Documents considered by the Committee on 15 September 2010 - European Scrutiny Committee Contents

10   Seasonal Workers



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

Legal baseArticle 79(2)(a) and (b) TFEU; co-decision; QMV
Document originated13 July 2010
Deposited in Parliament16 July 2010
DepartmentHome Office
Basis of considerationEM of 28 July 2010
Previous Committee ReportNone
To be discussed in CouncilNo date known
Committee's assessmentLegally and politically important
Committee's decisionNot cleared; further information requested


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.


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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