Explanatory Memorandum to COM(2013)151 - Conditions of entry and residence of third-country nationals for purposes of research, studies, pupil exchange, training , voluntary service and au pairing [RECAST] - Main contents
Please note
This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2013)151 - Conditions of entry and residence of third-country nationals for purposes of research, studies, pupil exchange, training , ... |
|---|---|
| source | COM(2013)151  |
| date | 25-03-2013 |
· Grounds for and objectives of the proposal
Article 79 of the Treaty on the Functioning of the European Union (TFEU) entrusts the Union with the task of developing a common immigration policy aimed at ensuring efficient management of migration flows and fair treatment of third-country nationals residing legally in the Member States. The present proposal responds to this mandate and aims to contribute to the implementation of the Europe 2020 Strategy.
The implementation reports of Directives 2005/71/EC of 12 October 2005 on a specific procedure for admitting third-country nationals for the purposes of scientific research and Directive 2004/114 of 13 December 2004 on the conditions of admission of third-country nationals for the purposes of studies, pupil exchange, unremunerated training or voluntary service i have shown a number of weaknesses of these instruments. These shortcomings concern key issues such as admission procedures including visas, rights (including mobility aspects) and procedural safeguards. The current rules are insufficiently clear or binding, not always fully coherent with existing EU funding programmes, and sometimes fail to address the practical difficulties that applicants face. When combined, these problems put into question whether third-country nationals consistently receive fair treatment under the existing instruments.
Directive 2004/114/EC on students lays down mandatory rules for the admission of third-country national students, with an option for Member States to apply the Directive for school pupils, volunteers and unremunerated trainees. Directive 2005/71/EC on researchers provides for a fast track procedure for the admission of third-country researchers who have completed a hosting agreement with a research organisation approved by the Member State.
The need to improve the current rules is reinforced by the fact that circumstances and policy context are very different today than when the Directives were adopted. In the context of the Europe 2020 Strategy and the need to ensure smart, sustainable and inclusive growth, human capital represents one of Europe's key assets. Immigration from outside the EU is one source of highly skilled people, and third-country national students and researchers in particular are groups which are increasingly sought after. Fostering people-to-people contacts and mobility are also important elements of the EU’s external policy, notably vis-à-vis the countries of the European Neighbourhood Policy or the EU’s strategic partners.
The present proposal aims at improving the provisions of third-country national researchers, students, school pupils, unremunerated trainees and volunteers, and applying common provisions to two new groups of third-country nationals: remunerated trainees and au-pairs. The proposal takes the form of a Directive amending and recasting Directives 2004/114/EC and 2005/71/EC. Its overall objective is to support social, cultural and economic relationships between the EU and third countries, foster the transfer of skills and know-how and promote competitiveness while, at the same time, provide for safeguards ensuring fair treatment of these groups of third-country nationals.
· General context
The EU is facing important structural challenges of both demographic and economic nature. The working age population has practically stopped growing and over the next couple of years it will start shrinking. For both economic and demographic reasons the observed patterns of employment growth with emphasis on skilled labour will persist during the decade ahead. The EU is also facing a situation of innovation emergency. Europe is spending 0.8% of GDP less than the US and 1.5% less than Japan every year on Research & Development (R&D). Thousands of the best researchers and innovators have moved to countries where conditions are more favorable. Although the EU market is the largest in the world, it remains fragmented and not enough innovation-friendly. The Europe 2020 Strategy and its Innovation Union flagship initiative set the goal of increased investment in research and innovation, requiring an estimated extra one million more research jobs in Europe. Immigration from outside the EU is one source of highly skilled people, and third-country national students and researchers in particular are groups which are increasingly sought after and which the EU needs to actively attract. Third-country national students and researchers can contribute to a pool of well-qualified potential workers and human capital that the EU needs to cope with the above-mentioned challenges.
The EU Global Approach to Migration and Mobility (GAMM) sets the overarching framework of the EU’s external migration policy. It defines how the EU organises its dialogue and cooperation with non-EU countries in the area of migration and mobility. The GAMM aims to contribute – inter alia – to the achievement of the Europe 2020 Strategy, in particular through its objective of better organising legal migration and fostering well-managed mobility (alongside its other pillars dealing with irregular migration, migration and development and international protection). Particularly relevant in this context are the Mobility Partnerships, which offer a tailor-made bilateral frameworks for cooperation between the EU and selected non-EU countries (notably in the EU neighbourhood), potentially also containing measures and programmes for promoting the mobility of the groups addressed in this proposal for Directive.
Allowing third-country nationals to acquire skills and knowledge through a period of training in Europe encourages “brain circulation” and supports cooperation with third countries, which benefits both the sending and the receiving countries. Globalization calls for enhanced relationships between EU enterprises and foreign markets, while movements of trainees and au-pairs foster the development of human capital, result in mutual enrichment for the migrants, their country of origin and the host country and an improved mutual familiarity between cultures. However, in absence of a clear legal framework, there is also a risk of exploitation to which trainees and au-pairs are particularly exposed, with the subsequent risk of unfair competition.
With a view to better optimise those benefits and to properly tackle those risks, and taking account of the similarities of the challenges faced by these categories of migrants, the present proposal amends Council Directive 2004/114/EC on the conditions of admission of third-country nationals for the purposes of studies, pupil exchange, unremunerated training or voluntary service, extending its scope to remunerated trainees and au-pairs and making mandatory provisions on unremunerated trainees that are currently discretionary, as well as Council Directive 2005/71/EC on a specific procedure for admitting third-country nationals for the purposes of scientific research.
· Existing provisions in the area of the proposal
Council Directive 2004/114/EC provides common rules regarding the conditions of entry and stay of third-country national students. However, according to Article 3 of Directive 2004/114/EC, Member States are free to decide, on an optional basis, whether they apply the Directive to third-country nationals who apply to be admitted for the purposes of pupil exchange, unremunerated training or voluntary service.
The conditions for the admission of remunerated trainees are also addressed by the 1994 Council Resolution on limitations on admission of third-country nationals on the territory of the Member States for employment. It provides a general definition of trainees and a maximum period of stay.
Council Directive 2005/71/EC provides a specific procedure for admitting third-country nationals for the purposes of scientific research.
The recommendation of the European Parliament and of the Council of 28 September 2005[5] proposes measures to facilitate the issue by the Member States of uniform short-stay visas for researchers from third countries travelling within the Community for the purpose of carrying out scientific research.
The format of a residence permit for third-country national is laid down in EC Regulation (EC) No 1030/2002. It is applicable to this proposal.
As regards au-pairs, the European Agreement on 'au pair' Placement of 24 November 1969[6], drawn up by the Council of Europe, provides a set of European rules. However, the majority of Member States have not ratified this Agreement.
· Consistency with other policies and objectives of the Union
The provisions in this proposal are consistent with and supportive of the objectives of the Europe 2020 Strategy and the EU Global Approach to Migration and Mobility. In addition, setting up common admission procedures and securing a legal status for trainees and au-pairs can serve as a safeguard from exploitation.
This proposal is also in line with one of the objectives of the EU action on education, which is to promote the Union as a world centre of excellence for education and international relations and to share knowledge better around the world as a means of helping to disseminate the values of human rights, democracy and the rule of law.
The proposal also complies with the EU's development policy's focus on eradication of poverty and the achievement of the Millennium Development Goals. In particular, its provisions on mobility of trainees between the EU and home countries would allow reliable inflows of remittances and transfer of skills and investments.
This proposal has positive effects on fundamental rights, as it strengthens third-country nationals' procedural rights and recognises and safeguards the rights of remunerated trainees and au-pairs. In this respect, it is consistant with the rights and principles recognized by the Charter of Fundamental Rights, notably with Article 7 on the right to respect of private and family life, Article 12 on freedom of assembly and association, Article 15 on freedom to choose occupation and the right to engage in work, Article 15 i on equal working conditions, Article 21 on non-discrimination, Article 31 on fair and just working conditions, Article 34 on social security and social assistance and Article 47 on the right to an effective remedy and to a fair trial.
· Consultation of interested parties
Discussions with the Member States took place within the framework of meetings of the Committee on Immigration and Asylum (CIA). First, on the findings of the implementation reports and, secondly, in the context of the preparation of this initiative, where, in addition, Member States submitted their written contributions in response to questions circulated before the CIA meeting.
Consultation of relevant stakeholders included workshops organized by European Audiovisual Culture Education Agency (EACEA) with the Erasmus Mundus community on visa and on Erasmus Mundus Joint Doctorates, workshops and discussions with National Platforms of youth exchange organisations (including school pupil and volunteering organisations), and a workshop on the views of the research Community in a meeting of the EURAXESS bridgehead organizations[7].
Several workshops were organized by the European Migration Network (EMN) on international students' mobility, EMN Ad-hoc queries[8] as well as a large-scale study on: 'Immigration of International Students to the EU'.[9]
An online public consultation was launched on 1 June 2012 through IPM[10] and 1461 replies were received. A very large majority of respondents (91%) thought that the attractiveness of the EU as a destination for researchers should be improved, with 87% saying the same for students. For both groups the biggest issues were seen to be visas and residence permits. Over 70% of respondents thought that the attractiveness of the EU should also be improved for school pupils, volunteers and unremunerated trainees. There was no geographical bias between responses from within or outside the EU.
Finally, the relevant results of the public consultation of the European Research Area framework Communication[11] as well as the results of Erasmus Mundus Visa Survey of Erasmus Mundus Alumni and students carried out by the Erasmus Mundus Students and Alumni Association (EMA)[12] at the request of European Audiovisual, Education and Culture Agency (EACEA) were also taken into account.
· Collection and use of expertise
There was no need for external expertise in addition to the data collected as indicated above.
· Impact assessment
The following options were considered:
Different and diverging solutions with respect to admission conditions, in particular visa, would continue to be implemented by the Member States acting independently. The lack of clarity and transparency on these aspects would remain. Problems with procedural safeguards would continue, and conditions to exercise intra-EU mobility (in particular in the case of students) would remain restrictive, whereas remunerated trainees would not be covered at all by EU legislation. Similarly, regarding access to the labour market for students and researchers following graduation/finalisation of their studies/research, different approaches would continue to apply across the EU.
Option 2: Increased communication efforts (in particular in case of researchers), and strengthened enforcement of the current rules
This option includes better provision of and access to information to increase the transparency of existing rules and making them better used. There could also be increased efforts in raising awareness about best practices among Member States in admitting and protecting groups which are currently not covered by existing Directives, i.e. au pairs and remunerated trainees. A more systematic exercise of ensuring that Member States understand and respect their obligations under these Directives would be carried out.
This option mainly includes improvements for students, school pupils, volunteers and unremunerated trainees as it makes admission conditions comparable to those that apply for researchers and brings some of the rights to the standard enjoyed by researchers. This option would make rules for the currently optional groups of school pupils, volunteers and unremunerated trainees mandatory. Member States would be obliged to grant every facility to obtain the requisite visas to the third-country national (students and other categories) who has submitted an application and meets the admission conditions. There would also be changes regarding procedural guarantees, mainly through the introduction of time-limits that oblige Member States' authorities to decide on an application within 60 days. In exceptional circumstances, this time-limit could be extended by an additional 30 days. Students' right to work during their period of study would be extended to cover a minimum of 15 hours per week as of the first year of residence.
Option 4: Further improvement of admission conditions, rights also on intra-EU mobility and procedural guarantees; access to job-seeking following completion of studies or research project; extended scope to au-pairs and remunerated trainees
This option aims at a higher degree of ambition in improving the conditions and rights of the groups covered by existing Directives, extending the scope of the Directive to au-pairs and remunerated trainees and introducing specific admission conditions to ensure better protection for them. Member States would have the possibility to issue long-stay visas or residence permits, and they should, in case both types of authorizations would be used, require only the fulfillment of admission conditions mentioned in the Directive (so that the conditions remain the same irrespective of the type of authorization).
In case the third-country nationals' stay exceeds a period of one year, Member States issuing long-stay visas would have to issue residence permits after the first year. Intra-EU mobility provisions would be strengthened for researchers and students, and introduced for the first time for remunerated trainees. In addition, regarding intra-EU mobility, specific, more favorable rules would apply to beneficiaries of EU programmes including mobility measures such as Erasmus Mundus or Marie Curie.
Students would obtain the right to work for a minimum of 20 hours per week as of the first year of residence. After finalization of their studies/research, students and researchers would be allowed to stay on the territory to identify work opportunities for a period of 12 months. As for procedural guarantees, Member States would be obliged to decide on applications within 60 days (all groups), and within 30 days for Erasmus Mundus and Marie Curie fellows.
The analysis and comparison of the options suggest that there are problems that cannot be solved by improved communication efforts, and therefore require an update of the Directives.
Option 4 appears to be the most cost-effective option to meet the key objectives and brings about positive economic and social impacts. The main disadvantage of legislative changes would be the costs involved. Member States will have to make modifications to their legislative frameworks, mainly concerning authorisations to enter and stay, intra-EU mobility and time-limits to handle applications. At the same time the costs implied by option 4 would be relatively limited, and some Member States are already implementing some of the provisions foreseen.
Since the issues identified are similar for both Directives, and in order to provide more coherence and clarity of the EU rules, the most effective way to implement the preferred option is to combine the two Directives in a single legislative instrument. This will be carried out through a recast of both Directives, bringing them together in a single legislative act and proposing new substantial changes.
· Summary of the proposed action
The proposal establishes the conditions of entry and residence of third-country national researchers, students, pupils, remunerated and unremunerated trainees, volunteers and au pairs to the territory of the Member States for a period exceeding three months. The proposal introduces admission conditions for two groups of third-country nationals currently not covered by a legally binding EU legal framework, au pairs and remunerated trainees, to ensure their legal rights and protection. In the case of third-country national researchers, family admission is made more favourable, as well as access to the labour market by family members, and their intra-EU mobility.
The proposal provides that an applicant who satisfies all the conditions set out for admission to one of the Member States shall be granted a long-stay visa or residence permit. The proposal facilitates and simplifies intra-EU mobility for students and researchers, in particular for those under the Erasmus Mundus/Marie Curie programmes which will be expanded and see an increase in participation under the next Multiannual Financial Framework. The proposal increases the rights of students to work part-time and allows students and researchers, after finalization of studies/research, to stay on the territory to identify work opportunities for a period of 12 months.
Increased information and transparency are introduced, as well as time limits for decisions and improved procedural guarantees, such as written reasons for a decision and rights of appeal. Fees charged would have to be proportionate.
· Legal basis
Article 79 TFEU empowers the European Parliament and the Council, acting in accordance with the ordinary legislative procedure, to adopt measures in the following areas:
(a) The conditions of entry and residence, and standards on the issue by Member States of long-term visas and residence permits;
(b) The definition of the rights of third-country nationals residing legally in a Member State, including the conditions governing freedom of movement and of residence in other Member States.
· Subsidiarity principle
Immigration policy is a competence shared by the Union and the Member States. The principle of subsidiarity therefore applies, which involves ensuring that the objectives of the proposed action could not be achieved sufficiently by the Member States (necessity test), and considering whether and how these objectives could be better achieved by action on the part of the Union (European added value test).
The challenge to keep and improve the capacity to attract talent from outside of the EU has increased and is common to all Member States. Although each Member State could continue to have its own national system of admitting the third-country nationals groups concerned by this proposal, this would not achieve the general objective of increasing the attractiveness of the EU as a destination for talented migrants. Having one set of common admission and residence requirements rather than a fragmented situation with diverging national rules is clearly more efficient and simpler for potential applicants as well as for organizations involved than having to look into and deal with 27 different systems. In addition, the promotion of intra-EU mobility, one of the key objectives of this proposal, requires an EU-wide instrument.
With the increased number of initiatives targeting youth and stimulating cultural, social, educational people-to-people contacts with nationals of third countries and forms of informal training, the need for matching them with adequate immigration rules is even greater.
Finally, a minimum uniform level of protection and rights of third-country students, researchers and other groups should offer solid safeguards against the exploitation of certain vulnerable categories, such as remunerated trainees and au-pairs.
The EU added value of the existing Students and Researchers Directives has been proven over the years, and this proposal will lead to further improvements.
A transparent legal framework including appropriate safeguards to ensure a genuine transfer of skills would facilitate economic, social and cultural international relationships between the Member States and sending countries. As regards external aspects of migration policy, an EU instrument covering remunerated trainees will help further deepening of the Global Approach to Migration and Mobility, as it both provides transfers of skills and strengthens third countries´ commitment to fight irregular immigration thanks to additional legal migration routes. Concerning au-pairs, an EU framework would help to increase their protection.
One of the key elements of this proposal would be to better tap into the potential of students and researchers upon finalizing their studies/research. They constitute a future pool of highly-skilled workers as they speak the language and are integrated in the host society.
By addressing remunerated trainees who fall outside the scope of intra-corporate transferees, the proposal would complement the Directive on intra-corporate transferees which is currently being negotiated with the Council and the European Parliament.
Provisions aiming at clarifying and promoting rights and residing conditions would also contribute to the overall objective of enhancing the protection of fundamental rights.
Given all these considerations, it is considered that the proposal complies with the subsidiarity principle.
· Proportionality principle
The principle of proportionality applies, meaning that ‘the content and form of Union action shall not exceed what is necessary to achieve the objectives of the Treaties' - Article 5 of the Treaty on European Union. The proposal complies with the proportionality principle for the following reasons:
The instrument chosen is a Directive, which gives Member States a high degree of flexibility in terms of implementation.
The content of the action is limited to what is necessary to achieve its aim. The proposed rules concern admission conditions, procedures and authorisations (residence permits and long-stay visas), as well as rights of students, researchers, pupils, volunteers, trainees and au pairs, which are the areas that constitute elements of a common immigration policy under Article 79 TFEU. EU-wide rules already exist for some of these groups but need to be up-dated and improved, and the content of this proposal is limited to what is necessary to achieve the above aim.
· Choice of instrument
The proposed instrument is a Directive. It is the appropriate instrument for this action as it sets binding minimum standards but, at the same time, gives Member States the necessary flexibility. Furthermore it is the most appropriate instrument for bringing together in a single legislative act the two existing Directives through the recast of both existing Directives, in order to ensure a coherent legal framework for different groups of third country nationals coming to the EU.
Contents
- BUDGETARY IMPLICATIONS
- 2. CONSULTATION OF INTERESTED PARTIES AND IMPACT ASSESSMENT
- Option 1 (baseline): No change to the existing situation
- Option 2: Increased communication efforts (in particular in case of researchers), and strengthened enforcement of the current rules
- Option 3: Improvement of admission conditions, rights and procedural guarantees
- 3. LEGAL ASPECTS OF THE PROPOSAL
- 5. ADDITIONAL INFORMATION
- Article 1
- Article 2
- Article 3
- Article 4
- CHAPTER II - ADMISSION
- Article 6
- Articles 7, 8 and 9
- Articles 10
- Articles 11, 12, 13 and 14
- CHAPTER III - AUTHORISATIONS AND DURATION OF RESIDENCE
- CHAPTER IV - Grounds for refusal, withdrawal or non-renewal of authorisations
- CHAPTER V-RIGHTS
- Article 21
- Articles 22 and 23
- Article 24
- Article 25
- CHAPTER VI-MOBILITY BETWEEN MEMBER STATES
- Article 28
- CHAPTER VII- PROCEDURE AND TRANSPARENCY
- Articles 30 and 31
- CHAPTER VIII - FINAL PROVISIONS
- Article 33
- Article 36
- ê 2004/114/EC, 2005/71/EC (adapted)
The proposal has no implications for the EU budget.
· Transposition clause
The proposal includes a transposition clause.
· Explanatory documents accompanying the notification of transposition measures
The proposed Directive has a wide personal scope as regards the different third-country national groups that it covers (researchers, students, school pupils, trainees, volunteers and au-pairs). The proposal also contains a large number of legal obligations, extending the latter compared to the existing Directives 2005/71/EC and 2004/114/EC. Given this, and the fact that the proposal includes provisions on a number of groups not yet covered in a mandatory way by the current legal framework, explanatory documents accompanying the notification of transposition measures will be needed so that the transposition measures that the Member States have added to existing legislation are clearly identifiable.
· Detailed explanation of the proposal
CHAPTER I – GENERAL PROVISIONS
The proposal is part of the EU’s efforts to put in place a comprehensive immigration policy. It has two specific purposes. The first one is to set out the conditions of entry and residence of third-country nationals to the territory of the Member States for a period exceeding three months for the purposes of research, studies, pupil exchange, remunerated and unremunerated training, voluntary service and au pairing. The second is to set out the conditions of entry and residence of third-country national students and remunerated trainees in Member States other than the Member State which first grants the third-country national an authorisation on the basis of this Directive. The third one covers the conditions of entry and residence of third-country national researchers in Member States other than the Member State which first grants the third-country national an authorisation on the basis of this Directive.
This Article sets out the scope of the proposal, which applies to third-country nationals who apply to be admitted to the territory of a Member State for the purpose of research, studies, pupil exchange, remunerated or unremunerated training, voluntary service or au pairing. The optional provisions of the Students' Directive on pupils, unremunerated trainees and volunteers have been made mandatory and the general scope has been extended to cover remunerated trainees and au pairs.
Regarding the groups that are not covered by the proposal, the proposal very much follows the approach developed in Directive 2004/114/EC and 2005/71/EC. The proposal does not cover, as an example, EU citizens and their family members. As was the case with previous Directives 2004/114/EC and 2005/71/EC, it also does not cover third-country nationals who are EC long-term residents given their more privileged status and their specific type of residence permit, or refugees, those residing in a Member State on a strictly temporary basis in accordance with EC legislation or under commitments contained in international agreements, and other limited categories.
This Article sets out the definitions used in the proposal, which are to a large extent common to other existing migration Directives (most notably 2004/114/EC and 2005/71/EC). The definition of au-pairs is inspired by the 1969 European Agreement on 'au pair' Placement. The definition of remunerated trainee is based on that for unremunerated trainee, while highlighting the element of remuneration. The term 'authorisation' is used to cover both residence permits and long term visas.
This Article states that Member States may grant more favourable conditions for the persons to whom the proposal for Directive applies, however only in relation to certain specific provisions that concern family members of researchers, rights to equal treatment, economic activities and procedural safeguards, so as not to undermine the scope of the Directive.
Article 5
This Article lays down the general principle that an applicant who satisfies all the general and specific conditions for admission shall be granted a residence permit or a long-stay visa by the Member State where the application has been made. The reason for this is to avoid situations in which the applicant might be refused admission although he or she fulfils all the conditions but is not granted the necessary visa.
This Article lays down the general conditions which all applicants must fulfil in order to be admitted to a Member State, besides the specific conditions that apply to the different categories of third-country nationals laid down in the subsequent Articles. The general conditions are very much in line with those developed in the existing acquis on legal migration, and include valid documents, sickness insurance and minimum resources. Once the general conditions as well as the specific conditions of admission are fulfilled, applicants shall be entitled to an authorisation, meaning a long-stay visa and/or residence permit.
These Articles set out specific conditions of admission for third-country national researchers, which already exist in the Researchers' Directive, in particular the requirement that the research organisation be approved by the Member State, and that a hosting agreement be signed by both the approved research organisation and the researcher. This proposal explicitly lists the elements that should be contained in the hosting agreement. They are the title and purpose of the research project, the confirmation of the researcher that he or she undertakes to complete the research project, the confirmation of the organisation that it hosts the researcher so that he or she can complete the research project, the start and end date of the research project, information on the legal relationship between the research organization and the researcher and information on the working conditions of the researcher. For third-country national researchers to be aware of research organisations that can enter into hosting agreements, emphasis is placed on the need for the list of approved organisation to be publicly available and up-dated whenever a change occurs in the list.
This provision of Article 10 sets out the specific conditions of admission for third-country national students, similar to those already found in the Students Directive.
These provisions set out the specific conditions of admission for third-country national school pupils, remunerated and unremunerated trainees, volunteers and au-pairs, who need to show evidence of the organisation that is responsible for their exchange, training or, volunteering. Whereas school pupils, unremunerated trainees and volunteers were already included in Directive 2004/114/EC on an optional basis, remunerated trainees is an entirely new group of third-country nationals to be covered. The same applies to au-pairs. These two latter groups share similar characteristics with those already addressed by EU law. Both groups benefit from increased levels of protection. For au-pairs to be admitted there needs to be evidence that the host family accepts responsibility for example as far as subsistence and accommodation are concerned. The au-pair stay also needs to be based on an agreement between the au-pair and the host family defining his/her rights and obligations. For remunerated trainees the training programme, its duration, conditions of supervision and working conditions need to be specified. In order to avoid situations in which trainees are used as cheap labour, the host entity may be obliged to declare that the third-country national is not filling a job.
Articles 15, 16 and 17
These provisions set out the information that should be included on the third-country national's residence permit or long-term visa. Article 16 specifies that for researchers and students an authorisation should be granted for at least one year. For all other groups the authorisation is limited to one year as a rule, with the possibility for exceptions. This is in line with the durations applied under Directives 2005/71 and 2004/114. Furthermore, Article 17 enables Member States to provide additional information on the full lists of Member States where the third country national students or researchers intend go.
Articles 18, 19 and 20
These provisions lay down the mandatory and possible grounds for refusing, withdrawing or not renewing an authorisation, such as the general and specific conditions for admission no longer being met, false documents etc., which are standard conditions under the existing migration Directives.
This proposal introduces a specific chapter on rights for all groups covered by the proposal.
In order to ensure the fair treatment of third-country nationals falling under the scope of the Directive, this provision entitles them to equal treatment under the Single Permit Directive[13]. More favourable rights to equal treatment with nationals of the host Member State as regards branches of social security as defined in Regulation No 883/2004 on the coordination of social security schemes are maintained for third-country national researchers, without the possibility for the limitations laid down by the Single Permit Directive. Furthermore, third-country national school pupils, volunteers, unremunerated trainees and au-pairs will benefit of equal treatment rights with nationals of the host Member State as regards access to goods and services and the supply of goods and services made available to the public independently on whether Union or national law gives them access to the labour market .
Under these provisions third country national researchers and students are given the right to work, with Member States being able to set certain limits. Researchers, as was the case under Directive 2005/71, are allowed to teach in accordance with national legislation. Regarding students, whereas under Directive 2004/114/EC students were allowed to work for a minimum of 10 hours per week, this period has been increased to 20 hours. With respect to students' access to economic activities, Member States may continue take into consideration their labour market situation but this should be done in a proportionate way in order not to systematically endanger the right to work[14].
Article 24 introduces the possibility for students and researchers, if they fulfil the general admission conditions of the proposal (except for the condition on being a minor), to stay in the Member State for 12 months upon finalization of their studies/research in order to look for work or set up a business. A number of Member States already provide for this possibility but the amount of time may differ. The possibility to remain in the relevant Member State appears to be an important factor when third-country national students/researchers choose their country of destination. This provision thus has the potential to make the Member States more competitive in the search for talents on a global stage. This is an issue of common interest in the context of a declining working-age population and future skills needs and would be in line with the Entrepreneurship 2020 Action Plan[15]. It would however not be an automatic work permit, but Member States, could still apply the relevant authorization procedures. In a period of more than 3 and less than 6 months, Member States could ask the third-country nationals to provide documentation that they are genuinely seeking for a job (for example, copies of the letters and CVs sent to employers) or are in the process of setting up a business. After 6 months, they could also ask third- country nationals to provide evidence that they have a genuine chance of being engaged or of launching a business.
This Article includes specific provisions on the admission and access to the labour market of researchers' family members in derogation to Directive 2003/86/EC with a view to increase the EU attractiveness to third-country national researchers. Whether or not family members of researchers can have immediate access to the Member State concerned as well as to the labour market can play a role in the researcher's decision to be mobile or not.
Articles 26 and 27
These Articles set out the conditions under which researchers, students and trainees can move between the Member States, in order to facilitate such mobility. For researchers, under Directive 2005/71/EC, the period for which they are allowed to move to a second Member State on the basis of the hosting agreement concluded in the first Member State has been extended from 3 to 6 months. For students, provisions were introduced in the new proposal that also allow them to move to a second Member State for a period of up to 6 months on the basis of the authorisation granted by the first Member State. Specific rules apply to third-country nationals who come under EU mobility programmes, for example the current Erasmus Mundus or Marie Curie programmes, in order to simplify the exercise of mobility. This will limit situations in which third-country nationals who qualify for scholarships of fellowships under EU mobility programmes cannot take them up as they cannot enter the territory of the Member State concerned.
In line with the provisions of the Blue Card Directive, researchers' family members can move between Member States together with the researcher.
Article 29
This provision introduces a time-limit that obliges Member States to decide on the complete application for an authorisation and notify the applicant in writing within 60 days (applying for all groups), and within 30 days for Union programmes including mobility measures such as Erasmus Mundus and Marie Curie fellows. The current legal framework does not specify any time limit. Procedural guarantees include the possibility of a legal challenge against a decision rejecting an application as well as the requirement for the authorities to give reasons for such decisions in writing, and ensuring respect for the right to a legal remedy.
Recognising that availability of information is crucial for achieving the objectives of this proposal. Article 30 requires the Member States to make information available on the entry and residence conditions as set by this proposal, including on approved research organisations and on fees. In line with existing migration Directives, Article 31 explicitly states that Member States may charge fees for the processing of applications. In addition, in line with recent case-law by the European Court of Justice[16], Article 31 introduces a provision indicating that the amount of such fees should not endanger the fulfilment of the Directive's objectives.
Articles 32 to 38
Article 32 requires the Member States to establish national contact points to exchange information on third-country nationals covered by the proposal who move between Member States. Such national contact points already exist in relation to certain existing migration Directives such as the Blue Card Directive and have proved to be an efficient mechanism allowing technical communication between the Member States.
This provision requires the Member States to communicate to the Commission statistics on the numbers of third-country nationals granted authorisations under this proposal, in accordance with Regulation No 862/2007, with the possibility for additional statistics to be requested by the Commission.
This provision provides that the proposal formally repeals the existing Directives 2005/71/EC and 2004/114/EC on third-country national researchers and students.
The remaining provisions (Articles 34, 35, 37 and 38) are standard final provisions dealing with reporting, transposition, entry into force and addresses of the Directive.
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