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France's Immigration Reform Limits The "Double Penalty" of Deportation After Time Served

by Carl R. Baldwin

This has nothing to do with US immigration law, to be sure, but the French approach to immigration and deportation may be worth taking a look at from a comparative law point of view. My source is the Parisian daily, "Le Monde," and several articles in the April 30, 2003 issue (my translations).

The "double penalty." Without removing it altogether, the new law establishes four categories of foreign citizens for which the protection from deportation after time served for a criminal offense is "almost total" : those who entered France before age 13; the spouses of French citizens or legal residents; the parents of children who are French citizens; those who have resided legally in France for at least 20 years. Excluded from this rule are foreign citizens who have committed acts of terrorism, or crimes against "fundamental state interests."

Marriage. Certain provisions of the law are designed "to prevent the fraudulent use of marriage to obtain immigration benefits." The Mayor of the town can require the foreign citizen to present legal papers, or, if he is undocumented, the marriage ceremony may be delayed for a month or two. During that period, the undocumented foreign citizen can be interrogated by the authorities to see whether there are "serious indications" that the planned marriage is phony. The duration of a life together in order for the foreign citizen to receive a residence card would be two years, not the present one year.

Paternity. The foreign citizen taking advantage of his fatherhood of a French child in order to obtain a residence card must henceforth prove that he actually exercises parental authority, and also that he financially supports the child. Prior law only imposed one of these two requirements.

Family reunification. The automatic grant of a resident card on the basis of family reunification is eliminated. From now on, it is only at the end of five years of residence that it can be applied for, provided that a "satisfactory" integration into French society can be demonstrated.

Legal residence. The waiting period for a resident card for foreign citizens who possess a one-year temporary residence will be increased from three to five years. Legal resident status will only be granted if the foreign citizen can demonstrate his "integration into French society." The same is required for the undocumented foreign citizen, after a period of residence of ten years. My question: A current point of tension has been the refusal of some Muslim women to remove their headscarf when sitting for ID photographs, as required by a new government edict. Will this prevent proof of "integration?"

Detention prior to deportation. The reform law expands the allowable period of detention for undocumented foreign citizens from 12 to between 26 and 32 days. By the end of that longer period the government hopes to identify the new arrival, and get the relevant home country's permission to accept his return.

Visa requirements and deportation efforts. Applicants for a tourist visa (not requirerd for nationals of the US, the European Union, and Japan) must be fingerprinted, and the prints stored in a data-base located in Paris. According to the law's architect, Interior Minister Nicolas Sarkozy, this will discourage the widespread abuse of the three-month tourist visa which provided an easy entry but did not require an exit. Deportation efforts against overstays and the undocumented will be stepped up, and Sarkozy anticipates a groundswell of deportations.

So, this has the earmarks of another hardline enforcement-oriented immigration law, like our 1996 "reform." With one important exception: The limitation on the tragic "double penalty"---deportation after time served---is a remarkable gesture in the interests of family unity. Do we have something to learn from the now-despised French?

About The Author

Carl R. Baldwin graduated from Columbia University Law School in 1980, and became a member of the New York State Bar a year later. He worked for three years with the New York City Law Department, and then entered solo practice in immigration law, which he has continued to the present. Mr. Baldwin's website of articles and commentary is at Mr. Baldwin has written a book on immigration law, "Immigration Questions and Answers," Allworth Press, 2002, which contains essential background information on how the immigration law works. It can be ordered online at

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.

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