OBSERVATIONS ON THE WORKING PAPER RELATING TO THE DIRECTIVE ON ENTRY AND RESIDENCE FOR STUDY AND TRAINING AND ON ENTRY AND RESIDENCE FOR OTHER REASONS

This working paper should be examined with reference to the Proposal for a directive on the conditions of entry and residence for employment, already presented to (by) the Commission. One of the principal problems of the Proposal is the absence of an explicit opportunity to enter and reside in order to ‘seek employment’. This issue is particularly important for the insertion of low skilled workers into the labour market. For these workers, the constitution of a labour contract cannot precede a direct meeting between employer and employee. It is unthinkable that a domestic worker, for example, could be employed in someone’s home without first meeting the employer or seeing her place of work. The idea, therefore, that a worker should wait until after signing a contract before being allowed entry to a member State appears unrealistic; the inscription of a worker resident abroad in a list of employment seekers cannot substitute for a direct meeting between the parties.

The experience of many European countries (including Italy) has shown that impeding this direct meeting serves only to produce a damaging and useless increase in the flows of unregulated migration, since the primary objective of the two parties is to enter into an employment contract. That this contract be accomplished legally is – so to speak – of only secondary importance.

A positive aspect of this Proposal for a directive is that it envisions allowing foreign workers already residing legally (in possession, for example, of a residence permit for study, a tourist visa, a visa for seeking employing or a visa while requesting a work permit) in a member State to seek and obtain a residence permit (paid employment) or a residence permit (self-employment). However, in this Proposal, such means of entry (which serve to facilitate a direct meeting between the demand and offer of employment) are not systematic. However, the Proposal for a directive on entry and residence for other motives does not include provisions on the criteria for entry and residence specifically to seek work. The Proposal should address this lacuna and, more generally, should organise the material in a manner more compatible with allowing access to residence permits for self-employment to foreigners in possession of a different residence permit.

In what follows, we offer some considerations relating to entry and residence for the purposes of seeking work and other opportunities for legal access to residence for work aside from residence permits for other reasons. The offer of these considerations assume that the implementation? of the Proposal on entry and residence for other reasons will result in a revision of the Proposal on Entry and Residence for Employment.

1) Entry to seek employment should granted to foreigners who

a) do not constitute a menace to public order or to the security of the member State (I think this should definitely go last otherwise you validate the idea of migrant as a threat!)

b) are in possession of a valid travel document

c) can prove that they are in possession of sufficient means to cover their living and accommodation costs and their eventual return to their country of origin

d) can furnish proof that they are covered by adequate health insurance

As an alternative to c) and d), offers to cover such expenses by a private individual, legally resident in the member State, or by an entity with a legal existence in the member State, should be considered positively.

2) Where there is an unmet and prolonged demand for labour in a particular sector of the labour market, and where there is an insufficient spontaneous inflow of applicants meeting the criteria specified above, the member State should be able to permit the entry of a definite quota of workers who, rather then satisfying criteria c) or d),

e) are in possession of the relevant professional qualifications.

Since the member State will prefer not to leave unmet the demand for labour, the member State should be able to offer support and assistance during the insecure period of the search for employment, to workers who have entered as part of the above-mentioned quota. Where the labour shortage is confined to specific regions, the member State should be able to direct the workers who enter in this way to specific regions by guaranteeing support and assistance only within the relevant regions.

3) aside from these specific cases, a numerical ceiling of entries for seeking employment should reflect solely the difficulties the host society would face in receiving that number of persons – such as difficulties relating to accommodation, or more profoundly, social tensions caused by inappropriate (?) flows. (Really – no considerations of historical responsibility towards former colonies, or countries where host countries are exploiting the natural (mineral etc) resources of the sending country, or where the host country is co-responsible with sending country regimes for the impoverishment or repression or sizeable minorities – why are only the interests of the receiving countries to be taken into account?)

The simple application of the criteria of ‘economic needs test’ as specified by Art. 6 of the Proposal for a Directive on Entry and Residence for Employment (that is, the ascertainment of a shortage of available and suitable skilled indigenous labour) will act as a safeguard against excessive competition leading to an increase in national unemployment, as well as in other member States and among legally resident foreigners. (I’m not sure if I have understood this properly!!)

4) The duration of the proposed residence permit (seeking employment) should be six months. The permit holder should then be able to renew this permit if it can be shown that the criteria for obtaining the permit still pertain. Such a renewal, in cases where it might be necessary to impose a ceiling on the number of entrants seeking employment, could be conditional on furnishing proof of a distinct competence in the language of one of the member States. In this way, the granting of an extension to the residence permit of a foreign worker would be favoured over the entry of a non-resident worker.

5) Holders of residence permits (seeking employment) should be able to request and obtain a residence permit (self-employed) as soon as they can satisfy the requirements of such permits. However, it is fundamental that the regulations in this Proposal relating to the periods of time for the examination of requests for residence permits (Art.29) such as the confirmation that the presentation of a request for a residence permit (paid employment) does not confer on the applicant the right to remain in the country until a decision has been reached (commentary on Art. 5, para. 2) are radically altered. It is nonsensical that that the successful conclusion of a search for employment can be nullified by the expiration of the residence permit (seeking employment) while awaiting a decision on a request for a residence permit (self-employed): on one hand, the waiting period for a decision seems unreasonably long; on the other, it should be possible to grant the foreigner worker permission to prolong her stay until a decision is reached on the request for a residence permit (self-employed).

6) Considering that insertion into the labour market (whether as a worker or a self-employed person) is by its nature progressive, it should be possible to acknowledge engagement in casual employment (which precludes the constitution of a stable employment contract, just as at the beginning of non-occasional self-employment (is this right??))

7) The risk that the foreign worker may illegally prolong her/his stay beyond the expiry date of the residence permit (seeking employment) when no employment has been found, thereby aggravating the problem of illegal migration, can be much reduced by ensuring that identifying data (e.g. fingerprints attached to photocopies of travel documents) is gathered from the foreigner on entry, making repatriation easy such it become necessary (personally – I would object to my fingerprints being taken for any reason other than because I was suspected of a crime – just as I object to the state forcing me to carry identity documents – I don’t – even in Italy ;-)).

8) If there is no desire to create an appropriate means of entry for seeking employment, then the objective of facilitating the meeting of labour demand and supply should be pursued by means of regulations that encourage the progressive insertion into the labour market (under the same conditions outlined above) and the ensuing security of residence for the migrant legally present in the member State, but in possession of a different category of permit (see art. 5, para. 2 of the proposal for a directive on entry and residence for employment). In pursuance of this aim, the two proposals contained in the working paper must include the following two principles:

a) The foreigner present for reasons other than employment (e.g. for study or training) should be able to obtain a residence permit (self-employed) if s/he can satisfy the usual conditions specified in the Proposal for a directive on entry and residence for employment – without, that is, the imposition of further obligations or restrictions -, save in the case of a course of study funded by a grant conditional on return to the country of origin on completion of the course; and in the case of a foreigner on the spot awaiting the outcome of a request for a residence permit (self-employed).

b) The regulations relating to entry and residence for brief periods (e.g. tourism, vists, business etc.) should be considered analogous to those outlined above in relation to residence permits (seeking employment) in particular with reference to

i) availability of means of support

ii) the possibility of a third party taking responsibility for such support

iii) the duration and possibility of renewing the permit

iv) access to casual employment

v) the possibility of waiting on the spot for the outcome of a request for a residence permit (self-employed).

vi) The taking, on entry, of the necessary identifying data.

The first of these principles should also be valid even if a legal entry for seeking employment is created. The second could be reorganised, guaranteeing however, among the elements listed, at least that relating to point v) (the possibility of waiting on the spot for the outcome of a request for a residence permit (self-employed)).