Canada's Provincial Nominee Program

An email with some very good links about immigration from the Open Borders website just dropped into my inbox this morning.  I followed one with an intriguing title, Welcome to Winnipeg, Now Don't Move by Nancy Scola and learned something about the Canadian immigration system that I didn't know.

It's called the Provincial Nominee Program.  It's a system where the federal government allows regions (provinces) to determine their needs (the criteria is up to each region) and to select the immigrants they want.  Once they've made their choice they nominate their candidates who must also make a separate application to the Canadian authorities for residency permits.  Then the Canadian government examines the applications and can accept or reject them.

Under the arrangement, federal officials still play a role, signing off on the fact that provincial nominees meet the country’s health and safety standards and actually awarding the permanent resident card. But they do it with a light touch, and quickly. In recent years, the Canadian government has rejected just 4 percent of the provinces’ handpicked nominees. The average processing time for the vast majority of applicants was a speedy 12 months. Compare that to the 4.5 years for those coming in through the federal skilled worker program.

This is not entirely a new idea.  As I recall from reading Patrick Weil, in the past the local prefectures in France had a lot more say in immigration and naturalization matters than they do today. It was only in 1891 in the U.S. that the federal government took direct control of immigration.  There were even some U.S. states that tried to pass their own immigration laws after the Civil War but in 1875 the Supreme Court ruled that immigration was a federal matter, not a state one.

Canada started a controlled decentralization of immigration authority with Quebec - a province that had some particular requirements for immigrants and wanted more autonomy.  Quebec has had a Minister of Immigration since 1968 and in 1971 the first "accord" was signed (Lang-Cloutier) which allowed that province to be represented at Canadian embassies abroad.  In 1991, Quebec was given even more authority over immigration.  They could select their own immigrants and manage their entry into the province.  

After that the door was opened through the Provincial Nominee Program for other provinces to  do something similar.  The first was Manitoba in 1996 and others soon followed.  You can find the full list of provinces with such programs here.

What are the advantages and disadvantages of what we might call a "place-based" decentralized immigration system?  

A Better "Fit":   The labor needs of Vancouver, B.C. and Montreal, Qc are not the same.  Same is true for Seattle, Washington versus Mobile, Alabama or even Bordeaux versus Versailles.  Each region, each city, has it own particular economic and social profile and it intuitively makes sense to try and match the needs of the area with the desires of the migrants.  

One very poignant example that they give in the article is the once mighty city of Detroit in the U.S.  A once thriving city of 1.5 million people, they are now down to 700,000 and shrinking fast.  

Local Community Involvement:  Where the local community (businesses, politician, churches and local taxpayers) have some say in the criteria for admitting new members, I think it's reasonable to expect that these communities would be more welcoming to migrants.  It could calm natives' fear and give them some sense of control instead of the feeling many locals may have that they must submit to whatever is being decided by distant bureaucrats and politicians on the national level.

Efficient and Flexible:  The Canadian programs seems to be very efficient and fast.  Since the selection process is decentralized, most of the work is done at the local level and the national government has only to do a quick check before issuing the necessary permits.  And it's much easier for  the local authorities to change course in response to changing conditions on the ground:  the closure or the opening of a new factory, for example, or a research center.  They don't have to wait until national immigration law catches up with the local economic facts. 

Sounds pretty good, doesn't it?  But there are downsides, in particular for the migrants themselves.

Location, Location, Location:  The places that are most interested in welcoming migrants may not be the places that migrants actually want to go.  For someone whose heart is set on San Francisco, California, Saint Cloud, Minnesota simply will not do.  There are a lot of factors that influence a migrant's decision and one of the most important is the desirability and attractiveness of the destination. Just because a place is willing to offer a visa or residency permit, does not mean that they will come.  And the idea that one might be "stuck" in a place - that there may be barriers to moving on if the migrant's needs and desires change - is a definite downside.  This is a big problem with the H1-B visa which ties migrants to an employer.  Lacking any other options, migrants may take the deal or they may simply choose to stay home or look elsewhere.

Local Consensus May be an Illusion:  In a perfect world the locals will have come to some sort of consensus about who they want to invite in.  But we don't live in a perfect world and one could envision a troubled local political environment where businesses, for example, get their labor needs met at the expense of the local population which then seethes with anger and is less than welcoming to the new arrivals.  No fun to walk into a world where local labor and business are at war.  

Enforcement:  The article goes into this in some detail.  A region issues an invitation, the migrant arrives, and then leaves for greener pastures.  What do you do then?  Chase them down and haul them back?  The idea makes me kind of queasy, not to mention that this would be a costly and cumbersome process.  Not being police states, Canadian provinces don't do this according to the article.  Instead they try to be really sure beforehand that it's a good match and that it stands a good chance of working for all parties:

The trick learned in the last decade or so, testify the Canadian experts, is to choose the right immigrants — those who can slide with relatively little friction into local life, whether that’s having a suitable, sustainable job lined up, having spent time in their chosen province already or having other Chinese, Nigerians or Ukrainians on the ground who are willing to help them get settled.

Those are some of the pros and cons but I personally think the advantages far outweigh the disadvantages.  Could this be a model for other countries?  Absolutely.  Some Americans are looking at it in the context of immigration reform which is being debated right now in the U.S.  Peter Spiro, one of my favorite authorities on immigration matters, made this argument in favor:  “Why should cities like New York, Chicago or Washington that don’t have a problem with immigration be constrained by the lowest common denominator, like an Arizona or Alabama?”  That is true of other countries as well.  In France such a system could be used to draw people into some of the under-populated areas outside of the main cities where migrants tend to cluster.  Spreading migrants around in communities that have clearly expressed that they need and want them might go a long way toward reducing tensions over immigration everywhere.

And once again, Canada shows us another way to look at managing immigration.  I highly recommend the article - it's a good read.   

The Flophouse French Canadian Connection

I've mentioned before that my American family has a connection to French speaking Canada.  In fact the first of my ancestors from Europe to hit North America weren't headed for the U.S. at all - their destination was la Nouvelle France.  As a child I knew that my great-grandmother could speak French and that it had something to do with her family history and where she grew up but it wasn't until I was much older and had pulled a reverse migration back to France (300 years after my first ancestor went the other direction) that I began to take an interest in the family history.  Over the years I and my mother have tried to pull the story together through internet searches, talking to family members and to distant relatives through emails and message boards.  I don't think we will ever know as much as we would like but I thought it would be interesting to share what we do have and to demonstrate that migration can be circular even when it is separated by hundred of years and many generations.

The story begins with Paul de Rainville, who was born in 1619 or 1620 to Jean de Rainville and Jeanne Burchet in St. Thomas de Touques.  An old port city, today Touques is a very small city of about 4000 people in Lower Normandy (Calvados) but under the Ancien Regime it was even smaller and divided into two parishes:  Saint-Pierre (population 300) and Saint-Thomas (population 700).  In 1638 he married Roline Poite (or Poète)   Paul was baptized after his birth in the church St. Thomas de Touques which was built in the 13th century and still stands today.


To put it in very modern terms, Paul grew up to be a kind of contract worker blessed with good connections.  Through a probable link with Robert Giffard, the founder and Seigneur de Beauport, he came to the colony to work leaving his family behind in France.  It's not clear what kind of work he was engaged for but this site which gives a very good account of his life says that the de Rainville family in France were:

Constructeurs de navire et de grosses oeuvres, pêcheurs et mariniers, marchands de bois et intendants de terres et forêts, les De RAINVILLE n'étaient pas sans ressources. Il est plus probable que les De RAINVILLE et les GIFFARD se soient connus au travers de leur association mutuelle avec Guillaume DE CAEN.  

(Builders of ships and other large construction projects, fishermen and seafarers, wood merchants and field and forest managers, the de Rainville family was not without resources.  It is probable that de Rainville and the Giffard's knew each other through a mutual association with Guillaume de Caen. )

Paul de Rainville landed in New France in 1655, worked for three years and then returned to France where he gathered up his wife, Rolline, four of their children and one niece, and returned to Québec in 1659. He acquired land and a new wife after Rolline died in 1666. Paul died twenty years later in 1686. 

His son, Jean (also born in Touques), followed his father to New France and was given a farm by the Giffard's: "une terre de deux arpents de long par vingt-deux arpents de profondeur au bourg de Fargy." He married twice and his second wife (my ancestor) was Elisabeth de la Guérinière (also known as de la Guéripière), a "fille du Roy" who arrived in 1671 and who was one of around 800 French women sent out to the colony to be spouses for the colonists. Not a bad deal - she came with a dowry of 500 livres tournois. (See this site for the conversion into Euros.)
In the census of 1681 Jean and his wife appear though the spelling of the name has changed (and will have several different spellings over the years).

"Jean d'ERINVILLE, 43 ans; Elizabeth de LAGUERTIÈRE, sa femme, 33 ans: enfants: Jean, 15 ans; Elisabeth, 9 ans; Marie, 8 ans; Louise, 6 ans; Paul et Charles, jumeaux, 4 ans; Marie-Charlotte, 2 ans; 1 fusil, 4 bêtes à cornes, et 18 arpents en valeur."(Jean D'Erinville, 43 years,  Elisabeth de LaGuertière, his wife, 33 years:  children:  Jean, 15 years, Elisabeth, 9 years, Marie, 8 years, Louise, 6 years;  Paul and Charles, twins, 4 years; Marie-Charlotte, 2 years; 1 gun, 4 cattle and 18 arpents of land.)

These were the first generations to transition from life in Europe to a life in North America. Over the years their descendants scattered around Québec: Champlain, St. Cuthbert, Ile Dupas, Trois Rivières and many other places.

Then in 1859 Marie Delia Rainville, daughter of Dieudonné (aka "Dennis") Rainville of Berthierville, Québec and Césarie Demers, was born either on the way to the U.S. or right after they arrived in Barron Country, Wisconsin. Marie Delia was the mother of my great-grandmother, Celeste. The family landed in Rice Lake and were founding members of Our Lady of Lourdes church. They were part of a huge wave of migration (about 900,000 people) from Québec to the U.S. between 1840 and 1930. Marie Delia grew up in the U.S. and married Charles-Francis (Francois) Amans whose family also came from Québec. They had what I think we can all agree was a famille nombreuse. My mother said in an email :

"Your great great grandmother Marie Delia raised 11 children surviving to be adults, raised her own sheep, sold quilt bats – one of which is in the quilt you have, sold socks, (knitted by her four daughters.) Educated all four of her daughters through the equivalent of high school in the local convent school, took in borders, outlived her husband – all of this without running water, electricity, central heating, washing machines, etc."

Marie Delia was the mother of my great-grandmother, Celeste, who I remember well (she passed away when I was 12). Celeste married my great-grandfather, Pete Smith, in Rice Lake and he whisked her off to the little town of Naches in Washington state where they had a farm. They in turn had one surviving daughter, my grandmother Rachel. Rachel married a man from Palin country, Arthur Heath of Sandpoint, Idaho, and they lived in Seattle after he got back from the war. They had two daughters, my mother and my aunt. My mother stayed in Seattle and had me and I grew up to marry a Frenchman and move to France. And now I have one daughter living in Montreal, Canada and the other (if it all works out) will be joining her in September.

Will they then head for the U.S.? Will they come back to France? Or will they stay in Canada? Who knows and frankly it doesn't really matter. They have a connection to all these places and they are all great places to live and work and build a life. And maybe, just maybe, they'd like to trace a new path and be the first of the family to settle in, say, Asia.

So that's the story as we know it today. From France (and perhaps England before) to Canada to the U.S. to France and over to Canada again. Took us about 300 years to come full circle but we made it.

 Whatever the future holds, my mother and I have a date with the past. The next time she's in Paris we'd like to drive up to Touques and see the place where where on part of the family's migration journey began. Stand in a small city where our ancestors were born and visit that church where Paul de Rainville (and perhaps his children too) was baptized. That would really be something, wouldn't it?

Those Darn Illegal French People

Some days there is stuff that shows up in my mailbox that is so delicious and so easy to take a shot at that I have to sit on it for a few days lest I say something I will later regret.  It's called "restraint of pen and tongue." Or to put it another way, I try to engage brain before tickling the keyboard.

Think Progress published this little news item last last month: Top Republican Warns of French People Illegally Crossing the Mexican Border into Texas.

In a local radio interview Texas Senator John Cornyn said:

“You gotta stop the flow of people coming across and my friends and your friends Ed who have places in South Texas tell me, as a matter a fact a guy told me last night, he said we’ve got people coming across our place speaking Chinese, French and basically all of the languages in the world, coming through and across our southern border.”

Oh, my goodness.  Stop the presses and call out the Army.  The horror and the temerity of people speaking other languages trying to get into the U.S.!  And some of them even speak French - you know those folks who didn't back that highly successful U.S. invasion of Iraq?  Who knew that they would later be swarming over the border from Mexico to take advantage of all the benefits the U.S. has to offer like that high unemployment rate and those oh-so-generous social welfare benefits?  (So wonderful compared to places like Canada and Europe.)

You know, some politicians should not be allowed out in public without a handler.  After I was able to stop laughing every time I read the article I tried to seriously consider what he said (took a few days) and to be fair.  Here are a few things I came up with - what he was trying to say and why I think it was so wrong on so many levels:

French Speakers:  OK, he was not specifically targeting people from France.  French-speakers can be found the world over in many countries including some in North America:  Canada, Haiti are two that come to mind immediately.  Still, he is saying that French speakers are a part of the illegal immigrant "problem" in the U.S. along with the Chinese and others.  I have a problem with that.  Sure migration is becoming more international but targeting a particular population as being particularly doubtful and scary because of the language they speak is pretty dumb.  

French-Americans:  Does not seem to have occurred to him that there are French-speakers who are Americans.  My great-grandmother born into a French Canadian community in Rick Lake, Wisconsin, comes to mind as do my children who are bi-lingual French/English.  How nice to know that they could become objects of suspicion if they dare to speak French if they try to cross the border into the US from Mexico.  There is no official language in the U.S. and as an American citizen I will speak any damn language I like when I cross that border (and when I'm actually inside the country) and if that gets me in trouble, to hell with my compatriots who don't like it.

Local Politicians:  These guys and gals need to get out more and that is just as true of France as it is of the U.S.  Expand their social circles and maybe even get out of the country once in awhile.  Senator Cornyn's biography on his website does not list any other languages spoken as part of his achievements.     He may very well be an "articulate and powerful voice for conservative values" but no indication that this anything other than a mono-lingual voice.  That's kind of scary given how many of his constituents speak Spanish and other languages.

That said, I'm sure he is probably a fine person and I wouldn't for one moment cast aspersions on his character.  But as U.S. politicians debate immigration, they really need to watch what they say and consider the larger context outside the U.S.  It's not just the domestic audience, ladies and gentlemen of the U.S. Congress, that you have to worry about, it's also an international audience:  U.S. citizens and their children abroad, potential migrants like those much-coveted STEM (science, technology, engineering and math) folks (and gee how many French speakers are going to feel welcome after listening to THAT) and the millions upon millions of French speakers in the world who have no intention whatsoever to come to the U.S. legally or illegally but who just might be a little annoyed at being singled out by a local politician as possible lawbreakers or bad influences.  

Enough said.  That politicians do and say dumb things is not new.  I do hope, however, that a few in the U.S. Congress get a clue and start looking beyond their own very limited and parochial experience as they contemplate how to fix their broken system.  Because if they don't, their new immigration system will be every bit as bad as the old one.

Baccalauréat 2013 and Ô Canada

The French baccalauréat, the exam that French students take at their end of their studies, is a grueling exercise.  Created in 1808,  the format of the French "Bac" is a combination of written (essay questions) and orals.  It serves two purposes - it marks the end of high school and opens the way to higher education in France or abroad.

The exact nature of the exam depends on the kind of Bac a student aspires to: général, technologique or  professionel. Within the baccalauréat général (which is primarily for students headed for university) there are three possible disciplines to choose from: Literature (Bac L), Science (Bac S) and Economy and Society (Bac ES).

The grading of these exams is pretty tough.  In 2012 there were 703,059 candidates registered for the exam: 48% for the baccalauréat général, 21% for the bac technologique and 31% for the bac professionel. The success rates were: 79.3% for the general bac, 69% for the technology bac and nearly 69% for the professional bac. Over 175,000 educators were directly involved as exam administrators, monitors and correctors. 

The grading scale is from 0 - 20 with 10 being the lowest passing grade.  Above 10 there are the "mentions" for those who do particularly well. 

• mention  "Assez bien" : average equal or superior to 12 and less than 14 ;
• mention "Bien" : average equal or superior to 14 and less than 16 ;
• mention "Très bien" : average equal or superior to 16.

The elder Frenchling passed her French baccalauréat in 2011 in Literature (Bac L) with a "Mention Bien".  She is now in her next to last year at McGill University in Montreal, Canada where she was accepted into the Honours Psychology program.

Now in 2013 it is the younger Frenchling's turn.  Right now she is preparing for the science Bac (Bac S) with a concentration in Math/Physics.  At the same time she is preparing an
Option internationale du baccalauréat which a special mention for foreign and French students who are competent in a second language.   She already sat a few of the exams last year and, to my delight, scored a 15 in written French.  This is my revenge against every French teacher who yelled at me and predicted that my children would never ever be fluent in French if I insisted on speaking English at home.  Boy, am I glad I ignored that and I counsel any of you who might be in that situation right now to do the same.  The idea that a multi-lingual household equals academic failure is an old myth and should not be taken seriously.

This year she will sit the rest of the exams and what a heavy load it is:  History, Geography, Math, Physics, English, Spanish, Japanese, Life and Earth Sciences and what I call "Philo-lite" - this is Philosophy for science students and it does not seem to be anything like what her elder sister had in the Literature program.  I am nonetheless rather grateful that the younger has any classes on this subject at all since Having spent the better part of my life surrounded by engineers and having built a career in IT, I am personally delighted that philosophy continues to be a part of the French curriculum even for the geeks. I have sat through many a meeting rather wishing that the people around me had spent a little more time thinking about free will and a lot less solving equations.

To muddy the waters and add another level of stress the younger Frenchling has had to make some decisions about the future right now.  Universities in North America had application deadlines earlier this year and even the French system has asked about intentions well in advance of actually passing the Bac and getting the results.  So we've had to think hard about things like:  What country, what university, what language, and what programs she should apply to.  The short list came down to 6 universities in France and Canada (and we'll take about why none of the U.S. universities made the cut a little later).  She was accepted at 5 of the 6 universities she applied to and my daughter spent a few weeks after we received the acceptance letters trying to make up her mind.  She took her final decision a few days ago.  What was the deciding factor?  Well, her school recently organized a field trip to a physics research center just outside of Paris and while she was there she asked the physicists she met what they thought.  They said that if she was headed for Canada she couldn't do better than the Université de Montréal (UdeM).  And that was that.

Be aware that this is not yet a done deal.  UdeM made an offer that is contingent on her passing her Science bac and getting good scores in Math and Physics.  But, if all goes well, this fall she will join her sister in Montreal in the Physics Program at Udem.

Now that the decision is made, the questions have begun.  Why Canada?  Or to put it another way why isn't she staying in France or why didn't she  choose to go to the U.S.?  Both were clear possibilities since she is a multi-lingual (French/English/Japanese), dual French/U.S. citizen with good grades, a passion for science, a strong math and science preparation from an international high school seeking a STEM (Science, Technology, Engineering and Mathematics) degree program.  Here are a few of the reasons that she and her sister will most likely be sharing an apartment in Montreal this September.

A Fourth Place:  Both Frenchlings have experience living in three countries:  the U.S., France and Japan.  These places are known and loved but not much adventure there.  French-speaking Canada is a place to discover.  Plus, Montreal is such a beautiful city and has such a unique blend of European and North American cultures.

Lack of Flexibility:  This was mostly a factor with the elder Frenchling as she looked at the possibilities post-Bac in the French university system.  Her dream was to go into forensic psychology.  Alas, a Bac L did not really open many doors in France and she was directed toward a degree in Law instead.  Since that really wasn't what she wanted to do, she looked elsewhere for a system that was more flexible and didn't hold her high school diploma in Literature against her.

Price Tag:  This was THE factor that ruled out the U.S. very early in the college selection process.  Yes, there is student aid and scholarships and loans and universities in the U.S., if they accept a student, do their very best to make it happen.  Still, the idea that we (the parents) would have to empty the savings accounts or see our daughters start out their working lives with tens (if not hundreds) of thousands of dollars of debt just made everyone's stomach hurt.  Full tuition for a non-resident undergraduate student at my alma mater, the University of Washington,  a good but not Ivy League level institution, is a whopping 30,000 USD per year.  This is a global market, ladies and gentlemen, and I'm sorry but the price-quality ratio just ain't there.  I found this so appalling that I actually wrote my senator back in Washington state to ask about it.  I'm sorry to say (and I'm starting to get used to this) my elected representative back in the U.S. didn't even bother to respond to my mail.

Compared to the U.S. university system, France and Canada are amazingly affordable.  A university education in France is nearly free (about 300 Euros a year) and Canada is very reasonable.  And in French-speaking Canada, French citizens are exempt from the international tuition rates and pay the same rates as Canadian citizens according to a convention signed between the two countries.  A year's tuition for a French student at McGill University, an Ivy League level institution ranked in the top 20 universities in the world, is a modest 3,785 Canadian dollars (about 2,800 Euros).

And for the cherry on the cake, a good score on the French bac means that a French student will be given credit for many entry-level university classes.  The elder Frenchling was given an entire year's worth of credits for her bac results and the younger Frenchling will be exempt from (and get credit for) all the entry-level math classes and many of the science ones too.  This mean that both can complete a four-year degree in three years.

Recruitment:  The U.S. system seems to pay no particular attention to U.S. citizen students born or raised abroad who might wish to attend university at an American school.  As far as I can tell they are simply treated as "international students" which means they must pay out-of-state tuition rates and there are no particular incentives being offered to encourage them to come over to their other "home" for an education.  Given the US's thirst for STEM students I found this rather surprising.  Look, these kids don't even have to get a student visa to come to the U.S. because they are already U.S. citizens and most likely already have American passports and speak fluent English (as well as other languages).  My daughter's international school did organize a few meetings with recruiters earlier this year but it wasn't much compared to the vast numbers of American universities ostensibly seeking students from abroad.  The French system didn't perform much better.  Aside from one field trip and a chat promoting the Université Paris-Sud (which also accepted the younger Frenchling by the way) there was not much encouragement to select one French university over another or any attempt to retain those who were thinking about going abroad.

In my experience, Canadian universities do a much better job with students from abroad and both the U.S. and France could do worse then to look at how they do it.  When the elder Frenchling was trying to make up her mind and had questions and concerns, she had an almost instant response from the staff at McGill (and boy did I appreciate their patience because she had LOTS of questions).  UdeM has been much the same.  From recruitment to final acceptance there were many helpful (and bi-lingual) people available to move things along.  The application process was easy (and on-line).  The staff got right back to her with a list of paper documents they wanted.  And above and beyond the administrative details the tone from both McGill and UdeM was warm and welcoming.  It was,"We would be very happy to have you" and now, "We are so glad you accepted."  Since then she has been receiving emails with information about the immigration formalities (the CAQ), campus life  and many other things which have her (and us) feeling very good about her decision and singing:

"Ô Canada ! Terre de nos aïeux,
Ton front est ceint de fleurons glorieux !
Car ton bras sait porter l'épée,
Il sait porter la croix !
Ton histoire est une épopée
Des plus brillants exploits...."

For a good example of some slick recruiting and for those of you who might be interested in knowing more about UdeM, here is a short video in French about the school oriented toward international students.  The accents are delicious...

New EU Rules on Cross-Border Inheritance

For new laws and regulations governing cross-border issues the European Union is really leading the way.  Here are 27 member states with their own sovereign territories and long long histories trying to build something together that they all can live with to mutual fun and profit.  The process is slow because there are so many actors, so much diversity, and so many interests.  Negotiations over EU proposals can take years before they finally come to fruition.  What they come up with is worth watching because their solutions could be a model for other regions wishing to form more closer unions and could have an impact on international law and even other countries' domestic laws.  No area is untouched:  education, voting rights, immigration, taxation, contracts and even family law.

On July 4th, 2012 after 7 years of negotiations, the European Parliament and the Council of the European Union passed a new law to manage cross-border succession (inheritance) in EU countries.  The purpose here is to manage conflicts of law that arise when a deceased person, who may or may not have been living in his country of citizenship, had an estate located in multiple countries.  In those cases, which are becoming more and more common, the outstanding questions were:  Whose law prevails and do individuals have any say in how they wish their cross-border estates to be managed and distributed after death?  It was to answer this that the EU passed what is commonly known as the EU Succession Regulation or Brussels IV.

Regulation (EU) No 650/2012 on "jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession" is now EU law for 24 of the 27 member states (the UK, Ireland, and Denmark opted out) and member states have three years to bring their domestic legislation into compliance.  What's in it?  What does it mean for individuals whose lives span multiple countries?  And are there any inheritance issues not covered by this regulation?

Let's start with the situation prior to this regulation.  There was much variation in inheritance laws among the 27 member states.  France alone has some very complex and strict rules that many foreigners discover to their horror when they follow in the footsteps of Peter Mayle and retire in the French countryside.     Angelique Devaux, a French attorney who wrote a very good paper about the new EU regulation, describes what this meant in practical terms for a mobile European with one foot in the UK and the other in France when he passed on:

"For instance, a French citizen, married with 3 children, was living in UK where he died. He owned one property in Paris, France and one property in London, UK, one bank account in France and one bank account in UK. Both France and UK currently apply the division system. French law will only be applied on the French property and the British law on the rest of the estates (movable French estates and British movables and immovables). If the deceased had made a will in totally favor of his surviving spouse, his wishes could not be entirely applied on the French property because of the French forced share rule. This typical example creates an imbalance in the succession and it does not respect the last wills of the deceased."

According to EU Justice Commissioner Reding, "There are around 4.5 million successions a year in the EU, of which about 10% have an international dimension. These successions are valued at about €123 billion a year."So when the EU looked at how to better manage that 10% they had three objectives in mind:   Encouraging the free movement of persons within the EU,  harmonization of succession regimes and the avoidance of conflicting inheritance laws, and respect for the wishes of individuals.  

"The proper functioning of the internal market should be facilitated by removing the obstacles to the free movement of persons who currently face difficulties in asserting their rights in the context of a succession having cross-border implications."

So how do the new rules achieve this?

Unity of Succession:  One law/one jurisdiction will be applied to the entire estate regardless of how many EU countries are involved and what kind of assets are involved (movable or immovable).  But how to determine which law to apply?

Habitual Residence:  The EU looked at three possibilities for whose laws would prevail in a cross-border succession where the deceased had not expressed a preference prior to passing on:  citizenship, domicile and residency.  The EU went with residency.

"...this Regulation should provide that the general connecting factor for the purposes of determining both jurisdiction and the applicable law should be the habitual residence of the deceased at the time of death. In order to determine the habitual residence, the authority dealing with the succession should make an overall assessment of the circumstances of the life of the deceased during the years preceding his death and at the time of his death, taking account of all relevant factual elements, in particular the duration and regularity of the deceased’s presence in the State concerned and the conditions and reasons for that presence. The habitual residence thus determined should reveal a close and stable connection with the State concerned taking into account the specific aims of this Regulation."

So I interpret this to mean that if a German citizen who is a long-term resident of Spain with property and bank accounts in that country and in the home country gets hit by a car in Barcelona and dies unexpectedly without expressing his wishes in advance, his entire estate in Germany and Spain would fall under Spanish inheritance law.   It would seem to exclude those who simply have a vacation home in another country and only spend a few months there every year.  Sounds simple enough and yet I think we can all come up with situations where it would not be so clear which means that there will be some sort of arbitration involved to determine the closeness of the connection.  

Angelique Devaux takes exception to this decision to use habitual residence as the default and argues in favor of nationality being the determining factor.  I think she's wrong and greatly underestimates the prevalence of dual citizens in the EU.  It could be just as complicated to decide which nationality is dominant in such cases.  Residency has the advantage of being concrete and provable and it avoids conflicts between states over who has primary sovereignty over the deceased person and, by extension, the estate.  The regulation also allows for nationality to be used as one factor in cases where there is a real doubt about residency.  But she does make a very valid point that the heirs might look at at the two (or more) different regimes under which the estate could fall and, wishing to have the one most favorable to them applied, might provide a distorted view of the "facts" that prove or disprove residency.  

Professio juris (choice of law):  And here is where the new EU law is something of an innovation.  A way to avoid the application of the habitual residence principle is simply to declare in advance what regime one wishes one's estate to fall under.  This means that a person living in the EU can choose to have the estate fall under the inheritance laws of his country of nationality (no, one cannot decide simply to apply willy-nilly just any country's inheritance laws).  

"This Regulation should enable citizens to organise their succession in advance by choosing the law applicable to their succession. That choice should be limited to the law of a State of their nationality in order to ensure a connection between the deceased and the law chosen and to avoid a law being chosen with the intention of frustrating the legitimate expectations of persons entitled to a reserved share...
A choice of law should be made expressly in a declaration in the form of a disposition of property upon death or be demonstrated by the terms of such a disposition. A choice of law could be regarded as demon­strated by a disposition of property upon death where, for instance, the deceased had referred in his disposition to specific provisions of the law of the State of his nationality or where he had otherwise mentioned that law. " 

I'm assuming this means a will or other testament or contract prepared in accordance with the law of the state of nationality.  So a French person living in Italy can have a document drawn up that says that the division of his or her estate is to be done in accordance with French law, not Italian law.  What is very interesting about this choice is that it is not restricted to EU citizens - it also applies to EU residents and foreigners owning property in an EU member state.  So, in theory, I, a U.S. citizen, could have a will drawn up in accordance with the laws of Washington State in the U.S. (which pretty much says I can leave my assets to anyone I wish)  and it would have to be taken into consideration.  However where my wishes might be contrary to the "the legitimate expectations of persons entitled to a reserved share..." (which is the case under French law) this probably wouldn't fly.  Nonetheless this option opens up all kinds of new possibilities for multi-country estate planning and if done properly can greatly simplify cross-border succession.

European Certificate of Succession and Will Database:  To help keep matters simple and efficient, the new regulations provide for a certificate of succession, "a standard form certificate designed to enable heirs, legatees, executors or administrators to prove their legal status and/or rights" that can be written up in one member state and used in another.  There is also a project called IRTE which would connect all the European will registers so one could file a will and testament with one country's authorities and it could be easily located wherever the person happens to be when he or she dies.

That grosso modo is what the new succession law is all about.  What is not covered under this law?  Trusts, matrimonial regimes, gifts, taxation and a few other things.  It also does not completely resolve conflicts when they come up against a non-EU state's laws.  Angelique Devaux gives this example:

"For instance, a Belgian was living in the US, died with immovable assets both in Belgian and USA. American law will govern the succession Law as the habitual residence of the deceased. What does the American conflict of law’s say? American law applies the lex situs rule to immovables. Such consequences are that the American property will be governed by the American law while the Belgian property will be governed by the Belgian law. In that case, there is a revival of the division’s principle."  

So the law isn't perfect but since "le mieux est l'ennemi du bien" (perfect is the enemy of good),  I'd call it a very satisfactory start.  We'll see how it plays out as it is translated into each member state's domestic legislation.

If you are in a situation where you face a cross-border succession either as a person with a multi-country estate or as an heir to one, my best advice is to do some research into this (please do not take my word on all of this as I am not an attorney) and then go talk to a competent professional.  "Easier" does mean "completely straightforward and anyone can DIY (do it yourself)."  A very good place to begin is this website run by the EU called Successions in Europe.  Available in 23 languages, it gives an good overview of the inheritance laws of all 27 member states. 

As usual I have been a bit wordy.  I will end this post with a short video by Commissioner Reding about the new law and the website.  

Settlers, Sojourners and Tax Evaders

The language we use shapes our perceptions and others perceptions of us.  Though words can be paltry things that don't come close to doing justice to our experience, we still try to find just the right word or phrase to encapsulate it.

It's a two-way street, however.  We can come up with any word we like but for there to be shared understanding the sender and the receiver must more or less agree on the meaning.  Needless to say where there is disagreement, there is frustration.   Worse, when a word that is loaded with meaning and judgement in one context is applied to denigrate people in another, the entire frame of a debate takes a sinister turn.

Take the word "tax evader,' for example.   This word which is thrown around promiscuously in this time of fiscal crisis, implies so much - the evil rich expatriates evading their responsibilities while living the good life in Rio de Janeiro or Los Angeles as their countrymen sit at home and suffer the erosion of social services and high unemployment rates.  No word exists however for the retired Canadian/American on a fixed income or the stay-at-home American mother in Germany or the former U.S. military man or woman running a small business in Asia or the au pair in France earning minimum wage or the IT worker in India or the immigrant in the U.S. with bank accounts in the home country who did not report their foreign bank accounts, file returns or pay their taxes in the U.S. because they didn't know they had to (and, frankly, when they do get clued in they find it pretty idiotic).

None of these people would agree to being called "tax evaders" and yet that is the language that is used by lawmakers, government officials and the media to describe them.  This and other negative terms shape the public debate and lead to a "one size fits all" approach to initiatives and laws designed to combat tax evasion.   In a world where catchy headlines, one-liners and sound bites rule, lengthy explanations of complex (and yet very common) circumstances gain little or no attention.  Homelanders say "tax evader" and the bewildered expatriate replies, "Look, I pay taxes in the country where I've been living and working for the past ten years..."  and that's usually enough for the former to turn deaf.   We need better terminology - a word that sums up the situation in a way that is pithy, clear and would make a great sound bite.

Because that term "tax evader" in this context simply will not do.  It implies nefarious motives where none exist.  Applied to expatriates, it implies that the main reason that someone went abroad in the first place was to escape one's responsibilities to the homeland.   But behind every headline that excoriates the latest artist, sports star, CEO and entrepreneur to leave the country are hundreds of thousands of regular people who leave to get married, to raise children, to retire, to take a good job or start a business.  Human beings doing very human things.  The only difference is that they are not doing these things in the country where they were born or raised.  But that is not the perception of the people they left behind.

Emigrants, unless they are showering the home country with desperately needed remittances, are pretty universally objects of suspicion (and sometimes they are outright loathed) and that is true from the developed world to the developing one.  If home is where the heart is then how could these people literally rip out their hearts, leave the land of their birth and their childhood friends and families, for economic gain?  And if the rational for leaving is love, well, isn't there something slightly suspect about someone who runs off to a foreign country to sleep with some damned foreigner?

That is all too often the view of the home country population but the funny things about emigrants is that they become immigrants as soon as they hit that distant shore.  If they are well-educated and are bringing money and talent into the country, they are generally welcome.  In the raucous debate over immigration reform in the U.S. a clear distinction is made between those who are considered "undesirable" and those the U.S. desperately wants and needs - the entrepreneurs and those with STEM degrees (science, technology, engineering and mathematics).

In the discussion it seems not to have occurred to the American public or its lawmakers that the people they are trying to attract are the product of other countries' investments in producing a well-educated populace.  Is there not an argument here that these countries deserve some compensation from the U.S. for providing it with skilled workers who will be producing for the American economy and thus eroding other countries' tax bases?   Another issue is that these people are pulling money out of other countries to park it in low tax states like Delaware.  If US politicians were really serious about their lofty goal to combat tax evasion, why not make it a requirement that USCIS officials check with these immigrants' home countries first to determine if these folks are trying to cash in on beneficial tax rates in the U.S. (the very thing they suspect those traitorous American emigrants of doing in other countries) and if they actually paid their local taxes before making that wire transfer.

To put it another way, an "immigrant investor" might just be another country's "tax evader."  One has to wonder if the U.S. or any other country would turn the money down if it turned out to be from somebody else's perceived "exil fiscal."  Somehow I doubt this will ever happen. :-)

To be very clear I am not proposing that these things be done - just trying to give another take on it.  What I would like to see is an acknowledgement on everyone's part that we live in a globalized world where people and capital circulate and that this is a Good Thing.  Making draconian "one size fits all" rules to tackle the worst abuses of capital flight and tax competition while not evaluating the impact on human beings is cruel, unjust and ultimately counterproductive.  120,000 registered French citizens in the U.S. and 100,000 U.S. citizens in France.  Is there really anything wrong with this picture?  And the name-calling and distorted perceptions are just plain dumb and the efforts to shame people into coming "home" or implying that they all left to avoid paying their "fair share" are utterly ridiculous.

In my ideal world everyone would have the opportunity to take his or her talents and try his luck in whatever country will have him or her.    Some will be sojourners (temporary residents) and some will be settlers (permanent residents).   And in my perfect world the laws and tax regimes of all countries would be "labor export neutral" which would mean that no worker would ever be worse off from a tax standpoint if he or she chose to live and work outside his home country.  I'm not just talking about double taxation, I am also referring to onerous filing and reporting requirements too.

Two battles to be fought here.  The first is about perceptions and terminology.  We need to change the language we use when we talk about emigration so that it is less judgmental.  "Emigrant" or "Expatriate" should not be a synonym for "tax evader" and the act of leaving one's country should never ever subject a person to a world where he is guilty in the eyes of his compatriots until proven innocent.  Some of this, I think, will happen naturally as more and more people (yes, even Americans) take advantage of all the opportunities unfolding in an increasingly globalized world.  Emigration starts to look very different to homelanders when it is their uncle, aunt, cousin, son, daughter, grandson or granddaughter flying off to take that job halfway across the world.

The second battle is one for the rights of the mobile worker.  All laws to combat tax evasion, all exit taxes, all diaspora tax proposals existing and proposed should be evaluated against one standard:  Do they make it harder for working people to live and reside wherever they are welcome?  If they do then we all have an interest in fighting them tooth and nail.

High time to reframe the debate over "mondialisation" because if globalization is to work for people, then people need to be at the top of the agenda and not just an afterthought.

Professor Allison Christians of the McGill University Faculty of Law very kindly linked to this post and added her comments on her blog, Tax, Society and Culture.  Very interesting read and I very much like her  suggestion that the impact of fiscal controls (existing and proposed) on global mobility in general and outbound labor in particular is a very rich area for further research.

Opération jardin

"Our bodies are our gardens, to the which our wills are gardeners: so that if we will plant
nettles, or sow lettuce […] either to have it sterile with idleness, or manured with industry, why,
the power and corrigible authority of this lies in our wills. "
William Shakespeare, Othello

I love my little house.  It's not much size-wise (55 square meters/592 square feet) but over the years I've come to prefer small living spaces.  Less to clean and who in the heck needs more than one bathroom anyway unless you have a famille nombreuse (large family).  We stopped at two Frenchlings so we don't count (and I've seriously rethought this over the years since the French tax breaks starting with three kids are phenomenal).

The house has so many nice features.  It has two porches (front and back), tall windows that open wide,  old fashioned cast iron radiators (perfect for getting bread dough to rise just right), the funkiest old chandelier (so ugly and odd that it's beautiful), porcelain door knobs, old pine floors in the living and dining rooms and tile everywhere else and I do mean everywhere (the previous owner was a tiler by trade and he did good work).   Only thing missing right now is our Petit Godin and we're waiting on the Portuguese mason to come and raise the chimney.

As much as I love the house, I love the garden more.  For a house in the city this garden is huge.  The house is set back a bit from the street (thank God) and so there is a small garden area in the front as well as a larger one in the back.  The previous owner put in two lovely raised beds and laid a stone patio so there's no grass to tend and mow in the front.   When we moved I transferred much of what I had in the garden over at the old Flophouse to these beds.  So far so good - the peonies, hydrangeas and roses seem to have survived the migration quite nicely.


As we turn the corner into spring, my attention is now on the back garden and here I'm being a more cautious.  There has been a garden here since 1929 when the house was first built and the previous owner was a woman after my own heart - a gardener.  The most obvious signs of her work which can be seen even in the dead of winter are the lovely lilac, the two forsythia and an abundance of old climbing roses.  I did some investigating and came up with an old aerial photograph of the property and in it you can see that once upon a time there were other trees, bushes and hedges that are now long gone.  There is an old well-established perennial bed at the farthest end and so far I've seen daffodils, peonies, ferns and other plants that are coming up slowly but surely as the weather gets better.  I don't believe in radical do-overs when it comes to old gardens.  My job as I see it is to work with what is already there so that past and present blend seamlessly together.

One feature of the back garden that deserves a mention is the huge stone wall that separates my property from that of the apartment complex next door.  This wall is a little piece of Versailles history.  Constructed in 1849, it originally ran from the octrois on the avenue de Paris and was built to separate Porchefontaine from the adjacent neighborhood called Petit Montreuil.  Today the wall is still in great shape and my role here is to be a good caretaker of my portion of it so it will last for another 150 years.

So many potential projects here with what is not exactly a blank canvas.  Starting with the principle that it is best to  "make haste slowly" this is what I've been up to over the winter months:

General clean-up:  It's always safe to start with what we can all agree is not desirable in any garden in any era:  trash, weeds, dead wood, dying hedges.  The last was quite the project.  The previous owners had planted thuya hedges on both sides of the garden for privacy and I'm sure they looked fabulous for many years.  However by 2013 they were overgrown and the one on the right side was sick sick sick - some disease that caused the branches to die and turn rust orange.    It was too far gone to be treated (not to mention that it looked just terrible on the neighbor's side of the fence) and so, with the help of a small crew, they came out.

Ivy is pretty in pots but it's a nightmare in any other place in my opinion and when it comes to stone walls it's downright destructive.  Armed with a pair of pruning shears, a sharp knife and a tall ladder,  I took off all that nastiness that was happily growing in the crack and crevices of that beautiful old stone wall.

Pruning:    Started in January and is still on-going.  I started by removing all the dead wood on the climbing roses and more recently did a second pass to shape and encourage new growth.  I also fertilized as soon as I saw the forsythia was blooming.  Thus far I have been rewarded with lots of buds.  These are old old roses and I'm going to do everything I can to save them.  That said, they have a year to get cracking and I will replace them if they are beyond hope and don't produce to my satisfaction.

More recently I've been tackling some of the flowering shrubs and other hedges.  Last Tuesday I put out three large bags for the weekly collect of déchets végétaux (clean green).  I'm still waiting on the forsythia which has just started to bloom.  I was at a bit of a loss as to how to prune those since I've never had them before in any garden I've actually owned or been responsible for.  Thankfully my mother came through with a copy of Cass Turnball's Guide to Pruning.  It's all there, everything you need to know to prune right, and a fun read too.   Not only is the author a sensible sort, she's hilarious.  The "Poppa Bear, Mama Bear, Baby Bear"  theory of landscape design had me howling but she is basically right and it's a good analogy to help you properly place trees, shrubs and ground cover in the garden.

Beds:  Digging up the existing perennial bed was out of the question until I knew exactly what's there and from what I'm seeing now that was a good move.  Would have been a shame to accidentally take out those peonies or daffodils.  What I could do was buy some better soil and lightly work it into the existing dirt and cover the roots that were exposed.

No such problem with the bed that was created after the removal of the thuya.  I brought the bed out about half a meter and bought huge bags of soil amendments that I worked into the old tired soil.  The first beneficiary of this new bed?  The neighbor's cat who said, "Cool, a new litter box!"  and proceeded to use it as such.  Often.  Good thing I like cats or I might have reacted badly.  Plus the poor thing has a collar with a bell which means that I and every rodent and bird in the vicinity can hear it coming a mile away.  Kind of defeats the purpose of a cat.  I'd say he's suffering enough and I don't need to add to the misery.

Planting:  Since I didn't go to all that work just to make the neighborhood cats happy,  I started planting once I had carefully reflected on what I wanted and what would work based on the size of the space and the light.  The old thuya bed is the sunniest part of the garden so it seemed to me the right place to put my potager (vegetable garden).    I started with the trees:  a peach, two apples and a fig.  The last was given to me by my neighbor as a "welcome to the neighborhood" gift.  I was so grateful that when I bought the other trees at Truffaut's I chose les arbres fruitiers en espalier (espalier fruit trees) that I will train along our common fence.  Very pretty and this way I won't ruin the light in her garden.  Then I planted lettuce and sweet peas.  The lettuce is already up.  As for the rest of the bed, the plan is to put in beans, tomatoes and pumpkins.  The tomatoes are already up in a little portable plastic greenhouse sitting in the living room.  My spouse came home, saw it, raised eyebrows, opened mouth, shut mouth and prudently let it go.  After 23 years of marriage, he knows better than to get between a woman and her seedlings.

Pot Rehabilitation:  No, I'm not talking about cannabis, I'm talking about those old lovely terra cotta pots for flowers and small trees.  The previous owner had tons of them scattered all over the garden (I'm still finding them under hedges) and on the patios.  With such bounty there was no way I was going to throw them out even though they looked terrible (plus I'm really really cheap and I won't pay to replace something I had the good fortune to get for free).  The inexpensive easy trick to making them look like new is vinager.  Just pitch them into a bucket with vinager and water and let them soak overnight.  In the morning throw them in the dishwasher.  I'm about halfway done and there is something so satisfying in seeing the growing pile of pretty pots on the back porch.

Compost:  Another source of marital discord over the years.  I believe in compost much like I believe in the Virgin Mary.  It's a mystery to me how it all works but I just know that it does.  When all I've had is a few pots on a balcony I've thrown the kitchen waste in them and when I finally had a small garden in our ground floor apartment on the avenue de Paris I made small trenches in the beds with the worst soil and put the kitchen waste in them covered with a thin layer of dirt.  Within a year the soil was better.  Within two it started to be fantastic.  My French spouse did not agree with my methods and he was convinced that I would be denounced to the garbage police and shamed and fined.  Never happened because it didn't smell and I didn't put anything in there that would attract pests.

With the new garden I actually have room for a real tas de compost (compost pile).  In fact the previous owners already had one in the back next to the lilac and behind the forsythia.  It's pretty basic and made of concrete but it's a start.  And to be absolutely certain that I do not continue with my evil ways, my spouse sent me off to compost class.  Part of a local initiative called Opération compostage, it was one hour well spent last night at city hall.  At the end I was given a brochure, a little plastic pot with a lid for the kitchen (complete with sticker explaining what I can and can't compost) and, once I signed the CONVENTION DE PARTENARIAT POUR LE COMPOSTAGE EN HABITAT INDIVIDUEL, a pretty little wood compost bin that we loaded into the car and took home.  All free though I did agree in the convention I signed to submit to controls over my compost.  Imagine my spouse's relief.

All this is just the beginning - the basics.  I'm thinking more fruit trees (dwarfs) and a little pond next to the back patio for growing water lilies.  The pots once I get them all cleaned up and planted will go in the front all along and around the stairs.  I'm also contemplating a pair of small fountains on the front patio - get a little water action going there.  And more roses everywhere - you just can't have too many roses, right?

All this is wonderful for my morale.  I believe that gardens are magical places where wonderful things happen.  Every morning I get up and walk my garden to see what new delightful thing is coming up or budding or blooming.  Nothing is more soothing to me than digging in the dirt or just watching the sun as it illuminates the different areas of the garden during the day.  It is miraculous.  I do not know what the next year will bring but I plan to spend as much of it as I can watching living things grow and lending a light hand to help them along.  Because I believe this with all my heart:

"Where you tend a rose, my lad, A thistle cannot grow.”
Frances Hodgson Burnett, The Secret Garden