EESC calls for consistent and tough sanctions on employers of illegally staying migrants

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Often a source of labour exploitation, the employment of illegally staying migrants is also a pull factor for migrant smuggling which claims thousands of lives every year of people embarking on dangerous journeys to reach Europe. Both criminal practices should be met with resolute action at national and EU level

The European Economic and Social Committee (EESC) has called on Member States to step up their efforts and implement the EU Directive providing for sanctions on employers of illegally staying third country nationals.

In the recently adopted opinion, the EESC warned about the flawed transposition and implementation of the Directive across the EU. The severity of sanctions varies considerably between Member States and, in most cases, they do little to dissuade employers from hiring illegally staying third-country nationals.

Another shortcoming of the Directive is its inability to encourage migrants to file any official complaints against employers. This is due to migrants' often justified and legitimate fear that they will be returned to their countries of origin. As there is a lack of detailed or meaningful information available in the languages of migrants, coupled with the fact that labour inspections are few and far between, the mechanisms for filing these complaints remain largely ineffective.

We firmly support the Commission when it says it will launch infringement proceedings against Member States should they persist in not providing all relevant information on implementation of the key obligations on sanctions, inspections and protection of migrants' rights laid down in the Directive, said the rapporteur of the opinion Carlos Manuel Trindade.

We also propose that the Commission should examine what sanctions can be established or adopted against companies that knowingly benefit from the outcome of illegal and criminal activities, Mr Trindade added. This can be done as part of the evaluation of the Directive's implementation, scheduled before 2024.

The Directive was originally adopted in 2009, and the Commission recently published a Communication with the aim of strengthening its application and assessing the need for additional measures. It is part of the more general approach of the New Pact on Migration and Asylum.

The EESC recommends  that EU countries use the potential of all the sanctions laid down by the Directive, especially administrative measures such as the loss of public benefits, exclusion from public contracts, recovery of public subsidies, the temporary or permanent closure of establishments and withdrawal of licences to operate.

In its view, sanctions in Member States must be dissuasive, proportionate and incorporated into their legal frameworks. The financial penalties imposed on the employers of illegally staying migrants must be at least greater than the profits derived from the illegal activity.

At the moment, these financial penalties can vary from EUR 3 000 to EUR 430 000, while prison sentences range from 8 days to 12 years. As many as 11 EU countries changed their legislation since 2014 to increase the fine imposed.

Another EESC recommendation is allowing migrants who report illegal employment to have regular residence and work permits, which could motivate them to cooperate with the authorities in the clampdown of irregular work, and subsequently put an end to their exploitation.

Furthermore, it could be made sure that labour inspections are not carried out in conjunction with migration authorities, whereby labour inspectors would not be obliged to report irregular migrants if they encounter them in the workplaces inspected.

The EESC also recommends that labour inspectorates should be given the necessary resources to carry out their tasks properly, increasing inspections in high-risk sectors.

Whereas informal employment in the EU is estimated at 16.8% of all employment on average, the number of illegally staying third-country workers is difficult to quantify and varies from country to country. This number seems to be higher where the share of informal activity is high.

The need to strengthen the Employers Sanctions Directive is warranted by the fact that irregular work often attracts irregular migration and may be linked to migrant smuggling.

In another opinion, the EESC analysed the renewed EU Action Plan against Migrant Smuggling (2021-2025) in which it welcomed its comprehensive approach on this issue and hailed it as the continuation of its work to combat this dangerous and criminal activity. According to Europol figures, more than 90% of people who entered the EU illegally have travelled via smuggling networks at some point.

Combatting migrant smuggling is considered a priority under the EU's New Pact on Migration and Asylum, as it has claimed the lives of thousands of migrant women, children and men. It violates their rights, takes advantage of people trying to enter the EU and is also a threat to European security.

The fight against migrant smuggling can never be directed against the migrants themselves or against humanitarian aid and help for them. There must be no criminalisation of solidarity, said the rapporteur of the opinion José Antonio Moreno Díaz. We understand that safeguarding the EU's external borders is a priority, but they must be always protected with respect for human rights.

For the EESC, it is of utmost importance to combat migrant smuggling by applying a whole-of-route approach. This means improving judicial and police cooperation between countries and with neighbouring countries, strengthening actions to prevent exploitation and ensure the protection of smuggled persons, and curbing irregular employment and labour exploitation.

To deactivate a large part of this illicit business, legal and safe channels to the EU, as well as the protection of the right to asylum, are crucial, the EESC concluded.