By Jules Lepoutre, Professor of Public Law at the Côte d’Azur University
What does it mean to eliminate “soil law” or put an end to its “automaticity”?
This is in fact what emerges both from the program of the National Rally and from the recent programmatic declarations of Jordan Bardella where he declared “I intend to suppress the law of the soil […]. The automatic acquisition of French nationality is no longer justified. The problem is that “droit du sol” and “automaticity” are ambiguous terms that do not exist in the law. Long used to clarify a debate that is admittedly quite technical, the opposite is increasingly happening: these terms now obscure a discussion on the ways in which one becomes French.
One thing is certain at this stage: removing soil law means that being born on French soil will no longer mean anything on a legal level, for everyone, children of French parents as well as foreigners. The national territory disappears in favor of filiation, that is to say the right of French “blood”.
There are thus two mechanisms which date back, at least, to the 19th century which would be directly concerned: article 19-3 of the civil code which provides that “a child born in France is French when at least one of his parents was himself born there” (we sometimes speak of double right of soil, that is to say birth in France by two successive generations); article 21-7 of the civil code which provides that a child born to foreign parents in France “acquires French nationality upon reaching the age of majority” on the condition of five years of residence on the national territory since the age of eleven (we sometimes speak of of “simple” land law). Here, it is the idea of “soil rights” which is misleading since, as we can clearly see, birth alone is not enough Never to be French, as is the case for example in the United States. There are always other conditions, either linked to the birth on French soil of a parent, or linked to the residence and age of the child.
The idea of “automaticity” is still doubly misleading. For article 19-3 of the civil code (“double” law of the soil), it is not so much the automaticity which is salient as the obligatory nature. It is a way for the State to seize the child born on its soil, of a parent who was himself born there, presuming that he is definitively established in France – moreover for reasons of sovereignty, we will come back to that. For article 21-7 of the civil code, the majority of children “claim” French nationality before reaching the age of majority, either through their parents from the age of 13, on the condition of residence since the age of eight. , or themselves from the age of 16, again under the same condition of five years of residence. In 2022, according to the latest figures available, 32,000 anticipated claims before reaching the age of majority were recorded, compared to only 2,500 acquisitions “without formality”, that is to say without a claim from the individual. The idea of “automaticity” therefore poorly defines the concrete functioning of our nationality law. The will, of the State as well as of the individual, is everywhere.
What would be the consequences of abolishing land rights?
The main problem with the abolition of land law paradoxically lies at the level of all French people, and not just foreigners as one might too quickly imagine. For most French people, dual law makes it easy to prove one’s nationality. To do this, when applying for a passport or identity card, you simply need to provide your civil certificate indicating birth on French soil, and that of a parent including the same statement. That’s all. This successive double birth makes the individual a Frenchman from birth. As soon as land law, in all its forms, is abolished, this easy method of proof immediately disappears for future generations. To prove their French nationality, future children will have to obtain the birth certificates of their parents, grandparents, and later still great-grandparents, etc., to show that they were French and that, as descendants, they are still so by descent. This is a massive increase in the complexity of our law and there is no indication that the administration or citizens are prepared for it.
For foreigners themselves, the abolition of the land law would deprive them of their right to acquire French nationality, under the (many) conditions previously described. Maintained in the situation of foreigners on the soil where they were born, they will have to turn to naturalization to become French. It is a more random procedure, mainly in the hands of the prefectures, which leaves room for broad discretionary power. In its program, the National Rally also plans to make this path to nationality “very strict”, the figures for which have continued to collapse since the presidency of Emmanuel Macron.
There are therefore tens of thousands of individuals who could no longer access French nationality each year, due to lack of sufficient income, a permanent contract, excellent command of the written French language, etc., all conditions and criteria, among others, set by texts and practices largely in the hands of the government. Paradoxically in view of the ambitions of the National Rally, the number of foreigners present in France would thus increase each year, and with it a certain obstacle to French sovereignty through the intervention in “protection” of their States of nationality. It would be the return of “foreign enclaves” which precisely justified, in the 19th and 20th centuries, the consolidation of land rights in the name of French sovereignty over its population.
The drastic restriction of naturalization and the abrogation of land law would thus enclose the French community unprecedented in Europe. Because if other countries have chosen not to apply the law of soil and to confine themselves to the law of blood, it is always by adopting an open naturalization policy, as in Sweden or Italy where the naturalization rates remain much more important than in France.
It is not said that our Constitution is not opposed to such a development, but the time for litigation has not yet come. It is more necessary than ever at this stage that the terms of the debate are known, as well as its consequences which go far beyond foreigners alone.
