CENTRE FOR

EUROPEAN
POLICY
STUDIES
CEPS WORKING DOCUMENT NO. 198
DECEMBER 2003

TOWARDS A PROACTIVE IMMIGRATION

POLICY FOR THE EU?

JOANNA APAP
AND

SERGIO CARRERA

CEPS Working Documents are published to give an indication of the work within
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 TOWARDS A PROACTIVE IMMIGRATION POLICY
FOR THE EU?
*
JOANNA APAP
AND
**
SERGIO CARRERA

Abstract
This report involves an assessment of the legislative progress achieved towards a
proactive immigration policy regarding those described as ‘third country nationals’
(TCNs) entering into and residing legally in the European Union (EU). We also evaluate
the extent to which the attacks of 11 September 2001 in the US had a real impact on the
legislative developments and policy agenda in relation to this area.
The main points of analysis of this report thus include:
1) The evolution of immigration policy at the European level.
2) The study of the key legal instruments dealing with TCNs, and their potential effects
and consequences: Do they guarantee a closer position to the EU citizens’ status?
What level of rights and protection do they confer to foreigners? Do they truly
contribute to the current political desire for the integration of immigrants within the
host country?
3) A comparison with EU citizens’ status, particularly looking at the similarities and
differences between them.
4) To what extent did the events of 11 September influence in any way the policy
priorities relating to the development of a European immigration policy?

*
Joanna Apap is Head of the Justice and Home Affairs Research Unit at CEPS.
**
Sergio Carrera is a Research Assistant at CEPS.
 Contents

Introduction .................................................................................................................. 1

1. Main EU initiatives and measures at stake on immigration .................................. 2

2. Evolution of immigration policy at EU level – Towards an equal treatment?........ 4

2.1 The Council Directive on family reunification – Does it confer a right?...... 5
Some remarks on the new Council Directive .............................................. 6
Set of Rights conferred under the Directive................................................. 9
2.2 Towards an equal status between EU nationals and third-country nationals
who are long-term residents...................................................................... 15
Analysis of the core points of the proposal on the status of third-country
nationals who are long-term residents ...................................................... 16
Other critical aspects within the Directive’s scope and contents ............... 19
2.3 The Proposal for a Council Directive on the conditions of entry and
residence of third country nationals for the purpose of paid employment and
self-employment activities ........................................................................ 26
Analysis of the key elements of the proposal ............................................. 28
2.4 The proposal for a Council Directive on the conditions of entry and
residence of third-country nationals for the purposes of studies, vocational
training or voluntary service ..................................................................... 35
Some remarks on the Commission’s Proposal .......................................... 36

3. How have the events of 11 September 2001 affected the development of a

European immigration policy? ........................................................................... 41

4. Conclusion ........................................................................................................ 43

References .................................................................................................................. 45

Annex 1...................................................................................................................... 53
 TOWARDS A PROACTIVE IMMIGRATION POLICY
FOR THE EU?

JOANNA APAP
AND
SERGIO CARRERA
Introduction
Issues relating to ‘third country nationals’ (TCNs) have historically been considered to
be of a purely intergovernmental character, residing at the heart of national sovereignty.
During the 1990s, Justice and Home Affairs (JHA) moved to centre stage in the whole
European debate, and immigration became one of the most controversial policy areas.
Concern has been growing about immigration since the Maastricht Treaty
institutionalised the third pillar of the EU.1 This concern has been further stimulated by
several factors, most notably the persistence of illegal immigration with its associated
atrocities, 2 the need for immigrant workers/labour force in some specific sectors in the
EU as a whole, 3 and the spectre of an ageing European population.
Two aspects are central to the immigration policy currently under development at
European level: control and openness, representing two sides of the same coin.
Convergence of policy seems to have been achieved much faster on control, while
various reservations still exist on openness, especially by certain member states. We
focus on this latter aspect - openness - of the European immigration policy by
assessing the extent to which key legislative measures are going to confer on and foster
a status for third country nationals that is “as near as possible” to that enjoyed by EU
citizens.4
The Treaty of Amsterdam, which entered into force in May 1999, represented a major
development in overall JHA policy, marking a brand new phase. The fields of “visas,
asylum, immigration and other policies related to the free movement of persons” came
under the first pillar, and thus within the competence of European Community law,
under Title IV of the EC Treaty, Articles 61-69. For the first time the EU legislative
machinery had a mandate to enact EU legislation on TCNs.
The Tampere European Council of 15-16 October 1999, aimed to establish an equitable
balance between freedom, security and justice. The Presidency Conclusions called for
the creation of a uniform set of rules through which fair treatment of TCNs residing

1
Former Title VI, Provisions on Cooperation in the Fields of Justice and Home Affairs, Article K.
2
Such as the tragedy at Dover in July 2000 in which 58 Chinese nationals lost their lives trying to enter
the United Kingdom illegally, and the continued discovery of dead bodies floating in the Mediterranean
believed to have been victims of traffickers of human beings.
3
See United Nations (2000) for worldwide demographic projections for the period 1995-2050.
4
See Paragraph 21 of the Presidency Conclusions of the Tampere European Council, 15-16 October
1999, SN 200/99: “A person who has resided legally in a Member State for a period of time to be
determined and who holds a long-term residence permit, should be granted in that Member State a set of
uniform rights which are as near as possible to those enjoyed by EU citizens”.

|1
2 | APAP & CARRERA

legally in the EU would be ensured. This body of law should be also “as near as
possible” to those enjoyed by EU citizens, thus providing a “true equal treatment” for
EU and non-EU nationals alike.5 However, “equal treatment” is still far from being
achieved and has largely remained more a vision than a reality.
Since 1999, the European Commission has progressively worked to establish the main
elements for the creation of a common policy on immigration, having as a basis Article
63 TEC6 and the Tampere milestones. It seems to us, however, that policy-makers are at
times hesitant to support the Commission’s initiatives in such a sensitive policy area.
Political convergence is certainly needed to break with the past and the still
predominant philosophy of ‘Fortress Europe’, particularly at the time of national
elections.
The Treaty of Amsterdam framed neither a coherent strategy nor a comprehensive
approach to non-EU citizens. Nonetheless, until the entry into force of this treaty, TCNs
were not covered by the provisions of Community law (see Apap, 2002). Only a
privileged group could and can benefit indirectly from free movement rights for a
duration of more than three-months through the so-called ‘derived rights’:
• members of the family of an EU national who has exercised free movement rights;7
• nationals of states connected to the EU by an association (EEA) or cooperation
agreement; and
• workers of a company on whose behalf they carry out services in another member
state.
This report focuses on those third-country nationals who were considered as a ‘non-
privileged group’ or non-addressees of European Community law, i.e. those not falling
into any of the above three categories, and thus facing a rather low degree of protection
in the form of guaranteed rights in the current situation at national as well as at
European level.

1. Main EU initiatives and measures at stake on immigration

Despite the European Commission’s efforts to prepare a whole package of proposals
that would provide the bases for a legal framework to open legal channels for
immigration as well as to extend certain rights pertaining to EU citizenship, clear
political direction and commitment have not yet been reached within the Council. This
can be seen clearly by reviewing the Commission’s Communication on the biannual
update of the scoreboard.8 Indeed, as we will see later in this report, only one from the

5
See also Paragraph 18 of the Conclusions.
6
Article 63 TEC reads as follows: “The Council…shall adopt: (3) measures on immigration policy within
the following areas: (a) conditions of entry and residence, and standards on procedures for the issue by
Member States of long term visas and residence permits,… ”
7
See the Opinion of Advocate General Geelhoed in Case C-109/01, Secretary of State for the Home
Department v Hacene Akrich, of 27 February 2003.
8
Communication from the Commission to the Council and the European Parliament, Biannual Update of
the Scoreboard to review progress on the creation of an area of “Freedom, Security and Justice” in the
European Union, first half of 2003, Brussels, 22.5.2003, COM(2003) 291 final.
 TOWARDS A PROACTIVE IMMIGRATION POLICY FOR THE EU? | 3

group of European legislative proposals dealing with ‘legal immigration’ has been
adopted so far.
The Commission has presented three core Communications as the basis for discussion
of a proactive immigration policy since Tampere:
1. Commission Communication on a Community immigration policy, 9
2. Commission Communication on an open method of coordination for the Community
immigration policy, 10 and
3. Commission Communication on immigration, integration and employment.11

In the two first Communications, the Commission underlined the need to foster a
“proactive” immigration policy, i.e. a policy that instead of focusing on vain attempts to
prevent and stop immigration, would try to open up legal channels and help address the
needs and gaps of the European labour market. The Commission also expressed the
urgency to adopt a more flexible approach common to all member states on the issue of
legal immigration. It also recognised that the adoption of an open method of
coordination was the more appropriate way to stimulate the further development of a
common immigration policy. 12
The Communication on immigration, integration and employment, presented at the
Thessaloniki European Council of 19 and 20 June 2003, highlights the need to develop
a sound immigration policy in parallel with a “holistic integration policy”. Thus, in the
European Commission’s opinion, a series of key elements should be taken into account
in order to ensure the success of the policy measures in the field, namely “employment,
economic participation, education, language training, health, and social services,
housing, town planning, culture and involvement in social life”.
Furthermore, among the group of legislative acts dealing with the so-called ‘legal or
regular immigration’, the following need to be highlighted:
1. Council Resolution of 20 June 1994 on limitation of admission of third-country
nationals to the territory of the Member states for employment
2. Council Resolution of 30 November 1994 on limitation on admission of third-
country nationals to the territory of the Member states for the purpose of pursuing
activities as self-employed persons
3. Council Directive 2000/43/EC implementing the principle of equal treatment
between persons irrespective of racial or ethnic origin, 19/07/2000

9
Commission Communication to the Council and the European Parliament on a Community Immigration
Policy COM (2000) 757, 22.11.2000.
10
Communication from the Commission to the Council and the European Parliament on a open method of
co-ordination for the Community immigration policy, 11th July, COM (2001) 387 final.
11
Communication from the Commission to the Council, the European Parliament, the European
Economic and Social Committee and the Committee of the regions, on immigration, integration and
employment, Brussels, 3.6.2003, COM (2003) 336 final.
12
The Commission does not propose any quota system on a European scale, which would be
“impracticable”, but rather some “indicative targets”. The proposed system will produce periodic reports
of the member states, re-examine the impact of member states’ immigration policies during the past
period and make projections on the number of economic migrants needed in future.
4 | APAP & CARRERA

4. Council Directive 2000/78/EC establishing a general framework for equal treatment

in employment and occupation, 27/11/2000
5. Proposal for a Council Directive concerning the status of third-country nationals
who are long-term residents, COM/2001/0127 final, 13.3.2001 13
6. Proposal for a Council Directive, COM/2001/0386 final, on conditions of entry and
residence of third-country nationals for the purposes of paid employment and self-
employed economic activity of 11.07. 2001
7. Council Directive on the right to family reunification 2003/86/EC, 22.09.200314
8. Council Regulation (EC) No. 1030/2002 of 13.06.2002 laying down a uniform
format for residence permits of third-country nationals
9. Proposal for a Council Directive on the conditions of entry and residence of third-
country nationals for the purpose of studies, vocational training or voluntary service,
COM/2002/548 final, 7.10.2002
10. Council Regulation No. 859/2003 of May 2003 extending the provisions of
Regulation (EEC) No. 1408/71 and Regulation (EEC) No. 574/72 to nationals of
third countries who are not already covered by these provisions solely on the ground
of their nationality
11. Proposal for a Council Regulation amending Regulation (EC) 1030/2002 laying
down a uniform format for residence permits for third-country nationals, and
Proposal for a Council Regulation amending Regulation (EC) 1683/95 laying down
a uniform format for visas, COM/2003/0558 final, 24.9.2003.

2. Evolution of immigration policy at EU level – Towards an equal

treatment?
In contrast to the relatively wide EU legal corpus covering EU citizens’ social, political
and economic rights, there are few parallel provisions concerning third country
nationals (TCNs). It seems to us that the first-pillar measures of the EU constitutional
framework have attached high priority to EU nationals’ interests and rights, but
neglected those of TCNs.
The Tampere European Council stressed the necessity to adopt decisions on “the
approximation of national legislation on the conditions for admission and residence of
third country nationals based on a shared assessment of the economic and demographic
developments within the Union as well as the situation in the countries of origin”. 15 The
Conclusions did not specify how this policy should be implemented.
In the same vein, it also underlined in its paragraph 21 that:
A person who has resided legally in a Member State for a period of time to be
determined and who holds a long-term residence permit, should be granted in
that Member State a set of uniform rights which are as near as possible to
those enjoyed by EU citizens.

13
Official Journal C 240 E, 28/08/2001 P. 79-87. See also the new version of 24 July 2003, Brussels,
10501/1/03, MIGR 48.
14
Official Journal L 251/12, 3.10.2003.
15
See paragraph 20 of the Presidency Conclusions.
 TOWARDS A PROACTIVE IMMIGRATION POLICY FOR THE EU? | 5

It is true that some progress has been made in the achievement of a legal framework that
aims to diminish the differences between TCNs’ and EU citizens’ status. We need to
stress, for instance, the importance of two Directives – one insisting on equal treatment
irrespective of racial or ethnic origin and the other to combat racism and
discrimination.16 However, these are only the first steps in a long-term process.
This section assesses four key legal instruments affecting TCNs and compares them
with legislation governing the status of EU citizens:
1. Council Directive on the right to family reunification
2. Proposal for a Council Directive concerning the status of third-country nationals
who are long-term residents
3. Proposal for a Council Directive on conditions of entry and residence of third-
country nationals for the purposes of paid employment and self-employed economic
activity
4. Proposal for a Council Directive on the conditions of entry and residence of third-
country nationals for the purpose of studies, vocational training or voluntary service.

2.1 The Council Directive on family reunification – Does it confer a right?

The proposal for a Directive on the right to family reunification constituted the first of a
set of measures presented by the European Commission on TCNs after the entry into
force of the Amsterdam Treaty. 17 Discussion on the proposal lasted for four long years
before it was possible to reach agreement and formally adopt its key provisions on 22
September 2003.18
After the entry into force of the Amsterdam Treaty on 1 May 1999, Article 63(3) (a) of
the Treaty Establishing the European Community (TEC) became the legal basis to
harmonise this controversial policy issue. This provision formally requests the Council
to adopt measures, following the procedure referred in Article 67 EC Treaty, in the
areas of “immigration policy: a) conditions of entry and residence…including those for
the purpose of family reunion…”.
It is our opinion that family reunification provides a perfect example to show the
lacunae that exist between the rights conferred on TCNs and the nationals of the
member states. A high level of ‘disparity’ can be appreciated between the status of both
categories, as we will show looking at the wording of the recently adopted legal text.

16
These two Directives were initiated by DG Employment and Social Affairs; Directive 2000/43, OJ L
180 of 19.7.2000, implementing the principle of equal treatment between persons irrespective of racial or
ethnic origin, and Directive 2000/78, OJ L 303 of 2.12.2000, establishing a general framework for equal
treatment in employment and occupation.
17
The initial proposal dates from 1 December 1999, COM(1999) 638 final.
18
Council Directive on the right to family reunification 2003/86/EC of 22 September 2003, OJ L 251/12,
3 October 2003. See also the numerous different versions of the proposal for a Directive since 1999 in the
public register of the Council documents, Council of the EU
(http://register.consilium.eu.int/utfregister/frames/introfsEN.htm).
6 | APAP & CARRERA

Some remarks on the new Council Directive

Before analysing in detail some of the core aspects of the Directive, it is important to
note that there does not exist at the moment a harmonised concept of family either at
international or at European level. The UN Convention on Migrant Workers19 indeed
provides the most recent definition in Article 44,20 but none of the EU member states
has signed or ratified this instrument of public international law.
The current international and European legal sources providing for a family’s right to
live together as well as for the preservation of family unity are mainly: the Universal
Declaration of Human Rights – Article 16.1,21 the European Convention on Human
Rights (ECHR) – Articles 8 and 14,22 the European Court of Human Rights (ECtHR)
case law, 23 the Council of Europe’s Social Charter – Article 19,24 as well as the
European Convention on the Legal Status of Migrant Workers of 1977,25 among
others.26
At EU level, the Resolution on the harmonisation of national policies on family
reunification, adopted by the European immigration ministers in Copenhagen on the 1-2
June 1993,27 represented until recently the only existing governing measure in this area.
The Resolution, however, does not recognise the existence of a right to family
reunification. Additionally, this measure falls within the category of the so-called ‘soft
law’, and is therefore not legally binding on the EU member states.

19
Adopted by the UN General Assembly on 18 December 1990, and it entered into force on 1 July 2003.
20
Article 44 provides: “1. States Parties, recognising that the family is the natural and fundamental group
unit of society and is entitled to protection by society and the State, shall take appropriate measures to
ensure the protection of the unity of the families of migrant workers. 2. States Parties shall take measures
that they deem appropriate and that fall within their competence to facilitate the reunification of migrant
workers with their spouses or persons who have with the migrant worker a relationship that, according to
applicable law, produces effects equivalent to marriage, as well as with their minor dependent unmarried
children”.
21
Adopted and proclaimed by General Assembly resolution 217 A (III) of 10 December 1948. Article 16
provides: “ (3) The family is the natural and fundamental group unit of society and is entitled to
protection by society and the State”.
22
Article 8 of the ECHR says that “everyone has the right to respect for his private and family life, his
home and correspondence”. See Case C-60/00, Carpenter v. Secretary of State for the Home Department,
Judgment of 11 July 2002.
23
Indeed since 1985 the ECtHR’s case law provides the most important framework for protection of
TCNs on this concern. See for instance Jakupovic v Austria ECtHR 6 February 2003, and Al Nashif v
Bulgaria 20 June 2002.
24
529 U.N.T.S. 89, entered into force 26 February 1965.
25
Strasbourg, 24.11.1977. See also the Explanatory Report on the Convention, Council of Europe,
Strasbourg, 1978.
26
See the International Covenant on Civil and Political Rights, Article 23(1), adopted and opened for
signature, ratification and accession by General Assembly resolution 2200A (XXI) of 16 December 1966,
entry into force 23 March 1976. The International Covenant on Economic, Social and Cultural Rights,
Article 10 (1), adopted and opened for signature, ratification and accession by General Assembly
resolution 2200A (XXI) of 16 December 1966, entry into force 3 January 1976.
27
Doc. SN 2828/1/93 WGI 1497 REV 1.
 TOWARDS A PROACTIVE IMMIGRATION POLICY FOR THE EU? | 7

The proposal for Council Directive on the right to family reunification first reached
political agreement within the Council on 28 February 2003, and, as previously
mentioned, it was officially adopted in September 2003.28 In our view, the wording
presented within the final version of the Directive presents some substantial differences
and changes, which deserve to be highlighted, in comparison to the first text proposed
by the Commission in 1999. Moreover, generally speaking, the regime presented within
the Directive, which will have to be transposed into all the member states’ national
legislation no later than 3 October 2005, only represents the first stage necessary to
achieve the desired harmonisation on family reunification at EU level.
Looking specifically at some of the Directive’s provisions, Article 1 provides that the
main purpose of the legal act is:
to determine the conditions for the exercise of the right to family
reunification by third country nationals residing lawfully in the territory of
the member states.
At first sight it could appear that the Directive’s direct consequence would be a
‘significant improvement’ on this sort of ‘secondary immigration movement’.29 It is
striking to see how, on the one hand, however, the right to family reunification is not
recognised expressly in any of the proposal’s provisions, and on the other it leaves
considerable discretion in the hands of the member states as far as the conditions for the
exercise of this right are concerned, and thus not preventing the undesired ‘family
separation’ (see Cholewinski, 2002).
The Council Directive does not prevent the application of ‘more favourable provisions’
existing under the European Convention on the Legal Status of Migrant Workers, the
ECHR, European Social Charter as well as predated bilateral/multilateral agreements
with third countries. 30 The member states shall also have the possibility to adopt or
retain more favourable provisions.31 Furthermore, looking at the Explanatory
Memorandum, the UK, Ireland and Denmark, in accordance with Articles 1-2 of their
respective Protocols annexed to the Treaty on European Union and the TEC, are not
bound in any way by the Directive.
The final version of the Directive incorporates a new category/concept, in comparison
with the former versions of the proposal, to define its personal scope, i.e. ‘sponsor’.
Article 2 thus establishes that:
Sponsor means a third-country national residing lawfully in a Member State
and applying or whose family members apply for family reunification to be
joined with him/her.

28
See also the version of Council Directive on the right to family reunification, Brussels, 29 July 2003,
10502/2/03, REV 2, MIGR 49, Council of the European Union.
29
Family reunification is based on the movement of the primary migrant or recently called ‘sponsor’.
30
See Article 3.4.b of the Directive. There are some 30 international agreements that have been signed by
the European Community together with its member states and third countries purporting to grant rights to
TCN residents. For a study of these agreements, see Hedemann-Robinson (2001).
31
See Article 3.5 of the proposed Directive.
8 | APAP & CARRERA

The introduction of this category has indeed clear economic and financial connotations.
Article 3 provides that the Directive shall apply where the sponsor is residing lawfully
in a member state and is holding a residence permit issued by that member state for a
period of validity of one year or more. A new sentence has also been added in
comparison with the former wording of the proposal, according to which only those
TCNs who have “reasonable prospects of obtaining the right of permanent residence”
will be granted the right to apply, which means that those persons staying in the host
state temporarily and who have not “the prospect” of renewal will not have this
opportunity. 32 The “possibility” to grant family reunification to refugees, whose family
relationships started before their refugee status, is also provided by Article 9.33
These persons will have the opportunity to lodge an application for family reunification
when their respective family members are outside the territory of the member state.34
Also, it is interesting to see how the Council Directive refers now in its Article 5.3 to
the possibility for the application to be submitted when the family members are already
inside the host state.35
The requirements for the exercise of the right of family reunification, set out in Chapter
IV, Articles 6-8, are different in content from those concerning EU citizens. Thus, for
instance, under Article 6 it is provided that member states may reject an application for
entry and residence of family members, on grounds of “public policy, public security or
public health”. This Article is inspired by the Council Directive of 25 February 1964 on
the Co-ordination of special measures concerning the movement and residence of
foreign nationals which are justified on grounds of public policy, public security or
pubic health, 64/221/EEC.36 However we think that some differences may exist with
regard to the ‘nature’ and ‘content’ of the exceptions used in both measures. The text of
the Preamble of the Council Directive on family reunification provides now that “the
notion of public policy and public security covers also cases in which a third-country
national belongs to an association which supports the international terrorism, supports
such an association or has extremist aspirations”. 37 Also, Article 6 stipulates that “when
taking the relevant decision, the member state shall consider, besides Article 17, the

32
Article 3 stipulates that “This Directive shall apply where the sponsor is holding a residence permit
issued by a Member State for a period of validity of one year or more who has reasonable prospects of
obtaining the right of permanent residence, if the members of his/her family are third country nationals of
whatever status”.
33
Chapter V of the Directive, Article 9 (2) states that “Member States may confine the application of this
Chapter to refugees whose family relationships predate their entry”.
34
See Chapter III of the Directive, Submission and examination of the application. Article 5.3 says that
“The application shall be submitted and examined when the family members are residing outside the
territory of the Member State in which the sponsor resides”.
35
See new Article 5.3, “By way of derogation, a Member State may, in appropriate circumstances, accept
an application be submitted when the family members are already in its territory”.
36
See in relation to the public policy concept the judgement of the Court of 27 October 1977, Régina v
Pierre Bouchereau, Case 30-77. Also, interesting is the judgement of the Court of 25 July 2002,
“Mouvement contre le racisme, l’antisémitisme et la xénophobie” ASBL (MRAX) v Belgian State, C-
459/99 on one of the newest interpretations of Articles 1(2), 3(3) and 9(2) of the Council Directive
64/221/EEC.
37
See point 14 of the Directive’s Preamble.
 TOWARDS A PROACTIVE IMMIGRATION POLICY FOR THE EU? | 9

severity or type of offence against public policy or public security committed by the
family member, or the dangers that are emanating from such person”. This may lead, in
our opinion, to a broader character of the grounds for rejection of non-EU citizens,
applications for entry and residence of their family members.
Article 7 states that the applicant must provide evidence not only of accommodation,
but also of sickness insurance in respect of all risks to the host member state, for
him/her and every member of his/her family, as well as stable resources so not as to rely
on public funds.
Concerning family members of EU citizens who have not exercised their right to free
movement, they do not fall under the Directive’s scope. Therefore it seems that reverse
discrimination is kept intact. However, the situation of these persons will be dealt with
in a specific Directive on the rights of citizens of the Union and their family members to
move and reside freely within the territory of the member states, but it has not yet been
adopted.38 The adoption of this Directive will solve the existing gap between those EU
nationals who exercise their free movement rights and those who do not.

Set of Rights conferred under the Directive

The Council Directive presents a narrow concept of family39 by recognising only the
reunion of the sponsor’s spouse,40 the minor children below the age of majority41 and
not married of the sponsor and of his/her spouse, as well as those adopted of the sponsor
or/and the spouse when they have custody and the children are dependent on them. 42
Member states will have total discretion regarding – “may authorise the entry and
residence” – all further relatives, as for instance first-degree relatives in direct
ascending line who are dependent, the adult unmarried children as well as unmarried
partner.43

38
Amended proposal for a Directive of the EP and of the Council, on the rights of citizens of the Union
and their family members to move and reside freely within the territory of the member states, Brussels,
15.4.2003, COM(2003) 199 final.
39
The concept of family that can claim protection under the Directive is not so wide as the one provided
by international and European instruments. In addition in the ECtHR case Marckx v. Belgium, for
example, the Court recognised the ties between near relatives such as grandparents and grandchildren as
being included in family life, 27 April 1979, Serie A No. 31. Same-sex relationships may also be
protected, although under the rubric of private, rather than family, life. X and Y v. UK, European
Commission on Human Rights Admissibility Decision of 3 May 1983, Appl. No. 9369/81.
40
However, following the new Article 4.5, “in order to ensure better integration and to prevent forced
marriages Member States may require the sponsor and his/her spouse to be of a minimum age, and at
maximum 21 years, before the spouse is able to join him/her”.
41
The required age of majority will be set by the law of the particular member state. Also, it is striking to
see how Article 4.6 stipulates that “By way of derogation, Member States may request that the
applications concerning family reunification of minor children have to be submitted before the age of 15,
as provided for by its existing legislation on the date of the implementation of this Directive. If the
application is submitted after the age of 15, the Member States which decide to apply this derogation shall
authorise the entry and residence of such children on grounds other than family reunification”.
42
See Article 4.1 of the Council Directive.
43
See Article 4.2. See also the Judgment of the Court of 17 April 1986, State of the Netherlands v Ann
Florence Reed, Case 59/85, paragraph 30, which in relation to “community migrants” states that “…a
10 | APAP & CARRERA

In addition, the last paragraph of Article 4.1 must be criticised, as far as it stipulates
that:
By way of derogation, where a child is aged over 12 years and arrives
independently from the rest of his/her family, 44 the Member States may,
before authorising entry and residence under this Directive, verify whether
he or she meets a condition for integration provided for by its existing
legislation on the date of implementation of this Directive.
The expression “capacity” or “condition for integration” remains open to interpretation
by the member states, as far as it will be defined exclusively according to national
legislation. This provision may be considered as being contrary to international and
European set of rules which have defined the concept of minor and the special
protection that has to be granted to them. 45
It is also of interest to assess briefly the evolution, since the proposal was first presented
in 1999, of the concept of family and the categories of family members who shall or
may enjoy reunification together with the sponsor. The first version of the proposal
presented a broader personal scope by obliging the member states to authorise the entry
and residence of, among others, the following family members:
• Relatives in the ascending line of the applicant or his spouse or unmarried partner
who are dependent on them and have no other means of family support in the
country of origin; and
• Children of the applicant or his spouse or unmarried partner, being of full age, who
are objectively unable to satisfy their needs by reason of their state of health. 46

However, these two categories do not appear anymore as being of mandatory character
for the member states in the final version of the Council Directive. Instead member
states may, by law or regulation, authorise their entry and residence.47 It seems clear
that the scope of ratione personae has been tightened in the successive amendments and
final version of the Directive on family reunification. Also, the initial reference to
persons enjoying subsidiary protection has been omitted in the latest versions.

Member State which permits the unmarried companions of its nationals, who are not themselves nationals
of that Member State, to reside in its territory cannot refuse to grant the same advantage to migrant
workers who are nationals of other Member States”.
44
The new expression “and arrives independently from the rest of his/her family” was introduced in the
version of February 2003 by the Council of Ministers.
45
The Federal Republic of Germany represented the main supporter for this clause to be introduced into
the Council Directive. See, among many other legal instruments, the Convention on the Rights of the
Child, adopted and opened for signature, ratification and accession by General Assembly resolution
44/25, of 20 November 1989, entry into force 2 September 1990.
46
Former Article 5 of the Commission proposal of 1999.
47
See Article 4 of the Council Directive which establishes that “the Member States may, by law or
regulation, authorise the entry and residence, pursuant to this Directive and subject to the compliance with
the conditions laid down in Chapter IV, of the following family members: (a) first-degree relatives in the
direct ascending line of the sponsor or his or her spouse, where they are dependent on them and do not
enjoy proper family support in the country of origin; (b) the adult unmarried children of the sponsor or his
or her spouse, where they are objectively unable to provide for their own needs on account of their state
of health”.
 TOWARDS A PROACTIVE IMMIGRATION POLICY FOR THE EU? | 11

When one examines the status of EU citizens in this area, however, the rights conferred
to their family will be granted, “irrespective of their nationality and which is only
derivative of the original right conferred to the EU citizen involved, to the spouse and
descendants who are under the age of 21 years or are dependents, as well as dependent
relatives in the ascending line of the worker and his spouse”, following Article 10.1 of
the Council Regulation 1612/68 on freedom of movement for workers within the
Community as amended by Regulation 312/76, 15 October 1968. 48
Another aspect of the Directive that may be criticised is the period of time allotted the
member states to take the decision. At the present time, member states may take
between two and three years between the receipt of the application for family
reunification and the issuing of the pertinent residence permits for the family. 49 This
provision may contradict, among other international and European legal instruments, the
European Social Charter, because by specifying such a long period of time, the main
substance and aim of the right of family reunion, which is to make family life possible,
would be clearly undermined.50 To allow member state authorities to spread the
decision taken over several years constitutes a restrictive measure, which should be
addressed by reducing the period of time to one year, as the initial proposal from the
Commission recommended in its Explanatory Memorandum.
Article 13, which deals with entry and residence of family members, provides that after
the application for family reunification has been accepted, the member state may grant
to the family members a residence permit of at least one-year validity, whose duration
will not go beyond the expiration of the sponsor’s permit.
It is equally interesting to see how in Article 18 of the Council Directive it is provided
that “the Member states shall ensure that the sponsor and/or the members of his/her
family have the right to mount a legal challenge where an application for family
reunification is rejected or a residence permit is either renewed or is withdrawn or
removal is ordered”.

48
On the interpretation of Community Law on freedom of movement of persons and the right of a TCN
who is the spouse of an EU citizen to reside in the EU, see the judgment of the Court of 23 September
2003, Secretary of State for the Home Department v Hacene Akrich, Case C-109/01. See in particular
paragraph 50, which reads: “in order to benefit in a situation such as that at issue in the main proceedings
from the rights provided in Article 10 of Regulation No 1612/68, the national of a non-member state, who
is the spouse of a citizen of the Union, must be lawfully resident in a member state when he moves to
another member state to which the citizen of the Union is migrating or has migrated”.
49
Article 8 of the Directive provides: “By way of derogation, where the legislation of a member state
relating to family reunification in force on the date of adoption of this Directive has regard for its
reception capacity, the member state may provide for a waiting period of no more than three years
between submission of the application for family reunification and the issue of a residence permit to the
family members”.
50
See also Paragraph 61 of the Judgment of the Court of 23 September 2003, Secretary of State for the
Home Department v Hacene Akrich, Case C-109/01, which provides an interesting and forward-looking
interpretation by the European Court of Justice of the right to respect family life provided by the
European Convention for the Protection of Human Rights and Fundamental Freedoms of 1950, “…, the
competent authorities of the first-mentioned Member State, in assessing the application by the spouse to
enter and remain in that Member State, must none the less have regard to the right to respect for family
life under Article 8 of the Convention,…”.
12 | APAP & CARRERA

The precise limits of the expression ‘legal challenge’ are not fully provided by the
Council Directive, as the member states are the competent authority to establish the real
meaning and extent of that concept.
Table 1 presents the more important differences and similarities that exist between the
status of foreigners/TCNs and EU citizens, as far as the issue of family reunification is
concerned.

Table 1. Main differences and similarities between the status of family members of
TCN a and EU citizensb
Third Country Nationals EU Nationals
Eligibility

Criteria for eligibility Criteria for eligibility

Member states are obliged to accept the Following Article 10, Member states are
sponsor’s: obliged to accept:
• Spouse and minor children (below the
age of majority set by the law of the • Spouse and their descendents who
Member State and not been married, as are under the age of 21 years or are
well as taking into consideration the dependents.
wording provided in Article 4.1.c). See • Dependent relatives in the
also Article 4.6. ascending line of the worker and his
spouse.
At the discretion of member states: Article 4.2
• First-degree relatives in the direct At the discretion of member states:
ascending line of the person applying • Any member of the family not
for reunification or his/her spouse, entering the above categories if
being dependent on them. dependent on the worker.

• The adult unmarried children of the

sponsor or his/her spouse, where they
are objectively unable to provide for
their own needs on account of their state
of health.
• The unmarried partner, being a third
country national, with whom the
sponsor is in a duly attested stable long-
term relationship, or of a third-country
national who is bound to the applicant
by a registered partnership. Member
states may also decide whether
registered partnerships are to be treated
equally as spouses. In the event of
polygamous marriage the member state
shall not authorise the reunification of a
further spouse than the one who is
already living with him in the territory
of the host state.
 TOWARDS A PROACTIVE IMMIGRATION POLICY FOR THE EU? | 13

Access to education, employment & training Access to education, employment &

training
Article 14, the family of the sponsor shall be
entitled to have access to education, to Article 12, under the same conditions as the
employment and self-employed activity, to nationals of the State of destination. See
vocational guidance, initial and further training also Article 11 of the Regulation, the spouse
and retraining. and those of the children who are under the
However, member states may restrict access to age of 21 years or dependent on him shall
employment or self-employed activity by have the right to take up any activity as an
relatives in the ascending line or children above employed person throughout the territory of
the age of majority to whom Article 4.2 applies. that same State, even if they are not
member states will also decide the conditions nationals of any member state.
under which family members will exercise an
employment or self-employed activity.

Waiting Period Waiting Period

Article 8 provides that the member states may Family reunification will take place
require the sponsor to have stayed lawfully on immediately after all the necessary
their territory for a period not exceeding two conditions are met – no waiting period
years, before having his/her family. By way of exists.
derogation, where the legislation of a member
state relating to family reunification in force on
the date of adoption of this Directive as regard
for its reception capacity, the member state may
provide for a waiting period of no more than
three years between submission of the
application for family reunification and the
issue for residence permit to the family
members.

Grounds for rejection Grounds for rejection

Article 6, The member state may reject an Council Directive of 25 February 1964 on
application for entry and residence of family the Co-ordination of special measures
members on grounds of public policy, domestic concerning the movement and residence of
security or public health. The member states foreign nationals which are justified on
shall consider the ‘severity’ or type of offence grounds of public policy, public security or
or the dangers emanating from the person. In the pubic health, 64/221/EEC.
Explanatory Memorandum it is further
explained that the notion of public policy may
cover a conviction for committing a serious
crime and cases in which a TCNs belongs to an
association which supports terrorism. The same
reasons may be used to justify the renewal of
the residence permit, which may not be
withheld and removal from the territory may not
be ordered by the competent authority of the
member state concerned on the sole grounds of
illness or disability suffered after the issue of
the residence permit.
14 | APAP & CARRERA

Conditions to be fulfilled Conditions to be fulfilled

Article 7, the applicant must provide evidence Article 10.3, ‘The worker must have
that she/he has: accommodation regarded as available for his family housing considered
normal for a ‘comparable family’ in the same as normal for national workers in the
region and which meets the general health and region where he is employed’, no
safety standards in force in the Member State discrimination. Neither proof of good
concerned (proof of good health); sickness health, nor sickness insurance is required.
insurance in respect of all risks in the Member The family must not be a burden to public
State concerned for himself and the members of funds. However since the Cristini Case
his family; stable resources which are higher 32/75 (1975) ECR 1085, family members
than or equal to the level of resources below could claim social advantages on the basis
which the Member states may grant social of their relationship with the worker. No
assistance. Additionally, Member states may requirement of integration is provided.
‘require’ TCNs to comply with integration
measures, in accordance with national law.

Grant of autonomous residence permit Grant of autonomous residence permit

Article 15 stipulates that if the family It depends on the law of the Member State
relationship still exists the family members shall involved. Normally the family will acquire
be entitled to ask for an autonomous residence without any problem a permanent residence
permit, at the latest after five year of residence. permit in their own name.

Other requirements Other requirements

In chapter III of the Directive, Article 5 says This is not required.

that the application (accompanied by
documentary evidence of the family
relationship) shall be submitted when the family
members are still outside the territory of the
member state in which the applicant resides (By
way of derogation, a member state may accept
an application be submitted when the family
members are already in its territory).
As far as the waiting period is concerned, the
same Article states that a response shall be
given in any event no later than nine months
from the date of application. Under exceptional
circumstances, linked with the complexity of the
application, the time period may be extended
a
Council Directive on the right to family reunification 2003/86.
b
Regulation 1612/68 on freedom of movement for workers within the Community as amended by
Regulation 312/76, among others.
 TOWARDS A PROACTIVE IMMIGRATION POLICY FOR THE EU? | 15

2.2 Towards an equal status between EU nationals and third-country

nationals who are long-term residents
The Tampere European Council called for the approximation of the legal status of
TCNs to that of EU nationals. 51 It also underlined the importance of conferring on those
persons residing legally in the EU and holding a long-term residence permit a uniform
set of rights “as near as possible to the EU citizens”, as well as the objective that “long-
term legally resident third-country nationals be offered the opportunity to obtain the
nationality of the member states in which they are residents”.52
As mentioned previously TCNs have practically been invisible within European
Community law. The majority of references to individual rights are exclusively intended
to reinforce the rights of EU citizens (see Hailbroner, 2000). The introduction of the
notion of EU citizenship in the Maastricht Treaty enhanced even further this concern. 53
Citizenship and, more importantly, the rights related to it, are linked directly to every
person holding the nationality of a member state,54 and not to the category of TCNs or
aliens.
In addition, most TCNs only had residence or other rights in the member state where
they had been admitted, but they did not have the right to move to a second member
state within the European Union unless they belonged to the group of privileged non-
EU citizens who held derived rights – also referred to as indirect or secondary rights.55
In other words, only those enjoying a legally recognised relationship with an EU citizen
(for instance, family ties) would have the opportunity to benefit from the rights
conferred under European Community law (see Barret, 2003).
In the belief that there should be a common status of long-term resident in the whole
EU, the Commission presented a proposal in March 2001,56 having as a legal basis
Article 63.4 TEC which states that “the Council shall adopt…measures defining the
rights and conditions under which nationals of third countries who are legally resident
in a Member state may reside in other Member states”.

51
See Paragraph 21 of the Presidency Conclusions.
52
See Paragraph 18 of the Presidency Conclusions, “The European Union must ensure fair treatment of
third country nationals who reside legally on the territory of its Member States. A more vigorous
integration policy should aim at granting them rights and obligations comparable to those of EU citizens.
It should also enhance non-discrimination in economic, social and cultural life and develop measures
against racism and xenophobia”.
53
Articles 17-22, consolidated version of the Treaty Establishing the European Community; Article 18:
“Every citizen of the Union shall have the right to move and reside freely within the territory of the
Member States….”
54
To learn more about the relationship between citizenship and nationality of the member states, see De
Groot (1998).
55
The concept of derived rights has been used by the European Court of Justice in several instances. See
for instance, Case 40/76, Kermaschek v. Bundesanstalt für Arbeit [1976] ECR 1669, Case C-243/91,
Belgian State v. Taghavi, [1992] ECR I-4401. See also the opinion of the Advocate General La Pergola in
Case C-356/98, Kaba v. Secretary of State for the Home Department, [200] ECR I-2623.
56
Proposal for a Council Directive concerning the status of third-country nationals who are long-term
residents, COM/2001/0127 final, CNS 2001/0074. Council WP meetings and SCIFA meetings ongoing;
Discussed at JHA Council 14/15 October 2002, and finally agreed politically at JHA Council 5/6 May
2003.
16 | APAP & CARRERA

The Seville European Council urged the speeding up the implementation of the aspects
presented at Tampere for the creation of an area of freedom, security and justice, and set
a deadline for the adoption of this particular Directive. The Council reached political
agreement ‘on time’ after long negotiations on the proposal at its 2514th meeting held in
Luxembourg.57
Subsequently, the legislative proposal was modified on July 2003 and thus presented at
the Thessaloniki European Council in the summer of 2003, but it has not been formally
adopted.

Analysis of the core points of the proposal on the status of third-country

nationals who are long-term residents
This assessment is based on the last version of the initiative politically agreed within the
Council of the European Union on July 2003.58 The differences between the former and
the recent version of the proposal merit special attention. Before evaluating whether the
initiative has achieved the goals established at Tampere, it is necessary to assess its
scope. One is first struck by the fact that the former reference to a right to reside in other
member states has been omitted within the current proposal. 59 The new wording
establishes that the Directive will determine ‘the terms of residence’ in member states
other than the one that conferred the long-term resident status.60 Therefore, it remains
highly uncertain whether it truly confers a right of free movement to those meeting the
requirements for obtaining the long-term resident’s EC residence permit provided by
Article 8 of the proposal.
As far as the scope of ratione personae is concerned, one of the positive elements of the
first proposal was the broad scope of persons who could qualify for the status. However,
the actual text stipulates that the Directive will exclusively apply to those TCNs residing
legally on the territory of an EU member state for at least five years.61 It will thus
exclude the following category of persons:
• Students and those following vocational training;

57
2514th Council Meeting JHA, Luxembourg, 5-6 June 2003, 9845/03 (Press 150).
58
Proposal for Council Directive concerning the status of third-country nationals who are long-term
residents, 10501/1/03, REV 1, MIGR 48, Interinstitutional File: 2001/0074 (CNS), Brussels, 24 July
2003. See also the previous version of the proposal of 7 July 2003, Brussels, Council of the European
Union, Doc. 2001/0074, MIGR 48.
59
The former Article 1 of the Proposal Com/2001/0127 final, provided that the Directive would
determine ‘(b) the terms on which third-country nationals enjoying long-term resident status have the
right of residence in member states other than the one which conferred that status on them’. Additionally,
the new version of Chapter III, it is now tiled ‘Residence in the other member state’, omitting again the
reference to a right of residence.
60
See new Article 1, Subject matter, which says that the Directive determines “(b) the terms of residence
in member states other than the one which conferred long-term status on them for third-country nationals
enjoying that status”.
61
Article 3, Scope, “This Directive applies to third-country nationals residing legally in the territory of a
member state”, as well as Article 4, Duration of residence, “Member states shall grant long-term resident
status to third-country nationals who have resided legally and continuously within its territory for five
years immediately prior to the submission of the relevant application”.
 TOWARDS A PROACTIVE IMMIGRATION POLICY FOR THE EU? | 17

• The beneficiaries of temporary or subsidiary forms of protection;

• Refugees, and those who have applied for the recognition of this status;
• Temporary residents; and
• Those holding diplomatic or consular protection.

The persons to whom the Directive may apply are therefore fewer in number than what
may initially appear at prima facie. Also, the proposal does not clarify the grounds for
the exclusion of all these categories. The recent inclusion of refugees as falling outside
the personal scope may be considered an unfortunate political choice.
The main goal of the measure is “to grant an EC status of long-term residents to TCNs
who have legally resided for 5 years” in the territory of a member state; it does not
intend however to replace existing national legislation on long-term resident status.
Indeed, looking at the wording of the Directive, new Article 4,62 the only obligation
incurred by the member states is to grant the status to those TCNs who have resided
legally for a period of five years immediately prior to the submission of the relevant
application.
The proposal also stipulates, in Article 4(2), that periods of absence shorter than six
consecutive months and that do not exceed in total ten months within the period of five
years, may not interrupt the period of residence and will be included in the final
calculation. The new text, however, leaves to member states’ discretion the exclusion
from calculation of the periods of residence consisting of:
• Studies or vocational training – half of the periods of residence – may be taken into
account for the calculation as far as the person involved has acquired a title of
residence which “will enable him/her to obtain a long-term resident status”.
• Periods of absence for employment purposes, including cross-border services, may
be also taken into consideration by the member states.
An additional requirement is established within Article 4 regarding the obligation by the
person involved to prove that s/he has “stable resources” and a “sickness insurance” in
order not to become a burden for the particular EU member state.63 He/she must also
present evidence of “appropriate accommodation”.64 Article 5 has introduced a new
paragraph dealing with the integration conditions of the migrant as an additional
requirement for the acquisition of the status. There seems to be no clarification about
the real limits of this requirement, leaving wide room for discretion to the member
states to define, through their respective national immigration laws, the real meaning
and content of the conditions that need to be fulfilled for the effective integration of
these persons within their societies. This condition also appears in Article 15(3), by
saying that “Member states may require third-country nationals to comply with
integration measures, in accordance with national law”.

62
Article 4, Duration of residence, “Member States shall grant long-term resident status to third-country
nationals who have resided legally and continuously for five years immediately prior to the submission of
the relevant application.”
63
New Article 5 of the Directive, Conditions for acquiring long-term resident status.
64
New version of Article 7.1, which concerns the acquisition of long-term resident status.
18 | APAP & CARRERA

It may be also remarked that the new text of the proposal has omitted inappropriately
the reference to the non-discrimination clause, which was provided by the old Article
4.65 The main justification may have been the adoption of the two Council Directives on
implementing the principle of equal treatment between persons irrespective of racial or
ethnic origin, and the one establishing a general framework for equal treatment in
employment and occupation. However, as a matter of fact, at the moment only the UK
and France have transposed into their domestic legislation the Directive on equal
treatment irrespective of racial and ethnic origin, even though the deadline for
implementation was 19 July 2003.66 This shows again a worrying lack of political will
towards these policy issues,67 as well as a high necessity to double protect these
fundamental concerns which represent the bases for equal treatment.
Another change in the newly proposed text is contained in Article 6 – Public policy and
public security. Under the current wording, “Member states may refuse to grant long-
term resident status on the grounds of public policy or public security”. In that concern
two main changes may be perceived in comparison to the former version: first, the
former categories of public order or domestic security do not appear in the new
language used. And second, the member states will examine the “severity or type of
offence against public policy or public security, or the danger that emanates from the
person concerned”. 68 This new provision follows the same wording as the one provided
in the Directive assessed above on the right to family reunification. It is also worrying to
see once again the wide room of discretion given to the member states authorities to
determine whether a particular person may constitute or not a “threat or danger” to
public security/policy.
Article 7 of the new proposal needs special consideration. It stipulates the obligation by
the specific competent national authorities to notify the applicant of the decision taken
“as soon as possible” and “in any event” no later than six months from the date on
which the application was lodged. Although the final version of this Article may be
welcome in some respects, it is unlikely that the national authorities will take the final
decision in such a short term. This shortcoming may be exacerbated in that any punitive
consequences of taking a non-proportional length of time in reaching a decision will be
determined exclusively by the specific national legislation of the member state involved.
If a person fulfils all the above-mentioned requirements s/he will be granted a long-term
resident’s EC residence permit following Article 8. The new period of validity of the

65
Former Article 4 stated that ‘The Member State shall give effect to the provisions of this Directive
without the discrimination on t he basis of sex, race, colour, ethnic or social origin, genetic characteristics,
language, religion or beliefs, political or other opinions, membership of a national minority, fortune, birth,
disabilities, age or sexual orientation’.
66
Article 16 of the Council Directive 2000/43/EC of 29 June 2000, implementing the principle of equal
treatment between persons irrespective of racial or ethnic origin.
67
Spain, Germany, Greece and Luxembourg in particular have shown a major reluctance to implement
this Directive within their respective national legislations.
68
See also paragraph 2 of Article 6 which stipulates that “the refusal referred to in paragraph 1 shall not
be founded on economic considerations”.
 TOWARDS A PROACTIVE IMMIGRATION POLICY FOR THE EU? | 19

residence permit has been dramatically reduced from ten years to five years.69
Additionally, it will be renewable only upon submission of a new application by the
person involved, and not automatically. 70
Article 9 – Withdrawal or loss of status – establishes that member states shall withdraw
long-term resident status when it has detected one of the following circumstances:
• Fraudulent acquisition of the status;
• Expulsion measure based on Article 12 of the proposal. The new categories of
public security, and specifically public policy, have been also introduced within this
provision. These grounds seem to be wider than the previous public order or
domestic security grounds used in the former version. This is further exemplified by
the national authorities’ discretion to withdraw the status even though the threat to
public policy is not a reason for expulsion within the meaning of Article 12;71
• Absence from the territory for a duration of twelve consecutive months. Member
states may not consider that period of absence as a ground for the withdrawal/loss of
status;72 and
• Acquisition of the status pursuant to Article 23, which deals with the acquisition of
the long-term resident status in a second EU member state.73

Other critical aspects within the Directive’s scope and contents

Although adoption of the Directive would represent beneficial progress towards
achievement of an “equal treatment status”, this measure seems still to leave some
critical questions open. First, the long-term resident’s EC residence permit and the
rights it confers are confined to the particular member state in which the migrant has
been legally residing for a duration of five years. Therefore, the residence permit cannot

69
Article 8.2 reads as follows, “Member States shall issue a long-term resident’s EC residence permit to
long-term residents. The permit shall be valid at least for five years; it shall, upon application if required,
be automatically renewable on expiry”.
70
See also new Article 9.6 in which it is provided that the expiry of a long-term resident’s EC residence
permit shall in no case entail withdrawal or loss of long-term status. The resident permit will follow the
patterns provided by the Council Regulation (EC) No. 1030/2002, laying down a uniform format for
residence permits for third-country nationals, of 13 June 2002, OJ L 157, 15.6.2002, and the forthcoming
Proposal for a Council Regulation amending Regulation (EC) 1030/2002, COM/2003/0558 final,
24.9.2003.
71
Article 9.3, stipulates that “Member State may provide that the long-term resident shall no longer be
entitled to maintain his/her long-term resident status in cases where he/she constitutes a threat to public
policy, in consideration of the seriousness of the offences he/she committed, but such threat is not a
reason for expulsion within the meaning of Article 12”.
72
Article 9.4, further provides that a six-year period of absence will represent the loss of the status, even
though the member states will (may) have the possibility to maintain this status.
73
Article 23 states that “1) Upon application, the second member state shall grant long-term residents the
status provided for by Article 7, subject to the provisions of Articles 3, 4, 5 and 6. The second member
state shall notify its decision to the first member state. (2) The procedure laid down in Article 7 shall
apply to the presentation and examination of applications for long-term resident status in the second
member state. Article 8 shall apply for the issuance of the residence permit. Where the application is
rejected, the procedural guarantees provided for by Article 10 shall apply”.
20 | APAP & CARRERA

be used in a second EU member state if that status is not also granted there.74 Article 15
of the proposal stipulates that after a period of three months since entry to the territory
of a second member state, the person involved will have to follow again the same
required administrative procedure in order to check whether s/he fulfils the conditions
contained in Article 15 to receive a residence permit in that state.75 It is unfortunate that
the competent national authorities of the second member state will have a further period
of four months to process the application from the date it is lodged.76 It seems to us that
the length of waiting time since the person first entered the territory of the second
member state until the final decision is actually taken is too long, and it would be highly
desirable to shorten this period. Also, in point three of same Article the requirement to
comply with integration measures according to the national law of the second member
state has again been introduced.77
Second, after having received the residence permit, Article 21 provides that the person
will enjoy an “equal treatment” similar to the one s/he had within the first state’s
territory, following Article 11 of the proposal. However, the current wording of the
latter Article needs to be evaluated carefully. Although Article 11 states that long-term
residents shall enjoy equal treatment in a number of areas,78 member states have the
possibility nevertheless to restrict this equality in a number of instances:
1) Limitations having as a basis public policy and public security considerations
covered by national provisions. These factors will apply, for example, to the free
access to the totality of the territory of the state, freedom of association and
membership to organisations of specific occupations;
2) Concerning social protection and assistance falling outside core benefits;
3) Access to employment and/or self-employed activities where these posts are
reserved to nationals of the state, EU citizens and EEA nationals. Thus,
discrimination on grounds of nationality is kept intact as regards non-EU citizens in
comparison to the situation of European Community migrants to whom apply
Article 12 TEC and the case law emanating thereof and the European Court of
Justice (ECJ);79 and

74
See the current version of Chapter III of the Directive, entitled “Residence in the other member states”,
Articles 14-23.
75
This article establishes that “member states may require the persons concerned to provide evidence that
they have: (a) stable and regular resources…(b) sickness insurance…”.
76
Article 19, Examination of applications and issue of residence permit.
77
Integration measures will not be applicable to those persons who had already complied with these
conditions in order to obtain the long-term resident status, but the requirement to attend language courses
will be still necessary following Article 15(3).
78
These being: access to employment and self-employment activities, education and training (including
study grants), recognition of diplomas and other qualifications, social security, social assistance and
social protection as defined by national law, tax benefits, access to goods and services, freedom of
association and free access to the entire territory of the member state.
79
Article 12 TEC states: “Within the scope of application of this Treaty, and without prejudice to any
additional provisions contained therein, any discrimination on grounds of nationality shall be prohibited”.
See Case 36/74, Walrave and Koch, [1974] ECR 1405, [1975] 1 CMLR 320, in which it was held that
Article 39 TEC provided nationals of the member states with rights that are directly effective before
national courts. Also Case 167/73, Commission v. French Republic, [1974] ECR 359, [1974] 2 CMLR
 TOWARDS A PROACTIVE IMMIGRATION POLICY FOR THE EU? | 21

4) Finally, concerning education (including study grants) and vocational training,

social security, social assistance and social protection, tax benefits, access and
supply of goods and services made available to the public and to procedures for
obtaining housing, as well as freedom of association may also be restricted “where
the registered or usual place of residence of the long-term resident, or that of family
members for whom s/he claims benefits, lies within the territory of the member state
concerned”.80 The exact meaning of this paragraph is far from being clear and
transparent.

On reviewing the above points, it would not be easy to argue that the proposal confers a
“true equal treatment” in comparison with EU citizens, either in the member state where
the application was first lodged, or in the second state where the long-term resident may
move and reside at a later stage. This provision should be improved and amended
towards a closer status to that of EU citizens.
Third, it is surprising to see how Article 18 – Public Health – introduces the possibility
by a member state to impose a medical examination for those “persons to whom this
Directive applies”, 81 as well as the possibility to refuse applications of persons (or their
families) who constitute a threat to the public health, when this is not precisely a pre-
condition for EU citizens moving within the EU.
Fourth, the Directive does not guarantee in any way that a homogeneous EC status of
long-term resident will exist throughout the European Union. Each of the member states
may keep their bilateral agreements with third countries82 or more favourable legislation
concerning specific TCNs even after this Directive is implemented in their legal
system. 83 Therefore, all the association and cooperation agreements adopted under
Articles 308 and 310 will remain fully applicable (see Apap, 2002). Thus, for instance,
the Association Agreement with Turkey and the Decisions of the Association Council
EEC-Turkey, as well as the existing Maghreb Cooperation agreements will be
applicable even when the Directive will be transposed to national law (see Groenedijk,
2001). It also appears that the legal provisions presented do not confer any further direct
obligation on the member states in the more important issues. The Directive does not
seem to intend to set up a higher set of standards or to replace the existing national
legislation on long-term resident status.

216 which deals with prohibition of discrimination on the grounds of nationality in the field of
employment, and in which the ECJ held that any conflicting national measure will automatically be
rendered inapplicable. See also, among others, Joined Cases C-92/92 and C-326/92 Phil Collins and
Others [1993] ECR I-5145.
80
Paragraph 2, Article 11.
81
Article 18(4), “A Member State may require a medical examination, for persons to whom this Directive
applies, in order to certify that they do not suffer from any of the diseases referred to in paragraph 2. Such
medical examinations, which may be free of charge, shall not be performed on a systematic basis”.
82
These being for instance the Association Agreement with Turkey, the Euro-Med Agreements with
Tunisia and Morocco, etc.
83
Article 13 (former Article 14) “Member States may issue residence permits of permanent or unlimited
validity on terms that are more favourable than those laid down by this Directive. Such residence permits
shall not confer the right of residence in the other Member States as provided by Chapter III of this
Directive”.
22 | APAP & CARRERA

Fifth, Article 10 covers the procedural safeguards against a decision rejecting the
issuing or withdrawal of the status. The rights to appeal against expulsion and the
procedural safeguards in general for the migrant involved, as well as his/her respective
family members are not necessarily as strong as those applicable to EU nationals. As set
out above, it appears that in the whole package of Commission proposals on TCNs the
member states have too much discretion as regards the grounds on which expulsion may
be applied – mainly the one concerning public policy. A clear statement on the
possibility to have access to appeal should have been included in the proposed legal
text. Article 10 stipulates that “the person concerned shall have the right to mount a
legal challenge in the member state concerned”. However, the real meaning of legal
challenge is not clarified in the proposal; it is thus certain that it will be defined at a later
stage by the precise member state in which the application has been lodged. However,
to compare with the EU citizens’ situation, consider that the Council Directive on the
co-ordination of special measures concerning the movement and residence of foreign
nationals which are justified on grounds of public policy, public security or public
health84 provides, in Articles 8 and 9, the procedural/judicial remedies available to
them, including expressly the right of appeal. Some scholars have argued that a future
possible solution to that gap would be given by the European Court of Justice.The ECJ
has recognised the existence of the right to a fair trial under European Community Law,
independently of the European Convention of Human Rights,85 in the cases Heylens86 as
well as Johnston.87 Therefore, through a future interpretation of those Articles dealing
with judicial remedies, the ECJ could broaden the scope/content of the rights conferred
on the TCNs by the proposals. Thus, even though the proposed Directive(s) do(es) not
allude expressly to the right of appeal, TCNs may nevertheless have this possibility in
the future by claiming that right before the ECJ.
Sixth, the main legal provisions of the Directive should be based to a greater extent on
the international instruments that already existed on the issue. 88
Finally, those migrants not fulfilling the requirement of five years residence remain
under the scope of the national immigration laws of the member states. A harmonised
legal framework providing for their protection needs to be agreed at EU level as soon as
possible. Thus we can conclude that once again the desired equal treatment agreed at
Tampere has not been met by this proposed Directive. It does not go far enough in order
to guarantee a comparable treatment between TCNs and EU citizens, and it leaves too
much room for member states’ discretion.

84
Council Directive of 25 February 1964, 64/221/EEC, OJ Sp. Ed. 1964, No. 850/64, p. 117.
85
The European Convention on Human Rights, Rome, 4 November 1950.
86
Judgement of the Court of 15 October 1987, Union Nationale de Entraîneurs et cadres techniques
professionnels du football v Georges Heylens and others, Case 222/86.
87
Judgement of the Court of 15 May 1986, Marguerite Johnston v. Chief Constable of the Royal Ulster
Constabulary, Case 222/84.
88
These being the ECHR, the ECtHR case law, the International Labour Organisation (ILO) Convention
No. 143, the Social Charter of 1961, the UN Convention on the Protection of the Rights of all Migrant
Workers and Members of their Families, etc.
 TOWARDS A PROACTIVE IMMIGRATION POLICY FOR THE EU? | 23

Table 2. Comparison between the rights associated with the long-term resident status of
Third country nationals and EU citizens.

Third country nationals EU citizens

Proposal for Council Directive concerning Council Regulation 1612/68/EEC on freedom of
the status of third-country nationals who are movement for workers within the Community, and the
long-term residents. Council Directive 68/360/EEC on the abolition of
restrictions on movement and residence within the
Community for workers of Member states and their
families, among other secondary legislation.
Proposal for a Directive on the rights of citizens of the
Union and their family members to move and reside
freely within the territory of the Member states,
2003/199.89

Scope Scope
The Directive establishes ‘(a) the terms for Freedom of movement and of residence for Union
conferring and withdrawing long-term citizens - Articles 12, 14, 17, 18, 39, 43 and 49 of the
resident status; and (b) the terms of residence Treaty Establishing the European Community.
in Member states other than the one which
conferred long-term resident status. Article 4 of the Council Directive 68/360/EEC states
Article 3, Personal Scope, ‘This Directive that member states shall grant the right of residence in
applies to third-country nationals residing their territory to the persons referred to in its Article 1,
legally in the territory of a Member State’ these being EU citizens and their family members.

Procedure to be granted with a Long-term Procedure to be granted with a Residence Permit for
residents’ EC residence permit a National of a Member State of the EEC
It will be granted upon acquisition of long- Articles 4 -9 of the Council Directive 68/360/EEC,
term resident status. Article 4, Duration of which provides that in order to be granted with the so-
residence, ‘Member states shall grant long- called ‘Residence Permit for a National of a Member
term resident status to third-country nationals State of the EEC’, they will be required to produce a
who have resided legally and continuously series of documents which are specified in paragraph 3
within its territory for five years immediately of Article 4. The completion of these formalities ‘shall
prior to the submission of the relevant not hinder the immediate beginning of employment
application’. under a contract concluded by the applicants’ (Article
5).

89
We will carry out the comparison looking a the Amended Proposal for a Directive of the European
Parliament and of the Council on the rights of citizens of the Union and their family members to move
and reside freely within the territory of the Member States, COM(2003) 199 final, Brussels, 15.4.2003,
2001/0111 (COD), which would lead to the replacement and complement the former following European
legislative texts: Council Regulation (EEC) No 1612/68 of 15 October 1968 on freedom of movement for
workers within the Community, Council Directive 68/360/EEC of 15 October 1968 on the abolition of
restrictions on movement and residence within the Community for workers of Member States and their
families, Council Directive 73/148/EEC of 21 May 1973 on the abolition of restrictions on movement and
residence within the Community for nationals of Member States with regard to establishment and the
provision of services, Council Directive 90/364/EEC of 28 June 1990 on the right of residence, Council
Directive 90/365/EEC of 28 June 1990 on the right of residence for employees and self-employed persons
who have ceased their occupational activity, and Council Directive 93/96/EEC of 29 October 1993 on the
right of residence for students.
24 | APAP & CARRERA

Procedure to be granted (continued) Procedure to be granted (continued)

Article 7 1. ‘To acquire long-term resident Looking at the new wording under the Proposal for
status, the third-country national concerned Directive 2003/199, establishes in its Article 3, that
shall lodge an application with the competent ‘This Directive shall apply to all Union citizens who
authorities of the Member states in which s/he move to or reside in an Member State of the Union
resides. The application shall be accompanied other than that of which they are a national and to
by documentary evidence to be determined by their family members as defined in point 2 of Article 2
national law that s/he meets the conditions set who accompany or join them’. Thus, no residence
out in Articles 4 and 5 as well as, if required, permit, visa or equivalent may be imposed to EU
by a valid travel document or its certified citizens (only valid identity card or passport).
copy. 2. The competent national authorities However, Member states may impose an administrative
shall give the applicant written notification of formality which may consist in a registration for those
the decision as soon as possible and in any EU citizens willing to reside for more than six months
event no later than six months from the date (See Chapter III of the Proposal).
on which the application was lodged. In
exceptional circumstances linked to the As far as the Right of permanent residence, Chapter IV
complexity of the examination of the of the new Proposal for Directive 2003/199, and in
application, the time limit referred to may be particular Article 14.1 says that ‘Union citizens who
extended. have resided legally for a continuous period of four
years in the host Member State shall have the right of
permanent residence there. This right shall not be
subject to the conditions provided for in Chapter III’.

Requirements to be fulfilled Requirements to be fulfilled

Article 5, Conditions for acquiring long-term The new Proposal for Directive establishes in Article 7
resident status, 1. Member states shall require the conditions that EU citizens have to fulfill in order
third-country nationals to provide evidence to reside for a period longer than six months in the
that they have, for themselves and for territory of another Member State. Thus, ‘All Union
dependent family members: a) stable and citizens shall have the right to reside within the
regular resources which are sufficient to territory of another Member State for a period of
maintain himself/herself and the members of longer than six months if they: a) are engaged in
his/her family, without recourse to the social gainful activity in an employed or self-employed
assistance system of the Member State capacity or are recipients of services; or b) have
concerned. Member states shall evaluate these sufficient resources for themselves and their family
resources by reference to their nature and members not to become a burden on welfare assistance
regularity and may take into account the level in the host Member State during their stay and have
of minimum wages and pensions prior to the comprehensive sickness insurance cover in the host
application for long-term resident status. b) Member State; or c) are enrolled at an accredited
Sickness insurance in respect of all risks establishment for the principal purpose of following a
normally covered for his own nationals in the course of study, including vocational training and have
Member State concerned. 2. Member states comprehensive sickness insurance cover in the host
may require third-country nationals to comply Member State; or d) are family members of a Union
with integration conditions, in accordance citizen who satisfies conditions (a), (b) or (c)’.
with national law (emphasis added).
 TOWARDS A PROACTIVE IMMIGRATION POLICY FOR THE EU? | 25

Withdrawal or loss Withdrawal or loss

The cases in which the long-term resident See Article 2 of the Council Directive on the
status will be lost are described by Article 9 : coordination of special measures concerning the
(a) detection of fraudulent acquisition of long- movement and residence of foreign nationals which are
term resident status; (b) adoption of an justified on grounds of public policy, public security or
expulsion measure under the conditions public health, 64/221/EEC. See also the Annex of the
provided for in Article 12 (i.e. when the Directive.
person constitutes an actual and sufficiently
serious threat to public policy or public In the new proposal for Directive 2003/199 it is Article
security); (c) in the event of absence from the 14.3 states that ‘Once acquired, the right of permanent
territory of the Community for a period of residence shall be lost only through absence from the
twelve consecutive months, being this last host Member State for a period exceeding four years at
situation optional for the member states to a time’.
apply.
Article 8.2 says that ‘The permit shall be valid
at least for five years; it shall, upon
application if required, be automatically
renewable on expiry’.

Residence in other Member states Residence in other Member states

A person holding the long term resident status See above Scope.
shall be entitled to reside in the territory of a
Member State other than the one which
granted her/him the status, provided that the
conditions set up in Chapter III of the
Proposal are met – Article 15.
Following Article 14 the TCN involved may
reside in a second Member State on the
following grounds:

1. exercise of an economic activity in an

employed or self-employed capacity;
2. pursuit of studies or vocational
training;
3. other purposes.

Also, in the same Article it is provided that

‘For reasons of labour market policy, Member
states may give preference to Union citizens,
to TCNs, when provide for by Community
legislation, as well as TCNs who reside
legally and receive unemployment benefits in
the Member State concerned’.
Moreover, Article 4.3 stipulates that ‘member
states may limit the total number of persons
entitled to be granted right of residence,
provided that such limitations are already set
out for the admission of third-country
nationals in the existing legislation’.
26 | APAP & CARRERA

Procedural guarantees Procedural guarantees

Article 10, ‘Where an application for long- Article 8 of the Directive on the coordination of special
term resident status is rejected or that status measures concerning the movement and residence of
is withdrawn or lost or the residence permit is foreign nationals which are justified on grounds of
not renewed, the person concerned shall have public policy, public security or public health,
the right to mount a legal challenge in the 64/221/EEC, stipulates that ‘The persons concerned
Member State concerned’. shall have the same legal remedies in respect of any
decision concerning entry, or refusing the issue or
renewal of a residence permit, or ordering expulsion
from the territory, as are available to nationals of the
State concerned in respect of acts of the
administration’. See also Article 9 of the same
Directive.

Article 13 (former Article 14) ‘Member states Not existent.

may issue residence permits of permanent or
unlimited validity on terms that are more
favorable than those laid down by this
Directive. Such residence permits shall not
confer the right of residence in the other
Member states as provided by Chapter III of
this Directive’.

2.3 The Proposal for a Council Directive on the conditions of entry and
residence of third country nationals for the purpose of paid
employment and self-employment activities
Access to the EU employment market for immigrants represents an essential component
on the achievement of a common immigration policy. “Channels for legal immigration
to the EU should be made available as soon as possible for labour migrants.”90
However, it is well known that this policy area involves a high political sensitivity for
the member states and European populations throughout Europe, which has given rise to
questions of competence. 91 The European Union has enjoyed a rather tortured
relationship with primary economic immigration for at least the last ten years. 92
The goal to achieve an approximation of the legislation in the different EU member
states on the rules of admission of TCNs to work in the EU was highlighted at the
Tampere European Council by saying that “the legal status of third country nationals
should be approximated to that of Member states’ nationals. A person… should be
granted… the right to work as an employee or self-employed person…”

90
Communication from the Commission to the Council and the European Parliament, on a Community
Immigration Policy, Brussels, 22.11.2000, COM(2000) 757 final.
91
In fact, the demarcation of the boundary between Community and member states’ competence is still a
contentious issue and has not yet been fully clarified. This is due to the unwillingness of the member
states to lose their sovereignty in this area.
92
Guild (2001) points out: “While on the one hand the European Union has sought to improve labour
mobility among the Member States on the grounds that primary migration improves prosperity, it has
maintained a discourse against primary economic immigration from outside the Union”.
 TOWARDS A PROACTIVE IMMIGRATION POLICY FOR THE EU? | 27

Following that ‘call for action’, the European Commission presented a proposal for a
Directive on the issue having as a legal basis Article 63 EC Treaty. This Article
provides that the Council is to adopt “measures on immigration policy within the
following areas: (a) conditions of entry and residence, and standards on procedures for
the issue by Member states of long-term visas and residence permits”. It is also
important to recall that the legislative measures adopted pursuant to Article 63(3) (a) EC
Treaty will not be subject to the five-year period stated in Article 62 TEC.93
The proposal for a Directive has not yet been adopted by the Council, 94 leading once
again to questions of why it is so and whether national governments are genuinely
committed to allow for an effective policy convergence in this field.
It is clear that the ‘zero immigration’ policies of the past 30 years are no longer
appropriate in the current economic and demographic context of the European Union.
The Commission has underlined the need to have a ‘proactive’ immigration policy, i.e. a
policy that instead of attempting to prevent and stop immigration, would try to control
immigration according to the needs of the European labour market. The member states
have to be aware that many economic migrants have been driven either to seek entry
through the asylum procedure or to enter illegally in the EU due to the so-called
‘Fortress Europe’ policies. This does not allow for an adequate response to labour
market needs/gaps and plays into the hands of well-organised traffickers and
unscrupulous employers. Member states should also keep in mind and recognise that
independently of the restrictive polices they may adopt towards TCNs, migratory
pressures will continue in the European Union.
The need for TCN labour was first underlined at international level by a report of the
United Nations (2000) entitled Replacement Migration: Is it a solution to declining and
ageing populations?. The report advocated ‘replacement immigration’ in order to
compensate the inevitable population decline in Europe and other parts of the world.
However, it is also well known that migration alone is unlikely to be the answer to
Europe’s demographic problems. Policies for legal migration of labour should also be
coupled with other broader labour market reforms, such as promoting the employment
of minorities and women (e.g. facilitating the integration of women following
childbirth) as well as allowing for longer participation in the labour market, modifying
pension plans, etc.
The Commission presented at the Thessaloniki European Council a Communication on
immigration, integration and employment.95 This particular instrument deserves special

93
Article 63.4 EC Treaty provides that “Measures adopted pursuant to points 2(b), 3(a) and 4 shall not be
subject to the five year period referred to above”. Article 62 stipulates: “The Council, acting in
accordance with the procedure referred to in Article 67, shall, within a period of five years after the entry
into force of the Treaty of Amsterdam, adopt: (1) measure with a view to ensuring, in compliance with
Article 14, the absence of any controls on persons, be they citizens of the Union or nationals of third
countries, when crossing internal borders, …”.
94
The EP voted in March 2003, but there has been no discussion within the Council since July 2002.
95
Communication from the Commission to the Council, the European Parliament, the European
Economic and Social Committee and the Committee of the Regions, on immigration, integration and
employment, Brussels, 3.6.2003, COM(2003) 336 final. See also the Presidency Conclusions,
Thessaloniki European Council, 19 and 20 June 2003, pp. 8-10.
28 | APAP & CARRERA

attention representing the first step towards an open discussion in the EU on the
sensitive issue of TCNs’ integration policy as well as on the necessity of labour
migration due to the socio-demographic and economic future changes within the EU
and its positive consequences for the host state in particular and for the EU in general. 96
It is equally important because it has been agreed that a holistic approach97 towards
integration of immigrant needs to be taken, thus covering a series of key elements, such
as “employment, economic participation, education, language training, health, and
social services, housing, town planning, culture and involvement in social life”. 98
The Commission’s proposal for a Directive on employment and self-employment
activities is nonetheless a welcome attempt to suggest a rather flexible system to deal
with the requirements that the workers from third countries may have to face in the EU.
Although the proposal may be considered a positive instrument, many aspects need to
be improved in order to ensure a comparable treatment between TCNs and EU citizens.

Analysis of the key elements of the proposal

The granting of a work permit should be simple, rational and flexible on the basis of
verifiable and objective criteria, delivered within a short period of time and the
procedure should be transparent. We will assess whether this has been efficiently
achieved through the detailed analysis of the proposal.
Firstly, the main goal of the measure is to establish common definitions and conditions,
as well as a single national application procedure leading to one combined title for both
residence and work permits. 99
As far as the personal scope is concerned, the proposal will not cover the following
categories:
1. TCNs established within the Community who provide cross-border services;
2. Applicants for asylum, as well as under subsidiary/temporary protection;
3. Illegal migrants;
4. TCNs family members of EU citizens who have exercised their right of free
movement; and
5. TCNs staying in a member state of the EU under family reunification rules.

Article 3 preserves the effect of international treaties and agreements concluded by the
EC, the member states or both, if those provisions are more favourable. Therefore, the
Association, Cooperation and Mixed Agreements100 will still be applicable to these

96
In addition to the above-mentioned UN report, other organisations such as Eurostat, the ILO, the OECD
and the IMF have agreed on that argument.
97
See page 18 of the Communication, point 3.2., “The need for a holistic approach”.
98
The same objective was highlighted in the Communication from the Commission to the Council, the
European Parliament, the Economic and Social Committee and the Committee of the Regions, The future
of the European Employment Strategy (EES); A Strategy for full employment and better jobs for all,
Brussels, 14.1.2003, COM(2003) 6 final.
99
Article 1 of the proposal.
100
Concerning the issue of Mixed Agreements see among may others rulings, Demirel V. Stadt
Shcawäbisch Gmünd, Case 12/86, [1987] ECR 3719, R. & V. Haegeman v Belgium, of 30 April 1974,
 TOWARDS A PROACTIVE IMMIGRATION POLICY FOR THE EU? | 29

situations. They will remain in force even after the Directive will be implemented by the
member states. In our opinion the creation of a dual legal system may undermine TCNs’
human rights as far as it is certain that under these agreements a higher level of
protection exists in comparison to the ones recognised under the proposal for a
Directive.101 Therefore, the adoption and future implementation of the Directive would
represent a potential risk, i.e. the protection provided by the current national
immigration rules based on the mentioned agreements will be lowered to meet the new
European standards. On the other hand, this would perpetuate a discriminatory
distinction in the labour force between various groups of TCNs themselves. Article 3
also gives the possibility to the member states to maintain or introduce more favourable
provisions regarding researchers/academic specialists, priests/members of religious
orders/sport professionals/artists/journalists as well as representatives of NGOs. This
possibility may be questioned as far as the practices followed by the member states
differ greatly in those concerns.
The system proposed by the European Commission would be one in which the member
states would first agree on common definitions and practices. The harmonised regime
would have as core criteria the proof that a post cannot be filled in the short-term within
the domestic labour market by:
• EU citizens;
• TCNs family members of EU citizens who have exercised their right to free
movement;
• TCNs already enjoying full access to the national labour market under the
association, cooperation or mixed agreements mentioned above;
• TCNs legally resident in a member state and that have been exercising activities as
an employed person in that member state for more than three years; or
• TCNs who have been legally resident in that member state, and who have legally
exercised activities as an employed person in that member state for more than three
years over the preceding five years.

The requirement to qualify for a post which has not been fulfilled “in the short term”
will be respected if the vacancy has been made public through the employment services
of several member states during four weeks and “no acceptable job application has been
received” from any of the categories listed above.102 The precise meaning of “no
acceptable job application” remains unclear, granting a wide room for the member
states’ discretion in determining it.

Case 181-73 [1974]. Hauptzollamt Mainz v. Kupferberg, Case 104/81, [1982] ECR 3641. See also
Parfums Christian Dior SA v TUK Consultancy BV and Assco Gerüste GmbH and Rob van Dijk v
Wilhelm Layher GmbH & Co. KG and Layher BV., Joined cases C-300/98 and C-392/98 of 14 December
2000, on the interpretation of an article of a Mixed Agreement as having direct effect.
101
Through its case law, the ECJ has extended the rights provided by the provisions of these agreements
making them as far as possible analogous to the ones conferred on EU citizens. See, for instance, Case C-
18/90 ONEM v. Kziber [1991] ECR I-199 and Case C-1/97 Birden [1998] ECR I-7747.
102
Article 6(2) of the proposal. This article also states the possibility that the job vacancy will be made
public through the European Employment Services (EURES) network established by the Commission
Decision 93/569/EEC, OJ L 274, 6.11.1993.
30 | APAP & CARRERA

The proposal also gives member states the opportunity to adopt national legislations in
which the mentioned criteria are considered to be fulfilled “for a specific number of
jobs, in a specific sector, for a limited time-period and, if appropriate, in a specific
region without the need for individual assessment”.103
Regarding the proposed single national application procedure, the measure differentiates
between the entry and residence of TCNs for the purpose of paid employment (Chapter
II – Articles 4 to 16) as well as for the purpose of exercising self-employed economic
activities (Chapter III – Articles 17 to 24).
As far as the rules applicable to paid employment are concerned, first it is interesting to
see how under Article 5 the applications to obtain the so-called “residence permit –
worker” can be submitted both by TCNs as well as by their future employers. 104
The residence permit, which shall be valid for a period of up to three years to be
determined by the national legislation,105 will be issued if the person involved fulfils the
following requirements/conditions:
1. Submission of the application along with the name and address of the applicant and
employer;
2. A valid work contract or recruiting promise;
3. Description of the activities carried out;
4. Evidence that the vacancy cannot be fulfilled with any of the categories provided in
Article 6;
5. Certificate/proof of good character and conduct and a health;
6. Valid passport (valid residence title);
7. Documents proving the skills that are necessary to carry out the envisaged activities;
8. Evidence of sufficient resources and sickness insurance covering all risks; and
9. Proof of payment of the application fee.

Throughout the provisions of the Commission’s proposal wide discretion is given to

member states to apply horizontal measures limiting the admission of TCNs. A good
example is Article 8 which states that a “residence permit – worker” shall be restricted
during the first three years to the exercise of specific professional activities or fields of
activities, as well as to the exercise of activities as an employed person in a specific
region.

103
Article 6(3) of the proposal.
104
Article 5.1 reads: “In order to obtain a ‘residence permit – worker’, a third country national intending
to exercise activities as an employed person in a Member State shall apply to the competent authority of
the member state concerned; The future employer of a third-country national shall have the right to
submit an application on behalf of the third-county national applicant”.
105
Article 7 of the proposed Directive states: “A ‘residence permit-worker’ shall be issued for a
predetermined period. The initial residence permit granted shall be valid for a period of up to three years
to be determined in accordance with national legislation. It shall be renewable for periods of up to three
years, to be determined in accordance with the national legislation, on application by the holder, to be
submitted at least three months before the expiry date and after consideration by the competent authority
of a file containing updated information on the items enumerated in Article 5.3 and in particular detailed
information on the activities exercised as an employed person”.
 TOWARDS A PROACTIVE IMMIGRATION POLICY FOR THE EU? | 31

In addition, Article 11, which establishes the specific rights entitled to the holder of a
resident permit, both for paid employment and self-employed activities, deserves special
attention. Comparable treatment between the TCNs covered by the proposal and EU
citizens is provided in some circumstances, but there are some areas in which equality
between the two is far from being ensured. By way of example, paragraph 2 of the legal
provision states that member states may restrict access to vocational training necessary
to complement the activities authorised under the resident permit; as well as access to
goods and services and the supply of goods and services made available to the public,
including public housing.106
As Commissioner Vitorino (2003) mentioned in his speech before the European
Parliament, “the Commission does not intend to decide by Directive the number of
immigrants that our economies and societies are prepared to absorb. The proposed
Directive leaves that decision with the member states; only they, together with their
civil societies and local authorities know how many their societies are capable of
integrating”. According to Article 26 of the proposal, member states remain responsible
for the adoption of national provisions setting a ceiling or limiting the issuing of permits
taking into account their overall capacity to receive and integrate TCNs on their
territory. Indeed, the Commission does not intend to propose any quota system on a
European scale but rather present some ‘indicative targets’, a system based on periodic
reports of the member states, re-examining the impact of their immigration policies
during the past period and making projections on the number of economic migrants they
would need in future (including their qualification levels). 107
The common policy on admission for economic reasons proposed by the Commission
leaves wide discretion to the member states, intending only to establish “indicative
targets”. Nevertheless, labour migration remains a matter falling within the exclusive
competence of the member states. Therefore, the Lisbon objective of “making the Union
the most dynamic, competitive, sustainable knowledge-based economy, enjoying full
employment and strengthened economic and social cohesion” by 2010 will be
extremely difficult to achieve if there is no fundamental change in the member states’
priorities and policies towards economic migration in the near future.108 Increasing
labour force participation rates to 70% will not be an easy task, even for the most

106
Article 11.2 states: “Member States may restrict the rights conferred under paragraph 1(f)(ii) to third
country nationals who have been staying or who have the right to stay in their territory for at least one
year. They may restrict the rights conferred under paragraph 1(f)(v) with respect to public housing to
third-country nationals who have been staying or who have the right to stay in their territory for at least
three years”.
107
Communication from the Commission to the Council and the European Parliament, on an Open
Method of Coordination for the Community Immigration Policy, Brussels, 11.7.2001, COM (2001) 387
final.
108
Lisbon Presidency Conclusions, 23 and 24 March 2000. See also Communication from the
Commission to the Spring European Council in Barcelona, The Lisbon Strategy – Making Change
Happen, Brussels, 15.1.2002, COM(2002) 14 final.
32 | APAP & CARRERA

optimistic, as long as the member states continue to face declining labour forces and a
growing population of retirees, due to demographic patterns.109
In Table 3 we aim to show the key similarities and differences that exist between the
regime provided for TCNs by the Commission’s Directive and that enjoyed by nationals
of EU member states.

Table 3. Similarities and differences between the system proposed by the Directive on
entry and residence of TCNs for employment and the one concerning EU
citizens

Third Country Nationals EU Citizens

Proposal for a Council Directive on the Treaty Establishing the European Community (Free
conditions of entry and residence of third movement of services and establishment), Directive
country nationals for the purpose of paid 64/221, Directive 68/360, Regulation 1612/68,
employment and self-employment activities Regulation 1251/70, etc.

Rights conferred Rights conferred

The rights granted to the holder of a residence Article 39 EC Treaty. The substantive nature of the
permit are stated in Article 11. These being: rights conferred under this Article is given flesh by
secondary legislation and in particular Regulation
• Entry to the territory of the member state 1612/68 on Freedom of Movement for workers
issuing the ‘residence permit –worker’; within the Community, 15 October 1968.
• Re-entry to the territory of the member
state issuing the residence permit;
• Passage through other member states in
order to exercise the rights under the two
previous points;
• Residence in the member state issuing the
residence permit
• Exercise of the activities authorized under
the residence permit; and
• Enjoyment of equal treatment with citizens
of the Union at least with regard to:
working conditions, access to vocational
training, recognition of diplomas, social
security, access to goods and services
made available to public, freedom of
association and affiliation and membership
of an organization. However, these rights
being subject to limitations.

109
See Summary report, The Athens Capstone Conference on ‘Managing Migration for the benefit of
Europe’, May 15 & 16, 2003. See also the above-mentioned UN report based on demographic
considerations worldwide, projections for the period 1995-2050.
 TOWARDS A PROACTIVE IMMIGRATION POLICY FOR THE EU? | 33

Grounds for rejection and exclusion Grounds for rejection and exclusion
Article 11.2. - The equal treatment is not fully Regulation 1612/68 ensures equal treatment as
ensured. member states “may restrict the rights regards social and tax advantages, housing and trade
conferred under paragraph 1(f)(v) with respect union rights for EU national workers and their
to public housing to third-country nationals who families.
have been staying or who have the right to stay • Article 7.2 provides that a worker “shall
in their territory for at least three years”. enjoy the same social and tax advantages as
national workers”; And
• Article 9 states that “A worker who is a
national of a member state and who is employed
in the territory of another member state shall
enjoy all the rights and benefits accorded to
national workers in matters of housing, including
ownership of the housing he needs”. See also
Article 8 of the Regulation.

Formal Requirements: Formal Requirements:

• Article 5 Council Directive of 15 October 1968 on the
abolition of restrictions on movement and residence
1) Submission of the application along within the Community for workers of member states
with the name and address of the applicant and their families, 68/360/EEC –
and employer;
• Article 2 provides “…the right to leave
2) A valid work contract or recruiting
their territory…shall be exercised simply on
promise;
production of a valid identity card or passport…”
3) Description of the activities carried out;
• Article 3 establishes that member states
4) Evidence that the vacancy cannot be
shall allow EU nationals and the members of their
fulfilled with any of the categories provided
families “to enter their territory simply on
in Article 6;
production of a valid identity card or passport”.
5) Certificate/proof of good character and
No entry visa shall be required “save from
conduct and a health;
members of the family who are not nationals of a
6) Valid passport (valid residence title);
member state”.
7) Documents proving the skills which are
necessary to carried out the envisaged • The documents necessary to be presented in
activities; order to acquire the ‘residence permit for a
8) Evidence of sufficient resources and National of a member state of the EEC’ are listed
sickness insurance covering all risks; and in Article 4 - the worker shall present only:
9) Proof of payment of the application fee. a) the document with which he entered their
territory; and
• Article 6 — “It must be demonstrated
b) a confirmation of engagement from the
that a job vacancy in that member state
employer or a certificate of employment.
cannot be filled in the short term by any of
the following categories:...”. • Article 6 provides that the residence permit
must be valid for at least five years and be
• Article 7 — “A residence permit shall
automatically renewable. At the same time
be issued for a predetermined period. The
“Breaks in residence not exceeding six
initial “residence permit – worker” granted
consecutive months and absence on military
shall be valid for a period up to three years
service shall not affect the validity of a residence
to be determined in accordance with national
permit”.
legislation. It shall be renewable for periods
of up to three years, to be determined in
accordance with national legislation, on
application by the holder, to be submitted at
least three months before the expiry date and
after consideration by the competent
authority of a file containing updated
information…”.
34 | APAP & CARRERA

Grounds for withdrawal Grounds for withdrawal

Article 10 — “Unemployment in itself shall not EU citizens can stay in the host member state as long
constitute a sufficient reason for revoking a as they are looking for employment and can
‘residence permit – worker’ unless the period of demonstrate that there is a ‘reasonable prospect’ of
unemployment exceeds the following duration: finding it. See for instance Judgment of the ECJ of
(a) three months within a 12-month period, for 26 February 1991, Antonissen, Case 292/89, as well
holders of a residence permit who have legally as Commission v. Belgium Case C-344/95, and Lair
exercised activities as employed or self- V. University of Hannover Case 39/86.
employed persons in the member state
concerned for less than two years; (b) six
months within a 12-month period, for holders of
a residence permit who have legally exercised
activities as employed or self-employed persons
in the member state concerned for two years or
more”.

Conditions to be met Conditions to be met

Member states shall be allowed to apply Article 4 of the Regulation 1612/68 provides that
horizontal measures, such as ceiling or quotas, “Provisions laid down by law, regulation or
limiting the admission of third country nationals. administrative action of the member states which
restrict by number of percentage the employment of
Article 3.4 — “Member states may maintain or foreign nationals in any undertaking, branch of
introduce more favourable provisions regarding activity or region, or at national level, shall not
the following categories: apply to nationals of the other member states”.
researchers/academics, priests and members of
religious orders, sport professionals, artists,
journalists, representatives of non-profit making
organidations.”
Additionally, the chief criterion for admitting
third-country nationals to activities as a
employed person should be a test demonstrating
that a post cannot be filled form within the
domestic labour market – See Article 26, which
establishes the possibility by the member states
to “decide to adopt national provisions limiting
the issuing of permits in accordance with this
Directive to a set ceiling or suspending or
halting the issuing of these permits for a defined
period, taking into account the overall capacity
to receive and to integrate third-country
nationals on their territory or in specific regions
thereof”.

Article 8 — “A ‘residence permit – worker’

shall initially be restricted to the exercise of
specific professional activities or fields of
activities. It may also be restricted to the
exercise of activities as an employed person in a
specific region. After three years, it shall not be
subject to these restrictions.”
 TOWARDS A PROACTIVE IMMIGRATION POLICY FOR THE EU? | 35

Rules on expulsion Rules on expulsion

No rules on expulsion as such, and the rules on Council Directive of 25 February 1964 on the Co-
withdrawal or non-renewal of a residence permit ordination of special measures concerning the
will not necessarily result in equal treatment movement and residence of foreign nationals which
between third-country nationals and EU are justified on the grounds of public policy, public
nationals. See Article 29. security or public health, 64/221/EEC provides a
specific rights as far as the substantive scope of
national decisions regarding expulsion and
procedural rights of EU citizens and their families.
See specifically Articles 8 and 9, in which it is
provided that “the person concerned shall have the
same legal remedies in respect of any decision
concerning entry, or refusing the issue or renewal of
a residence permit, or ordering expulsion from the
territory, as are available to nationals of the State
concerned in respect of acts of the administration.”

2.4 The proposal for a Council Directive on the conditions of entry and
residence of third-country nationals for the purposes of studies,
vocational training or voluntary service
The positive implications of international exchange students and academics from third
countries, as well as the ‘reciprocal enrichment’ that the process involves were
welcomed and considered as positive even during the period of restricted immigration in
the EU. This was already recognised in the Resolution of 30 November 1994 on the
admission of third-country nationals to the territory of the Member states for study
purposes,110 in which the Council agreed on the desirability of that policy.
A European harmonised system consisting of the approximation of national legislation
on these issues was deemed to be also necessary since the Tampere European Council’s
Conclusions. 111 Thus, in 2002, a proposal for a Directive was presented by the
Commission on the conditions of entry and residence for studies, vocational training or
voluntary service, thus completing the legal framework governing admission on the
basis of the purpose of the stay. This proposal has not yet been adopted by the Council
of Ministers. 112

110
See point 2 of the Council Resolution of 30 November 1994 on the admission of third-country
nationals to the territory of the Member States for study purposes, Official Journal C 274, 19/09/1996, p.
0010-0012. See also the Proposal for a European Parliament and Council Decision establishing a
programme for the enhancement of quality in higher education and the promotion of intercultural
understanding through co-operation with third countries (Erasmus World) (2004-2008), COM/2002/0401
final.
111
See Paragraph 21 of the Conclusions, “A person, who has resided legally in a Member States for a
period of time to be determined and who holds a long-term residence permit, should be granted in that
Member State a set of uniform rights which are as near as possible to those enjoyed by EU citizens; e.g.
the right to reside, receive education, and work as an employee or self-employed person, as well as the
principle of non-discrimination vis-à-vis the citizens of the State of residence”.
112
Open debate at JHA Council, 14-15 October 2002; the European Parliament voted in April 2003.
36 | APAP & CARRERA

Firstly, it is necessary to keep in mind that this measure aims to deal with a sort of
immigration that is temporary in character, in comparison with the one covered by the
other legal tools analysed above.
As Commissioner Vitorino said, “the proposal was the last due to be submitted on
asylum and immigration in order to complete the commitments endorsed by President
Prodi at the Tampere European Summit”.113 Indeed, this has been one of the last legal
instruments on TCNs presented by the European Commission, whose goal is to make it
easier to host students from third countries under the future Erasmus World
programme114 and to allow them to participate in the Youth and Euromed Youth
programmes.
Centering oneself specifically in the assessment of the category of student, through the
analysis of the Proposal one can appreciate the gaps of the system, as well as how even
with its potential adoption the differences between TCNs and EU citizen status would
not be diminished sufficiently to achieve a comparable status.

Some remarks on the Commission’s Proposal

The main purpose of the proposed Directive is to provide the conditions and procedures
applicable to entry and residence by TCNs in the European Union for the purpose of
studies, training or voluntary service. 115 The member states and the specific
‘establishments’ themselves remain responsible to lay down the conditions for
admission to education and vocational training.
Article 3 deals with the scope of the proposal and provides that the provisions of the
measure will not exclude the application of “more favourable provisions of bilateral or
multilateral agreements between the Community or the Community and its Member
states and one or more third countries”. Thus, we can see again that the proposal does
not intend to create a complete uniformisation of the provisions relevant to these
categories of TCNs.
The measure distinguishes between four different categories of TCNs: students, pupils,
unpaid trainees and volunteers. The measure defines ‘student’ as “people admitted to an
establishment of higher or professional education”. Therefore, lower education levels
are not covered. The category of ‘school pupil’ is also mentioned in the proposed
Directive, meaning people admitted to an establishment of secondary education.116

113
Press Release, RAPID, IP/02/1437, Studying, training, voluntary activity in the European Union:
Towards common entry and residence criteria for third country nationals, Brussels, 7 October 2002.
114
See Proposal for a European Parliament and Council Decision establishing a programme for the
enhancement of quality in higher education and the promotion of intercultural understanding through co-
operation with third countries (Erasmus World) (2004-2008), Com/2002/0401 final, Official journal C
331 E, 31/12/2002, pp. 0025-0049.
115
Article 1 of the proposed Directive states: “The purpose of this Directive is to determine: a) the
conditions of entry and residence of third-country nationals in the territory of the Member States for a
period exceeding three months for the purpose of studies, vocational training or voluntary service; b)
rules concerning the procedures for issuing residence permits allowing third-country nationals to enter
and reside in the Member States for those purposes”.
116
Articles 8 and 12 of the proposal.
 TOWARDS A PROACTIVE IMMIGRATION POLICY FOR THE EU? | 37

However, the proposal covers mobility of these people only in the context of exchange
schemes run by specialised organisations accredited for that purpose by relevant
member states; it does not deal with individual mobility, which remains exclusively
under national competence. It does not impose any obligation on the member states in
issuing, for instance, pupil exchange. In addition, it will not be applicable to the
following persons:117
1. those remaining in a member state as an asylum seeker, under subsidiary forms of
protection or within a framework of temporary protection arrangements;
2. those who are members of a family of EU citizens having exercised their right to
freedom of movement inside the EU; and
3. those enjoying long-term resident status — Article 16.1.b of the Council Directive
on the status of TCNs who are long-term residents.
In the area of education, the proposed European system distinguishes three general
categories of TCNs, applying a complete set of legislation to each of them (see Table 4):
• TCNs willing to enter and reside temporarily in the EU for the purposes of studies,
vocational training and/or voluntary service (proposal for Directive on the
conditions of entry and residence for studies, vocational training or voluntary
service ), who are the main target group of the proposed Directive;
• TCNs enjoying long-term resident status in the EU (Directive concerning the status
of TCN who are long-term residents); and
• TCNs enjoying non-long term resident status, but who are legally residents in the
EU (national migration laws).
Table 4. Legislation governing the three categories of TCNs pursuing education,
training & voluntary service
TCNs – willing to enter and TCNs enjoying long-term resident status in Non-long term
reside temporarily in the EU for the EU resident status
the purposes of studies, TCNs, but legally
vocational training & resident in the EU
voluntary service
$ $ $
• Proposal for a Council • Council Directive concerning the status National
Directive on the conditions of of third-country nationals who are long- legislation of the
entry and residence of third- term residents, COM (2001) 127 final, member states –
country nationals for the 13.3.2001. National
purposes of studies, vocational Article 16: “The exercise of the right of migration laws
training or voluntary service, residence in a second Member State by a
COM (2002) 548 final, long-term resident shall be subject to
7.10.2002. compliance with the following conditions:
• Council Resolution of 30 b) pursuit of studies or vocational training,
November 1994 on the and possession of adequate resources
admission of third-country available to avoid becoming a burden on the
nationals to the territory of the second MS during the period of residence
member states for study and sickness insurance covering all risks in
purposes, 30.11.1994. the second Member State.”

117
Article 3.3 of the proposal.
38 | APAP & CARRERA

The situation of those TCNs enjoying long-term resident status in the EU is not covered
by the legal initiative.118 The reason given in the Explanatory Memorandum is that they
are already covered by the Directive concerning the status of TCNs who are long-term
residents. Indeed, Article 16 of the latter provides the conditions under which long-term
residents may pursue studies or vocational training in a second member state. It is also
true, however, that the conditions applicable under both legislative measures are not
completely similar in content as well as in character.119
Under the proposal for a Directive on the conditions of entry and residence of TCNs for
the purposes of studies, vocational training or voluntary service, the conditions for
granting a residence permit are dealt with in Articles 5 to 10. Article 5 states the general
conditions for that must be met before a TCN may be issued a residence permit:
• Presentation of a valid passport or equivalent travel document;
• Health care insurance covering all risks;
• Not been regarded a threat to the public policy, public security and public health;
and
• Proof of payment of a fee.
The TCN may provide, additionally, specific evidence that s/he:
1. has been admitted to follow a full-time course of study in an establishment of higher
or professional education;
2. will have sufficient resources to cover the minimum monthly resources established
by the particular member state; and if the member state so requests;
3. has sufficient knowledge of the language of the course; and
4. has paid the fees required by the establishment.

The issuing of a student residence permit is dealt with in Article 11. The foreign student
will receive a residence permit for a period “not less than one year”, which may be
renewed from year to year if s/he continues to meet the conditions mentioned above.
The set of reasons for the withdrawal or/and the non-renewal of the permit are provided
in Articles 11, 15 and 16 of the proposal. The right to enter and reside for the purpose of
study, vocational training and voluntary service is recognised expressly in Chapter IV,
entitled Rights of third-country nationals. 120
The Commission’s proposed Directive may be criticised on the grounds that it seems to
leave once again too much discretion to the national authorities and institutions.
Additionally, the legal language used within the measure, “may”/”shall”, shows the
limited amount of obligations on behalf of the member states. On the other hand, it is

118
See Explanatory Memorandum, point 3.3. of the proposal for a Directive on the situation of third-
country nationals who already reside in the European Union for whom this proposal contains no
provisions.
119
On the contrary, under the Directive concerning the status of third-country nationals who are long-term
residents, Articles 16 to 26 confine the main provisions dealing with the right of residence in a second
member state to “pursuit of studies or vocational training”. However, as mentioned earlier, this Directive
does not recognise the existence of a right to pursue studies or vocational training in a second member
state, being thus more restrictive in nature than the above-mentioned proposal.
120
Articles 17 and 18.
 TOWARDS A PROACTIVE IMMIGRATION POLICY FOR THE EU? | 39

unfortunate that the Commission decided not to submit a legislative proposal covering
all the existing categories of TCNs who may wish to carry out studies, vocational
training or voluntary service in the EU. Thus, even if the proposal may be qualified as a
positive development, it does not give a full solution to the uncertainties and gaps
existing within the current system. It is equally not certain that those categories falling
outside the personal scope of the proposal can be satisfactorily handled by the member
states applying their specific national laws.
Comparing the proposal with the European regime for EU students,121 the latter, even
though not being yet totally satisfactory, is much wider in scope and content than the
former. Indeed, even though education and training are key factors in a successful
integration of TCNs within the European Union, 122 the current EU legal system on those
issues does not fully cover that possibility in a complete manner.

Table 5. Similarities and differences between the provisions for TCNs introduced by the
Directive on entry and residence for studies, vocational training or voluntary
service and those governing EU citizens
Third Country Nationals EU Citizens
Proposal for a Directive on the conditions of Council Directive on the right of residence
entry and residence of third-country nationals for students, 93/96/EEC, No. L317/59
for the purposes of studies, vocational training
or voluntary service, COM/2002/548

Personal scope Personal scope

TCN admitted to reside in the territory of a EU citizens – there is not any limitation as far
member state to pursue a course of study in an as higher or professional education.
establishment of higher or professional
education.

Persons excluded
The proposal will not be applicable to the
following categories of TCNs:
1. TCNs remaining in a member state as
asylum seekers, under subsidiary forms
of protection or within a framework of
temporary protection arrangements.
2. TCNs who are members of a family of
EU citizens having exercised their right
to freedom of movement inside the EU.
3. TCNs enjoying the long-term resident
status – Article 16.1.b of the Council
Directive on the status of TCNs who are
long-term residents.

121
Council Directive on the right of residence for students, 93/96/EEC, No. L317/59.
122
See page 20 of the Communication on immigration, integration and employment, 3.3.2 Education and
language skills.
40 | APAP & CARRERA

Requirements for the issuing of the Requirements for the issuing of the
residence permit residence permit
Article 4: “Member states may authorise Article 2: “For the purpose of issuing the
TCNs to enter and reside in their territory” residence permit or document, the Member
only if a residence permit has been issued by State may require only that the applicant
their authorities — The residence permit will present a valid identity card or passport and
be issued if the conditions laid down in provide proof that he or she meets the
Articles 5 and 6 are met. conditions provided in Article 1.”
The conditions are: The conditions under Article 1 are:
• Presentation of a valid passport or • That s/he has sufficient resources to
equivalent travel document; avoid becoming a burden on the
• Health care insurance covering all risks; social assistance system of the host
• Not been regarded a threat to the public member state during their period of
policy, public security and public health; residence;
and • That the student is enrolled in a
• Proof of payment of a fee. recognised educational establishment
for the principal purpose of following
As well as: a vocational training course there; and
1. has been admitted to follow a full-time • That s/he is covered by sickness
course of study in an establishment of insurance in respect of all risks in the
higher or professional education; host member state.
2. will have sufficient resources to cover • That the provision of the Council
the minimum monthly resources Directive 64/221/EEC, residence and
established by the particular member public policy, security and health, of
state. The member states shall publish 25 February 1964 do not apply.
minimum monthly resources required in
terms of the resources that a person
pursuing studies on their territory must
generally have, without prejudice to
individual examination of each case; and
if the member state so requests;
3. has sufficient knowledge of the language
of the course; and
4. has paid the fees required by the
establishment.

And in addition to the specific conditions for

the category of persons defined in Articles 6,
7, 8, 9 or 10.

Family members Family members

Not mentioned/covered within the proposal. Article 1, “Member states shall recognise the
right of residence for any student who is a
national of a Member State,…, and for
student’s spouse and their dependent
children”.
 TOWARDS A PROACTIVE IMMIGRATION POLICY FOR THE EU? | 41

Recognition of Diplomas Recognition of Diplomas

Article 6, regarding the specific conditions for • Council Directive of 21 December 1988
students, point a) provides that the residence on a General System for the Recognition of
permit may be issued if he proves that he has Higher-Education Diplomas Awarded on
been admitted to an establishment of higher or Completion of professional education and
professional education to follow a full-time training of at least three years’ duration,
course or “evidence that he is enrolled subject 89/48/EEC
to a decision on the equivalence of his foreign • Council Recommendation of 21
qualification or passing an entrance test”. December 1988 concerning nationals of
member states who hold a diploma conferred
in a third state, 89/49/EEC.
• Council Directive 92/51/EEC of 18 June
1992 on a second General system for the
recognition of professional education and
training to supplement Directive 89/48/EEC

3. How have the events of 11 September 2001 affected the development

of a European immigration policy?
The Justice and Home Agenda (JHA) agenda has been shaped by various dramatic
events, policy spill overs, as well as the incoming troikas in the Council. These key
factors in turn have affected the balance that is being struck in JHA between freedom
and security. Despite the inherently inefficient decision-making process in this area, the
EU has shown after 11 September 2001 that it can take decisions quickly –.particularly
with respect to security measures. In the Laeken European Council in December 2001,
the question whether “we want to adopt a more integrated approach to police and
criminal law cooperation” was presented. This concern became particularly acute
following the events of 11 September. To some extent, the Tampere agenda was
distorted due to the heightened sensitivity to security matters. The June 2002 Seville
European Council highlighted the necessity to speed up implementation of all aspects of
the programme presented at Tampere and to develop a common EU policy on the issues
of asylum and immigration. 123 The field of action, however, was centred mainly in
combating illegal immigration and trafficking/smuggling of human beings. The
Presidency Conclusions represented a good example of such security concerns within
JHA policies that have tended to dominate any serious discussions on liberty. 124
With regard to measures in the area of a proactive immigration policy - the topic of this
report – the EU has had a rather angst-ridden relationship especially with primary
economic immigration over the last ten years or so. Despite population decline and
current economic needs, member states still seem reluctant to take the steps necessary to
adopt a truly proactive immigration policy that bears a significant degree of
convergence across Europe. All sectors of society recognise the need to fight against

123
See Paragraph 26 of the Presidency Conclusions of the Seville European Council of 21 and 22 June
2002, Part III Asylum and Immigration.
124
See Paragraph 30 of the Presidency Conclusions, entitled Measures to combat illegal immigration.
42 | APAP & CARRERA

illegal immigration, smuggling and trafficking and to make these issues a top priority at
European level. However this needs to start from a premise of liberty/freedom that
upholds the fundamental values that member states have embraced in the European
Convention of Human Rights and the European Charter on fundamental rights and
freedoms. This should be reflected in a speedier adoption of the set of legislative
proposals covering the ‘freedom’ side of the policy area vis-à-vis third country
nationals. The two proposed directives first to be discussed in the Council – one on
family reunification and the other on extending a long-term status to third country
nationals – were re-written to try to give the member states maximum discretion on
whom they allow to enter their territory and in the way they judge who could be a threat
to public order as well as to allow them to decide who could be liable to integrate well
in their societies. This could risk compromising the commitments undertaken by these
same states at international as well as European levels. As we have shown previously,
the discussions on these directives have been very lengthy and political agreement was
indeed very slow to be reached – and that only after a certain watering down of the
guaranteed rights originally attributed to third country nationals.
A recurring leitmotiv has been the concern of who actually constitutes a threat to public
order. The scope of who is a threat to public order seems to be applied more vaguely,
thus allowing for a wider interpretation than the one defined in the Bouchereau ECJ
case of 1977. Some member states even used the events of 11 September as a pretext to
change certain aspects of the texts in these directives, although in reality, discussions to
this end had already started within the Council before the tragic events of 11 September
2001.
It is perceived also that the terrorist attacks in the US have also radically changed
perceptions of security at EU level. Undoubtedly, these attacks have provided a new
impetus for the development of the Area of Freedom, Security and Justice (AFSJ). The
member states’ governments, security agencies and public opinion have been made
dramatically aware of the extent to which international forms of crime threaten
traditional internal security, and the AFSJ provides the perfect framework for such
action to be taken. They have had, and continue to have, a powerful influence over the
Justice and Home Affairs agenda. Consequently, the problem of the balance between
security and freedom has never been more acute and needs to be carefully studied and
assessed looking at the policy developments and concrete legislative instruments
adopted so far by the Council of Ministers of the European Union. Biometrics, intrusive
surveillance, exchange of data with third countries (at times risking infringement of data
protection Directive 95/46/EC) and over-policing as well as viewing the immigrant with
a certain suspicion have all been justified on grounds of the security rationale.
 TOWARDS A PROACTIVE IMMIGRATION POLICY FOR THE EU? | 43

4. Conclusion
There are at present some 13 million non-EU nationals living legally in the 15 current
member states (3.4% of the total population of the EU).125 Managing this immigrant
population correctly can bring immense benefits to Europe. To date, however, the
efforts made at national and European level have been inadequate as well as inefficient.
International migration is intertwined with a wide set of other policy areas including
employment, education, external relations, development cooperation, etc. Proper
management requires that the decision-making would cover all those policy areas in
order to deal thoroughly with the different aspects of the issue.
The European Union’s growth, labour market imbalances and competitiveness cannot
be addressed without greater attention to international migration, education, training and
the integration of immigrants both within the labour market and in local communities of
the host countries.
Migration equally poses serious issues of governance. EU citizens – electors – need to
be made aware of immigration’s beneficial effects by their governments, parliaments (at
national and local level) and media in general. So far migration has been presented in a
rather negative light. The public also needs to know that immigration does not constitute
a threat to their security/safety. Policies intended to demonstrate to the public that
immigration can be an orderly process and that immigrants are national assets could
transform public attitudes into a more welcoming behaviour that tolerates cultural
differences and supports the natural process of integration.126 The host society needs to
receive more information about the beneficial participation of migrants, in terms of their
contribution both to society and to the labour market.
Setting aside the economic concerns/benefits of international migration, a generalised
amnesia exists at EU governmental level in relation to the obligations undertook by all
the member states under the European Convention of Human Rights. Member states
have to protect the set of human rights included within the Convention. However,
looking at national practices and, particularly, at the wide room of discretion granted to
member states by all the Commission’s proposals on TCNs, it seems that a lower level
of protection will exist by the time the Directives are fully implemented. This fact will
lead to an institutional crisis in Europe due to a potential conflict between the Council
of Europe and the European Union dimensions.

125
See Eurostat & European Commission, Directorate General for Employment and Social Affairs
(2002), Social situation in the European Union, European Communities, 2002.
126
In its Communication on a Community Immigration Policy, COM(2000) 757 final, the Commission
states: “It is essential to create a welcoming society and to recognise that integration is a two-way process
involving adaptation on the part of both the immigrant and of the host society. The European Union is by
its very nature a pluralistic society enriched by a variety of cultural and social traditions, which will in the
future become even more diverse. There must, therefore, be respect for cultural and social differences but
also of our fundamental shared principles and values: respect for human rights and human dignity,
appreciation of the value of pluralism and the recognition that membership of society is based on a series
of rights but brings with it a number of responsibilities for all of its members be they nationals or
migrants”.
44 | APAP & CARRERA

The European Union is still far from formulating a uniform proactive immigration
policy. However, policy-makers in the Council need to summon up the necessary
political courage to move towards a greater convergence in this field, which is also an
inevitable step to be taken towards the Single European Market and the consequent
removal of internal borders in Europe.
Migration policies have been adversely affected by several factors, including policy
spill overs as the Presidency rotates, and more importantly, the emergence of the so-
called ‘security concern’ and the ‘permanent state of exceptionalism’ since the 11
September terrorist attacks. The latter constitutes a real threat as regards the Tampere
European Council’s goal to strike a balance between security and freedom. Indeed
looking at the progress charted by the Commission on the creation of an area of
freedom, security and justice, it seems clear that as far as immigration is concerned, the
main policy instruments that have been adopted deal with the fight against illegal
immigration and reinforcing EU border controls, which are two interrelated policies
designed to prevent and combat terrorism. The control of illegal immigration,
smuggling and trafficking is highly necessary and should be considered as a priority at
European level. Nevertheless, security and law enforcement policies need to be
developed with ‘freedom’ as the point of departure.
 References

EU Legislation (quoted)
Amended Proposal for a Directive of the EP and of the Council, on the rights of citizens
of the Union and their family members to move and reside freely within the
territory of the Member states, Brussels, 15.4.2003, COM(2003) 199 final.
Commission Communication to the Council and the European Parliament on a
Community Immigration Policy COM (2000) 757, 22.11.2000.
Communication from the Commission to the Council and the European Parliament on a
open method of co-ordination for the Community immigration policy, 11 July,
COM (2001) 387 final.
Communication from the Commission to the Council, the European Parliament, the
Economic and Social Committee and the Committee of the Regions, The future of
the European Employment Strategy (EES): A Strategy for full employment and
better jobs for all, Brussels, 14.1.2003, COM(2003) 6 final.
Communication from the Commission to the Council and the European Parliament,
Biannual Update of the Scoreboard to review progress on the creation of an area
of “Freedom, Security and Justice” in the European Union, First Half of 2003,
Brussels, 22.5.2003, COM(2003) 291 final.
Communication from the Commission to the Council, the European Parliament, the
European Economic and Social Committee and the Committee of the regions, on
immigration, integration and employment, Brussels, 3.6.2003, COM (2003) 336
final.
Council Directive of 25 February 1964 on the Co-ordination of special measures
concerning the movement and residence of foreign nationals which are justified
on the grounds of public policy, public security or public health, 64/221/EEC.
Council Directive of 15 October 1968 on the abolition of restrictions on movement and
residence within the Community for workers of Member states and their Families,
68/360/EEC, No. L257/13.
Council Directive of 21 May 1973 on the abolition of restrictions on movement and
residence within the Community for nationals of member states with regard to
establishment and the provisions of services, 73/148/EEC, No. L172/14.
Council Directive 78/686/EEC of 25 July 1978 concerning the mutual recognition of
diplomas, certificates and other evidence of the formal qualifications of
practitioners of dentistry, including measures to facilitate the effective exercise of
the right of establishment and freedom to provide services, OJ L 233, 24/08/1978,
etc.
Council Directive 89/48/EEC of 21 December 1988 on a General System for the
Recognition of Higher-Education Diplomas Awarded on Completion of
professional education and training of at least three years’ duration, , No. L19/16.
Council Directive of 28 June 1990 on the right of residence for employees and self-
employed persons who have ceased their occupational activity, 90/365/EEC, No.
L180/28.

| 45
46 | APAP & CARRERA

Council Directive of 28 June 1990 on the Right of Residence, 90/364/EEC, No.

L180/26.
Council Directive 92/51/EEC of 18 June 1992 on a second General system for the
recognition of Professional Education and training to Supplement Directive
89/48/EEC.
Council Directive of 29 October 1993 on the right of residence for students, 93/96/EEC,
No. L317/59.
Council Directive of 29 October 1993 on the right of residence for students, 93/96/EEC,
No. L317/59.
Council Directive 2000/43, OJ L 180 of 19.7.2000, implementing the principle of equal
treatment between persons irrespective of racial or ethnic origin.
Council Directive 2000/78, OJ L 303 of 2.12.2000, establishing a general framework for
equal treatment in employment and occupation.
Council Directive concerning the status of third-country nationals who are long-term
residents, Brussels, 7 July 2003, Council of the European Union, Doc. 2001/0074,
MIGR 48.
Council Directive on the right to family reunification, 22 September 2003, 2003/86/EC,
OJ L 251/12, 3.10.2003.
Council Meeting JHA, 2514th, Luxembourg, 5-6 June 2003, 9845/03 (Press 150).
Council Recommendation 21 December 1988 concerning Nationals of Member states
who hold a Diploma conferred in a third state, 89/49/EEC.
Council Resolution of 30 November 1994 on the admission of third-country nationals to
the territory of the Member states for study purposes, Official Journal C 274,
19/09/1996.
Council Resolution of 20 June 1994 on limitation on admission of third-country
nationals to the territory of the Member states for employment.
Council Resolution of 30 November 1994 on limitation on admission of third-country
nationals to the territory of the Member states for the purpose of pursuing
activities as self-employed persons.
General Approach of the JAI Council, 27 February 2003, on the Council Directive on
the right to family reunification, Brussels, Doc. 6912/03, 28 February 2003,
MIGR 16.
Directive 98/5/EC of the European Parliament and of the Council of 16 February 1998
to facilitate practice of the profession of lawyer on a permanent basis in a member
state other than that in which the qualification was obtained, No. L77/36.
Presidency Conclusions of the Lisbon European Council, 23 and 24 March 2000. See
also Communication from the Commission to the Spring European Council in
Barcelona, The Lisbon Strategy – Making Change Happen, Brussels, 15.1.2002,
COM(2002) 14 final.
Presidency Conclusions of the Tampere European Council 15-16 October 1999. See
points 18 and 21 of the Conclusions, SN 200/99.
Presidency Conclusions of the Thessaloniki European Council, 19 and 20 June 2003, p.
8.
 TOWARDS A PROACTIVE IMMIGRATION POLICY FOR THE EU? | 47

Proposal for a Council Directive, COM/2001/0386 final, on conditions of entry and

residence of third-country nationals for the purposes of paid employment and self-
employed economic activity of 11.07. 2001.
Proposal for a Council Directive concerning the status of third-country nationals who
are long-term residents, COM/2001/0127 final, 13.3.2001. Official Journal C 240
E, 28/08/2001.
Proposal for a Council Directive on the right to family reunification, COM/2002/0225
final, 27.08.2002. Official Journal C 203 E, 27/08/2002, p. 136 – 141.
Proposal for a Council Directive on the conditions of entry and residence of third-
country nationals for the purpose of studies, vocational training or voluntary
service COM/2002/548 final, 7.10.2002.
Proposal for a Council Directive concerning the status of third-country nationals who
are long-term residents, Brussels 24 July 2003, 10501/1/03 REV 1, MIGR 48.
Proposal for a Council Regulation amending Regulation (EC) 1030/2002 laying down a
uniform format for residence permits for third-country nationals, and Proposal for
a Council Regulation amending Regulation (EC) 1683/95 laying down a uniform
format for visas, COM/2003/0558 final, 24.9.2003.
Proposal for a European Parliament and Council Decision Establishing a programme for
the enhancement of quality in higher education and the promotion of intercultural
understanding through co-operation with third countries (Erasmus World) (2004-
2008), Com/2002/0401 final, Official journal C 331 E, 31/12/2002.
Regulation (EEC) No 1612/68 of the Council of 15 October 1968 on Freedom of
Movement for Workers within the Community as amended by Regulation 312/76,
No. L257/2.
Regulation No 1612/68 of the Council of 15 October 1968 on Freedom of Movement
for workers within the Community as amended by Regulation 312/76.
Resolution on the harmonization of national policies on family reunification, adopted
by the European immigration ministers in Copenhagen on the 1 and 2 June 1993.
Regulation (EC) n° 1030/2002 of 13.06.2002 laying down a uniform format for
residence permits of third-country nationals.
Regulation n° 859/2003 of May 2003 extending the provisions of Regulation (EEC) N°
1408/71 and Regulation (EEC) n° 574/72 to nationals of third countries who are
not already covered by these provisions solely on the ground of their nationality.
The Council of Europe’s Social Charter, 529 U.N.T.S. 89, entered into force Feb. 26,
1965.
The European Convention on Human Rights, Rome, 4 November 1950.
The European Convention on the Legal Status of Migrant Workers of 1977, Strasbourg,
24.11.1977. See also the Explanatory Report on the Convention, Council of
Europe, Strasbourg, 1978
United Nations report based on demographic considerations worldwide, projections for
the period 1995-2050, UN Secretariat ESA/P/WP. 160
48 | APAP & CARRERA

Other EU Official Documents

Antonio Vitorino, European Commissioner fro justice and Home Affairs, “Asylum is a
right, economic migration is an opportunity”, European Parliament, Strasbourg,
11 February 2003.
Athens Capstone Conference (2003), ‘Managing Migration for the benefit of Europe’,
Summary Report, May 15-16.
The Social Situation in the European Union (2002) Eurostat & European Commission,
Directorate General for Employment and Social Affairs, European Communities.

International Legislation (quoted)

Convention on the rights of the Child, Adopted and opened for signature, ratification
and accession by General Assembly resolution 44/25, of 20 November 1989,
entry into force 2 September 1990.
Council of Europe’s Social Charter, 529 U.N.T.S. 89, entered into force Feb. 26, 1965.
European Convention of Human Rights, Rome, 4 November 1950.
European Convention on the Legal Status of Migrant Workers, Strasbourg, 24.11.1977.
International Covenant on Civil and Political Rights, Adopted and opened for signature,
ratification and accession by General Assembly resolution 2200A (XXI) of 16
December 1966, entry into force 23 March 1976.
International Covenant on Economic, Social and Cultural Rights, Adopted and opened
for signature, ratification and accession by General Assembly resolution 2200A
(XXI) of 16 December 1966, entry into force 3 January 1976.
International Convention on the Protection of the Rights of All, Migrant Workers and
Members of Their Families, Adopted by General Assembly resolution 45/158 of
18 December 1990.
UN Convention on Migrant Workers, Adopted by the UN General Assembly on 18th
December 1990, and it has entered into force on 1st July 2003.
Universal Declaration of Human Rights, Adopted and proclaimed by General Assembly
resolution 217 A (III) of 10 December 1948.

Case Law references

- Court of Justice of the European Union
Case 167/73, Commission v. French Republic, [1974] ECR 359.
Case 181-73, R. & V. Haegeman v Belgium, [1974], of 30 April 1974.
Case 36/74, Walrave and Koch, [1974] ECR 1405, [1975] 1 CMLR 320.
Case 40/76, Kermaschek v. Bundesanstalt für Arbeit [1976] ECR 1669, Case C-243/91,
Belgian State v. Taghavi, [1992] ECR I-4401.
Case C-30/77, Régina v Pierre Bouchereau, Judgement of 27 October 1977.
Case 222/84, Marguerite Johnston v. Chief Constable of the Royal Ulster Constabulary,
of 15 May 1986.
Case 104/81, Hauptzollamt Mainz v. Kupferberg, [1982] ECR 3641.
 TOWARDS A PROACTIVE IMMIGRATION POLICY FOR THE EU? | 49

Case 59/85, State of the Netherlands v Ann Florence Reed, of 17 April 1986.
Case 12/86, Demirel V. Stadt Shcawäbisch Gmünd, [1987] ECR 3719.
Case 222/86, Union Nationale de Entraîneurs et cadres techniques professionnels du
football v Georges Heylens and others, of 15 October 1987.
Case C-18/90 ONEM v. Kziber [1991] ECR I-199.
Joined Cases C-92/92 and C-326/92 Phil Collins and Others [1993] ECR I-5145.
Case C-1/97 Birden [1998] ECR I-7747.
Opinion of the Advocate General La Pergola in Case C-356/98, Kaba v. Secretary of
State for the Home Department, [200] ECR I-2623.
Joined cases C-300/98 and C-392/98, Parfums Christian Dior SA v TUK Consultancy
BV and Assco Gerüste GmbH and Rob van Dijk v Wilhelm Layher GmbH & Co.
KG and Layher BV., of 14 December 2000.
C-459/99, Mouvement contre le racisme, l’antisémitisme et la xénophobie ASBL
(MRAX) v Belgian State, of 25 July 2002.
C-413/99, Baumbast and R v Secretary of State for the Home Department, of 17
September 2002.
Case C-60/00, Carpenter v. Secretary of State for the Home Department, Judgment of
11 July 2002.
Opinion of the Advocate General Geelhoed in Case C-109/01, Secretary of State for the
Home Department v Hacene Akrich, 27 February 2003.
Case C-109/01, Secretary of State for the Home Department v Hacene Akrich,
Judgment of 23 September 2003.

- European Court of Human Rights

Case Marckx v. Belgium, ECtHR, 27 April 1979.
Case X and Y v. UK, ECtHR, of 3 May 1983.
Case Boultif v. Switzerland, ECtHR, of 2 August 2001
Case Al Nashif v Bulgaria, ECtHR, of 20 June 2002.
Case Amrollahi v. Denmark, ECtHT, of 11 July 2002.
Case Jakupovic v. Austria, ECtHR, of 6 February 2003.

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 Annex 1

Table 6. Body of EU legislation on Third Country Nationals/EU citizens

Measures Third Country Nationals - EU Citizens
TCNs Amended Proposal for a Directive of the European
Parliament and of the Council on the rights of
citizens of the Union and their family members to
move and reside freely within the territory of the
Member states, COM(2003) 199 final, Brussels,
15.4.2003, 2001/0111 (COD).

Family • Council Directive on Family of:

Reunification the right to family • Workers –
reunification, 2003/86/EC of -Regulation (EEC) No 1612/68 of the Council of
22 September 2003, OJ L 15 October 1968 on Freedom of Movement for
251/12, 3rd October 2003 Workers within the Community as amended by
Regulation 312/76, No. L257/2, Article 10
-Council Directive of 15 October 1968 on the
abolition of restrictions on movement and
residence within the Community for workers of
Member states and their Families, 68/360/EEC,
No. L257/13.
• Self-employed persons and receivers of
services -Council Directive of 21 May 1973 on the
abolition of restrictions on movement and residence
within the Community for nationals of member
states with regard to establishment and the
provisions of services, 73/148/EEC, No. L172/14,
Article 1.1
• Retired persons – Council Directive of 28
June 1990 on the right of residence for employees
and self-employed persons who have ceased their
occupational activity, 90/365/EEC, No. L180/28,
Article 1.2
• Persons of independent means – Council
Directive of 28 June 1990 on the Right of
Residence, 90/364/EEC, No. L180/26, Article 1.2
• Students – Council Directive of 29 October
1993 on the right of residence for students,
93/96/EEC, No. L317/59

| 53
54 | APAP & CARRERA

Students- • Commission Proposal • Council Directive of 29 October 1993 on

Vocational for a Council Directive on the the right of residence for students, 93/96/EEC, No.
training, conditions of entry and L317/59
education & residence of third-country • Council Directive of 21 December 1988 on
voluntary nationals for the purpose of a General System for the recognition of higher-
service studies, vocational training or education diplomas awarded on completion of
voluntary service COM professional education and training of at least three
(2002)548 final, 7.10.2002 years’ duration, 89/48/EEC, No. L19/16.
• Directive 98/5/EC of the European
Parliament and of the Council of 16 February 1998
to facilitate practice of the profession of lawyer on a
permanent basis in a member state other than that
in which the qualification was obtained, No.
L77/36.
• Council Directive 78/686/EEC of 25 July
1978 concerning the mutual recognition of
diplomas, certificates and other evidence of the
formal qualifications of practitioners of dentistry,
including measures to facilitate the effective
exercise of the right of establishment and freedom to
provide services, OJ L 233, 24/08/1978, etc.

Freedom of Commission Proposal for a • Articles 17-22, 39, 43 and 49 TEC.

Movement and Council Directive concerning • Council Directive of 15 October 1968 on
residence the status of third-country the Abolition of restrictions on movement and
nationals who are long-term residence within the Community for workers of
residents, COM/2001/0127 Member states and their families, 68/360/EEC.
final • Regulation No 1612/68 of the Council of 15
October 1968 on Freedom of Movement for workers
within the Community as amended by Regulation
312/76.
Council Directive of 25 February 1964 on the Co-
ordination of special measures concerning the
movement and residence of foreign nationals which
are justified on the grounds of public policy, public
security or public health, 64/221/EEC.

Employment • Commission Proposal • Workers - Regulation (EEC) No 1612/68

and self- for a Council Directive, of the Council of 15 October 1968 on Freedom of
employment COM/2001/0386 final, on Movement for Workers within the Community as
activities conditions of entry and amended by Regulation 312/76, No. L257/2
residence of third-country
nationals for the purposes of • Self-employed persons and receivers of
paid employment and self- services -Council Directive of 21 May 1973 on the
employed economic activity of abolition of restrictions on movement and residence
11.07. 2001. within the Community for nationals of member
states with regard to establishment and the
provisions of services, 73/148/EEC, No. L172/14
• Retired persons – Council Directive of 28
June 1990 on the right of residence for employees
and self-employed persons who have ceased their
occupational activity, 90/365/EEC, No. L180/28,
etc.
 CENTRE FOR
EUROPEAN
POLICY
STUDIES
ABOUT CEPS

F
ounded in 1983, the Centre for European Policy Studies is an independent policy research
institute dedicated to producing sound policy research leading to constructive solutions to the
challenges facing Europe today. Funding is obtained from membership fees, contributions from
official institutions (European Commission, other international and multilateral institutions, and
national bodies), foundation grants, project research, conferences fees and publication sales.
GOALS
• To achieve high standards of academic excellence and maintain unqualified independence.
• To provide a forum for discussion among all stakeholders in the European policy process.
• To build collaborative networks of researchers, policy-makers and business across the whole of
Europe.
• To disseminate our findings and views through a regular flow of publications and public events.
ASSETS AND ACHIEVEMENTS
• Complete independence to set its own priorities and freedom from any outside influence.
• Authoritative research by an international staff with a demonstrated capability to analyse policy
questions and anticipate trends well before they become topics of general public discussion.
• Formation of seven different research networks, comprising some 140 research institutes from
throughout Europe and beyond, to complement and consolidate our research expertise and to
greatly extend our reach in a wide range of areas from agricultural and security policy to climate
change, JHA and economic analysis.
• An extensive network of external collaborators, including some 35 senior associates with
extensive working experience in EU affairs.
PROGRAMME STRUCTURE
CEPS is a place where creative and authoritative specialists reflect and comment on the problems and
opportunities facing Europe today. This is evidenced by the depth and originality of its publications
and the talent and prescience of its expanding research staff. The CEPS research programme is
organised under two major headings:

Economic Policy Politics, Institutions and Security

Macroeconomic Policy The Future of Europe
European Network of Economic Policy Justice and Home Affairs
Research Institutes (ENEPRI) The Wider Europe
Financial Markets, Company Law & Taxation South East Europe
European Credit Research Institute (ECRI) Caucasus & Black Sea
Trade Developments & Policy EU-Russian/Ukraine Relations
Energy, Environment & Climate Change Mediterranean & Middle East
Agricultural Policy CEPS-IISS European Security Forum

In addition to these two sets of research programmes, the Centre organises a variety of activities
within the CEPS Policy Forum. These include CEPS task forces, lunchtime membership meetings,
network meetings abroad, board-level briefings for CEPS corporate members, conferences, training
seminars, major annual events (e.g. the CEPS International Advisory Council) and internet and media
relations.

Place du Congrès 1 ▪ B-1000 Brussels ▪ Tel: (32.2) 229.39.11 ▪ Fax: (32.2) 219.41.51 ▪ http://www.ceps.be