Considerations on 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
 
table>(1)A number of amendments are to be made to Directive 2011/98/EU of the European Parliament and of the Council (4). In the interests of clarity, that Directive should be recast.
(2)The Union should ensure the fair treatment of third-country nationals who are legally residing in the territory of the Member States and a more vigorous integration policy should aim to grant those third-country nationals rights and obligations comparable to those of citizens of the Union.

(3)Provisions for a single application procedure leading to a combined title encompassing both residence and work permits within a single administrative act will contribute to simplifying and harmonising the rules currently applicable in Member States.

(4)In order to allow initial entry into their territory, Member States should be able to issue a single permit or, if they issue single permits only after entry, a visa. Member States should issue such single permits or visas in a timely manner.

(5)A set of rules governing the procedure for examination of the application for a single permit should be laid down in this Directive. That procedure should be effective and manageable, taking account of the normal workload of the Member States’ administrations, as well as be transparent, fair and non-discriminatory, in order to offer appropriate legal certainty to those concerned within a reasonable time frame.

(6)The European Pillar of Social Rights, proclaimed on 17 November 2017 in Gothenburg, establishes a set of principles to serve as a guide towards ensuring equal opportunities, access to the labour market, fair working conditions and social protection and inclusion. The review of Directive 2011/98/EU is part of the ‘Skills and talent’ package of measures which was proposed as a follow-up to the communication of the Commission of 23 September 2020 on a New Pact on Migration and Asylum. That review is also one of the elements of the communication of the Commission of 4 March 2021 on the European Pillar of Social Rights Action Plan.

(7)The provisions of this Directive should be without prejudice to the competence of the Member States to regulate the requirements for issuing a single permit for the purpose of work. This Directive should not affect the right of Member States in accordance with Article 79(5) of the Treaty on the Functioning of the European Union (TFEU). On that basis, Member States should be able to either consider an application for a single permit to be inadmissible or to reject it.

(8)This Directive should cover employment contracts and employment relationships between third-country nationals and employers. Where a Member State’s national law allows the admission of third-country nationals through temporary work agencies established on its territory and which have an employment relationship with the worker, such third-country nationals should not be excluded from the scope of this Directive. All provisions of this Directive concerning employers should equally apply to such agencies.

(9)Posted third-country nationals should not be covered by this Directive. This should not prevent third-country nationals who are legally residing and working in a Member State and posted to another Member State from continuing to enjoy equal treatment with respect to nationals of the Member State of origin for the duration of their posting, in respect of those terms and conditions of employment which are not affected by the application of Directive 96/71/EC of the European Parliament and of the Council (5).

(10)Third-country nationals who are beneficiaries of protection in accordance with national law, international obligations or the practice of a Member State should not be covered by this Directive, except for Chapter III, that should apply if in accordance with national law those third-country nationals are allowed to work and do so or have done so.

(11)Third-country nationals who have acquired long-term resident status in accordance with Council Directive 2003/109/EC (6) should not be covered by this Directive given their globally more privileged status and their specific type of residence permit ‘long-term resident-EU’.

(12)Third-country nationals who have been admitted to the territory of a Member State to work on a seasonal basis and have applied for admission or have been admitted to the territory of a Member State in accordance with Directive 2014/36/EU of the European Parliament and of the Council (7) should not be covered by this Directive given that they fall within the scope of Directive 2014/36/EU, which establishes a specific regime.

(13)The obligation on the Member States to determine whether the application is to be submitted by a third-country national or by the employer of that third-country national should be without prejudice to any arrangements requiring both to be involved in the procedure. The Member States should consider and examine applications for a single permit 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 issued by that Member State in accordance with Council Regulation (EC) No 1030/2002 (8). Member States should also have the option of accepting applications submitted by other third-country nationals who are legally present on their territory.

(14)The provisions of this Directive on the single application procedure and on the single permit should not concern uniform or long-stay visas. 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 should issue the third-country national with the requisite visa to obtain a single permit.

(15)The time limit for adopting a decision on the application should include the time required to check the labour market situation, where such a check is carried out in connection with an individual application for a single permit. A general check of the labour market situation that is not linked to an individual application for a single permit is therefore not covered by the time limit for adopting a decision. Member States should endeavour to issue the requisite visa to obtain a single permit in a timely manner.

(16)In order to avoid duplication of work and prolongation of the procedures, Member States should endeavour to require applicants to submit the relevant documents only once and only carry out one substantial check of the documents submitted by the applicant for the issuing of both a single permit and, where applicable, the requisite visa to obtain a single permit.

(17)The designation of the competent authority under this Directive should be without prejudice to the role and responsibilities of other authorities and, where applicable, the social partners, with regard to the examination of, and the decision on, the application.

(18)The time limit for adopting a decision on the application should, however, not include the time required for the recognition of professional qualifications. This Directive should be without prejudice to national procedures on the recognition of diplomas.

(19)Where no decision is taken by the authorities within the time limits provided for in this Directive, any consequences should be determined by national law and should be open to legal redress.

(20)As referred to in the communication of the Commission of 27 April 2022 on Attracting skills and talent to the EU, ‘Talent Partnerships’ are one of the key tools of the New Pact on Migration and Asylum with regard to its external dimension. Those partnerships aim to strengthen cooperation between the Union, Member States and partner countries, boost international labour mobility and develop talent in a mutually beneficial and circular way. Accelerating the processing of single permit applications within the limits provided for in this Directive, could also contribute to the effective implementation of ‘Talent Partnerships’ with key partner countries.

(21)With the aim of making labour markets in the Union more efficient and attractive, Member States should be able to expedite the processing of single permit applications submitted by or on behalf of third-country nationals who are already single permit holders in another Member State, within the limits provided for in this Directive.

(22)The single permit should be drawn up in accordance with Regulation (EC) No 1030/2002, enabling Member States to enter further information, in particular as to whether the person is permitted to work or not. A Member State should indicate, inter alia, for the purpose of better control of migration, not only on the single permit but also on all the issued residence permits, the information relating to the permission to work, irrespective of the type of the permit or the residence permit on the basis of which the third-country national has been admitted to the territory and has been given access to the labour market of that Member State. Third-country nationals should have the right to verify the information contained on paper or in an electronic format and, where appropriate, to have it corrected or deleted, in accordance with Regulation (EC) No 1030/2002.

(23)The provisions of this Directive on residence permits for purposes other than work should apply only to the format of such permits and should be without prejudice to Union or national rules on admission procedures and on procedures for issuing such permits.

(24)The provisions of this Directive on the single permit and on the residence permit issued for purposes other than work should not prevent Member States from issuing an additional paper document in order to be able to give more precise information on the employment relationship for which the format of the residence permit leaves insufficient space. Such a document can serve to prevent the exploitation of third-country nationals and combat illegal employment but should be optional for Member States and should not serve as a substitute for a work permit thereby compromising the concept of the single permit. Technical possibilities offered by Article 4 of Regulation (EC) No 1030/2002 and point (a)20 of the Annex thereto can also be used to store such information in an electronic format. Furthermore, employers are required to inform third-country workers of the essential aspects of the employment relationship and of any change to them, in accordance with Directive (EU) 2019/1152 of the European Parliament and of the Council (9).

(25)The conditions and criteria on the basis of which an application to issue, amend or renew a single permit can be rejected, or on the basis of which the single permit can be withdrawn, should be objective and should be laid down in national law including the obligation to respect the principle of Union preference as expressed in particular in the relevant provisions of the 2003 and 2005 Acts of Accession. Rejection and withdrawal decisions should be duly reasoned. A decision to reject an application to issue, amend or renew a single permit and a decision to withdraw a single permit should be based on criteria provided for by Union or national law and should take account of the specific circumstances of the case, where appropriate, and respect the principle of proportionality. In exceptional and duly justified circumstances linked to the complexity of the application, and in the interest of the applicant, it should be possible to extend the time limit to take a decision pursuant to this Directive for an additional period of 30 days. In the event of a change of employer by the single permit holder, an extension for an additional period of 15 days should be duly justified.

(26)In order to ensure that third-country nationals and their families have effective access to their rights, Member States should provide them with accessible information, free of charge, on the documentary evidence needed to apply for the single permit, as well as on the conditions of entry and residence and the rights, obligations, and procedural safeguards for their protection and that of their family members. That information should include information on social partners, with special reference to workers’ organisations, to facilitate their knowledge in order to better protect them at work.

(27)Third-country nationals who are in possession of a valid travel document and a single permit issued by a Member State applying the Schengen acquis in full, should be allowed to enter into and move freely within the territory of the Member States applying the Schengen acquis in full, for a period up to three months in any six-month period in accordance with Regulation (EU) 2016/399 of the European Parliament and of the Council (10) and Article 21 of the Convention implementing the Schengen Agreement of 14 June 1985 between the Governments of the States of the Benelux Economic Union, the Federal Republic of Germany and the French Republic on the gradual abolition of checks at their common borders (11) (Schengen Convention).

(28)In the absence of horizontal Union legislation, the rights of third-country nationals vary, depending on the Member State in which they work and on their nationality. With a view to developing further a coherent immigration policy and narrowing the rights gap between citizens of the Union and third-country nationals legally working in a Member State and complementing the existing immigration acquis, a set of rights should be laid down in order, in particular, to specify the fields in which equal treatment between a Member State’s own nationals and such third-country nationals who are not yet long-term residents is provided. Such provisions are intended to establish a minimum level playing field within the Union, to recognise that such third-country nationals contribute to the Union economy through their work and tax payments and to serve as a safeguard to reduce unfair competition between a Member State’s own nationals and third-country nationals resulting from the possible exploitation of the latter. A third-country worker in this Directive should be defined as a third-country national who has been admitted to the territory of a Member State, who is legally residing and who is allowed, in the context of an employment relationship, to work there in accordance with national law or practice. In this context, a third-country worker must have an employment contract or employment relationship as defined by national law, collective agreements or the practice of a Member State, with consideration to the case-law of the Court of Justice of the European Union.

(29)When a single permit holder changes employer, the new employer should communicate to the competent authorities details of the employment in accordance with procedures laid down in national law. A change to the conditions of employment such as the address of the employer, the habitual place of work, the working hours and the remuneration does not in itself constitute a change of employer.

(30)All third-country nationals who are legally residing and working in Member States should enjoy at least a common set of rights based on equal treatment with the nationals of the Member State where they reside, irrespective of the initial purpose of or basis for admission. The right to equal treatment in the fields covered by this Directive should be granted not only to those third-country nationals who have been admitted to a Member State to work but also to those who have been admitted for other purposes and have been given access to the labour market of that Member State in accordance with other provisions of Union or national law, including family members of a third-country worker who are admitted to the Member State in accordance with Council Directive 2003/86/EC (12) and third-country nationals who are admitted to the territory of a Member State in accordance with Directive (EU) 2016/801 of the European Parliament and of the Council (13).

(31)The right to equal treatment in specified fields should be strictly linked to the third-country national’s legal residence and the access given to the labour market in a Member State, which are enshrined in the single permit encompassing the authorisation to reside and work and in residence permits issued for other purposes containing information on the permission to work.

(32)The right to equal treatment of third-country workers with nationals of the Member State with regard to terms of employment and working conditions as referred to in this Directive contributes to decent work and the prevention of the exploitation of third-country workers. That right should cover at least the terms of employment, remuneration including overtime rates, deductions and back-payments thereof, claims in the event of the employer’s insolvency, the application of the principle of equal remuneration for equal work, dismissal, the equal treatment of men and women, training, health and safety at the workplace, working time and leave and holidays. The right to equal treatment should include working conditions laid down in Union law, national law, collective agreements and the practice of a Member State under the same terms as to nationals of the Member State concerned.

(33)A Member State should recognise professional qualifications acquired by a third-country national in another Member State in the same way as those of citizens of the Union and should take into account qualifications acquired in a third country in accordance with Directive 2005/36/EC of the European Parliament and of the Council (14). The right to equal treatment accorded to third-country workers as regards recognition of diplomas, certificates and other professional qualifications in accordance with the relevant national procedures should be without prejudice to the competence of Member States to admit such third-country workers to their labour market.

(34)Third-country workers should enjoy equal treatment as regards social security. Branches of social security are defined in Regulation (EC) No 883/2004 of the European Parliament and of the Council (15). The provisions on equal treatment concerning social security in this Directive should also apply to workers admitted to a Member State directly from a third country. Nevertheless, this Directive should not confer on third-country workers more rights than those already provided in existing Union law in the field of social security for third-country nationals who are in cross-border situations.

(35)The Court of Justice of the European Union held, in its judgment of 25 November 2020 in case C-302/19 (16), that a Member State cannot refuse or reduce the social security benefit to the holder of a single permit on the grounds that some or all of the family members of that holder reside not in its territory, but in a third country, if it grants that benefit to its own nationals irrespective of the place of residence of their family members.

(36)Member States should ensure at least equal treatment of third-country nationals who are in employment or who, after a minimum period of employment, are registered as unemployed. Any restrictions to the equal treatment in the field of social security under this Directive should be without prejudice to the rights conferred pursuant to Regulation (EU) No 1231/2010 of the European Parliament and of the Council (17).

(37)Union law does not limit the power of the Member States to organise their social security schemes. It is for each Member State to lay down the conditions under which social security benefits are granted, as well as the amount of such benefits and the period for which they are granted. However, when exercising that power, Member States should comply with Union law.

(38)Equal treatment of third-country workers should not apply to measures in the field of vocational training which are financed under social assistance schemes.

(39)Member States should ensure that they prevent discrimination against third-country workers with regard to their access to goods and services for which the equal treatment of third-country workers with nationals of the Member State where they reside is guaranteed in accordance with this Directive and national law. Particular attention should be paid to preventing possible discrimination in access to private rented housing in order to ensure that the housing conditions and rental contracts comply with national standards and national rules for private rentals, including standards and rules concerning rent amounts. It is particularly relevant to ensure that the third-country workers remain free to choose their accommodation, without the obligation to reside in accommodation provided by the employer, as is the case for the workers of the Member State concerned, in accordance with national law.

(40)To reinforce the equal treatment of third-country workers, Member States should provide for effective, proportionate and dissuasive penalties against employers in the event of infringements of national provisions adopted pursuant to this Directive, in particular with regard to working conditions, freedom of association and affiliation and branches of social security, as defined in Regulation (EC) No 883/2004.

(41)To ensure the proper enforcement of national provisions adopted pursuant to this Directive, Member States, in cooperation with social partners where applicable in accordance with national law, should provide for appropriate mechanisms for monitoring and, where appropriate, for effective and adequate inspections on their respective territories in accordance with national law or administrative practice. Services in charge of labour inspection or other competent authorities should, where appropriate, have access to the workplace.

(42)Member States should also ensure that there are effective mechanisms through which third-country workers should be able to seek legal redress and lodge complaints directly or through third parties having, in accordance with the criteria laid down by the national law, administrative practice or applicable collective agreements, a legitimate interest in ensuring compliance with this Directive, such as trade unions or other associations, or through competent authorities. Those effective mechanisms are considered necessary to address situations where third-country workers are unaware of the existence of enforcement mechanisms or hesitant to use them in their own name, for example out of fear of possible consequences. Member States should ensure that third-country workers have the same access as nationals of the Member State in which they reside to legal proceedings, including judicial and administrative procedures, complaints, mediation, and other mechanisms laid down under national law for nationals of the Member State. Member States should also guarantee access to legal aid under the same conditions provided for national workers in those proceedings, if provided for in their national law.

(43)In the context of the protection of workers, similar national measures concerning monitoring, assessment, inspections, penalties and the facilitation of complaints should already be adopted and in force at national level.

(44)The single permit should authorise its holder to change employer during the period of its validity. In addition to verifying whether the single permit holder continues to fulfil the requirements laid down by Union or national law, Member States should be able to put in place certain conditions for a change of employer, including a notification procedure and 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. In order to prevent potential abuse of the provisions of this Directive related to the change of employer, Member States should also be able to set a minimum period for which the single permit holder is required to work for the first employer before changing employer. Regardless of the duration of the employment contract established under national law, that minimum period should, in any event, not exceed six months. In exceptional and duly justified cases, for example the exploitation of the single permit holder or if the employer fails to meet its legal obligations in relation to the single permit holder, Member States should allow the change of employer before the expiration of such a minimum period.

(45)The single permit should not be withdrawn during a period of at least three months in the event of unemployment or six months if the third-country national has been a holder of the single permit for more than two years. For periods of unemployment longer than three months, Member States should be able to require single permit holders to provide evidence of having sufficient resources to maintain themselves.

(46)In order to reinforce the knowledge of the procedure for obtaining the single permit and the rights, obligations and procedural safeguards of third-country workers and their family members, Member States are encouraged to strengthen advertising activities and information campaigns concerning these matters, including, where appropriate, activities and campaigns directed at third countries.

(47)This Directive should be applied without prejudice to more favourable provisions contained in Union law and applicable international instruments.

(48)Member States should give effect to the provisions of this Directive without discrimination on the basis of sex, race, colour, ethnic or social origin, genetic features, language, religion or beliefs, political or any other opinions, membership of a national minority, property, birth, disability, age or sexual orientation in particular in accordance with Council Directive 2000/43/EC (18) and Council Directive 2000/78/EC (19).

(49)Since the objectives of this Directive, namely laying down a single application procedure for issuing a single permit for third-country nationals to work in the territory of a Member State and a common set of rights for third-country workers legally residing in a Member State, cannot be sufficiently achieved by the Member States but can rather, by reason of the scale and effects of the action, be better achieved at Union level, the Union may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on European Union (TEU). In accordance with the principle of proportionality as set out in that Article, this Directive does not go beyond what is necessary in order to achieve those objectives.

(50)This Directive respects the fundamental rights and observes the principles recognised by the Charter of Fundamental Rights of the European Union in accordance with Article 6(1) of the TEU.

(51)In accordance with Articles 1 and 2 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 the TEU and to the TFEU, and without prejudice to Article 4 of that Protocol, Ireland is not taking part in the adoption of this Directive and is not bound by it or subject to its application.

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

(53)The obligation to transpose this Directive into national law should be confined to those provisions which represent a substantive amendment as compared to the earlier Directive. The obligation to transpose the provisions which are unchanged arises under that earlier Directive.

(54)This Directive should be 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,