Proposition 53K2077

Projet de loi modifiant la loi du 15 décembre 1980 sur l'accès au territoire, le séjour, l'établissement et l'éloignement des étrangers.

General information ¶

Submitted by

PS | SP the Di Rupo government

Submission date

Feb. 21, 2012

Official page

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Status

Adopted

Requirement

Simple

Subjects

EC Directive foreign national diploma family migration migrant worker political asylum residence permit work permit

Voting ¶

Voted to adopt

Groen CD&V Vooruit Ecolo LE PS | SP ∉ Open Vld N-VA LDD MR

Voted to reject

VB

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Discussion ¶

March 29, 2012 | Plenary session (Chamber of representatives)

Full source

The draft law transposes a European Directive of 25 May 2009 into Belgian law. It is a directive concerning the conditions of entry and residence of third-country nationals for the purpose of a highly qualified job in our country or in a country of the European Union.

The introduction of a European blue card following the example of the green card in the U.S. aims to simplify the arrival of highly qualified workers to the EU Member States and their stay on the EU territory.

That blue card will be issued by all Member States to all highly qualified workers who meet the conditions of the Directive, and gives workers a wide range of rights, including in the field of mobility.

The card corresponds to a uniform European model and is valid as a residence permit and work permit. This is a primeur, which fits within the framework of the single permit that Europe has established.

The card is valid for 13 months and can be renewed once for the same period. During this period, a certain control of the employee’s activities is possible. For example, if the employee wants to change an employer, the latter must submit a new application for employment to the competent Region.

After a period of 2 years, the highly qualified employee receives a blue card that will be valid for 3 years. After 5 years, the holder of a blue card can claim the status of long-term resident and acquire a permanent residence. The bill contains a number of deviating rules regarding highly qualified workers in order to maintain the favourable provisions of both statutes.

A European Blue Card holder who acquires the status of long-term resident after 5 years can return to his country of origin for 2 years. The reason for this is to limit the effects of braindrain and brainwashing in the country of origin.

The Countries will have to refrain from actively recruiting workers from developing countries with labor shortages. We need to create an ethical recruitment framework within which policies can be carried out in order to avoid harm in key sectors such as healthcare and education in third countries, often developing countries.

The blue card may also be withdrawn or ceased to be renewed if the conditions of the status of the highly qualified worker are no longer met. This may be the case if he is long-term unemployed, in case of fraud, if he is a threat to public order or if his means of subsistence are insufficient for the maintenance of his family members.

If the statute is revoked or refused, the employer will also be informed first, so that he does not run the risk of illegally employing his employee.

The directive, which combines residence and work permit for the first time, is a first step in an evolution that is likely to expand in the future. Since 2004, Europe has been working on developing a guided migration policy that takes into account the current and future needs of national labour markets. Such policies are seen as a key factor in strengthening the knowledge economy and economic development in Europe, in particular competitiveness and economic growth.

My colleagues, I will decide. The present draft law is a first step on a path that we will have to follow in the coming years. It is important to keep an eye on active migration and not just passive migration, as in our country in the past too often has been the case. The draft law therefore aims to promote active migration, which I think is welcome. My party has always been in favor of a legal channel for migration and economic migration, in order to meet the needs of the labour market and to combat illegal labour.

The provisions relating to the work permit fall within the competence of the Regions, which, in all fairness, does not necessarily simplify the affairs. However, it is the Belgian institutional legal order, which must be taken absolutely into account. Here a task is laid for the regions to organize consultation between the three regions of our country, in order to proactively avoid and address possible and inevitable coordination problems.

Colleagues, the entire bill was adopted with a few technical improvements with thirteen votes against one.

Mrs. Speaker, Mrs. Secretary of State, colleagues, we will support the draft, especially since it is the transposition of the European Directive.

The SP has two principled problems. First, through the European directive and thus also the bill, we actually promote the brainstrain from the third world. This is more encouraged anyway. Nevertheless, a real solution to our asylum and migration problems lies in the development of the developing countries themselves. So we have all the interest in that their inhabitants on the ground develop their country, and that we do not get them here.

You will not blame me that I quote here very briefly Kumi Naidoo, African and international director of Greenpeace. During the North-South Future Congress about two years ago here in Brussels, he said in his speech: “The logic that the rich countries have helped Africa is wrong.” “In fact, they, the Africans, are investing socially in the richest countries. Illustrative is the example of Manchester where there are more doctors working from Malawi than in the whole of Malawi itself.”

Colleagues, this is revenge, and with this Directive we encourage these practices back. Since this is a transposition of a European directive, we will still approve this.

A second principled problem we have with this conversion is that we are now again creating discrimination against non-EU citizens. There is also an additional discrimination. But again, since this is a transposition of a European directive, we will support this bill.

This bill aims to partially transpose the Council of Europe Directive of 25 May 2009 on the conditions of entry and residence of third-country nationals with a view to a highly qualified job. The European Blue Card is issued to third-country nationals who apply for access to the territory of a Member State for the purpose of a highly qualified job.

Our general assessment, Mrs. Secretary of State, I have already given you in the committee. For all clarity, I would like to say the following. Decades ago, the Flemish Belang stated that labour migration can only add value to our economy when it comes to well-integrated, highly educated immigrants. We immediately added that attracting new host workers, even if they are highly qualified, would inevitably lead to an increase in family migration, the follow-up migration to say. The risk is that these follow-up migrants will mostly end up in a situation of net recipients of our social security.

The possibility is therefore far from conceivable that the total displacement associated with labour migration will be mostly unskilled in nature and therefore will constitute a tax on our already tested public finances.

As a political group, we have not won for the European blue card system. Our principle is that Member States should be left free in this regard. They must make those choices that best correspond to the needs of their labour market and to the will and preference of their population. The Treaty establishing the European Community provides that the Council shall adopt measures on immigration policy. They cover, inter alia, the conditions of entry and residence and the standards of the procedures for issuing long-term visas and residence permits by the Member States. Unlike family reunification, it is not so much called for measures to be taken with regard to the admission of highly qualified migrant workers. That is our general principle. I have already clarified them for you at the committee meeting.

The directive exists and therefore needs to be transposed into Belgian national legislation. Article 23 of the Directive requires Member States to bring into force, by 19 June 2011, the laws, regulations and administrative provisions necessary to comply with the Directive. The Belgian government has been failing for some time.

What concerns us further here is the question of how the directive has been transposed into Belgian law and whether the Belgian legislature has used the instruments made available by the directive itself to transpose the directive as strictly as possible. In the committee I have tried to show you that the Belgian legislature did not do that. There are many holes again. Again, I do not see any reversal in immigration policy. Does this not fit into the political game? Is it not appropriate for political families? I do not know. In any case, I can only conclude that the Directive has not been strictly implemented and that it has gone fairly far.

The Directive requires Member States to issue a European Blue Card to third-party nationals who meet the conditions laid down in the Directive and for whom there is no reason for refusal, and to guarantee the holders of such a European card the rights arising from that status.

However, in a number of ways, the Directive gives Member States a freedom of choice when completing the European blue card system. In particular, the way in which the Belgian government, as the proposer of the bill, uses or does not use this discretionary political freedom has given rise to our many amendments, which we have already defended and explained in the committee.

I will try to express our fundamental criticism in a number of points. We have also put them into amendments.

In the first place, under Article 6 of the Directive, Member States are free to determine the number of third-country nationals to be admitted on their territory pursuant to the Directive, in order to obtain a highly qualified job. In your draft law it is chosen not to set a maximum. You do not motivate that choice in any way.

Secondly, Article 4 of the draft law provides for family reunification for the holder of a European blue card that, if the family has already been formed or re-formed in another Member State of the European Union, the family reunifier is not required to provide proof of sufficient housing and that, as regards the required stable, regular and sufficient means of subsistence, the personal resources of the surviving family member are also taken into account. The directive, Mrs. Secretary of State, does not in any way require that exemption. In this regard, I refer to Article 19 of the Directive.

Third, Article 61/27 of the Foreign Act, added to Article 13 of the draft law, requires the applicant to submit a medical certificate showing that he has not been affected by any of the diseases listed in the Annex to the Foreign Act, as well as an extract from the criminal register or an equivalent document showing that he has not been convicted for crimes or misconduct of common law, issued by the country of origin or by the country of his last residence.

Paragraph 1, second paragraph, however, states that when it is impossible to submit these documents, the Minister, or the Service Vreemdelingen Affairs, the foreigner "taking into account the circumstances" can nevertheless authorize "to stay in Belgium for the purpose of exercising a highly qualified job".

The explanatory note states that this exception allows a highly qualified worker who was only slightly convicted to issue a residence permit. Mrs. Secretary of State, the directive does not contain any obligation to make such an exception.

Nor does the draft text refer to the concept of “light conviction”. Regardless of the question of what “light condemnation” should be understood, I think you are opening the door again here. This article has also been amended. Our amendment was supported by other members.

I come to my fourth point of fundamental criticism. Article 11(1) of the Directive provides that Member States must decide on an application for the European Blue Card within 90 days at the latest, and that the national law of the Member State concerned shall determine the possible consequences of failing to make that decision within 90 days. Article 14 of the draft law ⁇ ins the maximum decision-making period of 90 days, but stipulates that a residence permit must be granted if no decision was taken after the expiry of that period.

Instead of considering the absence of a decision as a silent approval, the directive allows the possibility to equate it with a silent refusal. The Belgian legislature has apparently chosen to equate the absence of a decision within the specified deadline with an approval. To be honest, I do not think that is an immediate reversal of your immigration and asylum policy.

I come to my fifth point of criticism. Article 16 of the draft law does not make use of the possibility provided to Member States by Article 9(3) (d) of the Directive to withdraw or refuse to renew the European card "when the holder of a European blue card requests social assistance, provided that the Member State concerned has provided him with appropriate written information in advance". This can, of course, be taken into account as a possibility to withdraw the European Blue Card or refuse to renew it, if the holder does not have sufficient means of subsistence for himself or his family members, in order to avoid falling at the expense of public authorities.

In our case, it is worthy of a recommendation to automatically terminate the right of residence in the event of a request for social assistance for that European social card. In this regard, we have submitted an amendment in the committee that we will submit here again.

I come to my sixth point. Although the added conversion table that we received in the committee showed otherwise, the possibility provided by Article 8, paragraph 5 of the directive to reject an application for that European blue card was not used if a sanction was imposed against the employer under national law, i.e. under Belgian law, for black work and/or illegal employment.

Ladies and gentlemen, we can continue for a while. We can file all these articles here. Our party submitted a total of 13 amendments. If this government ever had the will to pursue a clear and more stringent migration policy, it would have approved these amendments, or at least some of them, in the committee with a large majority. However, it has gone differently. None of the parties found the amendments even worth discussing. A different migration policy should apparently not be in this constellation of federal politics. It is good that this has come to the surface.

The Flemish Interest will not approve this bill in any case, for various reasons. The most fundamental reason is that you do not even make use of the possibilities contained in the European Directive to introduce the European Blue Card restrictively. Both in terms of numbers and consequences, the opportunity to finally realize the beginning of a trend break in migration policy is repeatedly missed. At least it will not be with us.

The present bill is generally considered good. It is the transposition of a European Directive. In fact, it simplifies access to the labour market for highly qualified workers. At last, attention has been given to active migration instead of the usual initiatives, as we are used to here, around regularization and passive migration channels.

I am surprised by the reaction of the SP. Not only is a residence permit granted here on the basis of a blue card, but it also regulates family reunification. This means that anyone who falls under the category of highly qualified and high-tech staff can bring his family with him. It also regulates the status of long-term resident. We are talking about third-country citizens, and we are only looking at the brainstrain of the third world.

We must realize in Europe that we are facing a demographic winter. Aging is a trend throughout Europe and this trend is also relevant here. We must bear in mind that if we want to maintain our social model, jobs must be filled and that we must be open to migration, to active migration and to the migration we want.

The draft law sets out a number of admission criteria that are very general and apply to everyone, such as a valid travel document and a health insurance. There are also a number of specific conditions, including an employment contract for highly qualified jobs; one must earn gross €50 000 per year in order to enjoy this status.

However, we do not understand that there is an exception to two general criteria that apply to everyone. Every foreigner who enters must present a medical certificate showing that he is not infected with diseases listed, such as tuberculosis, and he must present proof of good conduct and morals, showing that he is not a citizen who can be dangerous to our public order. For the foreigner who receives the blue card, this exception can be made. We do not understand that, because that stranger can, for example, suffer from tuberculosis, or can be a criminal.

Therefore, we have submitted an amendment which we hope that all present will assess it as we have assessed the bill, namely in terms of content and quality. We support the bill. We hope that our amendment will also benefit from your support.

For the European Union, the issues of immigration and labour mobility are among the major challenges posed by globalization, challenges that can be better overcome if the Member States act together in the framework of a comprehensive, balanced and coherent policy that takes on addressing all the effects of the migration phenomenon.

The European Directive is part of a set of measures taken by Europe to make the European Union the most competitive and dynamic knowledge-based economy in the world. It aims, subject to a number of conditions, to attract and retain a highly qualified workforce from third countries. It is this directive that is transposed into the bill submitted to our vote today.

In the MR, we are delighted with this, especially since in recent months, Belgium has focused its attention primarily on passive immigration. This bill will allow us to stimulate active immigration and that is a very good thing! The MR has long sought the assumed opening of a legal channel of economic migration. We believe that economic migration would help to meet the needs of our labour market and combat illegal labour. We consider well-thought-out economic immigration to be an asset for our economies, but also a development factor for both Europe and the countries of the South.

The project we are going to vote for is fully in line with this vision, which is why we will support it. In our country as well as elsewhere it has been felt, for a long time, the need to develop a real economic migration policy. Whether it is addressing the shortage of workforce in high-skilled and shoreless professions or addressing the aging population and the imbalance between the share of active and inactive persons on the labour market, all indicators go in the direction of economic migration.

Therefore, we must attract foreign workers who possess certain skills. However, with its many national legislations, Europe has so far been less attractive than the United States, Canada or Australia. Europe too often appears to foreign workers as a fragmented and complex whole. This is why the Blue Card Directive, which simplifies the procedures for admission and combining residence and work permits, is an excellent initiative that we can only validate and encourage.

This being said, despite the progress that the new regulation will allow, we will have to be attentive to the problem of the risk of brain leakage or the waste of skills. We will also need to ensure that the necessary partnerships with regional authorities are properly established. We will be vigilant on this.

Mr. Speaker, Mrs. Secretary of State, dear colleagues, the bill that is submitted to us today aims to transpose a European directive.

We will, of course, support this text despite the few reservations we have expressed in the committee, and which I will recall in a moment.

In short, the principle of this text is simple and uniform for all European countries.

One of the major innovations brought by this project is the creation of a single permit – the blue card – which will serve as both a residence permit and a work permit for highly qualified people who come to work in our country for a minimum duration of one year with a gross annual salary of at least 50,000 euros per year.

The employee will receive a residence permit for more than three months and will be able to work legally in our country. After five years of residence in our territory, he will be able to obtain the status of permanent long-term resident. Your family members will benefit from a shortened treatment period of up to four months. This period may, however, be extended, but to a single renewal and for a period of three months, when the complex nature of the file requires it.

However, Mrs. Secretary of State, we have one fundamental comment. Like my colleague Karin Temmerman, I would like to draw your attention to the fact that brain leakage in third countries must be subject to great vigilance, leakage which could be stimulated with this directive. In fact, if we really wanted to help these countries, we would have to do the opposite and encourage them to keep their highly skilled workers so that they can contribute to the construction of their country. There is something somewhat illogical in this project. This is the ransom of this text.

That being said, I would like to take this opportunity to rest on the two questions I have already submitted to you in the commission. So, has a consultation on this text taken place with the Regions, which are competent for the issue of labour titles?

Furthermore, what happens when a highly qualified worker wishes to proceed with a family reunification if his family was not yet constituted when he arrived on our territory?

Here are the few remarks I would like to make.

As I said at the beginning of my speech, despite the few reservations I have expressed, my group will support the bill in question.

Mr. Speaker, I will give a brief explanation regarding the blue cards or work permits for higher educated persons.

I am pleased that the Union creates opportunities to attract highly qualified workforce. It is important for the development of our economy, since it is clear that the future economic development of the Union and also of our country lies primarily in the knowledge economy and, to a lesser extent, in the handwork and industrial-economic sectors.

For these latter sectors, we must especially ensure that we also give the current labour reserve and the unemployed maximum opportunities for employment. In addition, we must take into account that in addition to the unemployed in our home country, we also have to deal with the free movement of workers within the EU. We haven’t seen all of this yet, this is still going on full. Over the past year, many workers from Poland have come to our country. We also see an increase in the newly joined Member States. I think it is important that we take that into account.

The discussion in the committee also focused on the possible adverse consequences of such European directive, in particular the consequences for the countries themselves. Is there a potential brain-train, or is everything outlined in the long run and can circular migration also have positive effects for the countries of origin?

We must not be blind to problems, but we are part of a globalized world and we see that, of course, people are always looking for a better future. Certain higher educated people will come to the West, while other people will fulfill needs in those developing countries. We can also look at the forms of support we can offer from our country to such countries. That is important.

We also notice that higher-educated people in their own country have too few opportunities. Sometimes there are too many higher educated people who do not all get to work in their own country. We can ⁇ use those people, for example, in cumbersome professions, especially because we have an expansion in our knowledge economy.

We must ensure a win-win situation for everyone, not only for us but also for the countries of origin.

The impact of the introduction of the blue card will need to be evaluated in the future. Are we right with our reaction? Can we ensure that there is no braindrain? Can we ensure that those countries are also improving, and not only our labour market?

We will also have to look at what this will bring to Europe. Those from third countries who come to Europe, even if they go to France, Spain or England today, will have the status of long-term resident after 5 years. This means that they will automatically also get the right to move to another Member State, including Belgium. We will have to talk about it at European level and ensure that it goes harmonised.

We have seen that a number of people from Spain, Portugal and Greece are already coming to our country. These countries are most affected by the crisis. Those from third countries who have lived there for five years will also come to our country.

A significant contribution to the regions will be requested. They are responsible for the assignment of the labour criteria. In the future, the regions will be able to determine the working criteria themselves and to issue a work permit. Of course, we remain competent for the residence permit, but they may impose certain conditions, as permitted for certain occupational categories.

This is a positive effect. Thus one can draw out a policy tailored to the needs and needs of a Region. This must be done in relation to the country of origin.

Finally, I would like to advocate that we should step away from the utilitarian idea that the people here come to work alone for a short period, for example for six months. That will sometimes be the case, but for people who come here to work for a longer period, we must ensure that they can integrate in our country and learn the language in the very short term. We must ensure that they are involved and that their families and children can integrate as much as possible into our society. It will be a task for the Communities to carry out further work on this.

It is important for us to take care of this when transposing the European Directive.

We naturally endorse it, but also ask for timely evaluation and consultation with the other European countries in order to be able to address some abuses or adverse consequences.

The discussions in the committee were very extensive. I would like to thank my colleagues for their support, concerns and comments in the transposition of the European Directive. It would indeed have been better to introduce the single permit first, but, as stated in the committee, there has been a delay in the European Directive and therefore the transposition of the Blue Card Directive has come first.

The aim is to enable economic migration for highly qualified persons from third countries. This is in demand in our labour market. As noted in the committee, we do not need to use quotas. After all, if the figures show that too many candidates apply for a work permit in a particular profession, the Regions can refuse them.

I understand the concerns of the colleagues about a possible brainstrain; we must follow the phenomenon properly and act cautiously in this regard.

Mr. Logghe has received a more than good explanation, not only here on the six amendments, but also in the committee on the seven other amendments. I will not repeat it.

Circular migration should be possible in the future. The transposition of the Directive provides a good impetus for this, as it provides the possibility of returning to the country of origin.

Mr. Logghe expressed his concern about the consequences for social security. People with an income of more than 50 000 euros will not apply for a living wage as soon as possible. They will also be able to purchase a suitable home. He submitted amendments to the committee to raise the salary limit to 75 000 or 100 000. I then invited him to look for workers on the streets who deserve such a salary.

After the transposition of the directive, we need to examine the potential negative or disturbing consequences at European level. There is free movement. This is work for the future.