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Let us suppose an EU citizen, who is not French, resides in France. According to the EU directive 2004/38/EC on the freedom of movement and residence rights of EU citizens and their family members, the spouse of said EU citizen can join them in France, and by doing so, the spouse immediately acquires the right to reside and work in France.

The spouse is required to apply for a residence permit (carte de séjour en tant que membre de famille d'un Européen) within 3 months of arrival in France. According to Article 10.1 of the EU directive 2004/38/EC, said carte de séjour attests to the residence rights and must be issued within six months of application. However, according to Article 25.1 of the same directive, the carte de séjour "may under no circumstances be made a precondition for the exercise of a right".

My reading of the EU directive is that the carte de séjour only serves as evidence of residence and work rights, but these rights exist before the carte is issued, and start immediately after the spouse enters France. In particular, they can be proved by documentation showing the family tie to the EU member, and the regularity of the residence in France of said EU member.

However, this interpretation seems to be in direct contradiction with the French immigration code (CESEDA). Indeed, Article L233-5 of said code states explicitly that in order to engage in professional activity, the family members of EU citizens must be equipped with the titre de séjour.

Is my interpretation of the laws correct? Am I right that they are in direct contradiction with each other? If yes, which law is stronger and should be followed?

Note that this distinction is very important in practice since the processing time of the carte de séjour application is usually very long (often longer than the 6 months required by the EU directive), and it is often essential to know whether the spouse can legally work in the meantime.

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  • What is the difference between carte de séjour and titre de séjour ?
    – Weather Vane
    Sep 16 at 20:29
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    Carte de séjour is a physical card while titre de séjour is the abstract right to reside in France, which is evidenced by the carte de séjour. However, in this case, the terminology titre de séjour is a bit superfluous because the right to reside is provided by the EU directive.
    – D M
    Sep 16 at 20:34
  • So how is there a contradiction? Why isn't it the other way round ... the titre in law allowing a physical carte to be obtained?
    – Weather Vane
    Sep 16 at 20:35
  • The contradiction exists because, according to my reading of the French law, the titre de sejour doesn't exist until the carte has been issued.
    – D M
    Sep 16 at 20:39
  • You wrote "these rights exist before the carte is issued". Isn't that the titre?
    – Weather Vane
    Sep 16 at 20:40

1 Answer 1

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In any case, EU law takes precedence, as the same law provides in its first article:

Le présent code régit, sous réserve du droit de l'Union européenne et des conventions internationales, l'entrée, le séjour et l'éloignement des étrangers en France ainsi que l'exercice du droit d'asile.

This code governs, subject to European Union law and international conventions, the entry, stay and removal of foreigners in France as well as the exercise of the right to asylum.

Sauf application des mesures transitoires prévues par le traité d'adhésion du pays dont ils sont ressortissants, les ressortissants de pays tiers mentionnés aux articles L. 200-4 ou L. 200-5 âgés de plus de dix-huit ans ou, lorsqu'ils souhaitent exercer une activité professionnelle, d'au moins seize ans, doivent être munis d'un titre de séjour. Ce titre, dont la durée de validité correspond à la durée de séjour envisagée du citoyen de l'Union européenne qu'il accompagne ou rejoint dans la limite de cinq années, porte la mention " Carte de séjour de membre de la famille d'un citoyen de l'Union " et donne à son titulaire le droit d'exercer une activité professionnelle.

Unless transitional measures provided by the accession treaty of the country of which they are nationals apply, third-country nationals mentioned in articles L200-4 or L200-5 aged over eighteen or, if they wish to exercise a professional activity, over sixteen, must have a residence permit. This permit, whose validity corresponds to the planned length of stay of the EU citizen whom they accompany or join, but up to five years, bears the mention "Residence card for a member of the family of a citizen of the Union” and gives its holder the right to exercise a professional activity.

A strict reading would indeed render the excercise of a professional activity, and even the stay itself of the family member over three months illegal if they are over 18 years old.

However, as the regulations recognize:

R233-18 La reconnaissance du droit au séjour des étrangers mentionnés aux articles R. 233-11 à R. 233-16 n'est pas subordonnée à la détention du titre de séjour que ces articles prévoient, ni à celle de l'attestation de demande de titre de séjour.

Recognition of the right to stay of foreigners mentioned in articles R. 233-11 to R. 233-16 is not subject to possession of the residence permit that these articles provide, nor to that of the certificate of application for a permit. stay.

where R. 233-11 to R. 233-16 treat the resident permit applications of EU citizens and their family members.

Failure to apply for a residence permit may lead to regularization fees (200 euros) and possibly a fine (1500 euros), but it cannot remove a community right.

In principle, the receipt for the residence permit application should note the status of the EU family member and their right to work.

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    Thanks for the answer! However, I do not agree with the strict reading of the French law because there is a distinction between droit au séjour (right to reside) and droit d'exercer une activité professionnelle (right to work). While R233-18 provides the right to reside irrespectively of the carte de séjour, it does not provide the right to work. According to L233-5 (that you quote), the right to work is conditioned on having the carte de séjour.
    – D M
    Sep 17 at 6:20
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    @DM the phrase "of a residence card" denotes a family member residence card. The requirement to have the card in order to work legally is inconsistent with the directive. But as a practical matter most employers will not employ someone who lacks documents. If they were pursued for employing someone without documents, they could probably defend themselves by showing that the person met the definition of the directive, but are they likely to want to risk having to do that? More to the point, without evidence that the government has recognized the person as the spouse of an EU citizen, ...
    – phoog
    Sep 17 at 12:03
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    ...they are not going to want to risk employing someone who appears to qualify under the directive only to find later that they don't, because perhaps the marriage was a sham, bigamous, or otherwise invalid, or because some document such as a foreign marriage certificate that looked genuine actually wasn't, or because the EU citizen was actually excludable from France as a threat to public safety, or what have you. Employers just aren't going to risk it. The best hope for someone in this situation is to force France to designate the application receipt as allowing employment.
    – phoog
    Sep 17 at 12:08
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    @DM You may want to insist a reply from or on an appointment with the office regarding the situation (if there is any particular situation e.g. a job offer must start soon). Otherwise you could try contact a lawyer or EU SOLVIT.
    – xngtng
    Sep 17 at 12:54
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    @phoog the regularization fee is charged by the immigration office, not applying for a permit when required also constitutes a contravention of fifth class R270-2, but prosecution here is not automatic, and probably only reserved for cases with some other factors.
    – xngtng
    Sep 17 at 13:52

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