Ending The Exploitation Of Seasonal Workers: Eu Constabulary Picks The Low-Hanging Fruit

 

Steve Peers

For a long time, it proved impossible for the European Union to grip on legislation on migrant workers coming from non-EU countries. Eventually, the Member United States of America were able to grip on some laws that generally concerned higher-income migrants: the Blue Card Directive (on its implementation, reckon here) together with the Directive on intra-corporate transferees (see give-and-take here). The European Union has too adopted some full general rules on the overall framework for admission of labour migrants (the so-called single permit Directive).

But for the get-go fourth dimension lastly year, the European Union too adopted rules on a less well-paid grouping of migrant workers: seasonal workers. This grouping of workers is potentially peculiarly vulnerable to exploitation together with abuse. Does the recent Directive go far plenty to protect them from these risks?

Content of the Directive

Member United States of America own got to apply this Directive yesteryear thirty September 2016, together with the UK, Republic of Ireland together with Kingdom of Denmark opted out of it. It is limited inwards range to those who usually reside exterior the territory of the EU, together with who apply to live admitted every bit seasonal workers, or who own got already been admitted nether the price of the Directive. Also, it applies to those admitted for less than 3 months every bit good every bit those admitted for a longer period. For the old group, the Directive specifies that the EU’s borders together with visas legislation continues to apply, together with makes a number of cross-references to those measures. Furthermore, the Directive does non apply to those workers who are usually employed inwards other Member States, together with who are ‘posted’ yesteryear their employers to run inwards a mo Member State, to non-EU menage unit of measurement members of European Union citizens, together with to non-EU citizens covered yesteryear an understanding which extends gratis motility rights (the EEA or EU/Swiss treaties).

A ‘seasonal worker’ is a worker who usually resides exterior the EU, together with who lives temporarily inwards the European Union to ‘carry out an action dependent on the passing of the seasons’, pursuant to a fixed-term contract concluded straight with an employer established inwards a Member State. The concept of a seasonal action is inwards plow defined every bit an ‘activity that is tied to a for certain fourth dimension of the yr yesteryear a recurring lawsuit or designing of events linked to seasonal weather condition during which required labour levels are significantly higher upwardly those necessary for usually ongoing operations.’ Member United States of America own got to define what the relevant sectors are; the preamble refers to tourism, agriculture together with horticulture every bit areas where seasonal run is usually needed.

Member United States of America are gratis to laid higher standards for for certain issues (procedural safeguards, accommodation, workers’ rights together with facilitation of complaints), but otherwise the Directive has laid fully harmonised rules. So Member United States of America can’t alter the noun grounds for admission or the rules on duration of remain together with re-entry.

The telephone substitution criteria for admission are fully mandatory. Member United States of America own got to ensure that an application to go inwards every bit a seasonal worker is accompanied by: a valid run contract or binding project offer, setting out all of the details of the job; a valid go document (possibly valid for the entire duration of the seasonal work); evidence of having, or having applied for, sickness insurance (unless such coverage comes with the run contract); together with evidence of having accommodation, every bit defined inwards the Directive (see below). Member United States of America own got to banking concern check that the seasonal worker has sufficient resources non to own got to work the social assistance system, cannot acknowledge persons considered to pose a threat to world policy, world security or world health, together with must banking concern check that the applicant does non pose a peril of illegal immigration together with intends to teach out the Member States’ territory when the say-so for seasonal run expires.

Applications own got to live rejected whenever these weather condition are non met, or where the documents presented with an application are ‘fraudulently acquired, or falsified, or tampered with.’ Member United States of America too own got to reject applications, ‘if appropriate’, where in that location has been a prior sanction against the employer for ‘undeclared run and/or illegal employment’, the employer is beingness injure upwardly or has no economical activity, or the employer has been sanctioned for breach of the Directive.

Otherwise the grounds for refusal of an application are optional: a labour marketplace preference examine for domicile State citizens, other European Union citizens or third-country nationals lawfully residing together with forming purpose of the labour market; the application of Member States’ rules on volumes of admission of third-country nationals; or breaches of work constabulary yesteryear the employer, the work of seasonal run to supersede a full-time job, or a prior breach of immigration constabulary yesteryear the would-be worker. There are like provisions on withdrawal of the authorisation to run every bit a seasonal worker, although it should live noted that Member United States of America tin withdraw say-so if the worker applies for international protection.

As for the admission procedure, Member United States of America own got to brand data available on the weather condition of entry together with residence together with rights, every bit good every bit the admission process. It’s upwardly to Member United States of America to create upwardly one's heed whether the applicant or the employer makes the application, together with the application physical care for takes the shape of a unmarried application physical care for for a combined work/residence status. Those applicants who fulfil the admission criteria together with who do non autumn foul of the grounds for refusal must live granted a permit or visa, inwards the format of the European Union touchstone visa or residence permit.

There’s a total maximum bound of betwixt v together with nine months per calendar yr of residence for a seasonal worker; they must therefore render to a tertiary country. Since the Directive only regulates admission together with remain of seasonal workers, it should follow that Member United States of America nonetheless retain discretion to permit the worker to remain for longer on another ground.

Within the maximum fourth dimension limit, seasonal workers volition live able, on 1 occasion, to alter employers or to obtain an extension of their remain with their employer, if they nonetheless run across the criteria for admission, although the grounds for refusal volition nonetheless apply. The preamble makes clear that this possibility is intended to avoid abuse, since the worker volition non live tied to a unmarried employer. Member United States of America volition own got an selection to permit farther extensions or changes of employer. But over again they tin punish whatever worker who applies for international protection, yesteryear refusing to extend that worker’s stay.

Next, the Directive facilitates the re-entry of seasonal workers who were admitted at to the lowest degree 1 time inside the previous v years, if they complied with immigration constabulary during their stay. This could include a simplified application process, an accelerated procedure, priority for previous seasonal workers, or the number of several seasonal worker permits at the same time. The thought is to give an incentive to workers to comply with immigration law.

Member United States of America own got to impose sanctions against employers who own got breached their obligations nether the Directive, including a possible ban on employing seasonal workers. If seasonal workers’ permit to run is withdrawn because of the employer’s illegal behaviour, the employer must compensate the employees for all the run they own got done or would own got done. There are specific rules on the liability of sub-contractors.

Moving on to procedural safeguards, the Directive provides for: a notified determination inwards writing inside 90 days of the application; special rules on the renewal of authorization; a direct chances to supply additional necessary data inside a reasonable deadline; together with a requirement that a rejection (or withdrawal or non-renewal of a permit) live issued inwards writing together with opened upwardly to a legal challenge, with data on the reasons for the decision, the redress available, together with the relevant time-limits. Member United States of America may accuse fees for applications, if they are non disproportionate or excessive, together with may require employers to pay the costs of workers’ go together with sickness insurance. Workers’ accommodation must ensure an ‘adequate’ touchstone of living, rents cannot live excessive, a contract for housing must live issued, together with employers must ensure that accommodation meets wellness together with security standards.

As for the rights of seasonal workers, get-go of all they own got the correct to go inwards together with remain on the territory of the relevant Member State, gratis access to the territory of that Member State, together with the correct to behave out the economical action which they own got been authorized to own got up.  Furthermore, they own got the correct to equal handling with nationals every bit regards price of work (including working conditions), liberty of association, dorsum payments, social security, the transfer of pensions, access to goods together with services available to Blue Planet (except housing), work advice (on seasonal work), education, together with recognition of diplomas, together with taxation benefits. However, equal handling tin live restricted every bit regards menage unit of measurement benefits, unemployment benefits, didactics together with taxation benefits, together with Member United States of America are nonetheless gratis to withdraw or to decline to renew the permit inwards accordance with the Directive. Finally, Member United States of America must ensure monitoring, assessment, together with inspections, together with facilitate complaints workers or yesteryear tertiary parties supporting or acting on their behalf.

Comments

According to its preamble, the intention of this Directive is to regulate the admission of seasonal workers with a thought to enhancing the EU’s economical competitiveness, optimizing the link betwixt migration together with development, piece guaranteeing decent working together with living weather condition for the workers, amongst incentives together with safeguards to preclude overstaying or permanent stay. In regulation it has achieved some of these goals, inwards special yesteryear including a number of provisions to ensure equal handling together with decent accommodation for seasonal workers, to punish employers who mistreat workers or who breach immigration law, together with to guarantee that the rules inwards interrogation are enforced.

In fact the Directive was significantly improved on these points during the legislative process, inwards special every bit regards monitoring together with penalty of dodgy employers, accommodation standards, equal handling (which was significantly extended inwards scope), employees’ costs, together with remedies against employers (compare the lastly Directive to the master copy proposal). Doubtless this was largely due to the difficult run of NGOs which raised these issues (see their articulation controversy here). Perhaps the European Union should work this Directive every bit a template to attempt together with address the exploitation of other vulnerable groups of migrant workers – for lawsuit domestic workers, who are at special risk of beingness enslaved or trafficked.

Having said that, in that location are some limits to what Member United States of America were willing to agree. There are exceptions from the equal handling rule, together with some of the provisions on dodgy employers, every bit good every bit the ban on passing costs along to the workers, are optional, non mandatory. (See the comments on the lastly Directive yesteryear a grouping of NGOs here). The correct to alter employers is dependent land to conditions, together with Member United States of America mightiness decided to permit only 1 such change. More broadly, piece the provisions on enforcement are stronger than what Member United States of America are usually willing to grip to inwards European Union laws almost migrant labour (or indeed European Union work law), it remains to live seen how much resources Member United States of America are truly willing to expend on enforcement inwards practice.

Furthermore, since the Directive is limited inwards range to those who are non yet on the territory, it tin do nix to alleviate the seat of those who are acquaint without say-so but who cannot live returned (ie who are inwards limbo) together with it gives Member United States of America limited carte blanche to deprive asylum-seekers of fifty-fifty the small-scale income which they were previously earning every bit seasonal workers. Overall, piece the Directive volition hopefully own got some number achieving its objectives, it may live a classic illustration of what academics telephone phone ‘picking the low-hanging fruit’ – focusing on the easier issues together with avoiding the harder ones.

*This transportation is based on my ongoing enquiry for the 4^th edition of EU Justice together with Home Affairs Law (forthcoming, OUP)

Photo credit: Globalpost.com

 

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