dominoman

Hoping someone can help me out.

My wife (a UK National) is currently doing a 3 month contract as maternity cover for somone in a bank in France. She set up a UK-based company as a sole trader and it is technically the company that is engaged by the bank, not her. Up until now she has not had to worry about the visa under the short-stay (<90 days) rules.

However, they now want to extend her and create a new 9-month contract. What visa would she require for that, and is it hard to get?

We found this online " In case of liberal profession : Authorization corresponding to the exercise of your profession. If subject to an "Ordre" : Authorization from the "Ordre professionnel". It's all a bit confusing.

Any advice or way to make the visa process easier would be much appreciated!

EuroTrash

I trust your wife currently has permission to work in France and has registered correctly with the French authorities, so it's not clear why the arrangement has to change - can she not simply apply to extend it?

Since a Brit going to France as a "visitor" under the 90/180 day visa-free arrangement does not automatically have the right to work, presumably either your wife's activity is covered by the Schengen visa waiver, which would require a change of approach to continue beyond 90 days but might be made easier since she already has a foot in the door, or she's been given formal approval by France to do this particular type of work which presumably could be extended.
https://www.gov.uk/guidance/check-if...mit-for-europe
The Schengen visa is a short-stay visa that allows visitors to stay in the Schengen area for up to 90 days in a 180-day period.
The Schengen area includes:

• most EU countries (not Bulgaria, Croatia, Cyprus, Romania or Ireland)
• Switzerland
• Norway
• Iceland
• Liechtenstein

British citizens are covered by a Schengen visa waiver. This means you do not need to apply for a Schengen visa to visit these countries for up to 90 days in a 180-day period for:

• tourist travel
• some business activities, such as attending meetings

You may need a visa and, or permit if:

• you’re staying for longer than 90 days
• studying
• travelling for business
• working (carrying out work-related activities not covered by the visa waiver)

It's also not obvious how she has established herself to work in France as a UK sole trader. Even pre-Brexit when Brits had the automatic right to work in the EU, you couldn't simply set up as self employed in the UK and then go work in France without making yourself known to the authorities. To start working in France as a sole trader you normally needed to register some kind of sole trader business structure, such as a micro entrepreneur, get a siret number etc, and start paying you social security dues in France, declaring your income for taxation. There were exceptions to this rule, such as posted workers who, subject to certain conditions, continued to be covered by the social security system of the country from which they were posted and therefore didn't have to pay social security contributions in France (but since Brexit the UK is no longer part of the posted worker arrangements) but even then, all posted workers had to be notified to DIRECCTE in advance of the start date of their posting, and the posting had to be approved. Foreigners can't just start working in France off their own bat without notifying the French authorities of their presence; EVERYDBODY who is doing paid work on France soil, employed or self employed, temporary or permanent, has to be registered either with DIRECCTE if they're exempt from paying social security in France, or with URSSAF if they're not exempt. If she's registered with DIRECCTE as a temporary worker exempted from cotisations this would need reviewing but if she's registered with URSSAF, I imagine that would simply continue subject to them checking that her permission to work has been extended.

Plus of course there's the old chestnut of the issue of "false self-employment" i.e. where an employee poses as self-employed to avoid payroll taxes and generally get around the rules; tthink UK IR35 legislation; France has similar but more rigorous https://www.federation-auto-entrepre...lariat-deguise . At first sight a bank employee's work would seem to involve following instructions from the bank with a link of subordination strong enough to qualify it as an employer/employee relationship, but presumably your wife's role can be justified as an independent operation in which she takes the major operational and strategic decisions etc.

From the few details you have given it's not clear how your wife has addressed these various issues (permission to carry out the activity, registration with the French authorities, social security cover) and ring fenced herself up to now. Without knowing that, and without knowing why the current arrangements need to change, it's not really possible to advise.

EuroTrash

Better correct what I put the above - after I'd written it a vague recollection floated to the top of my memory about DIRECCTEs being dismantled and reorganised, and I just checked and apparently they are now called DREETs (Direction régionale de l’économie, de l’emploi, du travail et des solidarités).
https://www.legavox.fr/blog/gillioen...pour-30988.htm

dominoman

EuroTrash Many thanks for the advice.

She's currently working in France until end of this year, but strictly isn't covered by the Schengen visa waiver (it's more than meetings). However her employer (the employing agent's French subsidiary) told her that was all OK. Perhaps wrong... But in this instance best now would be to keep schtum I suspect?

My original post above was not accurate. She's employed by the agent's French company, and that company then does the business services for the French bank. But either way it sounds like she will now need a visa to allow her to work on for the next 9 months.

The work should be exempt from IR35, because she can control when she works, how and when she gets paid etc. And she retains the right to send someone else to do the work instead of her (with their agreement) - which an employee couldn't do.

Thanks for the DREETS link. That led me to this page https://travail-emploi.gouv.fr/droit...g-of-employees. The criteria on that page are not going to be easy to meet. How much of this should she personally be worried about, or is it ultimately the responsibility of her employer (the agent's French company) to comply?

EuroTrash

Yikes it all sounds complicated.
About being posted, my first thoughts are that if your wife wasn't living or working in the UK immediately prior to the start of the posting, I don't think she could in any case be posted from the UK because I don't think the UK would issue the necessary documentation. She would have to be posted from the country she lives in permanently. If that's possible.

I'm totally confused now whether she's working as a "salariée" or as an "indépendante" (from what you said, she does meet the criteria for being an independent worker), and if "salariée", who technically is her employer. You say "She's employed by the agent's French company" (who or what is "the agent" - do you mean an employment agency?) but if she's being employed by a French company I don't understand the confusion because surely a French company is perfectly well aware of the process for employing a person to work in France. So is she not actually 'employed" at all? Because whether she is technically working as an employee or a freelancer makes a huge difference in all kinds of ways - tax, social security, working conditions etc. Does she get paid on invoice, or does she get a payslip showing deductions and if so, who issues the payslip and is it a French payslip? Paying social dues on all earned income is a big issue for France. If cotisations are not being properly paid, in the case of an employee (payslip) it's the employer who carries the can, in the case of a freelancer (paid on invoice) it is that person. In your first post you mentioned she set up a UK company. If by that you mean a Ltd Co, ie a separate trading entity (what French law calls a "personne morale" as opposed to a "personne physique"), and the Ltd Co invoices the bank or the "agent" and then issues a payment to your wife, then the UK Ltd Co is the "employer" and as such is responsible for complying with French labour law pertaining to employing a person to work in France.
Those are my first thoughts about the social security issue.
I don't know a lot about work permits and I have no idea what happens if a person is caught working in France without one. If the person is an employee, then based on how French rules tend to work I would suspect the employer would face the fines, but the person might find themselves banned from France. If the person is a freelancer (personne physique) I imagine they would be pursued.
I'm no expert on this, I have had experience of posting workers from the UK to France and the nightmares that can arise when France suspects the rules are being infringed, but that was pre-Brexit and the right to work wasn't an issue.

The only practical suggestion I can make is that if she entered a France/Schengen as UK citizen without a visa, she needs to make very sure she exits Schengen before she reaches the 90 day deadline, regardless of what happens next. And if the nice border officer invites a friendly chat about her trip, which parts of France she visited etc, it might be good politics not to say that actually, she has been working.

Sorry I can't help more.

EU.flag

Sure, if she doesnt mind being banned from Schengen for 3y when she gets caught.
Employer would get fined, but she would get 3y ban.

EuroTrash

Ah right, I thought there might be a ban involved.

I still don't get how the contractual relationship is set up. I can't imagine a French company employing a salarié under an employment contract but not correctly registered with URSSAF with proper payslips issued and all social dues paid, because it's inconceivable to me that any French company would either be ignorant of French labour law to that extent, or be prepared to risk the sanctions for breaching the labour code so blatantly. In fact a lot of French companies don't even dare use a foreign freelance service provider without a French siret number, because there are serious sanctions for using unregistered service providers as well - please ignore what I said earlier about it being the freelance who would be pursued, because thinking about it more clearly, using unregistered labour is a biggie and it's first and foremost the client's responsibility to carry out due diligence on any service provider they use.

So I'm trying to look at this from the client/employer side and think how would they covered their backs, if their backs do in fact need covering. I'm thinking perhaps the services are being purchased from the UK Ltd Co with a contract that includes a clause specifically stating that the UK Ltd Co is responsible for ensuring that all the relevant legislation is complied with. That kind of clause appears very often in contracts I have with my clients, I do have a siret number that they can check but obviously they are still twitchy because having a siret number doesn't in itself prove that I declare everything as I should, so maybe businesses feel that by putting that clause in, that's their due diligence done and they're absolved of all further responsibility. Whether they are or not, legally, I don't know. I'm also thinking that if the contract is actually with the UK "agent" rather than the French company, this would be a smokescreen because that would mean the identity of the service provider wouldn't need to appear on the French company's accounts or records so wouldn't automatically be checked out in the event of an inspection.

Hopefully though that is just my nasty suspicious mind at work, and in reality the company is on top of it all and has found a clever way to pick their way round the legislation and all obligations are being met. If that's the case it would be really good if you can find out how it all works, I would be interested to know and I'm sure it would solve a headache for a number of Brits and others too, who wish to work in France but can't figure out how to do it legally.

EU.flag

I suggest you start research with https://france-visas.gouv.fr/en/web/...sional-purpose .

dominoman

EuroTrash and EU.flag Thanks very much for your advice. This has become very stressful for her (and for me) as up until now we were under the illusion (or delusion perhaps!) that there would be a simple way to register as being working in France and there would be no complications involved.

She's actually living in the Middle East, but with a British passport. The UK company was set up to allow her to contract herself out as a freelancer to do interim work. It just happened that the first client was in France, and the agent (from UK) had a French company that she did it all through.

As you say EuroTrash her UK Ltd Co is a separate trading entity and the Ltd Co invoices the "agent" and then issues a payment to my wife. But as it is a company we set up for this purpose and is just her and me we don't have any prior knowledge of what is involved in complying with French labour law pertaining to employing a person to work in France. I'm a little concerned that the agent's assurances that no permit or visa are needed are just wishful thinking...

You may be right that it is the agent's UK company doing the employing and that there is that clause to say that the UK Ltd Co is responsible for ensuring that all the relevant legislation is complied with. I will find out. But in any case I am concerned that my wife has now been in France just over 90 days already and is due to fly out this weekend and then return to France a week later.

EU.flag

Unless she holds French national visa, she will be told off and fined leaving France, depending on overstay.
She wont be able to return week later, she would not be allowed in Schengen for next 90 days. Brexit reality will catch up soon.

EuroTrash

As EU.flag says, without a visa she won't be allowed to re-enter France a week later.
On a UK passport, out of any consecutive period of 180 days, on a rolling basis, you can spend no more than 90 days in total in Schengen. So she's used up her allowance for the 180 day period counting from the date she initially entered Schengen. If she initially entered around mid-August I think the earliest she could re-enter at all would be next February. There's a Schengen calculator here https://www.schengenvisainfo.com/visa-calculator/. You can play around and put in various dates in to see how it works. The rule is simple enough but in practice it can be confusing, I find it quite hard to get my head round the "rolling" aspect of it.
In order to go back sooner she would need to successfully apply for a visa in her country of residence.

Unfortunately it seems you have learned your lesson the hard way, but you absolutely do have to find out the national labour laws and visa requirements of any country, and understand your obligations before you make a firm decision to enter that country and work there. Social security/healthcare is one issue that always needs to be covered one way or the other. Also income tax - good idea to read the relevant tax treaties. And since Brexit, work permits and visas even for EU countries.

This booklet in English explains the process that a foreign employer must follow if they wish to employ a worker in France. If your UK company wants to employ your wife to carry out salaried employment in France, and if no posting arrangement is possible, these would be your company's social security obligations as the employer. https://www.urssaf.fr/portail/files/...FE-UK-2017.pdf
Unless it's a very lucrative contract, what with the potential employer obligations and the potential visa application I suspect you may not want to proceed.

If your wife has already exceeded 90 days, the sooner she can leave the better. Overstaying by 8 days will likely be looked at more seriously than overstaying by 2 days, and what you don't want is for your wife to be asked a lot of questions about what she was doing and how come she missed her Schengen deadline.

EuroTrash

Sorry to bang on and probably you are clear about this and it's just the way you phrased it that came out confusing, but in France at least, working as a freelancer is a totally different statut from working as an employee. Different social security obligations and different social security entitlements, different tax arrangements, different accounting systems, different working conditions/rights (e.g; employees work a 35 hour week/get holiday pay etc etc etc, freelancers don't, etc etc etc etc).
If the company sends the invoice and your wife works for the company, in France she is classed an employee, not a freelancer.

dominoman

Thanks all. My wife is now back outside France and has just applied for the long-term Freelancer visa (Entrepreneur/independent professional). Let's see what happens.

EuroTrash

That's good to know. Best of luck with it all
Would be great if you can keep us posted. Applying for these visas for France is still a new thing for Brits and there isn't a great deal of collective wisdom built up as yet, so if folks don't mind sharing their first hand experiences, it will help other forum members in the future.

dominoman

Update on the process. Visa got rejected today.

We applied via the visa processing centre of the French Embassy here in the UAE. The application was for an entrepreneur / profession liberale, but when we got to the visa processing centre she steered us away from that and said we should apply as salaries of the Agency's French company (the one that pays my wife's British company for her time). That turned out to be a mistake as we didn’t have all the documents. One week later, they allowed us to change the application back to entrepreneur / profession liberale (at no cost), but that was then rejected.

I don't really know where to go from here. For now my wife continues to work for the French company (outside France) but they are insisting she comes to France ASAP or quits. The agent hasn’t been able to help.

Is there any specialist agency that you know of that we could pay to give advice and submit the application in a way that would get it approved? My wife is basically a freelancer / contractor. Surely there is a way to get that made legitimate so she can step back into France.