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BREXIT

Second-home owners: Can you hand back a French carte de séjour?

In the confusion around the post-Brexit arrangements for Brits in France, some British second-home owners have ended up with carte de séjour residency cards, which may now cause them problems with French authorities including the tax man. So what can you do if you are in this situation or know someone who is?

Second-home owners: Can you hand back a French carte de séjour?
Second home owners in France can return a carte de séjour. Photo by STEPHANE DE SAKUTIN / AFP

Who does this affect?

This refers to UK nationals who are not full-time residents in France but do spend a significant amount of time here – usually second-home owners.

After Brexit, Brits who lived in France were required to get a special post-Brexit carte de séjour – known as a WARP (Withdrawal Agreement Residency Permit) or in French an Article 50 TUE – and a special website was set up to allow them to apply for the card.

This card was for people who lived here – not people who lived in the UK and own property in France or like to spend time here.

The French authorities deliberately tried to make the application process as simple as possible to ease the administrative burden for their own authorities and the stress for the British population in France, many of whom had been living here for years or even decades before Brexit.

But because of the simplified process, a small number of British second-home owners also managed to get the cards – some believing they had found a loophole to post-Brexit rules such as the 90-day rule, but others who had simply made a genuine mistake or had received bad advice.

This article refers only to second-home owners who have the post-Brexit WARP card – there is a different type of carte de séjour that is open to second-home owners – full details here.

But why is this a problem?

Having a WARP card when you don’t actually live in France is likely to throw up a number of problems.

The basic issue is that the WARP is for residents, so by applying for it you have told French authorities that you live in France. If, however, you are a second-home owner then your main residence is actually in the UK, not France.

It should be noted here that residency for immigration purposes and being a ‘tax resident’ of a country are two different things.

Residency in France takes away problems such as having to limit visits to 90 days, but it also comes with responsibilities, including to the French tax authorities.

So what will happen?

This is a new situation, so it’s not possible to predict exactly what will happen next, but it seems likely that the first problem with be with French tax authorities.

All residents in France – even if they have no French income – are required to make an annual tax declaration, and by obtaining a WARP card you have told French authorities that you are a resident.

EXPLAINED Who has to make the annual tax declaration in France?

Failure to make the annual declaration can lead to hefty fines, but it is also a criminal offence to provide false information (such as the information that you are a resident in France if you are not) on a tax declaration. People who are not resident in France but have income here complete a different type of declaration.  

The deadlines to file this year’s declaration have passed in all areas of France, and authorities have begun to issue late declaration notices to those who had not filed as required.

Completing the declaration late can lead to fines, and if you don’t complete it at all the charges can be pretty hefty.

Late fees, fines and charges: What are the penalties for failing to file a French tax declaration?

Is it only a problem with taxes?

Having a conflicting residency status could ultimately lead to other problems, particularly if you attempt to access services such as emergency healthcare on the basis that you are a visitor, when you are in the French system as a resident.

If you don’t live in France you’re unlikely to be interacting with systems like social security or education, but if you own property you will probably need to be in contact with the mairie on occasion.

Having a UK registered car could also cause you problems, as people who are resident in France are required to change the registration of their car to a French one. There have been reports of fines being issued at the border to people who presented a carte de séjour but were driving a UK-registered car.

So what should I do?

If you are reading this article with a mounting sense of dread and realising that it applies to you or someone you know, there are some steps you can take.

Firstly, try not to panic – throughout the confusing and stressful Brexit period the attitude of the French authorities towards Brits was mostly quite sympathetic, and we’ve seen no evidence of an official desire to persecute Brits.

Having said that, the longer you leave this situation the harder it is going to be to explain why you didn’t take steps sooner to regularise your status.

The best course of action will be simply to ‘fess up to having made a mistake.

The first port of call should be your local préfecture – check on their website to find details for how to make an appointment as many préfectures cannot deal with walk-in queries.

Explain that you made a mistake and you wish to hand back the WARP card – take with you as much documentation as you can pertaining to your situation in France, and if your French is at beginner level consider taking along a friend or neighbour who is a fluent French-speaker to help you explain your situation.

If you have received a letter from the tax authorities, go along to your local tax office, explain the situation and ask what you should do next. You are likely to be liable for late fees.

If you receive any kind of official summons relating to your immigration status, it would be a good idea to seek legal advice from a lawyer specialising in immigration. 

Regularise your status

You will then need to take steps to regularise your status.

If you decide that you want to make France your full-time home it’s likely that you will need to start from scratch on the visa process – but you should seek advice from an immigration lawyer on this.

If you want to keep your full-time residence in the UK, be aware that visits to France will now be curtailed by the 90-day rule. If you wish to spend more than 90 days in every 180 in France, you will need a visitor visa

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For members

LIVING IN FRANCE

Overstaying, working without a permit and polygamy – what can get you deported from France?

From committing a crime to overstaying your 90-day limit and even having multiple wives - here is a look at all the things that can get foreigners deported from France, and how likely this is in reality.

Overstaying, working without a permit and polygamy - what can get you deported from France?

If you’re living in France and you’re not a French citizen, there are certain scenarios in which you can be expelled from the country, and although this isn’t an everyday occurrence there are quite a wide range of offences that can see you kicked out of France. 

Process

In France, there are a few different deportation procedures for foreigners.

Expulsion – The first, which you may have heard about before, is “expulsion”, which means you must leave the country immediately.

French Interior Minister Gérald Darmanin recently made headlines after calling for the expulsion of an Imam for making anti-Semitic, homophobic and sexist comments, as well as speeches that were “contrary to the values of the Republic.” 

For the average person, being expelled from France is very unlikely.

Under president Nicolas Sarkozy, a 2003 law was passed allowing for three possibilities to expel foreigners who are already “integrated” into France – if they have engaged in “behaviours likely to undermine the fundamental interests of the State; that are linked to activities of a terrorist nature; or constitute acts of incitement toward discrimination, hatred or violence because of the origin or religion of persons.”  

In most cases though, “expulsion” only occurs if a person is living in France illegally (ie without a residency permit or visa) and they represent a “serious threat to public order.” 

Notice to quit – The more likely scenario for the deportation of a foreigner living in France is an OQTF (Obligation de quitter le territoire français) – an obligation to leave France.

The decision is made by your préfecture. You will be formally notified, in a document which outlines which country you are to return to, as well as the time limit for when you must leave France. 

This can occur following a prison sentence, or if your residency permit has been withdrawn (again, the most common scenario is following a criminal conviction) or if your application to renew a residency permit has been denied.

You can challenge an OQTF. In most cases, the administrative court responsible for handling appeals should offer a response within six weeks.

Barred from returning – if you have committed an immigration offence such as overstaying your visa or overstaying your 90-day limit, this is often only flagged up at the border as you leave France. In this circumstance, you are liable to a fine and can also be banned from returning to France. Bans depend on your circumstance and how long you have overstayed, but can range from 90 days to 10 years.

In practice, being barred from returning is the most common scenario for people who have overstayed their visa or 90-day limit, but have not been working or claiming benefits in France.  

You can be ordered to leave France within 30 days if you are in one of the following situations:

  • You entered France (or the Schengen area) illegally and you do not have a residency permit or visa. You can be immediately ordered to leave France under specific scenarios such as representing a threat to public order or being a “risk of fleeing.”
  • You have entered France legally, but you have overstayed your visa or overstayed your 90-day limit. If you stay more than 90 days in every 180 in the Schengen area without a valid residency permit, then you can receive an OQTF, although in practice this is not the most common response.

READ MORE: What happens if you overstay your 90-day limit in France?

  • Your residency permit application or your temporary residence permit has not been renewed or has been withdrawn.
  • Your residence permit has been withdrawn, refused or not renewed or you no longer have the right to stay in France (more on this below). 
  • You failed to apply to renew your residency permit, and stayed after the expiration of your previous permit. Keep in mind that once your permit expires, you can stay an additional 90 days in France if your home-country does not require a 90-day visa. However, in order to do this you must exit the Schengen zone and come back in to re-start the clock. 
  • You are working without a work permit and have resided in France for less than 3 months. A scenario where this might apply would be coming to France for under 90-days as a tourist (ie without a visa) and take a seasonal job. If you are found to have done this, you can receive an OQTF.
  • Other scenarios include being an asylum seeker whose application for protection was definitively rejected, or being categorised as a threat to public order (for those who have resided in France for less than 3 months).

Why might my residency permit be withdrawn or refused?

For those with a valid temporary or multi-annual residency permit, you might have your titre de séjour withdrawn in any of the following scenarios: 

If you no longer meet one of the necessary conditions for obtaining the permit in the first place. Keep in mind that if you have a salarié residency permit or a passeport talent, these cannot be withdrawn if you become “involuntarily unemployed” (meaning – you do not need to worry about potentially being deported if you lose your job). The best advice for this would be to request a change of status as needed rather than staying on a permit that no longer applies to you.

If you did not fulfil all the criteria for renewing your permit – this could involve failing to appear for an appointment you have been summoned to by the préfecture. 

If your permit was issued on the basis of family reunification, you could lose your titre if you have broken off your relationship with your spouse during the 3 years following the issuance of the permit. This does not apply in the case of death or spousal abuse, and there are exceptions for couples who have children settled in France. 

Other reasons might include:

  • Living in a state of polygamy in France
  • Serious criminal conviction (drug trafficking, slavery, human trafficking, murder etc.)
  • Illegally employing a foreign worker
  • Having been deported or banned from French territory previously
  • Being a threat to public order (usually terrorism related)

If you have a residency card, you can also lose your right to residency if you are out of France for a period of between 10 months and two years – depending on the type of card you have.

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