The new Directive on immigration of students and researchers: a small step or a big leap forward?

Steve Peers

For a number of years, the EU has aimed to attract highly-skilled non-EU migrants to its territory. However, the existing legislation on this issue – the researchers’ Directive, adopted in 2005, and the students’ Directive, adopted in 2004 – have only had a modest impact on attracting more students and researchers to the EU, according to the Commission’s reports (see here and here) on the two Directives, issued in 2011.

Consequently, the Commission proposed an overhaul of this legislation in 2013. The European Parliament (EP) and the Council recently agreed on the text of this proposal (for the text of the provisional version of the future Directive, see here; the final version will be ‘tidied up’ a little legally). As you would expect, the EP and the Council compromised between their respective positions (for those positions, see here and here), which I discussed in an earlier blog post. [Update: the Directive was officially adopted in May 2016. Member States must apply it by May 2018.]

I’ll examine first the background and content of the new Directive, then look at how effective it is likely to be in its objective on increasing the numbers of researchers and students coming from third States.

Background

The current students’ Directive also applies to the admission of school pupils on exchange programmes, unpaid trainees and volunteers, although Member States have an option to apply it to the latter three groups of migrants. The CJEU has ruled twice on the interpretation of this Directive. In  Sommer it ruled that Member States could not apply a labour-market preference test for students; in Ben Alaya case (discussed here), it ruled that Member States must admit students who comply with the rules on admission in the Directive. The same logically applies to the current researchers’ Directive. The UK and Denmark opted out of both Directives, while Ireland opted in to the researchers' Directive. All three countries have opted out of the new law.

The new law

The new Directive merges the students’ and researchers’ Directives, making major changes to them both. First of all, the Commission proposed that Member States would be obliged to apply the currently optional rules relating to school pupils, unpaid trainees and volunteers, as well as rules on two new groups of migrants: au pairs and paid trainees. The EP agreed with this idea, while the Council rejected it entirely. Ultimately, the two institutions compromised: the new Directive will have binding rules on (paid and unpaid) trainees and some volunteers (those participating in the EU’s European Voluntary Service), although stricter conditions will apply to the admission of trainees (more on that below). However, the rules on other volunteers and school pupils will remain optional, along with the new rules on au pairs.

Next, the Commission proposed to limit Member States’ current power to apply more favourable rules for students and researchers, confining that power to only a few provisions relating to the rights of migrants, while fully harmonising the rules on admission. The final Directive accepts the basic principle that the power to set more favourable standards should be more limited that at present, but imposes fewer such constraints than the Commission wanted. Member States will be allowed to apply more favourable rules for the persons concerned as regards the time limits on their residence permits. Many of the conditions relating to admission and withdrawal or non-renewal of the right to stay will be optional, not mandatory (as the Commission had proposed), and the Council insisted on many additional options being added. A clause in the preamble sets out the Council’s wish to provide expressly that Member States can have rules on admission of other categories of students or researchers.

Against the Commission’s wishes, the final Directive provides that the current rules on delegating decision-making to research institutions or universities will remain. Furthermore, it adds that Member States can optionally delegate such powers as regards volunteers or trainees as well.

Trainees are defined (more restrictively than the current law) as those who have recently completed a degree (within the last two years), or who are currently undertaking one. Their time on the territory is limited to six months, although this can be longer if the traineeship is longer, and the authorisation can be renewed once. But Member States retain the power to set more favourable standards as regards these time limits.  

One striking feature of the agreed Directive is a new right for students and researchers to stay after their research or study to look for work or self-employment. The EU institutions agreed on the principle of this right, but disagreed on the details. According to the Commission, the right should apply for a period of 12 months, although after 3 months Member States could check on the genuineness of this search, and after 6 months they could ask the migrant to prove that they have real prospects. The EP wanted to extend the period to 18 months, and to make Member States wait longer to check on the genuineness of the job search or likelihood of employment. On the other hand, the Council wanted several restrictions: to reduce the stay to 6 months; to allow Member States to limit students’ possibility to stay to those who have at least a Master’s degree; to check on the likelihood of employment after 3 months; and to give Member States an option to limit the job search to the areas of the migrant’s expertise. The final deal splits the difference on the period of extra stay (it will be 9 months), and accepts the various optional limits on the right which the Council wanted.

As for students’ right to work, the current Directive allows them to work for at least for 10 hours a week. The Commission proposed to let them work for 20 hours a week, and to drop the option to ban students from working during their first year of studies. The EP agreed with this, but the Council wanted to revert to the current 10-hour a week limit, and introduce a possible labour-market preference test (overturning Sommer). Again, the final deal splits the difference: 15 hours’ of work allowed per week, with no labour market preference test.

Another issue was equal treatment of those who work. Currently, the EU’s single permit Directive provides for equal treatment of most third-country nationals who are allowed to work, even if (like students) they were not admitted for employment. However, that Directive excludes au pairs from its scope, and only applies where the relationship is defined as ‘employment’ under national law; this will not always be the case for researchers. The new Directive will extend the equal treatment rules to students and researchers, even if they are not considered employees, and to au pairs whenever they are considered employees. Even non-employees will have equal treatment for goods and services (besides housing and public employment offices). But the new Directive will not waive any of the various exceptions to equal treatment that the single permit Directive currently provides for, besides a few minor exceptions for researchers.

Also, the new Directive will replace the weak rules on family reunion in the current researchers’ Directive with a fully-fledged right to family reunion. The EU’s family reunion Directive will apply to Directive will apply to researchers, and many of the restrictions in that Directive will be waived: the minimum waiting period; the need to show a reasonable prospect of permanent residence; the need to show integration requirements for family members before entry (those rules can still be applied after entry; on the CJEU’s interpretation of those rules, see here). There will also be a shorter deadline to process applications, and family members will have a longer period of authorised stay. The EP and Council compromised on the Commission’s proposal to waive the waiting period before family members could access the labour market: the Council wanted to delete this proposed rule entirely, but it agreed to it with a derogation for ‘exceptional circumstances such as particularly high levels of unemployment’. However, the EP got nowhere with its suggestion to extend these more favourable rules to the family members of students as well.

The Commission aimed to simplify the current rules on the movement (‘mobility’) of researchers and students between Member States for the purpose of their studies and research. It also proposed to extend those rules to paid trainees, while the EP wanted to extend those rules to cover unpaid trainees and volunteers as well. However, the Council prevailed on this issue, restricting the scope of these rules to researchers and students (as at present), and adding very complicated details to the proposal on this issue.

Finally, the Commission proposed to introduce a 60-day deadline to decide on applications for admission, shortened to 30 days for those benefiting from EU mobility programmes. (The current laws have no deadlines to decide on applications at all). The EP supported an even shorter period to decide on applications (30 days), while the Council wanted to raise the time limit to 90 days. Yet again, these institutions split the difference, with a 90-day general rule and a 60-day rule where institutions have been delegated the powers to decide on applicants.

Comments

The agreed Directive should be appraised in light of the Commission’s impact assessment report for the proposed Directive, which made detailed arguments for the amendments which the Commission proposed. This report provided evidence that students or researchers are attracted to a job-search period after the end of research or studies, as well as by further employment rights for students and for researchers’ family members. Certainly the new Directive addresses all of these issues to some extent.

Conversely, would-be migrants are deterred by the great variety of national rules and the rules on mobility between Member States.  On this point, the new Directive will only reduce the variety of national rules modestly, and will install mobility rules more complex than those applying at present.

Presumably, it is also a deterrent for would-be students and researchers who are already legally present to leave the country to make their applications. To address this, the EP wanted to oblige Member States to consider in-country applications for researchers, but ultimately it could not convince the Council (or the Commission) to change the existing rules, which give Member States only an option to allow this.

As for the additional scope of the Directive, it is striking that the new binding rules on admission only apply to trainees who are undertaking or who have completed higher education, and to volunteers in the EU’s own programme. The latter change in the law is necessary in order to ensure the effectiveness of that programme, but the former change in the law is another example of the EU focussing its migration policy upon highly qualified employees. (Remember that according to the preamble to the new Directive, the admission of trainees who have not entered higher education is left entirely to national discretion). It’s unfortunate that at least the rules on equal treatment aren’t binding for all volunteers, school pupils and au pairs, to ensure that these migrants are not exploited and that domestic labour standards are not undercut.

Many of the changes in the Directive intending to attract qualified migrants would make even more sense if they were part of a ‘joined up’ policy – for instance, allowing trainees to make an in-country application for studies or research, or waiving some of the conditions in the EU’s ‘Blue Card’ Directive for highly-skilled migrants (reducing the income threshold, for instance) for graduate trainees, researchers, and students looking for work under this new Directive. Fortunately, there will be a chance to address this issue in the near future, as the Commission will soon be proposing an amendment to the Blue Card Directive (on the reform of that Directive, see here).

Overall, then, the new Directive has gone some distance towards accomplishing its intended objectives, but its effect could be further augmented in the near future by a broader reform of EU law on highly-skilled immigration in general.

Barnard & Peers: chapter 26

Photo credit: TheGuardian.com

Back to school: the CJEU confirms that third-country national students have a right of entry

Steve Peers

Around the EU, with emotions ranging from excitement to dread, university and college students are now (or shortly) starting or returning to their courses. Most of them will struggle with studies, finance, hygiene, romance and alcohol – though perhaps not in that particular order. In addition, third-country nationals resident outside the EU have the further burden of satisfying immigration conditions.

Those conditions are harmonised by the EU’s students’ Directive, as adopted back in 2004.  But how much did this Directive actually harmonise these rules?  Do Member States still have the right to add further conditions for entry? In short, do third-country national students have a right of admission to the territory of the EU, if they meet the relevant criteria for admission in the Directive? The CJEU has ruled today that they do, in its judgment in Ben Alaya.

Background

The students’ Directive (which the UK, Ireland and Denmark opted out of) also applies to the admission of school pupils on exchange programmes, volunteers and unpaid trainees. However, Member States have an option to apply the Directive’s rules as regards the latter three categories of persons. According to the Commission’s report on the application of the Directive, most Member States have not taken up this option.

In 2013, the Commission proposed a new version of the Directive, which would incorporate the parallel Directive on admission of researchers, add further categories of persons (paid trainees and au pairs), make all the provisions of the Directive mandatory, and change some of the rules on admission. The European Parliament adopted its opinion on this proposal in spring, but negotiations seem to be moving slowly in the Council.

The CJEU has ruled once before on the interpretation of this Directive. In the judgment in Sommer, it gave a liberal interpretation of the rules governing students’ access to employment, on the grounds that (according to the Directive’s preamble) it aimed to ‘promote Europe…as a world centre of excellent for studies and vocational training’.

According to the Directive, the mandatory conditions for admission of students are: possession of a valid travel document; parental authorisation, if they are a minor (this condition obviously won’t apply to most students); holding sickness insurance; not being a threat to public policy, public security or public health; paying the application fee; being accepted by a higher education establishment; having sufficient resources; knowing the language of the course of study; and paying fees to the university or college concerned. In fact, Member States can waive the requirements of paying application or admission fees, and of knowing the language.

Judgment

Mr. Ben Alaya, a Tunisian man resident in Tunisia, had several times applied to German universities to study math (in conjunction with a preparatory language course) and been accepted. However, the German authorities repeatedly turned him down. He challenged before the German courts the most recent refusal, which was based on the alleged inadequacy of his grades, his weak knowledge of German, and the lack of connection between his course of study and his chosen career. The relevant rule in German immigration law (as quoted in the judgment) sets out instead only a more nuanced rule on language requirements (waiving the requirement if the student will take a prior language course), with no reference to academic qualifications or the link with a planned career.

The national court referred to the CJEU the single question of whether there was a right to admission of students if the criteria in the Directive were satisfied.

According to the Court, first of all the mandatory nature of the admissions rules for students, as compared to the discretionary application of the rules on other categories of persons, justified the conclusion that the admissions rules were an exhaustive list. Secondly, this interpretation was consistent with the purpose of the Directive (promoting mobility to the EU, so that it would be a global centre of excellence for education) as set out in the preamble and referred to previously in Sommer. Thirdly, the Directive expressly allowed Member States to set more favourable standards, so it made no sense to interpret it to mean that they could also set less favourable standards.

The Court did note that Member States had some general discretion when applying the exhaustive EU rules: they could ask for the evidence needed to ‘assess the coherence’ of the application, ‘in order to fight against abuse and misuse’ of the admission procedure. Finally, the Court went on to reach a conclusion on the facts of the case, noting that Mr. Ben Alaya appeared to satisfy the conditions for admission, and that he therefore ‘ought’ to have been given a residence permit.

Comments

First of all, it is striking that the CJEU effectively allocated responsibility as between the educational institutions and the immigration authorities. While of course students should satisfy the relevant educational criteria for admission, the Directive implicitly leaves it to the educational institution to apply the relevant criteria. It is up to each Member State (or perhaps its constituent states, in federal countries like Germany) to decide if it wants to set minimum educational criteria for university entry by law, or allow the higher education sector to set those criteria (or to set higher criteria than the national minimum).

It certainly looks odd in this case that although the educational institution thought the applicant’s grades were sufficient, the immigration officials thought they knew better than the university how to apply its admissions criteria. Then again, the Court of Justice judges also thought they were competent to examine this issue.

It is also odd that the immigration officials rejected the applicant on language grounds when he was willing to attend the pre-course language studies referred to by national law. And the idea that immigration officials can judge whether there is enough of a link between study and future career is peculiar (and not provided for in national law or the Directive). More fundamentally, it’s an absurd criterion for admission to higher education courses: students often change their mind as to what career they wish to have, or obtain jobs in different areas from their field of study due to developments on the job market. 

The judgment also raises some general points. As regards education policy, it should be stressed that the Directive does not affect the ability of Member States to determine what fees to charge to third-country nationals coming from third countries, or to regulate whether they have access to study finance. This is obviously different from the internal market rules applying to EU citizen students who move between Member States, who have the right to equal treatment as regards tuition fees and admission criteria or quotas, and (if they are already residing in the Member State concerned, in most cases) equal treatment as regards study finance.

For nationals of Turkey, the judgment has a particular importance. They have the right to admission, then the right of access to employment (Sommer), which gives rise in turn to a right to stay on the territory as a Turkish worker (Payir).

As regards immigration policy more generally, last year the CJEU ruled that the EU rules on grant of a short-term visa are exhaustive (Koushkaki). Just last week, it ruled that the rules on admission at the external borders in the Schengen Borders Code are exhaustive (Air Baltic). Now it has confirmed that at least some of the rules on longer-term migration are exhaustive too. While this judgment as such only applies to the students’ Directive, it must surely give rise to a presumption that the other EU immigration law Directives regulating the grounds of admission create a right of entry to: the Blue Card Directive, the researchers’ Directive, the seasonal workers’ Directive and the intra-corporate transferees Directive. As for the other Directives on legal migration, the single permit Directive does not set out grounds for admission, the CJEU confirmed years ago that the family reunion Directive confers a right of entry, and the long-term residents Directive presumably confers a right to obtain a long-term residents’ permit and to move to another Member State if the conditions in the Directive are satisfied.

In light of this broader impact, like the earlier judgments of Koushkaki and Air Baltic, this is a welcome judgment by the Court, which strengthens the rule of law in immigration proceedings and makes clear that the EU rules on immigration law aim toward harmonisation of national rules.

Barnard & Peers: chapter 26