The EU directive sanctioning employers for utilising irregular migrants is putting migrant workers who might complain in a Kafkaesque scenario.
Imagine working for 14 hours in the hot sun of southern Italy, picking tomatoes. Now imagine doing that every day, including weekends. You receive €25 a day—if you’re lucky. That is, if you are not a migrant in an irregular situation. If you are, whether you get paid is all but a toss-up. It depends on the mood of your employer. If you protest, they will confiscate your papers and turn you into the authorities. You will be deported. They will hire others like you.
This is, in fact, not an imaginary case. It describes the working conditions on a tomato picking farm in Puglia, in southern Italy, which achieved notoriety after migrants decided to protest publicly against the conditions to which they were subjected. It culminated in a 2017 court decision, convicting 13 people of illicit recruitment, slavery and labour exploitation, based on a European Union directive.
Eradicating ‘illegal migration’
The Employers Sanctions Directive does include some provisions aiming to protect irregular migrants from exploitation, oppression and slavery. Yet most irregular migrants do not receive justice. They will not be compensated for unpaid wages and will likely be deported if they report the conditions in which they work.
A recent report by the EU Fundamental Rights Agency showcases exploitative practices throughout Europe during the decade since the adoption of the directive and highlights the difficulties of implementing it. These difficulties are not only practical, however: they arise because the primary goal of the directive is not to protect migrants but to eradicate ‘illegal migration’.
To that end, the EU seeks to recruit migrants to report on employers who hire them. In other words, it promises short-term protection to some migrants in striving to eliminate ‘illegal migration’.
The directive was intended to dissuade employers from hiring migrants in an irregular situation. Its rationale was that ‘a key pull factor for illegal immigration into the EU is the possibility of obtaining work in the EU without the required legal status’—implying that ‘action against illegal immigration and illegal stay should therefore include measures to counter that pull factor’.
Complaint mechanism
The provisions to protect workers include a complaint mechanism, with the possibility of back pay and of obtaining a temporary residence permit. But the FRA report highlights major variations across the 25 member states (MS) bound by the directive, in transposing it into national legislation and in safeguarding workers’ rights.
To begin with, the complaint mechanism is undermined by migrants not being aware of their rights and/or being afraid they might be deported if they exercise them. There are language barriers in terms of access to information and the relevant institutions and third parties such as trade unions or non-governmental organisations may be unable to act on their behalf.
Labour inspectorates could play a huge role in improving this mechanism—by, for instance, informing workers of their rights and channels of complaint or by translating their websites and relevant documents into different languages. Yet in 17 MS, while such bodies are obliged to inform workers of health-and-safety regulations this is not so of their employment rights. Most websites are in the national language(s) and English.
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By law and practice, labour inspectorates in 20 MS must report migrants working irregularly to the authorities. Indeed, often they conduct joint inspections with the police or immigration authorities, which can prevent migrants coming forward.
Unsuccessful outcomes
Even if migrant workers do decide to lodge a complaint and ask for due wages, the outcome is often not successful. The FRA found that out of 20 MS permitting claims for back payment actual claims had been made only in five and data were limited on whether back pay had been secured and how much. Not only is it difficult to prove the existence of an employment relationship and the extent of underpayment for irregular contracts but employers can meanwhile declare bankruptcy or disappear altogether, making it difficult to recover any wages.
The directive also recommends that migrants be offered a temporary residence permit but this is possible only in 14 MS. It is tied to them pursuing criminal charges against the employer and collaborating with the relevant authorities—the civil suits usually involved in pursuing back payment or the mere lodging of a complaint do not suffice. The permits are generally valid for six months or one year and can be extended for the duration of the court proceedings or, in some MS, until wages are paid back. The report makes it abundantly clear, however, that few residence permits have actually been awarded to exploited migrants engaged in criminal-law suits in this way.
Importantly, the sanctions for employers are mostly not severe enough to dissuade them from continuing these exploitative practices.
The FRA report recommends that member states:
- enable third parties, such as unions, to support or act on behalf of exploited migrants,
- enable back payments through the freezing and confiscating of employers’ assets to compensate exploited workers,
- inform workers of their rights more systematically and effectively,
- issue (more) temporary work permits,
- change practices and legislation that require labour inspectorates to share personal data of migrants in irregular situations and
- improve data collection and the monitoring of complaints.
Instrumentally useful
Yet this assumes that the intention of the EU directive is to protect irregular migrants—rather than, primarily, to fight ‘illegal migration’. To that end, it is instrumentally useful to recruit irregular migrants to report their working conditions and employers. It is seen as a means to eliminate ‘pull’ factors among employers hiring irregulars.
Migrants in irregular situations are thus being encouraged, by the offer of short-term residence or the promise of back payment, to fight the very phenomenon they manifest. ‘Protection’, then, is attempting to recruit irregular migrants in the fight against themselves—not against the exploitative working conditions which are the genuine employer incentive.
This also explains why a police presence and the threat of deportation remain an integral part of labour inspections. Only those migrants deemed useful in curbing further irregular migration are thus offered protection. The rest can be deported.
If the EU is serious about protecting the vulnerable, it needs a new directive specifically protecting irregular migrants from horrific working conditions—decoupled from immigration enforcement.
Magdalena Ulceluse is a postdoctoral researcher at the University of Groningen, currently on a research visit at the Max Planck Institute for the Study of Religious and Ethnic Diversity. She previously held visiting research fellowships at the International Migration Institute in Oxford, the University of Amsterdam and the Central European Labour Studies Institute in Bratislava.
Felix Bender is a postdoctoral fellow at KU Leuven, focusing on migration and asylum. He worked at the Max Planck Institute for the Study of Religious and Ethnic Diversity and at Central European University. He held visiting positions at the Refugee Studies Centre, University of Oxford, the University of Amsterdam and the Woodrow Wilson International Center for Scholars, Washington DC.