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By Elspeth Guild, Jean Monnet Professor ad personam, Queen Mary University of London    

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In 2009 the EU institutions adopted a directive regulating the admission, residence and rights of highly qualified third country nationals for purposes of relevant employment. This directive is commonly called the Blue Card scheme (Directive 2009/50). While the institutions trumpeted the arrival of a new labour migration tool on the EU market promising that the new directive would transform the attractiveness of the EU’s Internal Market to highly qualified third country nationals encouraging the world’s ‘best and brightest’ to come to work in Europe, the results have been paltry. As the Commission notes (more than once) in its presentation of a new revised version of Blue Card, the original scheme of the directive has “proven insufficiently attractive and underused, with only a limited number of Blue Cards issued.” (European Commission Fact Sheet 7 June 2016).

In 2014 the EU 25 which participate in the directive (self-excluding are Denmark, Ireland and the UK) issued 13,612 first Blue Card permits, according to the Commission. EUROSTAT advises us, however, that in 2014 the 28 Member States issued a total of 2.3 million first residence permits to third country nationals of which 572,000 were issued for employment purposes (EUROSTAT Residence Permit Statistics data extracted October 2015). So what has gone wrong with the Blue Card scheme? Why do Member States issue so many first residence permits to third country nationals for employment but so few of these are in the form of the Blue Card? The answer to this question is far from straightforward but identifying it and revising the Blue Card to make it more attractive is the objective of the new proposal. Just before leaving the statistics, it is also worth noting that the vast majority of Blue Cards issued in the EU in 2014 were so issued by Germany (12,108) while France issued a total of 597 and Poland, which, according to EUROSTAT was one of the biggest issuers of residence permits for employment to third country nationals in the EU in 2014, issued only 46 Blue Cards. Clearly something has gone wrong with the system.

According to unofficial sources, many of the Blue Cards issued in Germany have been provided to third country nationals who are already present in Germany with other kinds of residence statuses. Assuming this is correct, this means that the Blue Card is being used as a means to acquire a homogenous, EU based set of rights for third country nationals already present in a Member State – indicating that it is acting as a form of retention tool to keep talented people rather than to attract them in the first place. It might be worth highlighting this aspect of Blue Card – if it does not seem to work very well for the purposes of attraction then enhancing its value as a retention tool might be wise. The Commission has chosen a somewhat different route after substantial consultation and debate.

The first and most important proposal for changing the Blue Card scheme which the Commission suggests is that it should become the mandatory scheme for the Member States and replace all parallel national schemes which cover the same or a similar group of third country nationals. This is the coercive approach – force the Member States to start issuing Blue Cards by depriving them of the possibility of maintaining more favourable (for the employer) national schemes. This was part of the original proposal for the Blue Card in 2007 – that Member States would have to transform their national systems into Blue Card ones and would be prohibited from having competing national schemes. This constraint was gradually abandoned in the negotiations at the behest of a (limited) number of Member States which most firmly wanted to retain the possibility of maintaining and developing schemes tailored specifically to meet the requests of their employers. It is because of these schemes that there is such an enormous difference between the EUROSTAT figures of first residence permits for employment and the issue of Blue Cards. In order to persuade the Member States to use the Blue Card scheme, the Commission made valiant efforts to distill out the elements that Member State authorities really want to keep and use for their businesses but which are not incorporated into the current Blue Card scheme and to bring them into the revised version. Whether this will work remains to be seen.

For the moment, after the coercive measure to exclude national schemes (which might also encourage some Member States to be positive about the liberalising elements of the Commission’s revision) there are a number of changes. Key among these are the following:

  • Widen the scope of the Blue Card scheme to include beneficiaries of international protection (i.e. refugees and beneficiaries of subsidiary protection). This is revolutionary as it would allow those with an EU asylum status to switch to Blue Card while retaining their asylum rights. A corollary of such a switch would be much more liberal family reunification rights;
  • Include shorter labour contracts in the scheme – down from 12 months to six months (but unemployment periods of over three months in every 24 month period would entail the end of the Blue Card permit);
  • Allow Blue Card holders also to engage in self employed activities on the side;
  • Diminish the salary threshold from 1.5 times the average gross salary in the Member State to a sliding scale according to the preference of the Member State from 1.0 to 1.4 times the same salary. This salary level could be reduced further for shortage occupations and young graduates;
  • Greater intra-EU mobility for Blue Card holders (though the proposed changes to facilitate business trips may be incompatible with one of the four freedoms: the right to provide services as Blue Card holders will always be employees and when they make business trips within the EU they will usually be exercising for their employer its right to provide services);
  • Access to permanent residence more quickly – a three year period for those Blue card holders who remain in one Member State (though this is somewhat disingenuous as the Blue Card holder will still have to fulfill all the requirements of the Blue Card – e.g. a job, no reliance on social benefits, no extended unemployment etc to retain permanent residence for the two years before the ‘real’ permanent residence provisions kick in);
  • Facilitated family reunification and full access for family members to the labour market.

There is substantial merit to the proposed changes in particular for beneficiaries of international protection who may be able to leverage themselves out of the more restrictive provisions of the Common European Asylum System, in particular as regards family reunification by convincing their employers to seek Blue Cards for them. There is a long way for the EU to go before it will have a genuine internal market in labour which includes third country nationals who participate in the labour market of each of the Member States but this is a good step forward towards that destination.