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PhD candidate (EUI), LLM in Comparative Law (Sorbonne), Licence (Sorbonne).
Address: European University Institute, Badia Fiesolana, Via dei Roccettini 9, I-50016, San Domenico di Fiesole, (FI) ITALY

E-mail: [email protected]

Copyright © 2003 Hélene Oger
First Published in Web Journal of Current Legal Issues.

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The situation of third-country national long-term residents in the European Member States today highlights an ill-functioning system in relation to citizenship. If these privileged immigrants do enjoy ever more rights, this is only through the vehicle of immigration law, derogatory law. They do not enjoy an equal legal status but only have, to some extent, equivalent rights, which annihilates the concept of citizenship understood as both passive (rights and obligations) and active (political and social participation). And more generally, the global evolution points towards an always more mobile and heterogeneous population.

The concept of European citizenship questions to some extent the traditional model of national-citizenship, since it is no longer directly linked to a state or nationality. However, it was only partial. There is consequently a need to revise the concept of citizenship for the sake of equality and diversity. Citizenship should additionally be acquired through the criterion of ‘habitual residence’ (after 5 years) as an objective criterion in order to secure an equal legal status for the whole stable population and to secure a full concept of citizenship.

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• Introduction:
• I- Denizens’ Paradigm: Bearer of Rights but Juridically Excluded
• A- The situation at the member-states’ level
• 1- A Weakened State
• 2- Denizens’ Enjoyment of Most Constitutional Rights
• a- Civil Rights
• b- Political Rights
• c- Social Rights
• 3- Denizens’ ‘In-Betweenness’
• B- The European Union: a not more generous beyond-state level
• 1- A not more inclusive European quasi-citizenship
• 2- The current and prospective future rights of denizens
• a- Very limited rights for non-privileged non-EU Citizens
• b- Future recognition of rights, however limited by the member-states’ permanent opposition
• II- Residenceship: a necessary revision based on the objective criterion of residence
• A- ‘Residenceship’: Pledge for an Inclusive Open Dialogue at the national and European levels.
• B- The objective criterion of residence to secure an equal status of citizenship rather than a lower status of permanent resident.
• 1- Citizenship based on residence contrasting naturalisation and ‘permanent’ residence permits.
• a- Study of the conditions for naturalisation and permanent status in the member-states and the European Union
• 2- The neutral criterion of residence as the first criterion for ‘solidarity-residenceship’
• a- The criterion of habitual residence: double need of facts and intention
• b- supplementary conditions and effects of citizenship

• Bibliography

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The concept of citizenship is vague and complex. Classically, beyond the psychological aspect of citizenship (sense of belonging), one distinguishes between two dimensions of citizenship: active and passive citizenship. The former describes participation in a social and a political community, otherwise called the political, the formal and the ‘living-together’ citizenship. Passive citizenship, on the other hand, determines citizens’ rights and duties toward the state. It is also called legal, substantial (see Sorensen 1996) or ‘social-contract’ citizenship.

Citizenship is both an individual relationship between each citizen and his state and an exclusionary concept, since one is or one is not a citizen according to the state’s sovereign decision. This draws boundaries, historically identified with the nation’s boundaries. Traditionally, Germany is represented as embedding cultural (ethnic) citizenship, in contrast to the French political (civic) citizenship model, whereas the multicultural British model recognises diversity. However different these three basic European models are, nationality has unanimously been recognised as the necessary pre-requisite for the qualification of citizen (see Hollinger 1995,p.131). Hollinger distinguishes between civic and ethnic nationalisms.. National citizenship emerged as a ‘pivotal element’ of the social contract fostered by the Westphalian system of states, the citizen being the national and the rights of man being national rights.

Yet, this traditional understanding of citizenship, based on nationality and cultural homogeneity, was challenged by post-World War II immigration. Indeed, this rapidly became not temporary but permanent immigration (the myth of ‘Gastarbeiter’). And although most European countries stopped the recruitment of labour in the mid-70s, immigration went on through family reunification and asylum. As a result, a new category of inhabitants was created, namely the ‘denizens’, or, in the EU terminology⁽¹⁾, 'third-country nationals long-term residents‘. These permanent residents are denied the status of citizen and as such excluded from political participation, although they enjoy some rights through the doctrine of ‘world (or cosmopolitan) citizenship’⁽²⁾. Juridically excluded, as foreigners, but physically present on the territory, their ‘in-betweenness’, or fluid position, consequently not only conflicts with the traditional conception, but even questions this dominant framework and calls for a revision of citizenship, no longer exclusively based on nationality.

European citizenship did not modify the situation, since, although citizenship is here decoupled from nationality, it is only partial, because the condition to belong to European citizenry is to be a national of one member state. As such, its revolutionary aspect was only limited and did not have any more inclusive consequences, denizens being still excluded.

In the first part, this article will study the partial integration of denizens both at the state and at the European levels. It is aimed at showing that the two-fold result, namely the maintenance of the citizen/non-citizen distinction whilst diluting it in relation to the rights conferred, may only lead to a non-inclusive passive citizenship. In the second part, this article will thus develop a new basis for citizenship, the criterion of residence, in order to ensure both solidarity and mutual recognition of difference on an equal footing within an open, heterogeneous but inclusive context.

This article therefore argues that the only possible way to have both passive and active aspects of citizenship within an inclusive concept is to create a new legal way of becoming citizen through the criterion of residence.

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The nation-state remains undoubtedly the main referent for people’s identity. However, as we have entered a global era with the development of trans- and post-national dimensions, and so a fractured world at the infra-state level, the state has been weakened, and people became more diverse, with multiple belongings. Their complicated and fractured self faces a monochrome national-citizenship. There is consequently a paradox between the complex reality and the monocular homogeneous statal construction. Nevertheless, there has been an attempt to seriously tackle the problem, notably with the extension of human rights as opposed to citizen/national rights. Indeed, a significant number of rights are based on the territoriality principle rather than on the nationality principle, and as such open to all inhabitants, regardless of their nationality.

Constitutional law and constitutional courts have played a key role in the development of denizens’ rights (see Joppke 2001, p.36). As a result, most of the fundamental rights protect all inhabitants, regardless of their nationality.

In the UK there is no formal differentiation between nationals and non-nationals, since there is no written constitution, no rights catalogue and since “every person within the jurisdiction enjoys the equal protection of [the] laws”, Reg.v. Home Office, ex parte Khawaja [1984]. However, the grounds for deportation in the 1971 Immigration Act did seriously limit this principle. And, within that framework, the Human Rights Act (HRA) although providing for the first time⁽³⁾ a written charter, did not fundamentally change the situation. In Germany, the rights contained in articles 8, 9, 11 and 12 of the Fundamental Law are limited to German nationals. If, on the one hand, the Constitutional Court has confirmed the restriction of freedoms of occupation and profession (BverfGE 59,294) and of movement to nationals (articles 11 and 12), freedoms of assembly and association (articles 8 and 9) have, on the other hand, been opened to foreigners by statutory law. In France, rights are open to every individual in the preamble of the 1946 Constitution, whereas some are reserved to citizens in the 1789 Declaration of the Rights of Man and Citizen. Additionally, in 1993 (“Maîtrise de l’immigration, 13/08/1993,no 93-325 DC), the ‘Conseil Constitutionnel’ established that fundamental rights and freedoms of constitutional value of all residents of the Republic must be recognised, as long as their enjoyment is compatible with public order.

In general, civil rights are based on the territoriality principle rather than the personality principle, and are thus enjoyed by all inhabitants. However, rights related to political expression and organisation were only recently granted to immigrants. Additionally, foreigners in Germany do not have the right to create political parties. The authorities may even limit or forbid their political activity.Moreover, some civil rights, based on the fundamental citizen/foreigner distinction, namely the principle of legal equality and the permanent right to remain and right to return, are still forbidden or only to a limited extent open to foreigners. Thus, article 2 of the French constitution, stating that France is an indivisible, secular, democratic and social republic, limits equality before the law to citizens. However, foreigners can invoke equality in certain areas (1993 decision).

The right to permanently remain and the right to return have nonetheless been partially extended to foreigners legally resident, for example through permanent residence permits or through a right to return for second-generation immigrants. Article 8 ECHR also recognises a conditional right to family reunion and a certain protection from expulsion. However, denizens are always susceptible to expulsion for public security reasons, if they do not behave as ‘good citizens’. This impedes their integration (see Holtschneider, p.63), and reinforces their position as an excluded class of residents, as ‘outsiders-inhabitants’. The Assembly of the Council of Europe thus invited governments to apply ordinary-law penalties rather than expulsion for long-term immigrants (Report of the Committee on Migration, Refugees and Democracy 2001). In the Netherlands as in Portugal, some long-term immigrants enjoy an absolute protection against expulsion.

Regarding economic rights, the access to self-employed professional status is less restricted (except in Germany) than access to employee status. However, there is still a general discriminatory access to civil servants functions⁽⁴⁾.

Political rights remain largely the exclusive privilege of citizens. However, in Sweden, Denmark, Norway, Finland, Netherlands, Ireland, denizens have been granted a right to vote and stand for local elections, as recommended by the Convention on the Participation of Foreigners on the Democratic Public Life of the Council of Europe or the Commission of the EU.

In contrast, both the German and French Constitutional Courts stated that such an extension would breach the constitution, on the ground that only nationals - as the sovereign people - can be the bearer of political rights. The ‘Bundesverfassungsgericht’ argued that the constitution entitled Germans citizens alone, the ‘Staatsvolk’, to vote (BverfGE 83,37). However, since the Maastricht Treaty, EU citizens have been granted a right to stand and vote for local elections (article 28(2) GG).In France, the ‘Marceau Long’ report for the reform of the French code of nationality proposed to adopt the criterion of residence instead of nationality for voting in local elections, because it was a vote marking participation in local life. However, in the first Maastricht decision, the ‘Conseil Constitutionnel’ held that giving a right to vote in local elections to EU citizens breached the constitution, since the local representatives of the state elected the members of the Sénat, a national Assembly. In order to conform with European law, article 88-3 was therefore added to the Constitution.

There is thus a “three-layer’ system” in France and Germany with full political rights for citizens, partial political rights for EU citizens and no political rights for third-country nationals. The position is different in Britain, since the basis of the three-layer system is wider. Indeed, the right to vote and stand for general election is open to all Commonwealth citizens (not only British) and to Irish citizens. As in Germany and France, citizens of the EU can vote and stand as candidates in European or local elections (RPA 2000, s.2) while non-Commonwealth citizens do not have any political rights.

Social rights depend more on residence (territoriality principle) than on nationality (personality principle). Universal social rights, such as health and social security or public and free instruction, are generally open to immigrants. A second category, linked to employment covering insurances (illness, accident, old-age, unemployment), is also only partially discriminatory. A third category of social benefits depends on incomes and salaries.

In Great-Britain, the holders of work-related categories of permits and the holders of Indefinite Leave to Remain (ILR) may enjoy all benefits.

In France, the 1946 Constitution’s preamble added social and economic rights dealing with work, education and health. Equal access to social benefits (1990 decision) is not absolute, a different treatment being not necessarily discriminatory (1993 decision). However, denizens do enjoy equal rights. Moreover, family benefits are open to all foreigners who legally entered and have stayed for more than three months in France.

In Germany, foreigners in principle have equal rights if they legally reside in Germany. Nevertheless, only denizens enjoy children benefits, apartments subsidies and education holydays and education subsidies.

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The rights granted to immigrants on the ambiguous ground of residence, rather than creating “cosmopolitan denizenship” (see Zolberg 2000, p.518) prove that the nation-state is conflicting with the very liberal notion of human rights, supposedly universally and equally granted.

Whereas the classical concept of citizenship obeys an "either-or" logic, denizenship has blurred this boundary, evidencing an ill-functioning concept. Long-term immigrants are no longer “humanly or sociologically foreigners”. Their nationality, “though a legal reality, does not reflect [their] actual position in human terms” (ECtHR, Djeroud, 1990). Denizens recreate and transform the traditional nation-state, since these ‘outsiders-inhabitants’, in principle subject to derogatory laws, in fact live permanently in the country, transforming temporary derogation into the rule, per se modifying the existent regime.

In the specific case of expulsion, there have been some unsuccessful attempts at the international level to legally recognise this factual situation. Some judges of the European Court of Human Rights have argued against expulsion on the basis of ‘de facto’⁽⁵⁾ citizenship. According to the minority opinion of judge De Meyer in the Beldjoudi⁽⁶⁾ case, Beldjoudi’s expulsion would be inhuman treatment, because France was in fact ‘his’ country. He bases his reasoning on article 12(4) ICCPR, recognising the right of a person to enter ‘his’ own country. Because it has been acknowledged⁽⁷⁾ that the scope is larger than the nationality principle, some hoped that the host country of a denizen could be recognised as ‘his’ own country. However, such a wide interpretation has never been acknowledged by UN jurisprudence, limiting it to very specific cases⁽⁸⁾. In the same case, judge Martens wondered

Rather than this internal inclusion, member states have chosen to cope with the current difficulties from an external perspective. It is dealt with in terms of immigration law, thus strongly stating that denizens are only integrated as outsiders, Aus- and not In-Länder.

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While citizenship is still firmly anchored in the nation-state, it is no longer the whole story, as is acknowledged by the European quasi ( see Zolberg 2000,p. 518) citizenship.

European citizenship, being independent of a (non-existent) European nationality, must be an inclusive and “pure citizenship” (see Magnette 1997, p.25). The dissociation between nationality and citizenship could then include non-nationals, namely the denizens, and thus give them an equal status, rather than only the "almost equivalent rights" enjoyed at the state level. However, this was not in fact achieved since, according to article 17 of the TEU, the pre-requisite for European citizenship is the possession of the nationality of one member-state. Thus, as Kveinen (see Kveinen 2002, p.21)⁽⁹⁾ asserts, the post-Westphalian community within the EU ends up privileging citizenship as status over citizenship as fact⁽¹⁰⁾, since ex-outsiders become insiders through European citizenship, without including third-country nationals.

In other words, there was a move beyond the traditional understanding of citizenship, but it was still too shy to embrace denizens. European citizenship is “caught up in a national framework which constrains its dynamic potential” (Bauboeck). Significantly, the notion of dual citizenship in the European constitution was withdrawn. What was supposed to be a revolution was ‘pie in the sky ’ (D’Oliveira). The referent remains the nation-state and nationality is secured. Moreover, at the statal level, it created an intermediate category of ‘others’ in between the states’ nationals and third-country nationals. Through the transformation of the traditional citizens/non-citizens dichotomy - already altered by denizenship - into a trichotomy between national citizens, other Union citizens and third-country nationals - and even a quatri-chotomy with denizens added - the position of the latter has worsened. Moreover, not only are denizens not European citizens, but they also enjoy only limited rights at the EU level.

There has been a powerful obstacle to granting rights to foreigners at the European level, since it was a large preserve of state sovereignty. Consequently, the agreement for harmonisation will probably only be to a minimum rule.

Nowadays, foreigners do have the right to petition, the right to sue before the European Court of Justice, and denizens, who live in a second member state, enjoy an equal status for social benefits, since regulation 1408/71 has been extended in a regulation of May 2003 to third-country nationals. However, the position of third-country nationals regarding non-discrimination (see Raible 2001) (article 13 TEC) was never clear. Because EU competence is limited, one can wonder if third-country nationals are in fact covered, notwithstanding that in practice such formulas have been limited to EU citizens and that the two anti-discrimination directives 2000/43/EC and 2000/78/EC do not cover differences of treatment based on nationality. These rights are thus very limited. Nevertheless, there are some interesting potential future developments, namely regarding the future status of the European Charter and the future directive on the status of long-term residents.

Although -the European Charter has been adopted by the member-states at the Nice Summit as a mere declaration, the European Court of Justice can draw inspiration from it and it has been incorporated as the second part (CONV 725/03, 27th May 2003: European Charter is the second part of the draft of the European Constitution) of the draft EU constitution.

Most of the rights recognised by the Charter are, on the member-state classical constitutional model, open to every human being rather than limited to citizens. However, the freedom of labour in another member-state is restricted, the right to vote and stand for an election is limited to EU citizens and freedom of movement is restricted but might be extended to all residents (article 45(2)). This should, in the future, be an important source of rights and equality for denizens.

A political agreement was reached by the heads of state and government at the Tampere European Council for the equal treatment of third-country nationals. This led to the Commission’s proposal⁽¹¹⁾: for a directive on the status of third-country nationals long term residents⁽¹²⁾, adopted by the Commission and the Parliament, but importantly modified in the member-states' political agreement of June 2003. It aims at approximating national legislation and practice regarding the granting of ‘long-term resident status’ to third-country nationals legally resident according to the universalism principle, and regarding their freedom of movement. According to article 12, immigrants would enjoy a right to equal treatment in a wide range of economic and social matters⁽¹³⁾, but not political (although the European Parliament recommended the right to participate in local elections⁽¹⁴⁾).

Regarding freedom of movement, if the proposal of the Commission was largely favourable, this is not the case of the political agreement reached by the member-states. Indeed, the access to work may be limited in the second state, if the member-states already have a quota system, and may also depend on the situation of the labour market. Moreover, the member-states may limit access on the basis of ‘integration’ (which term is undefined). They may also limit social security. Finally, regarding the new directive on family reunification, their right to family reunion may also be reduced. In addition, the permit may be withdrawn, refused or not renewed if they do not have sufficient financial resources. Thus, this directive will grant an important set of rights for denizens approaching those that they already enjoy in the member-states, but it will not be more favourable. Indeed, it lays down only minimum rules, creating a harmonised legislative floor. Moreover, although there are some "stand-still" clauses to limit the adoption of less favourable domestic laws, nothing prevents member-states owering the standard of their laws before the adoption of the directive. It is not a legislation based on human rights but on the member-states’ interests and that might be very prejudicial to denizens. Despite the generous proposals and speeches⁽¹⁵⁾ at the European Union level for a more inclusive society, the laws to be enacted will be very restrictive, since as at the state level, the first aim today is to prevent immigration.

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If denizens have more rights than before, it is mostly based on their status as permanent residents rather than on an equal status as citizens. To base citizenship on residence would permit them to have the same rights (including political participation and ban on deportation) and the equal status of citizens. This is no reference to the Commission’s concept of ‘civic citizenship’ (2000 Communication COM [2000] 757), viewed as a means to integrate and a first step towards the acquisition of nationality, since ‘Residenceship’ will no longer be based on nationality for the sake of equal difference.

In all states in the world, a foreigner has neither a right to enter nor a right to remain. The conditions under which he can enter and remain depend on the laws and the practice of the administration of the state, as long as they do not contradict humanitarian or international rules. Thus, the situation of immigrants differs from that of refugees, since whereas for the latter, there are some moral and legal humanitarian obligations, for the former, the state decision is sovereign, “government authority is at the zenith” (Schuck). There is, additionally, an exclusive and discretionary power of the state to choose its nationals.⁽¹⁶⁾ In other words, there is in this sensitive area, a monologue, rather than a state/individual dialogue. However, state discretion had increasingly to take into account individuals’ rights - separated from any referent. Arendt’s paradox of human rights, namely that human rights meant to be universal but only in the sense that all legitimate governments ought to guarantee them for their citizens, has been partially challenged.

Because the permanent foreigner's status of denizenship is closer to that of nationals, because there is a trend to limit discretionary power for naturalisation and time of residence, because there is a broader acceptance of dual nationality, and simply because of the increasing movement of persons, the classical understanding of naturalisation as the last and definitive step toward a full legal recognition must be reconsidered⁽¹⁷⁾. Hammar’s model of the three entry gates⁽¹⁸⁾, illustrating a one-way movement, is outdated. Naturalisation should no longer. It must be replaced by ‘citizenisation’5, a status decoupled from nationality.

There is a need to revise the very understanding of citizenship (see Agamben 2000) in order not to end up with forced solidarity. ‘Residenceship’ would better integrate immigrants, because they would automatically, after a certain period of stay, become citizens, rather than become ‘natural’. They would be no more fundamental discrimination based on nationality, thus opening up the path toward a mutual recognition respecting diversity, toward ‘differential equality’. There would be no more fake tolerance and integration through naturalisation as the marker of the down-grading of their culture for the sake of loyalty⁽¹⁹⁾. Equality requires us to develop a theory where ‘people’ equates to the population residing within the borders, and which as such is adaptable to unavoidable, permanent and ongoing changes.‘Residenceship’ must be ‘nomadic’, imperfect, contingent.

There had been, at the European level, some interesting proposals (among others⁽²⁰⁾) basing citizenship on residence. Thus, an independent group of experts in criminal-, immigration and asylum-law had proposed to revise article 17 to extend it to third country nationals legally resident in a member-state for five years. They will enjoy all EU citizens’ rights, except diplomatic protection. However, that would only give a similar status to foreigners in their name of foreigners. They are only by extension rather than automatically EU citizens. Member-states’ nationals would still be privileged. Nevertheless, it would also create an independent and more inclusive European citizenship.

The Migrants Forum, scholars such as Delanty and D’Oliveira, and the Economic and Social Committee⁽²¹⁾, proposed that European citizenship be automatically granted to all third-country nationals legally residents in one member-state for five years or more. This possibility was indeed discussed many times within the Convention. Denizens would become ‘insiders’ rather than ‘outsiders-permanent-inhabitants’ on the basis of their residence rather than by naturalisation. Yet, unless accompanied by a harmonisation of the concept of ‘citizenisation’ within member states, this change would be largely pointless. Indeed, European citizenship would not only be a statutory denizenship at the European level, but the rules at member state level would not change, since a definitive intermediary status would be created. As Weiler argues, the European level should be an impulse for a new understanding at the state level.

If the distinction between citizens and non-citizens is ever more blurred, the member-states, like the European Union, still try to secure the traditional understanding of citizenship, by creating an intermediary status, on the basis of permanent permits for denizens. Member-states want to maintain their forced monologue through immigration law whereas true integration may only exist through citizenship based on residence as a neutral criterion.

A more secure status through a permanent permit is more favourable to immigrants and grant them a certain legitimacy in the host society. Yet, it encloses denizens in an institutionally discriminatory position of outsiders. Moreover, there is a tendency to increase the number of conditions necessary to enjoy this status, in order to avoid a too large number of privileged denizens and narrowing the differences with the conditions for naturalisation.

Habitual residence is never the sole criterion for permanent residence status. Moreover, as the new condition of ‘integration’ illustrates, member-states and the European Union tend nowadays to be stricter. As a result, the conditions for permanent resident status are now closer to those for naturalisation.

Thus, to acquire the EU long-term resident permit (art.5), according to the proposed directive, the applicant must have resided, legally and withour interruption. in the country for 5 years. He must also in principle prove (art.6) that he has sufficient and stable resources and that he has a sickness-insurance. Finally, a new condition has been added by the Council⁽²²⁾, namely that the applicant must fulfil the ‘integration conditions, in accordance with national law (art.5(2))’. This last condition is not defined and grants full discretion to member-states, which is naturally dangerous for denizens. The nature of the requirement will vary according to the host member-state and that could also lead to a general lower degree of privilege for denizens in domestic laws. Furthermore, the status may be refused for public security reasons. The dangers are similar since, whereas the Commission strictly referred to the directive 64/221/EC to define this term, the Council gives discretion to member-states.

In Great Britain, to get Indefinite Leave to Remain (ILR) or settled status or permanent/full residency, an applicant must, in principle, have been resident for 4 years. However, the applicant needs 14 years' residence and 10 years of legal stay on any basis if he has been an illegal immigrant. Moreover, the ngrant of ILR is conditional on the applicant having fulfilled the conditions for the holding and prolongation of the first permit throughout the previous 4-year period. The applicant must be able to provide for himself financially without public funds.

Until 2002, there were no cultural and language requirements. This new condition renders this permit closer to naturalisation. An applicant for naturalisation must, in principle, havelegally resided in the UK for five years and must have possessed ILR in the previous year. He must also be of full age and not of unsound mind, have good character, a sufficient knowledge of one of the four official languages; and since the ‘Nationality, Immigration and Asylum Act 2002’, he must have a sufficient knowledge of life in the UK, and must intend to remain closely connected with the UK. Both the conditions of ‘good character’ and ‘sufficient knowledge of life’ are undefined, thus giving wider discretion to the authorities. The first concerns threat to public order and is a classic condition. However, the requirement of ‘sufficient knowledge of life’ is new and reflects the will of member-states to keep full sovereignty, rather than to install a real dialogue between two actors, the administration and the applicant. This is, moreover, unfavourable to denizens with very different cultures and traditions.

However, what is interesting in the UK is that the ILR is not as demanding and it could serve as a basis regarding the conditions for ‘solidarity-residenceship’.

In France, the applicant for a ‘carte de resident’ must have an uninterrupted and legal stay of at least 3 years in France (but the new Immigration Bill envisages 5 years in its article 10⁽²³⁾, thus aligning French law with the EU's proposed directive), sufficient financial resources and an intention to settle permanently. Moreover, the Bill adds a new criterion, namely that of integration of the foreigner in French society⁽²⁴⁾, which is probably linked to the ‘contract of integration’ settled by the Government. This is dangerous, because it is too vague, thus opening a path towards arbitrariness. It also makes the residence permit closer to naturalisation, since it was previously only required for the latter. The status may be refused for public order and security reasons and if there is a deportation order in force in respet of the applicant. Additionally, new article 13 suppresses the automatic granting of semi-permanent status for foreigners who entered on the grounds of family reunification, and new article14 suppresses the automatic conversion of the temporary permit into a semi-permanent permit after 5 years of uninterrupted presence in France, since it subjects it to a condition of integration.

There is a general fear that the situation of denizens will become more fragile and modify their status and thus their acceptance in the society. It will be more difficult to get this status, thus endangering stability and security, but at the same time justifying a lower standard for the non-holders of the permit by its sole existence. In France, this permit becomes an intermediate status between foreigners and citizens, preventing any reconsideration of national-citizenship. There is no longer any automatic path from legal foreigner to the status of denizenship.

In a similar way, the applicant for naturalisation must have had his habitual residence for the past 5 years in France⁽²⁵⁾, must be of ‘good morals and behaviour’⁽²⁶⁾, must be assimilated into the French community⁽²⁷⁾, particularly through a sufficient knowledge of the language, and must not have been sentenced to more than 6 months imprisonment⁽²⁸⁾ and must not be subject to any deportation order. These conditions are very close to those for the ‘carte de resident’, which is problematic. There is however no reference to ‘good morals and behaviour’ (which is highly contentious) for the ‘carte de resident’. Yet, the permit may be refused on the grounds of threat to public order. And if there is no reference to ‘assimilation’ but rather to ‘integration’ which seems more favourable towards the toleration of difference, this appears mainly as an evolution of vocabulary to describe the same purpose. There are too many subjective criteria in the granting of the ‘carte de resident’.

In German law, there are until now two different kinds of permits for denizens, namely the unlimited Aufenthaltserlaubnis and the Aufenthaltsberechtigung. However, this latter is the highest and most secure status that a denizen may get. For the first one, the applicant must have been in possession of a limited Aufenthaltserlaubnis for more than 5 years, must have a work permit or a special authorisation to exercise his profession, must be able to orally express himself in German, must have a sufficient place of living, and there must no deportation order in force⁽²⁹⁾. If he has no professional activity, the permit will only be prolonged if he has sufficient financial means of his own.

A foreigner will be granted the Aufenthalstberechtigung if he is in possession of an Aufenthaltserlaubnis for 8 years, or if he has had an unlimited Aufenthaltserlaubnis for more than 3 years, provided that he can financially support himself from his own means, he has subscribed to a retirement insurance scheme, he has not been sentenced in the last 3 years to a period of 6 months imprisonment or more and he fulfils the last four conditions for enjoyment of unlimited Aufenthaltserlaubnis. And the permanent permit may be delivered if the applicant has an Aufenthaltserlaubnis for at least 5 years.

The new draft defines only one unlimited permit, namely the Niederlassungserlaubnis⁽³⁰⁾. The conditions are very close to those for the unlimited Aufenthaltserlaubnis, among others the possession for 5 years of an Aufenthaltserlaubnis. However, there are two new conditions, namely sufficient knowledge of German and basic knowledge of the social and legal order and the German way of life, conditions which are fulfilled if the applicant has completed a successful integration course (paragraph 43). Indeed, there will exist for the first time an integration programme with language and orientation⁽³¹⁾ courses. And the CDU-CSU proposes that the unsuccessful attending of the classes or their interruption should justify the refusal of the granting of the permit.

The new German draft is the most extreme, because it goes even further than France to reach conditions which are higher than the British conditions for naturalisation. It thus once again highlights the fact that what is called ‘resident permit’ is no longer based on the sole condition of lengthy residence. And this tendency goes counter to the recognition of more rights and possibilities of participation for denizens. In German law, there is a right for denizens to be naturalised⁽³²⁾, if they fulfil the following conditions: 8 years of residence in Germany⁽³³⁾, being legally capable, if there is no reason for him to be deported for public security reasons or under peculiar danger, if he has a sufficient place of living and if he can financially support himself⁽³⁴⁾. Moreover, he must not have protected or took part in activities against the free and democratic legal order, he must have an Aufenthaltserlaubnis or an Aufenthaltsberechtigung, and must have sufficient revenues. However, he may not be naturalised if he has no sufficient knowledge of the language, acts against public order or if there exists a reason for his deportation. In the new draft, the period of 8 years may be reduced to 7 if the applicant has successfully attended an integration courses⁽³⁵⁾.

The conditions for naturalisation, especially in relation to the duration of the residence period, are much too strict, and cannot be applied in a new theory of citizenship, regarding the state of our current world.

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To base citizenship on residence necessarily requires us to define the major criterion: residence. It does however not mean that it is the only criterion necessary to qualify for citizenship.

The civil law countries of continental Europe originally applied a domicile test for conflicts of law, but, with the introduction of the Code Napoleon in 1804, began to move away from a domicile test to a nationality test. That does however not imply that ‘residenceship’ is a retrograde form of citizenship. Indeed, this model proposes a second but equal way (besides the nationality test) to grant citizenship.

Domicile is generally equated in domestic law to ‘habitual residence’. And immigration laws rather talk about ‘residence’, ‘habitual residence’, than domicile. Thus, whereas the German immigration law used to employ Niederlassung, which would equate to domicile, as much as Aufenthalt, the 2002 Bill proposes to replace all these considerations by ‘gewöhnlichen Aufenthalt’(habitual residence). However, the new permanent permit will now be called ‘domicile’ (‘Niederlassung’) instead of Aufenthaltsberechtigung to separate it from the limited one which is a ‘residence’ (‘Aufenthalt’) permit. So the idea of domicile seems to imply a more secure status and not only a factual but also an intentional situation.

According to the German federal administrative Court (BverfwG,30/05/02,p.1379) domicile has two aspects, namely an objective one, which means that the centre of life must be in this place, and also a subjective one, that there must exist a will to stay for a certain period of time and not only provisionally. The factual and intentional aspects must both be present. In contrast, there is no such reference to the intention in the mere notion of ‘residence’, in German as in French laws.

Yet, in the domain of immigration law, where they mostly refer to ‘habitual residence’⁽³⁶⁾, this notion of intention is implied, if not explicit. Indeed, in French law, the residence permit is necessary to determine the object and the stability of the stay. Thus, there will be a great presumption of residence necessary for naturalisation if the applicant has a ‘carte de resident’( see Circulaire DPM No 2000-254 of 12th May 2000 related to naturalisation). In other words, there is not only a reference to the factual situation of the applicant but in addition the notion of length and stability is taken into consideration. Similarly in German law, the conditions of duration for naturalisation are necessarily coupled with the possession of an unlimited residence permit. Only in British naturalisation law is there an explicit mention of a necessary intention to reside. But there is also a need for at least the year preceding the application for naturalisation to have an unlimited residence permit.

Furthermore, the directive’s proposal states that the duration of 5 years of residence must have been legal and uninterrupted. Indeed, the proposal states that the applicant cannot have been absent from the territory for more than six consecutive months. Residence must additionally be legal, which means that the applicant must have had a right of abode for 5 years. Both these conditions, which also refer to an intention to stay, are common to domestic laws. This same time of six consecutive months applies for the German Aufenthaltserlaubnis. However, an absence of less than one year in French law does not in principle impair the duration of five years required. And in British law, the applicant must have been absent for not more than 450 days in total (one year and 3 months), not more than 90 (3 months) of those 450 falling during the final 12 month period. This is both stricter and easier, since there is no restriction of consecutive absence.

French law also explicitly requires a legal stay, whereas a similar requirement is implicit in British and German law, since they require the possession of a resident permit for the grant of an unlimited permit. Moreover, in British law, after 14 years of illegal stay, the applicant may apply for naturalisation⁽³⁷⁾. A better solution might be to grant citizenship automatically to those who have a legal residence, but on a discretionary basis for those illegally resident, without increasing the length of stay required.

The period of residence required is currenlty 3 years for the ‘carte of resident’ in France but will become five years. It is also five years in the European directive. Holding a residence permit for four years is generally required for the grant of ILR in British law. German law requires five years of possession of an Aufenthaltserlaubnis in the new draft to get the Niederlassungserlaubnis. It is the same to get an unlimited Aufenthaltserlaubnis under the current law, but it necessitates 8 years of the possession of an Aufenthaltserlaubnis to get the Aufenthaltsberechtigung. Regarding naturalisation, it is five years in France and Great-Britain (and in the previous year the applicant must have been in possession of an ILR) and 8 years in Germany. The duration of five years seems to be adequate because it implies a certain length of stay and intention to settle in the host country. Moreover, this period of 5 years is applied in the majority of the member-states.

It is suggested that the general principle should be that a period of five years' legal and uninterrupted habitual residence (taking account of both factual and intentional aspects) should be required. In the case of an applicant illegally present for a part of the required period, citizenship should be granted on discretion.

A supplementary condition regarding the respect of public security and public order can be envisaged but only if it is severely restricted, so as to limit the discretion, and, sometimes, arbitrariness, of the authorities. The reference made by the European Commission to the directive 64/221/EC might be a satisfactory solution. Moreover, we may imagine a condition for ‘Residenceship’ that could be the knowledge of the language, but again this needs to be clearly and strictly defined to prohibit discretion and discrimination. There should be no reference to the condition of integration, because this is too vague, becoming an exclusionary condition for being granted both the status of citizen and the permanent residence permit. This is unfavourable to immigrants under the cover of the exact opposite. It is additionally presented by many countries as an aim for naturalisation (denizens get naturalised so that they may be integrated). It is thus supposed to be both a condition and an aim. It is in other words contradictory. Finally, this condition of integration reflects the problem of national-citizenship based on a mythical homogeneous population, namely its incapacity to deal with difference.

Citizenship through residence should be available only on the demand of the applicant. It is already the case for the permanent residence permits in the European Union and the general principle regarding naturalisation. This is important, because citizenship should be at the will of the applicant. Indeed, becoming citizen is not the only path. They must have the choice and be controllers of their future.

For the same reason , the authorities should enjoy no discretion in relation to the grant of citizenship, other than in the case of illegal entry or presence; otherwise, there will not be two actors involved and participating but the grant will be at exclusively at the will of one, the state. Once the conditions are met, the applicant must become a citizen, as is the case for the EU long-term resident permit in the proposed directive. By contrast, there is no right in principle for a denizen to be naturalised or to get the ‘carte de resident’ in France. Similarly, the German and British authorities have discretion for naturalisation. Yet, some are entitled to become citizens in British law (as in French law) under the process of registration (particularly Commonwealth citizens who do not have any full right of abode). For the ILR, it is also under the full discretion of the secretary of state for the home department (except special cases). Under German law, the applicant is entitled to get the Aufenthaltsberechtigung if he was for 8 years in possession of an Aufenthaltselaubnis. But if he was only in its possession for 5 years, the authorities have discretion.

A ceremony of citizenship’s pledge could be imagined. According to the new British law⁽³⁸⁾, the citizenship oath and pledge is compulsory before being granted citizenship. However, rather than references to God and loyalty, we could imagine a pledge on democratic values, the rule of law and the importance of tolerance and non-discrimination.

The grant of citizenship should be permanent, there being no question of it being for a limited time, unlike the residence permits (granted for ten years renewable automatically in France or five years (rather than ten) according to the Council's proposed directive. (Residence is granted for an unlimited period in Great-Britain or in Germany.)

Yet, its effect is different. Indeed, regarding the permanent resident permits, all the laws studied ensure a better protection against deportation, which may only be in case of a breach of public order or a very serious threat. With ‘residenceship’, however, it goes beyond that, since obligations weighing on ‘ex-foreigners’ will only be those applicable to nationals in relation with public security. There will be no longer be any possibility of deportation, as in the case of naturalised persons under the present regime. Moreover, the neo-citizens will have equal rights. They will particularly enjoy all political rights: the right to vote and stand for an election at all levels of the state.

‘Residenceship’ would facilitate access to citizenship for excluded inhabitants, without, however, denying a peculiar identity to the state. Social relations would not be pre-imposed (on the basis of nationality) so as to allow a social recognition for all. On the other hand, tolerant social relations based on solidarity still require rules and will. Neither a too demanding pre-determined citizenship, nor a too low concept preventing any shared values.

This necessitates new laws in all the member states, and consequently at the European Union level, which could be done through a directive if Community law acquired this competence. To acquire citizenship on the basis of residence would be an equal second way alongside nationality in order to secure a both passive and active fair citizenship. The additional criterion of residence for citizenship is the way to secure a full and integrative citizenship.

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⁽¹⁾ This term is understood to include non EU citizens, and among those, the non-privileged, i.e. the families of EU nationals (see the Singh case (C-370/90, [1992] ECR I-4265) and the progressive Carpenter case: Case C-60/00, [2002] ECR I-6279, http://curia.eu.int/jurisp) and the nationals of a contracting state (through the Association Agreement (AA) or through the EEA). Although a more liberal treatment of migrants of associated states is implied with the Association Agreement, a limited freedom of movement was only granted within the framework of EEC/Turkey AA. See also ECJ, Case 12/86 Demirel [1987] ECR 3719
⁽²⁾ According to this theory, based on Kantian theory of a universal morality, all human beings should be bearers of rights regardless of their nationality and belonging.
⁽³⁾ The classical texts, such as the Bill of Rights or the Magna Carta were concerned with granting power to the parliament against the Crown for a ‘democratic’ balance of power.
⁽⁴⁾ In France, like the UK or Germany, one condition to carry out most of the nationality functions is to be a national. However, interestingly, the White Paper plans to remove these limits by revising the Race Relations Act 1976. White Paper, “Secure Borders, safe Heaven: Integration within diversity in modern Britain”,
http://www.official-documents.co.uk/document/cm53/5387/cm5387.pdf
⁽⁵⁾ The idea of ‘de facto’ citizenship refers to the situation of denizens, who do not have the status of citizens, but who are factually citizens, since part of the society. However, this expression is misleading, because it implies that they do benefit –in fact, if not in law- from an equal participation and status within the society and this is not realistic. They are not co-citizens since they do not have citizens’ rights and thus depend on exceptional rules applicable to foreigners/outsiders, rules which delineate and discriminate vis-à-vis nationals.
⁽⁶⁾http://hudoc.echr.coe.int/hudoc/ViewRoot.asp?Item=7&Action=Html&X=507182845&Notice=0&Noticemode=&RelatedMode=0
⁽⁷⁾ International Covenant on Civil and Political Rights: Freedom of movement (article 12): 02/11/1999. CCPR/C/21/Rev.1/Add.9, CCPR General Comment 27.
⁽⁸⁾ It is only conceivable if there are unreasonable obstacles to be naturalised or particular hurdles placed by the country of origin to be naturalised.
http://www.unhchr.ch/tbs/doc.nsf/385c2add1632f4a8c12565a9004dc311/360d2ade0db8f4d80256713005a23bd?OpenDocument. Communication No538/1993: Canada. 16/12/1996
⁽⁹⁾ She answers here to Andrew Linklater (“Re-imagining political community, studies in cosmopolitan democracy”, edited by Daniele Archibugi, David Held and Martin Koehler, Polity Press, 1998, Chapter 6, “Citizenship and sovereignty in the post-Westphalia European state”, Andrew Linklater) in “Citizenship in a Post-Westphalian Community: Beyond External Exclusion?”, Else Kveinen, p.21, Vol.6, no1, March 2002.
⁽¹⁰⁾ This indicates her preference for a ‘cosmopolitan citizenship’ which does not differentiate between citizens and non-citizens according to the Kantian tradition of the existence of a universal moral law osculating the active aspect of citizenship for the sake of rights.
⁽¹¹⁾ According to article 63 EC Treaty (Amsterdam modification), there is a share right to propose secondary legislation for the Commission and the member-states regarding politics of immigration.
⁽¹²⁾ Proposal COM(2001)127final, 2001/0074 (CNS). It is close to the never adopted chapter 8 of the Commission’s proposal for a Council Act establishing the Convention on Rules for the Admission of Third-country nationals, 30/07/1997 (COM(97)387final).
⁽¹³⁾ Access to employment and self-employed activity but outside public authority; education and vocational training; recognition of diplomas, certificate and other qualifications; social protection, including social security and health care; social assistance; social and tax benefits; access to goods and services; freedom of association and affiliation and membership of an organisation representing workers or employers; free access to the entire territory of the member-states concerned.
⁽¹⁴⁾ See amendments 34 and 35, European Parliament Report on the proposal for a Council Directive concerning the status of third-country nationals long-term residents, RR\302293EN.doc, 30/11/2001, Final A5-0436/2001.
⁽¹⁵⁾ Vittorino has, for example, in a speech in June 2003 advocated to recognise a catalogue of rights for denizens. Moreover, the Commission proposals are in general generous and then denatured by the member-states. Even the Tampere summit did proclaim the importance of the integration of denizens but member-states actually enact contradictory laws.
⁽¹⁶⁾ Article 1 of the 1930 Hague Convention, recalled in Article 3 of the European Convention on Nationality of 06/11/1997. http://conventions.coe.int/Treaty/en/Treaties/Html/166.htm
⁽¹⁷⁾ “Social cohesion and life quality”, Rainer Bauboeck.
http://www.social.coe.int/fr/cohesion/action/publi/migrants/juridiq.htm
⁽¹⁸⁾ Hammar’s model of the three entry gates: the first step is entry and right to remain, the second is the rights immigrants are being granted as denizens and the third one is naturalisation.
⁽¹⁹⁾ One proof is that lot of naturalised immigrants are still not considered as legitimate citizens. The notion ‘naturalisation’ in itself -meaning becoming natural- carries the idea of sameness. The German expression ‘Einbuergerung’ (becoming a citizen) is neutral and should be adopted in other languages (‘citizenisation’/‘citoyenisation’).
⁽²⁰⁾ Wistrich for example suggested to extend citizenship to all tax-payers (monetised contract). See “(Pre)conceptions in European law”, Ian Ward, Journal of Law and Society, Vol. 23, no2, June 1996, pp.198-212.
⁽²¹⁾ Resolution at its 393^rd session on 18-19 September 2002: Calls on the Convention “to examine the possibility of granting Union citizenship to third country nationals with long-term resident status”.
⁽²²⁾ Inter-institutional file 2001/0074 (CNS), 10^th June 2003, General Secretariat of the Council of the EU. Political agreement reached on the 20^th of June 2003 at the Thessalonica summit.
⁽²³⁾ The new immigration Bill adopted by the Assemblee Nationale on the 28^th of October 2003.
⁽²⁴⁾ See Art.6 newly defined : « Quand la loi le prévoit, la délivrance première de la carte de résident est subordonnée a l’intégration 5satisfaisante de l’étranger dans la société francaise, notamment au regard de sa connaissance de la langue francaise et des principes qui régissent la République francaise, qui doit être satisfaisante, ainsi que de son comportement au regard de l’ordre public ». And new art.14: « Tout étranger qui justifie d’une résidence non interrompue, conforme aux lois et règlements en vigueur, de 5 années en France peut obtenir une carte de résident. La décision d’accorder ou refuser est prise en tenant compte des éléments qu’il peut faire valoir pour établir son intégration dans la société francaise dans les conditions prévues a l’article 6 et les faits qu’il peut invoquer a l’appui de son intention de s’établir durablement en France ».
⁽²⁵⁾ Article 21-17 French Civil Code.
⁽²⁶⁾ Article 21-23 Civil Code: « de bonnes vies et mœurs ».
⁽²⁷⁾ Article 21-24.
⁽²⁸⁾ Article 21-27.
⁽²⁹⁾ Paragraph 24-1 Ausländergesetz.
⁽³⁰⁾ Aufenthaltsgesetz, 20^th June 2002, Paragraph 9. The Bundestag voted on the 9^th of May 2003 the unmodified Immigration Bill (which was voided by the Constitutional Court in September 2002 for procedural reasons). But the proposal was rejected by the Bundesrat on 20^th of June 2003. A consensus could be found by the end of December 2003.
⁽³¹⁾ Orientation courses are aimed to acquire a sufficient knowledge of the legal order, culture and history of Germany, particularly the democratic state, the principle of rule of law, tolerance, freedom of religion and equality of rights. See the Ausländerintegrationskursverordnung.
⁽³²⁾ Paragraph 85 Ausländergesetz.
⁽³³⁾ Before the 2000 Staatsangehörigkeitgesetz, the duration of stay required was 15 years.
⁽³⁴⁾ All these conditions, except for duration, are the same as for the general naturalisation (article 8 Staatsangehörigkeitsgesetz).
⁽³⁵⁾ Article 10 of the Aufenthaltsgesetz 2002.
⁽³⁶⁾ For example, article 21-17 French Civil Code regarding naturalisation states that the applicant must have for 5 years his ‘habitual residence’ in France.
⁽³⁷⁾ However because it is at the discretion of the authorities, it is very risky for the applicants because they might then be expelled for illegal stay rather than having a chance for naturalisation.
⁽³⁸⁾ New section 42 1981 Act by the 2002 Act, schedule 1