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Entry and residence of highly skilled people, and students and researchers in the EU

[Directive 2016/801] …on the conditions of entry and residence of third-country nationals for the purposes of research, studies, training, voluntary service, pupil exchange schemes or educational projects and au pairing.

This Directive should promote the Union as an attractive location for research and innovation and advance it in the global competition for talent and, in so doing, lead to an increase in the Union's overall competitiveness and growth rates while creating jobs that make a greater contribution to GDP growth. Opening the Union up to third-country nationals who may be admitted for the purpose of research is also part of the Innovation Union flagship initiative. Creating an open labour market for Union researchers and for researchers from third countries was also affirmed as a key aim of the European Research Area, a unified area in which researchers, scientific knowledge and technology circulate freely.

It is appropriate to facilitate the admission of third-country nationals applying for the purpose of carrying out a research activity through an admission procedure which does not depend on their legal relationship with the host research organisation and by no longer requiring a work permit in addition to an authorisation. This procedure should be based on collaboration between research organisations and the immigration authorities in Member States. It should give the former a key role in the admission procedure with a view to facilitating and speeding up the entry of third-country nationals applying for the purpose of carrying out a research activity in the Union while preserving Member States' prerogatives with respect to immigration policy. Research organisations, which Member States should have the possibility to approve in advance, should be able to sign either a hosting agreement or a contract with a third-country national for the purpose of carrying out a research activity. Member States should issue an authorisation on the basis of the hosting agreement or the contract if the conditions for entry and residence are met.

In order to make the Union more attractive for third-country nationals wishing to carry out a research activity in the Union, their family members, as defined in Council Directive 2003/86/EC (6), should be allowed to accompany them and benefit from intra-EU mobility provisions. Those family members should have access to the labour market in the first Member State and, in the case of long-term mobility, in the second Member States, except in exceptional circumstances such as particularly high levels of unemployment where Member States should retain the possibility to apply a test demonstrating that the post cannot be filled from within the domestic labour market for a period not exceeding 12 months. With the exception of derogations provided for in this Directive, all the provisions of Directive 2003/86/EC should apply, including grounds for rejection or withdrawal or refusal of renewal. Consequently, residence permits of family members could be withdrawn or their renewal refused if the authorisation of the researcher they are accompanying comes to an end and they do not enjoy any autonomous right of residence.

The term ‘higher education’ encompasses all tertiary institutions which may include, inter alia, universities, universities of applied science, institutes of technology, grandes écoles, business schools, engineering schools, IUTs, colleges of higher education, professional schools, polytechnics and academies.

Third-country nationals who apply to be admitted as trainees should provide evidence of having obtained a higher education degree within the two years preceding the date of their application or of pursuing a course of study in a third country that leads to a higher education degree. They should also present a training agreement which contains a description of the training programme, its educational objective or learning components, its duration and the conditions under which the trainee will be supervised, proving that they will benefit from genuine training and not be used as normal workers. In addition, host entities may be required to substantiate that the traineeship does not replace a job. Where specific conditions already exist in national law, collective agreements or practices for trainees, Member States should be able to require third-country nationals who apply to be admitted as trainees to meet those specific conditions.

If Member States decide to apply this Directive to school pupils, they are encouraged to ensure that the national admission procedure for teachers exclusively accompanying pupils within the framework of a pupil exchange scheme or an educational project is coherent with the procedure for school pupils provided for in this Directive.

Member States should have the possibility to provide for an approval procedure for public or private research organisations or both wishing to host third-country national researchers or for higher education institutions wishing to host third-country national students. This approval should be in accordance with the procedures set out in the national law or administrative practice of the Member State concerned. Applications to approved research organisations or higher education institutions should be facilitated and should speed up the entry of third-country nationals coming to the Union for the purpose of research or studies.

Member States should have the possibility to provide for an approval procedure for respective host entities wishing to host third-country national pupils, trainees or volunteers. Member States should have the possibility to apply this procedure to some or all of the categories of the host entities. This approval should be in accordance with the procedures set out in the national law or administrative practice of the Member State concerned. Applications to approved host entities should speed up the entry of third-country nationals coming to the Union for the purpose of training, voluntary service or pupil exchange schemes or educational projects.

Once all the general and specific conditions for admission are fulfilled, Member States should issue an authorisation, within specified time limits. If a Member State issues residence permits only on its territory and all the conditions of this Directive relating to admission are fulfilled, the Member State should grant the third-country national concerned the requisite visa and should ensure that the competent authorities effectively cooperate for that purpose. In the event that the Member State does not issue visas, it should grant the third-country national concerned an equivalent permit allowing entry.

Member States should have the right to determine that the total duration of residence of students does not exceed the maximum duration of studies, as provided for in national law. In this respect, the maximum duration of studies could also include, if provided for by the national law of the Member State concerned, the possible extension of studies for the purpose of repeating one or more years of studies.

It should be possible to refuse admission for the purposes of this Directive on duly justified grounds. In particular, it should be possible to refuse admission if a Member State considers, on the basis of an assessment of the facts in an individual case and taking into account the principle of proportionality, that the third-country national concerned is a potential threat to public policy, public security or public health..

The objective of this Directive is not to regulate the admission and residence of third-country nationals for the purpose of employment and it does not aim to harmonise national laws or practices with respect to workers' status. It is possible, nevertheless, that in some Member States specific categories of third-country nationals covered by this Directive are considered to be in an employment relationship on the basis of national law, collective agreements or practice.

Where a third-country national researcher, volunteer, trainee or au pair applies to be admitted to enter into an employment relationship in a Member State, it should be possible for that Member State to apply a test demonstrating that the post cannot be filled from within the domestic labour market.

This Directive aims to facilitate intra-EU mobility for researchers and students, inter alia by reducing the administrative burden related to mobility in several Member States. For this purpose, this Directive sets up a specific intra-EU mobility scheme whereby a third-country national who holds an authorisation for the purpose of research or studies issued by the first Member State is entitled to enter, stay and carry out part of the research activity or studies in one or several second Member States in accordance with the provisions governing mobility under this Directive.

In order to enable researchers to move easily from one research organisation to another for the purpose of research, their short-term mobility should cover stays in second Member States for a period of up to 180 days in any 360-day period per Member State. Long-term mobility for researchers should cover stays in one or several second Member States for a period of more than 180 days per Member State. Family members of researchers should be entitled to accompany the researcher during mobility. The procedure for their mobility should be aligned to that of the researcher they accompany.

While the specific mobility scheme established by this Directive should set up autonomous rules regarding entry and stay for the purpose of research or studies in Member States other than the one that issued the initial authorisation, all the other rules governing the movement of persons across borders as laid down in the relevant provisions of the Schengen acquis should continue to apply.

In order to allow students to cover part of the cost of their studies and, if possible, to gain practical experience, they should be given, during their studies, access to the labour market of the Member State where the studies are undertaken, under the conditions set out in this Directive. Students should be allowed to work a certain minimum amount of hours as specified in this Directive for that purpose. The principle of access for students to the labour market should be the general rule. However, in exceptional circumstances, Member States should be able to take into account the situation of their national labour markets.

As part of the drive to ensure a well-qualified workforce for the future, students who graduate in the Union should have the possibility to remain on the territory of the Member State concerned for the period specified in this Directive with the intention to identify work opportunities or to set up a business. Researchers should also have that possibility upon completion of their research activity as defined in the hosting agreement. In order to be issued a residence permit for that purpose, students and researchers may be asked to provide evidence in accordance with the requirements of this Directive. Once Member States issue them such a residence permit, they cease to be considered as researchers or students within the meaning of this Directive.

In accordance with Articles 1 and 2 and Article 4a(1) of Protocol No 21 on the position of the United Kingdom and Ireland in respect of the area of freedom, security and justice, annexed to TEU and TFEU, and without prejudice to Article 4 of that Protocol, those Member States are not taking part in the adoption of this Directive and are not bound by it or subject to its application.

In accordance with Articles 1 and 2 of the Protocol No 22 on the position of Denmark annexed to TEU and TFEU, Denmark is not taking part in the adoption of this Directive and is not bound by it or subject to its application.

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Current discussions

Marizia Dunlopilo (Boston / USA) - 8 June 2016
 

If I understand this Directive well, when it will come into force, students and researchers may move more easily within the EU during their stay. In future, they will not need to file a new visa application, but only to notify the member state to which they are moving, for example to do a one-semester exchange. Researchers will also be able to move for longer periods than those currently allowed. I applaud these good intentions and hope that they will work well for the interest of all parties concerned.



Γιώργος Κ. (Θεσσαλονίκη / Ελλάδα) - 12 June 2016
Εντάξει! Θα κάνουμε όλους τους πρόσφυγες μαθητές, φοιτητές  ή ερευνητές και θα λύσουμε το προσφυγικό πρόβλημα!

Maria Baranis (Toronto / Canada) - 17 June 2016
It is important to note that, according to the new Directive, students and researchers have the right to submit applications from within the EU, where previously they had to be based outside, or travel back to their country of origin to submit an application. This is indeed an important element in attracting and retaining highly qualified researchers from outside the EU.

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