TABLE OF CONTENTS

1........... Introduction and background. 2

2........... Procedural issues. 4

2.1. ...... Organisation and timing. 4

2.2. ...... Consultation and expertise. 5

2.3. ...... Scrutiny by the Commission Impact Assessment Board. 7

3........... Problem definition. 8

3.1. ...... General problems. 8

3.1.1. ... Problems with the current rules. 8

3.1.2 .... Issues related to groups not covered by the scope of the existing Students Directive. 9

3.1.3. ... Wider considerations. 11

3.2. ...... Specific problems. 13

3.2.1 .... Difficulties in admission conditions. 13

3.2.2. ... Lack of synergy and consistency between EU migration rules and EU funding programmes such as Erasmus Mundus and Marie Curie. 15

3.2.3. ... Shortcomings in procedural guarantees. 16

3.2.4. ... Difficulties to access the labour market 18

3.2.5. ... Difficulties in exercising intra-EU mobility. 19

3.2.6. ... Risk of exploitation and vulnerability of groups currently not covered. 19

3.3........ Possible evolution of the problems all things being equal 20

3.4........ EU right to act and subsidiarity. 22

4........... Objectives. 25

4.1........ General policy objectives. 25

4.2........ Specific and operational objectives. 25

4.2.1..... Improve the conditions of admission. 26

4.2.2. .. Increase coherence of EU migration rules with EU mobility programmes. 26

4.2.3. ... Improve procedural guarantees. 26

4.2.4..... Improve access to the labour market 26

4.2.5..... Improve intra-EU mobility. 27

4.2.6. ... Provide for coherent provisions ensuring protection of au pairs and remunerated trainees. 27

5........... Policy Options. 27

5.1........ Option 1 (baseline): No changes to the existing situation. 27

5.2........ Option 2: Increased communication efforts (in particular in case of researchers), and strengthened enforcement of the current rules. 29

5.3........ Option 3: Improvement of admission conditions, rights and procedural guarantees. 30

5.4 ....... Option 4: Further improvement of admission conditions, rights also on intra-EU mobility and procedural guarantees; labour market access following completion of studies or research project; extended scope to au-pairs and remunerated trainees. 31

6........... Analysis of impacts. 33

7........... Comparison of the options. 42

8........... Monitoring and evaluation. 47

8.1........ Indicators. 47

8.2........ Monitoring. 48

8.3........ Transposition. 49

1 Introduction and background

This report assesses the impact of options to reform the EU framework regulating the access and rights of researchers, students, school pupils, volunteers, unremunerated and remunerated trainees and au pairs into the EU. It accompanies the Commission proposal for a recast of Directives 2004/114/EC of 13 December 2004 and 2005/71/EC[1] of 12 October 2005[2] which constitute the legal basis for the EU policy for researchers, students, school pupils, volunteers and unremunerated trainees.

Policy context

The EU is tasked by the Treaty with developing a common immigration policy[3]. According to the competences conferred by the Treaty, over the years a number of Directives have been adopted which regulate the admission and rights of different categories of third-country nationals[4] into the EU. Further to the amendments introduced by the Treaty of Lisbon[5], EU legislation may cover the conditions of entry and residence, and standards on the issue by Member States of long-term visas and residence permits as well as definition of rights of third country nationals residing legally in a Member State, including conditions governing freedom of movement and residence in other Member States. The legislation falls under the ordinary legislative procedure.

Having a coordinated and transparent legislative framework makes the EU more accessible and attractive and, at the same time, seeks to ensure fair treatment of third country nationals and guarantee certain rights, including those resulting from the Charter of Fundamental Rights of the European Union.

The Students Directive sets out the conditions for admission of third-country nationals to the territory of the Member States for the purposes of studies, pupil exchange, unremunerated training or voluntary service for stays exceeding three months[6]. Once the applicants have met the relevant conditions, they are entitled to a residence permit, and the Directive calls for timely issuance of a visa[7] in order to allow initial entry into the territory of a Member State.

The Directive entitles students, under certain conditions, to move within the EU in order to follow or complement their studies in another Member State, the so-called intra-EU mobility, coupled by the Member States' obligation imposed by the Directive to facilitate intra-EU mobility, and to be employed in the host EU State or to exercise self-employed activity.

The right to intra-EU mobility is not available to all third country national students but depends, amongst other conditions, on a student’s participation in a Union or bilateral exchange programme, or on them having been allowed entry to an EU State as a student for not less than two years. This right is particularly relevant for the effective implementation of the Union's mobility programmes such as Erasmus Mundus.

The Researchers Directive provides for a fast track procedure for the admission of non-EU researchers for stays of more than three months if they have a “hosting agreement” with a research organisation. When a researcher receives a residence permit, it automatically grants the right to work. Moreover, immediate family reunification is allowed. Once such a permit is granted, the researcher is also free to travel between most Schengen countries and Ireland (the Directive does not apply to the United Kingdom and Denmark) for up to three months in order to carry out the research project.

In 2011 the Commission presented implementation reports on both Directives which in combination with other evidence in the form of reports, queries or complaints showed that in order to reap the benefits that well-managed migration can bring, the EU needs to adapt its migration policy framework. On this basis, the Commission announced its plan to amend both Directives to facilitate the admission of the groups of migrants concerned and to increase the EU's attractiveness as a place of destination for study and research as well as other cultural and social exchanges. This is in line with a range of policy initiatives and operational measures the Commission has already presented on migration, mobility, integration and international protection in its Communications of 4 and 24 May 2011[8] and which were fully endorsed by the European Council in June 2011.

The importance of the legislative framework for the groups concerned is not confined to immigration policy. The link between migration policy and promoting competitiveness and growth has been identified as one of the areas in which further action is needed[9]. Attracting the best minds to the EU for research and innovation has also been singled out as a priority in the Innovation Union flagship initiative which raises the need for one million new research jobs[10]. The initiative will also be an important element supporting some of the objectives of EHEA and the underlying Bologna Process[11], as well as the European Research Area and EU-funded programmes on mobility of third country nationals into and within the EU.

Any legislative proposal in the field of migration should also be seen in the wider context of the EU's external migration policy and its dialogue and cooperation with third countries in this area, as defined by the renewed EU Global Approach to Migration and Mobility (GAMM)[12]. One particular issue in this context is the need for the EU to reconcile its interests and objectives in promoting inward researchers' and students mobility with its confirmed commitment to assist affected developing countries addressing brain drain challenges in critical sectors.

Fostering people-to-people contacts and engagement in the area of education are important elements of the EU external migration policy across the globe, and notably vis-à-vis countries in the EU’s neighbourhood and its strategic partners. The developments in the Southern Mediterranean in the past months in particular confirm the importance of developing more and stronger people-to-people contacts and possibilities for exchanges especially for the younger generations.

Any legal instrument resulting from this exercise would contain a general clause reminding that its implementation should be in line with the rights stemming from the charter on fundamental rights, such as for instance the right to family life[13], the right to work or the right to an effective legal remedy. Any future instrument must take fully into account that migration instruments can be abused, with safeguards in place at both national and EU level to prevent this from happening.

2 Procedural issues 2.1. Organisation and timing

The 'admission of third country nationals for the purposes of scientific research, studies, pupil exchange, unremunerated training or voluntary service' is included as a legislative initiative in the Commission's 2012 Work Programme[14]. The lead DG for this initiative is HOME.

Chronology of the impact assessment:

· 2008 - 2009: Data gathering on third-country national remunerated trainees[15] with a view to amending the Students Directive and including remunerated trainees in its scope. It was decided to postpone the presentation of the modification of the Directive until the report on the implementation of the Students Directive has been carried out.

· 2009 - 2011: Data gathering on third country au pairs[16] with a view to amending the Students Directive and including au pairs in its scope. It was decided to postpone the presentation of the modification of the Directive until the reports on the implementation of the Students Directive has been carried out.

· 2010 – 2011: External studies on the implementation of the Students and Researchers Directives[17]. The reports primarily give an overview of how the Directives have been transposed and implemented by the Member States, identify possible problematic issues and potential areas for improvement.

· Throughout 2011: Drafting of the implementation reports for the Students and Researchers Directives, verifying the information with the Member States; adoption of the reports at the end of 2011[18].

· Throughout 2011 and 2012: Consultation and exchange of views with relevant stakeholders; including research, student, youth and research organisations and structures.

· End 2011 and beginning 2012: Discussions with Member States in the context of the Commission's Committee on Immigration and Asylum (hereinafter “CIA”); survey of Member States views on a possible revision of the Directives.

· 25 May and 18 July 2012: Meetings of the Impact Assessment Steering Group.

· 1 June 2012 launch of on-line public consultation[19].

2.2. Consultation and expertise

This Impact Assessment is based on a number of studies and existing literature, reports and consultations. The implementation reports on Directives 2004/114 and 2005/71 as well as the assessments they are based on inform key parts of this impact assessment, most notably the problem definition, but also the development of options. The Commission has consulted Member States and interested groups as well as individuals to help identify problems, develop options for possible future action, and review subsidiarity. The Commission's standards for consultation were met.

Implementation reports: In 2011, the Commission presented implementation reports on the Students Directive 2004/114 and the Researchers Directive 2005/71. Both reports were based on the work carried out by external contactors. In the case of the Students Directive, this concerned predominantly the legal implementation of the Directive's provisions by Member States and identification of possible areas of improvement of the Directive. For the Researchers Directive, the study also looked at empirical evidence of the effect that the Directive has had. This included surveys of third-country nationals who had come to the EU under the provisions of the Directive, research organizations located in the EU, as well as Member States’ national authorities (both from the area of immigration as well as education/research).

Consultation of Member States: Discussions with the Member States took place within the framework of Committee on Immigration and Asylum (CIA) meetings. 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. This consultation focused on existing problems, approaches currently taken by Member States, possible options and the need for EU intervention.

Consultation of relevant stakeholders[20]: Consultation of relevant stakeholders included workshops organized by the 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[21].

European Migration Network (EMN): Several workshops were organized by the European Migration Network (EMN) on international students' mobility, EMN Ad-hoc queries[22] as well as a large-scale study on: "Immigration of International Students to the EU".[23] The 2012 annual conference of the EMN focused on the 'Immigration of International Students to the EU'.

Online public consultation (referred to in the text also as 'the survey' or 'questionnaire') and additional contributions from interested parties: this survey was launched on 1 June through IPM[24] and 1461 replies were received. A statistical overview of the key results of the survey is available in Annex I. Both individuals as well as institutional stakeholders have taken an opportunity to provide their views (including Member States' authorities, educational establishments and research institutions). The survey was open to replies from both with and outside of the EU. Although the assumption could be made that given that the issue at stake, the majority of responses would come from outside of the EU, this proved not to be the case. Out of 1461 responses received, 883 came from within the EU, around 60%. The active participation of stakeholders from within the EU is particularly striking in the case of educational establishments and research institutions. Overall 247 educational establishments and research institutions provided answers to the survey, and 191 (close to 80%) are based in the EU. Importantly, regarding the results of the survey, the analysis shows that there is no geographical bias between responses coming from within or outside of the EU. To take the example of the significant number of EU-based education and research institutions, they were equally strongly arguing for the need to further facilitate the admission conditions and rights of the groups concerned by this initiative as those whose answers were given from outside of the EU.

Finally, the results of the public consultation of the European Research area framework Communication[25] that are relevant to this exercise as well as the results of the Erasmus Mundus Visa Survey of Erasmus Mundus Alumni and students carried out by the Erasmus Mundus Students and Alumni Association (EMA)[26] on the request of the European Audiovisual, Education and Culture Agency (EACEA) also have been taken into account.

Inter-service Steering Group: DG HOME set up a Steering Group of relevant Commission Services to support and monitor the work on the IA, inviting 18 DGs and Services, EEAS as well as the EU's Education Agency (EACEA). The first meeting of the group took place on 25 May[27]. The second meeting took place on 18 July[28] on the basis of a draft IA report. Overall, the approach and analysis were welcomed. Additional inputs submitted during and after the meeting by the members of the Group are reflected in this IA.

2.3. Scrutiny by the Commission Impact Assessment Board

The Impact Assessment Board of the European Commission assessed a draft version of the present impact assessment and issued a first opinion on 07.09.2012. In light of the Board's recommendations, the impact assessment report was reviewed and resubmitted on 25.09.2012. The Board issued a second opinion on 24.10.2012, stating that while the report had been improved to some extent, the evidence presented in terms of a need for, and proportionality of, further harmonisation of national immigration rules remained to be further strengthened. The opinion asked for concrete evidence that would duly reflect the existing diversity of national immigration rules, and required more precise information on the design of individual measures. It requested that impacts on Member States be assessed in more detail, and stakeholders' views presented throughout the report. In light of the Board's recommendations, the impact assessment was reviewed and a revised version was resubmitted on 19.11.2012. On 30.11.2012, the Board issued a third opinion, stating that while the report had improved along the lines of their second opinion, the report had not provided evidence demonstrating that Member States cannot adequately protect au pairs themselves or facilitate the access of third-country nationals to their labour markets. The Board recommended further demonstration of the size of the identified problems and their cross-border effects. The opinion also suggested to provide a better assessment of the proportionality of measures against divergent national immigration rules. It also asked that the views of stakeholders with reserved or negative opinion be presented and analysed in greater depth. The present version of the impact assessment reflects the recommendations by the Board where the availability of information allowed to do so. In particular, it has further elaborated on the problem definition including cross-border issues such as intra-EU mobility, it has further fine-tuned the analysis regarding job-seeking and labour market access related issues, and added more information on proportionality. It has further differentiated the assessment of impacts, and presented in greater detail the positions of the stakeholders.

3 Problem definition 3.1. General problems

3.1.1. Problems with the current rules

Significant weaknesses have been identified in the Researchers and Students[29] Directives covering third-country national students, researchers, but also school pupils, trainees and volunteers. These concern key issues such as admission procedures including visas, rights (such as equal treatment with own nationals) and procedural safeguards. 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.

These problems have been identified mainly through the implementation reports of the two Directives. They were also raised consistently in the public consultation, both by individuals as well as by public authorities, universities and research institutions from outside as well as from within the EU. There are no substantial differences in the views given by those from outside of the EU compared with those given from within the EU. The relevance and seriousness of the problems have also been confirmed by the questions raised in the framework of Contact Committee meetings on the Directives. As regards school pupils, volunteers and unremunerated trainees, subject to optional rules in the Students Directive, the picture of the situation in the EU is fragmented. Ten Member States (CY, CZ, EE, ES, IT, LU, PT, RO, SK and SI) apply the rules for all three groups, whereas five Member States (BG, EL, FR, HU and LV) apply the rules to one or two of the three optional groups[30]. The other Member States have their own national rules which differ from the EU framework increasing further the degree of disparity. Sending youth organizations have indicated that the complexity of visa application procedures was a big obstacle for their work as well as for the concerned third-country nationals themselves, due to the amounts of documents needed and the diversity of different regulations per hosting EU country. The lack of consistency in provisions on visas and residence permits between countries exacerbates the process even more. Additional country-specific regulations on both visa and residence permit applications mean that there is no common procedure for school pupils going to the EU which creates a need for additional organisational efforts.

Not only do the problems concern key parts of the Directives and are of serious nature, but they also concern a large number of people - around 220,000 first residence permits were issued in 2010 to non-EU nationals coming to the EU for education and study purposes, the large majority being university students, and around 7,000 for researchers. Although there is no comprehensive quantitative data on the precise number of incoming third-country nationals that encounter the above-mentioned problems, or who have been prevented to move ahead with their initial wish to come to the EU, it is clear that a considerable number of those who come under the current rules are affected as long as there are no national provisions that would remedy their deficiencies. Overall, despite the lack of quantitative data, and despite the fact that whereas some Member States receive substantial numbers of third-country nationals that belong to the groups concerned, others only have limited inflows (see Annex II for a full overview by Member State), the information available on the nature of the problems identified, coupled with the overall substantial number of permits issues on an annual basis under the students and researchers Directives suggests that the situation needs to be addressed.

In addition it should be noted that the optional approach applied in Directive 2004/114/EC for school pupils, volunteers and unremunerated trainees makes it difficult to give a comprehensive quantitative picture on these optional groups, however it is clear that significant variations can be observed between Member States. For researchers, France, the Netherlands, Spain and Sweden are the Member States that in absolute terms receive the largest numbers of third-country national researchers coming under the provisions of the Directive. For those third-country nationals coming to the EU for educational reasons, the size of the Member State plays an important role, with Germany, Spain, France and Italy issuing the largest numbers of permits.[31]

3.1.2 Issues related to groups not covered by the scope of the existing Students Directive

Remunerated trainees

There is currently no specific legislative framework dedicated to third-country remunerated trainees and there are high levels of variability between Member States in terms of admission criteria, type of 'remuneration', type of permit issued, levels of rights and maximum duration of stay. Currently 10 Member States apply the optional rules of Directive 2004/114/EC for unremunerated trainees, with some of them at the same time also covering also remunerated trainees. Other Member States have specific rules for remunerated trainees, whereas another group of Member States applies more general immigration rules related to economic migration. As a result there is little quantitative information on the number of third-country national trainees coming to the EU, or the share of those coming who are or would like to be mobile within the EU, and no quantitative information at all on the number of those who would like to come to the EU for a limited period of time but not being able to do so in the absence of a clear framework (in those countries where this is the case). Remunerated trainees face a number of challenges comparable to those met by unpaid trainees: training may sometimes constitute a disguised employment or fail to provide for a genuine development opportunity in absence of a proper traineeship agreement or supervision of work. Remunerated trainees are exposed to the risks of being used as supplementary and underpaid labour force. The existence of a fragmented approach between Member States can also make coming to the EU difficult, as both trainees and businesses would need to differentiate between the different frameworks applicable in different Member States. The lack of common rules at EU level also makes intra-EU mobility more difficult. Both third-country national trainees for whom intra-EU mobility forms part of the training experience, as well as their host organizations, currently would need to organize the stay in a second Member State on the ground of national-level rules which differ between Member States.

Already in 2005, the Commission in its Action plan on legal migration[32] foresaw a modification of the Students Directive to include remunerated trainees. However, in order to take into account the up-coming report on its implementation, it was decided to postpone the presentation of the modification of the Directive as the report could identify other shortcomings which would need to be addressed.

Given that the issues related to trainees are very similar whether they are remunerated or not, bringing the remunerated trainees into the scope of the EU framework would increase the coherence of approaches and consolidate the logic of the currently existing framework. In addition, allowing remunerated trainees to be mobile would increase the coherence with on-going EU-level initiatives, as the proposal for intra-corporate transferees[33] also foresees intra-EU mobility provisions for trainees that move within the framework of such a transfer.

Au pairs

Au pairs are an important immigrant group, with up to 45,000 au pairs estimated to come to the EU annually. However, they are not covered by any common EU rules on migration and conditions of admission or requirements of their stay. Twelve Member States have national immigration rules that take into account the specific characteristics of au-pairs, with the remaining Member States not foreseeing rules specific to this group, and often allowing au-pairs to enter under general or employment-related immigration rules. In cases where Member States have in place a specific legal framework for au-pairs, this typically covers a definition of the age-range of au-pairs, the duration of the maximum period of stay, as well as a description of the type of the work that is expected from them or which they are authorized to do. Some more specific conditions found in national legislations include the determination of the nationality or language of the host family, unmarried status of the au-pair, or a minimum number of years of schooling. In the remaining Member States there is no protective legal framework which clearly sets out au pairs' rights.

In parallel to the absence of specific legislation, many Member States also do not have statistics that would monitor the entry and stay of third-country national au-pairs. This makes it difficult to quantify in detail the number of third-country national au-pairs that come to the EU (hence the above estimate). It also explains the lack of systematic reporting tools on abuses. Scarcity of reports on abuse is also likely to be linked to au-pairs being of third-country origin and therefore in a vulnerable position, and to the fact that abuse by definition occurs in the private sphere, possibly with no obvious or easily accessible facility to issue complaints or report abuse. There is however (largely anecdotal) evidence on abuse. In Austria, there have been reports that the au-pair status is used to hide organized prostitution (2006 and 2010) whereas in Belgium abuse has been identified in the form of using au-pair to obtain cheap labour. In France abuses seem related mainly to excessive working hours or to abuses of the services to be rendered. In Italy, while abuse of au pair status is not reported to be a widespread phenomenon, organizations against trafficking and sexual exploitation have sometimes denounced the existence of fake job posts on au pair vacancies. In the Netherlands a study is on-going on the possible improper use/misuse of the au pair policy[34].

3.1.3. Wider considerations

EU attractiveness and competitiveness

The problems identified above, in particular when faced by students, researchers and trainees, can pose a risk to the attractiveness of the EU as a destination for (highly)-skilled migration. While the attractiveness as a whole of any region or country for third country national students and researchers is to a large extent determined by the quality of education and research systems, migration policy, through procedures on visas and residence permits, plays an important role in facilitating and enabling the access and residence of non-EU students and researchers. Past experiences from other countries clearly show that the way immigration policies are designed matters in a country's capacity to attract certain groups of migrants. For example after Canada decided to extend its post-graduation work program from one to two years for students working in fields related to their degrees, foreign student enrolment increased by 17% between 2002-2003 and 2003-2004[35]. And while students, researchers and trainees are not labour migrants in the sense of those coming with, for example, the EU Blue Card, they are nevertheless increasingly sought after. The current EU rules do not foresee any possibility for third-country national students and researchers to remain in the EU after graduation/having finished a research project in order to identify work opportunities[36], and whether or not they are allowed to stay is subject to national rules. For the US, having a large pool of international students in combination with an employer-driven selection system has proved an effective mechanism for identifying the most appropriate workers across the skill spectrum[37]. Regarding remunerated trainees, there is an uncertain or even declining trend in foreign trainees coming to the EU, compared to countries like Japan, Australia and the US, which have a much larger, steady or growing inflow of this group of third-country nationals.

There is strong evidence that the European economy depends more than ever before on the skills of its workforce, and that this is a trend that is likely to continue. The further development of knowledge-intensive services, high tech manufacturing, or the "green jobs" that underpin Europe's future competitiveness requires Europe as a whole to "up its game" in terms of skills development. The forecasts tell that, by 2020, 35% of all jobs in the EU will require high-level qualifications[38]. While past decades have seen significant increases in the educational attainment and skills level of the labour force in the European Union[39], further increases in the educational attainment levels of young workers are getting increasingly difficult to achieve.

At the same time, recent years have seen an intensified international competition for mobile students and staff, coinciding with the development of higher education systems in emerging economies. Awareness of mounting international competition in higher education and research has grown among European governments and universities[40]. In November 2011, the Council stated that 'Attracting the best students, academics and researchers from outside the EU (…) are key conditions for making the European Higher Education Area and European Research Area attractive destinations in the global race for knowledge and talent.' [41]

Out of the 3.7 million international students worldwide[42], 1.2 million are studying in the EU-27[43]. Compared to the overall student population in the EU, the share of third-country national students has decreased in recent years and stands at slightly above 5%, whereas international students make up 10% or more of the enrolments in tertiary education in Australia, New Zealand and Switzerland[44]. Behind these high percentages stand dedicated policies and strategies to attract international students. Australia for example has followed such a strategy with favourable rules for international students (efficient student visa delivery and permission to work for students and spouses), aided by a dedicated government agency with staff in most consulates and embassies. Between 2000-2006, Australia has seen a 75% increase in international students, generating $12 billion income, and through tuition revenue often representing 15% or more of financial resources of education institutions. Currently the fastest growing regions of destination for international students are Latin America and the Caribbean, Oceania and Asia[45].

As regards researchers, one million additional researchers will be needed in order to meet the Europe 2020 target of increasing R&D investment to 3% of GDP. Furthermore, indicators of scientific quality, excellence and impact show a weakening of the EU's global position in research. Whilst it is clear that most of the researchers the EU needs will have to come from within the EU, there is clearly a potential and interest for attracting more non-EU researchers in the EU especially when data show that only 6,945 researchers[46] were admitted under the Researchers Directive in 2010[47].

People-to-people contacts

The benefits of the EU to remain or become even more attractive for school pupils, volunteers, unremunerated trainees and au-pairs are not of an economic nature. Mobility of young people is important in promoting mutual understanding, raising awareness about attitudes and situations existing in the world, allowing exchanges of ideas, establishing relations between people, assisting personal development, encouraging the acquisition of soft skills, increasing employment opportunities, promoting intercultural competences and fighting prejudices.[48]

In the absence of sufficiently favourable admission scheme and rights, the benefits for host and sending societies resulting from the period of training, volunteering programmes and school pupil exchanges with third counties are not fully reaped of. It prevents people-to people contacts which are helpful in shaping mutual perceptions and in enabling reciprocal enrichment. It makes dissemination of values of human rights, democracy and the rule of law more difficult[49].

EU immigration rules should keep pace with intensified initiatives supporting international youth cooperation, dialogue and mutual understanding and encourage mutual learning with third countries[50].

3.2. Specific problems

The above general problems are caused by a number of specific drivers which are detailed below.

3.2.1 Difficulties in admission conditions

While third-country nationals who meet the conditions of the existing Directives have the right to be issued a residence permit and to have this permit renewed if the conditions continue to be met, this right may, in practice, be hindered or even invalidated by additional requirements concerning visa as shown by complaints and queries to the Commission. This problem concerns students and researchers[51] as well as school pupils, volunteers and unremunerated trainees, no matter whether Member States currently apply the relevant provisions of Directive 2004/114/EC or not.

In addition, as reported not only by individuals concerned by such issues, but also by institutional stakeholders such as research organizations or educational establishments, the issuance of residence permits abroad may sometimes involve lengthy, costly and complex procedures both for the applicant and consular posts (including the question of the accessibility of embassies and having to travel long distances, sometimes to other countries, to request/apply for relevant authorisations), and diverse practices applied by Member States' consular posts. Currently only some Member States issue residence permits on their territory, making initial access to the territory dependant on a visa[52].

In general terms, and as was identified in the implementation reports for both Directive 2004/114/EC and Directive 2005/71/EC, in the absence of common rules regarding the conditions and procedures of issuing long-stay visas at EU level, the guarantees regarding the issuing of visas offered by the Directives do not always apply in practice (for all groups concerned).

For the groups for which the immigration procedure necessarily involves an organization to initiate and facilitate admission (in particular school pupils and volunteers), the existence of a fragmented situation across the EU greatly increases the resources and efforts needed. As for these organizations, they need to take into account several divergent frameworks.

For researchers, the fact that the residence permit may be given for a shorter period than the duration of the research project can lead to unnecessary costs and investment of time of reapplying, and lead to insecurity. Regarding the hosting agreement which is crucial in order to obtain a residence permit, Member States have addressed this provision in different ways; the majority of them only requires the hosting agreement, some, however, require an employment contract instead of or in addition to the hosting agreement, and others require only an employment contract[53]. This practice points to a lack of clarity on the side of the hosting organisations as to the nature, aim and content of the hosting agreement. Lack of clarity in such a central component of the Directive poses a serious problem to the instrument as a whole.

Regarding equal treatment rights enjoyed by third-country nationals once they are in the EU, the situation has been improved through the recent Single Permit[54] although it must be noted in the context of this initiative that some groups risk being excluded from the access to goods and services made available to the public, and that third-country national researchers in particular may find themselves in a position where they do not have access to certain branches of social security including family benefits.

Clarity of rules and access to information regarding the conditions of admission and rights[55]

The implementation report on the Students Directive identified a series of shortcomings regarding conditions of admission. The groups covered by the Directive face a lack of clarity when it comes to the required insurance, are confronted with a variety of provisions with respect to the types of evidence proving sufficient means of subsistence, and have difficulties in finding the relevant information on the admission conditions. This lack of clarity, in addition to making admission complicated, may have a negative impact on the exercise of the rights that should be recognised in particular under the Charter of Fundamental Rights.

Related to this, rules and conditions are not adequately communicated. The Students Directive implementation report found that the information on the admission conditions for third country students is not easily identifiable or easy to read. Lack of good information provision and proper transparency makes it more difficult for students and other groups of third country nationals to enter the EU.

As regards researchers' difficulties in acceding the relevant information on which research organizations have been authorized to host third-country national researchers under the provisions of the Researchers Directive are limiting the use of the Directive[56]. The Directive only obliges Member States to publish and regularly update the list of approved research organisations, without any further specification. Publication in official documents fulfils the requirements, however does not guarantee at all that the information is known to potential host organizations or among third-country national researchers.

3.2.2. Lack of synergy and consistency between EU migration rules and EU funding programmes such as Erasmus Mundus and Marie Curie

The importance of EU rules vis-à-vis EU funding programmes comes into play both in the admission procedure as well as in intra-EU mobility. Erasmus Mundus students are required to study in at least two Member States, and yet they often need to fulfil new and separate entry and residence conditions. This can involve lengthy and complex procedures or even the need to leave the Member State´s territory, and therefore hamper the pursuits of the studies. Furthermore, even when candidates have been accepted for Marie Curie fellowships can they experience lengthy procedures in obtaining the necessary authorisations for admission.

Without sufficient synergies between migration rules and EU programmes on mobility, the effectiveness of these programmes is undermined[57]. Under the current proposals for EU mobility programmes[58], the incoming mobility by third-country nationals continues to form a substantial part of EU programmes for higher education and research from 2014 onwards. The importance of visa procedures for programmes like Erasmus Mundus has been highlighted by the European Parliament, which already in 2008, in the context of (at the time) proposal for Erasmus Mundus Programme, called for a special Erasmus Mundus visa which would be valid for the entire duration of the Erasmus Mundus scholarship[59].

3.2.3. Shortcomings in procedural guarantees

Neither the Researchers nor the Students Directive set time limits for Member States in taking a decision on an application for admission.

Although under the Researchers Directive Member States are required to adopt a decision on a researcher’s admission as soon as possible and - where appropriate - to provide for accelerated procedures, in practice only few Member States have set explicit time limits, leaving (potential) applicants in the majority of cases in an unclear situation as to when they can expect a decision[60].

The Students Directive does not call for any specific measures on the assessment of applications for third-country nationals interested to come to the EU as school pupils, volunteers or unremunerated trainees and, in the case of students, it limits itself to a general call to issue a decision within a period which does not hamper the pursuit of the studies. Only four Member States transposed the provisions of the Students Directive on possible fast-track procedures for school pupils and students which would involve co-operation of migration authorities with the educational establishments or recognised organisations involved in school pupil exchanges. In practice, this results in substantial differences in the approaches that are applied across the EU. They range from 7 working days to 6 months and some Member States do not set any explicit lime-limits at all[61].

The absence of time limits for Member States to assess applications can complicate the planning both for individuals and organizations, to the extent that it may endanger the fulfilment of the purposes covered by the proposed instrument. For students for example, in case where they apply for several different universities in different locations, some of which may be outside of the EU, lack of planning security, may result in choosing other locations.

Importantly, the uncertainty created by this lack of clear timing was identified as a problem not only for individuals concerned, but also by research organizations and educational establishments that are based in the EU.

As more recent EU instruments in the area of legal migration (most notably the EU Blue Card) have introduced time limits for decisions on applications, the above-identified problems are all the more relevant.

As for the right of legal redress for a decision on rejection, non-renewal or withdrawal of an authorisation to enter/stay, there is no clear framework for any of the concerned groups on the reasons to be given in case such decisions are issued[62]. Such a situation may unduly limit the right to an effective remedy enjoyed under Article 47 of the Charter of Fundamental Rights of the European Union, as the absence of clear criteria in administrative decision may render more difficult the effective exercise of this right.

Regarding fees required by Member States for the processing of applications, several stakeholders as consulted in the public consultation, highlighted these to be a problem in cases where these were considered to be high. Recent case-law by the Court of Justice of the European Union has clarified the margin of discretion of Member States in deciding on the level of such fees. In Case C-508/10 Commission v Netherlands, the Court stated that the amounts of the charges claimed by the Netherlands for issuing residence permits to long-term residents and their family members were disproportionate as they varied within a range in which the lower amount was about 7 times higher than the amount to be paid by Dutch citizens to obtain a national identity card. The Court held that such excessive and disproportionate charges were liable to create an obstacle to the exercise of the rights conferred by the Long-Term Residents Directive.[63]

3.2.4. Difficulties to access the labour market

3.2.4.1. Limitations in students' right to cover part of their study costs through carrying out economic activities

Students who carry out economic activities to cover part of their study costs do not enjoy any specific rights under the Directive concerning, for instance, the level of remuneration or social security protection. In addition, Member States are allowed to restrict access to economic activities in the first year of students' residence whereas very often, additional economic means are very important for the student to enable the continuation of their studies and help in covering the costs of living abroad, in particular for students who do not benefit from scholarships.

Moreover, current rules require that Member States allow students to work for at least 10 hours per week. Consultations with stakeholders indicate that this is not sufficient of a threshold[64]. Some Member States already go beyond the minimum provisions of Directive 2004/114, however for the EU as a whole there is a need for an improvement of the situation.

3.2.4.2 Difficulties to access the labour market once research or studies are completed

Access to job-seeking after graduation is a key element that can attract students to a particular country. The international experiences cited above clearly demonstrate this. Providing the possibility to look for work for a reasonable period of time makes countries where such a possibility exists more competitive in the search for talent on a global stage, and will enable them to retain more graduates that can apply their skills to the benefit of the host country. A very large majority of the respondents to the online survey (90%) thought that graduates should be allowed to stay in the territory of the Member States for some time after graduation to look for work. Frequently the argument was made that the EU should better value the people who came to graduate in the EU, and who could make useful contributions on the labour market. The EMN conference on 29-30 October 2012 on international students also identified access to the labour market after graduation to be an important issue.

None of the existing Directives contain rules concerning access to the labour market or job-seeking once the research or studies are completed. As a result, practices vary widely across the EU. Several Member States allow graduates to remain in the country for a certain period of time to identify job opportunities. For example, Germany allows this possibility for a period of 18 months, the Netherlands for 12 months, Austria, Finland and France for 6 months. In other countries, while no provision is foreseen to allow them to stay to seek employment, students are allowed to apply for jobs during their studies. In some Member States, graduates are obliged to return to the third country immediately after graduation and do not get an automatic, even temporary, authorisation to stay on the territory to seek a job.

For researchers, the issue of access to the labour market following the finalization of their research was also identified as an important issue in the EURAXESS workshop and in the survey where almost all respondents (94%) thought that researchers should be allowed to stay in the EU for a temporary period to identify other working opportunities[65]. Both individuals and research institutions (most of them based within the EU) shared this view, considering counterproductive for the growth potential of the EU to not allow researchers to identify work opportunities after completion of their research.

3.2.4.3. Lack of provisions concerning access to labour market for family members of researchers

While the researchers Directive provides for the possibility for family members of third-country national researchers to join them, there are no provisions that would grant them immediate access to the labour market, making it less attractive for a highly-qualified researcher to move to the EU.

A majority of Member States do so however, but not all of them. The lack of an automatic right for family members to work was considered a 'significant disincentive' (in the Member States where this is the case) in the conclusions drawn by the report on the implementation of the researchers. The EURAXESS workshop confirmed that this issue was crucial for promoting attractiveness.

A lack of access also has a potentially negative impact on the right to family life protected under Article 7 of the Charter of Fundamental Rights.

3.2.5. Difficulties in exercising intra-EU mobility

The current rules limit intra-EU mobility to students who have been admitted to a Member State for periods of no less than two years, and who would like to follow in another Member State curricula already commenced or to complement it with a related course of study. For those who stay for shorter periods or wish to engage in subjects other than those they started with in the first Member State of admission, there are no intra-EU mobility provisions.

In the case of researchers, the existing provisions may even lead to legal uncertainty and cannot be considered fully compatible with the requirement for researchers to be mobile, if needed also together with their family members.

Other categories of third-country nationals covered by the Students Directive do not enjoy any mobility provisions. Regarding trainees, as they may be required to stay in various establishments in different Member States, specific intra-EU mobility provisions are needed.

3.2.6. Risk of exploitation and vulnerability of groups currently not covered

Risk of exploitation of remunerated trainees

Whilst unremunerated trainees are within the optional scope of the students Directive, this is not the case for remunerated trainees. Nevertheless, in many ways, the purpose and features of the traineeship in the EU is the same for both groups; providing for an opportunity to gain and/or increase professional experience and skills, and bridging the gap between education and the labour market. The challenges that the two groups face are also comparable: risk of disguised employment or fail to provide for a genuine development opportunity in the absence of a proper traineeship agreement or supervision of work, or exposure to the risks of being used as supplementary and underpaid labour force.

The lack of a specific legislative framework at EU level has as a consequence that there are high levels of variability between Member States in terms of admission criteria, type of 'remuneration', type of permit issued, levels of rights and maximum duration of stay. It also means that any attempt to be mobile within the EU would need to rely on national rules, rendering intra-EU mobility difficult and complicated, as there is no common EU framework to exercise intra-EU mobility for remunerated trainees.

Risk of vulnerability of au pairs

Au pairs are not covered by any common EU rules on migration, and conditions of admission or requirements of their stay. There is also no protective legal framework clearly setting out au pairs' rights, and, therefore, a lack of monitoring of their situation which is a matter of concern in view of the evidence of exploitation affecting this vulnerable group.

While au pair schemes are formally described as cultural exchange programmes in most Member States, they are in practice often used as a way of importing cheap domestic or care workers. There is evidence that au pairs may be exploited by their host families in terms of long hours and lack of time off. They often work longer hours within the family than agreed under their immigration agreement and frequently do unpaid overtime.[66] Furthermore, many au pairs are unable to, or choose not to, participate in language and cultural exchange activities, whereas these are traditionally the defining characteristics of au paring and the purpose of their stay. In addition, au pairs often undertake undeclared work on their days off[67].

Common EU rules regarding the definition of au pairs, conditions of entry, obligations in terms of cultural / linguistic activities, accommodation etc., would support vulnerable au pairs in protecting their rights and ensure that the aim of au pair programmes as a cultural exchange is better achieved. Common rules would create clarity and would thereby make monitoring of the fulfilment au pair placement's objectives and the respect of rights and obligations easier.

3.3 Possible evolution of the problems all things being equal

Without any changes, the problems identified with the current rules would remain, and the differences between Member States would continue to provide for a fragmented landscape in areas where the EU has initiated a number of crucial initiatives related to mobility, people to people contacts, innovation and growth. For those students and researchers admitted under the Directives who are already in the EU or continue to come to the EU, the current problems are likely to persist. Despite the fact that some Member States have been developing strategies to promote internationalisation and attractiveness[68], recent trends show that progress has been uneven and the EU as a whole would likely give further ground in the attractiveness for third-country national students and researchers to international competitors which in recent years have already started to become more interesting destinations for these groups, in particular for the most talented students and researchers. As a result, the EU's competitiveness may suffer in a medium- to long-term scenario, with a stalling internationalisation of education and research systems at least as far as human resources from third countries are concerned.

Without enough synergies between migration rules and EU programmes on mobility, the full effectiveness of these programmes will be undermined whereas, as shown by the Erasmus for All and Horizon 2020 initiatives currently in legislative process, the mobility of third-country nationals continues to form a substantial part of EU programmes for higher education and research from 2014 onwards. The importance and impact of visa procedures for programmes like Erasmus Mundus has been highlighted by the European Parliament, which already in 2008 called for a special Erasmus Mundus visa which would be valid for the entire duration of the Erasmus Mundus scholarship.

Whereas the European Higher Education Area and the European Research Area create ever more possibilities for mobility, the current rules for third-country national students and researchers may continue to hinder these groups from benefiting from the advantages of mobility. In the area of higher education, there is a growing number of degrees administered jointly by higher education institutions involving two or more Member States, requiring students to be mobile in order to take part in such programmes. Relying solely on the restrictive intra-EU mobility provisions of the current legal framework would mean that third-country national students would in many cases not be able to enrol in such programmes, or only be able to do so on the basis of national-level provisions where those exist. Equally for researchers, undertaking research in different locations increasingly forms part of their work, and limiting the possibility to be mobile within the framework of the hosting agreement to three months therefore creates further obstacles, also as researchers' family members are not covered. For third-country national remunerated trainees, the proposal on intra-corporate transferees foresees intra-EU mobility provisions. Once adopted, trainees that are not part of an intra-corporate transfer would be in an increasingly disadvantaged position by not being able to rely on EU-level provision on mobility.

Regarding the rights that the third-country nationals enjoy, the situation has evolved to some extent in relation with employment related rights with the adoption of the Single Permit Directive[69]. According to the Directive, anybody considered to be allowed to work under the conditions foreseen by the Single Permit Directive would automatically benefit from these rights[70], with some exceptions where Member States may restrict them. These concern access to social security, (can be restricted to those who have been in employment for less than 6 months), access to education and vocational training (Member States may restrict this in cases where this is not directly linked to the specific activity carried out), tax benefits (can be restricted by limiting the entitlement to cases where the registered or usual place of residence of the family member of the third-country worker for whom he/she claims benefits lies in the territory of the Member State concerned), as well as access to goods and services made available to the public (can be restricted to those in employment and may exclude access to housing).

Furthermore, keeping the current framework would lead, as regards the rights protected under the Charter for Fundamental Rights, to maintain an unsatisfactory situation where rights remain unclear or risk being insufficiently protected. This is particularly relevant for the groups currently not covered by EU legislation, or covered only in an optional way.

3.4 EU right to act and subsidiarity

EU right to act

The legal basis for EU action in the area is established in Article 79(2) of the Treaty on the Functioning of the European Union, which provides that "the Union shall develop a common immigration policy aimed at ensuring, at all stages, the efficient management of migration flows, fair treatment of third-country nationals residing legally in Member States …"

This provision 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.

The main purpose of this EU action is to design an admission instrument for third-country national students, researchers, school pupils, unremunerated trainees, volunteers as well as au pairs and remunerated trainees, in the sense of Art 79 of the Treaty. Article 79 is a comprehensive legal base under which conditions of residence include "working conditions", which are regulated as ancillary matters to entry and residence. The same approach was already used for the existing migration acquis such as Directives 2003/109/EC (long-term residents), 2005/71/EC (researchers) and 2009/50/EC ("EU Blue Card").

Finally it should be noted that the unanimity requirement that applied to the negotiations of the Students and Researchers Directives had led to the adoption of minimum standards Directives, the provisions of which often represented the lowest common denominator as they had to be acceptable to all Member States. This in part explains the limited scope of the existing Directives. With the entry into force of the Lisbon Treaty, the ordinary legislative procedure, coupled with the qualified majority voting in the Council, should allow the adoption of a more ambitious instrument with an EU dimension and added value moving beyond minimum standards.

Principle of subsidiarity

Immigration is a competence shared by the Union and the Member States. The principle of subsidiarity therefore applies, which involves ensuring that the objective 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).

Necessity test

The initiative touches only those areas in which problems have been identified and substantiated. In line with the approach taken in other Directive on legal migration, the initiative does not prevent Member States in any way from applying more favourable conditions in a number of areas.

In addition, the rationale for action at EU-level (increase the number of researchers in the EU for the benefit of more competitive and dynamic knowledge-based economy, promoting Europe as a world's centre of excellence for studies and vocational training and promoting forms of temporary migration which constitute a form of mutual enrichment) which was the basis for the adoption of the Students and Researchers Directives remains the same. The progress in the European Higher Education Area and the European Research Area has made it even more pertinent.

The challenge to keep, and become increasingly more attractive to talent from outside of the EU has increased and is common to all Member States. Although each Member State could have its own national system of admitting the third country nationals groups concerned, this would not achieve the general objective of increasing the attractiveness of the EU as a destination for talented migrants and to promote possibilities for cultural exchanges. Having one set of common admission and residence requirements rather than a number of national-level rules is more efficient and simpler for potential migrants than having to look into and deal with 27 different systems.

In addition, promoting intra-EU mobility, one of the key objectives of the initiative require for an EU-wide instrument.

With the increased number of initiatives targeting youth and stimulating culture, 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, the minimum levels of protection and rights of third country students, researchers and other groups should be the same so as to avoid the exploitation of certain vulnerable categories, e.g. remunerated trainees and au-pairs.

The views of Member States on the need to act depend on the type of authority consulted. Most immigration authorities of the EU Member States as consulted in the Committee on Immigration and Asylum see no need to amend the EU legal framework on immigration rules for the groups concerned. They consider that the legislative framework is working well and should be kept as it is. Some Member States argued that the Directives should be kept as separate instruments. Furthermore the argument was made that while the current instruments leave Member States with sufficient flexibility regarding implementation depending on their national specificities, a new instrument may limit such flexibility. Some national immigration authorities also pointed to room for improvement of the current framework, for example with regard to a potential for clarification of overlaps between the Students and Researchers Directives and to resolve any contradictions between the two, with regard to more guidance on the hosting agreement in the Researchers Directive, or with regard to the rules to change between student and researcher status, to avoid cases where researchers have been classified as students. At the same time some Member States' authorities in the area of research and education support changes in the legislative framework to facilitate the admission of the groups concerned and thereby increase the attractiveness of the EU for the groups concerned. They stressed the positive benefits that immigration, and in particular international students and researchers, can bring to the economy, the contribution it can make to societies and cultural enrichment.

Regarding third-country national researchers and students, volunteers and school pupils, stakeholders from the areas of education, research and youth exchange as consulted through workshops and conferences overwhelmingly support the objective to improve admission conditions and rights for the groups concerned.

The online public consultation also revealed very strong support to increase the attractiveness of the EU for the groups concerned, whereby strongest support was expressed for researchers and students. Support was expressed independently from where the respondents were based or whether they were EU citizens or not.

EU added value

The EU added value of the existing Students and Researchers Directive has been proven over the years, and this initiative will further improve this situation. For researchers, Marie Curie fellowships have been opened to third-country researchers, through Incoming International Fellowships (IIF). In the case of students, one of the objectives of EU action in the field of education, as supported by EU Programmes on mobility such as Erasmus Mundus, is to promote Europe as a world centre of excellence for studies and training.

Migration for the purposes of studies, training, school education, volunteering and culture exchanges, constitutes a form of mutual enrichment for the migrants concerned, their country of origin and the host Member State, and helps to promote better familiarity among cultures. There is a need for an improved common legislative framework for such migration.

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. With respect to the external aspects of migration policy, an EU instrument covering remunerated trainees would help further deepening of the global approach, 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 increase their protection.

The new instrument would be complementary to the existing instruments in the area of legal migration, in particular the EU Blue Card Directive. Whereas the latter is for third-country nationals who are already highly-skilled and wish to work in the EU, the new rules would cover students and researchers whose entry and residence are under normal circumstances not directly linked to the requirements of Member States' labour markets. However, one of the key elements of the new proposal would be to better tap into the potential of these groups upon finalizing their studies or research, who undoubtedly constitute for the future a pool of highly-skilled workers, and who speak the language and are integrated in the host society. Regarding remunerated trainees, the new instrument would complement the proposal for a Directive on intra-corporate transferees which is currently in negotiation with Council and the European Parliament. This Directive, once adopted, will cover admission into the EU and rights of third-country national trainees insofar as they will come to the EU in the context of an intra-corporate transfer. Trainees falling outside of the scope of such a transfer will not be covered by the Directive on intra-corporate transferees.

Provisions aiming at clarifying and promoting rights and residing conditions would also contribute to the overall objective of enhancing the protection of fundamental rights. Providing a series of equal treatment rights with own nationals to third country nationals who are legally residing on the territory of the Member States has already been ensured by different EU Directives. The distinction between students and other groups covered by the Directive, even taking into account the temporary character of the stay of the third country nationals concerned, should also be examined in the light of the principle of non-discrimination as it results from Article 21 of the Charter of Fundamental Rights and of the impact a differentiated treatment may have on the rights of these groups such as the freedom to choose an occupation and right to engage in work (Article 15 of the Charter), right to fair and just working conditions (Article 31 of the Charter) and to right social security (Article 34), as well as other rights as relevant.

4 Objectives

The policy options for tackling the problems identified in the existing EU framework will be assessed against the following policy objectives.

4.1 General policy objectives

The main general policy objective is to improve the legal framework applied to third-country nationals willing to come and temporarily stay in the EU for more than three months for research and studying purposes. Improving the way in which these groups are admitted to the EU and the rights they have once they have been admitted will contribute to making the EU a more attractive destination for studies and research and as a destination for third-country national school pupils, volunteers, trainees or au pairs.

In broader terms, the initiative also serves to contribute to increasing the EU's innovative capacity and competitiveness, support the economic, social and cultural relationships between the EU and temporary migrants' country of origin and promote people-to-people contacts.

4.2 Specific and operational objectives

Achieving the general objectives set out above entails the following specific and operational objectives[71].

4.2.1 Improve the conditions of admission.

· Strengthen the right to enter and reside in the EU once the admission conditions set out in the Directive have been fulfilled, reduce the number of admission and residence procedures and costs and increase transparency and coherence of the EU system.

· Link/combine long-term visa and residence permit procedures.

· Increase coherence regarding the currently fragmented situation with regard to school pupils, volunteers and unremunerated trainees.

· Ensure better access to information and adequate means of communication on the admission conditions and rights of third country nationals who wish to come to the EU to do research, study, carry out volunteering activity, participate in the school pupil exchange or undergo unremunerated training.

· Provide more clarity on the admission conditions, e.g. the necessary scope of sickness insurance or the hosting agreement between host research institutions and researchers[72].

4.2.2. Increase coherence of EU migration rules with EU mobility programmes

· Increase synergies of immigration procedures with EU funding programmes, so that third-country nationals who have succeeded as candidates for programmes such as Erasmus Mundus, Marie Curie International Incoming Fellowships, etc. can benefit from certain additional facilities helping in the exercise of their "mobility track" within the EU, which involves studies/research in more than one Member State.

· Introduce rules enabling the Erasmus Mundus students and Marie Curie fellow to apply for an authorisation covering the duration covered by the scholarship/fellowship and allowing to move - for a period of up to one year - to study and carry out research in different Member States bound by the Directive.

4.2.3. Improve procedural guarantees

· Provide better procedural guarantees, in particular clear time-limits within which applications are decided upon and rights to an effective remedy.

· Provide for clear framework of rights in cases of rejection, non-renewal and withdrawal of the authorisation to enter/stay.

· Ensure that where fees are charged to third-country nationals as part of the admission procedure, these are proportionate.

4.2.4 Improve access to the labour market

· Improve conditions on the basis of which students are allowed to engage in economic activities during their studies.

· Enable students and researchers to temporarily stay on the territory of a Member State in order to identify work opportunities after they completed their studies/ research.

· Allow family members of researchers an immediate access to the labour market.

4.2.5 Improve intra-EU mobility

· Facilitated and simplify intra-EU mobility for students, trainees as well as researchers and researchers' family members.

4.2.6. Provide for coherent provisions ensuring protection of au pairs and remunerated trainees

· Broaden the scope of application of the rules provided by the Students Directive to au pairs and remunerated trainees and provide for sufficient protection and rights.

5 Policy Options

In order to reach these objectives, four policy options have been considered. The measures covered by these options have been combined so that they can address the identified problems subject to varying degrees of ambition. As the current framework consists of two Directives, and as suggestions calling for improvements of the current framework did so by proposing changes to the existing Directives, no other type of regulatory measure has been considered.

5.1 Option 1 (baseline): No changes to the existing situation

This policy option would mean that most of the problems would remain unresolved. Different and diverging solutions with respect to admission conditions, in particular visa, would continue to be implemented by the Member States acting independently. For potential applicants as well as organizations involved, in particular in the cases of school pupils, volunteers or unremunerated trainees, the lack of clarity and transparency on these aspects would remain, and the organizations involved would have to keep taking into consideration all existing different frameworks rather than being able to operate within an EU-wide framework.

Regarding the rights that the third-country nationals enjoy, the situation has evolved to some extent with the adoption of the Single Permit Directive[73]. The Directive ensures mainly employment-related equal treatment rights such as working conditions including pay and dismissal, collective labour rights such as freedom of association and affiliation, education and vocational training, recognition of diplomas, social security including health care, tax benefits, access to goods and services and advice services of employment offices. There are however some exceptions to this rule, where Member States may restrict these rights. These concern access to social security, access to education and vocational training, tax benefits as well as access to goods and services made available to the public[74].

Under the baseline scenario, applicants would continue to lack sufficient procedural safeguards. In those Member States where this is the case, the lack of time limits or the very long time limits to decide on admission applications would still entail the risk of jeopardizing the possibility to come to the EU, in particular in those cases where specific deadlines have to be met, as is the case for example with the start of an academic semester for students.

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, and would still face obstacles to intra-EU mobility and would need to rely on national-level legislation which differs between countries. The proposal on intra-corporate transferees also includes intra-EU mobility provisions for trainees. Not including intra-EU mobility provisions in a framework for trainees coming to the EU outside of an intra-corporate transfer would lead to inconsistencies in the overall EU legal framework.

Keeping the existing situation unchanged would also imply a continued lack of coherence between EU-funded mobility programmes and EU migration rules. Third-country nationals who in principle succeeded in obtaining funding from EU mobility programmes may still be blocked from being able to benefit from such funding, as EU immigration rules may render the taking-up of the funding impossible. And while EU-funded mobility programmes can include intra-EU mobility, those who would benefit from this may be faced with problems in exercising such intra-EU mobility.

Regarding the access of students to the labour market during their studies, the situation would remain different across the EU and some students would continue facing possible difficulties in earning enough money to support their stay. In some Member States, students already benefit from more advantageous possibilities to fund their stay through working more than the minimum 10 hours per week foreseen by the Directive (typically up to a limit of around 20 hours per week, such as Belgium, Cyprus, Finland, France, Latvia, Lithuania and Germany).

Similarly, regarding the access to the labour market for students following graduation, different approaches would continue to apply across the EU. In those countries that allow students to look for work (without granting them an automatic right to work) after graduation, students would have the possibility to seek to embark on a professional career, applying their skills and contributing to economic development (Austria, Belgium, Finland, France, Germany, Latvia, Netherlands, Portugal, Slovenia and Sweden), whereas in those Member States that do not foresee such a possibility, students would need to immediately leave the EU following graduation. This results in a loss of skilled human capital, trained to high standards in the EU, however not given the possibility to apply their knowledge and skills to the benefit of the EU economy. It should be noted that some Member States (for example Lithuania), are considering to grant a period to students after graduation to stay and seek employment (for up to six months).

Regarding the access to the labour market of the third-country national researchers’ family members, the situation is similar, with many Member States already providing for such a possibility, whereas others do not foresee this. Given that the aspect of labour market access of family members has been identified as an important potential factor in the decision by researchers where to move, a continuation of the existing situation would not lead to an improvement of the attractiveness of the EU as a whole.

Overall, the EU would not improve its status as a destination for third-country nationals that are already highly-qualified or are entering in order to study.

As regards third-country national remunerated trainees and au-pairs, they would be covered through immigration legislation only in Member States which have national rules on these specific groups. Once the negotiations on the current proposal for a Directive on intra-corporate transferees will have been completed, third-country nationals coming within the context of an intra-corporate transfer will be covered by EU legislation, but will leave others - who may be in similar situations - uncovered. In the absence of further legislative initiatives of Member States, au-pairs will continue to be a particularly vulnerable group.

More generally, whereas some Member States have made further changes to their respective legislative frameworks on the implementation of the rules on students and researchers, others have not done so which means that the situation has already moved towards a more fragmented approach between Member States. There are no signs that this would change in the future, and this fragmented approach is the opposite of the intention that was behind the rationale of the Directives and of the significant efforts undertaken to progress in building the European Research Area and the European Higher Education Area. Keeping the rules on immigration as they are would imply that the openness towards third countries would not materialize as advocated for by these important policy frameworks.

5.2 Option 2: Increased communication efforts (in particular in case of researchers), and strengthened enforcement of the current rules

Considering that various problems identified are related to difficulties with the implementation of the existing legal framework, including those coming from the lack of information and transparency on the EU legal framework, a second option could be to increase communication efforts and strengthen the enforcement of the current rules.

Better provision of and access to information would increase the transparency of existing rules, making them better used and applied. The EU Immigration Portal as well as the EURAXESS portal could be used as a tool to make the provisions of the Directives better known.

Furthermore, and with the view to increase the use of the Researchers Directive by national authorities and subsequently research organizations and third-country national researchers, renewed and increased communication efforts could bring out the advantages that the Directive holds for all stakeholders involved. This could involve actions at EU level (for example through the EURAXESS network, especially EURAXESS Links) as well as outside the EU, in third countries, by informing both consular staff to make them better aware of the existing rules and possibilities, and potentially interested third-country national researchers. Information could also be channelled through EU delegations. At national level individuals should also be better informed of the existing redress mechanisms.

There could also be increased efforts in raising awareness for currently existing best practices by Member States in admitting and protecting groups which are currently not covered by the Directive, i.e. au pairs and remunerated trainees.

As regards enforcement of the current rules, a more systematic exercise of ensuring that Member States understand and comply with their obligations under the Directives would be carried out.

5.3 Option 3: Improvement of admission conditions, rights and procedural guarantees

Under this option, a combination of provisions would be designed with the aim of addressing the flaws identified in the existing legislative framework with a particular focus on improving admission conditions, procedural guarantees and rights of the groups covered by the Directives.

Admission conditions: the provisions on granting visa for students (and other categories currently optional in the Students Directive, which would become mandatory) would be strengthened to bring them in line with the corresponding provisions of the Researchers Directive. 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. The new legal framework would also include a provision encouraging Member States to ensure that information on admission criteria is made publicly available.

Rights: the rights of students as currently covered by the Students Directive would be aligned - as long as they are not covered by the Single Permit - with those granted to researchers under the Researchers Directive. Students' right to work would be extended to cover a minimum of 15 hours per week as of the first year of residence.

In terms of improved intra-EU mobility, an objective that due to its cross-border character requires common rules at EU level, this option would allow students to apply to study in another Member State without the need to leave the territory of the Member State(s) covered by the Directive.

Procedural safeguards: time limits would be introduced that oblige Member States' authorities to decide on applications within 60 days. In exceptional circumstances, this could be extended by an additional 30 days. This would apply to all groups and is considered to be proportionate due to the temporary character of their stays in the EU.

For all groups concerned, this option would include the need for Member States to motivate in writing a decision to reject an application to issue, amend, renew or withdraw an authorization. This written notification should specify the Court or administrative authority where the person concerned may lodge an appeal, and the time limit for Member States to take decisions.

In order to ensure coherence with other existing EU instruments in the area of legal migration such as the Single Permit Directive and recent case-law on adequate levels of fees[75], the option would include a provision recalling that where Member States charge fees for handling applications, the level of such fees should be proportionate.

5.4 Option 4: Further improvement of admission conditions, rights also on intra-EU mobility and procedural guarantees; labour market access following completion of studies or research project; extended scope to au-pairs and remunerated trainees

Under this option, built in part on Option 3, the combination of provisions proposed would aim at a higher degree of ambition in improving the conditions and rights of the groups covered and would extend the scope of the legislative framework to au-pairs and remunerated trainees.

Admission conditions: the requirements necessary to obtain long-term visa and residence permits would be more strongly linked/combined. While Member States would keep the possibility to issue long-stay visas or residence permits for stays beyond three months[76], they should, in case both 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). This would be without prejudice to additional technical requirements relevant to either visa or residence permits. For the Member States that require a visa to enter and stay on the territory, in case the third-country nationals' stay would exceed a period of one year, the Directive would require the issuance of residence permits. At the same time the Directive would not require a change in Member States' practices which rely on the issuance of the residence permits abroad and do not involve a visa. Regardless of the practice of the Member States in this area, there would be no distinction in the available rights (in terms of both entry and residence rights) between third-country national entering and/or staying on the territory on the basis of a residence permit or a long-stay visa.

This option would also introduce specific admission conditions for au pairs and remunerated trainees. These new conditions would aim at ensuring a better defined status, and thereby a better protection for au pairs. They would concern the age range; evidence that the host family accepts responsibility for an au pair throughout his/her period of presence in the territory of the Member State concerned; an agreement defining his/her rights, and adequate arrangements allowing him/her to attend language courses, and obligations. The inclusion of au-pairs is considered to be proportionate in view of their vulnerability being particularly high when compared to other groups of third-country nationals. This relates mainly to their work being undertaken in a family context, which is under normal circumstances not subject to any inspections.

In order to prevent trainees from being abused as cheap labour, host entities may be required to declare that the trainee is not filling a job. The inclusion of remunerated trainees is considered to be proportionate as the issues related to trainees are very similar irrespective of whether or not they are remunerated, or whether or not they come to the EU as part of an intra-corporate transfer, as foreseen by the proposal for intra-corporate transferees.

The instrument would also include a provision requiring Member States to ensure that the fullest possible set of regularly updated information is made available (notably on the internet) as regards admission criteria, in particular the scope of the sickness insurance required.

Rights: The rights of those groups which could be excluded from the Single Permit Directive would be ensured as regards access to goods and services and the supply of goods and services made available to the public. For researchers, more favourable treatment regarding branches of social security including family benefits beyond the rights given under the provisions of the Single Permit would be granted. Generally in cases where the relevant groups of third-country nationals would stay on the basis of a long-stay visa, any new legislative instrument would need to provide for equal treatment rights in order for the Single Permit Directive to apply mutatis mutandis.

As regards improved intra-EU mobility, an objective that due to its cross-border character requires common rules at EU level, further facilitation and simplification would be introduced for students and researchers (as well as researchers' family members). Students and researchers could move to another Member State to continue or complete the studies or research project for six months or up to twelve months on the basis of the initial permit. Depending on the duration of the studies or of the research project, conditions would differ. For a period of six months, information from one Member State to another would suffice, whereas for longer periods, resubmission of certain documents would be required. For Erasmus Mundus students, no specific information or resubmission would be necessary in case of mobility (the initial authorization would cover the whole period of study, no matter how many Member States this would involve). New mobility provisions could be added for remunerated trainees. Member States would need to set up contact points for receiving and transmitting information needed to implement intra-EU mobility. This would follow the example of the contact points already established as part of the Blue Card Directive as well as the proposal for a Directive on intra-corporate transferees.

Regarding access to the labour market of students during their studies, the students would be allowed to work for a minimum of 20 hours per week as of the first year of residence, in order to allow them more adequate possibilities to fund themselves. A number of Member States already apply this measure, and this option would continue to allow Member States to take into account the situation of the labour market when deciding about labour market access for third-country national students during studies.

Regarding access to job-seeking, this option would allow students and researchers to stay on the territory after finalization of studies/research to identify work opportunities for a period of 12 months. This would not be an automatic work permit, since Member States, even in the case of existence of a job offer, could still apply the relevant authorization procedures. The introduction of a possibility to stay for job-seeking is considered to be proportionate as it appears to be an important factor in the choice of a destination country and an issue of common interest both in the context of a declining working-age population and future skills needs. A number of Member States already have such provisions in place. 12 months is considered to be a proportionate time-limit for the reasons mentioned above and in light of the time it takes for a job-seeking process to be successfully completed.

ü Procedural guarantees: Time limits would be introduced that would oblige Member States' authorities to decide on applications within 60 days (applying to all groups), and within 30 days for Erasmus Mundus and Marie Curie fellows. Given the temporary nature of the stays of the groups concerned, this is considered to be proportionate. Some groups' stays are limited to 12 months, and having application procedures spanning more than 60 days would be a disproportionately long period of time . Some parts of the EU immigration acquis already provide for time limits (for example Council Directive 2009/50/EC (the" Blue Card Directive").

As option 3, this option would also include for all groups concerned the obligation for the Member States to motivate by written notification any decision rejecting an application for issuing, amending, renewing or withdrawing an authorization. This written notification should specify the Court or administrative authority where the person concerned may lodge an appeal, and the time limit for Member States to take decisions.

This option would also ensure coherence with recent case-law on adequate levels of fees[77] by recalling that where Member States charge fees for handling applications, the level of such fees should be proportionate.

6 Analysis of impacts

In the absence of reliable quantitative information on all aspects that the proposed initiatives could impact on, the analysis is mainly based on a qualitative assessment of cross-checked criteria.

The following tables analyse the impacts of the retained policy options (Options 2, 3 and 4) against the baseline scenario. Impacts are assessed in terms of overall economic impacts, social impacts (including impacts on the access of individuals to education and research, on employment and labour market and on cultural and linguistic diversity), external impacts (including an assessment of the brain drain/brain gain effects) and impacts on fundamental rights. Then an assessment has been carried out of the overall feasibility of each option (defined as including transposition and administrative related burden and the financial costs).

An attempt has been made to indicate the likely strength of the negative or positive impact on a scale from one to three (+ for positive impacts, - for negative impacts), with 0 indicating an absence of impact.

Some elements of quantification at a more general level are presented in Annex III and as regards administrative financial costs in Annex IV.

Assessment of impacts

Table 1 - Assessment of impacts

Policy Option 2: Increased communication efforts: (in particular in case of researchers), and strengthened enforcement of the current rules

Feasibility

Difficulty/risks for transposition, incl. proportionality || 0 || No difficulties or risks related to transposition are expected as the option does not create any additional legislative interventions. Member States would have complete discretion in whether and how to provide more transparency and information on existing provisions.

Simplification/administrative burden || 0 || No possibilities for simplification have been identified. The administrative burden would be limited and confined to efforts needed to implement improved communication activities insofar as Member States deem this necessary.

Financial impact || 0 || No possible financial impact as different from the expected economic impact at EU level has been identified.

Expected impacts

Economic impact at EU level || +/0 || Better communication and increased transparency on admission conditions would to some extent attract more third-country national students and researchers. Consequently, a very limited positive economic impact at the national level could be expected in Member States that allow third-country national students and/or researchers to stay on the territory to look for work following finalization of their studies/research and where this leads to the issuance of an authorization to work by the Member State. The overall positive economic impact at EU level would however be very limited. The expected impact regarding the three other (optional) groups covered by the Students Directive would be very limited. The implementation costs would be limited as this option regards an improvement of already existing communication measures and does not introduce new measures. The costs would vary among Member States as some already have advanced information campaigns in place whereas others would need to undertake action in this area.

Social impacts at EU level || + 0 + || Access of individuals to education and research: More transparency on existing rules will enhance access of third-country nationals to opportunities in education and research in the EU; this applies to students, researchers and school pupils. Better information and communication on existing rules will also facilitate the way in which involved organizations (such as research organizations, universities, but also those organizations involved in activities of student exchange and volunteering) can operate. Employment and labour market: This option would put the EU in an increasingly disadvantaged position in attracting talent for education and research purposes which will not improve the situation as compared to the baseline scenario, in particular in those Member States that currently do not have in place systems at national level that go beyond the provisions of the existing Directives and that would increase their attractiveness. Cultural and linguistic diversity: As under this option, a small increase in third-country national students and researchers (as well as in some cases volunteers, school pupils, remunerated and unremunerated trainees and au pairs) could be expected, also the EU would benefit from an increase in cultural and linguistic diversity. Increased communication can contribute to fostering people-to-people exchanges and strengthened young people’s learning mobility, including non-formal learning in another country.

Impacts in third countries || 0 + || Brain drain/brain gain: While a small increase in the departure of third-country national students and researchers and other groups covered by the Directive may initially have a negative impact on sending societies, the fact that many of them will return after their stay in the EU means that they will eventually benefit from the knowledge, skills and experiences that third-country nationals would have gained and acquired during their stay in the EU. For the case of volunteers, school pupils, remunerated and unremunerated trainees as well as au pairs, the impact in third countries could be broadly positive, as the Directive covers only temporary forms of migration, which means that third-country nationals would come back to sending societies.

Impacts on fundamental rights || + || This option would have some positive, even if limited,