Observation (CEACR) - adopted 1995, published 83rd ILC session (1996)

The Committee notes the detailed information provided in the Government's report and the observations made by the French Democratic Confederation of Labour (CFDT) and the General Confederation of Labour-Force Ouvrière (CGT-FO).

Article 6, paragraph 1(b), of the Convention (in conjunction with Article 11). The Committee notes the observations made by the CFDT and the CGT-FO concerning the amendments made to the Social Security Code by Act No. 93-1027 of 24 August 1993 respecting immigration controls and entry, reception and residence requirements for foreigners in France (sections 32 and 35), which establishes the obligation of lawful residence for entitlement to benefits, which has the effect of denying any entitlement to social security benefits in respect of a person who is not legally resident. The Committee also notes the Government's statement that none of the provisions of the above Act bring into question the principle of equality of treatment for foreigners who are residing or staying lawfully on French territory.

The Committee recalls that Article 11 of the Convention provides that, for the purpose of the provisions of this instrument, the term "migrant for employment" includes any person regularly admitted as a migrant for employment. It therefore appears that while, by virtue of these provisions of the Convention, it is incumbent upon a State party to guarantee to any person regularly admitted as a migrant for employment, treatment in respect of social security that is not less favourable than that which it applies to its own nationals, the same guarantee in respect of persons who are not lawfully in the country is not an obligation under the Convention. The Committee notes that, under section L 115.6 of the Social Security Code, as amended by the above law, the contributions of persons who have not been legally admitted under the legislation on the stay and the work of foreigners remain due to them.

The Committee suggests the Government to take into consideration the provisions of paragraph 34(1) of the Recommendation concerning Migrant Workers, 1975 (No. 151), under which a migrant worker who leaves the country of employment should be entitled, irrespective of the legality of his stay therein, to the reimbursement of any social security contributions which have not given rise to rights in his favour.

The Committee is addressing a request directly to the Government on other matters.