New rules for non-EU nationals coming to the EU for studies

25 March 2013
by eub2 -- last modified 25 March 2013

The European Commission is proposing to make it easier and more attractive for non-EU national students, researchers and other groups to enter and stay in the EU for periods exceeding three months. New legislation will set clearer time limits for national authorities to decide on applications, provide for more opportunities to access the labour market during their stays and facilitate intra-EU movement.

What are the current rules?

The overall objective of the current EU legislative framework is to promote Europe as a world centre of excellence for studies, scientific research and other exchanges. This framework consists of:

    Directive 2004/114/EC on students, which sets out mandatory rules for the admission of non-EU national students, with an option for Member States to apply the Directive for school pupils, volunteers and unremunerated trainees. If they fulfil the conditions, students are entitled to a residence permit, have certain rights with regard to employment or self-employment which allows them to cover a part of the cost of their studies as well as limited rights to intra-EU mobility in order to pursue their studies in different Member States.

    Directive 2005/71/EC on researchers, which provides for a fast-track procedure for the admission of non-EU national researchers who have signed a hosting agreement with a research organisation approved by the Member State. The hosting agreement confirms the existence of a valid research project, and that the researcher has the necessary scientific skills to complete the project as well as sufficient resources and health insurance. Researchers can teach and can go to another Member State for up to three months as part of their research project.

These EU rules allow non-EU nationals to acquire skills and knowledge and contribute to Europe's competitiveness. They encourage mutual enrichment between different actors and better familiarity among cultures.

Why does the Commission propose to amend these rules?

In 2011 the Commission presented implementation reports on these Directives, which identified a number of weaknesses.

In 2012 the Commission launched a series of different stakeholders' consultations, including an on-line public consultation. The results of the consultation clearly demonstrated that non-EU national students, researchers and the other groups covered by the current Directives often do encounter difficulties when they want to move to the EU, such as:

    Conditions to enter and stay in the EU are not clear enough and vary between Member States: a number of identified problems were related to the divergent frameworks for issuing visas and/or residence permits. For instance, in the case of researchers, the fact that the residence permit may be given for a shorter period than the duration of the research project can lead to unnecessary complications (cost, time invested, insecurity etc.) related to the need to re-apply for a permit. In addition, often rules on conditions for admission are also not adequately communicated. Such lack of transparency makes it more difficult for students, researchers and other groups of non-EU nationals to come to the EU.

    Applicants often do not know when to expect a decision by Member States on their application for admission: the absence of time limits for assessing applications creates additional uncertainty regarding the outcome of their application which may determine whether they move to another country or not. This may also affect the research organisations and educational establishments concerned, and ultimately undermine the objectives of the Directive.

    Students have limited possibilities to fund their stay through work and there is often no possibility for students and researchers to identify working opportunities in the EU following graduation or the termination of their research project. Also, under current legislation researchers' family members are not guaranteed access to the labour market.

    Moving from one Member State to another can be difficult or even impossible, which has a negative impact on the transfer of skills and knowledge between Member States. This affects for example Erasmus Mundus students enrolled in joint programmes who study in at least two different EU countries (compulsory mobility), but are facing difficulties obtaining the necessary visa.

    Rules are optional for school pupils, volunteers and unremunerated trainees, leading to wide variations between Member States in terms of coverage of groups. Remunerated trainees and au-pairs, who are not covered by any common rules at EU level despite facing similar challenges, would also benefit from increased protection.

Why do we need students and researchers from third countries to come to the EU?

It is crucial to bear in mind that the EU is facing important structural challenges. Despite the current economic downturn and the rising unemployment levels, many EU Member States still struggle to fill many skilled labour positions. There is evidence that this struggle is going to persist during the decade ahead for both economic and demographic reasons. As an example, according to the Commission's Agenda for new skills and job, it is estimated that by 2015 shortages of ICT practitioners will be between 384 000 and 700 000 jobs, whereas in the health sector there will be a shortage of about 1 million professionals in the by 2020 - and up to 2 million if ancillary healthcare professions are taken into account.

One of the problems is that the EU is not able to attract the workforce it needs while other countries worldwide are doing much better when it comes to making it more appealing for these talents to join them at the earlier stage of universities studies and research projects. The U.S., Australia and Japan, for example, have better incentives to attract talents and to convince them to join their job market, in turn benefitting from the skills and knowledge they have acquired. It is therefore in the EU's own interest to become more attractive for foreign students and researchers and to increase its appeal as a world centre for excellence. More exchange students and international scholars will lead to economic growth, spur innovation and lead to more jobs in the long run.

What will change?

An efficient migratory system that attracts talents from abroad requires one common set of admission conditions and requirements, as well as clear rights and opportunities. Moreover, intra-EU mobility, due to its cross-border character, can only be achieved by common rules at EU level.

The objective is to improve the legal framework applied to non-EU nationals willing to come and temporarily stay in the EU for more than three months for specific purposes.

This entails an increased level of harmonisation through a single and more coherent legislative instrument in the form of a proposal for a recast Directive with a broader scope, which will modify and replace the existing Directives on Students and Researchers.

Concretely, the recast Directive will ensure:

Clearer procedural safeguards regarding the assessment of applications

With the introduction of time limits the application process will become more straight-forward and transparent, also facilitating non-EU nationals' mobility.

While some parts of the EU immigration acquis already provides for time limits (for example the Blue Card Directive), the proposed Directive lays down a time-limit of 60 days for Member States' authorities to decide on an application. The proposed time limit is further reduced to 30 days in the case of non-EU national students and researchers who come to the EU under Union mobility programmes such as Erasmus Mundus and Marie Curie Actions and their successors.

Increased mobility between Member States

This will allow non-EU national students and researchers, as well as the researcher's family members to circulate between Member States on the basis of the initial authorisation for a given period of six up to twelve months. This is in line with the approach taken under the EU Blue Directive.

Currently, in particular for students, the intra-EU mobility provisions are relatively weak, when non-EU national students should be able to reap the benefits of being mobile within the European Higher Education Area. The new mobility provisions will also cover remunerated trainees.

For Erasmus Mundus students and Marie Curie researchers (and successor programmes), the initial authorisation will cover the whole period of study, no matter how many Member States are involved. No new application or specific information will be needed, when the information on those Member States where the student or researcher intends to go is known in advance. This will avoid situations when a non-EU national may have succeeded in applying for an Erasmus Mundus scholarship, but he or she may have been refused entry into the EU on the basis of immigration rules.

In order to facilitate mobility, Member States will need to set up contact points for receiving and transmitting information needed to implement intra-EU mobility. This would follow the example of the contact points already established under existing migration acquis, such as the Blue Card Directive and the proposal for a Directive on intra-corporate transferees.

Increased access to the job-seeking markets

Students during their studies will obtain the right to work for a minimum period of 20 hours per week, allowing for more possibilities to be autonomous and fund themselves (under the current Students Directive this right is limited to minimum 10 hours). Yet, their access to the labour market may be restricted by Member States depending on the situation of the labour market.

Both students and researchers after graduation or after their research contract comes to an end could be granted the possibility to remain under certain conditions on the territory of the respective Member State for a period of 12 months to identify job opportunities or set up a business. In a period of more than 3 and less than 6 months, Member States could ask the non-EU nationals to provide documentation that they are genuinely looking for a job (for example, copies of the letters and CVs sent to employers) or are in the process of setting up a business. After 6 months, they could also ask the non-EU nationals to provide evidence that they have a genuine chance of being hired or of launching a business. In order to be able to make use of this possibility, non-EU national students and researchers have to comply with the general conditions for admission of the Directive, notably by proving that they have sickness insurance for all the risks normally covered by the host Member State and that they are not considered a threat to public policy, public security or public health.

This would not amount to an automatic right to work, as, granting a work permit remains a national responsibility.

Who is concerned?

Under the existing Student Visa Directive rules for non-EU national schools pupils, volunteers and unremunerated trainees were optional. Some countries applied these rules whereas others did not, as evidenced in the implementation report. Today's proposal makes the provisions for these groups mandatory, which will increase the EU attractiveness as a destination for them.

The scope of the proposal is broadened to cover also au-pairs and remunerated trainees.

Au pairs are not covered by any EU legislation despite their specific vulnerability which is linked to the family context in which they work (which cannot be subject to regular controls). There is evidence that au-pairs can be exploited by host families in terms of long hours or underpayment. In order to address their specific needs, the proposal gives a common definition to this group and provides for specific conditions for admission, in particular regarding: the age range (i.e. not less than 17 but not more than 30 with possibility for 'justified exceptions' regarding the upper age limit) and evidence that the host family undertakes responsibility for them as regards subsistence, accommodation and social security risks.

Similarly, remunerated trainees face challenges comparable to those met by unpaid trainees (such as underpaid forced labour work or disguised employment). As they fall outside the scope of the proposal on intra-corporate transferees (ICTs), and would therefore risk not to be covered by any type of EU legislation, their protection is now foreseen under the recast.

Source: European Commission