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Karl Waheed reports that Decree No. 2019-555 and Order No. MTRT1914009A of 4 June 2019, relating to the posting of workers, were published in the Official Journal of June 5. These two texts specify the conditions of application of workers’ secondment (posting) and the fight against illegal work, as well as the activities exempted from the secondment declaration and the designation of the representative in France. They entered into force the day after their publication, except for certain provisions that will be applicable from 1 July 2019.
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Karl Waheed of Karl Waheed Avocats, Paris, has produced the following summary of the changes that have taken place in French Immigration Law over the period June 2018 to May 2019.
French Immigration Chronology June 2018 to May 2019
Posted Workers: the Directive of 28 June 2018 amends the 1996 directive on the posting of foreign workers
The new directive, which entered into force on 29 July 2018, makes substantial changes to the 1996 Directive, in particular by enshrining the principle of equal remuneration between posted workers and local workers. However, its impact on French law is limited, as the so-called hard core provisions of French labor law or mandatory provisions already applying to foreign employees seconded to France.
The 4 points to remember from the new directive:
• Equal pay between posted workers and local workers
• Extension of the labor law applicable to seconded employees
• Application of all local labor law in case of long-term secondment
• Strengthening the rights of temporary posted workers
Finally, it should be noted that under the law "Avenir professionnel", the government may, within six months of the promulgation of the law, transpose by ordinance the provisions of the directive of 28 June 2018
The law of 5 September 2018 "for the freedom to choose one's professional future" brings new details on the control of illegal work in the framework of the posting of foreign workers
The law contains a number of provisions relating to the posting of workers and the fight against illegal work.
New provisions to combat illegal work
• Duty of care of the client or owner in respect of fines imposed on his co-contractor
• Display and dissemination of sanctions on a dedicated website.( Article L8224-3 of the Labor Code
• Professional secrecy is not enforceable against screening officers (Article L8113-5-2 of the Labour Code)
• Increase in the amount of the fines for failure to declare the posting and appointment of the legal representative.
Relaxation of certain procedures for short-term postings and for foreign employers repeatedly assigning foreign workers.
• The fixed contribution of 50 Euros for the declaration of posting is repealed (Article L1262-4-6 is repealed by the law of 5 September 2018).
• Abolition of the posting declaration and the appointment of the foreign employer representative for certain short-term benefits and operations.
• Adjustment of obligations imposed on foreign employers regularly posting paid staff in France.
Presentation of the main measures that came into force on 1 March 2019 following the publication of several orders and decrees implementing the law of 10 September 10 2018 known as "Loi Collomb"
The last provisions of the law of 10 September 2018 on residence and integration entered into force on 1 March 2019. Six orders, a circular and three decrees have been issued to date concerning the application of these provisions. The measures impacting professional immigration and related family immigration are presented here.
The following provisions apply to applications filed after 1st March 2019.
Measures concerning ICT poqsted employees and ICT trainees (intra-group mobility)
Modification of the conditions for issuing ICT residence permits
- The seniority of the employee within the group of companies, prior to the temporary transfer to France, increases from three to six months.
- The seconded employee must respect a waiting period of six months outside the European Union between the end of an intragroup temporary transfer in France and a new request under the ICT system.
- The visa application can only be filed in a country outside the European Union.
Transposition of the (EU) 2016/801 Student / Researcher Directive, adopted on 11 May 2016
Replacement of the APS issued at the end of studies by a residence permit mention «recherche
job or business creation »:This temporary residence permit issued for the purpose of job search or business creation will be valid for one year.The beneficiaries of this card are:
- researchers residing in France providing proof that they have completed their research work
- students residing in France who have obtained a diploma equivalent to the degree of master or appearing on a list fixed by decree in France.
- former students who left the national territory, up to four years after graduation equivalent to the degree of master or on a list fixed by decree in France.
This card allows the exercise of any professional activity and to find a job or to create a company related to studies or research.
The conditions relating to the change of status remain the same as under the APS, in particular concerning the exemption from labour market test.
Creation of a multi-year residence permit entitled "mobility program" for students and researchers
This residence permit can be issued to foreign students and researchers in a mobility program in the EU. At the same time, foreign students and researchers admitted to stay in another EU Member State on a mobility program can stay in France for up to a year without having to apply for a residence permit.
Enlargement and security of residence cards mention «Passport Talent»
Securing the right to stay of the talent passport holder with the issuance of an APS: Any foreigner holding a long-stay visa marked "passport talent" will now be issued a Provisional Temporary Residence Permit (APS) for a period of 6 months, allowing him to return to France in case of international travel between expiry of his visa and the actual surrender of his residence permit.
Extension of the status "talent passport - qualified employee / innovative company": The system allowing the recruitment of foreign talent by companies recognized as innovative is extended to companies that do not have the status of a young innovative company within the meaning of Article 44 sexies-0 of the French Tax Code.
The company meeting the criteria will be issued by the Ministry of the Economy a certificate, which must be provided to the applicant for his visa application and / or residence permit.
In addition, the candidate's duties need not necessarily be linked to the company's research and development project, but can also, more generally, be linked to the economic, social, international and environmental development of the said project.
Extension of status "talent passport - national or international fame": The residence permit "passport talent - national or international renown" may be issued abroad whose national or international fame is established, and hence, likely to participate significantly and sustainably in economic development, management of territory or the influence of France.
The activity carried out in France may be in the artisanal domain, in addition to previous areas already authorized (scientific, literary, artistic, intellectual, educational or sports).
Provisions relating to family immigration
Reform of travel documents issued to minor aliens:
The DCEM (Minor Child Travel Document) is now the only travel document for foreign minors. The TIR (Republican Identity Title) which was reserved for foreign children born in France is deleted.
The period of validity of the document may be adjusted according to the duration of the residence permit held by the parent.
Expansion of beneficiaries of the accompanying family procedure for the statuses "talent passport" and "ICT":
The notion of family member has been extended to allow the couple's children and not only the children of the main holder of the talent passport or ICT status to benefit from the "Family" card.
Extension of rights for holders of a four-year residence permit
An alien who files an application for renewal of his four year residence permit before its expiry date, may for three months from that date, justify the legality of his stay by presenting his expired card. During this period, he retains all of his social rights and his right to pursue a professional activity.
Government Order fixes the rights of UK nationals continuing to stay in France after
in case of hard Brexit
A transition period of 3 to 12 months
UK nationals continuing their stay and professional activities beyond the Brexit date may do so, as before such date, for a minimum period of three months from the Brexit date. A decree will be published (see V below) which will set the final end date of the transition, which will be within 12 months of the Brexit date. Beyond this final end date, the UK nationals must be in possession of the appropriate permits covering their stay and professional activities in France (Article 1 of the Order).
Presence of less than 5 years
UK nationals having resided for less than 5 years as of the Brexit date will have to apply for the various permits to stay, according to their status (student, employee, temporary worker, posted worker, independent professional, unemployment beneficiary, family member, long-term visitor etc.). Such permits, when allowing work, will not be conditioned to labour market tests (Article 2).
Presence of 5 years or more
UK nationals having resided for 5 years or more in France as of the Brexit date, will be entitled to the Residency Card, with 10 year validity (Article 3).
UK national practicing law in France
UK nationals who exercise the profession of lawyer ("avocat") in France, based on their EU rights, may continue to do for a period of 12 months from the Brexit date. Such lawyers may benefit from the disposition of the Article 89 of the law of 31 December 1971 (Article 13).
Article 89 of the law of 31 December 1971 facilitates the registration of foreign lawyers with a French bar association after showing that they "effectively and regularly practiced French law on [French] national territory for a period of at least 3 years". Such activity needs to be demonstrated to the French bar association with which the foreign lawyer wishes to register. If over the three year period, the practice of French law was for a lesser period, the bar association will have the discretion to determine if the foreign lawyer has the capability of practicing French law.
Subsidiaries of law firms formed under UK law, and registered with a French bar association, on the Brexit date, may continue to pursue their activity in France beyond such date, even if no lawyer registered under a UK qualification is still practicing within such structure. No new structure under UK law may be created in France after the Brexit date (Article 16).
The Order states that the preferential treatment provided for UK national can be suspended by a State Council decree, after three months of the Brexit date, if the French government observes that the UK government has not taken equivalent dispositions [towards French nationals] (Article 19).
The ten page order is quite dense. It touches on many areas (such as recognition of professional qualifications, cross-border service provision, welfare, health coverage, jobs reserved for French and EU nationals...) on which we will welcome your questions. A decree to implement this order will soon be published.
Government Decree of 2 April 2019 specifies the conditions of issuance of the residence permits to British nationals residing regularly in France on the Brexit date and wishing to continue their stay and professional activity in France.
Decree n° 2019-264 of 2 April 2019 was published in the Journal Officiel on 3 April 2019. The following are the principle conditions of issuance of the residence permits to British nationals and their family members.
A transition period now fixed at 12 months
UK nationals and family members continuing their stay and professional activities beyond the Brexit date may do so for a maximum period of 12 months after the Brexit date. During this transition period they do not need to be in possession of a residence permit.
Residence permit application to be requested within 6 months following the Brexit
The UK nationals who wish to remain in France beyond this transition period will have 6 months after the Brexit date to apply for one of the appropriate residence permits.
How to apply for a residence permit
The decree details the documents that UK nationals and their family members will provide in support of their application according to the appropriate residence permit they are eligible to.
The amount of the tax due for the issuance of a residence permit is reduced to 100 euros for British nationals and their family members instead of 269 euros applicable to third country nationals.
Law of 10 September 2018 on asylum coming into force between January, 1st 2019 and March, 1st 2019
Resettlement: The law of 10 September 2018 adds a new disposition to the article L741-1 of the Ceseda. From now on the OFPRA can organize missions in a Non-UE State in order to assess asylum applications and then assess the resettlement of asylum seekers in situation of high vulnerability. If those people are to be protected by an international protection (asylum or subsidiary protection), they are then authorized to travel and settle in France.
However, this raises questions on the right to appeal decisions made during those missions. It seems impossible under these circumstances to file a proper appeal, since people are not on the French territory and since the CNDA (French Asylum Court of appeal), based in Montreuil, France, is the only jurisdiction competent to judge OFPRA’s decisions.
Registration time of application: The law of 10 September 10th 2018 strengthens access to the asylum procedure by reducing the deadline of application for protection after entering French territory. Asylum seekers who entered irregularly or maintained irregularly on the territory used to see their demand registered on the accelerated procedure if they registered their application more than 120 days after entering French territory. The new law reduces this deadline to 90 days. This means that if an application is registered 90 days after entering the territory, the application will be placed under the accelerated procedure.
Under the accelerated procedure, the OFPRA will rule within 15 days (art R 723-4 Ceseda) and the appeal will be judged not collegially but by a single judge which will statue within 5 weeks instead of 5 months. This reduces time to prepare the appeal itself and the hearing before the CNDA. If it considers it necessary, the judge is competent to return the case to a collegial formation of the Court.
The decision to process an application under the accelerated procedure can only be appealed before the CNDA. There is no administrative recourse against this decision.
Asylum applications of accompanying minor children: The new law allows minor children’s applications to be examined simultaneously with their parents’. If the parents are granted a different kind of protection (Refuge Status or Subsidiary Protection) the decision granting a more protective measure will be applicable to the minor (L741-1 Ceseda).
Determination of language of the procedure: Before September 2018, the language used for the proceedings could be changed in between the administrative process in front of the OFPRA and the hearing at the CNDA. The new law requires that a single language must be chosen one the day of the registration. If the applicant does not choose any language s.he can be heard in any language of which s.he has sufficient knowledge. It is important to note that the choice of language can only be appealed before the CNDA, at the very end of the asylum procedure. The applicant can be heard in French at every stage of the procedure.
Applications for residence permit during the asylum procedure:
Residence permit application can be submitted at the latest within 2 to 3 months after the asylum registration. Past that point, no application can be submitted unless there are new circumstances, for instance for health reasons.
Appeal on decisions of Dublin transfer measures: According to Dublin regulations, EU states have 6 months to organize the transfer of the applicant to the competent EU state. At the end of this time limit, the first State becomes responsible of the asylum application. Any appeal of the transfer decision must be registered within 15 days after the notification of the decision to place the applicant under the Dublin procedure. This process postpones the 6 months limit for transfer, since a new time limit of 6 month will start on the day of the decision of appeal.
Safe country of origin: The Board of Directors of the OFPRA makes a list of countries of safe provenance. If an applicant is from a country on this list, his.her application will go by the accelerated procedure. The new art L722-1 of the Ceseda now requires to take into account discriminations on the basis of sexual orientation and gender identity in order to assess a country as a “Safe Country of Origin” or not.
Authorization to work: The time limit before accessing the right to work is reduced from 9 to 6 months. This right stops if the asylum application is rejected.
Convocation “by all means” to the interview: The new law authorizes the OFPRA to convene applicants by emails or text messages. We do not have indication on confidentiality and language to be used yet. Nor do we have indication of solutions for applicants who do not have access to a computer nor a phone.
Cessation of the right to stay: The right to stay used to stop on the day of reception of the notification of the CNDA decision, the new law states that it will now stop on the day when the decision is “read in public session” which consists in a public display in the premises of the CNDA in Montreuil.
Also, this law extends the number of situations when the right to stay stops once the OFPRA reaches a decision (for instance when the applicant is from a Safe Country of Origin, when the request cannot be admitted for reconsideration etc…) This means that the appeal to the CNDA is not suspensive and appellants could be deprted before their hearing (L 743-3 Ceseda). According to the Articles L. 743-3 and L. 571-4, III of Ceseda, "the president of the administrative court or the magistrate appointed grant the request of the alien when the latter presents serious elements in merit of his asylum application, his retention on the territory during the examination of his appeal by the court ".
Appeal to the CNDA: The appeal time stay the same (1 month) but the time frame to seek for legal aid is lowered from 1 month to 15 days. Also, the application for legal aid doesn’t interrupt the deadline to appeal, the delay is only suspended. The rest of the period continues to run on the day of the legal aid decision. Also, every jurisdiction can request a video hearing. The applicant can no longer refuse.
Family Reunification: The new law extends the benefit of Family Reunification to underage brothers and sisters of a protected minor child.
Residence permit for beneficiaries of the status of stateless person or subsidiary protection: they will now benefit once the protection is attributed and from the "first admission to stay", of a four-year residence permit instead of one-year.
France - The rights of UK nationals continuing to stay in France in the case of a hard Brexit - Conditions of issuance of residence permits
Karl Waheed reports that the French government issued a decree on 2 April 2019 implementing Ordinance No. 2019-76 of 6 February 2019, which specifies the conditions for issuing residence permits to British nationals in order to continue their stay and professional activity in France after the Brexit date, in the event of no exit agreement being reached between the United Kingdom and the European Union.
The principle conditions of issuance of the residence permits to British nationals and their family members are as follows:-
1. A transition period of 12 months - UK nationals and family members continuing their stay and professional activities beyond the Brexit date may do so for a maximum period of 12 months after the Brexit date. During this transition period they do not need to be in possession of a residence permit.
2. Residence permit application to be requested within 6 months following the Brexit - The UK nationals who wish to remain in France beyond this transition period will have 6 months after the Brexit date to apply for one of the appropriate residence permits.
3. The decree details the documents that UK nationals and their family members will provide in support of their application according to the appropriate residence permit they are eligible to.
4. The amount of the tax due for the issuance of a residence permit is reduced to 100 euros for British nationals and their family members instead of 269 euros applicable to third country nationals.
Full details can be viewed by clicking the link below and choosing News/Newsletters/ Client alert, 4 April 2019. Here you can also find the Client alert, 13 February 2019, which provides additional details of Ordonnance n° 2019-76 of 6 February 2019 outlining various measures relating to entry, stay, social rights and professional activity.
The last provisions of the law of 10 September 2018 on residence and integration entered into force on 1 March 2019.
These provisions include:-
1. Measures concerning ICT seconded employees and ICT trainees ( intra-group mobility)
2. Transposition of the EU 2016/801 Student/Researcher Directive, adopted on 11 May 2016
3. Creation of a multi-year residence permit entitled “mobility program” for students and researchers
4. Enlargement and security of residence cards “ Passport Talent”
5. Provisions relating to family immigration
6. Extension of rights of a four year residence permit
Full details can be viewed by clicking the link below and choosing News/Newsletters/ Client alert, 18 March 2019.
Karl Waheed published a document entitled "Client Alert - Professional Immigration News" on 21st November 2016. This document explains the effect of the implementation of "The Law on the Rights of Foreigners in France" dated 7th March 2016. It covers all the decrees and orders that have followed establishing the legislative and regulatory framework for professional immigration in France. To read the document please click here
The Law on the Right of Foreigners in France was promulgated 7 March 2016 and published in the Official Gazette on 8 March 2016. Some provisions reshuffle in depth categories and duration of residence permits and the system of work permits on labor migration.
This law creates the Talent Passport category for highly skilled workers which provides for a residence permit valid for up to four years. The entry into force of these provisions is postponed to a date to be fixed by decree no later than 1 November 2016. In the absence of implementation decrees there is uncertainty on changes to the current immigration processes.
To read the full article on this topic please click here.
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