4, Rue de Pascale, B-1040 Bruxelles
174, Rue Joseph II, B-1000 Bruxelles
Boltzmanngasse 14, A-1090 Wien
Rue De Pascale, B-1040 Bruxelles
Haachtsesteenweg, B-1210 Brussel
50, Square Ambiorix,
COUNCIL DIRECTIVE concerning the
status of third country nationals who are
above-named organisations represent Christian churches throughout Europe, Roman
Catholic, Orthodox, Protestant, Anglican and Quaker, as well as church agencies
particularly concerned with migrants and refugees.
Churches and church agencies are involved in a variety of programmes aiming at the integration of migrants in our communities and societies. Against the background of this experience, as well as out of a deep commitment to the dignity of the human individual, we should like to make the following comments.
We welcome the European Commission’s
proposal as it is based on the objective of allowing real integration of third
country nationals into our societies. The draft directive provides for
far-reaching equal treatment of third country nationals with EU citizens. It
thus reduces the possibilities for discrimination and exclusion. It enhances
the respect of fundamental rights in line with the Charter of Fundamental
Rights of the European Union. Once implemented, it will make the legal
situation of foreigners more transparent and give them legal certainty, thus
encouraging them to fully participate in the society they live in. In providing
for mechanisms for third-country nationals to equally benefit from free
movement within the territory of the EU, this proposal serves also as a tool to
reduce the feeling of being “second class residents” among many
In a time when migratory movements will be a
constant phenomenon in our society, it will be important that Member States
establish this legal certainty and non-discriminatory approach as soon as
possible, faithful to their commitments at the European Council in Tampere 1999
to ensure fair treatment of third country nationals who reside legally on the
territory of its Member States by granting them rights and obligations
“as near as possible to those enjoyed by EU citizens”.
We particularly welcome that special
attention has been given to legal certainty for family members,
as provided for by Art. 18. In this context, we would like
to re-emphasise that it is utterly important that the European
Commission’s current approach in its proposed directive on family
maintained when it is adopted by the Council of Ministers.
With regard to the question of who qualifies
as a long-term resident, we share the opinion of the Commission that the duration
of stay should be the predominant criterion (Art.
5). Such provisions are foreseen in the majority of
Member States. Legal certainty for a person or a family to have a right to stay
is beneficial to their efforts towards integration. It allows people to invest
their creativity more fully, e.g. in developing self-employed activities or
daring to look for other opportunities where their skills would be better
placed. The attitude of persons in relation to their environment changes when
they are no longer subject to the decisions of others (i.e. the aliens
authorities of the country of residence), and when they can understand
themselves as actors.
We are concerned about a certain number of derogations from the scope of the directive.
While we do not disagree that persons
residing on the basis of temporary protection should
be excluded, we feel that Art. 3 (2) (a) could now
be deleted, as the recently adopted Council directive fixes the maximum time
for temporary protection to a total of three years.
Art. 3 (2) b):
Although we are aware that Member States have not yet harmonised their
legislation regarding subsidiary protection, we
insist that the logic of this directive requires to include them into its
scope. This is common and good practice in the majority of
Member States. The
duration of legal residence being the main criterion for the granting of the
status of long-term resident, according to Art. 5, we cannot see any reason why
people under a subsidiary protection regime should not enjoy the same legal
certainty after they have been legal residents for the given period. To refuse
the status of long-term resident could prove detrimental to further
integration, because these persons would never attain certainty of where they
For the same reason, we object to the
derogations in Art. 3 (2) (b) and (2) (c).
We are of course aware of the dilemma raised by the uncertainty of status of
persons whose asylum claims are not yet finally determined. But after five
years of legal residence, it is unreasonable – and regrettable – if
a final decision has not been taken. In addition, the proposed harmonisation of
asylum procedures ought to lead to an acceleration of asylum examinations. The
number of cases to which this derogation applies should thus be insignificant.
However, the legal status matters a lot to the individual person involved who
has invested five years in integrating into his/her new home.
5 (1): We
regard five years
of legal residence as an adequate requirement, which should however not be
5 (3): We
particularly appreciate that certain periods of absence from the territory shall not interrupt the period
of legal and continuous residence referred to in par. 1. As we outlined in our
Comments on a Community Immigration Policy, being able to travel back and
forth between their country of origin and residence can prove beneficial to
migrants themselves as well as to their country of residence, as such travels
can contribute to strengthen the links between these countries. We also
underline the importance of personal circumstances being taken into account.
While we agree that a certain number of material
conditions must be met as provided for by Art. 6,
we are concerned by the specification in Art. 6 (1) (b).
We do agree that the normal health insurance is required, however, the
terminology "covering all risks" may be problematic. Such
comprehensive insurances are not available to everyone and everywhere, and
increasingly, all risks can only be insured with additional private insurance
schemes. This might lead in some situations to discrimination, which we believe
is not intended. In order to avoid any misunderstanding, we would propose the
terminology “sickness insurance as required by EU citizens”, or
“obligatory health insurance”.
We very much welcome and underline that these
criteria are not applied to refugees as well
as to third-country nationals born in the territory of
a Member State (Art. 6 (2)), as especially the latter
constitutes a great step forward in the context of integration and non-discrimination
of migrants in our society.
Equally, for reasons already outlined above
we are pleased about the option for Member States to extend the allowed period
of absence from their territory for more than two years
under certain conditions which are linked to the individual migrant’s
personal situation (Art. 10 (1) (a)).
We very much welcome the conditions for equal
treatment as provided for by Art. 12,
as this constitutes a major step forward to the establishment of an area of
Freedom, Security and Justice in which every legal inhabitant is treated on an
equal footing. We are especially pleased about the inclusion of study grants in
the list of areas where equal treatment is to be guaranteed.
We would, however, voice one single but
important concern about the total exclusion of the exercise of public
authority, Art. 12 (1) (a).
Although it is understandable that decision about an involvement in the
exercise of public authority is left to the discretion of the individual Member
State, we cannot understand its total exclusion. In several Member States, it
has proven successful to involve migrants e.g. in local police service or
public education, especially in urban areas of mixed populations. Member States
should be entitled to follow and expand this good practice.
With regard to Art. 12,
we should like to make some additional remarks on political participation.
Some Member States already provide third country nationals with the right to
participate in local elections. The Council of Europe has recommended fostering
participation of foreigners in political life of European societies.
As participation in local and European elections is already assured for
nationals of Member States, we encourage Member States to grant the same right
at least for long-term resident third country nationals. This would be in line
with the Tampere conclusions to approximate their legal status to that of
nationals of Member States.
Finally, in the context of protection
against expulsion as provided for by Art. 13,
we should like to underline the importance of its par. 4
to avoid a double penalty. In our view, it is of utmost
importance for a coherent integration policy that national penal law be the
exclusive tool for penalising criminal offences – as for national
citizens. The expulsion of a third country national who has acquired long-term
resident status should – if ever – be the absolutely last resort.
We sincerely hope that this
proposal by the Commission will find the support it deserves and be adopted
quickly. This would mark a concrete step in the follow-up to the Tampere summit
of 1999 and the establishment of an Area of Freedom, Security and Justice. An
added value will be that third country nationals can feel being part of Europe
and respected as equal human beings, which is vital also in shaping a European
immigration policy as well as coherent European social policies.
 Cf. European Council of Tampere, Presidency Conclusions, N°s 18 and 21.
 Amended Proposal for a Council Directive on the right to family reunification, COM (2000) 624 final.
 See our Position on the European Commission’s Proposal for a Council Directive on the right to family reunification [COM (1999) 638 final] of 20 March 2000, updated on 22 November 2000 with regard to the amended proposal COM (2000) 624 final.
 Council Directive 2001/55/ EC of 20
July 2001 on minimum standards for giving temporary protection in the event of
a mass influx of displaced persons and on measures promoting a balance of
efforts between Member States in receiving such persons and bearing the
consequences thereof, O.J. L 212 of 7 August 2001.
 Moreover, this
provision would totally contradict Art. 22 of the proposed Council Directive
laying down minimum standards for the qualification and status of third country
nationals and stateless persons as refugees, in accordance with the 1951
Convention relating to the status of refugees and the 1967 protocol, or as
persons who otherwise need international protection (COM (2001) 510 provisional
verion), which stipulates that Member States shall grant beneficiaries of
subsidiary protection long term-residence status on the same terms as those
applicable to refugees.
With a view to the European Commissions aim to simplify legislation, it would be preferable to remain coherent at this point.
 See our Contribution to the debate on the Communication by the Commission on a Community Immigration Policy, (COM (2000) 757 final), 28 May 2001, p. 3, 4.
 European Convention on Participation of Foreigners in Local Public Life, Chapter C, art. 6. While this is not the immediate competence of the EU, we believe that the Council of Europe's Convention should be considered a basis by Member States when designing a common policy.