by Michele LeVoy and Sabine Craenen
Ahmad comes from Algeria (pseudonym and fictitious country), and has been living and working in Brussels as an undocumented worker for eight years. Three years ago, he found work in a pub in the centre of the city. Ahmad was given accommodation in a small room above the bar, paid less than minimum wage, and was forced to work sixteen hours a day. One night during work, he fell through a glass door and injured his hand and had to go to the emergency room in the local hospital. His employer made it very clear that Ahmad must not tell anyone at the hospital about his terms of employment. Ahmad complied, but when he came back to work the next day, Ahmad found that his job and his room had been given to someone else.
Every day hundreds of thousands of undocumented workers labour in different sectors of the European economy. They often work and live in inhumane conditions, earning very little or no pay at all, and are insufficiently protected by legislation. Facing exploitation and abuse, many undocumented workers believe they have no other option but to accept their present situation. Fearing that they may be deported if they speak out, an overwhelming number suffer in silence.
For many people, the living and working conditions of these migrants are hard to believe, as they remind us of times before the existence of labour movements. Yet, stories such as Ahmad’s are very familiar to all organisations providing support to undocumented migrants in the European Union. The term “slavery” is often used to describe these situations.
Meanwhile some sectors in the European Union are, to a considerable extent, dependent upon undocumented workers, who make up a substantial part of their workforce. This dependence may be hidden, not just by migrants’ silence, but by sub-contracting chains and employers’ complicity.
EU Policy: what about undocumented workers’ rights?
As do all human beings, undocumented migrants have rights under international law, including the right to: health care, organize, fair labour conditions, education and training, shelter, family life, moral and physical integrity and equality before the law.1 However, as this article will highlight, the actual protection of those rights is far from secure.
In June 2007, the EU Commission proposed a draft directive for sanctions against employers of ‘Illegally Resident Third-Country Nationals’. In its explanatory memorandum, the Commission states that the availability of work opportunities in the EU is a major pull factor for undocumented migrants, and that, therefore, sanctions against the employers of these migrants need to be introduced. By reducing employment possibilities for migrants without residence permits, the directive primarily aims to control immigration. However, the directive also states that irregular employment damages the general labour market and hurts the workers involved, which are presented as extra arguments for the sanctions. Novelly, the directive also contains some provisions to protect undocumented workers’ rights.
It is indeed relatively easy for undocumented workers to find a job in almost any EU Member State – those workers are highly attractive for employers due to their flexibility, availability, and because they are cheap to employ (Le Voy, Verbruggen, Wets 2004). However, tolerating a situation in which a certain group of workers is denied their rights presents an inherent risk. Migrant workers have often been used as the experimental ground for the profound restructuring of the economic fabric and work models of Europe. Present trends of temporary work, precarious contracts, subcontracting, mobile schedules, dependency of employees and undeclared employees have all been tried out first on foreign workers.
The EU Commission thus points to real problems when indicating undocumented workers’ vulnerability to abuse and the damage this kind of employment has on labour conditions in general. However, as this article argues, introducing sanctions based on the migration status of workers is not the right answer.
Sanctions cannot fight exploitation or numbers of undocumented workers
Looking at evidence from various countries which have introduced similar sanctions in the past, it becomes clear that they have not succeeded in reducing irregular migration or in deterring rogue employers from hiring undocumented workers. Rather, these employers calculate the profits and the risks and look for escape routes that usually result in more abuse of the workers involved.
For instance, during the last 20 years in the United States it is estimated that the number of undocumented migrants rose from 2.5–3.5 million to 11-12 million, despite the employer sanctions introduced in 1986. Furthermore, US trade unions, who at first called for the introduction of the sanctions, are now calling for their abolition, asserting that “although employer sanctions did not create the problems of exploitation and discrimination, they have contributed significantly to the inability of immigrant workers to enjoy and enforce the most basic labour and workplace rights.”2 Less information is available about the effects of employer sanctions in Europe, but the experiences of Germany, France and the Netherlands,3 as well as anecdotal evidence from elsewhere, have all shown similar trends. The number of undocumented workers in the labour market does not seem to have decreased significantly, rather, due to employers looking for ways to escape sanctions, labour conditions and wages have become even worse.
The reason why a sanctions approach will not effectively reduce irregular employment is that it tackles the symptoms rather than the root causes of the irregular labour market. By taking migration control as a starting point, it adopts a very narrow view of the presence of undocumented workers in the labour market. A more holistic approach would require measures designed through intensive consultation with social partners and in coherence with the fight against the irregular labour market in general.
Potential Negative Effects of the Measures Proposed in the Directive
Not only is the effectiveness of a sanctions approach doubtable, sanctions have negative side-effects on workers in various ways. From a human rights perspective, this is what worries PICUM the most.
As the above examples already mentioned, escape routes used by employers cause serious damage to labour conditions in general. Higher risks for employers result in looser labour relationships and more subcontracting, workers being forced to work as independent contractors, lower wages and additional pressure on the informal labour market, forcing it further underground. This makes it all the more difficult to hold employers accountable for abuse.
When workplace-control becomes influenced by migration-control, undocumented workers will, more often than not, refrain from complaining to the authorities. While the memorandum of the directive states that when workers are apprehended without a residence permit a return decision will be issued, in reality, this will mean that the sanctions approach will punish the workers more than the employers – the opposite effect of what the directive hopes to achieve.
Furthermore, publicising employer sanctions may not only deter employers from hiring unauthorized workers, but also deter them from hiring any “foreign looking” worker at all. The requirement for employers to carry out repeated checks on those who do not have an unqualified right to work and reside in the EU, will also provide the unscrupulous with another means by which to harass the vulnerable and undermine union organisation. Studies in the US have repeatedly shown that widespread discrimination was one of the consequences following the introduction of employer sanctions. Again, less research is available for Europe about this issue.
A Rights-Based Approach
Undocumented workers are frequently hired because they are cheap and exploitable. PICUM therefore proposes making this aspect the point of departure. Obstacles to the enforcement of undocumented workers’ rights should be analysed and removed. A rights-based approach is an alternative to the penal approach, and will not have the same negative side effects. It can be designed by authorities responsible for Employment and Social Affairs, on the national or the European level, since the main criteria for enforcement is not residence permits or even work permits, but the compliance of employers with labour rights and regulations for taxes and social security. Contrary to the penal approach, the rights-based approach will primarily target the most exploiting employers.
A rights-based approach necessarily consists of the following:
- Undocumented workers will, as much as possible, possess the same workplace rights as documented workers.
- This includes minimum wages, maximum working hours and overtime pay, workers’ compensation in case of work-related accidents, compensation in case of dismissal and the right to organise.
- Equal rights reduce the incentives for unscrupulous employers to hire undocumented workers.
- If hired anyways, the damage done to the general labour market will be minimised because the undocumented workers’ ‘competetive edge’ over regularly employed workers will be reduced.
However, experience in many countries, where basic workplace rights for undocumented workers do exist, has clearly shown that this is insufficient. In order for undocumented workers’ rights to be effectively protected, there must be:
- Effective and safe complaint mechanisms. ‘Safe’ means that the worker can complain without fear of deportation.
- Enforcement of respect for labour rights which is not linked to migration control, exactly the opposite of what the current directive proposes.
- The Commission itself has understood that the purely repressive approach is not sufficient to fight irregular migration, and has been reflecting on legal possibilities for migrant workers to enter the EU. These legal alternatives should be considered an integral part of every strategy to cope with the presence of undocumented workers.
The proposed directive explicitly guarantees the workplace rights of undocumented workers, and imposes an obligation on Member States to guarantee these rights. This new development in EU legislation is welcome. However, as argued above, the rights accorded to undocumented workers will, in reality, not be enforced because the directive fails to address the root cause of their vulnerability, which is their fear of deportation because of their irregular status. Quite on the contrary, the directive reinforces workers’ vulnerability. It incentivises employers to use further escape strategies and/or go “underground”, and leads to a greater risk of discrimination against all ‘foreign’ looking workers.
At the same time, it has never been convincingly shown that employer sanctions actually reduce the number of undocumented workers in the labour market. PICUM thus has some fundamental concerns regarding the proposed directive, and urges the Commission not to pursue the current proposal.
1 A comprehensive overview of international human rights law concerning undocumented migrants can be found the Homepage of PICUM. The website also contains a policy brief dealing specifically with undocumented workers’ workplace rights and several statements and other documents concerning EU legislative projects on employer sanctions.
2 Quote drawn from the TUC comment on the UK proposal for a law introducing employer sanctions. This text was issued in July 2007 and can be found on the TUC website. See also Mehta, Theodore and Hincapié. Social Security’s No-Match Letter program: Implications for Immigration Enforcement and Workers’ Rights , (2003) and National Immigration Law Center State and Local Proposals that Punish Employers for Hiring Undocumented Workers Are Unenforceable, Unnecessary, and Bad Public Policy, 2007.
3 See “PICUM Comments on COM 2007 249 final Employer Sanctions”. Part of this article is based on this position paper. See also Natasha Iskander, “Informal Work and Protest: Undocumented Immigrant Activism in France, 1996-2000”, in British Journal of Industrial Relations 45:2 June 2007 pp.309-334.
- European Commission (2007): Proposal for a Directive providing for sanctions against employers of illegally staying third-country nationals, COM (2007) 249 final, 2007:0094 (COD), Brussels, 16.5.2007. (30.11.2007)
- LeVoy, M., Verbruggen, N. and Wets, J. Undocumented Migrant Workers in Europe. Leuven: PICUM and HIVA, 2004
Michele LeVoy is diretor of PICUM, a network of organisations providing assistance to undocumented migrants. Sabine Craenen is coordinator of the Belgian "Organisation for Undocumented Workers" (OR.C.A) and member of PICUM.