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"
Date: 2001-10-17
Institutions: European Economic and Social Committee
Subjects: European Union, foreign national, free movement of persons, residence, rights of aliens

8.2.2002

EN

Official Journal of the European Communities

C 36/59

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
Castan˜ os.

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

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.

1.1.
This proposal for a Directive by the European Com-
mission 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.

In general terms the Committee welcomes this Direc-
1.2.
tive, 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.

A distinction is made between long-term resident
2.2.
status and the permit that must be issued to the person who
has this status. While the permit is renewable (for ten-year

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.

The Directive lays down the rights of

2.5.
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 expul-
sion, 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 con-
ditions, the long-term resident of one State will have the right
to temporary residence in a second Member State.

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Official Journal of the European Communities

8.2.2002

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.

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.

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 establish-
ment 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

3.2.2.
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.

3.2.1.
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

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. (Accord-
ing to Art. 5(3)(a), periods of absence exceeding six months
will not be allowed.) The Committee believes that the accept-
able period of absence in such cases should be extended. In
addition, flexible arrangements are needed for absences due to
participation in co-development projects.

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Official Journal of the European Communities

C 36/61

3.4.

Long-term resident status for family members

The requirement

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

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
two years. Family members would,
therefore, only have to be resident for two years in order to
acquire permanent status, rather than five.

for at

least

The reference to public order and domestic security in
4.2.
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. 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.

4.3.1. 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.

4.1.1.
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.

4.4.
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.

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

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

(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.

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).

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8.2.2002

4.7.
Both nationals of Member States and third country
nationals with long-term resident status must enjoy compar-
able 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

Although it does not fall to this Directive to discuss
5.1.
legalising the situation of third-country nationals who are

Brussels, 17 October 2001.

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.

It

that

is vital

the Directive under discussion is
5.2.
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.

The President

of the Economic and Social Committee

Göke FRERICHS