Professor Steve Peers, Royal Holloway University of London
Photo credit: JLogan, via Wikimedia
commons
Although the Commission and European Parliament seek
to improve the legal status of long-term non-EU residents in the EU, the
Council seeks to make them (on the whole) worse off, particularly in terms of getting EU long-term residence status in the first place. This is the position
following the recent Council
agreement on Member States’ position on the Commission proposal for a Directive on the issue, dating
back to May 2022 (see also the European
Parliament position from spring 2023), which would replace the current Directive on this issue dating from 2003
(that law was previously amended in 2010 to extend it to those
with refugee or subsidiary protection status).
The Council and the European Parliament will now
start negotiations to determine the final text of the revised law (if they can
agree at all). Timing is tight if they aim to agree it before the next European
Parliament elections (the Parliament’s final session before the elections is in
April 2024).
I previously commented on the 2022 proposal in two blog posts: a first part on the changes to the scope and conditions for obtaining long-term resident status in a first Member State, and a second part on the proposals to change the rules on long-term resident non-EU citizens moving to other Member States. (This blog post draws upon and updates some of the text of those previous blog posts; I have highlighted the changes in the Council version of the various parts of the proposal, by the words ‘Council version’ in bold and underline).
British readers might also be interested in my earlier discussion of specific issues around the application of the current law to British citizens here, although they will also find a little bit of Anglo action in this blog post. (Note that Denmark and Ireland have an opt out; and although the UK had also opted out of the current law while it was a Member State, ironically it is more relevant to Brits post-Brexit, in their new role as non-EU citizens).
The following comments are based on the text as
agreed by Member States on November 23rd, which I have seen,
although this is not yet public. But a previous
public version of the text is very similar. I will update this blog post
when the agreed text becomes public.
Personal scope: who is covered?
The current law on EU long-term resident (LTR)
status excludes from its scope: students; people who have obtained or applied
for temporary protection or a purely national form of protection;
asylum-seekers; those who reside ‘solely on temporary grounds such as au pair
or seasonal worker, or as workers posted by a service provider for the purposes
of cross-border provision of services, or as cross-border providers of services
or in cases where their residence permit has been formally limited’; and
diplomats as defined by the relevant international treaties. As a result of
Brexit, British citizens in the EU implicitly moved within the scope of the EU
LTR law once their EU citizenship ceased due to Brexit. (The CJEU has confirmed
this loss of EU citizenship).
The Council version has accepted the
Commission’s proposal to drop the exclusion of those whose ‘residence permit
has been formally limited’, on the grounds of imprecision: according to the
Commission proposal’s explanatory memorandum, ‘its interpretation led to legal
uncertainty in the transposition and implementation by Member States’. Indeed,
the relevant CJEU case law (Singh) is rather vague – establishing that
the ‘formally limited’ exception is different from the ‘temporary grounds’
exception and has a common EU meaning, but not clearly explaining what that
common meaning is.
The rest of the exclusions remain intact, and the Council
version seeks to exclude more groups explicitly: intra-corporate transferees
and those whose expulsion is suspended, and adding ‘job search’ as an example
of a group excluded by the ‘temporary grounds’ exception. (Note that the CJEU has
ruled
that this exception does not exclude non-EU family members of EU citizens who
have not left their Member State of nationality – a group known
to EU lawyers as Zambrano cases – from the scope of the EU Directive).
These exclusions are obviously important in
particular to millions who fled the Russian invasion of Ukraine and obtained
temporary protection in the EU (see discussion of EU temporary protection for
them here). However, as discussed next, this is not
quite the end of the story: there is an issue of whether and how to consider
the time spent on the territory as part of an excluded group, if the person concerned
is subsequently allowed to stay on a basis which is not excluded from
the scope of the Directive.
Obtaining the long-term residence
right
The five year waiting period
The current law requires Member States to grant EU
long-term residence status to non-EU citizens ‘who have resided legally and
continuously’ on the territory for five years before submitting an application.
It is necessary to apply in order for the status in order to obtain it (see Iida): unlike status under free movement
law, EU LTR status for non-EU citizens is not conferred automatically once the
conditions are met. There are currently no exclusions from the five-year
waiting period for family members (see the Tahir case). The 2022 proposal
retains the five-year rule, although a new review clause would require the
Commission to report two years after the deadline to apply the new law on the
prospects of shortening the waiting period, and there would be an exception for
some family members as well as a shorter waiting period following a move to
another Member State, both discussed below. (The Council version has
accepted the changes on future reports and second Member States, but – spoiler!
– rejected the change on family members).
There are some further rules about calculation of
this five-year time period. For those excluded from the scope of the current
law, it provides that no account should be taken of time spent on the territory
under the temporary grounds/formally limited exception, or as a diplomat. Half
the period spent as a student must be taken into account, if the student goes
on to obtain a different residence permit which can qualify for LTR status.
Similarly, if an asylum-seeker obtains refugee or subsidiary protection status,
at least half the time spent as an asylum-seeker must be taken into account; if
the asylum-seeker had to wait more than 18 months after the application was
lodged to obtain either form of international protection, all that
time counts. The text is silent on how to count time spent on the territory for
people who have obtained or applied for temporary protection or a purely
national form of protection.
Those with refugee or subsidiary protection status
that has been revoked, ended or was not renewed under the terms of EU asylum
law cannot qualify for EU LTR status. Finally, as regards absences from the
territory during the five-year qualification period, those absences still count
towards the five-year period if they are ‘shorter than six consecutive months
and do not exceed in total 10 months within’ the five years. Member
States may also count longer absences if their national law
provides, for ‘specific or exceptional reasons of a temporary nature’, although
they have to stop the clock during these longer absences (unless the longer
absences are due to ‘secondment for employment purposes, including the
provision of cross-border services’, in which case they may count the longer
absence fully if they wish).
The 2022 proposal would make four changes to these
rules. First, there would be a new general requirement to monitor the stay of
non-EU citizens before the five year period, in particular those who got their
residence permit on the basis of investment. The Council version
includes a vaguer version of this clause, with no specific reference to
investment.
Secondly, there would be a new right to cumulate residence
in multiple Member States, provided that the last two years before the application
for LTR status were spent in the Member State where the application is made.
This builds on existing possibilities in EU law for cumulation of residence for
select groups of non-EU citizens (for Blue Card holders, ie highly skilled workers
admitted under an EU scheme). However, Member States would have to exclude
counting time spent in another Member State by a non-EU citizen who obtained a
residence permit due to investment in a different Member State.
The Council version has accepted the cumulation
right in principle, but has curtailed it significantly. It would require the
last three years to be spent in the Member State of application, and
would only allow a total of two years in another Member State to be cumulated.
Most significantly, the right would only apply to selected groups: Blue Card
holders; holders of national residence permits for highly-skilled
workers, if they were allowed to move between Member States; intra-corporate
transferees and researchers as defined by EU law; and family members of any of
these groups, or of long-term residents themselves. The preamble vaguely
suggests that EU citizens’ non-EU family members could cumulate time periods in
multiple Member States too; but the details of this should really be placed in
the main text. There is also a vague preambular clause on British citizens,
saying that time spent under free movement law and the withdrawal agreement should
be cumulated; again it is not clear if the free movement law point applies to
multiple Member States. Anyway including Blue Card holders is a Potemkin
village: the revised Blue Card Directive already contains essentially more
generous rules on this issue for them. Also, the Council version would
defer the actual application in practice of the cumulation rules, until the
Commission and Council had worked out the logistics of cumulation.
Thirdly, in the 2022 proposal, the rules on
counting five years’ residence would change for those who previously resided on
the basis of a status excluded from the scope of the LTR law. It would be explicit
that ‘[a]ny period of residence spent as a holder of a long-stay visa or
residence permit issued under Union or national law, including’ periods spent
on the basis of temporary or national protection, as a student, or on a
temporary basis, counts towards the five year period, as long as a more
long-lasting form of residence status has been obtained later. This would definitely
improve the position of those who previously resided as students or on a
temporary basis, and arguably confirm the existing position of those with temporary
or national protection – potentially important for millions of temporary protection
beneficiaries, among many other groups of people. However, the current rule of
taking into account only [at least] half the period spent as an asylum-seeker
(or all of the period if it takes 18 months to get refugee or subsidiary
protection status) would be retained.
The Council version of this is mostly
much more restrictive. Previous time on the territory as one of the excluded
groups of people, in the event of being allowed to stay on a more permanent
basis afterward, would only count for intra-corporate transferees; it
would only be an option to count it as regards former students. Implicitly
it would not be possible for the other groups. This definitely reduces standards
as compared to the current law for students, and arguably for temporary
protection beneficiaries too.
On the other hand, the Council version
would improve the position for refugees and subsidiary protection
beneficiaries, copying an agreement reached during negotiations on asylum law.
All the time previously spent as an asylum-seeker would count, although if beneficiaries
of international protection were on the territory of another Member State
without authorisation, the clock would be reset and they would have to start
accumulating five years’ residence from scratch, unless they were in that second
Member State due to circumstances outside their control.
Finally, a new clause on family members, discussed
further below, would allow for the right to LTR status for the children of EU
LTRs who are born or adopted on the territory of the Member State which granted
the LTR permit, without waiting for the five-year period. An application for
LTR status would still be necessary. However, the Council version refused
to accept this; although it is possible to adopt ‘more favourable provisions’
for the family members concerned as an option, it is not clear if that can
extend to obtaining LTR status early.
Other conditions
First of all, the EU LTR law requires Member States
to ensure that non-EU citizens have ‘stable and regular resources’ and
‘sickness insurance’ in order to obtain LTR status. The ‘resources’ requirement
is further defined; such resources must be:
…sufficient to maintain
himself/herself and the members of his/her family, without recourse to the
social assistance system of the Member State concerned. Member States shall
evaluate these resources by reference to their nature and regularity and may
take into account the level of minimum wages and pensions prior to the
application for long-term resident status;
The current law defines the ‘sickness insurance’
requirement to cover ‘all risks normally covered for his/her own nationals in
the Member State concerned’.
In the 2022 proposal, the sickness insurance
requirement would not be modified as such, but the resources requirement would
be amended to state that the resources can be ‘also made available by a third
party’, and that ‘Member States may indicate a certain sum as a reference
amount, but they may not impose a minimum income level, below which all
applications for EU long-term resident status would be refused, irrespective of
an actual examination of the situation of each applicant.’ (There would also be
new rules on comparison with applications for national LTR status, what happens
if an applicant already has national LTR status, and an exemption for certain
family members; these issues are discussed further below).
The first of these amendments reflects the CJEU
case law on the resources requirement. In the X judgment,
the Court ruled that the resources rule was an autonomous rule of EU law, not
defined by national law, and that the resources could be provided by third
parties (in that case, a brother of the applicant for LTR status). It was
nevertheless important that the resources be ‘stable’ and ‘regular’, as the EU
law requires; in that context, the relationship with the family member, and
whether the support was based on a legal requirement, could be
relevant.
However, the Council version would
again reduce standards below the level of the current law, as interpreted by
the CJEU; the (qualified) obligation to take account of the resources supplied
by third parties (such as family members) would only be an option for
Member States.
In the current law, Member States also have an
option to require compliance with ‘integration conditions’ in order to obtain
EU LTR status. The 2022 proposal would not alter this optional obligation
(except as regards comparison with rules for national LTR status and exemptions
for family members, both discussed below). There is CJEU case law that
indirectly addresses these requirements: P and S, discussed here, in which the Court ruled that an
integration requirement imposed after getting LTR status was
acceptable, subject to being proportionate. The Council’s position
would alter the current law by stating that integration conditions may in particular
concern learning the national language of the Member State; but this reflects
how integration conditions are applied in practice anyway. (The preamble of the
2022 proposal also refers to language acquisition).
Next, Member States may reject applications on
grounds of public policy and public security, subject to the requirement that:
When taking the relevant decision,
the Member State shall consider the severity or type of offence against public
policy or public security, or the danger that emanates from the person
concerned, while also having proper regard to the duration of residence and to
the existence of links with the country of residence
The 2022 proposal would make no change to this
provision. Note that it has been the subject of case law: the CJEU ruled in 2020 that a prior criminal
conviction cannot automatically exclude a non-EU citizen from obtaining EU LTR
status; there must be a ‘specific assessment’ of each applicant, taking into
account the offence committed, the degree of risk to public policy and
security, the length of residence and the strength of links with that
State.
Finally, the 2022 proposal would delete an odd
provision in the current law, which states that in the process of applying for
LTR status, the evidence submitted to show that the non-EU citizen meets the
conditions to obtain LTR status ‘may also include documentation with regard to
appropriate accommodation’. It is not clear if this allows Member States to
impose a further requirement for the applicant to show that he or she has
adequate accommodation; but if the clause is deleted, the point is moot. But
the Council version would retain it, clarifying it to state that
the evidence regarding accommodation would be part of the assessment of the
resources requirement.
The application process and
procedural rights
The 2022 proposal would retain the current rule
that a Member State should decide on an application for EU LTR status within
six months. However, the possibility of extensions in ‘exceptional’ cases would
be dropped, replaced by a clause providing for the authorities to request
further information if they need clarification relating to an application.
There would be a new rule for those who already have national LTR status
(discussed further below). The Council version would keep the
possibility of exceptional extensions, albeit limiting it to a 60-day maximum.
As for procedural guarantees, the current law
requires reasons to be given for refusing applications or withdrawing status,
notification of decisions (specifying redress procedures and time limits), and
the right to ‘mount a legal challenge’ to rejections of applications, or
withdrawals, loss or non-renewal of EU LTR status.
There would be an ostensibly new rule on fees,
providing that while Member States may require fees for handling applications
for EU LTR status, those fees ‘shall not be disproportionate or excessive’. In
fact this reflects CJEU case law (see Commission v Netherlands and CGIL and INCA).
As regards both fees and procedural guarantees
(including time limits to decide on applications), Member States would have to
extend any more favourable treatment which they accord to holders of or
applicants for national LTR status to applicants for or holders of EU LTR
status (see further below). However, the Council version would
drop this requirement as regards time limits.
Equal treatment rights
The current law provides that EU LTRs are entitled
to equal treatment with nationals as regards: access to employment and
self-employment (with an exception for activities involving ‘public
authority’); working conditions; education and vocational training, including
study grants; recognition of professional qualifications; social security,
social assistance and social protection, as defined by national law; tax
benefits; access to goods and services, including procedures for obtaining
housing; freedom of association; and access to the territory of the Member
State granting LTR status. However, Member States can impose a residence
condition for the LTR or his/her family members for some aspects of equal
treatment. They can also limit access to employment or self-employment where
existing rules only give access to EU citizens, and impose language or
educational requirements as regards access to education. Moreover, they can
limit access to social assistance and social protection to ‘core benefits’. The
equal treatment rules are ‘without prejudice’ to EU asylum law, as regards
refugees and people with subsidiary protection (and their family members); and
Member States have the right to set higher standards.
The new proposal would amend the equal treatment
rules to: define social security by reference to EU law; add
access to private housing; drop the possibility of a residence condition for
family members; eliminate the ‘core benefits’ exception; provide for benefits
if an LTR moves to a non-EU country; and require the extension of any more
favourable national rules for national LTRs to those holding EU LTR status. The
Council version rejects the proposals as regards private housing
or residence conditions for family members, but accepts the others.
This should be seen in light of the CJEU case law
on the equal treatment clause, which has: limited the use of the ‘core
benefits’ clause (Kamberaj, which interpreted the exception
strictly in light of the EU Charter of Fundamental Rights and said that it
could not be used to exclude equal treatment for housing benefit, or apply if a
Member State had not declared its intention to use it; see also the KV judgment); provided for family
members to get benefits despite not being resident (INPS, where the Court again also adds a
condition of the Member State expressing its intention to use the exception);
and ruled that a lack of equal treatment as regards a family discount card is
in breach of the requirement of non-discrimination for access to goods and
services (ASGI, again referring to the condition of
a Member State stating an intention to derogate).
Loss of status and expulsion
The current law requires Member States to remove
LTR status in the event of its ‘fraudulent acquisition’, following an expulsion
measure, or due to absence from EU territory of 12 months. But Member States
have an option to allow longer absences in general, or for ‘specific or
exceptional reasons’. There is an option to remove LTR status where the person
concerned is a ‘threat to public policy’ that falls short of the grounds for
expulsion. Member States may also withdraw LTR status for people who have lost
international protection status in accordance with EU asylum law. LTR status in
one Member State is also lost once another Member State has granted it, or
after six years’ absence from a single Member State’s territory; a Member State
may allow such LTR status to stay after six years’ absence for ‘specific
reasons’. Where LTR status is lost due to absence, a Member State
must provide a facilitated procedure to get it back, ‘in particular’ for those
who moved to another Member State to study; the process and details of this are
left to national law. If LTR status is lost but the former LTR is not removed,
a Member State must allow the former LTR to stay if they meet the conditions to
stay under national law (on which, see the 2019 YZ judgment).
The 2022 proposal would change these rules to refer
to a ‘decision ending the legal stay’ instead of expulsion or removal (to match
the wording of the EU Returns Directive), and allow an absence from
the EU of 24 months, not 12. However, the option to permit longer absences than
that would be limited to cases of ‘specific or exceptional reasons’. The
facilitated process to get LTR status back would no longer be left to national
law; there would be a mandatory exemption from integration requirements and
optional exemptions from the waiting period and resources and sickness
insurance conditions. (The Council version would set a three-year
time limit on the mandatory exemption from integration requirements)
Note that a recent judgment of the CJEU,
discussed here, interpreted the 12-month absence rule
generously, providing that a return for a few days during that period could
interrupt the absence and so start the clock on the 12-month period anew.
Presumably that would apply equally to the longer 24-month period of absence
now being proposed. On the other hand, the YZ judgment was
less generous as regards fraud, ruling that LTR status could be lost even if
the applicant was unaware that the documentation was fraudulent.
Again, the Council version would be (overall)
less generous than the current law, as interpreted by the CJEU. Its version would
provide for the loss of LTR status in the event of not having the ‘main residence’
in the EU, either for 18 consecutive months, or for 18 cumulative months in one
of the five year periods since the LTR permit was first granted. Member States
would have an option to be more generous. And current standards would also be
lowered by making it mandatory to remove LTR status where the person
concerned is a ‘threat to public policy’ that falls short of the grounds for
expulsion.
As for expulsion, the current law provides that
Member States can ‘solely’ expel an EU LTR where there is ‘an actual and
sufficiently serious threat to public policy or public security’. This decision
‘shall not be founded on economic considerations’, and Member States must
consider the duration of residence, the age of the LTR, the consequences for
the LTR and family members, and the links with the Member State and the country
of origin. There must be judicial redress against expulsion, legal aid must be
granted ‘on the same terms’ as nationals, and there are special rules if the
LTR has international protection.
The 2022 proposal would amend these rules only as
regards cross-references to the Returns Directive. CJEU case law is relevant
here: the Court has confirmed that a criminal conviction is not sufficient by
itself to justify expulsion, but that the various factors listed in the law
must be fully taken into account (Lopez Pastuzano, discussed here; WT; see also Ziebell).
Family members
A wholly new clause in the 2022 proposal contains a
number of special rules for family members. First, children of EU LTRs born or
adopted in the territory could obtain LTR status immediately following an
application, waiving the waiting period and the resources, sickness insurance
and integration rules. Second, family members of EU LTRs would only have to
comply with integration requirements in the family reunion Directive after family
reunion has been granted. Third, the application of EU LTRs’ family members would
be fast-tracked, and they would benefit from some of the procedural rights in
the proposed LTR law. Next, family members of EU LTRs would be exempt from
labour market tests as regards access to employment. Finally, any more
favourable rules for family members of national LTRs relating to these issues
must be extended to family members of EU LTRs.
The Council version would gut almost
all of this part of the proposal. There would be no early or simplified acquisition
of LTR status for those born or adopted on the territory – only residence
permits issued on the same basis as family members who were admitted from
another country. There would be no deferral of integration requirements until after
family reunion was granted, and no equal treatment as regards family members. The
time limit to decide on applications would be cut from nine months to six
months, but not 90 days as the Commission proposed. Only the immediate access
of family members to the labour market remains unscathed.
Relationship with national LTR status
A key feature of the existing and proposed EU LTR
law is that the EU law does not fully harmonise national law on LTR status: it
sits in parallel to it. Under the current law, Member States may still issue
national LTR permits on a ‘more favourable basis’ than the EU rules; but such
permits do not confer the right to move to other Member
States, as confirmed by the CJEU in the Tahir case.
Under the proposal, the capacity to issue national
long-term residence permits is retained, but the reference to ‘more favourable
conditions’ for them would be dropped. This is because the proposal would
require non-discrimination between national law on LTR status and EU LTR status
in a number of areas. (This approach to the relationship between EU and
national immigration law was pioneered in the recent revision of the Blue Card
directive for highly-skilled workers: see discussion here).
In particular, Member States would have to extend
to applicants for EU LTR status any more favourable rules relating to applicants
for national LTR status as regards resources, integration conditions,
procedural guarantees (including time limits to decide on applications), fees
for applications, equal treatment, and family members. The Council version
only accepts some of this, though: it would retain only equal treatment as regards
procedures (but not time limits), fees, and equal treatment.
A separate issue is the relationship between
national and EU LTR status. Can both types of status be held, or do non-EU
citizens have to choose between one or the other? The current law is not
explicit on this issue – and neither is the 2022 proposal. Member States have
interpreted it differently in practice, and the case law has not addressed the
point yet.
The 2022 proposal addresses the link between the
two from a different angle, providing that if an applicant for an EU LTR status
already has a national LTR status, the applicant is exempt from the conditions
of resources, sickness insurance and integration, provided that ‘compliance
with those conditions was already verified in the context of the application
for the national residence permit’. But this does not tell us whether the
application for EU status can come in addition to national LTR status, or must
be a replacement for national status, or whether Member States can choose which
of those two approaches they prefer. (It does necessarily mean that holding
national LTR status cannot rule out applying for EU LTR status in future). In
any event, the Council version of this clause weakens it considerably,
providing that Member States only have an option not to require the
application of the resources and sickness insurance requirements in such cases;
and there is no provision to drop the integration condition.
Movement between Member States
The current law provides that EU LTRs can move to
other Member States on grounds of ‘exercise of an economic activity in an
employed or self-employed capacity’, ‘pursuit of studies or vocational
training’ or ‘other purposes’. The 2022 proposal retains this basic clause.
However, the current law allows for limits on the
right. Member States can apply a labour market or preference test for those EU
LTRs who move for the purposes of employment or self-employment. They can also
retain pre-existing quotas on the number of non-EU citizens who move to their
territory. The 2022 proposal would delete both of these limits; but the Council
version would retain the possible labour market or preference test.
Some groups of workers are excluded from the scope
of the current (and proposed) law: EU LTRs posted by their employer to perform
services, or who provide services themselves; those moving as seasonal workers
(Member States can decide the conditions for this group under their national
law); and cross-border workers (who can similarly be ‘subject to specific
provisions of national law’).
Conditions for moving
The EU LTR has to apply for a residence permit in
the second Member State within three months of arrival. Under the current law,
each Member State has an option to consider applications made while the LTR is
still living in the first Member State; the proposed law would require Member
States to consider such applications. The Council version would keep
this as an option only.
The second Member State may require
‘stable and regular resources’ and sickness insurance as a condition for the
LTR to get a residence permit there. This differs from the obligation for
the first Member State to impose such requirements before LTR status is
obtained there (as discussed further in the first blog post). The wording of
these conditions is otherwise currently identical to the wording which applies
to the conditions to get LTR status in the first Member State.
The 2022 proposal adds that the resources can be
‘also made available by a third party’, which matches the proposed amendment to
the conditions for getting LTR status in the first Member State, which takes
account of the case law on the latter point. However, the 2022 proposal
does not match the proposal to add other new wording to the
conditions for getting LTR status in the first Member State, on use of a
reference amount, but not a minimum income level which applies automatically.
The Council version would add this wording, and also drop the proposed
requirement to consider third party resources.
The second Member State has an option to require an
LTR to comply with integration measures before getting a
residence permit. The wording here is different from the rules on getting LTR
status in the first Member State, where the law refers to an option to require
compliance with integration conditions. The second Member State
cannot require compliance with integration measures if the LTR has already
complied with integration conditions in the first Member State. However, the Council
version would yet again reduce standards compared to the current law,
by dropping this limit on Member States.
Member States may require documentation as regards
employment (ie some form of proof of being hired), self-employment (a funding
requirement), or studies. The 2022 proposal would delete an unclear reference
to providing evidence of accommodation, matching a deletion of the similarly
unclear clause relating to applying for LTR status in the first Member State.
The Council version would retain the clause on accommodation.
New provisions in the 2022 proposal would address
two important points: EU LTRs would have equal treatment with EU citizens as
regards recognition of professional qualifications; and an EU LTR must be
allowed to start work or study in the second Member State no more than 30 days
after submitting a complete application for a residence permit. But the Council
version would only provide an option for Member States to let the LTR
begin work after submitting an application.
Family members
Core family members who already lived with the EU
LTR in the first Member State must be admitted to the second Member State.
Extended family members may be admitted. If the family members
did not already live with the EU LTR in the first Member State, the EU’s family reunion Directive applies. The Council
version would drop the obligation in the 2022 proposal to consider
third party resources when assessing their applications.
A separate new provision on family members in the
2022 proposal would allow them, when applying for an ‘autonomous residence
permit’ from the sponsor they are joining under the family reunion Directive,
to cumulate residence in different Member States, as long as the last two years
were spent in the second Member State. But the Council version
would drop this.
Exceptions: public policy, public security
and public health
The second Member State has an option to refuse the
LTR a residence permit on grounds of public policy or public security. As with
the conditions for getting LTR status in the first Member State, the second
Member State must assess the severity and type of offence committed by the
person concerned; but conversely there is no requirement to assess the duration
of residence or links with the country of origin, and no rule against founding
a refusal on ‘economic considerations’.
As for public health, the 2022 proposal (also accepted
in the Council version) would replace the current law with a
cross-reference to the Schengen Borders Code, which defines a ‘threat to public
health’ slightly differently, as:
any disease with epidemic potential
as defined by the International Health Regulations of the World Health
Organization and other infectious diseases or contagious parasitic diseases if
they are the subject of protection provisions applying to nationals of the
Member States.
Procedural rights
Currently national authorities in the second Member
State must make a decision on the LTR’s application for a residence permit
within four months. If the documentation is incomplete, or in ‘exceptional
circumstances’ due to the complexity of the application, they have a further
three months. The 2022 proposal would cut these deadlines to 90 days and 30
days respectively; but the Council version would set them at four
months and 60 days.
Otherwise procedural rights are very similar to
those applicable when applying for LTR status in the first Member State: giving
reasons; notification; information on redress and time limits to seek it. But
this only applies to rejection of applications, not to withdrawal of status.
There is a right of legal redress in the case of rejection, withdrawal or
non-renewal. However, there is no reference to equal treatment as compared to
applicants for residence permits under national law, and no express reference
to fees, although the CJEU case law has confirmed that any fees for residence
permit applications in the second Member State must be proportionate: Commission v Netherlands.
Equal treatment
The second Member State must guarantee equal
treatment for the LTR who has moved there, once the LTR has received a
residence permit, by cross-reference to the rules on equal treatment of LTRs in
the first Member State (see discussion above). So the case law applicable to
that equal treatment rule, and the proposed amendments to that rule (if agreed)
necessarily apply in the second Member State too. The 2022 proposal would
extend this to family members of the LTR, replacing a cross-reference to the
weaker provisions of the family reunion Directive. It would also delete the
power for Member States to limit changes of employer by LTRs in the first year.
(There would be an option for Member States to impose an obligation to notify changes
of employer instead). However, Member States would still have discretion to
limit access to employment or self-employment by students or those who move for
other reasons. The Council version would drop both proposed
amendments.
Withdrawal or loss of status
Before the LTR obtains LTR status in the second
Member State, that Member State can expel the person concerned to the second
Member State for breaching the conditions set out in EU law for holding the
residence permit there (as discussed above). The first Member State must take
that person back. Under the 2022 proposal, references to national law are
replaced by references to the EU’s Returns Directive instead. Also, the
option for the second Member State to expel the non-EU citizen from the EU
entirely on ‘serious grounds of public policy or public security’ would be
removed. The Council version agrees with these amendments.
Obtaining LTR status in the second
Member State
Under the current law, the LTR who has moved to the
second Member State can obtain LTR status in that Member State, subject to all
the same conditions and procedural rules that apply to obtaining LTR status in
the first Member State. Therefore all the case law on the latter rules, and all
the proposed amendments to them (if agreed) necessarily apply too.
The 2022 proposal suggests speeding up this
process, allowing the LTR to get LTR status from the second Member State after
only a three-year wait, instead of the usual five years. However, before the
five-year period, the second Member State is not obliged to grant ‘social
assistance, or maintenance aid for studies, including vocational training,
consisting in student grants or student loans’ to LTRs other than ‘workers,
self-employed persons, and their family members’. A Member State can opt to be
more generous, on condition that it is also more generous to EU citizens in the
same circumstances. But Member States could also opt to end the stay of LTRs
who are workers or self-employed people between three and five years if they
cease to satisfy the ‘sufficient resources’ or ‘comprehensive sickness
insurance’ requirement. Remarkably the Council version accepts
this reduction in the usual five-year waiting period.
Finally, while refugees and those with subsidiary
protection are entitled to qualify for EU LTR status and move to another Member
State, and there are some provisions relevant to their particular situation,
neither the current law nor the 2022 proposal provides for the transfer of
their international protection status.
Comments
The Commission’s proposal would have opened up EU
LTR status to more people, making it harder to lose and giving holders more
rights. The European Parliament position (which I have not discussed here) goes
further on these points. But the Council position not only rejects most of the
Commission’s (and necessarily the Parliament’s) proposals; on the whole, it
actually goes backwards compared to the current law.
In particular, the Council would take rights
away as regards: exclusion of further groups of people (although arguably
they are just specific examples of the current ‘temporary grounds’ exception); former
students and (arguably) former temporary protection beneficiaries obtaining LTR
status; taking account of third parties’ contribution to resources (arguably a
reduction of rights also when moving between Member States); adding a ‘main
residence’ requirement to retain LTR status in the event of absence; and
allowing Member States to require compliance with integration standards again
when moving to another Member State.
The Council would reject improvements
as regards: cumulation of residence in multiple Member States for most people; former
students and former ‘temporary grounds’ residents obtaining LTR status;
extensions to the period to decide on an application (although they would be
limited in time); equivalence in time limits with national LTR status; some improvements
to the equal treatment rules; family members obtaining LTR status early, delaying
integration requirements, or equality with national LTR children; the accommodation
requirement (including in second Member States); equality with national LTR
applications as regards resources, sickness insurance, and integration requirements;
simplified EU LTR applications for those who already have national status
(except for purely optional simplifications); dropping labour market or preference
requirements for moving between Member States; simplification of applications
to move to another Member State; starting work or study early in another Member
State; family members cumulating residence in different Member States to obtain
autonomous residence; (most of) the reduced time limits to decide on
applications for LTRs to obtain residence permits in a second Member State; and
improvements to equal treatment in a second Member State .
Finally, the Council would admittedly accept improvements
as regards: dropping the ‘formally limited’ exception; allowing cumulation of
residence in multiple Member States for some people (although this is not an
improvement for most Blue Card holders); refugees and people with subsidiary
protection obtaining LTR status; some aspects of the equal treatment rules;
facilitated access to reacquisition of LTR status (with limits); family members’
labour market access; equality with national LTR applications as regards procedures,
fees, and equal treatment; dropping quotas on movement to another Member State;
expulsion out of the EU from a second Member State; and a shorter waiting period
to obtain LTR status in the second Member State.
The biggest of these three lists is of proposed
improvements which the Council has rejected. While the length of this list is a
disappointment, from the perspective of the EU’s stated goals of improving equality
and integration, at least (potential) long-term residents are no worse off than
they are at the moment.
The other two lists – new rights the Council has
agreed to, and existing rights the Council would remove – may look similar in quantity.
But they are not qualitatively similar. For the key rights the Council
would remove concern how soon people can become long-term residents in the
first place, potentially in practice even preventing them from becoming LTRs at
all (depending on the length of their subsequent legal stay on other grounds).
The removal of rights which the Council desires would also make it easier to lose
LTR rights and harder to obtain them in a second Member State.
Of course, it is possible that the European
Parliament may ride to the rescue during trilogue negotiations. But will it? The
Council may reject any attempt to improve current standards, considering the loss
of its desires to reduce those standards an acceptable price to pay as long as
standards are not improved. Or the Parliament may be willing to agree to reduce
its ambitions, or even reduce current standards, given its desire to agree laws
in this field before its next election, in order to avoid the next Parliament,
in the event of a shift to the right in the next elections, agreeing with the
Council’s more restrictive views – or even pushing the Council towards trashing
even more of the current Directive. As with EU asylum law, the European
Parliament is haunted by the Ghost of Parliament Future.
See also
