Ad Hoc Query on including time of absence from the territory and no valid residence permit into long-term residence
This ad hoc query seeks to establish which stay qualifies as a continuous stay under Article 4(3) of the Long-Term Residents Directive and whether an absence from a territory on which a person does not have a valid residence permit interrupts the continuity of the stay under this directive. It also examines whether EMN Member and Observer Countries accept longer periods of absence than those provided for in the directive.
Background:
Article 4(3) of Council Directive 2003/109/EC stipulates that periods of absence from the territory of the Member State shall not interrupt the duration of residence and shall be taken into account for its calculation if they are not longer than 6 consecutive months and do not exceed 10 months in total during the 5 years. It further stipulates that Member States may accept that a longer period of absence shall not interrupt the duration of residence.
Slovenia studies the adequacy of the transposition and current implementation of the provision and is interested in the implementation and practice of the EMN Member and Observer Countries.
Respondents:
22 EMN Member and Observer Countries (including BE) provided a public answer to this ad hoc query.
Findings:
A preliminary analysis of the results of the ad hoc query shows that:
- Out of 22 respondents, 16 EMN Member Countries (including BE) consider that the Article does not apply in the situation when the third-country national, during the time of his absence, does not have a legal residence in the country. If the third-country national has left the territory, and during this period, the residence permit expires, there was no legal residence. This period is thus not to be considered in the legal and continuous residence for five years.
- 6 EMN Member and Observer Countries (BG, FR, LV, PL, RS, SI), would still apply the Article in the situation when the third-country national, during the time of his absence, does not have a legal residence in the country. Most countries don't require any additional condition to also include this type of absence. Only LV imposes an additional condition as it requires that the time between permits does not exceed 3 months. PL lays down the specific situations (including inter alia professional duties, special personal situations, internship, or classes) in which a foreigner can interrupt his/her stay, whether or not he/she has a residence permit during this time.
- 9 respondents (CZ, DE, EE, ES, FI, LT, LU, LV, RS) accept longer periods of absence. For most of these countries, the derogations from the 6 consecutive months limit are justified by serious reasons like pregnancy or illness, or for professional or study reasons. EE and RS do not apply an exhaustive list.
For further details, please read the compilation of answers above.