STATUS OF THIRD-COUNTRY NATIONALS WHO
ARE LONG-TERM RESIDENTS
Draft Council Directive concerning the status of third-country nationals who are long-term residents.
||Articles 63 (3) and (4) EC; consultation; unanimity of participating Member States
||13 March 2001|
|Forwarded to the Council:
||25 April 2001|
|Deposited in Parliament:
||4 May 2001|
|Basis of consideration:
||EM of 20 June 2001
|Previous Committee Report:
|To be discussed in Council:
||No date set|
||Legally and politically important
||Not cleared; further information requested
6.1 The conclusions of the Tampere European Council
called for third-country nationals holding long-term residence
permits in a Member State to be granted by that State "a
set of uniform rights which are as near as possible to those enjoyed
by EU citizens" (paragraph 12). The Directive has been drafted
by the Commission in response to that conclusion.
6.2 The UK's equivalent to "long-term residence"
is known as indefinite leave to remain (ILR). It is generally
granted after four years' legal and continuous residence. The
status is of unlimited duration and does not need to be renewed.
6.3 As the proposal's legal base falls within
Title IV of the EC Treaty, the UK has three months from its formal
publication in which to decide whether to opt in to the measure
(in accordance with the provisions in the Protocol on the position
of the United Kingdom and Ireland annexed to the EC Treaty and
the Treaty on European Union).
6.4 Our sister Committee in the House of Lords
is undertaking a short inquiry into the proposal. It has received
written comments from a number of organisations
which all generally welcome the measure (while identifying shortcomings
in it) and see advantages in the UK's opting into it.
The draft Directive
6.5 The Parliamentary Under-Secretary for Europe,
Community and Race Equality (Ms Angela Eagle) helpfully outlines
the contents of the proposal as follows:
"The draft Directive would require the grant
of long-term resident status to all third-country nationals who
request this status, who have resided legally and continuously
in the territory of the Member State concerned for a period of
five years, and can demonstrate stable and adequate resources
and sickness insurance covering all risks. This period would include
short absences, or absences for specified purposes such as serious
illness or military service. This period would also include residence
in a second Member State as a member of a family of a long-term
resident exercising the right of residence under this draft Directive,
or as a member of the family of a citizen of the Union exercising
the right to free movement of persons.
"Residence as a student would not normally qualify,
but half of pre-doctoral students' duration of residence could
count towards the duration requirement, provided that the student
subsequently switched to a different category. Third-country nationals
who had studied for five years for a doctorate would qualify for
the duration of residence requirement.
"The draft Directive would not apply to the
following third-country nationals: those who reside in the Member
State through temporary protection, or have been granted a subsidiary
form of protection, or those who await the outcome of an application
for refugee status; au pair or seasonal workers; cross-border
service providers or posted workers; members of the family of
EU citizens who had not obtained the right of permanent residence
in their host Member State; and diplomats or international civil
"Third-country nationals would have to provide
evidence of stable resources and sickness insurance to gain long-term
resident status, unless they were refugees or third-country nationals
born in the territory of a Member State.
"Member States could refuse to grant long-term
resident status where the personal conduct of the person concerned
constituted an actual threat to public order or domestic security.
" Procedure for application for
long-term resident status
"The draft Directive would require Member States
to consider an application for long-term resident status within
six months. That period would be extended where additional documentary
evidence was required of the applicant. The draft Directive would
require that long-term residents be issued with an EC residence
permit, and would limit the charges that can be required for the
permit. It would also provide procedural guarantees for the application
" Withdrawal of status
"The draft Directive would require the withdrawal
of long-term resident status: where the long-term resident had
been absent for two years; where the status had been fraudulently
acquired; where long-term resident status had been acquired in
a second Member State; or where the long-term resident was subject
to an expulsion measure. Long-term residents would have the right
to judicial redress where an expulsion decision had been adopted.
Member States would be required to have regard to particular factors,
such as duration of residence, when deciding to expel a long-term
resident, and criminal convictions would not in themselves automatically
justify an expulsion decision...
" Rights of long-term residents
"The draft Directive would provide for long-term
residents to enjoy equal treatment with Member State nationals
for, as a minimum: access to employment and self-employed activity;
education and vocational training; the recognition of qualifications;
social protection including health care; social assistance, social
and tax benefits; access to goods and services, including housing;
freedom of association, affiliation and membership of workers'
or employers' organisations; and free access to the Member State's
"The draft Directive would not prejudice more
favourable national provisions by Member States for the issuance
of residence permits.
" Right of residence in a second
"Under the draft Directive, long-term residents
would be able to exercise the right of residence in a second Member
State. To do so, they would have to engage in economic activity
as an employed or self-employed person, or have sufficient resources
to avoid becoming a financial burden on the second Member State.
They would also need adequate sickness insurance. Long-term residents
would enjoy the same rights that they would have enjoyed in the
first Member State, with the exception of the right to social
assistance and to study grants. Their family members could accompany
them. The second Member State could withdraw the right to residence
where the conditions for residence were no longer met.
"There would be procedural requirements on the
Member State and guarantees for the applicant, in the consideration
of applications for residence in the second Member State. There
would also be evidential requirements, for the applicant, of proof
of compliance with conditions for residence in the second Member
State. Member States could refuse applications where there was
an actual threat to public order or domestic security, or for
reasons of public health.
"Long-term residents exercising their right
of residence in a second Member State would retain their long-term
resident status in the first Member State, under the draft Directive.
After five years' legal residence in its territory, long-term
residents who had exercised the right of residence in the second
Member State could apply to that Member State for long-term resident
status. Where this was granted, the first Member State would be
required to withdraw long-term resident status from the individual
The Government's view
6.6 We concentrate below on the key issues raised
in the Minister's full and detailed Explanatory Memorandum. She
begins by outlining the impact which the proposal would have on
UK law, as follows:
"The duration of residence
requirement differs from the requirements provided for in some
cases by the UK immigration rules. The possible grounds to expel
long-term residents are narrower than the grounds on which the
UK can currently expel those with indefinite leave to remain.
"The draft Directive would give a qualified
right of residence and the right to work as employed or self-employed
persons in the UK to third-country nationals who are long-term
residents in other EU Member States. They do not have such a right
under UK law.
"Article 4 of the proposed Directive contains
a non-discrimination clause, which is modelled on the Charter
of Fundamental Rights (Article 21). Further consideration is being
given to whether such a provision is within the Community's powers
under Article 63 of the TEC, and to its implications in relation
to the non-binding status of the Charter of Fundamental Rights."
6.7 The Minister then points out that the definition
of third-country nationals includes all those who are not EU citizens
within the meaning of Article 17 (1) EC, adding:
include those British nationals who do not have the right of abode
in the UK, including British Nationals (Overseas), British Protected
Persons, British Overseas Citizens, British Dependent Territories
Citizens and most British Subjects."
6.8 In relation to Article 12 of the draft Directive,
which lists the areas in which long-term residents would be granted
equal treatment with nationals, the Minister tells us that most
of the benefits would be similar to those granted to people with
ILR. Current UK practice in relation to higher education would
be incompatible with the requirement, however. The proposed arrangements
would have implications for the UK in student support costs and
in lost overseas income.
6.9 In relation to those Articles which address
the right to residence in a second Member State, the Minister
"The rights awarded
to the third-country national who was long-term resident in a
first Member State, but was exercising their right of residence
in a second Member State, would be broader than third-country
nationals currently receive in the UK... Long-term residents currently
have no rights of residence or rights of access to the labour
markets elsewhere in the EU, and vice versa. This is... a potential
benefit to UK long-term residents, but also would prejudice the
maintenance of our national immigration controls.
"Long-term residents exercising their right
of residence would enjoy equal treatment with nationals apart
from in the field of social assistance and study grants. 'Social
assistance' covers income-related benefits, including income support
and income-based jobseeker's allowance. It is unlikely to include
non-contributory benefits. This means that this category of third-country
nationals might have access, for example, to Attendance Allowance,
Disability Living Allowance and Invalid Care Allowance. Current
UK practice is that third-country nationals qualify for non-contributory
benefits after 26 weeks' residence, but only if they have no condition
or limitation on their leave. This means that the draft Directive
would give those long-term resident third-country nationals, who
were resident in the UK for a limited period, wider access to
"The draft Directive provides for family members
who are joining a long-term resident who has exercised his/her
right of residence in a second Member State. It does not include
the UK's requirements for entry clearance or evidence of accommodation."
6.10 Turning to the issue of frontier control,
the Minister explains:
"It would be necessary
to explore further the practicalities of how UK controls would
operate in respect of those exercising rights under this draft
Directive. In practice, the UK would probably have to allow a
long-term resident from another Member State to enter and remain
while their right of residence was considered.
"Questions would also arise as to whether the
UK could continue to subject to immigration control someone who
had achieved long-term resident status in the UK, who was re-entering
the UK from another Member State.
"The UK would be required to accept back a third-country
national long-term resident of the UK where another Member State
had withdrawn that person's residence permit, without imposing
immigration control on that individual.
"Acceptance of this Directive would result in
third-country nationals long-term resident in other Member States,
having greater access to the UK labour market through the exercise
of their right of residence. Other Member States' selection processes
would, therefore, affect the UK's non-EEA labour force."
6.11 The Minister tells us that the Government
has not yet decided whether to opt in to the draft Directive.
It will inform us of its decision.
6.12 We thank the Minister for her full and
detailed Explanatory Memorandum on this draft Directive. At a
later stage, we may wish to recommend it for debate. Meanwhile
we have a number of questions.
6.13 First, in relation to the draft Directive
itself, we note that the organisations that have written to the
House of Lords have raised several issues. In particular they
- about the categories of third-country nationals
excluded from the scope of the proposal (see paragraph 6.5 above),
especially those granted temporary, or a subsidiary form of, protection;
- that the proposed five-year period is out
of step with the shorter timescales provided to Turkish nationals
legally employed in the EU by Decision 1/80 of the EC-Turkey Association
Council and its subsidiary legislation;
- that several aspects of the proposal do not
provide equal rights for family members of long-term residents.
6.14 We ask the Minister whether she shares
these concerns, and whether there are other aspects of the measure
where she considers more consistency or clarity is needed.
6.15 Turning to the implications of the draft
Directive for the UK, we note that the key question for the Government
is whether participation would be consistent with the maintenance
of border controls. We are surprised to see no reference to consultation
with industry about this proposal. We draw the Minister's attention
to the potential benefits to employers in relation to recruitment
and transfer of staff from other Member States, and ask whether
she agrees that there would be advantages for the UK in this fuller
realisation of the internal market.
6.16 The Minister points out a number of ways
in which indefinite leave to remain differs from the proposed
status of long-term resident. We ask her to assess whether there
would be significant disadvantages for (a) third-country
nationals and (b) the UK government in moving from the former
to the latter.
6.17 In several instances, the Explanatory
Memorandum suggests that implementation of the draft Directive
would involve the UK in increased costs. We ask the Minister why
a regulatory impact assessment "remains under consideration";
it would seem a useful tool in helping the Government come to
a decision over whether to opt in to the measure.
6.18 There is only one reference in the Explanatory
Memorandum to "the potential benefit to UK long-term residents".
In view of the particular problems faced by the UK's long-term
resident third-country nationals as a result of the UK's non-participation
in the Schengen area, we ask whether the Minister believes that,
in this respect, the measure would have benefits.
6.19 We ask the Minister to explain further
her concerns about whether Article 4 of the draft Directive is
within the Community's powers under Article 63EC. We note that
the Commission's Explanatory Memorandum refers to Article 4 of
the draft Directive as being 'in accordance with' Article 21 of
the Charter of Fundamental Rights, and that recital (4) also refers
to the Charter, and we ask the Minister for her views on the appropriateness
of such references to the Charter, given its non-binding status.
6.20 We shall keep the document under scrutiny
until we have the Minister's response.
7 Joint Council for the Welfare of Immigrants; Statewatch;
Advice on Individual Rights in Europe. Back