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
Overshadowed somewhat by the agreement
on asylum legislation, the EU Member States and the European Parliament have
also this week agreed on an amendment to EU law on migrant non-EU workers, known as the ‘single permit
Directive’. Unlike the asylum deal, which (subject to seeing the legal texts; I’ll
comment more when they are available) seems at first sight to be a reduction in
standards, the revised single permit Directive is a modest but useful
improvement in standards applicable to migrant workers. [Update: the revised law was officially adopted in April 2024.]
Background
The current
single permit law dates back to 2011. It does not regulate the numbers of
migrants coming from non-EU countries to seek work in Member States (the
Treaties state that only Member States can regulate that). Nor does it regulate the substance of when non-EU
labour migrants are admitted (ie issues such as shortage occupations, pay
thresholds or other criteria for admission). Rather it regulates two issues:
the procedural aspects of applying to be a migrant non-EU worker in the EU, and
the equal treatment of such migrant workers. (Note that there are also EU laws
on specific groups of migrant workers, which regulate the details of admission
of non-EU workers in more detail: the Blue
Card law on highly skilled workers; the seasonal
workers Directive; and the intra-corporate
transferees Directive. The EU law on admission of non-EU students
and researchers is also relevant to academic staff and trainees). There is limited
CJEU case law on the 2011 Directive: all of it concerns equal treatment in
Italy. The UK, Ireland and Denmark opted out of the law – although it has nevertheless
become applicable to UK citizens who seek to move to the EU as labour migrants post-Brexit.
Believing that the law needed updating
to streamline the admissions process and strengthen equal treatment, the
Commission proposed
replacing it with a new version in April 2022. (See also the impact
assessment on the new proposal, and the 2019 fitness
check and report
on implementation of the 2011 law) At the same time, the Commission
proposed replacing the EU law on long-term resident non-EU citizens (see my
comments on that proposal here
and here,
and on the Council’s position here).
The latter proposal is taking longer to negotiate.
The European
Parliament and the Council
adopted their positions on the single permit proposal in spring of this year,
and have now concluded their negotiations. Again Ireland and Denmark opted out, and the law will be
relevant to Brits who move to the EU. The revised law (the ‘2024 Directive’) will
likely be formally adopted in the spring of 2024, and Member States will have
two years to adapt their law to comply with it. The following describes the
current law, while explaining how the 2024 version will change it; it also
indicates which Commission proposals for amendments were rejected.
Scope of the single permit law
In addition to non-EU citizens
admitted for work, who are covered by both the procedural and equal treatment
parts of the Directive, the equal treatment part of the Directive also applies
to non-EU citizens who are admitted for other reasons, but who are allowed
to work. However, several groups of non-EU citizens are excluded from its
scope, usually because they are subject to more specific rules in other EU law:
non-EU family members of EU citizens who have moved between Member States;
citizens of countries which have a free movement treaty with the EU, and their
families; workers who are posted to provide services (the Commission’s proposal
to clarify whom this exception refers to was rejected); applicants or workers
who are seasonal workers or intra-corporate transferees (the 2024 version will define
these groups by reference to other EU law); au pairs (the Commission’s proposal
to define them by reference to EU law was rejected); who have applied for or
obtained temporary protection (adding a reference to EU law; on the position of
those fleeing the invasion of Ukraine, see here;
the European Parliament’s amendment to drop this exclusion failed); who have
applied for or obtained refugee status or subsidiary protection on the basis of
EU law; who are EU long-term residents as defined by EU law; who have applied for
or been admitted as self-employed workers; whose expulsion is suspended (the
European Parliament tried to drop this exclusion too); or who have applied for
or been admitted as seafarers.
Member States may also disapply
the procedural part of the Directive (but not the equal treatment part) to
those who were admitted for less than six months (the European Parliament
tried, but failed, to cut this to three months), or who were admitted to study;
and the procedural part does not apply at all to those admitted on the basis of
a visa.
The biggest change to the scope
in the 2024 version is that the equal treatment part of the Directive will now
apply to the beneficiaries of national protection (as distinct from
EU-harmonised asylum law), if that national law allows them to work. Applicants
for national protection are still fully excluded. This is a compromise between
the Commission and European Parliament, which wanted to drop this exclusion for
applicants for and those holding national protection status fully, and the
Council, which wanted to retain it fully.
The single permit process
The 2011 law provides that a single
permit is both a work permit and a residence permit, issued on the basis of a
single application. Either an employer or employee applies for it (or both, if
a Member State allows that). Applications must be made from outside the country,
although Member States may allow applications for those who are legally
present. The 2024 law will liberalise this, by always allowing in-country
applications from non-EU citizens who are legally resident on the basis of a
residence permit; Member States may allow in-country applications by
those who are otherwise legally present. (The Commission and European
Parliament wanted to require Member States to consider in-country applications
from the latter group, but allowing in-country applications from holders of residence
permits was as far as the Council was willing to go).
Member States must decide on
single permit applications within 90 days, cut from four months under the
current law at the behest of the European Parliament. Also, the 2024 law will
streamline this further by requiring that this time limit also covers time to
check the labour market (where national law provides for this). But the Commission’s
more ambitious proposal (backed by the European Parliament) to streamline the
process even more by applying this time limit also to the issue of a visa was
rebuffed by the Council. So was the European Parliament’s attempt to cut the
time limit to 45 days in certain cases. It will still remain possible to extend
the deadline in exceptional cases.
The European Parliament’s attempt
to introduce a minimum period of validity for single permits (two years for an
indefinite contract, otherwise the duration of the contract) was not accepted
by the Council, so this issue remains regulated by national law.
The current procedural rights to
know the reasons for a rejection of an application or withdrawal of a single
permit, and to challenge that decision in court, are retained. They are strengthened
by adding requirements to consider the individual case and the principle of
proportionality, at the European Parliament’s behest. The provisions on access
to information will be expanded, including fees, legal redress and workers’
organisations – those additions again at the European Parliament’s behest. On
application fees, it will now be specified that they must not be excessive; the
European Parliament’s amendment to specify that an employer could not collect
the fee from the worker (where the employer pays the fee) was accepted.
Employment rights
The current Directive provides
for basic rights to live in the country and carry out employment once the
single permit has been issued. The Commission sought to go further, and add two
further rights of fundamental importance to the position of non-EU workers: the
right to change employer and the protection of status in the event of unemployment.
In both cases, the Council sought to offer much less improvement and the European
Parliament sought to offer much more; and in both cases, the end result was a
compromise.
Changing employer
Currently, this issue (like
unemployment) is left to national law. Therefore it is not accurate to say that
the 2011 directive requires workers to stick with their current
employers; rather the Directive does not stand in the way of most Member
States insisting upon such a requirement (for the details of which Member
States require this, see the impact assessment).
The Commission proposed that
workers could change employer, subject only to the option for Member States to
require notification and a check of the labour market situation; this could be
suspended for 30 days while Member States did checks. The Council position
provided that Member States also could recheck the original conditions of
admission, check a possible change of occupation, suspend the job move for 90
days (not 30) and require a minimum period with the first employer (but no more
than a year), subject to an obligation to allow earlier employer changes in ‘exceptional’
cases. The European Parliament would have required notification but would only
have allowed labour market checks in certain cases. The final text of the 2024
directive allows for notification and labour market checks, with a 45 day
period to do checks (with an exceptional 15 day extension), and the possibility
for Member States to require no more than six months with the same employer before
attempting to change employer – subject to an obligation to let the worker
change employer earlier if the employer has seriously breached the employment
contract.
Unemployment
The Commission proposed that the
worker could stay for three months of unemployment, and if they found a new job
after they could stay for 30 days more while Member States did checks. The
Council position cut that to two months over the entire validity of the permit.
The European Parliament version provided for a nine month period, with a 12
month extension in the event of a ‘serious violation’ of the worker’s rights by
an employer. The compromise in the final text of the 2024 directive is three
months’ unemployment over the validity of the permit – rising to six months after
two years holding a single permit, although for periods of unemployment above
three months Member States can require the worker to have sufficient resources
without recourse to social assistance. Moreover, if there are reasonable
grounds to believe that a worker has suffered particularly exploitative working
conditions, the unemployment period can be extended by four months.
Equal treatment
First of all, a reminder that as
noted above, the equal treatment provisions of the Directive have a wider scope,
applying also to those admitted for other reasons but allowed to work, and now to
be extended also to those with a form of national protection.
There is a long list of equal
treatment rights, but also a long list of exceptions. The Commission proposed
that the possible derogation from equal treatment as regards housing be
narrowed so that it applied only to public housing, and that those admitted on the
basis of a visa have equal treatment as regards family benefits. The final text
accepted the first of those amendments, subject to qualifying wording (and an
explanation in the preamble, inter alia on the importance of workers having a
choice not to have to take housing tied to the employer), but rejected the
second (at the Council’s behest). There are also elaborations on the work-related
equality rights.
Finally, in addition to some
amendments to the obligations to provide information on the public, there are
two wholly new provisions on bad employers: one on public sector monitoring and
checks, and the other on workers’ rights of individual redress against them.
Comments
It is obvious that the Member
States in the Council were willing to accept a lot of the proposals from the
Commission, as well as many of those from the European Parliament. The social
democratic party in the Parliament has taken
credit for insisting on these amendments, and indeed it should be
congratulated if it had the main role, because the agreed law does improve the
position of non-EU migrant workers. But we should not forget that as assiduously
as they defended migrant workers’ rights, the social democrats (and liberals)
were simultaneously reportedly throwing asylum seekers and refugees under the
bus in the asylum negotiations.
To recap, the main changes to the
current law are: rights to change employer and protection during unemployment;
an extension of personal scope of the equal treatment rules (and their
qualified extension to private housing); monitoring of, and facilitation of
challenges against, bad employers; in-country applications for all holders of
residence permits and a shorter deadline to decide on applications.
The main points rejected by the
Council concerned visas: including the visa process within the deadline to
decide on applications; and equal treatment in family benefits for visa holders.
The main successes of the Parliament (besides defending Commission proposals,
particularly as regards changes of employer and unemployment) are the shorter
deadline to decide on applications, and an extra stay if victimised by a particularly
vile employer.
Indeed, one striking feature of
the amendments is how much they aim to protect against bad employers – not only
as regards that possible extra stay, but also as regards redress against them and
greater monitoring of them. The provisions on private housing, and also obviously
protection in the event of unemployment and the right to change employers, implicitly
help to protect against exploitative employers too. A set of revisions on the law
on migrant workers that mainly concerns how to protect them against predatory
employers could be seen as a sign of late capitalism.
While all of the revised law formally
concerns immigration, most of it is in effect about the relationship between workers
and their employers: only the provisions on in-country applications and
application deadlines are immigration law in the purest sense. Of course, any
law on migrant workers can only be fully understood in context as an aspect of
labour markets; the situation on the labour market will in turn be fundamental
in practice for any migrant worker who contemplates changing employer, or who is
looking for a new job during unemployment. And the key points left to national
law (admission quotas, conditions of admissions) are also strongly
affected by how labour markets operate in practice. Leaving these aspects of
economic migration to national law mirrors the aspects of employment
law as such which are left to national law by the EU, in order to take account
of differences between Member States as regards the functioning of labour
markets and traditions of employment regulation.
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