The revised Blue Card Directive: the EU's search for more highly skilled non-EU migrants

 

Steve Peers, Professor of Law, University of Essex

One sign of the difficulty in resolving differences of opinion within the EU on immigration and asylum issues (other than visas and border controls) is that no new legislation on these issues has been agreed since 2016 (that was the revised Directive on admission of students, researchers and trainees, discussed here). This five-year drought may soon to come to an end, with the recent agreement on revision of the Blue Card Directive on highly-qualified non-EU workers. (Note that the recent deal must still be formally approved by the Council and the European Parliament. This blog post is based on the full legal text of the agreed revised Directive. UPDATES, May 21 2021: the full text of the agreed Directive has  been made public by Statewatch. September 21 2021: the European Parliament plenary has approved the revised law. October 28 2021: the revised law has been formally adopted by the Council and published in the EU Official Journal. Member States will have to transpose the new law by 18 November 2023).

Background

The existing Blue Card Directive was adopted in 2009. While it aimed to encourage admission of highly- qualified non-EU migrants, a report in 2014 (discussed here; the summary below draws on this earlier blog post) indicated that it had modest impact. Therefore the previous Commission tabled a proposal to replace it in 2016 (discussed here). The Council agreed its negotiating position in July 2017, as did the European Parliament. However, negotiations between the two institutions were difficult (see reports of December 2017, February 2018 and December 2018), and ended at the start of 2019. However, they were resumed in autumn 2020, leading ultimately to the recent agreement.

The UK, Ireland and Denmark opted out of the 2009 Directive and the 2016 proposal. However, having since left the EU, the current Directive is, and the revised Directive will be, relevant to UK citizens seeking to move to the EU after the end of the transition period in the withdrawal agreement, ie from the start of 2021.

The current law

What are the main features of the current law? First of all, it co-exists with national law on admission of highly-qualified workers. Next, Member States or the EU can enter into more favourable treaties with non-EU countries. Other EU law can set higher standards than the Directive, whereas Member States can set higher standards for some of its provisions.

The conditions for admission include a salary threshold of at least 1.5 times the national average. As an option, Member States can reduce this to 1.2 times the average for some jobs (managers and professionals). Highly qualified employment is defined as having a higher education qualification of at least three years. As an option, Member States may accept admission of those with five years’ professional experience in a field. They must have a work contract or job offer valid for at least one year. Member States can determine a quota of the overall numbers to be admitted to their territory.

A Blue Card must be valid for a period of between one and four years. Member States may choose to apply a labour market preference for EU and resident non-EU citizens (including long-term resident non-EU citizens in another Member State) upon first entry and during the first two years of residence. They may also choose to reject an application for ethical reasons (ie, trying to avoid a ‘brain drain’ from developing countries).

Applications can be made from outside the country or when legally resident, although Member States may opt to be more generous (considering applications also from those legally present), or less generous (requiring applications from outside the country, if national law provided for this when the Directive was adopted). Member States have to decide on an application within 90 days, and inform the applicant as to the reasons for any rejection. Refusals, non-renewals or withdrawals of Blue Cards must be open to legal challenge.

As for the rights of Blue Card holders, they are restricted to employment meeting the criteria for initial admission for two years. After then, Member States may treat them equally with nationals as regards highly-skilled employment. After two years, changes in employment are subject to prior authorisation of the authorities.

Blue Card holders can stay if they become unemployed and look for a replacement job – unless this happens multiple times or the unemployment lasts for more than three months. They have equal treatment with nationals as regards working conditions, education, social security and recognition of diplomas (except for study loans or grants and housing).

There are also rights for family members, derogating from some limits on family reunion in the relevant EU Directive. Blue Card holders do not need a minimum residence period or a prospect of long-term residence for their family member to join them. Integration measures can only apply after entry, and there is a shorter deadline for issuing permits.

Furthermore, there are derogations from the EU law on long-term resident (LTR) non-EU citizens. Blue Card holders can cumulate periods spent in multiple Member States, subject to certain conditions, to qualify for long-term residence status. There are longer permitted absences from the territory. And even before qualifying for LTR status, which takes five years, Blue Card holders can move to other Member States after only 18 months, subject to still carrying out highly-qualified employment (among other conditions).

The 2014 report

According to the 2014 report on the application of the Directive, the numbers admitted with a Blue Card were modest (15,000 in 2013). Eight Member States had set a quota for the number of admissions. Six Member States opted to reject applications in national law on ‘brain drain’ grounds, although none had actually rejected an application on these grounds. However, only two Member States had set higher salary thresholds than the usual rule (1.5 times the average salary) set in the Directive. Nine Member States legislated for the option to have a lower salary threshold for some workers, although only four made active use of it.

Most Member States applied some kind of labour market test before issuing a Blue Card. One Member State had set an overall time limit of four years for Blue Card holders, even though there is no explicit rule in the Directive on this point (as compared to the Directives on seasonal workers – discussed here – and intra-corporate transferees – discussed here).

Fifteen Member States had implemented the option to withdraw the Blue Card if the holder needs social assistance, and two Member States applied a pre-existing national rule requiring applicants to apply from outside the country of origin. About half the Member States required a 90-day wait for a decision on the application, and just under half set shorter deadlines. Nine Member States did not grant equal treatment in employment after a two-year waiting period, and most required authorisation in the event of a change in employer within that period. A number of Member States did not grant equal treatment in education, and about half of the Member States limited the application of a rule permitting longer absences from EU territory as regards acquiring long-term resident status.

On the other hand, some Member States exercised the options to apply more favourable rules. Twelve Member States opted to treat experience as equivalent to qualifications. Nine Member States took the option to set a lower salary threshold (1.2 times the average salary) for professions in shortage occupations. Most Member States allowed applicants to apply for a Blue Card not just if they were legally resident, but also if they were legally present. Several Member States had more favourable standards as regards equal treatment.

The Commission’s original impact assessment for the 2009 version of the Directive (see my discussion in the Commentary on EU Immigration and Asylum Law) suggested that the EU is comparatively weak at attracting highly-skilled migrants, in part due to its immigration regime. The main features of national immigration rules which attracted migrants were routes to permanent residence, geographical mobility, and the publicity effect of the schemes. Academic analysis also suggested that liberal rules on family reunion and job mobility were significant.

However, the main elements of the original Blue Card proposal which aimed to attract highly-skilled migrants were dropped or watered down: a short decision-making deadline; a derogation from the salary threshold for younger workers; and the rules on in-country applications, job mobility and validity of permits. The evidence as regards implementation of the Directive suggested that on most of these issues (except for in-country applications), most Member States apply the options in the Blue Card Directive in such a way as to deter applications. Moreover, the mere existence of competing national schemes diluted the publicity effect of the Blue Card system.

Impact assessment

The impact assessment for the 2016 proposal built upon the 2014 report and the impact assessment for the original Directive, noting again that the EU retained fewer highly-skilled workers than its competitors, and arguing again that there was a demographic and economic argument to attract and retain higher numbers. 38,000 residence permits for highly-skilled workers had been issued in 2014 – although that included not only Blue Cards but also national permits. These numbers had been increasing (23,000 in 2012; 34,000 in 2013) but still fell short of the numbers desired on economic grounds. (The national/Blue Card breakdown for those years was: national permits 19 755 in 2012, 21 940 in 2013, and 24 922 in 2014; EU Blue Cards 3 664 in 2012, 12 964 in 2013, and 13 852 in 2014).

In the view of the impact assessment, parallel national schemes were ‘neither effective nor efficient’, with the ‘complexity of the current regulatory framework for recruiting’ highly-skilled workers creating ‘costs and administrative burden’. National schemes, by definition, could not offer the benefits of labour mobility between Member States, but the impact of the mobility rules in the 2009 Directive was ‘very limited’.

It was also desirable to increase retention of students graduating in the EU – although the revised students’ Directive already aims to do that. The issue here was that new entrants to the workforce tend to obtain lower salaries than older workers, and so might fall short of the salary thresholds in the 2009 Directive. Also, the EU system did not include specific rules on highly-skilled migrants starting new businesses, which was a particular feature of the ICT industry. Applying the Blue Card system to refugees and others with international protection could address the problem that some of them are under-employed (ie taking jobs below their skill or education level).

In particular, workers were deterred by: the salary threshold; labour market restrictions; limited possibility of mobility; processing times; delayed admission of family members; the requirement of a one-year work contract (which is more restrictive than competing national laws); lack of familiarity with Blue Cards; and exclusion of entrepreneurs, service providers, and those with international protection.

Ultimately the Commission’s proposal aimed to address many of these points. However, it did not include service providers, despite raising the issue, due to a lack of evidence for a change in the law. It also ruled out the more radical step of moving to an ‘expression of interest’ system.

(See also the executive summary of the impact assessment, and its Annexes).

The revised Directive

The revised Directive, if officially adopted, will expand the scope of the Directive to include refugees and other beneficiaries of international protection, as well as non-EU family members of EU citizens. The Commission also proposed that it should also apply to non-graduates who had three years or more of equivalent professional experience. However, Member States thought this went too far, and the final text is a compromise: it will extend only to non-graduates with three years’ equivalent experience in the high-tech field. For other fields, Member States will have an option to apply the Directive to non-graduates with five years’ equivalent experience.

Next, the Commission had proposed to eliminate the possibility of parallel national schemes for highly qualified workers. However, the Council insisted on maintaining the possibility of such schemes, so the final Directive retains this option. As a compromise, there are new provisions saying that any more favourable rules relating to national schemes must also apply to Blue Card applicants or holders, as regards procedural rights, application fees, fast-track applications for designated employers, labour market access, equal treatment, and family reunion. On the other hand, Member States are not required to extend national rules on substantive conditions for admission to Blue Card applicants or holders.

Similarly, the Commission had proposed that Member States could only retain pre-existing treaties on highly qualified labour migration with non-EU countries, but not sign new ones – but the agreed Directive reverts to the status quo that new treaties are possible.

As for conditions of admission, the period of any contract or job offer necessary to apply for a Blue Card will be cut from one year to six months. The salary threshold will be set between the average salary and 1.6 times the average salary (the Commission had proposed 1 to 1.4 times the average salary). This threshold may be cut by 20% for recent graduates (within the last three years) and (as in the current law) for professionals and managers, but with a floor (added in the final directive): the reduced threshold cannot go below the average salary. (The Commission had proposed that both of these reductions would be mandatory).

A labour market preference test can still be applied on entry. The Commission’s proposal to limit its use was rejected (the proposal had suggested that it could only be imposed where the ‘labour market situation undergoes serious disturbances such as a high level of unemployment in a given occupation or sector, which may be limited to a particular part of their territory’. Also the exception would only have applied in principle for 12 months, subject to 12-month extensions and notification of the Commission). Quotas on entry can still be applied too (the Commission had not proposed to abolish them as regards the first Member State, as the Treaties guarantee Member States the right to set them).

The Commission had proposed to remove recourse to social assistance as a trigger to withdraw Blue Card status, but the final Directive retains it. At the behest of the European Parliament, it will be harder to withdraw a Blue Card from a holder due to unemployment.

Blue Cards will now be valid for a minimum of two years (in place of one to four years in the 2009 Directive). Applications for a Blue Card will now be possible whenever the applicant is legally resident; the limited derogation allowing Member States to ban in-country applications will be deleted. It will remain an option to allow applications from those who are legally present (the Commission had proposed to make this mandatory).

The time period to reply to applications will remain at 90 days (the Commission had proposed to cut it to 60 days). A new rule provides for decisions on applications to be fast tracked to 30 days if the employer is registered in a special scheme. There would be an express right to apply for renewal, a judicial remedy against refusals, et al, and a requirement that fees must be proportionate.

Next, labour market access for Blue Card holders will be wider. In place of the current rules (restriction to highly qualified employment for two years, changes of job subject to authorisation during that period, an option to allow equal treatment in labour market access after two years), Member States may apply a labour market preference test, and approval to change jobs linked to that test, if Blue Card holders seek to change jobs within the first year. After that they may only be required to inform Member States about a change of job. (This is a compromise compared to the Commission proposal, which had suggested that Member States would have to give Blue Card holders full access to highly skilled employment from the outset, with no requirement for approval to change jobs from authorities and no labour market preference test).

The revised Directive will provide that Member States now have an option to allow Blue Card holders to undertake self-employment in parallel with their employment – but they can set conditions and limits, and self-employed activity must be subsidiary. The Commission’s proposal here was more ambitious.  

The waiting period for family reunion will be cut to nothing if applications for family members were submitted at the same time as the Blue Card application. If they were not, it will be cut to 90 days, instead of six months (the Commission had proposed 60 days). Family members will be able to take up any employment or self-employment. Member States will have to cumulate periods spent in different Member States towards the autonomous residence permit which a family member can obtain after five years (currently this is an option), although as a compromise compared to the Commission proposal, Member States may insist that the last two years of this period was spent on their territory.

There will also be new benefits as regards obtaining LTR status. The Commission’s proposal to cut the usual five-year wait to three years (subject to conditions in the event of unemployment) was rejected. However, it will be easier to accumulate five years’ residence in multiple Member States: Member States will have to cumulate not only residence as a Blue Card holder (as the current law provides), but also residence as a researcher, a student (subject to limits), a highly-qualified worker under national law, or a beneficiary of international protection to this end. (This is less liberal than the Commission proposal, which would have required cumulation of any periods spent as a legal resident on any basis in different Member States). The current requirement that the last two years must have been spent in the Member State where the application was made will be retained. On the other hand, the current option for Member States to limit access to LTR status after extended periods of absence will be dropped. (In other words, extended periods of absence for any reason will be able to count towards obtaining LTR status).

Before obtaining LTR status, the mobility provisions will be improved too. Blue Card holders will be able to carry out business activities in another Member State for 90 out of 180 days without a need for authorisation, although if they are travelling from a non-Schengen to a Schengen State for this purpose the latter may ask for evidence.

They will also be able to move fully to another Member State after 12 months, rather than 18. However, the final Directive did not follow the Commission’s proposal to simplify this process even more radically – namely, to allow a Blue Card holder to start work in the second Member State as soon as they had submitted the application. Rather, the final Directive provides that if the Blue Card holder moves from a non-Schengen to a Schengen State, the latter can ask for evidence at the border. Member States would will to decide on the applications within 30 days, but they can refuse if the Blue Card holder had been abusing the system. There will be further simplifications for family members joining them.

Finally, Member States will have two years to give effect to the revised law. The deadline to apply it will therefore likely fall in summer or autumn 2023.

Comments

Whether or not the EU should prioritise the admission of highly qualified non-EU workers and seek to encourage their admission, it is a long-established policy. The following comments focus on how much the revised law is likely to contribute to that objective.

Although many of the Commission’s planned suggestions for reform of the Blue Card system were not accepted in full, most were accepted in part, on the basis of some form of compromise. First of all, while its mandatory extension of scope to graduates of the ‘University of Life’ will be limited to the computing industry, Member States will still have the option to extend it to other non-graduates with sufficient equivalent experience if they wish. Secondly, its extension to refugees and persons with subsidiary protection could be particularly useful to those who are highly qualified.

Thirdly, although parallel national schemes will still exist, their comparative attraction as compared to the Blue Card system will be reduced, since they will be unable to provide more favourable terms than the Blue Card law in many respects. Conversely, it will still be possible for Member States’ systems to compete with the Blue Card as regards substantive terms of admission, although even on this front the liberalisation of the Blue Card admission rules (extension of scope, shorter minimum contract term, labour market preference test, longer minimum validity, salary thresholds) may mean that the gap between national and Blue Card systems is reduced.  And, of course, the Blue Card system offers the benefit of mobility between Member States (itself improved by this Directive), which national schemes cannot.

However, note that Member States can still offer more favourable terms for those applying to national schemes for highly qualified workers as regards access to national systems of long-term residence (which can also continue to exist in parallel to the EU LTR system, according to the LTR Directive). On this point, the rejection of the Commission’s proposal to cut the waiting period for EU LTR status for Blue Card holders is significant, because it means that it is easier for national schemes to attract highly qualified workers by remaining more generous on this issue. The substance of national LTR status might be more generous too (more equal treatment than EU law on EU LTR status requires, for instance). The negotiators of the revised Blue Card law may have missed an opportunity to address this issue by also simplifying transfer between the parallel national and EU systems, or  by adopting rules on holding both national and EU status at the same time.

A proposal to amend the EU LTR law is due later this year, and possibly the revised Blue Card rules on the relationship between parallel national and EU systems could be a template for dealing with that issue as regards LTR status too. Again, a simplified transfer between national and EU systems, or rules on holding both EU and national status simultaneously, ought to be worth considering.

There is a risk that the rules on equality between EU and national schemes results in levelling down – ie, Member States simply removing more favourable features of national systems, resulting in the EU/national systems as a whole being less attractive to non-EU citizens, thus conflicting with the objective of the Directive of encouraging more highly qualified migration. On the other hand, the new Directive could have the reverse effect: Member States particularly keen to attract highly qualified workers may improve national rules in areas where equal treatment is not required (for instance, salary thresholds or long-term residence status), resulting indirectly in supporting the new law’s objectives.

Fourthly, as regards admission rules, the reduction in the length of required contract may have a positive effect in achieving the new law’s objectives. On the salary threshold though, there may in practice be no change: since most Member States apply the 1.5 x average salary threshold already, they are not required to change it to meet the new law’s requirement of a threshold between 1 and 1.6 times national average salary. (The Commission proposal of 1 to 1.4 times national average would, on the other hand, necessarily have compelled every Member State to reduce their threshold). Nor will there necessarily be a change regarding the reduction in the salary threshold for shortage occupations and recent graduates – given that these reductions are optional. As noted already, Member States which are particularly keen to retain national schemes for admission of highly qualified workers may wish to retain a gap between the salary thresholds in EU and national schemes – in which case, they may be reluctant to use the opportunity to reduce the salary threshold for the Blue Card scheme, or to use the relevant optional derogations to reduce the threshold for some groups of workers. Again, though, they may choose rather to reduce the salary threshold for national schemes to retain their comparative attractiveness – thus attracting more highly qualified workers overall, albeit not as Blue Card holders.

Next, the continuation of labour market tests at entry and during the first year may still limit the numbers coming, although the new law definitely liberalises labour market access compared to the 2009 Directive (not much so as regards self-employment though). Allowing applications in-country for all Member States will have a modest effect, since most allowed it anyway. Similarly, few Member States banned applications for renewal; and it is arguable that the rules in the new Directive on renewal, judicial remedies and fees simply confirm the correct interpretation of the existing Directive.

Simplified rules on admission of family members, and their access to employment, may encourage applications from those with family members, particularly those whose spouses wish to work. While the changes on LTR status are modest, and do not affect parallel national rules on LTR status which may be more decisive in influencing applicants, they will be useful for those who have held (or still hold) another status.

It remains to be seen whether the new law achieves its desired objectives. So far, the admission of highly qualified migrants has not been enough to cause a brain drain in non-EU countries, or to contribute much towards the demographic issues the Commission is concerned about. Even the most paranoid ‘Great Replacement’ folks should find it hard to panic about increases of less than one ten-thousandth of the EU population.

It seems likely that the revised law will increase the number of Blue Card holders, as all the amendments push in that direction; none of them make Blue Cards less attractive or harder to get. The departure of the UK from the EU might increase the number of Blue Card applications even if the law had not been amended (although the numbers of UK citizens moving to the EU may nevertheless fall as compared to when free movement applied). Having said that, the new law only indirectly impacts national schemes for admission of highly qualified workers, which (for the reasons discussed above) might still be able to flourish. Also, the impact of a change in migration law can never cancel out other factors influencing migration flows – which include the response of competing non-EU countries (which might respond to any increased appeal of the Blue Card by making their own schemes more attractive), changes in the EU economy (as well as the economies of competing destinations, and source countries), and changes in the educational attainments of EU residents. And even if the numbers of highly qualified migrants coming to the EU (under either EU or national schemes) don’t increase much or even decline, they might nevertheless be higher as a result of the new law than they would have been without it.  

Barnard & Peers: chapter 26

JHA4: chapter I:6

Photo credit: Kerstin Göpfrich, via Wikimedia Commons

The new Blue Card proposal: Will it attract more highly skilled workers to the EU?

Jean-Baptiste Farcy, Research Assistant, Universite Catholique de Louvain

Introduction

Following the failure to adopt a horizontal Directive, proposed in 2001, on the conditions of entry and residence of third-country nationals (TCN) for the purpose of employment in the European Union (EU), EU labour migration policy is characterised by its fragmentation and sectoral approach. Given the sensitive nature of immigration policies and Member States’ attachment to their sovereignty, the only way forward was to adopt a limited number of legal instruments addressing the conditions of admission for few selected categories of economic migrants.

One of these categories is highly qualified workers. As they are deemed to be beneficial from an economic perspective, there is increasing competition among industrialised States to attract them. To that end, the European Commission proposed in 2007 to facilitate the admission of highly qualified workers and to grant them attractive residence conditions, as well as to create a common fast-track procedure. Two years later, the proposal led to the adoption of Directive 2009/50, known as the “Blue Card” Directive.

However, as discussed in the Commission’s 2014 report on the application of the Blue Card Directive, this Directive has not proven to be very effective, as shown by the limited number of permits (blue cards) delivered which is below expectations. While this may be explained by the subsistence of national schemes and the lack of publicity of the Blue Card, the conditions of entry and residence laid down in the Directive are arguably too restrictive.

For this reason, Jean-Claude Juncker declared his intention to review the Directive in order to enhance its attractiveness and overcome its intrinsic weaknesses. The Commission followed the desire of its President and the reform of the Blue Card Directive was part of the European agenda on migration of May 2015. Following four months’ public consultation on the future of the Blue Card Directive (results can be consulted here), the reform proposal was made public on 7 June 2016.

This blog post assesses the main developments included in the proposal and analyses whether it could be more effective in attracting talents and skills to Europe. First, a short review of the current Blue Card Directive is necessary to understand the extent of the proposed reform. Given the limited scope of this commentary, the 2009 Directive cannot be described at length but I will focus on its main characteristics.

It should be noted that the UK, Ireland and Denmark have opted out of the Directive. However, if the UK leaves the EU in future without any special arrangements on the movement of persons with the EU, the Directive will paradoxically become relevant to the UK nonetheless – since it would then regulate the admission of highly qualified British citizens to the remaining European Union.

The current Blue Card Directive and its limits

Although the Blue Card Directive aims at offering favourable admission and residence conditions to highly qualified workers, numerous intrinsic weaknesses have hindered its attractiveness. Labour migration being a sensitive issue, such weaknesses are to a large extent the result of Member States’ reluctance and dissension.

This is first exemplified by the determination of who qualifies for a Blue Card. According to Article 3 of the Directive, a highly qualified worker is someone who occupies a highly qualified employment, which is considered as requiring, either the successful completion of a post-secondary higher education programme lasting at least three years or, when provided by national law, at least five years of relevant professional experience. As a result, the very definition of who is a highly qualified worker is not uniform and may vary from one Member State to another.

Restrictive conditions of admission have made the Blue Card unpopular as they limit the number of potential applicants. For a Blue Card to be delivered, the TCN must have a valid work contract or a binding job offer if allowed by national law, and the prospective salary has to be at least 1.5 times the average gross national salary (meaning at least 51.466€ in Belgium). While the first condition means that a job must be secured from abroad (in-country application may be accepted in accordance with national law), the second criteria benefits large companies and senior positions.

In line with most Member States’ labour migration policy, the Blue Card Directive is based on a demand-driven entry system. As a result, it is no surprise that a TCN must have a valid work contract in order to apply for a Blue Card and the Directive does not provide for job-seeking permits. Also, the Directive allows Member States to conduct a labour market test which is a ground for refusal to deliver or renew a Blue Card during the first two years of employment (Article 8). This employer-led approach also justifies the fact that unemployment exceeding three consecutive months or occurring more than once during the period of validity of the Blue Card is a cause of withdrawal of the Blue Card (Article 13).

Furthermore, for the first two years of employment, Blue Card holders have a limited access to the labour market in the Member State concerned. Changing job is subject to prior authorisation, the new job must be highly qualified employment, and the salary condition applies (Article 12). Equal treatment with nationals, yet limited to access to highly quailed employment, may be granted after two years. As part of an approach based on the needs of Member States, the current Blue Card Directive suffers from significant shortcomings.

In contradiction with the internal (labour) market logic, the current Blue Card Directive provides for limited facilitation for intra-EU mobility, as a result of Member States’ dissension. TCN can only move to another Member State after 18 months and the Blue Card holder does not have a right to work in that second Member State. Because the TCN must apply for a Blue Card in that Member State, which may be lengthy (90 days at most), intra-EU mobility is subject to the fulfilment of the conditions imposed for first admission. For these reasons, intra-EU mobility is severely restricted even though TCN and highly qualified workers are usually more mobile compared to nationals and low-skilled workers.

While all these elements undoubtedly contribute to the unpopularity of the Blue Card, the most significant reason beyond its lack of success is the subsistence of national schemes for admitting the same category of highly qualified workers. This has resulted in parallel rules, conditions and procedures which precludes an EU-wide usage of the Blue Card system and limits its publicity. The limited success of the Blue Card does not mean that few highly qualified people have been admitted in Europe, the majority of them have been allowed under national schemes (24,922 out of 38,774 in 2014).

Even though the Blue Card Directive is an important instrument of the EU labour migration policy, it has had limited harmonisation effect because it only sets minimum standards and Member States retain a significant margin of discretion. Also, although the Directive grants a number of rights to highly qualified TCN, various restrictions are limiting the attractiveness of the Blue Card scheme, thus failing to supersede national schemes.

Now that the shortcomings of the current Directive have been exposed, let us examine how the Commission proposal intends to overcome them in order to meet the objectives that the Directive was meant to achieve.

The Commission proposal

Among the various options considered, the Commission chose to ease the admission conditions and make the Blue Card accessible to a wider group of highly skilled workers, while not extending the scope beyond highly skilled TCN. The proposal also intends to improve the rights associated with the Blue Card.

Firstly, the concept of “highly qualified employment” is replaced by that of “highly skilled employment” in order to include individuals who have completed the equivalent of a bachelor degree as well as those who have at least three years of relevant professional experience. The Commission also proposes to extend the scope of the Directive in order to include highly skilled beneficiaries of international protection. Recognised refugees already have access to the domestic labour market, but being a Blue Card holder would grant them rights associated with the Blue Card, including greater intra-EU mobility.

Secondly, the proposal clearly states that “Member States shall not issue any other permit than an EU Blue Card to third-country nationals for the purpose of highly skilled employment”. In hope to develop the Blue Card into a truly EU-wide scheme, all parallel domestic rules and procedures would be abandoned. Potential highly skilled TCN would have no choice but to apply for an EU Blue Card, if they wished to work in the EU. The EU would then have a genuinely EU-wide scheme but, as such, this would not make the EU more attractive. While this would be important in terms of visibility and clarity, it is likely to attract reluctance from Member States.

Thirdly, the salary condition would be lowered in order to be less restrictive and make the Blue Card more accessible. The salary threshold remains relative given the wide disparity among Member States and shall be in between 1.0 and 1.4 time the average gross salary in the Member State concerned. The maximum threshold would then be less than the current minimum. The proposal also provides for two exceptions for which the salary threshold shall be lower (80% of the above threshold). This would apply for professions suffering from shortage occupations as well as for young graduates.

Since the current salary condition is relatively high, the proposed threshold is likely to enhance the effectiveness of the Blue Card as it would be more inclusive. In particular, the exception in favour of young graduates, combined with the new Directive 2016/801 allowing students/researchers to stay at least nine months after the completion of their studies/research in order to seek employment (as discussed here), reinforces the attractiveness of the EU and make it easier for young graduates, who cannot claim high salaries, to apply for a Blue Card.  

Fourthly, the possibility to conduct a labour market test would be limited to exceptional circumstances such as a high level of unemployment in a given occupation or sector and justification is to be given to the Commission. As States’ oversight of the labour market is severely limited, a highly skilled TCN who meets the admission conditions, including a valid work contract, could not normally be refused access on the ground that another worker on the labour market is available. As a result, the Blue Card system would be more effective in attracting highly skilled TCN as it moves further away from a labour market adjustment rationale.  

Fifthly, labour market access would be significantly increased as the Blue Card holder is to be granted full access to highly skilled employment. The TCN would be allowed to freely change employer as long as it still qualifies as a highly skilled employment, even during the first two years of employment. However, this would not affect the possibility for Member States to withdraw or refuse to renew a Blue Card where conditions are not fulfilled, notably the salary criteria. The proposal also allows Blue Card holders to engage in self-employed activity, yet in parallel only. Since this goes towards more autonomy for TCN and greater equality with nationals, the attractiveness of the Blue Card is likely to be enhanced. 

Sixthly, Blue Card holders would benefit from facilitated access to the long-term resident status. If adopted as proposed, the new Blue Card Directive would derogate from Directive 2003/109 by granting long-term resident status after three years (not five) of legal and continuous residence within the territory of the Member States concerned. However, if the TCN becomes unemployed and does not have sufficient resources to maintain him/herself, the long-term resident status may be withdrawn before the usual five years’ time-limit is reached. Again, this is welcome as it enhances the TCN’s prospects of integration, which may be an important consideration when deciding on a country of destination.

Finally, the proposal wishes to reinforce the attractiveness of the EU by facilitating intra-EU mobility, in line with the desire to make the Blue Card a genuinely EU-wide scheme. The minimum residence period required before a Blue Card holder can move to another Member States is thus shortened to 12 months. While the TCN still needs to apply for a Blue Card in that second Member State, he or she would be allowed to work immediately after submitting an application (this would no longer be a possibility to be defined by national law). Also, Member States’ discretion is limited. Most notably, a labour market test would only be allowed if also in place for first entry applications, and no quotas would be allowed, contrary to the current situation.

Indeed, Member States’ right under Article 79(5) TFEU to determine the volumes of TCNs coming for the purpose of work is limited to TCNs coming directly from third-countries and does not apply in case of intra-EU mobility. As a result, intra-EU mobility would clearly be enhanced and TCNs would enjoy facilitated access to the labour market of other Member States. While this reinforces the impression that there is a single EU labour market, which is far from true, it remains to be seen whether highly skilled TCN actually move across the EU. Since the vast majority (around 90%) of Blue Cards are currently delivered by one Member State (Germany), figures on the mobility of highly qualified TCN is difficult to obtain.

Comment

Concerned about the underperformance of the Blue Card system launched in 2009, the Commission proposed a complete overhaul of this flagship policy in order to catch up in the competition among industrialised states to attract highly workers.

Overall, for the reasons explained above, the proposal appears to be relatively ambitious. Less restrictive admission criteria would make the Blue Card more inclusive and Member States’ leeway would be reduced, thus furthering harmonisation. Also, the limited possibility to undertake a labour market test means that labour migration is to be more than a labour market adjustment channel.

The system remains demand-driven, as potential candidates still need a work contract, but highly skilled labour is also praised as a source of human capital. This is illustrated by the fact that the nature of labour migration is meant to be less temporary than in the past. The Commission proposal intends to give Blue Card holders facilitated and quicker access to the long-term residence status. While this is arguably an element of attraction for potential migrants, this may be linked to long-term population objectives given Europe’s demographic trends and needs for human capital.

Despite these positive elements, the Commission proposal may prove too ambitious for Member States to approve, yet insufficient to effectively attract a significant number of highly skilled workers to the EU.

Although the Blue Card Directive needed to be reformed given its limited added value, the Commission proposal is arguably untimely. As we have witnessed with the current asylum crisis, there is increasing political resistance to developing common European rules related to migration, particularly when such rules imply a loss of sovereignty and control over entry rules. The Commission high level of ambition is therefore likely to attract resistance, especially since national schemes for highly skilled workers would no longer be allowed. As a result, the legislative process may prove to be long and difficult, despite the increasing recognition that skilled labour migration is beneficial to economic competitiveness.

Unlike countries such as Canada or Australia, the EU Member States do not face a high number of applications. The goal of the Commission is therefore to increase the attractiveness of the EU through migration policy. While a harmonised EU-wide scheme would enhance clarity and predictability for the benefit of both employers and potential candidates, the Blue Card system is only one element of attraction among others. As the public consultation tells us, the quality of life (including welfare and health care systems, wages, safety and the environment) makes the EU attractive, yet difficulties of getting a permit and the lack of integration perspective (openness to immigration, language, integration assistance,…) are unappealing factors.

The Commission proposal would arguably ease the issuance of a permit as the Blue Card would be accessible to a wider group of highly skilled workers, including young graduates. However, it is doubtful whether the goal of attracting more skilled labour to the EU would be met (the estimate of the Commission that at least 32,000 additional permits would be delivered under the new scheme seems quite optimistic). For instance, the liberal Swedish immigration system has not resulted in a sharp increase in the number of highly skilled workers. Therefore, while the Commission proposal is more inclusive than the current Directive, it is uncertain whether the goal of attracting more skilled labour would be reached without accompanying policies.

Barnard & Peers: chapter 26

JHA4: chapter I:6

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The new Directive on immigration of students and researchers: a small step or a big leap forward?

Steve Peers

For a number of years, the EU has aimed to attract highly-skilled non-EU migrants to its territory. However, the existing legislation on this issue – the researchers’ Directive, adopted in 2005, and the students’ Directive, adopted in 2004 – have only had a modest impact on attracting more students and researchers to the EU, according to the Commission’s reports (see here and here) on the two Directives, issued in 2011.

Consequently, the Commission proposed an overhaul of this legislation in 2013. The European Parliament (EP) and the Council recently agreed on the text of this proposal (for the text of the provisional version of the future Directive, see here; the final version will be ‘tidied up’ a little legally). As you would expect, the EP and the Council compromised between their respective positions (for those positions, see here and here), which I discussed in an earlier blog post. [Update: the Directive was officially adopted in May 2016. Member States must apply it by May 2018.]

I’ll examine first the background and content of the new Directive, then look at how effective it is likely to be in its objective on increasing the numbers of researchers and students coming from third States.

Background

The current students’ Directive also applies to the admission of school pupils on exchange programmes, unpaid trainees and volunteers, although Member States have an option to apply it to the latter three groups of migrants. The CJEU has ruled twice on the interpretation of this Directive. In  Sommer it ruled that Member States could not apply a labour-market preference test for students; in Ben Alaya case (discussed here), it ruled that Member States must admit students who comply with the rules on admission in the Directive. The same logically applies to the current researchers’ Directive. The UK and Denmark opted out of both Directives, while Ireland opted in to the researchers' Directive. All three countries have opted out of the new law.

The new law

The new Directive merges the students’ and researchers’ Directives, making major changes to them both. First of all, the Commission proposed that Member States would be obliged to apply the currently optional rules relating to school pupils, unpaid trainees and volunteers, as well as rules on two new groups of migrants: au pairs and paid trainees. The EP agreed with this idea, while the Council rejected it entirely. Ultimately, the two institutions compromised: the new Directive will have binding rules on (paid and unpaid) trainees and some volunteers (those participating in the EU’s European Voluntary Service), although stricter conditions will apply to the admission of trainees (more on that below). However, the rules on other volunteers and school pupils will remain optional, along with the new rules on au pairs.

Next, the Commission proposed to limit Member States’ current power to apply more favourable rules for students and researchers, confining that power to only a few provisions relating to the rights of migrants, while fully harmonising the rules on admission. The final Directive accepts the basic principle that the power to set more favourable standards should be more limited that at present, but imposes fewer such constraints than the Commission wanted. Member States will be allowed to apply more favourable rules for the persons concerned as regards the time limits on their residence permits. Many of the conditions relating to admission and withdrawal or non-renewal of the right to stay will be optional, not mandatory (as the Commission had proposed), and the Council insisted on many additional options being added. A clause in the preamble sets out the Council’s wish to provide expressly that Member States can have rules on admission of other categories of students or researchers.

Against the Commission’s wishes, the final Directive provides that the current rules on delegating decision-making to research institutions or universities will remain. Furthermore, it adds that Member States can optionally delegate such powers as regards volunteers or trainees as well.

Trainees are defined (more restrictively than the current law) as those who have recently completed a degree (within the last two years), or who are currently undertaking one. Their time on the territory is limited to six months, although this can be longer if the traineeship is longer, and the authorisation can be renewed once. But Member States retain the power to set more favourable standards as regards these time limits.  

One striking feature of the agreed Directive is a new right for students and researchers to stay after their research or study to look for work or self-employment. The EU institutions agreed on the principle of this right, but disagreed on the details. According to the Commission, the right should apply for a period of 12 months, although after 3 months Member States could check on the genuineness of this search, and after 6 months they could ask the migrant to prove that they have real prospects. The EP wanted to extend the period to 18 months, and to make Member States wait longer to check on the genuineness of the job search or likelihood of employment. On the other hand, the Council wanted several restrictions: to reduce the stay to 6 months; to allow Member States to limit students’ possibility to stay to those who have at least a Master’s degree; to check on the likelihood of employment after 3 months; and to give Member States an option to limit the job search to the areas of the migrant’s expertise. The final deal splits the difference on the period of extra stay (it will be 9 months), and accepts the various optional limits on the right which the Council wanted.

As for students’ right to work, the current Directive allows them to work for at least for 10 hours a week. The Commission proposed to let them work for 20 hours a week, and to drop the option to ban students from working during their first year of studies. The EP agreed with this, but the Council wanted to revert to the current 10-hour a week limit, and introduce a possible labour-market preference test (overturning Sommer). Again, the final deal splits the difference: 15 hours’ of work allowed per week, with no labour market preference test.

Another issue was equal treatment of those who work. Currently, the EU’s single permit Directive provides for equal treatment of most third-country nationals who are allowed to work, even if (like students) they were not admitted for employment. However, that Directive excludes au pairs from its scope, and only applies where the relationship is defined as ‘employment’ under national law; this will not always be the case for researchers. The new Directive will extend the equal treatment rules to students and researchers, even if they are not considered employees, and to au pairs whenever they are considered employees. Even non-employees will have equal treatment for goods and services (besides housing and public employment offices). But the new Directive will not waive any of the various exceptions to equal treatment that the single permit Directive currently provides for, besides a few minor exceptions for researchers.

Also, the new Directive will replace the weak rules on family reunion in the current researchers’ Directive with a fully-fledged right to family reunion. The EU’s family reunion Directive will apply to Directive will apply to researchers, and many of the restrictions in that Directive will be waived: the minimum waiting period; the need to show a reasonable prospect of permanent residence; the need to show integration requirements for family members before entry (those rules can still be applied after entry; on the CJEU’s interpretation of those rules, see here). There will also be a shorter deadline to process applications, and family members will have a longer period of authorised stay. The EP and Council compromised on the Commission’s proposal to waive the waiting period before family members could access the labour market: the Council wanted to delete this proposed rule entirely, but it agreed to it with a derogation for ‘exceptional circumstances such as particularly high levels of unemployment’. However, the EP got nowhere with its suggestion to extend these more favourable rules to the family members of students as well.

The Commission aimed to simplify the current rules on the movement (‘mobility’) of researchers and students between Member States for the purpose of their studies and research. It also proposed to extend those rules to paid trainees, while the EP wanted to extend those rules to cover unpaid trainees and volunteers as well. However, the Council prevailed on this issue, restricting the scope of these rules to researchers and students (as at present), and adding very complicated details to the proposal on this issue.

Finally, the Commission proposed to introduce a 60-day deadline to decide on applications for admission, shortened to 30 days for those benefiting from EU mobility programmes. (The current laws have no deadlines to decide on applications at all). The EP supported an even shorter period to decide on applications (30 days), while the Council wanted to raise the time limit to 90 days. Yet again, these institutions split the difference, with a 90-day general rule and a 60-day rule where institutions have been delegated the powers to decide on applicants.

Comments

The agreed Directive should be appraised in light of the Commission’s impact assessment report for the proposed Directive, which made detailed arguments for the amendments which the Commission proposed. This report provided evidence that students or researchers are attracted to a job-search period after the end of research or studies, as well as by further employment rights for students and for researchers’ family members. Certainly the new Directive addresses all of these issues to some extent.

Conversely, would-be migrants are deterred by the great variety of national rules and the rules on mobility between Member States.  On this point, the new Directive will only reduce the variety of national rules modestly, and will install mobility rules more complex than those applying at present.

Presumably, it is also a deterrent for would-be students and researchers who are already legally present to leave the country to make their applications. To address this, the EP wanted to oblige Member States to consider in-country applications for researchers, but ultimately it could not convince the Council (or the Commission) to change the existing rules, which give Member States only an option to allow this.

As for the additional scope of the Directive, it is striking that the new binding rules on admission only apply to trainees who are undertaking or who have completed higher education, and to volunteers in the EU’s own programme. The latter change in the law is necessary in order to ensure the effectiveness of that programme, but the former change in the law is another example of the EU focussing its migration policy upon highly qualified employees. (Remember that according to the preamble to the new Directive, the admission of trainees who have not entered higher education is left entirely to national discretion). It’s unfortunate that at least the rules on equal treatment aren’t binding for all volunteers, school pupils and au pairs, to ensure that these migrants are not exploited and that domestic labour standards are not undercut.

Many of the changes in the Directive intending to attract qualified migrants would make even more sense if they were part of a ‘joined up’ policy – for instance, allowing trainees to make an in-country application for studies or research, or waiving some of the conditions in the EU’s ‘Blue Card’ Directive for highly-skilled migrants (reducing the income threshold, for instance) for graduate trainees, researchers, and students looking for work under this new Directive. Fortunately, there will be a chance to address this issue in the near future, as the Commission will soon be proposing an amendment to the Blue Card Directive (on the reform of that Directive, see here).

Overall, then, the new Directive has gone some distance towards accomplishing its intended objectives, but its effect could be further augmented in the near future by a broader reform of EU law on highly-skilled immigration in general.

Barnard & Peers: chapter 26

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The Blue Card Directive on highly-skilled workers: why isn’t it working, and how can it be fixed?

Steve Peers

Back in 2009, the EU adopted the so-called ‘Blue Card’ Directive on highly-skilled third-country nationals.  This Directive is a key part of the Commission’s policy plan on legal migration, which subsequently also led to the adoption of the single permit Directive, the seasonal workers Directive and the intra-corporate transferees Directive.

According to its preamble, the Blue Card Directive aims to ‘attract and retain’ highly-skilled workers from the rest of the world to the EU. This objective is obviously an essential aspect of the EU’s labour migration policy. However, the Commission’s recent report on the Directive indicates that it has made little impact at achieving its intended objectives. So it is necessary to consider how the Directive ought to be amended to achieve them.  

Implementation of the Directive

The Directive had to be applied by 19 June 2011, and all Member States bound by the Directive (the UK, Ireland and Denmark opted out) ultimately implemented it (twenty Member States applied it late). So the question is now whether they have implemented it correctly, and what its impact has been.

In practical terms, its impact has been limited, with only 3,664 Blue Cards issued in 2012, and 15,261 issued in 2013. Most have been issued by Germany and Luxembourg, and the main countries of origin are India, China, Russia, the USA and Ukraine.

A key feature of the Directive is that it co-exists with national schemes for attracting highly-skilled migrants, and most Member States have such schemes. In most Member States, these national schemes attract more migrants than the Blue Card system, although there are exceptions (such as Germany, Luxembourg and Romania) where the Blue Card is more attractive than the national system.

Overall, national systems attracted nearly 20,000 applicants in 2012, over five times the number of Blue Cards issued in that year. However, as seen above, the number of Blue Cards issued in 2013 increased significantly; but there are no statistics on national schemes available for that year to indicate whether a significant number of applicants were changing from national schemes to the Blue Card system.

The number of Blue Card holders can be affected in several ways. First of all, Member States have an option to set a quota for the number of admissions, and eight Member States have exercised it. Secondly, in order to avoid ‘brain drain’, Member States can enter into treaties with third states or opt to reject applications in national law on these grounds. No Member States have taken up the former option, and six have taken up the latter one, although none have actually rejected an application on these grounds. Given the low number of Blue Cards issued, the Commission is therefore surely right to conclude that for now, there is no indication that the Directive has led to a brain drain.

Thirdly, only two Member States have set higher salary thresholds than the usual rule (1.5 times the average salary) set in the Directive. Fourthly, most Member States apply some kind of labour market test before issuing a Blue Card. Fifth, while the Directive implicitly allows for renewal of Blue Cards, one Member State (Sweden) has set an overall time limit of four years for Blue Card holders, even though there is no explicit rule in the Directive on this point (as compared to the Directives on seasonal workers and intra-corporate transferees).

Next, fifteen Member States have implemented the option to withdraw the Blue Card if the holder needs social assistance, and two Member States applied a pre-existing national rule requiring applicants to apply from outside the country of origin. About half the Member States require a 90-day wait for a decision on the application, and just under half set shorter deadlines. Nine Member States do not grant equal treatment in employment after a two-year waiting period, and most require authorisation in the event of a change in employer within that period. A number of Member States do not grant equal treatment in education, and about half of the Member States limit the application of a rule permitting longer absences from EU territory as regards acquiring long-term resident status.

There are also options for Member States wishing to apply more favourable rules. Twelve Member States have opted to treat experience as equivalent to qualifications. Nine Member States have set a lower salary threshold (1.2 times the average salary) for professions in shortage occupations. Most Member States allow applicants to apply for a Blue Card not just if they are legally resident, but also if they are legally present. Several Member States have more favourable standards as regards equal treatment.

Overall, the Commission concludes that it is too early to assess the actual impact of the Directive in terms of attracting highly-skilled applicants. It is concerned about ‘flaws in the transposition, the low level of coherence, [and] the limited set of rights and barriers to intra-EU mobility’. To that end, it issues veiled threats about possible infringement proceedings, but it does not intend to propose amendments to the legislation for now.  

Comments

What is the right immigration policy to attract highly-skilled migrants? In my assessment of this Directive in the Commentary on EU Immigration and Asylum Law, I examined the evidence in the Commission’s original impact assessment for this Directive, which suggests that the EU is comparatively weak at attracting highly-skilled migrants, in part due to its immigration regime. The main features of national immigration rules which attracted migrants were routes to permanent residence, geographical mobility, and the publicity effect of the schemes. Academic analysis also suggests that liberal rules on family reunion and job mobility are significant.

However, the main elements of the Blue Card proposal which aimed to attract highly-skilled migrants were dropped or watered down: a short decision-making deadline; a derogation from the salary threshold for younger workers; and the rules on in-country applications, job mobility and validity of permits.

The evidence as regards implementation of the Directive suggests that on most of these issues (except for in-country applications), most Member States apply the options in the Blue Card Directive in such a way as to deter applications. Moreover, the mere existence of competing national schemes dilutes the publicity effect of the Blue Card system.

Due to late implementation of the Directive and the absence of national statistics for 2013, it is too early to tell whether the use of national schemes for admission of the highly-skilled has actually declined following the implementation of the Directive. However, it is clear that the numbers admitted under the Blue Card system that year were less than the numbers admitted under national systems the year before. So it is clear that the Blue Card system has not by itself, at least initially, increased the total numbers of highly-skilled migrants entering the EU.

Interestingly, as discussed in a previous blog post, one of the candidates for Commission President, Jean-Claude Juncker, has specifically promised to re-examine this Directive, with a view to addressing demographic imbalances, providing a safe route to Europe and increasing the EU’s attractiveness to highly-skilled migrants.

What is the best route forward to this end? To increase the publicity effect of the scheme, it would be advisable to curtail or eliminate competing national schemes. To increase its attractiveness, it would be best to provide for: in-country applications for everyone legally resident or present in all Member States; shorter decision-making deadlines; a derogation from the salary threshold for younger workers; stronger rules on equal treatment as regards access to education and employment; a longer validity of initial permits; and flexibility to switch into self-employment, particularly if the migrant wants to establish a job-creating business. 

Member States would still be able to address social and economic concerns about migration by their power to set quotas on labour migration (which is guaranteed by the Treaties) and to require a labour market test before issuing a Blue Card; and they still could use the options available in the Directive, if necessary, to prevent a brain drain from developing countries.

Whoever ends up in charge of the European Commission this autumn should move forward at an early stage to relaunch the EU’s flagship labour migration policy.   

Barnard & Peers: chapter 26