Legal migration in the “New Pact”: modesty or unease in the Berlaymont?
By Sylvie Sarolea, Lawyer and Professor in Migration Law, Private International Law and Human Rights, at the Université Catholique de Louvain and Jean-Baptiste Farcy, Lawyer and Doctor of Laws from the Université Catholique de Louvain.
Creating legal avenues to the European Union is undoubtedly a central component of a comprehensive and balanced immigration policy. Although asylum attracts most of the media coverage and the political attention, the vast majority of the 3 million first residence permits issued by the Member States in 2019 were not delivered for the purpose of international protection. This could suggest that the EU legal migration system is working well. To be sure, immigration for family and educational purposes are addressed almost comprehensively by secondary EU legislation. While Directives 2003/86/EC and 2004/38/EC set out the conditions of family reunification, the admission of students and researchers is now spelt out in the recast Directive (EU) 2016/801.
However, when it comes to labour migration, the EU policy is relatively underdeveloped. Harmonisation in this field is limited both in scope and intensity: EU directives regulate the admission and stay of a few categories of workers only and the flexibility provided by the existing EU legislation protects rather than challenges the autonomy of national authorities. As a result, it should not come as a surprise that the recent “fitness check” concluded that “the current legal migration framework had a limited impact vis-à-vis the overall migration challenges that Europe is facing” (here, p. 105).
Given the limited added value of EU directives on labour migration, it wasn’t unreasonable to expect a new look, or even a “fresh start”, on this issue. While the European Commission timidly tries to design new schemes, it fails to convince (1). Unlike other issues addressed in the “New Pact”, no legislative proposal is put forward and a number of core dilemmas remain unresolved (2). Written in evasive terms, the Communication on a New Pact on Migration and Asylum raises more questions than it provides answers to.
1. New instruments or more of the same?
As the European Commission acknowledges, the development of legal pathways to Europe for work purposes not only helps alleviate the pressure on irregular routes, but it is also in line with the EU’s interests. Invariably, the Commission considers that the admission of labour migrants is justified by demographic considerations (an ageing and shrinking population in many Member States) and labour market needs. As the current pandemic highlighted, third-country workers are overrepresented in a number of key sectors (agriculture, health care, domestic workers …). More importantly, the Commission is concerned that the EU is currently losing the “global race for talent”. Thus, the argument is that efforts should aim at attracting and retaining larger numbers of (highly) skilled professionals.
The Commission hopes to do so in two ways: (i) by way of cooperation with third countries and (ii) by way of internal legislation. In order “to match people, skills and labour market needs”, the Commission is to launch “Talent Partnerships” which will provide a comprehensive EU policy framework as well as funding support. Knowing that legal pathways are a key factor for partner countries, the Commission hopes to convince them to cooperate on broader migration-related issues. Although the Communication remains silent on the content and the scope of these partnerships, it is likely that they will be a scaled-up version of current pilot projects on labour migration. This means that “Talent Partnerships” would be bilateral in nature, tailored to the interests of the participating Member State and the partner third country, and involving the private sector as far as possible. In any case, opening up legal pathways for (talented) labour migrants through bilateral agreements is hardly a novelty. Legal migration is indeed one of the four strategic objectives of the Global Approach to Migration and Mobility, yet since 2005 achievements have been limited, thus undermining the reputation and the credibility of the EU – as underlined by Elspeth Guild in a previous blogpost.
On the domestic scene, the Commission intends to give yet another push to the reform of the Blue Card Directive 2009/50/EC. However, since 2016, negotiations over the reform proposal made by the Juncker’s administration have stalled, mostly due to the unwillingness of Member States to give up their own national schemes (for a commentary of the proposal, see here and here). As the Commission does acknowledge (here, p. 25), national schemes tailored to domestic needs offer greater flexibility. It seems to be willing, therefore, to abandon its earlier demand for the exclusivity of the Blue Card – a move that might facilitate the adoption of the proposal in the near future.
Other measures put forward in the Communication include a revision of the Long-Term Residents Directive 2003/109/EC – currently under-used compared to national schemes – and a review (thus not a revision) of the Single Permit Directive 2011/98/EU. The Commission states that such a review would explore ways to clarify the scope of the Directive, including admission for low and medium skilled workers. Here, the Commission creates unnecessary confusion since the “single permit” directive does not regulate conditions of entry and stay, but aims to simplify procedures and to create a common set of rights for all migrant workers irrespective of their skills. In a year (Q4 2021), the Commission also aims to set out options to develop an EU Talent Pool based on the “expression of interest” system in place in Canada and New Zealand. The core idea, which was already mentioned in the 2015 European Agenda on Migration, is to set up an online platform where skilled third-country nationals can express their interest in migrating to the EU, thus allowing local employers to recruit among a pool of pre-screened candidates. Finally, a few years after the public consultation undertaken as part of the fitness check on the legal migration acquis, the Commission launched another consultation on attracting skills and talent, which was open for comments until 30 December 2020.
For our purposes, it is also relevant to point out what is NOT included in the communication. The idea of an immigration code, advocated for by the European Commission and academics alike a few years ago, has disappeared for instance. The new pact is also silent on the admission of non-seasonal low and medium skilled workers as well as self-employed or entrepreneur migrants, although this is arguably an important gap in the European legislation as the European Parliament acknowledged. Thus, the ambition is not to extent the personal scope of the EU labour migration policy – irrespective of actual needs – but to attract and retain larger numbers of skilled and talented workers. Finally, the facilitation of intra-EU mobility is not touched upon either, with the exception of long-term residents and highly skilled workers if the reform of the Blue Card Directive is eventually adopted. The mobility of third-country nationals thus remains subject to strict conditions.
The overall impression is that the Commission has decided not to decide. Using vague terms and referring to consensual objectives such as attracting more highly skilled workers to Europe, the Commission avoids making concrete pledges. If anything, new clothes are being put on past initiatives. Although no new legislative proposal is put forward, the Commission will continue to support (mostly financially) and coordinate national pilot projects that aim to manage labour migration. For the rest, there is no convincing reasons to believe that the current administration will succeed where others have failed in the past as a number of contradictions remain unresolved.
2. Unresolved contradictions and dilemmas behind the EU labour migration policy
The EU’s capacity to bring about a new direction to the current labour migration policy is impaired by both legal and political obstacles. Although Article 79 TFEU calls for a “common immigration policy”, Member States retain the right to determine volumes of admission for people coming from third countries to seek employment. As a consequence, Member States can limit the application of secondary EU legislation by setting a cap to the number of labour migrants admitted on their territory. Another consequence of that provision is that the EU’s external action is dependent on Member States’ willingness to act. Irrespective of the level of harmonisation achieved internally, the EU should refrain from making offers to its partners without the participation of its Member States, or at least some of them. Therefore, the development of “Talent Partnerships” may be blocked by the unwillingness of Member States to participate. Indeed, since 2015 and the adoption of the European Agenda on Migration, only a handful of Member States have set up pilot projects on labour migration. Nevertheless, the Commission states that “the EU as a strong track record in labour mobility schemes” (here, p. 23).
The exclusive competence of Member States to set volumes of admission for labour migrants can be seen as a consequence of their political reluctance to act in common in the field of labour migration. For decades, and at least since the 1987 case Germany et al. v. Commission, Member States have tried to limit the reach of the EU’s intervention in this politically sensitive field. Although the European Commission considers that the EU immigration policy needs to reflect the integration of the EU economy and the interdependence of national labour markets, Member States are hardly convinced of the need to forgo their own legislation in favour of harmonised EU rules. As the attempted reform of the Blue Card Directive shows, their reluctance is persistent even for highly skilled workers – arguably the least contentious group of labour migrants. Despite the alleged interdependence of Member States’ economies and labour markets, needs are different from one country to another and labour policies are mostly national. For instance, while Estonia wish to attract investors and start-ups in line with its digital economy policy, Germany experiences labour shortages in highly-skilled occupations and Spain traditionally needs workers in the tourism and agriculture sectors. In that sense, the call for a common labour migration policy is in contradiction with the diversity of labour market situations and employment policies across the EU.
Moreover, while the Commission is trying to build a system that “manages and normalises migration for the long term” (here, p. 1), the paradigm of the EU labour migration policy remains unchanged. The admission of migrant workers continues to be dependent on short-term economic needs and the demand of local employers. In order to “normalise” migration, we should stop seeing labour immigration only as a solution to current socio-economic problems in destination countries. In the future, the EU and its Member States should move towards a more hybrid system, according to which labour migrants are selected in light of different criteria (language, age, past experiences in the destination country, professional experience,…) and not only based on immediate employers’ needs.
To conclude, in the field of legal migration, and labour immigration in particular, not much is to be expected in the months to come since the European Commission – aware of its limited powers – refrained from making new pledges. In order to design new legal pathways, the Commission will need to work closely with the Member States whose disagreements and reluctance to act in common will be the first and the most difficult obstacle to overcome.