A number of amendments are to be made to Council Directives 2004/114/EC (4) and 2005/71/EC (5). In the interests of clarity, those Directives should be recast.
(2)
This Directive should respond to the need identified in the implementation reports on Directives 2004/114/EC and 2005/71/EC to remedy the identified weaknesses, to ensure increased transparency and legal certainty and to offer a coherent legal framework for different categories of third-country nationals coming to the Union. It should therefore simplify and streamline the existing provisions for those categories in a single instrument. Despite differences between the categories covered by this Directive, they also share a number of characteristics which makes it possible to address them through a common legal framework at Union level.
(3)
This Directive should contribute to the Stockholm Programme's aim of approximating national legislation on the conditions for entry and residence of third-country nationals. Immigration from outside the Union is one source of highly skilled people, and students and researchers are in particular increasingly sought after. They play an important role in forming the Union's key asset, human capital, and in ensuring smart, sustainable and inclusive growth, and therefore contribute to the achievement of the objectives of the Europe 2020 Strategy.
(4)
The implementation reports on Directives 2004/114/EC and 2005/71/EC pointed out certain insufficiencies, mainly in relation to admission conditions, rights, procedural safeguards, students' access to the labour market during their studies and intra-EU mobility provisions. Specific improvements were also considered necessary regarding the optional categories of third-country nationals. Subsequent wider consultations have also highlighted the need for better job-seeking possibilities for researchers and students and better protection of au pairs who are not covered by Directives 2004/114/EC and 2005/71/EC.
(5)
For the gradual establishment of an area of freedom, security and justice, the Treaty on the Functioning of the European Union (TFEU) provides for measures to be adopted in the fields of asylum, immigration and the protection of the rights of third-country nationals.
(6)
This Directive should also aim at fostering people-to-people contacts and mobility, as important elements of the Union's external policy, notably vis-à-vis the countries of the European Neighbourhood Policy or the Union's strategic partners. It should allow for a better contribution to the Global Approach to Migration and Mobility and its Mobility Partnerships which offer a concrete framework for dialogue and cooperation between the Member States and third countries, including in facilitating and organising legal migration.
(7)
Migration for the purposes set out in this Directive should promote the generation and acquisition of knowledge and skills. It constitutes a form of mutual enrichment for the migrants concerned, their country of origin and the Member State concerned, while strengthening cultural links and enhancing cultural diversity.
(8)
This Directive should promote the Union as an attractive location for research and innovation and advance it in the global competition for talent and, in so doing, lead to an increase in the Union's overall competitiveness and growth rates while creating jobs that make a greater contribution to GDP growth. Opening the Union up to third-country nationals who may be admitted for the purpose of research is also part of the Innovation Union flagship initiative. Creating an open labour market for Union researchers and for researchers from third countries was also affirmed as a key aim of the European Research Area, a unified area in which researchers, scientific knowledge and technology circulate freely.
(9)
It is appropriate to facilitate the admission of third-country nationals applying for the purpose of carrying out a research activity through an admission procedure which does not depend on their legal relationship with the host research organisation and by no longer requiring a work permit in addition to an authorisation. This procedure should be based on collaboration between research organisations and the immigration authorities in Member States. It should give the former a key role in the admission procedure with a view to facilitating and speeding up the entry of third-country nationals applying for the purpose of carrying out a research activity in the Union while preserving Member States' prerogatives with respect to immigration policy. Research organisations, which Member States should have the possibility to approve in advance, should be able to sign either a hosting agreement or a contract with a third-country national for the purpose of carrying out a research activity. Member States should issue an authorisation on the basis of the hosting agreement or the contract if the conditions for entry and residence are met.
(10)
As the efforts to be made to achieve the target of investing 3 % of GDP in research largely concern the private sector, this sector should be encouraged, where appropriate, to recruit more researchers in the years to come.
(11)
In order to make the Union more attractive for third-country nationals wishing to carry out a research activity in the Union, their family members, as defined in Council Directive 2003/86/EC (6), should be allowed to accompany them and benefit from intra-EU mobility provisions. Those family members should have access to the labour market in the first Member State and, in the case of long-term mobility, in the second Member States, except in exceptional circumstances such as particularly high levels of unemployment where Member States should retain the possibility to apply a test demonstrating that the post cannot be filled from within the domestic labour market for a period not exceeding 12 months. With the exception of derogations provided for in this Directive, all the provisions of Directive 2003/86/EC should apply, including grounds for rejection or withdrawal or refusal of renewal. Consequently, residence permits of family members could be withdrawn or their renewal refused if the authorisation of the researcher they are accompanying comes to an end and they do not enjoy any autonomous right of residence.
(12)
Where appropriate, Member States should be encouraged to treat doctoral candidates as researchers for the purposes of this Directive.
(13)
Implementation of this Directive should not encourage a brain drain from emerging or developing countries. Measures to support researchers' reintegration into their countries of origin should be taken in partnership with the countries of origin with a view to establishing a comprehensive migration policy.
(14)
In order to promote Europe as a whole as a world centre of excellence for studies and training, the conditions for entry and residence of those who wish to come to the Union for these purposes should be improved and simplified. This is in line with the objectives of the agenda for the modernisation of Europe's higher education systems, in particular within the context of the internationalisation of European higher education. The approximation of the Member States' relevant national legislation is part of this endeavour. In this context and in line with the Council conclusions on the modernisation of higher education (7), the term ‘higher education’ encompasses all tertiary institutions which may include, inter alia, universities, universities of applied science, institutes of technology, grandes écoles, business schools, engineering schools, IUTs, colleges of higher education, professional schools, polytechnics and academies.
(15)
The extension and deepening of the Bologna Process launched through the Bologna Joint Declaration of the European Ministers of Education of 19 June 1999 has led to more comparable, compatible and coherent systems of higher education in participating countries but also beyond them. This is because Member States have supported the mobility of students and higher education institutions have integrated it in their curricula. This needs to be reflected through improved intra-EU mobility provisions for students. Making European higher education attractive and competitive is one of the objectives of the Bologna Declaration. The Bologna Process led to the establishment of the European Higher Education Area. Its three-cycle structure with easily readable programmes and degrees as well as the introduction of qualifications frameworks have made it more attractive for third-country nationals to study in Europe.
(16)
The duration and other conditions of preparatory courses for students covered by this Directive should be determined by Member States in accordance with their national law.
(17)
Evidence of acceptance of a third-country national by a higher education institution could include, among other possibilities, a letter or certificate confirming enrolment.
(18)
Third-country nationals who apply to be admitted as trainees should provide evidence of having obtained a higher education degree within the two years preceding the date of their application or of pursuing a course of study in a third country that leads to a higher education degree. They should also present a training agreement which contains a description of the training programme, its educational objective or learning components, its duration and the conditions under which the trainee will be supervised, proving that they will benefit from genuine training and not be used as normal workers. In addition, host entities may be required to substantiate that the traineeship does not replace a job. Where specific conditions already exist in national law, collective agreements or practices for trainees, Member States should be able to require third-country nationals who apply to be admitted as trainees to meet those specific conditions.
(19)
Trainee employees who come to work in the Union in the context of an intra-corporate transfer are not covered by this Directive, as they fall under the scope of Directive 2014/66/EU of the European Parliament and of the Council (8).
(20)
This Directive should support the aims of the European Voluntary Service to develop solidarity, mutual understanding and tolerance among young people and the societies they live in, while contributing to strengthening social cohesion and promoting young people's active citenship. In order to ensure access to the European Voluntary Service in a consistent manner across the Union, Member States should apply the provisions of this Directive to third-country nationals applying for the purpose of European Voluntary Service.
(21)
Member States should have the possibility to apply the provisions of this Directive to school pupils, volunteers other than those under the European Voluntary Service and au pairs, in order to facilitate their entry and residence and ensure their rights.
(22)
If Member States decide to apply this Directive to school pupils, they are encouraged to ensure that the national admission procedure for teachers exclusively accompanying pupils within the framework of a pupil exchange scheme or an educational project is coherent with the procedure for school pupils provided for in this Directive.
(23)
Au pairing contributes to fostering people-to-people contacts by giving third-country nationals an opportunity to improve their linguistic skills and develop their knowledge of and cultural links with the Member States. At the same time, third-country national au pairs could be exposed to risks of abuse. In order to ensure fair treatment of au pairs and address their specific needs, it should be possible for Member States to apply the provisions of this Directive regarding the entry and residence of au pairs
(24)
If third-country nationals can prove that they are in receipt of resources throughout the period of their stay in the Member State concerned that derive from a grant, a fellowship or a scholarship, a valid work contract, a binding job offer or a financial undertaking by a pupil exchange scheme organisation, an entity hosting trainees, a voluntary service scheme organisation, a host family or an organisation mediating au pairs, Member States should take such resources into account in assessing the availability of sufficient resources. Member States should be able to lay down an indicative reference amount which they regard as constituting ‘sufficient resources’ that might vary for each one of the respective categories of third-country nationals.
(25)
Member States are encouraged to allow the applicant to present documents and information in an official language of the Union, other than their own official language or languages, determined by the Member State concerned.
(26)
Member States should have the possibility to provide for an approval procedure for public or private research organisations or both wishing to host third-country national researchers or for higher education institutions wishing to host third-country national students. This approval should be in accordance with the procedures set out in the national law or administrative practice of the Member State concerned. Applications to approved research organisations or higher education institutions should be facilitated and should speed up the entry of third-country nationals coming to the Union for the purpose of research or studies.
(27)
Member States should have the possibility to provide for an approval procedure for respective host entities wishing to host third-country national pupils, trainees or volunteers. Member States should have the possibility to apply this procedure to some or all of the categories of the host entities. This approval should be in accordance with the procedures set out in the national law or administrative practice of the Member State concerned. Applications to approved host entities should speed up the entry of third-country nationals coming to the Union for the purpose of training, voluntary service or pupil exchange schemes or educational projects.
(28)
If Member States establish approval procedures for host entities, they should be able to decide to either allow admission only through approved host entities or to establish an approval procedure while also allowing admission through non-approved host entities.
(29)
This Directive should be without prejudice to the right of Member States to issue authorisations for the purpose of studies, research or training other than those regulated by this Directive to third-country nationals who fall outside its scope.
(30)
Once all the general and specific conditions for admission are fulfilled, Member States should issue an authorisation, within specified time limits. If a Member State issues residence permits only on its territory and all the conditions of this Directive relating to admission are fulfilled, the Member State should grant the third-country national concerned the requisite visa and should ensure that the competent authorities effectively cooperate for that purpose. In the event that the Member State does not issue visas, it should grant the third-country national concerned an equivalent permit allowing entry.
(31)
Authorisations should mention the status of the third-country national concerned. It should be possible for Member States to indicate additional information in paper format or store it in electronic format, provided this does not amount to additional conditions.
(32)
The different periods of duration of the authorisations under this Directive should reflect the specific nature of the stay of each category of third-country nationals covered by this Directive.
(33)
Member States should have the right to determine that the total duration of residence of students does not exceed the maximum duration of studies, as provided for in national law. In this respect, the maximum duration of studies could also include, if provided for by the national law of the Member State concerned, the possible extension of studies for the purpose of repeating one or more years of studies.
(34)
It should be possible for Member States to charge applicants for handling applications for authorisations and notifications. The level of the fees should not be disproportionate or excessive in order not to constitute an obstacle to the objectives of this Directive.
(35)
The rights granted to third-country nationals falling under the scope of this Directive should not depend on the form of the authorisation each Member State issues.
(36)
It should be possible to refuse admission for the purposes of this Directive on duly justified grounds. In particular, it should be possible to refuse admission if a Member State considers, on the basis of an assessment of the facts in an individual case and taking into account the principle of proportionality, that the third-country national concerned is a potential threat to public policy, public security or public health.
(37)
The objective of this Directive is not to regulate the admission and residence of third-country nationals for the purpose of employment and it does not aim to harmonise national laws or practices with respect to workers' status. It is possible, nevertheless, that in some Member States specific categories of third-country nationals covered by this Directive are considered to be in an employment relationship on the basis of national law, collective agreements or practice. Where a Member State considers third-country national researchers, volunteers, trainees or au pairs to be in an employment relationship, that Member State should retain the right to determine volumes of admission of the category or categories concerned in accordance with Article 79(5) TFEU.
(38)
Where a third-country national researcher, volunteer, trainee or au pair applies to be admitted to enter into an employment relationship in a Member State, it should be possible for that Member State to apply a test demonstrating that the post cannot be filled from within the domestic labour market.
(39)
As regards students, volumes of admission should not apply since, even if they are allowed to work during their studies in accordance with the conditions provided for in this Directive, they seek admission to the territory of the Member States to pursue as their main activity a full-time course of study which could encompass a compulsory training.
(40)
Where, after having been admitted to the territory of the Member State concerned, a researcher, volunteer, trainee or au pair applies to renew the authorisation to enter into or continue to be in an employment relationship in the Member State concerned, with the exception of a researcher who continues the employment relationship with the same host entity, it should be possible for that Member State to apply a test demonstrating that the post cannot be filled from within the domestic labour market.
(41)
In case of doubts concerning the grounds of the application for admission, Member States should be able to carry out appropriate checks or require evidence in order to assess, on a case by case basis, the applicant's intended research, studies, training, voluntary service, pupil exchange scheme or educational project or au pairing and fight against abuse and misuse of the procedure set out in this Directive.
(42)
Where the information provided is incomplete, Member States should inform the applicant within a reasonable period of the additional information that is required and set a reasonable deadline for providing it. Where additional information has not been provided within that deadline, the application could be rejected.
(43)
National authorities should notify the applicant of the decision on the application. They should do so in writing as soon as possible and at the latest within the period specified in this Directive.
(44)
This Directive aims to facilitate intra-EU mobility for researchers and students, inter alia by reducing the administrative burden related to mobility in several Member States. For this purpose, this Directive sets up a specific intra-EU mobility scheme whereby a third-country national who holds an authorisation for the purpose of research or studies issued by the first Member State is entitled to enter, stay and carry out part of the research activity or studies in one or several second Member States in accordance with the provisions governing mobility under this Directive.
(45)
In order to enable researchers to move easily from one research organisation to another for the purpose of research, their short-term mobility should cover stays in second Member States for a period of up to 180 days in any 360-day period per Member State. Long-term mobility for researchers should cover stays in one or several second Member States for a period of more than 180 days per Member State. Family members of researchers should be entitled to accompany the researcher during mobility. The procedure for their mobility should be aligned to that of the researcher they accompany.
(46)
As regards students who are covered by Union or multilateral programmes or an agreement between two or more higher education institutions, in order to ensure continuity of their studies, this Directive should provide for mobility in one or several second Member States for a period of up to 360 days per Member State.
(47)
Where a researcher or a student moves to a second Member State on the basis of a notification procedure and a document is necessary to facilitate access to services and rights, it should be possible for the second Member State to issue a document to attest that the researcher or the student is entitled to stay on the territory of that Member State. Such a document should not constitute an additional condition to benefit from the rights provided for in this Directive and should only be of a declaratory nature.
(48)
While the specific mobility scheme established by this Directive should set up autonomous rules regarding entry and stay for the purpose of research or studies in Member States other than the one that issued the initial authorisation, all the other rules governing the movement of persons across borders as laid down in the relevant provisions of the Schengen acquis should continue to apply.
(49)
Where the authorisation is issued by a Member State not applying the Schengen acquis in full and the researcher, his or her family members or the student, in the framework of intra-EU mobility, crosses an external border within the meaning of Regulation (EU) 2016/399 of the European Parliament and of the Council (9), a Member State should be entitled to require evidence proving that the researcher or the student is moving to its territory for the purpose of research or studies or that the family members are moving to its territory for the purpose of accompanying the researcher in the framework of mobility. In addition, in case of crossing of an external border within the meaning of Regulation (EU) 2016/399, the Member States applying the Schengen acquis in full should consult the Schengen information system and should refuse entry or object to the mobility for persons for whom an alert for the purpose of refusing entry or stay, as referred to in Regulation (EC) No 1987/2006 of the European Parliament and of the Council (10), has been issued in that system.
(50)
This Directive should allow second Member States to request that a researcher or a student, who moves on the basis of an authorisation issued by the first Member State and does not or no longer fulfils the conditions for mobility, leaves their territory. Where the researcher or the student has a valid authorisation issued by the first Member State, the second Member State should be able to request that researcher or student to go back to the first Member State in accordance with Directive 2008/115/EC of the European Parliament and of the Council (11). Where the mobility is allowed by the second Member State on the basis of the authorisation issued by the first Member State and that authorisation is withdrawn or has expired during the period of mobility, it should be possible for the second Member State to either decide to return the researcher or the student to a third country, in accordance with Directive 2008/115/EC, or request without delay the first Member State to allow re-entry of the researcher or student to its territory. In this latter case, the first Member State should issue the researcher or student with a document allowing re-entry to its territory.
(51)
Union immigration policies and rules, on the one hand, and Union policies and programmes favouring mobility of researchers and students at Union level, on the other hand, should complement each other more. When determining the period of validity of the authorisation issued to researchers and students, Member States should take into account the planned mobility to other Member States, in accordance with the provisions on mobility. Researchers and students covered by Union or multilateral programmes that comprise mobility measures or agreements between two or more higher education institutions should be entitled to receive authorisations covering at least two years, provided that they fulfil the relevant admission conditions for that period.
(52)
In order to allow students to cover part of the cost of their studies and, if possible, to gain practical experience, they should be given, during their studies, access to the labour market of the Member State where the studies are undertaken, under the conditions set out in this Directive. Students should be allowed to work a certain minimum amount of hours as specified in this Directive for that purpose. The principle of access for students to the labour market should be the general rule. However, in exceptional circumstances, Member States should be able to take into account the situation of their national labour markets.
(53)
As part of the drive to ensure a well-qualified workforce for the future, students who graduate in the Union should have the possibility to remain on the territory of the Member State concerned for the period specified in this Directive with the intention to identify work opportunities or to set up a business. Researchers should also have that possibility upon completion of their research activity as defined in the hosting agreement. In order to be issued a residence permit for that purpose, students and researchers may be asked to provide evidence in accordance with the requirements of this Directive. Once Member States issue them such a residence permit, they cease to be considered as researchers or students within the meaning of this Directive. Member States should be able to check, after a minimum time period established in this Directive, if they have a genuine chance of being employed or of launching a business. This possibility is without prejudice to other reporting obligations provided for in national law for other purposes. The authorisation issued for the purpose of identifying work opportunities or setting up a business should not grant any automatic right of access to the labour market or to set up a business. Member States should retain their right to take into consideration the situation of their labour market when the third-country national, who was issued an authorisation to remain on the territory for the purpose of job searching or to set up a business, applies for a work permit to fill a post.
(54)
The fair treatment of third-country nationals covered by this Directive should be ensured in accordance with Article 79 TFEU. Researchers should enjoy equal treatment with nationals of the Member State concerned as regards Article 12(1) and (4) of Directive 2011/98/EU of the European Parliament and of the Council (12) subject to the possibility for that Member State to limit equal treatment in the specific cases provided for in this Directive. Directive 2011/98/EU should continue to apply to students, including the restrictions provided for in that Directive. Directive 2011/98/EU should apply to trainees, volunteers and au pairs when they are considered to be in an employment relationship in the Member State concerned. Trainees, volunteers and au pairs, when they are not considered to be in an employment relationship in the Member State concerned, as well as school pupils, should enjoy equal treatment with nationals of the Member State concerned as regards a minimum set of rights as provided for in this Directive. This includes access to goods and services, which does not cover study or vocational grants or loans.
(55)
Equal treatment as granted to researchers and students, as well as trainees, volunteers and au pairs when they are considered to be in an employment relationship in the Member State concerned, includes equal treatment in respect of those branches of social security listed in Article 3 of Regulation (EC) No 883/2004 of the European Parliament and of the Council (13). This Directive does not harmonise the social security legislation of Member States. It is limited to applying the principle of equal treatment in the field of social security to the third-country nationals falling within its scope. In addition, this Directive does not grant rights in relation to situations which lie outside the scope of Union law, such as in relation to family members residing in a third country. That should not affect, however, the right of survivors who derive rights from third-country nationals falling under the scope of this Directive, where applicable, to receive survivors' pensions when residing in a third country.
(56)
In many Member States, the right to family benefits is conditional upon a certain connection with that Member State since the benefits are designed to support a positive demographic development in order to secure the future work force in that Member State. Therefore, this Directive should not affect the right of a Member State to restrict, under certain conditions, equal treatment in respect of family benefits when the researcher and the accompanying family members are staying temporarily in that Member State.
(57)
In the event of mobility between Member States, Regulation (EU) No 1231/2010 of the European Parliament and of the Council (14) applies. This Directive should not confer more rights than those already provided for in existing Union law in the field of social security for third-country nationals who have cross-border interests between Member States.
(58)
This Directive should be applied without prejudice to more favourable provisions contained in Union law and applicable international instruments.
(59)
The residence permits provided for in this Directive should be issued by the competent authorities of the Member State using the uniform format as laid down in Council Regulation (EC) No 1030/2002 (15).
(60)
Each Member State should ensure that adequate and regularly updated information is made available to the general public, notably on the internet, concerning the host entities approved for the purposes of this Directive and the conditions and procedures for admission of third-country nationals to the territory of the Member States for the purposes of this Directive.
(61)
This Directive respects the fundamental rights and observes the principles recognised by the Charter of Fundamental Rights of the European Union, in accordance with Article 6 of the Treaty on European Union (TEU).
(62)
Member States should give effect to the provisions of this Directive without discrimination on the basis of sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinions, membership of a national minority, property, birth, disability, age or sexual orientation.
(63)
In accordance with the Joint Political Declaration of 28 September 2011 of Member States and the Commission on explanatory documents (16), Member States have undertaken to accompany, in justified cases, the notification of their transposition measures with one or more documents explaining the relationship between the components of a directive and the corresponding parts of national transposition instruments. With regard to this Directive, the legislator considers the transmission of such documents to be justified.
(64)
Since the objective of this Directive, namely to determine the conditions of entry and residence of third-country nationals for the purposes of research, studies, training and European Voluntary Service, as mandatory provisions, and pupil exchange, voluntary service other than the European Voluntary Service or au pairing, as optional provisions, cannot be sufficiently achieved by the Member States and can rather, by reason of its scale or effects, be better achieved at Union level, the Union may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 TEU. In accordance with the principle of proportionality as set out in that Article, this Directive does not go beyond what is necessary to achieve that objective.
(65)
In accordance with Articles 1 and 2 and Article 4a(1) of Protocol No 21 on the position of the United Kingdom and Ireland in respect of the area of freedom, security and justice, annexed to TEU and TFEU, and without prejudice to Article 4 of that Protocol, those Member States are not taking part in the adoption of this Directive and are not bound by it or subject to its application.
(66)
In accordance with Articles 1 and 2 of the Protocol No 22 on the position of Denmark annexed to TEU and TFEU, Denmark is not taking part in the adoption of this Directive and is not bound by it or subject to its application.
(67)
The obligation to transpose this Directive into national law should be confined to those provisions which represent a substantive amendment as compared to Directives 2004/114/EC and 2005/71/EC. The obligation to transpose the provisions which are unchanged arises under those Directives.
(68)
This Directive should be without prejudice to the obligations of the Member States relating to the time limits for transposition into national law and the dates of application of the Directives set out in Annex I, Part B,
