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Synthesis

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INDIVIDUAL LIBERTIES OF FOREIGNERS IN TUNISIAThe Metics of the Republic

The present study proposes to analyse, under the prism of fundamental rights, the

situation of foreigners in Tunisia.

The Tunisian Constitution of 2014 has not made a special place for foreigners, but

it has recognized the fundamental rights and freedoms of each person, regardless

of nationality. Thus, the right to life, the right to dignity and the right to respect for

private life are guaranteed to everyone regardless of their national affiliation. «The

freedoms of opinion, thought, expression, information and publication» are also

protected regardless of any condition of citizenship or nationality.

Tunisia has also ratified numerous universal or regional international conventions

that protect foreigners. For example, Tunisia acceded to the Geneva Convention of

28 July 1951 on the status of refugees. This Convention defines the refugee and

gives him a right to asylum.

Other international human rights instruments protect the foreigner. Thus, Article

2 of the Covenant on Civil and Political Rights lays down the principle of non-

discrimination. Its Article 7 of prohibits torture and cruel, inhuman or degrading

treatment or punishment. Article 12 protects the freedom to leave any country, and

the right to enter one’s own country.

The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment

or Punishment of 10 December 1984 expands protection against torture. The

Convention on the Elimination of All Forms of Discrimination against Women of

18 December 1979 provides special protection to women by prohibiting all forms

of discrimination against them. The Convention on the Rights of the Child of 20

November 1989 also contains relevant provisions on the protection of the child.

The Protocol against illicit traffic of migrants by land, air and sea, additional to the

United Nations Convention against Transnational Organized Crime of 15 November

2000, combats the smuggling of migrants and especially smuggling networks.

Since the promulgation of the Constitution of 2014, several laws have been adopted

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Individual liberties of foreigners in Tunisia: The Metics of the Republic

guaranteeing a special protection of certain categories of vulnerable persons, in

particular, the law of August 3rd, 2016 on the fight against human trafficking, the

law of August 11th, 2017, relating to the elimination of violence against women and

the law of October 23rd, 2018 on the elimination of all forms of racial discrimination.

However, the Tunisian law of foreigners seems out of step with the stated standards.

The examination of Tunisian law shows that the foreigner is subject to discriminatory

treatment. Tunisian law appears as a severe Law, intolerant towards the foreigner.

Several rules put the foreigner in a position of inferiority compared to nationals.

The importance of this observation is correlated with the number of foreigners

residing in Tunisia which, according to the latest statistics of the National Institute

of Statistics in 2014, amounts to 53.490 individuals of several nationalities.

This study, shared into three parts, analyses the provisions that place this growing

number of foreigners in a situation of inferiority.

Part I: The strict control imposed on the foreigner when crossing the border

The first part of the study focuses on the strict control imposed on the foreigner

when crossing the border when entering or leaving the Tunisian territory.

The entry of the foreigner on the Tunisian territory remains relatively easy; on

the other hand leaving the Tunisian territory seems more problematic. The visa

exemption facilitates the entry of a large number of foreign citizens into Tunisian

territory, which comes under the principle of freedom of movement. It should be

noted, however, that the visa remains imposed on the citizens of several Arab

countries. This exclusion is explained either for security reasons or by application

of the rule of reciprocity. Indeed, security reasons explain the maintenance of the

entry visa for Syrian and Iraqi citizens. Lebanese or Egyptians, for their part, are

obliged to obtain an entry visa, by application of the rule of reciprocity, since their

countries impose the same on Tunisians.

The right to leave Tunisian territory is in reality severely limited by the obligation

to comply with the requirement of an entry visa, an obligation imposed by the

countries of the North, particularly the countries of the European Union, on the

countries of the South. This obligation results from the pressure exerted on Tunisia

to limit migratory flows towards Europe.

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The non-compliance with the rules on crossing the border exposes the foreigner

to a set of sanctions. These sanctions apply especially to migrants who go illegally

to Europe. In case of irregular entry or exit, the foreigner is exposed to penal

sanctions provided for by articles 23 and 24 of the law of March 8th, 1968 relating to

the condition of foreigners in Tunisia. In addition, the foreigner may also be subject

to expulsion under conditions that openly violate human rights.

Migrants who reach the Italian coast risk re-admission in accordance with the

readmission agreements signed with Italy. These agreements concern a very large

number of irregular migrants, since irregular immigration from Tunisia is mainly

directed towards Italy. Then, these agreements allow not only readmitting the

nationals, but also the foreigners who have passed through Tunisia to go to Italy.

Foreigners in an irregular situation, with regard to the rules on border’s crossing,

are also exposed to confinement in detention camps. The situation of foreigners

trapped in detention camps is particularly worrying as it undermines human dignity.

There are several detention centres in Tunisia, including «El Wardiya Reception and

Referral Centre» and «Ben Guerdane Detention Centre» in Medenine. The latter

was recently closed by ministerial decision in March 2019 because of the «inhuman

conditions» in which the migrants were.

The crossing of the border by the migrant has been subject to increased control

since the enactment of the law of 3 February 2004 amending and supplementing

the law of 14 May 1975 on passports and travel documents. Promising in a timid

way as a simple modification of the law of May 14th, 1975, the law of February 3rd,

2004 institutes in fact a penal legislation specific to the aid to the irregular and

derogatory to the common rightmigrations.

The purpose of this law was to fight smuggling networks, but the Tunisian legislator

went very far in the repression. In attempting to combat the smugglers and their

immoral practices, he has at the same time criminalized any form of assistance

or support that might be provided to the irregular migrant, and imposed a duty to

report. The law could thus apply to voluntary or charitable assistance that could be

provided to the irregular migrant. After more than fifteen years of application of

this law, the assessment of its effectiveness seems to be mitigated.

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Part II: The precarious installation of the foreigner in Tunisia

The second part of the study focuses on the difficulties that the foreigner might

encounter in order to settle in Tunisia. The stay of the foreigner is subject to the

requirement of obtaining a residence visa and a residence permit.

The rules applicable to the granting of visas and residence permits are extremely

restrictive and place the foreigner in a precarious situation.

The rules thus set have two major flaws. First of all, they are very restrictive and

only allow the granting of the ordinary residence permit to a very limited number of

foreigners wishing to settle in Tunisia. Then, they are discriminatory. Indeed, only

the foreign wives married to Tunisians can obtain the ordinary residence permit.

This right is not recognized to the foreign spouse of the Tunisian woman.

In addition to discriminating between foreigners, this rule also discriminates

between Tunisians and reflects the idea that Tunisian women are not «integrating»

their spouses into society. The attraction of the foreigner to Tunisian society is thus

easier through men than through women.

Moreover, combined with the heaviness of the administration, these rules put in

difficulty, in a particular way, the students coming from sub-Saharan Africa. These

are often found in an irregular situation under Tunisian law. In this sense, students

are very often in an irregular situation before being able to proceed with the renewal

of their residence permits.

On the other hand, the right of asylum has not yet been introduced into Tunisian

law, despite the enshrinement of the Constitution of a right to asylum and the

ratification of Tunisia of several international conventions in the matter.

Indeed, Article 26 of the Constitution guarantees political asylum and prohibits the

extradition of political refugees. Tunisia has also been a signatory since 1967 of

the Geneva Convention of 28 July 1951 on the status of refugees, the Protocol of

31 January 1967 relating to the status of refugees, and the OAU Convention of 10

October 1969 governing the specific aspects of refugee problems in Africa.

Currently, refugee status can only be granted by UNHCR.

UNHCR works closely with the Tunisian Red Crescent. Upon arrival of asylum

seekers, the Tunisian Red Crescent takes care of their reception and registration,

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and then transmits the requests to UNHCR. Following a fairly simple procedure,

UNHCR takes either a positive or a negative decision.

If the response is positive, the person will obtain refugee status. He or she will be

awarded a refugee certificate. The number of persons granted refugee status with

UNHCR is 649 until 31 December 2016. Some of them were already in Tunisia before

2011. In February 2019, UNHCR counted 1144 refugees and 349 asylum seekers.

If the UNHCR response is negative, the person may be in a situation of lawlessness.

The situation of unsuccessful asylum seekers is particularly worrying. They are, in

fact, considered by the Tunisian authorities and the UNHCR as irregular economic

migrants, and not refugees. The unsuccessful asylum seekers have conducted

several actions to protest against their situation. They incur two major risks:

detention or retention, and deportation. Several migrants have testified to the

inhuman conditions in which deportation is taking place.

If refugee status is refused by the UNHCR, the person will be considered illegal

under the laws relating to residence in Tunisia. Many asylum seekers are detained

in the detention centres. The centre of El Wardiya, in the south of Tunis, hosts many

unsuccessful asylum seekers.

Part III: The difficult integration of foreigners into society

The third part of the study analyses the many limitations that stand in the way of the

foreigner’s integration into society. The foreigner’s integration efforts face a set of

discrimination acts based on nationality, religion or race.

With regard to nationality-based discrimination, it would be difficult for a foreigner

to acquire Tunisian nationality, since Tunisian nationality law remained extremely

closed with regard to the foreigner and discriminatory against women.

The main source of Tunisian nationality law is the Nationality Code. This Code

was promulgated by the decree of January 26th, 1956, a few months before the

acquisition of independence by Tunisia. Most of the provisions of this Code were

taken up by the Decree-Law of 28th February 1963.

The Code distinguishes between Tunisian nationality of origin and acquired Tunisian

nationality.

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The nationality of origin is automatically attributed, since birth, through jus

sanguinis or jus soli. In reality, the transmission of Tunisian nationality of origin

is essentially by filiation, by way of jus sanguinis (the law of blood). This is how

anyone born to a Tunisian father or mother will be Tunisian. However, access to

Tunisian nationality by way of jus soli (the right of soil) remains difficult. Under

Article 7 of the Code, foreigners can acquire Tunisian nationality only if they are

born in Tunisia, and their father and paternal grandfather are born there. The text

therefore requires the succession of three generations born in Tunisia so that the

foreigner can integrate the community of nationals. This article has never been

amended since the promulgation of the Nationality Code.

As for the acquisition of Tunisian nationality, it is governed by rules rather difficult to

fulfil. Indeed, unlike the automatic attribution of Tunisian nationality, its acquisition

is uncertain.

The acquisition can be done either by the “benefit of the law” or by naturalization.

The acquisition by the “benefit of the law” concerns only one case: that of the

foreign wife of a Tunisian man. As for naturalization, it is subject to rather restrictive

conditions.

These rigid procedures for granting Tunisian nationality have important implications

on the exercise of economic rights, which are doubly limited by a restriction of the

right to work and of the access to property.

The right of the foreigner to work is limited on three levels: by a ban on access to

the public service, and a limitation of access to liberal or salaried activities.

Access to the public service is thus prohibited to foreigners. The civil service is

reserved for nationals. Recruitment of foreign citizens may, however, be by contract

and for a fixed period.

With regard to the exercise of liberal professions, most of them are reserved for

nationals. Thus, one must be Tunisian to practice the profession of lawyer or

architect in Tunisia. However, foreign architects may be allowed to practice by

ministerial agreement. Similarly, to practice the profession of doctor or dentist, this

can be done only following a «temporary and revocable» authorization, granted by

the Minister of Public Health after consulting the Council of the Order of Doctors.

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In addition, the rules governing the work of foreigners, as employees, are restrictive

and limit the right to work. Indeed, the employment of foreign workers is subject

to substantive and formal rules. In terms of substance, the employment contract

is largely in accordance with the principle of national preference. In terms of

form, the conclusion of the employment contract is subject to very complex and

inconsistent conditions. The drastic rules imposed on foreigners to enter the labour

market push them towards precariousness and expose them to human trafficking.

Domestic servitude of sub-Saharan women is one of the most important figures of

human trafficking in Tunisia.

On the other hand, the foreigner’s economic rights are limited by the limitation of

access to agricultural or non-agricultural property. Indeed, access to agricultural

real estate property is categorically prohibited, and access to non-agricultural

property is strictly controlled, despite the anchoring of the fundamental right to

property by the article 41 of the Tunisian Constitution of 2014.

Some derogatory rules have allowed foreign access to agricultural real estate

property, but their reach is almost void. Foreigners’ access to agricultural real

estate has remained limited for at least two reasons; the obligation to reside in

Tunisia and the condition of obtaining an authorization, granted by decree, which

ensures the control of the administration on property belonging to foreigners. In

practice, authorization has very rarely been granted.

The access of the foreigner to non-agricultural real estate property is controlled by

prior authorization from the governor. However, exemptions have been made to this

requirement, in particular for nationals of the Maghreb States, through bilateral

agreements.

But the effective implementation of these agreements has for a long time been

suspended by a questionable administrative practice. Today, the implementation of

bilateral agreements barely prevails at the level of practice.

Moreover, many discriminations of religious origin affect the exercise of family

rights by the foreigner. These discriminatory rules concern both extra-patrimonial

family relations and patrimonial relations.

Thus, the prohibition of the marriage of Muslim women to non-Muslim men, the

denial of the right of custody to the foreign mother or the impediment based on the

disparity of worship place the foreigner in a situation of “inferiority”.

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Individual liberties of foreigners in Tunisia: The Metics of the Republic

Interpreting Article 5 of the Personal Status Code by reference to Islamic law, the

Tunisian courts have for several decades considered the marriage between Muslim

women and non-Muslim men null and void, thus imposing discriminatory rules on

foreigners wishing to marry Tunisian women.

Until very recently, the marriage of the non-Muslim foreigner with a Tunisian

woman could be hindered because of the matrimonial impediment based on the

difference of worship. The trend has however been challenged today by the courts

and by the intervention of the executive, but it is by no means certain that it will be

confirmed.

Similarly, the right to custody of non-Muslim foreign mothers is a particularly

sensitive issue in Tunisian law. An identity withdrawal and a confessional and

cultural argument have marked several decades of jurisprudence, leading to

denying the non-Muslim foreign mother the right to custody. Several decisions

handed down, both by the courts of the merits and by the Court of Cassation in

Tunisia, refused exequatur to foreign judgments relating to custody because of

their opposition to international public order, to which judges gave confessional

content.

It is permissible to think that this jurisprudence has been called into question. The

Court of Cassation now bases the public order on the interest of the child, and thus

admits the right of custody of the non-Muslim foreign mother.

The return to Islamic law also served as a basis for questionable jurisprudence,

denying the foreign and non-Muslim parent his right to inheritance.

As for marriage, no text clearly provides that the disparity of worship constitutes

an inheritance impediment in Tunisian law. In fact, the question comes down to a

problem of interpretation of Article 88 of the Personal Status Code.

Evolved in a jagged manner, jurisprudence has gone through three stages on this

delicate issue. In a first step, Tunisian courts almost systematically referred to

Islamic law to interpret Article 88 of the Personal Status Code, thus denying the

heir his right to inheritance. In a second step, the Court of Cassation hesitates

between an interpretation faithful to Islamic law and a secularized interpretation of

Tunisian law. A secularized interpretation marks a third stage.

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Finally, discrimination against foreigners is also based on race. Indeed, many

foreigners from Sub-Saharan Africa suffer daily acts of racism, sometimes

reaching physical violence. Anti-Black racism is a deplorable phenomenon well

known in Tunisia. Tunisian and foreign media often report racist incidents occurring

in Tunisia.

Faced with the resurgence of racist attacks against foreigners from sub-Saharan

Africa, the Tunisian authorities finally decided to react by promulgating the law of

23 October 2018 on the elimination of all forms of racial discrimination.

The promulgation of this law has been hailed by human rights activists and the

many associations involved in the fight against racism in Tunisia.

The objective clearly stated in article 1 of the law is ambitious, it aims to «eliminate

all forms and manifestations of racial discrimination in order to protect the dignity

of the human being and to establish equality between individuals with respect to

enjoyment of rights and the fulfilment of duties, in accordance with the provisions of

the Constitution and international conventions ratified by the Republic of Tunisia».

Article 2 of this law defines in a broader sense racial discrimination.