Opinion of the Economic and Social Committee on the "Proposal for a Council Directive concerning the status of third-country nationals who are long-term residents"

(2002/C 36/13)

On 5 June 2001 the Council decided to consult the Economic and Social Committee, under Article 63 of the Treaty establishing the European Community, on the above-mentioned proposal.

The Section for Employment, Social Affairs and Citizenship, which was responsible for preparing the Committee's work on the subject, adopted its opinion on 3 October 2001. The rapporteur was Mr Pariza Castaños.

At its 385th plenary session (meeting of 17 October 2001), the Economic and Social Committee adopted the following opinion by 87 votes to one, with seven abstentions.

1. Introduction

1.1. This proposal for a Directive by the European Commission is the first step towards drawing up Community immigration legislation concerning the admission and rights of third-country nationals. This is also in line with the criteria announced by the Commission in its Communication on a Community immigration policy. Community immigration legislation will regulate two main areas: the rights of long-term residents, and the admission and initial rights of third-country nationals. The Committee welcomes the speed with which the Commission has started drawing up these directives.

1.2. In general terms the Committee welcomes this Directive, as it meets the expectations created by the Commission itself and takes account of points raised not only in its Communication on a Community immigration policy but also by the Economic and Social Committee in its comments on this Communication.

2. Gist of the Proposal for a Directive

2.1. According to the proposal, long-term resident status will be granted at the request of the interested party providing they have completed a five-year period of legal residence and meet a number of criteria. The most important requirements or conditions are that the applicant i) has not exceeded the maximum period of absence from the Member State in which he is resident (i.e. 6 months), ii) has adequate economic resources and sickness insurance, and iii) is not considered a threat to public order or domestic security.

2.2. A distinction is made between long-term resident status and the permit that must be issued to the person who has this status. While the permit is renewable (for ten-year periods at a time), the status is permanent. While failure to renew the permit is considered an administrative oversight, it does not affect the continuity of long-term resident status.

2.3. Although long-term resident status is permanent, it may be withdrawn on certain grounds, i.e. absence from the Member State for a period of more than two consecutive years, proof that such status was acquired by fraudulent means, and acquirement of such status in a second Member State.

2.4. A number of legal guarantees are provided, e.g. if an application for long-term resident status is rejected, reasons must be given and the applicant will have the right to apply to the courts of the Member State concerned.

2.5. The Directive lays down the rights of long-term residents in a number of areas, in accordance with the general criteria of equal treatment with nationals. Areas mentioned include: the right to work, education, social security, health care, access to goods and services, freedom of association and trade union affiliation, and freedom of movement throughout the territory of the Member State concerned.

2.6. Long-term residents will be protected against expulsion, except in cases where their conduct may constitute a serious threat to public order or domestic security.

2.7. The long-term resident's right to residence in a second Member State is an important aspect of the Directive and is discussed in a separate chapter. This right is subject to the following conditions: possession of a job offer in another Member State, pursuit of studies, and possession of own economic resources. Providing they comply with these conditions, the long-term resident of one State will have the right to temporary residence in a second Member State.

2.8. Family members will also have the right to accompany or join long-term residents who are exercising their right to residence in a second Member State.

2.9. The permit granted by the second Member State must be temporary and renewable as it is only possible to hold long-term resident status in one Member State. While resident in the second Member State, the person maintains long-term resident status in the first.

2.10. According to the proposal for a Directive, long-term residents enjoy the same rights in the second Member State as in the first, with the exception of social assistance and study grants.

2.11. Long-term residents may apply for long-term resident status in the second Member State after five years' residence. They will, however, lose their long-term resident status in the first Member State.

3. General comments

3.1. Rights enjoyed by long-term residents

3.1.1. Although necessary, the list of rights set out in Article 12(1) is not sufficient as it could lead to problems regarding the enjoyment of other rights which are not mentioned. A general clause should be included providing for equal rights with Community residents except where different regulations apply, such as freedom of movement and establishment in another Member State and the right to vote.

3.1.2. This will create a hierarchy of rights depending on the length of residency, as established in the Commission Communication; long-term residents will have the same rights as Community residents except in the two respects mentioned above.

3.2. Right to vote

3.2.1. In its explanatory memorandum, the Commission mentions political developments, recognising the importance for integration of voting rights and access to nationality; however, it also points out that there is no legal basis for including these two aspects in the Directive (Explanatory Memorandum, 5.5). The Committee believes these aspects should be dealt with separately, rather than included in the same package. While access to nationality is, without doubt, a matter reserved solely for Member States, the right to vote in municipal and European elections could be dealt with by European legislation. The next IGC on the reform of the Treaties must address this issue.

3.2.2. The Committee believes that Community legislation on the right of long-term residents to vote in municipal and European elections must be considered as it is also a very important instrument for integration.

3.3. Mobility between country of residence and country of origin

3.3.1 The Communication from the Commission on a Community immigration policy was clearly in favour of encouraging the mobility of migrants between their European country of residence and country of origin, as a way of promoting initiatives for economic development in the latter. This Directive is in the same vein, but stops short by limiting the amount of time a resident may be absent from the country to two years. (According to Art. 10(1)(a), permanent status will be withdrawn if the period of absence exceeds two years.) Member States may allow longer absences if they are due to "detachment for employment purposes", referring primarily to employees who are transferred by their company. Provision is also made for Member States to extend the two-year period.

3.3.2. If people with long-term resident status in the European Union are to be encouraged to participate in economic activities in their country of origin, the period of absence allowed must be extended.

3.3.3. When long-term residents go to their country of origin to work on cooperation projects funded by the country in which they reside or by Community funds, they should be able to retain long-term resident status for as long as the project and hence their absence lasts.

3.3.4. The same criteria must be applied to periods of absence allowed during the first five years of temporary residence prior to acquiring long-term resident status. (According to Art. 5(3)(a), periods of absence exceeding six months will not be allowed.) The Committee believes that the acceptable period of absence in such cases should be extended. In addition, flexible arrangements are needed for absences due to participation in co-development projects.

3.4. Long-term resident status for family members

3.4.1. The proposal for a Directive makes no reference to the acquisition of long-term resident status by family members. Consideration must be given to granting permanent status to family members of people with permanent resident status.

3.4.2. The Committee proposes that spouses and other family members who enjoy the right to family reunification(1) must be granted the same permanent resident status as the first member of the family who was granted such status. This could be subject to the condition that they have been legally resident for at least two years. Family members would, therefore, only have to be resident for two years in order to acquire permanent status, rather than five.

4. Specific comments

4.1. Two of the conditions laid down for acquiring long-term resident status are evidence of economic resources and sickness insurance (Art. 6). These must be reconsidered, as long-term resident status must be granted solely on the basis of the period of legal residence (five years), while taking account of the criteria established at the Tampere Council.

4.1.1. If the person applying for long-term resident status was granted temporary residence for the previous five years on the basis of employment (whether in an employed or self-employed capacity), the only requirement that may be imposed is that they are actively engaged in or seeking employment. This requirement could not, however, be imposed on family members.

4.1.2. Furthermore, the proposed Directive's definition of adequate and stable financial resources is ambiguous and could result in arbitrary decisions by Member States.

4.1.3. The requirement for sickness insurance is also unjustified as residents must have access to the public health system on the same terms as nationals.

4.2. The reference to public order and domestic security in Art. 7 must not result in arbitrariness. A clearer definition is needed of how great a threat to public order or domestic security warrants refusal of the status. Particular account will have to be taken of all the rulings passed down on these questions by the European Court of Justice.

4.3. The relevant authority in each Member State will be required to provide a definite reply within six months to the person applying for permanent status (Art. 8.2), as stipulated in the proposal for a Directive. However, the Committee recommends that in practice a reply be provided within three months at most. The whole administrative procedure will be free of charge for the applicant. In countries where the concept of "administrative silence" is recognised, failure to reply will go in the applicant's favour. We propose that a new point be added to the Directive to this effect.

4.3.1. When a long-term resident applies for temporary residence in a second Member State, this State should reply within six weeks (not three months, as suggested in Art. 21 of the proposed Directive) as such a long deadline has an adverse impact on employment, companies and the mobility of individuals.

4.4. Article 13(1) on the protection against expulsion of people with long-term resident status must not result in arbitrariness. Particular account will have to be taken of all the rulings passed down on these questions by the European Court of Justice.

4.5. Article 13(5) should specify that the judicial redress procedure against expulsion must always have suspensory effect in all the Member States.

4.6. The Committee makes the same points as in 4.3 above regarding the mandatory and explicit nature of the reply, "administrative silence" and the whole procedure being free of charge for the applicant when the long-term resident has applied for residency in a second Member State (Art. 21).

4.7. Both nationals of Member States and third country nationals with long-term resident status must enjoy comparable rights in the second Member State (Art. 24) as in the first, although adjusted to the laws and customs of the second state. The exception relating to social assistance and study grants should therefore be deleted from the proposed Directive, and efforts made to avoid any additional burden on public funds in the second state.

5. Final comments

5.1. Although it does not fall to this Directive to discuss legalising the situation of third-country nationals who are inside the European Union illegally, the Committee notes that a solution must be found to this problem. The Commission should take the initiative, so that the fundamental rights of such people can be effectively recognised and the measures needed to legalise their situation adopted.

5.2. It is vital that the Directive under discussion is implemented throughout the EU. The Committee therefore calls specifically on the governments of the United Kingdom, Ireland and Denmark to implement this Directive. It believes this would be a very positive step towards making long-term residents' right to freedom of movement effective.

Brussels, 17 October 2001.

The President

of the Economic and Social Committee

Göke Frerichs

(1) ESC Opinion on Family reunification - OJ C 204, 18.7.2000 and ESC Opinion on Temporary protection/mass influx of displaced persons - OJ C 155, 29.5.2001.