Is the 1968 Franco-Algerian Agreement on borrowed time?
Once again blamed for the "failure" of Algerian immigration management, the 1968Franco-Algerian Agreement was also recently criticized by former Prime Minister Edouard Philippe, who announced in early June that he was considering denouncing it.
Hocine Zeghbib, University of Montpellier
Born of specific historical circumstances linked to the Evian Agreements, the 1968 Agreement aims to reorganize the post-independence movement of people between the 2 countries. The Conseil d'Etat has noted its specific nature, concluding that the general rules of common law set out in the Code de l'entrée et du séjour des étrangers et du droit d'asile (Ceseda) do not apply to Algerian nationals in the areas covered by the Agreement. However, the 1968 Agreement has not escaped the influence of the Ceseda through the 3 amendments it has incorporated.
What rights are so exorbitant that they must be done away with? Is the hypothesis, fraught with serious diplomatic and human difficulties, legally feasible?
Initially misidentified interests quickly redefined
The Evian Accords of March 18, 1962, state that "except in the case of a court decision, any Algerian in possession of an identity card is free to travel between Algeria and France". These agreements guaranteed "Pieds-noirs" who chose Algerian nationality the right to move freely between the two countries. The mass departures of summer 1962 decided otherwise. Free movement, which was not always granted to them even though they were French subjects and then nationals, ultimately and essentially benefited "ex-indigene" Algerians.
A policy of limiting the number of Algerian workers coming to France began in 1963. An agreement was signed in 1964 to limit the volume. Decided by mutual consent of the 2 countries (contractual agreement) for a fixed period, the limitation only concerned salaried workers. The agreement was terminated in 1966. https://www.youtube.com/embed/GKNennlBIm8?wmode=transparent&start=0
This was followed on December 27, 1968 by the signing of the Franco-Algerian Agreement on the movement, employment and residence in France of Algerian nationals and their families.
A downward trend in protection levels
The Agreement aims to reduce the immigration of salaried workers. It sets a revisable annual quota of 35,000 workers, each of whom must find a job within 9 months to qualify for a 5-year residence permit. An "Algerian residence certificate" (CRA), valid for 5 years and subject to reduction in the event of unemployment, is issued to salaried or self-employed workers and to Algerians residing in France with sufficient resources. A 10-year CRA is issued to Algerians who have already been in France for 3 years. It preserves the freedom of movement of Algerians "going to France without the intention of carrying out a salaried professional activity".
In September 1973, Algeria decided tohalt labor emigration to France. In 1974, France decided to suspend all immigration. At the same time, the deportation of 500,000 Algerians over 5 years became part of the government's agenda. The difficult negotiations of 1978-1979 restricted this objective. Measures for "voluntary return" were taken, with little effect. In 1983, a new agreement restricted freedom of movement for private or family visits.
In 1985, the first amendment to the 1968 agreement was signed. Its level of protection was virtually identical to that of the common law for foreigners at the time. The rider transposed the duration of residence permits: 1 year and 10 years. Freedom of establishment for self-employed workers and freedom of movement for tourists are maintained. However, this amendment marked the starting point for the gradual erosion of the 1968 Agreement.
The introduction of the French entry visa in 1986 was a severe blow. This triggered the reciprocal introduction of an entry visa for Algeria. From then on, "free movement " was dependent on visa policy.
The 1994 rider, supplemented by an exchange of letters, limits absence from the country to 3 years, on pain of expiry of the ARC. In addition to a visa, private and family visits are subject to the production of a certificate of accommodation, proof of resources and a return ticket. https://www.youtube.com/embed/0XZAULuySyo?wmode=transparent&start=0
In 2001, a final amendment brought the Agreement into line with the 1998 Chevènement law, which was generally more favorable to foreigners. It froze the status of Algerians as it stood at the time. The arrival of Nicolas Sarkozy as President rekindled criticism and, at the end of 2010, a proposal for a fourth rider was discussed.
A level of protection affected by Ceseda
While the 1968 Agreement remains the yardstick for rules governing Algerian immigrants, it does not exempt them from the procedural rules of the Ceseda, applicable to all foreigners. They are also subject to deportation measures, controls and sanctions, and to the right of asylum, since these are not included in the 1968 Agreement.
What remains of the 1968 Agreement to justify harsh criticism and calls for it to be scrapped?
Without being exhaustive, we would like to point out a few specific, non-negligible advantages. For example, freedom of establishment. Algerians with commercial or craft projects do not have to prove the viability of their activity before obtaining their first residence permit. This is not the case for foreigners covered by the Ceseda. Algerians can obtain a 10-year residence permit after 1 year's legal residence, whereas foreigners under the Ceseda require 3 years. The Algerian spouse of a French national can obtain a residence permit if he or she enters France on a short-stay visa. The Ceseda requires a long-stay visa.
On the other hand, some of the advantages brought about by laws passed since 2004 only benefit Algerians by way of exception. Such is the case for "regularization through work" for undocumented migrants, or regularization on "humanitarian grounds" under the 2004 law. Algerian students must renew their residence permits every year, as they are not eligible for the multi-annual Ceseda permit. If they find themselves in an irregular situation, 15 years of presence are required for hypothetical regularization, compared with 10 years for other foreigners. In terms of student employment, the authorized working time is shorter than under the Ceseda. Under the Ceseda family reunification scheme, the long-stay visa of the joining family member is equivalent to a 1-year residence permit. Algerian family members holding the same type of visa must go to the prefecture within 2 months of arrival to apply for their first residence permit.
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On the whole, the Franco-Algerian Agreement, while retaining a number of advantages, is no longer so protective, its original content having been eroded by a series of amendments and the growing complexity of the specific Ceseda procedures that also apply to Algerians. Its value lies in the fact that the substantive rules governing Algerians cannot be unilaterally modified. In this respect, it is no different from other bilateral agreements in this field, with the notable difference that the latter cover only a few specific points.
A legally insecure denunciation
According to the principle of pacta sunt servanda, the parties to a treaty are bound to perform it. A treaty can only be legally terminated if certain sine qua non conditions are met. The main condition is the existence of a clause providing for termination. The 1968 Agreement does not contain such a clause.
However, it does contain an article 12 creating a joint Franco-Algerian commission. This commission is responsible for monitoring application of the Agreement and resolving any difficulties. Its negotiators wanted any difficulties to be settled by this commission. The denunciation clause was therefore deliberately omitted.
The denunciation based on the nature of the treaty, which implies its "natural extinction" once its objectives have been achieved, is no less risky. In fact, the treaty's source is the Evian Agreements. As such, it is part of the continuation of bilateral relations designed by the signatories to be long-lasting.
Finally, its denunciation would have the consequence of restoring the status quo ante, i.e. the rights stemming from the Evian Accords, i.e., in law... the free movement of Algerians between Algeria and France! What then is the point of denouncing this agreement, except to pursue a singular political objective?
Hocine Zeghbib, Honorary Senior Lecturer HDR, Université Paul-Valéry- Montpellier IIII, researcher at CREAM - Faculty of Law, Université Montpellier, University of Montpellier
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