"François Hollande abolished the offense of illegal residence in France [. . .] When you enter France illegally, it is against the law – it must be reestablished." French Interior Minister Bruno Retailleau sought to revive the "offense of illegal residence" in September on the television channel TF1, shortly after his appointment.

Since then, the minister has spoken in favor of reviving the law on several occasions. "[Reinstating the offense of illegal stay] will give us back investigative powers which will allow us to carry out identification when we have mobile phones for example, and to fight more effectively against illegal networks,” said Retailleau during a visit to Pas-de-Calais in September.

He later vowed to include the measure in the new immigration law which Prime Minister Michel Barnier’s government hopes will be submitted to parliament at the beginning of 2025. 

EU Return Directive

The offense of illegal residence existed in French law until 2012 and consisted of punishing those found in an irregular situation on French territory with a fine or a prison sentence. These measures were concluded with "administrative measures like expulsion", according to the legal news media Les Surligneurs.

"François Hollande abolished the offense of illegal residence in 2012 because of pressure from the European Union (EU)," said Tania Racho, a researcher on European law and member of Désinfox-Migrations.

In 2008, the EU adopted a "Return Directive" which allowed people in irregular situations a certain delay to voluntarily leave the country before launching administrative procedures.

Also read: France: New government measures to regularize undocumented migrants

"Soon [after the directive’s adoption], an EU judge ruled that those in an irregular situation couldn't be convicted because it implied they would stay on the territory longer than necessary," said Racho, emphasizing that "the objective was to avoid delaying the return of the person to his country".

In France, criminal prosecutions were replaced by the placement of undocumented people in administrative detention centers (CRA).

An incentive to avoid irregular situations

Despite European regulations, the revival of the illegal residence offense regularly comes up in the promises of right-wing and far-right politicians who "see it as incentivizing to avoid irregular situations," said Racho.

Right-wing deputies tried to include the measure in the immigration law of January 2024, but it was struck down by the Constitutional Council.

Deputies from Les Républicains (LR) have since then tabled a bill on the subject on February 13, 2024. This "would reinstate the offense of illegal residence but 'the sanction is limited to a fine and an additional penalty of expulsion’. Yet by imposing a fine, the convicted person could later appeal. This new procedure would then extend the period of detention on the territory," according to Les Surligneurs.

A new law in 2025

Retailleau hopes to succeed where his predecessor failed. The minister plans to present a new immigration law later this year even though a text was already adopted in December 2023.

Also read: 'I'm afraid for my future': New immigration law in France throws migrants into disarray

The measures of the 2023 law struck down by the Constitutional Council "will serve as a basis for the new bill on immigration," a government source told AFP. "Some could be modified and there will be additions."

The left has already expressed outrage that a new immigration law is in preparation.

Thirty-two immigration laws have been adopted in France since 1980, according to the Musée National de l'Histoire de l'Immigration (National Museum of Immigration History).