Misreading the Temporary Protection Directive? The CJEU sets the record straight on access to subsidiary protection in Framholm (C-195/25)

 

Dr Meltem Ineli Ciger, Associate Professor of International Law, Suleyman Demirel University

 

Photo credit: Dietmar Rabich, Münster, Stadtweinhaus, Beflaggung Ukraine und EU -- 2022 -- 0219, CC BY-SA 4.0

Framholm (C-195/25), delivered on 20 November 2025, is the Court of Justice’s third ruling interpreting the Temporary Protection Directive (Council Directive 2001/55/EC, TPD) following Joined Cases C‑244/24 and C‑290/24 (Kaduna) (cf. analysis here), and Case C‑753/23 (Krasiliva) (cf. analysis here). The ruling provides further clarification of Articles 3, 17 and 19 of the TPD and, crucially, confirms that temporary protection does not exclude access to subsidiary protection, ie the type of international protection available for those who do not qualify for refugee status. It therefore marks an important step in aligning the TPD, an instrument drafted in 2001, with the contemporary Common European Asylum System (CEAS).

The reference for a preliminary ruling to the Court of Justice originated in Sweden, where several third-country nationals displaced from Ukraine were granted temporary protection and subsequently applied for subsidiary protection. For years, the Swedish Migration Agency (Migrationsverket) had maintained a practice of automatically rejecting subsidiary protection applications lodged by temporary protection beneficiaries, without any examination on the merits. It interpreted Swedish law as allowing temporary protection beneficiaries to apply only for refugee status and treated all subsidiary protection applications as per se inadmissible. Faced with this restrictive and legally questionable approach, the Göteborg Administrative Court for Immigration Matters asked the CJEU whether EU law really permits a Member State to deny access to subsidiary protection solely because the applicant already enjoys temporary protection. The Court’s answer is unequivocal: No.

1.    What is the case about?

 On 11 March 2025, the Göteborg Administrative Court for Immigration Matters referred questions to the CJEU concerning whether beneficiaries of temporary protection may apply for subsidiary protection under the Qualification Directive (or QD – which defines refugee and subsidiary protection status in the EU) and have that application examined on the merits. All applicants (a Nigerian national holding a permanent residence permit in Ukraine and his Ukrainian family members) had been displaced from Ukraine following the Russian invasion and were granted temporary protection in Sweden. When they applied for international protection, the Migration Agency rejected their refugee status applications but declared their subsidiary protection claims inadmissible solely because they already held temporary protection. No assessment of eligibility under Article 15 of the QD (ie the definition of subsidiary protection) was undertaken. The referring court rightly doubted whether such a blanket exclusion could be reconciled with the development of EU asylum law since 2001, which clearly conceptualises “international protection” as including both refugee status and subsidiary protection. (cf. The Judgment paras 28-37)

2.     The questions referred to and the Court’s short answers

The Göteborg Court referred four questions to the CJEU (OJ C/2025/2651, 19 May 2025), all centred on how temporary protection interacts with the CEAS:

1.    Do the QD and the Asylum Procedures Directive 2013/32/EU (APD) apply to international protection applications lodged by persons already benefiting from temporary protection under the TPD? Yes.

2.    a) Does the term “application for asylum” in Articles 17(1) and 19(2) of the TPD cover applications for both refugee status and subsidiary protection, and must such applications be examined under the QD and APD? Yes.
b) Does Article 3(1) of the TPD prevent Member States from recognising subsidiary protection for persons who are eligible for, or already enjoying, temporary protection? No.

3.    If Articles 17(1) and 19(2) of the TPD also cover the right to apply for subsidiary protection status under the QD, are those articles, in conjunction with Article 10(2) of APD, sufficiently clear and precise to have direct effect?  Yes, and kind of yes (the Court said the QD and APD provisions have direct effect, but did not say that the TPD provisions alone have direct effect)

4.    Is Swedish law, which allows temporary protection beneficiaries to apply only for refugee status (but not subsidiary protection), compatible with EU law? No.

3.    What are Articles 3, 17 and 19 of the TPD about?

Article 3(1) of the TPD makes clear that temporary protection does not prejudge refugee status under the Refugee Convention. It is not a derogation from the Refugee Convention, nor does the grant or expiry of temporary protection affect the substantive assessment of whether an applicant meets the refugee definition.  

Article 17 of the TPD guarantees that beneficiaries of temporary protection may lodge an asylum application at any time and provides that any applications still pending when temporary protection ends must be assessed and decided hereafter.

Article 19 of the TPD regulates the interaction between temporary protection and the asylum procedure: Article 19(1) allows Member States to decide that a person cannot simultaneously hold the status of “asylum seeker” and benefit from temporary protection while their asylum application is being examined. Whereas Article 19(2) ensures continuity of protection: if, after examining an asylum application, the authorities do not grant refugee status or another form of protection, the person must still be allowed to enjoy temporary protection for the rest of the designated duration. (Cf. for a detailed commentary on these articles Skordas’ chapter; Peers’ post; Ch. 5 of my book)

4.    The AG Opinion (which I fully agree with)

The Advocate General’s analysis is worth examining closely, not least because it is carefully constructed and has clear implications for how the TPD must be read today. His reasoning develops along five points.

First, AG interprets Article 17(1) TPD’s reference to an “application for asylum” as an application for international protection, encompassing both refugee status and subsidiary protection. Although the TPD predates the CEAS, it must now be read in light of Article 78(2) TFEU, which is a Treaty provision on asylum (AG Opinion, paras 49-58). He adds “A restrictive understanding of the term ‘asylum’ in Article 17(1) of Directive 2001/55 would fail to take into account the context in which that directive applies following the entry into force of the FEU Treaty, as well as the objectives and scope of the legislation concerning ‘international protection’ which has been adopted in the intervening period.”  (para 50)  

Secondly, the AG stresses that temporary protection does not suspend or exclude access to subsidiary protection. Beneficiaries of temporary protection may lodge applications for refugee or subsidiary protection “at any time,” and the TPD operates as a complement, not an alternative, to the individual assessment required under the Qualification Directive (AG Opinion, paras 43-45, 51-52, 59-61, 66).

Thirdly, he confirms that being a temporary protection beneficiary is not a lawful ground of inadmissibility or exclusion. The exhaustive lists in Articles 12 and 17 of the QD (on grounds for excluding people from refugee or subsidiary protection status) and Article 33(2) APD (grounds for inadmissibility of asylum applications) do not include temporary protection, and national authorities cannot refuse subsidiary protection applications on that basis (AG Opinion, paras 70-72, 78-81).

Fourthly, he accepts that Member States may postpone examination of international protection applications in mass influx situations but makes clear that this administrative flexibility cannot justify a blanket inadmissibility rule for all subsidiary protection applications lodged by temporary protection beneficiaries (AG Opinion, paras 73-80, especially 7-78, 86).

Finally, he concludes that Article 17(1) TPD (not Article 19), read together with the overall CEAS architecture, confers a sufficiently clear and directly effective right to lodge an application for international protection.  

5.    What did the Court say?

The Court’s reasoning proceeds in three clear steps.

First, the Court explains that nothing in Articles 3, 17 or 19 TPD authorises Member States to refuse to examine a subsidiary protection claim simply because the applicant enjoys temporary protection (paras 45-46). Article 19(2) even anticipates the existence of “other kinds of protection,” which must be read today as encompassing subsidiary protection (para 46). The omission of subsidiary protection in the TPD text reflects only the fact that this status did not yet exist in EU law, a point that AG raised. (paras 46-47).

Secondly, the Court turns to the purpose and logic of the TPD. Temporary protection is designed to ensure immediate, time-limited protection while preserving the “effective possibility” of receiving international protection (paras 47–49). Here the Court explicitly follows its reasoning in Joined Cases C‑244/24 and C‑290/24 (Kaduna), where it held that “the purpose of the temporary protection mechanism is, inter alia, to maintain the efficient operation of the international protection system in the Member States” and that the TPD “safeguards, in particular, the effective possibility for third-country nationals and stateless persons benefiting from temporary protection" of obtaining international protection following an appropriate examination of their individual situation” (Kaduna, paras 125 and 127). A national rule excluding subsidiary protection applications as such would therefore contradict the very objective of the TPD (paras 49–50).

Thirdly, and most decisively, the Court relies on the architecture of the CEAS. It emphasises that the QD establishes two forms of international protection – namely, refugee status and subsidiary protection – and that Member States must grant whichever status an applicant qualifies for (paras 51–54). Member States have no discretion to refuse subsidiary protection except on the exclusion grounds exhaustively listed in the Qualification Directive (para 54). The Asylum Procedures Directive reinforces this: an application may be declared inadmissible only on the five grounds set out in Article 33(2) APD, which must be interpreted strictly (paras 58–60). Temporary protection is not among these grounds; national authorities, therefore, cannot reject a subsidiary protection application solely because the applicant enjoys temporary protection (para 61).

Finally, the Court addresses the direct-effect question. The Swedish court had essentially asked whether Articles 17(1) and 19(2) of the TPD, if interpreted as including the right to apply for subsidiary protection, are sufficiently clear and precise, read together with Article 10(2) of the APD, to have direct effect. The CJEU reformulates the issue. Rather than grounding the direct effect in the TPD itself, the Court bases it on two CEAS provisions: Article 18 of the QD, which imposes an unconditional duty to grant subsidiary protection when criteria are met, and Article 33 of the APD, which exhaustively lists the admissibility grounds (paras 71-72). These provisions are both unconditional and sufficiently precise, and thus confer directly effective rights. The consequence is clear: if a national rule conflicts with these obligations and cannot be interpreted in conformity with EU law, domestic courts must disapply the national provision (para 73).

That said, the Court’s approach leaves an important ambiguity unresolved. The referring court had explicitly asked whether Articles 17(1) and 19(2) of the TPD, read together with Article 10(2) APD (which governs the relationship between refugee and subsidiary protection status applications), were sufficiently clear and precise to have direct effect. Instead of answering that question squarely, the Court effectively sidesteps it by grounding direct effect not in the TPD at all, but in Article 18 QD and Article 33 APD. Put simply, the judgment does not tell us whether Articles 17(1) and 19(2) of the TPD are capable of producing direct effect. 

6.    My analysis

The AG’s Opinion and the Court’s judgment reach the same legal outcome, but they do so through markedly different interpretative routes. The Advocate General adopts a more TPD-centred approach, grounding his analysis in Articles 3, 17 and 19 of the TPD and then interpreting these provisions in light of later CEAS instruments. He reads “asylum application” in Article 17 as an application for international protection covering both refugee status and subsidiary protection, emphasises that temporary protection cannot suspend or exclude access to subsidiary protection, and rejects temporary protection as a lawful ground of inadmissibility because it does not appear in the exhaustive list in Article 33(2) of the APD. Although he accepts that Member States may postpone international protection application examinations in mass influx situations, he stresses that a blanket ban on subsidiary protection applications is incompatible with the TPD and the CEAS.

By contrast, the Court relies primarily on the Qualification Directive and the Asylum Procedures Directive, using the CEAS instruments themselves as the main foundation for each key step. It interprets “asylum application” in light of the QD and APD definitions of international protection, derives the duty to grant protection from Article 18 of the QD and the obligation to examine claims (and the limits on inadmissibility) from Articles 10(2) and 33 APD, and treats Article 33(2) of the APD as an exhaustive rule that excludes any TP-based inadmissibility ground (paras 58-60). On the direct effect, the Court bases its analysis on Article 18 of the QD and Article 33 of the APD (paras 70-73), whereas the AG reaches the same conclusion via a combined reading of Article 17 of the TPD with the CEAS provisions.

Compared to the AG’s Opinion, which engages more directly with the wording, structure and logic of the TPD, the Court reaches essentially the same conclusions but grounds its reasoning far more firmly in the QD and APD. Put differently, while the AG reads the TPD through the lens of the CEAS, the Court treats the CEAS instruments themselves as the primary legal basis for explaining why Member States cannot refuse to examine (and, where appropriate, must grant) subsidiary protection to temporary protection beneficiaries.

I must admit that I prefer the AG’s TPD-centred approach: it is more faithful to the architecture of the TPD, and does not treat the TPD as a second-rate asylum instrument because it has never been updated to reflect two decades of CEAS development.

The outcome of the judgment is fully in line with what many of us working on the TPD have long expected. The TPD was never intended to operate as an obstacle to accessing international protection, whether refugee status or subsidiary protection. For over a decade, “international protection” in EU law has included both statuses, and nothing in the Directive suggested a closed or self-standing regime intended to override the CEAS.

The central logic of the TPD has always been pragmatic: to give Member States facing a mass influx breathing space by allowing them to suspend the processing (not lodging) of asylum claims where their systems would otherwise be overwhelmed. It was and never has been designed to bar access to subsidiary protection altogether. Member States with fewer temporary protection beneficiaries, or with sufficiently strong asylum systems, remain entirely free to process claims during temporary protection and examine the merits of their international protection applications.

Interpreting the TPD in the restrictive and literal manner adopted by the Swedish administration, treating “asylum” in the TPD as excluding subsidiary protection and ignoring the subsequent development of EU asylum law, was therefore misguided. It runs counter to the TPD’s objectives, its underlying logic, and the entire evolution of the CEAS. Most importantly, it results in a clear violation of the rights of temporary protection beneficiaries to access international protection.

This judgment matters well beyond Sweden. Even if Sweden appears to be the only Member State to have openly applied such a blanket rule, Framholm makes clear that no Member State may treat temporary protection alone as a ground for declaring subsidiary protection applications inadmissible. Across the EU, temporary protection can never justify a blanket refusal to examine the merits of a subsidiary protection claim.

7.    Conclusion

Framholm matters because it definitively closes the door on any national attempt to use temporary protection as a barrier to subsidiary protection. The judgment also exposes a broader structural problem: the Temporary Protection Directive, drafted in 2001, simply do not reflect the legal architecture of the CEAS in 2025. This is visible not only in Sweden’s misinterpretation but also in the Court’s need to rely so heavily on the QD and APD to reach a decision rather than the TPD’s own articles.

This brings me to a point that, as far as I am aware, no one else has explicitly raised: we know that the TPD remains useful and conceptually sound as a framework for managing mass influx situations, contrary to the Commission’s initial 2020 proposal to repeal it. Temporary protection works. It has proven its value during the Ukrainian displacement and remains a necessary instrument in the EU’s protection toolbox. Even today, 4.3 million non-EU citizens who fled Ukraine have temporary protection status in the EU. Moreover, the adoption of the Crisis and Force Majeure Regulation does not render the TPD unnecessary or obsolete: the two instruments, although they can be invoked in exceptional mass influx situations, operate on different logics. In my opinion, the Crisis and Force Majeure Regulation, which is based on derogations more than anything, cannot fully substitute for the protection mechanism established by the TPD.

Despite the usefulness of the ongoing relevance of the TPD, the judgment also implicitly makes clear that the TPD urgently requires updating. Many of the problematic national practices stem precisely from the fact, highlighted by the AG, that the TPD is an old instrument, never recast and never aligned with two decades of CEAS development. The result is predictable: legal ambiguities that should no longer exist, and litigation over issues that should be obvious.

I wish to conclude with a call to the EU institutions, above all, to the Commission. Once the current temporary protection regime for Ukrainians comes to an end, the Commission should initiate a targeted revision of the TPD, drawing directly on the lessons of its implementation during the mass displacement from Ukraine and the emerging body of CJEU case law, including Kaduna, Krasiliva and Framholm. An updated TPD can significantly narrow the scope for misinterpretation, perhaps introduce a new and clear time limit, align the instrument with the contemporary CEAS architecture, and prevent further unnecessary litigation on matters that ought already to be legally settled.

The New EU Asylum Laws, part 1: the Qualification Regulation

 

Professor Steve Peers, Royal Holloway University of London*

Photo credit: Ggia, via Wikimedia Commons

*sentences with an asterisk have been corrected or updated since the original publication of this post. Most recently updated 18 June 2024.  

Just before Christmas, the European Parliament and the Council (the EU body consisting of Member States’ ministers) reached a deal on five key pieces of EU asylum legislation, concerning asylum procedures, the ‘Dublin’ system on responsibility for asylum applications, the ‘Eurodac’ database supporting the Dublin system, screening of migrants/asylum seekers, and derogations in the event of crises. I’ve looked at this new legislation in a series on this blog, based on a forthcoming article.* The other blog posts are: Part 2 (on reception conditions); Part 3 (on the resettlement Regulation); Part 4, (Eurodac); part 5 (on the screening Regulation); part 6 (on Dublin), part 7 (on the asylum procedures Regulation); and part 8 (on the crisis Regulation, plus general comments).* These laws are intended to be part of a ‘package’ of new or revised EU asylum laws. (Update: the European Parliament voted for the changes to EU asylum laws in April 2024, the Council formally adopted them on 14 May 2024, and they were published in the EU Official Journal on 22 May 2024)* 

The 2024 legislation joins the Regulation revising the powers of the EU asylum agency, which was separated from the package and adopted already in 2021.* 

The qualification Regulation: background

There have been two previous ‘phases’ in development of the Common European Asylum System: a first phase of laws mainly adopted between 2003 and 2005, and a second phase of laws mainly adopted between 2011 and 2013. The 2024 package is in effect a third phase,* although for some reason the EU avoids calling it that.

In each phase, the law on qualification is central: defining what is necessary to obtain refugee status or subsidiary protection status (ie protection other than as a refugee), and setting out what rights people have if they obtain either status. The first phase Qualification Directive was adopted in 2004; the ‘second phase’ Qualification Directive replaced it in 2011. (I analysed the negotiation of the latter Directive here; there’s also a lengthy analysis of it by Madeline Garlick and Violeta Moreno Lax in EU Immigration and Asylum Law: Text and Commentary, and see also my asylum chapter in the latest edition of EU Justice and Home Affairs Law). The third phase, adopted in 2024, now includes a qualification Regulation.*  

There is CJEU case law on both the first phase Directive and the second phase Directive. It might be argued that the case law is still relevant to the new Regulation, unless the relevant text has been amended; in some cases the Regulation (or the preamble to it) reflects some of that case law.

The UK and Ireland opted in to the first phase Directive, but not the second phase Directive or the proposal for the 2024 Regulation. Of course, the UK is no longer bound by EU law, but Ireland is still bound by the first phase Directive. Denmark opted out of both.

Of course, none of the measures in the package can be fully understood without the context of all the others – which I discuss over the course of this series of blog posts.* For instance, it is possible that the effect of the other measures in the package will be to reduce the numbers of people who would otherwise apply for refugee or subsidiary protection status in the EU, or whose applications will be considered on the merits (the asylum procedures law provides that some applications can or must be considered inadmissible). The qualification law is only relevant to those who get to that stage. And for those who do obtain refugee or subsidiary protection status, they can eventually obtain EU long-term resident status, which inter alia provides for a limited prospect of movement between Member States – and that law is in turn being renegotiated too, separately from the asylum package (my comments on that renegotiation here).

The legislative process leading to the 2024 qualification Regulation started with the Commission proposal in 2016,* as a response to the perceived refugee crisis, followed by EU governments agreeing their position on the proposal, which had to be negotiated with the European Parliament (its negotiating position was set out here). I compared the three institutions’ positions in a blog post here. But this blog post will compare the 2024 Regulation only to the 2011 Directive, although I have updated some of the discussion in my previous blog post where relevant.

Basic issues

The first key issue is the type of law used, which is linked with the degree of harmonisation which the EU seeks in this field. The first and second phase qualification laws were Directives, which mean that Member States were bound to achieve the outcome required but had a choice of form and method. The 2024 law is a Regulation,* which is binding in and of itself, without national transposition.

As for the level of harmonisation, the Directives set a form of minimum standards: Member States could have higher standards, as long as those standards were compatible with the Directives. So they set not only a floor, but also a ceiling: the CJEU judgments in B and D, M’Bodj (discussed here), Ahmedbekova and LW discussed the limits of the power to set higher standards. But this will soon be history: the 2024 Regulation removes the power to set higher standards even with a ceiling, providing instead for uniform standards in principle, although some national options will remain in the text.* (The same two basic changes were also made to the 2013 asylum procedures Directive).*

The new Regulation, reflecting that case law, notes that Member States are however free to retain or establish a separate status of humanitarian protection,* as long as there is no confusion with the (EU harmonised) notions of refugee or subsidiary protection status. People with such national status will largely fall outside the scope of any EU law, although the equal treatment provisions in the recent amendment of the EU single permit Directive (discussed here) will apply to them, and the resettlement Regulation applies aspects of the qualification Regulation to those admitted on a humanitarian basis under the EU resettlement law (see Part 3 of this series).*

In practice the shift toward harmonisation may lead to some lowering of standards overall, due to the absence of the possibility to have higher standards generally (even subject to a ceiling) and the removal of some options, to the extent that Member States are now obliged to (for instance) provide for an ‘internal flight alternative’ in their law,* and to require two criteria (not just one criterion) to be satisfied to apply the ‘particular social group’ ground of refugee protection. But the effect of such changes is qualified: for example, the requirement to apply the ‘internal flight alternative’ rule comes with additional safeguards attached to that rule, and Member States may have had less enthusiasm to apply higher standards for refugees, as compared to the options in EU law to have higher standards for (say) employment and environmental law.

The 2024 qualification Regulation provides that the previous Directive ceases to apply from 12 June 2026, while the new Regulation will apply from 1 July 2026.* There is no explanation of what happens between those two dates, and no transitional rule for applications pending, or status granted, before either of those dates.*  

The refugee parts of the Regulation (like the prior Directives) aim to implement the UN Refugee Convention (which the EU refers to as the ‘Geneva Convention’) in more detail, as regards both the definition of ‘refugee’ and the rights which refugees receive. The case law of the CJEU has often interpreted the Directive in light of the Convention, which seems likely to continue because the Regulation still makes many references to the Convention.

Turning to the details of the Regulation, there are five main elements to the law: common rules (applying to both refugee and subsidiary protection status); the definition of ‘refugee’; cessation, exclusion from and withdrawal of refugee status; the definition and cessation etc of subsidiary protection; and the content of status (ie the benefits people with status receive). This blog post mostly does not discuss the preamble, but keep in mind that the preamble adds some important detail to many of the points in the main text analysed here.

Common rules

Family members of refugees and people with subsidiary protection will be defined slightly more broadly. A ‘family member’ will now include relationships formed outside the country of refuge, not just those formed inside the country or origin. This means, for instance, that the spouse of a Syrian refugee who married him while in Turkey or Lebanon, and the children of that couple born in such countries, would now be defined as ‘family members’. It is still necessary for the family members to be present on the territory in connection with the asylum application, though (as confirmed by the recent CJEU judgment in Afrin – although note that in such cases, the separate EU law on family reunion applies for refugees). 'Family members' will now include dependent adult children.* A minor must be considered unmarried if the marriage would not have been allowed under the Member State’s national law, especially on grounds of age.

The Regulation ‘should’ apply to those covered by the planned new EU law on resettlement of refugees from non-EU countries (according to the preamble); the rules on assessment of asylum applications will expressly apply to them. (In fact, as discussed in Part 3 of this series, the resettlement Regulation will be clearer on this point).* As with the previous Directives – and unlike other EU asylum law measures – there is no provision on the territorial scope of the Regulation.

It will now be mandatory, not optional, for the main burden of proof to rest upon the applicant to show why the claim for refugee or subsidiary protection status is justified; and a new clause in the preamble will reflect the ECJ’s 2014 case law (discussed here) which limits the intrusiveness of Member States’ questioning of the credibility of LGBTI asylum-seekers.  The importance of the asylum seeker applying at the ‘earliest possible time’ will be de-emphasised.

As before, the Regulation will retain the possibility of becoming a refugee or needing subsidiary protection ‘sur place’ – ie because of events which took place after the asylum seeker left his or her country of origin, or due to activities of the applicant since leaving that country. But the exception to this rule will remain optional (‘may’): where the applicant has created the circumstances for use of this provision, Member States may refuse protection. This exception will be widened in two ways (extending it to include subsidiary protection claims, and applying it to initial applications, not just repeat applications), but also subject to a new safeguard (the circumstances created by the applicant must be for the for the ‘sole or main purpose of creating the necessary conditions for applying for international protection’). (For the position under the 2011 Directive, see the recent judgment in Case C-222/22).*

On the other hand, the option to refuse claims because the asylum seeker had an ‘internal flight alternative’ – ie he could have fled to a safe part of the country of origin, like a supposed ‘safe zone’ in Syria – will become mandatory. (The possibility of rejecting a claim because an asylum seeker would arguably have been safe in a different country is the subject of the asylum procedures Regulation). However, there are new safeguards: a strong presumption that the concept cannot apply where the source of persecution is the State; applying the main rules on qualification first; shifting the burden of proof to the authorities, and obliging them to consider contrary arguments submitted by the applicant; more on the personal circumstances of the applicant; a requirement to consider whether the applicant could meet their basic needs; and a specific protection for unaccompanied minors. There is also a new requirement to consider the country of origin information supplied by the EU Asylum Agency. Note that although the CJEU has not yet interpreted the rules on the ‘internal flight alternative’ as such, it has recently ruled that differences in interpretation of the rule between Member States are not a good enough reason to refuse to transfer an asylum seeker to another Member State under the Dublin rules. In that context, it is possible that the additional provisions in the Regulation will lead to a more harmonised interpretation of the rule between Member States.

As for the sources of persecution or protection, the Regulation will retain the current rules in the Directive, replacing a reference to considering whether EU acts define a country as providing effective protection from persecution with a reference to considering country of origin information, including from the EU asylum agency where available.

Definition of ‘refugee’

The Regulation retains the basic idea from the previous Directives – and the UN Refugee Convention – that a ‘refugee’ is someone persecuted because of their race, religion, political opinion, nationality or particular social group, elaborating upon each of these concepts. The definition of ‘persecution’ will not change, but there are some changes to the text on ‘particular social group’: adding a reference to how the group is perceived, dropping a reference to criminal law, and adding a reference to ‘gender expression’. Furthermore, there are some new elaborations of the concept in the preamble, including a reference to the possibility of persecution on grounds of disability. As noted above, all Member States will also now have to require that asylum-seekers show that they both perceive themselves as part of a distinct group and are perceived as different by the rest of society, due to the loss of the capacity to set higher standards. (In the meantime, the CJEU has ruled for the first time on the position of women as part of a particular social group, with a judgment in January on domestic violence – see earlier discussion here – and also a pending case on Afghan women, discussed here).*

More generally, a new clause will provide that asylum seekers cannot be expected to hide their identity or beliefs, confirming case law as regards sexuality and religion.

Exclusion, cessation and withdrawal of status

The 2011 Directive elaborates on the Refugee Convention on exclusion, but the Regulation elaborates further.* First, the preamble to the new Regulation enshrines the basic elements of CJEU case law on the special status of some Palestinians (case law starting with Bolbol and El Kott; note also the recent Advocate-General’s opinion relating specifically to Gaza).* Secondly, a new provision on exclusion on grounds of terrorism states that no proportionality test is required in such cases, confirming the judgment in B and D; the preamble also takes account of the judgment in Lounani on the exclusion of foreign fighters, discussed here). Finally, another new provision will require consideration of whether a minor would be considered criminally responsible for acts under the law of a Member State, when considering if a minor would be excluded on grounds of war crimes, terrorism et al.

On cessation – loss of refugee status because, inter alia, the situation has improved significantly in the country of origin – the Regulation will provide again that account must be taken of country of origin information supplied by the EU asylum agency, or other sources.

As for the withdrawal of refugee status, withdrawal will be mandatory in more cases, now including where ‘there are reasonable grounds for regarding him or her as a danger to the security of the Member State in which he or she is present’ and where ‘he or she, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of the Member State in which he or she is present’. Previously withdrawal of refugee status was only optional in some cases. The CJEU has recently interpreted the latter of the two newly mandatory exceptions (see the trilogy of judgments here, here and here). Also, the Court has more broadly ruled that even if refugee status is withdrawn, the person concerned remains a refugee, still benefiting from non-refoulement and the rights which the Refugee Convention sets out for refugees who are unlawfully resident.

Subsidiary protection

The core definition of subsidiary protection (a threat of serious harm deriving from the death penalty, torture or similar treatment, or facing a specified threat from armed conflict) will not be affected by the Regulation – although the preamble will entrench some of the relevant CJEU case law on how much violence against civilians, and what types of conflict, trigger the ‘armed conflict’ ground of subsidiary protection (Elgafaji and Diakité). The provision on cessation of subsidiary protection will refer to country of origin information, including from the EU Asylum Agency.

There will be some changes to the rules on exclusion from subsidiary protection (it will be necessary to show that there was a conviction for a ‘serious crime’, if committed after admission to the territory; the person concerned must be a danger to national security, not security generally); and the prospect of exclusion from subsidiary protection due to commission of less serious crimes will remain optional. As with refugee status, the rules on exclusion will now specify that no proportionality test is required, along with special provision for minors.

Rights of refugees and persons with subsidiary protection

The Regulation will change the provisions on the rights of those with refugee status or subsidiary protection in several ways. First, if a Member State has not issued a residence permit within 15 days, it must at least issue some provisional documentation so that access to rights is more effective. Secondly, the list of vulnerable people now includes parents of adult dependent children. Thirdly, there will be a common template for information to be given to people with refugee status or subsidiary protection, which will emphasise the limits on their movement to other Member States.

Fourthly, due to the abolition of the right for Member States to set higher standards where compatible with the qualification law, it will no longer be possible for them to give refugee or subsidiary protection status automatically to family members who do not qualify separately for refugee or subsidiary protection status in their own right (see Ahmedbekova). On the other hand, there is still an obligation to extend the same rights in the law to family members covered by it, even if they will not have refugee or subsidiary protection status as such. This will include having a residence permit with the same date of expiry as the person with refugee or subsidiary protection status, which is an improvement on the current Directive. But the Regulation precludes a residence permit being issued to a spouse or unmarried partner ‘where there are strong indications that the marriage or partnership was contracted for the sole purpose of enabling the person concerned to enter or reside in the Member State’.

Fifthly, there will be more harmonisation of the rules on residence permits, as regards fees, an explicit requirement to use the EU uniform format, an obligation to issue a permit within 90 days, and a requirement not to leave people with gaps between permits when they are renewed. The prospect for non-renewal of permits will now be linked to withdrawal of status (compare with the T judgment on the current law, discussed here).

Sixthly, there will be parallel harmonisation of the rules related to travel documents, which are issued by Member States to beneficiaries of international protection in place of passports, given that it would probably be unsafe for them to contact officials from their country of origin. (In the case of refugees, this supplements the rules already set out in the Refugee Convention). They will be valid for more than one year and will be expressly subject to the EU’s passport security rules.

Seventh, the provisions on movement within the territory will be redrafted to add the proviso that equal treatment with other non-EU citizens applies where they are ‘generally in the same circumstances’. This may be an attempt to confirm the case law in Alo and Osso (discussed here), which permits a link between limiting movements and the grant of benefits in some cases.

Eighth, there will be a new rule emphasising that refugees and people with subsidiary protection do not have the right to move between Member States – unless they are allowed to stay on the basis of national or other EU law, and subject to the right to make short-term visits under the Schengen rules. As noted already, the EU rules in question include a limited right to move between Member States under the EU long-term residence Directive, which is also being renegotiated. Any unauthorised movement between Member States can be punished by ‘resetting the clock’ on acquisition of long-term residence status under that law. However, Member States will have to fully count the time spent as an asylum-seeker when determining if a refugee or person with subsidiary protection has spent five years’ legal residence in order to qualify as an EU long-term resident under that Directive.

Ninth, the rules on integration will be amended by an obligation to ensure equal treatment as regards work-related matters, including taking account of experience in an occupation obtained outside the country of refuge. The rules on education will provide for equal treatment for adults (subject to an optional exception for loans and grants) and an express right to finish secondary school after the age of majority. Social assistance benefits can be linked to compulsory integration courses, and it will still be possible for Member States to limit beneficiaries of subsidiary protection to ‘core benefits’, which will now be listed in the main text instead of the preamble (adding housing benefits, which takes account of analogous case law). It will also now be explicit that Member States may make integration measures compulsory, subject to provisions on fees and accessibility. Finally, there will be new provisions on the guardians of unaccompanied minors.

Assessment

To what extent will the Regulation achieve the objectives which it sets out in its preamble?

To ensure harmonisation and more convergence in asylum decisions and as regards the content of international protection in order to reduce incentives to move within the […] Union, encourage beneficiaries of international protection to remain in the Member State that granted them protection and ensure an equality of treatment of beneficiaries of international protection

The assumption that harmonisation of refugee decisions deters movements within the EU is often questioned, but in any event the Regulation should in principle increase harmonisation of decision-making somewhat. This stems not only from converting a Directive into a Regulation and removing the qualified option to have higher standards, but also from removing some of the options in the main part of the law, and providing more details of how the common rules must be interpreted – for instance, as regards sur place applications, the internal protection alternative, and the definition of ‘particular social group’.* Note that in some cases this takes the form of integrating the case law into the main text or preamble, thereby making it more visible – and this blog post only mentions some of the new details which will be added to the preamble.

On discouraging movements between Member States, the sanction of restarting the clock on EU long-term residence status for those who move without authorisation, plus allowing easier access to that status for those who stay put, aims to provide a simultaneous carrot and stick. Awkwardly the Regulation does not provide for the situation, recognised by the case law (albeit subject to a very high threshold), when it is legitimate for a refugee or person with subsidiary protection to move to another Member State because the conditions in the Member State which extended them protection have deteriorated to the point where they breach the EU Charter of Fundamental Rights.

As for equality of treatment of those with international protection, the changes in the rules on the rights after obtaining refugee or subsidiary protection status appear liable to reduce differences between Member States – if that is the issue of equal treatment being referred to. On the other hand, some differences between refugees and people with subsidiary protection (as regards social assistance, and being covered or not by the family reunion Directive, which will be particularly relevant where family members are not already present) will remain.  

More fundamentally, as noted already this Regulation will form part of a broader package aiming at the same objectives; in particular the new Regulation on asylum procedures will in parallel harmonise the law on the procedural side, and changes to the law on reception conditions will also aim to discourage movements between Member States. And going beyond this, the bigger impact of the asylum package may come not from this Regulation, but from the new constraints planned on asylum seekers’ applications being considered on the merits in the first place – potentially leaving the EU law on qualification for refugee and subsidiary protection status, whatever its form or legal content, as a form of Potemkin village less frequently accessible in practice. Some of the other blog posts in this series will examine the extent to which the new asylum package could lead to this result.

 

Barnard & Peers: chapter 26

JHA5: chapter I:5

**Disclaimer: I was an independent adviser for a consultancy advising the European Commission on the implementation of and possible amendment of the current Directive.

 

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