The European Union’s Blue Card system – legal foundations, principles and controversies. Maciej Cesarz, PhD, Assistant Professor in the Chair of the European Studies, University of Wrocław, Poland maciej.cesarz@uwr.edu.pl To cite this article: Maciej Cesarz, The European Union’s Blue Card system – legal foundations, principles and controversies, [in:] Joanna Dyduch, Małgorzata Michalewska-Pawlak, Ryan Murphy (eds. European Union Development. Challenges and Strategies, Aspra, Warsaw 2013, pages 239-257. Abstract: In May 2009, after long and difficult negotiations, the EU Member States agreed on common rules governing the immigration of highly qualified workers from outside the Union. As a result, a new Council directive on the conditions of entry and residence of Third Country Nationals (TCN’s) for the purposes of highly qualified employment was introduced. It creates a “EU Blue Card” system and sets out the conditions and rights of residence in the issuing as well as in other Member States. The object of the directive is to improve the European Union’s ability to attract highly qualified workers from third countries and enhance competitiveness within the context of the Lisbon strategy. In this respect, the adoption of the EU Blue Card system in May 2009 demonstrated the EU’s eagerness to compete for global talent and prevent brain drain in Europe. Even before its entry into force, however, the directive has become the target of criticism. Many observers consider the program inadequate to meet the EU’s large and growing need for highskilled workers. Does the EU Blue Card offer in fact greater opportunities than comparable systems (especially US programs) to attract the brightest minds on a world-wide scale? Will it turn EU, according to the Lisbon Strategy, into “the most dynamic and competitive knowledgebased economy in the world”? This paper aims to examine the legal framework, main principles and controversies associated with adoption of the EU Blue Card directive. It also identifies the possible challenges of this initiative and possible future impact on EU labour market. The brief comparison between the EU Blue Card scheme and similar scheme operating in the US is also presented. Key words: Blue Card, European Union, immigration policy, Introduction The Blue Card scheme is considered an important breakthrough in the field of EU legal immigration policy. As a highly debated issue on both national and European ground, immigration itself affects various national policies, ranging from border controls and security issues to employment rates, social solidarity and cultural diversity. It is often perceived as a threat to public and social security of the host country’s population and presented as a main reason of decreasing of economic welfare of the EU Member States. "1 For major players involved in the European integration process immigration policy remains a sensitive area, where their sovereign rights are endangered by constantly enlarging scope of EU competence. National governments are not particularly interested in giving up parts of their sovereignty in this field for common immigration policy, so transfer of national competences onto the supranational (EU) level is proceeding slowly and in an unstable manner. Additionally, each member state maintains its own, national system of admission of migrant workers to domestic labour market and hindering establishment of coherent union’s immigration policy. Diverse regulations and national concepts how to deal with migration often make the compromise hard to achieve, even though there is common agreement on economic consequences of labour and skill shortages experienced by majority of EU member states during last decade. The global race for talent and decreasing position of EU in the world economy are leading imperatives slowly pushing forward the development of single union strategy towards legal migration, including recent regulations regarding admission of highly skilled workers from third countries. Structure and methodology The purpose of this paper is to outline the opportunities offered by the EU Blue Card directive, summarize the controversies accompanying its establishment and to asses potential future impacts of the directive on the union labour market. These questions are addressed in few steps. Firstly, the article investigates the main reasons for introducing the directive and motives that have driven the Council to facilitate admission of high skilled labour force from third states. The investigation is based on a brief description of demographic challenges, transformations of the labour markets and the global competition for highly skilled workers. To prepare the ground for a more detailed analysis, second section outlines the previous development of the EU’s immigration policy towards adopted Blue Card scheme. EU regulations on migration of TCN’s are brought as a short legislative context, necessary to explain why the Blue Card directive is perceived an important breakthrough in the field of legal migration into the EU. Thirdly, the content of a directive is shortly presented, including its aim and scope, criteria for admission and application procedure. The wording of the directive is examined to give an overview of the general concept of the Blue Card scheme as proposed by the Commission and confirmed by the Council. Particular emphasis is put on the rights accorded by the Directive. Grounds for refusal, withdrawal or non-renewal of the Blue Card and implementation provisions are also outlined. The fourth section will turn to the main controversies raised in the Blue Card debate. It explains why the directive has become the target of criticism and why it is often considered inadequate solution to meet the EU’s growing need for highly skilled immigrants. The potential benefits resulting from the Blue Card scheme are explored with short comparison to rights offered by selected type of US visa as similar instrument used in order to increase employment of foreign professionals. In the last, fifth section a conclusion is given. It is based on the findings on a field study carried out for the purposes of this paper. The main results of the research are listed in order to come up with a final answer to the main research questions. In this part of the paper it is "2 investigated how the Blue Card Directive may influence the flow of skilled immigrants into the European Union. In the paper it is argued that the final impact of the Blue Card Directive on migration rate of highly skilled into the EU may be positive, but highly insufficient to compensate qualified labour shortages in relevant sectors of EU Member States economies. As it is not likely to increase the size of skilled migration significantly, it will not improve the EU position in the world race for talent. The reasons are related to the Blue Card inherent design problems and EU itself as generally less attractive place for highly skilled workers, offering not only worse legal status to the qualified migrants but also due to language barriers. Regarding the consequences for sending countries, it is argued that the Blue Card directive is likely to lead to brain drain, as preventing mechanisms contained in its wording do not guarantee sufficient protection of sensitive sectors of economies of the countries of origin. The methodology used for the purpose of this paper is deeply rooted in European studies, which is adhering to interdisciplinary approach. Therefore the article combines legal analysis with comparative politics – the last one is particularly useful for comparing the Blue Card scheme with US visa regime. The main source of information are official documents produced on the level of the EU, especially original text of Council Directive 2009/50/EC of May 2009 on the conditions of entry and residence of Third-Country Nationals for the purposes of highly qualified employment and documents of main EU institutions involved in the decision-making process. The paper is also based on extensive review of the recent literature directly related to the Blue Card directive, and more general literature about the EU’s immigration policy, revealing the broader context of EU strategy in this field. The definitions used for the purpose of this paper are mostly refer to the meaning established by the Blue Card directive. 1. Reasons for introduction of the EU Blue Card scheme The Blue Card Directive adopted by the UE was generally devised as a measure aimed at facilitating the entry of highly skilled migrants into the Union, with a view to counteract the EU's future lack of labour and skills through the increased entry of skilled workers from outside its borders. Europe is experiencing a growing shortage of highly-qualified workers in fields such as engineering and informatics, and there is an important future demographic problem, which originates from people growing older, as well as too few babies being born throughout the Union (Björklund, 2011). According to data presented by Eurostat the EU’s population will only continue to grow up to 521 million till 2035 and then start to decline to 506 million in 2060 (Eurostat, 2008a). If one believes the forecasts, this ‘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’(Eurostat, 2008a). It must be mentioned, however, that this demographic trend will affect Member States differently – some of them already suffer from substantial labour and skill shortages and situation is constantly getting worse. In countries like Germany, Italy, Hungary or Latvia negative changes are more noticeable, since they experience serious decline of the national working age population (European Commission, 2005b). "3 The demographic changes have significant implications for the political, social and economic situation of EU countries. One of the main problems facing European society at the beginning of the 21st Century is the growing imbalance between the number of active workers and retired, which puts welfare systems of EU member states under pressure. EU experts calculate that the number of employed people in the whole EU27 population is expected to decrease from 62.7% in 2004 to 56.7% in 2050. This gives a fall of 52 million or even 110 million in case if migration stops (European Commission, 2005b). The decreasing fertility is combined with an increasing live-expectancy – 30% of the population in the EU will be older than 65 in 2060 (Eurostat, 2008a). This will reduce the EU workforce and thereby slow down economic growth. Increasing cost of the benefits granted to the retired population has its implications for pensions and other policies; it also constitutes a real challenge to social security and health care. Systems of pensions in European welfare states today make up over 40 % of the total expenditure on social security, resulting in deepening deficit. Experts estimate, that without any countermeasures Europe’s social systems would not be sustainable in the twenty-first century (EurActiv, 2007). Moreover, EU enterprises have permanent problems in filling present job vacancies, which will bring negative effect on EU Member States productivity level, economic growth and European global competitiveness. Thereby, a key argument underlying debates about policy measures aiming to stimulate immigration is that the EU is suffering from a decline in population because recently the fertility rates within the EU member states have fallen sharply (Castles, 2006). There is also a special need for highly skilled immigrants, which arises from transformation of the labour market. Globalization and the technological innovations caused that the economies of the EU Member States transformed from industrial to knowledge-driven economies (Zaletel, 2006). In this sense, human resources became a central factor for encouraging economic growth. The governments generally confirm that inflow of highly skilled workers can contribute to the accumulation of human resources. Furthermore, they are aware that imported qualified labour force may have positive spill-over effects on the economy by transferring skills and technologies (Zaletel, 2006). The insufficient internal qualified labour force and inefficient EU policy in this field have pushed Member States to adopt their own regulations to attract highly skilled immigrants. Such diversity in regulations is surely weakening EU as a global competitor – from the outside the Union looks more like a group of scattered labour markets rather than one potential unified workplace. The 27 demand-driven systems of admission cover selected categories of highly qualified TCN’s and follow global trend of liberalizing their schemes, but they have different structures, origin, aims and use various definitions of the highly skilled worker. Besides, these systems present a different level of their openness, which is probably influencing to some extent the final decision over the employment destination. While Member States like the UK, Ireland and the Netherlands have rather open programs for highly skilled migrants, countries such as Sweden, Austria, Denmark, Italy and Spain are considered rather restrictive. Generally, diverse national schemes make the admission procedures, rules and regulations very complicated for potential immigrants from the third states (Cerna, 2008).The EU, however, with the level of 1.72% third-country highly skilled workers of the total of the employed population, still lags behind all the other main immigration countries, such as Australia (9.9%), Canada (7.3%), US (3.2%) and Switzerland (5.3%). These figures show Europe’s relative inability to encourage "4 highly-skilled third-country workers and to cope with demographic problems (Gümüs, 2010; Björklund, 2011). It is clear, that in comparison with other places of destination the EU is unattractive for highly skilled immigrants and an argument that Australia, USA and Canada developed their immigration policies much earlier is not justifying European poor position in a global race for talent (Shachar, 2006). Thus, the Blue Card system simplifies the procedures and lowers the barriers for highly skilled immigrants, making the EU more attractive and transparent. By adoption of such legal tool the EU attempts to represent itself as a single destination area for highly skilled migrants, which is beneficial because the natural advantage of the EU as a whole is bigger than that of single Member States (Zaletel, 2006). 2. Towards the EU Blue Card – the development of EU immigration policy The 2009 Stockholm Program introduced the new multi-annual agenda for EU justice and home affairs area, aimed at the establishment of a demand-driven, flexible labour immigration policy, which would be an up to date response to the needs of EU Member States. This attempt to regulate subject area was not the first one, as the problem was raised by the Commission ten years earlier. In 1997 it put forward a proposal of a Convention for the first admission and residence of TCN’s to the Member States under the intergovernmental provisions of the Third Pillar of the TEU, Justice and Home Affairs (European Commission, 1997). With the transfer of much of the JHA provisions into the supranational First Pillar after the Treaty of Amsterdam in 1997, the Commission tried again with another proposal in 2001, this time for a Directive concerning the conditions of entry and residence of TCN’s for the purpose of paid employment and self-employed economic activities (European Commission, 2001). The target group of this directive was much broader in comparison to today’s Blue Card directive, however it seems that it was a legal antecedent of the second one, as there are lot of similarities as to the aim, admission criteria and set of rights accorded to TCN’s. The representatives of the Member States in the Council of the EU were not particularly interested in this initiative and it eventually turned out fruitless (Bertozzi, 2007). The importance of development of measures of legal immigration was also stressed in the 2003 Thessaloniki European Council and Hague European Council in 2004, where Commission envisaged establishment of harmonized immigration policy guidelines. Taking into account little probability of adoption of binding piece of legislation, the Commission produced in 2005 a Green Paper devoted to EU legal economic migration management (European Commission, 2005a) and Policy Plan on Legal Migration in 2005 (European Commission, 2005 b). Both documents put special emphasis on labour and skill shortages suffered by the Member States and expressed the urgent need of effective migrants circulation throughout the EU territory. The Policy Plan was based on sectorial approach and contained list of measures that should be adopted until 2009, including one framework directive concerning admission of highly skilled third country workers. A public consultation carried out with the Green Paper in 2005 revealed that a sectorial approach was more favoured than a horizontal one, also the sector of highly qualified workers was more likely to get support from the Member States than that of lower skilled workers (European Commission, 2005 a; Guild, 2007). As a result of an adopted road map policy, at the High Level Conference on Legal Migration in Lisbon in September 2007, Franco Frattini, Commissioner for "5 Justice, Freedom and Security, scheduled the proposal for the first directive from the Policy Plan. On October 23rd, 2007 the moment arrived and the Blue Card directive, formally called “Council Directive 2009/50/EC on the conditions of entry and residence of Third Country Nationals for the purposes of highly qualified employment” was proposed (Eisele, 2010). 3. Content of the Blue Card directive The “Council Directive 2009/50/EC of May 2009 on the conditions of entry and residence of Third Country Nationals for the purposes of highly qualified employment” is the first significant attempt to introduce harmonized policy leading to successful management of economic migration and strengthening the position of the EU in the global competition for “best and brightest” (Nielsen, 2009). As a tool used by the EU for attracting the highly skilled immigrants it should be able to compete with parallel US, Canadian or Australian programs, which have proved their effectiveness by luring qualified workers from all over the world (also from European states) to domestic labour market. In union’s policy plan on legal migration, which was presented in 2005, the Commission made five legislative proposals concerning different categories of TCN’s. The Blue Card directive is the first, and probably most relevant of these proposals. It was agreed on the basis of Article 79 Treaty on the Functioning of the European Union and it was due to be implemented into national law till 2011. Generally stated, the object of this directive is to improve the European Union’s ability to attract highly qualified workers from third countries. The aim is not only to enhance competitiveness within the context of the Lisbon strategy, but also to limit brain drain. It is designed to: facilitate the admission of these persons by harmonising entry and residence conditions throughout the EU and simplify admission procedures but also to improve the legal status of those, who are already in the EU (Article 1). The directive applies to highly qualified TCN’s seeking to be admitted to the territory of a Member State for more than three months for the purpose of employment, as well as to their family members (Article 3). At the heart of the Commission’s proposal was the definition of who is a highly qualified migrant that should be admitted to the EU under the Blue Card directive. Instead of giving a broad definition of the target group, the Commission opted for a split definition to make misgivings amongst the Member States less likely (Meyer, 2010). A key term in that respect is “highly qualified employment”, which “means the exercise of genuine and effective work under the direction of someone else for which a person is paid and for which higher educational qualifications or at least three years of equivalent professional experience is required” (article 2b). This term operates with strict relation to “higher professional qualifications” which was defined in Article 2h, as either qualifications attested by higher education qualifications or “at least three years equivalent professional experience”. As to the conditions of admission established in the chapter II of the directive, in order to be allowed into the EU, the applicant must produce a valid work contract or binding job offer with a salary of at least 1,5 times the average gross annual salary paid in the Member State concerned. However, by way of derogation the Member States may lower the salary threshold to 1,2 for certain professions where there is a particular need for third-country workers (Article 5). The applicant must also present a valid travel document, valid residence permit or a national long"6 term visa and proof of sickness insurance. For regulated professions, a TCN who applies for an EU Blue Card must present a document attesting fulfillment of the conditions set out under national law for the exercise by Union citizens of the regulated profession specified in the work contract or binding job offer (Article 1 and 1b) For unregulated professions, the applicant must present the documents attesting the relevant higher professional qualifications in the occupation or sector specified in the work contract or in the binding job offer as provided for in national law. Additionally, applicant must not be considered to pose a threat to public policy, public security or public health in the view of the Member State (article 5.1, f). Furthermore, according to the article 6, Member States maintain the right to determine the number of TCN’s they admit. Admission procedure, issuance and withdrawal of the EU Blue Card are enshrined in Articles 7 to 11 of the directive. If the candidate fulfill specified conditions and the national authorities decide to admit him/her, s/he is issued an EU Blue Card, which is valid for a standard period of one to four years. As the admission of the Blue Card was planned as “fast-track procedure”, Article 12.1 gave Member States a deadline of only 30 days for making their decision whether or not to issue a Blue Card (counting from the day the application was made). Member States may reject an application for a Blue Card based on a number of reasons listed in Article 8. These relate inter alia to the non-fulfillment of the admission criteria in Article 5 of the directive, the labour market situation of the Member States and ethical recruitment policies (Member States may reject an application for an EU Blue Card in order to ensure ethical recruitment in sectors suffering from a lack of qualified workers in the countries of origin thus preventing brain-drain from the sending countries. The application may also be rejected on the grounds of volumes of admission established by the Member State mentioned above or if the employer has been sanctioned due to undeclared work and/or illegal employment. Member States may withdraw or refuse to renew an EU Blue Card for reasons of public policy, public security or public health, or if the holder does not have sufficient resources to maintain him-/herself and family members without social assistance. It should be noticed, that unemployment in itself shall not constitute a reason for withdrawing an EU Blue Card, unless it lasts for longer than three consecutive months, or if it occurs more than once during the period of validity of the card (Article 13). The rights and residence in other Member States that come with the Blue Card are contained in Chapter IV and constitute a relevant part of the directive. First of all, with this card, TCN’s and their families can enter, re-enter and stay in the issuing Member State and pass through other Member States and work in the sector concerned. They should enjoy equal treatment with nationals as regards, for example, working conditions, trade union rights, social security, pensions, recognition of diplomas, education and vocational training, access to public goods and services and, free movement within the host Member State territory (article 14). After two years the Member State has the discretion to grant equal treatment with nationals for access to any highly qualified employment. After 18 months of legal residence, TCN’s concerned may move to another Member State to take up highly qualified employment (subject to the limits set by the Member State on the number of non-nationals accepted). This limited right to move between Member States is provided for in Chapter V. A full application must be made again to the second Member State authorities who determine whether to approve it or not. The procedure is the same as that for admission to the first Member State. The second Member State however may decide "7 not to allow the TCN to work until a positive decision on his/her application has been taken. If the application is refused, and this can be on the basis of the volumes of admission in accordance with Article 6, the first Member State must immediately readmit the Blue Card holder and family members without formalities (Ball, 2010). Part 4. Controversies The analysis of the EU Blue Card directive in the context of current demographic and financial situation and development of EU immigration policy raises doubts as to whether the basic aim of the initiative – to attract highly qualified workers will actually be achieved (Eisele, 2010). An attempt to assess the future impact of the Blue Card on the union labour market should start with description of potential benefits offered by the scheme confronted with its weaknesses, especially in comparison to other similar programs operating in the globalizing world. The list of benefits could include inter alia: a common consistent approach to highly skilled migration across the EU facilitating and harmonising the admission of high-skilled workers, also by promoting their efficient allocation; positive impacts on attracting, retaining and responding to existing and arising demands of companies throughout the EU for high-skilled workers; positive impacts on the whole EU competitiveness in the short and long term; strong message to potential highskilled immigrants. As an advantage system offers flexibility left to Member States to adapt the scheme to their labour market needs and policies. It also enables progressively and efficiently integrating high-skilled workers and their families in the host labour market and society. In formal sphere the Blue Card directive introduces measures to support circular migration at the EU level, transforming immigration policy into more supranational activity (Gümüs, 2010). In this sense the EU Blue Card proposal is a step in the right direction, but as it stands it is not a panacea for all the challenges posed by a lack of highly qualified workers, an ageing population and the welfare dilemma in the EU. It is even argued, that some of the built-in features may further hinder the ability of highly qualified migrants to access the job market in Europe (Costelloe, 2009). Experts reveal several shortcomings of the system, which may seriously affect its ability to stimulate immigration of skilled workers. First of all it does not replace the 27 separate migration systems of the Member States, but simply provides an additional channel of entry in a form of fast – track procedure. The added value of the EU Blue Card is definitely challenged considering that the Member States may apply their national highly-skilled admission systems parallel to the EU Blue Card as expressed in Article 3 of the directive. Most significantly, the Directive is without prejudice to the right of Member States to issue permits other than in the form of a Blue Card for ‘any purpose of employment’. Such national permits will not confer the right of residence in other Member States to TCN’s. It is implicit that national rules mentioned above can either set higher standards or lower standards than the Directive, or some combination of both higher and lower standards. The main text of the Directive does not address the question of the relationship between purely national rules on admission and the EU rules (Peers, 2009). Moreover, the common EU message to highly qualified immigrant workers is weakened by the opt-out position of the United Kingdom, Ireland and Denmark, as these Member States are not taking part in the adoption of the Directive and are not bound by or subject to its application. "8 Additionally, the Blue Card directive applies without prejudice to bi- or multilateral agreements concluded between one or more Member States and one or more third countries. This means that compatibility of the Blue Card with current immigration policy would prove challenging as many Member States are already bound by international agreements with other countries regarding labour migration, such as the ILO Convention 97. Should the standards of the Blue Card proposal fall below the standards set by these international agreements, the Member State would not be able to support it. Besides, Member States can also determine volumes of labour migration (quotas) and may set their quota at zero, which means in fact “turning of the tap” (Costelloe, 2009). If Member States retain the right to determine the number of migrant workers that can be accepted into the labour market via the Blue Card, a paramount question remains unanswered: how will the coordination between national quotas and the Blue Card regulations work? (Gümüs, 2010; Collet, 2008). The next problem is that the wording of a directive does not solve the problem of the recognition of qualifications of highly qualified Blue Card holders. According to Art 2 of the directive “higher education qualification" means any diploma, certificate or other evidence of formal qualifications issued by a competent authority attesting the successful completion of a post-secondary higher education programme, namely a set of courses provided by an educational establishment recognised as a higher education institution by the State in which it is situated”. The definition seem to be well-constructed, but it means that the Member States must accept the certificates of third countries. Considering that the system of mutual recognition of diplomas earned in the EU still creates headaches, it will be particularly problematic for Member States (Guild, 2007). Many of them have not adopted adequate legal frameworks for recognizing qualifications of workers from outside the EU, there is even no common EU framework for determining qualifications earned in external countries. As a result, a degree recognized as qualifying for a Blue Card in first host Member State may be rejected by second Member State, bringing problems in implementation of the scheme (Gümüs, 2010). Another controversies are raised by mechanisms preventing brain drain, which are stressed in the content of the directive. Even though the document explicitly acknowledges the need to minimize negative impact of highly skilled immigration on developing countries, it sounds completely unrealistic and insincere. Only Article 3 deals with these issues, giving the EU and/or the Member States the option to conclude agreements with third countries, which exclude certain professions from the scope of the directive so as to ensure ethical recruitment in sectors that suffer from manpower. It is argued that this way, the workforce in the developing country, which is signatory to the agreement, is protected, but it should be noticed, that all provisions on ethical recruitment in the Blue Card directive are optional (Eisele, 2010). Recital 22 encourages Member States, when implementing the Directive, not to pursue active recruitment in developing countries in sectors suffering from a lack of workforce. The development of ethical recruitment policies and principles in key sectors is suggested. However, as Peers and other note, encouragement in the Recitals of the Directive is not the same as an obligation to pursue ethical recruitment policies (Ball, 2010; Peers, 2009). Thus, while the issue of brain drain is mentioned and marginally addressed in the content of the Blue Card directive, it is inappropriate to speak of real safeguards to prevent the phenomenon of brain drain (Eisele, 2010; Devisscher, 2011). "9 It was previously mentioned, that the potential benefits resulting from the EU Blue Card system should be explored in comparison to rights offered by similar instruments used in order to increase employment of foreign professionals. Nevertheless, considering the Green Card a direct equivalent of the Blue Card in US can be misleading or false. American immigration system identifies two types of entrants into the USA: immigrants and non-immigrants. The immigrants are classified as individuals seeking permanent residence and naturalisation and are issued with a Green Card. The system that could be assumed equivalent to the EU Blue Card deals with the temporary resident, highly-skilled, non-immigrant – the so called H-1B category of alien, named after the type of visa that is issued according to US Immigration and Nationality Act 1952 (Ball, 2010). The objectives of this category of residence are similar to those of the Blue Card, enabling employees to employ foreign workers in “speciality occupations” for three years with possible extension to six. To obtain this most popular and sought visa a foreign worker must find first a H1B sponsorship job with US sponsoring company (employer). The status of H1B visa holder does not exclude application for a Green Card (Legal Permanent Residency), which makes this scheme more desirable since it will not deny the visa to an immigrant that has intentions of becoming permanent resident (Nielsen, 2009). Blue Card and H1B schemes present coherent approach to immigration policy on highly qualified TCN’s, however there are relevant differences: while the US system is applicable to the whole territory, the UK, Ireland and Denmark through their opt-out policy, are not included in the scope of the Directive. It should be noted, that Blue Card directive introduced only minimum harmonisation, with significant amount of discretion left to the Member States over highly qualified workers immigration policy. This means, that the advantages of harmonisation are seriously negated by maintaining national systems and inviting competition between Member States for these highly regarded immigrants (Ball, 2010). Both, US and EU schemes are declared demand-driven, however Article 6 of the Blue Card directive retains the right of Member States to determine the volume of skilled TCN’s entering the territory of the host Member State. This enables establishment of strict quota systems to be applied regardless of real demand. The US system operates on the basis of a strictly defined quotas of immigrants admitted. The next criteria of comparison is the level of simplification and harmonization of admission procedures. In case of the Blue Card Directive simplification was introduced, but harmonization is doubtful, if national systems can be maintained by the Member States controlling the volume of admission of skilled immigrants. This multi-layer system applied by the EU may in fact discourage potential applicants for a Blue Card. The H-1B system of admission can be classified as simpler and more straightforward in comparison to EU regulations. The mobility of highly qualified immigrants promoted by both systems should be also concerned. The Blue Card holders are offered freedom of movement within the Schengen area up to three months. The directive stresses the importance of intra-EU mobility, claiming that “the occupational and geographical mobility of third-country highly qualified workers should be recognised as a primary mechanism for improving labour market efficiency, preventing skill shortages and offsetting regional imbalances” (Recital 15). The message contained in this recital is unfortunately weakened by the consecutive one, which concludes that “in order to respect the principle of Community preference and to avoid possible abuses of the system, the occupational "10 mobility of a third country highly qualified worker should be limited for the first two years of legal employment in a Member State” (Recital 16). In consequence only after 18 months of legal employment highly qualified immigrant is allowed to move to another Member State to take up further highly qualified employment (Article 18). It must be noted, that the second Member State has to assess another application for Blue Card holder status that it can reject on the ground of Article 6, dealing with volumes of admission introduced by each Member State. At times of economic downturn mobility of labour is essential to ensure the maximisation of labour efficiency, and The Blue Card Directive stifles such opportunities and as a consequence makes the EU less attractive to highly skilled immigrants. As Ball proved, this overcomplicated scheme contrasts with the US system, that allows the portability of the H-1B visa between jobs without restrictions on movement anywhere within the USA and without time or number restrictions. (Ball, 2010) 5. Conclusion As it has been claimed in the previous parts of this paper, the establishment of an EU Blue Card is an important step in the right direction as it recognizes Europe’s need to participate more effectively in the global competition for the best and brightest (Nielsen, 2009). At the time when the knowledge-based economy has grown in importance, the highly skilled human resources play a key role in development of EU Member States. The subject becomes more pressing when taking into consideration demographic disadvantages and labour shortages suffered by majority of European countries. The EU Blue Card Directive constitutes the first harmonizing instrument in the area of highly-skilled recruitment and employment on the European level, stimulating intra-EU mobility. As Guild has put, the new common scheme signals to other countries that 1) the EU welcomes highly skilled migrants and 2) it is an important player in the ‘war for talent’ (Guild, 2007). On the other hand 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 and still maintain control over immigration policy. The Directive is not imposing a ‘one size fits all’ solution, but simply provides the legal framework for a tool that Member States may use or opt out of (Cerna, 2010). The Member States have different interests in relation to the Blue Card scheme, as they have varying needs in terms of demography and labour market. This resulted in the opt-out of some Member States, such as Britain, Denmark and Ireland, that are particularly concerned about their sovereignty (Gümüs, 2010). In the light of this, the Blue Card does not intend to replace the 27 immigration systems of Member States; instead the scheme offers an additional channel of entry through a new common procedure while allowing for different national systems to co-exist (Cerna, 2010). This makes EU Blue Card a less effective tool and the EU as a whole a less appealing place to attract highly skilled workers. Furthermore, the scheme itself should offer better predictability and simplicity than the EU’s 27 distinct existing national systems. Besides national quotas, the directive contains a number of other safeguards, for example the applicant needs to secure at least one-year work contract before even reaching Blue Card fast-track procedure. This, as Cerna and others state, calls the scheme’s added value into question. Allowing the member states to set quotas just adds another layer of protectionism to the EU labour market, and does not make the Blue Card more attractive to "11 highly skilled workers (Cerna, 2010; Apap 2008,). Additionally, the Blue Card mechanisms preventing brain drain are relatively weak and may result in a further loss of skilled workforce from developing countries, as highly qualified workers will tend to seek the higher salaries and better lifestyle in the developed EU Member States. Furthermore, even brief comparison between the US and EU’s visa regimes in terms of admission mechanisms and work rights shows that what the Blue Card has to offer potential applicants is not going to drastically alter the EU's competitive disadvantage (Nielsen 2009; Wogart and Schüller, 2011). It seems that the concept of “circular migration”, referring to previous programs of the 1960’s in Germany, Austria and the Benelux countries will not change drastically the labour shortages in the EU. The scheme itself cannot be the only solution to the EU’s lack of highly qualified workers, lowering birth rates and endangered welfare system. The Directive could be balanced by an EU wide project to enhance employability of EU citizens across the EU. The most obvious example would be to increase EU investment in languages training and in supporting internships and recruitment across intra-EU borders (Gümüs, 2010). An improved immigration policy should be accompanied by other social initiatives, such as those that incorporate more women and older people into the workforce, which must be developed in tandem with re-training and placement programs for the unemployed and under-employed in order to fill the gaps (Costelloe, 2009). The new approach should be partly based on best practices borrowed from countries chosen as a mostly desired destination place by highly skilled immigrants. Notwithstanding the advantages of the Blue Card scheme listed in sections above it seems to be only the first step potentially improving the position of the EU in an intensifying global war for talent. Bibliography 1. Apap J. (2008): An analysis of the proposal of the EU Blue Card for Highly Skilled Migrants: the Proposal for a Council Directive on the Conditions of Entry and Residence of Thirdcountry Nationals for the Purpose of Highly Qualified Employment, Brussels. 2. Ball, R. 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