Professor Steve Peers, Royal Holloway University of London
*Text updated Dec 22 2023, to add a link to the agreed text of the Directive, and April 12 2024, on its final adoption
Photo credit: Lasse Fuss, via Wikimedia commons
While the recent agreement on asylum legislation has garnered significant attention, an equally important development occurred with the EU Member States and European Parliament reaching an agreement on amending the ‘single permit Directive,’ a law governing non-EU migrant workers. In contrast to the asylum deal, which appears to weaken existing standards, the revised single permit Directive introduces positive, albeit limited, improvements for migrant worker protections. [Update: the final version of the revised law was officially approved in April 2024.]
Background
The existing single permit law, established in 2011, doesn’t dictate the number of non-EU migrant workers allowed into individual Member States, nor does it set specific criteria for their admission. Instead, it focuses on the procedural aspects of applying for work within the EU and ensures equal treatment for those workers. It’s worth noting that separate EU laws address specific migrant worker categories, providing more detailed admission guidelines. Although there’s limited legal precedent, the UK, Ireland, and Denmark opted out of the 2011 law, though it now impacts UK citizens seeking work in the EU post-Brexit.
In April 2022, the Commission, believing the law needed modernization to both simplify the admission process and bolster equal treatment, proposed replacing it with an updated version. Alongside this, they proposed replacing the EU law concerning non-EU long-term residents. The latter proposal is facing lengthier negotiations.
Both the European Parliament and the Council presented their positions on the single permit proposal earlier this year and have now finalized negotiations. As before, Ireland and Denmark opted out, and the revised law will apply to UK citizens seeking work in the EU. This new law (the ‘2024 Directive’) is expected to be formally adopted in the spring of 2024, giving Member States two years to align their national laws. The following sections outline the current law, the changes introduced by the 2024 version, and the rejected amendment proposals.
Scope of the single permit law
Beyond non-EU citizens granted entry for work, who are covered by both the procedural and equal treatment aspects of the Directive, the equal treatment provisions also extend to non-EU citizens granted entry for other reasons but who are permitted to work. However, several non-EU citizen groups are excluded, usually because they fall under more specific regulations outlined in other EU laws.
Member States can choose not to apply the procedural part of the Directive (though not the equal treatment part) in specific situations. The most significant change in the 2024 version is the expanded scope of the equal treatment aspect, which will now encompass beneficiaries of national protection (different from EU-harmonized asylum law) if their national law permits them to work. This signifies a compromise among the involved parties.
The single permit process
The 2011 law defines a single permit as a combined work and residence permit issued based on a single application. The 2024 law will make this process more flexible. While maintaining the current 90-day decision-making window for single permit applications, the 2024 law mandates this timeframe also encompasses the time needed for labor market evaluation. However, the Council rejected the Commission’s proposal to further streamline this process.
The existing procedural rights, such as understanding the reasons for application rejections and the ability to legally challenge these decisions, are maintained and even strengthened in the 2024 version. Furthermore, the provisions concerning access to information will be expanded.
Employment rights
The 2011 Directive outlines basic rights related to residing and working in the country once the single permit is issued. The Commission aimed to enhance this by incorporating two crucial rights for non-EU workers: the right to change employers and protection in case of unemployment. In both areas, the final agreement represents a compromise between the Council’s more conservative approach and the Parliament’s more progressive stance.
Changing employer
Currently, the decision to permit job changes for non-EU workers rests with national law. The Commission’s proposal aimed to give workers more freedom to change employers. However, the Council advocated for retaining more control. The final 2024 directive strikes a middle ground, permitting job changes after a set period while also allowing for exceptions under specific circumstances.
Unemployment
The Commission’s proposal sought to allow a grace period for unemployed workers and facilitate their search for new employment. While the Council aimed to limit this period, the Parliament sought a more generous timeframe. The 2024 directive’s final compromise establishes a tiered unemployment period, gradually increasing with the duration of a worker’s stay.
Equal treatment
As previously mentioned, the Directive’s equal treatment provisions have a broader scope. There’s a wide range of equal treatment rights coupled with a similarly comprehensive list of exceptions. Notably, the final text of the 2024 directive includes adjustments to the equal treatment rights related to housing and work.
Furthermore, there are new provisions targeting unethical employers. These include measures for public sector monitoring, facilitating individual worker redress against such employers.
Comments
The Council’s willingness to incorporate several proposals from both the Commission and the European Parliament demonstrates a clear intent to improve the situation for non-EU migrant workers. While some credit the social democratic party within the Parliament for these advancements, it’s crucial to acknowledge the broader context. Despite advocating for migrant worker rights, the same social democrats (and liberals) seemingly conceded ground on asylum seeker and refugee protections during the asylum negotiations.
The key changes in the revised law are noteworthy. The main points where the Council pushed back centered around visas, particularly concerning the timeline for processing visa applications and ensuring equal treatment for visa holders in terms of family benefits. The Parliament’s main achievements included securing a reduced timeframe for application decisions and an extended stay for workers subjected to particularly exploitative conditions.
Interestingly, a recurring theme in the amendments is the focus on safeguarding workers from unethical employers. This suggests a shift in recognizing and addressing the vulnerabilities of migrant workers within the existing economic and labor systems.
Although the revised law falls under the umbrella of immigration, a significant portion deals with the worker-employer dynamic. Of course, understanding labor market realities is critical for migrant workers. Notably, the key areas left to national law, such as admission numbers and entry requirements, are also heavily influenced by labor market dynamics. Leaving these economic migration aspects to individual Member States mirrors the approach taken with broader EU employment law. This approach acknowledges the variations in labor markets and employment regulations across different Member States.