QUESTIONNAIRE FOR THE NATIONAL REPORT ON THE IMPLEMENTATION OF THE DIRECTIVE : LONG-TERM RESIDENTS OF 25 NOVEMBER 2003

Transcription

1 QUESTIONNAIRE FOR THE NATIONAL REPORT ON THE IMPLEMENTATION OF THE DIRECTIVE : LONG-TERM RESIDENTS OF 25 VEMBER 2003 IN: CZECH REPUBLIC by Vera Honuskova Law Faculty, Charles University, Prague /PhD. candidate/ honuv3aj@prf.cuni.cz November 11, 2007 The person in the team of thematic coordination in charge of this directive that you can contact if you have a question or need help when completing this questionnaire is: Ricky van Oers, , r.vanoers@jur.ru.nl. General comments: Though the Court s judgment of 26 June 2006 (C-540/03) was aimed at Directive 2003/86 on family reunification, it is likely that a number of the Court s decisions, particularly those concerning the limited margin of discretion and the relationship between human rights instruments and the Directive, will also apply to the Long-Term Residents Directive. It is therefore advisable to take a closer look at this judgment, especially to legal considerations 22-23, 52-53, 57-59, 60-61, and The purpose of the Directive is to determine the terms for granting and withdrawing longterm resident status and the rights pertaining thereto and terms for the exercise of rights of residence by long-term residents in other Member States. FIRST PART 1. RMS OF TRANSPOSITION AND JURISPRUDENCE Q.1.A. Identify the main (because of its content) norm(s) of transposition and indicate its legal nature This question includes even norms adopted before the adoption of the directive but ensuring its transposition (what is called a pre-existing norm in the table of correspondence). Quote the norm of transposition and not only the norm modified by it (the same is true in case of existence of a code of aliens law) About legal nature in the table below: legislative refers to a norm adopted in principle by the Parliament; regulation refers to a norm complementing the law and adopted in principle by the executive power; circular or instructions refer to practical rules about implementation of laws and regulations and adopted in principle by the administrative authorities 169

2 Please duplicate the table below if there is more than one MAIN norm of transposition This table is about: X a text already adopted a text which is still a project to be adopted TITLE: Act No. 161/2006 Coll., amending Act No. 326/1999 Coll., Aliens Act, and amending other laws DATE: March 16, 2006 NUMBER: Act. No. 161/2006 Coll. DATE OF ENTRY INTO FORCE: April 27, 2006 PROVISIONS CONCERNED (for example if the norm is not devoted only to the transposition of the concerned directive): Part 1 Art. I subsection 16 /Sec. 18 d)/8 ALA/, Part 1 Art. I subsection 42 /Sec. 42c ALA/, Part 1 Art. I subs. 43 /Sec. 44/4 f) and g) ALA/, Part 1 Art. I subs. 44 /Sec. 44a/1, 4, 5-7 ALA/, Part 1 Art. I subs. 46 /Sec. 46 ALA/, Part 1 Art. I subs. 47 /Sec. 46b ALA/, Part 1 Art. I subs. 64 /esp. Secs. 68, 75, 76 (b)(c), 77/1,2, 78, 79, 80, 83, 84, 85 ALA/, Part 1 Art. I subs. 82 /Sec. 119 ALA/, Part 1 Art. I subs. 84 / Sec. 119a ALA/, Part 1 Art. I subs. 104 /Sec. 159/6-8 ALA/, Part 1 Art. I subs. 118 /Sec. 169/2 ALA/ Part 1 Art. I subs. 132 /Sec. 173 ALA/; Part 4: amendment of Trade Licence Act, Art. VII subs. 6; Part 5 amendment of Criminal Code, Art. VIII; Part 6: amendment of Act on Education, Art. IX; Part 7: amendment of University Education Act, Art. X; Part 8: amendment of Act on Mutual Recognition of Qualifications, Art. XI; Part 10: amendment of Employment Act, Art. XIII; Part 12: amendment of Building Savings Act, Art. XV. REFERENCES OF PUBLICATION IN THE OFFICIAL JOURNAL: Issue No. 55/2006 of the Collection of Laws of the Czech Republic (pp ) promulgated on April 27, 2006 LEGAL NATURE (indicate a cross in the correct box): X LEGISLATIVE: REGULATION: CIRCULAR or INSTRUCTIONS: Q.1.B. List the others norms of transposition by order of importance of their legal nature (first laws, secondly regulations; thirdly circulars or instructions): This question includes even norms adopted before the adoption of the directive but ensuring its transposition (what is called a pre-existing norm in the table of correspondence). Quote the norm of transposition and not only the norm modified by it (the same is true in case of existence of a code of aliens law) 170

3 Please use one table per norm and duplicate as much as necessary This table is about: X a text already adopted a text which is still a project to be adopted TITLE: Act No. 165/2006 Coll., amending Act No. 325/1999 Coll., Asylum Act, and amending other laws DATE: March 16, 2006 NUMBER: Act No. 165/2006 Coll. DATE OF ENTRY INTO FORCE: September 1, 2006 PROVISIONS CONCERNED : (for example if the norm is not devoted only to the transposition of the concerned directive): Part 3 Art. V subsection 28 /Sec. 86/2 ALA/ REFERENCES OF PUBLICATION IN THE OFFICIAL JOURNAL: Issue No. 56/2006 of the Collection of Laws of the Czech Republic (pp ) promulgated on April 28, 2006 LEGAL NATURE (indicate a cross in the right box): X LEGISLATIVE REGULATION CIRCULAR OR INSTRUCTIONS This table is about: X a text already adopted a text which is still a project to be adopted TITLE: Act No. 222/2003 Coll., amending Act No. 326/1999 Coll., Alien s Act, and amending other laws DATE: June 26, 2003 NUMBER: Act No. 222/2003 Coll. DATE OF ENTRY INTO FORCE: January 1, 2004 PROVISIONS CONCERNED : Part 1 Art. 1 subs. 2 /Sec. 2 c) ALA/, Part 1 Art. 1 subsection 39 /Sec. 30, 31, 42 /ALA/, Part 1 Art. 1 subs. 45 /Sec. 56 ALA/. (for example if the norm is not devoted only to the transposition of the concerned directive) REFERENCES OF PUBLICATION IN THE OFFICIAL JOURNAL: Issue No. 79/2002 of the Collection of Laws of the Czech Republic (pp ) promulgated on July 31, 2003 LEGAL NATURE (indicate a cross in the right box): X LEGISLATIVE REGULATION CIRCULAR OR INSTRUCTIONS 171

4 This table is about: X a text already adopted a text which is still a project to be adopted TITLE: Act No. 428/2005 Coll., amending Act No. 326/1999 Coll., Alien s Act, and amending other laws DATE: September 23, 2005 NUMBER: Act No. 428/2005 Coll. DATE OF ENTRY INTO FORCE: November 24, 2005 PROVISIONS CONCERNED : Part 1 Art. 1 subsection 46 /Sec. 42a ALA/ (for example if the norm is not devoted only to the transposition of the concerned directive) REFERENCES OF PUBLICATION IN THE OFFICIAL JOURNAL: Issue No. 147/2005 of the Collection of Laws of the Czech Republic (pp ) promulgated on October 25, 2005 LEGAL NATURE (indicate a cross in the right box): X LEGISLATIVE REGULATION CIRCULAR OR INSTRUCTIONS This table is about: X a text already adopted a text which is still a project to be adopted TITLE: Act No. 326/1999 Coll., Alien s Act, as amended DATE: November 30, 1999 NUMBER: Act No. 326/1999 Coll. DATE OF ENTRY INTO FORCE: January 1, 2000 PROVISIONS CONCERNED : esp. Sec. 9, Sec. 30, Sec. 31, Sec. 32, Sec. 56, Sec. 65, Sec. 66, Sec. 70, Sec. 120, Sec. 122, Sec. 172/1 (for example if the norm is not devoted only to the transposition of the concerned directive) REFERENCES OF PUBLICATION IN THE OFFICIAL JOURNAL: Issue No. 106/1999 of the Collection of Laws of the Czech Republic (pp ) promulgated on December 23, 1999 LEGAL NATURE (indicate a cross in the right box): X LEGISLATIVE REGULATION CIRCULAR OR INSTRUCTIONS 172

5 This table is about: X a text already adopted a text which is still a project to be adopted TITLE: Act No. 108/2006 Coll., on Social Services DATE: March 14, 2006 NUMBER: Act No. 108/2006 Coll. DATE OF ENTRY INTO FORCE: January 1, 2007 PROVISIONS CONCERNED : Sec. 4/1 (f) (for example if the norm is not devoted only to the transposition of the concerned directive) REFERENCES OF PUBLICATION IN THE OFFICIAL JOURNAL: Issue No. 37/2006 of the Collection of Laws of the Czech Republic (pp ) promulgated on March 31, 2006 LEGAL NATURE (indicate a cross in the right box): X LEGISLATIVE REGULATION CIRCULAR OR INSTRUCTIONS This table is about: X a text already adopted a text which is still a project to be adopted TITLE: Act No. 111/2006 Coll., on Material Need DATE: March 14, 2006 NUMBER: Act No. 111/2006 Coll. DATE OF ENTRY INTO FORCE: January 1, 2007 PROVISIONS CONCERNED : Sec. 5 (for example if the norm is not devoted only to the transposition of the concerned directive) REFERENCES OF PUBLICATION IN THE OFFICIAL JOURNAL: Issue No. 37/2006 of the Collection of Laws of the Czech Republic (pp ) promulgated on March 31, 2006 LEGAL NATURE (indicate a cross in the right box): X LEGISLATIVE REGULATION CIRCULAR OR INSTRUCTIONS 173

6 This table is about: X a text already adopted a text which is still a project to be adopted TITLE: Act No. 435/2004 Coll., on Employment, as amended DATE: May 13, 2004 NUMBER: Act No. 435/2004 Coll. DATE OF ENTRY INTO FORCE: October 1, 2004 PROVISIONS CONCERNED : Sec. 4, Secs /esp. Sec. 98/ (for example if the norm is not devoted only to the transposition of the concerned directive) REFERENCES OF PUBLICATION IN THE OFFICIAL JOURNAL: Issue No. 143/2004 of the Collection of Laws of the Czech Republic (pp ) promulgated on July 23, 2004 LEGAL NATURE (indicate a cross in the right box): X LEGISLATIVE REGULATION CIRCULAR OR INSTRUCTIONS This table is about: X a text already adopted a text which is still a project to be adopted TITLE: Act No. 262/2006 Coll., Labour Code, as amended DATE: April 21, 2006 NUMBER: Act No. 262/2006 Coll. DATE OF ENTRY INTO FORCE: January 1, 2007 PROVISIONS CONCERNED : (for example if the norm is not devoted only to the transposition of the concerned directive) REFERENCES OF PUBLICATION IN THE OFFICIAL JOURNAL: Issue No. 84/2006 of the Collection of Laws of the Czech Republic (pp ) promulgated on June 6, 2006 LEGAL NATURE (indicate a cross in the right box): X LEGISLATIVE REGULATION CIRCULAR OR INSTRUCTIONS 174

7 This table is about: X a text already adopted a text which is still a project to be adopted TITLE: Act No. 54/1956 Coll., on Health Insurance of Employees, as amended DATE: November 30, 1956 NUMBER: Act No. 54/1956 Coll. DATE OF ENTRY INTO FORCE: January 1, 1957 PROVISIONS CONCERNED : Sec. 2 (for example if the norm is not devoted only to the transposition of the concerned directive) REFERENCES OF PUBLICATION IN THE OFFICIAL JOURNAL: Issue No. 29/1956 of the Collection of Laws of the Czech Republic (pp ) promulgated on December 17, 1956 LEGAL NATURE (indicate a cross in the right box): X LEGISLATIVE REGULATION CIRCULAR OR INSTRUCTIONS This table is about: X a text already adopted a text which is still a project to be adopted TITLE: Act No. 155/1995 Coll., on Pension Insurance, as amended DATE: June 30, 1995 NUMBER: Act No. 155/1995 Coll. DATE OF ENTRY INTO FORCE: January 1, 1996 PROVISIONS CONCERNED : Sec. 5 (for example if the norm is not devoted only to the transposition of the concerned directive) REFERENCES OF PUBLICATION IN THE OFFICIAL JOURNAL: Issue No. 41/1995 of the Collection of Laws of the Czech Republic (pp ) promulgated on August 4, 1995 LEGAL NATURE (indicate a cross in the right box): X LEGISLATIVE REGULATION CIRCULAR OR INSTRUCTIONS 175

8 This table is about: X a text already adopted a text which is still a project to be adopted TITLE: Act No. 117/1995 Coll., on State Social Welfare, as amended DATE: May 26, 1995 NUMBER: Act No. 117/1995 Coll. DATE OF ENTRY INTO FORCE: October 1, 1995 PROVISIONS CONCERNED : Sec. 3 (for example if the norm is not devoted only to the transposition of the concerned directive) REFERENCES OF PUBLICATION IN THE OFFICIAL JOURNAL: Issue No. 31/1995 of the Collection of Laws of the Czech Republic (pp ) promulgated on July 14, 1995 LEGAL NATURE (indicate a cross in the right box): X LEGISLATIVE REGULATION CIRCULAR OR INSTRUCTIONS This table is about: X a text already adopted a text which is still a project to be adopted TITLE: Act No. 500/2004 Coll., Administrative Proceedings Act, as amended DATE: June 24, 2004 NUMBER: Act No. 500/2004 Coll. DATE OF ENTRY INTO FORCE: January 1, 2006 PROVISIONS CONCERNED : Sec. 4, Sec. 68, Sec. 72, Sec. 80, Sec. 81 (for example if the norm is not devoted only to the transposition of the concerned directive) REFERENCES OF PUBLICATION IN THE OFFICIAL JOURNAL: Issue No. 174/2004 of the Collection of Laws of the Czech Republic (pp ) promulgated on September 24, 2004 LEGAL NATURE (indicate a cross in the right box): X LEGISLATIVE REGULATION CIRCULAR OR INSTRUCTIONS 176

9 This table is about: X a text already adopted a text which is still a project to be adopted TITLE: Act No. 150/2002 Coll., Code of Administrative Justice DATE: March 21, 2002 NUMBER: Act No. 150/2002 Coll. DATE OF ENTRY INTO FORCE: January 1, 2003 PROVISIONS CONCERNED : esp. Sec. 35, Sec. 65 (for example if the norm is not devoted only to the transposition of the concerned directive) REFERENCES OF PUBLICATION IN THE OFFICIAL JOURNAL: Issue No. 61/2002 of the Collection of Laws of the Czech Republic (pp ) promulgated on April 17, 2002 LEGAL NATURE (indicate a cross in the right box): X LEGISLATIVE REGULATION CIRCULAR OR INSTRUCTIONS This table is about: X a text already adopted a text which is still a project to be adopted TITLE: Act No. 187/2006 Coll., on Health Insurance of Employees DATE: March 14, 2006 NUMBER: Act No. 187/2006 Coll. DATE OF ENTRY INTO FORCE: January 1, 2008 PROVISIONS CONCERNED : Sec. 1, Sec. 2, Sec. 5, Sec. 6 (for example if the norm is not devoted only to the transposition of the concerned directive) REFERENCES OF PUBLICATION IN THE OFFICIAL JOURNAL: Issue No. 64/2006 of the Collection of Laws of the Czech Republic (pp ) promulgated on May 12, 2006 LEGAL NATURE (indicate a cross in the right box): X LEGISLATIVE REGULATION CIRCULAR OR INSTRUCTIONS 177

10 This table is about: X a text already adopted a text which is still a project to be adopted TITLE: Act No. 110/2006 Coll., Act on Subsistence Minimum DATE: March 14, 2006 NUMBER: Act No. 110/2006 Coll. DATE OF ENTRY INTO FORCE: January 1, 2007 PROVISIONS CONCERNED : Sec. 2, Sec. 3 (for example if the norm is not devoted only to the transposition of the concerned directive) REFERENCES OF PUBLICATION IN THE OFFICIAL JOURNAL: Issue No. 37/2006 of the Collection of Laws of the Czech Republic (pp ) promulgated on March 31, 2006 LEGAL NATURE (indicate a cross in the right box): X LEGISLATIVE REGULATION CIRCULAR OR INSTRUCTIONS This table is about: X a text already adopted a text which is still a project to be adopted TITLE: Act No. 561/2004 Coll., on Pre-elementary, Elementary, Secondary, Higher Vocational and Other Education (Act on Education) DATE: September 24, 2004 NUMBER: Act No. 561/2004 Coll. DATE OF ENTRY INTO FORCE: January 1, 2005 PROVISIONS CONCERNED : Sec. 20 par. 1 (for example if the norm is not devoted only to the transposition of the concerned directive) REFERENCES OF PUBLICATION IN THE OFFICIAL JOURNAL: Issue No. 190/2004 of the Collection of Laws of the Czech Republic (pp ) promulgated on November 10, LEGAL NATURE (indicate a cross in the right box): X LEGISLATIVE REGULATION CIRCULAR OR INSTRUCTIONS 178

11 TITLE: Act No. 140/2001 Coll., amending the Act No. 326/1999 Coll., Aliens Act and amending other acts DATE: April 3, 2001 NUMBER: Act No. 140/2001 Coll. DATE OF ENTRY INTO FORCE: July 1, 2001 PROVISIONS CONCERNED (for example if the norm is not devoted only to the transposition of the concerned directive): Part 1 Art. I subsec. 86 REFERENCES OF PUBLICATION IN THE OFFICIAL JOURNAL: Issue. 57/2001 of the Collection of Laws of the Czech Republic (pp ), promulgated on April 3, LEGAL NATURE (indicate a cross in the right box): X LEGISLATIVE REGULATION CIRCULAR OR INSTRUCTIONS This table is about: X a text already adopted a text which is still a project to be adopted TITLE: Act No. 48/1997 Coll., Public Medical Insurance Act DATE: March 7, 1997 NUMBER: Act No. 48/1997 Coll. DATE OF ENTRY INTO FORCE: April 1, 1997 PROVISIONS CONCERNED : Sec. 3 par. 1 lett. c) (for example if the norm is not devoted only to the transposition of the concerned directive) REFERENCES OF PUBLICATION IN THE OFFICIAL JOURNAL: Issue No. 16/1997 of the Collection of Laws of the Czech Republic (pp ) promulgated on March 28, LEGAL NATURE (indicate a cross in the right box): X LEGISLATIVE REGULATION CIRCULAR OR INSTRUCTIONS 179

12 This table is about: X a text already adopted a text which is still a project to be adopted TITLE: Act No. 634/1992 Coll., Consumer Protection Act DATE: December 16, 1992 NUMBER: Act No. 634/1992 Coll. DATE OF ENTRY INTO FORCE: December 31, 1992 PROVISIONS CONCERNED : Sec. 2 par. 1 lett. a) (for example if the norm is not devoted only to the transposition of the concerned directive) REFERENCES OF PUBLICATION IN THE OFFICIAL JOURNAL: Issue No. 130/1992 of the Collection of Laws of the Czech Republic (pp ) promulgated on December 31, LEGAL NATURE (indicate a cross in the right box): X LEGISLATIVE REGULATION CIRCULAR OR INSTRUCTIONS This table is about: X a text already adopted a text which is still a project to be adopted TITLE: Act No. 586/1992 Coll., Income Tax Act DATE: November 20, 1992 NUMBER: Act No. 586/1992 Coll. DATE OF ENTRY INTO FORCE: January 1, 1993 PROVISIONS CONCERNED : Sec. 2 par. 1, par. 2 (for example if the norm is not devoted only to the transposition of the concerned directive) REFERENCES OF PUBLICATION IN THE OFFICIAL JOURNAL: Issue No. 117/1992 of the Collection of Laws of the Czech Republic (pp ) promulgated on December 18, LEGAL NATURE (indicate a cross in the right box): X LEGISLATIVE REGULATION CIRCULAR OR INSTRUCTIONS 180

13 This table is about: X a text already adopted a text which is still a project to be adopted TITLE: Act No. 455/1991 Coll., Trade License Act DATE: October 2, 1991 NUMBER: Act No. 455/1991 Coll. DATE OF ENTRY INTO FORCE: January 1, 1992 PROVISIONS CONCERNED : Sec. 5 par. 2 (for example if the norm is not devoted only to the transposition of the concerned directive) REFERENCES OF PUBLICATION IN THE OFFICIAL JOURNAL: Issue No. 87/1991 of the Collection of Laws of the Czech Republic (pp ) promulgated on November 15, LEGAL NATURE (indicate a cross in the right box): X LEGISLATIVE REGULATION CIRCULAR OR INSTRUCTIONS This table is about: X a text already adopted a text which is still a project to be adopted TITLE: Constitutional Act No. 23/1991 Coll., Charter of Human Rights DATE: January 9, 1991 NUMBER: Act No. 23/1991 Coll. DATE OF ENTRY INTO FORCE: February 8, 1991 PROVISIONS CONCERNED : Art. 20 par. 1, Art. 14 par. 1 (for example if the norm is not devoted only to the transposition of the concerned directive) REFERENCES OF PUBLICATION IN THE OFFICIAL JOURNAL: Issue No. 6/1991 of the Collection of Laws of the Czech Republic (pp ) promulgated on February 8, LEGAL NATURE (indicate a cross in the right box): X LEGISLATIVE REGULATION CIRCULAR OR INSTRUCTIONS 181

14 This table is about: X a text already adopted a text which is still a project to be adopted TITLE: Act No. 100/1988 Coll., on Social Security DATE: June 16, 1988 NUMBER: Act No. 100/1988 Coll. DATE OF ENTRY INTO FORCE: October 1, 1988 PROVISIONS CONCERNED : Sec. 103 par. 1 (for example if the norm is not devoted only to the transposition of the concerned directive) REFERENCES OF PUBLICATION IN THE OFFICIAL JOURNAL: Issue No. 21/1988 of the Collection of Laws of the Czech Republic (pp ) promulgated on June16, LEGAL NATURE (indicate a cross in the right box): X LEGISLATIVE REGULATION CIRCULAR OR INSTRUCTIONS This table is about: X a text already adopted a text which is still a project to be adopted TITLE: Act No. 40/1964 Coll., Civil Code DATE: February 28, 1964 NUMBER: Act No. 40/1964 Coll. DATE OF ENTRY INTO FORCE: April 1, 1964 PROVISIONS CONCERNED : Sec. 2 par. 2 (for example if the norm is not devoted only to the transposition of the concerned directive) REFERENCES OF PUBLICATION IN THE OFFICIAL JOURNAL: Issue No. 19/1964 of the Collection of Laws of the Czech Republic (pp ) promulgated on March 5, LEGAL NATURE (indicate a cross in the right box): X LEGISLATIVE REGULATION CIRCULAR OR INSTRUCTIONS 182

15 This table is about: X a text already adopted a text which is still a project to be adopted TITLE: Act No. 99/1963 Coll., Civil Proceedings Code DATE: December 4, 1963 NUMBER: Act No. 99/1963 Coll. DATE OF ENTRY INTO FORCE: April 1, 1964 PROVISIONS CONCERNED : Sec. 30 par. 1, par. 2 (for example if the norm is not devoted only to the transposition of the concerned directive) REFERENCES OF PUBLICATION IN THE OFFICIAL JOURNAL: Issue No. 56/1963 of the Collection of Laws of the Czech Republic (pp ) promulgated on December 17, LEGAL NATURE (indicate a cross in the right box): X LEGISLATIVE REGULATION CIRCULAR OR INSTRUCTIONS This table is about: a text already adopted X a text which is still a project to be adopted TITLE: Government Bill amending Act No. 326/1999 Coll., the Aliens Act and amending other Acts DATE: April NUMBER: DATE OF ENTRY INTO FORCE: PROVISIONS CONCERNED : - Part. 1 Art. 1 Subs. 7 (Sec. 9 par. 1 lett. a), b), g), h), i), j) ALA), - Part 1 Art. 1 subs. 82 (Sec. 68 par. 2 ALA), - Part 1 Art. 1 subs. 83 (Sec. 68 par. 2 ALA), - Part 1 Art. 1 subs. 90 (Sec. 71 par. 1 ALA), - Part 1 Art. 1 subs. 89 (Sec. 70 par. 5 ALA). (for example if the norm is not devoted only to the transposition of the concerned directive) REFERENCES OF PUBLICATION IN THE OFFICIAL JOURNAL: LEGAL NATURE (indicate a cross in the right box): X LEGISLATIVE REGULATION CIRCULAR OR INSTRUCTIONS Q.2. Q.2.A. THIS QUESTION IS IN PRINCIPLE ONLY FOR FEDERAL OR ASSIMILATED MEMBER STATES LIKE AUSTRIA, BELGIUM, GERMANY, ITALY, SPAIN Explain which level of government is competent to adopt the norms of transposition. 183

16 Please include your answer in the tables below LEGISLATIVE RULES COMPETENCES OF THE FEDERAL/CENTRAL LEVEL: COMPETENCES OF THE COMPONENTS: EXPLANATIONS IF NECESSARY: REGULATIONS COMPETENCES OF THE FEDERAL/CENTRAL LEVEL: COMPETENCES OF THE COMPONENTS: EXPLANATIONS IF NECESSARY: CIRCULAR OR INSTRUCTIONS COMPETENCES OF THE FEDERAL/CENTRAL LEVEL: COMPETENCES OF THE COMPONENTS: EXPLANATIONS IF NECESSARY: Q.2.B. In case, explain if the federal structure and the distribution of competences between the different levels pose any problem or difficulty regarding the transposition and/or the implementation of the directive. Q.3. Explain which authorities are competent for the practical implementation of the norm of transposition by taking the decisions in individual cases. Please use one table per competence concerned and duplicate it if necessary COMPETENCE Granting/withdrawal of long-term resident status CONCERNED: CENTRAL Ministry of Interior MINISTRY OF: DIRECTION OR Regional Directorate of Alien s and Border Police Service SERVICE WITHIN THE ABOVE MINISTRY: OTHER LEVEL OF ADMINISTRATION: IF NECESSARY, COMMENT ABOUT THE NATURE OF THE AUTHORITY (for instance if it is independent of the competent minister) 184

17 COMPETENCE CONCERNED: CENTRAL MINISTRY OF: DIRECTION OR SERVICE WITHIN THE ABOVE MINISTRY: OTHER LEVEL OF ADMINISTRATION: IF NECESSARY, COMMENT ABOUT THE NATURE OF THE AUTHORITY (for instance if it is independent of the competent minister) COMPETENCE CONCERNED: CENTRAL MINISTRY OF: DIRECTION OR SERVICE WITHIN THE ABOVE MINISTRY: OTHER LEVEL OF ADMINISTRATION: IF NECESSARY, COMMENT ABOUT THE NATURE OF THE AUTHORITY (for instance if it is independent of the competent minister) Access to employment Ministry of Labour and Social Affairs Local Labour Offices Access to employment and self-employed activity Ministry of Industry and Trade Local Trades Licensing Offices COMPETENCE CONCERNED: CENTRAL MINISTRY OF: DIRECTION OR SERVICE WITHIN THE ABOVE MINISTRY: OTHER LEVEL OF ADMINISTRATION: IF NECESSARY, COMMENT ABOUT THE NATURE OF Education and vocational training Ministry of Education, Youth and Sports Local schools 185

18 THE AUTHORITY (for instance if it is independent of the competent minister) COMPETENCE CONCERNED: CENTRAL MINISTRY OF: DIRECTION OR SERVICE WITHIN THE ABOVE MINISTRY: OTHER LEVEL OF ADMINISTRATION: IF NECESSARY, COMMENT ABOUT THE NATURE OF THE AUTHORITY (for instance if it is independent of the competent minister) COMPETENCE CONCERNED: CENTRAL MINISTRY OF: DIRECTION OR SERVICE WITHIN THE ABOVE MINISTRY: OTHER LEVEL OF ADMINISTRATION: IF NECESSARY, COMMENT ABOUT THE NATURE OF THE AUTHORITY (for instance if it is independent of the competent minister) COMPETENCE CONCERNED: CENTRAL MINISTRY OF: DIRECTION OR SERVICE WITHIN THE ABOVE Recognition of professional diplomas, certificates and other qualifications Ministry of Industry and Trade, Ministry of Education, Youth and Sports For regulated professions: Czech Bar Association, Energy Regulatory Office, Ministry of Health, Ministry of Agriculture, The Chamber of Tax Advisers, Chamber of Patent Agents, Czech Chamber of Chartered Engineers and Technicians and others Social security, social assistance and social protection Ministry of Labour and Social Affairs Local Social Service Offices Tax benefits Ministry of Finance Local Financial Offices 186

19 MINISTRY: OTHER LEVEL OF ADMINISTRATION: IF NECESSARY, COMMENT ABOUT THE NATURE OF THE AUTHORITY (for instance if it is independent of the competent minister) COMPETENCE CONCERNED: CENTRAL MINISTRY OF: DIRECTION OR SERVICE WITHIN THE ABOVE MINISTRY: OTHER LEVEL OF ADMINISTRATION: IF NECESSARY, COMMENT ABOUT THE NATURE OF THE AUTHORITY (for instance if it is independent of the competent minister) COMPETENCE CONCERNED: CENTRAL MINISTRY OF: DIRECTION OR SERVICE WITHIN THE ABOVE MINISTRY: OTHER LEVEL OF ADMINISTRATION: IF NECESSARY, COMMENT ABOUT THE NATURE OF THE AUTHORITY (for instance if it is independent of the competent minister) Access to procedures for obtaining housing Ministry for Regional Development Freedom of association and affiliation and membership of an organisation representing workers or employers Ministry of Interior 187

20 Q.4. A. Has the main regulation foreseen explicitly by the main norm of transposition already been adopted or not: YES There was no main regulation foreseen explicitly by the main norm of transposition, therefore it is hard to answer "yes" or "no" to this question. Both answers would be incorrect in my opinion (answering "yes" would mean that the non existing - main regulation had been adopted, answering "no" would mean that the non existing - main regulation had not been adopted and since there is no regulation required, there was no need to adopt it). Q.4.B. If the main norm(s) of transposition foresees the adoption of one or several regulations, indicate if they have all been adopted: YES There were no regulation foreseen explicitly by the main norm of transposition, therefore it is hard to answer "yes" or "no" to this question. Both answers would be incorrect in my opinion (answering "yes" would mean that the non existing - main regulation had been adopted,answering "no" would mean that the non existing - main regulation had not been adopted and since there is no regulation required, there was no need to adopt it). If no, please indicate the missing text(s) in the table below Please use one line per missing text and duplicate it if necessary MISSING TEXTS INDICATE HERE THE MISSING TEXTS Add if necessary some explanations (specify in particular if the missing texts are at least under preparation or foreseen in the very near future): 188

21 SECOND PART 2. TRANSPOSITION OF THE DIRECTIVE IN NATIONAL LAW In each answer, please specify the relevant provisions of the national law Q. 5.A. (personal scope of the Directive) Article 3(1) and Article 4(1) - Has the term lawful residence been specified in the national law and if yes, how is that term specified? The Aliens Act specifies several types of visas and residence permits (visas are used for shorter period of time, for the stay up to one year) and defines very strictly the possibilities of the third country nationals to reside on the territory of Czech Republic without a visa or a residence permit (Sec. 18 ALA). If a person does not possess a visa or a residence permit and is not exempted from a duty to have one then he/she is residing unlawfully. But there is no definition of the term lawful residence. The term lawful residence has not been specified in the national law as such. The law stipulates, that only the stay on long term visa (one year visa) or on long term residence permit can be taken into account when calculating the five years residence required by the Directive. So the lawful residence for the purpose of the Directive is the stay on long term visa (one year visa) and on long term residence permit (both can be counted as temporary). 7 - Is it possible to have lawful residence without a residence permit? Strictly legally speaking yes. But not every stay which is considered legal will be taken into account when calculating the five years period. The law contains provisions on the possibilities to reside on the territory without a visa (and it is lawful stay then), this possibility is provided inter alia if an international treaty or directly applicable EC regulation stipulates so, if a person is in a detention centre, in a custody, if he is a holder of a EC long-term resident status issued by another Member state if his/her stay is no longer than three months etc. Besides this it is always necessary to possess a visa or a residence permit for a third country national. If a person does not possess a visa or a residence permit and is not exempted from a duty to have one then he/she is residing unlawfully. Only the stay on long term visa (one year visa) or on long term residence permit can be taken into account when calculating the five years residence required by the Directive. 7 The Czech law differs between the temporary stay and permanent stay. The third country national can stay in the country temporarly inter alia without visa, on short term visa, long term visa, long term residence permit etc. Then the third country national can stay in the country permanently on the basis of the permanent residence permit.the statuses are connected, the third country national must be granted the visa at first, then the long term residence permit can be issued (after one year of stay on a visa) and at last the permanent residence permit can be issued (after five years of continuous stay etc.) and at last the permanent residence permit can be issued. There are exceptions, e.g. the long term residence permit can be given directly without previous stay on the visa to a third country national who acquired the EC status in another Member state, or there are some provisions according to the Art. 13 of the Directive, which give more favourable national provisions for granting the permanent residence permit. 189

22 Q. 5.B. Article 3(2) - Does the Directive in your country apply to categories of third country nationals who have been excluded by Article 3(2)? If yes, please specify to which categories. Directive applies also to the third country nationals who reside on the territory in order to pursue studies or vocational training (Sec. 68 par. 2 Aliens Act). - Does your national law exclude other categories of temporary admitted third country nationals than the categories mentioned in Article 3(2)(e) (au pairs, seasonal workers and posted workers)? YES x If yes, how is the term formally limited residence permit defined? Q. 5.C. Article 3(3) (bilateral and multilateral agreements) - During the transposition has reference been made to the bilateral and multilateral agreements mentioned in Article 3(3)? YES x If yes, with which effect? The reference has not been made during the transposition, but the migration law contains references on agreements, e.g. EEA agreement. Q. 6.A. Article 4(1) - Has a right to the long term resident status been codified in the legislation or does granting the status depend on the discretion of national authorities? Right to the long term resident status has been codified in the legislation (Sec. 83 Aliens Act). A person will be granted the status if he/she fulfils the conditions given by the law. 190

23 Note that the long-term resident status will be granted only to a holder of the permanent residence permit 8, i.e. the EC long-term resident status and a national permanent residence permit are connected (Sec. 83 par. 1 Aliens Act). The application for the long-term resident status is submitted either together with the application for the permanent residence permit or after the issue of the permanent residence permit (the third country national had been granted the permanent residence permit before the five years term). The application for the permanent residence permit can (with some exceptions) 9 be lodged only after five years of residence on the territory. A person asking for the long-term resident status must therefore also submit the documents necessary for the request of the permanent residence permit (inter alia the document certifying the accommodation etc.) or certify that he/she already holds the permanent residence permit (and it means that he/she already submitted these documents before). To get the long term resident status a person must: fulfil the condition of permanent residence permit, reside on the territory continuously for five years, not seriously endanger the public policy or endanger the public security of CR or another member state, provide evidence that he/she has the stable and regular resources for the stay on the territory of the Czech Republic.. The condition of permanent residence permit can be fulfilled either before or with the submission of the application for the long term resident status. To get the permanent residence permit a person must submit (Sec. 70 par. 2 Aliens Act): - photographs - travel document, - document certifying the reason of stay (e.g. the continuity of the stay which is in fact ascertained by the Police itself), - evidence that he/she has the stable and regular resources, - extract from the judicial records of Czech Republic, his/her country of origin and all the states where the third country national stayed for more than 6 months in last 3 years (this does not apply to a child under 15), - document certifying accommodation, - document certifying the knowledge of the Czech language, (- a parent approval in cases of an application of a minor). The exception from the requirements of the Directive is the sickness insurance. It is not required because the holder of the permanent residence permit becomes immediately after issue of the residence permit beneficiary of the public health insurance (and the health 8 The permanent resident permit had been introduced into the Czech legal system in 2000 by the new Aliens Act. It was created as a residence permit, which gave the third country national the highest possible legal status, the permanent residence permit could have been only replaced by the Czech citizenship. Those third country nationals who were given the permanent residence permit were given almost all possible rights except for the active electorship. The permanent residence permit had been issued after 10 years of continuous stay, before this were only certain types of visas or long term residence permits issued. The long-term resident status became part of this long-lasting system of residence permits. The long-term resident status had been added to the existing structure and became part of the permanent residence permit institute. 9 A third country national may also apply for the permanent residence permit earlier than after five years of stay, inter alia for humanitarian reasons. 191

24 insurance is a condition for the residence statuses issued before the issue of the permanent residence permit and the permanent residence permit is a condition for granting of the long term resident status. There is always a legal request to possess the sickness insurance.). This above mentioned duality motivated by the endeavour to retain the current system of visas and residence permits rather complicates the migration legislation. Even if the law tries to satisfy all the condition of the Directive the duality may lead to a (unintentional) situation, that - not all the conditions of the respective Directive will be satisfied, - there will not be an equal treatment with all the third country nationals as the situations when they may ask for the long-term resident status may differ. This may be the case of the situation when a third country national already holding the permanent residence permit (e.g. for humanitarian reasons) apply for the long-term resident status. In this case is the application for the long-term resident status lodged separately, - the legal constructions which is necessary to find out in order to find the provisions satisfying the provisions of the respective Directive can be a bit complex. Q. 6.B. Article 4(2) - Has the special rule on students in Article 4(2) been transposed in the national law? If yes, how? Yes. Only half of the periods of the stay for the study purposes or vocational training is taken into account in the calculation of the period according to the Art. 4 (1) (Sec. 83 par. 1 in conjunction with Sec. 68 par. 2 ALA). - Are periods of lawful residence in situations covered by letters b, c and d taken into account if the third country national has a non-protection status at the time of application for the long-term resident status? Yes. The periods of lawful residence in situations covered by letters b), c) and d) of the Directive is taken into account if the third country national has a non-protection status at the time of application for the long-term resident status. - How long can the absences from the territory be and how are they calculated? There can be temporary absences from the territory as they are mentioned in Art. 3 of the Directive. The absences are taken into account if they did not exceed six consecutive months (i.e. were shorter than six consecutive months) and did not exceed in total 10 months within the five years period (Sec. 83 par. 1 in conjunction with Sec. 68 par. 3 Aliens Act). The law also stipulates that for the purposes of calculating the period according to the Directive the absence from the territory which did not exceed in total 12 consecutive months will be taken into account if the third country national had been posted in another state for this period (Sec. 83 par. 1 in conjunction with Sec. 68 par. 3 Aliens Act). 192

25 Continuity of the stay will also be retained if the third country national had one absence of a maximum of 12 consecutive months for important reasons, especially pregnancy and childbirth, serious illness, study or vocational training, but the absence is not taken into account for the purposes of calculating the period according to the Directive (the continual stay of five years) (Sec. 83 par. 1 in conjunction with Sec. 68 par. 3 Aliens Act). Q. 6.C. Article 4(3) - How are the specific and exceptional circumstances specified in the national law? The law stipulates that the continuity of the stay will also be retained if the third country national had one absence of a maximum of 12 consecutive months for important reasons, especially pregnancy and childbirth, serious illness, study or vocational training, but the absence is not taken into account for the purposes of calculating the period according to the Directive (the continual stay of five years) (Sec. 83 par. 1 in conjunction with Sec. 68 par. 3 Aliens Act). Q. 7.A. (income requirement) Article 5(1)(a) - How is the income requirement of this provision specified in the national law? The income requirement is derived from a subsistence minimum (Sec. 83 par. 1 in conjunction with Sec. 71 par. 1 Aliens Act). The total monthly income of a third country national and other persons who are taken into account must not be lower than the amount of total sum of subsistence minimums of a third country national and those other persons. So the person must submit a document certifying that he/she has certain incomes which - when counted together with the incomes of the spouse (of course when he/she has any on the territory) - will not be lower than the amount of total sum of subsistence minimums for the family. It is the family incomes which count, although all the family members must fulfil the criteria themselves (all of them must submit the document confirming the financial means). There is an Act on Subsistence Minimum, which defines the subsistence minimum, the amount differs according to the number of persons who are taken into account (basically those living in the common household) and according to the age of the persons who are taken into account (children/adults etc.). E.g. monthly subsitence minimum of a single person is CZK ( EUR, the equivalent in Euros in calculated on the basis of the Rate of Exchange published in the Official Journal on 3rd August 2007, No. 2007/C 182/07), subsistence minimum of two persons and two children (one 8 years old, and the other 16 years old and dependant) is = CZK ( EUR, the equivalent in Euros in calculated on the basis of the Rate of Exchange published in the Official Journal on 3rd August 2007, No. 2007/C 182/07). The third country national is obliged to prove that he/she is able to expend the above mentioned sum of money. It can be proved e.g. by the employment contract and the salary cheques. 193

26 - Have certain types of income been excluded? YES x If yes, please specify. - Is the level of resources higher or lower than the level of social assistance for nationals? There is an Act on Subsistence Minimum, which defines the subsistence minimum. The social assistance is derived from the subsistence minimum. The level of resources required from the third country national is higher than the subsistence minimum stipulated. - Are contributions to the pension system and the tax record of the applicant taken into account? YES x If yes, please specify how they are taken into account and what the consequences of insufficient contributions to the pension system or the tax record are. Q. 7.B. (integration conditions) Article 5(2) - Does the national law require third country nationals to comply with integration conditions to obtain the status? If yes, how is this condition specified in the national law? The law requires the knowledge of Czech language (Sec. 70 par. 2 lett. h) Aliens Act). The knowledge of the Czech language will be certified by a certificate issued by a school which is listed on the list issued by the Ministry of Education, Youth and Sports. The fulfilment of integration conditions is however required to obtain the permanent residence permit, not the long term resident status as such. But (as explained above) as the long term resident status will only be granted only to a person with a permanent residence permit, the knowledge of the Czech language can also be counted as a condition which will have to be satisfied in most cases in order to obtain the long term residence status. The law provides for several exceptions. The knowledge of the Czech language will not be required if the third country national: - is younger than 15 years, 194

27 - studied on the primary or secondary school with the Czech language as working language in previous 20 years, - reached 60 years, - is handicapped, - asks the permanent residence permit inter alia for humanitarian reasons or in cases deserving special consideration or if the applicants stay. - Are integration facilities made available for third country nationals in order to comply with the integration conditions? YES x If yes, who pays the costs of these facilities? Q. 7.C. (family members) Article 5 - Are dependent family members required to fulfil all three conditions of Article 5 themselves? The law does not differ between the family members and the sponsor, any person who apply for the long-term resident status must fulfil the criteria given by the law. Note that the long term resident status will be granted only to a holder of the national permanent residence permit. The application for the long term resident status is submitted either together with the application for the permanent residence permit or after the issue of the permanent residence permit. A person asking for the long-term resident status must therefore also submit the documents necessary for the request of the permanent residence permit (inter alia the document certifying the accommodation etc.) or certify that he/she already holds the permanent residence permit (and it means that he/she already submitted these documents before). Basically the dependent family members are required to fulfil all the three conditions of Article 5 themselves (Sec. 83 par. 1 Aliens Act). The exception from the requirements of the Directive is the sickness insurance. It is not required because the holder of the permanent residence permit becomes immediately after issue of the residence permit beneficiary of the public health insurance (and the health insurance is a condition for the residence statuses issued before the issue of the permanent residence permit and the permanent residence permit is a condition for granting of the long term resident status). To get the long term resident status, the dependent family member must: fulfil the condition of permanent residence permit, reside on the territory continuously for five years, 195

28 not seriously endanger the public policy or endanger the public security of CR or another member state, provide evidence that he/she has the stable and regular resources. The condition of permanent residence permit can be fulfilled either before or with the submission of the application for the long term resident status. To get the permanent residence permit any person must fulfil several (see above in Q.6.A) mentioned conditions, which also contain the condition of integration measures. - Is there a minimum age for the issue of the long-term resident status in the national law? YES x If yes, what is the minimum age? The Aliens Act does not explicitly mention the minimum age, but as there is the condition of legal and continuous stay for five years given for granting of the long term residence status, it can be said, that the condition is five years. Q. 8.A. (public policy exception) Article 6(1) - How is the possibility to refuse to grant the status on grounds of public policy or public security specified in the national legislation? The law stipulates that third country national will not be granted the long-term resident status if he/she endangers public security of the Czech Republic or of other Member state or if he seriously violated public policy. Similar conditions are stipulated for the issue of the permanent residence permit (Sec. 75 par. 2 lett. e), f) Aliens Act). The decision on the refusal of the permanent residence permit must not be issued if it has inadequate impact to a private or family life of the person concerned (Sec. 75 par. 2 Aliens Act). If the permanent residence permit is issued together with the long-term resident status then the inadequate impact to a private or family life of the person concerned is taken into account. There may be a different treatment of those third country nationals, who apply for the longterm resident status later i.e. those who already hold the permanent residence permit. In this case the inadequate impact to a private or family life of the person concerned is not taken into account as it is taken into account only with the decision on permanent residence permit. There are also other reasons for which the application for the permanent residence permit will be refused. The reasons are inter alia the reason of submitting of falsified or modified documents, the reason of non-attendance of interrogation, which the authorities may want to have because of a possible marriage of convenience etc. The term public policy or public security is not specified in the migration legislative. The definition of the term public policy can be find in the Act on Private and Procedural International Law (Sec. 36), the respective Act considers the issue of public policy to cover 196

29 the most fundamental principles of the social structure and of the state. The practice of the authorities is reported (by NGOs) to be not satisfactory with the definition and also some of the decisions of lower courts do not meet it. There is also a circular of Aliens Police which defines the terms mainly in order to unify the approach of local alien s police departments, but it is not publicly available. The national legislation does not meet all the criteria given by the Art. 6 (1) of the Directive as it does not explicitly provide for consideration of the severity of the type of offence against public policy or public security, or the danger that emanates from the person concerned etc. The terms public policy and public security are not definied in the law, although some judicial decision of lower courts can be found and give some guide. The terms public policy and public security are an abstract concept of law, and it can be questioned if it is enough when evaluating the Directive on long term residents (which gives precise obligations to the state). The absence of the definition of the terms public policy and public security may lead to unjustified differences in the decision-making of relevant authorities in practice when applying the respective Directive, which nevertheless may be challenged before courts and it is more a question of practical implementation. - Does this specification take into account the case law of the ECJ with regard to similar terms in the EC law on free movement of Union citizens? YES x If yes, please specify. If no, what are the main differences with the case law of the ECJ? The main difference can be found in the broader conception of the terms in the national law and in the practice of the national authorities. But note the term public policy and public security has been transposed to the law as such (explicitly), and the problem may appear mainly because there are other reasons besides these two (public security or public policy) mentioned in the law which may be interpreted by the authorities as the reasons which fall into the scope of public security or public policy (and this position is in fact not right or it may at least be argued both ways). - Has the obligation to take into account the elements mentioned in the second sentence been codified in the national law? YES If yes, how? Note that the long term resident status will be granted only to a holder of the permanent residence permit. The application for the long term resident status is submitted either together with the application for the permanent residence permit or after the issuance of the permanent residence permit. 197