Staatssecretaris van Justitie v Singh [2012] EUECJ C-502/10 (15 May 2012)

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(Directive 2003/109/EC - Status of third-country nationals who are long-term residents - Scope of application of the directive - Scope of the exclusion mentioned in Article 3(2)(e) - Concept of -�formally limited residence permit-�)

1. The present case gives the Court of Justice the opportunity to define the scope of application of Council Directive 2003/109/EC of 25 November 2003 concerning the status of third-country nationals who are long-term residents. (2)

2. The directive establishes a common status of long-term resident in such a way that every third-country national who is legally settled on a long-term basis in the Member States can acquire that status and benefit from it on much the same terms in all of the European Union. The directive therefore harmonises the criteria for acquiring the status of long-term resident and the rights which are attached to it on the basis of equal treatment with the citizens of the European Union.

3. In Article 3(2)(e) of the directive, the European Union legislature has excluded third-country nationals who -�reside solely on temporary grounds such as au pair or seasonal worker, or as workers posted by a service provider for the purposes of cross-border provision of services, or as cross-border providers of services or in cases where their residence permit has been formally limited-� from the scope of application of that directive.

4. In that situation and in accordance with the first subparagraph of Article 4(2) of the directive, periods of residence of third-country nationals in the territory of Member States are not to be taken into account for the purposes of calculating the duration of the stay required for the purpose of the granting of the status of long-term resident, fixed at five years. (3)

5. In the present case, the Raad van State (Netherlands) is essentially requesting the Court of Justice to state the meaning that the European Union legislature intended to give to the concept of formally limited residence permit in order to clarify the scope of the exclusion referred to in Article 3(2)(e) of the directive.

6. That reference for a preliminary ruling is being made in a dispute between the Staatssecretaris van Justitie (Secretary of State for Justice, the -�Staatssecretaris-�) and Mr Singh, an Indian national whose formally limited residence permit was renewed during a period of slightly more than seven years, relating to the refusal to issue a long-term resident-�s residence permit.

7. The directive was transposed in the Netherlands by the law providing for a comprehensive review of the law on foreign nationals (Wet tot algehele herziening van de Vreemdelingenwet) of 23 November 2000. (4)

8. As set out in Article 14(2) of that law, a residence permit for a fixed period is coupled with restrictive conditions concerning the reason for which the residence is authorised. Other conditions may be imposed. Pursuant to Article 14(3) of that law, that permit is issued for a maximum duration of 5 successive years.

9. In addition, in accordance with Article 21(1) of the law providing for a comprehensive review of the law on foreign nationals, the application for the issue of an indefinite residence permit can be rejected if, inter alia, the foreigner had a formally limited right of residence during the five years immediately prior to that application.

10. The Dutch legislature adopted the decree on foreign nationals of 2000 (Vreemdelingenbesluit 2000) (5) on the basis of that law.

11. As set out in Article 3.5(2)(d) of that decree, the right of residence founded on the residence permit for a fixed period is temporary when that residence permit has been granted with a restriction relating to the paid activity of spiritual leader or teacher of religion, unless that right of residence is founded on Decision No 1/80 of the Association Council of 19 September 1980 on the development of the Association. (6)

12. In accordance with Article 3.33(1) of that decree, that permit is only granted if the foreigner states in writing that he was informed that the stay is only authorised for the performance of the activities of spiritual leader or teacher of religion for the benefit of a group which must be precisely named, that the residence can only be authorised for the duration of those activities, that, at the end of those activities, he must leave the Netherlands and that he is not allowed to carry out activities of a different nature during his stay in the Netherlands.

13. In the guidelines on the implementation of the law on foreign nationals of 2000 (Vreemdelingencirculaire 2000), the Staatssecretaris has set out the detailed rules for the exercise of the powers which were conferred on him by the law providing for a comprehensive review of the law on foreign nationals and the decree on foreign nationals of 2000.

14. As set out in section B1/2.4 of those guidelines, the question of whether or not the right of residence of a third-country national is temporary is not deduced from the fixed nature of the residence permit which is granted to him/her, but results solely from the application of Article 3.5 of that decree. If the residence permit has been issued subject to a restriction mentioned in Article 3.5(2) of that decree, the right of residence is then per se of a temporary nature.

15. It must be pointed out that that regulation was amended by a law of 7 July 2010 (7) and by a decree of 24 July 2010 (8), which have not yet, however, come into force. From then on, the stay of spiritual leaders and of teachers of religion on Dutch territory is defined as not being per se of a temporary nature and can therefore be taken into consideration in connection with the grant of a long-term resident-�s residence permit.

16. On 22 October 2001, Mr Singh obtained a residence permit for a fixed period relating to his work as a spiritual leader or as a teacher of the religion of Guru Nanak Gurudwara. That permit was renewed on several occasions, each time for a fixed period. On 30 May 2007, nearly five years and eight months after his arrival in the Netherlands, Mr Singh submitted an application for the issue of a long-term resident-�s residence permit.

17. By decision of 15 November 2007 the Staatssecretaris refused his application and once more extended the validity of his residence permit to 19 January 2009. The Staatssecretaris was of the view that Mr Singh was not within the scope of application of the directive as he had a formally limited residence permit.

18. In connection with the action brought by Mr Singh against that rejection decision, the Staatssecretaris claims that the concept of -�formally limited residence permit-� mentioned in Article 3(2)(e) of the directive leaves Member States with the possibility of excluding holders of certain residence permits which are subject to formal restrictions from the benefit of the status of long-term resident.

19. The Raad van State, before which the dispute was brought, observes that the discretion allowing a Member State to grant and renew residence permits for fixed periods - without thereby giving a prospect of obtaining a long-term resident-�s residence permit - could adversely affect the effectiveness of the directive and hinder the harmonisation of the conditions for acquiring the status of long-term resident mentioned in that directive.

20. After having observed that the concept of -�formally limited residence permit-� mentioned in Article 3(2)(e) of the directive was not defined, the Raad van State decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:

21. Written observations have been submitted by Mr Singh, the Dutch and Belgian governments and the European Commission.

22. By means of its question for a preliminary reference, the referring court is essentially asking the Court of Justice whether Article 3(2)(e) of the directive must be interpreted as meaning that it precludes legislation of a Member State, such as that in question in the main proceedings, which excludes third-country nationals who hold a residence permit which is formally limited to the activity of spiritual leader and of teacher of religion from the benefit of the status of long-term resident, even though that permit can be renewed several times.

23. The implications of the reply to the question asked by the referring court are obvious.

24. This is a question of defining the scope of application of the directive and, in particular, of determining the scope which the European Union legislature intended to give to the exclusion of third-country nationals in possession of a formally limited residence permit from the benefit of the status of long-term resident. That clarification is necessary for a coherent and consistent application in all of the Member States of the criteria for acquiring the status of long-term resident and is essential for the legal certainty of third-country nationals who are likely to claim the grant of a long-term resident-�s residence permit.

25. The concept of a formally limited residence permit has not been defined by the European Union legislature. That legislature has also not deferred to the law of the Member States as regards the meaning which should be attached to those words. As a consequence, for the purpose of the application of the directive, those words must be considered to represent an independent concept of European Union law and must be uniformly interpreted in the territory of all of the Member States. (9) Furthermore, that implies that the meaning and scope of those words for which European Union law provides no definition must be determined, inter alia, by taking account of the context in which they are used and the objectives pursued by the regulation of which they form a part. (10)

26. It is on that basis that I propose that the Court of Justice should reject the interpretation which the Dutch and Belgian governments suggest in their written observations. Those governments claim that Article 3(2)(e) of the directive allows Member States to classify certain residence permits as -�formally limited-�, regardless of whether or not the stays are of a naturally temporary nature, with the aim of excluding their holders from the scope of application of the directive. Whilst it is true that the European Union legislature gave Member States a certain latitude allowing them to determine the extent to which certain groups of nationals whose situation is not specifically mentioned in the directive can be excluded from the scope of application of that directive, the fact remains that the discretion which they have finds its limit in their obligation to ensure the effectiveness of the directive.

27. However, for reasons which I am now going to set out, there is no doubt in my eyes that both the purpose of the directive and its contents, and the wording of Article 3(2)(e) of the directive in particular, demand that the concept of -�formally limited residence permit-� referred to in that provision be interpreted as meaning that it covers residence permits which are issued by Member States for the purpose of the exercise of a profession or an activity which entails a temporary period of residence in their territory.

28. The purpose of the directive, as is expressed inter alia in recitals 2, 4 and 12 to the directive, is to achieve a scheme based on the integration of third-country nationals who are legally settled on a long-term basis in the Member States in such a way as to contribute to the economic and social cohesion which is a fundamental objective of the European Union.

29. That scheme is based on the grant of long-term resident status. The definition of a status which is common to all Member States must ensure fair treatment of legally resident third-country nationals so that they can acquire that status and enjoy it on much the same terms in all of the European Union. To that effect, the establishment of that status must allow the legal certainty of third-country nationals to be guaranteed by preventing the acquisition of such a status from being left to the discretion of Member States once the conditions are actually met. (11)

30. The granting of long-term resident status must also allow those nationals to be offered rights and obligations which are comparable to those of European Union citizens in a wide range of economic and social matters such as employment, accommodation, social protection and social assistance and strives for as close a harmonisation as possible of their legal status. To that effect, that status also seeks to guarantee them legal certainty by affording them reinforced protection against expulsion.

31. The integration of third-country nationals and the resulting status of long-term resident are therefore based on the criterion of long-term residence.

32. The European Union legislature starts from the premiss that, after a period of residence in the territory of the host Member State which is sufficiently long and continuous, the third-country national has expressed his intention to settle permanently in the territory of that State and has shown that he has put down roots in that State. (12)

33. The duration of the stay of the third-country national in the territory of the host Member State reveals the intensity of the links established in the territory of that State and therefore a certain level of integration, as that third-country national has developed close links with that State. The longer the period of residence in the territory of the host Member State, the closer the links with that State are assumed to be and the more complete the integration tends to be, and eventually that national feels that he is assimilated with a national and that he forms an integral part of the society of that Member State.

34. The European Union legislature therefore intended to base the grant of a long-term resident-�s residence permit on the criterion of long-term residence in the host Member State, the fourth recital to the directive referring to the concept of long-term residence and the sixth recital to the directive stating that -�the main criterion for acquiring the status of long-term resident should be the duration of residence in the territory of a Member State-�.

35. Consequently, Article 4(1) of the directive lays down the principle that Member States must grant long-term residence status to third-country nationals who have resided legally and continuously within its territory for five years immediately prior to the submission of the relevant application, subject to, it must be pointed out, the satisfaction of the three other conditions mentioned in Articles 5 and 6 of the directive. (13)

36. The objective and the background on which the grant of long-term residence status is based explain the scope of the exclusions mentioned by the European Union legislature in Article 3(2) of the directive.

(b) are authorised to reside in a Member State on the basis of temporary protection -�

(d) are refugees or have applied for recognition as refugees and whose application has not yet given rise to a final decision;

(e) reside solely on temporary grounds such as au pair or seasonal worker, or as workers posted by a service provider for the purposes of cross-border provision of services, or as cross-border providers of services or in cases where their residence permit has been formally limited;

(f) enjoy a legal status governed by the Vienna Convention on Diplomatic Relations of 1961, the Vienna Convention on Consular Relations of 1963, the Convention of 1969 on Special Missions or the Vienna Convention on the Representation of States in their Relations with International Organisations of a Universal Character of 1975.-�

38. The purpose of that provision, as is clearly apparent from the proposal of the Commission, is to exclude from the scope of application of the directive people who have no intention of settling on a long-term basis in the territory of the Member States. (14)

39. Subparagraph (a) of Article 3(2) of the directive applies to students and people admitted with a view to pursuing vocational training. In the proposal of the Commission, the Commission observed that those people are only admitted for temporary periods and return, in principle, to their own country at the end of their training. (15) Subparagraph (b) refers to people benefiting from temporary protection, which, as a reminder, is of a maximum duration of one year. (16) Subparagraphs (c) and (d) are aimed at individuals who benefit from international protection or whose application is in the process of being examined. Finally, subparagraph (f) refers to people whose legal situation is covered by international agreements in the fields of diplomatic and consular relations and relations with international organisations. Article 3(2) of the directive therefore excludes various situations in which the stay of a third-country national cannot be considered as falling within the scope of long-term residence.

40. That is the context in which the exclusion at issue here is inserted in subparagraph (e).

41. Unlike the exclusions mentioned in subparagraphs (a) to (d) and (f) of Article 3(2) of the directive, which all refer to very specific situations, the exclusion mentioned in subparagraph (e) is capable of covering a relatively wide scope of application.

42. On the one hand, the words used in Article 3(2)(e) of the directive, whether it be by their scope (-�on temporary grounds-�) or in so far as they expressly envisage other cases than those mentioned in the provision (-�such as-�), do not allow for an exhaustive understanding of all of the situations set out in that exclusion.

43. On the other hand, the situations covered by the concept of a formally limited residence permit are not as clearly identifiable as those concerning au pair or seasonal workers, posted workers or cross-border providers of services.

44. None the less, the exclusion referred to in Article 3(2)(e) of the directive having been provided for, it must have a meaning which can only be in harmony with the purpose of the directive, which I have just mentioned, and the structure of the provision in which it is inserted.

45. In addition, that exclusion must be the subject of a restrictive interpretation. It amounts to a derogation from the principles presented both in Article 3(1) of the directive, pursuant to which that directive applies to every third-country national residing legally in the territory of a Member State, and in Article 4(1) of the directive, pursuant to which a legal and continuous residence of five years within the territory of the Member State allows a claim to be made for the grant of long-term residence status. Let us bear in mind that, in accordance with Article 4(2) of the directive, periods of residence for the reasons referred to in Article 3(2)(e) of the directive are not to be taken into account for that purpose. Only a strict interpretation of the concept of a formally limited residence permit is therefore able to guarantee those nationals a higher level of legal certainty as regards the grant of long-term residence status.

46. However, the wording of Article 3(2)(e) of the directive gives an indication as to the necessary scope of the concept of a formally limited residence permit.

47. By the words which introduce it, that provision expressly relates to the situation of nationals who -�reside solely on temporary grounds [(17)]-�. As a consequence, the examples which the European Union legislature provides only illustrate the situations in which the profession or the activity exercised by the person concerned in the Member State is per se of a temporary nature and leads to a stay of limited duration, therefore not allowing the nationals concerned to establish close links with the Member State within which they are resident.

48. As regards the situation of au pair workers, seasonal workers, posted workers or cross-border providers of services, referred to in the proposal of the Commission, the Commission has pointed out that the common and decisive factor amongst all of those individuals is the short duration of their stay, those individuals having no intention to settle in the Member State where they are temporarily residing, (18) such as students and people pursuing vocational training.

49. The situation of people in possession of a formally limited residence permit was added in connection with the workings of the Council of the European Union on the initiative of the Kingdom of Belgium. (19)

50. In so far as the European Union legislature introduced that concept following the various examples mentioned above by the co-ordinating conjunction -�or-�, that notion must therefore be interpreted as also referring to nationals whose stay in the Member State is temporary, like the examples which precede it.

51. In light of those considerations, I consequently think that, by excluding third-country nationals in possession of a formally limited residence permit in the Member States from the benefit of the status of long-term resident, the European Union legislature referred to the situations in which the Member States issued those nationals with a formally limited residence permit for the purpose of the exercise of a profession or an activity which entails a temporary period of residence in their territory.

52. In other words, Article 3(2)(e) of the directive does not, in my opinion, allow the exclusion of nationals whose residence permit has been formally limited to the exercise of an activity or of a profession, which by its very nature or because of the renewal and/or the extension of that permit entails a legal and long-term stay in the territory of the Member State, from the scope of application of the directive.

53. That last situation refers to situations in which the residence permit, although formally limited to the exercise of an activity or of a profession, was renewed and extended in such a way that the third-country national resided on a long-term and continuous basis in the territory of the Member State, the activity or profession exercised by that national therefore losing its temporary nature and becoming of a long-term nature.

54. In my opinion, that interpretation is required to guarantee the effectiveness of the directive and to ensure the pursuit of its objectives.

55. To allow Member States to classify residence permits as -�formally limited-�, regardless of the temporary nature of the stay or of the activity in question, as the Dutch and Belgian governments claim, would amount to distorting both the objectives which the European Union legislature seeks to pursue within the context of the directive and the scope of application of that directive, as the Member States would be able to artificially limit its scope.

56. On the basis of Article 3(2)(e) of the directive and under the cloak of the granting of a formally limited residence permit, the Member States could exclude particular categories of third-country nationals from the benefit of the status of long-term resident, even though those third-country nationals would be eligible for that status, given their legal and long-term residence in the territory of those States.

57. Firstly, that would deprive those nationals of the rights attached to the grant of a long-term resident-�s residence permit which are far better than those rights from which holders of a formally limited residence permit benefit.

58. Secondly, that would have the effect of depriving those nationals of the legal certainty which the directive is designed, however, to confer on each resident who is legally settled on a long-term basis in the territory of a Member State, which, as a result, would be detrimental to their integration in that State.

59. Thirdly, that would result in ending the fair treatment which must be granted to all third-country nationals who reside legally and on a long-term basis in the territory of a Member State. Where the stay of a third-country national in a Member State is not of a temporary nature and where his residence has reached 5 years, taking account of the number and the accumulated duration of the formally limited residence permits which he was granted, nothing in my opinion justifies the fact that he is deprived of both the chance of counting his periods of residence, pursuant to Article 4(1) of the directive, and of claiming the benefit of the rights and guarantees attached to the status of long-term resident, subject to the satisfaction of the other conditions referred to in the directive.

60. Fourthly, we would lose sight of what in the light of the sixth recital and Article 4 of the directive amounts to the main criterion for acquiring the status of long-term resident, namely the duration of the residence, in favour of vaguer criteria such as those linked to the performance of a certain type of profession or activity.

61. In my opinion, the present case perfectly illustrates those risks, taking account of its specific circumstances and in particular of the number and accumulated duration of the formally limited residence permits which were granted to Mr Singh. (20)

62. Mr Singh was granted a formally limited residence permit from 22 October 2001; that permit was renewed each time for a fixed period, firstly until 8 September 2002, then until 19 January 2005, then until 19 January 2008 and finally until 19 January 2009, thus for a total period of more than seven years. Contrary to Article 14(3) of the law providing for a comprehensive review of the law on foreign nationals, his stay was thus authorised for a period much longer than five years.

63. During that period, there is no doubt that Mr Singh intended to settle on a long-term basis in the Netherlands, as is shown by his activites, which, as we are going to see, were not characterised by grounds for a temporary stay, and by his application on 30 May 2007 for a long-term resident-�s residence permit.

64. Even though Mr Singh resided in the Netherlands for more than seven years, which is considerably more than the duration of residence required for the purpose of acquiring the status of long-term resident, he finds himself deprived of both the chance of using those periods of residence for the purpose of obtaining that status and consequently of claiming that status and of the legal certainty which the directive is intended to guarantee to nationals who reside legally and on a long-term basis in the territory of the Member States.

65. Furthermore, Mr Singh was granted a residence permit formally limited to the exercise of a profession which is not of a temporary nature and which therefore distinguishes it very clearly from the situation of au pair or seasonal workers or of students whose duration of stay is limited in time and who do not intend to integrate into the Member State on whose territory they reside.

66. As is apparent from the order for reference, it is not disputed that the duration of the validity of a residence permit of a spiritual leader or of a teacher of religion can be extended indefinitely. In that respect, the referring court firstly points out that, as stated in a letter sent by the Minister for Immigration and Integration on 11 May 2006, in practice, many nationals who settle for that purpose do not leave the Netherlands; secondly that, in many cases, their stay is long-term and thirdly that, on those grounds amongst others, that Minister intended to consider the situation of spiritual leaders and of teachers of religion in the future to not be of a temporary nature. It is therefore significant that, as the referring court stated, those nationals have been required since 1 January 2002 to learn Dutch and to integrate into society.

67. In accordance with the observations made by the referring court, the Dutch government acknowledges, however, that the stay of spiritual leaders and of teachers of religion in the Kingdom of the Netherlands is not of a temporary nature.

68. In fact, and as I stated in point 15 of this Opinion, the Dutch authorities recently adopted a reform, which has not yet come into force, amending Article 3.5 of the decree on foreign nationals of 2000, with a view to allowing spiritual leaders and teachers of religion to make a claim for the grant of a long-term resident-�s residence permit.

69. As a consequence, it must be stated that the stay of those nationals in the Netherlands is not of a temporary nature, with the result that the residence permit for a fixed period of time which is granted to them, coupled with a restriction linked to the exercise of an activity of spiritual leader or of teacher of religion, cannot be classified as -�formally limited-� within the meaning of Article 3(2)(e) of the directive.

70. In the light of all of those considerations, I am of the view that Article 3(2)(e) of the directive must be interpreted as precluding legislation of a Member State, such as that in question in the main proceedings, which excludes from the benefit of the status of long-term resident third-country nationals who hold a residence permit which is formally limited to the exercise of an activity or a profession which, by its very nature or because of the renewal and/or the extension of that permit, entails a legal and long-term stay in the territory of that Member State.

71. In the light of the foregoing considerations, I propose that the Court should give the following answer to the Raad van State:

Article 3(2)(e) of Council Directive 2003/109/EC of 25 November 2003 concerning the status of third-country nationals who are long-term residents must be interpreted as precluding legislation of a Member State, such as that in question in the main proceedings, which excludes from the benefit of the status of long-term resident third-country nationals who hold a residence permit which is formally limited to the exercise of an activity or a profession which, by its very nature or because of the renewal and/or the extension of that permit, entails a legal and long-term stay in the territory of that Member State.

2- OJ 2004 L 16, p. 44, (-�the directive-�). The directive was amended after the facts giving rise to the dispute in the main proceedings by Directive 2011/51/EU of the European Parliament and of the Council of 11 May 2011 (OJ 2011 L 132, p. 1).

3- Article 4(1) of the directive provides that -�Member States shall grant long-term resident status to third-country nationals who have resided legally and continuously within its territory for five years immediately prior to the submission of the relevant application-�.

6 - The Association Council was created by the Agreement establishing an Association between the European Economic Community and Turkey which was signed in Ankara on 12 September 1963 by the Republic of Turkey on the one hand and the Member States of the EEC and the Community on the other. That Agreement was concluded, approved and confirmed on behalf of the Community by Council Decision 64/732/EEC of 23 December 1963 (OJ 1973 C 113, p. 1).

9- See Joined Cases C-424/10 and C-425/10 Ziolkowski and Szeja [2011] ECR I-0000, paragraph 32 and the case-law cited.

11 - See paragraph 5.2 of the proposal for a Council directive concerning the status of third-country nationals who are long-term residents (COM(2001) 127 final, the -�proposal of the Commission-�).

13 - Under those provisions, the third-country national must have stable, regular and sufficient resources and sickness insurance and must not represent a threat to public policy or public security.

16- See Articles 2(a) and 4(1) of 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 (OJ 2001 L 212, p. 12).

19 - See the results of the documents of the Strategic Committee on Immigration, Frontiers and Asylum (COM(2001) 127 final) (p. 4, footnote 2). That document is available on the internet site of the Council under the reference 8408/03.

20 - For another illustration, see the communication to the members of 26 October 2009 concerning petition 0118/2008 lodged before the committee on petitions of the European Parliament concerning the application of the exclusion mentioned in Article 3(2)(e) of the directive to Cyprus, available on the internet site of the Parliament. Within the context of that petition, the competent national authorities are criticised for having refused to grant long-term resident status to a third-country national in possession of a formally limited residence permit for the purpose of the activity of a housekeeper, although her permit had been renewed several times with the result that she had been legally residing in Cyprus for nine years.

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