By Christian Jorgensen
Leading French presidential candidate for the far-right Front National party Marine Le Pen is running on a platform that she says will “free France”, and she has made 144-commitments that she promises will do just that. There are three that revolve around the topics of citizenship and asylum that deserve a closer look into what their impact on migrants and policy could be.
Promise 28: To return to the original spirit of the right of asylum which, furthermore, will only be granted after the filing of an application in French Embassies or Consulates in the countries of origin, or bordering countries.
In promise 28 of her 144 Presidential Commitments, Le Pen advocates a “return to the original spirit of asylum.” Expanding on that, she hopes to change the refugee application process, to only accept asylum applications from outside of France: in French embassies or consulates in the countries of origin, or in bordering countries. Looking at the 1951 Refugee convention, of which France is founding member, and French domestic law, Le Pen’s “return” may not be as easy to implement as she and the Front National may think.
Foremost, the Refugee Convention builds on Article 14 of the 1948 Universal Declaration of Human Rights (UDHR)which recognises the right of individuals to seek asylum from persecution. Building on this right, The Refugee Convention of 1951 defines a refugee thusly:
”As a result of events occurring before 1 January 1951 and owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.”
The key point here that Le Pen should be aware of is that a refugee is an individual who has been forced to flee his or her country of origin and most likely cannot return home or is afraid to do so. Le Pen’s proposal to require asylum to be requested in countries of origin is completely contrary to what the law states about asylum. If an individual is forced to flee out of fear for their life, it is very unlikely that they will be able to request asylum at a French embassy in their own country.
Going deeper one can look at France’s own constitutional law on the issue. French law dating back to the preamble to the constitution of 27 October 1947, “[a]ny man persecuted in virtue of his actions in favor of liberty may claim the right of asylum upon the territories of the Republic.” This was again strengthened in 1993 in a report by the Constitutional Council, “asylum is a [French] constitutional right for persons who qualify for it” (emphasis mine.) Furthermore, the Constitutional Council found that asylum applicants have the right to reside in France until their asylum request has been processed and decided upon, and those who qualify for asylum must be allowed to stay in France. Le Pen’s promise requiring asylum seekers to file their requests overseas contradicts not only international law but French constitutional law as well.
Additionally, there is some confusion in the language she chooses to use. In response to her claim “to return to the original spirit of asylum,” what does she exactly mean? In 1951, as the United Nations led by France and the other major world powers sat at the table, they drafted the 1951 Refugee Convention to create a set of rules that address the refugee issue that had been created by WWII. Thus, France along with the other UN leaders created the original spirit of asylum. This spirit was one that emphasized the principle of non-refoulement, which asserts that a refugee should not be returned to a country where they face serious threats to their life or freedom. One could argue that Le Pen’s plan to return to the original spirit is completely contrary to what the original spirit of what modern asylum law is, perhaps she would like to return to the days of cathedral sanctuary?
Through a legal lens it is highly unlikely that promise 28 will be able to be kept entirely, as there are many aspects of international and French law that Le Pen seems to disregard.
Promise 27 To abolish jus soli (right of the soil): it will only be possible to acquire French nationality by filiation or naturalisation, the conditions for which will be tightened. To abolish dual nationality for non-Europeans.
Le Pen has made her 27th commitment to completely change the system in which French nationality is acquired and change the rules for all individuals who currently hold dual-citizenship. With the jus soli legislation of the current French Civil Code, French citizenship can be obtained by individuals born in France in four ways:
- At age 18 if individual has held French residency for five years since the age 11;
- Between the ages of 16 and 18 upon request by the child and if the individual has been a resident of France for at least 5 years since age 11
- Between the ages of 13 and 16 upon the request of the child’s parents and if the individual has been a resident of France for at least 5 years since age 8.
- Immediately at birth, if the child is stateless
Now, per Le Pen and the Front National leaders, they want to abolish all of it. First it should be noted that to keep this promise Le Pen would need to put forth an amendment to the current French Civil Code and get this approved by the French National Assembly. With the current makeup of the French National Assembly, which is controlled by the Socialists, it is very unlikely that such a measure would pass without much contention.
The real question is the legality of the denial of jus soli citizenship for those born in France who would otherwise be born stateless. Is this legal, considering that jus soli is a safeguard against statelessness? There is an international treaty, the 1961 Convention on the Reduction of Statelessness that may lead to Le Pen violating numerous areas of international law. It should first be noted that France has signed the 1961 convention but has yet to ratify it. However, the Vienna Convention on the Law of Treaties, which is considered by many states and international bodies to be customary international law (see ICJ, Gabčíkovo-Nagymaros Case), states that being a signatory alone, “creates an obligation to refrain, in good faith, from acts that would defeat the object and the purpose of the treaty.” Therefore, as a signatory to the 1961 Convention on the Reduction of Statelessness, France is bound to not purposefully do anything that violates the 1961 convention, which eliminating jus soli citizenship at birth for stateless individuals arguably would. It could violate Article 1(1) and Article 1(4) of the 1961 convention. Article 1(1), the first and most important article, binds states to grant citizenship to persons, otherwise stateless, born in their territory. This may be in any matter they seem fit within their national law, but a path to citizenship must be available to those stateless individuals born on their territory. Article 1(4) requires states to give nationality to a person, otherwise stateless, who is legally precluded from assuming his/her birth of nationality. This could extend for example to individuals born to Jordanian national single mothers to receive French citizenship, since Jordanian citizenship cannot be maternally inherited.
The last part of Le Pen’s 27th promise is that dual-citizenship would be removed from all Non-European French-naturalized-citizens. She explains further, this would allow naturalized French citizens with dual-citizenship in other EU countries and even non-EU European countries such as Russia to keep their dual-citizenship but would require naturalized French citizens such as French-Israelis or French-Americans to choose one citizenship over the other. The inclusion of Russia begs the question of who is implied by “European” in Le Pen’s definition. Russia is not in the EU, but is in the Council of Europe and continental Europe- as are Turkey and Azerbaijan. Would this mean that all Turkish and Azerbaijani dual-citizens would be able to keep their dual status as well?
Without clarification (if she, for instance, just means EU members plus Russia), Le Pen’s ad-hoc definition of European could arguably fall under UDHR Article 15 , which states that no one may be arbitrarily deprived of his or her nationality. (Although not a binding legal treaty, many provisions of UDHR have achieved status of international customary law, and this is one of them). The UN has addressed the issue of deprivation leading to statelessness and have found for it be in violation of international human rights law (UN HRC report).
Additionally, this is not something Le Pen can unilaterally enact. To keep this promise Le Pen would have to call on the National Assembly to add additional reasons for citizen deprivation, which is dictated by Article 25 of the French Civil Code and currently only allow for deprivation of citizenship because of criminal and treasonous acts against the French Republic and not because of the state or region where an individual has additional citizenship.
Promise 31 To combat jihadi networks: stripping of French nationality, expulsion and banning re-entry into the country for any person with dual nationality linked to a jihadi organisation. To apply Article 411-4 of the Penal Code on passing intelligence to the enemy and to place any individual with French nationality, with links to a foreign organisation promoting hostile activities or aggression against France and the French people, in preventive custody. To draw up a list of such organisations.
Promise 31 is one of the few similarities between Le Pen and current French President Francois Hollande, who earlier in 2016 tried to add a similar provision to French Nationality Law. However, Le Pen would like to deprive French nationality to all individuals with connections to “Jihadi” organizations. French Civil Code under Article 25 would allow for deprivation of citizenship for French citizens and dual nationals who carried out terrorist attacks, but it has only been acted on a few times and the courts are very reluctant to deprive individuals of their French citizenship. Based on the court’s history of deprivation Le Pen might have a much harder time with carrying out deprivation even further. Currently, Article 25 states that an individual who has been sentenced for committing a crime against the state may constitute legal reason for deprivation of citizenship, however, this doesn’t extend to someone who is suspected of terrorist activity or suspected to have connections to terrorist organizations. Le Pen would have to further define what she defines as a connection to such an organization. Is it having cousins belonging to terrorist cell? Is it indirectly fundraising for an organization determined to be a terrorist organization, whether one consciously knows it? Additionally, does this only apply to Islamist terrorist organisations, as using the term jihad implies, and not apply to terrorist organizations on the far left, or right, or terrorist organizations with a Western Religious Ideology such as Catholic or Protestant Christianity?
There is another problem with Le Pen’s vague wording, in that depriving someone’s citizenship for ill-defined connection with an organization could violate the freedom of association and legal privacy of life promised by the French Constitution. For Le Pen to keep true to her promise in this regard, she and the Front National must make this promise a great deal more specific for it to have a chance of becoming French legal practice.
Overall vagueness, disregard for existing law, and feasibility all seem to be reoccurring issues with Le Pen’s promises on migration and citizenship. It is one thing to make policy promises and another to navigate the pathway to successful policy implementation and this is something Le Pen and Front National should keep in mind.