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.
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.
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 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).
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).
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.
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 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.
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.
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.