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

 

Professor Steve Peers, University of Essex

Photo credit: Rept0n1x, via Wikimedia commons

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

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

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

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

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

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

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

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

 

Movement between Member States

Who can move – and on what grounds?

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

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

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

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

Conditions for moving

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

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

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

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

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

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

Family members

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

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

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

Exceptions: public policy, public security and public health

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

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

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

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

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

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

Procedural rights

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

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

Equal treatment

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

Withdrawal or loss of status

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

 

Obtaining LTR status in the second Member State

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

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

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

 

Comparisons with free movement law

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

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

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

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

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

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

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

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

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

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

 

Comments

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

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

See also

Impact assessment for new proposal

2011 report on application of the Directive

2019 report on application of the Directive

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

Long-term resident non-EU citizens: the EU Commission’s new proposal (part 1)

 

Professor Steve Peers, University of Essex

Photo credit: Marcomob, via Wikimedia commons

As part of its broader policy on legal migration, the EU has long had an interest in regulating the legal status of long-term non-EU residents in Member States. The current law on this issue is a Directivedating from 2003 – amendedin 2010 to extend it to those with refugee or subsidiary protection status. A recent proposalfrom the Commission aims to go further in extending the rights of this big group of non-EU citizens. The following analysis is the first part of an explanation and analysis of the main features of the Commission’s proposal – which would have to be agreed (perhaps following amendments) by EU Member States in the Council, as well as the European Parliament, to become law. (Denmark and Ireland have an opt out; the UK had also opted out of the current law while it was a Member State). The second part of this blog post (split to keep its length manageable) looks at the proposals to change the rules on long-term resident non-EU citizens moving to other Member States.

 

Personal scope: who is covered?

The current law on EU long-term resident (LTR) status excludes from its scope: students; people who have obtained or applied for temporary protection or a purely national form of protection; asylum-seekers; those who reside ‘solely on temporary grounds such as au pair or seasonal worker, or as workers posted by a service provider for the purposes of cross-border provision of services, or as cross-border providers of services or in cases where their residence permit has been formally limited’; and diplomats as defined by the relevant international treaties.

As a result of Brexit, British citizens in the EU implicitly moved within the scope of the EU LTR law once their EU citizenship ceased due to Brexit. (I’ve previously discussed the specific issues around the application of the LTR law to British citizens here). However, some pending CJEU cases argue that British citizens never lost EU citizenship at all (see my discussion of the Advocate-General’s opinion in the lead case here); we will find out soon enough from the judges if that interpretation is correct.

The 2022 proposal would drop the exclusion of those whose ‘residence permit has been formally limited’, on the grounds of imprecision: according to the explanatory memorandum, ‘its interpretation led to legal uncertainty in the transposition and implementation by Member States’. Indeed, the relevant CJEU case law (Singh) is rather vague – establishing that the ‘formally limited’ exception is different from the ‘temporary grounds’ exception and has a common EU meaning, but not clearly explaining what that common meaning is.  

On the other hand, the new proposal would leave in place the other exclusions from its scope, including the rest of the ‘temporary grounds’ exception, which is the subject of a pending CJEU case, EK. The Advocate-General’s opinionin that case argues that non-EU family members of EU citizens who have not left their Member State of nationality (a group of people known to EU lawyers as Zambrano cases) are excluded from the scope of the EU law on long-term resident status due to the ‘temporary grounds’ exception – even though they have rights to stay more generally under EU law. It remains to be seen if the CJEU shares that interpretation. If so, they would be in a different position from non-EU family members of EU citizens who have moved within the EU, and who are therefore covered by free movement law: the proposal would confirm in the preamble that they are within the scope of the long-term residents’ law. It would also be necessary to distinguish between Zambrano cases, where the residence of the non-EU family member of an EU citizen was based on EU law, and cases such as Iida, where the residence of the non-EU family member of an EU citizen is based on national law (in that case, a non-EU spouse of a German citizen due to his initial residence with his wife in Germany), where the Court confirmed that the EU LTR law could apply in principle.

These exclusions are obviously important in particular to millions of Ukrainian refugees who have obtained temporary protection in the EU in the last few months (see discussion of EU temporary protection for them here). However, as discussed next, this is not quite the end of the story.

 

Obtaining the long-term residence right

The five year waiting period

The current law requires Member States to grant EU long-term residence status to non-EU citizens ‘who have resided legally and continuously’ on the territory for five years before submitting an application. It is necessary to apply in order to obtain the status (see Iida): unlike status under free movement law, EU LTR status for non-EU citizens is not conferred automatically once the conditions are met. There are currently no exclusions from the five-year waiting period for family members (see the Tahircase). The new proposal retains the five-year rule, although a new review clause would require the Commission to report two years after the deadline to apply the new law on the prospects of shortening the waiting period, and there would be an exception for some family members, discussed below.

There are some further rules about calculation of this five-year time period. For those excluded from the scope of the current law, it provides that no account should be taken of time spent on the territory under the temporary grounds/formally limited exception, or as a diplomat. Half the period spent as a student must be taken into account, if the student goes on to obtain a different residence permit which can qualify for LTR status. Similarly, if an asylum-seeker obtains refugee or subsidiary protection status, at least half the time spent as an asylum-seeker must be taken into account; if the asylum-seeker had to wait more than 18 months after the application was lodged to obtain either form of international protection, all that time counts. The text is silent on how to count time spent on the territory for people who have obtained or applied for temporary protection or a purely national form of protection.

Those with refugee or subsidiary protection status that has been revoked, ended or was not renewed under the terms of EU asylum law cannot qualify for EU LTR status. Finally, as regards absences from the territory during the five-year qualification period, those absences still count towards the five-year period if they are ‘shorter than six consecutive months and do not exceed in total 10 months within’ the five years. Member States may also count longer absences if their national law provides, for ‘specific or exceptional reasons of a temporary nature’, although they have to stop the clock during these longer absences (unless the longer absences are due to ‘secondment for employment purposes, including the provision of cross-border services’, in which case they may count the longer absence fully if they wish).

The proposal would make four changes to these rules. First, there would be a new general requirement to monitor the stay of non-EU citizens before the five year period, in particular those who got their residence permit on the basis of investment. Secondly, there would be a new right to cumulate residence in multiple Member States, provided that the last two years before the application for LTR status were spent in the Member State where the application is made. This builds on existing possibilities in EU law for cumulation of residence for select groups of non-EU citizens (for instance, Blue Card holders).

However, the proposal retains an exclusion designed to deter the use of ‘golden visas’: Member States must exclude counting time spent in another Member State by a non-EU citizen who obtained a residence permit due to investment. The investment exception (which is an exclusion from the cumulation rule, not from the scope of the law as a whole, ie five years’ residence in a single Member State can still lead to LTR status for investors) is defined in the preamble, as referring to residence permits based on investment ‘such as capital transfers, purchase or renting of property, investment in government bonds, investment in corporate entities, donation or endowment of an activity contributing to the public good and contributions to the state budget’.

Thirdly, the rules on counting five years’ residence would change for those who previously resided on the basis of a status excluded from the scope of the LTR law. It is now explicit that ‘[a]ny period of residence spent as a holder of a long-stay visa or residence permit issued under Union or national law, including’ periods spent on the basis of temporary or national protection, as a student, or on a temporary basis, counts towards the five year period, as long as a more long-lasting form of residence status has been obtained later. This definitely improves the position of those who previously resided as students or on a temporary basis, and arguably confirms the existing position of those with temporary or national protection – potentially important for millions of Ukrainians, among many other groups of people. However, the current rule of taking into account only [at least] half the period spent as an asylum-seeker (or all of the period if it takes 18 months to get refugee or subsidiary protection status) is retained.

Finally, a new clause on family members, discussed further below, would allow for the right to LTR status for the children of EU LTRs who are born or adopted on the territory of the Member State which granted the LTR permit, without waiting for the five-year period. An application for LTR status would still be necessary, however.

 

Other conditions

First of all, the EU LTR law requires Member States to ensure that non-EU citizens have ‘stable and regular resources’ and ‘sickness insurance’ in order to obtain LTR status. The ‘resources’ requirement is further defined; such resources must be:

…sufficient to maintain himself/herself and the members of his/her family, without recourse to the social assistance system of the Member State concerned. Member States shall evaluate these resources by reference to their nature and regularity and may take into account the level of minimum wages and pensions prior to the application for long-term resident status;

The current law defines the ‘sickness insurance’ requirement to cover ‘all risks normally covered for his/her own nationals in the Member State concerned’.

In the proposal, the sickness insurance requirement would not be modified as such, but the resources requirement would be amended to state that the resources can be ‘also made available by a third party’, and that ‘Member States may indicate a certain sum as a reference amount, but they may not impose a minimum income level, below which all applications for EU long-term resident status would be refused, irrespective of an actual examination of the situation of each applicant.’ (There are also new rules on comparison with applications for national LTR status, what happens if an applicant already has national LTR status, and an exemption for certain family members; these issues are discussed further below).

The first of these amendments reflects the CJEU case law on the resources requirement. In the X judgment, the Court ruled that the resources rule was an autonomous rule of EU law, not defined by national law, and that the resources could be provided by third parties (in that case, a brother of the applicant for LTR status). It was nevertheless important that the resources be ‘stable’ and ‘regular’, as the EU law requires; in that context, the relationship with the family member, and whether the support was based on a legal requirement, could be relevant.  

Member States also have an option to require compliance with ‘integration conditions’ in order to obtain EU LTR status. The proposal would not alter this optional obligation (except as regards comparison with rules for national LTR status and exemptions for family members, both discussed below). There is CJEU case law that indirectly addresses these requirements: P and S, discussed here, in which the Court ruled that an integration requirement imposed after getting LTR status was acceptable, subject to being proportionate.

Next, Member States may reject applications on grounds of public policy and public security, subject to the requirement that:

When taking the relevant decision, the Member State shall consider the severity or type of offence against public policy or public security, or the danger that emanates from the person concerned, while also having proper regard to the duration of residence and to the existence of links with the country of residence

The 2022 proposal would make no change to this provision. Note that it has been the subject of case law: the CJEU ruled in 2020 that a prior criminal conviction cannot automatically exclude a non-EU citizen from obtaining EU LTR status; there must be a ‘specific assessment’ of each applicant, taking into account the offence committed, the degree of risk to public policy and security, the length of residence and the strength of links with that State. 

Finally, the 2022 proposal would delete an odd provision in the current law, which states that in the process of applying for LTR status, the evidence submitted to show that the non-EU citizen meets the conditions to obtain LTR status ‘may also include documentation with regard to appropriate accommodation’. It is not clear if this allows Member States to impose a further requirement for the applicant to show that he or she has adequate accommodation; but if the clause is deleted, the point is moot.

 

The application process and procedural rights

The 2022 proposal retains the current rule that a Member State should decide on an application for EU LTR status within six months. However, the possibility of extensions in ‘exceptional’ cases would be dropped, replaced by a clause providing for the authorities to request further information if they need clarification relating to an application. There would be a new rule for those who already have national LTR status (discussed further below).

As for procedural guarantees, the current law requires reasons to be given for refusing applications or withdrawing status, notification of decisions (specifying redress procedures and time limits), and the right to ‘mount a legal challenge’ to rejections of applications, or withdrawals, loss or non-renewal of EU LTR status.

There would be an ostensibly new rule on fees, providing that while Member States may require fees for handling applications for EU LTR status, those fees ‘shall not be disproportionate or excessive’. In fact this reflects CJEU case law (see Commission v Netherlands and CGIL and INCA).

As regards both fees and procedural guarantees (including time limits to decide on applications), Member States would have to extend any more favourable treatment which they accord to holders of or applicants for national LTR status to applicants for or holders of EU LTR status (see further below).

 

Equal treatment rights

The current law provides that EU LTRs are entitled to equal treatment with nationals as regards: access to employment and self-employment (with an exception for activities involving ‘public authority’); working conditions; education and vocational training, including study grants; recognition of professional qualifications; social security, social assistance and social protection, as defined by national law; tax benefits; access to goods and services, including procedures for obtaining housing; freedom of association; and access to the territory of the Member State granting LTR status. However, Member States can impose a residence condition for the LTR or his/her family members for some aspects of equal treatment. They can also limit access to employment or self-employment where existing rules only give access to EU citizens, and impose language or educational requirements as regards access to education. Moreover, they can limit access to social assistance and social protection to ‘core benefits’. The equal treatment rules are ‘without prejudice’ to EU asylum law, as regards refugees and people with subsidiary protection (and their family members); and Member States have the right to set higher standards.

The new proposal would amend the equal treatment rules to: define social security by reference to EU law; add access to private housing; drop the possibility of a residence condition for family members; eliminate the ‘core benefits’ exception; provide for benefits if an LTR moves to a non-EU country; and require the extension of any more favourable national rules for national LTRs to those holding EU LTR status.

This should be seen in light of the CJEU case law on the equal treatment clause, which has: limited the use of the ‘core benefits’ clause (Kamberaj, which interpreted the exception strictly in light of the EU Charter of Fundamental Rights and said that it could not be used to exclude equal treatment for housing benefit, or apply if a Member State had not declared its intention to use it; see also the recent KVjudgment); provided for family members to get benefits despite not being resident (INPS, where the Court again also adds a condition of the Member State expressing its intention to use the exception); and ruled that a lack of equal treatment as regards a family discount card is in breach of the requirement of non-discrimination for access to goods and services (ASGI, again referring to the condition of a Member State stating an intention to derogate).

 

Loss of status and expulsion

The current law requires Member States to remove LTR status in the event of its ‘fraudulent acquisition’, following an expulsion measure, or due to absence from EU territory of 12 months. But Member States have an option to allow longer absences in general, or for ‘specific or exceptional reasons’. There is an option to remove LTR status where the person concerned is a ‘threat to public policy’ that falls short of the grounds for expulsion. Member States may also withdraw LTR status for people who have lost international protection status in accordance with EU asylum law. LTR status in one Member State is also lost once another Member State has granted it, or after six years’ absence from a single Member State’s territory; a Member State may allow such LTR status to stay after six years’ absence for ‘specific reasons’.  Where LTR status is lost due to absence, a Member State must provide a facilitated procedure to get it back, ‘in particular’ for those who moved to another Member State to study; the process and details of this are left to national law. If LTR status is lost but the former LTR is not removed, a Member State must allow the former LTR to stay if they meet the conditions to stay under national law (on which, see the 2019 YZ judgment).

The 2022 proposal would change these rules to refer to a ‘decision ending the legal stay’ instead of expulsion or removal (to match the wording of the EU Returns Directive), and allow an absence from the EU of 24 months, not 12. However, the option to permit longer absences than that would be limited to cases of ‘specific or exceptional reasons’. The facilitated process to get LTR status back would no longer be left to national law; there would be a mandatory exemption from integration requirements and optional exemptions from the waiting period and resources and sickness insurance conditions.

Note that a recent judgment of the CJEU, discussed here, interpreted the 12-month absence rule generously, providing that a return for a few days during that period could interrupt the absence and so start the clock on the 12-month period anew. Presumably that would apply equally to the longer 24-month period of absence now being proposed. On the other hand, the YZ judgment was less generous as regards fraud, ruling that LTR status could be lost even if the applicant was unaware that the documentation was fraudulent.

As for expulsion, the current law provides that Member States can ‘solely’ expel an EU LTR where there is ‘an actual and sufficiently serious threat to public policy or public security’. This decision ‘shall not be founded on economic considerations’, and Member States must consider the duration of residence, the age of the LTR, the consequences for the LTR and family members, and the links with the Member State and the country of origin. There must be judicial redress against expulsion, legal aid must be granted ‘on the same terms’ as nationals, and there are special rules if the LTR has international protection.

The 2022 proposal would amend these rules only as regards cross-references to the Returns Directive. CJEU case law is relevant here: the Court has confirmed that a criminal conviction is not sufficient by itself to justify expulsion, but that the various factors listed in the law must be fully taken into account (Lopez Pastuzano, discussed here; WT; see also Ziebell).

 

Family members

A wholly new clause in the proposed law contains a number of special rules for family members. First, children of EU LTRs born or adopted in the territory could obtain LTR status immediately following an application, waiving the waiting period and the resources, sickness insurance and integration rules. Second, family members of EU LTRs will only have to comply with integration requirements in the family reunion Directive after family reunion has been granted. Third, the application of EU LTRs’ family members will be fast-tracked, and they will benefit from some of the procedural rights in the proposed LTR law. Next, family members of EU LTRs will be exempt from labour market tests as regards access to employment. Finally, any more favourable rules for family members of national LTRs relating to these issues must be extended to family members of EU LTRs.

 

Relationship with national LTR status

A key feature of the existing and proposed EU LTR law is that the EU law does not fully harmonise national law on LTR status: it sits in parallel to it. Under the current law, Member States may still issue national LTR permits on a ‘more favourable basis’ than the EU rules; but such permits do not confer the right to move to other Member States, as confirmed by the CJEU in the Tahircase.

Under the proposal, the capacity to issue national long-term residence permits is retained, but the reference to ‘more favourable conditions’ for them would be dropped. This is because the proposal would require non-discrimination between national law on LTR status and EU LTR status in a number of areas. (This approach to the relationship between EU and national immigration law was pioneered in the recent revision of the Blue Card directive for highly-skilled workers: see discussion here).

In particular, Member States would have to extend to applicants for EU LTR status any more favourable rules relating to applicants for national LTR status as regards resources, integration conditions, procedural guarantees (including time limits to decide on applications), fees for applications, equal treatment, and family members.

The proposal does not explicitly set out what happens if national law on LTR status creates more favourable rules only for some categories of national LTR applicants (for instance, a waiver from some or all integration conditions for those with a degree or working long hours, as in Iida). In that case the most logical interpretation would be that the more favourable national rules apply to the same categories of people applying for EU LTR status.

However, the non-discrimination rule would not apply to any national rules which provide for obtaining LTR status before five years, whether those rules apply to the benefit of specific groups of people like family members (see the Tahircase) or in general. (Keep in mind, though, that the 2022 proposal suggests that EU LTR status would be available to children of EU LTRs on birth or adoption). It would also not apply to rules relating to public policy or public security, loss or withdrawal of LTR status, or expulsion.

A separate issue is the relationship between national and EU LTR status. Can both types of status be held, or do non-EU citizens have to choose between one or the other? The current law is not explicit on this issue – and neither is the 2022 proposal. Member States have interpreted it differently in practice, and the case law has not addressed the point yet.

The proposal addresses the link between the two from a different angle, providing that if an applicant for an EU LTR status already has a national LTR status, the applicant is exempt from the conditions of resources, sickness insurance and integration, provided that ‘compliance with those conditions was already verified in the context of the application for the national residence permit’. But this does not tell us whether the application for EU status can come in addition to national LTR status, or must be a replacement for national status, or whether Member States can choose which of those two approaches they prefer. (It does necessarily mean that holding national LTR status cannot rule out applying for EU LTR status in future).

 

Comments

The Commission’s proposal would open EU LTR status to more people, making it harder to lose and giving holders more rights. Given the importance of the objective of ensuring the integration of legal non-EU residents, it’s a valuable initiative in principle, subject to some further comments on the detail.

First of all, it’s a good idea to remove the ‘limited residence permit’ exclusion from the law, given that the case law is unclear. Moreover, this exclusion is unprincipled: it’s illogical to exclude from the scope of a long-term residence law those whose residence is not actually temporary.  

This would also be a good opportunity to confirm that – contrary to the opinion of an Advocate-General – Zambrano cases (ie non-EU family members of EU citizens who have not moved between Member States, whose status derives from EU citizenship law) do fall within the scope of the law. It is illogical to treat them worse not only than the non-EU family members of EU citizens who have moved on the basis of free movement law, but also worse than the non-EU family members of EU citizens who also have not moved but who are notcovered by EU citizenship law, but only national law (Iida). And this exclusion is also out of sync with the justified attempts which this proposal makes to improve family reunion rights.

While the improvement of the rules on calculation of the five-year period are welcome (non-EU family members of EU citizens exercising free movement rights will particularly benefit from the cross-border cumulation rule, removing a ‘deterrent to free movement’ in the language of the CJEU), it seems capricious to keep a different rule for asylum-seekers, particularly as this might cross over with, or follow on from, holding the status of temporary protection for millions of those fleeing the invasion of Ukraine. The simplification of some of the other conditions for obtaining LTR status is welcome, too – particularly the ditching of the weirdly drafted and unnecessary quasi-condition relating to accommodation.  

It’s striking that, in different ways, much of the case law on the current legislation is about people who are relatively poor – as regards resources requirements, equal treatment for benefits, and fees for applications (or in relation to integration tests). In that context, it’s surprising to see an EU migration proposal that’s concerned instead about abuse by rich people. This may be a form of displacement activity for the Commission, which dislikes ‘golden visas’ in general; perhaps it would be more honest simply to table a proposal abolishing them or at least providing for harmonised EU rules to prevent abuse.

It’s useful that the proposal improves the position of EU LTR status by comparison with national LTR status, but it’s unfortunate that it does not address whether the two types of status can be held simultaneously. The objective of improving integration of long-term residents would surely be enhanced if they could be.

As for family reunion, the proposals, particularly improving the position of children (who, if they do not obtain jus soli citizenship of the state where they are born, may fall through the cracks and become vulnerable due to lack of a secure migration status) are welcome. But the proposal could have gone further – for instance, waiving the waiting period for admission of family members under the family reunion Directive.

One final point about the inclusion of British citizens within the EU’s long-term residence law – and this proposal to amend it – as a consequence of Brexit. It’s understandable that those aggrieved by the loss of EU citizenship have litigated to challenge whether it has been lost or not. But in the event that that challenge fails, some have taken refuge in implausible fanfic about the EU’s supposed willingness to create a form of EU citizenship for Remain voters. But there are obvious legal obstacles and no sign of political will to do this. As it stands, with the UK having left the EU and refused any form of free movement, and with UK/EU relations deteriorating, it’s about as likely as Harry Potter beaming onto the TARDIS from the USS Enterprise– with an away team comprising Gandalf, Luke Skywalker and the Easter Bunny. The more tangible prospect of improving the position of Brits in the EU is as part of those covered by this proposal (ideally improved), which could benefit all non-EU long-term residents in the EU.

 

See also

Impact assessment for new proposal

2011 report on application of the Directive

2019 report on application of the Directive

 

Continue reading Long-term resident non-EU citizens: the EU Commission’s new proposal (part 1)

Residents of everywhere? The CJEU rules on loss of immigration status due to absence from the territory

 

Professor Steve Peers, University of Essex

Immigration status is often lost due to a certain period of absence from the territory of the country which granted it. But what if that absence is briefly interrupted? The CJEU addressed that issue in a recent judgmentconcerning non-EU citizens with EU long-term resident status – which may also be relevant to those covered by EU free movement law and the Brexit withdrawal agreement.

Background

The recent judgment interpreted the EU’s long-term residence (LTR) directive, adopted back in 2003and amended in 2011to include refugees and people with subsidiary protection, which the Commission plans to propose amendments to in April. Ireland, Denmark, and the UK (when a Member State) opted out of the legislation – although the Directive is now relevant to British citizens as non-EU citizens (I previously discussed its application to UK citizens here).

After five years’ legal residence, the Directive provides that non-EU citizens can apply for long-term residence status in a Member State, subject to meeting certain conditions, which guarantees them a degree of equal treatment, a modest facilitation of the prospect of moving to another Member State (falling short of free movement law), and some protection against expulsion. The Directive exists alongside national forms of permanent residence, so not all those eligible for it will have it: some will have the purely national version.

Once obtained, how can EU long-term residence status be lost? Article 9 of the Directive provides that it is lost or withdrawn due to fraud, expulsion, or ‘in the event of absence from the territory of the Community for a period of 12 consecutive months’ (emphasis added). Member States may provide that ‘absences exceeding 12 consecutive months or for specific or exceptional reasons’ do not lead to loss or withdrawal. They may also remove the status where there is a ‘threat to public policy’ due to serious offences, falling short of the threshold for expulsion. LTR status from one Member State is also lost once it is obtained after gaining it from another Member State after residing there.

There is a second provision on absence, providing that LTR status is lost after six years’ absence from the Member State that granted it – although a Member State may provide that the status is nevertheless retained ‘for specific reasons’. (This appears to be limited to cases where the LTR status holder moved to another Member State). As regards both of the rules on absences, Member States ‘shall provide for a facilitated procedure for the re-acquisition of long-term resident status’, which ‘shall apply in particular to the cases of persons that have resided in a second Member State on grounds of pursuit of studies’. However, the conditions and procedure for re-acquiring this status ‘shall be determined by national law’.

Finally, LTR status cannot be lost solely due to the expiry of an LTR residence permit, and if the loss of LTR status does not lead to removal, ‘the Member State shall authorise the person concerned to remain in its territory if he/she fulfils the conditions provided for in its national legislation and/or if he/she does not constitute a threat to public policy or public security’.

The CJEU judgment

The recent judgment concerned a Kazakh citizen with LTR status from Austria. He applied for renewal of his permit in 2018, but the Austrian authorities turned his application down in 2019 because, for the five-year period between August 2013 and August 2018, he had only spent a few days each year within the EU. He argued that the ‘absence’ exception must be interpreted strictly, so that a return to the EU territory for only a few days within each year was sufficient to interrupt the break, and justify the continuation of his LTR status. In his view, it was not necessary to show that he was ‘physically established’ or had his ‘habitual residence’ in the territory. The national court (the Administrative Court of Vienna) was sympathetic to this interpretation, but asked the CJEU questions to confirm it.

In the Court’s view, in the absence of any reference to the national law of Member States, the concept of ‘absence’ had to be ‘regarded as an autonomous concept of EU law and interpreted uniformly throughout the European Union…taking into account the wording of that provision, its context, and the purpose of the rules of which it forms part’.

Starting with the wording of the clause, most language versions used a term ‘equivalent’ to ‘absence’. The Court noted that ‘the usual meaning of that term in everyday language’ was ‘the physical ‘non-presence’ of the long-term resident concerned in the territory’ of the EU; hence ‘any physical presence of the person concerned in that territory is capable of interrupting such an absence’. Although the German and Dutch language versions of the Directive used words which implied instead ‘staying or remaining’ on EU territory, ‘and could therefore, depending on the context, imply a more permanent presence than a physical presence of any duration’, those words could also refer to ‘a mere physical non-presence’; and otherparts of the German and Dutch language versions of Article 9 did use words ‘which correspond to the concept of ‘absence’’.

Secondly, the context of the Directive provided for the permanence of LTR status, ‘subject to Article 9’. So permanent LTR status was ‘the general rule’, and Article 9 was a ‘derogation’ which must be interpreted ‘strictly’. This ‘suggests that there should not be a broad interpretation of Article 9’, ie it is should not be interpreted to mean that ‘mere physical presence’ was insufficient to interrupt absence from the EU.

Also, the rule on acquisition of LTR status expressly ‘requires the presence of the person concerned in the relevant territory to go beyond a mere physical presence and that it be of a certain duration or have a certain stability’ – ie to ‘reside…legally and continuously for five years immediately prior to the submission of [his or her] application, subject to the periods of absence permitted under Article 4(3) of that directive.’ Details like this are lacking in the provision on loss of status, which ‘in particular’ does not say that ‘the presence of the person concerned in that territory must be of a certain duration or have a certain stability such as’ having ‘his or her habitual residence or centre of interests in that territory’. Nor are there ‘any other conditions relating to the duration or nature of that presence’, such as ‘an ‘actual and authentic link’ with respect to the same territory’, like ‘family members or assets’.

Finally, as for the objective of the Directive, the preamble stated that it aimed at integration of long-term resident non-EU citizens into the territory of the EU, by bringing their status closer to that of EU citizens and ‘establishing equal treatment with the latter in a wide range of economic and social fields’. This supported an interpretation of Article 9 to mean that those who have demonstrated they are sufficiently ‘settled’ to obtain LTR status ‘are, in principle, free, as are EU citizens, to travel and reside, also for longer periods, outside the territory of the European Union, without that thereby entailing the loss of their long-term resident status’, subject to not being absent for 12 consecutive months.

Also, the objective of legal certainty – which the preamble refers to as regards procedural rights – must also apply to the issue of loss of the status (referring to the Commission’s proposal, which stated that the sole grounds of losing LTR status should be listed in the proposal). The Court’s interpretation best met the objective of legal certainty, as the ‘maintenance of’ LTR status was ‘dependent on a clear, precise and predictable criterion relating to a simple objective event’.

Finally, the purpose of the absence rule was to prevent non-EU citizens from keeping LTR status where it no longer served any purpose in achieving the objective of integration.  It referred to the purpose of the parallel clause on the loss of permanent residence status under EU free movement law, ie justification for that loss because ‘the link with the host Member State is loosened’.  Although the free movement Directive and the long-term residence Directive

…differ from one another in terms of their subject matter and objectives, the fact remains that, as the Advocate General also pointed out, in essence, in points 40 to 43 of his Opinion, the provisions of those directives may lend themselves to a comparative analysis and, where appropriate, be interpreted in a similar way, which is justified, in particular in the case of [the provisions on loss due to absence], which are based on the same logic. [para 43]

It followed that the link is loosened only after an absence for 12 consecutive months; and to interrupt that absence, ‘it is sufficient for the long-term national concerned to be present…in the territory of the European Union, even if such presence does not exceed a few days’. This must, however, ‘be distinguished from the situation where there is evidence that such a resident has committed a misuse of rights’, although there was no evidence of such a misuse in this case.

Comments

The Court’s reasoning in this judgment is largely convincing. Its approach to interpreting the wording of the law is consistent with prior judgments, as regards a uniform interpretation under EU law in the absence of a reference to national law, and siding with the majority of language versions – and furthermore, as the Court points out, the German and Dutch language versions do not unambiguously suggest the opposite interpretation either. As for the context of the law, both the ‘interpret the rule widely/interpret derogations strictly’ approach and the a contrario approach (where the drafters wanted to specify there were requirements beyond mere presence on the territory, they expressly did so) are consistent with the Court’s usual canons of interpretation.

On the other hand, its analysis as regards the objective of the Directive is less persuasive. It starts out by referring to the objective of integration, which may point to the opposite interpretation to that which the Court reaches: can it easily be argued that a non-EU citizen who spends only a few days a year on EU territory for a five-year period is still integrated into a Member State’s territory? The Court narrowly avoids painting itself into this corner by framing integration as a form of equality with Member States’ citizens, who can come and go as they please without losing citizenship. But in fact some Member States do withdraw their nationality – and therefore EU citizenship – due to absence, in combination with other factors, and the Court has even ruledon that issue. The comparison with EU free movement law isn’t too convincing, because the Court has not yet ruled on the interruption of absence point in that context. And while the legal certainty point is convincing as far as it goes, it is undercut both by the Court’s lack of clarity on what a ‘few days’ interruption of absence means exactly, and by its creation of a ‘misuse of rights’ exception, which it does not define further except to assert that the exception does not seem to apply in this case.

Are these two points the same – ie a yearly dash through Schiphol airport in transit between Heathrow and New York does not count as interruption of absence? If so, the rule must be further explained. Or are they, as it appears, two different rules? If so, those two rules need to be explained further.

As for the implications of the judgment, it is first and foremost surely logical that this judgment applies to the second method of losing LTR status due to absence, ie by six years’ absence from the Member State that granted the status. It would be very odd to interpret an essentially identical concept appearing in the same Article of the same Directive differently. The judgment also strongly implies that the grounds of loss of status are exhaustive, and that the other grounds for loss of status should be interpreted narrowly. (However, note that in a previous judgmentthe Court interpreted the ‘fraud’ ground for loss of status broadly, ie it was lost even when the non-EU citizen concerned had not personally committed that fraud). The judgment is not relevant by analogy to periods of absence while accruing the initial five years’ legal residence to obtain an LTR permit, because there is a more specific rule applicable there.

Going outside the LTR Directive, the Court’s judgment explicitly suggests that the rules on absence in free movement law must be interpreted the same way – ie ‘Once acquired, the right of permanent residence shall be lost only through absence from the host Member State for a period exceeding two consecutive years.’ Due to its close links with free movement law, it is arguable that the absence clause in the Brexit withdrawal agreement should also be interpreted this way (‘Once acquired, the right of permanent residence shall be lost only through absence from the host State for a period exceeding 5 consecutive years.’)

 

Barnard & Peers: chapter 26

Photo credit: Uri Baruchin, via wikicommons

 

Continue reading Residents of everywhere? The CJEU rules on loss of immigration status due to absence from the territory

First analysis of the EU’s new asylum proposals

Professor Steve Peers, Law School, University of Essex*

This week the EU Commission published its new package of proposals on asylum and (non-EU) migration – consisting of proposals for legislation, some ‘soft law’, attempts to relaunch talks on stalled proposals and plans for future measures. The following is an explanation of the new proposals (not attempting to cover every detail) with some first thoughts.  Overall, while it is possible that the new package will lead to agreement on revised asylum laws, this will come at the cost of risking reduced human rights standards.

Background

Since 1999, the EU has aimed to create a ‘Common European Asylum System’. A first phase of legislation was passed between 2003 and 2005, followed by a second phase between 2010 and 2013. Currently the legislation consists of: a) the Qualification Directive, which defines when people are entitled to refugee status (based on the UN Refugee Convention) or subsidiary protection status, and what rights they have; b) the Dublin III Regulation, which allocates responsibility for an asylum seeker between Member States; c) the Eurodac Regulation, which facilitates the Dublin system by setting up a database of fingerprints of asylum seekers and people who cross the external border without authorisation;  d) the Asylum Procedures Directive, which sets out the procedural rules governing asylum applications, such as personal interviews and appeals; e) the Reception Conditions Directive, which sets out standards on the living conditions of asylum-seekers, such as rules on housing and welfare; and f) the Asylum Agency Regulation, which set up an EU agency (EASO) to support Member States’ processing of asylum applications.

The EU also has legislation on other aspects of migration: (short-term) visas, border controls, irregular migration, and legal migration – much of which has connections with the asylum legislation, and all of which is covered by this week’s package. For visas, the main legislation is the visa list Regulation (setting out which non-EU countries’ citizens are subject to a short-term visa requirement, or exempt from it) and the visa code (defining the criteria to obtain a short-term Schengen visa, allowing travel between all Schengen states).  The visa code was amended last year, as discussed here.

For border controls, the main legislation is the Schengen Borders Code, setting out the rules on crossing external borders and the circumstances in which Schengen states can reinstate controls on internal borders, along with the Frontex Regulation, setting up an EU border agency to assist Member States. On the most recent version of the Frontex Regulation, see discussion hereand here.

For irregular migration, the main legislation is the Return Directive. The Commission proposed to amend it in 2018 – on which, see analysis hereand here.

For legal migration, the main legislation on admission of non-EU workers is the single permit Directive (setting out a common process and rights for workers, but not regulating admission); the Blue Card Directive (on highly paid migrants, discussed here); the seasonal workers’ Directive (discussed here); and the Directiveon intra-corporate transferees (discussed here).  The EU also has legislation on: non-EU students, researchers and trainees (overview here); non-EU family reunion (see summary of the legislation and case law here) and on long-term resident non-EU citizens (overview – in the context of UK citizens after Brexit – here). In 2016, the Commission proposed to revise the Blue Card Directive (see discussion here).

The UK, Ireland and Denmark have opted out of most of these laws, except some asylum law applies to the UK and Ireland, and Denmark is covered by the Schengen and Dublin rules. So are the non-EU countries associated with Schengen and Dublin (Norway, Iceland, Switzerland and Liechtenstein). There are also a number of further databases of non-EU citizens as well as Eurodac: the EU has never met a non-EU migrant who personal data it didn’t want to store and process.

The Refugee ‘Crisis’

The EU’s response to the perceived refugee ‘crisis’ was both short-term and long-term. In the short term, in 2015 the EU adopted temporary laws (discussed here) relocating some asylum seekers in principle from Italy and Greece to other Member States. A legal challenge to one of these laws failed (as discussed here), but in practice Member States accepted few relocations anyway. Earlier this year, the CJEU ruled that several Member States had breached their obligations under the laws (discussed here), but by then it was a moot point.

Longer term, the Commission proposed overhauls of the law in 2016: a) a Qualification Regulation further harmonising the law on refugee and subsidiary protection status; b) a revised Dublin Regulation, which would have set up a system of relocation of asylum seekers for future crises; c) a revised Eurodac Regulation, to take much more data from asylum seekers and other migrants;  d) an Asylum Procedures Regulation, further harmonising the procedural law on asylum applications; e) a revised Reception Conditions Directive; f) a revised Asylum Agency Regulation, giving the agency more powers; and g) a new Resettlement Regulation, setting out a framework of admitting refugees directly from non-EU countries.  (See my commentson some of these proposals, from back in 2016)

However, these proposals proved unsuccessful – which is the main reason for this week’s attempt to relaunch the process. In particular, an EU Council note from February 2019 summarises the diverse problems that befell each proposal. While the EU Council Presidency and the European Parliament reached agreement on the proposals on qualification, reception conditions and resettlement in June 2018, (Update, 1 October 2020: for the texts of the deals reached on qualification and reception conditions, see the Statewatch website). Member States refused to support the Presidency’s deal and the European Parliament refused to renegotiate (see, for instance, the Council documents on the proposals on qualificationand resettlement; see also my comments on an earlier stage of the talks, when the Council had agreed its negotiation position on the qualification regulation).

On the asylum agency, the EP and Council agreed on the revised law in 2017, but the Commission proposed an amendmentin 2018 to give the agency more powers; the Council could not agree on this. On Eurodac, the EP and Council only partly agreed on a text. On the procedures Regulation, the Council largely agreed its position, except on border procedures; on Dublin there was never much prospect of agreement because of the controversy over relocating asylum seekers. (For either proposal, a difficult negotiation with the European Parliament lay ahead).

In other areas too, the legislative process was difficult: the Council and EP gave up negotiating amendments to the Blue Card Directive (see the last attempt at a compromise here, and the Council negotiation mandate here), and the EP has not yet agreed a position on the Returns Directive (the Council has a negotiating position, but again it leaves out the difficult issue of border procedures; there is a draft EP position from February). Having said that, the EU has been able to agree legislation giving more powers to Frontex, as well as new laws on EU migration databases, in the last few years.

The attempted relaunch

The Commission’s new Pact on asylum and immigration (see also the roadmapon its implementation, the Q and As, and the staff working paper) does not restart the whole process from scratch. On qualification, reception conditions, resettlement, the asylum agency, the returns Directive and the Blue Card Directive, it invites the Council and Parliament to resume negotiations. But it tries to unblock the talks as a whole by tabling two amended legislative proposals and three new legislative proposals, focussing on the issues of border procedures and relocation of asylum seekers.

Screening at the border

This revised proposals start with a new proposalfor screening asylum seekers at the border, which would apply to all non-EU citizens who cross an external border without authorisation, who apply for asylum while being checked at the border (without meeting the conditions for legal entry), or who are disembarked after a search and rescue operation. During the screening, these non-EU citizens are not allowed to enter the territory of a Member State, unless it becomes clear that they meet the criteria for entry. The screening at the border should take no longer than 5 days, with an extra 5 days in the event of a huge influx. (It would also be possible to apply the proposed law to those on the territory who evaded border checks; for them the deadline to complete the screening is 3 days).

Screening has six elements, as further detailed in the proposal: a health check, an identity check, registration in a database, a security check, filling out a debriefing form, and deciding on what happens next.  At the end of the screening, the migrant is channelled either into the expulsion process (if no asylum claim has been made, and if the migrant does not meet the conditions for entry) or, if an asylum claim is made, into the asylum process – with an indication of whether the claim should be fast-tracked or not. It’s also possible that an asylum seeker would be relocated to another Member State. The screening is carried out by national officials, possibly with support from EU agencies.

To ensure human rights protection, there must be independent monitoring to address allegations of non-compliance with human rights. These allegations might concern breaches of EU or international law, national law on detention, access to the asylum procedure, or non-refoulement (the ban on sending people to an unsafe country). Migrants must be informed about the process and relevant EU immigration and data protection law. There is no provision for judicial review of the outcome of the screening process, although there would be review as part of the next step (asylum or return).

Asylum procedures

The revised proposalfor an asylum procedures Regulation would leave in place most of the Commission’s 2016 proposal to amend the law, adding some specific further proposed amendments, which either link back to the screening proposal or aim to fast-track decisions and expulsions more generally.  

On the first point, the usual rules on informing asylum applicants and registering their application would not apply until after the end of the screening. A border procedure may apply following the screening process, but Member States must apply the border procedure in cases where an asylum seeker used false documents, is a perceived national security threat, or falls within the new ground for fast-tracking cases (on which, see below).  The latter obligation is subject to exceptions where a Member State has reported that a non-EU country is not cooperating on readmission; the process for dealing with that issue set out under the 2019 amendments to the visa code will then apply. Also, the border process cannot apply to unaccompanied minors or children under 12, unless they are a supposed national security risk. Further exceptions apply where the asylum seeker is vulnerable or has medical needs, the application is not inadmissible or cannot be fast-tracked, or detention conditions cannot be guaranteed. A Member State might apply the Dublin process to determine which Member State is responsible for the asylum claim during the border process. The whole border process (including any appeal) must last no more than 12 weeks, and can only be used to declare applications inadmissible or apply the new ground for fast-tracking them.

There would also be a new border expulsion procedure, where an asylum application covered by the border procedure was rejected. This is subject to its own 12-week deadline, starting from the point when the migrant is no longer allowed to remain. Much of the Return Directive would apply – but not the provisions on the time period for voluntary departure, remedies and the grounds for detention. Instead, the border expulsion procedure would have its own stricter rules on these issues.

As regards general fast-tracking, in order to speed up the expulsion process for unsuccessful applications, a rejection of an asylum application would have to either incorporate an expulsion decision or entail a simultaneous separate expulsion decision. Appeals against expulsion decisions would then be subject to the same rules as appeals against asylum decisions. If the asylum seeker comes from a country with a refugee recognition rate below 20%, his or her application must be fast-tracked (this would even apply to unaccompanied minors) – unless circumstances in that country have changed, or the asylum seeker comes from a group for whom the low recognition rate is not representative (for instance, the recognition rate might be higher for LGBT asylum-seekers from that country). Many more appeals would be subject to a one-week time limit for the rejected asylum seeker to appeal, and there could be only one level of appeal against decisions taken within a border procedure.

Eurodac

The revised proposalfor Eurodac would build upon the 2016 proposal, which was already far-reaching: extending Eurodac to include not only fingerprints, but also photos and other personal data; reducing the age of those covered by Eurodac from 14 to 6; removing the time limits and the limits on use of the fingerprints taken from persons who had crossed the border irregularly; and creating a new obligation to collect data of all irregular migrants over age 6 (currently fingerprint data for this group cannot be stored, but can simply be checked, as an option, against the data on asylum seekers and irregular border crossers). The 2020 proposal additionally provides for interoperability with other EU migration databases, taking of personal data during the screening process, including more data on the migration status of each person, and expressly applying the law to those disembarked after a search and rescue operation.  

Dublin rules on asylum responsibility

A new proposalfor asylum management would replace the Dublin regulation (meaning that the Commission has withdrawn its 2016 proposal to replace that Regulation). The 2016 proposal would have created a ‘bottleneck’ in the Member State of entry, requiring that State to examine first whether many of the grounds for removing an asylum-seeker to a non-EU country apply before considering whether another Member State might be responsible for the application (because the asylum seeker’s family live there, for instance). It would also have imposed obligations directly on asylum-seekers to cooperate with the process, rather than only regulate relations between Member States. These obligations would have been enforced by punishing asylum seekers who disobeyed: removing their reception conditions (apart from emergency health care); fast-tracking their substantive asylum applications; refusing to consider new evidence from them; and continuing the asylum application process in their absence.

It would no longer be possible for asylum seekers to provide additional evidence of family links, with a view to being in the same country as a family member. Overturning a CJEU judgment (see further discussion here), unaccompanied minors would no longer have been able to make applications in multiple Member States (in the absence of a family member in any of them). However, the definition of family members would have been widened, to include siblings and families formed in a transit country.  Responsibility for an asylum seeker based on the first Member State of irregular entry (a commonly applied criterion) would have applied indefinitely, rather than expire one year after entry as it does under the current rules. The ‘Sangatte clause’ (responsibility after five months of living in a second Member State, if the ‘irregular entry’ criterion no longer applies) would be dropped. The ‘sovereignty clause’, which played a key part in the 2015-16 refugee ‘crisis’ (it lets a Member State take responsibility for any application even if the Dublin rules do not require it, cf Germany accepting responsibility for Syrian asylum seekers) would have been sharply curtailed. Time limits for detention during the transfer process would be reduced.  Remedies for asylum seekers would have been curtailed: they would only have seven days to appeal against a transfer; courts would have fifteen days to decide (although they could have stayed on the territory throughout); and the grounds of review would have been curtailed.

Finally, the 2016 proposal would have tackled the vexed issue of disproportionate allocation of responsibility for asylum seekers by setting up an automated system determining how many asylum seekers each Member State ‘should’ have based on their size and GDP. If a Member State were responsible for excessive numbers of applicants, Member States which were receiving fewer numbers would have to take more to help out. If they refused, they would have to pay €250,000 per applicant.

The 2020 proposal drops some of the controversial proposals from 2016, including the ‘bottleneck’ in the Member State of entry (the current rule, giving Member States an option to decide if a non-EU country is responsible for the application on narrower grounds than in the 2016 proposal, would still apply). Also, the sovereignty clause would now remain unchanged.

However, the 2020 proposal also retains parts of the 2016 proposal: the redefinition of ‘family member’ (which could be more significant now that the bottleneck is removed, unless Member States choose to apply the relevant rules on non-EU countries’ responsibility during the border procedure already); obligations for asylum seekers (redrafted slightly); some of the punishments for non-compliant asylum-seekers (the cut-off for considering evidence would stay, as would the loss of benefits except for those necessary to ensure a basic standard of living: see the CJEU case law in CIMADEand Haqbin); dropping the provision on evidence of family links; changing the rules on responsibility for unaccompanied minors; retaining part of the changes to the irregular entry criterion (it would now cease to apply after three years; the Sangatte clause would still be dropped; it would apply after search and rescue but not apply in the event of relocation); curtailing judicial review (the grounds would still be limited; the time limit to appeal would be 14 days; courts would not have a strict deadline to decide; suspensive effect would not apply in all cases); and the reduced time limits for detention.

The wholly new features of the 2020 proposal are: some vague provisions about crisis management; responsibility for an asylum application for the Member State which issued a visa or residence document which expired in the last three years (the current rule is responsibility if the visa expired less than six months ago, and the residence permit expired less than a year ago); responsibility for an asylum application for a Member State in which a non-EU citizen obtained a diploma; and the possibility for refugees or persons with subsidiary protection status to obtain EU long-term resident status after three years, rather than five.

However, the most significant feature of the new proposal is likely to be its attempt to solve the underlying issue of disproportionate allocation of asylum seekers. Rather than a mechanical approach to reallocating responsibility, the 2020 proposal now provides for a menu of ‘solidarity contributions’: relocation of asylum seekers; relocation of refugees; ‘return sponsorship’; or support for ‘capacity building’ in the Member State (or a non-EU country) facing migratory pressure. There are separate rules for search and rescue disembarkations, on the one hand, and more general migratory pressures on the other. Once the Commission determines that the latter situation exists, other Member States have to choose from the menu to offer some assistance. Ultimately the Commission will adopt a decision deciding what the contributions will be. Note that ‘return sponsorship’ comes with a ticking clock: if the persons concerned are not expelled within eight months, the sponsoring Member State must accept them on its territory.

Crisis management

The issue of managing asylum issues in a crisis has been carved out of the Dublin proposal into a separate proposal, which would repeal an EU law from 2001 that set up a framework for offering ‘temporary protection’ in a crisis. Note that Member States have never used the 2001 law in practice.

Compared to the 2001 law, the new proposal is integrated into the EU asylum legislation that has been adopted or proposed in the meantime. It similarly applies in the event of a ‘mass influx’ that prevents the effective functioning of the asylum system. It would apply the ‘solidarity’ process set out in the proposal to replace the Dublin rules (ie relocation of asylum seekers and other measures), with certain exceptions and shorter time limits to apply that process.

The proposal focusses on providing for possible exceptions to the usual asylum rules. In particular, during a crisis, the Commission could authorise a Member State to apply temporary derogations from the rules on border asylum procedures (extending the time limit, using the procedure to fast-track more cases), border return procedures (again extending the time limit, more easily justifying detention), or the time limit to register asylum applicants. Member States could also determine that due to force majeure, it was not possible to observe the normal time limits for registering asylum applications, applying the Dublin process for responsibility for asylum applications, or offering ‘solidarity’ to other Member States.

Finally, the new proposal, like the 2001 law, would create a potential for a form of separate ‘temporary protection’ status for the persons concerned. A Member State could suspend the consideration of asylum applications from people coming from the country facing a crisis for up to a year, in the meantime giving them status equivalent to ‘subsidiary protection’ status in the EU qualification law. After that point it would have to resume consideration of the applications. It would need the Commission’s approval, whereas the 2001 law left it to the Council to determine a situation of ‘mass influx’ and provided for the possible extension of the special rules for up to three years.

Other measures

The Commission has also adopted four soft law measures. These comprise: a Recommendationon asylum crisis management; a Recommendationon resettlement and humanitarian admission; a Recommendationon cooperation between Member States on private search and rescue operations; and guidanceon the applicability of EU law on smuggling of migrants – notably concluding that it cannot apply where (as in the case of law of the sea) there is an obligation to rescue (see further analysis here).

On other issues, the Commission plan is to use current legislation – in particular the recent amendment to the visa code, which provides for sticks to make visas more difficult to get for citizens of countries which don’t cooperate on readmission of people, and carrots to make visas easier to get for citizens of countries which do cooperate on readmission. In some areas, such as the Schengen system, there will be further strategies and plans in the near future; it is not clear if this will lead to more proposed legislation.

However, on legal migration, the plan is to go further than relaunching the amendment of the Blue Card Directive, as the Commission is also planning to propose amendments to the single permit and long-term residence laws referred to above – leading respectively to more harmonisation of the law on admission of non-EU workers and enhanced possibilities for long-term resident non-EU citizens to move between Member States (nb the latter plan is separate from this week’s proposal to amend this law as regards refugees and people with subsidiary protection already). Both these plans are relevant to British citizens moving to the EU after the post-Brexit transition period – and the latter is also relevant to British citizens covered by the withdrawal agreement.

Comments

This week’s plan is less a complete restart of EU law in this area than an attempt to relaunch discussions on a blocked set of amendments to that law, which moreover focusses on a limited set of issues. Will it ‘work’? There are two different ways to answer that question.

First, will it unlock the institutional blockage? Here it should be kept in mind that the European Parliament and the Council had largely agreed on several of the 2016 proposals already; they would have been adopted in 2018 already had not the Council treated all the proposals as a package, and not gone back on agreements which the Council Presidency reached with the European Parliament. It is always open to the Council to get at least some of these proposals adopted quickly by reversing these approaches.

On the blocked proposals, the Commission has targeted the key issues of border procedures and allocation of asylum-seekers. If the former leads to more quick removals of unsuccessful applicants, the latter issue is no longer so pressing. But it is not clear if the Member States will agree to anything on border procedures, or whether such an agreement will result in more expulsions anyway – because the latter depends on the willingness of non-EU countries, which the EU cannot legislate for (and does not even address in this most recent package). And because it is uncertain whether they will result in more expulsions, Member States will be wary of agreeing to anything which either results in more obligations to accept asylum-seekers on their territory, or leaves them with the same number as before.

The idea of ‘return sponsorship’ – which reads like a grotesque parody of individuals sponsoring children in developing countries via charities – may not be appealing except to those countries like France, which have the capacity to twist arms in developing countries to accept returns. Member States might be able to agree on a replacement for the temporary protection Directive on the basis that they will never use that replacement either. And Commission threats to use infringement proceedings to enforce the law might not worry Member States who recall that the CJEU ruled on their failure to relocate asylum-seekers after the relocation law had already expired, and that the Court will soon rule on Hungary’s expulsion of the Central European University after it has already left.

As to whether the proposals will ‘work’ in terms of managing asylum flows fairly and compatibly with human rights, it is striking how much they depend upon curtailing appeal rights, even though appeals are often successful. The proposed limitation of appeal rights will also be maintained in the Dublin system; and while the proposed ‘bottleneck’ of deciding on removals to non-EU countries before applying the Dublin system has been removed, a variation on this process may well apply in the border procedures process instead. There is no new review of the assessment of the safety of non-EU countries – which is questionable in light of the many reports of abuse in Libya. While the EU is not proposing, as the wildest headbangers would want, to turn people back or refuse applications without consideration, the question is whether the fast-track consideration of applications and then appeals will constitute merely a Potemkin village of procedural rights that mean nothing in practice.

Increased detention is already a feature of the amendments proposed earlier: the reception conditions proposal would add a new ground for detention; the return Directive proposal would inevitably increase detention due to curtailing voluntary departure (as discussed here). Unfortunately the Commission’s claim in its new communication that its 2018 proposal is ‘promoting’ voluntary return is therefore simply false. Trump-style falsehoods have no place in the discussion of EU immigration or asylum law.

The latest Eurodac proposal would not do much compared to the 2016 proposal – but then, the 2016 proposal would already constitute an enormous increase in the amount of data collected and shared by that system.

Some elements of the package are more positive. The possibility for refugees and people with subsidiary protection to get EU long-term residence status earlier would be an important step toward making asylum ‘valid throughout the Union’, as referred to in the Treaties.  The wider definition of family members, and the retention of the full sovereignty clause, may lead to some fairer results under the Dublin system. Future plans to improve the long-term residents’ Directive are long overdue. The Commission’s sound legal assessment that no one should be prosecuted for acting on their obligations to rescue people in distress at sea is welcome. The quasi-agreed text of the reception conditions Directive explicitly rules out Trump-style separate detention of children.

No proposals from the EU can solve the underlying political issue: a chunk of public opinion is hostile to more migration, whether in frontline Member States, other Member States, or transit countries outside the EU. The politics is bound to affect what Member States and non-EU countries alike are willing to agree to. And for the same reason, even if a set of amendments to the system is ultimately agreed, there will likely be continuing issues of implementation, especially illegal pushbacks and refusals to accept relocation.

Barnard & Peers: chapter 26

JHA4: chapter I:3, chapter I:4, chapter I:5, chapter I:6, chapter I:7

Photo credit: DW

*I have worked as an independent consultant for the impact assessment regarding the background of some of this week’s proposals. My views are, however, independent of any EU institution or Member State. 

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