GISTI STOP
LexInter | October 13, 2007 | 0 Comments

GISTI STOP

Seen under n. 10097 the summary request and the amplifying memorandum presented by the Information and Support Group for Immigrant Workers, headquartered in Paris 15, rue Gay-Lussac, acting prosecution and due diligence of its chairman in office Mr. Legouy, said request and the said memorandum registered with the Litigation Secretariat of the Council of State on November 21 and December 19, 1977 and tending that the Council should cancel for excess of power a decree dated November 10, 1977 which provisionally suspended the application of the provisions of the decree of 29 April 1976 relating to the conditions of
Seen under n. 10677 the request made for the French Democratic Confederation of Labor, whose seat is 5, rue Cadet [Paris 9th], the said request registered with the Litigation Secretariat of the Council of State and tending that the Council should cancel for excess of power a decree of November 10, 1977 temporarily suspending the application of the decree of April 29, 1976;
Seen under n. 10679 the summary request and the amplifying memorandum presented for the General Confederation of Labor, whose registered office is 213, rue Lafayette, the said request and the said memorandum registered with the Litigation Secretariat of the Council of State on January 11 and March 15, 1978 and tending to that the Council should cancel for excess of power the decree of November 10, 1977 suspending the application of the decree of April 29, 1976. Having regard to the decree of April 29, 1976; Having regard to the constitution of the French Republic; Having regard to the Labor Code; Considering the ordinance of July 31, 1945 and the decree of September 30, 1953; Considering the law of December 30, 1977;
Considering that the requests of the Information and Support Group for Immigrant Workers, the French Democratic Confederation of Labor and the General Confederation of Labor are directed against the decree of 10 November 1977; whereas it is necessary to join them so that they are the subject of the same decision;
On the admissibility of the requests: Considering that the defense of the material and moral interests of foreign workers meets the purpose of the association and the requesting trade unions; that thus the Minister of Work and participation is not founded to maintain that the applicants do not justify an interest sufficient to request the annulment of the attacked decree;
That the contested decree of November 10, 1977 suspends, for a period of three years, admissions to France covered by these provisions but specifies that the provisions of the decree of April 29, 1976 remain applicable to family members who do not request access the job market; that the decree attacked thus has the effect of prohibiting access to French territory to members of the family of a foreign national holder of a residence permit unless they renounce to occupy a job; admissions to France covered by these provisions but specifies that the provisions of the decree of April 29, 1976 remain applicable to family members who do not request access to the labor market; that the decree attacked thus has the effect of prohibiting access to French territory to members of the family of a foreign national holder of a residence permit unless they renounce to occupy a job; admissions to France covered by these provisions but specifies that the provisions of the decree of April 29, 1976 remain applicable to family members who do not request access to the labor market; that the decree attacked thus has the effect of prohibiting access to French territory to members of the family of a foreign national holder of a residence permit unless they renounce to occupy a job;
Considering that it follows from the general principles of law and, in particular, from the Preamble to the Constitution of October 27, 1946 to which the Constitution of October 4, 1958 refers, that foreigners legally residing in France have, like nationals, the right to conduct a normal family life; that this right includes, in particular, the option for these foreigners to have their spouse and minor children come to them; that, if it belongs to the Government, under the control of the judge of the excess of power, and subject to the international commitments of France to define the conditions of exercise of this right in order to reconcile its principle with the necessities relating to public order and social protection of foreigners and their families, the aforementioned government cannot prohibit by general measure the occupation of a job by the members families of foreign nationals; that the attacked decree is thus illegal and must, consequently, be canceled; employment by family members of foreign nationals; that the attacked decree is thus illegal and must, consequently, be canceled; employment by family members of foreign nationals; that the attacked decree is thus illegal and must, consequently, be canceled;

 

DECIDES:
DECIDES: Article 1 – The decree of November 10, 1977 is annulled.


Analysis by the Council of State

Through the GISTI decision, the Council of State establishes the right to lead a normal family life as a general principle of law.

Taking into account the employment situation, the government had, by a decree of November 10, 1977, suspended for a period of three years the application of the decree of April 29, 1976 which regulated the conditions under which a foreign worker residing regularly in France could be reached by members of his family. The 1976 decree established a fairly liberal regime since access to French territory and the granting of a residence permit for these people could only be refused for four reasons: length of residence in France of the head of the family too short, insufficient resources, unsuitable housing conditions, necessities of public order. Under the 1977 decree,

Seized of the legality of this decree, the Council of State was led to identify a new general principle of law, designated as the right to lead a normal family life, which lies on the borders of two new categories, but expanding, general principles of law: those relating to foreigners and those relating to social matters.

Contrary to its previous practices, the Council of State linked the principle that it set out in the GISTI decision to textual provisions, and in particular to the Preamble of the Constitution of 1946. This Preamble in fact provides that “the nation ensures to the ‘individual and family the conditions necessary for their development “. In doing so, the Council of State did not remain within the limits of the constitutional text, the principle it affirms being broader than what the Preamble provides. Likewise, the right to lead a normal family life does not only include the right for foreigners to be joined by their spouse and their children, even if it constitutes one, as the Council of State points out, a dimension.

Like all the principles established by the Council of State or by the constitutional judge, the right to lead a normal family life must nonetheless be reconciled with other requirements that the Council of State has defined, in a fairly Praetorian, as being public order and social protection of foreigners. The latter seems to mean that the government can oppose the reunification of families with insufficient resources. Once these principles were established, the Council of State could only censure the attacked decree which had made family reunification conditional on the renunciation of the occupation of a job by the family of the foreigner.

The importance of this decision goes beyond the principle it affirms. In particular, it contributed to giving foreigners a less precarious status than that which was traditionally reserved for them. The Council of State was subsequently led to identify general principles of law specific to political refugees (CE, ass., April 1, 1988, Bereciartua-Echarri, p. 135). In addition, invited to do so by international law, the Council of State took advantage of Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms which also recognizes the right of everyone to respect for family life, such a right can be claimed against a refusal of a residence permit (CE, sect., April 10, 1992, Marzini, p. 154) or refusal of a visa, but also against measures for expulsion from the national territory (CE, ass., April 19, 1991, Belgacem, p. 152 and Mme Babas, p. 162).

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