Steve Peers
For
a number of years, the EU has aimed to attract highly-skilled non-EU migrants
to its territory. However, the existing legislation on this issue – the researchers’
Directive, adopted in 2005, and the students’
Directive, adopted in 2004 – have only had a modest impact on
attracting more students and researchers to the EU, according to the Commission’s
reports (see here and here)
on the two Directives, issued in 2011.
Consequently,
the Commission proposed an overhaul of this legislation in 2013. The
European Parliament (EP) and the Council recently agreed on the text of this
proposal (for the text of the provisional version of the future Directive, see here;
the final version will be ‘tidied up’ a little legally). As you would expect, the
EP and the Council compromised between their respective positions (for those
positions, see here and here),
which I discussed in an earlier blog post.
I’ll
examine first the background and content of the new Directive, then look at how
effective it is likely to be in its objective on increasing the numbers of
researchers and students coming from third States.
Background
The
current students’ Directive also applies to the admission of school pupils on
exchange programmes, unpaid trainees and volunteers, although Member States
have an option to apply it to the latter three groups of migrants. The CJEU has
ruled twice on the interpretation of this Directive. In Sommer
it ruled that Member States could not apply a labour-market preference test for
students; in Ben Alaya case (discussed here),
it ruled that Member States must admit students who comply with the rules on
admission in the Directive. The same logically applies to the current
researchers’ Directive. The UK and Denmark opted out of both Directives, while
Ireland opted in to the researchers' Directive. All three countries have opted
out of the new law.
The new law
The
new Directive merges the students’ and researchers’ Directives, making major
changes to them both. First of all, the Commission proposed that Member States would
be obliged to apply the currently optional rules relating to school pupils,
unpaid trainees and volunteers, as well as rules on two new groups of migrants:
au pairs and paid trainees. The EP agreed with this idea, while the Council
rejected it entirely. Ultimately, the two institutions compromised: the new
Directive will have binding rules on (paid and unpaid) trainees and some
volunteers (those participating in the EU’s European Voluntary Service), although
stricter conditions will apply to the admission of trainees (more on that
below). However, the rules on other volunteers and school pupils will remain optional,
along with the new rules on au pairs.
Next,
the Commission proposed to limit Member States’ current power to apply more
favourable rules for students and researchers, confining that power to only a
few provisions relating to the rights of migrants, while fully harmonising the
rules on admission. The final Directive accepts the basic principle that the
power to set more favourable standards should be more limited that at present,
but imposes fewer such constraints than the Commission wanted. Member States will
be allowed to apply more favourable rules for the persons concerned as regards
the time limits on their residence permits. Many of the conditions relating to
admission and withdrawal or non-renewal of the right to stay will be optional,
not mandatory (as the Commission had proposed), and the Council insisted on
many additional options being added. A clause in the preamble sets out the Council’s
wish to provide expressly that Member States can have rules on admission of other categories of students or
researchers.
Against
the Commission’s wishes, the final Directive provides that the current rules on
delegating decision-making to research institutions or universities will remain.
Furthermore, it adds that Member States can optionally delegate such powers as
regards volunteers or trainees as well.
Trainees
are defined (more restrictively than the current law) as those who have
recently completed a degree (within the last two years), or who are currently undertaking
one. Their time on the territory is limited to six months, although this can be
longer if the traineeship is longer, and the authorisation can be renewed once.
But Member States retain the power to set more favourable standards as regards
these time limits.
One
striking feature of the agreed Directive is a new right for students and
researchers to stay after their research or study to look for work or
self-employment. The EU institutions agreed on the principle of this right, but
disagreed on the details. According to the Commission, the right should apply for
a period of 12 months, although after 3 months Member States could check on the
genuineness of this search, and after 6 months they could ask the migrant to
prove that they have real prospects. The EP wanted to extend the period to 18
months, and to make Member States wait longer to check on the genuineness of
the job search or likelihood of employment. On the other hand, the Council wanted
several restrictions: to reduce the stay to 6 months; to allow Member States to
limit students’ possibility to stay to those who have at least a Master’s
degree; to check on the likelihood of employment after 3 months; and to give
Member States an option to limit the job search to the areas of the migrant’s
expertise. The final deal splits the difference on the period of extra stay (it
will be 9 months), and accepts the various optional limits on the right which
the Council wanted.
Lees verder op het weblog van Steve Peers self / continue your reading here please: http://eulawanalysis.blogspot.be/2015/11/the-new-directive-on-immigration-of.html
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