Brexit and 'No-Deal'
Tuesday 10 September 2019
With the possibility that the UK may crash out of the EU, what are the legal implications for expatriates and those seeking to relocate to France?
As EU citizens, British nationals can visit France for up to 90 days with no formalities other than a valid passport.
They are entitled to stay beyond 90 days provided they are working, in business or studying.
Economically inactive households also benefit from free movement, provided they have ‘sufficient resources’ and comprehensive healthcare cover, the latter normally obtained by joining the French health system.
Unlike most member states, France does not require EU citizens to register at the 90-day point and residence permits are not obligatory.
This relatively informal free movement we have enjoyed will of course end if the UK leaves the EU.
Although the Withdrawal Agreement agreed by the previous UK government maintained many rights, in the event of a ‘no deal’ Brexit the arrangements will be less comprehensive and less generous.
It is also very likely that a no-deal will mean future negotiations with the EU are going to be far more difficult and a deal with the EU far more costly to the UK.
Nevertheless, in order to provide some certainty for business and for citizens both the EU and the French government have made specific legal provision for a no-deal Brexit with the adoption of a limited number of derogation procedures.
There are also some rights enshrined in laws that are beyond the strict provisions of EU law and which will not change in a no-deal Brexit, eg European Convention of Human Rights, Double Taxation Treaty.
The following notes cover the main implications on households.
UPDATE Dec 2019: With the election of a majority Conservative government a 'no-deal' concerning citizen rights can now be ruled out, although a trade deal has yet to be negotiated. A transition period to 31st Dec 2020 will also remain in place, under which EU law will continue to apply.
It will remain possible to visit France for up to three months without a visa, although UK nationals will be subject to Schengen area border controls.
Under the Schengen rules third-country nationals 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 home owners will not be affected by the UK leaving the EU, it will constrain their ability to visit France.
Many spend half of the year (or more) at their second home and this practice is going to become more complicated, as they will be subject to the same rules as other third country national visitors to France, i.e. visa, health insurance and sufficient resources.
In addition, there is currently no agreement to continue the European Health Insurance Card (EHIC) scheme, so it will be necessary for all visitors to take out travel insurance that includes comprehensive health cover.
You can read more at Travel to France after Brexit.
Living in France
For those who are resident in France before the UK exits, it will be necessary to make an application for a new type of residence card.
It will be necessary for all UK nationals to obtain a card, even if they already have an EU based residence card.
The French government have stated that application must be made within six months of a no deal exit and a residence card will be obligatory after a year.
That is a most ambitious objective, and one that is unlikely to be realised under the present system as prefectures will be unable to deal with the level of the demand.
Considerable delays have already occurred from UK nationals seeking EU residence cards in a bid to obtain security before Brexit, which will be magnified many times over after Brexit.
As a result, the French government have launched an English language online registration platform for applications from UK nationals living in France.
It is highly unlikely that a late application by a UK national is going to result in them being asked to leave the country, provided they meet the requirements for legal residence.
Even where they may not do so, the European Commission has urged all Member States to take a 'generous and pragmatic' view of household circumstances. The French government have also stated that they will take a 'generous and flexible' view of the position of British nationals, eg, age, health, duration of residence, family circumstances, etc.
Accordingly, whilst expats in France do need to prepare for Brexit, the position being adopted by the French government is reason enough to take with a degree of circumspection some of the more alarming claims that have circulated on-line about the risk of expulsion.
The type of residence card available will depend on the duration of legal residence.
i. Resident 5+ Years
If you have been legally resident for more than 5 years you will be able to apply for a carte de résident, a card normally issued in accordance with the EU long term resident’s directive, with a validity period of ten years.
A carte de résident permanent can be offered to those who are renewing a 10-year residence card and is systematically offered to those renewing a second ten-year card, or those aged over 60 years with at least 5 years legal residence.
However, this card is not the same as the permanent residence card issued to EU citizens and is not issued under the EU law for long term residents, but under French immigration law. It does not provide the same protection and provisions for movement to other Member States of the EU.
Those who already have an EU permanent resident card will be able to exchange their card for the new card with no need to justify their current income or health insurance cover.
Those who currently have permanent residence rights but do not already have an EU permanent resident card will have to apply for the new card and prove that they currently have sufficient resources and health cover.
This requirement to prove resources applies to all residents, not merely inactive persons, as is the case before Brexit.
Legal residence prior to Brexit will be taken into account and French law already protects people who have been legally resident for over ten years from being refused a residence permit and ordered to leave the country.
There are other categories of people who are protected from receiving a removal order in French law, listed at Interdiction de Retour.
ii. Less Than 5 Years
For those who have lived in France for less than five years, and who presently have temporary residence rights, there are a range of standard residence cards with validity dates from 1 to 4 years depending upon your status. These cards obviate the need for a work permit. All cards will require proof of sufficient resources and comprehensive health insurance cover.
Once you have lived legally in France for 5 years you can apply for the long-term resident’s permit with a validity period of ten years (carte de résident).
iii. New Arrivals
The requirements that apply for those who arrive after the UK leaves the EU will be those that already apply to other third country nationals.
The processes and the rules for visas and residence permits are complicated, and they vary substantially by the reason and duration of your stay.
We shall be covering these processes in future after the dust has settled, but our article Visas for Non-Europeans gives a flavour of it all. The French government also have useful English language advice at Visa Application Guidelines.
If you seek a permanent residence card, once you are in France you will need to participate in an integration process, called Republican Integration Contract (CIR), which includes a basic language test, for which purpose the French government run courses. However, if you are not ready for the test, you can renew an existing shorter-term visa.
More lenient provisions could be made in a future bilateral agreement.
Depending upon the reason for your stay a work permit may also be necessary.
Test of Resources
A test of resources will apply to both new arrivals and those resident prior to Brexit, unless they already hold an EU permanent resident card (carte de sejour permanent).
The level of minimum income required depends upon whether you are resident in France prior to Brexit or a new arrival after Brexit.
i. Current Residents
The adequacy of resources needed, excluding benefit payments other than Allocation aux Adultes Handicapés (AAH), is the flat-rate amount of the minimum income support benefit, called the Revenu de Solidarité Active (RSA). The amount varies according to your household composition.
- For a single person it is €559, which increases to €958 with 1 child through to €1,677 for four children.
- For a couple it is €839, rising to €1,007 with 1 child, through to €1,567 for four children.
Whether someone would be refused residence rights because they do not meet the income test is not certain because prefectures normally assess households individually to determine whether they are self-sufficient and take their lifestyle into account.
In all cases, owning one’s own home and living rent and mortgage free will be taken into consideration in determining whether a lower income threshold can be accepted.
Those in receipt of AAH will not be subject to a resources test.
ii. New Arrivals
The minimum income level that will be required depends upon the type of resident card or visa applied for.
For workers, the minimum wage of SMIC, currently approaching €1,600 gross per month, is normally enough for a household of up to three people.
The visitor permit that will apply to inactive/retired households is currently a minimum monthly amount per person of €1,204, although for a couple prefectures would have regard to SMIC thresholds in considering their application.
As above, owning one’s own home and living rent and mortgage free will be taken into consideration in determining whether a lower income threshold can be accepted.
If your income is below that level, but you have substantial capital resources that would enable you to live in France for at least a year or more, then you may be granted a temporary visa on that basis.
The health insurance requirement in the event of no-deal is a concern for those retired UK nationals who currently rely on an S1 from the UK, since there is as yet no long-term commitment to continue with this scheme from either government.
France has agreed to continue health cover for those on an S1 for two years, with the stated aim of both governments being to come to a bilateral agreement about reciprocal healthcare in future.
What is not clear is whether the UK would continue to be liable for the costs of their healthcare, or whether S1 holders would become liable for the PUMa health charge, albeit few households are liable for this charge, which is only payable on capital income above a threshold.
Future arrivals will lose access to the EHIC scheme unless a bilateral agreement is made. They will need to have comprehensive health insurance cover from their date of arrival, until they access the French healthcare system, which for inactive people can be after three months of residence.
Bizarrely, as we point out elsewhere, French law grants a more automatic right to non-EEA inactive resident households to enter the health system, as they are not subject to the 5-year residence requirement that formally applies to EEA nationals!
There are concerns for many families over what rights their children will have if they are not currently resident in France but have taken up an opportunity to study elsewhere in the EU, including in the UK.
A student gains residence rights in the country in which they study but that can mean they can lose their rights in the country where they have lived up until leaving for university and where their family still lives.
The no-deal legal provisions adopted in France only seem to cover those who are resident on the relevant cut off date, so some students studying away from home could be excluded, even if they currently still have permanent residence rights.
Those under 21 years of age would be able to return home, but the rights are less clear for those over 21, who would have to prove their dependence.
In the event of a no-deal the UK has agreed to continue uprating of pensions for those already in receipt of a State pension for up to 3 years, during which time it is hoped that a bilateral agreement will be agreed.
For those who have accumulated UK pension rights, but are not yet of pensionable age, contributions will be taken into account and amalgamated with any French contributions, but only those made up until the exit date.
Visitors will be able to drive in France with a UK driving licence provided they have an International Driving Permit or an official translation of their licence.
Those who become resident after Brexit will have to exchange their UK licence for a French one within a year of arrival, although a final decision on this has yet to be made by the French government.
However, those who are resident before Brexit can continue to use their UK licence and only need to exchange it for the usual reasons, such as when the photocard needs renewing or when they are required to because of a points adjustment being ordered after a driving offence.
Vehicle importation procedures will be more time-consuming, complex and costly.
Income tax in France will remain unchanged, although if S1 health certificates are no longer valid then holders will lose their existing entitlement to exemption from social charges on their pension income. However, there remain exemptions and reduced rates below certain income thresholds.
Non-resident UK nationals will also pay the full social charges of 17.2% on rental income and capital gains, not the reduced rate of 7.2% for EEA non-residents.
For more information read our Guide to Social Charges in France.
Those working in France, either as a salaried employee or in business, prior to Brexit will be entitled to maintain their professional activity, although those in business will be required to demonstrate that they have sufficient resources.
New arrivals will need to obtain a work permit as part of the visa application process.
For those living in France, but working in the UK, who benefit from current provisions that allow them to remain in the social security system of their home country will cease to benefit from EU cross-border policies on social security contributions in the event of a no-deal.
Such persons will also lose entitlement to their S1 certificate of exemption for health.
Where a person exercises employment on a regular basis in both countries, they will be liable for social security contributions in France and the UK.
The UK government has set out the process at Pet Travel to Europe after Brexit.
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.