The EU Commission's new proposal for long-term resident non-EU citizens (part 1)

Professor Steve Peers, University of Essex

Photo credit: Marcomob, via Wikimedia commons

The EU has a longstanding interest in regulating the legal status of non-EU citizens residing long-term within its Member States as part of its broader legal migration policy. The current law, a 2003 Directive amended in 2010, focuses on extending rights to those with refugee or subsidiary protection status. A recent Commission proposal aims to further expand the rights of this large group of non-EU citizens. This analysis, the first part of a two-part series, examines this proposal, which requires agreement from both the EU Member States and the European Parliament to become law. (Denmark and Ireland have opted out of this legislation, as did the UK during its membership). The second part delves into proposed rule changes concerning long-term resident non-EU citizens moving between Member States.

Who is Covered?

Currently, the EU long-term resident (LTR) status excludes individuals in the following categories: students; those granted or seeking temporary protection or similar national-level protection; asylum-seekers; those residing on ‘temporary grounds’ such as au pairs or seasonal workers, or those on work assignments involving cross-border services; and diplomats as defined by international treaties.

British citizens residing in the EU after Brexit implicitly fell under the scope of EU LTR law when their EU citizenship ended. (Previous discussions addressed LTR law application for British citizens here). However, ongoing Court of Justice of the European Union (CJEU) cases argue British citizens never lost EU citizenship (see the Advocate-General’s opinion analysis in the leading case here). A definitive ruling from the judges is expected shortly.

The 2022 proposal would eliminate the ambiguous “formally limited” exclusion, which has created legal uncertainty for Member States during implementation. The relevant CJEU case law (Singh) distinguishes this exception from the “temporary grounds” exception without clearly defining its meaning.

The new proposal retains other exclusions, including the remaining “temporary grounds” exception, which is being challenged in the pending EK CJEU case. The Advocate-General’s opinion suggests that non-EU family members of EU citizens residing in their home Member State (Zambrano cases) are excluded from EU LTR status due to the “temporary grounds” exception, even with broader residency rights under EU law. It remains to be seen whether the CJEU agrees. If so, they would differ from non-EU family members of EU citizens who relocated within the EU and are covered by free movement law: the proposal confirms their inclusion under LTR law in its preamble. A distinction is necessary between Zambrano cases based on EU law and cases like Iida, where residency relies on national law (a non-EU spouse of a German citizen residing in Germany), where the Court confirmed EU LTR law’s potential applicability.

These exclusions are significant, particularly for millions of Ukrainian refugees granted temporary protection within the EU (see discussion on EU temporary protection here). However, there are further implications.

Acquiring Long-Term Residency

Five-Year Waiting Period

The current law mandates that Member States grant EU LTR status to non-EU citizens who have resided legally and continuously within their territory for five years prior to applying. Unlike free movement law, EU LTR status requires an application and is not automatic (Iida). There are currently no exceptions to the waiting period for family members (see the Tahir case). The new proposal maintains this rule but includes a review clause requiring the Commission to assess the feasibility of shortening it and introduces an exception for certain family members.

Further rules govern the five-year calculation. The current law disregards time spent under the “temporary grounds/formally limited” exception or as a diplomat. Half of a student’s residency counts if they obtain a qualifying residence permit afterward. Similarly, for asylum-seekers receiving refugee or subsidiary protection status, at least half of their time as asylum seekers is considered; if this process exceeds 18 months, the entire duration counts. Notably, the law is silent on calculating time for individuals with temporary or national protection.

Those who have had their refugee or subsidiary protection status revoked, terminated, or not renewed cannot qualify for EU LTR status. Absences from the territory during the five-year period exceeding six consecutive months or totaling more than ten months within that timeframe disqualify the application. Member States may consider longer absences for “specific or exceptional temporary reasons,” but the clock stops during these periods, except for work-related secondments or cross-border service provisions, which may be counted entirely.

The proposal introduces four key changes to these rules. First, it mandates monitoring the stay of non-EU citizens, especially those with investment-based residency, before the five-year period. Second, it introduces the right to accumulate residency across Member States, provided the last two years are spent in the application state. This builds on existing provisions for select non-EU citizens, such as Blue Card holders.

However, a new exclusion targets “golden visas”: residency gained through investment in another Member State is not counted toward the five-year requirement. The preamble defines investment as “capital transfers, purchase or renting of property, investment in government bonds, corporate entities, donation or endowment benefiting the public good, and state budget contributions.”

Third, calculating the five-year period changes for those previously residing under an excluded status. Residency under a long-stay visa, temporary or national protection, student status, or temporary residency is now explicitly counted if a more permanent status is later obtained. This benefits those with prior student or temporary status and arguably confirms the existing situation for those under temporary or national protection, potentially impacting millions of Ukrainians. However, the rule counting at least half (or the entire period if exceeding 18 months) of an asylum-seeker’s residency remains.

Finally, a new provision grants immediate LTR status to children born or adopted within the Member State to EU LTR holders, bypassing the waiting period. However, an application is still required.

Additional Requirements

The EU LTR law requires “stable and regular resources” and “sickness insurance” for non-EU citizens seeking LTR status. The “resources” requirement mandates sufficient means to support themselves and their families without relying on social assistance. Member States assess these resources based on their nature and regularity, considering minimum wages and pensions. “Sickness insurance” must cover all risks typically covered for their citizens.

The proposal maintains the sickness insurance requirement but allows resources to be “made available by a third party.” It also prohibits Member States from setting a minimum income threshold automatically disqualifying applicants without case-by-case assessment. New rules also address comparisons with national LTR applications, situations where applicants already possess national LTR status, and exemptions for specific family members.

The first amendment aligns with CJEU case law. In the _X_ judgment, the Court established the “resources” rule as independent of national law and permitted third-party provision, provided it is “stable” and “regular.” The relationship with the provider and the legal basis for support are relevant factors.

Member States retain the option to impose “integration conditions” for obtaining EU LTR status. The proposal maintains this, except for comparisons with national LTR rules and family member exemptions. CJEU case law in P and S, discussed here, permits proportionate integration requirements imposed after obtaining LTR status.

Applications can be denied based on public policy and security concerns, considering the offense’s severity, the threat posed, the duration of residency, and existing ties to the residence country. The proposal retains this provision. A 2020 CJEU ruling states that past criminal convictions cannot automatically disqualify an applicant; a “specific assessment” considering the offense, risk level, residency length, and ties to the state is mandatory.

Finally, the proposal removes a provision allowing documentation related to “appropriate accommodation” as part of the application. Whether this constituted an additional requirement is unclear, but its removal renders the point moot.

Application Procedure and Rights

The proposal maintains the six-month decision deadline for EU LTR applications but replaces the “exceptional cases” extension with a provision allowing authorities to request further information. New rules apply to those already holding national LTR status.

Procedural safeguards include providing reasons for refusal or withdrawal, notification of decisions (specifying appeal processes and deadlines), and the right to legally challenge rejections, withdrawals, or non-renewals.

A new rule addresses fees, stipulating that while Member States can charge for processing EU LTR applications, these fees must be “proportionate and not excessive,” aligning with CJEU case law (see Commission v Netherlands and CGIL and INCA).

Regarding fees and procedural guarantees (including decision deadlines), any preferential treatment given to national LTR applicants or holders must be extended to their EU LTR counterparts.

Equal Treatment Rights

EU LTRs are entitled to equal treatment with nationals in access to employment and self-employment (excluding “public authority” roles), working conditions, education and vocational training, professional qualification recognition, social security, social assistance, social protection (as defined by national law), tax benefits, goods and services (including housing), freedom of association, and access to the granting Member State’s territory. However, Member States can impose residency requirements on LTR holders or their families for certain aspects. They can also restrict employment access if limited to EU citizens and impose language or educational requirements for education access. Furthermore, they can restrict social assistance and protection access to “core benefits.” These rules operate “without prejudice” to EU asylum law regarding refugees and subsidiary protection beneficiaries and allow Member States to set higher standards.

The new proposal introduces several changes to the equal treatment rules. It aligns the definition of social security with EU law, includes access to private housing, removes the residency condition for family members, eliminates the “core benefits” exception, provides benefits for LTR holders moving to non-EU countries, and requires extending any favorable national rules for national LTRs to EU LTR holders.

These changes reflect existing CJEU case law, which: limited the use of the “core benefits” clause (Kamberaj) in line with the EU Charter of Fundamental Rights, prohibiting its use to exclude housing benefits and requiring Member States to declare their intent to use it (see also KV); granted benefits to non-resident family members (INPS), again requiring a declaration of intent from Member States; and ruled against discrimination in accessing goods and services, such as family discount cards (ASGI), requiring a declaration of intent to derogate.

Status Loss and Expulsion

LTR status can be revoked for “fraudulent acquisition,” expulsion, or 12 months’ absence from EU territory. Member States can allow longer absences or for “specific or exceptional reasons.” LTR status can be revoked if the individual poses a “threat to public policy” below expulsion grounds. Those losing international protection under EU asylum law can also have their LTR status withdrawn. LTR status in one Member State ends upon receiving it in another or after six years’ absence. Member States can maintain this status after six years for “specific reasons.” Upon losing LTR status due to absence, Member States must provide a simplified reinstatement process, particularly for those who left for study purposes. The process and details are left to national law. If LTR status is lost without removal, the individual can stay if they meet national law requirements (see the 2019 _YZ_ judgment).

The 2022 proposal replaces “expulsion or removal” with a “decision ending the legal stay” to align with the EU Returns Directive. It extends the permissible absence to 24 months, limiting extensions beyond this period to “specific or exceptional reasons.” The facilitated reinstatement process is no longer solely defined by national law and includes mandatory exemptions from integration requirements and optional exemptions from the waiting period, resources, and sickness insurance requirements.

A recent CJEU judgment, discussed here, broadly interpreted the 12-month absence rule, stating that a brief return within that timeframe resets the clock. This likely applies to the proposed 24-month period. Conversely, the _YZ_ judgment held that LTR status can be revoked for fraudulent documentation even without the applicant’s knowledge.

The proposal retains the existing provision allowing expulsion solely for an “actual and sufficiently serious threat to public policy or public security,” excluding economic considerations. Member States must consider residency duration, age, consequences for the individual and their family, and ties to the Member State and origin country. Judicial redress, legal aid comparable to nationals, and specific rules for LTR holders with international protection are mandated. The 2022 proposal only adjusts cross-references to the Returns Directive. CJEU case law emphasizes that criminal convictions alone are insufficient for expulsion, requiring consideration of all factors outlined in the law (Lopez Pastuzano, discussed here; WT; see also Ziebell).

Provisions for Family Members

A new clause introduces special provisions for family members. Children born or adopted to EU LTR holders within the territory are eligible for immediate LTR status, bypassing the waiting period, resource, sickness insurance, and integration requirements. Family members of EU LTR holders are only subject to the integration requirements under the family reunion Directive after family reunion is granted. Their applications are expedited, and they receive certain procedural rights under the proposed law. They are exempt from labor market tests for employment access. Finally, any more favorable national rules for family members of national LTR holders must extend to their EU LTR counterparts.

EU LTR Status and National LTR Status

Both the current and proposed EU LTR laws operate alongside national LTR frameworks. While Member States can currently issue national LTR permits under “more favorable” conditions than the EU rules, these permits do not grant the right to move between Member States (Tahir case).

The proposal retains the ability to issue national LTR permits but removes the “more favorable conditions” provision. Instead, it mandates non-discrimination between national and EU LTR statuses in several areas. (This approach, pioneered in the recent Blue Card directive revision for highly skilled workers, is discussed here).

Member States must extend any more favorable rules for national LTR applicants to EU LTR applicants regarding resources, integration, procedural safeguards, fees, equal treatment, and family members.

However, the proposal does not address situations where national LTR laws offer more favorable treatment to specific categories of applicants (e.g., exemptions from integration requirements for degree holders). A logical interpretation suggests these benefits would extend to the same categories applying for EU LTR status.

The non-discrimination rule does not apply to national rules granting LTR status before five years, either generally or for specific groups like family members (Tahir case). It also excludes rules concerning public policy, public security, LTR status loss or withdrawal, or expulsion.

The relationship between holding both national and EU LTR statuses remains unaddressed. The current law and the 2022 proposal are silent on this, resulting in varying interpretations and practices across Member States.

The proposal addresses the link by exempting EU LTR applicants already holding national LTR status from the resource, sickness insurance, and integration requirements if these were previously met during the national application. However, it does not clarify whether the EU application supplements or replaces national status or if Member States have discretion in this matter. It confirms that holding national LTR status does not preclude applying for EU LTR status in the future.

Concluding Thoughts

The Commission’s proposal aims to make EU LTR status more accessible, harder to lose, and more advantageous for holders. This is a positive step toward integrating legal non-EU residents, but some details warrant further consideration.

Eliminating the ambiguous “limited residence permit” exclusion is a sensible move, as it contradicts the purpose of long-term residency. Furthermore, this presents an opportunity to clarify that Zambrano cases (non-EU family members of EU citizens residing in their home Member State) fall under the law’s scope, contrary to the Advocate-General’s opinion. It is illogical to disadvantage them compared to non-EU family members of EU citizens who have relocated using free movement rights or those residing in their home Member State under national, not EU, law (Iida case). This exclusion contradicts the proposal’s efforts to enhance family reunion rights.

While improvements to the five-year calculation rule are welcome (especially the cross-border accumulation for non-EU family members of EU citizens exercising free movement rights, addressing a “deterrent to free movement” highlighted by the CJEU), the distinct rule for asylum-seekers seems arbitrary, especially given the potential overlap with temporary protection for millions fleeing Ukraine. Simplifying other conditions, such as removing the vaguely worded accommodation requirement, is also positive.

It is noteworthy that many legal challenges to the current legislation involve individuals with limited financial resources, particularly regarding resource requirements, equal treatment in benefits, application fees, and integration tests. It is therefore surprising to see a proposal concerned with abuse by wealthy individuals. This could be a way for the Commission, which opposes “golden visas,” to address the issue indirectly. A more transparent approach would involve proposing their abolition or harmonized rules to prevent misuse.

While the proposal elevates EU LTR status above national LTR status, it fails to address whether both can be held concurrently. Allowing this would undoubtedly promote the integration of long-term residents.

The proposed improvements to family reunion, particularly for children who risk legal vulnerability without jus soli citizenship, are welcome. However, the proposal could have gone further, such as waiving the waiting period for family member admission under the family reunion Directive.

Finally, the inclusion of British citizens under EU long-term residence law (and this proposed amendment) due to Brexit raises points for discussion. It is understandable that those affected by the loss of EU citizenship have resorted to legal challenges. However, should these fail, some entertain the implausible notion of the EU granting a form of EU citizenship to “Remain” voters. This is highly unlikely, lacking both legal grounds and political will. With the UK’s withdrawal from the EU, its rejection of free movement, and deteriorating UK-EU relations, this scenario is improbable. A more realistic avenue for improving the situation of British citizens in the EU is through this proposal (ideally enhanced), which benefits all non-EU long-term residents.