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Brussels, 16 May 2007
Content of the communication
In December 2006, the European Council invited the Commission to propose ways to integrate legal migration opportunities into the Union's external policies in order to develop a balanced partnership with third countries adapted to specific EU Member States' labour market needs; to suggest ways and means to facilitate circular and temporary migration; and to present detailed proposals on how to better organize and inform about the various forms of legal movement between the EU and third countries. The Communication that was adopted today constitutes the Commission's response to this invitation.
This Communication deals with two main issues.
A. Mobility partnerships
First, it proposes the negotiation of mobility partnerships between the EU and third countries ready to work actively to better manage migration flows, and in particular to fight illegal migration, in partnership with the EU, in exchange for enhanced possibilities of mobility between their countries and the EU for their citizens, in terms of legal migration opportunities and of short term movements (short stay visa issues). The Communication proposes to start rapidly the negotiation of a limited number of pilot partnerships so as to test the feasibility of the concept. Mobility partnerships will require close cooperation between the EC and interested Member States, as some of their components (in particular the opening up of legal migration opportunities for citizens of the relevant third countries) fall within the remit of Member States. Negotiation of any mobility partnership would need to be based on clear political guidelines from the Council, on the basis of a recommendation from the Commission. Mobility partnerships can make a major contribution to joint management of migration flows in a spirit of shared responsibility, in line with the principles of the 'Global Approach to Migration'. The Commission will recommend that exploratory contacts be initiated with a limited number of potentially interested third countries.
Mobility partnerships will be tailored to the specifics of each relevant third country, to the ambitions of the country concerned and of the EU, and to the level of commitments which the third country is ready to take on in terms of action against illegal migration and facilitating reintegration of returnees, including the availability of employment opportunities. Possible components of a mobility partnership will depend on the specific situation. A typical mobility partnership could include:
(1) Commitments expected from the third country concerned, as for instance
• An additional commitment to readmitting, under clearly defined circumstances, third country nationals and stateless persons who arrived in the EU through the territory of the country concerned, where appropriate in the framework of an EC readmission agreement;
• Initiatives to discourage illegal migration through targeted information campaigns;
• Efforts to improve border control and/or management, supported as appropriate by operational cooperation with Member States and/or FRONTEX;
• Efforts to improve the security of travel documents against fraud or forgery, notably by using biometrics and, where relevant, the security of the documents used as a basis for issuing them (e.g. national identification documents);
• A commitment to cooperating and exchanging information with relevant authorities in EU Member States with a view to reducing the security risks linked to international movements of people;
• Specific measures and initiatives seriously to combat migrant smuggling and human trafficking;
• Commitments to promote productive employment and decent work, and more generally to improve the economic and social framework conditions, should also be sought from the third country concerned as they may contribute to reducing the incentives for irregular migration.
Third countries could possibly benefit from specific financial and/or technical assistance provided by the EC and/or participating Member States, for example to facilitate the economic and social reintegration of returning migrants.
(2) Commitments to be given by the EC and Member States participating, including for example:
(a) Improved opportunities for legal migration for nationals of the third country
Mobility partnerships could cover economic migration exclusively or extend to other forms of legal migration such as migration for study or other forms of training. Mechanisms to facilitate economic migration should be based on the labour needs of interested Member States, as assessed by them, and taking into account the principle of Community preference.
• Mobility partnerships could include a consolidated offer by several Member States, on a voluntary basis, to facilitate access to their labour markets to the nationals of the third country in question;
• The mobility partnership could also include a more favourable treatment of the nationals of the country in question as far as the conditions for admission of certain categories of migrants are concerned.
(b) Assistance to help third countries develop their capacity to manage legal migration flows.
Financial and/or technical assistance could be provided by the EC – in particular in the framework of the thematic programme on migration and asylum – and/or Member States participating in a given partnership:
• providing information on the labour market needs of EU Member States, on their values and on the conditions for emigrating there;
• additional efforts to support the mobility of students, researchers, young professionals, volunteers and those involved in youth organisations from the country in question;
• providing pre-departure linguistic or technical training for persons with a concrete employment perspective abroad; and
• job-matching services.
The EC has already acquired certain experience of providing this sort of assistance to third countries and the Commission can envisage to extend it on a more systematic basis to third countries participating in mobility partnerships. The MEDA project to support the Moroccan National Agency for Employment and Skills (ANAPEC) and the Migration Information and Management Centre which the EC is helping to set up in Mali to perform some of the above-mentioned tasks could serve as models for similar initiatives that could form part of mobility partnerships.
(c) Measures to address the risk of brain drain and to promote circular migration or return migration
Mobility partnerships could include, at the request of the third country in question, measures to help address the risk of brain drain. They could also include mechanisms to facilitate circular migration, which by nature can help mitigate brain drain.
(d) Improvement and/or easing of the procedures for issuing short stay visas to nationals of the third country.
Such improvements could be considered at two different levels:
(i) Better organisation of the consular services of EU Member States in the country in question.
• Member States participating in the mobility partnership could give a commitment to the relevant third country to bring about practical improvements in the application procedures such as longer opening hours, a reinforcement of human resources, etc.;
• In parallel, they could also agree to improve consular cooperation locally. Commission Delegations in third countries party to a mobility partnership could play a useful role in fostering such cooperation;
• Member States could also make fuller use of the flexibility in the existing Community acquis (amended common consular instructions), which provides for instance that multiple entry visa valid for a long period (up to five years) can be issued to bona fide persons who need to travel frequently. Member States can also exempt visa applicants from the visa fee in individual cases; etc.;
• Such enhanced cooperation could result in several Member States opening a common visa application centre in a given third country, as envisaged in the Commission proposal to amend the common consular instructions.
(ii) Visa facilitation agreements for specific categories of people
More systematic improvements to the visa issuing procedures can also be offered in the form of visa facilitation agreements for specific categories of people to be negotiated between the EC and a third country willing to engage in a mobility partnership.
B. Circular migration
Second, the Communication looks at how circular migration can be fostered, as a tool that can both help address labor needs in EU Member States and maximize the benefits of migration for countries of origin, including by fostering skills transfers and mitigating the risks of brain drain. The Communication looks in particular at legislative and non-legislative measures that could facilitate circular migration and calls for a dialogue amongst Member States and relevant stakeholders on these issues. As circular migration raises a number of challenges, the Commission is also ready to look at the possibility of supporting innovative pilot schemes to test the feasibility of this concept.
Circular migration can be defined as a form of migration that is managed in a way allowing some degree of legal mobility back and forth between two countries.
The two main forms of circular migration which could be most relevant in the EU context are:
• Circular migration of third-country nationals settled in the EU: This category of circular migration gives people the opportunity to engage in an activity (business, professional, voluntary or other) in their country of origin while retaining their main residence in one of the Member States.
• Circular migration of persons residing in a third country: Circular migration could create an opportunity for persons residing in a third country to come to the EU temporarily for work, study, training or a combination of these, on the condition that, at the end of the period for which they were granted entry, they must re-establish their main residence and their main activity in their country of origin.
Measures to foster circular migration could in particular be introduced into some of the future legislative instruments already announced in the Policy Plan on legal migration, in particular the:
• Proposal for a Directive on the admission of highly skilled migrants: subject to further examination, measures to foster circularity could centre on further facilitating admission procedures for persons having already resided legally in the EU for a certain length of time (for highly qualified work, studies or other forms of training);
• Proposal for a Directive on the admission of seasonal migrants: the main measure to foster circularity would be introduction of a multiannual residence/work permit for seasonal migrants, allowing them to come back several years in a row to perform seasonal work.
• Proposal for a Directive on the admission of remunerated trainees: the possibility for third country nationals to come for a period of training in Europe should contribute to fostering brain circulation and to skills and knowledge transfer. In order to enhance circularity, the proposal could envisage a possibility for former trainees of coming back for limited periods for further additional training where appropriate to upgrade their skills.
The Commission will also reflect further on whether a proposal to introduce harmonised admission procedures for other categories of legal migrants could benefit circular migration. In addition, the Commission may in due course consider proposing adjustments to a number of existing legislative instruments in order to promote circular migration.
Practical conditions and safeguards will need to be included to ensure that circular migration meets its objectives and brings long-term benefits. The Commission intends to launch a debate on the basis of this Communication, notably with Member States on the measures required to ensure effective circularity of migration:
(1) Incentives to promote circularity
• The prospect of future opportunities for legal mobility towards the EU:
• Making the reintegration of returning migrants in their home country as smooth as possible (in particular professionally):
(2) Ensuring effective return
(3) Monitoring circular migration
(4) Reducing the risk of brain drain
(5) Partnership with third countries
(6) Bilateral agreements to promote secure circular migration
Existing community legal framework for movements of persons to the eu
Framework for legal migration
Since 1999, the EU has been progressively developing a common policy on legal immigration. So far three Directives regulating admission of third country nationals have been adopted at Community level.
Third country nationals wishing to pursue their studies in one of the Member States are covered by Directive 2004/114/EC. Following admission, they are given limited access to the labour market as a means of supporting their studies plus the possibility to continue their studies in another Member State. Member States may also apply this scheme to persons on voluntary service, unremunerated trainees and pupils.
Finally Directive 2005/71/EC on the procedures for admitting third country researchers to the Member States provides a flexible scheme aiming at attracting this group of migrants to the Community. Third country researchers admitted to a Member State under the Directive have the possibility to teach and pursue their research project in another Member State without a working permit.
The conditions for admission set by these Directives normally include sufficient resources, health insurance as well as the absence of threat to public health, security, etc. All the Directives include clear rules on withdrawal of the right to stay.
Beyond the admission schemes, third country nationals staying for longer periods in a Member State benefit from Directive 2003/109/EC, which places an obligation on Member States to grant long-term resident status to third country nationals who meet the conditions of sufficient resources and health insurance and who legally reside on their territory for at least five years. Long-term resident confers a long list of important socio-economic rights including intra-community mobility under certain conditions. Furthermore, long-term residents qualify for greater protection against expulsion.
In addition, the EU-Turkey Association Agreement – although not granting any right to move to an EU Member State, or between EU Member States, to take up employment - gives Turkish nationals free access to the labour market in the host Member State after four years of legal employment. It also stipulates that Member States that decide to enlist workers other than Community nationals should endeavour to give priority to Turkish workers.
Finally, third country nationals who are members of the family of EU national migrant workers enjoy certain derived rights under Directive 2004/38/EC. These include the right to free access to employment and the right to reside with the migrant worker in the host Member State. Furthermore, after residing with the migrant worker for a continuous period of five years they can acquire permanent resident status.
The 2005 Policy Plan on legal migration sets out the broad lines for further development of a common European policy on legal and, in particular, labour immigration, which is an important component of EU policies to compensate the negative effects of demographic ageing and meet the changing needs of labour markets. In this context, with the aim of attracting the professionals needed to sustain the EU's competitiveness, in September 2007the Commission will present a proposal for a directive on the conditions of entry and residence for highly skilled workers from third-countries. Three other proposals aimed at facilitating circular and temporary migration will be put forward addressing seasonal workers and remunerated trainees (both in autumn 2008), and intra-corporate transferees (2009). At the same time there is a need to provide a common secure legal status for all immigrant workers legally residing in the EU but not yet fulfilling the conditions for obtaining long-term resident status: a proposal to this end will also be presented in September 2007.
International trade agreements liberalising provision of services and establishment
In the context of its trade policy the European Community has entered into a number of international agreements which facilitate temporary movement of natural persons related to trade in services or investment. Commitments have been made both at multilateral level (WTO) and bilaterally (in the context of free trade agreements). One fundamental characteristic of these commitments is that the beneficiaries must not enter the EU labour market and must have obtained a services contract before they can apply to enter the territory of EU Member States. Such commitments relate only to the right to perform a given economic activity and do not cover visa and other conditions on entry, stay and work.
Framework for short term movements: the Schengen common visa policy
Within the framework of the Schengen cooperation, as one of the flanking measures necessary in order to establish an area without internal borders in which free movement of persons is ensured, a common visa policy has been developed for third country nationals -for stays of three months per six month period, providing in particular for mutual recognition of short stay visas issued on the basis of common procedures and conditions.
At the heart of this common policy lies Council Regulation n° 539/2001 of 15 March 2001 listing the third countries whose nationals must be in possession of visas when crossing the external borders (the "negative list") and those whose nationals are exempt from that requirement (the " positive list"). The two lists are determined by a considered, case-by-case assessment of a variety of criteria relating, inter alia, to illegal immigration, public policy and security, and the EU's external relations, also taking into consideration the implications of regional coherence and reciprocity.
The Convention implementing the Schengen Agreement of 14 June 1985 on the gradual abolition of checks at common borders (Article 8 et sq.) lays down the basic principles of the common visa policy, including mutual recognition of short stay visas, and defines both the conditions for entry with a view to a short stay for third country nationals exempt from the visa obligation, and for movement within the Schengen area by third country nationals exempt from or subject to the visa obligation. The Common Consular Instructions (CCI) and a series of decisions of the Executive Committee of Schengen and of the Council contain detailed rules on the conditions and procedures for issuing short stay visas.
Council Regulation n° 1683/95 of 29 May 1995 laid down a uniform format for short stay visas.
This common visa policy is fully implemented by the Member States and associated countries that are part of the Schengen area without internal frontiers. The Member States that joined the EU in 2004 and 2007 apply only Council Regulation n° 539/2001 and the uniform format for visas.
The Commission has presented a proposal recasting the whole of the Schengen acquis on the conditions and procedures for issuing visas. Once adopted, this proposed Visa Code will bring significant improvements for all visa applicants, whatever their nationality, such as an obligation to give reasons for any refusal of a visa and to offer the possibility of appeal, harmonisation of certain forms, a more precise definition of supporting documents, etc. The need to give visa applicants more information about their rights and obligations is addressed in the Visa Code, building on cooperation between local consulates.
EXAMPLES OF EC-FUNDED PROJECTS TO FACILITATE THE MANAGEMENT OF LEGAL MIGRATION FLOWS IN THIRD COUNTRIES AND CIRCULAR MIGRATION
Projects to facilitate orderly management of legal migration flows, including the provision of information on the possibilities and avenues for legal migration
a. Main focus on migration to the EU
b. Main focus on South-South migration
2. Projects to facilitate circular migration for migrants settled in the