“Without foreign labour, some industries cannot survive.” The comment made by France's solidarity minister Aurore Bergé in early September 2023 caused a stir. As France debates a new immigration bill, the idea of regularising undocumented workers in short-staffed industries is creating controversy. And yet the French government's plan is far from any opening of borders. Instead, it defends the idea that some forms of migration need to be drastically reduced, but that this does not necessarily concern labour migration. The line is very much in vogue, if the debates under way in other European countries are anything to go by.
"Politicians are trying to strike a balance between labour shortages on the one hand and immigration restrictions on the other", emphasises a report published in June 2023 by the European Trade Union Institute (ETUI). The study analyses the social-security systems of 26 European countries. In this context, the workers most affected are irregular. "As far as employment law is concerned, undocumented workers have, in principle, the same rights as any other employee", explains Marie-Laure Morin, a labour-law specialist and former volunteer with a migrant support association.
"However, if the employer terminates the job contract because the employee is in an irregular situation, that termination is by its very nature justified and the employee is not entitled to any compensation. Similarly, the employee does not benefit from maternity protection, or the protection of a trade union against dismissal if he or she is a staff delegate or elected representative. The irregularity of his or her situation takes precedence over the legal protections."
Status is the main source of rights for foreigners, and it is often linked to employment. This situation creates a high level of dependence on the employer.
A two-tier policy
Above all, the European Union has embarked on a policy that differentiates according to workers' occupations and qualifications. The aim is to boost legal immigration of highly-skilled workers – and to crack down on the irregular variety. "We want those who work, not those who take", was how France's interior minister Gérald Darmanin summed it up in December 2022. Among the key measures: the creation of a residence permit for "jobs in short supply", such as in hotels and catering, construction, cleaning or home help.
‘I never spent more than three months without working. But now that I have a work permit, many employers don‘t want to take me on, because it costs them more’ – Drissa , an undocumented worker
At European level, on 7 October 2021 the European Council adopted the "blue card" directive for highly qualified workers from third countries. This admission system, which has gradually been rolled out in the member states, is designed to attract and retain workers in sectors where there is a shortage. To achieve this, rules have been loosened so as to facilitate mobility within the EU, make family reunification more flexible, and simplify procedures for employers. Another recent reform is the single work and residence permit. In March 2023, the European Parliament's Committee on Civil Liberties adopted a text to update the directive in question. This would provide for a single administrative procedure for issuing permits to third-country nationals. The permits would then be extended to seasonal workers and those benefiting from temporary-protection status.
In its report published shortly afterwards (in June 2023), the ETUI pointed out that "certain elements of EU law, such as the Single Permit Directive, allow certain workers (e.g. those staying in the country for less than six months) to be exempted from their scope, and the Commission has identified no fewer than 18 member states as exercising this option".
According to the researchers, migrants from third countries who come to work in the European Union for short periods are deprived of healthcare, unemployment insurance and pension rights. As a general rule, social-security benefits are reserved for people who have been resident in a member state for at least one year. In Germany, for example, employers are not obliged to pay social-security contributions – as required by national law – for seasonal workers who do not work for more than 102 days. However, seasonal agricultural workers from Ukraine, Georgia or the Balkans are rarely covered by social security in their own country of origin.
European aspiration vs. national policies
The final say always lies with the member states, given the discretionary power they have over immigration and labour law. "Even in areas where there are European instruments regulating immigration (seasonal work, blue cards, intra-company transfers), third-country nationals are faced with a wide variety of situations in terms of their social-security rights", say the authors of the report. Yet regularisation and access to a long-term residence permit are far from commonplace. In Italy, as in France, protest movements by foreign workers sometimes lead to waves of regularisation. In France, around a hundred undocumented workers on the Olympic Games construction sites were recently regularised by the Seine-Saint-Denis prefecture, with the help of a local branch of the Confédération Générale du Travail (CGT). Having arrived in France fourteen years ago, Drissa had previously been working under a false identity that prevented him from paying contributions. "I never spent more than three months without working. But now that I have a work permit, many employers don't want to take me on, because it costs them more."
Against this background, one solution might be to organise migrant workers collectively and protect them at European level. In practice, however, trade unions point to the difficulty of implementation. The ETUI report mentions the case of the Swedish labour market, where workers are protected by collective agreements and trade-union membership. "But third-country nationals are often employed in sectors with a low coverage rate, or in companies that are not affiliated to employers' organisations, and therefore fall outside the scope of collective agreements. This potentially exposes these workers to substandard working conditions", point out the authors.
A relevant text has existed for decades: The International Convention on the Protection of the Rights of All Migrant Workers, 1990 is a reference treaty on this issue. "Nevertheless, the Convention is one of the most neglected texts in international human-rights law and no major Western destination country has ratified it", wrote Matthieu Tardis, co-founder of the Synergie Migrations association and a specialist in European migration and refugee policies, in 2019. According to this specialist, Western countries see the agreement as a pro-immigration instrument that undermines their sovereignty.
The migration pact presented by the European Commission on 23 September 2020 has not changed 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 deem to be priorities. While the pact is described as "soft law", it could have a progressive effect by encouraging countries to cooperate. Nonetheless, the states continue to dominate migration policies at national, regional, bilateral and therefore international level.
"This domination is fuelled by the rise in anti-immigrant sentiment, but also by the declining faith in multilateralism as a means of resolving international problems", comments Matthieu Tardis. He believes that Europe has slipped "from an approach based on human rights to one that focuses on the management of migratory flows".
"More and more politicians are blaming the law for being too protective of migrants", observes the researcher. "Despite welcoming 4 million Ukrainians in 2022, the EU is unwilling to consider any policy other than the one that has not worked for 20 years. The extreme politicisation of migration issues in a context of polarised societies is producing the institutional deadlock we are in", he concludes.