20 June 2011
1. The proposed Directive on long-term residents is a very welcome proposal from the Commission and there are strong arguments for the UK opting in to this proposal. In addition, there are a number of improvements that should be made to it.
Fulfilling the Tampere mandate
2. The Tampere European Council rightly called for the Community to ensure that third-country nationals present as long-term residents have rights as near as possible to those of Community nationals. Before assessing whether the proposal has reached that aim, it is necessary to examine the definition of 'long-term resident'.
3. We welcome the broad scope of persons who could qualify for this status, but it could be broader still. In particular, there seems no convincing ground to exclude persons who have been granted 'subsidiary protection' in a Member State from the effect of the proposal, given that most of them are in a similar position to refugees except for the legal status of the source of their persecution. Also, the drafting of the exclusions for asylum-seekers and students is unclear; it suggests that a person who applies for refugee recognition 'sur place' or who becomes a student while holding another type of residence status cannot apply for long-term residence status. The wording of these provisions could also be interpreted to mean that a child who has grown up in the country could not obtain long-term residence status until he or she has left the education system. This should be clarified.
4. In any event, if someone is a student, has been waiting for a decision on an asylum application or has held 'temporary' protection status for five years, they have likely laid down a considerable number of roots in the country. It would therefore be inappropriate to disqualify them from application to be considered a long-term resident.
5. Also, the treatment of Community nationals' family members in Article 3(3) is opaque. Such persons apparently cannot secure a right of permanent residence, according to the Kaba I judgment of the Court of Justice in April 2000. This situation may be changed by a Commission proposal on recasting the rights of Community nationals and their family members, but this proposal has not even been published yet, never mind adopted. Moreover, the Kaba case has been sent back to the Court of Justice for clarification, but a judgment is unlikely for over a year. In these circumstances, Article 3(3) should instead provide that Community nationals' family members are covered by the Directive, without prejudice to any other rights which they enjoy pursuant to other provisions of EC law.
6. Five years also seems like a lengthy period to wait for recognition of long-term residence status, given that Turkish nationals are entitled to look for any job within their field after three years of legal employment and then entitled to a form of long-term residence right after four years of legal employment, according to Decision 1/80 of the EC-Turkey Association Council and the jurisprudence of the Court of Justice.
7. As for the extent of equality conferred upon long-term residents, it is first of all striking that the Directive conceives of long-term residence as a status that has to be applied for, according to Article 8. In comparison, the case law of the Court of Justice makes clear that the rights of migrant Community nationals are not dependent on holding particular documents; such documents are merely declaratory of the rights.
8. As regards procedural rights, Articles 11 and 13 are welcome as far as they go, but are less detailed than the equivalent provisions of Directive 64/221 applying to Community nationals and their family members. It would be preferable to make a direct reference to the Directive here, while preserving certain aspects of the Directive that are more favourable (for example, Article 13(6)). The latter aspects should in any event be extended to migrant EC nationals and their family members.
9. Several aspects of the Directive do not provide equal rights as regard family members for long-term residents. Migrant Community nationals are entitled to family reunion rights and to equal treatment for their family as regards expulsion issues, access to employment and access to social advantages. But this Directive has no provision concerning family reunion in the first Member State, and indeed the separate proposal on family reunion of third-country nationals has been weakened beyond recognition during discussions in the Council. Moreover, even if family members are admitted, Article 12 on equal treatment and Article 13 on expulsion do not apply to them. Since family reunion and the status of family members are fundamental aspects of the day-to-day life of long-term residents, this is a severe flaw in the proposal.
10. Article 12 on equal treatment could be improved by an additional reference to Title I of Regulation 1612/68 (detailing what equal access to employment entails), 'social advantages', housing, recognition of all qualifications or experience gained in a Member State, and to Directive 77/486, which governs education rights for migrant EC nationals' children. The absence of these provisions limits the equality of EC nationals and long-term residents.
11. The 'more favourable provisions' clause in Article 14 is limited to residence permits, and does not concern other important aspects of status. As drafted, it could therefore suggest that Member States cannot treat long-term residents more favourably in order to secure full equality with EC nationals as regards any other aspect of this proposal.
Impact on the UK
12. The focus of this answer is on whether the Directive would benefit the UK and its residents. If the Directive provides such a benefit, then it should not be opposed just because it would require changes to national law, practice and procedure; those changes should simply be made.
13. Firstly, it would be an advantage to the UK and its residents to have an enhanced domestic status for long-term residents, comprising equal treatment in specified fields and protection against expulsion. This would provide a guarantee of equal treatment and security of status which would assist relations with migrant communities.
14. Also, the Directive would benefit employees and employers by guaranteeing a free choice of employer for long-term residents and a free choice of employee for businesses. This would assist the labour market by ensuring that an additional number of skilled or unskilled workers could move within Member States and within the Community to jobs which they are the best candidate for. In particular, it would assist employers with cross-border operations who cannot now easily transfer their third-country national employees to their establishment in other Member States (above and beyond short-term 'posting' of employees, which is not covered by this Directive), even where those employees are the best persons to undertake the work in question. It would also assist third-country nationals' career planning and access to purely domestic employment. At present, third-country nationals are hindered from considering a career path that might involve movement between Member States, and employers with substantial cross-border operations might be more reluctant to hire them or promote them as a result of the difficulties transferring them to another Member State.
15. Any perceived effect of the Directive on the UK's opt-out as regards border controls should be dealt with by additional specific wording clarifying that the UK still maintains powers to check persons at the borders to see whether they have rights pursuant to this Directive. Additionally, the reference to the family reunion Directive, which the UK has opted out of, could in the case of the UK be replaced by a reference to the parallel national law on this issue.
Right of residence in other Member States
16. It is useful in the interests of transparency and clarity to have in one Directive both the domestic and cross-border aspects of the status of long-term resident in one Member State. It is also appropriate, for this structure is a familiar approach in internal market legislation. For example, the directives on broadcasting and electronic commerce lay down minimum standards which each Member State should ensure as regards domestic regulation, in 'return' for which all of the other Member States must permit free movement subject to very limited derogations.
17. If this proposal were separated into two Directives, it seems possible that the UK would opt in to the domestic Directive but not the cross-border Directive. While this would be preferable to the UK opting out of all aspects of the proposed Directive, it would still be a grave mistake to opt out of the cross-border Directive, for the reasons outlined above.
18. The Directive should be more clearly aligned on the rights applicable to Community nationals moving between Member States. In particular, it should additionally refer explicitly to a right to take up economic or non-economic activities in other Member States on the same conditions as nationals of EC Member States, including equality of access to employment. At present, while such a right could possibly be inferred from the proposed Directive, it could also be argued that it is not included in the absence of express wording. The best way forward would be to incorporate references to legislation on the free movement rights of EC nationals in place of a separate regime for long-term residents; such a system would also be easier to administer.
19. This proposed Directive is, as the Commission points out, only one part of a programme to ensure application of the Tampere conclusions. Two other important parts are the proposals for equal treatment of third-country nationals as regards social security, for facilitation of posting of workers, and for granting established self-employed service providers the right to provide services in other Member States. The Committee should take the opportunity to ask the government to provide an update on the progress of these proposals and their prospects for adoption, and to press the government to relinquish any objections which it still may maintain. It would be hard to reconcile continued opposition to these proposals with the government's willingness to sign up to the Tampere conclusions on equal treatment for third-country nationals.
20. The proposed Directive should contain provisions not only on non-refoulement of refugees, but also on their expulsion, in accordance with Article 32 of the 1951 Geneva Convention on the status of refugees. This is necessary in particular in light of the recent comments of the former Home Secretary just before the election, suggesting a cap on the number of recognised refugees, which suggested (to put it kindly) unfamiliarity with the UK's obligations pursuant to Article 32.
21. As set out above, the present legal position of third-country nationals not only greatly hinders the full realisation of the internal market but contributes significantly to social exclusion. As a result, adoption of the Directive, with UK participation, would have considerable social and economic benefits.
22. Further benefits could be derived from improving the Directive so as to ensure fuller equality between long-term residents and EC nationals, in accordance with the Tampere conclusions, as regards the declaratory effect of long-term residents' documentation, movement to other Member States, reunion with and the status of family members, expulsion, and equal treatment in housing and social advantages. Additionally, further benefits would be derived from expanding the scope of the Directive to include some excluded persons and shortening the period to qualify for long-term residents' status.
23. One possible argument for opposing the Directive is that third-country nationals who have spent several years in the Community could alternatively obtain citizenship rights in their Member State of residence and exercise Community free movement rights in that way. However, while this prospect is of course welcome where it exists, it is not open to all long-term residents in the Community, either because their Member State of residence imposes stringent requirements on gaining citizenship, or because their original state of nationality will not permit them to gain dual nationality, or both. In the UK, the latter situation prevents many Indian and Turkish nationals in particular from gaining access to UK citizenship, and so the proposed Directive would in particular secure these groups' equality of status and ensure that they can play a larger part in the Community's internal market.
23. Finally, it is useful to reiterate that the Directive could not possibly result in any form of 'flood' of third-country nationals to the UK, or indeed to any Member State. Take-up of the right of free movement for Community nationals is well under 2% of the population, and even if all 12-15 million third-country nationals in the Community were accorded free movement rights (which of course the Directive does not propose to do), a similar ratio of take-up would mean in the order of 150-250,000 persons moving in all. This is less than the annual migration from third countries into the Community, and in any event it would not be an annual movement. In contrast, the benefit to third-country nationals would be considerable.
Comments prepared by Steve Peers, Reader in Law, University of Essex
20 June 2001
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