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Friday, 13 May 2022

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

 



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