The recast of the Long-Term Resident and Single Permit Directives: Towards Added Value At Last?
07 Friday Oct 2022
by Jean-Baptiste Farcy, Attorney at the Brussels Bar (Altea) and Teaching Assistant at the University of Gent.
The rationale behind an EU-wide labour immigration policy is well-known: Europe has an ageing population and labour market shortages are growing in some sectors of the economy where the local workforce cannot meet the demand of employers. According to the European Commission, activating and upskilling the domestic workforce would not be sufficient to address existing and forecasted shortages. Attracting and retaining skills and talents would therefore foster the competitiveness of the EU economy. Additionally, legal pathways would improve the overall migration management and may, to some extent, reduce irregular migration.
These are obvious political and economic reasons supporting the admission of labour immigrants. Whether these reasons call for an EU wide policy is however less obvious. As the Commission increasingly acknowledges, the situation on national labour markets are diverse due to different policies and unequal national economies. Hence Member States have showed resistance to the adoption of an EU policy substituting pre-existing national policies and they wish to retain national schemes which are more flexible and tailored to their specific needs.
The long-awaited reform of the old ‘Blue Card’ Directive clearly illustrates this point. Although the Commission had proposed to eliminate the possibility of parallel national schemes for highly qualified workers, the Council insisted on maintaining the possibility of such schemes. The final text adopted on 20 October 2021 maintains this option but, as a compromise, the Directive aims to ensure a level playing field between EU Blue Cards and national residence permits for highly skilled workers, in particular in terms of procedural safeguards and equality of treatment (see Articles 11 (6), 12, 13 (5), 15 (6), 16 (7), 17 (10) and 24 (2) of Directive 2021/1883). Member States are however not required to extend national rules on substantive conditions for admission to Blue Card applicants. The competition between the EU and national schemes thus remains.
As argued in my doctoral dissertation (for the full text in French see here and here for an article in English), the EU policy should not aim at replacing national policies. Member States are better placed to assess their needs, national policies are more flexible as they can be adapted more rapidly through governmental decrees and national decisions arguably carry a greater democratic legitimacy which, in a politically contested field such as labour immigration, is not to be neglected. Instead, the EU institutions should aim at complementing national policies through EU wide measures bringing a real added value in attracting and retaining third-country workers. While admission criteria would remain national, such measures could include procedural safeguards to ensure swift procedures, reinforced rights to avoid social dumping and to facilitate the integration of third-country workers, improved possibilities for occupational mobility and enhanced intra-EU mobility.
The proposed revisions of the Long-Term Resident and the Single Permit Directives arguably go in that direction. Considering that both pieces of legislation have not fully achieved their objectives, the Commission wishes to increase their added value and hence their effectiveness in practice.
Currently, the long-term resident status created by the 2003 Directive is under-used compared to national schemes. According to the Commission, the main reason is that Member States have not actively promoted the use of that status and continue to issue national long-term residence permits unless third-country nationals explicitly ask for the EU permit. However, the lack of a clear added value is arguably a bigger factor behind the limited success of the EU Long-Term Resident status. Although periods of absence from the territory of the EU can last up to 12 months (see article 9 of Directive 2003/109), and as the Court of Justice ruled in January 2022 it is sufficient for the status holders to be present in the EU only a few days a year while residing in a third-country, the main drawback of the 2003 Directive is to impair intra-EU mobility through optional protectionist clauses (see Articles 14 (3) and 21 (2)). Fostering intra-EU mobility, and thus bringing closer the status of third-country nationals who have lived in an EU Member State for at least five years and the status of EU citizens, would have undoubtedly made the long-term resident status more attractive for third-country nationals.
The evaluation of the implementation of the Single Permit Directive also revealed a number of gaps and shortcomings. Although the Directive aimed to simplify application procedures and foresees a processing time of maximum four months (see article 5 (2)), in some countries the procedure remains inefficient and in practice the four months time-limit may be exceeded due to visa and in-country administrative steps before a third-country national may be allowed to start working (according to Article 4(3) of the Directive, the single application procedure is without prejudice to the visa procedures that may be required for initial entry). Regarding the equal treatment provision (article 12), the limited added value of that provision has been highlighted by the literature (see here and here). Moreover, the Commission acknowledged that linking the single permit to one employer increases the risk of exploitation. Since the legality of third-country nationals’ stay on the territory of a Member State is linked to their continuous employment, immigration law actually reinforces the power of the employer and increases the vulnerability of workers (see Freedland and Costello’s chapter in their book Migrants at Work: Immigration and Vulnerability in Labour Law). Overall, this does not increase the attractiveness of the EU and not allowing third-country nationals to change employers prevents greater retention of third-country nationals already working lawfully in the EU. The Commission thus called for a recast of the Single Permit Directive.
The proposed recast Directives: fine-tuning measures to increase the added value of the EU acquis
The main element of the recast proposal of the Long-Term Resident Directive is to greatly comprehend the transnational nature of the EU. This means that the intra-EU mobility of third-country nationals would be taken into account and encouraged both before and after the acquisition of long-term resident status. Although five years of legal and continuous residence would still be required to obtain that status, third-country nationals would be permitted to accumulate residence in multiple Member States (article 4 of the proposal), whereas this is currently only permitted under certain conditions for EU Blue Card holders (article 16 of Directive 2009/50/EC). At the time of application for the long-term resident status, it is nonetheless foreseen that applicants would need to show evidence of legal and continuous residence for at least two years within the territory of the Member State where the application is filed.
To facilitate the acquisition of the long-term resident status, the proposal also makes it clear that any period of residence spent as holder of a long-stay visa or residence permit issued under Union or national law should be fully taken into account, including periods of residence in a capacity or under a status that is currently excluded from the scope of the 2003 Directive, such as residence for study purposes, residence as beneficiary of national or temporary protection, or residence initially based solely on temporary grounds, such as seconded employees (see article 4 (5)).
Another ambition of the Commission is to promote intra-EU mobility for those who have obtained the long-term resident status by removing a number of barriers that have so far hampered it. In particular, the second Member State should no longer be entitled to carry out a labour market test when examining applications submitted by long-term residents status holders who intend to take up employment in that Member State. Long-term residents should also be allowed to start work in the second Member State no later than 30 days after the date of submission of their application (article 17 (5) of the proposal). According to the recast proposal, equal treatment with nationals of the second Member States is to be guaranteed in the same areas and under the same conditions referred to in article 12 of the proposal, including access to the labour market. The possibility for the second Member State to restrict such access in the first 12 months, as it is the case today, would thus be removed. The status of third-country nationals in the second Member State would nonetheless be less advantageous than in the first Member State since they would be granted a renewable residence permit (and not the long-term resident status). In order to speed up the integration in the second Member State, the proposal provides that the required period of residence in the second Member State should be three years (article 26). After that period of time, third-country nationals should be granted the long-term resident status in the second Member State as well.
The recast proposal of the Single Permit Directive has been presented in details by Tesseltje de Lange in a recent post on this blog. As discussed, if the recast proposal is to be adopted as such, procedural fairness and the rights of third-country workers would be enhanced. In order to streamline single permit applications across the EU, the Commission is proposing to allow applications filed either from a third country or in-country (as long as the third-country national is residing lawfully), where in-country applications are currently subject to national provisions. Forcing third-country nationals to leave the territory of the Member States where they reside to apply for a single permit is indeed a cumbersome obstacle which appears unnecessary and unjustified. Additionally, to ensure that the whole application process is not excessively long, which may dissuade employers, the proposal foresees that the four months maximum time-limit must include the labour market test and the visa application (if applicable). Therefore no later than four months after the date of the single permit application, the applicant should be ready to work in the Member State of destination. The proposal does not however foresee any consequence if the time limit is not respected, this remains an issue to be regulated at national level.
To foster employment mobility and to prevent the adverse effects of linking the single permit to one employer, the Commission is proposing to allow single permit holders to change employers within their permit validity. A new single permit application would thus not be required. A change of employer may nonetheless be suspended for a maximum of 30 days after the change is communicated to the relevant authorities. This period would allow Member States to check whether legal requirements are fulfilled (for instance salary or educational requirement) or to conduct a labour market test if applicable. Moreover, in case of loss of employment and as long as the single permit is still valid, it is proposed to give at least three months to third-country nationals before national authorities could withdraw their single permit, thus allowing them to look for new job opportunities. The underlying objective is to increase the retention of third-country nationals in case of resignation or dismissal. This is to be welcomed to the extent that it fosters labour market mobility and offers greater flexibility and freedom to third-country nationals who would no longer be tied to their employer, thus reducing the risk of abuse and violations of labour law.
Finally, it should be noted that, although in the “New Pact” the Commission had proposed to reflect on admission conditions for low- and medium-skilled workers, this idea was eventually abandoned. As I argued previously, this would have created unnecessary confusion since the Single Permit Directive does not regulate conditions of entry and stay but aims to simplify procedures and to create a common set of rights for all migrant workers irrespective of their skills. Although the Commission intended to fill the gap as the EU acquis does not regulate the admission of low- and medium-skilled workers (with the exception of seasonal workers), it is doubtful whether there is a need for an EU intervention here as national legislation and EU free movement of people and services provide adequate answers, or that in any case there is a sufficient political will to adopt common admission criteria for these categories of workers.
A step in the right direction
Labour immigration is obviously a contested policy field. Any intervention from the EU in this field is subject to high scrutiny and resistance from Member States sitting in the Council. The reform of the Blue Card Directive after five years of negotiations clearly illustrates this point, especially considering that highly skilled workers is the least contested category of labour migrants.
As a consequence, the EU should aim to complement national policies through the adoption of measures which carry a clear added value. The aim is to support, rather than to replace, national policies. This can be done through facilitated intra-EU mobility (something Member States can hardly offer on their own), swifter immigration procedure in the interest of employers and immigrants alike, and increased socio-economic rights in order to ensure the fair treatment of third-country nationals.
In view of the recast proposals discussed above, the Commission is arguably heading in the right direction. The intention is indeed to facilitate intra-EU mobility for long-term resident status holders, to make procedures faster, to increase migrant workers’ mobility on the labour market and to ensure greater equality with the national workforce. All of these measures arguably contribute to a better and more efficient immigration management, while leaving the thorny issue of admission (especially for low- and medium-skilled workers) to national policy-makers.
