Civic Citizenship Reintroduced? The Long‐Term Residence Directive as a Post‐National Form of Membership
| Published date | 01 March 2015 |
| Date | 01 March 2015 |
| DOI | http://doi.org/10.1111/eulj.12112 |
| Author | Diego Acosta Arcarazo |
Civic Citizenship Reintroduced? The
Long-Term Residence Directive as a
Post-National Form of Membership
Diego Acosta Arcarazo*
Abstract: This paper presents how the Long-Term Residence Directive has created a
status that can be considered as a subsidiary form of EU citizenship. This key revolution
has been operated by EU law since this status escapes direct control by Member States
that are obliged to grant EU long-term residence and the rights associated with it to
third-country nationals (TCNs) fulfilling the conditions in the Directive. This represents
a fundamental development and may be distinguished from the acquisition by TCNs of
national/EU citizenship, which constitutes a prerogative of State sovereignty. Indeed, the
recent cases by the Court of Justice analysed below confirm this truly post-national form
of membership and have profound implications for the relationship between borders,
territory and population in the EU.
I Introduction
This paper presents how the Long-Term Residence Directive has created a status that
can be considered as a subsidiary form of EU citizenship. This key revolution has
been operated by EU law since this status escapes direct control by Member States
that are obliged to grant EU long-term residence and the rights associated with it to
third-country nationals (TCNs) fulfilling the conditions in the Directive. This central
development has been confirmed by several cases in 2013 and early 2014, notably
three directly dealing with the Directive,1as well as the Commission’s implementation
report.2These cases have restrictively interpreted those conditions and have confirmed
a wide scope on who is covered by the Directive. This represents a crucial advance
and may be distinguished from the acquisition by TCNs of national/EU citizenship,
* Lecturer in European Law, University of Bristol. I am grateful for comments on an earlier version of
this article from Sonia Morano-Foadi at a seminar in Oxford Brookes, from Anja Wiesbrock at a
presentation at the University of Oslo, from Violeta Moreno-Lax, Julian Rivers, Dimitry Kochenov and
Sara Iglesias Sánchez, and from the anonymous referees. The law is stated as of 15 June 2014. The usual
disclaimer applies.
1Case 508/10, European Commission v. Kingdom of the Netherlands [2012] nyr; Case 571/10, Servet
Kamberaj v. Istituto per l’Edilizia sociale della Provincia autonoma di Bolzano (IPES) and Others [2012]
nyr; Case 502/10, Staatssecretaris van Justitie v. Mangat Singh [2012] nyr. Other recent rulings have also
touched upon the Directive: Case 40/11, Yoshikazu Iida v. Stadt Ulm [2012] nyr; Case 371/08, Nural
Ziebell v. Land Baden-Württemberg [2011] nyr.
2Commission report on the application of Directive 2003/109/EC concerning the status of third-country
nationals who are long-term residents, COM (2011) 585 final.
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European Law Journal, Vol. 21, No. 2, March 2015, pp. 200–219.
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which constitutes a prerogative of State sovereignty. Indeed, the cases by the Court of
Justice of the EU (CJEU) analysed below confirm this truly post-national form of
membership and have profound implications in transforming Member State’s control
over the relationship between territory and population.3
This paper contributes to various central debates by both legal scholars and politi-
cal scientists. First, and most obviously, it adds to the rich discussion on the relation-
ship between EU nationals and TCNs and the inclusion of the latter in Europe,4as
well as to the legal interpretation of EU Migration law more generally,5since many of
the findings of the Court may be applied by analogy to similar provisions in other EU
migration Directives.
Second, it represents an advancement of our understanding of post-national forms
of membership as discussed at length by various authors during the last two decades.
However, these theories need to be reassessed in light of a post-national status
deriving directly from EU law and which did not exist before 2004.
Third, it is also of interest for those debating the two main approaches to the
analysis of migration to the EU: policy failure and securitisation.6For example,
proponents of the policy failure theories7could read these developments as a confir-
mation of their propositions since, despite the widespread strong political rhetoric
against migrants in many Member States, TCNs obtain a secure residence status and
further rights. They would need, however, to disregard the fact that the Directive was
adopted by the Member States themselves following the 1999 Tampere conclusions
where they advocated for comparable treatment between EU citizens and TCNs. This
comparable treatment objective was restated in the Stockholm programme in 2009.
Consequently, this could also be read as an instance of policy success. In turn,
proponents of securitisation theories,8with their important insights about the State as
power-maximising agent constantly trying to enhance control over migration, will
find here a challenging case since once again it was those States who adopted Direc-
tive. Thus, the interpretation of long-term residence goes beyond these theories and
provides a more nuanced picture on the relationship between Member States and the
EU, on how they are affected by EU action and on how one may label EU’s approach
to migration: whether as liberal or conservative.9
3D. Acosta Arcarazo, The Long-Term Residence Status as a Subsidiary Form of EU Citizenship (Martinus
Nijhoff, 2011), at 4.
4E. Guild, K. Groenendijk and S. Carrera (eds), Illiberal Liberal States. Immigration, Citizenship and
Integration in the EU (Ashgate, 2009); R. van Oers, E. Ersbøll and D. Kostakopoulou (eds), A
Re-Definition of Belonging? Language and Integration Tests in Europe (Martinus Nijhoff, 2010).
5S. Peers, E. Guild, D. Acosta Arcarazo, K. Groenendijk and V. Moreno-Lax (eds), EU Migration Law:
Text and Commentary (Martinus Nijhoff, 2012); K. Hailbronner (ed), EU Immigration and Asylum Law.
Commentary on EU Regulations and Directives (Beck/Hart, 2010).
6A. Geddes and C. Boswell, Migration and Mobility in the European Union (Palgrave Macmillan, 2011),
at 39–43.
7See among others: S. Castles, ‘Why Migration Policies Fail’, (2004) 27 Ethnic and Racial Studies 205;
J. Bhagwati, ‘Borders Beyond Control’, (2003) January/February Foreign Affairs 98.
8D. Bigo, ‘Security and Immigration: Toward a Critique of the Governmentality of Unease’, (2002) 27
Alternatives: Global, Local, Political 63; J. Huysmans, ‘The European Union and the Securitization of
Migration’ (2000) 38 Journal of Common Market Studies 751.
9See for an excellent discussion on this dichotomy: S. Peers, ‘Justice and Home Affairs Law Since the
Treaty of Lisbon: A Fairy-Tale Ending?’, in D. Acosta Arcarazo and C.C. Murphy (eds), EU Security
and Justice Law. After Lisbon and Stockholm (Hart, 2014), at 17–37.
March 2015 Long-Term Residence as a Post-National Form of Membership
201
© 2014 John Wiley & Sons Ltd.
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