ILPA response to proposed EC Directive on the status of third country nationals long-term residents
ILPA Comments, Amendments and Alternative Scoreboard:
Commission Proposal for a Council Directive on the status of third-country nationals long-term residents
COM (2001) 127 final of 13 March 2001
(i) Part I: Overview
The proposal on this subject is very welcome. However, it could still be improved to clarify its meaning or to strengthen it further. In particular, it does not go far enough to implement the ‘equality’ principle that EU leaders at the Tampere European Council agreed should govern long-term residents in the European Union.
On ILPA’s Alternative Scoreboard, the Directive should be ranked as follows:
1) Compliance with the European Convention on Human Rights 7/10
2) Compliance with other international treaties 7/10
3) Compliance with the principles of EU migration and asylum policy 4/10
4)Safeguarding and strengthening rights at national level 6/10
TOTAL: 24/40
As regards the ECHR, the proposal refers to Article 3 as regards expulsion of persons needing protection, but this Article could be further integrated into the text. Also, it incorporates the principles of Article 8 ECHR as regards the protection of private and family life, but could more clearly refer to the jurisprudence on this issue. Finally, it could do more to protect family members in a transitional situation.
As regards other human rights treaties, the proposal refers to the Geneva Convention as regards non-refoulement, but this Article could be further integrated into the text. Also, it is important to ensure that protection against expulsion in that Convention is referred to and fully integrated into this Directive, for risk that some Member States will not pay due respect to that provision. Finally, the Directive does not govern the issue of transfer of protection, and it remains to be seen whether the forthcoming proposal on content of refugee status does so. It is essential that one or the other proposal do so.
Thirdly, the proposal gets a low score as regards compliance with the other principles of EU migration policy because it does not do nearly enough to implement the Tampere principle of equality between long-term residents and EU nationals as far as possible. It leaves aside the issue of family reunion and does not give family members equal rights in the first Member State. The equal rights of access to employment, et al, for long-term residents have not been specified. There is no express right to take up economic or non-economic activities in another Member State. Finally, the rights to object to expulsion are not necessarily as strong as those applicable to EU nationals.
Fourthly, the Directive is valuable for setting a relatively high standard as compared to national law. However, it does not aim for the highest standards applicable in a Member State, and it does not ensure that higher standards, where they exist, are protected by means of a standstill clause.
Part II: Detailed Comments
Chapter I: Scope of the Directive
ILPA is concerned that the Directive unduly limits its scope. First of all, as regards temporary protection, exclusion of persons covered by the recently-agreed EC directive on temporary protection is redundant, since those persons will only be covered by an EC regime for a maximum of three years. However, we are concerned that, where Member States decide to apply a national regime on temporary protection, this regime may last longer than three years since it will not be regulated by EC law. It is also possible that a national regime will be applied following expiry of the EC regime. In our view, a national regime, or a combined EC/national regime, lasting over five years is not genuinely ‘temporary’ and there is no reason for excluding persons within the scope of such a regime from long-term residents’ status.
As for subsidiary protection, it is striking that the Commission’s explanatory memorandum suggests that the Commission is in favour of including such persons within the scope of the proposal if they otherwise meet the criteria for long-term residence status. In our view, there is no reason to wait for adoption of a Community proposal harmonising the status of such persons, since what is at stake in this proposal is the regulation of status based on a period of legal residence, not the regulation of protection. In fact, most categories of persons covered by the Directive are not presently governed by EC or other common rules, so there is no logic in excluding persons with subsidiary protection just because they are not yet governed by EC rules.
As for persons awaiting a decision on their application for recognition of Geneva Convention status, or subsidiary or temporary protection, if they have already been waiting for five years for a decision, it is invidious for Member States to insist that they must continue waiting and cannot be considered for long-term status. Moreover, as drafted, the Directive would exclude persons who have been legally resident for a lengthy period but who apply for recognition of protection status near the end of that period, as a so-called ‘refugee sur place’ or equivalent.
As for students, if they have been present for over five years, then they have had such connection with the host Member State that there is no reason to exclude them from long-term residents’ status. Moreover, as drafted, the directive would exclude anyone who is a student at the time of the proposal from long-term residence status, even if they have spent most of the time beforehand as a worker or if they were born in a Member State or entered it as a child on the basis of family reunion rules. If Article 3(1)(d) is to be retained, it should therefore read ‘have resided there solely for the purpose of pursuing studies during the period referred to in Article 5’.
As for EC nationals’ family members, Article 3(3) on the status of family members of EC nationals who have moved within the Community would delay acquisition of status under the Directive until such persons have acquired ‘permanent’ status under EC law. But at present the Court of Justice has apparently ruled that such persons do not really have ‘permanent’ status (Case C-356/98 Kaba I), although this case has been referred back to the Court for clarification and reconsideration. We understand that the Commission has just proposed new legislation to the Council and the EP on the rights of EC citizens who move within the Community and their family members, which entails the right of permanent residence for family members under certain conditions, but this proposal has not yet been adopted. In fact, it has not even been made public yet. Under these circumstances, the proposed limitation is legally highly uncertain and should not be included. The Directive should provide instead that it is without prejudice to more favourable provisions in the relevant EC legislation, as suggested in the ILPA/MPG Amsterdam Proposals.
Finally, we welcome the express reference to other obligations imposed by international human rights obligations in Article 3(5). It is puzzling and unfortunate that such a provision has not appeared in certain proposals relating to asylum law. However, in the context of this proposal we would suggest that an additional reference must be added to Article 32 of the Geneva Convention, given that at least one Member State has recently issued statements indicating a lack of understanding of the limits on expulsion of refugees to any state, above and beyond the limits on non-refoulement to ‘unsafe’ states.
Chapter II – Long-term resident status in a Member State
Chapter II lies at the heart of the Commission’s proposed Directive and is concerned with what EU long-term resident status means for third-country nationals residing in a EU Member State. The Chapter specifically responds to the need recognised by the Tampere European Council that a third-country national ‘who has resided legally in a Member State for a period of time to be determined and who holds a long-term residence permit should be granted in that Member State a set of uniform rights which are as near as possible to those enjoyed by EU citizens’.[1] This political statement does not envisage complete equal treatment with EU citizens and the proposed Directive does not achieve such equality. Indeed, as described below, it falls some way short of this. The rights flowing from long-term resident status, in keeping with the above Tampere Conclusion, are also confined to the Member State in which third-country nationals are resident and cannot be exercised in a second Member State unless the same status is separately acquired there (see Chapter III). Moreover, the Directive does not ensure that the status of long-term resident third-country nationals is the same throughout the Community. Third-country nationals resident in EU Member States, who are granted more favourable treatment in certain fields under EU agreements with their countries of origin, such as the position of Turkish workers as regards access to employment under the EC Association Agreement with Turkey and implementing decisions, are not affected by the proposed Directive. Indeed, the Directive provides expressly that such more favourable treatment is to remain intact (Article 3(4)(a)). Furthermore, individual Member States can still grant a more favourable national status to third-country nationals resident within their territories (Article 14). The general approach adopted by the proposed Directive is to use the framework of existing Community law on free movement of persons for granting comparable rights to long-term resident third-country nationals, but without actually enabling the full force of this law to be exercised in their favour.[2]
While the proposed Directive constitutes an improvement on the measures on long-term residents adopted and proposed under the former Third Pillar,[3] it does not go far enough in terms of securing equality between EU nationals and those third-country nationals who are essentially settled in an EU Member State and thereby does not reduce the risk of discrimination against the latter on the grounds of their race and ethnicity. Moreover, discrimination between different national groups of third-country nationals on the basis of earlier Community agreements is formally left intact. The position of all third-country nationals, who qualify for long-term resident status, should be equalised upwards in the context of the development of a uniform Community status for such persons. Finally, though it remains possible for Member States to retain or develop a more favourable national status for those long-term resident third-country nationals residing within their territories, the existence of lower minimum standards at the EU level may well have a negative and adverse impact in practice on the situation of this particular group of persons in the long term. Consequently, a standstill clause should also be added to prevent the introduction of further restrictions by Member States.
In identifying other relevant instruments and international conventions, which establish standards for groups of third-country nationals or migrant workers, the Commission, in its Explanatory Memorandum, has adopted a very selective approach. It seems to have either conveniently ignored such instruments altogether or devoted very little attention to them. The Association Agreement with Turkey, the Euro-Mediterranean Association Agreements with Morocco and Tunisia and the Europe Agreements with EU candidate countries are only mentioned in the context of Article 3(4), which ensures that the more favourable provisions of such agreements remain unaffected by the Directive. In particular, no explicit reference is made to implementing decisions of the EC/Turkey Council of Association, such as the important Decision 1/80, which grants Turkish workers resident in EU Member States rights of access to employment and related residence rights. While the Commission mentions ILO Convention No. 97, it makes no reference to ILO Convention No. 143, which, though ratified by fewer Member States than its predecessor, provides a broader set of equality rights to migrant workers.[4] A particularly important provision in this instrument is Article 14(a) granting migrant workers legally resident in a Contracting Party free choice of employment after two years legal residence in the country concerned or after the completion of the first employment contract, which may be shorter in duration. Furthermore, the Commission only refers briefly to the UN Convention on the Protection of the Rights of all Migrant Workers and Members of their Families, merely noting that it has not entered into force and that it has not yet been ratified by any of the EU Member States. The Commission seems to have forgotten that in its landmark Communication on Immigration and Asylum Policies in 1994, it urged Member States to ratify this Convention.[5]
In essence, Chapter II of the proposed Directive covers the following four areas: the conditions that third-country nationals have to fulfil, including the length of residence in a Member State, in order to obtain long-term resident status; the means by which this status can be acquired and withdrawn; the rights and benefits that flow from the status; and the protection afforded third-country nationals holding such status from expulsion.
1. Conditions for obtaining long-term residence status (Articles 5-7)
The most important condition that third-country nationals residing in the EU must fulfil before they can qualify for long-term resident status is the completion of five years of legal and continuous residence in the territory of the Member State concerned (Article 5(1)). This period of residence should be contrasted with the position adopted by the ILPA/MPG Amsterdam Proposals that long-term resident status is granted after three years of economic activity or after five years of non-economic activity. The choice of this three-year period was to ensure that long-term residents would not be worse off than Turkish workers under EC-Turkey Council of Association Decision 1/80 adopted under the EC Association Agreement with Turkey and as interpreted by the Court of Justice.[6] In its Explanatory Memorandum, the Commission does not provide a clear and independent justification for its choice of the five-year residence period. Presumably, five years is the period of residence that is most likely to be accepted by the Member States given that, in eight EU Member States, third-country nationals obtain permanent or secure residence permits after five years of legal residence (p. 5, para. 3.2). The Commission also notes that five years is the qualifying period for access to security of residence under ILO Convention No. 97, the Council of Europe Convention on Establishment, and the recent Council of Europe Committee of Ministers Recommendation (2000) 15 concerning the security of residence of long-term migrants (p. 4, paras. 2.2 and 2.3).
The Commission’s Explanatory Memorandum states (p. 14): ‘The scope of the proposal is broad; no account can be taken … of grounds on which persons were admitted but only of the grounds on which they are legally residing in the territory of a Member State when they meet the period-of-residence criterion for the status’. However, for the purpose of calculating the period of legal and continuous residence, periods of residence as an asylum-seeker or as a beneficiary of temporary protection are only taken into account if the third-country national is subsequently recognised as a Geneva Convention refugee (Article 5(2)(b)). Furthermore, ‘periods of residence for study purposes, with the exception of study towards a doctorate, shall be taken into account as to half only’ (Article 5(2)(b)). According to the Explanatory Memorandum, the distinction between pre-doctoral and doctoral studies is based on the assumption that the latter types of studies are more likely to lead to settlement. While this assumption is in itself somewhat questionable, the real reason for making this distinction appears to be that ‘the integration of this category of highly qualified persons should be encouraged’ (p. 14). So the Commission would seem to be promoting the immigration of highly skilled migrants into the EU through this route. Given the particular concerns of developing countries about the ‘brain drain’ of educated nationals, which were raised in the Commission’s November 2000 paper on a Community Immigration Policy,[7] the Commission’s differential approach would not appear to be very well thought out and therefore requires further justification.
Generally-speaking, Articles 5(3) and (4) of the proposed Directive are to be welcomed for they provide that absences from the Member State concerned for a period of less than six consecutive months or for certain ‘important or serious reasons’ (see Explanatory Memorandum, p. 15) or absences by family members of EU citizens, who have resided for at least two years in the Member State concerned and who move to a third State for up to three years, do not interrupt the continuous and legal residence necessary to obtain long-term resident status. It is important to ensure that a number of the criteria listed in Article 5(3), allowing for absences longer than six months under the proposed Directive, are not applied invidiously by competent authorities in some Member States by subjecting third-country nationals seeking long-term resident status to unfair questioning and investigations concerning their motivations for lengthier absences, a state of affairs that would also risk infringing their right to private life under Article 8 ECHR.
As regards minors, Article 5(1) is at odds with the explanatory memorandum, which suggests that the period for minors will not run until they have received a first residence permit. That interpretation contradicts the text, but we have not suggested an amendment to the text because the correct meaning of the paragraph is clear.
In addition to completing the requisite five-year period of legal residence, third-country nationals, with the exception of recognised refugees and second-generation migrants (i.e., third-country nationals born in the territory of the Member State), also have to provide evidence that they have, both for themselves and dependent family members, stable resources and sickness insurance covering all risks in the Member State concerned (Article 6). All third-country nationals applying for long-term resident status have to demonstrate, by way of documentary evidence, that these conditions as well as the duration of residence criterion have been fulfilled (Article 8). Although the Commission claims in its Explanatory Memorandum (p. 15) that the criteria for assessing evidence whether third-country nationals applying for long-term status are likely to become a burden on a Member State’s social assistance scheme ‘are determined very strictly to avoid rendering eligibility of the status nugatory and to harmonise the conditions in all the Member States,’ the wording of the draft Directive does not support this adequately. Article 6(1)(a) stipulates that stable resources cannot be higher than the minimum income guaranteed by that Member State in the form of social assistance or, where no such social assistance is provided, the level of the minimum social security (retirement) pension paid by the Member State concerned. Implicit in this latter condition, however, is that the minimum income in Member States will differ with the result that the threshold for fulfilling this condition could well be considerably higher in certain Member States. Moreover, the requirement to possess sickness insurance covering “all risks” in the Member State concerned is arguably too stringent. In particular, the conditions in Article 6 are surely inappropriate because in order to obtain entry as a student or economic migrant, third-country nationals already have had to meet resources requirements or to contribute directly to the economy of the host state.
If the third-country national is considered to constitute ‘an actual threat to public order or domestic security’, his or her application for long-term resident status may be refused (Article 7(1)). Refusal of this status cannot be based solely on criminal convictions nor founded on economic considerations (Article 7(2)). Although the Explanatory Memorandum notes that this provision is based to a large extent on the criteria in Directive 64/221/EEC, this is an example of where full equality with EU nationals has not been assured. It is not clear why the provisions of this Directive cannot be applied in toto to those third-country nationals refused status on public policy grounds, who would presumably fulfil the conditions for obtaining long-term resident status in all other respects. Moreover, the use of different wording (public order and domestic security) to that found in Directive 64/221/EEC and Article 39(3) EC (public policy and public security) may imply that inferior standards are possible. It is important that the restrictive application of the public policy exception in respect of free movement of persons in Community law is applied under this Directive in order to ensure full equality for long-term residents with EU nationals and Turkish workers, and also for reasons of legal certainty. This argument is reiterated below in relation to the comments on Article 13 of the Directive affording third-country nationals, who have already acquired long-term resident status, protection against expulsion.
2. Means of acquisition and withdrawal of long-term resident status (Articles 8-11)
Articles 8 and 9 of the proposed Directive are concerned with the means by which third-country nationals acquire long-term resident status, whereas Article 10 is concerned with the circumstances under which such status can be withdrawn.
By virtue of Article 8(1), it is the responsibility of third-country nationals to apply for long-term resident status to the competent authorities of the Member State in which they reside and to provide documentary evidence that they meet the conditions in Articles 5 and 6. Member States are to commit themselves to examining the application within six months after it has been lodged (Article 8(2)). If the conditions in Articles 5 and 6 are met and the person is not considered to constitute a threat within the meaning of Article 7, the Member States concerned is under a firm obligation to grant him or her long-term resident status unless the conditions for withdrawal of the permit in Article 10 are applicable. This is effectively a right to permanent residence, although it should have been described as such for avoidance of doubt. It is also arguable that there should be an obligation imposed on the competent authorities in Article 8(1) to encourage third-country nationals to lodge such an application, particularly in those cases where the former possess information that the persons concerned are likely to fulfil the criteria. This would be in keeping with the view taken by the Commission that integration of long-term residents is “a two-way process” and thus the responsibility of both the State and the immigrant concerned.[8] It would be more preferable to align long-term residence status with EC nationals’ (and Turkish nationals’) status by providing that the relevant documents are merely evidence of the right to long-term residence status, which exists as soon as the conditions for that status are met.
Article 9 provides for the issue of a long-term resident’s EC residence permit to those third-country nationals who qualify for the status. The permit is to be valid for ten years and automatically renewable (Article 9(1)). The permanent nature of this status, which is reflected in this provision and in the fact that expiry of the permit does not entail withdrawal of the status (Article 10(4)), is to be welcomed. The fees involved in obtaining such a permit would appear to be nominal and are therefore unlikely to impose excessive burdens on the third-country nationals concerned. By virtue of Article 9(3), the permit is to be issued free of charge or at the same rate that is required of nationals for the issuance of identity cards.
Article 10(1) is concerned with the circumstances under which long-term resident permits are to be withdrawn: absence from the territory for a period of two consecutive years (but see also Article 10(3), which enables Member States to allow a longer period of absence); fraudulent acquisition of long-term resident status; and acquisition of long-term resident status in another Member State (Article 27). It is arguable that the permissible period of two consecutive years absence from the territory should be longer because the situation of long-term residents is not synonymous with that of EU nationals, who can always return to the Member State concerned or go to another Member State.[9] The Directive should also clarify that the circumstances mentioned in Article 10 are the only possible grounds for loss of the status.
Article 10(4), which provides that the expiry of a permit cannot result in its withdrawal (see also above), and Article 19(5), which stipulates that withdrawal of such a permit is not synonymous with expulsion, are positive provisions. The Commission recognises in its Explanatory Memorandum that in the latter instance it is necessary to grant the person concerned another residence permit to ensure that he or she is not left ‘in limbo’ in the Member State concerned (p. 17).
Article 11 provides for procedural safeguards in the event of refusal of an application for long-term resident status or withdrawal of this status. Reasons are to be provided to the individual concerned in writing. A right of application to the courts is also provided in such cases. However, this right is phrased in rather vague terms. Given the possible serious consequences that may result after an application for long-term resident status has been refused or where the status has been withdrawn, third-country nationals should be granted a right of full appeal to ensure that their case is considered de novo. A reference to fuller appeal rights would prevent some Member States from providing more limited remedies (e.g. judicial review in the UK).
3. Equal treatment with nationals (Article 12)
The core of Chapter II of the proposed Directive is Article 12, which grants long-term residents equal treatment with nationals, principally in the economic and social fields. For the avoidance of doubt, the equal treatment in this provision should also be clearly labelled as ‘a right’. The most significant criticism, however, is that this provision does not appear to grant long-term residents a sufficiently high standard of protection. The absence of an explicit reference in this provision to Regulation 1612/68/EEC is telling in this respect. In its Explanatory Memorandum, the Commission only refers to Regulation 1612/68/EEC in the context of the meaning to be given to ‘social … benefits’ in Article 12(1)(f) (p. 19). It would appear, therefore, that the full force of Regulation 1612/68/EEC to the application of this equality clause is not envisaged. Also, there is no reference to family members in this article, even though they are fully covered by Regulation 1612/68.
Moreover, the list of ‘rights’ provided, while comprehensive in most respects, remains incomplete and is also over-inclusive at the same time. It is incomplete because it excludes important cultural rights.[10] It is arguably over-inclusive because rights to freedom of association and free access to the entire territory of the Member States (Articles 12(1)(h) and (i)) are universal rights found in both international human rights treaties and relevant ILO instruments, which are applicable to all regardless of nationality. While it is of course appropriate that long-term residents should be guaranteed such rights, their specific inclusion in Article 12 may well suggest that third-country nationals resident in EU Member States are not fully entitled to them unless they have attained long-term resident status.
A similar argument can be raised in respect of equal treatment regarding access to employment, which for the sake of clarity should read “free access to employment”. Does the inclusion of equal treatment with nationals in this respect imply that such equality cannot be attained before the five-year period of residence? If this is the case, it is problematic in a number of respects. First, it would mean that Turkish workers would remain in a more privileged position as regards access to employment than other third-country nationals, who are long-term residents in the Member State concerned. Indeed, the proposed Directive, as noted above, would support such a position (see Article 3(4)(a)). Secondly, long-term resident status should not be synonymous with equal treatment in respect of access to employment. This is recognised by the ILPA/MPG Amsterdam Proposals, which recommend that full access to the labour market should be granted after two years of employment in order to ensure for third-country nationals full social inclusion as well as protection against discrimination,[11] a position also in accordance with Article 14(a) of ILO Convention No. 143 referred to earlier. Thirdly, although Article 14 of the proposed Directive does not preclude Member States from granting more favourable treatment to third-country nationals resident in their territory, the risk exists that, in the absence of a standstill clause, Member States might be tempted to downgrade their more favourable protection in accordance with the lower EU minimum standards. Moreover, even if Member States do retain higher levels of rights for third-country nationals, in accordance with Article 14, the resident permit granted will not have EU-wide validity (and thus not confer a right of residence in the other Member States provided for in Chapter III of the proposed Directive).
Since this Directive does not contain provisions regarding the treatment of migrants before attaining long-term resident status, it is essential that the upcoming proposals concerning admission of third-country nationals do so.
4. Protection from expulsion (Article 13)
Article 13 affords third-country nationals with long-term resident status protection against expulsion. The Explanatory Memorandum states: ‘Long-term residents must enjoy enhanced protection against expulsion; the proposal is inspired by existing Community law on free movement of citizens of the Union’ (i.e., Directive 64/221/EEC and the relevant case law of the Court of Justice) (p. 19). Indeed, this is specifically reflected in the wording of Articles 13(2) and 13(3). However, ‘enhanced protection’ is not the same as equal treatment with EU citizens and the sense here is that this provision would permit inferior treatment than that afforded EU nationals and Turkish workers under Community law as regards protection against expulsion. Furthermore, as noted above with regard to Article 7 of the proposed Directive, on refusal to grant long-term resident status, the grounds for expulsion in Article 13 (public order or domestic security) do not equate with the wording in Article 39(3) EC and Directive 64/221/EEC. According to the Explanatory Memorandum (pp. 19-20), the factors in Article 13(4) to which a Member State is obliged to have regard before deciding to expel a long-term resident (duration of residence in their territory; the age of the person concerned; the consequences for the person concerned and family members; and the links with the country of residence or the absence of links with the country of origin) are based on the jurisprudence of the European Court of Human Rights under Article 8 ECHR. Nonetheless, it is unfortunate that there is no direct reference to the ECHR in Article 13. Moreover, explicit provisions protecting against refoulement (with a particular reference to the Geneva Convention, Article 3 ECHR and Article 3 CAT) and against expulsion of refugees (referring to the Geneva Convention) should also have been included here in addition to the general reference to the primacy of the first two obligations in Article 3(5).
The provisions in Article 13 concerning the obligation on Member States to ensure that long-term residents can seek judicial redress in the event of an expulsion decision, that such procedures should have suspensive effect, that long-term residents should be entitled to legal aid and that emergency expulsion procedures are prohibited (Articles 13(5)-(7)) are positive on the whole, although an explicit right to legal representation should also be included and the reference to suspensive effect should be strengthened. Finally, Directive 64/221 affords equal treatment to EC nationals and their family members as regards expulsion; a lower standard for expulsion of family members would make it easy to frustrate the aim of this Directive since long-term residents would often decide to leave to be with the expelled family members.
Chapter III: Free Movement
The most striking omission in this Chapter is the lack of any express reference to the right to undertake economic activities or non-economic activities in another Member state, in addition to the right to reside in that Member State. The former rights could be considered corollaries to the right to reside, but it would be preferable to set them out expressly.
Article 16 could be clarified in several respects to bring it into line with the wording of provisions governing EC nationals, and an express reference to the relevant EC rules should be added. In particular, Article 16(2)(b) can be criticised on the grounds that worker status may be undermined by restrictive conditions on entitlement to unemployment benefit. Simply because a person is involuntarily unemployed may not mean that they are entitled to unemployment benefit, as the proposed provision appears to suggest. Better to remove this pre-condition for the retention of worker status, and instead rely on the wording legislation governing EC nationals, referring to employment offices. Such offices may be in a position to provide such confirmation, albeit that the person concerned is not then entitled to a particular form of benefit.
As for Article 16(2)(c), according to the commentary provided with the proposal, the wording is supposed to reflect the judgments of the ECJ in the relevant area. This is presumably a reference to Brown[12] and Bernini[13]. If so, it should be amended.
The next issue is checks on conditions for exercise of free movement rights. The phrase ‘identity document’ in Article 17 is vague, and could be clarified by giving non-exhaustive examples of what might constitute such a document. Also, the Directive should make clear that it sets out an exhaustive list of the documents that Member States may request. The provision allowing Member States to require a detailed description of a planned self-employed activity would be unnecessarily bureaucratic; proof of sufficient resources should be enough.
As for family members in Article 18, the Directive should permit a long-term resident to have the same rights of family reunion regardless of whether his or her family has already entered the first Member State. This is necessary to ensure equal treatment with EC nationals, especially given the weakening of the Commission’s proposed Directive on family reunion.
The provisions of Articles 19 and 20 are welcome, but could be clarified to provide further links with Directive 64/221 governing expulsion or refusal of entry of EC nationals, and to protect long-term residents and their family members who have moved to another Member State and are still awaiting the issue of a residence permit. The number of medical checks which a Member State may impose should also be clarified, to ensure that medical checks do not prevent an unnecessary obstacle to movement.
Article 21 could be improved in several respects. There is a need to clarify the rules on time-limits regarding applications, to ensure that applicants are informed of decisions, and to clarify the length of the permit to be issued.
Article 22 could be improved to clarify the procedural rights regarding examination of an application, while Article 23, while welcome, could be improved to clarify several aspects of family members’ status during the transitional period before a long-term resident is able to obtain full status in another Member State.
Article 24 should be amended because residence permits for long-term residents should be merely evidential, as they are for EC nationals and Turkish nationals. The proposed wording is even more problematic when one considers the current wording of Article 21(1) (i.e. duty to examine, but no duty to determine within three months). Taken together, the current wording of these two provisions will, almost inevitably, prevent third-country nationals accessing the labour market for many months whilst their application in the second Member State is awaiting a determination. Such a state of affairs will run contrary to the objectives set out in paragraph 5.8 of the explanatory memorandum, and would contrast with the provisions of EC legislation which expressly allow EC nationals to take up employment or self-employment while still waiting for the issue of a residence permit. After all, third-country nationals applying for a residence permit in a second Member State will already hold a residence permit confirming their prior status from the first Member State. The same kind of amendment is needed in respect of family members.
Article 25 should be amended in order to ensure that procedural safeguards apply to any expulsion, in line with the safeguards that apply in the rest of the Directive.
Article 27 should be amended to include a rule for calculation of the transitional period, in accordance with the rule applying to the initial acquisition of status.
Chapter IV: Final Provisions
A new provision here should be added to amend a separate Directive, the recently-adopted Directive 2001/40 on mutual recognition of expulsion orders. This would exempt long-term residents and their family members from the effect of that Directive, just as EC nationals and their family members are exempt.
Part III. Amendments to the Directive
1) Delete Articles 3(2)(a) to (d)
Persons with temporary or subsidiary protection or who are asylum-seekers or students should not be exempted from the directive
2)Replace Article 3(3) with the following text:
This Directive shall not in any way prejudice additional rights conferred by other provisions of Community law upon third-country nationals who are family members of citizens of the Union who have exercised their right to free movement of persons.
As discussed above, the current legal status of such persons is not very clear and so they should not be exempted from this proposal in any respect.
3) Amend Article 3(5) as follows:
…Articles 32 or 33 of the Geneva Convention…
The Directive should also make clear that it cannot reduce the protection provided by the rules on expulsion of refugees in the Geneva Convention.
4) Amend Article 4 as follows:
‘…on the basis of nationality, sex, race…’
Nationality should also be included among the prohibited grounds.
5) Add a new Article 5a:
1) Member States shall not introduce new restrictions on the conditions of access to employment, freedom of establishment or the freedom to provide services applicable to third-country nationals and members of their families legally resident and employed in their territory or duly registered as exercising a self-employed activity in a Member State.
2) Member States shall not introduce new restrictions on the acquisition and loss of third country nationals of the status of long-term resident, permanent resident, or other forms of secure residence status applicable under national law.
This ‘standstill’ provision is based on the EC Treaty standstill provisions originally applicable to EC nationals and on the EC-Turkey Association Council Decision 1/80 and the Additional Protocol to the EC-Turkey Agreement. It would ensure that Member States do not reduce their current higher standards when implementing this Directive. It would particularly be necessary if there emerges a tendency during negotiations in the Council to weaken the Directive.
6) In Article 5(1), replace ‘five years’ with ‘three years’
This would ensure that all third-country nationals are at the same level as Turkish nationals, who are entitled to look for any job within the same field as their current job within their host Member State after three years of employment, and would moreover improve upon the job mobility available at that time, enhancing both integration of third-country nationals and the flexibility of the labour market.
7) Delete Article 5(2).
This paragraph should be deleted as a consequence of the amendment of the directive to cover a greater group of persons, as suggested by amendment 1 above.
8) Article 5(3)(b) should be amended as follows:
related to the discharge of military obligations, detachment for employment purposes, including the provision of cross-border services, studies [six words deleted] or research, serious illness, pregnancy or maternity;
Since study for a doctorate will often entail spending periods outside the host Member State, there is no reason to exclude such periods from the calculation of the time needed to obtain long-term residents’ status.
9) A line should be added to the end of Article 5(3) as follows:
Sub-paragraphs (a) and (b) shall apply regardless of whether the absence takes place inside or outside the European Union.
The explanatory memorandum seems to suggest that only absences within the EU internal market would count for these purposes. This should be expressly rejected in light of the Community’s and the Member States obligations under GATS; such an interpretation could make it difficult for Community companies to establish themselves or provide services in non-member countries, or alternatively make it difficult for a third-country national employee to participate as an employee in such businesses.
10) Delete Article 6.
By the time they have established themselves in a Member State for a sufficient period, there should be no reason to require third-country nationals to meet requirements that they already had to meet in order to migrate there. Articles 8(1) and 8(2) will have to amended as a consequence to remove references to Article 6.
11) A new Article 7(3) should be added as follows:
In applying paragraphs 1 and 2, Member States shall apply Directive 64/221/EEC.
This would refer expressly to the legislation governing refusal of entry of EC nationals, and so more clearly respect the Tampere requirement of equal treatment of long-term resident third-country nationals and EC nationals as far as possible.
12) Article 8(1) should be amended as follows:
To acquire recognition of the right of long-term resident status…
This would put long-term residents on a footing with EC nationals (as required by the Tampere conclusions) along with Turkish nationals, whose status is not dependent upon documents issued by the host Member State; such documents are useful but are declaratory, not constitutive.
13) Article 8(3) should be amended as follows:
The status of long-term resident shall be permanent, subject to Article 10.
The first line of this paragraph must be deleted in order to make clear that long-term residence status accrues automatically, rather than being granted by the authorities.
14) Article 10(1) should be amended as follows:
…shall withdraw long-term resident status only in the following cases:
a) absence from the territory of the European Union for a period of three consecutive years, without prejudice to Article 23. Member States shall provide for derogations…
b) proof of fraudulent acquisition of long-term resident status…
The Directive should make clear that: the list in Article 10 is exhaustive; that a three year period of absence from the Union is required for loss of status (since third-country nationals, unlike EC nationals, could potentially lose any right to reside anywhere in the Union at all); that the five-year period to gain long-term residence status in a second Member State (see Article 27) shall not lead to a loss of long-term residence status in the first Member State (as Article 23 provides); and that the Member State must prove fraud in order to withdraw the residence status.
15) Article 10(3) should be amended as follows:
…exceeding three years or…
This corresponds to part of amendment 13.
16) A new Article 11a should be added as follows:
Long-term residents have the right to family reunion in accordance with Regulation 1612/68/EEC.
This would ensure equality as regards one of the most important aspects of life in a Member State, in accordance with the Tampere principle of equal treatment for long-term residents and EC nationals as far as possible. Such a clause is particularly important given the significant weakening of the proposed directive on family reunion. That directive, if adopted, would have to be amended to take account of the proposed amendment to this Directive.
17) Article 11(1) should be amended as follows:
‘Full reasons shall be given... to the third-country national concerned without delay.’
Procedural rights should be enhanced and clarified.
18) Article 11(3) should be amended as follows:
‘…to the courts of the Member State concerned for a review of the merits of that decision and/or a breach of procedural rights’.
Given the importance of the right in question, it must be open to long-term residents to argue not just about the procedural regularity of any withdrawal but also the merits of the decision to withdraw the status.
19) Article 12(1) should be amended as follows:
‘Without prejudice to the rights of third-country nationals other than long-term residents, long-term residents and their family members shall enjoy the right to equal treatment with nationals at least in accordance with Regulation 1612/68/EEC, and in particular as regards:’
The Directive should not imply that only long-term residents enjoy the rights set out in Article 12(1), and should make clear that Reg 1612/68, the main legislation applying to migrant EC nationals’ equality rights, also applies to third-country national long-term residents. Also, it is essential to extend the relevant equality rights to long-term residents’ family members. The latter two amendments will further the Tampere principle of equality between long-term residents and EC nationals.
20) Article 12(1)(c) should be amended as follows:
‘by a competent authority within that Member State or within other Member States, in accordance with the applicable Community law;’
If the long-term resident obtains qualifications, diplomas or experience in another Member State, it should be recognised in the host Member State on the footing of equality with migrant EC nationals. This will further the Tampere principle of equality between long-term residents and EC nationals.
21) A new Article 12a should be added as follows:
1) Member States shall cooperate, in accordance with their domestic situations and their legal systems, in appropriate schemes to promote the social and cultural advancement of third-country nationals within the scope of this Directive and their family members, in particular literacy campaigns and courses in the language of the host country, and access to vocational training.
2) Member States shall provide encouragement and support for the maintenance of cultural and linguistic links to maintain links with the country of origin of third-country nationals.
3) With a view to strengthening relations between different national, cultural and ethnic groups, Member States shall encourage and support projects of cultural diversity, including cross-cultural exchange and education for citizens of the Union on the cultures of third-country nationals resident in significant numbers in the European Union.
This amendment would help to assist third-country nationals integrating into the host state, while maintaining their links with their origin and helping the majority population to understand the different cultural background of migrants.
22) Article 13(1) should be amended as follows:
Member States may take a decision to expel a long-term resident or his or her family members solely where…
The legislation on expulsion of EC migrants treats family members on an equal footing with the migrant. It is essential to extend this principle here to ensure equality between EC nationals and long-term residents in accordance with the Tampere principle.
23) Article 13(4) should be amended as follows:
… Member States shall have regard to the following factors, in accordance with the jurisprudence of the European Court of Human Rights:
It would be preferable to refer to the source of the principles in this paragraph expressly.
24) Article 13(5) should be amended as follows:
… Member States shall provide that such procedures shall have suspensive effect. Long-term residents shall be entitled to legal representation during such procedures.
Given the difficulty of attempting to overturn an expulsion decision after being expelled, it would be preferable to require suspensive effect in all cases. The legislation governing the rights of EC national migrants should be amended in parallel to include an identical provision. Also, the right to legal representation should be mentioned expressly.
25) A new Article 13(8) should be added as follows:
In applying paragraphs 1 to 7, Member States shall apply Directive 64/221/EEC.
By referring additionally to the EC legislation governing expulsion of EC nationals, this will further the Tampere principle of equality between long-term residents and EC nationals.
26) A new Article 13(9) should be added as follows:
Where relevant, the provisions of Articles 32 and 33 of the Geneva Convention and Article 3 of the European Convention of Human Rights shall apply to the expulsion of long-term residents instead of paragraphs 1 to 8, to the extent that those Conventions provide for higher standards.
It would be preferable to provide expressly for a requirement to apply the non-refoulement principle and restrictions on expulsion of refugees.
27) A new Article 14a should be added at the start of Chapter III, as follows:
A long-term resident of the European Union has the right, in accordance with this Chapter, to free access to employment or self-employment, to receive services, to study, to reside after retirement and to reside for any other purpose in any Member State.
The relevant rights should be mentioned expressly.
28) Article 16(1)(a) should be amended as follows:
‘exercise of an economic activity as a worker in an employed or self-employed capacity, or previous exercise of such activity in that Member State’
Using the broader concept of ‘worker’ would be preferable because it has been exhaustively defined by the Court of Justice. The amended wording would also then mirror the wording in Article 16(2), and would ensure that long-term residents can retire in the second host Member State.
29) A new line should be added to the end of Article 16(1) as follows:
The conditions set out above shall be interpreted in accordance with the relevant law applying to migrant citizens of the European Union.
This clause would make clear that the relevant conditions are applied equally to long-term residents as compared to EC nationals. This will further the Tampere principle of equality between long-term residents and EC nationals.
30) Article 16(2)(b) should be amended as follows:
‘they are unemployed, this being duly confirmed by the competent employment office;’
This wording is taken from Article 7(1) of Directive 68/360, applying to EC nationals, adapted in light of case law making it clear that third-country nationals retain rights even following voluntary unemployment (Case C-171/95 Tetik [1997] ECR I-329)
31) Article 16(2)(c) should be amended as follows:
‘…the retention of full worker status depends on the existence of a link between…’
The wording should more precisely reflect judgments of the Court of Justice.
32) Articles 17(2)(a), (3)(a) and (4)(a) and 18(2)(a) should be amended as follows:
‘identity document, such as a valid passport or identity card.’
This wording reflects the requirements of Directive 68/360 governing EC national migrants, although it also takes into account the possibility that third-country nationals might only be in a position to present other kinds of identification documents. The wording ‘such as’ means that passports and identity cards are examples of identity documents, rather than the only evidence of identity that can be offered. This is particularly relevant for refugees and stateless persons.
33) Articles 17(2), (3) and (4) and 18(2) should be amended as follows:
‘…to present with their application for a residence permit only the following documents:’
This wording would make it clear that the documents set out are an exhaustive list.
34) Article 17(2)(b) should be amended as follows:
‘…in a self-employed capacity [eight words removed].’
This will simplify access to self-employment in another Member State.
35) Article 18(1) should be amended as follows:
‘Members of the family [eight words removed] shall have the right to accompany or join a long-term resident who is exercising his or her right of residence…’.
The first amendment will make clear that the same rules for family reunion will apply regardless of whether the family members have already joined the long-term resident in the first Member State, while the second amendment will avoid a possible misinterpretation of the right.
36) Article 18(2)(b) should be amended as follows:
‘evidence that they are members of the family of the long-term resident in accordance with Regulation 1612/68/EEC; and’.
This would again establish that the same rules for family reunion will apply regardless of whether the family members have already joined the long-term resident in the first Member State.
37) Article 18(3) should be deleted.
This would again establish that the same rules for family reunion will apply regardless of whether the family members have already joined the long-term resident in the first Member State.
38) The title of Article 19 should be amended as follows:
‘Public Policy or public security’
This would recognise that this Article is designed to reflect the provisions of EC Directive 64/221.[14]
39) Article 19(1) should be amended as follows:
‘an actual present threat to public order or public security.’
Again, this would recognise that this Article is designed to reflect the provisions of EC Directive 64/221.
40) A new Article 19(3) should be added as follows:
In applying paragraphs 1 and 2, Member States shall apply Directive 64/221/EEC.
By referring additionally to the EC legislation governing expulsion of EC nationals, this will further the Tampere principle of equality between long-term residents and EC nationals.
41) Article 20(2) should be amended as follows:
‘…after a long-term resident entered the second Member State shall not justify a refusal to issue or renew a permit...’
This amendment is designed to protect third-country nationals who contract a disease or infirmity after they have entered the second Member State but before their residence permit application in that country has been determined.
42) Article 20(3) should be amended as follows:
‘…on a systematic basis, and may only be imposed in any event where the Member State has evidence to support a reasonable suspicion that the applicant is suffering from one of the diseases referred to by paragraph 1.’
This will provide applicants with an additional safeguard against Member State obstruction via unofficial abuse of the derogation.
43) Article 21(1) should be amended as follows:
‘…shall examine and determine applications as soon as possible and in any event within three months….shall inform the third-country national concerned without delay…’
The first amendment will ensure that the competent authorities examine the application within a reasonable length of time, and the second will prevent cases lying around in the ‘out tray’.
44) The second and third lines of Article 21(2) should be replaced as follows:
‘The permit must be valid for at least five years from the date of issue. The second Member State shall inform the first Member State of its decision, without prejudice to Article 23.’
The first amendment will replace the phrase, ‘“the foreseeable duration of the stay’, which is ripe for confusion and problems. The replacement mirrors the minimum five-year duration of residence permits in Article 6(1)(b) of Directive 68/360, strengthening the Tampere principle of equal treatment of long-term residents and EC nationals as far as possible. It would also have the advantage of avoiding evidential difficulties when the third-country national came to apply for long-term resident status at the end of the initial five-year transitional period (see Article 27).
The second amendment is necessary because a mandatory obligation on the part of the third-country national to inform the previous Member State is impractical; many such persons may failing to do so by accident. If such ‘tracking’ of third-country nationals is deemed essential, then the better approach is to impose the obligation on the second Member State to inform the first Member State. This would also bring this Article in to line with Article 27(2), although the Directive should make clear that transmitting such information will not lead to loss of long-term residents’ status in the first Member State (in accordance with Article 23).
45) Article 22(1) should be amended as follows:
‘Full reasons shall be given…to the third-country national concerned without delay.’
Procedural rights should be enhanced and clarified.
46) Article 22(2) should be amended as follows:
‘…to the courts of the Member State concerned for a review of the merits of that decision and/or a breach of procedural rights’.
The long-term resident should not be limited to arguing about the procedural issues.
47) A new Article 22(3) should be added as follows:
‘A third-country national whose application is rejected may subsequently lodge another application if changes in his or her personal circumstances so justify.’
Long-term residents should have the chance to try again, as provided for regarding their first application for recognition of their status in Article 11(2).
48) A new line should be added to Article 23(3) as follows:
‘In the event that family members of a long-term resident lose their status as family members in the first Member State before obtaining an autonomous residence permit, the Member State where such family members are resident has the responsibility for determining whether each family member is nevertheless entitled to independent residence status.’
The proposed Directive on family reunion provides that Member States must lay down rules on possible acquisition of independent status before expiry of the time period to obtain an autonomous residence permit. Family members of a long-term resident should still be able to able to take advantage of this rule, and the Member State where they are resident at the time should be made responsible for applying it.
49) A new Article 23(4) should be added as follows:
‘Periods spent in either the first or the second Member State by the family members of a long-term resident who are not themselves long-term residents shall be added to previous periods spent in the first Member State, for the purposes of acquiring the status of long-term resident in the first Member State’.
Family members should still be able to accrue time towards long-term residence status notwithstanding the movement of their sponsor. Article 23(3) deals with the separate issue of an autonomous residence permit in one Member State, not the acquisition of long-term residence status.
50) Article 24(1) should be amended as follows:
‘[Nineteen words deleted] Long-term residents shall in the second Member State enjoy the rights enumerated in Articles 12 and 14a of this Directive, with the exception of social assistance and study grants, notwithstanding whether the decision on their application for a residence permit in the second Member State is pending.’
The residence permit for the second Member State should be declaratory only, ensuring equality between long-term residents and EC nationals in accordance with the Tampere conclusions.
51) Article 24(2) should be amended as follows:
‘[Nineteen words deleted] Members of the family of the long-term resident shall in the second Member State enjoy rights pursuant to Article 11a and 12 of this Directive, notwithstanding whether the decision on their application for a residence permit in the second Member State is pending.’
The residence permit for the second Member State should be declaratory only, ensuring equality between long-term residents and EC nationals in accordance with the Tampere conclusions. Also, the rights granted to family members should be in accordance with the equality rights set out in this Directive, including the rights to equal access to employment and social advantages, et. al, set out in Regulation 1612/68.
52) Article 25(1) should be amended as follows:
‘During a three -year transitional period, the second Member State may take a decision to expel a long-term resident and/or family members only:
a) on grounds of public policy or public security as defined in Article 19, in accordance with Article 13; or’
b) where the conditions provided for Articles 16 and 18 are no longer met, applying Article 22 mutatis mutandis.
The transition period should be three years, in accordance with the initial period. The procedural protections of Article 13 should apply to any public order or public security expulsions, while review of decisions guaranteed by Article 22 should apply to other expulsions. The Directive should also make clear that these grounds are exhaustive.
53) Article 27(1) should be amended as follows:
‘After three years’ legal residence in its territory, calculated in accordance with Article 5, long-term residents…’
The transition period should be three years, in accordance with the initial period. It is necessary to set out a rule on calculation of the three-year period, which should logically be identical to the rule applying to the initial grant of long-term resident status.
54) Article 27(2) should be amended as follows:
‘…subject to the provisions of Article 7. The second Member State …’
Article 6 should be deleted, as explained above. Moreover, it is anomalous to suggest that a ‘resources’ requirement apply to the second Member State when it retains the power to remove people prior to the five (or three)-year period if the conditions of Article 16 or 18 are not met (see Article 25(1)(b)).
55) Article 27(3) should be amended as follows:
‘…applications for recognition of the acquisition of long-term resident status …’
The permit for long-term residents should be considered declaratory, not constitutive, as it is for EC nationals.
56) A new Article 30a should be added as follows:
Directive 2001/40 shall be amended by adding a new Article [x]:
This Directive shall not apply to long-term residents or their family members as defined in Directive 2001/xx.
The Directive on mutual recognition of expulsion orders does not apply to EC nationals or to their family members. A parallel exemption for long-term residents and their family members will further the Tampere principle of equality between long-term residents and EC nationals.
[1] Tampere European Council, Presidency Conclusions, para. 21.
[2] See K. Groenendijk, “Security of Residence and Access to Free Movement for Settled Third Country Nationals under Community Law” in E. Guild & C. Harlow, (eds.), Implementing Amsterdam: Immigration and Asylum Rights in EC Law (Oxford: Hart, 2001) 225-240, p. 231.
[3] Council Resolution of 4 March 1996 on the status of third-country nationals residing on a long-term basis in the territory of Member States, OJ 1996 C 80/1; Commission Proposal for a Convention on the admission of third-country nationals, OJ 1997 C 337/9.
[4] ILO Convention No. 143 of 1975 concerning Migrations in Abusive Conditions and the Promoting of Equality of Opportunity and Treatment of Migrant Workers, Part II. See also ILO Recommendation No. 151 of 1975 concerning Migrant Workers. Italy, Portugal and Sweden are the only EU Member States that have ratified Convention No. 143. Two EU candidate countries, Cyprus and Slovenia, have also accepted the Convention.
[5] COM 94 (38) final of 23 February 1994, p. 35, para. 132.
[6] See The Amsterdam Proposals: The ILPA/MPG proposed directives on immigration and asylum (ILPA/MPG, 2000), p. 145.
[7] COM 2000 (757) final of 22 November 2000, pp. 8-9.
[8] Ibid. p. 19.
[9] See the Amsterdam Proposals, pp. 147 and 157, which suggest three consecutive years as the cut-off period.
[10] See the Amsterdam Proposals, ibid., pp. 148 and 157-158.
[11] Ibid., p. 145.
[12] [1988] ECR 3205
[13] [1992] ECR I-1071
[14] OJ 56, 4.4.1964