France - titre de séjour for stepson with out mother.

[tebee]

Hi there folks !

My problem is I'm an Englishman exercising my EU rights in France - I have a small business here .

I'm married to a Chinese girl who is however, a Thai national and she has a son who is 20 years old also a Thai national.

Now this trip I've brought him back to France with me on a Short term Schengen Visa with the idea of getting him a titre de séjour when he arrived - the plan is he has taken a year off collage and will study French here. After that he may try to transfer to a French collage or return to finish his current degree.

No I've been unable to find exactly what papers are required on the website of my local prefecture - http://www.cotes-darmor.pref.gouv.fr/Vo ... 653#F22117

So I went down to my local Mairie and asked there. They have told me he is not entitled to a titre de séjour unless his mother is also here. Now I'm sure this is wrong but can anyone confirm this and point me to the relevant legislation ?

What they are telling me to do is even more crazy - get another Schengen Visa after the current one expires which seems to be both impossible and would not cover him for half the year anyway.

Tom

[EUsmileWEallsmile]

Your family members are defined in article 2 of the directive, they include your spouse, your children (under 21 or dependent) and your spouse's children (under 21 or dependent). Your wife's child would therefore be covered at least until he is 21 after which dependency would be required.

Your difficulty might be demonstrating the familial link (child of a spouse who does not appear to live with you).

The directive does not specify about who lives where, but you as the EU national must be exercising treaty rights (you are if self-employed).

[tebee]

Ah ! It's I who travel over there to live with her several times a year - normally for 2-3 months at a time.

She is a doctor and also teaches at a university there so it's hard for her to get time off to visit over here. My business is internet based and so it's much easier for me to work from there . In fact we are now dispatching stuff from Thailand as the postal costs there are less than half of those from France, though the business is still registered in France and pays French taxes.

So any suggestion as to how I can proceed ?

[EUsmileWEallsmile]

Ah ! It's I who travel over there to live with her several times a year - normally for 2-3 months at a time.

She is a doctor and also teaches at a university there so it's hard for her to get time off to visit over here. My business is internet based and so it's much easier for me to work from there . In fact we are now dispatching stuff from Thailand as the postal costs there are less than half of those from France, though the business is still registered in France and pays French taxes.

So any suggestion as to how I can proceed ?

Have you qualified for Permanent Residence in France? If not and you are not in France for up to six months per year, you maybe breaking your residence each time you do so. If you're not resident, your family members don't have residence rights.

Aside from that complication, I have no experience of dealing with the French authorities, but you could print off the directive in French and show them the relevant parts.

[tebee]

Surely whether I have permanent residence in France is irrelevant to the case? As an EU citizen I have the right to work and reside here AND to bring my family if I want.

They will earn their own permanent residence after 5 years or are you saying I could somehow transfer my own permanent residence status to them?

I think there would be a lot of unhappy people if we had to wait the 5 years to gain PR status before we could bring out families.

Tom

[EUsmileWEallsmile]

Surely whether I have permanent residence in France is irrelevant to the case? As an EU citizen I have the right to work and reside here AND to bring my family if I want.

They will earn their own permanent residence after 5 years or are you saying I could somehow transfer my own permanent residence status to them?

I think there would be a lot of unhappy people if we had to wait the 5 years to gain PR status before we could bring out families.

Tom

You do not need to have PR to bring your family. You are correct, you do have the right to work and bring your family if you want.

You can't transfer your PR if achieved to them.

You've misunderstood my point. You were suggesting that you would like to bring your wife's son to France even though she lives in Thailand. The answer to that is yes you can, provided you live and work in France. However, if you don't actually live in France and are flipping between Thailand and France then it would be more complicated.

[tebee]

As it happens I would qualify for permanent residence though I haven't formally applied for it. I'm never out of the country for more than 90 days at a time as this is the maximum time I have insurance cover for.

I regard France I my main base, my business is registered there and I pay French taxes on my worldwide earnings. I use Thailand as a sub-base to source things for my business and for trips to China to do the same.

I am getting more and more work done there, things which cost me €1.20 to get done here cost me €0.06 in Thailand ! I still, however, sell them though the French business.

Long term the plan is for us all to move to France, although that's complicated by the fact that my wife's qualification is not recognized here so she could not practice. It's is however possible for her to work in the UK so we have even been considering moving back there at some point.

I still consider myself as living in France !

Tom

[EUsmileWEallsmile]

Ok, you're resident in France. Back to the main question, you can bring your spouse's son to France to live with you. That's what the directive says. How to convince the French authorities is another matter, but at least you can be sure of your own ground.

[EUsmileWEallsmile]

You could read through this if you haven't done so. Apparently family members are not defined explicitly as per the directive. The study was done some years ago and so things may have changed a little, but it's a good starting point.

http://ec.europa.eu/justice/doc_centre/ ... nce_en.pdf

[tebee]

Well I've now been to my local prefecture and they agreed I could get his titre de sejour but they have given me a list of things they require which contains at least 3 things they are not allowed to ask for according tonhttp://europa.eu/youreurope/citizens/residence/worker-pensioner/non-eu-family-members/non-registered-partners_en.htm

Firstly they want a Justifcatif du assurance malade - health insurance .As a part of my family he should be on my health insurance I thought ?

Secondly a Justificatif du resources - my last 3 wages !

and finaly an attestation de prise en charge which is I think a letter saying I will take responsibly for my son.

Strangely enough one of the things they have crossed off the list is my marriage certificate to prove I'm married to his mother

This is not just a generalized list they have mistakenly applied as at the top it says "Mention European"

Now I'm sure they shouldn't ask for these but what is the best way to proceed from here ? Meekly supply the extra documents and complain to the EU? - and what we do if they refuse me on one of these items? my income is somewhat variable.

Taking a stand and refusing to supply will probably just make them dig their heals in and I wont get what I want.

Tom

[EUsmileWEallsmile]

There's a difference between being practical and getting them to obey the letter of the law. Complaining to the EU will take ages. You could try Solvit, again might take ages.

You've got to weigh up the difficulty in getting the documents requested and time. Once your step-son is over 21, he will need to be your dependent.

[tebee]

Yes my thought too is to take the easy way out and give them what the want. As it happens we have most of the required paperwork including the temporary health insurance we arranged for the trip over.

What makes it all even more ridiculous is that when I told them I didn't have wage slips as I'm self employed and on the Auto-entrepreneur scheme they told me just to give them a copy of my next three monthly declaration.

Now this will tell them nothing. Firstly on the simplified system I'm on I declare and pay tax on my total sales not my profits, so looking at those figures will tell them nothing about how much I'm actually making. Secondly its a declaration I make - I could just make a high deceleration for those months ( at the expense of paying more tax than I should) and no one would be any the wiser.

So is it worth complaining after doing all this ? It won't help me but might make it easier for the next person.

Tom

[EUsmileWEallsmile]

If I were you, I'd make the application if I could present the requested documents. Good luck with it!

[tebee]

Well I've now returned with all the requested paperwork and they refused to accept my application on totally different grounds!

The prefecture is now saying my step-son needs to be under 18 not 21 to be considered my dependant. I showed them a copy of Article 2.2 (c) of Directive 2004/38/EC which clearly states 21. Their answer was that a person is an adult at 18 in France and they seem to think French law trumps EU law !

When I pointed out his current (Schengen)visa was issued on the basis of him being my dependant they then said that visa was invalid and he was not legally in France

Not sure what to do next.....

[EUsmileWEallsmile]

That's pretty ridiculous. One issue with the French transposition into domestic law is that they have not defined family members as per the directive. I posted a link to this earlier.

http://ec.europa.eu/justice/doc_centre/ ... nce_en.pdf

[EUsmileWEallsmile]

These two pieces of legislation would appear to be how they transpose the directive relating to beneficiaries 2.2 of the directive.

1. For EU citizens

http://www.legifrance.gouv.fr/affichCod ... ieLien=cid

2. For the family members of the above

http://www.legifrance.gouv.fr/affichCod ... 0006334968

[tebee]

I've just been looking at the appropriate French law which I think is Article L121-1 section 4 of LOI n° 2006-911 du 24 juillet 2006 see this http://www.legifrance.gouv.fr/affichCod ... e=20120413

and it says "4° S'il est un descendant direct âgé de moins de vingt et un ans ou à charge, ascendant direct à charge, conjoint, ascendant ou descendant direct à charge du conjoint, accompagnant ou rejoignant un ressortissant qui satisfait aux conditions énoncées aux 1° ou 2° ;"

Which says 21 years - so why are they making this up off the top of their heads ? I know French government departments interpret the laws their own ways , but here they just seem to be saying what they think the law should be rather than what it is.

I almost could not believe it when I showed her the visa with the " family of EU citizen " endorsement and she said it had been wrongly issued.

[EUsmileWEallsmile]

I don't know how good your French is and whether you are able to argue your case personally. What you do know is the legislation is one your side. I don't know how you nudge the local authority into accepting that the law says what it says.

[tebee]

My French is Ok but far from perfect, most of the time I can understand and be understood, but I think sometimes they play on my less than perfect comprehension.

At the moment I'm thinking of returning there on Monday with a print out of the law concerned.

[EUsmileWEallsmile]

You have a huge advantage with that. Don't underestimate what you do and don't understand. Printing the relevant laws out will help. Is there a native speaker you can co-opt that could help you get your points across?

[tebee]

Something else they complained about was that I'd brought him here on a short term Schengen visa rather than a long term one. Now I know this is perfectly valid and, indeed, the preferred method. I'm sure I've seen this way recommended of one of the French government/embassy websites but searching has not found it again - can anyone point me to an official French endorsement of this?

[EUsmileWEallsmile]

The directive says:

Family members who are not nationals of a Member State shall only be required to have an entry visa in accordance with Regulation (EC) No 539/2001

[tebee]

Well I thought this was all progressing, but we got called into the bureau de etrangers at the prefecture today for an interview.

What they have now told me is they cannot give him a CDS until his mother arrives in the country unless I formally adopt him.

They accept he has a right to reside here under EU law and are proposing to give him a temporary visa to legalize his position(as he has now outstayed his Schengen visa) but they say under French law there is no way they can currently issue him with a CDS.

I find this position amazing as what they are in effect saying is that French Law does not conform to EU law.

Would this be a suitable case to take to Solveit ? Unfortunately I have nothing in writing to confirm this yet but have asked them to send me a letter explaining what I need to do.