3 Admission of third-country nationals
for the purpose of research
| (25477)
7815/04
COM(04) 178
| (a) Commission Communication on a draft Directive and two draft Recommendations on the admission of third- country nationals to carry out scientific research in the European Community
(b) Draft Council Directive on a specific procedure for admitting third-country nationals for the purposes of scientific research
(c) Draft Council Recommendation to facilitate the admission of third-country nationals to carry out scientific research in the European Community
(d) Draft Council Recommendation to facilitate the issue by the Member States of short-stay visas for researchers from third countries travelling within the European Community for the purpose of carrying out scientific research
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| Legal base | (a) —
(b) Article 63(3)(a) and 63(4) EC; consultation; unanimity
(c) Article 63 EC; consultation; unanimity
(d) Article 62(2)(b)(ii) EC; co-decision; QMV
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| Document originated | 16 March 2004
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| Deposited in Parliament | 24 March 2004
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| Department | Home Office |
| Basis of consideration | EM of 14 April 2004
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| Previous Committee Report | None
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| To be discussed in Council | No date set
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| Committee's assessment | Politically important
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| Committee's decision | Not cleared; further information requested
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Background
3.1 Article 62(2)(b)(ii) of the EC Treaty requires the Council,
acting in accordance with the procedure in Article 67, to adopt
measures on the procedures and conditions for issuing of visas
by Member States. Article 67(4) requires that, after 1 May 2004,
measures adopted under Article 62(2)(b)(ii) be adopted in accordance
with the procedure in Article 251 — that is, co-decision
and qualified majority voting.
3.2 Article 63 of the EC Treaty requires the Council,
acting in accordance with the procedure in Article 67, to adopt
measures on, among other things, conditions of entry and residence
and the rights and conditions under which third-country nationals
legally resident in a Member State may reside in other Member
States. Article 67(2) requires the Council, after 1 May 2004,
to decide whether measures for which Article 63 is the legal base
should be adopted in accordance with the procedure in Article
251. The Council has not yet decided the question. Until it
has done so, the procedure for adopting measures, for which Article
63 is the legal base, is consultation with the European Parliament
and unanimity by the Council.
3.3 Article 249 of the EC Treaty provides that Directives
are binding as to the result to be achieved but leave Member States
the choice of form and method. Recommendations are not binding
on Member States.
3.4 Measures adopted under Title IV (visas, asylum,
immigration and other policies related to the free movement of
people) of the EC Treaty do not apply to the UK unless it gives
notice of its wish to opt into them.
The document
3.5 The document comprises:
- a Commission Communication;
- a draft Directive; and
- two draft Recommendations.
THE COMMUNICATION
3.6 In March 2000, the Lisbon European Council set
the goal for the European Union to become the most competitive
and dynamic knowledge-based economy in the world by 2010. The
Commission says that the mobility of research workers has an important
contribution to make to the achievement of the goal. It notes
that the Lisbon European Council also asked the Commission and
the Council, together with Member States, to remove obstacles
to the mobility of researchers and to attract to and retain research
talent in Europe.
3.7 The Commission says that the Community will need
700,000 more researchers by 2010 if it is to achieve the objective
of devoting 3% of Member States' GDP to research and technological
development by then. Because it is unlikely that the Community
will produce that number of researchers itself, it will be necessary
to attract researchers from outside the Community.
3.8 This is the purpose of the draft Directive.
The Commission says, however, that the Directive is not sufficient
on its own and so two Recommendations are proposed in addition.
The first of them is required because it takes several years
between the presentation of a proposal for a Directive and the
time when it comes into force. The purpose of the first Recommendation,
therefore, is to call on Member States to take action on some
matters covered by the proposed Directive before it is transposed
into national law. Moreover, the first Recommendation deals with
some matters not covered by the draft Directive. The second Recommendation
deals with short-term visas for researchers from third countries
who need to attend conferences or seminars in the EU.
THE DRAFT DIRECTIVE
3.9 The aim of the draft Directive is to facilitate
the admission to the Community and the mobility of researchers
who are nationals of third countries.
3.10 The purpose of the Directive is to specify the
conditions for the admission to Member States of third-country
researchers (defined as holders of a master's degree or the equivalent)
for more than three months for the purposes of a research project
under a "hosting agreement" with a research organisation.
3.11 Any research organisation (public or private)
which wishes to host a researcher under the Directive must first
apply to and be approved by the Member State where it is located.
When applying for approval, a research organisation must give
the Member State undertakings that it will assume responsibility
for the researcher's:
- residence costs;
- health costs; and
- cost of return travel.
Member States may withdraw approval from a research
organisation in certain circumstances.
3.12 Approved research organisations which wish to
host a researcher must sign a "hosting agreement" with
the researcher, subject to the issue of a residence permit to
the researcher. Research organisations may only sign a hosting
agreement if they have satisfied themselves:
- about the purpose and duration
of the research project and the availability of funding for it;
- about the researcher's qualifications for the
project; and
- that the researcher will have sickness insurance
and at least the minimum amount of money set by the Member State
to cover monthly expenses and return travel costs.
3.13 Member States must admit researchers and give
them residence permits if they have a valid passport (or equivalent),
a hosting agreement and a statement by the research organisation
accepting financial responsibility for the researcher's living,
health and return travel costs; and if they do not pose a threat
to public policy, security or health. Residence permits may be
removed in certain circumstances.
3.14 Applications for residence permits may be made
either by the researcher or by the research organisation. Member
States must decide the application within thirty days. Member
States may recover their costs from fees for residence permits.
3.15 Member States are required to take the action
necessary to implement the Directive by the end of 2006.
DRAFT RECOMMENDATION TO FACILITATE THE ADMISSION
OF THIRD-COUNTRY NATIONALS TO CARRY OUT RESEARCH
3.16 The draft makes three main recommendations,
First, it recommends Member States to encourage the admission
of researchers to the Community by exempting them from work permit
requirements or by issuing permits automatically; to refrain from
using quotas to restrict the admission of researchers from third
countries; and to guarantee third-country researchers the possibility
of working as a researcher without a maximum time limit.
3.17 Second, the draft recommends Member States to
set a deadline of 30 days for the issue of residence permits to
researchers; to guarantee that their residence permits will be
renewed indefinitely; and gradually to involve research organisations
in the admission procedure.
3.18 Third, the draft recommends Member States to
facilitate the admission of researchers' families.
DRAFT RECOMMENDATION TO FACILITATE THE ISSUE OF UNIFORM
SHORT-TERM VISAS TO RESEARCHERS
3.19 The draft makes four main recommendations.
Member States are recommended to expedite the examination of visa
applications from researchers from third countries; where necessary,
to issue researchers with multiple entry visas; and to encourage
the issue of visas without an administrative fee. Member States
are also recommended to harmonise their approach to the evidence
researchers are required to provide in support of their visa applications.
The Government's view
3.20 The Parliamentary Under-Secretary of State at
the Home Office (Caroline Flint) tells us that, under current
UK immigration policy, researchers coming here from countries
outside the European Economic Area are required to obtain a work
permit. The host organisation applies for the permit.
3.21 The draft Directive would abolish the work permit
requirement, together with the requirement for prospective employers
of such researchers to show that they have tried to recruit to
the post a suitably qualified resident.
3.22 Under the current UK arrangements, the immigration
authorities check that applicants for a work permit are qualified
to do the work and can support themselves without help from public
funds. The draft Directive would make the research organisation
responsible for doing these checks and the immigration authorities'
responsibilities would be confined to establishing the identity
of the researcher and to satisfying themselves that the researcher
did not pose a threat to public policy, security or health.
3.23 The Minister also tells us that the first of
the two proposed Recommendations would have similar effects on
UK arrangements to those of the draft Directive. The requirement
for work permits and the associated checks by the immigration
authorities would be removed.
3.24 The Minister says that the second Recommendation
— on the issue of short-term visas to researchers —
is a development of the Schengen acquis on borders and visas.
The UK has chosen not to take part in the relevant part of the
acquis.
3.25 The Minister adds that primary legislation would
be required to give effect in the UK to the proposals in the draft
Directive and Recommendations.
Conclusion
3.26 It is not apparent from the Commission's
document or the Minister's Explanatory Memorandum whether our
current immigration law is causing detriment to the UK by deterring
researchers from third countries from coming here. We find it
difficult, therefore, to reach a view on whether the proposals
are proportionate, so far as they might apply to the UK.
3.27 The Commission justifies the first of the
draft Recommendations partly on the ground that it would encourage
Member States to facilitate the admission of researchers before
the Directive can be brought into effect. But it is not apparent
why such a Recommendation is necessary in this case but not in
the case of the many other draft Directives which come to us for
scrutiny.
3.28 The Government has not told us whether it
intends to opt into all or any of these proposals. Nor is it
clear from the Explanatory Memorandum whether the Government supports
the proposals and what reservations, if any, it has about them.
3.29 We ask the Minister to tell us, therefore:
- whether there is evidence
that current immigration legislation is deterring researchers
from coming here to the detriment of the UK and whether the Commission's
proposals would be likely to attract more researchers to come
here to the benefit of the UK;
- to comment on the Commission's view that action
to facilitate the admission of researchers from third countries
is so urgent that the proposed Recommendation is necessary before
the Directive can be brought into effect;
- whether the Government supports the proposals
and what reservations, if any, it has; and
- whether the Government intends to opt into
all or any of the proposals.
3.30 We shall keep the document under scrutiny
pending the Minister's reply.
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