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Case:
CE, Ass., 29 juin 1990, p.171 Case Groupe d'information et de soutien des travailleurs immigr és(GISTI)
Date:
29 June 1990
Translated by:
Professor John Bell FBA
Copyright:
Professor B. S. Markesinis

In the light of the Ordinance of 2 November 1945; the Labour Code; the European Convention of Human Rights; the Franco-Algerian Agreement of 27 December 1968, as modified by the codicil and the protocol of 22 December 1985; the Ordinance n¿ 57-1708 of 31 July 1945, the Decree n¿ 53-934 of 30 September 1953 and the Law n¿ 87-1127 of 31 December 1987;

In relation to the arguments directed at the annulment of the 7th and 10th clauses of paragraph 2.2.1.2 of the Circular of 14 March 1986:

Considering that, even if article 7 of the declaration of principles relating to economic and financial co-operation between France and Algeria of 19 March 1962 accords to Algerians resident in France the same rights as French nationals, with the exception of political rights, the conditions for entry and residence of Algerians in France are governed by the Franco-Algerian Agreement of 27 December 1968 and the treaties which have amended it; as, under the terms of article 7 b) of the said agreement in the version resulting from the codicil of 22 December 1985: “After a customary medical check and on presentation of a contract of employment stamped by the services of the minister responsible for immigrant workers, Algerians wishing to exercise a paid professional activity shall receive a renewable certificate valid for one year covering all professions and regions and carrying the heading “employee”; this heading shall constitute a work permit required by French law”; as, in making clear that, for the purposes of this provision, the work permit should be granted according to the instructions applicable to foreigners and taking account especially of the employment situation, as is provided by article R 341-4 of the Labour Code, the drafters of the Circular have confined themselves to interpreting correctly the provisions of the Agreement; as the criticised provisions of the Circular thus lack any regulatory character, the Group cannot claim it annulment;

In relation to the arguments directed at the annulment of the 24th clause of paragraph 2.2.1.2 relating to the temporary work permits granted to Algerian students:

Considering that the protocol annexed to the first codicil to the Franco-Algerian Agreement of 27 December 1968, insofar as it relates to Algerians permitted to reside in France as students, does not contain any provision which sets as a pre-requisite a work permit as required by French law when they intend to undertake paid work in an ancillary manner at the same time as they are pursuing their studies; as in providing that Algerian students wishing to work are submitted to the system of temporary work permits issued on the terms set out in the circulars of 24 February 1976 and 1 August 1985, which provide that account should be taken especially of the employment situation, and by rescinding on this point the Circular of 12 March 1979, which noted that they were dispensed from such a permit by art. 7 of the declaration of principles of 19 March 1962, the Circular has enacted a rule contrary to the international treaties applicable to those involved in this litigation; as the Groupe d’information et de soutien des travailleurs immigrés is entitled to claim the annulment of the circular on this point;

In relation to the arguments directed at the annulment of the 1st clause of paragraph 3.1.1 insofar as it includes minor children under 18 years among the members of the family capable of enjoying family reunion:

Considering that, according to the terms of art. 4, para.. 1, of the Franco-Algerian Agreement of 27 December 1968 (in the version following from the first codicil to this agreement): “The members of the family who are established in France shall be in possession of a residence permit valid for the same period as the person there are rejoining.”; as under the terms of the first paragraph of Title II of the protocol annexed to the said codicil: “The members of the family mean the spouse of an Algerian citizen, his minor children, as well as the children under 18 years of age of which he has the legal charge by reason of a decision from the Algerian judicial authorities.”; as it follows from the evidence on file that the authors of the said codicil and of the annexed protocol did not intend to amend the provisions previously in force under the Agreement of 27 December 1968 which applied to the spouse and the children under 18 years of age; as, in consequence, in indicating that minor children meant children under 18 years, and not those of 19 to 21 years in accordance with Algerian law, the authors of the circular have limited themselves to interpreting exactly the terms of the Franco-Algerian Agreement; ; as the criticised provisions of the Circular thus lack any regulatory character, the Group cannot claim it annulment;

In relation to the arguments directed at the annulment of the 3rd clause of paragraph 2.2.1.1 and of the penultimate clause of paragraph 2.2.4 of the challenged circular relating to the refusal of a one-year residence permit or a residence permit for 10 years if the presence of the person constitutes a threat to public order:

Considering that no provision of the Franco-Algerian Agreement of 27 December 1968 modified by the first codicil and the protocol of 22 December 1985 deprives the French administration of its power arising from the general regulation of the entry and residence of foreigners in France to refuse entry to reside to an Algerian citizen on the ground that his presence in France constitutes a threat to public order; as thus and even though the aforementioned Agreement does not provide for such a possibility, the authors of the Circular have not enacted any new rules whose legality can be challenged by the Group…

Rejects the remaining arguments of the request

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