"Protecting migrants in an irregular situation from labour exploitation – Role of the Employers Sanctions Directive", 24 June 2021

There are regular reports about the exploitation of migrants in an irregular work situation. Some severe cases of labour exploitation meet the definition of trafficking in human beings...

When trafficking in human beings cannot be established, victims may rely on other instruments of European Union (EU) law. One such instrument is the Employers Sanctions Directive. Primarily enacted to dissuade employers to recruit migrants in an irregular situation, this directive also contains provisions to protect workers. It facilitates access to justice for exploited workers and sets out workers’ rights to claim back payment of outstanding wages. The directive also contains provisions to enhance the effectiveness of labour inspections.

The Employers Sanctions Directive obliges EU Member States to prohibit the “employment of illegally staying third-country nationals” and to criminalise certain forms of employment – for example, when employers subject workers to particularly exploitative working conditions, as set out in Article 9 (1) (c). The directive envisages the possibility of granting such victims temporary residence permits.

In 2014, the European Commission noted – in a Communication to the European Parliament and the Council on the application of the Employers Sanctions Directive – that some Member States had yet to implement the directive’s protective elements in a satisfactory manner. This report describes how the 25 Member States bound by the directive (which does not apply to Denmark or Ireland) have been implementing its protective provisions...

This report highlights that, 10 years after the deadline to transpose the Employers Sanctions Directive, there have been some improvements in the law to protect migrant workers in an irregular situation from labour exploitation and abuse – but more needs to be done...

[T]he evidence collected for this study shows that, in many Member States, migrants in an irregular situation are not using the complaint system...

Even if claims are successful, it is often unknown whether or not workers actually receive back pay...

In past reports, FRA has made a number of suggestions to prevent severe labour exploitation, and to better identify victims, ensure their referral to support organisations and protect them. Many of these suggestions also apply to migrants in an irregular situation. Annex 1 reproduces the most relevant past FRA opinions covering, in particular, the following four areas of priority action:

― enhancing the effectiveness of the complaint mechanism by enabling third parties, such as trade unions and relevant associations, to act in support of or on behalf of migrant workers in an irregular situation;

― making back pay of due wages a reality, by having criminal courts also decide on civil law claims, enabling victims to benefit from state compensation funds, and permitting the freezing and confiscating of employers’ assets to compensate exploited workers;

― informing workers of their rights more systematically and effectively, paying particular attention to language barriers and giving labour inspectorates a key role in informing workers of their rights and the available complaint mechanisms, including during labour inspections;

― issuing temporary residence permits to victims of particularly exploitative working conditions