The revision of the EU Blue Card Directive. An opportunity to establish a higher standard of rights for labour migrants in the European Union?

Table of Contents

1. Introduction

2. Current state of research and introduction to research questions

3. The development of the Eli’s sectoral labour migration framework, the Blue Card Directive and its current revision
3.1 The development of the Eli’s sectoral labour migration framework
3.2 The negotiations on and implementation of the Blue Card Directive
3.3 The current revision

4. Theoretical Considerations
4.1 The concept of migration management
4.2 Utilitarian approach to migration management and the fragmentation of rights within the EU’s sectoral labour migration framework
4.3 The concept of core rights and trade-offs between rights and scope
4.4 The role of the European Parliament in asylum and labour migration policy-making

5. Method
5.1 Choice of actors and purpose of interviews
5.2 Interview technique, data and analysis

6. Analysis Results
6.1 Analysis of the Commission proposal
6.2 Interview analysis results
6.3 Analysis of amendments tabled by Shadow Rapporteurs and the EMPL Rapporteur
6.4 Analysis of the final LIBE report

7. Discussion

8. Outlook

9. Literature

Executive summary

This thesis explores the first phase of the revision of the European Union (EU) Blue Card Directive from June 2016 to June 2017. Out of the four EU labour migration Directives, the Blue Card aims to attract highly-skilled third country nationals to the EU and grants those admitted a favourable set of rights. In the revision, the European Parliament is for the first time fully involved as a co-legislator for the Blue Card Directive. While in the scholarly debate little attention has been paid to the role of the European Parliament in labour migration policy-making, existing research indicates that the European Parliament seeks to strengthen labour migrants’ rights. In this context, this thesis asks the question to what extent the revision process offers the opportunity to strengthen Blue Card holders’ rights. At the same time, strengthened rights for Blue Card holders inevitably result in an increase in the diverging treatment of labour migrants in the EU. In light of this ambivalence, this thesis aims to not only analyse opportunities for strengthened rights for Blue Card holders, but also to what extend the revision of the Blue Card Directive offers the opportunity to establish a higher standard of rights for labour migrants in the EU. This analysis shall complement academic literature that questions the practice of granting labour migrants in the EU different rights, but lacks of research on the manner in which the more preferential treatment of highly- skilled labour migrants is justified by actors in the European Commission and Parliament. Addressing this gap in research, this thesis offers new insights into how involved actors from the European Commission and Parliament address Blue Card holders’ rights and the diverging treatment of labour migrants in the EU.

To achieve its analysis objective, this thesis uses a methodological triangulation approach of qualitative policy document and interview analyses. It finds that the Commission’s proposal and the Parliament’s involved Committees propose to strengthen Blue Card holders in several regards. At the same time, findings indicate that the perception about labour migrants’ economic contribution, their perceived scarcity and their intended duration of stay determine the rights granted. The results suggest that a revised Blue Card might serve as a reference for all labour migration Directives and future initiatives regarding equal treatment and safeguards to protect permit holders from the loss of status. In terms of rights to family reunification, access to long-term residence and intra-EU mobility, the thesis’ findings raise doubts whether strengthened rights can benefit labour migrants that are not categorised as highly-skilled or do not belong to a comparable category.

List of abbreviations

Abbildung in dieser Leseprobe nicht enthalten

1. Introduction

Ί want to promote a new European policy on legal migration. Such a policy could help us to address shortages of specific skills and attract talent to better cope with the demographic challenges of the European Union. I want Europe to become at least as attractive as the favourite migration destinations such as Australia, Canada and the USA.” (President of the European Commission Jean-Claude Juncker in his political guidelines for the next European Commission; Juncker 2014, no pagination).

The European Commission (hereafter also EC or Commission) took President Juncker’s call for a new and attractive legal migration policy into account, when it set out in its 2015 ‘European Agenda on Migration’ to reform the European Union (EU) Blue Card Directive. Initiating the Directive’s reform process, the European Commission published its reform proposal in 2016. According to the Commission, the revision shall address the shortcomings of the current Blue Card Directive and “(...) improve the EU’s ability to attract and retain highly skilled third-country nationals (...)” (EC 2016: 3). One year later, in June 2017 the responsible Committees of the European Parliament published their final report with amendments to the Commission’s proposal. This thesis aims to analyse this first phase of the revision process until June 2017 with a focus on the rights future Blue Card holders shall enjoy.

The level of rights granted determines to a great degree under which conditions Blue Card holders and their family members can live in the EU. It does not only have consequences for their protection and well-being, but also matters for their inclusion in the host member state, as it impacts on the extent “(...) to which they can take part in the labour market and society.” (Eisele 2013: 10). strengthened rights for Blue Card holders would not only benefit those highly-skilled migrants admitted under a revised Blue Card Directive, but also represent a step closer for the EU to living up to one of its core values: equal treatment. At the same time and within the EU’s sectoral labour migration framework, rights are fragmented according to the category a migrant worker is ascribed to. Currently, Blue Card holders enjoy the most preferential treatment and strengthening their rights inevitably results in an increase in the divergence of treatment among labour migrants in the EU.

In light of this ambivalence, this thesis aims to analyse to what extend the revision of the Blue Card Directive does offer the opportunity to establish a higher standard of rights for labour migrants in the EU. To achieve its analysis objective, it seeks to answer three research questions. These address the changes proposed by the European Commission and Members of the European Parliament (MEPs) to Blue Card holders’ rights, argumentations of involved actors from the Commission and European Parliament (hereafter also EP or Parliament) for or against strengthened rights and assessments by these actors of the relation between the Directive’s scope and rights granted.

The thesis’ research interest emanates from previous research findings and institutional changes. First, due to the changes introduced by the Treaty of Lisbon, the European Parliament became co-legislator in EU labour migration policymaking. Compared to the adoption of the current Blue Card Directive in 2009, the Parliament is not limited to giving its opinion, but enjoys full co-decision authority together with the Council of the EU (hereafter also Council) in the revision of the Directive. While there is little research on the relatively new role of the Parliament as co-legislator in EU labour migration policy-making, existing literature suggests that the Parliament seeks to strengthen rights of labour migrants. Second, the EU’s approach to migration management in form of its sectoral labour migration framework has been subject to criticism in the academic literature. Authors question the EU’s utilitarian approach to labour migrants’ rights and question the compliance of granting differing sets of rights with European and international human rights standards and international labour law. The existing literature reveals a lack of research on the manner in which the more preferential treatment of highly- skilled labour migrants is justified by actors in the European Commission and Parliament.

With its analysis, this thesis aims to address these gaps in the academic literature and complement previous research on the Blue Card Directive and the EU’s sectoral labour migration framework. To do so, this thesis uses a methodological triangulation approach of qualitative policy document and interview analyses. The policy document analysis focuses on the Commission’s reform proposal, the amendments tabled by interviewed actors from the European Parliament and the final report of the two involved Parliament’s committees. The interview analysis explores the interview data from nine interviews conducted with actors in the European Commission and Parliament. The analysis finds that the Commission’s proposal and the Committees’ final report propose to strengthen Blue Card holders’ rights in several regards. At the same time, the findings raise doubts to what extent a revised Blue Card Directive might serve as a reference for the revision of existing or the drafting of new Directives covering lower skill levels.

In the following, chapter two provides an overview over the existing literature on the Blue Card Directive and the EU’s sectoral labour migration framework. Based on the gaps in existing literature and links for further research, the chapter introduces the thesis’ analysis objective and its research questions. Subsequently, chapter three provides the context for the current revision by outlining the development of the EU’s sectoral framework, the implementation of the current Blue Card Directive and presents the Commission’s reform proposal. Chapter four outlines theoretical considerations on and critical approaches to the EU’s approach to migration management and the divergence of rights among labour migrants in the EU and summarises previous research findings on the European Parliament’s involvement in asylum and labour migration policy-making. The following chapter explains the thesis’ methodological triangulation approach, the choice of interview actors as well as the interview data and Mayring’s method of the qualitative content applied in its analysis. Chapter six presents the results of the policy document analysis and introduces and explains the categories that resulted from the qualitative content analysis. Chapter seven discusses the analysis findings regarding the thesis’ analysis objective and research questions and relates the results to previous research findings outlined in chapter four. Finally, chapter eight presents a short summary of the thesis’ findings, its analysis’ limitations and an overview over opportunities for further research.

2. Current state of research and introduction to research questions

This chapter aims to develop the thesis’ analysis objective and its research question from gaps and links for further research in the existing literature. Outlining the scholarly debate on the Blue Card Directive, EU asylum and labour migration policies and connecting it to the wider academic discussion on migration management, this chapter highlights those opportunities for further research that the thesis aims to address. The literature of most relevance for the thesis’ analysis objectives will be discussed in greater detail in the following chapters three and four.

Overall, Geddes and Niemann note that labour migration has received “(...) relatively little attention in the broader literatures on both European integration and migration” (Geddes/Niemann 2015: 530), while labour migration policies in member states and other countries have been subject to extensive research. One explanation for the lack of research on EU labour migration policies might be the fact that it is a comparatively new field of EU policy-making, with the Blue Card being adopted in 2009 and the other three Directives as part of the 2010 to 2014 Stockholm programme in 2011 and 2014.

Out of the existing literature, papers that focuses on the development of the EU’s sectoral labour migration framework and critically analyse the subsequent fragmentation of rights among labour migrants are of particular interest (Carrera 2007, Carrera et al. 2014, Guild 2010, Verschueren 2016, Friðriksdóttir 2016). Authors of this strand discuss the Blue Card’s utilitarian approach towards migration and to what extent different sets of rights granted to labour migrants in the EU are challenging the human rights principle of equal treatment. Closely connected is a debate on the relation between rights granted to labour migrants and the scope of labour migration policies, posing the question if more rights granted lead to stricter admission criteria and lower numbers of admission (Carrera et al. 2014, Cholewiński 2014, Ruhs 2014). Authors disagree on whether migrants’ rights should be restricted to allow for higher numbers of admission and which financial and social costs are related to the restriction or granting of rights. Of similar importance is a third strand of literature that analyses the emergence of the concept of migration management and its implementation (Entzinger et al. 2004, Menz 2009, Geiger/Pecoud 2010, Betts 2012, Castles et al. 2014). Scholars debate whether economic needs and pressure from local industries or states’ concerns over border sovereignty, the cohesion of the national community and unwanted competition for local workers have a greater impact on migration policies.

Acknowledging the European Parliament’s co-decision authority in EU asylum and labour migration policies, a further strand of research analyses the positions of the European Parliament towards asylum legislation (Acosta 2009, Lopatin 2013) and towards the Blue Card, the Single Permit and Seasonal Workers Directive (Roos 2015, Friðriksdóttir 2016). Authors discuss in how far the European Parliament, after gaining co-decision authority in the respective policy fields, took more restrictive positions on EU asylum policies and more migrant-friendly positions on EU labour migration directives. Also focusing on the increasing influence of the EU institutions on labour migration policies, Gsir and Menz analyse the discourse promoted by the Commission around the adoption of the Blue Card Directive (Gsir 2013, Menz 2015). The authors review the Commission’s effort to promote labour migration in face of member states’ resistance by linking migration with global competitiveness and by taking concerns over labour migrants’ perceived integration capabilities as a decisive factor into account.

The council negotiations that led to the Blue Card Directive and its subsequent implementation attracts considerable attention among scholars (Gümüş 2010, Cerna 2010, Cerna 2013, Cerna 2014a, Eisele 2013, Roos 2013, Kalantaryan/Martín 2015). Authors agree that the prevalence of member states preferences compromised the initial objective of the Directive and analyse the infrequent use of the Directive. Following the European sovereign debt crisis, Cerna analyses in how far the crisis has led to more restrictive or more liberal highly-skilled migration policies (Cerna 2016) and Triandafyllidou and Marchetti analyse the consequences for low-skilled migration (Triandafyllidou/Marchetti 2014). Cerna suggests that in case of policies for highly-skilled, the crisis led to liberalisations and restrictions, depending on the impact of the crisis on a specific member state and lobby efforts by employers. In case of low-skilled migration, the authors call for an EU sectoral policy for the domestic work sector and find that in the care and domestic work sector demand tends to persist albeit the crisis. Finally, and of less relevance for this thesis, but nonetheless representing a considerable part of the literature on the Blue Card Directive, are papers comparing the Directive with other types of highly-skilled migration policies of EU member states or of the USA, Canada, Australia and New Zealand (Berchtold 2013, Cerna 2014b, Facchini/Lodigiani 2014, Adamo/Wind 2015).

A key distinction between the introduced literature marks the difference between critical and descriptive approaches. Papers belonging to the former category tend to question the concept of the global race for talent, the economic rationale guiding these policies and the fragmentation of rights among labour migrants based on the migrants’ perceived economic value. The latter tend to describe the policies’ features, compare them among each other and assess their potential to increase the attractiveness of the host state or region for highly-skilled migrants. As Somer concludes in her paper on trends and gaps in the academic literature on EU labour migration policies, the “(...) vast body of literature analysing EU legislation in this area [highly-skilled migration, A.R.] has - either more or less explicitly - taken over the competitive rationale underlying these policies.” (Somer 2012: 5). Consequently, the analyses of granted rights in different policies tend to review the effect of different sets of right on the attractiveness of the EU as a migration destination (ibid. 7). Without asking why common rights are not granted as a standard to all workers in the EU irrespective of their status, these researches reproduce the underlying competitive logic and hinder further reflection on the fragmentation of rights (see also Huke 2011: 7). Somer notes that writings on lower-skilled migration policies have critically questioned the restrictions in place for this group of migrants and contrasted them with policies for the highly-skilled (Somer 2012: 17). At the same time, literature analysing highly-skilled migration tends to not transcend its subject matter and overtake official policy discourses (ibid.). She suggests that: “Further research on the manner in which EU policies have constructed and justified the ‘generous’ framework for highly skilled migrants, and separated this framework from the policies in place for lower-skilled migrants, would provide a valuable contribution to the overall literature on political and organisational motives and dynamics driving EU migration policy-making in this area” (ibid.).

Research questions

This thesis aims to address two major questions for further research that emanate from the outlined research in context of the EU’s sectoral labour migration framework. Taking Somer’s observation into account, this thesis addresses these questions from a critical perspective towards the Blue Card Directive. In that sense, it aims to not take over, but to question the European Commission’s discourse, the Directive’s utilitarian approach towards migration and the resulting more favourable treatment of Blue Card holders compared to other labour migrants in the EU.

The two identified topics for further research are:

First, to what extent the full involvement of the European Parliament in the reform process offers the opportunity to strengthen rights of Blue Card holders and broaden the Directive’s scope. In other words, in how far MEPs will push for strengthened rights as during the adoption of the Single Permit and Seasonal Workers Directives and how they will address the scope of the Directive in light of the academic debate on a trade-off between rights and scope.

Second, in which manner rights of Blue Card holders are addressed by the European Commission and Members of the European Parliament during the revision and how the more favourable treatment of Blue Card holders compared to other labour migrants in the EU is justified by actors involved in the revision.

This thesis addresses these two questions under the precondition that, on the one hand, strengthened rights for Blue Card holders would contribute to a more rights- inclusive EU labour migration policy and acknowledge the EU’s fundamental value of equality and the prohibition of any discrimination on the grounds of nationality, as enshrined in the Charter of Fundamental Rights (Charter of Fundamental Rights of the European Union (2012/C 326/02), Chapter three, Article 21.2). On the other hand, a broader set of rights for the highly-skilled inevitably leads to a further divergence of rights among labour migrants and would underscore the sectoral and discriminatory character of the EU labour migration framework. It risks bolstering the perception that migrants should be granted rights according to the economic contribution they make to their host society. Recognising this ambivalence, this thesis aims to explore in how far strengthened rights for Blue Card holders can contribute to reducing the divergence of rights by setting a higher standard in the EU’s sectoral labour migration framework. In that sense, the Blue Card Directive can serve as a reference in the revision of existing or the adoption of new labour migration Directives.

In consequence, this thesis’ analyse objective is to explore to what extend the revision of the Blue Card Directive does offer the opportunity to establish a higher standard of rights for labour migrants in the EU.

To achieve this objective, it seeks to answer three research questions.

First, to what extend does the revision of the Blue Card Directive offer the opportunity to strengthen rights of Blue Card holders?

Second, and considering the lack of research on the motives of EU decisionmakers for why to grant a more favourable treatment to highly-skilled labour migrants, how do the interviewed actors argue for their support for or rejection of strengthened rights for Blue Card holders?

Third, and regarding the academic debate on the relation between rights for labour migrants and the scope of labour migration policies, how do the European Commission and Members of the European Parliament address the scope of the Directive in relation to rights of Blue Card holders?

By answering these questions, the thesis shall help readers to better understand the dynamics and motives at play in EU labour migration policy-making with a particular focus on the European Parliament. So far, “much of the scholarly literature on EU migration policymaking insists on stressing the centrality of intergovernmental decision-making and the role of national governments.” (Menz 2015: 567) while the EP’s recent roles in labour migration policy-making have received little attention so far. This thesis addresses this gap in academic literature by analysing the argumentation and positions of decision-makers in the European Parliament. It furthermore addresses the lack of knowledge on how the more generous framework for highly-skilled migrants is justified by actors advocating for it, by analysing how actors in the European Commission and Parliament justify granting or restricting rights to highly-skilled labour migrants, which rights they regard as fundamental and which as negligible and how they assess the divergence of rights between highly-skilled and medium- and low-skilled labour migrants in the EU. By focusing on the first year of the revision process that is likely to last for two to three years, findings of this thesis can represent the ground for further research during the revision process or after its completion or failure. Findings can help to better explain actors’ changes or persistence in positions during negotiations and support the analysis of the European Parliament’s final position.

3. The development of the EU’s sectoral labour migration framework, the Blue Card Directive and its current revision

This chapter aims to provide an overview over the development of the EU’s sectoral labour migration framework to help readers better understand the dynamics and logic behind the development of EU labour migration policy. On this basis, the chapter aims to introduce the rationale of the Blue Card, the shortcomings of the Directive, which became visible in its implementation and resulted in its revision. Finally, to present the Commission’s take on the revision process and outline the political and socio-economic context it takes place in.

3.1 The development of the EU’s sectoral labour migration framework

The first significant step in the development of a common EU migration policy has been the adoption of the Treaty of Amsterdam in 1999, which gave the EU competences in external border control, visa, asylum and legal migration policy. Even though this change allowed the European Commission to initiate and shape EU asylum and migration policy, national preferences could be secured, as member states ensured to take decision in the Council in unanimity (Cerna 2014a: 77). Setting the direction for this new EU policy field, the European Council adopted in the same year the five-year Tampere Programme, including priorities for a common EU asylum and migration policy. These aim at establishing partnerships with countries of origin, a common European asylum system, fair treatment of third country nationals and a more efficient management of migration flows (Presidency Conclusions on the Tampere Programme 1999, no pagination). In particular, the latter objective with its focus on border control and irregular migration illustrates what Carrera et al. termed the “prevalence of a security-centred paradigm” (Carrera et al. 2011: 2) within the programme. Schain summarises that in the five- year period of the Tampere programme member states achieved considerable progress on joint efforts for external border control and in the fight against illegal immigration, while “no progress at all” (Schain 2009: 100) has been achieved on co-ordinated policies on labour migration. This conclusion also relates to the fact that the European Commission’s 2001 proposal for a ‘Directive on the conditions of entry and residence for the purpose of paid employment and self-employment activities’ failed after having been met with scepticism by member states. The intention to horizontally regulate the entry and stay of all migrants undertaking paid or self-employed migrants was a step too far for certain member states that “(...) expressed deep concern about the possibility of having ‘more Europe’ in these nationally sensitive fields.” (Carrera et al. 2011: 3).

Replacing the Amsterdam Treaty as the framework to govern EU asylum and migration policy making, the Hague Programme adopted in 2004 introduced important institutional changes. It granted the European Commission the sole right to initiate laws, introduced Qualified Majority Voting (QMV) in the Council and made the European Parliament co-legislator (Luedtke 2009: 3). However, these changes applied only to asylum and irregular migration, but not to legal migration policies, excluding labour migration, family reunification, long term residence and rights of residing third country nationals from the Parliament’s veto power and the Council’s qualified majority vote (ibid.). Luedtke states that the scholarly debate on the reasons for this “division of labour” (ibid.) hints to the fact that the “(...) exclusion of unwanted immigrants (i.e., asylum seekers and illegal immigrants) is a less controversial role for the EU than coordinating the inclusion of legal immigrants.” (ibid.). Nonetheless, the Presidency Conclusions on the Hague Programme acknowledge that legal migration “(...) will play an important role in enhancing the knowledge-based economy in Europe” (Presidency Conclusions on the Hague Programme 2004:19) and calls upon the Commission to present a “(...) policy plan on legal migration including admission procedures capable of responding promptly to fluctuating demands for migrant labour in the labour market” (ibid.).

The Commission responded to this call by launching its policy plan on legal migration in 2005, following a public consultation on its Green Paper on an EU approach to managing economic migration. According to Menz, this paper constitutes a change in strategy by the Commission following the defeat on its 2001 proposal for a horizontal Directive in two ways (Menz 2015: 561). First, the Commission dropped the concept of a horizontal approach and opted for specific Directives on chosen groups of labour migrants (ibid.). Second, the EC linked labour migration to the question of remaining globally competitive and to the goals of the Lisbon strategy by stating that:

“In the short to mid-term, labour immigration can - as part of Lisbon Strategy’s comprehensive package of measures aimed at increasing the competitiveness of the EU economy - positively contribute to tackling the effects of this demographic evolution, and will prove crucial to satisfying current and future labour market needs and thus ensure economic sustainability and growth.” (EC 2005: 5).

The Commission’s policy plan proposes four specific Directives regulating the entry and stay of highly skilled workers, seasonal workers, intra-corporate transferees and remunerated trainees and a general Directive establishing a common framework of rights for labour migrants (EC 2005: 6). This sectoral approach was heavily criticised during the public consultation, including a statement of the European Economic and Social Committee (EESC), highlighting that “if the European Council were to opt for a sectoral approach (geared towards highly skilled migrants), it would be discriminatory in nature.” (EESC 2005: 21). The fact that the Commission eventually did not take these concerns into account, relates to the strong opposition by key member states that made it “(...) politically impossible to move beyond this sectoral approach.” (Geddes/Niemann 2015: 531).

The first concrete result of the Commission’s policy plan was the proposal in 2007 for and the adoption of the Blue Card Directive in 2009. The Commission’s public consultation showed that out of the five suggested instruments, member states favoured an instrument for highly-skilled migrants, which member states expected to be admitted in only small numbers and classified as “good and harmless” (Cerna 2014a: 78). Adding to this, the negotiations on the Blue Card took place in context of growing recognition of the importance of talent recruitment for the knowledge based economies in Europe. Some member states had already joined traditional migration destinations such as the US, Canada, Australia and New Zealand in a global competition for highly-skilled migrants, termed by Shachar as the “race for talent” (Shachar 2006: 150). This is manifested not least in the introduction of highly-skilled migration policies in the early 2000s in France, Germany, the Netherlands, Denmark and the UK (Facchini/Lodigiani 2014: 11-15) as well as in Belgium and Italy (Gsir 2013: 97).

This thesis is informed by the fact that the revision of the Blue Card Directive allows for conclusions about to what extent the first full involvement of the European Parliament as a co-legislator will result in strengthened Blue Card holders’ rights, compared to the current Directive that has been adopted by member states alone. The last major institutional changes in EU decision-making on labour migration policy that enable this research interest, are the changes introduced by the Lisbon Treaty that entered into force in 2009. The Treaty changes expanded the Ordinary Legislative Procedure (OLP) to the field of legal migration, effectively removing the exception introduced through the Hague Programme, making the European Parliament co-legislator and introducing Qualified Majority Voting in the Council (EP 2017e: 2). Also, the influence of the European Court of Justice has been increased by expanding its jurisdiction to fully cover the field of asylum and migration (ibid.). Carrera et al. add that the Lisbon Treaty made the Charter of Fundamental Rights legally binding - making it primary EU law that serves to examine the validity of secondary EU legislation (EP 2017e: 1) - which is likely to aid the European Court of Justice in its review and interpretation of EU migration law (Carrera et al. 2011: 6). The Lisbon Treaty furthermore introduced changes to the Treaty on the Functioning of the European Union (TFEU) by adding new provisions that for the first time expressly deal with labour migration policy (ibid.). Article 79, paragraph 1 of the TFEU states:

“The Union shall develop a common immigration policy aimed at ensuring, at all stages, the efficient management of migration flows, fair treatment of third- country nationals residing legally in Member States (...)”. Paragraph 5 in the same article states: “This Article shall not affect the right of Member States to determine volumes of admission of third-country nationals coming from third countries to their territory in order to seek work, whether employed or self-employed.”

Even though member states did exclude numbers of admission from the EU’s competence on labour migration policies, Carrera et al. conclude that the Lisbon Treaty offers a clear “possibility for Europeanisation” (ibid. 7) to move forward in legislating other aspects of labour migration, including admission conditions and rights of labour migrants. It is the aim of this thesis to explore such a possibility by analysing in how far the full involvement of the European Parliament in EU labour migration policy-making allows to strengthen rights of labour migrants in the EU.

Following the entry into force of the Lisbon Treaty, the European Council adopted the Stockholm programme for the period 2010 to 2014. It includes several labour migration policy objectives and proposes to create “(...) flexible admission systems that are responsive to the priorities, needs, numbers and volumes determined by each Member state.” (European Council 2010:29). Relevant for this thesis are two aspects of the programme: First, it calls upon the European Commission and the Council to further implement the Commission’s policy plan on legal migration. Second, it addresses rights of labour migrants by calling for “fair treatment of third country nationals” (ibid. 30) who reside legally in the EU and granting them “(...) rights and obligations comparable to those of citizens of the Union.” (ibid.). However, Verschueren notes that the formulation of ‘fair treatment’ is not the same as equal treatment, leaving more leeway in the application of the principle (Verschueren 2016: 378). In this context, this thesis’ analysis findings allow for insights into how the European Commission and actors in the European Parliament respond to the call for comparable rights and obligations and to what extent they seek to grant Blue Card holders equal treatment.

The post-Lisbon period saw the EU institutions responding to the Stockholm programme through negotiating and adopting three new labour migration Directives, merging two existing Directives and initiating a review process on the existing EU legal migration policies. The first Directive to be adopted in 2011 was the Single Permit Directive, followed by the Seasonal Workers and Intra-Corporate Transferees (ICT) Directives in 2014. The former establishes the right to reside and work in a member state and a single application procedure for third country nationals that already work in the EU or seek to do so. It also focuses on guaranteeing equal treatment with EU citizens, but does not facilitate the admission procedure itself. The two latter regulate the admission procedures, residence conditions and rights of migrant workers belonging to two specific job categories. In 2016, the recast of the Students Directive and Researchers Directive, adopted in 2004 and 2005, led to the merging of the two texts into a new Directive for students and researchers, trainees and volunteers. The Directive regulates the entry and stay of third country nationals belonging to one of these groups and aims to “(...) help make Europe a more attractive destination for study and research.” (EC 2016a, no pagination). Finally, in September 2016 the European Commission initiated its ‘Fitness Check on legal migration’ to evaluate the seven existing Directives^[1] (EC 2016b: 1). This assessment aims to identify gaps and to streamline and simplify the current legal framework. Even though the Commission only vaguely indicates how the outcome will be used, it indicates that the results “(...) could lead to recommendations for further policy measures in the field of legal migration, including legislative action” (ibid. 9). This is of relevance for this thesis, as future legislative action in the form of a revision of existing Directives or the drafting of new policies might be informed by progress made in the revision of the Blue Card Directive. Since this thesis aims to analyse to what extent the revision offers the opportunity to establish a higher standard of rights, future legislative initiatives would allow for research to complement this thesis’ findings by analysing if and in which regards a revised Blue Card will influence other legal migration files.

3.2 The negotiations on and implementation of the Blue Card Directive

As outlined above, the Blue Card was the first Directive introduced as part of the EU’s sectoral labour migration framework. After the proposal was presented by the European Commission in 2007, 24 member states adopted the Directive in unanimity in 2009. The UK decided to opt-out of the Blue Card, due to concerns over conflicts with its own highly-skilled migration system and was followed by the Irish government (Gümüş 2010: 443). The Danish government was, due to its permanent opt-out in Justice and Home Affairs cooperation, not part of the Blue Card negotiations and instead developed its own Green Card system targeting highly-skilled migrants (Wind/Adamo 2015: 355).

In its proposal, the European Commission envisioned the Blue Card to “(...) increase the contribution of legal immigration to enhancing the competitiveness of the EU economy (...)” (EC 2007: 2) by responding to demands for highly-skilled migrant workers and skill shortages on the EU labour market. The Directive was intended to create a “(...) level playing field at EU level to facilitate and harmonise the admission of this category of workers (...)” (ibid.) as well as a mechanism that allows for their efficient allocation on the EU labour market. The Commission found that highly qualified migrant workers did not regard the EU as an attractive destination and rather opted “(...) for поп-EU countries granting more favourable conditions for entry and stay.” (ibid. 3). In consequence, the Commission proposed a common fast-track admission procedure for highly-skilled migrants and a set of rights to increase the EU’s attractiveness. The resulting concept of the Blue Card Directive constitutes a “typical employer-driven scheme” (Facchini/Lodigiani 2014: 10). Compared to point-based systems that select migrant workers based on a set of desirable characteristics with a long-term stance, employer driven systems require migrant workers to have a job offer and serve to fill labour market gaps in the short-term (ibid. 5). This is of relevance for this thesis’ research questions, as it has repercussions on Blue Card holders’ right to legally stay in the EU. In the Blue Card’s employer-driven system the right to stay is inevitably coupled to a work contract, since Blue Card holders are not granted access to the EU labour market, but to a job position. This dependence on a work contract applies until the conditions for long-term residence are eventually fulfilled. In consequence, Blue Card holders’ right to stay is not only linked to provisions on the withdrawal or nonrenewal of their permit, but also on rights that regulate working conditions and unemployment provisions.

Eisele concludes that the 19-months Council negotiations on the Commission’s proposal illustrated a power struggle between the European Commission aiming at a high degree of harmonisation and the Council striving to keep control over the admission of highly-skilled migrants (Eisele 2013: 15). In this context, the most contested aspects were the replacement of parallel national schemes, the scope of the Directive and the admission conditions, in particular the salary level applicants have to fulfil (ibid.). In the end, member states ensured to keep national schemes and agreed to admit migrant workers who possess higher professional qualifications that can either be proven by evidence of formal higher qualification or five years of relevant and professional work experience (Article 2 Directive 2009/50/EC). Next to a valid work contract for highly qualified employment, Blue Card applicants need to fulfil a salary threshold of at least 1,5 times the average gross annual salary in the member state concerned (ibid. Article 5). Regarding rights, Blue Card holders may be granted full access to the labour market after two years in highly qualified employment, but this provision can be restricted on several grounds. Furthermore, Blue Card holders are granted equal treatment with EU citizens, more favourable conditions on family reunification and on access to long term residence status (ibid. Articles 14, 15, 16). Finally, the Directive allows Blue Card holders to move to a second member state after residence of 18 months in the first member state, including family members if they have resided together with the Blue Card holder (ibid. Articles 18, 19).

Friðriksdóttir finds that even though the Directive is intended to provide a more preferential treatment for Blue Card holders, the discretionary clauses and references to national law introduced by member states allow governments to eventually restrict rights (Friðriksdóttir 2016: 133). Additionally, the Commission intended to establish the “most favourable conditions possible” (EC 2007: 11) in regard to equal treatment, despite proposing to limit it in terms of study grants, procedures for obtaining housing and social assistance. The negotiations resulted in member states further restricting equal treatment regarding education, access to social housing and pension payments and deleting the provision for equal treatment with respect to tax benefits and social assistance (Friðriksdóttir 2016: 135). In its role as consultative body, the European Parliament issued an opinion in which it suggested to remove derogations on the equal treatment provisions (see chapter 4.4). However, “(...) there is no record that the opinions of other EU institutions, including the EESC and the European Parliament, have been taken into account by the Working Party on Migration and Expulsion during the Council negotiations.” (Friðriksdóttir quoted in Eisele 2013: 22). In the Directive’s revision, the Parliament acts as co-legislator and its position can no longer be ignored by member states in the Council. This adds to the relevance of this research, as it stresses the fact the revision allows for conclusion about how the full involvement of the Parliament results in differences in Blue Card holders’ rights, compared to its claimed complete non-involvement in the adoption of the current Directive.

Further literature on the adoption of the Directive points to the fact that the initial objectives of the Blue Card Directive, as set out by the Commission, were undermined by a “lowest common denominator” agreement (Cerna 2014: 87) and member states’ unwillingness to give up competences on labour migration (Cerna 2013: 195). Cerna points out that the Directive’s restrictions on intra-EU mobility contradict the rights-based approach member states take towards EU citizens. While these enjoy the principle of free movement of labour, Blue Card holders are faced with a waiting period and different national Blue Card versions and application procedures (ibid.). Adding to this, Eisele highlights the absence of a migrant-centred approach in the Directive, which exemplifies that “(...) the interests of individuals have been sacrificed to allow the interests of the institutional actors to prevail.” (Eisele 2013:15). Gümüş concludes that the flexibility of the Blue Card Directive puts into question whether it will lead to any “additional fairness or effectiveness.” (Gümüş 2010: 453).

Implementation of the Blue Card Directive

After the Directive’s adoption in May 2009, member states had time until June 2011 to transpose the Directive into national law. In the following implementation phase, member States have made use of the Directive with great variance, whereby 82% of the 31.953 Blue Cards issued or renewed in the period from 2012 to 2014 were issued in Germany (own calculations based on European Parliament 2015: 12).

In 2014, the European Commission published a communication on the implementation of the Blue Card Directive and identified a number of shortcomings. It has to be noted, however, that the data provided by the Commission does not allow for a thorough analysis: it only covers fully the first year of implementation 2012 and partly the second year 2013 - mainly due to late implementation by member states.

Based on the available data, the European Commission identified the low level of use and coherence between Member States as one of the main problems. As one explanation, the Commission states that the Directive “(...) only set minimum standards and left much leeway to MS through many “may-clauses” and references to national legislation” (EC 2014: 10). The Commission suggests that the required unanimity in the Council of the EU, the non-involvement of the Parliament and the subsequent difficult negotiations led to the weak Directive (ibid.). It therewith also suggests that the current negotiations can potentially result in more concrete formulations and might reduce the leeway for member states’ interpretations. However, Huke suggests that it was not only member states’ reluctance that weakened the Directive, but that the Commission also lacked support from transnational partners (Huke 2011: 25). In particular, Huke finds that the reservation towards the Blue Card of the European Roundtable of Industrialists and Business Europe, which actively contributed to the success of previous Commission initiatives in regard to the internal market, added to the watering-down of the first Directive (ibid.).

The failure to provide added value compared to national schemes is identified as one of the main shortcomings in a study conducted by the European Parliament on the Blue Card (EP 2015: 7). Concerning rights, the Parliament’s study regards “insufficient additional rights” (ibid.) as a deficiency of the Directive and suggests improving the Directive by enhancing Blue Card holders’ rights and provisions for family reunification. Finally, the European Commission states in its public communication that it is “concerned” (EC 2014: 10) over the limited set of rights and barriers to intra-EU mobility.

3.3 The current revision

The Commission’s proposal for a revised Blue Card Directive

In June 2016, the European Commission published its proposal for the reform of the Blue Card Directive. Due to the various shortcomings of the 2009 adopted Directive and the prevalent use of national schemes in all member states except Germany and Luxembourg, the Commission initiated the reform process in 2015. By doing so, the Commission implemented one part of its 2015 published ‘European Agenda on Migration’. The agenda seeks to “manage migration better” (EC 2015: 6) by reducing the incentives for irregular migration, focusing on border management, asylum policy and a “new policy on legal migration” (ibid. 14). As part of the latter, the Commission presents one concrete legislative initiative in the field of labour migration which is the revision of the Blue Card Directive (EC 2015: 15). In other words, the Blue Card is the only Directive of the overall seven Directives on legal migration that currently allows for improvements through the Ordinary Legislative Procedure.

The Commissions’ 2016 understanding of the Blue Card Directive is similar to the rationale proposed nine years earlier, when the Commission states that the aim of the proposal is to:

“(...) improve the EU’s ability to attract and retain highly skilled third-country nationals, as well as to enhance their mobility and circulation between jobs in different Member States. The objective is to improve the EU’s ability to effectively and promptly respond to existing and arising demands for highly skilled third- country nationals, and to offset skill shortages, in order to increase the contribution of economic immigration to enhancing the competitiveness of the EU economy and addressing the consequences of demographic ageing.” (EC 2016: 3). Replacing the Lisbon strategy as point of reference, the Commission suggests that a revised Blue Card contributes to the “(...) EU Growth strategy, in line with Europe 2020 priorities.“ (ibid. 2).

In its proposal for a new Blue Card Directive, the Commission addresses some of the above outlined shortcomings. This thesis’ chapter 6.1 will analyse the proposed changes in regard to the scope of the Directive and rights of Blue Card holders in detail, other major changes suggested by the Commission include to lower the salary threshold from at least 1,5 to a range from 1,0 to 1,4 times the average gross annual salary in the member state concerned (ibid. 15). Adding tothat, the lowering of the minimum duration of the required work contract from 12 to 6 months and the possibility to apply for a Blue Card from in- and outside the EU (ibid.). The Commission also addresses the contested topic of parallel national schemes and renews its 2007 proposal to replace them by a single EU Blue Card scheme (ibid. 13).

Overall, the proposal regulates the entry and stay of highly-skilled labour migrants in six chapters. They lay down the scope of the Directive (who is eligible for a Blue Card), the admission criteria (what applicants must provide and fulfil), the grounds for withdrawal or non-renewal of a Blue Card and the application procedure with safeguards for applicants (ibid. 13-16). Rights of Blue Card holders (labour market access, equal treatment, family reunification and long-term residence) are regulated in one chapter, whereby a further chapter is dedicated to the right to intra-EU mobility for the Blue Card holderand his or her family members (ibid. 1719). A final chapter includes reporting requirements for member states and for the European Commission and defines the transposition phase and entry into force (ibid. 19).

Political and socio-economic Context

Due to the changes through the Treaty of Lisbon, the revision of the Blue Card Directive fully involves the European Parliament as co-legislator and the decision on the revised Directive in the Council falls under Qualified Majority Voting. This is a significant difference: First, single member states can no longer veto decisions in the Council to push through national preferences against the resistance of a majority of member states. Second, the Parliament can veto the Council decision and its position can no longer be ignored, as compared to the previous Blue Card negotiation process. Additionally, the Parliament’s plenary vote on its position towards the Commission proposal is prepared by the Committee on Civil Liberties, Justice and Home Affairs (LIBE Committee) and the Committee on Employment and Social Affairs (EMPL Committee). The assigned Members of the European Parliament leading the negotiations on the Blue Card revision in these two Committees and in exchange with the Commission and Council, the so-called Rapporteurs, belong the Social Democrats (LIBE) and Greens (EMPL). This matters as Hix and Noury found the more left an МЕР is, the more likely the МЕР will vote in a pro-migration manner, defined as aiming to extend “rights and opportunities” (Hix/Noury2007: 191 )formigrants in the EU. Since Rapporteurs are also responsible for drafting the Committees’ reports, the Rapporteurs’ positions can potentially contribute to the Parliament finding an overall pro-migration position and maintaining it in negotiations with the Council.

Not only the institutional arrangements matter, but also the timing of the revision and the socio-economic situations in member states. The revision of the Blue Card comes at a time when EU migration policies are challenged by high numbers of asylum seekers arriving at EU borders and by member states openly contesting common approaches in the EU. The dispute around a quota system for the relocation of refugees from member states under pressure to other Member States in late 2015 and the continuously small numbers of relocated refugees (Statewatch 2017, no pagination) clearly illustrate the lack of a common approach to current migration challenges. The reluctance of member states to agree on common solutions within the frame of the Common European Asylum System matters for an analysis of EU labour migration polices. It indicates the sensitivity and complexity that surrounds matters of migration policy-making. Unlike in discussions around fiscal or trade policies, statistics and data-based evidence seem to play a minor role compared to arguments based on values, norms and identity. A recent study by the International Organisation has found that “people in Europe, in fact, are the most negative in the world towards immigration, with the majority (52%) saying immigration levels should be decreased” (IOM 2015: 8). Notably, opinions vary significantly between the different countries: citizens in the Scandinavian EU member states, Germany and Austria had a more positive opinion towards migration (ibid.). Nonetheless, the negative public attitude towards migration in many member states, which has not least become publicly visible in the rise of far-right parties with strong anti-migrant rhetoric in the recent five years, poses a challenge to EU policy makers. As Cerna concludes in her work on the impact of the European sovereign debt crisis on highly-skilled migration policies: “With increasing unemployment rates, falling GDP, and worsening economic and social conditions, it has been difficult to sell to voters that different sectors required high-skilled immigrants to fill labour shortages” (Cerna 2016: 1625, see also Galgoczi et al. 2012: 6).

Adding to that, Triandafyllidou and Marchetti note, the “(...) area in which the EU has had the highest difficulty in legislating has been the admission of third country nationals for the purposes of paid employment and independent economic activity” (Triandafyllidou/Marchetti 2014: 1). Even though the Blue Card represents one of the rather “non-problematic” (ibid.) directives compared to the Seasonal Workers or Family Reunification Directives, the difficulties in negotiating labour market access for third country nationals poses a challenge for actors involved in the revision of the Blue Card Directive.

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^[1] Long-term residents, Family Reunification, Blue Card, Single Permit, Seasonal Workers, Intra-Corporate Transferees and Students and Researchers Directives