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“Without foreign labor, certain industries cannot survive. ” THE comment done by that of France Solidarity Minister Aurore Bergé caused a sensation in early September 2023. As France debates a new immigration bill, the idea of regularizing undocumented workers in low-staffed sectors is causing controversy. And yet, the French government’s project is far from opening the borders. Rather, it defends the idea that certain forms of migration must be drastically reduced, but that this does not necessarily concern labor migration. This formula is very popular, if we are to believe the ongoing debates in other European countries.
“Politicians are trying to find a balance between the labor shortage on the one hand and immigration restrictions on the other,” underlines a report published in June 2023 by the European Trade Union Institute (ETUI). The study analyzes the social security systems of 26 European countries. In this context, the workers most affected are irregular workers. “In terms of labor law, undocumented workers in principle have the same rights as any other employee,” explains Marie-Laure Morin, specialist in labor law and former volunteer of a migrant aid association.
“However, if the employer terminates the employment contract because the employee is in an irregular situation, this termination is by nature justified and the employee is not entitled to any compensation. Likewise, the employee does not benefit from maternity protection, nor from the protection of a union against dismissal if he is a staff representative or elected. The irregularity of his situation takes precedence over legal protections.”
Status is the main source of rights for foreigners and is often linked to employment. This situation creates a high level of dependence on the employer.
A two-speed policy
Above all, the European Union has launched a differentiated policy according to the professions and qualifications of workers. The aim is to boost legal immigration of highly skilled workers – and crack down on irregular immigration. “We want those who work, not those who take”, summarized the Minister of the Interior Gérald Darmanin in December 2022. Among the key measures: the creation of a residence permit for “jobs in shortage”, as in the ‘hotel. and catering, construction, cleaning or home help.
“I have never gone more than three months without working. But now that I have a work permit, many employers don’t want to hire me because it costs them more.» – Drissa, an undocumented worker
At European level, on October 7, 2021, the European Council adopted the “blue card” directive for highly qualified workers from third countries. This admission system, gradually deployed in Member States, aims to attract and retain workers in shortage sectors. To achieve this, rules have been relaxed to facilitate mobility within the EU, make family reunification more flexible and simplify procedures for employers. Another recent reform concerns the single work and residence permit. In March 2023, the European Parliament’s Civil Liberties Committee adopted a text to update the directive in question. This would provide for a single administrative procedure for issuing permits to third-country nationals. Permits would then be extended to seasonal workers and those with temporary protected status.
In its report published shortly afterwards (in June 2023), the ETUI highlighted that “certain elements of European law, such as the Single Permit Directive, allow certain workers (for example those who stay in the country for less than six months) to be exempt”. of their scope, and the Commission identified no less than 18 Member States which exercised this possibility.
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According to researchers, migrants from third countries who come to work in the European Union for short periods are deprived of health care, unemployment insurance and pension rights. As a general rule, social security benefits are reserved for people who have resided in a Member State for at least one year. In GermanyFor example, employers are not obliged to pay social security contributions – as required by national law – for seasonal workers who do not work more than 102 days. However, seasonal agricultural workers in Ukraine, Georgia or the Balkans are rarely covered by the social security of their own country of origin.
European aspiration versus national policies
The last word always rests with the Member States, given the discretionary power they have in matters of immigration and labor law. “Even in areas where European instruments regulating immigration exist (seasonal work, credit cards, intra-company transfers), third-country nationals face very diverse situations in terms of their social security rights” , say the authors of the report. However, regularization and access to a long-term residence permit are far from commonplace. In Italylike in France, protest movements of foreign workers sometimes lead to waves of regularization. In France, around a hundred undocumented workers on Olympic construction sites have recently been regularized by the prefecture of Seine-Saint-Denis, with the assistance of a local branch of the General Confederation of Labor (CGT). Arriving in France fourteen years ago, Drissa previously worked under a false identity which prevented him from contributing. “I’ve never gone more than three months without working. But now that I have a work permit, many employers don’t want to hire me because it costs them more.”
In this context, one solution could be to collectively organize migrant workers and protect them at European level. In practice, however, the unions highlight the difficulty of implementation. The ETUI report mentions the case of Swedish labor market, where workers are protected by collective agreements and union membership. “But third-country nationals are often employed in sectors with low coverage rates or in companies that are not affiliated to employers’ organizations and therefore fall outside the scope of collective agreements. This potentially exposes these workers have substandard working conditions,” the authors point out.
A relevant text has existed for decades: The International Convention on the Protection of the Rights of All Migrant Workers, 1990 is a reference treatise on this question. “Nevertheless, the Convention is one of the most neglected texts of international human rights law and no major Western destination country has ratified it,” wrote Matthieu Tardis, co-founder of the Synergie Migrations association and specialist in European policies on migration and refugees, in 2019. According to this specialist, Western countries see the agreement as a pro-immigration instrument which undermines their sovereignty.
Political exploitation
The migration pact presented by the European Commission on September 23, 2020 did not change the situation either. It establishes a legally non-binding framework for cooperation and proposes a series of actions from which Member States can choose to achieve the objectives they consider to be priorities. Even though the pact is described as “soft law”, this could have a progressive effect in encouraging countries to cooperate. Nevertheless, states continue to dominate migration policies at the national, regional, bilateral and therefore international levels.
“This domination is fueled by the rise in anti-immigration sentiment, but also by the decline in confidence in multilateralism as a means of resolving international problems,” comments Matthieu Tardis. He believes that Europe has moved “from an approach based on human rights to an approach focused on the management of migratory flows”.
“More and more politicians are criticizing the law for being too protective of migrants,” observes the researcher. “Although it welcomes 4 million Ukrainians in 2022, the EU is not willing to consider a policy other than the one that has not worked for 20 years. The extreme politicization of migration issues in a context of polarized societies produces the institutional impasse in which we find ourselves,” he concludes.
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