10 Seasonal Workers
| (31801)
12208/10
COM(10) 379
+ ADDs 1-2
| Draft Directive on the conditions of entry and residence of third country nationals for the purpose of seasonal employment
Commission staff working documents: impact assessment and summary of the assessment
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| Legal base | Article 79(2)(a) and (b) TFEU; co-decision; QMV
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| Document originated | 13 July 2010
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| Deposited in Parliament | 16 July 2010
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| Department | Home Office
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| Basis of consideration | EM of 28 July 2010
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| Previous Committee Report | None
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| To be discussed in Council | No date known
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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
10.1 In November 2004, the European Council approved a five-year
programme on freedom, security and justice in the EU (the Hague
Programme) which, among other things, invited the Commission:
"to present a policy plan on legal migration including admission
procedures capable of responding promptly to fluctuating demands
for migrant labour."[21]
The Commission responded by publishing a Policy Plan on Legal
Migration in December 2005 which set out a "road-map"
for the adoption of a general framework Directive establishing
the rights of third country nationals legally resident and employed
in a Member State, and four specific Directives determining the
conditions and procedures for admitting certain categories of
third country economic migrants, including those seeking temporary,
seasonal work in a Member State. The proposals in the Policy Plan
supplemented existing EU legislation on certain categories of
third country national, such as students, researchers, and long-term
residents.[22]
10.2 The previous Committee questioned the need
to establish an EU policy on economic migration and stated that
any future legislative proposals on migrants would be subject
to particularly searching scrutiny.[23]
Progress on implementing the Policy Plan since then has been slow.
Only one Directive — on the entry and residence of highly
qualified third country workers — has been adopted and was
the subject of a debate in the European Committee on 17 March
2008.
10.3 The Stockholm Programme, agreed by the European
Council last December as the successor to the Hague Programme
for the period 2010-14, gave renewed impetus to the Policy Plan
by calling on the Commission and Council to continue to implement
it.[24]
10.4 Since the entry into force of the Amsterdam
Treaty in May 1999, EU legislation on immigration matters does
not apply to the UK unless the Government expressly opts in. So
far, the Government has chosen not to opt into any of the aforementioned
EU legislation on the legal migration of third country nationals.
10.5 Article 79(1) of the Treaty on the Functioning
of the European Union (TFEU) provides for the development of a
common EU immigration policy to ensure the efficient management
of migration flows, fair treatment of legally resident third country
nationals, and measures to prevent and combat illegal immigration
and trafficking in human beings. The development of the common
EU immigration policy must not, however, affect "the right
of Member States to determine volumes of admission of third country
nationals coming from third countries to their territory in order
to seek work" (Article 79(5) TFEU).
The draft Directive
10.6 The legal base for the draft Directive is
Article 79(2)(a) and (b) TFEU which envisages the adoption of
measures on the conditions of entry and residence of third country
nationals and the definition of rights applicable to those legally
resident in a Member State.
10.7 The purpose of the draft Directive is to
establish a flexible procedure, based on common EU rules, for
the entry, temporary residence and employment of third country
seasonal workers and to define the rights of those admitted. It
only applies to third country nationals resident outside the EU
who seek seasonal employment within a Member State. The main provisions
of the draft Directive are as follows:
- applications for admission
to take up seasonal employment must be dealt with in a single
procedure and include documentary evidence of a valid work contract
or a binding job offer specifying the rate of pay and working
hours, a valid travel document, and sickness insurance;
- there must be proof that the seasonal worker
has sufficient resources for the duration of his or her stay and
employers must demonstrate that adequate accommodation is available;
- Member States may refuse an application for admission
on various grounds, including a decision to limit the number of
third country nationals admitted (where, for example, there are
national quotas) or to give preference to their own or other EU
nationals or to third country nationals already legally resident
in their territory;
- third country nationals whose applications meet
the conditions for admission and have been approved by the Member
State in which they are seeking seasonal employment must be issued
with a seasonal worker permit;
- a decision on admission should be taken within
30 days of the lodging of an application and, in the event of
refusal, withdrawal or non-renewal of a seasonal worker permit,
must include written reasons and be susceptible to legal challenge;
- the seasonal worker permit authorises residence
for a maximum of six months per calendar year after which the
holder is required to return to a third country;
- the permit entitles the holder to certain rights
concerning working conditions and equal treatment as regards freedom
of association, membership of a union or other similar body, access
to goods and services, co-ordination of social security systems
and payment of statutory pensions;
- Member States must either make available a "multi-seasonal
worker permit" covering up to three seasons or a "facilitated"
procedure to enable third country seasonal workers admitted in
previous years to seek re-admission;[25]
and
- Member States must ensure that sanctions are
applicable to employers who are in breach of the Directive and
that there is an effective procedure for seasonal workers, or
third parties acting on their behalf, to pursue complaints concerning
compliance with the Directive.
10.8 According to the Commission's explanatory
memorandum accompanying the draft Directive, EU action in this
area is justified because most Member States will continue to
need to source seasonal workers from outside the EU and differences
in the status and rights accorded by the host Member States may
distort migratory flows. There is a close correlation between
sectors of the economy where the demand for seasonal workers is
high, such as agriculture and tourism, and the incidence of illegal
employment. There is also significant evidence of exploitation
and poor working conditions. The Commission anticipates that,
by providing a flexible EU-wide admissions procedure and a secure
legal status for third country seasonal workers, there will be
less incentive for illegal entry and employment, especially within
the Schengen free movement area. Common EU rules would also facilitate
co-operation with countries of origin and complement EU development
policy which seeks to encourage circular migration.
The Government's view
10.9 The Minister of State at the Home Office
(Damian Green) says that the UK does not currently operate bespoke
migration schemes for seasonal workers from outside the EU. Although
the UK has special arrangements for seasonal agricultural workers,
since 1 January 2007 eligibility for admission under the UK's
Seasonal Agricultural Workers Scheme (SAWS) has been limited to
nationals of Bulgaria and Romania who still remain subject to
labour market restrictions under the transitional arrangements
governing their accession to the EU. Other types of seasonal work
outside the agricultural sector are covered by the UK's Points
Based System. Tier 3 of the Points Based System makes provision
for implementing a scheme for the temporary admission of low-skilled
economic migrants from outside the EU, but Tier 3 remains suspended
while labour market needs can be met from within the EU.
10.10 The Minister explains that UK participation
in the draft Directive would not require the UK to admit third
country seasonal workers and so should not affect the Government's
commitment to introduce an annual limit on economic migration
from outside the EU. UK participation in the draft Directive would,
however, have implications for UK Immigration Rules under Tier
2 and Tier 3 of the Points Based System for the following reasons:
- the definition of a seasonal
worker as one whose employment is "dependent on the passing
of the seasons" encompasses a wider category of temporary
workers than is currently covered under SAWS;
- highly-skilled workers are not excluded from
the scope of the Directive and might, therefore, gain admission
to the UK without meeting the more onerous qualifying criteria
under Tier 2 of the Points Based System which require a licensed
sponsor and accumulation of points based on qualifications and
prospective earnings;
- the admission criteria might constrain the UK
in determining what (additional) requirements to impose if the
Government were to launch a Tier 3 scheme for seasonal workers
in the future, such as requiring applicants to be sponsored by
an employer licensed with UKBA or providing for the use of contracted
operators; and
- provisions on facilitating the re-entry of seasonal
workers, either by issuing a multi-seasonal worker permit or by
giving preference to those previously admitted as seasonal workers,
could limit Member States' flexibility to revise annual caps or
quotas for economic migrants.
10.11 There are other aspects of the draft Directive
which the Minister considers require further clarification. These
include the degree of labour market access conferred by the seasonal
worker permit (whether, for example, employment is limited to
the work specified in the work contract or binding job offer produced
as a condition of admission) and whether the existing provision
for administrative review of adverse decisions under the Points
Based System satisfies the requirement in the draft Directive
that a refusal, withdrawal or non-renewal of a seasonal worker
permit must be open to legal challenge.
10.12 The Minister states that the provisions
of the draft Directive on equal treatment would require the UK
to provide a greater degree of access to social security benefits
(notably income-related social security benefits, such as job-seekers'
allowance, as well as family benefits) than is currently the case
for third country nationals subject to immigration control in
the UK. This would have financial implications for the UK but
these have not yet been quantified.
10.13 The Minister is satisfied that the draft
Directive complies with subsidiarity on the basis that decisions
taken by one Member State on the rights of third country nationals
could affect other Member States and distort migratory flows.
He also suggests that labour mobility within the EU, especially
from "new" to "old" Member States, "may
cause, or aggravate, a shortfall in seasonal labour in the source
countries which needs to be met from outside the EU, and that
this inter-relationship argues for EU-level measures to manage
the admission of seasonal workers from outside the EU."[26]
10.14 The Minister indicates that the Government
must decide by 14 October whether to exercise its right to opt
in to the draft Directive and that the key criteria are likely
to be the "implications for control of immigration, affordability,
implications for the balance of UK and EU competence and issues
of ECJ jurisdiction." Moreover, "the Government will
not opt into a measure which is at odds with its approach to limits
on economic migration." [27]
While acknowledging that the draft Directive includes provisions
which seek to ensure that seasonal work is temporary, the Minister
also expresses some doubt as to how effective these will be in
helping to combat illegal immigration and suggests that additional
levers may be needed.
Conclusion
10.15 We agree that Article 79(2)(a) and (b)
TFEU appear to provide an appropriate legal base for the draft
Directive. We are less certain that the measure respects the principle
of subsidiarity. The draft Directive would establish a common
procedure for temporary admission to a single Member State for
the purpose of seasonal employment and define the status and rights
of those admitted. It would not include any provision for movement
between Member States. While the introduction of a single procedure
may provide welcome flexibility for employers in some Member States,
as well as greater certainty and security for third country applicants,
it is not apparent that the objectives of the draft Directive
are of sufficient magnitude to justify EU action.[28]
10.16 The Commission's own impact assessment
accompanying the draft Directive acknowledges that the legal framework
for entry and employment in a particular Member State is only
one of a number of factors influencing the decision to migrate.[29]
While EU action might be justified if differences in national
rules on the admission and status of third country seasonal workers
created a real risk of unfair competition or labour market distortions
within the internal market, the Commission recognises that such
a risk is likely to be negligible, given the relatively low number
of seasonal workers involved. The main justification for the draft
Directive would therefore seem to be a desire to introduce common
rules to avoid exploitation of third country seasonal workers.
While laudable, it is not evident that action at EU level is necessary
to achieve this. We should therefore be grateful for further information
from the Minister, within 15 days, on whether, in light of the
Commission's impact assessment, he still considers that the draft
Directive complies with the principle of subsidiarity, so that
we can consider this matter further at our next meeting.
10.17 We note that the Government is consulting
interested parties before deciding whether to opt into the draft
Directive and ask the Minister to inform us of the outcome
of those consultations and of the principal factors which have
informed the Government's decision on whether or not to opt in.
10.18 In the event that the Government does
decide to opt into the draft Directive, it is likely that the
Committee will recommend this document for debate in European
Committee. We also ask the Minister to provide further information
on the cost implications for the UK if the Government does decide
to opt in, particularly as regards eligibility for social security
benefits.
10.19 Pending the Minister's reply, we retain
the draft Directive under scrutiny.
21 European Council 4/5 November 2004, Presidency Conclusions,
Annex 1, para 1.4. Back
22
Directive 2003/86 on the right to family reunification; Directive
2003/109 on the status of third country nationals who qualify
as long-term residents; Directive 2004/114 on the conditions of
admission of third country nationals for the purposes of study,
pupil exchange, unremunerated training or voluntary service; and
Directive 2005/71 on a specific procedure for admitting third
country nationals for the purpose of scientific research. Back
23
(27145) 5052/06: see HC 34-xviii (2005-06), chapter 20 (8 February
2006). Back
24
European Council 10/11 December 2009, see paragraph 6.1.3 of the
Stockholm Programme, Council document 17024/09. Back
25
Draft Directive, Article 12. Back
26
Minister's Explanatory Memorandum, page 2, para 13. Back
27
Minister's Explanatory Memorandum, page 2, para 15. Back
28
Article 5(3) of the Treaty on European Union states that the Union
shall act "only if and insofar as the objectives of the proposed
action cannot be sufficiently achieved by the Member States, either
at central level or at regional and local level, but can rather,
by reason of the scale or effects of the proposed action, be better
achieved at Union level". Back
29
Impact assessment, ADD 1, para 1.1.4 and 2.2.1. Back
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