“The crisis consists precisely in the fact that the old is dying and the new cannot be born; in this interregnum a great variety of morbid symptoms appear”.
– Antonio Gramsci, Prison Notebooks
EU migration policies are currently trapped in an interregnum, with policy makers at a standstill between restrictive labour migration schemes and a growing labour demand in medium and low-wage sectors. Unable to reconcile the scarcity of regular channels currently offered for migrants to work in the European Union with the demands of the labour market, as Gramsci forecasted, a variety of morbid symptoms is now emerging. Temporariness is one of them.
Faced with the urgency of meeting the needs and choices of both migrant workers and their employers, EU policy makers have been so far unable not only to provide for realistic channels for labour migration, but also to acknowledge the fact that individual migration projects evolve in time and that, often, a project of temporary or circular migration may develop, for different reasons, into a longer-term migration project or permanent settlement. Rather than offering realistic possibilities for individuals to adjust their migration projects, current EU migration policies fuel irregularity as they are founded on the anachronistic assumption that migration is a temporary phenomenon, thus deemed to be contained, limited and reduced in time. In this context, temporariness has now become a constant of EU migration policies.
Temporariness: a constant factor in the EU acquis on legal migration
The current EU acquis on regular migration introduces provisions only for determined categories of migrant workers, namely high-earning professionals and migrants admitted on short-term contracts. As part of the current legal framework, opportunities for migrants to work in the European Union are extremely limited and characterised by temporary admissions and restrictive requirements to be met by the applicants.
While the conclusions of the Tampere European Council in 1999 included some political commitments concerning fair treatment of third country nationals, acknowledging the need for approximation of national legislations on the conditions for admission and residence of third country nationals, the following Hague Programme in 2004 called on the European Commission to present a policy plan on legal migration in order to “respond promptly to fluctuating demands for migrant labour in the labour market”. A Policy Plan on Legal Migration was thus adopted by the European Commission in December 2005 and proposed four sectoral directives respectively on highly skilled workers, on seasonal workers, on paid trainees and on posted workers in multinational companies. The four sectoral directives listed in the 2005 Policy Plan on Legal Migration still constitute the existing EU acquis on labour migration, characterised by temporary frameworks granted to migrant workers and by restrictive requirements for their admission in the European Union.
A) The Blue Card Directive: welcoming “highly-skilled workers”
Confirming a restrictive approach to labour migration, a directive on the conditions of entry and residence of third-country nationals for the purposes of highly qualified employment (Directive 2009/50, “Blue Card Directive”) only applies to “highly-skilled” migrant workers. A new review of the Blue Card Directive, following a European Commission proposal for a directive on the conditions of entry and residence of third-country nationals for the purposes of highly skilled employment published on 7 June 2016, maintains a restricted application to workers who are “highly skilled”. It is to be noted that the adoption of the first Blue Card Directive generated a lively debate, in particular as regards to the definition of “highly-skilled worker” and to the already existing national schemes aimed at attracting qualified foreign labour. This remains one of the issues not sufficiently addressed as part of the new proposal. Among the necessary criteria to be admitted, the requirement of being in possession of a work contract or a binding job offer of at least six months in a Member State, with a salary of at least between 1.0 and 1.4 times the national average gross salary, does not seem to be appropriate in order to assess applicants’ values and to properly define “highly skilled work”. Highly qualified specialists may also find the conditions offered to be too restrictive: the 24 months initial validity of the Blue Card is for instance perceived as too low, insufficient for successful integration and once again confirming the “temporariness” around which all EU migration policies are built.
B) The recast Directive on Students, Researchers, Trainees and Au-Pairs: a small step towards broader instruments for regular migration
Only recently, the recast directive on the Conditions of entry and residence of third-country nationals for the purposes of research, studies, pupil exchange, remunerated and unremunerated training, voluntary service and au pairing of 16 May 2016 introduced a much needed broadening of instruments establishing a legal framework for third country nationals to enter and reside in the EU under equal regulated conditions. The recent recast created for example the possibility for graduates and researchers, after finalisation of research or studies, to seek a job or to set up a business, thus providing for some, although limited, access to longer-term work in the European Union.
C) The Seasonal Workers’ Directive: incentives and safeguards to “prevent temporary stay from becoming permanent”
Regulating the admission of third-country seasonal workers in the European Union, Directive 2014/36 also known as “Seasonal Workers’ Directive”, to be transposed by Member States by 30 September 2016, aims at regulating the admission of seasonal workers with a view to enhancing the EU’s economic competitiveness, optimizing the link between migration and development, while guaranteeing decent working and living conditions for the workers, alongside incentives and safeguards to “prevent overstaying or temporary stay from becoming permanent”. Incentives and safeguards are thus offered by the EU legislator, not only to prevent irregular stay once a visa for seasonal work has expired, but also to prevent permanent stay, with settlement and integration seen as an undesirable outcome to be avoided. In addition, the scope of the Directive is limited to those who are not yet on the territory of the European Union. This provision prevents undocumented migrants or asylum seekers whose application have been rejected, to be regularly employed, thus potentially fuelling exploitation and abuse of vulnerable migrant workers.
The EU Migration Agenda adopted in May 2015 reiterates the need to establish regular migration channels for work, and recognises the long-term economic and demographic challenges the European Union is currently facing, with its ageing population and a declining working-age population. Although recognising that “migration will increasingly be an important way to enhance the sustainability of our welfare system and to ensure sustainable growth of the EU economy”, the EU Migration Agenda fails however, to refer to medium and low-wage work sectors and keeps targeting EU labour migration policies at “highly-skilled workers”.
Why temporary labour migration often equals to precarious rights for migrant workers?
Although migrant workers currently make an important social and economic contribution to European societies, insufficient regular migration channels to properly address labour demand, difficulty to acquire a long-term residence status and temporary work permits tied to one employer expose migrant workers to increased vulnerabilities, abuses and labour exploitation, often pushing them into irregularity with no access to basic rights, including justice and redress mechanisms.
Throughout the European Union countries, work permits for low-wage sectors are highly restricted. Where they are available, they are usually tied to one employer, creating a power imbalance and dependency on the employer. This relationship exposes migrant workers to exploitation and abuse, including under-payment and non-payment of wages, and can easily result in migrants losing their right to work and reside in the European Union. Under such conditions, access to redress and justice for violations of worker’s rights are highly limited.
Despite their increased exposure to ill-treatment, irregular migrant workers are often at significant risk of arrest and deportation if they seek assistance from the police and labour authorities, as their irregular status frequently supersedes their need for protection. The structural barriers that prevent vulnerable migrant workers from pursuing legal remedies and bringing their perpetrators to justice contribute to a worrying culture of impunity for exploitation of undocumented migrants in the European Union.
The shooting of Bangladeshi migrant workers during a pay dispute for outstanding wages on a strawberry plantation in Manolada, Greece on 17 April 2013, brought to light the plight of thousands of migrants mainly working in the agricultural sector. A group of 155 undocumented Bangladeshi strawberry pickers were shot at, resulting in 35 who were wounded, during a pay dispute on the plantation in Nea Manolada, Greece on 17 April 2013. The Greek Mixed Jury Court of Patras acquitted two of the four men on trial for shooting and injuring 35 of the 155 migrant workers in its final determination on the case on 30 July 2014. None of the four accused were found guilty of human trafficking and no sanctions were given for the charge of employing undocumented migrant workers nor any back wages paid to the workers. Two of the perpetrators were handed a jail term of 14 years and seven months for serious bodily harm, and of eight years and seven months as an accessory to the crime respectively. Yet the penalties were immediately converted into money fines and the appeals have had suspensive effect. The decision provoked criticism, both at national level within the Greek Parliament and at EU level. The public prosecutor, Efterpi Koutzamani, requested a copy of the verdict to be handed to the Supreme Court for its review. The Greek Supreme Court reviewed the decision and considered it should not be overturned. The Greek Council for Refugees (GCR), which represented the plaintiffs for the civil claims, appealed to the European Court of Human Rights (ECtHR) on behalf of 42 of the victims. The case is currently still pending and the European Court of Human Rights (EctHR) is expected to examine the complaint over the violation of Article 4 of the European Convention on Human Rights prohibiting slavery and forced labour. The shocking incident was quickly picked up by social media and therefore rapidly gained public attention leading to more media coverage revealing subhuman living conditions in a racist environment.
The situation of violence, abuse and labour exploitation often coincides, especially in some EU member states, with increasingly worrying xenophobic public and political sentiment, which can, in turn, fuel violence by employers and discrimination by service providers, police and labour authorities.
In November 2012, on the island of Salamina, near Piraeus, Greece, Walid Talib, a young undocumented bakery worker, was chained up and tortured for 18 hours in a stable by his employer, after having claimed his due unpaid wages. He was found brutally beaten, bound and chained to a lamppost. He was taken to hospital, where he was immediately arrested by the police, and detained for four nights for being undocumented. On 10 July 2015, four men from the island of Salamina were sentenced for beating and torturing Walid Talib. The men were found guilty of abduction, robbery and grievous bodily harm. However, the Court did not examine the racist motivation of the attack and argued that relevant legislative provisions in force at the time of the attack have now been repealed. Walid’s former employer, Giorgos Sgourdas, was sentenced to 13 years and two months in prison. The other three men were released pending their appeals against the sentences of, respectively, 5-year imprisonment for the employer’s son and 10-year imprisonment for each of the other two accomplices.
Yet, the crude reality that EU policy makers seem not to be ready to acknowledge is that what allows such massive exploitation and abuse to take place within countries and communities where labour rights are often taken for granted are precisely the restrictive and temporary conditions governing the entry and employment of migrant workers in the European Union. Policies are generally designed to control migrant workers rather than to protect their workplace and fundamental rights.
A clear example of the primacy of migration control over migrants’ rights in the EU acquis is the Employers’ Sanctions Directive adopted in May 2009. While the directive establishes common minimum standards that prohibit the employment of third country nationals irregularly staying and provides for sanctions against employers, its stated aim is to counter what is considered to be one of the “pull factors” for irregular migration: the possibility of finding a job without having a work permit. The directive requires employers to check whether the recruited employee is in possession of a residence permit and to inform the competent authorities. The directive also provides a mechanism for payment of arrears, of all unpaid wages, and an amount equal to any social security contributions and any tax that the employer should have paid.
Although it establishes several safeguards for migrants’ rights, the directive does not however target the reasons that underlie the vulnerability of migrants. The directive’s impact assessment itself highlights that one possible side effect could be the deterioration of irregular migrants’ vulnerability and exploitation, as they may be forced even more in the underground economy and suffer greater control of their activities and movements from employers not complying with the provisions. In this context, it also remains to be seen whether the stated aim of the directive – i.e. to reduce the demand for irregular work – is being achieved, as repercussions for employers remain very limited and facilitation of complaints highly insufficient.
How to abandon the interregnum of temporariness?
According to the OECD, by 2060, the working age population in Europe will reduce by 50 million. Even counting on the success of current temporary migration policies, these will not be enough to mitigate the scenario forecasted by the OECD, in the absence of a structured, long-term, labour migration policy reform offering adequate channels for both short and longer-term labour migration at all skills levels and work sectors. Current statistics show that the labour markets of EU member states are increasingly restrictive to third country migrant workers: the total number of first time residence permits for all remunerated activity reasons (not differentiating for the type of employment, skill level or sector) decreased from 786,892 in 2008 to 572,414 in 2014.
It would be mistaken to believe that migration is a temporary phenomenon and to regulate it uniquely as such. While temporary migration can be beneficial for both migrants and host communities, temporary and restrictive migration schemes can only offer a short-term response to the need of a better migration management in Europe. Other sustainable, longer-term options for labour migration should urgently be offered for third-country nationals to work and successfully integrate in the European Union.
Rather than imposing higher requirements and limiting integration prospects of migrant workers, EU labour migration policies should fully embrace labour migration, by offering adequate and realistic channels for regular migration, recognising the right of migrants to integrate, form relationships in new countries and fully contribute to host societies in both the short and longer-terms.