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Fundamental rights

The main provisions relating to fundamental rights are included in the body of Constitutional laws which apply equally to citizens and non-citizens. The Constitution of the fifth Republic of 1958 has preserved integrally the principles and norms included in the Declaration des Droits de l’Homme of 1789 and the Preambule de la Constitution du 27 October 1946 as its own “Bill of Rights”. In these constitutional laws, are included norms about non-discrimination, equal rights of all to work at equal conditions, to health care and social security, to access to education. Thus Foreign children, regardless of the legal or not legal status of their parents have an inalienable right of access to public schooling in France according to its Constitutional laws.

Within this general framework, special rights of residency and access to work were accorded to citizens of former colonies, as agreements were entered with the new governments on conditions of reciprocity. So, the Evian agreements of 1962 gave special rights, for instance to Algerian citizens, including freedom of movement in the French territory.

In the 1980s, together with he rapid creation and implementation of the European communities area, more comprehensive rights were given to European citizens, while the agreements with he former colonies were in many cases not renewed.

An important issue, especially in the late 1980s and early 1990s, has been the right to citizenship for long-term foreign residents and for children, including those born in France of foreign residents. The main rules on acquisition of nationality (through marriage, birth or long-term residency) were traced in the Ordonnance of 1945. The principle of automatic right to citizenship, for instance through marriage or birth in the territory of France, was progressively contested and eroded since the 1970s. Since the mid-1980s a comprehensive reform was proposed towards the abolition of automatic rights to French citizenship in certain conditions and to limiting the right to acquisition of French citizenship for young foreigners. In 1993 a controversial and complex law (Code de la Nationalitè) was passed on such basis, which effectively restricted access to nationality for a number of migrants and their children. This reform was to a large extent reversed in 1998: the highly controversial requirement of a “manifestation of will to become French citizen” required from certain categories of potential candidates to citizenship by the law of 1993 has been abolished. Also, the full and automatic right to French citizenship for young people born in France from foreign parents and living in France has been reinstated. In 2000 France signed the Council of Europe Convention on nationality of 1997, which traces and obliges signatory States to abide by non-discrimination criteria for attribution of citizenship, right to know the motivations of a refusal of citizenship status and right to a decision within a reasonable time. However, it has not yet ratified this Convention.

Foreigners have no political rights, according to article 3 of the French Constitution in force.

Rights to participate in political life were excluded for immigrants in the very same years of Frances’ open borders to migrants. In the 1970s, together with a closure of the borders some limited participation rights at local level were accorded to migrants in certain regions.

In 1981, rights to association and freedom of expression was granted to foreigners. The law of 1981 (“Pyrefitte law”) cancelled the previous law which regulated this matter of 1939, which submitted foreign associations to the control of the Ministry of Interior Affairs (“authorisation préalable”). From 1981 foreign associations do not need to receive an authorisation from the Ministry but must only inform the Ministry of their existence (“déclaration préalable”). Important movements such as the “Beurs” movement of the 1980s or the “sans-papiers” movement, which could express freely because of the law of 1981, helped shape the new immigration polices, including the debate on citizenship for second generation migrants.

The Maastricht Treaty of 1992, by granting local political rights to EU citizens residing in another EU country than the one of their nationality, has paved the way for central government measure towards voting rights, at least in local elections, also for non-EU foreign residents.

An important legislative move has been the reception of articles 3 and 8 the European Convention of Human rights in French law through the “Chevenement law” of 1998, as they reinforced the rights of migrants to privacy in private and family life and in correspondence.

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