Decision

Decision no. 2023-863 DC of 25 January 2024

Decision No 2023-863 DC of 25 January 2024 Act to control immigration and improve integration

On 26 December 2023, the Constitutional Council, in the conditions provided for in the second paragraph of Article 61 of the Constitution, received a referral to review the act to control immigration and improve integration, under number 2023-863 DC, from the President of the Republic.
It also received a referral, on the same date, from the President of the National Assembly.
On the same date, a referral was also made by Mathilde PANOT, Nadège ABOMANGOLI, Laurent ALEXANDRE, Gabriel AMARD, Ségolène AMIOT, Farida AMRANI, Rodrigo ARENAS, Clémentine AUTAIN, Ugo BERNALICIS, Christophe BEX, Carlos Martens BILONGO, Manuel BOMPARD, Idir BOUMERTIT, Louis BOYARD, Aymeric CARON, Sylvain CARRIÈRE, Florian CHAUCHE, Sophia CHIKIROU, Hadrien CLOUET, Éric COQUEREL, Alexis CORBIÈRE, Jean-François COULOMME, Catherine COUTURIER, Hendrik DAVI, Sébastien DELOGU, Alma DUFOUR, Karen ERODI, Martine ÉTIENNE, Emmanuel FERNANDES, Sylvie FERRER, Caroline FIAT, Perceval GAILLARD, Raquel GARRIDO, Clémence GUETTÉ, David GUIRAUD, Mathilde HIGNET, Rachel KEKE, Andy KERBRAT, Bastien LACHAUD, Maxime LAISNEY, Arnaud LE GALL, Antoine LÉAUMENT, Élise LEBOUCHER, Charlotte LEDUC, Jérôme LEGAVRE, Sarah LEGRAIN, Murielle LEPVRAUD, Élisa MARTIN, Pascale MARTIN, William MARTINET, Frédéric MATHIEU, Damien MAUDET, Marianne MAXIMI, Manon MEUNIER, Jean-Philippe NILOR, Danièle OBONO, Nathalie OZIOL, René PILATO, François PIQUEMAL, Thomas PORTES, Loïc PRUD’HOMME, Adrien QUATENNENS, Jean-Hugues RATENON, Sébastien ROME, François RUFFIN, Aurélien SAINTOUL, Michel SALA, Danielle SIMONNET, Ersilia SOUDAIS, Anne STAMBACH-TERRENOIR, Andrée TAURINYA, Matthias TAVEL, Aurélie TROUVÉ, Paul VANNIER, Léo WALTER, Boris VALLAUD, Joël AVIRAGNET, Christian BAPTISTE, Marie-Noëlle BATTISTEL, Mickaël BOULOUX, Philippe BRUN, Elie CALIFER, Alain DAVID, Arthur DELAPORTE, Stéphane DELAUTRETTE, Inaki ECHANIZ, Olivier FAURE, Guillaume GAROT, Jérôme GUEDJ, Johnny HAJJAR, Chantal JOURDAN, Marietta KARAMANLI, Fatiha KELOUA HACHI, Gérard LESEUL, Philippe NAILLET, Bertrand PETIT, Anna PIC, Christine PIRÈS BEAUNE, Dominique POTIER, Valérie RABAULT, Claudia ROUAUX, Isabelle SANTIAGO, Hervé SAULIGNAC, Mélanie THOMIN, Cécile UNTERMAIER, Roger VICOT, André CHASSAIGNE, Soumya BOUROUAHA, Jean-Victor CASTOR, Steve CHAILLOUX, Pierre DHARRÉVILLE, Elsa FAUCILLON, Sébastien JUMEL, Émeline K BIDI, Tematai LE GAYIC, Karine LEBON, Jean-Paul LECOQ, Frédéric MAILLOT, Yannick MONNET, Marcellin NADEAU, Stéphane PEU, Mereana REID ARBELOT, Davy RIMANE, Fabien ROUSSEL, Nicolas SANSU, Jean-Marc TELLIER, Jiovanny WILLIAM, Hubert WULFRANC, Cyrielle CHATELAIN, Christine ARRIGHI, Julien BAYOU, Lisa BELLUCO, Karim BEN CHEIKH, Charles FOURNIER, Marie-Charlotte GARIN, Jérémie IORDANOFF, Hubert JULIEN-LAFERRIÈRE, Julie LAERNOES, Benjamin LUCAS, Francesca PASQUINI, Sébastien PEYTAVIE, Marie POCHON, Jean-Claude RAUX, Sandra REGOL, Sandrine ROUSSEAU, Eva SAS, Sabrina SEBAIHI, Aurélien TACHÉ, Sophie TAILLÉ-POLIAN and Nicolas THIERRY, Members of Parliament.
Lastly it received a referral on 27 December 2023 by Patrick KANNER, Viviane ARTIGALAS, Audrey BÉLIM, Florence BLATRIX CONTAT, Nicole BONNEFOY, Denis BOUAD, Hussein BOURGI, Isabelle BRIQUET, Colombe BROSSEL, Marion CANALÈS, Rémi CARDON, Marie-Arlette CARLOTTI, Christophe CHAILLOU, Yan CHANTREL, Catherine CONCONNE, Hélène CONWAY-MOURET, Thierry COZIC, Karine DANIEL, Jérôme DARRAS, Gilbert-Luc DEVINAZ, Jérôme DURAIN, Vincent ÉBLÉ, Frédérique ESPAGNAC, Sébastien FAGNEN, Rémi FÉRAUD, Corinne FÉRET, Jean-Luc FICHET, Hervé GILLÉ, Laurence HARRIBEY, Olivier JACQUIN, Éric JEANSANNETAS, Patrice JOLY, Bernard JOMIER, Gisèle JOURDA, Éric KERROUCHE, Marie-Pierre de LA GONTRIE, Annie LE HOUEROU, Audrey LINKENHELD, Jean-Jacques LOZACH, Monique LUBIN, Victorin LUREL, Didier MARIE, Serge MÉRILLOU, Jean-Jacques MICHAU, Marie-Pierre MONIER, Franck MONTAUGÉ, Corinne NARASSIGUIN, Alexandre OUIZILLE, Sébastien PLA, Émilienne POUMIROL, Claude RAYNAL, Christian REDON-SARRAZY, Sylvie ROBERT, Pierre-Alain ROIRON, David ROS, Laurence ROSSIGNOL, Lucien STANZIONE, Rachid TEMAL, Jean-Claude TISSOT, Simon UZENAT, Mickaël VALLET, Jean-Marc VAYSSOUZE-FAURE, Michaël WEBER, Adel ZIANE, Cécile CUKIERMAN, Cathy APOURCEAU-POLY, Jérémy BACCHI, Pierre BARROS, Éric BOCQUET, Ian BROSSAT, Céline BRULIN, Evelyne CORBIÈRE NAMINZO, Jean-Pierre CORBISEZ, Fabien GAY, Michelle GRÉAUME, Gérard LAHELLEC, Marianne MARGATÉ, Pierre OUZOULIAS, Pascal SAVOLDELLI, Silvana SILVANI, Marie-Claude VARAILLAS, Robert Wienie XOWIE, Guillaume GONTARD, Guy BENARROCHE, Grégory BLANC, Ronan DANTEC, Thomas DOSSUS, Jacques FERNIQUE, Antoinette GUHL, Yannick JADOT, Monique de MARCO, Akli MELLOULI, Mathilde OLLIVIER, Raymonde PONCET MONGE, Daniel SALMON, Ghislaine SENÉE, Anne SOUYRIS and Mélanie VOGEL, Senators.
Having regard to the following texts:
- the Constitution;
- Ordinance No 58-1067 of 7 November 1958, constituting an institutional act on the Constitutional Council;

  • the Convention implementing the Schengen Agreement of 14 June 1985, signed on 19 June 1990;
  • Regulation (EU) 2016/399 of the European Parliament and of the Council of 9 March 2016 on a Union Code on the rules governing the movement of persons across borders (Schengen Borders Code);
  • Directive 2013/33/EU of the European Parliament and of the Council of 26 June 2013 laying down standards for the reception of applicants for international protection;
    - the Social Action and Family Code;
  • the Civil Code;
    - the Construction and Residential Housing Code;
    - the Education Code;
    - the Code for Entry and Residence of Foreigners and Right of Asylum (CESEDA);
    - the Code of Administrative Justice;
  • the Monetary and Financial Code;
    - the Code of Internal Security;
    - the Social Security Code;
    - the Transportation Code;
    - Act No 2021‑1031 of 4 August 2021 concerning planning related to collective development and the fight against global inequalities;
    - the Regulation of 11 March 2022 on the procedure applicable before the Constitutional Council with respect to rulings as to constitutionality;
    Having regard to the following documents:
  • the observations submitted by the Chairman of the Senate law commission, Muriel JOURDA and Philippe BONNECARRÈRE, Senators, registered on 8 January 2024;
  • the observations of the Government, registered on 18 January 2024;
  • the observations submitted by Olivier MARLEIX and several Members of Parliament other than the authors of the third referral, registered on 19 January 2024;
  • After having heard the Members of Parliament representing the authors of the third referral;
    And after having heard the rapporteurs;
    THE CONSTITUTIONAL COUNCIL DECIDED THAT:
  1. The President of the Republic, the President of the National Assembly, the applicant Members of Parliament and applicant Senators refer the act to control immigration and improve integration.
  2. The President of the Republic does not raise any particular objection to the law referred for review. The President of the National Assembly requests that the Constitutional Council rule on the place of its Articles 11 and 19, and on the constitutionality of its Articles 1, 3, and 19. The applicant Members of Parliament and Senators challenge the place of its Articles 3, 4, 5, 6, 17, 19, 24, 25, 26, and 39. They also challenge the constitutionality of its Articles 1, 3, 4, and 19 as well as certain provisions of its Articles 5, 35, 37, and 70. The applicant Members of Parliament challenge the place of its Articles 2, 8, 9, 10, 11, 12, 13, 15, 16, 18, 32, 33, 44, 45, 47, 48, 50, 51, 58, 63, 67, 68, and 69. They also challenge the constitutionality of its Articles 12, 14, 15, 32, 38, 42, and 58, as well as certain provisions of its Articles 9, 46, 65, 66, 67, 72, 76, 77, and 81. The applicant Senators also challenge the place of its Article 81. They also challenge the constitutionality of Articles 6 and 11.
    - Concerning Article 1:
  3. Article 1 of the law referred for review rewrites Article L. 123-1 of the Code for Entry and Residence of Foreigners and the Right of Asylum (CESEDA) in order to provide for an annual debate on immigration policy to be held in Parliament and to supplement the information presented in the annual report on this subject submitted by the Government to Parliament. It also inserts a new Article L. 123-2 into the same code, providing for Parliament to set the number of foreign nationals authorised to settle in France.
  4. The President of the National Assembly is asking the Constitutional Council to examine the compliance of this article with the right to have a normal family life, the right to personal privacy, the principle of equality before the law, and the constitutional requirements governing the setting of the agenda of the Houses. The applicant Members of Parliament and Senators criticised these provisions for violating these latter requirements.
  5. The Senators also state that, by providing for non-binding immigration targets, these provisions violate the requirement that the law be normative. In the alternative, they argue that, if the provisions were to have a normative effect, they would violate the principle of equality before the law on the grounds that, by making the number of foreign nationals admitted to France subject to quotas, they would subject foreign nationals to an unjustified difference in treatment depending on whether their application for residence was submitted before or after the quotas had been reached.
  6. The disputed provisions require that Parliament hold an annual debate on the multi-annual guidelines for immigration and integration policy, and that the Government submit a report to Parliament. They also stipulate that for the next three years Parliament shall determine the number of foreign nationals admitted to settle permanently in France, for each category of residence with the exception of asylum, taking into account the national interest, and they specify that the objective in terms of family immigration shall be established in compliance with the principles attached to this right.
  7. It does not follow from Article 48 of the Constitution or from any other constitutional requirement that the legislature may require Parliament to hold a debate in public session or to set certain numerical targets for immigration. Such an obligation could impede the prerogatives that the Government or each of the Houses, as the case may be, has/have under the Constitution to set the agenda.
  8. Consequently, without it being necessary to examine the other objections, the second paragraph of 1° and 2° of Article 1 of the law referred for review must be declared unconstitutional.
  9. The remainder of Article 1 which merely provides for the submission of a report intended to inform Parliament, does not violate the aforementioned constitutional requirements. These provisions do not violate any other constitutional requirement. They conform to the Constitution.
  • Concerning the place of Article 2:
  1. Article 2 amends Article L. 333-3 of the Code for Entry and Residence of Foreigners and Right of Asylum (CESEDA) to specify the conditions for the re-routing of foreign nationals in certain circumstances.
  2. The applicant Members of Parliament contend that Article 2 has no place in the law referred for review, on the grounds that it was introduced in the first reading according to a procedure contrary to Article 45 of the Constitution.
  3. According to the last sentence of the first paragraph of Article 45 of the Constitution: “Without prejudice to the application of articles 40 and 41, all amendments which have a link, even an indirect one, with the text that was tabled or transmitted, shall be admissible on first reading.” It is the responsibility of the Constitutional Council to declare the provisions that are introduced in violation of this rule of procedure as unconstitutional. According to established case law, it ensures in this context that there is a link between the purpose of the amendment and that of at least one of the provisions of the text submitted to the bureau of the first House to which it is referred. It only declares provisions contrary to Article 45 of the Constitution if such a link, even an indirect one, cannot be identified. It assesses the existence of this link after describing the initial text and then, for each of the provisions that are declared unconstitutional, the reasons why it must be considered as lacking even an indirect link with it. In this case, the Constitutional Council does not prejudge the compliance of the content of these provisions with other constitutional requirements.
  4. The law referred for review, which contains eighty-six articles divided into eight titles, originated in the bill submitted on 1 February 2023 to the bureau of the Senate, the first House to which the bill was referred. This bill had twenty-seven articles divided into six titles.
  5. Title I included provisions aimed at making the issue of certain residence permits conditional on mastery of a minimum level of French, organising employers’ contributions to French language training for foreign workers who speak other languages, creating a temporary residence permit for foreign nationals working in a short-staffed occupation, modifying the procedures for access to the labour market for certain asylum seekers, making the creation of a sole proprietorship conditional on the entrepreneur’s legal residence status, reforming certain provisions relating to the residence permit bearing the “talent” designation issued for professional reasons, creating a residence permit for certain healthcare professionals and decentralising responsibility for issuing authorisations to practise in France for healthcare practitioners with qualifications from outside the European Union, and introducing an administrative fine to penalise employers of foreign nationals who do not hold a permit authorising them to work.
  6. Title II included provisions aimed at reforming the conditions under which certain foreign nationals may be deported or ordered to leave French territory, authorising the use of coercion to take fingerprints and photographs of foreign nationals residing in France illegally, prohibiting the placement in an administrative detention centre of any foreign national accompanied by a minor under the age of 16 and introducing new criteria for the issue or withdrawal of certain residence documents, relating to the foreign national’s commitment to respect the principles of the Republic, the establishment of his or her actual and habitual residence in France or the absence of a serious threat to public order.
  7. Title III of the bill included provisions aimed at stepping up criminal penalties for organised gangs that facilitate illegal entry into France, increasing the penalties incurred by people who offer unfit accommodation to vulnerable people, and bringing national law into line with European provisions on the European travel information and authorisation system, allowing border police to inspect private vehicles, and introducing a new mandatory ground for refusing to issue a visa and entry to France if the foreign national has not complied with an obligation to leave French territory that was imposed on him or her less than five years ago.
  8. Title IV contained provisions relating to the creation of territorial asylum centres (France Asile) and changes to the organisation of the National Court of Asylum.
  9. Title V aimed to reform the rules governing litigation involving foreign nationals by reducing the number of procedures applicable before the administrative courts, amending the rules of procedure before the judge for liberties and detention and authorising an extension of the time limit for the judge to rule in the event of a large number of foreign nationals being held simultaneously in a waiting area, and by providing for hearings to be held in a room set aside for this purpose close to the waiting area or place of detention.
  10. Title VI empowered the Government to adopt measures by ordinance to implement the provisions of this Act in certain overseas territories and set out the conditions for its entry into force.
  11. Article 2 of the law referred for review stipulates that if, following a refusal of entry, the air or sea transport company finds itself unable to re-route the foreign national because of his or her recalcitrant behaviour, only the authorities responsible for controlling people at the border are competent to compel it to do so.
  12. Introduced at first reading, these provisions cannot be considered to be unrelated, even indirectly, to the provisions of Articles 9 and 10 of the initial bill reforming the conditions under which certain foreign nationals may be deported or be ordered to leave French territory. The objection alleging the violation of the first paragraph of Article 45 of the Constitution must therefore be dismissed.
  13. As a result, Article 2 was adopted according to a procedure that conforms to the Constitution.
  • Concerning Articles 3, 4, and 5:
  1. Articles 3, 4 and 5 relate to certain conditions for entitlement to family reunification.
  2. The applicant Members of Parliament and Senators contend that Articles 3 to 5 have no place in the law referred for review, on the grounds that they were introduced in the first reading according to a procedure contrary to Article 45 of the Constitution.
  3. In substance, the President of the National Assembly is asking the Constitutional Council to examine whether Article 3 complies with the right to have a normal family life, the right to personal privacy, and the principle of equality before the law. For their part, the applicant Members of Parliament and Senators criticised this article for violating the right to have a normal family life. The applicant Members of Parliament also stated that it violated the principle of equality before the law.
  4. The applicant Members of Parliament and Senators criticise Article 4 for violating the right to have a normal family life. The applicant Members of Parliament also consider that it is contrary to the principle of equality before the law.
  5. The applicant Members of Parliament and Senators also criticise certain provisions of Article 5 for violating the right to have a normal family life. The applicant Members of Parliament also consider that it violates the right to personal privacy.
  6. Article 3 amends Articles L. 434-2, L. 434-7 and L. 434-8 of the Code for Entry and Residence of Foreigners and Right of Asylum (CESEDA) in order to reform certain conditions for entitlement to family reunification.
     
  7. Article 4 inserts a new Article L. 434-7-1 into the same code to make the issue of a residence permit in France for family reunification purposes conditional on the foreign national first demonstrating a certain level of knowledge of the French language.
  8. Article 5 inserts two new Articles L. 434-10-1 and L. 434-11-1 into the same code, providing that, in the context of an application for family reunification, the mayor of the municipality in which the foreign national resides or the mayor of the municipality in which the foreign national intends to settle shall verify the foreign national’s housing conditions and resources within a certain period, and that if no opinion is given within this period, the opinion shall be deemed to be unfavourable, if there is a suspicion that the application is fraudulent or that false statements have been made, the competent authority may ask the mayor to carry out these checks.
  9. Introduced at first reading, the purpose of these provisions is to amend certain conditions that allow legally resident foreign nationals to be joined by members of their family under the family reunification scheme. They are therefore not related, even indirectly, to those in Article 1 of the initial bill making the issue of multi-annual residence permits authorising foreign nationals to reside legally in France subject to a minimum level of proficiency in French, in Article 3 relating to the temporary residence permit issued to foreign nationals working in a short-staffed occupation, in Article 6 relating to the residence permit bearing the “talent” designation issued for professional reasons, or in Article 7 creating a residence permit for certain healthcare professionals. They also are not related, even indirectly, with any of the other provisions that were in the bill submitted to the bureau of the Senate.
  10. Consequently, without having to rule on the other objections and without the Constitutional Council prejudging the compliance of the content of these provisions with the other constitutional requirements, it is determined that, as they were adopted using a procedure that is unconstitutional, they are therefore unconstitutional.
  • Concerning Articles 6 and 8:
  1. Articles 6 and 8 relate to certain conditions for issuing a residence permit for family reasons.
  2. The applicant Members of Parliament and Senators contend that Article 6 has no place in the law referred for review, on the grounds that it was introduced in the first reading according to a procedure contrary to Article 45 of the Constitution. The same applies, according to the applicant Members of Parliament, to Article 8.
  3. In substance, the applicant Senators criticise that Article 6 violates the right to have a normal family life.
  4. Article 6 rounds out Article L. 423-1 of the Code for Entry and Residence of Foreigners and Right of Asylum (CESEDA) in order to set out new conditions to be met by foreign nationals married to a French national in order to be issued with a temporary residence permit bearing the designation “vie privée et familiale” (private and family life) for a period of one year.
  5. Article 8 amends Articles L. 423-6, L. 423-10 and L. 423-16 of the same code in order to extend the duration of specific conditions to be met by foreign nationals wishing to obtain certain residence permits for family reasons.
  6. Introduced at first reading, the purpose of these provisions is to amend certain conditions relating to the relationship that a foreign national must have with a French national or a foreign national holding a residence permit in order to be issued with a residence permit for family reasons. They are therefore not related, even indirectly, to the aforementioned Articles 1, 3, 6, and 7 of the initial bill. They also are not related, even indirectly, with any of the other provisions that are in the bill submitted to the bureau of the Senate.
  7. Consequently, without having to rule on the other objection and without the Constitutional Council prejudging the compliance of the content of these provisions with the other constitutional requirements, it is determined that, as they were adopted using a procedure that is unconstitutional, they are therefore unconstitutional.
  • Concerning Articles 9 and 10:
  1. Articles 9 and 10 relate to certain conditions for issuing a residence permit on the grounds of a foreign national’s state of health.
  2. The applicant Members of Parliament contend that these articles have no place in the law referred for review, on the grounds that they were introduced in the first reading according to a procedure contrary to Article 45 of the Constitution.
  3. In substance, they claim that certain provisions of Article 9 infringe the right to protection of health enshrined in the eleventh paragraph of the Preamble of the Constitution of 1946.
  4. Article 9 amends Article L. 425-9 of the Code for Entry and Residence of Foreigners and Right of Asylum (CESEDA) to provide that foreign nationals habitually resident in France whose state of health requires medical treatment, the lack of which could have exceptionally serious consequences for them, may only be issued with a temporary residence permit bearing the designation “vie privée et familiale” (private and family life) if appropriate treatment is not available in their country of origin.
  5. Article 10 amends this same Article L. 425-9 to specify the criteria used to assess these exceptionally serious consequences.
  6. Introduced at first reading, the purpose of these provisions is to amend certain specific conditions that foreign nationals must meet in order to be issued with a residence permit on humanitarian grounds, based on their state of health. They are therefore not related, even indirectly, to the aforementioned Articles 1, 3, 6, and 7 of the initial bill. They also are not related, even indirectly, with any of the other provisions that were in the bill submitted to the bureau of the Senate.
  7. Consequently, without having to rule on the other objection and without the Constitutional Council prejudging the compliance of the content of these provisions with the other constitutional requirements, it is determined that, as they were adopted using a procedure that is unconstitutional, they are therefore unconstitutional.
  • Concerning Articles 11, 12, and 13:
  1. Articles 11, 12, and 13 concern, on the one hand, certain conditions for issuing a residence permit for study purposes and, on the other hand, registration fees for foreign students at certain higher education establishments.
  2. The President of the National Assembly has asked the Constitutional Council to examine the place of Article 11 in the law referred for review. The applicant Members of Parliament contend that this article, as well as Articles 12 and 13, have no place in the law referred for review, on the grounds that they were introduced in the first reading according to a procedure contrary to Article 45 of the Constitution.
  3. In substance, the applicant Senators criticise Article 11 for violating the principle of equality before the law.
  4. The applicant Members of Parliament consider that Article 12 violates this same principle as well as freedom of education.
  5. Article 11 introduces a new Article L. 412-11 into the Code for Entry and Residence of Foreigners and Right of Asylum (CESEDA) in order to make the first issue of a temporary residence permit bearing the designation “étudiant” (student) subject to the deposit of a guarantee by the foreign national.
  6. Article 12 amends Articles L. 411-4 and L. 432-9 of the same code to set out the procedures for proving the serious and genuine nature of the studies undertaken by a foreign national holding a residence permit bearing the designation “étudiant” (student) and the consequences of failing to do so.
  7. Article 13 amends Article L. 719-4 of the Education Code to provide for an increase in the tuition fees paid to public higher education establishments of a scientific, cultural or professional nature by foreign students as part of an international study programme.
  8. Introduced at first reading, the purpose of Articles 11 and 12 is to amend certain specific conditions that foreign nationals will now have to meet in order to obtain a residence permit for educational purposes. Article 13 relates to registration fees charged to international students by public higher education institutions. These provisions are not related, even indirectly, with the aforementioned provisions of Articles 1, 3, 6, and 7 of the initial bill. They also are not related, even indirectly, with any of the other provisions that are in the bill submitted to the bureau of the Senate.
  9. Consequently, without having to rule on the other objections and without the Constitutional Council prejudging the compliance of the content of these provisions with the other constitutional requirements, it is determined that, as they were adopted using a procedure that is unconstitutional, they are therefore unconstitutional.
    - Concerning Article 14:
  10. Article 14 provides, on an experimental basis, that when the administrative authority is considering refusing to issue or renew a residence permit applied for by a foreign national, it will examine all the grounds for issuing certain other residence permits. If the foreign national’s residence permit is refused, any new application submitted by the foreign national before the one-year period has expired is declared inadmissible, unless there is new evidence of fact or law presented.
  11. Firstly, the applicant Members of Parliament contend that these provisions are vitiated by a manifest error of assessment, since the planned experimental period is not accompanied by a strengthening of the prefectural services responsible for examining applications.
  12. They also criticise that these provisions violate the right to effective legal protection and defendant’s rights. In support of these objections, they argue that the inadmissibility of a new application by the foreign national would not be subject to appeal to the administrative court. Moreover, by presuming that the request is abusive or dilatory, these provisions reverse the burden of proof to the detriment of the foreign national. They also criticise the fact that it is impossible to lodge a full appeal against decisions taken to refuse a residence permit.
  13. Lastly, according to the applicant Members of Parliament, these provisions would introduce an unjustified difference in treatment between foreign nationals depending on whether or not their application for a residence permit fell within the scope of the experimental period, violating the principle of equality before the law.
  14. Firstly, while the legislature may adopt specific provisions for foreign nationals, it must respect the fundamental rights and freedoms of constitutional value recognised for all those residing in the territory of the Republic. Among these rights and freedoms are the freedom of movement, an element of individual freedom, the right to personal privacy protected by Article 2 of the Declaration of Human and Civic Rights of 1789, and the right to have a normal family life, resulting from the tenth paragraph of the Preamble to the Constitution of 27 October 1946.
  15. In application of the disputed provisions, on an experimental basis, when a foreign national applies for the issue or renewal of one of the residence permits mentioned in Chapters I to III, Sections 1 and 2 of Chapter V and Chapter VI of Title II of Book IV of the Code for Entry and Residence of Foreigners and Right of Asylum (CESEDA) and the administrative authority is considering rejecting the application, it must examine all the grounds for issuing one of these other residence permits. At the end of the examination procedure, it may issue the foreign national with a residence permit different from the one initially requested, subject to his or her agreement. If the residence permit application is refused, the administrative authority will declare any new application submitted by the foreign national before the one-year period has expired to be inadmissible.
  16. It is clear from the preparatory work that, in adopting these provisions, the legislature intended both to facilitate the admission to residence of foreign nationals whose situation may justify granting them a permit different from the one which was the subject of their initial application, and to avoid the administrative authority having to examine successive applications for residence permits from the same person.
  17. On the one hand, paragraph II of Article 14 stipulates that the applicant must forward to the administrative authority, in support of his or her application, all the supporting information necessary for the administrative authority to take a decision. Unless the aforementioned constitutional requirements are violated, these provisions must be understood as requiring the administrative authority to inform the foreign national, when submitting his or her application, that he or she must submit all the supporting information needed to assess his or her situation with regard to all the grounds likely to justify the issue of one of the aforementioned residence permits.
  18. On the other hand, in cases where the administrative authority has refused to grant the foreign national a residence permit, the latter may submit a new application before the expiry of the one-year period following this refusal if he or she can provide evidence of new factual or legal elements likely to allow a residence permit to be issued as of right. However, by excluding such an option for other residence permits, these provisions do not ensure a balanced reconciliation between the aforementioned constitutional requirements. Consequently, the words “as of right” in the last sentence of the first subparagraph of paragraph IV of Article 14 are unconstitutional.
  19. It follows from the foregoing that, subject to the reservation set out in paragraph 63, by adopting the remainder of the disputed provisions, the legislature has not disproportionately infringed the aforementioned constitutional requirements. The objections alleging the violation of these requirements must therefore be dismissed.
  20. Secondly, according to Article 16 of the Declaration of Human and Civic Rights of 1789: “Any society in which no provision is made for guaranteeing rights or for the separation of powers, has no Constitution.” This provision guarantees that the persons concerned have access to effective legal protection, and that their rights as defendants are respected.
  21. On the one hand, the disputed provisions have neither the purpose nor the effect of depriving a foreign national whose new application is inadmissible of the possibility of challenging that decision before the administrative court.
  22. On the other hand, while the abusive or dilatory nature of the new application is presumed, it follows from the very terms of the disputed provisions that the foreign national may always produce new factual or legal elements likely to allow a residence permit to be issued.
  23. Consequently, the objections alleging the violation of the right to effective legal protection and respect for defendant's rights can only be dismissed.
  24. Lastly, according to Article 37-1 of the Constitution: “Statutes and regulations may contain provisions enacted on an experimental basis for limited purposes and duration.” This provision allows Parliament to authorise experimental periods that derogate from the principle of equality before the law, for a limited purpose and duration.
  25. The objection alleging inequality of treatment between foreign nationals subject to the experimental period and those who are not, which is the necessary consequence of the implementation of the experimental period, can only be dismissed.
  26. It follows from all the foregoing that, with the exception of the words “as of right” in the last sentence of the first subparagraph of paragraph IV of Article 14 of the law referred for review, paragraphs I and III, the remainder of paragraph IV and paragraph V of this same article and, subject to the reservation set out in paragraph 63, subparagraph II thereof, which do not disregard any other constitutional requirement, conform to the Constitution.
    - Concerning Article 15:
  27. Article 15 rewrites Article L. 1113-1 of the Transportation Code, in particular with a view to excluding foreign nationals residing in France illegally from the benefit of the fare reduction granted for certain transport tickets to means-tested persons.
  28. The applicant Members of Parliament contend that this article has no place in the law referred for review, on the grounds that it was introduced in the first reading according to a procedure contrary to Article 45 of the Constitution.
  29. In substance, they also criticised these provisions for violating the right to protection of health and the principle of equality before the law.
  30. Article 15 provides that people who are not legally resident in France cannot benefit from the fare reduction applied, on a means-tested basis, to transport tickets in the area covered by the mobility organising authorities and, in the Île-de-France region, in the area covered by Île-de-France Mobilités.
  31. Introduced at first reading, the purpose of these provisions is to amend the rules governing the pricing of certain transport tickets, and they are not related, even indirectly, with any of the provisions contained in the bill submitted to the bureau of the Senate.
  32. Consequently, without having to rule on the other objections and without the Constitutional Council prejudging the compliance of the content of these provisions with the other constitutional requirements, it is determined that, as they were adopted using a procedure that is unconstitutional, they are therefore unconstitutional.
  • Concerning the place of Article 16:
  1. Article 16 inserts a new Article L. 312-4-1 into the Code for Entry and Residence of Foreigners and Right of Asylum (CESEDA), which stipulates that a long-stay visa is automatically issued to British nationals who own a second home in France.
  2. The applicant Members of Parliament contend that Article 16 has no place in the law referred for review, on the grounds that it was introduced in the first reading according to a procedure contrary to Article 45 of the Constitution.
  3. Introduced at first reading, the purpose of these provisions is to modify the specific conditions of residence in France for certain British nationals. These provisions are not related, even indirectly, with the aforementioned provisions of Articles 1, 3, 6, and 7 of the initial bill. They also are not related, even indirectly, with any of the other provisions that were in the bill submitted to the bureau of the Senate.
  4. Consequently, without the Constitutional Council prejudging if the content of these provisions conform to other constitutional requirements, it is determined that, as they were adopted according to a procedure contrary to the Constitution, they are therefore unconstitutional.
  • Concerning the place of Article 17:
  1. Article 17 inserts a new Article L. 822-1 A into the Code for Entry and Residence of Foreigners and Right of Asylum (CESEDA) in order to provide that the illegal residence of a foreign national of legal age is punishable by a criminal fine and an additional penalty in the form of a three-year ban from admission to the French territory.
  2. The applicant Members of Parliament and Senators contend that this article has no place in the law referred for review, on the grounds that it was introduced in the first reading according to a procedure contrary to Article 45 of the Constitution.
  3. Introduced at first reading, the purpose of these provisions is to make it an offence for a foreign national to reside illegally in French territory. They are therefore not related, even indirectly, with the aforementioned provisions of Article 9 of the initial bill, those of Article 11, which authorised the use of coercion to take fingerprints and photographs of a foreign national residing in France illegally, and those of Article 14, which aimed to increase the penalties for the offence of facilitating illegal entry, movement or residence when committed by an organised gang and in circumstances exposing foreign nationals to certain risks. They also are not related, even indirectly, with any of the other provisions that were in the bill submitted to the bureau of the Senate.
  4. Consequently, without the Constitutional Council prejudging if the content of these provisions conform to other constitutional requirements, it should be noted that, since they were adopted according to a procedure contrary to the Constitution, they are therefore unconstitutional.
  • Concerning the place of Article 18:
  1. Article 18 amends Article L. 823-11 of the Code for Entry and Residence of Foreigners and Right of Asylum (CESEDA) to increase the fine for contracting a marriage or recognising a child for the sole purpose of obtaining a residence permit or protection against deportation, or acquiring French nationality.
  2. The applicant Members of Parliament contend that Article 18 has no place in the law referred for review, on the grounds that it was introduced in the first reading according to a procedure contrary to Article 45 of the Constitution.
  3. Introduced at first reading, the purpose of these provisions is to amend the penalty for certain fraudulent behaviour aimed at obtaining a residence permit or acquiring French nationality. They are therefore not related, even indirectly, to the aforementioned provisions set out in Article 14 of the law. They also are not related, even indirectly, with any of the other provisions that were in the bill submitted to the bureau of the Senate.
  4. Consequently, without the Constitutional Council prejudging if the content of these provisions conform to other constitutional requirements, it should be noted that, since they were adopted according to a procedure contrary to the Constitution, they are therefore unconstitutional.
    - Concerning Article 19:
  5. Article 19 amends Articles L. 300-1 and L. 822-2 of the Construction and Residential Housing Code, and Article L. 512-2 of the Social Security Code, and supplements Article L. 232-1 of the Social Action and Family Code in order to introduce a minimum condition of residence in France or membership in a compulsory social security scheme in respect of a professional activity in order to benefit from certain rights, assistance and allowances, or certain benefits.
  6. The President of the National Assembly has asked the Constitutional Council to examine the place of Article 19 in the law referred for review. The applicant Members of Parliament and Senators contend that this article has no place in the law referred for review, on the grounds that it was introduced in the first reading according to a procedure contrary to Article 45 of the Constitution.
  7. In substance, the President of the National Assembly is asking the Constitutional Council to examine whether Article 19 complies with the right to have a normal family life, the right to personal privacy, and the principle of equality before the law. The applicant Members of Parliament and Senators, for their part, criticise this article for violating this same principle. The applicant Members of Parliament also consider that these provisions fail to respect the requirements of the tenth and eleventh paragraphs of the Preamble of the Constitution of 1946 and the right to education. Lastly, the applicant Senators consider that these provisions fail to comply with the constitutional objective of the intelligibility and accessibility of the law.
  8. The purpose of Article 19 is to make entitlement to housing, personal housing assistance, personalised independence allowance and family benefits for non-EU foreign nationals conditional on residence in France for a period of at least five years or affiliation to a professional activity for at least thirty months.
  9. Introduced at first reading, as these provisions are related to social legislation, they are not related, even indirectly, with any of the provisions contained in the bill submitted to the bureau of the Senate.
  10. Consequently, without having to rule on the other objections and without the Constitutional Council prejudging the compliance of the content of these provisions with the other constitutional requirements, it is determined that, as they were adopted using a procedure that is unconstitutional, they are therefore unconstitutional.
  • Concerning the place of Articles 24, 25, and 26:
  1. Article 24 supplements Article 25 of the Civil Code relating to forfeiture of French nationality. Article 25 amends Article 21-7 of the same code relating to the acquisition of French nationality by reason of birth and residence in France. Article 26 amends Article 21-27 of this code relating to certain methods of acquiring French nationality.
  2. The applicant Members of Parliament and Senators contend that Articles 24 to 26 have no place in the law referred for review, on the grounds that they were introduced in the first reading according to a procedure contrary to Article 45 of the Constitution.
  3. Introduced at first reading, these provisions relating to certain conditions for acquiring or forfeiting French nationality are not linked, even indirectly, to any of the provisions that appeared in the bill submitted to the bureau of the Senate.
  4. Consequently, without the Constitutional Council prejudging if the content of these provisions conform to other constitutional requirements, it is determined that, as they were adopted according to a procedure contrary to the Constitution, they are therefore unconstitutional.
    - Concerning Article 32:
  5. Article 32 amends Article 175-2 of the Civil Code relating to the prerogatives of the district prosecutor in cases of suspected fraudulent marriage.
  6. The applicant Members of Parliament contend that this article has no place in the law referred for review, on the grounds that it was introduced in the first reading according to a procedure contrary to Article 45 of the Constitution.
  7. In substance, they criticise this article for excessively infringing the right to personal privacy, the right to have a normal family life and the freedom to marry.
  8. Article 32 stipulates that, in the event of a suspected fraudulent marriage reported by the civil registrar, if the district prosecutor remains silent for fifteen days, the marriage will henceforth be suspended by default for two months, renewable once.
  9. Introduced at first reading, these provisions relating to the verification of the conditions required to be able to enter into marriage are not related, even indirectly, with any of the provisions that appeared in the bill submitted to the bureau of the Senate.
  10. Consequently, without having to rule on the other objections, and without the Constitutional Council prejudging the compliance of the content of these provisions with the other constitutional requirements, it is determined that, as they were adopted using a procedure that is unconstitutional, they are therefore unconstitutional.
  • Concerning the place of Article 33:
  1. Article 33 amends Article L. 423-22 of the Code for Entry and Residence of Foreigners and Right of Asylum (CESEDA) to provide that the issue of a temporary residence permit bearing the designation “vie privée et familiale” (private and family life) to a young adult who has been entrusted to the child welfare service by the time he or she reaches the age of 16 is now subject to the proven absence of links with his or her family in his or her country of origin.
  2. The applicant Members of Parliament contend that this article has no place in the law referred for review, on the grounds that it was introduced in the first reading according to a procedure contrary to Article 45 of the Constitution.
  3. Introduced at first reading, the purpose of these provisions is to change the conditions that certain foreign nationals must meet in order to be issued a residence permit for family reasons. They are therefore not related, even indirectly, to the aforementioned Articles 1, 3, 6, and 7 of the initial bill. They also are not related, even indirectly, with any of the other provisions that were in the bill submitted to the bureau of the Senate.
  4. Consequently, without the Constitutional Council prejudging if the content of these provisions conform to other constitutional requirements, it is determined that, as they were adopted according to a procedure contrary to the Constitution, they are therefore unconstitutional.
  • Concerning certain provisions of Article 35:
  1. 2° of paragraph I of Article 35 amends Articles L. 631-2 and L. 631-3 of the Code for Entry and Residence of Foreigners and Right of Asylum (CESEDA) in order to broaden the cases in which, by way of derogation from the protection afforded to certain categories of foreign nationals under these provisions, they may be subject to an expulsion order.
  2. According to the applicant Members of Parliament and Senators, these provisions would excessively broaden the cases in which it is possible to derogate from the protection afforded to certain categories of foreign nationals against deportation. In this respect, the applicant Members of Parliament argue that, by providing that an expulsion decision may be based on “a deliberate and particularly serious breach of the principles of the Republic”, these provisions are vitiated by lack of intelligibility. In addition, they argue that they would disproportionately infringe the “fundamental rights of foreign nationals” and disregard the principles of the individual assessment of penalties and the presumption of innocence, as well as the principle of equality before the law. As for the applicant Senators, they criticise the fact that deportation can be decided solely on the basis of the penalty incurred by a foreign national who has been convicted, regardless of the sentence this foreign national received, even if he or she has special ties with France. This results in a violation of the right to have a normal family life, the right to personal privacy, and the freedom of movement.
    . Concerning the sixth paragraph of Article L. 631-2 of the Code for Entry and Residence of Foreigners and Right of Asylum (CESEDA) and the ninth paragraph of Article L. 631-3 of the same code, in their formulation resulting from Article 35:
  3. No principle or rule of constitutional value guarantees foreign nationals general and absolute rights of access to and residence on national territory. The conditions of their entry and residence may be restricted by administrative police measures conferring extensive powers on the public authority and based on specific rules. It is the legislature’s responsibility, on the one hand, to ensure the reconciliation between preventing disturbances to public order, and on the other hand, to ensure the respect of rights and freedoms guaranteed by the Constitution for all people residing on French territory. These rights and freedoms include freedom of movement, the right to personal privacy, and the right to have a normal family life.
  4. The legislature, acting within its area of competence, may at any time amend or repeal earlier enactments, substituting other provisions where appropriate, provided that in so doing it does not deprive constitutional requirements of any legal guarantee.
  5. According to Article L. 631-1 of the Code for Entry and Residence of Foreigners and Right of Asylum (CESEDA), the administrative authority may decide to expel a foreign national when his or her presence in France constitutes a serious threat to public order, subject to the conditions specific to the foreign nationals mentioned in Articles L. 631-2 and L. 631-3 of the same code.
  6. Foreign nationals in one of the categories mentioned in Article L. 631-2 may only be expelled if this is an imperative necessity for State security or public safety and provided that Article L. 631-3 does not prevent it. Those who fall into one of the categories mentioned in this last article may only be expelled if they behave in a way that is likely to harm the fundamental interests of the State, is linked to activities of a terrorist nature, or constitutes explicit and deliberate incitement to discrimination, hatred, or violence against a specific person or group of people.
  7. The disputed provisions state that, by way of derogation from Articles L. 631-2 and L. 631-3 of the Code for Entry and Residence of Foreigners and Right of Asylum (CESEDA), a foreign national in one of the categories mentioned in these articles may be subject to a deportation order if he or she has already been convicted of a criminal offence or certain délits (offences punishable by fine or imprisonment of no more than ten years).
  8. Firstly, while the administrative authority may now decide to expel a foreign national protected under one of the categories mentioned in Articles L. 631-2 and L. 631-3 if he or she has been convicted of a criminal offence or délit (offence punishable by fine or imprisonment of no more than ten years) punishable, depending on the case, by at least three or five years’ imprisonment, its decision must be justified and proportionate to the reasons behind it. As such, it must demonstrate, on the basis of the precise and detailed facts that it is able to invoke, that the foreign national’s presence on national territory still constitutes a serious and present threat to public order at the date of the decision, regardless of the offence that the person concerned has committed. It must also take into account the foreign national’s personal and family circumstances.
  9. Secondly, the foreign national may appeal the expulsion decision before the administrative court, in particular before the urgent applications judge, who, on the basis of Articles L. 521-1 and L. 521-2 of the Code of Administrative Justice, may suspend enforcement of the expulsion order or order any measures necessary to safeguard a fundamental freedom. The administrative court is responsible for ensuring that the measures are appropriate, necessary, and proportionate to the result they are pursuing.
  10. Accordingly, the legislature has ensured that there is no manifest imbalance between, on the one hand, the constitutional objective of preventing disruptions of public order and, on the other hand, the freedom of movement, the right to personal privacy, and the right to have a normal family life. The objections alleging the violation of these constitutional requirements must therefore be dismissed.
  11. Consequently, the sixth paragraph of Article L. 631-2 of the Code for Entry and Residence of Foreigners and Right of Asylum (CESEDA) and the ninth paragraph of Article L. 631-3 of the same code, which do not violate any other constitutional requirement, conform to the Constitution.
    . Concerning certain provisions of the first paragraph of Article L. 631-3 of the Code for Entry and Residence of Foreigners and Right of Asylum (CESEDA) in its formulation resulting from Article 35:
  12. Firstly, the constitutional objective of accessibility and intelligibility of the law, which derives from Articles 4, 5, 6, and 16 of the Declaration of Human and Civic Rights of 1789, requires the legislature to adopt sufficiently precise provisions and unambiguous wording. It must protect the subjects of law against an interpretation that is contrary to the Constitution or against the risk of arbitrariness, without transferring to administrative or judicial authorities the task of laying down rules whose determination has been entrusted solely to the law by the Constitution.
  13. The disputed provisions of the first paragraph of Article L. 631-3 of the Code for Entry and Residence of Foreigners and Right of Asylum (CESEDA) provide that the deliberate and particularly serious violation of the principles of the Republic constitutes conduct likely to undermine the fundamental interests of the State.
  14. By referring to the principles of the Republic which are set out in Article L. 412-7 of the same code in its formulation resulting from Article 46 of the law referred for review, these provisions are not unintelligible.
  15. Secondly, the expulsion order is not a punishment but a measure carried out by administrative police. Consequently, the objections alleging violation of the principles of individualisation of penalties and of the presumption of innocence can only be dismissed.
  16. Consequently, the words “including the deliberate and particularly serious violation of the principles of the Republic set out in Article L. 412-7” in the first paragraph of Article L. 631-3 of the Code for Entry and Residence of Foreigners and Right of Asylum (CESEDA), which do not violate the principle of equality before the law or any other constitutional requirement, conform to the Constitution.
  • Concerning certain provisions of Article 37:
  1. 1° of Article 37 rewrites Article L. 611-3 of the Code for Entry and Residence of Foreigners and Right of Asylum (CESEDA) in order to remove the protection afforded to certain categories of foreign nationals against the imposition of an obligation to leave French territory, with the exception of minors under the age of eighteen.
  2. The applicant Senators contend that these provisions deprive the right to have a normal family life, the right to personal privacy, and the freedom of movement of legal guarantees. The applicant Members of Parliament contend that they disproportionately infringed the “fundamental rights of foreign nationals” and violated the principle of equality before the law.
  3. Firstly, by adopting the disputed provisions, the legislature intended to make it possible for a decision requiring foreign nationals to leave French territory to be handed down, including in the case of foreign nationals who had previously benefited from a protection regime. The legislator therefore pursued the objective of constitutional value of preventing disturbances to public order.
  4. Secondly, the disputed provisions maintain the protection afforded to foreign nationals under the age of eighteen.
  5. On the other hand, it follows from Article L. 613-1 of the Code for Entry and Residence of Foreigners and Right of Asylum (CESEDA), in its formulation resulting from Article 37 of the law referred for review, that the decision imposing an obligation to leave French territory must state the reasons on which it is based and that it be issued after verification of the right to residence, taking into account in particular the length of time the foreign national has been present on French territory, the nature and length of his or her ties with France and the humanitarian considerations that may justify such a right. In particular, it is up to the administrative authority to assess, under the supervision of the administrative court, whether the foreign national can claim stable and regular residence on French territory, such as to have created multiple links between him or her and the host country.
  6. Finally, pursuant to Article L. 722-7 of the Code for Entry and Residence of Foreigners and Right of Asylum (CESEDA), a foreign national who is the subject of a decision imposing an obligation to leave French territory may not actually be deported before the expiry of the time limit for challenging this decision before the administrative court, or before the court has given its ruling if the matter has been referred to it.
  7. It follows from the foregoing that the legislature has ensured that there is no manifest imbalance between, on the one hand, the objective of constitutional value of preventing disruptions of public order and, on the other hand, the freedom of movement, the right to personal privacy, and the right to have a normal family life. The objections to the violation of these constitutional requirements must therefore be dismissed.
  8. Consequently, Article L. 611-3 of the Code for Entry and Residence of Foreigners and Right of Asylum (CESEDA) which does not violate the principle of equality before the law, nor any other constitutional requirement, conforms to the Constitution.
    - Concerning Article 38:
  9. Article 38 amends Articles L. 331-2 and L. 813-10 of the Code for Entry and Residence of Foreigners and Right of Asylum (CESEDA) to authorise the taking of fingerprints and photographs of foreign nationals without their consent.
  10. The applicant Members of Parliament criticised these provisions for not providing sufficient safeguards for the use of physical coercion, in particular with regard to the presence of the lawyer during the identification operations, informing the person concerned of the consequences of his or her refusal and taking into account his or her possible minority or vulnerability. In their view, this would result in a violation of individual freedom, of the principle of safeguarding the dignity of the individual, and of the requirements of Article 9 of the Declaration of Human and Civic Rights of 1789.
  11. The principle of not impeding individual freedom with unnecessary rigour comes from Articles 2, 4, and 9 of the Declaration of Human and Civic Rights of 1789.
  12. Under 3° of Article L. 142-1 of the Code for Entry and Residence of Foreigners and Right of Asylum (CESEDA), the fingerprints and photographs of foreign nationals residing in France illegally may be taken, stored, and processed automatically, when they are the subject of a decision of expulsion from French territory or when they, having been checked when crossing the border from a country that is not a party to the Convention signed in Schengen on 19 June 1990, do not meet the entry conditions laid down in Article 6 of the aforementioned Regulation of 9 March 2016 or in Article L. 311-1 of the same code.
  13. The disputed provisions allow the judicial police officer to use coercion to take the fingerprints or photograph of a foreign national in the event of the latter’s demonstrated refusal to submit to these operations during a check at the external borders or in the context of a detention for the purpose of verifying the foreign national’s right to move within or reside on French territory. This use of coercion, which may not be applied to minors, is strictly proportionate and takes account of the person’s vulnerability.
  14. By adopting these provisions, the legislature intended to make it easier to identify foreign nationals residing in France illegally. The legislator thus pursued the objective of combating illegal immigration that contributes to maintaining public order, an objective of constitutional value.
  15. However, on the one hand, these provisions merely stipulate that the judicial police officer who decides to take fingerprints or photographs without the consent of the person concerned must inform the district prosecutor beforehand. These operations are therefore neither subject to the authorisation of this magistrate, upon receipt of a reasoned request to this effect, nor subject to the demonstration that they constitute the sole means of identifying the person who refuses to submit to them.
  16. On the other hand, where the person being checked or detained has requested the assistance of a lawyer, neither the disputed provisions nor any other provision stipulate that fingerprints or photographs taken without the person’s consent must be in the presence of the lawyer.
  17. Consequently, the disputed provisions deprive the aforementioned constitutional requirements of legal guarantees.
  18. Consequently, without it being necessary to examine the other objections, Article 38 of the law referred for review must be declared unconstitutional.
  • Concerning the place of Article 39:
  1. Article 39 inserts a new Article L. 142-3-1 into the Code for Entry and Residence of Foreigners and Right of Asylum (CESEDA), providing for entry into a database of fingerprints and photographs from minors who declare themselves to be temporarily or permanently deprived of the protection of their family and in respect of whom there is serious or corroborating evidence making it likely that they may have participated, as perpetrators or accomplices, in criminal offences.
  2. The applicant Members of Parliament and Senators contend that this article has no place in the law referred for review, on the grounds that it was introduced in the first reading according to a procedure contrary to Article 45 of the Constitution.
  3. Introduced at first reading, these provisions cannot be considered to be unrelated, even indirectly, to those in Article 11 of the original bill, which authorised the taking of fingerprints and photographs of a foreign national residing in France illegally without his or her consent. The objection alleging the violation of the first paragraph of Article 45 of the Constitution must therefore be dismissed.
  4. As a result, Article 39 was adopted according to a procedure that conforms to the Constitution.
    - Concerning Article 42:
  5. Article 42 amends Articles L. 732-4 and L. 732-5 of the Code for Entry and Residence of Foreigners and Right of Asylum (CESEDA) in order to extend to one year, renewable twice, the duration of the house arrest to which certain foreign nationals subject to a removal order may be subject.
  6. The applicant Members of Parliament state that by increasing the maximum duration of house arrest to which certain foreign nationals may be subject to three years, even though they present no risk of a threat to public order, these provisions constitute a manifestly excessive infringement of the freedom of movement, the right to have a normal family life, and individual freedom.
  7. Pursuant to Article L. 731-3 of the Code for Entry and Residence of Foreigners and Right of Asylum (CESEDA), the administrative authority may, in certain cases, authorise a foreign national who is the subject of a removal order and who can prove that it is impossible to leave French territory, or that he or she is unable to return to his or her country of origin or to travel to any other country, to remain in France temporarily under house arrest until there is a reasonable prospect of his or her obligation being fulfilled.
  8. The disputed provisions stipulate that when a foreign national is subject to a decision imposing an obligation to leave French territory for which the period for voluntary departure has expired or has not been granted, when he or she must be removed to enforce a ban on returning to or moving within French territory or to implement a decision taken by another State, or when he or she must be handed over to the authorities of another State, this house arrest may not exceed a period of one year, renewable twice within the same time limit.
  9. Firstly, the purpose of this house arrest is, on the one hand, to guarantee the representation of foreign nationals subject to a removal order and, on the other hand, to organise the conditions under which they may remain temporarily on French territory, even though they do not have a permit authorising them to stay there, taking into account the disturbance to public order that this stay is likely to cause. Thus, by adopting these provisions, the legislator has pursued the objective of constitutional value of the safeguard of public order.
  10. Secondly, given the restrictions that the legislature may place on the freedom of movement, the right to personal privacy, and the right to have a normal family life for foreign nationals whose residence is not lawful and who are subject to a removal order, the legislature was free to set the duration of the house arrest at one year, renewable twice, in order to allow the administrative authority to exercise control over the foreign national until the execution of the removal order against him or her.
  11. However, renewal of the house arrest order beyond one year increases the measure’s severity. It is therefore up to the administrative authority to decide, for each renewal, on the conditions and places of house arrest, taking into account the constraints they impose on the person concerned, the time spent under this regime, and the family and personal ties established by the latter.
  12. It follows from the foregoing that, subject to the proviso set out in the previous paragraph, the disputed provisions do not disproportionately infringe the aforementioned constitutional requirements.
  13. Consequently, subject to the same proviso, the words “of one year” in the first paragraph of Article L. 732-4 of the Code for Entry and Residence of Foreigners and Right of Asylum (CESEDA), the word “two” in the first sentence of the second paragraph of the same article and the words “of one year” in the first paragraph of Article L. 732-5 of the same code, which do not violate individual freedom or any other constitutional requirement, conform to the Constitution.
  • Concerning the place of Article 44:
  1. Article 44 amends Article L. 222-5 of the Social Action and Family Code to provide for an exception to the obligation for departmental services to take charge of, under a contract for young adults, adults over 21 years of age who were previously entrusted to child welfare services when they have been ordered to leave French territory.
  2. The applicant Members of Parliament contend that this article has no place in the law referred for review, on the grounds that it was introduced in the first reading according to a procedure contrary to Article 45 of the Constitution.
  3. Introduced at first reading, these provisions cannot be considered to be unrelated, even indirectly, to the aforementioned provisions of Article 10 of the initial bill. The objection alleging the violation of the first paragraph of Article 45 of the Constitution must therefore be dismissed.
  4. As a result, Article 44 was adopted according to a procedure that conforms to the Constitution.
  • Concerning the place of Article 45:
  1. Article 45 amends Article L. 221-2-4 of the Social Action and Family Code to provide that the assessment of the situation of a person declaring himself/herself to be a minor and temporarily or permanently deprived of the protection of his/her family shall be carried out on the basis of national specifications defined in consultation with the departments.
  2. The applicant Members of Parliament contend that this article has no place in the law referred for review, on the grounds that it was introduced in the first reading according to a procedure contrary to Article 45 of the Constitution.
  3. Introduced at first reading, these provisions relating to the system of social assistance and action from which certain categories of vulnerable people benefit are not linked, even indirectly, with any of the provisions that appeared in the bill submitted to the bureau of the Senate.
  4. Consequently, without the Constitutional Council prejudging if the content of these provisions conform to other constitutional requirements, it is determined that, as they were adopted according to a procedure contrary to the Constitution, they are therefore unconstitutional.
  • Concerning certain provisions of Article 46:
  1. Article 46 inserts a new Article L. 412-7 into the Code for Entry and Residence of Foreigners and Right of Asylum (CESEDA) in order to require foreign nationals applying for a residence permit to sign a commitment to respect the principles of the Republic.
  2. First of all, the applicant Members of Parliament criticise these provisions for using the term “contract” to designate a unilateral undertaking and for defining in an imprecise manner the obligations that subscribing to such a contract entails for the foreign national. This would result in a violation of the constitutional objective of accessibility and intelligibility of the law. They also maintain that, by providing that foreign nationals may not rely on their beliefs or convictions in order to escape the common rules governing relations between public services and private individuals, these provisions introduce discrimination between foreign nationals and French citizens. This would result in a violation of Article 1 of the Constitution. Moreover, they state that these provisions would disproportionately restrict freedom of opinion and freedom of communication.
  3. Lastly, the applicant Members of Parliament are asking the Constitutional Council to examine whether the provisions of Article L. 823-9-3° of the Code for Entry and Residence of Foreigners and Right of Asylum (CESEDA), which have already been enacted, conform to the Constitution, in particular with regard to the principle that offences and penalties must be defined by law, as well as the principle of fraternity.
  4. The disputed provisions stipulate that foreign nationals wishing to obtain a residence permit must sign a contract in which they undertake to respect the principles of the Republic.
  5. Firstly, it follows from the very terms of these provisions that, by signing this contract, the foreign national undertakes to respect individual freedom, freedom of expression and conscience, equality between men and women, the dignity of the human person, the motto and symbols of the Republic within the meaning of Article 2 of the Constitution, and territorial integrity as defined by national borders, and not to use his or her beliefs or convictions to disregard the common rules governing relations between public services and private individuals. Neither the concept of a contract nor the obligations that this contract entails for the foreign national are unintelligible.
  6. Consequently, the objection alleging the violation of the objective of constitutional value of accessibility and intelligibility of the law must be dismissed.
  7. Secondly, according to Article 10 of the Declaration of Human and Civic Rights of 1789: “No one may be disturbed on account of his opinions, even religious ones, as long as the manifestation of such opinions does not interfere with the established Law and Order.” By virtue of its Article 11: “The free communication of ideas and of opinions is one of the most precious rights of man. Any citizen may therefore speak, write and publish freely, except what is tantamount to the abuse of this liberty in the cases determined by Law.” According to the first three sentences of the first paragraph of Article 1 of the Constitution: “France shall be an indivisible, secular, democratic and social Republic. It shall ensure the equality of all citizens before the law, without distinction of origin, race or religion. It shall respect all beliefs”.
  8. Far from violating these constitutional requirements, the legislature was able, in order to protect them, to provide that a foreign national applying for a residence permit must undertake to respect principles, including freedom of expression and conscience, which are binding on all those residing on the territory of the Republic. To this end, it was right to require foreign nationals, who are not in the same situation as French citizens, to sign a contract providing for an undertaking to respect individual freedom, freedom of expression and conscience, equality between men and women, the dignity of the human person, the motto and symbols of the Republic within the meaning of Article 2 of the Constitution, and territorial integrity, defined by national borders, and not to use their beliefs or convictions as a pretext to disregard the common rules governing relations between public services and private individuals.
  9. Accordingly, the objections alleging violation of the requirements of Articles 10 and 11 of the Declaration of Human and Civic Rights of 1789 and Article 1 of the Constitution must be dismissed.
  10. Finally, determining if a law that is already enacted conforms to the Constitution can take place when legislative provisions are reviewed that modify or round out the law, or have an effect on its scope.
  11. Article 46 of the law referred for review does not amend the already enacted provisions of Article L. 823-9-3° of the Code for Entry and Residence of Foreigners and Right of Asylum (CESEDA) relating to certain cases of exemption from criminal prosecution for aiding the illegal movement or residence of a foreign national. It does not round them out, nor does it have an effect on their scope. The conditions under which the conformity of these provisions with the Constitution can be usefully challenged have therefore not been met.
  12. Consequently, the objections alleging the violation of the principle that offences and penalties must be defined by law and of the principle of fraternity can only be dismissed.
  13. Consequently, the first paragraph of Article L. 412-7 of the Code for Entry and Residence of Foreigners and Right of Asylum (CESEDA), which does not violate any other constitutional requirement, conforms to the Constitution.
  • Concerning the place of Article 47:
  1. The applicant Members of Parliament contend that Article 47 has no place in the law referred for review, on the grounds that it was introduced in the first reading according to a procedure contrary to Article 45 of the Constitution.
    . Concerning paragraphs I and II:
  2. Paragraphs I and II insert two new Articles, L. 312-1-1 and L. 312-3-1, into the Code for Entry and Residence of Foreigners and Right of Asylum (CESEDA) in order to provide for the possibility of refusing long-stay visas and certain short-stay visas to nationals of a State that does not cooperate sufficiently in the readmission of its nationals residing in France illegally or that does not respect a bilateral or multilateral agreement on the management of migratory flows.
  3. Introduced at first reading, these provisions cannot be considered to be unrelated, even indirectly, to those of Article 13 of the initial bill, which introduced new criteria for the issue or withdrawal of certain residence documents, relating to the foreign national’s commitment to respect the principles of the Republic, the establishment of his or her actual and habitual residence in France or the absence of a serious threat to public order. The objection alleging the violation of the first paragraph of Article 45 of the Constitution must therefore be dismissed.
  4. As a result, paragraphs I and II of Article 47 were adopted according to a procedure that conforms to the Constitution.
    . Concerning paragraphs III and IV:
  5. Paragraphs III and IV round out Article 1 of the aforementioned Act of 4 August 2021 and Article L. 515-13 of the Monetary and Financial Code to provide that solidarity-based development aid must take account of the degree of cooperation between States in combating illegal immigration.
  6. Introduced at first reading, as these provisions are related to international development assistance, they are not related, even indirectly, with any of the provisions contained in the bill submitted to the bureau of the Senate.
  7. Consequently, without the Constitutional Council prejudging if the content of these provisions conform to other constitutional requirements, it is determined that, as they were adopted according to a procedure contrary to the Constitution, they are therefore unconstitutional.
  • Concerning the place of Article 48:
  1. Article 48 inserts a new Article L. 414-1-1 into the Code for Entry and Residence of Foreigners and Right of Asylum (CESEDA) to provide that, when taking a decision to refuse residence, withdraw a residence permit or document or expel a foreign national, the representative of the State in the French department must inform the social security bodies and the unemployment authority (Pôle Emploi) without delay. It also specifies the conditions under which these bodies remove from their rolls the insured persons who are foreign nationals.
  2. The applicant Members of Parliament contend that this article has no place in the law referred for review, on the grounds that it was introduced in the first reading according to a procedure contrary to Article 45 of the Constitution.
  3. Introduced at first reading, the purpose of these provisions is to inform social protection bodies with a view to removing from their rolls certain persons enrolled with these bodies. They are therefore not related, even indirectly, to the aforementioned provisions in Article 13 of the initial bill. They also are not related, even indirectly, with any of the other provisions that were in the bill submitted to the bureau of the Senate.
  4. Consequently, without the Constitutional Council prejudging if the content of these provisions conform to other constitutional requirements, it is determined that, as they were adopted according to a procedure contrary to the Constitution, they are therefore unconstitutional.
  • Concerning the place of Article 50:
  1. Article 50 supplements Article L. 711-2 of the Code for Entry and Residence of Foreigners and Right of Asylum (CESEDA) to specify that assistance with returning to the country of origin may only be granted once to a foreign national who has been ordered to leave French territory.
  2. The applicant Members of Parliament contend that this article has no place in the law referred for review, on the grounds that it was introduced in the first reading according to a procedure contrary to Article 45 of the Constitution.
  3. Introduced at first reading, the purpose of these provisions is to modify a support measure available to certain foreign nationals residing in France illegally. They are therefore not related, even indirectly, with the aforementioned provisions of Article 10 of the initial bill and those of Article 18, which introduced a new mandatory ground for refusing to issue a visa and entry into France if the foreign national has not complied with an obligation to leave French territory that was imposed on him or her less than five years previously. They also are not related, even indirectly, with any of the other provisions that were in the bill submitted to the bureau of the Senate.
  4. Consequently, without the Constitutional Council prejudging if the content of these provisions conform to other constitutional requirements, it is determined that, as they were adopted according to a procedure contrary to the Constitution, they are therefore unconstitutional.
  • Concerning the place of Article 51:
  1. Article 51 amends Article L. 751-10 of the Code for Entry and Residence of Foreigners and Right of Asylum (CESEDA) in order to extend the list of cases in which a non-negligible risk of absconding is deemed to have been established, justifying the detention of certain asylum seekers who are the subject of a request to be taken into care or taken back by another Member State of the European Union.
  2. The applicant Members of Parliament contend that this article has no place in the law referred for review, on the grounds that it was introduced in the first reading according to a procedure contrary to Article 45 of the Constitution.
  3. Introduced at first reading, these provisions cannot be considered to be unrelated, even indirectly, to the aforementioned provisions of Article 11 of the initial bill and those of its Article 12, which aim to prohibit the placement in an administrative detention centre of any foreign national accompanied by a minor under the age of sixteen. The objection alleging the violation of the first paragraph of Article 45 of the Constitution must therefore be dismissed.
  4. As a result, Article 51 was adopted according to a procedure that conforms to the Constitution.
    - Concerning Article 58:
  5. Article 58 amends Articles L. 332-2, L. 333-2, L. 352-3, and L. 361-4 of the Code for Entry and Residence of Foreigners and Right of Asylum (CESEDA) relating to decisions to refuse entry at the border or on asylum grounds.
  6. The applicant Members of Parliament contend that this article has no place in the law referred for review, on the grounds that it was introduced in the first reading according to a procedure contrary to Article 45 of the Constitution.
  7. In substance, they accuse these provisions of infringing the right to effective legal protection and the right to asylum, and of violating individual freedom.
  8. Article 58 abolishes, except for minors, the period of one clear day that foreign nationals who are refused entry to French territory may request before being repatriated.
  9. Introduced at first reading, the purpose of these provisions is to amend the conditions for enforcing decisions to refuse entry. They therefore have no link, even indirectly, with the aforementioned provisions of Article 11 of the initial bill and those of Article 16, which aimed to bring national law into line with European provisions on the creation of a European travel information and authorisation system. They also are not related, even indirectly, with any of the other provisions that were in the bill submitted to the bureau of the Senate.
  10. Consequently, without having to rule on the other objections and without the Constitutional Council prejudging the compliance of the content of these provisions with the other constitutional requirements, it is determined that, as they were adopted using a procedure that is unconstitutional, they are therefore unconstitutional.
  • Concerning the place of Article 63:
  1. Article 63 amends Articles L. 531-36, L. 531-38, and L. 531-39 of the Code for Entry and Residence of Foreigners and Right of Asylum (CESEDA), to provide that when the French office for the protection of refugees and stateless persons (OFPRA) is informed by the applicant that their asylum application has been withdrawn, it will close the examination of the application. These provisions also stipulate that the office may take a decision to terminate the examination of an asylum application if the applicant has abandoned the place where he or she was staying without legitimate reason.
  2. The applicant Members of Parliament contend that this article has no place in the law referred for review, on the grounds that it was introduced in the first reading according to a procedure contrary to Article 45 of the Constitution.
  3. Introduced at first reading, these provisions cannot be considered to be unrelated, even indirectly, to those of Article 19 of the initial bill, which was intended to create territorial “France Asile” (France Asylum) centres for the purpose of lodging asylum applications with the office. The objection alleging the violation of the first paragraph of Article 45 of the Constitution must therefore be dismissed.
  4. As a result, Article 63 was adopted according to a procedure that conforms to the Constitution.
    - Concerning Article 65:
  5. Article 65 amends Articles L. 561-2 to L. 561-4 of the Code for Entry and Residence of Foreigners and Right of Asylum (CESEDA), relating to the family reunification scheme for refugees or beneficiaries of subsidiary protection.
  6. The applicant Members of Parliament argue that certain provisions of this article violate the right to have a normal family life, the right to personal privacy, the principle of clarity of the law and the constitutional objective of accessibility and intelligibility of the law.
  7. Article 65 amends the age and parentage criteria for applying for family reunification, as well as the date at which the child’s minority must be assessed. It supplements the list of cases in which family reunification is refused to take into account the circumstance in which the spouse, civil union partner, cohabitee or child has ceased to have a sufficiently stable and continuous relationship with the refugee or beneficiary of subsidiary protection to form a family with him or her. It also limits the deadline for applying for a visa under the family reunification procedure to eighteen months after refugee status or subsidiary protection has been granted.
  8. Introduced at first reading, the purpose of these provisions is to amend the conditions governing the right of refugees to be joined by certain members of their family. They are therefore not related, even indirectly, to the aforementioned Articles 1, 3, 6, 7, 13, and 18 of the initial bill. They also are not related, even indirectly, with any of the other provisions that were in the bill submitted to the bureau of the Senate.
  9. Consequently, without having to rule on the other objections, and without the Constitutional Council prejudging the compliance of the content of these provisions with the other constitutional requirements, it is determined that, as they were adopted using a procedure that is unconstitutional, they are therefore unconstitutional.
  • Concerning certain provisions of Article 66:
  1. Article 66 amends the first paragraph of Articles L. 551-15 and L. 551-16 of the Code for Entry and Residence of Foreigners and Right of Asylum (CESEDA) to provide that, in certain cases, the French Office for Immigration and Integration may refuse or terminate the material reception conditions to which an asylum seeker is entitled.
  2. The Members of Parliament criticise these provisions for no longer allowing the administrative authority to take account of the asylum seeker’s particular situation when refusing material reception conditions or deciding to end them. In their view, such a decision, which would have the effect of an automatic sanction, would deprive the asylum seeker and his or her family of adequate means of subsistence. This would result in a violation of the eleventh paragraph of the Preamble of the Constitution of 1946 and of the principles of necessity, proportionality, and individualisation of penalties.
  3. According to the eleventh paragraph of the Preamble of the Constitution of 1946, the Nation “shall guarantee to all, notably to children, mothers and elderly workers, protection of their health, material security, rest and leisure. All people who, by virtue of their age, physical or mental condition, or economic situation, are incapable of working, shall have the right to receive suitable means of existence from society.”
  4. The legislature, acting within its area of competence, may at any time amend or repeal earlier enactments, substituting other provisions where appropriate, provided that in so doing it does not deprive constitutional requirements of any legal guarantee.
  5. Pursuant to Article L. 551-9 of the Code for Entry and Residence of Foreigners and Right of Asylum (CESEDA), the material conditions of reception, which include certain benefits and the payment of an allowance, are offered to each asylum seeker by the French Office for Immigration and Integration. Articles L. 551-15 and L. 551-16 of the same code stipulate that, in certain cases, material reception conditions may be refused to an asylum seeker or may be terminated.
  6. While the disputed provisions of Articles L. 551-15 and L. 551-16 now provide that, in these same cases, material reception conditions are to be refused to an asylum seeker or terminated, it is clear from the very terms of these articles, in their formulation resulting from Article 66 of the law referred for review, that the administrative authority must comply with the requirements of Article 20 of the aforementioned Directive of 26 June 2013. Its decision to refuse or terminate material reception conditions is subject to a prior examination of the particular situation of the person concerned, and specifically, their vulnerability.
  7. Consequently, the objection alleging the violation of the requirements of eleventh paragraph of the Preamble of the Constitution of 1946 must be dismissed.
  8. The same applies to the objections alleging violation of the principles of necessity, proportionality, and individualisation of penalties, which are in any event inoperative in the case of the disputed provisions, since they do not introduce a sanction having the nature of a punishment.
  9. Consequently, the first paragraph of Article L. 551-15 and L. 551-16 of the Code for Entry and Residence of Foreigners and Right of Asylum (CESEDA), which do not violate any other constitutional requirement, conform to the Constitution.
    - Concerning Article 67:
  10. Article 67 amends Articles L. 345-2, L. 345-2-2 and L. 345-2-4 of the Social Action and Family Code relating to emergency accommodation.
  11. The applicant Members of Parliament contend that this article has no place in the law referred for review, on the grounds that it was introduced in the first reading according to a procedure contrary to Article 45 of the Constitution.
  12. In substance, they criticise some of these provisions for violating the principle of safeguarding human dignity.
  13. Article 67 makes the State directly responsible for the integrated reception and orientation service for homeless people and stipulates that foreign nationals who do not have the right to stay in France and who are subject to a decision requiring them to leave French territory or a deportation order may only be accommodated within the emergency accommodation system while awaiting deportation.
  14. Introduced at first reading, these provisions relating to emergency accommodation for certain categories of homeless people or people in distress are not linked, even indirectly, with any of the provisions that appeared in the bill submitted to the bureau of the Senate.
  15. Consequently, without having to rule on the other objection and without the Constitutional Council prejudging the compliance of the content of these provisions with the other constitutional requirements, it is determined that, as they were adopted using a procedure that is unconstitutional, they are therefore unconstitutional.
  • Concerning the place of Article 68:
  1. Article 68 amends Article L. 302-5 of the Construction and Residential Housing Code to include places in certain accommodation facilities for asylum seekers in the housing taken into account under the obligations of municipalities with regard to the number of social rental housing units in their territory.
  2. The applicant Members of Parliament contend that this article has no place in the law referred for review, on the grounds that it was introduced in the first reading according to a procedure contrary to Article 45 of the Constitution.
  3. Introduced at first reading, these provisions relating to the social housing obligations of municipalities are not linked, even indirectly, to any of the provisions that appeared in the bill tabled in the Senate.
  4. Consequently, without having to rule on the other objections and without the Constitutional Council prejudging the compliance of the content of these provisions with the other constitutional requirements, it is determined that, as they were adopted using a procedure that is unconstitutional, they are therefore unconstitutional.
  • Concerning the place of Article 69:
  1. Article 69 amends Articles L. 551-12 and L. 552-15 of the Code for Entry and Residence of Foreigners and Right of Asylum (CESEDA) in order to provide that, unless the French Office for Immigration and Integration gives a reasoned decision, persons whose asylum application has been definitively rejected may not remain in the accommodation to which they have been admitted, and secondly, to specify the cases in which the competent administrative authority or the manager of the place of accommodation refers the matter to the judge, after formal notice has remained without a response, in order to order the occupant of a place of accommodation for asylum seekers to vacate said accommodation.
  2. The applicant Members of Parliament contend that this article has no place in the law referred for review, on the grounds that it was introduced in the first reading according to a procedure contrary to Article 45 of the Constitution.
  3. Introduced at first reading, as these provisions are related to housing asylum seekers, they are not related, even indirectly, with any of the provisions contained in the bill submitted to the bureau of the Senate.
  4. Consequently, without the Constitutional Council prejudging if the content of these provisions conform to other constitutional requirements, it is determined that, as they were adopted according to a procedure contrary to the Constitution, they are therefore unconstitutional.
  • Concerning certain provisions of Article 70:
  1. Article 70-1° inserts two new Articles L. 131-5 and L. 131-7 into the Code for Entry and Residence of Foreigners and Right of Asylum (CESEDA) in order to lay down the rules relating to the chairmanship of a panel of judges of the National Court of Asylum and to determine the panels in which this court delivers its decisions.
  2. The Members of Parliament criticised these provisions for providing that the National Court of Asylum would henceforth rule as a single judge and no longer, save in exceptional circumstances, as a panel, which would adversely affect the quality of the exchanges between the panel and the asylum seekers and would prevent the judge from properly assessing their situation. This would result in a violation of the right to effective legal protection and defendant’s rights.
  3. The applicant Senators also criticise these provisions for making the composition of the formation of the court dependent solely on the discretion of the presiding judge of the National Court of Asylum or the presiding judge of the formation of the court. This would result in a violation of the right to a fair trial, defendant’s rights, and the principle of equality before the law.
  4. The applicant Members of Parliament also criticise the vagueness of the condition relating to the experience that a non-permanent magistrate must have acquired in order to be able to preside over a formation of the court. The legislature would have therefore violated the scope of its jurisdiction and the constitutional objective of accessibility and intelligibility of the law.
  5. Firstly, Article 16 of the Declaration of Human and Civic Rights of 1789 guarantees the right to a fair trial and defendant’s rights.
  6. It follows from Article 6 of the Declaration of Human and Civic Rights of 1789, according to which the law “must be the same for all, whether it protects or punishes”, and from Article 16 that, while the legislature may provide for different rules of procedure depending on the facts, situations and persons to which they apply, it is on condition that these differences do not result from unjustified distinctions and that equal guarantees are provided to those subject to trial.
  7. The disputed provisions of Article L. 131-5 of the Code for Entry and Residence of Foreigners and Right of Asylum (CESEDA) provide that a panel of the National Court of Asylum may be chaired by a non-permanent magistrate with at least six months’ experience of sitting on a panel of the Court. Under the disputed provisions of Article L. 131-7 of the same code, the decisions of the National Court of Asylum are handed down by the presiding judge of the panel ruling alone, unless the presiding judge of the National Court of Asylum or the presiding judge of the formation of the court decides that a case needs to be examined by a panel.
  8. On the one hand, the fact that the National Court of Asylum rules as a single judge does not in itself infringe defendant’s rights. On the other hand, the presiding judge of the National Court of Asylum or the judge presiding over a formation of the court may decide, on his or her own initiative or at the request of the applicant, to refer the examination of a case to a panel at any stage of the procedure, if he or she considers that the case raises a question that justifies it. By leaving it up to the presiding judge of the National Court of Asylum or the judge presiding over a formation of the court to decide whether a case should be heard by a panel, the legislature has not introduced unjustified discrimination between asylum seekers, who are guaranteed equal safeguards.
  9. Consequently, the disputed provisions do not violate the right to a fair trial, the defendant’s rights or the principle of equality before the law. The objections alleging the violation of these constitutional requirements must therefore be dismissed.
  10. Secondly, pursuant to Article L. 131-4 of the Code for Entry and Residence of Foreigners and Right of Asylum (CESEDA), the members of the formations of the court are required to attend more than twelve days of hearings per year. Yet, under Article L. 131-6 of the same code, when sitting as a panel, the formation of the court may include a non-permanent magistrate in addition to its presiding judge and a qualified person. Thus, by providing that a non-permanent magistrate must have at least six months’ experience on a panel in order to be able to rule as a single judge, the disputed provisions of Article L. 131-5 necessarily imply that this magistrate must have only taken part in hearings on a panel during this period.
  11. Consequently, the legislature has therefore defined the experience requirement set out in these provisions with sufficient precision. The objections alleging that the legislature did not act fully within the competence of its jurisdiction, and the violation of the constitutional objective of accessibility and intelligibility of the law, must therefore be dismissed.
  12. Consequently, the words “having at least six months’ experience on a panel of the Court” in the first paragraph of Article L. 131-5 of the Code for Entry and Residence of Foreigners and Right of Asylum (CESEDA) and Article L. 131-7 of the same code, which do not violate the right to effective legal protection or any other constitutional requirement, conform to the Constitution.
  • Concerning certain provisions of Articles 72 and 76:
  1. Paragraph I of Article 72 inserts a new Article L. 922-3 into the Code for Entry and Residence of Foreigners and Right of Asylum (CESEDA) in order to set out the conditions under which the hearing before the presiding judge of the administrative court takes place in relation to the placement or retention of a foreign national in administrative detention or in a waiting area. Paragraph I of Article 76 specifically rewrites Articles L. 342-6 and L. 743-7 of the same code in order to set out the conditions under which the hearing before the judge for liberties and detention in this matter takes place.
  2. The applicant Members of Parliament contend that by allowing widespread and discretionary use of videoconferencing for hearings in administrative detention and waiting areas, these provisions violate the right to a fair trial. In their view, Article 76 of the law referred for review also violates individual freedom and the right to asylum on the same grounds.
  3. Pursuant to Articles L. 342-6 and L. 743-7 of the Code for Entry and Residence of Foreigners and Right of Asylum (CESEDA), in their formulation resulting from Article 76 of the law referred for review, when the judge for liberties and detention rules on the retention of a foreign national in a waiting area or in administrative detention, the hearing is held in the courtroom allocated to the Ministry of Justice, specially set up in the immediate vicinity of the waiting area or the place of detention. According to Article L. 922-3 of the same code, in its formulation resulting from Article 72 of the law referred for review, when a foreign national placed or kept in administrative detention or in a waiting area lodges an appeal with the administrative court, the hearing is held in the same room.
  4. However, the disputed provisions of these articles stipulate that the judge may sit, depending on the case, on the premises of the administrative court or the judicial court within whose jurisdiction the waiting area or place of detention is located. The two courtrooms are then linked in real time via audiovisual communication.
  5. Firstly, by allowing hearings to be held using audiovisual communication, the legislature intended to contribute to the proper administration of justice.
  6. Secondly, the foreign national’s lawyer may attend the hearing in either room. They can therefore choose to be physically present at the client’s side and, in any event, have the right to speak confidentially with the client. A copy of the entire case file is also made available to the interested party. Moreover, both courtrooms are open to the public and a report is drawn up in each courtroom attesting to the compliance of the operations carried out.
  7. Finally, the means of audiovisual communication used must guarantee the confidentiality and quality of the transmission. In this respect, the presiding judge of the administrative court or the judge for liberties and detention may, on their own initiative or at the request of the parties, suspend the hearing if they find that the quality of the retransmission does not allow the foreign national or his or her counsel to present his or her explanations under conditions that guarantee the proper administration of justice.
  8. It follows from the foregoing that the objection alleging the violation of the right to a fair trial must be dismissed.
  9. Consequently, the second paragraph of Articles L. 342-6 and L. 743-7 of the Code for Entry and Residence of Foreigners and Right of Asylum (CESEDA), which does not violate individual freedom, the right of asylum or any other constitutional requirement, and the second paragraph of Article L. 922-3 of the same code, which does not violate any other constitutional requirement, conform to the Constitution.
  • Concerning certain provisions of Article 77:
  1. Article 77-I-1° rewrites Article L. 342-5 of the Code for Entry and Residence of Foreigners and Right of Asylum (CESEDA) in order to provide, in particular, that the time limit within which the judge for liberties and detention must rule on a request to keep a foreign national in the waiting area may be extended to forty-eight hours in the event that a large number of foreign nationals are placed in the waiting area at the same time, given the constraints of the judicial service.
  2. The applicant Members of Parliament criticised these provisions for allowing an extension of the time limit set by the judge for liberties and detention for a reason which, in their view, was merely intended to compensate for the inadequacy of the resources made available by the State. This would result in a disproportionate infringement of individual freedom.
  3. According to Article 66 of the Constitution: “No one shall be arbitrarily detained. - The Judicial Authority, guardian of the freedom of the individual, shall ensure compliance with this principle in the conditions laid down by statute.” Individual freedom, which the judicial authority is charged with protecting, should not be impeded by unnecessary rigour. The infringement to the exercise of this freedom must be appropriate, necessary, and proportional to the pursued objectives. In the exercise of its powers, the legislature may lay down different arrangements for the intervention of the judicial authority depending on the nature and scope of the measures affecting individual freedom that it intends to enact. Individual liberty can only be considered protected if the judge intervenes in the shortest time frame possible.
  4. Pursuant to Articles L. 341-1 and L. 351-1 of the Code for Entry and Residence of Foreigners and Right of Asylum (CESEDA), the administration may decide to place a foreign national who is not authorised to enter French territory in a waiting area, as well as a foreign national who applies to enter France as an asylum seeker. Continued detention in the waiting area beyond four days from the initial placement decision may be authorised by the judge for liberties and detention.
  5. According to the first paragraph of Article L. 342-5 of the same code, when a request is made to the judge to keep the person in the waiting zone, the judge for liberties and detention makes an order within twenty-four hours of the request being made. The disputed provisions of the second paragraph of this article stipulate that this time limit may be extended to forty-eight hours if a large number of foreign nationals are placed in the waiting area at the same time, in view of the constraints of the judicial service.
  6. On the one hand, while the time given to the judge for liberties and detention to make a decision may result in the person placed in the waiting area being deprived of their liberty for a further forty-eight hours, the resulting deprivation of liberty, until the order is made, may not exceed a total of six days.
  7. On the other hand, the trial period may only be extended by decision of the first presiding judge, who must assess whether the simultaneous presence of a large number of foreign nationals in the waiting area is, in view of the constraints of the judicial service, actually such as to justify this extension.
  8. Consequently, the disputed provisions do not violate the requirements of Article 66 of the Constitution.
  9. Consequently, the words “or, by order of the first presiding judge, in the event of the simultaneous placement of a large number of foreign nationals in a waiting area in view of the constraints of the judicial service” in the second paragraph of Article L. 342-5 of the Code for Entry and Residence of Foreigners and Right of Asylum (CESEDA), which do not violate any other constitutional requirement, conform to the Constitution.
    - Concerning Article 81:
  10. Article 81 amends Article 2493 of the Civil Code and inserts the new Articles 2535 to 2540 within the same code in order to modify the conditions for acquiring French nationality for minors born to foreign parents in certain overseas territories.
  11. The applicant Senators contend that this article has no place in the law referred for review, on the grounds that it was introduced in the first reading according to a procedure contrary to Article 45 of the Constitution.
  12. In substance, the applicant Members of Parliament criticised these provisions for violating the principles of equality before the law and of the indivisibility of the Republic.
  13. Article 81 amends the specific regime applicable in Mayotte for the acquisition of French nationality by a child born of foreign parents. It also introduces a derogation applicable to the regional and local authority of French Guiana and to Saint-Martin.
  14. Introduced at first reading, these provisions relating to certain conditions for acquiring French nationality are not related, even indirectly, to any of the provisions that appeared in the bill submitted to the bureau of the Senate.
  15. Consequently, without having to rule on the other objections and without the Constitutional Council prejudging the compliance of the content of these provisions with the other constitutional requirements, it is determined that, as they were adopted using a procedure that is unconstitutional, they are therefore unconstitutional.
  • Concerning the place of other provisions in the law referred for review:
  1. Article 22 rewrites Article L. 811-2 of the Code for Entry and Residence of Foreigners and Right of Asylum (CESEDA) to provide that foreign civil status documents and court decisions produced by a foreign national to prove his or her identity and family ties, in particular, must first be legalised. Introduced at first reading, these provisions are not related, even indirectly, with the aforementioned provisions of Article 13 of the initial bill.
  2. 2° of Article 64 inserts a new Article L. 542-7 into the Code for Entry and Residence of Foreigners and Right of Asylum (CESEDA) in order to provide that the final decision to reject an asylum application by the French office for the protection of refugees and stateless persons (OFPRA) will immediately result in the suspension of coverage of the foreign national’s healthcare costs. Introduced at first reading, these provisions are not related, even indirectly, with the aforementioned provisions of Article 10 of the initial bill.
  3. These provisions also are not related, even indirectly, with any of the other provisions that were in the bill submitted to the bureau of the Senate.
  4. Without the Constitutional Council prejudging if the content of these provisions conform to other constitutional requirements, it is determined that, as they were adopted according to a procedure contrary to the Constitution, they are therefore unconstitutional.
    - Concerning the other provisions:
  5. The Constitutional Council has not systematically raised any other question of constitutionality and has therefore not ruled on the constitutionality of provisions other than those examined in this decision.
    THE CONSTITUTIONAL COUNCIL DECIDES:
    Article 1. - The following provisions of the act to control immigration and improve integration are unconstitutional: - the second paragraph of 1° and 2° of Article 1;
  • Articles 3, 4, 5, 6, 8, 9, 10, 11, 12, and 13;
  • the words “as of right” in the last sentence of the first subparagraph of paragraph IV of Article 14;
  • Articles 15, 16, 17, 18, 19, 22, 24, 25, 26, 32, 33, 38, and 45;
  • paragraphs III and IV of Article 47;
  • Articles 48, 50, and 58;
  • 2° of Article 64;
  • Articles 65, 67, 68, 69, and 81.
    Article 2. - Subject to the reservations specified below, the following provisions conform to the Constitution:
  • subject to the reservation set out in paragraph 63, paragraph II of Article 14 of the law referred for review;
  • subject to the reservation set out in paragraph 155, the words “of one year” in the first paragraph of Article L. 732-4 of the Code for Entry and Residence of Foreigners and Right of Asylum (CESEDA), the word “two” in the first sentence of the second paragraph of the same article and the words “of one year” in the first paragraph of Article L. 732-5 of the same code, in their formulation resulting from Article 42 of the law referred for review.
    Article 3. - The following provisions conform to the Constitution:
  • the remainder of Article L. 123-1 of the Code for Entry and Residence of Foreigners and Right of Asylum (CESEDA) in its formulation resulting from Article 1 of the law referred for review:
  • paragraphs I and III, the remainder of paragraph IV and paragraph V of Article 14 of the law referred for review;
  • the sixth paragraph of Article L. 631-2 of the Code for Entry and Residence of Foreigners and Right of Asylum (CESEDA), the words “including the deliberate and particularly serious violation of the principles of the Republic set out in Article L. 412-7” appearing in the first paragraph of Article L. 631-3 of the same code and its ninth paragraph, in their formulation resulting from Article 35 of the law referred for review;
  • Article L. 611-3 of the Code for Entry and Residence of Foreigners and Right of Asylum (CESEDA), in its formulation resulting from Article 37 of the law referred for review;
  • the first paragraph of Article L. 412-7 of the Code for Entry and Residence of Foreigners and Right of Asylum (CESEDA), in its formulation resulting from Article 46 of the law referred for review;
  • the first paragraph of Articles L. 551-15 and L. 551-16 of the Code for Entry and Residence of Foreigners and Right of Asylum (CESEDA) in their formulation resulting from Article 66 of the law referred for review;
  • the words “having at least six months’ experience on a panel of the Court” appearing in the first paragraph of Article L. 131-5 of the Code for Entry and Residence of Foreigners and Right of Asylum (CESEDA), and Article L. 131-7 of the same code, in their formulation resulting from Article 70 of the law referred for review;
  • the second paragraph of Article L. 922-3 of the Code for Entry and Residence of Foreigners and Right of Asylum (CESEDA), in its formulation resulting from Article 72 of the law referred for review:
  • the second paragraph of Articles L. 342-6 and L. 743-7 of the Code for Entry and Residence of Foreigners and Right of Asylum (CESEDA) in their formulation resulting from Article 76 of the law referred for review:
  • the words “or, by order of the first presiding judge, in the event of the simultaneous placement of a large number of foreign nationals in a waiting area in view of the constraints of the judicial service”, appearing in the second paragraph of Article L. 342-5 of the Code for Entry and Residence of Foreigners and Right of Asylum (CESEDA), in its formulation resulting from Article 77 of the law referred for review.
    Article 4. - This decision shall be published in the Journal Officiel of the French Republic.
    Ruled by the Constitutional Council in its 24 and 25 January 2024 sessions, with the following members present: Laurent FABIUS, Chairman, Jacqueline GOURAULT, Alain JUPPÉ, Corinne LUQUIENS, Véronique MALBEC, Jacques MÉZARD, François PILLET, Michel PINAULT, and François SÉNERS.
    Published on 25 January 2024.
À voir aussi sur le site : Communiqué de presse, Commentaire, Dossier documentaire, Texte adopté, Saisine par Président de la République, Saisine par Présidente de l'Assemblée nationale, Saisine par 60 députés, Saisine par 60 sénateurs, Législation consolidée, Observations de parlementaires - 1, Observations du Gouvernement, Observations de parlementaires - 2, Contributions extérieures, Dossier législatif AN, Dossier législatif Sénat, Références doctrinales.