On Tuesday Civil Liberties Committee MEPs adopted a co-decision report drafted by Claudio Fava (PES, IT) in co-operation with the Employment Committee, in a vote that will guide negotiations with the Council. Talks between the rapporteur and the Council Presidency have already begun, with the aim of reaching a first-reading agreement by the end of the year.
Penalties to be paid by the employer, not the migrant
The proposed directive complements other initiatives - such as the "return" and "blue card" directives - with a view to combating illegal immigration whilst facilitating legal immigration. The "sanctions" directive would introduce minimum penalties at European level against employers of illegal immigrants, including fines, the repayment of outstanding wages and legally required contributions, or disqualification, for up to five years, from public procurement or aids, whether national or European.
The text also provides for criminal sanctions in cases where employers re-offend, many people are illegally employed, working conditions are characterized by exploitation, violence or intimidation, or the worker is a victim of human trafficking or is under age.
Automatic recovery of dues
Offending employers will moreover be required to repay aids granted the previous year, and a fine that increases in line with the number of illegal immigrants employed. They will also have to pay a sum equal to the total amount of the taxes and contributions that they would have paid if the third country national had been employed legally, and, where appropriate, the cost of returning the migrant. Member States may nonetheless decide to grant employers and workers sufficient time to make a working relationship legal under national law.
A working relationship will be presumed to have lasted at least six months, and the burden of proof will rest with the employer. The procedures necessary for the worker to recover outstanding pay must be automatic, and not require any intervention on his or her part, say MEPs.
Member States must provide for reduced financial penalties for people employing illegal immigrants as household staff, provided that their working conditions do not amount to exploitation.
Furthermore, Member States must put in place mechanisms to enable illegal immigrants to file complaints. Third parties, such as associations, non-governmental organisations, or trade unions should be able to denounce offending employers, without subsequently facing legal proceedings for having assisted an illegal stay.
Taking responsibility for sub-contractors
If the offending employer is a sub-contractor, then the person from whom he holds the contract will also be deemed liable. This person may even be deemed wholly liable if it is proven that he or she was aware of the sub-contractor's illegal practices. A list of employers who have infringed the directive should be made public, say MEPs.
Enough effective inspections
Member States are urged to conduct "enough effective inspections" to check on the employment of illegally-staying third country nationals. Furthermore, they must require employers to check that their third country national employees are legally entitled to stay. Third country nationals who co-operation with a proceedings against their employer must be granted a temporary residence permit, linked to the corresponding procedure.