The Novel Bluish Bill Of Fare Proposal: Volition It Attract To A Greater Extent Than 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 inward 2001, on the weather of entry as well as residence of third-country nationals (TCN) for the piece of work of occupation inward the European Union (EU), European Union labour migration policy is characterised yesteryear its fragmentation as well as sectoral approach. Given the sensitive nature of immigration policies as well as Member States’ attachment to their sovereignty, the alone way frontwards was to adopt a express number of legal instruments addressing the weather of admission for few selected categories of economical migrants.

One of these categories is highly qualified workers. As they are deemed to live beneficial from an economical perspective, at that spot is increasing contest alongside industrialised U.S. to attract them. To that end, the European Commission proposed inward 2007 to facilitate the admission of highly qualified workers as well as to grant them attractive residence conditions, equally good equally to create a mutual fast-track procedure. Two years later, the proposal led to the adoption of Directive 2009/50, known equally the “Blue Card” Directive.

However, equally discussed inward the Commission’s 2014 report on the application of the Blue Card Directive, this Directive has non proven to live really effective, equally shown yesteryear the express number of permits (blue cards) delivered which is below expectations. While this may live explained yesteryear the subsistence of national schemes as well as the lack of publicity of the Blue Card, the weather of entry as well as residence seat downward inward the Directive are arguably besides restrictive.

For this reason, Jean-Claude Juncker declared his intention to review the Directive inward club to heighten its attractiveness as well as overcome its intrinsic weaknesses. The Commission followed the want of its President as well as the reform of the Blue Card Directive was business office of the European agenda on migration of May 2015. Following 4 months’ world consultation on the hereafter of the Blue Card Directive (results tin live consulted here), the reform proposal was made world on vii June 2016.

This weblog ship assesses the principal developments included inward the proposal as well as analyses whether it could live to a greater extent than effective inward attracting talents as well as skills to Europe. First, a brusk review of the electrical flow Blue Card Directive is necessary to empathise the extent of the proposed reform. Given the express reach of this commentary, the 2009 Directive cannot live described at length but I volition focus on its principal characteristics.

It should live noted that the UK, Republic of Ireland as well as Kingdom of Denmark receive got opted out of the Directive. However, if the Britain leaves the European Union inward hereafter without whatsoever special arrangements on the movement of persons with the EU, the Directive volition paradoxically travel relevant to the Britain nonetheless – since it would so regulate the admission of highly qualified British citizens to the remaining European Union.

The electrical flow Blue Card Directive as well as its limits

Although the Blue Card Directive aims at offering favourable admission as well as residence weather to highly qualified workers, numerous intrinsic weaknesses receive got hindered its attractiveness. Labour migration beingness a sensitive issue, such weaknesses are to a large extent the outcome of Member States’ reluctance as well as dissension.

This is starting fourth dimension exemplified yesteryear the conclusion 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 equally requiring, either the successful completion of a post-secondary higher teaching programme lasting at to the lowest degree iii years or, when provided yesteryear national law, at to the lowest degree v years of relevant professional person experience. As a result, the really Definition of who is a highly qualified worker is non uniform as well as may vary from 1 Member State to another.

Restrictive weather of admission receive got made the Blue Card unpopular equally they boundary the number of potential applicants. For a Blue Card to live delivered, the TCN must receive got a valid piece of work contract or a binding chore offering if allowed yesteryear national law, as well as the prospective salary has to live at to the lowest degree 1.5 times the average gross national salary (meaning at to the lowest degree 51.466€ inward Belgium). While the starting fourth dimension status way that a chore must live secured from abroad (in-country application may live accepted inward accordance with national law), the minute criteria benefits large companies as well as 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 receive got a valid piece of work contract inward club to apply for a Blue Card as well as the Directive does non render for job-seeking permits. Also, the Directive allows Member U.S. to bear a labour marketplace seat examine which is a Earth for refusal to deliver or renew a Blue Card during the starting fourth dimension 2 years of occupation (Article 8). This employer-led approach also justifies the fact that unemployment exceeding iii consecutive months or occurring to a greater extent than than 1 time during the menstruation of validity of the Blue Card is a drive of withdrawal of the Blue Card (Article 13).

Furthermore, for the starting fourth dimension 2 years of employment, Blue Card holders receive got a express access to the labour marketplace seat inward the Member State concerned. Changing chore is bailiwick to prior authorisation, the novel chore must live highly qualified employment, as well as the salary status applies (Article 12). Equal handling with nationals, yet express to access to highly quailed employment, may live granted after 2 years. As business office of an approach based on the needs of Member States, the electrical flow Blue Card Directive suffers from important shortcomings.

In contradiction with the internal (labour) marketplace seat logic, the electrical flow Blue Card Directive provides for express facilitation for intra-EU mobility, equally a outcome of Member States’ dissension. TCN tin alone displace to roughly other Member State after eighteen months as well as the Blue Card holder does non receive got a correct to piece of work inward that minute Member State. Because the TCN must apply for a Blue Card inward that Member State, which may live lengthy (90 days at most), intra-EU mobility is bailiwick to the fulfilment of the weather imposed for starting fourth dimension admission. For these reasons, intra-EU mobility is severely restricted fifty-fifty though TCN as well as highly qualified workers are usually to a greater extent than mobile compared to nationals as well as low-skilled workers.

While all these elements undoubtedly contribute to the unpopularity of the Blue Card, the most important argue beyond its lack of success is the subsistence of national schemes for admitting the same category of highly qualified workers. This has resulted inward parallel rules, weather as well as procedures which precludes an EU-wide usage of the Blue Card scheme as well as limits its publicity. The express success of the Blue Card does non hateful that few highly qualified people receive got been admitted inward Europe, the bulk of them receive got been allowed nether national schemes (24,922 out of 38,774 inward 2014).

Even though the Blue Card Directive is an of import musical instrument of the European Union labour migration policy, it has had express harmonisation number because it alone sets minimum standards as well as Member U.S. retain a important margin of discretion. Also, although the Directive grants a number of rights to highly qualified TCN, diverse restrictions are limiting the attractiveness of the Blue Card scheme, thus failing to supersede national schemes.

Now that the shortcomings of the electrical flow Directive receive got been exposed, allow us examine how the Commission proposal intends to overcome them inward club to regard the objectives that the Directive was meant to achieve.

The Commission proposal

Among the diverse options considered, the Commission chose to ease the admission weather as well as brand the Blue Card accessible to a wider grouping of highly skilled workers, spell non extending the reach beyond highly skilled TCN. The proposal also intends to amend the rights associated with the Blue Card.

Firstly, the concept of “highly qualified employment” is replaced yesteryear that of “highly skilled employment” inward club to include individuals who receive got completed the equivalent of a bachelor grade equally good equally those who receive got at to the lowest degree iii years of relevant professional person experience. The Commission also proposes to extend the reach of the Directive inward club to include highly skilled beneficiaries of international protection. Recognised refugees already receive got access to the domestic labour market, but beingness 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 U.S. shall non number whatsoever other permit than an European Union Blue Card to third-country nationals for the piece of work of highly skilled employment”. In promise to railroad train the Blue Card into a genuinely EU-wide scheme, all parallel domestic rules as well as procedures would live abandoned. Potential highly skilled TCN would receive got no choice but to apply for an European Union Blue Card, if they wished to piece of work inward the EU. The European Union would so receive got a genuinely EU-wide scheme but, equally such, this would non brand the European Union to a greater extent than attractive. While this would live of import inward price of visibility as well as clarity, it is probable to attract reluctance from Member States.

Thirdly, the salary status would live lowered inward club to live less restrictive as well as brand the Blue Card to a greater extent than accessible. The salary threshold remains relative given the broad disparity alongside Member U.S. as well as shall live inward betwixt 1.0 as well as 1.4 fourth dimension the average gross salary inward the Member State concerned. The maximum threshold would so live less than the electrical flow minimum. The proposal also provides for 2 exceptions for which the salary threshold shall live lower (80% of the higher upwards threshold). This would apply for professions suffering from shortage occupations equally good equally for immature graduates.

Since the electrical flow salary status is relatively high, the proposed threshold is probable to heighten the effectiveness of the Blue Card equally it would live to a greater extent than inclusive. In particular, the exception inward favour of immature graduates, combined with the novel Directive 2016/801 allowing students/researchers to remain at to the lowest degree ix months after the completion of their studies/research inward club to seek occupation (as discussed here), reinforces the attractiveness of the European Union as well as larn inward easier for immature graduates, who cannot claim high salaries, to apply for a Blue Card.  

Fourthly, the possibility to bear a labour marketplace seat examine would live express to exceptional circumstances such equally a high bird of unemployment inward a given trouble or sector as well as justification is to live given to the Commission. As States’ oversight of the labour marketplace seat is severely limited, a highly skilled TCN who meets the admission conditions, including a valid piece of work contract, could non unremarkably live refused access on the Earth that roughly other worker on the labour marketplace seat is available. As a result, the Blue Card scheme would live to a greater extent than effective inward attracting highly skilled TCN equally it moves farther away from a labour marketplace seat adjustment rationale.  

Fifthly, labour marketplace seat access would live significantly increased equally the Blue Card holder is to live granted total access to highly skilled employment. The TCN would live allowed to freely alter employer equally long equally it nonetheless qualifies equally a highly skilled employment, fifty-fifty during the starting fourth dimension 2 years of employment. However, this would non touching the possibility for Member U.S. to withdraw or turn down to renew a Blue Card where weather are non fulfilled, notably the salary criteria. The proposal also allows Blue Card holders to engage inward self-employed activity, yet inward parallel only. Since this goes towards to a greater extent than autonomy for TCN as well as greater equality with nationals, the attractiveness of the Blue Card is probable to live enhanced. 

Sixthly, Blue Card holders would practise goodness from facilitated access to the long-term resident status. If adopted equally proposed, the novel Blue Card Directive would derogate from Directive 2003/109 yesteryear granting long-term resident status after iii years (not five) of legal as well as continuous residence inside the territory of the Member U.S. concerned. However, if the TCN becomes unemployed as well as does non receive got sufficient resources to keep him/herself, the long-term resident status may live withdrawn earlier the green v years’ time-limit is reached. Again, this is welcome equally it enhances the TCN’s prospects of integration, which may live an of import consideration when deciding on a province of destination.

Finally, the proposal wishes to reinforce the attractiveness of the European Union yesteryear facilitating intra-EU mobility, inward line with the want to brand the Blue Card a genuinely EU-wide scheme. The minimum residence menstruation required earlier a Blue Card holder tin displace to roughly other Member U.S. is thus shortened to 12 months. While the TCN nonetheless needs to apply for a Blue Card inward that minute Member State, he or she would live allowed to piece of work at nowadays after submitting an application (this would no longer live a possibility to live defined yesteryear national law). Also, Member States’ discretion is limited. Most notably, a labour marketplace seat examine would alone live allowed if also inward identify for starting fourth dimension entry applications, as well as no quotas would live allowed, reverse to the electrical flow situation.

Indeed, Member States’ correct nether Article 79(5) TFEU to create upwards one's heed the volumes of TCNs coming for the piece of work of piece of work is express to TCNs coming straight from third-countries as well as does non apply inward instance of intra-EU mobility. As a result, intra-EU mobility would clearly live enhanced as well as TCNs would relish facilitated access to the labour marketplace seat of other Member States. While this reinforces the impression that at that spot is a unmarried European Union labour market, which is far from true, it remains to live seen whether highly skilled TCN really displace across the EU. Since the vast bulk (around 90%) of Blue Cards are currently delivered yesteryear 1 Member State (Germany), figures on the mobility of highly qualified TCN is hard to obtain.

Comment

Concerned close the underperformance of the Blue Card scheme launched inward 2009, the Commission proposed a consummate overhaul of this flagship policy inward club to choose handgrip of upwards inward the contest alongside industrialised states to attract highly workers.

Overall, for the reasons explained above, the proposal appears to live relatively ambitious. Less restrictive admission criteria would brand the Blue Card to a greater extent than inclusive as well as Member States’ leeway would live reduced, thus furthering harmonisation. Also, the express possibility to undertake a labour marketplace seat examine way that labour migration is to live to a greater extent than than a labour marketplace seat adjustment channel.

The scheme remains demand-driven, equally potential candidates nonetheless necessitate a piece of work contract, but highly skilled labour is also praised equally a rootage of human capital. This is illustrated yesteryear the fact that the nature of labour migration is meant to live less temporary than inward the past. The Commission proposal intends to give Blue Card holders facilitated as well as quicker access to the long-term residence status. While this is arguably an chemical component of attraction for potential migrants, this may live linked to long-term population objectives given Europe’s demographic trends as well as needs for human capital.

Despite these positive elements, the Commission proposal may testify besides ambitious for Member U.S. to approve, yet insufficient to effectively attract a important number of highly skilled workers to the EU.

Although the Blue Card Directive needed to live reformed given its express added value, the Commission proposal is arguably untimely. As nosotros receive got witnessed with the electrical flow asylum crisis, at that spot is increasing political resistance to developing mutual European rules related to migration, peculiarly when such rules imply a loss of sovereignty as well as command over entry rules. The Commission high bird of ambition is so probable to attract resistance, especially since national schemes for highly skilled workers would no longer live allowed. As a result, the legislative physical care for may testify to live long as well as difficult, despite the increasing recognition that skilled labour migration is beneficial to economical competitiveness.

Unlike countries such equally Canada or Australia, the European Union Member U.S. practise non confront a high number of applications. The goal of the Commission is so to increment the attractiveness of the European Union through migration policy. While a harmonised EU-wide scheme would heighten clarity as well as predictability for the practise goodness of both employers as well as potential candidates, the Blue Card scheme is alone 1 chemical component of attraction alongside others. As the world consultation tells us, the character of life (including welfare as well as wellness aid systems, wages, security as well as the environment) makes the European Union attractive, yet difficulties of getting a permit as well as 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 equally the Blue Card would live accessible to a wider grouping of highly skilled workers, including immature graduates. However, it is doubtful whether the goal of attracting to a greater extent than skilled labour to the European Union would live met (the guess of the Commission that at to the lowest degree 32,000 additional permits would live delivered nether the novel scheme seems quite optimistic). For instance, the liberal Swedish immigration scheme has non resulted inward a sudden increment inward the number of highly skilled workers. Therefore, spell the Commission proposal is to a greater extent than inclusive than the electrical flow Directive, it is uncertain whether the goal of attracting to a greater extent than skilled labour would live reached without accompanying policies.

Barnard & Peers: chapter 26

JHA4: chapter I:6

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