The Outlaw

October 2019

From Wikipedia
“The Outlaw is a 1943 American Western film, directed by Howard Hughes and starring Jack Buetel, Jane Russell, Thomas Mitchell, and Walter Huston. Hughes also produced the film, while Howard Hawks served as an uncredited co-director.”

It has been a long time since I used the name of a movie for my column. I will let my readers guess what or who motivated me to choose this title. Most readers will not have seen this 1943 movie: It features Sheriff Pat Garrett, Doc Holliday and the criminal Billy the Kid. There are still legends surrounding these men, who actually lived in the Wild West of the late 19th century. Today the legends are being challenged: Some say the men enforcing the law were not really the good guys and Billy the Kid was challenging a corrupt authority.

I chose the title mostly in regard to the second Q/A. I have been a militant for over 20 years in trying to assist people who are considered by some to be outlaws, the undocumented aliens, “les sans-papiers”. I believe we must look beyond their status as law breakers, especially as long as French law grants them the right to obtain a legal stay, thus blurring the line between legal and illegal. I stay on the right side of French law, which, odd as it may seem, grants right to outlaws.

MY OFFICE PROJECT HAS BEEN DELAYED 

This unusual real estate transaction goes back to shortly after I bought my current office space, when the real estate agent asked me if I would be interested in buying the space next door to mine. At the time, I saw no opportunity for its use. But after a couple of years, having built up some savings and acquired an assistant, I realized what an investment opportunity it was. After several months of negotiations, I reached a deal with the agent in early May.

The initial sale of these properties was triggered by the death of the owner, a rather old lady. There are many heirs involved, with little trust among them. I knew from the initial transaction that there might be some delay in getting everybody’s agreement, but I was confident that in the autumn I could start renovating.

In the meantime, however, one of the heirs died, leaving a son aged 17. Due to the slowness of the French court in approving the sale, it was decided to wait until he turned 18 so he could sign for himself. Hence while the offer still holds, and will almost certainly be accepted, I doubt that the transaction can go through before 2020.

The space concerned is a studio that is commercially zoned. Measuring about 28 square meters (300 square feet), it can be used for short-term, Airbnb-type rental and/or a coworking space for up to five people.

CLARIFICATION ON GETTING A CARTE DE SÉJOUR IN THE MAIL
After the September issue went out, I received this message from the reader who sent me the material for the last Q/A:
“I have just read your latest column, noting that you included my email to you, and want to clarify:

  • 1. Yes, our cartes de séjour were sent to us through La Poste; and.
  • 2. The Hôtel des Impôts simply did not want to, or could not, deal with us when we turned up to register as tax residents.

Bear in mind, however, that this was 2008-2013 and this incident took place in a very rural area of Dept 86. The mairie of the small village of Brigueil le Chantre was not able to facilitate our requests, necessitating numerous visits to Poitiers with our multiple translations of police clearance certificates, marriage license, birth certificates and, in my husband's case, Australian citizenship certificate, plus other documents that I have forgotten about. On the other hand, we were able to obtain my driver license via the sub-prefect's office in Montmorillon, our nearest small city.

I add that nothing was straightforward or simple and we were often left with the impression that the bureaucracy did not know what to do with us. Despite the amount of time spent navigating our way through the complexities of the French residency system, albeit only temporary, as we were always intending to return to Australia, we did enjoy our time in France and wouldn't have missed the experience for anything!

Thank you for your informative column.”

BRITISH PEOPLE WILL BE ALLOWED TO ASK FOR IMMIGRATION STATUS AFTER BREXIT
Another deadline is quickly coming regarding Brexit. The chances of an absence of agreement are greatly increasing. The prime minister is campaigning for a so-called hard Brexit. He appears not to have the support in Parliament to get it, and it is now possible that Parliament will approve an agreement that he refuses – the exact opposite of what happened with his predecessor. Because of what is at stake, I have ended up having to follow British politics. It is clear that something has to happen in about a month.

The French government continues to be lenient in its policy regarding British citizens living in France. Even if a hard, no-deal Brexit takes place, these people will have a year to ask for French residency, provided they can prove that they have lived in France for a while. This will be true regardless of whether any equivalent offer is extended to French people living in the UK.

British citizens in France, and probably other European Union countries, are securing their legal stay by asking for an immigration ID, which will make Brexit likely to have much less impact on their life. It is difficult to know which status they will get once ties are cut, but the French prefectures will certainly have to find an immigration status that fits their situation, and there are many to choose from. I am telling my clients that asking right away for French nationality, based on just the British passport and several years living in France, is not the safest way to go. Holding a carte de séjour européenne is more than enough, since it lasts five years and Brexit should be complete by then. They will then be in a clear, secure situation. Therefore I am pushing my British clients to ask for their cartes de séjour before Brexit occurs..

I am not certain, but it would make sense if, in a case of hard Brexit, British citizens would still be able to ask for French immigration status without having to hold it beforehand. But it is possible that the prefecture will not issue them a carte de séjour européenne but a standard one, which may grant fewer rights. Holding a carte de séjour européenne or a student card is not at all the same thing, by the way: The latter grants very few rights to the card holder.

The opportunity may last only for the next four weeks or so, but if you need to obtain this immigration status, make the appointment now. Even if the appointment ends up being several months after the Brexit deadline, you should obtain the carte de séjour européenne.

MY FEES WILL GO UP ON OCTOBER 1st

As of tomorrow October 1st, my initial retainer goes up from 270€ to 300€ and the hourly rate from 110€ to 130€. I am also blocking three hours instead of two for each meeting so I have time in between two back-to-back meetings to do administrative work. This should make it possible for me to answer emails and return phone calls more quickly. My assistant attended several meetings with clients in September to facilitate this transition. In some instances she has accompanied my clients to the prefecture. She should be able to do the same thing with URSSAF, CPAM and some other public offices. As her fees are lower than mine, this should compensate for the increase in my fees. I hope once again to be able to get back to people in 48 hours. I am sorry for my slowness in the last several months. I have tried to solve this issue to the best of my ability.

Best regards,

CHOOSING THE RIGHT IMMIGRATION PROCEDURE

QUESTION

I have been living with my French PACSed partner for several years and I hold student status as an American. I have just been hired by an IT firm in Paris for a really good, well-paid job but they have never hired a non-EU citizen. I told them that I could get a family visa. I asked the prefecture how to do it and they answered that I do not live with him. They are lying. I have been with him for three years, and I can prove it: I get my bank statement and my phone bill at that address. The rest of it is in his name and as a student I never declared my income anywhere. How can the prefecture be so wrong?

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ANSWER

My answer could be, “You are wrong and the prefecture is right, you do not qualify.” The issue here is strictly whether you can provide such proof, according to the guidelines the prefecture has regarding this immigration status (it is not a visa request). This is a common situation. People have rights they cannot exercise because they cannot prove the extent of their entitlement, due to the lack of specific documents.

The guidelines entail proving the existence of the PACS both at the time it was made and now. First, you need to provide the original PACS statement and ask by email (pacs.scec@diplomatie.gouv.fr) for a statement that the PACS is still valid.

You must also provide at least one document per month with both of your names on it, such as utility bills, tenant insurance policy, Internet provider bills, rent receipts, statements of a joint bank account. If both names are on all those documents, it is easy to show two or more documents per month complying with the legal requirements.

Furthermore, being PACSed and living in France means you have a legal obligation to declare the couple’s income jointly to the French tax office. Failing to do so is a violation of the law, since French income tax is calculated on the income of the household. Your partner is thus paying a lot more income tax than he should.

Because your personal bills and bank statements show the address of a building, not the apartment, your partner could live on the last floor and you on the first one. To argue this shows bad faith on the part of the prefecture, but it is often the case that guidelines defining what is acceptable in court are not really meant to make sense.

The prefecture told you that, according to their guidelines, you cannot prove you live with him. This is not the same as questioning the reality of your relationship with your partner. This is a misunderstanding on your part.

Now, about your new job. I do not know much about it, but it sounds promising, including when it comes to which carte de séjour you can choose from. I would like to review the most probable options for your carte de séjour.

1 – Salarié
The procedure to obtain this card is twofold and the most difficult of all while giving the lowest level of immigration status. Therefore it should be avoided as often as possible.

  • a) There is a meeting at the prefecture to submit the request for a change in status. The prefecture reviews the profile of the foreigner in a very narrow way. It is now virtually impossible for the file to go through to the Direction régionale des entreprises, de la concurrence, de la consommation, du travail et de l'emploi (DIRECCTE) if there is no French diploma proving expertise tailored for France, even though the law does not require this. Furthermore, there are many instances where a foreigner has considerable professional expertise usable in France that does not require a French diploma to be put to use. This is the first hurdle and it can be a big one.
  • b) The employee-employer section of the file goes to the office called Main d’Oeuvre Etrangère (MOE) within DIRECCTE. There is one per département in the same city as the prefecture. As there is no set time frame for sending it, there is sometimes a long delay at this stage.
  • c) MOE has by law a maximum of two months to give an answer. But there are no consequences if it takes longer, which happens a lot. Also MOE has a powerful veto right. Therefore you must comply with one of the following exceptions:
    • * holding a master’s degree and being paid a monthly gross of at least 2,200€
    • * being a shareholder in the company, preferably owning at least 25%
    • * having a job listed by the French administration as being in demand (en tension)
  • d) If MOE reaches a negative decision, it is based on the unemployment rate of the position. That is why its veto is so strong. Therefore one of the critical aspects of the file is to prove that the company has looked long and hard for the right candidate in France with this right to work. Often the file will include the résumés of other candidates and explain why they were not chosen.
  • e) MOE sends out a letter that goes at least to the employer and usually to the prefecture and the applicant as well.
  • f) The prefecture finalizes the procedure and asks for the card to be made.

This procedure takes three months at a minimum, barring a miracle of some sort. There is no real maximum set, though a court case could be filed if it drags for a year or so. Then again, court hearings are scheduled several months in advance. To shorten the length of the procedure as much as possible, the file must be truly complete and perfect, since the bulk of the time this procedure takes, is used by MOE.

 

2 – Passeport talent – entreprise innovante (working for a start-up)
This status requires an annual gross salary of at least 36,509.20€ and the employer must be considered ajeune entreprise innovante (www.service-public.fr/professionnels-entreprises/vosdroits/F31188) or anentreprise reconnue innovante par le ministère de l'économie and the position has to be in direct link with the research and development division. In short, one works for a start-up as an executive. The key difference with this procedure is that everything is done by the prefecture and although the process can take up to two months, my experience is that there is dialogue with the prefecture. They can ask for more documents, some explanation, and so on. The first thing to check is that the company has the necessary recognition for innovation before committing yourself. Otherwise there is considerable uncertainty if the prefecture has to decide whether the employer qualifies.

 

3 – Passeport talent – carte bleue européenne
The requirements are an annual gross salary of at least 52,750€ (and this may change, so shoot for 53,000€) and either a bachelor’s degree (in France or elsewhere) or five years of professional experience in your field. The procedure is totally straightforward, since the salary is almost the only critical element in granting this status.

In conclusion, the foreigner can choose among multiple types of immigration status. In your case you need to think in terms of the best strategy for you. This is how I see it:

1 – Now that you know the requirements needed to prove that you are living together, which the prefecture demands to obtain the private life carte de séjour, put everything in place so you qualify for vie privée status. That way, you have a plan B ready no matter how well or poorly your job goes.

2 – Choose the passeport talent over plain salarié immigration status. It grants you a four-year card right away with a CDI (an open-ended contract). That way, if things do not go well, you can keep your carte de séjour while getting unemployment if you qualify, or resign for a better job. You would take a much smaller risk than having to go through the DIRECCTE procedure a second time and possibly face a veto.

Bottom line: the private life status you were seeking, with its one-year validity then two years upon renewal, does not seem to match up with passeport talent. Never judge a book by its cover!

 

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CHOOSING TO LIVE SANS PAPIERS

QUESTION

I am a PhD student from Pakistan who came to France on international mobility (6 months) in June. Now my training and work require me to get an extension of three more months, and my organization is ready to support me for an extended period of time. But my visa cannot be extended or renewed, as it is for a long séjour temporaire. I am in a situation where I cannot afford to go back to my country to apply for another visa and then come back. The truth is, as a young woman, I do not want to go back. No one is guiding me well. I wanted to ask you if there is another solution, if I can apply for a new visa while staying here in France, as the validity of the visa is till November. I tried for a carte de séjour but my visa restricts me from that as well. I desperately need your help.

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ANSWER

Introduction Before I describe the details of how to set up your life in France so as to go through a regularization procedure and in a couple of years obtain a legal stay, let me say that after all these years I still have a very hard time coming to terms with the idea that someone holding a PhD would choose to live clandestinely as an undocumented alien in a Western country rather than blossom with a career that a prestigious education such as yours should make possible.

I still need to listen and be reminded about what it means for a young woman to envision going back to her country holding a PhD and looking at the absence of any meaningful professional achievement as well as almost no personal fulfillment – in short, not being able to have a life.

In the Filipino community in Western countries, for example, I have often seen civil engineers cleaning floors for a living, or licensed nurses, schoolteachers and pastors being exploited as nannies.

No matter what opinion leaders and politicians say, most of the time illegal immigration is made up of university graduates. They cannot really have a career as professionals in their country. Very often, they are forced, or they force themselves, to make the choice to live as “outlaws!”, when they could be the pillars of their community at home if such a thing were possible.

I believe this is one of the biggest world problems: Poor countries see many of their graduates immigrating to the West for a better life. By doing so, they drain their country of the expertise and leadership those countries need to take off economically.

I would like to share comments from people who have been sans-papiers in France and have successfully gone through the régularisation procedure, as well as some from citizens of the third world countries caught in difficult situations with the prefecture. I neither agree nor disagree with their statements. I want these people to be able to express how dehumanizing it was being sans-papiers for several years. The minimum according to the law is three years; the reality is almost always over five years. It means that, every second of every year, one has in the back of one’s mind the risk of being arrested and deported. It means constantly living in fear and developing a fair amount of paranoia to stay safe. Being worried for months that the request will be refused, and not getting any indication of what the outcome will be, is also destabilizing. I am honored to have received the following comments, as opening up about this topic is not easy; it remains emotionally loaded even several years after having fully secured the immigration status. So my thanks to all of you who replied.

 

TESTIMONY #1
Wow, this is my situation when I first came to France. The only difference is that she has a degree to pursue back home. Living as sans-papiers here is not easy. It's like you’re passing through the eye of a needle. I hope she will make the right decision because she has a bright future ahead of her.

 

TESTIMONY #2
Well, if she wants to pursue her career as a PhD, it's in Pakistan! She has to ask herself what she really wants and needs in her life. It's not that she does not have good choices, in fact she has! If she thinks that she can continue to finish her PhD career in her home country, then she can choose to go back, get a good career. That's why I am saying that she has to make the right choice. I don't encourage her to stay in France and become sans-papiers because being in that situation is really heart-wrenching. Unless she's ready to go through it, that's another story.

 

TESTIMONY #3
I can only speak from my experience. I, personally, would not prefer to be undocumented. My education and values have taught me to be grateful for the opportunity this country has given me. So, if someday I ever choose to leave, I would like to do so legally, out of respect.

I have encountered some undocumented immigrants in my time here and I don't see myself living in constant fear or worse. I have overcome that fear and feel entitled to be here.

Having said that, I can empathize with this young lady, having a fair idea about what life for a woman is probably like in Pakistan. It is a fragile time and if I were she, I would find a legal solution to regularize the situation.

First world countries are so lucrative to highly educated graduates because of the freedom these countries offer. France has taught me incredible lessons both personally and professionally that I simply wouldn't have learnt had I not stepped out.

It is difficult to imagine what anybody's personal situation is, but I definitely lean towards respecting the country and its laws, because I am grateful to be here.

 

TESTIMONY #4
I have difficulty accepting the fact that a Ph.D. student would settle for a sans-papier situation. Accepting such a condition requires a lot of courage, humility and a strong sense of purpose.
It also requires sacrifices.
I would advise her to weigh the pros and cons before taking a decision, because it can be a long and winding road...
But living in France is worth it!

 

My answer
The initial answer is obvious and is what everybody told you. With a long séjour temporaire visa that cannot be extended or renewed, it is impossible to obtain immigration status linked to your work. To do so, you must go back to your country and wait for the procedure called introduction d’un travailleur étranger en France to be completed and then come back for a legal stay. This procedure starts with the employer submitting a request to the MOE nearest the company’s headquarters. The complete procedure should take about three months. I cannot stress enough that, regardless of your financial situation or your desire not to go back home, this is the ideal scenario for you, even if it means borrowing money for the flight back to your country and having to deal with staying in a place that clearly does not feel like home. Going through this difficult time for that short period is objectively the best solution – although, not knowing what you fear in your country, I cannot state that this is the best solution for you.

The only way to overcome this restriction is to qualify for vie privée et familiale immigration status. A significant romantic relationship of sufficient duration would be one option. Being PACSed with a French citizen and living together for a year is enough to meet the requirements.

However, considering the information you gave me, I see two options for you. I want to be very clear here. Both options mean you are or soon will be ready to stay in France past the validity of your visa. This entails preparation concerning your living conditions and finances, as you will not be able to hold a job related to your experience and studies since you will not be able to be officially hired, even for the job you have been offered. It may also mean securing cheaper lodging that you can afford for several years. You will need to change your health coverage and probably your lifestyle and daily routine. It needs to be clearly stated that you will become an undocumented alien (sans-papiers), subject to possible arrest and deportation. You should start preparing to live under the radar and, to a certain extent, clandestinely.

 

1. The first option entails a lot of ifs and therefore is highly uncertain in its premises. It requires your current employer to agree to keep you on past the expiration of your immigration status. This can be done for a while, as you should have your own French social security number. You work there until you have the means to travel back to your country and request official immigration status. But there are several major problems concerning what happens once you are ready to travel back to your home country with sufficient funds.

a) Your employer submits the request as if you are living outside France. When DIRECCTE reviews the request, it can easily find out that you are working, or have worked until very recently, in France for this employer and will refuse the request with that illegal deed as grounds.

b) If DIRECCTE grants you the right to take the job, the file goes to the French consulate – which, once again, can easily learn that you overstayed your visa by several months. This is a valid reason to refuse issuing a new visa even if you have obtained the right to work. Being an undocumented alien is prosecuted as a crime.

Thus what could appear to be a quick fix is in reality a bad choice, and the odds are against you. In short, “trying to do the right thing” has little chance of success.

 

2. The second option is to get ready to stay in France and live as an undocumented alien, knowing what this entails. It means living as such for at least three and more likely five years, including the time you have already stayed. After three to five years, as long as the legislation stays the same, you have the right to ask for regularization as an employee. You will need two years’ worth of pay slips. Remember, most likely you will not have a professional job but will have to work as a cleaning lady, nanny or tutor. You will also have to convince your employers to declare you through the chèque emploi service universel system so they pay social charges and you get pay slips. The salary must be at least the SMIC (minimum wage). You must acquire proof of your stay in France, which is easily done if you prepare everything while you are still a legal resident: keep your French bank account open, declare your income and pay income tax, keep your French public health coverage (which you change to the type called AME), have utilities in your name, and so on. After enough time has elapsed, you go to the prefecture with a strong and convincing file. At that time you will be a “criminal” entering what can be seen as a police station – a perfect illustration of the expression “Walk into the lion's den” except for the file proving that you now have the right to obtain legal status in France. Most of the file stays at the prefecture as it pertains to your length of stay in France; the rest goes to DIRECCTE for review. This is a completely different procedure, as it is expected that you were working and you must submit all pay slips. Then you get your carte de séjour. I want to remind you that you will be a nanny, cleaning lady, tutor or something similar. Your chances of doing this as a qualified professional in a job related to your PhD are about zero. I’ll let you imagine what it would take for you to start your professional career from there.

You must make the final decision. I am just trying to depict, in the most realistic way, the consequences of the choices you have. I wish you had an easier choice. Take the comments of those other women at face value, as they have lived through the experience.

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DISCLAIMER

Please forward this message to all those who would be interested in its contents. The information contained in this newsletter is intended only as general information. 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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