Over the past few years an increasing number of British citizens have applied for and successfully acquired French citizenship, by declaration or by decree. As a French citizen of course you don't need to rely on the Withdrawal Agreement in order to live in France - you have an unconditional right to be here and while in France you are treated as a French citizen in every respect. Because of that, most dual nationals haven't given any thought to the benefits of also proving that they are covered by the Withdrawal Agreement, as a British citizen.
However, there are aspects of the Withdrawal Agreement that confer rights that you don't have automatically as a French citizen, or confer better rights than those enjoyed by French citizens.
The European Commission has confirmed that dual nationals are covered by the Withdrawal Agreement if they first came to France using their free movement rights and subsequently acquired French citizenship. However, the Ministry of the Interior is currently still not permitting applications under the WA from dual UK-French nationals. We have brought this up many times and have most recently sent a detailed paper to the Ministry outlining why it is important.
On this page we outline the main points in that paper so that the situation is clear and transparent to all.
However, there are aspects of the Withdrawal Agreement that confer rights that you don't have automatically as a French citizen, or confer better rights than those enjoyed by French citizens.
The European Commission has confirmed that dual nationals are covered by the Withdrawal Agreement if they first came to France using their free movement rights and subsequently acquired French citizenship. However, the Ministry of the Interior is currently still not permitting applications under the WA from dual UK-French nationals. We have brought this up many times and have most recently sent a detailed paper to the Ministry outlining why it is important.
On this page we outline the main points in that paper so that the situation is clear and transparent to all.
Why is this an issue?
- We are aware that UK/French dual nationals are currently unable to apply for residence status under the WA even if they arrived in France via the exercise of their EU free movement rights and subsequently acquired French citizenship. However, the 2017 Lounes judgement of the CJEU applies to this group of dual nationals. This judgement (C‑165/16) held that an EU citizen who used their free movement rights to move to a new EU country, and later acquired nationality of that country, should not lose their rights under Directive 2004/38/CE even though they have become citizens of their state of residence. The European Commission’s Guidance Note makes it clear that Lounes dual nationals are covered by the Withdrawal Agreement (see below).
- The European Commission has made it clear that in constitutive countries like France, dual nationals who wish to be covered by the Withdrawal Agreement must apply by the application deadline.
- In spite of the fact that Lounes dual nationals are clearly within scope of the Withdrawal Agreement, we understand that no other system of evidencing WA rights has so far been proposed by France for this group, leaving them without proof that they are covered by the Agreement. This is a potentially serious situation for those who may need or wish to rely on their WA rights after 30 June 2021.
Why may a UK/French dual national need to rely on their rights under the Withdrawal Agreement?
It is of course the case that French citizenship confers an unconditional right of residence in France and therefore that UK/French dual nationals have no need to rely on the provisions of Title II of the Withdrawal Agreement in this regard.
However, Title II also confers rights other than residence rights on those who are within its scope: the right to recognition of professional qualifications obtained in the UK, and the right to family reunification.
1. Recognition of professional qualifications
If a UK citizen resident in France holds professional qualifications which have been recognised before the end of the transition period under EU rules (Directive 2005/36/EC), the Withdrawal Agreement ensures the continued validity and effectiveness of that recognition decision. It is not clear whether France will continue to recognise such qualifications if they are held by a UK/France dual national whose rights under the Withdrawal Agreement have not been evidenced.
2. Family reunification
While it is the case that a French citizen may have the right to be joined in France by certain family members, in some instances the rights to family reunification that are included in the Withdrawal Agreement may be more generous than those accorded to a French citizen, as they mirror those in Directive 2004/38/EC.
Example:
Sarah moved from the UK to France 20 years ago using her free movement rights. 8 years ago she became a French citizen by décret. She is an only child, and her mother lives alone in the UK. Sarah knows that if her mother’s situation in the UK deteriorates in future she may need to bring her to France so that she can care for her. Article 10(1)(e)(ii) of the Withdrawal Agreement allows her to do this providing that her mother is dependent on her at that time. Neither the Withdrawal Agreement not Directive 2004/38/EC strictly define the concept of dependence, but CJEU case law has made it clear that “any family member who, for whatever reason, proves unable to support himself in his country of origin and in fact finds himself in such a situation of dependence that the material support provided by the Union citizen is necessary for his subsistence is to be considered to be a dependant for the purpose of Article 2(2)(c) of Directive 2004/38”, that “the situation of dependence must exist in the applicant’s State of origin and must be assessed by the authorities of the host Member State at the time when he applies to join the citizen on whom he claims to be dependent”, and that “this may be proved by any means” (Reyes, C‑423/12).
As a parent of a French citizen, Sarah’s mother may of course also have the right to apply to join her daughter in France under French national law (article 311-14.2° of Ceseda). However, the conditions for dependency and proofs required here are more onerous than those applied under the Withdrawal Agreement, and her mother may not be able to meet these even though she may be considered as dependent under the Withdrawal Agreement. In addition, because UK pensions are so low Sarah’s mother may not be able to meet the income requirements for a VLS/TS ‘visiteur’, the only other route available to her to join her daughter in France.
As a UK citizen who is covered by the Withdrawal Agreement Sarah has a legal right to rely on its provisions, as does her mother if she is deemed to be dependent on Sarah. But her mother can only rely on the Withdrawal Agreement in order to join her daughter if Sarah herself can show that she is covered by it as a dual UK/French national. Without evidence of such coverage, how is she able to do so?
3. You have a child wanting to attend university in the UK
Thanks to advocacy from British in Europe, British students living in the EU/EEA/Switzerland will continue to benefit from home fees if they choose to study at an English university for a 7 year transition period, until December 2027. If you have a student child who might want to take advantage of this, having proof that you are covered by the WA will be the easiest way to prove their entitlement. It's possible to apply without proof of WA coverage, but the paper trail required will be much, much more difficult.
However, Title II also confers rights other than residence rights on those who are within its scope: the right to recognition of professional qualifications obtained in the UK, and the right to family reunification.
1. Recognition of professional qualifications
If a UK citizen resident in France holds professional qualifications which have been recognised before the end of the transition period under EU rules (Directive 2005/36/EC), the Withdrawal Agreement ensures the continued validity and effectiveness of that recognition decision. It is not clear whether France will continue to recognise such qualifications if they are held by a UK/France dual national whose rights under the Withdrawal Agreement have not been evidenced.
2. Family reunification
While it is the case that a French citizen may have the right to be joined in France by certain family members, in some instances the rights to family reunification that are included in the Withdrawal Agreement may be more generous than those accorded to a French citizen, as they mirror those in Directive 2004/38/EC.
Example:
Sarah moved from the UK to France 20 years ago using her free movement rights. 8 years ago she became a French citizen by décret. She is an only child, and her mother lives alone in the UK. Sarah knows that if her mother’s situation in the UK deteriorates in future she may need to bring her to France so that she can care for her. Article 10(1)(e)(ii) of the Withdrawal Agreement allows her to do this providing that her mother is dependent on her at that time. Neither the Withdrawal Agreement not Directive 2004/38/EC strictly define the concept of dependence, but CJEU case law has made it clear that “any family member who, for whatever reason, proves unable to support himself in his country of origin and in fact finds himself in such a situation of dependence that the material support provided by the Union citizen is necessary for his subsistence is to be considered to be a dependant for the purpose of Article 2(2)(c) of Directive 2004/38”, that “the situation of dependence must exist in the applicant’s State of origin and must be assessed by the authorities of the host Member State at the time when he applies to join the citizen on whom he claims to be dependent”, and that “this may be proved by any means” (Reyes, C‑423/12).
As a parent of a French citizen, Sarah’s mother may of course also have the right to apply to join her daughter in France under French national law (article 311-14.2° of Ceseda). However, the conditions for dependency and proofs required here are more onerous than those applied under the Withdrawal Agreement, and her mother may not be able to meet these even though she may be considered as dependent under the Withdrawal Agreement. In addition, because UK pensions are so low Sarah’s mother may not be able to meet the income requirements for a VLS/TS ‘visiteur’, the only other route available to her to join her daughter in France.
As a UK citizen who is covered by the Withdrawal Agreement Sarah has a legal right to rely on its provisions, as does her mother if she is deemed to be dependent on Sarah. But her mother can only rely on the Withdrawal Agreement in order to join her daughter if Sarah herself can show that she is covered by it as a dual UK/French national. Without evidence of such coverage, how is she able to do so?
3. You have a child wanting to attend university in the UK
Thanks to advocacy from British in Europe, British students living in the EU/EEA/Switzerland will continue to benefit from home fees if they choose to study at an English university for a 7 year transition period, until December 2027. If you have a student child who might want to take advantage of this, having proof that you are covered by the WA will be the easiest way to prove their entitlement. It's possible to apply without proof of WA coverage, but the paper trail required will be much, much more difficult.
Note that you don't need to have proof of being covered by Title II of the WA in order to safeguard your social security rights: export of benefits, uprating of your UK pension, aggregation of pension contributions etc. This is because social security coordination issues are covered in Title III of the WA, which has different (and wider) scope. The UK has already published its guidelines showing how they will verify that people are covered under Title III, which you can read here.
3. What does the Withdrawal Agreement and the Commission’s guidance say?
- The term ‘UK national’ is defined in Article 2(d) of the Withdrawal Agreement.
- The Guidance Note produced by the European Commission has given precision to whether dual nationals are within the scope of Article 10 of the Agreement, based on jurisprudence from the CJEU. Paragraph 1.2.1 of this note states that “dual EU/UK nationals are covered by the Agreement if, by the end of the transition period, they have exercised free movement residence rights in the host State of which they hold nationality (Case C-165/16 Lounes), and also that “dual EU/UK nationals who acquired nationality of the host State even after the end of the transition period are covered by the Agreement by analogy with Case C-165/16 Lounes”.
- On February 2021 the European Commission published an FAQ document for UK nationals resident in France. Question 2.20 on page 10 of this document asks: “Back in 2006, I came to the host EU state to work, relying on my British nationality. Recently, I have obtained citizenship of the host EU state. As a dual EU/British national, what is my status?” The Commission response is as follows: “Your nationality of the host EU state gives you an unconditional right of residence there. Since your naturalisation, your residence in the host EU state is no longer under the Free Movement Directive. Because your residence was under EU free movement law by virtue of your British nationality, on the other hand, this ensures that you continue to be covered by the Withdrawal Agreement. Your nationality of the host EU state gives you an indefinite right to reside there. You can also rely on the Withdrawal Agreement, for example, for family reunion rights, provided that you apply for the new residence status before the end of the grace period.”
4. What have we done about this?
Of all the constitutive countries, France has the highest population of UK nationals and the highest number of UK/French dual nationals who are within the scope of the Withdrawal Agreement. All of them have the right to rely on its provisions if they need or choose to do so, regardless of their simultaneous status as a French national. While other constitutive countries (Sweden, Finland, Denmark and Luxembourg for example) are allowing Lounes dual nationals to apply for WA permits, France is not.
We sent a detailed paper on this issue to the Ministry of the Interior, stating our concerns that:
We also asked FR-UK dual nationals to contact the Ministry of the Interior themselves to ask how they can evidence their WA rights, and many took part in this exercise.
We sent a detailed paper on this issue to the Ministry of the Interior, stating our concerns that:
- if FR-UK dual nationals do not apply for evidence on their Withdrawal Agreement status by the deadline they may in future be unable to rely on their WA rights (see Section 3 above);
- they are currently being advised by the Ministry that it is not necessary to apply, with no further explanations given; and
- they are currently not permitted to apply.
We also asked FR-UK dual nationals to contact the Ministry of the Interior themselves to ask how they can evidence their WA rights, and many took part in this exercise.
5. What is the outcome?
Firstly a very big thank you to all of you who have written to the Ministry on this and sent us your emails and the replies. I am pleased to say that we appear to have had some movement, although we still haven't had an official response to our paper.
At the beginning of our exercise, this is the standard response that was being sent to those who emailed:
"Bonjour,
En tant que ressortissant française, vous ne pouvez pas déposer une demande de titre de séjour. En effet, la nationalité française vous offre plus de droits que la détention d'un titre de séjour. Cordialement,".
This was useful to us as we were able to send a copy directly to our contacts at the European Commission while continuing to track responses.
However, some 10 days later, the content of the response changed, to this:
"Bonjour, En tant que citoyen français, vous ne pouvez pas solliciter la délivrance d'un titre de séjour. En effet, celui-ci est réservé aux personnes de nationalité étrangère. Toutefois, si un membre de votre famille, tel que défini par l'accord de retrait, souhaite venir vous rejoindre, celui-ci pourra obtenir un titre de séjour sur le fondement des dispositions de l'accord. Pour ce faire, il faudra que celui-ci signale à la préfecture (et au consulat s'il s'agit d'un ressortissant de pays tiers non dispensé de visa court séjour) qu'il est lié à un Français possédant également la nationalité britannique. L'administration instruira alors la demande de titre de séjour conformément à l'accord et donc tous les droits conférés par celui-ci seront reconnus. Cordialement,"
This is the response now being sent systematically to all Lounes duals who contact them in response to our exercise. It seems that they have now taken on board the fact that Lounes duals DO have WA rights, and that they have agreed that individual situations will be caseworked in future. Again, we're discussing with the Commission in view of the previous advice we received, backed up by the Q&A response, that indicates that Lounes duals in constitutive countries can only invoke their WA rights if they apply before the application deadline (although this would ultimately be a matter for the CJEU as there is nothing expressly in the WA stating this).
But in general we're cautiously optimistic that the stalemate has been broken, and there is no doubt in our minds that you have helped with that process by contacting MoI with your specific questions. We'll update you if there is more to add - but thanks again to you all.
At the beginning of our exercise, this is the standard response that was being sent to those who emailed:
"Bonjour,
En tant que ressortissant française, vous ne pouvez pas déposer une demande de titre de séjour. En effet, la nationalité française vous offre plus de droits que la détention d'un titre de séjour. Cordialement,".
This was useful to us as we were able to send a copy directly to our contacts at the European Commission while continuing to track responses.
However, some 10 days later, the content of the response changed, to this:
"Bonjour, En tant que citoyen français, vous ne pouvez pas solliciter la délivrance d'un titre de séjour. En effet, celui-ci est réservé aux personnes de nationalité étrangère. Toutefois, si un membre de votre famille, tel que défini par l'accord de retrait, souhaite venir vous rejoindre, celui-ci pourra obtenir un titre de séjour sur le fondement des dispositions de l'accord. Pour ce faire, il faudra que celui-ci signale à la préfecture (et au consulat s'il s'agit d'un ressortissant de pays tiers non dispensé de visa court séjour) qu'il est lié à un Français possédant également la nationalité britannique. L'administration instruira alors la demande de titre de séjour conformément à l'accord et donc tous les droits conférés par celui-ci seront reconnus. Cordialement,"
This is the response now being sent systematically to all Lounes duals who contact them in response to our exercise. It seems that they have now taken on board the fact that Lounes duals DO have WA rights, and that they have agreed that individual situations will be caseworked in future. Again, we're discussing with the Commission in view of the previous advice we received, backed up by the Q&A response, that indicates that Lounes duals in constitutive countries can only invoke their WA rights if they apply before the application deadline (although this would ultimately be a matter for the CJEU as there is nothing expressly in the WA stating this).
But in general we're cautiously optimistic that the stalemate has been broken, and there is no doubt in our minds that you have helped with that process by contacting MoI with your specific questions. We'll update you if there is more to add - but thanks again to you all.