Steve Peers
The economies of the EU’s Member
States, like other advanced developing countries, increasingly need
highly-skilled workforces. But since the EU’s current laws have only had a
modest impact on attracting more students and researchers to the EU, the
Commission proposed an overhaul of the legislation concerned in 2013. The
European Parliament (EP) and the Council have each now agreed their position on the proposed new law (see here and here), and
will soon start negotiations on a final text. This is a good time to examine what
the new law should include, if the EU genuinely wants to increase the numbers
of researchers and students coming from third States.
Background
The existing legislation on this
issue is the researchers’ Directive, adopted in 2005, and the students’ Directive, adopted in 2004. The latter 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 Commission issued reports (see here and here)
on the two Directives in 2011, concluding that they had not done much to
accomplish their objective (there were only 7000 researchers admitted in 2010) and
probably needed to be reformed – hence the 2013 proposal. The CJEU has ruled
twice on the interpretation of the students’ Directive, first of all ruling in Sommer that Member States could
not apply a labour-market preference test for students, and secondly ruling in
the Ben Alaya case (discussed here)
that Member States must admit students who comply with the rules on admission
in the students’ 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.
The proposed new law
The Commission proposal would merge the students’ and researchers’ Directives, making
major changes to them both. In order to attract more researchers and students
to EU territory, there would be stronger rules on their equal treatment and
their movement (‘mobility’) between Member States for the purpose of their
studies and research; those rules would also be extended to paid trainees. They
would be able to stay after their research or study for a period of 12 months
to look for work or self-employment, 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. Students would be able
to work for 20 hours a week (the current rules provide for 10 hours), and the
option to ban students from working during their first year of studies would be
dropped.
Also, the proposal would replace
the weak rules on family reunion in the current researchers’ Directive with a
fully-fledged right to family reunion, which would moreover waive some of the
restrictions in the EU’s Directive on family reunion for third-country
citizens. In particular, researchers could obtain family reunion without a minimum
waiting period, and would not have to show that they have a reasonable prospect
of permanent residence. Integration requirements for family members could only
be applied after entry, and there would be a shorter deadline to process
applications. Family members would have a longer period of authorised stay, and
no wait before they could access the labour market.
The 2013 proposal would also introduce
a 60-day deadline to decide on applications for admission, shortened to 30 days
for those benefiting from EU mobility programmes. (The current laws have no
deadlines to decide on applications at all).
Finally, the proposal would require
Member States to apply the rules relating to school pupils, unpaid trainees and
volunteers, and would furthermore add rules on two new groups of migrants: au
pairs and paid trainees. It would also 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 European Parliament and Council positions
On some key points, the EP and the
Council are going in quite different directions. The EP wants to oblige Member
States to consider in-country applications for researchers, while the Council (like
the Commission) wants to retain the existing rules, which give Member States an
option to allow this. In the EP’s view, the equal treatment rules should be
strengthened, but the Council wants to weaken them. The EP wants to extend
former students’ and researchers’ stay to look for work from 12 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 wants
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 EP agrees with the extension of students’ employment rights,
while the Council wants to revert to the current 10-hour a week limit, and
introduce a possible labour-market preference test (overturning Sommer).
As regards family reunion, the EP
wants to extend the Commission’s proposal to family members of students as well,
while the Council wants to limit the rules to researchers, without requiring
Member States to give researchers’ family members immediate access to
employment. Similarly, the EP believes that the new mobility rules should be
extended to cover unpaid trainees and volunteers as well, while the Council wants
to limit them to researchers and students (as at present), and to add very
complicated details to the proposal on this issue. The EP supports an even
shorter period to decide on applications (30 days), while the Council wants to
raise the time limit to 90 days.
Finally, the EP agrees with the
Commission proposal to extend the Directive to further categories of migrants
and to make all of the rules binding, while the Council rejects both
suggestions.
On a few points, the EP and
Council are going in the same direction. Both institutions want Member States
to have a greater possibility to apply more favourable rules for the persons
concerned. The Council wants to go further still, and provide expressly that
Member States can have rules on admission of other categories of students or researchers.
Also, both the EP and the Council agree that
the current rules on delegating decision-making to research institutions or
universities should remain, and that many of the rules on whether to refuse entry
or withdraw or refuse to renew the right to stay should be optional, not
mandatory (as the Commission proposes).
Comments
The EP’s and Council’s positions
should be examined in light of the Commission’s impact assessment report
for the proposed Directive, which makes detailed arguments for the amendments
which the Commission proposed. This report provides evidence that a job-search
period after the end of research or studies is a factor in attracting students
or researchers, although presumably the Council’s less generous version of the
rules on this issue would be less attractive in practice than the EP’s version.
There is also evidence that migrants are attracted by further employment rights
for students and for researchers’ family members: here the EP and Commission
are seeking to amend the rules to this effect, but the Council is not.
Would-be migrants are also
deterred by the great variety of national rules and the rules on mobility
between Member States. On this point,
the Commission and EP position would certainly address this concern, by
significantly reducing Member States’ options to have divergent national laws
and providing for a relatively simple extension of a stronger version of the
current mobility rules. The Council, for its part, would leave more national
divergence in place, and amend the mobility rules in a fiendishly complicated
way. Normally, I’m a big fan of the fiddly details of EU immigration law, but
this is far too much of a good thing.
What should the priorities be for
the forthcoming negotiations? The evidence clearly shows that the EU’s ailing
economy would benefit most from more students and researchers, and less so as
regards the other categories of migrants. And given the huge resistance of
Member States to extending binding rules to the other categories of migrants,
this would be difficult to agree, if it’s possible at all. So the EP should
trade off one set of amendments against the other.
In particular, it should drop its
insistence that binding rules should govern all aspects of the admission and
stay of school pupils, trainees, au pairs and volunteers. Instead, it could
seek a reasonable compromise, aiming to harmonise only certain aspects where
there is a stronger case for common rules. The impact assessment report makes
such a stronger case on two issues: where EU programmes aim to facilitate admission,
and as regards the exploitation of au pairs and trainees (which also amounts to
unfair competition as regards the domestic workforce).
So the future Directive could
have binding rules as regards migrants who enter on the basis of an EU
programme, but leave Member States discretion as regards these groups of
migrants otherwise. And it could apply binding rules as regards equal treatment
and transparency to those at risk of exploitation, leaving Member States the
option to apply the other rules in the Directive to such groups. The objective
of harmonisation could be preserved for the longer term, by means of a
standstill clause, obliging Member States which currently apply EU law to these
groups to keep doing so, while giving other Member States a renewable
derogation. But if it is not possible to agree any binding rules on any aspect
of the immigration of these groups of migrants, it would be better to drop them
from the text of the Directive altogether, since the EU should avoid pointless
legislation.
In return for not insisting on
binding rules governing all aspects of the migration of other categories, the
EP should demand improvements in the Council’s position on students and
researchers, focussing on the changes that are most likely to attract them to
the EU: better job-search rules, more employment prospects for students and
researchers’ family members, less complex rules on mobility, and speedier
decision-making. Requiring all Member States to permit in-country applications
for researchers would surely help too. And since the EU also needs to attract
researchers who fall outside the scope of the planned rules (because they don’t
have a formal agreement with a research institution), the institutions could
agree a political commitment to address this issue as part of the forthcoming
revision of the EU’s Blue Card Directive, which concerns the admission of
highly-skilled workers (on the reform of that Directive, see here). That
review could also address what happens at the end of the job-search process for
former students and researchers.
Speaking of the Blue Card Directive,
it may also be useful to consider whether researchers and students might be
more attracted to the EU if there were a similarly emblematic form of residence
permit for them: an ‘EU Student Card’ and an ‘EU Researcher Card’, for
instance. (I wouldn’t suggest using other colours for this purpose, since the existence
of an ‘EU Red Card’ and an ‘EU Yellow Card’ would confuse football fans no
end). While this might focus greater attention on the EU as a possible
destination for researchers, marketing should not, of course, come at the
expense of the substance of the rules concerned. The EU has an opportunity to develop its immigration
regime in the near future to ensure that the people it wants to attract here
actually decide to come. It would be foolish to miss this opportunity again.
Photo credit: Research-in-Germany.org
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