Italian Court of Cassation: Vos Thalassa judgment acquits migrants who resisted return to Libya

 

Yasha Maccanico, Statewatch

 

Photo credit: Sergio D'Afflitto, via Wikimedia commons  

 

In December 2021, the Italian Court of Cassation (CoC) quashed the convictions and three-and-a-half-year sentences handed on 3 June 2020 by the Palermo court of appeal (CoA) to two men (from Ghana and Sudan) deemed the ringleaders of a protest on board of the Vos Thalassa tug boat to stop their return to Libya in July 2018. A group of 67 migrants of various nationalities was rescued from a wooden boat in distress in international waters (in the Libyan SAR zone), as communicated to the Italian maritime rescue coordination centre (IMRCC) at 15:18 on 8 July. The Libyan authorities were informed, but did not reply, so the Vos Thalassa was ordered to head towards Lampedusa to meet a support vessel. At 22:00, the Libyan Coast Guard instructed the tug boat to head towards the African coast to transfer its passengers onto a Libyan vessel, so the Vos Thalassa accordingly changed its route. At 23:34, the captain called the IMRCC requesting that an Italian military vessel be sent due to a situation of danger for the crew, following resistance from the rescued people.

The CoC’s arguments (and those of the original judgment in Trapani it upheld) contradict the strategy adopted by the EU and Member States against irregularised migration in the central Mediterranean, based on returns to Libya. A note reported the CoC’s decision in December:

 

“the conduct of resisting a public officer by the migrant who, rescued in the high sea and in support of the right to non-refoulement, opposes a transfer back to the Libyan state, is decriminalised”.

 

Hence, the threat of torture and mistreatment faced by the rescued people if they returned to Libya trumped the acts of insubordination on board that occurred when people realised where they were heading. The notion of “legitimate defence” used by the defendants to justify their actions should have been subjected to closer scrutiny by the CoA. The original acquittal noted that jus cogens norms like the non-refoulement principle and the related prohibition of torture do not allow any exceptions. This also applies when there are inter-state cooperation agreements and memoranda of understanding (MoUs) in force, like the 2017 MoU between Italy and Libya, because they are subordinate to jus cogens international law.

 

The CoC’s judgment has now been published. Its decision to annul the convictions on appeal centres on the CoA’s reasoning, a need to offer a “reinforced motivation” to turn an acquittal into a conviction and inadequate engagement with the original judgment. Hence, a mere reinterpretation of the facts in the case drawn from a premise that the plaintiffs, Tijani Ibrahim Mirghani Bichara (from Sudan) and Amid Ibrahim (Ghanaian), and the group they were part of voluntarily placed themselves in a dangerous situation in complicity with traffickers, is not sufficient. This approach led to convictions for committing acts to irregularly enter Italian territory by an unspecified number of “illegal migrants” [above five, a threshold for aggravating circumstances to apply] of various nationalities, who were transferred to the Diciotti military boat as a result of their conduct, before disembarking in Trapani. Further, the survivor’s use of violence and threats (including death threats and possible suicide at sea) in association with others to oppose the Italian vessel Vos Thalassa’s crew and captain, led the latter not to fulfil their duty to transfer them to the Libyan coast guard, as instructed. 

 

The plaintiffs appealed their conviction on grounds including their designation as smugglers rather than passengers; a lack of hearings to review the decriminalisation of their conduct due to fear of return to Libya; a presumption that migrants placed themselves in danger to enter the EU illegally, perhaps after a rescue, to explain their resistance (rather than resistance to and fear of return to Libya); and that non-refoulement does not protect people’s wish to migrate as much as a subjective right recognised at the national and supranational levels. On points of law: “irregular entry” does not apply to people disembarked after sea rescues; people are shipwreck survivors rather than irregular migrants until rescue operations end, self-smuggling is not equivalent to smuggling, and a humanitarian decriminalisation norm [art.12(2) of the immigration act] applies to this case.

 

The second plaintiff raised issues including exclusion of the legitimate defence argument; a failure to take further testimonies; the notion that the acts in question were to enable arrival in Europe rather than to avoid return to Libya; a misreading regarding people voluntarily placing themselves in danger; misinterpretation of the risk posed by return to Libya despite available evidence; and the order to return the people on board to Libya, due to the right to be taken somewhere safe.

 

The CoC deemed such complaints founded. Despite states’ right to control their borders, guarantee security and punish smuggling and trafficking in human beings, human rights compel them to rescue people whose lives at sea are in danger, respect their fundamental rights and comply with the non-refoulement principle. The CoC reiterated the applicable legal framework and order of events on 8/9 July 2018, as presented in the original judgment, due to a need for “reinforced motivation” by the CoA to overturn acquittals that must address and convincingly refute the court’s findings. The judgment raised aspects including a ban on returns, refusal of entry and extradition if there is a risk of torture and/or degrading and inhuman treatment, the non-refoulement principle not admitting exceptions, also under art.10 of the Constitution (thus subordinating the Italy-Libya memorandum), Libya being unsafe and the concrete risk that caused the plaintiffs’ reaction on board.

 

The reinforced motivation doctrine is outlined by the CoC, including a need for exhaustive analysis of the original judgment, explanation of why it is not upheld, and the foundational reasons for the new decision. Reinterpretation of the same facts is inadequate, because errors in the first instance judgement’s assessment must be identified. The duty of rescue and to disembark people in a place of safety are established in international maritime law and in the International Maritime Organization’s (IMO) guidelines on the treatment of people rescued at sea.

 

The CoA should have addressed five points: a) people’s fundamental right to non-refoulement; b) definition of “place of safety”; c) what authority should have coordinated rescue operations; d) application of the 2017 Italy-Libya MoU; and e) the concrete risk of violating a subjective right. According to the CoC, these points were not adequately addressed and resolved. Regarding point e), a state’s duty rather than a personal subjective right was liable to be violated, according to the CoA, due to the plaintiffs and their fellow passengers having voluntarily placed themselves at risk to accomplish a migratory project. Regarding the “legitimate defence” argument (art. 52 of the code of penal procedure), the CoA lent weight to the idea that voluntarily giving rise to a condition of danger excludes its applicability. Hence the rebellion on board was not in defence of a subjective right, but rather, the final act of a preordained criminal conduct whose success was jeopardised by the Vos Thalassa following orders given by a competent authority to coordinate the rescue.

 

The CoC viewed this rationale as flawed, because the prosecuting magistrate had not doubted that the plaintiffs were not part of the smuggling ring or of the organisation of the crossing, nor was it clear what elements had resulted in this idea being deemed to have been proven, alongside having colluded with smugglers to “contrive a situation of need” [to be rescued]. The CoA was deemed to have mistaken the danger on which the legitimate defence argument was based – by drawing on an idea of voluntarily placing oneself at risk that applies in cases involving challenges, fights or duels, entirely different situations from the matter at hand. Further, the CoA assimilated the risk of sinking to the risk of return to Libya. At the time of the revolt, the first risk (shipwreck) had ended, unlike the second hypothesis which may have entailed “a risk of unfair prejudice”, the migrants’ right not to be returned to a place where they were liable to be tortured or experience degrading and inhuman treatment, thus legitimating their reaction.

 

Legal sources and jurisprudence were drawn upon to support the CoC’s view, including the Hirshi Jama’a et al vs. Italy judgment [ECtHR’s Grand Chamber, 2012] concerning returns to Libya by an Italian navy ship in 2009, the 1951 Geneva Convention, UN and regional human rights instruments and bodies, notes and reports from UNHCR, and the absolute nature of the ban on torture (art. 3 ECHR). Although this ban does not grant permission to enter a state’s territory, it does forbid returns to places where there is a reasonable risk that their fundamental rights may be violated, including to their “life, freedom and psycho-physical integrity”. This limit also applies in extraterritorial waters despite EU frontline states’ difficulty in dealing with flows of migrants and refugees, as the Hirshi Jama’a case established.

 

The next question was whether Libya was still unsafe in the summer of 2018, to verify which the Trapani court asked UNHCR, whose damning findings on this point were cited in its judgment. Despite Italy and Libya signing an MoU in May 2017 and moves to support Libyan security structures including through technical support and by developing its coastguard authority (provision of vessels), UNHCR continued to consider Libya unsafe and the Italian safe countries list adopted in October 2019 does not include the north African country. Beyond the validity of this MoU, doubted in the original judgment, its contents would nonetheless be “neutral” regarding the matter at hand, because Libya was not safe, which meant the return order should not have been issued, nor executed. Further, this order caused a real and present danger that endangered people’s fundamental rights, resulting from an unlawful conduct. The CoA is not deemed to have addressed these issues, and neither did it explain why people whose attitude had not been oppositional changed when they became aware of the situation. The CoA did not specify whether there was any alternative conduct the plaintiffs could have used to defend their rights, all the more so as they warned that they may have jumped into the sea to elude the risk they ran by drowning.

 

A mere description of the plaintiffs’ unlawful actions to confirm their violent and threatening nature was inadequate, according to the CoC. This was due to the “reinforced motivation” requirement, the failure to evaluate if the reaction resulted from the risk of being returned to Libya, to consider that some passengers expressed their willingness to drown to avoid that outcome and that criminal excesses like threats resulted from people’s desperation and a lack of available alternative courses of action. “Legitimate defence” to decriminalise their conduct would not have applied if the reaction had been disproportionate, but this was not the case, and the CoC also supported the original judgment’s finding that the plaintiffs and the other passengers had not colluded with traffickers.

 

Hence, the appeal judgment was annulled because the facts of the case did not amount to criminal conduct.   

Legal Certainty in the Preliminary Reference Procedure: The Role of Extra-Legal Steadying Factors (Elgar 2022)

 

John Cotter, Lecturer in Law, School of Law, Keele University

 

A quote most often attributed to Benjamin Franklin asserts that there is nothing certain in this world “except death and taxes”. If ‘certainty’ is to be understood in its absolute sense, the litigating lawyer attempting to forecast the outcome of a legal action might agree. There are indeed significant obstacles to ‘certainty’ for anyone charged with predicting courts. Some of these obstacles may arise from uncertainty within the rules themselves, caused by the limitations of language in communicating meaning (what I call, ‘legal obstacles’). Other obstacles may emerge from surrounding circumstances which may affect how the rules are chosen, understood, and applied to the case facts (‘extra-legal obstacles’). These extra-legal obstacles may arise from matters such as the idiosyncrasies of the individuals working with the rules, the vagaries of fact-finding, institutional pressures placed on decision-makers, or case-by-case variables like the quality of counsel.

 

These obstacles are arguably more formidable in the context of EU law. EU laws are translated into twenty-four official languages of equal value and are often the product of significant intergovernmental and inter-institutional compromise. The EU is also institutionally more complex than most national legal and political systems, which may expose the Court of Justice to more numerous competing, and perhaps less transparent, external pressures on its decision-making. The existence of such obstacles and their significance should be a cause for concern for a legal order like the EU’s that seeks to promote the uniformity and effectiveness of its laws throughout its multi-state territory. Legal certainty is a general principle of EU law and the Court of Justice has stated that “the effect of [EU] legislation must be clear and predictable for those who are subject to it” (Cases 212-17/80 Meridionale Industria Salumi and Others).

 

Given that Court of Justice rulings are a de facto source of EU law, this observation also has relevance for the Court itself. Clarity and predictability are especially pertinent in the context of the Article 267 TFEU preliminary reference procedure, through which the Court provides rulings on questions relating to the validity or interpretation of EU law referred to it by national courts. Such rulings are binding not only on the referring court, but also on courts throughout the EU’s Member States, and the procedure has played a key role in promoting a uniform and effective interpretation and application of EU law throughout the Union.

 

That obstacles to ‘certainty’ exist is not, however, probative of a kind of radical indeterminacy that might suggest that outcomes are wholly unpredictable. The purpose of my book is to draw attention to (perhaps neglected) factors within the EU legal order, and within the preliminary reference procedure specifically, which mitigate the obstacles to ‘certainty’. These factors are called ‘steadying factors’ and are drawn from American legal realist Karl Llewellyn’s book, The Common Law Tradition: Deciding Appeals (Little Brown 1960). Llewellyn, in order to counter any impression that American appellate court decisions were unpredictable, argued that there were fourteen steadying factors that made such decisions ‘reckonable’ (or reasonably predictable).

 

In chapter 2, I isolate those of Llewellyn’s steadying factors that can be applied to the Court of Justice and re-model them, dividing the factors into two categories, legal and extra-legal. I identify two factors as legal steadying factors: “legal doctrine” and “known doctrinal techniques”. However, my book concentrates on the extra-legal factors; that is, those factors outside of legal rules or principles and the limited number of interpretative techniques used to interpret them. I argue that these extra-legal factors help promote greater stability in preliminary reference outcomes in the following ways: first, by reinforcing the pressures exerted by legal rules on judges; second, by narrowing the number of conceivable outcomes; and third, by providing various signposts to a lawyer attempting to forecast an outcome. In the book, I further divide the extra-legal steadying factors into three sub-categories: internal, external, and procedural.

 

The internal factors, examined in Part II of the book (chapters 4 and 5), are common values, outlooks, and working methods which are (or ought to be) internalised by judges. In the book, I adopt, as a working assumption, Llewellyn’s argument that the “law conditioning” of judges – resulting from their legal education and professional backgrounds – should cause an internalised understanding of the normative quality of legal rules and more uniform approaches to interpretation. In Chapter 4, I re-model Llewellyn’s definition of a “law-conditioned official”. This recast definition is then applied to the biographical details of the past and present judges of the Court of Justice in chapter 5, revealing that 100 of the 111 judges appointed since 1952 have had twenty or more years of post-qualification experience in law after their legal educations. Examination of the biographical details of the judges also reveals a (perhaps expected) tendency for the judges to be experts in European law or to have international legal experience prior to appointment, something that should serve to diminish the impact of differing legal-cultural backgrounds on commonality of approach to interpretative problems.

 

The external factors, analysed in part III, are those factors which serve to reduce the impact of destabilising external pressures on judges and to reinforce the pressures established by the applicable legal rules. In chapters 6-10, I test a hypothesis – derived from Llewellyn’s “judicial security and honesty” steadying factor – that the institutional design of the EU legal order and the Court of Justice’s relationship with other institutional actors serves to promote greater stability in preliminary reference outcomes. This two-pronged hypothesis posits that an institutional independence-accountability balance ensures that: (1) the Court and its judges are sufficiently independent to make rulings which are contrary to the interests of powerful countervailing powers, but (2) are simultaneously more likely to face countermeasures (legal and illegal) where they make rulings which fail to demonstrate minimal adherence to applicable legal doctrine.

 

The procedural factors, discussed in Part IV (chapters 11-15), are the aspects of the preliminary reference procedure arising from procedural rules and practices that play a role in narrowing the scope of the Court’s decisional options. In this regard, six of Llewellyn’s factors are applied to the preliminary ruling procedure in the order in which they typically arise chronologically in a reference: “issues limited, sharpened, and phrased in advance”, “a frozen record from below”, “adversary argument by counsel”, “a known bench”, “group decision”, and “an opinion of the court”. The analysis in Part IV highlights the role that these factors play in confining the Court of Justice’s decisional latitude or in influencing its approach. For instance, the significance of Article 267 TFEU itself in removing the jurisdiction of the Court of Justice over fact finding in the main proceedings and confining the Court to ruling on limited questions of EU law is discussed. Moreover, consideration is given to other procedural aspects, which stymy the Court’s ability to pursue ideological agendas divorced of legal basis; for example, the division of labour in the procedure ensures that the Court of Justice is dependent on national courts for references, cannot engineer its own, and has no official method of docket control. Further, the effect of the questions referred by the national court in the order for reference in narrowing the scope of the Court’s enquiries is examined. Additionally, attention is given to aspects of the Court’s deliberative and decisional processes, such as the fact that judgments or orders are always the result of a group decision and need to be justified in a published written ruling. These latter aspects serve to reduce the impact of individual idiosyncrasies on the ruling and to place pressure on the judges to demonstrate the rigour of the Court’s legal reasoning.

 

The book concludes that the steadying factors analysed in the book play a role in promoting greater ‘certainty’ and consistency in the Court’s preliminary rulings by, among other things, exerting pressure on the Court to recognise the limits placed on it by legal doctrine and known accepted doctrinal techniques. These pressures, it is concluded, arise from a combination of factors such as internalised values of the judges, external accountability mechanisms, and procedural rules and practices which circumscribe the decisional freedom of the judges. While the book in no way asserts that the rulings of the Court of Justice are wholly predictable, even to the most skilled lawyer, it is maintained that these pressures at least contribute to reducing the impact of the obstacles to ‘certainty’ and ensuring that the Court is cognisant of the normative effect of the rules it interprets and applies.

The odd couple: Free choice of asylum and temporary protection

 

Dr. Esin Küçük, University of Essex

Photo credit: Silar, via wikicommons media

The idea of free choice of protection state in asylum law has been entertained in the literature, mostly as part of the debate surrounding the reform of the EU asylum regime. Maiani, for example, convincingly makes a case for a free choice of asylum state and proposes scaled-up solidarity instruments to offset the implications of such a model for the preferred states. Mitsilegas proposes the mutual recognition of positive asylum decisions, which would allow refugees (instead of asylum seekers) to choose their country of protection. The idea of allowing asylum seekers to choose their country of protection was also considered by the Commission in debates about a reform of the Dublin Regulation, although it failed to find enough support for the reason that it would not provide for solidarity or a fair sharing of responsibility, a highly sensitive issue.

With the escalation of armed conflict in Ukraine and the arrival of refugees, the EU has found itself employing a form of de facto free choice model, which seemed politically unfeasible before. As far as solidarity and responsibility sharing is concerned, the EU’s perception of free choice of asylum has changed substantially, at least for the time being. In the Council Implementing Decision introducing temporary protection, a free choice system is presented as a way of facilitating a balance of effort between the Member States (Preamble 16). Free choice of asylum practices can prevent pressure from building up in neighbouring states that may have limited capacity to host asylum seekers and process applications. From the perspective of refugees, free choice practices also have merits. Instead of forcing asylum seekers to remain in a country where they may have no or limited ties, the free choice model allows them to join social networks that support their integration. In brief, the recognition of the potential of free choice of asylum in meeting the demands of asylum solidarity is a welcome development. Its practical advantages, such as preventing smuggling and irregular movements, are noted here (p.46), and here (p.29).

The legal foundation of free choice of asylum is the Schengen visa waiver which exempts Ukrainian nationals from visa requirements for entry into the EU and provides them with the right to travel within the EU for 90 days within a 180-day period (Article 4, Annex II). This means that displaced Ukrainian nationals can decide in which Member State they wish to exercise their rights as beneficiaries of temporary protection. This scheme of free choice is considerably different from the proposed models mentioned above, not least because it is coupled with temporary protection with the activation of the Temporary Protection Directive, which is also being tested for the first time.

This de facto free choice model, or more precisely its unexpected union with temporary protection, raises a number of questions. The EU asylum acquis, including the Temporary Protection Directive, is based on the permanency of asylum jurisdiction. Asylum processing responsibilities are assigned to a single state, which is often the country of first arrival according to criteria set out under the Dublin Regulation (Article 7). Within this system, the only way for asylum seekers to choose the state of protection is to enter the EU territory through the country where they wish to lodge an application. In practice, such a choice is rarely available. Secondary movements of asylum seekers are, in principle, prohibited, and returns are facilitated pursuant to the take-back mechanism provided under the Dublin system (Article 23). Finally, protection statuses are not valid throughout the EU, meaning that asylum jurisdiction cannot be transferred to another state.

The Temporary Protection Directive is also underpinned by the permanency of asylum jurisdiction. Under Article 8(1) of the Directive, the beneficiary of protection can exercise her rights in the Member State that has issued a residence permit. Preamble 9 of the Directive clearly shows that transfer of jurisdiction is something undesired and to be countered. To that effect, the Directive (Article 11) requires the Member States to take back a person enjoying temporary protection in their territory in the case of secondary movements. How does this system, which is centred around pre-assigning responsibility to a single state and preventing secondary movements, align with a free choice scheme?

The Implementing Decision seeks to integrate the spontaneously created free choice model into the existing framework. An important step taken towards an integration of the two systems is the abolishment of returns. It is worth mentioning that the Temporary Protection Directive (Article 11) allows the Member States to relinquish take back obligations through a bilateral decision. In the Implementing Decision, the Member States took a step further and decided to relinquish returns across the EU (Implementing Decision, Preamble 15). This is an important and positive development that goes well beyond what the Directive already allowed through bilateral agreements. Does this mean that a transfer of asylum jurisdiction is possible for temporary protection holders? The Implementing Decision does not directly deal with the transfer of protection jurisdiction, but Preamble 16 of the Decision provides some insights.

‘Once a Member State has issued a residence permit in accordance with Directive 2001/55/EC, the person enjoying temporary protection, whilst having the right to travel within the Union for 90 days within a 180-day period, should be able to avail of the rights derived from temporary protection only in the Member State that issued the residence permit. This should be without prejudice to the possibility for a Member State to decide to issue, at any time, a residence permit to persons enjoying temporary protection under this Decision.’

It is clear from this statement that the permanency of residence principle remains in place. Protection responsibilities are assigned to the Member State that issued the residence permit. On the other hand, the transfer of asylum jurisdiction is not altogether prohibited. It is in the discretion of the Member States to grant a residence permit to protection seekers who are offered temporary protection elsewhere (discussed here). This leaves us with a limited free choice model. Ukrainian refugees have full freedom to choose their country of protection before they receive a residence permit in a Member State. Once they choose their protection jurisdiction, the possibility of transfer depends on the willingness of the transferee state.

Does this midway position make sense? One of the rationales that underpin permanency of asylum jurisdiction is the lack of uniform status determination. This ground, clearly, is not pertinent given that the protection status of Ukrainian nationals became valid throughout the EU with the activation of the Temporary Protection Directive. A more convincing reason could be the goal to mitigate the implications of free choice on the popular asylum destinations. The limitation on transfers allows the Member States to refuse issuing residence permits to those who are already under protection, and thus may serve to limit increased responsibilities for some Member States that are feeling under pressure. However, Member States are not required to justify their refusal of transfer requests. The fact that full discretion is accorded to the Member States in deciding whether to allow transfers sits uncomfortably with the narrative of facilitating a balance of efforts.

The marriage of two different systems begs further, intertwined, questions: When do protection responsibilities start and on which state do they fall? These questions prove to be relevant especially in cases of movements before obtaining temporary protection. By way of example, consider a displaced person who moves to a second state where she registers with the authorities and receives a temporary protection certificate, before moving to a third Member State where she requests a residence permit. The Implementing Decision does not explicitly address this scenario, and different interpretations are possible. Based on the link between the exercise of temporary protection rights and a residence permit established by Preamble 16 of the Implementing Decision, it would not be too far-fetched to argue that the protection obligations start when the residence permit is issued in the country that issued the permit.

Related to the above, there is another loose end that needs tying up. The Implementing Decision presumes that the applicant will apply for a residence permit within the 90 days of free travel. What if our displaced person, who travelled across several Member States, fails to apply for a residence permit within the visa free period? Does the responsibility fall on the country where she was residing at the time when the visa-free period came to an end? Can the applicant simply choose where she wants to apply?

These rather technical questions may not be relevant to the majority of cases. However, they show that the unplanned merger of the Temporary Protection Directive and free choice of asylum most certainly requires further modifications and clarification. Nevertheless, (limited) free choice of asylum has brought a much-needed fresh perspective on border management in the EU, which one hopes will inspire the future design of the EU asylum regime.

 

Poundshop free movement? Long-term resident non-EU citizens: the EU Commission’s new proposal (part 2)

 

Professor Steve Peers, University of Essex

Photo credit: Rept0n1x, via Wikimedia commons

Free movement of people between EU Member States is often seen as one of the cornerstones of the European Union. But in principle it only applies to EU citizens, and to citizens of countries which have free movement deals with the EU (Norway, Iceland, Switzerland and Liechtenstein), along with their family members. To a limited extent, though, EU migration law provides for mobility between Member States for non-EU citizens, albeit on stricter terms than free movement law. The issue is whether the terms are so strict as to make mobility of non-EU citizens derisory compared to free movement law – a kind of ‘poundshop’ version of the real thing.  

One of the EU immigration law measures providing for such mobility is the existing law on EU long-term resident (LTR) status for non-EU citizens (a Directive dating from 2003 – amended in 2010 to extend it to those with refugee or subsidiary protection status). The EU Commission has recently proposed to amend this law, improving the rules on both obtaining LTR status in one Member State and then using EU LTR status to move to another Member State.

In the first part of this blog post, I looked in detail at the proposals to amend the law as regards obtaining LTR status in one Member State. This second part looks at what the proposal would change as the rules on long-term resident non-EU citizens moving to other Member States, comparing this also to EU free movement law (in particular, the Directive on EU citizens’ free movement rights).

I won’t reiterate the points discussed in detail in the first part (the personal scope of the law, the conditions for getting LTR status, and the rights of LTRs in the first Member State). As we’ll see, though, some of the rules on LTRs moving to other Member States either incorporate those parts of the law which deal with getting LTR status in the first Member State, or use some or all of the same wording. As with the rest of the proposed law, this is just the beginning of the EU legislative process: the proposal would need to be agreed (perhaps following amendments) by EU Member States in the Council, as well as the European Parliament, to become law.

Unlike the first part of the blog post, there isn’t much discussion of CJEU case law here, as the Court has rarely been tasked to interpret the rules on LTRs moving to another Member State: the Commission v Netherlands judgment concerning fees for applying for status in both the first and subsequent Member State, and a German court sent questions to the CJEU last Christmas Eve (the case is still pending) on the interpretation of the rules on some aspects of movement between Member States.

Also, Denmark and Ireland have an opt out; the UK had also opted out of the current law while it was a Member State, although the current law applied to Brits as non-EU citizens following Brexit (as would the 2022 proposal to replace it). For Brits, though, this part of the current and proposed long-term residence law has a particular significance, as it limits the loss of free movement rights that occurred for them when the UK left Brexit without negotiating a continuing free movement arrangement with the EU. (I’ve previously discussed the specific issues around the application of the LTR law to British citizens here). Whether mobility rights for LTRs are only a ‘poundshop’ version of free movement law may be particularly relevant for them.

A key feature of the law is that an LTR who moves to a second Member State does not transfer their LTR status there immediately or automatically. Rather they have to apply for a residence permit there and apply for LTR status there several years later. Until then, the person who has moved retains LTR status in the first Member State, while holding a residence permit in the second Member State. Therefore, much of the law deals with what happens in the second Member State during that waiting period.

This blog post looks in turn at: the rules on the initial movement to a second Member State (personal and material scope; conditions; family members; exceptions; procedural rights; equal treatment; withdrawal or loss of status); obtaining LTR status in the second Member State; and how mobility of LTRs in the current and proposed law compares to free movement law.

 

Movement between Member States

Who can move – and on what grounds?

Under the current and proposed long-term residence law, an EU LTR non-EU citizen has the ‘right’ to move to another Member State besides the Member State that granted them EU LTR status. Keep in mind that it’s only the EU version of long-term resident status for non-EU citizens that comes with the right to move to another Member State; holding a parallel national LTR status does not come with that right.  

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.

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 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, but in the absence of case law it is not yet confirmed that the CJEU would interpret the rules the same way.

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 new 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 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. There’s no case law to clarify what difference the different wording makes (if any); but in any event, the second Member State cannot require compliance with integration measures if the LTR has already complied with integration conditions in the first Member State.

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 a similarly unclear clause relating to applying for LTR status in the first Member State (see the first blog post).

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.

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.

As noted in the first part of this blog post, the 2022 proposal would waive certain rules in the family reunion Directive for an LTR in the first Member State; the proposal would also drop reference to the conditions in that Directive where a family already in the first Member State moves to a second Member State. However, it does not waive any rules in that Directive if the family did not already reside in the first Member State: as a consequence, moving to a second Member State would mean that the LTR is worse off as regards initial family reunion in the EU than they would have been had they stayed in the first Member State.

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.

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 (see part 1 of this blog post), 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, there is no condition as regards obtaining LTR status in the first Member State. However, the second Member State may, under the current law, refuse applications on public health grounds. The text further specifies that:

The only diseases that may justify a refusal to allow entry or the right of residence in the territory of the second Member State shall be the diseases as defined by the relevant applicable instruments of the World Health Organisation's and such other infectious or contagious parasite-based diseases as are the subject of protective provisions in relation to nationals in the host country. Member States shall not introduce new more restrictive provisions or practices.

The 2022 proposal would replace this 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.

Note that the new proposal would delete the standstill clause. It would also delete two other rules from the current law, which provide that ‘[d]iseases contracted after the first residence permit was issued in the second Member State shall not justify a refusal to renew the permit or expulsion from the territory’ and that Member States may require medical examinations for LTRs ‘in order to certify that they do not suffer from any of the diseases referred to’; these examinations, ‘may be free of charge’ and ‘shall not be performed on a systematic basis’.

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 three months and one month respectively. But the separate change suggested by the proposal – the right to take up employment or study within 30 days of submission of the application – would mean that these deadlines matter less in practice.   

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 in part 1 of this blog post). 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.

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.

 

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.

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.

 

Comparisons with free movement law

First of all, as regards personal scope, all EU citizens can in principle move between Member States, whereas the right for non-EU citizens under the LTR law applies only to those non-EU citizens who have obtained EU LTR status. At the very least there is a five year wait until they can obtain that status in the first place. (As noted above though, a few other EU laws provide forms of mobility for non-EU citizens). The 2022 proposal does not change this, although as discussed further in part 1, it would make it easier in various ways to obtain EU LTR status in the first Member State in the first place.

Next, the current EU LTR law, unlike free movement law, allows the second Member State to apply a labour market or preference test for those EU LTRs who move to be employed or self-employed, and to retain pre-existing quotas on the number of non-EU citizens who move to their territory. Both possibilities are more restrictive than free movement law – but the 2022 proposal would delete them both.

However, various groups of workers who have rights under EU free movement law (posted workers, self-employed temporary service providers, seasonal workers and cross-border workers) are excluded from or subject to national law in the second Member State as regards the EU LTR law.

The obligation for non-EU citizens to apply for a residence permit does not apply under free movement law – although the 2022 proposal would ameliorate this somewhat, by allowing the LTR who is moving to a second Member State to start work or study there no more than 30 days after applying for a residence permit.

Also, the potential obligation to meet ‘stable and regular resources’ and sickness insurance requirements only applies to EU citizens who move for non-economic reasons – whereas under the LTR law it can apply to workers and the self-employed too. The ‘stable and regular resources’ test for non-EU citizens might also in practice be more stringent than the ‘sufficient resources’ test for those categories of EU citizens. An integration measure requirement is possible for non-EU citizens, but not for EU citizens. The new proposal aligns with free movement law in disposing of a provision on accommodation, which had (more clearly) applied to the free movement of EU workers until that law was amended in 2004. Moreover, equal treatment as regards recognition of professional qualifications would align non-EU LTRs with EU citizens explicitly.

As for family members, free movement law has a wider definition of core family members who can move with the EU citizen than the family reunion Directive (which is applied by the LTR law). The gap is even wider as regards family members who live outside the EU, as the family reunion Directive includes provisions such as waiting periods regarding their entry.

It’s unclear how similar the public policy and public security exceptions in free movement law and the EU LTR law are. As regards public health, however, the 2022 proposal moves towards alignment in some areas (the Schengen Border Code definition of public health is nearly identical to that in the free movement Directive), but moves away in others (as regards the two rules it would drop: although note that under free movement law, medical examinations must be free of charge, so there is already a gap on that point).

Better equal treatment rules for family members of LTRs in a second Member State brings the position closer to EU free movement law, which extends its own rules on equal treatment of EU citizens also to their family members. The prospect of loss of status is higher than under free movement law, given that the conditions concerned are more stringent.

While in principle obtaining LTR status in the second Member State after five years is the same rule as obtaining permanent residence under free movement law, the situation is not fully comparable as a non-EU citizen would already have LTR status in the first Member State, yet the conditions applying to getting LTR status in the second Member State are – apart from the waiting period – more stringent than under free movement law. The suggestion in the 2022 proposal that an LTR could get LTR status in the second Member State after three years is at first sight a more favourable rule than applies to free movement law for most EU citizens – but those problems with comparability of the two situations should be kept in mind. Anyway, the exception relating to equal treatment for social assistance and study grants etc matches that under free movement law (in fact, the social assistance exclusion is more stringent for non-EU LTRs than for EU citizens). And for LTRs, there is no provision for retaining worker status in the event of unemployment et al, that ameliorates the position of some EU citizens under free movement law.  

In general, then, although the 2022 proposal would narrow the gap somewhat, EU LTR status would still fall short by some way of the free movement rights that EU citizens have.

 

Comments

The new proposal goes some way towards achieving its objective of improving mobility rights for EU LTRs. Some obstacles are removed, as regards the labour market test, retention of quotas, the ability to work or study 30 days after submitting the application, shorter deadlines to reply to applications, better treatment of family members on the territory, easier changes of employer in the first year, ending the prospect of expulsion from the entire EU, and obtaining LTR status after three years.  Some would remain, as regards the exclusions from the scope of the mobility rules, the residence permit application requirement, conditions relating to admission, fairly limited provisions on family reunion, and the possible restrictions on access to employment or self-employment by students or those who move for other reasons.

There are therefore good reasons to support the proposal, for those who share its objective of improving integration of non-EU citizens on EU territory, and broadening access to the EU-wide labour market in particular. But there are several features of this part of the proposal which can be improved – notably its limitations on scope, conditions on admission (is any further integration test really necessary?), family reunion, retaining worker status, transfer of international protection, and access to the workforce by non-economic non-EU LTRs.

See also

Impact assessment for new proposal

2011 report on application of the Directive

2019 report on application of the Directive

Long-term resident non-EU citizens: the EU Commission’s new proposal (part 1)

 

Professor Steve Peers, University of Essex

Photo credit: Marcomob, via Wikimedia commons

As part of its broader policy on legal migration, the EU has long had an interest in regulating the legal status of long-term non-EU residents in Member States. The current law on this issue is a Directive dating from 2003 – amended in 2010 to extend it to those with refugee or subsidiary protection status. A recent proposal from the Commission aims to go further in extending the rights of this big group of non-EU citizens. The following analysis is the first part of an explanation and analysis of the main features of the Commission’s proposal – which would have to be agreed (perhaps following amendments) by EU Member States in the Council, as well as the European Parliament, to become law. (Denmark and Ireland have an opt out; the UK had also opted out of the current law while it was a Member State). The second part of this blog post (split to keep its length manageable) looks at the proposals to change the rules on long-term resident non-EU citizens moving to other Member States.

 

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. (I’ve previously discussed the specific issues around the application of the LTR law to British citizens here). However, some pending CJEU cases argue that British citizens never lost EU citizenship at all (see my discussion of the Advocate-General’s opinion in the lead case here); we will find out soon enough from the judges if that interpretation is correct.

The 2022 proposal would drop the exclusion of those whose ‘residence permit has been formally limited’, on the grounds of imprecision: according to the 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.  

On the other hand, the new proposal would leave in place the other exclusions from its scope, including the rest of the ‘temporary grounds’ exception, which is the subject of a pending CJEU case, EK. The Advocate-General’s opinion in that case argues that non-EU family members of EU citizens who have not left their Member State of nationality (a group of people known to EU lawyers as Zambrano cases) are excluded from the scope of the EU law on long-term resident status due to the ‘temporary grounds’ exception – even though they have rights to stay more generally under EU law. It remains to be seen if the CJEU shares that interpretation. If so, they would be in a different position from non-EU family members of EU citizens who have moved within the EU, and who are therefore covered by free movement law: the proposal would confirm in the preamble that they are within the scope of the long-term residents’ law. It would also be necessary to distinguish between Zambrano cases, where the residence of the non-EU family member of an EU citizen was based on EU law, and cases such as Iida, where the residence of the non-EU family member of an EU citizen is based on national law (in that case, a non-EU spouse of a German citizen due to his initial residence with his wife in Germany), where the Court confirmed that the EU LTR law could apply in principle.

These exclusions are obviously important in particular to millions of Ukrainian refugees who have obtained temporary protection in the EU in the last few months (see discussion of EU temporary protection for them here). However, as discussed next, this is not quite the end of the story.

 

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 to obtain the status (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 new 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, discussed below.

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 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. 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 instance, Blue Card holders).

However, the proposal retains an exclusion designed to deter the use of ‘golden visas’: Member States must exclude counting time spent in another Member State by a non-EU citizen who obtained a residence permit due to investment. The investment exception (which is an exclusion from the cumulation rule, not from the scope of the law as a whole, ie five years’ residence in a single Member State can still lead to LTR status for investors) is defined in the preamble, as referring to residence permits based on investment ‘such as capital transfers, purchase or renting of property, investment in government bonds, investment in corporate entities, donation or endowment of an activity contributing to the public good and contributions to the state budget’.

Thirdly, 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 is now 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 definitely improves the position of those who previously resided as students or on a temporary basis, and arguably confirms the existing position of those with temporary or national protection – potentially important for millions of Ukrainians, 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) is retained.

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.

 

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 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 are also 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.  

Member States also have an option to require compliance with ‘integration conditions’ in order to obtain EU LTR status. The 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.

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.

 

The application process and procedural rights

The 2022 proposal retains 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).

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).

 

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.

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 recent 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.

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.

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 proposed law 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 will 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 will be fast-tracked, and they will benefit from some of the procedural rights in the proposed LTR law. Next, family members of EU LTRs will 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.

 

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 proposal does not explicitly set out what happens if national law on LTR status creates more favourable rules only for some categories of national LTR applicants (for instance, a waiver from some or all integration conditions for those with a degree or working long hours, as in Iida). In that case the most logical interpretation would be that the more favourable national rules apply to the same categories of people applying for EU LTR status.

However, the non-discrimination rule would not apply to any national rules which provide for obtaining LTR status before five years, whether those rules apply to the benefit of specific groups of people like family members (see the Tahir case) or in general. (Keep in mind, though, that the 2022 proposal suggests that EU LTR status would be available to children of EU LTRs on birth or adoption). It would also not apply to rules relating to public policy or public security, loss or withdrawal of LTR status, or expulsion.

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 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).

 

Comments

The Commission’s proposal would open EU LTR status to more people, making it harder to lose and giving holders more rights. Given the importance of the objective of ensuring the integration of legal non-EU residents, it’s a valuable initiative in principle, subject to some further comments on the detail.

First of all, it’s a good idea to remove the ‘limited residence permit’ exclusion from the law, given that the case law is unclear. Moreover, this exclusion is unprincipled: it’s illogical to exclude from the scope of a long-term residence law those whose residence is not actually temporary.  

This would also be a good opportunity to confirm that – contrary to the opinion of an Advocate-General – Zambrano cases (ie non-EU family members of EU citizens who have not moved between Member States, whose status derives from EU citizenship law) do fall within the scope of the law. It is illogical to treat them worse not only than the non-EU family members of EU citizens who have moved on the basis of free movement law, but also worse than the non-EU family members of EU citizens who also have not moved but who are not covered by EU citizenship law, but only national law (Iida). And this exclusion is also out of sync with the justified attempts which this proposal makes to improve family reunion rights.

While the improvement of the rules on calculation of the five-year period are welcome (non-EU family members of EU citizens exercising free movement rights will particularly benefit from the cross-border cumulation rule, removing a ‘deterrent to free movement’ in the language of the CJEU), it seems capricious to keep a different rule for asylum-seekers, particularly as this might cross over with, or follow on from, holding the status of temporary protection for millions of those fleeing the invasion of Ukraine. The simplification of some of the other conditions for obtaining LTR status is welcome, too – particularly the ditching of the weirdly drafted and unnecessary quasi-condition relating to accommodation.  

It’s striking that, in different ways, much of the case law on the current legislation is about people who are relatively poor – as regards resources requirements, equal treatment for benefits, and fees for applications (or in relation to integration tests). In that context, it’s surprising to see an EU migration proposal that’s concerned instead about abuse by rich people. This may be a form of displacement activity for the Commission, which dislikes ‘golden visas’ in general; perhaps it would be more honest simply to table a proposal abolishing them or at least providing for harmonised EU rules to prevent abuse.

It’s useful that the proposal improves the position of EU LTR status by comparison with national LTR status, but it’s unfortunate that it does not address whether the two types of status can be held simultaneously. The objective of improving integration of long-term residents would surely be enhanced if they could be.

As for family reunion, the proposals, particularly improving the position of children (who, if they do not obtain jus soli citizenship of the state where they are born, may fall through the cracks and become vulnerable due to lack of a secure migration status) are welcome. But the proposal could have gone further – for instance, waiving the waiting period for admission of family members under the family reunion Directive.

One final point about the inclusion of British citizens within the EU’s long-term residence law – and this proposal to amend it – as a consequence of Brexit. It’s understandable that those aggrieved by the loss of EU citizenship have litigated to challenge whether it has been lost or not. But in the event that that challenge fails, some have taken refuge in implausible fanfic about the EU’s supposed willingness to create a form of EU citizenship for Remain voters. But there are obvious legal obstacles and no sign of political will to do this. As it stands, with the UK having left the EU and refused any form of free movement, and with UK/EU relations deteriorating, it’s about as likely as Harry Potter beaming onto the TARDIS from the USS Enterprise – with an away team comprising Gandalf, Luke Skywalker and the Easter Bunny. The more tangible prospect of improving the position of Brits in the EU is as part of those covered by this proposal (ideally improved), which could benefit all non-EU long-term residents in the EU.

 

See also

Impact assessment for new proposal

2011 report on application of the Directive

2019 report on application of the Directive