Proposal for a Council Act establishing the Convention on rules for the admission of third-country nationals to the Member States
Date: 1997-07-30
Institutions: European Commission
Subjects: admission of aliens, foreign national, free movement of persons, immigration, third country

COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 30.07.1997 
COM(97) 387  final 

97/0227 (CNS) 

Proposal for a 
COUNCIL ACT 

establishing the Convention on rules for the admission of 
third-country nationals to the Member States 

(presented by the Commission pursuant to Article K.3(2)(c) 
of the Treaty on European Union) 

CONTENTS 

I. 

EXPLANATORY MEMORANDUM 

A.  The case for a proposai on admission 

B.  Article by Article commentary 

H.  PROPOSAL FOR A 

[Council Act 
Recitals 
Substantive provisions 

4 

4 

8 

24 

24] 
25 
27 

INTRODUCTORY STATEMENT 

The Commission  has always wanted  the immigration  rules to  be within the Community 
ambit. It  accordingly welcomes the results of the Intergovernmental  Conference  and the 
prospects opened up by the Amsterdam Treaty. That Treaty has not yet been signed, let 
alone ratified, but it would be a mistake to postpone consideration of the subject-matter of 
this proposal until it has entered  into force.  In the current  situation the Commission can 
make  proposals  only  on  the  legal  bases  available  in  Title VI  of  the  Treaty  on 
European Union. Once the new Treaty has entered  into force, however, the Commission 
will obviously present a new draft  in the form of a directive. This will preserve the  fruits 
of the previous deliberations on the substance but  in the context  of the new legal basis. 
This technique, incidentally, was used for the adjustment  of the original draft  Convention 
on the crossing of external frontiers (1991) to the new conditions created by the entry into 
force of the Treaty on European Union in 1993. 

This Commission option has two consequences: 

in  using  the  existing  legal  instruments,  the  Commission  is  complying  with  the 
. formal rules governing the presentation of proposals; 

since certain components would be out of place in a directive, or would have to be 
seriously amended, they have been presented between square brackets. There is, of 
course, no need for a commentary on the Articles in brackets. 

I.  EXPLANATORY  MEMORANDUM 

A. 

THE CASE FOR A PROPOSAL ON ADMISSION 

1. 

The aim of the proposal 

Europe needs a comprehensive approach for dealing with immigration  policy issues.  Some 
important first steps have already been taken to build  a common  strategy  in this area and 
this proposal from the Commission aims to develop these efforts  further.  On the one hand, 
the Convention  sets out  common  rules for  the initial  admission  of third-country  nationals 
to the territory of a Member  State for the purposes of employment,  self-employed  activity, 
study  and  training,  non-gainful  activity  and  family  reunification.  On  the  other  hand,  the 
Convention  sets  out  basic  rights  for  long-term  residents,  including  provisions  related  to 
the  possibility  of  accepting  employment  in  another  Member  State.  It  involves  a  broad, 
integrated  approach  to  admission,  based  on  the  consideration  of  political  coherence. 
Indeed,  to  be  effective,  the  Union's  immigration  policy  must  be  comprehensive;  an 
immigration  policy  can  be  coherent  and  effective  only  if  admission  is  considered  from 
every angle. 

2. 

The balanced approach sought by the Convention 

The  economic  circumstances  which  once  pushed  the  Member  States  to  encourage  a 
steady,  regular  inflow  of  immigrant  workers  and  their  settlement  on  the  territory  of  the 
Union  no  longer  apply.  Member  States  have  therefore  adopted  selective  policies  on 
admission for  paid employment  and self-employed  activity. In the Commission's  view,  the 
current  economic  and  labour  market  situation  does  not  permit  those  policies  to  be 
abandoned, 
immigration 
though  there  can  be  no  question  of  imagining  a  zero 
target. Moreover,  it  would  appear  that  the  same  restrictive  policies  do  not  need  to  be 
applied  in the  case  of admission  for  temporary  work,  such  as  seasonal  work  and  frontier 
work.  These  activities  can  contribute  to  economic  and  social  development  and 
good relationships  with  neighbouring  countries  and  can  dampen  down 
long-term 
migratory pressures. 

As  regards  admission  for  study  purposes,  the  Commission  believes  that  admitting 
students encourages  better  mutual  understanding  and  reflects  the tradition  of  openness in 
European  culture  while  promoting  the  dissemination  of  knowledge.  An  effective  policy 
must,  however,  also  seek  to  prevent  the  entry  rules  from  being  undermined  and  ensure 
that  students  leave  the  territory  of  the  Member  States  after  completing  their  studies. 
This is  also  important  in  order  to  ensure  that  countries  of  origin  do  not  experience  a 
"brain-drain"  effect. 

Unlike admission for  employment,  family  reunification  is a matter of fulfilling  international 
obligations  and  implementing  individual  rights to  which  all the Member  States  subscribe. 
This  is  an  important  factor  for  the  success  of  any  coherent  and  effective  policy  of 
integration.  Legal  certainty  is  essential  in  order  to  guarantee  respect  for  the  right  to 
family  life. 

The Convention  includes a specific  title dealing with  the legal  situation  of third-country 
nationals  resident  on  a  long-term  basis.  Although  long-term  residence  is  distinct from 
initial admission, the provision of rights in this area is an integral part of this proposal and 
ensures its political balance. The Union must encourage the integration of legally resident 
migrants.  Guaranteeing  their  security  of  residence  is  a  vital  prerequisite.  In  its  1991 
communication, the Commission had already stated that "security of stay and permanent 
residence  for  all  those  satisfying  the  stability  criteria  constitute  the  fundamental 
prerequisite for any successful  integration"1. The integration of migrants is an imperative 
dictated  by  the  democratic  and  humanitarian  tradition  of  the  Member  States  and 
constitutes a fundamental  aspect of any immigration policy. The integration of immigrants 
is essential to safeguard equilibrium in our societies. 

3. 

Controlling migratory  flows 

Controlling  migratory  flows  is  a  major  issue.  Achieving  control  depends  in  part  on 
cooperation  with  countries  of  origin  to  influence  the  push  factors  which  cause  the 
emigration of third-country nationals, and in part on action in relation to the pull factors 
which encourage people to enter the territory of Member  States. The first of these areas 
lies outside the scope of the present  Convention.  In relation to the  second,  it  has to be 
borne  in  mind  that  differences  between  Member  States'  legislation  can  work  as  pull 
factors  towards  certain  Member  States.  Measures  adopted  in  one  Member  State  can 
directly  affect  migratory  movements  towards  other  States,  especially  the  neighbouring 
ones. Faced with growing migratory pressure, Member  States should tackle the problem 
with a common legal framework of rules governing admission. 

A second major  issue in controlling migratory flows  is the abolition of checks at internal 
borders. Already in its communication on immigration of  11 October  1991 to the Council 
and  Parliament,  the  Commission  put  the  case  for  closer  alignment  of  the  conditions 
governing the entry of third-country nationals into the Member States, to make control on 
immigration possible2. 

4. 

Taking into account the results achieved in the recent past 

In  introducing  this  proposal,  the  Commission  has  taken  account  of  the  decisions 
previously  adopted  by the Council  on the  harmonization  of  migration  policies.  Already 
in their  report  on  immigration  policy  of  3  December  1991,  approved  by  the 
Maastricht European  Council,  the  Ministers  responsible  for  immigration  recognized  the 
need for  closer alignment of immigration policies. Among the priority issues that needed 
to be dealt with, the report identified: 

• 

• 
• 
• 

1 
2 

the  harmonization  of policy  on  admission for  purposes  such  as family  reunification, 
self-employed  activity or employed work; 
the harmonization of policies on the admission of students and trainees; 
the harmonization of admission on humanitarian grounds; 
the harmonization of the legal provisions governing persons admitted as residents. 

SEC(91)  1855 final,  11  October  1991, point 60. p. 22. 
SEC(91) 1855 final,  11  October  1991. point  12, p. 6. 

The  report  also  recommended  looking  into  the  possibility  of  granting  certain rights to 
third-country nationals who were long-term residents in a Member State. 

Since then, the following decisions in the area of admission policy have beefl adopted: 

• 

• 

• 

the Resolution  on family  reunification  was  adopted  by the  Immigration Ministers 
in Copenhagen in June 19933; 

three Resolutions on the admission of third-country nationals to the territory of the 
Member  States  for  employment,  for  the  purpose  of  pursuing  activities  as 
self-employed  persons  and  for  study  purposes  were  adopted  by  the  Council 
in 1994 4; 

a Resolution on the status of third-country nationals residing on a long-term basis 
in the territory of the Member States was adopted by the Council in 19965. 

These texts are political rather than legal,  and have no legally binding effect.  This applies 
both to the Resolutions  adopted  before  the Maastricht  Treaty entered  into  force,  and to 
those  adopted  after  the  Treaty  on  European  Union  took  effect.  All  the  Resolutions  in 
question  include  many  exceptions  and frequent references  to  specific  national  factors. 
Their interpretation,  and the procedures for "transposing" them into  national  legislation, 
are left  entirely to the Member States' discretion.  The result tends to be an image of the 
differences which already exist from one Member State to another, rather than a first step 
in  developing  a  common  approach.  The  Commission  takes  the  view  that  as  regards 
immigration, the Union needs to  have a legally binding instrument.  The European Union, 
as a union of  states governed  by the rule of law,  should  clearly  spell  out  to  what  extent 
and under what legal conditions admission is possible. 

In the resolution of  18 October  1996 laying down priorities until June  19986, the Council 
called for two issues to be examined: 

the legal status of third-country nationals residing legally in a Member State, and 

family reunification. 

An  exercise  of  this  kind  can  be  carried  out  on  a broader  basis,  considering  also  other 
categories  of  third-country  nationals who  may seek  to  be  admitted  to  a Member  State. 
For that reason, the Commission proposes a comprehensive approach to the phenomenon 
of immigration. 

3 

4 

5 
6 

policies  on 

of  national 

the  harmonization 

Resolution 
on 
SN2828/1/93  WGI1497 REV1. 
Resolution  of  20 June  1994  on  limitations  on  admission  ...  for  employment,  OJ  No  C  274, 
19.9.1996,  p.  3;  Resolution  of  30 November  1994  on  limitations  on  ...  admission  ...  for  the 
purpose  of  pursuing  activities  as  self-employed  persons,  OJ  No  C  274,  19.9.1996,  p.  7; 
Resolution  of  30  November  1994  on  ...  admission  ...  for  study  purposes,  OJ  No  C  274, 
19.9.1996, p. 10. 
OJ No C 80,  18.3.1996, p. 2. 
OJNoC319,  26.10.1996, p.  1. 

reunification, 

family 

6 

This is also consistent  with previous relevant  initiatives taken  by the Commission in"the 
field  of migration policy. In its February 1994 communication on immigration and asylum, 
the  Commission  announced  that  it  intended  to  draw  up  a  Convention  on  family 
reunification,  and to  continue work  on the admission  of workers, the self-employed  and 
students, as well as on the rights of third-country nationals legally resident in the Union7. 
The  Commission  included  the  presentation  of  a  Convention  on  the  admission  of 
third-country nationals in its work programme for 1996. 

5. 

The reasons for a Commission proposal 

In the light of the introductory statement above and its conclusions regarding the  effects 
of the Council Resolutions set out at point 4, the Commission sees a need for a mandatory 
legal  instrument  clearly  establishing  the  conditions  of  admission  and  the  rights  of 
third-country nationals admitted to the territory of Member  States and thus contributing 
firmly  to  certainty  in the  law  applicable  to  them.  In the  areas  covered  by Title  VI the 
Commission  has  a  right  of  initiative  shared  with  the  Member  States  (first  indent 
of Article K. 3 (2)).  It  made  use  of  that  power  just  eleven  weeks  after  the  Treaty  on 
European Union came into force, when it presented to the Council a draft  Convention on 
controls  on  persons  crossing  external frontiers8. In March  1997,  a  proposal  for  a joint 
action on temporary protection of displaced persons was presented to the Council9. With 
the present Convention, the Commission is confirming  its intention of making use of the 
legal instruments currently available to it. At the same time, it is implementing a specific 
commitment made in its 1996 work programme. 

6. 
Article K. 1 in Title  VI  of  the  Treaty  on European  Union  refers  to  immigration 
policy as one of the "matters of common interest", without prejudice to the powers of the 
European  Community.  Article K. 1(3)  on  immigration  gives  a  precise  definition  of  the 
term. Three points justify the choice of this legal basis: 

first, the very heading of paragraph 3 refers  not  only to "immigration policy", in 
other words the mere fact of immigration into a Member State, but more generally 
to "policy  regarding  nationals of third  countries"; this  shows that  the authors of 
the Treaty specifically  intended that this matter  of common interest  should cover 
the position of third-country nationals in general, extending beyond the conditions 
for their entry into a Member State; 

second, the wording of subparagraph (a), which refers to conditions of entry; 

finally,  subparagraph  (b),  concerning  conditions  of  residence,  which  explicitly 
refers to family reunion and access to employment. 

Article K.l(3)  accordingly  states in general and explicit  terms that  questions concerning 
the residence and access to employment of third-country nationals legally admitted to stay 
in a Member State of the Union fall within the scope of cooperation on justice and home 
affairs, notwithstanding Article 2(3) of the Agreement on Social Policy10. 

7 
8 

9 
10 

COM(94) 23 final, 23 February 1994, points 72-79, pp. 21-23, and points 124-125, p. 35. 
Proposal  for  a  Council  Decision  establishing  the  Convention  on  controls  on  persons  crossing 
[the] external frontiers  [of the Member States}, OJ No C 11, 15.1.1994. p. 6. 
OJNoC  106, 4.4.1997, p. 13. 
Annexed to Protocol No 14 to the Treaty on European Union, on Social Policy. 

7 

7. 

Furthermore,  the  proposed  instrument  makes  it  possible  to  satisfy 
fundamental imperatives: 

two 

legal  certainty:  a  Convention  has  unambiguously  binding  legal  force,  like 
a directive; 

democratic transparency: a proposal of this kind is clearly a matter concerning 
one of "the principal aspects of activity" in the field of cooperation on justice 
and home affairs,  as it involves the adoption of a vital measure for controlling 
migratory flows; consultation of Parliament by the Presidency as provided for 
in the second paragraph of Article K.6 is therefore fully justified.  At all events, 
the  Commission  would  argue that  this  be done,  as  in the  case  of  the  draft 
convention on crossing external frontiers. 

The Commission is presenting this proposal for a Convention to the Council as provided 
for in Article K.3(2), second indent, subparagraph (c) of the Treaty. 

B. 

ARTICLE-BY-ARTICLE COMMENTARY 

Article 1 - Definitions 

This Article defines  the terms  used  in the  Convention.  It  also  serves to  make  clear the 
links  with  other  instruments  already  in  force  or  in  preparation,  such  as  the  visa 
Regulations  adopted  under  Article  100c of the  EC  Treaty  or  the  draft  Convention  on 
controls on persons crossing external frontiers of the Union. 

(a) 

(b) 

Admission is taken to mean any case involving entry and a stay of more than three 
months; stays of three months or  less are covered  by the  other  regulations.  It is 
clearly stated that admission is a conditional possibility for third-country nationals 
who seek it, not an automatic  right. 

Residence  authorization.  A distinction  needs to  be  made between  authorization, 
which  is  the  decision  conferring  the  right  to  stay,  and  the  material  form  this 
authorization takes, i.e. the existence or otherwise of a residence permit,  stamp in 
a person's passport, etc. 

Article 2 - Scope 

1. 

At a time when the Union is embarking on a harmonization exercise in respect of 
the  admission  rules,  it  must  stand  by the  existing  set  of bilateral  or  multilateral 
international  agreements,  be  they  of  Community  or  hybrid  status.  This  would 
ensure  that  international  commitments  entered  into  by  the  Community  and  its 
Member States in the WTO context were observed. 

2. 

Provision is made for three specific  exceptions: 

asylum-seekers  whose  status  is  covered  by  other  specific  instruments,  in 
particular  the  1951  Geneva  Convention.  So  that  recognized  refugees  are 
not  treated  unfairly  by  comparison  with  other  third-country  nationals 
staying  in  the  Member  States,  the  provisions  of  Chapter  Vm  of  this 
Convention  concerning  long-term  residents  will  apply  to  them,  provided 
they satisfy the requirements of Article 32; 

displaced  persons  granted  admission  to  a  Member  State  for  temporary 
protection; by definition,  their  position  will change  and they  will  return  to 
their  country  of  origin  once  the  grounds  on  which  they  were  granted 
protection cease to apply. For the moment this isto be taken as a  reference 
to  differing  national  schemes, but  in future,  if the  Commission  proposal  is 
adopted, the reference  would be, to  a temporary protection  scheme  flowing 
from a common approach; 

persons  permitted  to  stay  for  humanitarian  reasons;  their  admission  is 
limited to the territory  of a single Member  State on the basis of a decision 
taken by that Member State alone. 

3. 

The  Convention  does  not  apply  to  persons  covered  by  Community  law. 
Consequently,  neither Union  citizens within the meaning of Article 8 of the  Treaty 
on European  Union nor their  family  members  possessing  third-country  nationality 
and  enjoying  the  right  of  entry  and  residence  in  a  Member  State  by  virtue  of 
legislation  enacted  under  the  Treaty  establishing  the  European  Community  are 
affected.  Nor are third-country nationals who, by virtue of agreements between the 
European  Community  and  its  Member  States  and  third  countries,  enjoy  rights  of 
entry and residence identical to those enjoyed  by citizens of Union Member  States 
and  their  family  members  possessing  third-country  nationality  who  are  entitled  to 
enter  and  reside  in  a Member  State  by  virtue  of  such  agreements.  The  reference 
here  is  particularly  to  nationals  of  States  party  to  the  EEA  Agreement.  And  the 
Convention  is not  applicable  to  workers  having third-country  nationality  who  are 
"posted" by an EC firm to another Member  State. 

Article 3 - Examination of initial applications for admission 

1. 

.  The first  principle is that  an initial application for  admission under  the  Convention 
cannot  be examined  if the applicant  is already  on the territory  of a Member  State, 
except  in the  cases  referred  to  in  Article  31.  At  this  point  it  is necessary  to  take 
account  of  the  fact  that  the  rules  authorizing  stays  of  short  duration  are  not  a 
matter  for  this  convention,  and  that  stays  o'f  short  duration  (three  months 
maximum)  are  not  for  the  purpose  of  enabling  longer  term  stays.  In  addition,  to 
use this short term period of legal residence to apply for admission by virtue of this 
convention,  would  have  the  effect  of  diverting  these  short  stays  from  their 
purpose,  and would amount  to an incentive to stay, albeit illegally, beyond  the end 
of the short  stay. One should note that  a significant  proportion of persons who  are 
currently  present  illegally  entered  the  Member  States  legally,  precisely  on  the 
pretext  of  a short  stay.  Applicants will therefore  have to  submit  their  applications 

from a non-member  country  and will not  be allowed  to  enter  the Member  State 
until notified that their application has been granted. 

2. 

The  decision  whether  to  grant  or  refuse  admission  rests,  of  course,  with  the 
Member State  to  which  the  application  is  made.  However,  there  should  be 
common rules for the examination of applications in order to guarantee applicants 
that their situation will be examined thoroughly and also to assure Member States 
that  applications  are  examined  uniformly  so  that  no  pull  factor  is  generated 
towards one or other of them. 

Article 4 - Travel documents 

1. 

2. 

It would be hard to accept that a Member State, after authorizing the admission of 
a third-country  national,  should  not  be able to  authorize that  person  to  enter its 
territory.  The  issue  of  visas  must  therefore  be  made  as  easy  as  possible. 
Nevertheless, the Member State retains the option of checking that no new factors 
have arisen between the time when admission was authorized  and the time when 
the person comes to enter its territory that might entail refusing them entry. 

The  same  facilities  must  be  granted  to  allow  persons,  if  necessary,  to  travel 
through  the  territory  of  a  Member  State  other  than  that  which  authorized 
admission.  The  possible  risk  to  the  Member  State  of  transit  is  offset  by  the 
existence of readmission procedures between Member States. 

Article 5 - Permitted absences 

1. 

Generally  speaking, third-country nationals seeking admission to  a Member  State 
are  expected  to  remain  there  on  a  regular  basis  for  a  substantial  period.  It  is 
therefore  reasonable  that  if they  leave  the  territory  of  that  Member  State,  they 
should  be required  to  observe certain  conditions  in order to  retain  their  right  to 
stay.  Compelling  them  to  reside  there  permanently  would  run  counter  to  the 
Union's professed goals of freedom and would infringe the rights of the individual. 
They must therefore be allowed the opportunity to leave for a period at least equal 
to the statutory minimum holiday plus a further  period (set  at thirteen weeks) for 
other  purposes  connected  with  their  private  life.  The  reference  to  statutory 
holidays, a standard reference in the context of employees' rights, is used here on a 
mutatis mutandis basis,  being  applicable  to  other  categories  (e.g. self-employed 
persons and students). In addition to absences for private purposes, provision must 
be made for  other cases where the person may need to leave for  reasons directly 
connected  with residence in the Member State (as where a student  needs to visit 
another  county  for  research  purposes  or  where  an  employed  person  is  sent  to 
another  country by the  employer).  In  such  cases, the  limit  as to  duration  would 
not apply. 

2. 

Persons who enjoy long-term resident status within the meaning of Articles 32 and 
33 and are granted special residence facilities are subject to constraints comparable 
to those existing in Community law. 

10 

Provision  must  also be made for  a specific  situation.  Where persons recognized  as 
long-term residents in a Member  State wish to  change Member  State of residence, 
it may turn  out  that they wish to  return  to  the first Member  State  without  having 
their status recognized in the second; in such a situation, the period  of absence set 
by paragraph 2 might be exceeded. 

3. 

It  is  also  necessary  to  make  provision  for  cases  where  third-country  nationals 
know in good  faith that they will have to be absent  for  longer than the  authorized 
period  or where they are obliged to prolong their absence once already outside the 
Member  State  where  they  normally  reside,  especially  for  health  reasons,  for 
example. In cases such as these, the period of absence could be extended,  provided 
the  grounds  cited  are  among  those  included  in  the  list  to  be  drawn  up  under 
measures  implementing  the  Convention,  the  aim  being  to  avoid  discrepancies 
between the Member States. 

Article 6 - Renewal of residence  authorization 

1. 

2. 

3. 

4. 

The  normal  rule  laid  down  here  is  that  third-country  nationals  whose  residence 
authorization  expires may apply locally for  renewal,  provided  they  still  satisfy  the 
requirements for being granted  admission. 

The  second  principle  enshrined  in this Article, which ties in with  Article  3, is that 
residence  authorizations  cannot  be  renewed  on  the  spot  for  reasons  other  than 
those  giving  rise  to  the  initial  authorization,  the  only  exception  being  the  cases 
provided for in Article 31.  Anyone who wishes to remain in a Member  State under 
another heading must therefore  return to a non-member country and submit a fresh 
application from there.  To prevent  any abuses, the person concerned  will not  only 
have  to  be  in  a  non-member  country  to  submit  this  fresh  application  but  will 
have to  await  notification  of  a  favourable  decision  there  before  returning  to  a 
Member State to be admitted again. 

There may be situations in which the need to leave the territory of a Member  State 
to present an application for authorization with a different  status turns out to be an 
excessively  bureaucratic  measure.  Such  might  be the  case  of an  employed  person 
who  becomes  owner  or  shareholder  of  the  company  for  which  he  works. 
The interruption  provided  for  by  the  procedure  of  paragraph 2  might  then 
jeopardize  the business  activity,  and the job  with it.  Provision  consequently  needs 
to  be  made  for  exceptions  for  clearly  defined  categories  of  persons  admitted  for 
employment  purposes. On the other hand, these exceptions  should be set within an 
exhaustive  list, to be prepared  by way of implementing  measures, to  avert  the risk 
of  unnecessarily  depriving  the  general  principle  established  by  the  Article  of  its 
proper impact. 

For  persons  recognized  as  long  term  residents,  the  residence  authorization  is  no 
longer issued for a specific category of admission, it being understood that they are 
allowed  to  have  access  to  any  form  of  employment,  to  study,  or  to  remain  for 
other  purposes.  In  addition,  the  renewal  of  their  residence  authorization  may  be 
granted,  even  if the  reason  for  their  residence  has  changed,  without  their  having 
to leave  the  territory  of  the  Member  States  in  order  to  submit  a  new  application 
for  admission. 

11 

Article 7 - Principles 

1. 

2. 

Since  the  current  state  of  the  labour  market  makes  it  impossible  to  abandon  a 
selective approach to  admission  for  the purposes  of paid  employment,  this  Article 
spells  out  the  conditions  for  the  approval  of  applications.  The  twofold  aim  is  to 
avoid making it more difficult  for businesses to meet their requirements  and  at the 
same time to  avoid  increasing  the  labour  force  available  in a Member  State  when 
there is unemployment  among those already  legally present  there.  Admission  may 
be granted  only if a vacancy cannot be filled in the short term by either  a citizen of 
the Union or a third-country national who is already resident  in the Member  State 
where  the  vacancy  arises  and  is  on  the  regular  labour  market  there,  or  a 
third-country national who is recognized  as a long-term resident.  The last  instance 
reflects one of the rights acquired by long-term residents in other Member States. 

Since  the  Convention  constitutes  a  legal  framework  of  rules  on  admission,  the 
detailed  rules  for  applying  the first paragraph  will  be  laid  down  by  implementing 
measures.  These  will  deal  in  particular  with  the  compulsory  procedure  to  be 
followed  for filling a vacancy so as to ensure that the practical conditions  specified 
in Article  7(1)  are not  satisfied.  What this provision  imposes,  therefore,  is not  so 
much an obligation as to the result to be attained by the authorities  responsible  for 
examining  applications  as  an  obligation  as to  the  manner  in  which  they  proceed. 
When  implementing  measures  are  adopted,  the  existing  Community  provisions 
(under Regulation  (EEC) No  1612/68) will have to be taken  into  account  so  as to 
avert the risk of duplication. 

Article 8 - Procedure 

1. 

This Article  rules  out  admission  being  granted  for  third-country  nationals  to  seek 
work  on  the  spot.  Admission  for  the  purposes  of  employment  is  possible  only  if 
the  person  concerned  already  has  an  employment  contract  and  authorization  to 
take  the  job.  The  original  employment  contract  giving  rise  to  initial  admission 
cannot  run  for  less than  one year.  To  ensure  that  the  initial  admission  is given  on 
the  initial  residence 
terms  that  are  propitious  to 
authorization  will  be  for  at  least  one  year.  As  a  general  rule,  the  residence 
authorization matches the duration of the work contract,  which gives legal  security 
to  the employee  and  to  his employer.  The Member  State  should  not,  however,  be 
able  to  seem  bound  by  the  existence  of  a  long  term  contract  (or  by  a  contract 
which  is  not  of  fixed  duration)  to  be  obliged  to  issue  a  residence  authorization 
.  which  corresponds  to  the  duration  of  the  contract.  That  is  why,  for  the  first 

longer-term 

integration, 

admission, a fixed limit of four years has been established. 

2. 

This  paragraph  provides  for  residence  authorizations  to  be  renewed  and  allows 
applications to be submitted  on the spot. However,  for  renewal  to  be granted,  the 
same conditions as specified  in Article 7(1) must be  satisfied. 

12 

Article 9 - Seasonal  workers 

1. 

2. 

3. 

4. 

Seasonal  work  is  a  real  factor 
in  several  economic  sectors  (hotel  trade, 
agriculture),  and  specific  rules  are  needed  to  allow  third-country  nationals  to 
engage  in  such  activity  while  preventing  them  from  staying  for  longer  than 
necessary.  Seasonal  work  is  characterized  by  a  personal  element  (the  legal 
domicile does not change) and a material element (the type of activity carried out). 

Admission  is  granted  for  a  more  limited  length  of  time  than  for  other  kinds 
of employment  giving  rise  to  admission:  it  may  not  exceed  six  months  per 
calendar year. 

This paragraph  provides for  extension  only if the initial  authorization  was  granted 
for  a  period  of  less  than  six  months  and  spells  out  the  conditions  for  the 
submission  of extension  applications  (submission  of extension  applications  on  the 
spot  by  the  employer,  adequate  grounds).  The  maximum  length  of  a  seasonal 
worker's  stay over a calendar year remains six months. 

Although  a worker's  stay is strictly limited to  six months per  calendar year,  it  can 
be  repeated  from  one  year  to  the  next.  This  paragraph  stipulates  that  when 
applications for  admission are submitted, third-country  nationals who have already 
done  seasonal  work  on  the  territory  of  the  Member  State  will  be  given  priority 
over  third-country  nationals  who  have  never  done  work  of this  kind  before.  This 
provision  should  help to  counter the risk that  seasonal workers may try to  stay  on 
illegally in the Member  State in question after the six-month limit. 

Article  10 - Transfrontier  workers 

1. 

2. 

This provision is intended to encourage contacts and links in border  areas between 
Member  States  and non-member  countries.  The concept  of border  area  is used  in 
the  meaning  given  to  it  in  existing  bilateral  conventions  between  the  States 
concerned.  Rules  derogating  from  the  principles  of  Article  7  are  laid  down  for 
transfrontier  workers,  whose  situation  is  characterized  by  a  personal  element 
(not only does their legal domicile remain unchanged,  but they return every day or 
once a week to the non-member country where they reside). 

Where  they  may work,  however,  is restricted:  it  does  not  include  all the  territory 
of  a Member  State,  but  only  places  in the  border  area  of the  neighbouring  State. 
On  the  other  hand,  there  are  no  restrictions  on  the  type  of  activity  they  may 
engage in. 

Article  11 -  Definition 

This Article defines  admission for  the purposes  of independent  economic  activity,  the key 
feature  being  the  absence  of  any  subordinate  relationship  with  an  employer.  It  must  be 
clear  that  this  definition's  applied  first  and  foremost  for  the  possibility  of  such  a  person 
being  admitted  to  the  territory  of  a  Member  State.  It  covers  two  situations:  where  the 
person  establishes  himself  in  the  host  Member  State  for  the  purposes  of  his  activity  and 
where  he  pursues  his  activity  without  establishing  himself  there,  in  particular  where  he 
enters to provide a service either  as a natural  person  or for  a company  established  outside 
the Union. 

13 

Article 12 - Conditions of admission 

This Article, and the one following it, apply to the first of the situations referred  to in the 
commentary on Article 11. Admission for the purposes of independent  economic activity 
is  subject  to  two  conditions.  Before  entering  the  territory  of  the  Member  State, 
third-country nationals must have sufficient  resources to embark on the activity for which 
they request admission. This is meant to ensure that they genuinely intend to engage in the 
activity  for  which they  seek  admission  and have the  economic  capacity  to  do  so.  The 
second,  purely  economic,  condition  is  designed  to  ensure  that  the  admission  of 
third-country nationals brings in value added for the economy of the country where they 
settle. It should be seen in the most objective light possible. Influence on the employment 
situation  is  one  of  the  least  arbitrary  criteria.  Consequently,  if  within  the  two  years 
corresponding to the minimum residence authorization available, at least one other person 
is  recruited,  whether  full-time  or  part-time,  or  use  is  made  of  service  companies 
(accounting,  data-processing  or  maintenance. services),  or  work  is  regularly  given  to 
subcontractors,  there  will  be  practical  evidence  for  assessing  value  added  in  terms 
of employment. 

It  is  obvious,  also,  that  when  pursuing  their  activity  in  the  host  Member  State 
the third-country  national  must  comply  with  all  relevant  local  regulations.  The 
implementing provisions provided for by the second subparagraph might determine the list 
of authorized activities. 

Article 13 - Residence authorization 

1. 

2. 

Residence  authorization  is granted  for  at  least  two years.  This meets the double 
concern  of harmonizing  the  initial  authorization  period  for first-time immigrants 
entering  for  employment  purposes  and  of  allowing  the  self-employed  time  to 
develop their business. Applications for renewal may only be submitted on the spot 
if they concern the same activity or a continuation or development of it. 

Further  conditions  are imposed  for  the renewal  of residence  authorizations.  The 
applicant must actually have engaged in the activity (this involves checking that the 
initial admission was actually used for its declared  purpose; the aim is to prevent 
abuse of the rules on initial admission). Applicants for  renewal  should be able to 
continue their activity in future.  The third and final condition consists in checking 
the beneficial effect  on the employment market in the Member State. 

Article 14 - Supply of services 

The  second  situation  described  in  the  commentary  on  Article 11 is  where  services  are 
provided without establishment in the territory of a Member State. Given that this covers 
a  wide  range  of  individual  situations  and  that  there  is  an  abundance  of  multilateral 
international  agreements,  such as the GATT, GATS and the like, the conditions for  the 
exercise of this kind of activity should be left  for the implementing provisions,  subject  to 
Article 59(2) of the EC Treaty. 

14 

Article  15 - Admission  for  study  purposes 

Admission is permitted  only if the candidate provides documentary  evidence of admission 
to  an establishment  which must  be  either  public  or  officially  approved,  in  order  to  avoid 
enrolment  at "institutions of convenience".  The types of study giving a right to  admission 
are defined  clearly and exhaustively in order to  cover every possibility available under  the 
Member States' higher education systems. 

Article  16 - Residence  authorization 

1. 

2. 

3. 

The main point here is to ensure that the length of a student's stay strictly depends 
on  the  length  of  the  course;  residence  authorizations  issued  will  therefore  be 
calculated  on the basis of a course's  duration.  To  ensure that  the person  admitted 
actually  follows  the  courses,  residence  authorizations  will  be  valid  for  the  same 
period as the most recent university enrolment. 

The  same  logic  applies  to  the  renewal  of  residence  authorizations.  It  is  for 
authorization  holders  to  prove  that  they  have  actually  followed  the  course 
(attendance certificates,  examination pass certificates,  etc.). There will have to be a 
certain margin as regards the total time taken to  complete a course,  so as to  allow 
for  failures  and  a  right  to  repeat  periods  of  study:  since  this  right  cannot  be 
extended unduly without undermining the aim of admission for  study purposes, the 
permitted  margins will be laid down through implementation measures. Clearly the 
burden  of  proof,  as  well  as  the  means  of  verification,  must  not  be  excessive  as 
compared to those normally required of students who are community citizens. 

Lastly,  to  avoid  discrimination  and reflect  the reality  of courses,  allowance  has  to 
be  made  for  the  fact  that  the  first  year  of  study  (except  in  the  case  of  courses 
followed  after  the  initial  course)  is  often  an  orientation  year.  It  is therefore  quite 
possible that  at the  end  of this first year  a  new  line  of  study  may be  chosen,  and 
students  can  obtain  authorization  on the  spot  to  begin  a new  course  of  study.  Of 
course any such change is allowed  only once and a fresh  request  for  authorization 
has to be made in accordance with Article 3. 

4. 

Detailed  rules  for  applying  this  Article  will  have  to  be  laid  down  through 
implementing measures. 

Article  17 - Employment  authorization  for  students 

This Article  also  builds on  the  Resolution  on  admission  for  study  purposes.  The  general 
principle  is that  admission  for  study  must  not  become  a  disguised  form  of  admission  for 
other  purposes,  in  particular  for  employment.  The  types  of  paid  employment  which 
students may engage in must therefore  satisfy  two  requirements:  the income they  provide 
should be supplementary  and the duration  and intensity of the work  should  not  be such as 
to impair students' proper pursuit of their studies. 

15 

Article 18 - Completion of study 

1. 

There  is a  clear  link  of  continuity  between  the  categories  of  studies  defined  in 
subparagraphs (a), (b) and (c) of Article 15. It is therefore reasonable for students 
who have successfully  completed a course referred to in Article  15(a) to go on to 
take a course of the kind referred  to under (b) and then (c). But compelling them 
to comply with the renewal procedure provided for  in Article 3 would  effectively 
prevent  them from re-enrolling from one year  to  the  next,  because  of  the time 
involved in examining applications. In this case, then, and in this case alone, they 
will be allowed to request an extension of their residence authorization on the spot 
in order to complete a new course of study. By the same token, taking up studies 
at  a  lower  level  should  not  be  treated  similarly.  On  the  other  hand,  research 
activity  of  the  kind  referred  to  in  (d)  (study  grant  in  a  laboratory  or  research 
centre,  etc.)  may well  come just  after  the  end  of  another  course  of  study.  It  is 
therefore quite consistent for activities to which point (d) applies to be authorized 
after an application made locally. 

2. 

Once  study  has  been  completed,  students  must  leave  the  territory  of  the 
Member State.  Students  are  not  allowed  to  return  to  the  territory  of  the 
Member States  in  another  category  unless  they  apply  for  admission  in  that 
category under the normal procedures, in particular those of Article 3. 

Article 19 - Trainees 

1. 

2. 

3. 

This  Article  was  included  here  for  the  sake  of  consistency,  since  vocational 
training,  which  is  primarily  continuing  training,  comes  after  initial  training. 
Trainees, then,  are people already engaged  in working life who want to  improve 
their  qualifications  through  further,  primarily  work-related,  training.  Under  this 
Article, trainees may be admitted  to  a Member  State only if there is a clear and 
obvious link between the professional  curriculum and the contents of the training 
they will undergo  in a Member  State and if the training  cannot  be  done in their 
country of origin because of the level or specialization of the training involved. 

The situation  of applicants  for  admission  as trainees must therefore  be such that 
their  presence  does  not  have  any  impact  on  the  Member  States'  social  welfare 
expenditure  and  does  not  constitute  a  disguised  form  of  admission  for 
employment.  They  must  produce  evidence  of  enrolment  in  the  form  of  an 
agreement  or  contract  with  a  duly  approved  vocational  training  establishment, 
.  fixing  the remuneration during the period of training. They will also have to furnish 
proof that they have social welfare insurance against the risks they may run in the 
Member State where they will be staying. 

The  same principle of ensuring the  closest  possible  correspondence  between the 
period covered by the residence authorization and the length of the training has to 
be applied here, as throughout this Title. Observation of further training in practice 
shows  that  this type  of  training  seldom  runs  for  longer  than  a year,  which will 
therefore  be  the  normal  stay  authorized  initially.  Annual  extensions  will  be 
permitted for continuation of the same training, but for no other reason. 

16 

Article 20 - Specific  programmes 

1. 

2. 

It  should be recalled that through  its budget the Community  conducts  cooperation 
programmes  to  raise  the  level  of  qualifications  among  nationals  of  certain 
non-member  countries.  It  therefore  seems  logical  and  coherent  to  facilitate  the 
admission of such students, trainees and researchers. 

The  implementing  provisions  might  establish  practical  rules  here  (expedited 
procedures, cost reductions, etc.). 

Article 21 - Limit  of scope 

The  scope  of  admission  for  study  purposes is  strictly  limited  to  higher  education,  in line 
with the Council Resolution on this subject.  Primary and secondary education are covered 
by  the  rules  governing  family  reunification.  Although  apprenticeship  is  not  covered  as 
such by the  convention,  it is covered  in practice by some of its provisions; members  of a 
regrouped  family  may  be  eligible  for  apprenticeship  schemes  if they  are  of  the  relevant 
age;  where  apprenticeships  are  organized  by  establishments  of  higher  education  or  the 
like,  it  will  be  part  of  the  standard  curriculum;  and  the  rules  governing  traineeships  can 
also apply to apprentices. 

Article 22 - Conditions  of admission 

The different  titles of this proposal  extensively cover the categories of persons  entitled  to 
apply for  admission. But there are people who do not fall under those provided  for  in this 
Convention,  but  who  cannot  a  priori  be  denied  the  possibility  of  staying  in  a 
Member State:  pensioners,  people  living  on  their  capital  incomes,  writers  receiving 
royalties  and  young  people  with  au pair  status  are  some  examples.  Since,  in  particular, 
these  are  people  who  are  not  seeking  to join  the  labour  market  but  do  clearly  represent 
consumers and investors for the Member State where they are seeking admission, it would 
seem  quite  reasonable  to  consider  their  applications  favourably,  provided  they  satisfy 
certain clear conditions. 

These conditions, which will have to be laid down in detail under implementing measures, 
will  be  designed  to  ensure  that  their  presence  entails  no  new  burden  on  the  host 
Member  State, in particular in terms of social expenditure. 

Article 23 - Residence  authorization 

1. 

2. 

Residence authorizations are granted for at least one year. 

After  that,  Member  States  will  be  able  to  renew  their  residence  authorizations 
either  annually  or  for  longer.  Of  course,  renewal  will  require  that  the  conditions 
specified  in Article 22  are  satisfied,  in particular  as regards  the  production  of any 
evidence  requested. 

17 

Article 24 - Principles 

The right to  family  reunification  derives from the right to  respect  for  family  life  that  is 
enshrined in international law, in particular in the European Convention for the Protection 
of Human Rights and Fundamental Freedoms of 4 November  1950. This Title is intended 
to establish the necessary conditions for the exercise of this right, in accordance with the 
decisions of the European Court of Human Rights.  This entails combining observance  of 
the right to family reunification with the powers of Member States to check the  entry of 
third-country nationals to their territory. 

1. 

2. 

This paragraph spells out the essential  conditions required  for  the  exercise  of the 
right  to  family  reunification: first, legal  residence  in the  Member  State  to  which 
application  is  made  for  reunification;  second,  a  certain  length  of  residence.  The 
length  of  residence  required  was  chosen  to  ensure  applicants'  previous  stability 
(at least  one  year's  residence)  and  their  prospects  of  future  stability  (hence  the 
condition that they have a right of residence valid for  at least two more years). 

Studies may take  several  years  to  complete,  therefore  students  cannot  be  denied 
the  right  to  family  life.  The  conditions  applying  to  this  category  must  also  be 
established.  It  is provided  that  students  may  apply  for  family  reunification  if they 
have been resident for  more than two years in all (stability  of residence  condition) 
and hold an authorization  for at least one year ahead (prospect  of future  stability). 

Article  25  -  Members  of  families  of  Union  citizens  not  exercising  the  right  to 
freedom  of movement 

The  proposal  governs  admission  of  third-country  nationals  into  the  Member  States. 
Community law governs the admission  of third-country  nationals who, being  members  of 
the  families  of  Union  citizens,  are  admitted  on  the  family  reunification  principle  and 
exercise  the  right  to  freedom  of  movement.  There  is  consequently  a  lacuna  as  regards 
family  reunification  in the  case  of  persons  not  exercising  that  right.  National  law  covers 
the situation in some cases, but  generally  on  a restrictive  basis  (age  of children,  rights  of 
relatives in the ascending line). As Union citizenship is a single citizenship, the gaps in the 
current  situation should be filled in by a provision for equal treatment  of all Union citizens. 

Article 26 - Categories of persons entitled to be reunited 

1. 

This Article  defines  those  eligible  for  reunification  as the  members  of  the  nuclear 
family,  in other  words  the  spouse  and  children.  The  marriage  must,  of course,  be 
compatible  with  the  fundamental  principles  of  the  legal  system  of  the  state  to 
which application is made. This means that reunification  of same-sex  spouses or of 
spouses in the case of polygamous  marriages  is not  normally  allowed.  There  is no 
discrimination  against adopted  children; however,  if the adoption  decision was not 
taken by the authorities of the Member  State concerned,  it  must  be recognized  by 
the  competent  authority  there.  In  the  case  of  children  where  only  one  of  the 
spouses is the natural parent,  rather than both (point  (c)), more detailed  conditions 
are  laid  down,  with  no  distinction  between  children  from  the  present  marriage  or 
from previous marriages; this means checking that the parent  seeking to bring in a 
child  has  sole  parental  authority  and  legal  custody,  in  order  to  ensure  that 
reunification  does  not  result  in  de  facto  denial  of  the  custody  rights  of  the 
other parent. 

2. 

3. 

The child must be a minor, in other words younger than the age of legal majority in 
the  Member  State  where  the  application  for  reunification  is  made.  The  1993 
Resolution stated that this age must be between  16 and  18. The choice of the age 
of legal majority  as the anchor point stems from the very definition  of a minor as 
someone  who  is  not  yet  legally  and  economically  independent  of  the  nuclear 
family. Use of this criterion allows the admission rules to be harmonized while still 
respecting the principle of subsidiarity,  since setting the age of legal majority  is a 
matter solely of national law. The second condition laid down in this Article is that 
the  child  must  not  be  married.  Together,  these  two  conditions  ensure  that 
reunification  involving children is possible when they  are still dependent,  de jure 
and de facto, on the applicant. 

Reunification  involving  dependent  relatives  in  the  ascending  line  is  not  an 
obligation under the Convention The Member States retain a power of discretion 
regarding  family  reunification  in this  case.  However,  such  applications  must  be 
considered favourably in principle. The same applies to relatives in the descending 
line  who,  irrespective  of  their  age,  remain  dependent  on  their  parents 
(e.g. seriously  disabled  persons).  Here  the  conditions  laid  down  in  Article 28 
(accommodation and means of subsistence) must be satisfied. 

Article 27 - Fraud 

To  prevent  abuses  from  occurring  in  an  attempt  to  circumvent  the  admission  rules, 
provision  therefore  has  to  be  made  for  penalties  to  counter  attempts  to  misuse  the 
possibility of family reunification. 

1. 

2. 

The first possibility covered by this Article is fraud or falsification:  in the event of 
either being  discovered,  the  penalty  is refusal  of admission  where it  has  not yet 
been authorized or the withdrawal of the residence authorization granted. 

Besides fraud or falsification,  another possible form of abuse involves marriage or 
adoption for the sole purpose of obtaining admission under the heading of family 
reunification.  Where this is proved to be the case, Member States have the option 
of refusing  admission  or  withdrawing  the  residence  authorization.  They  are  left 
with  some  room  for  discretion  in  assessing  such  cases,  as  they  are  generally 
difficult  to prove. 

Article 28 - Accommodation and means of support 

1. 

Anyone  wishing  to  exercise  the right to  family  reunification  must  apply  to  the 
State where they reside.  This Article details the material  conditions  (in terms of 
accommodation and financial  means) which applicants must satisfy  if their request 
is  to  be  accepted.  They  must  have  sufficient  financial  and  material  means  to 
support  their  family  so that  their  exercise  of the right to  reunification  does not 
place  a burden  on the Member  State in terms  of  expenditure.  According  to  the 
provisions  of  Article  24,  the  third-country  national  may  only  enjoy  his  right  of 
family reunification  after he has legal resided in a Member State for one year. This 
means that family members may only enter the European Union at the earliest one 
year  after  the  arrival  of the  applicant.  However,  if the  applicant  waits  a year in 
order to make his application, the arrival of the family could take more than a year 

19 

from the  arrival  of the  applicant,  due to  administrative  processing.  Consequently, 
the third-country national, if he has a right of residence which is valid for  at least a 
year,  may  submit  his  application  for  reunification  six  months  after  his  arrival.  In 
this  way,  due  to  the  shortened  application  processing,  the  arrival  of  the  family 
would be effective  within one year. 

2. 

The  Convention  sets  out  the  fundamental  principles  governing  admission,  while 
, detailed  conditions  regarding  financial  means  and  accommodation  will  be  laid 
down through  implementing  measures. It  already includes the provision  that  there 
must be suitable accommodation and adequate means of support. 

Article 29 - Residence  authorization 

Under  this  provision,  those  admitted  under  the  family  reunification  arrangements  are 
granted  residence authorizations.  These are valid for  the period  that  the initial  applicant's 
residence  permit  still  has  to  run.  The  aim  is  to  ensure,  in  the  period  immediately 
following  a  person's  initial  admission  for  the  purposes  of  family  reunification,  that  the 
period  of validity  of the  initial  applicant's  residence  permit  is exactly the  same  as that  of 
the person  admitted. 

Article 30 - Employment  of persons admitted  for  purposes  of family  reunification 

This  Article  bars  family  members  admitted  for  reunification  from  taking  employment  or 
engaging  in  self-employed  activity  for  six months.  Admission  is  granted  on  the  basis  of 
human rights considerations (the right to live with family,  guaranteed  by international  law) 
rather  than  economic  ones.  In  any  case,  third-country  nationals  who  decide  to  exercise 
their  right  to  family  reunification  must  already  have  sufficient  means  to  support  their 
family when they apply for  admission.  This provision in no way rules out the possibility of 
engaging in gainful  activity after  a period of six months. But unforeseen  events can  always 
occur  in terms  of  family  composition  (need  to  receive  an  orphan)  or  of  income  (loss  of 
job).  Other family  members  should  therefore  be given the  right  to  work  without  awaiting 
the end of the six-month period. 

Article  31  -  Acquisition  of  separate  status  by  persons  admitted  for  purposes  of 
family  reunification 

1. 

As  a  general  rule  the  residence  permit  of  family  members  admitted  for  family 
reunification  is closely  tied  to  the  residence  permit  of the  person  who  applied  for 
their  admission.  However,  human  situations  arise  where,  for  reasons  of  legal 
certainty,  it will be  appropriate  to  grant  them residence  authorization  in their  own 
right.  With  minors  this  would  apply  in the  event  of  the  death  of  their  parents  or 
when  they  reach  the  age  of  legal  majority,  while  with  adults  it  would  occur 
following  a  change  in  marital  status  through  widowhood,  divorce  or  legal 
separation.  Otherwise, unbending adherence to the principle that  residence  permits 
for  all  family  members  should  run  in  parallel  would  lead  to  the  paradoxical 
situation where widowhood,  divorce or legal  separation  obliged  a person  to  leave 
the  country  where  they  had  been  legally  resident,  sometimes  for  many  years.  For 
these  reasons  anyone  in  such  circumstances  can  apply  on  the  spot,  by  way  of 
exception to the rule laid down in Article 3(1). 

20 

2. 

A three-month  time-limit  is  set  for  the  submission  of  applications  (three  months 
before  expiry  of  the  residence  permit  issued  to  the  person  under  the  family 
reunification  arrangements).  This time-limit  may be required  in the case of minors 
who  reach  the  age  of  majority;  in  the  other  cases  referred  to  in  the  preceding 
paragraph,  the  administrative  procedures  should  take  account  of  the  demands  of 
fundamental  humanity,  allowing  the  time-limit  to  be  extended  up  to  a  total  of 
three months.  To  avoid  any  vacuum  legis,  a  provisional  residence  authorization 
will  be  issued  while  applications  are  being  examined,  pending  notification  of  the 
final  decision. 

Article 32 -  Definition 

This  Article  enshrines  the  principle  that  third-country  nationals  legally  resident  in  the 
territory of the Union on a long-term basis should be accorded  specific rights. Such rights 
represent  a  source  of  stability  for  those  concerned  and  thus  serve  as  an  effective 
its  1994 
integration  factor,  along 
communication on immigration and asylum. 

lines  advocated  by  the  Commission 

the 

in 

The conditions for acquiring these rights involve two  factors: 

the  length  of  effective,  regular  and  legal  residence  within  the  meaning  of 
the Convention,  as  a  positive  indication  of  the  person's  integration  in  the 
Member State  in  question.  The  five-year  minimum  set  here  is  considered  long 
enough for  a proper  assessment  of  a third-country  national's  long-term  intentions 
and degree of integration; 

the period  of validity of the residence authorization  granted,  which  should be such 
that on its expiry the holder will have resided ten years in the Member  State  since 
his or her initial admission. 

The acquisition of the rights conferred  on long-term residents thus rests on two principles: 
real and effective  residence and enjoyment  of the right of residence for an effective  total of 
ten years since arrival in the Member State. 

Article 33 - Residence  authorization 

Since  long-term  resident  status  generates  certain  rights,  the  situation  of  persons 
recognized  as such should take some physical form  so that recipients could easily produce 
proof  that  they  possess  this  status.  This  is  best  done  in  such  a  way  as  to  encourage  a 
uniform  approach,  along the same lines as for the adoption  of a standard  format  for visas. 
Above  all,  the  first  effect  of  long-term  residents'  rights  will  be  that  when  a  person's 
residence  permit  (which  enabled  them  to  meet  the  condition  of  point  (b)  of  Article 32) 
expires, they will  be granted  a residence  permit  for  the  maximum  period  available  in the 
Member  State where they reside; this period  may be unlimited  and  must  not  be  less than 
ten years in any event. 

21 

Article 34 - Rights in the Member State of residence 

The second effect  is the acquisition of a number of rights in the Member State where the 
person resides. Persons recognized  as long-term residents no longer need  to  show  good 
cause for admission for a specific purpose as their legal  status automatically entitles them 
to work in an employed or a self-employed  capacity, or to engage in studies, or to reside 
for family reunification  or other purposes.  These rights essentially reflect  the principle  of 
non-discrimination  between  third-country  nationals  who  are  long-term  residents  and 
citizens  of  the  Union.  Long-term  residents  also  enjoy  greater  protection  as  regards  the 
circumstances  in  which  they  can  be  expelled.  Because  of  the  wide  range  of  possible 
situations,  the  precise  nature  of  such  rights  will  have  to  be  laid  down  through 
implementing measures. 

Article 35 - Rights in other Member States 

The last effect  is the gradual acquisition of rights in the other Member  States besides that 
where the person was initially admitted. 

1. 

2. 

3. 

Subject  to  the  general  principles  governing  admission  to  paid  employment, 
long-term  residents  will  be  able  to  apply  for  any  vacancies  that  come  to  their 
notice,  in  particular  through  published  advertisements.  This  possibility  will  not 
increase pressure on the Member  States'  labour markets  since the total  number  of 
immigrants  in the Union will remain unchanged.  Furthermore,  long-term  residents 
seeking integration not  only in a Member  State but within the frontier-free area of 
the Union  as a whole  should  be able to  benefit  from  the  possibility  of  studying in 
one  or  more  other  Member  States  rather  than  only  where  they  reside.  This  will 
also  have  the  effect  of  preventing  discrimination  between  Union  citizens  and 
long-term  resident  third-country  nationals  in  terms  of  access  to  Community 
education  programmes.  The consequence  of granting  these  rights  is that,  without 
prejudice  to  the  usual  provisions  as  regards  public  order  and  safety,  long-term 
residents  seeking  admission  to  Member  States  under  this  Article  will  be  issued 
with the necessary authorizations for entry, if necessary,  and residence. 

Since  those  with  long-term  residents'  rights  are  allowed,  for  example,  to  take 
employment  in another Member  State and therefore  also to remain there, it would 
be  somewhat  illogical  to  regard  them  as  new  arrivals  there.  Consequently,  they 
must  be  allowed,  if  they  wish,  to  have  their  rights  as  long-term  residents 
recognized  in  the  new  Member  State  of  residence.  Such  recognition  would 
become  effective  only  after  a  two-year  probationary  period,  allowing  those  in 
question  to  take  a  clear  decision  about  whether  they  wish  to  settle  in  the  new 
Member  State  on  a  long-term  basis  and  have  the  benefit  of  long-term  residents' 
rights "transferred". 

Third-country  nationals  cannot  be  recognized  as  long-term  resident  in  more  than 
one  Member  State  at  the  same  time.  They  may  have  this  status  recognized 
successively  if they  transfer  their  permanent  residence  to  another  Member  State, 
but  after  any new recognition  they  will  lose  their  rights  as  long-term  resident  in 
their  previous  Member  State  of  residence.  Anyone  who  subsequently  wishes  to 
return  to  a Member  State  where they were  previously  so  recognized  will  have  to 
meet the requirements of paragraph 2. 

22 

Article 38 - Relations with third countries 

1. 

Over the years Member States have maintained  special relationships with various 
non-member  countries,  whether  for  historical  reasons  or  owing  to  geographical 
proximity. Article 2 of the Convention provides safeguards covering the substance 
of bilateral agreements already in force. 

Once the Convention  is approved,  the negotiation  and conclusion  of  subsequent 
bilateral  agreements  between  a  Member  State  and  one  or  more  non-member 
countries could prejudice the common rules on admission in practice. To rule out 
this danger, while still retaining a certain measure of flexibility, any Member State 
intending  to  conduct  negotiations  with  a  non-member  country  on  favourable 
admission rules is obliged to inform the other Member States and the Commission 
in advance. 

2.  The second paragraph  stipulates that such agreements cannot be concluded without 
the  prior  approval  of  the  Council.  This  system  should  allow  Member  States  to 
maintain exceptions without harming the interests of the other Member States in the 
area of admission policy. 

23 

[H. PROPOSAL FOR A 

COUNCIL ACT 

establishing the Convention on rules for the admission of 
third-country nationals to the Member States 

THE COUNCIL OF THE EUROPEAN UNION, 

Having  regard  to  the  Treaty  on  European  Union,  and  in  particular  Article  K.3(2), 
first  indent, point (c) thereof; 

Having regard to the proposal from the Commission11, 

Having regard to the opinion of the European Parliament of ...12, 

Considering that for the purposes of achieving the objectives of the European Union, the 
Member States regard immigration policy and in particular the conditions of residence by 
third-country  nationals  on  the  territory  of  the  Member  States,  including  family 
reunification  and access to employment, as a matter of common interest falling within the 
scope of cooperation as laid down in Title VI of the Treaty; 

Has decided to establish the Convention the text of which is attached, signed this day by 
the Representatives of the Governments of the Member States of the European Union; 

Recommends  its  adoption  by  the  Member  States  in  accordance  with  their  respective 
constitutional rules. 

Done at Brussels, 

For the Council 
The President] 

11 
12 

OJNo... 
OJNo... 

24 

CONVENTION ON RULES FOR THE ADMISSION OF 
THIRD-COUNTRY NATIONALS TO THE MEMBER STATES 
OF THE EUROPEAN UNION 

[THE HIGH CONTRACTING PARTIES to this Convention, Member States of the 
European Union, 

REFERRING to the Act of the Council of the European Union of...; 

1. 

2. 

3. 

4. 

5. 

CONSIDERING  thaf  under  Article  K.l(3)(a)  and  (b)  of  the  Treaty  on 
European  Union  v and  without 
the 
European Community,  immigration  policy  and  in  particular  the  conditions  of 
residence  by  third-country  nationals  on  the  territory  of  the  Member  States, 
including  family  reunion  and  access  to  employment,  are  a  matter  of  common 
interest  falling  within  the  scope  of  cooperation  as laid  down  in Title  VI  of the 
Treaty;] 

prejudice 

powers 

the 

of 

to 

CONSIDERING that  rules governing the conditions of residence and  access to 
employment for  citizens of the Union and other persons covered  by Community 
law  fall  under  the  Treaty  establishing  the  European  Community;  whereas  this 
Convention lays down rules applicable to persons not covered by Community law; 

CONSIDERING  that  resolutions  on  rules  of  admission  and  on  the  status  of 
third-country  nationals residing in the Member  States  on a long-term  basis have 
already been  adopted; whereas this  established  policy  approach  may usefully  be 
enhanced by closer cooperation leading to the laying-down of common legal rules 
governing immigration policy, subject to the requirements of law and order and of 
public security; 

CONSIDERING  that  those  rules  should,  in  particular,  lay  down  conditions  of 
admission  for  the  purposes  of  paid  employment  and  the  pursuit  of  independent 
economic activities, taking due account of the interests of all the Member States; 

CONSIDERING  that  the  rules  laid  down  are  also  intended  to  underpin  the 
Member  States'  openness  to  the  rest  of the world  and  their  level  of  exchanges 
with other  countries,  especially  in the  cultural,  scientific  and  economic  spheres, 
through  common  provisions  on  admission  for  the  purposes  of  education  and 
vocational training; 

6. 

CONSIDERING  that  those rules should allow families to  exercise their right to 
live together, by laying down arrangements for families to be reunited; 

7. ,  CONSIDERING  that  the  common  rules  should  also  define  the  rights  of 
third-country  nationals  residing  legally in a Member  State,  especially  those  who 
are resident on a long-term basis, and the conditions under which they may enjoy 
those rights in  a  Member  State  other  than  the  Member  State  where  they  have 
acquired the status of long-term residents; 

25 

CONSIDERING  that  these  common  rules  should  accord  with  their  common 
international  undertakings,  in  particular  the  European  Convention  on  the 
Protection of Human Rights and Fundamental Freedoms of 4 November  1950 and 
the Geneva Convention  relating to  the  Status  of Refugees  of  28 July  1951, as 
amended  by  the  New  York  Protocol  of  31  January  1967,  and  with  more 
favourable constitutional provisions on asylum; 

CONSIDERING that these common rules on admission, with the exception of the 
rules  concerning  family  reunification  together  with  those  applying  to  persons 
recognized  as  long-term  residents,  confer  no  right  of  residence  and  that  the 
Member States retain their discretionary powers to take actual decisions as to the 
admission of nationals of non-member countries, 

HAVE AGREED AS FOLLOWS: 

26 

CHAPTER I 
DEFINITIONS AND SCOPE 

Article 1 
Definitions 

For the purposes of this Convention: 

(a) 

(b) 

"admission" means permission for a third-country national to enter the territory of 
a Member State in order to reside there for longer than three months; 

"residence authorization" means decision taken by a Member State in whatever 
form is provided by its own legislation to permit a person to reside in its territory 
for  a  period  of  more  than  three  months;  this  does  not  include  temporary 
authorizations which may be issued by Member States in certain cases. 

Article 2 
Scope 

1. 

The  provisions  of  this  Convention  shall  apply  to  nationals  of  third  countries, 
except where more favourable provisions apply under: 

(a) 

bilateral or multilateral agreements concluded between the Community, or 
the Community and its Member States, of the one part, and third States of 
the other part, which entered into force before this Convention was signed; 

(b) 

agreements  concluded  between  one  or  more  Member  States  and 
third countries which entered into force before this Convention was signed. 

It shall not apply to: 

(a) 

(b) 

persons who  have  applied  in a Member  State  for  recognition  of  refugee 
status under the terms of the 1951 Geneva Convention; 

displaced persons granted admission to  stay for temporary protection in a 
Member State; 

.  (c) 

persons  granted  exceptional  authorization  to  stay  in  the  territory  of  a 
Member State, particularly on humanitarian grounds. 

2. 

The provisions  of this Convention  shall not  apply to  citizens of the Union  or to 
nationals  of third  countries  enjoying  a right of  residence  in  a Member  State by 
virtue of Community law. 

27 

CHAPTER n 
GENERAL RULES 

Article 3 
Examination of initial applications for admission 

1. 

2. 

An initial application by a third-country national  for  admission to  a Member  State 
may be considered by the competent  authorities only if the applicant  is outside.the 
territory  of the Member  States when the application  is made  and  remains  so until 
notified  of the decision reached. 

The  Member  State  to  which  application  is  made  shall  examine  applications 
carefully,  having  regard  among  other  things  to  considerations  of  public  policy, 
public security and health.  Common rules on the examination  of applications  shall 
be laid down in accordance with the procedure under Article 36. 

Article 4 
Travel  documents 

Third-country  nationals  must  have  the  necessary  travel  documents  in  order  to  enter 
thetterritory  of  the  Member  State  to  which  they  have  been  granted  admission.  The 
Member  State shall issue any visas required. 

Other  Member  States  shall  issue  any transit  visas necessary  to  enable  such  third-country 
nationals to travel to the Member  State to which they have been granted  admission. 

Article 5 
Permitted  absences 

1. 

2. 

Third-country  nationals  admitted  to  a  Member  State  shall  be  permitted  to  leave 
that Member State for reasons other than those for which they were admitted to it, 
for  a  period  not  exceeding  13  full  weeks  in  any  full  calendar  year  plus 
statutory holidays. 

Where the absence is for  the same reasons as those which justified  their admission, 
the limit as to duration contained in the first subparagraph shall not apply. 

By  way  of  derogation  from  paragraph  1,  third-country  nationals  recognized 
as long-term  residents  in  accordance  with  Articles  32  and  33  may  leave  the 
Member State  where  they  have  been  recognized  as  long-term  residents  for  a 
period  not  exceeding  26  consecutive  weeks.  This  period  may be  exceeded  where 
they  leave  the  Member  State  to  change  their  Member  State  of  residence  in 
accordance with Article 35. 

3. 

Longer authorized  periods of absence than those provided  for by paragraphs  1 and 
2 maybe permitted: 

(a) 

provided  that  a  request  based  on  cogent  grounds  is  submitted  by  the 
person concerned  before leaving and receives approval; 

28 

(b) 

provided that  a request based  on exceptional  grounds is submitted-by-the 
person concerned after leaving and receives approval. 

A list of such grounds shall be defined in accordance with the procedure laid down 
in Article 36. 

Article 6 
Renewal of residence authorization 

1.  Without prejudice to the provisions of the 1951 Geneva Convention, third-country 
nationals may, when their authorized period of residence expires, apply locally for 
the  renewal  of their  residence  authorization  if the  conditions which justified  the 
granting of admission are still met. 

2.  Without  prejudice  to  the  provisions  of  Article  31,  third-country  nationals  may 
only submit  an  application  for  admission  on  a  different  ground  from  that  on 
which admission  was  previously  granted  if they  are  outside  the  territory  of  the 
Member  States.  Fresh  applications  of  this  kind  may  be  considered  only  if  the 
applicant  is  staying  outside  the  territory  of  the  Member  States  when  the 
application is made and remains so until notified of the decision reached. 

3. 

By way of derogation from paragraph 2,  applications for  admission made locally 
on a different  ground from that on which admission was previously granted shall 
be  permitted,  but  only  in  circumstances  strictly  set  out  in  accordance  with  the 
procedure under Aricle 36> for the following persons: 

(a)  persons admitted pursuant to Article 7 or 8 and wishing to reside pursuant to 

Chapter IV; 

(b)  persons admitted pursuant to Chapter IV and wishing to reside pursuant  to 

Article 7 or 8. 

4. 

By way of derogation from paragraphs 2 and 3, third-country nationals who have 
been  recognized  as  long-term  residents  under  Articles  32  and  33  shall  not  be 
required  to  leave  the  territory  of  the  Member  States  in  order  to  submit  an 
application for renewal of their residence authorization. 

CHAPTER III 
ADMISSION FOR THE PURPOSES OF PAID EMPLOYMENT 

Article 7 
Principles 

A  third-country  national  may  be  granted  admission  to  the  territory  of  a 
Member State  for  the  purposes  of  paid  employment  where  a job  vacancy  in  a 
Member State cannot be filled in the short term: 

29 

(a)  by citizens of the Union; or 

(b)  by  a third-country  national  who  is legally resident  in the Member  State and 
already forms part of the regular labour market in that Member State; or 

(c)  by a third-country national who has been recognized as a long-term resident. 

2. 

Measures  for  the  implementation  of  paragraph  1  shall  be  adopted  under  the 
procedure laid down in Article 36. 

1. 

2. 

3. 

1. 

2. 

3. 

4. 

Article 8 
Conditions of admission 

On  their  initial  admission  for  the  purposes  of  paid  employment,  third-country 
nationals  must  already  have  obtained  a,work  contract  of not  less than  one  year's 
duration  and  authorization  to  take  up  that  employment  in  the  territory  of  the 
Member  State  concerned.  Once  these  conditions  are  satisfied,  and  admission  is 
granted, third-country nationals shall be issued with a residence authorization for a 
period  at least  equivalent to the duration of the work  contract.  The first residence 
authorization, however, is limited to a period of four years. 

A  residence  authorization  granted  for  the  purposes  of  paid  employment  may  be 
renewed  if the conditions of Article 7(1) are still satisfieçLwhen the application  for 
renewal is made. 

Measures  for  the  implementation  of  paragraph  2  shall  be  adopted  under  the 
procedure laid down in Article 36. 

Article 9 
Seasonal workers 

For  the  purposes  of  this  Convention  "seasonal  workers"  means  third-country 
nationals who retain their legal domicile in a third  country but  are employed  in the 
territory  of a Member  State in a sector of activity dependent  on the passing of the 
seasons, under a fixed-term contract for a specific job. 

Third-country nationals may be admitted  as seasonal workers for  up to  six months 
in any calendar year, after  which they must return to a third country. 

Where residence  authorization  has been granted  for  less than  six months, this may 
be extended at the place of employment to allow seasonal workers to complete the 
work for which they were originally granted  admission.  The employer must  submit 
the  extension  request,  duly  substantiated,  at  least  one  month  before  expiry  of the 
initial authorization. 

In  admitting  seasonal  workers,  a Member  State  shall  give  third-country  nationals 
who  have  previously  performed  seasonal  work  in  that  State  preference  over 
third-country  nationals  making  their  first  application  for  admission  for  the 
purposes of seasonal work. 

30 

Article 10 
Transfrontier workers 

1. 

2. 

For the purposes of this Convention,  "transfrontier  workers"  means  third-country 
nationals resident in the frontier zone of a third country who  are employed  in the 
frontier  zone of an adjacent Member State and who return to the frontier zone of 
that third country each day or at least once a week. 

Transfrontier workers who are nationals of third countries may be admitted for the 
purposes  of  paid  employment  in the  frontier  zone  of  an adjacent  Member  State 
notwithstanding the principles set out in Article 7 of this Convention. 

CHAPTER IV 
ADMISSION FOR THE PURPOSES OF 
PURSUING AN INDEPENDENT ECONOMIC ACTIVITY 

Article 11 
Definition 

For  the  purposes  of  this  Convention,  "admission  for  the  purposes  of  pursuing  an 
independent  economic activity" means the entry into the territory  of a Member  State  of a 
natural person who is a third-country  national in order to pursue in that Member  State an 
economic activity involving no subordinate relationship to an employer. 

Article 12 
Conditions of admission 

Third-country  nationals  wishing  to  establish  themselves  in  a  Member  State  in  order  to 
pursue  an  independent  economic  activity  may  be  admitted  to  the  territory  of  that 
Member State  on condition  that  they comply with  the rules governing  the  exercise  of the 
activity concerned,  namely if: 

(a) 

(b) 

they  have  sufficient  resources  to  undertake,  in  the  relevant  Member  State,  the 
activity for which they submit their admission application; and 

the  business  generated  by  the  person  admitted  will  have,  during  the  period  of 
validity  of the initial residence authorization,  a beneficial  effect  on  employment  in 
the Member  State in which he resides. 

Measures  for  the  implementation  of  the  first  paragraph  shall  be  adopted  in  accordance 
with the procedure laid down in Article 36. 

Article 13 
Residence  authorization 

1. 

The  residence  authorization  granted  to  third-country  nationals  to  pursue  an 
independent  economic  activity  referred  to  in Article  12 shall be issued  for  at  least 
two years. 

31 

2. 

Applications  for  renewal  may  be  made  in  the  host  Member  State  for  the  same 
activity as that for which initial authorization was given or for an activity which is 
a continuation or development of it. 

When the application for renewal is submitted, third-country nationals must: 

(a)  have actually pursued the activity for which admission was authorized; 

(b)  be  able to  guarantee that they can continue  to  pursue that  activity  lawfully 

and regularly; 

(c) 

satisfy the conditions set out in point (b) of Article 12. 

Article 14 
Provision of services 

The  admission  of  third-country  nationals  to  the  Member  States  to  pursue  activities 
involving the supply of services  shall, without  prejudice to  Community law,  be governed 
by the procedure laid down in Article 36. 

CHAPTER V 
ADMISSION FOR THE PURPOSES OF ST^TDY 
AND VOCATIONAL  TRAINING 

Article 15 
Admission for study  purposes 

Third-country  nationals  may be granted  admission to the territory  of a Member  State  for 
study purposes if they have been admitted to  a State or  State-recognized  establishment  of 
higher education  in order to: 

(a) 

attend preparatory courses for a specific course of study in higher  education; 

(b) 

pursue a course of study; 

(c) 

prepare a doctoral thesis; 

(d) 

pursue  research  activity  as  part  of  a basic  or  advanced  vocational  education  after 
obtaining a degree or higher education diploma, where that  activity is not primarily 
intended to  secure an income. 

Article 16 
Residence  authorization 

1. 

The  period  of  residence  shall  be  limited  to  the  length  of  the  course  of  study 
chosen.  The duration  of the residence authorization  issued  shall be the same as the 
duration  of enrolment  at the establishment  attended. 

32 

2. 

3. 

4. 

Residence authorizations may be renewed  annually.  They shall be renewed-if the 
applicants produce evidence that they continue to satisfy  the requirements set for 
the issuance of the initial authorization and that they have taken any tests required 
by the higher education establishment which they attend. 

Students  may  not  change  their  course  of  study  after  the first year.  If  they  do 
change course  after  that  time, they  shall make  a fresh admission  application  for 
study purposes. 

Measures  for  the  implementation  of  paragraphs  1,  2  and  3  shall  be  adopted  in 
accordance with the procedure laid down in Article 36. 

Article 17 
Employment authorization for students 

Third-country  nationals admitted  to the territory  of a Member  State for  study purposes 
are not authorized to engage in a gainful  occupation, whether in paid employment or in a 
self-employed capacity. Subsidiary or short-term work such as, by way of derogation  from 
Article 9,  seasonal work  shall continue to be open to  them  provided  that  this does not 
interfere with their studies. 

Article 18 
Completion of study 

Third-country  nationals  who  have  completed  one  of  the  categories  of  study  as 
defined in Article  15, and who wish to continue studying under another category, 
may apply for a new authorization in the host Member State. 

Third-country  nationals  who  wish  to  remain  in  a  Member  State  for  another 
initial 
purpose  after  completing 
admission procedure. 

their  studies  must  go 

through 

the 

1. 

2. 

Article 19 
Trainees 

1. 

For  the purposes  of this  Convention,  "trainees"  means workers  whose presence 
in the  territory  of  a  Member  State  is  closely  linked  to  their  wish  to  improve 
their skills and qualifications  in their chosen occupation in order to pursue it in a 
third country. 

. 

2. 

(a) 

(b) 

Third-country  nationals  seeking  admission to the territory  of a Member  State as 
trainees must satisfy the following requirements: 

they shall hold a training agreement with a host  establishment,  guaranteeing them 
sufficient  remuneration to support themselves; and 

they  shall  enjoy  social  security  cover  for  risks  that  may  arise  in  the  host 
Member State. 

33 

3. 

Residence  authorizations  granted  to  trainees  shall be  limited  to  one  year.-If the 
time  required  to  obtain  a  vocational  qualification  is  more  than  one  year,  the 
authorization may be extended annually. In no circumstances may an extension be 
granted to allow the person concerned to take up employment. 

Article 20 
Specific programmes 

Member States shall facilitate the admission of third-country nationals as students, trainees 
or researchers, under cooperation programmes that receive Community funding. 

To that end, implementing measures shall be laid down in accordance with the procedure 
under Article 36. 

Article 21 
Limits of scope 

The provisions of this Chapter shall not apply to: 

(a) 

pupils in primary and secondary education; 

(b) 

apprentices. 

CHAPTER VI 
ADMISSION FOR OTHER PURPOSES 

Article 22 
Conditions of admission 

Third-country  nationals  to  whom  the  provisions  of  Chapters  III,  IV,  V  or  VII  do  not 
apply  may be granted  admission  to  the  territory  of  a Member  State  if they  satisfy  the 
following requirements: 

(a), 

(b) 

they shall have sufficient  means to support themselves without engaging in any of 
the gainful activities referred to in Chapters III and IV; and 

they shall enjoy  social  security cover that  is valid in the Member  State to which 
they are seeking admission; and 

(c) 

they shall be able to show the lawful origin of their means of support; and 

(d) 

they shall have accommodation in the Member State to which application is made. 

Measures  for  the  implementation  of the first paragraph  shall  be  adopted  in  accordance 
with the procedure laid down in Article 36. 

34 

1. 

2. 

1. 

2. 

Article 23 
Residence authorization 

The  initial  residence  authorization  granted  to  a  third-country  national  shall  be 
issued for at least one year. 

Residence  authorizations  may be  extended  for  at  least  one  year.  Third-country 
nationals must  show that  they  continue to  satisfy  the requirements  laid  down in 
Article 22 when they apply for an extension. 

CHAPTER VH 
ADMISSION FOR THE PURPOSES OF FAMILY REUNIFICATION 

Article 24 
Principles 

Third-country  nationals may exercise their right to  family  reunification  provided 
that they have been legally resident in a Member  State for  at  least  one year and 
have the right of residence in that Member State for  at least one year on the date 
when they submit the application provided for in Article 28. 

By  way  of  derogation  from  paragraph  1,  third-country  nationals  enjoying  the 
provisions  of  Article  15 may  submit  the  application  provided  for  in  Article  28 
when they have been legally resident in a Member State for at least two years and 
have the right of residence in that Member State for one more year. 

Article 25 
Members of families of Union citizens not exercising 
the right to freedom of movement 

By way of derogation from this Chapter, family reunification  of nationals of non-member 
countries  who  are  members  of  the  family  of  a  Union  citizen  who  resides  in  the 
Member State  of  which  he is  a  national  shall  be  subject  to  the  same  conditions  as  are 
imposed  by  Articles 10,  11  and  12  of  Council  Regulation  (EEC)  No 1612/68  of 
15 October  1968 on freedom of movement for workers within the Community13 and by all 
other relevant provisions of Community law. 

Article 26 
Categories of persons entitled to be reunited 

1. 

The following  persons shall be admitted  for  the purposes  of family  reunification, 
provided that the marriage is compatible with the fundamental principles of the law 
of the Member State: 

13 

OJ No L 257,  19.10.1968. p. 2. 

35 

(a) 

the resident's spouse; 

(b) 

(c) 

children  of the resident  and his or  her  spouse,  including  children  adopted  in 
accordance with a decision by the authority responsible in the Member  State 
or a decision recognized by that authority; 

children,  including  adopted  children,  of  the  resident  or  his  or  her  spouse 
where  one or  other  of them has sole parental  authority  over those  children, 
has been given custody of them, and is de facto  responsible for them. 

To qualify  for  admission for the purposes  of family  reunification,  children  shall be 
below  the  age  of  legal  majority  in  the  Member  State  concerned  and  shall 
be unmarried. 

Member  States shall give favourable  consideration to family reunification  involving 
dependent relatives in the ascending line as well as other dependent relatives in the 
descending line, provided that the conditions laid down in Article 28 are met. 

Article 27 
Fraud 

Member  States shall refuse  to admit a spouse or a child for the purposes of family 
reunification,  or  shall  withdraw  their  residence  authorization,  if  it  is  found  that 
fraud or forgery  has been used. 

Member  States may refuse  to admit a spouse or an adopted  child for the  purposes 
of family  reunification  or may withdraw their residence authorization,  if it is found 
that the sole purpose of the marriage or adoption was to enable such person to be 
admitted to a Member State. 

Article 28 
Accommodation  and means of support 

To exercise their right to family  reunification,  a third-country  national  shall submit 
an  application  in  the  Member  State  where  he  is  resident  and  at  the  same  time 
furnish  proof that  he has suitable accommodation  and  adequate  means to  support 
his  family  when  reunited.  This application  may be  submitted  six  months  after  his 
entry into the Member  State where he is resident. 

2. 

3. 

1. 

2. 

1. 

2. 

The  conditions  of  paragraph  1  shall  be  laid  down  in  detail  by  implementing 
measures adopted in accordance with the procedure provided for in Article 36. 

Article 29 
Residence  authorization 

Once  a Member  State  has  approved  an  application  for  family  reunification,  it  shall  issue 
residence authorizations to the family members to be reunited, which shall be valid for  the 
remaining  duration  of  the  current  residence  authorization  of the  person  with  whom  they 
are being reunited. 

36 

Article 30 
Employment of persons admitted for the purposes of family  reunification 

1. 

2. 

Persons admitted for the purposes of family reunification shall not be authorized to 
take up employment or pursue an independent economic activity until a period of 
six months from the date of their arrival has elapsed. 

By  way  of  derogation  from  paragraph 1,  the  six-month  period  shall  not  be 
mandatory where there are unforeseen  changes in the composition  or  income of 
the family that generate a need for the persons admitted for the purposes of family 
reunification to be allowed to pursue an activity. 

Article 31 
Acquisition of separate status by persons admitted for the 
purposes of family reunification 

1.  Where  persons  admitted  for  the  purposes  of  family  reunification  are  widowed, 
divorced or legally separated, lose their parents through death or reach the age of 
majority,  they  may  submit  an  application  for  residence  authorization  in  another 
capacity.  This application  shall be examined  in the Member  State to  which they 
were admitted. 

2. 

their  residence  authorization  expires.  However, 

The persons concerned  must  submit their application  no later than  three months 
before 
if  the  residence 
authorization  expires  less  than  three  months  after  the  circumstances  justifying 
admission  have  ceased  to  apply,  this  deadline  shall  be  extended  to  a  total  of 
three months. 

Where necessary, the Member State concerned shall issue them with a provisional 
residence  authorization  for  the  period  during  which  their  application  is  being 
considered until they are notified of the decision reached. 

CHAPTER  Vffl 
THIRD-COUNTRY NATIONALS WHO ARE LONG-TERM RESIDENTS 

Article 32 
Definition 

Third-country  nationals  shall be recognized  as long-term  residents in a Member  State if 
they satisfy the following requirements: 

(a) 

(b) 

they shall have been legally resident  on a regular basis in a Member  State  for  at 
least five years; and 

they  shall hold  an authorization  which permits residence for  a total  period  of at 
least ten years from  their first admission. 

37 

Article 33 
Residence authorization 

1. 

Once third-country nationals acquire recognition as long-term residents, this shall 
be shown by a specific entry on their residence authorization document. 

2.  When their residence authorization referred  to in point  (b) of Article 32 expires, 
third-country nationals who are long-term residents shall be entitled to a residence 
authorization  for  the maximum  period  allowed  in the Member  State where they 
reside, and in any event for not less than ten years. 

Article 34 
Rights in the Member State of residence 

1. 

In the Member State in which they are long-term residents and without  prejudice 
to Community law, third-country nationals recognized as long-term residents shall: 

(a)  have access to the entire territory of that Member State; 

(b)  be authorized to exercise all activities referred to in Chapters III, IV and V; 

(c)  be  authorized  to  reside  for  all  the  purposes  referred  to  in  Chapters VI 

and VII; 

(d)  be  afforded 

increased  protection  against  expulsion,  subject 

to  the 

requirements of law and order and of internal security; 

(e) 

enjoy the same treatment as citizens of the Union with regard to: 

(i) 

access to employment or self-employment; 

(ii)  vocational training; 

(iii) 

trade union rights; 

(iv) 

the right of association; 

(v)  access to housing, whether in the private, public or para-Statal sector; 

(vi)  social welfare; 

(vii)  schooling. 

2. 

Measures  for  the  implementation  of paragraph  1 shall  be  defined  in  accordance 
with the procedure laid down by Article 36. 

38 

Article 35 
Rights in other Member States 

1. 

A third-country national recognized  as a long-term resident may: 

(a) 

apply  for  employment  in  another  Member  State  by  answering  a  vacancy 
known  to  him,  subject  to  compliance  with  the  principles  laid  down  in 
Article 7; 

(b) 

apply  to  pursue  a  course  of  study  as  defined  in  Article  15  in  another 
Member State. 

V 

In the cases shown in the first subparagraph,  if the person  obtains a work  contract 
or enrolment in an establishment  of higher education, the Member  State concerned 
shall  admit  the  third-country  national  concerned  and  shall  issue  him  with  the 
necessary authorizations, including those relating to residence. 

A third-country  national settled in accordance with paragraph  1 in a Member  State 
other  than  that  which  has  recognized  him  as  a  long-term  resident  shall  be 
recognized  as  such  likewise  in his new Member  State  of residence,  after  a period 
of  two  years'  residence.  This  shall  be  shown  by  the  issue  of  a  residence 
authorization  for  a period  equal to  that  which  enabled  him to  be  recognized  as a 
long-term resident in his previous Member  State of residence. 

A  third-country  national  recognized  as  a  long-term  resident  of  a  Member  State 
shall cease to be recognized  as such in that Member  State once he is recognized  as 
a long-term resident of another Member State in accordance with paragraph 2. 

CHAPTER IX 
FINAL PROVISIONS 

[Article 36 
Procedure for the adoption of implementing  measures 

Subject  to  paragraphs  2  and  3,  implementing  measures  provided  for  in  this 
Convention  shall  be  adopted  within  the  Council  by  a  two-thirds  majority  of  the 
High Contracting Parties. 

-  The  implementing  measures  referred  to  in  Articles  6(3),  7(2),  8(3),  12,  and  34 
shall  be  adopted  by  common  accord  amongst  the  High  Contracting  Parties 
within two  years  of  publication  of  the  act  establishing  this  Convention  in  the 
Official Journal of the European  Communities. 

After  the period  set  out  in the first subparagraph,  the implementing  measures  shall 
be adopted  in accordance with paragraph  1. 

2. 

3. 

1. 

2. 

3. 

in  Articles  14  and  22  and  any 
The  implementing  measures  referred 
implementing  measures  not  expressly  provided  for  in  this  Convention  shall  be 
adopted by common accord  amongst the High Contracting Parties. 

to 

39 

4. 

The implementing measures referred to in paragraphs  1, 2 and 3 shall be published 
in the Official Journal of the European Communities. 

Article 37 
Jurisdiction of the Court of Justice of the European Communities 

1. 

2. 

Any  dispute  between  Member  States  or  between  a  Member  State  and  the 
Commission as to the interpretation or application of this Convention shall first be 
considered by the Council with a view to reaching an settlement. If no solution is 
found within six months, the matter shall be referred to the Court of Justice of the 
European Communities by any party to the dispute. 

The  Court  of  Justice  shall  have jurisdiction  to  give  preliminary  rulings  on  the 
interpretation of this Convention. Any court or tribunal of a Member State against 
whose decisions there is no judicial  remedy under  national  law  shall request  the 
Court of Justice to give a preliminary ruling on a question raised in a case pending 
before  it  concerning the  interpretation  of this  Convention,  if it  considers  that  a 
decision on that question is necessary to enable it to give judgment.] 

Article 38 
Relations with third countries 

Any  Member  State  which  intends  to  conduct  negotiations  wit!?, a  third  country  to  lay 
down more favourable  rules for the admission» of nationals of that  State shall inform the 
other Member States and the Commission in good time. 

No  Member  State  may  conclude  such  agreements  with  one  or  more  third  countries 
without the prior approval of the Council. 

[Article 39 
Safeguard  clause 

The provisions  of this  Convention  shall not  preclude  derogations from its  clauses by a 
Member  State under the provisions of Article K.2(2) of the Treaty on European Union. 
Such derogations  may be made only in exceptional  cases and  shall be confined  to  such 
period as is strictly necessary. 

A  Member  State  availing  itself  of  this  option  shall,  in  so  doing,  take  into  account 
the interests  of  the  other  Member  States  and  keep  both  them  and  the  Commission 
closely informed. 

Article 40 
Reservations 

Reservations shall not be permissible in respect of this Convention. 

40 

Article 41 
Adoption and entry into force 

1. 

This  Convention  shall  be  submitted  for  adoption  by  the  Member  States  in 
accordance with their respective constitutional  requirements. Each Member State 
shall initiate the national procedure for adoption no later than six months after the 
act establishing this Convention has been published in the Official Journal of the 
European Communities. 

2.  Member States shall notify the depositary of the completion of their constitutional 

3. 

4. 

1. 

2. 

requirements for adopting this Convention. 

V 

This Convention shall enter into force on the first day of the month following the 
expiry of a two-month period after  the notification  referred  to in paragraph 2 by 
whichever Member State, being a member of the European Union on the date of 
adoption by the Council of the act establishing this Convention, is the last to  fulfil 
that formality. 

The  provisions  of  this  Convention  shall  apply from the first day  of  the  month 
following  the  expiry  of  a  two-month  period  after  the  Convention  has  entered 
into force. 

By way of derogation from the first subparagraph,  the provisions relating to the 
adoption  of  the  implementing  measures  referred  to  in  Article  36  shall  apply 
from  the  date  when  the  Act  establishing  this  Convention  is  published  in  the 
Official Journal of the European Communities 

The implementing  measures  shall  enter  into  force  at  the  earliest  on the  date  of 
entry into force of this Convention. 

Article 42 
Amendment of the Convention 

Amendments  to  this  Convention  or  to  measures  implementing  it  may  be 
proposedfby  any Member State, High Contracting Party, and by the Commission. 
All  proposed  amendments  shall  be  sent  to  the  Council  and,  if  necessary,  to 
the Commission., 

The  Council  shall  unanimously  decide  on  any  amendments  to  this  Convention, 
which it shall recommend to the Member  States for  adoption  in accordance with 
their respective constitutional requirements. The amendments shall be published in 
the Official Journal of the European Communities after  adoption by the Council. 
Each Member State shall initiate the national procedure for adoption no later than 
six months after the amendments are published in the Official Journal. 

3. 

Amendments adopted  in accordance with paragraph  2 of this  Article  shall enter 
into force in accordance with Article 41(3). 

41 

4. 

1. 

2. 

3. 

4. 

1. 

2. 

The  Council  shall  decide  on  amendments  to  measures  implementing  this 
Convention in accordance with the procedures laid down for the adoption of those 
implementing measures. Such amendments shall enter into force on the first day of 
the month following the expiry of a two-month period after  their adoption by the 
Council, save where otherwise provided in the Council act adopting them. 

Article 43 
Accession by new Member States 

This Convention shall be open to accession by any State that becomes a member 
of the European Union. 

The text  of this Convention  in the language or languages  of the  acceding  State, 
drawn up by the Council, shall be authentic. 

Instruments of accession shall be deposited with the depositary. 

This Convention shall enter into force with respect to any State that accedes to it 
on the first day of the month following the expiry of a two-month period following 
the date of deposit of its instrument of accession or on the date of entry into force 
of the Convention if it has not already entered  into force  at the time of expiry of 
the said period. 

Article 44 
Depositary 

The  Secretary-General  of  the  Council  of  the  European  Union  shall  act  as 
depositary of this Convention. 

The depositary shall publish in the Official Journal of the European Communities 
information  on  the  progress  of  notifications,  accessions,  amendments  and  entry 
into force and any other communication concerning this Convention.] 

[IN  WITNESS  WHEREOF,  the  undersigned  Plenipotentiaries  have  hereunto  set 
their hands. 

on 

Done  at 
in  a  single  original,  in  the  Danish,  Dutch, 
English, Finnish,  French,  German,  Greek,  Irish,  Italian,  Portuguese,  Spanish  and 
Swedish languages, each text being equally authentic, such original remaining deposited in 
the archives of the General-Secretariat of the Council of the European Union.] 

42 

ISSN 0254-1475 

COM(97) 387 final 

DOCUMENTS 

EN 

06  04  11 

Catalogue  number  :  CB-C0-97-438-EN-C 

ISBN  92-78-23890-2 

Office  for  Official  Publications of the European  Communities 

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