Introduction

According to demographic forecasts, it is predicted that the working-age population in the European Union will have shrunk by 48 million by 2050. At the same time, the number of job vacancies within businesses in the EU is increasing, particularly for highly qualified personnel.[1] The Netherlands, and the EU in general, are not very attractive destinations for highly qualified migrants from non-EU countries. One of the main reasons for this is that, within the EU, migrants are confronted by 27 different immigration systems. It is not easy for a migrant who has been admitted to a particular EU Member State to go to another Member State in order to work or live there. As a result thereof, there are limited possibilities for migrants within the EU. Consequently, the EU's competitive position as a knowledge-based economy is poor compared to countries such the United States and Canada.

To improve the EU's competitive position, the Council of the European Union (with the exception of the United Kingdom, Ireland and Denmark) adopted the "EU Blue Card" directive[2] on 25 May 2009. The Blue Card is intended to function in the same way as the US Green Card, making the EU more attractive for highly qualified employees from non-EU countries and ensuring that such employees remain in the EU. The Member States must implement the directive in their national laws within a period of two years.

On the occasion of the adoption of the Blue Card Directive, we would like to briefly remind you of the main features of the "highly skilled migrant" procedure (kennismigrantenregeling) currently applicable in the Netherlands, before discussing the requirements for an employee from a non-EU country to be able to obtain a Blue Card in future.

Summary of admission criteria

The Dutch "highly skilled migrant" procedure

In order for an employee from a non-EU country to be admitted to the Netherlands as a "highly skilled migrant" (kennismigrant), the prospective employer must sign a declaration in which it undertakes a number of responsibilities in respect of the employee, including acting as the employee's financial guarantor so that no costs relating to the employee's stay are borne by the Dutch state. In addition it must be shown, by means of an employment contract, that the individual in question will be working as a salaried employee. Lastly, the gross annual salary to be received by the employee must be at least EUR 49,087 (EUR 35,997 for those under the age of 30). A key feature of this procedure is that the employer is not required to show that it was unable to find someone from the Netherlands to fill the relevant position.

EU Blue Card

In order to receive a Blue Card, the relevant non-EU national must (1) have a valid employment agreement, or a binding job offer, for highly qualified employment of at least one year in an EU Member State; (2) have the relevant professional qualifications in the case of an unregulated profession, or fulfil the applicable conditions in the case of a regulated profession; and (3) be entitled to a gross salary that is at least one and a half times the average gross annual salary in the Member State in question.

The Blue Card will be a combined work and residence permit. Family members of a Blue Card holder will receive (dependent) residence permits enabling them to reside with the Blue Card holder. In the area of social security, Blue Card holders will be treated in the same way as nationals of the relevant Member State. Pursuant to the directive, the Blue Card's standard period of validity is to be set by the Member States.

A year and a half after obtaining a Blue Card, the relevant individual will be able to move with his/her family to another Member State in order to work there. Within a month of arrival there, he/she must apply for a new Blue Card. In this regard, he/she must satisfy the requirements of the relevant Member State. The latter must issue a decision on the application within 90 days of the individual's arrival in the country.

EU Blue Card v. Dutch "highly skilled migrant" procedure

One of the Blue Card's advantages is that, after a year and a half, employees will be free to move within the EU in order to work in another Member State without having to first go through the various formalities normally applicable. For multinationals with branches in different EU countries, it will therefore become more attractive to recruit non-EU nationals to come and work in the Netherlands. This is because after a year and a half, such employees will, by virtue of their Blue Card, no longer be restricted to the Netherlands but can be transferred to another branch of the multinational within the EU by means of a simple procedure. By the same token, it will be attractive for employees to come to the Netherlands or another EU country on the basis of a Blue Card, because this will facilitate their mobility within the EU.

This article provided a summary of the directive's provisions, which must now be implemented by Member States in their national laws. Under the directive, Member States are free to retain their existing systems of residence permits or to introduce new rules in this regard.