Tuesday 04 April 2017
Despite Brexit the right of residence and of health care for most expatriates in France will not be at the whim of the withdrawal negotiations.
The prospect of Brexit is, not surprisingly, causing a great deal of anxiety amongst British expatriates in France, already having to live with a lower exchange rate and fearing loss of rights of residence and health cover.
Many of them, concerned about the outlook for their legal status in the country, have made application for French nationality or a long-term residence visa.
As residents of the EEA, obtaining a residence visa - a carte de séjour - is merely a bureaucratic formality, with rights of residence varying from 1 to 10 years or for permanent residence. Most expatriates in France should be entitled to at least a 5-year visa, which ultimately leads to a visa for permanent residence.
Similarly, taking French nationality is not too much of a problem, although the process can take a couple of years or more to complete. These days, even getting an appointment to kick off the process can take several months. The option is doubly attractive as both countries allow dual nationality, so there is no need to give up the British passport.
However, is the rush to obtain dual nationality or a visa necessary in all cases? Probably not, for both national law in France and European law guarantee a right of permanent residence for those who have been legally resident for at least five years.
Those expats who have already been resident in France for at least 5 years have an automatic right to remain, and those who establish 5 years’ residence by the time Brexit takes place will also have the same right.
The 5-year rule also exists whether or not the UK is in the EU, for under European law 'third-country' nationals from outside of the EEA have a right of permanent residence after 5 years of being legally resident in Europe.
European Council Directive 2003/109/EC of 25 November 2003 expressly states that such nationals should be granted a right of permanent residence, whether they are professionally engaged or economically inactive. Article 4 of the Directive requires that: "Member States shall grant long-term resident status to third-country nationals who have resided legally and continuously within its territory for five years immediately prior to the submission of the relevant application."
Such persons are required to have 'sufficient resources' and health insurance, but the bar for the former is set low in France, and French law grants an automatic right of access to the health system for any person who has been legally resident for at least three months.
There are also more broader rights enshrined in the European Convention of Human Rights, which the UK has signed up to, and from which it is most unlikely to be making an early exit, if ever. France will certainly remain a signatory.
Thus, although it cannot be completely absolute, Article 8 of the ECHR is hugely important in stating: "(1) Everyone has the right to respect for his private and family life, his home and his correspondence. (2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic wellbeing of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."
Richard Gordon QC and Rowena Moffatt (barristers in human rights law), in a report published by the Constitution Society, state: "Each case would turn on its own particular facts (clearly, long residence and strong family connections would have the best prospects of success) but it may be thought that at least some people no longer able to benefit from EU free movement law would succeed under Article 8.
This protection is one that it likely to be of greatest interest to British nationals who relocate over the next few years, during the negotiation phase of the withdrawal process, but prior to the actual withdrawal date. That date is likely to be a long way off, even if a withdrawal agreement is signed by 2019, on which there is considerable doubt.
Following withdrawal, it may well be that they will need to apply for a residence permit, but the French government will be in no rush to inundate the prefectures with tens of thousands of Brits seeking to regularise their residency. If it is required, in the vast majority of cases it will be a mere administrative formality.
These rights exist independent of any transitional or permanent arrangements that will be put into place in the withdrawal agreement, which might be expected to improve on these rights.
Thus, it is quite probable that the withdrawal agreement will grant an automatic entitlement to those with less than 5 years residence in France the right to permanent residence. The statements that have come from both London and Brussels, have certainly floated in that direction, despite some of the wilder rhetoric that has been around.
In her letter to the EU triggering the withdrawal process, the Prime Minister stated: "We should always put our citizens first. There is obvious complexity in the discussions we are about to undertake, but we should remember that at the heart of our talks are the interests of all our citizens. There are, for example, many citizens of the remaining member states living in the United Kingdom, and UK citizens living elsewhere in the European Union, and we should aim to strike an early agreement about their rights."
In addition, the EU's chief Brexit negotiator, Michel Barnier, has said that securing the long-term rights of EU citizens in the UK and British citizens living in the rest of the EU would be his “absolute priority” from the start. In a speech last month he stated: "We must do serious legal work on this with the United Kingdom. But we can and we should agree, as soon as possible, on the principles of continuity, reciprocity and non-discrimination so as not to leave these citizens in a situation of uncertainty."
There is no suggestion on either side that expatriates will be used as bargaining chips in the bigger game of poker that will be played. And neither will they be shoehorned on to the agenda as AOB; they will be amongst the first to issues to be discussed and agreed. That objective is being driven by the economic and political risks of not giving certainty at an early stage to several million expatriates living across Europe.
Accordingly, given this legal and political context, and the likely duration of the whole withdrawal process, the automatic right of permanent residence is going to be available to those who relocate under EU rules for some time to come.
Of at least equal concern to retired expatriates is the possible loss of basic health cover currently granted through their S1 certificate of exemption. The S1 certificate issued to those on a UK State Retirement Pension grants unlimited life cover for health in France, without the need to pay the state health insurance contribution.
Although it can be anticipated that once the UK leaves the EU the S1 certificates will no longer be issued, it is inconceivable that the British government will withdraw the certificates from those who already hold them. Indeed, it is highly unlikely they would be legally entitled to do so through protection afforded by the ECHR.
Accordingly, those with an S1 can be expected to benefit from a right to retain their S1 cover that will be put in place in the withdrawal agreement.
Until the UK actually leaves the EU the S1 certificates will continue to be available, so their withdrawal may well not be for several years.
It is also likely that those resident in France reaching their age of retirement by the time the UK leaves the EU will benefit from transitional arrangements that will be put in place, beyond the withdrawal date.
For the future, for those who will not be entitled to an S1, the position may well be different, but perhaps not in a significant way.
The current regulations in France grant a right to health care after three months legal residence, not the 5 years that is required to obtain the right of permanent residence. As the French government health website states: "Pour être rattaché sur critère de résidence, vous devez résider en France de manière stable, c'est-à-dire de manière ininterrompue depuis plus de trois mois."
Moreover, for many, this right to health care will be without the obligation to pay a health insurance contribution, although social charges may well be payable.
Under the PUMA health insurance system in France, affiliated non-active persons are required to pay a health insurance contribution of 8% of their net eligible income above a minimum threshold, which is currently €9,807 pa, revised each year.
However, since January 2016, the only income that is taken into consideration is investment income, rental income, and capital gains. Pension income, in particular, is specifically excluded.
In addition, even if you do have investment and rental income, if it does not exceed the above threshold you will continue to obtain free affiliation to the health system.
We have queried the apparent generosity of the system with French officials, who have confirmed to us that pension income is exempt, irrespective of the amount of the pension and of the nationality of the recipient.
They point out, however, that assessors can also take into the account the lifestyle (train de vie) of the claimant, and impose a charge on the wealthy households, but as no regulations have yet been published on this process it is as yet impossible to assess the scope of this rule.
Accordingly, although an S1 certificate may well not be available in the future, provided you are resident on a legal basis (currently resident, transitional rights, visa), if your only income is your pension(s), and your investment income is less than €9,807 a year, you will still obtain free affiliation to PUMA, subject to no train de vie charge.
This fact alone is likely to be one important reason why a French government will be sympathetic to existing pensioners holding on to their S1 certificates, and for generous transitional arrangements to be put in place, for if that occurs it will be the British government that picks up the bill.
There will, however, be potential implications on social charges, for an S1 certificate grants exemption from these charges on pension income. If an S1 is no longer available that exemption will cease.
Many will, however, continue to remain exempt on other grounds - government service pensions are exempt, as are those on a modest income. In addition, those with private health insurance are not liable on their pension income. Social charges are also partially deductible against income tax.
We have introduced a Brexit Helpline for those of you who have questions about the whole process. The service is free of charge. If you have a question, send it to us via the form on our Brexit Helpline page.