The French government have published regulations on the rules that will apply for residency applications made under the Withdrawal Agreement.

With less than a month to go before the end of the transition period, regulations have started to emerge from the French government on the arrangements that will apply from 2021 onwards.

During November two regulations were issued setting out the details of the application process for a residence permit (WARP) by British nationals living in France prior to the end of 2020.

Much of what they contain merely sets out in a legislative form the published guidance that is already available, albeit with more precise definition.

Resources Test

Perhaps the most significant piece of news is that a single low minimum income threshold has been set for WARP households to meet, which is €565 per month, equivalent to the social security benefit, the Revenu de Solidarité Active (RSA).

The French government had previously flagged up that a higher income test would apply for those aged 65+ but that has been dropped.

Indeed, even the RSA test has been relaxed as the minimum threshold applies to the whole household, irrespective of size, not per person.

So in stating in the past that they would be 'generous' in their interpretation of the test of resources, the French government have certainly lived up to their word.

Simon Credie from the Franco-British Network in the Dordogne, one of the officially accredited support bodies for WARP applicants, states that "the minimum income requirement has been a concern to many British nationals who have contacted our helpline and the regulation will come as a relief to them."

This test will only apply to those with under 5 years residence in France; those who can show at least 5-years residence will not be subject to a test of resources.

It is also noteworthy that even with the income bar set so low, the regulation states that ''the adequacy of resources is assessed taking into account the personal situation of the person concerned' and that the minimum threshold is the 'maximum' sum that will be used to determine whether an applicant meets the resources test.

The use of the term 'ressources' rather than 'revenus' does also suggest that capital resources can also be used in the test if the monthly RSA figure cannot be reached directly from income.

In addition, the regulation does not exclude the income test being satisfied by financial support provided by a family member, in or outside of France, although some evidence would probably be required that it was stable and regular.

Business Owners

Those with under 5 years residence who run a business in France will not, strictly speaking, be subject to the test of resources, and as if to demonstrate that is the case, the regulation specifically requires that those who are professionally engaged outside of France need to meet the minimum income test.

Business owners in France will, however, be required to demonstrate that the business is 'effective'. No definition is given of what that means, but it can surmised that if the business generates at least an RSA level of income it will meet the test.

The on-line application states that the business owner can provide ‘any’ suitable evidence to do so, which does seem to leave plenty of scope to the imagination.

New businesses created in 2020 may be in some difficulty in providing that proof, but the Covid-19 pandemic is likely to provide reasonable cover for those who are unable to provide a strong set of sales figures.

In marginal cases it seems inevitable that officials will be obliged to make the assessment, not on the revenue performance of the business, but its outlook and operational characteristics, eg activity, advertising, production.

They are also able to take into consideration the other resources of the applicant, so that the assessment does not rely entirely on business revenues.

Health Cover

Economically inactive applicants with under 5 years residence also need to provide proof of health insurance (those professionally engaged obtain it automatically). You normally need to provide an Attestation de droits.

That said, the prefectures appear to be accepting as suitable proof, evidence that an application for health cover (Demande d’ouverture de droits à l’assurance maladie) has been made.

It is interesting to note that the regulation itself only refers to the need to have a health insurance policy, not that the applicant must show they are in the State health system, a reflection of the formal legal position in France, which excludes EEA early retirees from the health system under 5 years residence.

Nevertheless, despite the low barrier set for the resources test, that does not apply to health cover, which must be ‘comprehensive’, a tough and potentially very expensive test to meet with a private health policy.

In practice, there is not a private policy on the planet that can offer cover that is commensurate with that provided through the State so it is inevitable that some flexibility will need to be used by officials in the assessment process. We think it highly unlikely officials are going to scrutinise the minutia of a PHI policy for compliance, provided it shows general cover is provided.

Interestingly, the regulation does not specify the duration of the cover, and we are aware that prefectures are accepting limited duration policies (pending the outcome of an application to join the State system) on the residency permit application.

Ironically, as we have stated in the past, UK nationals will find it easier in the future to obtain access to the health system, as they will only be required to show 3 months legal residency.

Appeals

We have sought to obtain from a Brexit official in the Minister of Interior the outlook for those early retirees who might not be able to meet the income or health insurance conditions to obtain a WARP permit.

That is particularly relevant for those who only moved to France recently, or have yet to move this year, and who are unable, for medical or financial reasons, to obtain private health cover.

According to the official, a WARP permit would be conditional on proof of residency prior to 31st Dec 2020, as well as meeting the income and health insurance conditions, but that providing proof of having been 'régulière' since becoming permanently resident France would not be necessary.

One route to heath cover (and, if necessary, to meeting the income test) is to set up a micro business. It would probably be best to do so before the end of the year, due to potential registration problems if you did not have a residence permit. The business must be 'real' and it will be subject to examination by officials. If the business does not prove to be successful it can later be terminated without prejudice to your State cover.

We also understand from officials that a right of appeal against a refusal of a permit does exist and that if an application for a WARP was refused it would be possible to later make an application for a residency permit under general provisions.

That would mean, of course, that such applicants would not benefit from the same rights as holders of a WARP, when the test of resources would certainly be tougher, but a carte de séjour outside of the scope of WARP would be possible.

In other words, although a small number of UK nationals may be unlawfully resident, they would be able to later regularise their status. There is every indication that the prospect of enforced removal from the country will be remote.

We are aware from your mails of a lack of consistency to date in approach by prefectures, but it is to be hoped that with the publication of the regulation a more uniform process will now apply.

That may be wishful thinking, as local prefectures do have a strong degree of discretion in their consideration of applications for a residency permit, and decisions are made on individual circumstances. But the discretion available does also mean that favourable decisions on compassionate or human rights grounds frequently occur.

That is particularly relevant at the present time. Against the backdrop of the Covid-19 pandemic, with a major migrant crisis from Africa and the Middle East on its doorstep, incendiary conditions in some cities, mass unemployment on the horizon, and with a host of other critical issues to face, the prefectures will be anxious to clear their desks of WARPs as quickly as possible.

Applications

In order to make an application for a WARP, you need to visit Application for WARP Residence Permit.

The website is written in the English language, and has been designed in a simple, clear manner. It is not necessary to complete the application in one process; you can make a start and return to it at a later date. All applicants will also need access to a scanner, to upload identity papers and other documents. The documents you need to supply will depend on your circumstances, but they are set out in English at WARP Documents.

Simon Credie at FBN states that if people are having difficulty in completing an on-line application, they are able to provide support in the process.

He also advises that "applicants need to ensure that all their documents are properly in place before submitting an application, including passport standard photos needed for their permit. Documents submitted also need to be consistent, with the correct name stated on all of them."

In addition to offering email and telephone helplines, FBN has a dedicated website section to applying for French residency, with free access to their Guide to Applying for French Residency Online.