Revising the EU Blue Card Directive

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by Elena Fumero

Labour migration policies have always been an extremely unpopular and controversial topic among Member States in the European Union (EU). In the past decades, EU countries have not hidden their preference for retaining lots of room to manoeuvre on economic migration, keeping strict control over admission of third country workers and disregarding any common policy framework. Economic migration is governed by two opposing ‘forces’; on the one hand, the desire of Member States to preserve their sovereignty and self-government when it comes to deciding who may legally migrate; on the other hand, the European institutions’ ambition of creating harmonized and coherent labour migration policies in order to increase the EU’s appeal to skilled workers and thus address labour shortages.

But the balance of those forces may be about to shift. During his successful campaign for election as Commission President, Jean-Claude Juncker highlighted the importance of adopting a sound legal migration policy with a view to addressing demographic imbalances and fostering economic productivity of the EU: we […] need to develop a common legal migration policy to meet the increasing demand for skills and talents.

As a consequence, Juncker has proposed revising the so-called EU Blue Card Directive (2009/50/EC), adopted in 2009 with the aim of attracting highly skilled third-country nationals (TCNs) into the EU: “we will have to look at this again with a fresh pair of eyes to identify ways and means of substantially broadening this initiative”. The Directive has made little impact in achieving its objectives – a situation demonstrated by the low numbers of Blue Cards granted so far. The initial aims of the Commission’s proposal of 2007 – essentially harmonizing the admission of highly qualified migrants at EU level as well as facilitating the conditions for those who wish to move to a second Member State for highly qualified employment – were progressively watered down by Member States during the two year-political debate at the Council. Protracted and difficult negotiations led to a relatively weak legal tool, which has left much leeway to Member States.

The Commission’s report on the implementation of the Directive of May 2014 (COM(2014)287) shows that only 3664 Blue Cards were issued in 2012 and around 15,000 in 2013. Though the number increased in 2013, this seems to be a consequence of delays in implementation of the Directive: the Blue Card scheme was in force only for few months in 2012 in most Member States. In practical terms, fewer Blue Cards were granted in 2013 than the permits issued under various national schemes the year before (around 20,000). In other words, the Directive has not increased highly skilled migration flows into the EU in the first two years of the scheme.

Future directions

What approach is the Commission likely to take to the legislation and how will it aim to counteract its weaknesses?

First, a key aspect of the Directive is that the Blue Card is not an exclusive system; it coexists with national schemes for attracting highly skilled migrants. As the Commission’s report underlines, national systems tend to compete with the Blue Card and this is reflected in the numbers of Blue Cards issued (e.g. in 2012 in the Netherlands more than 5000 national permits were granted to highly skilled TCNs compared to just a single Blue Card). What seems to be clear from the report is that the existence of innovative national systems has — inevitably — decreased the effectiveness of the EU scheme in many Member States. Moreover, the overlap of different admission schemes (at both national and EU levels) may have created confusion for migrants themselves.

Therefore, the Commission is likely to try to limit the current competition by restricting – or even eliminating — access to national schemes of admission. In such a scenario, the EU Blue Card system would still give Member States flexibility in managing admission of TCNs through the discretionary powers provided by the Directive (e.g. setting admission quotas or through the ‘preference test’ option which allows Member States to verify whether the job vacancy could be filled by national or EU workers).

Secondly, given that the lack of publicity for the EU scheme seems to have contributed to the limited impact of the Directive, migrant workers and employers must have greater access to information about the Blue Card permit and the rights set by the Directive. The Commission has promised to improve the availability of information and raise more awareness in third countries as well as among European employers. Moreover, Member States will be encouraged to use relevant information channels at national level — such as government websites and Immigration portals — with a view to advertising the Blue Card worldwide.

Finally, the most significant right granted to Blue Card holders is freedom of movement and right of residence in other Member States. At present, this right is impeded by strict rules and red tape: after having spent 18 months in the first Member State, the Blue Card holder who wishes to move to another Member State has to apply for a new Blue Card and fulfil all the initial conditions of entry. In order to make the EU more internationally competitive, the Commission will have to ensure that barriers to intra-EU mobility are finally broken down. In fact, creating a Blue Card that is truly valid throughout the EU, and setting common and more flexible rules on mobility, could play an essential role in attracting highly skilled migrants and promoting their efficient allocation to the EU labour market.

The up-coming revision of the Blue Card system could represent a crucial step to re-launching EU’s economic migration policy as well as promoting a more harmonized approach between Member States. Only the mutual effort of both Member States and European institutions can help to achieve these essential political goals and boost the European knowledge-based economy.

Elena Fumero is working as an intern for the MIGPROSP project. You can find out more about her here: http://migrationgovernance.org/team_items/elena-fumero/.