Cutting bureaucracy: Simplifying applications of third-country nationals

On the 22 February the LIBE Committee of the European Parliament will hold an orientation vote on the ‘Directive of the European Parliament and of the Council on a single application procedure for a single permit for third-country nationals to reside and work in the territory of a Member State and on a common set of rights for third-country workers legally residing in a Member State.’

The purpose of this directive is to allow for a single application and a single permit for third-country nationals who wish to reside and work in an EU Member State. The aim of the directive is also to allow for the third-country nationals to have equal rights to the nationals of the Member State they will subsequently reside in if given a permit. However, this directive does not affect the competence of the Member States to decide on the admission of third-country nationals to their labour markets.

In this directive, the focus is on the third-country national, a change from the previous directive of 2007 which focused on third-country workers. The definition of a third-country national, for the purpose of this directive, is

“any person who is not a citizen of the Union within the meaning of Article 20(1) of the Treaty on the Functioning of the European Union”. The directive will be applicable to any such a person who has applied to work in a Member State or has been admitted for other reasons but has the right to work in the Member State.”

Saying that, there are a number of circumstances in which a Member State can deem the directive inapplicable to a third-country national. Such circumstances include the situation of family members of a third-country national being EU citizens or being able to enjoy rights equivalent to EU citizens. Third-country nationals would also be excluded from the directive if they were seasonal workers or wishing to work as an au pair, be self-employed or a seafarer. Finally those awaiting, or having been granted international protection would also not be able to benefit from this directive. The addition of the exclusion of the self-employed or seafarers is another new change from the 2007 directive.

Furthermore, Member States can now decide to exclude, from articles 4 to 10, those granted a stay of less than 6 months and students. In the previous directive this exclusion was limited to seasonal workers but it can now be any worker who is simply granted a six month permit. This leaves open the possibility of third-country nationals receiving continuous renewals of 6 month work permits but no real access to the directive and its single application.

Those that do have access however, can benefit from a simplified and potentially quick procedure that can be launched individually or by an employer. The result is one procedure and issuance of one permit that encompasses both the permission for residence and work. This does not however, get rid of the need for a visa which may still be required for the initial entry into the Member State.

The directive also lays down rules with regards to the treatment of applicants and accountability. Member States are to designate a competent authority for the evaluation and processing of applications. This authority also has the responsibility of adopting a decision within four months of the date on which the application was submitted. There is leeway on this four month deadline however; if examination of the application is proving particularly difficult then the deadline could be extended. Also, if the applicant fails to provide all of the required supporting documents, the authority is required to notify the applicant of the information needed along with corresponding deadlines. In this case the four month decision deadline can be suspended until all documents are received.

As stated previously, the directive also provides for the possibility of accountability. If an application is rejected, the applicant firstly should be notified in writing and their right to challenge the decision in the Member State concerned are to be communicated in the rejection letter along with any legal deadlines.

Conversely, Member States can simply consider an application inadmissible (and therefore not process it) on the grounds of the volume of admissions for third-country nationals coming for employment. In this case there is no requirement to inform the applicant of the status of their application. However, considering that a person may wait for four months for the possibility of an answer, it seems fair that notification should be provided, even in the instance that an application is not to be processed. Though such a measure is not stated, there is no limitation on Member States adopting such a policy as Article 13 states that this “Directive shall be without prejudice to the right of Member States to adopt or maintain provisions that are more favourable to the persons to whom it applies.”

However, when a person is finally granted a permit under this Directive, they will have access to the entire territory of the Member State in which they reside. They will also benefit from Article 12 (1) which aims for the rights of the third-country nationals to be equal to the nationals of the Member State in question. These rights include the right to social security; working conditions, including health and safety and pay; freedom of association, affiliation and membership of an organisation without prejudice to public policy or national security; education and vocational training and access to goods and services including procedures for obtaining housing amongst others.

Article 12, though providing the vision and possibility for freedoms for third-country nationals equivalent to those of the nationals of the Member State, is also followed by Article (2) and (3) which provide for effective ‘get-out clauses’ for Member States. For example, Article 12.1 (f) states that “access to goods and services and the supply of goods and services made available to the public including procedures for obtaining housing as provided by national law. This paragraph is without prejudice to the freedom of contract in accordance with Union and national law”. However, Article 12.2 states that Member States may be able to restrict equal treatment with nationals “under paragraph 1 (f) in respect to housing. Furthermore, in Article 12.3, it emphasises that the right to equal treatment does not prejudice Member States ability to “withdraw, refuse” permits.

Finally, this Directive also provides for the ability to maintain an ongoing evaluation procedure through periodical reports from the Commission and annual communication from Member States on the volume of permits granted. The obligation to maintain such discussion allow for the Directive to be an evolving one that can be improved with experience and adjusted to meet societal changes.

Mohini

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