Steve Peers
The EU struggled to create legislation regarding migrant workers from outside the EU. Member States finally agreed on laws focused on higher-income migrants: the Blue Card Directive and the Directive on intra-corporate transferees. The EU also established general rules for admitting labor migrants with the single permit Directive.
In a new development, the EU introduced rules for lower-paid seasonal workers last year. This group is particularly susceptible to exploitation. This raises the question of whether the recent Directive provides adequate protection from these risks.
Content of the Directive
Member States must implement this Directive by September 30, 2016. The UK, Ireland, and Denmark opted out. It applies to individuals residing outside the EU who seek entry as seasonal workers, or those already admitted under the Directive’s terms, for periods less than or exceeding three months. For stays under three months, the EU’s borders and visas legislation applies. The Directive doesn’t cover workers typically employed in other Member States and “posted” to work in a second Member State, non-EU family members of EU citizens, or non-EU citizens covered by agreements granting free movement rights (EEA or EU/Swiss treaties).
A “seasonal worker” is defined as someone residing outside the EU, temporarily living in the EU for “an activity dependent on the passing of the seasons” under a fixed-term contract with an employer in a Member State. A “seasonal activity” is an “activity tied to a specific time of year due to a recurring event or pattern of events linked to seasonal conditions requiring labor levels significantly higher than usual operations.” Member States define the relevant sectors; the preamble mentions tourism, agriculture, and horticulture.
While Member States can set higher standards for certain areas (procedures, accommodation, worker rights, and complaint mechanisms), the Directive sets harmonized rules. They cannot change the grounds for admission or rules on the duration of stay and re-entry.
Admission criteria are strict. Applications must include: a valid work contract or job offer with complete details; a valid travel document (potentially covering the entire work period); proof of sickness insurance (unless provided in the contract); and evidence of accommodation as defined by the Directive. Member States must confirm the seasonal worker has enough resources to avoid relying on social assistance, is not a threat to public policy, security, or health, and intends to leave upon authorization expiry.
Applications are rejected if conditions aren’t met or if documents are fraudulent. Rejections also occur if an employer has prior sanctions for “undeclared work and/or illegal employment,” is being dissolved or inactive, or has breached the Directive.
Optional grounds for refusal include: prioritizing citizens, other EU citizens, or legally residing third-country nationals in the labor market; applying national rules on third-country national admissions; employer violations of employment law; using seasonal work to replace full-time jobs; or prior immigration law violations by the applicant. Similar provisions apply to withdrawing work authorization, including if the worker seeks international protection.
The admission process mandates providing information on entry and residence conditions, rights, and the process itself. Member States decide if the applicant or employer applies, and a single application covers both work and residence status. Applicants meeting criteria and not subject to refusal grounds receive an EU standard visa or residence permit.
Seasonal workers have a maximum stay of five to nine months per calendar year before returning to their home country. As the Directive solely regulates admission and stay, Member States can permit longer stays on other grounds.
Within the time limit, seasonal workers can change employers or extend their stay once, if they meet the admission criteria and don’t trigger refusal grounds. This prevents tying workers to a single employer, minimizing abuse. Member States can permit further extensions or employer changes but can refuse extensions to workers seeking international protection.
The Directive eases re-entry for seasonal workers admitted at least once in the past five years if they complied with immigration laws. This includes simplified applications, expedited procedures, prioritization, or issuing multiple permits, incentivizing compliance.
Member States must sanction employers violating the Directive, including potential bans on hiring seasonal workers. If a permit is withdrawn due to employer misconduct, compensation is required for work done or that would have been done. Specific rules address subcontractor liability.
Procedural safeguards include: written decisions within 90 days; rules for authorization renewals; opportunities to provide information within deadlines; and written rejections/withdrawals/non-renewals open to legal challenges, stating reasons, redress options, and time limits. Member States can charge reasonable fees and require employers to cover travel and insurance. Accommodation must meet “adequate” standards, with reasonable rent, a contract, and employer-guaranteed health and safety compliance.
Seasonal workers have the right to enter, stay, and work in the Member State. They have equal treatment with nationals regarding employment terms, association freedom, back payments, social security, pension transfers, access to public goods and services (excluding housing), employment advice (for seasonal work), education, diploma recognition, and tax benefits. However, equal treatment may be limited regarding family, unemployment, and tax benefits and education. Member States can still withdraw or refuse to renew permits. Finally, Member States must monitor, assess, inspect, and facilitate worker complaints filed directly or through third parties.
Comments
The Directive aims to regulate seasonal worker admission, boosting EU economic competitiveness and linking migration with development, while ensuring decent work and living conditions and preventing overstaying. It has made strides, particularly in guaranteeing equal treatment, decent accommodation, punishing abusive employers, and enforcing these rules.
The Directive improved during the legislative process, especially regarding monitoring and penalizing problematic employers, accommodation, equal treatment (expanded scope), employee costs, and employer remedies. NGOs significantly contributed by raising these issues. The EU could use this Directive as a model to address exploitation of other vulnerable migrant groups, such as domestic workers facing heightened risks of enslavement or trafficking.
However, limitations remain on Member States’ willingness. Exceptions to equal treatment exist, and some provisions on problematic employers and cost burdens are optional. The right to change employers has conditions, and only one change might be permitted. While enforcement provisions are stronger than usual in EU labor migration laws, actual resource allocation remains to be seen.
Limited to those not yet in the territory, the Directive cannot help unauthorized yet unreturnable individuals in legal limbo. It allows Member States to deny even meager incomes from seasonal work to asylum seekers. While potentially effective, it might exemplify addressing easier problems while avoiding more complex ones.
*This post is based on my ongoing research for the 4th edition of EU Justice and Home Affairs Law (forthcoming, OUP)
Photo credit: Globalpost.com
Barnard & Peers: chapter 26