Source: EURLEX
Language: en
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# 52013SC0078

**COMMISSION STAFF WORKING DOCUMENT EXECUTIVE SUMMARY OF THE IMPACT ASSESSMENT Accompanying the document Proposal for a Directive of the European Parliament and of the Council on the conditions of entry and residence of third-country nationals for the purposes of research, studies, pupil exchange, remunerated and unremunerated training , voluntary service and au pairing Recasting and amending Directives 2004/114/EC and 2005/71/EC /\* SWD/2013/078 final \*/**

  

1.
INTRODUCTION
AND POLICY CONTEXT

Article 79 of
the Treaty on the Functioning of the European Union (TFEU) entrusts the EU with
the task to develop a common immigration policy aimed at ensuring efficient
management of migration flows and fair treatment of third-country nationals
residing legally in the Member States.

Directive
2004/114/EC sets out mandatory provisions for the admission of students who are
third-country nationals. It was left optional to Member States to apply the
Directive to school pupils, volunteers and unremunerated trainees. If they meet
the conditions, students are entitled to a residence permit and they have
certain rights with regard to employment or self-employment, which allows them
to cover part of the cost of their studies and move between different Member
States to pursue their studies. Directive 2005/71/EC provides for a fast-track
procedure for admitting researchers from third countries who have signed a
hosting agreement with a research organisation approved by the Member State. The hosting agreement confirms that there is a valid research project, that
the researcher has the scientific skills to complete it and that he/she has
sufficient resources and health insurance. Researchers can stay in another Member State as part of their research project, and can teach in accordance with national
legislation.

The
Commission presented reports on the implementation of these two Directives to
the European Parliament and the Council in 2011. The reports showed that there
were a number of weaknesses in the Directives. The existing Directives,
adopted by the Council in simple consultation with the European Parliament, do
not address some of the difficulties that applicants who want to come to the EU
face, in particular regarding visas. The current provisions are not always
fully in line with Union programmes including mobility measures and provide
weak procedural guarantees. They are insufficiently clear or binding,
particularly for students. The implementation reports therefore concluded that
the Directives needed to be improved.

This
conclusion is reinforced by the fact that the policy context of today is very
different to that in which the Directives were adopted. Human capital
is one of Europe’s key assets in the context of the Europe 2020 Strategy and
the need to ensure smart, sustainable and inclusive growth. Immigration from
outside the EU is one source of highly skilled people, and third-country
national students and researchers in particular are groups which are
increasingly sought after.

Any
initiative in the area of migration should also be seen in the wider context of
the EU’s dialogue and cooperation with third countries in terms of its foreign
policy objectives and external migration policy, as defined by the renewed EU
Global Approach to Migration and Mobility (GAMM). Fostering people-to-people
contacts and encouraging action on education are important aspects of this
policy across the globe, especially in countries in the EU’s immediate
neighbourhood and its strategic partners. This provides mutual enrichment through
the benefits of cultural, social and linguistic exchanges. Events in the southern
Mediterranean over the past months in particular confirm the importance of fostering
stronger people-to-people contacts and providing opportunities for exchanges,
especially for young people. The EU also needs to reconcile its objective of
promoting the inward mobility of researchers and students with its commitment
to helping the developing countries affected to deal with the brain drain in
critical sectors.

PROBLEM
DEFINITION

The biggest
problem with the two Directives relates to authorisations for third-country
nationals to enter and stay in the EU (long-term visas and/or residence
permits). Legal provisions are often complex and unclear. Procedures are lengthy
and not always fairly or consistently applied. For the groups for which
the immigration procedure requires an organisation to initiate and facilitate
admission (in particular school pupils, trainees and volunteers), fragmentation
across the EU entails a lot of resources and work. This is because several,
sometimes divergent frameworks need to be taken into account.

Although the
rights of the third-country nationals concerned have evolved with the adoption
of the Single Permit Directive, some groups risk not being fully covered by its
provisions, due to existing limitations.

Current provisions
on immigration are not sufficiently supportive of Union programmes including
mobility measures such as Erasmus Mundus or Marie Curie. This can lead to
problems with admission procedures and intra-EU mobility. Intra-EU mobility is
not only a problem for the beneficiaries of Union programmes including mobility
measures, but more generally for students, researchers and remunerated trainees,
as the provisions of the Directives on intra EU-mobility are not sufficiently
advanced.

Weaknesses in
procedural guarantees were also identified. One of them is the lack of any
provision on time limits within which applications for admission would need to
be assessed and decided on by Member States.

In terms of
the labour market, there is a lack of opportunities for graduates from third
countries to identify work opportunities after they graduate, and for
researchers to do so after finishing their research project. Researchers’
family members are not guaranteed access to the labour market. Students’ access
is restricted during their studies, hampering their ability to adequately fund
themselves and to make an economic contribution.

Finally, the personal
scope of the current framework is limited. It is optional for school pupils,
volunteers and unremunerated trainees, leading to wide variations in the Member
States’ coverage of the different groups. Remunerated trainees and au pairs are
not covered by any EU legislative framework, despite facing similar problems and
taking part in similar exchanges. These groups need to benefit from more
protection, especially au pairs, in view of their particular vulnerability which
is related to the family context in which they work.

In 2010,
around 220 000 third-country nationals came to the EU for education and
study purposes and around 7 000 for research purposes. There is no
comprehensive quantitative data on the number of incoming third-country
nationals who encounter the problems outlined above or the number of
third-country nationals who choose a different destination to the EU due to
such problems. It is clear however that the considerable numbers of those who
come under the current provisions are affected by their shortcomings, as long
as there are no national provisions that remedy them. The information available
on the nature of the problems identified, coupled with the substantial number
of permits issued annually under the current Directives, suggest that the situation
needs to be addressed. Taken together, the weaknesses identified may undermine
the EU’s capacity to attract highly qualified students, researchers and other
groups of third-country nationals at a time when other parts of the world are
becoming increasingly attractive for these groups.

2.
WHAT
IS THE EU’S ROLE?

Article 79 TFEU
explicitly gives the Union the task of developing a common immigration policy,
whilst leaving the Member States responsible for determining the number of immigrants
they admit for the purposes of work or self-employment.

An efficient immigration
system that attracts talented immigrants needs a common set of admission
conditions and requirements. Intra-EU mobility can only be achieved by establishing
a common system for all Member States.

EU legislation
may cover conditions of entry and residence, long-term visas and residence
permits, the rights of legally residing third‑country nationals and
conditions governing their intra-EU mobility and residence. Article 79 (2) TFEU
provides that adoption of such provisions falls under the ordinary legislative
procedure and is decided by the Council and the Parliament.

The added
value of the current Directives has been proven over the years and the new
instrument would further improve the situation. A transparent legal framework, including
safeguards to ensure a genuine transfer of skills, would facilitate
international exchanges between the Member States and sending countries.

EU legislation
to clarify rights and conditions of residence would also contribute to a better
protection of fundamental rights.

3.
OBJECTIVES

The main
general policy objective is to improve the legal framework applied to
third-country nationals who want to come and temporarily stay in the EU for
more than three months for research and study purposes and to acquire
experience and/or participate in various activities to increase their skills
and competences, including by being a school pupil, volunteer, unremunerated or
remunerated trainee or au pair.

Specific
objectives were identified in light of the problems outlined above:

·
to
improve the conditions of admission by better linking obtaining the relevant
authorisations and improving decision-making processes for these authorisations;

·
making
provisions clearer and binding for the other groups they apply to;

·
to
strengthen the link between provisions on Union programmes including mobility
measures such as Erasmus Mundus and Marie Curie Fellowships;

·
to
improve procedural guarantees, such as time limits for decisions on
applications;

·
to
improve access to seek employment and the labour market, both for students
during their studies as well as to give researchers and students the
possibility to remain on the territory under certain conditions after finishing
their studies or research to identify job opportunities;

·
to
facilitate intra-EU mobility;

·
to
set out coherent provisions ensuring the protection of au pairs and remunerated
trainees.

4.
POLICY
OPTIONS

Four policy
options were considered.

Option 1
(baseline). No change in the current situation

This policy
option would leave a number of problems unsolved. Independently of each
other, the Member States would continue to implement different measures with regard
to admission conditions, in particular visas. There would still be a lack of
clarity and transparency on these aspects, and potential applicants and organisations
would have to continue taking all the current different frameworks into
consideration. Conditions for exercising intra-EU mobility (in particular for
students) would remain restrictive, while remunerated trainees would not be
covered at all by EU legislation. They would therefore continue to face
obstacles and have to rely on national legislation, which differs from one Member State to another.
With
a view to the proposal for a Directive on intra-corporate transferees
(currently being negotiated with the Council and Parliament) which also
includes intra-EU mobility provisions for trainees, the continued non-existence
of such provisions for trainees coming to the EU outside of an intra-corporate
transfer would lead to inconsistencies in the EU legal framework for this
group.
The lack of coherence between Union programmes including mobility measures and immigration
rules would also continue, as would the risk of some groups not being fully covered
by the provisions on equal treatment rights in the Single Permit
Directive.

While some
Member States have made further changes to their legislative frameworks on the
implementation of the provisions on students and researchers, others have not. This
means that the situation has already moved towards a more fragmented approach
between Member States. There are no signs that this would change in the future.
The openness of the EU towards third countries would therefore not materialise,
as advocated in important policy frameworks such as the current Directives, the
European Research Area and the European Higher Education Area.

Option 2. Communicating
more (in particular in the case of researchers) and better enforcing the
current provisions

This option
includes better provision of and access to information to make the current provisions
clearer so that they are better applied. More could also be done to raise
awareness of the best practices of Member States in admitting and protecting
groups currently not covered by Directive 2004/114/EC, i.e. au pairs and
remunerated trainees. A more systematic exercise of ensuring that Member States
understand and respect their obligations under the Directives would be carried
out.

Option
3.
Improving
admission conditions, rights and procedural guarantees

This option
mainly includes improvements for students, school pupils, volunteers and
unremunerated trainees, as it puts admission conditions for these groups (facilitation
to obtain a visa) comparable to those that apply to researchers. It would make provisions
for the currently optional groups of school pupils, volunteers and
unremunerated trainees mandatory. Member States would be obliged to grant
every facility to obtain the necessary visas to a third-country national (students
and other groups) who has submitted an application and meets the admission
conditions. Changes
would also be made to procedural guarantees, mainly by introducing time limits that
oblige Member States’ authorities to decide on an application within 60 days.
This is considered proportionate due to the temporary nature of these stays. In
exceptional circumstances, the time limit could be extended by 30 days. This option would
also extend students’ right to work to cover a minimum of 15 hours per week from
the first year of residence. To ensure coherence with EU instruments on legal
migration such as the Single Permit Directive and recent case law on adequate fees, this option would
also include a provision recalling that if Member States charge fees for processing
applications, such fees should be proportionate.

Option 4. Further improving admission
conditions, rights relating to intra-EU mobility and procedural guarantees; offering
students and researchers access to job-seeking after finishing their studies or
research project; extending scope to au pairs and remunerated trainees

This option aims to be more ambitious in
improving the conditions and rights of the groups covered. It would extend the
scope of the legislative framework to au pairs and remunerated trainees and
introduce specific admission conditions to ensure better protection for those third-country
nationals. Including au pairs under the scope of the
Directive is considered proportionate in view of their vulnerability, which is
relatively high compared to that of other groups of third-country nationals. This
is mainly because they work in a family context which under normal
circumstances is not subject to inspections. Including
remunerated trainees is considered reasonable as the issues related to trainees
are very similar whether or not they are remunerated, or whether or not they
come to the EU as part of an intra-corporate transfer, as stipulated in the proposal for a Directive on intra-corporate transferees.

Member States would have the possibility to
issue long-stay visas or residence permits. If both types
of authorisations are issued, they should require only the fulfilment of
admission conditions mentioned in the Directive (so that the conditions remain
the same irrespective of the type of authorisation). If third-country nationals
stay for more than one year, Member States issuing long-stay visas would have
to issue residence permits after the first year. Intra-EU mobility, which requires
common provisions at EU level due to its cross-border nature, would be made
easier and simplified for researchers and their family members, students, and
introduced for the first time for remunerated trainees. Specific, more favourable
provisions would apply to the beneficiaries of Union
programmes including mobility measures such as Erasmus Mundus or Marie Curie. Following the example of the
contact points established under the Blue Card Directive and the proposal for a
Directive on intra-corporate transferees, Member States would need to set up
contact points for receiving and transmitting information needed to implement
intra-EU mobility.

Regarding equal treatment rights, this
option would allow more favourable treatment of third-country national
researchers regarding branches of social security including family benefits
beyond the rights given under the provisions of the Single Permit. It would
also ensure the access to goods and services made available to the public to
those groups which under the Single Permit could be excluded from this access.

As is already the case in some Member
States, students would have the right to work for a minimum of 20 hours per
week from the first year of residence to enable them to
better fund themselves and contribute to the Member State’s economy. Member
States would be allowed to continue taking the national labour market into
account. After finishing their studies or research,
students and researchers would be allowed to stay on the territory for 12
months to find a job. A
number of Member States already have such provisions in place. Given the time
it takes for a job-seeking process to be successfully completed, 12 months is
considered a proportionate time limit. With regard to
procedural guarantees, Member States’ authorities would have to decide on
applications within 60 days for all groups and within 30 days for Erasmus
Mundus and Marie Curie fellows. Like option 3, this option would also include a
provision recalling that if Member States charge fees for processing applications,
such fees should be proportionate.

5.
ANALYSIS
OF IMPACTS

The impact of
policy options 2, 3 and 4 was assessed against the baseline scenario in terms
of their relevance and effectiveness in achieving key objectives, their feasibility
(difficulty of or risks for transposition including proportionality,
administrative burden/simplification and financial impact), their economic,
social and external impacts and their impact on fundamental rights. While the
analysis of the likely impacts of the policy options includes some quantitative
elements, it is mainly based on a multi-criteria qualitative assessment.

While option
2 would have some positive impacts, these would mainly relate to a better
awareness of current provisions such as admission conditions, and the benefits
that could be reaped from this as it might attract more students and
researchers to the EU. As the current legal instruments would not be changed, their
weaknesses would persist. As access to the labour
market for these third-country nationals would not be improved, this option
would put the EU in an increasingly disadvantaged position for attracting
talent for study and research purposes. The impact on the three other
(optional) groups covered by Directive 2004/114/EC would be very limited. The economic
impact and administrative burden of this option would be limited and confined
to efforts needed to implement improved communication activities insofar as
Member States deem this necessary.

Option 3
would facilitate the access of students, school pupils, volunteers and
unremunerated trainees to the EU. It would thus have some positive impacts,
mainly of a social nature. It would allow students to apply for mobility from
within the territory of a Member State, thereby increasing intra-EU mobility and
strengthening the cultural and linguistic diversity of the EU. Provisions on
equal treatment would strengthen students’ rights and
align them further with those of EU citizens. This option would increase the EU’s pool of
students and researchers who are third-country nationals. Some of them may subsequently
contribute to the EU’s economic growth and development if a Member State issues the necessary authorisation to work. Improved access to the
labour market during studies would allow students to more adequately fund
themselves and contribute to the economy during their studies. The introduction
of binding time limits for processing applications would increase transparency
and enable potential applicants to plan ahead. The transposition
efforts and costs would vary between Member States, depending on the extent to
which they already have provisions in the areas concerned, and whether or not
they have transposed provisions for groups that are optional under Directive 2004/114/EC. The
additional procedural guarantees would entail more work, for example in
situations where the Member State authority must provide reasons for rejecting an
application in its written decision.

Option 4
would have the most significant positive economic impacts. This is because it
would allow students and researchers to stay on a Member State’s territory for
12 months after finishing their studies or research to identify job
opportunities. In Member States where they currently cannot do so, this would open
up a new pool of talent that could contribute to the EU’s growth and competitiveness
if the Member State decides to issue the necessary work permit. This would
create a demand-driven situation, allowing third-country nationals to work if
their skills are needed on the national labour market. Some Member States would
have to introduce this possibility, while others would have to adjust it so
that it (at least) corresponds to 12 months. Substantially improved admission
conditions should facilitate the access of researchers and students whose skills,
knowledge and competencies already during their initial stay will have a
positive effect on the stimulation of research and development and innovative
performance. Improved provisions on intra-EU mobility will allow any such
advantage to spread more widely across the EU. Including au pairs and
remunerated trainees under this option would strengthen the protection of these
vulnerable groups of immigrants who are often subject to abuse.

A stronger
link between the requirements to obtain permits and visas would imply
adjustments at Member State level but there should not be any
major difficulties with transposition. Implementing these provisions would cost
more in the short term, in particular as far as changes in admission conditions
are concerned. However, in the medium to long term Member States could expect
to make savings through a more streamlined link between different kinds of
authorisations. Introducing and applying procedural guarantees will entail additional
costs.

6.
COMPARISON
OF OPTIONS

Option 2
would address a significant weakness in the current framework (provision of
information). Overall however, it has limited positive impacts, as it would not
change the substance of the current legal instruments. Their other weaknesses
would therefore persist.

Option 3
would be a step forward in improving admission conditions with regard to
issuing visas and/or work permits. It would have positive impacts mainly for
students and to some extent school pupils, volunteers and unremunerated
trainees. Very limited benefits would be derived from time limits for
researchers and no benefits for the groups currently not covered by either of the
Directives. Option 4 would have significantly greater positive impacts on
access to the EU, not only for the groups covered by the Directives but also
for au pairs and remunerated trainees. The changes introduced by option 4 would
make the requirements to be fulfilled at the different stages of the admission
procedure and the way they are linked to each other much clearer.

Regarding equal treatment, compared
to the other options, only option 4 would allow
more favourable treatment of third-country national researchers regarding
branches of social security including family benefits beyond the rights given
under the provisions of the Single Permit. It would also ensure the access to
goods and services made available to the public to those groups which under the
Single Permit could be excluded from this access.

Regarding intra-EU
mobility, only the conditions for students would be improved under option 3. Option 4 would
also improve the conditions for researchers and their family members as well as
for remunerated trainees and make specific provisions for the beneficiaries of Union
programmes including mobility measures.

With regard
to procedural guarantees, introducing binding time limits for processing
an application under option 3 would increase transparency and enable potential
applicants to plan ahead. The stricter time limits proposed under option 4 would
further increase the advantages potential applicants gain.

With regard to
improving access to the labour market, option 3 would significantly
improve the current situation of students by increasing
the minimum number of working hours and removing the possibility of limiting
access to the labour market in the first year of residence. Option 4
would further increase the minimum number of working hours for students. It would
also make the legal framework significantly more attractive for students and
researchers by allowing them to stay on the territory of a Member State to find a job and by granting researchers’ family members access to the labour
market.

Only option 4
achieves the objective of providing coherent provisions to ensure that au
pairs and remunerated trainees are protected. It envisages a coherent set of
admission conditions and rights ensuring that the objective of training and au
paring in the EU are not compromised.

Preferred
Option

The analysis
and comparison of the options suggest there are problems that cannot be solved
by better communication alone and that the Directives therefore need to be
updated.

Although it
has the lowest implementation costs, option 2 only has limited potential to achieve
the objectives. The real issues at stake remain largely unresolved. Option 2 is
therefore regarded as the least cost-efficient option. Option 3 is more
effective and efficient than option 2.

However, option
4 is the most effective and efficient overall. While it costs more to implement
than the other options, the implementation costs are considered proportionate
to the objectives and necessary to allow for the most substantial benefits to
materialize.

Since the
issues identified are similar for both Directives, and in order to provide for
more coherence and clarity of the EU rules, the most effective way to implement
the preferred option would be to combine the two Directives in a single
legislative instrument. This would be done by recasting both Directives, merging
them in a single legislative act and proposing substantive changes.

7.
MONITORING
AND EVALUATION

Currently, the
main indicator is the number of permits granted to third-country nationals who
come to the EU for research or educational and study purposes. Under the new
instrument, an effort could be made to better distinguish between the different
groups, including remunerated trainees and au pairs, regardless of whether they
come to the EU under a permit or long-stay visa. Recording the number of
authorisations granted would enable monitoring of the situation over time. To
better assess their intra-EU mobility, the number of beneficiaries of EU-funded
mobility programmes could be recorded separately. Statistics could also be
developed to monitor the number of students and researchers who look for a job,
compared to the overall number who are third-country nationals and who obtain
the necessary work permit. The time Member States take to decide on
applications would be recorded and compared with the time limits currently in
force.

As with any
EU legal instrument, the Commission is responsible for ensuring that Member
States apply the Directive(s) correctly and on time. In the area of migration,
the Commission communicates with the Member States through the Contact
Committee on Migration. This is a forum for discussion to help anticipate problems
and solve them more effectively, in particular during the implementation
period.

The
Commission will continue to verify that transposition measures comply with the
Directive and that Member States transpose it on time. It will launch
infringement procedures if necessary. The proposal will include an obligation
for the Commission to report to the European Parliament and the Council evaluating
the application of the new Directive by the Member States five years after the
deadline for transposition. The report could also cover the effects of the
Directive and it may contain policy recommendations.

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