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Conformity Study for Lithuania Directive 2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States


This National Conformity Study has been prepared by Milieu Ltd. in consortium with the Europa Institute, Edinburgh University under Contract No JLS/2007/C4/004-30-CE0159638/00-31. The actual conformity checking was carried out in Lithuania by Domas Balandis and was concluded on 1 August. The study does not take into account any subsequent changes in EU law and national legislation and/or administrative practice. The views expressed herein are those of the consultants alone and do not necessarily represent the official views of the European Commission. The national report reflects that legal situation as it stands on 1 August 2008. No subsequent changes have been taken into account. Milieu Ltd. (Belgium), 29 rue des Pierres, B-1000 Brussels, tel: 32 2 506 1000; Fax 32 2 514 3603; e-mail: sophie.vancauwenbergh@milieu.be; web address: www.milieu.be


ANALYSIS OF THE LEGISLATION TRANSPOSING DIRECTIVE 2004/38/EC ON FREE MOVEMENT OF UNION CITIZENS

TABLE OF CONTENTS EXECUTIVE SUMMARY ......................................................................................................................... 6 SUMMARY DATASHEET ...................................................................................................................... 12 ABBREVIATIONS USED ....................................................................................................................... 17 1 INTRODUCTION ......................................................................................................................... 18 1.1 OVERVIEW OF THE LEGAL FRAMEWORK IN LITHUANIA.................................................................... 19 1.2 FRAMEWORK FOR TRANSPOSITION & IMPLEMENTATION OF DIRECTIVE 2004/38/EC IN LITHUANIA........................................................................................................................................................... 19 1.2.1 Distribution of competences according to the national Constitution ................. 19 1.2.2 General description of organisation of national authorities implementing Directive 2004/38/EC Lithuania .......................................................................................................... 20 2 LEGAL ANALYSIS OF THE TRANSPOSING MEASURES FOR DIRECTIVE 2004/38/EC................. 21 2.1 Definitions, family members and beneficiaries ................................................................................ 21 2.2 Rights of exit and entry............................................................................................................................ 23 2.3 Right of residence..................................................................................................................................... 25 2.4 Right of permanent residence.............................................................................................................. 37 2.5 Common provisions (Articles 22-26) .................................................................................................... 39 2.6 Restrictions on the right of entry and residence on grounds of public policy, public security and public health ............................................................................................................................................ 41 2.7 Procedural safeguards against decisions restricting free movement (Article 15, and Articles 30-31) .................................................................................................................................................... 42 2.8 Final provisions (Chapter VII) ................................................................................................................. 45 3

Recent developments ............................................................................................................. 46

Bibliography ANNEX I: ANNEX II: ANNEX III: ANNEX IV:

Milieu Ltd & Europa Institute

Table of concordance for Directive 2004/38/EC List of relevant national legislation and administrative acts Selected national case law Application format for issuance of the EC Residence permit

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EXECUTIVE SUMMARY 1. Introduction The Lithuanian legal system is based on a codification that follows the legal traditions of the European continental model and more precisely, the German model. The Constitution of the Republic of Lithuania was adopted by referendum on 25 October 1992. It created the legal bases for the legal system and distributed competences between the Parliament (Seimas), the President of the Republic and the Government, and the Judiciary. The Lithuanian legal system consists of codes and the other laws as independent instruments for regulating specific branches of public relations. Government resolutions and other regulations may regulate relations only in the cases and to the extent determined by the codes and the other laws adopted by the Parliament. International and the Community laws are superior to national law. Jurisprudence and legal precedents are not a source of law but the Supreme Court of the Republic of Lithuania and the Supreme Administrative Court of the Republic of Lithuania are considered as competent to interpret laws and other legal acts. Their interpretations found in the decisions or rulings must be taken into account by courts and other institutions as well as by other entities when applying the law or other legal acts. 2. Introduction to the main particularities of the legal system of the Member State relating to the transposition of Directive 2004/38/EC. Transposition of Directive 2004/2004/38/EC is mainly the result of the adoption of the Law on Legal Status of Aliens and its amendments. The first partial transposition was obtained through the adoption of the Law on the Legal Status of Aliens (Lietuvos Respublikos įstatymas dėl užsieniečių teisinės padėties) No IX-2206 of 29 April 20041, which entered into force on 30 April 2004. The second partial transposition was obtained through adoption of the amendments to the Law on Legal Status of Aliens by Law No X-924 of 28 November 20062, which entered into force on 16 of December 2006. The third part of transposition is the result of the amendments to the Law on Legal Status of Aliens by Law No X-1442 of 1 February 20083, which entered into force on 22 February 2008. The other laws regulate specific issues related to the rights of Union citizens and their family members. For example, the Civil Code defines the concept of marriage; the Law on Declaration of Residence Place establishes the obligation to register the residence place in Lithuania, etc. It is established practice in Lithuania that laws establish principal provisions and the Government and the ministries regulate procedures by the secondary legislation; full transposition of the Directive is split into a variety of secondary legal acts. However, some of those legal acts are still in preparation. The Minister of Internal Affairs is the member of the Government with responsibility for immigration. The Minister has almost complete control of all relevant legal and administrative provisions for implementing the Directive. The Migration Department under the Ministry of Internal Affairs is 1

Lietuvos Respublikos įstatymas dėl užsieniečių teisinės padėties, Valstybės žinios, 2004, No 73-2539, http://www.lat.lt/default.aspx?item=tn_liteko&lang=1 2 Įstatymo „Dėl užsieniečių teisinės padėties“ 2, 6, 7, 8, 11, 17, 18, 21, 25, 26, 28, 33, 34, 35, 40, 43, 46, 50, 51, 53, 54, 55, 56, 64, 79, 88, 90, 93, 97, 99, 100, 101, 102, 104, 106, 113, 115, 127, 130, 131, 132, 136, 138, 140 straipsnių pakeitimo, įstatymo papildymo 49(1), 101(1), 140(1) straipsniais, 30, 105 straipsnių pripažinimo netekusiais galios, X skyriaus pavadinimo pakeitimo bei Įstatymo priedo pakeitimo ir papildymo įstatymas, Valstybės žinios, 2006, No 137-5199 http://www3.lrs.lt/pls/inter3/dokpaieska.showdoc_l?p_id=288727 3 Įstatymo „Dėl užsieniečių teisinės padėties“ 2, 5, 8, 26, 32, 35, 40, 43, 46, 50, 53, 71, 72, 90, 99, 104, 113, 124, 125, 126, 127, 131, 133, 134 straipsnių, III skyriaus pirmojo skirsnio ir priedo pakeitimo ir papildymo, Įstatymo papildymo 49(2) straipsniu ir 7 straipsnio pripažinimo netekusiu galios įstatymas, Valstybės žinios, 2008, Nr. 22-803 http://www3.lrs.lt/pls/inter3/dokpaieska.showdoc_l?p_id=314800

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responsible for implementation of provisions of the Law on Legal Status of Aliens related to declaration/registration of the residence place; visas; organisation of issuance of identity documents to citizens of the Republic of Lithuania, citizens of any other foreign states and stateless persons; implementation and security of new identity documents and the compliance thereof with the European Union standards; preparation of the drafts of legal acts related to the legal status of foreigners. 3. Conclusions of the legal analysis of the transposing measures for Directive 2004/38/EC. The requirements of Directive 2004/38/EC are mainly correctly transposed by the Law on Legal Status of Aliens and its amendments. The Law on Legal status of Aliens regulates both the legal status of Union citizens and legal status of other foreigners. Such an approach renders transposition quite complex. It seems that the legislator sought to achieve transposition of the Directive by changing a minimum part of the provisions in the Law on Legal Status of Aliens; therefore, the provisions of the said Law are too general. A large amount of secondary legislation is needed to specify and clarify those provisions. The secondary legal acts transpose the requirements, particularly those provisions related to administrative formalities (registration of residence place, issuance of resident permits, etc). The fragmentation of the transposing provisions into a variety of secondary legal acts leads to several inconsistencies in the transposing provisions. The secondary legal acts have not been always properly transposed. The conformity problems mainly concern issues of incomplete and incorrect transposition. Incomplete transposition partially occurs due to the fact that the Lithuanian legislation often refers to the Schengen Border Code instead of transposing the Directive’s provisions. However, the Schengen Border Code not always covers all possible situations referred to in the Directive. The analysis below specifies how the conformity problems have an impact on practical implementation and on the enforceability of the provisions referred to in Directive 2004/38/EC. i. Incomplete transposition •

Article 3(2): “Other family members”

Article 3(2) a) of the Directive requires MS to facilitate entry and residence for any other family members not falling under the definition in point 2 of Article 2 of the Directive who, in the country from which they have come, are dependants or members of the household of the Union citizen having the primary right of residence, or where serious health grounds strictly require the personal care of the family member by the Union citizen. The Lithuanian legislation does not provide such facilitation for entry and residence for any other family members who do not fall under the definition of ‘family members of an EU Member State citizen’, provided in Article 2, section 4 of the Law on Legal Status of Aliens. The same comment is pertinent for Article 3(2) b) of the Directive regarding a “partner with whom the Union citizen has a durable relationship, duly attested”. •

Article 5(4): Opportunity to obtain the necessary documents to cross the border

The Lithuanian legislation does not provide a specific regime for Union citizens or their family members crossing the border. It establishes a common regime for all foreigners in accordance with the Schengen Border Code. However, the Schengen Borders Code does not cover all possible situations where third country family members or Union citizens may not have the necessary documents to cross the border referred to in Article 5(4) of the Directive. It should be noted that in this context, in practice Lithuania ensures Union citizens and their family members reasonable opportunities and a reasonable period of time: a concerned persons can reach the embassy of his state, use telephone/fax and other communication means to communicate with the authorities and to receive relevant documents. Milieu Ltd & Europa Institute

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Article 7(3): Retention of the status of workers

Lithuania does not provide that involuntary unemployment after having been employed for more than one year and being registered as a jobseeker with the relevant employment office forms a ground for retention of the status of worker or self-employed person Article 7(3) b). Nor it has transposed letters c) (about involuntary unemployment after completing a fixed term contract of less than 1 year) and d) (on vocational training). •

Article 8: Administrative formalities for EU citizens

Article 8 of the Directive provides that for a period of residence longer than three months, the host Member State may require Union citizens to register with the relevant authorities. In such a case the registration certificate must be issued immediately (Article 8(2) of the Directive). Article 99, section 3 of the Law on Legal Status of Aliens, as last amended by the Law of 1st February 2008, requires the Ministry of Internal Affairs to establish a procedure regulating the issuance of the certificates for Union citizens who entered Lithuania for residence longer than 3 months in a 6-month period confirming their rights to reside in Lithuania. Following the above obligation, the Ministry of Internal Affairs on 25 July 2008 adopted order No 1V-290 on approval of Procedures on issuance of certificate confirming residence rights for a Citizen of a Member State of the European Union and Procedures on issuance, extension and revocation of residence permits for European Union citizen‘s family members who are not nationals of a Member State of EU. Due to the fact that this secondary legal act came into force on 3rd August 2008, (i.e. after this analysis had been completed), its provisions have not been analysed. Only those comments to the provisions which will be affected by this legal act are provided in section 3 of this study ‘Recent Developments’. The Law on Declaration of Place of Residence requires possession of a document certifying the Union citizens’ rights to reside in Lithuania. Article 4, section 1, paragraph 2 of this Law provides that a citizen of the European Union who has entered the Republic of Lithuania for more than three months in half a year ‘and has obtained the residence rights provided by the Republic of Lithuania Law on the Legal Status of Aliens’ must declare their place of residence in Lithuania. Under paragraph 15.2.2 of the Rules on Declaration of Place of Residence Data Management, when declaring their place of residence, Union citizens have to submit: either the ‘European Community citizen’s residence permit’; or a ‘document certifying that a person has obtained the right to live in the Republic of Lithuania; or the ‘European Community citizen’s permanent residence permit’; or the ‘document certifying that a person has obtained the right to live in the Republic of Lithuania permanently. Lack of a secondary legal act establishing the procedures on issuing the certificates confirming the Union citizens’ rights to reside in Lithuania makes it unclear how a Union citizen can obtain the documents needed for declaration of his place of residence. •

Article 14(4)(b): Protection against expulsion for jobseekers

The Lithuanian legislation does not provide an explicit prohibition of expulsion of jobseekers. Even if the legislation does not provide expulsion measures against the Union citizens who entered the territory of Lithuania in order to seek employment, such measures should be provided. •

Article 27: Not using public policy/public security as economic grounds

Overall, Article 27 of the Directive cannot be considered as transposed. This gap in transposition may be interpreted as not granting the same guarantees provided by the Directive regarding the personal conduct and the non consideration of previous convictions; and this even the rights of entry and residence can only be restricted in accordance with the Law on Administrative proceedings, which provides general legal principles of proportionality and requires the judges in administrative cases to actively participate in the examination of evidence, establishing all material circumstances for the case and make a comprehensive and objective review of the circumstances. Milieu Ltd & Europa Institute

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Article 28: Special protection against expulsion

The Lithuanian legislation does not provide that an expulsion decision against Union citizens who have resided in the host Member State for the previous 10 years, may not be taken, except on imperative grounds (Article 28 (3) a)). Other instances of incomplete transposition are provided in section 2 below. ii. Incorrect transposition •

Article 6 (1) : Special status of jobseekers:

Lithuanian legislation does not provide that jobseekers can stay in Lithuania for 6 months without fulfilling any conditions •

Article 7(2): Right of residence for family members who are not nationals of a Member State

The Lithuanian legislation does not state clearly the residence rights of Union citizen’s family members who are not citizens of the member states. The Law provides only the obligation to obtain an ‘EU residence permit’. This should be treated as ‘incorrect transposition’. •

Article 10: Residence cards for third country family members

Article 10 (1) of the Directive provides that the right of residence of family members of a Union citizen who are not nationals of a Member State shall be evidenced by the issuing of a document called ‘Residence card of a family member of a Union citizen’. Article 99, sections 2 and 3 of the Law on Legal Status of Aliens, as last amended by Law of 1st February 2008, requires that family members of an EU Member State national who are not citizens of the EU Member State, when entering the Republic of Lithuania for residence for longer than 3 months in a 6-month period accompanying the national of the EU Member State or joining him/her, must obtain the ‘EU residence permit’. Procedure regulating issuance, extension and withdrawal of the EU residence permit to the family members of the EU Member State national must be established by the Minister of the Internal Affairs. However, neither the existing procedures relating the issuing of the EU residence permit nor the other legal act foresee the issuance of a document called ‘Residence card of a family member of a Union citizen’. •

Article 16: Acquisition of the right of permanent residence after 5 years of residence

The Directive provides that ‘Union citizens who have resided legally for a continuous period of five years in the host Member State shall have the right of permanent residence‘. The Lithuanian legislation establishes a stricter term as compared to the Directive since it requires living ‘for the last 5 years’. •

Article 20: Permanent residence cards for third country family members

There is incorrect transposition of Article 20(2) of the Directive, since the Lithuanian legislation establishes different conditions for family members of a Lithuanian citizen who are not citizens of an EU Member State, and for family members of other Union citizens who are not citizens of an EU Member State. The national Law provides that a family member of a Lithuanian citizen ‘shall have the right to obtain the EU residence permit’, while, a family member of a Union citizen ‘must obtain an EU residence permit’. Other cases of incorrect transposition are provided in section 2 below. Milieu Ltd & Europa Institute

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iii. Minor instances of non-conformity •

Article 2(2): The definition of ‘family member’

Article 2(2)(b) of the Directive considers ‘the partner with whom the Union citizen has contracted a registered partnership, on the basis of the legislation of a Member State’ as a family member. The Civil Code of Lithuania treats registered partnership as equivalent to marriage. Neither the Civil Code nor the Law on Legal Status of Aliens provide that a registered partnership must be contracted on the basis of the legislation of a Member State. Therefore the definition of ‘family member’, referred to in Art. 2(2)(b) of the Directive has been transposed incompletely. The missing words ‘on the basis of the legislation of a Member State’ determines that a partnership registered on the basis of the legislation of any 3rd country has the same legal status as a partnership registered on the basis of legislation of a Member State. This does not create a conformity problem since the Lithuanian legislation creates in this respect more favourable conditions for acquiring the status of a family member of a Union citizen. However, implementation problems occur due to the lack of procedures on registration of partnership in the Lithuanian legislation, although the Civil Code requires that such procedures must be established by the law. The Supreme Court of Lithuania explained that until the procedures are established by a Law on Procedures for Registration of Partnership, partners can not register their partnership (Judgment of the Supreme Court of Lithuania of 26 April 2006 in civil case No 3K-3302/2006)4. Minor instances of non-conformity also occur when transposing Articles 8(3) and 8(5) of the Directive due to inconsistency in the Lithuanian legislation regarding the issuing of a document called ’EC residence permit’.

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http://www.lat.lt/default.aspx?item=tn_liteko&lang=1

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SUMMARY DATASHEET 1. Transposing legislation Transposition of Directive 2004/38/EC is mainly the result of three laws adopted by the Parliament of Lithuania (Seimas). The first partial transposition was obtained through the adoption of the Law on the Legal Status of Aliens (Lietuvos Respublikos įstatymas dėl užsieniečių teisinės padėties) No IX-2206 of 29 April 2004,5 which entered into force on 30 April 2004. The second partial transposition was obtained through the adoption of the amendments to the Law on Legal Status of Aliens by Law No X924 of 28 November 2006,6 which entered into force on 16 of December 2006. The third part of transposition is the result of the amendments to the Law on Legal Status of Aliens by Law No X-1442 of 1 February 20087, which entered into force on 22 February 2008. The following legal acts have been adopted or amended in order to transpose Directive 2004/38/EC: • • • • •

Format for the Certificate Confirming a Union citizen’s Residence Rights in Lithuania, approved by the Ministry of Internal Affairs order No IV-158 of 6 May 2008;8 The Law on Declaration of Residence Place No VIII-840 of 2 July 1998, as amended by No X-961 of 2006-12-07,9 which regulates declaration of residence place in Lithuania including the declaration of residence place of Union citizens and their family members; Rules on Declaration of Residence Place Data Management, approved by the Director of Citizen Register Service under the Ministry of Internal Affairs order No (29)4R-18 of 8 April 2008,10 which specifies procedures on declaration of residence place in Lithuania; Statutes on the Register of Foreigners, approved by the Government of the Republic of Lithuania resolution No 1342 of 14 December 2005;11 Procedures on issuance of permanent residence certificates for citizens of Member States of the European Union, approved by the Ministry of Internal Affairs of the Republic of Lithuania order No 1V-369 of 25 October 2007;12

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Lietuvos Respublikos įstatymas dėl užsieniečių teisinės padėties, Valstybės žinios, 2004, No 73-2539, http://www.lat.lt/default.aspx?item=tn_liteko&lang=1 6 Įstatymo „Dėl užsieniečių teisinės padėties“ 2, 6, 7, 8, 11, 17, 18, 21, 25, 26, 28, 33, 34, 35, 40, 43, 46, 50, 51, 53, 54, 55, 56, 64, 79, 88, 90, 93, 97, 99, 100, 101, 102, 104, 106, 113, 115, 127, 130, 131, 132, 136, 138, 140 straipsnių pakeitimo, įstatymo papildymo 49(1), 101(1), 140(1) straipsniais, 30, 105 straipsnių pripažinimo netekusiais galios, X skyriaus pavadinimo pakeitimo bei Įstatymo priedo pakeitimo ir papildymo įstatymas, Valstybės žinios, 2006, No 137-5199 http://www3.lrs.lt/pls/inter3/dokpaieska.showdoc_l?p_id=288727 7 Įstatymo „Dėl užsieniečių teisinės padėties“ 2, 5, 8, 26, 32, 35, 40, 43, 46, 50, 53, 71, 72, 90, 99, 104, 113, 124, 125, 126, 127, 131, 133, 134 straipsnių, III skyriaus pirmojo skirsnio ir priedo pakeitimo ir papildymo, Įstatymo papildymo 49(2) straipsniu ir 7 straipsnio pripažinimo netekusiu galios įstatymas, Valstybės žinios, 2008, Nr. 22-803 http://www3.lrs.lt/pls/inter3/dokpaieska.showdoc_l?p_id=314800 8 Pažymos Europos Sąjungos valstybės narės piliečiui jo teisei gyventi Lietuvos Respublikoje patvirtinti formą, Valstybės žinios, 2008, Nr. 52-1934 http://www3.lrs.lt/pls/inter3/dokpaieska.showdoc_l?p_id=319461&p_query=&p_tr2= 9 Lietuvos Respublikos gyvenamosios vietos deklaravimo įstatymas, Valstybės žinios, Nr. 141-5395, http://www3.lrs.lt/pls/inter3/dokpaieska.showdoc_l?p_id=289812 10 Gyvenamosios vietos deklaravimo ir deklaravimo duomenų tvarkymo taisyklės, Valstybės žinios, 2008, Nr. 44-1673 Užsieniečių registro nuostatai, Valstybės žinios, 2005, No 147-5353 http://www3.lrs.lt/pls/inter3/dokpaieska.showdoc_l?p_id=267719&p_query=&p_tr2 11

Užsieniečių registro nuostatai, Valstybės žinios, 2005, No 147-5353 http://www3.lrs.lt/pls/inter3/dokpaieska.showdoc_l?p_id=267719&p_query=&p_tr2 12 Pažymos Europos Sąjungos valstybės narės piliečio teisei nuolat gyventi Lietuvos Respublikoje patvirtinti išdavimo tvarkos aprašas, Valstybės žinios, 2007, No 113-4607 http://www3.lrs.lt/pls/inter3/dokpaieska.showdoc_l?p_id=307851&p_query=&p_tr2= 13 Europos Sąjungos valstybės narės piliečio šeimos nario leidimo gyventi Lietuvos Respublikoje išdavimo, pratęsimo ir panaikinimo Europos Sąjungos valstybės narės piliečio šeimos nariams, kurie nėra Europos Sąjungos valstybės narės piliečiai, tvarkos aprašą, Valstybės žinios, 2007, No 113-4607 http://www3.lrs.lt/pls/inter3/dokpaieska.showdoc_l?p_id=307851&p_query=&p_tr2= Milieu Ltd & Europa Institute

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Procedures on issuance, extension and revocation of residence permits for European Union citizen‘s family members who are not nationals of a Member State of EU), approved by the Ministry of Internal Affairs of the Republic of Lithuania order No 1V-369 of 25 October 2007.13 The Ministry of Internal Affairs order No 1V-290 of 25 July 2008 on approval of Procedures on issuance of certificate confirming residence rights for a Citizen of a Member State of the European Union and Procedures on issuance, extension and revocation of residence permits for European Union citizen‘s family members who are not nationals of a Member State of EU14 (it came into force on 3rd August 2008, therefore its provisions are only commented in section 3 “Recent Developments”).

Specific provisions that are relevant for the transposition of the Directive are included in the following acts: • Law on Identity Cards (Lietuvos Respublikos asmens tapatybės kortelės įstatymas) No IX577 of 6 November 2001; • Passport Law (Lietuvos Respublikos paso įstatymas No IX-590 of 8 November 2001, as amended by No X-705 of 20 June 2006; • Description of Passport Format (Paso formos aprašymas), approved by the Minister of Internal Affairs of the Republic of Lithuania order No 1V-498 of 28 December 2006 ; • Rules on drawing up and administration of the list of foreigners to whom exit to the Republic of Lithuania is refused (Užsieniečių, kuriems draudžiama atvykti į Lietuvos Respubliką, sąrašo sudarymo ir tvarkymo taisyklės), approved by the Government of the Republic of Lithuania resolution No 436 of 20 April 2005; • Statutes on the Register of Foreigners (Užsieniečių registro nuostatai), approved by the Government of the Republic of Lithuania resolution No 1342 of 14 December 2005; • Procedures for Recognition of Travel Documents Giving the Rights for Entry to Lithuanian Republic (Kelionės dokumentų, kurie suteikia teisę užsieniečiui atvykti į Lietuvos Respubliką, pripažinimo tvarkos aprašas), approved by Order No V-101/1V-397 of the Minister of Internal Affairs of the Republic of Lithuania and the Minister of Foreign Affairs of the Republic of Lithuania of 21 November 2007; • Manual on Stamping of Travel Documents for Persons Crossing the Border (Asmenų, vykstančių per valstybės sieną, kelionės dokumentų žymėjimo instrukciją), approved by the State Border Protection Service upon the Minister of the Internal Affairs together with the Minister of Foreign Affairs Order (No 4-705 of 6 October 2006, as amended by order No 4841 of 16 November 2006; • Rules on submission of documents for issue of a visa, on visa issue at border control posts, on the extension of a period of stay in the Republic of Lithuania in possession of a visa and on cancellation of a visa (Dokumentų vizai gauti pateikimo, vizos išdavimo, taip pat ir vizos išdavimo pasienio kontrolės punktuose, buvimo Lietuvos Respublikoje turint vizą laiko pratęsimo, vizos panaikinimo taisyklės), approved by Order No 1V-280/V-109 of the Minister of the Internal Affairs of the Republic of Lithuania and the Minister of Foreign Affairs of the Republic of Lithuania of 2 September 2004; • Law on Consular Fees (Lietuvos Respublikos konsulinio mokesčio įstatymas), as amended by Law No X-1300 of 2007-10-18; • Consular fees tariffs of the Reublic of Lithuania (Lietuvos Respublikos konsulinio mokesčio tarifai), approved by the Government Resolution No 1135 of 16 November 1994, as amended by No 1347 of 27 October 2004; • The Minister of Labour and Social Security order No A1-22 of 29 January 2007 on settlement of livelihood size which may be treated as sufficient resources for aliens requesting of residence permit in the Republic of Lithuania (Lietuvos Respublikos socialinės apsaugos ir

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darbo ministro 2007 m. sausio 29 d. įsakymas Nr. A1-22 ,,Dėl pragyvenimo Lietuvos Respublikoje lėšų dydžio, kuris gali būti laikomas pakankamu pragyventi Lietuvos Respublikoje užsieniečiui, prašančiam išduoti leidimą gyventi, nustatymo); • Republic of Lithuania Law on Social Services (Lietuvos Respublikos socialinių paslaugų įstatymas) No X-493 of 19 January 2006; • Rules on issuance of temporary residence permit in the Republic of Lithuania for aliens and assessment of fictitious marriage (Leidimų laikinai gyventi Lietuvos Respublikoje užsieniečiams išdavimo bei fiktyvios santuokos sudarymo įvertinimo taisyklės), approved by the Minister of the Internal Affairs of the Republic of Lithuania order No 1V-329 of 12 October 2005 as amended by No 1V-242 of 28 June 2007. • Rules on making and implementation of decisions on expulsion, expulsion, re-entering and transit of foreigners through the border of the republic of Lithuania (Sprendimų dėl užsieniečio įpareigojimo išvykti, išsiuntimo, grąžinimo ir vykimo tranzitu per Lietuvos Respublikos teritoriją priėmimo ir jų vykdymo taisyklės), adopted by the Minister of Internal Affairs order No 1v-429 of 24 December 2004; • The Labour Code (Lietuvos Respublikos darbo kodeksas), No IX-926 of 4 July 2002, as amended by No X-458 of 20 December 2005; http://www3.lrs.lt/pls/inter3/dokpaieska.showdoc_l?p_id=169334 • The Civil Code of the Republic of Lithuania (Lietuvos Respublikos civilinis kodeksas), No VIII-1864 of 18 July 2000. 2. Assessment of the transposition Lithuanian authorities made a great effort to transpose the Directive. However, some of the transposing legal acts are still under preparation. Conformity problems concern issues of incomplete transposition; some non-transpositions cases appear due to inconsistencies of the transposing provisions, particularly when transposing administrative formalities related to the issuance of the documents certifying the residence for Union citizens and their family members. The tables below provide an overview of the conformity problems. a) Incomplete transposition or non-transposition Article 3(2)(a) Article 10(2)(e) (f) Article 3(2)(b) Article 3(2)(b), 2nd subparagraph Article 5(4)

Article 7(3) (b), (c), (d)

Article 8(2) Milieu Ltd & Europa Institute

Incomplete transposition: the Lithuanian legislation has not provided specific measures related to the facilitation for Union citizens’ family members who are ‘dependants or members of the household of the Union citizen having the primary right of residence or where serious health grounds strictly require the personal care of the family member by the Union citizen’. This Article is incompletely transposed, because Lithuania has not provided specific measures for the facilitation for Union citizens’ family members who are ‘the partner with whom the Union citizen has a durable relationship, duly attested’. Incomplete transposition, although the application of general administrative rules gives the authorities the obligation to examine whether the conditions laid down in any legislation are fulfilled, and to justify any denial of right. However, Lithuania does not oblige the administration to undertake an “extensive” examination of the personal circumstances. Incomplete transposition. Lithuania does not provide a specific regime for Union citizens and their family members who are not nationals of a MS to obtain the necessary travel documents or to corroborate or prove the right of free movement or residence when the individual does not have the necessary travel documents. Incomplete transposition of par. b), c) and d) - on the retention of the status of worker or selfemployed person). The Lithuanian legislation foresees the unemployment insurance benefit for persons who are dismissed from work without any fault on the part of the concerned employee. It also foresees vocational training for persons, who have been notified about dismissal from work without any fault on the part of the concerned employee. However, the Lithuanian legislation does not provide that such termination of the employment contract or the vocational training form grounds for retention of the status of worker or self-employed person. Incomplete transposition since ‘The procedure regulating the issue of the certificate for an EU Conformity Study Directive 2004/38/EC for Lithuania 2008 14/60


Article 8(5) (e) (f) Art.13.2 (b) (d) Art. 14(2) second indent Article 14(4)(b) Article 20(1) Article 20(2)

Article 27(1) Article 27(2)

Article 27(4) Article 28(2)

Article 28(3) (a) (b)

Article 29 (1) and (2)

Article 32(1) Milieu Ltd & Europa Institute

member state national confirming his right to reside in the Republic of Lithuania’ as referred to in Article 99, section 3 of the Law on Legal Status of Aliens, had not existed when analysing the conformity. Note: The Ministry of Internal Affairs order No 1V-290 of 25 July 2008 on approval of Procedures on issuance of certificate confirming residence rights for a Citizen of a Member State of the European Union and Procedures on issuance, extension and revocation of residence permits for European Union citizen‘s family members who are not nationals of a Member State of EU came into force on 3rd August 2008, therefore its provisions have not been analysed. Only comments to provisions which will be affected by this legal act are provided in section 3 of this study. The Lithuanian legislation does not provide any facilitation for entry and residence for any other family members not falling under the definition of ‘family members of an EU Member State citizen. No documents are requested because there is no specific regime applicable. For this reason, the lack of transposition cannot be considered as a more favorable treatment. Incomplete transposition since the Lithuanian legislation does not include ‘agreement between the spouses’ as a ground for not to losing the rights of residence. Lithuania does not provide that verifications can only be carried out in specific cases, where there is a reasonable doubt as to whether a Union citizen and their family members satisfy the conditions. This can be treated as a gap in transposition. Incomplete transposition occurs since the Lithuanian legislation does not provide an explicit prohibition of expulsion of jobseekers. The time-limit for issuance has not been transposed. Incomplete transposition, since the Lithuanian legislation does not require the submission of the application before an EC Residence permit expires. A family member, who is not a national of a Member State, has the right to apply for the renewal of his/her EC residence permit when his/her EC residence permit expires. Incomplete transposition, since the Lithuanian legislation does not include the Directive’s provision that the grounds for restriction of the freedom of movement and residence of Union citizens and their family members ‘shall not be invoked to serve economic ends’. Gap in transposition occurs. Although the rights of entry and the rights of residence can be restricted only in accordance with the Law on Administrative proceedings, which provides general legal principles of proportionality and requires the judges in administrative cases to actively participate in the examination of evidence, establishing all the material circumstances for the case and to make a comprehensive and objective review of the said circumstances, non transposition of Article 27(2) of the Directive may be interpreted as not granting the same guarantees provided by the Directive regarding the personal conduct and the non consideration of previous convictions. Not transposed. Incomplete transposition. The Directive provides that an expulsion decision against Union citizens and their family members, who have the rights of permanent residence, may not be taken, except on serious grounds of public policy or public security. However, Art. 106, section 1 in conjunction with Art. 106, section 4 of LLSoA does not include ‘serious grounds of public policy or public security’. Therefore, the Lithuanian legislation allows the expulsions on less serious grounds. Gap in transposition occurs. The Lithuanian legislation does not provide that an expulsion decision against Union citizens, who have resided in the host Member state for the previous 10 years, may not be taken, except on imperative grounds of public security, as defined by the Member State. Lithuania also does not provide that an expulsion decision against Union citizens who is a minor, except if the expulsion is necessary for the best interests of the child, (as provided for in the United Nations Convention on the Rights of the Child of 20 November 1989), may not be taken, except on imperative grounds of public security, as defined by the Member State. Therefore, the Lithuanian legislation allows the expulsions on less serious grounds. Incomplete transposition. The Directive provides specific categories of diseases, which can only justify measures restricting freedom of movement. The Lithuanian legislation only includes general provisions that ‘freedom of movement may be restricted in the Republic of Lithuania only in the interests of state security or public order, or public health or morals, for crime prevention purposes or seeking to protect the rights and freedoms of other persons’. Therefore, transposition of Article 29 is incomplete. Specific provisions referred to in Article 32(1) of the Directive are not transposed. The Conformity Study Directive 2004/38/EC for Lithuania 2008 15/60


Lithuanian legislation includes the material circumstances of the case as a ground for lifting of the exclusion decision in accordance with renewal administrative proceedings. Providing the rights for the persons concerned to submit a petition for the renewal of the proceedings, the Lithuanian legislation provides for grounds for applying to the court for renewal of the proceedings.

b) Incorrect or imprecise/ambiguous transposition Article 6 (1) Article 7(2) Article 8(1) Article 9(1) Article 10(1) Article 13(2)(c) Article 16(1) Article 16(2) Article 16(3) Article 25(1)

Lithuanian legislation does not provide that jobseekers can stay in Lithuania for 6 months without fulfilling any conditions The Lithuanian legislation does not state clearly the residence rights of Union citizen’s family members who are not citizens of the member states. The Law provides only the obligation to obtain an ‘EU residence permit’. This should be treated as ‘incorrect transposition’. The transposition of Article 8(1) of the Directive is incorrect, since the Directive defines the period of residence ‘from the date of arrival’ (see: article 8(2) of the Directive) but the Lithuanian legislation defines an aggregated residence in half a year. Incorrect transposition: the Directive requires the issuance of a ‘Residence card of a family member of a Union citizen’, while the Lithuanian legislation (Art. 99, section 2 of the Law on Legal Status of Aliens) requires the issuance of an EU residence permit (full title: Residence permit in the Republic of Lithuania of a family member of a citizen of an EU Member State). Transposition is incorrect, since particularly difficult circumstances is transposed as situations caused by fault of the spouse who is the Union citizen Incorrect transposition. the Directive provides that ‘Union citizens who have legally resided for a continuous period of five years in the host Member State shall have the right of permanent residence‘. In this regard the Lithuanian legislation establishes a stricter term than the Directive. Article 104, section 1 and section 2 of the Law on Legal Status of Aliens require living ‘for the last 5 years’. Incorrect transposition. The Lithuanian legislation (Article 2, section 4(1) of LLSoA) defines ‘Residence permit in the Republic of Lithuania of a family member of a citizen of an EU Member State as a document ‘granting a member of the family of the citizen of an EU Member State, who is not a citizen of an EU Member State, the right to live in the Republic of Lithuania’. In general, under the Lithuanian legislation the documents should be requested before a person can exercise a right.

c) Minor instances of non-conformity Article 2(2) (b) Article 40

Milieu Ltd & Europa Institute

Minor instances of non-conformity due to missing of words ‘on the basis of the legislation of a Member State’ when transposing the definition of “family member” referred to in Article 2(2)(b) of the Directive. Delays with the transposition occurred. LLSoA was amended on 1st of February 2008 in order to comply with the requirements of the Directive.

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ABBREVIATIONS USED ECJ

European Court of Justice

Art.

Article

LDRP:

The Republic of Lithuania Law on Declaration of Place of Residence

LLSoA

Law on Legal Status of Aliens

MoI

Ministry of Internal Affairs

MoSSL

Ministry of Social Security and Labour

MS

Member State(s)

Schengen Borders Code:

Regulation (EC) No 562/2006 of the European Parliament and the Council of 15 March 2006 establishing a Community Code on the rules governing the movement of persons across borders

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1 INTRODUCTION This conformity study analyses in detail the provisions of Directive 2004/38/EC on the free movement of EU citizens in its consolidated version, and it compares it with the legislation in place in Lithuania. Directive 2004/38/EC repealed the earlier directives on free movement of persons (Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC) as from 30 April 2006. EU citizenship gives every Union citizen the right to move and to reside freely within the territory of the Member States. The facilitation and promotion of this right, which is at the same time one of the fundamental freedoms of the internal market, is the objective of Directive 2004/38/EC. A second objective of Directive 2004/38/EC was to codify and review the various pieces of legislation and caselaw dealing with this issue. Free movement as a fundamental freedom of the internal market Free movement is one of the fundamental freedoms of the internal market and can therefore only be restricted in a limited number of pre-determined circumstances. Thus, national legislation cannot adopt more restrictive legislation than provided for in the Directive. Directive 2004/38/EC introduces, on the one hand, a uniform approach regarding the formalities that Member States can impose upon EU citizens residing in their territory. These formalities are expressly established in the Directive and restricted in function of the duration of the stay in the Member States. •

For a stay of less than three months, the only formality a Member State can impose is the presentation of a valid passport or national identity card.

For residence of more than three months, a Member State can only require the EU citizen to register in the population register of the place of residence. This registration needs to be validated immediately if a certain number of conditions are to be complied with. The Member State can only require the EU citizen to present proof that he/she is a worker, self-employed person, a student or has sufficient resources not to become a burden upon the social security system of the Member State. Member States cannot lay down a fixed amount of what they consider to be “sufficient resources”, but must always take into account the personal situation of the person concerned. Family members of the EU citizen will have to present an identity document and proof of the family link to an EU citizen.

After five years of continuous residence in a Member State, an EU citizen obtains a right to permanent residence. The host Member State shall issue a document certifying permanent residence. A permanent resident has the right to be treated equally to a national of the Member State.

On the other hand, the Directive also determines and clarifies the only acceptable reasons for restriction of the free movement of citizens by Member State authorities, namely for reasons of public order, public security and public health. (For the interpretation and conditions of such exceptions, it is important to rely upon the case-law of the Court of Justice.) These measures guarantee a strong protection against expulsion for EU citizens who have been longterm residents in another Member State. Such measures need to be proportionate and shall always look at the personal conduct of the individual concerned which must represent a “genuine, present and sufficiently serious threat affecting one of the fundamental interests of society”. In addition, the Directive establishes some procedural safeguards in case an expulsion decision is considered. Milieu Ltd & Europa Institute

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1.1

OVERVIEW OF THE LEGAL FRAMEWORK IN LITHUANIA

The Lithuanian legal system is based on a codification that follows the legal traditions of the European continental model and more precisely, the German model. During the Soviet occupation this legal model was altered to conform to the “Soviet” legal system. Since restoration of statehood of the Republic of Lithuania in 11 March 1990, the legal system has been reformed to meet the demands of social and economic changes. The priority of the reform was the harmonisation of the Lithuanian legal provisions with the European Union legislation and improving the functioning of the system of administration and the court system. The Constitution of the Republic of Lithuania was adopted by referendum on 25 October 1992. It created the legal bases for the overall legal system. The Lithuanian legal system consists of codes (the Civil Code; the Civil Procedure Code; the Criminal Code; the Criminal Procedure Code; the Code of Administrative Offences, etc) and other laws (e.g. the Law on Legal Status of Aliens) as independent instruments for regulating specific branches of public relations. International and the Community laws are superior to national law. Jurisprudence and legal precedents are not a source of law, however. The Supreme Court of the Republic of Lithuania and the Supreme Administrative Court of the Republic of Lithuania are competent to interpret laws and other legal acts. Their interpretations found in decisions or rulings must be taken into account by courts and other institutions as well as by other entities when applying the law or other legal acts. The courts are fundamental tools for the implementation of the constitutional principle to ensure access to justice for any person who considers that his rights are infringed or legally protected interests are damaged. 1.2

FRAMEWORK FOR TRANSPOSITION & IMPLEMENTATION OF DIRECTIVE 2004/38/EC IN LITHUANIA 1.2.1

Distribution of competences according to the national Constitution

The Constitution of the Republic of Lithuania created the legal bases for distribution of competences between the Parliament (Seimas), the President of the Republic and the Government, and the Judiciary.

Under the Constitution, the Government resolutions and other regulations may regulate relations only in the cases and to the extent determined by the codes and the other laws adopted by the Parliament. Under the Law on Public Administration, any administrative act, e.g., a statute, rules, regulations or other legal act, including an individual administrative act, for the purpose of implementation of the laws made by an administrative body must be issued within the scope of its legal authority (legality principle). The Law provides that administrative bodies and officials must act in “good faith” and in proportion to the purpose for which the power has been conferred (proportionality principle), and administrative bodies must take into account “relevant considerations”, acting reasonably and objectively. The Law on Legal Status of Aliens provides general principles: foreigners enjoy the rights and freedoms provided by the Constitution of the Republic of Lithuania, international agreements, laws of the Republic of Lithuania and legal acts of the European Union; foreigners are equal before the law without distinction as to sex, race, nationality, language, religion, origin, social status, religion, convictions or views; foreigners must observe the Constitution of the Republic of Lithuania, laws and other legal acts of the Republic of Lithuania. These general principles are developed by the secondary legislation. Milieu Ltd & Europa Institute

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Distribution of competences concerning transposition and implementation of Directive 2004/38/EC is mainly the result of the provisions of the Law on Legal Status of Aliens. Pursuant to the Law on Legal Status of Aliens the Minister of Internal Affairs is responsible for development of the majority of secondary legal acts and administrative provisions for implementing the Directive. The main responsibilities of the Ministry of Internal Affairs are in the following areas: • Adoption of procedures regulating issuance of the certificate for EU Member State nationals confirming their rights to reside in Lithuania and issuance, extension and withdrawal of the EU residence permit to the family members of the EU member state nationals; • Establishment of exceptional cases when the right to permanently reside in Lithuania is granted to an EU member state national and his family members who have been legally resident in the Republic of Lithuania for less than 5 years; • Establishment of procedures on making decisions to depart and expulsion; • Establishment of procedures on issuance of alien’s passport for foreign nationals who are entitled to temporary or permanent residence in the Republic of Lithuania but do not possess a valid passport of a foreign national or an equivalent travel document; or if it has been lost or destroyed and the foreign national cannot receive it from the competent institutions of his country of origin for objective reasons. Some of the secondary legal acts have been developed by two ministries: the Ministry of Internal Affairs and the Ministry of Foreign Affairs. Those are: procedures regulating the recognition of valid travel documents of aliens, entitling the alien to come to Lithuania; establishment of conditions for the issue of a visa at the border checkpoint; and listing of the institutions and agencies where aliens are issued visas. 1.2.2

General description of organisation of implementing Directive 2004/38/EC Lithuania

national

authorities

The Ministry of Internal Affairs and its institutions are responsible for the implementation of the state policy in the fields of legal status of foreigners. The Migration Department under the Ministry of Internal Affairs is responsible for the implementation of the provisions of the Law on Legal Status Aliens. The Migration Department issues identity documents to citizens of the Republic of Lithuania and to citizens of any other foreign states and stateless persons. It also issues visas and the registration certificates and EC residence permits. The State Border Protection Service under the Ministry of the Internal Affairs at the behest of the General Commissar of the Police of Lithuania may apply to Vilnius district administrative court with a request to adopt a decision to withdraw the alien’s right to reside in Lithuania and/or expel the alien from Lithuania on the grounds of threat he poses to public policy, indicated in the Law on Legal Status of Aliens.

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Municipalities perform the function of keeping records of the data of declaration and of the persons who do not have a place of residence. In municipalities where wards are founded, the functions of a declaration institution shall be carried out by a ward and in municipalities where wards are not founded or in territories of municipalities which are not attributed to wards, the functions of a declaration institution shall be carried out by another division of the municipal administration. At the request of the individual in question, the declaration institution shall issue a document confirming their declared place of residence.

2 LEGAL ANALYSIS 2004/38/EC

OF

THE

TRANSPOSING

MEASURES

FOR

DIRECTIVE

The requirements of Directive 2004/38/EC are mainly correctly transposed by the Law on Legal Status of Aliens and its amendments. The Law on Legal status of Aliens regulates both: the legal status of Union citizens and the legal status of other foreigners. Such approach renders the transposing provisions quite complex. It seems that the legislator sought to achieve transposition of the Directive by minimum changes to the provisions of the Law on Legal Status of Aliens. Therefore, the transposing provisions of the Law on Legal Status of Aliens are too general. A large amount of secondary legislation was needed to specify and clarify those provisions. The secondary legal acts also directly transpose the Directive’s requirements, particularly concerning administrative formalities (registration of residence place, issuance of resident permits, etc). The fragmentation of the transposing provisions into a variety of secondary legal acts leads to inconsistencies in the transposing provisions. The conformity problems when incorporating the Directive’s provision into the Lithuanian legal system are analysed below in detail. 2.1

Definitions, family members and beneficiaries

Definitions: the concept of “family members” (Article 2) In general, the definitions have been correctly transposed by the Law on Legal Status of Aliens. The only conformity problem relates the transposition of Article 2(2)(b): •

Registered partnerships (Article 2(2)(b))

The Civil Code of Lithuania considers registered partnerships as equivalent to marriages. As a consequence, Article 2, section 4, of the Law on Legal Status of Aliens has included registered partnerships in the definition of family members. The definition does not provide that a registered partnership must be contracted on the basis of the legislation of a Member State. Therefore, partnerships registered on the basis of the legislation of any 3rd country (even if they are not EU Member States) are recognised in Lithuania. This minor instance of non-conformity does not create a real conformity problem since the Lithuanian legislation establishes more favourable conditions for acquiring the status of a family member of a Union citizen.

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However, it should be noticed that the Civil Code also requires that a special law on partnership has to establish the procedures on registration of partnership. Such a law does not yet exist in Lithuania. The Supreme Court of Lithuania explained that until the partnership procedures are established, partners can not register their partnership (see: Judgment of the Supreme Court of Lithuania of 26 April 2006 in civil case No 3K-3-302/2006)15. It should also be noted in this context that the Civil Code defines the concept of marriage as a voluntary agreement between a man and a woman to create legal family relations executed following the procedures provided by law. A man and a woman who have registered their marriage following the procedure provided in the law shall be deemed to be spouses. Therefore, Lithuania does not recognise same-sex marriage. •

The host Member State (Article 2(3))

Lithuania does not define the term ‘Host Member State’. The Law on Legal Status of Aliens regulates the entry and residence in Lithuania of Union citizens and their family members. It is obvious that Lithuania is a ‘Host Member State’ for all foreigners including citizens of EU Member States who move to Lithuania. The territorial scope is a consequence of the absence of any precision or limitation, which means that the legislation applies to the whole territory of Lithuania. No legal doubts can be thrown on the issue; therefore the Lithuanian approach represents an effective transposition of the present Directive’s provision. Beneficiaries and facilitation of entry and residence (Article 3) Article 3 deals with the beneficiaries of the Directive and also imposes an obligation on the Member States to facilitate entry for other family members (essentially, members of the extended family). This category includes: members of the household, other dependants, persons who need the special care of the Union due to health reasons, and durable partners. •

Union citizens and core family members (Article 3(1))

Article 3(1) of the Directive provides that the Directive shall apply to all citizens who move to or reside in a Member State other than that of which they are a national, and to their family members (as defined in point 2 of Article 2) who accompany or join them. Article 3.1 of the Directive has been correctly transposed. Lithuania provides the main rights of Union citizens and their family members who join and accompany Union citizen: Article 97 of the Law on Legal Status Aliens provides the rights to enter and stay in Lithuania for up to three months; Article 101, sections 1 and 2 of the Law provides the rights to reside in the Republic of Lithuania for a period longer than 3 months and Article 104 provides grounds for permanent residence. Therefore, the Law on Legal Status Aliens applies to all Union citizens who move to or reside in Lithuania and to the family members, who accompany or join them. More favorable conditions for family members accompanying a Lithuanian citizen to obtain residence permits, (referred to in Article 101 section 2 of the Law) is considered as incorrect transposition. In particular, in Article 101, section 2 reference to “or joining him from the territory of another EU Member State”, relates to the very specific case when a family member is ‘accompanying a citizen of the Republic of Lithuania’. This provision provides more favorable conditions for family members accompanying a Lithuanian citizen; however it cannot be concluded that if the family member comes from a third country (e.g. Nigeria) to join the Union citizen, it would not be covered by the legislation.

15

http://www.lat.lt/default.aspx?item=tn_liteko&lang=1

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Other family members (Article 3(2))

There is no specific transposing measure in Lithuania regarding the facilitation of family members not falling under the definition of “family member” as noted above. Therefore, general rules on immigration apply to such groups of ‘family members’. Article 3(2)(a) [on other dependants and members of the household] and (b) [on partners who shall have the entry and residence facilitated ] has not been transposed. Article 3(2) second subparagraph has not been transposed either. Under this provision, when facilitating entry and residence of extended family members, Member States have to “undertake an extensive examination of the personal circumstances and to justify any denial of entry or residence”. Application of general administrative rules gives the authorities the obligation to examine if the conditions laid down in any legislation are fulfilled, and to justify any denial of rights. Such an examination must consider personal circumstances. In case of doubt, the Lithuanian authorities therefore would have to examine the personal circumstances and justify any denial of entry or residence. However, special provisions obligating the administration to undertake an extensive examination of the personal circumstances are important for enforceability of Article 3(2) of the Directive. In any case, since the legislation has not established any specific facilitation procedure for extended family members, the examination of the personal circumstances has not been transposed either. This lack of transposition of Article 3(2)’s obligation of entry and residence for extended family members should be kept in mind when analysing Articles 5, 6, 7-10, 12-13, 16-20. Extended family members are not covered by those provisions. The general immigration rules will apply and so there is no facilitation for obtaining of visas for entry, residence for more than three months, retention of the right of residence, or acquisition of the right of permanent residence. 2.2

Rights of exit and entry

Right of exit (Article 4) Article 4 of the Directive provides that Union citizens with a valid identity card or passport and their family members who are not nationals of a Member State and who hold a valid passport have the right to leave the territory of a Member State to travel to another Member State. There are no specific provisions in the Lithuanian legislation on this issue. Article 5 section 1 of LLSoA provides for the application of the Schengen Borders Code (Regulation 562/2006). Lithuania became a Schengen State on 21 December 2007. Therefore, the Schengen Borders Code is applicable for foreigners leaving the territory of Lithuania. It allows crossing internal borders at any point without a border check. Restrictions can only be established by law according to Article 124 section 3 of LLSoA. In addition, Article 135, section 1 lists the cases where exit is considered illegal (mainly departure through non authorised cross-border post; with forged documents; when there are restrictions of freedom of movement; or departure with no valid travel documents. With regard to restrictions of freedom of movement, these are linked to the criminal prosecution, for example). As to valid documents, Article 2 Section 10 LLSoA defines a travel document as “passport of a foreign citizen or a travel document equivalent to it, intended for travelling to a foreign country and recognised in the Republic of Lithuania”. All these provisions, including the Schengen Borders Code, ensures that Union citizens with a valid identity card or passport and their family members who are not nationals of a Member State and who hold a valid passport have the right to leave the territory of Lithuania to travel to another Member State. No exit visas are requested. For these reasons, the transposition has been considered correct. Regarding Identity cards and passports (Article 4(3) and (4)), Article 2 of the Identity Cards Law requires issuance of identity cards for Lithuanian citizens as the main personal document confirming Milieu Ltd & Europa Institute

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their identity. Pursuant to Article 4, section 1 paragraph 6 of the Identity Card Law an identity card must state the nationality of its holder. Pursuant to Article 5, sections 1, the institutions authorised by the Ministry of Internal Affairs must issue or renew identity cards. The law also defines those cases when an identity card must be renewed. Pursuant to paragraph 1 of MoI order 1V-498, Lithuanian passports fulfil EU standards laid down by Council Regulation (EC) No 2252/2004 and appropriate resolutions of the representatives of the governments of the Member States, meeting within the Council. These passports are therefore valid for all MS and countries through which the holder must pass when travelling between MS. Passports issued after the 2nd January 2008 are valid from the date of issue for 10 years for adult citizens and persons over 18 years; 5 years for persons between 5 and 18 years of age; and 2 years for persons below the age of 5 years. If a child of age below the age of 5 years is to spend more than 2 years in a foreign country, a passport may be issued with an extended validity which cannot exceed 5 years. Right of entry (Article 5) Article 5 provides a general right of entry for Union citizens and family members. In general terms this has been transposed adequately by the Law on Legal Status of Aliens and secondary legal act – the Minister of Internal Affairs Order No 397. Article 5, section 1 of the Law provides for the application of the Schengen Borders Code (Regulation 562/2006) when crossing the internal border. It allows crossing internal borders at any point without a border check. Therefore, the Schengen Borders Code is applicable for foreigners leaving the territory of Lithuania. Annex of the Order No 397 provides a precise list of documents needed to enter Lithuania. Union citizens are allowed to enter with a valid ID card or passport. Article 5(2) of the Directive provides that possession of a valid ‘residence card referred to in Article 10’ shall exempt family members who are not nationals of a Member State from the visa requirement. Article 10 of the Directive requires that this document has to be called as ‘Residence card of a family member of a Union citizen’. Lithuania applies Regulation (EC) No 539/2001 of 15 March 2001 as it is required by the Directive. Lithuania does not require the visa for a Union citizen’s family members who possess a permit to live in Lithuania called an ‘EU residence permit’. Lithuanian document ‘EU residence permit’ practically means the ‘Residence card of a family member of a Union citizen’ as referred to in the Directive. The differences in the names of the document cannot create a real transposition problem. However, from the point of view of legal technique, Article 11, section 4 of the Law on the Legal Status of Aliens is not precise. This article provides that ‘a family member of a citizen of an EU Member State who is not a citizen of an EU Member State, but has a residence permit referred to in Directive 2004/38/EC, shall have the rights to enter to the Republic of Lithuania and stay in it without visa for up to three-months’. The wording may be wrongly interpreted that family members holding a residence card need a visa in order to stay in Lithuania for more than 3 months. In reality this provision means that the family member, holding a residence permit issued in other Member State, may enter to Lithuania without a visa and stay in it for up to 3 months, but after this period he has to receive ‘EU residence permit’ from Lithuanian authorities. Lawyers from the Ministry of Internal Affairs (the ministry which has initiated the amendment to the Law) also have such understanding of Article 11, section 4 of the Law on Legal Status of Aliens. According to Article 5(3) of the Directive “the host Member State shall not place an entry or exit stamp in the passport of family members who are not nationals of a Member State provided that they present the residence card provided for in Article 10”. Lithuania does not require stamping the passports of those Union citizen’s family members who are not nationals of a Member State if they have a temporary or permanent residence permit to live in the Republic of Lithuania. Paragraph 6.6 of Order 4-705 provides that travel documents (passports for 3rd country citizens) are stamped in Milieu Ltd & Europa Institute

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accordance with the Schengen Borders Code. Article 10(2) of the Schengen Borders Code provides that the travel documents of nationals of third countries who are members of the family of a Union citizen to whom Directive 2004/38/EC applies, but who do not show the residence card provided for in Article 10 of that Directive, shall be stamped on entry or exit. Article 5(4) is not transposed. Article 5(4) of the Directive creates a specific regime for Union citizen’s family members who are not nationals of a Member State when he/she is crossing the border(s). The Article requires Member States to give such persons every reasonable opportunity to obtain the necessary documents or have them brought to them within a reasonable period of time, or to corroborate or prove by other means that they are covered by the right of free movement and residence. Therefore, the Directive aims at establishing a more favourable regime than it is established for other 3rd country citizens. Lithuania ensures Union citizens and their family members reasonable opportunities and a reasonable period of time: a persons concerned can reach the embassy of his state, use telephone/fax and other means of communication to communicate to the authorities and receive relevant documents. However, the Lithuanian legal acts do not provide such a specific regime and only refer to the Schengen Practically Border Code. Pursuant to Article 5, section 1 of Law on Legal Status of Aliens, the Schengen Borders Code applies for Union citizen, or a family member who is not a national of a Member State entering to Lithuania. Article 11 of Schengen Borders Code provides opportunities for 3rd country persons to obtain the necessary documents or have them brought to them within a reasonable period of time, or to corroborate or prove by other means that they are covered by the right of free movement and residence. However, the Schengen Borders Code does not create specific regime for Union citizens’ family members but provides common regime for all 3rd country nationals. Therefore, Article 11 of the Schengen Borders Code does not meet the purpose of Article 5.4 of the Directive – the establishment of a more favourable regime for Union citizens’ family members that those for others 3rd county citizens. It should be remembered that the right for other family members to have entry facilitated has not been transposed (See comments in Article 3(2) of the Directive). 2.3

Right of residence 2.3.1

Right of residence for up to three months (Article 6)

Article 6 grants an initial right of residence for up to three months to EU citizens and any family members accompanying or joining them. Article 6 of the Directive is correctly transposed with the exception of the special status of jobseekers. Article 97, section 1 of the Law on Legal Status of Aliens provides that an alien who is a citizen of an EU Member State may enter Lithuania and stay in it for up to a three-month period counting from the first day of entry into Lithuania. Article 97, section 2 of the Law provides that family members of an EU Member State citizen may be admitted to Lithuania together with a citizen of an EU Member State or come on a visit to him and stay in for up to a three-month period counting from the first day of entry. Lithuania does not impose any conditions or formalities on Union citizens other than to have travel documents and not to constitute a threat to public security, public order or public health. For residence up to three months, the possession of a valid identity card or passport is sufficient. Family members who are not Union citizens have to have the same right where they are in possession of a valid passport substitute and where they accompany or join the Union citizen. These conditions are in line with the Directive. Regarding the special status granted to jobseekers by the ECJ case-law, however, the Lithuanian legislation is considered as incorrectly transposed, as it does not provide that jobseekers can stay in Lithuania for 6 months without fulfilling any conditions. Milieu Ltd & Europa Institute

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2.3.2

Right of residence for more than 3 months (Article 7-13)

(a) Conditions under Article 7 Article 7 provides for the right of residence to continue after three months where certain conditions are satisfied. These conditions have been adequately transposed into Lithuanian legislation. Article 101, section 1 of the Law on Legal Status of Aliens provides the grounds allowing Union citizens to reside in Lithuania for a longer than 3 months and Article 1011 of the Law provides the grounds allowing for a Union citizen’s family members to reside in Lithuania for longer than 3 months. However, some conformity issues have been identified regarding the overall transposition of Article 7 (Articles 7(2), 7(3) and 7(4)). •

Workers and self-employed persons

Article 7(1)(a) of the Directive is correctly transposed. Article 101, section 1, paragraph 1 of the Law on Legal Status of Aliens requires that a Union citizen, in order to reside in the Republic of Lithuania for a longer than 3 months, must be a worker or a self-employed person. However, the Law does not say that work place or self-employment place must be in Lithuania. This does not entail transposition problems since the implementation of legal acts clearly provides that work or self-employment must be in Lithuania. For example, Union citizens have to prove with documents that they work or are selfemployed in Lithuania for their permanent residence (see: the Ministry of Internal Affairs order No. 1V-369, paragraph 19). •

Non economic activities

Article 7(1)(b) is also correctly transposed. Article 101, section 1, paragraph 2 of the Law on Legal Status of Aliens requires that Union citizen, in order to reside in the Republic of Lithuania for longer than 3 months, must have: adequate means of subsistence for himself and for the accompanying or joining family members sufficient for his stay in the Republic of Lithuania; and a valid document as evidence that he has valid sickness insurance coverage. The issue of “sufficient resources” is analysed in Article 8(4) below. •

Students

Article 7(1)(c) is also correctly transposed. The Directive’s requirement to ‘assure the relevant national authority, by means of a declaration or by such equivalent means as they may choose, that they have sufficient resources for themselves and their family members’ has been transposed through the Application format for the EC residence permit only. EU citizens and their family members, when applying for an EC residence permit, have to fill in the Application form in which they also have to declare their ‘means and source of living in Lithuania (monthly in litas)’. These ‘means and source of living in Lithuania’ should be in line with the ‘livelihood size which may be treated as sufficient resources’, approved by the Ministry of Social Security and Labour order No. A1-22 (see Article 8 for more details). Note: MoI order No 1V-290 as a secondary legal act referred to in Article 99, section1 and 3 of LLSoA, came into force on 3rd August 2008, after this analysis had been completed, therefore it is not taken into account. Comments to the provisions which will be affected by this secondary legal act are only provided in section 3 of this study.

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Family members

Article 7(1)(d) has been correctly transposed by Article 101, section 1, paragraph 4 The Lithuanian legislation does not provide that a Union citizen, whom the family member is accompanying or joining, must satisfy the conditions provided by Article 7(1)(a), (b) or (c) of the Directive. This non transposition may create a situation when a Union citizen’s family member, who accompanies or joins him, does not satisfy the conditions provided by Article 7.1 (a) (b) or (c) of the Directive, which may be considered a more favourable treatment. However, in practice, the family member will have to fill in the application form which includes the purpose of stay, and will also have to show that is the family member of a Union citizen meeting the requirements. Therefore, the implementation of Article 7(1)(d) and 7(2) is as foreseen by the Directive and is even more burdensome in some regards (see below discussion of Article 8 and the documents to be submitted). Article 7(2) extends the right of residence to family members who are not nationals of a Member State, accompanying or joining the Union citizen in the host Member State. However, the Lithuanian legislation does not state clearly the residence rights of Union citizen’s family members who are not citizens of the member states. The Law provides only the obligation to obtain an ‘EU residence permit’. This should be treated as incorrect transposition. Pursuant to Article 7(4) of the Directive, the spouse, the registered partner provided for in Article 2(2)(b) and dependent children shall have the right of residence as family members of a Union citizen meeting the conditions under 1(c). The Directive does not require providing the right of residence for direct relatives in the ascending lines. Article 101, section 3 of LLSoA establishes more favorable requirements since it provides the rights of residence to ‘dependent relatives according to direct ascending line of a citizen of an EU Member State. •

Retention of the status of worker

Article 7(3) of the Directive lists the cases where a Union citizen who is no longer a worker or selfemployed person shall retain the status of worker or self-employed person. This provision has only been very incompletely transposed by Lithuanian law. Firstly, it should be indicated that there is no specific provision in the LLSoA. Provision must be found in the Labour Code. Secondly, only the situation regulated under Article 7(3)(a) of the Directive can be considered transposed. The provisions of Article 7(3)(a) of the Directive have been transposed correctly. The Labour code ensures retaining the status of workers or self-employed persons if any person, including Union citizens, are absent from work due to temporary loss of functional capacity for not more than 120 successive days or for not more than 140 days within the last 12 months, unless laws and other regulatory acts provide that in the case of a specific disease the position and duties shall be retained for a longer period. The Labour Code also provides that owners of individual (personal) enterprises, farmers and employers - natural persons may exercise labour rights and fulfil labour duties themselves. Effectively, this means that they retain the status of self-employed persons until their activities in Lithuania are not deregistered. However, there is nothing similar in the Labour Code that could cover the situations described in Article 7(3) (b), (c) and (d) of the Directive. The Labour Code and the Law on Unemployment foresee the unemployment insurance benefit for persons who are dismissed from work without any fault on the part of the employee concerned. Those laws also foresee vocational training for persons who have been notified about dismissal from work without any fault on the part of the employee concerned. However, the Lithuanian legislation does not provide that such termination of the employment contract or the vocational training form grounds for retention of rights of residence.

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(b) Administrative formalities for Union citizens (Article 8) Article 8 provides for the possibility for the host Member State to require Union citizens to register with the relevant authorities. This provision has been transposed adequately into the Lithuanian legislation by the Law on Legal Status of Aliens; the Law on Declaration of the Residence Place and the Ministry of Internal Affairs order No 1V-369. However, some conformity issues have been identified regarding the overall transposition of Article 8 (Articles 8(2) and 8(5)). •

Obligation to register (Article 8(1))

The Directive provides that for periods of residence longer than three months, Member States may require Union citizens to register periods of residence longer than three months. A residence approval certificate is required for citizens of a European Union Member State, who have come to live in Lithuania for a period longer than 3 months in half a year. Article 4, section1, paragraph 2 of Law on Declaration of Place of Residence and Article 99, section 1 correctly transpose Article 8(1) of the Directive. The Lithuanian legislation requires that for residence of more than three months in half a year Union citizens have to register in the population register of the place of residence. The Law on Declaration of Place of Residence states that: ‘citizen of the European Union […] who has entered to the Republic of Lithuania for more than three months within half a year and has obtained the residence rights provided by the Republic of Lithuania Law on the Legal Status of Aliens [..] must declare their place of residence in Lithuania’. The transposition of Article 8(1) of the Directive is incorrect, since the Directive defines the period of residence ‘from the date of arrival’ (see: article 8(2) of the Directive) but the Lithuanian legislation defines an aggregated residence in half a year. As such, someone residing in Lithuania for two months initially, and residing a second time in Lithuania during the same half year for another month would not be required to register according to the Directive, but would have to register under the Lithuanian legislation. The requirement to register for residence of three months in half a year in Lithuanian legislation aims to interpret the wording ‘residence longer than three months’ referred to in Article 8(1) of the Directive. This provision originates from the existing practice in Lithuanian legislation to describe the meaning of ‘residence’ when providing periods of residence. For example, article 4.1.3 of the Republic of Lithuania Law on Personal Income Tax No IX-1007 of 2002-07-02, as last amended by the Law No X-1543 of 2008-05-14 (see: http://www3.lrs.lt/pls/inter3/dokpaieska.showdoc_l?p_id=321613) provides that a resident of Lithuania means ‘any natural person who is present in Lithuania for a period or periods in the aggregate of 183 days or more during the tax period’. The tax period is one year. It seems that the legislator has used the above mentioned practice without taking into account the specific requirement of Article 8 of Directive 2004/38/EC that the Directive defines the period of residence ‘from the date of arrival’ but not an aggregated residence in half a year. The Lithuanian requirement to register in the population register of the place of residence is legally binding. In order to fulfill the obligation to declare their place of residence, Union citizens have to obtain a residence approval certificate. Consequently, a residence approval certificate is required for citizens of a European Union Member State, who have come to live in Lithuania for a period longer than 3 months in half a year. The Lithuanian legislation does not require Union citizens to declare their place of residence if they come to Lithuania for a period longer than 3 months but they spend less than 3 months in half a year in Lithuania. For example, a Union citizen comes to Lithuania for a period of 4 Milieu Ltd & Europa Institute

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months in a year but for two months he lives in Lithuania during the first half of the year and for the remaining two months he lives during the second half of the year. •

Time limit for registration and format of certificate (Article 8(2))

Under Article 8(2) the time limit for registration cannot be less than 3 months and the registration certificate should be issued immediately stating name, address and date of registration. This provision has not been completely transposed. Article 99, section 1 of the Law on Legal Status of Aliens foresees residence approval certificates for Union citizens entering to Lithuania for longer than three months. MoI order No 1V-290 as a secondary legal act referred to in Art. 99, section1 and 3 of LLSoA, came into force on 3rd August 2008, after this analysis had been completed, therefore it is not taken into account. Comments to the provisions which will be affected by this secondary legal act are only provided in the Conformity Study. Until 3rd August 2008 the document entitled ‘EC residence permit’, had confirmed residence rights for Union citizens who live in Lithuania for more than three months. Procedures on issuance of the document called ‘EC residence permit’ are established by MoI order 1V-369 on EC residence permit It should be noted that MoI order 1V-369 on EC residence permits aims at issuing the ‘EC residence permit’ for Union citizens family members, who themselves are not Union citizens; therefore application of this legal acts to Union citizens is complex. Under paragraphs paragraph 28 of MoI order 1V-369 on the EC residence permit the document called ‘EC residence permit’ has to be issued no later than 1 month from the date of receiving the application. This is not in line with the Directive’s requirement that says that a registration certificate must be issued immediately. Under Article 4, section1, paragraph 2 of the Law on Declaration of Place of Residence, the deadline for the registration is longer than three months from the date of arrival. Pursuant to the Rules on Declaration of Place of Residence and the Data Management, approved by the director of the Citizen Register Service under the Ministry of Internal Affairs order No (29)4R-18 of 8 April 2008, a registration certificate must be issued immediately (on the day of application) and at the latest within 3 working days (in case of technical reasons). •

Evidence to be presented (Article 8(3))

For residence longer than three months, the competent authority can just ask the Union citizen to register his place of residence. However, when registering place of residence, a Union citizen has to submit a ‘document certifying that a person has obtained the right to live in the Republic of Lithuania’. Existing procedures on issuance of a ‘document certifying that a person has obtained the right to live in the Republic of Lithuania’ are complicated due to inconsistency in Lithuanian legislation. This is because existing document certifying Union citizens rights to reside in Lithuania, called ‘EC residence permit’, means both: the certification of Union citizens’ rights to reside in Lithuania longer than three months and certification of Union citizen’s family members’ (who themselves are not Union citizens) rights to reside in Lithuania. As described above, MoI order No 1V-290 as a secondary legal act referred to in Art. 99, section1 and 3 of LLSoA, came into force on 3rd August 2008, after this analysis had been completed, so it is not taken into account. Comments to the provisions which will be affected by this secondary legal act are only provided in section 3 of this study. Until 3rd August 2008, the document entitled ‘EC residence permit’, confirmed residence rights for Union citizens who live in Lithuania for more than three months under Procedures on issuance of the document called ‘EC residence permit’ and are established by MoI order 1V-369 on the EC residence permit. Milieu Ltd & Europa Institute

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Pursuant to paragraphs 18.3, 19.1 and 19.4 MoI order 1V-369 regarding the EC residence permit, a document called ‘EC residence permit’ can be issued if a Union citizen submits a valid passport or identity card or other document certifying citizenship of European Union Member State and confirmation on engagement from the employer or a certificate of employment, or proof that he is a self-employed person. When filling the Application for issuance of the ‘EC residence permit’, a Union citizen has to declare means and sources of living in Lithuania during his/her period of residence. MoI order 1V-369 regarding the EC residence permit, paragraph 19.4 provide that a Union citizen has to submit proof about sufficient resources for themselves and their family members so as not to become a burden on the social assistance system during the period of residence and to also have comprehensive sickness insurance cover in Lithuania. When filling the Application for issuance of the ‘EC residence permit’, a Union citizen has to declare the purpose of his/her arrival in detail. He/she has to answer whether the purpose is to work under an employment contract or to engage in lawful activities in Lithuania. The Application for issuance of the ‘EC residence permit’ is contained in Annex IV to the study. •

The definition of “sufficient resources” (Article 8(4))

The Directive provides that Member States may not lay down a fixed amount which they regard as ‘sufficient resources’, but must take into account the personal situation of the person concerned. In all cases the amount shall not be higher than the threshold below which nationals of the host Member State become eligible for social assistance, or, where this criterion is not applicable, higher than the minimum social security pension paid by the host Member State. The Directive’s requirement to take into account the personal situation of the person concerned is provided in the Minister of Internal Affairs order 1V-369 on EC residence permit. When applying for the ‘EC residence permit, a Union citizen has to prove that he has ‘sufficient resources’, taking into account his personal situation. The requirement to take into account personal situation is not provided directly in the legislation, but it is obvious since each application for EC residence permit is checked individually. The Ministry of Social Security and Labour laid down indicative figures which may be treated as sufficient resources. This is in line with the Directive’s requirement, since the figures are indicative only (the order states: ‘which may be treated as sufficient resources’). Therefore, Lithuania does not contradict to the Directive’s requirement not lay down a fixed amount which it regards as ‘sufficient resources’, but must take into account the personal situation of the person concerned. ‘Sufficient resources as indicated by MoSSL order A1-22 for foreigners is 400 LTL per month. Taking into consideration the Government pension strategy, the indicative amount of 400 LTL per month is nearly the same as the basic social security pension (currently it is - 350 LTL). (see: Social statistics page http://www.socmin.lt/index.php?-1090790746). The minimum monthly salary (MMA) currently is 800 LTL (about 232 EUR). Ministry of Internal Affairs order No 1V-290 of 25 July 2008 on approval of Procedures on issuance of certificate confirming residence rights for a Citizen of a Member State of the European Union, which came into force on 3rd August 2008, revokes the requirement to lay down a fixed amount which may be regarded as ‘sufficient resources’. This legally binding act approves the new application format for issuance of a certificate for Union citizens, confirming their rights to reside in Lithuania. A Union citizen has only to declare that he has sufficient resources. There is no need to declare the means and source of living in a fixed amount as it had been required by the former application format for issuance of residence permit for Union citizens. The Lithuanian legislation is therefore in full compliance with the Directive’s requirement not to lay down a fixed amount which they regard as Milieu Ltd & Europa Institute

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‘sufficient resources’. The MoSSL order A1-22 is not relevant to Union citizens and their family members after 3rd August 2008. •

Evidence for family members who are Union citizens (Article 8(5))

Lithuania transposes Article 8(5) of the Directive in a similar way as Article 8(5) of the Directive is transposed. As it is described above, MoI order No 1V-290 as a secondary legal act referred to in Art. 99, section1 and 3 of LLSoA, came into force on 3rd August 2008, after this analysis had been completed, therefore it is not taken into account for this ToC. Comments to the provisions which will be affected by this secondary legal act are provided in the Conformity Study. Until 3rd August 2008 the document, entitled ‘EC residence permit’, had confirmed residence rights for Union citizens who live in Lithuania for more than three months under Procedures on issuance of the document called ‘EC residence permit’ and are established by MoI order 1V-369 on EC residence permit. Under the Ministry of Internal Affairs order 1V-369 on EC residence permit a document called ‘EC residence permit’ can be issued if a family member of a Union citizen submits: a valid passport or identity card or other document certifying citizenship of European Union Member State, a residence certificate of the Union citizen who accompanies joins him, a document attesting to the marriage or registered partnership agreement, or document attesting that he is the EU citizen’s direct descendant who is under the age of 21 or a dependant, including direct descendants of the spouse or person with whom the registered partnership has been contracted, who is under the age of 21 or those who are dependants, the dependent direct relatives in the ascending line of a citizen of an EU Member State, of the spouse or of the person with whom the person has contracted a registered partnership. When filling the Application for issuance of the ‘EC residence permit’, a family member of a Union citizen has to declare the purpose of their arrival in detail and has to answer whether he/she is a family member of the Union citizen and whether he/she has means and source of living in Lithuania. The Application for issuance of the ‘EC residence permit’ is edited as Annex IV to the study. Articles 8(5)(e) and (f) of the Directive provide that Member States may require the registration certificate to be issued to family members of Union citizens in cases falling under Article 3(2)(a) and Article 3(2)(b). The Lithuanian legislation does not facilitate entry and residence for any other family members, not falling under the definition of ‘family members of an EU Member State citizen’. Therefore, there are no relevant provisions in the Lithuanian legislation. Therefore, this cannot be considered as a more favourable treatment. (c) Family members who are not nationals of a Member State (Article 9-11) Article 9 of the Directive requires issuance of a residence card to family members of a Union citizen who are not nationals of a Member State, where the planned period of residence is for more than three months. This Article has been adequately transposed into Lithuanian legislation by the Law on Legal Status of Aliens and the Ministry of Internal Affairs order No 1V-369. However, conformity issues have been identified regarding the overall transposition of Article 9(1).

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Administrative formalities (Article 9)

Article 9 provides for the issuing of residence cards to the family members of EU citizens who have the nationality of a third state. The Directive requires issuance of a ‘Residence card of a family member of a Union citizen’, while the Lithuanian legislation (Article 99, section 2 of the Law on Legal Status of Aliens) requires issuance of EU residence permit (full title: Residence permit in the Republic of Lithuania of a family member of a citizen of an EU Member State). In addition, the Directive requires issuance of ‘Residence card of a family member of a Union citizen ’where the planned period of residence is for more than three months’, while LLSoA establishes a ‘3-month period in any half year’. •

Deadline for submitting the residence card application (Article 9(2))

The Directive requires that the deadline for submitting the residence card application may not be less than three months from the date of arrival. Article 99, sections 2 and 3 of the Law on Legal Status of aliens provide that the ‘European Union residence permit for family members of a citizen of an European Member State’ is required for a family member of a Union citizen, who himself is not a citizen of an EU Member State if he has entered Lithuania for residence longer than a 3-months period in any half year. This is in line with the Directive. It should be noted that Article 99 of LLSoA was amended on the 1st February 2008 by Law No X1442. However the Law does not foresee the residence cards for family members of a Union citizen who are not nationals of a Member State but requires the issuance of the ‘European Union residence permit’. •

Issue of residence cards (Article 10)

Article 10 is a detailed Article addressing the issue of residence cards to family members of a Union citizen who are not themselves Union citizens. This Article has been adequately transposed into Lithuanian legislation by the Law on Legal Status of Aliens and the Ministry of Internal Affairs order No 1V-369. The Directive requires issuance of a ‘Residence card of a family member of a Union citizen’, while, the Lithuanian legislation (Article 99, section 2 of the Law on Legal Status of Aliens) requires issuance of an EU residence permit (full title: Residence permit in the Republic of Lithuania of a family member of a citizen of an EU Member State). In addition, the Directive requires issuance of a ‘Residence card of a family member of a Union citizen where the planned period of residence is for more than three months’ while, LLSoA establishes ‘3-months period in any half year’. Other provisions of Article 10 of the Directive are transposed correctly, however the following issues should be taken into consideration: firstly, Lithuania applies ‘EC residence permits’ instead of a ‘residence cards” and secondly, the Lithuanian legislation does not provide facilitation for entry and residence for any other family members, not falling under the definition of ‘family members of an EU Member State citizen’. An EU citizen’s family member, who himself is not an EU citizen, has to submit together with his application for the EC residence permit the following documents: 1) a valid passport or identity card or other document certifying citizenship of European Union Member State; 2) documents attesting to the existence of a family relationship or of a registered partnership; 3) a document attesting to the marriage or registered partnership agreement, or document attesting that he is the EU citizen’s direct descendants who are under the age of 21 or are dependants, including direct descendants of the spouse or person with whom the registered partnership has been contracted, who are under the age of 21 or those who are dependants, the dependent direct relatives in the ascending line of a citizen of an EU Milieu Ltd & Europa Institute

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Member State, of the spouse or of the person with whom the person has contracted a registered partnership. •

Validity of residence cards (Article 11)

Article 11 provides for the period of validity of residence cards and provides that certain temporary absences will not render the card invalid. This provision has been adequately transposed into Lithuanian legislation by the Law on Legal Status of Aliens and the Ministry of Internal Affairs order No 1V-369. The Directive’s requirement for the period of validity for residence cards are transposed correctly, taking into consideration that Lithuania issues ‘EC residence permits” instead of residence cards. EC residence permits are valid for 5 years or for the period of intended residence in Lithuania if this period is shorter than 5 years. Lithuania does not foresee a shorter period of validity on the grounds of temporary absences not exceeding six months a year, or by absences of a longer duration for compulsory military service or by one absence of a maximum of 12 consecutive months for important reasons such as pregnancy and childbirth, serious illness, study or vocational training, or a posting in another Member State or a third country. Since the validity of a card for 5 years shall not be affected if the person is absent, the Lithuanian legislation creates more favourable conditions. (d) Retention of the right of residence in the event of death, departure, divorce, annulment or termination •

Retention of the right of residence by family members in the event of death or departure of the Union citizen (Article 12)

Article 12 provides that family members retain the right to reside where the Union citizen dies or leaves the host Member State. The Article deals with a number of different groups of people. Lithuania almost literally transposed the majority of the requirements referred to in Article 12 of the Directive. Article 1011, section 1 of the Law on Legal Status of Aliens provides that family members of a citizen of an EU Member State retain the right to reside in Lithuania if the citizen of an EU Member State dies or departs from the Republic of Lithuania, when the family members hold the citizenship of an EU Member State and comply with the grounds established in paragraph 1 of Article 101 of this Law. Article 101 of the Law establishes the grounds to reside in Lithuania. After a Union citizen’s death or departure his family members, who themselves are Union citizens, have to comply with the grounds established in paragraph 1 of Article 101 of this Law on their own. After a Union citizen’s death or departure his family members, who themselves are not Union citizens, in order for retention of the rights of residence, have to have the following documents: ID card or passport; a document certifying family relationships with who he arrived to Lithuania; documents to prove the rights to reside in Lithuania under Article 101, section 1 of the LLSoA; documents confirming that the citizen of an EU Member State has died or departed from the Republic of Lithuania; documents confirming that he has been residing in the Republic of Lithuania as a family member for at least one year before the EU citizen’s death. These documents must be presented when applying for a permanent resident permit. The rights of residence are retained on a personal basis. Despite the fact that the Lithuanian legislation does not use the wording ’personal basis’, it is obvious from Article 1011, section 2 of the Law on Legal Status of Aliens and paragraph 19 MoI order 1V-369 on the EC residence permit that Union’s citizen family members, who are not Union citizens, retain their right of residence exclusively on a personal basis.

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Article 12(3) of the Directive provides that the Union citizen's departure from the host Member State or his/her death shall not entail loss of the right of residence of his/her children or of the parent who has actual custody of the children. Lithuania contains a similar provision in the LLSoA. The minor differences in the legal status of ‘guardianship’ and ‘custody’ should be noted. ‘Custody’ is an official system based on the Civil Code for protection of rights and interests of children under 14 years and disabled persons, etc. ‘Guardianship’ is also an official system based on the Civil Code for protection of rights and interests of children from 14 to 18 years and partially disabled persons, e.g. drug uses, etc. Both systems have the same legal status: ‘custody’ and ‘guardianship’ can be obtained by agreements approved by the state child protection authorities or by the courts. The Lithuanian word ‘globa’ may be translated as ‘guardianship’ and also as ‘custody’. Therefore, use of the wording ‘guardianship and custodianship’ for transposition of Article 12(3) of the Directive does not cause problems. As regards a programme on formal education, it should be noted that that the education in Lithuania is performed in accordance with the official (formal) programme. All educational institutions teach pupils in accordance with approved (formal) programmes. Education received on the basis of unknown (non-formal) education programmes may cause problems with the recognition of such education.

Retention of the right of residence by family members in the event of divorce, annulment of marriage or termination of registered partnership (Article 13)

Article 13 is similar to Article 12 in that it provides that family members can retain their right of residence whether there is a divorce, annulment or termination of a civil partnership. Article 13 is mainly correctly transposed by the Law on Legal status of Aliens and the Ministry of Internal Affairs order No 1V-369. Article 1011, section 1 of LLSoA provides cases for grounds for retention of the rights of residence and Article 101, section 1 of LLSoA provides grounds for residence in Lithuania. However, some conformity issues have been identified regarding the overall transposition of Article 13 (Articles 13(2)(b). Lithuania provides requirements equivalent to the Directive for the EU citizen’s family members, who themselves are Union citizens. Before acquiring the right of permanent residence, the persons concerned must meet the conditions laid down in Article 101, section 1 of LLSoA. Under Article 1011, section 1 of LLSoA the EU citizen’s family members (who themselves are not Union citizens before acquiring the right of permanent residence in Lithuania) have to present documents confirming that they comply with requirements referred to in Article 13(2) of the Directive (after the annulment of the marriage, divorce and termination of the registered partnership agreement, the marriage or registered partnership lasted not less than 3 years, with one year of that period in the Republic of Lithuania). Under paragraph 19.4 of MoI order 1V-369 such family members must submit: a labour contract or a letter from the company, public institution or organisation confirming his legal work in the Republic of Lithuania or certificate, agreement for establishment of entity in the Republic of Lithuania and other documents certifying that the EU citizen’s family member, (who is not EU citizen), registered the company, public institution or organisation and is its owner, of such entities, or other documents, confirming his legal work in Lithuania, documents confirming that he has adequate means of subsistence for himself and for his family members, if they are accompanying or joining him, sufficient for a stay in the Republic of Lithuania; and a valid document proving that he has health insurance. It should be noted in this context that the above wording is not precise. It is not clear as to whether the provision require for ‘workers’ to prove sufficient means or health insurance. However, it appears that workers are described under the wording ‘a labour contract or a letter from the company, public institution or organisation confirming his legal work in the Republic of Lithuania Milieu Ltd & Europa Institute

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or certificate’ and therefore there is no requirement for them to prove either sufficient means or health insurance. Incomplete transposition occurs when transposing Article 13(2)(b)(d) since the Lithuanian legislation does not include ‘agreement between the spouses’ as a ground for not to losing the rights of residence. In addition, the transposition of Article 13(2)(c) is incorrect transposed, since “particularly difficult circumstances” is transposed as situations which are caused by fault of the spouse who is the Union citizen, whereas the scope of the circumstances cannot be reduced by national legislation. 2.3.3

Retention of the right of residence (Article 14)

Article 14 provides for the circumstances in which persons retain the rights of residence granted by Article 6 and Article 7 respectively. (a) Residence for less than 3 months (Article 14(1)) Lithuania does not provide requirements related to ‘unreasonable burden on the social assistance system’ to Union citizens and their family members for their residence in Lithuania for up 3 months. Article 97, sections 1 and 2 provide that Union citizens and their family members may have the right to be admitted to Lithuania and stay for a period not exceeding three months in any calendar half-year from the first day of entry. Such foreigners seeking employment or intending to engage in any other lawful activity in Lithuania may stay for another three months. Lithuania does not provide requirements related to ‘unreasonable burden on the social assistance system’ to Union citizens and their family members for residence in Lithuania for up 3 months. The Lithuanian legislation does not restrict Union citizens’ and their family members’ rights of residence in Lithuania for up 3 months by their use of Lithuanian social assistance. Therefore Article 14(1) of the Directive has been transposed correctly. (b) Residence for more than 3 months (Article 14(2)) Article 14(2) of the Directive indicates that the right of residence is retained for as long as the conditions laid down in Articles 7, 12 and 13 are met. Generally, Article 14(2) of the Directive is correctly transposed. Article 14(2) second indent of the Directive provides that where there is a reasonable doubt as to whether a Union citizen or his/her family members satisfy the conditions set out in Articles 7, 12 and 13, Member States may verify if these conditions are fulfilled. Lithuania has not transposed this provision. Therefore, there is no clear indication that verifications can only be carried out in specific cases, where there is a reasonable doubt, and that they shall not be carried out systematically. This can be treated as a gap in transposition. Article 101 section 1, and Article 1011 section 1 of the Law on Legal status of Aliens provide Union citizens and their family members’ rights to reside in Lithuania for more than 3 months. Those rights are in line with the Directive. The MoI order 1V-369 on EC residence permit, paragraph 41 provides that the decision taken to issue or renew the European Union residence permit may be revoked if the circumstances, which have formed the grounds for this decision, have been changed. This means that Union citizens and their family members have the residence rights as long as they meet the conditions set in Article 101, section 1 and Article 1011, section 1 of LLSoA. The Law requires that such persons must have adequate means of subsistence for him and for his family members to reside in the Republic of Lithuania. The Ministry of Social Affairs and Labour order A1-22 indicates the level when a citizen of a Member State of the European Union may become a burden on the social assistance system of Lithuania. However, the figures in the order A1-22 are only indicative (paragraph of the order states: ‘which may be treated as sufficient resources’). Milieu Ltd & Europa Institute

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Therefore, Lithuania does not contradict to the Directive’s requirement not lay down a fixed amount which it regards as ‘sufficient resources’, but must take into account the personal situation of the person concerned. ‘Sufficient resources as indicated by MoSSL order A1-22 for foreigners is 400 LTL per month. Taking into account the Government pension strategy this indicative amount is nearly the same as the basic social security pension (currently - 350 LTL). (see: Social statistics page http://www.socmin.lt/index.php?-1090790746). The minimum monthly salary (MMA) currently is 800 LTL (about 232 EUR). (c) Protection against expulsion (Article 14(3)-(4)) •

General protection (Article 14(3))

Article 14(3) provides that an expulsion measure shall not be the automatic consequence of a Union citizen’s or her family member’s recourse to the social assistance system of the host Member State. Although no Lithuanian transposing provision exists in this regard, Article 14(3) of the Directive can be considered as transposed. Not having sufficient resources does not represent a ground for expulsion in the Lithuanian legislation. It is doubtful that such approach an does not offer enough guarantees, but the lack of grounds for expulsion is a guarantee in itself. Any decision for an expulsion must be based on the legal provision clearly provided that persons have lost their right of residence. Lack of such provisions in the Lithuanian legislation presumes that an expulsion measure may in no case be adopted. •

Workers, self-employed persons, and job seekers (Article 14(4))

Article 14(4) of the Directive provides that an expulsion order may not be adopted against Union citizens or their family members if the Union citizens are workers or self-employed persons or if the Union citizens entered the territory of the host Member State in order to seek employment. In this case, the Union citizens and their family members may not be expelled for as long as the Union citizens can provide evidence that they are continuing to seek employment and that they have a genuine chance of being engaged. Article 14(4)(a) on workers/self-employed persons of the Directive is transposed into Lithuanian legislation correctly. Article 101, section 1 and 1011, section 1 of the Law on Legal Status of Aliens, provides that being an employee or self-employed person forms a ground for residence rights. There are no expulsion measures in the Lithuanian legislation against Union citizens or their family members if the Union citizens are workers or self-employed persons. A decision for an expulsion must be grounded on the legal provision clearly provided that persons have lost their right of residence. Lack of such provisions in the Lithuanian legislation presumes that an expulsion measure may in no case be adopted against Union citizens or their family members if the Union citizens are workers or selfemployed persons. Therefore, transposition is in line with the Directive. It should be noted that Lithuania has not completely transposed Article 7(3). Therefore, certain workers and self-employed person will not retain their status of worker and may be considered as not meeting the conditions. The situation is different for jobseekers under Article 14(4)(b). The Law on Legal Status of Aliens provides the grounds for residence rights, but, seeking employment does not form a ground for residence rights of Union citizens and their family members. Even if no expulsion measures can be adopted in Lithuanian legislation against the Union citizens who entered the territory of Lithuania in order to seek employment, jobseekers are not protected from expulsion. Under paragraph 49 of MoI order 369 EU the European Union residence permit may be revoked if the circumstances, for which the permit has been granted, have been changed. Therefore Article 14(4)(b) is transposed incompletely. (d) Article 15: procedural safeguards Milieu Ltd & Europa Institute

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Article 15 of the Directive has been correctly transposed. Article 15(2) provides that the expiry of the identity card or passport on the basis of which the person concerned entered the host Member State and was issued with a registration certificate or residence card shall not constitute a ground for expulsion. Article 15(2) of the Directive is correctly transposed. There are no provisions in the Lithuanian legislation stating that expiry of the identity card or passport on the basis of which the person concerned entered Lithuania constitute a ground for expulsion from Lithuania. Therefore, there are no a grounds for expelling them from Lithuania. The Lithuanian legislation foresees expulsion measures only if the stay of the Union citizens or their family members would pose a threat to state security and public order (Article 106, section 1). 2.4

Right of permanent residence 2.4.1

General rule for Union citizens and their family members (Article 16: Eligibility)

Article 16(1)-(2) provides that Union citizens (and their family members) who have resided legally for a continuous period of five years in the host Member State shall have the right of permanent residence there. This right shall not be subject to the conditions provided for in Chapter III. Article 16(1)-(2) of the Directive has been incorrectly transposed. Article 104, section 1 of the Law on Legal Status of Aliens provides that Union citizens who have been legally resident in Lithuania for the last 5 years or who have retained the right of Lithuanian citizenship according to the procedure established by the Law on Citizenship; is of Lithuanian descent or entered the Republic of Lithuania for residence accompanying the citizen of the Republic of Lithuania as his family member, shall acquire the right to permanently reside in the Republic of Lithuania. The secondary legal act (MoI order 1V-369) provides that absence in Lithuania exceeding six months a year may form a ground for refusing the grant of the right to permanently reside. However, Article 16(1)-(2) of the Directive defines ‘temporary absences not exceed a total of six months a year’ as a ground for continuity of residence. Lithuanian legislation does not transpose the condition ‘of a maximum of 12 consecutive months’, therefore it has established stricter terms than those set in the Directive. Article 104, section 1 and section 2 of the Law on Legal Status of Aliens requires residence for ‘the last 5 years’. It should also be mentioned that the provision of Article 16(1): ‘This right shall not be subject to the conditions provided for in Chapter III’ has not been transposed. •

Continuity of residence (Article 16(3))

Article 16(3) provides for situations in which the continuity of residence will not be affected through temporary absences. Article 16(3) of the Directive has been incorrectly transposed. The Directive provides that ‘Union citizens who have legally resided for a continuous period of five years in the host Member State shall have the right of permanent residence‘. However, the Lithuanian legislation establishes stricter terms than those in the Directive. Article 104, section 1 and section 2 of the Law on Legal Status of Aliens requires residing for ‘the last 5 years’ 2.4.2

Acquisition of the right of permanent residence for workers/self-employed persons and their family members (Article 17)

Article 17(1) provides that the right of permanent residence may be enjoyed under certain conditions before the completion of the five-year period by certain categories of persons like pensioners or workers taking early retirement.

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The provisions of Article 17 of the Directive have been transposed almost literally by the secondary legal act – the Minister of Internal Affairs order No 1V-369 (paragraphs 3, 4, 5, 6, 7, 8, 9). It should be noted that this secondary legal act is not precise and contains some inconsistencies; this is why a new MoI order on procedures for issuance of EC residence permits has been prepared. 2.4.3

Acquisition of the right of permanent residence by family members who are not nationals of a MS and retained their right of residence (Article 18)

Article 18 allows family members of EU citizens who retain a right of residence under Article 12(2) or Article 13(2). This provision has been transposed almost literally by Article 104, section 2 of the Law on Legal Status of Aliens. 2.4.4

Documents certifying permanent residence for Union citizens (Article 19)

Article 19 deals with the permanent residence certificate for Union citizens. The provisions of Article 19 of the Directive have been correctly transposed by the secondary legal act – the Minister of Internal Affairs order 1V-369 (paragraphs 21 and 24). Lithuanian procedures on issuance of certificate on residence rights for EU citizens (MoI order 1V369_EU) requires information certifying the applicant’s identity (passport or ID card), documents certifying family relationships with the EU citizen whom he accompanied to live in Lithuania, and the document certifying that the applicant has paid a fee for issuance of the certificate on residence rights for EU citizens. The application format requires information on the data when the applicant enters into Lithuania. Verification of duration of residence is undertaken after personnel in the migration department check the data submitted and the data from the Register of foreigners. If a person has acquired the right of permanent residence under one of the conditions of Article 17 and 18 of the Directive he has to provide information of meeting those requirements together with application. No special format for application for permanent residence is approved. The Union citizen’s application must be examined and decision on it must be made not later than within one month from the date that the application was received at the migration service office. 2.4.5

Permanent residence card for family members who are not nationals of a MS (Article 20)

Similarly, Article 20 provides for the permanent residence certificate for family members who are not Union citizens. •

Permanent residence card (Article 20(1))

Article 20(1) of the Directive has been transposed correctly by Article 104, section 5 and 8 of the Law on Legal Status of Aliens. ‘Residence permit in the Republic of Lithuania of a family member of a citizen of an EU Member State’ is issued in accordance with the procedures established by MoI order 1V-369. A person has to provide the following documents: application (free format); travel documents; documents certifying residence rights; documents that a person has valid health insurance; a document that he/she has paid 10 LTL (3 EUR). No special format for application for the permanent residence is approved. •

Deadline for application (Article 20(2))

The provisions of Article 20(2) of the Directive have been transposed incompletely. The Lithuanian legislation does not require submission application before the EC Residence permit expires. A family member who is not a national of a Member State, is only given a right to apply for renewal of his EC residence permit when his EC residence permit expires. •

Interruptions in residence (Article 20(3))

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The Directive provides that ‘interruption in residence not exceeding two consecutive years shall not affect the validity of the permanent residence card’. However, Article 104, section 7 of LLSoA states that ‘the acquired right to permanently reside in the Republic of Lithuania shall be lost if the person departs from the Republic of Lithuania for a longer period than 2 consecutive years’. However, Lithuania does not foresee that the validity of a card for 5 years shall not be affected if the person is absent. Therefore the Lithuanian legislation created more favourable conditions. 2.4.6

Continuity of residence (Article 21)

Article 21 provides that continuity of residence may be proven by any form of evidence. In Lithuanian law this follows from the rules of proof in administrative law. Article 57, section 1 of the Law on Administrative Proceedings, defines concept of evidences in the administrative proceedings. Therefore all those means of proof are admitted in an administrative procedure and can be used for attestation of continuity of residence. Therefore the Lithuanian legislation is in line with Article 21 of the Directive. The second sentence of Article 21 of the Directive provides that continuity of residence is broken by any expulsion decision duly enforced against the person concerned. The Lithuanian legislation does not provide that continuity of residence is broken by any expulsion decision duly enforced against the person concerned. 2.5

Common provisions (Articles 22-26) 2.5.1

Territorial scope (Article 22)

Article 22 provides that the territorial scope of the Directive is the whole of the Member State and that restrictions on movement may only be imposed where the same restrictions apply to nationals of the Member State itself. The provisions of Article 22 of the Directive have been correctly transposed. Article 32 of the Constitution of the Republic of Lithuania provides that citizens may move and choose their place of residence in Lithuania freely and may leave Lithuania freely. These rights may not be restricted other than by the law and if it is necessary for the protection of the security of the State, the health of the people as well as for the administration of justice. The right of residence and the right of permanent residence cover the whole territory of Lithuania. Article 22 also states that Member States may impose territorial restrictions on the right of residence and the right of permanent residence only where the same restrictions apply to their own nationals. Lithuania does not impose territorial restrictions on the right of residence and the right of permanent residence other than those provided in the Criminal code which is applicable the same for Lithuanian citizens and foreigners 2.5.2

Right to take up employment by family members (Article 23)

Article 23 provides a right for family members who have the right of residence to take up employment. The provisions of Article 23 of the Directive have been correctly transposed by Article 103 of the Law on Legal Status of Aliens. There are no restrictions on the employment or selfemployment of Union citizens and their family members in Lithuania. Moreover, Article 103 of the Law on Legal Status of Aliens, in order to encourage their employment or self-employment, does not require the obtaining of a work permit. 2.5.3

Equal treatment (Article 24)

Article 24 of the Directive provides that all Union citizens residing on the basis of this Directive in the territory of the host Member State shall enjoy equal treatment with the nationals of that Member State within the scope of the Treaty. Milieu Ltd & Europa Institute

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There is no specific transposition of Article 24(1) in the Lithuanian legislation. Equal treatment could be obtained through the application of Article 12 of the EC Treaty, which under Article 138 of the Constitution of the Republic of Lithuania is applicable in as consistent part of the Lithuanian legal system. Therefore, the courts can refer to the EC Treaty and it must be respected by legislative and executive authorities. Article 29 of the Constitution of the Republic of Lithuania provides that all persons shall be equal before the law, the court, and other State institutions and officials. The rights of the human being may not be restricted, nor may he be granted any privileges on the ground of gender, race, nationality, language, origin, social status, belief, convictions, or views. The Civil code provides that foreign citizens in the Republic of Lithuania possess the same civil capacity as the citizens of the Republic of Lithuania. Exceptions to this rule may be established by the laws of the Republic of Lithuania. The Labour code provides that foreign nationals and stateless persons, who are permanently residing in the Republic of Lithuania, shall have the same legal capacity in labour relations in the Republic of Lithuania as its citizens. The Code of Administrative Offences establishes equal sanctions for residents of Lithuania in cases of infringement of procedures established under the Law on Legal Status of Aliens. Under the Law on Cash Social Assistance for Low-income Families and Single Residents, permanent residents of Lithuania who meet equal conditions have the right to stateprovided cash social assistance if they used their entitlement to receive sufficient income. The Law defines ‘persons permanently residing in the Republic of Lithuania’ as citizens of Lithuania or aliens who permanently reside in Lithuania whose data regarding place of residence in the Republic of Lithuania (or data on the municipality in which they live if they have no place of residence), have been entered into the Register of Residents of the Republic of Lithuania. Therefore implementation of the principle of equal treatment is fully ensured. Lithuanian legislation does not confer the entitlement to social assistance during the first three months of foreigners’ residence in Lithuania. Social services, e.g. social attendance or social care are provided on a personal basis using equal treatment to Lithuanians or foreigners. Under the Law on Cash Social Assistance for Low-income Families and Single Residents, only permanent residents of Lithuania who meet equal conditions, have the right to state-provided cash social assistance if they used their possibilities to receive sufficient incomes. The Law defines ‘persons permanently residing in the Republic of Lithuania’ as citizens of Lithuania or aliens who permanently reside in Lithuania whose data on the place of residence in the Republic of Lithuania or data on the municipality in which they live if they have no place of residence, have been entered into the Register of Residents of the Republic of Lithuania. 2.5.4

General provisions concerning residence documents (Article 25)

Article 25(1) of the Directive does not allow that a registration certificate, a document certifying permanent residence, a certificate attesting submission of an application for a family member residence card, a residence card or a permanent residence card, be made a precondition for the exercise of a right or the completion of an administrative formality. The rights may be attested by any other means of proof. However, the Lithuanian legislation (Article 2, section 4(1) of LLSoA) defines ‘Residence permit in the Republic of Lithuania of a family member of a citizen of an EU Member State as a document ‘granting a member of the family of the citizen of an EU Member State, who is not a citizen of an EU Member State, the right to live in the Republic of Lithuania’. Under the Lithuanian legislation documents should be requested before a person can exercise a right. Article 25(2) of the Directive requires that all documents mentioned in paragraph 1 shall be issued free of charge or for a charge not exceeding that imposed on nationals for the issuing of similar documents. Law on Fees and other legal acts establish charges which do not exceed those imposed on Lithuanian citizens for issuing of similar documents. The charges are defined by the Government resolution. Currently those charges are 10 LTL (3 EUR) for issuance or residence permit. 2.5.5 Milieu Ltd & Europa Institute

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Article 26 provides that Member States may have checks to ensure that beneficiaries of the Directive carry their residence cards in the same way as nationals carry their identity card. As there is no obligation on Lithuanian nationals to carry any form of identification with them, this provision has not been transposed.

2.6

Restrictions on the right of entry and residence on grounds of public policy, public security and public health 2.6.1

General principles (Article 27)

Article 27(1) provides that Member States may restrict the freedom of movement and residence of Union citizens and their family members on grounds of public policy, public security or public health. These restrictions have been transposed adequately into Lithuanian legislation by the Law on Legal Status of Aliens. Article 98, section 2 of LLSoA provides that a national of an EU Member State shall be refused entry to the Republic of Lithuania if his/her stay in the Republic of Lithuania would constitute a threat to state security, public policy or public health. However, the Lithuanian legislation does not include the Directive’s provision that the grounds for restriction of the freedom of movement and residence of Union citizens and their family members ‘shall not be invoked to serve economic ends’. It should be noted in this context that no definitions of public policy and public security exist in the Lithuanian legislation. The only court proceeding grounded on public policy and public security is against a Russian citizen started 3 years ago in the Administrative court but it is not yet finished. The provisions referred to in Article 27(2) of the Directive are not transposed. Although the rights of entry and the rights of residence can be restricted only in accordance with the Law on Administrative proceedings, which provides general legal principles of proportionality and requires the judges in administrative cases to actively participate in the examination of evidence, establishing all the material circumstances for the case and making a comprehensive and objective review of the said circumstances, non transposition of Article 27(2) of the Directive may be interpreted as not granting the same guarantees provided by the Directive regarding personal conduct and the non consideration of previous convictions. Article 27(3) of the Directive has been correctly transposed by the Law on Legal status of Aliens. Article 133, section 3 of the Law on Legal Status of Aliens provides that the list of aliens for whom entry into Lithuania is refused shall be drawn up, administered and the information from this list shall be submitted to the Schengen central information system by the Migration Department. Exchange of information based on the Schengen central information system ensures compliance with the Directive’s requirement to provide information concerning any previous police record the person concerned may have and that such enquiries are not made as a matter of routine. From MoI order 1V-369 on EC residence permit, paragraph 29, as amended by Order 1V-264 of 200807-10, it is clear that in order to control entrance of persons to whom entry to Lithuania is prohibited, the Migration department uses data from the Foreigners register, from the database of the Secretariat General of Interpol and the database of the Schengen information system. MoI order 1V-369_EU also requires checking information from the State Security services and the Police. The fact that a person is included in the SIS does not lead to an automatic refusal of entry. Provisions of Article 27(4) of the Directive are not transposed. 2.6.2

Protection against expulsion (Article 28)

Article 28 provides for a number of considerations to be taken into account before taking expulsion decisions. This Article has not been transposed adequately into Lithuanian legislation. Milieu Ltd & Europa Institute

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General considerations before expulsion (Article 28(1))

Article 128, sections 1 and 2 of the Law on Legal Status of Aliens establishes general considerations which must be made before taking an expulsion measure, as in line with Article 28(1) of the Directive. The Law provides that when taking a decision to expel an alien from the Republic of Lithuania, account must be taken of: the period of his lawful stay in Lithuania; the person’s family relationship with other persons resident in Lithuania; the person’s social, economic and other connections in the Republic of Lithuania; the type and extent of the dangerousness of the committed violation of law. The Lithuanian wording ‘when taking a decision’ means that ‘before taking a decision’ or at least during assessment to apply or not to apply an expulsion. In any case the wording ‘when taking a decision’ does not mean that the decision has been already taken. •

Protection of permanent residents (Article 28(2))

The Directive provides that an expulsion decision against Union citizens and their family members, who have the rights of permanent residence may not be taken, except on serious grounds of public policy or public security. Article 106, section 1 in conjunction with Article 106, section 4 of LLSoA does not include ‘serious grounds of public policy or public security’. Therefore, the Lithuanian legislation allows the expulsions on less serious grounds. •

Special protection for minors and people already residing for 10 years (Article 28(3))

The Lithuanian legislation does not foresee that an expulsion decision against a Union citizen, who has resided in the host Member State for the previous 10 years, may not be taken, except on imperative grounds of public security, as defined by Member State. Lithuania also does not provide for an expulsion decision against a Union citizen who is a minor, except if the expulsion is necessary for the best interests of the child, as provided for in the United Nations Convention on the Rights of the Child of 20 November 1989. An expulsion decision may not be taken, except on imperative grounds of public security, as defined by the Member State. Therefore, the Lithuanian legislation allows the expulsions on less serious grounds. 2.6.3

Public health (Article 29)

Article 29 provides for a definition of public health, listing the sorts of diseases that may justify invocation of the public health ground. The Directive provides specific categories of diseases, which can only justify measures restricting freedom of movement. Article 112 of the Law on Legal Status of Aliens includes general provisions that ‘freedom of movement may be restricted in the Republic of Lithuania only in the interests of state security or public order, or public health or morals, for crime prevention purposes or seeking to protect the rights and freedoms of other persons’. No other specific details are foreseen. Therefore, transposition of Article 29 is incomplete. 2.6.4

Expulsion as a penalty or legal consequence (Article 33)

Article 33 of the Directive has been correctly transposed. Article 126, section 1 of the Law on Legal Status of aliens provides a final list of legal grounds for expulsion of foreigners. The grounds referred to in this Article do not constitute the legal bases for penalties. Neither the Code of Administrative Offences (see: Article 206) nor the Criminal code (see: Articles 291-292) foresee expulsion orders as a penalty or legal consequence of a custodial penalty. 2.7

Procedural safeguards against decisions restricting free movement (Article 15, and Articles 30-31) 2.7.1

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Article 30(1) of the Directive requires that the persons concerned shall be notified in writing of any decision taken under Article 27(1), in such a way that they are able to comprehend its content and the implications for them. This provision has been correctly transposed by MoI order 1V-429. Paragraph 27.3 of this secondary legal act requires that the person concerned is notified in writing as regards the decision taken and in a language that he/she understands. This does not necessarily imply that the person will comprehend the content and implications of the decisions but the provision has been considered as transposed. Note that the guarantees of Article 30 are not entirely applicable to the decisions covered by Article 15.1, which renders transposition of Article 15.1 incomplete. Article 30(2) of the Directive requires that the persons concerned shall be informed, precisely and in full, of the public policy, public security or public health grounds on which the decision taken in their case is based. Lithuania has transposed correctly these requirements by the Law on Administrative Proceedings and the Minister or Internal Affairs order No 429. Article 12 of the Law on Administrative Proceedings provides that the material of the heard administrative case, except for the material of the cases heard in a closed session of the court, shall be public and available for examination to the interested persons, including those persons who were not party to the proceedings. The persons shall acquire the said right after the decision disposing of the case or the order to dismiss the case or to leave the petition unconsidered becomes effective. In addition paragraph 45 of MoI order 429 provides that upon receiving the decision of the Migration department or Vilnius District Administrative Court on expulsion of a foreigner, the institutions responsible for execution of the decision shall immediately: notify the foreigner about the decision on the expulsion in a language which the foreigner understands. The decision must be signed by the foreigner. A verified copy of the decision on his/her expulsion must also be presented to the person concerned. Article 30(3) of the Directive requires the notification shall specify the court or administrative authority with which the person concerned may lodge an appeal, and the time limit for the appeal. Lithuania has transposed correctly these requirements by the Law on Administrative Proceedings and the Law on Legal Status of Aliens. Chapter X of the Law on Legal Status of aliens contains Articles 136-1401 which established common proceedings for applications against the decisions taken. The procedures provided for appealing against any decision taken against Union citizens and their family members on grounds of public policy, public security or public health and procedures for appealing against any other decision taken against Union citizens and their family members are established by the Law on Administrative Proceedings. This law does not make procedural differences related to appealing and safeguards. The only difference is that only Vilnius administrative court hears Union citizens’ and their family members’ complaints related to public policy, public security or public health. The Vilnius administrative court and the other administrative courts follow the Law on Administrative Proceedings. An appeal against decisions taken in accordance with LLSoA may be filed with the appropriate administrative court in a way and under the conditions established by the Law on Administrative Proceedings. The time limits and procedure for appeal against the decision is clearly provided in the court decision. Article 127, section 4 of LLSoA provides that the decision on expulsion, grounded on the public policy, public security or public health grounds must be taken only by Vilnius District Administrative Court in accordance with the procedures set up in the Law on Administrative Proceedings. The person concerned is informed precisely (he/she receives the whole text of the decision). The decision contains provision on the rights and terms for appealing against the decision. The time allowed to leave the territory is not less than one month from the date of notification. 2.7.2

Procedural safeguards under Article 31

Article 31(1) of the Directive provides that the persons concerned must have access to judicial and, where appropriate, administrative redress procedures in the host Member State to appeal against or Milieu Ltd & Europa Institute

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seek review of any decision taken against them on the grounds of public policy, public security or public health. Lithuania has transposed correctly these requirements by the Law on Administrative Proceedings and the Law on Legal Status of Aliens. Chapter X of the Law on Legal Status of aliens contains Articles 136-1401 which established common proceedings for applications against the decisions taken. The procedures provided for appealing against any decision taken against Union citizens and their family members on grounds of public policy, public security or public health and procedures for appealing against any other decision taken against Union citizens and their family members are established by the Law on Administrative Proceedings. This law does not make procedural differences related to appealing and safeguards. The only difference is that only the Vilnius administrative court hears Union citizens’ and their family members’ complaints related to public policy, public security or public health. The Vilnius administrative court and the other administrative courts follow the Law on Administrative Proceedings. An appeal against decisions taken in accordance with LLSoA may be filed with the appropriate administrative court in the way and under the conditions established by the Law on Administrative Proceedings. Article 31(2) of the Directive provides that where the application for appeal against or judicial review of the expulsion decision is accompanied by an application for an interim order to suspend enforcement of that decision, actual removal from the territory may not take place until such time as the decision on the interim order has been taken. Article 139, sections 1 and 2 of LLSoA provide more favorable terms for the suspension of the enforcement of the expulsion decision than those in the Directive. The Lithuanian laws require suspension only if ‘appeal against or judicial review of the expulsion decision is accompanied by an application for an interim order to suspend enforcement of that decision’. The redress procedures shall allow for an examination of the legality of the decision, as well as of the facts and circumstances on which the proposed measure is based. They shall ensure that the decision is not disproportionate. Lithuanian administrative legislation fully ensures procedural safeguards including the appeal process. Lithuanian administrative legislation ensures an examination of the legality of the decision appealed. Article 136 of the Law on administrative Proceedings obligate the courts while hearing the case on appeal to review the legality and validity of both the contested and uncontested parts of the decision. An analysis of proportionality is part of the examination of the legality of the act. The courts must review the case in full including an examination of the facts. Article 31(4) of the Directive provides that Member States may exclude the individual concerned from their territory, pending the redress procedure, but they may not prevent the individual from submitting his/her defense in person, except when his/ her appearance may cause serious troubles to public policy or public security or when the appeal or judicial review concerns a denial of entry to the territory. Lithuanian administrative legislation fully ensures the appellant’s participation in the appeal process. Foreigners’ defense in person when a decision is appealed is ensured by the Law on Administrative proceedings and by LLSoA. 2.7.3

Exclusion orders (Article 32)

Article 32(1) of the Directive provides that persons excluded on grounds of public policy or public security may submit an application for the lifting of the exclusion order after a reasonable period. This Article of the Directive has been transposed incompletely. Lithuanian legislation includes material circumstances of the case as a ground for lifting of the exclusion decision in accordance with renewal administrative proceedings. Providing the rights for the persons concerned to submit a petition for the renewal of the proceedings, the Lithuanian legislation forms grounds for applying to the court for renewal of the proceedings. However, specific provisions referred to in Article 32(1) of the Directive are not transposed. Therefore, this should be treated as incomplete transposition. Article 32(2) of the Directive provides that the persons excluded on grounds of public policy or public security must have no right of entry to the territory of the Member State concerned while their Milieu Ltd & Europa Institute

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application is being considered. Lithuania has requirement.Therefore it is more favorable transposition. 2.8

not

transposed

the

Directive’s

this

Final provisions (Chapter VII) 2.8.1

Publicity (Article 34)

Article 34 of the Directive has been correctly transposed. The website http://www.migracija.lt/ provides information concerning the rights and obligations of Union citizens and their family members in Lithuania. 2.8.2

Abuse of rights (Article 35)

Article 35 of the Directive has been correctly transposed. The Directive allows MS to adopt the necessary measures to refuse, terminate or withdraw any right conferred by this Directive in the case of abuse of rights or fraud. Article 35 section 1, paragraph 2 of the Law on Legal Status of Aliens, following the option allowed by the Directive, refuses the issue or renewal of a residence permit if the data which he submitted in order to receive a residence permit is not realistic or illegally obtained; if false documents have been submitted; or if there is serious ground to believe that a marriage of convenience or an adoption of convenience has been concluded. No measures to refuse, terminate or withdraw any right conferred by this Directive which contradict or are not in line with the requirement of the Directive are established in Lithuania. No case law exists. Some proceedings have already started. 2.8.3

Sanctions (Article 36)

Article 36 of the Directive has been correctly transposed. Article 143 of the Law on Legal Status of Aliens provides that the other laws shall lay down provisions on the sanctions applicable to breaches of LLSoA. The Code on Administrative Offences provides sanctions for infringement of orders on entry to the Republic of Lithuania, residence in it, transit through it and leaving it by foreigners. The sanctions are: warning or a fine from 150 to 1000 LTL (45-290 EURO). The Criminal code (Article 291) provides sanctions for anyone, including foreigners, who illegally cross the state border. The sanctions laid down in Lithuanian legislation are proportionate, since they start from very low level and increase for up two years of imprisonment. Therefore, the courts have good chance to apply the principle of proportionality in individual cases. 2.8.4

More favourable provisions (Article 37)

Article 37 of the Directive has not been transposed, since the Directive’s provision does not require the transposition. No provisions under Lithuanian law that could be considered as more favourable have been identified. 2.8.5

Transposition (Article 40)

The references to the Directive are incorporated in the Law on Legal Status of Aliens. However, delay with transposition occurs, since the last amendment to the Law on Legal Status of aliens was adopted on 1st February 2008.

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3 Recent developments The Ministry of Internal Affairs order No 1V-290 of 25 July 2008 on approval of Procedures on issuance of certificate confirming residence rights for a Citizen of a Member State of the European Union and Procedures on issuance, extension and revocation of residence permits for European Union citizen‘s family members who are not nationals of a Member State of the EU Amendment to the Law on Legal Status of Aliens of 1st February 2008 requires that the ‘certificate on confirmation of Union citizen’s residence rights’ has to be adopted by the Minister of Internal Affairs. Following this obligation the Minister of Internal Affairs on the 25 July 2008 adopted order No 1V290 on the approval of Procedures on issuance of certificate confirming residence rights for a Citizen of a Member State of the European Union and Procedures on issuance, extension and revocation of residence permits for European Union citizen‘s family members who are not nationals of a Member State of EU (thereinafter – MoI order No 1V-290). This secondary legal act came into force on 3rd August 2008 and after the analysis for this study had been completed. (See: http://www3.lrs.lt/pls/inter3/dokpaieska.showdoc_l?p_id=325573&p_query=&p_tr2=). Most of the provisions included in the MoI order 1V-290 do not specifically affect EU citizens or their family members since they repeated the provisions provided in the existing secondary legislation establishing procedures on issuance of certificate confirming residence rights for a Citizen of a Member State of the European Union and issuance, extension and revocation of residence permits for European Union citizen‘s family members who are not nationals of a Member State of EU. However there are some provisions that may have impact on them. Comments below relate to the provisions which will be affected by this secondary legal act. Provisions related to transposition of Article 7(1)(b)(c) and Article 7(2) The Directive’s requirement to assure the relevant national authority, by means of a declaration or by such equivalent means as they may choose, that they have ‘sufficient resources for themselves and their family members’ has been transposed through the Application format for the EC residence permit approved by the minister of Internal Affairs. EU citizens and their family members, when applying for a EC residence permit, had to fill in the Application form in which they inter alia had to declare, in litas, their ‘means and source of living in Lithuania. The MoI order No 1V-290 provides two new application formats: • Application for Issuance of Certificate Confirming Union Citizen’s Rights to Live in the Republic of Lithuania; • Application for Issuance of a Permit to Reside in the Republic of Lithuania for Union Citizen’s Family Members. The newly approved Application for Issuance of Certificate Confirming Union Citizen’s Rights to Live in the Republic of Lithuania does not require the declaration, monthly and in litas, of their means and sources of and sources of living in Lithuania. It is sufficient if the person concerned declares that he has ‘sufficient resources to live in Lithuania’. Provisions related to transposition of Article 8(2) Under Article 8(2) of the Directive the time limit for registration cannot be less than 3 months and the registration certificate should be issued immediately, stating name, address and date of registration. Until 3rd August 2008, under paragraph 28 of MoI order 1V-369 on EC residence permit, the document called ‘EC residence permit’ had to be issued not later than 1 month from the date of receiving the application. This was not in line with the Directive’s requirement that says that a registration certificate must be issued immediately. Milieu Ltd & Europa Institute

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The MoI order No 1V-290 provides that a request for issuance of a certificate confirming Union citizen’s rights to live in Lithuania shall be issued not later that 5 days from receiving the application (Paragraph 26 of the MoI order No 1V-290). Provisions related to transposition of Article 8(3) Until 3rd August 2008, under paragraph 28 of the MoI order 1V-369, when filling the Application for issuance of the ‘EC residence permit’, a Union citizen had to declare purpose of arrival in detail. The new Application format, approved by the MoI order No 1V-290, does not include such a requirement. It should be also mentioned that the new MoI order No 1V-290 provides precisely what documents have to be submitted in order to obtain a certificate confirming Union citizen’s rights to live in Lithuania (paragraphs 13.1; 13.2; 13.3 and 13.4). It had not been clear enough from paragraph 19.1 of the MoI order 1V-369, whether a ‘worker’ when applying for a document called ‘EC residence permit’, had to prove both: an employment or proof that he is a self-employed person and also ‘sufficient means’ and sickness insurance. It is obvious from the new MoI order No 1V-290 that there is no requirement for a ‘worker’ to prove ‘sufficient means’. Provisions related to transposition of Article 8(4) Article 8(4) of the Directive provides that Member States may not lay down a fixed amount which they regard as ‘sufficient resources’. Until 3rd August 2008, due to a complexity of MoI order 1V-369, it had not been clear enough whether the above requirement of the Directive is correctly transposed, since the Application format for a document entitled ‘EU residence permit’ had required the filling in of a box called ‘Means and source of living in Lithuania (monthly in litas)’. The newly approved Application for Issuance of Certificate Confirming Union Citizen’s Rights to Live in the Republic of Lithuania does not require declaration ‘monthly in litas’ of means and source of living in Lithuania. It is enough if the person concern declares that he has ‘sufficient resources to live in Lithuania’.

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BIBLIOGRAPHY • Constitution of the Republic of Lithuania (Lietuvos Respublikos konstitucija), Vilnius, 1992. • Civil Procedure Code of the Republic of Lithuania (Lietuvos Respublikos civilinio proceso kodeksas), Official Gazette, 2002, No 36-1340. • Law on Administrative Proceedings of the Republic of Lithuania (Lietuvos Respublikos administracinių bylų teisenos įstatymas), Official Gazette, 1999, No 13-308; 2000, No 85-2566. • Law on Public Administration of the Republic of Lithuania (Lietuvos Respublikos viešojo administravimo įstatymas), Official Gazette, 1999, No 60-1945. • Bulletin of the Administrative Court Practice No. 8, p. 191. • Daniel A. Bilak, Administrative Justice in Lithuania (Administracinė justicija Lietuvoje), 1993Sąjungos piliečių ir jų šeimos narių teisė laisvai judėti ir gyventi Sąjungos teritorijoje, Vadovas – kaip pasinaudoti visomis Direktyvos 2004/39/EB teikiamomis galimybėmis, Vilnius, 2007. • Seimas website: www.lrs.lt • Eurolex

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ANNEX I:

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Table of concordance for Directive 2004/38/EC

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ANNEX II:

List of relevant national legislation and administrative acts

List of Legislation Consolidated versions of the legislation can be found at http://www3.lrs.lt/ 1.

2. 3. 4. 5.

6.

7.

8. 9.

10. 11.

12. 13.

Lietuvos Respublikos įstatymas dėl užsieniečių teisinės padėties (Republic of Lithuania Law on the Legal Status of Aliens) No IX-2206 of 29 April 2004, as amended by No IX-924 of 28 November 2006, Valstybės žinios, 2004, No 73-2539; 2006, No 137-5199; 2008, No 22-803 (thereinafter – LLSoA), http://www3.lrs.lt/pls/inter3/dokpaieska.showdoc_l?p_id=315087; Lietuvos Respublikos asmens tapatybės kortelės įstatymas (Republic of Lithuania Law on Identity Cards) No IX-577 of 6 November 2001, Valstybės žinios, 2001, No 97-3417 (thereinafter – Identity cards law), http://www3.lrs.lt/pls/inter3/dokpaieska.showdoc_l?p_id=154166&p_query=&p_tr2= Lietuvos Respublikos paso įstatymas (Republic of Lithuania Passport Law) No IX-590 of 8 November 2001, as amended by No X-705 of 20 June 2006, Valstybės žinios, 2001, No 99-3524; 2006, No 772957 (thereinafter – Passport law), http://www3.lrs.lt/pls/inter3/dokpaieska.showdoc_l?p_id=280169 Paso formos aprašymas (Description of Passport Format), approved by the Minister of Internal Affairs of the Republic of Lithuania order No 1V-498 of 28 December 2006 (thereinafter – MoI order 1V-498) http://www3.lrs.lt/pls/inter1/dokpaieska.showdoc_l?p_id=25755 Kelionės dokumentų, kurie suteikia teisę užsieniečiui atvykti į Lietuvos Respubliką, pripažinimo tvarkos aprašas (Procedures for Recognition of Travel Documents Giving the Rights for Entry to Lithuanian Republic), approved by Order No V-101/1V-397 of the Minister of the Internal Affairs of the Republic of Lithuania and the Minister of Foreign Affairs of the Republic of Lithuania of 21 November 2007, Valstybės žinios, 2007, No 125-5123 (thereinafter – Order No 397) http://www3.lrs.lt/pls/inter3/dokpaieska.showdoc_l?p_id=310144&p_query=&p_tr2= Asmenų, vykstančių per valstybės sieną, kelionės dokumentų žymėjimo instrukciją (Manual on Stamping of Travel Documents for Persons Crossing the Border), approved by the State Border Protection Service upon the Minister of the Internal Affairs together with the Minister of Foreign Affairs Order No 4-705 of 6 October 2006, as amended by No 4-841 of 16 November 2006, Valstybės žinios, 2006, No 109-4152; No 124-4747 (thereinafter – Order 4-705) http://www3.lrs.lt/pls/inter3/dokpaieska.showdoc_l?p_id=284416&p_query=&p_tr2= Dokumentų vizai gauti pateikimo, vizos išdavimo, taip pat ir vizos išdavimo pasienio kontrolės punktuose, buvimo Lietuvos Respublikoje turint vizą laiko pratęsimo, vizos panaikinimo taisyklės (Rules on submission of documents for issue of a visa, visa issue, also on visa issue at border control posts, the extension of a period of stay in the Republic of Lithuania being in possession of a visa and on cancellation of a visa), approved by Order No 1V-280/V-109 of the Minister of the Internal Affairs of the Republic of Lithuania and the Minister of Foreign Affairs of the Republic of Lithuania of 2 September 2004, Valstybės žinios, 2004, No 113-4961; 2006, No. 18-634, No 75-2896; 2007, No 2-85, No 31-1144, No 121-4969 (thereinafter – Order No 109) http://www3.lrs.lt/pls/inter3/dokpaieska.showdoc_l?p_id=290248&p_query=&p_tr2= Lietuvos Respublikos konsulinio mokesčio įstatymas (Republic of Lithuania Law on Consular Fees), as amended by No X-1300 of 2007-10-18, Valstybės žinios, 2007, No. 114-4631 (thereinafter – LCF) http://www3.lrs.lt/pls/inter3/dokpaieska.showdoc_l?p_id=307780&p_query=&p_tr2= Lietuvos Respublikos konsulinio mokesčio tarifai (Consular fees tariffs of the Reublic of Lithuania), approved by the Government Resolution No 1135 of 16 November 1994, as amended by No 1347 of 27 October 2004, Valstybės žinios, 2004, No 158-5789 (thereinafter – Resolution 1347) http://www3.lrs.lt/pls/inter3/dokpaieska.showdoc_l?p_id=244116&p_query=&p_tr2=; Lietuvos Respublikos gyvenamosios vietos deklaravimo įstatymas (The Republic of Lithuania Law on Declaration of Residence Place) No VIII-840 of 2 July 1998, as amended by No X-961 of 2006-12-07, (Valstybės žinios, No 141-5395) http://www3.lrs.lt/pls/inter3/dokpaieska.showdoc_l?p_id=289812 Gyvenamosios vietos deklaravimo ir deklaravimo duomenų tvarkymo taisyklės(Rules on Declaration of Residence Place Data Management), approved by the director of Citizen Register Service under the Ministry of Internal Affairs order No (29)4R-18 of 8 April 2008 (Valstybės žinios, 2008, http://www3.lrs.lt/pls/inter3/dokpaieska.showdoc_l?p_id=318143&p_query=&p_tr2= Užsieniečių registro nuostatai (Statutes on the Register of Foreigners), approved by the Government of the Republic of Lithuania resolution No 1342 of 14 December 2005, Valstybės žinios, 2005, No 1475353 http://www3.lrs.lt/pls/inter3/dokpaieska.showdoc_l?p_id=267719&p_query=&p_tr2 Pažymos Europos Sąjungos valstybės narės piliečiui jo teisei gyventi Lietuvos Respublikoje patvirtinti formą (Format for the Certificate Confirming a Union citizen’s Residence Rights in Lithuania,


14.

15.

16. 17.

18. 19. 20.

21.

22. 23.

24.

25.

Valstybės žinios, 2008, Nr. 52-1934 http://www3.lrs.lt/pls/inter3/dokpaieska.showdoc_l?p_id=319461&p_query=&p_tr2= Pažymos Europos Sąjungos valstybės narės piliečio teisei nuolat gyventi Lietuvos Respublikoje patvirtinti išdavimo tvarkos aprašas (Procedures on issuance of permanent residence certificates for citizens of Member States of the European Union), approved by the Minister of the Internal Affairs of the Republic of Lithuania order No 1V-369 of 25 October 2007, Valstybės žinios, 2007, No 113-4607 (thereinafter – MoI order 1V-369_EU) http://www3.lrs.lt/pls/inter3/dokpaieska.showdoc_l?p_id=307851&p_query=&p_tr2= Europos Sąjungos valstybės narės piliečio šeimos nario leidimo gyventi Lietuvos Respublikoje išdavimo, pratęsimo ir panaikinimo Europos Sąjungos valstybės narės piliečio šeimos nariams, kurie nėra Europos Sąjungos valstybės narės piliečiai, tvarkos aprašą (Procedures on issuance, extention and revocation of residence permits for European Union citizen‘s family members who are not nationals of a Member State of EU), approved by the Minister of the Internal Affairs of the Republic of Lithuania order No 1V-369 of 25 October 2007, Valstybės žinios, 2007, No 113-4607 (thereinafter – MoI order 1V-369_ on EC residence permit) EU) http://www3.lrs.lt/pls/inter3/dokpaieska.showdoc_l?p_id=307851&p_query=&p_tr2= Lietuvos Respublikos socialinių paslaugų įstatymas (Republic of Lithuania Law on Social Services) No X-493 of 19 January 2006, Valstybės žinios, 2006, No 17-589 (thereinafter – Law of Social Services) http://www3.lrs.lt/pls/inter3/dokpaieska.showdoc_l?p_id=270342&p_query=&p_tr2= Sprendimų dėl užsieniečio įpareigojimo išvykti, išsiuntimo, grąžinimo ir vykimo tranzitu per Lietuvos Respublikos teritoriją priėmimo ir jų vykdymo taisyklės (Rules on making and implementation of decisions on expulsion, expulsion, reentering and tranziton of foreigners through the border of the republic of Lithuania), adopted by the Minister of Internal Affairs order No 1v-429 of 24 December 2004, Valstybės žinios, 2005, No 4-70 (thereinafter – MoI order 1V-429) Lietuvos Respublikos darbo kodeksas (Republic of Lithuania Labour Code), No IX-926 of 4 July 2002, as amended by No X-458 of 20 December 2005, Valstybės žinios, 2002, 64-2569; 2005, No 67-2400 (thereinafter – Labour Code) http://www3.lrs.lt/pls/inter3/dokpaieska.showdoc_l?p_id=169334 Lietuvos Respublikos civilinis kodeksas (Civil Code of the Republic of Lithuania), No VIII-1864 of 18 July 2000, Valstybės žinios, 2000, 74-2262 (thereinafter – Civil Code) http://www3.lrs.lt/pls/inter3/dokpaieska.showdoc_l?p_id=107687 Lietuvos Respublikos socialinės apsaugos ir darbo ministro 2007 m. sausio 29 d. įsakymas Nr. A1-22 ,,Dėl pragyvenimo Lietuvos Respublikoje lėšų dydžio, kuris gali būti laikomas pakankamu pragyventi Lietuvos Respublikoje užsieniečiui, prašančiam išduoti leidimą gyventi, nustatymo (A1-22 of 29 January 2007 on settlement of livelihood size which may be treated as sufficient resources for aliens requesting of residence permit in the Republic of Lithuania), Valstybės žinios, 2007, No 15-570 (thereinafter – MoSSL order A1-22) http://www3.lrs.lt/pls/inter3/dokpaieska.showdoc_l?p_id=291849&p_query=&p_tr2= Lietuvos Respublikos nedarbo socialinės apsaugos įstatymas (The Republic of Lithuania Law on Unenploment social Insurance) No IX-1904 of 16 December 2003, as last amended by No X-1399 of 2007-12-20, (Valstybės žinios, 2007, No 138-5654) http://www3.lrs.lt/pls/inter3/dokpaieska.showdoc_l?p_id=312380 Užsieniečių registro nuostatai (Statutes on the Register of Foreigners), approved by the Government of the Republic of Lithuania resolution No 1342 of 14 December 2005, Valstybės žinios, 2005, No 1475353 http://www3.lrs.lt/pls/inter3/dokpaieska.showdoc_l?p_id=267719&p_query=&p_tr2= Užsieniečių, kuriems draudžiama atvykti į Lietuvos Respubliką, sąrašo sudarymo ir tvarkymo taisyklės (Rules on drawing up and administration of the list of foreigners to whom exit to the Republic of Lithuania are refused), approved by the Government of the Republic of Lithuania resolution No 436 of 20 April 2005, Valstybės žinios, 2005, No 52-1747 (thereinafter – Governmental resolution 436) http://www3.lrs.lt/pls/inter3/dokpaieska.showdoc_l?p_id=254427&p_query=&p_tr2= Leidimų laikinai gyventi Lietuvos Respublikoje užsieniečiams išdavimo bei fiktyvios santuokos sudarymo įvertinimo taisyklės (Rules on issuance of temporary residence permit in the Republic of Lithuania for aliens and assessment of fictitiuos marriage), approved by the Minister of the Internal Affairs of the Republic of Lithuania order No 1V-329 of 12 October 2005 as amended by No 1V-242 of 28 June 2007, Valstybės žinios, 2005, No 126-4509; 2007, No 75-2981 (thereinafter – Order 1V-329) http://www3.lrs.lt/pls/inter3/dokpaieska.showdoc_l?p_id=301446&p_query=&p_tr2= Lietuvos Respublikos vidaus reikalų ministro 2008 m. liepos 25 d. įsakymas Nr. 1V-290 ,,Dėl pažymos Europos Sąjungos valstybės narės piliečiui jo teisei gyventi Lietuvos Respublikoje patvirtinti išdavimo tvarkos aprašo ir Europos Sąjungos valstybės narės piliečio šeimos nario leidimo gyventi Lietuvos Respublikoje išdavimo, galiojimo pratęsimo ir panaikinimo Europos Sąjungos valstybės narės piliečio šeimos nariams tvarkos aprašo patvirtinimo” (The Ministry of Internal Affairs order No 1V-290 of 25


July 2008 on approval of Procedures on issuance of certificate confirming residence rights for a Citizen of a Member State of the European Union and Procedures on issuance, extension and revocation of residence permits for European Union citizen‘s family members who are not nationals of a Member State of EU, Valstybės žinios, 2008, Nr. 88-3537 (thereinafter – Order 1V-290) http://www3.lrs.lt/pls/inter3/dokpaieska.showdoc_l?p_id=325573&p_query=&p_tr2=


ANNEX III:

Selected national case law

Judgment of the Supreme Court of Lithuania of 26 April 2006 in civil case No 3K-3-302/2006,).16

16

http://www.lat.lt/default.aspx?item=tn_liteko&lang=1


ANNEX IV: Application for issuance (extension) of the EC Residence Permit See: http://www.migracija.lt/index.php?-1068915596 _______________________________________________________ (Pirmas ir kiti vardai / given and other names,

pavardė / surname)

Teritorinės policijos įstaigos migracijos skyriui, poskyriui ar grupei (Lietuvos Respublikos diplomatinei atstovybei ar konsulinei įstaigai)

To a Migration office, suboffice or group of the territorial police body (to a diplomatic mission or a consular office of the Republic of Lithuania) Išduoti (PRATĘSTI) EUROPOS BENDRIJŲ VALSTYBĖS NARĖS PILIEČIOleidimą gyventi /APPLICATIONFOR ISSUANCE (EXTENTION) OF THE EC RESIDENCE PERMIT _____________ (data / date )

Prašau išduoti Europos Bendrijų valstybės narės piliečio leidimą gyventi / I hereby apply for the EC

residence permit.

1. Pateikiu duomenis apie save / I present the information about myself below: Pavardė Surname Ankstesnė pavardė Previous surname Pirmas ir kiti vardai Given and other names Lyti  Vyr. s Male Sex Gimimo vieta Place of birth Šeiminė padėtis Marital status Nevedęs Netekėjusi Single

Nuotraukos vieta

Mot. Female

Gimimo data: metai, mėnuo, diena Date of birth: YYYY MM DD

Vedęs Ištekėjusi Married Našlys (-ė) Widowed  Išsituokęs (-usi) Divorced Partnerystės sutartis Partnership contract Pilietybė Ankstesnė pilietybė Citizenship Previous citizenship Nuolatinės gyvenamosios vietos adresas kilmės valstybėje Address of permanent residence in the country of origin

Photo


Numatoma atvykimo į Lietuvą data Intended arrival date to Lithuania Būsimasis adresas Lietuvoje Intended address in Lithuania Asmens kodas Lietuvoje Personal code in Lithuania Ar sergate ligomis, kurios gali grėsti gyventojų sveikatai ? Are you suffering from illnesses that are threatening public health ?

 Taip Yes

 Ne No

2. Atvykimo į Lietuvos Respubliką tikslas (nurodyti) / Purpose of arrival to the Republic of Lithuania

(please give details): 

   

Gyventi su šeima: To stay with family:

Lietuvos Respublikoje gyvena tėvai Parents live in the Republic of Lithuania

Lietuvos Respublikoje gyvena vaikai Children live in the Republic of Lithuania Lietuvos Respublikoje gyvena sutuoktinis Spouse lives in the Republic of Lithuania

 

Esu Europos Bendrijų valstybės narės piliečio šeimos narys I am a family member of the citizen of the EC Member State

 

Dirbti Lietuvos Respublikoje To work under employment contract in the Republic of Lithuania Užsiimti teisėta veikla Lietuvos Respublikoje To engage in lawful activities in the Republic of Lithuania

Teikti paslaugas To provide services Gauti paslaugų To receive services Turiu teisėtą pragyvenimo šaltinį I have lawful source of living Studijuoti mokymo įstaigoje, stažuotis, kelti kvalifikaciją To study, intern or improve qualification in educational institution

Kvietėjo vardas ir pavardė, adresas ir tel. Nr. arba įmonės pavadinimas, adresas, tel. Nr. Name and surname, address and telephone of inviting person or organisation

3. Kartu su manimi atvyksta / The following are arriving together with me: Giminystės ryšys Family relationship

Vardas ir pavardė Name and surname

Gimimo data ir vieta Date and place of birth

4. Prašau išduoti EB leidimą gyventi / Please issue the EC residence permit:

Lytis Sex

Pilietybė Citizenship


Prašau išduoti EB leidimą Tai mano This is my gyventi, galiojantį iki Please issue the EC residence permit expiring on Ankstesnio leidimo galiojimo laikas Validity term of previous permit

pirmas leidimas First permit

naujas leidimas New permit

5. Kelionės dokumento (asmens tapatybės kortelės) duomenys / Data of travel document (identity card): Kelionės dokumentas (užsienio pasas, ATK)  Travel document (foreign passport, ID card) Dokumento numeris, išdavimo data ir valstybė Document number, date and country of issue

Kitas dokumentas (nurodyti) Other document (please indicate)

Dokumentą išdavusi institucija Document issued by Dokumentas galioja iki Document expires on 6. Informacija apie sutuoktinį / Information about spouse: Pavardė Surname Pirmas ir kiti vardai Given and other names Gimimo data Date of birth Gimimo vieta Place of birth Pilietybė Citizenship Santuokos data ir vieta Date and place of marriage Nuolatinės gyvenamosios vietos adresas ir telefonas Address and telephone of permanent residence

Ankstesnė pavardė Previous surname

Ankstesnė pilietybė Previous citizenship

7. Informacija apie vaikus arba išlaikomus asmenis (neatsižvelgiant į children or dependants (despite their age): Vardas ir pavardė Name and surname

Giminystės ryšys Family relationship

Pilietybė Citizenship

8. Informacija apie tėvus / Information about parents:

amžių) / Information about

Gimimo data Date of birth

Lytis Sex

Adresas Address


Tėvo vardas ir pavardė Full name of father Gimimo data Date of birth Adresas kilmės valstybėje Address in the country of origin Motinos vardas ir pavardė Full name of mother Gimimo data Date of birth Adresas kilmės valstybėje Address in the country of origin

Pilietybė Citizenship

Pilietybė Citizenship

9. Pragyvenimo lėšos Lietuvoje (per mėn. litais) ir jų šaltinis / Means and source of living in Lithuania (monthly, in litas):

10. Papildomai noriu pareikšti / In addition, I would like to declare:

PRIDEDAMA / ATTACHED (nurodomi prie prašymo pridedami dokumentai / list of the documents attached to the application): _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ Sutinku, kad, vadovaujantis Lietuvos Respublikos asmens duomenų teisinės apsaugos įstatymu (Žin., 1996, Nr. 63-1479; 2003, Nr. 15-597), būtų tvarkomi ir gaunami duomenys apie mane, sprendžiant su EB leidimu gyventi susijusius klausimus. Garantuoju, kad mano pateikti duomenys yra teisingi, ir žinau, kad neteisingas duomenų pateikimas gali turėti įtakos priimant sprendimą dėl EB leidimo gyventi išdavimo arba dėl išduoto EB leidimo gyventi panaikinimo. I agree that according to the Republic of Lithuania law on Legal Protection of Personal Data information about me would be gained and administered when dealing with the issues related to the EC residence permit. I do hereby declare that the above data is correct and I am aware that misrepresentation of data may result in the denial of issue of the EC residence permit or cancellation of valid EC residence permit.

(asmens parašas / personal signature)

(vardas ir pavardė / name and surname)


Prašymą ir jame nurodytus dokumentus priėmiau ir patikrinau, ar jie tinkamai užpildyti: __________________________________________ (priėmusio dokumentus valstybės tarnautojo pareigų pavadinimas) ________________________ (vardas ir pavardė) ________________________ (parašas) ________________________ (data)

lithuania_compliance_study_en  

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