3rd Corean International Forum – Seoul, November 28- December 2nd, 2011
Section “Gender”

Migrant women in contemporary French legislation

by Nguyen Dac Nhu-Mai

As participant of the 3rd Corean International Forum, I would like to exchange and discuss in “Gender Section”, the problems of Migrant Women as regards their rights in France.

Currently the existence of migrants in an irregular situation is referred to as “undocumented” problem (Sans Papiers).  It is interesting to see the impact of the contemporary labor laws issues and perspectives on their life project in the context of the French presidential elections of 2012.

An irregular migrants means a legal status, describing the present situation in the country while having no residence permit in order.  For Migrants, this may involve multiple ways, after entering in a clandestine manner in the national territory or to have lived in the territory after expiry of the period of validity of residence permit. Indeed, for Migrant Women, the reasons are various. They can be victims of traffickers or smugglers on the basis of false documents provided by them. In general, they seek to live with their family members already settled in France. They entered legally and prolonged stay after the visa expires, or the asylum application was rejected or a residence permit for medical reasons was not renewed. Currently to qualify for state medical assistance (AME) designed to take care of medical expenses, migrants must pay an annual fee of € 30, otherwise their medical card will not be renewed.

For legal work, Migrant Women should be married to French and have French citizenship.  However, there are stricter rules of mixed marriages. The new law of 16 June 2011 introduced the sanction of marriage “gray” fraud-related affection on the part of foreign women married to French. If the stranger who has contracted marriage has concealed her intentions to her husband, she faces up to five years’prison and a fine of € 15,000. But the problem will be to prove this fraudulent intent.

Article 21-2 of the Civil Code for the acquisition of French nationality.

The acquisition of French nationality practicable after a period of four years of marriage on condition that the community of life has not ceased.The period of cohabitation shall be five years if the foreign spouse is not able to justify a regular and uninterrupted residence of at least on the French territory from the marriage or is not able to demonstrate that the French spouse has been entered, for the duration of their community life abroad in the register of French nationals settled outside France. In addition, the marriage celebrated abroad must have been a transcript prior to the registers of the French Civil.

Regarding the circular of 31 May 2011 on labor migration. To reduce the circular labor migration provides a number of details regarding the change of status of Migrant student to Migrant worker.  The circular states that “the procedure for change of status (student apply for a working permit) will be subject to a thorough check. The exception for students who seek a temporary residence permit within a job search must remain strictly limited. Having stayed as a student shall not be entitled to any particular ease in reviewing the procedure for issuing a work permit. The circular confirms the ability of the incumbent of a “temporary residence permit” (APS)of six month to be employed without the employment situation can be contrasted in the consideration of the application for a work permit, provided that the employment contract supplies for compensation of not less than one and a half times the minimum wage (SMIC) and that the nature of the position is consistent with the diplomas. Notwithstanding this law is justified since the current job is a first professional experience related to a project back in the country of origin “. Are particularly concerned, the procedures for change of status of migrant students who find a job in France at the end of their studies. Other procedures for change of status, rarer are those of the employees on a mission seeking a work permit to work in France to stay beyond three years. 

The main points covered in this circular are:

– Checks on the employer will be strengthened on the respect of the entire labor legislation and social protection (eg compliance related to the use of older or disabled workers).

– The requirements of hiring a migrant  if no French or migrant already on the job market cannot fill the vacancy. They remain close to those applied so far, but with a stricter application of the enforceability of employment.

-For the change in status, the circular gives particular attention to the adequacy of the diploma with the proposed use. The conditions of issue, the rights and duties related to the APS 6 months for students to a level at least equal to the Master are recalled.

With respect to the Prefecture for the PhD students: The possibility of obtaining an extension of residence permit having an university enrollment must be requested and this regardless of their status “scientific” or “student”. This would enable the doctoral students to support their thesis, if they could not do so for the duration of the contract, to seek a post doctoral contract or a job in a company. In addition, the doctotral students without a residence permit, cannot touch unemployment help while they have paid the contribution. The delay between the request for an appointment and obtaining a receipt is too long (~> 2 months). Meanwhile, the PhD students cannot do the necessary registrations for social security, housing and board allowance.  Reception conditions in the prefecture are difficult because the waiting is so long that the doctoral students  have to queue all night for a chance to be received in the morning. Decisions taken by the French Administration regarding the future of  PhD students depend on the arbitrary of the adminstrator who deals with the case. Contrary to the Prefecture (or Embassy) long-stay visas have not the same rights as a residence.

The decree of September 6, 2011 regarding the long-stay visa dating 1 January 2012. According to the Official Journal (JO) No. 0207 of September 7, 2011 Page 15 036 Text No. 9, a new decree of September 6, 2011 indicates that dating 1 January 2012, the member entering France under the family reunification will benefit from long-stay visa valid as residence (VLS-TS). From 2012, the holder of such a visa does not have to take steps in the Prefecture during the period of validity of the visa. However, the holder must observe certain formalities with the French Office for Immigration and Integration (OFII) to validate the visa. But this device does not apply to citizens of Algeria, EC and Switzerland. The procedures and formalities are carried out with the OFII.

Issues and perspectives in the context of the presidential elections of 2012.

France wants to be competitive in all areas especially for the scientific and technological development. Thus, according to Mr. Pierre Braunstein, Vice-President of the Kastler Foundation  “The attractiveness of our country in the areas of academic research is a prerequisite for competitiveness. This is now increasingly integrated into the thinking of policy makers that the most dynamic countries have set up ambitious programs, with financially strong, aspiring to be sustainable. For indeed, translate this concept into reality, to move from laudable but point to a real political medium and long term, requires crossing number of steps and requires human and material resources. Time is running out if France wants to be present in the global competition of the attractiveness of science” (2009 Report)

However, immigration is an important issue for all candidates in 2012, especially with the New Coalition of the Left that develops around about the future with the face of a younger France, more female, more diverse  more qualified, but more urban. But, changes in legislation specifically marks the change in French immigration policy as the economic and social context. In a world of globalized economic crises, the automatic adjustment in France has replaced a regulation “case by case.” The provisions concerning the permit authorizing the work are so restrictive that they will encourage the maintenance in the territory of illegal immigrants whose precarious situation will support the growth of illegal work. Linking the right to stay with the duration of the employment contract induces working conditions and wages of non-negotiable, lowers the requirements of all employees, excluding the production of wealth, social contributions and maintains additional systems such as state medical aid that would not be incurred if the work was regular.

In France, Migrant Women are present in the co-development, but their actions are not valued. They often have less access than men to resources and training to conduct their business. Often referred to as “beneficiaries”, they are not seen as essential actors of development. They are a minority at all levels. The difficulties that affect them are discussed or justified as “cultural realities” rather than as violations of rights or structural discrimination. Faced with this situation, the Forum of International Solidarity Organisations from Migration (FORIM) finds that international solidarity organizations (OSIM) do not take sufficient account of the fact that gender inequalities distort and hinder development and are often a violation of human rights of women. Considerations and tools to integrate gender in the workplace has become a criterion for funding development programs North and South.

Furthermore, at the Citizen Summit on Migration, (Paris October 17-18, 2008) it was emphasized that  “States shall cooperate with destination countries of origin – supposed to better control the departure of migrants – and Transist through funding. These countries are committed also to “take over” their nationals or those of other states that have passed through their territory. Such clauses are often included readmission agreements to which the northern states allowing their development assistance to developing countries. This assistance is increasingly more conditional on the participation of developing countries to control migration flows”

Migrant Women (regardless of status) have rights, not only those established by the United Nations Convention on migrant workers, but also as persons, entitled to respect for fundamental rights as stipulated in the Universal Declaration of Human Rights.