More research is needed: the EU’s attempt to attract more non-EU researchers and students

 

Steve Peers

The economies of the EU’s Member States, like other advanced developing countries, increasingly need highly-skilled workforces. But since the EU’s current laws have only had a modest impact on attracting more students and researchers to the EU, the Commission proposed an overhaul of the legislation concerned in 2013. The European Parliament (EP) and the Council have each now agreed  their position on the proposed new law (see here and here), and will soon start negotiations on a final text. This is a good time to examine what the new law should include, if the EU genuinely wants to increase the numbers of researchers and students coming from third States.

Background

The existing legislation on this issue is the researchers’ Directive, adopted in 2005, and the students’ Directive, adopted in 2004. The latter 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 Commission issued reports (see here and here) on the two Directives in 2011, concluding that they had not done much to accomplish their objective (there were only 7000 researchers admitted in 2010) and probably needed to be reformed – hence the 2013 proposal. The CJEU has ruled twice on the interpretation of the students’ Directive, first of all ruling in Sommer that Member States could not apply a labour-market preference test for students, and secondly ruling in the Ben Alaya case (discussed here) that Member States must admit students who comply with the rules on admission in the students’ 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.

The proposed new law

The Commission proposal would merge the students’ and researchers’ Directives, making major changes to them both. In order to attract more researchers and students to EU territory, there would be stronger rules on their equal treatment and their movement (‘mobility’) between Member States for the purpose of their studies and research; those rules would also be extended to paid trainees. They would be able to stay after their research or study for a period of 12 months to look for work or self-employment, 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. Students would be able to work for 20 hours a week (the current rules provide for 10 hours), and the option to ban students from working during their first year of studies would be dropped.

Also, the proposal would replace the weak rules on family reunion in the current researchers’ Directive with a fully-fledged right to family reunion, which would moreover waive some of the restrictions in the EU’s Directive on family reunion for third-country citizens. In particular, researchers could obtain family reunion without a minimum waiting period, and would not have to show that they have a reasonable prospect of permanent residence. Integration requirements for family members could only be applied after entry, and there would be a shorter deadline to process applications. Family members would have a longer period of authorised stay, and no wait before they could access the labour market.

The 2013 proposal would also 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).  

Finally, the proposal would require Member States to apply the rules relating to school pupils, unpaid trainees and volunteers, and would furthermore add rules on two new groups of migrants: au pairs and paid trainees. It would also 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 European Parliament and Council positions

On some key points, the EP and the Council are going in quite different directions. The EP wants to oblige Member States to consider in-country applications for researchers, while the Council (like the Commission) wants to retain the existing rules, which give Member States an option to allow this. In the EP’s view, the equal treatment rules should be strengthened, but the Council wants to weaken them. The EP wants to extend former students’ and researchers’ stay to look for work from 12 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 wants 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 EP agrees with the extension of students’ employment rights, while the Council wants to revert to the current 10-hour a week limit, and introduce a possible labour-market preference test (overturning Sommer).

As regards family reunion, the EP wants to extend the Commission’s proposal to family members of students as well, while the Council wants to limit the rules to researchers, without requiring Member States to give researchers’ family members immediate access to employment. Similarly, the EP believes that the new mobility rules should be extended to cover unpaid trainees and volunteers as well, while the Council wants to limit them to researchers and students (as at present), and to add very complicated details to the proposal on this issue. The EP supports an even shorter period to decide on applications (30 days), while the Council wants to raise the time limit to 90 days.

Finally, the EP agrees with the Commission proposal to extend the Directive to further categories of migrants and to make all of the rules binding, while the Council rejects both suggestions.

On a few points, the EP and Council are going in the same direction. Both institutions want Member States to have a greater possibility to apply more favourable rules for the persons concerned. The Council wants to go further still, and provide expressly that Member States can have rules on admission of other categories of students or researchers. Also, both the EP and the Council agree  that the current rules on delegating decision-making to research institutions or universities should remain, and that many of the rules on whether to refuse entry or withdraw or refuse to renew the right to stay should be optional, not mandatory (as the Commission proposes).

Comments

The EP’s and Council’s positions should be examined in light of the Commission’s impact assessment reportfor the proposed Directive, which makes detailed arguments for the amendments which the Commission proposed. This report provides evidence that a job-search period after the end of research or studies is a factor in attracting students or researchers, although presumably the Council’s less generous version of the rules on this issue would be less attractive in practice than the EP’s version. There is also evidence that migrants are attracted by further employment rights for students and for researchers’ family members: here the EP and Commission are seeking to amend the rules to this effect, but the Council is not.

Would-be migrants are also deterred by the great variety of national rules and the rules on mobility between Member States.  On this point, the Commission and EP position would certainly address this concern, by significantly reducing Member States’ options to have divergent national laws and providing for a relatively simple extension of a stronger version of the current mobility rules. The Council, for its part, would leave more national divergence in place, and amend the mobility rules in a fiendishly complicated way. Normally, I’m a big fan of the fiddly details of EU immigration law, but this is far too much of a good thing.

What should the priorities be for the forthcoming negotiations? The evidence clearly shows that the EU’s ailing economy would benefit most from more students and researchers, and less so as regards the other categories of migrants. And given the huge resistance of Member States to extending binding rules to the other categories of migrants, this would be difficult to agree, if it’s possible at all. So the EP should trade off one set of amendments against the other.

In particular, it should drop its insistence that binding rules should govern all aspects of the admission and stay of school pupils, trainees, au pairs and volunteers. Instead, it could seek a reasonable compromise, aiming to harmonise only certain aspects where there is a stronger case for common rules. The impact assessment report makes such a stronger case on two issues: where EU programmes aim to facilitate admission, and as regards the exploitation of au pairs and trainees (which also amounts to unfair competition as regards the domestic workforce).

So the future Directive could have binding rules as regards migrants who enter on the basis of an EU programme, but leave Member States discretion as regards these groups of migrants otherwise. And it could apply binding rules as regards equal treatment and transparency to those at risk of exploitation, leaving Member States the option to apply the other rules in the Directive to such groups. The objective of harmonisation could be preserved for the longer term, by means of a standstill clause, obliging Member States which currently apply EU law to these groups to keep doing so, while giving other Member States a renewable derogation. But if it is not possible to agree any binding rules on any aspect of the immigration of these groups of migrants, it would be better to drop them from the text of the Directive altogether, since the EU should avoid pointless legislation.

In return for not insisting on binding rules governing all aspects of the migration of other categories, the EP should demand improvements in the Council’s position on students and researchers, focussing on the changes that are most likely to attract them to the EU: better job-search rules, more employment prospects for students and researchers’ family members, less complex rules on mobility, and speedier decision-making. Requiring all Member States to permit in-country applications for researchers would surely help too. And since the EU also needs to attract researchers who fall outside the scope of the planned rules (because they don’t have a formal agreement with a research institution), the institutions could agree a political commitment to address this issue as part of the forthcoming revision of the EU’s Blue Card Directive, which concerns the admission of highly-skilled workers (on the reform of that Directive, see here). That review could also address what happens at the end of the job-search process for former students and researchers.

Speaking of the Blue Card Directive, it may also be useful to consider whether researchers and students might be more attracted to the EU if there were a similarly emblematic form of residence permit for them: an ‘EU Student Card’ and an ‘EU Researcher Card’, for instance. (I wouldn’t suggest using other colours for this purpose, since the existence of an ‘EU Red Card’ and an ‘EU Yellow Card’ would confuse football fans no end). While this might focus greater attention on the EU as a possible destination for researchers, marketing should not, of course, come at the expense of the substance of the rules concerned.  The EU has an opportunity to develop its immigration regime in the near future to ensure that the people it wants to attract here actually decide to come. It would be foolish to miss this opportunity again.   

 

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

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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

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