Blog post written by Emeritus Professor Kees Groenendijk (Radboud University, Netherlands) and forms part of a series of blog posts examining the implementation of the Global Compact for Safe, Orderly and Regular Migration.
Objective 5 deals with enhancing pathways for regular migration of three categories of migrants: labour migrants, family members, and students and researchers (“academic mobility”). I will formulate indicators for each category.
A first question is whether the terminology in the title of this objective (“enhance availability [….] of pathways for regular migration”) and the terms used in the description of the relevant actions, such as “facilitate”, “expand available options” or “expand availability of pathways for regular migration” restricts the room for states to reduce the existing options or to introduce new restrictions on pathways for regular migration. Should the actions using this terminology considered to be implicit standstill clauses? I am inclined to give a positive answer. Taking into account that the Compact is not a binding instrument of international law, the Compact does not legally forbid the introduction of new restrictions. But their introduction would clearly not be compatible with the political commitment made by the states which supported the adoption of the Compact.
Secondly, the commitments of States under this objective are not limited to statutory immigration rules. The commitments apply to published or unpublished ministerial instructions and administrative practices of immigration authorities as well.
1. Migrants for employment
Objective 5 starts with a general commitment on labour migration:
We commit to adapt options and pathways for regular migration in a manner that facilitates labour mobility and decent work reflecting demographic and labour market realities [….] with a view to expanding and diversifying availability of pathways for safe, orderly and regular migration.
The reference to “demographic and labour market realities” underlines that this commitment is not restricted to highly educated workers.
In EU policy documents on migration management the wish to create and expand pathways for regular migration of workers from outside the EU have been voiced for more than a decade and produced minimal results in real life so far.
Under action (a) it is stated that multilateral and bilateral labour mobility agreements should be “drawing on” ILO standards and be “in compliance with international human rights law and labour law”. Action (b) mentions “visa liberalization or multiple-country visas, and labour mobility cooperation frameworks” as possible instruments for the realisation of this objective. I am unaware of a single bilateral agreement on labour mobility concluded by an EU member state with a non-EU state after 2000 making explicit reference to ILO standards or to international human rights law. This also applies to the non-binding Partnership instruments agreed between the EU and certain African states mentioning the possibility of regular labour mobility to the EU.
(A) Check whether recent bilateral or multilateral instruments on labour mobility contain serious guarantees for compliance with ILO standards, such as the 1949 ILO Migrant Workers Convention no. 97, and with international human rights law and labour law.
(B) Check whether national law on work permits and employment of non-nationals are in compliance with ILO standards, such as the 1949 ILO Migrant Workers Convention no. 97, and with international human rights law and labour law. Did the duration of validity and the renewability of work permits increase of decrease after the adoption of the Compact?
(C) Has the advice to use visa liberalization, multiple-country visas, and labour mobility cooperation frameworks as the instruments been used in practice?
2. Family members
States under action (i) accepted the commitment to
Facilitate access to procedures for family reunification for migrants at all skills levels through appropriate measures that promote the realization of the right to family life and the best interests of the child, including by reviewing and revising applicable requirements, such as on income, language proficiency, length of stay, work authorization, and access to social security and services.
This commitment implies that existing procedural barriers to family reunification should be reduced and no new or higher barriers, such as longer waiting periods, higher fees for residence or work permits or obligations to present additional documents, should introduced. Moreover, future revisions of rules on family reunification should aim at facilitating family reunification by lowering rather than raising the requirements explicitly mentioned in the Compact: “income, language proficiency, length of stay [and] work authorization”.
The action specifies that facilitation should relate to family reunification for migrants at all skill levels. This statement implies that it will be harder for States to justify facilitation of family reunification only for highly skilled migrants. Over the last decade the EU has adopted several directives on admission of highly qualified workers from outside the EU providing privileges for those workers as compared to the general rules in the 2003 directive on family reunification for third-country nationals. Some of these privileges are no waiting period, language or integration tests or measures only after admission, no labour market test for working family members and speedy processing of applications.It will be harder to justify such privileges for highly skilled workers only, if States take this commitment under the Compact seriously.
Do national rules on family reunification adopted after December 2018 introduce new or longer waiting periods, higher fees or requirements for additional documents, set higher income requirements or raise language or integration requirements?
The commitment to facilitate is not limited to statutory rules. It also applies to administrative practices of immigration authorities, such as long delays in handling applications for family reunification. Information on such practices may well be available within immigrant NGOs and within associations of citizens with non-nationals partners.
3. Students and researchers
Under action (j) of Objective 5 states committed themselves to “expand available options for academic mobility” and to “facilitate academic exchanges […] for students and academic professionals”. The introduction of new requirements restricting the access to visa or residence permits for non-national students or academic professionals or reducing their access to scholarships would be clearly incompatible with the objective.
The EU in 2016 adopted Directive 2016/801 on entry and residence of third-country nationals for the purposes of research or studies,replacing the 2004 directive on students and the 2005 directive on researchers.The 2016 directive clearly expanded the available options for admitted students from third countries to have a job next to their studies, to look for employment in the EU country after graduation and to live and study in another EU Member State during their studies. The directive also expanded the possibilities for researchers from third countries to bring their families, to perform research in other Member States and to live with admitted family members in that state. On the other hand, the directive introduced new requirements for admission and additional grounds for withdrawal or non-extension of residence permits. Since the directive was adopted and had to be implemented by Member States in their national law before the GCM was adopted in December 2018, the directive is compatible with this objective.
Have new restrictions in the statutory rules or administrative practices on admission of non-national students or researchers, their residence rights or their right to study, perform research or receive scholarships been introduced after the adoption of the Compact?
Amendments of statutory rules are relatively easy to monitor. Changes in administrative practices, usually, are less visible. Reliable information on such changes could be obtained from international relations departments of universities which often have day-to-day contacts with immigration authorities on the issue and extension of residence permits and up-to-date knowledge of practices with the availability of scholarships and employment rights of students or researchers.
See the Blue Card Directive 2009/50, Directive 2014/36 on intra-corporate transferees and Directive 2016/801 on researchers.
OJ 2016 L 132, p. 21–57.
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