FECL 21 (December 1993/January 1994):
In August, the French Constitutional Council annulled provisions of the "Pasqua bill" on immigration authorizing the police to vet asylum applications before they are considered by the refugee board (OFPRA).
The provisions aimed at making it possible for France to return asylum seekers entering into France from another Schengen-Member State without further examination.
But the Constitutional Council found that such a practice would breach against French constitutional law that guaranteed every asylum seeker the right of access to due process in France, including the right to stay pending a decision.
In the view of the French government, the Schengen Agreement became inapplicable to France, as a result of the Council's decision. Interior Minister Charles Pasqua, publicly expressed fears that thousands of "false refugees" rejected by other Schengen countries would now poor into France (see CL No.18, p.5) and called for a speedy amendment of the constitution.
On 15 November both chambers of the French parliament united in the Congress adopted the amendment against the votes of the Socialists and the Communists.
The new supplementary provision of the constitution states that France may make agreements on asylum with other countries that recognise the same fundamental rights. The provision maintains the right for France to grant asylum to foreigners.
As a matter of fact this right of any Member State to grant asylum to a refugee whose application has been turned down in another member state is clearly stated in the Schengen Agreement. Considering this, some experts question the necessity of the constitutional amendment. Indeed, it is not the amendment as a such, but a particular law on its implementation that will most affect the right of foreigners to seek asylum in France. According to this law, asylum seekers no longer have an automatic right of stay in France, pending the procedure.
As a consequence, France can return undesirable asylum seekers to Schengen-Member States and other "safe countries" at once, pending a decision within a procedure that is likely to be very summary.
Thus, the "danger" stressed by Interior Minister Pasuqa of a massive influx of asylum seekers into France via neighbour countries appears to be effectively eliminated.