Joined Cases C‑829/21 and C‑129/22

TE
and
RU, represented for legal purposes by TE

v

Stadt Frankfurt am Main

and

EF

v

Stadt Offenbach am Main

(Requests for a preliminary ruling from the Hessischer Verwaltungsgerichtshof and from the Verwaltungsgericht Darmstadt)

Judgment of the Court (Second Chamber), 29 June 2023

(Reference for a preliminary ruling – Immigration policy – Status of third-country nationals who are long-term residents – Directive 2003/109/EC – Second subparagraph of Article 9(4), Article 14(1), second subparagraph of Article 15(4), Article 19(2) and Article 22 – Right of third-country nationals to long-term resident status in a Member State – Grant by the first Member State of a ‘long-term resident’s EU residence permit’ of unlimited duration – Third-country national absent from the territory of the first Member State for a period of more than six years – Consequent loss of entitlement to long-term resident status – Application for renewal of a residence permit issued by the second Member State pursuant to the provisions of Chapter III of Directive 2003/109/EC – Application rejected by the second Member State because of the loss of that entitlement – Conditions)

1. Border controls, asylum and immigration – Immigration policy – Status of third-country nationals who are long-term residents – Directive 2003/109 – Withdrawal or loss of status – Grounds – Absence for a period of more than six years from the territory of the Member State that granted long-term resident status – Consequent refusal to renew a residence permit issued pursuant to the provisions of Chapter III of that directive – Whether permissible – Conditions

   (Art. 4(3) TEU; Council Directive 2003/109, recitals 10 and 11 and Arts 2(c) and (d), 8(2), 9(4), second and third subparas, 14(1), 15(4), 16, 19(2) and 22(1)(b))

   (see paragraphs 41-45, 50-56, 61-73, 75, operative part 1)

2. Border controls, asylum and immigration – Immigration policy – Status of third-country nationals who are long-term residents – Directive 2003/109 – Withdrawal or loss of status – Grounds – Implementation by the Member States – Separate provisions implementing the second subparagraph of Article 9(4) and Article 22(1)(b) of Directive 2003/109 – Provision for revocation of a residence permit pursuant to the provisions of Chapter III of that directive in the event of loss of entitlement to long-term resident status in the Member State that issued it, without specific reference being made to one of the grounds for loss of that entitlement – Whether permissible

   (Council Directive 2003/109, Arts 9(4), second subpara., and 22(1)(b))

   (see paragraphs 77-84, operative part 2)

3. Border controls, asylum and immigration – Immigration policy – Status of third-country nationals who are long-term residents – Directive 2003/109 – Conditions for residence in a second Member State – Provision of documentary evidence of appropriate accommodation – Condition not implemented – Rejection of an application for grant or renewal of a residence permit pursuant to Chapter III of Directive 2003/109 for failure to meet that condition – Not permissible

   (Art. 267 TFEU; Council Directive 2003/109, Art. 15(4), second subpara.)

   (see paragraphs 86, 88, operative part 3)

Résumé

TE, a Ghanaian national, and EF, a Pakistani national, obtained long-term resident’s EU residence permits in Italy bearing, inter alia, the word ‘illimitata’ (unlimited (duration)). In 2013 and 2014 respectively, they entered Germany from Italy. On the basis of the long-term resident status conferred on them in Italy, the German authorities granted them, in accordance with German legislation on residence of foreign nationals, ( 1 ) residence permits that were valid for one year.

Subsequently, the German authorities rejected applications by TE and EF for renewal of their residence permits. TE and EF challenged the non-renewal before the courts. In particular, in the case of EF, the refusal to renew was based on the ground, provided for in the second subparagraph of Article 9(4) of Directive 2003/109, ( 2 ) that he was no longer entitled to long-term resident status in Italy because he had not resided in that Member State for more than six years. The same ground was raised in TE’s case in proceedings in which she challenged the rejection of her application for renewal.

The German courts seised of the actions brought by TE and EF, respectively, namely the Hessischer Verwaltungsgerichtshof (Higher Regional Court, Hesse, Germany) and the Verwaltungsgericht Darmstadt (Administrative Court, Darmstadt, Germany), decided to refer a number of questions of interpretation of Directive 2003/109 to the Court of Justice.

In its judgment, the Court clarifies, inter alia, the conditions governing a decision, such as the decisions at issue in the main proceedings, refusing to renew a residence permit of a third-country national on the ground that that person was absent for a period of more than six years from the territory of the Member State that granted long-term resident status and was, therefore, no longer entitled to that status.

Findings of the Court

First of all, the Court notes that entitlement to long-term resident status in the ‘first Member State’ ( 3 ) is a mandatory precondition that must be met by a third-country national wishing to obtain or renew a residence permit in the ‘second Member State’ ( 4 ) under the provisions of Chapter III of Directive 2003/109. Consequently if the second Member State finds that the third-country national concerned is no longer entitled to maintain long-term resident status in the first Member State on the ground, in particular, as provided for in the second subparagraph of Article 9(4) of Directive 2003/109, that he or she has been absent from the territory of the first Member State for a period of more than six years, that finding precludes the renewal of such a residence permit.

Next, as regards the relevant date for assessment of the condition relating to the right to long-term resident status, the Court states that this is the date on which the third-country national concerned lodged his or her application for renewal of the residence permit pursuant to the provisions of Chapter III of Directive 2003/109. However, there is nothing to prevent the second Member State from adopting a new decision refusing that renewal or withdrawing the residence permit pursuant to Article 22 of that directive if it considers that the loss of entitlement to long-term resident status in the first Member State occurred during the administrative procedure or judicial proceedings concerning the renewal application.

Lastly, the Court states that the burden of proof of entitlement to long-term resident status in the first Member State lies, as a matter of principle, with the third-country national concerned. It follows however from Directive 2003/109 ( 5 ) that a long-term resident’s EU residence permit gives rise to a presumption that that third-country national remains entitled to that status. Admittedly, that presumption is not irrebuttable, since the second Member State may find it necessary to examine one of the grounds for loss of long-term resident status referred to in Article 9 of Directive 2003/109. Nevertheless, any such challenge is subject to a finding that there is sufficiently specific and consistent evidence that one of those grounds may apply.

In that context, the Court specifies the checks which the second Member State must carry out, where such evidence exists, in the light of the ground provided for in the second subparagraph of Article 9(4) of Directive 2003/109, seeking, if necessary, the assistance of the first Member State, in accordance with the principle of sincere cooperation. ( 6 ) On the one hand, the third-country national must first be invited to produce proof of his or her presence (if any) in the territory of the first Member State during the six-year period referred to in that provision, a presence in that territory of a total duration of only a few days being sufficient to prevent the loss of entitlement to long-term resident status. On the other hand, in the event of any absence from that territory for a period of more than six years, the second Member State must check, in accordance with the third subparagraph of Article 9(4) of Directive 2003/109, whether the first Member State has made use of the option to provide that, ‘for specific reasons’, the long-term resident is to maintain his or her status in that Member State in the event of such an absence and, if that is the case, whether such a specific reason is established.

( 1 ) Gesetz über den Aufenthalt, die Erwerbstätigkeit und die Integration von Ausländern im Bundesgebiet (Law on the residence, employment and integration of foreign nationals in the Federal Territory) of 30 July 2004 (BGBl. 2004 I, p. 1950), in the version applicable to the disputes in the main proceedings.

( 2 ) Council Directive 2003/109/EC of 25 November 2003 concerning the status of third-country nationals who are long-term residents (OJ 2004 L 16, p. 44), as amended by Directive 2011/51/EU of the European Parliament and of the Council of 11 May 2011 (OJ 2011 L 132, p. 1).

( 3 ) According to Article 2(c) of Directive 2003/109, this is the Member State which for the first time granted long-term resident status to a third-country national.

( 4 ) According to Article 2(d) of Directive 2003/109, the term refers to ‘any Member State other than the one which for the first time granted long-term resident status to a third-country national and in which that long-term resident exercises the right of residence’.

( 5 ) Specifically, the first subparagraph of Article 15(4) of Directive 2003/109, read in the light of recital 11 thereof.

( 6 ) This principle is set out in Article 4(3) TEU.