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Impacts on Undocumented Migrant Workers' Rights in Four EU Countries

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Impacts on Undocumented Migrant Workers' Rights in Four EU Countries PICUM POSITION PAPER EMPLOYERS’ SANCTIONS: IMPACTS ON UNDOCUMENTED MIGRANT WORKERS’ RIGHTS IN FOUR EU COUNTRIES APRIL 2015 PICUM POSITION PAPER The Platform for International Cooperation on Undocumented Migrants (PICUM) was founded in 2001 as an initiative of grassroots organisations. Now representing a network of more than 140 organisations and 100 individual advocates working with undocumented migrants in 33 countries, primarily in Europe as well as in other world regions, PICUM has built a comprehensive evidence base regarding the gap between international human rights law and the policies and practices existing at national level. With over ten years of evidence, experience and expertise on undocumented migrants, PICUM promotes recognition of their fundamental rights, providing an essential link between local realities and the debates at policy level. This position paper analyses the practical impacts of the European Union Employers’ Sanctions Directive, focusing on specific provisions of the directive aimed at protecting undocumented workers’ rights: availability and accessibility of complaint mechanisms, recuperation of outstanding wages and access to residence permits in Belgium, Czech Republic, Italy and the Netherlands. Report produced by Kadri Soova, Lilana Keith and Michele LeVoy (PICUM) Sincere thanks to Mercedes Miletti, Ashleigh Hayman, PICUM’s working group on labour rights, and all the PICUM members that have contributed to this report. April 2015 This publication was made possible with kind support from: This publication is supported by the European Union Programme for Employment and Social Solidarity - PROGRESS. This programme is implemented by the European Commission. It was established to financially support the implementation of the objectives of the European Union in the employment, social affairs and equal opportunities area, and thereby contribute to the achievement of the Europe 2020 Strategy goals in these fields. See: http://ec.europa.eu/progres. PICUM Platform for International Cooperation on Undocumented Migrants Rue du Congres / Congresstraat 37-41, post box 5 1000 Brussels Belgium Tel: +32/2/210 17 80 Fax: +32/2/210 17 89 [email protected] www.picum.org Design: www.beelzepub.com EMPLOYERS’ SANCTIONS: IMPACTS ON UNDOCUMENTED MIGRANT WORKERS’ RIGHTS IN FOUR EU COUNTRIES TABLE OF CONTENTS EXECUTIVE SUMMARY ........................................................................................................................................................................................................2 1. LABOUR RIGHTS OF UNDOCUMENTED MIGRANT WORKERS IN THE EMPLOYERS’ SANCTIONS DIRECTIVE ............................................................................................................................................4 2. IMPACTS OF THE EMPLOYERS’ SANCTIONS DIRECTIVE................................................................................6 2.1 Complaint mechanisms (Article 13.1) ........................................................................................................................................6 2.2 Outstanding wages (Articles 6.1, 6.2 and 6.3) ..........................................................................................................8 2.3 Residence permits (Article 13.4) .....................................................................................................................................................9 3. CONCLUSIONS ........................................................................................................................................................................................................................ 11 4. RECOMMENDATIONS TO THE EUROPEAN INSTITUTIONS ...................................................................... 12 1 PICUM POSITION PAPER EXECUTIVE SUMMARY The EU Employers’ Sanctions Directive1 entered into input from key member organisations in PICUM’s force in July 2009 as a central component of the network and also representing a sample of EU EU’s migration policy to prevent irregular migration. member states both geographically and in terms The directive establishes sanctions for employers of the labour migration situation – this policy brief who hire undocumented workers in order to curb offers a set of policy recommendations to European irregular employment, which is seen as a “pull institutions. Representing the practical experience of factor” for irregular migration. Prior to the adoption implementation of the directive at member state level, of the directive, civil society organisations and trade this policy brief complements the Communication of unions raised concern2 about the purpose of the the European Commission3 published in May 2014 on directive, finding that the overwhelming majority the application of the directive. of migrant workers would rather be employed in a regular manner, pay taxes and contribute to the The analysis concludes that the adopted regulation social security system, than live outside the legal varies greatly amongst member states, with many system under a constant threat of deportation. They issues remaining concerning the implementation were concerned that the sanctions foreseen in the of the directive at national level, in particular the directive might further deteriorate the situation of safeguards for undocumented workers. these precarious workers. Many NGOs working directly with undocumented This position paper analyses the practical impacts workers observe that employers’ sanctions have of the Employers’ Sanctions Directive, focusing indeed not improved and in some cases have even on specific provisions of the directive aimed at degraded the situation of undocumented workers. protecting undocumented workers’ rights: availability Although the directive foresees mechanisms and accessibility of complaint mechanisms, to protect and enforce the labour rights of recuperation of outstanding wages and access to undocumented workers, they have proved ineffective residence permits. Drawing on the transposition of or are nonexistent. Many procedural, financial and the directive in Belgium, Czech Republic, Italy and administrative barriers remain in the application of the Netherlands - four countries chosen based on specific provisions related to workers’ rights. For 1 Directive 2009/52/EC of the European parliament and of the Council of 18 June 2009 providing for minimum standards on sanctions and measures against employers of illegally staying third-country nationals, http://eur-lex.europa.eu/ LexUriServ/LexUriServ.do?uri=CELEX:32009L0052:EN:NOT 2 Joint Comments of ETUC, PICUM and Solidar on Expected Commission Proposals to Fight ‘Illegal’ Employment and Exploitative Working Conditions, 2007. http://picum.org/picum.org/uploads/file_/joint_comments_ETUC_PICUM_ SOLIDAR_2604507_EN_final.pdf 3 Communication from the Commission to the European Parliament and the Council on the application of Directive 2009/52/EC of 18 June 2009 providing for minimum standards on sanctions and measures against employers of illegally staying third country nationals, COM(2014) 286 final.http://www.europarl.europa.eu/meetdocs/2014_2019/documents/ com/com_com%282014%290286_/com_com%282014%290286_en.pdf 2 EMPLOYERS’ SANCTIONS: IMPACTS ON UNDOCUMENTED MIGRANT WORKERS’ RIGHTS IN FOUR EU COUNTRIES example, the state has failed to put in place binding Based on the information collected from the four obligations to ensure unpaid wages or provide countries, it is doubtful that the aim of the directive residence permits for workers reporting exploitation. - to reduce the demand for irregular work - is being As the directive expects labour inspectors to act achieved, as repercussions for employers remain as the responsible body for “effective complaints very limited and facilitation of complaints insufficient. facilitation” this should mean that undocumented PICUM member organisations report that the workers have the opportunity to safely file complaints sanctions foreseen in the directive do not represent with these officials without fear for repercussions. a real deterrent to employers as the risk of being However, PICUM members in many EU member inspected combined with the financial sanction is in states report that as the police accompany labour most cases much lower than the costs associated inspectors, nearly all contacts result in apprehension with fully declared and formalised work contracts4. on grounds of their migration status and consequent Policy makers should consider if adequate regular deportation even before the undocumented worker employment and residence opportunities for migrant has had a fair chance to defend their labour rights. workers would be more effective policy tools to address the presence of irregular migrants. To this The EU should support member states in ensuring end, this brief concludes with recommendations for better implementation of the directive by creating the EU to establish a more adequate labour migration adequate data collection mechanisms linked to policy through the creation of more entry and stay the enforcement of labour rights in this directive. opportunities for third country migrant workers across Comparative data on how many complaints have skill levels and labour sectors. been lodged should be gathered, as well as data on how many cases compensation was received and how much and how many sanctions were imposed. 4 Ed. K. Slubik, Unprotected: Migrant workers in an irregular situation in Central Europe, 2014, p.112-113. http://interwencjaprawna.pl/en/files/unprotected.pdf
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