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Directorate-General Internal Policies

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Directorate-General Internal Policies

    Directorate-General Internal Policies

    Policy Department C

    Citizens Rights and Constitutional Affairs

    LEGAL MIGRATION LAW AND POLICY TRENDS

    IN A SELECTION OF EU MEMBER STATES

    BRIEFING PAPER

This briefing paper offers an overview of the current trends in „legal migration‟ law and

    policy in a selection of EU member states. The main tendencies are ascertained through a comparative analysis of their strategies and priorities in the specific areas of labour migration, family reunification and immigration for the purpose of studies. In particular, this paper looks at the legal and political experiences of and responses pursued by Austria, Belgium, France, Germany, Poland, Spain and The Netherlands. The following issues will be addressed: what are the latest developments in the legal and policy framework covering the admission of third country nationals for the purposes of employment, family reunification and studies? What is the underlying approach taken by EU countries? What are the conditions being applied in each of the cases? Are there any migration policy and legal trends that are common to all the member states of the EU?

IP/C/LIBE/FWC/2005-22/SC2

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    This note was requested by: The European Parliament's committee on Civil Liberties, Justice and Home Affairs.

This paper is published in the following languages: EN, FR.

    Author: Sergio Carrera, Research Fellow at the Centre for European Policy Studies (CEPS) and external expert on „immigration and integration‟ for the European Economic and Social Committee.

Manuscript completed in 26-07-2006

Copies can be obtained through: Tel: 32105

     Fax: 2832365

     E-mail: japap@europarl.europa.eu

    http://www.ipolnet.ep.parl.union.eu/ipolnet/cms Informations on DG Ipol publications:

Brussels, European Parliament

    The opinions expressed in this document are the sole responsibility of the author and do not necessarily represent the official position of the European Parliament.

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    LEGAL MIGRATION LAW AND POLICY TRENDS

    IN A SELECTION OF EU MEMBER STATES

    1Sergio Carrera

INTRODUCTION

    This briefing paper offers an overview of the current trends in „legal migration‟ law and

    policy in a selection of EU member states. The main tendencies are ascertained through a comparative analysis of their strategies and priorities in the specific areas of labour migration, family reunification and immigration for the purpose of studies. In particular, this paper looks at the legal and political experiences of and responses pursued by Austria, Belgium, France, Germany, Poland, Spain and The Netherlands. The following issues will be addressed: what are the latest developments in the legal and policy framework covering the admission of third country nationals for the purposes of employment, family reunification and studies? What is the underlying approach taken by EU countries? What are the conditions being applied in each of the cases? Are there any migration policy and legal trends that are common to all the member states of the EU?

1. THE NATIONAL LEGAL IMMIGRATION EXPERIENCES AND REGIMES

    The experiences of and responses pursued by EU states are very diverse due to their 2respective regulatory and institutional settings covering the area of legal immigration. The

    priorities, challenges and policy responses differ greatly from one state to another according to their divergent national histories of settlement and colonialism, perceived societal problems and labour market needs, as well as the economic and political situation in a given time period. But, are there any common trends in the national arena in the field of legal migration? While the national level continues to retain the main sovereign powers over policies on legal migration, the influence of the EU is progressively growing. The set of rules in this area is growing rapidly due to the increasing number of laws being enacted in the EU under „the

    Community method. Member states have therefore adopted new legislative frameworks to transpose these rules into national law. While the EU‟s role in this field is imperative,

    necessary and positive, the few EC Directives on the issue have at times left too much discretion in hands of the member states to justify a process of tightening legal immigration laws which position the immigrant in a vulnerable position vis-à-vis the state, the citizen and 3the employer.

    A trend that can be identified when looking at the situation in the national arena is that immigration laws are becoming more defensive and „protective‟, having as their objective

    to manage and filter the movement of those not holding their nationality. The state continues to find imaginative regulatory ways to limit mobility into and inside its territory, restrict access to its labour market, welfare system and educational system and make family reunification difficult. As we will show in this paper, there is a restrictive, utilitarian and

    economically-oriented trend in the field of legal immigration consisting of two state practices:

     1 Sergio Carrera is a Research Fellow at the Centre for European Policy Studies (CEPS) and external expert on „immigration and integration‟ for the European Economic and Social Committee. He would like to express his

    gratitude to the EU officials who were interviewed for the purposes of this paper. The author would like to thank Prof. Elspeth Guild for her reviewing the paper and for her comments. 2 The concept of legal migration includes the rules dealing with the terms of admission, stay and residence, family reunification, as well as the inclusion of immigrants in different societal dimensions (access to employment, education, housing, social benefits, etc.). 3 Council Directives 2003/109 and 2003/86. T. Balzacq and S. Carrera (2006).

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; tightening the rules of admission for employment purposes and applying a selective and

    discriminatory approach that gives priority and more attractive conditions to high-skilled

    immigrants; toughening up the rules on family reunification and not facilitating the

    movement of students; and

    ; Questionable use of „integration as a legal condition for having access to the rights 4provided in the rules of legal migration.

2. THE LEGAL AND POLICY FRAMEWORK ON LEGAL IMMIGRATION:

    TRENDS AND DEVELOPMENTS

    In this section we present the latest developments in the field of legal migration (labour migration, family reunification and immigration for the purpose of studies). We provide a brief overview of the policy strategies and legal responses being pursued by Austria, Belgium, France, Germany, Poland, Spain and The Netherlands.

    It is our view that a restrictive, utilitarian and economically-oriented approach is the guiding

    rationale. In Austria, the philosophy behind the new Aliens Act Package seems rather 5restrictive in nature. The tendency appears to be for Austria to implement the EC Directives in the most limited manner, for it to allow a restrictive interpretation and practice of 6traditionally strict immigration rules. The double quota system that is applicable for

    admission and access to employment mainly focuses on the selection of key professionals and self-employed personnel. A similar approach is taken in Germany, where the new 7Immigration Act (Zuwanderungsgesetz) has kept the ban on recruiting labour migration (or 8„recruitment stop‟), and a clear priority is given to high-skilled migrants. The Aliens Act of

    2000 in The Netherlands offers to high-skilled migrants or knowledge migrants

    (kennismigranten) a more open, faster and simpler administrative procedure than those applicable to the rest of migrant workers. Moreover, the entry into force of the new Act on Integration Abroad (Wet inburgering buitenland) on 15 March 2006 has involved the practice

    of an immigration policy that misuses the tool of integration as a juridical condition for 9admission, family reunification and social inclusion. In France, the new Projet de Loi relatif 10à l‟immigration et a l‟intégration of 30 June 2006 advocates a selective immigration

    policy based on the creation of a new residence permit for skilled and competent

    immigrants and the mandatory nature of the integration contract (contract d‟accueil et

    d‟integration, CAI) for them to have access to the rights presented in the rules on legal 11migration.

     4 For detailed information about this issue see S. Carrera (2006a), (2006b) and (2006c). 5 This package entered into force on 1 January 2006 and is made up of the Settlement and Residence Act (Niederlassungs-und Aufenthaltsgesetz), Federal Law Gazette No. 100/2005 in the version Federal Law Gazette No. 31/2006, the Aliens Police Act, and the Alien‟s Employment Act (Ausländerbeschäftigungs-gesetz) of 1975.

    The Settlement and Residence Act (NAG) contains the main rules on immigration in Austria. The package primarily intended to transpose the new package of EU measures on legal migration. 6 K. König and B. Perchinig, (2005). 7 The Immigration Act is made up of the Residence Act, the Act on the General Freedom of Movement for EU citizens and amendments to additional legislation. Moreover a series of ordinances have been passed which complement and develop this legislative package: The Employment Ordinance Foreign Countries

    (Beschäftigungsverordnung, 2004). This legislation was approved by the Bundestag on 1 July 2004, and was officially adopted by the Bundesrat on 9 July 2004. The Residence Act (Aufenthaltsgesetz) regulates the entry and

    stay of immigrants in Germany. It entered into force on 1 January 2005. 8 N. Cyrus and D. Vogel (2005). 9 Justitie, Immigratie- en Naturalisatiedienst, The Civic Integration Examination Abroad, March 2006. 10 This law presents a series of restrictive amendments to the Code de l‟entrée et du sejour des étrangers et du

    droit d‟asile and transposes the new EC Directives on legal migration into the French legal system. See Collectif Uni(e)s contre une immigration jetable (2006). 11 See Art. 7 of the new law modifying Art. L 314-2 of the Code.

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The latest wave of EU enlargement has also played a key role in the development of new 12rules on legal immigration in Poland. Accession acted as the main incentive for legislative

    reform in the field of immigration in this country. Three bills were adopted to ensure 13compliance of the former Aliens Law with the JHA acquis. As Loys and Weinar argue, the

    Polish laws are restrictive and intend to secure the national labour market from third country 14 Contrary to this trend, the current government in Spain adopted Royal Decree nationals.

    2393/2004, approving the Regulation of Organic Law 4/2000, on the rights and freedoms of 15foreigners in Spain and their social integration. In contrast with the policies pursued by the

    previous Spanish government, which focused mainly on border control and restricting immigration (security), the positive consequences of immigration are now openly acknowledged. A series of initiatives have been passed to foster social dialogue and centre the 16debate on labour migration and the social inclusion of immigrants.

2.1. LABOUR MIGRATION

    While national practices diverge widely with regard to laws on labour immigration, there are some common features. They may be summarised as follows: 1) a selective and

    discriminatory approach; and 2) the principle of national preference (labour market test) and the key role of the employer.

    First, a selective and discriminatory approach predominates in the majority of EU member

    states. This approach gives overwhelming priority to a selected immigration of those considered as beneficial to the national economy because of their skills or economic status. A substantial number of member states practise a policy of selective high-skilled immigration

    consisting of reducing and facilitating the administrative procedures applicable to the admission for employment purposes of those who are labelled as high-skilled, talented or 17well-educated. This profit-oriented rationale institutionalises the state distinction between those non-nationals who are „useful and profitable and are therefore welcome, and all „the

    Others‟, who are perceived as a threat, a burden and an enemy for stability and social cohesion and who need to be prevented from entering the country in order to protect the domestic labour market. In practice it is virtually impossible to determine which migrants will fall on which side of the line.

    Most of the countries studied have a specific scheme for highly skilled immigrants. The

    Netherlands practises a selective and demand-driven immigration policy that is rooted in 18economic considerations. An accelerated procedure for high-skilled migrants has been in

    force since 1 October 2004. High-skilled immigrants will not need to experience the long and 19tedious bureaucratic procedures of applying for a work permit. In Germany, the

    Employment Ordinance Foreign Countries provides that highly skilled migrants are directly

     12 K. Iglicka, P. Kazmierkiewicz and A. Weinar (2005). 13 The main legal instrument on issues of control and regulation of immigration flows in the country is the Aliens Act of 13 June 2003 (Dz.U. 2003, No. 128 item 1175) Ministry of Internal Affairs and Administration Regulation. Rozporzadzenie Ministra Spraw Wewnetrznych I Administracji, Dz.U. 2003, No. 147 item 1435 amended Administrative Code (Dz.U. 2000, No. 98 item. 1071). Issues related to immigration in Poland were first regulated in the first version of this Act, which dates back to 1997. 14 P. Korys and A. Weinar (2005). 15 This law provided an exceptional measure consisting of a process of normalisation or regularisation. J. Apap and S. Carrera (2005). J. Arango and R. Sandell (2004). 16 Draft Strategic Citizenship and Integration Plan (Plan Estrategico de Ciudadanía e Integración), Secretaría de

    Estado de Inmigración y Emigración, DG de Integración de Inmigrantes, June 2006. 17 There is a wide diversity as regards the definition given to high-skilled immigrants in each national legal system. 18 Section 13 of the Aliens Act provides that “an application for the issue of residence permit shall be granted only if: (b) the presence of the alien would serve a real interest of the Netherlands”. V. Marinelli (2005). 19 An immigrant is high-skilled if s/he is in possession of a contract and proves that s/he will be earning at least 45,495 or 33,363 euros if his/her age is less than 30 years old. Other countries who define who is a highly skilled immigrant based on salary are: Austria, Belgium and Germany.

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    20eligible for a permanent settlement permit upon entering the German territory. The Federal

    Employment Agency does not need to give its consent to these categories of immigrants to ensure a quick response to the application by the Foreigners Office. The new Art. 9 of the Arrêté Royal modifiant l‟Arrêté Royal du 9 juin 1999 relatif à l‟occupation des travailleurs

    étrangers in Belgium gives a clear preferential treatment to the category of persons falling within the privileged status of highly skilled workers allowing them to renew their work 21permit for a new period of four years. The Settlement and Residence Act of Austria

    provides in Art. 41 a special “settlement permit key worker” which will be granted in an 22accelerated procedure in the case of qualified personnel.

    In France, immigration is regulated according to the perceived economic needs of the country. The main principle seems to be that nobody should become a public burden, and hence that the applicant must have sufficient income and sickness/health insurance coverage. The Projet de Loi relatif à l‟immigration et a l‟intégration presents a new residence permit

    called “the residence permit mentioning competences and skills” (La carte de séjour portant 23la mention compétences et talents). This permit shall be granted to those immigrants who,

    because of their special competences or skills, may contribute significantly and durably to the economic situation or the intellectual, scientific, cultural, humanitarian or sportive 24 development of France and of the country of his/her nationality.

    Other countries do not have a specific system for high-skilled immigration. In the case of Poland, while the policy priorities of the Polish Immigration Law seem to give preference to 25highly skilled and qualified migrants, there are no specific rules addressing or facilitating 26that goal. Spain does not have a general system for the „highly-skilled‟ either. The annual

    quota (contingente) system is one of the main mechanisms for legal labour migration. The government annually approves a quota that provides a technical estimation of the number of 27workers who are deemed as necessary by employers and the Autonomous Communities.

     20 Section 19 provides that highly qualified persons are: scientists with special technical knowledge, teaching personnel in prominent positions or scientific personnel in prominent positions, or specialists and executive personnel with special professional experience who receive a salary corresponding to at least twice the earnings ceiling of the statutory health insurance scheme. Also, Section 18 says that labour migration may take place taking into account “the requirements of the German economy,

    according due consideration to the situation on the labour market”. “In justified individual cases, a residence permit will be issued for the purpose of taking up employment when there is a public interest, and in particular a regional interest or an interest relating to the economy or the labour market”. 21 Art. 9.6. Arrêté Royal modifiant l‟arrêté royal du 9 juin 1999 relative à l‟occupation des travailleurs étrangers, 6 Février 2003. (AR 2003-02-06/41). S. Gsir et al. (2005). 22 Special legal rules also exist for the health sector. Qualified personnel are defined according to income threshold. Workers will be qualified as such if they earn more that 60% of the income threshold for social security contributions (Höchstebeitragsgrundlage). Policy Report, National Contact Point

    Austria (2005). 23 See R. Blio, C. Wihtol de Wenden and N. Meknache (2003). Article L341-2 Code du Travail (Loi nº 2005-32 du 18 janvier 2005 art. 147 Journal Officiel du 19 janvier 2005 en vigueur le 1er janvier 2006). 24 This type of residence permit is valid for three years and may be renewed once if the holder is a national of one of the countries having special historical tights (zone de solidarité prioritaire) with France. The permit allows the

    bearer to carry out a professional activity of his/her choice as part of the law. 25 Art. 53.1.2. The Aliens Law which states that a residence permit will be granted to an immigrant who “carries out an economic activity which is beneficial to the national economy and in particular, contributes to the development of investments, transfer of technology, innovations or job creation”. 26 In 2004 a few amendments were introduced in the new laws regulating the access to labour market by immigrants, yet there is no system for highly qualified immigrants. Regulation of 9 February 2004 of the Minister of Labour, Economy and Social Policy to amend the Regulation concerning detailed principles on issuance of promises of work permits and work permits to foreign workers, of 19 December 2001, Text No. 236. Dziennik

    Ustaw, 25 February 2003, No. 27, pp. 1494-1503. 27 Quotas are established according to the labour sector, territory and kind of employment. The competent authority drawing up the contingente is the Secretaría de Estado de Inmigración y Emigración, after consulting the

    Tripartite Employment Commission on Immigration, which is a permanent platform for cooperation between the state and the social partners (employers and trade unions). A. Balch (2005).

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    28The administrative mechanisms for their incorporation into the labour market are simplified. 29It also encourages hiring immigrant workers in the countries of origin.

    A second trend that we identified is the application of the principle of national preference by

    which, before those immigrants who are not highly skilled are allowed to take up a job, a labour market test is carried out by the competent authorities to check whether the post 30 The role of the employer is cannot be filled by a national or any other privileged immigrant.

    a very important common ingredient in the initiation, continuity and ending of the processes of immigration for labour purposes. In Germany, there will be first an individual labour

    market test proving that the employment of an immigrant does not have a negative impact on 31the national labour market and that no other privileged worker is available. In Austria, in

    reaching the ceilings established in the quota immigration system preferential treatment will be given to Austrian nationals or other privileged immigrants. In The Netherlands, the

    employer plays a key role in the process of immigration for labour purposes. Legal migration for reasons of employment will only take place if the migrant finds an employer who will initiate the procedure by signing a declaration, and the existence of an insufficient labour 32 In France, the new supply between EU/EEA to meet this labour shortage has been proven.

    law allows legal residence to be given if the applicant has a job contract, something which 33makes the position of the immigrant more vulnerable towards the employer.

2.2. FAMILY REUNIFICATION: TOWARDS A RECOGNISED RIGHT?

    Immigration rules are subject to a number of rigid conditions that will need to be met in order 34for the immigrant to have the right to be reunited with her/his family. This tendency seems

    to be shared by a majority of states which have enacted new legislation on immigration justified by their obligation to transpose Council Directive 2003/86/EC on the right to family 35reunification. As to the personal scope, the shared norm seems to be that the sponsor‟s

    spouse, minor children of the couple, including adopted ones, minor children under the 36custody of either or both are eligible for family reunification. Among the criteria that are

    being applied for the family reunion to take place we may underline the need by the sponsor to prove that s/he has sufficient financial resources and the existence of adequate housing according to the standards in the receiving state, in addition to some other norms which are characteristic of the national legal system.

     28 It offers the possibility for them to obtain visa and residence and work permit at the same time in the embassy. 29 See Art. 77-83 of the Royal Decree 2393/2004. 30 E. Guild (2004). Austria applies a labour market test for highly skilled immigrants falling within special schemes. 31 Those categories of employment where the Federal Employment Agency (Bundesagentur für Arbeit) is required

    to give its favourable consent (labour market test) are provided in Sections 17-31 of the Employment Ordinance

    Foreign Countries.. 32 Bringing a foreign employee to the Netherlands, Justitie, Immigratie- en Naturalisatiedienst, January 2006. See

    Apap (2002) and Apap (2004). 33 Cimade (2006). 34 See Art. 8 of the European Convention of Human Rights and Fundamental Freedoms. 35 Council Directive 2003/86/EC of 22 September 2003 on the right to family reunification, OJ L 251/12, 3.10.2003. 36 Art. 10 and 40 of the Loi du sur l'accès au territoire, le séjour, l'établissement et l'éloignement des étrangers, 15 December 1980 in Belgium; Art. 53.2. of the Aliens Act of 13 June 2003 (Dz.U. 2003 No. 128 item 1175) Ministry of Internal Affairs and Administration Regulation in Poland, Rozporzadzenie Ministra Spraw Wewnetrznych I Administracji, Dz.U. 2003, No. 147 item 1435 amended Administrative Code (Dz.U. 2000, No. 98 item. 1071); Art. 46 and 47 of the Austrian Federal Act concerning settlement and residence in Austria (the Settlement and Residence Act SRA), Federal Law

    Gazette No. 100/2005 in the version Federal Law Gazette No. 31/2006; Art. 39 and 42 of the Royal Decree 2393/2004, approving the Regulation of the Organic Law 4/2000, on the rights and liberties of foreigners in Spain and their social integration, 30 December 2004, Spain.

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    In France, family reunion may be refused if the sponsor does not prove that they are in possession of sufficient and stable resources and have adequate housing (Art. L 411-5 of the Code). The new Projet de Loi introduces significant restrictions in this field. It is now

    provided in Art. 44 that immigrants who reside legally in France may after 18 months apply for the right to family reunification of his/her spouse and their children if they are under the 37 The new law also imposes the conditionality of integration into the community on age of 18.38the family members in order for them to be allowed to reunite and obtain a residence permit.

    The Netherlands shares the same position towards the use of integration as a condition for family reunification to be allowed. In the same line, Art. 14 of the Settlement and Residence

    Act in Austria also provides a mandatory integration agreement (Integrationsvereinbarung), 39and Art. 46 submits family reunification to a sub-quota of the immigration quota. In

    Germany the Residence Act (Aufenthaltsgesetz) regulates the entry and stay of immigrants in

    Germany. Section 32.2 imposes the conditionality of integration when the minor arrives in 40Germany after her/his parents. In Spain the role of the Supreme Court (Tribunal Supremo) 41has been very important in interpreting immigration law proactively and openly. It is

    therefore not so important to look at the precise wording of the articles provided by the law and that their conditions are met, but to show evidence of the existence of a material and 42 In Belgium the rules on family personal emotional connection between the family members.

    reunification have been modified recently and this legislation is expected to enter into force 43soon.

2.3. IMMIGRATION FOR STUDY PURPOSES: FACILITATING MOBILITY?

    The common trend here seems to be the existence of highly bureaucratic legal procedures which impede the movement of students. The real impact of national transposition and practical implementation of Council Directive 2004/114/EC on the conditions of admission of 44third-country nationals for the purposes of studies remains to be seen. At present, the

    conditions shared by most member states for them to be granted a residence permit as students usually are: presenting a certificate of admission to studies, proof that the person has sufficient financial means for subsistence, a medical certificate and a certificate declaring that 45s/he does not have any criminal record. Similar criteria are required to be met in Belgium, in 464748France, in Poland, Spain, etc.

     37 In the previous version of this article the period of legal residence necessary for applying was one year and the age was unspecified as it said only minor children. 38 See art. 45. 39 The Aliens Reform of 2005 has established that the application of the sub-quota system will not be applicable when the application has been under consideration for a period of three years. 40 The German government succeeded in pushing through the introduction of the last paragraph of Article 4 of the EC Directive on the right to family reunification 2003/86. See H. Schneider and A. Wiesbrock (2005). This provision says that “A minor, unmarried child who is 16 years of age or older shall be granted a residence permit if he or she has a command of the German language or if it appears on the basis of the child's education and way of life to date that he or she will be able to integrate into the way of life which prevails in the Federal Republic of Germany and both parents or the parent possessing the sole right of care and custody hold a residence permit or settlement permit”. 41 Art. 39 and 42, Royal Decree 2393/2004, approving the Regulation of the Organic Law 4/2000, on the rights and liberties of foreigners in Spain and their social integration, 30 December 2004. Ortega (2005). 42 P. Santolaya (2005). 43 Projet de Loi modifiant la loi du 15 décembre 1980, sur l‟accès au térritoire, le séjour, l‟établissement et

    l‟éloignement des étrangers, 4 juillet 2006, DOC 51 2478/008, Chambre des Représentants de Belgique. 44 Council Directive 2004/114/EC of 13 December 2004 on the conditions of admission of third-country nationals for the purposes of studies, pupil exchange, unremunerated training or voluntary service, OJ L 375, 23.12.2004. 45 Art. 59 Loi sur l'accès au territoire, le séjour, l'établissement et l'éloignement des étrangers. Art. 58 however

    says that in those cases where no proof has been presented concerning the medical certificate and the certificate proving that applicants do not have a criminal record the Ministry can nevertheless, according to the particular circumstances, grant the residence permit to the student. 46 Art. 9 of the Projet de Loi relatif à l‟immigration et a l‟intégration.

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Some of the EU states allow immigrant-students access to employment during their studies

    and at times even after their completion. In Belgium the law offers the possibility for students 49to work where it does not exceed 20 hours per week and is compatible with their studies. In

    France, those holding a temporary „student‟ residence permit may apply for authorisation to 50have access to employment. If the authorisation is granted they will have this right but subject to it being a part-time job. In Spain, Art. 90 of Royal Decree 2393/2004 establishes

    that immigrants will be authorised to take up employment activities when these are compatible with the studies and the income received does not represent their main resource of subsistence in the country. The employment contract must also be part time, and in those cases where the contract is full time the total duration of the employment contract must not exceed three months and must not coincide with the given institution‟s educational periods.

    According to the Immigration Law in Germany, foreign students may remain in the country

    for one year following completion of their studies in order to find a job commensurate with 51their academic degree. In Poland the initiative to offer a pro-student immigration policy was 52finally rejected in the debates about the Aliens Act of 13 June 2003.

    The utilitarian approach highlighted in the beginning of the paper can be also seen in

    Scotland, where the Fresh Talent Initiative: Working in Scotland Scheme has been

    implemented since summer 2005. This initiative offers a visa extension scheme designed to help overseas talented graduates from Scottish educational institutions to stay and work in 53Scotland. A similar situation applies in Austria, where according to Art. 41.5 of the

    Settlement and Residence Act (NAG), holders of a valid residence permit for students, may, after completing their studies at a university, be issued a settlement permit key worker.

3. CONCLUSIONS

    The restrictive, utilitarian and economically-oriented trend in the field of legal migration at

    the EU national level is based on a questionable confidence of state authorities in their ability to determine the future needs of the labour market. Moreover, a policy of selecting high-skilled and educated immigrants may be described as discriminatory in its nature and effects.

    Facilitating the admission and residence of only those falling within the domestic definition of highly skilled or talented immigrant creates direct discrimination against those not falling

    within that privileged status as defined by national law.

    An open approach that respects human rights should guide the discussions and responses at 54national and EU level in the area of legal migration. This approach would be based on the

     47 Art. 53.6. Aliens Act of 13 June 2003 provides that “An alien is obliged to confirm his/her will to take up or continue studies on the territory of the Republic of Poland by providing a certificate of admission to studies, issued by the institution appropriate for his/her studies.” 48 Art. 86 of the Royal Decree 2393/2004. 49 Art. 17 of Loi du 15 décembre 1980 sur l'accès au territoire, le séjour, l'établissement et l'éloignement des étrangers. 50 Art. 9 of the new law and Art. L313-7 of Code de l‟entrée et du séjour des étrangers et du droit d‟asile. 51 Section 16.4 $ “After successful completion of the studies, the residence permit may be extended by up to one year for the purposes of seeking a job commensurate with this qualification, provided that it is permissible to fill the vacancy concerned with foreigners”. 52 See Art. 53 of the Aliens Law. 53 To qualify for an extension of stay under this initiative the candidate must meet the following requirements: having been awarded a Higher National Diploma or a UK-recognised undergraduate degree, Master‟s degree or PhD at a Scottish publicly-funded institution of further or higher education

    or bona fide private education institution; have completed the course concerned in the last 12 months; have lived in Scotland for an appropriate period while studying for the HND, undergraduate degree, Master‟s degree or PhD; and having had the intention to seek and take work in Scotland during any

    leave granted under the scheme. For more info, see www.scotlandistheplace.com. 54 See S. Carrrera and M. Formisano (2005).

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    direct dismissal of the idea that the immigrant is merely human capital to be deployed according to the economic needs and priorities of the receiving country. It would also imply the abandonment of the existing restrictive rules on admission for family reunification and studies. Immigrants are holders of the set of human rights recognised by common international and European legal instruments, such as the ECHR, the UN International Convention on the Protection of the Rights of All Migrant Workers and Members of their 55Families of 1990, the ILO Conventions, etc. Economic and political considerations must not

    prevail over a comprehensive set of human rights such as non-discrimination, access to justice and the principle of equality, fair treatment and solidarity.

     55 See European Economic and Social Committee, Opinion on the International Convention of Migrants, SOC/173, 30 June 2004, Brussels.

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