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EUROPEAN UNION

How long do non-EU citizens have to be present in EU to avoid losing residency status?

How long do non-EU citizens have to be present in the European Union to make sure they don’t lose the status of long-term resident? For the first time the Court of Justice of the European Union has given an answer. 

A banner publicising the 'Next Generation EU' campaign and with an EU flag
A banner publicising the 'Next Generation EU' campaign and with an EU flag fluttering near by at the European Commission headquarters, in Brussels on October 13, 2021. (Photo by Aris Oikonomou / AFP)

Being physically present in the EU for a few days in a 12-month period is enough to avoid losing permanent residency, EU judges said.

And once long-term residence is acquired, “it is not necessary for the person concerned to have his or her habitual residence or centre of interests in the European Union,” the Court has specified. 

What’s the background?

Under the EU directive entered into force in 2006, non-EU citizens can apply for long-term resident status once they have lived legally in a country of the European Union for an uninterrupted period of five years. 

To get the status, they need to have a stable source of income and meet their own needs and those of their family members without relying on social assistance. They also need to have health insurance and, if required at the national level, prove they are integrated in society, for instance by knowing the language or the fundamental principles of the country. 

Once acquired, long-term residence grants rights similar to EU citizens in terms or work, education, social security and other welfare benefits. In addition, it should make it easier to move for work or study to other EU countries, although there are still many gaps in the way the directive is applied at the national level.

The status can also be lost if the person concerned is absent from the EU for 12 consecutive months (EU countries can allow longer periods or consider exceptional circumstances). 

But what counts as presence to break the 12-month period and maintain the status? The initial directive did not specify it and only on Thursday the EU Court of Justice provided a clarification. 

Why was the clarification needed?

The case was related to a Kazakh citizen living in Austria. The head of government of the Vienna Province (Landeshauptmann von Wien) had refused his application to renew the long-term residence permit because, in the previous 5 years, he had been present in the EU territory for only a few days a year. 

He then challenged the decision with the local administrative court (Verwaltungsgericht), requesting an interpretation of the rules to the Court of Justice of the EU. 

The administrative court asked the EU Court to clarify whether any physical presence, even of a few days, would be sufficient to prevent the loss of status, or whether an EU member state could set additional conditions, such as having habitual residence or a centre of interests in the country.

And what was the ruling?

The EU Court of Justice ruled this week that “to prevent the loss of long-term resident status” it is sufficient to be present in the EU for a few days in the 12 months following the start of the absence. 

This interpretation of the directive will now have to be followed by national administrations and courts EU-wide (except in Denmark and Ireland, which have opted out from this directive. It is possible for EU countries to opt out from EU directives on justice and home affairs but not on the internal market.)

The EU judges noted that the directive “seeks to ensure the integration of third-country nationals” and since they have already “demonstrated that they are settled in that member state”, they are, in principle, “free, as are EU citizens, to travel and reside, also for longer periods, outside the territory of the European Union” without losing their status. The rule applies as long as they maintain a link with the EU, which means they are not absent for more than 12 consecutive months, the Court added. 

Steve Peers, professor of EU law, human rights law and world trade law at the University of Essex, in England, said “this is the first judgment on this aspect of the loss of status due to absence.”

Loss of EU status doesn’t mean loss of national residency

Professor Peers also explained that when a person loses EU long-term residency status, it is still possible to maintain national status, “either where they hold that status in parallel and there are not sufficient grounds to remove it, or where they are allowed to stay under national law even though they have lost the EU status.”

Of the 23 million non-EU citizens living in the European Union, more than 10 million had long-term residence in 2019, according to the EU statistical office Eurostat.

“These residents are close to acquiring citizenship in the countries where they reside” and “they have got rights to education and vocational training, social security, tax benefits and access to procedures for obtaining housing,” said Maria Luisa Castro Costaluz of Costaluz Lawyers, a law firm in Algeciras specialized in the rights of English-speaking foreigners in Spain. 

“It seems sensible that the long-term status provides to them a better profile in regards to mobility too,” she commented.

And what about for Britons covered by Withdrawal Agreement?

According to legal experts, the Court’s decision would also extend to people covered by the agreement on the UK withdrawal from the European Union. 

While the period of absences accepted for long-term residents is up to 12 months, however, under the Brexit agreement it is up to 5 years for those covered by the Withdrawal Agreement. 

“If the judgment applies by analogy, then it should follow that it should be adapted to the period of absence. So a few days in every five years,” Professor Peers said. But then he added: “Of course no one should act on this assumption until the EU court has confirmed it.” 

The article is published in cooperation with Europe Street News, a news outlet about citizens’ rights in the EU and the UK.

Member comments

  1. Hi
    Could you please explain how the T.I.E works and what it would enable me to do. In the past I had Residencia for 7 years. I own property in England and Spain and would like to know if my T.I.E card could be used just like an EU passport.
    Regards
    Andrew Wilson

  2. Hi,
    Has anyone tried going for the higher cost fibre broadband including calls? I am interested so looked at the list of 101 destinations for unlimited calls. The United Kingdom (under any name) is not listed but the footnote (2) against Sweden says that you cannot make UK calls to 44870 numbers! I guess this is a proofing error but does anyone know?

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ITALIAN ELECTIONS

EU sees trouble but no breakdown if Italy’s far right takes power

The potential emergence of a far-right government in Italy has put the European Union on alert for disruptions, with fears that unity over the war in Ukraine could be jeopardised.

EU sees trouble but no breakdown if Italy's far right takes power

Brothers of Italy leader Giorgia Meloni and the League’s Matteo Salvini are slated to be the big winners in Sunday’s general election on a firmly “Italians First” agenda, in which officials in Brussels largely play the role of the bogeyman.

The biggest worries concern the economy.

Italy’s massive debt is seen as a threat to European stability if Rome turns its back on the sound financing championed by outgoing prime minister, Mario Draghi, a darling of the EU political establishment.

A victory by nationalists Meloni and Salvini would follow fast on an election in Sweden where the virulently anti-migration and eurosceptic Sweden Democrats entered a ruling coalition, just months before the Scandinavian country is due to take over the EU’s rotating presidency.

READ ALSO: Giorgia Meloni’s party will likely win the elections – but will it last?

But officials in Brussels said they would not jump to conclusions about Italy, cautiously hanging on to reassurances made by key right-wing players ahead of the vote.

Giorgia Meloni delivers speech at party rally

Brothers of Italy leader Giorgia Meloni (Rear C on stage) delivers a speech on September 23, 2022 in Naples. (Photo by Andreas SOLARO / AFP)

“This is not the first time that we risk confronting governments formed with far-right or far-left parties,” said European Commissioner Didier Reynders, a veteran of EU politics.

“Let voters choose their elected representatives. We will react to the actions of the new government and we have instruments at our disposal,” he added.

That was echoed by Commission head Ursula von der Leyen, who warned that Brussels had “tools” to deal with errant member states.

“My approach is that whatever democratic government is willing to work with us, we’re working together,” she said.

Anti-immigration League leader Matteo Salvini condemned the EU chief’s comments on Friday, calling them “squalid threats”.

‘Benefit of the doubt’

Italy has huge amounts of EU money on the line. It is awaiting nearly 200 billion euros in EU cash and loans as part of the country’s massive share of the bloc’s coronavirus recovery stimulus package.

In order to secure each instalment, the government must deliver on a long list of commitments to reform and cut back spending made by previous administrations.

EXPLAINED: Is Brothers of Italy a ‘far right’ party?

“To do without the billions from the recovery plan would be suicidal,” said Sebastien Maillard, director of the Jacques Delors institute.

“We will give them the benefit of the doubt,” said an EU official, who works closely with Italy on economic issues.

and right-wing parties Brothers of Italy (Fratelli d'Italia, FdI), the League (Lega) and Forza Italia at Piazza del Popolo in Rome, ahead of the September 25 general election.

(From L) Leader of Italian far-right Lega (League) party Matteo Salvini, Forza Italia leader Silvio Berlusconi, leader of Italian far-right party Brothers of Italy Giorgia Meloni, and Italian centre-right lawmaker Maurizio Lupi on stage on September 22, 2022 during a joint rally of Italy’s coalition of far-right and right-wing parties. (Photo by Alberto PIZZOLI / AFP)

“We will judge them on their programme, who will be the finance minister. The names being mentioned are people that we in Brussels are familiar with,” the official added.

READ ALSO: Political cheat sheet: Understanding the Brothers of Italy

However, when it comes to Russia, many fear that Hungarian Prime Minister Viktor Orban will find in Italy a quick ally in his quest to water down measures against Russian President Vladimir Putin.

A longtime friend of the Kremlin, Salvini has promised that he will not try to undo the EU sanctions. But many believe that his government will make the process more arduous in the coming months.

Whether the war or soaring inflation, “what we are facing in the coming months is going to be very difficult and very much test European unity”, said Fabian Zuleeg, chief executive at the European Policy Centre.

The likely election result in Italy is “not going to help in making some of these hard decisions”, he added.

READ ALSO: TIMELINE: What happens on election day and when do we get the results?

France’s European affairs minister, Laurence Boone, pointed to the headache of the far-right’s unpredictability.

“One day they are for the euro, one day they are not for the euro. One day they support Russia, one day they change their minds,” she told French radio.

“We have European institutions that work. We will work together. But it is true that it is worrying,” she added

READ MORE:

 
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