EU top court clarifies rule of absences for long-term residence

The Court of Justice of the European Union has clarified for the first time how long non-EU citizens have to be present in the European Union to make sure they don’t lose their long-term resident status.

EU judges ruled that being physically present in the territory of the European Union for “a few days” in a 12-month period is enough to maintain long-term residence. 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 added.

While the judgment concerns non-EU nationals in the EU, legal experts say the ruling will extend to individuals with residence rights protected under the Brexit agreement.

What is long-term residence?

Under an EU directive adopted in 2003, non-EU citizens can apply for EU long-term resident status once they have lived legally in a country of the European Union for an uninterrupted period of five years.

To obtain 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 culture of the country where they live.

Once acquired, long-term residence grants rights similar to EU citizens in terms or work, education, social security and welfare benefits, as well as some free movement rights in the EU. In particular, it should be easier for long-term residents to move for work or study to other EU states.

There are however many gaps in the way the directive is applied and the European Commission intends to propose a reform later this year.

How to avoid the loss of residence status?

As a general rule, long-term resident status can also be lost if the person is absent from the EU for 12 consecutive months.

However, the directive does not specify what counts as presence to break the 12-month period in order to maintain the status. On Thursday, the EU Court of Justice provided a clarification.

The case was related to a Kazakh citizen living in Austria who saw his application to renew the long-term residence permit rejected in Vienna because in the previous 5 years he had been present in the EU territory for only a few days a year.

He challenged the decision with the local administrative court requesting an interpretation of the rules to the Court of Justice of the EU.

The administrative court asked the EU top court to clarify whether any physical presence, even of a few days, would be enough 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.

This week, the EU Court of Justice ruled 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.

The EU judges argued 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”.

The principle remains valid as long as the link with the EU territory is not “loosened”, which means not being absent for more than 12 consecutive months, the Court added.

“These residents are close to acquiring citizenship in the countries where they reside… 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.

The ruling now provides guidance to national administrations and courts across the EU. The only countries that are excluded are Denmark and Ireland, which have opted out from this directive.

Is the rule on absences extended to the withdrawal agreement?

According to legal experts, the Court’s decision also extends to people covered by the agreement on the UK withdrawal from the European Union, as its provisions derive from EU legislation.

The withdrawal agreement covers British citizens who were living in the EU and EU citizens who were living in the UK by 31 December 2020. Both groups could obtain permanent residence status (‘settled status’ in the UK) after 5 years of lawful residence in the respective country.

However, while the period of absence accepted for long-term residents is up to 12 months, under the Brexit deal it is up to 5 years. The withdrawal agreement also does not specify what counts as presence to interrupt the clock.

“If the judgment applies by analogy [to the withdrawal agreement], then it should follow that it should be adapted to the period of absence. So a few days in every five years,” said Steve Peers, professor of EU law, human rights law and world trade law at the University of Essex.

But “of course no one should act on this assumption until the EU court has confirmed it,” he added.

Professor Peers said this is “the first judgment on this aspect of the loss of status due to absence” and if extends to the Brexit deal, it would apply equally to EU citizens in the UK and UK citizens in the EU covered by the agreement.

He also explained that within the European Union, “EU and national forms of permanent residence status are parallel” and even when a person loses EU long-term resident status, it is possible to maintain national status, “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.”

Of the 23 million non-EU citizens living in the EU, more than 10 million had long-term residence status in 2019, according to the EU statistical office Eurostat. In addition, more than 6 million people have their residence rights protected under the agreement on the UK withdrawal from the EU.

Claudia Delpero © Europe Street News

Photo by Anete Lūsiņa on Unsplash

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