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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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HEALTH

More pay and longer holidays: How Austria hopes to attract 75,000 new nurses

The Federal Government unveiled a package looking to attract more than 75,000 new workers to the nursing and care professions - including people from abroad.

More pay and longer holidays: How Austria hopes to attract 75,000 new nurses

Austria has unveiled a €1 billion reform package to improve working conditions for health sector professionals.

In a press release this Thursday, Health Minister Johannes Rauch (Greens) said that the package would include higher salaries for nurses.

“There will be massive measures to make the nursing profession more attractive”, the minister said.

For 2022 and 2023, the government will offer a total of €520 million as a monthly salary bonus for the professionals, Rauch said. This should last initially for at least two years until other measures start taking effect.

Training for the career will also receive investments, according to the minister. There will be a federal training subsidy of at least €600 per month.

In addition, a nursing scholarship for those switching (or switching back) to the nursing profession of up to €1,400 will be funded by the Austrian Employment Agency AMS.

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As a measure to protect workers and keep them from turning to other professions, the government explained that all those older than 43 years old will receive an extra week of paid holidays. Additionally, all employees in inpatient long-term care will receive two hours of time credit per night shift.

​​Among the more than 20 measures that the Ministry will detail in the coming days are steps to increase help for those in need of care and of relatives that care for their families, according to the statements given in the press release.

Caring relatives will receive a family bonus of €1,500 per year if they provide most of the care at home and are themselves insured or co-insured. The employment in 24-hour care is also to be “made more attractive” – but details are still pending.

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The government is also turning outside of Austria and the European Union to attract more professionals.

In the future, nurses who complete vocational training will receive “significantly more” points in the process to access the so-called Rot Weiss Rot (RWR) residence permit. They will also increase the points given for older professionals, facilitating the entry of nurses from 40 to 50 years old.

RWR applicants need to reach a certain threshold of points based on criteria including age and education to get the permit.

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The recognition of training acquired abroad will be significantly simplified, accelerated and debureaucratised, the government promises. And nurses will be able to work as nursing assistants until the formal recognition of their foreign qualifications is completed.

Long-needed reform

“People in care work have long deserved these improvements”, Rauch said.

The government expects the package to create more than 75,000 new workers to fill the thousands of open positions in the sector by 2030.

Green Party leader Sigrid Maurer stated that the measures will be an essential step towards gender equality. “After all, it is mainly women who work in the care professions, especially taking care of relatives at home”.

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The government announcement comes as several protests are scheduled to take place throughout Austria this Thursday, which is also Tag der Pflege (Day of Care).

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“We have been calling for better conditions and better pay for years. Thousands of beds are now empty because we don’t have enough staff. In Styria, about 3,000 of a total of 13,000 beds in the nursing sector are currently closed,” Beatrix Eiletz, head of the works council of Styrian Volkshilfe told the daily Der Standard.

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It is not uncommon that nurses will quit their jobs and move to completely different professions, thereby increasing the gap, the report added.

The problem is an old one in Austria – but it has been exacerbated by the coronavirus pandemic.

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