Decree Explainer!

Admin note * Since the publishing of this article, the arrêté (ministerial order) has been published and the flowcharts on the residency application portal have been updated. Links to translations of the decree and arrêté and the updated flowcharts can be found on our Resources page.

On 19th November 2020, the French Government passed a decree outlining the rights and obligations for British Nationals and their loved ones living in France before the end of 2020. This decree entered into force immediately.

Legal Terms

What do these different legal terms mean“agreement”/”decree”/”arrêté”…?

Agreement

The Brexit Withdrawal Agreement is now enshrined in EU law as an International Treaty. Here is a link to the Withdrawal Agreement with citizens’ rights being covered from part 2.

This EU law is a very high level of protection for our rights. Although this agreement covers the rights of British people living in the EU and EU citizens living in the UK, every Member State of the EU and the UK has to publish its own domestic legislation laying out its rules and requirements. In France, we have a decree that does this.

Decree

After the law, we have a decree that has a higher legal value than an arrêté. It is an executive decision taken by the Prime Minister, currently Jean Castex, and is typically countersigned by the Government Ministers involved with the application of the law and it may even be signed by the Président. This is the long-awaited decree.

https://www.legifrance.gouv.fr/jorf/id/JORFTEXT000042538704

Arrêté

An arrêté is an executive decision that could be general or individual that comes from one or several ministers, or down the hierarchy from administrative authorities to the préfecture and municipal level.

The main arrêté we await will probably be from the Minister of the Interior - Gérald Darmanin. We see from Art 12 of the decree that an arrêté will be provided by the minister charged with immigration regarding the required documentary evidence. This arrêté may come very soon indeed. We already have the flowchart linked through the portal but perhaps we can hope for some changes to this.

Circulaire

At the very bottom of the legal terms hierarchy is the circular, which in principle has no regulatory value, but it specifies how the texts are to be applied. We may see some of these being sent about to cover issues such as explanations to the staff at préfectures on what to do.

What does the Decree Say?

You must apply for a new residency permit

Every British national living in France has to apply for a new Withdrawal Agreement Residency Permit.

In order to benefit from the Withdrawal Agreement, British nationals are required to be legally resident in France before December 31st 2020, this decree does not cover people who move to France after this date.

The Interior Ministry has opened up an online portal for British nationals to make their applications:

https://contacts-demarches.interieur.gouv.fr/brexit/brexit-demande-titre-sejour/

Note that those who completed their applications through the previous ”no-deal” online portal do not need to re-apply. They will hear back from their préfecture regarding the next steps.

Those eligible will get a permit saying “Accord de Retrait du Royaume Uni de l'UE” - Withdrawal agreement between the UK and EU.

There are 5 different categories of beneficiary of the Withdrawal Agreement status:

1. British nationals legally resident in France prior to 1st January 2021 who are also resident after this date.

2. British nationals that are spouses or “partners” of French nationals. Spouses must be able to prove they were married and partners must prove they had a stable relationship prior to 31st December 2020.

3. Family members (British or non-British) of the above who have either been living in France before 1st January 2021 or who have started their move to France if they are the following :

- 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 National’s household or dependent on the British National in the country of origin, or require the immediate support of the person for serious medical reasons.

4. Family members mentioned above can join the resident in France after 1st January 2021 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 the British national has custody of.

5. Frontier workers who were working in France before 1st January 2021 but living in another EEA Member State, in Switzerland or in the UK.

How much does it cost?

The Withdrawal Agreement Residency Permit and its renewals will be free of charge.

What rights will my new Residency Permit give me?

Your new residency permit will give you a right to live, work, study, receive healthcare and receive benefits in France and will be similar to the benefits enjoyed by EU citizens in France. The permit includes a work permit along with rights to social security affiliation (including RSA, old age and housing rights). Your permit will also be proof for any future S1 you may be eligible to receive, pension aggregation and state pension uprating.

When must I apply?

Every British National and Agreement beneficiaries who are already resident must have made their application for a permit by June 30th, 2021. Family reunification applications can be made at any time after.

Every British National resident before 31st December 2020 must have a Withdrawal Agreement permit by October 1st, 2021. It is possible that certain employees/officials of authorities and employers may not be fully aware of this October deadline, however, the certificate of application you will receive as soon as you apply should ease concerns until you receive your new permit. Until you receive your permit you may be expected to show “documents” to prove that you are covered by the Withdrawal Agreement (proof of legal residency before 31st December 2020). Your citizens’ rights will be preserved until the permit is issued, including during an appeal process. Permits can be refused if a person represents a serious threat to public order.

British nationals living in France after October 1st 2021 who do not hold a Residency Permit will be living in France illegally. Of course, if there is a good reason why they were not able to make their application in time this will be considered. The deadlines may be extended in exceptional circumstances.

I hear there are two types of permits?

Permanent 10 year Permits

Those beneficiaries legally resident for in excess of 5 years will receive a permanent Residency Permit. The permit will need updating every 10 years with a new photo (think of it as a bit like a passport - you keep your rights as a citizen for life but you need to update your picture). This renewal process will be simple and further proof of eligibility will not be requested.

Spouses of French Nationals resident for less than 5 years will also receive a permanent permit. Spouses must continue to have a life together and the French spouse must have retained French nationality. Foreign marriages should be registered in France.

Some British nationals in France for less than 5 years may be entitled to a permanent permit, 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 permit earlier.

Applications for these permanent permits are simplified. The right of permanent permanent residence is retained for periods of absence for up to five years.The holder of this permit is entitled to 5 years’ consecutive absence before losing the status.

The permit will be renewed as a right, except on grounds of criminality.

5 Year Permits

British nationals who have been legally resident for less than five years will be given a five-year permit. These nationals have an opportunity to build up their residency rights to a permanent status. Nationals seeking a 5 year permit need to apply under one of these categories:

• A worker

• A student

• A job seeker

• A family member - including spouses or partners, children or dependent adult relatives

• Not earning (inactive such as retired and able to live on own means). Legal residency for inactive requires proof of health cover (either private or in the French medical system) and proof of adequate resources to live. Article 14 refers to the need for medical insurance and sufficient resources. Again, the arrêté will hopefully contain this information.

The awaited arrêté should list the documents that have to be presented.

Workers (salaried and non-salaried) will retain their residency rights if they are no longer in work for certain reasons such as temporary incapacity, involuntary unemployment with registration at Pôle d’Emploi and vocational training.

Partners (not spouses) of French nationals are entitled to this permit (unless of course they can claim a permanent permit in their own right).

What about other circumstances?

Third Country Nationals (TCNs) linked to British nationals

TCN family members will need a visa (free of charge) if their nationality requires one. As well as laying out conditions the decree specifies what happens to those who apply as a spouse or partner and then experience bereavement or divorce.

• If the British national dies, the family member is entitled to stay. The TCN must have lived in France for one year prior to death of spouse/partner

• If the British National divorces, the family member is entitled to stay if the marriage lasted three years or more.

• If the marriage lasted less than three years, the family member could be entitled to stay if they have joint custody of children who are in French schools or in exceptional circumstances such as the ending of the marriage because of domestic violence

Cross-border and Frontier workers

British Nationals working in France but living in another country can apply for a cross-border worker permit that will allow them to work in France - either as an employee or on a self-employed basis. They will receive a permit “Travailleur frontalier/Accord de retrait du Royaume-Uni de l’UE” - Non-résident - cross-border worker/ Withdrawal Agreement between the UK and EU - non resident.

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 1st October 2021.

This applies to people who are already working in France and living elsewhere before December 31st 2020.

Children & Students

Minors who turn 18 after 31st December 2020 can apply for a permit within one year from their birthday, or from the age of 16 if they need one to work.

British students in France can also claim a WA Residency Permit.

Job Seekers

British nationals who have arrived in France before January 1st 2021 to find work can remain if actively looking for a job with prospects of being recruited. The permit will only be valid for 6 months, but renewable.

Admin note: This explainer is correct to the best of our knowledge but should not be construed as advice.