Steve Peers

Determining the employment rights of undocumented migrants is complex. On one hand, granting them full access to employment law protections could incentivize unauthorized migration. On the other hand, applying standard employment laws to all workers, regardless of immigration status, could prevent the exploitation of undocumented migrants and deter employers from hiring them to save money.

The Court of Justice of the European Union (CJEU) addressed this issue in the Tumer case, which focused on the application of the EU Directive on insolvent employers to undocumented migrants. Dutch law prevents undocumented migrants from being classified as “employees” under this Directive, meaning they are ineligible for unpaid wages from a national fund when their employer becomes insolvent. This case challenged that exclusion.

Mr. Tumer, a Turkish citizen, lost his legal residency in the Netherlands following a divorce. Despite this, he continued to reside and work in the country. When his employer went bankrupt, he sought unpaid wages from the Dutch fund established under the insolvent employers Directive but was denied.

Judgment

The CJEU ruled that the legal basis for the insolvent employers Directive applies to all individuals, not just EU citizens. While the EU’s long-term residence Directive promotes equal treatment for long-term resident third-country nationals, it doesn’t prevent other EU laws from granting rights to third-country nationals, including undocumented migrants, to achieve specific objectives.

The Court acknowledged that the Directive allows national law to define “employee.” However, this discretion is limited by provisions that prevent the exclusion of certain worker categories, such as part-time or fixed-term employees. Since the Directive doesn’t explicitly exclude third-country nationals or allow Member States to do so, and because Dutch civil law considers anyone with an employment contract an “employee,” the CJEU reasoned that denying unpaid wages based on immigration status contradicts the Directive’s social objective of protecting workers.

Comments

This ruling is significant as it confirms that EU employment law generally applies to all individuals, including undocumented migrants. The Court’s interpretation clarifies that the existence of specific competence to regulate the employment conditions of third-country nationals doesn’t limit the personal scope of other EU employment laws.

This implies that other EU laws, like consumer protection laws, likely apply to third-country nationals as well. However, the Court highlighted that EU legislation could include specific conditions for its application to third-country nationals.

The Tumer case shows that EU legislation should be interpreted broadly in terms of personal scope unless it explicitly excludes third-country nationals or grants Member States the authority to do so. Excluding any individuals from the protections of EU law, particularly in areas like employment or consumer protection, would contradict its social objectives. In contrast, laws concerning EU citizenship and free movement of persons are explicitly limited to EU citizens and their families.

Therefore, this judgment empowers undocumented migrants and other third-country nationals to invoke EU employment law and many provisions within other areas of EU law. However, it does not automatically grant them the right to invoke purely national employment laws in areas not directly covered by EU law, such as standard wage disputes.

However, EU immigration or asylum law might require equal treatment regarding other aspects of national law. While the Court referenced the long-term residents’ Directive, other EU measures, such as the 2009 Directive on employers of undocumented migrants, address equal treatment and ensure fair wages for undocumented migrants. The Tumer judgment aligns with the 2009 Directive’s goal of preventing employer exploitation of undocumented migrants.

The Tumer judgment provides recourse for unpaid wages from national funds established under the insolvent employers Directive, even for undocumented migrants. However, it doesn’t address situations where insolvent employers haven’t paid their undocumented employees standard wages or contributed to the national fund. This remains an open question for the CJEU to address in future cases.

Barnard & Peers: chapter 20, chapter 26