(Elena Rozzi, Sergio Briguglio 18/2/2002)

OBSERVATIONS ON THE DISCUSSION PAPER ON THE PROPOSAL FOR A DIRECTIVE ON ENTRY AND RESIDENCE FOR STUDY AND TRAINING AND ON ENTRY AND RESIDENCE FOR OTHER PURPOSES

The two proposals that are the subject of this Discussion paper should complete the set of proposals on the conditions of entry and residence of foreign citizens in the European Union territory. An evaluation of the contents of the Discussion paper has then to take into account those of the proposals already produced by the Commission. In the present note, in particular, the aspects that connect the announced proposal for a directive on entry and residence for other purposes and the proposal for a directive on entry and residence for emploment and self-employment are examined. Further relevant issues shall be examined in future notes.

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One of the main problems related to the Proposal for a directive on the conditions of entry and residence for employment and self-employment, according to the criticisms of several different institutions, 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 his/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; even 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 the Proposal for a directive on the conditions of entry and residence for employment and self-employment is that it envisions allowing foreign workers already legally residing or legally present (in possession, for example, of a residence permit for study, a tourist visa, a job-seekers visa or a visa for applying for a work permit) in a member State to request and obtain a residence permit – worker or a residence permit - self-employed person. However, in that Proposal, such means of entry (which serve to facilitate a direct meeting between the demand and offer of employment) are not regulated. Unless modifying the Proposal by including provisions on the criteria for entry and residence specifically to seek work, the Proposal for a directive on entry and residence for other purposes should address this lacuna and, more generally, should organise the material in a manner more compatible with allowing access to a residence permit – worker/self-employed person to foreigners legally present or resident for other purposes in the territory of the member State.

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 resulting from residence or legal presence for other purposes. These considerations may then be relevant both for the definition of a proposal on entry and residence for other purposes and a revision of the Proposal on entry and residence for employment and self-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

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 a persistent unmet 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, it should be possible for the member State to permit the entry of a definite quota of workers who, rather than 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 indeed 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 could then direct the workers who enter in this way by guaranteeing support and assistance only within the relevant regions, without resorting to questionable restrictive measures.

3) The imposition of a numerical ceiling on persons entering to seek employment represents, generally speaking, undue State interference in labour market dynamics. Moreover, this policy/strategy is unable to respond adequately to the rapid variability of economic needs. Such a ceiling could then be justified only on the basis of the difficulties the host society would face in receiving a larger number of persons – such as difficulties relating to accommodation, the necessity of granting forms of public assistance to employment seekers (as in the case considered in para. 2) or more profoundly, social tensions caused by too large flows.

The aim of protecting the unemployed resident workers from competition with foreign employment seekers should instead be pursued through 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 and self-employment (that is, the ascertainment of a shortage of available and suitable skilled indigenous labour).

4) The duration of a suitable job-seeker permit should be determined on the basis of the proven availability of economic means to cover living expenses. In cases in which forms of public assistance are provided (cf. para. 2), the duration could be six months. The permit holder should then be normally allowed to renew this permit if it can be shown that the criteria for obtaining the permit still pertain.

5) According to the provisions of the Proposal for a directive on entry and residence for employment and self-employment, the holder of a job-seeker permit could request and obtain a residence permit – worker/self-employed person as soon as s/he satisfies the requirements of such permits. However, it is vital that there is a radical modification of the regulations defined in that Proposal relating to the periods of time for the examination of requests for residence permits (Art.29); more importantly, the statement that the presentation of a request for a residence permit – worker/self-employed person 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) should be revised. It is nonsensical that that the successful conclusion of a search for employment can be nullified by the expiration of the job-seeker permit while awaiting a decision on a request for a residence permit – worker/self-employed person: 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 his/her stay until a decision is reached on the request for a residence permit – worker/self-employed person.

Moreover, limited to the cases of a request for residence permit – worker presented by the holder of a job-seeker permit (already in the territory of the member State) the “economic needs test”, defined by art. 6 of the Proposal for a directive on entry and residence for employment and self-employment, should be considered only as a tool for protecting the resident unemployed workers, not as a bureaucratic obstacle to the development of the market. Although the ascertainment of a shortage of resident labour is a necessary condition for releasing a residence permit – worker, there is no reason to compel the two parties – employee and employer – to wait for the output of such a procedure; the job should start, and, only if the result of the ascertainment showed that a suitable resident worker is available, should the contract be rescinded.

6) Although the criteria envisaged for a residence permit – worker/self-employed person in the Proposal for a directive for entry and residence for employment and self-employment are quite stringent with regard to the stability of the economical activity, it is worth allowing the holders of a job-seeker permit be engaged in occasional activities or activities of little economic impact: such activities would indeed result in a mechanism for a positive integration in the labour market as well as a legal source of further economic means, relevant for the renewal of the job-seeker permit (cf. para. 4).

7) The risk that the foreign worker may illegally prolong her/his stay beyond the expiry date of the job-seeker permit 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.

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 for other purposes in the member State (see commentary on art. 5, para. 2 of the Proposal for a directive on entry and residence for employment and self-employment). In pursuance of this aim, the regulations relating to entry and residence for brief periods (e.g. tourism, visits, business etc.) should be considered analogous to those outlined above in relation to the job-seeker permit, in particular with reference to

i) availability of sufficient economic resources

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

iii) the duration and possibility of renewing the permit

iv) access, in order to get economic resources, to occasional or low-impact activities

v) the taking, on entry, of the necessary identifying data,

vi) the possibility of waiting on the spot for the outcome of a request for a residence permit – worker/self-employed person.

It should not be necessarily ruled out, of course, that such regulations relating to entry and residence for brief periods could coexist with the institution of an entry for seeking employment. Some of the above provisions could be modified; in order not to be meaningless, however, at least the element relating to the possibility of waiting on the spot for the outcome of a request for a residence permit – worker/self-employed person should be guaranteed.

English translation by Liza Schuster