Schengen visas and Algerian spouses of French citizens (EN)

One of the guiding principles in French immigration law is the obligation for the foreign, non-EU, citizen who wishes to settle down in France to possess a valid long stay visa upon arrival. The complete absence of visa constitutes, of course, a violation of the obligation. Being in possession of a long stay visa, but not the appropriate one considering the true purpose of the stay, is also a way to not respect such an imperative : for instance, entering France on a student visa when in fact aiming to work after arrival is evidently not acceptable, at least for entry reasons (and for other reasons too, relative to the type of rights granted by each status).

The way an individual enters France has an impact on the rules that will be applied to him/her, and it’s at that moment that the great divide between legal and illegal immigration operates. Entering France illegally does not necessarily strike the entire stay of the individual with illegality, but it does restrict his access to a residence permit to very specific and much more demanding paths, legally and practically speaking. French lawmakers, who do not shy away from symbolic gestures, emphasized this distinction by naming the legal code governing these rules the Code of entry and stay of foreigners and asylum law (CESEDA), clearly separating these two situations and bodies of law.  

Taking legal immigration into account, we are therefore unsurprised to learn that the law does not tolerate any exceptions and authorizes no one to enter France without a visa if this person will then require a residence permit. Similarly, no legal text allows a foreigner to enter France on the basis of a short stay visa (C visa or Schengen visa), or any long stay visa that would be inappropriate to their situation, and then request the relevant residence permit. This is the meaning of article L412-1 of the CESEDA, which sets the obligation to possess no other visa than the appropriate long stay visa as a strict condition to then obtain a residence permit .

No exceptions, really ? One legal exception does exist, and not just any exception : article L423-2 of the CESEDA removes the obligation to possess the appropriate long stay visa for spouses of French citizens. This does not mean that the “spouse of French citizen” visa does not exist, but that it is possible to do without under certain circumstances. The reason, I believe, is to allow a foreigner engaged with a French citizen to enter the country as a tourist, get married in France, and to benefit right away from the Spouse of French citizen status without having to go back and forth to request said appropriate visa. This does not mean that the conditions for obtaining the residence permit under those circumstances are easy, and it happens frequently that newlyweds get these conditions wrong and end up in strange situations.

One legal exception, then. But that’s not all. Article L412-1 of the CESEDA is applicable under the reserve of France’s international obligations. Such obligations entail agreements concluded under the framework of multinational organisations (those relative to asylum laws for instance), but also bilateral agreements between France and other States, creating specific rules and statuses. The French-Algerian bilateral agreement of December 27, 1968 is such an agreement. Amended multiple times, it possesses a unique place among all others, obviously due to historic reasons. According to the Ministry of interior affairs’ website, this agreement exempts Algerians from French common immigration law, with the exception of procedural rules. This interpretation from the Ministère does not come from explicit sources and carries its lot of issues for practitioners.

That very same website from the Ministère de l’Intérieur also brings up something worth mentioning. According to this platform, entry of Algerian citizens is made easier by the agreement. Only a legal entrance on the French territory is required for a few statuses and the issuance of their corresponding residence permits (the term for Algerian citizens is “residence certificate”). Would it be possible for Algerian citizens to enter France on a Schengen visa, that is a short stay visa, and still settle down permanently ? This ought to make anyone involved in such matters frown : the administration is especially demanding when it comes to Algerian citizens (extra documents are needed ; specific steps must be followed, etc…). One would truly have to appreciate a real challenge to try and submit an Algerian certificate application without the appropriate visa, as the website is suggesting here.

In fact, this “easy entry” (poor choice of words, as we will discuss) applies quasi exclusively to Algerian spouses of French citizens. They benefit from a similar exemption to article L412-1 of the CESEDA : entry on the French territory does not need to be made on the proper visa. It only needs to be regular. Therefore, as long as the Algerian citizen has entered the country on the basis of a valid visa, whatever the type or status, he/she will be able to request a “Spouse of French citizen” residence certificate. The agreement uses the same wording for the Algerian spouse of foreign scientists.  

Legally speaking, we can be more or less satisfied with this situation. Not taking into account the Ministère de l'Intérieur's website, which may seem overly general in its terms, it is not shocking that Algerian spouses of French citizens benefit from the same exemption as non-Algerian spouses of French citizens. In practice, however, things are quite different. Let’s put aside the fact that all applications for Algerian citizens are more complex than most, and let’s instead take a look at the “France visas” website, which is the official website for completing a visa application form, which is the first step of any visa application process. Try, if you will : it is not possible to request a “spouse of French citizen” long stay visa for an Algerian citizen, when it is possible for all other nationalities. The available visa categories simply do not allow it. Select, however “short stay” and the “spouse of French citizen” option appears for Algerian applicants.

Is this a software mistake ? A software mistake that only applies to Algerian citizens, because all other nationalities can benefit from a “spouse of French citizen” long stay visa ? Not at all. Apply for a “spouse of French citizen” visa for an Algerian passport holder and the Consulate will deliver a Schengen visa, that is a short stay visa. This is a unique, somewhat troubling, situation, in which the exception becomes the rule and where the Algerian spouse of French citizen, because he/she has the ability to do so, is in fact obligated to enter France under a status that does not match his/her actual situation. What is a secondary, unrecommended option for all other citizenships, is, in practice, an obligation for Algerian citizens.