The vast majority of people have obtained their new residence document under the Withdrawal Agreement (WA) without difficulty. So this article is, we hope, one that most of you will never need to refer to.
As you know, France has adopted a constitutive system, meaning that we all have to apply for a new residence status and card under the WA. And just occasionally there can be problems in the application system. Maybe your situation is borderline and you’re not sure that you’ll be able to meet the conditions for residence, or perhaps you’ve been refused a residence status or document under the WA.
On this page we explain the circumstances under which you may be refused a right of residence under the WA, outline what the WA and the EU Commission’s Guidance Note say about refusal of or restrictions to your right of residence, and provide you with some resources which may help if you are encountering difficulties or you think you may do so.
As you know, France has adopted a constitutive system, meaning that we all have to apply for a new residence status and card under the WA. And just occasionally there can be problems in the application system. Maybe your situation is borderline and you’re not sure that you’ll be able to meet the conditions for residence, or perhaps you’ve been refused a residence status or document under the WA.
On this page we explain the circumstances under which you may be refused a right of residence under the WA, outline what the WA and the EU Commission’s Guidance Note say about refusal of or restrictions to your right of residence, and provide you with some resources which may help if you are encountering difficulties or you think you may do so.
Under what circumstances can you be refused a right of residence under the WA?
(a) If you are outside the personal scope of Title II of the WA
This would apply, for example, if you moved to France for the first time after 31 December 2020, or you are moving as a family member to join a spouse or partner with whom you were not already in a relationship on 31 December 2020, or if your circumstances are otherwise not covered by Article 10 of the WA. For more information about who is within the personal scope of the WA, see our explainer here.
(b) If you don’t meet the conditions to be legally resident under the WA
To be legally resident under the WA, during the first 5 years of your residence you must fall into one of the following categories: employed, self-employed, non economically active but living on your own resources and self-sufficient, student, bona fide jobseeker. There are conditions attached to each category: for example, if you are self-sufficient you must have comprehensive health insurance and show that you have sufficient income not to be an unreasonable burden on the social security system of your host country. You must meet these conditions throughout the first 5 years of your residence in your host country. Your close family member (of any nationality) who doesn’t meet the conditions for residence in their own right is also covered if you are legally resident. You can find out more about the conditions in our explainer here.
(c) If you previously met the conditions for legal residence but you have broken your continuity of residence due to absence from your host country
This would be the case if you have been absent from your host country for longer than the relevant permitted period. See more about permitted absences in our explainer here.
(d) If you you missed the deadline for applying for your new residence status, and your préfecture doesn’t consider that you had reasonable grounds for your failure to respect the deadline
The WA says that if you miss the application deadline, your host country has to look at whether you had reasonable grounds for your late application. Neither the WA nor the Guidance Note give concrete examples of what reasonable grounds might be, but the Guidance Note says that your host country must make an assessment of “all the circumstances and reasons” for not respecting the deadline. It will only process your application if it is satisfied that you had reasonable grounds for not applying within the deadline.
Here in France, the original deadline, outlined in the décret, for applying for a new status and card was 30 June 2021. On 1 July the French government announced that the portal would stay open until 30 September 2021 for those who had been unable to apply before 30 June. However, at this point there is no clarity on whether applications made between 1 July and 30 September will be treated in the same way as those made before the original deadline, or whether applicants will now have to show that they had reasonable grounds for applying late. We have asked an urgent question on this to the Ministry of the Interior but have not yet had a response. We strongly advise everyone applying now to include in the comment box on the application form a short explanation of why they were unable to apply before 30 June.
(e) On personal conduct grounds
EU free movement rules allow a member state to restrict a person’s right of residence if their personal conduct poses a genuine, present and sufficiently serious threat to public policy or public security. The WA also includes such provisions, in Article 20, which apply to everyone covered by Title II - for example, to frontier workers, close family members and extended family members as well as right holders. It differentiates between conduct which occurred before the end of the transition period (31 December 2020) and that which occurred afterwards.
(i) Conduct which occurred before the end of the transition period
The WA says that your host country can remove you from its territory if you have abused your rights or have committed fraud in order to obtain WA rights (Article 20(3)). It can do this even before you have received a final judgement in any appeal that you have made (Article 20(4), unless you also applied for an interim order to suspend enforcement of the removal decision. You must however be allowed to submit your defence in person.
Both abuse and fraud in a similar context (right of residence under EU free movement rules) have been given precision by EU case law. Abuse may be defined as ‘an artificial conduct entered into solely with the purpose of obtaining a right of residence which, albeit formally observing of the conditions, does not comply with the purpose of those rules’. Fraud may be defined as ‘deliberate deception or contrivance made to obtain the right of residence’ and is likely to be limited to forgery of documents or false representation of a material fact concerning the conditions attached to the right of residence. For more detail about this, see Section 4 of this Circular from the European Commission.
This would apply, for example, if you moved to France for the first time after 31 December 2020, or you are moving as a family member to join a spouse or partner with whom you were not already in a relationship on 31 December 2020, or if your circumstances are otherwise not covered by Article 10 of the WA. For more information about who is within the personal scope of the WA, see our explainer here.
(b) If you don’t meet the conditions to be legally resident under the WA
To be legally resident under the WA, during the first 5 years of your residence you must fall into one of the following categories: employed, self-employed, non economically active but living on your own resources and self-sufficient, student, bona fide jobseeker. There are conditions attached to each category: for example, if you are self-sufficient you must have comprehensive health insurance and show that you have sufficient income not to be an unreasonable burden on the social security system of your host country. You must meet these conditions throughout the first 5 years of your residence in your host country. Your close family member (of any nationality) who doesn’t meet the conditions for residence in their own right is also covered if you are legally resident. You can find out more about the conditions in our explainer here.
(c) If you previously met the conditions for legal residence but you have broken your continuity of residence due to absence from your host country
This would be the case if you have been absent from your host country for longer than the relevant permitted period. See more about permitted absences in our explainer here.
(d) If you you missed the deadline for applying for your new residence status, and your préfecture doesn’t consider that you had reasonable grounds for your failure to respect the deadline
The WA says that if you miss the application deadline, your host country has to look at whether you had reasonable grounds for your late application. Neither the WA nor the Guidance Note give concrete examples of what reasonable grounds might be, but the Guidance Note says that your host country must make an assessment of “all the circumstances and reasons” for not respecting the deadline. It will only process your application if it is satisfied that you had reasonable grounds for not applying within the deadline.
Here in France, the original deadline, outlined in the décret, for applying for a new status and card was 30 June 2021. On 1 July the French government announced that the portal would stay open until 30 September 2021 for those who had been unable to apply before 30 June. However, at this point there is no clarity on whether applications made between 1 July and 30 September will be treated in the same way as those made before the original deadline, or whether applicants will now have to show that they had reasonable grounds for applying late. We have asked an urgent question on this to the Ministry of the Interior but have not yet had a response. We strongly advise everyone applying now to include in the comment box on the application form a short explanation of why they were unable to apply before 30 June.
(e) On personal conduct grounds
EU free movement rules allow a member state to restrict a person’s right of residence if their personal conduct poses a genuine, present and sufficiently serious threat to public policy or public security. The WA also includes such provisions, in Article 20, which apply to everyone covered by Title II - for example, to frontier workers, close family members and extended family members as well as right holders. It differentiates between conduct which occurred before the end of the transition period (31 December 2020) and that which occurred afterwards.
(i) Conduct which occurred before the end of the transition period
- The WA says that in the case of personal conduct which occurred before the end of the transition period, France must use EU free movement rules to determine whether it can restrict your right to residence.
- These are set out in Chapter VI of Directive 2004/38/EC.
- Chapter VI sets out a number of safeguards before a decision to restrict a person’s right of residence may be made, including a requirement to take into account the age, health, family relationships and social and cultural integration of the individual (Article 28(1)).
- Any decision to restrict your right of residence on conduct grounds must be taken on a case-by-case basis, and only where your personal conduct represents a genuine, present and sufficiently serious threat affecting one of the fundamental interests of the society of your host country (Article 27(2)).
- If your préfecture considers that your personal conduct represents a threat that is serious enough to warrant a restrictive measure, they must carry out a proportionality assessment to decide whether you can be denied entry or removed on grounds of public policy or public security. Previous criminal convictions do not in themselves constitute grounds for taking such measures (Article 27(2)).
- If you have permanent residence status, after 5 years of legal residence in your host country, you can only be expelled on serious grounds of public policy or public security (Article 28(2)). If you have been resident in France for 10 years or more, you can only be expelled on imperative grounds of public security, and not on grounds of public policy (Article 28(3). This also applies to minors.
- It goes without saying that this is a serious and complex area and therefore that if you think any of it may be relevant to you, you should seek advice from an experienced immigration lawyer at the earliest opportunity.
- For background, you’ll find more detail in Section 3 of the European Commission’s guidelines for better transposition and application of Directive 2004/38/EC, which you can find here.
- The WA says that in the case of conduct which occurred after the end of the transition period, any decision taken to restrict your right of residence in France should be taken in accordance with national immigration law. You can find some information about how France approaches this here.
- This means that France will apply its own rules and policies and you would not be protected by the rules outlined in the previous paragraph.
- Once again, this is a serious and complex area and if you think any of it may be relevant to you, you should seek advice from an experienced immigration lawyer in your host country at the earliest opportunity.
The WA says that your host country can remove you from its territory if you have abused your rights or have committed fraud in order to obtain WA rights (Article 20(3)). It can do this even before you have received a final judgement in any appeal that you have made (Article 20(4), unless you also applied for an interim order to suspend enforcement of the removal decision. You must however be allowed to submit your defence in person.
Both abuse and fraud in a similar context (right of residence under EU free movement rules) have been given precision by EU case law. Abuse may be defined as ‘an artificial conduct entered into solely with the purpose of obtaining a right of residence which, albeit formally observing of the conditions, does not comply with the purpose of those rules’. Fraud may be defined as ‘deliberate deception or contrivance made to obtain the right of residence’ and is likely to be limited to forgery of documents or false representation of a material fact concerning the conditions attached to the right of residence. For more detail about this, see Section 4 of this Circular from the European Commission.
What can you do if your situation is complicated or borderline and you think you may not meet the residence conditions or may be refused residence for another reason?
If you think you may be refused a residence document or status, you should seek help and advice.
- Contact the embassy’s Citizens’ Rights team. You can do this by email, or by phone on this number: 01 44 51 31 00
- Contact one of the UK Nationals Support Fund organisations. See the bottom of this page for more details.
- Contact the European Commission’s Your Europe Advice (YEA) service. YEA consists of a team of 65 lawyers who cover all EU official languages and are familiar with the Withdrawal Agreement, EU law and national laws in all EU countries. You’ll receive free and personalised advice within a week. You can find out more here.
- Contact an experienced immigration lawyer - but you will need to check first whether they are able to advise on the Free Movement Directive and the WA. Ask that question specifically and make clear that you are not simply looking for national immigration advice in relation to third country nationals in the country where you live.
WHAT CAN YOU DO IF YOU'VE BEEN REFUSED RESIDENCE UNDER THE WA OR IF YOUR RESIDENCE RIGHTS HAVE BEEN RESTRICTED?
If you are refused residence rights under the WA or your residence rights are withdrawn or restricted, you must be notified in writing by your préfecture. This must be done in such a way that you can understand the content and its implications for you, and you must be informed of the grounds on which the decision has been based. The letter may however be written in French and might not be written in or translated into English.
In France this is always done via LRAR - lettre recommandée avec accusé de réception (a letter for which you must sign on receipt). An informal refusal given at your préfecture doesn't count. Many préfectures are contacting people simply to say that they are 'not currently proceeding with their dossier' if, for example, there is an issue with the information provided or they are not sure that the conditions have been fully met. This gives you a chance to rectify things rather than simply being refused.
The Ministry of the Interior has always said that it wants everyone who was legally resident in France on 31 December 2020 to be able to obtain a new residence status and permit without difficulty. You'll be reassured to know that in a circular which it sent to all préfectures in November, it 'strongly invited' any préfecture which is considering refusing status to contact the Ministry team before doing so - see the very last paragraph of the circular here.
In France this is always done via LRAR - lettre recommandée avec accusé de réception (a letter for which you must sign on receipt). An informal refusal given at your préfecture doesn't count. Many préfectures are contacting people simply to say that they are 'not currently proceeding with their dossier' if, for example, there is an issue with the information provided or they are not sure that the conditions have been fully met. This gives you a chance to rectify things rather than simply being refused.
The Ministry of the Interior has always said that it wants everyone who was legally resident in France on 31 December 2020 to be able to obtain a new residence status and permit without difficulty. You'll be reassured to know that in a circular which it sent to all préfectures in November, it 'strongly invited' any préfecture which is considering refusing status to contact the Ministry team before doing so - see the very last paragraph of the circular here.
Appealing against a refusal
A formal refusal letter must tell you how and where you can appeal against the decision, and what the time limit is for such an appeal. Any appeal will consider the legality of the decision that was made as well as the facts and circumstances on which it was based.
If you do receive a formal refusal letter, we strongly advise you to contact an experienced immigration lawyer. Remember to check first whether they are able to advise on the Free Movement Directive and the WA. Ask that question specifically and make clear that you are not simply looking for national immigration advice in relation to third country nationals in France. You will need to do this quickly as there are strict time limits on appeals.
If you have been refused residence status because you do not meet the required conditions (see Section 1(b) above), the WA says that no restrictive measures can be applied until a final decision has been made on your application (Article 18(3). This means that if you appeal, your status will be protected until your national court has made its judgement on your appeal.
In France there are 3 possible recours - appeals - open to you if your application has been refused:
Below we tell you a little bit about each of these.
If you do receive a formal refusal letter, we strongly advise you to contact an experienced immigration lawyer. Remember to check first whether they are able to advise on the Free Movement Directive and the WA. Ask that question specifically and make clear that you are not simply looking for national immigration advice in relation to third country nationals in France. You will need to do this quickly as there are strict time limits on appeals.
If you have been refused residence status because you do not meet the required conditions (see Section 1(b) above), the WA says that no restrictive measures can be applied until a final decision has been made on your application (Article 18(3). This means that if you appeal, your status will be protected until your national court has made its judgement on your appeal.
In France there are 3 possible recours - appeals - open to you if your application has been refused:
- A recours gracieux: to the préfet;
- A recours hiérarchique: to the Minister of the Interior;
- A recours contentieux: to the Tribunal Administratif.
Below we tell you a little bit about each of these.
Recours gracieux
- This is addressed to the préfet of your department, whose responsibility it is to oversee the issue of all residence cards.
- You are asking for the decision to be reviewed and that you be granted a residence status and card.
- In other words you are claiming that the refusal decision is incorrect and that you should be considered to meet the conditions for legal residence under the WA.
- You need to have good reasons to make this claim, and you need to be able to explain what those reasons are. You will need to be able to show exactly how you meet the conditions - it is not enough just to say that you believe you should be given residence status.
- If you do choose to make this appeal yourself, here is a link to a draft letter produced by GISTI that you can use to formulate your appeal.
Recours hiérarchique
- This is addressed to the Minister of the Interior, and it will be examined by the head of the department which oversees residence cards.
- You are asking for the decision to be reviewed and that you be granted a residence status and card.
- In other words you are claiming that the préfecture's refusal decision is incorrect and that you should be considered to meet the conditions for legal residence under the WA.
- You need to have good reasons to make this claim, and you need to be able to explain what those reasons are. You will need to be able to show exactly how you meet the conditions - it is not enough just to say that you believe you should be given residence status.
- In this instance you should send copies of all relevant supporting evidence with your appeal (for example, details of your resources if you've been refused on grounds of insufficient resources).
- The Ministry will request details from the préfecture and review the decision.
- You don't need to use an avocat to make this appeal, but it is advised that you do so.
- Here is a link to a draft letter produced by GISTI that you can use to formulate your appeal.
Recours contentieux
- This is the most effective method of appealing a refusal decision, but it does entail using a specialist immigration avocat.
- If you are on a low income you may qualify for aide juridictionnelle (legal aid) - see this link.
- It is a long process and if the refusal decision isn't accompanied by an OQTF (obligation de quitter le territoire français - see below) may take up to a year.
- The aim of the appeal will be to have the decision annulled by contesting its legality. This may be done on ignorance of the facts, incorrect application of the facts, error in interpretation of the law or on incorrect procedure.
- A recours contentieux must be submitted within 2 months of the decision being appealed. This is important, as if you have gone down either of the previous two routes (gracieux or hiérarchique) you may find yourself out of time. This is why we recommend that you speak to an experienced avocat before deciding how to proceed.