Key Benefits:
LOI RELATIVE À LA MAÎTRISE DE L'IMMIGRATION,
INTEGRATION AND ASILE
Mr.President, ladies and gentlemen, the members of the Constitutional Council, we have the honour to refer to you, pursuant to the second paragraph of Article 61 of the Constitution, the entire law on immigration control, integration and asylum as adopted by Parliament.
In support of this referral, we develop, in particular, the following grievances and means against article 13 introducing the test of genetic imprints in the law of foreigners and article 63 authorizing ethnic statistics.
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The intrusion of genetics in the foreign police must fail. With regard to the protection of the constitutional principles enjoyed by foreigners, the intrusion of genetics in the status of migrants, men, women and children, must fail. And if we had to convince beyond these principles, we should say that these three letters, ADN, will not resolve any of the questions asked to the legislature but will create, on the other hand, discrimination according to the nature of families, biological or adoptive, recomposed or shattered.
This is the meaning of the opinion rendered by the National Advisory Committee on Ethics.
At this point, it seems useful to us to recall that if, in accordance with your jurisprudence, no principle is that no constitutional rule guarantees aliens the general and absolute rights of access and residence in the national territory, it is equally acquired that the legislator must respect the fundamental rights and freedoms of constitutional value recognized to all those residing in the territory of the Republic (Decision No. 93-325 DC of 13 August 1993). Among them are the right to lead a normal private, family life, the right to family reunification, but also the right to respect for human dignity and, of course, the principle of equality before the law. In this regard, it is essential that a reasonable proportion be respected between the purpose sought and the measure adopted, especially when fundamental rights and freedoms are concerned. Finally, it is essential that the law be sufficiently clear and accessible and that the legislator go to the end of its jurisdiction to avoid the arbitrariness that arises from unclear situations.
It is important to admit that these principles are not respected by section 13 of the law that is referred to you today.
With regard to a certain idea of the law and the effectiveness of the law, it remains difficult to believe that between 2003 and 2007 the status of the law of aliens was amended by two laws in 2003 and almost once a year thereafter, either by a particular law or by stale provisions. This legal insecurity leads to "sucissonner" fundamental rights. Each step is isolated as a minor. Additions to each other, they eventually weaken the principles, at the risk of emptying them from their substance.
To the point that the European Court of Human Rights, and recently on 26 June 2007, was led to condemn our country for having rendered ineffective the exercise of certain fundamental rights following a legislative amendment on the law of foreigners.
In particular, it is striking to note that the various additional limits put to family reunification by these multiple texts have had the effect of fragilizing, above all, foreigners who have demonstrated their willingness to integrate by the duration of their anchorage in France or by their contribution to the diversity and creation of the wealth of our country.
However, the presently criticized law seriously ignores the balances that you have to enforce.
The idea of using genetic testing to condition family reunification is thus an additional step to make the exercise of the right to family reunification more difficult. The risk is then to make it ineffective in practice even though it remains admitted in appearance.
No one knows, at this moment, that such a method leads, in fine, to even more precarious the most integrated foreigners, and to put immigration policy under the pressure of electoral passions. The news has sufficiently shown that legal insecurity resulting from permanent legislative and administrative harassment may, above all, threaten the integration of foreigners present in France, to the extent that children can be stopped in the middle of their comrades or in the street.
No one knows that the precarisation of parents or the obstacles placed on the path of normal family life by the administrative arbitrariness eventually create areas of non-right. If the fight against the networks of crime that exploit human distress is not gaining, the fundamental rights, they, are a little further in front of the coldness distilled by the "office legislation".
As for article 63 authorizing ethnic statistics from a parliamentary amendment, it should be questioned about its connection with a text on immigration, while, in addition, the legislator did not provide all the necessary guarantees to protect the fundamental rights in question, including those enshrined in article 1 of the Constitution.
That is why it seems so important to us that you will prevail fundamental rights and freedoms, far from the electoral exploitations, by simply remaining faithful to your jurisprudence protecting Republican principles.
Your decision is, therefore, particularly hoped.
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Section 13 is subject to censorship for the following reasons:
I. - First, Article 13 is in breach of the right to family reunification and the right to privacy and family life.
II. - Secondly, it is a violation of the principle of equality before the law between biological families and others.
III. Third, the criticized measure is clearly disproportionate to the principle of human dignity.
IV. - Last but not least, the voting system clearly ignores the principle of clarity and the constitutional objective of accessibility and intelligibility of the law, and ultimately violates article 34 of the Constitution for vice of negative incompetence.
I. - Firstly, this section of the criticized law ignores the right to family reunification and together the right to normal family and private life. Obviously disproportionately, it is about making it more difficult for foreigners in a regular situation to live with those they love. Parliamentarian debates have shown abundantly that it is primarily suspicion that irrigates these provisions, apart from any objective and rational criteria.
I-1. Fortunately, you always pay attention to ensuring the effectiveness of the right to a normal family life, on the basis of the 10th preambular paragraph of the Constitution of 27 October 1946, under which "the Nation shall provide the individual and the family with the necessary conditions for their development," and you shall give an appreciation of the consequences that a provision may have in this regard (Decision No. 97-389 DC of 22 April 1997).
Fundamental right which is also proclaimed by Article 8 of the European Convention for the Protection of Human Rights and guaranteed by the European Court of Human Rights.
The right to privacy has also been enshrined in your jurisprudence. You have, in particular, strongly recalled "that under Article 2 of the Declaration of Human and Citizen's Rights: the purpose of any political association is to preserve the natural and imprescriptible human rights. These rights are freedom, property, security and resistance to oppression; that freedom proclaimed in this article implies respect for privacy" (Decision No. 99-416 DC of 23 July 1999, considering 45).
The right to family reunification and the right to normal family and private life are fundamental freedoms protected regardless of the biological or non-organic nature of the family concerned. Unless the biological criterion is established as a unique and exclusive criterion of the family, it is contrary to these fundamental principles to distinguish from genetic imprints the acceptable family from that which is not.
At this moment, no one must ignore that admitting it to foreigners is to bring into our law a univocal conception of the family that would go against the evolution of our civil law and the constant conquests for personal freedom and especially that of indifference for private life choices.
I-2. This distinction between the biological family and others first struck Council Directive 2003/86/EC of 22 September 2003 on the right to family reunification as long as the latter referred to in Article 4 as beneficiaries of this right children adopted by the applicant for reunification or his spouse.
That is, at the European Union level, the biological family is not the only eligible for family reunification.
I-3. In this case, Article 13 is implicitly opposed but necessarily to the family reunification of adopted children.
It is important to note that adopted children seeking a visa for family reunification will never be able to demonstrate a biological connection with the mother of the family who welcomed them under this institution!
Therefore, it is certain that the right to family reunification and the right to conduct a normal private and family life will be rendered ineffective because of an insurmountable obstacle on the path of the visa applicant who has no biological connection with his adoptive mother.
I-4. Beyond the legal regime of adoption - which does not exist in all countries - it is important to note that the Council of State has cancelled, on the basis of Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, the refusal of a visa for family reunification against a child collected by a Muslim family according to the so-called institution of kafala. That is, an existing institution in Muslim countries where adoption is prohibited. The administrative judge considered that this administrative decision "had a disproportionate breach of the purposes for which the decision of refusal had been taken and ignored the stipulations of Article 8 above" (Council of State, 24 March 2004, No. 249369; EC, 17 December 2004, No. 242192; EC, 16 January 2006, No. 274934).
Families who welcome these children and consider them to be theirs are already experiencing daily difficulties. With the article criticized, it is obvious that the path of family reunification will be closed to these families since, by construction, they will never be able to prove through DNA tests of biological filiation with the mother.
I-5. The criticized device also ignores the stipulations of Article 10, paragraph 1, of the International Convention on the Rights of the Child ratified by France: "In accordance with the obligation of the States parties under Article 9, paragraph 1, any request made by a child or his or her parents to enter or leave a State party for the purpose of family reunification is considered by the States parties positively, and The States parties further ensure that the submission of such a request does not result in undue consequences for applicants and their families. »
If the authors of the referral have not ignored your constant jurisprudence since 1975, they consider that this international treaty falls into the category of France's international humanitarian commitments and deals with fundamental rights and freedoms. In other words, they consider that a convention of this nature, with the responsibility of States parties of positive obligations, could not be opposed to the reservation of reciprocity of application by other States parties to the treaty. It would not be necessary to give treaties a value equal to or greater than the Constitution, but to apply Article 55 of the Constitution as long as an international convention whose reciprocity cannot be a condition of application in France and to make effective the rule that it has a value greater than the law.
This control is all the more desirable when such a treaty reinforces the guarantee of fundamental rights and freedoms guaranteed by the French Constitution. What is the case with the Convention on the Rights of the Child.
In this case, it is little to say that submitting children who are seeking to benefit from family reunification to genetic imprint tests or, on the other hand, making them impossible to regroup on the grounds that they do not have a biological link is not compatible with Article 10, paragraph 1, of the New York Convention.
I-6. By subordinating family reunification to a genetic footprint test reserved for the maternal filiation line, article 13 tends to render ineffective the right to family reunification for any request made by a child without a genetic link with the mother.
Moreover, implicitly but necessarily, this provision leads to the preference of the biological nuclear family to the detriment of other forms of recomposed or adoptive families.
Beyond the right to family reunification itself, it is indeed an infringement of the right to privacy that results from this mechanism.
It is a breach of equality before the law that results.
II. - Secondly, in fact, the mechanism as voted by the Senate violates the principle of equality between families at the expense of non-biological families, recomposed families and single fathers.
It is hardly necessary to recall that you guarantee respect for the principle of equality, including for foreigners (decision No. 89-269 DC of 22 January 1990), and that you regularly monitor it by censoring, for example, the provisions subordinating the right to house a foreigner at a certain level of resources (decision No. 2003-484 DC of 20 November 2003).
In this case, it is little to say that Article 13 introduces unjustified discrimination between foreigners who are in the same situation in the light of the fundamental rights they demand. No objective or rational criteria justify this difference of treatment.
And if, as Mr.Minister of Immigration and National Identity has stated, this provision is a new right, the question of why only biological mothers benefit from it must be immediately raised.
Indeed, the so-called DNA test will only be applicable as part of biological parentage. It follows that only mothers will be in the situation of establishing their biological relationship with the visa applicant.
On the other hand, as has already been widely shown, the father will never be able to administer this evidence. It is not uncommon that a father finds himself alone with his children: the mother was able to desert the family home, divorce, including by mutual consent, could be pronounced without any ties being maintained, the mother, unfortunately, may be dead. It will be observed, for the record, that article 16-11 of the Civil Code prohibits research by way of genetic imprints on a deceased person.
Certainly, the authors of the referral do not know that the Senate has amended the original text of the amendment by deviating the father from this arrangement, on the basis of the risks that this would lead to the presumption of paternity and the balance of families. This laudable intention to avoid a first coffin, however, leads to an equally insurmountable second obstacle. And avoiding a first unconstitutionality does not justify producing a second.
In the same way, and in any case, the adoptive family will not be able to overcome the procedural obstacle thus established.
If, by a new change of perspective, the Government had come to present its defence by claiming that, in the cases described above, the regime would ultimately be more favourable since not submitting the applicant to the DNA test, then it would then be necessary, always on the ground of the principle of equality, to question the causes of the choice of less favourable treatment to the detriment of the mother... If the Government were to support that the father would always be able to benefit from state possession, it was not clear why the mother, she, could not also benefit from it.
It is always in vain that the Government would seek to justify such discrimination by the purpose of the law. Because we don't see very well why giving preference to the mother, or the other way to depriving her, would be more effective from the point of view of controlling migratory flows or integration.
Ultimately, by some end of this provision, it is important to note that it is severely discriminatory.
At one of these principles you will invalidate Article 13.
III. - Third, it turns out that the use of genetic fingerprint tests within the framework of the foreign police is obviously disproportionate to the principle of human dignity.
You devoted this principle to the review of the so-called "bioethics" laws in 1994. Known by the president of the National Assembly of the time of the entire text by a letter without particular motivation, you considered that "the said laws set forth a set of principles, including the primacy of the human person, respect for the human being from the beginning of his life, inviolability, integrity and absence of a heritage character of the human body as well as the integrity of the human species affirmed; that
And: "that all the provisions of these laws implement, by conciliating them and not misunderstood the scope, the applicable constitutional norms" (Decision No. 94-343/344 DC of 27 July 1994).
Among the provisions that you had then examined the constitutionality under the overall referral of the President of the National Assembly was the articles in numbers 16-10 to 16-13 of the Civil Code.
Article 16-10 is fundamental in this respect, as it states: "The examination of a person's genetic characteristics can only be undertaken for medical or scientific purposes. Certainly, derogatory possibilities exist and are, in particular, defined by Article L. 16-11 of the Civil Code. However, these are strictly limited.
They sign up:
- either as part of a civil procedure for establishing or challenging a filiation link, or for obtaining or deleting subsidies, as part of an instruction given by a judge;
- either as part of a judicial investigation for the suppression of a criminal or criminal offence.
It is indeed true, in this regard, that you have admitted the use of DNA tests in criminal investigations (decision No. 2003-467 DC of 13 March 2003, considering 52 to 57).
Thus, it is a very limited framework that the use of genetic imprint tests meets the requirements of: the recognition of human rights (art. 16-11, para. 2), or the suppression of serious offences already committed.
However, in this case, the disputed device goes in a very different direction: the use of genetic fingerprint tests is, on the one hand, intended for administrative police purposes and, on the other hand, tends to deprive the exercise of constitutionally guaranteed rights.
It is clear that the criticized article goes beyond the limits within which the law had so far remained in order to respect the constitutional framework that you solemnly laid.
Disproportion is all the more evident because the genetic fingerprint identification test will limit the exercise of constitutionally guaranteed fundamental rights: the right to family reunification and the right to privacy. That is, for example, the exact opposite of the second paragraph of Article 16-11 of the Civil Code which makes this test a way to be restored in its rights!
It is important to remember that you do not hesitate to censor for manifest error of appreciation a legislative provision that ignores a constitutional principle while one can arrive for the same purposes by other means. You have done so in the particularly sensitive matter of the fight against terrorism (Decision No. 96-377 DC of 16 July 1996).
The restriction on the exercise of a fundamental right - which restriction applies only to certain aliens outside of any objective and rational criteria - through the use of DNA tests is an extension of identification by genetic processes manifestly disproportionate to the principle of human dignity.
From this leader again, the censorship will run.
IV. - In any case, and in the last place, Article 13 ignores the principle of clarity of the law, the constitutional objective of accessibility and intelligibility of the law and, in fine, reveals a violation of Article 34 of the Constitution for vice of negative incompetence.
You have regularly recalled that these constitutional principles and objectives are based on articles 4, 5, 6 and 16 of the Declaration of 1789 and 34 of the Constitution. You do not hesitate to censor legislative provisions on this basis (Decisions No. 2000-435 DC of 7 December 2000, No. 2003-475 DC of 24 July 2003). The same is true when the legislator does not sufficiently specify the provisions voted, and particularly when the fundamental rights are concerned (decisions No. 99-423 DC of 13 January 2000, No. 2000-433 DC of 27 July 2000).
As the Spanish Constitutional Court has ruled: "any lack of precision in the law on the limits of fundamental right [in question] leads to indetermination. And in such a case, in the absence of reasonable interpretation, the law no longer performs its function as a guarantee of the fundamental right it restricts, inasmuch as it strictly and simply inhibits itself in favour of the will of the person who is obliged to enforce it, thus violating not only the effectiveness of fundamental law, but also of legal security" (Spanish Constitutional Court, Plenary Assembly, November 30, 2000).
In this case, section 13, as amended by the Senate, is a continuation of unrecisions and, in order to take over the enlightened terms of the member responsible for this provision, ultimately constitutes a "gas factory". Certainly, the additions of the High Assembly were presented as seeking to surround sufficient guarantees an unconstitutional mechanism in itself. However, not only has the Senate been able to purge the original vice, but, in addition, there has been a lack of clarity and intelligibility, placing in many shade areas the conditions for the application of this procedure.
A list of these issues left outstanding by the legislator will only be submitted while the exercise of fundamental rights is at issue:
(i) As we have seen before, only the mother will be able to benefit from the genetic footprint test to establish her right to family reunification. What is then the rule applicable to father, adoptive family or recomposed families? The law remained silent on these points and it is therefore the administrative aisle and the chance of the windows that will determine the conditions for the application of a fundamental right. This fundamental right will be subject to procedures which no one can at this time know.
(ii) The conditions for the collection of consent are left in the blur, whereas articles 16-10 et seq. of the Civil Code show that this, in the light of the matter being dealt with, is the responsibility of the legislator. Moreover, it should be noted that in the absence of the consent of the mother the legislator has remained silent on the consequences that will result in the implementation of the fundamental right in question. This is all the more embarrassing from the point of view of the principles that Article 16-10 of the Civil Code expressly provides that consent to the genetic identification test is freely revocable. Will it be the same here and, if so, what will be the consequence of the family reunification procedure?
(iii) The intervention of the judicial judge as a guarantee is an enigma. How can the Court of Grand Instance of Nantes implement its investigative power, for example, with regard to civil states under the administration of other sovereign states? How will the principle of the conflict be applied when the applicant for the visa is located away by thousands of kilometres from the court enclosure and cannot come to the court to be heard since they do not have a visa to access the national territory. Beyond that, it should be noted that Article 13 is silent on open remedies against the decision of the High Court to conduct a possible genetic footprint test. In addition, it is appropriate, provided that there is a judicial procedure in which the rights of the defence are to be exercised, to determine who will be responsible for the costs of lawyers inherent in complex civil proceedings. You have already censored a provision restricting the rights of foreigners whose conditions of implementation reveal a breach of equality before public office (decision of 20 November 1993). In order to avoid the unconstitutionality of charging the applicant with the costs arising from the DNA tests, the latter was transferred to the State. However, by bringing the applicant to the visa and his family the costs of lawyers related to this procedure, the same unconstitutionality remains and censorship must therefore be pronounced.
(iv) The conditions of genetic identification are left to the regulatory authority. However, certain conditions are undoubtedly within the law. Thus Article 16-12 of the Civil Code states that, in the course of a judicial process, the persons authorized to proceed must be registered on a list of judicial experts. There is a guarantee of human rights. In addition, the lack of precision in this regard in the above-mentioned text, one must wonder how such a guarantee can be implemented when the sampling takes place thousands of kilometres from the national territory. Unless it is necessary to imagine that consular agents serving abroad will soon extend the list of judicial experts to the courts. It would certainly be original and cozy during the revision of the judicial card.
(v) No criterion is specified in the law to regulate the conditions under which the list of countries whose civil status presents deficiencies such as genetics must be used to supplement them. It is in vain that the Government would claim your 2003 decision on the right of asylum validating the "safe country" list category (Decision No. 2003-485 DC of 4 December 2003). In that case, the concept was governed by pre-established and precise legislative criteria, and also by international instruments. The list was also prepared by an independent body. In this case, it is necessary to admit that nothing such exists. In addition, questions must be asked about the competence of the legislator and, a fortiori, the regulatory power in the absence of a guideline, to assess the conditions for the organization of the civil status in other sovereign states.
(vi) Finally, it is important to note that the legislator has remained silent on the conditions of transmission and retention of sensitive data thus collected. It is only specified in Article 13 that: "The decision of the court and, where appropriate, the conclusions of the identification analyses authorized by the court are communicated to diplomatic or consular agents. Nothing is said about the communication of these results to the visa applicant or the conditions for the retention of these sensitive data. Because each genetic footprint is obviously a personal data that must be the subject of the greatest precautions. However, while no reference is made to the amended 1978 law, the constitutional protection of the right to privacy is not guaranteed in any way by article 13 criticized. The legislator has not even taken care to refer to the regulatory authority the definition of such guarantees. It is little to say that the legislature has remained below its own competence on a matter of public freedoms.
(vii) It will be added that the deadline for the adoption of the decree in the Council of State, preceded by the time necessary to collect the opinion of the Ethics Committee, followed by the procedure for the empowerment of the persons in charge of these tests, will not allow for the implementation of this provision until the beginning of 2009. However, this experiment must be completed by December 31, 2009 at the latest after an evaluation has taken place. It is little to say that the legislator has just invented the inapplicable law intended not to be applied.
Under these conditions, only censorship will prevent ridicule from being added to infamy.
All the more so, in this regard, one must wonder about the ability of the legislator to provide for an experiment when a fundamental right is involved as in this case. It is important to note that section 72, paragraph 4, of the Constitution has limited the exercise of the right to experiment for territorial authorities in terms that may be applicable to the present case: "Under the conditions provided for by an organic law, and except where the essential conditions for the exercise of public freedom or constitutionally guaranteed right, territorial authorities or their groupings may, as the case may be »
It appears consistent with the constitutional principles thus expressed to conceive that legislators also find a limit to their powers of experimentation when public freedom or a constitutionally guaranteed right is at issue. Certainly, the authors of the referral do not know that in a decision of 28 July 1993 (DC 93-322) you have admitted the ability of the legislator to derogate from a general framework through experiments. But it must be immediately noted that this was the legal regime of public educational and research institutions and not fundamental freedoms or rights. Still, it must be pointed out that you then framed this faculty.
On the other hand, admitting legislative experimentation when fundamental rights and freedoms are at issue would ignore the requirements of Article 34 of the Constitution as articles 6 and 16 of the Declaration of 1789.
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Thus, this article 13 lacks more than one title to the constitutional requirements whose fundamental rights must benefit. By leaving indetermination or blur the implementation of these freedoms recognized to foreigners, or by choosing the path of experimentation, the legislator was not at the end of his own jurisdiction and has ignored the principle of clarity and the constitutional objectives of accessibility and intelligibility of the law.
Of all these leaders, censorship is certain and it is the whole of Article 13 that must be invalidated.
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Article 63 precludes censorship on the grounds of violation of articles 39, paragraph 1, and 44 of the constitution and of the grave vice of negative incompetence.
V. - You conventionally consider that "a provision cannot be made by way of amendment if it is not related to the subject matter of the text deposited on the office of the first seized assembly" (Decision No. 2006-535 DC of 30 March 2006).
However, in this case, it is singularly difficult to establish a link between the provisions amending Act No. 78-17 of 6 January 1978 on computing, files and freedoms and the purpose of this Act for the control of immigration, integration and asylum.
Indeed, it appears that this provision concerns not only foreigners, but also French citizens. However, until proven otherwise, it seems certain that the right of foreigners is not intended to apply to French citizens.
No one can ignore that this provision, which is still very widely debated in the country, touches on the founding provisions of our social pact and first on article 1 of our constitution that: "France is an indivisible, secular, democratic and social Republic. It ensures equality before the law of all citizens without distinction as to origin, race or religion. She respects all beliefs. »
While the principles of this importance are in question, it is obviously contrary to your jurisprudence on the legislative procedure to amend our right to the detour of an amendment to a text whose purpose is not the fight against discrimination against French citizens.
Evidently the authors of the referral remain unwittingly engaged in the fight against discrimination, but still it must be the subject of coherent and comprehensive provisions and not of a provision made to the rescue, and to remain incomplete.
VI. - Because, in any case, and if you had to consider that this article proceeding with an isolated parliamentary amendment is not devoid of any connection with the criticized law, censorship should intervene from the negative incompetence leader.
This provision affects fundamental rights and individual and public freedoms of all importance. Therefore, it would have been necessary for the legislator to surround the conditions for the realization and use of ethnic statistics.
However, article 63 does not specify the destination of such treatments and the conditions of their realization.
These grievances can only lead to the censorship of this provision.
