WON’T GET FOOLED AGAIN

November - 2014

The song "Won't Get Fooled Again," by the English rock band The Who, written by Pete Townshend, is found on the 1971 album Who's Next. Many consider it an anthem for the 1970s generation protesting the Vietnam War and the establishment in general.

Decades later, many people, especially foreigners, may continually feel that people out there are waiting to take advantage of them. As I often say, this impression is far from always being true. A recent example: at a branch tax office, at 4:15 on a Friday afternoon (minutes before closing time), the branch manager asked one of my clients to come back on Monday, after delivering what appeared to be a lecture about Americans coming to France and working without any authorization. My client felt personally attacked and feared a complete audit, and so was very afraid of what could happen on Monday morning. But all the manager wanted to do was offer a compliment about the fact that the business had been duly registered and everything was in order; she just wanted to express her appreciation for what, after all, should be the norm, i.e., compliance with the law.

Knowing the IRS, I fully understand how such an encounter could be completely misunderstood, leaving the foreigner worried sick the entire week-end.

AUTO-ENTREPRENEUR STATUS AND HOLDING A STUDENT CARTE DE SEJOUR
Some situations, however, may be the exact opposite: the foreigner feels reassured by what appears to be caring guidance, when in reality he/she is being advised to do something criminal with severe adverse consequences. Here again is a recent example: an American student taking an intensive French course is offered work as an English teacher by a small school. Instead of proposing the normal employee position that would be compatible with student immigration status, which comes with the right to work as an employee for 60% of a full-time salary calculated on an annual basis, the employer advises my client to become an auto-entrepreneur. The main reason put forth is that it is supposed to be simpler and cheaper, which is true for the employer but not for the employee. The worst thing is what the foreigner is never told: this self-employed fiscal status is completely incompatible with student immigration status. So when it is time to renew the student status, the préfecture easily finds out about the situation and refuses the request to renew the student immigration status even though the foreigner complies with all the requirements to obtain the student carte de séjour.

This major violation of the law regarding working in France is a very good reason to refuse such a request.

It is astonishing how often I am asked about this same situation through emails and phone calls as well as my sessions at the church. I have the feeling that I am confronting an epidemic of this wrong decision turning disastrous every single time. If you are a foreign student who is considered to be enrolled full time at a university or community college registered with the Ministry of Education, you have the right to obtain a student immigration card.

The news should be spread as quickly and thoroughly as possible. Way too many people are being misled into a disastrous situation, feeling secure in their choice, since the employer is advising them to do it and even helping them register (URSSAF issues the appropriate documents upon receiving the registration request). The foreign student is being completely fooled by what feels like the right thing and everything goes smoothly and nicely, which is a change for once when dealing with the French administration.

I repeat: the student carte de séjour only allows one to work as an employee and nothing else; there cannot be any kind of registration of any kind done by the employee in France. And French law requires teachers in a school or agency to hold employee status. So requiring auto-entrepreneur status for a teaching job is the second major violation of the law in such situations.

It is very, very hard for foreigners to differentiate between people who are genuinely helping and those who are deceitful. The worst part is that the biases we too often bring with us from the home country can create a false sense of security or danger. In short, as a foreigner in France, do not trust your gut reactions: they can be wrong more often than right. You are most assuredly a fish out of water.

ATTESTATION URSSAF DE COMPTE À JOUR FOR CMU INSURED
The following situation may sound odd, but it illustrates a much bigger issue. The préfecture always prefers getting confirmation that an applicant for renewal of immigration status is up to date on all necessary payments. In one recent case, the applicant had registered with the French public health coverage as not working in France. This program, part of the Assurance Maladie, is called CMU, which stands for Couverture Médicale Universelle. The payments are made to URSSAF, even though CMU registration is for private individuals rather than self-employed people. This oddity creates some difficulties. The préfecture’s view is that because it is paid to URSSAF, the normal procedure for the self-employed should be followed and the applicant should have a special statement from URSSAF that there is no outstanding debt. URSSAF rightfully considers these people non-professionals and therefore is very reluctant to issue such a document since a private individual does not need to prove that no money is owed, especially since the coverage remains whether the money is paid or not. Thus, even though this health coverage is well accepted by the préfecture, obtaining the payment document has become an unpleasant task, as one often has to go to a nearby URSSAF branch and explain in order to obtain it (it is very rarely sent in the mail). This illustrates quite well the difficulties one has to deal with when two divisions of the administration ignore each other’s policies and requirements, leaving the individual too often stranded in the middle.

OFFICE TO CLOSE FOR THANKSGIVING
My office will be closed from the end of Thursday November 20th until 9AM on Wednesday December 3rd, instead of for the usual Christmas vacation. 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. I will let individual clients know how to receive or retrieve their mail during this period.

I will also close the office for one week over Christmas since I will be celebrating out of Paris with my family.


Best regards,
Jean Taquet

CARTE DE RÉSIDENT - ISSUE WITH CURRENT STATUS & LABOR CONTRACT

QUESTION

I need some advice regarding how to obtain the carte de résident, which has a ten-year validity. I have been living in France holding a carte de séjour called « scientifique, » and have had several ongoing CDDs, all for the same employer and in the same lab, for more than five years now. During that time I got married and my wife is an non-EU citizen who worked in IT for more than three years in France. We also have a one-year-old daughter born in France and my wife stopped working to take care of her.
My CDD contract is ending soon and I do not have a definite answer for another job right now. We would like to continue to live and work in France. So we thought of applying for a carte de résident on the grounds that I have lived in France for more than five years. I do not speak good French but my wife does and she has also taken language courses.

I want to know our chances of getting the ten-year card given the condition that we both are going to be jobless soon. Do you have any advice on how can we increase our chances?


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ANSWER

I believe you are focusing on the wrong issue. Therefore, I would like to address what I see as the most pressing issue before addressing the carte de résident question, which is an important topic for you, for obvious reasons; it is out of reach for you right now, but that could change soon.
The very first thing to address is your current immigration status, since it is a little out of the ordinary, a fact that has good and bad aspects.

The scientific immigration status often grants a three-year carte de séjour, so I assume you received your second one two years ago. The rule is that this kind of card cannot be renewed for a third three-year period. So, no matter what you wish to do, you must plan on changing your status, which means obtaining a carte de résident or a different carte de séjour. The bad news is that it is not possible for a scientific carte de séjour holder to ask for a carte de résident.

The logic here is that the préfecture has only had one chance to review the applicant’s situation in France, which is too little to have a good grip on the situation. Also, scientists cards are linked to special contracts for specific positions. By and large, they are easier to get than other types, mainly because there is almost no control done by the Main d’Oeuvre Etrangère (MOE) office, since the card is issued for a specific employer and a specific mission. If the mission is over or you lose your job, you lose the card and the right to live in France. There are always exceptions, but they are just that, so you need some exception trades to offset this.

To obtain the carte de résident one must have a very stable life that demonstrates an ability to stay in France for a long time because the person is well integrated. Having a CDD is OK for your current type of carte de séjour but makes it virtually impossible to obtain a carte de résident. The reasoning is that your professional anchor in France is quite weak. The residence card requires considerable integration in France, with the prefecture verifying that:

  • – you have spent a minimum of five years in France,
  • – your earned income exceeds the French minimum wage (called the SMIC), which amounts to 14,000€ annually,
  • – you have had a minimum of four tax assessments a request that can mean the applicant has spent closer to six years than five in France,
  • – you have fully secured your lodging, which means you have a lease or title on your home in your personal name or jointly with your spouse,
  • – you have good knowledge of French and some general knowledge from living in France,
  • – you have a stable, life in France.

You may feel well integrated, but you fail to comply with enough points that I believe you will not be able to obtain the ten-year card now, according to the information you gave me.

Now I need to address even more bad news. The CDD issue means you will have a lot of difficulty obtaining another carte de séjour.

Here are your options for obtaining another type of card:
1. Carte de séjour mention salarié
Because you have been on CDDs all this time, you will have trouble getting a carte de séjour mention salarié unless the duration of the CDD when you submit your request is sufficient for the MOE to approve the right to work, and then the préfecture to issue a carte de séjour for the remaining length of the contract or one year. The logic here is that if the right to work exceeds six months, a one-year card is issued.

2. Carte de séjour mention vie privée et familiale
You now have a family in France, with a spouse and a child. But you three have not been a family long enough to qualify for the carte de séjour mention vie privée et familiale. Ideally you should be married more than five years to qualify for this status. So this is not a viable solution right now.

You might qualify for another card but I do not have enough information from you at this point to know which one. Therefore I am seriously uncertain what carte de séjour you should apply for. Furthermore and I am afraid this will add to your hardship if you do not get a new CDD when this one ends, you will only be entitled to unemployment benefits in France if the carte de séjour you hold at that time grants you the right to be an employee. This means you run a rather high risk of losing this financial support unless you find a way to obtain a carte de séjour mention salarié or the one called compétences et talents, or vie privée et familiale. Considering that you are the only one working right now and you support a family, this is an issue that cannot be overlooked.

My advice is to give up the idea of obtaining a carte de résident for now, and that you wait a minimum of two years. You should review all your options and focus exclusively on securing whatever carte de séjour you can qualify for that grants you the right to be an employee in France. The lowest level of carte de séjour that carries this right is travailleur temporaire, and the right to work it bestows is limited to one employer and one position. This would not be too much of a handicap for you, since you would be applying based on the CDD you have at the time you request the new status. This situation shows how absolutely critical it is to have a labor contract when renewing one’s immigration status.

Good luck.

TONTINE AND CHILDREN OF A PREVIOUS UNION

QUESTION

My husband, a British citizen, and I, an American citizen, have been legal and fiscal French residents for years. My husband has children from a prior marriage, and I have too. We purchased our home in July 2010 en tontine, having been told that should either of us die, the home would pass to the surviving spouse as if he/she were the sole purchaser at the time of sale. That surviving spouse would have the right to sell the house without any need for agreement by any children or could live in it until death and then it would pass to the surviving spouse’s children. Now we are told that this is not the case: that yes, the surviving spouse can live there until death; but no, the surviving spouse cannot sell the property and retain the proceeds as his/her property. Can you please clarify this for me? The house is paid for. I am feeling very vulnerable right now.


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ANSWER

As it happens, both of these statements are true and compatible: Yes, the surviving spouse can live there until death, « and » No, the surviving spouse cannot sell the property and retain the proceeds as his/her property.
I must first explain in detail what the tontine clause does, especially at time of death. Then I will explain French inheritance/estate law. We will see a spectacular collision, but also how to fix the situation.

1. La tontine
The tontine clause, at time of death, does just one thing in a radical and definitive way. The ownership of the deceased’s property goes exclusively to the other partner(s) in the tontine , who is/are mentioned in the title to the property and cannot be changed. No third party, outside the tontine, can have any possible claim of ownership on the portion owned by the deceased. Things cannot be clearer.

2. French inheritance law French estate law makes it utterly impossible, regardless of any schemes to the contrary, to disinherit one's children, whether blood or adopted. French inheritance law sets a ratio of ownership on the complete estate that the estate must pay/compensate/grant the children, no matter what the deceased organized. This is a lot more about debt and liability than ownership.

The collision of these two provisions gives the following results.

  • 1 – The notaire opens the estate of the deceased.
  • 2 – The notaire applies the tontine clause first and transfers the ownership to the surviving partner.
  • 3 – The notaire documents the amount awarded to all heirs, based on the net value of the estate.
  • 4 – The notaire identifies the amount of debt created in favor of the children by the application of the tontine clause.
  • 5 – The children secure this debt, most often by putting a lien almost always a mortgage  on the property. This happens when the beneficiary of the tontine clause does not have enough liquid assets to pay the debt or when the estate is not large enough to award other assets to compensate the debt.

Thus you receive full ownership of the property, which you can exercise by selling it, renting it out or living there. You are the only person who has the right to decide to sell. The children have absolutely no control over your ownership.

If you look at it carefully, the debt and the related lien do not affect the ownership, but can hugely affect whether you want to sell. You can live there all the rest of your life, since the only encumbrance on the property is the lien, and that debt should not be so much that a court would approve a sale similar to a foreclosure.

And yes, you can sell freely, but you cannot retain the proceeds of the sale in full, since the children as heirs will get the money you owe them.

Here are the steps the procedure will involve:

  • 1 – As you are French residents, everything estate, death certificate, etc. will be done in France and the notaire will be in charge of it all.
  • 2 – The acte de notoriété will be established, listing all the heirs to the estate, i.e., the surviving spouse and the children.
  • 3 – A change on the title marks the application of the tontine clause.
  • 4 – The notaire figures out how much of the market value of the assets goes to each heir; the children, at this point, receive a financial evaluation of how much they will get.
  • 5 – The notaire lets the parties decide who gets what, so each of them gets the net worth they are entitled to (including the portion of the house they were entitled to but did not get).
  • 6 – The notaire and the parties sign a final agreement dispersing the estate. At that moment there either are, or not, debts among the heirs, including the surviving spouse.

In the worst-case scenario, step 5 is that everything in the estate is sold because the heirs cannot agree on what a fair split would be, except the house, since the surviving spouse then holds 100% of the title. Either there are enough assets or cash in the estate to compensate for the tontine clause, in which case the children are fully compensated and the house has no lien on it, or there are not enough assets or cash and the obvious thing to do is to take out a mortgage on the house to secure the debt so the children get their money in the case of a sale or your death.

The most practical solution is to purchase sufficient life insurance so that at the time of death there is enough cash to compensate the children upfront.

As long as you live in France you cannot use trusts to shelter assets from the children. But one way to keep the children from getting anything is for both of you to sell the house en viager so that once one of you dies the house belongs to someone else and you spend the proceeds of the sale together however you wish.


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