Legal provisions of COM(2022)655 - Single application procedure for a single permit for third-country nationals to reside and work in the EU and a common set of rights for third-country workers (Recast)

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dossier COM(2022)655 - Single application procedure for a single permit for third-country nationals to reside and work in the EU and a common set ...
document COM(2022)655 EN
date April 24, 2024


CHAPTER I

GENERAL PROVISIONS

Article 1

Subject matter

1. This Directive lays down:

(a)a single application procedure for issuing a single permit for third-country nationals to reside for the purpose of work in the territory of a Member State, in order to simplify the procedures for their admission and to facilitate the control of their status;

(b)a common set of rights to third-country workers legally residing in a Member State, irrespective of the purposes for which they were initially admitted to the territory of that Member State, based on equal treatment with nationals of that Member State.

2. This Directive shall not affect the right of Member States to determine volumes of admission of third-country nationals in accordance with Article 79(5) TFEU.

Article 2

Definitions

For the purposes of this Directive, the following definitions apply:

(1)‘third-country national’ means a person who is not a citizen of the Union within the meaning of Article 20(1) TFEU;

(2)‘third-country worker’ means a third-country national who has been admitted to the territory of a Member State and who is legally residing and is allowed to work in the context of an employment relationship in that Member State in accordance with national law, collective agreements or practice;

(3)‘single permit’ means a residence permit issued by the authorities of a Member State allowing a third-country national to reside legally in its territory for the purpose of work;

(4)‘single application procedure’ means any procedure leading, on the basis of a single application made by a third-country national, or by the employer of that third-country national, for the authorisation of residence and work in the territory of a Member State, to a decision ruling on that application for the single permit.

Article 3

Scope

1. This Directive applies to third-country nationals who:

(a)apply to reside in a Member State for the purpose of work;

(b)have been admitted to a Member State for purposes other than work in accordance with Union or national law, who are allowed to work and who hold a residence permit in accordance with Regulation (EC) No 1030/2002; or

(c)have been admitted to a Member State for the purpose of work in accordance with Union or national law.

2. This Directive does not apply to third-country nationals:

(a)who are family members of citizens of the Union who have exercised, or are exercising, their right to free movement within the Union in accordance with Directive 2004/38/EC of the European Parliament and of the Council (20);

(b)who, together with their family members, and irrespective of their nationality, enjoy rights of free movement equivalent to those of citizens of the Union under agreements either between the Union and the Member States or between the Union and third countries;

(c)who are posted for as long as they are posted;

(d)who have applied for admission or have been admitted to the territory of a Member State to work as intra-corporate transferees in accordance with Directive 2014/66/EU of the European Parliament and of the Council (21);

(e)who have applied for admission or have been admitted to the territory of a Member State as seasonal workers in accordance with Directive 2014/36/EU or as au pairs;

(f)who are authorised to reside in a Member State on the basis of temporary protection in accordance with Council Directive 2001/55/EC (22), or who have applied for authorisation to reside there on that basis and are awaiting a decision on their status;

(g)who are beneficiaries of international protection under Directive 2011/95/EU of the European Parliament and of the Council (23) or who have applied for international protection under that Directive and whose application has not been the subject of a final decision;

(h)who are beneficiaries of protection in accordance with national law, international obligations or the practice of a Member State or who have applied for protection in accordance with national law, international obligations or the practice of a Member State and whose application has not been the subject of a final decision;

(i)who are long-term residents in accordance with Directive 2003/109/EC;

(j)whose removal has been suspended on the basis of fact or law;

(k)who have applied for admission or who have been admitted to the territory of a Member State as self-employed workers;

(l)who have applied for admission or have been admitted as seafarers for employment or work in any capacity on board of a ship registered in or sailing under the flag of a Member State.

3. Member States may decide that Chapter II does not apply to third-country nationals who have been either authorised to work in the territory of a Member State for a period not exceeding six months or who have been admitted to a Member State for the purpose of study.

4. Chapter II does not apply to third-country nationals who are allowed to work on the basis of a visa.

5. Notwithstanding paragraph 2, point (h) of this Article, Chapter III applies to beneficiaries of protection in accordance with national law, international obligations or the practice of a Member State, if in accordance with national law they are allowed to work.

CHAPTER II

SINGLE APPLICATION PROCEDURE AND SINGLE PERMIT

Article 4

Single application procedure

1. An application to issue, amend or renew a single permit shall be submitted by way of a single application procedure. Member States shall determine whether applications for a single permit are to be submitted by the third-country national or by the third-country national’s employer. Alternatively, Member States may allow applications to be submitted by either of the two.

2. An application for a single permit shall be considered and examined either where the third-country national is residing outside the territory of the Member State to which that third-country national wishes to be admitted, or where that third-country national is already residing in the territory of that Member State as a holder of a valid residence permit. A Member State may also accept, in accordance with its national law, applications for a single permit submitted by other third-country nationals who are legally present in its territory.

3. Member States shall examine an application submitted under paragraph 1 and shall adopt a decision to issue, amend or renew the single permit if the applicant fulfils the requirements laid down by Union or national law. A decision to issue, amend or renew the single permit shall constitute a single administrative act combining a residence permit and a work permit.

4. Provided that the requirements laid down by Union or national law are fulfilled and where a Member State issues single permits only on its territory, the Member State concerned shall issue the third-country national with the requisite visa to obtain a single permit.

5. Member States shall issue a single permit, where the conditions provided for are met, to third-country nationals who apply for admission and to third-country nationals already admitted who apply to renew or modify their residence permit after the entry into force of the national implementing provisions.

Article 5

Competent authority

1. Member States shall designate an authority competent to receive the application and to issue the single permit.

2. The competent authority shall adopt a decision on the application for a single permit as soon as possible and in any event within 90 days of the date of submission of a complete application.

The time limit referred to in the first subparagraph shall cover checking the labour market situation where such a check is carried out in connection with an individual application for a single permit.

Where no decision is taken within the time limit provided for in this paragraph, any consequences shall be determined by national law.

3. The competent authority shall notify the decision to the applicant in writing in accordance with the notification procedures laid down in the relevant national law. Where the third-country national’s employer submits the application, Member States shall ensure that the employer informs the third-country national about the status of the application and its outcome in a timely manner.

4. If the information or documents in support of the application are incomplete according to the criteria specified in national law, the competent authority shall notify the applicant in writing of the additional information or documents required, setting a reasonable deadline to provide them. The time limit referred to in paragraph 2, first subparagraph of this Article, and the additional period referred to in Article 8(3) shall be suspended until the competent authority or other relevant authorities have received the additional information required. If the additional information or documents is not provided within the deadline set, the competent authority may reject the application.

Article 6

Single permit

1. Member States shall issue a single permit using the uniform format as laid down in Regulation (EC) No 1030/2002 and shall indicate the information relating to the permission to work in accordance with points (a)12 and (a)16 of the Annex thereto.

Member States may indicate additional information related to the employment relationship of the third-country national, such as the name and address of the employer, the place of work, type of work, working hours and remuneration, in paper format, or store such data in electronic format as referred to in Article 4 of Regulation (EC) No 1030/2002 and in point (a)20 of the Annex thereto. In accordance with Article 4 of Regulation (EC) No 1030/2002, a third-country national to whom the single permit is issued shall have the right to verify personal information contained in that permit and, where appropriate, to have it corrected or deleted.

2. When issuing the single permit Member States shall not issue additional permits as proof of authorisation to access the labour market.

Article 7

Residence permits issued for purposes other than work

1. When issuing residence permits for purposes other than work in accordance with Regulation (EC) No 1030/2002, Member States shall indicate the information relating to the permission to work irrespective of the type of the permit.

Member States may indicate additional information related to the employment relationship of the third-country national, such as the name and address of the employer, the place of work, type of work, working hours and remuneration, in paper format, or store such data in electronic format as referred to in Article 4 of Regulation (EC) No 1030/2002 and in point (a)20 of the Annex thereto. In accordance with Article 4 of Regulation (EC) No 1030/2002, a third-country national to whom the residence permit is issued shall have the right to verify that additional information contained in that permit and, where appropriate, to have that information corrected or deleted.

2. When issuing residence permits in accordance with Regulation (EC) No 1030/2002, Member States shall not issue additional permits as proof of authorisation to access the labour market.

Article 8

Procedural safeguards

1. Reasons shall be given in the written notification of a decision rejecting an application to issue, amend or renew a single permit, or a decision withdrawing a single permit on the basis of criteria provided for by Union or national law.

2. A decision rejecting the application to issue, amend or renew or a decision withdrawing a single permit shall take account of the specific circumstances of the case and respect the principle of proportionality, in accordance with Union and national law. Such a decision shall be open to legal challenge in the Member State concerned, in accordance with national law. The written notification referred to in paragraph 1 shall specify the court or administrative authority where the person concerned may lodge an appeal and the time limit therefor.

3. The time limit to take a decision pursuant to Article 5(2) may be extended for an additional period of 30 days, in exceptional and duly justified circumstances linked to the complexity of the application by means of a notification or a communication to the applicant in accordance with the procedures laid down by national law.

4. The period referred to in Article 11(3), third subparagraph, may be extended for an additional period of 15 days, in exceptional and duly justified circumstances.

Article 9

Access to information

Member States shall make easily accessible, and provide upon request to the third-country national and the future employer:

(a)adequate information on all the documentary evidence needed for an application, and, where appropriate, on the applicable fees;

(b)information on entry and residence conditions, including the rights, obligations and procedural safeguards, including legal redress, of the third-country nationals and of their family members, and information on the workers’ organisations in accordance with national law.

Article 10

Fees

Member States may require the payment of fees for the processing of applications in accordance with this Directive. The level of fees required by a Member State for the processing of applications shall not be disproportionate or excessive. Where fees for processing applications are paid by the employer, the employer shall not be entitled to recover such fees from the third-country national.

Article 11

Rights on the basis of the single permit

1. Where a single permit has been issued, it shall authorise, during its period of validity, its holder at least to:

(a)enter and reside in the territory of the Member State issuing the single permit, provided that the holder meets all admission requirements in accordance with national law;

(b)have free access to the entire territory of the Member State issuing the single permit within the limits provided for by national law;

(c)exercise the specific employment activity authorised under the single permit in accordance with national law;

(d)be informed about the holder’s own rights linked to the permit conferred by this Directive, other Union law or national law.

2. Member States shall allow a single permit holder to change employer. Member States may subject the right of a single permit holder to change employer to any of the conditions set out in paragraph 3.

3. During the period of validity of a single permit, Member States may:

(a)require that a change of employer be notified to the competent authorities in the Member State concerned, in accordance with procedures laid down in national law;

(b)require that a change of employer be subject to a check of the labour market situation if the Member State concerned carries out checks of the labour market situation, for applications for a single permit;

(c)require a minimum period during which the single permit holder is required to work for the first employer.

The minimum period referred to in the first subparagraph, point (c), shall not exceed the duration of the employment contract or the period of validity of the permit. It shall, in any event, not exceed six months. Member States shall allow a single permit holder to change employer before the expiration of that minimum period in duly justified cases of a serious breach by the employer of the terms and conditions of the employment relationship.

Where the Member State requires that a change of employer be notified in accordance with the first subparagraph, point (a), the right of the single permit holder to change employer may be suspended for a maximum period of 45 days from the date on which the notification to the national competent authorities was made. During that period, the national competent authorities may verify whether the conditions set out under the first subparagraph, points (b) and (c), as applicable, are fulfilled, and also verify whether the other requirements laid down by Union or national law continue to be fulfilled. The Member State may oppose the change of employer within that period of 45 days.

4. Unemployment in itself shall not constitute a reason for withdrawing a single permit provided that:

(a)the total period of unemployment does not exceed three months during the period of validity of a single permit, or six months if the third-country national has been a holder of the single permit for more than two years;

(b)the beginning and, where applicable, the end of any period of unemployment is notified to the competent authorities of the Member State concerned, in accordance with the relevant national procedures.

By way of derogation from the first subparagraph, point (a), the Member State may allow a single permit holder to be unemployed for a longer period.

For the purposes of the first subparagraph, point (b), Member States shall determine whether the third-country national or the third-country national’s employer shall notify the competent authorities.

For periods of unemployment longer than three months, Member States may require single permit holders to provide evidence of having sufficient resources to maintain themselves without recourse to the social assistance system of the Member State concerned.

Where an unemployed single permit holder finds a new employer within the allowed period of unemployment referred to in this paragraph, and a Member State subjects the taking up of the new employment to any of the conditions set out in paragraph 3, it shall allow the single permit holder to stay in its territory until the competent authorities have verified the fulfilment of the conditions set out in paragraph 3 even if the allowed period of unemployment has expired.

5. Where the validity of the single permit expires during the procedure for its renewal, Member States shall allow the third-country national to stay in their territory as if that third-country national were a single permit holder until the competent authorities have taken a decision on the application for its renewal.

6. Where, in accordance with the procedures laid down by national law, the competent authorities of the Member State establish that there are reasonable grounds to believe that a single permit holder has experienced particularly exploitative working conditions, as defined in Article 2, point (i), of Directive 2009/52/EC of the European Parliament and of the Council (24), that Member State shall extend the allowed period of unemployment referred to in paragraph 4 of this Article, by three months.

CHAPTER III

RIGHT TO EQUAL TREATMENT

Article 12

Right to equal treatment

1. Third-country workers as referred to in Article 3(1), points (b) and (c), shall enjoy equal treatment with nationals of the Member State where they reside with regard to at least:

(a)terms of employment and working conditions, including with regard to remuneration, dismissal, working hours, leave and holidays and the equal treatment of men and women, as well as health and safety at the workplace;

(b)the right to strike and take industrial action, in accordance with the Member State’s national law and practice, and to freedom of association and affiliation and membership of an organisation representing workers or employers or of any organisation whose members are engaged in a specific occupation, including the rights and benefits conferred by such organisations, such as the right to negotiate and to conclude collective agreements, without prejudice to the national provisions on public policy and public security;

(c)education and vocational training;

(d)recognition of diplomas, certificates and other professional qualifications in accordance with the relevant national procedures;

(e)branches of social security, as defined in Regulation (EC) No 883/2004;

(f)tax benefits, in so far as the worker is deemed to be resident for tax purposes in the Member State concerned;

(g)access to goods and services and the supply of goods and services made available to the public including procedures for obtaining access to public and private housing as provided by national law, without prejudice to the freedom of contract in accordance with Union and national law;

(h)advice services and information provided by employment offices.

2. Member States may restrict equal treatment:

(a)under paragraph 1, point (c), by:

(i)limiting its application to those third-country workers who are in employment or who have been employed and who are registered as unemployed;

(ii)excluding those third-country workers who have been admitted to their territory in conformity with Directive (EU) 2016/801;

(iii)excluding study and maintenance grants and loans or other grants and loans;

(iv)laying down specific prerequisites including language proficiency and the payment of tuition fees, in accordance with national law, with respect to access to university and post-secondary education and training and to vocational education and training which is not directly linked to the specific employment activity;

(b)by limiting the rights conferred on third-country workers under paragraph 1, point (e), but shall not restrict such rights for third-country workers who are in employment or who have been employed for a minimum period of six months and who are registered as unemployed.

In addition, Member States may decide that paragraph 1, point (e), with regard to family benefits shall not apply to third-country nationals who have been authorised to work in the territory of a Member State for a period not exceeding six months, to third-country nationals who have been admitted for the purpose of study, or to third-country nationals who are allowed to work on the basis of a visa.

(c)under paragraph 1, point (f), with respect to tax benefits by limiting its application to cases where the registered or usual place of residence of the family members of the third-country worker for whom the third-country worker claims benefits, lies in the territory of the Member State concerned;

(d)under paragraph 1, point (g), by:

(i)limiting its application to those third-country workers who are in employment;

(ii)restricting access to housing, except for the rental of a private residence, within the limits provided for by the national law.

3. The right to equal treatment laid down in paragraph 1 shall be without prejudice to the right of the Member State to withdraw or to refuse to renew the residence permit issued under this Directive, the residence permit issued for purposes other than work, or any other authorisation to work in a Member State.

4. Third-country workers moving to a third country, or their survivors who reside in a third country and who derive rights from those workers, shall receive, in relation to old age, invalidity and death, statutory pensions based on those workers’ previous employment and acquired in accordance with the legislation referred to in Article 3 of Regulation (EC) No 883/2004, under the same conditions and at the same rates as the nationals of the Member States concerned when they move to a third country.

Article 13

Monitoring, assessment, inspections and penalties

1. Member States shall provide for measures to prevent possible abuses and to sanction infringements by employers of national provisions on equal treatment adopted pursuant to Article 12. Measures shall include monitoring, assessment and, where appropriate, inspections, particularly in sectors identified as being at high risk of violations of labour rights, in accordance with national law or administrative practice.

2. Member States shall provide for penalties against employers who have not fulfilled their obligations under this Directive. Those penalties shall be effective, proportionate and dissuasive.

3. Member States shall ensure that services in charge of the inspection of labour or other competent authorities and, where provided for under national law for nationals of the Member State, organisations representing workers’ interests have access to the workplace. Where accommodation is provided by the employer and where provided for under national law for nationals of the Member State, access to the workplace shall include access to that accommodation provided that the third-country worker consents to such access.

Article 14

Facilitation of complaints and legal redress

1. Member States shall ensure that there are effective mechanisms through which third-country workers may lodge complaints against their employers:

(a)directly;

(b)through third parties which have, in accordance with the criteria laid down by their national law, a legitimate interest in ensuring compliance with this Directive and the national provisions adopted pursuant to this Directive; and

(c)through a competent authority of the Member State when provided for by national law.

2. Member States shall ensure that third parties referred to in paragraph 1, point (b), may engage either on behalf of or in support of a third-country worker, with the consent of that third-country worker, in any administrative or civil proceedings aimed at enforcing compliance with this Directive and the national provisions adopted pursuant to this Directive.

3. Member States shall ensure that third-country workers have the same access as nationals of the Member State where they reside with regard to:

(a)measures protecting against dismissal or other adverse treatment by the employer as a reaction to a complaint within the undertaking;

(b)any legal proceedings aimed at enforcing compliance with this Directive and the national provisions adopted pursuant to this Directive.

CHAPTER IV

FINAL PROVISIONS

Article 15

More favourable provisions

1. This Directive shall apply without prejudice to more favourable provisions of:

(a)Union law, including bilateral and multilateral agreements between the Union, or the Union and its Member States, on the one hand and one or more third countries on the other; and

(b)bilateral or multilateral agreements between one or more Member States and one or more third countries.

2. This Directive shall be without prejudice to the right of Member States to adopt or maintain provisions that are more favourable to the persons to whom it applies.

Article 16

Information to the general public

Each Member State shall make easily accessible to the general public a regularly updated set of information, including through sources accessible in relevant third countries:

(a)concerning the conditions of third-country nationals’ admission to and residence in its territory for the purpose of work;

(b)on all the documentary evidence needed for the application for a single permit;

(c)on entry and residence conditions, including the rights, obligations and procedural safeguards, of the third-country nationals and their family members.

Article 17

Reporting

1. Periodically, and for the first time no later than 21 May 2029, the Commission shall present a report to the European Parliament and the Council on the application of this Directive in the Member States and shall propose amendments it deems necessary.

2. For the first time no later than 30 June 2028 and annually thereafter, Member States shall communicate to the Commission (Eurostat) statistics on the volumes of third-country nationals who have applied for a single permit, those who have been granted a single permit and those whose single permit has been renewed or withdrawn during the previous calendar year, in accordance with Regulation (EC) No 862/2007 of the European Parliament and of the Council (25). Those statistics shall relate to reference periods of one calendar year, be disaggregated by type of decision, reason for the decision„ length of validity of permits, citizenship, sex and age and, where available, by occupation and be transmitted within six months after the end of the reference period.

Article 18

Transposition

1. Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with Article 2, point (2), Article 3(2) and (5), Article 4(1), (2) and (4), Article 5(2), (3) and (4), Article 6(1), Article 7(1), Article 8(2), (3) and (4), Article 9, Article 10, Article 11(1), point (d), Article 11(2) to (6), Article 12(1), points (a), (b), (g) and (h), Article 12(2), point (d)(ii), Articles 13, 14, 16 and 17 by 21 May 2026. They shall immediately communicate the text of those measures to the Commission.

When Member States adopt those measures, they shall contain a reference to this Directive or shall be accompanied by such a reference on the occasion of their official publication. They shall also include a statement that references in existing laws, regulations and administrative provisions to the Directive repealed by this Directive shall be construed as references to this Directive. Member States shall determine how such reference is to be made and how that statement is to be formulated.

2. Member States shall communicate to the Commission the text of the main measures of national law which they adopt in the field covered by this Directive.

Article 19

Repeal

Directive 2011/98/EU is repealed with effect from 22 May 2026, without prejudice to the obligations of the Member States relating to the time-limit for the transposition into national law of the Directive set out in Annex I.

References to the repealed Directive shall be construed as references to this Directive and shall be read in accordance with the correlation table in Annex II.

Article 20

Entry into force and application

This Directive shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union.

Article 1, Article 2 points (1), (3) and (4), Article 3(1), (3) and (4), Article 4(3) and (5), Article 5(1), Article 6(2), Article 7(2), Article 8(1), Article 11(1), points (a), (b) and (c), Article 12(1), points (c) to (f), Article 12(2), points (a), (b), (c) and (d)(i), Article 12(3) and (4) and Article 15, shall apply from 22 May 2026.

Article 21

Addressees

This Directive is addressed to the Member States in accordance with the Treaties.