Professor Steve Peers, University of Essex
Individuals can lose their immigration status if they are absent from the country that granted it for a specific duration. However, a recent Court of Justice of the European Union (CJEU) ruling explored the impact of short interruptions during this absence. The case focused on long-term EU resident status for non-EU citizens, which could have implications for those under EU free movement law and the Brexit withdrawal agreement.
Background
The CJEU’s judgment provided an interpretation of the EU’s long-term residence (LTR) directive, established in 2003 and later amended in 2011. This directive, which Ireland, Denmark, and the UK previously opted out of, outlines the rights associated with long-term residency for non-EU citizens, including a level of equal treatment and protection against expulsion. Notably, the directive also applies to British citizens post-Brexit.
The directive allows non-EU citizens to seek long-term residence status after five years of legal residency, provided they meet specific requirements. While this status offers some advantages, it can be revoked under conditions outlined in Article 9 of the directive, including fraud, expulsion, or a continuous 12-month absence from the EU. Member States can choose to retain status despite longer absences or under special circumstances, and they have the right to revoke it due to serious threats to public policy.
Article 9 also addresses the loss of LTR status after a six-year absence from the granting Member State, although exceptions may exist for relocation to another Member State. In cases of status loss due to absence, Member States are required to provide a straightforward process for its reacquisition, particularly for those who pursued studies in another Member State.
Importantly, the expiration of an LTR residence permit does not automatically lead to status loss. If status loss doesn’t result in removal, Member States can allow the individual to stay if they meet national requirements and pose no threat to public safety.
The CJEU judgment
The CJEU’s judgment addressed a case involving a Kazakh citizen holding LTR status in Austria. His 2018 permit renewal was denied due to limited time spent within the EU over the preceding five years. He argued that brief annual returns to EU territory should be enough to maintain his LTR status. The Austrian court sought clarification from the CJEU on this matter.
The CJEU determined that ‘absence’ should be interpreted uniformly across the EU. Examining various language versions of the directive, the court found that ‘absence’ generally refers to physical non-presence, which can be interrupted by any physical presence within the EU territory.
Furthermore, the CJEU highlighted that permanent LTR status is the norm, with Article 9 acting as an exception. This implies a strict interpretation of Article 9, suggesting that brief physical presences are sufficient to disrupt absence.
The court also noted a distinction between the requirements for acquiring and losing LTR status. Acquiring status necessitates a continuous and legal five-year residence, while losing it does not specify any duration or stability requirements for physical presence within the EU.
Regarding the directive’s aim to integrate long-term residents, the CJEU emphasized that individuals demonstrating sufficient integration should have the freedom to travel and reside outside the EU for extended durations without jeopardizing their status, as long as they don’t exceed the 12-month absence limit.
The court also stressed the importance of legal certainty, arguing that maintaining LTR status should rely on clear and predictable criteria. The absence rule intends to prevent individuals from retaining a status that no longer serves its purpose of integration.
The CJEU clarified that the ‘absence’ provision in the LTR directive is comparable to that in EU free movement law, where status loss occurs after a two-year absence. Consequently, only a 12-month continuous absence can lead to a weakened link with the host state, and even a brief presence in the EU is enough to interrupt this absence.
Comments
The CJEU’s reasoning in this judgment is largely well-founded, particularly regarding the interpretation of ‘absence’ based on wording and context. However, its analysis of the directive’s objective is less convincing. While the court links integration with the freedom enjoyed by EU citizens, it overlooks instances where Member States revoke nationality and, therefore, EU citizenship, due to prolonged absence.
The comparison to EU free movement law is not entirely persuasive, as the CJEU hasn’t yet ruled on interrupting absence in that context. Additionally, the ‘misuse of rights’ exception lacks clarity and definition. The judgment doesn’t definitively clarify if brief transits through EU airports count as interruptions of absence. Further clarification on this and the ‘misuse of rights’ exception is needed.
Logically, the judgment should apply to losing LTR status due to a six-year absence from the granting Member State. The judgment suggests that the grounds for status loss are comprehensive and should be interpreted narrowly. However, it’s worth noting a previous ruling where the court broadly interpreted ‘fraud’ as grounds for status loss.
Beyond the LTR Directive, the judgment implies that the rules on absence in free movement law should be interpreted similarly. Given its close relationship with free movement law, the absence clause in the Brexit withdrawal agreement might also warrant a similar interpretation.
Barnard & Peers: chapter 26
Photo credit: Uri Baruchin, via wikicommons