Admission Procedures and Rights of TCNs in the EU: Problem - PowerPoint PPT Presentation

Admission Procedures and Rights of TCNs in the EU: Problem Questions. Dr Diego Acosta Professor of European and Migration Law D.acosta@bristol.ac.uk Twitter @dacostalaw www.diegoacosta.eu

Key questions • Who is a TCN? Not and EU Citizen. • What are their different legal statuses in terms of admission and rights? – Different types of TCNS and different Directives. • Nationality. • Family relationship. • Length of residence. • Profession. • Human Rights aspects. 2

So what do we have? • Dir. 2004/38 EU citizens and family members in a second MS. • Dir. 2003/109 Long-Term Residence. • Dir. 2003/86 Family Reunion. • Dir. 2011/98 Single Permit. • Dir. 2009/50 Highly Skilled Workers (re-negotiation). • Dir. 2016/801 Researchers and Students. • Dir. 2014/66 Intra Corporate Transferees. • Dir. 2014/36 Seasonal Workers. • Migrants in irregular situation. 15/06/2020

Also consider… • International law Instruments (ECHR , etc…) • EU Charter of Fundamental Rights (Articles 15, 30 and 31). • EU Asylum Directives. • Social Policy Directives (Art 153 TFEU). E.g. Directive 2008/94 protection of employees in case of insolvency. Case C-311/13 Tümer. • Agreements with third countries. E.g. EEA, Switzerland, Turkey.

IRAC structure • Issue. Who is the individual? Nationality, family status, length of residence, profession, human rights aspects. • Rule. What Directive or Directives need to be used to solve his/her issue? • Apply. By using case law when needed. – https://www.ru.nl/law/cmr/documentation/cmr- newsletters/cjeu-overview/ • Conclusion.

First Case • Susan is a US national. Her husband Michael is also a US national residing in France with a long- term residence permit. Michael would like her wife to be reunited with him but the French authorities are asking him to prove that he has a flat in Paris of at least 60 square meters. The authorities have told him that this is in order to comfortably accommodate his wife once she arrives to France. Moreover, Michael is not sure on whether her wife will be able to start working once he moves with him to France. However, a friend has told him she will need to wait for a year before she obtains a work permit.

First Case • Art. 4 (1) Dir. 2003/86 – 1. The Member States shall authorise the entry and residence, pursuant to this Directive and subject to compliance with the conditions laid down in Chapter IV, as well as in Article 16, of the following family members: (a) the sponsor ´ s spouse. • Art. 7 (1)(a) Dir. 2003/86 – 1. When the application for family reunification is submitted, the Member State concerned may require the person who has submitted the application to provide evidence that the sponsor has: – (a) accommodation regarded as normal for a comparable family in the same region and which meets the general health and safety standards in force in the Member State concerned;

Case Chakroun C-578/08 • 43. Since authorisation of family reunification is the general rule, the faculty provided for in Article 7(1)(c) of the Directive must be interpreted strictly. Furthermore, the margin for manoeuvre which the Member States are recognised as having must not be used by them in a manner which would undermine the objective of the Directive, which is to promote family reunification, and the effectiveness thereof. – Also think about general principles of EU law, in particular, effectiveness and proportionality.

Wife ´ s work • Article 14. Directive 2003/86 • 1. The sponsor's family members shall be entitled, in the same way as the sponsor, to: • (b) access to employment and self-employed activity; • 2. Member States may decide according to national law the conditions under which family members shall exercise an employed or self-employed activity. These conditions shall set a time limit which shall in no case exceed 12 months, during which Member States may examine the situation of their labour market before authorising family members to exercise an employed or self-employed activity.

Wife ´ s work • Article 11. Directive 2003/109, Equal treatment. • 1. Long-term residents shall enjoy equal treatment with nationals as regards: • (a) access to employment and self-employed activity, provided such activities do not entail even occasional involvement in the exercise of public authority, and conditions of employment and working conditions, including conditions regarding dismissal and remuneration;

Second Case • Denis is a Nigerian national. He works as a petroleum engineer at a company in Madrid, Spain. His salary is 80,000 EUR after taxes per year. Another oil company based in Amsterdam, the Netherlands, offers him a better package. However, Denis has only resided for 11 months in Spain and a colleague tells him that since he has not yet obtained long term residence he will not be able to move to the Netherlands unless he goes back to Nigeria first and applies for a residence permit at the Dutch consulate in Lagos. He is a bit uncertain about this advice. In fact, his friend Toby, also a petroleum engineer working for a Russian oil company, could directly move from the company’s office in Madrid to the ones in Amsterdam last year, without having to first go to Lagos. • Moreover, Denis would like to bring his wife from Lagos but he is told he would need to have resided for at least a year in Spain before he can start an application.

Second Case • Is Denis a highly skilled worker? – Art. 5(3) Dir. 2009/50: the gross annual salary resulting from the monthly or annual salary specified in the work contract or binding job offer shall not be inferior to a relevant salary threshold defined and published for that purpose by the Member States, which shall be at least 1,5 times the average gross annual salary in the Member State concerned. – Art. 2(g) ‘higher professional qualifications’ means qualifications attested by evidence of higher education qualifications or, by way of derogation, when provided for by national law, attested by at least five years of professional experience of a level comparable to higher education qualifications and which is relevant in the profession or sector specified in the work contract or binding job offer;

Second Case • Wife ´ s permit. Art. 15 Dir. 2009/50: • 1. Directive 2003/86/EC shall apply with the derogations laid down in this Article. • 2. By way of derogation from Articles 3(1) and 8 of Directive 2003/86/EC, family reunification shall not be made dependent on the requirement of the EU Blue Card holder having reasonable prospects of obtaining the right of permanent residence and having a minimum period of residence.

Second Case • Second MS: • Art. 18 Dir. 2009/50. • CHAPT PTER V • RESIDE DENC NCE IN IN OTHER MEMBER STATES TES • Article 18 • Condi ditions ons • 1. After eighteen months of legal residence in the first Member State as an EU Blue Card holder, the person concerned and his family members may move to a Member State other than the first Member State for the purpose of highly qualified employment under the conditions set out in this Article. • What about Toby, how is it possible he could move last year?

Second Case • Dir. 2014/66, Art. 22. Intra-Corporate Transferees. • Article 22 • Long-te term rm mobility ty • 1. In relation to third-country nationals who hold a valid intra-corporate transferee permit issued by the first Member State and who intend to stay in any second Member State and work in any other entity, established in the latter and belonging to the same undertaking or group of undertakings, for more than 90 days per Member State, the second Member State may decide to: • (a) • apply Article 21 and allow the intra-corporate transferee to stay and work on its territory on the basis of and during the period of validity of the intra-corporate transferee permit issued by the first Member State; or • • (b) • apply the procedure provided for in paragraphs 2 to 7.

Second Case • Dir. 2014/66, Art. 22. Intra-Corporate Transferees. • Article 22 • Long-te term rm mobility ty • 1. In relation to third-country nationals who hold a valid intra-corporate transferee permit issued by the first Member State and who intend to stay in any second Member State and work in any other entity, established in the latter and belonging to the same undertaking or group of undertakings, for more than 90 days per Member State, the second Member State may decide to: • (a) • apply Article 21 and allow the intra-corporate transferee to stay and work on its territory on the basis of and during the period of validity of the intra-corporate transferee permit issued by the first Member State; or • • (b) • apply the procedure provided for in paragraphs 2 to 7.