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Rolfus
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 Posted: Fri Dec 10, 2010 11:48 am Post subject: Directive 2003/109/EC Long Term Residents |
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This Directive harmonises Permanent Residence after 5 years, which is potentially very useful for non-EEA nationals. As always there are difficulties with transposition into national legislation, and the UK, Ireland and Denmark have specifically opted out.
National legislation in the countries I have looked at says you lose Permanent Residence status after two years absence from the country. This is consistent with Directive 2004/58/EC (The Citizens Directive) | Quote: | DIRECTIVE 2004/58/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL
of 29 April 2004
Article 16
4. Once acquired, the right of permanent residence shall be lost only through absence from the host Member State for a period exceeding two consecutive years.
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But it is very different from Directive 2003/109/EC
| Quote: | COUNCIL DIRECTIVE 2003/109/EC
of 25 November 2003
concerning the status of third-country nationals who are long-term residents
Article 9
Withdrawal or loss of status
1. Long-term residents shall no longer be entitled to maintain long-term resident status in the following cases:
(a) [[ fraudulent acquisition ]
(b) [ expulsion;]
(c) in the event of absence from the territory of the Community for a period of 12 consecutive months.
2. By way of derogation from paragraph 1(c), Member States may provide that absences exceeding 12 consecutive months or for specific or exceptional reasons shall not entail withdrawal or loss of status.
3. [threat to public]
4. The long-term resident who has resided in another Member State in accordance with Chapter III shall no longer be entitled to maintain his/her long-term resident status acquired in the first Member State when such a status is granted in another Member State pursuant to Article 23. In any case after six years of absence from the territory of the Member State that granted long-term resident status the person concerned shall no longer be entitled to maintain his/her long term resident status in the said Member State.
By way of derogation from the second subparagraph the Member State concerned may provide that for specific reasons the long-term resident shall maintain his/her status in the said Member State in case of absences for a period exceeding six years.
5. With regard to the cases referred to in paragraph 1(c) and in paragraph 4, Member States who have granted the status shall provide for a facilitated procedure for the re-acquisition of long-term resident status.
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Does anyone understand what has happened in European Law?
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mcovet
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| Posted: Fri Dec 10, 2010 8:29 pm Post subject: Re: Directive 2003/109/EC Long Term Residents |
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You mean 2004/38 and not 58?
I am trying to grasp the concept of the permanent residence being recognised by other member states. If a non-EEA national with PR goes to live in another Memb St, his PR from the UK would be recognised, however, if he never returns to the UK within 2 years, he loses it? While living abroad. How is this interpreted? He can keep the PR but only if he keeps returning back to the UK, or is this simply an entrance document for other Member States.
I understand that UK opted out of this one, but those he opted in (I presume the Schengen States) would still recognise the UK issued PR?
| Rolfus wrote: | This Directive harmonises Permanent Residence after 5 years, which is potentially very useful for non-EEA nationals. As always there are difficulties with transposition into national legislation, and the UK, Ireland and Denmark have specifically opted out.
National legislation in the countries I have looked at says you lose Permanent Residence status after two years absence from the country. This is consistent with Directive 2004/58/EC (The Citizens Directive) | Quote: | DIRECTIVE 2004/58/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL
of 29 April 2004
Article 16
4. Once acquired, the right of permanent residence shall be lost only through absence from the host Member State for a period exceeding two consecutive years.
|
But it is very different from Directive 2003/109/EC
| Quote: | COUNCIL DIRECTIVE 2003/109/EC
of 25 November 2003
concerning the status of third-country nationals who are long-term residents
Article 9
Withdrawal or loss of status
1. Long-term residents shall no longer be entitled to maintain long-term resident status in the following cases:
(a) [[ fraudulent acquisition ]
(b) [ expulsion;]
(c) in the event of absence from the territory of the Community for a period of 12 consecutive months.
2. By way of derogation from paragraph 1(c), Member States may provide that absences exceeding 12 consecutive months or for specific or exceptional reasons shall not entail withdrawal or loss of status.
3. [threat to public]
4. The long-term resident who has resided in another Member State in accordance with Chapter III shall no longer be entitled to maintain his/her long-term resident status acquired in the first Member State when such a status is granted in another Member State pursuant to Article 23. In any case after six years of absence from the territory of the Member State that granted long-term resident status the person concerned shall no longer be entitled to maintain his/her long term resident status in the said Member State.
By way of derogation from the second subparagraph the Member State concerned may provide that for specific reasons the long-term resident shall maintain his/her status in the said Member State in case of absences for a period exceeding six years.
5. With regard to the cases referred to in paragraph 1(c) and in paragraph 4, Member States who have granted the status shall provide for a facilitated procedure for the re-acquisition of long-term resident status.
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Does anyone understand what has happened in European Law? |
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Obie
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| Posted: Fri Dec 10, 2010 10:19 pm Post subject: |
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These two separate piece of legislation applies to 2 categories of people. EEA nationals, and Non EEA nationals who have lived lawfully in another member state other that UK, Ireland and Denmark for 5 years and acquired this status.
I don't see much justification for contrasting or comparing this two distinctive legislation.
It certainly would have been nice if the UK had adopted that legislation. Then again giving the UK's track record, they will not, would they.
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Rolfus
Member of Standing
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Posts: 160
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| Posted: Fri Dec 10, 2010 10:41 pm Post subject: |
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So we have
"COUNCIL DIRECTIVE 2003/109/EC of 25 November 2003 concerning the status of third-country nationals who are long-term residents"
and
"DIRECTIVE 2004/38/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States"
(incidentally the mis-print between 2004/38 and 2004/58 seems to originate in the Official Journal of the European Union 29.6.2004).
If a third country national has acquired long-term resident status by virtue of being a family member of a Union Citizen, he or she is surely the subject of both directives, and so isn't a comparison extremely relevant?
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Rolfus
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| Posted: Fri Dec 10, 2010 10:54 pm Post subject: |
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To understand how this directive is implemented in practice, I suggest looking at these topics on this forum:
ILR : working in an EU country etc.
the new EU directive 2003/109/EC for third country nationals
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Obie
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| Posted: Sat Dec 11, 2010 12:56 am Post subject: |
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If i understand it properly, a Long term residence status is applied for once someone has resided lawfully in a member state for 5 years.
A family member of a Union citizen automatically acquires PR after 5 years of residence with the Union Citizen.
A long term residence status will allow someone to move to and reside another memberstate which is a party to the directive but a PR doesn't.
A family member of a Union Citizen who has lived in a memberstate in which this directive applies, can apply for both rights. He cannot use his PR under directive 2004/38EC to move to another member state, however if he cease to reside in the community for up to two year, he/she will maintain their PR, but will loose their long term residence right, and might have to restart the clock again.
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Rolfus
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| Posted: Sat Dec 11, 2010 11:42 am Post subject: |
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Obie, thank you for putting your finger on the key point, which I had missed. Let me attempt a summary:
After 5 years qualifying residence, there is not one, but three kinds of status that are or can be acquired.
First: under the Citizens Directive 2004/38/EC, Permanent Residence is acquired automatically. This status applies to EU Citizens and third party nationals. It removes the requirements of Chapter III ie to be a worker or self sufficient, possess health insurance etc. On request, the host state shall issue a document free of charge attesting to the status of Permanent Residence. This status is lost after two years absence from the host state.
Second: host States may have their own National Legislation providing for permanent residence, indefinite leave to remain etc.
Third: third country nationals may apply for (it is not automatic) long-term resident status, attested to by a residence permit issued by the host state. This is the status which opens the possibility of moving to work in other EU states (always excepting the UK, Ireland and Denmark). This status is transferred to another member state after 5 years in that state, and is only lost after 12 months absence from the EU. There is also supposed to be a facilitated procedure to regain this status if lost.
I suggest that it is very important for third country nationals to know that they need to apply for long term residence permits in addition to either or both of the others. It is very difficult to discern this from the information governments publish.
The Europa summary gives more information, I have also checked this on the web sites of Sweden and the Czech republic. Finally, the Commission is supposed to report on how the Directive has been implemented in January 2011, so we should learn more then.
http://europa.eu/legislation_summaries/justice_freedom_security/free_movement_of_persons_asylum_immigration/l23034_en.htm
| Quote: | The competent authority must take a decision on whether to grant long-term resident status no more than six months after the application is lodged.
The provisions of the Directive do not prevent Member States from issuing permanent residence permits on terms that are more favourable than those set out in the Directive. Nevertheless, such residence permits do not confer the right of residence in the other Member States.
The Member States must take the necessary measures to implement this Directive by 23 January 2006 at the latest. No more than five years after that date, the Commission will report to the European Parliament and Council on implementation, proposing such amendments as may be necessary. |
http://www.migrationsverket.se/info/586_en.html
| Quote: | Status as long-term resident
If you have held a residence permit in Sweden for five years, as well as long-term resident status in another EU country, you can obtain the status of long-term resident in Sweden. For more information, please read the Swedish Migration Board's website under the heading of Long-term Resident in Sweden. |
But that page doesn’t exist
Application form requires: copy of a EC residence permit which proves that you are a long-term resident of another EU country (does not apply to citizens of Switzerland)
http://www.mvcr.cz/mvcren/article/entry-stay-and-permanent-residence-in-the-czech-republic-third-country-nationals.aspx?q=Y2hudW09NQ%3d%3d
| Quote: | The conditions and required items for the issuance of a long-term residence permit to a third- country national who holds a permanent residence permit together with the legal status of a long-term resident of the European Communities for the territory of another European Union Member State are defined in Sections 42c of the Alien Act.
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MelC
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Posts: 214
Location: North Africa/EU/UK
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| Posted: Sun Dec 12, 2010 5:12 pm Post subject: |
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| Obie wrote: | These two separate piece of legislation applies to 2 categories of people. EEA nationals, and Non EEA nationals who have lived lawfully in another member state other that UK, Ireland and Denmark for 5 years and acquired this status.
I don't see much justification for contrasting or comparing this two distinctive legislation.
It certainly would have been nice if the UK had adopted that legislation. Then again giving the UK's track record, they will not, would they. |
I thought the 2 categories were third country nationals and third country family members?
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Rolfus
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| Posted: Sun Dec 12, 2010 6:13 pm Post subject: |
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As far as I can see, 2003/109/EC applies to all third country nationals who have been legally and continuously resident resident in one EU state for 5 years. They might be resident as family members, or with work permits, or in another category. 5 years is the point at which they acquire rights by virtue of residence. For example someone residing as an extended family member for 5 years will from that point have residence rights in their own name and can move to a different country without the extended family member who originally sponsored them. But you have to make an application.
2004/38/EC automatically grants rights (but not the same rights) after 5 years residence to all the beneficiaries: Union citizens who have moved, their family members and their other family members. But it does not apply to third country nationals on work permits or other immigration categories.
National legislation is interesting mainly in that the implementation of EU law is often achieved by integrating with existing national legislation, and provisions such as language competence are introduced. 2003/109/EC contains this Article
| Quote: | Article 13
More favourable national provisions
Member States may issue residence permits of permanent or unlimited validity on terms that are more favourable than those laid down by this Directive. Such residence permits shall not confer the right of residence in the other Member States as provided by Chapter III of this Directive. |
So if the third party national gets such a residence permit, he still needs to apply for the long term residence permit to be able to benefit from the freedom of movement provisions.
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Rolfus
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| Posted: Sun Dec 12, 2010 8:19 pm Post subject: |
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I have found a document in English that explains how this is implemented in the Czech Republic. Look at 2.2.1 and 2.2.2 on pages 33 & 34.
[url]ec.europa.eu/ewsi/UDRW/images/items/docl_10608_265167021.pdf[/url]
This is how they deal with the issue of long-term residence on the back of the permanent residence permit defined in National Legislation, and that encompasses the 2004/38/EC rights.
| Quote: | | Denotation of legal status of the EC resident: The Police denotes „permanent residence permit for longterm resident – EC“ into the permanent residence permit card. |
It would be very interesting to see a similar document for other states.
Another very interesting right that derives from long term resident status:
| Quote: | | professional training recognition upon the same conditions that apply to EU citizens (according to the Act No.18/2004 about professional training and other skill recognition for the EU citizens) |
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Rolfus
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| Posted: Sat Jan 01, 2011 3:33 pm Post subject: Professional qualifications |
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For anyone interested in recognition of professional qualifications, look at http://ec.europa.eu/internal_market/qualifications/future_en.htm and follow the link to Documents of a general Nature, FAQs
| Quote: | 8. APPLICATION OF DIRECTIVE 2005/36/EC TO THIRD COUNTRY CITIZENS AND
TO REFUGEES
Community rules on the recognition of professional qualifications (including rules on the
recognition of third country qualifications) are applicable to third country citizens
fulfilling the requirements of Directive 2004/38/EC on the right of citizens of the Union
and their family members to move and reside freely within the territory of the Member
States (i.e. persons being family member of an EU citizen who is exercising his right to
free movement within the EU). Similarly, community rules on the recognition of
professional qualifications apply in the Member State where a migrant has obtained the
statute of long term resident. However, the rights of long-term residents are more limited
than the rights of family members of EU citizens. Indeed, the relevant Directive,
Directive 2003/109/EC on the status of third-country nationals who are long-term
residents, does not apply in the United Kingdom, Ireland and Denmark. Moreover, this
Directive only covers permanent establishment and not temporary provisions of services. |
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Rolfus
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Rolfus
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exoticbeauty
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| Posted: Mon Dec 05, 2011 7:42 pm Post subject: |
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Hello
I am a non eu citizen(russian).holding Long term residence (the small pink card)issued by Romanian Goverment after living here for over 5 years(was married,family member of romanian,divorced now and also changed my permit after divorce,did not lose the long term status),can i visit Germany for a few days without visa? |
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Rolfus
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| Posted: Mon Dec 05, 2011 8:07 pm Post subject: |
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For a short visit there should be no problem Lots is posted on this thread | Quote: | | http://www.immigrationboards.com/viewtopic.php?t=14981 |
With your long term visa you should also be able to move to Germany and work there.
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John
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| Posted: Mon Dec 05, 2011 9:35 pm Post subject: |
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Does anyone know how the UK has incorporated Directive 2003/109/EC into UK law? What Statutory Instrument?
Also, how does someone go about making an application under Directive 2003/109/EC in the UK?
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mastermind
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| Posted: Mon Dec 05, 2011 10:10 pm Post subject: |
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| John wrote: | | Does anyone know how the UK has incorporated Directive 2003/109/EC into UK law? What Statutory Instrument? |
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:32003L0109:EN:HTML
| Quote: | | (25) In accordance with Articles 1 and 2 of the Protocol on the position of the United Kingdom and Ireland, annexed to the Treaty on European Union and to the Treaty establishing the European Community, and without prejudice to Article 4 of the said Protocol, these Member States are not participating in the adoption of this Directive and are not bound by or subject to its application. |
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Rolfus
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| Posted: Fri Feb 17, 2012 10:37 pm Post subject: |
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My non-EEA partner became eligible for permanent residence in the Czech Republic so we wanted long-term EEA residence at the same time.
Our normally very efficient agency who deal with residence issues was completely unaware of this option. It took about 5 e-mails explaining the law before they managed to get confirmation from the Czech authorities that the status did indeed exist. Papers have to be submitted to the foreign police, and on the day the lady behind the table had no idea what we were talking about. But after being shown the law in Czech a phone call to her supervisor confirmed that it was possible. But of course more documents are required. Nothing too onerous. A new appointment in a week's time...will keep you all posted!
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moroni
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| Posted: Sat Feb 18, 2012 8:11 pm Post subject: |
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| Rolfus wrote: | My non-EEA partner became eligible for permanent residence in the Czech Republic so we wanted long-term EEA residence at the same time.
Our normally very efficient agency who deal with residence issues was completely unaware of this option. It took about 5 e-mails explaining the law before they managed to get confirmation from the Czech authorities that the status did indeed exist. Papers have to be submitted to the foreign police, and on the day the lady behind the table had no idea what we were talking about. But after being shown the law in Czech a phone call to her supervisor confirmed that it was possible. But of course more documents are required. Nothing too onerous. A new appointment in a week's time...will keep you all posted! |
First, I assume you are not Czech, since you are using an agency to deal with the bureaucracy here.
If so, is your partner living here as family member of an EU Citizen?
In the PDF you linked before says:
| Quote: | | NOTE If you are granted status of an EU citizen family member you do not have the right to apply for a long-term EU resident status. It is not possible to cumulate types of status when each of them brings certain advantages. |
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Rolfus
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| Posted: Sat Feb 18, 2012 8:57 pm Post subject: |
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Dear Moroni, you raise a completely valid point.
For others trying to follow this we are referring to this PDF:
[url]ec.europa.eu/ewsi/UDRW/images/items/docl_10608_265167021.pdf[/url]
You are referring to the preamble to chapter 3, I think. I agree, and my agency insisted, that on the face of it this prohibits getting permanent resident status for my partner who is indeed a family member of an EU citizen.
But that would be contradictory to the paragraph 2.2.1
What I suspect they are saying is that when you apply for permanent residence after five years, that is your status, and you are no longer viewed as being a family member of an EEA citizen.
But it certainly shows what a muddle all this is!
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