The Blue Card Directive & The Grey Implementation Period. – MANUEL DELGADO MEROÑO.
“The Union has today set itself a new strategic goal for the next decade: to become the most competitive and dynamic knowledge-based economy in the world capable of sustainable economic growth with more and better jobs and greater social cohesion”.83
In 2000, the European Union (EU) defined it ́s global strategy for the following decade, expecting a social, cultural and political growth as the economic one it was living through Member States (MS). Fifteen years later, this policy brief analyses whether we have achieved this goal in terms of economic growth or not. We will dedicate, specifically, to determine if the Council Directive 2009/50, known as the Blue Card Directive, has contributed to establish ahomogenous scene towards immigration policies, in terms of high skilled workers.84 That would also allow us to understand a relevantapproach to the European integration process.
– CONTEXT –
Firstly, the Blue Card Directive (BC) is not the first attempt at the EU stage to harmonize immigration rules. The Single European Act in the 1980s, the Schengen treaty or the Dublin agreement, both in the 1990s, could be mentioned as earlier tries of building a common space for immigrants. Nevertheless, the Tampere Summit of 1999 announced a mandate of five years to synchronize immigration guidelines. In addition, it recognized labor market necessities in diverse sectors, as well as demographic needs.
Secondly, following Tampere, the Lisbon European Council, as we have said, propelled the Lisbon Strategy in 2000, which led the European Commission (EC) to promote the implementation of the co-ordination method to “encourage countries to advance their levels of national policy experimentation and co-ordination through a non-binding yet common governance mechanism”.86 This policy centered itself in some areas, as the high skilled immigration, but finally the Council did not embrace the plan. Similarly in 2001, the EC proposed a Directive on “the conditions of entry and residence of third-country nationals for the purpose of paid employment and self-employed economic activities”.87 It is a pertinent moment not because of its implementation, as it was withdrawn in 2006, but because it highlighted the Community should entice high skilled immigrant workers due to a lack of experienced professionals in certain segments.
Afterwards, the Hague Programme of 2004 acknowledged that legal immigration would improve the European “knowledge-based” economy.88 Furthermore, in December 2005, the Commission presented a Policy Plan on Legal Migration.89 “The proposals concerned four types of immigration: high-skilled immigrants, intra-company transfers, seasonal workers and trainees. This was the first time that a proposal was disaggregated by type of labor immigration”.90
Finally, the EU began with high skilled migrants not only because of their direct benefits to the MS, but also because consultations made by the EC indicated much more support for high skilled than for low skilled immigrants.
That led us to the current point: the Blue Card Directive.
86 A. Caviedes, “The open method of co-ordination in immigration policy: a tool for prying open Fortress Europe?”,Journal of European Public Policy, 11, 2004, pp. 289-310.
87 European Commission, “Proposal for a Council Directive on the conditions for entry and residence of third- country nationals for the purposes of highly qualified employment: Summary of the impact assessment”, European Commission SEC, 1382, 23 October 2007.
88Council of the European Union, “The Hague Programme: strengthening freedom, security and justice in the European Union”, General Secretariat, Brussels, 13 December 2004.
89European Commission 2005/669; by which guidelines other directives were approved, such as Directive 2011/98on a single permit and a common set of rights for TCN workers& Directive 2014/36 on admission of seasonal workers & Directive 2014/66 on admission of intra-corporate transferees.
90L. Cerna, “The EU Blue Card: A Bridge Too Far?”, University of Oxford, Department of Politics & IR, Oxford, 23-26 June 2010.
91We should also mention that, as every Directive, this one needed to be transposed. So, taking into account that the Spanish State, represented by the government, has full competences in nationality, immigration, emigration, immigration and asylum, as Article 149.1.2 of the Constitution stablishes, there was only one transposition.
As a result of this, we find the main law (I) and more regulation that expounds it (II):
I) Ley Orgánica 2/2009, de 11 de diciembre, de reforma de la Ley Orgánica 4/2000, de 11 de enero, sobre derechos y libertades de los extranjeros en España y su integración social. BOE299, de 12 de diciembre de 2009.
– SCOPE –
The EU Blue Card was adopted on 25 May 2009. This Directive is the outcome of exhaustive deliberations in the European Parliament and the Council. Thus, the original proposal issued by the EC has been changed to major amendments.
The Directive ́s ambit is to concrete “(a) the conditions of entry and residence for more than three months in the territory of the Member States of third-country nationals for the purpose of highly qualified employment as EU Blue Card holders, and of their family members;” and “(b) the conditions for entry and residence of third-country nationals and of their family members […] in Member States other than the first Member State”.
In summary, the EU faces relevant issues for the following decades and this EU Blue Card Directive is only one of the instruments already placed. “Firstly, these challenges are related to demographic shrinking. Some member states are already experiencing this, and a greater number of countries will be facing demographic problems in the next couple of years. Secondly, the European population is growing older, which means that the EU is an ageing society. Finally, national labor markets are experiencing skill and labor shortages which in certain cases are quite severe”.
– REGULATION –
Article 5 stablishes the requirements a person shall comply with in order to be eligible of a Blue Card:
In first place, it is necessary to possess a valid work contract or, instead of that, a binding job offer for higher qualified employment for a minimum of one year. What does “higher qualified employment” mean? It is the situation of someone who is protected as an employee for working for, or under the direction of, someone else in return for remuneration, and who is also characterized by higher professional qualifications under national employment law. Again, we should clarify what “higher professional qualifications” stands for. Article 2 describes them as higher education qualifications or, in case of national law, five years of proved relevant professional experience at least.
In Second place, “the third-country national must provide a document attesting the eligibility for a regulated profession, or for unregulated professions proof of the relevant higher professional qualification.94 Thirdly, as a general rule the gross annual salary level must be at least 1.5 times the average gross annual salary in the Member State concerned. Finally,95 the Blue Card applicant must have valid travel documents, comprehensive sickness insurance and must not pose a threat to public policy, public security or public health”.
In third place, Articles from 7 to 11 of the Directive regulate the processes related to the States, specifying that the Blue Card holder is allowed not only to enter and stay in the MS, but to re-enter bringing the Blue Card. On the other hand, MS could reject a solicitation for a Blue Card upon on a list of reasons; taking into consideration the already said Article 5 (admission criterion), the labor market situation of MS, certain ethical policies or the public statement of sanctioning an employer for undeclared work.
About ethical procedures, Article 8.4 deters the acquisition of a Blue Card from workers of third countries critical sectors. It says that “Member States may reject an application for an EU BlueCard in order to ensure ethical recruitment in sectors suffering from a lack of qualified workers in the countries of origin”. We will analyze it later.
Moving onto economic and social rights, the Directive affirms the equality for Blue Card holders, in terms of treatment and recognition, to the rights assumed by the nationals of the host state, as an ineludible condition for prosperity and integration. The EU focuses in labor market access, temporary unemployment regulation, perspectives of non-discrimination, long term resident status and family unity.97 Nevertheless, there could be an obstacle, not depending on the applicant, but depending on the State, because MS “may examine the situation of their labor market and apply their national procedures regarding the requirements for filling a vacancy”, based on whether the vacancy “could not be filled by national or Community workforce, by third-country nationals lawfully resident in that Member State and […] or by EC long-term residents wishing to move to that Member State”.
Another reflected objective of this Directive is promoting the mobility of highly qualified third-country workers between their countries of origin and the Community, as an attempt of increasing circular and geographical migration. Therefore, Article 16 is in charge of derogating Article 4 of the Directive 2003/109/EC,99 allowing a Blue Card holder to cumulate period of residence in different MS, if he or she accomplish the following requirements:
“(a) Five years of legal and continuous residence within the territory of the Community as an EU Blue Card holder; and(b) Legal and continuous residence for two years immediately prior to the submission of the relevant application as an EU Blue Card holder […]”.100The maximum period of absence would be, consecutively, of 12 months and it should never surpass, in total, 18 months. “The EU Blue Card holder also enjoys more favorable treatment once he or she has acquired long-term resident status: the authorized period of absence from the territory of the Community is extended to 24 consecutive months”.101 However, MS could restrict, as Article 16.5 stablishes, those rules in cases originated by an absent for exercising an economic activity, performing a voluntary service or studying in the country of origin.
Moreover, Article 18 determines the premises and conditions to reside in other MS; proclaiming that “after eighteen months of legal residence in the first Member State as an EU Blue Card holder, the person concerned and his family members may move to a Member State other than the first Member State for the purpose of highly qualified employment […]”.The guidelines concerning the residence for the family members of the person in possession of the Blue Card, in the second MS, are showed in Article 19 of the Directive.
– STRENGTHS –
We will be analyzing whether the aim of the EU, regarding this Directive, which is to boost the movement of the highly qualified workers to the Community, has been finally achieved or, if not, what have been the main difficulties of the process.
The Directive promotes Circular migration through the EU and those countries of origin; which we consider is a legitimate procedure to develop MS but remembering where every professional comes from; willing to sending remittances to the country to increase not only familiar, but also economic conditions.
We should add a relevant contextual point: this is the first effort directly oriented to attract high skilled workers, so the Directive is ambiguous, optional in some provisions, non competitive and problematic, but it is an important step that stresses out what should be the future path for the EU. We have to see the EU Blue Card not only as a Directive, but as a legal tendency to economic unification. Its mere existence is positive, because it proves that, at least now, the Council is starting to think seriously about migration as a competitive tool.
At this moment, we would like to explain why ethical measures are explicitly included in the EU Blue Card Directive. As we have noticed, this Directive contributes to the EU, as other regulations framed, by the “admission for economic purposes”. However, living in a global world implies not only continuous efforts to gain talented professionals, but also to cooperate with other countries to do so. That is the reason why the EU is aware of our “brain drain” problem and, at the same time, it realizes the conditions of third countries. Consequently, the Directive aims to look for “the best and the brightest” without forgetting where we are and how we want developing nations to be; keeping their critical sectors guarantied. Otherwise, the EU would be hypocritical, giving economic aid to non-developed countries while it removes their human resources from their origin territories. However, the problem is that all provisions regarding this topic in the Directive are optional for MS.
– WEAKNESSES –
First of all, the initial path of the EU Blue Card was not as good as it could be. Why? That is because of the remaining role the European Parliament played. Not only the Council did not accept its amendments, but also MS gave preference to their national interests, not considering the common values. Consequently, the European Parliament voted for the approval of the EU Blue Card Directive, but a large number of abstentions revealed its ambiguous position. So the decision-making process was a minimum effort for a top priority.
Secondly, as a transversal variable, the Council decides, in terms of the migration policies, now common, by qualified majority. Nevertheless, MS will remain to have the right to veto whenever a migration proposal affects the labor markets, because of third country nationals could seek for employment.
Thirdly, one problem is the specified average gross annual salary, defined as 1.5 times the national average salary. The European Parliament proposed at least 1.7 times this average. However, dealing with a wide variety of MS, where the economic and social conditions differ too much from one to another, maybe the error is the method itself, not the concrete quantity. So it could be useful adopting a system not based on a certain payment, but on factors as the age, linguistic proficiency skills or work experience, as a broad sense of the approach.
Next, as Articles 3 and 4 detail, MS could submit their national highly skilled admission systems in a parallel way to the common one for EU Blue Card so, ultimately, they are competing for talented people setting aside the whole integration process. “As opposed to the U.S. Green Card, the envisaged EU Blue Card neither provides fora right of entry and residence, nor for a right of access to the labor market”.
Moreover, it seems inexplicable that the EU Blue Card Directive specifies some procedures for a concrete group of third-country nationals regarding entry and residence conditions, but those EU citizens belonging to MS that joined the EU in 2004 and 2007, whose free movement is restricted because of transitional arrangements, maintain their conditions; being, by comparison, clearly treated at a disadvantage.
Finally, the Directive ́s common denominator is a tiny spectrum of what it could have been, and that is why Ireland and United Kingdom decided not to opt-in. “The BlueCard also demonstrates that member states are not willing to delegate decisions on the needs of their labor markets to the EU institutions. Therefore, its failure high lights underlying weaknesses in European institutions and the limits of further integration”.
– UNITY IN DIVERSITY –
Deciding about migration has always been a problem. Those sensitive interests of MS describe a tension between them and the EU as a whole. We have been analyzing one the main regulations that, with an economic approach, conform a migration policy to increase the competitiveness and demographic stage of the EU. However, all these steps, although they introduce some advantages, shows that the real obstacle will be a moment in which the EU will have to confront the political integration if it wants to continue developing programs and laws for all MS. Until that time, we are filling the gaps of not so conflictive areas; migration is one of them but, as we have seen, MS are able to keep much more power than anyone reading the Directive could expect.
To sum up, we shall say we are in a permanent grey transition time, when regulations are important as they show which should be the next step. Nevertheless, if we want to get ready to imbue to the EU when the time comes, we should also be preparing not only legal actions, but political ones. Our leaders need to be aware about our future needs and they will only be solved if the integration process continues and completes itself. For that, we will have to consolidate a united but diverse European citizenship which embraces the core values of Europe. That will be the appropriate scene where any migration policy is going to be widely implemented, without relevant differences or disadvantages to other countries and their own nationals. That will be the time when the EU plays its role as a unique member of the international relations panorama; making it easy for all of us to compete with the United States, Canada and Australia.