The Constitutional Conundrums of Regulating Skilled Migration into the EU

While much attention goes out these days to how the European Union (EU) is busying itself with keeping out unwanted migrants, it is in fact simultaneously attempting to persuade high- and medium -skilled third -country nationals (TCNs) to take up work in its Member States. This is done in various ways, inter alia by including relevant provisions in free trade agreements, facilitating intra-corporate transfers, promoting the Blue Card residence permit, providing stimuli for concluding partnerships with countries of origin, as well as setting up Talent Partnerships. This article examines the constitutional conundrums underlying the chosen mix, analysing in particular how the hierarchy of norms and division of competences play out in realising the envisaged mobility. It also investigates a number of parallel approaches adopted at the national level, with a case study on the Netherlands demonstrating how specific difficulties surround the presumed residual prerogatives of the Member States. Finally, it traces how skilled migrants, or their prospective employers, are encountering hindrances in the sphere of rights enforcement. The analysis culminates in a call for stakeholders to step up their game.