Convention on the admission of third-country nationals to the Member States of the European Union

1) OBJECTIVE

To give Member States common rules on immigration policy as regards the initial admission of third-country nationals to the territory of a Member State for employment purposes, independent economic activities, studies or training, family reunification, or for other purposes, and also as regards nationals of non-member countries who are long-term residents.

2) PROPOSAL

Proposal for a Council Act establishing the Convention on rules for the admission of third-country nationals to the Member States.

3) CONTENTS

Definitions of:

• "admission": permission for a third-country national to enter the territory of a Member State in order to reside there for longer than three months;
• "residence authorisation": the decision taken by a Member State, expressed in the form provided for by its national legislation, to permit a person to reside on its territory for more than three months; this does not include temporary authorisations which may be issued by Member States in certain cases.

This convention applies to third-country nationals, except where more favourable provisions apply under international, bilateral or multilateral agreements between third countries and the Community, between third countries, the Community and (a) Member State(s) which are already in force, or agreements between a Member State and a third country.

It does not apply to:

• asylum seekers where their status is covered by other specific instruments, in particular the Geneva Convention of 1951;
• displaced persons admitted by a Member State for temporary protection where their situation is, by definition, such that they are expected to return to their country of origin once the grounds for their admission no longer pertain;
• those authorised to stay for humanitarian reasons, whose admission is limited to the territory of one Member State and is granted soley by the decision of that Member State.

The initial application for admission to a Member State may be considered by the competent authorities in that State only if the applicant is resident outside the territory of the Member State when the application is submitted and remains so until informed of the Member State's decision regarding the application.

To enter the territory of the Member State to which they have been granted admission, third-country nationals must bear the necessary travel documents. If necessary the Member State must issue any visas required for this purpose.

Where necessary, other Member States must issue any transit visas necessary to enable such third-country nationals to travel to the Member State to which they have been granted admission.

All third-country nationals have the right to leave the Member State to which they have been admitted for the duration of statutory holidays and for an additional period (not exceeding thirteen weeks) for personal reasons.

They may also leave for an unlimited period if the reasons for so doing are the same as the reasons for which they were admitted.

When their residence authorisation expires, third-country nationals may apply for its renewal locally provided that they still meet the conditions upon which they were admitted.

Except in the cases provided for under point 13, residence authorisations may not be renewed locally for reasons other than those for which they were initially issued.

In the case of recognised long-term residents, the residence authorisation is no longer subject to a specific reason for admission, since it is accepted that they have the right to engage in any form of activity, to study, or to reside in the country for other reasons. In such cases residence authorisations may be renewed, even if for different reasons, without the persons concerned having to leave the territory of the Member States to submit a new application for admission.

Admission of a third-country national to the territory of a Member State for the purpose of paid employment may be granted where the post offered in the Member State cannot be filled in the short term:

• by a citizen of the European Union;
• by a third-country national who is legally resident in the Member State concerned;
• by a third-country national recognised as a long-term resident.

Admission for the purpose of independent economic activity means the entry of a natural person who is a third-country national into the territory of a Member State to engage in economic activity involving no subordinate relationship to an employer.

Third-country nationals wishing to establish themselves in a Member State to engage in independent economic activity may be admitted, subject to their compliance with the rules governing pursuit of the economic activity and under the following conditions:

• third-country nationals must have sufficient resources at their disposal to take up, in the relevant Member State, the activity for which which they have applied for admission;
• an application for renewal may be submitted without leaving the Member State for the same activity as that for which the initial authorisation was granted or for an activity which follows on from or develops out of that activity.

The residence authorisation must be granted for a period of at least two years.

Third country nationals may be granted admission to study in the territory of a Member State where they have been admitted to a State or State-approved higher education establishment in order to:

• attend preparatory courses for a specific course of study in higher education;
• continue their studies;
• prepare a dissertation or doctoral thesis;
• pursue research activity as part of basic or advanced vocational education after obtaining a degree or higher education deploma, where that activity is not primarily intended to secure an income.

The duration of such authorisation must be calculated strictly on the basis of the duration of the studies/research concerned.

Third-country nationals who do not fit into any of the abovementioned categories may be admitted to the territory of a Member State under the following conditions:

• they have sufficient means to support themselves without engaging in any of the gainful activities referred to in points 7 and 9;
• they have social security cover valid in the Member State to which they are seeking admission;
• they can prove the lawful origin of their means of support;
• they have accommodation in the Member State to which they are applying for admission.

The residence authorisation must be granted for at least one year. It is renewable either annually or at longer intervals.

The following may exercise the right to family reunification:

• all third-country nationals legally resident in a Member State, subject to a waiting period, if they have accommodation and means to support themselves;
• all third-country nationals covered by the rules on admission for study purposes.

Where persons admitted for the purpose of family reunification are widowed, divorced, legally separated, lose their parents through death or reach the age of majority, provision is made for granting them independent residence authorisation.

Third-country nationals must be recognised as long-term residents in a Member State when they satisfy the following requirements:

• they have been legally resident on a regular basis in a Member State for at least five years; and
• they hold an authorisation which permits residence for a total period of at least ten years from their first admission.

In the Member State in which they are long-term residents, and without prejudice to Community law, third-country nationals recognised as long-term residents must:

• have access to all the territory of that Member State;
• be authorised to engage in any of the activities covered by this Convention;
• be authorised to reside for any of the reasons listed in points 11 et seq;
• be afforded increased protection against expulsion, subject to the requirements of law and order and internal security;
• enjoy the same treatment as citizens of the Union as regards access to gainful employment or self-employment, vocational training, trade union rights, the right of association, access to housing, whether in the private, public or parastatal sector, social security and schooling.

Any dispute between Member States or between a Member State and the Commission regarding the interpretation or application of this Convention must first be examined by the Council with a view to reaching a settlement. If no solution is found within six months, the matter must be referred to the Court of Justice of the European Communities by any party to the dispute.

The Court of Justice of the European Communities will be competent to give preliminary rulings on the interpretation of this Convention. Any court or tribunal of a Member State against whose decisions there is no judicial remedy under national law must request the Court of Justice of the European Communities to give a preliminary ruling on a question raised in a case pending before it concerning the interpretation of this Convention, if it considers that a decision on that question is necessary to enable it to give judgement.