Immigration law applied to Overseas France
Overseas France consists of two different entities: 1) Overseas Departments and Regions (DROM) which are governed by Article 73 of the Constitution. This status concerns Guadeloupe, Martinique, Guyana, Reunion and Mayotte. 2) Overseas Communities (COM) are governed by Article 74 of the Constitution. This status concerns Saint-Pierre-et-Miquelon, Saint-Barthélemy, Saint-Martin, Wallis-and-Futuna and French Polynesia.
The law on immigration and asylum is different in DROMs - COMs than it is in the Metropol. The justifications for this derogatory right are based on Article 73(1) of the French Constitution of 1958, which makes it possible to adapt the law: "In the Overseas Departments and Regions, the laws and regulations are applicable as of right. They may be adapted to the particular characteristics and constraints of those communities". The Code of Entry and Residence of Foreigners and of the Right of Asylum (Ceseda) governs the entry and residence of foreigners in metropolitan France, Guadeloupe, Guyana, Martinique, Mayotte, Reunion, Saint-Pierre-et-Miquelon, Saint-Barthélemy and Saint-Martin. Admittedly, the Constitution requires that the rules remain the same in mainland France and in the DROM for nationality, civil rights, the organization of justice, criminal law and criminal procedure but in other areas there is specific legislative. Article 74 of the Constitution states that “the Overseas Communities governed by this article have a status that takes into account the interests of each of them within the Republic”. Wallis-and-Futuna, New-Caledonia (which has a sui generis status but is not a DROM-COM) and French Polynesia are governed by specific ordinances.
Regarding entry, DROMs and COMs are not located in the Schengen area. A foreigner who has obtained a Schengen visa will not be able to go to the DROMs-COMs and will have to ask for a specific visa for one DROM or COM in particular. For example, Brazilians are exempted from obtaining a visa to enter the Schengen area, but they will have to apply for a visa to enter Guyana. There may be exemptions depending on the reason and duration of stay.
The special regime applied to DROMs and COMs have usually unfavorable consequences for foreigners overseas, resulting in the restriction of their rights and freedoms and the deprivation of acquired rights in mainland France. Mayotte is having the most restrictive system because of the high risks of irregular immigration coming from neighboring Comoros. For example, residence permits issued overseas are valid everywhere on French territory, in accordance with Protocol 4 of the ECHR which states the freedom to come and go, except for Mayotte. The residence permits which are issued there are valid only on the island (Article L832-2 Ceseda). The issuance of residence permits faces a number of restrictions, particularly in Mayotte were a child who lives in Mayotte since he is 13 years old can only have a residence permit for family and private life if his parents are in a legal situation (exception to the Ceseda Article L313-11). Moreover, only in Mayotte is the issuance of a resident card linked to restrictive resource conditions. Additionally, there is no residence permit commission in Guyana, Saint-Martin or Mayotte (Article L312-3 Ceseda) which leads to considerably long procedures.
The regulations governing the entry of foreigners into New Caledonia, French Polynesia and Wallis-and-Futuna are different from those applicable in other overseas departments and communities. For stays under 90 days in a period of six months foreigners can benefit of visa free travel if they are from a country with which France concluded a visa exemption agreement or if the foreigner is holding a valid residence permit or long-stay visa issued by France or by a Schengen country. For stays longer than 90 days a visa is required for a specific COM.
Nationals of a country not being part of the European Union who hold a residence permit (one-year validity renewable for up to five years) delivered in New Caledonia, French Polynesia or Wallis-and-Futuna and wish to go to another French territory (metropolitan France or DROM-COM) will need a short-term visa unless they are visa exempted for stays up to three months. For longer stays the foreigner will have to get a long-term visa. Nationals of a country not being part of the European Union who hold a residence card (after five years of permanent residency on the island) do not need a visa to enter and stay in Metropolitan France, DROMs or COMs.
Finally, there is a difference made in nationality law for children born in Mayotte. In all cases the rule is that “any child born in France of foreign parents acquires French nationality by his majority if, at that date, he has his residence in France and if he has had his habitual residence in France for a continuous or discontinuous period of at least five years since the age of eleven” (Article 21-7 of the Civil Code). However, the new French immigration law which is entering fully into force on March 2019 foresees hardening access to French nationality through jus soli in Mayotte, adding the following requirement: “at the date of birth, at least one of the parents resided in France on a regular basis, under cover of a residence permit, and uninterruptedly for more than three months” (Article 2493 of the Civil Code).
Author: Dr Fanny Tittel-Mosser