Chapitre I

CITOYENNETE ET DROITS FONDAMENTAUX

1. Généralités

EUROPEAN UNION MIGRANTS' FORUM

rue de Trèves 33, B-1040 Bruxelles
Tél: 32 2 230 14 14 - 32 2 230 24 12; Fax: 32 2 230 14 61

1° Third Country Nationals in the European Union

Nationals from non member states who are lawfully resident in the European Union (third country nationals) do not enjoy the full rights accorded under Community law to citizens of the Union.

In particular, third country nationals have nor right to move or reside freely in the Union and no right to vote or stand as a candidate in municipal or European Parliamentary elections. In other words, the Union treats third country nationals as second class citizens. This undermines the Union's expressed commitment to the elimination of racial discrimination, racism and xenophobia, and the integration of settled migrants.

In White Paper on European Social Policy (COM(94) 33 of 27.7.1994) the European Commission stresses "that action in the area of integration policy remains an essential element of the wider need to promote solidarity and integration in the Union. To achieve this, integration policies must be directed in a meaningful way towards strengthening their rights relative to those citizens of the member states."

The white paper recognises that "an internal market without frontiers in which the free movement of persons is ensured logically implies the free movement of all legally resident third country nationals for the purpose of engaging in economic activities".

According to Eurostat in the territory of the member states (but including also Norway, Iceland and Liechtenstein) approximately 2,8% of the population are third country nationals. This will include family members of citizens of the Union as well as third country nationals who have been born and have lived in the Union all their lives. It is unjust and wrong that they should be excluded from both the economic benefits of free movement rights in the Union and the political rights conferred on citizens of the Union, specifically the right to vote in municipal and European Parliament elections.

Equality could be achieved in a number of different ways, for instance liberalisation of naturalization across the Union or the granting of citizen ship of the Union to Europe's third country nationals.

As regards a harmonisation of naturalization laws in the member states, the criteria for granting citizenship varies considerably from one member state to another. Some member states permit admitted immigrants to naturalize after five years residence. Others require double this period of residence as a minimum and impose additional stringent requirements.

In international law states have the right to determine who are their nationals. In a declaration attached to the European Union Treaty, the Union affirmed its adherence to that principle stating that "the quest whether an individual possesses the nationality of a member state shall be settled solely by reference to the national law of the member state concerned".

Most member states are, understandably, reluctant to relinquish their national sovereignty and to bring these matters within Community competence. For these reasons it may not be realistic to hope that equal rights for third country nationals can be achieved across the Union by easier access to naturalization in individual member states.

The European Union Treaty introduced a new concept, namely that of citizenship of the Union. One of its key features is that it compliments rather than replaces an individual's existing nationality. Therefore citizenship of the Union could more easily embrace third country nationals resident in the Union without requiring them to possess nationality of an individual member state.

Union citizenship includes three rights which it would extend to the Union's third country nationals: the right to move and reside freely within the member states; the right to vote and stand as a candidate in European Parliament elections; the right to be protected by the diplomatic and consular authorities of any member states when outside the Union territory. All these are rights which should properly be extended to the Union third country nationals.

An amendment would clarify at least some of the current uncertainty of Article 8A EC, the right to move and reside, and would give added value to the concept of citizenship of the Union. Further, it would mean that an extension of citizenship to the Union to lawfully resident third country nationals would provide true equality of treatment in the fundamental areas of application of Community law.

Citizenship of the Union should be extended automatically to all third country nationals who have been lawfully resident in the Union for a period of five years or more. The period of five years is proposed as this is the period used in the national law of a number of member states for the purpose either of conferring a permanent resident status or eligibility to naturalise. A period of five years is also employed in Article 6(1) of Regulation 68/360 regarding the validity of residence permits for migrant EC nationals.

As the policy purpose of the amendment is to facilitate the integration of third country nationals in the Union it is important that it applies to those third country nationals whose long term future is within the Union. Accordingly, an exception to the five year rule may be appropriate in respect of third country national students whose only reason for residence in the Union is the pursuit of their studies.

Acquisition of citizenship of the Union by reason of lawful residence in the Union is proposed to be the only route available to third country nationals outside the acquisition of nationality of a member state. No provision would be appropriate for the acquisition of citizenship of the Union by descent (ie to children of a third country national born outside the territory of the Union). Further, in the interests of certainty and equality of treatment, it would not be helpful to provide for automatic loss of citizenship of the Union where a third country national leaves the Union after acquisition of citizenship in order to reside outside the territory of the Union.

Already, Community law recognises that Community rights may be acquired by individuals living and working outside the Union by reason of their or their employers' connection with the Union ( Aldewereld C-146/93 7.7.94). The Community has expressed its commitment to liberalisation of international trade, most recently in the General Agreement on Trade in Services (GATS annexed to the Agreement establishing the World Trade Organisation). To place the Union third country nationals in a position whereby the exploitation of the benefits of this and other similar agreements would jeopardise their ability to return to the Union would be contrary to the purpose of the proposed amendment.

As the concept of citizenship of the Union was introduced with nationals of the member states in mind, it is not clear from its wording what the right to move and reside within the territory of the member states entails. At the moment one aspect of this question is before the European Court of Justice ( Ex-Parte Adams ).

In order for the concept to be effective in conferring on the Union long term resident third country nationals equality in Community law, consequential amendments to the treaty need to be made specifically in the context of Tile III: Free Movement of Persons, Services and Capital. The right to move from one member state to another to seek or take work, establish oneself in business or seek or provide services is at the moment confined to nationals of the member states (Articles 48 to 66 EC). These provisions should be amended to apply to citizens of the Union.

Accordingly:

a) Article 8A should be amended as follows:

"Citizenship of the Union is hereby established. Every person holding a nationality of a member state or who has been lawfully residing in the territory of a member state for five years shall be a citizen of the Union".

b) Articles 48 to 66 EC should be amended to apply equally to Europe's third country nationals who have been lawfully resident in the Union for a least five years.

2° Clear Community Competence to Fight Discrimination due to Race.

The Community should have the necessary authority to prosecute authors of racist crimes and to safeguard the right of appeal, the right of legal advice, and the right to claim damages for victims of racial acts and discrimination. In this vein, we support The Starting Point proposal which has been drafted by a coalition of non-governmental organisations of which the Migrant's Forum is a member.