mardi 14 août 2007

The identity of foreigners and of French born abroad under the influence of the immigration policies.

In France, the identity of foreigners or French born abroad is often the subject of suspicion from French authorities. This suspicion is related to the hardening of the immigration policies these last years. From the experience I gathered as a lawyer, I will talk first about the issue of contending identity certificates by the French administration, then I will talk about contending the French citizenship of adults, and finally about contending the minority of alien isolated minors, particularly by the agents who have the task of protecting the infants.

Contending foreign identity certificates by the French administration

Before the law « Sarkozy » of 26 november 2003[1] about mastering the immigration, the article 47 of the Civil Code said :

« The copies or acts of identity are to be held true, even the acts issued in foreign countries, if they are written in the usual forms of that country. »

From this version of the law two principles rise[2] :

- The foreign act had to be accepted by French authorities unless they brought the proof of the lack of authenticity and as long as that proof was not brought, the act had all effects.

- The validity of the act depending on its form and content to the law of the foreign country where it has been written and not to French law, only the foreign authorities are competent to say if the act is valid[3].

The article 47 in its old version imposed then that the identity acts would be held true in France until proven false. Foreigners (or French born abroad) could then use the identity acts written in their country without having to proceed to their legalisation[4] if the act seemed authentic. If a doubt existed, the Public Ministry needed to introduce an action againts the foreigner for false official act and use of false act if the foreigner wanted to use an act that seemed false.

On instruction of the Ministry of Justice, the Secretaries of Tribunals of First Instance started to verify foreign identity acts with the help of the Ministry of Foreign Affairs. This procedure was illegal if the article 47 of the Civil Code was to be respected. The Interior Minister, Nicolas Sarkozy, passed a law the 26 november 2003 with a little modification that nobody really saw[5]. Today, if an administration thinks that the identity act is dubious, it has only to say so to the user. He has two months to ask the Public Ministry of Nantes to verify the authenticity of the act. The Public Ministry then has up to a year to verify it. Nevertheless, no sanction of this period of a year has been established. The lawmaker could have, for example, foresee that a person could use a contended act if the Public Ministry does not reply in the period of a year.

By modifying the article 47 of the Civil Code, the government and the legislator legalized a posteriori an illegal practice of the administration... resulting in a real headache for foreigners and French born abroad. That is for example the case of those who have to justify of the identity of their family to perceive family aids, or French born abroad who ask for the issue of a French citizenship certificate, and who will have to wait over a year so that the administration validates or no their identity acts.

Contending the French citizenship of adults born abroad

Several cases I had to defend to establish French Citizenship Certificate or to help people oppose to the administration their French citizenship will help understand, beyond the legal argumentation, how administrative decisions could turn to be an agression for personal identities and the feeling of being oneself.

The first case is about a woman aged 86 from Madagascar and Vietnam origin who had always been recognized as French citizen and had in the past several certificates of French citizenship.

She let the validity of her identity card expire. In that case, the Prefecture (Local State Administration) asks for a certificate of French citizenship to re-issue the identity card. Her daughter, French citizen, born in France, went to the Tribunal of First Instance to get the certificate producing the old identity card and the old certificates of French citizenship.

The secretary of the Tribunal contended the citizenship of this lady applying very complicated norms about French citizenship that have to be applied to persons from Madagascar origin. The secretary refused to deliver the certificate and gave notice of this to the Prefecture.

This lady found herself suddenly without any papers and in an illegal situation in France, where she was living for more than 50 years, although she had believed she was French since her birthday. I advised her daughter, who was mortified to have to explain to her mother that she was not French, to ask the Prefecture for a temporary permission of stay so that her mother could ask for the French citizenship since she lawfully believed and acted as a French citizen for more than 10 years (article 21-13 of the Civil Code).

The second case is about a young woman also from Madagascar, who had been adopted by her aunt. Her mother and her aunt were sisters and were both French citizens by filiation. The young woman was born in Madagascar. She had been adopted with the « simple » status by application of the Madagascar law, an adoption which has no legal consequence on the citizenship. Just before her majority, she decides to come live in France by her adoption mother side, her biological mother stayed in Madagascar. The young woman, who was a minor when she arrived in France, ask the secretary of the Tribunal of First Instance to get a certificate of French citizenship to be able to establish her identity card. The Secretary refuses saying that the « simple » adoption needed to be converted in « full » adoption so that her French citizenship could be recognized whereas, being born from a biological French mother, and adopted by a French citizen, she could only be French. She introduces an action before the Tribunal of Great Instance so that her “simple” adoption is converted into a “full” adoption. Nevertheless, because the legal dispositions about French citizenship stipulate that the establishment of filiation only has effect on the citizenship during the minority of a person[6], since the decision converting the simple adoption into a full adoption was issued after the majority it did not have any effect on her citizenship.

Holding her full adoption decision, the young woman asks again the Secretary of the Tribunal of First Instance for a certificate of citizenship, and the Secretary refuses a second time arguing that her filiation was established after her majority, although her biological and adoptive mothers were both French citizens… Again, the Tribunal of Great Instance has to be seized in order to declare that she was French since her birth notwithstanding the adoption that took place in Madagascar and in France. She stayed in France without papers and in an illegal status during the three firsts years that followed her arrival in France.

Another case: a young woman from Tunisia whose father is French. She is hence a French citizen by filiation. She had held a former certificate of French citizenship, but the Secretary of the Tribunal of First Instance refused to issue a new one, arguing that the marriage certificate (established in Tunisia) of her parents was dubious. Nevertheless, her birth certificate (Tunisian also) was not contended and it demonstrated that her father was the one who declared her birth so her filiation was doubtless, and her citizenship could not be contended either.

In another case, the mother of a young woman from Congo origin married a French citizen and acquired the French citizenship by declaration when the young woman was six years old. My client entered the French territory a minor. As soon as she got in France, her mother asked for a certificate of French citizenship. The secretary of the Tribunal of First Instance of Toulouse asked the Ministry of Justice for approval. In the meanwhile, the young woman was given temporary residence and had no answer from the Secretary of the Tribunal.

Five years after her arrival, as she renewed her residence permit, the Prefecture told her that she probably was French, and so the young woman ask the Secretary of the Tribunal to issue a certificate of French citizenship. The Secretary answered that her file opened by her mother at her arrival was still being investigated and without instructions from the Ministry of Justice no certificate could be issued for her. After one year, not receiving any answer, she asked again the Secretary who answered that he still was waiting for an answer from the Ministry of Justice about an investigation of the authenticity of her identity acts, investigation that was started 4 years after her arrival to France. Seven years after her arrival, this young woman had no option but to seize the Tribunal of Great Instance so that her citizenship could be recognized.

Nevertheless, during the procedure, the administration produced an anonymous form that was supposed to be signed by an officer of the registry of Brazzaville in Congo in 2003 by request of the French embassy, where it was said that the birth certificate of the young woman was « non existent ». It is necessary to know that after the civil war that took place in December 1998, most of the civil registry was destroyed in Brazzaville. The young woman asked the Public Ministry to reissue her birth certificate since it appeared that her birth certificate registry had been destroyed. To the request of the Public Ministry of the Court of Appeals of Brazzaville, her birth certificate was reissued in 2006. The Tribunal found, applying a jurisprudence from the Cour de Cassation (highest civil court in France), that since that reconstitution had been made after the majority of the young woman, her filiation was not established at the moment of her mother’s declaration for French citizenship, she could not take advantage of the collective effect of that declaration.

A last example shows that another kind of suspicion exists: the suspicion about the reality of belonging to the French community towards French citizens born abroad.

In a case about the citizenship of a minor from Ivorian origin who was taken in charge by his uncle, the latter having acquired the French citizenship by naturalisation[7], the Public Ministry produced two jurisprudences that rejected the citizenship application because they lacked the proof of enough integration since those minors had been taken in charge by French citizens who were too « recent » citizens, or too « close » to the minor.

The Court of Appeals of Paris found the 29 January 2004 that, even if a minor from Ivory origin completed all the legal conditions to obtain the French citizenship, he had to demonstrate a real assimilation to the French community[8]. The Court held that this minor who had been taken in charge by a member of his family, who had acquired the French citizenship by naturalisation, could not justify having enough assimilation since his relative was French only since 9 months.

The Tribunal of Great Instance of Nîmes, found the 3 October 2001 that a minor from Morocco origin lacked a sufficient degree of assimilation because he had been taken in charge by his sister who only held the French citizenship by marriage, and because of this, the minor was not sufficiently detached of his family to be considered that he deserved the French citizenship.

In those decisions, the Tribunals built a particular analysis of what is to be French: in spite of the fact that the adults who had taken in charge those minors were French, their alien origin put in doubt their « Frenchness » and could not allow to demonstrate that the minors who had been taken in charge were raised in an environment « French » enough to ensure their « integration ». Nevertheless, the law has established objective conditions that determine if a person brings enough proof of his pertaining to the French nation when the State gives the naturalisation to a foreign citizen, or when a foreign citizen acquires the French citizenship by declaration. That those Tribunals decided to appreciate of the good or bad quality of the « Frenchness » of French citizens born abroad is questionable. Is it necessary to consider that in order to be a “good” French, a person has to abandon his family, his culture, cut his roots, change his alimentation, convert to a particular religion?

Contending the age of isolated minors

The law

Alien isolated minors are beneficiaries of two principal measures of protection: they could be taken in charge by the Social Aid to Infants (financed by the departments) in accordance with article 375 of the Civil Code[9], and they could apply for French citizenship. To begin, I will recall the recent historical evolution of the French citizenship towards isolated minors.

Article 21-12 of the Civil Code in its version resulting from the law of 9 January 1973 said:

Is entitled, in the same conditions [than those of the child object of a “simple” adoption], to claim the French citizenship:

1 – The child that has been taken in charge in France and raised by a French
citizen or that has been taken in charge by the social services.

In 1973, the lawmaker specifically suppressed the condition of length of placement of 5 years for the children placed with the social services, but that condition was kept for the non isolated child. The spirit of the law of 9 January 1973 dealing with the French citizenship that resulted in the new version of article 21-12 was expressed by the reporter of the National Assembly Law Commission during the parliament debates that took place the 10 October 1972:

« France, who has forever known how to be an immigration land, affirming its genius in searching foreigners to marry our citizenship, has to follow the same generous spirit of complete assimilation of those who come to our soil to bring their support to the economical renovation enterprise that we have started.

It would be against the tradition, as well as against its role in the world, to restrain the possibilities offered to foreigner to become part of our nation; it would be against our deep liberal ideas to disappoint the hopes of all the people that, working in France, are looking for the best possible assimilation.

The acquisition of the French citizenship can be granted by simple declaration in order to make it easier: for example so that the husband of a French woman if the couple establishes its home in France; the same purpose is sought in several measures [...] related to isolated children. »

More specifically, about the modifications of article 55 of the Code of French Citizenship which became article 21-12 of the Civil Code, the reporter of the National Assembly Law Commission in its report n° 2545 says:

« The law project retakes in a first paragraph the present law dispositions about the isolated children taken in charge and raised in France whereas by a French citizen, or by the social services: in these two cases the presumption of assimilation can be applied for those children without further ado. »

And the reporter of the Senate Law Commission ads:

« This article 55 creates an exception in favour of the child of foreign parents who is not born in France but who has been taken in charge and raised in our country. [...] But, when it applies to a child taken in charge and raised in France, the presumption of assimilation is so important that it appeared more equitable to give to this child, until its majority, the right to claim the French citizenship. »

Since 1973, in spite of several reforms of the citizenship law, the lawmaker had never reinstalled that condition of period of assimilation. This was the consequence of the clear will of ensuring a stronger protection for isolated minors, making possible for them to claim the French citizenship notwithstanding their supposed lack of integration to the French society. It is only the 26 November 2003, thirty years after this legislative reform, that France, in the name of the struggle against illegal immigration, decided in the end to modify article 21-12 of the Civil Code.

The new version re-established the period of « integration »[10] of three years prior to majority, which makes mandatory to a child to be the object of a measure of judicial protection (placement by the Infants Judge in the hands of the social services) before being 15 years old in order to be able to claim the French citizenship, whereas the reality shows that isolated minors arrive to France between 16 and 18 years old.

The field practice

It is undisputable that some foreigners tried to unlawfully take advantage of this protection when their majority was blatant. The only condition required was indeed to demonstrate the minority and the fact of being the object of a judicial protection measure or the fact of having been taken care by a French citizen. Nevertheless, the multiplication of international conflicts and misery has lead parents to make their children flee notwithstanding the costs, in particular minors from Central Africa and Eastern Europe. That is why, since the end of the 90’s, a serious increase of “non-accompanied” minors (that was how they were referred back then) arriving to France has been reported[11]. Some departments, including the Haute-Garonne, knew an « explosion » of requests of judicial measures of protection. This created a budget tension that led the social services to contend the age of isolated minors and to put in doubt their identity papers. The bill for the departments has been evaluated in 74 to 120 million euros each year[12].

Nevertheless, this immigration does not result in a flood of young foreigners. The number of young ones that were presented to social services in 49 departments between 1999 and 2001 is estimated to 3.568, and even if the numbers are not certain, it is accepted that today they are no more than 5.000 in our territory[13]. Hence, contending their minority does not obey fundamentally to a budget worry.

To fight against the development of networks that organize the travel of minors to get to France because of the “automatic French citizenship”, French authorities have created a legal wall by the introduction of a period of integration of 3 years. This measure seems easier to enforce than the implementation of an efficient struggle against the networks who take an undisputable economical benefit from this human traffic[14].

Contending the age of minors and bone expertises

The reaction to the increase of isolated minors resulted in abuses that violate the dignity of the minor and the international commitments of France, in particular in regard to the International convention of the Infant Rights ratified in 1990. These abuses consist in medical expertises aiming to establish the age of the minors, in systematic suspicion of identity papers and sometimes in violation of French law.[15]

In the light of the old version of article 47 of the Civil Code which recognized the validity of foreign identity papers until proven false, the leading jurisprudence rejected the contention of the identity of isolated minors. But when they did not have identity papers, the Tribunals ordered medical expertises in order to establish the age of minors. The problem lies in the fact that these expertises are founded essentially on radiographies of bones in order to determine their maturity, based on samples that had been taken by Greulich and Pyle in the 30’s on a white North-American population.

The scientific validity of those methods was successfully contended since Greulich and Pyle tables were supposed to determine if a white adolescent presented a delay in bone growing, but absolutely not to determine his age. Differences of more than two years could exist between the real age of a minor and the bone maturity based on those tables[16]. The jurisprudence of European countries about the use of bone radiographies to evaluate the age of young adolescents rejects the results of those expertises because they are not reliable. The 28 December 1998, the Conseil d’Etat of Belgium rejected the conclusions of a bone expertise because « the method used could not be considered, at a first look, as reliable or without any risk of error. »[17].

The 12 September 2000[18], the Asylum Appeal Commission of Switzerland (CRA), reached the conclusion that:

1) In order to evaluate the real age of a person, it is not possible to draw absolute conclusions from radiographies from the hand bones, the bone age being variable from one person to another, in reason particularly of his race or gender (consid. 7)

2) A difference of two years and a half to three years between the bone age and the real age could be considered to be the norm (consid. 7c)

3) When the declared age by the person is within the standard limits admitted in bone expertises, the ODR (Refugee Federal Office) cannot take base in a radiology examination to refuse the entry to the territory for asylum purposes, because of a supposed false identity (consid. 8).

This jurisprudence is also taken by French jurisdictions.

Let’s look at the way in which took place in Toulouse the contending of the minority of a young Ivorian. He had no identity papers, but was nevertheless placed under judicial protection by the Infants Judge. His lawyer succeeded to convince the Tribunal of Great Instance to reject a bone expertise as the only way to determine his age, because of the uncertainty and unreliability of the bone expertise technique to evaluate the age of a person. The Tribunal ordered a thorough medical expertise that included nonetheless a bone expertise. This young man had to endure a medical examination by an expert who described his pilosity, as well as the size and weight of his testicles, elements the expert found necessary to determine the puberty of the young man. Without even conclude on his findings about this examination, the expert said that the young man was major on the sole base of the bone expertise. It’s easy to imagine the incomprehension and humiliation that this young man felt to see himself measured and weighted in his most intimate being to finally finish to be declared major on the sole basis of radiographies of his wrists.

Another case about an isolated minor girl from Congo who found herself in France without any adult that could take the responsibility of the parental authority. She was presented by the emergency center of the social services who normally should have seized immediately the Infants Judge in regard of article 375 of the Civil Code. Nevertheless, on the instructions of their hierarchy, the young girl was oriented to an association that helps immigrants. The president of this association put her in contact with a family from the African community who finally took her in charge. Thus, by violating the legal dispositions aimed to ensure the protection that has to be given to the minors and without any judicial intervention, the young girl was placed by the Department to total strangers without any guarantee or responsibility.

A month and a half later, the African family presented the young girl again to the Emergency Center of the social services explaining that they could not keep her because their home was too cramped. The Emercency Center asked again the hierarchy for instructions but specifically stating that « a measure of social protection is justified for this isolated minor without any legal responsible in the territory ».

Without notifying the minor to the Infants Judge, the social services seized the public ministry so that an investigation should be ordered about the reality of her age and the authenticity of her birth certificate and even asked for instructions to the public ministry about whether take her in charge or no ! It is then the Minors Brigade of the Judicial Police that finally asked the Infants Judge to order a measure of provisional protection until the results of the investigation were known.

A provisory protection was then ordered, but a week after, on the basis of the bone expertise requested by the Department and without meeting the minor, the Infants Judge lifted the protection since the expertise concluded to the majority of the young girl.

The young woman found herself between majors in an emergency shelter where she could only stay during the night. The rest of the time, she was alone, and vulnerable to the dangers of her isolation. Because of this, the social workers of the shelter seized again the Infants Judge because the shelter had to close for the summer and the young girl could not be let alone. A new measure of judicial protection was ordered, because the Judge found that the bone expertise could not bring the absolute certainty because of the variability of the data on each individual, and because differences of appreciation could exist between experts: only a range of age could be really determined with an amplitude that the doctors place between 18 months to 2 years.

The Infants Judge explicitly said:

« Being this a matter of public order, it is out of question to take the risk of not granting a minor the legal protection. »

The Direction of Department Solidarity, the authority that governs the social services for minors, appealed the decision, but the Appeals Court confirmed the protection measure.

Maybe the opinion of the National Consultative Comity of Ethic, dated 23 June 2005, that wonders about the inner legitimacy of medical expertises to determine the age of minors, could have a weight on the social actors that have to intervene in this matter. This opinion is hereafter annexed. It indicates new leads on the way to determine an age that could be better founded on multiple social or psycho-social criteria, better than in sole biological or physiological terms.

The international commitments of France towards foreign isolated minors

France ratified the 7 August 1990 the International convention on children rights, treaty that compels the country to respect and to make respect the rights of foreign isolated minors. Article 8 is particularly important:

Article 8

The States commit themselves to respect the right of the child to preserve his identity, including his citizenship, his name and his family relations, that are recognized by the law, without illegal intromission.

This obligations befall on municipalities, departments (under which the social services to minors intervene) as well as on the jurisdictions that have to decide on cases related to foreing isolated minors. The persistence to doubt his identity creates a damage on the isolated minor from the moment he is deprived of this rights and the protection that he needs.

The violation of international obligations by France resulted in a warning by the Children Rights Comity under the United Nations High Commissioner for Human Rights who, the 30 June 2004, recommended to France to adopt other methods than bone radiography expertises to determine the age of isolate foreign minors because of the uncertainty of those methods about a point so serious that is related to the very identity of minors.[19]

Some jurists propose that the Judge should always be guided first by the protection obligation:

« Since the aim is to protect it is necessary to use flexible means and to decide a priori that the young “isolated” is minor. Is this a priori that should be the priority and not the obsession of the irregular immigration. (…) If someone says that he is minor and this affirmation does not seem purely fantasy, he has to benefit of the protection and be presumed minor. »[20]

In matters of identity, the proof is free. With the protection aim as a priority, the declarations of minors about their identity should be considered true until the contrary is proven. Article 46 of the Civil Code says:

« When no registry exists, or if the registry is lost, the proof will be received by acts or witnesses; in this case, marriages, births and deaths, could be proved with the registry from fathers and mothers deceased or by witnesses. »


It is a paradox, but a good number of educators that have the responsibility of protecting isolated minors ask themselves the question of the legitimacy of the request for French citizenship in favour of their protégés. Under the pretext of preserving the identity and dignity of these minors, they prefer taking the risk that the minors found themselves on an illegal situation when at their majority than make them benefit of the French citizenship which we can thinks is the best possible protection. A lot of young people who now have no papers could thus have taken advantage of the possibility of become French citizens, but were deprived of this chance by the “ethical wonderings” of their educators.

Beyond the mechanisms of protection for isolated minors, today it is the protection of young majors that has become the main worry of parent’s associations and educator. They are concerned about the fate of those minors who could not benefit from the French citizenship and who, at 18, found themselves in a dire situation, without papers and deportable. The very economy of the new legal dispositions is matter of interrogation. These young people received a costly education for the departments, and they are ready to enter the work market for jobs that in general are in tension (construction, mechanics, services etc…). And nevertheless, in spite of the public investment that was granted to them, the State has not foreseen any legal mechanism that could allow them to stay in France, but only isolated legalisations[21].

Very often the sole fact of being born abroad gives birth immediately to suspicion from the French authorities about the legitimacy of the French citizenship of a person and of the identity papers issued abroad. This suspicion is often illegal and puts foreigners and French born abroad in situations that if not right way unfair are at the very least kafkaian.

As the Court of Appeals of Toulouse found the 7 June 2005:

« The nation was defined by Batifol as a community of life that supposes the will to live and last together. This will can express itself in the cases open by law among which the isolated minor taken in charge by the State is included by subscribing a declaration of citizenship. If made in the legal forms, the citizenship should then be registered by the administration or the competent judge, under the prevention of respecting the conditions expressly defined by law. »

By multiplying the opportunities of suspecting the identity of foreigners and French born abroad, does France really ensure the « republican integration »[22] of those persons? Doesn’t she give birth to resentment and rejection of republican values?


Travaux parlementaires sur la loi du 9 janvier 1973 :

Rapport n°2545 fait au nom de la Commission des Lois de l’Assemblée Nationale par Monsieur Jean FOYER

Rapport n°302 fait au nom de la Commission des Lois du Sénat par Monsieur GEOFFROY

Journal Officiel des débats de l’Assemblée Nationale – 1ère séance du 10 octobre 1972 p 4006

DIAMANT-BERGER Odile, 2000, « Une méthode qui n’a jamais été satisfaisante… entretien avec le Professeur Odile DIAMANT-BERGER, expert agréée par la Cour de Cassation et responsable des Urgences Médico-Judiciaires de l’Hôtel Dieu », Justice, n°166 - novembre 2000.

ÉTIEMBLE Angélina, 2002, « Les mineurs isolés étrangers en France – Évaluation quantitative de la population accueillie à l’Aide Sociale à l’Enfance, les termes de l’accueil et de la prise en charge. Étude effectuée pour le compte de la Direction de la Population et des Migrations », Migrations Études, n°109 – septembre octobre 2002,

—, 2004, « Quelle protection pour les mineurs isolés en France ? », Hommes & Migrations, n°1251, septembre octobre 2004 -

FERRÉ Nathalie, 2002, « La détermination de la minorité », Plein Droit, n°52, mars 2002.

LOCHAK Danièle, 2004, « L'intégration, alibi de la précarisation », Plein Droit, n°59-60, mars 2004 -

ROQUES Laurence, 2003, « Le Mineur, l’Aide sociale à l’enfance et la nationalité française », XIe colloque de Droit des Étrangers du Syndicat des Avocats de France « Le mineur étranger en exil », pp. 45-56


Opinion of the National Consultative Comity on Ethic, 23 June 2005

« The National Consultative Comity on Ethic is well aware of the importance of the question that has been submitted and in particular of the fact that the status of the minor is a protected status and that the protection that it entails could encourage a certain type of criminality of children that become the instruments of adults. But the difficulties of evaluating the real age should not entail the loss of the protection for a minor. If the justice could not take cover behind medicine, it has to assume its responsibility of respecting first the dignity of persons suspected of infractions and particularly in that moment in life where there are no real frontiers than those established by a birth date.

This temptation of the justice to delegate to medicine the task of setting a biological age that will become the real age, has another consequence: to forget how a child or an adolescent has been deprived of liberty. The principal concern should not be to set an age, but the social conditions more or less dramatic that led to that situation. The objective is not to set or not free in function of the age. It is really of granting the help needed by those children or adolescents that sometimes are abused, even if they have not conscience of it, by adults. The danger lies in the fact that the parameters of radiography and examination of puberty signs don’t solve simply a situation that by essence is always complicated. The way to deal with this situation should be to protect rather than to detect. The medical body, in this field, cannot exonerate itself from its responsibilities, but keep always in mind that its function is first to heal rather than to give an expert opinion.

It is very worrying, in a time where a medicine “founded on proofs” is developing, that examinations whose meaning and validity in regard to the very aim of the request to expertise have not been evaluated for more than 50 years, are held to judicial purposes. Could it be possible to imagine, developing research, to be able to find more reliable methods? Probably not. The human heterogeneity is such, in time and space, that it is vain to think that soon it will be possible to determine, without knowing a birth date, the exact chronological age, at a given moment, of a person.

The age of an adolescent could never be encapsulated in an image, a measure or a manifestation of puberty development. On the other hand, it is possible to evaluate more easily the status of a minor crossing psychological, social and cultural data, that could justify that if there should be an expertise, it should be collective and pluri-disciplinary. The medical body cannot exclude itself from its responsibilities, but should intervene with the utmost discernment taking in account the very complexity of the situation. It is precisely this complexity that makes more and more difficult, in the absence of identifying data, the simple setting of a purely juridical age. The difficulty lies in the fact that law has to respect fundamental rights and that the value of age is a very fragile criteria to exercice those rights.

Finally, it is difficult to see how in a moment of intense migration the same criteria should not apply in all of Europe. Indeed, several European countries face the same difficult situation, which implies that a solution should be find at an European level with a harmonisation of criteria that should be used. The harmonisation, because it concerns the protection of human rights, has very important ethical implications..

Thus, to answer to the questions submitted, the comity confirms that the medical techniques used today to set a chronological age are not adapted. It does not condemn a priori their use, but suggests that the results should be questioned so that the status of a minor could not depend alone on those tests. It is not so much the danger of those tests, that seems unfounded, but their use in a climate that is perceived as inquisitorial, in detriment of psychosocial aid that is always necessary in such a context. What is important is to protect the children, not to discriminate them; which reinforces the duty of listening of the medical body, even if it is asked to intervene for expertise purposes. »

[1] Loi nº 2003-1119 du 26 novembre 2003 - Journal Officiel du 27 novembre 2003.

[2] Roques 2003 : 48

[3] On this point refer to articles 486 and following of the General Instruction on Identity :

[4] Procedure consisting in authentifiying an official act by the authorities of the country in which this act has been delivered.

[5] The new version of article 47 says :

Any identity act of French or foreigners written in a foreign country with the usual forms of that coutnry is to be held true, unless if other acts or documents, external data or elements from the act itself establish that the act is irregular, false, or facts declared are not real.

If in doubt, the administration, seized of an application for establishment, transcription or deliverance of an act or a title, stops the application and informs the applicant that he can, in a two months period, ask the Public Minsitry of Nantes to verify the authenticity of the act.

[6] Article 20-1 of the Civil Code says : « The filiation of an infant only has effect on his citizenship if established during his minority ».

[7] The conditions to give the French citizenship to isolated minors taken in charge by French citizens were the same as those of isolated minors taken in charge by the Social Services, before the Sarkozy law of 26 November 2003, that is without a period of stay. Today, the period of stay for “integration” purposes is of 5 years for minors taken in charge by French citizens, and of 3 years for those taken in charge by the Social Services.

[8] It is necessary to remember that before the law of 26 November 2003, there was absolutely no condition of integration or assimilation that could be opposed to isolated minors.

[9] Article 375: If the health, security or morality of a non emancipated minor are in danger, or if the conditions of his education are seriously compromised, measures of educative assistance could be ordered by justice at the request of the father and mother together, or one of them, of the person or service that has taken the minor in charge or the tutor, of the minor himself or of the public ministry. Exceptionally, the judge can seize himself.

[10] Operation by which an individual or a group incorporates to a collectivity, to a social environment (opposed to segregation), acculturation, assimilation, fusion, incorporation, insertion (cf. Le Petit Robert).

[11] About the different ways in which the isolated minors were called by the social assistants and the fact that these assistants contended the fact that foreign isolated minors belonged to the category of « infants in danger » see Étiemble 2004 et 2002.

[12] « Clandestine minors could be legalized at 18 years old » - Le Figaro of 31 March 2005.

[13] Étiemble 2004 : 16.

[14] For example, I know the case of a young Angolan who was a war orphan and was “saved” from a seclusion camp for young errants in the North of Angola by a network of diamond smugglers. The smugglers bought him a fake passport and made him travel to France with a stuffed bear which belly was full of diamonds. Arriving to Paris, he was put in a train to Toulouse and abandoned, not without having been first deprived of his “toy”.

[15] In order to prevent the granting of French citizenship to a young alien, a district attorney went even up to affirm that when the law says “child”, it is understood that it refers to a minor aged of less than 16 years, whereas article 388 of the Civil Code says: « The minor is the individual of one or the other gender who has not reached the age of 18 years. ».

[16] Diamant-Berger 2000.

[17] Conseil d’État de Belgique, arrêt n°77-847 du 28 décembre 1998.



[20] cf Nathalie Ferré 2002

[21] With the exception of minors taken in charge by social services before the age of 16 years (article L.313-11 2°bis of the Code of entry and stay of foreigner and of the right of asylum) and « with the condition of the reality and seriousness of the education, of the nature of the links with the family that stayed in the country of origin and of the opinion of the structure of reception on the insertion of that foreigner in the French society » (modification introduced by the law of the 24 July 2006).

[22] Lochak 2004.

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