Ius soli as ‘pull factor’? French reform plans for the island of Mayotte

Jules Lepoutre (University Côte d’Azur)

Is ius soli really a ‘pull factor’ for migration to Mayotte, a small island in the Indian Ocean that is part of French territory? Based on this claim, French Interior Minister Gérald Darmanin announced on 11 February, during a visit to the island, that the government intended to abolish the “droit du sol” for this territory alone. This move to restrict territorial birthright citizenship is not new to Mayotte, but it is taking an unprecedented turn here, dividing the territory of the Republic more deeply without a clear assessment of the need to do so.

In Mayotte, ius soli has long been seen as a pull factor, particularly for the neighbouring Comorian population (six hours away by boat). Illegal immigration to Mayotte is said to be driven by the desire to give birth to a child there in order to regularise the parents’ status (an argument very similar to the one used in the United States in relation to so-called “anchor babies”). It is to break with this attraction of the French nationality law that there is now discussion of abolishing the “droit du sol” outright.

France, however, does not have an ‘absolute’ ius soli, as in the United States, where a child’s birth on the territory alone makes her or him a citizen. Under French law, children must wait until they are thirteen and have lived in France for five years since the age of eight before their parents can claim French nationality on their behalf. At best, therefore, a child born in France will be French thirteen years later. Only then can the parents benefit from the right of residence as parents of a French child. How, then, can nationality be seen as a major determinant of migration to Mayotte? Arguably, the extreme poverty of the Comoros and the wealth gap with France are much more obvious and immediate pull factors. The proposed reform thus rests on questionable assumptions concerning the effects of ius soli on migration flows. Without any serious economic or demographic study, the reform fails to demonstrate its necessity, beyond the fact that a large number of foreign children are born in this territory.

Such a reform also triggers the “indivisibility of the Republic” – a French constitutional principle closely linked to the centralised state and the Jacobin tradition. Mayotte’s ius soli has already been adapted in 2018. Unlike in the rest of France, a child must be born to at least one parent who is a legal resident before the child can be granted citizenship at a later date. This provision alone already makes it possible to deny access to nationality to all children born to parents residing illegally in Mayotte. The French Constitution (Article 73) allows legislation to be “adapted” to the “characteristics and constraints” of overseas France. However, the abolition of ius soli is no longer a question of “adaptation”. Rather, it is a question of pure and simple division of the territory of the Republic. The Constitutional Court could consider the abolition of the ius soli in Mayotte to be a violation of this article of the Constitution, a reason that surely would lead the executive to adopt a constitutional reform rather than an ordinary law – and thus avoid the control of the Constitutional Court (which reviews the constitutionality of laws, but not the Constitution itself).

Moreover, this is not the only constitutional aspect of the issue. As I already mentioned in a previous GLOBALCIT blog, French ius soli could be considered as a constitutional principle per se. The Conseil d’État (the government’s institutional advisor and supreme administrative court) warned in its advisory opinion on the 2018 reform, which has already restricted ius soli in Mayotte, that “the draft law can be considered as merely modifying the conditions for exercising ius soli […] without calling into question the essential and long-standing rules on nationality, which would raise more delicate questions of constitutionality”. Ius soli is in fact an ancient principle of French law. It dates back to the Ancien Régime (before the French Revolution) and was enshrined in the revolutionary constitutions and subsequently in all republican regimes. This principle could therefore be recognised as constitutional through the case law of the Constitutional Court on the “fundamental principles recognised by the laws of the Republic” (principes fondamentaux reconnus par les lois de la République). In 1993, when the Constitutional Court refused to recognise the automatic nature of ius soli acquisition as a constitutional principle, Robert Badinter, then President of the Court, pointed out during the deliberations that “if the legislature had abolished ius soli, the question [of its constitutional conformity] would have arisen”. There is, therefore, reason to believe that ius soli could be protected as a constitutional principle in the face of its partial or total abolition by the legislature.

These two constitutional reasons, the first linked to the indivisibility of the Republic and the second to the fundamental nature of the ius soli, probably justify the executive’s decision to opt for a constitutional amendment. Rather than run the risk of violating the Constitution, the government prefers to revise it.

Abolishing ius soli in Mayotte would also revive the territory’s colonial history. Established as a colony in the 19th century, ius soli did not apply there for a long time. While in continental France there was a statutory law on nationality, in the colonies there were special and derogatory regulations. Because foreigners who are resident in those territories were not “socially evolved” enough to be part of the French population – as the report of a 1933 decree put it – the ius soli did not apply in Mayotte and other colonies. It was therefore the racial inequality inherent in the colonial system that justified this exception. It was only ended in 1993 by the “Pasqua-Méhaignerie law”, adopted by the right and the liberals – the very ones who are now pushing for its abolition. This project therefore implements a colonial imaginary of divisions and inequalities. This has not prevented some Mayotte residents from demanding this change in order to better “protect” the French community they constitute from immigration (sometimes described as a form of colonisation). But the government has so far failed to demonstrate the need for such a radical decision, which could eventually lead to a challenge to ius soli on a national scale.