Sunday, 15 May 2022

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


 


Professor Steve Peers, University of Essex

Photo credit: Rept0n1x, via Wikimedia commons

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

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

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

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

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

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

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

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

 

Movement between Member States

Who can move – and on what grounds?

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

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

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

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

Conditions for moving

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

The second Member State may require ‘stable and regular resources’ and sickness insurance as a condition for the LTR to get a residence permit there. This differs from the obligation for the first Member State to impose such requirements before LTR status is obtained there (as discussed further in the first blog post). The wording of these conditions is otherwise currently identical to the wording which applies to the conditions to get LTR status in the first Member State, but in the absence of case law it is not yet confirmed that the CJEU would interpret the rules the same way.

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

The second Member State has an option to require an LTR to comply with integration measures before getting a residence permit. The wording here is different from the rules on getting LTR status in the first Member State, where the law refers to an option to require compliance with integration conditions. There’s no case law to clarify what difference the different wording makes (if any); but in any event, the second Member State cannot require compliance with integration measures if the LTR has already complied with integration conditions in the first Member State.

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

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

Family members

Core family members who already lived with the EU LTR in the first Member State must be admitted to the second Member State. Extended family members may be admitted. If the family members did not already live with the EU LTR in the first Member State, the EU’s family reunion Directive applies.

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

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

Exceptions: public policy, public security and public health

The second Member State has an option to refuse the LTR a residence permit on grounds of public policy or public security. As with the conditions for getting LTR status in the first Member State (see part 1 of this blog post), the second Member State must assess the severity and type of offence committed by the person concerned; but conversely there is no requirement to assess the duration of residence or links with the country of origin, and no rule against founding a refusal on ‘economic considerations’.

As for public health, there is no condition as regards obtaining LTR status in the first Member State. However, the second Member State may, under the current law, refuse applications on public health grounds. The text further specifies that:

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

The 2022 proposal would replace this with a cross-reference to the Schengen Borders Code, which defines a ‘threat to public health’ slightly differently, as:

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

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

Procedural rights

Currently national authorities in the second Member State must make a decision on the LTR’s application for a residence permit within four months. If the documentation is incomplete, or in ‘exceptional circumstances’ due to the complexity of the application, they have a further three months. The 2022 proposal would cut these deadlines to three months and one month respectively. But the separate change suggested by the proposal – the right to take up employment or study within 30 days of submission of the application – would mean that these deadlines matter less in practice.   

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

Equal treatment

The second Member State must guarantee equal treatment for the LTR who has moved there, once the LTR has received a residence permit, by cross-reference to the rules on equal treatment of LTRs in the first Member State (see discussion in part 1 of this blog post). So the case law applicable to that equal treatment rule, and the proposed amendments to that rule (if agreed) necessarily apply in the second Member State too. The 2022 proposal would extend this to family members of the LTR, replacing a cross-reference to the weaker provisions of the family reunion Directive. It would also delete the power for Member States to limit changes of employer by LTRs in the first year. (There would be an option for Member States to impose an obligation to notify changes of employer instead). However, Member States would still have discretion to limit access to employment or self-employment by students or those who move for other reasons.

Withdrawal or loss of status

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

 

Obtaining LTR status in the second Member State

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

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

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

 

Comparisons with free movement law

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

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

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

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

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

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

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

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

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

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

 

Comments

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

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


See also

Impact assessment for new proposal

2011 report on application of the Directive

2019 report on application of the Directive

5 comments:

  1. Interested in how this would affect me as a UK citizen with NL permanent residence but who is living in an EFTA country under Article 50 now.

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    1. The long-term residence directive does not apply to any EFTA countries. You would have to see if it is possible to obtain EU long-term residence status in the Netherlands (assuming that your permanent residence there is the national version).

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  2. What do you think about the argument that Withdrawal Agreement beneficiaries should automatically have been given the rights associated with LTR status rather than having to apply for them separately?

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    1. Not all of them were resident for five years though? - Steve Peers

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  3. At the moment Handbook for the processing of visa applications and the modification of issued visas (Visa Code Handbook I) contains specific rules relating to applicants who are core family members of a EU citizen regarding a connection to Directive 2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States (Part III of Visa Code Handbook I). It is unclear, if the new proposal gives similar rights to core family members of EU LTR holders to be eligible to a greatly simplified process of visa application review. Today visa officers refuse issuing short-term visas to core family members of national LTR holders due to a risk of illegal immigration on the basis of an existing family link and a strong personal tie in the Member States, while intention to leave the territory of the Member States before the expiry of the visa applied for is not assessed for family members of EU citizens. Will this situation improve, if a non-EU citizen with a national LTR status gets an EU LTR instead?

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