1 Analysis and positions on the policy and proposed bill of the Cyprus Government for the transposition of Directive 2003/109/ΕC (long term residents), Directive 2003/86/EC (family reunification) and Directive 2002/90/EC (facilitation of unauthorised entry) CONTENTS Page Directive 2003/109/EC Migration policy, model and reality in the Republic of Cyprus 2 The real background of the transposition of Directive 2003/109/EC in the 3 Republic of Cyprus Comments on the government s bill for the transposition of Directive /109/EC Scope of implementation 6 Conditions for acquiring long term resident status 7 Length of residence 7 Sufficient and stable means and sickness insurance 8 Terms of integration 10 Examination procedures and fees for the submission of the application for 12 long term resident status Fees for the submission of applications 13 Transitional provisions 18 Article 18ΙΣΤ Protection against expulsion 19 Directive 2003/86/EC Comments on the Bill regarding the transposition of Directive 2003/86/EC 21 on the right of third country nationals to family reunification General Framework 21 The position of KISA on articles 18KH 18ΛΗ of the Bill 21 Family reunification of third country nationals in general 21 Family Reunification of Refugees 26 Directive 2002/90/EC Comments on the provisions of the government bill for the transposition of 28 Directive 2002/90/EC defining the facilitation of unauthorised entry, transit and residence Judicial guarantees and judicial procedures 29 Annexes P.O.Box 22113, 1517 Λευκωσία, Tel: , Fax: , Website:
2 Analysis and positions of KISA Action for Equality, Support, Antiracism- on the policy and proposed bill of the Cyprus Government on the third country nationals who are long term residents (Directive 2003/109/ΕC), the right of third country nationals to family reunification (Directive 2003/86/EC) and the facilitation of unauthorised entry, transit and residence of third country nationals (Directive 2002/90/EC) KISA Action for Equality, Support and Antiracism, is a non-governmental organisation, which has been working intensely in the areas of migration, asylum and racism for the last eight years. Its activities and actions focus on two domains: (a) social intervention, with the aim of sensitising the state and society at large to the above areas, and (b) the operation of a migrant and refugee centre offering free advice and information services to refugees, migrants and asylum seekers. 1. Migration policy, model and reality in the Republic of Cyprus The Republic of Cyprus started receiving migrants on a mass scale in 1991, following a decision of the Council of Ministers. Today, there are approximately one hundred thousand migrants, asylum seekers or refugees living in Cyprus. About 25% of them are without papers (without a legal residence permit). The Republic of Cyprus has opted for the temporary work model for migrant workers, known as guestworkers concept. Under this model, residence permits are entirely linked to respective employment permits, in specific sectors of the economy and areas of work and to specific employers, under working conditions strictly defined by the government. The maximum time of stay and employment in Cyprus (currently set at 4 years) is periodically set by the Ministerial Committee on Employment (consisting of the Ministers of the Interior, Labour and Social Insurance, Commerce, Industry and Tourism, and of Justice and Public Order), a body that is not established under any law. This particular model of migration presents, according to our experience, very serious weaknesses. The migrants position is extremely vulnerable vis-à-vis both the state and the employers, making it almost impossible to protect their rights, which are very often violated. The model of temporary stay of migrants in Cyprus is used as an excuse for the total lack of any integration policies and measures, which are in any case very difficult considering this particular model of immigration. As a result, the Cypriot government has never established or developed integration programmes for migrants (e.g. language courses or classes to inform
3 3 migrants about the socio-economic, cultural and political situation in Cyprus), like those developed in other EU member states. Finally, the inability to effectively protect the rights of migrants in combination with the very short residence period set by the authorities, constitute the main factor for the steady increase in the number of migrants without papers and of asylum seekers. As a result, the overwhelming majority of migrants are excluded socially, economically and politically, and they are subject to exploitation and discrimination in all spheres of life (work, housing, social welfare benefits, education, etc). The absence of an integrated and well-coordinated migration policy, which would also include the most pertinent aspect of the integration of migrants into the Cypriot society, has been criticized many times by international organisations 1. The lack of an integration policy of migrants in combination with the particular migration model that Cyprus has adopted, foster, in KISA s opinion, racism and discrimination against migrants. 2. The real background of the transposition of Directive 2003/109/EC in the Republic of Cyprus Following its accession to the European Union, the Republic of Cyprus had to inevitably harmonise its legislation, structures and systems to the acquis communautaire, and more specifically to Directive 2003/109/EC regarding the status of third country nationals who are long term residents in Cyprus, a Directive whose rationale and aims directly oppose the aforementioned policy and model of immigration. KISA, having carefully evaluating the actions and decisions which the Republic of Cyprus has taken until now, concerning the transposition and implementation of Directive 2003/109/EC, is of the opinion that these make the recognition of the status in question particularly difficult, if not impossible altogether. Furthermore, they hinder the practice of the rights emanating from it for the long-term resident migrants in Cyprus. The status and rights it 1 - Reports of the European Commissioner for Human Rights of the Council of Europe: The Commissioner- CommDH(2004)2/ 12 February 2004, The Commissioner CommDH (2006)12/ 19 March Report of the European Commission against Racism and Intolerance, CRI (2001) 35, Second report on Cyprus, Adopted on 15 December 2000 made public on 3 July American Foreign Ministry Report on Human Rights, Country Reports on Human Rights Practices-2005, Released by the Bureau of Democracy, Human Rights, and Labor, March 8, 2006
4 4 provides for, constitute, according to the Directive, one of the measures of the declared policy of the EU regarding the integration of immigrants. Until March 2005, the maximum period of residence and employment of migrant workers in Cyprus was set at 6 years. As this policy was, however, somewhat flexible, a large number of migrants had until then resided in Cyprus for more than 5 years, specified by the Directive for the long term residents. In March 2005, and after the entry into force of the Long Term Residence Directive, the Ministerial Committee on Employment decided to reduce the maximum period of residence to 4 years. It also decided that the resident permits of migrants who, due to the previous policy, had already been in Cyprus for a period longer than 5 years should not be renewed. A direct result of this decision was that affected migrants were compelled to remain in Cyprus without the required residence permit and to claim their rights through legal action, despite their financial difficulties, in the course of which in many cases they fell prey to financial exploitation from various professional groups such as lawyers. This situation was made worse due to the fact that the Cypriot Government did not inform migrants either about the new policy or about its intentions regarding the implementation of Directive 2003/109/EC. On the contrary, in a press announcement dated 30 June 2005 (attached as Annex I), the government stated that since it was not obliged to implement the Directive before 13 January 2006, it intended to ignore all applications submitted by migrants either directly or through law offices for acquiring the long term residence status. At the same time, the competent public services told both employers and migrants, who asked for information about the Directive as well as the possibility of renewing their temporary residence permit, that the government had no intention of implementing the Directive since most member states did not intend to transpose it and, therefore, migrants should leave Cyprus immediately. It is worth noting that the affected migrants were not even given the opportunity to apply for renewal of the temporary residence and work permits, since the competent authorities would not even receive any applications. KISA believes that the change alone in the policy of the government while Directive 2003/109/EC was already in force, concerning the reduction of the time of residence of migrants and the non-renewal of the temporary residence permits of those who have already completed the required five years of residence, violates Directive 2003/109/EC according to the case law of the European Court of Justice (ECJ). Directives have legal effects and thus bind the member states as to their intended result, from the date of their publication (article 249, third paragraph, EC Treaty). The ECJ, taking
5 5 into consideration the principle of Community solidarity laid down in Article 10 of the EC Treaty, developed in its case law that member states must refrain from taking any measures liable seriously to compromise the result prescribed in a directive even during the period prescribed for transposition of that directive (prohibition on frustrating the objective of a directive) (Case C-129/96 Inter-Environment Vallonie, paragraphs 43-45). From articles 249 EC and 10 EC, according the case law of the ECJ a positive obligation is derived for member states to take all appropriate measures, whether general or particular, that is to say, to do everything necessary, to ensure compliance with the requirements of Community law. Where directives require implementation, that obligation under Community law as to the result to be achieved already exists upon their entry into force (Cases C-397/01 to C403/01 Pfeiffer and others, paragraph 110). The obligation to take all measures necessary to achieve the result prescribed by a directive is binding on all the authorities of Member States including, for matters within their jurisdiction, the courts. (Case 14/83 von Colson and Kammann, paragraph 26, Case C-15/04 Koppensteiner, paragraph 33 etc). It is evident from the above that the Cypriot Government, through its actions and decisions, has violated the obligations emanating from the Treaty Establishing the European Community as well as the case law of the ECJ and seriously jeopardised the result prescribed by the long term residence Directive, which, according to its Preamble, its the integration of third country nationals and the granting to those persons rights comparable to those of the EU citizens. After the deadline of the transposition of the Directive and following intense pressure by NGOs and other bodies of civil society, the government decided to proceed to the transposition of the Directive in question by modifying the existing Aliens and Immigration law. It is worth noting that, for more than a year, the competent Ministry had at its disposal a draft bill for enacting a new Aliens and Immigration law, which would incorporate the acquis communautaire in the field of migration and which would also modernize the relevant legal framework. Nevertheless, it chose to proceed with the amendment of the existing law which is dated back to It is further noted that, according to articles in the press, in an accompanying note for submitting the bill to the House of Representatives, the competent Ministry refers to the serious consequences that the intended law will bring onto Cypriot society, such as the adverse effects on the quality of the services provided by the state to its citizens, the adverse effects and instability in the labour market for the citizens (e.g. increase in unemployment levels ), the adverse consequences οn the social welfare system, the public
6 6 assistance and social insurance funds, the state housing schemes, scholarship schemes and other state sponsorships, as well as on the demographic character of the Republic. (Press report attached as Annex II.) What is even more regrettable is that these serious consequences were established, according to the Ministry itself, arbitrarily and not based on any documented research. KISA is of the opinion that official approaches of this kind by the competent Ministry, especially in matters of integration of migrants, demonstrate its negative approach to migration in general. Moreover, they are unacceptable, not only because they do not correspond to reality but also because they contribute to further fostering the xenophobic and racist attitudes prevalent in Cypriot society, which are confirmed by different reports of international organizations Comments on the government s bill for the transposition of Directive 2003/109/EC At the end of March 2006, the Cypriot government submitted the aforementioned bill, (attached as Annex III), to the House of Representatives, without any consultation with the representatives of the migrant communities or with civil society organisations. In KISA s opinion, the bill s provisions, in combination with the immigration policy described above, basically violate the effective implementation of the Directive in Cyprus and render the acquisition of the relevant status for long-term resident migrants almost impossible Scope of implementation Article 18Z (2)(c) of the bill states that persons whose residence permits have been officially time limited are exempted from the long term resident status (article 3 (2)(e) of the Directive). The Government s interpretation of this provision is that on the basis of the general policy of the limitation of maximum stay of migrants, which is based on a decision of the Ministerial Committee on Employment (presently set at 4 years), the residence permits of all migrants are considered as officially limited and therefore all migrants are exempted from the scope of the Directive, irrespective of the fact that these persons have been staying in Cyprus with a legal residence permit for longer than 5 years. The above interpretation is proved by answers to applications that have already been sent by the Civil Registry and Migration Department. (Example of such a letter is attached as Annex IV.) 2 See footnote 1
7 7 It is KISA s firm belief that the aforementioned interpretation violates the Directive and renders its implementation in Cyprus impossible Conditions for acquiring long term resident status Length of residence Article 18H (1) of the bill determines that the status of the long term residents is granted to migrants who have been living legally and continuously in Cyprus for the last five years immediately prior to the filing of the application (article 4(1) of the Directive). In its effort to make the most of the above provisions of the Directive, the Cypriot Government has implemented specific policies and practices with the aim of excluding from the status of the long term resident, various categories of migrants that had already been legally residing in Cyprus for longer than 5 years, as illustrated here below: With the government s policy and practices of refusing to receive applications for renewal of temporary resident permits from people who had also applied for citizenship until the consideration of their citizenship application, as well as its failure to reply to their direct applications to the Director of the Civil Registry and Migration Department for the renewal of their temporary resident permits, these people who had resided in Cyprus legally for at least 7 years, subsequently remained in Cyprus without the required resident permit. (Example of the letter of the Department of Civil Registry and Migration is attached as Annex V.) With the decision of the Ministerial Committee on Employment of March 2005, not to renew resident permits of all migrants who had already been in Cyprus for 4 years, people who have already lived in Cyprus legally and continually for 5 years or more are left without the required residence permit. (Examples of correspondence of the Civil Registry and Migration Department are attached as Annexes VI, VII, and VIII.) In addition to the above groups of migrants that have been affected by the decision of the Ministerial Committee on Employment, another category of migrants had, before this decision, their residence permits pending, despite their long term residence in the country. This group concerns migrants whose residence permits had expired but who continued to live in the country, claiming their right to stay either through submitting applications for renewal of their residence permits or through judicial means. Despite the fact that there are decisions of the Supreme
8 8 Court condemning the state in these cases 3, the overwhelming majority of these people continue to live in Cyprus without a residence permit, due to the government s refusal to grant residence permits, and are thus deprived of the long term resident status Sufficient and stable means and sickness insurance Article 18Θ defines, apart from the duration of residence which is, according to the Directive, the main criterion for acquiring long term resident status, two further conditions: Would be applicants must have stable and regular resources for their maintenance without recourse to the state welfare system and sickness insurance. The fulfillment of these conditions should be judged, in KISA s opinion and as stated in the Directive, on the basis of the evidence provided by the applicant at the time of submitting his/her application. These conditions should not be judged based on information from the past, which is in any case assumed to have been concurrent as the applicant was a legal resident of the Republic for five years, or based on future information. Article 5(1)(a) of the Directive states that the condition for sufficient means will be evaluated in relation to their nature and regularity and that member states may take into account the level of minimum wages and pensions prior to the application for long term resident status. Minimum wages in Cyprus correspond to the wages of domestic workers (150 CYP) and are officially set by the state. Instead of this, the government has opted for other criteria for the evaluation of the sufficiency of the applicant s means, such as the cost of living, including rent in current market prices, an employment contract of at least eighteen months or of unlimited duration, housing which fulfills the general standards of safety and hygiene, financial viability of the enterprise, etc. These criteria were introduced in the bill without taking into account the current immigration policy and practices. As a matter of fact, they are in contradiction to this policy and practices, as illustrated here below: To date, migrants wages are based on a contract approved by the government (for example domestic workers wages amount to 150 CYP from 1991 until today, without a single raise). Nevertheless and despite the fact that migrants wages have never corresponded to the cost of living in the country, they have never been a 3 Decision of the Supreme Court, 26 July 2005 on Case 371/2005 (Dejic) Decision of the Supreme Court, 18 November 2005 on Case 1012/2005 (Micovic).
9 9 burden on the social welfare system. Besides, it must be particularly emphasized that the most important perhaps element pertaining to the model of immigration policy in Cyprus is the following: Due to the fact that until the present day, migrants can be employed only in specific sectors, by specific employers and under the full control of the government with regards to their terms and conditions of employment, including wages, the state of their income and resources is completely artificial. In conditions that will give migrants free access to the labour market, which would apply after the long-term residence status is granted, migrants are expected to have higher wages than those imposed on them by the system In the Cypriot labour market, rights and earnings are usually determined through the collective bargaining procedure, which means that there are normally no written employment contracts, even for Cypriot nationals. The condition, therefore, in the bill for the submission by applicants of an 18-month contract or one of unlimited duration is an exaggeration and it constitutes a deliberate potential obstacle for the acquisition of the status in question. In any case, the criterion of sufficient resources should be met only at the stage of submitting the application and not for an indefinite period of time, otherwise the provisions of the Directive regarding the rights of the long term residents would not make sense Immigrants have never been included in the state s housing policy; on the contrary they are left at the mercy of property owners, who take advantage of migrants vulnerable situation and rent housing unfit for habitation at prices much higher than their real market value. In effect, because of the prejudices and discrimination permeating Cypriot society, even when they can pay the rent for suitable housing, migrants are rejected by landlords and are thus forced to rent unsuitable for habitation housing which would not of course be rented by Cypriots. Poor housing conditions for the majority of migrants constitute one of the direct consequences of the absence of a state integration policy. It is therefore unacceptable for the government to make use of a potential provision of the Directive as a further means of depriving migrants of the acquisition of the long term resident status. In KISA s opinion, it is evident that the criteria set by the Cypriot Government for proving the fulfillment of the condition of sufficient resources exclude a large proportion of the long term resident migrants in Cyprus from acquiringthe status in question. This would not obtain had the criteria set by the Directive been followed, since migrants would have easily been able to prove that their wages correspond to the minimum wage or pension in Cyprus.
10 10 The obligation for sickness insurance, which is to cover the whole spectrum of risks normally covered for Cypriot citizens, is an obligatory provision in the Directive. Nevertheless, we wish to note that the Cypriot Government, while aware that migrants are excluded from the public health system because of their nationality, has been accepting up to now health insurance contracts for migrants which do not even cover basic diseases and tests (e.g. for women migrants these would not cover basic gynecological tests) Terms of integration Further conditions set by the government for acquiring the long term resident status are the adequate knowledge of Greek language and of the Cypriot history and civilization. Proficiency in these will be certified by the Ministry of Education and Culture after examinations to be set by the Ministry. The bill provides for a transitional clause, which gives long-term resident migrants (that is, those who come under the scope of the Directive and they meet the requirement of the 5-year legal continuous residence) but who do not meet the language and Cypriot history provisions, a period of 18 months from the enactment of the law to acquire these skills and to be able to apply for the status of the long term resident. Whilst the Cypriot Government tries, at least inside Cyprus, to present these provisions as the basis for the establishment of an integration policy for migrants, its essential goal is the exclusion of migrants from the long term resident status, rather than their integration, since in the relevant bill the provisions are presented as preconditions rather than as integration measures. This effort of the government to adopt a so called policy of integration, through the provisions of the above mentioned bill on long term, does not correspond to the integration policy of the European Union Commission Communication COM( 2005)389 Final, A Common Agenda for Integration Framework for the Integration of Third-Country Nationals in the European Union. - Hague Programme, Annex Ι of the Council Conclusions, 4/5 November JAI Council Conclusions of 19 November 2004/ Document 14615/04 of the Council of 19 Νovember Commission Communication COM(2003) 336 on Migration, Integration and Employment - Handbook on Integration for policy-makers and practitioners, Directorate General Justice, Freedom and Security, European Commission, in which one of the three member states who did not appoint a contact point for integration is Cyprus.
11 11 KISA considers these provisions, which are not obligatory in the Directive, to constitute perhaps the most serious violation of the Directive 2003/109/EC that has been put forward by the government: while knowing that no migrant can meet these conditions as the state has never, as stated above, offered any integration programmes for migrants, neither has it encouraged so far the creation of such programmes; by granting a transitional period of 18 months to give the opportunity to migrants to meet these conditions, without at the same time providing for its own obligation to establish free integration programmes to help them meet these conditions within the specified period of 18 months; without clarifying what will happen to migrants who will not manage to satisfy these criteria within the specified 18-month period, e.g. whether they will be deported regardless of the fact that they will have been living in Cyprus legally and continuously for at least five years; with the aim of delaying the granting of the long term resident status and the rights of equal treatment with Cypriot citizens which this status entails, for at least 3 more years from the date that the Directive should have been implemented; without specifying who is responsible for covering the cost of the above mentioned programmes, while in other EU member states this is usually covered by the state; while knowing that the only Greek language programmes available at the moment and accessible to migrants because of their low cost are the upgrading training programmes of the Ministry of Education and Culture, which are however very often inaccessible in terms of time and do not offer sufficient training for proficiency in the Greek language within the 18-month time span; ignoring the fact that the official languages of the Republic are both the Greek and the Turkish languages, and that the obligation therefore for sufficient knowledge of a language should refer to either of these two languages. KISA is in no way against integration programmes for migrants; on the contrary, for many years it has been pressing the state for setting up free language programmes and other
12 12 programmes on Cyprus and the European Union realities, which would contribute to the empowerment and integration of migrants in Cyprus. These preconditions cannot, however, constitute a means of exclusion or limitation of the rights of the long term resident migrants in Cyprus but rather a means of their real integration into Cypriot society. It follows therefore that integration conditions (language proficiency and adequate knowledge of Cypriot history, etc) should be met by migrants after they have acquired the status of the long term resident and within a reasonable time period of at least 5 years. This period will enable the state to verify whether migrants fulfill these conditions at the first renewal of their long term resident permit (after 5 years). It will also provide the Government enough time to adopt and develop effective policies and integration programmes, while at the same time allowing migrants sufficient time to adapt to their new status and fulfill their new obligations Examination procedures and fees for the submission of the application for long term resident status As defined in the preamble of the Directive 2003/109/EC, the procedures for granting the long-term resident status to migrants should be effective and manageable, taking into account the normal workload of the administrations of the member states. They should also be fair and transparent, in order to offer appropriate legal certainty to those concerned and should not constitute a means of hindering the exercise of the right of residence (preamble, paragraph 10). With the referred bill, the Cypriot Government has adopted such procedures and demands such certificates and other supporting documents from migrants that will, in KISA s opinion, effectively restrict the exercise of the right of permanent residence, in violation of the Directive2003/109/EC. KISA also believes that these procedures will prove to be ineffective because of the substantial increase of bureaucracy. This is based on the current legal and socio-political framework and migration model as well as the practices on migration issues adopted by the administration as these are analysed below. KISA experiences these practices daily within the framework of the advice and information services it provides to migrants Procedure for the submission of applications and required supporting documents
13 13 Article 18I of the bill requires that an application be accompanied by the following supporting documents, which prove, as noted in the same article, that the conditions set in article 18Θ, that is the legal and continuous residence, possession of adequate and stable resources, sickness insurance and integration conditions, are met. According to the above article, the supporting documents constitute a necessary precondition for the migrant to gain the status of long-term resident. Consequently, the non-submission of any of the relative certificates or supporting documents could potentially deprive migrants from the acquisition of the status in question. The article states that these certificates are submitted as required, depending on the merits of each case. KISA considers the above clauses to be vague, non-transparent and bureaucratic as migrants are not in a position to know which of the aforementioned certificates are absolutely necessary. At the same time, the provisions in question can be misused or misinterpreted by the administration because it is given the opportunity to assess what is required or not in each case. In particular, KISA is of the opinion that: The requirement for a valid residence permit at the time of submission of the application excludes the categories of migrants mentioned in paragraph above, who do not have a valid residence permit because of omissions or decisions of the administration. Furthermore, it should be noted that, according to KISA s experiences, it takes normally about one year to obtain a residence permit from the Civil Registry and Migration Department, from the moment of the submission of the relative application. KISA is of the opinion that the legitimacy of residence should be investigated during the examination of the application for the long term residence status; otherwise, it is possible for the administration to reject the application because the applicant does not have a legal residence permit at the time of application, regardless of who is responsible for this, as this has been repeatedly demonstrated in practice by the competent authorities (e.g. in cases of submission of applications for naturalisation) The requirement for income tax statements for the last five years and a certificate for the settlement of any tax obligations constitute a very apparent
14 14 attempt to prevent long-term residents from asserting their rights. KISA rejects the provisions in question because they are not connected to any of the conditions for the acquisition of the status, as defined in the Directive. Furthermore, it considers the specific measure as unnecessary as migrants, according to the state s policy and decisions, can only work in specific occupations for specific wages, which, in the majority of the cases, do not under any circumstances exceed the limit of taxable income. Furthermore, migrants have never been required to submit such statements either at the stage of being granted their residence permits or having them renewed. In addition, no mention is ever made of any obligation of migrants to submit a tax-statement either in the very few information handouts or on the websites of the competent Ministries. KISA is of the view that, in case the proviso in question are adopted, the workload that will be accumulated at the Tax-Revenue Offices will be so vast that the concerned migrants are very likely to acquire the relevant certificates only after some years The requirement for the submission of a contributions statement to the Social Insurance Fund, for the last five years, also aims at limiting even further the number of long-term residents who would acquire their rights. According to the practices and policies adopted by the Civil Registry and Migration Department, employers are required to present a receipt of the payment of the social insurance contributions, in order for the residence permit of their employees to be renewed. The only period during which migrants may have gaps in the payment of their contributions, is when they are in labour dispute and wait for the approval by the competent government department to change employer, which can, unacceptably, take up to one year. As a result, the provisions can be used by the administration to punish long-term residents for the gaps in their contributions that were actually the result of procedural omissions and weaknesses of the competent government services. Moreover, after granting the approval for changing employer, there is no state infrastructure to help migrants find a new employer, as the competent District Labour Offices refuse to register migrants as unemployed. The consequent delay in finding a new employer creates yet another gap in the payment of migrants contributions to the Social Insurance Fund. Furthermore, KISA had many complaints from migrants that their employers did not pay their social insurance contributions in violation of the relevant Law. This requirement will thus punish again the migrant workers for the failure of their employers to pay the compulsory contributions.
15 The requirement for the submission of bank account statements should only be made if the applicant declares any savings, further to his/her employment income, in order to prove his/her adequate resources As a result of all items mentioned in paragraph , the overwhelming majority of migrants reside in housing without contracts, due to the refusal of landlords to sign any such contracts. Moreover, the overwhelming majority of migrants share accommodation with other migrants and as a result the submission of such supporting documents, even if there were any, is in many cases practically impossible. On the basis of the above, migrants housing conditions cannot, under the present circumstances, constitute a valid criterion for the evaluation of adequate recourses Apart from what is mentioned in paragraph 3.2.3, the certificates of language proficiency and adequate knowledge of Cypriot history and civilisation, required as supporting documents, should be a certificate of participation in integration programmes, after the completion of these within a five-year period from the granting of the status, rather than a certificate of success in exams Fees for the submission of applications The Cyprus Government has set the following fees: 300 Cyprus Pounds, for the submission of an application for the acquisition of a long-term residence permit EC, 100 Cyprus Pounds, for the submission of an application for the renewal of the residence permit of a long-term resident EC, 300 Cyprus Pounds for the submission of an application for the re-acquisition of the longterm resident permit EC, and 150 Cyprus Pounds for the submission of an application for the acquisition of a migration permit to long-term residents of another EU member-state. Fees should be determined according to the principle of proportionality, that is fees should be proportional to the provided services and they should also correspond to the real costs of the administration for the examination of the relevant application. The services currently provided by the Department of Population and Immigration to migrants are characterized by continuous delays, omissions and are handled by people who are not suitably trained on migration issues. It is extremely difficult to believe that the administration s
16 16 real administrative costs for the examination of these applications are such that justify the charge of the highest possible fee for the submission of any application in Cyprus. Consequently, the fee of 300 Cyprus Pounds, for the submission of an application for the long-term resident status, could justifiably be considered as a means of discouraging migrants from submitting applications for the acquisition of the said status, especially if one takes into account that the fee in question amounts to a monthly salary of migrants in general and, in the case of domestic workers, to two monthly salaries. Furthermore, according to the Directive, the long-term resident permit is renewed automatically and upon submission of an application, if this is required in the national legislation of the member state. It is obvious that the renewal of this permit is a formal procedure and consequently the 100 Cyprus Pounds fee is not justified. Additionally, the Directive specifies that the member states should facilitate the re-acquisition of the status of long-time resident in case of loss. The Cypriot Government has not only not defined such facilitation procedures, but it has also demanded the exact same conditions, the same supporting documents and the same fee (300 Cyprus Pounds) that apply in the case of submission of an application for the first time. Finally, even though the fee stipulated, in the Aliens and Immigration Regulations, for the submission of an application for a migration permit amounts to the sum of 70 Cyprus Pounds, the fee for migration permits to long-term resident migrants of another member state to be issued according to the same Regulations, will amount to the sum of 150 Cypriot Pounds. It is KISA s position that the Cypriot Government is trying to make use of the fees as a further means of hindering migrants from obtaining the long-term resident status, to which they are entitled, as the fees are too high, as well as disproportional to the services provided and to the administration s real administrative costs Rights of long-term residents conflict of legislation Article 18ΙΖ defines the principle of equal treatment of long-term resident migrants with Cypriot citizens, in relation to the rights defined in this article. While, on the one hand, the principle of equal treatment is defined, on the other hand there is continuous reference to these rights, as these are regulated by national legislation.
17 17 The different laws, however, which define and regulate these rights or these benefits, have not been harmonized in order to include long-term resident migrants. Usually, the majority of laws providing for the granting of social, medical, educational or other benefits are implemented only in relation to Cypriot citizens and, recently, also European citizens. Consequently, in spite of the provisions of the bill in question, it does not necessarily follow that all laws relevant to the granting of benefits or rights will be applied correctly in relation to the long-term residents, since these have not been harmonized. KISA is of the opinion that a provision must be included to clarify that the provisions of this law will prevail over any other conflicting provision of any other law. Furthermore, the Cypriot Government has chosen to utilize all the possible exemptions of the Directive for the restriction of the rights of long-term resident migrants. The apparent reason for this restriction is, according to the accompanying note of the Ministry of the Interior, the serious consequences that the granting of the status in question would bring onto the Cypriot economy, society, labour market, social welfare system, etc. ΚΙSΑ considers this totally unfounded position of the Government as completely unjustifiable. The Cyprus Government should have known that the contributions of migrants, which for so many years constitute one of the major sources of income of the Social Insurance Fund, in reality are a net income of the state, because no rights or social security benefits are ever paid back to migrants, either in Cyprus or in their countries of origin. This is due to the fact that the Cyprus government has never concluded bilateral agreements with the main countries of origin of migrants in order to enable them to transfer their rights when they return to their countries of origin. Furthermore, it has never amended the relevant legislation to enable migrants to receive at least a lump sum on returning to their countries since they cannot transfer these rights. In effect, since 1991 migrants pay contributions to the Social Insurance Fund without receiving any benefits from it as they had to leave Cyprus after some years of employment (4-6). The government should also have taken into account the conclusions of a research study of the Economic Research Unit of the University of Cyprus 5, according to which the work done by migrants is responsible for a substantial proportion of the increase of the GNP. In view of the above, it is KISA s position that if the state had, if not legal obligation, at least a moral obligation to grant long-term resident migrants the maximum possible rights as the 5 Essays of Economic Policy, The economic impact of foreign workers in Cyprus, No , December 2005
18 18 Directive defines that the granting of further rights according to the national legislation is not forbidden Transitional provisions In the absence of any information and measures taken by the Cypriot government for facing up to the new conditions that the Directive has in effect brought about in the field of migration, KISA has, with letters to the competent Ministries and Departments, information material, mobilizations and other activities, brought to the forth many of the problems that long-term resident migrants in Cyprus are confronted with and which are caused by the nontimely compliance of the Cyprus Republic with the Directive in question. KISA has also submitted proposals for the solution of these problems but has no response from the state. (KISA s material is attached as Annex IX.) The provisional clause included at the end of the bill for the renewal of the temporary residence permits until , for the satisfaction of the terms concerning proficiency in the Greek language and adequate knowledge of Cypriot history, constitute as yet another violation of the Directive because, in essence, these conditions will postpone its implementation for a further period of 18 months. Furthermore, the drafting of these provisions cannot solve the problems in question and ensure the protection of the rights of long-term residents as these are defined in the Directive, for the following reasons: It is not specified whether the temporary resident permits will also constitute employment permits In case these permits will also allow employment, it is not specified whether employment will be linked to a specific employer, as in the system applied up to now and more specifically to an employer who has a permit for employing third-country nationals. In this case, long-term residents will in their overwhelming majority be led to unemployment (due to the restrictive policy of the Ministry of Labour and Social Insurance concerning employer permit renewals for the employment of third country nationals) It is not specified what will happen in cases where long-time resident migrants cannot, on , meet the conditions of language proficiency and adequate
19 19 knowledge of Cypriot history if they fail to pass the exams or for any other reason. The question is whether these migrants will be deported as a result of the reduction of the residence permit period to four years as set by the decision of the Ministerial Committee on Employment. Its reservations in relation to paragraph on the mandatory imposition of integration conditions notwithstanding, KISA considers that the transitional clauses included in the bill are not at all satisfactory and we are, therefore, of the opinion that they should be amended so that: The temporary residence permits grant the right of employment in any sector and to any employer. The long-term resident migrants will thus be able to integrate into the labour market and subsequently be in a position to prove, under conditions of full access to the labour market, that they indeed have adequate resources for the acquisition of the relative status The temporary residence permits to be renewed for as long as it is required for migrants to meet the conditions of language proficiency and adequate knowledge of Cypriot history, without any maximum time limit, since the consequences of nonfulfilling these obligations is the non acquisition of the permanent residence status and the rights of long-term residents. It follows there from that this will constitute a motive for migrants to meet these terms as soon as possible Article 18ΙΣΤ Protection against expulsion It is KISA s position that the current policy of the state concerning long-term resident thirdcountry nationals violates the provisions of article 12 of Directive 2003/109/EC, which refer to the protection against expulsion of long-term resident third-country nationals. The Directive does not refer to third-country nationals who have acquired the long-term resident status but to long term residents, that is to persons who have resided legally in the Republic for 5 years. Expulsion of long-term resident third-country nationals is possible solely for serious reasons of public order and public security. The threat to public order and public security is judged by the personal behaviour of the person concerned and must constitute actual and sufficiently serious threat for the expulsion to be carried out.
20 20 The government s policy of not renewing the temporary residence permits of long-term resident migrants which, according to article 6 (1)(k) of the Alien and Immigration Law, renders them illegal migrants subject to deportation, constitutes a direct violation of the Directive, which is already applicable in the Republic. It is KISA s position that the temporary residence permits of migrants who had been in Cyprus for at least 5 years on 23 January 2004, when the Directive came into force, should be renewed for as long as is necessary for them to submit their applications for the acquisition of the long-term residence status, and to put an end to the deportation of longterm resident migrants.
21 21 4. Comments on the Bill regarding the transposition of Directive 2003/86/EC on the right of third country nationals to family reunification 4.1. General Framework The Directive in its Preamble, defines that the measures relating to the family reunification of third country nationals should be taken in accordance with the obligation for the protection of family life and the respect of private life in accordance with international law. The Directive respects fundamental rights and respects the principles recognised particularly from Article 8 of the European Convention of Human Rights and the Fundamental Rights as included in the Charter of Fundamental Rights of the E.U. (paragraph 2 of the Preamble). The declared policy of the European Union on issues of migration stipulates explicitly that equal treatment for all third country nationals legally residing on the territory of a Member State must be safeguarded and that a more rigorous integration policy should aim to grant these people rights and obligations comparable to those enjoyed by European Union citizens. 6 Family reunification is a necessary way of making family life possible. It helps to create sociocultural stability facilitating the integration of third country nationals in the Member States, which also serves to promote economic and social cohesion, a fundamental Community objective stated in the Treaty (paragraph 4 of the Preamble). The spirit of the Directive stems undeniably from its preamble and should, according to KISA, emanate as clearly from the harmonization law introduced by the Member States in compliance with the Directive. It is our firm position that, once again, the provisions of the proposed legislation, in conjunction with current immigration policies and practices by the Civil Registry and Migration Department, do not correspond to the spirit of the Directive but, on the contrary, they are in violation of it The position of KISA on articles 18KH 18ΛΗ of the Bill Family reunification of third country nationals in general In Article 18ΚΘ of the Bill it is stated that the clauses regarding the right to family reunification are implemented in those cases where the sponsor is in the possession of a 6 Conclusions of the 1999 Tampere European Council