Feature
New rules will penalise employers of undeclared workers
Immigration - 19-02-2009 - 15:48
Equal rights for all: The sanctions directive seeks labour equality
The European Parliament has adopted new measures to fight illegal immigration. The "sanctions directive" lays down standard penalties, from fines to criminal law prosecutions on employers breaking the rules. It seeks to discourage clandestine working procedures, while protecting illegal immigrants.
The "sanctions directive" will complement other measures, such as the “return directive” and the “blue card” directive, with the overall aim being to prevent illegal immigration and encourage legal migration.
The legislation has been adopted under the co-decision procedure between Parliament and Council, so MEPs had an equal say with the ministers of the Member States. A compromise agreement was reached with the Council ahead of the plenary vote, making a first-reading agreement possible.
During the debate on 3 February, Italian socialist and rapporteur Mr Claudio Fava said: "at the beginning, the rationale was to fight only against illegal immigrants. At the risk of punishing them twice. But we managed to understand our logic".
During the press conference (after the amendments vote on 4 February) Mr Fava explained that the directive only covers illegal immigrants from countries outside the EU, and that legal workers are also exploited. But this is an issue decided on a national level. Fava gave the example of a young Romanian tomato picker, working under slave-like conditions he would not have the same protection as the picker next to him from a non-EU country.
MEPs adopted the legislation on 19 February and includes a declaration providing reassurance that this directive will not prevent further legislation on subcontractors.
The legislation still has to be formally approved by EU ministers and should become law in 2011.
Sommaire du dossier :
REF.: 20090202FCS47946
MEPs adopt legislative resolution to crackdown on employers of illegal immigrants
Claudio Fava addresses the House 3 February
Parliament adopted the legislative resolution on the crackdown on employers of illegal immigrants Thursday, following the vote on the amendments in Strasbourg on 4 February. At the time, MEPs decided to postpone the final vote at the request of the rapporteur Claudio FAVA (PES, IT) to allow the addition of a declaration providing reassurance that this directive will not prevent further legislation on subcontractors.
Criminalising the employer, not the migrant
Between 4.5 and 8 million illegal immigrants work in the construction, farming, hotel and other sectors in the EU. One of the factors encouraging illegal immigration into the EU is the possibility of finding work. This legislation aims to reduce that pull factor by targeting the employment of third-country nationals who are illegally staying in the EU.
The Commission’s draft legislation is supposed to complement other measures, such as the “return directive” and the “blue card” directive, the overall aim being to combat illegal immigration more firmly while encouraging legal immigration. 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.
Criminal law penalties in the most serious cases
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.
Automatic recovery of unpaid wages
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 must 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 employment relationship will be assumed to have lasted at least three months unless the employer or worker supplies proof to the contrary. MEPs demanded that the procedures necessary for the employee to recover the unpaid wages must be automatic, without any need for the employee to take action.
MEPs successfully argued that Member States should establish lower financial penalties for people using clandestine immigrants as domestic staff, provided the working conditions are not exploitative.
Grievance procedure
Parliament also wants Member States to set up mechanisms to enable illegal immigrants to lodge complaints. Third parties designated by Member States, such as voluntary bodies or trade unions, should 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.
Firms that use subcontractors to be liable
If the guilty employer is a subcontractor, the contracting firm must also be held liable, and even fully liable if it turns out that the contracting employer knew the subcontractor was acting illegally. A list of employers who have infringed the directive may be made public – another successful demand by MEPs.
Effective and sufficient inspections
The Member States are asked to conduct effective inspections sufficiently frequently to check on the employment of non-EU nationals in an irregular situation. 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.
UK not opting-in
The UK government supports the general purpose of the draft directive as part of the wider fight against illegal immigration. Nevertheless, it has a number of concerns and has not opted-in to this directive. The UK government believes there is no legal basis or Community competence for criminal sanctions in this directive, nor would we support measures which could create a pull factor for illegal immigrants (e.g: back payments, facilitation of complaints procedures and any associated delays in returning illegal migrants
Between 4.5 and 8 million illegal immigrants work in the construction, farming, hotel and other sectors in the EU. One of the factors encouraging illegal immigration into the EU is the possibility of finding work. This legislation aims to reduce that pull factor by targeting the employment of third-country nationals who are illegally staying in the EU.
The Commission’s draft legislation is supposed to complement other measures, such as the “return directive” and the “blue card” directive, the overall aim being to combat illegal immigration more firmly while encouraging legal immigration. 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.
Criminal law penalties in the most serious cases
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.
Automatic recovery of unpaid wages
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 must 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 employment relationship will be assumed to have lasted at least three months unless the employer or worker supplies proof to the contrary. MEPs demanded that the procedures necessary for the employee to recover the unpaid wages must be automatic, without any need for the employee to take action.
MEPs successfully argued that Member States should establish lower financial penalties for people using clandestine immigrants as domestic staff, provided the working conditions are not exploitative.
Grievance procedure
Parliament also wants Member States to set up mechanisms to enable illegal immigrants to lodge complaints. Third parties designated by Member States, such as voluntary bodies or trade unions, should 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.
Firms that use subcontractors to be liable
If the guilty employer is a subcontractor, the contracting firm must also be held liable, and even fully liable if it turns out that the contracting employer knew the subcontractor was acting illegally. A list of employers who have infringed the directive may be made public – another successful demand by MEPs.
Effective and sufficient inspections
The Member States are asked to conduct effective inspections sufficiently frequently to check on the employment of non-EU nationals in an irregular situation. 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.
UK not opting-in
The UK government supports the general purpose of the draft directive as part of the wider fight against illegal immigration. Nevertheless, it has a number of concerns and has not opted-in to this directive. The UK government believes there is no legal basis or Community competence for criminal sanctions in this directive, nor would we support measures which could create a pull factor for illegal immigrants (e.g: back payments, facilitation of complaints procedures and any associated delays in returning illegal migrants
MEPs debate sanctions against employers of undeclared workers
Cleaning is one job that may be concerned: ©Belga/Le Republicain Lorrain/Riedinger Philippe
Tuesday morning MEPs will debate new legislation that will punish employers who employ illegal immigrants. Fines, paying back wages and even criminal sanctions are proposed in the directive. It is estimated that 4-8 million non-EU citizens work across the 27-member bloc. They often work as builders, farm labourers, cleaners and in the hotel trade.
The practicality of any steps is likely to be a key concern. European trade unions have already raised concerns and business representatives are worried it will mean more red tape. Watch the debate live online from 0930 CET on Tuesday from the Parliament's session in Strasbourg using the first link below.
Unscrupulous employers in firing line
In a public hearing on the directive held last July, MEPs called for rules to help tackle unscrupulous employers, many of whom hold their workers in slavelike conditions. Italian Socialist Claudio Fava drafted the report on the legislation. He said that "migrants are often subjected to terrible exploitation, sometimes even treated as slaves".
It is also hoped that the measures will help tackle people trafficking and deal with some of the criminal gangs involved.
The proposed legislation on "Sanctions against employers of illegally staying third country nationals" is part of a wider package of measures including the "return directive" and the "blue card" scheme to encourage legal immigration.
With the economic crisis, the labour market, both legal and illegal, is likely to get a lot more competitive. A recent report by the International Labour Organisation has concluded that total global unemployment could increase by 18-30 million this year due to the recession.
Employers/Trade Unions: where do they stand?
Marcus Schwenke from BusinessEurope, the Confederation of European Business, told us European employers supported measures to reduce illegal immigration: "Black-market labour represents 'unfair competition' for honest businesses."
However, he said: "We have strong concerns because the proposal is disproportionate: It puts a heavy administrative burden on companies and includes too severe penalties."
Undeclared workers
- 4-8 million illegal third-country nationals in the EU
- Around 900 000 illegal immigrants enter the EU each year
- Mainly work in construction, agriculture, services
The legislation has been greeted with caution by trade unions. Catelene Passchier for the European Trade Union Confederation (ETUC) said, "taking measures against employers sounds nice but experience in the US has shown that it drives a lot of the illegal work further underground; the nice employers become nicer and the nasty ones nastier".
Employer or subcontractor: who will be responsible?
One of ETUC's main concerns is over subcontractors. "We know that illegal workers are mostly employed by agencies and intermediaries and by subcontractors and not by big employers themselves; they don't burn their fingers by employing illegal workers," Ms Passchier said.
MEPs have stipulated that employers should be liable if a contractor is acting illegally but in practice "long subcontracting chains and putting letterbox companies" make this unenforceable, she said.
Mr Schwenke also raised the issue of subcontractors: "We strongly oppose the foreseen subsidiary liability, because companies are in practice not in the position to control the compliance of their subcontractors."
Illegal immigrants at work: MEPs back fines for employers
Strawberry fields forever? A legal migrant worker in Nea Manolada, Greece ©BELGA_AFP PHOTO_Yiannis Liakos March 2008
There are an estimated 4-8 million immigrants working illegally in the European Union. They often do jobs many Europeans are unwilling to do and supplement an ageing workforce. MEPs on the Civil Liberties Committee voted Tuesday afternoon to back a proposed directive that aims to stop the illegal exploitation of workers using fines and criminal measures on employers.
The lure of Europe for many immigrants is that it offers the prospect of either a better life, or a way of making money to send back to their families.
Each year the number of illegal migrants swells by up to half a million. Many do not make it. The rough seas that divide Europe and Africa have claimed thousands of lives.
Builders, cleaners, waiters
Those who do come usually end up working as builders, fruit pickers, cleaners or in the hotel trade.
In these trades many are exploited by unethical employers who know the migrants daren't go to the police for fear of deportation. Most work without any pension provision or health insurance. Others end up in the arms of gangs who forced them into labour or even prostitution.
The man who drafted parliament's opinion on the directive is Italian Socialist MEP Claudio Fava. He explained that: "Illegal immigrants help meet the needs of some unscrupulous employers who are willing to take advantage of workers prepared to undertake what are mostly low-skilled and low paid jobs."
Fines for employers - not immigrants
Fines and possible criminal penalties are among the sanctions envisaged by the directive. They would apply to employers - not the illegal immigrants. The costs of returning immigrants to their original country or the repayment of outstanding taxes are two measures proposed.
Under the proposals the onus would fall on employers to inspect the documents of their workers to ensure they are legal. A list of employers who flout any new rules should be made public according to MEPs.
Sicilian born Claudio Fava would also like to see reductions in penalties when employers are private individuals. MEPs supported this unless such working conditions amount to exploitation. For example people who may be employing a cleaning lady they pay in cash but who does not have the legal right to be in the country. The original European Commission proposal wanted stiffer penalties for such arrangements.
The Commission proposal in May 2007 called for 10% of all businesses to be inspected although the 51 year old Fava would like that cut to reduce administration costs.