During his trip to Mayotte, the Minister of the Interior, Gérald Darmanin, announced on Sunday February 11 his intention to abolish land rights in the archipelago. “A radical decision” supposed, according to the executive, to respond to the serious migration crisis. This measure, specific to Mayotte, is part of a long list of legal exceptions already in place in this department.
If all citizens are equal before the law, the French Constitution provides for “adaptations relating to the particular characteristics and constraints [of] overseas communities”. In Mayotte, the Human Rights League (LDH) sees them rather as “a sum of derogations, exceptions to the norm, which lead to serious deprivations of their fundamental rights” for the inhabitants of the island.
French department since April 1, 2011, “outermost region” of the European Union since January 2014, Mayotte has had to comply with French and European standards. The law has thus become standardized in certain areas. Anticipating departmentalization, cadial justice, based on Muslim and Malagasy customary law, was repealed in 2010, as were new polygamous unions.
The demonstrations for “real equality”, which shook the island in 2016, got the better of the island’s specific labor code, which remained at 39 hours and prohibited temporary work. Mahorais workers were thus able to move to 35 hours and benefit from an industrial tribunal, which did not exist before.
However, numerous exceptions remain, especially on foreigners' rights and social protection.
Numerous exemptions from foreigners' rights
The code of entry and stay of foreigners and the right to asylum (Ceseda) was extended to Mayotte in May 2014, but includes numerous exemptions, assumed in the draft ordinances which put it in place: “These differences compared to common law arise mainly from the desire to deter as much as possible irregular immigration, particularly of minors, mainly from the Comoros. » In Mayotte, nearly one in two residents was of foreign nationality in 2017, according to the National Institute of Statistics and Economic Studies (Insee).
Most residence permits issued on the island only authorize presence in Mayotte, unlike those issued in mainland France, which are valid throughout French territory. Foreigners who have obtained this residence permit must therefore obtain a visa to travel to another department.
In Mayotte, there is no residence permit commission, as there is in mainland France, where the said commission is required to be contacted when the administrative authority plans to refuse to issue a residence permit to people who can benefit from it. full right. “Since there is no upstream control on the island, the prefecture can decide much more freely not to issue a title,” notes Me Mélanie Trouvé, lawyer at the Mayotte bar.
On February 11, Gérald Darmanin announced a major overhaul of this system. The government will propose the abolition of territorialized residence permits in its future bill on Mayotte, which must be studied in the National Assembly “in the coming weeks”. The minister thus responds to a request from groups of citizens who protest against insecurity and the weight of irregular immigration, and for whom this territorialized visa makes the island a dead end where foreigners are kept, in order to protect Reunion and France.
A child born in Mayotte to foreign parents can, as in the rest of France, obtain French nationality when they turn 18 (or from the age of 13 if their parents request it) if they have lived for at least five years on French territory since he was 11. But, since the asylum and immigration law of 2018, he must also prove that at least one of his parents has resided in France regularly with a residence permit for more than three months from the date of his birth.
Gérald Darmanin first announced, in January 2023, his desire to extend this deadline to one year. Pressured by numerous demonstrations by citizen groups, the government finally decided to go much further by proposing an outright abolition of land rights in Mayotte. “It will no longer be possible to become French if you are not yourself the child of French parents,” Mr. Darmanin declared on February 11. The ministry believes that this will “cut the attractiveness” of the island for immigration candidates, particularly from neighboring Comoros.
However, this measure is still far from coming into force. It will have to go through a constitutional revision, which will have to be voted on in the same terms by the National Assembly and the Senate, before obtaining a three-fifths majority in Parliament, or being validated by referendum.
The “immigration” law wanted by the government and adopted with difficulty in Parliament at the end of 2023 added a new exception to Mayotte with regard to the conditions of family reunification.
Since the promulgation of this text on January 26, a foreigner wishing to bring his immediate family (spouse and minor children) to Mayotte must have resided regularly on the island for at least three years and benefit from a permit for a period of validity of at least five years. In mainland France, the legal residence requirement for the applicant is half as high (eighteen months).
In France, the law provides that a movement document for a minor foreigner be issued to children “of whom at least one parent is the holder of a temporary residence permit, a multi-year residence permit or a of resident”. This card, valid for five years, allows minors without French nationality to cross the country's borders.
But the 2018 immigration law introduced an additional condition for Mayotte: the document is only issued to children born on Mayotte territory or who entered legally before their 13th birthday. Children who do not meet these criteria cannot leave the island, even if their parents have permission.
Since a decree in May 2022, foreigners who wish to request asylum in Mayotte only have seven days after the first registration of their file in the prefecture, compared to twenty-one previously (duration still in force in the other departments).
Each year, the department accounts for more than 60% of obligations to leave the territory (OQTF). In mainland France, when an illegal foreigner subject to an OQTF files an appeal before the administrative court, he cannot be expelled before the judge's decision. In Mayotte, the appeal does not automatically suspend the departure obligation. People are therefore often expelled before going to court.
In 2022, administrative justice processed 5,567 appeals from foreigners in Mayotte and canceled 1,004 OQTFs, in particular for the benefit of parents whose children have French nationality.
France was condemned in June 2020 by the European Court of Human Rights for having expelled two children aged 3 and 5 born in Mayotte, by having arbitrarily attached them to a third adult to send them back to the Comoros.
In mainland France, the allowance for asylum seekers is 6.80 euros per day for a single person. In Mayotte, no system is planned; food vouchers of one euro per day are nevertheless distributed as material aid.
Return assistance, which allows illegal foreigners to return to their country of origin by paying their transport costs and with a small financial assistance, does not exist in Mayotte either.
The law provides that people stopped upon entering French territory can have one day before their possible repatriation, in particular to file an appeal or an asylum request. Adults do not have this right in Mayotte.
During detention, the prefecture is required to refer the matter to the liberty and detention judge. But the deadline, set at forty-eight hours in mainland France, is extended to five days in Mayotte. “As people are returned overnight, the judge does not have time to rule on the legality of the expulsion,” notes Me Trouvé. When the judge is actually seized before the person is expelled, the deprivations of liberty “are generally canceled because they are tainted with nullity, the rights are not respected because everything is done in haste”, adds Marjane Ghaem, lawyer in rights of foreigners who have worked on the island for a long time.
In the name of “the fight against illegal immigration”, the French police in Mayotte can carry out generalized and discretionary identity checks by invoking article 78-2 of the code of criminal procedure. “The island is considered a giant border,” clarifies Me Trouvé. This situation is different from that of other overseas territories subject to an exceptional regime, such as Saint-Barthélemy, Guadeloupe and Saint-Martin, where these controls can only take place in a zone of one kilometer measured from the coast. . According to Médecins du Monde, “certain segments of the population are thus subjected to a form of police harassment aimed at keeping an expulsion machine running at full speed in disregard of people’s fundamental rights.”
In the rest of the national territory, the law only authorizes it in an area located less than 20 kilometers from a border, or in specific locations (on a highway or on a train).
Social legislation far from French standards
Social minimums and social benefits are all lower than those practiced in mainland France.
As of January 1, the hourly minimum wage in Mayotte was 8.80 euros gross (or 1,334.67 euros gross per month), while in mainland France and in all other overseas departments, it is 11.65 euros gross per month. per hour (1,776.92 euros per month), which is 24% lower.
After departmentalization in 2011, the State extended active solidarity income (RSA) to the island by decree. But its amount is only 303.88 euros per month for a single person since May 2023, compared to 607.75 euros in the other departments – or 50%, even if this ratio is improving: it was 25% in 2012.
In a report published in March 2022, the High Council for Family, Childhood and Age highlighted that in Mayotte, “social minimums are poorly distributed to foreigners due to drastic rules”.
To benefit from the RSA, foreigners (excluding refugees) must have held a residence permit authorizing them to work for at least fifteen years. In mainland France, this duration condition is only five years.
Likewise, foreigners who would like to benefit from the solidarity allowance for elderly people on the island must hold a valid residence permit and have a period of legal residence of fifteen years (compared to ten years in mainland France).
Collective agreements, these negotiated texts which specify working conditions and social guarantees by branch, are inoperative in Mayotte, although labor law has applied there since January 1, 2018.
According to Mayotte Hebdo, only around forty collective agreements have been extended to the island, among more than 730. This is the case of the collective agreement for telecommunications (since 2018), clothing and textile articles (2020) , food retail professions (2022) or even private non-profit hospital establishments (2018).
In terms of health, the Mahorais also have an exceptional regime with local health and maternity insurance since 2005, which replaced free care for residents: the Mayotte Social Security Fund (conditional on the regularity of the stay) manages illness, maternity, disability and death risks.
There is no AME (state medical aid) “so as not to attract illegal immigrants”, explained the senators in a report published in August 2022. “All of this is very hypocritical”, deplores senator Les Républicains and rapporteur Catherine Deroche, because “care is well covered”, not by the State, but by the regional health agency, from its regional intervention fund.
Despite multiple requests made, among others, by the Defender of Rights, people deprived of health insurance – if they are in an irregular situation, for example – have no protection and must theoretically pay the costs of their care. Senators are asking to consider the extension to Mayotte of universal health protection and complementary solidarity health insurance (CSS, former complementary CMU), which are available in the “neighboring” department of Réunion.
In Mayotte, a retiree cannot receive more than 900 euros in pension for a full career, even after having received a good salary. In fact, the Mahorais retirement system came into force in 1987, work carried out before this date is therefore not taken into account in the calculation of retirement. A decree of December 2021 provides for the allocation of additional quarters based on the number of quarters validated between 1987 and 2002, in order to compensate for the low contribution.
If it applies on the island, the 2023 pension reform, which raises the legal age from 62 to 64, will have little impact, because the Mahorais are already leaving as late as possible in order to minimize the loss of income. In January 2023, the island's 2,615 retirees received an average of 276 euros per month, below the poverty line.
Various exceptions
In Mayotte, as in Guyana, the prefect has full powers to destroy illegal homes and evict their inhabitants (2018 law), respecting a notification period of one month. This is the whole point of the “Wuambushu” operation, the aim of which is to raze a thousand unsanitary homes in two months and the first stage of which was canceled by the courts on Tuesday April 25 due to “irregular evictions”. before being relaunched a month later.
On the rest of the national territory, the State must go through the summary judge (who rules urgently) in order to carry out the demolition and eviction.
As in certain other overseas departments or in Alsace-Moselle, the 1905 law on the separation of Churches and State does not apply. It is the Mandel decrees of 1939 which govern worship. Each religion can create a “mission” and is managed by a state-approved board of directors. On the island, the Muslim faith is largely in the majority, but has not constituted this type of mission and administers its activities within the framework of the 1901 law on associations. Only the Catholic Church established itself as a “mission” from 1995.
Furthermore, “for reasons of general interest and in compliance with the principle of secularism”, communities can subsidize activities or equipment dependent on religions, as set by the Council of State in a 2005 decision.
Updated April 28 at 2:30 p.m.: addition of a point on the conditions of access to social minimums for foreigners.
Update of February 12 at 4 p.m.: update of the article following Gérald Darmanin's announcements (territorialized visa, land law and amount of social benefits).
