticking to your case law protecting the republican principles. Your decision is, therefore, particularly expected.
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1. Article 31 of the Law:
This article amends the wording of Article 313-11 of the Code of Entry and Residence of Foreigners and of the Right of Asylum applicable to residence cards. In particular, it removes the right previously granted by the legislature " Abroad who do not live in a state of polygamy, which justifies by any means of residence in France usually for more than ten years or more than fifteen years if, during that period, he has stayed as a student. The years during which the alien relied on falsified identity documents or a spoofed identity are not taken into account. "
In so doing, the legislator has returned to a provision that stabilised the situation Of foreigners who have lived in France for many years and have, de facto, demonstrated their desire for integration and their attachment to France. Even where they necessarily have a stable and real relationship.
By removing this right, the law attacked places these people in a situation of great distress and insecurity and, paradoxically, aggravates the risk of
It follows an infringement of the principle of human dignity that you enshrined in your decision of 27 July 1994 in reference to the Preamble of the 1946 Constitution stressing that " In the aftermath of the victory of the free peoples on the regimes which attempted to enslaved and degrade the human person, the French people once again proclaim that every human being, without distinction as to race, religion or belief, Has inalienable and sacred rights; that the preservation of the dignity of the human person against any form of enslavement and degradation is a principle of constitutional value "
Is applicable. Admittedly, the authors of the reference do not ignore your case-law in view of the fact that foreigners do not have an absolute right to entry and residence in the territory. But it is equally certain that the removal of the right to a residence permit to foreigners residing in France for 10 or 15 years inevitably leads to the dumping of these people into forced underground. By definition, such a situation places them in a situation of intolerable degradation for our civilisation.
Between the sovereignty of the state and the safeguarding of the dignity of these people, you will not hesitate to make a conciliation It
in this humanist spirit that Mr. Pierre Mazeaud, then Chairman of the Law Commission of the National Assembly, defended such a provision. To stabilize the situation of foreigners who have demonstrated their integration and Yet threatened by the absurd of Kafkaesque clandestinity (AN, OJ 19 December 1996, p. 8627 et seq.).
In any case, the removal of this right will create legal uncertainty to the extent that these non-regularizable persons will be most often not evicted. With regard to a text intended to organise the entry and stay of aliens, the introduction of an incomplete regime shows that the legislature has not exhausted its competence in this matter and lacks the objectives it has set
. As a consequence, the removal of a right without the creation of a replacement mechanism leads to the violation of Article 34 of the Constitution.
Of these leaders, censorship is certain.
2. Finally, this article modifies the 7 ° Article L. 313-11 of the code of aliens by making the grant of a residence permit Said " Private and family life " To the conclusion by the administration of Intensity " Links existing in France.
Such a requirement is clearly contrary to Articles 2 and 4 of the 1789 Declaration of Human Rights enshrining the personal freedom from which the right to privacy is derived as well as in principle
On the one hand, such an imprecise criterion can only lead to the arbitrariness of the assessments of the different prefectures and treat people differently in objectively similar situations.
On the other hand, this vague and very different notion of the stability criteria and Of seniority may result in investigations which themselves will be very intrusive and violate the right to private and family life.
Finally, and in any event, the legislator cannot, without regard to his own competence, Subject a fundamental right to the assessment of a criterion without a definition and whose precise scope is unknown in our law.
Censorship is incurred.
3. The provisions relating to family reunification:
This chapter II of the law criticised is intended to put new constraints on the right to family reunification. In a disproportionate way, it is a matter of making it more difficult for foreigners in a regular situation to live with those whom they love. Parliamentary debates have shown abundantly that it is mainly the suspicion that irrigates these provisions out of any objective and rational criterion.
Fortunately, you are paying attention to ensuring the effectiveness of the right to To lead a normal family life on the basis of the tenth preambular paragraph of the Constitution of 27 October 1946, at the end of which " The Nation assures the individual and the family of the conditions necessary for their development " And give an assessment of the consequences that such or such provision may have in this respect (Decision No. 97-389 DC of 22 April 1997). Fundamental right which is also proclaimed by Article 8 of the European Convention on Human Rights.
The right to protection of privacy has also been enshrined in your case law. You have, in particular, been forcefully reminded " Under Article 2 of the Declaration of Human and Citizen Rights: the aim of any political association is the conservation of natural and imprescriptible rights of man. These rights are freedom, property, security and resistance to oppression; that the freedom proclaimed by this article implies respect for privacy " (Decision No. 99-416 DC of 23 July 1999, recital 45).
In addition, as it should, you guarantee respect for the principle of equality, including for foreigners (Decision No. 89-269 DC of 22 January 1990)
Invalidate the clearly disproportionate provisions contained in this text.
This is, for example, not just Articles 44, 45 and 47.
4. Article 44 of the Law:
This article amends Article L. 411-1 of the Code of Entry and Residence of Foreigners and the Right of Asylum, replacing the words: For at least one year " With the words: " For at least 18 months ".
Such a provision makes it more difficult to exercise the right to family reunification without having to rely on an objective and rational criterion. It must therefore be admitted that this is manifestly disproportionate to the right to a normal family life.
Censorship can only intervene on this point.
5. Article 45 of the law:
This article adds an imprecise condition on the subject opening up all the arbitrary and violating the principle of equality. Indeed, as regards the housing conditions of a foreigner wishing to bring his family, instead of enjoying them according to the standard in France, the administration may decide according to geographical
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the light of the right to family reunification, such a vague and imprecise criterion will vary the conditions of assessment from one prefecture to another. However, in view of the subject-matter of the law and the general interest pursued, such differences in treatment between foreigners who wish to exercise the same right in the same territory, that of an indivisible and indivisible Republic, can only misunderstand The principle of equality before the law.
In any case, the legislator cannot subordinate the exercise of a fundamental right, which is the case in matters of family life, to the implementation of a concept which is also subject to interpretation according to the Places and times. Therefore, the legislature has not exhausted its jurisdiction and the breach of Article 34 of the Constitution is certain.
6. Article 47 of the Law:
This article allows the administrative authority to withdraw the residence permit of a foreign spouse in the event of a breach of the common life for the three years following the authorization to stay on our Territory.
In your decision of August 13, 1993, you considered " That the resident card, valid for a period of ten years, is renewable in full capacity; that, having regard to the requirements of the safeguarding of public policy and taking into account the objectives of general interest which it has assigned, the legislator has been able to demand That the acquisition of this card be subject to the dual condition of the absence of a threat to public order and the regularity of the prior stay of the persons concerned without undue interference with the principles of constitutional value relied on by the The authors of the referral [individual liberty] ".
While the foreigner has no You do not have an absolute right to enter and stay in the territory, so you exercise control over the conditions for issuing such a residence permit. It must be deduced that the criteria for granting or withdrawing this unduly restrictive card would be considered by you to be a disproportionate attack on individual
. Such excessive conditions would also affect the right to a normal private and family life. In your decision of 22 April 1997, you censored for infringement of this right and individual freedom a provision which placed the renewal of that card in the existence of a mere threat to public
. These two decisions show that you intend to guarantee the right of foreigners to be able to integrate at best in our country and to censor the manifestly excessive provisions in this regard.
In this case, by submitting to a threat of withdrawal or Non-renewal of the residence permit for a foreign spouse during a A long period of three years, the legislator has taken a manifestly disproportionate measure. The spouse concerned may choose to sever his or her common life for reasons relating to his or her personal freedom. Requiring the maintenance of a couple link against the will of the people is an attack on individual liberty and the right to privacy. On the other hand, leaving her spouse does not threaten public order or imply little integration into our country.
This provision is therefore excessive in relation to the right to family reunification and personal freedom.
7. On section 57 of the Act:
This Article modifies Article L. 512-1 of the code of aliens by having that the alien who is the subject of a refusal to stay, a refusal to grant or renew a residence permit or a withdrawal of a residence permit, Application for a residence permit or temporary residence permit with an obligation to leave the French territory mentioning the country of destination may, within one month of the notification, request the annulment of those decisions To the administrative tribunal, but in accordance with the single judge's
. The principle of collegiality for a whole range of administrative disputes concerning fundamental rights and freedoms disregards the principle of the independence of the administrative courts and, together, the right to a fair trial and the article 16 of the 1789 Declaration.
, in your decision of 22 July 1980, you found that the provisions of article 64 of the Constitution relating to the judicial authority and the fundamental principles recognized by the laws of the Republic as regards administrative jurisdiction, since the law of 24 May 1872, that the independence of the courts is guaranteed and the specific nature of their functions on which neither the legislator nor the Government can interfere. With regard to the right to appeal and to the fair trial, you ensure that it is respected with particular vigilance.
However, collegiality is an element of such a nature as to guarantee the independence of the courts and the judges sitting there. It is Montesquieu's thought for whom " The single Magistrate (...) can only take place in a despotic government " (Montesquieu, De l' Esprit des lois, Book VI, Chapter VII).
For a classical author such as R. Chapus, this principle " Particularly in the area of administrative disputes, as collegiality is for judges who are responsible for settling them a condition of their independence in their relations with the most powerful and constant of their
is true that the authors of the reference do not ignore the fact that the institution of the single judge exists in several areas, judicial and administrative disputes, and tends to multiply. This is the most common way to manage inventory and file flows. That is, to promote the deployment of a strictly accountable vision of justice.
In view of the existing and your case law, it is therefore true that the legislator can provide for exceptions to the principle of collegiality. However, it is equally true that these exceptions must not only be provided for by law, but must be strictly adapted to the objective pursued, to be fully justified in a democratic society, to be sufficiently limited to not Infringe the substance of the right to recourse, and not be disproportionate to fundamental rights and freedoms.
In the same way that you do not accept legislative validation, which also undermines independence For only financial reasons, you will not be able to Authorise the transfer of all litigation relating to fundamental rights and freedoms, including the right to family life guaranteed by our constitutional principles, as in Article 8 of the European Convention on Human Rights, to the judge
In this respect, it cannot be recognized that the right to an independent and impartial judge, and thus to collegiality, is subject to the sole overriding requirement for the management of mass litigation. The conciliation between the budgetary constraints of the public service of justice and fundamental rights cannot be made at the expense of democratic principles.
At a time when the sinking of Outau brought the principle of Collegiality as a guarantee of freedoms, it would be paradoxical to place fundamental rights and freedoms under the exclusive bias of the single judge.
For, in this case, it is all the foreign disputes which will thus be brought before the single judge. However, this dispute is not a small one. It sometimes involves people's lives and their family balance. It is well known that, in the case of foreigners, decisions can have serious, even tragic consequences if a foreigner is returned to a country where he or she is exposed to inhuman and degrading
. In any event, the principle of equality before the law which is an integral part of the principle before the law is infringed by the principle of equality before the law.
Of all These leaders, censorship is incurred.
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We ask you to believe, Mr. Chairman, ladies and gentlemen of the Constitutional Council, to the expression of our high regard.
(List of signatories: See Decision 2006-539 DC.)
