INCEPTION IMPACT ASSESSMENT

Title of the initiative

Single permit for third-country nationals to reside and work in the EU

Lead DG – responsible unit – AP Number

DG HOME (C2)

Likely Type of initiative

Legislative initiative - Directive

Indicative Planning

Q4 2021

Additional Information

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This Inception Impact Assessment is provided for information purposes only and can be subject to change. It does not prejudge the final decision of the Commission on whether this initiative will be pursued or on its final content and structure.

A. Context, Problem definition and Subsidiarity Check

Context

 The Single Permit Directive 1  has two main objectives. The first is to facilitate the procedure for a third-country national to be admitted for work in a Member State by introducing a single application procedure for a single permit (a combined work and residence permit), including a number of safeguards in the application procedure. The second main objective is to ensure equal treatment between third-country workers and nationals of the Member State of residence, by providing a common set of rights for third-country workers in areas such as working conditions, education and training, access to goods and services, and social security.

In 2019, the Commission published the first implementation report of the Single Permit Directive, highlighting the main problems in the implementation of the Directive by the EU Member States. Furthermore, in 2019, the Commission finalised a Fitness check on EU legal migration legislation, an evaluation of existing laws in this field. This evaluation identified a number of inherent shortcomings in the EU legal framework, including in the Single Permit Directive. To address these shortcomings, the Commission’s 2020 New Pact on Migration and Asylum announced a number of new initiatives, including a review of the Single Permit Directive. This initiative has been included in Annex II of the 2021 Commission work programme.

Problem the initiative aims to tackle

There are several problems in the implementation and functioning of the Single Permit Directive, as highlighted in the above-mentioned fitness check and implementation report. In addition, numerous complaints from citizens have been received and infringement procedures have been launched. These problems can be categorised as ‘regulatory failures’, as the existing Directive has failed to solve some of the problems that it was supposed to solve at the time of adoption. As a result, the revision of the Single Permit Directive has been included in the REFIT initiatives of the Commission work programme for 2021. The following main problems have been identified:

·The definition of "third-country worker", as a third-country national who is allowed to work but does not necessarily work has proven to be difficult to transpose and implement in many Member States. 

·The personal scope of the Directive (the categories of third-country nationals to whom the Directive applies) is very fragmented, with numerous exceptions that are difficult to implement. As a rule, the Directive covers all third-country workers, but with many exceptions. It is also inconsistent with other Directives covering other categories of third-country nationals.

·The single application procedure does not ensure efficient coordination of the different administrative steps and authorities involved, including with relation to the entry visa and labour markets tests. In particular, the interaction with the national visa procedures sometimes undermines the simplification objective of the single application procedure. In particular, the procedure for applying for an initial ‘entry visa’ (as required by the majority of Member States that do not issue residence permits outside their territory) is outside the scope of the Single Permit Directive. As a result, visa requirements can duplicate administrative checks and the submission of documents, de facto extending the overall time needed to obtain the permit. A number of Member States have additional administrative procedures (e.g. ‘labour market authorisations’ or obligations to register with local, tax and social security authorities) that can undermine the simplification objective in some cases.

·The equal treatment provisions that grant single permit holders a set of rights in a number of areas are incoherent. They include numerous exceptions and are difficult to interpret and implement, which undermines the objective of granting fair treatment and facilitating the integration of third-country workers.

·The Directive provides insufficient protection against exploitation of third-country workers. In particular, Member States are allowed to link the single permit with one specific employer, which can make the permit holder too dependent on the employer and more likely to be victim of labour exploitation. Furthermore, the Directive has no provisions on sanctions or inspections for compliance with equal treatment provisions.

·The Single Permit Directive regulates the application procedure and the right to equal treatment for most low and medium skilled workers, but not their admission conditions. As a result, there are no coordinated rules at EU level on attracting low and medium skilled third-country workers 2 in key sectors for the future of the EU economy, such as agriculture, manufacturing, construction, health care, and domestic care. Significant labour shortages are expected in these sectors in the coming years. 

Basis for the EU intervention (legal basis and Subsidiarity check)

The legal basis for EU intervention in the area is established in Article 79(2) TFEU 3 :

The principle of subsidiarity applies since legal migration is an area of shared competence. The need for a common EU framework on legal migration is linked to the abolition of internal border controls within the EU and the creation of the Schengen area. In this context, the migration policies and decisions of one Member State affect other Member States, so it is deemed necessary to have a set of common EU rules in relation to the conditions and procedures for allowing third-country nationals to enter and reside in the EU, and to lay down their rights following admission.

Nevertheless, any measure proposed will respect the competence of the Member States to determine the numbers of third-country nationals seeking access to the EU for work purposes, including by means of national quotas (i.e. volumes of admission). 

B. Objectives and Policy options

The initiative aims to achieve the improvement of the functioning and implementation of the Single Permit Directive, as announced in the New Pact on Migration and Asylum.

The main objectives, as announced in the New Pact, are:

(1)to find the best way to further simplify, clarify and streamline the personal scope, procedures and rights set out in the Directive;

(2)to explore the possibility of introducing admission conditions that would apply to all low and medium skilled third-country workers, and of measures to prevent and fight labour exploitation of third-country workers. 

The baseline scenario is the existing Directive adopted in 2011, and its implementation by the Member States as reported in the Commission implementation report of 2019.

The following policy options will be considered to achieve the above mentioned objectives:

Option 1: Improve the implementation of the Directive without a legislative amendment, with the Commission issuing guidelines addressed to Member States authorities, third-country nationals, and legal practitioners;

Option 2: Simplify the application procedure (e.g. by ensuring a coordination of the different authorities involved, and including the entry visa in the single application), clarify the personal scope, and improve the equal treatment framework (without adding admission conditions or prevention of exploitation measures).

Option 3: Introduce in the Directive harmonised admission conditions for low and medium skilled third-country workers, and measures to prevent and fight their labour exploitation, such as sanctions to employers and monitoring mechanism for the compliance of equal treatment rights (in addition to the elements outlined in option 2).

The different options are preliminary and non-exhaustive, and will be assessed based on a cost-benefit analysis. The possible outcome of such analysis might consist in recommending a combination of the above options. In particular, the analysis will take into account the proportionality of the different options, to assess what elements of each is strictly necessary to solve the above-mentioned problems.

C. Preliminary Assessment of Expected Impacts

Likely economic impacts

The proposed policy options are quite different in scope and nature. In addition, the potential outcome of the review may be a combination of options. Therefore, the expected impacts of all options and their significance cannot be assessed fully at this stage. However, the options are likely to have an impact on:

·Growth and employment: an improved framework for managing low and medium skilled migration for employment purposes may have a positive impact on economic growth and, specifically, in filling labour shortages, by creating a greater pool of labour to meet labour market needs.

·Rationalisation of application procedures: savings at administrative level due to simplified procedures and simplified documentation to be handled. Simpler and faster procedures may lead to time and cost savings for national administrations as well as employers, increasing their competitiveness.

Likely social impacts

The introduction of measures to fight labour exploitation of third-country workers, as well as the reinforcement of their rights would improve the social status of third-country workers as valued members of European society, therefore contributing to their integration and social inclusion.

A fairer treatment of third-country workers would also have a positive impact on national workers, as it would reduce the risk of ‘social dumping’ (i.e. third-country workers being considered as a cheaper workforce compared to the local workers).

Likely environmental impacts

The initiative is not expected to have specific environmental impacts.

Likely impacts on fundamental rights

The initiative aims to grant all third-country workers improved equal treatment and opportunities, in all main areas of life: work, education and training, social protection, access to goods and services, including housing, and increased protection from potentially severe abuses and exploitation.

Likely impacts simplification and/or administrative burden

The initiative aims to simplify the application procedures for a large number of residence and work permits in the EU, and therefore to reduce unnecessary administrative burdens for third-country applicants, their employers, and national migration authorities.

An Impact Assessment will support the preparation of this initiative and inform the Commission decision. The impact assessment will benefit from the evidence and data collected recently in the context of the implementation report of the Directive and the Fitness check on the EU legal migration policy. The Commission will prepare the Impact assessment in the first half of 2021.

Evidence base and data collection

As noted above, in 2019 the Commission published the first implementation report of the Single Permit Directive, highlighting the main problems in the implementation of the Directive by the EU Member States. Furthermore, in 2019, the Commission finalised a Fitness check on the EU legal migration policy, an evaluation of the overall EU legislation in this field, which includes a large evidence base on the Single Permit Directive.

A study undertaken by an external consultant will feed into this impact assessment. The research team will be asked to collect further evidence.

Consultation of citizens and stakeholders

In the context of the Fitness Check on legal migration, an extensive consultation took place in 2017-2019, including a broad public consultation. The replies to this consultation give a very comprehensive overview of the main problems in the functioning and implementation of the legal migration acquis, including the Single Permit Directive, therefore they will contribute to the problem definition of the impact assessment.

Moreover, a new public consultation on the future of legal migration was launched on 23 September 2020, together with the New Pact on Migration and Asylum. It remains open until 30 December 2020 and is being promoted by the Commission vis-à-vis its main stakeholders (e.g. through ongoing social media activities). This public consultation aims to identify areas where the EU framework on legal migration could be further improved, including the Single Permit directive. It will therefore contribute to define the policy options for the improvement of the Single permit Directive and provide hints on possible impacts.

Finally, there will be a targeted consultation of all main stakeholders in the area of legal migration, with dedicated meetings. This is an indicative list of the stakeholders that will be directly consulted:

-    Contact Group on Legal migration (Member States’ representatives)

-    European Parliament Committee on Civil Liberties, Justice and Home Affairs

-    European Economic and Social Committee and Committee of the Regions

-    Legal migration practitioners’ network

-    Expert Group on Economic Migration

-    Networks of Civil Society NGOs working at EU level

-    Social and economic partners

-    Fundamental Rights Agency

-    OECD

-    European Migration Network

-    European Network of Public Employment Services

A synopsis report (a summary of all consultation activities' results) will be published on the website of the European Commission (DG HOME) once all consultation activities are closed.

Will an Implementation plan be established?

An implementation plan will be established through the initiative to help the Member State authorities to implement the chosen policy option.