Annual Policy Report 2011

Transcription

1 Annual Policy Report 2011 Drafted by the French National Contact Point of The European Migration Network May 2012 The European Migration Network was set up by Council decision 2008/381/EC, and is financially supported by the European Union. 1

2 TABLE OF CONTENTS SUMMARY INTRODUCTION Methodology Definitions GENERAL STRUCTURE OF POLITICAL AND LEGAL SYSTEM General structure of the political system and institutional context General structure of the legal system GENERAL DEVELOPMENTS RELEVANT TO ASYLUM AND MIGRATION General political developments Policy and legislative developments in The law of 16 June 2011 on immigration, integration and nationality Debates engendered by the policy followed in LEGAL IMMIGRATION AND INTEGRATION Economic migration The general context before the reference period The policy followed in The policy followed in applying EU principles Family migration The general context before the reference period The policy followed in Other legal migration Integration The general context before the reference period The policy followed in Citizenship and Naturalisation The general context before the reference period The policy followed in IRREGULAR MIGRATION AND RETURN Irregular migration The general context before the reference period The policy followed in Return Actions against human trafficking

3 6. BORDER CONTROL Control and surveillance at external borders The general context before the reference period The policy followed in The policy followed in applying EU principles Cooperation with respect to border control INTERNATIONAL PROTECTION, INCLUDING ASYLUM The general context before the reference period The policy followed in The policy followed in applying EU principles International protection Solidarity with Member States faced with a massive influx of asylum seekers UNACCOMPANIED MINORS GLOBAL APPROACH TO MIGRATION Concerted management agreements for migration flows Mobility Partnerships IMPLEMENTATION OF EU LEGISLATION...46 ANNEX TO NATIONAL ANNUAL POLICY REPORT 2011 ON COMMITMENTS IN THE EUROPEAN PACT AND STOCKHOLM PROGRAMME

4 SUMMARY Following the ministerial reshuffle of 14 November 2010, the Ministry for Immigration was dissolved and its responsibilities were taken over by the Ministry of the Interior, Overseas France, Local and Regional Authorities and Immigration 1. Decree of 25 November 2010 on the attributes of the Ministry of the Interior, Overseas France, Local and Regional Authorities and Immigration, restated all the attributes of the former Ministry for Immigration within the remit of Ministry of the Interior 2. At the legislative level, it is important to indicate the law of 16 June 2011 on immigration, integration and nationality. This: strengthens the policy on integration and on access to nationality; creates new tools for promoting economic migration and for the fight against irregular migration and the employment of foreigners without residence permits, by transposing three European directives; increases the effectiveness of the fight against irregular migration by reforming procedures and the legal proceedings for the removal of illegally staying thirdcountry nationals, in particular by drawing upon the report of the commission chaired by Pierre Mazeaud: Pour une politique des migrations transparente, simple et solidaire For a transparent, simple, and supportive migration policy, presented on 11 July 2008 to the Ministry for Immigration, Integration, National Identity and Solidarity Development. Economic migration aims at addressing shortages in professions that require a certain qualification, as well as in professions that suffer from obvious and ongoing shortages of manpower. The economic situation in Europe in general, and in France in particular, with the consequent increase in the rate of unemployment, has called for a restrictive review of professions open to third-country nationals by derogations from common rules. Family migration did not change significantly in 2011, whether in respect of principles, or of the policy followed, or of regulation. Integration is a priority for French immigration policy. The government s policy seeks to be balanced, firm, and fair, ensuring both control of immigration and actual integration of migrants. In that regard, there has been a rise in the power of new measures in the Contrat d Accueil et d Intégration (CAI Reception and Integration Contract). The law on immigration, integration and nationality mentioned above aims, in particular, to take better account of integration efforts for access to French nationality. The fight against irregular migration, especially against those who make money out of it, is a government priority. Given its multiple aspects and its complexity, it requires a global approach to migration, in a partnership between Member States of the Schengen Area, the European Union, and the main countries of origin and transit countries. It also requires coordination between stakeholders and centralisation of operational information. 1 Following the presidential elections of 6 May 2012, the Ministry of Interior took over the competences related to immigration, integration and asylum. 2 Cf. ditto, see previous note 4

5 The Office Central pour la Répression de l Immigration Irrégulière et de l'emploi des Étrangers sans Titre (OCRIEST Central Office for the Fight against Irregular migration and the Employment of illegally staying third-country nationals) is tasked with facilitating and coordinating, both nationally and internationally, the fight against organised irregular migration networks, the fight against structured networks for the employment of illegally staying thirdcountry nationals, the fight against document fraud networks, and the analysis of irregular migration pressure on French soil. It is the contact point for matters of international cooperation. As regards border control, it is important to point out that as of 31 December 2011, 170 consulates (of the 192 consulates authorised to issue visas) have operational equipment installed at their visa-issuing posts in order to collect biometric data. With regard to asylum, France strongly supports the setting up of a common protection area that should, in the short term, lead to a genuine common European asylum system. The objective of bringing closer together the legislation and practices of Member States, whilst ensuring a high level of protection, lies at the heart of building a Europe of asylum. The French position has been re-stated on several occasions at Justice and Home Affairs (JHA) Council meetings, as well as in the common Franco-German declaration presented at the ministerial conference on asylum that was held on 14 September in Brussels, and made official at the JHA Council meeting of 7 October Asylum policy was not amended in Finally, the international dimension of migration policy is significant. The effectiveness of migration flow management policy is all the greater if source countries and transit countries are associated with them. After taking concrete form for the first time via the agreement signed on 23 September 2006 with Senegal, the concept of concerted management for migration flows and solidarity development has become commonplace to the point that the agreements arising from it now constitute fully-fledged instruments of France s migration policy and are slowly becoming an international reference. Thus, France has signed agreements with Benin, Burkina Faso, Cameroon, Cape Verde, Congo-Brazzaville, Gabon, Mauritius, Lebanon, Macedonia, Montenegro, Russia, Senegal, Serbia and Tunisia. Negotiations are in hand with Algeria, a main source country, as well as with Mali and China. 5

6 1. INTRODUCTION This report presents the situation of structures and of immigration and asylum policy as of December To that end, it has been necessary to provide some background to these elements in order to present them in their context and make them comprehensible to the reader. 1.1 Methodology The figures provided, in particular in the Annex, are the latest available. It is important to highlight the fact that they are not definitive figures, especially in respect of first residence permits issued. This information comes directly from the Secrétariat Général à l Immigration et l Intégration (General Secretariat for Immigration and Integration), as well as from bodies tasked with conducting French policy, such as the Office Français de Protection des Réfugiés et Apatrides (OFPRA French Office for the Protection of Refugees and Stateless Persons), or the Direction Générale de la Police Nationale (National Police General Directorate), in particular the Direction Centrale de la Police Aux Frontières (DCPAF Border Police Central Directorate). It also comes from the computer program used to issue residence permits (AGDREF). 1.2 Definitions The original French terms used in this report correspond to the official terminology of French government departments. 2. GENERAL STRUCTURE OF POLITICAL AND LEGAL SYSTEM 2.1 General structure of the political system and institutional context Government structures and institutional stakeholders did not change in Consequently, reference should be made to the 2010 political report. 2.2 General structure of the legal system This is the entirety of legal rules relating to the entry and residence on French territory of natural persons of foreign nationality. Legislation has moved on with the passing of law of 16 June 2011 on immigration, integration and nationality, which will be examined below. 6

7 3. GENERAL DEVELOPMENTS RELEVANT TO ASYLUM AND MIGRATION 3.1 General political developments Since 2007, the government, under the authority of the President of the Republic, has wished to give a new direction to immigration policy. This must increasingly meet the needs of the national economy and focus on the integration of migrants in France. The law of 20 November 2007 added to the reforms initiated by the laws of 26 November 2003 and 24 July In particular, it enabled better management of family reunification (foreigners who wish to bring their spouses / partners and children to France must henceforth show that they have a level of income that is appropriate for the size of the family), whilst developing actions relating to integration (pre-cai, assessing level of French and knowledge of the values of the Republic before entry into France, and Reception and Integration Contract for the family). In addition, the 2007 law introduced to Article L of the CESEDA (Code de l Entrée et de Séjour des Étrangers et du Droit d Asile Code of Entry and Residence for Foreigners and of the Right to Asylum) relating to exceptional grant of residence, an innovative option that consists of issuing an Employee residence permit to a former irregular migrant, whereas before, only a Private and Family Life residence permit was available. Guidelines set in 2011 sought to: - better control economic migration in order to respond to the new context due to the economic slowdown, in particular by drawing up a new list of professions that are hard to recruit for, and that are open to recruitment on a derogative basis; - further strengthen the effectiveness of and results of the policy on removal, which was enabled by the law of 16 June Policy and legislative developments in The law of 16 June 2011 on immigration, integration and nationality This law has adapted French legislation to European directives and to new challenges to be met in the context of immigration policy. The law of 16 June 2011 aims in particular at transposing three European directives: - Directive 2009/52/EC of the European Parliament and of the Council of 18 June 2009 on sanctions and measures against employers of illegally-staying third-country nationals, called the Sanctions Directive - Directive 2009/50/EC of the Council of 25 May 2009 on the conditions of entry and residence for third-country nationals for the purposes of highly-qualified employment, called the Blue Card Directive 7

8 - Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally-staying third-country nationals called the Return Directive 3. The law also aims at implementing various proposals arising from the work done in 2008 by the commission chaired by Pierre Mazeaud, former chairman of the Constitutional Council, in the report entitled Pour une politique des migrations transparente, simple et solidaire (October 2008). Furthermore, the law: - draws conclusions from the debates on national identity by introducing measures on integration and nationality; - modifies the terms of access to residence and removal in respect of sick foreigners; - introduces sanctions against grey marriages (abusive sham marriages) linked to emotional fraud on the part of foreigners married to French nationals; - provides for immunity from prosecution in cases of humanitarian support Measures concerning residence Encourage immigration by highly-qualified workers - The EU Blue Card: the law of 16 June 2011 transposes Directive 2009/50/EC of the Council of 25 May 2009, which creates an EU blue card for the benefit of third-country nationals who occupy a highly-qualified post. This document is created along with measures aimed at boosting its attractiveness: professional mobility of those workers within the European Union (EU) is encouraged, as well as the entry and residence of their family members. - Enhancing the attractiveness of certain residence permits: The endorsement on the Scientist temporary residence permit becomes Scientist / Researcher, in accordance with the stipulation of Directive 2005/71/EC of 12 October The conditions for issuing the permit remain unchanged. The spouse / partner of a foreigner who holds a Scientist / Researcher permit is automatically entitled to the Private and Family Life temporary residence permit. It is automatically renewed during the remaining period of validity of the Scientist / Researcher permit. Furthermore, the law extends the same measure to the adult children of the holder. The conditions for issuing the Skills and Talents residence permit have been reviewed in order to enhance its attractiveness. The remit of the Commission Nationale des Compétences et des Talents (National Commission on Skills and Talents) has been 3 To that end, see the EUCJ judgment of 28 April 2011 (n. C-61/11 PPU EL DRIDI, alias Soufi Karim), which states that the directive must be interpreted as opposing a regulation of a Member State, which provides for a term of imprisonment to be imposed on an irregular third-country national solely because that third-country national has remained on that Member State s territory without justification and in violation of an order to leave that Member State s territory. Transposing the Return Directive has led to profound modification of the CESEDA, in particular by leading to a re-organisation of the removal procedure, and by setting a new framework for detention in a waiting zone and placement in administrative detention. 8

9 delegalised. Henceforth, it is regulatory authority that defines the conditions for assessing the criteria set for the residence permit to be issued. Specific provisions applicable to nationals of countries in the area of priority solidarity have also been repealed. Former article L of the CESEDA provided that when the holder of a Skills and Talents residence permit was a national of a country in the priority solidarity zone, she / he was required during the permit s period of validity to help with economic cooperation or investment work defined by France with the country of her / his nationality. Compliance with that obligation was taken into account at the first renewal of the permit. That provision was felt to be overly restrictive and was repealed. The law brings the duration of validity of a residence permit issued to the spouse / partner or adult children of the holder of a Skills and Talents residence permit into line with the duration of validity of the main holder s permit (it had been restricted to one year until now). The conditions for the automatic issue of a temporary residence permit to the spouses / partners and children of the holder of an Employee on Mission temporary residence permit have been modified. It is no longer issued to a foreign national who is an Employee on Mission living in France for an uninterrupted period of six months, but as soon as the contract of employment of the employee on mission provides for an uninterrupted stay of over six months in France. That arrangement should make family reunification easier for employees on mission, by making it available immediately if the foreigner provides the contract of employment containing the requisite residence clause. The spouse / partner aged at least 18 of a foreigner who holds a long-term residence permit issued on the grounds of exceptional economic contribution to France is automatically entitled to the same long-term residence permit. Conditions for sick people to obtain residence In its new draft, the CESEDA provides for the issue of a temporary residence permit to a foreigner who is habitually resident in France, and whose health requires medical care provided without which the foreigner may suffer exceptionally serious consequences, subject to the absence of appropriate treatment in her / his country of origin, except in cases of exceptional humanitarian circumstances assessed by the administrative authority following an opinion given by the Director General of the Regional Health Agency. Exceptional grant of residence Changes to the provisions relating to an exceptional grant of residence aim at two objectives: to clarify the text of article L of the CESEDA relating to exceptional grant of residence; to provide for a new category of grant of residence for young people aged between 16 and 18 who have been placed in the care of Child Welfare (Aide Sociale à l Enfance =ASE). - The law of 16 June 2011 amends article L of the CESEDA relating to exceptional grant of residence. In the case of issuing the Employee or Temporary Worker temporary residence permit, it removes the text that refers to the lists of professions with recruitment problems. That reference had the effect of 9

10 restricting the field of application of exceptional grant of residence based on employment. - Young people aged between 16 and 18, who are placed in the care of Child Welfare: the right to live in France of unaccompanied minors depends on their age when they arrive on French territory. Until now, the law did not contain any special measure except for young people aged no more than 16 who are placed in care. Henceforth, on an exceptional basis and unless that person s presence constitutes a danger to public order, the temporary Employee or Temporary Worker residence permit can be issued, in the year following the person s 18 th birthday, to a foreigner who has been entrusted to Child Welfare between the ages of 16 and 18, and who is able² to show that she / he has followed a training programme that aims at providing her / him with a professional qualification. The spouses / partners of French nationals The spouses / partners of French nationals are essentially affected by technical arrangements. - Henceforth, renewal of the Private and Family Life residence permit issued to the spouse / partner of a French national is subject to the relationship subsisting except in the case of the death of the French national. - The law of 16 June 2011 stipulates that the years of residence based on a Private and Family Life temporary residence permit withdrawn by the administrative authority because of a marriage for the sole purpose of obtaining a residence permit or French nationality shall not be taken into consideration for the purposes of obtaining the longterm residence permit. - A foreigner married to a French national may be granted a long-term residence permit after a period of three years from the date of marriage. To the existing conditions (the relationship has not ceased to exist since the marriage, the spouse has retained French nationality, and - for a marriage contracted abroad it has been entered into the civil status registers of France), the law adds one more condition: the foreign spouse must reside in France on a regular basis. Stay of less than three months by nationals of EU Member States Taking up a measure that appeared in the regulatory section of the CESEDA, legislators have passed into law an article setting out the conditions for residence of nationals of EU Member States for a maximum period of three months: provision is made for a right to residence for nationals of EU Member States or for persons treated on the same basis as such nationals (European Economic Area, Switzerland), as well as their family members, for the first three months following their arrival in France, provided that they do not become an unreasonable burden on the French welfare system. Strengthen the requirement for integration The law of 16 June 2011 follows on from preceding immigration legislation that made integration a condition for issuing and renewing residence permits and reinforces the necessity for integration throuhg the following criteria: 10

11 - Assessing compliance with the requirement for integration: it is no longer the case that at the first renewal of the temporary residence permit, the prefect takes into consideration the foreigner s compliance with the Reception and Integration Contract (CAI). That assessment will henceforth be made when the residence permit is renewed during the period of enforcement of the contract, or at the first renewal following such enforcement. That measure also applies to a family CAI. - Compliance with training: the CESEDA has been redrafted so as to set out the criteria according to which compliance with the stipulations of the contrat d accueil et d intégration (CAI) entered into by the foreigner must be assessed in order for newlyarrived migrants to better understand its objectives. - Training content: civics training is enhanced by a presentation of the place of France in Europe. - Issuing a long-term residence permit: it is stipulated that the level of integration be assessed before a long-term residence permit is granted. The prefect takes account of compliance with the CAI when it has been entered into. That stipulation means that the requirement for compliance with the CAI cannot be applied to foreigners who arrived before the CAI came into use on 1 st January 2007, and who did not sign it, since it was not compulsory Measures concerning removal Unification of removal measures and affirmation of the right to voluntary return - The obligation de quitter le territoire français (OQTF Obligation to Leave French Territory) is henceforth the sole removal measure applicable to persons who are irregular migrants; the order of escort to the border has been discontinued. The options for automatic enforcement are more flexible and pragmatic. - The period for voluntary departure is set at 30 days. It can be extended on an exceptional basis in order to take account of the specifics of an individual situation. Automatic enforcement is possible at the end of the period granted for voluntary departure. The period for voluntary departure can be refused in cases of threat to public order, or when the residence permit application has been rejected on the grounds of a manifestly unfounded or fraudulent application, as well as in the case of a risk of absconding as assessed on the basis of criteria introduced into the CESEDA. The law reserves the option for automatic enforcement during the period granted for voluntary departure, e.g. if it becomes apparent during that period that the person concerned has destroyed her / his travel documents. Creation of a prohibition on return This measure transposes the Return Directive and strengthens the effectiveness of removal measures: - Obligations to Leave French Territory (OQTF) are set in a long-lasting process; - It includes a European dimension in that it applies across the territories of all Member States. 11

12 Its field of application and its duration are defined and limited, with an option for derogation when considering humanitarian cases, and an abrogation measure that takes account, in particular, of return made voluntarily. The prohibition on return can be added to any OQTF, including one that gives rise to a period granted for voluntary departure. In accordance with the Directive, it is applicable when the OQTF does not grant a period for departure and when the OQTF has not been complied with. The law sets maximum periods from the time of notification of the OQTF: a maximum of 2 years for an OQTF with a period granted for departure and in case of the period for departure being exceeded, a maximum of 3 years from notification for an OQTF without a period granted for departure. The prohibition on return can be extended by a maximum of 2 years in cases of remaining or returning to the territory when the measure is in force. The measure has effect across the whole European Union (mechanism for the mutual recognition of removal measures registration with the SIS (Schengen Information System); the law provides for the foreigner to be informed that the prohibition on return has been registered with the SIS). The abrogation measure follows the principles of the removal measure. However, except for a reason relating to public order, the prohibition is removed when the foreigner complies with the period granted for voluntary departure. Reforming detention - The law organises a check on the legality of the decision to detain made by the administrative judge ruling alone in an accelerated proceeding. - The duration of being held in detention under a prefect s decision is increased to 5 days (as opposed to 48 hours previously), in order to allow the administrative judge to rule before the judicial judge is called on for the purposes of extending detention at the end of the 5-day period. - The maximum period of detention has been increased from 32 to 45 days, so as to take account of the high rate of failure of removals due to consular laissez-passer documents not being issued within the detention period. By derogation, a foreigner who has been removed or who is banned from the territory for acts of terrorism shall have her / his detention extended by one month by the juge des libertés et de la détention (JLD magistrate for custody and release), renewable up to a maximum of 6 months. Alternatives to detention Reform of detention is linked to refocusing the right to return imposed by the transposition of the directive, by which the need for detention is assessed on a case-by-case basis due to the lack of less coercive alternative measures for preventing the risk of absconding or a threat to public order. House arrest as an alternative to detention marks a profound change in the right to detain. This is a genuine alternative measure for the period required for departure, and for which the 12

13 administrative authority must exercise every care. Thus, it triggers an accelerated judicial procedure in conditions that are identical to those for a person placed in detention. The maximum duration of house arrest is 45 days. It can be renewed once. All cases of a person being placed in detention are subject to prior examination of the option to apply this alternative measure, which may be refused in cases of threat to public order, risk of absconding from the removal measure, or the lack of guarantees of appearing before the authorities. In the case of foreigners who are the parents of minors and who cannot be brought under simple house arrest, a measure involving house arrest with electronic tagging is proposed. This is a measure that aims to reduce the detention of families. In this context, the foreigner s agreement must be obtained. Guarantee of removal if it is impossible to enforce within the period granted for detention and its alternative The law has created a category of house arrest in cases where removal is impossible in the short to medium term, where there is a reasonable prospect of removal beyond the period granted for detention or its alternative. This is a consequence of transposing the Return Directive, which imposes a measure that aims at ensuring a minimum level of legal safety for the person affected by a removal measure and who cannot comply with that measure in the short to medium term for reasons that lie outside that person s control. It is entirely separate from house arrest as an alternative to detention: it is not linked to preparation for departure in the short term, but guarantees the foreigner a right to remain on the territory until removal becomes possible. It can be combined with permission to work, which is to be considered on a case-by-case basis. Clarification of the law relating to waiting zones The discovery of a group of at least 10 foreigners outside a border crossing point, in one place or in a number of places that are at least 10 kilometres apart, permits the setting up of a waiting zone from the place(s) in which the persons concerned were discovered to the nearest border crossing point. In addition, in order to limit proceedings initiated as a matter of pure form, the law, acting in compliance with constitutional and conventional requirements and in line with the jurisprudence of the Supreme Court, sets out the conditions for rights to be exercised by persons kept in a waiting zone, so that the judge can take account of certain objective constraints relating to the need to deal with a large number of individual cases. Explicitness of immunity from prosecution for persons performing a humanitarian action for foreigners in an irregular situation Article L of the CESEDA has been clarified by law in order to protect from proceedings those who provide urgent humanitarian help to irregular migrants. This article has been updated on the basis of jurisprudence on the notion of need Measures concerning illegal employment 13

14 As mentioned above, law of 16 June 2011 particularly ensures the transposition of Directive 2009/52/EC of 18 June 2009 that sets minimum standards on sanctions and measures against employers of illegally staying third-country nationals, called the Employer Sanctions Directive. As a general rule, the Directive was more demanding and more favourable than existing French law before the reform for sanctions incurred and the financial rights of the foreigner: it improves workers rights and strengthens employers obligations. The law of 16 June 2011 goes beyond transposing the Directive. It includes other measures aimed, in particular, at preventing recourse to illegal employment. Thus, it harmonises the prerogatives of inspection officers regardless of the type of illegal employment offence committed. It also sets up a discharge from liability for employers in good faith. Strengthening administrative sanctions against employers who employ irregular migrants The new administrative sanctions against employers of irregular migrants complete the criminal sanctions that are already in existence, and should allow the prefectural authority to react swiftly upon observing situations of employment of irregular migrants. The sanctions include: - non-payment for a maximum period of five years of public assistance granted, or repayment of all or part of assistance received in the last twelve months preceding the report of illegal employment; - the temporary administrative closure of the business where the offence has been committed. The temporary closure decision is taken on a temporary basis for a maximum period of 3 months, taking account of the repeated occurrence and the seriousness of the facts observed, as well as the proportion of employees concerned. It can be combined with preventive seizure of the professional material of the offenders; - exclusion from public contracts: the administrative authority can also order, by means of a justified decision taken against the person having committed the offence of illegal employment (concealed working, payment in kind, illicit provision of labour, employing an irregular migrant), exclusion from administrative contracts for a maximum of six months. Exclusion from public contracts was contained by the Employment Code as a penal sanction. This is an additional sanction incurred by natural persons for a maximum of five years, and by legal persons for an indefinite period or for five years. Strengthening foreigners rights In accordance with the requirements of article 6 of the Directive, the rights of irregular migrants are strengthened: - employees are entitled to payment of salary and of accessory sums, in accordance with legal conventional provisions, and contractual stipulations that are applicable to their employment, with deduction of sums previously received in relation to the 14

15 period considered. Measures are in place to ensure the recovery of sums due by employers to illegal immigrants; - a presumption of duration of the work relationship is added: if there is no proof to the contrary, the sums owed to employees correspond to a work relationship that is presumed to be of three months; - where appropriate, foreigners have the right to have their employers pay all the costs of sending unpaid salaries to the countries from which those foreigners have made voluntary departures, or to which they have been escorted Provisions concerning asylum The law of 16 June 2011 does not fundamentally call into question the asylum regime, and does not, in that matter, contain anything other than provisions that are relatively secondary. - Legal aid for appearing before the CNDA (Cour Nationale du Droit d Asile National Asylum Court) is henceforth more closely managed: exclusion of a request for legal aid in the context of an appeal against an OFPRA decision rejecting a request for re-examination, when the appellant has already been heard by OFPRA and by the CNDA on the occasion of a previous request, assisted by a lawyer appointed under the legal aid system. - The notion of an asylum application being founded on deliberate fraud is clarified: an asylum application founded on deliberate fraud is an application made by a foreigner who presents false indications, conceals information concerning her / his identity, nationality, or means of entry into France, in order to mislead the authorities. - Remote hearings: the new article L of the CESEDA, amended by the law of 26 June 2011, stipulates that for the proper administration of justice, the CNDA audience chamber can be linked directly to an audience chamber specially set up for the purpose, open to the public and situated on the Ministry of Justice premises that are most easily accessible to the applicant. That should enable the CNDA to avoid extra-jurisdictional hearings overseas and to keep down the costs of postponed hearings due to both geographic distance of appellants and frequent unavailability of lawyers. - A request to the Council of State for an opinion on proceedings: as was already the case for administrative courts and administrative appeal courts, the CNDA will henceforth, by means of a decision that is not subject to appeal, send the case file to the Council of State that will examine the matter raised within three months. Amendments made in 2011 to the list of safe countries of origin under the meaning of article L (2 ) shall be referred to below, in Chapter 7 on asylum Provisions concerning nationality 15

16 Legislators have made only partial amendments to nationality law. The additions stress the assimilation of foreigners who apply for nationality. - Assimilation and the Charter of rights and responsibilities of French nationals: persons applying for French nationality must show that they have sufficient knowledge which will be assessed on an individual basis of French language, history, culture and society. However, with regard to the essential principles and values of the Republic, legislators replaced the straightforward notion of knowledge with that of belonging. To strengthen the verification of assimilation linked to that belonging, the person concerned must sign a charter of rights and responsibilities of French nationals. The charter must be handed to the naturalised citizen during the ceremony. Furthermore, in relation to the requirement of assimilation, effective knowledge of French on the part of the spouse / partner of a French national will henceforth be subject to assessment. - Reduction in the trial period of naturalisation: the law of 16 June 2011 enables the trial period of naturalisation to be reduced to two years for foreigners who show an exceptional pathway to integration, assessed on the basis of actions carried out or actions performed pertaining to civics, science, economy, culture, or sport. - Indication of nationalities retained: the law adds a condition that must be met by the person upon acquiring French nationality: she / he must indicate the nationality / nationalities that she / he already holds and whether she / he renounces to it / them Debates engendered by the policy followed in 2011 Concerning the debates in French society on the subject of immigration policy, it is important to mention those prompted by the circular of 31 May 2011 from the ministers responsible for immigration, employment and higher education 4. In particular, the circular asked prefects to carry out a rigorous examination of residence applications from foreigners able to work in France following their studies and subject to certain conditions. The aim was to avoid abuse. In order to clarify the criteria and make the circular more flexible, a new one was drafted on 12 January 2012; it specified that foreign students who were able to demonstrate attainment of a Master s or equivalent degree will benefit from an autorisation provisoire de séjour (APS temporary residence authorisation) of six months from the date of the relevant exam commission. The text was going further by granting residence permits to foreign students who obtained employment or a promise of recruitment before their degree is issued. This was called for, in particular, by the vice-chancellors of universities and grandes écoles. 4. LEGAL IMMIGRATION AND INTEGRATION 4 Following the presidential election of 6 May 2012, the circular has been repealed on May 31, 2012 and replaced by a new one. It aims at ensuring equal treatment within the territory, facilitating administrative procedures for students and providing a rapid response to their requests for changes of status. 16

17 4.1 Economic migration The general context before the reference period The guidelines put in place, in particular, for the provisions of the law of 24 July 2006 on immigration and integration consisted of making the rules on economic migration more flexible, in particular those concerning highly-qualified workers. Several instruments were put in place to that end, notably: redefining the conditions for issuing a temporary residence permit authorising the pursuit of a professional activity to foreigners who hold a duly endorsed contract of employment. Two types of residence permit were created: the Employee residence permit for an activity carried out over a period of twelve months or longer, and the Temporary Worker permit when the activity performed lasts less than twelve months. creating three types of 3-year permits: the Skills and Talents permit, aimed at highly-qualified professionals; the Employee on Mission permit, for employees on secondment within a group or to a company in France that belongs to the same group; and the Seasonal Worker permit, which enables seasonal workers who undertake to maintain their habitual residence outside France to carry out seasonal work with an aggregate duration not exceeding six months per year. The Skills and Talents and Employee on Mission residence permits, through the conditions attached to them, aim at promoting the arrival of foreigners with a level of qualification that guarantees successful integration in the job market and a significant contribution to the French economy, whilst respecting the objectives of solidarity development. They also meet structural economic changes where the job market is becoming global and consequently resorts to recruiting staff of all origins albeit by rigorous selection. Finally, they ease economic migration flows by enabling the holders to travel regularly to France without having to undergo an annual administrative procedure. The economic downturn has been partially responsible for calling this flexibility into question The policy followed in Respond to the recruitment needs of certain economic sectors by means of a new list of professions with ongoing recruitment problems By means of a decision made on 11 August 2011 and published in the Journal officiel de la République française (Official Gazette of the French Republic) on 12 August 2011, the Minister of Labour, Employment and Health, and the Minister of the Interior, Overseas France, Local and Regional Authorities and Immigration, amended the list of professions open to nationals of countries other than European Union Member States, European Economic Area Member State and the Swiss Confederation. The list, drawn up for mainland France, includes fourteen families of professions 5 for which the recruitment procedure does not require a prior search for candidates on French territory. Thus, if the profession in question appears on this list, the job market situation is not taken into account when an application is made for permission to work. 5 The list of professions with ongoing recruitment problems included 30 professions in 2008 and just 14 in

18 The list of professions experiencing recruitment difficulties were thus updated and set out in a decision dated 18 January This new legal instrument is the result of consideration given to the relevance of the professions listed in the previous decision. It appeared that the list drawn up in 2008 was no longer tailored to current economic reality. After consultation with prefectures and social partners, a list limited to fourteen professions (in specialised qualifications for which the resident labour pool is not sufficient), was the subject of the decision dated 11 August 2011, in order to meet the needs of the French economy. Amongst the professions that appear in the new list 6 are e-consultancy, auditors and accounting control, information systems engineers and various technical occupations involving woodwork and glass transformation. Furthermore, professionals connected to the sectors of chemical production, pharmaceuticals and mechanical engineering products are always said to be with ongoing recruitment problems. On the other hand, restrictions are imposed on the construction and public works sector as well as the IT sector. In application of new guidelines relating to economic migration aiming at better control of the arrangement, the circular of 31 May 2011 provided a reminder for the services concerned (visa offices in consulates, foreigners offices in prefectures, foreign manpower offices) of the rules that are applicable to foreigners who wish to carry out a salaried professional activity in France. In particular, attention was drawn to improved consideration being given by employers to the labour pool made up of French nationals, nationals of EU Member States and foreigners who are legally present on French soil. Those various reminders all aim at avoiding misuse of procedures caused by the high attractiveness of the territory and the pro-active policy followed in the field of economic migration. However, this circular was amended in respect of applications for a change of status of students at Master s degree level, by the circular dated 12 January 2012 (see above: ) The procedure for changing the status of foreign students In application of new guidelines relating to economic migration that aim at better control of the arrangement, the circular dated 31 May provides a reminder for the services concerned (visa offices in consulates, foreigners offices in prefectures, foreign manpower offices) of the rules that are applicable to foreigners who wish to carry out a salaried professional activity in France, thus of the conditions for issuing work permits to foreign nationals. In this context, it refers above all to the examination of requests for a change of status made by foreign students who are not EU nationals. According to the circular, the change-of-status procedure (students requesting a residence permit for professional reasons) must be subjected to in-depth scrutiny. The exception provided for students who request a temporary residence permit in the context of a job search must be strictly limited in its application. The fact of having been a resident whilst a student ( ) can not be considered as a reason for not examining in depth the procedure for issuing a work permit. 6 For details of the 14 professions experiencing recruitment problems, please click on: 7 Following the presidential election of 6 May 2012, the circular has been repealed on May 31, 2012 and replaced by a new one. It aims at ensuring equal treatment within the territory, facilitating administrative procedures for students and providing a rapid response to their requests for changes of status. 18

19 However, the change-of-status procedure remains a possibility, on the same basis as previously: Except for certain categories of foreigners (young professionals, persons on placement, holders of working holiday visas), nothing prevents a foreigner who is lawfully present on the territory from requesting a change of status, which is granted subject to the foreigner meeting the conditions set out in law. According to this circular, particular attention must be paid to matching qualifications to jobs. The circular re-states that young graduates and their employers must also, as heretofore, meet the conditions that are common to all applications for work permits: the employer must comply with employment legislation and welfare legislation (potential increase in administrative requirements); the job market situation shall be taken into account, with (rare) exceptions; matching the student s qualifications to the job in question and the salary offered; knowledge of French. Concerning temporary residence permits valid for 6 months, designed for students with at least the equivalent of a Master s degree and who wish to have further time to look for work, the circular provides certain details that correspond to existing practices. The circular confirms that it is possible for holders of temporary residence permits to hold a job without the job market situation being taken into account at the time of examining the application for a work permit, provided that the contract of employment provides for a level of remuneration that is equal to or greater than one and a half times the SMIC (Salaire Minimum Interprofessionnel de Croissance Statutory Minimum Wage) and that the nature of the job is in line with the qualifications obtained. This derogation from the ordinary rule is justified to the extent that the job held constitutes initial professional experience and is part of a plan to return to the country of origin. Later, a new circular dated 12 January 2012 relating to the change in status of foreign students made the provisions of the circular dated 31 May on immigration control more flexible The policy followed in applying EU principles Encourage immigration by highly-qualified workers by means of the EU Blue Card The law on immigration, integration and nationality of 16 June 2011 transposed, inter alia, Directive 2009/50/EC of the European Council of 25 May 2009 creating an EU Blue Card for the benefit of third-country nationals who hold a highly-qualified job. In France, the EU Blue Card temporary residence permit, created in article L , 6 of the CESEDA, is aimed at foreign workers who are signatories of contracts of employment with a duration equal to or greater than one year, entered into in respect of jobs for which the gross annual remuneration is at least equal to one and a half times the average annual reference 8 Idem. See note 4. 19

20 salary in France, set by statute (i.e gross). The law does not replicate the provisions of the Directive that enable the threshold to be lowered to 1.2 times the average gross annual salary for professions characterised by a particular need for workers. In addition, foreigners must hold a qualification awarded after at least three years of higher study, or they must be able to demonstrate professional experience of at least five years at a comparable level. The job market situation is not taken into account. That residence permit is valid for a maximum of three years, and is renewable. The Directive provides for the permit to be valid for between one and four years. France wished to bring its period of validity in line with that of the Employee on Mission and Skills and Talents residence permits. Thus, the EU Blue Card is not only aimed at employees who move to the EU under intragroup international mobility. They can be recruited directly by a company. For jobs that require a high level of qualification, EU companies can recruit from a labour pool that is not restricted to France or the European Union. The spouses / partners and children under 18 of Blue Card holders are not required to go through the family reunification procedure. They automatically receive a Private and Family Life residence permit, and benefit from the same advantages as the families of employees on mission, in particular as regards the renewal of their residence permits. In order to encourage mobility within the European Union, foreigners who can prove that they have lived for at least 18 months in another EU Member State based on an EU Blue Card issued by that State shall be issued with an EU Blue Card in France, provided that they file their application within one month of their arrival in the country. Foreigners who hold the EU Blue Card temporary residence permit may be issued with a Long-Term EU Resident resident permit if they can prove that they have been resident for at least five years without a break in the territory of an EU Member State based on an EU Blue Card, including in France the two years preceding their application for a longterm residence permit. However, the law has not taken up the flexible arrangement enabled by the Directive that provides for the possibility of retaining, for the purposes of calculating the 5-year period applicable to the family, the years spent in another EU Member State The generalisation of issuing the long-stay visa equivalent to a residence permit The visa long séjour valant titre de séjour (VLS-TS Long-Stay Visa equivalent to a Residence Permit): with this visa there is no need to hold a residence permit for a maximum of one year; this visa breaks previous rules. In principle, all foreigners aged over 18 who wish to stay in France for more than three months must hold a residence permit. However, since 1 June 2009, certain foreigners who are holders of a long-stay visa with duration of over three months are no longer required to apply for a temporary residence permit during the period of validity of the visa, subject to completing certain formalities within three months of their arrival in France. When foreigners who wish to extend their stay beyond the period of validity of their visa (with duration of one year) apply to the prefecture in the two months preceding the expiry 20