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 Édouard Philippe, who announced in early June that he was considering terminating it.
Hocine Zeghbib, University of Montpellier
Born out of specific historical circumstances linked to the Evian Accords, the 1968 Agreement aims to reorganize the post-independence movement of persons between the two countries. The Council of State noted its specific nature and concluded that, on the subjects it deals with, the general rules of common law set out in the Code on the Entry and Stay of Foreigners and the Right of Asylum (Ceseda) do not apply to Algerian nationals. However, the 1968 Agreement has not escaped the influence of the Ceseda through the three amendments it has incorporated.
What rights are so excessive that they must be abolished? Is this hypothesis, fraught with serious diplomatic and human difficulties, legally feasible?
Interests that were poorly identified at the outset, but quickly redefined
The Evian Accords of March 18, 1962, state: "Unless otherwise decided by a court of law, any Algerian with an identity card is free to travel between Algeria and France." These agreements guarantee "Pieds-noirs" who choose Algerian nationality the right to move freely between the two countries. The mass departures of the summer of 1962 decided otherwise. Freedom of movement, which was not always granted to them even though they were French subjects and then French nationals, ultimately benefited mainly the "former indigenous" Algerians.
In 1963, a policy was introduced to limit the number of Algerian workers traveling to France. An agreement was reached in 1964 to restrict their numbers. Decided by mutual consent between the two countries (contractual agreement) for a fixed period, the restriction only applied to salaried 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 salaried workers. It sets a revisable annual quota of 35,000 workers, each of whom must find a job within nine months in order to obtain a five-year residence permit. An "Algerian residence certificate" (CRA), valid for five years but which may be reduced in the event of unemployment, is issued to salaried or non-salaried workers and to Algerians residing in France who have sufficient resources. A 10-year CRA is issued to Algerians who have already been present for 3 years. It preserves the free movement of Algerians "traveling to France without the intention of engaging in salaried professional activity."
In September 1973, Algeria decidedto halt labor migration to France. In 1974, France decided to suspend all immigration. In the wake of this, the repatriation of 500,000 Algerians over five years was added to the government's agenda. Difficult negotiations in 1978-1979 limited this objective. Measures for "voluntary return" were taken, but without much effect. 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 common law governing foreigners at the time. The amendment transposed the duration of residence permits: 1 year and 10 years. Freedom of establishment for self-employed professionals and freedom of movement for tourists were maintained. However, this amendment marked the beginning of the gradual erosion of the 1968 Agreement.
The introduction of an entry visa for France in 1986 dealt a severe blow to this system. This triggered the introduction of a reciprocal entry visa for Algeria. From then on, "free movement" became dependent on visa policy.
The 1994 amendment, supplemented by an exchange of letters, limits absence from the territory 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 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 Chevènement Law of 1998, which was generally more favorable to foreigners. It froze the status of Algerians at the time. Nicolas Sarkozy's arrival as president reignited criticism, and at the end of 2010, a draft fourth amendment, which was never implemented, was discussed.
A level of protection affected by Ceseda
Although the 1968 Agreement remains the benchmark for rules governing Algerian immigrants, it does not exempt them from the procedural rules of the Ceseda applicable to all foreigners. Removal measures, controls, sanctions, and asylum rights also apply to them, as these are not included in the 1968 Agreement.
What remains of the 1968 Agreement that would justify harsh criticism and calls to denounce it?
Without being exhaustive, we will highlight a few specific advantages that are not insignificant. For example, freedom of establishment. An Algerian citizen with a commercial or craft project does not have to prove the viability of their business before 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 a foreigner covered by the Ceseda needs three years. The Algerian spouse of a French citizen can obtain a residence permit as soon as they enter France with a short-stay visa. The Ceseda requires a long-stay visa.
On the other hand, certain benefits resulting from laws passed since 2004 are only available to Algerians in exceptional cases. This is the case with the "regularization through work" of 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-year Ceseda permit. If they find themselves in an irregular situation, they must have been present in France for 15 years to be eligible for regularization, compared to 10 years for other foreigners. In terms of student employment, the working hours allowed are less than those under the Ceseda. Under the Ceseda family reunification program, the long-stay visa of the joining family member is equivalent to a one-year residence permit. Algerians joining family members with the same type of visa must go to the prefecture within two months of their arrival to apply for their first residence permit.
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Overall, although the Franco-Algerian Agreement retains some advantages, it no longer offers the same level of protection, as its original content has been eroded by successive amendments and the increasing complexity of the specific procedures imposed on Algerians under the CESEDA. Its value lies in the fact that the substantive rules governing Algerians cannot be modified unilaterally. In this respect, it is no different from other bilateral agreements concluded in this area, with the notable difference that the latter only cover a few specific points.
A legally unsound denunciation
According to the principle of pacta sunt servanda, the parties to a treaty are bound to perform it. A treaty may be legally terminated only if certain essential 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 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 may arise. The negotiators wanted all difficulties to be resolved by this commission. It was therefore a deliberate decision not to include a termination clause.
The denunciation based on the nature of the treaty, which implies its "natural extinction" once its objectives have been achieved, is no less risky. This text originates from the Evian Accords. As such, it contributes to the pursuit of bilateral relations designed by the signatories to be long-lasting.
Finally, its denunciation would result in restoring the status quo ante, i.e., the rights arising from the Evian Agreements, and therefore, in law... the free movement of Algerians between Algeria and France! What benefit, then, would there be in denouncing this agreement, except to pursue a singular political objective?
Hocine Zeghbib, Honorary Senior Lecturer, Paul-Valéry-Montpellier III University, researcher at CREAM-Faculty of Law, Montpellier University, University of Montpellier
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