France has traditionally been a country with a fairly open border policy,
but there have been recent efforts, as reflected in a July
2006 law, to
restrict the immigration of unskilled workers and persons
who would become a burden on the French State. Recent
legislation has made French nationality
requirements via marriage more difficult. Considerable
discretionary power
has been given to the French Consulates in their decisions
to grant or deny
visas. There has however been a streamlining of procedures
for entry of
professionals and group-level transfers to France. This is
merely a short
summary of an increasingly complex area of French law. We
shall briefly look
at visa issues, both professional and family, and then look
at French
nationality questions relating to foreigners.
The need for an entry permit
A distinction is made under French law between a
"visa" and a "stay
document" (carte de séjour). A long stay visa,
or entry permit, is required for all persons requesting a stay document. This essentially
means that the
alien must go through a French Consular authority and be
approved to enter
the country. Of course, for members of the OECD countries,
including the
United States, no such long stay visa is required for trips
to France under
90 days.
However a visa, or entry permit, is required for all persons
entering France intending to remain there for greater than 90 days and/or
work or study in France. While exceptions to the need for an entry permit, or
long stay visa, are provided (especially for spouses of French citizens),
the general rule is that a person will not be issued a stay document or carte
de séjour, unless they have been approved by a foreign Consulate. This
means that the
great majority of people must begin their immigration to
France by preparing a petition to the French Consulate having jurisdiction over
their residence.
Short stay visas
There is a harmonization of rules across the European Union
for short-stay visas (called "Schengen Visas"), allowing free
movement in the Schengen space (Europe). There are various types of such visas,
whether for business or pleasure, issued by one of the European member states to
the Schengen
convention. The visa is granted for one or multiple stays
for no more than three months per every six months. A short stay visa is
required for a brief entry into France, unless the alien is a non EU citizen or
who is subject to a visa waiver (the nations of the OECD 'United States,
Australia, Canada, Korea, Japan, Malaysia, Mexico, New Zealand; and for
European countries, Norway, Switzerland and Turkey).
Long stays in France (longer than three months)
Long stay visas (visa de long séjour) are only given by
Consular authorities and they are a prerequisite to obtaining the right to remain
in France and to obtain a stay card (carte de séjour).
There is an intermediate visa, between the short stay visa
and the long stay visa, for stays of six months, and which
do not require that the alien obtain a stay card. But this visa has only limited uses and
most people who wish to remain in France will need to make an application
for a long stay visa, with or without the assistance of counsel.
One unusual feature of France's immigration system is that
it allows aliens to request "retirement" visas, which will be
granted for long periods of time as long as the economic conditions are met.
A long stay visa is required in particular by aliens who
wish to obtain a stay card as a "visitor", « employee », «
student », or « family » visa, especially for spouses or PACS partners (allowing same sex
couplings)
Work visas.
In spite of recent efforts to restrict the immigration of
unskilled foreigners to France, France has nevertheless kept its
borders open to skilled workers and the rules have been made ever more
favourable to group companies and international service agreements.
France has recently opened its borders to foreign (non EU)
workers via a number of recent reforms. A number of categories of work
permit and temporary work visas exist, notably a new hire of a foreign
person, the transfer of a foreign employee to France for a limited time
to perform a specific function, and special provisions for high-level
employees of international groups. A special provision is provided for
foreigners sent to
France to open a representative office of a foreign company.
A foreign professional may also obtain a work visa as an independent
(non-salaried) professional or officer of a French company. Specific
categories are provided for scientists performing research work or
performing a teaching position at a university level, artists/performers and
musicians, film
artists, living language teachers, secondary school teachers
via exchange programs, university teachers and other teachers of higher
learning, researchers, interpreter/guides, camp counsellors, air
pilots and crew, models, bull-fighters, student interns, professional
interns, students requesting the right to work during period of study or
during vacation periods, public service hospital workers, and private
medical and pharmacy professionals.
Three options exist for international intra-company and
affiliate cross-border transfers of key personnel: (1) the favoured
high level
executive (cadre dirigeant) category, (2) temporary employee
transfer (detachment) category, and (3) the common law regime new
hire category.
The first category mentioned, the high level executive
category, allows for considerable time savings but has stringent requirements
regarding minimum salary, seniority with the group and existence of group
relationship. The
temporary employee transfer category may provide a
short-term solution where the minimum pay or international group criteria are not
satisfied for the high level executive category. Finally if employment in
France shall be long-term, the new hire option is more time-consuming, but
is a viable option.
Under the standard procedure for application for a work
permit, the French employer prepares the petition, often with the assistance of
French counsel.
The petition involves submission of the employee's (and
accompanying family's)
personal documents and diplomas, with sworn translation if
not in French, with letters/certifications from the French employer
explaining the need for the foreign worker, and information regarding the lodging of
the employee and an undertaking to pay Immigration Office (ANAEM) dues.
This file is
presented to the DDTEFP. At the same time, a job posting is
made at the regional French Unemployment Office (ANPE). A certification
of job posting for five weeks is then submitted to the DDTEFP, who then
rules on the application. The DDTEFP thereafter sends the approved file
to the ANAEM, who performs a cursory review and then forwards the file to the
French Consulate abroad. The employee must appear personally at the foreign
Consulate to
process the entry visa. Immediately upon arrival in France
the employee (and accompanying family) must submit to a medical examination,
and will thereafter be issued a work permit (carte de séjour salariée).
Family immigration
Spouses of French citizens have a right to a long stay visa
and a family stay card as of right, absent fraud, and for spouses from
visa waiver countries, no long stay visa is required. The spouse can
acquire a right to permanent residence, provided the marriage was celebrated at
least two years prior to the permanent residency request. Furthermore,
children (less than 21 years of age) of a French parent also have a right to
permanent
residence. Also, the parent of a French citizen may request
permanent residence, provided that the parent is a dependent of the
French citizen.
Furthermore, the minor children of aliens established
legally in France can also be sponsored for visas to return to the family unit.
France still has a very favourable framework for retirees,
where unlike the United States a special visa category still exists. Nothing
in the reform has changed France's unique acceptance of same-sex couples,
allowing an alien to enter into a same-sex marriage contract (PACS) to
facilitate the obtaining of a visa for the alien partner, provided the
economic criteria are met.
Acquiring French nationality
If the foreign-born person is the child of a French parent,
citizenship may
be obtained as of right by making a petition for a French
nationality
certificate. The individual need not reside in France to
make this
application. Foreign-born persons with a French spouse may
claim French
citizenship following four years of marriage.
Furthermore, foreign-born persons may request to be
naturalized if such
persons have resided continuously in France for five years
prior to filing
of the request. French nationality in this case is given in
the discretion
of the French High Administrative Authority (Conseil d'Etat)
if the French
speaking person can show that his acts in France have been
meritorious and
contributing to French prosperity. The above-mentioned
five-year period may
be reduced to two years if the foreign-born person successfully performed
two years of higher education in France. This request is
made at the
Préfecture where the foreign-born person resides. A reply
is given to the
request within 18 months of the request (although in
practice this may take
longer).
Dual nationality
Dual nationality is not expressly provided for in French
law, but is
recognized. Thus a child born abroad in a country which
applies the rights
of nationality based on place of birth, where such child may
also claim
nationality through parentage, will have dual nationality.
Dual nationality
may also be obtained through naturalization, by marriage, by
transfer of a
territory or by independence of a State (such as Algeria in
1962).
French law does not require that when a foreigner becomes
French he renounce
his original nationality, or that a French person renounce
French
nationality when he/she acquires foreign nationality.
Nevertheless, the
French government applies the Convention of May 6, 1963
which provides that
former nationality is lost in respect of national laws of
signatory states
whose laws provide for loss of nationality, such as Germany.
The effects of
this Convention was substantially reduced by a 1993
amendment signed between
France, Italy and the Netherlands, which provides that dual
nationality
shall be permitted under certain conditions. French-U.S.
dual nationality is
not subject to restriction. French nationality may be
renounced by
declaration made to the foreign Consulate.
Asylum in France
French law recognizes rights to asylum or political refugee
status for a
foreign-born person who is subject to persecution by a
sovereign or
non-sovereign authority. Asylum may be granted further to
the rules of the
Geneva Convention, where the petitioner can establish
that he/she is
persecuted in his/her country due to race, religion,
nationality, belonging
to a social group or due to his/her political opinions.
Asylum may also be
granted by reference to the 1946 French Constitution based
upon persecution
due to actions in favour of freedom. Refugee or asylum
status is requested
at
the French Office for Protection of Refugees and Expatriates
(OFPRA). After
the OFPRA issues a certificate of deposit of the request,
the petitioner
must go to the Préfecture where he resides, which will
issue a receipt of
request for asylum, valid for three months. If the
petitioner is admitted
under asylum status and he/she has a long stay visa, the Préfecture
will
issue a receipt valid for a six month stay, which is
renewable until the
OFPRA issues its final decision. If OFPRA's reply is
positive, the
petitioner may claim a residency card.
Appeal of refusals
Whether for a visa refusal or a denial of nationality, the
French system of
justice enables the individual to appeal the decision by
either making an
additional, formal request for reconsideration, or a
hierarchical review, or recourse to the courts.
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