Undeclared work is a factor in attracting illegal immigrants, in the EU as elsewhere. Non-EU nationals living clandestinely in Europe often find work in the construction, farming and horticulture, domestic work and hotels. They usually take the least steady jobs or do seasonal work, in very poor conditions and without insurance cover or social benefits.

 

Some employers or subcontractors thereby have access to cheap labour and keep in touch with networks of people smugglers who take care of transport or forging documents.  The system sometimes results in working conditions bordering on slavery. Undeclared and under-paid work also generates no tax revenue for local authorities, pushes down wages in all the sectors concerned and creates unfair competition with other firms.

 

The problem is hard to quantify: figures provided by 21 Member States point to a total of around 893,000 to 923,000 illegal immigrants entering the EU each year.  Some are deported, others are regularised, while seasonal workers leave once their work is finished.

 

Some Member States are more affected than others, because of their geographical location or the scale of the undeclared economy.  Nearly all Member States already have a system of penalties on employers of illegal immigrants or have taken preventive measures.  Nineteen Member States impose penalties under criminal law. However, these laws are applied unevenly and Member States are tackling in a somewhat disorderly fashion a problem which is on a continental scale: with the scrapping of internal borders, the EU's external frontiers are shared by all countries in the Union, making illegal immigration a European issue.

The draft directive, put forward by the European Commission, seeks to penalise employers of illegal immigrants while giving the immigrants legal terms of pay and employment.  MEPs are demanding criminal law sanctions in the most serious cases and want to make companies responsible for the actions of their subcontractors.

 

 

The “sanctions directive" would introduce minimum penalties at European level against employers of illegal immigrants.  Employers could be fined, forced to pay wages in arrears at legal levels or even banned for up to five years from bidding for public sector contracts or from receiving state aid – whether national or European.

 
Fines…

 
An employer who is found guilty must also refund any state aid received the previous year and pay a graduated fine according to the number of illegal immigrants employed.  In addition, he will have to pay a sum equal to the amount of taxes and other levies he would have paid if the worker had been employed legally and, where applicable, the cost of returning the migrant.

 

 

The directive would also lay down criminal law penalties against employers for repeat offences, where a large number of people in an irregular situation are employed, where the working conditions are exploitative, where the employee is a victim of human trafficking and this is known to the employer, or if the employee is a minor.

The employment relationship will be assumed to have lasted at least three months unless the employer or worker supplies proof to the contrary. 

 

 
The Member States will have to conduct "effective and adequate inspections" to control employment of illegally staying third-country nationals. They must also require employers to check that their non-EU employees have a valid residence permit and inform a national authority of any new recruitment of non-EU nationals.

Within Parliament the work on the directive has been shared between two committees: the Civil Liberties Committee and the Employment Committee.  Claudio Fava (PES, IT), the MEP responsible, negotiated an agreement with the Council presidency.

 

At the request of MEPs, Member States will have to lay down rules for granting short-stay residence permits if the workers are minors or if serious exploitation or human trafficking has taken place.  Such permits would be renewable.  Member States will be free to apply, on the one hand, more generous laws on residence permits and on the other, stricter rules on sanctions against employers.

 

If the guilty employer is a subcontractor, the contracting firm will also be held responsible. As MEPs wished, the legislation now states that the contracting firm will be fully liable if it is shown to have known that the subcontractor was acting illegally. 

 

Also as a result of pressure from MEPs, Member States will have to establish lower financial penalties for people using clandestine immigrants as domestic staff, provided the working conditions are not exploitative.

 

Another point achieved by Parliament is that Member States must set up grievance procedures for the illegal immigrants. Third parties designated by Member States, such as voluntary bodies or trade unions, will be allowed to report a guilty employer without running the risk of being subsequently taken to court for assisting someone to stay in the country illegally.  Irregular immigrants will, if they cooperate with the legal action against their employer, be able to get a temporary residence permit.

 

Agencies providing temporary workers will also be covered by the directive, at the request of MEPs.

 

Finally, another successful demand by MEPs was that a list of employers who have infringed the directive may be made public.