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# The Principle of the Right to Stay in the Light of the Administrative Jurisprudence of Lyon: a Matter of Expulsion

Julia Crubellate

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Julia Crubellate. The Principle of the Right to Stay in the Light of the Administrative Jurisprudence of Lyon: a Matter of Expulsion. Sociology. 2025. dumas-05333710

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Julia Crubellate

Department of Social Sciences

Parcours Migrations

THE PRINCIPLE OF THE RIGHT TO STAY IN THE
LIGHT OF THE ADMINISTRATIVE
JURISPRUDENCE OF LYON: A matter of expulsion

Master's dissertation

Under the supervision of

Professor Dr. Sophie Guerard de Latour

Professor of Political Philosophy at the École Normale Supérieure de Lyon

2024-2025
*Every day, all over the world, people make one of the most difficult decisions in their lives: to leave their homes in search of a safer, better life.*

(Amnesty International)
ACKNOWLEDGMENTS

What a journey this whole experience in France was! From the moment I received an
email telling me that I had been accepted at the ENS de Lyon, to my arrival in this city,
to the first day of classes and now, the conclusion of my dissertation. It has been an
experience way beyond my imagination, and I have been cherishing it ever since, through
its ups and downs. The Julia that started this master's program is definitely not the same
that will end it (which is always a good thing, I believe).

First, I must thank enormously my supervisor, Professor Dr. Sophie Guerard de Latour,
who so gently accepted to guide me through the challenges of producing this study and
helped me make the most of it, always with kindness and expertise. Also grateful to
Professor Dr. Yasmine Bouagga, who agreed to be a part of the jury and share her vast
knowledge with us.

My deep gratitude to each one of the lawyers that so kindly disposed of their time to
contribute to my research, participating in the interviews. Your insights and opinions were
really enriching.

Then, I am deeply grateful to my parents, João Marcelo and Maristela, for all the support
that they gave me to allow me to be here today. Talking to you, father, has always been a
source of pleasure and inspiration, academically and in all other aspects of my life.

My wonderful friends, to which I owe this lovely experience here at this university and
in this city! To you my heart, Chiara, Gabrielly, Fulya (I will always remember our Zumba
lessons together), Judith, Laetitia, Marine, José, D'avila, Radeh, Lou-Anne and Chloé. I
will forever cherish you all and what we created.

To my incredible mentor and partner at Amnesty International, Chris, who warmly
welcomed me and helped me throughout my stay here, but also who gave me the
opportunity to experience, firsthand, what it means to engage with the subjects of my
researches, the migrants and refugees, to see the faces behind the documents, helping
make a better world, one person at a time.

And last, but definitely not least, to my wonderful partner, Sylvain. To you, my soul. The
one who shows himself in the most amazing ways, always inspiring me and making me
fall deeper in love. To the one who taught me what it is to be loved gently.
TABLE OF CONTENTS

<table><tr><td>INTRODUCTION</td><td>6</td></tr><tr><td>DEVELOPMENT</td><td>20</td></tr><tr><td>1. The right to stay and its consequences.</td><td>20</td></tr><tr><td>1.1 A matter of citizenship</td><td>21</td></tr><tr><td>1.2 The grounds for acquiring a citizenship.</td><td>28</td></tr><tr><td>1.3 The burden of immigration.</td><td>32</td></tr><tr><td>1.4 The right to stay</td><td>36</td></tr><tr><td>2. The pragmatic role of the right to stay in France.</td><td>45</td></tr><tr><td>2.1 France and immigration.</td><td>45</td></tr><tr><td>2.2 The city of Lyon.</td><td>51</td></tr><tr><td>2.3 The administrative jurisdiction.</td><td>52</td></tr><tr><td>2.4 The findings</td><td>53</td></tr><tr><td>2.4.1 The legality of the process</td><td>54</td></tr><tr><td>2.4.2 The merit of the process</td><td>58</td></tr><tr><td>a) Article 3§1º from the Convention on the Rights of the Child (CRC).</td><td>59</td></tr><tr><td>b) Article 8 of the European Convention on Human Rights (ECHR).</td><td>62</td></tr><tr><td>c) Article 3 from the European Convention on Human Rights (ECHR).</td><td>77</td></tr><tr><td>d) The menace to public order</td><td>80</td></tr><tr><td>CONCLUSION</td><td>84</td></tr><tr><td>BIBLIOGRAPHY</td><td>89</td></tr><tr><td>ATTACHMENTS</td><td>97</td></tr></table>
LIST OF ABBREVIATIONS

<table><tr><td>CDI</td><td>Contrat à Durée Indeterminé</td></tr><tr><td>CIR</td><td>Contrat d'Intégration Républicaine</td></tr><tr><td>CRC</td><td>Convention on the Rights of the Child</td></tr><tr><td>ECHR</td><td>European Court of Human Rights</td></tr><tr><td>EU</td><td>European Union</td></tr><tr><td>ICCPR</td><td>International Convention on Civil and Political Rights</td></tr><tr><td>IRTF</td><td>Interdiction de retour sur le territoire français</td></tr><tr><td>OQTF</td><td>Obligation de Quitter le Territoire Français</td></tr><tr><td>TCN</td><td>Third-country nationals</td></tr><tr><td>SIS</td><td>Système d'Information Schengen</td></tr><tr><td>UAE</td><td>United Arab Emirates</td></tr><tr><td>UK</td><td>United Kingdom</td></tr><tr><td>UMP</td><td>Union pour un mouvement populaire</td></tr></table>
# INTRODUCTION

## Objectives and hypotheses

According to the United Nations Recommendations on Statistics of International Migration (IOM, [n.d.]), an international migrant is defined as a person who has changed his or her country of usual residence, stating the difference between a short-term migrant as those who changed their homes for at least three months, but less than a year, and long-term migrants as those that have done it for at least one year. It is estimated that almost 281 million people live in a country other than their country of birth (Mcauliffe and Oucho, 2024), which represents 3.6% of the world population that can be considered as migrants.

Migration has become one of the most debated topics today. Politicians, public figures, and society at large continuously argue over accepting migrants and refugees, deporting undocumented individuals, and granting long-term residents the right to keep living in the chosen country, despite irregular status.

The election of Donald Trump as the 47th U.S. president in 2024 underscored the impact of these policies, as thousands of migrants are being deported, often to countries with which they have no remaining ties, even after spending several years, or even decades, in the North American country<fnref n="1" />.

Similarly, in Europe, the debate intensifies over whether long-term residents, undocumented or convicted of serious crimes, should face expulsion. Changes in political approach throughout countries such as Italy, France, Germany, Poland and Greece, aligned with a widespread anger over weak border controls and failure to return undocumented migrants and rejected asylum seekers, are influencing the legal changes and policies adopted by those countries, which are progressively endorsing a harder line (ETIAS.COM, 2024).

In response to demands from several EU member states, Ursula von der Leyen (Le Monde, 2024), president of the European Commission, stated:

> The Commission will present a new proposal for legislation that would define clear obligations of cooperation for the returnee, and effectively streamline the process of returns.

<footnote n="1">¹The White House has planned massive deportations, sending back thousands of undocumented migrants and mobilizing millions of dollars for that: “The House passed a budget resolution that, like a Senate measure passed a week earlier, could provide a gigantic amount of funding for the administration’s mass deportation plans. These plans appear to include widespread use of military bases and invocation of the Alien Enemies Act of 1798” (Isacson, 2025).</footnote>
In the same way France, chosen as the field for this research, has been demanding harsher immigration laws for years (RFI, 2023):

France is among the countries pushing for a much-debated overhaul of the EU's migration policies that would facilitate quicker repatriations of foreigners with criminal records and make it mandatory for EU countries to immediately repatriate non-Europeans who pose a security risk, among other changes.

With migration influx growing due to ongoing conflicts around the world, climate change, economic hardships, higher rates of unemployment, and so on, it is becoming increasingly more common for people to migrate to richer and more stable countries, where they have better chances of creating a good life for themselves and for their families. Furthermore, the aging of the general population in these wealthier countries, which exert greater economic pressure on public social security and the health system, combined with a loss of the economic active population that finance these public benefits, makes migration one of the answers to renovate the economy and the job market.

However, the rise in far-right movements across Europe<fnref n="2" /> with their anti-immigration agendas, creates a direct tension between nationals and immigrants, often leading to restrictive politics around the entrance and the stay in the territory, while also making it easier and faster to deport people, especially the undocumented ones and those who eventually committed a crime.

France is an example of this tendence, where it is possible to view the hardening of immigration laws, also influenced by the change in society's acceptance of immigration. The new French immigration law, also called *Loi Darmanin* after the minister of the interior responsible for passing it at that time, brought many changes to the national immigration scenario, some positive, but most negatively impacting migrants' lives.

Regarding documented migrants, there has been a hardening of their situation, when it comes to accessing a visa, a job or acquiring the nationality. With the new law, the *Contrat d'Intégration Républicaine* (CIR), a contract that non-European nationals sign with the

<footnote n="2">² The recent elections for the European Parliament and national elections throughout the continent show a growing tendency of far-right movements. In Germany, the 2025 federal elections showed that the AfD party is dominant in the east and is rapidly spreading to the west, arriving in second place in these elections (Kirby, 2025). In the 2024 EU Parliament elections, far right or populist radical right parties won in several countries. A great example of this is the French *Rassemblement National* (RN) party, run by Marine Le Pen, leading the French votes by 31.4% (Fella, 2024). Finally, in France, in the 2024 National Assembly elections, the RN gained a large ground, but did not win, due to a grand mobilisation of left and centrist parties, as well as their voters, creating a coalition called *Niveau Front Populaire*, to stop the far-right party from winning.</footnote>
French state upon their arrival in France aiming to facilitate their integration by requiring participation in civic and language training to obtain a visa, became stricter, with higher demands, such as the engagement in a course about the history and the culture of France, accompanied by a knowledge test (art. 20, *Loi Darmanin, Légifrance*). Moreover, there is also a contract of engagement to respect the republican principles and a minimum level of French language that is required for obtaining the residence permit, which is a level A2 (*Service Publique*).

Irregular migrants became even more targeted by the new legislation, as it reinstated the penalty of imprisonment of those caught leaving in France in an irregular state, criminal measure that had already been cancelled in 2012. Had it not been censured by the Constitutional Council<fnref n="3" />, the simple fact of being caught with an expired visa or no visa at all would be enough for imprisonment. On the same line, the Council also censored the possibility of imprisonment of immigrant minors living without their documents (*Loi Darmanin version initiale et Loi Darmanin version consolidée, Légifrance*).

Now, it takes at least ten years of continuous residence in the country to have a chance of regularising someone's stay, through a process called *admission exceptionnelle au séjour*. Along with the time length, the person also must prove a strong capacity of integration in French society and oral proficiency of the French.

Under the new official directive, approved on January 23rd, 2025 (*Circulaire Retailleau*, after the current minister of the interior's name, Bruno Retailleau), prefects are instructed to prioritize workers in highly demanded economic sectors, such as hospitality and construction (the so-called jobs "in tension"), over considerations of their private life, the presence of family here or even the engagement with the community.

The increase of conditions imposed on people to obtain or renew their visa, to regularise their situation, and to gain citizenship, pushes individuals to irregularity, as they are already in the country, they need to keep working, going to school, they have children and family here, but they cannot access the proper documentation, even if they want to, leading to a constant threat of receiving a distancing measure, while trying to rebuild their lives here.

<footnote n="3">³The Constitutional Council judged that the reestablishment of the crime of irregular stay in the territory (art. 17, did not present a link, even indirect, with the initial bill, and should, therefore, be considered as cavalier législatif and be cancelled.</footnote>
This state of vulnerability and irregularity leads to the question of what might happen to
somebody that has already spent a significant amount of time in France and effectively
integrated in the community but still receives a distancing measure. **Should long-term
residents be protected from expulsion as it is proposed by the principle of the right
to stay? Is this principle adopted by the French legal normative and is it enough to
protect these people?**

To answer the aforementioned questions, this study starts from a few hypotheses:

a) The right to stay is a normative principle that intends to explain why long-term residents should not be expelled from their host country after they have properly integrated with the community. For this matter, the word “right” is going to be used in its normative sense, even when referring to how it is perceived by the French legislation.

b) Moreover, this principle is adopted by administrative jurisprudence in an indirect way, which means that the foundational concepts, such as length of stay, creation of a family, local integration, attachments to the culture, social membership, are used to verify if someone dutifully integrated into French society, which would make the expulsion measure disproportionate and harmful for their private and family life.

c) Finally, the jurisprudence takes a negative approach towards the right to stay, meaning that the judge can deny the state's power to expel someone as it would bring great harm to their private and family life, but will not rule that someone acquired a right to keep living in France, especially without proper documentation.

The aim is to investigate in a theoretical level the meaning, and the usage of the normative
principle coined by Carens (2013, p. 14/15) when discussing the moral claim that long-
term residents should be allowed to continue living in their chosen country, protected
from expulsion. Through a network of authors that share the views of Carens when it
comes to denouncing the disproportionality of distancing these people, the goal is to
properly address the significance of integration into a society and what it means to be a
social member of it. It is a way of engaging with political scholars and jurists to
demonstrate how an individuals' integration to their host country and the same country's
sovereignty interact in migration policies.
Moreover, migration is also a pragmatical reality that involves hundreds of thousands of
peoples that build or rebuild their communities despite precarious legal statuses, or even
the complete absence of them. It is necessary, therefore, to analyse in what ways the
principle of the right to stay bridges the gap between theory and practice, showing itself
in situations when long-term residents' stability is challenged by a distancing measure.

Finally, while the principle is not explicitly recognized in French legislation and,
consequently, is not paraphrased in lawyers' appeals or judicial decisions, it is indirectly
invoked through arguments emphasizing sufficient integration into French society, such
as family ties, professional stability, education in France, legal protection of the children
involved, and also the protection of an individuals' right to private and family life of
article 8° of the European Convention on Human Rights (ECHR), criteria used by lawyers
to urge the state to not go through with the expulsions.

To assess the echoes in the current French jurisprudence and to verify if the principle
bridges the gap, this study inspects the interpretation given by the administrative tribunal
in Lyon, chosen as the territorial cutout for this research, and the way in which they apply
the principle, investigating whether the existing legal framework aligned with the right to
stay is sufficient to protect the people at risk of expulsion, through case law analysis and
interviewing lawyers specialised in immigration law.

By adopting an interdisciplinary approach, bridging political philosophy, sociology, and
law to critically assess the principle in migration studies, the present study challenges
how state perceives migrants’ social membership when executing or cancelling a
distancing measure. Ultimately, it seeks to contribute to theoretical debates, legal practice
and public policies, drawing attention to the state’s discretionary power of expelling
people who have already rebuilt their lives in pursuit of better conditions elsewhere.

## Literature review and theoretical framework

Expulsions have become a key policy tool against irregular immigrants, or even those that
are regular but have been accused of committing a crime or posing a threat to the public
order, to enforce state boundaries and their sovereignty. Non-citizens may enjoy certain
safeguards against distancing measures, such as being a minor, for example, which may
make it more difficult to expel them. However, these safeguards depend on several factors
and proofs, and they are not absolute, leading to a state of high vulnerability as these
people remain ultimately exposed to the possibility of expulsion in a way that citizens are
not, meaning that only citizenship is viewed as an absolute protection against states'
power to distance (Birnie, 2020).

This vulnerability leads to situations where people who have spent their whole lives in
the host country and, consequently, have created ties with the local community, built their
families, learned the language, contributed by paying taxes and working, but who have
not acquired citizenship, are forced to leave it all behind and to return to their country of
birth, which, sometimes, they do not have any memories of it and do not speak the
language.

Expulsion of long-term residents strikes many as unfair, as it also disrupts the local
community, that will lose a person that contributed to the well-being of that place.
Considering this, many political theorists, such as Carens (2013, p. 155), echoing these
concerns, started arguing that long-term residents should have the right to stay in their
chosen country and be exempted from the states arbitrary power to expel. They believe
that the forced deprivation of somebody's home hurts people in a fundamental way, since
"living within the territorial boundaries of a state makes one a member of society, that
this social membership gives rise to moral claims in relation to the political community,
and these claims deepen over time" (2013, p. 158).

This idea roots from the proposition that time strengthens migrants' ties to their host society, creating a social membership, as the longer somebody stays in a host country, the deeper their integration and their contribution to society is and, consequently, the stronger their moral claims for a right to continue living there, as expelling them would be unjust and immoral (Shachar and Hirschl, 2007). It is a membership determined by social and cultural life or community, which means that it is not a given fact, nor a natural element, but it is a social fact, a creation originated from man-made actions, to create human ties that will make them part of the host community (Rubio-Marín, 2000).

Rutger Birnie (2020) echoes the thoughts defended by the previous authors, arguing that
“long-term residents should be granted a right to say and exempted from the state’s power
to deport”, claiming that protection from expulsion is a human right, and it should not be
reserved only for citizens.

Furthermore, legal status should not be a hindrance for the migrant to enjoy this
protection, as the “theory of social membership corrects tendencies in democratic thought
to overvalue citizenship, by showing that (...) it grounds moral claims (...) to rights for
migrants who are not citizens” (Carens, 2013, p. 15), as undocumented people also create ties and contribute to their host society, even if most of the times, to do this they must resort to non-traditional ways, such as working in subpar conditions without being registered and living in precarious residences, usually overcrowded, as they are irregular and cannot enjoy the benefits of accessing public services, such as *France Travail*<fnref n="4" /> and public housing.

Literature often emphasizes the effects that living in a state of instability, threatened by the fear of being sent back to their country, has on people that are trying to properly rebuild their lives seeking economical assurance or running from persecution. The knowledge of the possibility of staying in a country for as long as someone needs or desires interferes in the creation of a better life and on the dedication that the person will have with the community. The notion of spatial security, which means the possibility of staying in a certain country for as long as needed (Fathi and Laoire, 2024), also identified as stable territorial residence (Birnie, 2020), is a basic background condition for human flourishing, since someone made the territory in which they reside the centre of their most fundamental life projects and attachments, creating a “societal accounts of non-deportability” (Birnie, 2020).

Moreover, the intersection of these values highlights a moral framework through which rights for migrants that reside in their chosen country after a certain amount of time can be justified, suggesting that their integration ought to result in enhanced rights beyond mere existential ones, such as the right to the respect of their private and family life.

Shachar (2009) goes further and refines the principle by proposing the *jus nexis* (“rootedness”), implying that the longer a person stays in a country, deeper the social connectedness that they will develop, resulting in a stronger claim for inclusion and for acquiring citizenship. While Carens also believe that people should not be denied access to citizenship, his proposition is not aimed at creating a new form of acquiring it, other than *jus soli* and *jus sanguinis*, but rather as a way of protecting long-term migrants from expulsion, even if they continue living as non-citizens. Shachar believes that these long-term migrants should be granted citizenship, counterbalancing the randomness of the *jus soli* and *jus sanguinis*, what she calls a birthright lottery as laws governing the acquisition

<footnote n="4">⁴ *France Travail* is a public establishment with an administrative role of helping job seekers in their search for an employment and assist business in their search for a worker (*Vie Publique*).</footnote>
of citizenship create and perpetuate radical inequalities of opportunity. For her, the only
way to be fully protected from State's discretionary power of expulsion is through
citizenship (2009), and that is why she propose the *jus nexis* principle, using the right to
stay as its foundation, but aiming at the acquisition of nationality.

On the other hand, a challenge to Caren's views could be made by affirming that granting
someone protection from expulsion based solely on the level of their integration to the
society, is not enough to properly protect all those that need it (Joppke, 2010; Ellerman,
2014; Baker, 2013, p. 249). The exclusive focus on social ties cannot explain why long-
term residents that have not reached full integration to the local community or have not
yet formed ties with it, as it takes time, should equally be protected from expulsion. Birnie
(2020, p. 374) believes that it is not accurate to base the decision of cancelling a distancing
measure solely on that person's ties to the country they chose to live in, as somebody who
is alone by choice or by ostracism also deserves to be protected.

Membership-based arguments run the danger of excluding migrants who fail to meet the
integration and rootedness criteria, such as a social reclus, from the protection of the
principle, even though they have lived a long time in the host country, rendering people
vulnerable to behaviour-based exclusions (Ellerman, 2014). Being perceived as failing to
integrate, is often used as a justification for deporting long-term residents who are
considered incompatible to the local culture (Barker, 2013, p. 249) an argument that can
be used as a tool of exclusion against certain ethnic or religious minorities, viewed as
“non-conform” the main culture of the country, and people who have been accused of
committing a crime, without legal condemnation.

Non-deportability based on social membership, focused exclusively on societal links
between the individual and the larger territorial community can be viewed as overly
attached to the outcome of gaining a citizenship, as long-term migrants who refuse to
naturalise even though they have access to it could be seen by the State as denying their
own societal membership (Birnie, 2020). Birnie states that non-deportability propositions
should be, at least partially, unlinked from citizenship, grounded in the collective right
that people retain to occupy the territory over which they have exclusive jurisdiction, also
called domicile. It is a domicile-based proposition, explaining that it is an individually
held status and does not change with membership status, composed by a fundamental
right not to be uprooted from the place one has made one's home.
Ellerman (2014) puts forward a more legally binding proposition to address the issue of long-term residents being expelled. Although she still sees the importance of Caren's view on the right to stay, based on social membership, she believes that it should be reinforced by a legal approach, based on the principle that state's actions should be predictable, according to the rule of law and the legal certainty, concepts that already refrain the administration from making arbitrary decisions to harm its people. She takes these principles and apply them to the migration terrain, explaining that it would allow a more solid protection for immigrants, even if they are undocumented or social recluse, as everybody is submitted to the state's actions and, therefore, the imposing of binding rules to administrative decisions creates another level of protection and stability.

By analysing their critics and their propositions, it is possible to visualise that they still base their ideas on Carens' insights, not denying the right to stay and still considering the social membership as an important mean of protecting long-term residents. They also share the idea that these immigrants should enjoy a status of non-deportability, although they use different perspectives and attachments to justify this non-deportability. Some, such as Birnie (2020), believe that this status should be grounded on their domicile attachments, while others, such as Ellerman (2014), offers a middle ground by sharing the idea that it should be based on the rule of law and legal certainty that already regulates state's acts. Others believe that the social integration should lead to the acquisition of citizenship beyond the fact of being born in the territory or inheriting it from another citizen (Shachar, 2009), basing it on the roots created with the specific community. This means that Caren's proposition is still strong enough to justify the protection of immigrants, regular or irregular, as a base from which other scholars can substantiate their ideas, and this is why this research is going to use his principle as foundation for its empirical studies.

The principle of the right to stay is normatively justified by the social belonging which should brake the sovereign's right of the state to expel a regular or irregular non-citizen (Carens, 2013, p. 160). In international policies regarding long-term residency, this sovereignty right varies based on national context, with different degrees of rigidity according to political and diplomatic reasons.

It is important to notice that there is a legal aspect of the right to stay, even if it is not a positive concept present in the domestic legislation. From a juridical point of view and at an European level, the European Union's Directive (2003/109/EC) created a status that
can be considered as subsidiary form of EU-citizenship, setting out the rights of third-country nationals (TCNs) who are long-term residents in Europe, the areas in which they can be granted equal treatment with EU citizens, and the conditions for moving to another Member State. It aims to facilitate the attainment of the EU internal market and the integration of migrants in host societies, obligating these governments to provide long-term residence and the rights that go with it to those that qualify for it, limiting their sovereignty when deciding the fate of TCNs that already enjoy many of the rights of citizens without formal nationality, challenging traditional concepts of state (Arcarazo, 2015).

The Article 12 of the Directive strictly regulates expulsion, stating that it is only possible when a person poses an actual and sufficient threat to public policy or public security, making it mandatory for states to take into consideration many factors before expelling someone, such as the duration of the residence in the country, the age of the person concerned, the consequences for them and their family members, the links with the country of residence, and the absence of links with the country of origin. Those are categories that fall directly inside the criteria that define the right to stay, elucidating the social membership of the TCNs concerned by the Directive. This legislation resulted in diverse migration laws across Europe, rendering more complex the scenario for migrants seeking permanent residency, even though the rights benefited by permanent migrants can still be subject to legal and social discrimination, depending on residency status (Römer, 2022).

In France, an EU state member that is legally obliged to adopt and follow the Directive, it is possible to notice the influence that it has when it comes to regulate the distancing measures. For instance, to expel somebody from French territories, there has to be proof that the person poses a threat to the public order or the republican values, as it is a very disturbing measure that should be used as ultima ratio by the administration. After somebody is ordered a distancing measure, he or she can appeal it by demonstrating strong integration to the French society, through labour, building a family here, speaking the language, engaging in volunteer or associative work, and so on. France views professional insertion, especially in jobs that are in high-demand and low candidatures, as very significant when it comes to proper integration, carrying a lot of weight in judicial decisions, showing that it is also a matter of who is more economically beneficial to the country.
While much of the existing literature on the right to stay focuses on its normative justifications, viewing it as a proposition that should be considered by the governments when faced with the decision of removing someone, little attention has been given to how courts and legal practitioners engage with this concept pragmatically, considering that in France the principle remains a normative right rather than a positive one, not translated to the legislation. It is possible to notice a gap between the theoretical realm, where scholars debate the principle and state that it should behave in a certain way, and the empirical realm when it comes to challenging state sovereignty in practice.

This research seeks to fill this gap by analysing the extent to which the French jurisprudence, more specifically in Lyon (region of Auvergne-Rhône-Alpes), considers the normative principle of the right to stay as a viable legal argument.

## Methodology

Qualitative method was chosen as cornerstone of this research, as it “properly seeks answers to questions by examining various social settings and the individuals who inhabit these settings” (Berg and Lune, 2011), being more interested in how humans arrange themselves and their settings and make sense of their surroundings. It is a type of research that explores and provides deeper insights into real-world problems, instead of collecting numerical data points (Moser A, Korstjens I, 2017).

As the setting of this research is an interdisciplinary study comprising jurisprudence analysis, philosophical inquiry of normative principles and pragmatical investigation of lawyers' work through interviews, rather than relying on numbers or statistics for it, the adoption of a qualitative method is more appropriate to carve out the information needed to support the reflexions of it.

It was used as the main source for a dialectical analysis (Dumez, 2016) the work of Joseph H. Carens, specifically his book “The Ethics of Immigration” (2013), in which he coins the concept of the right to stay and uses it in a migratory context, developing his argument around what he proposes as a social membership theory. Carens’ framework is particularly relevant as it offers a normative perspective on the principle, emphasizing integration and social ties rather than focusing on citizenship, providing a human-rights oriented base that allows for investigating distancing measures through a social integration lens.
Also, secondary sources were used to bring robustness to the theoretical part of this research, through books and articles that address the integration of migrants in their host community (Arcarazo, 2015; Shachar and Hirschl, 2007; Birnie, 2020), works that demonstrate the disparity between nationals and non-nationals that spent the same amount of time in the country (Ellerman, 2019 and 2014; Lochakto, 2022), and how the nationality can be used as a way of classifying people into those that are considered properly integrated in the French society and those that are not and, therefore, can be expelled (Benhabib, 2011).

The literature review provided a solid foundation for examining the right to stay and what qualifies as social membership by analysing how scholars interpret this phenomenon. It defined the concept, explored its implications, and presented various perspectives, both supportive and critical, establishing a strong basis for empirical research.

To gather original data, a more practical methodology was selected, consisting of case law analysis and semi-structured interviews. This jurisprudential research was done to analyse if and how the right to stay shows up in the administrative judges' decisions in Lyon, and what are the terms used to configurate it (such as the length of stay, the building of a family, the fact of having a job, etc.), in order to verify if the principle is considered when overturning or upholding a removal order.

As case law analysis, with the necessity of having a well-defined methodological approach, it was decided to focus on the jurisprudence of the *Tribunal Administratif* located in Lyon, city where this author is pursuing her degree, and an important centre of immigration, being the second region with the largest number of migrants in France, after Paris (Rue89Lyon). The time frame chosen was that of the promulgation of France's new immigration law, called *Loi Darmanin* (*Loi du 26 janvier 2024, pour contrôler l'immigration, améliorer l'intégration*), until January 26th, 2025, exactly a year, choosing jurisprudences delivered in each specific month until reaching saturation of data, in order to analyse the principle in light of a new law that brought several changes to the politics of immigration in France.

Looking through the administrative decisions on the website where they are regularly published (Open Data) and using as key words “expulsion” and “distancing measures”, this author came across many jurisprudences, and after careful analysis of 10 decisions per month in the frame of a year (120 jurisprudences in total), it became clear that the
same arguments were being used repeatedly, reaching a saturation of data which lead to
the answering of the questions proposed by this study. Although the second instance of
the administrative jurisdiction, the *Cour Administrative d'Appel*, also receives appeals
concerning removal measures ordered by the prefecture, its rulings generally uphold the
decisions of the first instance, rarely diverting from them and often adopting similar
arguments. Therefore, this research focuses on first-instance decisions, as the
jurisprudence of the Courts did not offer significant additional insights and data saturation
had already been reached.

To better visualise the arguments used by the lawyers to defend their clients and also the
ones used by the judges to support their decision, it was organized a table with the number
of the decision, the type of measure, the result of the appeal, the lawyer's arguments, the
judge's arguments, the country of origin of the migrant and the time that they have been
living in France (see Attachment A). Then, these legal decisions were analysed for
recurring reasoning, criteria used by the Tribunal in Lyon, and the weight given to
integration, personal and family ties and the length of stay in France, which are all
characteristics of the principle of the right to stay.

Finally, this study relies on 10 semi-structured interviews conducted with lawyers<fnref n="5" />
specialised in immigration law and whose offices are in Lyon, as it is the geographical
marker of this study, to verify what are their perception around the principle, if they use
or not and how they view the judge's approach to it. A table with the information of the
lawyers that accepted to be a part of this study was organized (see Attachment B). Emails
with invitations for the interviews were sent throughout the months of February and
March with a short description of the study and the questions (see Attachment C), and
interviews were conducted in person, each taking around 40 minutes. A guide in French
was prepared and followed through (see Attachment D), with questions regarding their
work, how they view the right to stay and their impression about the judges'
argumentation.

These lawyers work directly with migrants who have been issued a distancing measure,
either an OQTF or an expulsion order, and are responsible for appealing these decisions
before the Tribunal or the Court. Their role involves presenting sufficient proof of
integration to demonstrate that their clients should be allowed to continue living in France

<footnote n="5">⁵ The lawyers have been named from 1 to 10, to respect their anonymity.</footnote>
and that expelling them would be disproportionate and would hurt their right to private
and family life, essentially advocating for the right to stay.

The interviews were recorded with proper authorisation, and it was decided to anonymize
the lawyers for security and ethical reasons, even though they did not explicitly request it
and even indicated that they would have no objection to their names being used in the
research. All interviews were subsequently transcribed and analysed with the aim of
comparing legal theory to the views and experiences of practitioners. This approach was
taken to address the central question of whether the principle is adopted by the French
legal framework and if it is enough to protect long-term migrants from expulsion.

By combining theoretical and practical research methods, through qualitative analysis of
jurisprudence and interviews, it was possible to examine whether Carens' proposition of
the right to stay finds echoes in French legal decisions, particularly in Lyon, assessing
how normative principles related to long-term residence and integration reflect in judicial
reasoning. This approach allows for an evaluation of the interaction between moral and
legal principles and jurisprudential practice.
## 1. The right to stay and its consequences.

The public debate in modern day society shows a mistrust towards immigrants, with countries closing their borders, increasing the policing in their frontiers, deporting more regularly and quicker immigrants deemed as a dangerous to the society.

Although deemed as a threat to society or as an economic burden, most of these people left their countries of birth in search of a better life for themselves and for their families elsewhere, rebuilding it from the ground up. In the host country, they contribute to the economy by working and paying taxes, usually in jobs that many nationals do not want to do, also getting involved in the community, creating ties with the other citizens and foreigners, raising their children according to the language and the culture of the place, to summarise it, becoming social members of the country.

It is important that public policies are made to create better conditions for those that already integrated it, so that they can continue living in their chosen country, raising their children and planning a future, seeking better economic and social security. It is disproportionate to expel them after they created ties with the community (Carens, 2013, p. 158), and they should be able to live there without the constant fear of being removed.

In the first section of this chapter, this research will debate the ways in which citizenship can be used as a tool to exclude those that are viewed as being too different to assimilate to the majority or as a threat to the public order. In the second one, it is going to be debated the ways in which someone can acquire citizenship and why it is important to facilitate its access for long-term migrants and children of immigrants born in the country, as citizenship is still the most secure way of being protected from distancing measures.

The third section will address the burden of immigration and why immigrants suffer from a *double peine*, being criminalised by eventual crimes that they might commit, but also for the fact of choosing to live in a different country. Lastly, in the fourth section, the study will analyse the origins of the principle of the right to stay and the ways in which it is approached by different authors, with their refinements, but always resourcing back to Carens' definition as foundation, to explain how and why long-term residents that are not citizens should also be granted protection from expulsion.
1.1 *A matter of citizenship*

Citizenship has been described as an “international filing system, a mechanism for
allocating persons to states” (Brubaker, 1998). It is also “a legal bond having as its basis
a social fact of attachment, a genuine connection of existence, interests, and sentiments,
together with the existence of reciprocal rights and duties”, as defined by the Nottebohm
case (ICJ, 1955, Nottebohm – Liechtenstein v. Guatemala), judged by the International
Court of Justice, which ruled that Lichtenstein was not entitled to take up his case and put
forward an international claim on his behalf, because internationally, “the grant of
nationality is entitled to recognition by other States only if it represents a genuine
connection between the individual and the State granting its nationality”, which was not
the case for Nottebohm (ICJ, Nottebohm – Liechtenstein v. Guatemala).

Citizenship is considered an aspirational status that entitles its holder to a set of rights that
bond together people that live in a certain state, rights that are protected and perfected by
the state in question, through the cautious deployment of institutions relating to human
rights.

There are two common ways of acquiring citizenship at birth: *jus soli* (right of the soil), which grants citizenship to everybody that is born in the territory, regardless of their parents’ origins; and *jus sanguinis* (right of the blood), which grants citizenship based on the parents’ origins, transmission of citizenship through heredity, both ways usually resulting in the automatic transmission of citizenship (Carens, 2013, p. 32).

In Europe, the most common form of acquiring a citizenship is through a mitigated *jus sanguinis*, which includes aspects of *jus soli*. European countries do not adopt absolute and unrestricted *jus soli*, as most countries in Central and South America do.

Until the end of the *Ancien Régime*, the right to citizenship relied mostly on *jus soli*
inherited from serfdom. The modern national citizenship was an invention of the French
Revolution. According to Brubaker (1992), the model of citizenship present nowadays
was not created out of nowhere, as it was built on the theory and practice of state-
membership in the ancient regime. However, the formal delimitation of the citizenry
entailing shared rights and obligations and the distinction between foreigners and citizen
were firstly brought by the Revolution on a national level.

Even though the legal distinction between French citizens and foreigners originated in the
late medieval consolidation of royal authority over seigneurial rights, it was not yet
clearly defined at that time. Citizenship remained rudimentary. Despite that, in early
modern France, there existed already an embryonic legal status of citizenship or
nationality.

In early modern France, the qualité de français mattered and was used to resolve issues regarding the inheritance of property, being determined case by case. In the sixteenth century, one had to be born in France, have at least one French parent and be domiciliated in the country to be considered French (Brubaker, 1992).

By the eighteenth century, domicile was still necessary, but in addition to it, it was enough
to have been born in France or have been born of French parents (Brubaker, 1992, p. 87).
This evolution and shift towards a more inclusive criteria were done based on the issue
of inheritance, resulting from a concern that people domiciliated in France would not be
arbitrarily deprived of an inheritance because they had been born abroad or born to
foreign parents.

During the preparation of the Civil Code, the topic of citizenship in the modern sense was reinstated, as it was clear that all French people should enjoy the same civil rights, but foreigners should enjoy them only on the basis of reciprocal agreements between their state of origin and France, so it was necessary to distinguish who was considered French and who was not (1992, p. 87). The Civil Code adopted the *jus sanguini* as the main way of obtaining the nationality, keeping the inheritance aspect of it, but it was discussed the necessity of adopting aspects of *jus soli*, as the birth in French territory was still seen as important and decisive in terms of acquiring the nationality, even if the child was born of foreign parents.

It was then, decided that the most important aspect for those children was the willingness
to become French by living in the territory and contributing to it, so the Civil Code
established the *jus sanguini* criteria<fnref n="6" /> and added the possibility of children born from
foreign parents claiming nationality at majority by declaring their intention of fixing their
domicile in France (1992, p. 89). *Jus sanguini* was explicitly affirmed as the fundamental
principle of French citizenship law, as “Jus soli was rejected as a feudal survival, jus
sanguinis endorsed as a specifically modern principle”. (p. 95).

<footnote n="6">⁶The *Code Napoléon* (1804) brought the first systematic definition of nationality, giving primacy to us sanguinis, as only children born from French fathers were automatically considered nationals. It is important to highlight that only man passed on the nationality (Coursdedroit.net/histoiredelanationalité).</footnote>
This blood regime persisted for many years, being the *status quo* of Europe after Napoleonic conquest, helping maintain the bond of its people around a shared “blood”. With the big emigration waves leaving Europe towards the “new world” during the nineteenth century, the law of the blood helped maintain the civic bond of those that emigrated and their heirs, to their country of origin. Even though they had left their home countries, and their children had never set foot in it, they were still considered citizens, in the social and legal way of the term, as it was expected that they would someday return, that the migration was temporary, which turned out not to be the case most of the time.

Around the twentieth century, the *jus soli* was strongly adopted in Europe as the countries realised that they had become territories of immigration to and settling in, not just emigration, as it was the pattern in the 1800s<fnref n="7" /> (Harzoune 2022). The changes in citizenship were also consequences of years of immigration of “guest-workers” to Western European states, during the 1950s and 1960s, who were expected to go home after a few years of working there. Even though some of them eventually returned, many others stayed permanently and had children, which were, in turn, considered foreigners their whole lives, even after living in the territory for a long time or being born there, as the country adopted exclusively the *jus sanguinis*.

Some of them, eventually, were able to become citizens through naturalisation, but most didn't, as it was usually a very bureaucratic and discretionary process, often not encouraged by the host country (Carens, 2013, p. 85). In turn, they continued living there and had children, which were also considered foreigners. It became clear that unless the rules for acquisition of citizenship were changed, there would be many generations of people whose families had been living in the country for a long time, but who were still excluded from citizenship.

Considering this, elements of the *jus soli* were introduced in many countries to challenge the perpetuity of the irregular conditions that the migrants would see themselves and their children in. In Germany, the Code was altered in 1999 to include *jus soli* elements, enabling young people of foreign origin to acquire German nationality more easily. In doing so, it allowed children of foreigners born on German territory, whose parents were

<footnote n="7">⁷The expansiveness of French citizenship has more to do with a system of *jus soli* that automatically transform second and third generation immigrants into citizens, than on a liberal naturalization practice, according to Brubaker (1992, p. 85).</footnote>
also born in the country and have lived there for a significant amount of time, to be
considered German from birth, while keeping another nationality, where applicable.

In countries like Italy and Switzerland, being born there does not automatically grant the country's nationality as it is necessary that at least one of the parents is of Italian or Swiss nationality for the child to inherit it. For others, they must show proof of having resided there for ten continuous years and the children are only allowed to start the administrative procedure on reaching the age of 18, along with the continuous residency.

Both ways of acquiring the citizenship are recognized alongside in around 30 countries, such as the U.S.A., Canada, Mexico, Chile, Argentina, Ecuador, where children born in the territory are granted automatically citizenship of the country. However, they can also be granted the nationality if they are born outside the territory, from parents who are already themselves citizens, and if due diligence is done, such as registering the birth in the consulate.

Some countries, such as France, adopt the double *jus soli*, which means that in addition to the *jus sanguinis*, they also apply conditional *jus soli*, which means that a child born in these countries acquires the nationality if at least one of their parents was also born there. Due to this, a child born in France of foreign parents automatically acquires nationality on reaching the age of 18 if he or she had lived in the country for at least five years, after the age of 11 (*Service Publique*).

Much has been discussed about which type of nationality acquisition is fairer, more republican or more just. Arguments include the legality of it, and the morality of including restrictions, which consequently end up excluding people who do not fulfil the criteria. Even on countries known for its long history of *jus soli*, such as the U.S.A., there has been public debate<fnref n="8" /> and pressure on whether to continue adopting this rule, more beneficial to migrants and refugees.

Supporters of a “civic” as opposed to an “ethnic” ideal of polity believe that civic nationalism would entail a *jus soli*-based mode of acquiring citizenship, whereas a *jus*

<footnote n="8">⁸ In one of his first acts as president of the U.S.A., Donald Trump signed an executive order aimed at ending birthright citizenship (*jus soli*), granted to anyone born in the country, denying the citizenship to children of migrants who are either in the country illegally or on temporary visas, changing the 14th Amendment to the US constitution, which dates back to the 18th century (BBC, 2025). However, implement this executive order won't be easy. There has already been a legal decision to block Trump's order, by Senior US District Judge John Coughenour, which called this order 'blatantly unconstitutional' (Le Monde, 2025).</footnote>
*sanguinis* is based on the conflation of the *ethnos* with the *demos*, of “belonging to a people” with “membership state” (Arendt, 1951).

*Ethnos* is a Greek word that means nation, people, tribe, whereas *demos* means populace, the common people of an ancient Greek state. In using those words to define the *jus sanguinis*, Arendt wanted to show that the transmission of citizenship through blood reinforces that sense of belonging to a particular “tribe”, despite geographical location, as the citizenship will follow its citizens, even if they are born outside the country of origin. It makes belonging to a people of a state, having access to its membership, easier for those that are deemed as part of the tribe, united by blood, so to say.

On the other hand, the *jus soli* is the model of a civic nationalism, because, in order to acquire the nationality of that specific country, the person actually needs to be born there, or sometimes be born from parents that are already citizens or have been living there for a certain amount of time, which implies that the individual will conduct civic duties to the country where they were born, or that their parents are already fulfilling these civic requirements. It is considered a more pluralistic and democratic way of acquiring citizenship, as it is not based on ethnic lineage, which undoubtedly exclude some that are born in the same territory as others but do not dispose of the same ethnic lineage. The mutual recognition of each-other as right bearing individuals is what constitutes true meaning of political equality, which is at the roots of *jus soli* (Arendt, 1951).

This shows that European countries have reached a common knowledge of the fact that the growth of its population is also happening through immigration. Once countries of emigration, right now the phenomenon is the opposite, as these same countries are seeing a significant increase in immigration and are highly dependent on it, especially for their workforce, for maintaining their social benefits and the job market functioning.

First, states recognized the need of granting citizenship, or at least granting the right to it, to third-generation children, as it was rarely likely that they would be returning to the country of their grandparents. According to Carens (2013, p. 36), by adopting some sort of *jus soli* law, these states “have recognized the principle that the descendants of immigrants deserve birthright citizenship when there is good reason to believe that they will grow up in the state where they were born”. He goes further to say that countries that do not grant citizenship to these children are failing to meet basic democratic standards of justice.
It is morally unjust to deny third generation the access to the nationality of their country, as it creates obstacles for the enjoyment of all the rights that a citizen has there, even though they already share the culture and language of nationals. This hesitation to recognize them as members of the society was often driven by concerns that these individuals would return to their ancestral countries, thereby failing to fulfil obligations toward the host country.

Soon it became clear that it was not a tendency amongst these people to return to their ancestral country, and that this migration was not temporary, but rather permanent. First, this alleged country of return is not considered their home country, as they were born in their host state, where their parents were also born, and they usually do not share much anymore to the territory that once their family called home, sometimes not even speaking the language. They do not have any fond memories, have not passed their childhood there, so the chances of them quitting the country where they were born, they were raised and have all their social attachments, for another are very slim.

Moreover, even if these individuals choose to leave the country after acquiring citizenship, this alone should not justify revoking their status. Despite their departure, they remain connected to the host country through their parents, who lived, contributed, and built ties within the society, while fulfilling their civic responsibilities. This grants them the right to be recognized as citizens, a right that extends to their children that were also born there. The notion that they lack the same “blood” that binds society is no longer a valid basis for exclusion, as democratic states no longer define belonging through blood ties but rather through shared civic and social bonds.

Those that already have the nationality and decide to live abroad their whole lives do not lose it, on the grounds of not having spent enough time in their home country. This shows that it is not fair to deny the people who were also born in the same country, but whose parents are not nationals, their right to citizenship based on this argument.

Adopting a *jus soli*, or some degree of it, allows people to regularise the situation of their family in another country, even if they, themselves, might not access this citizenship. Their children will be able to grow up as nationals, having the legal ties to the country, being able to fully enjoy rights, to exercise their political power and deeply integrate with the community.
It is important to see that their parents made the decision of moving to another country, either to flee persecution or to build a new and better live, with more economical stability, employment, better education, for them, but also for their family. They endured all the immigration process, the bureaucratic difficulties and the severance of their roots to their home country, to go abroad and try again, building from the ground up. They deliberately decided to stay in the host country, to contribute with it and to be a part of that society, which shows that at least their children deserve to be considered socially and legally citizens.

The adoption of citizenship based on the right of the soil also helps prevent statelessness within this vulnerable group. Countries that ratified the Convention on the Reduction of Statelessness<fnref n="9" /> are obliged to enact laws as a solution for statelessness, a condition that affects millions of people around the world. Statelessness is the complete absence of a nationality, a lack of tie with the jurisdiction of any country, which leaves the person unprotected and unable to enjoy their rights and fulfil their duties as social members of that country. While some migrants may also be stateless, this is not always the case. In fact, most stateless persons have never crossed an international border, as their lack of official documentation often prevents them from leaving their country.

For those that arrived already as adults and, therefore, do not benefit from the privilege of being born in the territory or of having spent most of their childhood there, the most secure way to gain citizenship is through naturalization, which is the course of action undertaken to become a citizen of a country other than the country one was born in, requiring the presentation of several documents and a minimum stay in the country in question.

In France, for example, there are two main ways to obtain the nationality: declaration of nationality and naturalization. The first way concerns those married or in a relationship with a French person, like a descendant, a sibling, or if they were adopted by simple adoption or collected by a French citizen. Whereas the naturalization *stricto sensu* concerns all the other cases, and is subject to several conditions, such as the length of

<footnote n="9">⁹ The Convention, adopted in 1961 by the United Nations as a multilateral law foresees that sovereign states agree to reduce the incidence of statelessness, by adopting public policies and legislation to achieve this goal, agreeing that stateless births on their territory attracts the grant of their nationality. Stateless persons may take the nationality of the place of their birth or of the place where they were found, otherwise they may take the nationality of one of their parents.</footnote>
residence in France and if the person was born in France to foreigner parents (*Service Publique*).

There are some peculiar conditions that are related to this research, such as the absence of an expulsion order or a prohibition of entering the French territory still in force, and the assimilation to the French community, which means agreeing with the principles and core values of the Republic and having knowledge about the history and the culture of France.

## 1.2 *The grounds for acquiring a citizenship.*

The conditions of access to the French nationality, such as integration and the length of the stay in the country, can be considered as elements of the so-called social membership, as they are ways of assuring that the person receiving the citizenship has adopted the values of the French culture as a way of allowing only those viewed as properly integrated to the country to have the nationality and all its implications.

However, it is necessary to question the right of the state to impose conditions to those that want to access the nationality, to verify if it is democratic to make it mandatory for migrants to meet certain conditions before gaining citizenship and, if so, what sorts of conditions states may require, such as a language test, cultural knowledge evaluation, and so on (Carens, 2013, p. 45).

From a democratic perspective, citizenship policies must balance national sovereignty with principles of fairness and inclusion. While states have the authority to regulate naturalization, as it derives from internal law, excessive restrictions that exclude long-term migrants challenge the very foundations of democratic governance. Carens believes that denying citizenship to children who migrate at a young age creates arbitrary distinctions between people who share similar social realities, reinforcing structural inequalities, which is unjust and undemocratic

Granting automatic citizenship to these children aligns with the principle of equality, as it is already the case for those born to citizens. That is because the child, more precisely when he or she grows up and become an adult, has strong interest in seeing themselves and being seen by others as a member of that specific community and the state has a duty to respect their right, because it has admitted these people inside its borders.
The argument that children born from immigrant parents have weaker ties to the host country compared to their native-born peers is problematic and usually not true, as it assumes cultural heritage outweighs lived experience. These children develop deep social, educational and linguistic attachments that bind them to the society in which they find themselves, despite their family being multicultural, and having different cultural roots. Denying them citizenship based on ancestry, rather than integration, risks perpetuating exclusion and goes against democratic commitments to social cohesion and non-discrimination.

Furthermore, governments often use civic and language tests as prerequisites for obtaining citizenship through naturalisation, even from people that are already formally integrated. While, as Carens (2013, p. 57) notes, most people are capable of passing these tests, and it is indeed beneficial for migrants to understand the local language and culture, the use of such exams as a condition for naturalisation is neither justifiable nor morally defensible as a means of enforcing full integration.

Theoretically, the ideal goal of these tests is to push people to better integrate before acquiring the nationality, usually they are too difficult and are designed to exclude, not to include. It also views citizenship as a prize to be attained by the most “worthy” ones, the ones that are competent enough to participate in democratic and political debate, as viewed by the country.

These people would otherwise already be considered citizens, social members of their communities, were it not because of the tests that one is constricted to pass to gain this right.

Regarding the adult long-term migrants, it is equally undemocratic to require criminal records for naturalisation processes, as in the same way that countries do not strip the citizenship of people who have committed crimes, they should also not condition the acquisition of citizenship for immigrants who arrived at a young age and already established themselves, to the absence of a criminal record (Carens, 2013, p. 178).

This means that citizenship, either the acquisition of it or its maintenance, should not be conditioned to good behaviour or societal preconditions, as citizenship is a fundamental right tied to identification, belonging and political membership and it should not be treated as a conditional privilege, undermining its role in ensuring equal social belonging,
leaving it to state's discretion, contingent upon what an individual thinks or believes and
what is their religion (Benhabib, 2011).

Other than that, the concept of good behaviour is highly subjective and open to
interpretation. Governments could easily use it to harm specific groups, leading to
discrimination on several bases, such as race and class. It is already known to humankind
the deleterious effects that weaponizing citizenship can have on vulnerable people<fnref n="10" />.
Either its concession or its withdrawal, when done arbitrarily by a state with the intention
to harm somebody or a group of people, can disfigure the advantages of belonging to a
country, when it is wielded not as a shield that protects dignity and personhood of its
bearer but rather as a sword that states can command to harm or to oppress (Jain, 2013).

One way of using citizenship as a weapon is through a so-called “zombie citizenship”
(Jain, 2013), that happens when somebody is attributed a citizenship to which he or she
has no relationship to and that can bring more harm than good. The author gives two
examples: the first one is regarding minorities in the United Arab Emirates, also called by
Noora Lori (2020) the “offshoring citizenship”.

In order to regularise its long-term resident minorities, most of which had lived for several
generations in the country but were never viewed as citizens, the UAE's Ministry of
Interior decided to issue stateless identity cards to stateless individuals and those with
pending naturalisation applications. Later, they were issued identity cards and passports
bought by the UAE from the Union of Comoros. Individuals, then, received the
citizenship of Comoros, a country to which they had no relationship, and which could
offer them no protection and no rights. This allowed the Emirates to deny them the
country's citizenship, while not infringing any international rules regarding stateless
peoples.

The second example is regarding the U.K. intension of revoking citizenship from people
suspected of being terrorists, on the grounds that they can go back to their former

<footnote n="10">¹⁰ During the years that Germany spent under Nazis' rule, withdrawal of German citizenship was widely used as a weapon against ethnic minorities and dissidents, such as Jews, quakers, communists and Jehovah's Witnesses. Such expatriations had far-reaching consequences for the peoples affected, as it left them stateless and, therefore, vulnerable to the states discretionary power (Geschichts Werkstatt). In Myanmar, after the military coup, several high-profile dissidents were stripped of their nationality by the military, becoming stateless in their own state, as the country does not allow dual citizenship. Emerlynne Gil, deputy regional director for research at Amnesty International, says that the measure is inconsistent with international law and that citizenship terminations "appear to be part of a climate of retribution in the country, where military authorities use any means no matter how cruel or unlawful to silence opposition" (Nachemson, 2022).</footnote>
nationality, from Iraq, for example, and would not be rendered stateless on account of denationalisation by the U.K.

This putative citizenship is a way that countries found to circumvent international laws that protect people from statelessness, making individuals lose the protection of asylum, or becoming stateless, while acquiring either little to no substantive citizenship rights, sometimes speculative ones, from countries which they have never set foot or have no cultural heritage.

There's also the precarity of citizenship, when states are able to discretionarily revoke one's status, in other to harm them or to exclude them from society. It is possible to trace the use of denationalisation from the early twentieth century onwards (Gibney, 2020), showing that historically, citizenship revocation has been used to select people based on national origin, gender, naturalisation, creating the group of those that belong, and those that do not, even if they were all born in the same territory and have spent the same amount of time living there. He states that "contemporary denationalization power is still a powerful tracer of groups within the polity who, despite holding formal citizenship, are viewed as foreign" (2020).

Citizenship revocation continues to operate based on group-based exclusion, applying only to certain categories of citizens, such as naturalized immigrants with dual nationality. It is also used as an anti-terrorist provision, targeting citizens originated from Muslim-majority countries who are suspects of committing terrorist acts, in marked contrast to the treatment of non-Jihadist terrorist suspects who are not swept up under denationalisation enforcement, such as the example of the U.K.

Contemporary denationalisation not only perpetuates its discriminatory legacy but also reinforces a stratified conception of citizenship by creating a class of people that is always vulnerable to revocation. Since the prohibition of statelessness restrict nationality stripping to dual citizens, it disproportionately targets naturalized individuals, treating them as people who still bear the taint of their immigration. This stratification and selective insecurity undermined the very principle of equal citizenship of the right to stay itself, as it disregards the social integration that these people went through to access the nationality on the grounds of the fact that they can never shed the fully stigma of their foreignness.
In addition to social marginalization, migrants face legal exclusion through expulsion measures, as even naturalised people can lose their nationality and be expelled. The same applies for long-term residents who, despite having built stable ties to their host country, remain vulnerable to removal. The “taint” of immigration follows these individuals through their process of integration and even after their naturalisation, always exposing them to the threat of removal.

### 1.3 *The burden of immigration*.

Immigration is often burdened with depreciation, disqualification, and stigmatization, from the simplest acts of immigrants to their unlawful ones. Every behaviour, particularly the deviant acts, is seen as a reflection of immigration itself, further reinforcing its negative perceptions. While crimes committed by nationals are absorbed into general crime statistics and are quickly forgotten, those committed by immigrants, especially undocumented ones, are scrutinized differently. In these situations, the individual's legal status becomes the focal point of public discussion, rather than the crime itself, often overshadowing it. This selective framing fuels stereotypes and wrongly associates the entire immigrant community, with all its pluralistic nuances, with delinquency.

This means that not only is the person being condemned for committing a crime, or an offense, but also for being a migrant. The sole fact of having moved to another country with the intent of staying there is considered a crime, it is a double penalty, a manifestation of state hypocrisy, as migrants are needed for labour but are denied full membership and protection from expulsion (Sayad, 1998). According to Sayad, in France, this approach comes from a hierarchical relationship between the former metropole and its ex-colonies and is present in the judgements that the society and the state make regarding migrants, and not only those judgements done at the courts. It is at the root of the collective thinking of nationals, as the fact of immigration itself is considered as a fault, a failure or an anomy, as “the immigrant’s presence is always viewed as a default, an absence, or due to an absence, a presence that, ideally should not be there” (1998).

It is also a way that states found to revoke the nationality, and all the rights attached to it, from groups deemed as “menaces” to the government, or simple ethnic minorities viewed as “nuisances” to the regime, by buying and giving the citizenship of a third country, usually very poor and with flagrant human rights violations, to these people. In doing this, these people will not formally become stateless, so the country in question would not be
infringing any international law, but they will not have access to the citizenship of the
country in question, remaining for that matter, a migrant, being subjected to discretionary
treatment and even expulsion, such as the Emirates' example.

The usage of citizenship revocation as a threat has been linked to the post-9/11 expansion
of state security measures and has been justified as a necessary tool to prevent terrorist
acts, being viewed as a method to reduce transnational terrorist attacks (Trimbach and
Reiz, 2018). In Europe, after the Charlie Hebdo attack in Paris<fnref n="11" />, the French president at
the time, François Hollande, proposed a revision of the constitution to allow the
withdrawal of birth citizenship from French citizens that engaged in terrorist activities.
The proposal was abandoned after the legality and constitutionality of it were disputed.
Belgium proposed a 12-point antiterrorism package that previewed the removal of the
Belgian citizenship of naturalised dual nationals on the grounds of a sentence to more
than five years in prison for a terrorism offence. The law was passed and took effect in
July 2015, stating that the citizenship can be removed by a judge.

The practice of revoking citizenship on the grounds of good behaviour transforms it into a revocable privilege instead of a right, exposing people to statelessness and vulnerability, consequently enhancing state's discretionary and arbitrary power. Wrongdoings should be addressed properly through the country's legal system and not using the immigration law.

Responding to criminal acts by using immigration law happens because "'[i]mmigration
law needs less precision than criminal law and thus unknowability flourishes here'.
This
can be seen in the context of the indefinite detention of (always male) terrorist suspects,
which, because it is based on secret evidence, has remained largely unchallenged by
human rights law" (Ellerman, 2020, p. 12). This shows a mingling of criminal law with
immigration law, associating the fact of living in a different country than someone's birth
country, automatically as a factor of suspicion. It means the blurring of boundaries
between administrative and criminal law, and between civil and criminal law, when it
comes to immigration detention and the use of preventive orders that implies criminal or
quasi-criminal liability.

<footnote n="11">¹¹ On January 7th, 2015, a series of terrorist attacks and mass shootings killed 17 people, including 11 journalists and security personnel at the Paris office of Charlie Hebdo, a satiric magazine. It was perpetrated by members of the Islamic State in Iraq and the Levant (ISIL) (Petrikowski, 2025).</footnote>
This phenomenon received the name of “crimmigration”, a term used by criminal defence and immigration attorneys, referring to a body of law in the immigration law that deals with criminal offenses and their effects on someone’s immigration status. It is the instrumentalization of criminal law and criminal procedure, diverted from their purpose and used in the fight against irregular immigration, thereby reinforcing administrative arbitrariness instead of regulating it.

Up until the mid-1980’s, criminal and immigration law had operated as separate spheres. Matters of admission, or not, to the territory and removal from it, in case of illegal or overdue state, were treated by federal laws and federal immigration officials, whereas anyone accused of committing a crime was apprehended by police officers and went through the criminal justice system, with its due process of law, being properly punished, if convicted, regardless of their administrative status (their papers, or lack thereof).

However, around the middle of 20th century, things started to change. These two spheres started to mingle, and it became more and more difficult to separate them. According to César Cuauhtémoc García Hernández (2017):

> today, it is often hard to explain where the criminal justice systems ends, and the immigration process begins. The single most common type of crime prosecuted in federal courts is about immigration. Meanwhile, people facing the possibility of removal from the US are frequently locked behind stell doors and surrounded by barbed wire.

Crimmigration is particularly harmful for undocumented migrants, that are more at risk of being expelled, even after spending a long amount of time in their host country. Now, migration-related actions, such as overdue of a visa, illegal entry or illegal overstay, are treated as criminal offenses rather than administrative violations. It reflects an approach that frames migration, often a human necessity, as a security threat or a crime.

As stated by Sayad (1998), the question of the supposed criminality of immigration is “misframed, burdened with prejudices, laden with suspicion, and shaped by accusatory and stigmatization intensions”. Migrants, as any other groups of people, such as the born citizens, can commit crimes, but that does not mean that immigration should be viewed as delinquent, or that every migrant is a criminal in the making, like no citizen is inherently a criminal in the making.

An analysis of French legislation reveals that this phenomenon is embedded in the legal framework itself. A significant portion of the *Code de l'entrée et du séjour des étrangers et du droit d'asile* (CESEDA), responsible for establishing the legal parameter of
migration in the country, is dedicated to sanctions<fnref n="12" />. These provisions penalize irregular entry and stay, the assistance of unauthorized stay, and non-compliance with removal measures, among other infractions.

Another important aspect of crimmigration is that visible minorities from multicultural backgrounds are more frequently subjected to police checks and, consequently, more often arrested. Once in court, with the same profile and the same offense, foreigners are more likely to be convicted, and the sentences they receive are longer, according to the *Observatoire international des prisons* (OIP - SF). After being caught in the gears of the criminal justice system, foreigners appear to face discriminatory treatment at every stage of the process, ultimately increasing their likelihood of incarceration: greater reliance on preventive detention and immediate trial hearings, limited use of alternative sentences, etc. As a result, they are overrepresented in prisons. In 2018, 99.6% of convictions of foreigners in France concerned misdemeanours rather than felonies (*Ministère de la Justice*). That same year, foreigners accounted for over 27% of thefts and driving without a license offenses, and over 13% of drug possession, acquisition, and use offenses (OIP - SF).

According to 2019 research conducted by the *Institut national de la statistique et des études économiques* (INSEE, 2018), foreigners were primarily implicated in economic and financial offenses, such as illegal labour, counterfeiting, and theft. It shows a disproportionality regarding the punishment of this group, as they are targeted and condemned for crimes that usually do not have serious consequences when committed by citizens.

When it comes to economic and financial offenses, it is important to remember that asylum seekers that had their plea rejected at the *Office français de protection des réfugiés et apatrides* (OFPRA), the first administrative stance that analysis the demand, and also rejected by the *Cour nationale du droit d'asile* (CNDA), a jurisdictive instance that judges appeals against OFPRA's decisions, do not have the right to work, as they do not possess a working visa. However, they also do not have the right to receive State's aid, and whatever they received while they were doing the asylum procedure, is automatically cut once their appeal is rejected. Many also receive an OQTF at this point, which is hardly executed, due to the high costs and planning necessary to do it.

<footnote n="12">¹² Title II: SANCTIONS, articles L820 to L824-12, of the CESEDA.</footnote>
Even though these people are undocumented and are not allowed to work, they still need money to afford living here. Due to that, they will find jobs without contract or will use other people's documents to get registered and not get caught, avoiding the risk of being sent back by an OQTF. This is considered illegal labour, a financial offense, high on the statistic as crimes committed by migrants.

It shows an incoherence in the State's decisions, as it cuts peoples' aids once they get their plea rejected, but also do not allow them to legally work, considering it a crime<fnref n="13" />. It also pushes people to illegality, as their last resource to afford living in France.

## 1.4 The right to stay

In light of the previous arguments, it is already proven the unfairness of denying nationality to those born in the country, even from parents who are not citizens. However, it is also unfair to block the access or the protection guaranteed by it for those that arrived as adults and already became part of the society, fully integrating to it, as their moral claim to citizenship rests on two principles: social membership and democratic legitimacy (Carens, 2013, p. 89).

Adults who migrate after having lived a significant portion of their lives elsewhere, may not have the same immediate claim to social belonging as those born in the country or those who arrived at a young age. However, this does not mean that they lack the desire to stay, especially after investing years in rebuilding their lives.

A growing number of political theorists argue that long-term residents should have a recognized right to stay, protecting them from the state's power to expel, since simply leaving in a community fosters membership in society. Over time, migrants establish network, form relationships, and integrate into the social fabric. They learn the language, navigate the local bureaucracy, and contribute to the community, whether through work, volunteering or sharing their knowledge. For many, returning to their country of origin is no longer a viable option (Carens, 2013, p. 50).

This social belonging asserts that individuals acquire a strong moral right to remain in their habitual residence after living there for a significant amount of time, as their prolonged presence integrates them into the community. It is the foundation of the

<footnote n="13">¹³ The hiring of an undocumented and unauthorised migrant is forbidden by the Labour code and can lead to a fine of 30.000 € for each foreigner as well as a five-year prison sentence (Pinho, 2024).</footnote>
principle of the right to stay, that is described as a “dense network of relationships and associations” that generate moral claims toward the political community, deepening over time (2013, p. 158). The core justification for this claim lies in the idea that long-term residents have, over time, become *de facto* members of the societies in which they live, through their attachments, contributions, and compatibility with the host community. What is at stake is not merely a legal claim, but “a person’s ability to maintain and develop a rich and highly particular set of human ties” (2013, p. 164).

This perspective challenges restrictive immigration policies that prioritise formal nationality by underscoring the ethical dilemma of expulsion, prioritizing lived experience. It is also a way of questioning the legitimacy of state-imposed exclusion, revealing the tension between legislation and jurisdiction and the social realities of membership.

Although not viewed as a new way of acquiring citizenship, such as the principle of *jus nexi*, the social membership argument does not imply that long term residence and domicile should replace citizenship as the basis for non-deportability, nor that the rights to secure residence of citizens and non-citizens, should be the same. The argument comes as a way of holding social accounts of non-deportability, stating that some people should have at least some protection against expulsion even without the status of citizen.

There is already international legislation that tries to regularise the protection of long-term residents from third countries, when they are living in Europe. The Article 12.4 of the International Convention on Civil and Political Rights (ICCPR) states that “no one shall be arbitrarily deprived of the right to enter his own country”. According to Timothy E. Lynch (2022), the right to enter one’s country necessarily entails the right not to be deported or expelled from one’s own state, providing that everyone has the right to stay in their country. It may seem at first that it only applies to citizens in the country of their citizenship, but customary rule of treaty has already interpreted<fnref n="14" /> and demonstrated that

<footnote n="14">¹⁴ There are already European decisions that uses this argument: Article 19 states that: “The right of a person to enter his or her own country recognizes the **special relationship of a person to that country**. The right has various facets. It implies the right to remain in one’s own country. It includes not only the right to return after having left one’s own country; it may also entitle a person to come to the country for the first time if he or she was born outside the country (...)$^{14}$. It also implies on article 20 that the wording of the previous article **does not distinguish between nationals and non-nationals**, which means that the people entitled to exercise the right can be identified only **through interpreting the meaning of the phrase “his own country”**. It is a broader concept that goes beyond the view of **“country of his nationality”**, showing that it is not limited to nationality in a formal sense, but embraces an individual who, “because of his or her special ties to or claims in relation to a given country, cannot be considered to be a mere alien” (CCPR</footnote>
this protection surpasses the citizens, protecting also non-citizens, even the undocumented ones, if they have strong attachments to the state, enough to call it their own. While this article prohibits the arbitrary expulsions, it still allows it under certain circumstances, such as in nonarbitrary cases. However, determining what constitutes as a non-arbitrary expulsion is difficult and usually leaves space for discretionary decisions from government or administrative agents, that may view the expulsion of naturalised people or fully integrated non-citizens as necessary and, therefore, nonarbitrary.

Distancing measures have drastic consequences on people's lives and should only be used in rare cases, showing that the right to remain in one's country is a right that should prove particularly valuable to many people in the world, who have lived in another country other than their birth country.

Furthermore, the jurisprudence of the Human Rights Committee shows that a state is someone's own country if their ties to it are extensive and sufficiently deep, which means that a state can be a noncitizen's own country, regardless of their legal status (Lynch, 2022, p. 319), when criteria that shows deep integration to the community is fulfilled, such as the length of one's residence, family connections, friends and other social ties, professional relationships and credentials earned, ability to communicate in the local language of the country, acculturation to it, intention to keep living there.

Societal argument emphasises the contributions long-term resident non-citizens usually make to the societies in which they live, relying on the idea that national communities are schemes of cooperation which give rise to associate obligations among the habitants.

<footnote>General Comment No. 27: Article 12 (Freedom of Movement) – Office of the High Commissioner for Human Rights – author's highlights).</footnote>

<footnote>Another example is the judgment of Mr. Stuarts case. Charles Edward Stuart was born in Scotland in 1960, and moved to Canada by the age of seven, living there since then, with his sick mother and his disabled brother (2.1). He has two children in Canada, that live there with their mother, also Canadian (2.1). Most of his life he considered himself Canadian citizen and was only when he has contacted by immigration officials because of a criminal conviction that he realizes that he had only the status of a permanent resident, not a citizen (2.2). In 1990, at the age of 23, he was ordered an expulsion measure on account of his criminal convictions, to which he appealed, claiming that it is a violation of article 23 of the International Covenant on Civil and Political Rights (3.1), that ensures that due weight will be given in administrative proceedings to family interests. He adds that "According to the author, the term "home" should be interpreted broadly, encompassing the (entire) community of which an individual is a part. In this sense, his "home" is said to be Canada. It is further submitted that the author's privacy must include the fact of being able to live within this community without arbitrary or unlawful interference" (3.3).</footnote>

<footnote>Although the Comitte responsible for judging the case decided that Mr. Stewart had at no time acquired "own country" status in Canada and that his expulsion did not violate the Covenant, several pursuants sent their opinion against the Committee's decision (Stewart v. Canada, U.N. Doc. CCPR/C/58/D/538/1993, at 20 - Nov. 1, 1996 - author's highlights).</footnote>
These migrants contribute with their labour, paying taxes and contributing to the social welfare, even if usually they cannot claim it. Many non-citizens, especially those who are undocumented, do unpleasant, low-paid work that most citizens are unwilling to do, sometimes without a contract and, therefore, without the social protection and benefits that is part of worker's rights (Rubio-Marín, 2000, p. 87).

Access to membership status within a state plays a decisive role in shaping life opportunities, stability and human rights protection. As Shachar (2007) highlights, securing this status is not merely a formality, but an essential factor that determines who can fully benefit from a given society, when others remain on the sidelines, proving that it is a mechanism of inclusion and exclusion, that can be used to reinforce inequalities and impose barriers for benefiting of legal security, particularly regarding the long-term residents and those facing expulsion. For her (Sachar, 2020), today's borders have become simultaneously "more open and more closed ... they expand or shrink, selectively and strategically, depending on the target populations they encounter".

Citizenship often functions as “club”, with selective membership, privileging those who inherit it by birth, or can pay for it, while excluding others that have spent the same amount of time in the country and maybe were even born there but are still considered foreigners (Shachar, 2020). To question who belongs in a society, is to analyse the ramifications for democratic theory and for global justice debates, viewing who is allowed to enter a country and establish their lives there, being able to actually belong to a community and, consequently, be protected from expulsion, and those who cannot even enter the state and, in case they do, will live under the threat of expulsion.

A good example of how citizenship can be used to exclude people is the “golden visa” program, such as the American EB-5 visa and the British Tier 1 (investor) visa, that show a marketization of citizenship. Those are ways of accelerating the process of receiving a citizenship, by investing a certain amount of money in the country in question. In the USA, it is necessary to invest at least $500,000 (five hundred thousand dollars), if the investment is made in specifically designated areas, otherwise the amount is $1 million, and in the United Kingdom, the amount is of at least £2 million.

It is as a tailor-made, exclusive and expedited pathways for the world's super-rich to acquire citizenship, not even needing to "set foot in their new home country" (Shachar, 2020), at the same time that these countries are putting tremendous resources into border
control and into closing the door for the “mass influx” of immigrants and refugees arriving, while deporting others that are already living there, but do not dispose of the sum necessary to “buy” the citizenship.

It defines who belongs and, consequently, who does not, by the amount of money that they can put into investments in the host country, disregarding all the other types of investments that long-term migrants also make, by working, paying taxes, volunteering and integrating to the community, bringing their multicultural aspects, and so on:

> if you put a price tag on citizenship, the concern is not just that you're sending a clear message about who is wanted and who is seen as a valuable future citizen, but you're really recasting something deeper, something about political membership in the political community, which for many still remains the ultimate non-market good (Shachar, 2020).

Countries are commodifying the political and civic bond that they share with their citizens while simultaneously upholding republican values and democratic duties only to those that are viewed as “not citizens enough”, or lacking the financial means to buy their way in. While most immigrants must pass tests on civic and republican values, culture, and language to obtain a visa or naturalisation, those who can invest substantial sums are exempt from such requirements. Even when granted nationality, their attachment to the country is neither questioned nor deemed necessary, exposing the double standard when accessing citizenship.

This commodification of citizenship shows that, sometimes, nationality is merely viewed as a transactional status, where those that are able to afford it, can achieve the status quicker and effortlessly with all its consequences, such as political and social rights, without having to even visit the country in question, whereas others are denied it and excluded from political representation, unless they are able to push through the administrative arbitrariness and prove their fully integration to the society.

Moreover, social membership also claims right to political representation for those that are integrated in the community, as it is also fair that their needs and demands be addressed by those in charge of making the laws and ruling the country (Lansberen and Shaw, 2010). If political membership is tied to one's presence and participation in society, then those who have long been under the country's laws should also be allowed to shape them.

This integration can be viewed through two aspects: “long term subjection to the collectively binding decisions adopted in a polity” and “dependency on a given
framework associated with permanent residence” (Rubio-Marín, 2000). Social belonging requires the combination of habitual residence and the submission to decisions that govern that same community, and that is why it is necessary that long-term residents also have political representation, as they are obliged to abide by the framework of the place where they live.

Rubio-Marín (Lansberen and Shaw, 2010) advocates for the automatic conference of citizenship status to those that, after a defined period of residence in a certain country, are presumed as social members. This means that long-term residents would automatically acquire the nationals' rights after crossing the threshold of those that are considered only as residents and those that are viewed as social members, due to fulfilling the criteria, such as the length of stay, the building of a family, professional and social integration, contribution to the economy, and so on. It could also be a criterion based on domicile, as it indicates the various legal connections, including bonds of association that an individual has with a political community and its legal system (Kostakopoulou, 2008). It is the idea of permanent home, of making the host country the hub of their interests, which shows an intention of permanent settlement.

Political participation is a key form of belonging and lies at the core of democratic legitimacy. Yet many democratic states systematically exclude long-term residents from the political system that governs them, creating a representation gap that highlights deep disparities in migrant political participation (Soare and Gherghina, 2024, p. 2). While laws apply to all residents, only some have the right to influence them by voting. This exclusion undermines democratic principles and reinforces structural inequalities by silencing those most affected by migration policies. Denying non-citizens access to the political process subjects them to decisions they cannot challenge. Although Carens (2013, p. 65) argues that all settled adults in a democratic society should automatically acquire citizenship or at least the right to obtain it to be able to participate in politics, restricting the right to vote to citizens alone remains a violation of the democratic ideal of political inclusion (Altman, 2022).

It is important that more inclusive democratic rights be asserted by the membership model<fnref n="15" />, a claim for enfranchisement of non-nationals resident, as they are also affected

<footnote n="15">¹⁵ This strong claim for political representation of non-nationals is at the core of the “affected interests principle” (Goodin, 2017), also known as principle of democratic legitimacy (Carens, 2013, p. 79) which claims that regardless of a person being bound or not by a political decision, if it affects them in any way,</footnote>
by political decisions and, therefore, they are entitled to representation as a member of
the political community, even without the formal citizenship status (Goodin, 2007).
Moreover, it is also possible to view this proposition through a legal lens, meaning that
the membership model should encompass those who are subject to the laws of a country,
moving away from a nonterritorial perception theory and resulting in membership defined
by the borders of the jurisdiction.

However, this could be overinclusive as everyone in the world is potentially affected in
some way by governmental decisions, even outside the country, in a globalised world as
the current one. It would give rise to a claim for political representation from virtually
everybody that has a certain relationship to it (Goodin, 2007), which means that, currently,
it is not a feasible model on which to build national constitutional principles, even though
it is still a proposition that holds normative appeal for advocating greater democratic
inclusion detached from nationality (Lansberen and Shaw, 2010).

According to Benhabib (2011, p. 73), the right to membership “should be considered a human right, morally, and it should also become a legal right, by being incorporated into state’s constitutions through citizenship and naturalization provisions.” This means that more than granting people protection to stay in their chosen country on the grounds of morality, it should be granted on legal basis, as it makes for a strong claim, supported by legislation or jurisprudence.

Human right to membership involves two categories: human rights and civil and political
rights (2011, p. 140). Access to all civil rights, such as right to association, property, and
contract, and eventually to political rights, ought to be considered a human right, which
means that once admission of a migrant occurs, the path to membership ought not to be
blocked, as the right to membership also includes the right to knowledge of how can
conditions for achieving nationality be fulfilled (Benhabib, 2011, p. 68). The criteria
should be clearly defined, transparently communicated, and applied consistently, without
being subject to arbitrary bureaucratic discretion:

> once people have been settled for an extended period, they are morally entitled to the
> same civil, economic, and social rights as citizens, and they should be subject to most of
> the same legal duties (Carens, 2013, p. 89).

<footnote>they should be able to challenge it through political representation. Political engagement is also a way of advocating for better conditions for these communities. There is also a more hidden benefit of this principle, which is the fact that politicians tend to pay more attention to social groups that can directly participate in politics, as they can vote for them, and, therefore, contribute to their winning.</footnote>
This means that the amount of time that somebody spends in their host country matters more when it comes to gaining the rights and duties of citizens, than other facts, such as being documented, which gives them the opportunity of accessing those rights due to the length of their stay in the country, and not the fact that they possess, or not, documents that allow them to be in there.

The longer a person stays in a society, the stronger their attachments become, reinforcing their moral claims to belonging. Over time, these claims can justify virtually the same legal status as citizens, regardless of whether formal citizenship is granted (Carens, 2013, p. 89). These attachments can be a simple group of friends that the migrant developed throughout the years, as it can be marriage to a local citizen, with children who are also citizens. Continued residence is fundamental to human existence, as humans are both social and spatial beings, meaning that place is not only the backdrop for social relationships but an active force in shaping one's identity, fostering connections to the natural and built environment, as well as to the economic, cultural, and social activities that structure everyday life.

Citizenship and political membership have served as “rituals through which the nation is echoed spatially” since the nineteenth century, particularly following decolonization and the collapse of communist regimes (Benhabib, 2011, p. 17). These concepts reveal how nationalist ideologies attempt to impose order on a complex and dynamic reality, shaping it according to simplified governing principles based on national belonging. This nationalism is formed by a series of imaginary as well as real demarcations between two groups “us and them”, practices of inclusion and exclusion. These practices are always subject to questioning from the standpoint of the moral conversation, as there is always a dilemma: a shared feature of all norms of membership, including but not limited to norms of citizenship, is that those that are affected by the consequences of these norms and, in the first place, by criteria of exclusion, cannot be party to their articulation (2011, p. 15).

Territorial sovereignty and democratic voice have never matched completely. The new politics of membership are about negotiating this complex relationship between the rights of full membership, democratic voice, and territorial residence. Policies regarding access to citizenship ought not to be viewed as unilateral acts of self-determination, but rather as decisions with multilateral consequences that influence other individuals in the world community (2011, p. 20/21).
While the ethical and moral implications of citizenship and social membership are
essential to understanding the theoretical framework of these issues, it is equally
important to explore how they are implemented in specific legal and social settings. In
France, the process of acquiring citizenship and navigating immigration laws involves
complex, bureaucratic procedures that impact individuals' rights and their path to
integration. To better understand how these principles operate in practice, the following
section will explore the French government's approach to immigration and citizenship. It
will also examine relevant jurisprudence and the legal strategies employed by
immigration lawyers in Lyon, shedding light on how these normative principes are
interpreted and applied in the pragmatic legal system.
## 2. The pragmatic role of the right to stay in France

### 2.1 France and immigration

France was once a country of emigration, but now it is mainly a country of immigration, with around 8,3 million immigrants and foreigners<fnref n="16" /> living in its territory in 2023. Almost most of them are born in Africa (47,7%), with Algerians leading it, while 32,3% are born in Europe, with Portuguese being the most frequent nationality (INSEE, 2023). It is important, then, to view how French legislation take into consideration these populations.

Nevertheless, naturalised French, those who have dual citizenship and long-term residents, regardless of their legal status, can see their nationality be revoked and be sent back to their home country, or even to a third assigned country, due to the commitment of crimes or posing a threat to the public order, such as ruled by the article L521-1 of the CESEDA.

Additionally, it is possible to lose the nationality for other reasons, such as in cases where there is a lie or a fraud confirmed during the registration process; the concealment of a spouse, children, a polygamous union, or the submission of falsified document, the decision being made within a two-year span after the discovery of the fraud (*Service Publique*).

The revocation of French nationality operates retroactively, which means that the individual concerned is then considered as if they had never acquired citizenship in the first place. This measure is particularly striking given the extensive time, effort, and integration requirement necessary to obtain French nationality, only for it to be nullified based on a single act. Such an approach is an example of the broader conflation of criminal law and immigration law, the “crimmigration” phenomenon as mentioned before. This blurring of legal frameworks raises the question about the use of nationality as a punitive tool, rather than a stable legal status grounded in long-term social and civic ties.

<footnote n="16">¹⁶ France distinguishes the immigrants (*immigrée*) from foreigners (*étrangers*), the first referring to those that were born outside France and now live there and the second to those that live there and do not have the French citizen. It is not mandatory for a migrant to be a foreigner, as minors who are born in France from foreigners will also be considered as foreigners, but not as immigrants. Being an immigrant is a permanent condition, as it depends on the country where the person was born, which will never change throughout their lives. However, one can start as a foreigner and later acquire French citizenship, losing this title.</footnote>
Unlike regimes in the Medieval times, modern democratic states do not turn criminals into outlaws (2013, p. 129), completely depriving them of the law's protection, which means that even undocumented migrants or those that actually committed a crime should not be repelled from the jurisdiction, even more so as most states do not see the first group as being criminals, only as carriers of irregular status. Considering this, treating irregular migration, which is a civil and administrative offense, as a criminal offence, punished by penal enforcement measures, such as detention, deportation and even criminal prosecution, goes against the legal framework of most states<fnref n="17" /> and leads to severe consequences for the lives of these immigrants, as it directly harms their right to liberty and security, meaning that nobody should be subjected to arbitrary arrest or detention (UDHR, Art. 9).

Throughout the discussions leading to the approval of the final draft that would result in the new Immigration Law in France, it was first decided by the Parliament to reinstate the infraction of irregular stay (*délit de séjour irrégulier*) that had been already cancelled in 2012 under the presidency of François Hollande (Le Monde, 2024). Rescued by the far-right through the work of senator Chritopher Szczurek (*Rassemblement National* - RN), the idea intended to reinstate this offense with a fine of 3 750 € and one year imprisonment, solidifying the view that irregular immigration is indeed a crime.

This infraction was repealed in 2012 following a 2008 European directive recommending that member prioritize removal measures over prison sentences, as it would decrease the chances of the undocumented migrant continue living in the territory after the sentence is carried out. However, this decision was not primarily driven by humanitarian concerns but rather by pragmatic considerations, such as freeing space in detention centres, reducing the public costs associated with prolonger detention, and expediting the expulsion of unwanted migrants.

Although the Minister of the Interior, Gérald Darmanin was favourable for the implementation of this new offense, he also reminded that already existed other offenses that punish the irregular stay. So, even though the reinstatement of the crime by the *Loi Darmanin* was cancelled by the Constitutional Council, long-term residents, especially

<footnote n="17">¹⁷ The office of the high commissioner of the United Nations Human Rights' committee states that the "mere fact of crossing a border or staying in a country irregularly is not a crime per se against persons, property or national security and should not be treated as much" (A/HRC/20/24, para. 13; WGAD, Deliberation No. 5).</footnote>
undocumented ones, are still constantly under the threat of being imprisoned and expelled from the country, being considered as having committed a crime for entering the country irregularly, or by continue living there after the visa expired or was not renewed.

Furthermore, noncitizens usually do not enjoy the same rights as citizens, such as the access to the labour market and labour rights, protection provided by safety legislation, and so on, usually starting in disadvantage, as they need specific visas to be allowed to work legally. To acquire these visas, there is a long process of filling formularies, gathering documents, proving that the person already has an employment promise, and so on, which is also pricey and time consuming, whereas citizens are free to work without visas and without the lengthy bureaucracy.

It is common to see cases where the visas are not renewed by the administration, which leaves the migrant in a dire situation, usually losing the job that they already had and having to work illegally in underpaid and overworked jobs, also raisin the risk of being expelled, as it leaves the individual in an irregular condition that can lead to the order of an OQTF, in France.

Before January 2024, when the new immigration law was adopted, workers exercising a liberal profession were not obligated to have a visa (Titre de séjour). Right now, it is mandatory for Third-country nationals (TCN) to possess a visa to work under the status of individual entrepreneur (Entreprendre Service Public).

It now states a new category of workers that could regularise themselves in an exceptional and temporary way, the so-called workers in “tension” jobs (travailleurs dans des métiers “en tension”), the name given to those that work in areas that have a high demand of workers, but not enough people willing to do it, such as food industry, hospitality and tourism, construction, cleaning, due to the low salaries and long and strenuous work hours. These workers will see their situation resolved in a quicker and easier manner, as they are viewed by the government as useful for the economy.

It is a matter of economic benefit for the state, as there is a striking difference of treatment between the “chosen migration” (immigrant workers, high qualified ones, or not qualified but willing to work in jobs that not many citizens are willing to), which will be favoured in terms of regularisation, and the imposed migration (usually refugees and asylum seekers), which have a much harder time to access their documentations and, at the end
of the process, usually are denied the status of international protection and receive an
OQTF.

Moreover, these workers, even if they are not regularised, can contribute to the public coffers by paying taxes, which is usually highly recommended, as by paying the taxes, or declaring exemption of it by proving to the state that the salary is not enough to be imposable, migrants receive an *avis d'imposition*, which is required as proof of regularisation with the federal revenue service, important for other bureaucratic processes.

It is even viewed by the state as a solid proof of integration, as it shows that the person found a job and kept working and contributing to the economy, despite not having the proper documentation. Due to that, a lot of migrants see themselves in irregular situations as their visas are not renewed, which pushes them to the “black market” of jobs, as they need the money to pay rent, buy food and basic necessities, pay for medicaments, and so on, but also for having the possibility of regularising their situation further on, as the French government demands proof of having worked during the years necessary to acquire a long-term visa for undocumented migrants, such as the *autorisation exceptionnelle au séjour "vie privée et familiale"* (VPF) or the *autorisation exceptionnelle au séjour "travail"*.

This is also true for asylum seekers whose cases have been rejected, as after they do an appeal and it is also rejected, they are not allowed to work anymore, but they will still need to prove their integration in case they want to try to regularise their situation later, through means other than the refuge.

Furthermore, if there is a social insurance program financed by compulsory deductions from worker's pay, if they are required to contribute to it with their salary, they should have access to the benefits as their right, as they are also helping pay for it. The principle of reciprocity on which such programs are based requires that those who pay should have the right to access them (Carens, 2013, p. 99), and the same goes to access to healthcare and education, provided to the general population. He affirms that "one rarely hears arguments for treating legal permanent residents differently from citizens with regard to these programs".

In the last years, however, the discourses regarding immigration have dramatically changed towards a more exclusive and nationalist agenda in several countries known for
being open to migrants and refugees until now, such as the U.S.A. and Canada, but also
others not so open, such as the U.K., Italy, Greece, France, Poland, Portugal, Germany,
and so on.

In France, each law change and circular approved by the government brought a roughening of immigration laws throughout the years, making it harder for third-country nationals to regularise themselves, while also making it easier for the administration to issue distancing measures and effectively expel these people.

In 2018 and 2024 (Imbach, Vaudano and Pierre, 2024), the country tightened the integration requirements for foreigners, reinforcing the CIR, introducing an engagement contract for adherence to republican values, and raising the minimum language proficiency levels, from level A2 to B1 for a permanent visa and from B1 to B2 for naturalization.

Moreover, the decision to escort irregular migrants to the border, place them in administrative detention for expulsion, often returning them to their country of birth without assessing potential risks, or transfer them to a third country with which they have no ties has generally remained at the discretion of prefects, the only exception being from the year 1981 to 1986, when judicial authorization was required (Imbach, Vaudano and Pierre, 2024). The fact that a measure that should be used as last resource due to the impact that it has on the migrant's life and his family's, is decided by an administrative instance shows the state's discretionary and punitive intent, bypassing the due process of law to rapidly expel these people.

This proves that there have been major modifications when it comes to the repressive arsenal at the disposal of the administration against the undocumented migrants. The last big one, in 2019, made it mandatory that the emergency accommodations where a lot of these migrants are placed, transmit their list of asylum seekers and refugees lodged with them, to the authorities. It would make it easier for the government to follow the process of the “unwanted” migrants (the imposed immigration) and quickly send them to the administrative retention centres, in case their plea for asylum is rejected or they lose their refugee status. Although these changes are still being discussed and adopted, always leaning towards a stricter migration law, as we can see in the new discourse of the French Minister of the Interior, Bruno Retailleau, in which he talked about the possibility of
augmenting the time that an undocumented migrant could be kept imprisoned in an
administrative detention to up to 18 months (AFP, 2025).

This new rule would apply to individuals convicted of serious crimes or offenses who are subject to a removal order, as well as those that who have not been convicted but are deemed as a particularly serious threat to public order. The use of broad and vague terms such as “particular seriousness” and “public order” leaves room for interpretation, allowing the administration to apply thee criteria flexibly, potentially encompassing activities or individuals that diverge from current political priorities.

This rise in stricter rules and in border closures poses a challenge to multicultural societies and ethnical minorities, who are increasingly framed as “threats” to public and republican values. It dismisses the social integration that these people went through to properly live in the country, rebuilding their lives and contributing to the society.

Beyond border enforcement, it is crucial to examine how the principle impacts the daily lives of long-term residents in France, as it was not merely designed as a theoretical notion but is actively applied to residents who face the risk, or even the reality, of expulsion.

In France, the distancing measures are issued by the prefect or, in some very specific cases, by the Minister of Justice<fnref n="18" />, which means that the OQTF and the expulsions are administrative measures, not judicial. Because of that, to appeal them, the immigrant must place a plea at the *Tribunal Administratif* of their jurisdiction (*Ministère de la Justice*), or appeal it in the *Cour Administrative d'Appel*, where the material elements of the dispute will be re-examined to verify that there are no errors of law in the first judgement (*Ministère de la Justice*).

It is in these courts that the distancing measures are judged and overturned or upheld, depending on the arguments presented and on the decision of the judge assigned to the specific case. This is where the arguments that are part of the right to stay, such as integration to the host country, social membership, time spent in the territory, contribution to the community, building of a family, are used in the practical realm and directly affect

<footnote n="18">¹⁸ The Minister of Justice will issue exclusively expulsion order in very specific cases, such as when a protected migrant’s (French citizen’s partner or parents, for example) expulsion constitutes a necessity for ensuring the State’s security or the public security; the expulsion of a protected migrant due to the seriousness of their acts, such as the commitment of violations of the republican’s principles, terrorist activities or attack on the fundamental interest of the State; or, finally, in case of expulsion due to serious threat to the public order and absolute urgence. In these cases, the Minister will issue an *arrêté ministériel d’expulsion* (AME).</footnote>
the lives of migrants and refugees. That is the reason why this research is now going to
look carefully into the decisions taken by the *Tribunal Administratif de Lyon*, to seek
whether the principle is adopted, and if so, in what way and to what extent, in the
municipality of Lyon.

## 2.2 *The city of Lyon.*

The city of Lyon, the second largest city in France by urban area, located at the confluence of the rivers Rhône and Saône, to the northwest of the French Alps, southeast of Paris, north of Marseille, has a population of 522,250 (2021) in the central area and more than 2 million people in the metropolitan area, being the second most populated metropolis in the country.

Lyon is the prefecture of the Auvergne-Rhône-Alpes region and seat of the Departmental Council of Rhône, and it is recognized for its ancient history, its cuisine and gastronomy, as well as architectural landmarks.

It has a total population of 180,445 immigrants on its territory, amounting to over 13% of its total population in 2012 (around 1.3 million inhabitants). The city can be considered one of the main immigrant reception centres in France, with a rate that is slightly over the national average, that is 11.4%, with 23% of the immigrant population in the city is located in four districts, that is: the 3rd, 7th, 8th and 9th, usually along the left bank of the Rhône, distributed in 10 neighbourhoods located South and East of Lyon, including Vaulx-en-Velin, Saint-Fons and Vénissieux and 40% of it being of Maghrebin origin (Mediterranean City-to- Migration, 2018-2022).

Its migration history goes back in time, starting at the end of the nineteenth century, when Lyon received the first waves of Italians, and labourer from Poland, Greece, Spain, Portugal and Armenia. After that, around mid-20th century, after the Second World War, Lyon went through an increased need of workforce, to substitute the deficit left by the deaths left behind by the conflicts and to rebuild a devastated city. Joined unto the continue immigration composed of European citizens, a new flow of immigrants started to arrive. People from Algeria, Morocco and Tunisia, and other countries from the Mediterranean region took interest in migrating to France.

It is this flux that will characterise the migratory movement in the 1970s. People from Maghreb, Eastern Europe and Asia, as well as flows from Sub-Saharan Africa. Finally,
after 1980, the Metropolis receive people from Africa and Europe and, more recently,
from the Middle East.

Another important shift is the increase in the presence of immigrants that are woman, a
growing tendence after the year 2000, driven by family-based immigration, right now
amounting to 51.7%.

Immigrants residing in the city usually work as labourers (26%), and to a lesser extent, as employees (31%). Compared to non-immigrants, they are overrepresented at the former (compared to 14% of non-immigrants) than the latter (compared to 27%). Immigrants are also less represented in intermediary professions and managerial positions.

According to INSEE, the unemployment rate is much higher among immigrants than non-
immigrants, with a rate of 13% and 7% respectively, but the portion of this population
that is active is lower, with 57% of immigrants, compared to 60% of non-immigrants.

Lyon is evidently an immigration hub, attracting individuals from different parts of the
world who seek refuge, better living conditions, and opportunities to work and build
family. However, they are also exposed to distancing measures, such as OQTFs and
expulsion orders, living in a state of vulnerability. That highlights the necessity of
analysing how the city applies these measures and what are the arguments used to either
overturn or upheld them.

2.3 *The administrative jurisdiction.*

The public administrations take measures that affect everyday lives of citizens and non-citizens, in areas regarding the public health system, social benefits, urbanism, education, security, including immigration. If one of these measures is illegal or disrespect peoples' fundamental rights, it is possible to contest it through the administrative justice, which is responsible for verifying that the actions taken by the administration are according to the law, protecting people from abuse and manifest errors.

There are two possibilities for accessing the administrative justice. The first one is
addressing directly the *Conseil d'État*, in cases where the measure contested was taken
by the Government or another national authority. The second way of accessing it, and the
most common one, is through the *Tribunal Administratif*. If someone does not accept a
measure taken by local or regional authorities, such as a prefect, it is possible to address
the closest Tribunal, one of the 42 that exist in France. The jurisdiction of the Tribunal in
Lyon is responsible for judging appeals regarding situations that happened in the departments of Ain, Ardèche, Loire and Rhône, where Lyon is located.

The *Tribunal Administratif* judges the litigation between the administration, such as the State, the collectively, public establishments or private organisations in charge of public services, and a natural or legal person. The people interested can demand total or partial cancellation of an administrative or fiscal measure, such as a building permit refusal order. They can also demand the responsibility of the public administration in cases where there was a mistake committed when receiving a public service. And finally, it is possible to contest the regularity of elections, either municipal, regional or even at the European level.

If the individual is still dissatisfied with the judgement of the administrative judges, it is possible to appeal to the second instance, which is the *Cour Administrative d'Appel*, for which there are 9 in total in the territory. The court is a second-degree jurisdiction, and it has as main job judging the material elements of the litigation and verifying that there are no errors of law in the judgement made by the tribunal, but also a secondary role as a consultative function, giving advice to prefects (*Ministère de la Justice*).

As mentioned before, decisions taken by the prefect are contested in the administrative jurisdiction. The prefects are the ones that order distancing measures, such as the OQTF and the expulsion to long-term residents living in France, meaning that the *Tribunal Administratif* and the *Cour Administrative d'Appel* are the ones responsible for judging the appeals against these measures. That is why it was decided to analyse the jurisprudence from the *Tribunal Administratif* in Lyon and the lawyers that appeal cases that are being processed by it, as it is where the removal orders are challenged.

## 2.4 *The findings*

After gathering all the data necessary from the administrative jurisprudence and the interviews with the lawyers, it was possible to visualize patterns of argumentation commonly used by the lawyers in their appeals, but also by the judges in their decisions, which is what is going to be discussed next.

The analysis of recent jurisprudence reveals that the most common distancing measure adopted by the prefecture in Rhône-Alpes region is the OQTF, usually combines with an interdiction of entering the territory (*interdiction de retour sur le territoire français*
IRTF), which also implies a banishment from all Schengen Area, as the expelled migrant will be registered in the *Système d'Information Schengen* (SIS)<fnref n="19" />.

From all the jurisprudences analysed from the Tribunal, with only 15 being successful in seeing the distancing measure ordered by the Prefecture, cancelled, it was possible to visualise that most appeals made are rejected and the expulsion order is maintained, showing a low disposition from the judges to change the decisions taken by the prefecture. However, it is still important for migrants to appeal these orders, especially when there is solid proof of integration or of a special condition that turns the removal measure unjust, as it is the only way of defending one's rights when they are being harmed by the administration.

By collecting these data, it was possible to verify the most common arguments used by the lawyers and to highlight the ones most accepted by the judges and how they are used, studying what is accepted as a viable proof of integration and, therefore, strong enough to cancel a distancing measure, and what is viewed as not influential enough, all in light of the principle of the right to stay, as it is going to be explained. All quotations are originally in French, whether from jurisprudences or interviews, and were translated by the author to homogenize the language of the dissertation. The original French versions are available in the corresponding attachments at the end of this work. Highlights within the quotations were also added by the author to draw attention to specific elements, further discussed in the study.

### 2.4.1 *The legality of the process*

First, there are two types of arguments: the purely formal ones, regarding the legality of the process and placed before in an appeal, and the subjective ones, regarding the merit of it, the latter being more opened to interpretation from both parts of the litigation.

The first type of arguments, also known as procedural defects or grounds of internal and external legality, are claims that are made against the formality of the administrative decision of removal and not against the discretionary power of it. It will not get into the

<footnote n="19">¹⁹ According to the French Code of the interior security (*Code de la sécurité intérieure*): « Le système d'information Schengen (SIS) a pour objet d'assurer un niveau élevé de sécurité dans l'espace de liberté, de sécurité et de justice de l'Union européenne, notamment la préservation de la sécurité et de l'ordre publics sur les territoires des États membres de l'espace Schengen. » (art. R231-1, Legifrance).</footnote>
merit of the question, the personal reasons why the person should not be removed but
rather stay at the level of the formalities surrounding it.

When asked about the arguments used in the appeal, lawyer 5 mentioned both types, the
procedural ones and the merit ones:

“Author: Okay. And what arguments do you use when appealing these types of measures?
Only when there's a threat to public order, or not necessarily?
Not necessarily. Well, many. Many arguments. I mean, the whole procedure, all the
procedural arguments, obviously. And then, on the merits of the cases, we argue that either
the threat to public order is not sufficiently established, or that if the person is in an
irregular situation, it's because they were unable to access prefecture services due to
dematerialization, for example” (I).

The appeals gather a diversity of arguments, from the procedural ones, that are practically
mandatory as they cannot be argued for the first time in the second instance, and the
subjective ones, related to the core of the process, the merit:

“Author: and when you lodge an appeal against these decisions, these measures, what
are the most common arguments you use? Well, French law is structured strangely,
because... I think my colleagues may have mentioned it to you. **We are required to raise
what are called grounds of internal and external legality.** This means that when
bringing a case before an administrative judge, **we have to challenge both the form of
the act, such as the reasoning, the signatory, etc.,** and the substance. Because if we
don't do it within the litigation timeframe, we won't be able to raise it later. So we are
obliged to challenge the signatory's competence, to argue that the person who signed the
OQTF did not have the authority to do so. Even though we know that they do have the
authority, because we know the officials who sign, we still have to raise it for procedural
reasons. There you go. That's just an anecdote. But when you read a lawyer's petition,
they will always argue that the signatory did not have the authority and that the decision
was not sufficiently reasoned, even if there isn't necessarily any evidence to support these
arguments, simply because we are required to do so” (Lawyer 9) (II).

It is a common practice, then, to argue as many procedural arguments as it is appropriate
to the case in question, bringing several claims to the plea to prove the right of the
immigrant, as it cannot be done later.

According to the article L211-2<sup>20</sup>, from the Code of Relations Between the Public and the
Administration, every unfavourable or derogatory individual decision must be motivated
by the administration, explaining why it denied a right to someone. It is the right of the
affected person to claim an explanation by the administration and the latter is obliged to
give it, if it does not want to be sanctioned or to see the act in question cancelled. The
absence of it can lead to an appeal for an excess of power, as the refusal to give

<footnote n="20"><sup>20</sup> The article states the following: « les personnes physiques ou morales ont le droit d'être informées sans délai des motifs des décisions administratives individuelles défavorables qui les concernent (...) » (article L211-2, Code des relations entre le public et l'administration).</footnote>
explanations make the act illegal due to a vice in the form, called a vice of insufficient reasoning.

Lawyers will usually claim this in their appeals against a distancing measure, as those are usually taken without a diligent explanation, such as in the case number 2404184, decided July 30th 2024, where the judge ruled that the order given by the prefecture was vitiated by insufficient reasoning and not preceded by a genuine assessment of his individual situation, not allowing him to fully understand the factual reasons that led the Prefect of the Police to issue the decision. It was decided, then, that he is entitled to seeing the removal measure cancelled (*Tribunal Administratif de Lyon*, n° 2404184, July 30th 2024).

This point is used to contest in the first instance the administrative decision of expelling someone without properly and diligently explaining why the affected person should be given an OQTF or an expulsion order. Prefects should always dutifully explain on what grounds they are ordering the removal of the person and why they are denying their right to stay. By refusing to do so, the prefecture violates the rule of law<fnref n="21" /> and the right to a proper defence, as nobody should be judged for facts that are not clearly stated as it is difficult, sometimes impossible, to do a proper defence against arguments that are well explained. It is a matter of the rule of law, in the figure of legal certainty:

> The principle of legal certainty recognizes the right of individuals to make long-term plans for their lives by requiring that state action be reasonably predictable and nonarbitrary. One critical manifestation of the legal certainty principle is the provision of statutes of limitation in civil and criminal law, which places a time limit beyond which most crimes and misdemeanors can no longer be prosecuted, and individuals can move on with their lives (Ellerman, 2014).

France is obliged by the rule of law to act in a predictable and nonarbitrary way, respecting the universal principle of accountability, even though the arguments used by the judges may be vague and open to interpretation, such as “enough motivation”, “integration”, and so on. This means that when the prefect deliberately does not justify the reasons why he or she ordered a distancing measure, they are also infringing the right to a legal certainty and a proper defence, as previewed by the internal law (article L211-2, Code of Relations

<footnote n="21">²¹ The rule of law is a durable system of institutions, laws, community commitment and norms, that delivers the universal principles of accountability, just law, open government, and accessible and impartial justice (World Justice Project, accessible in: https://worldjusticeproject.org/about-us/overview/what-rule-law). In French law it can be translated as *règle de droit, Etat de droit, or even respect de la loi, principe de légalité* (Jurgens, 2007).</footnote>
Between the Public and the Administration) and external European law (article 2, Consolidated version of the Treaty on European Union)<fnref n="22" />.

It is also common to use the principle of the rule of law and the accountability of the State when defending someone's right to stay in France against an administrative decision, in the argument of the manifest error of appreciation regarding the person's personal situation. This manifest error means that the order was tainted by a gross mistake in evaluating the facts that motivated it, specifically the migrant's situation:

> A manifest error of appreciation is to say that this person, certainly, she has no private or family life in France, but nevertheless, she is very ill, she was a basketball champion. She was someone who came as a student (Lawyer 1) (III).

Or as displayed by the jurisprudence:

> (...) the decision refusing him a period for voluntary departure is **tainted by a manifest error of assessment in the application** of Articles L. 612-2 and L. 612-3 of the Code on the Entry and Residence of Foreigners and the Right of Asylum, insofar as his behavior does not represent a threat to public order, he provides guarantees of representation as he has stable housing, and he has not evaded any previous removal measure (...) (Tribunal Administratif de Lyon, n° 2500624, January 21st 2025) (IV).

In this case specifically the lawyer claims that the judge's decision goes against specific arguments from the CESEDA, as his client is not a menace, has guarantees of representation, stable housing and has not received a distancing measure before, all things diligently proved in the appeal, which should guarantee him a period for voluntary departure. It means that there has been a manifest error of assessment and, therefore, there should be a reevaluation by the administration.

Overtime, migrants contribute to society, creating a web of mutual cooperation between them and the host community, including the State (Rubio-Marín, 2000). Thus, even if they are irregular in the territory, their contributions establish a social bond that should be respected, particularly when compounded by vulnerabilities, such as illness and parenthood.

<footnote n="22">²² In this article it is possible to see that the EU enshrined the rule of law as one of its core values that must be respected by every State member: “The Union is founded on the values of respect for human dignity, freedom, democracy, equality, **the rule of law** and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail” (highlighted by the author).</footnote>
Another claim is the error of law related to the existence or the interpretation of a rule, also frequently evoked by the lawyers, such as in the jurisprudence number 2500647, from January 22nd, 2025, where there is a misconception about the procedure that should have been adopted regarding an immigrant's situation in France. A mistake was made in terms of the law itself, as it is the law that gives the rules that have to be followed by the administration. In this case specifically, the law states that when an immigrant has left his fingerprints in another country of the EU, meaning the first country from the Schengen area where he entered or placed an asylum plea, the person must be placed on a procedure called Dublin and, therefore, removed back to the aforementioned country, and not to his place of origin, so the lawyer claimed that there had been an error when judging his client's case.

Those are the main arguments used to attack the legality of the distancing measure, although not the only ones. It is also important to dive in the merit of the process, the core of the prefect's decision to distance an immigrant, as it is where the lawyers have the most freedom to work with.

### 2.4.2 *The merit of the process*

As stated in the first part of this research, the right to stay is a normative principle used to claim that long-term residents should have a recognized protection from the state's power to remove them from the territory, due to the fact that they achieved social membership by spending a certain amount of time in the chosen country (Carens, 2013, p. 177), created ties with the community, contributed to it by working and paying taxes, built a family, perhaps even with a citizen, and so on. It is the acquisition of a strong moral right to remain in the habitual residence after living there for a significant amount of time, challenging restrictive immigration policies that prioritise formal nationality over social attachments.

Even if it is not a codified legal principle, neither explicitly present in French nor European legislation, as will be demonstrated in the following chapters, the principle is nevertheless indirectly invoked in jurisprudence and lawyer's appeals, through positive legal arguments that allow jurists to utilise the categories that compose the social membership to prove that a removal measure can disproportionately harm their client's rights.
After analysing the jurisprudence, it was possible to conclude that the most used arguments to challenge a removal order are the ones based on articles 3 and 8 from the ECHR, the article 3§1 from the Convention on the Rights of the Child (CRC) and the argument of menace to public order. Although firmly grounded in legislation, those claims are more opened to interpretation and that is why this research will examine their legal meaning, relevance, how lawyers interpret and use them and their impact on judicial decisions and the lives of the migrants concerned.

The first arguments, based on articles 8 from the ECHR and 3§1º, from the CRC, present a logical reasoning closer to the principle, as it is based on proof of integration of the people concerned, which is exactly what the right to stay preaches. Whereas the last two arguments are considered more distant from the social membership aspect of the principle, as the article 3 from the ECHR is usually used towards refugees and asylum seekers, who fall under the temporary protection of the 1951 Refugee Convention, as refugees have an interest of returning to their home countries once the situation there is safer for them, and the argument of the public menace leads toward the protection of the public order, not on the full integration of these people. That is why this study organised the lawyers' and judges' arguments in such a way to facilitate the analysis of them, as it is going to be addressed next.

a) *Article 3§1º from the Convention on the Rights of the Child (CRC).*

First, parenthood and motherhood in France is commonly used as an argument to overturn a removal measure, as long as it is proved that it is in the best interest of the child that his or her parents stay in the country with him or that the kid cannot be sent back with his parents, as preached by art. 3§1º, from the CRC (UNHR, 1989).

This means that if it is proved that the distancing of the parents would cause a split in the family, leaving the child separated from one of her parents or both of them, which would in turn cause suffering and distress, or that the child cannot follow its parents due to possessing a refugee status and, therefore, being protected from refoulement to her country of origin as there is a risk to her life, or finally because she is French and, consequently, cannot be expelled from her country of nationality, the art. 3§1º comes as a strong argument against the measures and can grant the parents a protection, until the child completes 18 years of age:
"It follows from the case files, which are not disputed by the Prefect of the Loire — who submitted no observations in defense — that Ms. B and Mr. A are the parents of the child Aïcha A, born in France on October 27, 2022. The National Court of Asylum (CNDA) recognized this child's refugee status by a decision dated April 2, 2024, **due to the serious risk that this very young child would be subjected to the practice of female genital mutilation by her maternal and paternal families if returned to Guinea**. Given that refugee status is declaratory in nature, **the applicants are entitled to argue that, by ordering them to leave French territory through the contested decisions, the Prefect of the Loire violated the best interests of their daughter**. For this reason, and without the need to rule on the other arguments raised, **they are entitled to seek the annulment of the contested removal measures** and, consequently, the annulment of the subsequent decisions granting them a period for voluntary departure and designating their country of return" (Tribunal Administratif de Lyon, n° 2403487, 26th July 2024) (V).

In this jurisprudence, the parents were granted the right to stay in France as their daughter is protected by the international law regarding refugees, a status that was bestowed upon her by the CNDA, as she would risk facing a female genital mutilation from both her father and mother's family, in case of return to Guinea, her country of origin. This means that she cannot be refouled to her country, but neither can be left alone in France if her parents are expelled, as she is still a minor and, therefore, extremely vulnerable. That is why the judge ruled that it is in the best interest of the child to cancel the OQTF that both her parents received, so they can be together here, such as lawyer 9 mentioned during the interview:

> "So basically, that's it. When children are involved, it's the International Convention on the Rights of the Child, specifically Article 3, paragraph 1, because for a child, their best interest is for their father and mother to stay with them, especially if they are in school, have learned French, and have built their sense of belonging here, etc." (VI).

It is a matter of respecting the child's right to a proper life alongside her parents and the integration that the minor already pursued here, by going to a French school, learning French, socializing with other kids that are French, and so on.

It also implies that expulsion is both immoral and illegal not only towards the infant but also towards the affected family, as it violates international law by disrupting the family unit and disrespecting fundamental human rights that include the right to dignity and the right to a safe and nurturing environment, necessary for a child's full development, as defended by the CRC. Moreover, expulsion goes against the very essence of the principle of the right to stay, particularly when it comes to children, as they are often the first to achieve social membership in the host society, as they usually arrive at a young age, brought by their parents, so they do not possess strong ties to their country of origin. Many do not even speak the language of their birth country and quickly adapt to their new culture, being immersed in all aspects of it from an early age. This is especially true for
those who become long-term residents, developing strong bonds within their
communities, much like second-generation migrants, and have the right to access the
safety of a membership status (Carens, 2013, p. 47; Shachar, 2007).

Denying them their right to stay through the social membership that they created
throughout the years, as their claim is very strong, based on their integration into the
country where their parents decided to live, as it is where they spent their formative years.
Social membership entitles someone not to be deported, especially in cases where there
is a strong claim to the community (Carens, 2013, p. 104), as the longer the presence, the
stronger the claim to it.

Sending the child back can cause disproportionate harm<fnref n="23" /> to his private and family life,
and it is a strong argument that can be used to contest an OQTF or an expulsion order:

“Author: have you seen any other arguments that were really... or have you yourself already used other arguments? That's when we mentioned that it was less... How can I put it? Apart from the question of family, financial stability, and other things? Well, there's also the implicit argument of isolation in the country of origin, because someone can have the nationality of a country and yet have no ties left with that country. I had a client who told me that they had been sent back to Algeria. He said to me... He had been deported and came back after six months. He told me that they might as well have sent him to China. It would have been the same. He didn't speak Arabic, he had no family there, he was sleeping on the streets, he had no bearings at all, he couldn't even read the street signs” (VII).

Although this example brought by lawyer 8 does not mention the age at which his client
entered France, the fact that he has no attachments back home, does not know the
language and cannot even read the street signs, shows that he was probably brought to
France at a very young age by his parents or those responsible for his caring, and quickly
became socially attached to the country. His expulsion created a strong rupture to his life,
forcing him to return to France in less than six months, as he was even sleeping on the
streets from lack of stable ties that could welcome him back and could not communicate
with the people that share his nationality. It highlights the disproportionate harm caused
to someone's right to stay by expelling those that arrived as children, given the deep ties
they have formed over time, which persist even in adulthood.

<footnote n="23">²³By disproportionate harm, the administrative jurisprudence makes usage of the principle of proportionality, important for the effective protection of human rights in practice, concerning any interference with or restriction of human rights, primarily by a state, such as an expulsion from the territory. It means that any action by a state that affects human rights in any way must be necessary and reasonably justified by the state in question, as to not inflict long-term and profound damage on those affected by it.</footnote>
It is important to notice that irregular status becomes irrelevant over time, especially in cases regarding those that arrived at a very young age, as they were brought without their knowledge, and also they have already created their live in the country, exactly like the ones that have the citizenship, even if they stayed irregularly the whole time Carens (2013, p. 148).

Although it is a fairly used argument, it usually does not succeed into cancelling the distancing measure, as the Tribunal of Lyon does not view the arrival of a migrant at a young age as a strong argument that, on its own, can overturn a distancing measure, as it states that the person did not prove the presence of strong ties in France and, therefore, the absence of them in the country of origin, as there is usually at least a distant relative living there. A good example of this is the jurisprudence n° 2500310, from January 22nd, 2025, that confirmed the OQTF ordered against a Kosovar national that entered France by the age of 4, in 2005, on grounds that he did not provide enough evidence of integration or the absence of relatives back home.

This same argument is frequently used to remove young children from France along with their parents, stating that they have not created enough ties with the country and still have attachments to their country of origin, therefore, will not be harmed in case of a forced return (jurisprudence n° 2310978, from March 26th, 2024).

This reflects an extreme view of integration, only allowing individuals to remain in France if they are entirely disconnected from their country of origin, with no remaining family ties, despite having entered France at a young age and, therefore, having spent their formative years in the country without further contact with their birth country. It disregards their claims to integration and social belonging in favor of an integration that equates to total isolation from their roots.

This narrow understanding of integration is often challenged in legal proceedings through appeals to fundamental rights, such as the right to private and family life, claimed by article 8 of the ECHR.

b) *Article 8 of the European Convention on Human Rights (ECHR).*

Moving on, by looking through the jurisprudence collected, it became evident that the most recurring argument is related to the disproportionate harm caused to somebody's private and family life on the grounds of article 8 of the ECHR. This article, issued from
a legally binding and directly applicable law, states that: “Everyone has the right to respect for his private and family life, his home and his correspondence.” The Convention does not explicitly define what constitutes private and family life, leaving the definition at the discretion of the administration first and then of the judges to decide whether the immigrant whose process is being analyzed, has developed over the course of time a relationship with the country and the society strong enough to justify the non-application of an expulsion measure and, therefore, the concession of a visa or a residence permit.

It is in this article that the principle of the right to stay better shows itself, as the social membership has two key criteria: residence and the passage of time. The first refers to the relationships, interests, and identities that connect people to the place where they live, and the second refers to the fact that the longer someone lives in another country, the stronger their claim to social membership becomes, as they become involved in a network of relationships that multiply and deepen over time.

To verify if the individual developed a solid private and family life in France, the authorities will study his or her life, verifying several aspects about them, such as the fact of building a family, which would mean great suffering for all parties involved, such as the children and the partner, in case of a distancing measure, especially if the person is married to a French citizen, as previously mentioned.

Another aspect that is going to be analyzed is if the migrant has family in his country of origin, for example, which means that he will not be isolated if sent back, as already mentioned before, at the risk of seeing his appeal be denied on grounds of not being integrated enough, and his right to stay not considered:

> "Ms. C does not claim to have any ties in France, does not demonstrate any particular social integration, and does not dispute the family ties attributed to her in her country of origin by the contested decision, the argument based on the violation of Article 8 of the European Convention on Human Rights must be dismissed." (Tribunal Administratif de Lyon, n° 2402643, September 18th, 2024) (VIII).

The possession of a private or family life in France is a matter of integration to the French society, which is viewed as assimilation by the administration, meaning that the Tribunal considers community integration as being essential for granting the right to keep living here. If the long-term resident does not showcase aspects that denote integration, such as having a job, speaking French, engaging in relationships with other French citizens or at least people from different culture then the immigrants' background, it will not matter the amount of time lived in the territory. If they do not demonstrate this willingness to engage
with local culture, they will not be considered as enough integrated and, therefore, will
not be granted the right to stay and will see their OQTF or expulsion executed:

The jurisprudence number 2310978, from 26th March 2024, regards a Tunisian national had been living in France for 36 years, entering the country at 18 years of age and having established in it his new center of interests. Although he spent his formative years in Tunisia, he still passed most of his life in France, where he rebuilt his attachments, got married, had a child that is schooled there, and still received an OQTF and saw his appeal against it be rejected on grounds of not showing enough proof of integration and of his stay in France, also having already received another removal measure and having been signaled by the police for crimes.

This shows that although the Retailleau Circular previews a minimum of 7 years<fnref n="24" /> to start to be considered as integrated, as said by the lawyers, this jurisprudence shows that it does not matter if the person cannot prove in detail his or her presence in the territory.

Furthermore, if the immigrant has a criminal record, it is going to be weighed heavily against the individual, regardless of the time spent in the country. The Tribunal regards negatively the fact of having offenses, which shows the importance of going beyond the time-frame argument and demonstrating social and cultural integration with strong proof.

The first and most common way of showing integration is through the creation of family ties, such as marriage or stable union with a French or a European person, or by contributing to the community by engaging in associations and volunteering, having a good relationship with the others or having children here. It is also an argument endorsed by the lawyers when appealing a distancing measure, to show that the person has enough reasons for not being expelled, as it would cause them great harm to their private and family life:

> "Everything related to private and family life. So, marriage to a French citizen, a civil partnership (PACS) with a French citizen, parents of French children, parents of European children as well, and civil partnerships with a European citizen" (Lawyer 10) (IX).

The fact of being married to a French or European is viewed as a way of trying to integrate, instead of being secluded inside the migrants' own group, speaking their native

<footnote n="24">²⁴ The Circular states the following: « (...) En ce sens une durée de présence d'au moins 7 ans constitue l'un des indices d'intégration pertinent, pour la mise en œuvre des dispositions de l'article L. 435-1 du CESEDA et sans préjudice des autres éléments d'appréciation de l'intégration à la société française que vous pourrez mobiliser (...) » Légifrance, 2025.</footnote>
language and interacting only with their compatriots. It is a way that the administration
found to objectively verify something that is rather subjective, such as the concept
integration, although it is imperative to be able to prove it and also show a certain stability
of the relationship.

Sometimes the Tribunal will also consider as a harm to the family of a long-term resident when the expulsion is aimed against someone that is married to a person who possess a visa or a residence permit, which means that the person is together with another who is regularly in the country and that has the right to stay for a long time, with a residence permit. It is someone who already acquired the right to stay, even if not permanently and, therefore, already proved a certain level of integration and belonging to the French culture:

**Mr. A, who is married to an Algerian national holding a residence permit, falls into the categories eligible for family reunification.** Consequently, the argument that the residence permit refusal decision of 11 September 2023 violated point 5 of Article 6 of the Franco-Algerian Agreement is irrelevant and must be dismissed, so Mr. A is not entitled, on this basis, to challenge the legality of this decision against the order to leave French territory (...). The documents in the case file show that Mr. A has been residing in France for five years and **is eligible for family reunification, as his wife holds a residence permit.** Under these conditions, given his situation in France and the fact that he is not isolated in his country of origin, which he can return to during the implementation of the family reunification procedure. (Tribunal Administratif du Lyon, n° 2403574, July 30th, 2024) (X).

The fact of being married to an Algerian citizen that has a residence permit in France grants the migrant responsible for the appeal the right to a family reunification, a process that will allow him to live in France regularly. However, for him to undergo this process, he will need to go back to his country and then do the administrative procedure to reenter the territory, so his appeal to cancel the OQTF was rejected on this ground, even though the Tribunal recognized his right to a residence permit based on his marriage.

This is because a marriage creates deep ties not only between spouses, but also with each other's families and the communities to which they belong, and that is why they should not face expulsion (Carens, 2013, p. 149). Carens goes further to say that it does not matter the administrative status that the person holds, which means that irregular migrants that marry a citizen or a regular one should also be allowed to stay, on grounds of the social membership that they acquired.

Before the adoption of the new immigration law, the article L.631-3 from the CESEDA
stated the group of people that had a quasi-absolute protection against expulsion, including regular citizens that had been living in France for more than ten years and were married to a French citizen for more than 4 years, which goes to show that the law viewed marriage as a strong proof of integration, as long as the criteria are respected. However, with the new immigration law, two exceptions were integrated to the article, admitting the expulsion of these people if they committed acts of violence against elective public officers, those detaining public authority or those exercising a mission of public service, and also a second exception to societal protection, which admits the expulsion in case the person in question poses a threat to public order (Calabuig, p. 1708).

These quasi-absolute protections gave the impression that these people were almost French citizens, but without the official documents. However, with the change in legislation there has been an increase in the gap between actual citizens and non-citizens, even those with social membership, such as the ones that arrived before the age of 13 and the ones that are married to French nationals, once considered as practically citizens. It is a way of hardening the threshold between “true” French, those that cannot be expelled, and the long-term residents that, even when regular and properly integrated, are not considered French and, therefore, are always at risk of being expelled since they are always viewed as intrinsically illegitimate (Sayad, 2008, p. 112).

Moving on, another category that is adopted by the French administration to assess whether somebody is truly integrated or not and, consequently, whether the removal measure is going to cause disproportionate harm to the person's private and family life is through work. The fact of possessing a job contract for a considerate amount of time, especially if it is a permanent contract, called *Contrat à durée indeterminée* in France, can play a role when it comes to showing the social attachments created in the host country.

The right to seek employment should be seen as a human right, more precisely a membership-specific human right, as it should be an opportunity for everybody that has crossed the threshold of becoming a member of a community and, therefore, has already established their center of interests in the host country and should be allowed to work, as it is a basic need for survival and also a way to contribute to the community, by paying taxes, for example (Carens, 2013, p. 139).

It is also an important source of integration, as a way of bonding with other citizens that
work in the same place, a way of providing for themselves and their families, and a means
of creating a stable life in the chosen country, as it is not possible to live for a long time
in another country without a job. To be able to get one demonstrates that the person went
after it and is willing to put in the work to provide for themselves and contribute to the
country, without depending solely on social benefits. That is why the administration, and
the judiciary see professional integration as having a significant role when deciding
whether a person has truly created a private life in the country or not. Working under a
contract for a significant amount of time, especially if it is a CDI, can show that the person
really invested in finding a job and in keeping it, receiving later a contract that has no
expiration date, and is contributing to society by paying taxes and generating capital.

Some of the lawyers interviewed said that having a work contract is gaining a stronger
leverage in front of the judges, being viewed as a stronger characteristic of integration in
comparison to the family aspect:

"Author: what do judges consider, or often consider, as solid integration? Increasingly, employment (...) And I don't know, I feel like it reflects a shift, actually. It acknowledges a change that, I think, we have increasingly observed here in recent years. **More and more emphasis on employment.**" (Lawyer 5) (XI).

Along with the creation of significant attachments in the host country, professional
integration has been gaining more attention as a clear way of assessing someone's
belonging to a certain culture:

"**Integration is, first of all, your social network.** Have you built relationships with people around you? **Ideally with French people.** It's terrible to say, but I assure you that when you submit letters of support from people around you and they're only from fellow nationals, they'll say: are you really living in France, or are you still clinging a bit to your home country, because the people you associate with are only from your country, which suggests that you're still somewhat homesick. So, social relationships, being involved in some activity, social, cultural, volunteering, playing an instrument, joining a sports club, all of that is part of integration. And finally, **today, the ultimate model of integration in France is employment**" (Lawyer 9) (XII).

This tendency to benefit more the integration through work than the familiar aspect of it
reflects a political view of the type of immigration that France is willing to accept. It is
the difference between the imposed immigration, such as refugees and those under
subsidiary protection, and the chosen immigration, the workers, students, high-skilled
labors. With the first group, the country is obliged to accept them and take care of their
needs through social benefits because they are protected by international legislation, not
because of what they can give back to the economy, as they are usually forbidden from
working. Often, the only thing that they have is their family, sometimes their children are
born in the host country. Whereas the second group brings their skills and knowledge, even doing the jobs that citizens are not willing to do, with a special visa for it, as workers in jobs considered under tension, as lawyer 9 explained:

"Author: And if we compare it with the issue of family, does family play a role too?
So yes, family does play a role, but it's less effective for several reasons. The first one goes back to Sarkozy—he used to talk about "endured immigration." So, he divided immigration into two categories, saying there's "chosen immigration" and "endured immigration". The "endured" type is the one we don't want, but there are legal texts, like international conventions, that force us to accept these people. "Chosen" immigration, on the other hand, let us say, "We want skilled individuals, people with degrees and qualifications, those are the ones we want, and we should have the right to say no to the others". Family-based immigration falls more into that "endured" category. It's seen quite negatively because it doesn't "bring anything", it's just a matter of respecting the fact that someone started a family. And often, authorities argue it's a fait accompli, something that already happened and that people now use as a justification to stay" (XIII).

Here the lawyer mentions the concept of a *fait accompli*, as did the lawyer 7, which means a thing that has already happened or been decided before those affected hear about it, leaving them with no option but to accept it. By viewing the marriage between people with irregular status, or a regularized migrant with a non-regularized one, as a *fait accompli*, the administration states that the person should have known from the start about the risks that they were taking when marrying a particular person that can be expelled at any given moment. It is a way for the prefecture and the judges to push the responsibility back to those that decided to get married, denying them the right to stay and, therefore, the possibility of seeing their distancing measure cancelled from the very beginning.

This reasoning is unjust as it goes against the very own article 8 of the ECHR, that claims that everyone has the right to a family life, which includes marriage, but also against article 12 of the same Convention, as it also states a right to marry and to have a family for everyone that wishes to do so. By reasoning this way, arguing that people are getting married in France for the sole purpose of using it as an excuse to claim a justification to stay, is further from the reality, as most jurisprudence shows that people have already been married for quite some time before receiving an OQTF or an expulsion order, which means that it was not done with that intention.

Moreover, as the lawyer 9 presented in his interview, the Administration tends to privilege the integration through work over the integration through family life, which explains why those that have been working for a considerable amount of time, especially with a long-
term contract, even if they do not fulfill all the other criteria, still have a good chance of
seeing their plea accepted by the judge, in case they receive an OQTF or expulsion order:

Someone who doesn't speak French is a problem if they've been here for five years. There are judges who will be less sensitive to that, but who will pay more attention to whether the person has worked. And even someone who doesn't speak French very well after five years, but who has been working the entire time, will be viewed more favorably by that kind of judge (Lawyer 8) (XIV).

The fact that the job is viewed more favorably than the family or private life comes from
a political agenda that distinguishes chosen immigration from the endured one, as
explained before. It is for a fact that migratory politics are dictated by the economic
necessities of the job market, as for generations migrants have been recruited for working
jobs that often do not find enough citizens willing to work it, such as construction sites,
mines, houseworkers, security guards, and so on (Galbis, 2020). France has been
undertaking this measure for decades to palliate labor shortage and the democratic
challenge by attracting a trained, able-to-work, economically beneficial and willing to
contribute to social security, while pushing away those that are not seen as all the above.

However, it should be noted that the reality is still of the expulsability, inherent to the
immigrant in the nation-order, even in a market-driven order, in which the non-national
is tolerated as long as their capacities, training and work experience are fundamental to
the country, delimiting the degree of exposure to distancing measures based on the
concept of a “human-capital” view of citizenship, as worded by Ellerman (2020, 2517).

Right now, the discourse is no longer of stopping altogether the flux of economic migrants as they were usually viewed as coming to “steal jobs”, but rather substituting the imposed migration, the one based on the right of a family life and asylum seeking, by the one that is economically advantageous for the country.

In the discourse that lawyer 9 mentioned, given by Nicolas Sarcozy in June 2005, in front
of the National Assembly during the second convention of the political party called *Union
pour un mouvement populaire* <fnref n="25" />(UMP) that was centered around the popular project for
immigration, titled “a chosen immigration meaning a successful integration”<fnref n="26" />, he already
stated that it is in the best interest of the country to regulate the immigration flux, saying

<footnote n="25">²⁵ In English it means Union for a Popular Movement, and it a French political party considered as right-centrist, created in 2002 for the legislative elections at the same year, counting with famous figures, such as ex-president Jacques Chirac and ex-president Nicolas Sarkozy (Perspective Monde).</footnote>

<footnote n="26">²⁶ Original : "Pour un projet populaire : une immigration choisie, une intégration réussie" (UMP).</footnote>
that “We will be better able to welcome refugees and immigrants if we can curb illegal immigration and regulate family immigration” (Vie publique, 2005), by choosing those that are allowed to enter, while keeping away those that are not viewed as economically viable:

"They'll tell you, work is what defines a foreigner's integration in France. What we want, it's a bit the "economicus" idea, is the productive foreigner, that's the one we want. Integration is only seen through work, because we, the French, want healthy foreigners who contribute, who pay for our elderly people's pensions, and so on" (lawyer 9) (XV).

It also leads to the fact that even though working irregularly is not allowed, leading to heavy punishment of those that contract them (a fine of up to 20 750 euros is demanded for each irregular worker found working under an employer's contract), the fact of working is still considered as an important proof of integration to the society, especially pertinent for demanding a titre de séjour exceptionnel (the titre de séjour "travail", is specific for irregular immigrants in the country, who can demonstrate a length of stay in France), as it shows a willingness to go beyond the rules and work, even when it is not allowed, such as the lawyer explained:

"(...) People were being asked to produce pay slips, but they were forbidden to work. So, basically, it means that if they manage to do it, it's like they're some kind of superhuman, really. It's a bit like Nietzsche's Übermensch. They manage to rise above the mass of ordinary people. So, it means they deserve to be granted regularization because they've achieved things that are technically impossible (Lawyer 9) (XVI).

He goes further to say that in the Region where Lyon is located, the concept of integration relies a lot on work: "So today, if you ask me, in 2025, what does integration mean? I'll tell you, when it comes to the Rhône prefecture, integration means work" (XVII).

Although it is a type of integration that is highly appreciated by the Tribunal in Lyon, as it is possible to see by the lawyers' opinions, it is also true that the migrant has to be working in a stable job for at least more than a year, with preferably a CDI contract, in order to be considered as sufficient integration and needs to be able to prove all of this properly:

8. Mr. A C argues that he entered France in 2022, that he is working "off the books" as a painter while awaiting the possibility of regularizing his status, and that he is living with his sister, who holds a residence permit, in Grenoble. Moreover, he provides no evidence to demonstrate any form of social or professional integration in France (Tribunal Administratif de Lyon, n° 2403832, April 22nd, 2024) (XVIII).
It is also imperative that the migrant show proof of this integration through documents, such as pay-slips<sup>27</sup>, letters from employers attesting the work conducted by the person in question, as the Tribunal wants to know if the person really has been working throughout all the years that they have spent here:

> Although Mr. B states that he has been working at the company AS 69 since March 2023, he only submitted, before the close of the investigation, a handwritten statement from a person claiming to be his employer, along with a few attestations from colleagues, without providing any other evidence regarding his professional situation that would allow an assessment of the reality of his professional integration in France, especially since, in any case, this professional experience is still relatively recent (Tribunal Administratif de Lyon, n° 2403897, April 26<sup>th</sup>, 2024) (XIX).

This shows that the time-length at the job is also important when it comes to judging an appeal based on this argument, as it equally shows the duration of stay in the country, as someone who has been here for a very long time is obliged to have been working for a significant amount of time.

When asked if other arguments could be used to justify a proper integration, such as having a business in France, for example, the lawyers answered that it could be used as a claim, but it would be considered as a proof of work, not as something independently. They added that it is rare to encounter migrants that have businesses in France, due to the immense bureaucracy to open and maintain it, which is almost impossible for the undocumented ones, and because immigrants often do not have the financial means for that. In the jurisprudence n° 2305517, from March 29<sup>th</sup>, 2024, the immigrant in question is an Algerian man that manages several businesses established in Algeria and is an associate to a civil real estate company in France, owning several bank accounts, all these facts being used as arguments to prove his integration in the country. However, the Tribunal judged that he did not prove to have enough resources to keep living there from his own revenues, without having to work, as he did not have a job at the time of the expulsion, so his appeal was denied.

Another factor that is equally considered as important when judging whether somebody has the right to keep living in France or not is the length of the stay in France, as it shows the strength of attachment to the country, the probability of the absence of ties back home and the fact that the person built a new life outside their birth country.

<footnote n="27"><sup>27</sup> Pay-slips are viewed as the strongest proof of work for the public administration, especially when the immigrant is demanding a titre de séjour exceptionnel due to his work: "la preuve de travail privilégiée reste le bulletin de paie" (Service-Publique.fr).</footnote>
The Tribunal is explicit when denying someone's stay in the country when they have lived there for only a short period of time, even though they show other proof of integration or are not viewed as a threat to the society:

Secondly, as previously stated, Mr. A, who identifies as C, regardless of the date considered, recently arrived in France, where he has no particular ties. Under these circumstances, even in the absence of a previous removal order or any threat to public order, by imposing a one-year ban on returning to French territory against the applicant, the Prefect of Ain did not commit an error of judgment (Tribunal Administratif de Lyon, N°. 2409211, September 18th, 2024) (XX).

However, immigration laws have consistently become more restrictive with each new piece of legislation, and the most recent reform is no exception. Integration is becoming increasingly difficult to prove, as each new law raises the minimum amount of time that somebody must spend in France before even being considered as possibly integrated:

> "Author: Is there a time threshold? A minimum length of stay?
In the past, about five years ago, we would tell people that if they had been here for less
than 2-3 years, it wasn't worth applying. Between 3 and 5 years, there was some hope.
Beyond 5 years, they were generally considered to have a good length of stay. And over
time, this has shifted... Now, for people who haven't been here for 5 years, except in
very particular cases, I usually advise them not to apply for a residence permit yet,
but instead to prepare their case well so that it is strong once they reach 5 years of stay.
Now, we are looking at more than 5 years." (Lawyer 10) (XXI).

The same question was posed to another lawyer and he also responded by saying that there has been a hardening of the laws regarding migration in France, which lead to an increase in the time that somebody has to spend here to be considered as a significant aspect of integration:

> "(...) It's a hardening. And actually, I think it's also a setback in the notion of the right to
> lead a normal private and family life, because before, under the Valls circular, the required
> length of presence was 5 to 7 years — 5 years being significant, 7 years particularly
> significant. With the Retailleau Circular, it shifted to 7 years. The 5-year threshold
> disappeared. In reality, in the Rhône, the 5-year threshold had already been gone for quite
> a while." (Lawyer 5) (XXII).

Lawyer 6 that has an experience of more than 40 years working with immigrant law in
Lyon addressed the concern about the hardening of immigration laws in France:

> "Author: and considering your experience, do you see an increase or a decrease in the
> number of OQTF orders or expulsions over the years?
There has been an increase in OQTFs since 2018.
Alright. Since the minister named Gérard Collomb, who passed the law in 2018, and it
just keeps increasing with every new minister. Darmanin, Retailleau—it never stops. So,
there's been a hardening. A hardening and an increase. An increase without even thinking
(...) Sometimes, the administration issues these orders to leave the territory without even
thinking (XXIII).
With each law, rights are gradually being reduced and the possibilities remaining in the country are becoming increasingly limited. Although the jurisprudence analyzed does not yet reflect a significant shift since the most recent immigration law enacted, it has nonetheless introduced stricter conditions for this population, reflecting a broader trend in France, where each successive law tends to impose more restrictive measures. There is also the fact that governments rarely go back when legislation is already being executed, which means that the rights that immigrants acquired and enjoyed before, once they are limited or cancelled, will rarely make a comeback:

"(...) So there has never really been a clearly open ideological stance from successive governments. In fact, when you look at the history of immigration and immigration laws, I call it the *click-and-reverse* effect meaning that every time we move forward, we actually end up creating even harsher laws, and we never go back. That is, we never dismantle extremely harsh laws by saying, "We've gone too far, maybe we should take a step back." That just doesn't happen. Even when left-wing governments return to power, we tell ourselves, "Alright, some more humanist-minded people are coming in, maybe they'll undo some of the previous government's measures", but in reality, that never happens. Sometimes, yes, we hear talk about "deserving" or "vulnerable" foreigners, those people, yes, the law should progress for them. But for everyone else, we don't roll anything back, because it's believed that this is what the French people want" (lawyer 9) (XXIV).

It is a moral duty of the host state to offer citizenship, or at least the possibility to keep living regularly, to immigrants who meet certain conditions, even if the person was not invited into the country or is right now an irregular migrant, as once people have spent a certain amount of time in the state they become entitled to claim the membership of it, time working as an important measure of how strong this claim is (Bamford, 2024; Carens, 2013), as it leads to the creation of personal and familiar attachments:

Mr. B claims to have entered France in 1983, when he was less than one year old, as part of a family reunification procedure, and to have always lived in the country, where he was placed in a care home at the age of 16 following the accidental death of his parents. He further claims to have been in a relationship between 2003 and 2010 with a French national, with whom he has two children, now aged 17 and 18, both of French nationality (...) However, despite his particularly long period of residence on national territory, he fails to demonstrate that he has durable personal ties in France, particularly concerning his two children, as he himself admits to having only distant relations with the younger child following the couple's separation in 2010. It is also noted that he was convicted by the Bonneville Criminal Court on July 7, 2011, for family abandonment and failure to pay child support. Although he claims in court that many of his family members are present in France, he does not provide evidence of this. While he mentions having pursued schooling and professional training, he submits no supporting documents. Moreover, such a long period of residence must be put into perspective, in terms of his integration, by the fact that he was subject to nearly twenty criminal convictions between April 1, 2011, and September 7, 2022 (Tribunal Administratif de Lyon, N° 2500818, January 24th 2025) (XXV).
This jurisprudence shows somebody that entered regularly in France for the process of familiar regrouping, in 1983 when he was less than a year old of age, and now, at the age of 42, receives an OQTF and has to leave the country, even though he has spent most of his life in France, married a French citizen and had two French kids.

The judge argues that he does not dispose of personal and stable attachments in France, as he rarely contacts his children after he divorced from the French citizen. Furthermore, it is stated that he has several convictions for familiar abandonment, absence of payment of alimony, stealing, threatening to death, and so on, which means that he poses a menace to the public order and, therefore, that such a length of residence must also be put into perspective, regarding his integration. It is a way of saying that despite his long-term residence in the country, he is still under the “imperative of provisionality”, his presence as a non-national being considered as illegitimate and abnormal (Sayad, 2008), and specially in his case, viewed as a threat to the society.

So, when France expels people that have already been here for a significant amount of time and that have formed attachments to this country, even if they still have family in their country of origin, the State goes against the principle, causing a human rights violation of these migrants private and family life, contradicting the articles 8 and 12 of the ECHR. A private and family life requires time and stability, including geographical stability (Fathi and Laoire, 2024; Birnie, 2020), to be created and the fact that someone can be expelled at any given moment, after years here, leaving behind a job and giving up a career, even if temporary, sometimes a spouse or companion, the community, and so on, causes disproportionate harm to them, as is well illustrated by the lawyers.

When posed the question about the minimum time of stay in France, lawyer 9 answered with an example of a Chinese client that had received an OQTF after living in France for 17 years and did not see his appeal accepted, as even after all this time he still did not speak French and needed an interpreter, to which the judges considered him as not enough integrated:

“(...) So, does that mean you don't actually want to live with French people? You want to stay in some sort of ghetto with your fellow nationals and live in France as if you were in China. It's almost a bit racist, what I'm saying, but that's exactly how he presents it. Saying that the French model of integration is to assimilate. We are in contact with French people, with the community, we go out of our homes and are not in exclusion, precisely (Lawyer 9) (XXVI).
Integration is viewed as assimilation, as a person will not be deemed as integrated enough by the administration if he or she does not prove to have adopted the French “way of living” as her own way of living, as mentioned before.

It shows that the principle of the right to stay, where the time spent in the host country has great value when it comes to showing that someone acquired social membership, does not apply to the reality of the French administration.

The preach that irregular migrants should be given legal status as residents once they have been settled for a long time in their host country, and the fact that some circumstances, such as arriving as children or marrying citizens or permanent residents, may accelerate or strengthen their moral claims to stay, or may even be enough on their own to justify the principle (Carens, 2013, p. 90), does not stand ground in France jurisprudence. The administration will not grant a right to keep living in the territory or cancel a distancing measure based solely on the time spent in the country, as the passage of time is not viewed as a strong claim to membership.

However, despite not giving as much importance to the same aspects of the social membership as Carens does it was possible to verify through the analysis of the jurisprudence collected in Lyon's tribunals and through the interview with lawyers that work in the city, that the principle of the right to stay is adopted by the French jurisprudence.

By questioning and listening to the lawyers, it became clear that the principle is not used extensively in *verbatim*, neither in the appeals nor in the decisions, as it is not a positive principle, meaning a principle adopted by French legislation and, therefore, cannot be used directly as an argument. It is also viewed as a theoretical argument used in academia, rather than a pragmatical principle that could be applied in Lyon's reality:

> "Author: when I mention this question of the right to stay, what do you think about the elements in general? As I was telling you, it made me smile a little because it's really not, when I saw your email (...) the right to stay, it's really a researcher's concept. It's interesting, that's how we move forward, but **it didn't seem very pragmatic to me**. Because **we don't talk about a right to stay, but in practice, we still use the same line of argument when talking about people who have built their lives on French territory**. For example, children" (Lawyer 10) (XXVII).

French immigration law does not recognize a right for long-term residents to keep living in the country, even after they fulfilled the criteria necessary to achieve social membership, as presented by Carens (2013). It does not matter if the person has been
living here for a long time, have children, is married to a French person, work, study or
already have a diploma, have a stable housing, speak French, and so on, the person still
will not have a right to stay guaranteed by law, as it is not previewed in the domestic
legislation.

The only allowance that migrants have and that gives them a type of right to keep living here is through the * titre de séjour*, which grants them the status of a regularized immigrant, although not permanent, or through naturalization.

However, the article 8 of the ECHR brings a different type of protection to immigrants that are usually deprived of any type of it, such as the undocumented ones, as it prevents the prefecture to going forward with a decision that is going to cause disproportionate harm to someone's private and family life.

Taking into consideration that this disproportionate harm comes from the fact that the person achieved a level of integration into the French culture that expelling them would cause a disruption so violent that it is not proportionate to the fact that they disrespected a law by overstaying their * titre* or by committing a crime and, therefore, being a menace to the public order. In order to prove this integration, the immigrant must show enough evidence of assimilation to the country.

Furthermore, another pattern that became evident by analyzing the jurisprudence along with the interviews is the fact that the administration rules by using a negative way of thinking, which means that an immigrant may see his removal measure cancelled because if it was executed it would cause him a disproportionate harm, which cannot be done by the State, and not because the prefecture or the judges recognized his right to keep living in France. It means that the judge can deny the state's power to expel someone based on the consequences that this action would probably have on the migrant in question and on his family, but not because he acquired a positive right to stay in the territory:

(...) So, that's where it gets interesting, and **that's where it resonates with me in relation to the question of the right to stay**, it kind of comes down to the same thing. But, in any case, from what I perceive in French law, it's that **when you are a foreigner, you rarely have the right to something**. The administrative judge, I don't know if you've read any **decisions from the administrative judge, often expresses himself in the negative**. That is to say, it is not established that, or Mr. does not say that, or the administration. And in the end, here, in a way, it's the same thing, it's a bit reversed, it's saying, **we cannot expel you, we cannot take a removal measure because you have many ties. But it's rather that, on the contrary, you have the right to stay because you have many ties, and**