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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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TRAVEL NEWS

EXPLAINED: Which Schengen area countries have border controls in place and why?

Borders within Europe's Schengen area are meant to be open but several countries have checks in place but are they legal and will they be forced to scrap them? Claudia Delpero explains the history and what's at stake.

EXPLAINED: Which Schengen area countries have border controls in place and why?

The European Court of Justice has recently said that checks introduced by Austria at the borders with Hungary and Slovenia during the refugee crisis of 2015 may not be compatible with EU law.

Austria has broken the rules of the Schengen area, where people can travel freely, by extending temporary controls beyond 6 months without a new “serious threat”.

But Austria is not the only European country having restored internal border checks for more than six months.

Which countries have controls in place and what does the EU Court decision mean for them? 

When can EU countries re-introduce border checks?

The Schengen area, taken from the name of the Luxembourgish town where the convention abolishing EU internal border controls was signed, includes 26 states: the EU countries except for Ireland, Bulgaria, Cyprus, Croatia and Romania, plus Iceland, Norway, Lichtenstein and Switzerland, which are not EU members.

The Schengen Borders Code sets the rules on when border controls are permitted. It says that checks can be temporarily restored where there is a “serious threat to public policy or internal security”, from the organisation of a major sport event to a terrorist attack such as those seen in Paris in November 2015.

However, these checks should be a “last resort” measure, should be limited to the period “strictly necessary” to respond to the threat and not last more than 6 months.

In exceptional circumstances, if the functioning of the entire Schengen area is at risk, EU governments can recommend that one or more countries reintroduce internal border controls for a maximum of two years. The state concerned can then continue to impose checks for another six months if a new threat emerges. 

Which countries keep border checks in place?

Countries reintroducing border controls have to notify the European Commission and other member states providing a reason for their decision. 

Based on the list of notifications, these countries currently have controls in place at least at some of their borders: 

Norway – until 11 November 2022 at ferry connections with Denmark, Germany and Sweden. These measures have been in place since 2015 due to terrorist threats or the arrival of people seeking international protection and have sometimes extended to all borders.

Austria – until November 2022 11th, since 2015, at land borders with Hungary and with Slovenia due to risks related to terrorism and organised crime and “the situation at the external EU borders”. 

Germany – until November 11th 2022, since November 12th 2021, at the land border with Austria “due to the situation at the external EU borders”.

Sweden – until November 11th 2022, since 2017, can concern all borders due to terrorist and public security threats and “shortcomings” at the EU external borders. 

Denmark – until November 11th 2022, since 2016, can concern all internal borders due to terrorist and organised criminality threats or migration.

France – until October 31st 2022 since 2015, due to terrorist threats and other events, including, since 2020, the Covid-19 pandemic.

Estonia – until May 21st 2022, from April 22nd 2022, at the border with Latvia “to facilitate the entry and reception of people arriving from Ukraine”.

Norway, Austria, Germany and France also said they are operating checks on non-EU citizens. 

Can Schengen rules survive?

Despite the exceptional nature of these measures, there have been continuous disruptions to the free movement of people in the Schengen area in the past 15 years. 

Since 2006, there have been 332 notifications of border controls among Schengen countries, with increasing frequency from 2015. In addition, 17 countries unilaterally restored border controls at the start of the pandemic. 

In December 2021, the Commission proposed to reform the system to ensure that border controls remain an exception rather than becoming the norm. 

According to the proposals, countries should consider alternatives to border controls, such as police cooperation and targeted checks in border regions. 

When controls are restored, governments should take measures to limit their impacts on border areas, especially on the almost 1.7 million people who live in a Schengen state but work in another, and on the internal market, especially guaranteeing the transit of “essential” goods. 

Countries could also conclude bilateral agreements among themselves for the readmission of people crossing frontiers irregularly, the Commission suggested. 

If border controls have been in place for 6 months, any notification on their extension should include a risk assessment, and if restrictions are in place for 18 months, the Commission will have to evaluate their necessity. Temporary border controls should not exceed 2 years “unless for very specific circumstances,” the Commission added. 

At a press conference on April 27th, European Commissioner for Home Affairs Ylva Johansson said the EU Court ruling about Austria is in line with these proposals.

“What the court says is that member states have to comply with the time limit that is in the current legislation. Of course we can propose another time limit in the legislation… and the court also says that it’s necessary for member states, if they would like to prolong [the border controls] to really do the risk assessment on whether it’s really necessary… and that’s exactly what’s in our proposal on the Schengen Border Code.”

Criticism from organisations representing migrants

It is now for the European Parliament and EU Council to discuss and adopt the new rules.

A group of migration organisations, including Caritas Europe, the Danish Refugee Council, Oxfam International and the Platform for International Cooperation on Undocumented Migrants (PICUM) have raised concerns and called on the EU institutions to modify the Commission proposals.

In particular, they said, the “discretionary nature” of controls in border regions risk to “disproportionately target racialised communities” and “practically legitimise ethnic and racial profiling and expose people to institutional and police abuse.”

Research from the EU Fundamental Rights Agency in 2021, the groups noted, shows that people from an ‘ethnic minority, Muslim, or not heterosexual’ are disproportionately affected by police stops.

The organisations also criticize the definition of people crossing borders irregularly as a threat and a new procedure to “transfer people apprehended… in the vicinity of the border area” to the authorities of the country where it is assumed they came from without any individual assessment. 

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

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