Ref. Ares(2019)6224090 - 08/10/2019
EUROPEAN
COMMISSION
Brussels, 29.3.2019
SWD(2019) 1056 final
COMMISSION STAFF WORKING DOCUMENT
EXECUTIVE SUMMARY OF THE FITNESS CHECK
on EU Legislation on legal migration
{SWD(2019) 1055 final}
EN
EN
1. Context and objectives
The EU legal migration framework is laid down in several directives1, adopted between 2003
and 2016, which cover various categories of third-country nationals and regulate various
aspects of the migration process (in particular admission and residence conditions, equal
treatment rights and mobility within the EU).
The main purpose of this fitness check is to assess whether the EU legal migration framework is
still fit for purpose, to identify
any inconsistencies and gaps,
and to look for possible ways
to
streamline and simplify existing rules. The fitness check, which started in 2016, was
supported by a thorough
consultation process – including an open public consultation and
targeted consultation of key stakeholders (Member States, the European Parliament, the
European Economic and Social Committee, Non-Governmental Organisations, and economic
and social partners) – as well as by an external study.
2. Key findings
The fitness check assessed the EU's
acquis on legal migration against
five criteria: relevance,
coherence, effectiveness, efficiency, and EU added value.
Relevance
EU policy on legal migration remains broadly in line with the
general objectives set at the
1999 European Council in
Tampere and translated into the
Lisbon Treaty,
namely to ensure
efficient management of migration flows to the EU and fair treatment for legally resident third-
country nationals. However, there have been changes in the policy
specific objectives,
following changes in the overall political framework in the field of migration: from setting
common minimum standards on rights, admission and residence conditions for
all third-country
nationals, to attracting
the third-country nationals that the EU economy 'needs', who can
contribute to addressing skills and labour shortages, thus making the EU more competitive.
The evaluation has shown that
the objectives of the Directives are still relevant to the EU's
current needs in terms of legal migration. However, a number of potential
gaps between
objectives and needs have been identified. These relate mainly to the directives’
material scope (they do not cover various problems occurring in the course of the various 'migration phases',
such as the procedures for obtaining an entry visa), and their
personal scope (which does not
include – at least as far as admission conditions are concerned – major categories of third-
country nationals, such as non-seasonal low- and medium-skilled workers, job seekers, service
providers covered by the EU’s trade commitments except intra-corporate transferees, and self-
employed people/entrepreneurs).
Although these gaps are generally covered by
national rules (for instance, all Member States
have national schemes for the admission of low- and medium-skilled third-country workers),
and although these categories are partly covered at EU level as regards admission procedures
and equal treatment (through the Single Permit Directive), the result is
a fragmented system.
Though additional, more reliable data is needed to assess the magnitude of these gaps precisely,
these gaps will need to be addressed by future policy developments. The evaluation also
recognises the need to better understand and consider how socioeconomic and environmental
factors (including climate change) may affect the relevance of the EU legal migration
acquis.
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Nine directives are covered (though only those that have been in force for several years have been assessed
in terms of effectiveness and efficiency): family reunification (2003); long-term residents (2003); students
and researchers (2004, 2005; recast in 2016); EU Blue Card (2009); Single Permit (2011); seasonal workers
(2014); intra-corporate transferees (2014).
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Coherence
The analysis has shown that the legal migration directives and their objectives
are consistent
and complement one another overall. However, it has also revealed a number of specific
internal coherence issues, most of them due to: a) the '
sectoral approach', which implies that
different directives regulate in different ways the specific needs and characteristics of the
categories of migrants covered; and b) the different historical origins of the directives, each of
which had its own specific characteristics, policy constraints and negotiation history. Some
internal coherence issues (e.g. in terms of different procedural requirements across different
categories) have
actually affected
the extent to which the directives' objectives have been
achieved and/or have created
unnecessary administrative burdens.
Different national implementation choices have also exacerbated certain inconsistencies: in
particular, the different ways in which the directives' numerous
'optional clauses' have been
implemented, and the possibility for Member States to retain
parallel national schemes for
highly-skilled workers and long-term residents.
For instance,
the existence of national permits
for permanent residents has limited the impact on the harmonisation of different types of long-
term residence status provided for by the Long-Term Residents Directive, which has been less
successful than intended (three million EU long-term residents' permits vs. seven million
national ones). Furthermore, the current regulatory framework for recruiting the same category
of highly-skilled workers (which is possible under both the EU Blue Card and national
schemes) is complex for third-country nationals and employers alike.
As regards
external coherence, the EU legal migration directives interact with many
other EU
policies (especially those relating to asylum, irregular migration, borders and visas, justice and
fundamental rights, employment and education, external relations, and trade). Although n
o
major inconsistencies have emerged from the evaluation, there are many aspects where
more
efficient interaction and complementarity with other policies could be developed, especially
with overall EU policy on growth and employment –in a context in which migration is likely to
play an increasingly important role in addressing labour and skills shortages in an ageing
European society – and with EU external policy.
Effectiveness
The extent to which the objectives of the legal migration
acquis are achieved depends both on a
wide range of policy and legal instruments at EU and national level and on a number of social
and economic factors which go beyond implementing the
acquis. Although it was difficult to
isolate the precise impact of the legal migration
acquis on the attainment of the overall
objectives, it proved possible to identify a number of
positive effects.
Firstly, national systems for legal migration have been
brought into line with each other to
some extent as regards the categories of third-country nationals covered, with varying degrees
of harmonisation for admission conditions, procedures and rights. Secondly, the directives have
had a generally positive impact on the
level of rights granted to third-country nationals and on
the protection of family life. Finally, the
acquis has also contributed to the objective of
managing economic migration flows into the EU more efficiently, so as to help address labour
and skills shortages on the EU labour market, thereby contribute making the
EU more
competitive overall.
However, the same factors that have caused the coherence issues highlighted above (i.e. the
sectoral approach, the existence of parallel national schemes, and the inclusion of optional
clauses in the directives) have also
prevented the specific objectives from being achieved in
full. For instance, the provisions to facilitate
intra-EU mobility under the first generation of
directives are often not very different from first admission procedures and are therefore not
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fully effective (though the overall impact of the intra-EU mobility rules will need to be
reassessed once the more far-reaching provisions included in the later directives on intra-
corporate transferees and students and researchers are implemented in full). The impact on
other specific objectives, such as promoting the
integration of third-country nationals and
preventing labour exploitation, has also been limited, as the directives go only part of the way
to addressing these issues.
While some of the obstacles that have prevented these objectives from being achieved in full go
beyond the
acquis – and some go beyond migration policy in general (relating e.g. to economic,
labour market and fiscal policies; individual choices and preferences; language issues) –
there
are a number of inherent shortcomings in the EU framework (e.g. fragmentation, limited
coverage of EU rules, incorrect implementation or application of the common rules). These
could be addressed through measures ranging from better enforcement to, possibly, legislative
measures.
Efficiency
The same challenges encountered in measuring the effectiveness of the legal migration
directives (especially external factors affecting migrant flows, and the fact that determining
how many economic migrants are admitted is a national prerogative) have also affected the
evaluation of the directives' efficiency. The
lack of sufficient evidence to assess the precise
costs and benefits associated with implementing the legal migration directives suggests that
there is a need to improve the collection of relevant data at both national and EU level.
This is why the efficiency assessment has focused on
qualitative identification of the types of
costs and benefits associated with the EU legal migration
acquis by stakeholder, on the one
hand, and on the
direct administrative costs and benefits associated with implementing the
directives, on the other (compliance costs, administrative fees payable by applicants, costs
incurred by the public administration when reviewing applications, issuing permits or handling
appeals. On the latter, in particular, the partial evidence available suggests that, while the costs
for renewals tend to not be fully covered by the corresponding fees, for most types of permits
the fees sufficiently cover the administrative costs incurred by the public administration.
Overall, administrative costs for third-country nationals seem to be higher than for public
authorities, which is consistent with the feedback received through the public consultation. The
administrative costs for employers are also estimated to be quite high.
Finally, the assessment of the practical application of the directives has identified
different
practices in implementation by the Member States, with different levels of efficiency (e.g.
simple and easily accessible application forms; clear information on permits and rights,
provided in several languages; a single agency managing the application process; facilitated
visa procedures). This also shows that there is
further scope for simplifying procedures for
managing legal migration flows.
EU added value
Overall, the legal migration directives have brought
positive effects that
would have not been
achieved by the Member States acting alone. All stakeholders, including Member States, have
confirmed
the continued EU added value of having a shared EU legal framework for legal
migration.
The main positive effects identified by the evaluation are:
a degree of
harmonisation of conditions, procedures and rights, helping to create a level
playing field across Member States;
simplified administrative procedures;
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improved legal certainty and predictability for third-country nationals, employers, and
administrations;
improved recognition of the rights of third-country nationals (namely the right to be
treated on an equal basis with nationals in a number of important areas, such as working
conditions, access to education and social security benefits, and procedural rights);
improved intra-EU mobility for certain categories of third-country nationals (e.g. ICTs,
researchers and students).
3. Follow-up
The legal migration directives evaluated in this fitness check may be considered largely ‘fit for
purpose’. The fitness check identified several
positive effects of the EU framework on legal
migration, proving the
continued relevance and
added value of having an EU framework to
regulate this field.
However, the current legal migration framework had a limited impact vis-à-vis the overall
migration challenges that Europe is facing, and the fitness check has identified a
number of
critical issues in this respect. If the EU wants to achieve in full the Treaty objective of
developing a common legal migration policy as a key element of a comprehensive policy on
management of migratory flows, these issues will need to be addressed in future through a wide
range of measures, such as:
achieving a more harmonised and effective approach to
attract highly skilled workers from
third countries, as the Commission had proposed in the Blue Card reform;
ensuring stronger
enforcement of the directives, to improve their implementation and
practical application – and therefore their overall effectiveness;
promoting
information campaigns to raise awareness of the rights and procedures
established by EU legal migration instruments – this would help addressing the coherence
issues with regard to the Member States’ implementation, and increasing the relevance and
EU added value of these instruments;
improving the
gathering of data, evidence and information on the implementation of the
acquis by supporting expert networks, research and studies, and improving the way Member
States communicate statistics – this would contribute to improve the efficiency and
effectiveness of the acquis;
facilitating
information-sharing and cooperation between Member States, especially in
relation to the
intra-EU mobility of third-country nationals – this would help exploiting to
the fullest the EU added value and facilitate the application of the intra-EU mobility rules;
providing Member States – through non-binding instruments – with
clarification and
interpretative guidance on applying the legal migration directives in a harmonised way –
this would help addressing the identified coherence issues;
considering putting forward
legislative measures to tackle the inconsistencies, gaps and
other shortcomings identified, so as to simplify, streamline, complete and generally improve
EU legislation.
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Document Outline