17.11.2005   

EN

Official Journal of the European Union

C 286/20

1.1

Although five years have passed since the Tampere European Council acted upon the mandate of the Treaty of Amsterdam, the goal — to give the European Union a common immigration and asylum policy — has not been achieved. Some progress has been made and the Commission has drafted numerous political and legislative proposals, but these have not been adequately discussed by the Council. The EESC has worked with the Commission and has drawn up a number of opinions aimed at contributing to a real common policy and harmonised legislation in the field of migration.

1.2

Today we are in a new situation. The Hague Programme adopted in November 2004 sets out to develop immigration and asylum policies over the coming years. The Programme also falls within the scope of the Constitutional Treaty, strengthening the commitment to a future common immigration policy in Europe. (1)

1.3

The Commission's Green Paper covers the central theme of immigration policy: the conditions for admitting economic migrants and the means of managing these migratory flows. Admission laws form the hard core of immigration policy. At present, only national laws exist, which differ greatly from one another and are, in most cases, restrictive.

1.4

Over three years have passed since the Commission drew up its Proposal for a Council Directive on the conditions of entry and residence of third-country nationals for the purpose of paid employment and self-employed economic activities. (2) The EESC and the Parliament issued Opinions (3) supporting the proposal. However, the proposal did not make it past the first reading by the Council. Since then, some Member States have drawn up new laws on economic migrants and immigration-related matters have become hot topics on many political agendas.

1.5

The Thessaloniki European Council of 19-20 June 2003 stressed ‘the need to explore legal means for third country nationals to migrate to the Union, taking into account the reception capacities of the Member States’ (4). In its Opinion on Immigration, integration and employment (5), the EESC stressed the urgent need for the EU to have an active policy for economic migration, and harmonised legislation. Demographic trends in the EU (6) and the Lisbon Strategy mean that Europe will need to adopt active policies for admitting economic migrants, whether they be highly skilled or less skilled workers. Although each country has its own needs and specifics, the opening of channels for economic migration is a characteristic common to all Member States.

1.6

What is more, the citizens of the new Member States are temporarily restricted in their right to freedom of residency and work, which is an anomaly. The EESC hopes that this restriction can soon be removed. During the transitional phase, citizens of the new Member States should have the right to preferential treatment.

1.7

The EESC is concerned to note the political difficulties surrounding immigration policy, and the negative reaction from certain sectors of the public and media. Political and opinion leaders must stop using racist and xenophobic language in debates, and must act with due responsibility and political concern to educate the public.

1.8

In the debate on this Green Paper, all sides must strive to set aside the many prejudices and fears that labour migration currently inspires. The EESC wishes to make a conscientious, rational contribution to this debate.

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To what extent should a European policy on labour migration be developed and what should be the level of Community intervention on this issue?

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Should a European migration law aim at providing a comprehensive legal framework covering almost any third country national coming to the EU or should it focus on specific groups of immigrants?

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Were the sectoral legislative approach to be chosen, which groups of migrants should be addressed as a priority and why?

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Do you consider that other approaches — such as a European fast track procedure — should be explored? Could you propose other options?

2.1.1

The EESC states that it is indeed necessary for the admission of economic migrants to be regulated at EU level; to ensure this, there must be a high degree of legislative harmonisation, as set out in the draft Constitutional Treaty. In previous Opinions, (7) the EESC has already called for the EU to rapidly develop a common immigration policy and harmonised legislation. The European Union and the Member States need an open form of legislation that allows labour immigration through channels that are legal and transparent, for both highly skilled workers and those working in less skilled jobs.

2.1.2

The Constitutional Treaty sets the limits for common immigration legislation: ‘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.’ (8) The EESC believes that this limit does not prevent the Union from reaching a high degree of legislative harmonisation for the admission of economic migrants, which could be achieved gradually in order to allow Member States time to adapt.

2.1.3

In line with the Commission's proposal, the EESC believes that an overall (horizontal) legislative framework is preferable to sectoral legislative proposals. The legislative proposal submitted by the Commission received the support of the EESC. It included the conditions for entry and residency of migrants working in paid employment, self-employment or other economic activities for over three months in the territory of a Member State. Additionally, specific rules could be drawn up for particular situations such as seasonal workers, workers transferred within a company, service providers, etc.

2.1.4

If the European Council were to opt for a sectoral approach (geared towards highly skilled migrants), it would be discriminatory in nature. This might be easier for the Council, but it moves away from the provisions of the Constitutional Treaty.

2.1.5

Moreover, even though most national laws deny entry to high and low-skilled workers, illegal immigration, the informal economy and undeclared work are still on the increase. (9) As the EESC made clear in its Opinion, (10) in some Member States there is a clear link between the lack of legal channels for economic migration and the increase in illegal migration.

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How can we ensure that the principle of ‘Community preference’ is applied in an effective way?

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Is the existing definition of Community preference still relevant? If not, how should it be changed?

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To which other economic migrants (apart from intra-corporate transfers of key personnel) might the logic of Community preference not apply?

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Apart from long-term residents, which categories of third-country nationals — if any — should be given preference over newly arriving third-country workers?

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Should a priority right — subject to precise conditions — be granted to third-country nationals who have temporarily left the EU after having worked there for a given period?

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Would facilitating mobility of third country workers from one Member State to another be beneficial for the EU economy and national labour markets? How could this be put in to practice in an effective way? With which limitations/facilitations?

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How can the European Public Employment Services (PES) and the EURES Job Mobility Portal contribute to facilitating labour migration of third-country workers?

2.2.1

The directives to combat discrimination in the marketplace must be observed in the new European immigration legislation.

2.2.2

The principle of Community preference should apply to all individuals belonging to the EU labour market, not just national or Community workers. (11) The EESC believes that the principle of Community preference should extend to:

2.2.3

Promoting the mobility of migrants between the country of origin and the host country is positive for the economic and social development of the country of origin, and it will prevent some migrants from finding themselves in illegal situations; the EESC therefore believes that if the right to preferential treatment is to be introduced and implemented, it should be extended to third-country nationals who have temporarily left the EU, having worked there for a set period of time, if intending to migrate again.

2.2.4

All the reports analysing the problems of the labour market in Europe highlight the low mobility of workers. Promoting mobility is one of the objectives of the European employment strategy. Clearly, migrants can greatly help to improve mobility between Europe's labour markets. Once a high degree of harmonisation has been reached in immigration law, mobility and common management of migratory flows will become easier.

2.2.5

The EURES network coordinates Member States' public employment services, with the aim of covering existing jobs by encouraging mobility between European workers. This network is an important tool for effective management of the EU labour market and the new migratory flows. To aid the management of migration flows, the EURES network should effectively link labour supply and demand in Member States, and should include migrant workers in the system, as they tend to be more mobile.

2.2.6

In the future, the EURES network could also play a major role in helping Member States' consular services to manage new migration in the countries of origin. A system could be set up whereby a vacancy, if not filled by the EU labour market within a maximum of 60 days, could be opened to applicants in the country of origin via the consular services, who would need to employ staff specialised in the labour market and labour migration. The EU delegations could also inform interested parties of the opportunities existing in the EURES network.

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Should the admission of third-country nationals to the EU labour market only be conditional on a concrete job vacancy or should there also be the possibility for Member States to admit third-countries nationals without such a condition?

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What procedure should apply to economic migrants who do not enter the labour market?

2.3.1

In its Opinion (14) on the proposal for a Directive on admission, the EESC pointed out that there should be two systems for legally admitting migrants:

2.3.2

A high proportion of economic migration can be channelled by providing job offers while the migrant is in the country of origin. This is the most suitable system for specialised and seasonal workers, and is used by major companies and associations able to recruit workers in their countries of origin.

2.3.3

However, small businesses, craft industries, domestic service and care for dependent persons form a part of the labour market which recruits from the migrant population. In such cases it is impossible for the employer and the migrant worker to have prior knowledge of one another in the country of origin. In some countries, such jobs are filled via the black economy and illegal immigration. In the abovementioned Opinion, (15) the EESC proposed that Community legislation for legal admission of migrants should include a temporary residence permit for seeking work. It would be valid for six months, and would be managed by each Member State in cooperation with the social partners.

2.3.4

The economic needs test or a specific job vacancy is necessary for managing new migration. This system will make it possible to offer the migrant the job in the country of origin, so that most migration will be channelled through this procedure.

2.3.5

The system requires the EURES network to operate properly and the consular services to have specialised staff. The period over which a job vacancy published throughout the EU should be open to new migrants must be short, i.e. 1-2 months. If the system is prolonged, the employer could find the system inefficient.

2.3.6

It is always advisable for these systems to be managed flexibly, since the European labour markets do not display great mobility. Mobility is higher in more highly skilled, better paid jobs. However, mobility is low in the majority of jobs, even within a single country. For many economic activities and occupations, the labour market is actually highly segmented, giving rise to a number of different markets.

2.3.7

On the expiry of a work permit that has enabled an immigrant to be legally admitted, if the work contract is renewed, there should not be any need to repeat the economic needs test. If the person is registered as a job-seeker with the public employment service of the country of residence, then the economic needs test should not be required either.

2.3.8

The Member States' authorities, in cooperation with the social partners, might consider that for some occupations, sectors or specific regions, the labour market should be opened up to migration without testing economic needs. For these flexible systems, various procedures could be implemented, such as temporary job seekers' permits, green cards or quotas (if these have been established in agreements with third countries).

2.3.9

Migrants admitted with a job seeker's permit would have a defined period in which to seek work. The EESC has proposed a period of six months, and in the British system a period of one year is granted. These people should have medical insurance and sufficient financial resources.

2.3.10

In order to create a flexible fast-track selection system in the EU for admitting economic migrants, could be required to fill in a form providing information such as their years of professional experience, qualifications, language skills, relatives in the EU, etc. Each Member State could use this system in line with its requirements. Employers could consult job seekers' CVs via the EURES network. The admission criteria should be based on this information, avoiding any kind of discrimination.

2.3.11

Member States, in cooperation with the social partners, would decide whether to admit migrants with a temporary job seekers' permit. The public employment services would work with job seekers in their search for employment.

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Should the EU have common rules for the admission of self-employed third-country nationals? If yes, under which conditions?

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Should more flexible procedures be possible for self-employed persons who wish to enter the EU for less than one year to fulfil a specific contract with an EU client? If so, which?

2.4.1

The EESC agrees that the EU should have common legislation with a high degree of harmonisation for the admission of third-country nationals to work in self-employed activities. In its Opinion (16) on the proposal for a Directive on admission, the EESC expressed its support and made several proposals for improvement.

2.4.2

A specific law could be drawn up, or the Directive itself could include both self-employed workers and workers in paid employment, as proposed by the Commission.

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Should there be a combined ‘work-residence permit’ at EU level? What are its advantages/disadvantages?

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Or should a single application (for both work and residence permits) be proposed?

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Are there other options?

2.5.1

The relationship between residence and work permits shows clear differences in the various Member States. The EESC believes that harmonised legislation is needed for the EU. The authority responsible for issuing permits would be that of each Member State. Permits granted by a Member State should be recognised as such in the rest of the EU.

2.5.2

The EESC recommends that the legislation keep bureaucracy to a minimum and make things easy for the persons concerned, i.e. the migrants, employers and authorities. It would be advisable to have a single permit, namely, the residence permit, which would be combined with a work permit.

2.5.3

A ‘one-stop-shop’ system would simplify the current procedures.

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Should there be limitations to the mobility of the third-country worker inside the labour market of the Member State of residence? If so, which (employer, sector, region, etc.), under what circumstances and for how long?

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Who should be the holder of the permit? The employer, the employee, or should it be held jointly?

2.6.1

The permit-holder must always be the worker.

2.6.2

Member States should ensure that, when a person has obtained a residence permit on the basis of a job offer from a company, that company immediately fulfils the employment registration requirements for this worker, and registers him or her with the social security system. The first step in this person's career in the Member State which granted the residence permit must be made with the company which offered the job. However, afterwards, the worker should be able to change company without sectoral or regional restrictions.

2.6.3

Nonetheless, it would be desirable for any change of company to be notified to the authorities issuing the permit, at least during the first year of validity. This would act as a check-up system to detect potential fraud by fake companies set up to facilitate immigration.

2.6.4

The immigrant employee, in line with national labour laws, should inform the employer of his departure from the company in advance.

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What specific rights should be granted to third-country nationals working temporarily in the EU?

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Should the enjoyment of certain rights be conditioned to a minimum stay? If so, which rights and for how long?

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Should there be incentives — e.g. better conditions for family reunification or for obtaining the status of long term resident –to attract certain categories of third-country workers? If yes, why and which ones?

2.7.1

The starting point for this debate must be the principle of non-discrimination. Migrant workers, whatever the period for which they are authorised to reside and work, must have the same economic, labour and social rights as other workers.

2.7.2

The right to family reunification is a fundamental one; however, it is not properly protected by the EU directive, or by some national laws (17). The EESC calls on the Commission to adopt a new legislative initiative focusing on the proposals of the European Parliament and the EESC (18). The right to family reunification, which is a fundamental human right, should apply equally to all third-country nationals, without one group of migrants being given priority over another.

2.7.3

The Commission's Green Paper does not address the obligations that immigrants should fulfil. The EESC believes that everyone — EU and non-EU citizens alike — have a duty to obey the laws of the country they reside in.

2.7.4

The Constitutional Treaty's Charter of Fundamental Rights must be adhered to when drawing up Community legislation on immigration, as certain national laws currently in force contain provisions that run counter to the Charter.

2.7.5

The EESC agrees with the Commission that certain rights depend on the duration of residency. Rights for those with temporary residency will be different from those with long-term resident status. In specific terms, the EESC proposes a series of rights that should be granted to third-country nationals temporarily and legally working and residing within the EU:

2.7.6

The Directive on the Status of third-country nationals who are long-term residents mentions some specific rights for these individuals, particularly regarding the stability of their right to residency and the possibility of free movement and residency in other EU Member States. In its Opinion, (20) the EESC expressed its position on new rights. The most important of these are the political and civil rights. In the abovementioned Opinion, the EESC proposed that long-term residents be granted the right to vote in municipal and European elections, like EU nationals. The EESC also adopted an own-initiative opinion (21) calling upon the Convention ‘to provide a new criterion for granting Union citizenship: citizenship should be linked not only to nationality of a Member State, but also to stable residence in the Union’ and for citizenship of the Union to‘be granted not only to nationals of the Member States but to all persons who reside on a stable or long-term basis in the European Union’. The EESC proposes that the Commission adopt new initiatives geared towards this objective.

2.7.7

In 2004, the EESC also adopted an own-initiative Opinion (22) proposing that the European Union and the Member States ratify the International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families, adopted by the General Assembly of the United Nations in 1990, (23) with the aim of promoting migrant workers' fundamental rights not only in European but worldwide. The EESC proposes that the Commission adopt new initiatives for the ratification of the Convention.

2.7.8

The EU should ensure that immigration legislation meets ILO standards.

2.7.9

Equality between men and women, which is enshrined in the Community acquis, should be guaranteed under immigration legislation. All Community legislation combating discrimination should also be guaranteed.

2.7.10

The EESC does not recommend incorporating discriminatory criteria into the fundamental rights in order to attract certain specific migrant categories.

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What kind of accompanying measures should be envisaged to facilitate admission and integration of economic migrants, both in the EU and in the countries of origin?

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In line with EU development policies, what could the EU do to encourage brain circulation and address the potentially adverse effects of brain drain?

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Should developing countries be compensated (by whom and how) for their investment in human capital leaving for the EU? How can negative effects be limited?

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Should host and home countries have an obligation to ensure the return of temporary economic migrants? If so, in what circumstances?

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How can return be managed for the mutual benefit of host and home countries?

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Should a preference in terms of admission be granted to certain third countries and how?

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Could such preferences be linked to special frameworks, such as the European Neighbourhood Policy, pre-enlargement strategies?

2.8.1

Cooperation with countries of origin must be fundamental to the European policy for admitting workers and managing migratory flows. Their interests — and not just European interests — should be taken into account. The EU must not contribute to creating further obstacles to development. If people from developing countries emigrate to Europe, this should contribute to the economic and social development of these countries.

2.8.2

Some European governments are keen to have the cooperation of the countries of origin in combating illegal immigration, maintaining border controls and returning deportees. The EESC has expressed the opinion (24) that this cooperation must be extended, covering the overall management of migratory flows.

2.8.3

As mentioned in the Green Paper, brain drain is a strong negative factor for countries of origin, because they do not receive any return on the investment they make in training. Moreover, current European policies for recruiting qualified workers may exacerbate this problem considerably. It is therefore important to set up compensation policies for the losses suffered by these countries. The EU must significantly increase investment in cooperation and development programmes that include funding for education and training and research activities in the countries of origin. For example, the EU should target investment in a practical way to facilitate economic and social development by increasing the number of training places in third countries that produce qualified workers, such as teachers, nurses, doctors and engineers. Many third countries restrict the number of training places due to lack of resources with the result that many of their nationals that meet the entry requirements have to wait a long time for a place in the teaching institution. Increasing the number of training places should reduce the impact of the brain drain. Europe must also be more generous in trade negotiations.

2.8.4

Voluntary return to the country of origin should be facilitated for workers able to contribute to development through their professional skills or entrepreneurship. It would therefore be important to improve the possibilities offered by the directive as regards the rights of long-term residents to return temporarily to their country of origin. Residents (nationals of a third country) wishing to return to their country of origin with a work or investment project should not lose the right to residency. ‘Brain circulation’ between home and EU countries will only be possible if European legislation is flexible.

2.8.5

Brain circulation could also be facilitated by encouraging member state nationals of dual heritage to return to their parent's/grandparent's country of origin with a work or investment project of fixed duration.

2.8.6

European cooperation programmes should promote investment projects involving professionals or investors from the country of origin, particularly those who have returned from abroad. Funding should be given to investment projects set up by individuals residing in the EU but wishing to return, even temporarily, to their country of origin.

2.8.7

In its Opinion (25) on the Community return policy and the Opinion (26) on the Green Paper, the Committee shared its views on how voluntary return could contribute to the economic and social development of the countries of origin.

2.8.8

The management of migration in cooperation with countries of origin should be improved. In countries with a high number of migrants, the consular services of the Member States should have specialised staff. The EU delegations in these countries could also cooperate more actively.

2.8.9

The EU could draw up preferential agreements with candidate countries.

2.8.10

Also, in the cooperation agreements that the EU has reached with countries and regional groupings, there could be preferential conditions for access to migration, avoiding any ethnic or cultural discrimination.

2.8.11

Lastly, the EESC reiterates its proposal for integration to be incorporated into European migration policies. The Committee has made many proposals in various Opinions (27) and at the Conference (28) held in 2002. The European Union should draw up a European programme for integration with adequate resources under the new financial perspectives. The EESC will work with the Commission to draw up such a programme. The Green Paper should make reference to all relevant international and European treaties and conventions (29).

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Migration for Employment Convention (revised), 1949 (No. 97)

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Migration for Employment Recommendation (revised), 1949 (No. 86)

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Migrant Workers (Supplementary Provisions) Convention, 1975 (No. 143)

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Migrant Workers Recommendation, 1975 (No. 151)

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Articles 24 and 26 of the ILO Constitution

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Resolution concerning a fair deal for migrant workers in a global economy, June 2004

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European Social Charter, 1961 (No. 35) and Revised European Social Charter, 1996 (No. 163)

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European Convention on the legal status of Migrant Workers, 1977 (No. 93)

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The EU Charter of fundamental rights, 2000 (Part II of the Constitutional Treaty, 2004)

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Declaration on the Human Rights of Individuals who are not Nationals of the country in which they live, 1985

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International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, 1990 No. 158).