France’s citizenship reform in Mayotte: a dangerous constitutional reform for purely symbolic impact?

France is poised to introduce a constitutional amendment that would end birthright citizenship in Mayotte, conveniently attributing the island’s poverty and insecurity to high numbers of migrants. Beyond the questionable constitutional validity of establishing a two-tier citizenship regime, the proposed reform raises concerns about core constitutional principles of equality and the indivisibility of the Republic. Moreover, the reform would likely prove ineffective in meeting its stated objective of stemming migration – writes Professor Marie-Laure Basilien-Gainche

In March 2024,  a revision to the French Constitution recognized abortion as a guaranteed freedom (see analysis here and here). Concurrently, with far less international attention, the government announced a draft constitutional amendment to limit the acquisition of French citizenship in Mayotte. On 11 February 2024, during his visit to these French islands situated in the Indian Ocean, the Minister of the Interior, Gérald Darmanin, announced plans for a constitutional reform to be presented before the summer to abolish the ius soli in Mayotte, stating that ‘it will no longer be possible to become French if you are not the child of a French parent’. This announcement came amidst a deeply tense political and social climate in Mayotte, the 101st French department, which has been experiencing high levels of crime, huge protests, and significant immigration for months.

The context of social tensions and security worries

The proposal by the French Minister of the Interior to eliminate the acquisition of French nationality through being born in this overseas department is meant to appease the anger of the Mayotte population as the reform would allegedly stem immigration. Indeed, for years, Mahoran politicians have been asking for a reform that would reduce access to French nationality for migrants, blaming irregular migrants – who represent 40 per cent of Mayotte’s residents – for chronic poverty and rising insecurity. To placate social tensions, France launched “Operation Wuambushu” in April 2023, doubling the number of law enforcement officers on the archipelago and aiming to combat irregular migration through deportation, dismantling shantytowns where migrants are living, and apprehending criminals who sustain the chronic insecurity.

The Minister of the Interior promised . . . the abolition of birthright citizenship, continuing the narrative that migrants are responsible for the precarious social situation of the islands. 

Yet the appeasement did not last long. Tensions worsened after the end of the operation and the emergence of a water crisis in September 2023. Another element that accentuated the social crisis was the establishment of a refugee camp, inhabited by people fleeing persecution and conflicts in the Great Lakes Region in Africa, near the Cavani stadium in the capital Mamoudzou. The anger was so great that collectives set up roadblocks all over the island, paralysing the department since late January 2024. Thus, it is within this tense context that the Minister of the Interior promised to the Mayotte population stronger border controls, a second Operation Wuambushu, and the abolition of birthright citizenship, continuing the narrative that migrants are responsible for the precarious social situation of the islands. 

Reform of constitutional acquirement of French nationality

The domestic laws on French nationality are complex, allowing acquisition through both bloodline and birthplace. The principle of ius soli (“droit du sol”) allows the acquisition of French nationality in three cases: if a child born in France would otherwise be stateless; if at least one parent of a child born in France was also born in France; or if a child of two foreign parents is born in France, and has been resident in France for at least five years since the age of 13. In the latter case, the child obtains French nationality at the request of the parents (between the ages of 13 and 16), at her own request (between the ages of 16 and 18), or automatically at the age of 18.

The Mayotte reform proposal was introduced just after the promulgation in January 2024 of a new Immigration Law, which saw certain provisions aimed at restricting eligibility for French nationality rejected by the Constitutional Council. Yet the 2018 Immigration Law, applied since 1 March 2019, added a condition for children born in Mayotte to non-French nationals. These children can acquire French nationality only if, at the date of their birth, at least one of their parents had been residing in France legally and continuously for at least three months. Such a legal residency requirement does not exist in the other French departments, creating a discrepancy between the different territories of the Republic. Furthermore, parents can be granted a residence permit based on their child’s French nationality, only if they have been effectively contributing to her upbringing and education. Yet the February announcement by the Minister of the Interior proposed the pure elimination of the possibility to acquire French nationality by being born in Mayotte.

The choice to pursue a constitutional reform to suppress the ius soli in Mayotte

One can wonder why the executive proposed a constitutional reform rather than an ordinary law, as the 2018 Immigration Law introduced an additional requirement for French nationality eligibility in Mayotte that was not censured by the Constitutional Council in its decision of 6 September 2018. It is important to note that the Constitutional Council approved the limitation, seeing it as a legitimate adaptation of the national legislation permitted by Article 73 of the Constitution to mitigate the particular characteristics and constraints facing the archipelago of Mayotte because of significant migration flows. Yet a straightforward abolition of the ius soli in Mayotte could certainly not be considered as a permissible legislative adaptation. Indeed, such a suppression would induce deep alteration of current constitutional principles.

The proposal undermines the principles of the indivisibility of the Republic and of equality, which are both proclaimed in the first article of the 1958 Constitution.

Two main issues arise that are rightly exposed by Professor Jules Lepoutre. First, the proposal undermines the principles of the indivisibility of the Republic and of equality, which are both proclaimed in the first article of the 1958 Constitution. Abolishing ius soli in Mayotte would create two nationality regimes, initiating a rupture between Mayotte and the rest of the Republic that could echo historical periods where droit du sol did not apply in France’s colonies. Second, the principle of birthright citizenship, present in French law since the Ancien Régime, has been enshrined in all subsequent laws related to nationality during the following Republics; therefore, the Constitutional Council might reject an ordinary law suppressing birthright citizenship in Mayotte, potentially recognising ius soli as a new constitutional principle. This is why the executive announced a constitutional reform, indicating a problematic formalist conception of the law, as highlighted by Jules Lepoutre.

The inadequacy of the reform for the declared purpose

While important principles would be affected by such a constitutional reform, its efficacy in stemming migration flows to Mayotte and reducing the attractiveness of this French territory is yet to be proven. The 2018 Immigration Law led to a huge decrease in acquisition of French nationality in Mayotte, which dropped from 2,800 people in 2018 to 900 in 2022 and to 860 in 2023 (according to the figures communicated by the Ministry of Interior). Yet the arrival of migrants does not seem to have declined, revealing the irrationality of the equation asserted by the Minister of the Interior and the Mahoran representatives. It should have been considered that the rates of acquiring French nationality on the ground of ius soli, or through requests by parents of children born in Mayotte to obtain French nationality at 13, are not higher in Mayotte than in the other French departments.

The Minister of the Interior insists upon the presence of irregular migrants in Mayotte, the importance of migrants’ arrivals on the archipelago, and the great number of births in the maternity hospital of Mamoudzou. Yet these are not linked to the acquisition of French nationality. Individuals fleeing persecution and conflicts are coming from home countries well-known for producing refugees. Those who venture on kwassa kwassa – tiny fishing boats used to cross the 70 kilometres that separate the Comoros and the French archipelago – are often fleeing extreme poverty. The constitutional reform is unlikely to reduce the number of Comorian babies born in the hospital in Mamoudzou, as their mothers are seeking a safe place to give birth which they cannot find in the Comoros due to huge deficiencies in the national health service. The stark differences in living conditions between the Comoros and Mayotte better explain migratory pressure faced by the archipelago.

The proposed amendment of the French Constitution to abolish the ius soli in Mayotte raises significant concerns. First, it manifests a utilitarian conception of the Constitution that would be modified to deploy a policy whose impact will be limited, even non-existent. Second, it opens a large window of opportunity for right and extreme right-wing demands for suppression of birthright citizenship in the entire Republic.

Marie-Laure Basilien-Gainche is Professor of Law at University Jean Moulin Lyon 3, Senior Member of the Institut Universitaire de France, and Member of the French Collaborative Team on Migration.

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Suggested citation: Marie-Laure Basilien-Gainche, ‘France’s citizenship reform in Mayotte:  a dangerous constitutional reform for purely symbolic impact?’, ConstitutionNet, International IDEA, 22 March 2024, https://constitutionnet.org/news/voices/frances-citizenship-reform-mayotte-dangerous-constitutional-reform-purely-symbolic-impact

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