Legal provisions of COM(2022)655 - Single application procedure for a single permit for third-country nationals to reside and work in the EU and a common set of rights for third-country workers (Recast) - Main contents
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| dossier | COM(2022)655 - Single application procedure for a single permit for third-country nationals to reside and work in the EU and a common set ... |
|---|---|
| document | COM(2022)655  |
| date | April 24, 2024 |
CHAPTER I
GENERAL PROVISIONS
Contents
- Article 1 - Subject matter
- Article 2 - Definitions
- Article 3 - Scope
- Article 4 - Single application procedure 2011/98/EU (adapted) new
- Article 5 - Competent authority
- Article 6 - Single permit
- Article 7 - Residence permits issued for purposes other than work 2011/98/EU (adapted)
- Article 8 - Procedural guarantees
- Article 9 - Access to information
- Article 10 - Fees
- Article 11 - Rights on the basis of the single permit
- Article 12 - Right to equal treatment
- Article 13 - Monitoring, risk assessment, inspections and penalties
- Article 14 - Facilitation of complaints and legal redress
Article 1 - Subject matter
(a)a single application procedure for issuing a single permit for third-country nationals to reside for the purpose of work in the territory of a Member State, in order to simplify the procedures for their admission and to facilitate the control of their status; and
(b)a common set of rights to third-country workers legally residing in a Member State, irrespective of the purposes for which they were initially admitted to the territory of that Member State, based on equal treatment with nationals of that Member State.
2. This Directive shall not affect is without prejudice to the Member States’ powers concerning the volume of admission of third-country nationals coming from third countries to seek employment to their labour markets.
Article 2 - Definitions
(a)‘third-country national’ means a person who is not a citizen of the Union within the meaning of Article 20(1) TFEU;
(b)‘third-country worker’ means a third-country national who has been admitted to the territory of a Member State and who is legally residing and is allowed to work in the context of a paid an employment relationship in that Member State in accordance with national law or practice;
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(c)‘employer’ means any natural person or any legal entity, including temporary work agencies, for or under the direction and/or supervision of whom the employment is undertaken;
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(dc)‘single permit’ means a residence permit issued by the authorities of a Member State allowing a third-country national to reside legally in its territory for the purpose of work;
(ed)‘single application procedure’ means any procedure leading, on the basis of a single application made by a third-country national, or by his or her employer, for the authorisation of residence and work in the territory of a Member State, to a decision ruling on that application for the single permit.
Article 3 - Scope
(a)third-country nationals who apply to reside in a Member State for the purpose of work;
(b)third-country nationals who have been admitted to a Member State for purposes other than work in accordance with Union or national law, who are allowed to work and who hold a residence permit in accordance with Regulation (EC) No 1030/2002; and
(c)third-country nationals who have been admitted to a Member State for the purpose of work in accordance with Union or national law.
2. This Directive shall not apply to third-country nationals:
(a)who are family members of citizens of the Union who have exercised, or are exercising, their right to free movement within the Union in accordance with Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States 56 ;
(b)who, together with their family members, and irrespective of their nationality, enjoy rights of free movement equivalent to those of citizens of the Union under agreements either between the Union and the Member States or between the Union and third countries;
2011/98/EU (adapted)
(c)who are posted for covered by Directive 96/71/EC as long as they are posted on the territory of the Member State concerned ;
(d)who have applied for admission or have been admitted to the territory of a Member State to work as intra-corporate transferees in accordance with Directive 2014/66/EU of the European Parliament and of the Council in the framework of an intra-corporate transfer 57 ;
(e)who have applied for admission or have been admitted to the territory of a Member State as seasonal workers or au pairs in accordance with Directive 2014/36/EU or au pairs in accordance with Directive (EU) 2016/801 ;
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(f)who are authorised to reside in a Member State on the basis of temporary protection, or who have applied for authorisation to reside there on that basis and are awaiting a decision on their status;
(g)who are beneficiaries of international protection under Directive 2011/95/EU of the European Parliament and of the Council 58 Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third-country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted 59 or who have applied for international protection under that Directive and whose application has not been the subject of a final decision;
(h)who are beneficiaries of protection in accordance with national law, international obligations or the practice of a Member State or have applied for protection in accordance with national law, international obligations or the practice of a Member State and whose application has not been the subject of a final decision;
(hi)who are long-term residents in accordance with Directive 2003/109/EC;
(ij)whose removal has been suspended on the basis of fact or law;
(jk)who have applied for admission or who have been admitted to the territory of a Member State as self-employed workers;
(kl)who have applied for admission or have been admitted as seafarers for employment or work in any capacity on board of a ship registered in or sailing under the flag of a Member State.
3. Member States may decide that Chapter II does not apply to third-country nationals who have been either authorised to work in the territory of a Member State for a period not exceeding six months or who have been admitted to a Member State for the purpose of study.
4. Chapter II shall not apply to third-country nationals who are allowed to work on the basis of a visa.
CHAPTER II
SINGLE APPLICATION PROCEDURE AND SINGLE PERMIT
Article 4 - Single application procedure 2011/98/EU (adapted) new
2. Member States shall examine an application made submitted under paragraph 1 and shall adopt a decision to issue, amend or renew the single permit if the applicant fulfils the requirements specified laid down by Union or national law. A decision to issue, amend or renew the single permit shall constitute a single administrative act combining a residence permit and a work permit.
3. The single application procedure shall be without prejudice to the visa procedure which may be required for initial entry.
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3. Provided that the requirements laid down by Union or national law are fulfilled and where a Member State issues single permits only on its territory, the Member State concerned shall issue the third country national with the requisite visa.
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4. Member States shall issue a single permit, where the conditions provided for are met, to third-country nationals who apply for admission and to third-country nationals already admitted who apply to renew or modify their residence permit after the entry into force of the national implementing provisions.
Article 5 - Competent authority
2. The competent authority shall adopt a decision on the complete application as soon as possible and in any event within four months of the date on which the application was lodged.
2011/98/EU (adapted)
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The time limit referred to in the first subparagraph shall cover checking the labour market situation and issuing the requisite visa referred to in Article 4(3). The time limit may be extended in exceptional circumstances, linked to the complexity of the examination of the application.
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Where no decision is taken within the time limit provided for in this paragraph, any consequences shall be determined by national law.
3. The competent authority shall notify the decision to the applicant in writing in accordance with the notification procedures laid down in the relevant national law.
4. If the information or documents in support of the application are incomplete according to the criteria specified in national law, the competent authority shall notify the applicant in writing of the additional information or documents required, setting a reasonable deadline to provide them. The time limit referred to in paragraph 2 shall be suspended until the competent authority or other relevant authorities have received the additional information required. If the additional information or documents is not provided within the deadline set, the competent authority may reject the application.
Article 6 - Single permit
Member States may indicate additional information related to the employment relationship of the third-country national (such as the name and address of the employer, place of work, type of work, working hours, remuneration) in paper format, or store such data in electronic format as referred to in Article 4 of Regulation (EC) No 1030/2002 and in point (a)2016 of the Annex thereto.
2. When issuing the single permit Member States shall not issue additional permits as proof of authorisation to access the labour market.
Article 7 - Residence permits issued for purposes other than work 2011/98/EU (adapted)
2011/98/EU
Member States may indicate additional information related to the employment relationship of the third-country national (such as the name and address of the employer, place of work, type of work, working hours, remuneration) in paper format, or store such data in electronic format as referred to in Article 4 of Regulation (EC) No 1030/2002 and point (a)2016 of the Annex thereto.
2. When issuing residence permits in accordance with Regulation (EC) No 1030/2002, Member States shall not issue additional permits as proof of authorisation to access the labour market.
Article 8 - Procedural guarantees
2. A decision rejecting the application to issue, amend or renew or withdrawing a single permit shall be open to legal challenge in the Member State concerned, in accordance with national law. The written notification referred to in paragraph 1 shall specify the court or administrative authority where the person concerned may lodge an appeal and the time limit therefor.
2011/98/EU (adapted)
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3. An application may be considered as inadmissible on the grounds of volume of admission of third-country nationals coming from third countries for employment and, on that basis, need not to be processed.
Article 9 - Access to information
(a)adequate information to the third-country national and the future employer on all the documentary evidence needed for an documents required to make a complete application;
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(b) information on entry and residence conditions, including the rights, obligations and procedural safeguards of the third-country nationals and of their family members.
2011/98/EU (adapted)
Article 10 - Fees
Article 11 - Rights on the basis of the single permit
(a)enter and reside in the territory of the Member State issuing the single permit, provided that the holder meets all admission requirements in accordance with national law;
(b)have free access to the entire territory of the Member State issuing the single permit within the limits provided for by national law;
(c)exercise the specific employment activity authorised under the single permit in accordance with national law;
(d)be informed about the holder’s own rights linked to the permit conferred by this Directive and/or by national law.
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2. Within the period of validity referred to in paragraph 1, Member States shall allow a single permit holder to be employed by a different employer than the first employer with whom the permit holder concluded a contract of employment.
3. Within the period of validity referred to in paragraph 1, Member States may:
(a)require that a change of employer be communicated to the competent authorities in the Member State concerned, in accordance with procedures laid down in national law,
(b)require that a change of employer be subject to a check of the labour market situation.
The right of the single permit holder to pursue such a change of employer may be suspended for a maximum of 30 days while the Member State concerned checks the labour market situation and verifies that the requirements laid down by Union or national law are fulfilled. The Member State concerned may oppose the change of employment within those 30 days.
4. Within the period of validity referred to in paragraph 1, the single permit shall not be withdrawn during a period of at least three months in the event of unemployment of its holder. Member States shall allow the third-country national to stay in their territory until the competent authorities have taken a decision in accordance with paragraph 3, point (b), as relevant, even if that period of at least three months expired.
2011/98/EU
CHAPTER III
RIGHT TO EQUAL TREATMENT
Article 12 - Right to equal treatment
(a)working conditions, including pay and dismissal as well as health and safety at the workplace;
(b)freedom of association and affiliation and membership of an organisation representing workers or employers or of any organisation whose members are engaged in a specific occupation, including the benefits conferred by such organisations, without prejudice to the national provisions on public policy and public security;
(c)education and vocational training;
(d)recognition of diplomas, certificates and other professional qualifications in accordance with the relevant national procedures;
(e)branches of social security, as defined in Regulation (EC) No 883/2004;
(f)tax benefits, in so far as the worker is deemed to be resident for tax purposes in the Member State concerned;
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(g)access to goods and services and the supply of goods and services made available to the public including procedures for obtaining access to public and private housing as provided by national law, without prejudice to the freedom of contract in accordance with Union and national law;
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(h)advice services afforded by employment offices.
2. Member States may restrict equal treatment:
(a)under point (c) of paragraph 1, point (c), by:
(i)limiting its application to those third-country workers who are in employment or who have been employed and who are registered as unemployed;
(ii)excluding those third-country workers who have been admitted to their territory in conformity with Directive 2016/801/EU2004/114/EC;
(iii)excluding study and maintenance grants and loans or other grants and loans;
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(iv)laying down specific prerequisites including language proficiency and the payment of tuition fees, in accordance with national law, with respect to access to university and post-secondary education and training and to vocational education and training which is not directly linked to the specific employment activity;
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(b)by limiting the rights conferred on third-country workers under point (e) of paragraph 1, point (e), but shall not restrict such rights for third-country workers who are in employment or who have been employed for a minimum period of six months and who are registered as unemployed.
In addition, Member States may decide that point (e) of paragraph 1, point (e), with regard to family benefits shall not apply to third-country nationals who have been authorised to work in the territory of a Member State for a period not exceeding six months, to third-country nationals who have been admitted for the purpose of study, or to third-country nationals who are allowed to work on the basis of a visa.
(c)under point (f) of paragraph 1, point (f), with respect to tax benefits by limiting its application to cases where the registered or usual place of residence of the family members of the third-country worker for whom he/she claims benefits, lies in the territory of the Member State concerned.
(d)under point (g) of paragraph 1, point (g) , by:
(i)limiting its application to those third-country workers who are in employment;
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(ii)restricting access to public housing;
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3. The right to equal treatment laid down in paragraph 1 shall be without prejudice to the right of the Member State to withdraw or to refuse to renew the residence permit issued under this Directive, the residence permit issued for purposes other than work, or any other authorisation to work in a Member State.
4. Third-country workers moving to a third country, or their survivors who reside in a third country and who derive rights from those workers, shall receive, in relation to old age, invalidity and death, statutory pensions based on those workers’ previous employment and acquired in accordance with the legislation referred to in Article 3 of Regulation (EC) No 883/2004, under the same conditions and at the same rates as the nationals of the Member States concerned when they move to a third country.
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Article 13 - Monitoring, risk assessment, inspections and penalties
2. Member States shall lay down the rules on penalties applicable to infringements by employers of national provisions adopted pursuant to Article 12. The penalties provided for shall be effective, proportionate and dissuasive. Member States shall, without delay, notify the Commission of those rules and of those measures and shall notify it, without delay, of any subsequent amendment affecting them.
3. Member States shall ensure that services in charge of inspection of labour or other competent authorities and, where provided for under national law in respect of national workers, organisations representing workers’ interests have access to the workplace.
Article 14 - Facilitation of complaints and legal redress
(a)directly; or
(b)through third parties which have, in accordance with the criteria laid down by their national law, a legitimate interest in ensuring compliance with this Directive; or
(c)through a competent authority of the Member State when provided for by national law.
2. Member States shall ensure that third parties referred to in paragraph 1, point (b) may engage either on behalf of or in support of a third-country worker, with his or her approval, in any judicial and/or administrative procedures aimed at enforcing compliance with this Directive.
3. Member States shall ensure that third-country workers have the same access as nationals of the Member State where they reside with regard to:
(a)measures protecting against dismissal or other adverse treatment by the employer as a reaction to a complaint within the undertaking; or to
(b)any judicial and/or administrative procedure aimed at enforcing compliance with this Directive.
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CHAPTER IV
FINAL PROVISIONS
Article 1513 - More favourable provisions
1. This Directive shall apply without prejudice to more favourable provisions of:(a)Union law, including bilateral and multilateral agreements between the Union, or the Union and its Member States, on the one hand and one or more third countries on the other; and
(b)bilateral or multilateral agreements between one or more Member States and one or more third countries.
2. This Directive shall be without prejudice to the right of Member States to adopt or maintain provisions that are more favourable to the persons to whom it applies.
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Article 1614 - Information to the general public
Each Member State shall make available easily accessible to the general public a regularly updated set of information:(a)concerning the conditions of third-country nationals’ admission to and residence in its territory in order to work there;
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(b)on all the documentary evidence needed for the application;
(c)on entry and residence conditions, including the rights, obligations and procedural safeguards, of the third-country nationals falling under the scope of this Directive.
2011/98/EU (adapted)
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Article 1715 - Reporting
1. Periodically, and for the first time no later than […] 25 December 2016, the Commission shall present a report to the European Parliament and the Council on the application of this Directive in the Member States and shall propose amendments it deems necessary.2. Annually, and for the first time by 25 December 2014 no later than [ ] , Member States shall communicate to the Commission (Eurostat) statistics on the volumes of third-country nationals who have been granted a single permit during the previous calendar year, in accordance with Regulation (EC) No 862/2007 of the European Parliament and of the Council of 11 July 2007 on Community statistics on migration and international protection 60 . Those statistics shall relate to reference periods of one calendar year, be disaggregated by type of decision, reason, length of validity and citizenship and be transmitted within six months after the end of the reference period.
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Article 1816 - Transposition
1. Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with Article 2 point (c), Article 3(2), Article 4(1) and (3), Article 5(2), second subparagraph, Article 7(1), Article 9, Article 11(2) to (4), Article 12(1), point (g), Article 12(2), point (b) second paragraph, Article 12, point (d)(ii), Article 13, Article 14 and Article 16 this Directive by [two years after the entry into force] 25 December 2013. They shall forthwith immediately communicate the text of those measures to the Commission the text of those provisions.When Member States adopt those measures, they shall contain a reference to this Directive or shall be accompanied by such a reference on the occasion of their official publication. The methods of making such reference shall be laid down by Member States. They shall also include a statement that references in existing laws, regulations and administrative provisions to the directive repealed by this Directive shall be construed as references to this Directive. Member States shall determine how such reference is to be made and how that statement is to be formulated.
2. Member States shall communicate to the Commission the text of the main provisions measures of national law which they adopt in the field covered by this Directive.
Article 19
Repeal
Directive 2011/98/EU listed in Part A of Annex I, is repealed with effect from [day after the date set out in the first subparagraph of Article 18(1) of this Directive], without prejudice to the obligations of the Member States relating to the time‑limits for the transposition into national law of the Directive set out in Part B of Annex I.
References to the repealed Directive shall be construed as references to this Directive and shall be read in accordance with the correlation table in Annex II.
Article 2017 - Entry into force and application
This Directive shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union.Article 1, Article 2 points (a) and (b), Article 2, points (d) and (e), Article 3(1), Article 3(2), points (a), (b), (f) and (h) to (k), Article 3(3) and (4), Article 4(2) and (4), Article 5(1), (3) and (4), Article 6, Article 7(2), Article 8, Article 10, Article 11(1), Article 12(1) points (a) to (f) and (h), (2), points (a), (c), (d) and (i), (3) and (4), and Article 15, shall apply from [the day after the date in the first subparagraph of Article 18(1)].
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Article 2118 - Addressees
This Directive is addressed to the Member States in accordance with the Treaties.