One step forward, two steps back, this is how the discussions between the government and LR are going. The Immigration bill comes up against the same obstacle again and again: its famous article 3, which establishes a residence permit for foreigners exercising a profession in shortage. A red rag for the right, the text is totemized in return by the presidential majority. “With Olivier Dussopt, we are committed to this article,” Interior Minister Gérald Darmanin said on BFMTV on Monday. Fear of a draft against concern for the integration of employees useful to economic life: each camp deploys its arguments at will, under the indifferent gaze of the other.
This political guerrilla wears the clothes of law. Under a circular issued by Manuel Valls in 2012, prefects can already grant a residence permit to illegal immigrants with eight months of work experience. But this regularization is carried out under the patronage of the employer, who must support the process of his employee. The executive noted that some business leaders are not playing the game in order to keep labor cheap. Freeing employees from this influence is a consensual approach.
“In place of the right, I would accept the legislative solution”
This is where it gets complicated. The government assures that a legislative modification is essential to allow the employee to make their request alone. Starting with Élisabeth Borne, to whom legal analyzes were sent. “The law is necessary to circumvent the power of the employer,” we insist in Beauvau.
The right assures the opposite and judges that a simple modification of the Valls circular is sufficient. “It’s regulatory,” confides the boss of senators LR Bruno Retailleau. Three lawyers confirmed to me that there is no need to go through the law.” A pillar of the government, who knows the issue well, almost chokes up: “In the place of the right, I would accept the legislative solution by modifying the criteria for awarding the title. With a circular, the government decides everything Nothing prevents Gérald Darmanin from getting up one morning, taking his pen and correcting the text. By refusing a legislative provision, LR is participating in maintaining a system beyond parliamentary control.”
Here, everyone delivers a legal analysis consistent with their political interests. The executive measures the attachment of its majority to an article of law, which does not want to let LR hold the pen. The senatorial right, which will examine the text from November 6, is torn: it does not want to hear about Article 3, but would prefer to send a muscular text to the Assembly rather than reject it en bloc. She toughened the repressive aspect of the text in the Law Committee and is preparing for a new turn of the screw in session. Hence the regulatory route.
The senatorial majority divided
The senatorial majority displays its divisions. Bruno Retailleau tabled an amendment to delete article 3, criticizing the creation of a “right enforceable against the administration” – the title is granted “as of right”. He also denounces a bonus for “fraud”. The president of the centrist Union group Hervé Marseille, for his part, defends an amendment which reduces the scope of article 3, but does not delete it. The title could be requested by the employee alone, but would be granted “exceptionally within the framework of the discretionary power of the prefects”. “As we have obtained a lot of things on the text, the idea is to make a gesture towards the Assembly,” recently confided a centrist elected official.
A legislative hook to reassure the majority, a drastically limited title to calm the right. Skillful. Too clever? Bruno Retailleau does not want the slightest “trace” of article 3, and part of the majority is attached to the issuance of a “full right” title. “It would be lose-lose,” warns a Macronist executive. “We would lose the votes of the majority and those of the Republicans.”
Title of “full right” or at the discretion of the prefects?
The switch from a title granted “with full rights” to regularization at the discretion of the prefects indeed carries serious consequences. In the first case, the foreigner must be regularized if he meets the legal conditions of seniority at work and length of residence in France. In the second hypothesis, the prefect has a wider margin of appreciation and takes each decision on a case-by-case basis. The right sees it as a way to further regulate immigration, the left wing of the majority sees it as a risk of unequal treatment of foreigners. The president of the Law Commission Sacha Houlié points out another danger. As prefects have little means of regulating immigration – family reunification or asylum fall outside their jurisdiction – they will have to be strict in the area of work.
But nothing is simple with this bill. Prime Minister Élisabeth Borne assured Bruno Retailleau on October 23 that she did not want the system to create an “enforceable right” to regularization, which is what it is in the initial bill. “She blames her minister!” slips Bruno Retailleau, not unhappy to drive a wedge between the head of government and Gérald Darmanin, with notoriously cool relations. A Renaissance executive wonders: “Perhaps because of its prefectural aspect, it would prefer a text which does not place the prefects under any specific jurisdiction, but that is the only way to be effective.” The soap opera continues.