Take this job and shove it: the revised EU law on non-EU migrant workers

 

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.