FECL 18 (September 1993):

CONSTITUTIONAL COUNCIL ANNULATES PROVISIONS OF "PASQUA BILL" ON IMMIGRATION

By decision of August 13, the French Constitutional Council declared partly or entirely nill 8 of 51 provisions of the "law on the entry and stay of foreigners" adopted in final reading by parliament in July (see FECL 15, p.3; FECL 17, p.7). However, on another Pasqua bill, the law on identity checks, the Council only expressed "interpretational reservations" with a character of not much more than recommendations.

Visibly angered by the decision, Prime Minister Balladur announced that he might press for an amendment of the constitution in order to pursue the government's immigration policy goals.

The decision of the Constitutional Council concerns the following domains:

• "Mixed marriages" (between a french and a foreigner). They may not be subjected to any paricular controls or restrictions. In particular, mayors will not have the right to suspend the celebration of marriages suspected to be of convenience. The Constitutional Council is of the opinion that a respective provision in the law "breaches against the principle of the freedom of marriage which is one of the components of individual liberty".
• The provision permitting the imprisonment for up to three months of foreigners refusing to reveal their identity. The Constitutional Council found that if the government wished to maintain this form of detention, it would have to grant to the foreigners concerned the procedural guaranties equal to those offered in the framework of detention on remand.
• Right of asylum. The Council annulated all provisions authorising the police administration of the préfectures to filter asylum applications before they are considered by the refugee board (OFPRA), on the gounds that every asylum seeker, including those whose application has been turned down in another EC-country must have the right of access to a due procedure in France.
  This decision drew particularly choleric reactions from Interior Minister Pasqua. As a result of the Council's decision, the Schengen Agreement had become inapplicable for France, the Minister said. Thousands of false refugees rejected by Germany, "economic refugees from Turkey" and Algerian "terrorists of the FIS" would now poor into France.
• Expulsions. The Council found that the automatic one year interdiction of entry into France for all foreigners subject to an expulsion order was unconstitutional and in breach of the declaration on human rights. The provision was invalidated as a whole.
• Family reunion. As opposed to the Pasqua law, foreign students will further have the right to bring their wives and children to France and divorced or separated foreigners will not have to wait for two years before being joined by their new spouse. Both provisions are declared nill on the grounds that everybody has a right to "live a normal family life".

Comment:

Despite the ruling of the Constitutional Council, the core of the Pasqua bills on security and immigration remains untouched. In a press release commenting the decision GISTI (a Paris based organisation in support of immigrants) stresses that the Council has all the most "cut down some particularly thorny trees in a forest of injustice and discrimination".

Indeed the laws' philosophy of dealing with foreigners mainly under an angle of public order and security, the restrictions of legal residence pushing many immigrants into clandestinity, the limitation of complaints procedures against an arsenal of administrative and judicial measures of exclusion, the suppression of all social protection for certain categories of foreigners living in France and the extensive use of electronic data registers leading to more police control have not lost much of their grim character.