프랑스 극우파 정치인들이 주장하는 가족결합권 폐지, 왜 불가능한가?

프랑스 극우파 정치인들이 주장하는 가족결합권 폐지, 왜 불가능한가?

홈/프랑스 극우파 정치인들이 주장하는 가족결합권 폐지, 왜 불가능한가?

프랑스 극우파 정치인들이 주장하는 가족결합권 폐지, 왜 불가능한가?

연보라 (이주연구 인턴)

Held in April 2022, the French presidential election ended with the victory of the incumbent president, Emmanuel Macron, with 58.5% of the votes against 41.5% made by his rival, far-right candidate Marine Le Pen. The situation is nevertheless nonreassuring: far-right candidates surpassed the victorious candidate (27.8%) in the first round with 32.3% of votes in total ; in the second round – where a duel Macron – Le Pen was formed just as in 2012 – Marine Le Pen collected 2,600,000 more votes than in 2017 while Emmanuel Macron lost 2 millions.[1] Undoubtedly, the far-right has made strong gains the past five years, despite Emmanuel Macron’s promise in 2012 to “do everything in [his] power […] to ensure that there are no more reasons to vote for the extremists”[2].

It is no surprise that the presidential program of all three far-right candidates pledged for reinforcement of immigration control – if not, full stop. In order to do so, they insisted on restricting the right to asylum and on abolishing the jus soli, as well as the right to family reunification.

Amongst the abovementioned legislations, the right to family reunification has attracted my particular attention. In fact, because I have seen multiple times far-right politicians accusing the family reunification procedure as being one of the main culprits for uncontrolled immigration in France. For instance, the far-right candidate, Eric Zemmour – who arrived 4th in the first round with 7.07% of the votes – called for its abolition asserting that “for the last 40 years, [France] has given rights to the immigrants present on the national territory to decide its immigration policy”[3] that it is no longer the French people but the immigrants “who decide whom to bring [in France]: their son, their father, their daughter, their cousin…”[4] Moreover, when listening to these politicians, abolishing the family reunification procedure seemed absolutely feasible. In fact, Marine Le Pen pledged to put in place a national referendum to modify the Constitution to “include provisions on the status of foreigners and nationality” and “to give national law precedence over international law.”[5] In the light of these observations, this article attempts to answer the question of whether it is legally possible to end the right to family reunification, as claimed by the far-right candidates.

First of all, family reunification is a procedure that allows a foreigner holding a French residence permit to request to be joined by his or her spouse and minor children, when certain conditions – in particular with regards to income, housing, and length of stay of the applicant – are met.[6] When accepted, the applicant’s family members are granted a temporary ‘private and family life’ residence permit which in parallel confers them the right to work in France.[7] The family of a refugee, a beneficiary of subsidiary protection, or a stateless person is however not required to go through the procedure: they shall be issued a residence permit directly on the grounds of their status.[8]

The right to family reunification has been officially recognized in France since the decree of April 29, 1976 “on the conditions of entry and residence in France of members of the families of foreigners authorized to reside in France.” Regulated by circulars before then, the issuance of the decree has not changed much the existing procedure. However, in case of unjustified refusal, the applicants could henceforth contest the decision now that the rules were clearly stated.[9] However, the decree was suspended no longer than one year after, by the decree of November 10, 1977. The 1970s oil crisis had made unemployment the number one concern of French people. Facing such a situation, the government decided to suspend the right to family reunification for three years, except for family members who do not intend to work in France.

In the wake of such a decision, the GISTI (the NPO for the defense and legal assistance of foreigners in France) and two major French trade unions, CFDT (French Democratic Confederation of Labor) and CGT (General Confederation of Labor) have challenged the decree of November 10, 1977 to the Council of State, who on December 8, 1978 decided that “the contested decree is illegal, and must, consequently, be annulled.”[10] In fact, the latter judged that “it follows from the general principles of law and, in particular, from the Preamble of the Constitution of October 27, 1946, to which the Constitution of October 4, 1958 refers, that foreigners residing legally in France have, like nationals, the right to lead a normal family life.”[11] This judgment of December 8, 1978 of the Council of State has established the right to lead a normal family life including for foreigners, a general principle of French law.

In 1993, the right to family reunification was recognized as a constitutional principle with the decision of August 13, 1993 of the Constitutional Council with regards to the Act on the control of immigration and conditions of entry, reception and residence for aliens in France. In this decision, the Council states that “while the legislature is entitled to enact specific provisions applying to aliens, it behooves it to respect the fundamental rights and freedoms secured by the Constitution to all persons residing in the territory of the Republic.”[12] The Council concludes that, as a result of the tenth paragraph of the Preamble to the 1946 Constitution which affirms “the Nation shall provide the individual and the family with the conditions necessary to their development”[13], “aliens who have resided ordinarily and legally in France have the right to lead a normal family life in the same way as French nationals; this right specifically allows these aliens to send for their spouses and children who are minors on condition of restrictions relating to preserving public order and protecting public health which are constitutional objectives.”[14]

Lastly, the right to family reunification was added to the protection of European institutions in the early 2000’s through the European Council Directive 2003/86/EC. While setting the minimal rules with the aim of harmonizing member states’ legislation to provide equal treatment across the European Union (EU), the Directive stipulates that member states of the EU must authorize family reunification if common conditions are met, and refuse only in case of “a threat to public policy or public security”[15]. The Council bases this right on “the obligation to protect the family and respect family life enshrined in many instruments of international law […] [and] in particular in Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms and in the Charter of Fundamental Rights of the European Union.”[16]

In spite of the solidity with which the right to family reunification is legally established in France and throughout the EU, Marine Le Pen remained assertive throughout her presidential campaign that it would be legally feasible to take it down if she were elected. As mentioned earlier in the article, she promised to revise the French constitution to modify the rules related to the acquisition of French nationality, introduce the concept of “national priority for employment and housing”[17], and repeal the right to family reunification.

However, the normal process of modifying the constitution, detailed in article 89 of the constitution, requires a high political support in the Parliament, which Marine Le Pen, even once elected President, would have been unlikely to gain. Indeed, once the modification is proposed by the president or any MP, both chambers of the Parliament – the National Assembly and the Senate – must agree on the text identically, with a simple majority vote. Both chambers therefore have the right to veto the project. Then,  for its definitive validation, it must either be approved by the three-fifths of the Congress – both chambers of the Parliament voting together –, or through a referendum.

This complex process, the only one which is fully legal to make any modification to the constitution, is not the one Le Pen announced she would use, knowing she would probably never have been able to get through it. Instead, the solution she proposed was a controversial use of article 11 of the constitution that is meant to propose for referendum “any bill concerning the organization of public authorities, reforms relative to the nation’s economic, social or environmental policy, and to the public services related to it, or aiming at authorizing the ratification of a treaty that, without being in opposition to the constitution, would have incidence on the functioning of institutions”[18]. As specified, this article is not meant for an important reform of principles of law, and therefore any modification of the constitution based on its use would be contested as illegal. Moreover, the modification of the constitution would not tackle the issue of accordance with the European Law and Council’s directive 2003/86/EC.

Eventually, French citizens have decided to re-elect the incumbent President Emmanuel Macron. In spite of the soundness of the legal framework that guarantees the fundamental rights of the constitution, it seems that they have preferred to rule out any probabilities the far-right could infringe on these rights. Indeed, when one country’s executive power pays little attention to the legality of their actions, and tends to overlook the rule of law, who can effectively set them right?

[1] Halimi, Serge. “Le triomphe du cynisme.” (The triumph of cynicism) Le Monde Diplomatique, May 2022, https://www.monde-diplomatique.fr/2022/05/HALIMI/64626

[2] “Macron veut qu’il n’y ait plus ‘aucune raison de voter pour les extrêmes’ et ‘rester audacieux’.” (Macron wants there to be ‘no more reason to vote for the extremists’ and ‘to remain bold’)  AFP, May 7, 2017. https://www.publicsenat.fr/article/politique/macron-veut-qu-il-n-y-ait-plus-aucune-raison-de-voter-pour-les-extremes-et-rester

[3] “Eric Zemmour veut arrêter ‘le regroupement familial’.” La France dans les yeux, BFMTV, Feb. 09, 2022. https://www.bfmtv.com/replay-emissions/la-france-dans-les-yeux-episode-2/eric-zemmour-veut-arreter-le-regroupement-familial_VN-202202090574.html

[4] Idem

[5] Kristanadjaja, Gurvan. “L’immigration selon Marine Le Pen: priorité nationale partout, humanité nulle part.” (Immigration according to Marine Le Pen: national priority everywhere, humanity nowhere) Libération, Apr. 19, 2022, https://www.liberation.fr/societe/limmigration-selon-marine-le-pen-priorite-nationale-partout-humanite-nulle-part-20220419_MANY2UO53ZB2DF7GGZUWH7G2CM/

[6]“Family reunification – General case.” Service-Public.fr Official site of the French administration, Jan. 01, 2022,  https://www.service-public.fr/particuliers/vosdroits/F35147/4_4?idFicheParent=F11166#4_4

[7]Senate. “Bill on immigration and integration.” Senate – a service to the citizens, https://www.senat.fr/rap/l05-371-1/l05-371-161.html#fn93

[8] Directorate for Legal and Administrative Information. “Does family reunification concern all foreign families?” Service Public, French Administration, Aug. 16, 2019, https://www.service-public.fr/particuliers/vosdroits/F11168?lang=en

N.b: under the conditions that the family ties date from before the asylum application, and are declared at the time of the first application.

[9] Cohen, Muriel. “Regroupement familial: l’exception algérienne (1962 – 1976).” (Family reunification: the Algerian exception (1962 – 1976) Plein Droit, no. 95, April 2012, pp. 19-22. Cairn.info, https://www.cairn.info/revue-plein-droit-2012-4-page-19.htm#:~:text=Le%20regroupement%20familial%20est%20reconnu,autoris%C3%A9s%20%C3%A0%20r%C3%A9sider%20en%20France%20%C2%BB

[10] The Council of State. “Base de jurisprudence.” Dec. 8 1978, https://www.conseil-etat.fr/fr/arianeweb/CE/decision/1978-12-08/10097

[11] Idem

[12] The Constitutional Council. “Decision no. 93-325 of 13 August 1993.” Aug. 13 1993, https://www.conseil-constitutionnel.fr/en/decision/1993/93325DC.htm

[13] The Constitutional Council. “Preamble to the Constitution of October 27th 1946.” https://www.conseil-constitutionnel.fr/en/preamble-to-the-constitution-of-october-27th-1946

[14]  The Constitutional Council. “Decision no. 93-325 of 13 August 1993.” Aug. 13 1993, https://www.conseil-constitutionnel.fr/en/decision/1993/93325DC.htm

[15] European Council. “Council Directive 2003/86/EC of 22 September 2003 on the right to family reunification.” EUR-Lex, Oct. 10, 2003. https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32003L0086&qid=1652973991570

[16] Idem

[17] Le Pen, Marine. “Contrôler l’immigration.” (Control immigration), M la France, 2022, https://mlafrance.fr/pdfs/projet-controle-de-limmigration.pdf#page=21

[18] “Constitution du 4 octobre 1958” (Constitution of October 4, 1958), LégiFrance, https://www.legifrance.gouv.fr/loda/article_lc/LEGIARTI000019241004/

 

Cover Photo: Souvant, Guillaume. « La candidate du Rassemblement National Marine Le Pen a récolté 23,15% des suffrages. » AFP, https://www.nouvelobs.com/election-presidentielle-2022/20220410.OBS56930/presidentielle-les-10-mesures-phares-du-programme-de-marine-le-pen-qualifiee-pour-le-second-tour.html