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France: Immigration law amendment to turn expulsion of EU nationals into routine

28 March 2012

Following the controversy that resulted from the large-scale eviction of illegal camps and expulsion of Romanian and Bulgarian nationals from France that have largely targeted Roma people since mid-July, the French government is trying to press ahead with proposals to restrict freedom of movement and facilitate expulsions.

On 1 September 2010, the French government submitted an amendment (no. 2400) to the draft immigration law that is undergoing parliamentary scrutiny in order to turn the expulsion EU nationals into a routine practice, adding the possibility of it being carried out when the "foreigner" has not been in the country for three months. The text of the proposal seeks to amend art. 25 of the draft law to include the following provision:

"Art. L. 511-3-1. The competent administrative authority may, through a motivated decision, oblige a national of a European Union member state, of a state that is a party to the European Economic Area, or of the Swiss Confederation, or a member of their family, to leave the territory if it verifies that:

"1. They no longer fulfil any residence right as envisaged in articles L. 121-1, L. 121-3 or L. 121-4-1."

"2. Or that their residence constitutes an abuse of a right."

The two cases that would be deemed to constitute such an abuse are:

"renewing a stay of less than three months for the purpose of staying in the territory when the conditions that must be complied with are no longer fulfilled"

and doing so: "for the essential purpose of benefiting from the social assistance system and particularly the emergency housing mechanism" envisaged by the "code on social action and families".

The explanatory note for the amendment states that it would:

"extend the possibility of adopting the [removal] measure whether people have stayed for less than three months [the new feature], or over three months [the current legal situation]".

Thus, resorting to social services would be interpreted as "abusing" the right of free movement, and other fraudulent behaviour, for example marriages of convenience to extend a person's right of free movement and residence in the EU, would give rise to removal or an order to leave.

Source: Amendment presented by the government, No. 11, 1.9.2010, "Immigration, integration et nationalité (2400)"

Amendments opposing the government's initiative

The SRC (socialist, radical, citizens and diverse left) group submitted amendments (no. 2814) to oppose these developments.

Firstly, it called for the second point, "Or that their residence constitutes an abuse of a right" and the passage that follows it, to be removed. The reason for this is, firstly, that the cases of fraud are clearly specified in the free movement Directive (2004/38/EC) as "in particular white marriages [that is, marriages of convenience] or any other form of union contracted for the sole purpose of benefiting from the right of free movement and residence". Secondly, that the amendment seeks to apply the conditions for stays of over three months before the three-month period has expired. This would contravene the right to free movement and the amendment notes that it is "legally questionable to judge the lawfulness of a stay of less than three months by relying on non-compliance with the criteria for residence of over three months".

It adds that while it is true that EU nationals must not constitute an "unreasonable burden for the social security system", they cannot be required to demonstrate that they have "sufficient means to maintain themselves and the members their families", as is the case for longer periods of residence.

The government's proposal is described as an "amendment against poor people" that seeks to establish free movement as a two-track right, one for rich people who can certify having adequate means, while poor people's freedom of movement would be reduced. This would contravene the "letter and spirit of the Treaty", as well as the principle of freedom of movement, and would be a measure that the European Court of Justice would have to invalidate as it contravenes Community law. Contextualising the amendment, the explanatory text notes that it is a product of the current French-Italian alliance (see below) that is pushing for this kind of measures, whereby the French government is acting prior to the issues being discussed so as to strengthen its hand by the measures being a "fait accompli" (something that has already been done).

Other measures that the SRC group opposes include that of enabling removal beyond the border of people "if the foreigner is liable to undergo criminal prosecution" (art. 49 of the draft law). The group deems it "inconceivable" for foreigners to be accompanied to the border for crimes that have not been ascertained because they are merely "liable" to be prosecuted. Attempts to establish a threat to public order in a way that is too strict is deemed "undesirable", and the "inclusion" of "exploitation of begging" appears to be a criteria to justify removal that is "excessive and may potentially entail abuses targeting certain communities such as Roma people".

Finally, the reference to a "public service of a social nature such as emergency housing" in art. 17 of the draft law is criticised by the SRC group, which argues that the notion of becoming an excessive burden for the social security system should not be extended to emergency housing. The explanation also notes that there is a preliminary remark (no. 16) in directive 38/2004 whereby the removal measures provided for should not be enacted until people become an excessive burden for the social insurance system of the host country, which stresses that "a removal measure cannot be an automatic consequence of requesting social assistance".

Source:
Amendment by the SRC group, "Projet de loi relatif à l'immigration, l'integration et la nationalité", no. 2814