After last weekend's demonstrations demanding the withdrawal of the text, the Constitutional Council must deliver its opinion, Thursday, January 25, on the very controversial immigration law.
The Sages could reject dozens of measures in this text defended by the majority and adopted thanks to the support of the right and the far right, who largely contributed to hardening the initial bill.
According to constitutional law specialists, there is little doubt that part of the text was censored.
By the government's own admission, certain articles violate the fundamental law.
“The measures are manifestly and clearly contrary to the Constitution,” admitted the Minister of the Interior, Gérald Darmanin, during the vote in the National Assembly on December 19.
The President of the Republic, Emmanuel Macron, who himself referred the matter to the Council, recently considered, during his press conference on January 16, that the text be "corrected for any possible censorship".
Furthermore, three other referrals were filed by the President of the National Assembly, Yaël Braun-Pivet, and by left-wing senators and deputies, who contest the constitutionality of several aspects of the text and denounce the presence of legislative cavaliers, that is to say provisions having no connection with the object of the law.
The Legislative Riders
Before even assessing its constitutionality, the Wise Men will therefore expunge the text of its intruders – provisions which have no connection, from a legal point of view, with a law aimed at “controlling immigration” and to "improve the integration" of foreigners in France. Of the 86 articles, around thirty were reported as such by left-wing deputies and senators.
"Article 45 of the Constitution requires that when amending a bill or proposed law, the amendments must be related to the object of the law. For example, is asking for bail to non-EU foreign students allows for better control of immigration and promotes integration?" asks Thibaud Mulier, professor of public law at Paris-Nanterre University.
The Wise Men will in particular be required to examine the relevance of the creation of a file of delinquent unaccompanied minors (article 39), the end of the automaticity of land law (article 25) or even the tightening of the conditions of access to nationality (article 26).
“The acquisition of nationality is not directly linked to the migration issue but falls under civil law,” believes Samy Benzina, professor at the University of Poitiers and specialist in the Constitutional Council.
"Which means that the Council will not examine these provisions on the merits. In other words, it will not determine whether the legislator could constitutionally create a forfeiture of nationality for homicides committed against holders of public authority. It will simply consider that this provision is unrelated to the project."
According to the experts interviewed by France 24, the immigration law could pay before the Sages for its chaotic legislative journey, completed in the joint committee, where most of the amendments were made.
“This is what we call the funnel rule in legislative procedure: the further we advance in the procedure, the more the amendments must only concern provisions which have already been discussed by parliamentarians. A new article added in joint committee is therefore likely to be considered as a rider, to avoid abuse at the end of the examination", specifies Samy Benzina.
Measures contrary to the Constitution
After having cleaned the text of its legislative riders, the Sages will then be able to proceed to examine the merits of the various articles.
According to the grievances of the left but also of the President of the National Assembly, certain measures of the law undermine respect for private life, the right to lead a normal family life or even the principle of equality, guaranteed by the Constitution.
“An attack on rights and freedoms is possible but the judge, and the Constitutional Council in particular, requires that it be justified, adapted and necessary. In short, this attack must be proportionate to the objective pursued by the law ", summarizes Thibaud Mulier.
Among the articles likely to cause a "disproportionate attack on the rights of foreigners", Samy Benzina points to article 3 on family reunification, which raises the age requirement for spouses from 18 to 21 years.
"The legislator's argument is to say that it is a question of avoiding arranged marriages but the Constitutional Council risks censoring this provision because the criterion chosen has no rational and objective basis. Why 21 years? That seems be an arbitrary choice", believes the public law expert.
“On the other hand, the six-month extension of the duration of residence before being able to benefit from the mechanism [of family reunification, Editor’s note] should not be considered as a disproportionate attack” on the rights of foreigners.
Another article in the spotlight, that requiring a deposit for foreign students.
"The problem is twofold here. First of all, the provision is too imprecise: we do not know the amount of the deposit, nor how it will be collected, etc... Then, there is a question about a more classic problem which is that of the breakdown of equality", explains Thibaud Mulier.
See alsoImmigration law: higher education is on the rise
Finally, among the most anticipated decisions of the Constitutional Council are those concerning Article 19, considered by some observers as a form of national preference, a flagship concept of the National Rally, popularized by Jean-Marie Le Pen's National Front.
It introduces the conditioning of certain social assistance to the fact of working or to a minimum duration of residence or affiliation.
“This involves limiting access to non-contributory social benefits, such as personalized housing assistance (APL), to people who have lived for five years or to people who are working. This poses a real problem at the level of the principle of equality since this aid is not linked to the fact of having contributed through one's work. But the Constitutional Council could also consider that in any case, one cannot condition the payment of compensation on a length of residence. these services. It would be a more ambitious solution but also more politically risky", analyzes Samy Benzina.
The special case of article 1
Article 1 poses another type of problem with regard to constitutional law.
The latter imposes on Parliament a debate on the orientations of migration policy and the setting of entry quotas into France.
"Isn't the legislator making, here, an injunction to the government when it is indeed the executive which determines and conducts the policy of the nation, according to article 20 of the Constitution? Some will say that it "is possible, particularly in view of the old jurisprudence of the Constitutional Council. Others assure that setting a migratory quota does not fall within the role of the legislator but of the regulatory power", specifies Thibaud Mullier, according to whom the decision of the Sages remains difficult to anticipate.
For his part, Samy Benzina predicts an "almost certain" censorship of article 1. "The legislator cannot impose an annual debate in Parliament for a very simple reason: Parliament and the government both have freedom in matter of the agenda which governs the functioning of the assemblies. The law would here encroach on this functioning which is enshrined at the constitutional level."
Towards partial or total censorship?
In their decision on Thursday, the Sages have the possibility of censoring certain articles or the entire text.
This last hypothesis, however, seems the least likely, according to the experts interviewed by France 24.
"There are two possible reasons: either there was an attack on a procedural principle in the adoption of the law or on a principle of separation of powers, or the unconstitutionality is so important quantitatively that it would irradiate the whole of the text", explains Thibaud Mulier.
"The most probable is to arrive at a partial censorship of the text with reservations of interpretation, that is to say that certain provisions will not be declared in conformity with the Constitution. The President of the Republic will therefore be able to promulgate the law but amputated of these provisions."
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"Of the 86 articles, 44 are contested. However, the Constitutional Council will only control these while the rest of the text will undoubtedly not be examined. Therefore, if there is censorship, which is probable, it will necessarily be partial "The question that arises is the extent of this censorship," says Samy Benzina.
The fact remains that predicting the decisions of the Constitutional Council is a discipline that even the most experienced public law experts practice with the greatest caution, concludes Thibaud Mulier.
“The Constitutional Council sometimes has its reason which reason ignores.”
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