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

 

Steve Peers, Professor of Law, University of Essex

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

Background

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

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

The current law

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

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

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

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

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

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

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

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

The 2014 report

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

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

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

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

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

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

Impact assessment

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

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

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

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

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

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

The revised Directive

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Comments

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

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

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

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

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

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

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

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

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

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

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

Barnard & Peers: chapter 26

JHA4: chapter I:6

Photo credit: Kerstin Göpfrich, via Wikimedia Commons

Beyond Blue Passports: UK/EU immigration after Brexit

Professor Steve Peers, University of Essex

In the last few days, there has been much debate about the UK government’s intention to ‘return’ to blue British passports after Brexit. It’s unfortunate that there have been false statements on both sides of the argument – that the change in passports will cost extra money (the contract was due for renewal anyway) and that the EU forced the UK to apply the burgundy colour (there’s only a non-binding Resolution on this issue).

Some prefer the idea of a change in colour due to Brexit, but the issue isn’t about ‘sneering’ at people who might prefer one passport colour to another. In fact, aesthetically I prefer my previous UK passport colour (which was black, not blue). But a passport should be judged not by the colour of its cover but by the content of the rights it confers.

In that light, it’s a good moment to review the rules on visits and long-term immigration to the EU that will likely apply to UK citizens after Brexit. This is an update of a previous post from 2014 on this issue, except it should be noted that there will likely be separate rules on UK citizens who already live in the EU27 states on Brexit Day – on the basis of the withdrawal agreement, as partly agreed earlier this month. I have discussed that partial deal separately and so I won’t discuss that category of people further again here. My focus is on UK citizens who are still in the UK on that point (and who do not also have the citizenship of an EU27 country).

There are several general points at the outset. First, it seems likely that a transition period will be agreed as part of the withdrawal agreement (see discussion here). This may well mean that EU free movement law continues for a short period longer to apply between the UK and the EU after Brexit Day. Those who move during the transition period will likely be treated the same as those who moved before Brexit Day, although this has yet to be confirmed.

Secondly, EU immigration law (by which I mean the EU laws generally governing the immigration status of non-EU citizens) does not apply to all Member States. In particular, the rules relating to short-term visas and borders (and aspects of irregular migration) deriving originally from the Schengen open borders agreement don’t apply to the UK or Ireland. They only partly apply to Romania, Bulgaria, Cyprus and Croatia (although those States are meant to join in future) and have been extended outside the EU, to Schengen associates: Norway, Iceland, Liechtenstein and Switzerland. The rules relating to longer-term legal migration and asylum apply to all Member States except Ireland and Denmark, but not to any non-EU countries (other than the Dublin rules on which State to apply for asylum in, which apply to the Schengen associates). 

Crucially, this means that immigration between the UK and Ireland after Brexit isn’t directly affected by any of the laws discussed in this blog post. Also EU free movement law will still apply to UK citizens who are family members of EU citizens who move to another Member State. 

Thirdly, the following analysis is based on EU law as it currently stands, as it is applied to countries like the UK post-Brexit: ie, relatively wealthy non-EU countries which do not have free movement with the EU. I’ll indicate where the law is currently being revised. It’s possible that some special post-Brexit deal on some or all aspects of immigration, falling short of free movement, might be agreed between the EU and UK after Brexit. While this prospect can’t be discussed in detail, since the UK government has not indicated whether it would even wish to seek such an agreement and so there’s no indication of what the content might be (or whether the EU would agree to it), I’ll discuss this prospect generally in a final section.

Finally, while some might try to argue that any new difficulty for UK citizens moving or travelling to the EU after Brexit would constitute some form of ‘punishment’ by the EU, this would be profoundly dishonest. The UK government seeks – as most Leave voters supported – to become a non-EU country without free movement after Brexit. Ending free movement law necessarily means that it’s not only harder for EU citizens to visit and stay in the UK, but also the other way around: the clue is in the words ‘free movement’. It should not be too much to hope that people have the integrity to accept the responsibility for the consequences of the outcome which they advocated.

Visas and border controls

‘Visas’ are an issue for both longer-term immigration and short-term travel; here I’ll discuss short-term travel, which (like border controls) has been fully harmonised by the EU as part of the Schengen process. While it’s sometimes argued that UK citizens will face short-term visa requirements to visit the EU after Brexit, the current law of the EU (the visa list Regulation) suggests that they will not (as I discuss in more detail here). That’s because it’s EU policy not to apply visa requirements to fairly wealthy non-EU countries, or to most neighbouring EU states, provided that the countries concerned reciprocate by not imposing visa requirements on EU citizens.

However, the EU is planning to set up an electronic travel advance authorisation system (ETIAS). I previously discussed this idea here; in the meantime, the legislation to establish ETIAS has been proposed by the Commission, agreed by the Council and is now under negotiation with the European Parliament. The text as agreed by the Council (and the most recent EP/Council negotiation text) would apply the ETIAS to all non-EU countries without free movement, therefore including the UK. Some in the UK would like to do set up a parallel system after Brexit, which would apply to EU citizens in return. (Note: I assume that during any transition period in the withdrawal agreement, the UK will temporarily be defined as a non-EU country which does apply free movement. The focus here is on what happens after that).

What about queues at border controls? At present, the Schengen borders code sets up a fast track solely for those with EU citizenship or nationality of a state with a free movement deal (see Articles 8 and 10). So UK citizens will no longer be fast-tracked at those borders after the end of free movement rules, unless the UK and EU negotiate an unprecedented special arrangement. Those who assert with certainty – like this MP – that nothing will change as regards longer border queues are therefore misstating the legal position. The comparison with Switzerland by the same MP is even more bizarre, given that Switzerland has signed up not only to free movement but also to the Schengen system.

UK citizens will also be subject to the planned EU entry-exit system, on the basis of newly adopted legislation, once that system is set up.  Again, that system, which will take records of all those entering and leaving the EU, will apply to all non-EU countries without a free movement agreement.  Similarly, UK citizens who have a record of criminal offences or immigration law breaches will be subject to entry bans for the entire EU enforced by means of the Schengen Information System (which is being revised), for the same reasons.  (The UK currently participates in other aspects of that System, as regards exchanges of criminal law and policing information, but it remains to be seen if this remains the case after Brexit: see further discussion here).

Long-term migration

Of course there will still be some UK citizens moving to EU countries on a long-term basis after Brexit. The point is that they (like EU citizens moving in the other direction) will no longer have the right to do so on the very liberal terms set out in free movement law, but instead will be moving on the basis of more restrictive rules set out in national law. On the EU side, those national laws have been partly harmonised by EU law. (Retirement of UK citizens in the EU will be entirely subject to the national laws of Member States).

First of all, as regards moving for work, there is EU legislation on highly-skilled non-EU migrants (the ‘Blue Card’ Directive, currently being revised as discussed here); the single permit Directive, which sets out common rules for equal treatment of non-EU migrants allowed to work; the Directive on seasonal workers (discussed here); and the Directive on intra-corporate transferees (discussed here). To some extent, this legislation sets only minimum standards or allows Member States to set up parallel national regimes.  

As regards students and researchers, a revised EU law (discussed here) will apply from 2018 (so before Brexit). UK students will lose the right to equal treatment as regards tuition fees and admission in EU universities that they currently enjoy as EU citizens (unless otherwise agreed). However, according to ECJ case law (discussed here) non-EU students must be admitted if the (more stringent) standards in the current version of the EU legislation on non-EU students are met. (There’s no reason to think that case law won’t apply to the newer version of the law).

Family reunion for UK citizens who move to the EU will also be harder after Brexit, whether their family are UK citizens or citizens of other non-EU countries, on the basis of the standards in the EU’s family reunion Directive. While Member States can set higher standards than the Directive, they often do not do so.

Finally, what about asylum? EU citizens are all but banned from applying for asylum in other Member States (the exception is discussed here), but UK citizens will no longer be EU citizens after Brexit. Like the UN Refugee Convention, EU refugee law (which is currently being revised: see discussion here) defines a refugee as person who is outside their country of origin due to a genuine fear of persecution by reason of race, religion, nationality, political opinion or particular social group. Persecution is defined as entailing some form of violence or other severe restriction on human rights. As things stand, despite obnoxious headlines from the UK’s most toxic newspapers, those calling for murder of Remain supporters are a tiny extreme fringe and there is no sign that the UK government is unable or unwilling to respond to any further violence which they might commit. Nor is there any move to lock up or ban the free speech of Remain supporters. Let’s hope this always remains the case.

Irregular migration

Finally, it should be noted that UK citizens who breach the immigration law of the EU and/or its Member States – which would obviously be more likely after Brexit as less liberal rules would apply – would be subject to the EU’s Returns Directive, which governs many aspects of the process of removing non-EU citizens who are not legally resident. This Directive has been subject to a relatively liberal interpretation by the ECJ, as I discuss here), but nevertheless it is rather more restrictive than the rules on expulsion or detention as set out in EU free movement law.

Special deal?

Could the EU and UK sign as special deal on immigration after Brexit? (I am leaving aside the likely transition period in the withdrawal agreement). As regards visas and borders, this would likely be an agreement with the entire EU, since the degree of harmonisation in this field means that the ECJ would likely rule that the EU has exclusive competence. In practice, the EU has been willing to sign treaties with non-EU countries on links with the border agency Frontex, and on visa waiver and readmission treaties. Would the EU be willing to go further, and (for instance) agree reciprocal non-application of the electronic travel authorisation rules on each side?

On legal migration, the EU has harmonised the law less and the Treaties reserve a national competence regarding the numbers of non-EU citizens admitted to work. Moreover, EU legislation in this field usually expressly states that Member States can enter into bilateral treaties with non-EU countries.  So any agreement would either be ‘mixed’ (needing ratification by the EU and its Member States), or purely bilateral between the UK and individual Member States. In some cases the EU has been willing to sign an association agreement with non-EU countries which contains limited rules on immigration.

More broadly, the issue of whether the UK and EU should sign a special immigration deal after Brexit may form part of the broader talks, with some in the UK willing to offer a trade of limited preferential labour market access in return for bigger access to the EU services market, for instance. Others might be unwilling on principle to offer any commitment regarding immigration. One factor that shouldn’t be overlooked is that such a deal would be reciprocal – preserving equally some possibility of facilitated immigration for UK citizens to the EU, not only the other way around.

*This blog post was supported by an ESRC priority grant on "Brexit and UK/EU immigration policy"

Barnard & Peers: chapter 27, chapter 26

JHA4: chapter I:3, I:4, I:5, I:6, I:7

Photo credit: Telegraph

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

The new EU Migration Agenda takes shape: analysis of the first new measures

Steve Peers

This week the European Commission took its first steps towards implementing its new EU Migration Agenda (previously discussed here). A number of the items in the agenda have already been addressed (for instance, the military mission against smugglers on the Libyan coast, as discussed here). Others will be addressed later: a broader reform of legal migration law and changes to the rules on asylum procedures and the ‘Dublin’ rules on responsibility for asylum-seekers.

The first batch of measures contained five different elements. First of all, the Commission launched a public consultation on the reform of the existing EU law providing for a ‘Blue Card’ for the admission of highly-skilled non-EU migrants. I have commented previously here on the implementation of this law and the reforms to it which should be adopted.

Secondly, the Commission released an Action Plan against migrant smuggling. This mainly elaborates upon several ideas mentioned already in the main agenda. This includes: a revision of EU anti-smuggling law, planned for 2016, to increase smugglers’ penalties and clarify humanitarian exceptions from the rules; possible new rules on immigration liaison officers in 2016; a Handbook on expulsion in 2015; a possible revision of the rules on trafficking victims, in 2016, to include ‘victims’ of smuggling; a revision of the legislation on Frontex (the EU border agency), to give it more powers relating to expulsion; changes to the rules on the Schengen Information System in 2015-16, so that all Schengen Member States’ entry bans are applicable across the Schengen area; a handbook on prevention of migrant smuggling in 2017; readmission agreements with sub-Saharan countries; and stronger enforcement of the rules prohibiting employment of irregular migrants. Most of these measures concern all irregular migrants, not just those who were smuggled to the EU.

Thirdly, the Commission adopted a Recommendation on the resettlement of refugees directly from outside the EU to EU Member States. As a Recommendation it is non-binding, and as an act of the Commission, it does not need the approval of the Council or the European Parliament. According to the new Immigration Agenda, there will be EU funds attached to each resettled refugee, so Member States are encouraged to resettle people. It is a useful measure to ensure that a bigger number of persons are rescued without having to risk their lives or pay smugglers to cross the Mediterranean, although the overall numbers are likely to be modest.  In the event that Member States do not make use of the Recommendation to resettle refugees, the Migration Agenda promises a proposal for a binding measure, although it might be hard to find sufficient support in Council for its adoption.

Fourthly, the Commission issued guidance on the fingerprinting of asylum-seekers, as provided for in the EU’s Eurodac legislation, which sets up a database of such fingerprints in order to apply the ‘Dublin’ rules more effectively. In the Commission’s view, any irregular border-crosser who refuses to give fingerprints ought to be detained, expelled and subjected to an entry ban, in accordance with EU asylum law and the Returns Directive. Alternatively, Member States could force them to take fingerprints, with a possible exception for pregnant women and minors. Frankly, the correct application of the EU’s Dublin system is not worth the health of life of a single unborn child.

Moreover, the Commission appears to be confused about the details of the relevant legislation. It would be necessary to prove that refusal to take fingerprints ‘avoids or hampers the preparation of return or the removal process’ to justify detention under the Returns Directive; but the purpose of the fingerprinting is mainly to apply the Dublin asylum rules, not to ‘prepare the return and/or carry out the removal process’, which is the legal basis for detention of irregular migrants under the Returns Directive. Furthermore, the rules on entry bans in that Directive make no reference to the issue of fingerprinting. As for asylum-seekers, the paper is correct to say that they can be detained in order to ‘verify their identity and/or nationality’ in the EU’s Reception Conditions Directive. However, for asylum-seekers who have been fingerprinted already by a Member State and then apply for asylum in a second Member State, the Commission fails to mention that the Dublin rules apply. They permit detention only where there is a ‘significant risk of absconding’, which does not automatically follow from a refusal to be fingerprinted.

Fifthly, the Commission proposed a Decision on relocation of asylum-seekers between Member States. This is the only one of this week’s proposals which would (if adopted) be legally binding. Like most Commission proposals, this needs a qualified majority of Member States to support it in the Council; unlike most EU law, the European Parliament need only be consulted. It seems from press reports that there will be a ‘blocking minority’ of Member States preventing its adoption, unless some of them change their position. It’s also possible that it will be agreed, but with major changes. But for now, let’s look at what the proposal would do if adopted.

The main thrust of the proposal is to derogate from the usual ‘Dublin’ rules as regards Italy and Greece, and distribute about 40% of the asylum-seekers which would normally be the responsibility of those Member States under the Dublin rules to other Member States. Due to opt-outs, the other Member States will not include Denmark or the UK, although it seems possible that Ireland will opt in. The proposal also will not apply to the non-Member States bound by the Dublin rules (Norway, Switzerland, Iceland and Liechtenstein). It would effectively be a regime within a regime, with only 25 or 26 of the 32 Dublin States applying it.

The relocated asylum-seekers will be split 60/40 between Italy and Greece, and will be allocated to other Member States on the basis of the criteria set out in the Annexes to the proposal. Relocation will be selective, applying only to those nationalities whose applications have over a 75% success rate in applications for international protection. It’s clear from the proposal that the Commission believes that only Syrians and Eritreans will qualify. The Member State of relocation will be responsible for considering the application, and asylum-seekers and refugees will not be able to move between Member States, in accordance with the normal Dublin rules. (After five years’ residence, refugees can move between Member States, according to the EU’s long-term residence Directive).

Besides the nationality criterion, who will be relocated? Asylum-seekers must be fingerprinted in order to qualify. The selection of asylum-seekers will be made by Italy and Greece, who must give ‘priority’ to those who are considered ‘vulnerable’ as defined by the EU reception conditions Directive. This refers to a long list of people:

‘such as minors, unaccompanied minors, disabled people, elderly people, pregnant women, single parents with minor children, victims of human trafficking, persons with serious illnesses, persons with mental disorders and persons who have been subjected to torture, rape or other serious forms of psychological, physical or sexual violence, such as victims of female genital mutilation’

Implicitly, the other Member States must accept the asylum-seekers nominated by Italy and Greece, except that they can refuse relocation if it’s ‘likely that there are national security or public order concerns’.

What about the asylum-seekers themselves? There is no requirement that they consent to their relocation or have the power to request it. The proposed Decision only requires Italy and Greece to inform and notify the asylum-seekers about the relocation, and the Commission suggests that they could only appeal against the decision if there are major human rights problems in the country to which they would be relocated. So neither the relocation itself, nor the choice of Member State that a person will be relocated to, is voluntary. This is problematic, since forcing asylum-seekers to a country that they don’t want to be in is one of the key problems facing the Dublin system already.

Of course, it’s possible that like children left in an orphanage who weren’t picked by new parents, there will be rather more asylum-seekers disappointed that they were not selected for relocation.  Do they have the right to a legal challenge? Arguably yes, to the extent that Italy and Greece select people who are not vulnerable for relocation, in light of their legal obligation to select vulnerable persons as a priority.  

Asylum-seekers do have the right to insist that their core family members (spouse or partner, unmarried minor children, or parents of minors) who are already on EU territory come with them to the relocated Member State. It’s not clear if Member States could count the transfer of family members towards their overall quota. If the asylum-seekers obtain refugee status in the State of relocation, they could also apply for family reunion under the EU’s family reunion Directive.

Similarly, it’s not clear if Member States can count towards their overall quota asylum-seekers who would normally be the responsibility of Italy and Greece, but who have already found their way on to another Member State’s territory. This might be termed relocation sur place. According to the rules in the Decision, this would in any event depend upon the willingness of Italy and Greece to designate such asylum-seekers for relocation. And as the Commission notes, persons who would already be the responsibility of Greece cannot be sent back there anyway due to the collapse of the asylum system in Greece, according to the CJEU ruling in NS (the position regarding Italy is more qualified: see the discussion of last year’s Tarakhel judgment). Of course, it is possible that the relocation of significant numbers of asylum-seekers away from Greece will contribute to solving the systemic problems with that country’s asylum system in the foreseeable future.

Overall, if the Council is willing to agree to the proposed Decision, it is likely to make a significant contribution to solving the problems with the asylum systems of some Member States, although only the more significant review of the Dublin rules promised for 2016 (or a profound improvement in the situation of countries of origin or transit) could provide a long-term solution. It is very striking that while this proposal effectively admits that the Dublin system is profoundly dysfunctional, the separate set of fingerprinting guidelines issued on the same day adopts a tone of head-banging savagery to try and get that system to work.

A final question arising is the impact of the proposed asylum measures on the UK. While the UK has an opt out, some suggest that all asylum-seekers who reach the EU could ultimately obtain EU citizenship and then move to the UK. However, the proposed Decision only relocates asylum-seekers who have already reached the EU, rather than increase the total number of asylum-seekers. Furthermore, a recent fact check suggests that only a modest number of non-EU citizens get Italian nationality each year, and that Italy only grants refugee status to a handful of people. Indeed, the only prominent Italian citizen with an African background currently in the UK is Mario Balotelli - but I don't want to intrude into the private grief of Liverpool football fans.

Barnard & Peers: chapter 26

Photo: GlobalNation.Inquirer.net