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Blue Card Redux: European Commission Plan to Recast Work Permit for Highly Skilled Holds Question Marks

Commentary
June 2016

Blue Card Redux: European Commission Plan to Recast Work Permit for Highly Skilled Holds Question Marks

European Parliament

The European Commission plan unveiled this week to recast the Blue Card would mandate more favorable entry and residence conditions (including on intra-EU mobility) for highly skilled workers from outside Europe. The plan represents an effort by Brussels to nudge national governments into greater use of the Blue Card, which has proven lackluster in attracting international talent, not least because of meager buy-in from most Member States.

Issuance of the Blue Card, which was launched with fanfare as an EU flagship initiative in 2009, would theoretically increase with this proposal. But beyond this, the Commission plan takes a decisive and unprecedented step further in an effort to create a genuinely EU-wide system for the admission of highly qualified workers, making it hard for Member States to justify the continued existence of their own national schemes. As such, this sweeping proposal will undoubtedly face resistance.

The Blue Card: Current Requirements

The 2009 Blue Card Directive set as minimum requirement for the issuance of an EU Blue Card that:

(a) candidates have a work contract or a binding job offer for highly qualified employment for matching their highest professional qualifications for at least one year; and

(b) the job grants a salary that is at least 1.5 times the average gross annual salary in the country where the permit is issued (at the Member State’s discretion the threshold can be reduced to 1.2 times the average gross annual salary for occupations in shortage).

Besides that, applicants must meet the different conditions set out by each Member State regarding the proof of high professional qualifications, the need to undergo a labor market test, or numerical limits on work permits issued. Depending on the country, the permit may be valid for anywhere from one to four years.

Blue Card Blues

The Blue Card Directive thus far has delivered little substantial change to the admission of highly qualified workers from outside Europe, with only slightly more than 30,000 work permits issued between 2012 and 2014, the last year for which data are available. A product of contested compromise, the Directive set loose minimum standards for Blue Card issuance and left Member States ample leeway on a variety of admission and residence criteria. As a result, not one, but 25 Blue Card systems have emerged (Denmark, Ireland, and the United Kingdom opted not to take part), in many cases in parallel to already well-developed national channels for the highly skilled. The result has been confusion and a system that is opaque for employers and potential candidates alike. Moreover, the Blue Card’s stated goal of facilitating the mobility of highly qualified professionals across Europe—intended both as a labor market adjustment mechanism and element of attraction for international talent—hasn’t been realized either.

Due to delays in transposing the Directive into national legislation, 2013 was the first full year when all 25 Member States began issuing Blue Cards. That year, fewer than 13,000 such permits were issued—90 percent by Germany. This trend persisted in 2014, when just 1,000 more were issued. Germany stands as the outlier because it implemented a generous version of the EU scheme, using it to almost entirely replace a more selective pre-existing national stream for highly qualified migrants.

A Way Forward for a Revitalized Blue Card?

The new proposal put forward by the Commission this week, as part of a major package of migration reforms, requires Member States to implement the most favorable interpretations found in the Directive’s clauses, in essence replacing “may” with “shall.” This is most clearly evident in the shift in terminology, from highly qualified employment to highly skilled employment; previously, Member States could take relevant professional experience of the migration candidate into account as a proxy for high qualifications, but this was an option rarely used in practice. The reform would make this mandatory.

Other elements that have been broadened include the minimum duration of the Blue Card (now 24 months, with a first-issuance exception), and the obligation to apply a lower salary threshold for shortage occupations requiring high skills, as well as for recent graduates. Under the new proposal, Member States would only be able to impose a labor market test and quotas under exceptional and justified circumstances.

Theoretically, more candidates could qualify, in particular recent graduates, as core requirements for the job offer would be lower. For example, the general salary threshold would be reduced to 1 and 1.4 times the average gross annual salary in each country.

Beyond this, the Commission’s proposal takes a decisive and unprecedented step in an effort to create a genuinely EU-wide system. It would prohibit Member States from issuing national permits for highly skilled foreign workers who fall under the scope of the Directive, requiring issuance of the Blue Card to all qualified applicants. This is a bold move, considering the historical reluctance of Member States to cede control over economic migration.

The Likely Reaction

Will a qualified majority of Member States accept these new terms? Resistance is likely to come from several quarters, not least those governments whose national schemes have fared better than the existing Blue Card in attracting highly skilled migrants. EU Member States recognize that they not only compete against other regions of the world, but against each other.

For example, in the Netherlands, the national scheme for highly skilled migrants has afforded a lower salary threshold than the Blue Card, particularly for recent graduates, and has promptly catered to the foreign recruitment needs of recognized employers—if at high fees. The recast Directive appears to take a page from the Dutch national scheme, proposing regulated sponsorship that allows for simplified issuance conditions and shorter processing times. The question is: Will this be sufficient to convince the Netherlands to abandon a relatively successful national system for one that has earned few plaudits there?

In Sweden, a uniquely demand-driven national labor migration system has so far succeeded in attracting both high- and low-skilled migrants, using the same rules and work permit. Introducing complexity in this fairly straightforward system by requiring that the country issue a different permit to highly skilled migrants might effectively be a bureaucratic step backwards that gains little employer or government support.

Other countries are likely to find the timing of this proposal poor. The idea of engaging in new negotiations and eventual transposition of what is still fairly new EU legislation at a time when the Home Affairs legislative slate is heavily focused on asylum and border management is unlikely to be welcome.

Ultimately, a majority consensus on the recast Directive can only be achieved if Member States recognize added value for attracting highly skilled migrants and filling critical unmet vacancies. Does the new proposal do this? The main lever used by EU regulators in this respect has been to significantly extend the set of rights afforded to Blue Card holders, including by offering a shortcut to long-term resident status (after three years), the possibility for self-employment alongside the salaried activity, and more favorable family reunification conditions.

Above all, the recast proposal would expand intra-EU mobility—the one element that national permits cannot grant. Blue Card holders would be able to take up highly skilled employment in another Member State one year after receiving their first permit (down from the current 18 months), so long as they can prove a job offer meeting the second country’s Blue Card salary threshold. They would also be granted the right to move within the European Union to carry out business activity in a Member State other than the one that issued the original Blue Card, for a maximum of 90 days within each 180-day period.

It remains to be seen whether this higher attractiveness would be enough to convince reluctant Member States to make changes in their own labor migration systems, at a time when many of these initiatives are anathema to increasingly Euroskeptic and anti-immigration audiences. While on the face of it such rights might prove attractive to foreign workers (and the European employers eager to tap their skills), it is exactly this attractiveness that many countries are keen to avoid. During negotiations for the existing Blue Card system, intra-EU mobility for high-skilled workers was a red line for almost all governments.

Setting aside the political and practical viability of the recast proposal, a deeper question should be asked: Is this proposal designed to establish a more efficient system to attract the best and brightest migration candidates to the European Union or just to increase numbers and avoid the high-profile failure of a flagship EU initiative? While attempting to shape an inclusive and flexible system that is able to replace the multiplicity of national schemes, the European Commission might have lost sight of the overarching goal of the instrument: selecting and attracting highly skilled workers rather than more workers.