The EU Migration and Asylum Pact’s muted position on protecting low-skilled migrants in the labour market
By Amy Weatherburn
The European Union’s priorities are clearly laid out in the new Asylum and Immigration Pact with a focus on externalisation, return and the fight against migrant smuggling. The emphasis on the fight against migrant smuggling is linked to the “[exposure] of those staying illegally to precarious conditions and exploitation by criminal networks’ and one proposed solution is the development of legal pathways as a means of “reducing irregular migration.”
Despite these overtones, the pact does not adopt a stronger stance when it comes to labour migration, a sentiment that is reflected in the Pact’s reception by NGOs who, in a joint statement, declared that:
“The recognition of the need to facilitate more labour migration across skills levels is welcome but the significance of labour migration for European economies and societies is not reflected in the related resources, proposals or actions.”
The IOM also notes the lack of a balanced approach between returns and tackling irregular migration on the one hand and migrant protection and integration on the other. For the Platform for International Cooperation on Undocumented Migration (PICUM), ‘the plans in the area of labour migration are relatively timid and over-shadowed by the focus on return.’
There are some elements of the Pact that are to be welcomed however. Particularly, the recognition of the role of migrant labour in key sectors during the Covid-19 pandemic; the labour shortage in the EU and the structural issues that will be faced by key sectors such as health care and agriculture; the need to review the Single Permit Directive for workers who do not fall under the ‘highly-skilled' category and the need to introduce legal pathways in order to reduce irregular migration that may lead to undeclared work and labour exploitation. Unfortunately, these elements are overshadowed by the Pact’s emphasis on migrant smuggling that does not sufficiently take into account the implications on labour migration, in particular for low-skilled and irregular migrant workers.
The Pact above all, emphasises a criminalisation approach to tackling migrant smuggling and fails to sufficiently make the link with the lack of legal channels into the EU for people who are either seeking asylum or seeking work. Furthermore, the lack of these legal channels coupled with the absence of measures that could increase the social and human capital of these migrants and asylum seekers once in Europe is counterproductive, as it fosters an increased reliance on smugglers. Without an acknowledgement of the precarity of many who are compelled to accept low-paid and precarious work that is often informal and, in some instances, amounts to exploitation; the Pact fails to sufficiently tackle the factors that increase the likelihood of precarity in the first place.
To demonstrate this, three issues must be outlined that emerge from the Pact.
First, the role of low-skilled migrant workers. The emphasis on talent partnerships and attracting high-skilled workers ignores the need to facilitate legal access to the EU labour market for low-skilled migrant workers. The EU needs to recognise the contribution of non-EU nationals in low paid sectors, including those who are working irregularly. The accompanying Recommendations on legal pathways to protection in the EU puts forward alternative pathways to international protection in the EU, including providing access to the labour market and integration. Such complementarity and alternative pathways should also be extended to low-skilled labour migrants when it comes to labour migration management and governance, such as circular migration.
Second, the link between migrant smuggling and human trafficking. Whilst the Pact briefly refers to both of these phenomena, the Guidance on the implementation of EU rules on facilitation of unauthorised entry, transit and residence does not refer to the overlap with human trafficking and/or the need to consider the possibility of exploitation. The Pact only refers to the risk of trafficking in two contexts, along migration routes and the abuse of asylum procedures by trafficking networks to identify potential victims. However, this fails to address the aspects of the current asylum procedures that are in fact facilitating the increased vulnerability and risk to exploitation not just during the migration journey but also within the EU.
Third and finally, the protection of migrant workers’ rights is neglected. The Pact announces an assessment and evaluation of the Employers’ Sanctions Directive 2009/52/EC in prohibiting irregular employment. Despite the assessment of the Directive being well overdue, the emphasis on prohibition does not address the need to improve the Directive’s protective measures that seek to safeguard the rights of irregular third-country nationals and which are currently poorly implemented by Member States. More widely the Pact fails to mention the lack of respect of the rights of migrant workers, including those who are irregular, and the discrimination they face in the workplace when it comes to wages and working conditions.
In light of these gaps, they must not only be addressed in the Pact’s Implementation Roadmap but also streamlined with other key policies such as the recent Joint Statement on Integrating Migrants and Refugees into the Labour Market; the EU Skills Agenda; the Action Plan on Integration and Inclusion and the next EU Strategy to Eradicate Trafficking in Human Beings. Above, all, any further measures that seek to strengthen the position of low-skilled labour migrants must strive to be inclusive and human rights compliant.
Dr. Amy Weatherburn is a postdoctoral researcher at the Centre for European Law and Institute for European Studies at the Université Libre de Bruxelles. Her current research explores labour exploitation in Europe, with a particular focus on low-skilled migrant workers in Belgium, the UK and the Netherlands. Her doctoral thesis examined the possibility of developing a conceptualisation of exploitation in human trafficking law, with a view to clarifying the scope of labour exploitation in criminal proceedings.