In and Out: Residence in the EU

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...