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EU BLUE CARD SCHEME: THE IMPACT OF INCONSISTENT IMPLEMENTATION

January 9, 2024




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hgoldstraw@Fragomen.com

T:+44 (0)207 090 9299

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By: Jo Antoons, Harry Goldstraw, Andreia Florina Ghimis, Dominic Dietrich

In 2021, the European Union issued a new directive for an updated EU Blue Card,
aiming to make Europe a more attractive destination for highly skilled
professionals (especially in the information technology sector).

Amidst the global competition for talent, it is a crucial initiative. Except for
Denmark and Ireland (which both opted out of the EU Blue Card regime), EU Member
States had until 18 November 2023 to implement these upgrades.

Despite these good intentions, however, delayed or inconsistent national
implementation that risks fragmenting the regulatory landscape could undermine
the original vision of a Europe that offers unified and EU-wide skilled labour
immigration options. This could ultimately harm the continent’s status as a
preferred destination for highly skilled labour.

Core Principles

At its core, the EU Blue Card scheme has several key principles designed to
amplify Europe’s status as a destination for skilled labour.

First, it facilitates mobility within the EU. For instance, over time, Blue Card
holders acquire rights to move to, and work in, other EU countries. This means
migrants eventually have access to the entire EU labor market and are not
restrained to working in only one Member State.

The Blue Card also mandates that cardholders enjoy working conditions,
education, qualification recognition, social security (including unemployment
benefits) and freedom of association rights that are equivalent to the citizens
of their host EU Member State.

It also offers favourable conditions for family reunification, as well as
long-term residency rights in the EU.

New Regime

Historically, however, various national skilled-labour immigration pathways in
the EU have often provided more attractive routes for migrants, offering lower
salary thresholds and quicker processing times. The updated EU Blue Card—by
making the regime more attractive and accessible—seeks to stave off such
national competition.

It pursues this goal in a few ways. The rights facilitating intra-EU mobility
have been eased. This leverages the EU’s supranational advantage; something no
national regime can offer.

Furthermore, the range of potentially eligible applicants has been expanded to
better capture highly skilled applicants who have professional experience but
not a diploma.

Elsewhere, the minimum job offer duration has been reduced, restrictions on
changing employers have been relaxed, and the regulations around dependents are
now more accommodating, among other changes.

Fragmented Implementation

In practice, however, a fragmented national implementation may ultimately
undermine such improvements.

First, Member States have not transposed the directive at the same pace. Some
states successfully introduced national legislation by the deadline of 18
November 2023; many, however, have not. These late arrivals now require an
extension for full implementation. If this situation persists, the regulatory
landscape will be fragmented.

Second, regardless of delays in transposition, there is the risk of variation
between national legislation once implemented. The new directive (often through
‘may clauses’) provides considerable discretionary leeway to Member States
regarding national implementation.

For instance, one Member State can decide to proffer a uniquely preferential
minimum salary treatment; another Member State may decide to aggressively
liberalize its quotas framework; while a third may adopt a more permissive
approach to substituting professional experience for educational qualifications.
And, of course, states may decide to impose uniquely restrictive approaches –
limiting intake under the Blue Card pathways.

Eligibility under the new EU Blue Card for applicants with professional
experience but no relevant educational qualifications also presents an issue.

In Germany, applicants who have three years of professional experience in
information technology (IT) may be eligible, while no one else could be eligible
for this diploma-free pathway. In Italy, meanwhile, three years of IT experience
will secure eligibility, but so will five years of professional experience in
certain non-regulated roles.

The minimum salary level (MSL) landscape is equally varied. In Germany, the EU
Blue Card MSL is bifurcated cleanly between shortage and non-shortage
occupations (with the former category having a lower figure). In Italy, there is
no EU Blue Card MSL regime; rather, sector-specific collective bargaining
agreements rule the field.

This variation in national implementation—both in terms of delays and in terms
of substantive differences—risks repeat fragmentation, which in turn brings into
question whether the EU Blue Card system can ever provide an attractive skilled
immigration pathway that functions holistically across the EU.

The Blue Card’s purpose is to make Europe, as a whole, open to highly skilled
talent; not just parts of it. A multi-national business with offices across
Europe may find it frustrating when its top talent can easily enter one country
on a Blue Card, but not another.

Alignment is important because it provides clarity and predictability for
employers when sending employees to different EU Member States. It also reduces
the inefficient need for companies to visa-shop – obtaining a visa in one
country as part of eventually gaining access to another country.

Such a workaround—using intra-EU mobility as a partial ‘loophole’—ultimately
creates significant delays for employers looking to relocate employees to
countries with more ‘difficult’ EU Blue Cards.  

Additional Considerations

Further compounding this issue is the fact that national immigration programmes
continue to be powerful competitors, offering more favourable minimum
requirements and processing times compared to the new Blue Card regime.

Countries have not been forced to align their EU Blue Card-related salary
thresholds with those of their parallel national schemes. Accordingly, Member
States are likely to continue offering comparatively more favorable salary
thresholds under their national schemes. Additionally, it also does not help
that the EU Blue Card is poorly publicised, with many employers simply not
knowing of its existence.

Given these issues of fragmentation and continued national competition, along
with the lack of publicising and, therefore, a lack of understanding on the part
of national authorities, the new Blue Card may still struggle despite its many
improvements (including better European mobility rights).

To ensure the EU Blue Card is the ‘go-to’ work permit for foreign talent, the
scheme may need to expand yet further its Europe-wide benefits, while also
removing some barriers at the national level. 

Furthermore, the Blue Card’s focus on highly skilled talent does little to
address the severe skills shortages seen across Member States for skilled or
non-skilled roles. Here, national schemes are the only option. This means the
potential visa types and requirements for such migrants will vary greatly across
jurisdictions, with some providing only limited pathways – or none at all.

Looking Ahead

Ultimately, the question remains whether the European Union will ever be able to
attract talent through a centralised legislative initiative.

As the deadline for transposition to the new Blue Card was 18 November 2023 and,
in any event, most Member States have still not domestically implemented the
directive, a clear reading of the situation will likely not become available
until spring 2024 – if not later.

Regardless, observers will be keen to see if and how the new Blue Card affects
migration patterns both into, and across, the EU.

Need to Know More?

Fragomen professionals work with governments at both EU and national levels to
voice the needs of the private sector. If you are struggling to find ways to get
your employees into various EU countries, please contact members of the Fragomen
Consulting Europe team, including Partner Jo Antoons at jantoons@fragomen.com,
Managers Harry Goldstraw at hgoldstraw@fragomen.com and Andreia Ghimis at
aghimis@fragomen.com or Lead Analyst Dominic Dietrich at ddietrich@fragomen.com.
Fragomen Consulting Europe provides strategic European workforce planning
solutions, ensuring business continuity and growth.

This blog was published on 9 January 2024, and due to the circumstances, there
are frequent changes. To keep up to date with all the latest updates on global
immigration, please subscribe to our alerts and follow us
on LinkedIn, X, Facebook and Instagram


COUNTRIES / TERRITORIES

 * United Kingdom
 * Belgium


RELATED CONTACTS

Jo Antoons

Partner

Brussels (Benelux), Belgium

Email

jantoons@fragomen.com

T:+32 (0) 2-250-4900

Harry Goldstraw

Manager

London, United Kingdom

Email

hgoldstraw@Fragomen.com

T:+44 (0)207 090 9299

Andreia Florina Ghimis

Manager

Brussels (Benelux), Belgium

Email

aghimis@fragomen.com

T:+32 (0) 2 250 4879


RELATED OFFICES

 * London
 * Brussels (Benelux)


SHARE

 * Twitter
 * Facebook
 * LinkedIn

Share

 * Twitter
 * Facebook
 * LinkedIn


RELATED CONTACTS



Jo Antoons

Partner

Brussels (Benelux), Belgium

Email

jantoons@fragomen.com

T:+32 (0) 2-250-4900

Harry Goldstraw

Manager

London, United Kingdom

Email

hgoldstraw@Fragomen.com

T:+44 (0)207 090 9299

Andreia Florina Ghimis

Manager

Brussels (Benelux), Belgium

Email

aghimis@fragomen.com

T:+32 (0) 2 250 4879


RELATED OFFICES


 * London
 * Brussels (Benelux)


SHARE

 * Twitter
 * Facebook
 * LinkedIn

Share

 * Twitter
 * Facebook
 * LinkedIn


RELATED CONTACTS



Jo Antoons

Partner

Brussels (Benelux), Belgium

Email

jantoons@fragomen.com

T:+32 (0) 2-250-4900

Harry Goldstraw

Manager

London, United Kingdom

Email

hgoldstraw@Fragomen.com

T:+44 (0)207 090 9299

Andreia Florina Ghimis

Manager

Brussels (Benelux), Belgium

Email

aghimis@fragomen.com

T:+32 (0) 2 250 4879


RELATED OFFICES


 * London
 * Brussels (Benelux)


SHARE

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