By Amy Weatherburn
Labour migration in the EU: legislative developments
The most recent legislative developments under the auspices of the European Skills Agenda have focused upon developing sustainable EU policy on legal migration by simplifying migration procedures and improving migrant workers’ rights. Two main pieces of EU legislation that set out the framework for procedures and rights of legally residing third-country nationals have been put under the spotlight: the Long-Term Residents Directive 2003/109/EC and the Single Permit Directive 2011/98/EU (hereinafter the Single Permit Directive). In this post, we will discuss the legislative journey (to date) of the recast Single Permit Directive with a view to determining to what extent it offers migrant workers a simplified, rights-based procedure that grants fair and equal access to the EU labour market - also addressed here in an op-ed by the Platform for Undocumented Migrants (PICUM).
The Single Permit Directive and its implementation: the story so far
Single Permit holders are given the right to temporarily work and reside in the EU member state. In 2021, 2.9 million third country nationals were granted a Single Permit across the EU. The majority of the permits granted were for employment and family reasons and were issued with a validity of 12 months or over. However, the implementation of the Single Permit, since its introduction in 2011 has seen significant variation across EU member states and concerns have been raised about the complexity and efficiency of the application (and renewal) procedure, the exclusion of certain categories of migrants from the scope of the Single Permit Directive and the lack of protection of migrant workers from exploitation.
The rationale for the Single Permit Directive was to offer third country nationals easy access to the European labour market by introducing a combined work and residence permit that would be granted through a single application procedure. Once employed in an EU member state, the Single Permit also guarantees the equal treatment by non-EU States with nationals of the Member State of residence, in areas such as working conditions, education and training, access to goods and services, and social security. Importantly, the introduction of this streamlined approach does not however affect the national governments’ competence in determining the number of permits issued (including renewals) and the sectors that will be targeted as part of their national labour migration policy.
The reality however does not reflect the ‘one-stop shop’ mechanism that had been envisaged, with implementation across EU Member States leading to concerns that relate to “the multiple administrative steps required, the time needed to obtain the entry visas and labour market clearance and the respect of certain procedural safeguards”; “restrictive interpretation of equal treatment provisions in a few Member States” and “a lack of information among third country nationals about the possibility of obtaining a Single Permit and the rights attached to it.”
Another key concern that has been raised is the extent to which the Single Permit holder is tied to their employer. Research in Belgium highlighted that the dependence of the Single Permit holder on their employer increases the risk of exploitative working conditions; as they are reliant on the employer to request the Single Permit, to renew the permit and must be granted a new Single Permit before changing employer. As a result, Single Permit holders who may experience exploitative working conditions dare not leave their job, due to the impact on their migration status but also their daily circumstances: for instance, in many cases Single Permit holders are often accommodated in employer-provided housing that, even if sub-standard, they would lose if they were to leave their job.
Improving of third country nationals: Single Permit Directive Recast
A proposal for a Directive on the single application procedure for a Single Permit for third country nationals was published by the European Commission in April 2022. A significant number of the implementation concerns were addressed, including the need to streamline the application procedure; to allow in-country applications in addition to applications from non-EU States; to reduce the duration of application procedure; to strengthen safeguards and equal treatment of nationals; and to delink the Single Permit from one employer granting the worker the right to change employer without affecting their right to legally reside in the Member State.
On 23 March 2023, the European Parliament voted on their negotiating position of the proposed recast of the Directive which, in its current form, addresses all of the above aspects as well as ensuring that the possibility of falling into irregularity and risk of exploitation is minimised.
In particular, the updated proposal has several elements that will go towards improving the rights of migrant workers:
- The possibility to apply for the Single Permit from within the EU as well as from a non-EU Member State will permit fairer access to the EU labour market, especially of legally residing third country nationals who may use the Single Permit as a way of changing their migration status without being required to leave the territory of the Member State to make an application. This is a practice that has begun to take shape in Member States. For example, a new law in Belgium extends the possibilities for legally residing third country nationals, in certain circumstances, to change their status to the Single Permit from Belgium.
- The 90 day maximum duration of the application procedure will provide certainty to migrants and with a minimum validity of the permit, including inter alia visa procedures will secure access to rights; such as social and family benefits. The guarantee of a minimum duration will contribute to combatting the risk of debt bondage amongst migrant workers who often have to secure sufficient financial resources (often through illicit practices such as the charging of recruitment fees) to cover the costs of their migratory journey. Currently, the temporary nature of the work feeds into the economic vulnerability of migrants who are unable to earn enough money to pay back any debts owed.
- The right to change employer without requesting a new permit and, where workers lose their job, the possibility to remain in country for up to 9 months to find a new job without risk of falling into irregularity will minimise the dependency that Single Permit holders currently have on their employer. However, for both of these elements to work in practice the process for changing employer must not be too burdensome on the worker who must be aware of their rights, so that they may realise their rights in practice.
- In light of the labour market shortages across the EU, national governments are considering the use of the Single Permit with a view to providing labour market access to medium skilled and low skilled workers, the provision of monitoring mechanisms and access to complaints is crucial to ensuring that workers are not subjected labour exploitation. In a similar vein, the possibility for workers who have been subject to exploitation to be given 12 months to find a different job is a key step towards a zero-tolerance approach to exploitation and demonstrating that the rights of migrant workers are paramount.
The future lies in the hands of the EU Member States
Whilst the current proposal goes some way to addressing concerns in scholarship of a fragmented approach of the EU to labour immigration, the current proposed Directive must still be negotiated by the Council where the Member States’ perspective may be a hindrance, given that concerns about the protection of third country workers' social rights in the EU continue to be largely dependent on the Member States' political will. Indeed, such reticence can perhaps best be illustrated in the present case by the continued reference to labour market tests that permit Member States a certain degree of control over access to their labour markets by third country nationals.
Despite this caveat, the evolution of the recast Single Permit Directive along its legislative pathway suggests that the agency and autonomy of the worker has been acknowledged, with measures such as the right to change employer alongside their right to decent working conditions taking centre stage. Such developments are to be welcomed, given the contribution of migrant workers to the EU labour market, economy and society now and in the future.
Amy Weatherburn is a FRS-FNRS Postdoctoral Researcher at the Centre for European Law and Institute of European Studies at the Université Libre de Bruxelles. Her research interests focus on labour migration, labour exploitation and fundamental rights. She also teaches International and European Criminal Law at Master Level and is Adjunct Professor at the Brussels School of Governance. Since 2015, she has had significant research experience working on projects related to human trafficking and labour migration, including the 2021 ILO Study on Access to Protection and Remedy for for victims of human trafficking for the purpose of labour exploitation in Belgium and the Netherlands.