17EU laws on legal migration: fitness check
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Committee’s assessment |
Politically important |
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Cleared from scrutiny; drawn to the attention of the Home Affairs Committee |
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Document details |
Commission Staff Working Document: Fitness Check on EU legislation on legal migration |
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Legal base |
— |
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Department |
Home Office |
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Document Number |
(40531), 8097/19 + ADDs 1–2, SWD(19) 1055 |
Summary and Committee’s conclusions
17.1This Commission Staff Working Document sets out the findings of a “fitness check” of the EU rule book on legal migration. Its purpose is to assess how these rules have been implemented and applied by Member States, identify any gaps or inconsistencies, and consider what further action may be needed to improve the overall coherence and effectiveness of the legislation. The fitness check covers nine EU Directives (listed below in Table 1) which serve three broad objectives:
- the efficient management of migration flows into the EU by establishing common procedures and conditions of entry and residence for third country (non-EU) nationals;
- the fair treatment of legally resident third country nationals based on a set of rights comparable to those enjoyed by EU citizens;158 and
- the competitiveness of the EU economy, measured by the EU’s ability to attract and retain highly skilled workers, address labour and skills shortages, and strengthen the “knowledge economy”.159
Table 1
“TCNs” means third country nationals
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Directive |
Main elements |
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Directive 2003/86/EC on the right to family reunification Effective from October 2005 |
Applies to TCNs holding a residence permit valid for at least one year who have “reasonable prospects of obtaining the right of permanent residence”. Sets out which family members are entitled to join the TCN, how to apply, the requirements to be met (e.g. decent accommodation, sickness insurance and “stable and regular resources”) and the rights (such as access to employment and education) which a family member will enjoy. |
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Directive 2003/109/EC on the status of third country nationals who are long-term residents Effective from January 2006 Amended by Directive 2011/51/EU Effective from May 2013 |
Applies to TCNs who have been legally resident in a Member State for 5 years. Sets out the conditions for obtaining EU long-term (permanent) resident status and the rights associated with it—equal treatment (subject to limited and optional restrictions), procedural guarantees and the right to live, work and study in a second Member State. 2011 amending Directive extends the application of the 2003 Directive to beneficiaries of international protection. |
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Effective from January 2007 |
Sets out the procedures and conditions for the admission and residence of TCNs coming to study, train or volunteer in a Member State for more than 3 months. Superseded with effect from May 2018 by Directive (EU) 2016/801 (see below). |
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Directive 2005/71/EC on the procedure for admitting TCNs for the purpose of scientific research Effective from October 2007 |
Sets out the procedures and conditions for the admission of TCNs participating in a research project in a Member State lasting more than 3 months. Includes provisions on equal treatment, mobility within the EU and the residence of family members. Superseded with effect from May 2018 by Directive (EU) 2016/801 (see below). |
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Effective from June 2011 |
Sets out the procedures and conditions for the admission and residence of TCNs who are highly skilled and qualify as EU Blue Card holders. Includes provisions on labour market access, equal treatment, family reunification, long-term resident status and mobility within the EU. A 2016 proposal for a new Directive remains under negotiation. |
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Directive 2011/98/EU on a single application procedure and permit to live and work in a Member State Effective from December 2013 |
Establishes a single procedure (“one-stop shop”) for TCNs to obtain a combined work and residence permit if they meet the requirements set nationally for admission to the labour market Includes provisions on equal treatment. |
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Directive 2014/36/EU on the entry and residence of TCNs for employment as seasonal workers Effective from September 2016 |
Establishes the procedures and conditions for the admission and residence of TCNs employed as (temporary) seasonal workers within the EU for a maximum of between 5 and 9 months in any 12-month period. Includes provisions on equal treatment, accommodation and employer sanctions. |
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Effective from November 2016 |
Establishes the procedures and conditions for the admission and residence of TCNs and their family members for an intra-company transfer lasting more than 90 days. Includes provisions on equal treatment and mobility within the EU. |
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Effective from May 2018 |
Establishes the procedures and conditions for the admission and residence of TCNs for research, studies, training or European Voluntary Service (and, optionally, for pupil exchanges, other forms of volunteering and au pair work) for stays lasting more than 90 days. Includes provisions on equal treatment, economic activity and labour market access. Repeals and replaces Directives 2004/114/EC and 2005/71/EC. |
17.2All the EU’s legal migration Directives are subject to the UK’s Title V (justice and home affairs) opt-in Protocol. The UK has not opted into, and is not bound by, any of the Directives. Ireland and Denmark also do not participate. There is a separate framework—the Common Travel Area—for movement between the UK and Ireland which will remain in place once the UK has left the EU.160
17.3UK nationals currently living and working in other EU Member States are able to rely on the rights and safeguards enshrined in EU citizenship law. These rights and protections are reciprocal—they apply equally to EU citizens in the UK—but depend on the UK’s continued membership of the European Union. EU citizens who wish to live and work in the UK after the UK has left the EU and any post-exit transition period has ended will be largely outside the ambit of EU law.161 Their status will be determined by the UK’s national immigration rules, subject to any future agreement between the EU and the UK establishing a new framework for mobility. By contrast, EU law will continue to be relevant for UK nationals moving to an EU Member State (other than Ireland and Denmark) post-exit/transition. They will no longer be able to rely on EU citizenship law but may fall within the scope of one or more of the EU’s legal migration Directives.
17.4Legal migration is an area in which the EU and Member States share competence. Member States have so far been reluctant to cede wide-ranging powers to the EU. Even where the EU has the power to act, the EU Treaties make clear that it is for each Member State to determine how many third country nationals it is willing to admit to its labour market.162 These constraints mean that the Directives so far agreed follow a piecemeal or sectoral approach, focussing on specific categories of third country nationals, such as those on a temporary business secondment within the EU, seasonal workers, highly skilled economic migrants, students and researchers. The Directives therefore only cover a proportion of the estimated 18.7 million third country nationals legally resident in the EU25 at the end of 2017.163 They also include many discretionary provisions which give Member States greater scope to apply the rules differently or allow them to maintain and operate parallel national schemes.164 The European Commission suggests that a lack of awareness of the possibility to obtain EU long-term resident status and of the intra-EU mobility rights which it confers accounts for the low take-up of the EU long-term resident permit—3.1 million third country nationals held the EU permit in 2017 compared to 7.1 million holding an equivalent national permit.165 Similarly, many Member States favour their own national schemes to attract highly-skilled workers rather than promoting the EU Blue Card scheme.
17.5The categories of third country nationals least likely to be covered by EU legal migration rules are the self-employed and entrepreneurs, (non-seasonal) low and medium-skilled workers, highly mobile workers (such as performing artists), service providers from outside the EU, investors, and job seekers, as well as third country family members of EU citizens who have not exercised free movement rights within the EU or of beneficiaries of international protection who do not have full refugee status. Member States’ national laws continue to apply in these cases as well as filling any gaps left by the incomplete coverage of EU law. The “complex interaction” between EU and national rules may operate not only as a source of confusion for third country nationals, prospective employers and national immigration authorities, but also expose differences in treatment which may appear arbitrary. For example, third country nationals who are within the scope of the EU Family Reunification Directive may find it easier to bring in third country family members than those who are outside its scope and subject to national immigration law.166
17.6This patchwork of EU and national laws is set to continue. As the European Commission observes, “the EU’s geopolitical context has evolved and become more complex, and migration is now one of the central topics on the political agenda in many Member States”.167 Beyond some tinkering at the margins, further harmonisation of EU laws on legal migration would appear unlikely in the short term, with much of the EU’s legislative effort focussed on strengthening external border controls and reducing the stock of illegal immigrants.168 Nonetheless, this focus may shift again as the EU and its Member States seek to manage the longer-term demographic and socio-economic challenges resulting from an ageing workforce and skills and labour shortages.
17.7The European Commission’s “fitness check” assesses the EU legal migration Directives against the following criteria: their relevance in addressing current and future needs; their coherence as a package and their interaction with other related policy areas; their overall effectiveness and efficiency in practice; and the “added value” of EU action. The main findings are:
- the objectives underpinning EU rules on legal migration remain relevant but there are gaps in their scope of application which have resulted in a fragmented system—major categories of third country nationals are not covered and the rules are not sufficiently joined-up with other key elements in the admission process, such as obtaining an entry visa;
- the Directives have had a significant effect in ensuring a degree of harmonisation in admission criteria, procedures and the rights of third country nationals but the sectoral approach has led to inconsistencies in the rules applicable to different categories of third country nationals—often compounded by different national implementation choices—which are difficult to justify in some cases and can create legal uncertainty;
- the widespread use by Member States of the discretion given to them to take a more restrictive or a more favourable approach when implementing the Directives means that practice varies substantially, undermining the overall coherence of the EU’s legal migration framework;
- the Directives have had a generally positive effect in improving the rights granted to third country nationals and in bridging some of the differences between national rules on legal migration, but have not achieved a level playing field within and between Member States because of their limited coverage, the continued operation of parallel national schemes in some areas (long-term residence status and the admission of highly skilled workers) and disparities in Member States’ approach to the use of various optional or discretionary (“may”) clauses;
- legal and practical barriers to mobility within the EU remain, despite specific provisions on intra-EU mobility provisions contained in some of the Directives;
- there is insufficient evidence to quantify precisely the costs and benefits (efficiency) of the Directives as many other external factors, such as language, labour market opportunities, the strength of the education and research sector, affect the choices made by third country nationals migrating for work or study purposes;
- a comparison of the different practices used by Member States to implement the Directives suggests that there is scope to improve the provision of information, simplify procedures and reduce the time taken to process applications and deliver permits;
- all stakeholders, including Member States, consider that the Directives “add value”, even though the harmonisation achieved so far is limited and the overall landscape remains fragmented;
- the main positive effects cited by stakeholders concern the “level playing field” harmonisation of conditions of entry and residence, procedures and rights for certain categories of third country nationals, simplified administrative procedures, greater legal certainty and predictability, and improved recognition of the right of third country nationals to be treated equally; and
- intra-EU mobility provides the clearest demonstration of EU added value as the EU labour market is more attractive for third country nationals than the labour market of individual Member States and “no national migration policy has ever provided facilitations for applications from third country nationals residing in another Member State”.169
17.8The European Commission concludes that the EU legal migration Directives are “largely fit for purpose” but that “there is clearly room for further harmonisation and simplification at EU level”. It recognises that further change will depend on Member States’ willingness to relinquish some of the discretion they currently enjoy under the existing Directives.170 It also highlights a need to take into account external factors, such as climate change, which are likely to affect migration flows to the EU in the future, as well as the potential to offer legal pathways to the EU as a means of securing third country cooperation in managing these flows.
17.9The European Commission says it will consider proposing legislative changes to “simplify, streamline, complete and generally improve EU legislation”.171 Meanwhile, it intends to press on with its proposed reform of the EU Blue Card Directive, ensure that the Directives are properly applied and enforced, raise awareness of the existence of EU legal migration rules and the rights they confer, provide (non-binding) guidance to assist Member States in applying the rules, improve the collection of data on legal migration and promote information-sharing and cooperation between Member States to facilitate movement between them.
17.10In her Explanatory Memorandum of 9 May 2019, the Immigration Minister (Rt Hon. Caroline Nokes MP) says that the recommendations and follow-up proposed by the European Commission will not have any impact on the UK’s domestic immigration policy but acknowledges that the EU legal migration Directives may well apply to UK nationals seeking admission to an EU Member State post-exit:
When the UK leaves the EU it will become a third country for EU migration purposes and, subject to any separate mobility arrangements agreed between the UK and the EU, its nationals subject to the measures which make up the EU’s acquis on legal migration. Any changes that are made to the Directives which enhance the treatment of third-country nationals in respect of entry and stay procedures and rights will have potentially positive consequences for UK nationals seeking admission to the territory of the EU once the UK is no longer a member of the EU. The UK will therefore have an ongoing interest in the evolution of the EU legal migration acquis and future assessments of its fitness.
17.11The Minister refers us to the Government’s White Paper published in July 2018, The Future Relationship between the United Kingdom and the European Union, which sets out its approach to future mobility arrangements between the EU and the UK post-exit.
Our Conclusions
17.12Whilst the Government has indicated that it would like to negotiate a new “framework for mobility” with the EU post-exit to support “a new and deep trade deal”, it has also made clear that any future mobility arrangements must be consistent with the ending of free movement, respect the UK’s control of its borders and the Government’s objective to reduce net migration.172 These conditions would rule out the continuation of arrangements which approximate those underpinning existing EU free movement rules. Instead, UK nationals intending to live, work or study in an EU Member State (other than Ireland and Denmark) after the UK leaves the EU and any post-exit transition period has ended are likely to be subject to a wide array of EU and national laws regulating the admission and treatment of third country nationals. Understanding the complex interplay between these laws, the rights they confer and how they can be enforced will be a significant challenge for UK nationals moving to an EU country post-exit/transition.
17.13The challenges include:
- the absence of a single, comprehensive and coherent framework of rules applicable to third country nationals—the co-existence of national and EU laws on legal migration makes it difficult to determine which laws apply and, where there are parallel EU and national rules, which are more beneficial;
- fragmentation in the application of EU laws—even where EU law does apply, Member States have considerable discretion in how they choose to apply it, creating additional complexity and legal uncertainty; and
- ineffective application of EU law—legal and practical barriers continue to impede mobility within the EU, despite specific provisions on intra-EU mobility contained in some of the EU legal migration Directives.
17.14The European Commission is keen to address these challenges by proposing legislative changes to “simplify, streamline, complete and generally improve EU legislation”.173 As the Minister acknowledges, changes which “enhance the treatment of third country nationals in respect of entry and stay procedures and rights will have potentially positive consequences for UK nationals seeking admission to the territory of the EU once the UK is no longer a member of the EU”.174 Whilst true, we think it prudent to inject a note of caution. First, migration is high on the political agenda in many Member States and the “narratives” surrounding it focus more on prevention or reduction rather than liberalisation. This may produce negotiating outcomes on the entry, residence and rights of third country nationals which are more rather than less restrictive. Second, EU legal migration laws are non-reciprocal. Where they apply, Member States are not entitled to treat certain third country nationals less favourably because their country of origin does not provide similar rights for EU citizens wishing to live, work or study there. Introducing an element of reciprocity would, as the European Commission observes, “require a fundamental change” of approach but nor can it be excluded.175 In developing its own policies on the legal migration of EU citizens to the UK after Brexit, the Government will therefore need to be mindful of how they are perceived by EU Member States and the possibility that they may seek to replicate any less favourable treatment in their own domestic laws and in EU law.
17.15We draw the European Commission’s “fitness check” of EU law on legal migration to the attention of the Home Affairs Committee, along with our observations on its possible implications for UK nationals in the context of Brexit. As any further EU action based on the findings set out in the Commission Staff Working Document will be subject to scrutiny, we are content to clear the document from scrutiny.
Full details of the documents
Commission Staff Working Document: Fitness Check on EU legislation on legal migration: (40531), 8097/19 + ADD 1 and ADD 2, SWD(19) 1055.
Previous Committee Reports
None.
158 EU law recognises that third country nationals and EU citizens may be treated differently, but any difference must be justified by a legitimate objective and be proportionate. See p.52 of the Commission Staff Working Document.
159 See pp.9–10 of the Commission Staff Working Document.
160 The main elements of the Common Travel Area are set out in a Memorandum of Understanding agreed by the UK and Irish Governments in May 2019.
161 Under Part 2 of the draft EU/UK Withdrawal Agreement, the rights of EU citizens resident in the UK and UK nationals in the EU27 acquired before the end of a post-exit transition period will continue to be protected.
162 Article 79(5) TFEU provides that the EU’s common immigration policy “shall not affect the right of Member States to determine volumes of admission of third-country nationals coming from third countries to their territory in order to seek work, whether employed or self-employed”.
163 See pp.16 and 31 of the Commission Staff Working Document.
164 The European Commission estimates that there are around 50 “may” clauses in the Directives.
165 See p.19 of the Commission Staff Working Document.
166 Similarly, EU citizens who have not exercised their free movement rights under the EU Treaties and are subject only to national immigration law may find it harder to be joined by third country family members than those who have exercised their Treaty rights.
167 See p.3 of the Commission Staff Working Document.
168 The European Commission recognises also that the external dimension of legal migration (developing legal pathways to the EU) “has always been (and is likely, for the foreseeable future, to remain) difficult to develop and implement” given that Member States alone determine how many economic migrants they wish to admit.
169 See p.97 of the Commission Staff Working Document.
170 See pp.96 and 98 of the Commission Staff Working Document.
171 See p.105 of the Commission Staff Working Document.
172 See the Government’s White Paper published in July 2018, The Future Relationship between the United Kingdom and the European Union, Command Paper 9593.
173 See p.105 of the Commission Staff Working Document.
174 See para 37 of the Minister’s Explanatory Memorandum.
175 See pp.60–1 of the Commission Staff Working Document.
Published: 11 June 2019