Does France's hard-line immigration law breach the constitution?

A top French court is reviewing the government's controversial immigration reform to check that measures toughening the treatment of non-EU migrants do not breach France's constitution. RFI looks at what the legal experts will be considering – and what they might rule has to change.

A toughened revision of the government's immigration bill was passed on 19 December thanks to support from the right-wing Republicans (LR). It was also backed by Marine Le Pen's far-right National Rally (RN).

The law makes it more difficult for non-EU migrants to bring family members to France, and delays their access to welfare. Another controversial provision makes it harder for immigrants to claim social benefits, including healthcare.

Left-wing parties voted against the reform, some members of Macron's centrist Renaissance party abstained, and the health minister resigned in protest.

Rights groups have denounced it as “the most regressive immigration law in decades”, while a third of France's 101 departments said they would refuse to implement the provisions on benefits for non-citizens.

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President Emmanuel Macron has accepted that some of the law's provisions could be unconstitutional and on 21 December sent it to the Constitutional Council – which upholds the principles of France's constitution – for review and approval.

Separate referrals have been made by left-wing MPs and senators, as well as the president of the National Assembly, Yaël Braun-Pivet – a member of Macron's Renaissance party.

Contentious areas

The day after the immigration bill was passed, the chair of the French parliament's Law Commission, Sacha Houlié, said that "around 30" provisions could be censured by the council.

"The council can base its censure on two grounds," says Christophe Boutin, an expert in public law.

"Either it's because the provision has no direct link to the purpose of the proposed law and was added on during the reading; or because it doesn't conform to the constitution and notably all the elements in the preambule of 1946, which refer to freedom to come and go and fundamental rights."

Many of the contested parts of the law concern breaches of the equality of treatment enshrined in the council's jurisprudence – although as Boutin points out this applies only to those who have a legal status in France, not to undocumented immigrants.

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Among the provisions singled out by Braun-Pivet is Article 1, which says Parliament should hold an annual debate to set migration quotas.

"Applying for legal status in France depends on criteria set by the legislator, but you can't apply these criteria arbitrarily," Benjamin Morel, an expert in constitutional law, told Public Sénat.

"If these criteria are applied to a hundred or so newcomers but not to the 101st for reasons that have nothing to do with his or her situation [...] that's fundamentally problematic."

Other contentious provisions highlighted by Braun-Pivet concern the longer residency required for non-EU migrants to be able to apply for family reunification, which could breach the principle of protecting family life.

And longer residency to qualify for family allowances or personalised housing benefit, as provided for in Article 19, could also create inequality between French and foreign residents.

Likelihood of changes

The council has the power to remove some provisions altogether before the law is promulgated by the president.

"Some elements will likely be sanctioned as unconstitutional," says Boutin,"but it is highly probable that others will be declared constitutional but subject to certain conditions, and this will soften the text for migrants."

Most changes will concern the 60 articles that right-wing MPs added to the original text.

Should the council revise or even strike them down, the text could end up resembling the original, milder version that Parliament rejected in mid-December.

While possible, Boutin says this would be the "extreme-case scenario" and clearly unacceptable to the right.

"The Constitutional Council will take a lot of precautions and avoid giving the impression it's going back to the initial version. It will likely say the text is constitutional overall but that some provisions are subject to conditions."

He cites the example of the provision making it easier to deport illegal migrants, one of the reform's objectives.

"The council could validate it but on condition that all possible legal recourses have been exhausted, including taking his/her case to the European Court of Human Rights."

Presidential gamble?

Boutin confirms it's "very rare" for a French president to call on the Constitutional Council.

Macron critics accuse him of getting the court to mop up the mess caused over a deeply divisive law that has pandered to the far right.

Marine Le Pen claimed it as an "ideological victory".

Despite this, Boutin believes Macron isn't taking a risk.

"Either the council removes elements they consider unconstitutional and Macron will say, 'I was right and did what was necessary to defend the bill', or it says it is constitutional and he can say: 'I didn't agree but I'm not the one to judge and can't impose my will.'"

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However, the council's president, Laurent Fabius, has been at pains to defend the court's independence from what he sees as political interference.

"The Constitutional Council is neither an echo chamber for opinion trends nor an appeal board for the choices of Parliament," he said this week.

Opponents of the immigration reforms are hoping the council will be harsh when it renders its verdict on 25 January.

After supporters of undocumented migrant workers marched against the bill on Sunday, 200 figures from the civil, cultural and political sphere have called for a massive rally on 21 January.

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While demos can raise public awareness over the hardline reform, Boutin says they will have "no impact" on the council's decision.

“During his New Year greetings, Fabius reminded President Macron that the council judges the law, and only the law. It doesn't give in to pressure from either government or the street."