Wednesday 5 November 2014

Irregular migrants and EU employment law


Steve Peers

What rights do irregular migrants have under employment law? It’s a vexed issue, because allowing irregular migrants to enforce employment law in their favour would arguably provide a ‘pull’ factor for them to enter and stay. On the other hand, if ordinary employment law applies to irregular migrants, then they will not be undercutting the legally resident workforce, and employers of irregular migrants will be deterred from employing them since they will not be saving money as a result.

The issue was addressed by the CJEU in today’s judgment in Tumer, concerning the application of the EU’s Directive on insolvency of employers to irregular migrants. In a bid to reduce the ‘pull’ factors of irregular migration, Dutch law specifies that irregular migrants cannot be considered employees for the purpose of the national application of the EU law. The result is that irregular migrants whose employer becomes insolvent cannot obtain the payments for back pay which the EU legislation provides for.

In this case, Mr. Tumer had initially resided legally in the Netherlands due to his marriage, but he was refused a continued residence permit after he got divorced. As a Turkish citizen, he arguably obtained rights based on the EU/Turkey association agreement, but the national court rejected his argument on this point and the CJEU refused to reopen the issue. Non-EU citizens can also obtain rights to stay after five years of lawful residence in accordance with the EU’s long-term residence Directive, but Mr. Tumer was divorced in 1996, well before that Directive had to be implemented (2006).

Despite not holding a residence permit, Mr. Tumer remained on the territory and worked for a Dutch employer. His employer became insolvent and he applied for the back pay which it had owed him from the Dutch fund set up to implement the insolvent employers Directive.


The CJEU ruled first of all that the ‘legal base’ for the adoption of the legislation, the previous Article 137(2) EC (now Article 153 TFEU) was not limited to EU citizens only, ‘to the exclusion of third-country nationals’. Next, while the EU’s long-term residence Directive provided for equal treatment of long-term resident third-country nationals, this ‘in no way precludes other EU acts, such as’ the insolvent employers Directive, ‘from conferring, subject to different conditions, rights on third-country nationals with a view to achieving the individual objectives of those acts’.

As to the scope of this Directive in particular, the Court noted that it left it to national law to define the concept of ‘employee’. However, this discretion was circumscribed by provisions which limited the ability of Member States to remove certain categories of employees from the Directive, and specified that atypical workers (part-timers, fixed term workers, agency workers) had to be considered as employees. The Court pointed out that the Directive neither excluded third-country nationals from the scope of the Directive nor ‘expressly permit[ted]’ Member States to exclude them. Dutch civil law classified anyone with a ‘contract of employment’ as an ‘employee’ who was entitled to receive pay.

So, the Court reasoned, national discretion regarding the definition of ‘employee’ was circumscribed by the need to ensure that the ‘social objective’ of the Directive was obtained. So this meant that an ‘employee’ was in effect, defined by EU law, referring to ‘an employment relationship that gives rise to a right, vis-à-vis the employer, to receive payment for work done’. This definition corresponds to Dutch civil law. Denying any employees access to back pay when their employer became insolvent was ‘contrary to the social objectives of the Directive’. It was irrelevant that the person concerned was not entitled to work in the country, and Member States could not refuse to apply the Directive to irregular migrants on the basis that it expressly allows Member States to take measures to combat ‘abuse’.


This judgment is an important confirmation that EU employment law in principle applies to third-country nationals in general, including (but not limited to) irregular migrants. First of all, the Court stated for the first time that the legal base for EU employment law was not limited in scope to EU citizens only. It did not explain this interpretation in the light of the specific power (never used) in Article 153 TFEU to adopt legislation on the conditions of employment of third-country nationals, but it must be assumed from the judgment that the existence of this specific competence in no way limits the personal scope of any other EU employment legislation.

The impact of the Court’s ruling is clearly not confined to the insolvent employers Directive only. It refers very generally to the prospect of adopting ‘other EU acts, such as’ this Directive, which apply to third-country nationals. Logically, this means that other EU laws, such as consumer law, apply to third-country nationals too, since the Court did not suggest that its approach was limited to employment law.

Having said that, the Court clearly states that EU legislation could subject its application to third-country nationals to ‘different conditions’. What conditions are those? Its approach in this judgment indicates how the personal scope of EU legislation should be interpreted.

In Tumer, it’s crucial that the EU legislation in question doesn’t expressly exclude third-country nationals, or expressly permit Member States to do so. It does leave the definition of ‘employee’ up to national law, but the Court rules that this power is subject to satisfying the ‘social objectives’ of the Directive. Those social objectives don’t go as far as to permit exclusion of third-country nationals.

Applying these rules of interpretation to other EU measures, no EU employment legislation expressly excludes third-country nationals, or expressly permits Member States to do so; and surely it would always contradict the social objective of the legislation concerned to exclude from its scope third-country nationals in general, or irregular migrants in particular. The same could be said of other areas of law, such as EU consumer law. In contrast, the Treaty rules and legislation on EU citizenship and free movement of persons are limited to EU citizens and their family members.

This means that irregular migrants, as well as third-country nationals generally, can invoke any EU employment law, and many measures in other fields of EU law. However, the judgment doesn’t give  them rights to invoke the application of purely national employment law in areas not directly regulated by EU law, such as pay (in the absence of insolvency).

Having said that, equal treatment as regards other aspects of national law might be required by EU immigration or asylum law, depending on the specific rules in that legislation.  The long-term residents’ Directive, referred to by the Court, is not the only EU measure which confers equal treatment rights in that regard. While most of the measures in this area concern legal migrants, it is striking that the Court makes no reference to the 2009 Directive on employers of irregular migrants, which contains specific rules on this issue.

In principle, according to that Directive, irregular migrants are entitled to the normal rates of pay from their employer, and that Directive also requires that effective means must be in place to enforce this. The reason for this rule is to avoid employers gaining a benefit from their exploitation of irregular migrants, and the judgment in Tumer is entirely consistent with this logic. As the Commission recently reported, however, Member States have been fairly lax in enforcing these rules (see the analysis by Elspeth Guild earlier on this blog).  

In the event that the employer becomes insolvent, perhaps due to the various sanctions against employers of irregular migrants that the 2009 Directive provides for, then the employees could rely on the Tumer judgment to get any back pay from the national funds set up to implement the insolvent employers Directive. However, what happens if the insolvent employer of irregular migrants has not been paying them the normal wage, and/or not making payments into the national fund? Today’s judgment does not address that issue, which the Court of Justice will have to address if and when it arises.


Barnard & Peers: chapter 20, chapter 26

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