Will the Constitutional Council validate a new law granting automatic visas to British second home owners? asks Anaïs PINSON, Avocat.

Under the provisions of Article 16 of the Loi Immigration a new Article L. 312-4-1 has been added, as follows:

“Long-stay visas are issued automatically to British nationals who own a second home in France. They are therefore exempt from having to apply for a long-stay visa. The conditions for the application of this article shall be specified by decree of the Conseil d'Etat.”

This text is an amendment tabled by senators from the political party 'Les Républicains', who justified it on the grounds that second home owners pay the property tax in France, and their presence assists in promoting the economic dynamism of villages. The special links between France and Great Britain were also highlighted.

There is, however, every reason to believe that the clause will not be validated by the Constitutional Council (CC), on several grounds.

Discrimination

In principle, different rules may apply to different nationalities due to the existence of bilateral agreements between France and other countries, or because a national comes from a Member State of the European Union.

Nevertheless, this is the first proposal to incorporate a difference in treatment between nationals of non-EU countries directly into immigration law, ie, the Code de l'entrée et du séjour des étrangers et du droit d'asile (CESEDA).

Article 16 of the Bill introduces a breach of equality before the law based on the nationality and financial situation of applicants for long-stay visas.

This breach of the equality principle is justified on flimsy grounds: complications linked to Brexit, special ties between France and the UK etc.

Article 6 of the 1789 Déclaration des Droits de l'Homme et du Citoyen (DDHC) states: “The law is the expression of the general will. All citizens have the right to participate personally, or through their representatives, in its formation. It must be the same for all, whether it protects or punishes. All citizens, being equal in its eyes, are equally eligible for all public dignities, positions and jobs, according to their ability, and without any distinction other than that of their virtues and talents”.

It follows from the consistent case law of the CC that the principle of equality does not preclude the legislature from regulating different situations in different ways or from derogating from equality for reasons of general interest, provided that in either case the resulting difference in treatment is directly related to the purpose of the law establishing it.

In the present case, the provisions of Article 16 create a breach of equality between foreigners based on their nationality and financial means. The text targets an affluent group of the British population.

This breach of equality would make it easier for the wealthiest Britons to obtain visas and would be detrimental to the most disadvantaged and to non-British third country nationals, because of the new visa/migration quotas which have been introduced in the bill.

This leads to the implementation of a selective migration policy based on resources and nationality, a difference in treatment which cannot be justified by the general interest.

It is interesting to note that when the legal committee of the National Assembly examined this clause, they rejected it on these grounds.

Consequently, the text seems contrary to Article 6 of the DDHC.

Conformity with the Constitution

The absence of a link between Article 16 and the text initially tabled by the Government, is in breach of Article 45 of the Constitution which states: “Any bill or proposed law shall be examined successively in the two Houses of Parliament with a view to the adoption of an identical text. Without prejudice to the application of Articles 40 and 41, any amendment is admissible at first reading if it has a link, even indirect, with the text tabled or transmitted”.

The CC has consistently ruled: “It is for the Constitutional Council to declare provisions introduced in disregard of this procedural rule to be unconstitutional”

A text that has no connection with the law is called a "cavalier législatif" (legislative rider).

In this case, article 16 has no connection, even indirectly, with the bill tabled by the government, the purpose of which is, in the words of the President of the Republic in his referral to the Constitutional Council, "on the one hand, to provide new guarantees for foreign nationals who follow a high-quality integration program and, on the other hand, to speed up the procedures for removing from national territory those who commit serious offences, pose a threat to public order and do not respect the values of the Republic".

Failure to comply with Article 45 of the Constitution could therefore result in the withdrawal of this text by the CC.

Compatibility with European Union Law.

The European Union has shared competence to develop a common immigration policy.

This means that, on visa matters, the European Union can legislate, but this does not lead to Member States relinquishing their own powers, as we can see from the new immigration law.

To date, the EU has only legislated on short-stay visas.

Nevertheless, Member States have a duty of loyalty to exercise their powers in compliance with the acts and objectives of the Union's migration policy.

In the case law of the Court of Justice, equality appears as a structural principle of the European Union's legal order.

To be fully effective, the principle of equality in law obviously requires that similar situations be treated in the same way, but it also presupposes that persons in different situations be subject to different systems.

For the CJEU, a measure is indirectly discriminatory when, by applying neutral criteria a priori, it considers factors which may concern all individuals in the abstract, but which in practice are found to belong to a cohort identified on the basis of a prohibited criterion.

These principles have been reinforced by their inclusion in Chapter III of the Charter of Fundamental Rights of the European Union, notably Articles 20 and 21 covering equality before the law and non- discrimination.

Based on these principles, British nationals might not enjoy the same privileges as EU nationals.

The CJEU cannot be asked to give its opinion on Article 16 - it can only be asked by the national court in the context of a preliminary ruling, in order to interpret European Union law.

On the other hand, it is possible for Article 16 of the Bill to be reviewed in the light of European Union standards as part of a conventionality review based on Article 55 of the French Constitution which states "Treaties or agreements that have been duly ratified or approved have, from the time of their publication, an authority superior to that of laws, subject, for each agreement or treaty, to its application by the other party."

The French Constitution therefore expressly provides for international law to take precedence over domestic law.

In this context, the French courts can set aside the application of a law that they consider to be contrary to the stipulations of a treaty, even an earlier one.

On the other hand, the law will not be repealed immediately but will be paralysed.

As a result, if the text is not rejected by the CC, it may be rejected by the national court in a case where the text conflicts with an international text.

Application/Implementation

In reality, it would appear that those affected by this text will still be obliged to apply for a long-stay visa, but that the formalities will, ostensibly, be straightforward. The automatic nature of the procedure does, however, seem complex, as proof of ownership and British nationality will be required.

It is possible to imagine that proof of ownership of the property via the Ministry of Interior's online platform (without going through TLS Contact and then the French consulate) would be sufficient, with the possibility of downloading a visa without having to pay tax stamps.

It is also possible to imagine that, once the visa has been obtained, its period of validity and authorised length of stay would be longer than for other types of visa, and that renewing the visa would be made much easier.

But what about checks to ensure that there is no threat to public order or failure to respect the values of the Republic?

There is a significant risk that the real purpose of the visa may be misused since the text states that it is sufficient to be British and own a second home.

Under the French law the right to reside legally on French territory may be called into question, particularly if the foreign national behaves in a way that constitutes a threat to public order.

These checks are generally carried out at the time of application for renewal of the right of residence. Extending the periods of validity of visas therefore limits the possibilities for monitoring the behaviour of British nationals present in France.

For the time being, the procedure for obtaining this automatic visa is unknown, so this type of visa could not be implemented until a decree comes into force.

Anaïs PINSON is an avocat in France, specialising in immigration law, and provides advice and assistance in connection with visa and residency permits. She can be contacted at Visa Applications.