Guillaume Drago is professor of public law at the University of Paris Panthéon-Assas.
On Thursday January 25, 2024, the Constitutional Council will deliver its decision on the immigration law.
This decision is expected and will say what within this law is or is not consistent with our constitutional rights and freedoms.
The political effect of this decision will be considerable but the legal effect will also be significant.
But the Constitutional Council is not going to build its decision on virgin ground.
Firstly because the constitutional principles in question are numerous and diverse: foreigners are obviously not placed in the same legal situation as the French, if only because they do not benefit from the same rights, such as the law politics of being a voter and elected official.
But this differentiation is strongly attenuated by the existence of constitutional principles with a social or family vocation, or even the existence of the right to asylum, rights enshrined in the preamble to the 1946 Constitution and preserved in the block of constitutionality with the Constitution of the Fifth Republic.
Also read: “The immigration law establishes the regularization of undocumented immigrants as a free pass”
Then, the jurisprudence of the Constitutional Council is of crucial importance in foreigners' law, particularly since a decision of August 13, 1993 (no. 93-325 DC), a decision rendered precisely in relation to a previous law relating to immigration and which sets out major principles for action and control of this sensitive area.
Certainly, the Council establishes a general principle according to which "
no principle or rule of constitutional value guarantees foreigners general and absolute rights of access and residence in the national territory
", a true principle of differentiation which places, says the Constitutional Council, foreigners in a different situation from French nationals.
The consequence is that, for foreigners, “
the conditions of their entry and stay may be restricted by administrative police measures conferring extensive powers on the public authority and based on specific rules
”.
Under these administrative police measures, the necessary control of entry into the territory and the regularity of stay meet an objective of constitutional value of safeguarding public order which includes the fight against irregular immigration as underlines a decision of June 9, 2011 (no. 2011-631 DC).
The French legislator is constrained, corseted, prevented from modifying legislation which everyone knows is extraordinarily favorable to foreigners, in that it confers on them fundamental rights and freedoms of constitutional value which are binding on all legislators in this area. .
Guillaume Drago
But these principles are also the tree that hides the forest of numerous rights granted to foreigners who live on our territory.
The decision of August 13, 1993 sets them out.
It is necessary to cite the two paragraphs of the decision of the Constitutional Council, as they widely open up the protection of the French Constitution to foreigners:
“
3. Considering, however, that if the legislator can take specific provisions with regard to foreigners, it is up to him to respect the fundamental freedoms and rights of constitutional value recognized to all those who reside on the territory of the Republic;
that if they must be reconciled with the protection of public order which constitutes an objective of constitutional value, include among these rights and freedoms, individual freedom and security, in particular the freedom to come and go, the freedom of marriage , the right to lead a normal family life;
that in addition foreigners enjoy rights to social protection, as long as they reside in a stable and regular manner on French territory;
that they must benefit from the exercise of remedies ensuring the guarantee of these rights and freedoms”
“4. Considering further that foreigners can avail themselves of a right which is specific to some of them, recognized by the fourth paragraph of the Preamble to the Constitution of 1946 to which the French people have solemnly proclaimed their attachment, according to which every persecuted man because of his action in favor of freedom has the right to asylum in the territories of the Republic
”.
On this reading, we understand how the French legislator is constrained, constrained, prevented from modifying legislation which everyone knows is extraordinarily favorable to foreigners, in that it confers on them fundamental rights and freedoms of constitutional value which are impose on all legislators in this area.
We must therefore wonder, not about the decision that the Constitutional Council will make in a few days, but about the follow-up that must be given to it.
Guillaume Drago
It is a safe bet that on January 25, the Constitutional Council will take up, in its decision, these considerations of principle from which it has never deviated.
We can even say that he has put them into practice for thirty years, with the help of the applicants and their lawyers, sometimes with the precision of a watchmaker, especially since any applicant, French or foreign, can contest before him a legislative provision entered into force by the priority question of constitutionality (QPC) procedure which maintains an already well-oiled control machine.
We must therefore wonder, not about the decision that the Constitutional Council will make in a few days, but about the follow-up that must be given to it.
On the side of the President of the Republic and the government, we already know the speech:
“we are sorry, but there is nothing we can do about it, the Constitutional Council has sanctioned the strongest measures of this law but they are not our doing : it is the right and even the extreme right who are responsible.
We told you so…”
On the side of the left opposition, the refrain will be that of defense of constitutional freedoms, recalled by our supreme jurisdiction.
The reaction of the Republicans will be closely scrutinized: observation of legislative impotence or burst of proposals.
It is towards a major constitutional reform that we must turn to reform the law of entry and residence of foreigners in France.
Guillaume Drago
The rest of the story remains to be written.
We must look further than the decision of the Constitutional Council of January 25, 2024. This decision will undoubtedly confirm well-established and stable case law.
This will also show how the legislator, torn between his antagonistic tendencies, does not know how to take current constitutional requirements into consideration.
But, seeing far away, doubt is no longer permitted.
It is towards a major constitutional reform that we must turn to reform the law of entry and residence of foreigners in France.
It will not be enough to enshrine a few principles in the Constitution and implement them through law.
It is a complete constitutional regime of this right that must be “backed” by the Constitution, in the way we proceeded with the Environmental Charter in 2005 but even more precisely, to “break” constitutional jurisprudence, according to classical terminology.
But not only that, because the real sword of Damocles comes from the law of the European Convention on Human Rights (ECHR) and the Strasbourg Court.
Even more, the Court of Justice of the European Union (CJEU) and the institutions of Brussels weigh very heavily on this right of foreigners.
And our international obligations are binding on the French legislator.
There is therefore only the Constitution to free us from these multiple constraints.
The sovereignty of France and that of the French demands it to regain control of our law.
We won't get there any other way.