3 Sanctions against employers of illegally
staying third country nationals
| (28656)
9871/07
COM(07) 249
| Draft Directive providing for sanctions against employers of illegally staying third-country nationals
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| Legal base | Article 63(3)(b) EC; codecision; QMV
|
| Document originated | 16 May 2007
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| Deposited in Parliament | 29 May 2007
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| Department | Home Office |
| Basis of consideration | EM of 20 June 2007
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| Previous Committee Report | None
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| To be discussed in Council | No date set
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| Committee's assessment | Legally and politically important
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| Committee's decision | Not cleared; further information requested
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Background
3.1 A number of measures have been adopted at EU level in relation
to the employment of third country nationals who are illegally
staying within the European Union. A Council Recommendation of
22 December 1995[7] provided
for Member States to encourage employers wishing to recruit foreign
nationals to verify their residence or employment status and to
apply penalties to employers who employ third country nationals
without authorisation. A subsequent Council Recommendation of
27 September 1996[8] called
for the employment of third country nationals without the necessary
authorisations to be prohibited and for the imposition of criminal
or administrative penalties.
3.2 A number of Framework Decisions have also been
adopted which relate to illegal immigration insofar as this may
involve trafficking in human beings, or the smuggling of people
across borders. The Framework Decision on combating trafficking
in human beings[9] requires
Member States to make criminal the trafficking of a person for
the purpose of labour or sexual exploitation, whilst a Directive[10]
and Framework Decision[11]
deal with people smuggling by defining the offences facilitating
unauthorised entry, movement and residence (Directive )and providing
for penalties (Framework Decision).
The draft Directive
3.3 The Commission proposes a draft Directive, to
be adopted under Article 63(3)(b) EC,[12]
to provide for common sanctions and measures to be applied in
the Member States against employers of third country nationals
who are staying illegally.
3.4 The concept of "illegally staying"
is defined (in Article 2) as the presence on the territory of
a Member State of a third country national who does not fulfil,
or no longer fulfils, the conditions for stay or residence in
that Member State. Article 3 of the Directive requires Member
States to prohibit the employment of illegally staying third country
nationals.
3.5 Article 4 requires Member States to oblige employers
to require the production of a residence permit or other authorisation
which is valid[13] for
the period of employment, and to keep a copy or other record of
the content of the permit or authorisation. Employers would also
be obliged to notify the competent authorities of a Member State,
within one week, of both the start and termination of employment
of third country nationals. Article 5 provides for Member States
to ensure that an employer is not liable under Article 3 where
the employer can show that he fulfilled the obligations under
Article 4.
3.6 Article 6 provides for "effective, proportionate
and dissuasive sanctions", including financial sanctions,
to be imposed in respect of any infringement of Article 3 by an
employer. Article 7 requires Member States to ensure that, in
the case of an infringement of Article 3, the employer pays any
outstanding wages to the illegally employed third-country national
together with any outstanding tax or social security contributions.
For these purposes, Article 7(2)(b) requires Member States to
provide for a presumption that the work relationship has lasted
6 months, unless the employer can show otherwise. Article 7(4)
requires Member States to ensure that the enforcement of any decision
to return an illegally staying third-country national is postponed
until that person has received any arrears of wages under Article
7(1)(a).
3.7 Article 9 requires Member States to ensure that,
where the employer is a subcontractor, "the main contractor
and any immediate subcontractor are liable to pay any sanction
under Article 6 and any back payments under Article 7". Article
9(2) requires the main contractor and any intermediate subcontractor
to be liable jointly and severally, "without prejudice to
the provisions of national law concerning the rights of contribution
or recourse".
3.8 Article 10 requires Member States to ensure that
the infringement referred to in Article 3 is made a criminal offence
when committed intentionally, in circumstances where the infringement
is continuing or repeated, where it involves at least four illegally
employed third-country nationals or "significantly exploitative
working conditions" or the employer knowingly employs a victim
of people trafficking. By virtue of Article 11, the criminal offences
referred to in Article 10 must be punishable by effective, proportionate
and dissuasive criminal sanctions.
3.9 The remaining provisions of the proposal are
concerned with the liability of, and sanctions against, legal
persons, facilitating complaints, inspections and reporting.
The Government's view
3.10 In his Explanatory Memorandum of 20 June the
Minister of State for Nationality, Citizenship and Immigration
at the Home Office (Liam Byrne) states that the Government supports
the general purpose of the draft Directive, and explains the operation
of the Asylum and Immigration Act 1996, and of new measures under
the Immigration, Asylum and Nationality Act 2006. The Minister
adds that it is too soon to decide whether further legislation
would be required to implement the draft Directive.
3.11 On the question of subsidiarity, the Minister
notes that the Commission contends that legislation by the individual
Member States would not be sufficient to tackle the problem of
illegally resident migrant workers and that it considers it is
acting within the limits of the powers conferred by the EC Treaty
and that it is complying with the principles of subsidiarity.
3.12 The Minister notes that this measure is proposed
under Title IV EC, and that the UK is currently considering whether
or not to opt-in. In this connection the Minister also notes that
the proposals are not restricted to illegal working policy but
will have wider effects, because of the accompanying measures
proposed in the Directive which will touch upon taxation, social
security, labour law and the provision of specific services to
interested employers and employees. The Minister concludes by
stating that there are aspects of the proposal which may adversely
affect Government policy and which need to be carefully considered
before taking a final decision on whether to participate in the
proposal.
3.13 The Minister makes a number of detailed comments
on the proposal. The Minister points out that the requirement
in Articles 4 and 5 to notify the competent authorities of the
start and end date of employment provides a "point of contention"
and may impose significant administrative burdens if this is taken
to require a new system of registration. The Minister also explains
that the requirement under Article 7 to pay outstanding remuneration
may present problems, in that individuals cannot generally enforce
statutory employment rights if they work illegally, although there
is no legal obstacle to prevent the employer from paying. The
Minister adds that these provisions present "real questions"
about providing illegal migrants with protection under UK law.
3.14 On the proposed liability of main contractors
and intervening sub-contractors, the Minister explains that the
proposals are wider than the UK law, which is concerned with contractual
employment, and that there are concerns that this would complicate
an area which is already fraught with difficulties and that the
"potential impact on commercial relationships should not
be underestimated". The Minister adds that the proposal to
place liability on "all employers within the sub-contractual
chain" exceeds current UK policy.
3.15 On the question of imposing criminal penalties
the Minister states that there are concerns that the introduction
of a criminal offence through an EC Directive is a "red line
issue" for the UK, and, in the Minister's belief, for many
other Member States. The Minister points out that the matter is
currently being considered by the ECJ and that further comments
are awaited.
Conclusion
3.16 We thank the Minister for his detailed and
helpful Explanatory Memorandum, and we shall look forward to being
informed of the Government's decision whether or not to opt in
to this proposal.
3.17 The proposal may have significant effects
on employment law and we view with particular concern the provisions
of Article 9 which, as the Minister explains, appear to impose
far wider liabilities than the current law.
3.18 We also share the Minister's concern over
a further attempt to introduce criminal penalties under the EC
Treaty, which we believe to be beyond the competence of the Community.
We note that the provisions of Article 10, are both highly prescriptive
(arbitrarily settling on infringements involving four illegal
workers as the threshold for criminal liability) and unacceptably
vague (making criminal liability turn on such concepts as "significantly
exploitative working conditions"). Even if the matter were
within Community competence, we do not consider this drafting
at all satisfactory in the context of a Directive where the Member
States have relatively little freedom to adapt the measure to
their own legal systems.
3.19 We shall hold the document under scrutiny
pending further information from the Minister.
7 OJ No. C 5, 10.01.96, p.1. Back
8
OJ No. C 304, 14.10.96, p.1. Back
9
OJ No. L 203, 01.08.02, p.1. Back
10
OJ No. L 328, 5.12.02, p.17. Back
11
OJ No. L 328, 5.12.02., p.1 Back
12
This provides for the adoption of measures on immigration policy
within the area of 'illegal immigration and illegal residence,
including repatriation of illegal residents'. Back
13
Article 4(3) provides that the obligation is to be considered
as fulfilled unless the document presented as a residence permit
or other authorisation 'is manifestly incorrect'. Back
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