Article  |  Volume 10

The Veil That Covered France's Eye: The Right to Freedom of Religion and Equal Treatment in Immigration and Naturalization Proceedings

by Kendal Davis
In June 2008, France’s highest administrative court upheld a decision to deny citizenship to a Muslim woman because, essentially, she was ‘not French enough.’ This decision incited both praise and outrage in the international human rights arena regarding considerations such as the right to freedom of religion, gender equality, and citizenship. This Note examines relevant French domestic law and international human rights instruments, and argues that while immigration and naturalization decisions remain an exercise of broad sovereign powers, the emerging human rights norm to be free from discrimination should apply in naturalization proceedings. Furthermore, despite judicial deference and flexibility to party-states, the Conseil d’E´tat’s Silmi decision violated this norm. Part II provides a legal framework for analyzing the Silmi decision in light of the emerging human rights norm to be free from discrimination in matters of immigration and naturalization. This section examines French constitutional law, including the significant absence of the plenary power in immigration law in French jurisprudence. Part III reviews the historical background of religion in France, including the country’s history of separation of church and state, Islam in France, and the recent controversy surrounding women wearing the headscarf in schools. Part IV discusses freedom of religion generally, including the difficulty of defining religion itself. Parts V and VI examine freedom of religion and freedom to manifest religion under international law, respectively, including relevant ECHR precedent. Part VII discusses relevant nonbinding international instruments. Finally, Part VIII analyzes the Silmi decision, concluding that it violates the emerging human rights norm to be free from discrimination, including on religious grounds, in matters of immigration and naturalization.
10 Nev. L. J. 732 (2010)