UK: In and Out: Residence in the EU

Last Updated: 30 November 2001
Article by Elspeth Guild

Elspeth Guild outlines the proposals contained in the EU Directive on residence status &its implications for the UK

  • Who will qualify
  • What benefits will it confer
  • Withdrawal of the status and expulsions/deportations
  • 0n March 13, 2001 the European Commission published a proposed Directive on the status of third country nationals who are long-term residents in a Member State. If adopted in its current form, the Directive would give to third country nationals who have been resident in a Member State for at least five years the right to reside, work or study in any other Member State. The measure would assist in the completion of the internal market; and also seeks to fulfil the commitment made by the European Council in Tampere, Finland in October 1999 to grant to Europe's third country nationals rights and obligations comparable to those of EU citizens. The UK was strongly in favour of the Tampere conclusions. However, the UK is entitled to remain outside this system and has now decided to opt out for the moment. In addition, Sub-Committee F of the House of Lords' Select Committee on the European Union is carrying out an enquiry into the proposal. (This article is based on submissions made to Sub-Committee F of the House of Lords' Select Committee on the EU in their inquiry into the proposed Directive.)

    It is estimated that there are 13 million third country nationals in the Union: it is this group which would benefit from the proposal.

    I will consider the Commission proposal from three perspectives:

  • the fundamental elements relevant to security of residence for foreigners;
  • the current internal legislation of the Member States, with specific reference to UK legislation;
  • the Recommendation of the Committee of Ministers of the Council of Europe of September 13 2000 concerning the security of residence of long-term migrants.
  • Three fundamental considerations about security of residence

    The Commission is proposing to establish an EU-wide secure residence status with residence rights anywhere in the Union attached. There are three critical questions which must be asked about any status which presents itself as "secure".

    1. How is the status acquired?

    The proposal deals with acquisition of the status at Arts 5-8. Any third country national (not benefiting from a better status from some other source of Community law) who has resided lawfully and continuously for five years is entitled to the status on application. Time spent as an asylum seeker only counts if the individual is recognised as a refugee. The residence periods of students only count as half - so students must clock up ten years (with an exception for doctoral students). The individual is required to provide evidence of sufficient resources (at the level of minimum social security benefits) and health insurance. An exception is made for refugees and third country nationals born in the territory. A Member State is required to confer the status on presentation of specified documents and within a time limit. Exceptions are permitted on grounds of public order and domestic security (also defined strictly).

    The Council of Europe recommendation provides that Member States should grant the status of long-term immigrant - first, to anyone who has resided lawfully and habitually for at least five years and for a maximum of ten years otherwise than as a student; secondly, to anyone who has been authorised to reside permanently or for a period of at least five years in the territory; thirdly, to a family member who has been authorised to reside on that basis for five years. Member States are permitted to add other conditions to the first group only. Thus persons who have been admitted for permanent residence should get the status immediately, which is more generous than the Directive proposal.

    In a recent study of the law and practice of the Member States carried out by the University of Nijmegen, it was found that while a secure status exists in all Member States the period of time for acquisition varies from two to fifteen years. In many Member States, there is a maintenance requirement which is not applied to persons who are refugees or have been granted protection because of their fear of torture in their country of origin; this is the case in the UK. In the UK, the status is entitled "indefinite leave to remain" (or if acquired on entry, "indefinite leave to enter"). It is acquired (1) immediately by some family members (parents and children) joining sponsors who are either British or have the status and by persons recognised as refugees; (2) after one year by spouses of sponsors who are either British or have the status; (3) after four years by persons who entered in work/investment-related capacities or whose residence is based on a fear of torture in their country of origin; (4) after ten years by persons who have lived lawfully in the UK for that period-mainly students; (5) after 14 years by those who have resided lawfully and unlawfully or totally unlawfully in the UK (a type of rolling regularisation programme). However, unlike most EU States, acquisition of the status in the UK is not by right but discretionary. In practice a person fulfilling the conditions will receive the status.

    The main consequences of the proposed Directive for the UK as regards acquisition of the status would be: (1) a duty to grant the status to qualifying persons; (2) the level of maintenance is limited to that of social security benefits - at the moment it is a flexible limit. The Directive provides, at Art 14, for Member States to continue to grant national secure residence statuses. However, these statuses would not give rise to rights of residence under the Directive. The UK has strongly urged for the use of cross-recognition mechanisms in the implementation of the new immigration and asylum title of the EC Treaty. The addition of a provision requiring cross-recognition of national secure residence statuses in addition to the five-year long stop would seem logical for the UK.

    2. What are the rights attached to the status?

    The Commissions proposal contains at Art 12 a list of benefits which the status must include: (1) access to economic activities; (2) education and vocational training; (3) recognition of diplomas; (4) social protection including social security and health care; (5) social assistance; (6) social and tax advantages; (7) access to goods and services including public housing; (8) freedom of association an affiliation and trade union membership; (9) access to the whole territory of the State. The Council of Europe's recommendation includes a similar list but also includes active and passive participation in public life at local level. In both cases the question of family reunification is dealt with in another instrument. At the national level, many benefits are accorded to persons who have not achieved this status yet, for instance, contributory social security benefits are accorded on the basis of contributions not residence status. In UK law this is certainly not the case; most of the rights are not tied specifically to immigration status. Changes in social assistance benefits rules mean that access to some benefits is restricted even after a person acquires indefinite leave to remain, or indeed citizenship. Thus, this part of the list is not exceptional.

    However, the right to residence in any Member State and to exercise economic activities or to study there is innovative. In effect, what is proposed is that after a third country national has acquired the status of long-term resident and this status has been confirmed by the issue of the appropriate document, the individual will have a right to free movement similar to that of Community nationals, i.e. to move, reside and take up activities anywhere in the Union. Arts 15-18 set out the right. There is no similar provision in the Council of Europe recommendation.

    One of the more difficult issues to resolve is the differential rates of employment and workplace advancement of some ethnic minority groups in comparison with the white population in the UK. While this problem is by no means directly linked to the colour of a person's passport, the fact of having a non-EU passport creates another barrier to employment and advancement: the individual cannot seek to better his or her chances in another EU Member State. The proposal would change this situation.

    3. How is the status lost and deportation/expulsion become a real possibility?

    There are two aspects to this question, first how can the status once acquired be withdrawn, and secondly on what grounds, if at all, can an individual be deported or expelled? The first question is dealt with in Art 10 of the proposal, the second in Art 13. The proposal permits the Member State to withdraw the long-term resident status on four grounds (1) where the individual has been absent from the territory for two or more consecutive years, with the exceptions relating to military service, secondment for employment purposes, studies, research, serious illness, pregnancy or maternity; (2) fraud in the acquisition of the status; (3) acquisition of the status in another Member State; (4) adoption of an expulsion measure. In practice, the exceptions as regards absence are sufficient to cover most people who are unavoidably detained abroad for a substantial period of time; fraud and acquisition of the status elsewhere in any event are unlikely to involve substantial numbers; this leaves expulsion as a major consideration.

    The Council of Europe recommendation provides that the secure residence status can only be withdrawn on the basis of: (1) fraud or concealment of relevant information; (2) more than six months' residence outside the State and no request for permission to remain further abroad; (3) conviction of serious crimes; (4) constituting a serious threat to national security. In the national law of the Member States there is some variation on the grounds for withdrawal of the status. In all Member States there are some provisions on fraud, though some Member States place a bar on withdrawal of the status on the grounds of fraud after a specified period of residence. In all Member States long absence from the territory is a ground for withdrawal of the status but the period varies. In the UK the period of permitted continuous absence is two years, but the status can be lost before that period expires if the individual expresses the view that he or she has become resident in another country.

    Turning then to deportation, the Commission proposes that this be permitted only where the personal conduct of the individual constitutes an actual or sufficiently serious threat to public order or domestic security that affects a fundamental interest of society. The proposal specifies that personal conduct which is not sufficiently serious to justify measures against own nationals can never quality. Further, neither criminal convictions of themselves nor economic reasons can justify deportation. Before a decision to deport a long term resident can be taken, the Member State must have regard to (1); the duration of the residence of the individual in the territory; (2) the person's age; (3) the consequences for the person concerned and his or her family members; (4) the links with the country of residence or the absence of links with the country of origin.

    The Council of Europe recommendation permits deportation where an individual has been convicted of serious crimes or presents a serious threat to national security. However, before a decision can be taken the Member State must take into account the jurisprudence of the European Court of Human Rights on the right to private and family life - including (1) the personal behaviour of the immigrant; (2) the duration of residence; (3) the consequences of both the immigrant and his or her family; (4) existing links of the immigrant and his or her family to his or her country of origin. In the UK deportation of a person with indefinite leave to remain is exceptional. With only very rare exceptions (usually on national security grounds) the reason for making a deportation decision is one or more criminal convictions of a serious nature. The factors where the Immigration and Nationality Directorate must take into account before taking a deportation decision are very similar to those set out in the proposed Directive and the Council of Europe recommendation though slightly wider (the employment record of the individual etc).

    Creating insecurity:

    Directive 2001/40

    Finally, in this area some see the need for compensatory measures to provide security of residence status for the EU's third country nationals following the adoption on 28 May, 2001 of Directive 2001/40 on the mutual recognition of decisions on the expulsion of third country nationals (OJ 2001 L 149/34). The Directive relates to the situation where one Member State has taken an expulsion decision against a third country national on the basis of: (1) a conviction for an offence punishable by a penalty involving deprivation of liberty of at least one year (which may include very trivial matters indeed as the penalty for the individual does not need to be one year's imprisonment, that must only be the minimum possible penalty for the offence); (2) there are serious grounds for believing that a third country national has committed serious criminal offences or there is strong evidence of his or her intention to commit such offences, though in both cases the decision must have been taken on the basis that the individual is a serious and present threat to public order or to national security and safety; or (3) failure to comply with national rules on entry and residence of aliens. In such cases, the Member States, including the UK, have the power to recognise automatically one another's decisions and to execute expulsion decisions of the other Member State if the individual is found in its territory. This is draconian because there is no real protection for the individual whose remedies lie in another Member State. It is unrealistic as it anticipates that the administrations of the Member States are eager to carry out complicated and expensive expulsion orders on one another's behalf.

    The proposed long-term resident Directive might counteract the negative effects of the expulsion decisions Directive. If the Member States are going to recognise one another's deportation decision then at least there should be a common standard on security of residence. Those who have lived and worked alongside us in our States for many years are part of our identity. We harm ourselves when we make harsh rules based on the colour of our passports.

    1A third country national is a person who is not a citizen of any EC Member State (or for these purposes, Iceland, Liechtenstein or Norway). This figure also includes persons with less than five years continuous residence in a Member State so exceeds the number of persons who would be eligible to benefit from the proposed Directive.

    2See National Report: UK by E Guild & R Cholewinski in B Nascimbene Expulsion and Detention of Aliens in the European Union Countries, Guiffre Editore: Milan 2001 pp 497-534.

    3See P van Dijk "Protection of "integrated" aliens against expulsion under the European Convention on Human Rights" and C Harvey "Promoting insecurity: public order, expulsion and the European Convention on Human Rights" in E Guild & P Minderhoud, Security of Residence and Expulsion: Protection of Aliens in Europe, Kluwer Law International: the Hague, 2001 pp 23-40 & 41-58.

    The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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