On the French Immigration Bill

Short summary

The only matter of importance in Western political life is the issue of mass migration. As I write these words, France may be the first country to give itself the means of curtailing this problem. There has been some excitement around this news, and so I aim to explain to our friends what all the fuss is about.

It is important to first explain what the legislative process looks like in France. Only two bodies may initiate it, the government or the parliament. The Prime Minister (nominated by the President of the Republic, the Head of State) is the Head of the Government, composed of himself and the ministers. In practice, the President nominates a Prime Minister issued from a parliamentary majority often aligned with his political faction. Hence, the Prime Minister is merely a figurehead for the President.

Once a law (a “project” if from the government, a “proposition” if from the Assembly or Senate) is proposed, it must be debated and voted in a National Assembly or Senate commission. A member of the commission is designated (the “rapporteur”) to analyze the text and emits propositions in a report. The commission is then free to accept the text as is, amend it, or reject it. The commission then registers the text in the Order of the Day of the body to which it belongs.

The text is then debated in the chamber, where parliamentarians can further amend it. The members initially vote for each of the articles, before voting on the entirety of the text. Once adopted, the text is sent to the other chamber to start the same process again. If the next commission accepts the text without modifications, the text is adopted into law. Otherwise, should there be any amendments it is sent back to the first chamber. This process occurs often, back and forth, as you might expect.

If the government does not have confidence in the ability of the chambers to agree on a common text, it can summon a Commission Mixte Paritaire (Mixed Joint Commission). This consists in bringing together 7 deputies and 7 senators in a joint commission, with the same idea as above. If the government approves the text, it is then sent to both assemblies to be read. If the Commission cannot produce something the government approves of, the law is definitely rejected. Alternatively, if the Commission fails to produce a conciliation at all, the inter-chamber process begins again, and the government can choose to give the National Assembly the last word thus bypassing the Senate.

Project to control immigration, improve integration

The project was presented to the Council of Ministers on February 1st, 2023 by Minister of the Interior Gerald Darmanin, Minister of Justice Eric Dupond-Moretti, and Minister of Labor, Full Employment, and Insertion Olivier Dussopt. It was then submitted to the Senate.

Here are some excerpts from the exposition of motives for the law by the government:

France is proud to be a country of ancient immigration and rich in what this immigration has brought it. For twenty years, migratory flows have accelerated throughout Europe. It is necessary to look at this reality at a time when asylum requests, for example, are increasing by sixty percent in the European Union in 2022, to prepare our country for the challenges that await it, to better control our borders and fight against irregular immigration, to grant legitimate asylum requests, and ensure the effective integration of immigrants arriving legally on our territory.

Let us first recall that European integration is at the origin of increased mobility between Member States, which allows each French person to freely establish themselves among our partners and, conversely, to study or work there. With the rest of the world as well, migratory flows of all kinds have continued to progress.

Rrequest for asylum in France has thus tripled in ten years, going from 36,000 requests in 2010 to 121,268 in 2021, more than a third of which results from secondary movements within the European Union, after passing through a country of first entry, even if we experience a third less than in Germany. […]

Regarding asylum applications, this increased considerably from 2015 to 2019, during which the number of applications received at OFPRA increased from 80,075 to 132,625. […]

The professional integration of immigrants, particularly women, remains significantly lower than that of the rest of the population, due in particular to insufficient mastery of French.

The share of foreign nationals in delinquency also represents more than double their representation in the population, a situation which has deteriorated in recent years, particularly in large cities.

This migratory pressure is particularly marked in the Paris region and in some large metropolises, weighing on public services, particularly accommodation and housing.

This situation does not offer the conditions for successful integration.

It is therefore necessary to equip ourselves with new budgetary and legal tools, to initiate a structural reform of our asylum system, and to reinforce the requirements for successful integration through language, through respect for our values and through work. […]

The purpose of Article 1 is to make the first issue of a multi-year residence permit conditional on knowledge of a minimum level of French. This measure thus makes it possible to ensure the integration of foreigners benefiting from this residence permit, while assessing, on this occasion, the level of language and the effectiveness of the commitments made when concluding the republican integration contract ( CIR). […]

The objective of Article 2 is to organize the contribution of employers to the training in French of allophone foreign workers in order to promote their professional and social integration in France. […]

Article 3 creates, on an experimental basis, a temporary residence card mentioning “work in professions in shortage”. This new title will make it possible, during its testing phase, to open a path to residence at the sole initiative of the foreign national in an irregular situation exercising an employed activity while confirming the role of the State as regulator of social public order. Valid for one year, the residence permit will constitute a work authorization, without any action being taken by the employer.

The experiment is planned until December 31, 2026. A report taking stock of the implementation of this residence permit will be submitted to Parliament, it will specify whether the perpetuation of this permit is necessary. […]

Article 4 establishes a system of immediate access to the labor market for asylum seekers for whom it is highly probable, given their nationality, that they will obtain international protection in France. […]

Article 5 conditions the creation of an individual company to the regularity of the stay of its founder. […]

Article 8 creates an administrative fine punishing employers of foreigners who do not hold a permit authorizing them to work. This new fine, imposed by the department prefect, is in addition to existing criminal and administrative sanctions and will make it possible to sanction abusive employers in a simplified manner. […]

The first purpose of Article 9 is to adjust the regime of almost absolute protection against expulsion from which certain foreigners benefit, by allowing it to be overridden when they have been convicted of crimes or misdemeanors punishable by ten years or more of imprisonment or by five years in repetition of crimes or misdemeanors punished by the same sentence. […]

On the other hand, article 9 provides for drawing the consequences of adjustments to the expulsion regime to facilitate the adoption of additional penalties prohibiting access to French territory. For consistency, it is proposed to harmonize these same protections which appear in article 132-30-2 of the penal code, a mirror article for prohibitions on French territory and that of the CESEDA for expulsions. It would in fact be paradoxical and incoherent if the criminal judge who declares a foreigner guilty for acts of particular gravity could not pronounce a ban on French territory even though on the basis of these same facts the prefect could pronounce, subsequently of this conviction, an expulsion.

Furthermore, the bill aims to facilitate the expulsions and deportations of foreigners who do not respect the values of the Republic and commit offenses on the national territory. In this regard, it appears inappropriate not to be able to impose bans from French territory, an additional penalty which must be specially provided each time by the legislator for the offense in question, for facts against which the Government fights as a priority. Thus, serious violence against the internal security forces, proven domestic violence but for which the temporary incapacity for work does not reach nine days, cannot today be sanctioned by the criminal court by a ban from French territory. Likewise, it appears inconsistent that such an additional penalty is not provided for aggravated thefts, some of which are nevertheless punishable by seven or ten years of imprisonment, such as thefts committed with the help of minors or thefts committed in residential premises. The bill therefore extends the possibility of ordering bans from French territory for these categories of offenses. […]

The purpose of Article 10 is to reduce the scope of protections against decisions imposing an obligation to leave French territory (OQTF) when the foreigner has committed acts constituting a serious threat to public order.

These protections target different categories of people due to the duration of their presence on French territory, the nature and seniority of their links with France and their personal situation.

However, they represent a brake on removal, more particularly in cases where the foreigner represents a serious threat to public order, public security, or state security, having justified the withdrawal of his or her residence permit. The principle retained is therefore that of preserving the protections in force, subject to behavior seriously threatening public order. The notion of “serious threat” already appears in article L. 631-1 of CESEDA. It is assessed by the judge on the basis of a range of clues (topicality, seriousness, repetition of the acts committed). It applies to cases of convictions, but also to situations where the materiality of the facts is established, but has not given rise to a legal conviction (e.g. domestic violence where the victim has not filed a complaint).

This reform will make it possible, in the case where the foreigner threatens public order, not to see an automatic framework of protections provided for by law applied, but to better take into account, in a specific way, the imperative of safeguarding the public order with regard to the personal situation of the foreigner.

The only exception to this removal of protections in the event of a serious threat to public order concerns minors, who, not being subject to the obligation to hold a residence permit, cannot be removed for illegal residence.

Thus, this new wording does not have the effect of exempting decisions requiring people to leave French territory from the provisions of the European Convention for the Protection of Human Rights and Fundamental Freedoms, and in particular its Articles 3 (protection against risks of torture and degrading treatment) and 8 (right to private and family life), the administrative authority must, under the control of the administrative judge, take measures which ensure a fair reconciliation between these principles and the risk of disturbance to public order.

The measure preserves the particular case of European Union nationals and members of their families who have been staying in France for more than ten years, by allowing their removal in the event of an imperative need for public security. […]

The purpose of Article 12 is to prohibit the placement in administrative detention centers of any foreign minor under the age of 16. Today, no minor can be placed in detention alone; however, under certain conditions, it is possible to detain an adult foreigner with the accompanying minor foreigner. […]

The purpose of Article 14 is to punish smugglers more harshly to put an end to the tragedies resulting from attempted crossings by sea. On November 24, 2021, twenty-seven illegal foreigners who were trying to reach British shores died, drowned in the English Channel after their boat sank off the coast of Calais.

The main culprits for this situation are smugglers who, taking advantage of vulnerable populations, expose them to dangerous sea crossings to the United Kingdom. More than 1,500 smugglers were arrested in 2021. The seriousness of such acts, comparable to human trafficking, and their multiplication, now justify the worsening of the penalties currently incurred, with an emphasis on the heads networks.

The Senate commission amends the text a bit, sends it over to the chamber and approves it:

• Deletes articles 2 and 3 on labor permits from the text

• Adds an addition to article 4 for a temporary experiment until 2026 granting undocumented migrants to obtain labor permits for critical professions. These would be done on a case by case basis, and approved by prefects

• Expands the provisions for deportations, and conditions foreign aid and visas on foreign nations delivering consular laissez-passers to facilitate expulsion of their citizens

• Provision for immigration quotas. These would be classified by categories and voted every three years.

• Instead of 18 months in France, the ability to regroup families is lengthened to having been in France for 24 months.

• Restricts access to residence permits for partners and parents of French citizens

• Requiring a “return” deposit for students before obtaining residence permits

• Restricts the conditions of entry of foreigners with medical needs, and restricts medical access to undocumented migrants

• Re-establishes the criminalization of illegal stays, with a fine of 3500 euros

• Conditions access to housing and family assistance to foreigners by requiring a stay of 5 years in France

• Protects foreigners victim of predatory landlords, by offering residence permits if reported

• Gets rid of the acquisition of French citizenship for foreigners born in France upon reaching majority

• Increases requirement of stay in France to 10 years before naturalization

• Requires a commitment to upholding Republican values

Thus begins the dance and the National Assembly receives the text in its own commission, sends it to the chamber. Before discussion on the text occurs, the Green party proposes a motion to reject the text. A large part of the Republicans (Center/Mainstream Right) and the National Rally (Le Pen) vote for the motion along with the Leftist parliamentary alliance. Thus the text is rejected by the Assembly with no debate whatsoever.

Mixed Commission

Minister of the Interior Darmanin submits his resignation to the President. It is rejected. The President tasks him with finding a way to salvage the law with the deputies from the LR party.

The Executive chose to summon a mixed commission to force the issue. The Commission Mixte Paritaire was therefore summoned as follows:

• For the National Assembly :
  - 3 députies Renaissance (Macron’s Party)
  - 1 deputy Démocrate
  - 1 deputy Rassemblement National (Le Pen)
  - 1 deputy La France Insoumise (Far Left)
  - 1 deputy Les Républicains (Mainstream Center Right)

• For the Senate :
  - 3 senators Les Républicains 
  - 1 senator Union centriste
  - 2 senators Parti Socialiste 
  - 1 senator Renaissance

As you can see, the Left created a situation where the government found it convenient to find common cause with a parliamentary commission necessarily composed of quite a bit of right wingers.

The Commission agreed to adopt the Senate’s version of the text with a few modifications:

• The state medical assistance to undocumented migrants is maintained

• Addition of stripping French citizenship from any dual-citizens convicted of murder of any person holding public authority

• The removal of automatic citizenship of foreigners born in France is maintained, these will have to make the request themselves

• Prohibiting the placing of minors in administrative detention centers (azylum, etc)

• The provisions on family regrouping are maintained, and even more restrictive. “Stable, regular resources” are required, as well as health insurance and minimum age of the partner of 21 years old

After this debacle, the text is sent back to the Senate and the National Assembly.

Both chambers adopt the text, after a short attempt by the Left to once again motion to reject with no debate.