Immigration law: “Let’s loosen the excessive constraint that the jurisprudence of the Constitutional Council imposes on Parliament”

Jérôme Roux is an associate professor of law and professor of public law at the University of Montpellier.

Of the 86 articles of the immigration law before it, the Constitutional Council censored 35, including 31 in full.

With three exceptions, these numerous censorships were due to procedural defects, sometimes raised ex officio, in provisions added by way of amendments from the senatorial right to the bill, the volume of which had thus tripled.

More specifically, they noted the absence of a link between these amendments and the initial version of this project.

We will not criticize the Constitutional Council here for having made massive use of this procedural “means” of censorship which exempted it from examining in substance the conformity with the Constitution of controversial provisions, of which its decision therefore does not prejudge as he took care to specify this.

In this way, he in fact sought to dodge the maneuver of the executive power which intended to make him take political responsibility for the invalidation of measures desired by LR and RN parliamentarians and undoubtedly approved by a majority of French people, but that the Minister of the Interior himself considered them to be “manifestly contrary to the Constitution” and from which the President of the Republic had publicly distanced himself.

However, this usage spectacularly highlights the problematic nature, in itself, of constitutional jurisprudence, both too restrictive in principle and very haphazard in its handling, on the control of amendments made, most often by parliamentarians, to the texts of laws during legislative debates.

From a decision of December 29, 1986, this case law had, in the original silence of the Constitution on this point, initially established as a rule the unconstitutionality of any provision resulting from an amendment "without link" with the text of the law under discussion, with a view to preserving its overall coherence.

Then, considering that it restricted too much the exercise of parliamentarians' right to amend, although it was also applicable to amendments tabled by the government, the constitutional revision of July 23, 2008 intended, if not to break it, at least to 'to relax considerably by now providing, through a positive wording added to article 45 paragraph 1 of the Constitution, that

even indirect

.

In this case, this led to the censorship of numerous provisions whose connection with the achievement of the first of the objectives stated in the unchanged title of the law,

, was nevertheless indisputable.

Jerome Roux

However, this clear desire for relaxation has remained a dead letter.

Indeed, the case law did not experience any notable change after the entry into force of the 2008 revision, as if its sole purpose was to limit itself to codifying it according to constant law.

On the contrary, the method, explained since a decision of December 20, 2019, which governs the assessment of the existence or not of such a link, tends to confirm the severity of the control exercised in this regard.

In fact, this link is not appreciated, as simple common sense would suggest and as the aforementioned letter of Article 45 would allow, in relation to the object and purpose of the project (or proposal) of law considered as a whole, as they result from the explanatory statement and, often, from the (original) title of the text which summarizes its spirit.

It is evaluated, in a meticulous manner, in relation to the various original articles of this text, whatever their subsequent destiny.

In this case, this led to the censorship of numerous provisions whose connection with the achievement of the first of the objectives stated in the unchanged title of the law,

, was nevertheless indisputable (independently of the question of their compatibility in substance with the Constitution).

This was the case, for example, of those which tended to restrict the benefit of family reunification and the access of foreigners in a legal situation to non-contributory social benefits, to repress sham marriages more severely or to subordinate development aid to cooperation. of beneficiary States in the fight against irregular immigration.

Consequently, even beyond its spectacular application to the particular case, this case law deserves to be reconsidered to loosen the excessive constraint it imposes on Parliament and gain intelligibility and coherence.

Jerome Roux

Excessively strict, this jurisprudence is also very random, to the point of making the future sentence completely unpredictable and often questionable, whatever its meaning, whether or not it is unfavorable to the provision in question.

In this case, for example, the amendment tending to condition the issue of a residence permit in France for family reunification on prior proof by the foreigner of a certain level of knowledge of the French language, was is it really devoid of any link, even indirect, with article 1 of the initial draft which nevertheless subordinated the issuance of multi-year residence permits to a similar condition of mastery by the applicant of a minimum level of French?

Likewise, the provision added during the debates which tended to repress the illegal stay of a foreigner on the national territory, could it not have been linked, even indirectly, to the initial article 14 of the project which increase the penalties punishing the offense of aiding, in particular, such an illegal stay?

Consequently, even beyond its spectacular application to the particular case, this case law deserves to be reconsidered to loosen the excessive constraint it imposes on Parliament and gain intelligibility and coherence.

It is up to the Constitutional Council to submit its work on the profession for this purpose.

Failing this, the constituent power could be led to oblige it through a firmer constitutional revision than that of 2008. In this case it would remain to be hoped that the Council complies this time, remembering, as formerly taught one of its members, Dean Vedel, that

.