Proposal for a COUNCIL RECOMMENDATION to facilitate the admission of third-country nationals to carry out scientific research in the European Community

(presented by the Commission)

EXPLANATORY MEMORANDUM

The reasons why it is necessary to introduce the measures contained in the recommendation in advance of the transposal of the directive have already been explained in the Communication. The proposal for a recommendation covers four areas in which the Member States are asked progressively to adopt measures to facilitate the admission of researchers from non-member countries. These are admission for the purposes of research, the issue of residence permits, family reunification and operational cooperation between Member States and the Commission. In each of these areas specific measures have been identified and are being presented to the Council for adoption with a view to being implemented by the Member States. The aim is for a first set of measures to be agreed within a year of the adoption of the recommendation by the Council.

The legal base for the proposed recommendation has been chosen in the light of the purpose of the four areas covered and set out below. All fall under Article 63 of the EC Treaty. As in the case of the directive, Denmark will not take part in the adoption of the proposal, and the recommendation will not be binding upon or applicable to Denmark, in accordance with Articles 1 and 2 of the Protocol on the position of Denmark annexed to the Treaty on European Union and the Treaty establishing the European Community. Nor will it apply to the United Kingdom and Ireland, under Articles 1 and 2 of the Protocol on the position of the United Kingdom and Ireland, unless these countries decide otherwise, according to the arrangements laid down in the Protocol.

Given the urgency and importance of these measures in the light of the objectives laid down at the Lisbon European Council, they can more easily be achieved at Community level because of their scope and impact.

COMMENTS ON THE MEASURES

1. admission for the purposes of research

The first set of measures in the recommendation relate to access to research posts on the labour market. They seek to ensure that researchers from third countries have rapid and easy access to research posts without any time limits.

a) The first measure concerns work permits. Given that there is a recognised shortage of researchers in the European Union and demand for researchers in the EU will increase in future, in line with the European Council's objectives, cited in the Communication, there is no longer any need to assess the labour market before allowing a third-country national to occupy a research post. The abolition of work permits will help to speed up the admission procedure for researchers in the EU. Before proceeding to the full-scale abolition envisaged by the directive, the Member States are asked to choose between waiving permit requirements or granting permits automatically, depending on the formula that best suits the way the administrations responsible for employment and immigration policies cooperate.

b) For the same reasons, researchers from third countries should not be subject to quota restrictions. The recommendation does not deal with the use of quotas by the Member States, but proposes that third-country nationals applying for research posts should not have their admission to the country restricted by such quotas if they do exist.

c) Similarly, access to research posts should not be subject to a maximum time limit, although this would not prevent residence permits issued to researchers being for a limited period, provided there were no restrictions on renewal. The recommendation provides in this context for a derogation in the case of measures aimed at counteracting the brain drain, if the policy of the Member State links access to research posts to the researchers' return to their native country in order to develop the knowledge they have gained there.

2. Residence permit

The second set of measures relate to the duration and issue of residence permits.

a) If the European Union is to be able to attract researchers from third countries the procedure for issuing residence permits must be quick and straightforward. The recommendation therefore suggests that Member States set a target of issuing permits within thirty days.

b) The second measure relating to residence permits is the counterpart to the measure relating to the length of admission to the labour market. The aim is to abolish time limits and ensure that researchers' residence permits can in principle always be renewed. As in the case of work permits, the recommendation allows derogations in connection with measures to counteract the brain drain.

c) The third measure seeks to ease the smooth the way for the transposal and application of the directive. As the system it introduces gives a major role to research organisations in the procedure for issuing residence permits, the recommendation suggests that Member States harmonise their procedures without waiting for the new mechanism. The transition will be important for building a relationship of trust between the research organisations and the immigration authorities in the Member States, which will be essential for implementing the directive. This increasing involvement could, for example, take the form of checking the researcher's status, evaluating the research project (particularly the funding aspects), evaluating the researcher's resources during his or her stay and submitting the application for a residence permit for the researcher, as the Member State saw fit.

3. Family reunification

This is a very important factor for researchers from third countries who plan to settle in Europe. The difficulty of bringing their families with them or the fact that a family member might be unable to find employment are serious obstacles to researchers' mobility and may lead them to opt for a different destination. It is therefore essential to make it easier for family members of researchers admitted into the European Union to enter the territory and reside there. Given that the Directive on the right to family reunification was formally adopted on 22 September 2003, it was felt that no further legislation should be passed on this subject. The matter must, therefore, be dealt with in the recommendation, which calls on Member States to adopt various measures that are more favourable than the Directive on family reunification.

a) Member States that would not authorise the reunification of family members in cases where it is discretionary only, are asked to facilitate their admission if the person applying for reunification is a researcher.

b) Member States are recommended not to use as grounds for rejecting a researcher's application for family reunification the fact that the application was made when the family members were already legally present on the territory. The Directive on the right to family reunification allows for the possibility of accepting such applications, and the recommendation allows researchers this option more generally. The efforts to facilitate the admission of researchers, including the proposal to allow them to submit applications for admission on the spot, could be compromised if requests for family reunification were refused when the family members were already in the country. Such a refusal would then seem disproportionate.

c) The possibility of the researcher's family members being able to work is obviously a key factor in the researcher's decision as to whether or not to settle in Europe. In the interests of coherence, it is proposed that family members receive the most favourable treatment given to third-country nationals.

d) This measure relates to the length of the procedure for issuing residence permits to family members. As in the case of the researchers themselves, the recommendation calls on Member States to comply with a shorter deadline than that laid down in their domestic law for family reunification under the regular provisions and, in any case, a period of less than the nine-month maximum laid down by the directive.

e) On similar grounds of speed and international competitiveness, the recommendation calls on Member States not to impose a waiting period for applications submitted by researchers.

4. Operational cooperation

The final section of the recommendation contains a series of administrative measures across the board, aimed at facilitating the implementation of the recommendation and, ultimately, the directive.

a) Member States are asked to inform the Commission about any measures they adopt to facilitate the entry and residence of researchers from third countries.

b) In the interests of a better understanding of the movements of people involved, Member States are encouraged to collect and pass on to the Commission statistics on the residence permits they issue to researchers and their families.

c) to f) With a view to facilitating the admission of researchers and identifying the specific obstacles that arise in practice and the solutions that can be found to them, points 3, 4 and 5 of the recommendation provide for the designation of contact persons for the admission of researchers from third countries in the competent ministries (immigration and research) and embassies, who would be able to provide comprehensive information to third-country nationals applying for research posts in the European Union. These special duties could be assigned to an existing member of staff. Research organisations are also asked in point 6 to designate a contact person in their midst to brief researchers from third countries and promote cooperation with the Member State's immigration authorities, given the role they will play in the admission procedure in future, under the terms of the directive.

g) Finally, Member States are encouraged to network. This should be helped by the efforts already made with the launch of the European Researchers' Mobility Portal on the Internet and the future creation of the network of mobility centres covering 33 countries, which should become operational at the beginning of 2004.

2004/0062 (CNS)

Proposal for a COUNCIL RECOMMENDATION to facilitate the admission of third-country nationals to carry out scientific research in the European Community

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Community, and in particular Article 63 thereof,

Having regard to the Commission proposal [1],

[1] OJ C , , p. .

Having regard to the Opinion of the European Parliament [2],

[2] OJ C , , p. .

Having regard to the Opinion of the European Economic and Social Committee [3],

[3] OJ C , , p. .

Whereas:

(1) With a view to consolidating and restructuring European research policy the Commission decided in January 2000 [4] that it was necessary to create a European research area as the centrepiece of future action by the Community in this area.

[4] COM (2000) 6, 18 January 2000.

(2) The Lisbon European Council, endorsing the European research area, set the Community the target of becoming the most competitive and dynamic knowledge-based economy in the world by the year 2010.

(3) The globalisation of the economy calls for greater mobility for researchers, something which was recognised by the European Community's sixth Framework Programme for Research when it opened up its programmes more to researchers from outside the European Union.

(4) The number of researchers which the Community will need if it is to meet the target set by the Barcelona European Council of investing 3% of GDP in research is put at 700 000. This target must be met through a series of interlocking measures, such as making scientific careers more attractive to young people, increasing the opportunities for training and mobility in research, improving career prospects for researchers within the Community and opening up the Community to third-country nationals who might be admitted for the purposes of research.

(5) Pending the adoption of a directive to help achieve these targets by introducing a procedure for the admission of third-country nationals to carry out research, this recommendation calls on Member States to facilitate the admission of such individuals already.

(6) Because of the shortage of researchers in the Community and the need to facilitate their admission, steps should be taken to promote access to research posts in the labour market, for example by waiving work permit requirements.

(7) In order to be competitive and attractive at international level, Member States should simplify and speed up their procedures for issuing and renewing visas and residence permits for researchers.

(8) The implementation of this recommendation should not encourage a brain drain from the emerging economies or developing countries. Flanking measures aimed at encouraging the integration of researchers in their countries of origin and promoting mobility among researchers should therefore be taken in these cases, as part of the partnership with the countries of origin with a view to establishing a global migratory policy.

(9) Because matters relating to family reunification are a crucial factor in researchers' decisions to choose the Community as the location for their research, Member States should retain or adopt provisions that are more favourable than those under Council Directive 2003/86 of 22 September 2003 on the right to family reunification [5].

[5] OJ L 251, 3.10.2003, p.12.

(10) The exchange of information and best practice should be encouraged in order to improve admission procedures for researchers. This recommendation also identifies contacts between the competent authorities and networking as factors contributing to improvement.

(11) This recommendation respects fundamental rights and complies with the principles laid down, for example, in the Charter of Fundamental Rights of the European Union.

(12) In accordance with Articles 1 and 2 of the Protocol on the position of Denmark, annexed to the Treaty on European Union and the Treaty establishing the European Community, Denmark will not take part in the adoption of this recommendation and is not affected by it,

HEREBY RECOMMENDS:

1) in the area of admission for the purpose of carrying out research:

a) encourage the admission of researchers into the Community, either by exempting them from work permit requirements or by providing for permits to be issued automatically;

b) refrain from using quotas to restrict the admission of third-country nationals for research posts;

c) guarantee third-country nationals the possibility of working as a researcher without any maximum time limit, save where an exception is justified by the needs of the researchers' country of origin;

2) in the area of residence permits:

a) set a deadline of 30 days as the target for issuing residence permits in response to applications from third-country nationals for purposes of research;

b) guarantee third-country nationals working as researchers that their residence permits will be renewed indefinitely, save where an exception is justified by the needs of the researchers' country of origin;

c) gradually involve the research organisations in the admission procedure for researchers;

3) in the area of family reunification:

a) encourage the admission of family members of researchers from third countries where no obligation to admit them exists;

b) allow researchers from third countries and members of their family to apply for family reunification when the family members are already legally on their territory;

c) allow the family members of researchers from third countries who are admitted under the family reunification arrangements the most favourable treatment granted to third-country nationals as regards access to their labour market;

d) set a shorter deadline for replying to the request for admission of a family member of a researcher from a third country than that specified in domestic law and, in any case, shorter than the nine-month deadline laid down in Article 5(4) of Directive 2003/86;

e) refrain from imposing waiting periods on family members of researchers from third countries;

4) in the area of operational cooperation:

a) inform the Commission about the measures they have adopted to facilitate the admission of researchers from third countries;

b) gather statistics on the number of residence permits they issue to researchers from third countries and their family members;

c) designate a contact person within the ministry that deals with immigration and, where necessary, within their regional or local administration, who would be responsible for the admission of researchers from third countries

d) designate a contact person within the ministry that deals with research who would be responsible for the admission of researchers from third countries;

e) designate a contact person within their embassies who would be responsible for the admission of researchers from third countries;

f) encourage research organisations to designate a contact person who would be responsible within the organisation for the admission of researchers from third countries;

g) ensure that the people responsible for the admission of researchers from third countries within their administrations and research organisations network at national level.

Done at Brussels,

For the Council

The President