Steve Peers,
Professor of Law, University of Essex
One sign of the difficulty in
resolving differences of opinion within the EU on immigration and asylum issues
(other than visas and border controls) is that no new legislation on these
issues has been agreed since 2016 (that was the revised Directive on admission
of students, researchers and trainees, discussed here).
This five-year drought may soon to come to an end, with the recent agreement
on revision of the Blue Card Directive on highly-qualified non-EU workers. (Note
that the recent deal must still be formally approved by the Council and the
European Parliament. This blog post is based on the full legal text of the agreed
revised Directive. UPDATES, May 21 2021: the full text of the agreed Directive has been made public by Statewatch. September 21 2021: the European Parliament plenary has approved the revised law. October 28 2021: the revised law has been formally adopted by the Council and published in the EU Official Journal. Member States will have to transpose the new law by 18 November 2023).
Background
The existing Blue
Card Directive was adopted in 2009. While it aimed to encourage admission
of highly- qualified non-EU migrants, a report
in 2014 (discussed here;
the summary below draws on this earlier blog post) indicated that it had modest
impact. Therefore the previous Commission tabled a proposal
to replace it in 2016 (discussed here).
The Council agreed its negotiating
position in July 2017, as did the European
Parliament. However, negotiations between the two institutions were
difficult (see reports of December
2017, February
2018 and December
2018), and ended at the start of 2019. However, they were resumed in autumn
2020, leading ultimately to the recent agreement.
The UK, Ireland and Denmark opted
out of the 2009 Directive and the 2016 proposal. However, having since left the
EU, the current Directive is, and the revised Directive will be, relevant to UK
citizens seeking to move to the EU after the end of the transition period in
the withdrawal agreement, ie from the start of 2021.
The current law
What are the main features of the
current law? First of all, it co-exists with national law on admission of
highly-qualified workers. Next, Member States or the EU can enter into more
favourable treaties with non-EU countries. Other EU law can set higher
standards than the Directive, whereas Member States can set higher standards
for some of its provisions.
The conditions for admission
include a salary threshold of at least 1.5 times the national average. As an
option, Member States can reduce this to 1.2 times the average for some jobs
(managers and professionals). Highly qualified employment is defined as having
a higher education qualification of at least three years. As an option, Member
States may accept admission of those with five years’ professional experience
in a field. They must have a work contract or job offer valid for at least one
year. Member States can determine a quota of the overall numbers to be admitted
to their territory.
A Blue Card must be valid for a
period of between one and four years. Member States may choose to apply a
labour market preference for EU and resident non-EU citizens (including
long-term resident non-EU citizens in another Member State) upon first entry
and during the first two years of residence. They may also choose to reject an
application for ethical reasons (ie, trying to avoid a ‘brain drain’ from
developing countries).
Applications can be made from
outside the country or when legally resident, although Member States may opt to
be more generous (considering applications also from those legally present), or less generous (requiring
applications from outside the country, if national law provided for this when
the Directive was adopted). Member States have to decide on an application
within 90 days, and inform the applicant as to the reasons for any rejection.
Refusals, non-renewals or withdrawals of Blue Cards must be open to legal
challenge.
As for the rights of Blue Card
holders, they are restricted to employment meeting the criteria for initial
admission for two years. After then, Member States may treat them equally with nationals as regards highly-skilled
employment. After two years, changes in employment are subject to prior
authorisation of the authorities.
Blue Card holders can stay if they
become unemployed and look for a replacement job – unless this happens multiple
times or the unemployment lasts for more than three months. They have equal
treatment with nationals as regards working conditions, education, social
security and recognition of diplomas (except for study loans or grants and
housing).
There are also rights for family
members, derogating from some limits on family reunion in the relevant EU Directive.
Blue Card holders do not need a minimum residence period or a prospect of
long-term residence for their family member to join them. Integration measures
can only apply after entry, and there is a shorter deadline for issuing
permits.
Furthermore, there are
derogations from the EU law on long-term
resident (LTR) non-EU citizens. Blue Card holders can cumulate periods
spent in multiple Member States, subject to certain conditions, to qualify for
long-term residence status. There are longer permitted absences from the
territory. And even before qualifying
for LTR status, which takes five years, Blue Card holders can move to other Member
States after only 18 months, subject to still carrying out highly-qualified
employment (among other conditions).
The 2014 report
According to the 2014 report on
the application of the Directive, the numbers admitted with a Blue Card were
modest (15,000 in 2013). Eight Member States had set a quota for the number of
admissions. Six Member States opted to reject applications in national law on ‘brain
drain’ grounds, although none had actually rejected an application on these
grounds. However, only two Member States had set higher salary thresholds than
the usual rule (1.5 times the average salary) set in the Directive. Nine Member
States legislated for the option to have a lower salary threshold for some
workers, although only four made active use of it.
Most Member States applied some
kind of labour market test before issuing a Blue Card. One Member State had set
an overall time limit of four years for Blue Card holders, even though there is
no explicit rule in the Directive on this point (as compared to the Directives
on seasonal
workers – discussed here
– and intra-corporate
transferees – discussed here).
Fifteen Member States had
implemented the option to withdraw the Blue Card if the holder needs social
assistance, and two Member States applied a pre-existing national rule
requiring applicants to apply from outside the country of origin. About half
the Member States required a 90-day wait for a decision on the application, and
just under half set shorter deadlines. Nine Member States did not grant equal
treatment in employment after a two-year waiting period, and most required
authorisation in the event of a change in employer within that period. A number
of Member States did not grant equal treatment in education, and about half of
the Member States limited the application of a rule permitting longer absences
from EU territory as regards acquiring long-term resident status.
On the other hand, some Member
States exercised the options to apply more favourable rules. Twelve Member
States opted to treat experience as equivalent to qualifications. Nine Member
States took the option to set a lower salary threshold (1.2 times the average
salary) for professions in shortage occupations. Most Member States allowed
applicants to apply for a Blue Card not just if they were legally resident, but
also if they were legally present. Several Member States had more
favourable standards as regards equal treatment.
The Commission’s original impact
assessment for the 2009 version of the Directive (see my discussion in
the Commentary
on EU Immigration and Asylum Law) suggested that the EU is
comparatively weak at attracting highly-skilled migrants, in part due to its
immigration regime. The main features of national immigration rules which
attracted migrants were routes to permanent residence, geographical mobility,
and the publicity effect of the schemes. Academic analysis also suggested that
liberal rules on family reunion and job mobility were significant.
However, the main elements of the
original Blue Card proposal which aimed to attract highly-skilled migrants were
dropped or watered down: a short decision-making deadline; a derogation from
the salary threshold for younger workers; and the rules on in-country
applications, job mobility and validity of permits. The evidence as regards
implementation of the Directive suggested that on most of these issues (except
for in-country applications), most Member States apply the options in the Blue
Card Directive in such a way as to deter applications. Moreover, the mere
existence of competing national schemes diluted the publicity effect of the
Blue Card system.
Impact assessment
The impact
assessment for the 2016 proposal built upon the 2014 report and the impact
assessment for the original Directive, noting again that the EU retained fewer
highly-skilled workers than its competitors, and arguing again that there was a
demographic and economic argument to attract and retain higher numbers. 38,000
residence permits for highly-skilled workers had been issued in 2014 – although
that included not only Blue Cards but also national permits. These numbers had
been increasing (23,000 in 2012; 34,000 in 2013) but still fell short of the
numbers desired on economic grounds. (The national/Blue Card breakdown for
those years was: national permits 19 755 in 2012, 21 940 in 2013, and 24 922 in
2014; EU Blue Cards 3 664 in 2012, 12 964 in 2013, and 13 852 in 2014).
In the view of the impact
assessment, parallel national schemes were ‘neither effective nor efficient’,
with the ‘complexity of the current regulatory framework for recruiting’
highly-skilled workers creating ‘costs and administrative burden’. National
schemes, by definition, could not offer the benefits of labour mobility between
Member States, but the impact of the mobility rules in the 2009 Directive was
‘very limited’.
It was also desirable to increase
retention of students graduating in the EU – although the revised students’
Directive already aims to do that. The issue here was that new entrants to the
workforce tend to obtain lower salaries than older workers, and so might fall
short of the salary thresholds in the 2009 Directive. Also, the EU system did
not include specific rules on highly-skilled migrants starting new businesses,
which was a particular feature of the ICT industry. Applying the Blue Card
system to refugees and others with international protection could address the
problem that some of them are under-employed (ie taking jobs below their skill
or education level).
In particular, workers were
deterred by: the salary threshold; labour market restrictions; limited
possibility of mobility; processing times; delayed admission of family members;
the requirement of a one-year work contract (which is more restrictive than
competing national laws); lack of familiarity with Blue Cards; and exclusion of
entrepreneurs, service providers, and those with international protection.
Ultimately the Commission’s
proposal aimed to address many of these points. However, it did not include
service providers, despite raising the issue, due to a lack of evidence for a
change in the law. It also ruled out the more radical step of moving to an
‘expression of interest’ system.
(See also the executive
summary of the impact assessment, and its Annexes).
The revised Directive
The revised Directive, if officially
adopted, will expand the scope of the Directive to include refugees and other
beneficiaries of international protection, as well as non-EU family members of
EU citizens. The Commission also proposed that it should also apply to
non-graduates who had three years or more of equivalent professional
experience. However, Member States thought this went too far, and the final
text is a compromise: it will extend only to non-graduates with three years’
equivalent experience in the high-tech
field. For other fields, Member States will have an option to apply the
Directive to non-graduates with five
years’ equivalent experience.
Next, the Commission had proposed
to eliminate the possibility of parallel national schemes for highly qualified
workers. However, the Council insisted on maintaining the possibility of such
schemes, so the final Directive retains this option. As a compromise, there are
new provisions saying that any more favourable rules relating to national
schemes must also apply to Blue Card applicants or holders, as regards
procedural rights, application fees, fast-track applications for designated
employers, labour market access, equal treatment, and family reunion. On the
other hand, Member States are not required to extend national rules on substantive
conditions for admission to Blue Card applicants or holders.
Similarly, the Commission had proposed
that Member States could only retain pre-existing treaties on highly qualified
labour migration with non-EU countries, but not sign new ones – but the agreed
Directive reverts to the status quo
that new treaties are possible.
As for conditions of admission,
the period of any contract or job offer necessary to apply for a Blue Card will
be cut from one year to six months. The salary threshold will be set between
the average salary and 1.6 times the average salary (the Commission had
proposed 1 to 1.4 times the average salary). This threshold may be cut by 20% for recent graduates
(within the last three years) and (as in the current law) for professionals and
managers, but with a floor (added in the final directive): the reduced
threshold cannot go below the average salary. (The Commission had proposed that
both of these reductions would be mandatory).
A labour market preference test can
still be applied on entry. The Commission’s proposal to limit its use was
rejected (the proposal had suggested that it could only be imposed where the
‘labour market situation undergoes serious disturbances such as a high level of
unemployment in a given occupation or sector, which may be limited to a
particular part of their territory’. Also the exception would only have applied
in principle for 12 months, subject to 12-month extensions and notification of
the Commission). Quotas on entry can still be applied too (the Commission had
not proposed to abolish them as regards the first Member State, as the Treaties
guarantee Member States the right to set them).
The Commission had proposed to
remove recourse to social assistance as a trigger to withdraw Blue Card status,
but the final Directive retains it. At the behest of the European Parliament,
it will be harder to withdraw a Blue Card from a holder due to unemployment.
Blue Cards will now be valid for a
minimum of two years (in place of one to four years in the 2009 Directive).
Applications for a Blue Card will now be possible whenever the applicant is legally
resident; the limited derogation allowing Member States to ban in-country
applications will be deleted. It will remain an option to allow applications
from those who are legally present
(the Commission had proposed to make this mandatory).
The time period to reply to
applications will remain at 90 days (the Commission had proposed to cut it to
60 days). A new rule provides for decisions on applications to be fast tracked
to 30 days if the employer is registered in a special scheme. There would be an
express right to apply for renewal, a judicial remedy against refusals, et al,
and a requirement that fees must be proportionate.
Next, labour market access for
Blue Card holders will be wider. In place of the current rules (restriction to
highly qualified employment for two years, changes of job subject to
authorisation during that period, an option to allow equal treatment in labour
market access after two years), Member States may apply a labour market preference test, and approval to change
jobs linked to that test, if Blue Card holders seek to change jobs within the first year. After that they may only be
required to inform Member States about a change of job. (This is a compromise
compared to the Commission proposal, which had suggested that Member States
would have to give Blue Card holders full access to highly skilled employment
from the outset, with no requirement for approval to change jobs from
authorities and no labour market preference test).
The revised Directive will provide
that Member States now have an option to allow Blue Card holders to undertake
self-employment in parallel with their employment – but they can set conditions
and limits, and self-employed activity must be subsidiary. The Commission’s
proposal here was more ambitious.
The waiting period for family
reunion will be cut to nothing if applications for family members were
submitted at the same time as the Blue Card application. If they were not, it will
be cut to 90 days, instead of six months (the Commission had proposed 60 days).
Family members will be able to take up any employment or self-employment.
Member States will have to cumulate periods spent in different Member States
towards the autonomous residence permit which a family member can obtain after
five years (currently this is an option), although as a compromise compared to
the Commission proposal, Member States may insist that the last two years of
this period was spent on their territory.
There will also be new benefits
as regards obtaining LTR status. The Commission’s proposal to cut the usual
five-year wait to three years (subject to conditions in the event of unemployment)
was rejected. However, it will be easier to accumulate five years’ residence in
multiple Member States: Member States will have to cumulate not only residence
as a Blue Card holder (as the current law provides), but also residence as a
researcher, a student (subject to limits), a highly-qualified worker under
national law, or a beneficiary of international protection to this end. (This
is less liberal than the Commission proposal, which would have required
cumulation of any periods spent as a legal resident on any basis in different
Member States). The current requirement that the last two years must have been
spent in the Member State where the application was made will be retained. On
the other hand, the current option for Member States to limit access to LTR
status after extended periods of absence will be dropped. (In other words,
extended periods of absence for any
reason will be able to count towards obtaining LTR status).
Before obtaining LTR status, the
mobility provisions will be improved too. Blue Card holders will be able to carry
out business activities in another Member State for 90 out of 180 days without
a need for authorisation, although if they are travelling from a non-Schengen
to a Schengen State for this purpose the latter may ask for evidence.
They will also be able to move
fully to another Member State after 12 months, rather than 18. However, the
final Directive did not follow the Commission’s proposal to simplify this
process even more radically – namely, to allow a Blue Card holder to start work
in the second Member State as soon as they had submitted the application.
Rather, the final Directive provides that if the Blue Card holder moves from a
non-Schengen to a Schengen State, the latter can ask for evidence at the
border. Member States would will to decide on the applications within 30 days,
but they can refuse if the Blue Card holder had been abusing the system. There will
be further simplifications for family members joining them.
Finally, Member States will have
two years to give effect to the revised law. The deadline to apply it will
therefore likely fall in summer or autumn 2023.
Comments
Whether or not the EU should prioritise the admission of
highly qualified non-EU workers and seek to encourage their admission, it is a
long-established policy. The following comments focus on how much the revised
law is likely to contribute to that objective.
Although many of the Commission’s
planned suggestions for reform of the Blue Card system were not accepted in
full, most were accepted in part, on the basis of some form of compromise. First
of all, while its mandatory extension of scope to graduates of the ‘University
of Life’ will be limited to the computing industry, Member States will still
have the option to extend it to other non-graduates with sufficient equivalent
experience if they wish. Secondly, its extension to refugees and persons with
subsidiary protection could be particularly useful to those who are highly
qualified.
Thirdly, although parallel
national schemes will still exist, their comparative attraction as compared to
the Blue Card system will be reduced, since they will be unable to provide more
favourable terms than the Blue Card law in many respects. Conversely, it will
still be possible for Member States’ systems to compete with the Blue Card as regards
substantive terms of admission, although even on this front the liberalisation
of the Blue Card admission rules (extension of scope, shorter minimum contract
term, labour market preference test, longer minimum validity, salary thresholds)
may mean that the gap between national and Blue Card systems is reduced. And, of course, the Blue Card system offers
the benefit of mobility between Member States (itself improved by this
Directive), which national schemes cannot.
However, note that Member States
can still offer more favourable terms for those applying to national schemes
for highly qualified workers as regards access to national systems of long-term residence (which can also continue to
exist in parallel to the EU LTR system, according to the LTR Directive). On
this point, the rejection of the Commission’s proposal to cut the waiting
period for EU LTR status for Blue Card holders is significant, because it means
that it is easier for national schemes to attract highly qualified workers by remaining
more generous on this issue. The substance
of national LTR status might be more generous too (more equal treatment than EU
law on EU LTR status requires, for instance). The negotiators of the revised
Blue Card law may have missed an opportunity to address this issue by also simplifying
transfer between the parallel national
and EU systems, or by adopting rules on holding both national and EU status at the same time.
A proposal to amend the EU LTR
law is due later this year, and possibly the revised Blue Card rules on the
relationship between parallel national and EU systems could be a template for
dealing with that issue as regards LTR status too. Again, a simplified transfer
between national and EU systems, or rules on holding both EU and national status simultaneously, ought to be worth considering.
There is a risk that the rules on
equality between EU and national schemes results in levelling down – ie, Member States simply removing
more favourable features of national systems, resulting in the EU/national
systems as a whole being less attractive to non-EU citizens, thus conflicting
with the objective of the Directive of encouraging more highly qualified
migration. On the other hand, the new Directive could have the reverse effect:
Member States particularly keen to attract highly qualified workers may improve national rules in areas where equal
treatment is not required (for instance, salary thresholds or long-term
residence status), resulting indirectly in supporting
the new law’s objectives.
Fourthly, as regards admission
rules, the reduction in the length of required contract may have a positive
effect in achieving the new law’s objectives. On the salary threshold though,
there may in practice be no change: since most Member States apply the 1.5 x
average salary threshold already, they are not required to change it to meet
the new law’s requirement of a threshold between 1 and 1.6 times national average
salary. (The Commission proposal of 1 to 1.4 times national average would, on
the other hand, necessarily have compelled every Member State to reduce their
threshold). Nor will there necessarily be a change regarding the reduction in
the salary threshold for shortage occupations and recent graduates – given that
these reductions are optional. As noted already, Member States which are
particularly keen to retain national schemes for admission of highly qualified
workers may wish to retain a gap between the salary thresholds in EU and
national schemes – in which case, they may be reluctant to use the opportunity to
reduce the salary threshold for the Blue Card scheme, or to use the relevant
optional derogations to reduce the threshold for some groups of workers. Again,
though, they may choose rather to reduce the salary threshold for national schemes to retain their comparative
attractiveness – thus attracting more highly qualified workers overall, albeit
not as Blue Card holders.
Next, the continuation of labour market
tests at entry and during the first year may still limit the numbers coming, although
the new law definitely liberalises labour market access compared to the 2009
Directive (not much so as regards self-employment though). Allowing
applications in-country for all Member States will have a modest effect, since
most allowed it anyway. Similarly, few Member States banned applications for
renewal; and it is arguable that the rules in the new Directive on renewal,
judicial remedies and fees simply confirm the correct interpretation of the
existing Directive.
Simplified rules on admission of
family members, and their access to employment, may encourage applications from
those with family members, particularly those whose spouses wish to work. While
the changes on LTR status are modest, and do not affect parallel national rules on LTR status which may
be more decisive in influencing applicants, they will be useful for those who
have held (or still hold) another status.
It remains to be seen whether the
new law achieves its desired objectives. So far, the admission of highly
qualified migrants has not been enough to cause a brain drain in non-EU
countries, or to contribute much towards the demographic issues the Commission
is concerned about. Even the most paranoid ‘Great Replacement’ folks should find
it hard to panic about increases of less than one ten-thousandth of the EU
population.
It seems likely that the revised
law will increase the number of Blue Card holders, as all the amendments push
in that direction; none of them make Blue Cards less attractive or harder to
get. The departure of the UK from the EU might increase the number of Blue Card
applications even if the law had not been amended (although the numbers of UK citizens moving to the EU may nevertheless fall as compared to when free movement applied). Having said that, the new law
only indirectly impacts national schemes for admission of highly qualified
workers, which (for the reasons discussed above) might still be able to
flourish. Also, the impact of a change in migration law can never cancel out other
factors influencing migration flows – which include the response of competing
non-EU countries (which might respond to any increased appeal of the Blue Card
by making their own schemes more attractive), changes in the EU economy (as
well as the economies of competing destinations, and source countries), and changes
in the educational attainments of EU residents. And even if the numbers of
highly qualified migrants coming to the EU (under either EU or national schemes) don’t increase
much or even decline, they might nevertheless be higher as a result of the new
law than they would have been without it.
Barnard & Peers: chapter 26
JHA4: chapter I:6
Photo credit: Kerstin Göpfrich,
via Wikimedia
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