Visiting Mayotte, Eric Ciotti targeted illegal immigration, “a scourge to fight”, he repeated on Twitter. He undertook, this weekend, in the event of victory of Valérie Pécresse, candidate Les Républicains in the presidential election, to “have the law of the soil removed” in the 101st French department.
On this island in the Indian Ocean, located in the Comoros archipelago, “48% of the 256,500 inhabitants are foreigners, including 95% Comorians”, he was indignant in a speech at a public meeting in Bandrélé. . A situation that is “no longer acceptable”, according to him.
During a meeting on March 12 with residents, the deputy of the Alpes-Maritimes, in remarks reported by The Journal of Mayotte, had assured to advocate “the return to the right of blood in Mayotte. Not only should jus soli not apply to irregular arrivals on the territory, but we must stop issuing visas to countries that do not accept the return of their nationals”.
FAKE OFF
If the figures mentioned by Eric Ciotti are the right ones – he is based on an INSEE study of 2019 –, his proposal perplexes Pauline Le Liard, project manager at Cimade Mayotte, an association for the defense of the rights of refugees and migrants. “What surprises us is that Mr. Ciotti is not aware that soli does not exist in France,” she explains. Being born in Paris or Mamoudzou does not confer French nationality. »
“Legally, what is called jus soli is the acquisition of nationality at birth by the mere fact of being born in a given territory, explains Jules Lepoutre, professor of public law at the University of Corsica and specialized in nationality law and immigration law. Very few States apply this jus soli in this extended formula, the main one being the United States. »
Nationality is acquired by birth and residence
In France, what is commonly called jus soli corresponds to an acquisition of nationality by birth and by residence in the country. Concretely, a child born in France of foreign parents can acquire nationality automatically at the age of majority if he has lived for five years in the country since he was 11 years old. He can also acquire it at the request of his parents between the ages of 13 and 16 or at his request from the age of 16, if the residence criteria are met. There is also the double jus soli: if a parent born in France gives birth to a child in France, this child will be French.
“French-style ius soli, which, at best, makes it possible to obtain nationality thirteen years after the birth of the child, cannot really have an effect of attraction on migration”, considers Jules Lepoutre. “It’s a kind of fantasy to believe that the foreigner would come to France, give birth to a child and himself acquire a right of residence linked to the nationality of this child, adds Marjane Ghaem, lawyer in foreigners law. There is no such thing. »
“A very big breach of the principle of equality”
The French jus soli has already been modified specifically in Mayotte with the Asylum and Immigration Law in 2018. It adds a brake on this territory: it is necessary that at the time of birth, one of the parents resides in France on a regular and uninterrupted basis for more than three months. “It’s a very big break with the principle of equality, underlines Jules Lepoutre. One does not become French in the same way according to the place on the French territory where one is born. »
Could abolishing the right to the French soil be possible in Mayotte by virtue of this first breach? In 2018, the Constitutional Council had validated this modification based on article 73 of the Constitution, which makes it possible to adapt a law overseas due to “particular characteristics and constraints”, here irregular immigration.
A question of constitutionality
But, for Jules Lepoutre, a distinction must be made between the right of the soil and the conditions for exercising the right of the soil. Clearly, it would be possible to act on the regularity of the stay of parents, the automatic or voluntary acquisition of nationality at 18 or the possibility of advance declaration, for example. “A priori, the Constitutional Council does not see any inconvenience there, underlines the professor of public law. We can, in detail, change the rules. »
But abolishing the French ius soli is a constitutional matter. “When we read the case law and the debates between the constitutional judges, we find a certain number of arguments which plead to consider that the right of the ground is a fundamental principle recognized by the laws of the Republic”, he comments. , that is to say a principle “repeatedly fixed in the republican laws and which, by this constancy, acquires a constitutional value”.
“Counterproductive measures”
“Removing this would violate our constitutional order, believes Jules Lepoutre, who considers that such a proposal would not be validated by the Constitutional Council. Article 73 would no longer apply, because we would no longer want to adapt the law, but to undermine the constitution. »
For her part, Pauline Le Liard sees in this proposal a one-upmanship on the law of the soil. “It won’t solve anything,” adds the project manager at Cimade Mayotte, also referring to the hardening wanted by the government, which wants to extend regular residence before birth to one year. “These are measures that are counter-productive in addition to being discriminatory,” she continues. This does not prevent people, who have often been established for several years, from being on the territory. It will not change the historical circulation between the islands of the Comoros archipelago. On the contrary, it exacerbates all the inequalities and precariously affects the youth of Mayotte. »