GRUPPO DI RIFLESSIONE

di organismi ed associazioni di ispirazione religiosa attivi nel campo delle migrazioni

ACLI

ACSE

ADRA

AGESCI

Caritas Italiana

Comunità di S. Egidio

CSER

Federazione delle Chiese Evangeliche in Italia

Fondazione Migrantes della CEI

Gruppo Martin Buber - Ebrei per la pace

Jesuit Refugee Service

UCSEI

Comments on Discussion Paper regarding the proposal for a

Directive concerning the conditions of entry and residence of third country nationals for the purpose of study or vocational training

and a

Directive concerning conditions of entry and residence of third country nationals for other purposes

Some ideas from a Southern European perspective

1) The immigration scene in Southern Europe is in certain aspects different from the situation in other EU countries:

a) this area has been in the past an area of emigration, today it is an area of immigration and transit

b) it has a double geographical role as the South of Europe and the North of the Mediterranean

c) there have always been migration flows in this area

2) Entry and residence for reasons other than possession of a work permit:

Especially in Italy, but also in other Southern EU countries, various possibilities for entering the country have been developed and experienced. When looking at the possibility of an entry visa for reasons other than work, this South European experience should be taken into consideration. To give alternative possibilities of entry to potential migrants is the most effective instrument to combat clandestine migration and trafficking in human beings. The discussion paper indicates only one alternative, which certainly is very important, but limiting the entry possibility to work, asylum and training is not enough to respond to the various needs, and to avoid abuse of entry possibilities. We list below some of these possibilities, foreseen in the Italian law, although we understand that this discussion paper deals only with one very specific issue, which we comment upon.

a) study and vocational training, foreseen here: we attach some comments from the Catholic NGO for foreign students, UCSEI, and some notes from the Servizio Rifugiati e Migranti of the Federation of Protestant Churches in Italy;

b) family reunion;

c) for religious reasons: mainly for ministers of religious communities and other special personnel. This has become an important issue in a multi-religious society, as Europe is today. The laws on entry for work purposes cannot give sufficient answers to this specific need. The freedom of religion will make it necessary to give precise rules on this issue;

d) for health reasons: there is a need for entry possibilities for health reasons, for those who are able to cover the costs, as well as for cases where humanitarian reasons must be respected;

e) Entry for employment research, an instrument, that differs from the entry for those who already have employment. The migrant gets a temporary limited entry visa (1 year) to find a job, and can convert the permit into a regular working permit, if he/she finds regular employment. The Italian law foresees this possibility and it seems today of particular interest, because migrants often go into a sector of labour which requires direct contact between employer and worker, specially in the service and caring sector. We therefore attach a special note on this issue, hoping that this important alternative can be incorporated in the EU legislation, as this would respond to the need of many employers in sectors where personal contact between employer and employee are absolutely essential.

Rome, 21.02 2002 for the Gruppo di Riflessione

Dr. Annemarie Dupré

Segreteria di coordinamento:

Via Firenze 38 - 00184 Roma - tel. 06 48905101 - fax 06 48916959 - E -mail: srm@fcei.it

Observations by UCSEI (Catholic NGO for foreign students in Italy)

on conditions of entry and stay permit for study purposes (European proposal)

The general orientation seems good.

UCSEI believes that:

1) The entry permit for study should not be subject to migrant flows.

For Italy there is not a problem of excessive numbers of foreign students in the universities; the ratio is 0.8% as against 5/8% in the other European countries. The age limit should not be taken into consideration for students from developing countries, in particular for African students who – as we know – because of wars, population movements, closure of schools and universities etc. have difficulty in completing their secondary studies by the age we consider normal (18/20 years).

The same can be said for the doctorate.

The young or not so young person can come to study in Italy, whatever their age may be, but it is clear that he/she must conform to the student “condition”.

2) The duration of studies should include at least two years more than that foreseen in the study programmes. This is necessary because it is difficult – for Italians too – to obtain a degree in the 3 or 4 years foreseen for the diploma or university degree.

3) At the end of the studies students should be given the possibility of exchanging the visa for study to a visa for work, especially if the student has a work contract which relates to the professional degree obtained in the studies.

4) Those with a Pvs diploma and degree, with a regular stay permit, should be able to work as volunteers and assistants in development projects set up with Italian and European cooperation.

5) The training of Pvs students in Italy should also be considered “cooperation”, and to this end there should be a possibility of scholarships, stages, etc. In this regard it should be remembered that Italy has almost abolished the scholarship programme (there are only 600 for a total value of 8 billion lire/4million euro.

federazione delle chiese evangeliche in italia servizio rifugiati e migranti via firenze 38, 00184 roma tel. (+39) 0648905101 - fax (+39) 0648916959 e-mail: srm@fcei.it

Comments on Discussion Paper regarding the proposal for a

Directive concerning the conditions of entry and residence of third country nationals for the purpose of study or vocational training

and a

Directive concerning conditions of entry and residence of third country nationals for other purposes

Some considerations on entry and residence for study and vocational training:

We cannot agree that this issue can be completely detached from considerations on the labour market of the hosting country. The question has to be considered in a more differentiated way.

a) First of all we must look at some of the reasons for entering for training:

- the sending country needs qualified personnel, who cannot be trained within the country

- the hosting country needs qualified labour and provides the necessary training, covering costs. This is a way to avoid brain drain, because the hosting country is not calling those already in the sending country qualified personnel.

- Individuals wish to get training, independently from the needs of the sending or hosting countries.

The different reasons require different approaches: the first is part of potential development measures.

The second is an instrument of labour market policy combined with a correct migration policy.

The third is a more individual approach.

b) linked to the reasons under 1) is the question of return:

- people who have been trained within a development context need return and re-integration programmes, to facilitate their integration into the labour market of the sending country. Although often specialised personnel is needed, there are no structures where they can be employed, or they are so badly paid that there is no interest to encourage the trained people to return. In order to allow these persons to become a bridge between the sending country and the EU, provision should be made to allow them to move without too many restrictions within the EU and also in and out of the EU countries, in order to facilitate economic links, they could build up ( see p. 3 1. italic paragraph).

- hosting EU countries need specialised and highly qualified personnel. Nowadays these countries call qualified migrants from developing countries, saving training costs, which must be covered by the sending countries, which normally are poor (brain drain, exploitation to avoid high training costs). In this case training programmes must be linked to the programming of migration flows, oriented also at the labour market. In these cases the people who have been trained cannot be sent back, but must be allowed to convert their study permit into a labour permit, as they had been called with this motivation.

c) control or tutoring ( p. 3 2.italic paragraph):

instead of introducing rigid control measures a effective tutoring system should be foreseen, to take account of the specific difficulties of foreign students, offering help to overcome these problems, such as language training, counselling, specific courses to overcome educational system differences, etc.

d) sufficient resources ( p.7/3):

as far as trainees would come within a development policy, the hosting Governments should foresee a generous scholarship programme (Italy has reduced this possibility dramatically over recent years).

As far as training of migrants will serve the need of the EU country labour market, costs must be covered by the hosting country, which wishes to benefit from the qualified worker.

Only if a student wishes to get training for individual reasons can he/she be asked to provide sufficient resources.

For the other issues we support the comments of UCSEI.

Rome, 21.2.2002 Dr. Annemarie Dupré

Federation of the Protestant Churches in Italy

Refugee and Migrant Service (FCEI-SRM)

(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