COM(2019) 161 final
REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT AND THE COUNCIL
on the implementation of Directive 2003/109/EC concerning the status of third-country
nationals who are long-term residents
The first Commission Report (“the 2011 Report”)
on the implementation of Directive 2003/109/EC
(“the Directive”) was published on 28 September 2011, complying with the reporting obligation under Article 24 of the Directive. This report revealed a general lack of information among third-country nationals about the EU long-term residence (LTR) status and the rights attached to it, as well as a number of shortcomings in the transposition of the Directive into national law (for example, restrictive interpretation of its scope, additional conditions for admission, high administrative fees, illegal obstacles to intra-EU mobility, watering down of the right of equal treatment and protection against expulsion).
This second Report gives an updated overview of how EU Member States
have been transposing and implementing the Directive, including for the first time information on the implementation of Directive 2011/51/EU
which amended Directive 2003/109/EC by extending its scope to beneficiaries of international protection. Member States had until 20 May 2013 to transpose Directive 2011/51/EU into their national legislation. The Commission launched infringement proceedings against 11 Member States for not having transposed the Directive in time or for not having properly informed the Commission of the adoption of national legislation. Eight of these cases have been closed.
This Report has been drawn up on the basis of a study conducted by an external contractor throughout the period 2014-2016 and of other sources, including complaints
, petitions, information exchanges with Member States, and infringement procedures.
The 2011 Report highlighted the low impact that the Directive had had in many Member States, with few EU LTR permits issued, and 80% of them issued by only four Member States. In 2017, though a higher general uptake can be reported (3,055,411 EU LTR permits compared to 1,208,557 in 2008), the same four countries account for an even higher percentage of EU LTR permits issued (90%), with only Italy having issued around 73% of them
. This low uptake can be attributed to the lack of information available about the LTR status among not only third-country nationals but also the national migration administrations; and to the "competition" with long-established national schemes, which are allowed by Article 13 of the Directive (21 Member States out of 25 have retained their national schemes).
II. COMPLIANCE OF THE TRANSPOSITION MEASURES
Personal scope - Article 3
Article 3 defines the scope of the Directive and a number of exclusions (i.e. situations where the Directive does not apply). The 2011 Report highlighted one particular implementation problem across several Member States, related to the exclusion of third-country nationals who have been admitted solely on temporary grounds (Article 3(2)(e)), with some Member States applying a very broad reading of this exception. The Court of Justice of the European Union (CJEU) has clarified the meaning of this provision, by stating that the Directive excludes from its scope "residence of third-country nationals which, whilst lawful and of a possibly continuous nature, does not prima facie reflect any intention on the part of such nationals to settle on a long-term basis in the territory of the Member States"; and that "the fact that a residence permit contains a formal restriction does not in itself give any indication as to whether that third-country national might settle on a long-term basis in the Member State, notwithstanding the existence of such a restriction"
. While the CJEU ultimately stated that it remains the responsibility of the national courts to individually assess the legality of such exclusions, the Commission has not received complaints on alleged abuse of this exception by Member States.
The original exclusion of refugees from the scope of the Directive was lifted in 2011
; however, the Directive still does not apply to third-country nationals who have a form of protection other than the one laid down in the Asylum Qualification Directive
(Article 3(2)(c)). The question as to how national protection statuses should be distinguished from other national legal residence statuses has not been fully clarified so far by the case-law of the CJEU or national courts.
Duration of residence - Article 4
Third-country nationals are required to have resided legally and continuously within the territory of the Member State for five years before submitting the application for LTR status. The 2011 Report highlighted that some Member States could be applying the concept of "lawful" residence in a restrictive way, in particular by excluding holders of specific visas or residence permits. The Commission investigated one of those cases, a national law that required applicants for LTR status to be holder of the national permanent residence permit. Following information exchanges with the Commission, the Member State has changed its national law and made it compliant with the Directive.
In relation to beneficiaries of international protection, the Directive provides that at least half of the period between the date of lodging of the application for international protection and the granting of the residence permit as a beneficiary of international protection is taken into account, where that period does not exceed 18 months (Article 4(2)). Most of the Member States take into account half of that period, while others provide that the whole period is taken into account.
So far the Commission has not received any complaints regarding the incorrect implementation of Article 4(1a), establishing that Member States shall not grant LTR status in certain cases of withdrawal of international protection in accordance with the Asylum Qualification Directive.
Conditions for acquiring long-term resident status - Article 5
Article 5 lays down the conditions for acquiring long-term resident status, namely that the applicant must provide evidence of having sufficient stable and regular resources, sickness insurance and (optionally) the fulfilment of integration conditions.
Most Member States have established the national minimum wage or minimum subsistence means as a threshold for assessing the condition of stable and regular resources. Some Member States also define the amount of financial resources required for the family members of long-term residents. As clarified by the CJEU with reference to the Family reunification Directive 2003/86/EC
, Member States may not impose a minimum income level below which all applications will be refused, irrespective of an actual examination of the individual case. This interpretation can also be applied to the Long-term residents Directive.
The Commission has checked with several Member States that a proportionality assessment is in place when assessing the resources conditions. In one of those cases, following an infringement procedure the Member State concerned (MT) amended its law by introducing a flexibility clause requiring its national competent authorities to consider all relevant circumstances of the individual case before taking a decision to refuse or accept the application.
A majority of Member States require applicants for long-term residence to comply with integration conditions, in general requiring knowledge of their official language. Some Member States also require the attendance of civic knowledge courses. In the P&S case
, the CJEU considered the possibility for Member States to establish integration requirements after acquiring the LTR status, ruling that the Directive does not prevent those requirements, as long as they do not result in the withdrawal of the status.
Public policy and public security - Article 6
All Member States have transposed this optional ground for refusal, though often using different terminology and establishing different thresholds on previous criminal convictions. However, not all Member States have explicitly transposed the balancing criteria laid down in the second paragraph of Article 6(1), which require to take into account the personal situation of the applicant when taking the relevant decision. This could create compliance issues in the concrete application of refusal decisions by the competent authorities. However, the Commission has so far not received complaints on this matter.
Documentary evidence - Article 7(1)
The 2011 Report highlighted, as a problematic issue under some national laws, that the failure to provide documentary evidence showing an appropriate level of accommodation is considered grounds for refusing an application. From the available information on the implementation of this provision in those Member States that have opted for such documentation requirement, it seems that in most cases the proof of appropriate accommodation is considered as a condition for acquiring the status. In absence of the CJEU’s clarification on this point, the academic literature is divided on whether this implementation is compliant with the Directive
Following an infringement procedure against Malta, whose legislation required that accommodation must not be shared with other people who are not family members, Malta amended its legislation to make it compliant with the Directive.
Time-limit to process the application - Articles 7(2)
While all Member States have correctly transposed the six-month deadline for processing applications provided under Article 7(2), many of them do not comply with this deadline in practice. In particular, longer delays have been reported following the refugee crisis that started in 2015, in those Member States where the competent national authorities responsible for processing applications on long-term residence are also responsible for processing asylum applications (e.g. in Sweden).
Under Article 7(2), fourth subparagraph of the Directive, any consequences of no decision being taken within the six-month deadline must be determined by national legislation. This provision has been correctly transposed by the majority of Member States: in most cases through reference to general administrative laws; in other cases through specific provisions. However, as highlighted in the implementation report of the Single Permit Directive 2011/98/EU
, in practice the remedies applied in some Member States do not appear to be sufficient and can lead to legal uncertainty and excessive processing times.
Contrary to more recent directives on legal migration, the LTR Directive does not contain any provisions on application fees. However, the 2011 Report highlighted that excessively high fees should be regarded as contrary to the principle of proportionality and as equivalent to an unlawful additional condition for admission endangering the "effet utile" of the Directive.
This was confirmed by the CJEU in two judgements
, establishing that "the level at which [the] charges are set must not have either the object or the effect of creating an obstacle to the obtaining of the long-term resident status conferred by the Directive, otherwise both the objective and the spirit of [the] directive would be undermined.
". The Court added that to assess the proportionality of such fees different elements should be taken into account, including: 1) the financial impact of the fees on the applicant; and 2) the actual administrative costs for processing an application and issuing a permit, also compared with the fees for issuing similar documents to nationals and EU citizens.
On this basis, the Commission launched infringement procedures on disproportionate fees (where relevant covering also other legal migration directives)
against a number of Member States: the Netherlands, Italy, Bulgaria, and Greece – cases closed following change in the national legislation lowering the fees to a proportionate level; and Portugal – case still ongoing.
EU long-term residence permit - Article 8
All Member States have correctly transposed the Article 8 provisions on the form and validity of the EU long-term residence permit. On the validity of the permit, most Member States opted for a five-year validity period, others for a validity of up to 10 years or an unlimited period.
While Article 8 provides that the validity of the permit must be for at least five years, the long-term residence status once acquired is permanent, subject to the withdrawal conditions under Article 9.
Remarks to be entered in long-term resident’s EU residence permits for beneficiaries of international protection - Articles 8(4)-(6) and 19a
Where the LTR status is granted to a beneficiary of international protection, a remark should be noted in the permit, including the name of the Member State that granted the protection (or to which the protection is transferred, in cases of intra-EU mobility). Following infringement proceedings on non-communication of the transposition measures of Directive 2011/51/EU, several Member States amended their legislation to ensure full transposition of the provisions concerned. The Commission has so far not received any complaints in relation to the correct implementation of these provisions.
Withdrawal or loss of status - Article 9
Overall, Article 9 has been correctly transposed by the Member States, with some minor compliance issues.
Under Article 9(2) Member States may provide that absences from their territory exceeding 12 consecutive months or for specific or exceptional reasons do not lead to the withdrawal or loss of LTR status. Some Member States availed themselves of this faculty by providing that the absence of 12 consecutive months from the territory of the EU leads, as a rule, to the loss of status, while also providing for a possibility to allow a longer period of absence due to exceptional circumstances. However, other Member States opted for a longer period of time as a rule (e.g. Finland a period of two years that can be further extended due to specific and exceptional circumstances, and France three years).
Article 9(3) allows Member States to withdraw the LTR status in cases where the long-term resident constitutes a threat to public policy, but such threat is not a reason for expulsion under Article 12. Less than half of the Member States decided to adopt this option.
Article 9(3a) gives Member States the possibility to withdraw LTR status where that status was obtained on the basis of international protection, and this protection has been withdrawn under certain provisions of the Asylum Qualification Directive (because the beneficiary should have been excluded from it, or misrepresented or omitted facts that were decisive for the granting of the status). The Commission has not received any complaints about the incorrect implementation of this provision by Member States.
Article 9(5) provides a “facilitated procedure” for the re-acquisition of long-term resident status. Member States have wide discretion in implementing this provision since the conditions and procedure must be determined by national law. However, in some cases those conditions consist of excessive requirements that do not seem to comply with the objective of a facilitated procedure (e.g. BE requires residence for 15 years before departure).
Procedural guarantees - Article 10
With regard to the procedural guarantees under Article 10, while some Member States provide for administrative arrangements for long-term residents in their immigration laws, others only make reference to general administrative laws. The Commission recently launched an infringement procedure against Romania for an alleged breach of the obligation to give reasons in case of refusal decisions based on grounds of public security, arguing that even in cases where the relevant information is covered by State secret the applicant has the right to know the essence of that information, in order to be able to exercise the right to challenge the decision.
Equal treatment - Article 11
As already highlighted in the 2011 Report, several Member States have not adopted specific transposition measures of the equal treatment principle in their immigration legislation, but rather rely on general provisions regulating employment, education or social security, often in combination with the general principle of non-discrimination. The absence of explicit transposition measures may bring about difficulties in the correct implementation of the equal treatment principle at national level, as confirmed by the numerous complaints received by the Commission in this area.
On access to employment and self-employed activities, most Member States have established provisions that limit access to activities entailing even occasional involvement in the exercise of public authority. The Commission has taken action against some Member States when considering that these provisions went beyond the scope of the derogation. Following exchanges between the Commission and the national authorities in 2014, a Member State amended its legislation that did not give third-country nationals, including long-term residents, access to the public transport sector and to the national civilian service. In 2018 the Commission launched infringement proceedings against Hungary with regard to a national law barring long-term residents access to the veterinary profession.
On access to social security, social assistance and social protection, the CJEU has clarified
the scope of the "core benefits" derogation provided in Article 11(4), by stating it must be understood as allowing Member States to limit equal treatment, with the exception of social assistance or social protection benefits which enable individuals to meet their basic needs such as food, accommodation and health.
No specific transposition requirement was necessary for the provision introduced by paragraph 4a, according to which restrictions on equal treatment are to be without prejudice to the provisions of the Asylum Qualification Directive. The Commission has not received any complaints about the incorrect implementation of this provision.
Protection against expulsion - Article 12
Article 12 of the Directive has been correctly transposed by most Member States. However, some have not explicitly transposed that the threat to public policy or public security should be actual and sufficiently serious. Furthermore, some Member States have not completely transposed all the balancing factors provided in paragraph 3. In a recent case
, the CJEU ruled that Spanish legislation is non-compliant with the Directive, in so far as it does not provide for the assessment of the factors foreseen in Article 12(3) to expulsion decisions following a conviction for a criminal offence punishable by a term of imprisonment of more than one year.
Paragraphs 3a, 3b, 3c and 6 of Article 12 provide specific rules for expulsion decisions concerning holders of a long-term residence permit in one Member State who obtained the international protection status in another Member State. The Commission has not received any complaints regarding the incorrect implementation of these provisions.
More favourable provisions/relationship with national permanent residence permits - Article 13
The 2011 Report highlighted a risk of competition between national and EU permits, which does not necessarily result in more favourable provisions being applied to the third-country nationals, due to the difficulty to compare advantages and disadvantages respectively granted by the two kinds of permits. This problem was confirmed by the results of a 2016 European Migration Network (EMN) ad-hoc query
, highlighting that in some cases national long-term residence permits, while granted under more favourable conditions (e.g. less than five years of residence, or no income requirement), provide fewer equal treatment rights or less protection against expulsion.
In that respect, the CJEU has in the meantime clarified
the interpretation of Article 13, which, despite its title, does not provide Member States with the possibility to grant the LTR status under more favourable conditions, but it rather allows the co-existence of distinct national long-term or permanent residence statuses. All Member States but four (Austria, Italy, Luxemburg, and Romania) have maintained parallel national schemes.
Conditions to residence and work in another Member State - Articles 14, 15, 16, 18
The 2011 Report highlighted the transposition and implementation of the intra-EU mobility provisions of the Directive as being one of the most problematic issues. It also presented the very low number of long-term residents who had exercised their right to reside in another Member State (fewer than 50 per Member State). According to available (partial) data from EMN
, intra-EU mobility rights provided under the Directive seem to continue being underused. This could be partly because the right is not automatic but subject to a number of detailed conditions (see below). As confirmed by numerous complaints received by the Commission, those conditions and the strict implementation by most of the Member States often make the actual exercise of intra-EU mobility rights very difficult in practice.
Article 14(2) provides that long-term residents in a first Member State have the right to reside in a second Member State on three main grounds: exercise of an economic activity; studies or vocational training; other purposes. While some Member States do not refer to "other purposes", others seem to provide an exhaustive list of them, which may result in a restrictive implementation of the provision.
A number of Member States have opted under Article 14(3) to apply labour market tests to long-term residents from other Member States who apply to reside for exercising an economic activity.
Article 14(4) of the Directive allows Member States to limit the total number of persons entitled to be granted right of residence, if such limitations were already set out in the existing legislation at the time of the adoption of the Directive. Only three have applied this option.
The second paragraph of Article 14(5) allows Member States to authorise long-term residents from other Member States to reside as seasonal workers, a category that is not covered by the Seasonal workers Directive 2014/36/EU that only applies to third-country nationals residing outside the EU. This option has been applied by four Member States.
All Member States have chosen to apply the option provided by Article 15(2)(a) of the Directive concerning the condition for applicants to prove having stable and regular resources. Some Member States have established fixed amounts (corresponding to the national minimum income), which, to be compatible with the principle of proportionality confirmed by the CJEU in the Chakroun case
, must be applied taking into account the specific circumstances of each individual case.
Article 15(3) of the Directive allows Member States to require long-term residents applying for a residence permit to comply with integration measures, if integration conditions had not been applied to the long-term resident in the first Member State. Five Member States have decided to apply this option.
Under Article 16(1) of the Directive, spouses and minor children have the right to accompany and join the long-term resident, if the family was already constituted in the first Member State. Some Member States have established additional requirements that may constitute an obstacle to the exercise of mobility. For example, Czechia obliges family members to submit an application together with additional documents, namely a criminal record and a comprehensive medical report. In Germany, family members may only join if the long-term resident has sufficient living space; in Estonia, the spouse has the right to join only if already resided in the first Member State.
Article 16(2) of the Directive provides the option to extend the right to accompany and join the long-term residents to family members other than spouses and minor children. This option has been transposed by some Member States.
Under Article 19(2) of the Directive, the second Member State must issue the long-term resident with a renewable residence permit whenever the conditions are fulfilled, and must inform the first Member State of its decision. However, some Member States have not transposed such information obligation in their legislation.
Equal treatment in the second Member State - Article 21
Under Article 21 of the Directive, upon receipt of the residence permit in the second Member State, permit holders and their family members are entitled to equal treatment in the areas and under the conditions of Article 11, including access to the labour market. Member States can opt to restrict equal treatment to certain employed and self-employed activities, for a period not exceeding 12 months. Following exchanges between the Commission and the national authorities, a Member State has amended its legislation that required the family members of long-term residents from other Member States to hold a work permit valid only for a specific job or sector, also after the first 12 months of residence.
Under Article 21(2), Member States may restrict access to employed and self-employed activities to those holding a residence permit for the purpose of studies or vocational training or for other purposes. This option is applied by some Member States.
Since 2011, the implementation state of play of the long-term residents Directive across the EU has improved, also thanks to the numerous infringement cases launched by the Commission and judgements issued by the CJEU. However, some outstanding issues continue to undermine the full achievement of the Directive's main objectives, which are to: constitute a genuine instrument for the integration of third-country nationals who are settled on a long-term basis in the Member States
; and contribute to the effective attainment of an internal market
On the first objective, it was noted above that most Member States have not actively promoted the use of the EU LTR status, and continue to almost exclusively issue national long-term residence permits unless third-country nationals explicitly ask for the EU permit. In 2017, in the 25 Member States bound by the Directive there were around 3.1 million third-country nationals holding a EU LTR permit, compared to around 7.1 million holding a national long-term residence permit
. However, as highlighted by academic literature, if it was ascertained that the national immigration authorities actively promoted the national permit instead of the EU permit, this would undermine the effet utile of the Directive
The Commission will monitor this aspect of the implementation of the Directive and will encourage the Member States to take up the EU LTR permit as an instrument that is beneficial to the integration of third-country nationals.
On the second objective, the way that most Member States have implemented the intra-EU mobility provisions of the Directive has not really contributed to the attainment of the EU internal market. Only few long-term residents have exercised the right to move to other Member States. This is also because in some cases exercising this right is subject to as many conditions as the ones for a new application for a residence permit, or the competent national administrations do not have enough knowledge of the procedures, or they find difficult to cooperate with their counterparts in other Member States. The Commission will encourage the Member States to improve the implementation of the intra-EU mobility provisions, also by promoting the cooperation and exchange of information between national authorities.
The Commission will continue to monitor the implementation of the Directive by the Member States in accordance with its powers under the Treaties and may take appropriate action including, where necessary, the initiation of infringement procedures.