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Article: Comparison of the Dutch Highly Skilled Migrant Scheme and the European Union Blue Card Scheme for highly skilled workers By Edward C. Corrigan and Li Tian

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  • Article: Comparison of the Dutch Highly Skilled Migrant Scheme and the European Union Blue Card Scheme for highly skilled workers By Edward C. Corrigan and Li Tian

    Comparison of the Dutch Highly Skilled Migrant Scheme and the European Union Blue Card Scheme for highly skilled workers

    by


    March 07, 2014

    Canadian Immigration policy and procedure has been shifting to hiring more foreign skilled workers with temporary status in Canada than landing permanent residents with permanent residence rights and a right to obtain Canadian Citizenship. Canada seems to be shifting towards a policy of bringing in more foreign skilled workers which is similar to the policies being adopted by the European Union. Accordingly it is useful to briefly review the practices of the European Union Blue Card Directive program for highly skilled foreign workers and the Dutch highly skilled foreign worker Kennismigranten scheme.

    The European Union (EU) Blue Card Directive[1] scheme for highly skilled foreign workers came into force on May 25, 2009. This directive does not restrict the right of each EU member state to enact its own policies for foreign workers. As stated in 3(4) of the Directive:

    This Directive shall be without prejudice to the right of the Member States to issue residence permits other than an EU Blue Card for any purpose of employment. Such residence permits shall not confer the right of residence in the other Member States as provided for in this Directive.[2]

    The Dutch Kennismigranten program, with the introduction of Modern Migrant Programme in January 2011, has substantially speeded up the application procedure for highly skilled foreign workers. Since then, these two schemes have been commonly used by third-country nationals (citizens of non-EU states) to obtain EU long-term residency through the Dutch immigration office. It is hard to say which scheme is better suited for those third-country nationals who intend to settle down in the Netherlands and obtain Netherlands-issued EU long-term residency because choosing one or the other depends on one’s particular situation.

    This is taken from the Netherlands Embassy website:

    If you are well qualified but do not yet have a job in the Netherlands, you can get an entry visa - an 'authorisation for temporary stay' (MVV) - and then apply for a one-year residence permit. During that year, you can look for employment as a 'highly skilled migrant' or start up an innovative company.[3]

    The conditions to obtain the Dutch Highly Skilled Migrant program are set out as follows:

    Only a recognized organization can submit an application on behalf of a highly skilled migrant.

    The organization has to be recognized by the IND as a sponsor. As such, an organization that is not recognized by the IND cannot act as a sponsor for a highly skilled migrant.

    General conditions

    The following applies to all cases:

    •The foreign national has a valid passport.

    •The foreign national does not pose a threat to public order or national security. The foreign national has not been convicted for a crime and has not committed any war crimes, acts of terrorism or crimes against humanity.

    •The foreign national must take out healthcare insurance in the Netherlands.

    •The foreign national has not previously stayed in the Netherlands illegally.

    •The foreign national has not given false information or have withheld important information to support any previous applications.

    •The foreign national must undergo a tuberculosis (TB) test in the Netherlands. The foreign national must undergo this test within 3 months after the residence permit has been issued. If necessary, the foreign national must be treated for TB.

    If the foreign national comes from Australia, Canada, Israel, Japan, Monaco, New Zealand, Suriname, Switzerland, the United States of America or an EEA or EU-country, then no TB test will be required.

    Specific conditions for working as a highly skilled migrant

    •The highly skilled migrant must have an employment contract, an appointment decision, or, being a guest lecturer, a guest agreement. For an intra-company transfer the highly skilled migrant needs to have an employer's declaration from the foreign employer. This declaration should include the duration of the transfer, the type of employment as well as the income.

    •The highly skilled migrant must satisfy the income requirement for highly skilled migrants. The amounts are index-linked on an annual basis

    •To work in the Dutch healthcare services the highly skilled migrant has to be included in the so-called BIG register. The provision of healthcare services by individual practitioners is regulated by the Individual Healthcare Professions Act (BIG). When admitted to the BIG register the highly skilled migrant is then able to use his legally protected professional title.[4]

    For purposes of the EU Blue Card Directive under Article 2 definitions a third-country national means:

    For the purposes of this Directive:

    (a) "third-country national" means any person who is not a citizen of the Union within the meaning of Article 17(1) of the Treaty.[5]

    In order to be eligible to apply for EU long-term residency in the Netherlands, third-country nationals must at first obtain a legal work and temporary residence permit through one of these two schemes, which allow them to legally work and live in the country for a period of time. It is harder for third-country nationals to be qualified as highly skilled workers under the EU Blue Card Directive scheme than under the Dutch Kennismigranten scheme.

    According to the EU Blue Card Directive, a qualified third-country national must meet the following requirements in order to obtain an EU Blue Card (EU work permit). First, the situations listed in article 3(2) of the EU Blue Card Directive do not apply to a third-country national. This section reads as follows:

    3(2) This Directive shall not apply to third-country nationals:

    (a) who are authorised to reside in a Member State on the basis of temporary protection or have applied for authorisation to reside on that basis and are awaiting a decision on their status;

    (b) who are beneficiaries of international protection under Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third-country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted [15] or have applied for international protection under that Directive and whose application has not yet given rise to a final decision;

    (c) who are beneficiaries of protection in accordance with national law, international obligations or practice of the Member State or have applied for protection in accordance with national law, international obligations or practice of the Member State and whose application has not given rise to a final decision;

    (d) who apply to reside in a Member State as researchers, within the meaning of Directive 2005/71/EC, in order to carry out a research project;

    (e) who are family members of Union citizens who have exercised, or are exercising, their right to free movement within the Community in conformity with Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States [16];

    (f) who enjoy EC long-term resident status in a Member State in accordance with Directive 2003/109/EC and exercise their right to reside in another Member State in order to carry out an economic activity in an employed or self-employed capacity;

    (g) who enter a Member State under commitments contained in an international agreement facilitating the entry and temporary stay of certain categories of trade and investment-related natural persons;

    (h) who have been admitted to the territory of a Member State as seasonal workers;

    (i) whose expulsion has been suspended for reasons of fact or law;

    (j) who are covered by Directive 96/71/EC of the European Parliament and of the Council of 16 December 1996 concerning the posting of workers in the framework of the provision of services [17] as long as they are posted on the territory of the Member State concerned.

    In addition, this Directive shall not apply to third-country nationals and their family members, whatever their nationality, who, under agreements between the Community and its Member States and those third countries enjoy rights of free movement equivalent to those of Union citizens.[6]

    Second, this scheme requires the third-country national to engage into a ‘highly qualified employment’ defined in Article 2 (b) of the Directive. This employment is defined as follows:

    Article 2

    (b) "highly qualified employment" means the employment of a person who:

    - in the Member State concerned, is protected as an employee under national employment law and/or in accordance with national practice, irrespective of the legal relationship, for the purpose of exercising genuine and effective work for, or under the direction of, someone else,

    - is paid, and,

    - has the required adequate and specific competence, as proven by higher professional qualifications.[7]

    Such an employment must be paid, legal and genuine in accordance with the corresponding national law of the EU country. For a third-country national who works in the Netherlands, the corresponding national law refers to the Dutch law. The most important aspect is that this employment requires the third-country national to possess adequate and specific technical or professional skills, or corresponding educational backgrounds to qualify. The professional educational requirements are the completion of at least 3-year post-secondary or higher education,[8] or, alternatively, at least 5 years professional experiences related to the employment.[9]

    Apart from the aforementioned requirements, the third-country national must obtain a valid minimum 1-year contract for the employment he/she relies on to apply for the EU Blue Card.[10] Additionally, the gross annual salary for this employment must be at least 1.5 times higher than the average gross annual salary in the corresponding member state.[11] This “1.5 times” requirement can be reduced to “1.2 times” if the applicant engages in one of the limited special employments listed in article 5 (5) of the Directive. This article states as follows:

    5. By way of derogation to paragraph 3, and for employment in professions which are in particular need of third-country national workers and which belong to the major groups 1 and 2 of ISCO, the salary threshold may be at least 1.2 times the average gross annual salary in the Member State concerned. In this case, the Member State concerned shall communicate each year to the Commission the list of the professions for which a derogation has been decided.[12]

    Furthermore, the Dutch government can limit the number of EU Blue Card holders entering into its territory for employment purposes.[13] This means that it is possible that a Blue Card holder from the other EU countries can be denied entry into the Netherlands even though they are technically allowed to work within the EU. This restriction could be a problem for the EU Blue Card holders to fulfil the “two-year residence period in the Netherlands” requirement, which will block them from obtaining the EU long-term residency in the country. For example, along with other conditions, the Dutch government sets a minimum gross annual salary of €60,952 for an EU Blue Card holder to legally stay in the Netherlands for work purposes.[14] The detailed requirements are set as follows:

    General conditions

    The following applies to all cases:

    •The foreign national has a valid passport.

    •The foreign national does not pose a threat to public order or national security. The foreign national has not been convicted for a crime and has not committed any war crimes, acts of terrorism or crimes against humanity.

    •The foreign national must take out healthcare insurance in the Netherlands.

    •The foreign national must undergo a tuberculosis (TB) test in the Netherlands. The foreign national must undergo this test within 3 months after the residence permit has been issued. If necessary, the foreign national must be treated for TB.

    If the foreign national comes from Australia, Canada, Israel, Japan, Monaco, New Zealand, Suriname, Switzerland, the United States of America or an EEU or EU-country, then no TB test will be required.

    Specific conditions

    •It should concern an employment contract for a highly qualified job for at least 1 year.

    •Does it concern a transfer of an employee to a business unit that is established in the Netherlands? In that case, there should be a statement from the foreign (parent) company and a statement from the business unit in the Netherlands.

    •Holders of a European blue card must satisfy the wage requirement that has been set. The wage requirement is index-linked on an annual basis. Visit www.ind.nl for an up-to-date overview of wage requirements.

    •A diploma must be submitted, showing that the employee has completed a higher education degree programme with a duration of at least 3 years. In case of a foreign higher education diploma, the Nuffic (Netherlands organisation for international

    cooperation in higher education) will evaluate the diploma. The evaluation must be enclosed with the application. In case of a Dutch diploma, a copy of a certified diploma must be enclosed.

    •In case of a (regulated) profession such as a doctor or lawyer, it must be demonstrated that the statutory requirements for being allowed to practise this profession has been satisfied.

    •For a period of 5 years before the application, the employer may not have been fined for having violated Article 2 of the Labour Act for Aliens, or for the failure to pay (or the failure to pay sufficient) wage tax, employee insurance premiums or national insurance contributions.[15]

    Under the Dutch Kennismigranten scheme, the employer is responsible for filing an application for a work permit for his prospective third-country employee. To determine whether or not a third-country national can be qualified as a highly skilled worker, the Dutch scheme focuses on the quality, reputation and character of the employer rather than the professional competence of an individual third-country worker. Only the employers registered and recognized by Immigration and Naturalisation Servise are eligible to file applications through the Dutch Kennismigranten scheme.[16] In order to complete the application, the employer is required to submit a written declaration to the IND (Dutch immigration office) along with other required documents about the employee concerned, including the employment contract and other relevant documents such as valid passport, health insurance, etc. The declaration is used to secure that the employer can pay his/her prospective employee. In this case, the prospective employee will have to prove that they will not need to rely on Dutch social assistance.

    In addition, work experience, recognized education and other relevant elements, which are required under the EU Blue Card scheme, are not necessary for the applications through the Dutch Kennismigranten scheme. The Dutch scheme only requires a third-country national to prove that their income meets a required minimum annual gross salary. According to the data collected in 2013, the required annual gross salary for a third-country national over 30 years of age in the Netherlands was at least €52,010. For those under 30, the salary threshold was €38,141. For the non-EU students who have completed post-secondary education or higher in the Netherlands, the annual minimum gross wage was set around €27,336. The data is updated annually by the Dutch government.[17]

    Figure 1: Requirements for applications under the EU Blue Card Directive scheme and the Dutch Kennismigranten scheme:

    The Blue Card

    KM

    Proof of highly qualified employment

    Yes

    Not necessary.

    Contract requirement

    Yes

    Yes

    Salary requirement

    The annual salary should be at least 1.5 times (1.2 for special occupations) of the average gross annual salary in the corresponding state. The threshold for entering and staying in the Netherlands was € 60,952 in 2013.

    € 52,010 (>30 aged)

    € 38,141 (< 30 aged)

    € 27,336 (graduate student)

    In accordance with the EU Long Term Residents Directive,[18] a third-country national from a Non-EU country is eligible to apply for an EU long-term residence permit if they have legally resided in the Netherlands for at least five years. The requirement is only two years for Blue Card holders. In most situations, according to article 4 of this Directive, five-consecutive-year residence in the Netherlands is required for a third-country national to obtain EU long-term residency through the Dutch immigration office.[19] The article is read as follow:

    1. Member States shall grant long-term resident status to third-country nationals who have resided legally and continuously within its territory for five years immediately prior to the submission of the relevant application.[20]

    In addition, according to article 4(3) of the Directive, the applicant cannot be absent from the Netherlands more than for six consecutive months, however his total period of absence within the said five-year period cannot exceed 10 months.[21] However, for EU Blue Card holders, in order to apply for EU long-term residency in the Netherlands, they only need to live legally within the EU for five consecutive years. In addition to this requirement, they must live in the Netherlands in the last two years prior to filing the application. As well, the period that allows these EU Blue Card applicants to be absent from the EU is twelve consecutive months, and eighteen months in total within five years. The relevant requirements are laid out in article 16 of the EU Blue Card Directive:

    2. By way of derogation from Article 4(1) of Directive 2003/109/EC, the EU Blue Card holder having made use of the possibility provided for in Article 18 of this Directive is allowed to cumulate periods of residence in different Member States in order to fulfil the requirement concerning the duration of residence, if the following conditions are met:

    (a) five years of legal and continuous residence within the territory of the Community as an EU Blue Card holder; and

    (b) legal and continuous residence for two years immediately prior to the submission of the relevant application as an EU Blue Card holder within the territory of the Member State where the application for the long-term resident's EC residence permit is lodged.

    3. For the purpose of calculating the period of legal and continuous residence in the Community and by way of derogation from the first subparagraph of Article 4(3) of Directive 2003/109/EC, periods of absence from the territory of the Community shall not interrupt the period referred to in paragraph 2(a) of this Article if they are shorter than 12 consecutive months and do not exceed in total 18 months within the period referred to in paragraph 2(a) of this Article. This paragraph shall apply also in cases where the EU Blue Card holder has not made use of the possibility provided for in Article 18.[22]

    Upon examination, the Dutch Kennismigranten scheme is more suited for most third-country nationals whose first stop in the EU is the Netherlands, especially for foreign students studying in the Netherlands. The requirements are much less stringent under the Dutch scheme than the EU scheme. This fact makes the third-country nationals from a non-EU country easier to qualify to work in the Netherlands. In addition, it is less likely for foreign skilled workers to work in several different EU member states within five years given that most of them are looking for stable employment and long term residence. In this case, the favorable treatment given to the EU Blue Card holders become redundant in most situations. However, for the foreign nationals who have been working in other member states for a period of time on a valid national work permit in the corresponding state, the EU Blue Card scheme is superior. In this way, the period of time the EU Blue Card holders worked in the other states can be counted towards the 5-year period for EU long-term residence permit application in the Netherlands.

    Many foreign nationals want to obtain EU long-term resident status because they can obtain better benefits and protections. An EU long-term resident enjoys protection against expulsion. According to article 12 of the EU Long Term Resident Directive,[23] Member States are not allowed to expel an EU long-term resident unless their presence constitutes an actual and serious threat to public policy or public security of the state where they are living. Article 12 of the EU Long Term Resident Directive states as follows:

    1. Member States may take a decision to expel a long-term resident solely where he/she constitutes an actual and sufficiently serious threat to public policy or public security.

    2. The decision referred to in paragraph 1 shall not be founded on economic considerations.

    3. Before taking a decision to expel a long-term resident, Member States shall have regard to the following factors:

    (a) the duration of residence in their territory;

    (b) the age of the person concerned;

    (c) the consequences for the person concerned and family members;

    (d) links with the country of residence or the absence of links with the country of origin.

    4. Where an expulsion decision has been adopted, a judicial redress procedure shall be available to the long-term resident in the Member State concerned.

    5. Legal aid shall be given to long-term residents lacking adequate resources, on the same terms as apply to nationals of the State where they reside.[24]

    Even though the EU long-term resident is considered dangerous to the corresponding state, this state needs to carefully consider a number of factors including the duration of their residence in the state, their age, the consequences for them personally and for their family members before taking a decision to expel as set out in Article 12 of the EU Long Term Resident Directive set out above. Article 12 of the EU Long Term Residence Directive also emphasizes that economic considerations are not valid reasons to expel an EU long-term resident. As well, according to the EU Long Term Resident Directive, even though only a maximum five-year period of residence can be issued at one time, the EU long-term residence permit can be nearly automatically renewed upon the application by an EU long-term resident without any additional requirements:

    Article 8

    Long-term resident's EC residence permit

    1. The status as long-term resident shall be permanent, subject to Article 9.

    2. Member States shall issue a long-term resident's EC residence permit to long-term residents. The permit shall be valid at least for five years; it shall, upon application if required, be automatically renewable on expiry.

    Article 9

    Withdrawal or loss of status

    1. Long-term residents shall no longer be entitled to maintain long-term resident status in the following cases: (a) detection of fraudulent acquisition of long-term resident status;

    (b) adoption of an expulsion measure under the conditions provided for in Article 12;

    (c) in the event of absence from the territory of the Community for a period of 12 consecutive months.[25]

    This process is different from the work permits issued through the Dutch highly skilled migrant scheme and the EU Blue Card scheme. The length of the Dutch work permit for a highly skilled worker is based on the length of the associated employment contract, and the EU Blue Card needs to be renewed every two years. If the applicants are no longer qualified under these two schemes, their applications for renewal can be easily denied. For example, in terms of renewing the EU Blue Card the following terms are set out in Article 9 of the Blue Card Directive.[26] This article states as follows:

    Article 9

    Withdrawal or non-renewal of the EU Blue Card

    1. Member States shall withdraw or refuse to renew an EU Blue Card issued on the basis of this Directive in the following cases:

    (a) when it has been fraudulently acquired, or has been falsified or tampered with;

    (b) wherever it appears that the holder did not meet or no longer meets the conditions for entry and residence laid down in this Directive or is residing for purposes other than that for which the holder was authorised to reside;

    (c) when the holder has not respected the limitations set out in Articles 12(1) and (2) and 13.

    2. The lack of communication pursuant to Article 12(2) second subparagraph and 13(4) shall not be considered to be a sufficient reason for withdrawing or not renewing the EU Blue Card if the holder can prove that the communication did not reach the competent authorities for a reason independent of the holder's will.

    3. Member States may withdraw or refuse to renew an EU Blue Card issued on the basis of this Directive in the following cases:

    (a) for reasons of public policy, public security or public health;

    (b) wherever the EU Blue Card holder does not have sufficient resources to maintain himself and, where applicable, the members of his family, without having recourse to the social assistance system of the Member State concerned. Member States shall evaluate these resources by reference to their nature and regularity and may take into account the level of minimum national wages and pensions as well as the number of family members of the person concerned. Such evaluation shall not take place during the period of unemployment referred to in Article 13;

    (c) if the person concerned has not communicated his address;

    (d) when the EU Blue Card holder applies for social assistance, provided that the appropriate written information has been provided to him in advance by the Member State concerned.[27]

    EU long-term residency can make legal a third-country national’s stay in the state where the residency is issued. There are also some protections for long term residents under the EU Long Term Residence Directive. In most situations EU long-term foreign residents enjoy equal treatment with nationals including access to employment and self-employed activity, education, vocational training and corresponding governmental grants, social security, social assistance, tax benefits and so on. These protections and benefits are listed in Article 11 of the EU Long Term Residence Directive:

    Article 11

    Equal treatment

    1. Long-term residents shall enjoy equal treatment with nationals as regards:

    (a) access to employment and self-employed activity, provided such activities do not entail even occasional involvement in the exercise of public authority, and conditions of employment and working conditions, including conditions regarding dismissal and remuneration;

    (b) education and vocational training, including study grants in accordance with national law;

    (c) recognition of professional diplomas, certificates and other qualifications, in accordance with the relevant national procedures;

    (d) social security, social assistance and social protection as defined by national law;

    (e) tax benefits;

    (f) access to goods and services and the supply of goods and services made available to the public and to procedures for obtaining housing;

    (g) freedom of association and affiliation and membership of an organization representing workers or employers or of any organization whose members are engaged in a specific occupation, including the benefits conferred by such organizations, without prejudice to the national provisions on public policy and public security;

    (h) free access to the entire territory of the Member State concerned, within the limits provided for by the national legislation for reasons of security. [28]

    Even though Member States are allowed to limit equal treatments or grant nationals favorable treatment in some areas, [29] a long-term EU foreign resident can have advantages over a national work permit holder in general.

    There are, however, some limitations on EU long-term residency. First, an EU long-term residency holder should primarily live in the state where their residency is issued. Even though, in principle, the EU long-term residency holder is allowed to live within the EU, they need to file an application to obtain a residence permit for the state where they plan to stay more than three months in addition to the state where their EU long-term residency is issued.[30]

    Second, family members of a long-term resident will not be automatically granted EU long-term residency. According to EU Family Unification Directive,[31] the duration of the residence permits granted to the family members shall in principle not go beyond the date of expiry of the residence permit held by the EU long-term resident:

    2. The Member State concerned shall grant the family members a first residence permit of at least one year's duration. This residence permit shall be renewable.

    3. The duration of the residence permits granted to the family member(s) shall in principle not go beyond the date of expiry of the residence permit held by the sponsor.[32]

    It is possible that a family member of an EU long-term resident can practically live in a member state for extended periods of time given that the long-term resident might legally be able to stay in the state for long periods. However, these dependents will not receive the benefits that an EU long-term resident can have. Furthermore, once their relationship with the long-term resident is ended, the dependents might be expelled. It is important for a family member, after legally residing in the EU, to find a way to obtain an EU long-term residence permit or permanent residence permit of the state where they want to live.

    In addition, it should be noted that an EU long-term resident status is not the same as EU citizen status. Therefore, an EU long-term resident cannot enjoy the same political rights as an EU citizen. In addition, a newborn child would not automatically obtain EU citizenship. The nationality of a newborn child is decided in accordance with the national law of the member state where they are born or/and the third states where their parents have citizen status. Most European countries require at least one of the parents to either be a citizen of that country, or, in some states, at least a legal permanent resident for the child to be eligible for citizenship. For example, according to Dutch law, every child born of a married Dutch father or mother automatically acquires Dutch nationality, even if he or she is born outside the Netherlands. In this case, the nationality of a child born in the Netherlands depends on the nationality of their parents. In some cases, a child might become stateless because the state of citizenship of their parents only issues citizen status to the child who is born within its territory or automatically acquires the status of their parent who may be stateless.

    In conclusion, even though EU long-term residency has some limitations and drawbacks, it provides an opportunity to non-EU workers to leave the state of their citizenship and live and work in an EU state. As well, EU long-term resident status can provide non-EU workers more benefits and protections than worker status. It is important for those non-EU workers who are pursuing their careers in the EU to find a way to obtain EU long-term residency as it provides more benefits than simply being a foreign worker. Canada needs to carefully consider the long term implications of shifting its immigration policy from permanent residence with the possibility of citizenship and long term foreign workers with little or no possibility of obtaining permanent residence or citizenship in Canada.



    [1] Directive 2009/50/EC on the conditions of entry and residence of third-country nationals for the purposes of highly qualified employment, [2009] O.J. L155/17, 25 May 2009 [EU Blue Card Directive].

    [2] Ibid.

    [3] The Netherlands Embassy in London, United Kingdom, ‘Highly skilled migrants’ <http://unitedkingdom.nlembassy.org/p...migrants.html> accessed 20 December 2013.

    [4] Immigration and Naturalisation Servise, Ministry of Security and Justice, ‘Highly skilled migrants’ (Netherlands) <https://ind.nl/EN/business/employer/.../default.aspx> accessed 20 December 2013

    [5] EU Blue Card Directive, supra note 1.

    [6] Ibid.

    [7] Ibid.

    [8] Ibid, art 2 (g) & (h).

    [9] Ibid, art 2 (g).

    [10] Ibid, art 5 (1).

    [11] Ibid, art 5 (3).

    [12] Ibid, art 5 (5).

    [13] Ibid, art 6.

    [14] Kingdom of the Netherlands, ‘Costs and income requirements’ (Immigration and Naturalisation Service, Ministry of Security and Justice) <https://ind.nl/EN/individuals/employ...requirements/> accessed 20 December 2013.

    [15] Immigration and Naturalisation Service, Ministry of Security and Justice, ‘European Blue Card’ (Netherlands) <https://ind.nl/EN/business/employer/.../default.aspx> accessed 20 December 2013.

    [16] ‘Highly skilled migrants’, supra note 4.

    [17] Besluit uitvoering Wet arbeid vreemdelingen 2013, art.1(d)(1)(a)(1). See also: ‘Costs and income requirements’, supra note 15.

    [18] Council Directive (EC) 2003/109/EC concerning the status of third-country nationals who are long-term residents [2003] OJ L16/44, 25 November 2003 [EU Long Term Residents Directive].

    [19] Ibid.

    [20] Ibid.

    [21] Ibid, art 4 (3).

    [22] EU Blue Card Directive, supra note 1, art 16.

    [23] EU Long Term Residents Directive, supra note 18.

    [24] Ibid, art 12.

    [25] Ibid, art 8 & 9

    [26] EU Blue Card Directive, supra note 1.

    [27] Ibid, art 9.

    [28] EU Long Term Residents Directive, supra note 18.

    [29] Ibid, art 11 (2)-(5)

    [30] Ibid, art 14 & 15.

    [31] Council Directive 2003/86/EC on the right to family reunification, [2003] OJ L 251/12, 22 September 2003.

    [32] Ibid, art 13.

    Printed by Policy Center for the Immigration Policy Center. Reprinted with permission


    About The Author

    Li Tian is a graduate student in Law at the University of Western Ontario in London, Ontario and works at Ed Corrigan Law Office.


    Policy Center Edward C. Corrigan is a lawyer certified as a Specialist in Citizenship and Immigration Law and Immigration and Refugee Protection by the Law Society of Upper Canada in London, Ontario, Canada. He can be reached at corriganlaw@edcorrigan.ca or at (519) 439-4015.


    The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.

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      Immigration Judges’ Union Fights for Judicial Independence by Karolina Walters The National Association of Immigration Judges (NAIJ), the union that represents the nation’s immigration judges, is challenging the government’s decision to remove an immigration judge from a well-known case and replace him with a judge who immediately ordered the immigrant in the case deported. NAIJ’s grievance addresses the treatment of one immigration judge, but its resolution will have implications for judicial independence throughout the entire immigration court system. The grievance was filed on behalf of Philadelphia-based immigration judge Steven A. Morley, who was presiding over the case of Mr. Reynaldo Castro-Tum. Castro-Tum’s case rose to national importance earlier this year when Attorney General Jeff Sessions chose to refer the case to himself to reconsider the Board of Immigration Appeals’ previous decision in the case. In reconsidering the decision, Sessions effectively eliminated judges’ use of administrative closure, a docket management tool. Sessions sent Castro-Tum’s case back to Judge Morley, noting that the immigration court order Castro-Tum removed if he did not appear at his next hearing. Castro-Tum did not appear at the next hearing. However, Judge Morley continued the case to resolve whether Castro-Tum received adequate notice of the hearing. Due process requires, at a minimum, that an individual be given notice of proceedings and an opportunity to be heard by a judge. But before the next hearing could take place, the Executive Office for Immigration Review (EOIR) replaced Judge Morley with an Assistant Chief Immigration Judge who ordered Castro-Tum removed when he did not appear at court again. In their grievance, NAIJ asserts that the decision to remove Judge Morley from Castro-Tum’s case and reassign many other cases from his docket resulted in unacceptable interference with judicial independence. The grievance specifically claims that EOIR’s actions violate immigration judges’ authority under the regulations to exerci...
      08-17-2018, 11:12 AM
    • Article: Indirect Refoulement: Why the US Cannot Create a Safe Third Country Agreement with Mexico By Sophia Genovese
      ImmigrationDaily
      Indirect Refoulement: Why the US Cannot Create a Safe Third Country Agreement with Mexico by Sophia Genovese The Trump Administration is seeking to create and implement a safe third country agreement with Mexico . Under this agreement, asylum seekers arriving at the US border who have travelled through Mexico would be denied the ability to file their asylum claims in the US. Such an agreement would trample on the rights of asylum-seekers, violating both international and US asylum law. In particular, the US would be violating the international principle of non-refoulement , which provides that no State “shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his [or her] life or freedom would be threatened,” where Mexico has a proven track record of being anything but safe for asylum seekers . The US has also codified Article 33(1) of the Refugee Convention into Section 208(a)(2)(A) of the Immigration and Nationality Act (INA) which provides that it will not return an asylum seeker to his or her country of origin, but may, at the determination of the Attorney General, remove the asylum seeker to a “safe third country… where the [asylum seeker] would have access to a full and fair procedure for determining a claim to asylum or equivalent temporary protection.” Although Mexican officials have not yet indicated whether they would sign a safe third country agreement with the US, asylum advocates should proactively seek to prevent such a devastating policy with a country that lacks adequate asylum protections. As reported by Human Rights First and Amnesty International , 75 percent of asylum seekers apprehended and detained by the National Institute of Migration (INM), the Mexican immigration enforcement agency, were not informed of their right to seek asylum. Even if asylum seekers are able to make their claims, only 30% of the asylum proceedings are ever concluded , and even fewer are granted, leaving many bona fide asylum seekers stranded without a resolution. The treatment of unaccompanied minors’ asylum claims in Mexico are even more dismal. Of the 35,000 minors apprehended by the INM in the first half of 2016, only 138 were able to apply for asylum , of which only 77 were granted protection. Beyond the failing asylum system in Mexico, asylum seekers are also in extreme danger of kidnapping, murder, rape, trafficking, and other crimes by INM officers and civilians. A safe third country agreement with Mexico would violate the United States’ international obligations under the 1967 Optional Protocol to the Refugee Convention, to which we are a signatory, which adopts by incorporation the obligations outlined in the 1951 Refugee Convention, to which the US is not a signatory. Take the example of an asylum-seeker, Mrs. H, who is fleeing politically-motivated violence in Honduras. Her husband, Mr. H, was a vocal political activist who opposed the National Party and members of the Honduran government. Mr. H began to receive death threats due to his political beliefs and reported such threats to the authorities. The authorities, however, di...
      08-16-2018, 02:32 PM
    • Article: Flawed Statistics Undermine USCIS/ICE/SEVP’s Restriction of D/S for Unlawful Presence By Eugene Goldstein, Esq.
      ImmigrationDaily

      Flawed Statistics Undermine USCIS/ICE/SEVP’s Restriction of D/S for Unlawful Presence

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      On August 9, 2018 USCIS published a “Policy Memorandum” restricting the 20-year-old calculation of Duration of Status (D/S) for F-1, J-1 and M-1 entrants (and their derivative families). https://www.uscis.gov/sites/default/...immigrants.pdf

      USCIS also published an announcement (hereinafter “announcement”) “USCIS Issues Revised Guidance on Unlawful Presence for Students and Exchange Visitors https://www.uscis.gov/news/uscis-iss...hange-visitors , and a general discussion “Unlawful Presence and Bars to Admissibility” ...

      08-15-2018, 12:57 PM
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