"We cannot eternally justify the paradox of placing Mayotte outside of republican legality to better affirm its membership of the Republic," stings François Héran, professor at the College de France, in his latest book Immigration, le grand déni (Seuil , 2023). Citizens are equal before the law but the French Constitution provides for "adaptations relating to the particular characteristics and constraints [of] communities" overseas. 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 been standardized in certain areas. Anticipating departmentalization, cadial justice, based on customary Muslim and Malagasy law, was repealed in 2010, as were the new polygamous unions.
The demonstrations for "real equality", which shook the island in 2016, got the better of the specific labor code, which remained at 39 hours and prohibited temporary work. Mahoran workers were thus able to switch to 35 hours and benefit from an industrial tribunal, which did not exist before.
Many exceptions remain, however, especially on the rights of foreigners and social protection.
Many derogations on the rights of foreigners
The code for the entry and stay of foreigners and the right to asylum (Ceseda) was extended to Mayotte in May 2014, but includes numerous derogations, assumed in the draft ordinances which put it in place, published in February 2014: “These differences from common law stem mainly from the desire to deter irregular immigration, in particular minors, mainly from the Comoros as much as possible. In Mayotte, nearly one in two inhabitants was of foreign nationality in 2017, according to the National Institute of Statistics and Economic Studies (Insee).
Most of the residence permits issued on the island only authorize presence in Mayotte, unlike those issued in mainland France, which are valid throughout France. 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 we find in mainland France, where the said commission must be seized when the administrative authority plans to refuse to issue a residence permit to people who can benefit from it. by right. "Since there is no upstream control on the island, the prefecture can much more freely decide not to issue a title", notes Me Mélanie Trouvé, lawyer at the bar of Mayotte.
Since the asylum and immigration law of 2018, a child born in Mayotte of foreign parents can, as in the rest of France, obtain French nationality at the age of 18 (or from the age of 13 if their parents request it). ) if he has lived in France for at least five years since he was 11 years old. But he must also prove that at least one of his parents resided in France on a regular basis with a residence permit, and for more than three months at the date of his birth. The Minister of the Interior, Gérald Darmanin, recently announced his desire to further extend this period to one year.
For children born before March 1, 2019 in Mayotte to foreign parents, it is necessary to prove that one of the parents has resided regularly in France for five years on the date of the declaration.
In France, the law provides that a circulation document for foreign minors be issued to children "whose at least one of the parents holds a temporary residence permit, a multi-year residence permit or a of resident". This card, valid for five years, allows minors who do not have French nationality to cross the country's borders.
But the 2018 immigration law introduced an additional condition for Mayotte: the document is only issued there 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 the entry into force of a decree in May 2022, foreigners who wish to seek asylum in Mayotte now have only seven days compared to twenty-one previously (duration still in force in the other departments).
Each year, the department concentrates more than 60% of the obligations to leave the territory (OQTF). In mainland France, when a foreigner in an irregular situation 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 obligation to leave. People are therefore very often expelled before the judge is seized.
In 2022, administrative justice handled 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 deporting two children – 3 and 5 years old born in Mayotte – by arbitrarily attaching them to a third adult to send them back to the Comoros.
In metropolitan France, the allowance for asylum seekers is 6.80 euros per day for a single person. In Mayotte, no device is planned; food vouchers of one euro per day are nevertheless distributed as material aid.
Return assistance, which allows foreigners in an irregular situation to return to their country of origin by paying their transport costs and with a small financial aid, does not exist in Mayotte either.
The law provides that people stopped at the entrance to French territory can have one day before their possible repatriation, in particular to file an appeal or an asylum application. Adults do not have this right in Mayotte.
During a placement in detention, the prefecture is required to seize the judge of freedoms and detention. But the deadline, set at forty-eight hours in mainland France, has been extended to five days in Mayotte. "As people are expelled overnight, the judge does not have time to rule on the legality of the eviction," notes Found. When the judge is actually seized before the person is deported, the deprivations of liberty "are generally canceled because they are null and void, the rights are not respected because everything is done in haste", adds Marjane Ghaem, lawyer in law of foreigners who have long practiced on the island.
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 Found. 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 1 km measured from the coast.
According to Doctors of the World, "certain segments of the population are thus subjected to a form of police harassment aimed at running a deportation machine at full speed in defiance of the fundamental rights of individuals".
On the rest of the national territory, the law only authorizes it in an area located less than 20 km from a border, or in specific locations (on a motorway or in a train).
Social legislation far from French standards
Social minima and social benefits are all lower than those practiced in mainland France.
On January 1, 2023, the hourly minimum wage in Mayotte was 8.51 euros gross (i.e. 1,006.73 euros net per month), while in mainland France and in all the other overseas departments, it reached 11.27 euros per hour (1,333.24 euros net monthly), i.e. a level of 24.5% lower.
After departmentalization in 2011, the State extended by decree the active solidarity income (RSA) to the island. But its amount is only 287.76 euros per month for a single person in April 2022, compared to 607.75 euros elsewhere in France. This represents only 47% of the amount received in the rest of France, even if this ratio is improving (it was 25% in 2012).
In a report published in March 2022, the High Council for the Family, Childhood and Age pointed out that in Mayotte, "social minima are little 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.
Similarly, foreigners who would like to benefit from the solidarity allowance for the elderly on the island must hold a valid residence permit and have a legal residence period of fifteen years (compared to ten years in metropolitan 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 about forty collective agreements have been extended to the island, out of more than 730. This is the case for the collective agreement for telecommunications since September 2018, clothing and textile articles (extended in 2020 ), trades in the food retail trade or even private non-profit hospital establishments, since July 2018.
On health, the Mahorais also have an exceptional regime with local health-maternity insurance since 2005, which has replaced free healthcare for residents: the Mayotte Social Security Fund (conditional on the regularity of the stay) y manages the risks of illness, maternity, disability and death.
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 "the care is well taken care of", not by the State, but by the regional health agency, on its regional intervention fund.
Despite numerous 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 ask to consider the extension to Mayotte of universal health protection and complementary health solidarity (CSS, ex-CMU complementary), which are available in the "neighboring" department of La Réunion.
In Mayotte, a retiree cannot receive more than 900 euros in pension for a full career, even after having received a good salary. Indeed, the Mahoran pension system came into force in 1987, the work carried out before this date is therefore not taken into account in the calculation of the pension. A decree of December 2021 provides for the allocation of additional quarters according to the number of quarters validated between 1987 and 2002, in order to compensate for the low contribution.
The 2023 pension reform, increasing the legal age from 62 to 64, will apply on the island but will have little impact, because the Mahorais are already leaving as late as possible in order to reduce the loss of income. In January 2023, the 2,615 retirees on the island 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 dwellings and evict their inhabitants (article 197 of the 2018-2021 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 dwellings 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 urgent applications judge (who decides urgently) in order to proceed with the demolition and eviction.
As in some other overseas departments or in Alsace-Moselle, the 1905 law of separation of Church and State does not apply. It is the Mandel decrees of 1939 which govern the cults. Each religion can create a "mission" and operates with a state-sanctioned board of directors. On the island, the Muslim religion 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 constituted itself a "mission" from 1995.
Moreover "for a reason 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 decision of 2005.
Update of April 28 at 2:30 p.m.: addition of a point on the conditions of access to social minima for foreigners.
