Is the 1968 Franco-Algerian Agreement on the brink of collapse?
Once again blamed for the “failure” to manage Algerian immigration,the 1968Franco-Algerian Agreement has also recently come under fire from former Prime Minister Édouard Philippe, who announced in early June that he was considering withdrawing from it.
Hocine Zeghbib, University of Montpellier
Born out of the specific historical circumstances surrounding the Evian Accords, the 1968 Agreement aims to reorganize the post-independence movement of people between the two countries. The Council of State recognized its specific nature and concluded that, with regard to the matters it addresses, the general rules of common law set forth in the Code on the Entry and Residence of Foreigners and the Right of Asylum (Ceseda) do not apply to Algerian nationals. Nevertheless, the 1968 Agreement has not escaped the influence of the Ceseda through the three amendments it has incorporated.
What kind of outrageous rights does it grant today that we must put an end to it? Is this scenario—which carries the risk of serious diplomatic and humanitarian complications—legally feasible?
Interests that were not clearly identified at the outset, but were quickly redefined
The Evian Accords of March 18, 1962, state: “Unless otherwise ordered by a court, 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 exodus of the summer of 1962 decided otherwise. Freedom of movement, which had not always been granted to them despite their status as subjects and later French nationals, ultimately and primarily benefited the “former indigenous” Algerians.
In 1963, a policy was introduced to impose quotas on the number of Algerian workers traveling to France. An agreement was reached in 1964 to limit their numbers. Decided by mutual consent of the two countries (a contractual agreement) for a fixed term, the restriction applied only to wage-earning workers. This agreement was terminated in 1966. https://www.youtube.com/embed/GKNennlBIm8?wmode=transparent&start=0
This was followed by the signing on December 27, 1968, of the Franco-Algerian Agreement on the movement, employment, and residence in France of Algerian nationals and their families.
A downward trend in the level of protection
The Agreement aims to reduce the immigration of wage-earning workers. It sets a revisable annual quota of 35,000 workers, each of whom must find a job within nine months to be eligible for a five-year residence permit. An “Algerian Residence Certificate” (CRA), valid for 5 years but subject to reduction in the event of unemployment, is issued to salaried or self-employed workers and to Algerians residing in France who have 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 for Algerians “traveling to France without the intention of engaging in salaried employment there.”
In September 1973, Algeria decidedto halt labor migration to France. In 1974, France decided to suspend all immigration. In the wake of this, the government set a goal of repatriating 500,000 Algerians over a five-year period. The difficult negotiations of 1978–1979 scaled back this objective. Measures for “voluntary return” were implemented, but with little success. In 1983, a new agreement restricted free 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 the general immigration law of the time. The amendment adopted the durations of residence permits: 1 year and 10 years. Freedom of establishment for self-employed professionals and freedom of movement for tourists were maintained. This amendment, however, marked the beginning of the gradual erosion of the 1968 Agreement.
The introduction of a visa requirement for entry into France in 1986 dealt a severe blow to this. This, in turn, triggered the introduction of a visa requirement for entry into Algeria. “Free movement” has since been dependent on visa policy.
The 1994 amendment, supplemented by an exchange of letters, limits the period of absence from the country to three years, failing which the CRA will expire. In addition to a visa, private and family visits are subject to the presentation of a certificate of accommodation, proof of financial means, and a round-trip 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. Nicolas Sarkozy’s election as president reignited criticism, and in late 2010, a draft of a fourth amendment—which was never implemented—was discussed.
A protection level assigned by Ceseda
While the 1968 Agreement remains the benchmark for the rules governing Algerian immigrants, it does not exempt them from the procedural rules of the Ceseda that apply to all foreign nationals. Measures such as removal, inspections, and sanctions, as well as the right to asylum, also apply to them, as these are not covered by the 1968 Agreement.
What remains of the 1968 Agreement that would justify harsh criticism and calls to denounce it?
Without claiming to be exhaustive, we will highlight a few significant specific advantages. For instance, freedom of establishment. An Algerian with a commercial or artisanal project does not have to prove the viability of their business prior to obtaining their first residence permit. This is not the case for foreigners covered by the Ceseda. An Algerian can obtain a 10-year residence permit after one year of legal residence, whereas three years are required for foreigners subject to the Ceseda. The Algerian spouse of a French national can obtain a residence permit as soon as they enter France with a short-stay visa. The Ceseda requires a long-stay visa.
Conversely, certain benefits resulting from laws passed since 2004 are granted to Algerians only in exceptional cases. This is true of the “regularization through employment” of undocumented immigrants and the regularization on “humanitarian grounds” provided for in the 2004 law. Algerian students must renew their residence permits annually, as they are not eligible for the multi-year Ceseda permit. If they find themselves in an irregular situation, 15 years of residence are required for potential regularization, compared to 10 years for other foreigners. In terms of student employment, the permitted work hours are fewer than those allowed under the Ceseda program. Under the Ceseda family reunification program, the long-stay visa of the joining family member is valid as a one-year residence permit. An Algerian joining their family with the same type of visa must go to the prefecture within two months of arrival to apply for their first residence permit.
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Overall, while the Franco-Algerian Agreement still offers some advantages, it no longer provides the same level of protection, as its original provisions have been eroded over time by 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 concluded on this matter, with the notable difference that the latter cover only a few specific points.
A legally unsound complaint
Under the principle of pacta sunt servanda, the parties to a treaty are bound to comply with it. A treaty may be legally terminated only if certain essential conditions are met. The existence of a clause providing for its termination is the primary such condition. The 1968 Agreement does not contain such a clause.
However, it does contain Article 12, which establishes a joint Franco-Algerian commission. This commission is responsible for monitoring the implementation of the Agreement and resolving any difficulties that arise. The negotiators intended for all such difficulties to be resolved by this commission. The termination clause was therefore deliberately omitted.
The argument based on the nature of the treaty—which implies its “natural expiration” once its objectives have been achieved—is no less tenuous. This text, in fact, derives from the Evian Accords. As such, it contributes to the continuation of bilateral relations that the signatories intended to be long-lasting.
Finally, denouncing the agreement would restore the status quo ante—that is, the rights established by the Evian Accords—and thus, legally speaking… the free movement of Algerians between Algeria and France! What, then, is the point of denouncing this agreement, unless it is to pursue a specific political objective?
Hocine Zeghbib, Honorary Senior Lecturer (HDR), Paul-Valéry University of Montpellier III, Researcher at CREAM—Faculty of Law, University of Montpellier, University of Montpellier
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