By Mark Sultana – International Private Clients Consultant
Will a third-country national lose his or her long-term residence status if his or her presence in the territory of the European Union is only limited to a few days?
Under EU Law, any third-country national who has been living in an EU Member State is entitled to be granted the status of long-term residence. This status is regulated by Council Directive 2003/109 which sets out the basic principles of such status. Since it is a Directive and not a Regulation, in 2006, the Maltese Government enacted Subsidiary Legislation 217.05 to implement the provisions of this Directive. Therefore, since it now forms part of Maltese Law, the Status of Long-Term Residents (Third County Nationals) Regulations regulates (a) terms for conferring and withdrawing long-term resident status granted in relation to third-country nationals who are legally residing in Malta and the rights pertaining thereto and (b) it also regulated the terms of residence in Malta of third-country nationals who were conferred the status of a long-term resident by another Member State.
The aim of the Directive/Maltese Law is to ensure that non-EU nationals who have lived in an EU country or in Malta for a minimum of five (5) years will have a permanent and secure residence status. It also ensures to grant these non-EU nationals equal rights to those enjoyed by EU citizens. Furthermore, it makes it easier for these non-EU nationals to move to other EU countries to work and study.
However, like any other law, the long-term residence status regulations also provide for situations when the holder will lose the status or when such status will be withdrawn. Article 9 of Subsidiary Legislation 217.05 lays down those circumstances under which a long-term resident shall lose his/her long-term residence status. One of the instances where the long-term residence status may be lost is when “the long-term resident is absent from the territory of the European Union for a period of twelve consecutive months”.
Nevertheless, on the 20th January 2022 the Court of Justice of the European Union (CJEU) has clarified this matter since it was requested by the Austrian Administrative Court to interpret the directive to ascertain whether the physical presence of the person concerned in the territory of the EU during a period of 12 consecutive months, even if such a presence does not exceed, during that period, a total duration of a few days only, is sufficient to prevent the loss of long-term resident status, or whether the Member States may set additional conditions such as the condition of having had, during at least part of the relevant period of 12 consecutive months, his or her habitual residence or center of interests in that territory.
In its preliminary ruling the Court of Justice stated that except in the event of abuse, it is satisfactory, to avoid the loss of long-term resident status, for the person concerned to be present, during the period of 12 uninterrupted months following the start of his or her absence, in the territory of the European Union, even if such a presence does not exceed a few days in total. The Court contended that both the wording and context of the provision in question and the objective pursued by the directive support such an understanding. Once long-term resident status is acquired after a period of at least 5 years, those nationals are eligible to the same rights as EU citizens as regards, inter alia, education and vocational training, social security, tax benefits and access to procedures for obtaining housing.
Moreover, the objective supports an interpretation to the effect that third-country nationals who have already proved that they are settled in that Member State, 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, provided that they are not absent from that territory for a period of 12 consecutive months.
This means that the interpretation which was adopted by the Court of Justice can guarantee the persons concerned an adequate level of legal certainty when it comes to interpret Article 9 (1) (c) of the Status of Long-Term Residents (Third Country Nationals) Regulations.