Opinion of Advocate General Richard de la Tour delivered on 26 October 2023.
| Jurisdiction | European Union |
| ECLI | ECLI:EU:C:2023:819 |
| Date | 26 October 2023 |
| Celex Number | 62022CC0752 |
| Court | Court of Justice (European Union) |
Provisional text
OPINION OF ADVOCATE GENERAL
RICHARD DE LA TOUR
delivered on 26 October 2023 (1)
Case C‑752/22
EP
v
Maahanmuuttovirasto
(Request for a preliminary ruling from the Korkein hallinto-oikeus (Supreme Administrative Court, Finland))
(Reference for a preliminary ruling – Immigration policy – Directive 2003/109/EC – Status of third-country nationals who are long-term residents – Terms of residence of a long-term resident in another Member State – Article 22(3) – Enhanced protection against expulsion – Third-country national who is a long-term resident in one Member State staying illegally on the territory of another Member State – Return decision accompanied by an entry ban covering national territory imposed on grounds of public policy and public security – Directive 2008/115/EC – Common standards and procedures in Member States for returning illegally staying third-country nationals – Article 6(2) – Third-country national holding a valid residence permit issued by another Member State)
I. Introduction
1. Does a third-country national who has acquired long-term resident status in a Member State in accordance with Directive 2003/109/EC (2) benefit, in another Member State whose territory he or she has entered in breach of an entry ban imposed on him or her, from the enhanced protection against expulsion provided for by Article 12 and Article 22(3) of that directive?
2. That, in essence, is the question raised by this reference for a preliminary ruling.
3. The reference has been made in proceedings between EP, a Russian national who has acquired long-term resident status in Estonia, and the Maahanmuuttovirasto (National Immigration Service, Finland) (‘the Immigration Service’) concerning the legality of a decision to remove EP to the Russian Federation, accompanied by an entry ban covering the Schengen area (‘the contested decision’), subsequently narrowed to the national territory. While the Immigration Service based its decision on the provisions of Directive 2008/115/EC, (3) the Korkein hallinto-oikeus (Supreme Administrative Court, Finland), is uncertain whether the Immigration Service was not required, on the contrary, to give effect to the measures concerning enhanced protection against expulsion laid down in favour of third-country nationals who are long-term residents by Article 22(3) of Directive 2003/109.
4. In the present case, the Court must therefore consider, once again, the question of the co-existence, in relation to one and the same third-country national, of an entry ban imposed by one Member State and a valid residence permit issued by another Member State. (4) The circumstances of this case illustrate the difficulties arising in relation to the determination of the respective scopes of Directives 2003/109 and 2008/115 – which, moreover, the European Commission has identified in its current proposal to recast Directive 2003/109. (5) Its current proposals seek to ensure that the two directives are more consistent and complement each other better. (6)
5. In this Opinion, which, as requested by the Court, will focus on the first question referred, I will explain why I consider that a third-country national who has long-term resident status in one Member State can exercise the right derived from that status to reside in another Member State, and enjoy the protection which flows from that right, only where that third-country national has obtained a residence permit in the latter Member State. I will conclude from my analysis that Article 22(3) of Directive 2003/109 must be interpreted as meaning that it does not govern the conditions under which a Member State may adopt a decision to remove a third-country national where he or she has entered the territory of that Member State in breach of an entry ban imposed on him or her for reasons of public policy and public security.
II. Legal framework
A. European Union law
6. Article 1 of Directive 2003/109, headed ‘Subject matter’, provides:
‘This Directive determines:
(a) the terms for conferring and withdrawing long-term resident status granted by a Member State in relation to third-country nationals legally residing in its territory, and the rights pertaining thereto; and
(b) the terms of residence in Member States other than the one which conferred long-term status on them for third-country nationals enjoying that status.’
7. Article 2(b) to (d) of that directive, headed ‘Definitions’, is worded as follows:
‘For the purposes of this Directive:
…
(b) “long-term resident” means any third-country national who has long-term resident status as provided for under Articles 4 to 7;
(c) “first Member State” means the Member State which for the first time granted long-term resident status to a third-country national;
(d) “second Member State” means any Member State other than the one which for the first time granted long-term resident status to a third-country national and in which that long-term resident exercises the right of residence.’
8. Article 3 of that directive, headed ‘Scope’, provides in paragraph 1:
‘This Directive applies to third-country nationals residing legally in the territory of a Member State.’
9. Chapter II of Directive 2003/109 contains Articles 4 to 13. It lays down the conditions for the grant and withdrawal of long-term resident status granted by a Member State to third country-nationals staying legally on its territory, together with the associated rights, the objective being to facilitate the integration of such third-country nationals in order to promote economic and social cohesion in accordance with recitals 4 and 6 of that directive.
10. Article 12 of that directive, headed ‘Protection against expulsion’, provides as follows:
‘1. Member States may take a decision to expel a long-term resident solely where he/she constitutes an actual and sufficiently serious threat to public policy or public security.
…
3. Before taking a decision to expel a long-term resident, Member States shall have regard to the following factors:
(a) the duration of residence in their territory;
(b) the age of the person concerned;
(c) the consequences for the person concerned and family members;
(d) links with the country of residence or the absence of links with the country of origin.
…’
11. Chapter III of Directive 2003/109, entitled ‘Residence in the other Member States’, comprises Articles 14 to 23. Its purpose is to lay down the conditions applicable to the exercise of the right of a person with long-term resident status to reside in Member States other than the one which granted him or her such status, in order to contribute, in accordance with recital 18 of that directive, to the effective attainment of an internal market as an area in which the free movement of persons is ensured.
12. Article 14(1) of that directive provides:
‘A long-term resident shall acquire the right to reside in the territory of Member States other than the one which granted him/her the long-term residence status, for a period exceeding three months, provided that the conditions set out in this chapter are met.’
13. Article 15 of that directive, headed ‘Conditions for residence in a second Member State’, provides, in the first subparagraph of paragraph 1:
‘As soon as possible and no later than three months after entering the territory of the second Member State, the long-term resident shall apply to the competent authorities of that Member State for a residence permit.’
14. Article 22 of Directive 2003/109, headed ‘Withdrawal of residence permit and obligation to readmit’, provides:
‘1. Until the third-country national has obtained long-term resident status, the second Member State may decide to refuse to renew or to withdraw the resident permit and to oblige the person concerned and his/her family members, in accordance with the procedures provided for by national law, including removal procedures, to leave its territory in the following cases:
(a) on grounds of public policy or public security as defined in Article 17;
(b) where the conditions provided for in Articles 14, 15 and 16 are no longer met;
(c) where the third-country national is not lawfully residing in the Member State concerned.
2. If the second Member State adopts one of the measures referred to in paragraph 1, the first Member State shall immediately readmit without formalities the long-term resident and his/her family members. The second Member State shall notify the first Member State of its decision.
3. Until the third-country national has obtained long-term resident status and without prejudice to the obligation to readmit referred to in paragraph 2, the second Member State may adopt a decision to remove the third-country national from the territory of the [European] Union, in accordance with and under the guarantees of Article 12, on serious grounds of public policy or public security.
In such cases, when adopting the said decision the second Member State shall consult the first Member State.
When the second Member State adopts a decision to remove the third-country national concerned, it shall take all the appropriate measures to effectively implement it. In such cases the second Member State shall provide to the first Member State appropriate information with respect to the implementation of the removal decision.
…
4. Removal decisions may not be accompanied by a permanent ban on residence in the cases referred to in paragraph 1(b) and (c).
5. The obligation to readmit referred to in paragraph 2 shall be without prejudice to the possibility of the long-term resident and his/her family members moving to a third Member State.’
15. Article 3 of Directive 2008/115 is worded as follows:
‘For the purpose of this Directive the following definitions shall apply:
…
2. “illegal stay” means the presence on the territory of a Member State, of a third-country national who does not fulfil, or no longer fulfils the conditions...
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