Economic Migration Policy in Europe
-Attracting Highly Skilled Labors
Wen-Cheng Huang
Abstract
In this paper, firstly we observed the basic social context has changed from emigration to immigration. Now some Member States has experienced the labor shortages in some sectors. In terms of demographic surveys, in the future the whole EU will face the ageing population, in particular the considerable reduce of working population. All evidence indicates that it is necessary to change the current policy of zero immigrants and its relevant rules.
Index
1. Introduction
1.1Research background: law and social change
1.1.1 Current situation of Member States: from emigration to immigration
1.1.2 Demographic evidence: A trend of the current and future labor needs
1.1.2.1 Shortage of workforce and ageing population
1.1.2.2 How to maintaining the EU welfare system and the EU economy’s growth
1.1.3 Forming a new technology industrial community by attracting third country nationals
1.2 Research approach
2. Main Discussions of Policy Issues
2.1 General background
2.2 The advantage of regulation competition relating to attracting highly skilled workers among Member States
3. Previously Legal Issues Concerning Highly Qualified Workers
3.1 To what degree of harmonization should the EU aim at?
3.2 General framework Directive
3.3 The issues of highly skilled labors presented by Green Paper
3.3.1 Social context
3.3.2 Policy grounds
3.3.2.1 A needs approach
3.3.2.2 A necessary renewed test
3.3.3 A single application procedure combining work and residence permits
3.3.4 Allowing to change employer or sectors with some limits
3.3.5 Basic secure legal status
4. Current Proposal as regard the conditions of entry and residence of third-country nationals for the purpose of highly qualified employment
4.1 Current situation and policy grounds
4.2 Available legal remedies presented by the new Proposals
4.3 Legal backgrounds
4.3.1 Legal basis
4.3.2 Subsidiarity Principle
5. Analysis Of The Specific Rules
5.1 How to define “ High Qualified”
5.1.1 Education or professional experience: which standard is better
5.1.2 Salary threshold issue
5.2 Exception for young highly qualified labors
6. Conclusion
Economic Migration Policy in Europe
-Attracting High Skilled Labor-
1. Introduction
1.1 Research background: law and social change
First of all, I would like to point out the basic rational of this paper, and that is the vital link between law and social change. Every rule should be reasonably based on the socio-economic context of the contemporary society. Once there is a considerable social change happening in the society, the law should be subsequently changed, since the basis of the law does not exist any more[1].
1.1.1 Current situation of Member States: from emigration to immigration
Over the last three decades, international migration flows have a considerable increase[2]. Economic development of difference between, and demographic changes within, developed and developing countries, on a background of trade, political issues, have all contributed to a stable increase in workforce mobility[3].
Despite most of the continental countries are still reluctant to officially recognize that they have become the immigration countries, according to the demographic surveys, from the last century after World War II, it revealed that more and more countries changed their traditional positions from emigration to immigration[4]. Thus, it is no doubt that the migration flows do exist in each Member State, thus we should face this phenomenon and find a solution to address by changing the current migration law.
1.1.2 Demographic evidence: A trend of the current and future labor needs
1.1.2.1 Shortage of workforce and ageing population
With respect to economic immigration, the current situation of EU labor market can be mainly described as a need. Some Member States have already experienced substantial labor and skills shortages in certain sectors of the economy, which cannot be satisfied by the domestic labor markets. This phenomenon concerns the full range of qualifications from unskilled workers to top academic professionals[5].
From 2010 to 2030, in terms of current immigration flows, the decline in the EU-27’s working age population will entail a fall in the number of employed people of 20 millions. Such developments will have a huge impact on overall economic growth, the functioning of the internal market and the competitiveness of EU enterprises[6].
Eurostat projection indicates that in the EU “population growth until 2025 will be mainly due to net migration, since total deaths will outnumber total births from 2010. The Effect of net migration will no longer outweigh the natural decrease after 2025.” This will have serious influences on the number of employed people in the EU 25, as “the share of population of working age in the total population is expected to significantly reduce, from roughly 67% in 2004 to 56% in 2050.” The decline in the total population is anticipated by 2025 and the working age population by 2011. Some Member Sates, for instance Germany, Hungary, Italy and Latvia, have already experienced a decrease in the working age population, whilst in others it will happen later. These demographic trends will not affect all Member States to the same degree, but they are trends that all Member States inevitably need to face in the near future[7].
Although immigration could be a remedy to shortages of labor and skills, it is not a solution for tackling the consequences of demographic ageing in Europe, since the level of net migration required to keep the old-age dependency ratio constant would entail increases of inflows well beyond socially desirable level[8]. Therefore, in this paper, we focus on discussing the advantage of attracting highly skilled labors.
1.1.2.2 How to maintaining the EU welfare system and the EU economy’s growth Firstly, some Member States have experienced the labor shortages in several sectors in recent years. According to the demographic surveys, in the near future the whole EU will face a significant decrease of working population. Even deregulating the immigration restriction is not an effective solution to ageing society in EU. In order to maintain the current welfare system supporting by high tax absorbing from each person’s income, it is inevitable to sustain the whole number of working population in EU and to raise each worker’s productivity.
Considering globalization has changed the main business model, more and more big companies reserve their core commercial activities such as R & D or general operate in their home-countries and outsource the surrounding low-profit activities to the contracting companies[9]. Those low-profit working opportunities offered by mass manufacturing would be transferred to their subsidiaries located in the foreign countries, in terms of cost-benefit rule. Thus, we cannot anticipate maintaining the current welfare system by reserving the traditional industries[10].
However, we could plan to develop the new industries by creating a technology community. To build a new high-tech community could not only develop an area with low economic growth by using the local university’s innovation composed of groups of researchers and undergraduates and the new infrastructure and the low-tax instrument provided by the local government, but could also provide the incentives for companies to set up its branches or research centers in the community, coordinating with universities to recruit more talent students and researchers to be its members. As a result, a successful community can bring more tax for local government, more resources for local universities, more working opportunities for native workers and third country nationals be created to supply the situated companies’ needs. It would be a package of combing universities, companies, government, native workers and immigrant workers. In this paper, I would rather to focus on discussion of attracting high skilled immigrants, because this could be a starting point of forming a high technology community.
1.1.3 Forming a new technology industrial community by attracting third country nationals
In order to form a high technology community, the first step is to find the most successful case in the world. Undoubtedly, the most famous model is Silicon Valley in United States of America. Every year over thousands of Indian engineers entering into the territory of USA devote themselves to work in the companies in Silicon Valley[11]. Also, some of the local undergraduates immediately work there after graduating from the neighboring universities.
There is a union composed of universities, companies, and government. The most famous one of the neighboring universities is Stanford University, and a lot of big companies’ founders are its graduates. The original idea of forming an industries community is also presented by Stanford University’s Professor Frederic Terman. Combing the loose immigration policy of USA, Silicon Valley gathers the top skilled workers in the world, the talents in the neighboring universities, and the capital coming from the companies (some are coming from the energetic stock and debts market), so that it becomes the top technology industrial community in the world.
Confronting with such a strong competitor, to develop a parallel successful one in EU, except Ireland could still maintain a community in the level of manufacturing, the continental countries should try to make a community composed of R & D centers cooperating with universities, corporations, official researching institutions. Consequently, there is a constant process of lawmaking from Directive of third country student, Directive of third country researcher, to a proposal of third country high-qualified worker. Because, in the age of knowledge-oriented, the key factor of competition is to attract the top knowledge workers and to cultivate the top knowledge workers[12].
In the last decades, the whole Europe was almost absent from joining the information revolution, and the strongest evidence is a lack of a big high technology industrial community, compared with Silicon Valley in United States of America. To prevent from being absence from the next industrial revolution happening again, it is therefore necessary to attract and to cultivate more knowledge workers to form a new technology industrial community.
1.2 Research Approach
The approach of this paper is law and social sciences. We recognized that literal approach is the first step to understand the content of law. Whereas there is a room of words, we need to find a comparatively specific standard to explain law. Thus, the goals behind the rules become the vital standards, because those goals represent the will of legislative. Consequently, we emphasized the purposive approach while explaining law.
Subsequently, there is a question arising from how to understand the meanings of the legislative goals. Can we easily use the common sense to understand the goals? In my personal opinion, it is more reasonable to study those specific goals by using law and social sciences approach, since most of the notions of the goals are also profession nouns. In this paper, migration is also a hot issue in Sociology and Economics. If we do want to precisely use those professional notions to explain law, the only way is to combing several subjects of social sciences to study law.
In addition, immigration is also a determining factor of deciding the number of population in the future. Unlike the traditional way of reaching fact relies on reading the decision in the past, it is important to use demography to predict the possibility of population in the future, and thus to decide which migration policy and law is suitable. Although this approach is based on the predictions in terms of demographic surveys, it would be too late for the legislatives to response once the predictions become true. Thus, it is an approach to reach the fact towards future.
To sum up, in this paper, we rely on so many surveys of social sciences as the guards to explain the law. In other words, we need to understand the notions of policies behind those rules at first, and then we can use the purposive approach to explain law.
2. Main Discussions of Policy Issues
2.1 General background
Firstly, it is necessary to noticed that whilst decisions on admission numbers of economic immigrants entering into the EU for the purpose of employment belong to the competence of each Member States, it is no doubt that the admission of third country nationals in one Member State may truly affect the others and their labor markets[13].
We also admitted that an effective migration policy couldn’t be limited to instruments for the admission of immigrants. Other parallel supplementary legislatives are also necessary. Immigration represents a complicated phenomenon that must be coherently addressed across all its relevant dimensions[14]. However, in order to deepen my study, in this paper, I would rather focus on the specific conditions of entry and residence.
As mentioned below, immigration does not provide a complete solution to falling birth rate and an ageing society, but it is indeed one of the effective tools used to solve the labor shortage in the short-term. However, there are two conflicting goals on the level of EU policy and law. On the one hand, due to the low employment and high unemployment rates in many EU countries, priority must be given to facilitate more EU citizens and legal resident migrants devoting themselves into employment, for attaining the aim of fulfilling objectives of the New Lisbon Strategy for Growth and Jobs[15]. On the other hand, as part of Lisbon Strategy aimed at increasing the competitiveness of the EU economy, in the short to mid-term labor immigration can positively tackle the effects of the current demographic evolution, and will be crucial to satisfy the predicting labor market needs from now to future and thus sustain economic development and growth[16].
In general, before admitting a third country worker, Member States require proof that in the domestic labor market no one can fill the vacancy concerned. The “Community Preference” principle is defined, as “Member States will consider requests for admission to their territories for the purpose of employment only where vacancies in a Member State cannot be fulfilled by national and Community manpower or by non-Community manpower lawfully resident on a permanent basis in that Member State and already forming part of the Member State’s regular labor market[17].” After fully applying this principle, as a consequence, it will make a barrier for the enterprises in specific sectors when they have urgent needs of labors[18].
Although it is inevitable that lawmaker need to code with the both conflicting goals mentioned above, we should bear in mind that immigration also has an increasing impact on entrepreneurship[19]. Enterprises mainly profit from unprecedented innovation[20], regardless of technology development or new business method, emphasized by all vital textbooks as regard management. In addition, Peter Drucker pointed out the next vital element in the society is knowledge, instead of capital and land[21]. Thus, for competing with the other regions to attract the knowledge workers (i.e. top high skill workers), taking the directive of highly skilled labor coming from third country a priority, therefore shall be deemed as the self-evidence. Since raising the employ rate of native workers also depends upon the micro economic expression of a Member State, it is convincing to confer the high skilled labors a equal employing right as well as the native workers, excluding the application of the principle of “Community Preference[22].”
2.2 The advantage of regulation competition relating to attracting highly skilled workers among Member States
Is there any unnecessary and potentially harmful competition among Member States in the recruitment of certain categories of workers?
Firstly, each Member States has its targeted industries and its specific labor shortages in its sectors, so that it is suitable to leave each Member States to decide its individual standard in its domestic law, instead of raising the determining level to EU. Each Member State can present its annually receiving number of immigrants according to its social situation and labor needs.
Secondly, we are glad to see the rapid competition occurring among Member States to attract the highly skilled workers by offering a more attractive condition insuring a comprehensive package of social and economic rights as well as native workers. Actually, a uniformed regime restricting states’ competition only results in the lower protection of third country nationals. Furthermore, competing highly skilled workers in the same sectors can also prevent those workers from receiving the low qualified job or being exploited by their employers.
3. Previously Legal Issues Concerning Highly Qualified Workers
Article 63 (3) of the EC Treaty provides that the Council can adapt “measures on immigration policy within the following cases: (a) conditions of entry and residence, and standards on the procedures for the issue by Member States of long-term visa and residence permits”. The commission identified the development of a common policy dealing with the conditions for admission and residence of third-country nationals for economic purposes (i.e. labor immigrant) as one of the priorities for building the global approach to migration in its communication in November 2006[23]. Thus; it presented a proposal for a directive on the conditions of entry and residence of high skilled workers in order to establish a common special procedure for quickly selecting and admitting those qualified immigrants, coupled with offering a good condition to encourage them to choose Europe[24].
3.1 To what degree of harmonization should the EU aim at?
There is a question arising from the economic migration issue: Why not enact a comprehensive legal immigration policy, instead of partly focusing on attracting and selecting highly skilled labors as qualified immigrants[25]? Initially, in July 2001 the commission presented a proposal concerning the basic conditions and rules of admission of labor immigrants[26], while after yearly discussing, the European commission gave up this proposal, since it was unable to attend the political agreement among Member States’ representatives at that time. However, later the Commission presented a Green Paper on a EU approach to managing economic migration again. This paper aimed at offering a common consensus among Member States of admitting third-country nationals as labor immigrants[27]. It is considerable to note that in the consulting process a majority of Member States expressed their support for a policy offering a fast track procedure of attracting high skilled migrants, whereas competing with comparable economic regions for attracting the mostly high skilled workers[28].
With regard to the first proposal, a European scheme favoring the entry and residence of the highly skilled workers is based on the predominant positions and experiences of the Member States. Whereas the failure of the 2001 proposal for a directive on economic migration which attempted to regulate the entry and residence conditions for all third country nationals conducting employed and self-employed activities, an alternative horizontal regime covering all kinds of economic immigrants would be considered too far from the existing models in each Member State’s national legal systems. Too many variations among domestic legal systems would make it very difficult to find consensus inside the rooms of the council and among the Member States’ representatives[29]. Therefore, a new package merely addresses the conditions and the procedures of admission for few selected categories of economic immigrants. Furthermore, it attempts to establish a package of rights third country nationals in employment shall enjoy once he/she has admitted to the territory of a Member State[30].
However, someone argues that it is a mistake to base the renewed European labor immigration strategy on the current political and economic policies and laws of key Member States. Although this would facilitate political agreement in the Council, it would also bring a risk on a coherent, global and long-term common EU immigration policy. He also criticizes this economic-oriented approach and presents several reasons as follow[31].
Firstly, a policy purely concerning the state’s labor need may lead to situations where the immigrant is de-humanized and treated solely as an economic unit[32].
Secondly, after comparing several domestic legal systems, we can see the definition of highly skilled immigrants is unclear, too many diversities in nature and not purely dependent on the educational and professional qualifications owned by immigrant worker, but some determining factors includes the salary level of requirements imposing on immigrant workers provided by rules, so that immigrant worker is anticipated not to cause the financial burden on the domestic social welfare system. The Standard of high skill is therefore not dependent on the level of knowledge or professional capacity, but a mix of self-financial concern[33].
Whilst those reasons mentioned above are comparatively convincing, we still want to response to those obligations on the ground of practice.
Firstly, the continental countries are traditional emigration states. It is reasonable to understand why some governments are reluctant to recognize the changing positions of their states from emigration to immigration[34], especially concerning some pressure is coming from several domestic conservative parties supported by the past misleading image of problems caused by immigrants. Thus, a flexible regime of horizontal EU level could be easily adopted among Member States. If we recognized that it is necessary to attract highly skilled labors to satisfy domestic labor needs and to facilitate the economic development, a step-by-step approach could be deem as a pragmatic[35] solution to break the political block.
Secondly, a really independent person relies on his/her independently economic capacity. Once the host state has a labor shortage of specific sectors or wants to develop a new technology relating to some future industries, it is not only on behalf of host state to gain the third country nationals to devoted themselves into the domestic labor markets, but the third country nationals could also expect to get a stable job to prove as an indispensable part of the host society, and therefore they could be more easy to integrate into the local society. A de-humanized concern is merely based on the spirit of human integrity, while it ignores the common relations among people in the modern society is based on interdependence[36].
Thirdly, compared with those who have contributed their works and tax payments to their host states, it is fair to require the third country nationals can attend a high level of salary from jobs. Due to the fact that the labor shortage exists in several Member States and the aging working population is coming now and in the near future, in terms of pragmatism, it is urgent for the Commission to promote a directive of highly skill labor as a staring point, and consequently gaining more supports from Member States to promote the more comprehensive regime through a success of this initiative. Thus, we propose a more flexible regime as follow.
Since a horizontal framework covering conditions of admission for all third country nationals seeking entry into the EU labor markets cannot receive sufficient supports from the Member States, nevertheless it has several advantages. Moreover, considering different needs of Member States’ labor markets, it also needs to provide a flexible regime. Therefore, a targeted set of several complementary measures composed of a general framework directive and four specific instruments is aimed to develop a flexible tools to offer a fair, right-based approach to all labor immigrants on the one hand, and combining conditions for specific sectors’ needs among the Member States, on the other hand[37].
Nevertheless, someone still argues that the final discretion exercised by states on the entry and admission of economic immigrants and the rules applied before the latter can meet the criteria to become a long-term resident are too diverse. The diversity due to the definition of highly skilled labor renders a common European policy relying on national rules positioning the immigrant workers in a situation of instability, insecurity and vulnerability[38].
Although we cannot deny it is possible to place the immigrant workers in a situation of instability and vulnerability by using the standard of high skill to distinguish the third country nationals into two groups, it is still need to note that the need and shortage of each state’s labor market is the basically starting point to hire the third country nationals. Attracting third country nationals into the territory of EU without existing vacancies would cause more serious problems in social security system and also make them more difficult to build a genuine link[39] to the host state before becoming the permanent residents or the naturalized nationals.
Considering access of third-country nationals to the internal labor market is a highly complex issue, a successfully operating Community policy in this field can merely be put in place progressively, in order to facilitate a gradual and smooth move from domestic to Community rules. EU legislation on the admission of economic immigrants should therefore be conceived as the first step, and lay down some common definitions, criteria and procedures, leaving to the Member States to fulfill their domestic labor market’s specific needs[40]. This general arrangement of EU level can correspond with individual Member States’ need as an incentive to persuade them to voluntarily implement the Community rules without delaying strategy, in the light of economics[41]. Thus, we can seek an optimal legal degree between Community and Member States through a general rules supplemented by national laws, while marginal benefits of each member states’ specific needs equaling marginal legal costs imposed by EU Community rules[42].
3.2 General framework Directive
The main goal of this horizontal framework is to insure a common framework of rights to all third country nationals in legal employment already admitted in a Member State before entitling to the long-term residence status. It would not only be fair towards people contributed with their work and tax payments to our economies, but also provides to establish a level playing field within the EU. In this context, the key question could be the recognition of diplomas and other professional qualifications relating to work requirements, in order to avoid brain losses of immigrants employed below their qualifications, and consequently a loss of income corresponding with his/her competence parallel to EU citizen with same qualifications[43].
A simply application for combing a work permit and a residence permit held by third country workers could be proposed. It would save time and administrative costs by simplifying procedures for immigrants and employers, based on the conditions of not significantly affecting each Member States’ internal procedures[44].
3.3 The issues of highly skilled labors presented by Green Paper
3.3.1 Social context
The basic ground of this proposal is that the majority of Member States do need these workers. One convincing reason is those highly skilled workers can choose to immigrate to the region or state who offers them the most attractive working and residence conditions in the context of competition. The other is some of the Member States do lack highly skilled labors in their domestic sectors which cannot be satisfied within the Community’s manpower.
Moreover, in order to form a high technology industry community within a member’s territory or cross borders, we really wonder whether there is a precise standard to evaluate if one Member State’s highly skilled labor is sufficient, instead of attracting more highly skilled labors to enlarge the scale of the community.
3.3.2 Policy grounds
3.3.2.1 A needs approach
We support that an admission should be conditional on a specific job vacancy. However, if employer need to be required to publish a job vacancy for a minimum period without receiving any acceptable application within the EU labor market before recruiting a third country nationals, at least in some high technology sectors, it still imposes a huge employing cost on them.
3.3.2.2 A necessary renewed test
The other issue is whether or not this test should be repeated when a short-term contract has expired and the employer wishes to renew it[45]. On the one hand, it is necessary to protect the native workers by means of Community Preference Principle, excluding some specific sectors that have urgent labor needs. On the other hand, on behalf of corporations, they invest a lot of time and capital to recruit a third country nationals and to train them to be the qualified workers apart from their academic and professional background[46], for saving costs of training a new worker, it is more reasonable to allow the employers to decide whether to hire a third country national after expiring the first contract of term, and not required them to repeat the test again[47].
3.3.3 A single application procedure combining work and residence permits
A single domestic application procedure combining residence and work permits could simplify the current procedures. This would not interfere the internal practices of national administrations, nor with the conditions of admission[48]. In most circumstances of Member States, third country nationals need to possess a work permit before getting the residence permit. Thus, it is therefore reasonable to combine both applications into one single procedure and its details decided by each Member States without rising to the EU legal level.
3.3.4 Allowing to change employer or sectors with some limits
The permit of changing employer or sector during the firstly working period in EU depends upon the level of the highly skilled labors. If the one belong to the top level as a key employee for a employer or in a sector, it is impossible not to allow him/her to change the employer for successfully attracting them to choose EU. However, they can only be allowed to change to the relevant sectors that are not so far away from their original sectors. On the contrary, those highly skilled labors under the top level should not allow them to change in the first limited period, considering that they have already cause a higher hiring costs on their employers.
Nevertheless, there is a problem arising from how to distinguish the top level of highly skilled workers and the one under top level. Basically, it can be decided by their contracts, once companies deem some of their workers into their top level groups, we should allow the employers to have a competence to design their suitable employment strategy. In addition, once there is no contract ruling their relations, the domestic rules can provide them a specific standard as a default rule, according to their specific social context. It is still unnecessary to be decided by EU law.
3.3.5 Basic secure legal status
Third country workers must enjoy a basically secure legal status[49], no matter what they are willing to return to their home countries or increasingly become the permanent residents or the naturalized nationals. They should be ensured to have the same treatments as EU citizens with regard to certain basic economic and social rights before obtaining long-term resident status. They can be increasingly conferred more rights in terms of the length of stay[50].
4. Current Proposal as regard the conditions of entry and residence of third-country nationals for the purpose of highly qualified employment
4.1 Current situation and policy grounds[51]
This proposal aims at strengthening the ability of EU to attract and to retain third country workers with high skill in order to increase the contribution of legal immigration to enhancing the competitiveness of the EU economy set up by Lisbon Strategy. In particular, it aims at effectively and promptly responding to fluctuating demands for highly qualified immigrant labors, and to offset present and upcoming skill shortages by creating a level playing field at EU level to facilitate and harmonize the admission of this category of workers and by promoting their efficient distribution and re-distribution on the EU labor market.
In order to achieve these goals, the Commission proposes to create a common fast track and flexible procedure for the admission of highly skilled workers coming from third country, as well as attractive conditions for them and their families, including certain conveniences for those who wish to move to a second Member State for the purpose of highly qualified employment.
The EU itself seems not attractive to highly qualified labors in a context of global competition. The main cause is that at present highly qualified immigrants need to face 27 different domestic admission systems, with lacking the possibility of moving to another Member State for work. In addition, only ten Member States have specific schemes for admitting highly qualified workers and these schemes differ. Not only these legal barriers cause highly skilled immigrants to choose the other regions, but also on behalf of the whole EU these schemes segments the EU labor market. As a consequence, a more efficient EU immigrant labor market is unavailable.
4.2 Available legal remedies presented by the new Proposals[52]
The proposal is intended to address the labor shortages by fostering the admission and mobility of third country nationals for the purposes of highly qualified employment for stays of more than three months, in order to make the community more attractive to such workers coming from third country and to facilitate its economic growth. To reach these goals, it is necessary to facilitate the admission of highly qualified labors and their families by establishing a fast track admission procedure and by granting them the basic social and economic rights as well as host nationals have in a number of areas.
The Directive should provide a flexible demand-driven entry system, based on objective criteria combing a minimum salary threshold and the professional qualification. The definition of a common minimum denominator for the national wage threshold is necessary to ensure a minimum level of harmonization in the admission condition throughout the EU.
Deviation from the main scheme in terms of the salary threshold should be laid down for highly qualified applicants less than 30 ages that cannot satisfy the salary requirements of the main schemes due to their limited professional experience and their position on the labor market, or for those who have acquired their higher education qualifications within the European Union.
After getting an admission from a Member State, the third country national will receive a specific residence permit entitled EU Blue Card, which allow him/her to be access to the labor market and enjoy the residence and mobility rights.
The geographical mobility of third country highly qualified workers should be recognized as a primary mechanism for improving the efficiency of EU labor market. By raising the efficiency of the labor market through deregulation of mobility, regional imbalance can be offset and several specific labor shortages can be satisfied. While, considering the balance of protecting the native workers by applying the principle of Community preference, also avoiding the possible abuse of Blue Card, the mobility of a highly skilled workers should be limited in the first two years of legal residence in the first Member State.
4.3 Legal backgrounds[53]
4.3.1 Legal basis
This proposal includes conditions of entry and residence for third-country nationals and standards on procedures for issuing the necessary permits. It also lays down the conditions under which a third-country national is allowed to reside in a second Member State. Therefore, the properly legal basis is Article 63 (3) of and (4) of the EC Treaty.
4.3.2 Subsidiarity Principle
The subsidiarity principle applies insofar as the proposal does not fall under the exclusive competence of the community, since the objectives of this proposal cannot be fully achieved by a single Member State’s law. If Member States act alone, they are not individually attractive enough to face global competition for highly qualified workers coming from third country.
To explain more, the main attractiveness of EU is the possibility of accessing its 27 labor markets for those highly qualified workers to develop their careers while responding to EU companies’ specific needs at the same time. To reach those objectives, only Community rules can provide them a common procedure of selection and admission and a privileged condition of acquiring EU long-term residence.
However, the proposal still leave sufficient room for Member States to adapt the scheme to their specific labor market’s needs[54] and does not impinge on Member State’s power to determine the numbers of economic immigrants entering the EU for the purpose of work.
5. Analysis Of The Specific Rules[55]
In this paragraph, we want to focus on discussing Article 5 and Article 6, in order to explore the conditions of conferring Blue Card on the third-country highly qualified immigrants. While, the content of the Blue Card is left to the other relevant studies.
Article 1 provides that this proposal aims at determining the conditions of entry and residence for more than three months in the territory of the Member States of third-country nationals and of their family members for the purposes of highly qualified employment.
5.1 How to define “ High Qualified”
5.1.1 Education or professional experience: which standard is better
Article 2 (b) defines the “highly qualified employment” as “the exercise of genuine and effective work under the direction of someone else for which a person is paid and for which higher education qualification or at least three years of equivalent professional experience is required.” Subsequently, Article 2 (g) defines that “highly education qualification” stands for “ any degree, diploma or other certificate issued by a competent authority attesting the successful completion of a higher education program, namely a set of courses provided by an educational establishment recognized as a higher education institution by the State in which it is situated.” The basic threshold of educational requirement is a qualified bachelor degree for three years of study. Subsequently, Article 2 (h) defines “higher professional qualification” means qualification attested by evidence of higher qualifications or of at least three years of equivalent professional experience. Finally, Article 2 (i) defines “professional experience” means the actual and lawful pursuit of the profession concerned.
Firstly, we recognized that it is very difficult to find a good definition of “ high qualified.” The starting point is to use “highly educational qualification” to be the basic element of the definition provided by article 2 (g). And it requires the applicant had studied a set of courses provided by an educational institution recognized by the situated government at least three years to get an qualified academic degree or diploma. This is a merely fundamental requirement, parallel to the standard of getting a bachelor degree in EU educational system[56].
Since each sector has its own need, there are various kinds of standards to define which one could be the key man/woman or which one who owns the main merits corresponds with the specific industries’ needs. Thus, article 2 (h) use three years of equivalent professional experience as the alternative standard to supplement the rigid notion of higher education qualification. Someone may argue that this standard is too flexible and lacks the legal certainty. While, due to the fact that each sector does have its special labor need, thus we should offer a room for the entrepreneurs to recruit their favoring labors. Hence, it is unnecessary to design a rigid legal definition of “ high qualified employment” in the Directive. On the contrary, three years of professional experience can be a convincing evidence for entrepreneur to save the high training costs and to solve their urgent shortages. In addition, article 5 also requires that the applicant need to prove his/her qualification by fulfilling the conditions set out under national rule in the regulated profession and by presenting the documents attesting the relevant high skill in the unregulated profession.
5.1.2 Salary threshold issue
We had mentioned above that it is suitable to use the needs approach, in terms of pragmatic concern. That means a third-country national need to present a valid work contract or a binding job offer before applying an admission of entry and residence in a Member State, provided by Article 5. However, article 5 also requires that a salary of the work held by a third country national must be at least three times the minimum gross monthly wage set by national, and if there is no minimum wages defined by a member state’s law, the salary of the work must be three times income under which citizens of the Member State concerned are entitled to social assistance in that Member State, or to be in line with applicable collective agreements or practices in the relevant occupation branches.
Is the “Salary Threshold” as a relevant standard of “high qualified employment”? In common practice, a key person hired by an organization usually has a good salary than common level, which is easy to over the mandatory level required by Article 5. Also, in the context of the urgent needs from some specific sectors, in common circumstances, it is probably that the third country labors can get the higher salary from his jobs. However, theoretically the threshold of salary is indeed not relevant to the standard of high education and of high profession[57]. The only reasonable standard is that requiring the same or close salary in a work contract as well as the same or similar occupations in the same or relevant sector or field, since three times than the minimum gross monthly wages may be too high to block a lot of immigrant labors entering into the Member State’s market[58]. Whereas preventing from brain waste of immigrant workers, also considering the negative distortion of competition by deliberately reducing the reasonable payment to gain the job[59], it is necessary to require the salary threshold parallel to the similar occupation in the relevant sector.
5.2 Exception for young highly qualified labors
There is an exception for young highly qualified labors provided by Article 6. As an applicant, a third country national under 30 years old, with holding a higher educational qualification, could be allowed to get a job which salary is below the mandatory threshold.
Article 6 (a) provides Member States shall consider to lowering the salary threshold to the two-thirds of the national salary threshold defined by Article 5 (2). Article 6 (b) also provides an alternative allowing the young applicants to present a degree of higher education suck as bachelor or master in the territory of the Community to fulfill the requirement of salary threshold. In addition, due to the limit of age, Article 6 (c) does not require the young applicants to present the proof of professional experiences for a period, unless it is necessary to fulfill the conditions set out under national legislation for the exercise by EU citizens of the regulated profession specified in the work contract or binding job offer of work.
Firstly, as a young immigrant worker, it is more difficult for them to fulfill the conditions set up by Article 5. Moreover, young highly skilled workers created most of the well-known high technology industries in Nowadays. We can found so many famous cases from the last century such as Apple Inc., Intel Corporation, Hewlett-Packard, and Google Inc. Indeed, those high technology industries led to the information revolution in the last three decades and facilitated the US economy in 1990’s. Undoubtedly, USA has the strongest information industries and is deemed as the most innovative country in the world.
Secondly, considering those degrees have been insured by a higher education institution situated in the Community as a strong evidence of holding a highly educational qualification. Also, after exploring the history of the newly high technology corporations, a proportion of them are even created by undergraduates or postgraduates. After working for a period in the host enterprises, some of them choose to form a new corporation, and subsequently become so successful due to an innovative idea with industrial applicability. Hence, in order to facilitate the EU economy by attracting more innovative workers, the final standard of getting an academic degree should be deemed as a vital link between enterprises and higher educational institutions.
6. Conclusion
In the light of corporation’s history, any big company starts from a successfully innovative product or a business method. Since we live in the global world with an inevitably rapid competition, it is a trade-off between living in an energetic and innovative society with more but unstable jobs and living in a stable society with more domestic protection but less jobs. However, globalization has increasingly changed the picture of commercial activities. Ulrich Beck deems one of the consequences of globalization as a more efficient capitalism with less jobs, since more and more working opportunities have transferred to the foreign subsidiaries situated in developing countries with low employing costs, by means of information and communication technology instruments. What response should the EU adopt in the new century?
We recognize that it is inevitable for the EU citizens to suffer losses of jobs in some attracting vacancies after passing this proposal, even after applying the principle of Community Preference. Since the whole EU is not only absence in the information revolution at the end of the last century, but also traditionally does not emphasize the importance of business study, compared with USA. Most of all famous MBA Schools are located in Untied States. As mentioned above, innovation includes a technical innovation of product and an inventive business method[60]. If we deem the innovative as the key factor of the EU economic growth, the first step should open a door for third country immigrants.
However, as mentioned above, it is a trade-off between an innovative society and a conservative society. Once we open a door for immigrants, the native workers will inevitably face the more rapid competition. It is also an obstacle for immigrants to smoothly integrate into the local society. Therefore, I would rather to support a needs approach of migration policy, because at least those immigrants will not cause a big burden on the social welfare system but help to maintain the welfare system by paying tax and strengthening companies’ human capital.
Finally, it could be very hard to form a high technology community in EU. Only the language barrier is a high threshold[61]. Also, fully applying the principle of Community Preference could become the negative factor of attracting third country immigrants, due to the severe limit imposed on the employers. Is the EU ready to become an open area embracing the competition? The only thing we can insure is that more high-qualified workers will seek the most favoring area to reside and work, and this phenomenon is a key point deciding which area would become the winner in the next technology revolution. Unfortunately, in the global age, the dominating rule is the winners take all.
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** Pretending student of European Migration and Citizenship, Master Student of European Law School at UM.
[3] Communication from the Commission, Policy Plan on Legal migration, COM (2005) 669 final, Brussels, 21.12.2005, at p. 3.
[4] Hildegard Schneider, Towards a European Migration Policy: from Maastricht to Amsterdam, from Tampere to The Hague, Migration, Integration and Citizenship-A Challenge for Europe’s Future, Volume II, Edited by Hildegard Schneider, Published 2005 by Forum Maastricht, at pp. 12-13.
[5] Communication from the Commission, Policy Plan on Legal migration, COM (2005) 669 final, Brussels, 21.12.2005, at p. 4.
[6] European Commission, Green Paper on a EU approach to managing economic migration, COM (2004) 811 final, Brussels, 1. 11. 2005, at p. 1.
[8] Rainer Munz, Thomas Straubhaar, Florin Vadean, and Nadia Vadean, The Costs and Benefits of European Immigration, Executive Summary, Hamburg Institute of international Economics 2006, at p.7.
[9] Peter Drucker, Managing In The Next Society: Beyond the Information Revolution, 2002, the author emphasized that the first important obstacle for the modern nations is to code with the ageing society.
[10] Ulrich Beck, World Risk Society, (Cambridge: Polity Press 1999), the author claims that it is a new age of capitalism with no or less jobs, and he also points out that the fundamentals of welfare state has no longer existed.
[11] Louk de la Rive Box, To and Fro, International Cooperation in Research and Research on International Cooperation, Inaugural lecture at the Maastricht University, October 12th, 2001.
[12] Peter Drucker, the most famous master of management in the 20th century, firstly presented the notion of knowledge worker. He emphasized that the knowledge workers are the key factor of any enterprise’s success, because of innovation or dead.
[13] Communication from the Commission, Policy Plan on Legal migration, COM (2005) 669 final, Brussels, 21.12.2005, at p. 4.
[14] Communication from the Commission, Policy Plan on Legal migration, COM (2005) 669 final, Brussels, 21.12.2005, at p. 4.
[16] Communication from the Commission, Policy Plan on Legal migration, COM (2005) 669 final, Brussels, 21.12.2005, at p. 5.
[18] In this paper, I am used to use economic notions to evaluate whether the goals of the rules has attained or not, and we called this approach as an efficient approach, see David D. Friedman, Law’s order: what economics has to do with law and why it matters, Princeton University Press 2000, Chapter 1, the author compared the differences between justice and efficiency and claimed that efficiency is a comparatively useful notion to evaluate law, since justice is a too abstract standard.
[19] European Commission, Green Paper on an EU approach to managing economic migration, COM (2004) 811 final, Brussels, 1. 11. 2005, at p. 4.
[20] It is the main scheme of Peter Drucker’s theory. He emphasized the main goal of the enterprise is to innovate.
[21] The first main type of economics is farming based on the control of land, the second main type of economic is industry composed of capital collection, while the third main type of economics is deemed as knowledge proved by the observation of the birth of the high technology enterprises in the last fifty years. Thus, the third society is characterized as knowledge society, distinguished from farming society and industrial society, see Peter Drucker, Managing In The Next Society: Beyond the Information Revolution, 2002, the author emphasized that the first important obstacle for the modern nations is to code with the ageing society.
[22] European Commission, Green Paper on an EU approach to managing economic migration, COM (2004) 811 final, Brussels, 1. 11. 2005, at p. 7.
[23] European Commission, Communication, The Global Approach to Migration one year on: Towards a Comprehensive Migration Policy, COM (2006) 735 final, Brussels, 30.11.2006.
[25] Sergio Carrera, Building a Common Policy on Labor Immigration-Towards a Comprehensive and Global Approach in EU? CEPS Working Document No. 256/February 2007, at p. 1.
[26] European Commission, Proposal for a Council Directive on the conditions of entry and residence for purpose of paid employment and self-employment activities, COM (2001) 0836 final, Brussels, 11.07. 2001.
[27] European Commission, Green Paper on an EU approach to managing economic migration, COM (2004) 811 final, Brussels, 1. 11. 2005.
[28] Sergio Carrera, Building a Common Policy on Labor Immigration-Towards a Comprehensive and Global Approach in EU? CEPS Working Document No. 256/February 2007, at p. 4.
[29] Sergio Carrera, Building a Common Policy on Labor Immigration-Towards a Comprehensive and Global Approach in EU? CEPS Working Document No. 256/February 2007, at pp. 1-2.
[30] Communication from the Commission, Policy Plan on Legal migration, COM (2005) 669 final, Brussels, 21.12.2005, at p. 5.
[31] Sergio Carrera, Building a Common Policy on Labor Immigration-Towards a Comprehensive and Global Approach in EU? CEPS Working Document No. 256/February 2007, at p. 2.
[32] Also see D. A. Coleman. Does Europe need Immigrants? Population and Workforce Projections, International Migration review 1992; Hildegard Schneider, Towards a European Migration Policy: from Maastricht to Amsterdam, from Tampere to The Hague, Migration, Integration and Citizenship-A Challenge for Europe’s Future, Volume II, Edited by Hildegard Schneider, Published 2005 by Forum Maastricht, at p. 21.
[33] Sergio Carrera, Building a Common Policy on Labor Immigration-Towards a Comprehensive and Global Approach in EU? CEPS Working Document No. 256/February 2007, at p. 2.
[34] Hildegard Schneider, Towards a European Migration Policy: from Maastricht to Amsterdam, from Tampere to The Hague, Migration, Integration and Citizenship-A Challenge for Europe’s Future, Volume II, Edited by Hildegard Schneider, Published 2005 by Forum Maastricht, at pp. 12-13.
[35] As regard pragmatism as a traditional legal theory in USA, see Ian McLeod, Legal Theory, Chapter 7, Basing stoke 2007.
[36] If we deem the whole society as an operating organization including conflicting interest groups, anyone join the society thorough the deals, while someone are rejected out of the market. Thus, it is a conservative theory of decribing the structure of the society. We do recognize there are existing conflicts between the higher lays and the lower lays in society presented by Carl Max, however, the basis of law is rooted in the assumption of a stable society with acceptable conflicts, as regard the discussion the main social theories, see Anthony Giddens, Sociology, Cambridge etc., Polity press 2006.
[37] Communication from the Commission, Policy Plan on Legal migration, COM (2005) 669 final, Brussels, 21.12.2005, at p. 5.
[38] Sergio Carrera, Building a Common Policy on Labor Immigration-Towards a Comprehensive and Global Approach in EU? CEPS Working Document No. 256/February 2007, at p. 7.
[39] A genuine link is the basis of acquiring or reserving a nationality, see Gerard-René de Groot, Conditions for Acquisition of Nationality by Operation of Law or by Lodging a Declaration of Option, Migration, Integration and Citizenship-A Challenge for Europe’s Future, Volume I, Edited by Hildegard Schneider, Published 2005 by Forum Maastricht, at pp. 187-218.
[40] European Commission, Green Paper on an EU approach to managing economic migration, COM (2004) 811 final, Brussels, 1. 11. 2005, at p. 5.
[41] About the Federalism and regulation competition relating to discussion of EU harmonization of law, a short introduction of theory can see Michael G. Faure, How Law and Economics may contribute to the harmonization of tort law in Europe, in Zimmermann ed., Grundstrukturen des Europaischen Deliktsrechts, Nomos, at. Pp. 5-11.
[42] See Cooter & Ulien, Law and Economics, Forth Edition, Chapter 2, Market Equilibrum, 2004 Person Addision Wesley, at pp. 33-35.
[43] Communication from the Commission, Policy Plan on Legal migration, COM (2005) 669 final, Brussels, 21.12.2005, at p. 6.
[44] Communication from the Commission, Policy Plan on Legal migration, COM (2005) 669 final, Brussels, 21.12.2005, at p. 6.
[45] European Commission, Green Paper on an EU approach to managing economic migration, COM (2004) 811 final, Brussels, 1. 11. 2005, at p. 8.
[46] Several necessary costs are as a cost of language learning, a cost of assisting them to integrate into the local society, a cost of assisting them to find a house, a cost of organizing them into an association aimed at offering celebration of their specific home countries’ festivals, an so on.
[47] As regard the analysis of cost and benefit, see Donald Wittman, Economic Foundations of Law and Organization, Cambridge Press 2006, at pp. 21-29.
[48] European Commission, Green Paper on an EU approach to managing economic migration, COM (2004) 811 final, Brussels, 1. 11. 2005, at p. 9.
[49] Community Directives on issues such as occupational health and safety or working conditions are in principle applicable to all workers, irrespective of nationality.
[50] European Commission, Green Paper on an EU approach to managing economic migration, COM (2004) 811 final, Brussels, 1. 11. 2005, at p. 10.
[51] Proposal for a Council Directive on the conditions of entry and residence of third-country nationals for the purposes of highly qualified employment, COM (2007) 637 final, Brussels, 23.10.2007.
[52] Proposal for a Council Directive on the conditions of entry and residence of third-country nationals for the purposes of highly qualified employment, COM (2007) 637 final, Brussels, 23.10.2007
[53] Proposal for a Council Directive on the conditions of entry and residence of third-country nationals for the purposes of highly qualified employment, COM (2007) 637 final, Brussels, 23.10.2007.
[54] It is the main advantage of adopting a Directive, instead of a supranational law. With regard to the discussion of Federalism, see Charles M. Tiebout, A Pure Theory of Local Government Expenditures, 64 Journal of Political Economy 416, 1956.
[55] Proposal for a Council Directive on the conditions of entry and residence of third-country nationals for the purposes of highly qualified employment, COM (2007) 637 final, Brussels, 23.10.2007, at pp. 13-30.
[56] In nowadays, a threshold of requiring a bachelor degree is too low for some high technology sectors. On the contrary, in the fashion and design sectors or media sectors, a professional experience is more important than academic degree.
[57] Sergio Carrera, Building a Common Policy on Labor Immigration-Towards a Comprehensive and Global Approach in EU? CEPS Working Document No. 256/February 2007, at p. 2.
[58] It is a legal barrier imposing on the immigrant labor, while this scheme also distort the normal operation of the labor market. We should set up a minimum standard to protect the native workers from negative competition, while a rigid restriction of employment policy also decrease the opportunities for the EU enterprises to innovate their old business by adding the third country manpower. When companies profit from a successful innovation, the next step is to enlarge their scale of business to gain more share of relevant product or service market, consequently they will hire more native workers. It is a result of win-win. About the disadvantages of the legal monopolistic market, see Cooter & Ulien, Law and Economics, Forth Edition, Chapter 2, 2004 Person Addision Wesley, at pp. 35-37.
[59] Rainer Munz, Thomas Straubhaar, Florin Vadean, and Nadia Vadean, The Costs and Benefits of European Immigration, Executive Summary, Hamburg Institute of international Economics 2006, at p.7.
[60] Even USA includes the inventive business method into the protection of patent, see Hector MacQueen, Charlotte Waelde & Graeme Laurie, Contemporary Intellectual Property-Law and Policy, Oxford Press 2007, at pp. 418-420.
[61] English could be the most valuable treasure left for the Americans and the British people, since most of the highly skilled immigrants can speak English, so that it is more easier for those English countries to attract immigrants, especially concerning the advantage of avoiding the language problem, while considering naturalization.
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