DISCUSSION PAPER ON THE PROPOSAL FOR A DIRECTIVE CONCERNING THE CONDITIONS OF ENTRY AND RESIDENCE OF THIRD COUNTRY-NATIONALS FOR THE PURPOSES OF STUDY OR VOCATIONAL TRAINING AND ON THE PROPOSAL FOR A DIRECTIVE CONCERNING THE CONDITIONS OF ENTRY AND RESIDENCE OF THIRD COUNTRY-NATIONALS FOR OTHER PURPOSES
Nota bene : the principal elements on which it is wished persons consulted to decide more particularly appear in bold and in italic in the text.
I. PROPOSAL FOR A DIRECTIVE CONCERNING THE CONDITIONS OF ENTRY AND RESIDENCE OF THIRD-COUNTRY NATIONALS FOR THE PURPOSES OF STUDIES OR VOCATIONAL TRAINING
1. GENERAL POLICY ORIENTATION
· The admission of third-country nationals for the purpose of study has always been legally possible even during the period of restricted immigration. In its resolution on the admission of third-country nationals to the territory of Member States of the European Union for the purpose of study adopted on 30 November 1994, the Council of Ministers held to reaffirm that “the international exchange of students and academics is desirable” and pointed out that “the education of students and the exchange of academics have positive implications for relations between the Member States and the States of origin”. Certain Member States indeed implement increasingly attractive policies with respect to students from third countries.
· Migration for the purpose of studies or vocational training fall under a context of reciprocal enrichment : not only for those persons directly involved, who receive the obvious benefit, but also for their state of origin and the Member State of the European Union which welcome them :
- the admission of students constitutes a contribution of the Union and of its Member States to the development of the third countries that need it;
- the host Member State also benefits from its admission policy insofar as the trained students on its territory constitute, in addition to being a reserve of qualified and well integrated manpower, potential agents for the dissemination of its culture and language as well as promoters for its companies, without forgetting that European universities, in certain cases, place higher registration fees on third country students than those required of Community nationals.
· Europe is gradually welcoming this prospect. In their Bologna statement adopted in 1999, Ministers for education pointed out that “The vitality and efficiency of any civilisation can be measured by the appeal that its culture has for other countries. We need to ensure that the European higher education system acquires a world wide degree of attraction equal to our extraordinary cultural and scientific traditions”. Being based on the third paragraph of Article 149 of the EC treaty, the Commission identified in its Communication on strengthening of co-operation with third countries in the field of higher education (COM 2001,385 of 18.7.2001), the immediate objectives that the EC should continue in this field :
1. Form human resources of high quality in partner countries and within the Community, thanks to reciprocal development of human resources;
2. Promote the EU as a world class centre of excellence for studies/training and for scientific and technological research.
These objectives address the need to develop the higher educational systems in the Community in order to prepare its citizens and its manpower for a world environment by taking the international dimension duly into account. This point is stated clearly in the recent report on the concrete objectives of the educational systems presented by the Council on Education to the European Council of Stockholm. They also answer the constantly increasing request for international teaching and for students' mobility. One of the proposed measures in order to achieve these goals is to increase the number of exchanges of students, teachers and researchers within the framework of partnerships between the Community’s institutions of higher education and of third countries as well as via long-term grants for students of third countries who wish to benefit from a complete period of studies in the Community. Mobility towards Europe is a key element in the proposed strategy. To make Europe more attractive, the Community has to improve the perception of Europe as a whole as a centre of educational excellence by various means and, in particular, by the harmonisation of the conditions of admission of the students from third countries.
· The admission for the purpose of studies or vocational training is, on the one hand, temporary and limited in the time to the duration of the studies or of the training, and on the other hand, independent of the state of the labour market.
· For all the reasons above, the objective of the proposal for a Directive should be to encourage the admission of third-country nationals for the purpose of study or vocational training. This aim can be reached in two manners: either by objectifying as much as possible the conditions of admission while preserving a certain assessment power of the Member States, or by recognising some of the persons concerned a right to be admitted as far as they meet the requirements, knowing that this right could be limited in various ways (for example by introducing an age limit for students or while limiting in the time the maximum duration of the doctorate studies which can give rise to more abuses than the other types of study) and that a provision could be introduced in order to make it possible for Member States to fix in the event of surges of a significant number of students in relation to their capacities of reception (in particular from the point of view of housing) a maximum annual quota. These limitations would not mean that it is impossible to be admitted, but that there would not exist on these hypotheses a right to admission.
· The will to encourage admission of third-country nationals for the purpose of study or vocational training requires that the European Union be concerned at in the same time about the problems of brain drain. It is advisable not to pass without accompanying measures of the policy of yesterday where students were at the end of their studies obliged to return in their country of origin to a new policy where they would increasingly be encouraged to remain to satisfy the needs of the labour market in the Member State which welcomed them for their studies. For example, such an attitude would not conform to the pattern of the Cotonou agreement of which Article 13, §4, subparagraph 3 specifies that "The Community shall support, through national and regional co-operation programmes, the training of ACP nationals in their country of origin, in another ACP country or in a Member State of the European Union. With regard to training in a Member State of the European Union. As regard training in a Member State, the Parties shall ensure that such actions is geared towards the vocational integration of the ACP nationals in their countries of origin". The possible supporting measures fall under the prospect for partnership with the countries of origin appearing in the conclusions of the Tampere Summit among the elements necessary for the establishment of a common migration policy which has to be overall. Consideration could be undertaken to see how students could serve as a link and as a bridge between their country of origin and the Member State of the European Union where they were formed. If it is clear that such an objective can only be truly implemented within the framework of a broader policy including development, it could possibly result in the introduction into this proposal for a Directive or other instruments, of provisions aiming to facilitate the mobility of the former trained students in a Member State of the European Union between their state of origin and the EU, in particular in order to enable them to follow vocational training.
· At the same time it is important to guarantee the Member States the means to provide the needs of public security. The proposal would clearly comprise a clause preserving their power to refuse to admit, renew or withdraw a residence permit for reasons of public order, public security and of public health, while specifying that these reasons have to be based on the personal behaviour of the third-country national concerned. This drafting appears sufficiently broad to preserve to the Member States necessary room for manoeuvre to refuse the admission or to end the stay of a third country national when such measures are objectively necessary. An interpretative clause could possibly be added to specify that previous or current membership of a terrorist organisation can always be regarded as a threat for the public security. The advisability of introducing into the proposal a provision like the obligation for the educational or training establishments to inform systematically at the end of each year the competent authority as regards immigration concerning the course of the students or trainees (in particular concerning the presence at the examinations), allowing to meet better these concerns in practice and to avoid that the admission for the purpose of studies or vocational training is diverted of its object, could be discussed.
2. CONTENT OF THE PROPOSAL FOR A DIRECTIVE
A. Definition of persons concerned
It is proposed to establish a distinction between persons according to whether they are admitted for the purpose of studies or for the purpose of vocational training. This distinction is specific to the policy of admission of third-country nationals and does not call into question the overall approach of training within the framework of the Community education and vocational training policy.
Concerning persons admitted for the purpose of studies, an additional distinction has to be made according to the teaching levels. Indeed, if all the Member States enacted specific provisions concerning the admission of third-country nationals in higher education, it is not the same for the lower levels. It is therefore proposed to distinguish between students and pupils. In the same way that within the framework of the Erasmus action of the Socrates programme, one would understand by student "any person registered in any type of higher educational institution, according to national legislation or practice, which offers qualifications or diplomas at that level, whatever such establishments may be called in the Member States, in order to follow higher education studies leading to a degree or diploma, up to and including the level of doctorate, whatever their field of study". In line of the political objectives, it is proposed to regulate the admission of students of higher education. It is not proposed to recognise a means of admission specific to the pupils registered in lower level educational establishments. Indeed, access to education for the majority of them has in principle to be carried out on the basis of Article 12 of the revised proposal for a directive on the right to family reunification.
The category of persons relating to vocational training is much more difficult to identify. Much more than teaching, vocational training is organised in a diversified way in the Member States : it can take place within the framework of a "training body" , but also within a framework of work (for example a company) and even both at the same time by alternating teaching and training; it can take various shapes and be initial and aim at the acquisition of a professional qualification, or continued or permanent and aim at recycling or involve professional conversion; in addition, persons can collect a certain amount of money or benefit from certain advantages for their period of training. The result is that persons concerned, who are described in various manners (trainees, apprentices, etc.) will fall within different categories according to the framework in which they follow their training and according to whether any payment they receive can or cannot be treated as remuneration.
When training is followed within the framework of a training body as defined by the Leonardo programme and in as far as the establishment in question is financed or is agreed by the public authorities (infra), it is proposed to assimilate persons concerned to the students, even if the training includes a practical part at work, on condition that persons are registered within this organism and perceive no remuneration in any form (in money or in kind).
When the training is followed within the framework of work, the question is to know whether or not persons concerned fall within the category of employed persons. The proposal for a Directive concerning the conditions of entry and of residence of third country nationals for the purpose of employment adopted by the Commission in July 2001 comprises special provisions for the trainee defined in Article 2 as "a third-country national whose presence in the territory of a Member State is strictly limited in duration and is closely connected with increasing their skills and qualifications in their chosen profession before returning to their own country to pursue their career"; Article 15 shows that trainees "have to demonstrate that the envisaged activity is strictly limited in duration (in principle a year) and is closely connected with increasing their skills and qualifications". The inclusion of trainees in this proposal assumes that they carry out an economic activity. The trainees remunerated will therefore be covered by the latter proposal for a Directive. The unremunerated trainees would be covered by this proposal for a Directive and would have their admission submitted for the signature of a training convention; as these can be signed by any kind of company, and even possibly by self-employed workers, the idea of recognising possibly a right to admission is in this case not envisaged to avoid abuses; on the contrary it is proposed to invest Member States of an assessment power regarding the seriousness of envisaged training. The few economic benefits (pocket money, housing, food) additional with their training, which can be perceived by certain trainees, would not be regarded as remuneration.
· The proposal for a Directive would not apply to third-country nationals subject to the more favourable provisions which can result from bilateral or multilateral agreements concluded between the Community or the Community and its Member States and third countries as well as from bilateral or multilateral agreements concluded between one or more Member States and the third countries.
· the proposal for a Directive would not apply to :
- third-country nationals who are members of the family of citizens of the Union having exercised their right to freedom of movement inside the Community;
- long-term resident third country nationals in a Member State exercising their right of stay in a second Member State to follow study or vocational training there;
- third-country nationals whose residence is not legal and whose deportation has been suspended for factual or legal reasons;
The opportunity of extending the scope of the proposal to third-country nationals remaining in a Member State as asylum seekers, under subsidiary forms of protection or within the framework of temporary protection arrangements can be examined.
· In the absence of specific Community provisions, Member States could maintain or adopt more favourable provisions on researchers and academics or certain groups of students (for example those having studied in a teaching network organised by a Community Member State in the third countries, such as the French colleges).
C. Nature of the student visa
A choice has to be made between two systems : either the student visas and equivalent issued by a Member State have a "European" value and are valid for all Member States subject to the checking that the conditions of admission are respected at the time of the issue of the residence permit, or these visas remain national and are valid only for a Member State while making it possible nevertheless for persons concerned to continue their studies or their training in another Member State if conditions are met. In favour of the first option, the admission for the purpose of study or vocational training can be considered, contrary to the admission for economic purposes, at the level of all the European Union because this involves a form of immigration independent of the state of the labour market within the Member States. Such a system would logically suppose nevertheless a total harmonisation of the conditions of admission, which would result in a rise of the requirements in certain Member States, in particular concerning the condition of sickness insurance (infra). The second option makes it possible to avoid this paradoxical effect and can be accompanied by provisions guaranteeing to the holders of national licences having been admitted for the purpose of study or vocational training in a first Member State freedom of movement enabling them to go to continue their studies or their training in a second Member State. If the second option were retained, the first could always be regarded as a medium or long-term objective that the European Union could continue gradually on the basis of the experiences of Member States.
It is proposed to retain the six cumulative conditions which follow for the admission of students.
1. The holding of a valid passport or equivalent travel documents
2. Registration or at least pre-registration (infra) in a higher educational establishment and, if the Member State asks for it, have sufficient knowledge of the teaching language
A student would have the right to be admitted in order to:
- follow studies: these have to constitute a full-time programme and it cannot therefore be lessons with limited schedule, for example evening courses. Only persons registering themselves in the "regular" student's capacity, i.e. with a view to obtain the diploma sanctioning the studies undertaken, would be covered by the proposal for a Directive, and not persons wishing to register themselves in the capacity as free students or as simple auditor without passing the examinations.
- follow preparatory courses to specific studies : this consists of an especially organised year of study to prepare the student for higher education by supplementing his/her training in specific matters (such as mathematics) and which is therefore directly in relation to the studies envisaged at a later date. One can possibly include in this hypothesis the learning of the language of the host country provided that this involves courses preparing especially for higher education or of intensive and long-term courses making it possible to justify a stay of more than three months.
- prepare a doctorate thesis.
The higher educational establishments (mostly universities) as defined in the Community programmes would involve establishments both public and private, as far as the latter are financed by the public authorities or are agreed by the competent authorities of the Member State as regards education, with the aim of avoiding registrations of convenience. In order to light the students on the possibilities of admission, it would be requested from Member States to draw up and publish a complete and regularly updated list of the establishments concerned and to circulate it on an Internet site. A student could always ask to be admitted in an establishment not found on this list, but the Member State would have then discretionary power to check the seriousness of the envisaged studies.
The proposal for a Directive would require, as a condition, that the student be registered on a final or provisional basis by a higher educational establishment without specifying the conditions of registration which depend on the national law of each Member State as well as sometimes, to a certain extent, of the establishments themselves. Problems can emerge from the fact that students from third countries have in general to benefit from an equivalent decision of their previous diplomas to have access to higher education and also owing to the fact that they are logically obliged to request their admission at a time when they have not yet completed their last year of secondary studies and when they are not yet therefore in possession of the diploma giving them access to higher education. This could be solved by accepting the admission of these students on the basis of a provisional registration certificate (pre-registration) delivered subject to the production of their diploma and of the equivalence decision of their studies, the final registration being checked at the time of the entry into the territory or at the time of the issuing of the residence permit.
The time management of the admission of students can pose problems and have for consequence that interested parties miss the beginning of their year of courses. As this type of request depends on a seasonal rhythm, one could contribute to regulating it by introducing an obligation for the Member States to publish an indicative timetable specifying the dates of submission of the admission requests by the candidates and the dates of issue of the authorisations by the Member States . Such a procedure would be likely to encourage the grouped treatment of the admission requests, which seems, according to the experience of certain Member States, to facilitate and accelerate the treatment of the files.
It is natural that the student has sufficient knowledge of the teaching language. This requirement is not however reflected in the same way in all the Member States : in some, it forms part of the conditions of registration in the educational establishment, in others it is a genuine condition of admission to the stay. For this reason, a flexible formula would be proposed consisting of a non-generalisation of such a requirement, while allowing the Member States which wish it to necessitate its respect.
3. Have sufficient resources
The student should have sufficient resources to provide for his/her own living, study and repatriation expenses. The fact of not having the resources could alone justify the removal of the student. In order to clarify the requirements with regard to the students, Member States should fix the minimum amount of monthly resources that they intend to require and disseminate this information. This minimum amount must be proportioned at the cost of living for a student in the Member State concerned and could possibly vary according to the regions of the Member State.
Whereas Community national students only have to provide a simple resource statement, third-country nationals would be required to provide evidence that they have indeed sufficient resources. The student could use all possible means of proof. Resources in kind, such as the fact of being nourished or lodged by parents or friends would be taken into consideration. In order to facilitate the administration of this proof, it is proposed that the directive specifies certain methods considered sufficient without excluding others : it could first of all be a certificate emanating from an international organisation or from a legal entity of public or private law having appropriate financial resources according to which the student has a grant or a study loan; then, of the legal commitment of assumption of responsibility of the living expenses, of studies and of repatriation of the student emanating from a legal entity having an establishment in the national host Member State or from a Community physical person residing in the host Member State or a third country national who is not an asylum seeker or under temporary protection residing in the host country on the basis of a residence permit valid for at least a renewable period of one year, and presenting solvency guarantees.
The student should provide the proof of his/her resources in his admission file and then at the time of each renewal of his/her residence permit. As it is proposed to recognise the students the right to work to a certain extent (infra), the amount of income that he can draw from work would be taken into account as a complement to the resources which he has to have in addition concerning the renewal of his residence permit (in other words as from their second year of stay); concerning the admission and the issuing of the visa and of the residence permit (in other words during the first year of studies), the student should provide the proof that he has sufficient resources independently of possible earnings. Such a requirement would be provided for to fight against persons who would like to remain in the European Union with the aim of working here under cover of a statute of student.
4. If the Member State asks for it, have health insurance covering all the risks in the host Member State
This condition would not be made compulsory generally and could be imposed only by the Member States which wish it because some of them do not require it currently for various reasons (probably because students can in certain states benefit automatically from insurance by means of the university within which they are registered).
5. Not to be regarded as a danger to public order, public security or public health
6. The proof of the payment of the fee for handling the application and, if the Member State asks for it, the proof of the payment of the registration fees due to the educational establishment
These six conditions would also be valid for persons undergoing training assimilated to students, given that these have to register themselves not within an educational establishment but within a public or private training body, as far as it is in the latter case financed by the public authorities or agreed by the competent authorities of the Member State with regards vocational training.
The case of the trainees covered by this proposal for a Directive is different for the reason that the option consisting of recognising of a right to admission is not envisaged in their case. In the same way that in the proposal for a Directive concerning the admission for the purpose of employment, those should prove that the envisaged activities have a duration strictly limited and are closely connected with the improvement of their competencies and qualifications. This proof should materialise by the signature of a training convention. In order to avoid abuses, it is proposed to invest the competent authorities with regards to admission of the power to check the reality and the seriousness of the envisaged training.
E. Procedure for granting permits
The submission of a request for residence permits in the host country would be permitted, so that persons concerned would not be obliged to introduce it from their country of origin via the embassies or consulates. The introduction of a request in the country supposes that the applicant remains legally on the territory of the petitioned Member State, knowing that it involves no right to stay, nor has a suspensory effect against a removal decision.
It is proposed to recognise to the educational or training establishments the possibility of submitting the requests for residence permits on behalf of the students or on behalf of persons undergoing training in order to accelerate the procedures and to make it possible for the universities to support themselves certain categories of students, for example the most exceptional ones or those coming from favoured countries. This procedure can be coupled with the award of a grant or of a study loan by the educational or training establishments or the opportunity provided to these establishments of standing as guarantors for a student. In a more general way, the idea of giving to the establishments acting under officially approved programmes the power to attest that the student meets the admission conditions (except public order, public security and public health) can also be discussed.
It is proposed that Member States respect a deadline of three months (i.e. 90 days) for the communication of the decisions of granting, of modification, of renewal or of refusals of the permits. This term is shorter than in the other proposals for a Directive for the reason that the admission periods have to guarantee to the students the possibility of attending the courses from its beginning. Decisions not to grant, not to renew, suspend, withdraw or amend a visa or any licence in accordance with the request should contain motivation based on objective and verifiable criteria. The person concerned would have the right to refer to the courts of the Member State in question and he/she would be informed of the possibilities and recourse deadlines.
F. Duration and renewal of the permits
The validity of the permit would be equal to at least a year, if the total duration of the studies envisaged would be higher than a year; if it is less than a year, the permit would cover this duration. Except if the initial permit had a validity duration higher than a year, the studying licence would be renewed from year to year on condition that its recipient always meets the requirements for the granting of the permit and in as far as it meets the following conditions:
- sufficient advancement is made on the envisaged studies or training; the Member State has to justify the refusals of permit renewal in relation to the opinion of the authorities of the educational or vocational establishment that it has to have collected beforehand concerning the course of the student concerned, except if they did not comply with the request within a reasonable time;
- not carry out any gainful employment which is obviously incompatible with the continuation of the envisaged studies or training.
The term of validity of the training permit would be brought into line with Article 15 of the proposal for a Directive concerning the admission for the purpose of employment : this involves a maximum duration of a year, which can be extended exclusively for the time necessary to acquire a professional qualification recognised by the Member State in the sphere of activity of the trainee.
G. Rights of the permit holders with particular regards to work
The principal question to be examined concerns access to work. It is proposed to recognise students a certain right to work, by leaving Member States free to settle this question within certain limits; the minimum proposed is 10 working hours and the maximum 18 hours per week. The working hours could not cover hours normally designated for courses or training; therefore, it can cover, apart from the periods of school holidays, only the evenings, weekends and public holidays. Persons concerned would be obliged to declare their activity to the competent authorities of the Member State before it has actually begun. This statement would concern, in addition to the working hours, the employer and the post occupied in the event of paid employment or the type of activity in the event of self-employment. In the absence of statement and without prejudice to any other applicable sanction in the event of illegal work, the earned income could not be taken into consideration for the calculation of the resources that persons have. The proposal for a Directive would permit the Member States to refuse to the students the right to work during their first year of studies and to withdraw to them this right at a later date if they would not progress sufficiently in the advancement of their studies in order to fight against persons who intend to abuse the student's statute to work in the European Union.
It is clear that the proposal for a Directive constitutes the base of a right to the payment by the host Member State, neither of grants of access to studies, nor of grants of maintenance to the students. In the absence of provision granting to students of third countries a treatment identical to that of European citizens, this precision does not have to be the subject of a deliberate provision in the body of the directive, but would be introduced into the explanatory memorandum or the comments on articles.
H. Admission by another Member State of persons initially admitted for the purposes of study or vocational training by a first Member State
If the idea of conferring a European value on the student permits would not be retained, it is proposed to facilitate the "free movement" of third-country nationals students by compelling the second Member State to deliver or refuse the residence permit within two months, which enters within the three months period during which persons wishing to continue their studies or their training have the possibility of moving under the terms of Article 21 of the Schengen Convention or of the regulation EC 1091/2001 of 28 May 2001 on freedom of movement with a long stay visa. Thus, persons' mobility would be ensured without hiatuses between the first and the second Member State. This system would suppose that persons concerned are obliged to respect a period for the submission of their request for residence permits in the second Member State, i.e. 7 working days, which corresponds to the period proposed by the Commission during which third-country nationals have to declare their presence when they make use of the right to circulate freely for three months (see Article 14 of the proposal for a Directive "relating to the conditions in which third- country nationals shall have the freedom to travel in the territory of the Member States for periods not exceeding three-month, introducing a specific travel authorisation and determining the conditions of entry and movement for periods not exceeding six months").
I. More favourable conditions for persons benefiting from Community programmes
Certain third-country nationals can enjoy the support of the European Union through Community programmes to follow studies or vocational training in a Member State. It is difficult to answer the question to what extent it is possible to encourage their admission before the solutions adopted for students in general are known. One possible suggestion could be to exempt them from providing the proof of sufficient resources and only subject them, such as Community nationals, to the obligation to make a sufficient resource statement.
II. PROPOSAL FOR A DIRECTIVE CONCERNING THE CONDITIONS OF ENTRY AND RESIDENCE OF THIRD_COUNTRY NATIONALS FOR OTHER PURPOSES
Another directive was announced to cover the admission of third-country nationals not falling within the categories for which specific directives are laid down (employed or self-employed workers, students, members of family, refugees, etc). This involves the equivalent for third-country nationals of the directive 90/364 of 28 June 1990 concerning the right of stay intended for Community nationals who do not benefit from this right under the terms of other provisions of Community legislation. The European asset on the matter is non-existent because the proposal for a joint position "concerning the admission as residents on the territory of the Member States of third- country nationals who do not wish to carry out employment or continue studies" prepared in 1995 under Spanish presidency within the framework of the Maastricht third pillar was never adopted by the Council of Ministers.
The heading of this directive which was announced under various titles first must be fixed : admission for other purposes, admission for purposes of non gainful or non economic activities. As persons likely to fall under this category (for example volunteers) cannot carry out activities (cases of pensioners or of sick persons), it is proposed to retain "admission for other purposes" in order to well demonstrate that it is a residual category covering all persons not affected by the others (proposals for) directives, either that these persons are covered in none of the categories provided for by the (proposals for) directives (for example pensioners) or that these persons come in principle under one of these categories, but do not satisfy the requirements (for instance a family member who cannot benefit from family reunification).
2. CONTENTS OF THE PROPOSAL FOR A DIRECTIVE
A. Persons concerned
Persons potentially concerned are very disparate because this proposal covers all persons not falling within the scope of the directives for which specific rules were planned, given that the proposal for a Directive on the conditions of entry and of residence of Third country nationals for the purpose of paid employment and self-employed economic activities comprises special provisions concerning programmes of exchange or of mobility intended for young people, including au pairs as far as these persons carry out employed activities. In comparison with the rules governing Community nationals, retired third country nationals constitute the most obvious potential recipients of this proposal. It is proposed to include in the proposal a general clause permitting Member States to maintain or adopt more favourable provisions concerning certain categories of third-country nationals not falling within the scope of other directives.
The proposal for a Directive would not apply to third-country nationals subject to more favourable provisions which can result from bilateral or multilateral agreements concluded between the Community or the Community and its Member States and third countries as well as from bilateral or multilateral agreements concluded between one or more Member States and third countries.
This directive would not apply:
- to third-country nationals who are members of a family of EU citizens having exercised their right to freedom of movement inside the Community;
- to third-country nationals whose residence is not legal and whose deportation has been suspended for factual or legal reasons;
- to third-country nationals remaining in a Member State as asylum seekers, under subsidiary forms of protection or within the framework of temporary protection arrangements.
C. Conditions of issue of permits
Member States would be free to issue visas and residence permits to persons concerned in the respect of the four following conditions. They would maintain therefore a broad assessment power.
1. Have sufficient resources
Third-country nationals should, without carrying out any gainful activity, have stable and sufficient resources to provide for their own living and repatriation expenses. The right of residence would be clearly connected with the possession of resources. The fact of not having the resources could alone justify the removal of the student. Member States should fix the minimum amount of the monthly resources that they intend to require and disseminate this information. This minimum amount must be proportioned at the cost of living in the Member State concerned and could possibly vary according to the regions of the Member State.
Third-country nationals could use all means possible to provide the required evidence. In order not to block the mobility of persons who worked in a Member State of the European Union and have returned to their state of origin, the proof of the existence of a retirement or disability pension the rights of which are open within the admission Member State would be considered sufficient when its amount is higher or at least equal at the level of the minimum pension of social Security poured in this Member State.
2. Have health insurance covering all the risks in the host Member State
3. Not to be regarded as a danger to public order, public security or public health
This clause would be written in an identical way with that provided for in the proposal concerning the admission for the purposes of study or vocational training subject to the fact that persons concerned with this proposal are not permitted to work while they have to have resources, it will be explicitly envisaged that Member States can require evidence relating to the existence of the resources but also regarding their origin to make sure that it is lawful.
4. The proof of the payment of the rights of treatment of the admission request
D. Proceedings for grant of permits
The lodging of a request for residence permits in the host country would be permitted, so that persons concerned would not be obliged to register it from their country of origin via the embassies or consulates. The registration of a request in the country supposes that the applicant remains legally on the territory of the asked Member State, knowing that it involves no right to the stay or suspensory effect against a remoteness decision.
The period for the communication of the decisions of granting, of modification, of renewal or of refusals of the permits would be of six months (this period is longer than that proposed for students for the reason that the requested admission is not connected with an element such as the beginning of the courses). Decisions not to grant, not to renew, suspend, withdraw or amend a visa or any permit in accordance with the request should be justified and the person concerned would have the right to refer to the courts of the Member State in question and would be informed of the possibilities of recourse and deadlines.
E. Duration and renewal of permits
The residence permit issued initially would be valid for a duration of at least a year and renewable at least from year to year, except if the third country national does not provide the proof that he/she has sufficient resources to cover the year for which he/she requests a permit, in which case it can have a duration proportional to the financial resources for which the third-country national provides proof.
F. Rights of persons admitted
Persons permitted to remain would not have access to the labour market, subject to pensioners who could possibly be permitted by the Member States to carry out on an additional basis a gainful employment within the limits that they fix
According to the decision of the Council at its meeting on 26 April 1999 establishing the second phase of the Community action programme on vocational training "LEONARDO DA VINCI", this involves "Any type of public, semi-public or private establishment, which, in accordance with national legislation and/or practices, design or undertake vocational training, further vocational training, refresher vocational training or retraining, irrespective of the designation given to it in the Member States".