EU Immigration and Asylum Law and Policy Droit et Politique de l'Immigration et de l'Asile de l'UE

By Daniel Thym, Director of the Research Center Immigration & Asylum Law, University of Konstanz

Germany has EU’s largest economy and is among the first countries to be hit perceptibly by demographic change. That makes it a perfect test for how European economies with robust welfare states may regulate labour migration in the future. No less than three years after a first round of substantial reforms, the Bundestag opened the labour market even further. While the new points system receives much attention, another element may prove more significant.

The future Germany rulebook will rest on four pillars. First, the government used the transposition of the revised Blue Card Directive to further liberalise the entry of the highly skilled with university degrees. In doing so, it built upon the previous reform, including for workers with professional training in accordance with German standards. Secondly, the new ‘points system’ appears to emulate the Canadian and Australian model, even though its field of application will remain much more limited. That is why a third entry channel, hidden in an executive regulation, may prove critical. The ‘experience pillar’ generally opens the German labour market for skilled workers with a job-offer, thus unearthing a sizeably reservoir of potential immigrants. Finally, the same executive regulation introduces new pathways for the unskilled, which could breathe life into the EU project of ‘talent partnerships’, also for purposes of indirectly managing the asylum system.

1.    Highly Skilled: Blue Card and Beyond

In contrast to the points system, German legislation transposing the Blue Card Directive 2021/1883 is not exciting, but politically and practically highly relevant. Eurostat statistics show that no less than two thirds of all blue cards are delivered by German authorities. Overall numbers will increase further as a result of the decision to decrease the gross annual salary level from 58,400 to 43,800 EUR from November 2023 onwards (slightly less than 40,000 EUR for recent graduates and certain IT professionals). Several additional changes generously implement the provisions of the Directive (section 18g).

Crucially, the blue card is not the only gateway for highly qualified workers. Those with tertiary education and a job offer but a salary level below the blue card threshold will benefit from an individual right to obtain an entry visa, instead of the previous discretion (section 18b). Labour market tests had already been abandoned three years ago, while the confirmation that the conditions of employment reflect domestic practices can be rendered more flexible by the labour agency (section 39). None of this would have been possible if the Commission and the European Parliament had convinced the Council to monopolise the admission of the highly skilled under the Blue Card Directive.

More than 40% of German blue cards are given to third country nationals residing on the territory already. Most of them are graduates of German universities (here, pp. 10, 14). Entering the labour market via the ‘academic route’ presents a sort of ‘ideal immigration’ scenario: companies are familiar with educational achievements; language skills tend to be better; and migrants are familiarised early on with social and cultural patterns in their new home state. The revised German law does not change much in this respect, since graduates benefit from a 18-month search period for qualified migration under Article 25 of the Students and Researchers Directive (EU) 2016/801 already. If they succeed, they have a statutory guarantee to receive a blue card or a highly skilled migration permit. That is more generous than in Canada, Australia, or the United States where graduates may fail to qualify for labour market access under the points system or the H-1B visa scheme.

2.    Professional Training: Structural Limitations of the Status Quo

Ten years ago, the OECD first praised German labour migration rules to be among the most liberal for the highly skilled with tertiary education. That brings us to a critical watershed: besides the ‘highly skilled’, companies are increasingly looking for ‘skilled’ workers. Fachkräftemangel (skilled workers shortage) has become a household term. While highly skilled labour market is straightforward to regulate, given the comparability of university education, professional training differs markedly. German ministries, industry associations, and trade unions are proud of the dual education system (duale Ausbildung), which combines apprenticeships with vocational schools. The decisive element of the reform package adopted three years ago was to generally open that labour market for skilled workers with vocational training (section 18b). Crucially the definition of ‘skilled workers with vocational training’ (section 18(3)(1)) relies—also in the future—on domestic authorities recognising home state professional training to be equivalent to German standards. Third country nationals fulfilling that requirement of equivalence are generally admitted nowadays.

Many will find it impossible to cross that hurdle for the simple reason that most countries, even within the EU, do not have professional training in line with German standards. Three years ago, the pressure from the Fachkräftemangel was not yet tangible enough to abandon the equivalence test. Instead, the government introduced a different solution, which remains a critical route of entry after in the future. Instead of lowering standards, third country nationals are to be admitted for purposes of vocational education, thus emulating the success of the ‘academic route’ for students. Such ‘home-grown’ skilled labour has worked to a certain extent (here, pp. 10) and may continue to expand, once companies have set up, with the support of state agencies, attractive programmes.

This year’s reform package further liberalises the professional training pathway in several smaller respects (sections 16a, 16d–16d). To use it can be attractive for migrants as well, since it will often result in better carrier prospects and a higher income in the medium run than entering via the new, alternative routes. However, the sheer urgency of the Fachkräftemangel entailed that it was not enough any longer to hope that the ‘training route’ would result in a sufficient number of skilled workers.

3.    A ’Points System’ Exclusively for Job-Seekers

For more than two decades, a points system mirroring the Canadian and Australian example has been a vision of German migration policy. Political actors loved the idea so much that they tended to ignore that the blue card and the other entry channels mentioned previously have realised most of its potential already. One example: A substantial number of those applying under the Canadian points system are university graduates who wish to remain (here, p. 26). Germany gives that option, as we have seen, under more generous conditions in accordance with the Students and Researchers Directive.

As a result, the future German points system will be much less important than the high-flying name suggests. It will be limited to job-seekers, which have to qualify under a three-tier admission test.

• First, applicants require a mandatory level of formal education. Those with a university degree or professional training in accordance with German standards can enter automatically, while those with a university degree or two-year professional training below German standards can qualify via the point allocation system under the second tier (section 20a(3)–(4)). That is a critical conceptual about-turn: formal education under home state standards is enough, even if it differs from the specificities of university education or dual vocational training in the German tradition.

• Secondly, applicants must receive six points under a straightforward allocation scheme. While the criteria for points allocation are laid down in the legislation adopted by parliament, the number of points per category can be adapted by means of an executive regulation to respond to potential difficulties (section 20b and annex). Doing so may prove necessary to change the relative weight of each category or to respond to soaring application numbers paralysing the admissions system.

	4 points	3 points	2 points	1 point
Professional training	Recognised as being partly equivalent to German standards
Professional experience in the area of training		five within the past seven years	two within the past five years
German language		B2	B1	A2
English				C1
Shortage occupation				IT sector
Age			< 35	> 35 < 40
Spouse				qualifies under the points system as well
Previous legal residence in Germany				at least six moths

The theoretical rationale behind points system is that ‘skills’ cannot be measured by means of formal education only. Additional factors may indicate whether someone promises to add economic value. In that respect, tiers one and two seek to render admission more flexible without abandoning the idea of formal education altogether—a decision which arguably suits the characteristics of the tightly regulated, high wage, and technology-prone German labour market. Closer inspection of the points allocation shows that those qualifying under tier one will find it comparatively easy to cross the six points threshold if they have professional experience, German language skills, and a young age.

• Thirdly, not anyone with six points will automatically receive an entry visa. Consulates have discretion whether to issue a visa, whose legal limits can be reviewed by administrative courts in case of rejection. Moreover, the government retains the authority to introduce numerical quotas anytime, notwithstanding ambiguity as to whether such quotas should be global or limited to certain countries or sectors. It remains uncertain, in addition, how state authorities would prioritise among those with six points or more if the quote was oversubscribed. Such open-ended legislative drafting is unusual in Germany.

Successful applicants unter the points system will receive an ‘opportunity card’ (Chancenkarte)—a name indicating that the points system is for job-seekers exclusively. They must prove to be economically self-sufficient and cannot receive social assistance during job-hunting for a period up to 18-months, although part-time jobs below the level of qualification are permitted during the search period (section 20a). Thereafter, they have to qualify for a regular residence permit as a skilled worker—or return home. Delivering parcels for online shops or driving taxis will not be sufficient to stay in Germany.

4.    Hidden Gem: Admission of Skilled Workers with a Job Offer

While we can expect a visible points system to attract quite some attention (the government promises to increase the availability of German language courses at Goethe institutes), there is no guarantee that thousands of potential workers will necessarily apply. It can be cumbersome to apply for entry for the purposes of job-hunting without having a guarantee that one will eventually find a job. Indeed, Germany has been operating a job-seekers visa for those with a university degree or professional training in accordance with German standards for some time, which generated no more than 196 entries from abroad during 2021 (here, p. 14). That is why another admission channel may prove much more relevant in practice. Instead of entering as job-seekers visa the points system, aspiring workers may simply apply for a job from abroad and enter the country on that basis.

Hidden in the Occupations Regulation (Beschäftigungsverordnung), which is adopted by the ministries of labour and interior, the government will introduce an entry channel for third country nationals with a university degree or two-year vocational training, irrespective of whether they are equivalent to German standards or not (section 6). This threshold of formal education is the same as under tier one of the points system. Additional requirements differ from the points system: the point allocation scheme is replaced by the need for a job offer, two years of professional experience during the past five years, and an annual salary of roughly 40,000 EUR (or lower when the employer is bound by a collective labour agreement). Other conditions, such as language skills, do not exist, although the authorities may exclude problematic cases on basis of their discretion.

That opens a potentially huge reservoir, as a simple internet search demonstrates. Literally millions graduate from university in countries such as Egypt, Brazil, or Venezuela each year and struggle to find a job in their home state. Professional training exists in numerous countries as well (for instance in Uganda and Cambodia). It may not match the specificities of the German dual vocational training scheme, but that will not be a hindrance anymore in the future for as long as a German employer agrees to hire someone and pay the annual salary level required by the executive regulation. The Expert Council for Integration and Migration had proposed introducing a similar scheme five years ago already (here, pp. 55-57).

5.   Administrative Practices: Critical Bottleneck

External observers may be surprised to hear that implementation may prove to be a decisive—and potentially embarrassing—barrier for the effective rollout of the new labour migration regime. While consulates abroad will serve as a front office to collect applications and perform certain checks, the critical assessment, both under the points system and the Occupations Regulation, of the professional training requirement and whether a sufficient number of years of professional experience exists in the area of education will be done by domestic authorities. Assessing these criteria will be critical for the smooth functioning of the points system and the admission scheme for skilled workers with a job offer alike.

Crucially, the federal parliament leaves it to the regions (Länder) to determine the authorities responsible in a sort of blame-shifting. This could prove another nurdle increasing the degree of administrative difficulties which exist already: visa applications are notoriously slow, in some embassies at least; documents are often sent to domestic authorities by regular mail, since the digitalisation of procedures involving several layers of a federal administrative system takes years to implement; domestic migration authorities are approaching the point of collapse—or are beyond already, in Frankfurt for instance. Years of high entry numbers via the asylum system and from Ukraine come at a price.

6.   Trial Balloons for Unskilled Labour

Legal migration has featured prominently in policy papers seeking to improve asylum systems for quite some time. ‘Talent partnership’ is the term favoured by the European Commission these days, thus supplanting the ineffective ‘mobility partnerships’ of 15 years ago (here, ch. 18.4). The German government prefers the generic term ‘migration agreement’, which the coalition agreement had promised and for which a special envoy, Joachim Stamp, was appointed in February. None of these projects has yielded meaningful results so far, neither at the EU nor at the domestic level. Most recently, the abstract promise of labour migration in the EU–Tunisia Memorandum of 16 July 2023 has not delivered so far.

The German government appears determined to make the idea work. The Bundestag reaffirmed that it stands ready to expand the Western Balkans Regulation (Westbalkanregelung) to other third states. They essentially allow workers from the Western Balkans countries to receive a temporary labour market visa if they have a job-offer, irrespective of skill levels, and are economically self-sufficient. They are much discussed as a model of how legal migration channels can, together with other sweeteners such as visa-free travel and financial support, help to reduce the number of asylum applications and increase return rates. The annual quota for the Western Balkans will be increased to 50,000 workers, thus increasing the importance of the scheme.

Crucially, any future expansion of the Western Balkans Regulation will be dependent on third state cooperation in migration management and return. The government has understood that legal pathways are no magic potion to ‘deflect’ entries via the asylum system to legal migration channels. Research demonstrates the socio-economic composition of adult asylum applicants: 25% of those who entered via the asylum system during 2015–19 had attended—not necessarily completed—university or professional training back home, the same percentage of adults who did not reach beyond primary school (here, p. 4). Many struggle to find full-time employment without in-work benefits, even after several years of residence. As a result, a majority of asylum applicants would not have qualified for the points system or the skilled labour migration permit to start with.

The new package will introduce another entry option for the unskilled in the Beschäftigungsverordnung (please add translation) which can, as an executive regulation, be adapted easily: temporary employment, also in other sectors than ‘seasonal work’, will be permitted for up to eight months per year (safeguards prevent the consecutive hiring of temporary workers by means of rotation); employers have to be bound by collective labour agreements and must pay for transportation. This temporary employment scheme becomes available once the employment agency has introduced a quota for a specific sector, meaning that the government stays in full control. It can be used as a negotiating chip for migration agreements or as an end in itself irrespective of the asylum system.

7.   Three Lessons for the Policy Debate in Brussels

It is not without irony that Germany used the transposition of the revised Blue Card Directive as an opportunity to liberalise labour migration—mirroring the situation a decade ago when the government decided not to activate all the exceptions it had insisted upon during the legislative debate in Brussels. That change of mind came for a reason. Germany was the ‘sick man of Europe’ with four million unemployed when it vehemently opposed the Commission’s liberal approach to labour after the millennium change (here, ch. 14.1). Today, the economy is in urgent need of skilled workers, notwithstanding enduring unemployment among the unskilled, including many Ukrainians and refugees.

The latest German reform holds at least three lessons for the European policy debate.

Firstly, an abstract awareness of demographic change is not enough. A shortage of skilled labour must be tangible for political actors, businesses, and citizens. In that respect, Germany is a forerunner, although statistics show that countries such as Italy, Poland, or Spain will inevitably follow in the years to come. In that respect, political dynamics depend on more than demographics. Economic growth may be higher in some countries than others and the structure of the economic may differ as well (think of distinct unemployment levels for the highly skilled, skilled, and unskilled in Germany).

Secondly, structural differences complicate a uniform European intervention. Comparatively easily to regulate across Europe, as a result of comparable socio-economic characteristics, are entry channels for university graduates (Blue Card Directive), seasonal workers (Seasonal Workers Directive), intra-corporate transferees (ICT Directive), and students (Students and Researchers Directive). By contrast, factors such as the German dual vocational training system would render any attempt at agreeing on a common rulebook complex. Even if it was adopted, it would inevitably give Member States so much leeway that the added value would be limited, mirroring the contents of the Single Permit Directive, also in the ongoing reform debate.

Thirdly, swift reaction might prove critical. By way of example, think the relative weight of the different criteria of the German points system and the conditions of the new entry channels in the Employment Regulations. EU institutions are badly placed for such constant updating in response to factual, administrative, and economic challenges, which, moreover, might differ from country to country. That is why the Commission discarded the idea of a points system when drafting today’s blue card (here, pp. 202–202). One fully understands the desire of the EU institutions to deal with labour migration, but some of these political resources might arguably be better invested in reducing compliance deficits which haunt other aspects of supranational migration policy, notably in the field of asylum.