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IMMIGRATION

‘Discrimination’: Austria’s benefit cuts for immigrants ‘go against free movement’

Benefit cuts imposed by Austria on immigrants whose children live in their country of origin contradict EU law becasue they constitute "discrimination on the ground of nationality", a legal adviser at the bloc's top court said on Thursday.

A picture of the sign and logo of the Court of Justice of the European Union in Luxembourg
A picture of the sign and logo of the Court of Justice of the European Union in Luxembourg on January 13, 2020. (Photo by JOHN THYS / AFP)

The opinion is the latest legal hitch to befall a series of measures — imposed by a previous government that included the far-right — which sought to restrict benefit payments to foreigners.

Richard de la Tour, advocate general of the Court of Justice of the European Union (CJEU), said the cuts to child benefits constituted “an infringement of the right of free movement conferred on EU citizens”.

The specific case relates to reforms that came into effect in 2019 which indexed child benefits according to where the recipient’s children live.

This meant reduced payments for tens of thousands of eastern Europeans who work in Austria — notably in the care sector — but whose children remain in their countries of origin.

The advocate general’s advice is not binding on the court but it is seen as influential.

De la Tour found that the cuts were “indirect discrimination on the ground of nationality which is permissible only if it is objectively justified”, and that Austria had failed to do so.

They contravened the principle that “if a migrant worker pays social contributions and taxes in a member state, he or she must be able to benefit from the same allowances as nationals of that state”, he added.

In 2020 the European Commission, supported by six eastern member states, brought an action before the CJEU claiming Austria was “failing to fulfil its obligations”.

Former Austrian Chancellor Sebastian Kurz had said he hoped the cuts would save 114 million euros ($130 million) a year but in 2019 they recouped 62 million euros.

The former coalition also introduced benefit cuts for immigrants who failed to reach a certain level of German, but those measures were subsequently overturned by the Austrian courts.

The government that introduced in the cuts was brought down in a corruption scandal in May 2019.

It included the centre-right Austrian People’s Party (OeVP), which is still the senior partner in the current government.

However their current coalition partners, the Greens, opposed the benefit cuts at the time.

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EUROPEAN UNION

How long do non-EU citizens have to be present in EU to avoid losing residency status?

How long do non-EU citizens have to be present in the European Union to make sure they don’t lose the status of long-term resident? For the first time the Court of Justice of the European Union has given an answer. 

A banner publicising the 'Next Generation EU' campaign and with an EU flag
A banner publicising the 'Next Generation EU' campaign and with an EU flag fluttering near by at the European Commission headquarters, in Brussels on October 13, 2021. (Photo by Aris Oikonomou / AFP)

Being physically present in the EU for a few days in a 12-month period is enough to avoid losing permanent residency, EU judges said.

And once long-term residence is acquired, “it is not necessary for the person concerned to have his or her habitual residence or centre of interests in the European Union,” the Court has specified. 

What’s the background?

Under the EU directive entered into force in 2006, non-EU citizens can apply for long-term resident status once they have lived legally in a country of the European Union for an uninterrupted period of five years. 

To get the status, they need to have a stable source of income and meet their own needs and those of their family members without relying on social assistance. They also need to have health insurance and, if required at the national level, prove they are integrated in society, for instance by knowing the language or the fundamental principles of the country. 

Once acquired, long-term residence grants rights similar to EU citizens in terms or work, education, social security and other welfare benefits. In addition, it should make it easier to move for work or study to other EU countries, although there are still many gaps in the way the directive is applied at the national level.

The status can also be lost if the person concerned is absent from the EU for 12 consecutive months (EU countries can allow longer periods or consider exceptional circumstances). 

But what counts as presence to break the 12-month period and maintain the status? The initial directive did not specify it and only on Thursday the EU Court of Justice provided a clarification. 

Why was the clarification needed?

The case was related to a Kazakh citizen living in Austria. The head of government of the Vienna Province (Landeshauptmann von Wien) had refused his application to renew the long-term residence permit because, in the previous 5 years, he had been present in the EU territory for only a few days a year. 

He then challenged the decision with the local administrative court (Verwaltungsgericht), requesting an interpretation of the rules to the Court of Justice of the EU. 

The administrative court asked the EU Court to clarify whether any physical presence, even of a few days, would be sufficient to prevent the loss of status, or whether an EU member state could set additional conditions, such as having habitual residence or a centre of interests in the country.

And what was the ruling?

The EU Court of Justice ruled this week that “to prevent the loss of long-term resident status” it is sufficient to be present in the EU for a few days in the 12 months following the start of the absence. 

This interpretation of the directive will now have to be followed by national administrations and courts EU-wide (except in Denmark and Ireland, which have opted out from this directive. It is possible for EU countries to opt out from EU directives on justice and home affairs but not on the internal market.)

The EU judges noted that the directive “seeks to ensure the integration of third-country nationals” and since they have already “demonstrated that they are settled in that member state”, they are, in principle, “free, as are EU citizens, to travel and reside, also for longer periods, outside the territory of the European Union” without losing their status. The rule applies as long as they maintain a link with the EU, which means they are not absent for more than 12 consecutive months, the Court added. 

Steve Peers, professor of EU law, human rights law and world trade law at the University of Essex, in England, said “this is the first judgment on this aspect of the loss of status due to absence.”

Loss of EU status doesn’t mean loss of national residency

Professor Peers also explained that when a person loses EU long-term residency status, it is still possible to maintain national status, “either where they hold that status in parallel and there are not sufficient grounds to remove it, or where they are allowed to stay under national law even though they have lost the EU status.”

Of the 23 million non-EU citizens living in the European Union, more than 10 million had long-term residence in 2019, according to the EU statistical office Eurostat.

“These residents are close to acquiring citizenship in the countries where they reside” and “they have got rights to education and vocational training, social security, tax benefits and access to procedures for obtaining housing,” said Maria Luisa Castro Costaluz of Costaluz Lawyers, a law firm in Algeciras specialized in the rights of English-speaking foreigners in Spain. 

“It seems sensible that the long-term status provides to them a better profile in regards to mobility too,” she commented.

And what about for Britons covered by Withdrawal Agreement?

According to legal experts, the Court’s decision would also extend to people covered by the agreement on the UK withdrawal from the European Union. 

While the period of absences accepted for long-term residents is up to 12 months, however, under the Brexit agreement it is up to 5 years for those covered by the Withdrawal Agreement. 

“If the judgment applies by analogy, then it should follow that it should be adapted to the period of absence. So a few days in every five years,” Professor Peers said. But then he added: “Of course no one should act on this assumption until the EU court has confirmed it.” 

The article is published in cooperation with Europe Street News, a news outlet about citizens’ rights in the EU and the UK.

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