October 2010

"DER MÖRDER IST IMMER DER GÄRTNER"

THE MURDERER IS ALWAYS THE GARDENER

 

 

Mr. Reinhard Friedrich Michael Mey was born on December 21, 1942, in Berlin, and is a German singer-songwriter. I remember studying his lyrics in school and liking his dry sense of humor. In my opinion, this is probably the best song out there about scapegoats, along with the 1967 song from the Doors,

People are strange
"People are strange when you're a stranger,
Faces look ugly when you're alone."

The feeling that people take advantage of you, simply because you are a foreigner and therefore easy prey, is extremely common and is too often grounded in the reality foreigners face daily. It gets to the point that some foreigners develop paranoia, whereby they see suspicious actions all the time, and are ready to defend their rights at the drop of a hat. This attitude does not help in integration, nor facilitate building a good life in the new country. Immigrating as an adult seems to lead to feelings of deep uneasiness just about all the time, feelings that something is not completely right. This appears to be the case no matter how long the immigrant has lived in the adopted country. Learning how to control the suspicious feelings and the accompanying uneasiness is definitely the key to good integration. Yes, it is very easy to use the foreigner as a scapegoat, and this happens often in all aspects of life. The reality is, no matter how ugly it may be, that the foreigner/"victim" needs to learn how to handle the situation well, and this constitutes a double challenge. It is never easy to be an immigrant, and it requires working at least twice as hard to get half what the others get. Yes, this is not fair, but where is it written that life is fair?

 

 

MY OFFICE HAS MOVED
After some delay, the move occurred as I worked on this issue. On Friday, October 1st, the movers came and I hope to be back in full swing on Monday the 4th. The address is 7 rue Ganneron, 75018 Paris. Neither the phone nor the email has changed.

 

 

TAXES AND CHARGES DEALING WITH FOREIGNERS' IMMIGRATION STATUS
This could be an ideal starting place for a debate over what is fair in taxation and how the tax burden should be handled in order to make fairness possible. For me these are rhetorical questions, since I do not feel that I have any expertise in those fields. As far as income taxation is concerned, there are two opposite approaches, which can be summed up pretty much this way:

The European approach is that income tax should be higher for people who make more money. This progressive taxation is seen as making the system fair, since the wealthier contribute more because they have the means to do so.

The American approach, often endorsed by conservatives around the world, is that for a healthy economy you need leaders (bosses) and followers (workers). The leaders should be treated favorably regarding taxes because they run the businesses that create jobs and wealth. What you lose by lowering their tax burden, you gain from taxes related to jobs and sales.

I do not know whether either of these positions is the right one. Nevertheless, on related matters, what I see happening today in France concerns me a great deal. One could always argue that I see such a small part of the problem that my analysis is irrelevant, and that may also be right.

I started my business on July 1st 1997, and in all the years since then I have seen all taxes and charges directly related to a foreigner's right to live and/or work in France going up sharply. A few are paid by employers, and this sometimes discourages companies from hiring competent professionals because of the rising cost of hiring them. Most of these taxes and fees are paid directly by the foreigners themselves.

At the end of June 2010, there was a very sharp increase in two charges. The one for getting the carte de séjour vie privée et familiale for the first time went from 300€ to 340€, which exceeds a third of the net monthly French minimum wage, the SMIC. The yearly fee to renew a carte de séjour went from 70€ to 110€. (When I started, the first one was less than 100€ and the second one was free.)

Furthermore, the cost to an employer of being the first to hire a foreigner with a carte de séjour salarié rose very gradually over a number of years from 800€ to 900€. Then the French administration changed the method of calculation they used to determine the fee, and on January 1, 2010, it was assessed at 60% of the net salary up to a maximum charge of 2.5 times the minimum wage, or SMIC. Today this is equivalent to 1,055.42€ x 2.5, or 2,638.55€.

The worst thing is that this charge should never be passed on to the employee; the law penalizes employers who are caught doing this. In real life, the employer accepts the cost of hiring a professional, and considering the salaries paid for high-level jobs, 1,600€ is only a fraction of the monthly pay anyway so this cost ends up being seen as negligible. But 900€ is almost a month's net salary at minimum wage, so it looks like a lot of money to the employer, who almost always finds a way to pass the cost on to the employee. When I explain to employees that this is illegal, the usual response carries a lot of weight:

"This job is what gives me my carte de séjour and therefore I cannot take any risk of jeopardizing the relationship, so the extra cost is worth it to me since it allows me to keep my carte de séjour and stay in France. I know it is an unfair sacrifice but I do not have the means to fight it."

My only comment is simply that a French passport lasts 10 years and costs about 90€ to renew, and the French ID card lasts just as long and costs 25€. French people are quick to demonstrate in the street and go on strike; they also vote, so these charges are very reasonable. Foreigners, on the other hand, have very little support and next to no way to twist the government's arm, so it is totally safe, politically speaking, to increase the charges they pay, and there is nothing to limit them.

Many families live from paycheck to paycheck, and cannot add 110€ to the budget without giving up something else. I very strongly resent this policy of doing what is easy instead of what is fair. Imposing such heavy charges on foreigners who make less money than French people is punitive and discriminatory. The short-term consequence is great for the country's finances. However, most of these foreigners are here to stay, so sooner or later they will acquire French citizenship, or, if not their children certainly will, and then they might be tempted to get even.

I know that the riots in the Paris suburbs in 2005 had multiple origins, and trying to identify which reasons were the most significant is exceedingly difficult. That being said, contempt for any minority defined by race or religion always backfires. I am sure that this played a role in the riots, and this policy continues.

 

 

ARE FRENCH BUSINESSES CHEATING ON TAXES?
One can have endless debates about this topic too. So I will not get into whether the French social system is too expensive and therefore taxes are too high or whether this promotes cheating since they are seen as excessive and unfair.

The change that led to this result is that now the effort is focused on bigger companies, those with more than 200 employees. The new rule is that such companies are to be audited every five years, with smaller companies checked every ten years. It turned out that 63% of the companies audited were cheating. The most common things were:

  • 1 – Considering perks as business expenses when they are supposed to be treated as salary.
  • 2 – Claiming deductions related to low salaries.
  • 3 – Undeclared work, which many think of in terms of undocumented aliens, but which in fact, is a lot more pervasive within the French population.

The last part of the report was even more interesting: only 12% of small businesses were found to be cheating. This completely shattered the common view that French professionals and small businesses systematically cheat by dealing in cash so they do not have to declare all their income. I believe this results from an ongoing effort by smaller French businesses to be more and more professional. I wonder if this kind of data convinced URSSAF to accept the radical change that Auto-Entrepreneur status brought recently. The self-employed person pays taxes on the actual money earned, so the earnings are declared and the related taxes are paid at the same time, which was unheard of before. It would be sad if URSSAF had to terminate this status, which grants a significant benefit for the professional and enables the state to collect the taxes owed more accurately. There have been rumors that a law is being drafted to terminate the status at the end of this year.

 

 

THE PACS IN FRANCE AND SIMILAR FORMS OF UNION ABROAD
A little bit of background for people who are not familiar with the pact civil de solidarité or PACS. It was created in 1999, and significantly altered in 2005 to become almost identical to marriage. Some 175,000 couples chose this form of civil union over marriage last year, and 95% of them were heterosexual. (That should be noted because the PACS was originally intended chiefly for homosexual couples.) The 2009 number was up 20% from 2008, which itself saw a 40% rise from 2007. There were two PACSes for every three weddings in 2009, and the number of weddings decreased that year by 3.5%. It is clear that, ten years after it was launched, the PACS has become totally mainstream.

Maybe this explains the latest step taken by the French government. The problem can be stated this way: each country tries to deal in its own way with the controversial issue of gay marriage. In the Germanic and Scandinavian countries, allowing gay couples to get married has not stirred much controversy even though a minority opposes it. The culture of tolerance and personal freedom explains for the most part this appearance of consensus.

France and other Latin countries often fix problems by creating a new situation rather than changing an existing one. As far as I know, Italy and Spain are seriously considering creating their own versions of the PACS to diffuse the gay marriage controversy as much as possible. Also, it should be noted that most countries in Western Europe have a large number of stable unmarried couples, who are the primary target for the PACS.

Consequently, France's government is seeking a way to recognize the various solutions adopted in other countries. For example, a gay couple who married in Connecticut should have the same status in France as a couple united by a PACS, instead of being treated as two single people as is the case today.

 

 

OFFICE SPACE AVAILABLE FOR RENT
My former office space is approximately 35m2 and is now available. The monthly rent is 1,110.00€ TTC, payable quarterly. It has two rooms of about the same size and a small hallway. It is located in the courtyard and it is very quiet. The address is 52 rue Notre Dame de Lorette, 75009 PARIS.

 

 

OFFICE CLOSED FOR CHRISTMAS
I will celebrate Christmas in the U.S. and therefore the office will close on Friday, December 17th and reopen on Monday, January 3rd. 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.

 

Best regards,

 

Jean TaquetJean

 

Q & A

THE USE OF A MARRIED NAME IN FRANCE AFTER A DIVORCE

QUESTION
I have a problem with the francisation of one's name when becoming a French citizen. I became a French citizen in 1995 through marriage to a French citizen. At the time, no one explained to me the consequences of deciding whether to request the francisation of my name. I assumed that a married woman would take on her husband's last name the same way it occurs in America, completely obliterating the maiden name on all documents, and that it could be retained after divorce. I had no idea at the time that my husband's last name would be merely appended to my maiden name, and that after we divorced the right to use it would be taken away.

I have been told that it is nearly impossible to change one's name in France, and after calling the nearby consulate here in the USA, they told me there was nothing I could do about it. My ex-husband has agreed to allow me to use his name. However, since we were not divorced in France, there is no mechanism to have this permission documented on my divorce papers.

The French consulate said it would be possible for me to have my ex-husband's name listed on my passport as nom d'usage but did not mention which name would appear on my carte d'identité, permis de conduire, etc. I am hoping they will allow the nom d'usage designation on all my French documents.

I am planning to ask my ex-husband to write me a letter on papier libre giving me permission to proceed as above, to get it notarized, and to attach a copy of his passport. This is what the tribunal in Marseille (where we were married) is asking me for as proof that we are divorced, so at least I will have that on hand if it is ever questioned in France whether I have the permission of my ex-husband to use his name.

I wanted to ask you if there is any way at this point to legally change my name permanently to my ex-husband's last name? I no longer wish to ever use my maiden name again and plan to continue to use this name for the rest of my life, as it is part of my French identity, which is very precious to me. I do not want just to have this "droit d'usage" which sounds like it can be taken away by anybody at any time. Can it really be taken away? So how can I be sure that I can keep it for life?

ANSWER
There is more to your problem than what meets the eye, and answering it completely would pretty much mean writing a book about divorce and about French regulations regarding last names. Perhaps I can highlight some aspects of the issue and show you the extent, and therefore the limits, of your current situation.

First, I would like to answer your questions as they are asked:
"Is there any way at this point to legally change my name permanently to my ex-husband's last name?".

My answer is: absolutely not, since in France it is extremely difficult to change a name – with one exception, the francisation du nom. This legal term, unlike the definition you give, refers to the fact that, when a foreigner obtains French nationality, he or she can modify the first and last name in order to make them sound more French.

Your question
"I do not want just to have this "droit d'usage" which sounds like it can be taken away by anybody at anytime. Can it really be taken away?"

My answer
Once again, is: absolutely not. There is a very serious misunderstanding about the legal concept of droit d'usage. It means that you have the right to use the name for life, and it is virtually impossible for you to lose this right. Without getting exceedingly technical, this concept, droit d'usage, based on the Latin "usus," is the first of three concepts that defined the very basis for the right of ownership. The words themselves can be misleading.

Your question
"So how can I be sure that I can keep it for life?"

My answer:
The French consulate gave you the best solution, since in many ways the only person who has the right to allow you to use this name is your ex-husband. If he formally accepts this usage, then you are fine almost the entire way.

The key issue is related to what happens in France; in many ways, this is a French issue and you do not live there.

I would like to address further the issue you call francisation. French law recognizes only one name: the one that you are born with and that you are expect to die with. Only the state (the French Republic) can decide if you have the right to legally change your name. This can be done through a court procedure for people whose last names are deemed obscene, vulgar, or shameful. It can also happen if you become French by naturalization, as mentioned above. Just as many immigrants in the USA choose to simplify their names to make life easier in their new country, you can choose on the last page of the French naturalization form whether you want to have your foreign last name changed to something that sounds French, e.g. going from "Burke" to "Bourg" or from "Brown" to "Bron." There is a lot more to it, but I just wanted to illustrate what "la francisation du nom de famille" means.

Now, in your case, you became French through the procedure that allows your French spouse to pass his nationality on to you. Therefore, you never went through the naturalization process and were never offered the opportunity to modify your American last name so it sounds French. The issue you are dealing with is how French law handles the custom of wives using their husband's last name. This deals purely with the right of usage, not a change on any official document. It is something essential but often completely overlooked. In France, in your everyday life, you and the people around you all used your married name and nobody asked you to prove that you had the right to use someone else's last name. This is the customary aspect of the right. If you did anything official while you were married, you suddenly became Mme. MAIDEN NAME épouse MARRIED NAME: your birth name is used and your right of usage is acknowledged. Now that you are divorced but have secured the right to continue to use your husband's name, you are now Mme. MAIDEN NAME divorcée MARRIED NAME.

This is the issue I would like to address, since the normal consequence of a divorce is that the right of usage stops with the matrimonial relationship. Nevertheless, in certain specific circumstances – such as a particularly long marriage, or having had diplomas issued or books published, or having received professional awards, and so on, under the married name, it is possible for a divorced woman to retain the right to use the ex-husband's last name. This right is mentioned in the divorce decree, usually followed by the judge's reason for awarding it. Since your divorce decree was issued by an American court, and the issue was not raised during the divorce proceedings, this right was not expressly granted to you. Therefore the French authority would assume that you did not get it.

Hence, the only way for you to secure the right to legally have this last name recognized in France is to ask first your ex-husband and then a court to grant this right. But considering what the court procedure would take, and what is at stake here, I would think that the official letter written and signed by your ex-husband should be enough. The logic here is that the court awards the right when the wife asks for it and the husband accepts it. So you hold the essential piece of this puzzle, although it is not official. I cannot see who would challenge your right to use your ex-husband's name, considering the situation.

I would remind you that in the USA, one can change one's last name very easily; married women get everything changed, which takes a lot of time and energy, but their passport is issued with just the husband's last name. Quite often, American married women in the USA make their maiden name their middle name. This is absolutely unthinkable in France.

 

 

 

CHANGING JOBS AND RENEWING A CARTE DE SEJOUR SALARIÉ

QUESTION
I have had a carte de séjour in France for over six years: one with a student card, the rest as an employee. These last two years have been very rough. I have been employed most of the time but have changed jobs several times and I was underemployed for almost a year. So, to make a long story short, I have been without a valid carte de séjour over seven months and my upcoming appointment is in two months. A couple of months ago I changed jobs so that it is now a different one from the one I had when I submitted my request to renew my card last February. At that time, I showed the unemployment documents and a part-time contract, since I had lost a good job about six months before. So I believe that I will receive another récépissé and when they see that I have a new employer as they look at the pay slips, they will send the entire voluminous file once again to have the work contract reviewed and hopefully renewed. What makes me so mad is that this summer I finally received the approval of my right to work from the DDTEFP, the Main d'Oeuvre Etrangère (MOE) office, which will be useless when it was so hard to get.

I am sick and tired of having my life in France put in danger every time I change jobs because the economy is really bad in the retail business (I work in clothing). I have a daughter born in France going to pre-kindergarten here and I live with the British father but was born American. I feel stuck in France and cannot secure my stay here. All the options for a family carte de séjour require at least that he pass his British nationality to the child but he still has too many strings attached from the UK since he is not divorced from his wife and until this is done, he cannot do anything for us. So will I have to go through this all over again in February 2011 since technically this year I have again had two employers? When can I get permanent residency?



ANSWER
Your situation illustrates very well how it is possible to be continuously on the verge of losing the carte de séjour even though it is clear that you have anchored your life in France for good. The double effect of the economic crisis and the sudden increase in requirements to renew as an employee jeopardizes your right to renew your employee immigration status. Your private life grounds you in France but the legal ties are not strong enough to change your immigration status. You feel that you could or even should be awarded the carte de séjour on both accounts, but for each of them you are always close to the legal requirements issued by the prefecture yet you fall short, putting your entire stay in jeopardy. The prefecture is known to deny or postpone a decision because just one document is missing or incomplete.

I need to answer your questions before explaining, in the hope that this will make the explanation easier to understand.
"So will I have to go through this all over again in February 2011 since technically this year I have again had two employers?"

My answer
It is absolutely certain that because you changed jobs once again, the prefecture will apply this procedure again. I would even say that you would be lucky if it happened in February 2011, giving you the time to get ready. I fear that it could happen at your upcoming meeting and chances are that you will not be ready by then.

Your question
"When can I get permanent residency?"

My answer
For me, it is quite certain that that you are not even close to getting permanent residency status any time soon. The earliest you can secure the request for a carte de résident would be in February 2013

Now, I would like to first address the issue related to the most urgent issue, the renewal of the current employee carte de séjour, then define the concept of permanent residency since it can have more than one meaning.

 

I – RENEWAL OF AN EMPLOYEE CARTE DE SÉJOUR WHEN ONE HAS CHANGED EMPLOYERS
For the employee card these are the documents that the prefecture expects:

  • 1 – Proof that you registered with the unemployment office called Pôle Emploi right after you lost your last job; you need to update the situation with them every time.
  • 2 – Proof that you are entitled to the unemployment subsidy, with the amount and the duration of the payment, even though you might not have received the full amount if you worked some in the meantime.
  • 3 – The three legal documents proving that you lost your job against your will: these are l'attestation de travail, le solde de tout compte and l'attestation ASSEDIC.
  • 4 – The official labor contract to be approved by MOE, filled out and signed by both parties.
  • 5 – Proof that the company really looked for someone to fill the position when they hired you.
  • 6 – The seal of incorporation of the company (called K. Bis), less than three months old and an original, not a photocopy.
  • 7 – Copies of the last two pages of the register unique d'embauche, the legal notebook that lists all employees, equivalent to the payroll.
  • 8 – Copies of your employer's last two URSSAF declarations.
  • 9 – Copies of your employer's last two tax declarations, usually the TVA one.
  • 10 – Copies of your passport and carte de séjour, which you already have in the file.
  • 11 – A copy of your diploma if you have not already provided one.
  • 12 – A copy of the actual labor contract that was signed privately between you and your employer.
  • 13 – The original of the letter explaining the reasons for hiring you, which should indicate definitive and compelling reasons why you were the perfect fit.

This is only the beginning of the file, since you need to convince MOE, and prove with documents, that you are the only person for the job. Indeed, even this will not necessarily challenge the veto right MOE has over the request.

Therefore the second part of the file must address this issue, but it is never mentioned by the authorities, even though it is crucial for a normal position (i.e., not upper management or cadre supérieur; the MOE veto right is lost for positions paid a monthly gross salary of 4,000€ or more).

 

II – PERMANENT RESIDENCY
This can be understood as either acquiring a carte de résident, which lasts for 10 years and grants full immigration and work rights, or a private-life carte de séjour since most of the latter are granted on the basis of an existing permanent status (or at least one that is defined in that way even though many romantic relationships do not last until death and children cease to be dependents at age 18)

 

A – CARTE DE RESIDENT
Regarding the request for a carte de résident, bear in mind that its automatic issuance after 10 years or 15 years was terminated about four years ago. You must comply with the requirements related to your situation, knowing that there are some generic guidelines regarding this special request, i.e., a five-year stay in France earning at least minimum wage, fluency in French and proof of stable and solid roots and integration in France.

Five years
You already have lived five years in France, so you should meet the requirement. In most cases, the prefecture asks for five years holding a carte de séjour, which delays some applications. In some cases they ask for five avis d'imposition, the income tax form issued in August that summarizes the amount owed on the income earned the previous year. This often means at least one full extra year is required before you can submit the request.

Earning minimum wage
For five years, you must also have had a net income exceeding the minimum wage, which is currently about 11,000€ per year. One would normally think that if in one year your income dropped below this, then it is a "blank year" and you just add another one. In some cases, however, the préfecture demands five consecutive years with the required income in order to prove sufficient integration. As you can see, each of these elements is analyzed from several angles.

Fluent in French
This guideline is very subjective, since the civil servant does not give a standard test, and therefore I cannot give a measurable level that would guarantee passing except complete bilingualism, which is unrealistic for most applicants.

Roots in France
The civil servant evaluates your roots in France and how stable you are here, which in cases like yours means how stable you are in your job. You pretty much need about two years in a job to prove enough stability. This puts you in 2013 minimum. Bear in mind that anything can be used to question your stability in France, including frequently moving, going through a divorce or separation, long stays in the home country, and so on.

In closing this section I would like to emphasize that the list of documents issued by the prefecture must be interpreted a certain way, since the proof of stable and solid roots and integration in France is not mentioned as such in the list. In many ways, the list is just a base to work from; applicants should write a motivation letter and bring, in addition to the expected documents, everything they can think of that clearly points to complete integration and deep roots. The latest change of law shifted the focus from the length of stay to proof that the applicant deserves the carte de resident.

 

B - PRIVATE LIFE CARTE DE SÉJOUR
There are so many grounds for issuing this card that it would be just plain boring to list them, never mind explaining them. In your case, since your relationship with an EU citizen cannot legally be used, your request would be based on the American nationality of yourself and your child. The provision that you would use is Article L 313 – 11 – 7º of the CESEDA, which has been drafted in a very confusing way which is difficult to use. In short, the foreigner must prove strong, lasting ties with France, with the proof depending on the nature of the ties. In your case, you must prove that you have had family ties in France for a minimum of five years. Since your daughter was born in France, when she is at least 5 years old you will have a good chance of getting this card. If everything works well, assuming your child is about 4 now, you could try in February 2012. This means you could ask for a carte de résident the year after, in 2013. At that time, her French birth certificate and proof of schooling in France will be the most obvious documents to include in the file.

As you can see, you have urgent and pressing matters to address now, and you will not be off the hook for a long while. My advice to you is to stay focused on the immediate issues, your upcoming appointment and the February anniversary date of your carte de séjour, which will be difficult times for you. If you handle them very well, then you will be out of immediate danger and you will have more options. My advice is that you should not take any chances: have your employer fill out the forms and give you copies of all the documents needed, and prepare a perfect file even though it was not requested for the meeting in two months. You know by now that this is what they will expect from you once they find out your situation. So your best bet is to convince your employer to do it right, and right now. I wish you good luck; you will definitely need it.