Tag Archives: Migration control

Sanctions against the employment of illegally staying non-EU nationals

Outline of the Community (European Union) legislation about Sanctions against the employment of illegally staying non-EU nationals

Topics

These categories group together and put in context the legislative and non-legislative initiatives which deal with the same topic.

Internal market > Living and working in the internal market

Sanctions against the employment of illegally staying non-EU nationals

Document or Iniciative

Directive 2009/52/EC of the European Parliament and of the Council of 18 June 2009 providing for minimum standards on sanctions and measures against employers of illegally staying third-country nationals.

Summary

The directive requires Member States to prohibit the employment of illegally staying non-EU nationals. It lays down common minimum standards on sanctions against employers who infringe the prohibition. Member States may decide not to apply the directive to illegally staying non-EU nationals whose removal has been suspended and who have been granted permission to work under national law.

Employers’ obligations

Employers are obliged to:

require non-EU nationals to produce a residence permit or another authorisation to stay before taking up employment;
keep copies of the permit or authorisation for the duration of the employment, in case of inspection by the national authorities;
notify the authorities within the period established by the Member State when they employ a non-EU national.

In cases where the employer is an individual who engages a non-EU national for private purposes, Member States may provide for a simplified procedure of notification. Member States may decide not to require notification when the non-EU national has been granted long-term residence status.

Sanctions

Member States must ensure that infringements are subject to effective, proportionate and dissuasive sanctions, including:

financial sanctions in relation to each illegally employed non-EU national;
payment of the costs for returning the illegally employed non-EU nationals.

The financial sanctions may be reduced for individuals employing illegally staying non-EU nationals for private purposes, provided that the working conditions were not exploitative.

Member States must ensure that employers are liable to make back payments, such as outstanding remuneration, including the cost of sending it to the employee’s country of origin, and social security contributions. To calculate the back payments, the employment relationship is presumed to have lasted for at least three months unless proved otherwise.

Member States must put in place the necessary mechanisms whereby illegally employed non-EU nationals may claim any outstanding remuneration from their employers. The non-EU nationals must be informed of their rights before their return is enforced.

Member States must ensure that employers are also, if appropriate, subject to other measures, such as:

exclusion from entitlement to some or all public benefits, including EU funding for up to five years;
exclusion from participation in a public contract for up to five years;
recovery of benefits granted up to 12 months prior the detection of the illegal employment;
temporary or permanent closure of the establishment.

Member States must also ensure that where an employer is a subcontractor, the contractor of which the employer is the direct subcontractor will be held liable in addition to or in place of the employer. However, contractors that have undertaken due diligence obligations defined by national law will not be liable. Member States may also provide for more stringent liability rules in relation to subcontracting.

An intentional infringement constitutes a criminal offence when the employer:

persists in his/her non-compliance;
employs a significant number of illegally staying non-EU nationals;
employs such persons in particularly exploitative working conditions;
employs victims of trafficking in human beings;
illegally employs minors.

Inciting, aiding and abetting this conduct must also constitute a punishable criminal offence.

Criminal sanctions may be accompanied by other measures, including publication of the judicial decision. Legal persons can also be held liable.

Complaints and inspections

Member States must ensure that illegally employed non-EU nationals can lodge complaints against their employers either directly or through designated third parties. Those working in particularly exploitative conditions may be issued residence permits for the duration of their proceedings on a case-by-case basis, under arrangements comparable to those provided for by Directive 2004/81/EC on the residence permit issued to third-country nationals who are victims of trafficking in human beings and who cooperate with the competent authorities.

Member States are required to carry out effective and adequate inspections based on regular risk assessments to control the employment of illegally staying non-EU nationals.

Background

The Commission suggested these measures in its communication of 19 July 2006 on policy priorities in the fight against illegal immigration. The European Council (15-16 December 2006) endorsed this suggestion, inviting the Commission to present proposals.

References

Act	Entry into force	Deadline for transposition in the Member States	Official Journal
Directive 2009/52/EC	20.7.2009	20.7.2011	OJ L 168 of 30.6.2009

A common immigration policy for Europe

Outline of the Community (European Union) legislation about A common immigration policy for Europe

Topics

These categories group together and put in context the legislative and non-legislative initiatives which deal with the same topic.

Justice freedom and security > Free movement of persons asylum and immigration

A common immigration policy for Europe

Document or Iniciative

Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions of 17 June 2008 – A Common Immigration Policy for Europe: Principles, actions and tools [COM(2008) 359 final – Not published in the Official Journal].

Summary

This communication puts forward 10 common principles with concrete actions for their implementation, on the basis of which the common European immigration policy will be formulated. In order to attain a coordinated and integrated approach to immigration, these principles are mainstreamed under the three main strands of European Union (EU) policy, i.e. prosperity, solidarity and security.

The common immigration policy will be delivered in partnership between the EU countries and institutions. It will be followed up regularly through a new monitoring and evaluation mechanism, including an annual assessment. Recommendations will be put forward by the European Council on the basis of a Commission report on the immigration situation at the European and national levels.

PROSPERITY: the contribution of legal immigration to the socio-economic development of the EU

Clear rules and a level playing field

The common immigration policy should be characterised by clarity, transparency and fairness and be targeted towards promoting legal immigration. Thus, the transmission to non-EU nationals of the necessary information pertaining to legal entry and stay in the EU should be ensured. In addition, the fair treatment of the non-EU nationals residing legally in the EU should be guaranteed. To implement these principles in practice, the EU and its countries should:

define clear and transparent rules for entry and residence in the EU;
provide information to potential immigrants and applicants, in particular on their rights and obligations as EU residents;
provide support and assistance on complying with entry and residence conditions to countries of origin as well as destination;
work towards a flexible Europe-wide visa policy.

Matching skills and needs

In light of the Lisbon Strategy, the promotion of economic immigration should be founded on a needs-based assessment of EU labour markets. Progress within all skill levels and sectors should be considered in relation to the knowledge-based economy and economic growth. At the same time, the principle of EU preference, the EU countries’ right to determine the volumes of admission and the immigrants’ rights should be kept in mind. In practical terms, this entails the following from the EU and its countries:

an assessment of current, medium-term and future (up to 2020) European labour market needs in terms of skills requirements;
the development of national “immigration profiles” comprising information on the labour market situation and the skills available and the gathering of comprehensive and comparable data on immigration;
the development of labour-matching tools and policies, the endorsement of mechanisms for the recognition of foreign qualifications and the organisation of training in countries of origin;
an assessment of the current and future potential for entrepreneurship among immigrants, including the legislative and operational framework for establishment, and the development of supportive measures;
the promotion of measures to increase employment among non-EU nationals, focusing especially on women, and the provision of alternatives to illegal employment.

Integration is the key to successful immigration

Integration as a “two-way process” should be promoted, conforming to the Common Basic Principles on Integration. The participation of immigrants should be enhanced, while social cohesion and approaches to diversity in the host societies should be developed. To this end, the EU and its countries should:

consolidate the EU framework for integration;
support the management of diversity and the evaluation of the outcomes of integration policies in EU countries;
promote integration programmes targeted at new immigrant arrivals;
ensure equal advancement opportunities in the labour market for legal non-EU workers;
apply social security schemes equally to immigrants and to EU nationals;
develop means to increase the participation of immigrants in society;
review Council Directive 2003/86/EC on the right to family reunification;
continue applying the EU asylum policy, while developing the measures further, in particular through the Policy Plan on Asylum.

SOLIDARITY: coordination between EU countries and cooperation with non-EU countries

Transparency, trust and cooperation

At the basis of the common immigration policy should be the principles of solidarity, mutual trust, transparency, responsibility and shared effort between the EU and its countries. Therefore, they should strive to:

improve the sharing of information in order to establish coordinated approaches where relevant;
develop mechanisms for monitoring the impact of national measures so as to achieve consistency within the EU;
establish interoperable systems to manage immigration more effectively;
provide for consistent communication of EU immigration policies both internally and externally.

Efficient and coherent use of available means

In the name of solidarity, the particular challenges that the external borders of certain EU countries are confronting should be considered in the financial framework. In this respect, the EU and its countries should:

complement national resources with the use of the framework programme on Solidarity and Management of Migration Flows (2007-13);
support the implementation of national policies and the ability to respond to ad-hoc situations with the mechanisms of the above programme;
carry out continuous evaluations on the allocation of resources through the programme to EU countries and modify these allocations when necessary;
develop further the management of activities that are funded from both EU and national resources in order to prevent concurrent actions.

Partnership with non-EU countries

Immigration should be an integral part of the EU’s external policies. Collaboration on all aspects of migration issues should be promoted in partnerships with non-EU countries. To this end, the EU and its countries should:

support the development of non-EU countries’ immigration and asylum systems, as well as legislative frameworks;
enhance collaboration and capacity-building in partner countries and develop mobility partnerships on labour migration;
employ policy instruments developed under the “Global Approach to Migration” framework, in particular to enhance cooperation with (potential) candidate countries, and guarantee the availability and effective use of financial instruments needed to implement this framework;
collaborate with African partners to implement the 2006 “Rabat process” and the EU-Africa Partnership on Migration, Mobility and Employment;
enhance collaboration with European Neighbourhood countries, Latin America and the Caribbean and Asia, in order to develop a shared understanding of migration challenges;
develop the legal and operational means to provide circular migration opportunities and collaborate with countries of origin on illegal immigration;
incorporate provisions on social security into association agreements with non-EU countries.

SECURITY: effective fight against illegal immigration

A visa policy that serves the interests of Europe and its partners

With a common visa policy, the entry of legal visitors into EU territory should be facilitated and internal security strengthened. This visa policy should be based on the use of new technologies and widespread information sharing between EU countries. To enable this, the EU and its countries should:

set up a four-tier approach with controls on visa applicants at all stages;
take up the uniform European Schengen visas;
use common consular centres for issuing visas;
examine the application of an electronic travel authorisation for non-EU nationals;
examine in more detail the visa procedures, in particular with regard to long-term visas.

Integrated border management

The protection of the Schengen area’s integrity is essential. Hence, the management of external borders should be improved and the development of border control-related policies should be aligned with that of customs controls and threat prevention. In practice, the EU and its countries should:

strengthen the functional aspects of the European Agency for the Management of External Borders (Frontex);
establish an integrated approach to border management based on an improved use of information technology and the Seventh Framework Programme (FP7);
carry on developing the European border surveillance system (EUROSUR);
collaborate with non-EU countries to develop the management of borders in relevant countries of origin and transit;
provide financial support for the development of the integrated European border management system;
develop a one-stop-shop control system at land borders through improved collaboration between EU country authorities.

Stepping up the fight against illegal immigration and zero tolerance for trafficking in human beings

A consistent policy for fighting illegal immigration and trafficking in human beings should be developed. Measures against undeclared work and illegal employment and for protecting victims of trafficking should be established. To work toward these goals, the EU and its countries should:

supply resources for investigating cases of smuggling and trafficking;
collaborate with representatives of workers and employers to tackle illegal employment;
develop tools to analyse risks and provide for evaluation of policies and improvement of measurement techniques;
support collaboration between administrations, in particular with regard to cross-checks, and assist in establishing exchanges of good practices;
encourage the use of biometrics as an effective tool in the fight against illegal immigration and trafficking;
apply fundamental human rights to non-EU nationals residing illegally in the EU;
provide protection and assistance to victims of trafficking, also with regard to recovery and reintegration into the society;
expand the legal framework to apply to new criminal phenomena in illegal immigration and sexual exploitation of children;
ensure the effective implementation of international instruments in the field of migrant smuggling and human trafficking in the EU.

Effective and sustainable return policies

Return policies are integral to policies on immigration. Giving legal status to illegal immigrants en masse should not be encouraged; yet, the possibility of giving legal status to individuals should not be impaired. Hence, the EU and its countries should:

ensure that return decisions are mutually recognised in the EU and promote collaboration between EU countries in carrying out these decisions;
assure that the directive on common standards for returning non-EU nationals staying illegally is implemented and applied once it has entered into force;
develop means to identify undocumented returnees and examine whether a European laissez-passer may be implemented for returning undocumented immigrants;
promote the implementation of readmission agreements by non-EU countries;
establish a common European approach to giving legal status to illegal immigrants.

Background

In today’s Europe without internal borders, managing immigration in a coordinated manner is of utmost importance. Since 1999, the EU has been seeking to do this under the auspices of the Treaty establishing the European Community (now under the Treaty on the Functioning of the European Union). However, the Commission deems that achievements to date have not been sufficient. A Europe-wide common policy is needed to provide a framework for coherent action. A vision for this policy was presented within the Commission communication “Towards a Common Immigration Policy” on 5 December 2007. Subsequently, the European Council confirmed the importance of developing a common policy and requested that the Commission submit proposals in 2008.

Strengthening the Global Approach to Migration

Outline of the Community (European Union) legislation about Strengthening the Global Approach to Migration

Topics

These categories group together and put in context the legislative and non-legislative initiatives which deal with the same topic.

Justice freedom and security > Free movement of persons asylum and immigration

Strengthening the Global Approach to Migration

Document or Iniciative

Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions of 8 October 2008 – Strengthening the Global Approach to Migration: Increasing coordination, coherence and synergies [COM(2008) 611 final – Not published in the Official Journal].

Summary

This Communication reports on the implementation of the Global Approach to Migration, presenting its future possibilities and suggesting improvements with regard to its coordination, coherence and synergies. The focus is both on the thematic development and the geographical aspects of the Global Approach.

Legal economic migration

Collaboration with third countries should be extended to address the European Union’s (EU) labour needs. Consequently, potential migrants should be informed about the rules and procedures for gaining legal access to the EU and of the risks associated with illegal migration. To this end, a migration portal will eventually be established and targeted information campaigns carried out. It is also essential that labour migrants’ access to the EU is flexible and that mobility for research or business purposes is facilitated. To this end, the Commission will aim to develop:

first generation mobility partnerships to use in strategic cooperation activities;
centres offering information and management services related to migration;
tools to better match jobseekers to vacancies;
exchanges of best practice among relevant stakeholders;
legal and operational measures that encourage circular migration;
common centres to handle visa applications.

Fighting illegal migration

In order to curb irregular immigration, the EU provides support to third countries on border management-related aspects. The Council has requested that the Commission considers broadening the role of FRONTEX in this context. Support is also provided to the fight against smuggling and trafficking of human beings, namely through international instruments, the national Anti-Trafficking Action Plans and improved legislative acts. Continuing dialogue and cooperation on these issues with partner countries has also been emphasised. In this regard, the Commission intends to support the:

collection of information relating to changes in migratory routes to the EU;
development of migration management in key third countries;
adoption and implementation of National Integrated Border Management Strategies in third countries;
setting-up of a border surveillance infrastructure under the European Border Surveillance System (EUROSUR) through strengthened cooperation with third countries;
implementation of the Ouagadougou Action Plan, as well as the development of anti-trafficking strategies by regional organisations.

Migration and development

Migration and development-related work must be improved and intensified. The principles set out in the European Consensus on Development should be used to this end, in particular to tackle the root causes of migration. It is also essential that migration policies be mainstreamed into other relevant policy areas. Hence, the Commission intends to improve the:

systems for remittance transfers;
migrant groups’ and diaspora associations’ participation in EU policy-making;
Policy Coherence for Development (PCD) dimension, especially in relation to brain drain;
quality of and access to education and vocational training, as well as opportunities for and conditions of employment in high emigration areas;
application of the European Consensus on Development to issues related to employment, governance and demographic developments;
understanding of the link between climate change and migration, as well as its present and future effects.

Migratory routes

With regard to the southern migratory routes, more coherence needs to be achieved at the policy development and implementation levels. To this end, the Commission aims to promote intra-African cooperation and the development of African migration policy frameworks. At the EU-level, the Commission intends to manage EU-Africa cooperation through the EU Implementation Team on the Migration, Mobility and Employment Partnership.

The migration and development dimension should also be extended to the cooperation between the EU and its neighbouring eastern and south-eastern regions. Issues such as labour migration, remittances, return and reintegration, as well as diaspora networks should be taken into account.

Other regions, such as the Southern Caucasus, Central Asia, Middle East, Asia, and Latin America and the Caribbean also have an impact on the EU’s migration policy in terms of irregular as well as legal economic migration. Therefore, a differentiated approach should be taken to these regions, both bi- and multilaterally, to strengthen dialogue and cooperation.

Better governance

The Global Approach must provide a practical framework for better migration management. Hence, its coherence and efficiency must be improved. Coordination between the EU, national, regional and local levels, as well as with third countries also needs to be strengthened. Sharing information on the EU’s political objectives regarding migration must be part of the dialogue and cooperation with third countries. In addition, the EU and the Member States should make their policy profile more visible and promote the Global Approach in the different cooperation frameworks.

Finally, the overall efficiency of the Global Approach is also linked to its financing. Consequently, the Community funding instruments, as well as those of the Member States and other outside sources, must be reviewed and their use improved.