SOC/084
Conditions of
entry and residence of third-country nationals
Brussels,
16 January 2002
OPINION
of the
Economic and Social
Committee
on the
Proposal for a
Council Directive on the conditions of entry and residence
of third-country
nationals for the purpose of paid employment
and
self-employed economic activities
COM(2001) 386 final
- 2001/0154 (CNS)
On
21 September 2001 the Council decided to consult the Economic and Social Committee, under Article 262 of
the Treaty establishing the European Community, on the
Proposal for a Council Directive on the conditions of entry and
residence of third-country nationals for the purpose of paid employment and
self-employed economic activities
(COM(2001) 386 final - 2001/0154(CNS)).
The
Section for Employment, Social Affairs and Citizenship, which was responsible
for preparing the Committee's work on the subject, adopted its opinion on 19
December 2001. The rapporteur was Mr Pariza Castaños.
At
its 387th plenary session (meeting of 16 January 2002) the Economic and Social
Committee adopted the following opinion with 93 votes in favour and two
abstentions:
1.
Introduction
1.1
The
proposal for a Directive responds to the need to regulate a very important
aspect of Community immigration policy, i.e. the entry and residence of
third-country nationals for the purpose of paid employment or self-employed
economic activities in a Member State.
1.2
According
to the Commission Communication on a Community immigration policy,
the lack of proper legal channels for labour migration is one of the reasons
why such immigrants enter illegally.
The Communication also points out that the European Union's demographic and
economic needs call for a more open immigration policy
and, as a consequence, more accessible legal entry channels for workers.
1.3
Existing
conditions of entry in the Member States are so restrictive that it is very
difficult for migrants to enter legally. Most third-country nationals therefore
enter illegally, even though they make a significant contribution to the
European economy.
1.4
According
to the Commission Communication, the European Union must recognise the positive
contribution of immigrant labour and accept that immigration is likely to
increase in the future. Significant changes to immigration legislation are
needed in order to make it easier for immigrants to enter legally. The proposed
Directive should respond to this need for new legislation.
2.
Gist of
the proposed Directive
2.1
The
Directive regulates, in two separate chapters, the entry and residence of
third-country nationals for the purpose of paid employment or self-employed
economic activities.
2.2
In
order to work as an employed person, third-country nationals - or their future
employer on their behalf - must apply for a “residence permit –
worker”. This application must be submitted via the representation of the
Member State in which the applicant is resident, or in the territory of the
Member State concerned, if the applicant is already legally present there.
2.3
The
application must be accompanied by various documents, such as the offer of work
and proof that this job vacancy cannot be filled on the labour market of the
Member State concerned. The applicant must also submit documents proving the
necessary skills, evidence of having sufficient resources, a certificate of
good conduct (if required by the Member State), sickness insurance, etc.
2.4
The
requirement of proof that a job vacancy cannot be filled in a Member State is
deemed to be fulfilled if the vacancy has been made public for four weeks via
employment services (including Community employment services, i.e. EURES) and
has not been filled by persons with priority in employment, i.e. citizens of
the Union and third-country nationals who meet the criteria laid down in the
Directive.
2.5
Each
Member State may define specific sectors which suffer from an ongoing labour
shortage. Employers in these sectors will not have to make vacancies public,
but will be able to contract third-country nationals directly.
2.6
Initial
permits are temporary (maximum of three years) and renewable. Applications for
renewal are subject to the same requirements as initial applications. During
the first three years of residence, renewals are subject to the criteria
concerning Community preference in employment.
2.7
A
permit may be revoked if the holder has been unemployed for a period exceeding
three months within a 12-month period, during the first two years of residence,
and six months after the first two years.
2.8
The
Directive lays down the rights conferred on holders of a “residence
permit – worker”, but grants Member States the power to restrict
some of these rights.
2.9
The
Directive also defines other permits and the specific conditions for obtaining
such permits, i.e. “residence permit – seasonal worker”,
“permit – transfrontier worker”, “residence permit
– intra-corporate transferee”, “residence permit –
trainee” and “residence permit – youth exchange/au
pair”.
2.10
In
order to work as a self-employed person, third-country nationals must apply for
a “residence permit – self-employed person”. The application
may be submitted in their country of origin or in the territory of the Member
State concerned if the applicant is legally present there. Applicants must also
produce evidence of sufficient financial means to cover the minimum investment,
as well as other documents, such as a certificate of good conduct (if required
by the Member State), proof of the necessary skills, etc. Applicants must also
demonstrate that the envisaged activity will benefit employment or economic
development in the Member State concerned.
2.11
The
“residence permit – self-employed person” will be subject to
similar deadlines and similar conditions of renewal and revocation as the
“residence permit – worker”.
3. General
comments
3.1 The
proposal for a Directive must help meet the objective stated by the Commission,
i.e. to facilitate legal immigration and simplify entry and residence
procedures. However, the Committee is not convinced that the conditions of
entry proposed in the Directive are the only ones that would allow all types of
workers (skilled and unskilled) to enter legally.
3.2
According
to the proposed Directive, the only legal channel for labour migration is prior
possession of an offer of employment. While this is clearly the main channel,
it cannot be the only one. Possession of an offer of employment while still in
the country of origin may be an appropriate condition for temporary and
specialised workers (engineers, computer experts, etc.) and workers recruited by
large and medium-sized companies. However, when the person concerned works in a
field such as domestic service, child care, care of the elderly or arts and
crafts, or for a small company, it will be essential for the employee and the
migrant worker to know each other beforehand.
3.3
Immigration
legislation that aims to provide legal channels for immigration into the Member
States of the European Union must provide for two different entry channels. The
first is discussed in the Directive, i.e. entry based on possession of an offer
of employment while still in the country of origin. The second channel is to
enter a Member State temporarily in order to seek employment.
3.4
If
legislation only allows for the first channel, some workers will enter the
Union legally, but others will probably continue to enter illegally and work in
the shadow economy.
3.5
For
this reason the Committee proposes introducing a temporary six-month entry and
residence permit for the purpose of seeking work, which would be monitored by
each Member State in cooperation with the social partners. Applicants for these
permits would have to provide proof of sufficient resources and sickness
insurance. They would also have to provide information on their professional
expertise.
3.6
The
proposal for a Directive also incorporates a number of restrictive criteria
from existing immigration legislation in the Member States, e.g. the conditions
governing applications for (Article 5) and renewal of (Article 7) a residence
permit, and the possibility of revocation if the holder has been unemployed for
more than three months within a 12-month period (Article 10(3)(a)). These
aspects are discussed below.
4.
Specific
comments
4.1
Application
for a "residence permit - worker" and "residence permit -
self-employed person". Article 5(2)
4.1.1
Applications
for residence for the purpose of paid employment or self-employed economic
activities may be submitted in the territory of the Member State concerned,
providing the applicant is legally present there. This condition may, however,
prevent existing illegal immigrants from regularising their situation: only by
giving them the option of submitting their application for residence in the
Member State itself can they attain legal status. Although this Directive does
not address illegal immigration, it should remain neutral on this point so as
not to shut the door on possible national regularisation measures.
4.2
Particulars
and documents that must accompany applications for a "residence permit -
worker". Article 5(3)
4.2.1
Some
of the requirements concerning particulars and documents that must accompany
applications for a "residence permit - worker" are inappropriate. The
proof of good conduct requirement (Article 5(3)(e)) may cause applicants to
suffer arbitrariness or discrimination by the authorities in their country of
origin. Evidence of the skills necessary for the performance of the envisaged
activities (Article 5(3)(g)) should only concern the future employer, as is the
case with any other employee. The requirement of sufficient resources to
support the applicant (Article 5(3)(h)) is irrelevant if the applicant has
submitted proof of an offer of work. Neither should sickness insurance be
required, as applicants will be eligible through their employment. The
Committee believes these requirements should be reconsidered.
4.3
Application of the
proof laid down in Article 6 to renewal of permits. Article 5(4)
4.3.1
Where
job vacancies are concerned, nationals and citizens of the Union should have
priority over new applicants for residence, but not over third-country
nationals who have already been granted legal residence. This Committee
therefore suggests shortening Article 5(4) as follows: "Third-country
nationals who have been legally resident in a Member State, with a 'residence
permit-worker', shall not be required to provide evidence of fulfilment of the
requirement laid down in Article 6."
4.3.2
In
the same vein, the Directive should stipulate that a "residence permit -
worker" will always be renewed with free access to the labour market, i.e.
renewals will not be subject to the condition of Community preference in
employment. Article 7(2) must therefore be amended, as it currently states that
third-country nationals are subject to this condition during the first three
years of residence.
4.4
Renewal of the
"residence permit - worker". Article 7(1)
4.4.1
According
to Article 7(1), applicants for renewal must submit the same documentation as
applicants for an initial permit. This is highly restrictive and could lead to
many third-country nationals with legal residence falling foul of the law. This
Committee therefore believes that requirements for renewal must be simplified
as far as possible.
4.5
Restriction
of the permit to specific professional activities or fields of activities.
Article 8
4.5.1
The
restriction of the initial permit to specific professional activities or fields
of activities or to specific regions should not apply to renewals.
4.6
Revocation of the
"residence permit - worker". Article 10
4.6.1
The
Committee believes that the clause allowing a residence permit to be revoked
due to a period of unemployment exceeding three months within a 12-month
period, during the first two years, or six months after two years (Article
10.3.) should be deleted. This is a very restrictive measure which will cause
third-country nationals considerable insecurity.
4.7
Rights of holders of
a "residence permit - worker". Article 11
4.7.1
The
Committee proposes including a new paragraph in Article 11 to the effect that
the rights granted to holders of a "residence permit - worker" (as
laid down in Article 11(1)) should be supplemented by the following, insofar as
these conditions also apply to nationals:
· right to education and study grants;
· right to teach and carry out scientific
research;
· right to social assistance for access to
housing;
· right to free legal aid for people in need.
4.8
The
clause allowing Member States to restrict some of these rights
(Article 11.2.)
should be reconsidered as it could give rise to discriminatory measures.
4.9
Seasonal workers
– deposit of a security
4.9.1
The
Committee thinks that the possibility for the Member States to require
employers to deposit a security – refundable on the return of the
seasonal worker – should be reconsidered. It is not in the power of
employers to ensure that seasonal workers actually return to their home State.
4.10
Application for a
"residence permit - self-employed person". Article 18(2)
4.10.1
Applications
for a "residence permit - self-employed person" may also be submitted
in the territory of the Member State concerned, providing the applicant is
legally present there. In this instance, too, the Committee would point out
that the Directive must not shut the door on possible national regularisation
measures.
4.11
Particulars
and documents that must accompany applications for a "residence permit -
self-employed person". Article 18(3)
4.11.1
The
particulars and documents that must accompany an application for a
"residence permit - self-employed person" include proof of good
conduct (Article 18(3)(e)). The Committee believes that this requirement should
be reconsidered as it may cause applicants to suffer arbitrariness or
discrimination by the authorities in their country of origin.
4.12
Renewal of the "residence
permit - self-employed person". Article 20(1)
4.12.1
As
in the case of workers, self-employed persons wishing to renew their residence
permit during the first three years must submit the same documentation as
applicants for an initial permit. The Committee believes that renewals must be
subject to less stringent requirements than the initial application, in order
to help immigrants keep their situation legal.
4.12.2
The
initial restriction of Article 21 to specific activities or fields of
activities or to a specific region should not apply to renewals.
4.13
Revocation of "residence
permit - self-employed person". Article 23
4.13.1
A
"residence permit - self-employed person" may also be revoked due to
a period of unemployment exceeding three months within a 12-month period,
during the first two years, or six months after two years (Article 23(3)). The
Committee believes this radical measure must be reconsidered if the
self-employed person submits a new "migration plan".
4.14
Rights of holders of a
"residence permit - self-employed person"
4.14.1
In
the same way that Article 11 defines the rights of holders of a "residence
permit - worker", the rights of self-employed persons must also be
defined, taking account of the comments made in point 4.8. of this opinion.
5. Final
comments
5.1
The
Commission will shortly present a Communication on combating illegal immigration.
Although the Committee is to issue an opinion on this matter, it would
reiterate in the present opinion the comments it made on the Commission
Communication on a Community immigration policy,
viz. "The most important 'pull' factor in non-Community immigration has
been the existence of an available labour market. The most noteworthy aspect is
that a labour market specifically geared to illegal immigrants has been able to
exist". According to the Committee therefore: "Combating the black
economy, which profits from illegal immigration, requires practical legal
measures and social agreements."
5.2
The
Committee calls on the European Council, in accordance with the Laeken
conclusions, to demonstrate greater commitment and alacrity in drawing up a
genuine common asylum and immigration policy, in so doing it should support the
Commission's initiatives and take into account the ESC's opinions.
5.3
In
the Committee's view the European Union and the Member States should ratify the
International Convention on the Protection of the rights of all migrant workers
and members of their families, as approved by the UN General Assembly in 1990.
Brussels,
16 January 2002.
|
The President
of the
Economic and Social Committee
|
The Secretary-General
of the
Economic and Social Committee
|
|
Göke Frerichs
|
Patrick Venturini
|