Can you live in the UK but still hold a Withdrawal Agreement (WA) residency card for France, and if you do, do you risk penalties?
The answer is not as simple as it might seem. Here we look at some scenarios.
Note that in a basic sense, where you live is defined as where you have your main home (foyer) and live ‘habitually’. Most people know where this is and it is probably also where your spouse and any dependent children live too.
Your foyer is also a key test of tax residency. If in doubt, there are others, such as whether you spend more time in France than anywhere else in the year.
From day one of living in France, you should declare your worldwide income here.
Applying for a WA card was dependent on living in France by the end of the Brexit transition period, ie. December 31, 2021.
The application required entering the date when you moved (date d’installation).
Second-home owners should not have applied as their habitual home was the UK but there are claims that some did nonetheless.
France was generous in the limited paperwork to obtain a card, especially for those who attested to having lived here more than five years to obtain a ‘permanent stay’ card.
The latter only had to show ID and any dated document indicating living in France more than five years ago, such as a utility bill or rent receipt. Strictly speaking, the WA treaty said Britons should – barring special circumstances – have totted up five years in which they spent at least half the year in their host country to obtain such a card.
There is speculation that people who obtained cards wrongly might be caught out due to tax office checks as to why they are not declaring income in France. Having said this, we have seen no proof that there is the will or manpower to do this.
A tax office spokeswoman told us that it does carry out ‘datamining’ to check for tax fraud, including relating to domicile. However, she did not confirm if this included cross-checking tax declarations and residency cards. She said holding residency cards falsely is not their concern but rather that of the Interior Ministry.
The Interior Ministry did not respond to queries about this. However, the Code Pénal states at article 441.7 that making a false attestation to obtain a carte de séjour is punishable by three years in prison and a €45,000 fine.
What if you obtained a card and have since moved back to the UK?
If you were issued with a temporary (five-year) card, WA rules say you risk losing your right to later convert this to a permanent card if you are away from France for more than six months a year (365-day period) from the start of residency, unless there are exceptional reasons for longer absences.
However, the WA says if you have a permanent card (renewable after 10 years), the right to reside in France is only lost after five consecutive years of absence. A ministry spokeswoman said: “The person should keep their card and ensure they come back at least once in five years.
“They should, however, stay in France for sufficiently long for it to be considered that their absence from French territory has ended.”
We have queried what counts as ‘sufficiently long’. A European Commission spokesman previously said that, in EU law, ‘absence’ is to be taken literally, without conditions.
Note: If you move home within France, you must apply online to update your address on your WA card within three months, though some people report problems with the process. Read our tips at: tinyurl.com/change-address.