Asked about the measures he intended to take regarding immigration, the new Minister of the Interior, Bruno Retailleau, estimated that legislative adaptations could be necessary. Nevertheless, the minister indicated that he would use his “regulatory power to go to the end of what we can do”, adding that he could “go quite far”, and in particular on the reform of State Medical Aid (AME).
Last year, during the debates on the immigration law, the LR group advocated for a transformation of the AME into Emergency Medical Aid, thereby restricting its scope. An amendment, brought by Bruno Retailleau’s LR group, providing for the replacement of the AME had also been voted on in the Senate last year. The measure had finally been abandoned and the Prime Minister at the time, Élisabeth Borne, had promised a reform of the AME by regulatory means, on the basis of the Evin-Stefanini report. A key issue for the right, the abolition of AME should not, however, be possible by decree. At the time of the negotiations for the adoption of the immigration law, the right had obtained a certain number of concessions from the government (aimed in particular at restricting access to personalized housing assistance or personalized autonomy allowance), before these measures are censored by the Constitutional Council.
On the AME, “the margins are relatively low”
“The Minister of the Interior’s room for maneuver in regulatory matters constitutes a major constitutional question: that of the distribution of powers between the Government and Parliament in legislative matters, that of the reconciliation of Articles 34 and 37 of the Constitution. In principle, as soon as a freedom is affected, it is up to Parliament to intervene,” says Marie-Laure Basilien Gainche, professor of public law at the University of Lyon 3. In addition, State Medical Aid, created by a lawcan only be removed by another law.
“For AME, a law is needed, and moreover, its removal would be contrary to the Constitution. The change to Emergency Medical Aid is possibly possible, subject to respecting the Constitution, but here again this requires a law. The margins are relatively small,” believes Serge Slama, professor of public law at the University of Grenoble-Alpes. “Some things can be done, but on the margins,” confirms Tania Racho, a doctor of European law and specialist in immigration law. However, with regard to AME, it is possible to modify by decree certain provisions affecting the eligibility of people for the system.
In its draft AME reform by decree, the previous government considered including the resources of the spouse (French or foreign in a regular situation) in the resource criteria giving entitlement to AME. However, AME is reserved for people earning less than 847 euros per month. “The Minister of the Interior can potentially act by regulatory means, in particular on the calculation of eligibility criteria,” confirms Tania Racho.
Marginal adjustments in compliance with constitutional and conventional obligations
Generally speaking, the regulatory authority must respect the constitutional and conventional obligations set out in the Charter of Fundamental Rights of the European Union and the European Convention on Human Rights. Consequently, the room for maneuver is limited. “The European framework regulates a certain number of situations, on family reunification for example,” recalls Tania Racho. The amendments made by decree cannot therefore affect fundamental rights such as the right to access health prevention and to benefit from medical care. “The main obstacle for the Minister of the Interior is fundamental rights,” assures Serge Slama.
The Minister of the Interior does, however, have the possibility of modifying regulatory provisions relating to immigration. In an opinion dated 26 January 2023, the Council of State considered that it was possible to modify, by decree, the level of language required (based on the European Framework of Reference for Languages) to obtain a residence permit. In addition, “there is possibly the possibility of modifying implementing decrees, in particular those of the Darmanin law”, envisages Serge Slama.
“Within the framework of his hierarchical power, the Minister of the Interior can affect the conditions of regularization”
Beyond the sole regulatory power, Bruno Retailleau stated that he wanted to “bring together the 10 prefects of the departments where there is the most migratory disorder to ask them to expel more and regularize less.” obligations to leave French territory (OQTF) and regularization decisionsin particular, are administrative measures taken by the prefects who are themselves placed under the hierarchical authority of the Minister of the Interior. In this context, the Minister can publish circulars, which do not fall under the regulatory power, to interpret the normative provisions. “Within the framework of his hierarchical power, the Minister of the Interior can give instructions to the prefects, he can touch on the conditions of regularization which is a discretionary power of the prefects”, affirms Serge Slama. Regularization can be done through work, for reasons related to family reunification or for other reasons. In 2012, the Valls circular set criteria to standardize the processing of requests made to the prefectures. In order to “expel more and regularize less”, the Minister of the Interior could therefore proceed by circular.
However, if France is one of the countries in the European Union that issues the most OQTFs, it is also the one that observes one of the lowest execution rates. The main reason for this low execution rate is the lack of issuance of consular passes by the countries to which the return is made. “We have a new Minister of the Interior who is holding the same discourse as his predecessors since Charles Pasqua on immigration and the result will be identical,” Serge Slama says ironically.
