Documents considered by the Committee on 4 March 2015 - European Scrutiny Contents


20 Entry and residence of third country nationals

Committee's assessment Politically important
Committee's decisionCleared from scrutiny; further information requested; drawn to the attention of the Business, Innovation and Skills Committee and the Home Affairs Committee
Document detailsDraft Directive on the conditions of entry and residence of third country nationals for the purposes of research, studies, pupil exchanges, remunerated and unremunerated training, voluntary service and au pairing
Legal baseArticle 79(2)(a) and (b) TFEU; co-decision; QMV
Department

Document numbers

Home Office

(34791), 7869/13 + ADDs 1-2, COM(13) 151

Summary and Committee's conclusions

20.1 The draft Directive would repeal and replace two Directives, adopted in 2004 and 2005, which establish common rules on the entry and residence of third country (non-EU) national students and researchers pursuing a full-time course of study at a higher educational establishment or carrying out post-graduate research at an approved research organisation within the European Union. Both are intended to promote Europe as a centre of excellence for academic study and research but the Commission considers that there are significant weaknesses in their operation which its new proposal is intended to address. It says that a more coherent legal framework is needed to attract talent to the EU, boost the competitiveness of the European economy through research and innovation, foster the transfer of skills and promote the development of human capital and cultural exchanges.

20.2 The draft Directive would extend the scope of existing EU rules to include additional categories of third country nationals — those participating in training programmes, voluntary or au pair work, and pupil exchange schemes — as well as students and researchers. The conditions for admission largely reflect existing rules, but there are new provisions on au pairs and trainees which are intended to address their vulnerability to exploitation. The draft Directive would increase the hours that students are entitled to work (from a minimum of 10 to at least 20 hours per week) and introduce a right for students and researchers to remain in the host Member State after completion of their studies or research for up to 12 months in order to look for work or set up a business. There are more favourable provisions on mobility within the EU in order to pursue studies, training or research in a second Member State and on the right of family members accompanying third country researchers to access the labour market.

20.3 The draft Directive is subject to the UK's Title V (justice and home affairs) opt-in. The UK does not participate in the 2004 and 2005 Directives, which the draft Directive would replace, and the Government confirmed in July 2013 that it had decided not to opt into this proposal. The Government indicated, however, that it intended to play a full part in negotiations on the draft Directive, would "seek to shape it in the national interest", and would "carefully consider the case for a post-adoption opt-in", adding that any decision to seek to opt in after the Directive had been adopted would be subject to the usual Parliamentary scrutiny procedures.[102]

20.4 Given the possibility of a post-adoption opt-in, we decided to hold the draft Directive under scrutiny and asked the Government to provide progress reports on the negotiations, as well as some indication of its negotiating objectives.

20.5 We note that there are some substantial differences in the positions agreed by the Council and the European Parliament which, at first sight, would appear difficult to bridge. As the Minister has effectively ruled out the possibility of a post-adoption opt-in during the tenure of this Government, we are content to clear the draft Directive from scrutiny but ask to be kept informed of the outcome of trilogue negotiations between the Council, European Parliament and Commission. If a future Government were to consider seeking to opt in once the Directive has been adopted, we would expect the agreed text to be deposited for scrutiny with an Explanatory Memorandum setting out the Government's position. We would, at that stage, wish to consider recommending an opt-in debate.

20.6 The Business, Innovation and Skills Committee and the Home Affairs Committee have a long-standing interest in UK policy on the admission of students and researchers for graduate and post-graduate studies and research. We therefore draw this chapter to their attention.

Full details of the documents: Draft Directive of the European Parliament and of the Council on the conditions of entry and residence of third country nationals for the purposes of research, studies, pupil exchanges, remunerated and unremunerated training, voluntary service and au pairing: (34791), 7869/13 + ADDs 1-2, COM(13) 151.

Background

20.7 Our earlier Reports, listed at the end of this chapter, provide further information on the draft Directive and the Government's position.

20.8 The Government's decision not to opt into the draft Directive was based on a number of factors. Whilst acknowledging that some elements of the proposal were broadly in line with the UK's Points Based System, the Government suggested that others appeared to go against the grain of recent immigration reforms without providing any significant countervailing benefits. Particular areas of concern highlighted by the Government were:

·  the conferral of a right to remain in the UK for up to 12 months after the completion of higher education studies or research for the purpose of seeking employment;

·  the possible limitation of the UK's ability to apply additional sponsorship requirements or a "genuineness test" for those seeking admission to pursue a course of study;

·  the extension of social security entitlements for third country researchers; and

·  the risk that participation in the draft Directive would undermine the UK's ability to control immigration.[103]

The Minister's letter of 24 February 2015

20.9 The Immigration and Security Minister (James Brokenshire) explains that discussions during the Italian Presidency (ending in December 2014) focussed on the scope of the draft Directive:

    "A number of Member States took the position that the scope of the Directive should, on subsidiarity grounds, be restricted to students and researchers only, on the basis that management of the admission of other groups covered by the proposal (trainees, volunteers and au pairs) would be sufficiently achieved at Member State level. This position was linked to a concern that the provisions of the Directive would be mandatory i.e. they would not permit Member States to operate parallel 'national' schemes for the categories of migrants covered by the Directive."

20.10 The Minister notes that, in light of the Government's decision not to opt into the draft Directive, the UK did not intervene strongly in Council discussions. A compromise was reached on the basis that the provisions of the draft Directive concerning students and researchers would be mandatory for all participating Member States, but those concerning other categories (pupil exchange schemes, educational projects, unremunerated training or voluntary service) would not. Remunerated trainees, volunteers and au pairs would be removed from the draft Directive.

20.11 The European Parliament agreed its First Reading position on the draft Directive in February 2015.[104] The Minister expects trilogue negotiations to focus on "those aspects of the draft Directive with which the UK has strong concerns". He continues:

    "The EP will press for all the categories of the Directive to be binding and for the intra-EU mobility provisions of the text to be extended beyond the student and researcher categories, as well as for strengthening of the equal treatment provisions. On employment rights, the EP has signalled its wish that the draft Directive should provide for all third country students to be allowed to work for at least 20 hours per week (at odds with UK policy for sub-graduate level students), and be granted permission to seek work or establish business for a period of 12 months on completion of their studies (at odds with UK's decision to end the Tier 1 (Post Study Work) category)."[105]

20.12 The Minister expects the Council to push back in these areas, but adds:

    "It is nevertheless the UK's expectation that the resulting text would be one that would, if the UK was bound, impact adversely on the UK's ability to regulate the entry and residence of third country economic migrants. I do not therefore expect to reconsider the UK's decision not to opt in to the proposal in the event that it is presented for adoption. I will, however, continue to update the Committee on the measure's progress towards agreement."

Previous Committee Reports

Thirty-ninth Report HC 86-xxxviii (2012-13), chapter 9 (17 April 2013) and Twelfth Report HC 83-xii (2013-14), chapter 9 (17 July 2013).


102   Letter of 12 July 2013 from the then Minister for Immigration (Mr Mark Harper) to the Chair of the European Scrutiny Committee. Back

103   Letter of 12 July 2013 from the then Minister for Immigration (Mr Mark Harper) to the Chair of the European Scrutiny Committee.  Back

104   A summary of the changes proposed by the European Parliament. Back

105   In fact, the changes proposed by the EP would allow students and researchers to remain for 18 months after completion of their studies to seek work or set up a business. Back


 
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Prepared 13 March 2015