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The Blue Card is the first work permit in a European legal format. By no means (as the term ‘Blue Card’ may suggest) does it provide free movement to highly skilled third-country nationals to work in the European Union. 

Firstly, the UK and Ireland have opted out. No Blue Card movement at all in those countries.

Then, the key requirements, (which are quite strict): applicants need to have an employment contract for at least one year, higher professional qualifications and a threshold salary of 1.5 of the gross national average in the Member State of employment. These requirements demonstrate that in the global race for talent, the Directive’s aim was only limited to harmonizing and supporting the migration of young highly skilled professionals. Much of the debate in the European Parliament about the Directive was devoted to controlling brain drain.

In the Netherlands, the uniform European Blue Card has been available since June 20, 2011. It was in time to meet the European Commission’s deadline for implementing the EU Blue Card Directive from 2009. Five other Member States had to be summoned by the Commission, but at least The Dutch were on time, although perhaps somewhat less enthusiastically. In Brussels, the Dutch fought in vain for better mobility but had, at least, saved their own national programme for highly skilled migrants, which has run very successfully since 2005.

What is the Blue Card like in The Netherlands?

Politically, it’s much debated by practitioners and in academic circles, but as an instrument of legal migration to The Netherlands the policy is rarely used. That is, as yet, but we may see that change in 2014 and remarkably, this may come from the 2013 law that introduced a mandatory and enforceable sponsorship for employers of highly-skilled migrants.

In the application statistics of the Dutch Immigration Department IND since 2011 (the year of implementation of the Directive), you will not find Blue Card application numbers. The application numbers in the IND annual reports for 2009 - 2012 show that an influx of foreign employees through the Netherlands national policy for highly skilled migrants varied from 5 to 6.5 thousand applications were granted each year. In the Annual Report of 2011, there were a couple sentences introducing the Blue Card as an EU-designed work permit for highly-skilled migrants along with the Dutch programme for highly-skilled migrants. The paragraph closes with: “So far, a small number of applicants have used this new policy.”

I daresay this is still the situation at the end of 2013; the Blue Card application in the Netherlands is as yet, statistically irrelevant. This corroborates what we have noticed in the daily practice over the years since June 2009. Initially, there were many requests for information from corporate clients and their employees, but those quickly waned in the years thereafter. From what I know in my firm and from my colleagues in the Dutch jurisdiction, I would say the total number of Blue Cards issued in The Netherlands as a first or as follow-up admission, (which I have not seen at all thus far) is still no more than 50. Why is that? Generally speaking, the Dutch programme for the highly skilled is easier in its qualifying conditions and required documentation.

Although the Dutch have only implemented the general salary threshold and the educational qualifications from the Directive, there are no other restrictive conditions, such as a quota and a full labour market assessment for BC holders from other Member States applying for a second admission.

By comparison, the key requirements for a Blue Card are quite strict: applicants need to have an employment contract for at least one year; an annual gross salary of at least € 4.743 per month in 2014 and they must submit valid higher educational qualifications and professional certificates.

I believe the main reasons to not opt for the Blue Card in The Netherlands are:

  • The national programme applies a lower monthly gross salary threshold differentiated by age: € 4.048 for applicants of 30 and over, € 2.968 for those below 30 and € 2.127 for foreign students graduated in The Netherlands applying within their first year after graduating
  • The Dutch salary thresholds are the exclusive qualifying requirement; valid higher educational qualifications and professional certificates are not required; a highly-skilled migrant permit is granted for contracts starting at 3 months and can also be applied to accommodate intra-company transfers. Work permits at the highest salary threshold can even be granted for a contract of less than 3 months

I believe the features of the Dutch highly-skilled migrants programme (HSM), have marginalized the application of the Blue Card policy in the Netherlands. In short, the national policy is cheaper, more flexible and faster by lack of having to submit valid documents.

Why then would an employer in The Netherlands still opt to sponsor a Blue Card application? Because there are some good points in favor of the Blue Card, that not many people know. For one, it is good to realize that the Dutch HSM salary thresholds are assessed both by contract and by market value.

Since 2007, by jurisprudence and since 2011 by regulation, a Dutch HSM salary would not be accepted if deemed to not meet the industry salary standard for the concerned job; we call this the market level salary requirement. This requirement can result in adjudicating issues involving the labour market authority acting as an advisory agent to the Immigration Department by assessing the required market level salary threshold. This market level requirement is absent in the Dutch regulation for the Blue Card applications. This means that principally a Blue Card applicant that meets the formal requirements of the Directive, regarding salary and education, is less vulnerable in the adjudicating process by the Dutch Immigration Department, both in a first admission procedure but also when changing the Netherlands residence permit title to a Blue Card.

More recent advantages for employers come from the new Modern Migration Policy Act which has been in force since June 1 of this year. The new Act introduces a totally renewed application process for highly-skilled migrants. One of the new features is that a residence permit can, not only be applied for by the foreign employee, but also by his or her sponsor.

Sponsorship is a brand new concept in Dutch immigration law. Sponsorship can either be applied for or awarded. Employers apply for a Netherlands residence permit with work authorization as a sponsor. If they wish to hire a highly-skilled migrant, they can apply for an entry visa plus a residence permit, if they first register with the Immigration Department as a so-called recognized sponsor. By registering, an employer obtains legal sponsorship status which is based on a relationship of trust between the employer and the Department.

Only a recognized sponsor can apply for a national permit for a highly-skilled migrant. Registering is a regulated application procedure requiring submission of documentation that demonstrates the company is solvent and able to pay HSM salaries, is in good standing with the Dutch Tax Service and has a clean record as an employer of foreign nationals. For registering, the company must pay a governmental filing fee of € 5.000.

What are the benefits for the company?

A recognized sponsor receives access to digital fast-track visa processing without documentation requirements. But keep in mind the other side of this coin. As a recognized sponsor an employer must undertake to live up to his sponsorship obligations; to always be compliant with the timely payment of the salary at the required salary threshold level; to be a bona fide employer, as well as to stand as a guarantor for the cost of deportation if the employee is found in-country within one year from termination of employment; to timely inform the Department of any relevant changes in the employment relationship; to maintain and keep an up to date personnel record on each highly-skilled migrant.

All duties are enforced by the Department and sanctioned by regulated administrative penalties; from an official warning to fines of at least € 3.000 per infraction and an eventual exclusion from the public register of recognized sponsors. These duties and obligations may be self-evident to a large extent and can be easily incorporated in an otherwise already well organized HR management model. On the other hand, they do not lessen the administrative HR load, but rather increase it and brand it as a compliancy commitment.

In view of this, the good news for employers who employ or are looking to employ a highly-skilled migrant in the higher segments of the market is that they can avoid the IND circus of sponsorship registering and sanctioned administrative sponsorship obligations by playing the Blue Card alternative.

It is, of course, still too early to say, but with the introduction of a mandatory recognized sponsorship for employers of highly-skilled migrants, we may see an increase in Blue Card applications in 2014.

What can I say terms of comparing the pros and cons of a highly-skilled migrant admitted on a Dutch permit with one who has obtained a Blue Card?

Well, an unemployed highly-skilled migrant is better off as a Blue Card holder. The national permit holder is only entitled to a qualifying job search for 3 months if he loses his job, whereas the a Blue Card holder would be allowed to that job search regardless of what caused his unemployment.

When it comes to intra-EU mobility, the BC holder is indeed, better off. After the first 18 months, a Blue Card holder and his family can migrate on to a second Member State to take Blue Card employment. However a second or third receiving Member State may apply a quota or refuse the BC permit based on national or EU work force priority. Still, this Blue Card holder would have a better prospects than a Dutch permit holder would have when moving on to another Member State, since he would have to wait for 5 years to become eligible for an EU permanent residence card that offered conditional access to the labour market of the other Member States. As for an EU permanent residence permit, the 5 year term to become eligible is mitigated for BC holders in that absence abroad for up to 24 months would not disqualify them. For national permit holders the permitted term of absence is only 12 months.

Family reunion is allowed to BC holders and offers access to the national labour market. According to the Directive, even for a new admission to a second or third Member State, (a good thing) will only come about if and when their principal has been admitted under the Member State’s Blue Card programme. For family reunion, national permit holders in the Netherlands who move to a second Member State can basically rely on Directive 2003/86 as implemented in the national policy of the receiving Member State.

The Blue Card implementation term expired for the Member States on 20 June 2011. So there may be Blue Card holders and their families who have migrated to other Member States since January 2013. The Netherlands will be compliant, but as yet there are no reports.

France, Germany and other EU Member States have successfully executed a Blue Card programme, clearly in the absence of a competitive national alternative. The Netherlands has a distinct disdain for the BC Directive. However, a side effect of the Modern Migration Policy Act may be that companies in The Netherlands and elsewhere in Europe will better recognize the advantages of the Blue Card programme in terms of less compliancy constraints and better mobility for their employed top talent.

Ted Badoux

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