Ad-Hoc Query regarding transposition of the Directive 2011/98/EC on a single application procedure for a single permit

Transcription

1 Ad-Hoc Query regarding transposition of the Directive 2011/98/EC on a single application procedure for a single permit Requested by SI EMN NCP on 7 th June 2013 Compilation produced on 22 th July 2013 Responses from Austria, Belgium, Bulgaria, Finland, France, Germany, Greece, Hungary, Italy, Latvia, Lithuania, Luxembourg, Netherlands, Poland, Portugal, Slovenia, Slovak Republic, Sweden, United Kingdom and Norway (20 in Total) Disclaimer: The following responses have been provided primarily for the purpose of information exchange among EMN NCPs in the framework of the EMN. The contributing EMN NCPs have provided, to the best of their knowledge, information that is up-to-date, objective and reliable. Note, however, that the information provided does 1. Background Information In view of the ongoing works on the transposition of the Directive 2011/98/EC on a single application procedure for a single permit for third-country nationals to reside and work in the territory of a Member State into the Slovenian legal system, we are currently considering several options regarding the way on transposing provisions into the national legislation and how to deal with "one-stop-shop" mechanism. This is particular important when we are dealing with organizational structure of governmental institutions in which issue of work and stay permit for foreigners are currently under responsibility of different authorities - namely in Slovenia responsibility are separated upon the Ministry of the Interior and the Ministry of Labour. Therefore, we would like to kindly ask you to provide us with the following information on; The way (concept) of transposition of the Directive 2011/98/EC into the national legislation. Brief and general information will be the most welcome; 1 of 7

2 Do you consider to authorize only one institution and which one (Ministry, Agency, etc) to be responsible for issuing a single permit to the foreigners or for this purpose you are planning to make some changes in the organizational structure (such as merge of different offices into one, etc)? Do you consider to keep "status quo" which mean responsibility of issuing of work and stay permit for foreigners will stay under current organizational structure which mean separated by the responsible ministries (work and foreigners) and the single permit will be issuing by one/single authority (Ministry, Agency, Administrative unit, etc) in order to assure performance of the "one-stop-shop" mechanism accordance with the Directive 2011/98/EC. We would very much appreciate your brief and short responses as soon as possible or by 30 June Responses Wider Dissemination? Austria No This EMN NCP has provided a response to the requesting EMN NCP. However, they have requested that it is not disseminated further Belgium Yes In Belgium, as in Slovenia, the issuance to foreigners of work permits on the one hand and residence permits on the other hands are currently under the responsibility of different authorities. To date, policymakers have not decided yet which department would be handling the single applications. The process for handling single applications will be elaborated further only once the question of which department is competent is decided upon and clear-cut. At this time there is no intention to change the organizational structure referred to above. Bulgaria Yes In the Republic of Bulgaria the transposition of the Directive 2011/98/EC is undergoing. It is going to follow the way of transposition of Directive 2009/50/EC. The Bulgarian practice is to issue 2 different documents from the Ministry of Interior (MoI) and the Ministry of Labour and Social Policy (MLSP) Employment Agency. For the issuance of the EU Blue card this process was made internal between the institutions. We plan to follow the same approach. There is a one-stop-shop procedure for the issuance of the EU Blue Card permit that is issued by the MoI after a confirmation from the Employment Agency and this should be the case with the Single Permit too. 2 of 7

3 For the near future the Bulgarian authorities are considering keeping the model of permits issuance in the way it is now the responsible institution for residence permits is the MoI, while the responsible institution for the issuance of work permits is the Employment Agency with the Minister of the Labour and Social Policy. A specific aspect of the procedure for issuance of work permits is that the prospective employer has to apply for the permit in the name of the prospective employee that means that the TCN worker cannot apply for the work permit himself. The Directive obliges us to introduce the Single Permit, however, the existing procedure will be kept for all other cases under national legislation. Finland Yes The way (concept) of transposition of the Directive 2011/98/EC into the national legislation. Brief and general information will be the most welcome; o In Finland a residence permit and the right to gainful employment attached to it are issued as a result of a single process and in a single document. This principle is not challenged by the fact that the decision-making process for issuing a worker's residence permit includes different authorities of which some are under the Ministry of the Interior and some under the Ministry of Employment and the Economy. From the applicant's viewpoint, there is only one application and one process. In this respect the Directive requires no changes to our current system. However, we do need to include the four-month maximum processing time into our Aliens Act. Furthermore, the provisions on equal treatment require some modifications to our social security legislation. Do you consider to authorize only one institution and which one (Ministry, Agency, etc) to be responsible for issuing a single permit to the foreigners or for this purpose you are planning to make some changes in the organizational structure (such as merge of different offices into one, etc)? o As explained in the previous answer, there are different governmental branches involved in the process of issuing a worker's residence permit. As the process is already in line with the requirements of the Directive, there is no need to change the organizational structures. Do you consider to keep "status quo" which mean responsibility of issuing of work and stay permit for foreigners will stay under current organizational structure which mean separated by the responsible ministries (work and foreigners) and the single permit will be issuing by one/single authority (Ministry, Agency, Administrative unit, etc) in order to assure performance of the "onestop-shop" mechanism accordance with the Directive 2011/98/EC. o See previous answers. France Yes Directive 2011/98/EC has been transposed by the law n of June 16 th 2011 on immigration, integration and citizenship, and the decree n of September 6 th 2011 regarding residence permits. The transposition was completed through a modification of the Labor Code stating that the European blue card is a work authorization. The principle of issuing a single residence and working permit was introduced into French law in 1984, and was confirmed by the law of July An application for a European blue card is submitted to the competent foreign services for the work 3 of 7

4 authorization, and to the prefecture for the residence permit. The prefecture issues the single permit afterwards. It authorizes its owner to live and have a highly qualified job, for one to four years, according to the work permit. This system has been maintained since it respects the provisions of the Directive. Germany Yes Directive 2011/98/EU makes provisions for a procedural grouping of the decisions regarding the residence permit and work permit [EU Blue Card] ( one stop shop ) by means of issuing a combined residence document ( single permit ), something which was already implemented in Germany on (section 4 2 of the German Residence Act. There is therefore no further need for implementation of directive 2011/98/EU. In Germany this residence document is issued by the local Alien s Offices. If the residence document is issued in a foreign country by a diplomatic representation as a visa, the Alien s Office competent for the planned place of residence must give its consent. In each case the Alien s Office consults the Federal Employment Agency through an internal administrative procedure for its decision, in so far as this is set out in the German Employment Regulation due to the type of employment which the alien wishes to exercise; if the alien wishes to be self-employed, other competent authorities such as labour inspectorates and other agencies competent for professional licences will be consulted accordingly. The amendment of provides for continued separate competences within administrative agencies in matters of the right of residence and the right of work permits. The consequences of this amendment are that aliens will have just one contact partner ( one stop shop ) which is the local Alien s Office (or the respective diplomatic representation in foreign countries). Greece Yes As for the transposition of the Directive 2011/98/EC, the relative legislation is under elaboration. However, according to Greek national legislation, residence permits for work are issued in the form of a single permit (work and residence permit in one document) already since 2005 (Law 3386/2005). Therefore the permission for a third country national to reside and work in Greece is granted by the same authority that issues the residence permit and in a single document format (uniform format of Regulation 2002/1030/EC). Since this is the procedure already followed in Greece, only small implementation adjustments will be needed in order for the Directive 2011/98/EC to be transposed. According to the above, no changes are needed to the organizational structure of the authorities involved in the procedure of granting the residence permits of third country nationals, as only one authority is responsible to issue the residence permit, incorporating the authorisation to work. These authorities are, in most cases, the Migration Services of the Decentralised Administrations throughout the country, while only in a few cases, such as residence permits for humanitarian or exceptional reasons, are issued by the Ministry of Interior. As mentioned above, according to existing Greek legislation, the residence permits incorporate the permission or not to work in a single document, which is issued by the same authority. Therefore there is no need for legislative modifications in this field. Hungary Yes The implementation of the Single Permit Directive is presently in progress in Hungary. Applications for Single Permit will be submitted from 1 January Hungary only introduced such a single application procedure for third-country nationals covered by the scope of the Blue Card Directive, and therefore needs to extend such a single application procedure also for further 4 of 7

5 categories of third-country nationals who are allowed to work in Hungary. The conception is to make the single application procedure the main rule for the employment of the third-country nationals As for the division of competencies between immigration and employment authorities the status quo will remain even introducing the following procedure as a single application procedure: Third-country nationals applying for an EU Blue Card should submit their application to the competent regional directorate of the Office of Immigration and Nationality (OIN). The OIN contacts the National Employment Service s regional (metropolitan) employment office in order to ask for an opinion on the third-country national s employment as a highly-qualified worker. The regional employment office assesses the legal conditions of employment as well as the national employment situation. The OIN brings a decision based on both its own check on the immigration criteria and the opinion of the Employment Service and in case of a positive decision the OIN issues the EU Blue Card. Italy Yes Italy already envisages a single application procedure for a joint residence/work permit. Every year, by means of a Decree of the President of the Council of Ministers (the so called flow-decree ), the general criteria for defining the entry quotas into the Italian territory are established. Therefore, there is no distinction between permit to stay and permit to work. As regards dependant workers with a part-time, full-time or seasonal contract, and more specifically non-eu workers residing abroad, the procedure establishes that the employer, within the quotas determined by the flow-decree, has the responsibility of going to the Single Desk for Immigration at the Prefecture of the province where the work should be carried on. The same employer, in case he/she knows the employee to hire, needs to apply for a specific authorization to work, providing additional documents which certify the existence of a suitable accommodation for the worker as well as the residence contract proposal. This procedure is the basis for the release of the stay permit. Latvia Yes The Ministry of Interior has drafted amendments to the Immigration Law in order to implement the Directive. In fact, one-stop procedure has been introduced in Latvia since 1 st July The procedure for obtaining the residence and work permit is as follows. As a general rule (there are some exemptions) an employer should register a vacancy in the State Employment Agency (it can be done electronically or by phone) and this vacancy should be opened for inhabitants of Latvia and other EU countries for 30 days. If during this period the employer cannot hire anybody from local labour force, he is entitled to invite a foreigner. For that he should approve an invitation in Office of Citizenship and Migration Affairs (OCMA). OCMA checks if vacancy was registered (there is on-line data base for that), if professional qualification of a foreigner corresponds to that required in the vacancy and approves an invitation. After the approval of the invitation a foreigner can apply for a residence permit in Latvian embassy or consulate abroad. The documents are sent to OCMA, OCMA adopts the decision and sends it to the respective Embassy, the Embassy issues a long-term visa for the foreigner (if necessary), the foreigner arrives in Latvia and in the OCMA receives the residence permit and work permit. At the moment there are two separate documents, but they will be replaced by single permit. Neither the procedure nor organizational system will be changed. Lithuania Yes The Directive 2011/98/EC is not transposed into national legislation. Lithuania considers keeping status quo and is not going to change organizational structure. The single permit shall be issued by one institution but with involvement of an authority responsible for work permits. 5 of 7

6 Luxembourg Yes The transposition of Directive 2011/98/UE is on-going. A bill (n 6507) was presented to Parliament on 30 November This bill was voted by Parliament on 15 May However, it has not been published. The bill modifies the Amended Law of 29 August 2008 on free movement of persons and immigration. Seen that this law already had introduced a unique residence permit for salaried workers the modifications introduced by the bill are minor. One of the main innovations is that it reduces the deadline for procedure to four months. Another change is the fact that the authorisation to work shall appear in the residence permit independent the category of residence permit. In Luxembourg, the Directorate of Immigration from the Ministry of Foreign Affairs is the only public institution that is responsible for granting residence permits of any kind as well as the working authorisation to third-country nationals. As we mentioned in 2 the only institution to issue residence and work permits to the foreigners is the Directorate of Immigration. Netherlands Yes Yes. The Ministry of Security and Justice will be responsible for issuing a single permit. Yes. The Ministry of Security stays responsible for the Aliens Act. The Ministry of Social Affairs and Employment stays responsible for the Labour Act for Aliens. Poland Yes Poland has not yet implemented provisions of the Directive into its legal system. The new draft Act on Foreigners, which takes into consideration the necessity for its implementation, is still pending approval (on 18 th June 2013 draft act was adopted by the government and soon will be submitted before Parliament). Draft Act on Foreigners stipulates that a foreigner, who already resides in the territory of Poland will have a possibility to apply, under one procedure, for single permit, which will entitle him to both work and reside in Poland. Competent for issuing such permit will be a voivode (local representative of the government there are currently 16 voivodes in Poland), whose current responsibilities cover issuance of work and residence permits. The Head of the Office for Foreigners will act as a second instance. According to the draft Act on Foreigners, a foreigner will be entitled to file an application. Under current regulations only employer is entitled to do so, whereas a foreigner does not have such possibility at all. According to the draft Act on Foreigners, an employer will be able to obtain such permit for a foreigner residing abroad and intending to enter Poland on the basis of visa or under visa-free-regime or who resides in Poland on the basis of another residence title and who wants to undertake work. Procedure for issuing separate work permits will however still apply to workers posted by a company with a seat in a non-eu Member State. Authority competent for issuing such permit is and still will be a voivode and in the second instance - Minister in work matters. Portugal Yes In Portugal the institution responsible is the Portuguese Immigration and Borders Service (SEF). Portugal kept the same legal structure that already has before the transposition of the Directive 2011/98/EC into the national legislation 6 of 7

7 Slovak Republic Yes The main goal of the Directive 2011/98/EC on a single application procedure for a single permit for third-country nationals to reside and work in the territory of a Member State is to make the process of issuance of these documents more effective within single administrative procedure. In the SR the legislative process to transpose this Directive is ongoing and is not finished yet. It is expected that the relevant legislation will enter into force on 1 December The issuance of the single permit will be in the competence of the Ministry of Interior of the SR (Bureau of Border and Aliens Police) which will be in this process assisted by the Offices of Labour, Social Affairs and Family (currently the responsibility is divided when the work permit is issued by the Office of Labour and the residence permit by the Bureau of Border and Aliens Police). The current organizational structure remains unchanged (status quo). The single permit will be issued at one place by one institution being the Bureau of Border and Aliens Police. Slovenia Yes Right now we are in the process of examination of different possibilities. Most possible the organizational structure and decision making will stay the same as it is divided into the ministry responsible for immigration and ministry responsible for work. Only one institution will be responsible for issuing single permit. Sweden Yes Sweden has already a system that in most aspects comply with the Directive. For the time being there is an on-going process for a Ministry Publication Series regarding the implementation of the Directive. The Swedish Migration Board is already the one and only authority that issues both residence and work permits. No organizational changes are foreseen. United Kingdom Yes The UK has not opted into Directive 2011/98/EC, but it operates a "one-stop shop" for work applications which are not subject to an annual limit. The Home Office administers the system. Once an employer has been licensed to sponsor migrant workers by the Home Office, it can issue Certificates of Sponsorship to migrants it wishes to employ. The migrant can then use the certificate to make a "one-stop shop" application to the Home Office. Applications which are subject to an annual limit do not have a "onestop shop" process, as a licensed employer must apply to the Home Office to issue each Certificate of Sponsorship. Norway Yes The Norwegian Directorate of Immigration (UDI) is the agency responsible for implementing the rules and regulations concerning residence and work permits. Information about where to apply and how to proceed van be found on: ************************ 7 of 7