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.
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).
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.
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.
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.
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.
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.