The Council of the EU’s Position on the Return Proposal: Trump-Inspired Approaches Dominate

 

Dr. Izabella Majcher, Independent Consultant

Photo credit: Alamy stock photo

 

On 11 March 2025, the European Commission published a proposal for a Return Regulation intended to replace the 2008 Return Directive. The stated objective of the proposal is to increase the number of people returned, with the Commission regretting that only around 20% of persons issued with a return decision actually leave. As the proposal explains, it seeks to streamline and harmonise return procedures, attributing the perceived ineffectiveness of EU return policy to divergent national approaches. In this spirit, the Commission proposes replacing the directive with a regulation that would establish “modern, simplified and common” procedures. EU institutions have repeatedly asserted that the current return framework is complex and outdated. However, this claim is difficult to verify, as is the assumption that the proposed regulation would effectively increase return rates. This is largely due to the Commission’s failure to conduct a prior impact assessment, despite this being required under its own Better Regulation Guidelines.

On the side of the European Parliament, the draft report on the Commission’s proposal was presented to the Committee on Civil Liberties, Justice and Home Affairs (LIBE) on 11 November 2025, and the Parliament is currently working towards adopting its final position. The other co-legislator, the Council of the European Union, adopted its “general approach” on 8 December 2025, during the Justice and Home Affairs (JHA) Council, alongside its position on the safe third country concept and on a common EU list of safe countries of origin. This JHA Council was the final meeting under Denmark’s Presidency. Denmark—widely known for its restrictive asylum and migration policies—sought to secure Member States’ agreement on these files before the end of its term (for instance, the Council removes the future mandatory character of the mutual recognition of return decision proposed by the Commission, on which the agreement among Member States proved difficult).

While the Commission’s proposal already displays an overall coercive approach and restricts human rights safeguards—as highlighted in a joint statement by over 200 civil society organisations—the Council’s position further erodes existing protections. This non-exhaustive analysis examines ten key measures introduced or reinforced by the Council that are particularly problematic from a human rights perspective.

 

1) Return decision and the risk of refoulement: the Council explicitly allows disregard of the principle of non-refoulement. It provides that authorities should not be precluded from issuing a return decision where there is a risk of refoulement (Art. 7(4a)). In such cases, the return decision should state that removal to the country concerned is postponed under Art. 14(1)(a). Given that a return decision may be enforceable, issuing it despite an identified risk of refoulement engages the State’s responsibility under Article 3 ECHR. Issuing a return decision in such circumstances—irrespective of a possible postponement of removal—may lead to refoulement in practice, for example if the postponement decision is not adopted in time. Moreover, as the suspensive effect of appeals is significantly curtailed (see below (2)), a person may be removed before such a decision is taken. This approach is also questionable in terms of effectiveness: postponement procedures would still need to be carried out, while the person would remain in an irregular situation, thereby undermining the stated objective of increasing return rates.

In practice, this provision appears to facilitate transfers to third countries acting as “return hubs” (see below (9)) during the postponement of removal to the country designated in the return decision. However, the prohibition of refoulement also covers indirect (chain) refoulement. Transfer to an intermediary country does not absolve the sending State of its responsibility under Article 3 ECHR to ensure that the “return hub” offers sufficient guarantees against onward removal to a risk of refoulement.

2) Procedural safeguards and the right to an effective remedy: the proposal further increases the risk of refoulement by weakening procedural safeguards to challenge return decisions. As introduced by the Commission and reinforced by the Council, a return decision need not specify the country of return (Art. 7(4)), while a removal decision may identify more than one country (Art. 4(4b)). This undermines legal certainty and clarity and places an excessive burden on individuals, who may be required to challenge removal in relation to several potential destinations. The proposal foresees a non-refoulement assessment prior to removal, which is particularly important given that a return decision may be issued despite an identified risk of refoulement (see above (1)). Accordingly, where there are indicators that removal would breach the principle of non-refoulement, the person should be referred to an appropriate procedure, including the asylum procedure, or the risk should be assessed in accordance with national law. However, this assessment may be carried out by the same authorities that issued or enforce the return decision, and may be dispensed with entirely where a prior assessment exists or where the relevant information is deemed insufficiently substantiated (Art. 12(3)–(3a)).

Remedies are also weakened. The Council deletes the Commission’s proposal to suspend enforcement of a return decision where there is a risk of refoulement. Automatic suspensive effect is no longer guaranteed; instead, Member States may grant it only upon request (Art. 28(1)). Given the irreversible nature of the harm, Art. 13 ECHR requires automatic suspensive effect where return is challenged on non-refoulement grounds.

3) Grounds for non-return: under the current Return Directive, Member States may grant an autonomous residence permit or other authorisation offering a right to stay for humanitarian, compassionate or other reasons. In such cases, no return decision shall be issued, or an existing decision must be withdrawn or suspended for the duration of the authorisation (Art. 6(4), current Directive). While the Commission retains this possibility (Art. 7(9), Commission proposal)—albeit outside the exceptions to the obligation to issue a return decision in Art. 8—the Council removes it entirely. Its position contains no human-rights-based exception to the obligation to issue a return decision. Yet such exceptions are essential to ensure respect for rights that may prevent removal, including non-refoulement, the right to private and family life, or other circumstances rendering return unlawful or inappropriate, such as serious health conditions. Eliminating the possibility to grant a residence permit in such situations risks violations of international and EU human rights obligations and conflicts with Member States’ own legal frameworks, many of which provide for regularisation mechanisms. Not every person in an irregular situation can be removed. Issuing return decisions in cases where removal would violate human rights is likely to generate litigation and leave individuals in legal limbo—ultimately undermining, rather than enhancing, the effectiveness of return policy.

4) Detention: the Commission’s proposal significantly expands the legal basis for detention. In addition to the two grounds provided under the Return Directive—risk of absconding and hampering return—it introduces three new grounds: “security risks” (see below (8)), determination or verification of identity or nationality, and non-compliance with restrictive measures (see below (5)) (Art. 29(3)). As discussed elsewhere, these grounds are broadly framed and raise serious concerns as to their necessity and justification. The Council further extends this list by allowing detention on “other relevant, necessary and proportionate grounds” to ensure an effective return procedure, as defined in national law. This open-ended clause undermines legal certainty and permits unchecked and potentially arbitrary detention, in violation of the right to liberty.

The Commission also introduces extensive criteria for assessing the risk of absconding, including three criteria establishing a rebuttable presumption and eight criteria for an overall assessment (Art. 30, Commission proposal). The Council expands both lists further, adding undefined criteria under national law (Art. 21a, Council version). This disproportionate approach risks categorising nearly every person in an irregular situation as a potential absconder, thereby transforming immigration detention from an exceptional measure of last resort into a standard tool of migration control, contrary to international human rights standards.

Despite the requirement under international law that immigration detention be as short as possible, the Commission extends the maximum period of detention from 18 months (6 + 12) to 24 months (12 + 12) (Art. 32(3), Commission proposal). This detention period is exceptionally long and unnecessary, particularly given that immigration detention concerns persons who have not committed a criminal offence and who do not benefit from safeguards applicable under criminal law. The Council allows for repeated six-month extensions of the detention period where there is a risk of absconding and a reasonable prospect of removal arises from specific changes in circumstances (Article 32(3a), Council version). Such potentially indefinite detention amounts to arbitrary detention and violates the right to liberty. In addition, the Council clarifies that these detention limits apply per Member State, allowing a new period of detention to be imposed if the person moves to another EU country (Art. 32(3)).

Procedural safeguards are further weakened: the Council reduces the frequency of detention reviews from three to six months and removes the 15-day deadline for an initial judicial review (Art. 33).

5) Cooperation duties and restrictive measures: the Commission’s proposal imposes extensive cooperation obligations and restrictive measures on persons subject to return, which the Council substantially expands. The resulting web of detailed—and at times overlapping—obligations undermines legal clarity and proportionality. The obligation to cooperate (Art. 21) encompasses fifteen categories of obligations, including remaining available to authorities (such as appearing before third-country authorities for the issuance of travel documents or verification of identity or nationality), providing extensive information, and complying with third-country entry requirements, including health-related conditions. The list is open-ended, as it refers to national law. In practice, many of these obligations may be difficult or impossible for individuals to fulfil.

Non-compliance with cooperation duties triggers the mandatory imposition of restrictive measures, including residence requirements, reporting obligations, and other measures under national law (Art. 23(1)). It may also lead to further sanctions, such as refusal of allowances, extension of entry bans up to 20 years, criminal sanctions including imprisonment, or other penalties provided for under national law (Art. 23b(1)). Failure to cooperate also constitutes a criterion for establishing a risk of absconding (Art. 21a(2)(g)), which may in turn justify the imposition of so-called “alternatives to detention for preventing absconding”—including electronic monitoring and measures defined in national law (Art. 23c(1))—as well as detention itself (Art. 29(3)(a)). Moreover, failure to comply with specific cooperation duties is an independent ground for detention (Art. 29(3)(e)).

In practice, virtually any person subject to return may fail to comply with one or more of these extensive obligations and thus become exposed to a cascading set of restrictive measures and sanctions. The breadth of these measures fails to meet the principles of necessity and proportionality and leaves significant scope for arbitrary application.

6) “Investigative measures”: the Council introduces “investigative measures” (Art. 23a), allowing authorities—without the person’s consent—to search persons subject to return, their homes and other relevant premises, and to seize personal belongings, including electronic devices. Such measures may also be further defined under national law. While safeguards are foreseen, such as necessity, proportionality, respect for fundamental rights and access to remedies, the breadth of this provision raises serious concerns. In practice, it would permit police to raid homes, shelters and other premises that accommodate or support persons in an irregular situation, with significant implications for the right to privacy.

7) Entry ban: while the Commission already expands the use and duration of entry bans, the Council amplifies this approach further. The Commission introduces the possibility of imposing an entry ban without a prior return decision where an irregular stay is detected during exit border checks. The Council removes the Commission’s safeguards, namely the requirements that such a ban be justified by the individual circumstances of the case, respect the principle of proportionality, and safeguard the rights of defence. The Council’s position effectively eliminates the rights of defence by allowing an entry ban to be imposed and notified after the person has already left the territory (Art. 10(4)). It further allows the imposition of an entry ban without a prior return decision where a person departs before such a decision is issued (Art. 10(4a)). This raises serious concerns as to how authorities can assume, without any prior assessment, that a person in an irregular situation would not have a right to stay. Crucially, this deprives individuals of any effective remedy, in breach of Art. 47 of the Charter of Fundamental Rights of the EU.

As regards duration, in cases not involving a threat to public order or security, the Commission extends the maximum length of an entry ban from five to ten years, while the Council further increases it to twenty years (Art. 10(6)). Such durations may severely interfere with the right to private and family life under Art. 8 ECHR, particularly for individuals who have established strong personal and social ties in the EU prior to removal. Although the Council retains the possibility to withdraw, suspend or shorten an entry ban in justified individual cases (Art. 11(2)), it significantly restricts individuals’ ability to request such measures (Art. 11(3)).

8) Persons posing “security risks”: the Commission introduces a distinct category of persons subject to return to whom heightened coercive measures may apply: those deemed to pose “security risks” (Art. 16). The Council further expands this already vaguely defined category. In particular, it includes within the notion of a threat to public policy or security and national security persons subject to an alert in the Schengen Information System (SIS), which itself encompasses situations as minor as attempts to circumvent rules on entry or residence. The Council also defers to national law for defining “other security threats,” further diluting legal certainty. Persons falling within this category may be subjected to additional coercive measures, including detention—which may be carried out in prisons and potentially be of indefinite duration—and entry bans exceeding twenty years. This approach blurs the distinction between criminal and migration law, reinforces harmful stereotypes linking migration and security risks, and circumvents the procedural safeguards that apply in criminal proceedings. While States have a legitimate interest in protecting public order and national security, criminal law should apply equally to all persons under a State’s jurisdiction. Using migration law as a substitute for criminal justice undermines fundamental legal principles and the rule of law.

9) “Return hubs”: among the Commission’s so-called “innovative solutions” to increase return rate is the establishment of “return hubs.” The proposal allows Member States to remove individuals to a third country with which they have concluded an agreement or arrangement (Art. 17). The person need not have any link to that country, nor must the country qualify as a safe third country, although certain conditions are envisaged. The Council’s position clarifies that such agreements or arrangements may regulate the modalities of onward return and that detention may result from their implementation (Art. 17(2a)). It also relaxes notification obligations vis-à-vis the Commission and other Member States (Art. 17(3)), reducing transparency and oversight.

While the externalisation of returns may appear attractive to Member States, recent migration arrangements show that such models often entail significant legal challenges, operational difficulties and high financial costs for the outsourcing State. More fundamentally, return hubs raise serious human rights concerns, in particular regarding detention and onward return. States cannot evade their international obligations by outsourcing migration control. Depending on the degree of involvement, responsibility for violations may be attributed to the externalising State, the third State, or both, including through complicity in internationally wrongful acts.

10) Children: the Council reduces child-specific safeguards throughout the proposal. It weakens protections relating to age assessment (Art. 19), the appointment and role of a guardian for unaccompanied children (Art. 20(2)), and legal assistance and representation (Art. 25). The Council also removes the provision in the current Directive (Art. 10(1)) that requires assistance for an unaccompanied child by bodies other than the authorities enforcing return to be granted before issuing a return decision. This safeguard is crucial to ensure that the best interests of the child are properly assessed prior to any return decision. Under international law, children may be returned only where this is in their best interests. The Council further removes schooling from the explicit grounds for extending the period for voluntary departure (Art. 7(1c)). It also deletes the Commission’s proposed exemption of families with children from return to “return hubs” (Art. 17(4)), leaving only unaccompanied children excluded from this measure. Moreover, children are not exempt from newly introduced coercive measures, including cooperation obligations and sanctions for non-compliance (see above (5)), as well as investigative measures (see above (6)).

As regards detention, both the Commission and the Council disregard international standards according to which children should not be placed in immigration detention at all. The expanded detention regime (see above (4)) applies equally to children. The Council further removes the mandatory ex officio review of detention of unaccompanied children (Art. 33(2)) and relaxes requirements concerning conditions and services in detention, including access to education (Art. 35(2)–(3)). These changes are incompatible with the best interests of the child and with children’s rights to liberty and education under the UN Convention on the Rights of the Child.

 

Concluding thoughts

The Council: as this assessment demonstrates, the Council’s position lacks proportionality and opens the door to arbitrary measures. Human rights safeguards are systematically weakened. Even the fundamental, non-derogable prohibition of refoulement no longer prevents the issuance of a return decision. The accumulation of multiple—and at times overlapping—coercive measures, including far-reaching cooperation obligations and sanctions for non-compliance, runs counter to the stated objective of the reform, namely to streamline and simplify return procedures. Moreover, the Council’s frequent deferrals to national law—including on core issues such as grounds for detention, criteria for establishing a risk of absconding, and the definition of a security threat—undermine the very rationale for replacing a directive with a regulation and defeats the goal of harmonisation of return procedures.

Other players: the Council’s position was made possible by the Commission. The Commission has consistently relied on the narrative of a low return rate, while maintaining a taboo on non-return and regularisation, despite having funded multiple research projects that provided evidence on this matter. The Commission’s proposal itself already contained several measures raising serious concerns from a human rights perspective. By advancing this proposal in a context of political polarisation on migration—where centrist parties increasingly adopt right-wing and enforcement-driven approaches—the Commission has fallen short of its role as guardian of the Treaties and defender of the Union’s fundamental values. Attention now turns to the European Parliament, with the hope that its final report will offer a human-rights-compliant position to restore a measure of balance before inter-institutional negotiations begin.

First they came for migrants: the Council’s position reflects the view, advanced by some States, that the European Court of Human Rights—or human rights more broadly—has become excessively protective of migrants in an irregular situation and unduly restrictive of States’ prerogatives to expel them. To be clear, any attempt to narrow the scope or application of human rights conventions in relation to migrants constitutes an attack not only on migrants’ rights, but on the rights of all persons. Once human rights are weakened for one group deemed politically expendable, derogations and qualifications can be expected to follow for others. What is presented as an exceptional response to migration thus risks becoming a broader erosion of the universality and indivisibility of human rights protection.

 

 

Asylum Pact 2.0: the EU moves towards more stringent rules on ‘safe third countries’ and ‘safe countries of origin’

 

Steve Peers, Professor of Law, Royal Holloway University of London

Photo credit: Steve F, via Wikimedia Commons

 

Introduction

The EU’s asylum pact, agreed in 2024, is mostly not fully in force yet; it will largely apply from 12 June 2026. But even before that date, the EU is planning to make its rules more stringent – and even to apply some of them in advance. The prospect of these planned changes moved closer recently, as both the European Parliament and the EU Council, ie Member States’ ministers firmed up their negotiation positions on two separate proposals, and may negotiate an agreed final text of them both in the near future.

This blog post summarises the proposals in their context, and then examines the proposed amendments coming from the EP and the Council, concluding with an assessment of the main issues arising from the negotiations – including the prospect of a ‘Rwanda clause’ in EU law, mirroring the last UK government’s attempt to designate that country as ‘safe’ even for asylum-seekers who had not travelled through it, and the European Parliament’s suggestion to curtail judicial review in a way that would obviously breach the EU’s Charter of Fundamental Rights.

 

Background

The EU asylum pact includes a Regulation on asylum procedures (which I previously discussed here), replacing the current Directive on asylum procedures, dating from 2013, which sets out detailed rules on the processing of asylum applications. These include rules on both supposedly ‘safe countries of origin’ (countries which asylum-seekers originate from) and supposedly ‘safe third countries’ (countries other than the countries of origin, which asylum-seekers ‘should’ apply for asylum in instead).

Variations of these two concepts have existed in EU law for a long time, dating back initially to 1992 in the form of the London Resolutions of Member States’ ministers (see here and here). The concepts then appeared in the initial 2005 asylum procedures Directive, since replaced by the 2013 version of the rules. Although the asylum pact Regulation adopted in 2024 made these rules more restrictive for asylum-seekers, this was deemed insufficient, hence the move to change the rules in the pact already.

 

‘Safe countries of origin’

Current rules

The 2013 rules provide that a country can be considered a ‘safe country of origin’ for non-EU asylum seekers if it meets specified human rights standards, taking account of country of origin information from various sources such as the UNHCR and EU asylum agency. Use of this rule is currently an option for Member States. The rule can only apply if an asylum-seeker is a national of the country concerned, or is a stateless person formerly habitually resident there. Member States must lay down further rules in national law if they use the concept. They must also regularly review the list of countries concerned and inform the Commission of the list.

Unlike the 2005 rules, it is not possible to define a country as safe only in part, either geographically or for selected groups of people, as the Court of Justice has recently confirmed (see here and here). These judgments put a spanner in the works – at least temporarily – of the Italy/Albania arrangements, under which Italy planned to remove to Albania select groups of asylum-seekers who came from a ‘safe country of origin’, which was designated as ‘safe’ for only some groups of people; the asylum-seekers were to remain in Albania while Italy processed their application. In the latter judgment (Alace), the Court of Justice also said that: a Member State had a choice of routes to designate a ‘safe country of origin’ in national law, but its designation must be subject to judicial review; the sources of information used for the designation must be provided to the applicant and to courts; and courts must be able to examine other sources of information.

Defining a non-EU country of origin as ‘safe’ creates a presumption, which can be rebutted by the asylum-seeker if they can show ‘any serious grounds for considering the country not to be a safe country of origin in his or her particular circumstances and in terms of his or her qualification as a beneficiary of international protection’. It is also a ground for fast-tracking the consideration of asylum applications, although the current rule does not specify a time limit to this end (just that it should be ‘reasonable’, and can be exceeded if necessary to examine the application properly). In comparison, the time limit for ‘standard’ asylum applications in the current law is six months (although there are several grounds for extending that deadline).

The ‘safe country of origin’ rule is also one ground for applying a fast-track border procedure to asylum-seekers’ applications; again, such procedures are currently optional. Here there is a specific deadline, namely to conclude the process within four weeks, otherwise the asylum-seeker must be allowed on to the territory, and (as confirmed by Court of Justice case law) released from detention if that was the only ground for it. Finally, Member States may deny suspensive effect appeals in ‘safe country of origin’ cases, although asylum-seekers must have an opportunity to request a court to grant such suspensive effect.

2024 Regulation

Under the 2024 asylum pact Regulation, applicable (as things now stand) to asylum applications made after 12 June 2026, the ‘safe country of origin’ rules become mandatory for Member States. (Most, but not all, Member States were applying them already) The basic definitions of human rights standards in the country of origin remain, as do the rules on the sources of data to be considered. But under the new rules, it will be possible to designate a non-EU country of origin as ‘safe’ in part, either geographically (exceptions for ‘specific parts of its territory’) or for some groups of people (‘clearly identifiable categories’). Conversely, there is nothing to suggest that the other aspects of the Alace judgment (on effective judicial review of designations of ‘safe third countries’) cease to apply.

One new aspect of the rules is that it is possible for the EU to adopt its own common list of ‘safe countries of origin’, via the ordinary legislative procedure. This is accompanied by rules on dropping countries from the list in the event of ‘significant changes’ there, initially by means of a delegated act adopted by the Commission, then via legislation. Member States cannot put the country back on their national list of ‘safe countries of origin’ while a delegated act suspending it from the list applies; for two years after the country is dropped from the common EU list via legislation, Member States need the Commission’s approval to reinstate it on their national lists.

A similar new ground for accelerated procedures has been added: Member States must also fast-track cases where the most recent annual recognition rate for asylum claims for the asylum-seekers’ nationality is below 20% EU-wide at first instance (ie before appeals), ‘unless the determining authority assesses that a significant change has occurred in the third country concerned since the publication of the relevant Eurostat data or that the applicant belongs to a category of persons for whom the proportion of 20 % or lower cannot be considered to be representative for their protection needs, taking into account, inter alia, the significant differences between first instance and final decisions.’

There will now be a specific three-month deadline to decide on accelerated cases, although an authority can decide to consider the asylum application on the merits if the case is too complex. (The general deadline to decide on applications remains six months; the possibilities of extending that deadline have been partly curtailed).

‘Safe country of origin’ remains a ground (alongside now the ‘20% recognition rate’ rule) for considering applications in a border procedure, but that procedure has been overhauled: it is now mandatory for Member States for a certain number of asylum-seekers, provides for a longer period of application (12 weeks, now including appeals), and is subject to more exceptions. In particular, unaccompanied minors can no longer be subjected to it, except where they are ‘national security’ or ‘public order’ risks.

As for appeals in ‘safe country of origin’ cases, it is now the standard rule that they do not have suspensive effect (except for unaccompanied minors in the context of the border procedure), although as before it must be possible for asylum seekers to request suspensive effect from the courts. Some additional safeguards that currently apply to the lack of suspensive effect in border procedure cases have been dropped.

Commission proposal

The Commission’s proposal, dating from April 2025 (see my previous comments here), would first of all allow (as an option) the early application of the revised rules on ‘safe country of origin’, as well as the new ‘20% recognition rate’ rule, in order to provide for the earlier application of the Italy/Albania arrangements; other Member States might have a use for earlier application of the rules too. In fact it would also allow for early application of the partial designation of countries as ‘safe third countries’ too. It will also allow application of the 2024 version of these special rules in the current version of the border procedure (among other things, the 2024 exclusion of most unaccompanied minors from the border procedure will not apply).

Secondly, it would set out a common EU list of ‘safe countries of origin’, as from the entry into force of the Pact: seven named countries (Bangladesh, Colombia, Egypt, India, Kosovo, Morocco and Tunisia) plus candidates for EU accession (Serbia, Montenegro, Albania, North Macedonia, Bosnia-Herzegovina, Turkey, Ukraine, Moldova and Georgia). The accession candidates would be subject to special rules: their listing would switch off if they have been subjected to EU foreign policy sanctions ‘adopted in view of the country’s actions’, or if their recognition rate is above 20% at first instance, or if there is a ‘serious and individual threat to a civilian’s life or person by reason of indiscriminate violence’ in that country (which is one of the grounds for ‘subsidiary protection’ in EU law). It is not certain whether the usual rules on suspending a country from the list also apply to accession candidates, given that a special new category has been created for them. The proposal would list all these countries as a whole, ie not using any of the exceptions for parts of a country or groups of people which the Commission argued were so essential to provide for Member States.

Council position

The recently agreed Council position has taken over most of the Commission proposal. While the Council accepts the early application of parts of the Regulation and the common EU list of ‘safe countries of origin’, including the accession candidate countries (subject to a special rule), it would make a few amendments. (A statement by Hungary objects to having a special rule for accession candidates, preferring to list them automatically without any conditions – although listing them automatically is a special rule in itself)

First of all, the Council position would amend the proposal so that it would be possible to suspend a country partly from a common EU list of ‘safe third country’ or ‘safe country of origin’, on the same basis that Member States can designate a country only partly, ie geographically or as regards groups of people. If a country is partly removed from the common EU list by EU legislation, Member States would not need the Commission’s approval to reinstate that country partly to a national list.  

Secondly, the Council would alter the special conditions applicable to accession countries. The ‘subsidiary protection’ ground for disapplying the status would no longer refer to an ‘individual’ threat, presumably because an assessment is being made of a country as a whole in this context. Also, the foreign policy sanctions ground for disapplying the status would only apply to that country’s actions ‘affecting fundamental rights and freedoms that are relevant for the criteria of designation of a third country as a safe country of origin’ set out in the Regulation. The Council also sets out a procedure for applying these exceptions: the Commission must inform Member States and the Council of the change in status. However, as regards the (quasi-)‘subsidiary protection’ exception, the Commission needs the prior approval of the Council (presumably by qualified majority) before informing Member States of that change. According to the preamble, this is necessary in light ‘of the potential implications for the external relations of the Union and the Member States’ in this scenario.

European Parliament position

The European Parliament’s position (agreed by a committee, and to be reviewed in the full Parliament shortly) is similar to the Council’s. On the first point, the EP agrees that it would, in effect, be possible for countries on the common EU list to be suspended only partly, although it goes into less detail than the Council does.

On the second point, the EP retains the ‘individual’ threat aspect of removing an accession candidate from the common EU ‘safe third country’ list, but also adds that a candidate country should be automatically removed from the list on this ground if the EU’s temporary protection Directive has been applied to that country. This obviously refers solely to Ukraine at present (until March 2027, as things stand). The EP would amend the foreign policy sanctions ground for removal from the list in the same way as the Council.

As for the process, the EP wants the Commission to remove candidate countries from the list by means of a delegated act, rather than by informing the Council and getting the Council’s approval in some cases – although the Council has a role anyway in scrutiny of delegated acts (and in invoking and extending the application of the temporary protection Directive). Using a delegated act – which is, after all, already the usual process set out in the Regulation for suspending a country from the common list – would also give the EP a role in the suspension process.

The EP would also make some amendments to the preamble. One of them, indicating that assessments of the safety of non-EU countries should be ‘accessible’, reflects the Alace judgment. But another amendment to the preamble plainly conflicts with that judgment, purporting that:

…national judicial review should examine the detailed evidence regarding an applicant’s individual situation justifying, in his or her case, the inapplicability of the concept of safe country of origin and not the designation as such.

 

‘Safe third countries’

Current rules

The 2013 rules (again, an option for Member States) provide that a non-EU country can be considered a ‘safe third country’ (the position of EU countries and the associated countries of Switzerland, Norway, Iceland and Liechtenstein is a separate issue) if several criteria are satisfied: no threat to [life or liberty’ on any of the grounds set out in the Refugee Convention; ‘no risk of serious harm’ as defined in EU law as regards subsidiary protection; respect of the non-refoulement principle in the Refugee Convention (ie not sending the asylum seeker to an unsafe country); respect for ‘the prohibition of removal, in violation of the right to freedom from torture and cruel, inhuman or degrading treatment as laid down in international law’; and the possibility ‘to request refugee status and, if found to be a refugee, to receive protection in accordance with’ the Refugee Convention.  

The ‘safe third country’ principle must be ‘subject to rules laid down in national law, including’: rules requiring a ‘connection’ with the other country, ‘on the basis of which it would be reasonable’ for the asylum-seeker to go there; rules on ‘methodology’ concerning the application of the principle to particular countries or applicants; and rules permitting the asylum-seeker to challenge the alleged safety of the country concerned for them, as well as their supposed connection with it.

‘Safe third country’ applications may be considered inadmissible, ie not considered on the merits; but if the supposedly safe country does not permit the person concerned to enter its territory, the Member State must fully consider the merits of their claim. This rule has been confirmed by the Court of Justice, in a case where Greece was breaching it by ruling thousands of claims inadmissible because Turkey was ‘safe’, even though Turkey was no longer readmitting any of the asylum seekers concerned.

A special inadmissibility interview is held, rather than an interview focussed on the well-foundedness of the asylum claim as such. The Directive hints that Member States may have separate time limits for such cases.

As with ‘safe countries of origin’, the ‘safe third country’ rule is another ground to apply a special borders procedure (if Member States opt to do so). Conversely, the suspensive effect of an appeal cannot be denied in ‘safe third country’ cases.

2024 Regulation

The 2024 rules – which remain an option for Member States – are now subject to a definition of ‘effective protection’, in place of an opportunity to request and receive Refugee Convention refugee status: if a non-EU country ‘has ratified and respects’ the Convention, within the limits of any reservations and limitations, that country ‘shall be considered to ensure effective protection’; but if has not ratified the Convention, or applies a geographical limit to it (ie Turkey), that country ‘only’ offers effective protection for people where, ‘as a minimum’, that country allows people to remain, offers subsistence, health care and education, and ‘effective protection remains available until a durable solution can be found’. So even countries which have not ratified the Convention at all can be regarded as offering ‘effective protection’, if they meet these other conditions.

As with ‘safe countries of origin’, it is now possible to regard a country as a ‘safe third country’ only partly, ie ‘with exceptions for specific parts of its territory or clearly identifiable categories of persons’. A country can even be a ‘safe third country’ for an individual applicant. There is a special safeguard for unaccompanied minors:

A third country may only be considered to be a safe third country for an unaccompanied minor where it is not contrary to his or her best interests and where the authorities of Member States have first received from the authorities of the third country in question the assurance that the unaccompanied minor will be taken in charge by those authorities and that he or she will immediately have access to effective protection as defined in [the Regulation].

The law still rules out holding ‘safe third country’ applications to be inadmissible if the other country refuses to admit or readmit the person concerned on to its territory.

There will now be a two-month deadline for deciding ‘safe third country’ applications (and most other inadmissible applications), with a possible extension of up to two months in certain circumstances.

The revised border procedure in the Regulation (described above), also applies to ‘safe third country’ cases. There is also now a new prospect of a common EU list, which works the same way as the possible common list of ‘safe countries of origin’ (and removals from it) described above. Finally, appeals in ‘safe third country’ cases still have automatic suspensive effect.

Commission proposal

The Commission’s proposal, dating from May 2025 (see my previous comments here), would alter the rules as regards the asylum-seeker’s links to the country concerned, so that a ‘connection’ to that country would no longer be the only ground for applying the principle. It could also apply where either the asylum seeker had transited through that country, or a Rwanda-type deal existed with a country that the asylum had neither a connection with nor transited through: ‘there is an agreement or an arrangement with the third country concerned requiring the examination of the merits of the requests for effective protection made by applicants subject to that agreement or arrangement’. However, the latter new criterion would not apply to unaccompanied minors, and in any case there would be an obligation to consider the best interest of the child. Member States would have to inform the Commission and other Member States in advance of concluding such agreements or arrangements.

Secondly, the Commission proposal would alter the rules on appeals, so that there would no longer be automatic suspensive effect in ‘safe third country’ appeals, except for unaccompanied minors subject to the border procedure. Nevertheless, it would be possible to request a court to grant suspensive effect.

The ‘safe third country’ principle would remain optional for Member States, and the Commission does not propose to change the criteria defining the ‘safety’ of a country as such, the applicable deadlines, the related rules on the border procedure, the current safeguard for unaccompanied minors or the requirement that Member States must consider the merits if the third country concerned refuses to admit the asylum seeker. Nor does it propose to use the power to adopt a common EU list of ‘safe third countries’.

Council position

The Council’s position would take on board the Commission’s main points, clarifying that the transit in question must be ‘on the way to the Union’, and providing for the EU, not only Member States, to enter into negotiations with non-EU countries which the asylum seekers have no link at all to. New provisions would require the Commission, when negotiating such agreements or arrangements, to take Member States’ existing agreements or arrangements into account, including the potential impact of EU agreements or arrangements on cooperation of the non-EU countries with certain Member States. But an agreement or arrangements with the EU, once concluded, will take priority over agreements or arrangements with Member States, where they are incompatible.

Member States negotiating such agreements or arrangements must inform other Member States and the Commission of them prior to their entry into force or provisional application, and also inform other Member States and the Commission of any amendments or termination. A notification should come at an (unspecified) earlier point where the agreements or arrangements are with a non-EU country that borders on a Member State (ie Germany sending asylum seekers to Turkey may have a particular impact on Greece). As an option (according to the preamble), Member States could consult the Commission at an earlier stage, with a view to considering the compatibility of the draft agreement or arrangement with EU law. The Council version would also allow for different ways to inform a non-EU country that the applications of asylum-seekers being sent there have not been considered on the merits.

This negotiation position maintains the exclusion of unaccompanied minors from the ‘Rwanda clause’. On the other hand, it would drop the general reference to the rights of the child that the Commission wanted to insert in the main text, although the preamble would retain a reference to this principle, adding that ‘Member States should also take due account of the principle of family unity when applying the safe third country concept’. The safeguard already in the 2024 Regulation for unaccompanied minors, described above, would not be amended by either the Commission or the Council.

The Council’s version would also drop automatic suspensive effect in cases where the asylum seeker has international protection from another Member State. Greece objects to this. It should be noted that the Court of Justice case law provides for the possibility of applying for international protection in another Member State to avoid harsh conditions in the Member State which granted such protection, where the latter Member State treats the beneficiaries of international protection so badly that it amounts to a breach of the EU Charter of Fundamental Rights.

Finally, the Council version tries to clarify some elements of the ‘safe third country’ rule in the preamble. As regards the concept of a ‘connection’ (which will, of course, matter less than it does at present, given the two new categories of ‘safe third countries’):

While taking fully into consideration the parameters outlined in the case law of the Court of Justice of the European Union, Member States should be able to apply the safe third country concept on the basis of a connection as defined in conformity with national law or practice, in so far as specifically defined therein. The connection between the applicant and the third country could be considered established in particular where members of the applicant’s family are present in that country, where the applicant has settled or stayed in that country, or where the applicant has linguistic, cultural or other similar ties with that country.

Transit through a non-EU country is also clarified:

transit through a third country could include the situation where an applicant has passed through, or stayed on, the territory of a third country on the way to the Union, or where the applicant has been at the border or in a transit zone of a third country, where he or she has had the possibility to request effective protection with the authorities of that country

As for the Rwanda-style arrangements, they ‘could include a variety of case-processing modalities, such as simplified, group or prima facie procedures’. This wording seems to imply a potentially dismissive attitude to the non-EU country considering the merits of applications.

European Parliament position

The European Parliament’s position (again agreed by a committee, and to be reviewed in the full Parliament shortly) is similar to the Council’s. In fact, the EP would only make two changes to the main text of the Commission proposal. First, like the Council, the EP would also provide for the possibility of the EU, not only individual Member States, negotiating Rwanda arrangements, although it goes into less detail than the Council version about the mechanics of this. (Its proposed changes to the preamble would, however, require Member States to inform about bilateral talks at an earlier point, and inform the EP too; and the arrangements would have to be in writing).

Second, the EP version would subject unaccompanied minors to the Rwanda clause if there are ‘reasonable grounds’ to believe that they are a security or public order threat ‘under national law’. While the Court of Justice has usually interpreted security exceptions from asylum law narrowly, the reference to national law may be intended to give Member States more leeway. The EP would, however, retain the general reference to the ‘best interests of the child’ being added to the main text.

The EP also suggests changes to the preamble to the proposal, some of which align broadly with the Council’s. On the ‘connection’ with the ‘safe third country’, the EP states that:

The connection between the applicant and the safe third country could be considered established in particular where members of the applicant’s family are present in that country or where the applicant has settled or stayed in that country, or where the applicant has other links with that country, such as the same or similar language, or other economic, cultural, religious, or geographical links.

Unlike the Council’s version, there are, however, no broad references to national law in this context.

The EP version supports automatic suspensive effect being removed from most ‘safe third country’ appeals, although unlike the Council, it would not also remove automatic suspensive effect from appeals made by those who have international protection already from another Member State.

 

Assessment

First and foremost, one of the amendments proposed by the EP would be plainly unlawful, as an obvious breach of the EU Charter of Fundamental Rights. The Court of Justice’s Alace judgment refers several times to Article 47 of the Charter (the right to an effective remedy and a fair trial), when ruling that it must be possible to challenge the designation of countries as ‘safe countries of origin’ (underlining and bold text added):

…it should be noted that the obligation imposed on Member States by Article 46(1) of Directive 2013/32 to provide for a right to an effective judicial remedy for applicants for international protection, the scope of which is defined in Article 46(3) of that directive, corresponds to the right to an effective remedy guaranteed by Article 47 of the Charter… [para 53]

…although, in the absence of EU rules on the matter, it is for the national legal order, in accordance with the principle of procedural autonomy of Member States and subject to the observance of the principles of equivalence and effectiveness, to lay down the detailed procedural rules governing remedies for ensuring that individual rights derived from the EU legal order are safeguarded, Member States nevertheless have the responsibility to ensure observance in every case of the right to effective judicial protection of those rights as guaranteed by Article 47 of the Charter, the scope of that right being clarified, in the present case, by Article 46 of Directive 2013/32… [para 64]

…the choice, by a Member State, of the competent authority and the legal instrument effecting the designation, at national level, of safe countries of origin, in accordance with Articles 36 and 37 of Directive 2013/32, cannot affect its obligations under that directive. It is thus for each Member State, inter alia, to ensure respect for the right to an effective judicial remedy which Article 46(1) of that directive confers on applicants for international protection against decisions taken on their applications, the scope of which is defined by Article 46(3) of that directive. [para 65]

In that regard, the Court has held that, in accordance with Article 46(3) of Directive 2013/32, read in the light of Article 47 of the Charter, where an action is brought before a national court or tribunal against a decision taken on an application for international protection – examined in the context of the special scheme applicable to applications lodged by applicants from third countries designated, in accordance with Article 37 of that directive, as safe countries of origin – that court or tribunal must, as part of the full and ex nunc examination required by Article 46(3) of that directive, raise, on the basis of the information in the file and the information brought to its attention during the proceedings before it, a failure to have regard to the material conditions for such designation, set out in Annex I to that directive… [para 66]

Consequently, and having regard to the case-law referred to in paragraphs 62 and 63 above, the fact that a Member State has chosen to designate safe countries of origin by means of a legislative act cannot be such as to preclude the national court or tribunal seised in the circumstances set out in the preceding paragraph of the present judgment from reviewing, even if only indirectly, whether the designation of the third country in question as a safe country of origin complies with the material conditions for such a designation, set out in Annex I to Directive 2013/32. [para 67]

In the light of the foregoing, the answer to the first questions is that Articles 36 and 37 and Article 46(3) of Directive 2013/32, read in the light of Article 47 of the Charter, must be interpreted as not precluding a Member State from designating third countries as safe countries of origin by means of a legislative act, provided that that designation can be subject to judicial review as regards compliance with the material conditions for such a designation, set out in Annex I to that directive, by any national court or tribunal hearing an action brought against a decision taken on an application for international protection, which had been examined under the special scheme applicable to applications lodged by applicants who are from third countries designated as safe countries of origin. [para 68]

As the Charter has the same legal value as the Treaties (Article 6 TEU), any EU law adopted in breach of it would be invalid.

The EP majority has also not thought this amendment through. It is not reflected in the main text of the Regulation; and it is unclear if the amendment is somehow intended to prevent a review of the validity of a designation on the common EU list too. But Article 267 TFEU provides that a national court can ask the Court of Justice about the validity of EU legislation; if the EP amendment is intended as an attempt to preclude that, then it would be unlawful for a second reason.

Otherwise, as discussed already, there is not must difference between the EP and Council positions on either proposal. Traditionally the EP has taken a significantly more liberal view than the Council on asylum issues, but now the two are broadly in sync (and both in a more restrictive direction than in the past), with the EP even more restrictive than the Council on some points, although the Council is more restrictive than the EP on some points too.

On the ‘safe country of origin’ proposal, the EP’s position on the definitions and process regarding candidate countries is more convincing: it is logical that applying the temporary protection Directive should lead to an automatic exclusion from the common list of ‘safe countries of origin’, and it would make sense to follow the usual delegated acts process for suspending a country from the list, rather than an ad hoc intergovernmental process that only gives a role to the Council (there’s history here: the Court of Justice previously ruled against the Council’s botched attempt at an ad hoc intergovernmental process as regards the very same issue).

As regards the ‘safe third country’ proposal, the Council’s attempt to extend the removal of automatic suspensive effect is an unprincipled reach into another area of EU asylum law, and would in any event remove an essential feature of an effective remedy as regards potential breaches of Charter rights. But the removal of automatic suspensive effective from ‘safe third country’ cases is also problematic, especially in light of the extremely broad definition of the concept that would follow from the proposals.

The introduction of a ‘Rwanda clause’ in EU asylum law undercuts the traditional argument that asylum-seekers ‘should have’ applied in another country. Nevertheless, this rationale even appears in the Council’s press release:

The safe third country concept allows EU member states to reject an asylum application as inadmissible (i.e. without examining its substance) when asylum seekers could have sought and, if eligible, received international protection in a non-EU country that is considered safe for them.

Frankly, this is untruthful. It is not serious to suggest that an asylum-seeker who made their way from Syria, Eritrea or Afghanistan to the European Union ‘could have sought’ international protection in Rwanda, a country many hundreds of miles from any route they would have taken. ‘Could have sought’ is not a rule in the legal text either. Trump-style dishonesty about migration and asylum should not be appearing in the output of the press office of an EU institution.

A Rwanda-clause – unlike the introduction of the transit clause in the ‘safe third country’ definition – has nothing to do with the route the asylum-seeker took, and everything to do with the destination country’s desire to dump the asylum-seeker in any State that will take them. This will inevitably become a key issue as regards the application of the law.

Adding the possibility of the EU asking non-EU countries for Rwanda treaties – as both the EP and the Council would like – does not change the game much. Although the EU has levers at its disposal to use the new transit clause – because its readmission treaties provide that the other parties must take back not only their own citizens, but also non-citizens who transited through their countries, and the EU’s visa code, visa waiver suspension rules, and soon trade policy laws, all sanction countries that do not comply – there are no such levers as regards Rwanda treaties. It remains to be seen what threats and bribes the EU and its Member States are willing to develop, and how easily the Rwandas of the world can be coerced or tempted by them.

 

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