“Déjà Vu”

April 2017

From Wikipedia: “Déjà Vu is the second album by Crosby, Stills & Nash, and their first in the quartet configuration of Crosby, Stills, Nash & Young. It was released in March 1970.” This French expression is common enough in English that the band named one of their albums after it.

Many people see the Brexit “leave” vote and the election of President Trump as a series in which the French presidential election could be the next event to come, with populist views winning votes and, in the case of France, a far-right president adopting isolationist policies and severely limiting immigration.

We know that recent polls have been relatively inaccurate and polling agencies are now careful to explain that the margin of error is substantial so the result of the election cannot be predicted. I believe the pollsters are going from one extreme to the other, but maybe that is not such a bad idea. The presidential campaign is now running full blast, with a debate, polls and media coverage, and almost daily findings of illegal conduct by prominent politicians. Feels like déjà vu of the American campaign.

Foreigners too often repeat the same mistakes again and again, thinking they are doing the right thing since it is what they have always done back home. In this month’s column, a non-EU citizen asserts to the prefecture that she has rights and should not be treated in such an unfriendly way being required to,go back there again and again, when in reality she is an undocumented alien and the way she is being treated is in accordance with her illegal stay in France. Another is convinced that since she has not paid for certain services, she is not entitled to them and is outraged as a result, although as it happens the French administration makes it possible to retain the right to services without paying for them for a while – even a long while.

The title Déjà Vu is a reminder that if you feel like a problem is coming up repeatedly, you may be doing something wrong. As a foreigner you will often be wrong, at least at first and possibly for quite some time.

 

DETAILS ON HOW FRENCH AND US PENSIONS WORK TOGETHER

Another reader comments, regarding the Q&A in February’s column regarding the Windfall Elimination Provision (WEP):

“The writer said: “I was, however, shocked to find out . . . my US benefits will be cut by 40% to 50% unless “vous est attribué dans le cadre de l'accord entre la France et les Etats-Unis” ’.

“The writer's specific case may cause a reduction of 40% to 50% (or more), but the full story of the application and calculation of the WEP is more complicated. It is often misunderstood, but the TOTAL American Social Security benefit may NOT be reduced by a specific percentage. That is because while a French pension generally returns 50% of eligible earnings, the US calculation is ‘progressive.’

“After a person's best 35 years of earnings are indexed for inflation, the lifetime average monthly wage is calculated. The pension paid on that figure is 90% of the first ‘bend point’/tranche, which in 2017 is $885. (So the pensioner gets 90% of $885 = $796.)

“To this is added 32% of the average lifetime monthly wage between $885 and $5336, and to this is added 15% of any amount above $5336. (There is a maximum pension because contributions are paid only up to a an earnings ceiling, just as in France.)

“This hints at the reason, sought by the writer, of why he is ‘penalized.’ The American calculation system is weighted toward people with a lifetime of low income so as to help assure they are not in poverty once they retire.

“If the worker has earnings unknown to Social Security, such as foreign employment, the calculation is distorted. The person may very well have had a high lifetime income, but the pension would be calculated as if he did not.

“The WEP therefore changes the percentage of return for the first bend point from 90% to 40%. In 2017, the return on the first bend point under the WEP would be $885 x 0.40 = $354 instead of $796. The maximum reduction is therefore $796 - $354 = $442. There is no reduction of amounts calculated for the 32% and 15 bend points.

“That's the first thing. The second is that the WEP has a limit. The reduction cannot be more than 50% of the foreign pension. Again, this is to protect people with small pensions. So if your writer had a French pension equivalent to $700, the WEP reduction would be $350, not $442.

“The third condition says that anybody with 20 or more years of ‘substantial earnings’ (an amount defined annually) will have the WEP reduction lowered by 5% per year, such that a person with 30 years of substantial earnings in the US will have NO WEP reduction because of foreign earnings. This is not the case of your writer, who has 10 years.

“The fourth point is the most fun. The bilateral social security accords are called totalization agreements. They say that if a person does not have enough units to qualify for a pension in one country, he may use units from the other country. So if your writer had only nine years' work in the US, where ten are required, he could ‘borrow’ four trimesters from his French employment and thus be eligible for a US pension. This is totalization.

“It is important that the foreign (e.g. French) credits add nothing to the AMOUNT of the US pension; they just make the person lacking units eligible for one.

“As for Americans, the agreement says that if totalization was needed to qualify for the French pension, then there will be no WEP reduction! THAT is probably the meaning of: ‘unless “[il] vous est attribué dans le cadre de l'accord entre la France et les Etats-Unis.

“The agreement's totalization provision must be invoked to avoid WEP. According to the CNAV, this will happen automatically if application for the French pension is made using the application (form SSA-2490) via the US Social Security website. To make certain of this, the issue should be discussed with the FBU officer at the US embassy.

“I know this has worked, although it doesn't seem to make sense since only one quarter is needed to claim a French pension, but US Social Security explains: ‘Under French law, a worker can qualify for an old-age pension based on as little as one calendar quarter of contributions but the benefit amount is reduced for workers with less than 150-160 quarters (depending on year of birth). Under the agreement, France will compute an old-age pension based on French credits alone as well as a prorated benefit based on U.S. and French credits, and then pay whichever is greater.’

“On a related matter, Americans receiving US Social Security retirement benefits should know that their US or non-US spouse is usually entitled to his/her own retirement benefit, based upon the primary earner's record, which is up to 50% of the primary worker's benefit.

“This is also true for divorced spouse(s) for each marriage that lasted at least ten years and provided the spouse(s) has/have not remarried.

“The spouse(s) can also get a survivor benefit (réversion), which is 100% (unlike the French 54%) if the survivor waits until full retirement age, and is not means-tested. This applies to divorced spouses if the marriage lasted ten years. Unlike France, US Social Security does not pro-rate benefits among multiple spouses; each gets the survivor benefit.

“The WEP reduces a spouse benefit but does not reduce a survivor benefit!”

 

THERE IS A LIMIT TO A NOTAIRE’S PROFESSIONAL RESPONSIBILITY

I frequently find new precedents giving more responsibility to notaires and thus extending their professional responsibility and liability. However, a recent precedent puts a clear limit on how far a notaire needs to go to protect the interests of property buyers.

In 2008, a couple in the South of France bought a mazet or maset, a small rural building of a single room, in bonded masonry (which may or may not be covered with mortar) and roofed with tiles. Such structures are common in Languedoc, particularly in the departments of Gard, Ardèche and Hérault, where until the early 20th century poor city dwellers used them as week-end houses.

During the course of the purchase procedure, the couple explained that they wanted to upgrade the mazet into a real house. Later they learned that the mazet was not considered a house to start with and therefore could not be used as a permanent dwelling, so their building permit request was denied. They sued both the seller and the notaire for not explaining that their plan was impossible to achieve.

The Cour de Cassation ruled against the couple, arguing in plain terms that you know what you are buying; for example, no one would buy a toolshed and decide to make it into a house. I am sure the notaire had told them that the property was zoned as farmland, which limited its usage. I can understand that foreigners who want to buy cute real estate on the Riviera end up being fooled since mazets look like tiny houses and are at least 100 years old.

For more information (in French), see http://sosconso.blog.lemonde.fr/2017/01/17/avant-dacheter-une-maison-pour-la-retaper-on-verifie-quon-en-aura-le-droit

 

BEING MARRIED AND CREATING A HOUSEHOLD FOR FISCAL PURPOSES

I have occasionally had to deal with cases where one spouse, often the wife, has settled in France and holds immigration status while the husband continues to work in the USA and lacks any immigration status in France. For the French resident spouse, obtaining a visa and later a carte de séjour is not much of a problem but getting a carte de résident is more complicated, since one must prove a minimum of integration and roots in France. Having a spouse who live outside of France without starting divorce proceedings indicates that ties with the USA are still strong, which can militate against the request. My last such client held a carte de séjour visiteur for ten years before she got the carte de résident.

On the fiscal side, the situation is even more interesting. Tax form 2042, which everybody fills out with their basic information, treats couples who live apart, without a legal separation, the same as divorced couples (although the husband can decide to become a French fiscal resident, since the rest of the family lives in France). When my client first told the French tax office that she was married and that her husband lived in the USA, the tax office considered her to be separated, which infuriated her since they are indeed married and are a strong couple. Nevertheless, she confirmed that her husband lived in the USA and had no ties with France except through her. Finally, she said, the tax office essentially gave up and accepted that she was happily married – but still taxed her as a single woman in France.

Some people do not care much how the administration labels them as long as it does not interfere with their life. I have had clients who pretty much stated, “They can decide what they want; it doesn’t bother me.” Others, like this woman, take the misrepresentation personally but do not want to change their situation. They are determined to set the record straight, even if it does not change anything in their life. I find it very interesting to see how different the reactions can be in this situation.

 

OFFICE TO BE CLOSED JUST BEFORE SUMMER

The office will close for less than two weeks starting on Thursday June 8th, reopening on Wednesday June 21st. As always, I will be reachable by email for emergencies and important matters. The service I offer of receiving mail for clients will continue while the office is closed. This time I am leaving France and email will truly be the only way to reach me while I am gone.


Best regards,

PROPER IMMIGRATION PROCEDURE FOR THE SPOUSE OF AN EU

QUESTION

I am an American citizen married to a Spanish citizen. We now live in Paris, where my husband is working. Although European law guarantees the right for me to stay with him and work here, I have experienced quite a lot of trouble with the local prefecture. I explained to the prefecture that Americans married to Europeans do not need visas to enter Europe. I even have letters from the UK and NY French embassies confirming this. It is also stated on the page of the French Ministry of Foreign Affairs ("Nationals exempt from the short-stay visa requirement under Council Regulation (EC) No 539/2001 of 15 March 2001 and holders of a residence permit for family members of Union citizens may travel to France without a visa and apply for a residence permit"), and on the page of the French Consulate in NYC ("Family members of a Union national who does not require a short-stay visa do not require an entry and stay visa, whatever the duration of their stay.")

 

The Nanterre prefecture, however, gave me an appointment for my carte de séjour only for April 12th. This means that I will overrun the 90 days of my visa waiver stay. What should I do? Is it possible for me to go somewhere to extend it, or should I go in and out of the Schengen area (e.g. London)? I am afraid that it is much more difficult for me to go back and forth to the US.


UP

ANSWER

I am not sure you clearly understand your immigration status in France, and hence I am afraid that you could make some seriously wrong decisions.

It may come as a surprise to you but any non-EU citizen who wishes to immigrate to France must have an immigration visa to comply with the normal legal procedure, despite the official documents from the French administration and the EU regulation that you have quoted. While European Union legislation does indeed require member countries to allow citizens of member countries and their spouse and children – even non-EU ones – to live anywhere in the European Union, the question is when does the French administration (in your case) consider someone to be a resident of France.

The answer is: you must be able to prove that you have been in France more than three months. Before that, your stay is considered to be for tourism. The fact that it could be an illegal stay at first is irrelevant, but when you arrive at the prefecture this question becomes critical, as you have seen.

In the view of the prefecture, you are not in France legally because you do not hold an immigration visa. But you had no way to obtain such a visa at the French Embassy in Spain. French consulates are now systematically pushing for the non-visa procedure, for reasons I can only guess at; their reasoning seems to be: “Why are you asking for a visa when you can get this status by going directly to the prefecture and obtaining legal status?” What they do not say is that they are promoting an illegal procedure. I find this to be an absolute disgrace on the part of civil servants who are part of the French administration and are supposed to be there to enforce and respect the law.

The appointment the Nanterre prefecture gave you comes after your “tourist” status expires because only then will you have the right to request a carte de séjour once your intention to make a permanent stay in France is clear. That is why I am angry about your situation. Holding a long-stay visa would have made the situation clear from the first day of residence and you would have had legal status during the entire procedure. Now you must first become an undocumented alien (and to some extent be treated as such) in order for you to qualify as a non-EU citizen living in France with an EU spouse.

A side issue here is that you are lucky that the civil servant gave you an appointment so quickly. Strict application of the law would have required you to have stayed in France more than 90 days before even going to the French administration, acknowledging your illegal status, to request an appointment. I am sure you do not feel you received favorable treatment, though, which is why I think it worth explaining.

As for your question about leaving France to stay a tourist and renew the 90-day visa waiver, I must emphasize that you are not allowed to leave France until after the appointment! If you were to leave France, as you suggested, you would be in violation of the Schengen rule that any three-month tourist stay in the Schengen area must be followed by at least three months outside the Schengen area before one can visit again. In the worst-case scenario, you would no longer qualify for the procedure you have just started, since you would not have stayed in France long enough to submit a request for a carte de séjour.

You need to be aware that the file for your appointment is not as easy to prepare as it might appear. Think of your European husband as the “tractor” and yourself as the “trailer”: Consequently, even though you are the one asking for the carte de séjour, the vast majority of the file is made up of “his” documents, which prove his anchorage in France. Also, the civil servants will be quite stern and severe in the way they review your documentation, mainly because they will consider the procedure to involve an undocumented alien asking to be granted legal status. This should not scare you, however, because of the legislation you have quoted. The outcome is a foregone conclusion, but the procedure can be hellish because the administration will view the documentation as insufficient to meet what they consider to be the requirements.

 

QUESTION

I found this statement on a French administration website about the new rules for spouses of EU citizens. (The link is below.) I am interested to hear your interpretation of this:

“La demande de titre de séjour n’est obligatoire que si vous êtes ressortissant(e) d’un pays tiers à l’UE/EEE/Confédération suisse et que vous souhaitez exercer une activité professionnelle.

Si vous êtes membre de famille d’un(e) citoyen(ne) de l’UE/EEE/Confédération suisse, vous pourrez exercer toute activité professionnelle de votre choix, salariée ou non-salariée, sans avoir à demander de titre de séjour.

Si vous le demandez, vous pouvez recevoir un titre portant la mention « Carte de séjour de membre de la famille d’un citoyen de l’Union ».

http://accueil-etrangers.gouv.fr/demande-de-titre-de-sejour/vous-etes-ressortissant-e-de-l-ue/vous-etes-membre-de-famille-d-un/


UP

ANSWER

I would like to translate this so I can show how poorly it is written.

The request for immigration papers is only mandatory if you are a national of a country outside the EU/EEE/Switzerland and you wish to work.

If you are a family member of an EU/EEE/Swiss citizen, you can exercise any professional activity you choose, as an employee or not, without having to an immigration card.

If you ask for one, you can obtain a card marked “EU family member carte de séjour”

This is potentially very misleading, and I see how many people would read it the wrong way.

Here is what I read, knowing the system:

The first paragraph could lead to either of two conclusions:

  • If the spouse of an EU citizen wants to work in any capacity he/she must have a carte de séjour
  • If the spouse of an EU citizen does not want to work in any capacity he/she does not need a carte de séjour.

I have helped many couples where the non-EU spouse came with no documentation and eventually, when it became needed, went to the prefecture to obtain the card. The regulation is very misleading since it gives the impression that it is OK to have no documentation as a non-EU citizen married to an EU national.

 


UP

IS IT NORMAL TO GET PUMA COVERAGE WITHOUT PAYING?

QUESTION

In your Dec-Jan newsletter you said you would be discussing the potential problem of URSSAF not billing holders of the titre mention visiteur for the premiums for PUMA in 2016 when they renew their titres at the prefecture. I have eagerly awaited your comments, but your Feb and March newsletters did not mention this.

We have been in the French health care system for several years and have been billed quarterly by URSSAF based on the income declared to CPAM. When the change was made from CMU to PUMA, CPAM indicated that our renewal (Sept 2015) was approved but they did not indicate what the premiums would be and they told me it was up to URSSAF to figure it out. URSSAF indicated that their procedures had not been worked out so they could not send a bill despite the fact that we declare our incomes and have an avis d'imposition. Articles have been written on how basically no premiums were charged in 2016 so the prefecture should be well aware that it was impossible to pay the premiums, as URSSAF could not bill. And the prefecture does not like people to not pay for assurance maladie.

Under PUMA you do not have to do any renewal paperwork; you stay enrolled until you tell them you no longer qualify, so we did not have to do any renewal paperwork in Sept 2016. We have had no problems using our cartes vitales and we have not received nor paid anything concerning premiums.

What has been your experience with this, and what problems, and answers, should we anticipate at the prefecture for our renewal?


UP

ANSWER

I had hoped URSSAF would address this issue sooner rather than later, giving a definitive response on this situation – hence my overly optimistic guess as to when I would address the matter – but nothing has come out yet that we can count on. I wanted to publish the payment schedule URSSAF needs to put in place to collect the 2016 and 2017 premiums. I was told that something would happen in the first quarter of 2017, and when it did not, the next message was that it would be in the first half of 2017, but experience indicates this is far from certain.

Remember what triggered the change from CMU to PUMA. Under CMU, the insured individual was either the primary provider or a dependent. But with couples increasingly divorcing and families – married or not – splitting, the result was a coverage gap, sometimes of several months, for former dependents. The worst situation, and the most common, was when a wife and children moved out and she had to create an account on her own and have the children linked to her instead of the husband. Such families could be left uninsured or in a dubious situation for several months, leading to serious problems if the woman or a child needed serious medical attention. Now under PUMA, there is no adult dependent and a housewife has her own account even if she is not contributing. Should she become single with children, her account already exists and moving the children from one parent to the other is quick and easy. I totally approve the rationale for this new policy.

Now the only people whose situation is anomalous are foreigners covered by this program who fear that their coverage is in danger since they have not paid for a year. Many have made considerable effort to pay into the system – but until URSSAF states how much is owed, it will refuse to receive payments. Their fears are groundless, however. Here is why.

The vast majority of people living in France are covered because they work or have worked recently, and therefore they are not affected by the lack of premium information. Employees and self-employed people continue to pay social charges. People receiving unemployment also pay some social charges that pay for their health coverage.

Most of the people who had CMU coverage and now are in PUMA are very poor French nationals who were not paying into the system and thus see no difference between CMU and PUMA in this respect.

Therefore the ones affected are a minuscule minority of foreigners who choose to be covered by the French public system and have an income of more than 8,653€ a year (721€ a month). Since the prefecture demands proof of an annual income of 14,000€, this situation is extremely rare.

You asked, “What has been your experience with this, and what problems, and answers, should we anticipate at the prefecture for our renewal?”

Unfortunately, the prefecture seems to be totally unaware of this situation, and the initial reaction I have encountered several times is: “You are getting the coverage for free and therefore your card request should be denied.”

I have worked hard with some clients to get documentation from URSSAF indicating that the payments will come and this is just a delay. I was able to obtain another appointment three months later, explaining that the documents showing taxable income indicate that the coverage was not free and that we had URSSAF documentation showing that we tried to obtain the bills. This delay enables us to better document the situation, and hopefully we will get a bill as well as the schedule of payment before the day of the meeting. But right now I am less and less hopeful. I am getting seriously concerned about how to convince the prefecture that this is an error originating in the French administration; in this particular case there is truly no alternative solution since there is a very serious pre-existing condition.

For you, the only option I can think of is pestering URSSAF until you get their acknowledgment of the situation, and then using it wisely at the prefecture.

 

DISCLAIMER

Please forward this message to all those who would be interested in its contents. The information contained in this newsletter is intended as exclusively general information. Therefore, I strongly urge readers to seek professional guidance concerning the legal and tax matters mentioned. This newsletter is intended as a general guide and is not to be taken as professional advice

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