PURPOSE: to establish the conditions of entry and residence of third-country nationals for the purposes of highly qualified employment.
PROPOSED ACT: Council Directive
BACKGROUND: This proposal forms part of the EU efforts to develop a comprehensive immigration policy, particularly in terms of economic immigration. It is a response to the demands of the December 2006 European Council, which agreed on a series of steps to be taken “[…] in order to assist Member States to meet labour needs […], while contributing to the sustainable development of all countries”. It also responds to the Policy Plan on Legal Migration (see INI/2006/2251) which aims, on the one hand, at laying down admission conditions for specific categories of migrants (highly qualified workers, seasonal workers, remunerated trainees and intra-corporate transferees), within the framework of 4 specific legislative proposals and, on the other, at establishing the general framework based on the respect of migrant workers’ rights.
The proposal also aims to improve the attractiveness of the EU as a destination for highly qualified workers from third countries (given that the EU currently welcomes 87% of the unskilled and medium-skilled workers from the Maghreb, while 54% of the highly qualified immigrants from these same countries reside in the USA and Canada).
With this in mind, the proposal establishes a flexible fast-track procedure for the admission of highly qualified third-country workers, including favourable residency conditions for them and their families.
CONTENT: The proposal for a Directive has two main purposes:
Chapter I – Scope:
This Directive shall apply to third-country nationals who apply to be admitted to the territory of a Member State for the purpose of highly qualified employment (not including independent workers). Professionals who do not necessarily need a post-secondary diploma to exercise their activity (experienced managers, certain IT professionals, etc) could also be included in the scope of the Directive, provided they can prove at least years experience in their given profession.
This Directive shall not apply to third country nationals:
Note that this Directive should be without prejudice to any future agreement between the Community (or between the Community and its Member States) and one or more third countries, that would list the professions which should not fall under this directive in order to assure ethical recruitment, in sectors suffering from a lack of personnel in third countries.
Chapter II – Criteria for admission: To be admitted, a third country national shall:
In addition to the stipulated conditions, the proposal sets out “salary” criteria: the gross monthly salary specified in the work contract must not be inferior to a national salary threshold defined by the Member States (Member States where minimum wages are not defined shall set the national salary threshold to be at least three times the minimum income under which citizens of the Member State concerned are entitled to social assistance).
Specific derogation for “young professionals” (under 30): these “young professionals”, who are likely to have inadequate experience to obtain high salaries, shall be required to meet an additional condition in order to be admitted as a highly qualified worker: completed higher education in an area related to the activity for which the work contract is to be granted. There is also more flexibility for young professionals who have studied in the EU in terms of the remuneration criterion (two thirds of the national salary threshold).
Volumes of admission: the Directive shall be without prejudice to the competence of the Member States to determine volumes of admission of third-country nationals for highly qualified employment (in other words, Member States can set entry quotas to limit the potential number of highly qualified workers to be admitted).
Chapter III – “EU Blue Card”:
A person fulfilling the requirements set out in the Directive and for whom a positive decision has been issued shall be issued an EU Blue Card with an initial validity of two years. It can be renewed for 2 additional years. If the work contract covers a period less than two years, the EU Blue Card shall be issued for the duration of the work contract plus three months. A 3 month period of unemployment will be acceptable.
Labour market access: for the first two years of legal residence in the Member State concerned as holder of an EU Blue Card, access to the labour market shall be restricted to the exercise of paid employment activities as specified in the initial work contract. Modifications of the terms of the work contract that affect the conditions for admission or changes in the work relationship shall be subject to the prior authorisation in writing of the competent authorities of the Member State of residence.
Format of the “Blue Card”: Member States shall issue the EU Blue Card using the uniform format as laid down in Regulation (EC) No 1030/2002 (see CNS/2001/0082). They shall, in particular, enter "EU Blue Card" under the heading “type of permit”.
Entitlements of the “Blue Card”: the Directive indicates the entitlements of the EU Blue Card. During the period of its validity, the EU Blue Card shall entitle its holder (and their family) to:
Procedural safeguards: the competent authorities of the Member States shall notify the applicant at the latest within 30 days of the date on which the application was lodged. In exceptional cases involving complex applications, the deadline may be extended for a maximum of 60 additional days.
Any decision rejecting an application for an EU Blue Card must have due reason, so that a clear explanation for the rejection by national authorities is provided. The rejection, non-renewal or withdrawal of an EU Blue Card shall be open to challenge before the courts of the Member State concerned.
Rejection: procedures will be in place for the rejection of a “Blue Card”: in essence, whenever the applicant does not meet the conditions or whenever the documents presented have been fraudulently acquired, or falsified. Before taking the decision on an application for an EU Blue Card, Member States may examine the situation of their labour market and apply their national procedures regarding the requirements for filling a vacancy or may give preference to Union citizens.
Chapter IV – Entitlements of the proposal in terms of equal treatment: the Directive gives a certain number of basic rights to holders of the Blue Card. Holders shall enjoy equal treatment with nationals at least as regards:
(a) working conditions, including pay and dismissal, as well as health and safety at work;
(b) freedom of association and affiliation and membership of an organisation representing workers or employers or of any professional organisation;
(c) education and vocational training, including study grants (however, Member States can restrict access to study grants);
(d) recognition of diplomas, certificates and other professional qualifications;
(e) branches of social security as defined in Council Regulation (EEC) No 1408/71 on the application of social security schemes to employed persons, to self employed persons and to members of their families moving within the Community and in Council Regulation (EC) No 859/2003 which extends the provisions of Regulation (EEC) No 1408/71 and Regulation (EEC) No 574/72 to nationals of third countries who are not already covered by these provisions solely on the ground of their nationality;
(f) social assistance as defined by national law;
(g) payment of acquired pensions when moving to a third country;
(h) tax benefits;
(i) access to goods and services and the supply of goods and services made available to the public, including procedures for obtaining housing and the assistance afforded by employment offices (e.g. EURES data bank);
(j) free access to the entire territory of the Member State concerned, within the limits provided for reasons of security.
Restriction of rights: Member States may restrict equal treatment with national workers in terms of: i) social housing (provided that employees have lived in the country for at least three years); ii) social assistance.
Family members of workers: family members will not be entitled to a “Blue Card” in the same way as the worker. However, to promote the attractiveness of the EU to qualified workers, the Directive allows for immediate family reunification, including for cases of temporary residency, as well as the access of spouses to the labour market. The proposal also specifies that potential national integration measures shall only apply once family members have arrived in the EU.
“Blue Card” links with the EC long term resident status: the aim of the proposal is to encourage the geographical mobility of highly qualified workers. Derogations to the Directive 2003/109/EC (on long term residents – see CNS/2001/0074) are foreseen so that mobile workers are not penalised, enabling them to build up periods of residency in 2 (or a maximum of 3) Member States. Derogations on periods of absence from the EU are planned but under strict conditions, to support the policy on circular migration and to limit a possible brain drain. A new residency permit is also planned to define the specific status of this type of holder: the residence permit "long-term resident – EC / EU Blue Card holder".
Chapter V – Residence in other Member States: after 2 years of legal residence in the Member State that issued the EU Blue Card, the worker and their family members will be allowed to move to another Member State to potentially carry out another highly qualified job. However, this possibility is subject to a series of specific conditions outlined in the proposal.
Chapter VI – Final provisions: the proposal requires Member States to share, through the network established by Decision 2006/688/EC, information on possible quotas and annual statistics concerning its application. This information will enable a follow-up of the recruitment in developing countries that suffer from a shortage of qualified labour.
In accordance with the provisions of the relevant treaties, the proposal shall not apply to the UK, Ireland or Denmark.