20 Entry and residence of third country
nationals
| Committee's assessment
| Politically important |
| Committee's decision | Cleared from scrutiny; further information requested; drawn to the attention of the Business, Innovation and Skills Committee and the Home Affairs Committee
|
| Document details | Draft 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 base | Article 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
| 
