The government announced on February 5, that it was ready to support a measure proposed by the Minister of the Interior in favor of reinstatement of the offense of illegal residence. This offense was abolished in 2012, and struck down from the last immigration law by the Constitutional Council.
"I think that we should reinstate the offense of illegal residence. When you enter France illegally, it is against the law." As early as September 2024, Bruno Retailleau, who had just been appointed Minister of the Interior in Michel Barnier's government, began speaking out in favor of reinstating the offense of illegal residence, in this instance on the French public broadcast television channel TF1.
Since then, he has spoken out in favor of its restoration on several occasions. Like last November, during his brief visit to the Pas-de-Calais region, from where many migrants attempt to cross towards the UK. "[Reinstating the offence of illegal residence] will give us back investigative powers that will allow, for example, when we have mobile phones, to carry out identification and also to fight much more effectively against illegal networks," he declared at the time.
The minister stressed that he wanted to include this measure in the new immigration law that should be presented to Parliament in early 2025.
Read AlsoFrance: Rise in deportations and stricter migration controls by government
EU 'Return Directive'
The offense of illegal residence existed in French law until 2012 and consisted of criminally punishing -- with a fine or a prison sentence -- the fact of being in an irregular situation on French territory. These criminal measures were supplemented by "administrative measures such as expulsion", news media Les Surligneurs explained last October.
"[Former Socialist French President, between 2012 and 2017] François Hollande abolished the offense of illegal residence in 2012 because the European Union (EU) pushed him to do so", Tania Racho, a researcher in European law and member of Désinfox-Migrations [a collective of media professionals and engaged civil society who want to provide information and counter disinformation about migration, to promote more informed debate, they say on their website], explained to InfoMigrants.
In 2008, the EU adopted a "return directive" providing for a period of time for people in an irregular situation to voluntarily leave the country where they are before that country began initiating administrative procedures.
"Quickly [after the adoption of the directive], the EU judge said that we could not sanction the irregular situation because that would mean that the person would stay in the territory longer than necessary," Tania Racho recalled, stressing that "the objective [of abolishing the law] was that it would not slow down the person's return to their country".
In France, criminal prosecutions were then replaced by the detention of people in an irregular situation in an administrative detention center (CRA).
Read AlsoFrance: Exhibition shines a light on human migration
An incentive measure for the right
Despite European regulations, the re-establishment of the offense of irregular residence regularly comes up in the promises of the right and the far right who "see it as an incentive for people not to find themselves in an irregular situation," according to Tania Racho.
Right-wing MPs tried to integrate this measure into the immigration law of January 2024, but it was struck down by the Constitutional Council.
Since then, members of parliament from Les Républicains (LR) tabled a bill on the subject on 13 February 2024. "They want to re-establish the offense of illegal residence but 'the penalty would be limited to a fine and an additional territorial ban order’. However, by imposing a fine, the convicted person could appeal against it. This new procedure would then extend the period of detention on the territory," Les Surligneurs explained.
Read AlsoFrance reinstates border checks as immigration policies tighten
New law in 2025
Bruno Retailleau hopes to succeed where his predecessor failed. In October 2024, the minister established that a new immigration law be put on the agenda.
The measures of the 2024 law censored by the Constitutional Council "will serve as a basis for the new bill on immigration," a government source told the French news agency Agence France Presse (AFP). "Some could be modified and there will be additions."
The left, environmentalists and the left wing of Macron's party have already expressed outrage that a new immigration law is in preparation.
Immigration has been one of the most legislated issues in France in the past decades. Thirty-two laws on immigration and foreigners have been adopted since 1980 in France, according to the Museum of the History of Immigration.