Opinion of the Economic and Social Committee on the "Proposal for a Council Directive on the conditions of entry and residence of third-country nationals for the purpose of paid employment and self-employed economic activities"
Date: 2002-01-16
Institutions: European Economic and Social Committee
Subjects: foreign national, residence permit, self-employed person, wage earner

3.4.2002

EN

Official Journal of the European Communities

C 80/37

Opinion of the Economic and Social Committee on the ‘Proposal for a Council Directive on the
conditions of entry and residence of third-country nationals for the purpose of paid employment
and self-employed economic activities’

(2002/C 80/08)

On 21 September 2001 the Council decided to consult the Economic and Social Committee, under
Article 262 of the Treaty establishing the European Community, on the above-mentioned proposal.

The Section for Employment, Social Affairs and Citizenship, which was responsible for preparing the
Committee’s work on the subject, adopted its opinion on 19 December 2001. The rapporteur was
Mr Pariza Castan˜ os.

At its 387th plenary session (meeting of 16 January 2002) the Economic and Social Committee adopted
the following opinion with 93 votes in favour and two abstentions.

1.

Introduction

legislation are needed in order to make it easier for immigrants
to enter legally. The proposed Directive should respond to this
need for new legislation.

1.1.
The proposal for a Directive responds to the need to
regulate a very important aspect of Community immigration
policy, i.e. the entry and residence of third-country nationals
for the purpose of paid employment or self-employed econ-
omic activities in a Member State.

According to the Commission Communication on a
1.2.
Community immigration policy (1), the lack of proper legal
channels for labour migration is one of the reasons why such
immigrants enter illegally (2). The Communication also points
out that the European Union’s demographic and economic
needs call for a more open immigration policy (3) and, as
a consequence, more accessible legal entry channels for
workers (4).

1.3.
Existing conditions of entry in the Member States are
so restrictive that it is very difficult for migrants to enter
legally. Most third-country nationals therefore enter illegally,
even though they make a significant contribution to the
European economy.

According to the Commission Communication, the
1.4.
European Union must recognise the positive contribution of
immigrant labour and accept that immigration is likely to
increase in the future. Significant changes to immigration

(1) COM(2000) 757 final.
(2) Point 3.1 of the Communication:

‘...Many economic migrants
have been driven either to seek entry through asylum procedures
or to enter illegally. This allows for no adequate response to
labour market needs and plays into the hands of well organised
traffickers and unscrupulous employers’.

(3) Point 2.4 of the Communication.
(4) Point 3.4.2 of the Communication. Paragraph 5: ‘...to facilitate
rather than create barriers to the admission of economic migrants’.

2. Gist of the proposed Directive

2.1.
The Directive regulates, in two separate chapters, the
entry and residence of third-country nationals for the purpose
of paid employment or self-employed economic activities.

In order to work as an employed person, third-country
2.2.
nationals — or their future employer on their behalf — must
apply for a ‘residence permit — worker’. This application must
be submitted via the representation of the Member State in
which the applicant is resident, or in the territory of the
Member State concerned, if the applicant is already legally
present there.

The application must be accompanied by various
2.3.
documents, such as the offer of work and proof that this job
vacancy cannot be filled on the labour market of the Member
State concerned. The applicant must also submit documents
proving the necessary skills, evidence of having sufficient
resources, a certificate of good conduct (if required by the
Member State), sickness insurance, etc.

The requirement of proof that a job vacancy cannot be
2.4.
filled in a Member State is deemed to be fulfilled if the vacancy
has been made public for four weeks via employment services
(including Community employment services, i.e. EURES) and
has not been filled by persons with priority in employment,
i.e. citizens of the Union and third-country nationals who meet
the criteria laid down in the Directive.

2.5.
Each Member State may define specific sectors which
suffer from an ongoing labour shortage. Employers in these

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sectors will not have to make vacancies public, but will be able
to contract third-country nationals directly.

2.6.
Initial permits are temporary (maximum of three years)
and renewable. Applications for renewal are subject to the
same requirements as initial applications. During the first
three years of residence, renewals are subject to the criteria
concerning Community preference in employment.

A permit may be revoked if the holder has been
2.7.
unemployed for a period exceeding three months within a 12-
month period, during the first two years of residence, and six
months after the first two years.

2.8.
The Directive lays down the rights conferred on holders
of a ‘residence permit — worker’, but grants Member States
the power to restrict some of these rights.

2.9.
The Directive also defines other permits and the
specific conditions for obtaining such permits, i.e. ‘residence
permit — seasonal worker’, ‘permit — transfrontier worker’,
‘residence permit — intra-corporate transferee’,
‘residence
permit — trainee’ and ‘residence permit — youth exchange/au
pair’.

2.10.
In order to work as a self-employed person, third-
country nationals must apply for a ‘residence permit — self-
employed person’. The application may be submitted in their
country of origin or in the territory of the Member State
concerned if the applicant is legally present there. Applicants
must also produce evidence of sufficient financial means to
cover the minimum investment, as well as other documents,
such as a certificate of good conduct (if required by the
Member State), proof of the necessary skills, etc. Applicants
must also demonstrate that the envisaged activity will benefit
employment or economic development in the Member State
concerned.

2.11.
The ‘residence permit — self-employed person’ will
be subject to similar deadlines and similar conditions of
renewal and revocation as the ‘residence permit — worker’.

3.2.
According to the proposed Directive, the only legal
channel for labour migration is prior possession of an offer of
employment. While this is clearly the main channel, it cannot
be the only one. Possession of an offer of employment while
still in the country of origin may be an appropriate condition
for temporary and specialised workers (engineers, computer
experts, etc.) and workers recruited by large and medium-sized
companies. However, when the person concerned works in a
field such as domestic service, child care, care of the elderly or
arts and crafts, or for a small company, it will be essential for
the employee and the migrant worker to know each other
beforehand.

3.3.
Immigration legislation that aims to provide legal
channels for immigration into the Member States of the
European Union must provide for two different entry channels.
The first is discussed in the Directive,
i.e. entry based on
possession of an offer of employment while still in the country
of origin. The second channel is to enter a Member State
temporarily in order to seek employment.

If legislation only allows for the first channel, some
3.4.
workers will enter the Union legally, but others will probably
continue to enter illegally and work in the shadow economy.

For this reason the Committee proposes introducing a
3.5.
temporary six-month entry and residence permit
for the
purpose of seeking work, which would be monitored by
each Member State in cooperation with the social partners.
Applicants for these permits would have to provide proof of
sufficient resources and sickness insurance. They would also
have to provide information on their professional expertise.

The proposal

3.6.
for a Directive also incorporates a
number of restrictive criteria from existing immigration legis-
lation in the Member States, e.g. the conditions governing
(Article 7) a
applications for (Article 5) and renewal of
residence permit, and the possibility of revocation if the holder
has been unemployed for more than three months within a
12-month period (Article 10(3)(a)). These aspects are discussed
below.

3. General comments

4. Specific comments

The proposal for a Directive must help meet the
3.1.
objective stated by the Commission,
i.e. to facilitate legal
immigration and simplify entry and residence procedures.
However, the Committee is not convinced that the conditions
of entry proposed in the Directive are the only ones that would
allow all types of workers (skilled and unskilled) to enter
legally.

4.1. Application for a ‘residence permit — worker’ and ‘residence

permit — self-employed person’. Article 5(2)

4.1.1.
Applications for residence for the purpose of paid
employment or self-employed economic activities may be

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submitted in the territory of the Member State concerned,
providing the applicant is legally present there. This condition
may, however, prevent existing illegal immigrants from reg-
ularising their situation: only by giving them the option of
submitting their application for residence in the Member State
itself can they attain legal status. Although this Directive does
not address illegal immigration, it should remain neutral on
this point so as not to shut the door on possible national
regularisation measures.

4.4. Renewal of the ‘residence permit — worker’. Article 7(1)

According to Article 7(1), applicants for renewal
4.4.1.
must submit the same documentation as applicants for an
initial permit. This is highly restrictive and could lead to many
third-country nationals with legal residence falling foul of the
law. This Committee therefore believes that requirements for
renewal must be simplified as far as possible.

4.5. Restriction of the permit to specific professional activities or

fields of activities. Article 8

4.2.

Particulars and documents that must accompany applications
for a ‘residence permit — worker’. Article 5(3)

4.2.1.
Some of the requirements concerning particulars and
documents that must accompany applications for a ‘residence
permit — worker’ are inappropriate. The proof of good
conduct requirement (Article 5(3)(e)) may cause applicants to
suffer arbitrariness or discrimination by the authorities in their
country of origin. Evidence of the skills necessary for the
performance of the envisaged activities (Article 5(3)(g)) should
only concern the future employer, as is the case with any other
employee. The requirement of sufficient resources to support
the applicant (Article 5(3)(h)) is irrelevant if the applicant has
submitted proof of an offer of work. Neither should sickness
insurance be required, as applicants will be eligible through
their employment. The Committee believes these requirements
should be reconsidered.

4.3. Application of the proof laid down in Article 6 to renewal of

permits. Article 5(4)

4.3.1. Where job vacancies are concerned, nationals and
citizens of the Union should have priority over new applicants
for residence, but not over third-country nationals who have
already been granted legal residence. This Committee therefore
suggests shortening Article 5(4) as follows:
‘Third-country
nationals who have been legally resident in a Member State,
with a “residence permit-worker”, shall not be required to
provide evidence of fulfilment of the requirement laid down in
Article 6’.

The restriction of

4.5.1.
to specific
professional activities or fields of activities or to specific
regions should not apply to renewals.

the initial permit

4.6. Revocation of the ‘residence permit — worker’. Article 10

4.6.1.
The Committee believes that the clause allowing a
residence permit to be revoked due to a period of unemploy-
ment exceeding three months within a 12-month period,
during the first two years, or six months after two years
(Article 10.3) should be deleted. This is a very restrictive
measure which will cause third-country nationals considerable
insecurity.

4.7. Rights of holders of a ‘residence permit — worker’. Article 11

4.7.1.
The Committee proposes including a new paragraph
in Article 11 to the effect that the rights granted to holders of
a ‘residence permit — worker’ (as laid down in Article 11(1))
should be supplemented by the following, insofar as these
conditions also apply to nationals:

— right to education and study grants;

— right to teach and carry out scientific research;

— right to social assistance for access to housing;

— right to free legal aid for people in need.

4.8.
The clause allowing Member States to restrict some of
these rights (Article 11.2) should be reconsidered as it could
give rise to discriminatory measures.

In the same vein, the Directive should stipulate that
4.3.2.
a ‘residence permit — worker’ will always be renewed with
free access to the labour market,
i.e. renewals will not
be subject to the condition of Community preference in
employment. Article 7(2) must therefore be amended, as it
currently states that third-country nationals are subject to this
condition during the first three years of residence.

4.9.

Seasonal workers — deposit of a security

4.9.1.
The Committee thinks that the possibility for the
Member States to require employers to deposit a security —

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refundable on the return of the seasonal worker — should be
reconsidered. It is not in the power of employers to ensure
that seasonal workers actually return to their home State.

three months within a 12-month period, during the first
two years, or six months after two years (Article 23(3)). The
Committee believes this radical measure must be reconsidered
if the self-employed person submits a new ‘migration plan’.

4.10. Application for a ‘residence permit — self-employed person’.

Article 18(2)

Applications

for a ‘residence permit — self-
4.10.1.
employed person’ may also be submitted in the territory of the
Member State concerned, providing the applicant is legally
present there. In this instance, too, the Committee would point
out that the Directive must not shut the door on possible
national regularisation measures.

4.14. Rights of holders of a ‘residence permit — self-employed

person’

4.14.1.
In the same way that Article 11 defines the rights
of holders of a ‘residence permit — worker’, the rights of self-
employed persons must also be defined, taking account of the
comments made in point 4.8 of this opinion.

4.11.

Particulars and documents that must accompany applications
person’.
a
for
Article 18(3)

permit — self-employed

‘residence

and

The

person’

particulars

documents

4.11.1.
that must
accompany an application for a ‘residence permit — self-
conduct
employed
(Article 18(3)(e)). The Committee believes that this requirement
should be reconsidered as it may cause applicants to suffer
arbitrariness or discrimination by the authorities in their
country of origin.

include

proof

good

of

4.12. Renewal of the ‘residence permit — self-employed person’.

Article 20(1)

4.12.1.
As in the case of workers, self-employed persons
wishing to renew their residence permit during the first three
years must submit the same documentation as applicants for
an initial permit. The Committee believes that renewals must
be subject to less stringent requirements than the initial
application, in order to help immigrants keep their situation
legal.

4.12.2.
The initial restriction of Article 21 to specific
activities or fields of activities or to a specific region should
not apply to renewals.

4.13. Revocation of ‘residence permit — self-employed person’.

Article 23

5.

Final comments

5.1.
The Commission will shortly present a Communi-
cation on combating illegal immigration. Although the Com-
it would
mittee is to issue an opinion on this matter,
reiterate in the present opinion the comments it made on the
Commission Communication on a Community immigration
policy (1), viz.
‘The most important “pull” factor in non-
Community immigration has been the existence of an available
labour market. The most noteworthy aspect is that a labour
market specifically geared to illegal immigrants has been able
to exist’. According to the Committee therefore: ‘Combating
the black economy, which profits from illegal immigration,
requires practical legal measures and social agreements’.

The Committee calls on the European Council,

in
5.2.
accordance with the Laeken conclusions,
to demonstrate
greater commitment and alacrity in drawing up a genuine
common asylum and immigration policy, in so doing it should
support the Commission’s initiatives and take into account the
ESC’s opinions.

5.3.
In the Committee’s view the European Union and the
Member States should ratify the International Convention on
the Protection of
the rights of all migrant workers and
members of their families, as approved by the UN General
Assembly in 1990.

4.13.1.
A ‘residence permit — self-employed person’ may
also be revoked due to a period of unemployment exceeding

(1) ESC opinion in OJ C 260, 17.9.2001.

Brussels, 16 January 2002.

The President

of the Economic and Social Committee

Göke FRERICHS