Steve Peers
The EU has been working for many years to attract highly skilled individuals from non-EU countries. However, the European Commission’s reports indicate that the existing legislation, specifically the 2005 Researchers’ Directive and the 2004 Students’ Directive, have not significantly increased the number of students and researchers coming to the EU.
As a result, in 2013, the Commission recommended a complete overhaul of these laws. The European Parliament (EP) and the Council recently reached an agreement on the content of this proposal. The final version of the future Directive is a compromise between the positions of the EP and the Council. [Update: The Directive was formally adopted in May 2016, and Member States are required to implement it by May 2018.]
This analysis will first delve into the context and specifics of the new Directive, and then evaluate its potential effectiveness in attracting more researchers and students from non-EU nations.
Background
The current Students’ Directive also includes provisions for the admission of students participating in exchange programs, unpaid trainees, and volunteers. However, Member States can choose whether or not to apply the Directive to these last three categories. The Court of Justice of the European Union (CJEU) has issued two rulings on the interpretation of this Directive. In the Sommer case, it determined that Member States could not use labor market preference criteria for student admissions. In the Ben Alaya case, it ruled that Member States are obligated to admit students who meet the Directive’s admission requirements. Logically, the same principle applies to the current Researchers’ Directive. The UK and Denmark opted out of both Directives, while Ireland opted in to the Researchers’ Directive. These three countries have opted out of the new legislation as well.
The new law
The new Directive consolidates the Students’ and Researchers’ Directives, introducing substantial modifications to both. Initially, the Commission suggested that Member States be required to implement the currently optional rules governing school pupils, unpaid trainees, and volunteers. Additionally, it proposed incorporating rules for two new groups: au pairs and paid trainees. The EP agreed, while the Council outright rejected the proposal. Ultimately, the two institutions compromised: the new Directive mandates rules for paid and unpaid trainees, as well as some volunteers (those participating in the EU’s European Voluntary Service). Stricter admission requirements will apply to trainees. However, rules concerning other volunteers, school pupils, and the new au pair provisions will remain optional.
Furthermore, the Commission suggested limiting Member States’ existing authority to apply more lenient rules for students and researchers, restricting this power to a few migrant rights provisions and fully harmonizing admission criteria. The final Directive upholds the fundamental concept of limiting the ability to establish more favorable standards but imposes fewer restrictions than the Commission desired. Member States will have the discretion to implement more favorable rules regarding the duration of residence permits. Many of the criteria pertaining to admission, withdrawal, or non-renewal of residency rights will be optional rather than mandatory, and the Council successfully advocated for the inclusion of numerous additional options. A preamble clause highlights the Council’s intention to explicitly allow Member States to set admission regulations for other student and researcher categories.
Contrary to the Commission’s proposals, the final Directive retains the current rules allowing for the delegation of decision-making to research facilities or universities. It also adds the option for Member States to delegate similar authority concerning volunteers and trainees.
Trainees are defined more narrowly than under the existing law, encompassing recent graduates (within the past two years) or current students. Their permitted stay is capped at six months, extendable if the traineeship lasts longer, with one renewal option. However, Member States can still set more favorable time limits.
A noteworthy aspect of the agreed-upon Directive is the introduction of a new right allowing students and researchers to remain in the country after their research or studies to seek employment or self-employment opportunities. While the EU institutions concurred on this right, they disagreed on the specifics. The Commission proposed a 12-month period, with Member States permitted to verify the legitimacy of the job search after three months and request proof of genuine employment prospects after six months. The EP sought to extend this period to 18 months and delay the Member States’ ability to make these checks. Conversely, the Council aimed to impose limitations: a reduction to six months; restricting eligibility to students with at least a Master’s degree; verification of employment prospects after three months; and an option for Member States to limit job searches to the individual’s field of expertise. The final agreement settles on a nine-month extension and incorporates the optional limitations proposed by the Council.
Regarding students’ work rights, the current Directive permits them to work a minimum of 10 hours per week. The Commission proposed increasing this to 20 hours and eliminating the option for Member States to prohibit work during the first year of study. While the EP supported this, the Council wanted to maintain the 10-hour limit and reintroduce a potential labor market preference assessment, effectively overturning Sommer. The final agreement strikes a compromise, allowing 15 hours of work per week without a labor market preference evaluation.
Equal treatment for workers was another point of contention. The EU’s Single Permit Directive currently ensures equal treatment for the majority of non-EU citizens authorized to work, even if their admission was not employment-based (e.g., students). However, this Directive excludes au pairs and only applies when the relationship is classified as “employment” under national law, which may not always be the case for researchers. The new Directive will extend equal treatment provisions to students, researchers (even if not considered employees), and au pairs classified as employees. Even those not considered employees will be afforded equal treatment regarding goods and services, excluding housing and public employment services. However, the new Directive does not waive the various exceptions to equal treatment outlined in the Single Permit Directive, with a few minor exemptions for researchers.
Moreover, the new Directive will replace the limited family reunification provisions in the current Researchers’ Directive with a comprehensive right to family reunification. The EU’s Family Reunification Directive will apply to researchers covered by the new Directive, and many of its limitations will be waived, including the minimum waiting period; the requirement to demonstrate a reasonable prospect of permanent residence; and the need to show integration requirements for family members before entry. It is important to note that these integration requirements can still be applied after entry. Additionally, the new Directive introduces shorter application processing deadlines and extends the authorized stay duration for family members. The EP and the Council reached a compromise on the Commission’s proposal to waive the waiting period for family members’ access to the labor market. While the Council sought to remove this provision entirely, it ultimately agreed to its inclusion with a derogation for “exceptional circumstances such as particularly high levels of unemployment.” However, the EP was unsuccessful in its attempt to extend these more favorable rules to students’ family members.
The Commission aimed to streamline the existing rules governing the movement (“mobility”) of researchers and students between Member States for study and research purposes. It also proposed expanding these provisions to include paid trainees, while the EP sought to include unpaid trainees and volunteers as well. However, the Council’s position prevailed, limiting the scope to researchers and students, as in the current legislation. Furthermore, the Council introduced considerably more intricate details into the mobility provisions.
Finally, the Commission suggested implementing a 60-day deadline for processing admission applications, reduced to 30 days for those participating in EU mobility schemes. Notably, the existing legislation does not establish any deadlines for application decisions. The EP advocated for an even shorter timeframe (30 days), while the Council sought to extend it to 90 days. Once again, the final agreement represents a compromise: a general rule of 90 days and a 60-day rule when institutions have delegated decision-making authority.
Comments
When evaluating the agreed-upon Directive, it’s crucial to consider the Commission’s impact assessment report on the initial proposal, which provided a thorough rationale for the suggested amendments. This report presented evidence that the inclusion of a post-study or research job search period, along with enhanced employment rights for students and family members of researchers, are attractive factors for potential migrants. The new Directive addresses these points to a certain extent.
Conversely, the wide range of national rules and regulations governing mobility between Member States can discourage potential newcomers. The new Directive only slightly reduces this variation and introduces more intricate mobility rules than currently exist.
Requiring prospective students and researchers who are legally residing in a Member State to leave the country to submit applications is likely another deterrent. To address this, the EP advocated for mandatory in-country application processing for researchers. However, it was unable to persuade the Council or the Commission to alter the existing rules, which only offer Member States the option of allowing in-country applications.
Regarding the Directive’s expanded scope, it is worth noting that the new binding admission rules only apply to trainees pursuing or having completed higher education and volunteers participating in EU-sponsored programs. The latter change is essential for the program’s efficacy. However, the former highlights the EU’s focus on highly skilled individuals in its migration policies. It is important to remember that, according to the new Directive’s preamble, the admission of trainees who have not pursued higher education is entirely at the discretion of each Member State. It is regrettable that the equal treatment provisions are not universally binding for volunteers, school pupils, and au pairs. Binding provisions would offer these individuals better protection against exploitation and help prevent the undermining of domestic labor standards.
Many of the Directive’s changes aimed at attracting skilled individuals would be more impactful if they were part of a more cohesive policy. For instance, allowing trainees to apply for study or research permits while remaining in the country or relaxing certain requirements in the EU’s “Blue Card” Directive for highly skilled migrants (like lowering the income threshold) would benefit graduate trainees, researchers, and students seeking work under the new Directive. Fortunately, there will be an opportunity to address this in the near future when the Commission proposes amendments to the Blue Card Directive.
In conclusion, while the new Directive has made progress towards achieving its goals, its impact could be further enhanced through a more comprehensive reform of EU legislation governing highly skilled immigration in general.
Barnard & Peers: chapter 26
Photo credit: TheGuardian.com