The French Minister of the Interior announced the upcoming abolition of “droit du sol” in Mayotte. A reform which will have to go through a constitutional revision. But this announcement confirms the fact that the island, which nevertheless has the status of a department, has always been the subject of different treatment from France, and even from other overseas departments.
Gerald Darmanin announced this Sunday, February 11, a constitutional revision to remove the “ birthright » in Mayotte. He also indicated a tightening of the conditions for family reunification. Statements which once again demonstrate the differentiated treatment reserved for 101e French department. And which even reinforce it, underlines Marie-Laure Basilien-Gauche, professor of constitutional law, at the microphone ofAdrien-Guillaume Padovan. “ Mayotte is already a department set apart with derogatory rules, exceptional regimes which limit the rights of migrants. Such a law would pose a very big problem from the point of view of the indivisibility of the Republic », she worries.
The measurement is “ radical “, concedes the minister, but she “ will literally cut off the attractiveness » of the Mahorais archipelago. The small territory of the Indian Ocean is faced with strong migratory pressure, mainly coming from Comorosbut also the Great Lakes region, which accentuates the economic and social difficulties of the poorest French department. Making the situation explosive.
These announcements, which groups of Mahorais were calling for, were therefore welcomed on the right and the far right, while the left expressed their concern. Because this is not the first exceptional measure announced by Paris to try to resolve the island’s problems. Over the years, the State has gradually tightened its migration policy, increasing the number of exceptions. “ Foreigners’ rights have always been different in Mayotte, explains economist Antoine Maths, who has worked on economic and social policies on the island. Afterwards, as a French department, Mayotte had to come closer to the rules of law of the united and indivisible Republic, the rest of France and even the other overseas departments, but we maintained, and even at one point introduced, distinctions. »
A special story
To better understand, we must recall the history of the island. At the beginning of the 1970s, Mayotte was part of the Comoros archipelago, then a French overseas territory having acquired a certain autonomy after having been a colony. In 1974, the Comoros organized a self-determination consultation. If overall, the archipelago is in favor of its independence, Mayotte votes to remain in the French Republic. Despite international law which says that decolonization must be carried out with respect for territorial integrity, France chooses to take into account the results in Mayotte separately. The international community has never recognized the island’s attachment to France.
From there, the situation gets complicated: the Comoros is one of the poorest countries in the world, regularly plagued by instability. Mayotte therefore becomes attractive and its population increases. At the same time, although Mayotte “separated” from the Comoros, it retained strong links – family, commercial – with the other islands.
From 1995, France therefore implemented the “Balladur visa”, reserved for Comorians who wanted to go to Mayotte. Already intended to slow down immigration, it is particularly difficult to obtain. Illegal crossings are increasing. The departmentalization of the island in 2011 will further accentuate the phenomenon. And if the legislation of Mayotte had to align with the laws of the Republic, its inhabitants are still far from benefiting from the same rights.
Exemptions accepted by the Constitutional Council
Until touching on the fundamentals of the Republic. In 2018, asylum and immigration law restricts land rights in Mayotte. In France, if a child is born to foreign parents, to obtain French nationality when they turn 18, they must have lived in France for at least five years since the age of 11. We are therefore already far from “soil law” strictly speaking who would like a child born on French territory to be automatically French. And for a child born in Mayotte to foreign parents, it is even more complicated: it is now necessary to add to these residence conditions, proof that one of his parents was staying regularly on French territory for at least three months before his birth. birth. Mayotte therefore already benefited from a tailor-made “land right”.
Exceptions granted by the French Constitution, which provides that adaptations can be made “ according to the particular characteristics and constraints of its overseas communities “. “ The Constitutional Council accepts that certain territories of the Republic, and in particular overseas territories, are subject to derogatory rights, as long as the derogation is justified by the particular situation, but also a general interest, explains Lisa Carayon, lecturer in law and member of Cimade, which helps migrants, at the microphone ofAmélie Beaucour. This is sometimes to grant greater rights to certain territories. For example, certain procedural deadlines are extended in Guyana to take into account the differences in traffic encountered by citizens of the territory. Or to take into account particular cultural situations. »
Another exemption, even older, but which would be removed, promised Gérald Darmanin, if land law was abolished in Mayotte: “territorialized residence permits”. While a residence permit obtained in mainland France allows a foreigner to come and go anywhere in the territory, a residence permit issued in Mayotte is only valid on the island. To travel to France, you therefore need a visa. A device “ which condemns nearly 40,000 people to remain in a territory which has nothing to offer them », Regrets Marjane Ghaem, lawyer, member of the Immigrant Information and Support Group (Gisti).
And we can cite other differences with French law: shorter deadlines for asylum requests, lack of recourse in the event of an obligation to leave French territory (OQTF)… The 2018 law also restricted the card giving the possibility for a minor foreigner to travel only to children born in Mayotte.
The immigration bill, adopted in January, also planned to tighten the conditions for access to nationality in Mayotte – it would have been necessary to provide proof of one year of residence permit instead of three months – by extending this provision to Guyana and in Saint-Martin. “ It was censored by the Constitutionnel, notes Lisa Carayon, not on the merits, but on the fact that these provisions were what we call a “legislative rider”, that is to say, they had not followed a correct procedure with regard to their adoption. »
But the rights of foreigners and access to nationality is not the only area in which the laws differ with the mainland. Social minimums, such as social benefits are not the same on the island, the RSA or the hourly minimum wage for example, are lower.
“ The attractiveness of Mayotte has nothing to do with the papers »
So far in any case, these exceptional treatments have not made it possible to end the crisis in Mayotte. Can the abolition of land rights change things? “ There is nothing new in reality, Marjane Ghaem is indignant: these are just the same reforms to the power of three, to the power of four, etc. We’ve been calling out to people in their homes for 25 years, we’ve been breaking lives and repeating to kids for 25 years: “you’re just a stranger.” So the only thing that’s going to happen, in my opinion, is that there will be even more violence. »
Behind these measures, the associations point out, the idea that Comorian women come to Mayotte to give birth and that the children benefit from French nationality. “ This is a lack of knowledge of the situation and current law, underlines Lisa Caron, since even so, their children could only claim nationality a very long time later, and in the meantime, they are like their children, arrestable, deportable, and have no particular right due to having given birth on the territory Mahorais. »
According to economist Antoine Maths, these measures will “not nothing to fix “. He castigates the “ amalgams » which are made and which have favored the rise of xenophobia in the territory: “ If Mayotte lacks water, it is perhaps also linked to failures of local public authorities, but also of the State. It’s always easier to point the finger “the stranger”to make immigration the scapegoat. »
For the lawyer who defends the rights of foreigners, “ the attractiveness of Mayotte has nothing to do with the papers, but with the difference in development. And these laws will not change its attractiveness. We have an ocean of poverty around us, so even if Mayotte is ultra-precarious, it will remain attractive. »
Worse, according to her, “ all successive reforms contribute to further precarious the situation. Young people born in Mayotte to foreign parents who previously could [avant 2018] claiming French nationality at 16 or 18 years old, will at best be able to obtain a one-year residence permit. So instead of having young people who could fit in, their journey will be strewn with pitfalls. »
An analysis shared by Antoine Maths: “ Somehow these policies accentuate the problems they claim to combat. You have young people in the high schools of Mayotte who were born in Mayotte, who did all their schooling in Mayotte, who watch French TV, who took the same courses as you and me, find themselves at 18 without papers and without future. Isn’t this a factor in increasing delinquency? »
Can this suppression of land rights succeed? It’s hard to know, but a barrier has already been crossed “, estimates Lisa Carayon, since “ the Constitutional Council has already admitted that there are differences between Mayotte and the rest of the Republic for access to nationality » with the 2018 law.
This would then be a turning point. dangerous », Warns constitutionalist Marie-Laure Basilien-Gauche. “ We can imagine that once this suppression has been introduced in Mayotte, it could extend to other territories of the Republic. “.
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