The Constitutional Conundrum of Trade Related Skilled Migration into the EU

The EU is currently enticing high-skilled third country nationals to take up work in any of its Member States. This is done in various ways, by including relevant provisions in trade agreements, facilitating intra-corporate transfers, promoting the so-called Blue Card residence permit, as well as concluding Talent Partnerships with countries of origin. Its regulatory approaches towards high-skilled migration thus comprises international trade law, secondary EU law, as well as soft law instruments that are largely framed as development cooperation. The present article explores the constitutional conundrum underlying this specific mix, evaluating to what extent it may ultimately prove successful in attracting high-skilled migration and mobility. In doing so, it addresses the international legal boundaries the EU may not yet have sufficiently taken heed of, in particular the ILO Conventions 97 and 143 on migrant workers’ rights, and the UN Global Compact on Safe, Orderly and Regular Migration. Moving on from the macro- to the meso-level, we next inspect concurrent policies pursued at the national level, engaging in a case study of the Netherlands that digs into the (presumed) residual prerogatives of the Member States. Hereby, it is analysed to which extent forgotten bilateral treaties facilitating (high-skilled) migration, such as the 1956 Dutch American Friendship Treaty, or the even older UK-Dutch Trade and Shipping Treaty of 1837, may still be resorted to in light of current, new and imminent EU law obligations. Finally, in a more succinct inspection at micro-level, we proceed to trace to what extent litigating migrants or their prospective employers are hindered or enabled in the sphere of rights enforcement, especially considering the (non-)availability of direct effect. The overall objectives of this research are threefold. Besides mapping the contemporary regulatory avenues relating to high-skilled migration, highlighting the constitutional dimension and the tensions between EU and national law in the process, we aim to draw attention to the obscure, sometimes even absent mechanisms of legal protection for businesses and migrant workers in this multi-faceted and multi-layered legislative landscape. The article is believed to offer scholars, policy-makers as well as practitioners and courts much food for thought, pointing out routes for improving (access to) rights for businesses and high-skilled migrant workers alike.