Lucie Cerna
The EU Blue Card: A Bridge Too Far?
Lucie Cerna
University of Oxford
Department of Politics & IR
Oxford, OX1 3UQ
United Kingdom
lucie.cerna@politics.ox.ac.uk
Paper prepared for the Fifth Pan-European Conference on EU Politics
Porto, Portugal (23-26 June 2010)
Please do not cite or quote without the permission of the author.
Comments are welcome.
Abstract: In May 2009, the European Union approved a Blue Card on the conditions
of entry for high-skilled third-country nationals. The directive sought to make the EU
internationally more competitive. But member states were reluctant to cede
responsibility for labour market access regulation - immigration remains a sensitive
area. They have differing demographics and labour markets; thus varying preferences
for high-skilled immigration (HSI). Therefore, their HSI policies are distinct, which
the constructed HSI index demonstrates. The paper argues that these differences and
the national self-interest of member states continue to dominate immigration. The
final version of the Blue Card does not make much of a difference since it is mainly a
marketing tool.
Key words: Blue Card, European Union, EU governance, high-skilled immigration,
index, policy change
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I. Introduction
While many countries have faced similar challenges associated with high-skilled
immigration (HSI thereafter), the policy responses of states have been different. With
the increasing competition for the ‘best and brightest’1, policy developments have
taken place at the national, regional and global levels. For instance, a number of
national governments have implemented ‘high-skilled-immigrant-friendly’ policies in
order to compete internationally for high-skilled migrants.
At the global level, some movements are visible, with GATS Mode-4 as the
prominent one. The General Agreement on Trade in Services (GATS) covers four
major groups of services. Mode 4 focuses on the temporary movement of natural
persons - services are provided by individuals abroad (e.g. intra-company transfers,
business visitors, contract service suppliers and independent professionals) (Martin
2003). However, it would be wrong to characterise high-skilled migration governance
as multilateral on this basis. Rather, Mode 4 is limited in scope, implying little
constraint on state sovereignty and is largely a reflection of declarations of unilateral
liberalisation that might have happened anyway (Betts & Cerna forthcoming).
Several regional agreements on labour migration are in place, such as the
European Union (EU), North Atlantic Free Trade Agreement (NAFTA), Mercado Común
del Sur (MERCOSUR) and Asia-Pacific Economic Cooperation (APEC).2 The EU,
however, has the most developed regional scheme concerning the free movement of
workers inside the EU (some exceptions apply). Attempts have also been made to
appeal to third-country nationals (TCNs) through the EU Blue Card in order to
compete mainly with Australia, Canada and the United States (US) in a ‘global war
for talent’. The Directive on the admission of high-skilled immigrants seeks to
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establish more attractive entry and residence conditions for third-country nationals to
work in EU member states.
The paper contributes to a wider debate on EU integration and labour
immigration policy, and serves as an empirical contribution through the Blue Card
case study. The Blue Card presents a puzzle: while EU member states face similar
challenges through labour shortages and ageing populations, their support for a
harmonised HSI policy varies. The original proposal sought to manage labour market
issues and make the EU more competitive vis-à-vis its international competitors, such
as the US and Canada. However, member states have been reluctant to cede
responsibility to regulate labour market access to the EU.
The Blue Card Directive is a good choice for this analysis because HSI is
considered the least controversial among the four migration areas, which were
presented in the 2005 Green paper. Nevertheless, there are variations in national HSI
policies, demonstrated by the constructed HSI index. These differences have been
transferred to the EU level and have made an agreement difficult. The paper argues
that these differences and the national self-interest of member states continue to
dominate immigration policy in Europe. The final version of the Blue Card does not
make much of a difference - it represents a triumph of marketing over substantive
policy-making. Its failure, however, highlights underlying weaknesses in European
institutions and the limits of further integration.
The paper proceeds in the following way: Part II analyses the development of
labour immigration policy at the EU level. Part III provides an overview of the
theoretical framework of preference formation and bottom-up Europeanisation,
whereas Part IV discusses the main points of the EU Blue Card, as well as different
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policies of member states, displayed through the HSI index. Finally, Part V offers
some conclusions and suggestions for further research.
II. Developments at the EU Level
Even though HSI might be considered the least contested immigration area,
negotiations on the Blue Card have been lengthy and difficult. According to Lahav,
“in the areas of political asylum, cultural policy, VAT, education, agriculture/fishing,
unemployment, immigration, workers rights, etc Europeans are either divided or
unwilling to cede policy-making authority to the EU” (Lahav 2004: 1174).
The Blue Card Directive is not the first try of harmonisation of immigration at
the EU level. Earlier attempts date from the 1980s, when the Single European Act
introduced a policy toward TCNs, and later the 1990 Dublin and Schengen
agreements. This was followed by the Maastricht and the Treaty on European Union.
However, immigration policy was limited to asylum and transit visas, all placed in the
third pillar of Justice and Home Affairs. While the Treaty of Amsterdam expanded the
area of immigration in the first pillar (e.g. external border controls, visas, other rights
of TCNs, immigration and asylum), member states ensured that decisions had to be
taken unanimously in the European Council, even after the five transitory years. This
procedure for immigration has remained until the Treaty of Lisbon.
The Tampere Summit of 1999 introduced a five-year mandate to harmonise
immigration policies and recognised labour market needs in different sectors, as well
as demographic needs (Schain 2009). The Lisbon European Council in March 2000
launched the Lisbon strategy – the EU’s goal was to become the most competitive and
dynamic knowledge-based economy in the world, and attracting high-skilled
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immigrants was included in this strategy. At this Council, the European Commission
(EC) also proposed the implementation of an open method of co-ordination (OMC) to
“encourage countries to advance their levels of national policy experimentation and
co-ordination through a non-binding yet common governance mechanism” (Caviedes
2004: 289). The flexible policy was aimed at particular areas, including high-skilled
immigrants, who are considered positive for economic growth and a lesser burden on
the welfare state. Nonetheless, the Council did not adopt the proposal.3
In a similar vein, the Commission proposed a Directive in 2001 on ‘the
conditions of entry and residence of third-country nationals for the purpose of paid
employment and self-employed economic activities’. While the text focused on
different types of labour immigration, it already mentioned that the Community
should attract third-county workers due to a shortage of skilled labour in certain
sectors (Zaletel 2006). Even though the other European institutions gave positive
opinions, the Council only discussed a first reading of the text, and it was officially
withdrawn in 2006 (EC 2007d: 3).4
Building on Tampere and Lisbon, the Hague Programme of 4-5 November
2004 recognised that EU businesses were increasingly dealing with labour shortages,
thus legal immigration would help to boost the European knowledge-based economy
(EC 2007d). In December 2005, the Commission presented a Green Card according to
the Communication, Policy Plan on Legal Migration (COM(2005)669) on the
adoption of several legislative proposals for the period from 2007 to 2009. This
selective approach was endorsed by the European Council in December 2006, inviting
the Commission to present these proposals as part of the comprehensive EU
Migration Policy (EC 2007b). The proposals concerned four types of immigration:
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high-skilled immigrants, intra-company transfers, seasonal workers and trainees. This
was the first time that a proposal was disaggregated by type of labour immigration.
The EU decided to start with high-skilled migrants because consultations by
the Commission indicated more support for high-skilled than for low-skilled
immigrants (Guild 2007, Luedtke 2009). The small number of high-skilled
immigrants is less likely to be linked with a negative feeling of changed cultural
identity in the native population than is the case with general immigration (Money &
Falstrom 2006). High-skilled immigrants have higher earnings and tax payments, less
reliance on social benefits and fluency in the receiving country’s language, which
eases their integration into the receiving society. They are distinct from low-skilled
immigrants, whose integration is often perceived by the native population to pose
greater problems. In addition, high-skilled workers and professionals create much less
of a challenge than manual workers because “immigrant scientists, engineers and
physicians reinforce the nation’s supply of scarce talent and mix easily with the
domestic population by becoming dispersed throughout the country” (Portes &
Rumbaut 1996: 293). These immigrants tend to be more dispersed in the receiving
country, and thus are likely to create limited geographic concentration and backlash
by native population.
III. Bottom-Up Immigration Policy
While there are incentives for HSI due to common challenges among member states,
progress at the EU level has been limited.5 The literature often presents immigration
policy as an example of either neo-functionalist or intergovernmental nature.6 On the
one hand, EU institutions such as the Commission and the Parliament have been
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pushing for a harmonised migration policy. When referring to the Commission, the
DG Justice, Freedom and Security (JLS) is the key actor in driving labour
immigration policy, but the DG Employment, Social Affairs and Equal Opportunities
is also involved to some extent. The neo-functionalists consider economic cooperation
inevitably spilling over into other areas, such as migration policy (Haas 1958, Stone
Sweet & Sandholtz 1998). On the other hand, intergovernmental theories consider
supranational institutions as means of locking in preferred domestic political
arrangements (Moravcsik 1998) and see member states as the primary political actors
(Givens & Luedtke 2004 & 2005, Guiraudon 2000). Member states are represented in
the Council of the European Union and have been able to veto policy proposals on
labour immigration due to the unanimity rule. Therefore, while there has been some
progress over the years, migration policy at the EU level has not reached the same
degree of harmonisation as other policies.7
Rather than plotting the two theories against each other, the paper proceeds by
focusing on bottom-up processes, where member states policies concerning labour
immigration of TCNs are transferred upwards to the EU level. In EU integration
studies, bottom-up Europeanisation in policy-making has been rather neglected so far
(Menz 2009). This is in contrast to top-down Europeanisation, where EU-driven
liberalisation leads top-down from the EU to national level in internal labour
migration (e.g. free movement of workers inside EU) (Menz 2002: 724).
In bottom-up processes, governmental actors have to engage in two-level
games (Putnam 1988), where they negotiate policies at the national level and then
take their agendas to the EU level. This results in a second level game and bargaining
over EU policy. There governments seek to shape policy-making through either
proactive suggestions or blockage/delay (Menz 2009). But bottom-up Europeanisation
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in immigration policy is “an extremely arduous game to play, as other governments
need to be successfully persuaded, given the de jure unanimity requirement for
decision-making in the Council” (Menz 2009: 7). The following sections will identify
actors and their preferences in this ‘game’.
National Actors
The focus of this paper is to analyse differences in member states’ policies, resulting
from different actors and their preferences at the national level. It uses the Blue Card
as a case study. According to Georg Menz, national responses are influenced by
“national interest groups, the political orientation of the government, the process of
public debate, media attention and far-right parties” (Menz 2002: 740). Therefore, the
emergence of national preferences needs to be examined.8
Some authors propose that temporary labour immigration policy is mainly
determined by economic interest groups (Caviedes 2006, Meyers 1995 & 2004,
Freeman 2006, Menz 2009). Key actors at the national level hence include labour
market associations, such as unions, professional associations and employers’
associations. Their relative strength and potential for building coalitions influences
their lobbying capacity with the government. For instance, Eytan Meyers analyses a
number of factors that pertain to different labour immigration policies. Gary Freeman
seeks to specify particular policy dynamics that can emerge in area of labour
migration. For example, temporary labour immigration policies fall under nonimmigrant work visas, governed by interest group policies. HSI has been
“successfully sold as a cost-free policy that produces substantial, if diffuse, benefits
for the society in a global economy privileging technology and creativity” (Freeman
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2006: 238). The recruitment of high-skilled workers is beneficial for the receiving
country, while costs, if any, are diffuse.
Both Meyers and Freeman argue that labour immigration policies (in
particular HSI) are converging, although for different reasons. Meyers claims that
immigration policies converge mainly due interdependence, economic and ideological
cycles, and common migratory pressures. According to Freeman, HSI policies are
converging because “several European countries amended their laws to permit easier
entry of skilled foreign workers…and the settler societies have shown growing
interest in tapping pools of temporary skilled labour in recent years” (Freeman 2006:
237-238).
However, in contrast to the presented convergence arguments, this paper
argues for continuing divergence among countries’ HSI policies. While governments
might display similar policy goals for liberalised policies, their adopted policies and
conditions do not always match these goals in reality. Countries’ policies still differ in
their depth and pace of openness.
Therefore, another argument of preference formation is presented. Three
actors are considered important. Native high-skilled labour will have restrictive
preferences as high-skilled immigrants constitute labour market competition for them.
Native low-skilled labour can support more open HSI as these workers can benefit
from increase job opportunities. Capital will be highly in favour of more open HSI in
order to fill labour shortages. These actors compete for political influence by building
coalitions. Coalition-building between actors with varying HSI preferences, mediated
by labour market organisation and political representation, determines cross-national
variations in HSI policy outputs (Cerna 2009).
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For instance, institutions such as (high-skilled) unions or professionals
associations are interested in the representation of native high-skilled workers and
gain influence in the policy-making process in some countries (e.g. Scandinavia),
while political parties consider the representation of high-skilled workers important in
others (e.g. Germany). Capital, e.g. employers’ associations and businesses, plays a
more influential role in some countries (e.g. United States - US), but are more
restricted in their power in others (often through tripartite policy-making).9 And lowskilled workers are represented to different degrees as well. These three actors can
form different coalitions in order to achieve their desired policy outputs, which then
varies across countries. But labour market organisation is not the only way of
aggregating preferences of the actors. They can also gain political representation
through political parties, districts/states, as well as links between unions or
employers’ associations and the government. Since coalitions vary across countries,
some are more open towards high-skilled immigrants than others. These differences
have been shifted upward to the EU level. Even if member states have agreed on the
Blue Card directive, the final outcome is based on a lowest common denominator.10 It
has been watered down from the original proposal, and immigration control (in this
case of HSI) remains with the sovereign member states. Instead of explaining
immigration policy-making at the national level, this paper focuses on analysing the
lack of agreement at the EU level.
IV. The EU Blue Card Directive
Labour migration into Europe boosts our competitiveness and therefore our
economic growth. It also helps tackle demographic problems resulting from
our ageing population. This is particularly the case for highly skilled labour.
With today’s proposal for an EU Blue Card we send a clear signal: highly
skilled migrants are welcome in the EU!
(EC 2007a)
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The quotation illustrates the Commission President José Manuel Barroso’s rationale
behind the Blue Card. It seeks to create a single application procedure for non-EU
workers to reside and work within the EU, and to establish a common set of rights for
workers in member states. The Council of the EU adopted the Directive on 25 May
2009 (Council of European Union 2009). The Blue Card allows high-skilled TCNs to
work in an EU country for a maximum of four years. After 18 months, the migrant
can move to another EU country. Applicants need to show a recognised diploma and
have at least three years of professional experience in order to be eligible. High-killed
migrants can bring their families and the application procedure is expected to take less
than three months.
The directive, however, does not create the right of admission. The scheme is
entirely demand-driven, respecting the principle of Community preference and
member states’ jurisdiction to decide on the numbers of persons admitted. In
particular, member states should take into consideration the Acts of Accession terms
and continue to give preferences to workers of the EU-811 and EU-212 over TCNs (EC
2007c).
But who are the high-skilled migrants in the first place? There is no universal
definition for HSI (Lowell 2008). The three main definitions consider education,
occupation and salary level, but overlap to some extent (Chaloff & Lemaitre 2009).
Education definitions consider mainly tertiary education, as defined in the
International Standard Classification of Education (ISCED). High-skilled occupations
rely on statistics based on the International Standard Classification of Occupations
(ISCO), and consider managers, professionals and associates, for instance. Salary
level definitions represent considerable flexibility.
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An earlier attempt has been the 1995 OECD Canberra Manual, which defines
the Measurement of Human Resources in Science and Technology (HRST). But it is
limited to occupations in science and technology sectors, whereas high-skilled
immigrants can work in a variety of sectors ranging from information technology
(IT), engineering, finance and biotechnology to health care and education, to name a
few. After many discussions about the definition of high-skilled TCNs, member states
agreed to focus on salary level.
Main Points and Objectives
According to Elspeth Guild, there are three main arguments for the Blue Card: 1)
businesses need economic migrants to fulfil their recruitment needs (business
argument); 2) the EU is no longer producing sufficient numbers of workers to meet its
business needs (demographic argument); and 3) the evidence of the failure of the
current high-skilled regime since the high-skilled go to Canada and the US, rather
than to the EU (competition argument) (Guild 2007: 3).
The Directive’s aim is to provide member states and EU companies with
additional means to recruit, retain and better allocate (and re-allocate) workers. The
Commission seeks to raise the competitiveness of the EU economy through the
contribution by legal immigrants (EC 2007c). The EU, with 1.7 percent third-country
high-skilled workers of the total of the employed population, is behind the other main
immigration countries, such as Australia (9.9 percent), Canada (7.3 percent), US (3.2
percent) and Switzerland (5.3 percent). It has been difficult for the EU to attract highskilled migrant workers13 (EC 2007c).
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The EU Blue Card provides for a “one-stop-shop” system for TCNs who
would like to live in a member state for work purposes. It simplifies, shortens and
accelerates the process for employers and immigrants (EC 2007b). The Directive is
also meant to give legal TCNs basic socio-economic rights on equal basis to EU’s
nationals.14 But, in this paper, only the admission part of the Blue Card will be taken
into consideration since it has created the most controversy among member states.
Europe needs to speak with one voice if it seeks to attract ‘the best and
brightest’. Immigrants will be aware of the conditions to be admitted in any member
state. ‘Less attractive’ member states could benefit from EU’s higher visibility and the
attention given to the new scheme. The ‘advertising’ value of the EU Blue Card
should make it more successful (EC 2007c). A European solution could “offer greater
visibility, predictability and transparency than 27 different national systems”
(Weizsäcker 2006: 3).
In 2007, only about ten member states had special programmes for highskilled TCNs that surpassed categories of scientists, artists, intra-corporate transferees
and university professors. Mobility in the EU was hindered through differences in
definitions and admission conditions for high-skilled workers (EC 2007d). The new
scheme is unlikely to solve the present and future challenges, but should constitute an
important contribution (EC 2007d: 2).
Common Challenges in Member States
Whereas individual member states focus on their needs, the EU institutions (e.g.
Commission) consider the global picture - or at least the EU situation on the whole.
For example, member states face common problems in various areas, such as falling
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birth rates and an ageing population. Eurostat projections indicate that in the EU,
“population growth until 2025 will be mainly due to net migration, since total deaths
will outnumber total births from 2010. The effect of net migration will no longer
outweigh the natural decrease after 2025” (EC 2005: 4). This will have serious
repercussions on the number of employed people in the EU, as “the share of
population of working age […] in the total population is expected to decrease
strongly, from 67.2 percent in 2004 to 56.7 percent in 2050, a fall of 52 million […]”.
The decline in the total population is expected by 2025 and in the working age
population by 2011 (EC 2005: 4). Some member states (e.g. Germany, Hungary, Italy
and Latvia) have already experienced a decline in the working age population, while it
would happen later in others (i.e. Ireland from 2035). These demographic trends,
however, will not affect all member states to the same degree. Labour immigration
could mean a short to mid-term solution to this trend (EC 2005).
Another major challenge is labour shortages, traditionally linked to low-skilled
jobs, but unfilled jobs in high-skilled sectors, such as IT, engineering and health care,
increasingly pose a challenge. The former European Commission President, Romano
Prodi, argued in 2001 that the EU “urgently needs to ease restrictions on labour
mobility, particularly in the technology sector, which faces a shortage of up to 1.7
million qualified workers by 2003” (The Economist, 31 March 2001). At the 2007
Blue Card press conference, the European Commission President Manuel Barroso
stated that the EU would have future shortages of labour and skills, already the reality
in some sectors. He claimed that European economies depended on a skilled and
mobile labour force and needed “a European approach to legal immigration if we
want to be serious in becoming the most competitive, knowledge-based society in the
world” (Barroso, Press Conference, 23 October 2007). According to Commission
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estimates, labour shortages will peak by 2050 when 25 million Europeans are
expected to retire from work and one-third of the population will be over 65 years of
age (EC 2007d). Labour shortages have prompted the EU to look for high-skilled
migrants beyond its borders. But the degree and the composition of labour shortages
vary among member states. It is also a challenge to obtain comparative data on labour
vacancies, by itself difficult to establish (Mayer 2008).
Public Opinion
Even if the EU institutions presented a case for delegating immigration policy to the
EU level, the need for this action was less clear among citizens of member states.
According to Gallya Lahav, “the European public understands the benefits and
necessity of dealing with immigration supranationally, but is unwilling to accept the
consequences of such an action – the loss of national sovereignty” (Lahav 2004:
1177-1178). Recent surveys demonstrate that European public opinion is most
divided about asylum and migration policy among all the Justice, Freedom and
Security areas covered in the survey. In Figure 1, a clear majority (63 percent) favour
more decision-making at the EU level in this field, while 24 percent believe that there
should be less decision-making at the same level. Around one European out of fifteen
is content with the present situation or lacks an opinion (6 and 7 percent,
respectively). The total EU results have not changed significantly since the question
was previously asked in spring 2006 (Eurobarometer 2008: 18)
In all member states except Finland, the UK and Ireland, a relative majority of
respondents prefers more decision-making at the EU level, whereas in Sweden (43 vs.
38 percent) and Austria (47 vs. 37 percent) public opinion is quite divided. In
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contrast, in 2006, a relative majority of Swedes (43 vs. 40 percent) favoured less
decision-making at supranational level, whereas the British clearly favoured more
decision-making at the EU level (Eurobarometer 2008: 20).
Figure 1: More European level decision-making of asylum and migration policy?
Source: Eurobarometer 2008: 20.
However, this survey does not distinguish between types of migration. There
might be a need and rationale for harmonised policies at the EU level on asylum due
to burden-sharing. Border protection might also necessitate cooperation at the EU
level. But for labour migration, the need for harmonisation is less clear. It can be the
case that member states who require assistance dealing with irregular migrants
welcome the opportunity of delegating these policies to the EU level.
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Measuring differences in national HSI policies
As the previous section has demonstrated, the preferences for EU immigration policymaking vary among citizens of member states. So does the extent of demographic and
labour market needs across member states. States are heterogeneous in terms of
labour markets, immigrant inflows, sectoral shortages, data collection and political
frameworks (Salt & Almeida 2006). Based on the EU study on the ‘Estimates on
annual inflows of work permit holders in 16 EU countries’, the Blue Card could cover
at least 74,300 work permit holders for EU-25 (EC 2005: 27). Nonetheless, the
number of professional immigrant workers has varied considerably within the EU,
ranging from 160 in Lithuania to 15,800 in the UK (2002-2003) (EC 2005: 27). The
labour market size and population size of member states fluctuate as well. EU
member states have different national interests in the Blue Card, which leads to
difficulty of delegating responsibility to the EU level. This variation is demonstrated
through national HSI policies.
While it is evident that member states’ preferences and thus HSI policies vary,
little comparative work has been done to systematically categorise and measure these
differences. As a result, it is necessary to examine countries’ HSI in more detail and
to disaggregate policies on the terms and conditions attached. This section provides an
empirical contribution by constructing a HSI index. The goal of the High-Skilled
Immigration Index (HSII) is to analyse the openness of national HSI policies and to
rank countries. The degree of HSI competitiveness between countries depends on how
liberalised HSI policy and how restrictive admission controls are.
The HSII includes twenty countries for 2007. The index has two dimensions:
categories for HSI policy and countries. It contains the traditional settlement countries
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(Australia, Canada, New Zealand and the US), West European countries, often with
guest-worker or colonial history (Austria, Belgium, Denmark, Finland, France,
Germany, the Netherlands, Norway, Sweden, Switzerland and the UK), new
immigration countries (Ireland, Italy, Portugal, Spain) and one Asian country (Japan).
These advanced industrial countries are chosen to represent different migration
histories and experiences, as well as different levels of involvement of interest groups
in policy-making. The index includes fourteen EU member states and six other
countries (Australia, Canada, Japan, New Zealand, Switzerland and the US), for
reasons of comparison in the ‘global war for talent’.
Other research on categorising policies exists, such as the Parliament of the
Commonwealth of Australia’s Joint Standing Committee on Migration (2004),
Christian (2000), Geddes et al. (2004 & 2007), Lowell (2005), McLaughlan & Salt
(2002), as well as some SOPEMI reports (mainly 1997 & 1998). In addition, a few
authors have analysed temporary foreign worker programmes (for both high- and lowskilled immigrants). Examples include Castles (2006), Martin (2003) and Ruhs &
Martin (2008). They present different criteria and sub-categories for a certain number
of countries in specific years. Lindsay Lowell (2005) has provided a review of this
literature. While these works do not always correspond in categories and years, they
offer a cross-section for at least a limited number of countries. However, both an
index and a ranking of policies are missing, except for Lowell’s work.
Countries do not employ the same legislative mechanism to regulate the
employment of temporary labour migrants. The analysis of HSI policies encompasses
both primary legislation (e.g. laws, ordinances) and secondary instruments (e.g.
regulations, circulars). The ranking concentrates on temporary HSI policies whose
common goal is to fill labour market shortages. In addition, this ranking does not go
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as far as evaluating policies in terms of HSI outcomes, i.e. immigrant flows. The HSII
looks at the mechanisms (quotas, economically oriented work permit fees and
employer-demand) and the rights of high-skilled immigrants (family reunification,
duration and renewability of work permit, change from temporary to permanent
residence).
The HSII ranks twenty countries in July 2007, a few months before the EU
Blue Card was proposed. The assigned scores are based on available information
about HSI legislation and are primarily compiled through desk research. SOPEMI
Annual Reports on Migration and the earlier Continuous Reporting System on
Migration have been used to grasp major policy changes. Categories are
supplemented by detailed readings of national immigration legislation and policy
descriptions on national websites (such as Ministry of Labour, Ministry of
Immigration, Work Permit etc). A country’s score is a more important indicator than
its rank for the openness of policies towards high-skilled immigrants. A rank can
change easily when new countries enter the index or others are taken out. Figure 2
displays the six chosen categories and groups them into two subheadings.15
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Figure 2: Sub-categories of HSII
HSII
Admission Mechanisms
Work Permit Rights
Numerical Caps
Employer Portability
Labour Market Test
Spouse’s Work Rights
Labour Protection
Permanent Residency
Rights
The HSI index is meant to measure the openness of countries towards highskilled immigrants. It is composed of six categories, and scores are assigned to each
of them from 0 to 3. It operates on equal weighting principle, which means that any
two policy changes in a particular country that have an equal effect on the openness of
policies have an equal effect on the HSI index. For example, one point change in
‘numerical caps’ has the same effect on the overall scores as one point change in
‘spouse’s work rights’. Points are assigned from 3 (=highly restrictive), 2
(=moderately restrictive), 1 (=minimally restrictive) to 0 (=highly open). All policies
are ranked on the same criteria. In the end, the individual points for the six categories
are added and converted into an index, where the most restrictive country receives a
value of 100. The higher the overall score, the more HSI restrictive is the country.
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Figure 3: HSI Index
Figure 3 shows that, in 2007, Sweden ranked as the most restrictive country,
followed by Austria and then a group including Denmark, Italy, Japan, Spain and
Switzerland. The Netherlands, Ireland and the UK ranked as the most open for
attracting high-skilled immigrants.16 Most countries occupied the middle field of the
ranking. Among them were Canada and the US that, despite not having the most open
policies, still exhibited very successful cases for the recruitment of high-skilled
immigrants. Even countries like France who liberalised its policy through the ‘carte
des compétences et des talents’ only attracted about 590 high-skilled immigrants in
2008, despite a set target of 2,000 per year. This exemplifies that the openness of
policies is not always correlated with the policy success in attracting immigrants.
Other factors can play a considerable role, including the difference between ‘policies
on paper’ and ‘policies in practice’. They can result from the regulation of policies,
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enforcement
mechanisms
and
administrative
capacity.
Of
course,
some
methodological limitations of the index apply. The findings from the HSI index
demonstrate the need to understand national policy variation and their effects on
negotiation.
Member states’ preferences regarding the Blue Card
While the European Commission presented the Blue Card with enthusiasm, this view
was not shared by all member states. Nevertheless, in order to avoid the failure of the
2001 directive, the Commission had engaged in consultations with member states and
civil society (i.e. unions, employers, NGOs) before proposing the Blue Card directive
(Luedtke 2009). As the previous sections have shown, there are differences in labour
market needs and demographics, and hence HSI policies in EU member states.
Immigration policy at the EU level used to be under unanimity rule until the Treaty of
Lisbon entered into force in December 2009. The Treaty extends qualified majority
voting to other areas, including immigration policy. This could allow the EU to play a
more significant role in labour immigration, especially since the next planned
directives deal with intra-company transfers and seasonal workers (EC 2010). But so
far, all member states had to agree on the Blue Card directive, the European
Parliament issued an opinion and the European Economic and Social Committee, as
well as the Committee of the Regions were consulted.17 The role of the EU and of the
European Commission is considered weak regarding areas such as labour immigration
(Carrera & Guild 2008).
The support varied according to the self-interest of member states, i.e. whether
they perceived benefits in increased EU delegation. Member states backing the
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directive did not have a specific HSI policy (or had a restrictive policy) and/or were
unsuccessful in attracting high-skilled immigrants. Some member states considered
the Blue Card as an opportunity to shift the balance between its migration types.
Southern European countries, as well as Sweden, currently accept more asylumseekers (or low-skilled workers) than high-skilled workers. These countries would
like to attract ‘productive’ and politically less contested type of migrants. For
instance, “Swedish politicians now think the Blue Card system for potential migrants
with marketable skills proposed by the EU may offer them an honourable way out of
their dilemma” [to shift from humanitarian/refugee immigration to HSI and make sure
it gets newcomers it wants and not migrants it gets] (Engel 2008: 21).18
France, Spain and Italy also supported the European Commission’s directive
for an EU-wide Blue Card (Work Permit 2007). Officials at the French Ministry of
Immigration considered the EU Card better than their new skills and talent visa,
which had come into effect in 2007 (Author’s interview, Ministry of Immigration, 11
February 2010). It was the EU’s duty to attract the best and brightest (MEP JeanMarie Cavada, ALDE, France). Italy welcomed the directive, but “believed that final
text should be braver. Besides the legal channels of immigration, there should be true
and effective free movement of workers of all on the European territory” (Italian
Socialist MEP Claudio Fava) (European Parliament 2008a).
Member states with open and/or successful HSI policies were less interested in
the Blue Card and did not want to let the EU dictate who they could and could not
admit (e.g. the Netherlands and the UK). Several politicians in the Netherlands were
hostile to the directive and the Austrian government condemned the plan as “a
centralisation too far” (BBC 2007). The UK has already engaged in a reorientation
toward high-skilled policy and has developed an Australian-style points system”
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(BBC 2007). It implemented a new tier system from 2008 and thus was less interested
in an EU-wide Blue Card.
Other member states protected their native high-skilled workers and pointed to
high national unemployment rates, despite labour market shortages in some sectors
(e.g. Germany).19 This made HSI liberalisation more debated – member states had to
sell the Blue Card to their citizens and were worried about training opportunities:
“The new rules must not put additional pressure on the millions of unemployed in the
EU member states” (German Conservative MEP Manfred Weber) (European
Parliament 2008b). Germany has had experience with a large number of (low-skilled)
guest workers in the 1950s/1960s and the resulting problems of integration. It also
sought to attract foreign IT professionals with the German Green Card, but the
scheme was not generous to immigrants and thus unsuccessful. In addition, Germany
had implemented a new immigration law in 2005, which included a focus on HSI.
These experiences influenced their preference towards the EU Blue Card.
Many member states also remained sceptical of a pan-European solution to the
problem. In September 2007, the idea drew fire from former German Economy
Minister Michael Glos, who said: “Germany could not take in large numbers of
foreign workers just because it needs them at one particular moment.” The Labour
Minister at that time, Franz Müntefering, commented that such significant questions
could not be resolved like that by Interior Ministers or the responsible EU
Commissioner (Der Spiegel 2007b).
A number of member states disputed the Blue Card on principle. Especially
ministers from new member states (e.g. the Czech Republic) felt that a common
migration system for the high-skilled was inappropriate when transitional
arrangements limiting the labour mobility of EU citizens from the new member states
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were still in place (Collett 2008).20 But this objection can be interpreted as a selfinterest argument. New member states wanted to push for free movement of their
workers. Until they saw benefits of the Blue Card, they did not support the Directive
for TCNs.
As we would expect, member states wanted to keep labour immigration policy
in their own hands and only agreed on conditions from which they would benefit.
Their positions reflected national HSI preferences. The 2007 proposal, greatly debated
in national governments and ministries, was endorsed by the European Justice and
Home Affairs Ministers during a meeting on 25-26 September 2008 (Goldirova
2008). On 4 November 2008, Members of European Parliament (MEPs) in the Civil
Liberties Committee gave their vote on the Klamt report on the Blue Card (European
Parliament 2008b). The vote was postponed from 13 October 2008 at the last minute
for procedural reasons. On 21 November 2008, the full EU Parliament supported the
agreement (EurActiv 2008b).21
The Council of the European Union approved the Directive 2009/50/EC on 25
May 2009. It entered into force on 19 June 2009. Member states had until 19 June
2011 for the transposition of the directive. In addition, the Directive included
provisions for monitoring of Blue Card holder flows. From 2013, the Commission
would annually collect statistics from member states on the number of cards issues,
renewed, withdrawn or refused, on nationalities and occupations and their families.
From 2014, the Commission had to report on the application to the European
Parliament and the Council every three years and recommend any changes (Europa
2009).
The final agreement differed significantly from the original proposal and led
to a directive based on a lowest common denominator. One of the problems was the
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definition of high-skilled labour. In the end, consensus was reached on using salary
level as the sole criterion (EurActiv 2008a). Some EU countries had proposed a ratio
of twice the average salary, while others that were more open to immigration were
proposing 1.1 or 1.2. A compromise figure of 1.5 was agreed, with derogations to
lower the pay to 1.2 times the national average for sectors with acute labour shortages
(EurActiv 2008a). Other member states, such as the UK, Finland and Germany, where
legislation did not provide for fixed minimum salaries, were reluctant to agree to the
concept. They received assurances that the average salary was strictly statistical and
that the Blue Card would not require changes to national labour legislation (EurActiv
2008a).
Another compromise was reached on the duration of the Blue Card. The 2007
proposal envisioned the possibility for the migrant moving to another member state
after two years and working in the EU for a total of five years. Some countries were
determined to maintain national sovereignty over the labour market (e.g. Germany).
Therefore, the final directive included provisions that allowed high-skilled migrants to
move with their families to another EU state after 18 months, but then they would
need to apply for a new Blue Card. The total duration of the visa would not exceed
four years, in contrast to the five years listed in the earlier proposal (Melander
2008a). But governments could refuse to issue Blue Cards citing labour market
problems or if national quotas were exceeded (Melander 2008a). Labour shortages in
the EU intensified during recent years. However, when member states finally agreed
on the Directive, most EU member states were severely affected by the economic
crisis.
The success of the scheme has been debatable. Analysts estimated that the
Blue Card would not be enough to attract high-skilled staff and compete with the US
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Green Card because it only offered access to one EU state at a time, not free mobility
within the European single market (Melander 2008b). “The fact that a Blue Card is
not automatically valid for the whole of the EU takes away most of the advantage of
having an EU-wide scheme because it gives access to a much smaller market and
fewer opportunities”, said Jakob von Weizsäcker (Melander 2008b).
The final version of the Blue Card will not add much value since there are a
number of shortfalls that are not addressed. First, each member state will maintain the
right to determine the number of immigrant workers that can be admitted into the
domestic labour market through the Blue Card. So “this is not an open doors policy”
because “if a given member-state needs engineers or doctors, it has to decide how
many, and then it will provide a state with a common procedure” (BBC 2007). This is
not harmonisation per se (Collett 2008). Second, the Blue Card also does not deal
with the problem of qualification and skills recognition for TCNs (Collett 2008).
Third, the rate of success of the Blue Card is unclear. Surveys of high-skilled
immigrants showed that immigration policies were not their main concern. Instead,
other pull factors played an important role (Collett 2008). A greater number of
immigrants might come to the UK, Ireland or Germany, rather than to Italy or Spain,
for reasons such as language, higher wages and greater working opportunities.
In the end, the Blue Card took many years of negotiations to reach a
compromise. Member states pursued their self-interest and retained the right to
determine the number and conditions of high-skilled TCNs. The UK, Ireland and
Denmark wanted their immigration policies left to their own jurisdiction - not the
EU’s – and opted out. In addition, they had their own HSI policies in place and could
attract enough high-skilled immigrants. But at least they were not in the way of
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adopting the Directive. Therefore, the success of the Blue Card is likely to be modest.
As such, the Blue Card presents mainly a procedural simplification.
V. Conclusion
The ‘global war for talent’ has intensified in recent years. Not only were
developments visible at the national level, but reforms were also underway at the
global and regional levels, most notably in the EU. One proposed reform by the
European Commission was the EU Blue Card. The Directive was passed by the
Council of European Union in May 2009. The EU Blue Card has been a welcomed
initiative at the EU level - its objectives were to streamline processes, create a
centralised decision-making arena and offer one simple application procedure and
flexibility for high-skilled immigrants. These steps were to improve the EU’s position
in the global competition for ‘the best and brightest’. It has been difficult to obtain the
support of all member states as some consider the Blue Card to be more beneficial
than others. Member states have varying needs in terms of demographics and labour
markets. Therefore, as the constructed HSI index demonstrated, HSI legislation and
policies differed considerably among member states. Actors with varying interests
already existed at the national level and these preferences were shifted upwards to the
EU level. It has led to an agreement with the lowest common denominator, with an
opt-out of some member states.22
The application of the Blue Card is likely to be limited. Even though it was
publicised to mirror the US Green Card, there are some significant differences. The
Blue Card does not “offer the security of residence and access to the labour market,
and does not create a right of entry for a migrant worker” (Guild 2007: 4). When the
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EU first proposed the then-Green Card in 2007, the US (in particular pro-business
groups) was concerned that it would lose the competition for ‘the best and the
brightest’ to Europe. At that time, H-1B visas for the high-skilled were exhausted on
the first day of the financial year and employers’ associations, as well as multinational
corporations, had been lobbying for an increase in the cap for many years.
With the global economic crisis, the situation has changed. The Blue Card
directive was passed in May 2009, but the need for high-skilled immigrants had
decreased since the Blue Card was discussed in 2005. The US has not exhausted its
H-1B cap almost five months after the start of the financial year; Australia decreased
the number of high-skilled immigrants for 2009, while Canada and New Zealand were
among the few that have not restricted its quota/targets so far. However, labour
shortages in certain high-skilled sectors (e.g. engineering and health care) in the EU
continue and thus member states still need to recruit high-skilled migrants. Many of
them have restricted their national policies towards TCNs since they are limited in
their actions towards EU workers (e.g. Ireland and the UK) (Migration News 2009).
The final version of the Blue Card will not make much of a difference - it
represents a triumph of marketing over substantive policy-making.23 Many member
states already have national policies towards TCNs in place. With the Blue Card,
member states retain the right to decide the number and conditions for high-skilled
migrants. The Blue Card signals to other countries that 1) the EU welcomes highskilled migrants and 2) it is an important player in the ‘war for talent’. But the Blue
Card also demonstrates that member states are not willing to delegate decisions on the
needs of their labour markets to the EU institutions. Therefore, its failure highlights
underlying weaknesses in European institutions and the limits of further integration.
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Some member states will continue to be more successful in attracting highskilled migrants than others, with or without a Blue Card. Factors, such as wage
levels, advancement opportunities and language issues play an important role
(Chaloff& Lemaitre 2009). The Blue Card might be a first step, but different
preferences and sovereignty concerns precluded member states to agree on more than
a lowest common denominator. Even though HSI is supposed to be the most ‘rational’
type of immigration, it cannot escape the fear of citizens and national policy-makers
to delegate the decision on the entry of high-skilled immigrants to EU institutions.
The politicisation of immigration should be examined by future scholars.
This paper has presented an analysis of the benefits and challenges of the Blue
Card. Further research should also provide an examination of these issues once the
Directive is transposed into national legislation. The EU Blue Card offers a number of
areas for consideration, such as the shifting governance from national to EU level, the
increasing competition for high-skilled immigrants, migration policy-making and EU
integration. The paper has only touched the surface of these important, but complex,
topics.
NOTES
1
‘The best and brightest’ refer to high-skilled immigrants, meant to promote
innovation and international competitiveness. While many definitions of high-skilled
immigrants exist, the image that often comes to mind is that of a “relatively small
elite, covering perhaps persons with doctorates, researchers, high-level engineers”
(Chaloff & Lemaitre 2009: 10). Definitional issues are discussed in later sections.
2
They are analysed in Lavenex (2006).
3
See Caviedes 2004 and Menz 2002 for a detailed overview of EU developments in
immigration.
4
For an analysis of the failed 2001 directive and the successful 2007 directive, see
Luedtke 2009.
5
Some authors argue that the harmonisation of immigration policies is necessary due
to efficiency arguments (e.g. Straubhaar 2000). National policies should be made
similar to prevent “certain countries from opening the borders of all fellow member
states as well as to establish a common system for managing migration flows”
(Caviedes 2004: 292).
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6
For a mixture of both approaches, see Geddes 2003 and Messina 2007.
There are several other hypotheses found in the literature, such as path-dependency
(Hansen 2002), the role of elites (Guiraudon 2000) and the rights-based explanation
(Hollifield 1992). Due to space constraints in this paper, I cannot address these
hypotheses.
8
“They emerge through domestic political conflict as societal groups compete for
political influence, national and transnational coalitions form, and new policy
alternatives are recognised by governments” (Moravcsik 1993: 481).
9
Tripartite policy-making refers to government, unions and employers’ associations.
10
“A lowest common denominator outcome does not mean that final agreements
perfectly reflect the preferences of the least forthcoming government - since it is
generally in its interest to compromise somewhat rather than veto an agreement- but
only that the range of possible agreements is decisively constrained by its
preferences” (Moravcsik 1993: 501).
11
Czech Republic, Estonia, Hungary, Latvia, Lithuania, Poland, Slovakia and
Slovenia.
12
Bulgaria and Romania.
13
The EU is witnessing employment growth of three percent per year in higheducation sectors (1 percent in other sectors), a change in the occupational structure in
favour of high-skilled non-manual workers and, for these workers, high employment
rates are coupled with low unemployment rates (83.2 against 4.8 percent) (EC 2007c).
14
It concerns working conditions (including pay and dismissal), health and safety at
the workplace, education, vocational training, recognition of qualifications, social
security (including health care), export of pensions once they are paid, access to
goods and services (including procedures for housing) and tax benefits (EC 2007b).
15
More information is presented in Appendix A. The justification for the category
selection is not included due to the usual constraints. But it is available from the
author.
16
But policies change over time. For instance, the UK has implemented a new Points
Based System from January 2008, and Sweden has liberalised its labour immigration
policy in December 2008. These changes would have moved the countries’ rankings.
17
The procedure on legal migration remains subject to Council unanimity with
Parliament only consulted. But: EU laws on illegal migration, internal and external
border controls, and burden-sharing of refugees fall under EU co-decision procedure.
18
Sweden’s new liberal labour immigration policy came into force in 2008.
19
Business leaders in Germany complained that shortages in skilled workers such as
engineers and computer specialists could start to have a negative effect on the
economy (Der Spiegel 2007a).
20
Currently, Austria, Belgium, Germany and Denmark continue to protect their
markets from new EU member states’ workers. “Our citizens cannot be in a worse
situation than non-EU states”, Czech minister Ivan Langer said (Goldirova 2008).
21
The report had a clear majority of 388 to 56, due to a pact between the European
Parliament’s two major parties (European Socialist Party and center-right European
People’s Party). However, the large number of abstentions (124), led by the European
Liberals and Green Party, indicated important disagreements (EurActiv 2008b).
22
This outcome was not much different from the directive on ‘posting of workers for
the provision of services’, which, after long negotiations, resulted in a lowest common
denominator regulation. It did not intrude into member state arrangements and the
practical effect was minimal (Menz 2002: 738).
7
31
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23
The German Green Card also had a marketing element as it was aimed at the US
Green Card.
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Permit UK, 19 November 2007.
Zaletel, P. (2006), ‘Competing for the highly skilled migrants: implications for the EU
common approach on temporary economic migration’, European Law Journal 12(5):
613-635.
Appendix A: Definitions of Sub-Categories
1) Numerical caps: a high score (3 points) is given if admission numbers are fixed and
small numbers permitted; declining points are given if numbers are fixed but
generous; or there is an ability to periodically adjust numbers, or there are no caps at
all.
a) 3 pts: admission numbers are fixed (quota), small numbers permitted
b) 2 pts: admission numbers fixed, but generous numbers
c) 1 pts: admission numbers fixed, but periodically adjusted, or planned
numbers announced
d) 0 pts: no numerical caps at all
2) Labour market test: a high ranking score is given if there is a strong test of the
labour market, i.e. a lack of available workers; declining points are given if employers
need only assert good faith, or the government awards points for skills, or applicants
are streamlined through pre-determined shortage occupations, or there is no test at all.
a) 3 pts: strong labour market test (i.e. lack of available native workers),
certification procedure
b) 2 pts: employers need to assert good faith or government awards points for
skills (i.e. points system), attestation procedure
c) 1 pts: applicants streamlined through pre-determined shortage occupations
(or tier system/ equivalent), no advertising necessary
d) 0 pts: no labour market test at all
3) Labour protection: a high score is given if there are stringent requirements on wage
setting and other protections such as no lay-off provisions etc; declining points are
given if there are fewer protections or no immigrant-specific legal protection other
than existing labour law.
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Lucie Cerna
a) 3 pts: stringent requirements on wage setting and other protections (dismissal
provisions, high minimum salary level, health/ safety provisions,
working hours etc)
b) 2 pts: fewer requirements on wage setting and other protections (e.g. smaller
number of conditions than for the above category)
c) 1 pts: minimal requirements on wage setting and other protections (e.g. no
minimum remuneration)
d) 0 pts: no immigrant-specific legal protection other than existing labour law
4) Employer portability: a high score is given if the foreign worker can work only for
the original employer and in one place; declining points are given for the degree to
which work authorisation is ‘portable’ between employers.
a) 3 pts: work authorisation is tied to employer, occupation/ sector and place of
work
b) 2 pts: work authorisation is tied to employer (for certain time period), but
worker has to apply for a new work permit to change
c) 1 pts: work authorisation is portable between employers in a given
occupation/ sector or region
d) 0 pts: no restrictions on employer portability (employment anywhere)
5) Spouse’s work rights: a high score is given if the spouse is not permitted to either
accompany the worker (or other dependents) or to work; declining points are given if
the spouse is permitted to obtain independent working rights, or the spouse has
unlimited working rights.
a) 3 pts: spouse is not permitted to accompany worker or to work
b) 2 pts: spouse is permitted to apply for independent working rights
c) 1 pts: spouse has unlimited working rights after a certain time period or
expedited procedure/ no labour market needs test in case spouse has to
apply for independent working rights
d) 0 pts: spouse has unlimited working rights from the start
6) Permanent residency rights: a high score is given if the temporary migrant is
prohibited from transitioning to any permanent status; declining points are given if
transitions are relatively possible, or there is an additional transition to naturalised
citizenship.
a) 3 pts: transition to permanent from temporary status is prohibited
b) 2 pts: no automatic transition envisioned (i.e. need to switch programmes) or
possibility to apply for permanent status exists (more than 5 years)
c) 1 pts: transition to permanent residency is relatively possible after some
years (3-5 years)
d) 0 pts: additional transition to naturalised citizenship (or very short time
period to permanent residence: less than 3 years)
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