9 Sanctions against employers of
illegally staying third country
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| Draft Directive providing for minimum standards on sanctions against employers of illegally staying third-country nationals
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| Legal base | Article 63(3)(b) EC; co-decision; QMV
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| Department | Home Office |
| Basis of consideration | EM of 16 February 2009
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| Previous Committee Report | None; but see (29771) 10770/08, (28656) 9871/07: HC 16-xxix (2007-08), chapter 7 (10 September 2008); HC 41-xxxv (2006-07), chapter 5 (17 October 2007; HC 41-xxxi (2006-07), chapter 4 (18 July 2007); HC 41-xxvii (2006-07), chapter 3 (27 June 2007)
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| To be discussed in Council | —
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| Committee's assessment | Legally and politically important
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| Committee's decision | Cleared
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Background
9.1 We considered earlier versions of this draft Directive
on 27 June, 18 July, 17 October 2007 and 10 September 2008. We
noted that it was proposed under Article 63(3)(b) EC[34]
and intended to provide for common sanctions and measures, including
criminal penalties, to be applied by Member States against employers
of third country nationals who are staying illegally.
Previous scrutiny
9.2 In past Reports we shared the Minister's concern over
this further attempt by the Commission to introduce criminal penalties
in Community legislation. We believed this to go beyond the competence
of the Community under the EC Treaty other than in the field of
environmental protection. We also considered the provisions of
the draft to be 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").
9.3 The then Minister of State for Nationality,
Citizenship and Immigration at the Home Office (Liam Byrne) informed
us by letter of 9 October 2007 that the Government had decided
not to opt into the Directive at that stage, but to work closely
with other Member States during negotiations to attempt to address
the Directive's major difficulties. The Minister added that if
the Government were successful, it would wish to seek approval
to opt in after adoption. We welcomed the decision not to opt
into the proposal and agreed with the Minister (for the reasons
we set out in our Reports of 27 June and 18 July 2007) that there
were major difficulties with this proposal.
9.4 In a subsequent Explanatory Memorandum of
29 July 2008, the Minister informed us that many Member States
had expressed concerns over the original proposal, and that an
attached revised version represented an attempt by the French
Presidency to introduce compromise suggestions for the most contentious
areas. The Minister provided a number of detailed observations
on the amendments made in the revised text, which were fully reported
by the Committee on 10 September 2008. We concluded that, although
some of the more problematical parts of the proposal had been
removed, there remained substantial difficulties; and that the
inclusion of criminal sanctions must make it unlikely that the
UK would wish to opt into the proposal. We looked forward to a
further update from the Minister on whether the proposal's major
difficulties had been sufficiently addressed in subsequent negotiations.
The Minster's Explanatory Memorandum of 16 February
2009
9.5 In his Explanatory Memorandum of 16 February
2009, the Minister of State for Borders and Immigration at the
Home Office (Phil Woolas) updates the Committee on the latest
draft of the Directive. He confirms that the Government has not
opted into the Directive because many provisions still cause concern
(he also notes in passing that many other obligations in the Directive
are already in force in the UK). The objectionable provisions
include: back payments of outstanding remuneration to illegal
migrant workers; the potential for temporary residence permits
for illegal migrant workers assisting with criminal proceedings
against their former employers; a broadened definition of "employer"
in Community legislation; and a notification requirement which
the Government believes would place an unnecessary burden on employers.
9.6 The Minister also reports that the UK's broader
concerns about the use of criminal penalties in a first pillar
Community instrument outside the field of environmental protection
had not been addressed. Article 10 of the final draft of the Directive
requires Member States to ensure that employment of illegally
staying third-country nationals "constitutes a criminal offence
when committed intentionally, in each of the following circumstances
as defined by national law:
a) the infringement continues or is persistently
repeated;
b) the infringement is in respect of the simultaneous
employment of a significant number of illegally employed third-country
nationals;
c) the infringement is accompanied by particularly
exploitative working conditions."
9.7 A further two sub-paragraphs refer to those
who illegally employ third-country nationals in the knowledge
that they are victims of human trafficking and those who illegally
employ minors from third countries.
9.8 In terms of timetable, the Explanatory Memorandum
states that the European Parliament had already agreed the final
text proposed by the Council, but had sought an additional statement
confirming that the provisions on sub-contracting in Article 9
were without prejudice to any provisions on this issue to be adopted
in future legislation. This was likely to be agreeable to the
Council and the Minister expected the Directive to reach a first
reading agreement at the next plenary session of the European
Parliament. In further correspondence the Minister's officials
have confirmed that the Directive was agreed in the European Parliament
on 19 February but is yet to be adopted by the Council.
Conclusion
9.9 We thank the Minister for his Explanatory
Memorandum. We note that the draft proposal has changed little
since we last reported in September 2008.
9.10 Of most concern to us is the confirmation
that criminal penalties will be included in a Community instrument
that does not address environmental protection. And even if there
were competence under the chosen legal base (Article 63 EC) to
include criminal penalties, the proposal would not, in our view,
satisfy the criteria established by the European Court of Justice
in Cases Nos. C176/03 and C440/05 that there must be sufficient
evidence that criminal law measures are essential in order to
meet the policy objective. We also consider terms such as "a
significant number of illegally employed third-country
nationals" and "the infringement is accompanied by particularly
exploitative working conditions" to be unacceptably vague
in circumstances where they are used to invoke criminal penalties.
9.11 We therefore welcome the Government's
decision not to opt into this Directive. This is in our view a
regrettable further encroachment into Member State autonomy in
the field of criminal law, and we ask the Minister to guard against
further encroachments.
9.12 Given the decision not to opt in, we
now clear the Directive from further scrutiny. Should, however,
the Government change its mind and decide to opt in, we ask it
to deposit a further Explanatory Memorandum, which would then
be subject to further scrutiny.
9.13 Lastly, we are concerned by the timing
of the Minister's Explanatory Memorandum, which was received by
the Committee after agreement had been reached in the Council.
Notwithstanding there had been little change to the draft, and
notwithstanding the Government's decision not to opt in, we impress
upon the Minister the importance of giving the Committee sufficient
time for meaningful scrutiny of a proposal, so that any comments
we may have can be considered by the Government before final agreement
in the Council. This is particularly true of legislation where
a first reading deal is likely.
34 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
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