Judicial control over alleged breaches of fundamental rights in the implementation of Eulex Kosovo and Advocate General’s Ćapeta's Opinion in Joined Cases C-29/22 P and C-44/22 P

 

Antje Kunst*

Photo credit: Sharon Hahn Darlin, via Wikimedia Commons

Advocate General (‘AG’) Ćapeta delivered her Opinion in Joined Cases C‑29/22 P and C‑44/22, KS and KD, on 23 November 2023. She proposed that individuals may bring an action for damages against the EU before the EU Courts based on alleged breaches of fundamental rights in the implementation of an EU Common Security and Defence Policy (‘CSDP’) mission, Eulex Kosovo, and, related to the investigations that were carried out, during that mission, into the disappearance and killing of the applicants’ family members in 1999 in Pristina (Kosovo).

Introduction

In this case before the Grand Chamber, the main question is to what extent there is a limitation on the jurisdiction of the EU Courts in the Common Foreign and Security Policy (‘CFSP’), which includes CSDP missions, provided for by provisions of the EU treaties, and whether the Court of Justice of the European Union (CJEU) has jurisdiction to hear actions for damages allegedly caused by breaches of fundamental rights committed in the implementation of the Eulex Kosovo. This was a novel question before the Court.

The case concerns two individuals, KS and KD, who lost their direct family members in 1999 in the aftermath of the Kosovo conflict. Their murders and disappearances remain unsolved. In 2008, Eulex Kosovo was established as a CSDP mission, and one of its tasks was inter alia to investigate such crimes.  

This blog post concludes that in sensitive cases like the case of KS and KD involving an EU body, Eulex Kosovo, which carries out executive functions vis-à-vis individuals, it is imperative that EU Courts do not hide behind the ‘CFSP’ limitations. At stake are the rights of individuals whose family members' disappearances were not adequately investigated by the European Union.

Human Rights Review Panel to review complaints against Eulex Kosovo

The executive mandate of Eulex Kosovo, acting in part like a state, made it necessary to establish a body to review fundamental rights breaches by the mission. A year after Eulex Kosovo became operational, the Council established a Human Rights Review Panel (‘HRRP’) to review complaints of alleged human rights violations committed by Eulex Kosovo in the performance of its executive mandate.  The HRRP’s findings and recommendations were non-binding, and the Panel could not adopt a recommendation of monetary compensation.

Regarding KS, the HRRP determined that Eulex Kosovo had breached her rights under the ECHR by failing to conduct an effective investigation into the disappearance of her husband. Concerning KD, the HRRP concluded that Eulex Kosovo's inquiry into the abduction and killing of her husband and son was inadequate, leading to a violation of her rights under the ECHR.

In both cases, the HRRP made several (non-binding) recommendations to the Head of Mission of Eulex Kosovo. In the follow-up to the implementation of its recommendations, the HRRP essentially declared that the Head of Mission had only in part implemented its recommendations, but nonetheless decided to close the cases.

Decision to establish a review panel lacking the authority to enforce its rulings

Before the EU General Court in Case T-771/20, the case under appeal before the Court of Justice, the applicants contended that their action, brought on account of a breach of fundamental human rights, pertained to matters of a policy or strategic nature. In other words, they were related to defining Eulex Kosovo’s activities, priorities, and resources; as well as to the decision to establish a review panel lacking the authority to enforce its rulings or offer redress for identified breaches.

In the applicants’ view, the breaches of their fundamental rights arose from a lack of prioritisation, or a lack of the necessary resources, or appropriate personnel to enable Eulex Kosovo to carry out its executive mandate and thus fulfil the EU’s legal obligations. The breaches did not arise from malfunctions on the part of Eulex Kosovo, in those particular cases (para. 23 of the Order of the EU General Court in Case T-771/20).

The General Court held that it did not have jurisdiction ‘to review the legality of such acts or omissions, which relate to strategic choices and decisions concerning the mandate of a crisis management mission set up under the CSDP, which is an integral part of the CFSP, nor can it award damages to applicants who claim to have suffered harm as a result of those acts or omissions’ (para. 27 of the Order of the EU General Court).

Effective judicial protection requires review of CFSP decisions

AG Ćapeta in KS and KD, on appeal at the Court of Justice, observed that the inclusion of the CFSP in the EU constitutional framework means that the basic principles of the EU legal order apply to all activities of the EU undertaken within that policy, including in the area of the CFSP. The rule of law in the EU legal order required that the EU Courts ensure the lawfulness of the actions of EU institutions and bodies when they implement the CFSP (para. 83 of the Opinion).

To ensure the effective judicial protection of individuals who claim that their fundamental rights have been infringed by EU institutions or bodies in the exercise of the CFSP, the EU Courts must, in principle, have jurisdiction to hear such claims (para. 84 of the Opinion).

AG Ćapeta found that the provisions in the EU Treaties excluding the CFSP from the jurisdiction of the EU Courts can and should be interpreted as not applying to actions for damages for the alleged breach of fundamental rights resulting from a CFSP measure (para. 93 of the Opinion).

She considered that the EU Courts must interpret the EU Treaties in conformity with the principle of effective judicial protection. In this respect, she relied on the Opinion of AG Bobek in SatCen v KF, (Case C‑14/19 P, EU:C:2020:220), para. 69): ‘…Article 47 of the Charter does not allow the Court to rewrite the Treaties, but it does require the Court to interpret the existing provisions so that they can achieve their full potential to provide judicial protection to anyone concerned by acts of EU institutions and bodies’ (paras. 100 and 101 of the Opinion).

Judicial review of strategic decisions related to EU international missions

AG Ćapeta noted that there are strategic decisions over which the EU Courts lack jurisdiction. She elaborated on this in greater length in her Opinion in Neves 77 Solutions (delivered on the same day). Specifically, the EU Courts could not evaluate whether the EU should establish a mission in a particular part of the world. However, once a political decision to involve the EU in a specific country or conflict is made, the EU Courts must have the authority to scrutinise whether the implementation of such a decision is designed and executed in a manner that interferes disproportionately with human rights (para. 118 of the Opinion).  

In respect of the broad approach AG Ćapeta took, she clarified that some of those strategic decisions require more deference to the reasons put by the Council or other responsible body. The availability of funding for a particular mission might affect the rights of individuals whose family members’ disappearances were inadequately investigated. She then pointed out that the EU Courts must weigh such considerations against the broader financial and staff capacity of the EU, which manages missions globally and faces decisions on resource allocation. However, in her view, this did not entirely preclude the jurisdiction of EU Courts; instead, questions of deference and the intensity of scrutiny arise after jurisdiction is established (para. 119 of the Opinion).

Political and strategic decisions can never be in breach of fundamental rights

In situations where political or strategic decisions have the potential to violate fundamental rights, according to AG Ćapeta, the EU Courts should have the capacity to consider an individual's complaint. In this respect, the AG pointed out that the EU Courts are likely to show deference to the Council's reasons when assessing whether these decisions constitute a breach of fundamental rights (para. 120 of the Opinion). In light of her reflections, AG Ćapeta found that EU institutions and bodies are always bound by fundamental rights, and the choice to infringe those rights is not an available political or strategic choice, including in the area of the CFSP. There is a limit imposed on political and strategic decisions, as they can never be in breach of fundamental rights (para. 124 of the Opinion).

Comment

The accountability of EU international missions, like CSDP missions, has long been a concern. For the CJEU to decline jurisdiction for an action for damages brought by individuals based on an alleged breach of fundamental rights by the EU on the basis that EU law limits the jurisdiction of the EU Courts is problematic, especially considering this concern of lack of accountability. As a whole therefore, the Opinion of AG Ćapeta is a step in the right direction.

The case of KS and KD was also, previously, before a UK court and it was of the view that it did not have jurisdiction itself, given that in its view, the jurisdiction lay with the EU Court. To leave individuals in these type of cases without a judicial remedy, i.e. a national court and the EU Courts declining jurisdiction, is not acceptable. The essential entitlement to judicial protection for individuals affected by acts of EU institutions and bodies underscores the imperative to assert jurisdiction in these cases, just like the Court did in SatCen v KF.

Especially in sensitive cases like the case of KS and KD involving an EU body, Eulex Kosovo, which performs executive functions vis-à-vis individuals, it is crucial that EU Courts do not hide behind the ‘CFSP’ limitations. At stake are the rights of persons whose family members’ disappearances were not successfully investigated. AG Ćapeta correctly finds that only exceptionally, the constitutional role of the EU Courts can be limited.

EU law should be read as requiring respect for fundamental rights in all EU policies, and that it must be adhered to, and subject to judicial review. To assume jurisdiction in KS and KD-like cases ensures, in the words of AG Ćapeta, that CFSP decisions affecting individuals do not cross ‘red lines’ imposed by fundamental rights.

 

Comments were gratefully received from Prof. Graham Butler who has published an excellent analysis on the Opinion: https://eulawlive.com/op-ed-jurisdiction-of-the-eu-courts-in-the-common-foreign-and-security-policy-reflections-on-the-opinions-of-ag-capeta-in-ks-and-kd-and-neves-77-solutions-by-graham-butler/

 

*Antje Kunst is an international lawyer and a member of Pavocat Chambers advising and representing individuals in a wide range of matters in the field of the EU’s Common Foreign Security Policy (CFSP) and takes instructions from individuals challenging a wide range of decisions including EU employment cases to EU and UN sanctions before the EU courts and international bodies.

She was Counsel for KF before the Court of Justice of the European Union in Case C-14/19 P (SatCen v KF) and worked as a senior lawyer for the UN Mission in Kosovo.

 

Angesom’s application for judicial review: the Fundamental Rights Charter makes a (shaky) comeback in Northern Ireland

 

Anurag Deb, researcher, Queen’s University Belfast

Photo credit: Dom0803, via Wikipedia commons

 

Aman Angesom, an Eritrean national who does not speak English, arrived in Northern Ireland in June 2021 and applied for asylum. Initially accommodated in a house and then a hotel in Belfast, the Home Secretary made the decision to remove him to Scotland in October 2021. He was given less than 24 hours’ notice of his impending removal: he received a letter around 6 pm, for a removal time of 11.30 am the following day. The letter was in English with no translation provided to Mr Angesom. He was duly removed to Scotland and challenged this decision.

 

The challenge to the Home Secretary’s decision rested on five grounds, of which this post only explores the final ground: that the decision breached Article 2 of the Ireland/Northern Ireland Protocol (now sometimes known as the Windsor Framework). This was not the first such case invoking Article 2. Colin Murray has analysed the most important decision in this regard for this blog: here. This decision, SPUC’s application for judicial review, was affirmed on appeal in 2023. This post will explore how Angesom builds on the SPUC test with its detailed consideration of the EU Charter of Fundamental Rights (CFR), and why this matters both for human rights protection in Northern Ireland and for the reality of the post-Brexit legal landscape in the UK.

 

Article 2 and the CFR

 

Without delving into detail which Murray has already set out, the relevant aspect of Article 2 in Angesom is its non-diminution guarantee. What this means is that the UK is bound (internationally and domestically) to ensure that the rights, safeguards and equality of opportunity provisions mentioned in the Good Friday Agreement and underpinned by EU law on 31 December 2020 are not diminished in Northern Ireland following that date. ‘EU law’ in this context refers to all EU law which applied to and in the UK on 31 December 2020. This includes the CFR. But the applicability of the CFR does not stop at a certain date for Northern Ireland.

 

The Protocol continues to apply a list of EU law to Northern Ireland, and any such law brings with it the bells and whistles of EU law. These bells and whistles include, for example, the rule that such law must be interpreted consistently with the CFR. This is a rule confirmed by the Court of Justice of the EU and Court of Justice case law continues to bind domestic courts in the UK in relation to any EU law made applicable by the Protocol (but not the whole Withdrawal Agreement). Like the faces of the Roman god Janus, therefore, the CFR looks both to the past (applying to all of EU law on or before 31 December 2020) and the future (applying to only the listed EU laws after 31 December 2020). In Angesom, Mr Justice Colton confirms this at para 94, observing:

 

The combined effect of section 7A of the European Union (Withdrawal) Act 2018 (“EUWA 2018”) and Article 4 of the Protocol limits the effects of section 5(4) and (5) of the EUWA 2018 and Schedule 1, para 3 of the same Act which restrict the use to which the Charter of Fundamental Rights […] may be relied on after the UK’s exit.

 

It is important to unpick this statement. Section 7A of the EUWA, like section 2(2) of the European Communities Act 1972 before it, gives effect to the evolving body of rights, obligations, powers, liabilities, and so on, which arise under the Withdrawal Agreement. Crucially, s 7A also subjects everything in the statute book (including the EUWA) to the former provision. Section 5(4) of the same Act declares “The Charter of Fundamental Rights is not part of domestic law” on or after 31 December 2020. This seems to contradict section 7A, except for the fact that section 5(4) is itself subject to section 7A, as Colton J observes. Moreover, section 5(7) makes this subjection explicit – subjecting 5(4) to “relevant separation agreement law” which is defined in section 7C(3) to include, among other things, section 7A of the EUWA. This kind of drafting may seem confusingly circular, but it reinforces the fact that no part of domestic law presently circumscribes or otherwise impacts the ability of the Protocol to have full effect in Northern Ireland.

 

The availability of the CFR means that Mr Angesom was entitled to rely directly on its rights in a way which is unavailable in Great Britain (as the Protocol does not extent beyond Northern Ireland). In this case, the right in question was Article 7 CFR – the right to private and family life, which Mr Angesom argued was breached through his removal to Scotland. Regrettably but with respect, the court’s reasoning starts to suffer from this point in the judgment.

 

One step forward and two steps back?

 

Although the court in Angesom definitively clarified that the CFR applies in Northern Ireland now as it did before Brexit (albeit in respect of a vastly reduced body of EU law), there are two problematic points in its reasoning.

 

The first point concerns how Article 2 protects against a diminution of rights enjoyed prior to Brexit. The relevant text of the Article states: “The United Kingdom shall ensure that no diminution of rights, safeguards or equality of opportunity, as set out in [the Good Friday Agreement] results from its withdrawal from the [European] Union.” In Angesom, although the applicant did not provide much detail as to why his right to private and family life was disrupted as a result of being removed to Scotland, Colton J considered that this right was also protected under Article 8 of the European Convention on Human Rights (ECHR), via the Human Rights Act 1998 (HRA). Consequently, the applicant suffered no diminution (para 103). The judge framed the question this way:

 

The question as to whether there has been a breach of Article 2(1) therefore turns on whether a diminution of rights has occurred by reason of the fact that the applicant can no longer rely on Charter rights outside of Northern Ireland or whether it must be shown that in practice there is a substantive difference in the level of protection offered to the applicant in Scotland under the ECHR (para 100).

 

With respect, this is deeply problematic. If functionally similar (but legally non-EU) rights protections were sufficient to satisfy Article 2, one would expect that to be found within the text of the Article itself. This aside, however, the idea that the Protocol – part of a treaty between the EU and the UK – should be able to create legally enforceable obligations on the UK relating to a completely different treaty (in other words, the obligation under Article 2 can be satisfied via ECHR-compliant protections) is a surprise. The surprise is even greater when one considers that the EU has not acceded to the ECHR, raising the question why the ECHR should have occupied the minds of the framers of the Withdrawal Agreement at all.

 

Moreover, even if Colton J was correct to frame the question this way, there is an obvious answer: yes. Anyone taken out of the field of the CFR’s applicability loses its most powerful remedy: the automatic disapplication of any domestic legal provision which falls within the scope of EU law and which contravenes the CFR. The HRA, powerful as it is, does not allow courts to disapply Acts of the UK Parliament; by contrast, assuming the satisfaction of certain conditions, the CFR demands it.

 

The second problem in Angesom relates to which EU laws are said to be protected by the non-diminution guarantee Article 2. The applicant relied on the Reception Conditions Directive, which prescribes minimum standards for asylum seekers in every EU Member State. On the facts, Colton J found that the Home Secretary had complied with these standards (para 125). But this was preceded by the following question the court asked: “The next question is whether this Directive was binding on the UK on or before 31 December 2020.  In other words, is the Directive capable of having direct effect? (para 116)”.

 

With respect, whether a directive was binding or not on 31 December 2020 is a relevant question, but direct effect is not a requirement for a directive to be binding. This is reflected in the Becker case, which Colton J cites (para 117). In Becker, only directives which have “unconditional and sufficiently precise” provisions in terms of their subject matter have direct effect (Becker, para 25). Equating the two concepts (a binding directive and direct effect) has the problematic consequence of potentially restricting the non-diminution guarantee under Article 2 only to those directives which are capable of direct effect.

 

Conclusion

 

On the whole, Angesom is a welcome and definitive clarification that places the status and application of the CFR in the Northern Ireland legal order beyond doubt. The fact that the challenge under Article 2 failed on the facts obviated any impact which could have arisen from its problematic legal reasoning.

  

Live Facial Recognition for Law Enforcement: The European Union’s Regulatory Approach Should be Informed by UK Police’s Practice

 

 

Asress Adimi Gikay (PhD)

Senior Lecturer in AI, Disruptive Innovation, and Law at Brunel University London

Photo credit: Dirk Ingo Franke, via Wikimedia Commons

 

Divergent Approaches to Regulating Live Facial Recognition

In what is characterised as an 'Orwellian Nightmare', UK’s Minister of Crime, Rt Hon Chris Philp  MP recently suggested the opportunity for the UK police to search national passport database using facial recognition technology to tackle shoplifting crimes. This occurred as preparations were underway for the AI Safety Summit, an event that took place in London. It has some irony, to the surveillance anxious participants who gathered to discuss AI Safety as London is one of the cities with the largest number of CCTV cameras; but importantly where the police frequently use live facial recognition (LFR) in public spaces. 

Since South Wales Police made the first arrest using LFR over six years ago, UK Police use the technology to locate criminal suspects from crowds. In  LFR, the artificial intelligence(AI) software compares, in real-time, biometric facial images captured by a camera with existing facial templates of persons of interest  in a police-created database known as ‘watchlist’. This is contrasted with retrospective facial recognition system where the facial recognition takes place in the absence of the person of interest based on a video or still image taken from a source (also known as post-system). The UK government has called up on police force to expand the use of the technology, amidst growing concerns that the technology could endanger civil liberties.

By contrast, the European Union’s (EU) upcoming AI Act, in the Parliament’s Compromise Amendments categorically bans the use of LFR. However, the ‘trialogue negotiations’ seem to have led to a compromise where the use of the technology is permitted for specifically listed crimes punishable by at least five years. The EU’s restrictive position seems  intended primarily to appease civil society organisations, 12 of which wrote a letter to the EU Council in 2022 reiterating the need to prohibit the technology in categorical terms. Meanwhile, despite the recent call from 61 MPs and 31 civil society organisations demanding the immediate cessation of the use of the technology by UK police and private companies, efforts to stop the technology have remained unsuccessful in the UK.

In this post, explain why the UK’s approach should inform the regulation of LFR in the EU, by using evidences from the use of the technology by the UK police. I also introduce the theory of incrementalism, a normative framework for regulating novel technologies posing evolving risks whose magnitudes are yet to be known, in my forthcoming Cambridge Law Journal Article—‘Regulating Use by Law Enforcement Authorities of Live Facial Recognition Technology in Public Spaces: An Incremental Approach.’ 

Why the EU’S Approach Should Take an Incremental Approach

Incrementalism calls for regulating the use of the LFR technology by the police, and by extension similar technologies with novel advantages and risks, through progressive adjustment of the existing legal framework in the light of the potential risks and evidence of actual harm. This is different from a regulatory framework that responds to the risk of harm assessed in abstract terms, without considering the context of actual application of the technology, existing safeguards as well as the overall benefit of the technology.

I propose this theory to incorporate four main ingredients: sectoralism; reliance on existing legal frameworks; evidence-based regulation; and flexibility. This post will only explain evidence-based regulation as one of the important elements of the theory. The UK’s prevailing approach to regulating LFR and AI in general reflects certain elements of incrementalism. A measured regulation of facial recognition technology in the EU requires adopting this theory in its entirety or partially.   

Evidence-Based Regulation

The position of the EU on LFR does not appear to be based on thorough assessment of the benefits and risks of the harm of the technology as well as public support and the ability of law enforcement authorities to use it in proportionate manner.  Indeed, these are important factors in choosing the appropriate response to a new regulatory phenomenon. The experience in the UK provides an excellent insight into understanding the issue.

Evidence of Public Support and Benefits of the Technology

In a 2019 UK national survey conducted by Ada Lovelace Institute, 70% of respondents thought police should be permitted to use facial recognition in criminal investigation, with 71% supporting its use on public spaces, if it helps reduce crime. This positive public view aligns with the existing evidence of the effectiveness of the technology in tackling crimes. In 2020 and 2022, the London Metropolitan Police Service identified nine suspects in eight live facial recognition deployments. Earlier in 2018, the technology assisted South Wales Police in, reportedly,  making 450 arrests.  Several deployments in the UK have recently shown the effectiveness of the technology in helping arresting people suspected of committing violent crimes.

In October 2023, the Metropolitan Police identified 149 suspects of retail crimes using retrospective facial recognition. They compared hundreds of CCTV still images provided by retail businesses of their ‘prolific retail offenders’ against custody images. The result is significant as retail business are crucial to the UK economy creating a job for one in ten Londoners. Additionally, these crimes lead to the loss of estimated £1.9 billion in revenue whilst involving rampant abuse of retail workers. 

With the technology garnering some public support, campaigners struggle to present a persuasive evidence of harm of using it to back their push for blanket prohibition or suspension in the UK. As EU members states have not allowed the technology to be used, it is impossible to understand if the technology actually causes harm.  Generally, advocacy groups  highlight the inaccuracy of face recognition systems, especially in identifying women of colour, with Big Brother Watch claiming that Met and South Wales Police facial recognition systems are over 89% inaccurate. However the National Physical Laboratory independently tested two facial recognition systems used by the UK police in 2022. The result showed the software underperformed the most on Black-Female faces, but the discrepancy in accuracy rates across demographics was found to be statistically insignificant. Equally importantly, the inaccuracy of the technology does not inevitably translate into harm due to the existing legal safeguards the UK police adhere to, safeguards that exist or can be implemented in the EU.

Evidence of Safe and Proportionate Use

Despite the technology seeming to be unquestionably inaccurate, there is no reported case of serious harm resulting from the use of the technology in the UK because the UK police use it safely and proportionately. This can be contrasted with the US, where troubling incidents of wrongful arrests using facial recognition systems have been documented. For instance, Nijeer Parks, a Black American misidentified by facial recognition was wrongfully incarcerated for ten days. According to a civil complaint against the Director of Woodridge Police and others, Nijeer Parks voluntarily visited the police station to clear his name upon learning of an arrest warrant issued for him, in what he believed to be a case of mistaken identity. The police subjected him to coercive interrogations and solitary confinement, to secure his confession, whilst ignoring his alibi and the mismatch between DNA and fingerprints found at the crime scene with those of Nijeer Parks’.

These kinds of incidents seem to reflect more of police misconduct than the inherent challenge posed by the technology. Despite the concerns in the US,  in 2021, not less than seventeen state legislatures rejected bills to ban facial recognition. Some states including New Orleans and Virginia, that had previously banned facial recognition have now reversed course, to allow its regulated use.  Legislatures seem to want legal frameworks that strike a balance between benefits of the technology and addressing its risks.

Such a legal framework largely exists in the UK and the EU, as the two jurisdictions have similar human rights regimes. The UK police are obligated to use facial recognition technology in compliance with the Human Rights Act and the Equality Act, the latter imposing equality impact assessment obligation. Equality impact assessment requires the police to proactively tackle the potential discriminatory impact of the technology on specific groups and implement risk mitigation measures. These measures are supplemented by privacy law under the European Human Rights Convention and data protection rules under the Law Enforcement Directive (applicable both in the EU and the UK).

In the UK, the police also adhere to a national document prescribing detailed procedures for deploying live facial recognition technology known as the authorised professional practice. This national code of practice has a binding force. As a result of these comprehensive safety frameworks, the UK police have used facial recognition technology for seven-years without a single instance of wrongful arrest or abuse. As the European Union has advanced legal frameworks on human rights, privacy, data protection, and rule of law in general, it is inconceivable that the result of using facial recognition technology in the EU would be different from that of the UK.

Advocacy groups also highlight privacy intrusion and the expansion of surveillance as further concerns in relation to the use of LFR in public spaces. Nevertheless, these are addressed by legally limiting the duration, purpose and context of the use of the technology in the UK. The police are required to  assess the proportionality of using the technology, especially in places where it could have serious privacy implications such as hospitals and schools. This is mainly because article 8 of the European Human Rights Convention, similarly to its EU counterparts, articles 7, and 52 of the Charter of Fundamental Rights allow interference with privacy right based on the assessment of proportionality and necessity.  The existing legal framework in the UK does not permit surveillance at will. Things are not different in the EU, and in any event, a  loophole that creates a room for excessive surveillance could be addressed by a legislation.

Additionally, the face recognition software used by the police does not retain biometric data of individuals unless  positively matched, and personal data generated during its use is automatically deleted within a short span of time. These are intentionally built-in features of the software aimed at lessening the privacy and data protection impacts of the technology. Last, LFR is currently used in public spaces where people are unlikely to engage in private activities that should outweigh the public's interest in tackling violent crimes, although again, specific deployments need to observe the requirements of necessity and proportionality. 

Academics and advocacy groups often express doubt about the clarity of the legal basis for using facial recognition or the existence of mechanisms for redress for harms caused by the use of the technology. But this is not based on sound legal analysis. The current law does allow the police to gather information for fighting crimes including using new technological tools.  Furthermore, the police can be liable to pay compensation for harms, if they wrongfully detain or interrogate someone following misidentification using facial recognition technology under civil liability law. This is not to suggest that the existing law is without any loophole, but that addressing any legal gap requires delicate balancing rather than unnecessarily restrictive measures.

The Need to Reverse Course in the EU

The EU Commission’s Initial Draft of the AI Act permitted the limited use of LFR for law enforcement purpose.  First, by way of exception it allowed the use of the technology for narrowly defined, specific, and legitimate purposes [Art. 5(1)(d)]. These purposes are:

(i) the targeted searches for specific potential victims of crime, including missing children;

(ii) the prevention of a specific, substantial and imminent threat to the life or physical safety of natural persons or a terrorist attack; and

(iii) the detection, localisation, identification or prosecution of a perpetrator or suspect of a crime with a maximum sentence of at least three years that would allow for issuing a European Arrest Warrant. 

Second, the relevant law enforcement authority must demonstrate that the use of the technology is justifiable against (a) the seriousness, probability and scale of the harm caused in the absence of the use of the technology;(b) the seriousness, probability and scale of consequences of the use of the technology for the rights and freedoms of all persons concerned; and (c) the compliance of the technology's use with necessary and proportionate safeguards and conditions in relation to the temporal, geographic and personal limitations[Art. 5(2)-3]. The authority proposing to use the technology bears the burden of justification.

Third, the relevant law enforcement authority must obtain prior express authorisation from a judicial or a recognised independent administrative body of the Member State in which the technology is to be used, issued upon a reasoned request. If duly justified by urgency, the police may apply for authorisation during or after use [Art. 5(3)].

The Parliament’s Compromise Amendments categorically banned LFR used either by private companies or law enforcement authorities.  As this post has demonstrated, the evidence in the UK as well the recent reversal of bans in the US clearly indicate that the EU’s position is not based on concrete evidence. As mentioned earlier, the ‘trialogue negotiations’ seem to have led to a compromise where the use of the technology is permitted for specific crimes punishable by at least five years. This is unnecessarily restrictive as host of crimes including money laundering, financial fraud and other offences are not envisioned to be among the crimes for which the technology can be used.

A Call for Measured Regulation

The thinking behind the EU’s approach seems to be highly influenced by campaigners who depict the use of the technology as 'Orwellian' to induce public  fear, regardless of the context in which it is used. It appears to be a knee-jerk reaction, rather than an evidence-based response. The UK’s current practice and legal framework certainly have some loopholes to close. For instance, the technology could potentially be used for all crimes today, regardless of the seriousness of the crimes in question. But addressing these kinds of details does not entail suspending the use of the technology or entirely prohibiting it. Neither does it requires unnecessarily restricting it. Any legislative effort that aims to strike a delicate balance between the societal benefits and risks of the technology should take an incremental approach, that allows for timely response to evolving risk based on actual evidence of harm than conjecture. Starting with the strictest regulatory framework, uninformed by evidence could needlessly deny society of the benefits of the technology.

 

Taking Rights Away Seriously: the Council’s position on the long-term residents Directive

 

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 23, which was not made public at the time. Update, November 29: the text is now public. 

 

Personal scope: who is covered?

The current law on EU long-term resident (LTR) status excludes from its scope: students; people who have obtained or applied for temporary protection or a purely national form of protection; asylum-seekers; those who reside ‘solely on temporary grounds such as au pair or seasonal worker, or as workers posted by a service provider for the purposes of cross-border provision of services, or as cross-border providers of services or in cases where their residence permit has been formally limited’; and diplomats as defined by the relevant international treaties. As a result of Brexit, British citizens in the EU implicitly moved within the scope of the EU LTR law once their EU citizenship ceased due to Brexit. (The CJEU has confirmed this loss of EU citizenship).

The Council version has accepted the Commission’s proposal to drop the exclusion of those whose ‘residence permit has been formally limited’, on the grounds of imprecision: according to the Commission proposal’s explanatory memorandum, ‘its interpretation led to legal uncertainty in the transposition and implementation by Member States’. Indeed, the relevant CJEU case law (Singh) is rather vague – establishing that the ‘formally limited’ exception is different from the ‘temporary grounds’ exception and has a common EU meaning, but not clearly explaining what that common meaning is.  

The rest of the exclusions remain intact, and the Council version seeks to exclude more groups explicitly: intra-corporate transferees and those whose expulsion is suspended, and adding ‘job search’ as an example of a group excluded by the ‘temporary grounds’ exception. (Note that the CJEU has ruled that this exception does not exclude non-EU family members of EU citizens who have not left their Member State of nationality – a group known to EU lawyers as Zambrano cases – from the scope of the EU Directive).

These exclusions are obviously important in particular to millions who fled the Russian invasion of Ukraine and obtained temporary protection in the EU (see discussion of EU temporary protection for them here). However, as discussed next, this is not quite the end of the story: there is an issue of whether and how to consider the time spent on the territory as part of an excluded group, if the person concerned is subsequently allowed to stay on a basis which is not excluded from the scope of the Directive.

 

Obtaining the long-term residence right

The five year waiting period

The current law requires Member States to grant EU long-term residence status to non-EU citizens ‘who have resided legally and continuously’ on the territory for five years before submitting an application. It is necessary to apply in order for the status in order to obtain it (see Iida): unlike status under free movement law, EU LTR status for non-EU citizens is not conferred automatically once the conditions are met. There are currently no exclusions from the five-year waiting period for family members (see the Tahir case). The 2022 proposal retains the five-year rule, although a new review clause would require the Commission to report two years after the deadline to apply the new law on the prospects of shortening the waiting period, and there would be an exception for some family members as well as a shorter waiting period following a move to another Member State, both discussed below. (The Council version has accepted the changes on future reports and second Member States, but – spoiler! – rejected the change on family members).

There are some further rules about calculation of this five-year time period. For those excluded from the scope of the current law, it provides that no account should be taken of time spent on the territory under the temporary grounds/formally limited exception, or as a diplomat. Half the period spent as a student must be taken into account, if the student goes on to obtain a different residence permit which can qualify for LTR status. Similarly, if an asylum-seeker obtains refugee or subsidiary protection status, at least half the time spent as an asylum-seeker must be taken into account; if the asylum-seeker had to wait more than 18 months after the application was lodged to obtain either form of international protection, all that time counts. The text is silent on how to count time spent on the territory for people who have obtained or applied for temporary protection or a purely national form of protection.

Those with refugee or subsidiary protection status that has been revoked, ended or was not renewed under the terms of EU asylum law cannot qualify for EU LTR status. Finally, as regards absences from the territory during the five-year qualification period, those absences still count towards the five-year period if they are ‘shorter than six consecutive months and do not exceed in total 10 months within’ the five years. Member States may also count longer absences if their national law provides, for ‘specific or exceptional reasons of a temporary nature’, although they have to stop the clock during these longer absences (unless the longer absences are due to ‘secondment for employment purposes, including the provision of cross-border services’, in which case they may count the longer absence fully if they wish).

The 2022 proposal would make four changes to these rules. First, there would be a new general requirement to monitor the stay of non-EU citizens before the five year period, in particular those who got their residence permit on the basis of investment. The Council version includes a vaguer version of this clause, with no specific reference to investment.

Secondly, there would be a new right to cumulate residence in multiple Member States, provided that the last two years before the application for LTR status were spent in the Member State where the application is made. This builds on existing possibilities in EU law for cumulation of residence for select groups of non-EU citizens (for Blue Card holders, ie highly skilled workers admitted under an EU scheme). However, Member States would have to exclude counting time spent in another Member State by a non-EU citizen who obtained a residence permit due to investment in a different Member State.

The Council version has accepted the cumulation right in principle, but has curtailed it significantly. It would require the last three years to be spent in the Member State of application, and would only allow a total of two years in another Member State to be cumulated. Most significantly, the right would only apply to selected groups: Blue Card holders; holders of national residence permits for highly-skilled workers, if they were allowed to move between Member States; intra-corporate transferees and researchers as defined by EU law; and family members of any of these groups, or of long-term residents themselves. The preamble vaguely suggests that EU citizens’ non-EU family members could cumulate time periods in multiple Member States too; but the details of this should really be placed in the main text. There is also a vague preambular clause on British citizens, saying that time spent under free movement law and the withdrawal agreement should be cumulated; again it is not clear if the free movement law point applies to multiple Member States. Anyway including Blue Card holders is a Potemkin village: the revised Blue Card Directive already contains essentially more generous rules on this issue for them. Also, the Council version would defer the actual application in practice of the cumulation rules, until the Commission and Council had worked out the logistics of cumulation.

Thirdly, in the 2022 proposal, the rules on counting five years’ residence would change for those who previously resided on the basis of a status excluded from the scope of the LTR law. It would be explicit that ‘[a]ny period of residence spent as a holder of a long-stay visa or residence permit issued under Union or national law, including’ periods spent on the basis of temporary or national protection, as a student, or on a temporary basis, counts towards the five year period, as long as a more long-lasting form of residence status has been obtained later. This would definitely improve the position of those who previously resided as students or on a temporary basis, and arguably confirm the existing position of those with temporary or national protection – potentially important for millions of temporary protection beneficiaries, among many other groups of people. However, the current rule of taking into account only [at least] half the period spent as an asylum-seeker (or all of the period if it takes 18 months to get refugee or subsidiary protection status) would be retained.

The Council version of this is mostly much more restrictive. Previous time on the territory as one of the excluded groups of people, in the event of being allowed to stay on a more permanent basis afterward, would only count for intra-corporate transferees; it would only be an option to count it as regards former students. Implicitly it would not be possible for the other groups. This definitely reduces standards as compared to the current law for students, and arguably for temporary protection beneficiaries too.

On the other hand, the Council version would improve the position for refugees and subsidiary protection beneficiaries, copying an agreement reached during negotiations on asylum law. All the time previously spent as an asylum-seeker would count, although if beneficiaries of international protection were on the territory of another Member State without authorisation, the clock would be reset and they would have to start accumulating five years’ residence from scratch, unless they were in that second Member State due to circumstances outside their control.

Finally, a new clause on family members, discussed further below, would allow for the right to LTR status for the children of EU LTRs who are born or adopted on the territory of the Member State which granted the LTR permit, without waiting for the five-year period. An application for LTR status would still be necessary. However, the Council version refused to accept this; although it is possible to adopt ‘more favourable provisions’ for the family members concerned as an option, it is not clear if that can extend to obtaining LTR status early.

  

Other conditions

First of all, the EU LTR law requires Member States to ensure that non-EU citizens have ‘stable and regular resources’ and ‘sickness insurance’ in order to obtain LTR status. The ‘resources’ requirement is further defined; such resources must be:

…sufficient to maintain himself/herself and the members of his/her family, without recourse to the social assistance system of the Member State concerned. Member States shall evaluate these resources by reference to their nature and regularity and may take into account the level of minimum wages and pensions prior to the application for long-term resident status;

The current law defines the ‘sickness insurance’ requirement to cover ‘all risks normally covered for his/her own nationals in the Member State concerned’.

In the 2022 proposal, the sickness insurance requirement would not be modified as such, but the resources requirement would be amended to state that the resources can be ‘also made available by a third party’, and that ‘Member States may indicate a certain sum as a reference amount, but they may not impose a minimum income level, below which all applications for EU long-term resident status would be refused, irrespective of an actual examination of the situation of each applicant.’ (There would also be new rules on comparison with applications for national LTR status, what happens if an applicant already has national LTR status, and an exemption for certain family members; these issues are discussed further below).

The first of these amendments reflects the CJEU case law on the resources requirement. In the X judgment, the Court ruled that the resources rule was an autonomous rule of EU law, not defined by national law, and that the resources could be provided by third parties (in that case, a brother of the applicant for LTR status). It was nevertheless important that the resources be ‘stable’ and ‘regular’, as the EU law requires; in that context, the relationship with the family member, and whether the support was based on a legal requirement, could be relevant.  

However, the Council version would again reduce standards below the level of the current law, as interpreted by the CJEU; the (qualified) obligation to take account of the resources supplied by third parties (such as family members) would only be an option for Member States.

In the current law, Member States also have an option to require compliance with ‘integration conditions’ in order to obtain EU LTR status. The 2022 proposal would not alter this optional obligation (except as regards comparison with rules for national LTR status and exemptions for family members, both discussed below). There is CJEU case law that indirectly addresses these requirements: P and S, discussed here, in which the Court ruled that an integration requirement imposed after getting LTR status was acceptable, subject to being proportionate. The Council’s position would alter the current law by stating that integration conditions may in particular concern learning the national language of the Member State; but this reflects how integration conditions are applied in practice anyway. (The preamble of the 2022 proposal also refers to language acquisition).

Next, Member States may reject applications on grounds of public policy and public security, subject to the requirement that:

When taking the relevant decision, the Member State shall consider the severity or type of offence against public policy or public security, or the danger that emanates from the person concerned, while also having proper regard to the duration of residence and to the existence of links with the country of residence

The 2022 proposal would make no change to this provision. Note that it has been the subject of case law: the CJEU ruled in 2020 that a prior criminal conviction cannot automatically exclude a non-EU citizen from obtaining EU LTR status; there must be a ‘specific assessment’ of each applicant, taking into account the offence committed, the degree of risk to public policy and security, the length of residence and the strength of links with that State. 

Finally, the 2022 proposal would delete an odd provision in the current law, which states that in the process of applying for LTR status, the evidence submitted to show that the non-EU citizen meets the conditions to obtain LTR status ‘may also include documentation with regard to appropriate accommodation’. It is not clear if this allows Member States to impose a further requirement for the applicant to show that he or she has adequate accommodation; but if the clause is deleted, the point is moot. But the Council version would retain it, clarifying it to state that the evidence regarding accommodation would be part of the assessment of the resources requirement.

 

The application process and procedural rights

The 2022 proposal would retain the current rule that a Member State should decide on an application for EU LTR status within six months. However, the possibility of extensions in ‘exceptional’ cases would be dropped, replaced by a clause providing for the authorities to request further information if they need clarification relating to an application. There would be a new rule for those who already have national LTR status (discussed further below). The Council version would keep the possibility of exceptional extensions, albeit limiting it to a 60-day maximum.

As for procedural guarantees, the current law requires reasons to be given for refusing applications or withdrawing status, notification of decisions (specifying redress procedures and time limits), and the right to ‘mount a legal challenge’ to rejections of applications, or withdrawals, loss or non-renewal of EU LTR status.

There would be an ostensibly new rule on fees, providing that while Member States may require fees for handling applications for EU LTR status, those fees ‘shall not be disproportionate or excessive’. In fact this reflects CJEU case law (see Commission v Netherlands and CGIL and INCA).

As regards both fees and procedural guarantees (including time limits to decide on applications), Member States would have to extend any more favourable treatment which they accord to holders of or applicants for national LTR status to applicants for or holders of EU LTR status (see further below). However, the Council version would drop this requirement as regards time limits.

 

Equal treatment rights

The current law provides that EU LTRs are entitled to equal treatment with nationals as regards: access to employment and self-employment (with an exception for activities involving ‘public authority’); working conditions; education and vocational training, including study grants; recognition of professional qualifications; social security, social assistance and social protection, as defined by national law; tax benefits; access to goods and services, including procedures for obtaining housing; freedom of association; and access to the territory of the Member State granting LTR status. However, Member States can impose a residence condition for the LTR or his/her family members for some aspects of equal treatment. They can also limit access to employment or self-employment where existing rules only give access to EU citizens, and impose language or educational requirements as regards access to education. Moreover, they can limit access to social assistance and social protection to ‘core benefits’. The equal treatment rules are ‘without prejudice’ to EU asylum law, as regards refugees and people with subsidiary protection (and their family members); and Member States have the right to set higher standards.

The new proposal would amend the equal treatment rules to: define social security by reference to EU law; add access to private housing; drop the possibility of a residence condition for family members; eliminate the ‘core benefits’ exception; provide for benefits if an LTR moves to a non-EU country; and require the extension of any more favourable national rules for national LTRs to those holding EU LTR status. The Council version rejects the proposals as regards private housing or residence conditions for family members, but accepts the others.

This should be seen in light of the CJEU case law on the equal treatment clause, which has: limited the use of the ‘core benefits’ clause (Kamberaj, which interpreted the exception strictly in light of the EU Charter of Fundamental Rights and said that it could not be used to exclude equal treatment for housing benefit, or apply if a Member State had not declared its intention to use it; see also the KV judgment); provided for family members to get benefits despite not being resident (INPS, where the Court again also adds a condition of the Member State expressing its intention to use the exception); and ruled that a lack of equal treatment as regards a family discount card is in breach of the requirement of non-discrimination for access to goods and services (ASGI, again referring to the condition of a Member State stating an intention to derogate).

 

Loss of status and expulsion

The current law requires Member States to remove LTR status in the event of its ‘fraudulent acquisition’, following an expulsion measure, or due to absence from EU territory of 12 months. But Member States have an option to allow longer absences in general, or for ‘specific or exceptional reasons’. There is an option to remove LTR status where the person concerned is a ‘threat to public policy’ that falls short of the grounds for expulsion. Member States may also withdraw LTR status for people who have lost international protection status in accordance with EU asylum law. LTR status in one Member State is also lost once another Member State has granted it, or after six years’ absence from a single Member State’s territory; a Member State may allow such LTR status to stay after six years’ absence for ‘specific reasons’.  Where LTR status is lost due to absence, a Member State must provide a facilitated procedure to get it back, ‘in particular’ for those who moved to another Member State to study; the process and details of this are left to national law. If LTR status is lost but the former LTR is not removed, a Member State must allow the former LTR to stay if they meet the conditions to stay under national law (on which, see the 2019 YZ judgment).

The 2022 proposal would change these rules to refer to a ‘decision ending the legal stay’ instead of expulsion or removal (to match the wording of the EU Returns Directive), and allow an absence from the EU of 24 months, not 12. However, the option to permit longer absences than that would be limited to cases of ‘specific or exceptional reasons’. The facilitated process to get LTR status back would no longer be left to national law; there would be a mandatory exemption from integration requirements and optional exemptions from the waiting period and resources and sickness insurance conditions. (The Council version would set a three-year time limit on the mandatory exemption from integration requirements)

Note that a recent judgment of the CJEU, discussed here, interpreted the 12-month absence rule generously, providing that a return for a few days during that period could interrupt the absence and so start the clock on the 12-month period anew. Presumably that would apply equally to the longer 24-month period of absence now being proposed. On the other hand, the YZ judgment was less generous as regards fraud, ruling that LTR status could be lost even if the applicant was unaware that the documentation was fraudulent.

Again, the Council version would be (overall) less generous than the current law, as interpreted by the CJEU. Its version would provide for the loss of LTR status in the event of not having the ‘main residence’ in the EU, either for 18 consecutive months, or for 18 cumulative months in one of the five year periods since the LTR permit was first granted. Member States would have an option to be more generous. And current standards would also be lowered by making it mandatory to remove LTR status where the person concerned is a ‘threat to public policy’ that falls short of the grounds for expulsion.

As for expulsion, the current law provides that Member States can ‘solely’ expel an EU LTR where there is ‘an actual and sufficiently serious threat to public policy or public security’. This decision ‘shall not be founded on economic considerations’, and Member States must consider the duration of residence, the age of the LTR, the consequences for the LTR and family members, and the links with the Member State and the country of origin. There must be judicial redress against expulsion, legal aid must be granted ‘on the same terms’ as nationals, and there are special rules if the LTR has international protection.

The 2022 proposal would amend these rules only as regards cross-references to the Returns Directive. CJEU case law is relevant here: the Court has confirmed that a criminal conviction is not sufficient by itself to justify expulsion, but that the various factors listed in the law must be fully taken into account (Lopez Pastuzano, discussed here; WT; see also Ziebell).

 

Family members

A wholly new clause in the 2022 proposal contains a number of special rules for family members. First, children of EU LTRs born or adopted in the territory could obtain LTR status immediately following an application, waiving the waiting period and the resources, sickness insurance and integration rules. Second, family members of EU LTRs would only have to comply with integration requirements in the family reunion Directive after family reunion has been granted. Third, the application of EU LTRs’ family members would be fast-tracked, and they would benefit from some of the procedural rights in the proposed LTR law. Next, family members of EU LTRs would be exempt from labour market tests as regards access to employment. Finally, any more favourable rules for family members of national LTRs relating to these issues must be extended to family members of EU LTRs.

The Council version would gut almost all of this part of the proposal. There would be no early or simplified acquisition of LTR status for those born or adopted on the territory – only residence permits issued on the same basis as family members who were admitted from another country. There would be no deferral of integration requirements until after family reunion was granted, and no equal treatment as regards family members. The time limit to decide on applications would be cut from nine months to six months, but not 90 days as the Commission proposed. Only the immediate access of family members to the labour market remains unscathed.  

 

Relationship with national LTR status

A key feature of the existing and proposed EU LTR law is that the EU law does not fully harmonise national law on LTR status: it sits in parallel to it. Under the current law, Member States may still issue national LTR permits on a ‘more favourable basis’ than the EU rules; but such permits do not confer the right to move to other Member States, as confirmed by the CJEU in the Tahir case.

Under the proposal, the capacity to issue national long-term residence permits is retained, but the reference to ‘more favourable conditions’ for them would be dropped. This is because the proposal would require non-discrimination between national law on LTR status and EU LTR status in a number of areas. (This approach to the relationship between EU and national immigration law was pioneered in the recent revision of the Blue Card directive for highly-skilled workers: see discussion here).

In particular, Member States would have to extend to applicants for EU LTR status any more favourable rules relating to applicants for national LTR status as regards resources, integration conditions, procedural guarantees (including time limits to decide on applications), fees for applications, equal treatment, and family members. The Council version only accepts some of this, though: it would retain only equal treatment as regards procedures (but not time limits), fees, and equal treatment.

A separate issue is the relationship between national and EU LTR status. Can both types of status be held, or do non-EU citizens have to choose between one or the other? The current law is not explicit on this issue – and neither is the 2022 proposal. Member States have interpreted it differently in practice, and the case law has not addressed the point yet.

The 2022 proposal addresses the link between the two from a different angle, providing that if an applicant for an EU LTR status already has a national LTR status, the applicant is exempt from the conditions of resources, sickness insurance and integration, provided that ‘compliance with those conditions was already verified in the context of the application for the national residence permit’. But this does not tell us whether the application for EU status can come in addition to national LTR status, or must be a replacement for national status, or whether Member States can choose which of those two approaches they prefer. (It does necessarily mean that holding national LTR status cannot rule out applying for EU LTR status in future). In any event, the Council version of this clause weakens it considerably, providing that Member States only have an option not to require the application of the resources and sickness insurance requirements in such cases; and there is no provision to drop the integration condition.

 

Movement between Member States

The current law provides that EU LTRs can move to other Member States on grounds of ‘exercise of an economic activity in an employed or self-employed capacity’, ‘pursuit of studies or vocational training’ or ‘other purposes’. The 2022 proposal retains this basic clause.

However, the current law allows for limits on the right. Member States can apply a labour market or preference test for those EU LTRs who move for the purposes of employment or self-employment. They can also retain pre-existing quotas on the number of non-EU citizens who move to their territory. The 2022 proposal would delete both of these limits; but the Council version would retain the possible labour market or preference test.

Some groups of workers are excluded from the scope of the current (and proposed) law: EU LTRs posted by their employer to perform services, or who provide services themselves; those moving as seasonal workers (Member States can decide the conditions for this group under their national law); and cross-border workers (who can similarly be ‘subject to specific provisions of national law’).

Conditions for moving

The EU LTR has to apply for a residence permit in the second Member State within three months of arrival. Under the current law, each Member State has an option to consider applications made while the LTR is still living in the first Member State; the proposed law would require Member States to consider such applications. The Council version would keep this as an option only.

The second Member State may require ‘stable and regular resources’ and sickness insurance as a condition for the LTR to get a residence permit there. This differs from the obligation for the first Member State to impose such requirements before LTR status is obtained there (as discussed further in the first blog post). The wording of these conditions is otherwise currently identical to the wording which applies to the conditions to get LTR status in the first Member State.

The 2022 proposal adds that the resources can be ‘also made available by a third party’, which matches the proposed amendment to the conditions for getting LTR status in the first Member State, which takes account of the case law on the latter point. However, the 2022 proposal does not match the proposal to add other new wording to the conditions for getting LTR status in the first Member State, on use of a reference amount, but not a minimum income level which applies automatically. The Council version would add this wording, and also drop the proposed requirement to consider third party resources.

The second Member State has an option to require an LTR to comply with integration measures before getting a residence permit. The wording here is different from the rules on getting LTR status in the first Member State, where the law refers to an option to require compliance with integration conditions. The second Member State cannot require compliance with integration measures if the LTR has already complied with integration conditions in the first Member State. However, the Council version would yet again reduce standards compared to the current law, by dropping this limit on Member States.

Member States may require documentation as regards employment (ie some form of proof of being hired), self-employment (a funding requirement), or studies. The 2022 proposal would delete an unclear reference to providing evidence of accommodation, matching a deletion of the similarly unclear clause relating to applying for LTR status in the first Member State. The Council version would retain the clause on accommodation.

New provisions in the 2022 proposal would address two important points: EU LTRs would have equal treatment with EU citizens as regards recognition of professional qualifications; and an EU LTR must be allowed to start work or study in the second Member State no more than 30 days after submitting a complete application for a residence permit. But the Council version would only provide an option for Member States to let the LTR begin work after submitting an application.

Family members

Core family members who already lived with the EU LTR in the first Member State must be admitted to the second Member State. Extended family members may be admitted. If the family members did not already live with the EU LTR in the first Member State, the EU’s family reunion Directive applies. The Council version would drop the obligation in the 2022 proposal to consider third party resources when assessing their applications.

A separate new provision on family members in the 2022 proposal would allow them, when applying for an ‘autonomous residence permit’ from the sponsor they are joining under the family reunion Directive, to cumulate residence in different Member States, as long as the last two years were spent in the second Member State. But the Council version would drop this.

Exceptions: public policy, public security and public health

The second Member State has an option to refuse the LTR a residence permit on grounds of public policy or public security. As with the conditions for getting LTR status in the first Member State, the second Member State must assess the severity and type of offence committed by the person concerned; but conversely there is no requirement to assess the duration of residence or links with the country of origin, and no rule against founding a refusal on ‘economic considerations’.

As for public health, the 2022 proposal (also accepted in the Council version) would replace the current law with a cross-reference to the Schengen Borders Code, which defines a ‘threat to public health’ slightly differently, as:

any disease with epidemic potential as defined by the International Health Regulations of the World Health Organization and other infectious diseases or contagious parasitic diseases if they are the subject of protection provisions applying to nationals of the Member States.

Procedural rights

Currently national authorities in the second Member State must make a decision on the LTR’s application for a residence permit within four months. If the documentation is incomplete, or in ‘exceptional circumstances’ due to the complexity of the application, they have a further three months. The 2022 proposal would cut these deadlines to 90 days and 30 days respectively; but the Council version would set them at four months and 60 days.   

Otherwise procedural rights are very similar to those applicable when applying for LTR status in the first Member State: giving reasons; notification; information on redress and time limits to seek it. But this only applies to rejection of applications, not to withdrawal of status. There is a right of legal redress in the case of rejection, withdrawal or non-renewal. However, there is no reference to equal treatment as compared to applicants for residence permits under national law, and no express reference to fees, although the CJEU case law has confirmed that any fees for residence permit applications in the second Member State must be proportionate: Commission v Netherlands.

Equal treatment

The second Member State must guarantee equal treatment for the LTR who has moved there, once the LTR has received a residence permit, by cross-reference to the rules on equal treatment of LTRs in the first Member State (see discussion above). So the case law applicable to that equal treatment rule, and the proposed amendments to that rule (if agreed) necessarily apply in the second Member State too. The 2022 proposal would extend this to family members of the LTR, replacing a cross-reference to the weaker provisions of the family reunion Directive. It would also delete the power for Member States to limit changes of employer by LTRs in the first year. (There would be an option for Member States to impose an obligation to notify changes of employer instead). However, Member States would still have discretion to limit access to employment or self-employment by students or those who move for other reasons. The Council version would drop both proposed amendments.

Withdrawal or loss of status

Before the LTR obtains LTR status in the second Member State, that Member State can expel the person concerned to the second Member State for breaching the conditions set out in EU law for holding the residence permit there (as discussed above). The first Member State must take that person back. Under the 2022 proposal, references to national law are replaced by references to the EU’s Returns Directive instead. Also, the option for the second Member State to expel the non-EU citizen from the EU entirely on ‘serious grounds of public policy or public security’ would be removed. The Council version agrees with these amendments.

 

Obtaining LTR status in the second Member State

Under the current law, the LTR who has moved to the second Member State can obtain LTR status in that Member State, subject to all the same conditions and procedural rules that apply to obtaining LTR status in the first Member State. Therefore all the case law on the latter rules, and all the proposed amendments to them (if agreed) necessarily apply too.

The 2022 proposal suggests speeding up this process, allowing the LTR to get LTR status from the second Member State after only a three-year wait, instead of the usual five years. However, before the five-year period, the second Member State is not obliged to grant ‘social assistance, or maintenance aid for studies, including vocational training, consisting in student grants or student loans’ to LTRs other than ‘workers, self-employed persons, and their family members’. A Member State can opt to be more generous, on condition that it is also more generous to EU citizens in the same circumstances. But Member States could also opt to end the stay of LTRs who are workers or self-employed people between three and five years if they cease to satisfy the ‘sufficient resources’ or ‘comprehensive sickness insurance’ requirement. Remarkably the Council version accepts this reduction in the usual five-year waiting period.

Finally, while refugees and those with subsidiary protection are entitled to qualify for EU LTR status and move to another Member State, and there are some provisions relevant to their particular situation, neither the current law nor the 2022 proposal provides for the transfer of their international protection status.

 

Comments

The Commission’s proposal would have opened up EU LTR status to more people, making it harder to lose and giving holders more rights. The European Parliament position (which I have not discussed here) goes further on these points. But the Council position not only rejects most of the Commission’s (and necessarily the Parliament’s) proposals; on the whole, it actually goes backwards compared to the current law.

In particular, the Council would take rights away as regards: exclusion of further groups of people (although arguably they are just specific examples of the current ‘temporary grounds’ exception); former students and (arguably) former temporary protection beneficiaries obtaining LTR status; taking account of third parties’ contribution to resources (arguably a reduction of rights also when moving between Member States); adding a ‘main residence’ requirement to retain LTR status in the event of absence; and allowing Member States to require compliance with integration standards again when moving to another Member State.

The Council would reject improvements as regards: cumulation of residence in multiple Member States for most people; former students and former ‘temporary grounds’ residents obtaining LTR status; extensions to the period to decide on an application (although they would be limited in time); equivalence in time limits with national LTR status; some improvements to the equal treatment rules; family members obtaining LTR status early, delaying integration requirements, or equality with national LTR children; the accommodation requirement (including in second Member States); equality with national LTR applications as regards resources, sickness insurance, and integration requirements; simplified EU LTR applications for those who already have national status (except for purely optional simplifications); dropping labour market or preference requirements for moving between Member States; simplification of applications to move to another Member State; starting work or study early in another Member State; family members cumulating residence in different Member States to obtain autonomous residence; (most of) the reduced time limits to decide on applications for LTRs to obtain residence permits in a second Member State; and improvements to equal treatment in a second Member State .

Finally, the Council would admittedly accept improvements as regards: dropping the ‘formally limited’ exception; allowing cumulation of residence in multiple Member States for some people (although this is not an improvement for most Blue Card holders); refugees and people with subsidiary protection obtaining LTR status; some aspects of the equal treatment rules; facilitated access to reacquisition of LTR status (with limits); family members’ labour market access; equality with national LTR applications as regards procedures, fees, and equal treatment; dropping quotas on movement to another Member State; expulsion out of the EU from a second Member State; and a shorter waiting period to obtain LTR status in the second Member State.

The biggest of these three lists is of proposed improvements which the Council has rejected. While the length of this list is a disappointment, from the perspective of the EU’s stated goals of improving equality and integration, at least (potential) long-term residents are no worse off than they are at the moment.

The other two lists – new rights the Council has agreed to, and existing rights the Council would remove – may look similar in quantity. But they are not qualitatively similar. For the key rights the Council would remove concern how soon people can become long-term residents in the first place, potentially in practice even preventing them from becoming LTRs at all (depending on the length of their subsequent legal stay on other grounds). The removal of rights which the Council desires would also make it easier to lose LTR rights and harder to obtain them in a second Member State.

Of course, it is possible that the European Parliament may ride to the rescue during trilogue negotiations. But will it? The Council may reject any attempt to improve current standards, considering the loss of its desires to reduce those standards an acceptable price to pay as long as standards are not improved. Or the Parliament may be willing to agree to reduce its ambitions, or even reduce current standards, given its desire to agree laws in this field before its next election, in order to avoid the next Parliament, in the event of a shift to the right in the next elections, agreeing with the Council’s more restrictive views – or even pushing the Council towards trashing even more of the current Directive. As with EU asylum law, the European Parliament is haunted by the Ghost of Parliament Future.

 

See also

Report of the EU Fundamental Rights Agency

ECRE policy paper