(Liza Schuster, Sergio Briguglio 5/12/01)
OBSERVATIONS ON THE
PROPOSAL FOR A
on the conditions of entry and residence of third-country nationals for the purpose of paid employment and self-employed economic activities
1. The draft of the proposal is satisfactory with regard to the employment of highly qualified labour. However, for less or unqualified labour, the Italian experience has demonstrated that, in fact, direct contact between workers and employers is necessary before employment is offered and accepted. The possibility of such contact (for example, with reference to the Italian case, through sponsored or ‘auto-sponsored entry for the purposes of seeking employment) is not excluded, since the proposal allows those legally present in the territory of a member State to apply for a labour residence permit. This point is indeed adequately considered in the explanatory memorandum (comments on Art. 5.2), which makes explicit reference to legal presence for the purposes of tourism or the search for employment. However, given the importance of this issue, it needs to be explicitly dealt with in the body of the Directive itself. Moreover, in order not to render this provision invalid, it is necessary to make sure, in contrast to what is stated in the same comment, that while a request for a labour permit is being considered, the legally present alien is allowed to remain in the territory of the member State.
2. The preference given to citizens of the EU seeking access to the labour market is acceptable in principle. However, it is not acceptable to leave out of consideration a fundamental element of any working relationship, which is the trust between employer and employee: an employer cannot be compelled to give employment to an individual merely because of his/her ranking in a list of job seekers or because s/he responds to a formal publication of the job vacancy.
3. The fixed periods for the “assessment of the domestic labour market situation”, and especially, for granting, refusing or renewing a residence permit - worker (or a residence permit - self-employed person) appears irrationally long and completely unsuited to the exigencies and demands of the labour market.
In general, however, it should be explicitly stated that the rights of the workers whose requests for a renewal of a permit are outstanding remain unchanged until such time as they receive a definitive rejection of their claim (including, that is, the necessary time for a decision on eventual appeals).
4. The Italian experience shows that the provision of small services plays an important role in the insertion of migrants into the labour market. Owing to the insecure and unpredictable nature of the demand for such services, this activity tends to be undertaken independently: it is unrealistic to assume that a worker will have a confirmed employment contract for the provision of such services. It would seem better to treat this “small-scale” activity as self-employment and the foreign worker as a service provider. Where the proposal appears to take adequate cognisance of the conditions of highly skilled self-employed persons or financially-secure entrepreneurs, it does not in relation to small-scale operators. In fact, it is almost impossible for these workers to meet the criteria specified, such as producing a detailed business plan, furnishing detailed information on the developments of the proposed activity, notifying the authorities of any changes in the activity, never mind being able to prove the positive impact of his activity on employment and development in the member State. It would be more appropriate to rescind the imposition of such conditions for small-scale operations, especially in consideration of the fact that the proposal establishes as a criteria for the revocation of a permit of residence prolonged dependence on public assistance. This represents a sufficient instrument for avoiding any prolongation of wholly unproductive self-employment or small-scale businesses.
5. Equally neglected by the proposal are intermediate cases, that fall somewhere between paid employees and self-employed, such as foreign members of existing Cooperatives (whereas provisions relating to such cases already exist in Italian law). Consistent with the principle of “competing for successful models”, such intermediate cases should be included as examples of alternatives to the economic needs test (or to the beneficial effects test) – with entry conditional on the economic strength of the Cooperative.
6. Where there is a requirement that those wishing to enter to engage in self-employment prove the validity of their qualifications and join the relevant professional bodies, there is a need for the insertion of a clause permitting the individual to obtain such proof or fulfill the necessary conditions prior to entry (that is, a lifting of residency requirements). An alternative could be to permit residence until such time as the necessary conditions have been met. This avoids the situation in which someone cannot enter because their qualifications have not been recognised, but their qualifications cannot be recognised because they are not resident.
7. The limited possibilities during the first three years for altering the activities or the region for which the permit of residence was originally granted as well as the shift (without prior authorisation) from working as an employee to working as a self-employed person or vice versa, does not promote the optimal use or allocation of resources. Paradoxically, such restrictive provisions are flanked by proposed exemptions from all subsequent verifications of the economic needs test during the validity of the residence permit. If, in fact, the goal is to make sure that the foreigner is not engaged in “useless” work or is not in competition with other workers already present, then is would be sufficient and more coherent to maintain the test when considering an application for a variation to the activity.
8. The prerequisites for the renewal and the maintenance of residence permit - worker (- self-employed person) are too rigid because of the excessive weight they give to the possession of a current employment contract – when considering an application for renewal – and to periods of unemployment – when revoking a permit. The Italian experience shows that an excessively fiscal approach serves only to produce formal illegality, against which sanctions are oppressive, expensive and useless. Moreover, it should be noted that such a penalisation of unemployment
a) risks undermining the declared objective of the proposal, that of defining “a pathway leading eventually to a more permanent status for those who wish to stay”;
b) works against the principle of a flexible framework responsive to demographic changes and needs (which obviously creates demands that are different from those of achieving full employment);
c) damages the country of origin (in terms of greater unemployment and lesser remittances), in contrast to the objective, declared in the recent Communication of the Commission on an open method of coordination for the community immigration policy, of maximising the positive impact of migration as a factor for development for that country;
d) is unacceptable, in so far as it ties the right to residence too closely to the maintenance of an employment contract, depriving the worker of an important part of his/her own contractual power (in sharp contrast to the equalisation of foreign and national workers around the enjoyment of rights in matters relating to the unions). This too works against the optimal allocation of resources. Moreover, the migrant worker is forced to devote all of his/her energies to maintaining his/her right of residence, with the result that plans for social insertion become increasingly irrelevant to him/her.
It would be better to substitute the criteria for the revocation of a residence permit - worker with those specified in the case of the residence permit - self-employed person (prolonged recourse to public assistence). In this way, it would be possible to avoid the pointless penalisation of workers with contracts characterised by short duration but high remuneration, and workers capable of developing a positive form of mutual support (for example, within their own national communities).
Moreover, if no one else, at least the worker who is made redundant should be allowed to find and to accept employment that may be different from that for which a residence permit - worker was originally issued (including self-emploment or membership of a Cooperative) or in a different region.
9. Even if it were acceptable, in principle, to tie residence permits to the availability of an income not less than that which would trigger access to social assistance, a broader range of evidence to demonstrate such availability should be permitted: a savings account, income that has grown through the period of employment, actual or potential income, the guarantee of a third party, etc. Such provisions, in particular, offering partial positive relief to those employed in the shadow economy (in line with, among other observations contained in the recent Communication of the Commission on a community immigration policy), would acknowledge the income-generating activity of such workers until such time as the State can effectively combat this form of exploitation. Furthermore, it would recognise the value of insecure or precarious activities, which are in any case not insignificant economically from the perspective of the member State.
10. Each employee should be allowed a period of time after losing employment (either because the employment finished or because the employee resigned or s/he was fired or made redundant) to find an alternative position. This point is relevant above all for those whose fixed term contracts expire (according to the current proposal the expiration of such a contract would coincide with the expiration of the residence permit – worker) and those who are made redundant or who resign close to the expiry date of the permit of residence. In both of these circumstances, the employee would lose his/her right to stay not because of prolonged unemployment, but because of the natural expiration of the residence permit: s/he would be heavily penalised in spite of the fact that s/he may have been fully employed for the entire period of residency.
11. People holding different residence permits (e.g., for study or family reasons) may convert their permits to a residence permit – worker. However, this carries with it the risk that that the permit holder may become subject to more restrictive conditions when, for example renewing the permit. In this way, a student-worker or family member engaged in temporary or insecure labour may find themselves in a less stable position, without any real advantage to any party.
This point, then, is further aggravated for students by the absence of any provision guaranteeing people holding a residence permit – worker (– self-employed person) the right to pursue a course of study: the conversion of a residence permit for the purpose of study into a residence permit – worker (– self-employed person) would not allow the worker to continue with his/her studies.