On 8 October the Justice and Home Affairs Council held a first discussion on the European Commission proposals, presented last July, aiming at facilitating entry of third country workers in the EU: intra-corporate transferees and seasonal workers. As both proposals harmonised the conditions of entry and residence for third-country nationals as well as procedures for issuing the necessary permits, they are based on Article 79(2)(a)(b) TFEU. As regards both proposals, several Member States recalled their right to determine the number of third-country nationals to be admitted to their territories, accordingly they stressed that the impact, of the proposals, on national labour markets must be taken into account.

It is important to recall that the under the Lisbon Treaty the Member States right to introduce measures on legal and illegal immigration has been substantially reduced. The national laws of the member states will be further harmonized in the context of the common immigration policy. The Lisbon Treaty solely refers to the right of the Member States to “determine the volumes of admission of third country nationals coming from third countries to their territory in order to seek work, whether employed or self-employed.” Nevertheless, there is the access to the labour market of third-country nationals already residing in a Member State and such movement will not be prevented.

The UK has an opt out from the area of freedom, security and justice, hence the Government can decide whether to opt in to measures on illegal immigration or on legal immigration. It is important to recall that legal migration has been governed by unanimity in the Council through the consultation procedure. However, under the Lisbon Treaty all common policy immigration measures are to be decided together by the European Parliament and the Council through the ordinary legislative procedure and by QMV in the Council. The Lisbon Treaty has, therefore, abolished the veto over legal migration hence the UK will see reduced its influence in the adoption of measures concerning these matters.

The Government has to decide by 14 October whether to opt in to the draft proposals. Damian Green, the Minister of State at the Home Office, has said to the European Scrutiny Committee that the Government will base its decision on the "implications for control of immigration, affordability, implications for the balance of UK and EU competence and issues of ECJ jurisdiction." Both proposals will have an impact on the Government plans to limit economic migration, will have financial implications as regards social security benefits, moreover once the UK decides to opt in it will be subject to the ECJ and the European Commission enforcement powers. Consequently, the government should exercise its right to opt out.

The Justice and Home Affairs Council discussed the Commission draft directive on conditions of entry and residence of third-country nationals in the framework of an intra-corporate transfer. The draft directive would establish a procedure for entry and residence for more than three months for third-country nationals and their family members in the framework of an intra-corporate transfer in the territory of member states. The draft proposal applies to third-country nationals who reside outside the EU and apply to be admitted to the territory of a Member State in the framework of an intra-corporate transfer.

The draft proposal defines, therefore, the conditions of entry and residence for more than three months for third-country nationals and of their family members. The Points Based System, UK’s visa application guides, specifying the criteria for admitting nationals from third countries, already provides for intra-company transfers (tier 2, skilled worker). According to Damian Green the draft directive has “some similarities” with the UK present arrangements. Nevertheless, there are provisions in the draft directive which conflict with UK immigration rules.

The applicants must provide evidence that the transfer is taking place between entities of a same group of undertakings and they are taking a post in the host entity as a manager, specialist or graduate trainee. Moreover, they must provide details of their professional or higher education qualifications as required.

Under the draft proposal, Member States may refuse an application if the above-mentioned conditions are not met or if the documents presented are falsified as well in cases where the employer has been sanctioned for undeclared work or illegal employment. Member States may also refuse an application on the grounds of volumes of admission of third-country nationals. The draft directive would not create a right of admission, consequently, it seems that Member States would continue to decide on the quotas of third-country nationals entering their territory for the purposes of intra-corporate transfer.

If all the conditions are met then the applicants will receive a specific residence permit entitling them to work as an intra-corporate transferees. The Member States would not be allowed to require an additional work permit. The intra-corporate transferee permit shall have at least one year period of validity and may last for three years.

The Commission has proposed a fast track entry procedure, hence the member states’s competent authorities would be required to process the admission applications within 30 days. Some Member States have called “for greater flexibility” as regards “the proposed duration of stay” as well as “the time limits in which applicants must be given a decision.”

Moreover, the draft proposal provides for several procedural safeguards. Hence, applicants would be able to legally challenge decisions rejecting their application as well as to require the member states authorities to justify their decisions.

The holders of an intra-corporate transferee permit would be entitled to enter and stay in the territory of the Member State issuing the permit. Moreover, they would be entitled to the same conditions of employment applicable to workers posted by an EU company, as well as the same treatment of the national of the issuing member state as regards freedom of association, membership of an organisation representing workers or employers, social security schemes, and without prejudice to existing bilateral agreements, payment of statutory pensions based on the worker's previous employment when moving to a third country. Several Member States have questioned whether third countries nationals should have equivalent rights to the host member states’ nationals, particularly concerning social security benefits. In fact, if the Government decides to opt into this proposal, the UK would be required to provide more social security benefits, including family benefits, to third country nationals than presently. Consequently, such provision would have financial implications for the UK.

Moreover, under the draft proposal, intra-corporate transferees would be able to work in different entities of the same multinational corporation located in different Member States. Consequently, on the basis of the first work permit, an intra-corporate transferee would be allowed to carry out part of the work assignment in an entity of the same group located in another Member State. The late Member State may require a residence permit if the duration of work exceeds 12 months but the intra-corporate transferee may not be required to leave its territory in order to submit applications. Damian Green is particularly concerned with this provision as, presently, under the UK rules, there is no distinction between applicants seeking entry to the UK, on the basis of an intra-corporate transfer, resident in another Member State and those resident in third countries. The minister believes that such provision whilst facilitated entry for intra-corporate transferees already admitted to another Member State might restrict the Government's freedom to decide who to admit to the UK.

The Council also discussed the European Commission’s proposal for a Directive on the conditions of entry and residence of third-country nationals for the purposes of seasonal employment. Aiming at avoiding exploitative working conditions for seasonal workers, the Commission proposes a fast-track procedure for the entry and residence of third-country nationals applying to reside in the EU for seasonal working (agriculture, horticulture and tourism), whilst defining their rights.

Some Member States believe that such proposal is not in line with the principle of subsidiarity. In fact, the European Scrutiny Committee also considers that the proposal does not comply with the principle of subsidiarity. According to the ESC “While the introduction of a single procedure may provide welcome flexibility for employers in some Member States, as well as greater certainty and security for third country applicants, it is not apparent that the objectives of the draft Directive are of sufficient magnitude to justify EU action.”

The Commission proposal establishes, therefore, common criteria for the admission of third-countries’ seasonal workers in the EU Member States.

Presently, the UK does not operate migration schemes for seasonal workers from third countries. Tier 3 of the UK's Points Based System provides for the implementation of a scheme for the temporary admission of low-skilled third country economic migrants, but it is suspended whilst labour market needs are met by workers from EU member states.

The applications for admission to a Member State must be accompanied by a work contract or a binding job offer specifying the rate of pay and the working hours per week or month, in order to avoid exploitative working conditions for the seasonal worker. Possible employers would be required to present evidence that the respective seasonal worker will benefit from appropriate accommodation. The proposal foresees that seasonal workers shall have sufficient resources during their stay to maintain themselves without having recourse to the social assistance system of the Member State concerned.

The proposal lays down mandatory and possible grounds for refusal of an application for admission to a Member State, such as non-fulfilment of the admission criteria, falsified documents, or if the employer has been sanctioned for illegal employment. The draft directive would not create a right to admission. It is member states competence, and that shall not be changed, to decide the number of third-country workers to be admitted in their territory. Taking into account the so called principle of Union preference, EU Member States may apply a labour market test, in order to ascertain whether the vacancy concerned could not be filled by nationals or EU workers, or by third-country nationals already lawfully residing in the Member State. Hence, a Member State may reject an application on the grounds of quotas of third-country national’s admission.

According to Damian Green although the draft proposal might not affect the Government's plans to introduce an annual limit on economic migration from third countries it would have, nevertheless, an impact on UK Immigration Rules under Tier 2 and Tier 3 of the Points Based System. For instances, the draft directive definition of a seasonal worker covers a wider category of temporary workers than is currently foreseen under UK rules. Moreover, once the proposal does not exclude highly-skilled workers from its scope, entails, therefore, admission to the UK without going through the qualifying criteria under Tier 2 of the Points Based System which provides for further requirements.

Under the draft proposal if there is a positive decision by the member state concerned then the third-country nationals must receive a seasonal worker permit. No additional permit is necessary for the residence and the exercise of the specific seasonal work authorised. They would be allowed to reside and work for a maximum period of six months in any calendar year, after which they shall return to a third country. The draft proposal foresees that seasonal workers would be allowed to extend their contract or to be employed by different employer, within the maximum duration of stay.

The draft proposal provides, therefore, for a multi-season permit for three years or facilitates re-entry procedure for a subsequent season. The European Commission has also proposed a fast-track procedure as applications shall be processed and the decision communicated within 30 days. Such provisions might limit the UK’s flexibility to revise quotas for economic migrants. In fact, several Member States have called “for greater flexibility” as regards “the proposed duration of stay” as well as “the time limits in which applicants must be given a decision.”

If a seasonal worker has failed to comply with the obligations arising from the admission decision shall be excluded from admission as seasonal worker in subsequent years. In the other hand, a employer who has not complied with the contract obligations shall be subject to effective, proportionate and dissuasive sanctions and would be excluded from applications for seasonal workers for in subsequent years.

Moreover, the possibility of a legal challenge against a decision rejecting an application is foreseen in the draft directive. Once the seasonal worker permit/visa is issued, the holder would be entitled to enter and reside on the territory of the Member State which has issued it and to exercise the employment activity authorised by it.

The draft proposal provisions define the working conditions such as pay, dismissal and health and safety requirements at the workplace. Moreover, seasonal workers would be entitled to equal treatment with nationals of the Member States in determined fields. Hence, they would be entitled to freedom of association, social security schemes as well as payment of statutory pensions. Several Member States have questioned whether the rights granted to third-country nationals should be equivalent to the host member states’ nationals, particularly concerning social security benefits. Under such provisions, the UK would be required to provide more social security benefits, including family benefits, to third country nationals than presently. Consequently, such provision would have financial implications for the UK.

Aiming at making enforcement more effective, a complaints mechanism would be put in place, not only for seasonal workers, but also third parties who have a legitimate interest in ensuring that the present directive is comply with. Hence, trade unions or other associations would be able to lodge complaints to ensure effective application of the Directive.