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EUROPEAN UNION

How long do non-EU citizens have to be present in EU to avoid losing residency status?

How long do non-EU citizens have to be present in the European Union to make sure they don’t lose the status of long-term resident? For the first time the Court of Justice of the European Union has given an answer. 

A banner publicising the 'Next Generation EU' campaign and with an EU flag
A banner publicising the 'Next Generation EU' campaign and with an EU flag fluttering near by at the European Commission headquarters, in Brussels on October 13, 2021. (Photo by Aris Oikonomou / AFP)

Being physically present in the EU for a few days in a 12-month period is enough to avoid losing permanent residency, EU judges said.

And 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 has specified. 

What’s the background?

Under the EU directive entered into force in 2006, non-EU citizens can apply for long-term resident status once they have lived legally in a country of the European Union for an uninterrupted period of five years. 

To get 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 fundamental principles of the country. 

Once acquired, long-term residence grants rights similar to EU citizens in terms or work, education, social security and other welfare benefits. In addition, it should make it easier to move for work or study to other EU countries, although there are still many gaps in the way the directive is applied at the national level.

The status can also be lost if the person concerned is absent from the EU for 12 consecutive months (EU countries can allow longer periods or consider exceptional circumstances). 

But what counts as presence to break the 12-month period and maintain the status? The initial directive did not specify it and only on Thursday the EU Court of Justice provided a clarification. 

Why was the clarification needed?

The case was related to a Kazakh citizen living in Austria. The head of government of the Vienna Province (Landeshauptmann von Wien) had refused his application to renew the long-term residence permit because, in the previous 5 years, he had been present in the EU territory for only a few days a year. 

He then challenged the decision with the local administrative court (Verwaltungsgericht), requesting an interpretation of the rules to the Court of Justice of the EU. 

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

And what was the ruling?

The EU Court of Justice ruled this week 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. 

This interpretation of the directive will now have to be followed by national administrations and courts EU-wide (except in Denmark and Ireland, which have opted out from this directive. It is possible for EU countries to opt out from EU directives on justice and home affairs but not on the internal market.)

The EU judges noted 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” without losing their status. The rule applies as long as they maintain a link with the EU, which means they are not absent for more than 12 consecutive months, the Court added. 

Steve Peers, professor of EU law, human rights law and world trade law at the University of Essex, in England, said “this is the first judgment on this aspect of the loss of status due to absence.”

Loss of EU status doesn’t mean loss of national residency

Professor Peers also explained that when a person loses EU long-term residency status, it is still possible to maintain national status, “either 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 even though they have lost the EU status.”

Of the 23 million non-EU citizens living in the European Union, more than 10 million had long-term residence in 2019, according to the EU statistical office Eurostat.

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

And what about for Britons covered by Withdrawal Agreement?

According to legal experts, the Court’s decision would also extend to people covered by the agreement on the UK withdrawal from the European Union. 

While the period of absences accepted for long-term residents is up to 12 months, however, under the Brexit agreement it is up to 5 years for those covered by the Withdrawal Agreement. 

“If the judgment applies by analogy, then it should follow that it should be adapted to the period of absence. So a few days in every five years,” Professor Peers said. But then he added: “Of course no one should act on this assumption until the EU court has confirmed it.” 

The article is published in cooperation with Europe Street News, a news outlet about citizens’ rights in the EU and the UK.

Member comments

  1. Hi
    Could you please explain how the T.I.E works and what it would enable me to do. In the past I had Residencia for 7 years. I own property in England and Spain and would like to know if my T.I.E card could be used just like an EU passport.
    Regards
    Andrew Wilson

  2. Hi,
    Has anyone tried going for the higher cost fibre broadband including calls? I am interested so looked at the list of 101 destinations for unlimited calls. The United Kingdom (under any name) is not listed but the footnote (2) against Sweden says that you cannot make UK calls to 44870 numbers! I guess this is a proofing error but does anyone know?

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RESIDENCY PERMITS

Denmark could make change to permanent residency employment rule

New Danish Minister for Immigration and Integration Kaare Dybvad Bek says he wants to change one of the criteria for permanent residency in Denmark.

Denmark could make change to permanent residency employment rule

In an interview with newspaper Politiken on Thursday, Bek said that people on paid internships should enable nationals of non-EU countries to meet the overall criteria for permanent residency.

Bek told Politiken he wanted to “tidy up things that make no sense” in permanent residency rules.

He also told the newspaper he wanted Denmark’s immigration rules to be “tight, but not crazy”.

Specifically, the minister said paid internships and trainee programs should count toward the work requirement — applicants for permanent residency must have worked for at least three years and six months of the previous four years.

Before 2016, education could also be used to satisfy the work requirement. Bek is not keen to restore that particular policy, telling Politiken that working people should considered first.

“We believe that people become well integrated by being at a place of work. That could be having responsibility for senior citizens, a checkout at Netto or laying bricks. By being around colleagues every single day you will get a very good idea of what Danish society is generally about,” Bek said to Politiken.

No specific detail was given as to specific sectors which might be encompassed by a change in the rules. But students or interns who are paid for positions with companies could benefit, according to the report.

Bek named social care workers and construction site apprentices as possible examples of jobs that could be accounted for.

Danish permanent residence rules were changed in 2016 under the previous centre-right government.

Prior to the 2016 change, education counted as employment in a requirement stating a person must have been employed for three and a half of the last four years in order to meet permanent residency criteria.

After 2016, any time spent in education does not count towards the employment criteria.

Bek’s Social Democratic party, then in opposition, supported the change.

READ ALSO: OPINION: Denmark must treat international students equally on permanent residency

The new immigration minister denied he would roll back the 2016 changes in their entirety and said people working should be given priority over students.

He also stressed to Politiken that the government had no plans to ease immigration rules but had always held the same position with regard to internships and residency rules.

Permanent residence means that a person is allowed to stay in Denmark and does not need to apply for residence again. 

EU, EEA and Swiss citizens have the right to apply for permanent residency when they have lived in Denmark for at least five consecutive years. Once it is granted, the holder can live in Denmark without having to meet the original requirements of their temporary EU residency (i.e. being employed, self-employed, a student, or through having sufficient funds). 

Non-EU citizens can be granted permanent residence once they have had a temporary residence permit for eight uninterrupted years (in some cases four).

There are certain requirements for the previous temporary residence, however. These include current employment, and paid internships do not fulfil this employment requirement currently.

READ ALSO: What’s the difference between getting Danish citizenship and becoming a permanent resident?

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