November 2019
From Wikipedia
“The Grapes of Wrath is an American realist novel written by John Steinbeck and published in 1939. … Set during the Great Depression, the novel focuses on the Joads, a poor family of tenant farmers driven from their Oklahoma home by drought, economic hardship, agricultural industry changes, and bank foreclosures forcing tenant farmers out of work. Due to their nearly hopeless situation, and in part because they are trapped in the Dust Bowl, the Joads set out for California along with thousands of other ‘Okies’ seeking jobs, land, dignity, and a future.”
Many may wonder why I chose this title when the US economy is good and there are no longer large numbers of people from middle America hitting the road for a better future in California. Set amid the Great Depression, this novel talks about not being able to earn the bare minimum to live and the despair of having to leave everything behind while holding onto an unrealistic dream.
But, to extrapolate, there are people in the USA on the right as well as the left hoping for things that are not realistic. The presidential campaign has already started and it feels like it is now in full swing when the actual vote is about a year away. Given the extreme polarization of American society, whether President Trump is reelected or a liberal Democrat wins, are we sure it will not create a crisis of the magnitude of the Great Depression, with its related migration, acts of despair and defiance of law and order?
One thing is certain, I see wrath coming out of Washington and many other parts of the country every day. I understand and agree that some expressions of great anger can be legitimate, considering what the other side of the political spectrum is doing. My point is that I see a cumulative effect of these expressions of anger, and I wonder how far it will go and what will happen if it reaches a breaking point.
France is not in a much better situation. After witnessing the gilets jaunes demonstrating Saturday after Saturday, in recent weeks we have seen members of the police forces taking to the streets of Paris to protest, while uniformed colleagues are also there to control and manage the demonstration. Does anyone else see this as a complete absurdity? Who would have thought that police would potentially commit violence against other police? It did not happen that day, but a later demonstration of firefighters ended up with a significant amount of violence. Many do not realize that Paris firefighters are military personnel, constituting a regiment. So let this sink in: soldiers fought police in the streets of Paris.
Are the grapes of wrath that far from us, or could this kind of crisis happen again?
DOES A VEGAS WEDDING COUNT IN FRANCE?
Las Vegas has long been known as the capital of speed weddings and extravagant ceremonies. In the USA, everybody knows this and understands that such weddings are legal. Couples may have various reasons to get married there. Eloping is not one of them in our modern society, at least I hope not.
I would like to review a decision of the French Supreme Court that may astonish many Americans. Two French young adults, who were dating at the time, traveled across the USA. While in Las Vegas they thought the wedding ceremonies were fake, since they were so different from what is done in France. So, for fun, they got married. After their return to France, they did not register the marriage certificate with the French administration. Even when they had a child, it was registered as being born to unwed parents.
Several years later, the woman got married in France to another man. After 17 years, the husband came across the Vegas marriage certificate and asked that his marriage be annulled, as French law prohibits bigamy. The Versailles Court of Appeal and the Supreme Court both refused to annul the French marriage. When it comes to applying the law, the logic used was shady. At the same time, I can see why they ruled this way, since seeking an annulment after 17 years shows a significant level of bad faith, especially as the wife claimed her husband had always known about the Vegas ceremony.
On one hand, the court recognized the formal legal validity of the first wedding, stating that France must take at face value all legal American weddings and is bound by the US definition of a legal wedding. The certificate existed and the husband argued that it proved bigamy without a doubt, which is true on the face of it. But the court also reviewed the situation in another light. Is a couple married when both spouses are sure they are not, and behave accordingly? In short, the court contested the existence of the first marriage because neither of these two people had ever intended to be married.
My take is that the court did not want the husband to benefit from his proven bad faith and get away with not paying alimony or the other financial consequences of going through a French divorce.
Below is the pertinent section of the Court of Appeal decision on l’intention matrimoniale:
En revanche, la cour estime que les « conditions de fond » qui, aux termes de l’article 146 du code civil, exigent « le consentement » des époux, n’ont pas été respectées. Le « consentement » implique que les époux aient eu une véritable « intention matrimoniale ». Or, la cour considère que Catherine et Thomas « ne se sont prêtés à la cérémonie qu’en vue, manifestement, d’atteindre un résultat étranger à l’union matrimoniale ».
ARE THERE GOOD AND BAD IMMIGRANTS?
I want to share a recent exchange I had with a reader, as it shows the extreme complexity that exists when dealing with immigration. It is very common for foreigners sitting at the prefecture to complain about harsh treatment after having been called back three times or more for insufficient documentation. They see other people with thin files walking out of the prefecture after being approved, and conclude that the system is rigged, that certain categories of foreigners have more rights than others and that they are being discriminated against. I want to be very precise, here; on that level at the prefecture, there is almost never a personal discrimination, or even one based on citizenship or origin in the world. Therefore it is exclusively a perception that some foreigners have, that other foreigners with the same legal ground, have more rights than others. The next comparison is even worse for me as it opposes large categories or people indiscriminately. The most common one I have seen is comparing homeless veterans with asylum seekers, as well as stating the dreamers have more rights than people currently crossing the border with Mexico.
It is painful to me to see such claims, as they have a wide and long lasting impact without any good ever coming of them. It is a very human thing to do, comparing and wondering why discrepancies exist, challenging the notion that certain people have more rights, as if despair and hardship can be measured with a scale or a ruler.
This exchange below and the following testimonies are poignant because they show how emotional this issue becomes when one is personally involved.
1st COMMENT
I’ve been reading your newsletter for several years. I greatly admire your professional write-ups. Being an American lawyer myself, I admire your understanding of the administrative hurdles you describe, especially since these are things one does not learn in law school.
What puzzles me is: tens of thousands of immigrants, sans papiers, illegals and “in between”, are in France, and many of them receive generous benefits, such as medical care. Some may be here in good faith, but some may be pique-assiettes or freeloaders sucking what they can from the system. Indeed some of those people don’t respect France, but they somehow get along and may even obtain legal status by hook or crook. Children born in Syria to French jihadists are automatically considered French, no questions asked, while my spouse born in Châtillon-sur-Loire to naturalized, hard-working Spanish parents, schooled and raised in France, was not considered French but had to apply for citizenship and had a rocky road to get it, and sometimes the problem resurfaces.
Getting to the point, it is difficult to understand why the French administration lacks the discernment to be flexible for a well-intentioned lady PhD from Pakistan to allow her to stay with some legal status when they let much less qualified and potentially dangerous folks filter into the country. Why raise hurdles for a well-meaning, highly-educated Pakistani lady, knowing that there is such a thing as administrative discretion? I know one cannot count on one’s papers landing in a sensible bureaucrat’s inbox, so one has to give clean legal advice, as you do, and not count on “understanding” bureaucrats, but it still is puzzling given the situation.
Best wishes and thank you for your newsletter from someone who may be a future paying client and I have passed on your newsletter to some who may have become such.
MY ANSWER
Thank you very much for your message. As you are a lawyer, the answer to your frustration is the definition of the law and how it is applied.
As I explained in the 1st Q/A there is always a significant difference between the rights a person has and the rights the person can exercise, based on his/her ability to prove those rights. In other words, the justice system is by definition unjust, and this injustice must be accepted by the people who go to court seeking justice and hoping the court will make it right. Some people prove their rights with few documents, while others must bring excessive documentation to prove their rights.
Another issue directly linked with your profession is that the law applies equally and uniformly to people who fit the same profile. For example, people who have obtained asylum status have different rights from native French people, who in turn have different rights from undocumented aliens. So your wife, who was born in France, was asked for a multitude of documents to prove the status she was asking for. It makes sense because she has access to these documents. Asylum seekers who left with nothing can only rely on a handful of documents and their request will be reviewed on their testimony.
That said, the chance of obtaining asylum seeker status is rare, while for a person born in France to naturalized parents, France has 100% of the paper trail, regardless of how hard it may be to find the documents.
When it is a file for a client, we can keep our distance and treat this as a job – there is no emotion involved about which document is needed or why this one is hard to get. But when it is our file or, worse, that of our spouse and children, we take it personally because we have a protective reflex concerning them. That is the flip side of our job.
The key thing is not to compare the pain, suffering and distress of one part of the population with another. Mostly in the USA, but also in France, I have seen people comparing sans-papiers with French-born homeless people, and refugees and with homeless veterans, as if the government had to choose one over the other.
I believe there is a need for budgetary decisions to be made so that one population is not held up in opposition to another, one group slandered because the other is presented as being more deserving. But neither of us is sitting in the US Congress or French Parliament to pass laws. We can only witness decisions we agree or disagree with.
My church helps the homeless a great deal and allocates a significant budget for this. The refugee team, which I am involved with, is smaller with fewer means. I tend to choose the underdog, a pattern in my life that was strengthened when I served in the French Army. I am proud of what the church is doing and the diversity of the people we help.
I am truly sorry for what your spouse went through. In 1994, the first time I went to city hall asking how my American wife could become French by virtue of being married to a French man, the civil servant told me with a straight face that even if I had been able to fool the French army into thinking I was French, he would make sure I would not fool his office, since I could not prove to his satisfaction that I was French. He pushed just about all my buttons and smeared my wife as well. It took me about 10 years to get over this. So I am no better when it comes to this sort of thing. I took it very personally!
THEIR RESPONSE
I have enjoyed reading the past issues you were kind enough to send. My husband is French, while I was born and raised in the USA. A few years ago we moved to France to be closer to my husband’s family. We are here to stay. While I love living here, I am 53 and as you brilliantly wrote in one of your issues, I am starting all over.
Thank you for your thoughtful response. To tell the truth, I suspected what your answer would be but I pushed the “send” button too quickly. After writing my message I hesitated about sending it and consuming your valuable time.
It was quite unlawyerly and too emotional of me (particularly for a lawyer) to wish that officials might be more discerning and flexible so as to allow people of obviously good qualifications and who apply in good faith to have some leeway. It was a wish that they could use their administrative discretion and sort out the wheat from the chaff, if you will, so that honest folk applying could get a fair shake. I know that those who apply cannot expect to receive that kind of treatment and should definitely not count on it. They have to thread the needle and submit the right documents and comply, to the letter, with whatever rules or laws prevail and hope for the best.
By the way, next year I will need to apply for my fourth ten-year carte de sejour. I am apprehensive about doing it. I’ve stood in the rain and snow many times, starting 5 or 6 in the morning, only to be told as I reached the promised land at the front of the line outside the prefecture at 9am in Montpellier that they were not accepting any more applicants that day, no more numbers to hand out. I could come back and try another day. Maybe start at 4am.
Now the appointment system online is clogged by illegal operators who immediately make bogus appointments and sell them. If you are caught buying an appointment it is illegal and dangerous. But there is practically no other way to get one. Kafka would have something to say about this situation.
I proposed to an official I know that they set up a table with a person who would validate online appointments after seeing an ID card. This would eliminate the middlemen who have an illegal business selling appointments. The official’s answer? That would be too costly.
NEW STATEMENTS FROM PEOPLE WHO WERE REGULARIZED OR STRUGGLED TO KEEP THEIR IMMIGRATION STATUS
I have continued to receive comments, mostly from people who read the issue last month and wanted their voice to be heard. Because I am mostly helping Anglophones, such people often come from Asia – more specifically, from South Asia and China.
COMMENT #1
Being sans papiers here in France is way too hard. You have to fight the feeling that any time you will be caught by the police. And the loneliness of being away from your family for a long time is a nightmare in your everyday life. You need to be ready to embrace the life that will happen ahead of you.
COMMENT #2
There is this idea that sans-papiers should have a worse life because they are illegal. I believe that this is wrong and offensive. It is wrong because I see French people doing illegal things all the time, illegal parking, speeding, cheating on taxes and social charges, and they boast about it. When I was sans papier, I was supposed to be ashamed and worthless. I was humiliated, taken advantage of by employers, well-off professionals who had no problem being illegal by making me work for them. My illegality was a cross I had to carry. I have always resented being seen as a criminal, when everything in my life was decent. It is true that the procedures at the prefecture can be humiliating, having to wait in line at 6AM to be among those who will have the appointment to renew the carte de séjour. Even when it was happening once a year, can it be compared to living five years with this awful knot twisting my stomach night and day? I understand that there can be some anxiety about going to the appointment at the prefecture. When I went there the first time to submit the regularization request, I could barely move, I was stricken by fear. The odds were real that I could end up handcuffed and sent back to my country. Last but not least, imagine what it takes to get the employer’s French tax documents that prove that they have the means to pay my salary. Nothing was easy, comparisons can be so painful. When I was sitting waiting at the Cité prefecture waiting for my turn to be called, knowing my request for regularization had been approved, I felt that I had as much right to be there with my legal stay, my right to work, as anyone sitting in that same room. Pain, despair, anguish, they cannot be compared from one person to the next. Now that I am preparing my carte de résident request, I am integrated, feeling safe in France. From the day I realized I had been fooled by my employers who brought me to Paris from Hong Kong, and made me a sans-papier to today, I have stayed the same, a decent woman and a practicing Christian. This is what defines me then and now.
In conclusion, I would like to address two issues:
1. Regardless of how secure the foreigner is, how strong the file, how solid the immigration status, many foreigners get panic attacks about going to the prefecture to submit their request. The fear that the civil servant they will encounter has this almighty power over their life and the slightest thing can make them lose their rights can make them sleepless or physically sick. Quite often the fear is irrational and disconnected from the reality of the procedure at the prefecture. For people who suffer panic attacks, however, it is barely controllable and reason has hardly any effect on their condition. Many of the comments I received dwell on this theme of fearing the prefecture’s decision.
2. Nearly all sans-papiers live in constant fear of being caught by the police and deported. This means that this fear also exists with people who think that there is a good chance that they could lose their legal right to live in France. These people who have reasons to fear a negative answer very often have family members, close relatives, friends, who are sans-papiers, who have been caught and deported. Some of them have gone through the regularization procedure and have difficulties maintaining this legal status. Whether sans-papier or not, explaining that the file is there, it is strong, that there is no point of fearing the police since at this stage of the game, the risk of deportation is null, it does not affect the emotional condition, the fear is strong and they suffer from it.
What I describe here about these people living in France, is also true about the similar procedures in the other Western countries that regulate their immigration with strict procedures. Based on my knowledge, the American immigration procedures objectively create even more anxiety than the French ones.
COUNTRY CODES FOR FRENCH SOCIAL SECURITY NUMBERS
I have explained how the French social security number is constructed almost entirely of codes representing the date and location of birth. I recently found a webpage listing all the codes identifying where a foreigner was born. The page displays them including the code 99, which means being born outside of France. I am not how useful this information is, but I assume some people will want to check their number against this list. For a reminder of how the number is constructed, see the explanations in the June 2005 and March 2019 issues.
www.insee.fr/fr/information/2028273
AAWE “RETIRE & THRIVE” EVENT
The Association of American Wives of Europeans recently held an event called “Retire & Thrive” at the American Church in Paris, where many professionals had booths and offered their services to those who attended. On such occasions I often meet my readers, and this was no exception. Some say they have followed my work for years without contacting me.
After helping put together the tables, I spent time talking to people who had all kinds of questions, not just those about retiring in the French public system. Immigration, getting a pension on both sides of the Atlantic and staying on French public health coverage were some of the topics discussed. I would like to thank AAWE for putting together this event, which was well attended from beginning to end.
I AM THE SPEAKER FOR ANGLOPRENEURS ON DECEMBER 17th
At the AAWE event, Patricia Smith Zraidi who runs the Anglopreneurs’ Monthly Evening Event asked me to be the speaker for the Tuesday, December 17, 2019 event. It starts at 7 PM until 10 PM and is held at: HD Diner Opéra (downstairs), 25 Bvd des Italiens, 75002 Paris. For more information check the page https://www.facebook.com/groups/anglopreneurs/
OFFICE CLOSED FOR CHRISTMAS
The office will close for three weeks over the Christmas holidays, starting on Friday December 20th in the evening and reopening on the morning of Monday January 6th. As always, I will be reachable by email for emergencies and important matters. The service I offer of receiving mail for clients will continue while the office is closed. Of course, Sarah or I will honor prefecture meetings already scheduled, as well as a couple of other engagements.
Best regards,
ANSWER
You are an undocumented alien, also called a sans-papiers. You have a choice between:
1 – Going back to the USA and asking for a long stay visa corresponding to your plans – student or something else.
2 – Staying undocumented and facing the risk involved in living in France illegally, which means that getting a job, registering with a university and so on is either impossible or very complicated.
If you choose the latter, regularization is possible once you have lived at least three years in France. In your case you would need to stay undocumented for a couple of years.
I am sure your use of the word “visa” stemmed from a misunderstanding, but I want to clarify that the prefecture never issues visas. It grants the carte de séjour, among other immigration IDs, either because one has secured legal immigration status or strictly complies with the regularization guidelines and is asking for such status.
It would take a miracle for the prefecture to grant you a new immigration status and allow you to get back in the system months after your last immigration status has expired for so long. That is not to say it is not worth trying, but you need to be realistic about your chance of success.
My October 2019 issue detailed at great length the employee regularization procedure. To sum up, you need to work with the new family until you reach two years’ worth of pay slips for a minimum of 20 hours per week. This can easily be achieved if you are paid through the CESU program so that you and your employer pay the related social charges.
Based on what you say here, you arrived in August 2018. This means the earliest you will be eligible for regularization is August 2021. Let that sink deeply into your brain and heart. Are you ready to live underground for close to two years?
I want to repeat what is absolutely obvious: The law says, “You must go home!”
QUESTION
DOES PARENTAL FINANCIAL HELP CONSTITUTE TAXABLE INCOME?
I’m having issues with being taxed on money my parents gave me as a gift for rent and living expenses without having my own income in France. Is it possible to ask you some questions about this and get your insight?
ANSWER
Rather than limit myself to explaining this I would like to give a longer explanation. This way you can put what you read in perspective and only pick ones in which you are truly interested.
The French complete legal name for “co-ownership” is:
le syndicat des copropriétaires
I understand your situation, which I must explain exactly so you can decide what solution to choose.
What is a gift, what is income and what is mandatory support?
In France, these three situations are clearly defined and therefore it is important to understand them so one does not get confused between them.
a) Gift
Parents may give the same amount annually to all their children so to decrease the estate by passing along assets while they are alive. I believe that in the USA, each parent can give $15,000 so it makes a total of $30,000 a year when gifting together free of tax. Done properly, it is crystal clear what is happening, and lawyers and CPAs advise their clients to proceed so that no confusion is possible.
b) Income
This should also be crystal clear. If payment is made in exchange for work done and it is the result of a contract, it is income. In both the USA and France, the employer has a fair number of obligations to fulfill, issuing documents (pay slips) and paying taxes.
c) Mandatory support
Here, things get more complicated, as the French and US systems are totally different and finding a way for both systems to accomplish the same thing is complicated.
France’s Civil Code has always defined a strong obligation running up and down the blood line between children, parents and grandparents (but not siblings). This obligation d’aliments means that up to a certain age, parents have an undisputed obligation to take care of their children (and not just feed them, despite the name). Later the children have this obligation toward their parents, when the latter no longer have the means to take care of themselves.
During the course of their lifetimes, the obligation can go back and forth: A homeless child or parent should be provided for by the other generations if they have the means to do so.
Once this obligation is documented by a court or is regular and long lasting, a child who receives such money must consider it taxable income, because the parent can claim it as an income reduction.
I believe situation c) Mandatory support, is what is happening in your case. Somehow the amount of money you received from your parents came to the attention of the tax office and is therefore being taxed.
The US-French tax treaty allows your parents to make the payment tax deductible. If they cannot do it for some reason, you need to go to the French tax office and ask them to change your tax return accordingly, bringing documents proving it is not deductible in the USA.
DISCLAIMER
Please forward this message to all those who would be interested in its contents. The information contained in this newsletter is intended only as general information. I strongly urge readers to seek professional guidance concerning the legal and tax matters mentioned. This newsletter is intended as a general guide and is not to be taken as professional advice.