Steve Peers

The EU member states, similar to other economically advanced nations, require a growing number of highly skilled workers. Current EU regulations have not significantly increased the influx of students and researchers from other countries, prompting the Commission to propose revisions in 2013. Both the European Parliament (EP) and the Council have agreed on their respective stances for the proposed law and are preparing to negotiate a final version. Now is an opportune time to consider what this new law should include to effectively attract more researchers and students from non-EU countries.

Background

This issue is currently addressed by the Researchers’ Directive (adopted in 2005) and the Students’ Directive (adopted in 2004). The Students’ Directive also covers admission for exchange students, unpaid trainees, and volunteers, although member states can choose whether to apply it to the latter three. Commission reports in 2011 indicated that these directives haven’t been very effective, with only 7,000 researchers admitted in 2010. This led to the 2013 proposal for reform. The Court of Justice of the European Union (CJEU) has issued two rulings on the Students’ Directive, stating that member states cannot use labor market preference tests for students and must admit students who meet the Directive’s criteria. This logic applies to the Researchers’ Directive as well. Notably, the UK and Denmark opted out of both directives, while Ireland opted into the Researchers’ Directive.

The proposed new law

The Commission’s proposal aims to combine and significantly revise both directives. It proposes stronger regulations for equal treatment and movement (‘mobility’) within the EU for research and study purposes, extending these to paid trainees, to attract more researchers and students. They could stay for 12 months after their studies or research to seek work or self-employment, with member states able to check on their job search efforts after three months and require proof of genuine prospects after six. Students could work 20 hours per week (up from the current 10), and the option to prohibit work during the first year of study would be removed.

Additionally, the proposal would enhance family reunion rights for researchers, replacing the limited provisions in the current Researchers’ Directive with a more comprehensive right modeled after the EU Directive on family reunification for third-country nationals. This includes waiving the waiting period and the requirement to demonstrate a likelihood of permanent residency. Integration requirements could only be applied after arrival, and application processing times would be shortened. Family members would have a longer permitted stay and immediate access to the labor market.

A 60-day deadline for processing applications would be introduced, shortened to 30 days for those in EU mobility programs, addressing the lack of deadlines in the current laws.

Lastly, the proposal mandates that member states apply rules concerning students, unpaid trainees, and volunteers. It also introduces regulations for au pairs and paid trainees while restricting member states’ ability to offer more favorable conditions. This power would be limited to a few migrant rights provisions, with admission rules being fully standardized.

The European Parliament and Council positions

The EP and Council have differing views on certain aspects. While the EP seeks to require member states to consider in-country applications for researchers, the Council, like the Commission, prefers to retain the current optional system. The EP aims to strengthen equal treatment rules, while the Council leans toward weakening them. The EP proposes extending the post-study or research job-search period from 12 to 18 months and delaying the point at which member states can check on job searches or employment likelihood. Conversely, the Council wants to restrict the stay to six months, limit eligibility to those with at least a Master’s degree, allow checks on employment likelihood after three months, and potentially restrict job searches to areas of expertise. The EP supports expanded student employment rights, while the Council prefers the current 10-hour limit and suggests reintroducing a labor market preference test, contradicting a previous CJEU ruling.

Concerning family reunification, the EP wants to include students’ families, while the Council wants to maintain the focus on researchers and not require immediate work access for their families. Similarly, the EP seeks to expand the new mobility rules to unpaid trainees and volunteers, while the Council wants to maintain the current focus on researchers and students, adding complex details to the proposal. The EP supports a shorter 30-day application processing time, while the Council proposes a 90-day deadline.

Finally, the EP supports the Commission’s proposal to expand the Directive to include additional migrant categories and make all rules mandatory, while the Council opposes both points.

There are areas where the EP and Council’s positions align. Both support granting member states more flexibility in offering favorable conditions and explicitly allowing them to set admission rules for other student and researcher categories. They also agree on maintaining the current rules regarding decision-making delegation to research institutions and keeping many entry, withdrawal, and renewal refusal rules optional rather than mandatory.

Comments

When evaluating the positions of the EP and the Council, it’s important to consider the Commission’s impact assessment report on the proposed directive. This report presents arguments for the Commission’s proposed amendments and suggests that a post-study or research job-search period attracts students and researchers, although the Council’s less generous version might be less appealing. Evidence also indicates that migrants are drawn to enhanced employment rights for students and researchers’ families, provisions supported by the EP and Commission but not the Council.

The complexities and variations in national and inter-member state mobility rules deter potential migrants. The Commission and EP’s stance, which favors simplifying these rules and minimizing divergence, would address this concern. The Council’s approach, on the other hand, allows for more national variations and complicates mobility rules, which might not be beneficial.

Looking ahead, negotiations should prioritize attracting more students and researchers, as this would benefit the EU economy more than other migrant categories. Given the resistance from member states to implement binding rules for other categories, the EP might have to prioritize.

One strategy is for the EP to reconsider its insistence on binding rules for all aspects of admission and stay for students, trainees, au pairs, and volunteers. A compromise could involve harmonizing areas with stronger arguments for common rules, such as EU programs aimed at facilitating admission and preventing the exploitation of au pairs and trainees.

The future directive could implement binding rules for migrants entering through EU programs while giving member states more flexibility otherwise. It could also enforce binding rules for equal treatment and transparency for those vulnerable to exploitation, allowing member states to apply other directive rules as needed. Long-term harmonization could be achieved through a standstill clause, requiring member states already applying EU law to these groups to continue while granting others a renewable exemption. If no agreement can be reached on binding rules for these groups, it would be best to omit them entirely to avoid unnecessary legislation.

In exchange for flexibility on other migrant categories, the EP should push for improvements in the Council’s position on students and researchers. This includes advocating for measures that would make the EU more appealing, such as better job-search rules, improved employment prospects for students and researchers’ families, simplified mobility rules, and faster decision-making. Additionally, requiring all member states to allow in-country applications for researchers would be beneficial.

To attract researchers who don’t fall under the planned rules (those without a formal agreement with a research institution), the institutions could agree to address this in the upcoming revisions to the EU Blue Card Directive on highly skilled worker admission. This review could also address the situation of former students and researchers once the job-search period ends.

Considering the Blue Card Directive, perhaps introducing a similarly recognized residence permit for researchers and students, like an “EU Student Card” and an “EU Researcher Card,” could make the EU more attractive. While this could highlight the EU as a desirable destination, marketing should not overshadow the substance of the rules. The EU has an opportunity to refine its immigration system to attract desired individuals. It would be unwise to squander this opportunity.

Barnard & Peers: chapter 26
Photo credit: Research-in-Germany.org