Residents of all over the place? The CJEU guidelines on lack of immigration standing attributable to absence from the territory

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Professor Steve Peers,
University of Essex

Immigration status is often lost
due to a certain period of absence from the territory of the country which
granted it. But what if that absence is briefly interrupted? The CJEU addressed
that issue in a recent judgment
concerning non-EU citizens with EU long-term resident status – which may also
be relevant to those covered by EU free movement law and the Brexit withdrawal
agreement.

Background

The recent judgment interpreted
the EU’s long-term
residence (LTR) directive
, adopted back in 2003
and amended in 2011
to include refugees and people with subsidiary protection, which the Commission
plans
to propose amendments to
in April. Ireland, Denmark, and the UK (when a Member
State) opted out of the legislation – although the Directive is now relevant to
British citizens as non-EU citizens (I previously discussed its application to
UK citizens here).

After five years’ legal
residence, the Directive provides that non-EU citizens can apply for long-term
residence status in a Member State, subject to meeting certain conditions,
which guarantees them a degree of equal treatment, a modest facilitation of the
prospect of moving to another Member State (falling short of free movement
law), and some protection against expulsion. The Directive exists alongside
national forms of permanent residence, so not all those eligible for it will
have it: some will have the purely national version.

Once obtained, how can EU
long-term residence status be lost? Article 9 of the Directive provides that it
is lost or withdrawn due to fraud, expulsion, or ‘in the event of absence from
the territory of the Community for a
period of 12 consecutive months’ (emphasis added). Member
States may provide that ‘absences
exceeding 12 consecutive months or for specific or exceptional reasons’ do not
lead to loss or withdrawal. They may also remove the status where there is a ‘threat
to public policy’ due to serious offences, falling short of the threshold for
expulsion. LTR status from one Member State is also lost once it is obtained
after gaining it from another Member State after residing there.

There is a second provision on
absence, providing that LTR status is lost after six years’ absence from the Member State that granted it – although a
Member State may provide that the
status is nevertheless retained ‘for specific reasons’. (This appears to be
limited to cases where the LTR status holder moved to another Member State). As
regards both of the rules on absences, Member States ‘shall provide for a
facilitated procedure for the re-acquisition of long-term resident status’,
which ‘shall apply in particular to the cases of persons that have resided in a
second Member State on grounds of pursuit of studies’. However, the conditions
and procedure for re-acquiring this status ‘shall be determined by national law’.

Finally, LTR status cannot be
lost solely due to the expiry of an LTR residence permit, and if the loss of
LTR status does not lead to removal, ‘the Member State shall authorise the
person concerned to remain in its territory if he/she fulfils the conditions
provided for in its national legislation and/or if he/she does not constitute a
threat to public policy or public security’.

The CJEU judgment

The recent judgment concerned a
Kazakh citizen with LTR status from Austria. He applied for renewal of his
permit in 2018, but the Austrian authorities turned his application down in
2019 because, for the five-year period between August 2013 and August 2018, he
had only spent a few days each year within the EU. He argued that the ‘absence’
exception must be interpreted strictly, so that a return to the EU territory
for only a few days within each year was sufficient to interrupt the break, and
justify the continuation of his LTR status. In his view, it was not necessary
to show that he was ‘physically established’ or had his ‘habitual residence’ in
the territory. The national court (the Administrative Court of Vienna) was
sympathetic to this interpretation, but asked the CJEU questions to confirm it.

In the Court’s view, in the
absence of any reference to the national law of Member States, the concept of ‘absence’
had to be ‘regarded as an autonomous concept of EU law and interpreted
uniformly throughout the European Union…taking into account the wording of that
provision, its context, and the purpose of the rules of which it forms part’.

Starting with the wording of the
clause, most language versions used a term ‘equivalent’ to ‘absence’. The Court
noted that ‘the usual meaning of that term in everyday language’ was ‘the
physical ‘non-presence’ of the long-term resident concerned in the territory’
of the EU; hence ‘any physical presence of the person concerned in that
territory is capable of interrupting such an absence’. Although the German and
Dutch language versions of the Directive used words which implied instead ‘staying
or remaining’ on EU territory, ‘and could therefore, depending on the context,
imply a more permanent presence than a physical presence of any duration’,
those words could also refer to ‘a
mere physical non-presence’; and other
parts of the German and Dutch language versions of Article 9 did use words ‘which correspond to the
concept of ‘absence’’.

Secondly, the context of the
Directive provided for the permanence of LTR status, ‘subject to
Article 9’. So permanent LTR status was ‘the general rule’, and Article 9
was a ‘derogation’ which must be interpreted ‘strictly’. This ‘suggests that
there should not be a broad interpretation of Article 9’, ie it is should
not be interpreted to mean that ‘mere physical presence’ was insufficient to
interrupt absence from the EU.

Also, the rule on acquisition of LTR status expressly ‘requires
the presence of the person concerned in the relevant territory to go beyond a
mere physical presence and that it be of a certain duration or have a certain
stability’ – ie to ‘reside…legally and continuously for five years immediately
prior to the submission of [his or her] application, subject to the periods of
absence permitted under Article 4(3) of that directive.’ Details like this
are lacking in the provision on loss of status, which ‘in particular’ does not
say that ‘the presence of the person concerned in that territory must be of a
certain duration or have a certain stability such as’ having ‘his or her
habitual residence or centre of interests in that territory’. Nor are there ‘any
other conditions relating to the duration or nature of that presence’, such as ‘an
‘actual and authentic link’ with respect to the same territory’, like ‘family
members or assets’.

Finally, as for the objective of
the Directive, the preamble stated that it aimed at integration of long-term
resident non-EU citizens into the territory of the EU, by bringing their status
closer to that of EU citizens and ‘establishing equal treatment with the latter
in a wide range of economic and social fields’. This supported an
interpretation of Article 9 to mean that those who have demonstrated they are
sufficiently ‘settled’ to obtain LTR status ‘are, in principle, free, as are EU
citizens, to travel and reside, also for longer periods, outside the territory
of the European Union, without that thereby entailing the loss of their
long-term resident status’, subject to not being absent for 12 consecutive
months.

Also, the objective of legal
certainty – which the preamble refers to as regards procedural rights – must
also apply to the issue of loss of the status (referring to the Commission’s proposal,
which stated that the sole grounds of losing LTR status should be listed in the
proposal). The Court’s interpretation best met the objective of legal certainty,
as the ‘maintenance of’ LTR status was ‘dependent on a clear, precise and
predictable criterion relating to a simple objective event’.

Finally, the purpose of the
absence rule was to prevent non-EU citizens from keeping LTR status where it no
longer served any purpose in achieving the objective of integration.  It referred to the purpose of the parallel
clause on the loss of permanent residence status under EU free movement law, ie
justification for that loss because ‘the link with the host Member State is
loosened’.  Although the free movement
Directive and the long-term residence Directive

…differ from
one another in terms of their subject matter and objectives, the fact remains
that, as the Advocate General also pointed out, in essence, in points 40
to 43 of his Opinion, the provisions of those directives may lend themselves to
a comparative analysis and, where appropriate, be interpreted in a similar way,
which is justified, in particular in the case of [the provisions on loss due to
absence], which are based on the same logic. [para 43]

It followed that the link is
loosened only after an absence for 12 consecutive months; and to interrupt that
absence, ‘it is sufficient for the long-term national concerned to be present…in
the territory of the European Union, even if such presence does not exceed a few
days’. This must, however, ‘be distinguished from the situation where there is
evidence that such a resident has committed a misuse of rights’, although there
was no evidence of such a misuse in this case.

Comments

The Court’s reasoning in this
judgment is largely convincing. Its approach to interpreting the wording of the
law is consistent with prior judgments, as regards a uniform interpretation
under EU law in the absence of a reference to national law, and siding with the
majority of language versions – and furthermore, as the Court points out, the
German and Dutch language versions do not unambiguously suggest the opposite
interpretation either. As for the context of the law, both the ‘interpret the
rule widely/interpret derogations strictly’ approach and the a contrario approach (where the drafters
wanted to specify there were requirements beyond mere presence on the territory,
they expressly did so) are consistent with the Court’s usual canons of
interpretation.

On the other hand, its analysis
as regards the objective of the Directive is less persuasive. It starts out by
referring to the objective of integration, which may point to the opposite
interpretation to that which the Court reaches: can it easily be argued that a
non-EU citizen who spends only a few days a year on EU territory for a
five-year period is still integrated into a Member State’s territory? The Court
narrowly avoids painting itself into this corner by framing integration as a
form of equality with Member States’ citizens, who can come and go as they
please without losing citizenship. But in fact some Member States do withdraw their nationality – and therefore
EU citizenship – due to absence, in combination with other factors, and the
Court has even ruled
on that issue. The comparison with EU free movement law isn’t too convincing, because
the Court has not yet ruled on the interruption of absence point in that
context. And while the legal certainty point is convincing as far as it goes,
it is undercut both by the Court’s lack of clarity on what a ‘few days’
interruption of absence means exactly, and by its creation of a ‘misuse of
rights’ exception, which it does not define further except to assert that the
exception does not seem to apply in this case.

Are these two points the same –
ie a yearly dash through Schiphol airport in transit between Heathrow and New
York does not count as interruption of absence? If so, the rule must be further
explained. Or are they, as it appears, two different rules? If so, those two rules need to be explained further.

As for the implications of the
judgment, it is first and foremost surely logical that this judgment applies to
the second method of losing LTR
status due to absence, ie by six years’ absence from the Member State that
granted the status. It would be very odd to interpret an essentially identical
concept appearing in the same Article of the same Directive differently. The
judgment also strongly implies that the grounds of loss of status are
exhaustive, and that the other grounds for loss of status should be interpreted
narrowly. (However, note that in a previous judgment
the Court interpreted the ‘fraud’ ground for loss of status broadly, ie it was
lost even when the non-EU citizen concerned had not personally committed that
fraud). The judgment is not relevant
by analogy to periods of absence while accruing the initial five years’ legal
residence to obtain an LTR permit, because there is a more specific rule
applicable there.

Going outside the LTR Directive,
the Court’s judgment explicitly suggests that the rules on absence in free
movement law
must be interpreted the same way – ie ‘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.’ Due to its close
links with free movement law, it is arguable that the absence clause in the
Brexit withdrawal
agreement
should also be interpreted this way (‘Once acquired, the right of
permanent residence shall be lost only through absence from the host State for
a period exceeding 5 consecutive years.’)

 

Barnard & Peers: chapter 26

Photo credit: Uri Baruchin, via wikicommons

 

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