EU Directive on a single application procedure for a single permit for third-country nationals to reside and work – groping towards harmonisation of EU migration law
In the area of migration and asylum EU Member States are moving in a direction where they are inclined not to desire a harmonisation of their policies but rather the opposite. The best proof of this is the unprecedentedly complex and protracted adoption process [1] and the final wording of the text of the Directive on a single application procedure for a single permit for third-country nationals to reside and work and on a common set of rights for this country rd-workers legally residing in a Member State [2] (henceforth “single-permit directive”).
There is in fact no comprehensive EU common asylum and migration policy. The immigration and asylum reality in individual EU Member States is strikingly different and a consensus among Member States is very hard to reach [3] and is, in fact, based on restriction. The Common European Asylum System in the common area of law and freedom brings increasingly frequent and more pronounced infringements of Geneva Convention rules. A number of genuine refugees never make it to a just asylum procedure; the approaches of individual countries continue to be very diverse – currently Syrian or Afghan, before that Iraqi or Chechen asylum seekers, all with similar and often justified claims, have, and had in the past, an almost zero chance of being granted asylum in one EU country and an almost 95% probability of succeeding in another. In one EU Member State applicants wait several weeks for a favourable answer, in another their application will not have been rejected even several years after being filed. I am not speaking only about Greece and Malta; the dividing line, in my view, runs along the border between the old and new Member States.
There is an agreement among EU Member States especially on the issue of stopping migration flows as far from one’s own borders as possible. The regulation on the European Border Surveillance System (EUROSUR) [4] will come into effect on 1st October 2013; it has been designed to ensure the impermeability of the external borders of the European Union with the help of drones, robots and other, especially technical, measures. The proposed Entry/Exit System [5], planned to cost approx. 1.1 billion EUR, is to provide for the storage of the fingerprints of all third-country citizens crossing the external borders of the EU and thus facilitate the identification of overstayers, i.e. individuals who remain in a country after their visa has expired. In this context, experts are racking their brains to find a way of separating checks of frequent third-country travellers [6]. So for instance at the Vyšné Nemecké border, where I have recently waited for 3 hours to be able to enter EU territory from Ukraine after a two-day visit to Transcarpathia, there will apparently be several separate entrances - the first for 1st class individuals , i.e. EU citizens; the second for 2nd class individuals – for frequently travelling people from third countries; and the third for 3rd class individuals - the unfortunate souls, who want to enter our space of freedom and law for the first and last time.
Generously supported and fancy-named projects for capacity building or sensitive migration management, implemented on the other side of the eastern EU borders by, usually, IOM [7], mean nothing else except the development of an increasing number of new detention centres with the aim of stopping immigrants or refugees on their way into the EU. The persecuted individual, of course, will be lost in this system. [8] The Mobile Partnership concept, too, did not lead to any breakthrough in the admission of third-country nationals, and because of its accent on returning people, readmission and border protection it is at times referred to as the “immobility partnership” [9].
Agreement on the issue of admitting third-country nationals is, on the other hand, rare and as a rule applies only to highly qualified foreign nationals, such as those admitted under the Blue Card Programme [10], or only to the acceptance of selected categories of third-country nationals. [11] In recent years, however, an increasing number of Member States is becoming aware of the necessity to accept foreign workers especially for demographic and economic reasons [12], but they do so on their own terms and according to their own needs.
From that point of view, the Single Permit Directive may be considered ground-breaking as it does not apply only to sought-after highly qualified labour force. However, a more detailed study of its content will reveal the small scope of the rights of third-country workers that Member States would be willing to acknowledge.
The Directive applies to third-country nationals applying for the right to reside in an EU Member State for the purpose of work, further to third-country nationals already residing legally in an EU Member State for the purpose of work, and then to third-country nationals who have been granted the right to reside on the basis of another immigration status and hold a work permit, e.g. family members of a third-country worker, students and scientists. Excluded from the scope of the Single Permit Directive, on the other hand, are 12 categories of third-country nationals, including asylum seekers and holders, sailors and au-pairs. The exclusion was made either because of the more favourable status of some categories of third-country nationals (e.g. that of EU resident) or, on the contrary, due to the specific situation of some categories of third-country nationals to whom Member States do not want to award a broader scope of rights (e.g. posted third-country workers transferred by their company to another Member State are not considered a part of the labour market in the host country; seasonal workers are not covered by the Directive due to the temporary nature of their stay, etc.).
The single permit applies only to the territory of the EU Member State which issued it and is valid for the whole territory of that Member State with the reservation of possible restrictions stipulated by national legislation. The permit applies to work in a specific profession, to which the third-country national is entitled in accordance with national law. This, unfortunately, does not resolve the long-standing problem in the Czech Republic of the dependence of the third-country national on a specific employer, placing the third-country national into a deeply unequal position in the relationship with his/her employer.
The Directive does not stipulate the validity period of the single permit. According to the Single Permit Directive, the competent authority must issue a decision within 4 months, but, without any more precise definition, this time limit “may be extended in exceptional circumstances, linked to the complexity of the examination of the application“ for an unspecified period of time. In the Czech Republic we have rather bad experience with such unspecified circumstances of extended time limits - both in the asylum, and residential permit agenda of the Ministry of the Interior.
Chapter three of the Directive contains probably the most significant provision concerning the right to equal treatment with nationals of the Member State, especially with regard to working conditions including pay, freedom of association and affiliation (I would especially welcome larger inclusion of third-country nationals in trade union organisations and more intensive effort on the part of unions in the benefit of third-country nationals), recognition of diplomas and professional qualifications, and access to advice services provided by employment offices. The Directive provides for equal access to education and vocational training, but this is simultaneously restricted by many exceptions; a similar approach is adopted in the case of equal access to social security and to public services. The Directive also provides for the transferability of the worker’s pensions if he/she decides to leave for a third country [13], which, however, in my opinion does not imply the automatic entitlement to the worker’s contributions to the social security system of the host state being paid out to him, even if he had never drawn any benefits.
An interesting provision of the Directive concerns procedural guarantees. Member States may reject the application to issue a single permit as inadmissible on the grounds of the volume of admitted third-country nationals and, on that basis, the application need not be processed. In other words, EU Member States are indirectly challenged to set their own quotas at random, which would paradoxically bring more legal certainty for applicants for Czech work permits. In the current situation the applicants repeatedly file applications for residence permits for the purpose of work, which for reasons of restrictions that have not been made public – in other words secret quotas – the applicants have no chance of getting; they are losing time, money and faith. On the other hand, the Directive provides for the possibility of submitting applications in a third country, which in view of the current set-up of the VISAPOINT registration system [14] it gives hope of an improvement of the current state.
The conclusion drawn from what has been said above is that the practical benefit of the Directive on a single application procedure for a single permit for third-country nationals to reside and work will evidently be very small. It is not only the specific setting of the Directive, but the migration reality in the employment of third-country nationals - and not only in the Czech Republic. As long as it remains a common practice to circumvent labour-law regulations and guarantees of equal treatment via sub-sub-supplier contracts, to use the “Švarc system” and hire out employees, etc. [15] – often with the silent approval of government authorities – even the positive provisions of the approved Directive will affect only a small part of the third-country nationals economically active on the labour market, for whom it has been designed.
This commentary was presented at “The Residence of Third-Country Nationals: Selected Legal Issues” seminar hosted by the Public Defender of Rights (the Ombudsman) on 28th March 2013.
The text was written as a part of the project “Foreign workers in the Labour Market“, which is carried out by the Association for Integration and Migration (SIMI) in cooperation with the Organization for Aid to Refugees (OPU) and Multicultural center Prague. International partners of the project are Caritasverband für die Diezöse Osnabrück from Germany and Anti - Slavery International from Great Britain.
[2] Directive 2011/98 EU of the European Parliament and of the Council of 13 December 2011.
[3] Compare: Enhancement of the Role of the Non-for-profit Sector in the Social Integration of Work Migrants in the Czech Republic, comparison of the practice in the Czech Republic, Portugal and Austria, p. 15 and following, published by the Association for Integration and Migration, Prague 2012.
[4] European Border Surveillance System (EUROSUR), European Parliament Legislative Observatory Procedure File 2011/0427(COD).
[5] Proposal for a Regulation of the European Parliament and of the Council establishing an Entry/Exit System (EES) to register entry and exit data of third country nationals crossing the external borders of the Member States of the European Union, COM(2013) 95 final.
[6] Proposal for a Regulation of the European Parliament and of the Council establishing a Registered Traveller Programme, COM(2013) 97 final.
[7] For example the CBMM project in Ukraine, http://ec.europa.eu/europeaid/documents/case-studies/ukraine_cbmm_en.pdf, or the on-going projects Gumira (2.6 million EUR) and Sireada (2.3 million EUR).
[8] See the Human Rights Watch press bulletin Ukraine: Migrants and Asylum Seekers Tortured, Mistreated, EU Ignoring Abuse of Those Sent Back, Lack of Protection for Refugees and Children of 16 December 2010, or the extensive Human Rights Watch reported titled Buffeted in the Borderland: The Treatment of Asylum Seekers and Migrants in Ukraine of 16 December 2010.
[9] See WEINAR, A. Mobility partnerships – what impact do they have on legal migration and mobility, published by the Migration Policy Centre, European University Institute, Florence, www.migrationpolicycentre.eu/ .
[10] See section 42 (i) of Act 326/1999 Sb., on the residence of third-country nationals in the Czech Republic and Council Directive 2009/50/EC on the conditions of entry and residence of third-country nationals for the purposes of highly qualified employment.
[11] Council Directive 2004/114/EC on the conditions of admission of third-country nationals for the purposes of studies, pupil exchange, unremunerated training or voluntary service or Council Directive 2005/71/EC on a specific procedure for admitting third-country nationals for the purposes of scientific research. Currently under negotiation is the Proposal for a Directive of the European Parliament and of the Council on the condition of entry and residence of third-country nationals for the purposes of seasonal employment COM(2010) 379, and the Proposal for a Directive of the European Parliament and Council on conditions of entry and residence of third-country nationals in the framework of an intra-corporate transfer COM(2010) 378.
[12] See e.g. articles in Der Spiegel, 9/2013, Der deutsche Traum, p. 31 and following, or in the Austrian Die Presse daily of 11 February2013, titled Kaum gezielte Zuwanderung nach Österreich.
[13] Article 12 paragraph 4 of the Directive.
[14] See Resolution of the Committee on the Rights of Foreigners of 7 February 2013 at http://www.vlada.cz/cz/ppov/rlp/aktuality/usneseni-vyboru-pro-prava-cizincu-ze-dne-7--unora-2013-103833/.
[15] E.g. Wenig Rechte Wenig Lohn, Wie Unternehmen Werkverträge (aus)nutzen, published by Gewerkschaft Nahrung-Genuss-Gaststätten, 2013. Available at www.faire-mobilitaet.de.
Martin Rozumek is a lawyer and the director of the Organisation for Aid to Refugees (Organizace pro pomoc uprchlíkům – OPU).