Jean-Baptiste Farcy, Research Assistant, Universite Catholique de Louvain

Introduction

After a 2001 attempt to create a comprehensive EU law regarding entry and residency for non-EU workers failed, the EU’s approach to labor migration has been fragmented and industry-specific. Due to the sensitivity surrounding immigration and the importance of national sovereignty, the EU has focused on creating laws for a select few economic migrant categories.

Highly skilled workers are one such category. Competition to attract these workers, who are considered economically valuable, is fierce among developed nations. In 2007, the European Commission proposed simplifying entry requirements for highly skilled workers, providing attractive residency terms, and creating a streamlined application process. This proposal resulted in the 2009 “Blue Card” Directive.

However, a 2014 Commission report revealed that the Blue Card Directive hasn’t been successful. The number of Blue Cards issued is lower than projected. While this can be attributed to existing national programs and a lack of awareness about the Blue Card, the Directive’s entry and residency requirements are likely too strict.

Jean-Claude Juncker, recognizing these limitations, announced his intention to revise the Directive to make it more appealing. Following his lead, the Commission included Blue Card Directive reform in the 2015 European agenda on migration. A public consultation on the Directive’s future took place, and a reform proposal was published on June 7, 2016.

This blog post examines the proposal’s key changes and analyzes its potential to attract skilled workers to Europe. It begins with a brief overview of the current Blue Card Directive to provide context for the proposed reform, focusing on its salient points.

The UK, Ireland, and Denmark opted out of the Directive. However, if the UK leaves the EU without an agreement on the movement of people, the Directive would ironically apply to the UK, regulating the entry of highly qualified British citizens into the remaining EU.

The current Blue Card Directive and its limitations

Although designed to offer highly qualified workers favorable entry and residency conditions, the Blue Card Directive’s inherent flaws have hampered its appeal. Many of these weaknesses stem from member states’ hesitation and disagreements on labor migration.

The definition of who qualifies for a Blue Card is a prime example. Article 3 of the Directive defines a highly qualified worker as someone with a higher education degree lasting at least three years or, if national law allows, at least five years of relevant work experience. This inconsistent definition varies across member states.

Strict entry requirements, limiting potential applicants, contribute to the Blue Card’s unpopularity. A valid work contract or binding job offer (if permitted by national law) is mandatory, and the salary must be at least 1.5 times the national average gross salary (at least €51,466 in Belgium). Securing a job from abroad is essentially a prerequisite, and the salary criterion favors large corporations and senior roles.

The Blue Card Directive, aligned with most member states’ labor migration policies, uses a demand-driven entry system. Applicants must possess a valid work contract, and the Directive doesn’t offer job-seeking permits. Member states can conduct labor market tests, potentially leading to Blue Card rejection or non-renewal during the first two years of employment (Article 8). This employer-centric approach explains why unemployment exceeding three consecutive months or occurring more than once during the Blue Card’s validity can result in its revocation (Article 13).

Furthermore, Blue Card holders have restricted access to the labor market in the issuing Member State for their first two years. Changing jobs necessitates prior authorization, the new position must be highly qualified, and the salary condition applies (Article 12). Equal treatment with nationals, limited to highly qualified employment, might be granted after two years. The current Blue Card Directive, with its focus on member states’ needs, has significant drawbacks.

Contrary to the internal labor market’s principles, the current Directive offers limited support for intra-EU mobility due to member states’ disagreements. TCNs can only move after 18 months, and the Blue Card doesn’t guarantee work authorization in the new Member State. Applying for a new Blue Card in that country, potentially taking up to 90 days, subjects intra-EU mobility to the same initial entry requirements. This severely restricts movement within the EU, despite highly qualified TCNs being typically more mobile than nationals and low-skilled workers.

While these factors contribute to the Blue Card’s lack of popularity, its most significant obstacle is the continued existence of national schemes for highly skilled workers. This creates parallel rules, conditions, and processes, hindering the Blue Card’s EU-wide adoption and limiting its visibility. Despite the Blue Card’s limited success, many highly qualified individuals have entered Europe under national schemes (24,922 out of 38,774 in 2014).

Despite being an essential instrument in the EU’s labor migration policy, the Blue Card Directive has had a minimal harmonizing effect. It sets minimum standards, leaving significant discretion to member states. Although granting certain rights to highly qualified TCNs, the Directive’s limitations hinder the Blue Card’s appeal, failing to replace national schemes.

With the shortcomings of the existing Directive outlined, this analysis will now examine how the Commission’s proposal aims to address these issues and achieve the Directive’s original goals.

The Commission proposal

Instead of expanding the scope beyond highly skilled TCNs, the Commission proposes easing entry requirements and making the Blue Card accessible to a broader range of skilled workers. The proposal also aims to enhance the rights associated with the Blue Card.

First, “highly skilled employment” replaces “highly qualified employment,” encompassing individuals with a bachelor’s degree equivalent and those with at least three years of relevant experience. The proposal also expands the Directive’s scope to include highly skilled beneficiaries of international protection. While recognized refugees already access the labor market, being Blue Card holders would grant them associated rights, including greater intra-EU mobility.

Second, the proposal emphasizes that “Member States shall not issue any other permit than an EU Blue Card to third-country nationals for highly skilled employment.” This aims to eliminate parallel domestic rules and procedures, making the Blue Card a genuinely EU-wide system. This would enhance visibility and clarity, but it might face resistance from Member States.

Third, the salary requirement is lowered to make the Blue Card more attainable. While remaining relative due to wage disparities among Member States, the salary threshold would fall between 1.0 and 1.4 times the average gross salary, with the maximum being lower than the current minimum. The proposal also includes two exceptions with a lower salary threshold (80% of the standard threshold): professions with shortages and recent graduates.

The lower salary threshold should make the Blue Card more inclusive and effective. Combined with Directive 2016/801, which allows students/researchers to stay for at least nine months post-study/research to seek employment, the exception for recent graduates makes the EU more attractive and facilitates Blue Card applications for those who cannot command high salaries.

Fourth, labor market tests would be limited to exceptional circumstances, such as high unemployment in specific occupations or sectors, requiring justification to the Commission. This restricts states’ labor market control and means a highly skilled TCN meeting the entry requirements, including a work contract, could not be denied entry based on the availability of another worker. Consequently, the Blue Card system would become more effective in attracting highly skilled TCNs by moving away from a labor market adjustment rationale.

Fifth, Blue Card holders would gain full access to highly skilled employment, significantly improving labor market access. They could change employers freely, even within the first two years, as long as the new position qualifies as highly skilled employment. However, Member States retain the right to withdraw or refuse Blue Card renewal if conditions aren’t met, including the salary criteria. The proposal also permits Blue Card holders to engage in self-employment, though only as a secondary activity. These changes promote TCN autonomy and equality with nationals, likely making the Blue Card more attractive.

Sixth, Blue Card holders would benefit from streamlined access to long-term residency. The new Directive would deviate from Directive 2003/109, granting long-term residency after three years (instead of five) of legal and continuous residence. However, unemployment and insufficient resources could lead to the status being revoked before the standard five-year period. This is a positive step, as it improves integration prospects for TCNs, potentially influencing their choice of destination country.

Finally, the proposal aims to strengthen the EU’s appeal by simplifying intra-EU mobility, aligning with the goal of a genuinely EU-wide Blue Card. The minimum residency period before moving to another Member State would decrease to 12 months. While still requiring a new Blue Card application, TCNs could work immediately upon application (no longer subject to national law). Member States’ discretion is also limited. Notably, labor market tests would only be allowed if used for initial entry, and quotas would be prohibited, unlike the current situation.

Member States’ right under Article 79(5) TFEU to control the influx of TCNs for work is limited to those arriving directly from third countries, excluding intra-EU mobility. Therefore, the proposal would enhance intra-EU movement, granting TCNs easier access to other Member States’ labor markets. While this reinforces the idea of a single EU labor market (far from reality), it remains to be seen whether highly skilled TCNs will utilize this increased mobility. Currently, Germany issues the vast majority (around 90%) of Blue Cards, making it difficult to assess mobility patterns.

Comment

The Commission’s proposal for a complete overhaul of the Blue Card system reflects its concern about its underwhelming performance. It seeks to increase the EU’s competitiveness in attracting highly skilled workers.

The proposal is ambitious, aiming for less restrictive entry criteria, a more inclusive Blue Card, and reduced member state discretion for greater harmonization. Limiting labor market tests suggests that labor migration is viewed as more than just a tool for labor market adjustment.

While the system remains demand-driven, requiring applicants to have work contracts, it acknowledges highly skilled labor as a valuable source of human capital. The Commission intends to grant Blue Card holders faster access to long-term residency, potentially attracting migrants and addressing Europe’s demographic trends and human capital needs.

Despite its merits, the Commission’s proposal may be too ambitious for Member States, yet insufficient to significantly attract highly skilled workers to the EU.

While reform was necessary, the proposal’s timing is questionable. The current asylum crisis has fueled resistance to common European migration rules, particularly those perceived as undermining national sovereignty and control over entry. The proposal’s ambition, especially eliminating national schemes for highly skilled workers, might encounter resistance, potentially prolonging the legislative process despite growing recognition of skilled migration’s economic benefits.

Unlike Canada or Australia, EU member states don’t face a high volume of applications. The Commission aims to make the EU more attractive through migration policy. While a harmonized EU-wide scheme benefits employers and potential candidates, the Blue Card is only one factor among many. The public consultation highlighted quality of life (welfare, healthcare, wages, safety, environment) as attractive factors, while permit difficulties and limited integration prospects (immigration openness, language, integration support) were deterrents.

The proposal might streamline permit issuance, making the Blue Card accessible to more individuals, including recent graduates. However, it’s unclear whether it will attract more skilled labor to the EU (the Commission’s estimate of 32,000 additional permits seems optimistic). Sweden’s liberal immigration system, for example, hasn’t led to a surge in highly skilled workers. While more inclusive than the current Directive, the proposal might not achieve its goal without supplementary policies.

Barnard & Peers: chapter 26

JHA4: chapter I:6

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