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The Blue Card dilemma – Promoting a high standard of rights within a framework that is discriminatory in itself

By Axel Ruppert, Project Officer, European Network Against Racism

The Blue Card Directive allows highly-skilled, non-EU workers access to EU work permits. This article looks at the reform of the Blue Card Directive as well as some of the drawbacks of the proposal from an anti-discrimination perspective.

The seven EU Directives that allow migrants to legally stay in the EU look like a puzzle: they cover four different scenarios of labour migration, family reunification, the acquisition of long-term resident status as well as research, studies, training, voluntary service and au pairing. Within this puzzle, the Blue Card represents a rather small piece. It is limited in scope by covering highly-skilled labour migrants only, strongly pointing to the economic rationale of migration and has been applied in almost insignificant numbers since its adoption in 2009.

Why should one care about the reform of this piece of legislation?

The current reform of the EU Blue Card Directive offers the opportunity to establish a higher standard of rights and equal treatment for third country nationals working and residing in the EU.

The Blue Card reproduces and institutionalises the perception that migrants should be granted equal treatment only as long as they contribute economically to their host society

Improvements to the Directive could serve as a reference point when reviewing existing legislation or proposing new legislation in the field of legal migration. This is particularly relevant as the Fitness Check on legal migration – initiated by the European Commission in September 2016 to evaluate the seven existing Directives – is taking place at the same time. Even more important is the fact that migrants face various constraints when working and living in the EU. More rights and better protection for migrants would be one step closer to living up to one of the EU’s core values: equal treatment.

Why is there reason for careful optimism that the reform will lead to improvements in such a contested field as migration policies?

First, the European Parliament (EP) is now co-legislator and labour migration policy falls under Qualified Majority Voting in the Council which was not the case for the adoption of the first Blue Card Directive in 2009. This is a significant difference: the need for unanimity in the Council and the reduction of the role of the Parliament to an opinion giving body, led to minimum standards and the inclusion of many non-binding clauses in 2009. With a new voting system in place and the Parliament as an equal actor, more legal certainty for employers and migrants and stronger rights seem possible. Indeed, during the negotiations for the Single Permit Directive, which established a set of rights for migrant workers in 2011, the European Parliament managed to push for a wider application of equal treatment and more ambitious provisions than initially suggested by the European Commission. [1]

Second, highly-skilled migration is regarded as the least problematic in a field that has been described as the most difficult for Member States to reach an agreement: the admission of third country nationals for the purposes of paid employment. [2] The Blue Card is presented as a response to labour market shortages and an ageing population and a prerequisite for remaining globally competitive. It is sold as a utilitarian tool to attract highly-skilled workers to satisfy economic demands.

Hence, broadening the scope of the Blue Card and granting more rights to highly-skilled migrants becomes a question of increasing the attractiveness of the EU in a global race for the scarce resource of highly-skilled labour. In addition, due to their presumed ability to easily integrate and the perceived value of their work, highly-skilled migrants are not seen as representing a financial burden or concern for public opinion. [3]

The dilemma: Promoting a high standard of rights in EU labour migration and the further fragmentation of labour migrants’ rights according to their perceived economic value

Elspeth Guild termed the outlined rationale of the Blue Card as a, "market approach to human beings" that justifies discrimination against labour migrants based on assumptions about the nature of the work and its economic value. [4] Consequently, highly-skilled migrants are granted more rights than their medium- and low-skilled peers. Within the legal migration legislation puzzle, the Blue Card and the Seasonal Workers Directives exemplify this theoretical model by allowing for a questionable disparity in the treatment of highly- and low-skilled workers. In particular, access to long-term residence permits and family and unemployment benefits, labour market access, intra-EU mobility, family reunification and safeguards to prevent the loss of status vary significantly between the two texts. The Commission’s Blue Card reform proposal includes more favourable conditions in these fields compared to the existing Directive. On the one hand, this is good news for establishing a higher standard of rights. On the other hand, a broader set of rights for the highly-skilled inevitably leads to a further fragmentation of rights and underscores the discriminatory character of the EU labour migration framework. It reproduces and institutionalises the perception that migrants should be granted equal treatment only as long as they contribute economically to their host society. Consequently, when arguing for broadening the rights of future Blue Card holders, one has to emphasise that the granting of rights in itself, regardless of the skill-level of migrants or the impact such rights will have on the EU’s attractiveness in a proclaimed global competition for talent, should be the goal in EU policy-making.

The Commission’s reform proposal from an anti-discrimination perspective

Despite the improvements that the Commission has proposed, the rights granted to applicants and Blue Card holders remain insufficient. In particular, provisions to prevent discrimination against migrants in the workplace are not strong enough. Nationality as a ground of discrimination is only covered in EU law relating to the free movement of persons which grants limited rights to third-country nationals and is expressly excluded in the Racial Equality Directive (Directive 2000/43/EC) and Employment Equality Directive (Directive 2000/78/EC). A renewed Blue Card Directive should grant beneficiaries equal access to justice and legal support if they face any kind of discrimination in the labour market by applying the principles and safeguards set out in Directives 2000/43/EC and 2000/78/EC.

Despite the improvements that the Commission has proposed, the rights granted to applicants and Blue Card holders remain insufficient

Second, the Commission’s proposal allows Member States to withdraw or refuse to renew an EU Blue Card in the case that the employer has failed to meet its legal obligations. This provision enables Member States to sanction Blue Card holders in case of misconduct by a company. The opposite should be the case: Blue Card holders should be protected against abuse or unfair treatment by their employers. Member States should be obliged to introduce measures to prevent possible abuses, including monitoring, assessment and inspection.

Third, there is a need to strengthen the obligations for Member States to inform Blue Card holders in a timely manner about the withdrawal of their permit and access to appeal mechanisms. In order to prevent precarious employment situations in which Blue Card holders might be forced to continue to work under inappropriate conditions or neglect health issues in order to not lose their permit, unemployment in itself should not constitute a reason for withdrawing an EU Blue Card, unless the period of unemployment exceeds nine consecutive months.

Finally, in 2012 only 2.1% of the number of Blue Card holders came from Sub-Saharan Africa with almost no changes in the following year . [5] At the same time, the EU is the most preferred destination for highly-skilled workers from Sub-Saharan Africa. One explanation for this divergence between admission numbers and preference may be an implicit racial bias that prevents certain types of workers from accessing more favourable statuses. In that sense, the geographical distribution may reflect national policies and practices that reproduce forms of direct, indirect or institutional discrimination towards new candidates.

One last word

When discussing the rights and equal treatment of migrants, analysing labour migration policies can only be part of the work. A recent study by the International Organisation for Migration 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” (NB: opinions vary significantly between Member States). In light of the high levels of anti-migrant violence, hatred and sentiment in Europe, advocating for stronger measures to combat racism and discrimination and to ensure that people feel safe and welcome in Europe is more than ever a task for anti-discrimination movements.

[1] Roos, C. (2015): EU politics on labour migration: inclusion versus admission. Cambridge Review of International Affairs, 28(4), pp. 536–553.

[2] Triandafyllidou, A. & Marchetti, S. (2014): Europe 2020: addressing low skill labour migration at times of fragile recovery. Robert Schuman Centre for Advanced Studies Policy Paper 2014/05.

[3] Gsir, Sonia (2013): EU Labour Immigration Policy Discourses and Mobility. In: Refugee Survey Quarterly, 32(4), 90–111.

[4] Guild, E. (2010): Equivocal Claims? Ambivalent Controls? Labour Migration Regimes in the European Union. Nijmegen Migration Law Working Papers Series 2010/05.

[5] Colussi, T. (2016): The Impact of the Implementation of Council Directives on Labour Migration Flows from Third Countries to EU Countries. OECD Social, Employment and Migration Working Papers, No. 181.

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