REGINE Regularisations in Europe Final Report - European ...

1.3 Freedom of movement rights and protection of residence status of
third country nationals under European Community legislation
There are some important categories of non-nationals for which the above typology of
illegality/irregularity does not apply, or applies only in a very limited sense. These are: third country
nationals holding the EU long-term residence status 17 and third country nationals who are family
members of EU nationals.
Third country nationals who are long-term residents of a Member State, that is third country nationals
who legally and continuously resided within the territory of a Member State for five years and have
been granted long-term residence status according to Directive 2003/109/EC, enjoy more or less
unrestricted freedom of movement and far-reaching protection from expulsion and withdrawal of
residence status. Not only do long-term residents enjoy full access to Member States’ labour markets,
but additionally their failure to meet certain conditions (e.g. lack of means, or engaging in undeclared
work) may not lead to withdrawal of the status and a consequent move into illegality. As in the case
of EU citizens, freedom of movement rights may be waived only on major grounds of public policy,
public security and public health. 18
A second category of third country nationals, which enjoys substantial residence rights and hence farreaching
protection from expulsion under EU legislation, is that of family members of EU nationals
who have exercised freedom of movement rights. 19 Under the directive, the powers of Member States
to waive freedom of movement rights is limited to major grounds of public policy, public security and
public health. Under Article 28 of Directive 2004/38/EC, Member States’ power to initiate removal
procedures against EU citizens and their family members are not only limited to serious grounds of
public policy and security, but the scope for enforcement measures should “be limited in accordance
with the principle of proportionality to take account of the degree of integration of the persons
concerned, the length of their residence in the host Member State, their age, state of health, family and
economic situation and the links with their country of origin.” 20 Thus, neither lack of means,
unemployment nor engagement in undeclared work may lead automatically to termination of
residence and consequent illegal stay.
However, third country nationals who are not long-term residents enjoy limited protection from
expulsion under EU legislation and also under the European Convention of Human Rights (ECHR).
By implication, third country nationals staying less than five years but enjoying certain protection
17 In the meaning of Council Directive 2003/109/EC of 25 November 2003 concerning the status of third
country nationals who are long-term residents.
18 See also 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 for the definition of freedom of movement rights of EU nationals and their family members, from which
freedom of movement rights granted under Directive 2003/109/EC are derived.
19 Directive 2004/38/EC. The personal scope of the directive is restricted to EU citizens who use mobility rights
and their family members (emphasis added). This excludes EU nationals who reside in their country of
citizenship and their (third country national) family members, unless (1) the EU national has previously resided
in another Member State; (2) the family unit already existed at that time; and (3) the EU national in question and
his/her family members have thus acquired freedom of movement rights under the directive. Indeed, in several
Member States family reunification rights of nationals are more restricted than those of EU nationals (on the
beneficiaries of the rights awarded under the directive see Article 3, passim).
20 Preamble, para 23, Directive 2004/38/EC.
5