France : Sans-papiers call for moratorium on deportations
9 septembre 1997 (MAHA)
PARIS, 9 September 1997 (MAHA)
Twin specters of new medical insurance scheme, new immigration legislation broadens terrain of AIDS strugglesIn the wake of the 27 June circular defining several "categories" of sans-papiers or undocumented who could apply for a one-year residency card on a case-by-case basis, the sans-papiers movement — together with Act Up Paris, the legal defense group GISTI, and other movement supporters — called on 1 August for a moratorium on all deportations.
As we go to press, the French government presented a preliminary version of the amendments it will introduce to existing immigration legislation. This betrayal of an electoral promise to abolish the Pasqua-Debré laws came as a shock to some, but the signals had been clear and steady since Jospin’s surprise victory.
Here, MAHA looks at the regularization circular, the new "universal" medical insurance scheme set to replace social security, and the new report on immigration intended to provide a framework for new legislation. Taken together, these developments show the urgency of making organizing for health care for all, regardless of immigration status, as part and parcel of any organizing for immigrant rights and social justice.
Universal medical insurance : for whom ?
French union boss Nicole Notat’s declaration on national television that the much-ballyhooed "universal health insurance" or AMU (assurance maladie universelle) scheme would cover "all legal residents" sounded the alarm for immigrant AIDS activists.
When the AMU has been discussed in fora like the Conseil national de santé, it has been presented as the solution to "guarantee access to quality health care for all." But until Notat’s declarations, nothing had leaked out about what the plan might mean for immigrant communities.
Details about the plan have been sketchy. Under the present system, to get on social security you must have a regular job. The Ministry of Social Affairs told MAHA that the major innovation coming with AMU is that access to medical insurance and social security will be based on "stable and regular [i.e., legal] residency."
Some public health workers at the Ministry, however, have argued that it is essential "to public health" for all foreigners living in France, including the undocumented, to be taken on by AMU. Otherwise, the undocumented will be the only ones left to use whatever vestiges may be left of the free medical aid system.
The considerable precedent for arguing that a person is a resident whether or not he/she has legal immigration papers includes :
- The Conseil d’Etat made it clear in a 8 January 1981 decision that the condition of residency is "satisfied if a foreigner resides in France in circumstances which are not occasional and which present a minimum of stability, and this situation must be examined on a case-by-case basis."
- Department of Social Affairs (DAS) Circular 96-64, published in the Bulletin Officiel on 7 December 1996, calls for a simplified procedure to access free medical aid by which a person could prove he or she is a "resident" simply by signing a sworn statement giving the dates in which they have been living in France.
- Convention 118 of the International Labor Organization, which requires equality of treatment between nationals and non-nationals with respect to social security, makes it clear in its first article that "the term residency designates where a person usually resides."
"Just and efficient" immigration controls : a contradiction in terms
While the parameters of the new insurance scheme are being set behind closed doors, Patrick Weil’s incendiary report, commissioned by government, tried but failed to clearly mark the restrictive boundaries on public debate over immigration.
Weil believes there exists today a Republican "convergence of analysis" : the main problem with immigration is that the law no longer clearly separates people with papers from those without them, the docile majority and the delinquent minority (to be swiftly deported).
Fitting into that logic, the report recommends making people who are gravely ill a privileged category while drastically restricting and policing the rights to health care and social security
"Overall," believes Patrick Weil, "the laws about access to health care are satisfactory." Satisfactory for whom ? On paper, the system appears to guarantee free health care. In practice you have a good chance to see a doctor and get medicines you need — if you know your rights and you’re ready to fight for them.
For Weil, the problems are elsewhere : it is "indispensable," we are told, that "not one foreigner without legal residency gain access to social security benefits."
Weil claims that existing controls are "insufficient," claiming that undocumented foreigners use forged residency permits to get on welfare. He wants the social security administrations to check passports as well as residency permits.
Although Weil concedes that "fraud" is "certainly not excessive," he is convinced there is a "psychological effect" where strict policing of immigration status will end the "recurrent polemics" about welfare fraud and "lift the suspicion off of the overwhelming majority of foreigners who are legal."
But Weil is a man of the times. Why turn civil servants into immigration officers, when computers can do the dirty work ? He proposes to link the social security computer files wihth those of the national unemployment agency (ANPE) and the Interior Ministry’s AGDREF system. Local social security offices would send batches of files and automatically "freeze" the social security benefits of any foreigner whose file could not be found by the police.
URMED plays waiting game
For URMED’s AIDS, immigrant rights, and antiracist organizations, dedicated to protecting people who are gravely ill from deportation, the circular does not address, and may actually worsen, long-standing abuses of medical confidentiality and other problems. Although URMED wrote to the government on 7 July about its concerns, member organizations are still waiting to see the outcome of the individual cases taken up by the collective.
For URMED, the circular’s offer of a one-year residency permit granting the right to work to people who are gravely ill is a "very positive step." (Until January 1997, URMED’s demand had been that a 10-year residency card be granted to all people who are gravely ill. The collective now deems the one-year temporary permit acceptable.) If the person can find a job, they will then be able to get on social security. For those who do not, says URMED, home medical aid complemented by social aid should be available.
URMED argues that the right to work should be granted automatically, as it is not the task of immigration authorities to decide whether or not a person is too sick to work.
Finally, the current system leaves too many poor people with bills for "tens of thousands of francs of care", so URMED calls on the government to cancel the sometime astronomical debts of immigrants who, for whatever reason, have not been able to have the cost of their care reimbursed.
URMED asks the government for absolute respect of medical confidentiality : the practice of stamping the residency papers of gravely ill people with the mark "for health care," stigmatises the person, and opens the door to discrimination. Also, the medical certificate which is the basis for granting regularization must be kept out of the hands of the police and immigration administration. This problem is compounded by the fact that each administration has produced its own application forms for regularization. Some of the forms ask for a passport, even though many embassies won’t deliver a passport without first confirming that the person has legal residency in France.
Double Peine remains
The Chevènement circular advises the prefectures to grant one year temporary permit, "except in the case of a menace to public order." This leaves intact the Double Peine of prison plus deportation.
URMED is "deeply disappointed" by the circular’s exclusion of people considered to be a "menace to the public order." Most often these are youths who receive an ITF (interdiction du territoire français) on top of their prison sentence, and are targetted for deportation.
The approach taken is "more repressive than it is humanitarian, even though they can rightfully claim protection under article three of the European Court of Human Rights," reminds URMED. In a 1994 decision, the European Court decision (Nasri vs. France) the Court clearly stated that the "delictuous behaviour of an individual does not deny a State of its obligation to respect article three."
According to the GISTI, people who have been condemned to an ITF due to their immigration status have a fairly good chance of winning their appeal. But others, who have been condemned under criminal law, do not. Nevertheless, "nothing prevents you from trying," insists the GISTI.
Under the current, Kafkaesque ad hoc system, AIDS organizations often end up negotiating... house arrest for someone just coming out of prison. Then, people who are gravely ill may be granted an APS (autorisation de séjour pour soins), an administrative status which grants few if any rights and must be renewed every three months.
The only way to lift an ITF is by appealing to the Tribunal Administratif (TA). But this appeal can only be filed six months after the person has been judged, or once the person has already been deported. These two conditions effectively "make it impossible to regularize someone who is sick and who has an ITF," says URMED.
URMED says the fix must come through legislative reform, but until that happens, URMED asks the government to allow ITF appeals from people who are gravely ill, and to lift their house arrest so they may be granted a residency permit (under the new article 25-8, the so-called Dray amendment to the Debré law) and access to social security.