Under the laws in force in France specific administrative bodies, such as the OMI and the DDTPEF (Direction Departmental du Travail, e l’Emploi et de la Formaiton professionelle) are legitimized to take decision about entry and employment of non-EU workers into France. The judicial bodies are responsible for hearing the appeals against the decision of such administrative bodies when access is denied (for instance if no work permit is issued). Appeals have to be addressed to the ordinary bodies administering administrative justice in France, i.e. administrative courts (tribunaux adminsitratifs) and the State Council (Conseil d’Etat). The latter is most notably involved in case of visa refusal and other issues of large scale relevance.

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Specialized bodies are mandated to monitor and investigate specific instances which closely relate to migration. In particular, special police bodies are instituted, which are directly dependent from the Ministry for Home Affairs and work in strict cooperation with the Work Inspectors. A Special body is established within the Ministry for Social Affairs to fight against illegal admission to work and illegal employment. Such bodies have a mandate to investigate and instruct proceedings in cases of fraud and illegal employment of third-country nationals, according to the norms included in the Code du Travail as well as in other laws, including those implementing European Directives and others standards.

Routes to judicial recourse against some of the most current and invasive phenomena suffered by migrants in France, especially discrimination are hampered by the usual difficulties of proving discrimination, despite the comprehensive legislation existing on discrimination including civil, administrative and criminal legislation. The burden of proof remains in many cases on the victim to prove discrimination (with the exception of the rules against discrimination introduced in the laws of 2000 on family reunification and citizenship). It is expected that with the new implementation laws of the Equality Directives (Directive 43 and 78/2000) the burden of proof will be reversed at least in all civil and administrative matters.

Also, for establishing a criminal case, a short time limit is provided for in criminal procedure of three months since the discrimination event happened. Compensation is provided for in cases of discrimination, but little jurisprudence exists on such cases. Compensation for dismissal on grounds of discrimination is subjected (like in other cases) to a ceiling which depends on factors such as the age of the company etc.

On publications inciting to racial hatred there have been some pivotal decisions by the Courts, some of them upheld by the Court of Appeal. For instance, in 2001 the Paris Court of Appeal sentenced the authors of an electoral leaflet for the offence of incitement to racial hatred. The leaflet portrayed the whole of French civilization and customs as threatened by people which could be termed under the word “immigration”, with particular reference to Africans and North Africans, who were, in the leaflet, not willing to integrate in French society.

Unions, provided they have a written agreement by those concerned, may take legal action on behalf of a worker of a company who claims discrimination on the grounds of sex or family situation (Labor Code art L123-6). Non-profit organizations which have been legally established for at least five years can initiate legal action on behalf of a victim of discrimination and constitute themselves as civil claimants, provided that in their statutes work on behalf of victims of discrimination is one of their corporate aims (Art. 2-1 to 2-14 Criminal procedure Code)

The Departmental Commissions on Access to Citizenship have a role in alerting prosecutors about incidents of discrimination, mainly racial in order for criminal action to be initiated. This is particularly important a victims may be reluctant to come forward and approach prosecutors directly.

Legal aid is granted for civil and criminal trials to cover the costs of legal action, including bailiff and lawyers fees, in full or in part. In certain circumstances, a foreigner who does not usually reside on French territory may also benefit from legal aid for an action taken before the French Courts.

Analysis provided by: Antonella C. Attardo PhD (History of Law), Italy.

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