Council of Europe: Recommendation Rec(2000)15 concerning the security of long-term migrants

COUNCIL OF EUROPE
COMMITTEE OF MINISTERS

Recommendation Rec(2000)15

of the Committee of Ministers to member states

concerning the security of residence of long-term migrants

(Adopted by the Committee of Ministers

on 13 September 2000

at the 720^th meeting of the Ministers’ Deputies)

The Committee of Ministers, under the terms of Article 15.b of the Statute of the Council of Europe,

Considering that the aim of the Council of Europe is to achieve a greater unity between its members;

Bearing in mind the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) and, particularly, Article 3 prohibiting torture, inhuman or degrading treatment or punishment and Article 8 embodying the protection of private and family life, as well as the relevant case-law of the European Court of Human Rights;

Considering that security of residence of long-term immigrants is not only vital to their integration but also to social stability in the member states;

Affirming the importance of acquisition of nationality of the country of residence by long-term immigrants in order to facilitate their integration into society;

Considering that for the purpose of securing the integration process, common principles for the member states should be defined;

Having regard to its Recommendation No. R (84) 9 on second-generation migrants;

Having regard to Assembly Recommendation 1082 (1988) on the right of permanent residence for migrant workers and members of their families and to Assembly Recommendation 841 (1978) on second generation migrants;

Considering that important rights have been extended to migrants and the members of their families under the European Convention on Establishment (1955), the European Convention on the Legal Status of Migrant Workers (1977), the Convention on the Participation of Foreigners in Public Life at Local Level (1992), the Revised European Social Charter (1996), and the European Convention on Nationality (1997),

Recommends that the governments of member states apply the following principles in their law and administrative practice:

1. As regards the acquisition of a secure residence status for long-term immigrants

. Each member state should recognise as a "long-term immigrant" an alien who:

i. has resided lawfully and habitually for a period of at least five years and for a maximum of ten years on its territory otherwise than exclusively as a student throughout that period; or

ii. has been authorised to reside on its territory permanently or for a period of at least five years; or

iii. is a family member whose residence on the territory of the member state has been authorised for a maximum period of five years for the purpose of family reunification with a national of the member state or an alien as defined in sub-paragraphs i and ii above.

Each member state should have the option to add further conditions to those mentioned under sub-paragraph i above. Each member state should also have the option to extend the definition of a "long-term immigrant" to other categories of aliens.

A long-term immigrant as defined in paragraph a above should be entitled to a secure residence status in the member state concerned and, in particular, to the renewal of the relevant documents.

A long-term immigrant should enjoy no less favourable treatment than that enjoyed, in accordance with the legislation of the member state concerned, by nationals of that member state with regard to:

- access to employment and other economic activities, with the exception of statutory professions;

- working conditions;

- right of association;

- membership of and active and passive participation in trade unions;

- access to all forms of housing;

- social security and assistance;

- all forms of healthcare;

- schooling and vocational training;

- active and passive participation in public life at local level;

- free movement on the territory of the state of residence.

2. As regards the acquisition of nationality

Each member state should facilitate the acquisition of its nationality for long-term immigrants in accordance with its internal law.

3. As regards the conditions for losing a secure residence status

The residence permit of a long-term immigrant may only be withdrawn if:

i. a residence permit has been acquired by means of proven fraudulent conduct, false information or concealment of any relevant fact attributable to the immigrant;

ii. he or she has resided effectively outside the member state for a period of more than six months without requesting the prolongation of this period;

iii. he or she has been convicted of serious crimes;

iv. he or she constitutes a serious threat to national security.

Where the residence permit of a long-term immigrant was granted on admission to the member state for the purpose of family reunification, the status may, in addition to the grounds stated in paragraph 3.a above, be withdrawn following divorce, death or desertion if the family member has been residing in the host country for less than three years.

The renewal of a residence permit of a long-term immigrant should not be refused on the ground of short delays in the application for new residence documents.

4. As regards the protection against expulsion

Any decision on expulsion of a long-term immigrant should take account, having due regard to the principle of proportionality and in the light of the European Court of Human Rights' constant case-law, of the following criteria:

- the personal behaviour of the immigrant;

- the duration of residence;

- the consequences for both the immigrant and his or her family;

- existing links of the immigrant and his or her family to his or her country of origin.

In application of the principle of proportionality as stated in Paragraph 4.a, member states should duly take into consideration the length or type of residence in relation to the seriousness of the crime committed by the long-term immigrant. More particularly, member states may provide that a long-term immigrant should not be expelled:

- after five years of residence, except in the case of a conviction for a criminal offence where sentenced to in excess of two years’ imprisonment without suspension;

- after ten years of residence, except in the case of a conviction for a criminal offence where sentenced to in excess of five years of imprisonment without suspension.

After twenty years of residence, a long-term immigrant should no longer be expellable.

Long-term immigrants born on the territory of the member state or admitted to the member state before the age of ten, who have been lawfully and habitually resident, should not be expellable once they have reached the age of eighteen.

Long-term immigrants who are minors may in principle not be expelled.

In any case, each member state should have the option to provide in its internal law that a long-term immigrant may be expelled if he or she constitutes a serious threat to national security or public safety.

5. As regards administrative and judicial guarantees

Any decision on withdrawal of a residence permit of a long-term immigrant should take account, having due regard to the principle of proportionality and in the light of the European Court of Human Rights’ constant case-law referring to Article 8 of the European Convention of Human Rights, of the following criteria:

- personal behaviour of the immigrant;

- duration of residence;

- consequences for both the immigrant and his/her family;

- existing links of the immigrant and his/her family to his/her country of origin.

Before deciding on the expulsion of a long-term immigrant, the competent authority should consider alternative measures (for example, by replacing the permanent residence permit with a non-permanent one).

Where a decision is taken to withdraw the residence permit or not to renew a residence document of a long-term immigrant or to expel a long-term immigrant, he or she should be entitled to the same legal protection provided for in the legislation of the member state as is normally accorded to nationals of that state in administrative procedures.

In case of an expulsion order, procedural guarantees for a long-term immigrant should in particular include the right to a fair hearing and to be given a reasoned decision. They should also include the right to appeal to, and to be represented for that purpose before an independent administrative authority or a court competent to review the case on its merits and on the conformity of the decision with the law. If national legislation does not provide for a suspensive effect of the appeal, the request to suspend the execution of any expulsion decision should be duly examined with regard to the necessities of national security.

6. Final clauses

This recommendation is without prejudice to the option open to a member state to grant a more favourable legal status to long-term immigrants.

This recommendation does not affect the rights of refugees within the meaning of the Geneva Convention on the status of refugees of 28 July 1951, lawfully residing in the member state.

Member states not having yet done so are encouraged to ratify the European Convention on Establishment (1955), the European Convention on the Legal Status of Migrant Workers (1977), the Convention on the Participation of Foreigners in Public Life at Local Level (1992), the Revised European Social Charter (1996), and the European Convention on Nationality (1997).

Appendix to Recommendation Rec(2000)15

Explanatory memorandum

Ad Section 1

(Acquisition of secure residence status of long-term immigrants)

Paragraph 3 contains provisions as embodied in the European Convention on the Legal Status of Migrant Workers (Articles 13, 14, 16, 18, 19 and 28), the European Convention on Establishment (Articles 1, 10, 17, 18 and 20), the (Revised) European Social Charter (Articles 18 and 19), the Convention on the Participation of Foreigners in Public Life at Local Level (Articles 3 and 6) and in Protocol No. 4 to the European Convention on Human Rights (Article 2).

However, Paragraph c should be applied to all immigrants, residing lawfully and habitually on a long-term basis in a member state, as defined in paragraph 1, instead of only to persons who are "migrant workers" within the meaning of Article 1 of the European Convention on the Legal Status of Migrant Workers, or nationals of the Contracting Parties to the European Convention on Establishment, lawfully residing in the territory of another Party, or nationals of the Contracting Parties to the (Revised) European Social Charter, or "foreign residents" within the meaning of Article 2 of the Convention on the Participation of Foreigners in Public Life at Local Level.

The right to free movement on the territory of the State of residence, as embodied in paragraph c, should be interpreted within the meaning of Article 2 of Protocol No. 4 to the European Convention on Human Rights.

As concerns paragraph I.1. Greece reserves the right to apply national law. The residence authorisation referred to in paragraph I.a.ii. corresponds in Belgium to the authorisation of establishment. Regarding the same paragraph, the United Kingdom reserves the right to apply national law. Spain reserves the right to apply national law with regard to the entire Section I. The Republic of San Marino also reserves to apply in this matter its internal law and practice.

With regards to paragraph I.c and the active and passive participation in public life at local level as well as the free movement on the territory of the State of residence, Switzerland reserves the right to apply the internal law of the Federal State.

In conformity with the national law, Germany only regards persons who hold a valid residence permit as aliens residing lawfully on the territory.

Ad Section 2

(Acquisition of nationality)

Further to Article 6 paragraphs 3 and 4 European Convention on Nationality, each member state should facilitate the acquisition of its nationality for all immigrants residing lawfully and habitually on a long-term basis in a member state, as defined in Section I paragraph a.

Examples for measures of facilitating the acquisition of nationality are given in the Explanatory Report to Article 6 paragraph 4 European Convention on Nationality.

The Republic of San Marino reserves the right to apply in this matter its internal law and practice.

Ad Section 3

(Conditions for losing secure residence status)

In addition to the provisions of Article 9 paragraph 5 European Convention on the Legal Status of Migrant Workers, Section 3 of the Recommendation further specifies the grounds allowing the withdrawal of a residence permit.

However, Section 3 paragraphs a) – c) should be applied to all immigrants residing lawfully and habitually on a long-term basis in a member state, as defined in Section I paragraph a, instead of only to persons who are "migrant workers" within the meaning of Article 1 European Convention on the Legal Status of Migrant Workers.

Some member states in their national law or practice allow longer periods of residence abroad than one year (paragraph 1 subparagraph ii) in order to facilitate the re-integration of long-term immigrants in their country of origin in case of voluntary return to that country.

As regards paragraph 3.a.iii, Switzerland reserves the right to apply additional reasons for the loss of the residence permit. Regarding 3.a, Switzerland reserves the right to apply this provision in case of offence against national security.

As concerns paragraph 3.b., the United Kingdom reserves the right to apply its internal law, which provides that divorce, death or desertion can affect the immigration status of family members resident in the United Kingdom for family reunification purposes where the persons concerned were resident only in a temporary capacity. Switzerland considers "permanent residence" as corresponding to the authorisation of establishment.

Ad Section 4

(Protection against expulsion)

In addition to Article 4 Protocol No. 4 to the European Convention on Human Rights, Article 3 paragraphs 1 and 3 European Convention on Establishment and Article 19 paragraph 8 Revised European Social Charter, Section 4 of the Recommendation further specifies the grounds for expulsion.

However, Section 4 paragraphs a to d should be applied to all aliens residing lawfully and habitually on a long-term basis in a member state, as defined in Section I paragraph a, instead of only to nationals of the Contracting Parties to the European Convention on Establishment lawfully residing in the territory of another Party, or nationals of the Contracting Parties to the Revised European Social Charter.

Due regard has also to be paid to the relevant provisions in the United Nations Convention on the Rights of the Child.

Spain reserves the right to apply the national law in relation to Section 4. Denmark reserves the right to apply its national legislation with regard to paragrpahs 2 and 3.

Concerning section 4b, Switzerland reserves the right to apply national law.

Concerning the possibility of an expulsion after twenty years of residence (paragraph 4.b. - second sentence), the United Kingdom reserves the right to apply national law.

Concerning the protection against expulsion of long-term immigrants who are minors, Norway, Switzerland and the United Kingdom reserve the right to apply national law taking due account of the interest of minors and second generation immigrants.

Ad Section 5

(Administrative and judicial guarantees)

In addition to Articles 1 and 2 Protocol No. 7 to the European Convention on Human Rights, Article 3 paragraph 2 and Article 7 European Convention on Establishment and Article 19 paragraph 7 (Revised) European Social Charter, Section V of the Recommendation further specifies procedural guarantees.

However, Section V paragraphs a – d should be applied to all aliens residing lawfully and habitually on a long-term basis in a member state, as defined in Section I paragraph a, instead of only to nationals of the Contracting Parties to the European Convention on Establishment lawfully residing in the territory of another Party, or nationals of the Contracting Parties to the Revised European Social Charter.

Spain reserves the right to apply national law with regard to Section 5 as a whole.

Greece reserves the right to apply its national law with regard to paragraph c.

Concerning the possibility to suspend the execution of any expulsion decision referred to in paragraph 5.d. last sentence, France, Greece and Belgium reserve the right to apply national law.