A European regular immigration policy cannot exist without a credible policy on irregular migration. Starting from this premise a common immigration policy is being built. It is certainly, easier, in a Europe of twenty-seven, to build consensus on punitive measures than on measures promoting legal immigration. (This is especially the case when the nature of the decision-making process is clearly against it, being as it is, based on unanimity rather than on a specific majority. The ratification of the Treaty of Lisbon could change things). But that is not reason enough to justify an inadequate approach to understanding the complex phenomenon of immigration. Prioritising the fight against illegal immigration, without having opened enough legal channels to economic immigration is an economic and social loss. It is hypocrisy to preach a needs based approach and to then approve an action plan for legal migration (COM (2005) 669) which leaves out the broad categories of semi-skilled and low skilled workers needed for the domestic market. In the name of the much-vaunted global approach, and the principle of inclusiveness, the argument should reversed: a European illegal immigration policy cannot exist without a credible regular immigration policy. Priority should be given to this.
The proposed sanctions directive for employers who recruit illegal immigrants, passed in Parliament on February 19, is another sign pointing in the opposite direction. The directive on the return of migrants is a legitimate measure (the right of a State to expel foreigners is an inherent attribute of the principle of sovereignty, though tied to the respect of human rights and undeniable in terms of the right to fight the black economy), but mistaken, in as much as it is ineffective against a phenomenon that cannot be suppressed.
The declared purpose of the sanctions directive is to reduce irregular immigration. The idea is to reduce employment opportunities so as to eliminate an important ‘pull’ factor for irregular immigrants. In fact, the effect of these sanctions on the number of illegal migrants is doubtful. The same impact assessment, upon which the proposal is based, points out that in most countries where systems of sanctions are already in place the number of irregular workers is still considerable.
A second aim could be to counter the exploitation of irregular workers. However this is even more clearly contradicted by the impact assessment. Employers recruit illegal workers because they are vulnerable due to the fear of being expelled, and are thus flexible. If the authorities increase controls on the labour market, these workers will seek to increase their “invisibility”, and in so doing will be even more at the mercy of their exploiters. Moreover these employers will use different stratagems to reduce the risk of being punished such as subcontracting or requiring workers to obtain false documents. The sanctions thus risk increasing the rate of exploitation rather than decreasing it.
The proposed directive also contains certain provisions concerning the rights of irregular workers: the automatic reimbursement of pay not received due to exploitation based on a comparison with the minimum wage, the opportunity to lodge a complaint, the possibility for third parties to defend workers’ rights and the ability to secure a temporary Residence Permit in the case of particularly serious exploitation. These safeguards must remain in the final text. But they will not limit the damage except in irrelevant ways. The directive aims to combat illegal immigration by relying on the Residence Permit but for illegal migrants this is a very good reason to stay as far as possible away from the authorities. It is not possible to think that this will encourage them to take steps to enforce their rights as employees. Moreover, requiring employers to check the Residence Permits of all third country citizens, including regular residents, is likely to further increase, intentionally or unintentionally, the rate of racial and national discrimination. Finally there are doubts arising about how to implement the directive. The member states with the highest rates of illegal immigration are also those where the inspection systems against undocumented labour are insufficiently funded. Prioritising the fight against the recruitment of irregular workers, as intended in the directive, might divert resources from more general controls on tax fraud and working rights.
In the light of these criticisms, the sanctions in the directive seem designed to weigh more heavily on illegal workers, who will face increased exploitation, than on the employers who are in theory directly affected. There remains concern about the actual effectiveness of the directive, which only establishes “minimum standards.” As always, much of the criticism will be reserved for the way individual member states implement this directive.
Translated by Chris. B.