Limitations on the admission of third-country nationals for employment

1) OBJECTIVE

To establish principles governing Member States' policies of admission of third-country nationals to their territories for employment.

2) ACT

Council Resolution of 20 June 1994 on limitations on admission of third-country nationals to the territory of the Member States for employment [Official Journal C 274 of 19.09.1996].

3) SUMMARY

Current limitations are to be maintained or, where necessary, tightened up in accordance with the report on immigration and asylum policy adopted by the European Council in Maastricht in December 1991, which gave priority to the harmonisation of policies on admission.

While acknowledging the contribution of migrant workers to the economic development of their respective host countries, the Council notes that at present no Member State is pursuing an active immigration policy, which is why temporary admission for employment may be considered only in exceptional circumstances. Present high levels of unemployment increase the need to ensure that job vacancies are filled as far as possible by Community nationals or nationals of EFTA countries which are parties to the EEA agreement.

The Council consequently resolves that the principles set out below should not be relaxed by Member States in their national legislation or in any subsequent revisions of their national legislation. They should bring their national legislation into line with these principles by 1 January 1996, although the principles are not legally binding on them and do not afford grounds for proceedings by individual workers or employers.

Member States' policies are to observe the principles set out below governing:

• admission criteria;
• admission procedures;
• period of admission;
• extension of stay;
• business visitors;
• third countries with close links with a Member State.

Admission criteria

Member States will consider requests for admission to their territories for the purpose of employment only where vacancies in a Member State cannot be filled by national and Community manpower or by non-Community manpower lawfully resident on a permanent basis in that Member State. In this context they will apply the procedure laid down in Part II of Regulation No 1612/68 on the free movement of workers within the Community.

Third-country nationals may be admitted on a temporary basis, where:

• a job is offered to a named worker or named employee of a service provider and is of a special nature in view of the requirement of specialist qualifications (professional qualifications, experience, etc.);
• an employer offers vacancies to named workers and the competent authorities consider that the grounds adduced by the employer are justified in view of a temporary manpower shortage on the national or Community labour market which would significantly affect the operation of the business or the employer himself.

Admission procedure

Vacancies are offered to:

• seasonal workers in strictly controlled numbers for a specifically defined job;
• trainees;
• frontier workers;
• intra-corporate transferees, i.e. persons temporarily transferred by their company as key personnel.

Third-country nationals will not be admitted unless they have been given prior authorisation to take up employment. The authorisation may be in the form of a work permit issued to either the employer or the employee.

Third-country nationals must also be in possession of any necessary visa or residence permit.

Initial authorisation for employment will normally be restricted to employment in a specific job with a specified employer.

Period of admission

A seasonal worker will be admitted for a maximum of six months in any twelve-month period, and must remain outside the territories of the Member States for a period of at least six months before being readmitted for employment.

Trainees will be admitted for a maximum period of one year in the first instance. This period may be fixed at more than a year and extended exclusively for the time needed to obtain a professional qualification recognised by the Member State concerned in the sphere of their activity. Other third-country nationals admitted to the territories of the Member States for employment will be admitted for a period not exceeding four years in the first instance.

Extension of stay

A person already present in the territory of a Member State as a visitor or student will not in principle be permitted to extend his stay for the purpose of taking or seeking employment. Such persons must return to their own countries on conclusion of their visit or studies. In principle a person admitted as a trainee or service provider or employee of a service provider will not be permitted to extend his stay in authorised employment except in order to complete the training or activity under contract for which he was admitted.

A seasonal worker will not be permitted to extend his stay for the purpose of taking employment of a different type. An extension of the period of his stay may be authorised to allow him to complete the work for which the original authorisation was granted. However, the total length of his stay may not exceed six months in any twelve-month period. Other workers may be permitted to extend their period of stay in authorised employment, but only if they continue to satisfy the criteria originally applied to the decision on whether to admit them for authorised employment.

The Member States will examine the desirability of issuing a permanent residence permit to third-country nationals who have had restrictions on their employment lifted.

Business visitors

It is possible to admit as workers third-country nationals not residing in the territory of a Member State who are seeking entry to:

• negotiate for the supply of goods or services;
• deliver goods or assemble machinery manufactured in a third country as part of a supply contract, provided that such persons will be dealing only with businesses in the territory of the Member State and not with the general public and that any one visit and possibly the work permit does not exceed six months.

Third countries with close links with a Member State

A Member State may continue to admit third-country nationals to its territory for the purpose of employment pursuant to pre-existing arrangements. The Member States will undertake as soon as possible to renegotiate such arrangements in accordance with the terms of this resolution.

The resolution does not apply to:

• persons who have right of free movement under Community law and members of their families;
• third-country nationals who have been allowed admission for the purpose of family reunification;
• third-country nationals whose access to employment is covered by rights stemming from agreements governed by Community law concluded with third countries;
• persons undertaking casual work in the course of youth exchange or youth mobility schemes, including "au pairs";
• persons entering Member States in order to pursue economic activities as self-employed persons or to set up and/or manage a business/undertaking which they effectively control;
• applicants for asylum;
• third-country nationals admitted for asylum;
• displaced persons who are temporarily admitted;
• persons exceptionally allowed to stay on humanitarian grounds.

The annex contains definitions of the following terms: "trainees", "seasonal workers", "frontier workers" and "intra-corporate transferee".

Last updated: 12.07.2005