Transferring Residence permit to new passport

[Hank W.]

Well, there is a difference of
"what Daryl says in 15 paragraphs will legally happen"
and then
"what Hank guesstimates will happen at the passport control 3am when you really don't want to deal with all that crud..."

- your call

Daryl is right. Legal expert.
I am Finnish. I am crazy.

[network_engineer]

Hi Hank,

Regarding your "guesstimates"... which, by the way is what?

Simple question, if such a situation should occur, what happens to the foreigner living in Finland on the EC-Permit? Let's take both the cases, i.e. a Finnish resident, having a permanent residence permit in Finland and then being granted the EC permit.

2. A foreigner who moves in to Finland with a EC-Permit.

I guess I am getting a bit old, but have I asked this question before?

Cheers.

[Hank W.]

As it all depends on the joviality of a pasport controller......

[daryl]

Hi Daryl, all,

If I may divert the topic a wee bit...

Daryl, if I may take your statement ("Furthermore, if and when the United Kingdom hopefully withdraws or is expelled from the European Union my permanent residence permit will still be valid.") and stretch my imagination a bit, to imagine the same with another country...

Considering that the Finnish authorities currently intend to cancel the 'Permanent-Residence-Permit-sticker (which to them is the *same* as the permit itself, i.e. the leave to remain), and assuming the worst imagined scenario as above, what would happen to non-EU migrants who have only a EC-Long-Term Resident status permit (sticker) in their passport?

WBR.

I think this is a question about what happens to acquired Community Law rights when a Member State withdraws from the European Union. The type/token confusion has nothing to do with this.
AFAIK no country has ever withdrawn from the European Union after a period of confirmed membership long enough to enable substantial acquired rights to arise.
In cases of withdrawal we would have to examine the situation of EU citizens and holders of EC long-term resident status (recognised by other Member States) who are living in the country that withdraws, and the situation of holders of EC long-term resident status that has been recognised by the country that withdraws, but who are living in other Member States. Residents in the country that withdraws would all require individual residence permits. Residents in other countries would not be affected. Think back to the university degree analogy to see this. You do not cease to be a graduate if your old university closes down.
Furthermore, these questions would be trivial compared to the huge issues arising over withdrawal from the customs union, the free trade area and hundreds of other aspects of established membership of the Community.

I think what we can expect at some point (probably the next comprehensive Aliens Act consolidation) is a merger of permanent resident and EC long-term resident status.

daryl

[Hank W.]

Which will take about a year or so whilst they fiddle with it. It seems Finland jumps all kinds of silly EU rules, but when it comes to rules giving any benefits to people, they're nothing crucial.

[network_engineer]

Dear Daryl et al,

Thanks for the reply. OK, that kind of gives an idea.

OK, while it is not usual for countries to leave the EU, it has happened (Greenland, which was granted home rule by Denmark in 1979, left the European Community in 1985, following a referendum.). Of course, there are some very interesting conversations and mere opinions too, post the two countries that have not ratified the EU constitution, on the future of the EU.

But what I specifically wanted to understand is: In the *imagined* case of *Finland* no longer being part of EU, what happens to those residents, who previously held a Finnish Permanent Residence Permit, and then choose to apply for a Long-Term EC Resident Status yet chose to remain in Finland.

I am asking this only in the light of the fact that the authorities choose to ignore the difference between the leave to remain and the document that certifies it.

Based on the discussions around this topic, the authorities imagine that the Finland-granted leave-to-remain is cancelled while acquiring a EU-granted leave to remain. According to those weird assumptions, and in the imagined case of Finland no longer being part of EU, then even those residents who have previously held Finnish PRs, according to the authorities, would be "stateless" or "illegals" (chose any other preferred term)!

Well, I agree with your view that one does not cease to be a graduate if ones old university closes down. Still I wish to ask, would a long term EC resident status holder, if Finland is no longer part of the EU, be accepted to another EU country, after Finland is no longer part of the union?

Which is why, I have been asking around about the cancellation of the "Pysyvä Oleskelulupa", i.e. the certificate when acquiring the EC Long Term resident status. I.e. considering that it is the only way to have some of the learned ones (sarcasm intended) realise that they are two separate permits and are unrelated.

Even so, I am inclined to argue, if the game warden at the park is not educated enough to recognise that my combined hunting and fishing license also allows me to fish in addition to hunting, then yes, please, I object to you cancelling my earlier fishing license, merely because it infringes on my right to fish without having to drag him to the appeals court.

Maybe, there should be a session with the Parliamentary committee.

WDYT?

WBR.

PS: Yes, I agree. Hopefully, the two would merge sometime soon. Yes, I also agree that the topic itself would be a minor one, but to those under the circumstances above, might mean complete displacement.

[daryl]

But what I specifically wanted to understand is: In the imagined case of *Finland* no longer being part of EU, what happens to those residents, who previously held a Finnish Permanent Residence Permit, and then choose to apply for a Long-Term EC Resident Status yet chose to remain in Finland.

I am asking this only in the light of the fact that the authorities choose to ignore the difference between the leave to remain and the document that certifies it.

Based on the discussions around this topic, the authorities imagine that the Finland-granted leave-to-remain is cancelled while acquiring a EU-granted leave to remain. According to those weird assumptions, and in the imagined case of Finland no longer being part of EU, then even those residents who have previously held Finnish PRs, according to the authorities, would be "stateless" or "illegals" (chose any other preferred term)!

Well, I agree with your view that one does not cease to be a graduate if ones old university closes down. Still I wish to ask, would a long term EC resident status holder, if Finland is no longer part of the EU, be accepted to another EU country, after Finland is no longer part of the union?

WBR.

PS: Yes, I agree. Hopefully, the two would merge sometime soon.

There is no question here. The Directive is clear enough about the conditions under which long term EC resident status can be lost. The contracting Member States would continue to be bound by these conditions, even if Finland was not. They would have to recognise the status that was granted under the Directive.

Regarding the type/token distinction, please elaborate on the concrete consequences of the official blindness to which you refer. Why should anyone care that some inadequately trained police officer confuses indefinite leave to remain with a sticker in a passport? Any police officer who acts on this mistaken belief is liable for the consequences. As you know, I did not bother to get a permanent residence permit sticker "transferred" into my new passport. If any police officer has a problem with this, then I simply "plead guilty" and ask the officer to do his/her job (hold out my wrists and wait for the handcuffs, etc.). When the officer tries to do that job he/she will notice that there is no penalty for this specific "offence". End of game.

BTW, consolidating the national permanent residence permit and the EC permit would not be a simple matter. What qualifying period would you apply?

daryl

[network_engineer]

Dear Daryl,

Hi! Thanks for the reply.

On the consolidation of the national permanent residence permit and the EC permit: I agree it is not a simple matter. I should have clarified - the very last statement in my earlier post was not with regard to the consolidation, but to the topic of the alien's right to residence in the unlikely event of e.g. Finland no longer being part of the EU.

OK, you did answer one question quite clearly - other member states would honour an EC Long Term Resident status granted while a state was part of the European Union.

Now, what about the country that granted the EC permit and cancelled the certificate and the right (possible?) based on national law?

As regards a concrete example: I can only imagine this imaginary situation:

1. A resident, Joe Bloggs, who formerly had the right to permanent resident based on national law was subsequently granted the EC Long Term Permit (issued by XYZ). He continued to reside in XYZ. The authorities cancelled the sticker that indicates his right to reside in XYZ based on national law and so the only certificate that he has is the one based on the Community Law. [I am not sure if the right to Permanent Residence can be cancelled (having read 301/2004), there are no clauses there at least.]

2. Joe Bloggs leaves for a three month sight-seeing trip around the world. He leaves on 1.1.2010.

2. Let's imagine XYZ country is no longer part of the European Union on 25.3.2010 (sudden happening).

3. Joe Bloggs returns from a three month trip from a non-EU state to an international airport in XYZ country on 30.3.2010.

4. The border control does not let him through merely because he holds no permit that grants him the right of entry or residence. The only certificate he holds is the EC Permit sticker, of which XYZ is no longer a member of, and which they are not bound to honour. Or then, are they?

Possible?

Thanks a lot.

WBR,

[daryl]

The border control does not let him through merely because he holds no permit that grants him the right of entry or residence. The only certificate he holds is the EC Permit sticker, of which XYZ is no longer a member of, and which they are not bound to honour. Or then, are they?

I think it is important to understand how Community Law takes effect in Finland. AFAIK the Community Law duties of the State towards individuals within their jurisdiction apply as of no later than the implementation date of the Community Law instrument (vertical direct effect). The national provisions that enact those instruments (such as Directives) apply from their date of entry into force (determined by the Finnish Parliament). This means that there is normally no need to refer to Community Law instruments in the national courts UNLESS one is arguing that the national implementing provisions have failed to discharge the duty of the State towards individuals.

Mere withdrawal from the European Union would not, in and of itself, constitute an amendment to the Aliens Act. It follows that the executive would continue to be bound by the Aliens Act to respect the rights of a holder of long-term EC immigrant status and the rights of foreign European Union citizens living in Finland. The Aliens Act would obviously have to be amended to reflect the altered reciprocal situation between Finland and the European Union, but this would not and could not happen overnight without a complete change in the structure of the establishment (in other words, a revolution).

Something similar happens when collective labour agreements expire before a new agreement has been negotiated. The expired collective agreement has stipulated the minimum terms and conditions of individual employment contracts up to that time, and these employment contracts continue to reflect this minimum. It is still breach of contract for an employer to fall short of the minimum, because the minimum is part of the individual employment contract. If no new collective agreement is concluded, then it is possible for the employer to negotiate new employment contracts and to seek to renegotiate old ones without reference to the collective agreement, but expiry of the collective agreement does not, in and of itself, change the terms and conditions of any individual employment contract that has already been made. In the trade unions we call this "retroactive protection" (jälkisuoja).

A similar form of retroactive protection would cover the extreme case that you describe.