EU on a single application procedure for a permit for third-country nationals to reside and work and on a common set of rights for third-country workers - Main contents

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dossier	COM(2019)160 - Directive 2011/98/EU on a single application procedure for a permit for third-country nationals to reside and work and on a ...
document	COM(2019)160
date	March 29, 2019

Annex to the Regulation, must indicate the information relating to the permission to work. This provision has been complied with by most Member States either explicitly ²⁵ or implicitly ²⁶ on the basis of the national provisions on permits equivalent to the single permit.

According to the second subparagraph of Article 6(1), 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, place of work, type of work, working hours, remuneration) in paper format, or store such data in electronic format. This option has not been applied in most Member States. The option has been applied for both the paper and electronic format in Cyprus, Malta and the Netherlands. In the case of Spain, France and Slovakia, the option has only been applied for the paper format, whereas Hungary only applied the option for the electronic format.

Article 6(2) establishes that Member States may not issue additional permits as proof of authorisation to access the labour market in addition to the single permit. Most Member States comply with this. Some transposed this requirement explicitly (Cyprus, Latvia and Malta) and others implicitly ²⁷ on the basis of the national provisions on permits equivalent to the single permit. Transposing provisions are not clear in Germany.

Article 7 — Residence permits issued for purposes other than work

Article 7 applies to those admitted for reasons other than work, but who have the right to work, such as family members, students and others, including those who have national permanent residence status.

Pursuant to the first subparagraph of Article 7(1), when issuing residence permits in accordance with Regulation (EC) No 1030/2002, Member States must indicate the information relating to the permission to work irrespective of the type of the permit. That provision has been transposed in most Members States either explicitly (CY, LV and MT) or implicitly ²⁸ on the basis of the national provisions on permits equivalent to the single permit issued for purposes other than work.

The second subparagraph of Article 7(1) gives Member States the possibility to indicate additional information about the employment relationship of the third country national (such as the name and address of the employer, place of work, type of work, working hours, remuneration) in paper format, or store such data in electronic format. Most Member States have not applied this option. The option has been applied for both the paper and electronic format in Cyprus, Malta and the Netherlands. In the case of Spain the option has only been applied for the paper format, whereas Hungary only applied the option for the electronic format.

Article 7(2) requires that when issuing residence permits in accordance with Regulation (EC) No 1030/2002, Member States may not issue additional permits as proof of authorisation to access the labour market.

Most Member States transposed this provision either explicitly (CY, LV and MT) or implicitly ²⁹ on the basis of the national provisions on permits equivalent to the single permit issued for purposes other than work. In Hungary, however, it cannot be ascertained whether all permits which could be considered as single permits for purposes other than work also grant the right to work and therefore whether additional permits as proof of authorisation to access the labour market are required. Finally, in the Netherlands, although the work permit in conjunction with the residence document functions as a single permit, no specific provisions explicitly designate the use of the uniform format as required by the Directive, and thus it is not ensured that additional documentation is not given as proof of a work permit.

Article 8 — Procedural guarantees

Article 8 provides for certain procedural guarantees given to the applicant of the permit, namely the obligation to state reasons in writing for decisions rejecting an application to issue, amend or renew a permit, as well as the guarantee that written information will be provided on the authority where the applicant may lodge an appeal and the time limits. 19 Member States have transposed the procedural guarantees in accordance with the Directive’s provisions ³⁰ . The transposition into national law is done by introducing specific legislation or referring to general administrative rules. Conformity issues relating to Article 8(1) and (2) include that the applicable rules in some Member States do not guarantee that the applicant will receive information in writing about the reasons for rejection, the name of the authority where the applicant can lodge an appeal and the time limit for review (MT and PL).

Article 8(3) stipulates that an application may be considered inadmissible on the grounds of the volume of admission of third country nationals coming for employment and, on that basis, it does not need to be processed. Most Member States have not applied this option. ³¹ Others have applied it in a compliant manner, explicitly (CY, EL and IT) or implicitly (EE, HR, HU, MT, NL, RO and SK).

Article 9 — Access to information

Article 9 obliges Member States to provide, upon request, adequate information to the third country national and the future employer on the documents required to make a complete application. This provision has been transposed by the majority of Member States either though explicit transposition (CY, EL, LU and MT) or on the basis of the general principles of administrative law which ensure access to information ³² and with the (additional) possibility to obtain information on the necessary documents via the websites of the competent authorities (AT, CZ, DE, FR, HR and SK). Some Member States (BG, EE, PT and SI) do not clearly set out an obligation for the competent authorities to provide adequate information on the documents required to make a complete application.

Article 10 — Fees

Article 10 allows Member States to require applicants to pay fees, where appropriate, for handling applications in accordance with the Directive. Such fees are levied by all Member States for processing the application. In some cases, the Commission takes the view that the fees are excessively high, and contrary to the principle of proportionality endangering the Directive’s effet utile. The Court of Justice confirmed this in two judgments ³³ . The Commission engaged in exchanges with the national authorities and launched a number of infringement procedures against Member States for charging excessive and disproportionate fees for residence permits under different Directives, including the single permit Directive ³⁴ .

Article 11 — Rights on the basis of the single permit

Points (a) to (d) of Article 11 establishes the rights granted on the basis of the single permit: entry and residence, free access to the entire territory, right to exercise the specific employment activity authorised and right to be informed about the holder’s own rights. Most Member States transposed Article 11 in its entirety ³⁵ .

The transposition provisions of Article 11, point b (free access to the entire territory) in Poland and of Article 11, point d (exercising the specific employment activity) in Austria, Germany, Estonia, Luxembourg and Slovenia are not clearly identified. Information on the rights granted does not seem to be available in these Member States. Only in a small number of Member States did third country workers have the same rights as nationals to change their job or employer (FI, FR, IT and SI).

Article 12 — Right to equal treatment

Under the terms of Article 12 of the Directive, single permit holders enjoy equal treatment with nationals in a number of areas, including working conditions, freedom of association, social security benefits, education, recognition of academic and professional qualifications, tax benefits, access to goods and services and advice services (points (a) to (h)). Generally, Member States transposed this Article in a compliant manner.

Article 12 further allows restrictions to equal treatment in respect of some of the specified areas and clarifies that equal treatment should be without prejudice to the right of Member States to withdraw or to refuse to renew the residence permit. Despite the existence of these optional restrictions, few Member States have made use of them.

Moreover, Article 12 addresses equal treatment in relation to the portability of pension benefits. Pursuant to Article 12(1), the Directive’s provisions on equal treatment apply not only to those admitted to work under EU or national law, but also to those who are permitted to reside on other grounds, provided that they are allowed to work.

Article 12 is transposed either into national laws through specific provisions, general equal treatment clauses or through provisions regulating each of the specified areas under points (a) to (h).

A number of complaints lodged in this area indicate that there can be some problems in practice with transposition, especially where the principle of equal treatment has to be implemented by a range of different regional and local authorities.

Transposition issues on equal treatment arise, in particular, in relation to the following aspects:

-General exclusion of visa holders (Portugal);

-Recognition of diplomas, certificates and other professional qualifications in the Netherlands (recognition of diplomas only for permanent residents);

-Access to branches of social security in the Netherlands (restriction of access to sickness cash benefits and unemployment benefits for persons with a temporary residence), Slovenia (only one type of family benefits — the child supplement — is available to third country nationals); Italy (single permit holders excluded from certain types of family benefits) ³⁶ , Sweden (restrictions to social security benefits for stays of less than 1 year);

-Access to goods and services in Cyprus (third country workers do not have the right to buy real estate property for housing purposes).

Optional restrictions

Pursuant to Article 12(2), Member States have the option to restrict equal treatment in accordance with points (a) to (d) of Article 12(1). Most Member States have not applied all these options, only Cyprus has chosen to adopt all optional restrictions, whereas some (BG, CZ, ES, HR, LU, RO and SK) did not apply any of the options.

Pursuant to Article 12(3), the right to equal treatment laid down in Article 12(1) should 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. Poland did not transpose Article 12(3). The remaining Member States have transposed this provision either explicitly or through other national legislation.

Export of pensions

In line with Article 12(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, are entitled to receive statutory pensions for old age, invalidity and death. The pensions must be based on the third country 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.

Thirteen Member States ³⁷ allow for the transfer of pensions (covering old age, invalidity and survivors’ benefits) to third countries. Nationals and third country nationals are treated equally in this regard. Problems were identified in Slovenia, France, the Netherlands and Bulgaria. According to Slovenian law, the beneficiary who as a foreign national relocates permanently outside of Slovenia, will receive a pension in a foreign country if an international agreement has been signed with the country of relocation or if that state recognises such a right to the Slovenian nationals. However, for nationals Slovenia pays the pension to the beneficiary living abroad in all circumstances. In France, invalidity and death pensions are not exportable to third countries. In the Netherlands the rates appear to be reduced for the export of pensions affecting the return to third countries. Bulgarian legislation allows the export of pensions only if there are bilateral agreements with third countries.

Article 13 — More favourable provisions

Article 13 allows the application of more favourable provisions. In accordance with Article 13(1)(a), the provisions of this Directive shall apply without prejudice to more favourable provisions of 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. The large majority of Member States transposed this provision in a compliant manner.

In accordance with Article 13(1)(b), the provisions of the Directive shall also apply without prejudice to more favourable provisions of bilateral or multilateral agreements between one or more Member States and one or more third countries. No problematic issues were observed.

In line with Article 13(2), the application of this Directive should 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. No problematic issues were observed.

Article 14 — Information to the general public

Article 14 requires Member States to make regularly updated information available to the general public concerning the conditions of third country nationals’ admission to and residence in its territory in order to work there. All Member States comply with this obligation. Explicit transposition in the legislation has been provided in ten Member States ³⁸ . The study ³⁹ on the practical application of the EU legal migration framework carried out for the fitness check pointed to generally insufficient information provided by competent authorities on admission conditions and rights attached to permits.

Article 15(2) — Reporting

Article 15(2) obliges Member States annually, and for the first time by 25 December 2014, to communicate to the Commission statistics on the volumes of third country nationals who have been granted a single permit during the previous calendar year, in accordance with Regulation (EC) No 862/2007. In the majority of Member States ⁴⁰ the information obligations are not explicitly transposed in the national legislation, but are fulfilled in the context of the administrative procedures. Only Cyprus, Greece and Lithuania regulate such obligations in their legislation. Greece and Belgium have not, however, reported any statistics yet.

IV. CONCLUSIONS

Promoting the integration and non-discrimination of third country nationals is a long-standing commitment of the EU. The Single Permit Directive is a crucial tool for achieving this objective. Since the expiry of its transposition deadline at the end of 2013, the Commission has launched a number of infringement procedures and exchanged information with Member States to ensure that they have correctly transposed and implemented its provisions.

A key aspect of the Directive is the establishment of a ‘one-stop-shop’ mechanism at national level. This is particularly important when dealing with the organisational structure of governmental institutions where the issue of work and residence permits for third country nationals is under the responsibility of different authorities — namely the Ministry of the Interior and the Ministry of Labour. All Member States have stepped up their efforts to set up this type of mechanism. However, there are still problematic issues with the procedure. The remaining problems mainly relate to the multiple administrative steps required, the time needed to obtain the entry visas and labour market clearance and the respect of certain procedural safeguards.

The Directive also guarantees to third country nationals who are holders of a single permit an extended set of rights and promotes the principle of non-discrimination. Equal treatment provisions are a key element of the EU legal migration framework. Most Member States have complied with the provisions on equal treatment and a limited use has been made of the provisions allowing certain rights to be restricted. This report reveals, however, certain deficiencies in the transposition of the Directive (for example, restrictive interpretation of equal treatment provisions in a few Member States) which should lead to further steps being taken at EU and national levels. Finally, the fitness check on legal migration showed a lack of information among third country nationals about the possibility of obtaining a single permit and the rights attached to it.

The Commission will continue its efforts to ensure that the Directive is correctly transposed and implemented across the EU. In order to achieve this result, the Commission will make full use of its powers under the Treaty, including by launching infringement procedures, where necessary. At the same time, the Commission will continue working with the Member States at the technical level. Some legal and technical issues could be further discussed and clarified, such as visa and labour market test requirements, equal treatment coverage and issues related to the format of the permits and the information it should contain. Moreover, single permit holders should be better informed about their rights under the Directive.

The Commission will make the best use of existing websites, mainly via the updated Immigration Portal and will encourage and support Member States in launching awareness-raising campaigns to inform potential applicants of rights and procedures to obtain the single permit.

(1) OJ L 343 of 23.12.2011p. 1.
(2) The first was Directive 2003/86/EC on the right to family reunification.
(3) Denmark, Ireland and the UK are not bound by the Directive.
(4) A thorough analysis of the statistics for the Directive is included in the Fitness check staff working document, Annex 9.
(5) Source [migr_ressing] and [migr_resocc] as of 7.12.2018. AT only reports total permit decision, not if first decisions. BG, CZ, LT, NL do not report permits for family reasons. BG, CZ, ES, IT, LT, LU, HU, MT, AT do not report permits for education. BG, CZ, IT, LT, MT, NL, RO do not report permits for other reasons.
(6) At the time of finalising this report, BE had still not fully transposed the Directive, and a conformity assessment of BE was therefore not available. See also (CJEU) C-564/17, Commission vs Belgium. The assessment of this report therefore refers to the 24 other relevant Member States.
(7) SWD(2019) 1055 of 29 March 2019 Fitness check on EU legislation on legal migration. See also: https://ec.europa.eu/home-affairs/what-we-do/policies/legal-migration/fitness-check_en .
(8) See in particular EMN ad hoc queries from 2010 to 2013: the Single Permit System (176); the transposition of Directive 2011/98/EC on a single application procedure for a single permit; on the level of fees (204 and 205), parallel residence statuses (226); collection of a tax on residence permits (230), on the recognition of professional qualifications obtained outside the EU (271), the regulation of health insurance of third country nationals (342), duration of residence permit (428), on the format of residence cards and family permits (429).
(9) ICF(2018) .
(10) Discussions within the Legal Migration Contact Group (2013 – 2014).
(11) Belgium notified completed transposition early January 2019 and the infringement case has been closed.
(12) This report reflects the situation as of January 2019, and does not necessarily reflect the dialogue undertaken with Member States thereafter on key issues raised in this report.
(13) All except Malta.
(14) See concerns regarding Portugal above.
(15) CZ, DE, EE, EL, FI, HU, LU, MT, PL, RO, SE and SK.
(16) AT, CY, ES, FR, HR, LT, LV, NL, PT and SI.
(17) BG, PT, RO.
(18) All except DE.
(19) OJ L 155, 18.6.2009, p. 17.
(20) OJ L 132, 21.5.2016, p.21.
(21) AT, DE, ES, IT, LT, LU, LV, RO and SE.
(22) BG, CY, CZ, EE, EL, FI, HR, LT, LU, LV, MT, NL, PL, RO, SE, SI and SK.
(23) CZ, EE, EL, ES, FR, HR, HU, IT, LT, LU, PL, PT, RO and SK.
(24) As amended by Regulation (EU) 2017/1954, OJ L 286, 1.11.2017, p. 9–14.
(25) CY, FR, LV, MT and RO.
(26) CZ, DE, EE, EL, ES, FI, HR, HU, LT, LU, PL, SE, SI and SK.
(27) AT, CZ, EE, EL, ES, FI, FR, HR, HU, IT, LT, LU, PL, PT, RO, SE, SI and SK.
(28) CZ, DE, EE, EL, ES, FI, FR, HR, LT, LU, PL, RO, SE, SI and SK.
(29) AT, CZ, DE, EE, EL, ES, FI, FR, HR, IT, LT, LU, PL, PT, RO, SE, SI and SK.
(30) BG, CY, CZ, DE, EE, ES, FI, FR, HR, HU, LT, LU, LV, NL, PT, RO, SE, SI and SK.
(31) AT, BG, CZ, DE, ES, FI, FR, LT, LU, LV, PL, PT, SE and SI.
(32) AT, CZ, DE, ES, FI, HR, HU, IT, LT, LV, PL, NL, RO, SE and SK.
(33) 26 April 2012, C-508/10, Commission v. Netherlands; and 2 September 2015, C-309/14, CGIL & INCA.
(34) BG has been closed following changes in national legislation. EL, NL and PT still ongoing.
(35) BG, CY, CZ, EL, ES, FI, FR, HR, IT, LT, LV, MT, NL, PT, RO, SE and SK.
(36) See Case C-449/16 Martinez Silva.
(37) AT, CY, EE, ES, HR, IT, LT, MT, NL, PL, RO, SE and SK.
(38) CY, EL, ES, FI, FR, HR, LT, MT, PT and SK.
(39) ‘ Evidence base for practical implementation of the Legal Migration Directive’s Annex 2A ICF (2018) report.
(40) AT, BG, CZ, DE, EE, ES, FI, FR, HR, HU, IT, LU, LV, MT, PL, PT, NL, RO, SE, SI and SK.