183 Day Rule Clarification - PLEASE!

I’m confused and anxious about 183 day rule. Is it about residency or tax ? Some say u have to be on French soil for 6 months of the year, others that u can be away for up to 2 years. I received my 5 year WARP C de S in ‘21. My concern is as follows … my work is international, I’m self employed and travelling for work much of the time, in Europe, Uk, and elsewhere. I probably only made about 140 days in my first year in France … and no authorities have contacted me about this. Furthermore, if ur moving around Schengen internally, which I often do, how would anyone know u’d left France anyway as there are no border checks ?
Surely if ur work takes you abroad a lot, then that wouldn’t be fair to impact ur residency ? …providing u make all ur French tax contributions and declarations in full, which I do. Lack of clarification is vexing me somewhat, as I definitely want to extend my residency when the time comes and / or even apply for citizenship, but my career will continue to keep me on the move. Thanks in advance for any help.

Hi @Tashman and welcome to SF
It is a bit of a conundrum, isn’t it and from what I have seen so far, there does not seem to be a definitive answer.

That thought occurs to me too and I think I wrote about that in a different topic. (it might have been one about travel for extended periods to Spain on holiday).

It seems to be the case that if you have a WARP you can still use the EU channel at ports of entry and you passport should not be stamped. The only likely consequence is if you are challenged whilst in another State and your absence is reported to your host State (unlikely). You might at some stage be called upon to show some justification that you have not ended your residence in your host State (receipts from merchants for example) but again that may be very unlikely.
Perhaps sometime a clearer picture will emerge but for now, there may be prudence in keeping your own records of your activities to present if required.
ISTR some have suggested the various Embassies but that seems to have drawn a blank too - as has the Commission itself.

Residence isn’t as simple as 183 days, although is often taken as the tipping point.

If you have your principal home in France, which you live in in a stable and regular manner (even if that means regular travel for work) and France is the centre of your economic and personal interests then you will be fiscally resident in France.

In terms of having permission to be a fiscal resident of France, your WARP card allows you to leave for up to 6 months in every year. After those 183 days you start to cross the line of no longer being fiscally resident AND lose your permission to be resident here.

However if the reason you are out of the country is that this is part of your work contract, and you have no other home, and your economic and personal interests remain in France then that is entirely different! If your self employment is a french registered auto-entreprise business, all the receipts come into a French bank account and you pay your cotisations and social charges in France as well as your income tax and remain affiliated to the French Health Service (or have full private health cover) then there is not an issue. I am presuming that the absences are not one period of 6 months, but trips here and there.

Nationality might give a bit more of a headache, as the rule of thumb is 10 months absence in the previous 5 years. Which of course can be explained away by your work. But you also have to show professional insertion and integration which is difficult if you are not here! So that might trip you up completely.

Not officially as the channel you use is determined by your passport. So people should join the non-EU channel but with a Carte de séjour your passport should not be stamped entering or exiting France. However with other countries it should be stamped as a WARP card has no validity at all outside France.

The reality is of course that this doesn’t happen!

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I found the earlier Topic and posting I referred to:

correct.

This post from the linked topic suggested otherwise in practice

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As I said….the reality is that border guards don’t follow the rules precisely. But since one can never guarantee this it is far better to travel with a passport and join the correct queue.

thanks Graham, haven’t had my passport stamped at all, even on flights from uk to another EU country, they just wave you through. I even went into the EU passports queue in Germany once, just to have a punt at bypassing the interminably long ‘non EU’ queue, and amazingly, when I showed my C de S, they were absolutely fine with that, the guy smiled and let me through. To be honest though, passport stamping isn’t my big worry, but the time I can spend in France because of an international work schedule is.

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MayB u need 2 c ur tax adviser 4 a chat.

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Jane, thanks for your response. The whole thing is a bit of a grey area as my situation is a bit complex… surely I am fiscally resident in France just by dint of the fact that I have a C de S and it is my principal home ? I have a French registered auto-entreprise where some of my income comes into, but I have also maintained a uk company, which provides me with needed income also, which my accountant over here says is perfectly legit, providing of course that its affairs are declared to France in the annual tax declaration, which of course, they are (there is a UK/France tax treaty which prevents double taxation, and, many people have companies in different countries). The absences are trips here and there. Who is actually checking one’s movement ? And why haven’t I heard anything if I fell short of 183 days in my first year here ??
I guess if anyone did check me out I can provide proof that I was working. Might be a case, in my case, of just keeping my fingers crossed and hoping no issues arise
best wishes

I think perhaps you are over-thinking this!

Your main (and only?) home is in France, you are declaring everything here, you are completely in the French systems and you have sensible justification for your travels. So you are no different from many other people who have jobs involving a lot of travel. But you obviously feel insecure about it? Do you spend a significant amount of time in one other place that could confuse the issue?

(Just because you have a CdS doesn’t mean you are fiscally resident, it is everything else that determine your fiscal residence)

You’re correct, perhaps I am overthinking this. But upping sticks to another country is quite a daunting prospect, not to be taken lightly. I’m fuelled by an utter dread fear of being ‘stuck’ in Britain. My life plan always was to end up somewhere in Europe, in particular France, which I love. Brexit is quite simply the most unfathomably stupid own goal shot in the foot that a country has ever inflicted upon itself. I can’t think of another example of an advanced western country that has so comprehensively self regressed. Anyway, again, thanks for your input. Best wishes.

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From which country are you considering “upping sticks”… and to which country ???

Have you actually upped sticks?

There are a group of people who acquired a WARP CdS, but have not completed all the steps to actually being French fiscal residents “living here in a regular and stable manner”. So they keep homes in the UK that they spend a lot of time in, have not registered their cars in France, have not paid and joined the French Health Service, have not completed the steps to tell the UK they have gone (HMRC and DWP), or the French authorities that they have arrived. And skirt round the tax element as only declare money generated in France, and haven’t declared all foreign accounts, paid social contributions etc etc.

And work remotely in France for a business based elsewhere - which is completely illegal! Any work done when one’s backside is on French soil must be declared and taxed in France (something that many UK based accountants don’t quite understand).

Those people need to worry, as eventually the authorities will pick up on the irregularities of their situation, and may well determine they are not fiscal residents as they don’t meet all the criteria. And therefore determine that they have no right to a WARP card so if they wish to stay they will have to apply for a visa. And if they have been working illegally may face penalties and struggle to get a visa.

But if that is not you then relax.

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Living in France and maintaining a UK reg co of which you are the sole director can be a minefield, I know people who have come badly unstuck over this. Hopefully your accountant is aware of all the pitfalls and has given you good advice.

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Something will happen to these people one day and then they will be justifably in deep doo-doo!

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Their sob stories will keep The Connexion busy for years.

Especially as it’s incredibly easy to set up a French company that doesn’t do business in France but does allow you to pay taxes and charges (both for the employee and employer)… I did this two years ago with my UK employer.

Is this the ‘foreign control’ issue or is it something else, Sandcastle?

I have to maintain a (currently dormant) UK Ltd for work and no work will ever be performed in France but am happy to maintain taxable status in both countries. Of course this may be reviewed in the future.

Yes I was thinking of the foreign control issue.

An interesting question! I can’t actually see anything in the treaty on frontier / cross border working (which this is a case of undoubtedly). However there has to be something because full time x-border workers will always be absent for > 183 days if commuting weekly.

When I did the CdS application I think the category I chose was ‘worker’ but can’t remember if it was ‘foreign work’. Do the cards state the category?

Here’s the legal bit (just for info -)

Treaty for Exiting the EU –

Article 15 Right of permanent residence

2.Continuity of residence for the purposes of acquisition of the right of permanent residence shall be determined in accordance with Article 16(3) and Article 21 of Directive 2004/38/EC.

3.Once acquired, the right of permanent residence shall be lost only through absence from the host State for a period exceeding 5 consecutive years.

and -

Article 16 Directive 2004/38/EC.

General rule for Union citizens and their family members

  1. La continuité du séjour n’est pas affectée par des absences temporaires ne dépassant pas au total six mois par an, ni par des absences plus longues pour l’accomplissement d’obligations miliaires ou par une absence ininterrompue de douze mois consécutifs au maximum pour des raisons importantes, telles qu’une grossesse et un accouchement, une maladie grave, des études ou une formation professionnelle, ou le détachement pour raisons professionnelles dans un autre État membre ou un pays tiers.

  2. Continuity of residence shall not be affected by temporary absences not exceeding a total of six months a year, or by absences of a longer duration for compulsory military service, or by one absence of a maximum of twelve consecutive months for important reasons such as pregnancy and childbirth, serious illness, study or vocational training, or a posting in another Member State or a third country.

I’ll do an edit because of the three post rule -

In article 17, which deals with getting the permanent right to stay before 5 years, for reasons of retirement or incapacity, there is a note that -

For the purposes of entitlement to the rights referred to in points (a) and (b), periods of
employment spent in the Member State in which the person concerned is working shall be regarded as having been spent in the host Member State.

The note obviously applies to Article 17, but it would be weird in the least to argue the text wouldn’t be applied to other articles…

I think France is applying Article 17 for brexit - I’m sure I’ve seen a flow chart or something / questions about these categories

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