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

Photo credit: www.shell.com

Ending the exploitation of seasonal workers: EU law picks the low-hanging fruit

 

Steve Peers

For a long time, it proved impossible for the EU to agree on legislation on migrant workers coming from non-EU countries. Eventually, the Member States were able to agree on some laws that mostly concerned higher-income migrants: the Blue Card Directive (on its implementation, see here) and the Directive on intra-corporate transferees (see discussion here). The EU has also adopted some general rules on the overall framework for admission of labour migrants (the so-called single permit Directive).

But for the first time last year, the EU also adopted rules on a less well-paid group of migrant workers: seasonal workers. This group of workers is potentially particularly vulnerable to exploitation and abuse. Does the recent Directive go far enough to protect them from these risks?

Content of the Directive

Member States have to apply this Directive by 30 September 2016, and the UK, Ireland and Denmark opted out of it. It is limited in scope to those who normally reside outside the territory of the EU, and who apply to be admitted as seasonal workers, or who have already been admitted under the terms of the Directive. Also, it applies to those admitted for less than three months as well as those admitted for a longer period. For the former group, the Directive specifies that the EU’s borders and visas legislation continues to apply, and makes a number of cross-references to those measures. Furthermore, the Directive does not apply to those workers who are usually employed in other Member States, and who are ‘posted’ by their employers to work in a second Member State, to non-EU family members of EU citizens, and to non-EU citizens covered by an agreement which extends free movement rights (the EEA or EU/Swiss treaties).

A ‘seasonal worker’ is a worker who normally resides outside the EU, and who lives temporarily in the EU to ‘carry out an activity dependent on the passing of the seasons’, pursuant to a fixed-term contract concluded directly with an employer established in a Member State. The concept of a seasonal activity is in turn defined as an ‘activity that is tied to a certain time of the year by a recurring event or pattern of events linked to seasonal conditions during which required labour levels are significantly above those necessary for usually ongoing operations.’ Member States have to define what the relevant sectors are; the preamble refers to tourism, agriculture and horticulture as areas where seasonal work is usually needed.

Member States are free to set higher standards for certain issues (procedural safeguards, accommodation, workers’ rights and facilitation of complaints), but otherwise the Directive has set fully harmonised rules. So Member States can’t alter the substantive grounds for admission or the rules on duration of stay and re-entry.

The key criteria for admission are fully mandatory. Member States have to ensure that an application to enter as a seasonal worker is accompanied by: a valid work contract or binding job offer, setting out all of the details of the job; a valid travel document (possibly valid for the entire duration of the seasonal work); evidence of having, or having applied for, sickness insurance (unless such coverage comes with the work contract); and evidence of having accommodation, as defined in the Directive (see below). Member States have to check that the seasonal worker has sufficient resources not to have to use the social assistance system, cannot admit persons considered to pose a threat to public policy, public security or public health, and must check that the applicant does not pose a risk of illegal immigration and intends to leave the Member States’ territory when the authorization for seasonal work expires.

Applications have to be rejected whenever these conditions are not met, or where the documents presented with an application are ‘fraudulently acquired, or falsified, or tampered with.’ Member States also have to reject applications, ‘if appropriate’, where there has been a prior sanction against the employer for ‘undeclared work and/or illegal employment’, the employer is being wound up or has no economic activity, or the employer has been sanctioned for breach of the Directive.

Otherwise the grounds for refusal of an application are optional: a labour market preference test for home State citizens, other EU citizens or third-country nationals lawfully residing and forming part of the labour market; the application of Member States’ rules on volumes of admission of third-country nationals; or breaches of employment law by the employer, the use of seasonal work to replace a full-time job, or a prior breach of immigration law by the would-be worker. There are similar provisions on withdrawal of the authorisation to work as a seasonal worker, although it should be noted that Member States can withdraw authorization if the worker applies for international protection.

As for the admission procedure, Member States have to make information available on the conditions of entry and residence and rights, as well as the admission process. It’s up to Member States to decide whether the applicant or the employer makes the application, and the application process takes the form of a single application procedure for a combined work/residence status. Those applicants who fulfil the admission criteria and who do not fall foul of the grounds for refusal must be granted a permit or visa, in the format of the EU standard visa or residence permit.

There’s a total maximum limit of between five and nine months per calendar year of residence for a seasonal worker; they must then return to a third country. Since the Directive only regulates admission and stay of seasonal workers, it should follow that Member States still retain discretion to permit the worker to stay for longer on some other ground.

Within the maximum time limit, seasonal workers will be able, on one occasion, to change employers or to obtain an extension of their stay with their employer, if they still meet the criteria for admission, although the grounds for refusal will still apply. The preamble makes clear that this possibility is intended to avoid abuse, since the worker will not be tied to a single employer. Member States will have an option to allow further extensions or changes of employer. But again they can punish any worker who applies for international protection, by refusing to extend that worker’s stay.

Next, the Directive facilitates the re-entry of seasonal workers who were admitted at least once within the previous five years, if they complied with immigration law during their stay. This could include a simplified application process, an accelerated procedure, priority for previous seasonal workers, or the issue of several seasonal worker permits at the same time. The idea is to give an incentive to workers to comply with immigration law.

Member States have to impose sanctions against employers who have breached their obligations under the Directive, including a possible ban on employing seasonal workers. If seasonal workers’ permit to work is withdrawn because of the employer’s illegal behaviour, the employer must compensate the employees for all the work they have done or would have done. There are specific rules on the liability of sub-contractors.

Moving on to procedural safeguards, the Directive provides for: a notified decision in writing within ninety days of the application; special rules on the renewal of authorization; a chance to provide additional necessary information within a reasonable deadline; and a requirement that a rejection (or withdrawal or non-renewal of a permit) be issued in writing and open to a legal challenge, with information on the reasons for the decision, the redress available, and the relevant time-limits. Member States may charge fees for applications, if they are not disproportionate or excessive, and may require employers to pay the costs of workers’ travel and sickness insurance. Workers’ accommodation must ensure an ‘adequate’ standard of living, rents cannot be excessive, a contract for housing must be issued, and employers must ensure that accommodation meets health and safety standards.

As for the rights of seasonal workers, first of all they have the right to enter and stay on the territory of the relevant Member State, free access to the territory of that Member State, and the right to carry out the economic activity which they have been authorized to take up.  Furthermore, they have the right to equal treatment with nationals as regards terms of employment (including working conditions), freedom of association, back payments, social security, the transfer of pensions, access to goods and services available to the public (except housing), employment advice (on seasonal work), education, and recognition of diplomas, and tax benefits. However, equal treatment can be restricted as regards family benefits, unemployment benefits, education and tax benefits, and Member States are still free to withdraw or to refuse to renew the permit in accordance with the Directive. Finally, Member States must ensure monitoring, assessment, and inspections, and facilitate complaints workers or by third parties supporting or acting on their behalf.

Comments

According to its preamble, the intention of this Directive is to regulate the admission of seasonal workers with a view to enhancing the EU’s economic competitiveness, optimizing the link between migration and development, while guaranteeing decent working and living conditions for the workers, alongside incentives and safeguards to prevent overstaying or permanent stay. In principle it has achieved some of these goals, in particular by including a number of provisions to ensure equal treatment and decent accommodation for seasonal workers, to punish employers who mistreat workers or who breach immigration law, and to guarantee that the rules in question are enforced.

In fact the Directive was significantly improved on these points during the legislative process, in particular as regards monitoring and punishment of dodgy employers, accommodation standards, equal treatment (which was significantly extended in scope), employees’ costs, and remedies against employers (compare the final Directive to the original proposal). Doubtless this was largely due to the hard work of NGOs which raised these issues (see their joint statement here). Perhaps the EU should use this Directive as a template to try and address the exploitation of other vulnerable groups of migrant workers – for instance domestic workers, who are at particular risk of being enslaved or trafficked.

Having said that, there are some limits to what Member States were willing to agree. There are exceptions from the equal treatment rule, and some of the provisions on dodgy employers, as well as the ban on passing costs along to the workers, are optional, not mandatory. (See the comments on the final Directive by a group of NGOs here). The right to change employers is subject to conditions, and Member States might decided to allow only one such change. More broadly, while the provisions on enforcement are stronger than what Member States are usually willing to agree to in EU laws about migrant labour (or indeed EU employment law), it remains to be seen how much resources Member States are actually willing to expend on enforcement in practice.

Furthermore, since the Directive is limited in scope to those who are not yet on the territory, it can do nothing to alleviate the position of those who are present without authorization but who cannot be returned (ie who are in limbo) and it gives Member States express carte blanche to deprive asylum-seekers of even the modest income which they were previously earning as seasonal workers. Overall, while the Directive will hopefully have some effect achieving its objectives, it may be a classic example of what academics call ‘picking the low-hanging fruit’ – focusing on the easier issues and avoiding the harder ones.

*This post is based on my ongoing research for the 4^th edition of EU Justice and Home Affairs Law (forthcoming, OUP)

Photo credit: Globalpost.com

 

Barnard & Peers: chapter 26

EU Free Movement, Immigration and Asylum Law: 2014 in review

 

Steve Peers

Introduction

The issue of the free movement of EU citizens, as well as immigration and asylum from non-EU countries, has in recent years become one of the most contested issues in EU law. This blog post reviews the large number of legal developments over the last year in these two fields, assessing firstly the controversies over EU citizens’ free movement rights and secondly the tensions in EU immigration and asylum law between immigration control and human rights and between national and EU powers. It’s the second in a series of blog posts reviewing aspects of EU law in the last year; the first in the series (on criminal law) can be found here.

Free Movement Law

The case law of the CJEU on EU citizens’ free movement in 2014 was dominated by the themes of the limits to economic migration and equal treatment, in conjunction with EU citizens’ right to family reunion. On the first point, the most prominent judgment of 2014 was the Dano ruling (discussed here), in which the CJEU took a more stringent approach than usual in ruling that an EU citizen who had not worked or looked for work had no right to insist upon a social assistance benefit in the Member State that she had moved to.

As for the basic rules on qualification for EU free movement rights, the CJEU was not asked to rule in 2014 on the definition of EU citizenship. However, a pending case in the UK Supreme Court (discussed here) raises important questions about the extent of EU rules on the loss of national (and therefore EU) citizenship. The acquisition of EU citizenship also proved controversial, in the context of Malta’s sale of national (and EU) citizenship (discussed here).

Furthermore, EU free movement rights usually only apply to those who have moved between Member States. In two linked judgments this spring (discussed here), the CJEU clarified some important exceptions to that rule, as regards EU citizens who have moved to another country to be with their family members and returned, or who are cross-border workers or service providers. Next year, the CJEU will further clarify another important exception to that rule: the Ruiz Zambrano scenario when the non-EU parent of an EU citizen child is expelled to a third country, and the EU child has to follow, resulting in a de facto loss of their EU citizenship. The CS and Rendon Marin cases both ask the Court whether that case law applies to cases where the non-EU parent has been expelled following a criminal conviction.

For those EU citizens who do move between Member States, the CJEU delivered an important judgment in the case of Saint-Prix (discussed here), extending the concept of ‘former workers’ beyond the categories listed in the EU’s citizens Directive, to include also (under certain conditions) cases of pregnant women who gave up their jobs before the baby’s birth.

This judgment concerned the continued access to equal treatment in welfare benefits which former workers enjoy. Indeed, a new Directive on workers’ equal treatment (discussed here) was adopted in 2014, aiming to ensure the effective implementation of such equal treatment rights in practice. Next year, the CJEU will be called upon in the Alimanovic case to clarify whether the limits on EU citizens’ access to benefits set out in Dano also impact upon work-seekers, who have previously had limited access to benefits linked to labour market access. The Court will also soon rule on students’ access to benefits again in the case of Martens, where there has already been an Advocate-General’s opinion.

The issue of EU citizens’ right to family reunion was repeatedly addressed throughout the year, with the CJEU taking a consistently liberal view. It ruled for a generous interpretation of ‘dependent’ family members in Reyes (discussed here), and confirmed that separated spouses can still qualify for permanent resident status in Ogierakhi (discussed here). It also ruled in McCarthy (discussed here) that non-EU family members of EU citizens could not be subject to a ‘family permit’ requirement to visit the UK, but rather had to be exempt from the need to obtain a visa if they hold a residence card in the country which they live in. This judgment clarified that Member States could only claim that EU citizens were abusing free movement rights in individual cases. On this topic, the Commission produced a Handbook on the issue of 'marriages of convenience' (discussed here). Next year, the Court will be called upon to clarify the application of EU law to divorces (Singh), and for the first time, to same-sex relationships (Cocaj).

Finally, as regards the issue of derogations, the Court took a less generous view of cases involving criminal convictions, ruling in G and Onuekwere that time spent in prison in the host State did not count toward obtaining permanent residence status or the extra protection against expulsion that comes with ten years’ residence.  

Of course, the benefits of EU free movement law are not uncontested. Throughout the year, the debate on the merits of these rules in the UK intensified, to the point where Prime Minister David Cameron insisted that there had to be a major renegotiation of these rules as a key feature in the renegotiation of the UK’s membership of the EU. As I pointed out at the time (see discussion here), many of his demands will be difficult to agree, as they would require Treaty amendment.  

Immigration and Asylum law

There were important developments in all four areas of EU immigration and asylum law in 2014: visas and border controls; irregular migration; legal migration; and asylum.

Visa and borders

In the area of border controls, the EU adopted new legislation on maritime surveillance in the spring (discussed here), following a judgment of the CJEU invalidating the prior Council implementing measure on the same subject. This Regulation contains rules on search and rescue, as well as maritime surveillance and the accountability of Frontex, the EU’s border agency. But it does nothing to ensure the accountability of Member States for cases of ‘push-backs’ (illegal return to the country of origin from the high seas) where Frontex is not involved. Nor does it address illegal refusal of entry for asylum-seekers at the external land borders, as in the case of recent Spanish legislation applying to its North African enclaves.

To be fair, in recent years there have undoubtedly been far more cases of national operations which save migrants’ lives, in particular the Italian Mare Nostrum operation of 2013-14. However, that operation was wound down starting in autumn 2014, and replaced by a much more modest EU-led Operation Triton. It’s possible that more migrants will drown in the Mediterranean as a result.

The EU prefers to focus instead on ever-increasing controls at the external borders. But the negotiations on the EU’s smart borders proposals dragged on throughout 2014, with no agreement on the relevant rules likely before 2016. As for CJEU case law, the important Air Baltic judgment confirmed (following the 2013 judgment in Koushkaki, regarding the visa code) that EU rules on entry at the external borders are exhaustive, leaving no residual discretion to Member States. The Court’s other judgment in this field, on the EU’s passports regulation (the so-called Doktor U case), copied the EU legislature’s usual approach of prioritising border controls over individual rights (in this case, the right to present one’s own name in a passport).

In the area of visas, new legislation waived visa requirements for Moldova and then for a list of other countries (Peru, Ecuador, the United Arab Emirates, many tropical island States), subject (for most of these countries) to the negotiation of visa waiver treaties with the countries concerned. Treaties on visa facilitation with Armenia, Azerbaijan and Cape Verde entered into force, and the EU and Turkey began discussions on a visa waiver process.  Furthermore, the Commission proposed legislation to establish a new ‘touring visa’, and to overhaul the EU’s visa code, in order to encourage tourism and other legitimate travel (including new rules on Schengen visas for EU citizens’ non-EU family members, discussed here). Overall, the long-term trend of gradual liberalisation of the EU’s visa policy continued in 2014.

Irregular migration

The main focus in this field was the EU’s Returns Directive, with its detailed rules on many aspects of the expulsion process. Interestingly, while the CJEU’s case law prior to 2014 had focussed on the grounds for immigration detention (with the exception of the 2013 Filev and Osmani judgment, concerning entry bans), the case law this year was far more diverse. In the Mukarubega and Boujlida judgments (discussed here), the CJEU elaborated on the right to be heard in the administrative phase, before an expulsion order was issued to an irregular migrant.  The Court ruled that such a right existed even without an express mention in the Directive, although it then proceeded to limit the actual content of that right considerably.

Conversely, the Directive does contain some basic rules on judicial review of detention, and the CJEU interpreted these for the first time in the Mahdi judgment (discussed here). In particular, the CJEU enhanced judicial control over extension of the detention period, but did not clearly answer questions concerning review of the grounds for detention, notably the issue of whether there was a ‘risk of absconding’ purely because a person lacked an identity document.

The CJEU also gave its first ruling on judicial review of removal orders, in the Abdida case (discussed here). It insisted that legal challenges to removal had to have suspensive effect, where the irregular migrant alleged a serious risk to his or her health would result from return to the country of origin. Also, for the first time this judgment addressed the living standards of irregular migrants pending removal (in this case, Mr. Abdida was entitled to basic social assistance, despite the absence of rules on this issue in the Directive). It also confirmed that the list of issues which Member States had to take into account when applying the Directive, including ‘non-refoulement’ (among other grounds), could constitute a reason for non-removal, and took a liberal view of the interpretation of ‘non-refoulement’. In effect, the CJEU ruled that in some cases, the Directive could form the basis of a claim for a form of protection. But in the parallel case of M’Bodj (discussed below) it ruled that such cases did not fall within the scope of EU rules on asylum, and in the Mahdi judgment it ruled that in the ordinary case, irregular migrants who could not be removed gained no particular rights from the Returns Directive, in effect being left in limbo.

Next, the CJEU broke more important new ground in the cases of Bero and others (discussed here), for the first time ruling on detention conditions. It significantly limited the circumstances in which Member States could detain irregular migrants in prisons, rather than specialised detention centres.

Further important questions are pending before the CJEU. Next year, the Court will rule on the extent of Member States’ power to establish more favourable conditions for irregular migrants, by issuing them with fines instead of expelling them (Zaizoune).  It will also clarify the extent of the Member States’ obligation to give irregular migrants a period for voluntary departure (Zh and O). It will clarify whether the limits on the criminalisation of irregular migrants, as established by prior case law, also apply to those who stayed without authorisation (Celaj; the Court passed up a chance to answer this point in the 2014 ruling in Da Silva). And it will clarify the grounds for detention further, in particular interpreting when a ‘lack of cooperation’ by an irregular migrant can justify a longer period of detention (Mehrabipari).

The Returns Directive also received attention from the Commission and the European Migration Network in 2014. For its part, the Commission report (discussed here) offered some indications of how Member States applied the Directive in practice, although many details were missing.  There were further details of the practice regarding detention in particular in the Network report (discussed here). Overall, there were signs that Member States had increased their standards in some areas but lowered them in others. But the Commission’s failure to bring any infringement actions against Member States, or to issue guidance regarding the correct application of the Directive, was disappointing.

There were developments regarding other aspects of irregular migration in 2014. The Commission issued a report on national application of the Directive prohibiting employment of irregular migrants (discussed here), which indicated that Member States were applying that Directive’s coercive rules enthusiastically, but failing to fully apply its rules on protection of migrants’ rights. For its part, the CJEU confirmed that EU employment law applies to third-country nationals, including irregular migrants (see discussion here). Also, the Commission reported for a second time on the application of the EU rules on the immigration status of trafficking victims. Its report (discussed here) indicates that Member States are still unwilling to issue many residence permits to such victims, hindering the effective prosecution of cases.

Finally, the EU’s readmission treaties with Turkey, Armenia, Azerbaijan and Cape Verde also entered into force in 2014. This completes the network of EU readmission treaties to the east and south-east (with the exception of Belarus), and for the first time extends that network to an African state. The CJEU also strengthened the EU’s powers to include readmission clauses in development treaties (as discussed here), presaging more readmission rules in future.

Legal Migration

After four years’ discussion, the EU agreed new legislation on two aspects of labour migration in 2014, adopting legislation on seasonal workers and intra-corporate transferees (the latter directive is discussed here). There was also some progress on the 2013 proposal to amend the rules on students and researchers: the European Parliament adopted its position in the spring, and the Council position was agreed in December. Negotiations between the two branches of the EU legislature will get underway in 2015, but are likely to be difficult due to their radically different views (I’ll look at these positions in detail in a future blog post).

The Commission also reported for the first time on the EU’s flagship legislation on labour migration, the ‘Blue Card’ Directive. The report (discussed here) indicated that Member States were making great use of the many options in the Directive, diluting its intended purpose to serve as a means to attract highly-skilled migrants to settle in the EU. The new EU Commission intends to propose amendments to this legislation (discussed here) to ensure that it is better able to accomplish its goals.

The CJEU played a modest role in the development of EU law on legal migration in 2014, ruling on issues relating to family reunion, long-term residents and students. On family reunion, the CJEU delivered a very disappointing judgment in Noorzai (discussed here) on the calculation of waiting periods for spouses married before the age of 21, paying little account to its prior case law on the need to protect family life and interpret exceptions from the EU’s family reunion Directive narrowly. For the family members of Turkish workers, though, the Court insisted in Dogan (discussed here) on the application of a standstill clause, thereby exempting them from being subject to the more restrictive rules introduced in recent years – unless such rules could be justified on public policy grounds. Next year, the Court is due to rule on the key question of the limits to the imposition of integration conditions as a ground for family reunion (K and A case). The Commission issued some useful (if very belated) guidance on the application of the family reunion Directive (discussed here); it remains to be seen whether it takes any action to enforce the law.

In other areas, the CJEU ruled in Tahir that being a family member of a long-term resident wasn’t enough to become a long-term resident in one’s own right. The Court should rule next year on: when integration conditions can be imposed on long-term residents (P and S; the Advocate-General’s opinion is due in January already); on the scope of equal treatment for long-term residents (Van Hauthem), and on the extent of fees which Member States can charge to get such status (CGIL).

Next, the Court ruled that Member States have no residual discretion to create new conditions for the admission of non-EU students, in the Ben Alaya case (discussed here). This judgment arguably applies by analogy in other areas of EU immigration law too.

Finally, the Court repeatedly rejected arguments that the UK’s opt-out over immigration matters applied to social security matters, in particular as regards Switzerland (discussed here) and Turkey (I’ll come back to the latter case soon).

Asylum

The CJEU’s case law on the qualification directive (which governs the definition and content of refugee and subsidiary protection status) addressed a number of issues. In A, B and C (discussed here), it ruled out a variety of unpleasant methods of assessing the credibility of LGBTI asylum-seekers, while oddly leaving it open to Member States to ask questions based on stereotypes. In Diakite, it ruled that the EU rules on qualification for subsidiary protection, on grounds that there is a risk of a serious threat to a civilian in cases of ‘indiscriminate violence in situations of international or internal armed conflict’, should not be interpreted consistently with the similar provisions of international humanitarian law. It also clarified another ground for subsidiary protection in M’Bodj (discussed here), ruling that protection on grounds of facing ‘torture or other inhuman or degrading treatment’ did not apply where the person concerned would simply not receive medical treatment in his or her country of origin. Furthermore, Member States’ power to set ‘more favourable standards’ did not extend to permit them to give subsidiary protection as an option to such people. EU law could only apply in the context of the Returns Directive (see the Abdida case, discussed above). Early next year, the CJEU should give important rulings in the cases of T (regarding terrorism) and Shepherd (regarding a US citizen claiming asylum due to conscientious objection to the Iraq war); there is an Advocate-General’s opinion in both cases already.

As for the reception conditions Directive, the CJEU delivered a liberal ruling in Saciri (discussed here), affirming asylum-seekers’ right to family housing on the basis of a very generous interpretation of the Directive. In the area of asylum procedures, the Court clarified the relationship between refugee and subsidiary protection status in the MM case (discussed here), and took a narrow view of the application of data protection rules to the asylum process in Y and S (discussed here).

Finally, the CJEU did not rule on the Dublin system on responsibility for asylum claims in 2014, except to rule in the Qurbani case (discussed here) that it did not have jurisdiction to interpret Article 31 of the UN Refugee (Geneva) Convention on this context. But its approach was implicitly criticised by the European Court of Human Rights (ECtHR) in the Tarakhel ruling (discussed here). The CJEU quickly reacted with its quite bonkers judgment on the EU’s accession to the ECHR (discussed here), insisting that its peculiar notion of naïve mutual trust in each Member States’ asylum system should prevail over any possibility that the other Court might find a breach of human rights in individual cases. The Dublin system was also the focus of the sole legislative proposal on asylum in 2014 (discussed here), which sought to clarify the rules on unaccompanied minors.

Conclusions

In the area of free movement of EU citizens, the CJEU has made significant gestures to its critics this year, as regards the issue of ‘benefit tourism’ and on the limited legal rights of those who have been convicted of crimes. But it continues to take a robust view of equal treatment rights and of the definition and rights of EU citizens’ third-country family members, even in cases outside the traditional rules. If David Cameron is in a position after next year’s UK general election to insist upon renegotiation of the UK’s EU membership, this will be one of the key political issues facing the EU.

In the area of immigration and asylum, the tension between immigration control and human rights can be seen particularly in the EU’s continued strengthening of its border controls despite the large loss of life in the Mediterranean. It’s often suggested that a more developed EU external policy on asylum could reduce the number of lives lost, but there are many legal and political issues holding up such a resolution. This autumn, I attended a seminar on these issues: there was a consensus among the high-level government experts that an effective policy was simply not politically realistic.

Once non-EU citizens do reach the EU’s territory, however, the CJEU’s relatively liberal interpretation of the legislation on legal migration, asylum and even the Returns Directive means that they enjoy more rights than the initial critics of much of this legislation thought would be likely. Interestingly, the EU’s traditional economic objectives are being increasingly used as justification for the adoption of more liberal rules on visas and labour migration, not only by the EU legislature but also (in the Ben Alaya judgment) by the CJEU.

The Court’s rulings this year have confirmed that EU law constrains Member States’ discretion in this field significantly, not only establishing the exhaustive nature of the EU’s rules on border control on admission of students, but also setting a ceiling as regards the definition of refugee and subsidiary protection status and developing many new rules in the context of the Returns Directive. But there is an interesting new development: the CJEU has opened up a second front, defending EU rules also from any significant influence by international law. This is evident in several areas: the decoupling of the EU’s subsidiary protection rules from international humanitarian law; the ‘channelling’ of the ECtHR jurisprudence on medical cases into the Returns Directive instead of asylum law; the continued implicit snub to international soft law (this year, as regards the UNCHR guidelines on credibility assessment in LBGTI cases); and most obviously the CJEU’s barely suppressed rage at the ECtHR’s mild criticism of the dysfunctional Dublin regime. Time will tell what the effects of the Court’s hubris will be.

 

Barnard & Peers: chapter 13, chapter 26

 

 

The new Directive on intra-corporate transferees: Will it enhance protection of third-country nationals and ensure EU competitiveness?

Lucia Brieskova, PhD candidate at Oxford Brookes University

This post sets the scene for the new EU directive in the area of legal labour (economic) migration - the Intra-Corporate Transfers Directive (ICTD) - in three sections: a) it explains why this Directive was introduced and its relationship with the other EU directives in the area of economic migration; b) it outlines the main novelties brought about by this Directive; and c) it highlights some of the potential issues. These potential issues will be further developed and analysed in the subsequent posts.

A.      BACKGROUND

The EU Commission introduced the Proposal for ICTD in July 2010 as a part of a comprehensive package of different measures, which were proposed in the Policy Plan on Legal Migration of 2005, the European Pact on Immigration and Asylum, (adopted in 2008) and further endorsed by the Stockholm Programme (adopted by the EU Council in December 2009), which called for the adoption of an overall European policy on migration. In addition, the Europe 2020 strategy contemplated that a well-structured legal immigration policy will have a role to play not only in filling shortages of the labour markets and enhancing the competitiveness of EU but also in helping to face demographic challenges which most of the Member States face or will face in the near future.

To be more specific, the 2005 Policy Plan on Legal Migration sketched out the EU Commission's vision on how a common policy on economic migration should be further developed by scheduling the adoption of several legislative proposals (directives) on economic migration between 2007 and 2009. As a result, the ICTD was adopted as a new legislative instrument of the EU common policy on legal migration. It complements three already existing Directives, also introduced as a result of the 2005 Policy Plan on Legal Migration:  the 2009 EU Blue Card Directive on highly qualified workers setting out the admission criteria for and the rights of highly qualified third country national (TCN) workers (discussed here), the 2011 Single Permit Directive on TCN workers legally residing in an EU Member States; and the 2014 Seasonal Workers Directive.

The EU Commission, backed up by some Member States in the Council, disagreed with the European Parliament as regards some issues, for example, the right of equal treatment of ICTs and the rights of their family members.  After lengthy negotiations (4 years), the text of the ICTD is a compromise between the EU Council and EU Parliament, where EU Parliament accepted a number of EU Council proposals, for instance in relation to the equality of treatment of ICTs. The EU Council adopted the ICTD on 13 May 2014, following a positive vote in the EU Parliament in April. The ICTD was published in the Official Journal of the European Union on 27 May 2014 and entered into force on 28 May 2014. Now the 25 participating EU Member States have 30 months to transpose this Directive (by 29 November 2016). As with other EU policies on legal migration of third-country nationals, the UK, Denmark and Ireland are opting out of this Directive.

It remains to be seen how the Member States will implement this Directive into their national legal systems and whether this Directive and its national implementation will contribute to or hinder the protection of TCNs within the EU and whether it will contribute to the enhancement of the EU’s competitiveness.

B.      NOVELTIES

So what is new in the EU legislation relating to the area of economic migration after the introduction of the ICTD? Firstly, it covers a group of TCN migrant workers not yet protected by any of the existing EU economic migration directives; secondly it provides for “mixed” set of rules as regards the equality of rights of ICTs; thirdly it creates a unique intra-EU mobility scheme for ICTs; and lastly it offers favourable rights for family members.

Aims, Scope & Eligibility

The aims of the ICTD are threefold: a) it should make it easier and quicker for multinational companies to temporarily assign highly skilled TCNs to subsidiaries situated in the Member States; b) it should facilitate intra-corporate transferees’ (ICTs) mobility between Member States during their transfer; c) it lays down a common set of rights for ICTs when working in the EU in order to avoid their exploitation and distortion of competition.

The ICTD will facilitate intra-corporate transfers of managers, specialists and trainee employees to the EU by setting up transparent and harmonised conditions for admission, residence and work. To be eligible for an intra-corporate transferee permit, managers and specialists must have worked at least 3 up to 12 uninterrupted months for the multinational company immediately preceding their transfer. For trainee employees this period is 3 to 6 uninterrupted months. Member States retain the right to set the volumes of admission of ICTs who apply to be admitted to their territory. The permit will be valid for a maximum of 3 years in the case of managers and specialists and 1 year for trainee employees.

The Directive also aims to have speedy application procedures with easily available information about the new ICT permit and fast-track application processes, with only complex cases taking the maximum 90 days allowed for review.

Equal Treatment Rights

The ICTD provides for equality of treatment rights with nationals of Member States as regards remuneration. The rationale for granting equal treatment with nationals to ICTS as regards remuneration is the aim of ensuring that companies established in a third country will not be able to benefit from lower labour standards, thereby distorting competition. Therefore, Member States must request, as a ground for admission, that the remuneration granted to the ICTs is not less favourable than the remuneration granted to nationals occupying comparable positions.

Under the provisions of the ICTD, the ICTs are to be treated on equal footing with another group of migrant workers – posted workers – as regards the terms and conditions of employment other than remuneration (such as maximum work periods or safety at work). This means that these terms and conditions of employment in the Member State to which the ICT will be transferred will be governed by the laws of his or her country of origin (the sending third country). According to the ICTD the reason for this is that the ICTD should not give undertakings established in a sending third country any more favourable treatment than undertakings established in an EU Member State, in line with Article 1(4) of the Posted Workers Directive (96/71/EC).

The ICTD also sets out a clear list of rights for ICTs in relation to freedom of affiliation to a trade union, recognition of diplomas, and access to public goods and services, except housing.

Lastly, equal treatment between ICTs and nationals applies to branches of social security, in practice, in particular to benefits related to sickness, invalidity and old-age. However, EU Member States can make an exemption where the national law or a bilateral agreement with the host Member State establishes that the laws of the country of origin of the ICT will apply. Also, Member States may decide not to grant family benefits to ICTs who stay less than 9 months in the EU.

Intra-EU Mobility Scheme

The intra-EU mobility provisions in the ICTD mean a significant and unique development in comparison with national systems which do not permit ICTs to work in subsidiaries established in another Member State. This is the first work permit that will allow TCNs, under certain conditions, to work in several Member States for entities belonging to the same group of undertakings. Responding to the strong mobility needs of this type of TCN migrant workers, ICTs are not required to obtain the Schengen visas. Subject to a number of conditions, they can enter, stay and work in the Member States other than the one to which they were initially admitted. The ICTD distinguishes between short-term (less than 90 days in any 180 day period) and long-term (more than 90 days) mobility.

Family Members’ Rights

During the negotiations the EU Parliament succeeded in including crucial provisions in the ICTD as regards the rights of family members of ICTs.  This was advocated for with a view to removing an important obstacle to accept an assignment in the EU, meaning that the family members of ICTs will be able to accompany the ICTs at the start of their assignment, if they apply at the same time. In addition, the family members are also entitled to be employed or self-employed in the host Member State throughout the duration of the ICT’s transfer.

C.      POTENTIAL ISSUES

It remains to be seen how Member States will implement the ICTD in their national laws in the next two years given that the ICTD only sets minimum standards and includes a number of optional (“may”) clauses. For some Member States, the implementation process will mean modifying visa procedures, whereas others Member States will have to construct an intra-corporate transfer process from scratch. The challenge will be making sure that each Member State agrees to very similar definitions and terms for visas, so that there is not a wide variation among them.

Moreover, one issue of particular concern is intra-EU mobility for ICTs, where the ICTD includes a number of optional requirements (“may” clauses) that Member States may impose and thus also different variants of the scheme for Member States to adopt, which could render the scheme rather complicated. Furthermore, the conditions for assignments lasting longer than 90 days are much stricter than those for short-term transfers lasting less than three months.

In addition, it would appear that the ICTD is likely to impede the wider principle of equal treatment that must be at the core of all EU legislation in the field of migration – TCNs should be treated on equal footing with nationals of Member States. The ICTD contains provisions, advocated for by the EU Council and opposed by the EU Parliament, by which TCN workers employed in the EU in the framework of the intra-corporate transfers would enjoy a protection of rights granted to posted workers. Thus, the equal treatment will be limited to the core provisions of the contentious Posted Workers Directive (PWD). This means that the legislation of the sending third country will be applicable rather than the legislation of the host EU Member State. It was reasoned that ICTs should not be treated more favourably than posted workers by granting ICTs rights equal to those of EU nationals, which would suggest that the ICTD assumes that intra-corporate transfers and postings of workers are of the same or similar character.

However, the ICTD and PWD belong to different legislative spheres. The postings of workers function within the EU single market in support of the provision of services, whereas the intra-corporate transfers are aimed at allowing multinational companies to efficiently utilise their human capital. It is possible to argue that these provisions of ICTD are likely to lead to the bypassing of the EU labour legislation and national labour protection, which was the case with the PWD (see the Laval judgment). Thus, the equal treatment of ICTs could be endangered as potentially laws from any sending third country may be applicable to their situation. Consequently, TCNs could be afforded less protection and be subjected to the different forms of exploitation.

Barnard & Peers: chapter 26