Draft Comments – 24 September 2001
Caritas Europa
4, Rue de Pascale, B-1040 Bruxelles
CCME
– Churches' Commission for Migrants in Europe
174, Rue Joseph II, B-1000 Bruxelles
COMECE
– Commission of the Bishops' Conferences of the European Community
-
Working group on Migration
42, Rue Stévin, B-1000 Bruxelles
Conference
of European Justice and Peace Commissions
Boltzmanngasse 14, A-1090 Wien
ICMC – International Catholic Migration
Commission
4,
Rue De Pascale, B-1040 Bruxelles
JRS-Europe – Jesuit Refugee Service Europe
8
Haachtsesteenweg, B-1210 Brussel
QCEA
– Quaker Council for European Affairs
50, Square Ambiorix,
B-1000 Bruxelles
Comments on the European Commission’s Proposal for a
COUNCIL DIRECTIVE concerning the
status of third country nationals who are
long-term residents
COM (2001) 127 final
The
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.
General remarks
1. 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. 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
migrants.
2. 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”[1].
3. 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 reunification[2]
be maintained when it is adopted by the Council of Ministers[3].
Specific Comments
4. With
regard to the question 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 dare to look for other
opportunities where their skills are 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.
Chapter I: General provisions
While we approve the duration of five years as adequate, we are however concerned about a certain number of derogations.
5. 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[4].
6. 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[5]. 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
belong.
7. 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 that the
status of persons whose asylum case is not finalised is not clear. 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.
Chapter II: Long-term resident status in a Member State
8.
Art. 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[6], 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.
9. While
we agree that a certain number of material conditions
must be met as provided for by Art. 6, we are
somewhat irritated 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 sickness insurance”.
10. 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.
11. Equally,
for reasons already outlined above (par. 8), 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)).
12. 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 which
treats every legal inhabitant on equal footing. We are especially pleased about
the inclusion of study grants in the list of areas where equal treatment is to
be guaranteed.
13. 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.
14. With
regard to Art. 12, we should like to make some
additional remarks on political participation. Some
Member States already foresee a right for third country nationals to
participate in local elections. The Council of Europe has recommended fostering
participation of foreigners in political life of European societies[7].
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.
15. 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.