ETUC position regarding European Commission's proposals on legal and 'illegal' migration

Brussels, 05-06/12/2007

1. Introduction



This position builds on previous ETUC resolutions and positions on this issue, adopted since its Prague congress 2003, including the:

•  Action Plan October 2003;
•  ETUC response to the Green Paper on an EU approach to managing economic migration in March 2005;
•  Transitional measures, December 2005;
•  joint position of ETUC, Solidar and Picum of Spring 2007
•  and especially Chapter 2 of the Action plan as adopted at the ETUC congress in Seville in May 2007 (Congress document Seville).

In 2004, the Council of Ministers adopted the so-called ‘The Hague programme’ on legal and illegal migration, and asked the Commission to present a policy plan on legal migration. The Commission started a consultation process with the Green Paper on economic migration (COM (2004) 811 final), to which the ETUC contributed with an extensive response in March 2005. The Commission came up with a Communication on a Policy Plan for legal migration in December 2005 (COM (2005) 669 final), which foresaw the adoption of five legislative proposals on labour immigration. This approach aimed at laying down admission conditions for specific categories of migrants (highly qualified workers, seasonal workers, remunerated trainees and intra-corporate transferees) on the one hand, and securing the legal status of already admitted third-country workers and introducing procedural simplifications for the applicants on the other hand.

This new approach must be understood against the background of the previous initiative of the Commission, in 2001, to come up with a comprehensive horizontal draft Directive, dealing with a general framework for admission of migrants for employment and the rights those migrants would enjoy.

This initiative, broadly supported by the European Parliament and the ETUC as well as civil society, failed to get support of Member States in the Council of Ministers, and was eventually withdrawn by the Commission.

In July 2006, the Commission presented a Communication on Policy priorities in the fight against illegal immigration of third country nationals (TCNs) (COM (2006) 402 final), and suggested to reduce the ‘pull factors’ that encourage illegal immigration into the EU, the most important one being the possibility of finding work, by ensuring that Member States (MS) introduce similar penalties for employers of such TCNs and enforce them effectively. The European Council endorsed this suggestion in December 2006 and invited the Commission to present proposals.

On 16 May 2007, the Commission presented a draft Directive of the European Parliament and the Council providing for sanctions against employers of illegally staying third-country nationals (COM (2007) 249 final) (further: Employers’ sanctions Directive).
Also on 16 May 2007, the Commission presented its Communication on Circular migration and mobility partnerships between the EU and third countries (COM (2007) 248 final) (further: Communication on circular migration)

On 23 October 2007, the Commission presented two draft Directives: The draft Council Directive on the conditions of entry and residence of third-country nationals for the purposes of highly qualified employment (COM (2007) 637 final) (further: Blue card Directive) and the draft Council Directive on a single application procedure for a single permit for third-country nationals to reside and work in the territory of a Member State, and on a common set of rights for third-country workers legally residing in a Member State (COM (2007) 638 final) (further: Rights Directive).

This position sets out key elements for ETUC’s response to these various initiatives, where possible explicitly linked to specific paragraphs of the ETUC Congress document adopted in Seville in May 2007, which will allow ETUC to take active part in the legislative process with more detailed contributions and amendments, and which offers ETUC affiliates as well as third parties a single document for reference.

2. ETUC’s commitment



In its Action plan adopted at the Seville Congress of May 2007, the ETUC demanded a more proactive policy on economic migration and more investment in integration (Chapter 2, Paragraphs 2.41 to 2.52).

Summarized



There is an urgent need for policies with regard to migration and integration at EU level, based on the recognition of fundamental social rights of current citizens as well as newcomers and embedded in strong employment and development policies, both in countries of origin and in countries of destination. A common framework of EU rules on admission for employment is urgently needed. However, this framework should not be aimed unilaterally at the demand for temporary migration, as this would favour precarious jobs and hinder sustainable integration.

The EU must develop a more proactive migration policy, geared towards ‘managing’ and not preventing mobility and migration for employment, that combines strong integration efforts with making employers and public authorities respect and enforce labour standards. This should offer old and new groups of migrant and ethnic minorities equal rights and opportunities in our societies, while promoting social cohesion.

This policy must be based on a clear framework of rights as established by international UN and ILO conventions and Council of Europe instruments, and be developed in close consultation with social partners at all relevant levels.

Labour market shortages should be primarily addressed by investing in the capacities and qualifications of unemployed and underemployed EU citizens (including those from a migrant or ethnic minority background) as well as long term resident third country nationals and refugees.

In addition, possibilities should be created for the admission of economic migrants, by providing for a common EU framework for the conditions of entry and residence, based on a clear consensus between public authorities and social partners about real labour market needs, preventing a two-tier migration policy that favours and facilitates migration of the highly skilled while denying access and rights to semi- and lower skilled workers.

Such policy should prevent the increasingly negative effects of the global competition for skilled labour: the potential devastating effects of the brain drain and youth drain on countries of origin, as well as the potential “brain waste” in terms of the underutilisation of skills and qualifications of migrants in the countries of destination.

More proactive policies should also be developed to combat labour exploitation, especially of irregular migrants, demanding recognition and respect of their trade union and other human rights, and providing them with bridges out of irregularity. While there is a need to be tough on employers using exploitative employment conditions, more effective policies should be developed to prevent and remedy such exploitative situations.

This must be linked to external (trade, development) policies that promote raising living standards and opportunities in sending countries, which would offer (potential) migrant workers and their families proper job opportunities at home. Cooperation and partnership with third countries, in particular developing countries and the European neighbourhood countries, should be strengthened.

ETUC and affiliates will address employers and their organisations at national and EU level to explore ways to deal with economic migration and integration in social dialogue at all appropriate levels, recognizing the strong employment and labour market dimension of these issues.

ETUC and its affiliates will develop policies and strategies to organise migrant workers, defend and promote their trade union rights and other human rights (whatever their legal status), develop strategies to incorporate the situation and demands of migrant workers into trade union work and integrate them in the structures of trade union organisations, prevent and combat exploitation, and improve their living and working conditions. ETUC and affiliates should also strengthen their cooperation with trade unions in sending countries.

Based on this programme of action, the ETUC Congress adopted the following action points.

•  Work towards a more proactive Europe migration policy geared towards managing not preventing migration, combined with strong integration efforts and the enforcement of human rights, labour standards to combat the exploitation, especially of irregular migrants.

•  Intensify actions and campaigns at both European and national level in favour of ratification and application of all conventions and important instruments of the ILO, UN and Council of Europe conventions on the protection of the rights of all migrant workers and their families.

•  Support policies that recognise the fundamental social rights of all workers and which favour social cohesion by preventing the creation of two-speed migration channels and the exploitation of workers in irregular administrative situations and the recruitment of migrants in precarious working and social protection conditions.

•  Combat all forms of human trafficking.


ETUC’s response to the various recent initiatives of the Commission in the area of migration is based on the commitment and programme of action as adopted by its Congress.

3. General comments


A. A piecemeal approach may lead to a two-tier migration policy, with less or no rights for lower skilled migrants



Already in 2005, on the occasion of the consultation of the Commission’s Green Paper on economic migration, the ETUC acknowledged the Commission's view that a successful Community policy in the area of economic migration can only be put in place progressively, taking into account the fact that the access of third country nationals to EU labour markets is a highly complex and sensitive issue.

EU legislation on the admission of economic migrants should therefore be conceived as a ‘first step legislation’, laying down certain common definitions, criteria and procedures, while leaving to the Member States to respond to the specific needs of their labour markets and to determine the volumes of admission of persons.

At the same time, it cannot be denied that there is growing interdependence between Member States with regard to decisions taken in the area of immigration, which call for more harmonization at EU-level.
First of all, because of the already existing mobility of workers and services. Further harmonisation, not only of immigration law, but also regarding minimum working conditions and equal treatment in situations of cross border working, is necessary to bring about a European internal labour market, and to prevent social dumping.
Secondly, national policies with regard to asylum and with regard to the entrance of certain groups of migrant workers (such as high skilled workers) are already having an impact on the labour markets of other Member States, because of regulations with regard to mobility of long term third country nationals, the right to deliver services in other MS’s, and the general impact of admission of TCN’s on the European labour market.
Thirdly, the increased competition between industrialised countries on the global labour market for workers with high skills or scarce professions demands European coordination to provide a sustainable framework, that would benefits EU Member States as well as the workers concerned and their countries of origin.

In this context, the ETUC has always been in favour of taking a horizontal approach, along the lines of the original draft Directive of 2001, rather than coming up with a series of sectoral proposals.

One important argument against a sectoral approach is that this would increase the divergence in rights for several groups of workers and may contribute to a two-tier migration policy with less or no rights and protection for the lower skilled and low paid migrants. In ETUC’s view, European migration legislation should cover all third country nationals, without general preferences or privileges (except for a possible preferential treatment of citizens of neighbouring countries on the basis of the EU neighbourhood policies, and preferential treatment based on bilateral agreements that are often based on historical links between host country and country of origin).


The ETUC understands the difficulties for the European Commission to adopt again a horizontal approach, taking into account the reluctance of many Member States to cooperate and legislate in the area of legal migration. The ETUC therefore sees the initiatives of the Commission to propose a Directive on admission for high skilled workers, accompanied by a proposal for a general framework Directive on rights for all third country nationals that are legally residing in an EU Member State, as positive steps in the right direction.

On the other hand, the ETUC has major problems with the fact that these proposals are preceded by a draft Directive on sanctions for employers employing irregular migrants (mostly occurring in the low skilled and low waged segments of labour markets and sectors),
whereas in the legislative programme of the Commission there is little or no initiative to offer legal channels for migration for medium or lower skilled labour, except for the announced initiative on seasonal workers. Without such legal channels, sanctions for employers employing irregular migrants may not only turn out to remain largely ineffective, but may also lead to further repression, victimisation and exploitation of irregular migrant workers (see explanation below).

B. Inadequate legislative process and insufficient consultation of social partners



The EU is still suffering from very inconsistent and inadequate legislative procedures when it comes to legal and illegal migration, which may lead to a very unsatisfactory process of decision making.
According to the current EU Treaties, in the area of illegal migration legislation can be adopted in co-decision with the European Parliament, and qualified majority voting in the Council. When it comes to legal migration however, the procedure is only consultation of the European Parliament and unanimity voting in the Council. Co-decision and qualified majority voting will be extended to the whole area of migration policy only if and when the Reform Treaty is ratified by all Member States.
However, even then there will still be Member States that have a special position with regard to the Justice, liberty and security chapter, as they have negotiated the possibility to ‘opt in’ (or not) every time a legislative initiative is taken (UK and Ireland) or have opted out altogether (Denmark). In this context, the ETUC is wondering how successful the current proposals can be.
On many occasions the ETUC has stressed the need for strong social partner consultation and involvement on any EU initiatives taken in the area of economic migration, i.e. migration for employment.

The current realities and patterns of mobility and migration already have an enormous impact on labour markets and industrial relations. New migration policies and strategies should be more closely linked to and embedded in employment and labour market policies. Social partners at all relevant levels (local, sectoral, national and European) are often best placed to assess and address labour market needs and promoting consensus between public authorities and labour market actors on the policies and instruments to be adopted.

The legal framework for decision making on migration at EU level does not explicitly foresee consultation of the European social partners. The ETUC however insists that the Commission and the Council recognize the social policy dimension of economic migration, and establish adequate procedures and practices for consultation of the European social partners in the legislative process.

4. Summary of conclusions



In Annexes A-D more detailed comments can be found on the various initiatives.

A. With regard to the Employers’ sanctions Directive


Irregular migration is a complex phenomenon, and employment one of many pull factors. An adequate response requires a wide range of measures and policies, addressing undeclared work and precarisation of work and the need to open up more channels for legal migration.

The ETUC has some strong concerns about the draft Directive, especially when put in place in the current context in which very limited legal channels for migration of TCN’s in low skilled and low paid jobs exist in MS’s, and little or no emphasis is placed on combating exploitative labour conditions. Taking into account that employers’ organisations have especially complained about all the elements of the proposal that might allow it to have some real effect in practice, there is a great risk that especially those elements will be weakened or deleted in the course of the legislative process. This may have the effect of the Directive becoming a toothless instrument that will mostly drive the undocumented workers further underground. The ETUC calls on MS’s and the EP to prevent this happening at all costs.

B. With regard to the Circular Migration Communication


In ETUC’s view, the idea of circular migration must be carefully explored, and should certainly not replace more comprehensive policies in which more permanent legal channels for economic migration are also made available. Tackling brain drain and promoting ethical recruitment and a constructive policy of ‘brain-exchange’ should be part of such approach.
However, in the context of such broader policies, measures that allow migrants more flexibility to move between their country of origin and country of residence without losing their immigration status and rights can be a positive incentive for migrants to explore the opportunities in their country of origin, and may thereby make a positive (although modest) contribution to alleviating the brain drain.

C. With regard to the Rights Directive



This proposal is certainly the most important one in the package, and is as such highly valued by ETUC. We welcome the fact that the Commission clearly understands the need for a clear and unambiguous legal framework offering equal treatment to migrant workers, as has been demanded on many occasions by ETUC.
The ETUC agrees with the European Parliament (Report on the Policy Plan on Legal Migration, rapporteur Lilli Gruber, 17.9.2007, Final A6-0322/2007) that this Directive should be submitted (and adopted) in advance of the specific Directives that will regulate the access of specific groups of migrants, and that different sets of rights and double standards for different groups of workers should be avoided.

D. With regard to the Blue Card Directive


The global social responsibility for preventing brain drain is an area where a coordinated EU policy on high skilled migration would be very welcome, to prevent MS’s competing with each other for skilled workers at the expense of countries of origin. ETUC would like to see more obligatory mechanisms and measures to prevent unethical and aggressive recruitment, and wants to emphasize the important role social partners can play in the development of such measures.

The ’Blue Card’ initiative must not lower standards among workers already in Europe, or stop investment in their training. Also jobs in sectors where there are shortages will have to be made more attractive to the locally unemployed in terms of wages and working conditions. The Blue Card initiative must not replace policies and incentives to invest more in the currently unemployed, migrants, and women to enter higher skilled jobs.

This Directive is the first one in a series of announced proposals that would harmonise conditions for admission to the EU. The Commission has chosen a group of migrant workers that according to most MS’s is very welcome to fill their high skilled labour market shortages. While the proposal has several weaknesses, it provides a starting place for discussion and debate on how to develop more legal channels for migration. The ETUC will therefore carefully study the Commission’s proposals, and work closely with the European Institutions to improve them where necessary. We will also discuss these questions with European employers’ organisations.

Annexes



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