Professor Steve Peers, Royal Holloway University of London
Photo credit: JLogan, via Wikimedia commons
While the European Commission and Parliament aim to enhance the legal standing of long-term non-EU residents within the EU, the Council’s approach generally weakens their position, especially regarding acquiring long-term residency. This stance follows the Council’s recent agreement on a May 2022 Commission proposal for a revised directive on this matter (contrasting with the European Parliament’s position from spring 2023), meant to replace the existing 2003 Directive (previously amended in 2010 to encompass those with refugee or subsidiary protection).
Negotiations between the Council and Parliament will now commence to finalize the revised law, time permitting, ideally before the upcoming European Parliament elections (the Parliament’s final pre-election session is in April 2024).
My prior analyses of the 2022 proposal are in two parts: the first focusing on scope changes and requirements for obtaining initial long-term residency, and the second examining proposed changes for established long-term residents moving within the EU. This post builds upon and updates those, highlighting the Council’s alterations with “Council version” in bold and underline.
British readers might find my earlier analysis relevant, addressing the current law’s application to British citizens, with further insights provided here. (Note: Denmark and Ireland opted out; the UK, ironically, also opted out while a member, making it more pertinent post-Brexit for Brits as non-EU citizens).
This analysis is based on the text agreed upon by Member States on November 23, initially unpublished. Update: The text is now public.
Personal Scope: Who Qualifies?
Currently, EU long-term resident (LTR) status excludes: students; recipients of temporary or purely national protection; asylum seekers; those residing temporarily (e.g., au pairs, seasonal workers, posted workers, cross-border service providers, or with “formally limited” permits); and diplomats (as defined by treaties). Post-Brexit, British citizens in the EU implicitly fell under the EU LTR law after losing EU citizenship (as confirmed by the CJEU).
The Council version adopts the Commission’s proposal to eliminate the imprecise “formally limited” exclusion due to legal ambiguity, as noted in the Commission’s explanatory memorandum. This aligns with the rather vague CJEU case law (Singh), which distinguishes “formally limited” from “temporary grounds” but lacks clarity on their meaning.
Retaining existing exclusions, the Council version adds: intra-corporate transferees; those with suspended expulsions; and “job seekers” (clarifying the “temporary grounds” exception). Note: The CJEU ruled that this exception doesn’t exclude non-EU family members of EU citizens who haven’t left their home Member State (Zambrano cases).
These exclusions significantly impact millions fleeing the Ukrainian conflict who obtained temporary EU protection (see discussion). However, a key consideration is how time spent in an excluded status is factored in if someone later qualifies for a stay permitting LTR status.
Acquiring Long-Term Residency
The Five-Year Residence Requirement
Current law mandates a five-year continuous legal residence for non-EU citizens before applying for EU LTR status. Unlike free movement rights, EU LTR status isn’t automatic; an application is required (Iida). Currently, no exceptions exist for family members (Tahir). The 2022 proposal retains this, with a new clause requiring a Commission report within two years on potentially shortening the period. Exceptions are proposed for certain family members and those moving within the EU, discussed later. (The Council version supports the reports and intra-EU moves, but rejects changes for family members).
Calculating this five-year period has nuances. Excluded periods (temporary grounds, “formally limited,” or diplomatic status) don’t count. Half of a student’s stay is considered if they transition to an LTR-qualifying permit. Similarly, at least half the time spent as an asylum seeker (or the entire duration if exceeding 18 months) counts if they obtain refugee or subsidiary protection status. The current text is silent on accounting for time spent under temporary or national protection.
Revoked, terminated, or unrenewed refugee/subsidiary protection disqualifies someone from EU LTR. Absences within the five-year period are permitted if “shorter than six consecutive months and not exceeding 10 months total.” Member States may count longer absences for “temporary specific or exceptional reasons,” pausing the clock unless it’s “secondment for employment, including cross-border services,” which they may count fully.
The 2022 proposal introduces four changes. First, a new requirement mandates monitoring non-EU citizens’ stays before the five years, particularly those with investment-based permits. The Council version is less specific, omitting “investment.”
Second, a new right allows accumulating residence periods from multiple Member States, provided the last two years were spent in the application state. This builds upon existing provisions for specific groups like Blue Card holders (highly skilled workers). However, time spent under investment-based permits in another Member State wouldn’t count.
The Council version accepts this in principle but with limitations, requiring the last three years in the application state and limiting cumulation to two years from another state. Significantly, this only applies to select groups: Blue Card holders; certain highly skilled workers; intra-corporate transferees; EU-defined researchers; and their family members or those of existing LTR holders. The preamble vaguely suggests this applies to EU citizens’ non-EU family members, but clarity is needed in the main text. Another vague clause mentions British citizens, suggesting the inclusion of time spent under free movement law and the withdrawal agreement, but clarity on multiple Member State applicability is lacking. Including Blue Card holders is redundant, as the revised Blue Card Directive already offers them more generous terms. Furthermore, the Council version postpones implementing these cumulation rules until logistical aspects are addressed by the Commission and Council.
Third, the 2022 proposal revises residence calculations for those transitioning from an excluded status, explicitly stating that time spent under temporary/national protection, as students, or temporarily counts if they obtain a longer-term status. This benefits those previously students or on temporary stays and clarifies the situation for temporary/national protection beneficiaries, impacting millions. However, the rule for asylum seekers remains, counting half their waiting time (or the full period if exceeding 18 months).
The Council version is significantly more restrictive. Only intra-corporate transferees benefit from this change, with former students having only the option to count previous time. Other groups are implicitly excluded. This weakens the current law’s provisions for students and potentially for temporary protection beneficiaries.
However, the Council version improves conditions for refugees and beneficiaries of subsidiary protection, mirroring an agreement within asylum law negotiations. All time spent as asylum seekers counts, though unauthorized presence in another Member State resets the clock unless due to uncontrollable circumstances.
Finally, the 2022 proposal’s new clause (rejected by the Council version) grants immediate LTR status to children born or adopted to EU LTR holders, bypassing the five-year wait. While still requiring an application, it offered a significant advantage. The Council version only allows for “more favorable provisions,” without clarifying if this includes expedited LTR status.
Additional Requirements
EU LTR law mandates “stable and regular resources” and “sickness insurance.” “Resources” must:
…be sufficient to support themselves and their family without relying on social assistance. Member States assess these resources based on their nature and regularity, considering minimum wages and pensions before granting long-term resident status.
Current law defines “sickness insurance” as covering “all risks their nationals are covered for.”
The 2022 proposal keeps the sickness insurance requirement but modifies the resources requirement. Resources can be “provided by a third party,” and “Member States may set a reference amount but cannot impose a minimum income leading to automatic rejections without assessing each applicant’s circumstances.” (New rules concerning national LTR status comparisons, existing national LTR status, and exemptions for certain family members are discussed later.)
This first amendment aligns with CJEU case law, specifically the _X _judgment, which established the autonomy of EU law’s resources rule, allowing third-party provision (in this case, the applicant’s brother). However, “stable” and “regular” resources remain essential, with the relationship to the provider and any legal obligation for support being relevant.
However, the Council version undermines this, making considering third-party resources optional for Member States, falling short of the CJEU’s interpretation.
The optional “integration conditions” for obtaining EU LTR status remain in the 2022 proposal, with exceptions for comparisons with national LTR rules and family member exemptions (discussed later). Relevant CJEU case law (P and S), discussed here, deemed post-LTR integration requirements acceptable if proportionate. The Council’s position clarifies that these conditions may involve national language proficiency, reflecting existing practices (also mentioned in the 2022 proposal’s preamble).
Rejections based on public policy or security remain, requiring Member States to consider:
…the severity or type of offense, the danger posed, the residency duration, and existing ties to the country.
The 2022 proposal retains this, with relevant CJEU case law ruling in 2020 against automatic disqualifications based on past convictions, requiring a “specific assessment” considering the offense, risk level, residence duration, and national ties.
Lastly, the 2022 proposal eliminates a vague provision mentioning “documentation with regard to appropriate accommodation” as potential evidence for meeting LTR requirements. While its deletion renders it moot, the Council version retains it, clarifying that it informs the resource requirement assessment.
Application Procedure and Rights
The six-month decision timeframe for EU LTR applications remains, but “exceptional” extensions are replaced with requesting further information for clarification. New rules are introduced for existing national LTR holders (discussed later). The Council version keeps the extension option, limiting it to 60 days.
Regarding procedural guarantees, existing requirements (providing reasons for rejections/withdrawals, notification of decisions, and the right to appeal) remain.
A seemingly new rule on fees stipulates that while fees are permissible, they must be reasonable and proportionate, reflecting existing CJEU case law (Commission v Netherlands and CGIL and INCA).
More favorable treatment granted to national LTR applicants regarding fees and procedural guarantees (including decision timeframes) must be extended to EU LTR applicants. However, the Council version removes this requirement for timeframes.
Equal Treatment Rights
EU LTRs are entitled to equal treatment with nationals regarding: employment access; working conditions; education and vocational training (including grants); professional qualification recognition; social security and protection (as defined nationally); tax benefits; access to goods and services (including housing); freedom of association; and access to the granting Member State. However, residency requirements may apply for LTRs and their families. Access to employment may be restricted where limited to EU citizens, and language/educational requirements for education access are permissible. Access to social assistance and protection can be limited to “core benefits.” These rules don’t supersede EU asylum law for refugees and beneficiaries of subsidiary protection (and families), and Member States can offer more favorable conditions.
The new proposal adjusts equal treatment rules to: align social security with EU law; include private housing access; remove the family member residency requirement; eliminate the “core benefits” exception; provide benefits for LTRs moving outside the EU; and extend any favorable national rules for national LTRs to EU LTR holders. The Council version rejects the housing and family residency proposals but accepts the others.
This aligns with CJEU case law, which: limits the “core benefits” clause (Kamberaj, interpreting it strictly and excluding housing benefits unless explicitly stated by the Member State; see also KV); grants non-resident family members benefit entitlements (INPS, requiring an explicit statement from the Member State); and prohibits discrimination in accessing goods and services, such as family discount cards (ASGI, requiring explicit derogation statements from Member States).
Status Loss and Expulsion
LTR status is revoked if obtained fraudulently, following expulsion, or after 12 months outside EU territory. Exceptions allow longer absences generally or for “specific or exceptional reasons,” and status can be revoked for threats to public policy falling short of expulsion grounds. Withdrawing LTR status is also possible for those losing international protection under EU asylum law. LTR status from one Member State ends upon receiving it from another or after six years’ absence from the granting state, although exceptions for “specific reasons” exist. When status is lost due to absence, a facilitated reinstatement process is required, especially for those studying abroad, with national law determining the specifics. If status is lost but the individual remains, the Member State must allow their stay if they meet national requirements (see 2019 _YZ_ judgment).
The 2022 proposal replaces “expulsion” with “decision ending the legal stay” to align with the EU Returns Directive, extends absence allowance to 24 months, and limits longer absences to “specific or exceptional reasons.” The reinstatement process is standardized, mandating exemptions from integration requirements and allowing optional exemptions from the waiting period, resources, and insurance conditions (the Council version sets a three-year limit on the integration exemption).
A recent CJEU judgment, discussed here, interpreted the 12-month rule generously, allowing brief returns to reset the clock. This presumably applies to the proposed 24-month period. Conversely, the _YZ_ judgment was stricter on fraud, allowing status revocation even if the applicant was unaware of documentation fraud.
The Council version, again, is less generous, introducing an “main residence” requirement. LTR status is lost after 18 consecutive months or 18 cumulative months within any five-year period after receiving the permit, unless Member States choose to be more lenient. It also mandates LTR status revocation for threats to public policy, lowering the current threshold.
Expulsion is only permitted for “actual and sufficiently serious threats to public policy or public security,” excluding “economic considerations,” and requiring consideration of: residency duration; age; consequences for the individual and their family; and ties to both the Member State and country of origin. Legal redress and aid are provided under the same conditions as for nationals, with specific provisions for those with international protection.
The 2022 proposal aligns these provisions with the Returns Directive. Relevant CJEU case law confirms that convictions alone are insufficient for expulsion, mandating a holistic assessment of all factors (Lopez Pastuzano, discussed here; WT; see also Ziebell).
Family Members
A new clause in the 2022 proposal (largely rejected by the Council version) outlines special rules for family members. It grants immediate LTR status to children born or adopted to EU LTR holders, waiving waiting periods, resources, insurance, and integration requirements. It also delays integration requirements for EU LTRs’ family members until after family reunion is granted under the family reunion Directive. It proposes expedited processing for family member applications and extends procedural rights. It exempts them from labor market tests, ensuring immediate work access. Finally, any more favorable rules for national LTR family members must be extended to EU LTR families.
The Council version significantly weakens these provisions. Children born or adopted in the territory only receive residence permits mirroring those of family members admitted from other countries, denying them expedited LTR status. Integration requirements aren’t deferred, and equal treatment for family members is rejected. While the application decision timeframe is reduced from nine months to six, it falls short of the Commission’s proposed 90 days. Only immediate labor market access for family members remains unchanged.
National LTR Status Interaction
A key aspect of EU LTR law is its coexistence with national LTR schemes. Member States can issue national permits under “more favorable conditions,” but these don’t grant movement rights to other Member States (Tahir).
The proposal retains national permits but removes the “more favorable conditions” wording, introducing non-discrimination requirements between national and EU LTR schemes in various areas, mirroring the approach in the revised Blue Card directive (see discussion).
More favorable rules for national LTR applicants regarding resources, integration, procedures (including decision timeframes), fees, equal treatment, and family members must be extended to EU LTR applicants. The Council version limits this to procedural equality (excluding timeframes), fees, and equal treatment.
The interplay between national and EU LTR status (whether both can be held or a choice is required) remains unclear in both the current and proposed laws. While Member States interpret this differently, no case law exists.
The 2022 proposal clarifies that existing national LTR status exempts applicants from resource, insurance, and integration requirements for EU LTR status if “already verified.” However, it doesn’t clarify whether this is an addition or replacement for national status or if Member States can choose. It does imply that having national LTR status doesn’t preclude future EU LTR applications. The Council version further weakens this, making exemptions for resources and insurance optional and removing the integration exemption.
Movement Within the EU
EU LTRs can move within the EU for “economic activity (employed or self-employed),” “studies or vocational training,” or “other purposes.” The 2022 proposal retains this.
However, restrictions exist. Member States can impose labor market or preference tests for employment-seeking EU LTRs and maintain quotas for incoming non-EU citizens. The 2022 proposal eliminates these, but the Council version retains the labor market/preference test option.
Certain workers are excluded: posted workers, self-employed service providers, seasonal workers (subject to national law), and cross-border workers (also subject to national provisions).
Movement Requirements
LTRs must apply for a residence permit within three months of arriving in another Member State. While the current law allows Member States to process applications from the initial Member State, the proposal makes this mandatory. The Council version keeps this optional.
The new Member State may require “stable and regular resources” and sickness insurance, unlike the mandatory requirement for initial LTR status. The wording mirrors that for the initial application.
The 2022 proposal, aligning with changes for initial LTR status, allows for third-party provision of resources. However, it omits the “reference amount” and “no minimum income” provisions. The Council version adds these while removing the third-party resource provision.
The new Member State may require integration measures before granting residency, differing from the initial LTR “integration conditions.” Compliance with the latter exempts LTRs from the former. However, the Council version removes this limitation, weakening existing protections.
Documentation requirements for employment (proof of hire), self-employment (funding), and studies remain. The unclear “accommodation evidence” provision, mirroring the initial LTR application, is removed in the 2022 proposal but retained in the Council version.
The 2022 proposal introduces two key points (rejected by the Council version): EU LTRs have equal rights with EU citizens regarding professional qualification recognition; and work/study authorization must be granted within 30 days of submitting a complete application. The Council version makes granting work authorization optional.
Family Members
Immediate family members residing with the EU LTR in the first Member State must be admitted to the second. Extended family admission is at the Member State’s discretion. If family members weren’t residing together, the EU family reunion Directive applies. The Council version removes the obligation to consider third-party resources in their applications.
A new provision in the 2022 proposal (rejected by the Council version) allows family members applying for independent residence permits (under the family reunion Directive) to cumulate residence periods from different Member States if the last two years were in the new state.
Exceptions: Public Policy, Security, and Health
Residency refusal based on public policy or security is possible, requiring an assessment of the offense’s severity and type. However, unlike initial LTR applications, there’s no obligation to consider residency duration or national ties, and “economic considerations” can be a factor.
For public health, both the 2022 proposal and the Council version defer to the Schengen Borders Code’s definition of a “threat to public health”:
…any disease with epidemic potential (as defined by the WHO) and other infectious or contagious parasitic diseases if subject to national protection provisions.
Procedural Rights
Decisions on residency applications must be made within four months, extendable to seven in exceptional cases or with incomplete documentation. The 2022 proposal shortens these to 90 and 120 days, respectively, while the Council version sets them at four and six months.
Other procedural rights mirror those for initial applications: providing reasons, notification, redress information, and deadlines. However, this only applies to rejections, not withdrawals. Legal redress is available for rejections, withdrawals, or non-renewals. No mention of equal treatment compared to national permit applicants or fees is made, though CJEU case law (Commission v Netherlands) mandates proportionate fees.
Equal Treatment
After receiving residency, the new Member State must ensure equal treatment for the LTR, referencing the rules for the first Member State. Thus, related case law and amendments (if approved) apply. The 2022 proposal extends this to family members, replacing a reference to the weaker family reunion Directive provisions. It also removes the option to restrict employer changes for the first year (proposing an optional notification requirement instead). Restrictions on employment access for students or those moving for other reasons remain. The Council version rejects both amendments.
Status Withdrawal or Loss
Before gaining LTR status in the second Member State, expulsion to the first Member State is possible for breaching residency conditions. The initial Member State must readmit them. The 2022 proposal replaces national law references with the EU Returns Directive and removes the option for complete expulsion from the EU for “serious grounds of public policy or public security.” The Council version agrees.
Obtaining LTR Status in the Second Member State
LTRs can obtain status in the new Member State under the same conditions and procedures as the initial application, meaning relevant case law and amendments (if approved) apply.
The 2022 proposal expedites this, allowing LTR status after three years instead of five. However, before the five-year mark, only “workers, self-employed persons, and their family members” are entitled to “social assistance, or maintenance aid for studies (including grants and loans).” Member States can be more generous if equally so to their own citizens. However, they can also terminate the stay of workers/self-employed LTRs between years three and five if they no longer meet the resources or insurance requirements. The Council version surprisingly agrees to this shorter waiting period.
Finally, while refugees and beneficiaries of subsidiary protection can obtain EU LTR status and move freely, neither the existing law nor the proposal facilitates the transfer of their international protection status.
Concluding Remarks
The Commission’s proposal aimed to broaden EU LTR access, make it harder to lose, and enhance rights. The Parliament’s position (not discussed here) goes even further. However, the Council’s position largely rejects these improvements, often regressing from the current framework.
Specifically, the Council removes rights regarding: including more groups within existing exceptions; granting LTR status to former students and potentially former temporary protection beneficiaries; considering third-party resource contributions (also impacting movement within the EU); adding the “main residence” requirement; and allowing Member States to reimpose integration requirements for those moving within the EU.
The Council rejects improvements related to: easier residence cumulation for most; granting LTR status to former students and those previously under “temporary grounds”; extending application decision timeframes (despite their limited nature); aligning timeframes with national LTR rules; strengthening equal treatment provisions; granting expedited LTR status to children and delaying integration requirements for family members; removing the accommodation requirement; aligning resource, insurance, and integration requirements with national LTR rules; simplifying applications for existing national LTR holders; removing labor market tests for intra-EU moves; streamlining applications for intra-EU moves; granting early work/study authorization in a new Member State; allowing family members to cumulate residence for independent permits; shortening decision timeframes for residency applications in a second Member State; and enhancing equal treatment in the new Member State.
Admittedly, the Council accepts improvements concerning: removing the “formally limited” exclusion; allowing limited residence cumulation for some; granting LTR status to refugees and subsidiary protection beneficiaries; some aspects of equal treatment; easing LTR status reacquisition (with limitations); labor market access for family members; aligning procedures, fees, and some aspects of equal treatment with national LTR rules; removing quotas for intra-EU moves; prohibiting expulsion from the EU by the second Member State; and shortening the waiting period for LTR status in the second Member State.
The most extensive list is of improvements rejected by the Council. While disheartening, this at least maintains the current status quo for (potential) long-term residents.
While the list of new rights accepted by the Council might seem comparable in size to the list of existing rights it proposes to remove, the qualitative difference is significant. The Council’s proposed removals primarily target the pathway to becoming a long-term resident, potentially hindering individuals from obtaining LTR altogether. Furthermore, these changes make it easier to lose LTR and harder to obtain it in a new Member State.
The European Parliament could potentially advocate for improvements during trilogue negotiations. However, the Council’s resistance to enhancing existing standards and the Parliament’s desire to finalize legislation before the upcoming elections (and a potential shift to the right) cast doubt on this possibility. The Parliament might reluctantly compromise, potentially even accepting a weakening of current standards to avoid a less favorable outcome with the next Parliament. As with EU asylum law, the fear of a less progressive future weighs heavily on the current Parliament’s decisions.
See also