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
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