New European Directive on the conditions of residence and employment of certain third-country nationals - Supplementary rights for researchers, students, trainees, au pairs and volunteers by 2018

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Date:
10 Jun 2016

A new European Directive requires EU Member States to provide supplementary rights by 23 May 2018 for the benefit of third-country researchers and students. Their mobility between other Member States will among other things be facilitated, while they maintain their right of residence for a period of up to 9 months after the completion of research or studies, in order to seek employment or set up a business.

Furthermore, the Directive will have an impact on the Belgian provisions on the right of residence and employment of trainees and, possibly, of au pairs and volunteers too.

Persons who are not citizens of a Member State of the European Economic Area (EEA) or Switzerland (third country nationals) are not allowed to reside in the EEA or in Switzerland and/or to work there. In principle, the Member States determine themselves their immigration policy. However, for certain categories of specific third-country nationals, e.g. researchers and students, provisions as regards the conditions of residence and employment are harmonised at the European level.

A recently adopted European Directive modifies the existing provisions for third-country researchers and students.  These researchers and students shall have the right – under specific conditions – to stay on the territory of the Member State that issued their residence permit for a period of 9 months after the completion of research or respective studies in order to seek employment or set up a business. Their possibilities to travel across Europe for their research and their studies have also been extended.

Thanks to the Directive, there are now also European provisions concerning the residence and the employment of third-county nationals who wish to complete a traineeship in a Member State. Third-country nationals who still fall under a third-country higher education institution will have the possibility to complete – under specific provisions – a traineeship in Belgium, while for now Belgian law requires that the traineeship follow on from an already obtained diploma. Furthermore, in light of the Directive, the age condition at present required (18-30 years) for the granting of a work permit as a trainee no longer seems tenable.

The Directive also provides for an optional legal framework for au pairs. If Belgium decides to apply this framework, the present provisions will have to be adapted.

Finally, the Directive provides – under specific conditions – a temporary right of residence to third-country volunteers in the Member State where they want to participate in a voluntary service scheme. To date, voluntary service does not constitute a ground for a residence permit in Belgium. These provisions are nevertheless to a great extent optional for the Member States; we will have to wait and see if major changes will follow.

Member States have until 23 May 2018 to transpose the Directive; it is yet not immediately applicable.

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The existing Belgian provisions on the conditions of residence and employment of third-country nationals remain temporarily into force. However, companies hosting third-country trainees can expect the present Belgian provisions to be modified during the next two years. Changes are also possible for volunteers and au pairs.