French residency for American husband married to BG citizen

[avs]

Hello Forum,

I hope you can give me some advice on my situation.

I am a British passport holder living and working in france, however i do not hold a residency card as i was advised i no longer needed to have one.

My husband is American, we were married in France and have been married for 2 and a half years and have two children both born in France.

We are now trying to apply for his residency in France to enable him some rights . but....

My husband has overstayed his visa in france, and i heard that to apply for residency you have to have not overstayed your visa. So the obvious thing to do, is to go back to the states, re-enter into France and then apply for the residency.

My question is:
Is there another way of doing this without having to leave the EU?

We have seeked legal advice and were told:
that our case is a simple one
it dosent matter that he over stayed his visa and that the question wont even come into play.

I dont quite trust his advice as right after we got married in 2007 we went into the prefecture to apply for his residency and the first thing they did is look at his expired visa and said "sorry we cant help you" without asking further questions my husband left as he was frighten they might report him and deport him. Since then we havent made another attempt.

This year his american passport expired and he applied for a new one in France. He received his new passport (biometric) which to totally clean, no stamps, nothing to say he overstayed or entered France and it says that the place of issue is united states of america.

So, we thought that maybe this is a chance for us to try applying for his residency again, and if the person at the prefecture asked how long he has been here, he could say as of last week but i didnt get stamped in.

And now we are even thinking of going into swiss by train and entering France by plane just to get a stamp incase the prefecture do ask proof of entry.

I think we are taking a long route into sorting out something that shouldnt be so complicated, all we wont is the right to stay together as family, but immigration law towards EU and non EU couples seem to make it almost impossible unless you can throw lots of money at them.

Can anyone give us some advise as we really need to get my husband into the French system and allow him right to work and provide for his family with out fear of getting controled and deported back home. we know this happens to people and we would really like to avoid it. so please help.

[86ti]

We have seeked legal advice and were told:
that our case is a simple one
it dosent matter that he over stayed his visa and that the question wont even come into play.

I dont quite trust his advice as right after we got married in 2007 we went into the prefecture to apply for his residency and the first thing they did is look at his expired visa and said "sorry we cant help you" without asking further questions my husband left as he was frighten they might report him and deport him.

In 2008 (July I think) he European Court of Justice came to the conclusion (Metock case) that it doesn't matter, i.e. the fact of overstaying alone doesn't deprive him of his rights as the spouse of an EEA national exercising the right of free movement. He shouldn't be denied the residence card on that basis.

[John]

avs, I think another way of posting what 86ti has posted is this. He has not been overstaying. He has simply been exercising his EU Treaty Rights in France, as your family member.

Now all he is doing is applying for a Residence Card, that will confirm the EU Treaty Rights that he already has. The RC will not actually give him any more rights, merely confirm he has those rights.

The Metock judgement was useful confirmation of this.

[avs]

Thank you 86ti,

Would you be able to give me a link for this so i can do some research. I tried looking for it but couldnt find anything.

Many thanks

[John]

avs, you can read the Metock judgement by clicking here.

The important part for you is at the very end, part 2 of the judgement :-

Article 3(1) of Directive 2004/38 must be interpreted as meaning that a national of a non-member country who is the spouse of a Union citizen residing in a Member State whose nationality he does not possess and who accompanies or joins that Union citizen benefits from the provisions of that directive, irrespective of when and where their marriage took place and of how the national of a non-member country entered the host Member State.

[avs]

Thank you John,

This sounde really promising.

Would this mean that we have to apply for a special type of residency in france? is there a special name of the applycation form that we would need to fill out.

And would we go about applying for it the same way as other applications by going to the prefecture.

And should my husband be affraid of being asked how long he has been here? what i mean is if they do ask him and he replies honestly what will they do?

i am a little worried as what if they take no notice of that new law.

please advise all this information really helps us

[John]

i am a little worried as what if they take no notice of that new law.

It is not a new law. It is simply confirmation of what the law actually has been for years.

Sorry, I cannot comment upon what form to use, or where to apply in France. Hopefully someone else will post that.

In case it helps, here is the Metock judgement in French, including part 2 of the judgement :-

L’article 3, paragraphe 1, de la directive 2004/38 doit être interprété en ce sens que le ressortissant d’un pays tiers, conjoint d’un citoyen de l’Union séjournant dans un État membre dont il n’a pas la nationalité, qui accompagne ou rejoint ce citoyen de l’Union bénéficie des dispositions de ladite directive, quels que soient le lieu et la date de leur mariage ainsi que la manière dont ce ressortissant d’un pays tiers est entré dans l’État membre d’accueil.

[86ti]

How to apply is obviously given here (I do not speak French). Copy and paste the link.

http://vosdroits.service-public.fr/part ... n=Etranger - Europe&l=N19804&n=Europe &l=N20305&n=Citoyens européens en France&l=N123&n=Citoyens européens : résider en France&l=N13510&n=Citoyens européens : installer sa famille&l=N13548

I think you should go to the Prefecture and ask again. Point to the Metock case if necessary. If there is a problem again contact SOLVIT. You may also be able to obtain general legal advice from CSS.

What can possibly happen? I do not know how the French would handle your case but I do not think that they would have a legal basis to deport him. He could possibly have to pay a fine because he didn't register in time. I would not advice to lie about the past as that would be deception.

EDIT: Just one note. Switzerland is Schengen now!

[pierre75]

To avs :

The French law saying that you have to register as european citizen at your municipality in France is not yet operationnal. You still have to register at the PRefecture for the time being.

You have to do that in two stages :

- first stage, you have to go alone to the Prefecture and register to a title as European citizen living in France (take with you a proof that you are working and that you are not on French social system for living - don't speak about your husband - say you need this title for your english insurance or whatever).

- second stage, as soon as you got your own title (it should be delivered immediately but Prefectures in our sweet France do not respect the laws), ask for your husband under Metock case.

Please wait for july first, the European Union will issue the new guidelines for the States in order to implement the 2004/38 directive.

PS : ask a receipt with the date at the Prefecture stating that you applied for a title for yourself (bacause your english insurance needs it immediately of course ...) and ask also for a receipt when your husband will apply. It is very crucial in order to have a proof stating when you applied. If they refuse to give you any receipt, send them immediately by recorded letter by post a copy of the complete file and keep preciously the receipt of the post office.

French system and european system for UE-3rd country families in French at :
http://multinational.leforum.eu

In english :
http://translate.google.nl/translate?js ... ry_state0=

[Directive/2004/38/EC]

Your husband has a right to be there with you. He is not illegally there (unless he has been expelled from France). The visa he would get is only an entry visa, which is for his initial entry to the country.

Minor issues like "overstaying" his visa are not relevant to his getting a Residence Card. There is clear European case law to this effect.

Are you properly registered as living in France?

[avs]

Hello, many thanks for your replys, we are starting to feel alot more positive about going to the prefecture and applying for my husbands residence.

Directive/2004/38/EC to your question:

i work here and pay tax i am on the social security system and hold a card vital. Also both our children were born here and i receive an allowance for them from the French government. I have been here for 3 years, i tried getting a residence card but the prefecture suggested i no longer needed one as i am part of the EU. So does that mean i am registered in France? if not, how do i get properly registered?

Also as i said my husband now holds a new clean passport, could he just tell them he arrived last week but didnt get stamped in?

We just really dont want his overstaying to create an issue like back in 2007.

[86ti]

i work here and pay tax i am on the social security system and hold a card vital. Also both our children were born here and i receive an allowance for them from the French government. I have been here for 3 years, i tried getting a residence card but the prefecture suggested i no longer needed one as i am part of the EU. So does that mean i am registered in France? if not, how do i get properly registered?

I think you have to register also with the local marie but you have probably done that already. As pierre75 indicated you do not need a registration certificate yourself (based on a law from 2003 I believe) but that obviously still doesn't work properly. It wouldn't hurt to get one though. I think you have the right to have one issued to you and it should also be free of charge (maybe a small administrative fee).

Also as i said my husbanow holds a new clean passport, could he just tell them he arrived last week but didnt get stamped in?

We just really dont want his overstaying to create an issue like back in 2007.

Don't be naive and assume that there wouldn't be any records of the visa application. Why do you want to try to hide this fact? It could be seen as deception. Maybe its not enough to deny the residence card but if the fact of overstaying comes to light you will have more problems than you think you have now.

[John]

Again, he hasn't been overstaying, he has been legally in France exercising his EU Treaty Rights, as a "family member".

[avs]

86ti, me and my husdand got married at the local Marie, we had to turn in all our documents such as (french address, bith certificates, medical examinations and passports, would that have been considered as getting registered? and when our children were born my husband had to register them at the marrie.
Do i need to go and register for something else with the local marie. I figured from all my activity in france i was already considered a registered resident. correct if i am wrong and if i do have to register i will go and so it but i al just not too sure where.

[Directive/2004/38/EC]

Again, he hasn't been overstaying, he has been legally in France exercising his EU Treaty Rights, as a "family member".

This is exactly right. He is legally there right now.

avs,

You need to relax and breath deeply. Your husband is fine and can stay in France as long as you stay there.

He should get a Residence Card. This may involve some hassle, but not much. You are working, so he is entitled to the Residence Card.

See http://eumovement.wordpress.com/directive-200438ec/ and especially
Right of Union citizens and their family members to move and reside freely within the Union: Guide on how to get the best out of Directive 2004/38/EC

[avs]

thank you all,

So my question now is do i need to get registered? or am i already considered registered?
I read that not all member states require registration as it is under the directive law. would this appy for france? if so, that would mean i have lived and worked here for 3 years without reporting my presence.

is paying tax into the system is not proof of registration? i know a few british people here who have also lived and worked here for longer than i have and have not reported their presence as the prefectur told them them no longer needed residence cards. im a little confused now.

[86ti]

and when our children were born my husband had to register them at the marrie.

Sorry, I really do not know how they do that in France but you probably have to be registered in the same way as you did with your children. But if they have been registered already I wonder how this could be done without also having the parents/guardians registered at the same place.

I understand that registering your place of residence may be a strange concept to UK and US citizens but it is compulsory in most (all of continental?) Europe. Has nothing to do with immigration. Citizens have to do that as well.

Anyway, I concur with John and Directive/2004/38/EC. Your husband is a legal residence of France and the previous overstaying is irrelevant now. However, he is also required to apply for the residence card.

Please report back how it was going.

[86ti]

I read that not all member states require registration as it is under the directive law. would this appy for france? if so, that would mean i have lived and worked here for 3 years without reporting my presence.

Just to be clear here there may be two forms of registration:
1) The presence at a certain address. Applies to citizens and aliens alike.
2) The registration of foreigners for immigration purposes. You probably need 1) for 2).

[avs]

once again thank you,

i shall find where i need to get registered first and then continue with my husbands registration.

i will you know th outcome of the situation.

86ti in answere to your question, me and my husband have a french family book that was issued to us by the local marie when we got married and when our children were registred they were also entered into our family book. maybe us getting married was also a way of registration? i am not sure but i will get my address registred.

[86ti]

I think I was wrong. There is obviously no compulsory registration of one's address in France. If you need to proof your address you can do it with utility bills (I guess that should be familiar...). I hope the information in Wikipedia is correct. Sorry for the confusion.

[pierre75]

So my question now is do i need to get registered? or am i already considered registered?

I shall write it clearer.

You are not registered yet and you need to be registered in order to let your husband to be registered.

France adopted a law saying that EU citizens must register to the city hall which is supposed to deliver an immediate registration but the government still didn't implemented this law because it still wants to filter EU citizens. So, for the time being, EU citizens still have to register at the PREFECTURE (which depends of the central authorities) and not yet at the city hall (which depends of the local authorities).

It is not only related to the Metock case but EU citizen marriage with irregular 3rd country partner play a big part of it.

It also depends on the social situation of the EU residents. There is a lot of problems for example for some Portugueses or Romanians for whom, for various reasons, it is still very difficult to obtain this registration certificate.

That’s why I suggest you ask a receipt of your registration request if the Prefecture doesn't deliver immediately the registration card to you. To get this proof of the date of your request may be of crucial importance if the Prefecture decides not to deliver or do nothing about your file as they sometimes do, only saying that registration isn't mandatory. If you have a proof that they received your file at a specific date, you can force them to act on it and you don't loose time. If you cannot prove the date, you will have to do it again from the start. If it is too difficult to get a receipt at the desk of the Prefecture, so send them again (the day after) your entire file by registered post service and keep the receipt of the post office.

That’s also why I suggest strongly that, if it is possible, you bring to the Prefecture proofs that you are working and earning money on your own and proof of you current residence (electricity bills, rent contract, etc ...).

In regards with past experiences, it is better that you register first on your own as a first stage, and ask a registration for your husband only after you got your own registration. At this second stage, your husband will get a small fine because he didn't registered before but that’s all. At the first stage, if the Prefecture asks you where is your husband, say simply the truth and that he will register later. Don't hide nothing but don't say more than they ask.

When you will ask for registration, don't forget to state that you intend to stay in France at least for five years. The validity duration of the title that will be issued to the 3rd country family (your husband) depends on how long the EU citizen (yourself) intends to stay in France.

[robin1]

I've been doing a lot of research since I intend to move to France with my husband soon and from what I can see the information and advice you have been given is entirely correct.

Your husband will be asked to show that he entered France legally ie held a Schengen visa, he should have applied for a carte de sejour within two month's of entering France. According to the Prefecture website that is. Since you have been working, you have technically both been there legally, you have just not followed the correct protocol so I guess with a bit of work you should get this sorted out.

I just have a question for myself (not wanting to hijack your thread but my case is so similar to yours) . I wish to settle in France with my non EU husband (I'm British) however I am now heavily pregnant so would arrive with a small baby and realistically do not want to work yet.

My husband does have a firm job offer to go to - he used to live in France and can go back to the same job, he would earn approx 1, 400 euros per month.

We easily have 10,000 euros in the bank and could arrange private healthcare insurance.

1st question, would my husband's employment count towards me being self sufficient?

2nd question, do our savings meet the requirements, I've found out that a family of two adults and one child would be entitled to 850 euros per month if signing onto social security, are we above this?

3rd question, if I worked part time in a low paid job would this be enough? would this also be the easier route to take?

PS sorry for hijacking thread

[86ti]

That’s also why I suggest strongly that, if it is possible, you bring to the Prefecture proofs that you are working and earning money on your own and proof of you current residence (electricity bills, rent contract, etc ...).

Does this mean that you cannot be just self-sufficient in France and e.g. rely on the income from your non EEA spouse. I wonder because you suggest this two stage process. EDIT: Ok, very similar question a robin1. Also sorry to hijack the thread.

When you will ask for registration, don't forget to state that you intend to stay in France at least for five years. The validity duration of the title that will be issued to the 3rd country family (your husband) depends on how long the EU citizen (yourself) intends to stay in France.

Is it really the intent? Intersting. So if you had a work contract for a period less than five years than that wouldn't matter?

BTW, you mentioned that the EU comission will finally issue their guidelines in July. From where did you get this information? Do you really expect any significant changes in France?

[pierre75]

Difficult to answer with my broken english ...

To Robin :


- If I rightly undestood, your problem is that while your husband has a job offer in France, he cannot get a visa on his own due to French work market restriction so he will need to use the EU legislation of Free move that apply to you in order to be allowed to stay in France as a EU citizen family member.

- On the same time, you will come to France with a very young baby and cannot work at the start because you have to take care of the baby.

- So you ask how to be legitimate in order to be registered in France as self sufficient EU citizen at the start, because you need this registration for your husband to be himself registered and allowed to work.

You can provide :
- Private health insurance for one year
- 10 000 euros savings

Your husband can get a 1 400 euros salary when he will be allowed to work in France.

3rd question, if I worked part time in a low paid job would this be enough? would this also be the easier route to take?

- If you may work a little bit, the minimum in order to benefit of the Free move of WORKERS EU legislation is 10 hours per week while monthly earnings equal the minimum social assistance service (around 400 euros for 1 people, say around 700 euros for a couple plus 170 euros for a kid). So around 870 euros all together. There is no duration minimum but many lawers advise to work for more than 3 months in order that the Prefecture can't challenge your file.

2nd question, do our savings meet the requirements, I've found out that a family of two adults and one child would be entitled to 850 euros per month if signing onto social security, are we above this?

I'm not shure in regards of the savings. The best is to try to reach British pensionners organization in France, they were very good in order to lobby the French authorities.

1st question, would my husband's employment count towards me being self sufficient?

When he will be allowed to work, it is the earnings of the family that are important not only yours. But the problem is how to get him allowance to work ...

My feeling perhaps is that you may yourself register to French public agency for job seekers "Pôle Emploi" as soon as you reach France and go to the Prefecture with all the papers (registration pôle emploi, savings, one year private insurance for all of you, proof of residency, documents of marriage and kids, etc...). To be registered in pôle emploi is more or less considered as having a job for the first months of stay.

But better to work a little bit (10 hours a week) by yourself at the start.

[pierre75]

To 86ti :

pierre75 wrote:
When you will ask for registration, don't forget to state that you intend to stay in France at least for five years. The validity duration of the title that will be issued to the 3rd country family (your husband) depends on how long the EU citizen (yourself) intends to stay in France.


Is it really the intent? Intersting. So if you had a work contract for a period less than five years than that wouldn't matter?

The duration to be taken in account is the duration you declare you intend to stay in France, it shall not be documented by proofs as working contract duration.

BTW, you mentioned that the EU comission will finally issue their guidelines in July. From where did you get this information? Do you really expect any significant changes in France?

There is a very strong need to "harmonize" the use of the 2004/38, so the member states need detailled guidelines. After Denmark, pushed by its populist right, asked to remove Metock and change some matters in the directive, it was previously stated at the end of 2008 by European member states Council that the Commission should publish guidelins before june. But EP election, so it was decided that it will come on July first. I really don't know what will change, what will be good or/and what will be bad.

Let's see ...