Beyond the War for Talent
On the proposed amendments to the Blue Card Directive
Mohammed Sarti
Mw. dr. T. de Lange University of Amsterdam
Abstract
An important breakthrough in the EU’s immigration policy has been the adoption of the Blue Card Directive (2009 BCD). The Directive aims at making the EU more competitive in attracting highly skilled migrants (HSM) from around the world and strengthening the EU’s competitiveness and economy. The Commission has proposed a new BCD (2016 BCD) since the 2009 BCD has failed to achieve its objectives. In the Netherlands, the 2009 BC has been barely used due to competition of the Dutch national permit for HSM, the highly skilled migrant programme (HSMP), which is more attractive. In this thesis, the 2016 BCD has been compared to the 2009 BCD and to the HSMP on its attractiveness for HSM. The 2016 BCD has proven to be much more attractive than the 2009 BCD as a result of the many amendments that have been implemented, like the widening of the scope, lowering of the salary threshold and by granting the HSM a more extensive set of rights. Compared to the Dutch HSMP, the 2016 BCD has overall a slight advantage mainly for the extra rights it grants its holder, such as a more extensive right of intra-EU mobility, easier family reunification and faster qualification for a long-term residence permit.
The 2016 BCD has also been analysed in the light of two theories on highly skilled migration: the war for talent and Beyond Fort Europe. The first theory focusses primarily on the economic benefits a state reaps from attracting HSM, while the latter believes that migration policies should focus on protecting the rights of migrants and reaching a more equal global distribution of welfare. Though the theory on the war for talent and on Beyond Fort Europe differ substantially with regards to their main outlook on good migration policy, there are some overlapping thoughts in both theories. Both theories propagate an open migration policy, integration measures for HSM and little discretion for member states regarding the implementation of Directive. These three elements are still insufficiently present in the 2016 BCD since its scope still excludes a large group of people, no integration measures are required and a lot of discretion has been given to the member states.
Table of content
1. Introduction 4
2. Theories on migration: The war for talent and Fort Europe 7
War for talent 7
Van Houtum and Lucassen: Beyond Fort Europe 9
3. EU and Dutch schemes for highly skilled workers 16
EU framework for highly skilled migrants 16
2009 Blue Card Directive 16
Family Reunification Directive 19
Long-Term Residence Directive 19
Dutch framework for highly skilled migrants 19
Regular residence permit for definite period 20
Mvv 21
Highly skilled migrant programme 21
Comparison 23
4. Proposed amendment to the Blue Card Directive 25
2016 BCD 25
Conclusion 27
5. 2016 BCD and theories on (highly skilled) migration 29
2016 BCD and the war for talent 29
2016 BCD and Beyond Fort Europe 31
Increase solidarity 31 Integrate 32 Flexibilize 33 Differentiate 34 Globalize 34 6. Conclusion 36 7. Annex 39 References 40
1. Introduction
The Maastricht Treaty of 1997 has been a ground breaking agreement by the European Community: it created the three pillars structure and led to the creation of the common European currency. The Treaty also incorporated immigration policy into the intergovernmental third pillar of the Treaty, Justice and Home Affairs, and thereby made it part of the legal framework of the EU. Since then, several directives and regulations have been adopted on the field of (economic) migration1. An important breakthrough in the EU’s immigration policy has been the adoption of Directive 2009/50/EC2, better known as the Blue Card Directive (hereafter: 2009 BCD). This Directive aims at making the EU more competitive in attracting highly skilled workers (hereafter: HSW) from around the world and strengthening the EU’s competitiveness and economy. It introduced a single applicant procedure and a single residence and work permit for highly skilled migrants (hereafter: HSM). Moreover, it gives them a common set of rights, secures their legal status and provides for family reunification.3
In June 2016, the Commission has proposed amendments to the 2009 BCD since the directive has failed to achieve its objectives. According to the Commission, the 2009 BCD has demonstrated weaknesses such as restrictive admission conditions and very limited facilitation for intra-EU mobility. The proposal4 aims to improve the EU’s ability to attract highly skilled third-country nationals (hereafter: TCN), as well as to enhance their mobility and circulation between jobs in different member states.5 The need for the Blue Card (hereafter: BC) to be changed becomes especially obvious when we look at the number of BCs that have been issued. For instance, in 2011 the Netherlands granted 5.980 residence 1 Following the Green Paper on an EU Approach to Managing Economic Migration (COM (2004)811 final), three other Directives on economic migration have been adopted: the so-called Single Permit (2011), the Seasonal Workers and the Intra-Corporate Transferee Directives (both adopted in 2014). For more information, see:
http://ec.europa.eu/dgs/home-affairs/what-we-do/policies/legal-migration/index_en.htm.
2 Council Directive 2009/50/EC of 25 May 2009 on the conditions of entry and residence of third-country nationals for the purposes of highly qualified employment. PbEU 2009, L 155/17
3 Preamble of Directive 2009/50/EC, point 7. Available at http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32009L0050&from=EN
4 Proposal for a Directive of the European Parliament and of the Council on the conditions of entry and residence of third-country nationals for the purposes of highly skilled employment, 7 June 2016, COM(2016) 378 final. Available at
http://www.europarl.europa.eu/RegData/docs_autres_institutions/commission_europeenne/com/2016/ 0378/COM_COM(2016)0378_EN.pdf
permits on the basis of their national procedure for HSM, called the highly skilled migrant programme (hereafter: HSMP), while in the same year zero BCs had been issued.6
In this thesis, we will look into the new Blue Card Directive (hereafter: 2016 BCD) as proposed by the Commission and compare this to the Dutch HSMP to see if the 2016 BCD is indeed capable of attracting more HSM to the EU. Another goal of this thesis is to draw a more normative conclusion on the 2016 BCD. This will be done on the basis of two theories, namely the theory on the war for talent which is strongly linked to highly skilled migration, and the theory of Van Houtum and Lucassen as put forth in their book ‘Voorbij Fort Europa’ (translated: Beyond Fort Europe).
This brings me to the thesis’ main question:
To what extent is the 2016 Blue Card Directive more attractive for HSM than the Dutch highly skilled migrant programme and how could the 2016 Blue Card Directive be improved in the light of the theories of the war for talent and on Beyond Fort Europe? The following sub-questions will to discussed in order to be able to formulate an answer to the main question:
- How do the theories on the war for talent and on Beyond Fort Europe relate to each other?
- How do the current EU and Dutch schemes for highly skilled migration function? - Which amendments to the 2009 Blue Card Directive have been proposed?
- To what extent do the proposed amendments to the Blue Card Directive relate to the theories on the war for talent and on Beyond Fort Europe?
Methodology
The primary sources for this thesis have been literature, reports and EU and Dutch legislation. The first sub-question has been fully answered on the basis of literature. For the description of the war for talent the works of professor Shachar will be use, since she is one of the most prominent academics on this subject. The theory on Beyond Fort Europe will be based the book ‘Beyond Fort Europe’ of Henk van Houtum and Leo Lucassen.
The second and third sub-question are primarily based on EU and Dutch legislation. This is the legal, descriptive part of this thesis and therefor I have focused on the legislation around 6 Report IND 2013, p. 25. Available at https://ind.nl/Documents/Monitor_Kennis_analyse_1.pdf
the BCD and the HSMP. In the third sub-question, the evaluation of the 2009 BCD will also be discussed and reports of EU or EU-related institutions have been used for this part. The 2016 BCD, which still is a proposal and not an official piece of legislation, has be described on the basis of the Commission’s proposal document (COM(2016) 378 final) with references to specific articles of this proposal.
In the last sub-question, the theories of the first sub-question will be applied to the 2016 BCD and this has been done on the basis of the information that has been gathered in the earlier sub-questions. Sources, however, have been used to support the analysis with numerical data. The conclusion of this thesis has been entirely based on information already presented in earlier chapters.
2. Theories on migration: The war for talent and Fort Europe
In this chapter, the theory on the war for talent and on Beyond Fort Europe will be discussed in order to later apply these to the 2016 BCD. This chapter will end by discussing the relation between both theories.
War for talent
The war for talent was initiated in 1998 when McKinsey & Company, America's largest and most prestigious management-consulting firm, published their now-famous report7 proclaiming that “better talent is worth fighting for”.8 The war for talent is driven by the desire of states to attract HSM and thus creating competition among these states. Several factors contribute to the war for talent and hereafter we will focus on four of these factors: 1) global demographic and economic trends, 2) increasing mobility of people and organizations, 3) transformational changes to business environments skills and cultures, and 4) growing levels of workforce diversity.9
Increasing longevity, declining birth rates and the disproportionate size of the post-war baby boomers are demographic factors that influence the war for talent. The EU will face important demographic challenges in the next decades with a rapidly ageing EU population, a progressively shrinking labour force and an increasing old-age dependency ratio. As is also attested in Shachar’s theory, globalization is an important cause of the war for talent. Economic integration across nations has increased and geographic-based economic barriers are falling as states remove legal and regulatory hurdles to international interaction.
Increasing mobility of HSM also leads to an increase of the war for talent. Global labour competition and border mobility are possible with lower migration barriers. Economic and demographic differences between countries and regions also stimulate labour flows such as comparative gaps in wages and differences in labour-force age profiles.
A third factor impacting the war for talent is the shift from product-based to knowledge-based economies. Nearly 71.5% of the jobs in the EU is created by businesses offering services rather than product. This leads to a high demand for workers with higher cognitive ability rises which gives an impulse to the war for talent.
7 Elizabeth G. Chambers, Mark Fouldon, Helen Handfield-Jones, Steven M. Hankin, Edward G. Michaels III 1998, The War for Talent, McKinsey Quarterly
8 Beechler & Woodward 2009, p. 274 9 Beechler & Woodward 2009, p. 275
Lastly, businesses are operating in a more global context and must manage widely dissimilar employee groups, markets, cultures and modes of work. The level of ethnic, cultural, generational and gender diversity of individuals working within a single organization and indeed, within a single office, is increasing.10
Taken together, all of the factors discussed above form a rapidly changing, incredibly complex and diverse global environment for states to attempt to attract, develop, motivate and retain HSM. If we look at the factors that influence the war for talent than there are multiple measures available to meet the national demand for HSW: both internal and external measures. An example of an internal measure would be to stimulate businesses to retain and utilize older experienced workers and it could stimulate HSW to keep working for a longer period by, for instance, raising the retirement age.11 An external measure would be to attract more highly skilled TCN through attractive migration policies. In this thesis, we will focus on the external element of competitive migration regimes.
According to Shachar12, the existence of the war for talent is partly related to the rise of the global information economy and the corresponding labour (and skills) shortage. However, most theories on (highly skilled) migration are incomplete according to her since these theories treat national immigration policies as a purely economic and domestic affair.13
The war for talent, however, is characterised by two other elements, namely interjurisdictional competition and the talent-for-citizenship exchange. The interjudisdictional competition leads to reciprocal causation which means that the adoption of certain admission policies in one state affect the policies of another state. In practice there are many states competing for HSM and these states continuously adopt new policies which lead to a complicated and dynamic set of interactions in which the domestic policies of multiple states
10 Beechler & Woodward 2009, p. 275 – 277 11 Beechler & Woodward 2009, p. 276
12 Shachar focusses primarily on the state as central actor in the war for talent and migration policy as its core weapon. Other authors taking on a similar position are M. C. Ewers in his article
‘Migrants, markets and multinationals: competition among world cities for the highly skilled’ (2007) and R. Florida in his work ‘The flight of the creative class: the new global competition for talent’. There are, however, also other perspectives from which the war for talent can be analysed. See for example ‘Using Corporate Social Responsibility to Win the War for Talent’ by C.B. Bhattacharya, S. Sen and D. Korschun and ‘The War for Talent’ by E. Michaels, H. Handfield-Jones, B. Axelrod on the war for talent from the perspective of businesses.
become entangled.14 In this new and highly competitive global environment, national policymakers must increasingly engage in a multilevel game n devising their immigration policies, leading to competitive immigration regimes.15 Across the globe, countries are fiercely trying to outbid one another in an effort to attract extraordinary talent to their respective national shores. In this competitive environment, countries have come to realize that their exclusive control over the assignment of membership goods is a major draw. This realization has turned citizenship itself into an important recruiting tool.16 This use of the control over citizenship rights by states for the purpose of attracting HSM is described by Shachar as the talent-for-citizenship exchange.17
A core insight to be drawn from the war for talent is that the discussion around migration and globalization can no longer center around the open versus closed borders dichotomy. All countries simultaneously engage in both opening and closing their borders, but do so selectively by indicating who is deemed desirable and and who is viewed as “unwanted”. In the case of the BCD, this element can also be recognised in the scope of the Directive. Openness is shown to migrants falling within the BCD’s scope, while others will hit on a closed door when seeking to enter the EU on the basis of a BC.18
Van Houtum and Lucassen: Beyond Fort Europe
Another view on immigration policies has been created by the authors Van Houtum and Lucassen in their book Beyond Fort Europe. In this book they propose a ten-point plan as an alternative to Fort Europe in the context of the migration of asylum seekers. This ten-point plan, however, sets general standard to which any immigration policy should comply in order to be efficient and sustainable. These standards can also be applied to the migration of HSM. However, not all points are as relevant to highly skilled migration as other and it would be impractical to apply all ten points to the 2016 BCD. Therefor only five of the ten points will be discussed.
Van Houtum and Lucassen analyse the problems caused by the influx of asylum seekers into Europe in recent years as a consequence of the war in Syria, instability in the Middle East and 14 Shachar 2006, p. 162
15 Shachar 2006, p. 155 16 Shachar 2011 p. 2102 17 Shachar 2006, p. 164
poverty in particularly Eastern Africa. They especially focus on the negative attitude of state governments and the European Union towards these migrants. In April 2015 the European Commission proposed a ten-point plan with the goal of preventing further inflow of asylum seekers into the member states of the EU. The EU regards the influx of refugees as a flood that needs to be restrained. This approach towards migration by the EU is causing human rights violations and social resistance towards taking in refugees. Creating legal and physical barriers that make it nearly impossible for asylum seekers to reach Europe leads to a paradoxical situation in which the only way of receiving a legal status as refugee in Europe is by illegally crossing its borders. This legal and sometimes even physical (for instance the fences around Ceuta) fortress that is build around the EU has caused many people to dangerously risk their live in order to reach Western European states and with this the business of human trafficking is flourishing.19
By carefully examining the history of Europe from the mid 19th century until now, Van Houtum and Lucassen show the lessons that can be learned from previous mass inflow of refugees. Additionally, the EU looks insufficiently at the opportunities and positive effects that flows of migration can carry with them. For this reason, Van Houtum and Lucassen drafted their own ten-point plan on which any policy regarding migrants should be based. This plan is based on the idea that both the refugees as the receiving state can benefit from granting asylum to (large numbers of) refugees.20
Refugees and HSM are of course different types of migrants, since the reasons for settlement are different. However, the ten-point plan is about more than specifically refugees and sets general standards to which migration policies could adhere in order for both parties to profit optimally from the presence of migrants. For this reason, the ten-point plan could also be applied to the 2016 BCD in order to review its effectivity in attracting and profiting from HSM. Below the relevant points of the ten-point plan will be explained and in a later chapter they will be applied on the case of the 2016 BCD.
19 Van Houtum & Lucassen 2016, p. 7 – 9 20 Van Houtum & Lucassen 2016, p. 117
Increase solidarity: This point emphasizes the need of internal solidarity21 22 in the EU between member states is important for an effective European migration policy. This means that in the case of undesired migration member states cooperate in such a way that a fair distribution of migrants is being reached instead of placing the burden solely on a few member states.23 On the other hand, this also means that in the case of desired migration member states are not competing with one another but instead create a level playing field. Solidarity can also refer to solidarity of the EU and its member states with third countries, for instance with the countries of origin of HSM. Attracting many HSM to the EU could lead to a serious brain drain in other states, while it is also possible to think of positive consequences for the countries of origin when their HSW move to the EU. More on this subject will be put forth when applying the theory on Beyond Fort Europe to the 2016 BCD.
Integrate: The procedure for applying for a residence permit can often be a lengthy process
and this prevents migrants from immediately starting to integrate into the new society and be of benefit to it. States should minimize the waiting times and quickly grant migrants the right to for instance work, to education and to volunteer. This is in the interest of both the migrant as the receiving state since he or she can participate and for a shorter time be dependent on the social system.24 Van Houtum and Lucassen link integration to fast and efficient application processes. It can also be viewed as containing a social element that is more in accordance with the common definition of integration. In the case of HSM, it would be interesting to assess whether the BCD contributes to the creation of fast and efficient procedures and to the social integration of its holders.
Flexibilize: The member states of the EU should draft a proactive and flexible labour
migration policy of which both the migrants and the EU at large benefit from. Currently a ‘no, unless’-policy applies to labour migration, even though there are good reasons to take on a more inclusive ‘yes, provided that’-policy that also grants labour migrants more freedom
21 Solidarity between member states is a duty under the EU legal order. Already in 1973, the ECJ in its case 39/72 stated the following in paragraph 25 of the ruling: “This failure in the duty of solidarity
accepted by Member States by the fact of their adherence to the Community strikes at the fundamental basis of the Community legal order”
22 See ‘Solidarity in the EU’ by A. Sangiovanni for more information on solidarity as an EU-principle.
23 Van Houtum & Lucassen 2016, p. 135 – 136 24 Van Houtum & Lucassen 2016, p. 137 – 140
and rights. This means a shift from irregulatory closeness to a system of regulated openness. Van Houtum and Lucassen give five arguments in favour of such an open system.
First of all, openness is required in order for the legal framework to match the practical reality. European economies and labour markets are – in the globalized world we live in – dependent on the markets across our own borders. Two other arguments are that years of research show that protectionism and immigration quota are inefficient and that an open labour market is more capable of responding to shortages on the labour market and aging populations. A fourth point is that a flexible labour market can lead to a more equal global distribution of welfare and this leads to a larger output market for the EU. The last argument in favour of an open European labour market is that freer access to the labour market in the European Union also is a social emancipating project. It grants individuals equal chances, regardless of their place of birth. On national level, these differences in chances based on place of birth would never be accepted, but internationally this is the unchallenged standard.25 This point is elaborated most on in the theory on Beyond Fort Europe. When applying this point to the 2016 BCD later, we will look into the scope and admission criteria to determine to what extent the Commission’s proposal is line with this point.
Differentiate: According to Van Houtum and Lucassen, the EU should create a system that
promotes a gradual construction of rights and social benefits for migrants. This way the national systems of social security will be able to cope with the influx of (lager numbers of) migrants. The eventual goal, however, should be that these migrants receive the same rights as nationals of the state that they are in.26 According to the authors the rights need to be acquired gradually and later in this thesis we will ascertain whether this is the case for the 2016 BCD.
Globalize: In the view of the authors, any migration policy should be a step towards a global,
coordinated policy for migration. Especially since migration in its core is not a national affair, the aim for national or regional migration policies should be to reach, through further international collaboration, one global policy in which all individuals are treated equally. This requires more than merely applying global criteria for applications for residence permits; the unequal the distribution of welfare should be tackled and more (financial) support should be
25 Van Houtum & Lucassen 2016, p. 140 – 150 26 Van Houtum & Lucassen 2016, p. 150 – 152
offered to solve international conflicts.27 The 2016 BCD is a uniform legislative act applying to almost all member states so it would be easy to suggest that its is accordance with this point of the ten-point plan. However, some nuances should be made on the 2016 BCD’s global aspect and these will be discussed in chapter 5 of this thesis.
A note, however, needs be made on the terminology as used by the authors. According to the book, the EU policy of Fortress Europe clashes on significant parts with human dignity and human rights and this is for instance illustrated by the deal with Turkey28 which they describe as a morally and legally turbid deal. Turkey is not a democracy with a independent judiciary or press freedom and asylum seekers don’t have access to basic civil rights, like education, housing and financial support.29 However, do these circumstances cause violations of human rights? The authors use the term human right quite freely30 without sufficiently explaining which specific human rights are infringed by the EU’s migration policy. The human rights the authors probably referring to are the economic, social and cultural (ESC) rights as codified in the International Covenant on Economic, Social and Cultural Rights31 (ICESCR). Examples of ESC rights as are mentioned by Van Houtum and Lucassen in relation to the Turkey deal are the right to education (art. 13 ICESCR) and the right to an adequate standard of living, including housing (art. 11 ICESCR). Questions could indeed be asked about whether refugees in Turkey are capable of fully enjoying these human rights as granted to them by the ICESCR.
However, an important distinction should be made between two forms of human rights: the ESC rights on the one hand and civil and political (CP) rights on the other. The Universal
27 Van Houtum & Lucassen 2016, p. 152 – 156
28 The Turkey deal refers to the agreement that was reached between the EU and Turkey on 20 March 2016 on limiting the influx of irregular migrants entering the EU through Turkey. A central aspect of the deal is to return any irregular migrant who is found to have entered the EU through Turkey without having undergone an asylum application procedure. Human rights groups have strong criticism about the deal, with Amnesty International accusing the EU of turning "its back on a global refugee crisis".
29 Van Houtum & Lucassen 2016, p. 108 – 109
30 In its chapter “Human rights under Pressure” (p. 108 – 113) Van Houtum and Lucassen use the term “human rights” a total of eight times.
31 The International Covenant on Economic, Social and Cultural Rights is a
multilateral treaty adopted by the United Nations General Assembly on 16 December 1966 as Resolution 2200. The ICESCR is part of the International Bill of Human Rights, along with the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights (ICCPR).
Declaration of Human Rights32 (UDHR) lists some of these CP rights, like the right to life and liberty (art. 3 UDHR), prohibition of torture (art. 5 UDHR) and freedom of thought and expression (art. 19 UDHR). The legal nature of the CP human rights (negative obligation for a state to refrain) and ESC rights (positive obligation for a state to promote) differ substantially. While a state is obligated to realise the first immediately, the latter are subject to progressive implementation of core minimum obligations33.34 Especially in the case of a sudden mass influence of refugees, a state can fall back on this core minimum obligation it has to gradually implement these ESC right to the maximum of its resources. It is, therefor, impossible to state without reservations that the EU’s migration policy conflicts with human rights.
If we look at the ten-point plan that the authors propose, it is hard to see how this plan could protect from human rights violations. Flexibilizing, differentiating, globalizing, integrating or showing solidarity are marginally contributing to the protection of ESC rights and, if they do contribute, stimulate these ESC rights indirectly. For instance, integrating could lead to migrants being able to enjoy their right to work (a ESC right according to art. 6 ICESCR) sooner due to faster application procedures or provisions that make it possible to take on a job awaiting the decision on their application.
This, however, does not mean that the ten-point plan of Van Houtum and Lucassen is irrelevant. Human rights set a minimum guarantee for people to the most basic freedoms and rights. The writers based their ten-point plan on their view on what a just and fair migration policy in accordance with the core values of the EU35. The theory on Beyond Fort Europe would be stronger if Van Houtum and Lucassen would have evaded the use of the term human rights and instead would have focussed more on the terms just and/or values. The points as presented in Beyond Fort Europe could help to critically scrutinize the EU’s
32 The Universal Declaration of Human Rights was adopted on 10 December 1948 as Resolution 217.
33 See the General Comment 3 of the Committee on Social, Economic and Cultural Rights, §10. In short the Committee made it clear that, at the very least, states are under the obligation to ensure the satisfaction of the minimum essential levels of each ESC right.
34 Banktekes & Oette 2013, p. 366 – 367
35 These values are, for instance, codified on multiple occasions in the Treaty on the European
Union (TEU). In its preamble and art. 2 TEU, the founding values of the EU are described as respect
for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities.
migration policy, no on its accordance with human rights, but whether it is in line with the general values the EU society attaches importance to.
Relation war for talent and Beyond Fort Europe
The main similarity between both theories can be found in the openness of the labour migration policy that both theories take great importance to. The immigration policy should be flexible and favourable to the migrant. Both theories believe that openness of a state(’s labour market) will lead to positive effects, like a swift reaction to labour shortages or solve the issue of aging populations. In the case of the war for talent, this openness is however a bit paradoxical. Great openness is shown towards HSM, but full closeness to other groups which are viewed as “less talented”. Another similarity is the need to integrate migrants. According to Beyond Fort Europe, integration measures would lead to a more sustainable migration policy. The war for talent does not express its position towards integration as explicitly as is done by Van Houtum and Lucassen. However, the goal of the war for talent is to attract and retain HSM, and integration could be a way to retain HSM to the host country. Integration requirements as part of the admission criteria of a BC would, however, be incompatible with this theory since it would mean an extra hurdle for the HSM to locate in a state, but integration measures after entry could probably correspond with the war for talent.
Probably the most fundamental difference between the two theories is their position on what a good immigration policy should aim at. The war for talent is primarily focused on economic development and how the receiving member state can benefit economically from the inflow of certain groups of migrants. The theory on Beyond Fort Europe, however, is mainly focussed on fairness and sustainability, and how immigration policies can contribute to a more equal world. The theory on the war for talent views immigration policy from a state’s perspective, while Van Houtum and Lucassen take on a more global perspective. This difference is also illustrated by the fact that the war for talent leads to states competing while Beyond Fort Europe seeks for a globalized policy with solidarity between nations as a core principle. Another important difference is that the war for talent promotes the exchange of citizenship for the influx of talented migrants which offers migrants a large set of rights without a gradual building up of rights. A gradual construction of rights leads, according to Van Houtum and Lucassen, to sustainable migration and takes away the breeding ground for populist and anti-migration groups.
In conclusion, the theory on the war for talent and on Beyond Fort Europe show fundamental differences as a result of their perspective on who or what immigration policy must serve, but do share some common ground when it comes to open migration policy and integration measures.
3. EU and Dutch schemes for highly skilled workers
In this chapter the EU and Dutch schemes for HSM that currently apply will be described. A HSM has two options when intending to take on a job in the Netherlands while also wanting to be acknowledged as such: either apply for the 2009 BC or apply for the national HSMP.36 Both types of residence permits grant its holder the right to reside and work in the Netherlands under certain conditions and when certain criteria are met. In order to eventually make a good comparison, an overview will be given from the scope, procedural safeguards, admission criteria, refusal and withdrawal grounds, and attained (social) rights of both systems. First, the EU system for highly skilled migration will be discussed and then the Dutch framework. Then the two systems will be compared with each other.
EU framework for highly skilled migrants
There are several EU regulations and directives that apply to a HSM when a migrant intends to take on a highly skilled job in the EU or that can be relevant to the HSM after receiving a working permit in a member state. The most important one is, of course, the 2009 BCD. Other frameworks that will be explained on their relevant parts, are the Family Reunification Directive37 (hereafter: FRD) and the Long-Term Residence Directive38 (hereafter: LTRD).
2009 Blue Card Directive
According to art. 3 sub 1 BCD all TCN who apply to be admitted to a member state’s territory for the purpose of highly skilled employments fall within the scope of the 2009 BCD. Relevant are the terms ‘TCN’ and ‘highly skilled employment’. Art. 2 sub a BCD defines TCN as any person who is not a citizens of the EU within the meaning of article 20 sub 1 TEU (ex art. 17 sub 1 TEC). This means all nationals of the member states cannot apply for a BC and this is a logic decision since they already enjoy the right to free movement of labour which grants more rights than the BCD. Sub 2 of art. 3 BCD excludes certain groups of people from its scope, among others beneficiaries of international protection (refugees), seasonal workers and holders of a LTR permit.
36 See art. 3.4 sub 1 Vb for an overview of the different purposes of stay under which a residence permit for a definite period could be requested. Point d and e of this article are referring to the HSMP and the BC. Depending on their situation, a HSM could also chose to apply for a residence permit under the purpose of stay as scientific researcher (point j) or as intra-corporate transferee (point g). 37 Council Directive 2003/86/EC of 22 September 2003 on the right to family reunification, L 251/12 38 Council Directive 2003/109/EC of 25 November 2003 concerning the status of third-country nationals who are long-term residents, L 16/44
The term ‘highly qualified employment’ is defined in art. 2 sub b and the three main characteristics are 1) exercise of genuine and effective work under the direction someone else, 2) a salary, and 3) higher professional qualifications. This third vague term is further explained in sub g and h of this same article. Higher professional qualifications can be reached through higher education qualification which can be proven by any diploma issued by a competent authority attesting the completion of post-secondary higher education programme that lasted at least three years. A member state can also choose to derogate from this rule and include migrants with five years of relevant professional experience of a comparable level to higher education qualifications. This means only highly educated migrants in principle can apply for a BC and leaves further expanding of the scope up to the member states.
The provisions on the application procedure leave a lot of discretion. A member state can decide whether the employer or/and employee need to file the application (art. 10 sub 1 BCD) and whether the HSM can reside in the member state during the examination of his application (art. 10 sub 2 – 4 BCD). According to art. 11 sub 1, the maximum period for a decision by the authorities is a maximum of 90 days, but the member states can decide for themselves what consequences exceedance of this deadline will have. In the analysis of the 2016 BCD in chapter 5, this discretion of the member states will be valued in the light of the theory on the war for talent and Beyond Fort Europe.
The admission criteria for a BC are laid down in art. 5 BCD. The migrant needs to present a valid work contract or binding contract offer of at least one year (sub 1a) and documents attesting the relevant higher professional qualifications (sub 1b). The migrant also needs to be in the possession of a valid travel document or a visa, depending on national law (sub 1d). The migrant also should not pose a threat to public policy, security or health (sub 1f). Whether a migrant is a HSM is also dependent on the salary that the he will earn in the member state. Sub 2 states that the annual annual salary should be at least 1.5 times the average gross salary in the member states concerned. This salary threshold can be lowered by a member state to 1.2 times the average gross salary for professions which belong to the major group 1 and 2 of ISCO39 experiencing a shortage in HSM. This means only shortages
39 The ISCO provides for a system for classifying and aggregating occupational information obtained by means of statistical censuses and surveys, as well as from administrative records.
of managers (major group 1) and professionals (major group 2) can lead to a lower salary requirement.
A member state has to refuse handing out a BC if the admission criteria of art. 5 are not met (art. 8 sub 1BCD).40 Sub 2 gives the member states the possibility to examine the situation of their labour market and, on the basis of this examination, reject the application for a BC or the renewal of a BC (only in the first two years). According to art. 8 sub 3 jo. art. 6 BCD, a member state can also set a maximum volume of admission of TCN and refuse to hand out BCs if this maximum is reached. An application can also be refused if the employer of the HSM has sanctioned for undeclared work or illegal employment.
A member state must according to art. 9 sub 1 BCD withdraw or refuse to renew a BC when 1) it has been fraudulently acquired, 2) the admission requirements are no longer met and 3) the holder does not respect the limitations that are part of the BC. A member state may withdraw or refuse to renew a BC for reasons of public policy, security or health and when the BC holder does not have sufficient recourses to maintain himself.
Regarding social security, art. 14 BCD states that BC holders shall enjoy equal treatment with nationals of a member state. This means that a BC holder will have the same social security rights as any other citizen. However, unemployment of at least three months can be a reason for withdrawing the BC and this makes the use of the social security system of the member state unattractive for the BC holder. The BC is only valid in the member state where the application was filed and accepted and according to art 18 BCD it is possible for a BC holder to move to another member state for the purpose of highly skilled employment after 18 months of legal residence in the first member state. The employee or employer (depending on national law of second member state) then needs to apply for a new BC in the second member state before entering or within one month from entering the second member state. The application then is reviewed through the admission criteria of art 5 BCD.
According to art. 15 BCD, the FRD applies to the family members of a BC holder and according to art. 16 BCD, the LTRD applies to the BC holder when he applies for a LTR permit. These directive will be discussed separately below.
40 See ECJ Ben Alaya v. Germany (C-491/13) in which the Court determined that member states are not allowed to set additional requirements.
Family Reunification Directive
The FRD determines the conditions under which family reunification is granted to TCN residing lawfully on a member state’s territory. The BC holder is the sponsor since it’s him who resides lawfully in the member state and applies for reunification with his family residing outside of the member state. The 2009 BCD sets more favourable conditions under which the right to family reunification is possible. Art. 15 sub 2 – 8 BCD contain derogations from the FRD which make it easier and more favourable for BC holders to reunite with their family. For instance, BC holders do not need to have a reasonable prospect of the right of permanent residence and do not have to fulfil a minimum period of residence (sub 2). Another important deviation from the FRD is that integration measures and conditions may only be applied to family members after reunification has been granted (sub 3). Furthermore, the maximum period of the application procedure for family reunification by BC holders is shortened to six months and they have immediate access to the member state’s labour market (sub 4 and 6).
Long-Term Residence Directive
The purpose of the LTRD is twofold: it creates a right to permanent residence after five years of legal residence in the EU, which leads to 1) strengthened protection against expulsion and 2) a (rather limited) right to settle in another member state. Like the FRD, the LTRD only applies to TCN residing lawfully in one of the member states of the EU. A TCN will have to meet several criteria to successfully apply for a LTR permit. The central criteria are laid down in art. 4 sub 1 LTRD and says that the TCN should have resided legally and continuously within the member state’s territory for five years. The 2009 BCD again sets more favourable conditions for BC holders and these are listed in art. 16. The period of five years can be reached by adding the consecutive periods in different member states in which the TCN was holder of a BC and the two years prior to holding the BC in which the TCN was residing legally in the member state (sub 2). The period that a TCN can reside outside of the member state is doubled from 6 months to 12 months (sub 3). On the basis of art. 9 sub 1 c LTRD, a member state can withdraw a LTR permit after the TCN has been absent from its territory for longer than 12 months and this period is extended to 24 months for BC holders (sub 4).
Dutch framework for highly skilled migrants
If a HSM decides to apply for the HSMP instead of the 2009 BC, then there are multiple Dutch legal frameworks that apply to TCN. Dutch migration law consists of different layers of legislation. First of all, since immigration law is part of administration law, the provisions of the Algemene wet bestuursrecht (Awb) – legislation containing general rules of administration law – apply to the immigration procedures. The Alien Act, Vreemdelingenwet (Vw), contains more specific laws on the position of non-Dutch inhabitants and lays down the general criteria and procedures of the Dutch migration system. The Awb is the lex generalis and the Vw is the lex specialis. The legislator has made many exceptions in the Vw compared to the Awb with regards to the decision, objection and appeal term. The legislation laid down in the Vw is further elaborated on in the Alien Decree, Vreemdelingenbesluit (Vb), and in a ministerial act, the Voorschrift Vreemdelingen (VV). Finally, the
Vreemdelingencirculaire (Vc) contains policy rules on how the authorities should use their
competences.
When it comes to labour migration, there is also another relevant source of legislation: the
Wet arbeid vreemdelingen (Wav). It contains a few conditions which should be met in order
to take on a job and the Wav is further elaborated on in the Besluit uitvoering Wet arbeid
vreemdelingen (Buwav).
Regular residence permit for definite period
The Vw makes a two-part extinction between an asylum residence permit on the one hand and a regular residence permit on the other hand. The regular residence permit is granted in all other purposes of residence other than asylum, like family reunification, study, medical treatment and, of course, employment. A strict distinction between both types of residence permits is made. Hereafter, we will merely discuss the regular residence permit for reasons of employment.41 The regular residence permit is can also be distinguished in regular residence permit for definite period and for an indefinite period. A migrant first receives a permit for definite period and after five years the migrant can apply for a permit for indefinite period. This last permit does not have to be periodically renewed and is harder to repeal for the authorities. The HSMP is a regular residence permit for definite period.
Article 16 Vw lists a total of eleven reasons to decline an application for a residence permit for definite period. One of the most important is when a migrant does not hold a valid mvv, which is like a visa but not entirely the same. A migrant needs to be in the possession have an mvv before applying for the HSMP.
Mvv
The machtiging tot voorlopig verblijf (mvv) grants the right to enter en reside when a TCN wants to settle in the Netherlands and meets the criteria to do so. The same criteria have to be met for the mvv as for the residence permit that the migrant wants to apply for. The mvv is for this reason linked to a certain purpose of stay. According to art. 16 sub 1 a Vw can an application for a residence permit for definite period be denied if the migrant does not have a valid mvv that is in line with the purpose of stay of the requested residence permit. However, art. 17 sub 1 Vw gives multiple situations in which an application cannot be denied when the migrant does not have a valid mvv, for instance if the migrant is a citizen from one of the listed countries in appendix 2 of the VV.42
According to art. 16 sub 1 (g) Vw, the migrant must also meet the qualifications related to the purpose of stay. All other criteria as listed in art. 16 sub 1 Vw are the same for each migrant applying for a regular residence permit for definite period, whether the migrant wants to stay in the Netherlands for study, labour, entrepreneurship or any other reason (except for asylum). For each purpose of stay there are different qualifications determined by the legislator that have to be met and it is from this point that there is also difference in the Dutch procedure when applying for a BC or the HSMP. For the 2009 BC, the criteria have already been discussed above and below an an overview will be given of the criteria that have to be met in order to be eligible for receiving a permit on the ground of the HSMP.
Highly skilled migrant programme
Art. 3.4 Vb contains nineteen purposes of stay on the basis of which a regular residence permit for definite period can be granted. All these purposes relate to different qualifications that have to be met in order for the application not to be declined on the basis of art. 16 sub 1 (g) Vw. Art. 3.4 sub d Vb mentions “labour as highly skilled migrant” as a purpose of stay on the basis of which a residence permit can be granted. This permit is the HSMP.
42 The nationals of the following countries are exempted from the mvv requirement: member states of the EU, member states of the EEA, Australia, Canada, Japan, Monaco, New Zealand, Vatican City, United States, South Korea and Switzerland.
The HSMP applies to TCN wanting to take on a highly skilled job in the Netherlands. In contrast to the 2009 BCD, the HSMP does not define the term ‘highly skilled employment’ but links it to the admission criteria. If the criteria are met, then the TCN is regarded as a HSM who qualifies for a residence permit.
For the decision by the competent authorities applies a maximum period of 90 days and can be extended for a maximum period of six months. The application for the mvv and the permit on the basis of the HSMP need to be filed at the same time. Since the mvv and permit are requested at the same time, it is not possible to await the decision in the Netherlands since an mvv is necessary to enter the Netherlands. The employer needs to apply for the permit and this cannot be done by the HSM. The employer needs to be a recognised sponsor according to art. 3.30a Vb. This way the employer is already approved by the competent authorities and this leads to a faster processing time of an application. The employer can file a request to become a recognised sponsor according to art. 2c. Art. 2e lists grounds for refusal, for instance lack reliability, insufficient guarantee of continuity and solvability of the enterprise. The admission criteria are laid down in art. 1d sub 1 Buwav. The HSM must be in the possession of a valid travel document and of a work agreement with his sponsor. The minimum duration of the work agreement is set on three months.43 The income requirement of the HSM depends on his age. Employees younger than 30 years must earn at least € 3.170 a month and a HSM older than 30 years has to earn at least € 4.324 per month in order to be eligible for the HSMP. If the application is approved, then the permit will be granted for the duration of the work contract with a maximum of five years and can, after expiring, be renewed for a maximum period of five years (art. 3.58 sub 1 e Vb).
Not holding a mvv is only one of eleven reasons for the administrative body to refuse to hand out a residence permit. Art. 16 sub 1 Vw also lists ten other grounds on which a regular residence permit for definite period can be denied. Paragraph c demands, for instance, that the migrant independently needs to have sustainable and sufficient resources of livelihood. The meaning of this criteria is further explained in articles 3.73, 3.74 and 3.75 Vb. Since HSM are offered a (well-paid) job in the Netherlands they generally meet this criterion. Most
other criteria in article 16 are relatively easy to meet.44 The sponsor’s application can also be denied if the migrant poses a threat to public order or national security (sub d), or is he has resided in the Netherlands illegally (sub j).
Art. 18 sub 1 Vw gives grounds on which the authorities can decide to reject to renew the permit of the HSM. Grounds are for instance if the migrant’s main residence is located outside of the Netherlands (sub a) and if the migrant does not meet the admission criteria anymore.
Since the HSMP is a national permit, it is not able to grant its holder the right to EU mobility. HSM making use of the HSMP are also able to apply for family reunification and a LTR permit on the basis of respectively the FRD and the LTRD. Both directives apply to all migrants whose family live outside of the member state in which they are residing and this also to a holder of a permit on the basis of the HSMP.
Comparison
The scope of both permits differs substantially. The 2009 BC in principle only is available to highly educated migrants who have completed at least a bachelor or something comparable. In the case of the HSMP the scope is much wider. All TCN can apply for a permit as long as they meet the admission criteria (salary threshold, work contract etc.) under the condition of the employer being a recognized sponsor. The narrow scope of the 2009 BCD leads to a situation in which many HSM who have years of professional experience or who are in demand but do not meet the standard of ‘higher education qualification’ are not able to apply for a BC even though they might be of great value to the EU’s economy and businesses. The maximum decision period is equal for both schemes. However, the HSMP demands of the employer that it must register as a recognised sponsor and this leads to a quicker decision on the application. The 2009 BCD does not offer this opportunity.
On the admission criteria, the HSMP is also more favourable compared to the 2009 BCD. The main difference is in the qualifications that need to be met related to the purpose of stay. The required income minimum is one of the biggest difference between both types of HSM permit and if we look at the statistics on the age of BC applicants in Germany, it shows a 44 Zwaan e.a. 2016, p. 115 – 123
possible cause of the unpopularity of the BC in the Netherlands. In 2013 around 75 % of the applicants were between the age of 18 and 35 years. 45 This shows that most HSM coming to the EU, and thus to the Netherlands, are relatively young. The HSMP makes a distinction between HSM younger than 30 and migrants older than 30 years. As employer of a young HSM, this means that in order to successfully apply for a national permit you have to offer the migrant a salary of at least € 3.107 a month and for a BC the salary offer should be at least € 5.066 a month (1.5 times average gross income). This is a difference of almost 60 %. A few other differences can be found between the two permits. In order to receive a BC, the employer must offer the HSM a contract for at least a year. In the case of the HSM permit, no such requirement exists. The national permit therefore would generally be more attractive for employer since it gives them the possibility to offer the migrant a contract for a shorter period.
The grounds on which the granting of a BC or HSMP permit can be rejected do not differ substantially from each other. A potential difference, however, is if a member states makes use of the possibility to exercise a labour market test (art. 8 sub 2 BCD). This possibility only exists in the 2009 BCD and not in the Dutch system.
When it comes to rights, both systems provide the HSM with a comparable set of rights. In both systems the principle of equal treatment to other citizens applies. The 2009 BCD offers a BC holder the – limited - right to EU mobility while the HSMP does not. Another difference can be found in family reunification and LTR permit. Both the FRD and LTRD apply to both types of schemes, however the 2009 BCD makes derogates on certain parts from the directives and sets more favourable standards for a BC holder in comparison to other migrants.
In short, the HSMP is on most aspects more attractive compared to the 2009 BCD. The scope is wider, the procedure is more efficient and therefor more HSM can apply to the HSMP and the admission criteria are more favourable: a lower salary threshold, no minimum duration of contract etc. The refusal grounds and rights of the permit holder are in both systems quite 45Communication from the Commission to the European Parliament and the Council on the implementation of Directive 2009/50/EC on the conditions of entry and residence of third-country nationals for the purpose of highly qualified employment, COM(2014) 287 final, p.3,
Available at http://ec.europa.eu/transparency/regdoc/rep/1/2014/EN/1-2014-287-EN-F1-1.Pdf
similar with the exemption of family reunification and long term residence which is – slightly- more favourable for a BC holder.
4. Proposed amendment to the Blue Card Directive
The 2016 BCD will be the central object of analysis in this chapter. In the previous chapter some of the problems regarding the 2009 BCD have already been mentioned. In this chapter, an overview will be given of some of the most important amendments, before drawing a conclusion on what effects the amendments could have on the functioning of the BC.
2016 BCD
The proposal of the Commission46 consists of many amendments to the 2009 BCD. During the evaluation of the 2009 BCD47, certain deficits of the Directive were pointed out. In this subchapter an overview of the following four amendments will be give: 1) the scope of the directive, 2) the possibility of parallel national schemes for HSM, 3) intra-EU mobility, and 4) the salary threshold.
Firstly, the scope of the 2016 BCD is broadened in order to include a lager number of HSM that could apply for the BC. The limited scope of the directive was one of the main points of criticism. The 2016 BCD makes it possible in art. 3 jo. 2 2016 BCD for individuals who have completed the equivalent of a bachelor degree as well as those who have at least three years of relevant professional experience to apply for a BC. The Commission also proposes to extend the scope of 2016 BCD in order to include highly skilled beneficiaries of international protection. Recognised refugees already have access to the domestic labour market, but being a BC holder would grant them rights associated with the BC. By widening the scope of the Directive, the potential group that can apply for a BC also increases. However, this does not solve the intrinsic weaknesses that the 2009 BCD has shown and without solving these, it is questionable if more HSM would prefer the BC above the national alternative.
46 The legislative proposal was published on 7 June 2016. It falls under the ordinary legislative procedure, also known as the co-decision procedure (art. 289 and 294 TFEU). The Commission has the right of legislative initiative and the Council and the European Parliament both need to approve a legislative act in order for it to be adopted.
47 The main findings were that 80% of the stakeholders thought the scope was to narrow; 44% believed a fast-track procedure should be introduced; and 53% of the respondents though parallel national scheme should be abolished. See the following document for the report of the full evaluation:
Briefing of the European Parliament on the revision of the Blue Card Directive, EPRS
BRI(2017)603942. Available at
http://www.europarl.europa.eu/RegData/etudes/BRIE/2017/603942/EPRS_BRI %282017%29603942_EN.pdf
Secondly, it was possible for member states to have a national alternative of the BC to which HSM can apply. In the Netherlands, there is of course the HSMP which is the primary reason for the low number of granted BCs in Netherlands. Absence of a national scheme would give the HSM no alternative which would most probably lead to an increase in issued BCs. Therefore, the Commission proposes in art. 3 sub 4 2016 BCD to ban parallel national schemes targeting the same group of HSM as the 2016 BCD. This would mean for the Netherlands, that the domestic HSMP should be repealed. However, this also does not solve the intrinsic problems of the 2009 BCD. HSM wanting to work in the Netherlands could only apply for a BC, but if this BC does not function properly than they might choose to stay put or migrate to a state outside the EU. The 2016 BCD aims at making the EU more attractive for HSM, and only widening the scope or banning parallel national schemes does not contribute towards this goal.
Thirdly, the Commission proposes to increase intra-EU mobility for BC holders in order to make the permit more attractive. Under the 2009 BCD it was not possible to move to another member state for the purpose of labour: a new labour permit in the second member state was necessary. The 2016 BCD makes short-term business trips less complicated for holders of a BC by allowing business trips up to 90 days within the EU member states that apply the BC without the need of a new labour permit according to art. 19 2016 BCD. Since Ireland, United Kingdom and Denmark have opted out of the BCD, the HSM does need a new work permit in these three states.
Lastly, the salary threshold in the Commission’s proposal is also lowered. The previous salary threshold was indicated as one of the main reasons for unpopularity of the 2009 BCD. According to art. 5 sub 3 2009 BCD the salary of a HSM should be at least 1,5 times the average gross annual salary in the concerned member state. The new salary threshold is fixed between 1 and 1.4 times the average gross annual salary in the member state concerned (art. 5 sub 2 2016 BCD). The implementation of the proposal is therefor important for the practical outcome of this amendment. If the Dutch legislator choses to fix the salary threshold on 1 times the gross annual salary, then this means a HSM should earn at least around € 3377. This is only a relatively small amount more than the national threshold for HSM younger than 30 (€ 3107 per month) and relatively a lot less compared to the salary threshold that applies to migrants older than 30 (€ 4324 per month). However, if the threshold of 1,4 times
the annual salary will apply in the Netherlands, then there will be little difference with the old situation and the high salary requirement will still be a hurdle for employees.
The 2016 BCD also contains two exceptions from the rules concerning the migrant’s salary as is described above. For employment in professions which are in particular need of HSM and which belong to major groups 1 and 2 of ISCO, the threshold will be 80% of the salary threshold that is set by the concerned member state according to art. 5 sub 4 2016 BCD. Art. 5 sub 5 2016 BCD contains a second exemption: a HSM who has obtained a higher education qualification in the three years before the application, will also have to meet a salary requirement of 80% of the threshold set by the member state.
There are also many other amendments that have been proposed by the Commission. The minimum duration of the employment contract is brought down in art. 5 sub 1 a 2016 BCD from 12 months, as was required in the 2009 BCD, to 6 months. According to art. 13 sub 2 2016 BCD, the BC holder will also be able to exercise self-employed activities next to their highly skilled occupation on the basis of which their BC is granted; this was not possible in the old situation. Furthermore, the HSM can apply for an EU long term residence permit after three years if the BC holder resides continuously in the same member state (art. 17 sub 2 2016 BCD). Another point that came forward when evaluating the 2009 BCD was that the procedure for applying for a BC took too long. The period between the application and the decision by the competent authorities has been shortened from 90 days to 60 days in art 10 sub 1 2016 BCD. The 2016 BCD also presents the member states the option to offer a special fast-track procedure for recognised sponsors with fewer conditions to reduce administrative burdens: the decision period is then reduced to only 30 days (art. 12 sub 1 jo. 10 sub 1 2016 BCD).
Conclusion
The Commission has taken several measures in order to increase the attractiveness of the BC and these amendments will probably increase the attractiveness of the 2016 BCD substantially in comparison to the 2009 BCD. However, there still shows some potential weaknesses that could affect the effectivity of the 2016 BC. First of all, even though the Directive makes intra-EU mobility possible, this is still in a very restricted way. It is not possible for BC holders to take on a job permanently in another member state, since this would require a new application in the second member state. The 2016 BCD still leaves a lot
of discretion to the member states when implementing the Directive. This was also one of the problems with the 2009 BCD according to the European Parliament.48 The member states still have discretion regarding the implementation of the salary threshold, labour market test etc. This could potentially decrease the effectivity of the 2016 BCD due to heterogeneous and “unattractive” implementation.
48 Briefing of the European Parliament on the revision of the Blue Card Directive, EPRS BRI(2017)603942.
5. 2016 BCD and theories on (highly skilled) migration
As was concluded in chapter 2, both theories differ substantially from each other, but also show some common grounds. In this chapter both theories that were discussed in the second chapter will be applied to the 2016 BCD.
2016 BCD and the war for talent
Specific aspects of the 2016 BCD will be analysed in the light of the theory on the war for talent. We will focus on the following four aspects: the scope, application procedure, admission criteria and rights of the BC holder. However, firstly a small extra note will be made on the 2016 BCD’s goals as described by the Commission. In its impact assessment, the Commission makes mention of two general policy objections of the 2016 BCD: 1) to improve the EU’s ability to attract and retain HSM and enhancing the competitiveness of the EU economy and 2) to improve the EU’s ability to effectively and promptly respond to existing and arising demands for HSM and to offset skill shortages. These goals strongly concur with the idea of interjurisdictional competition and highly skilled labour shortage as the driving force behind the war for talent.
The scope of the 2016 BCD is widened leading to groups of people, that first weren’t viewed as highly skilled, now being marked as HSM. The theory on the war for talent does not define the term HSM49, but links HSM to labour shortages. According to a report of the European Parliament, four out of ten European employers experience difficulties recruiting workers with the right skills.50 The system of the 2016 BCD is demand driven which means that a BC is only issued if an EU company is in need of that particular employee. The widening of the scope of the 2016 BCD could be a step to fixing the apparent skilled labour shortage, since the employers in the EU can recruit employees from a larger group which will broaden their chances of finding the right candidate. Therefor, the widening of the scope of the 2016 BCD is in line with the theory on the war for talent.
49 Accoring to M. C. Ewes in ‘Migrants, markets and multinationals: competition among world
cities for the highly skilled’ the term HSM can be broadly defined by occupations as business
professionals, high-tech workers and engineers, medical workers, students and scholars, NGO workers and entrepreneurs.
50 Report of the European Parliament on Labour market shortages in the European Union (2015), p. 37. Available at http://www.europarl.europa.eu/RegData/etudes/STUD/2015/542202/IPOL_STU %282015%29542202_EN.pdf
The application procedure in the 2016 BCD is altered by shortening the decision period and introducing the possibility for a system of recognised sponsors. The war for talent entails that countries increase their attractiveness as a country for settlement and the new procedure makes the EU more competitive in attracting HSM.
The admission criteria of the 2016 BCD are also more favourable in comparison to the 2009 BCD. Especially the salary threshold and the minimum contract period have been reduced significantly which is to the benefit of the employer. A high salary threshold or minimum contract period will raise the threshold for an employer to fill a vacancy by a HSM. Under the 2016 BCD this threshold will be lowered possibly leading to a greater demand of HSM by EU companies. This in itself will lead to a more competitive EU in relation to attracting HSM compared to other regions in the world.
Also significant changes have been made to the rights that a BC grants its holder. The core principle of the 2016 BCD, when it comes to rights, remains that equal treatment must be applied. The 2016 BCD also sets even more favourable derogations from the FRD and the LTRD than the 2009 BCD did and grants its holder a more extensive right to intra-EU mobility compared to the 2009 BCD. This is a clear effect of the talent-for-rights exchange that characterizes the war for talent.
These four points above illustrate that the Commission with its proposal has chosen to engage in the war for talent by creating favourable rights and procedures for HSM. Some points of critique on the 2016 BCD from the perspective of the war of talent could be made, especially on the scope of the Directive, the discretion it leaves to the member states and the possibility for a labour market test.
As mentioned earlier, the system of the BC is demand driven. However, the Commission restricts the use of the BC by excluding certain groups of people from the scope of the 2016 BCD. Although this group of excluded workers is smaller than the 2009 BCD, it is still much larger than the Dutch HSMP. The Dutch HSMP has chosen to not define the term HSM, but instead link it to the admission criteria. This choice is more consistent with the demand driven basis of the 2016 BCD since it should be the employers that determine to what type of skills it is in demand and which category of people fulfil this demand. Excluding people in advance from the range of the 2016 BCD can impede solving skilled labour shortages and reduce the competitiveness of the EU in attracting HSM.
The 2016 BCD on multiple instances grants the member states discretion when implementing the Directive. Most notable is the salary threshold which can be set on between 1 time and
