Limitations of the Right to a Normal Family Life: Evolution and Judicial Precedents in France.
Download
Read an extract
Themes
Right to a normal family life, Council of State, GISTI ruling 1978, general principle of law, fundamental rights of foreigners, family reunification, constitutional value, Constitutional Council, administrative judge, public order, private and family life residence permit, Code on the entry and stay of foreigners, protection of foreigners, judicial limitations, legislative policies, foreign worker rights, constitutional principles, supra-legislative value, foreigner status protection, administrative police policies, landmark ruling, judicial precedents, role of the judge, fundamental freedoms, rights of constitutional value, preservation of public order, conciliation of rights and freedoms, Constitutional Council decision 1993, Council of State Assembly, foreigner rights law, residence permit, asylum law, entry and stay of foreigners, normal family life principle, judicial protection, government policies, administrative law, French law, foreigner family reunification, constitutional judge, legislative respect for fundamental rights.
Reader
Abstract
Extract
of 5
Abstract
Discover the landmark 1978 GISTI ruling by the Council of State, establishing the right to a normal family life as a general principle of law for foreigners in France. Learn how this pivotal decision has shaped the protection of foreigners' rights, despite subsequent limitations and government policies. Understand the role of the administrative judge in balancing fundamental rights with public order, and explore the evolution of this principle into a constitutional value recognized by the Constitutional Council in 1993. Dive into the nuances of French law and the Council of State's guardianship of its principles, including the right to a normal family life, now codified in the Code on the entry and stay of foreigners and the right of asylum.
Extract
[...] So, a new draft decree is established in 1977 which provides that the foreigner will always be able to bring the members of his family but they will not have the right to present themselves on the French labor market. That's why the government decided to suspend for 3 years the decree of 1976. But this decree is a misunderstanding of the right to work inscribed in the Preamble to the Constitution of 1946 : each has the right to work and the right to obtain employment. So the administrative judge decides, by the GISTI ruling of 1978 to consecrate a general principle of law: the right to a normal family life. [...]
[...] Later in a decision of 2024, The Constitutional Council considers that the legislator must respect the fundamental freedoms and rights of constitutional value recognized to all those who reside on the territory of the Republic, but these fundamental rights and freedoms must be reconciled with the safeguard of public order, which is a constitutional value. It also specifies that foreigners acquire social protection rights as soon as they reside in a stable and regular manner on French territory. Therefore, there is a certain concern among French judges about the field of foreigners' law not to counteract government policy while trying to protect these rights. This is where the limits of the French judicial system are visible in the field of foreigners' law. [...]
[...] However, in the same decision, it mitigates the impact of these declarations by adding that these constitutional principles with regard to foreigners are not absolute and that the entry and stay of foreigners can be restricted by administrative police measures. Thus, like the Council of State, the Constitutional Council does not want to encroach on administrative police measures that have the major mission of safeguarding public order. So it acts as guardian of this principle of the right to a normal family life while limiting its scope of application so as not to hinder the power of administrative police. The two judges find themselves in the same situation where they proclaim themselves guardians but must limit their protective power. [...]
[...] The limited consecration of the constitutional principle of the right to a normal family life by the constitutional judge in 1993 In this decision of 13 August 1993, the constitutional judge specified that the legislator had to "respect the fundamental freedoms and rights of constitutional value recognized to all those who reside on the territory of the Republic". He specified that among these rights and freedoms is the right to lead a normal family life, thus recognizing this right as a constitutional principle. [...]
[...] This has given rise to significant administrative and constitutional jurisprudence that has limited the right of foreigners to a normal family life. II. A protection of the rights of foreigners nuanced by subsequent judicial limitations following the 1978 ruling This protection granted by the administrative judge is limited by its duty of conciliation between the protection of fundamental rights and freedoms and government policies, and notably administrative police policies that ensure the preservation of public order. It is then a matter of developing the limitation of the principle of the right to a normal family life consecrated by the Council of State itself in order to conclude on the limiting consecration of the constitutional value principle of the right to a normal family life by the constitutional judge in 1993 A. [...]
