The Decree Has Been Published!
Decree No. 2020-1417 of 19 November 2020
This summarises some of the key points of the legal document bringing the Withdrawal Agreement (WA) residence permits into law.
RIFT will be following up a number of questions that remain unclear, largely on account of inconsistency with other sources.
Background
We had been waiting some time for the French authorities to finalise this decree, which was finally issued by the Interior Ministry on 19 November 2020, a month after the on-line system was rolled out for the Withdrawal Agreement Residence Permit (WA RP).
One of the reasons for the delay was no doubt the consultation of the Conseil d’Etat and of all the administrations of overseas territories (a large part of the decree concerns their specific cases, which will not be dealt with here). It enters into force with immediate effect.
The decree is supposed to be consistent with the Withdrawal Agreement (WA), as referred to in its Preamble.
Scope
There are 5 different categories of beneficiary of the new status:
1. British nationals lawfully resident in France prior to 1/1/21 and who remain resident thereafter (subject to the permitted absences mentioned below).
2. British nationals as above but specifically spouses or “partners” of French nationals. Spouses must be able to prove they were married, and partners that they had a stable relationship, before 1/1/21. It appears that spouses and partners are not bound to fulfil the conditions of the immigration rules stipulated for the previous category.
3. Family members (British or non-British) of the above who have either been living in France before 1/1/21 or have taken steps to come to France (e.g. by applying for a visa), if they fulfilled the following conditions before that date and continue to do so:
- children under 21 or still dependent on the British national, dependent ascendants, spouses, partners in a stable relationship, dependants of spouse;
- they must have been part of the British person’s household or dependent on that person, already in the country of origin, or require the immediate support of the person for serious medical reasons.
4. Family members under point 3 can join the resident in France after 1/1/21 in the case of:
- relationships existing before that date and ongoing at the time of the application;
- children born to or adopted by the resident after that date;
- children of which the resident has custody.
5. Frontier workers, working in France before 1/1/21 but living in another EEA State, Switzerland or UK.
Crossing Borders
A WA RP will be mandatory from 1/10/21 and until then those who do not yet have one will be expected to show “documents” proving that they are covered by the WA (we presume this means the receipt of application or utility bills).
Non-British family members not yet having a WA RP will need a visa (free of charge) if they are of a nationality which requires one. Family members arriving after 1/1/21 (category 4 above) will be allowed to stay for 3 months and then will need their WA RP (but this is inconsistent with Article 8 and with the WA, which protects them until they actually obtain it).
Applying for the WA RP
Until 1/10/21 British nationals retain residence, employment and welfare rights without needing a WA RP. Article 7 suggests that non-British family members will not retain these rights without a WA RP, but this may not comply with the WA.
Minors who turn 18 after 31/12/20 can apply for a WA RP within one year from their birthday, or from the age of 16 if they need one to work.
The deadlines can be extended in exceptional circumstances.
A receipt will be issued for the application on request.
The WA RP entitles its holder to engage in any professional activity within the law.
The WA RP and its renewals will be free of charge.
Residents of less than five years
These residents will be given a WA RP with a validity of 5 years from the date of issue. An order (arrêté) will be issued listing the documents that have to be presented.
Workers (salaried and non-salaried) will retain their right of abode if they are no longer in work for certain reasons (temporary incapacity, involuntary unemployment with registration at job centre, vocational training); in other cases it is presumed they will have to apply to remain under another status, if possible.
Article 14 refers to the need for medical insurance and sufficient resources (exactly how this will be determined is to be clarified by RIFT).
British students in France can also claim a WA RP.
Family members who are dependants before 31/12/20 do not lose their right of abode if they are no longer dependent in the future.
Partners of French nationals (as opposed to spouses) are entitled to this card (unless of course they can claim a permanent card in their own right).
The WA RP granted to British family members will be maintained if the existing British resident dies or leaves France; or in the event of divorce. But non-British family members will lose their right of abode if the British person dies before they have lived together in France for one year; or in the event of divorce unless the marriage has lasted 3 years, including 1 in France, up to the start of the procedure; or unless the non-British person has custody or contact rights in respect of a child (and other exceptions such as domestic violence).
If the person they are joining dies or leaves France, (non-British?) children and the family member with custody thereof will only retain their right of abode until the children finish secondary school in France.
The 5-year WARP will be renewed under the same conditions.
Permanent residents
A permanent WA RP (with a validity of 10 years from the date of issue) will be issued to a beneficiary who already has a permanent Carte de séjour or who has lived in France for five years and is still a lawful resident. The right of permanent abode will not be lost in case of absence for up to five years prior to 31/12/20.
British nationals who have French spouses (not partners) will automatically be entitled to a permanent card provided the couple have continued to live together (it may be necessary to prove this), the French spouse has retained French nationality and the marriage is registered in France if it took place abroad. It does not say whether this applies to spouses who have acquired French nationality since the marriage. Nor does it mention death or divorce, implying that the right is then independent of the marriage.
Some British nationals in France for less than 5 years may be entitled to a permanent card, such as those who are no longer in employment because of retirement or being incapacitated. Frontier workers who have lived and worked in France for 3 years, if still living there and returning once a week, are also entitled. Family members of deceased workers may also obtain the permanent card before the 5 years are up.
The holder of this card is entitled to 5 years’ consecutive absence before losing the status.
The card will be renewed as of right, except on grounds of criminality.
Special categories
British nationals who have arrived in France before 1/1/21 to find work can remain if actively looking for a job with prospects of being recruited. The card will only be valid for 6 months, but renewable.
Frontier workers who work in France but live in the EEA, Switzerland or the UK will be issued with a travel document under the WA, which will be mandatory after 1/10/21.
Safeguards
Rights will be preserved until the WA RP is issued, including during an appeal process. Permits can be refused if the person represents a serious threat to public order.
All three types of card will entitle the holders to work in France, in lieu of a work permit, and to social security affiliation (also entitlement to RSA and housing rights) if they fulfil the conditions (including family members).
RIFT will be following up a number of questions that remain unclear, largely on account of inconsistency with other sources.
References
The following links all point to official information sources:
Text of the decree (in French) Décret n° 2020-1417 du 19 novembre 2020 concernant l'entrée, le séjour, l'activité professionnelle et les droits sociaux des ressortissants étrangers bénéficiaires de l'accord sur le retrait du Royaume-Uni de Grande-Bretagne et d'Irlande du Nord de l'Union européenne et de la Communauté européenne de l'énergie atomique - Légifrance (legifrance.gouv.fr) https://www.legifrance.gouv.fr/jorf/id/JORFTEXT000042538704
Disclaimer
This is one of a series of guides and information sheets produced by Remain in France Together (RIFT). RIFT is a statutory association governed by French law and managed and run by volunteers. It exists to uphold the rights of British citizens living in, or moving to, France affected by the UK withdrawal from the EU.
The information is for general guidance and does not constitute legal advice. It is offered free for personal, non-commercial use.
The main source of information to keep up-to-date with developments in citizens’ rights is our website https://www.remaininfrance.fr/
When using our printed guides, you should check the website to make sure that you have the latest version.
Original author/date: James Brannan, November 2020.
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