Explanatory Memorandum to COM(2022)650 - Status of third-country nationals who are long-term residents (recast) - Main contents
Please note
This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2022)650 - Status of third-country nationals who are long-term residents (recast). |
|---|---|
| source | COM(2022)650  |
| date | 27-04-2022 |
Contents
- CONTEXT OF THE PROPOSAL
- BUDGETARY IMPLICATIONS
- 2. LEGAL BASIS, SUBSIDIARITY AND PROPORTIONALITY
- 3. RESULTS OF EX-POST EVALUATIONS, STAKEHOLDER CONSULTATIONS AND IMPACT ASSESSMENTS
- Opinion of the Regulatory Scrutiny Board
- Amounts presented are the average value of all average annual cost savings across measures included within the preferred option
- 5. OTHER ELEMENTS
- Article 4
- Article 5
- Article 6
- Article 7
- Article 8
- Article 9
- Article 10
- Article 11
- Article 12
- Article 13
- Article 14
- Article 15
- Article 21
- Article 24
- Article 25
- Article 26
- Article 27
• Reasons for and objectives of the proposal
This proposal is part of a package of measures proposed as a follow-up to the Commission’s Communication on a New Pact on Migration and Asylum 1 , adopted on 23 September 2020, which underlined the need to address the main shortcomings of the EU policy on legal migration, responding to the overall objective of attracting the skills and talent the EU needs. As one of the measures of this ‘Skills and talent’ package, the Pact announced a recast of Directive 2003/109/EC on long-term residents, with the objective to create a true EU long-term resident status, in particular by strengthening the right of long-term residents to move and work in other Member States. The package also includes the recast of the Single Permit Directive 2011/98/EU 2 and an accompanying Communication setting out a new approach towards an ambitious and sustainable EU legal migration policy, attracting talent to our labour markets and creating safe channels to reach Europe 3 .
The vast majority of migrants arrive and reside in Europe legally. The overall number of third-country nationals legally residing in the EU is 23 million, representing 5.1 % of the EU population 4 . Out of this, over 10 million 5 third-country nationals hold a long-term or permanent residence permit. This is the target group that Directive 2003/109/EC concerning the status of third-country nationals who are long-term residents 6 – hereafter ‘the Directive’ – is meant to cover.
The Directive sets out the conditions under which third-country nationals who have legally and continuously resided in a Member State for at least five years can acquire ‘EU long-term resident status’ (‘EU LTR status’). The advantages of this status are numerous: it is permanent, it grants equal treatment rights in many areas (including full access to employed and self-employed activities), and it ensures reinforced protection against expulsion. While these advantages may also be granted by permanent resident statuses regulated under national law (the Directive allows these parallel national schemes), the EU LTR status additionally grants the possibility to move and reside in other Member States, on the basis of three comprehensive grounds: exercise of an economic activity (work or self-employment); studies and vocational training; other purposes. This right to intra-EU mobility is not, however, an automatic right, but is subject to a number of conditions.
The evaluation of the Directive under the Fitness Check on legal migration 7 , which was completed in 2019, and its implementation reports 8 identified a number of shortcomings with regard to the achievement of the objectives, as well as practical issues arising from the application of the Directive by the Member States.
This proposal aims to create a more effective, coherent and fair system to acquire EU long-term resident status. This system should be a key tool to promote the integration of third-country nationals who settled legally and on a long-term basis in the EU.
The proposal aims at making it easier to acquire EU long-term resident status, in particular: by allowing third-country nationals to cumulate residence periods in different Member States in order to fulfil the requirement concerning the duration of residence; and by clarifying that all periods of legal residence should be fully counted, including residence periods as students, beneficiaries of temporary protection, or residence periods initially based on temporary grounds. Periods of legal stay under a short-term visa are not considered as periods of residence, and should not be counted.
The proposal also aims to strengthen the rights of long-term residents and their family members. This includes the right to move and work in other Member States, which should be closely aligned to the right that EU citizens enjoy. Allowing third-country nationals who are already EU long-term residents in one Member State to change jobs and move to another Member State for work can help improve labour market effectiveness across the EU, addressing skills shortages and offsetting regional imbalances. It can also improve the EU’s overall attractiveness to foreign talent.
The proposal additionally puts in place a mechanism to ensure a level playing field between the EU long-term residence permit and national permanent residence permits in terms of procedures, equal treatment rights, and access to information, so that nationals from non-EU countries have a real choice between the two permits. It also facilitates circular migration by making it easier for long-term residents to return to their country of origin without losing their rights, benefiting both the countries of origin and the countries of residence.
The European Parliament, in its Resolution of 21 May 2021 on new avenues for legal labour migration 9 , welcomed the Commission’s planned revision of the Directive, stating that this ‘presents an opportunity to enhance mobility and simplify and harmonise procedures’. In its Resolution of 25 November 2021 with recommendations to the Commission on legal migration policy and law 10 , the European Parliament requested the Commission to amend the Directive to grant EU long-term residents an effective right to intra-EU mobility and to reduce the number of years of residence required to acquire EU long-term resident status from five to three years.
Since the entry into force of the Directive in 2003, the Commission has received a significant number of complaints (in particular from applicants or holders of the EU LTR status), some of them followed up by infringement proceedings, and numerous issues were also subject to judgements of the Court of Justice of the European Union (hereinafter: CJEU). This recast also aims to address the main shortcomings that emerged from infringement proceedings and to codify the case law of the CJEU.
• Consistency with existing provisions in the policy area
This proposal is consistent with the Commission’s New Pact on Migration and Asylum 11 , adopted on 23 September 2020, which underlined the need to address the main shortcomings of the EU policy on legal migration, responding to the overall objective of attracting the skills and talent the EU needs.
This proposal is complementary to other EU instruments adopted in the area of legal migration and asylum, and in particular those Directives that regulate residence statuses that can lead to long-term residence: the EU Blue Card Directive 2009/50/EC on highly-qualified workers 12 , the Single Permit Directive 2011/98/EU 13 , Directive (EU) 2016/801 on Students and Researchers 14 , Directive 2003/86/EC on Family reunification 15 (hereinafter: legal migration Directives), the Return Directive 2008/115/EC 16 and Directive 2011/95/EU on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection 17 .
This proposal is consistent with the Action Plan on Integration and Inclusion 2021-2027 18 providing a common policy framework to help Member States as they further develop and strengthen their national integration policies for third-country nationals, including EU long-term residents.
• Consistency with other Union policies
This proposal is consistent with and supportive of the objectives of the Commission's Communication of 27 May 2020 entitled ‘Europe's moment: Repair and Prepare for the Next Generation’ 19 , which sets the Union’s path to recovery towards a greener, digital and more resilient economy and society, where the need to improve and adapt skills, knowledge and competences becomes all the more important. Measures to improve the integration and the intra-EU mobility of third-country nationals who are long-term residents have to be seen in that broader context.
It is also in line with the European Skills Agenda 20 , which called for a more strategic approach to legal migration, oriented towards better attracting and keeping talent, and specifically to the need of better matching, clear procedures and the recognition of third-country nationals’ competences on the EU labour market.
• Legal basis
The legal basis of the proposal is Article 79(2) TFEU, which empowers the European Parliament and the Council to act in accordance with the ordinary legislative procedure and to adopt measures on: (a) the conditions of entry and residence, and standards on the issue by Member States of long-term visas and residence permits; and (b) the definition of the rights of third-country nationals residing legally in a Member State, including the conditions governing freedom of movement and of residence in other Member States.
• Subsidiarity (for non-exclusive competence)
The principle of subsidiarity applies since this is an area of shared competence 21 . The need for a common EU framework on legal migration is linked to the abolition of internal border controls within the EU and the creation of the Schengen area. In this context, the migration policies and decisions of one Member State affect other Member States, so it is deemed necessary to have a set of common EU rules in relation to the conditions and procedures for the entry and residence of third-country nationals in the Member States, and to define their rights following admission 22 .
The Fitness Check showed that the legal migration Directives, including the long-term residents Directive, have had a number of positive effects that would not have been realised by Member States acting alone, such as a degree of harmonisation of conditions, procedures and rights, helping to create a level playing field across Member States; simplified administrative procedures; improved legal certainty and predictability for third-country nationals, employers, and administrations; improved recognition of the rights of third-country nationals (namely the right to be treated on an equal basis with nationals in a number of important areas, such as working conditions, access to education and social security benefits, and procedural rights); improved intra-EU mobility.
The recast of the long-term residents Directive aims at further harmonisation and simplification. In particular, improved rights would benefit third-country nationals and facilitated access to EU long-term resident status would ensure a secure and stable residence status for third-country nationals who would not otherwise satisfy the conditions for acquiring citizenship status. Furthermore, efficient rules on intra-EU mobility can only be established at EU level, since no national migration policy has ever provided facilitations for applications from third-country nationals residing in another Member State. Furthermore, the Member States’ prerogative to determine volumes of admission of third-country nationals coming from third countries to their territory in order to seek work relates only to third-country nationals coming from outside the EU, and does not apply to their intra-EU mobility. Therefore, EU rules have an important influence on the efficient mobility of third-country nationals across the Member States.
• Proportionality
The changes to the long-term residents Directive introduced by this proposal are limited and targeted, aimed at effectively addressing the key shortcomings identified in the implementation and evaluation of the Directive. According to the Impact Assessment, the proposed changes are limited to those aspects that Member States cannot achieve satisfactorily on their own, and the administrative burden on stakeholders would not be disproportionate vis-à-vis the objectives to be achieved, also because those measures would only update or complement the already existing procedures. In particular, the required adaptations to administrative procedures by Member States are considered proportionate in view of the expected improvements in the situation of third-country nationals, increased opportunities for employers, and simplifications for national administrations.
In the light of the above, the proposal does not go beyond what is necessary in order to achieve the stated objectives.
• Choice of the instrument
This proposal is intended to provide for targeted changes to the Directive, which are intended to address the gaps, inconsistencies and shortcomings identified from the implementation and evaluation of the Directive. Since this proposal is to recast the Long-term residents Directive, the same legal instrument is the most appropriate.
• Ex-post evaluations/fitness checks of existing legislation
The first implementation report in 2011 assessed the conformity of national legislations with the provisions of the Directive and revealed a general lack of information among third-country nationals about the EU long-term resident status and the rights attached to it, as well as many shortcomings in the transposition of the Directive. The second implementation report in 2019 pointed out that the situation had improved, but that some outstanding issues continue to undermine the full achievement of the Directive's main objectives.
The 2019 Fitness Check on Legal Migration presents an in-depth evaluation of the overall EU legal migration framework, to assess whether it is still fit for purpose. With particular regard to the long-term residents Directive, the Fitness Check showed that there are a number of inconsistencies with other EU Directives on legal migration adopted later, in particular with regard to the rights granted to long-term residents and their family members, including on intra-EU mobility. It also found a lack of coordination and coherence between the EU long-term resident status and the parallel national permanent residence schemes, and the more frequent use of the national schemes compared to the EU scheme.
Building on the implementation reports and the Fitness Check, the problems identified in the proposal have been clustered into six main areas: i) the EU LTR status is under-used; ii) the conditions to acquire the EU LTR status are too difficult to meet; iii) long-term residents face numerous barriers to exercise intra-mobility rights; iv) there is a lack of clarity and consistency in the rights of the long-term residents and their family members; v) circular migration opportunities for long-term residents are limited; vi) there is a risk of abusive acquisition of the EU LTR status on the basis of investor residence schemes pursuant to which the issuing of residence permits is not subject to the requirement of continuous physical presence in the Member State or is merely subject to the requirement of the investor’s presence in the Member State for a limited time.
• Stakeholder consultations
A wide consultation, including a public consultation, was conducted in the context of the Fitness Check on legal migration 23 . Between 23 September and 30 December 2020, another online public consultation on the future of legal migration was conducted via the Commission’s ‘Have your say’ portal 24 . Targeted consultations, asking more technical questions on the revision of the Directive, took place in the first half of 2021. Some of these consultations were carried out by the Commission independently and some in the context of a study commissioned to an external contractor. Ad hoc queries were also launched in the framework of this impact assessment to the members of the European Migration Network.
Replies to the two above-mentioned public consultations came from EU citizens, organisations and third-country nationals (residing inside or outside the EU), business associations and organisations, non-governmental organisations, academic/research institutions, trade unions, ministries, and public service entities. Targeted consultations included competent authorities in the Member States, business associations and organisations, non-governmental organisations, academia, legal practitioners, think tanks and public service entities.
The consultation process showed, in general, that migrants already residing in, or considering moving to, the EU are negatively affected by the shortcomings of the current Directive, which results in administrative burden, lengthy waiting times, uncertainty and confusion as to applicable rules and outcomes. This may discourage migrants from applying for EU LTR status. Limits on the set of rights linked to EU LTR status, especially as regards family reunification and intra-EU mobility, may hamper the EU’s attractiveness in the eyes of third-country nationals and limit their integration in the host societies. It also impacts countries of origin indirectly, as insufficient integration of their nationals in the host countries may lead to lower levels of remittance transfers.
All the main problems identified in the consultations have been taken into account and addressed in the proposal.
• Collection and use of expertise
The impact assessment on the revision of the Directive was supported by a study of an external contractor 25 . Furthermore, a number of expert groups were consulted on the revision of the Directive: the Expert Group on the Views of Migrants in the field of Migration, Asylum and Integration on 2 March 2021, the European Network of Public Employment Services on 10 March 2021, the Commission Informal Expert Group on Economic Migration on 14 April 2021, and the EU Legal Migration Practitioners’ Network on 29 April 2021. The European Migration Network was also consulted with an ad-hoc query 26 .
• Impact assessments
The impact assessment carried out for the preparation of the proposal evaluated four policy options, presenting a range of increasingly ambitious policy measures:
Option 1: actions to improve the effectiveness of the Directive. This policy option involved non-legislative actions aimed at enhancing the implementation of the Directive and the promotion of the EU LTR status, without any legislative change.
Option 2: targeted revision of the Directive. This policy option included a number of targeted amendments to the Directive, aimed at creating a more efficient, coherent and fair system to acquire the EU LTR status, in particular by ensuring a level playing field with the parallel national statuses; and improving the rights of long-term residents and their family members, including an improved right to intra-EU mobility.
Option 3: wider legislative revision of the Directive. This policy option included the targeted amendments of option 2, while also providing facilitations with regard to the conditions to acquire the EU LTR status. In particular, with this option Member States would be allowed to reduce the required residence period to apply for the EU LTR status from five to three years (without placing Union citizens - and their family members - who are beneficiaries of free movement rights in accordance with EU law in a less favourable situation than third-country nationals), and to cumulate residence periods in different Member States. Also, the conditions related to the economic resources and integration would be clarified.
Option 4: major legislative revision of the Directive, creating a single EU permanent residence status. This option sets out a fully harmonised EU permanent residence status, with the abolition of parallel national schemes, a lowered residence period required to acquire the status (to be applied by all Member States), and an automatic right to move and reside in a second Member State, with conditions similar to the ones applicable to EU citizens exercising their free movement rights.
On the basis of the assessment of the social and economic impacts, effectiveness and efficiency, the preferred policy option is option 3 – wider legislative revision of the Directive. The preferred option contains a large set of policy measures which would address most of the shortcomings identified within the Directive.
The preferred option is expected to have very positive social and economic impacts. The economic impacts are based on the expectation that more third-country nationals would have access to the EU LTR status with its attached rights, and an increased share of third-country nationals would be moving to a second Member State. This in turn would lead to overall higher tax revenue, increased productivity and consumption, and enhanced economic growth. In addition, as a result of higher wages, remittances are also expected to increase as a proportion of long-term residents’ income.
Furthermore, the preferred policy option would be fully in line with the policy objectives set out in the Commission’s New Pact on Migration and Asylum. It would also bring additional coherence with the case law of the Court of Justice of the European Union.
The preferred option is also considered to strike the best balance between the varied expectations of stakeholders, and is thus the most feasible politically. In this regard, the impact assessment highlighted a specific divergence of views on the added value of lowering the required residence period to acquire EU LTR status from five to three years. As it is not possible at this stage to determine conclusively the extent to which such a reduction would effectively contribute to boost the integration process of third-country nationals who intend to settle on a long-term basis in the EU, this proposal does not change the required residence period, which remains five years.
In particular, it is clear that third-country nationals still face different challenges across Member States in their integration process, depending on how they arrived, their skills level, language knowledge and their background, but also depending on the level of supporting measures put in place by Member States 27 . For this reason, there is currently no level-playing field across EU Member States with regard to the integration of third-country nationals that would require a harmonised approach to reducing the required residence period to acquire EU LTR status. Whilst allowing Member States to reduce the residence period to three years based on an optional approach was considered in the Impact Assessment, the Commission discarded this option to avoid fragmentation in the implementation of the Directive that it could introduce.
With the support of the framework set up at EU level by the Action Plan on Integration and Inclusion for 2021-27, the EU and its Member States are implementing numerous measures to facilitate and speed up the integration and inclusion of third-country nationals, and the Commission is monitoring progress made in this regard 28 . Based on this monitoring and a thorough assessment of how the rights tied to residence permits impact on the integration of third-country nationals across Member States, the Commission will review the issue of the required residence period for the acquisition of EU LTR status, to further inform reflection on a possible shortening of the five year threshold. This assessment will be presented in the first report on the application of the recast Directive, to be adopted within two years following the end of the transposition period.
While keeping the required residence period of five years as a general rule, the proposal however introduces two important changes that would provide European added value by greatly facilitating the acquisition of the EU LTR status in situations of mobility between Member States. First, the Commission proposes to allow cumulating residence periods in different Member States to reach the five year threshold. Second, that persons who already acquired EU LTR status in one Member State should only need three years to acquire the status in a second Member State.
On 22 September 2021 the impact assessment was submitted to the Regulatory Scrutiny Board and a meeting was held on 20 October 2021. The Board issued a positive opinion with reservations on 25 October 2021. The Board pointed to a number of elements of the impact assessment that should be addressed. Specifically, the Board requested further clarification concerning the scope of this initiative and how it articulates with the one revising the Single Permit Directive. Furthermore, the Board requested to bring out better the core differences in policy choices between the options, and better analyse whether alternative approaches to the proposed measures are possible. The Board also requested clarifications on how the optional measures for Member States will impact the effectiveness of the Directive. Finally, the Board sought additional analysis and evidence with regard to the potential impacts of abolishing the labour market test when moving to a second Member State.
These and other more detailed comments provided by the Board have been addressed in the final version of the impact assessment, which, in particular, describes in a clearer manner the problem definition and objectives of the initiative, and how the different policy options would address those problems and objectives. The Board’s comments have also been accounted for in the proposed directive.
• Regulatory fitness and simplification
This initiative was included in Annex II of the 2021 Commission work programme 29 , therefore it is part of the Regulatory Fitness Programme (REFIT).
| REFIT Cost Savings – Preferred Option | ||
| Description | Amount (average yearly saving) | Comments |
| Cost savings from simplification of the LTR Directive procedures currently in place | 24 500 euro | Member State national authorities |
| Cost savings from lower EU LTR fees, shorter procedures, the provision of better quality information on the EU LTR status resulting in a reduction in fees paid for legal support | 1 145 000 euro | Third-country nationals |
| Cost savings from a reduction in administrative fees and shorter procedures | 113 000 euro | Employers |
Amounts presented are the average value of all average annual cost savings across measures included within the preferred option
• Fundamental rights
This initiative is consistent with the Charter of Fundamental Rights and enhances some of the rights enshrined therein. It contributes to strengthening specific fundamental rights, in particular: non-discrimination (Article 21), family and professional life (Article 33) and social security and social assistance (Article 34).
There is no implication for the European Union budget.
• Implementation plans and monitoring, evaluation and reporting arrangements
The Commission will check the correct and effective transposition of the recast Directive into the national laws of all participating Member States. Throughout the implementation phase the Commission will organise regular contact committee meetings with all Member States. The Commission will present periodically to the European Parliament and the Council a report evaluating the implementation, functioning and impact of the long-term residents Directive.
The application of the Directive will be monitored against the main operational objectives using a series of relevant and measurable indicators based on easily available, accepted and credible data sources. The communication of more types of information is made mandatory in the revised Directive to improve its timely provision and reliability. Official European and national statistics published by Eurostat and competent national statistical authorities should be used as much as possible to monitor the number of EU long-term residence permits issued (also vis-a-vis national long-term residence permits) and, where possible, to monitor the number of third-country nationals exercising intra-EU mobility and circular migration. In addition, the Commission will continue seeking the support of existing EU agencies and networks, such as the Fundamental Rights Agency and the European Migration Network. The Commission will also continue making use of the existing expert groups that contributed to the impact assessment.
• Explanatory documents (for directives)
Given the fact that the proposal contains a larger number of legal obligations compared to the existing Directive, explanatory documents, including a correlation table between national provisions and the Directive, accompanying the notification of transposition measures will be needed so that the transposition measures that the Member States have added to existing legislation are clearly identifiable.
• Detailed explanation of the specific provisions of the proposal
CHAPTER I – GENERAL PROVISIONS
Articles 1 – 3
This Chapter sets out the subject matter, definitions, and scope of the proposal. The main change in the proposal for a recast concerns the scope of the Directive, as the exclusion concerning ‘cases where the residence permit has been formally limited’ has been removed, since its interpretation led to legal uncertainty in the transposition and implementation by Member States.
CHAPTER II – LONG-TERM RESIDENT STATUS IN A MEMBER STATE
This Article lays down the rules on the calculation of the period of residence required to apply for EU long-term resident status. The proposal for a recast introduces an important change aimed at allowing third-country nationals to cumulate periods of residence in different Member States, provided that they have accumulated two years of legal and continuous residence within the territory of the Member State of application. This new provision will promote the intra-EU mobility of third-country nationals, who will be able to rely on their residence in different Member States and acquire EU long-term resident status in a shorter period of time.
The proposal makes it clear that any period of residence spent as holder of a long-stay visa or residence permit issued under Union or national law should be fully counted for acquiring the EU long-term resident status, including periods of residence in a capacity or under a status that is currently excluded from the scope of the Directive, such as residence for study purposes or vocational training, residence as beneficiary of national or temporary protection, or residence initially based solely on temporary grounds. This provision is meant to cover those cases where a third-country national who previously resided in a capacity or under a status excluded from the scope of the Directive (e.g. as a student), subsequently resides in a capacity or under a status falling within the scope (e.g. as a worker). In those cases, it will be possible to fully count the periods of residence e.g. as a student, towards the completion of the five years period, provided that the overall residence has been legal and continuous.
Residence must have been legal and continuous. To prevent the risk of abusive acquisition of EU long-term resident status, Member States should ensure that the requirement of legal and continuous residence is duly monitored for all categories of third-country nationals. This risk is particularly relevant for those third-country nationals who hold a residence permit granted on the basis of any kind of investment in a Member State, as the granting of these residence permits is not always subject to the requirement of continuous physical presence in the Member State or is merely subject to the requirement of the investors’ presence in the Member State for a limited time.
To prevent this risk, Member States should strengthen checks on the residence requirement, with particular regard to applications for EU long-term resident status submitted by third-country nationals holding and/or having held a residence permit granted on the basis of an investment, in cases where the issuing of such permits has not been subject to the requirement of continuous physical presence in the Member State concerned or has been subject to the requirement of the investor’s presence in the Member State concerned for a limited time. The proposal includes also a provision not allowing Member States to take into account periods of residence as a holder of a residence permit granted on the basis of any kind of investment in another Member State for the purpose of cumulating periods of residence in different Member States. This provision is introduced with the aim to limit the attractiveness of such schemes and addresses the fact that not all Member States have regulated this category of residence permits. 30
This Article lays down the conditions to acquire the EU long-term resident status. Applicants must prove that they have adequate resources and sickness insurance, to avoid becoming a burden for the Member State, and they may be required to comply with integration conditions. The proposal introduces additional provisions aimed at clarifying them and at limiting the discretion of Member States, by codifying the case law of the Court of Justice of the European Union.
With regard to the resources condition, in line with the case law of the EU Court of Justice (Chakroun, C-578/08, and X v Belgische Staat, C-302/18), Member States may indicate a certain sum as a reference amount, but may not impose a minimum income level below which all applications for EU long-term resident status will be refused, irrespective of an actual examination of the situation of each applicant. When making an assessment of the possession of stable and regular resources, Member States may take into account factors such as contributions to the pension system and fulfilment of tax obligations. The concept of ‘resources’ does not concern solely the ‘own resources’ of the applicant for EU long-term resident status, but may also cover the resources made available to that applicant by a third party provided that, in the light of the individual circumstances of the applicant concerned, they are considered to be stable, regular and sufficient.
Member States should be able to require applicants for EU long-term resident status to comply with integration conditions, for example by requiring them to pass a civic integration or language examination. However, in line with the case law of the EU Court of Justice (P & S, C-579/13), the means of implementing this requirement should not be liable to jeopardise the objective of promoting the integration of third-country nationals, having regard, in particular, to the level of knowledge required to pass a civic integration examination, to the accessibility of the courses and material necessary to prepare for that examination, to the amount of fees applicable to third-country nationals as registration fees to sit that examination, or to the consideration of specific individual circumstances, such as age, illiteracy or level of education.
This Article provides that Member States may refuse granting EU long-term resident status on grounds of public policy and public security, as already provided for in Directive 2003/109/EC.
This Article lays down the administrative procedures for the acquisition of the status, similar to those already provided for in Directive 2003/109/EC. The proposal for a recast introduces a provision regulating in more detail the situations where the documents presented or information provided in support of the application are inadequate or incomplete, similar to what is already provided for in other more recent EU Directives on legal migration.
This Article lays down the rules on the issue of the residence permit certifying the EU long-term resident status. The proposal for a recast renames the permit ‘EU long-term residence permit’.
This Article lays down the mandatory and optional grounds for withdrawal and loss of the status, as already provided for in Directive 2003/109/EC. The proposal for a recast extends the possibility for EU long-term residents to be absent from the territory of the Union without losing their EU long-term resident status from the current 12 months to 24 months. This amendment aims at promoting circular migration for EU long-term residents, in particular to allow them to invest in their countries of origin and share the knowledge and skills acquired in the Union, as well as to return temporarily to their countries for personal and family circumstances.
In case of longer absences, Member States should establish a facilitated procedure for the re-acquisition of the EU long-term resident status. To improve legal certainty and promote circular migration, the proposal for a recast regulates the main conditions of such procedure, which according to Directive 2003/109/EC are regulated by national law. According to the proposal, Member States may decide not to require the fulfilment of the conditions related to the duration of residence, resources and sickness insurance. In any case, Member States should not require third-country nationals who apply for the re-acquisition of the EU long-term resident status to comply with integration conditions.
Finally, the proposal amends the wording of this Article in order to ensure consistency with the Return Directive 2008/115/EC.
This Article lays down the procedural guarantees relating to the refusal, withdrawal or loss of the status, as already provided for in Directive 2003/109/EC.
This Article introduces a new provision in line with the most recent EU Directives on legal migration and the case-law of the Court of Justice of the European Union (Commission v Netherlands, C-508/10), pursuant to which Member States may levy fees for the processing of applications and that the amount of such fees should not have the object or the effect of creating an obstacle to the obtaining of the long-term resident status conferred by the Directive, thus undermining the objective and the spirit of the latter.
This Article lays down the equal treatment rights for EU long-term residents, which are similar to those already provided for in Directive 2003/109/EC. The proposal for a recast introduces three main changes aiming at reinforcing the rights and improving the integration process for EU long-term residents.
First, it is clarified that EU long-term residents should have the same right as nationals with regard to the acquisition of private housing. The right to acquire private housing is particularly relevant taking account of the main objective of this Directive, which is the integration of EU long-term residents into the host society. Having the possibility of owning their own housing is an element that can contribute to the integration of third-country nationals who have chosen to put down roots in an EU Member State.
Second, this Article aligns the definition of social security and the right to the export of pensions and family benefits to the provisions of the most recent legal migration Directives. In particular, reference is made to Regulation (EC) No 883/2004 with regard to the definition of social security (point d of paragraph 1); EU long-term residents or their survivors moving to a third country should receive statutory pensions under the same conditions and at the same rates as the nationals of the Member States concerned, where such nationals move to a third country, in line with other legal migration Directives (paragraph 6).
Finally, the proposal extends the EU long-term residents’ equal access to social protection and social assistance, by removing the possibility for Member States to limit such access to ‘core benefits’.
This Article lays down rules guaranteeing a reinforced protection against decisions ending the legal stay of EU long-term residents. The wording of the Article has to be amended taking account of the fact that, since the adoption of Directive 2008/115, there are common rules on standards and procedures in Member States for returning illegally staying third-country nationals. The reinforced protection consists of limiting the possibility to end the legal stay of EU long-term residents solely where they constitute an actual and sufficiently serious threat to public policy or public security Furthermore, it is provided that decisions ending the legal stay of EU long-term residents should not be based on economic considerations.
This Article establishes that Member States are entitled to issue national residence permits of permanent or unlimited validity in parallel with the EU long-term residence permit. However, the proposal for a recast introduces new provisions aiming at ensuring a level playing field between the EU long-term residence permit and the national permanent residence permits, so that third-country nationals have a real choice between the two permits. In particular, Member States should ensure that: integration and resources requirements for acquiring the EU status are not stricter than the requirements to acquire the national status (paragraph 3 of Article 5); applicants for EU permits pay the same level of fees for the processing of their application as applicants for national permits (Article 11); holders of the EU long-term residence status do not enjoy a lower level of procedural safeguards and rights than holders of national residence permits of permanent or unlimited validity (paragraph 3 of Article 10, paragraph 8 of Article 12, paragraph 6 of Article 15); Member States should ensure the same level of information, promotion and advertising activities on the EU long-term residence permit as the one provided in respect of the national residence permits of permanent or unlimited validity (Article 27); holders of national permits of permanent or unlimited validity who apply for an EU long-term residence permit benefit from a facilitated procedure (paragraph 4 of Article 7).
This Article introduces new provisions to facilitate family reunification for EU long-term residents, derogating from the general rules of Directive 2003/86/EC. In particular, Member States should not apply conditions relating to integration for the purpose of family reunification, as EU long-term residents and their families are deemed to be integrated in the host society, and should not apply any time limit in respect of access to the labour market for family members.
Furthermore, this Article lays down specific rules on the acquisition of EU long-term resident status by children of EU long-term residents born or adopted in the territory of the Member State that issued the EU long-term residence permit, which at the moment is not regulated by any EU legal instrument. As family life should be respected and its protection is an essential element of the integration of EU long-term residents, their children who are born or adopted in the territory of the EU Member State having issued the EU long-term residence permit should acquire the EU long-term resident status in that Member State automatically, without being subject to the requirement of prior residence.
CHAPTER III – RESIDENCE IN THE OTHER MEMBER STATES
Articles 16 – 18
These Articles lay down the main rules and conditions for EU long-term residents and their family members to exercise intra-EU mobility. This proposal for a recast aims at facilitating the intra-EU mobility, by removing a number of barriers that have so far hampered it. In particular, the second Member State should no longer be entitled to carry out a check of the labour market situation when examining applications submitted by EU long-term residents for the exercise of an economic activity in an employed or self-employed capacity, and any pre-existing quotas for EU long-term residents residing to other Member States should be abolished. Furthermore, EU long-term residents should be entitled to apply while still residing in the first Member State, and to begin employment or study at the latest 30 days after having submitted their application. Finally, where EU long-term residents apply for residence in a second Member State in order to exercise a regulated profession, their professional qualifications should be recognised in the same way as those of Union citizens exercising the right to free movement, in accordance with Directive 2005/36/EC and other applicable Union and national law.
Articles 19 – 20
These Articles provide for that the second Member State may refuse applications for residence on grounds of public policy, public security, or public health, as already provided for in Directive 2003/109/EC. Article 20 aligns the definition of threat to public health to the provisions of the most recent legal migration Directives, via a cross-reference to the Schengen Borders Code.
This Article lays down the administrative procedures for the acquisition of the residence right in the second Member State, similar to those already provided for in Directive 2003/109/EC. The proposal for a recast introduces a shorter deadline (90 days + 30 days in exceptional circumstances), in line with the most recent legal migration Directives, and allows family members to cumulate residence periods in different Member States for the acquisition of an autonomous residence permit, by way of derogation from Directive 2003/86/EC.
Articles 22 – 23
These Articles lay down the rules on amendments to the EU long-term residence permit for beneficiaries of international protection, and on procedural guarantees related to mobility, as already provided for in Directive 2003/109/EC, as amended by Directive 2011/51/EU.
This Article provides that, once EU long-term residents and their family members acquire the right to reside in the second Member State, they should enjoy equal treatment with the nationals of the second Member States in the same areas and under the same conditions referred to in article 12 of the proposal. The latter improves the access to the labour market of the second Member State for the EU long-term residents and their family members residing in a second Member State, by removing the possibility for Member States to restrict such access in the first 12 months. However, in order to ensure that the criteria for residence in the second Member State continue to be fulfilled, the second Member State should be allowed to require that EU long-term residents and their family members communicate to the competent authorities any change of employer or economic activity.
This Article lays down the rules on withdrawal of the residence status in the second Member States and take back obligation in the first Member State, as already provided for in Directive 2003/109/EC, with a number of amendments aimed at ensuring consistency with the Return Directive 2008/115/EC, which sets out common standards and procedures to be applied in Member States for returning illegally staying third-country nationals.
This Article establishes that EU long-term residents residing in a second Member State should be granted the possibility of acquiring EU long-term resident status in the second Member State under the same conditions as those required for its acquisition in the first Member State. In order to speed up the integration in the second Member State for persons who have already integrated in another EU Member State, the proposal for a recast provides that the required period of residence in the second Member State should be three years. For the purpose of acquisition of EU long-term resident status in a second Member State, it should not be possible to cumulate periods of residence in different Member States.
However, the second Member State should be free to decide whether to grant social assistance, or maintenance assistance for studies, including vocational training, consisting of student grants or students loans, to EU long-term residents other than those who are workers or self-employed persons or their family members, prior to the completion of five years of legal and continuous residence in its territory, bearing in mind that Union citizens who have exercised free movement rights in a capacity other than that of workers or self-employed persons in accordance with Directive 2004/38/EC or Article 21 TFEU, or their family members, may also be refused such benefits prior to the acquisition of the right of permanent residence following five years of legal and continuous residence.
The second Member State may decide to grant such assistance to EU long-term residents prior to the completion of five years of legal and continuous residence, provided that it ensures the same treatment to Union citizens exercising free movement rights in accordance with Directive 2004/38/EC or Article 21 TFEU (other than workers, self-employed persons or persons who retain such status), their family members, as well as third-country nationals enjoying the right of free movement equivalent to that of Union citizens under an agreement between the Union and its Member States, on the one hand, and third countries on the other, and their family members.
Finally, prior to the completion of five years of legal and continuous residence in that Member State, where an EU long-term resident has ceased an employed or self-employed activity and he/she does not have sufficient resources for himself/herself and his/her family members and comprehensive sickness insurance cover so as not to become an unreasonable burden on the social assistance system of the second Member State, his/her legal stay may be ended on that ground, bearing in mind that Union citizens who have exercised free movement rights and their family members may be expelled in such a situation prior to the acquisition of the right of permanent residence following five years of legal and continuous residence.
CHAPTER IV – FINAL PROVISIONS
This new Article introduces an obligation for Member States to facilitate access to information to applicants concerning the acquisition of the EU long-term residence status and the rights attached to it, in line with the most recent legal migration Directives.
Articles 28 – 33
These Articles lay down the rules on reporting, contact points, transposition, entry into force and addressees, as already provided for in Directive 2003/109/EC. Article 31 provides that, once the transposition deadline for the recast Directive is passed, Directive 2003/109/EC is repealed.
2003/109/EC (adapted)