With the UK now out of the EU, what are the procedures for obtaining a legal right to live in France?
As EU citizens, UK nationals were able to visit France for up to 90 days with no formalities other than a valid passport.
They were entitled to stay beyond 90 days provided they were working, in business or studying.
Economically inactive households also benefited from free movement, provided they had ‘sufficient resources’ and comprehensive healthcare cover, the latter normally obtained by joining the French health system.
The terms of departure of the UK from the EU are contained in a Withdrawal Agreement (WA), which is now legally binding on both sides.
Under the terms of the WA, the rights of existing expatriates in France are protected in perpetuity granting them a right to live and work in France on the same terms as existed prior to the UK leaving the EU.
UK nationals will need to obtain a residence permit, but in the vast majority of cases it will be a formality. The application will need to be made on-line, with the process open from July 2020 and a year to make the application. As the French government advise: "British citizens residing in France will not be required to hold a residence permit until 1 July, 2021."
Those existing expats who have any doubts about the legality of their current status in France need to consider their next steps, as we indicated in our article Brexit and Residence Rights in France.
Under the WA there is a loss of some political rights, and there are also concerns about the lack of provision in the WA for freedom of movement beyond France, but the right to visit, work and live elsewhere in Europe is not entirely lost, as we stated in our article Brexit and the Right of Onward Movement.
The WA also provides for a transition period until the end of 2020, during which time EU law will continue to apply.
Accordingly, if you relocate to France before the end of 2020 you will obtain the same, more favourable, legal rights as those who were living in France prior to the UK leaving the EU. No entry visa requirement applies.
The WA also provides for a possible extension of the transition period for up to a further two years, but this idea has been ruled out by the British government.
Although there remains talk of a ‘no-deal’ it concerns mainly trade negotiations that are shortly to commence between the UK and the EU. There is no longer any prospect of a ‘no-deal’ concerning citizens’ rights.
So just what are the terms of the WA as they affect your right to visit France and live in France post 2020?
Visiting France Post 2020
Beyond 2020 you will be able to visit France for up to three months as a tourist, without the need for a visa. France has agreements with many countries concerning visa-free travel for tourism and the UK is not going to be an exception to that general rule.
The Political Declaration between the UK and the EU, signed alongside the WA, which will be used as the basis for developing their future relationship also confirms that position, stating: 'the Parties aim to provide, through their domestic laws, for visa-free travel for short-term visits.'
It also states that: 'In line with their applicable laws, the Parties will explore the possibility to facilitate the crossing of their respective borders for legitimate travel.'
Nevertheless, until a new broader agreement is reached, UK nationals will be subject to Schengen area border controls.
Under the Schengen rules 'third-country' nationals (as UK nationals will then become) have to leave at 90 days and not return for 90 days. It is a rolling 180-day period, so at each visit it is necessary to calculate whether by the end of your visit you will have exceeded 90 days in the previous 180 days. If you overstay you can be prevented from returning.
As a result, though the property rights of second home/holiday homeowners will not be affected by the UK leaving the EU, it will constrain their ability to visit France.
The EU is in the process of introducing an electronic travel information and authorisation system (ETIAS) for those travelling to Europe from visa-free countries.
This means that your travel back and forth (including dates of arrival and departure) will be logged on a central computer system.
Many second home-owners currently spend up to six months or more in France and this practice is going to become more complicated, as they will be subject to the same rules as other non-EU nationals visiting France, i.e. visa, health insurance and sufficient resources.
In addition, there is currently no agreement to continue with the European Health Insurance Card (EHIC) scheme, so it will be necessary for all visitors to take out travel insurance that includes health cover.
The British government has stated that it wishes to enter into arrangements with European countries for a replacement of the EHIC and the Political Declaration also states: 'The Parties also agree to consider addressing social security coordination in the light of future movement of persons.'
Moving to France Post 2020
As we are entering unchartered waters, we cannot be completely sure of just how the French government will treat visa applications from British nationals. The French Embassy in London have told us that: "the post-Brexit regulations have yet to be written".
However, it is unlikely there will be specific provision for the UK, if only, in the immediate future, due to time constraints and those of European law.
The Political Declaration also makes clear the position of the UK: 'the United Kingdom has decided that the principle of free movement of persons
between the Union and the United Kingdom will no longer apply.'
In due course, it is possible the UK and France may enter into a bilateral agreement, or there may be a new, wider agreement with the EU, but until and unless such an agreement is reached, the requirements that apply for those who arrive from 2021 onwards will be those that already apply to other non-EU nationals.
The conditions for entry of third-country nationals are set out in the Code de l'Entrée et du Séjour des Etrangers et du Droit d'Asile (CESEDA).
The processes and the rules for entry visas and residence permits are complicated, and they vary according to the reason and proposed duration of your stay. In all cases, however, applications are considered on an individual basis.
Generally speaking, those seeking to relocate to France will need to make application for a long-stay visa called a visa de long séjour, of which there are different types, but most are valid for initially one year.
Specialist visas and residence permits are issued to those who have family ties to France, those with substantial wealth, non-European family members of an EEA citizen, students, artists, seasonal workers, or those with skills or talent which could make a substantial contribution to the country, which may be for periods shorter or longer than a year.
The most common long-stay entry visa effectively doubles up as a residence permit. It is called Visa Long Séjour valant Titre de Séjour (VLS-TS),of which there are several different types, other than specialist visas:
- Where you are not proposing to work or set up a business in France you will need a Visa de Long Séjour valant Titre de Séjour - Visiteur;
- Where you are proposing to set up a business it is called un Visa de Long Séjour valant Titre de Séjour - Entrepreneur/Profession Libérale;
- Where you have salaried employment it is a Visa de Long Séjour valant Titre de Séjour - Salarié.
You must arrive in France within three months following the issue date of your visa.
If you have been issued with a VLS-TS, there are particular validation requirements once you arrive in France, but no need for you to apply for a residence permit (Carte de Séjour) for the duration of the visa, normally one year.
Alternatively, you may be granted a visa called a Carte de Séjour à Solliciter, which gives a right of entry to France and requires you make application for a residence permit in the two months following your arrival in France.
Where you are certain of not staying longer than a year you can apply for a Visa Long Séjour Temporaire (VLS-T).
As well as a visa application, you may also need to make an application for a work permit, although the double requirement will not always apply. Employers in France will normally take care of the initial formalities for a visa for a prospective employee.
Several months before you leave the UK, you will need to apply for a visa from the French Embassy in the UK.
You will need to produce a substantial amount of documentation. It is imperative that the the application is completed correctly, or it will be delayed or even rejected on procedural grounds.
You will also be required to attend an interview, either in London, Manchester or Edinburgh. Some of the documentation will need to translated by a certified and accredited translator.
A fee of €99 is payable.
As part of the process two important conditions will apply: sufficient financial resources and health insurance.
It may well be that practice will vary between the requirements imposed by officials in the UK, who will issue the initial entry visa, and prefectures in France who will be required to adopt the following main principles in the issue of residence permits.
Test of Resources
In relation to the test of resources, it requires that you have an resources at least equivalent to the minimum working wage (SMIC), which is currently €1,219 net per month.
The test is applied differently as between those who are economically inactive and those who are proposing to run a business activity, or who will become salaried.
Strictly speaking, if you are not proposing to work, the SMIC figure is per adult in the household, although in practice a lower test is applied.
Thus, a couple who are retired would normally be able to meet the test with less than twice the SMIC level of resources, which would otherwise be €2,438, a relatively high level of income. However, your income/resources must be 'stable'.
Some relaxation of the SMIC rule operates if you own your home in France without a mortgage, as a lower income threshold may then be accepted, with the law stating:
'Lorsque les ressources du demandeur ne sont pas suffisantes, une décision favorable peut être prise si le demandeur justifie être propriétaire de son logement ou en jouir à titre gratuit.'
Similarly, if your income is below the minimum level, but you have capital resources that would enable you to live in France for at least a year or more, that can compensate for a lower level of income,
Indeed, the term that is used for the test is 'resources', not 'income', so it is potentially the case that provided you can demonstrate you have a capital lump sum of at least the equivalent of SMIC for one year, you may be given a one-year visa. We cannot be certain on this point but it does seem that capital will be taken into consideration in the assessment.
Clearly, however, if you are seeking more permanent residence you will need to demonstrate on renewal of the visa that you still have 'sufficient resources', to enable you to obtain a longer residence permit. If your capital resources are substantial it likely that will be taken into consideration.
ii. Business Owners
Those proposing to set up business will need to demonstrate the economic viability of their project, which requires you produce a business plan.
If you satisfy the authorities as to your prospective earnings the initial minimum income requirement can similarly be relaxed, provided you have other resources, with the law stating as follows:
'Afin de tenir compte des aléas d’un début d’activité libérale, vous pourrez, pour la première délivrance du titre, procéder à un examen assoupli de cette condition et prendre en considération les ressources propres dont le demandeur peut faire état.'
The same concessions concerning owning your home and capital resources that apply to retired persons also apply to prospective business owners.
All of which poses a dilemma for many prospective expatriates, who may be unwilling to invest in the purchase of a property in France unless they can be certain of obtaining a visa. One approach may be to purchase on a conditional basis, but that may not be easy to agree with a seller.
In addition, you will be required to show you will have health insurance cover.
Interestingly, although entry requirements state that health insurance is required, for those entering on a Visiteur visa, the guidance to prefets who grant a residence permit state that they cannot insist on such insurance, stating: 'Le préfet ne peut exiger, pour délivrer ou renouveler un titre de séjour portant la mention «visiteur», que l'intéressé justifie d'une couverture sociale. Le refus fondé sur l'absence de couverture sociale est entaché d'erreur de droit.'
We are seeking more information on this advice, but it is unlikely to apply to those who are granted a VLS-TS, as it will be consular officials in the UK who determine the visa requirements.
It may, for instance, be possible that limited duration travel insurance would be acceptable, until you are able to obtain access to the State system.
At this stage our general advice would to take a prudent view, and to assume private health insurance will be required, not only to obtain admission to France, but also for your own protection.
Although there are many insurers you could use, for those who have a serious pre-existing medical condition such a policy is likely to be difficult to obtain. Age limits often also apply.
If you are setting up a business, once you become business registered in France, you and your family have an automatic entitlement to join the French health system. This may well preclude the need for you to offer a health insurance policy as part of the visa application process. We cannot at this stage be sure, but we hope to be able to offer further advice in due course.
In addition, if you are retired or an early retiree, you have an entitlement to join the health system after three months' legal residence in France. Unlike EEA early retirees, non-EEA nationals are not subject to the 5-year residence rule that applies to EEA nationals.
Thus, the French government health website states: 'If you are not a European citizen ……………You can make an application after three months of residency.’ That statement is also confirmed in law.
In terms of travel insurance, future arrivals will lose access to the EHIC scheme unless a bilateral agreement is reached. That being the case, you will need to take out a private travel health insurance policy.
If you are refused a visa, the reasons for refusal are generally not given, although you are entitled to appeal to the Commission de recours contre les décisions de refus de visa d’entrée en France within two months of the decision.
At least two months before the expiry of your long-term visa, you can either seek renewal of the carte de séjour, or make application for a different type of visa.
If you are retired, you will normally make application for renewal of your existing Visiteur visa, although you may be able to persuade the authorities to grant you a longer visa if you have substantial, stable resources.
If you are employed or run a business, the residence permit you are likely to be granted is called a Carte de Séjour Pluriannuelle, which is valid for four years.
A fee is payable, recently reduced to €200 for most visas, although €50 for students and certain other categories of applicants. A tax (droit de timbre) €25 is also payable in most cases.
The conditions regarding the test of resources and health cover continue to apply.
Business owners in particular will need to prove they are generating adequate income from their business. If you are unable to meet the SMIC threshold from your business income, but you can do so from your total income, then one possible solution is to seek renewal of your carte de séjour on the basis of it being a part-time business activity.
As part of the process of applying for a carte de séjour pluriannuelle, or permanent residence, you will be required to participate in an integration process, called Republican Integration Contract (CIR), which includes a basic language test, for which purpose the French government runs courses.
However, if you are not ready for the test, you can renew an existing shorter-term visa. Where you have applied for a pluriannual residence permit, the government also grants up to two years for you to complete the requirements of the contract, but in such circumstances you will need to demonstrate you are taking the process seriously.
Those who are seeking renewal of a Visiteur visa have no requirement to participate in this integration process, but they will later be required to do so should they subsequently seek permanent residence in France.
After five years' legal residence in France you can apply for more permanent residence (Carte de résident de longue durée-UE étranger en France depuis 5 ans), valid for ten years, the issue of which remains subject to the conditions on income and health insurance. The residence permit allows you to stay in other countries of Europe for more than three months.
Subsequently, you can you apply for a permanent residence permit (Carte de résident permanent d'un étranger en France), which is not subject to any further conditions relating to income or health insurance.
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.