Status of long-term resident in Cyprus: Appeal against the rejection decision

By Giorgos Kazoleas, Lawyer in Cyprus

Third-country nationals residing in areas controlled by the Government of the Republic legally and continuously for the last five years prior to the submission of the application and holding a valid residence permit in the Republic can apply along with the required original documents in order to obtain the status of long-term resident in Cyprus.

It often happens that the Administration (in this case the Immigration Department) does not properly assess the facts and circumstances of the applicant and does not properly check the requirement for obtaining the status, resulting in a rejection decision.

This decision is notified to the applicant and must contain clear justification for the reasons for the rejection of the application. It must also state that the applicant has the right to appeal against the rejection decision within 75 days from the notification of the decision.

According to the Aliens and Immigration Law,[1]  in order to obtain the above-mentioned status, the following requirements must be met cumulatively-

(a) To have stable and regular financial resources, sufficient for the maintenance of himself and his dependent family members, without requiring recourse to the social welfare system of the Republic. For the assessment of these resources, the following shall be taken into account:

(i) income from gainful full-time employment;

(ii) income from other sources of a stable and legal nature;

(iii) the cost of living, including the amount of rent in the current market;

(iv) an employment contract valid for at least eighteen months or of an open-ended duration;

(v) the availability of accommodation for the applicant and/or for dependent family members, where applicable, which is considered satisfactory for a similar family in the same area, meets general safety and hygiene standards and generally ensures a decent standard of living.

(vi) in the event of an intention to be self-employed, the economic viability of the business or the relevant economic activity, including skills or experience in the relevant field of self-employment.

(a1) Have sufficient knowledge of the Greek language at level A2, as defined in the Common European Framework of Reference for Languages ​​of the Council of Europe, and basic elements of the contemporary political and social reality of Cyprus.

(b) Have health insurance that covers all risks, which are usually covered by insurance companies for Cypriot citizens.

(c) Do not constitute a threat to public order or public security within the meaning of article 18IA.

(d) His residence in the areas controlled by the government of the Republic has not been secured by fraud or false representations.

As it is expected, the reasons for rejection relate to the finding of the lack of one or more of the above requirements.

This article will discuss in more detail the first requirement (the availability of stable and regular financial resources), which is the most common reason for rejecting the application for long-term resident status.

The Directive 2003/109/EC of 25 November 2003 concerning the status of third-country nationals who are long-term residents, provides clear and secure guidance for the interpretation and methodology of the Administration's judgment in relation to the regular and sufficient financial resources that each Applicant must possess.

According to the above Directive, the main criterion for acquiring the status of long-term resident should be the duration of residence in the territory of a Member State. Residence should be both legal and continuous in order to show that the person has put down roots in the country. Provision should be made for a degree of flexibility so that account can be taken of circumstances in which a person might have to leave the territory on a temporary basis.

It is also important to note that, to acquire long-term resident status, third-country nationals should prove that they have adequate resources and sickness insurance, to avoid becoming a burden for the Member State. Member States, when making an assessment of the possession of stable and regular resources may take into account factors such as contributions to the pension system and fulfilment of tax obligations.

A guideline for the Administration when considering such an application is the Directive's statement that economic considerations should not be a ground for refusing to grant long-term resident status and shall not be considered as interfering with the relevant requirements.

The case law of the Cypriot Courts on the subject emphasizes the obligation to examine these criteria in good faith with respect for the purpose of the Directive.

As mentioned, the Administration, when assessing the requirements for granting the long-term resident status, is obliged to investigate in good faith all the relevant criteria and take into account all the data of each applicant in order to ensure its effective implementation with respect for the purpose of the Directive. The purpose is defined as the granting of a secure legal status to third-country nationals who are already long-term residents with rights as close as possible to those of citizens of the host Member State.[2]

In another decision, it is emphasized that the Law does not require a specific salary level, or an amount deposited in the bank. It is sufficient to have stable and regular financial resources, “sufficient” for the maintenance of the applicant. "Adequacy" is undoubtedly a function of the type of employment and the standard of living that the applicant is expected to have and maintain accordingly.[3]

Also, in a decision of the European Court of Justice, it has been held that for the calculation of the applicant's financial situation, resources originating from a third party or from a member of the applicant's family are not excluded, provided that they are stable, regular and sufficient. In this regard, the legally binding nature of the undertaking of a maintenance obligation by a third party or a member of the applicant's family may constitute an important element that must be taken into account. The competent authorities of the Member States may also take into account, inter alia, the family link between the applicant for long-term resident status and the family member or members who intend to undertake his maintenance. Similarly, the nature and permanence of the resources of the applicant's family member or members may be crucial elements in this regard.[4]

As the Immigration Department often fails to conduct a proper and sufficient examination of the applicant's financial information and rejects (often without legal or sufficient justification) the application, it is of great importance to file an appeal with the Administrative Court with a view to annulling the rejection decision, so that the Application can be properly re-assessed.

This article is for informational purposes only. For ad hoc advice and handling of your case, please contact the author at giorgos.kazoleas@gmail.com

Giorgos Kazoleas is qualified Lawyer in Cyprus and Greece , certified Mediator in Cyprus  in civil & commercial disputes and member of the Cyprus Bar Association and Greece Bar Association

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[1] Article 18Θ of the Aliens and Immigration Law

[2] Case No. 1699/2011, March 13, 2013 (Supreme Court - Revisional Jurisdiction)

[3] Case No. 1877/2012, 22 December 2015,( Supreme Court, Revisional Jurisdiction)

[4] Judgment of the CJEU (Third Chamber) of 3 October 2019 X v Belgische Staat - Case C-302/18

(photo: freepik.com)