| 25 February 2009 The European Union made a huge step forward in its efforts to tackle one of the main pull factors for illegal immigration, that created by employers providing illegal work. The European Parliament approved a compromise, reached with the Council in December 2008, for a directive providing for sanctions against employers of illegally staying third-country nationals. Parliament's favourable vote paves the way for a first-reading agreement on the so-called "employer sanctions" directive. The directive will still have to be formally approved by the Council before it can enter into force. "As I already said earlier this month in Strasbourg, I am very glad to see that on such a sensitive and complex issue, Parliament and Council have been able to find solutions which will have a significant impact on the ground" stated Vice-President Jacques Barrot, EU Commissioner responsible for Justice, Freedom and Security, adding that " the ease of finding illegal work in EU Member States is a main driving force behind illegal immigration from third countries. The employment of illegally staying migrants is not a trivial matter, as it is harmful in many respects. Because of their dependency on the employer, such persons run a high risk of ending up in the harsh reality of exploitation and even sometimes slavery-like conditions. The pull factor created by illegal employment is also strongly linked to the sometimes tragic journeys, causing several thousand deaths every year, that illegal migrants take to come to the EU. And illegal employment also distorts competition and the functioning of the internal market. The European Union must therefore be firm and committed in its fight against this unacceptable phenomenon. " Precise figures are difficult to obtain but estimates of illegally staying migrants in the EU range between 4.5 and 8 million, with an estimated increase by 350 000 to 500000 per year. From 7 to 16% of the EU's GDP is estimated to come from the shadow economy, but this includes undeclared work undertaken by EU citizens. Construction, agriculture, house-work, cleaning, catering and other hospitality services are the sectors of the economy most prone to such undocumented work in general and attracting illegally staying migrants in particular. The compromise for the directive foresees sanctions against the employer, not the migrant. It covers companies and individuals, including where the employment is for private purposes. According to the directive, employers must undertake certain checks before recruiting a third-country national and notify a competent national authority; simplified rules may apply to private individuals acting as employers. Employers who cannot show that they have complied with those obligations will be liable to fines and other administrative measures such as loss of subsidies (including EU funding) or temporary disqualification from public contracts or from receiving state aids. Member States are required to provide for criminal penalties in the five most serious cases: repeated infringements, simultaneously employing a significant number of persons, particularly exploitative working conditions, knowingly using work or services exacted by a person who is a victim of human trafficking and illegally employing a minor. Outstanding remuneration will have to be paid back by the employer. To this end, the employment relationship will be assumed to have lasted at least 3 months unless there is evidence to the contrary. The directive also obliges Member States to put in place effective mechanism through which the migrant or designated third parties such as trade unions can lodge complaints against the employer. Illegally staying migrants who cooperate with the competent authorities in criminal proceedings against their employer will be able, under certain conditions, to obtain a temporary residence permit. Moreover firms that use subcontractors can be held liable if their direct subcontractor is infringing this directive. This liability is even extended to the full chain of subcontractors if the firm knew that any of them was acting illegally. Member States already have sanctions to combat illegal employment, but these vary significantly in severity and enforcement. Experience has shown that the existing sanctions have failed to achieve full compliance. Ensuring that all Member States introduce similar obligations and penalties on employers, and enforce them effectively will serve as a strong deterrent and avoid distortions on the single internal market caused by unfair competition by those employing illegal migrants. Across the EU as a whole, checks on staff records are rare - just over 2% companies in the EU were checked in 2006. The risk of being discovered is far too low. The directive does not contain quantitative targets but it requires Member States to improve the quality of their inspections through mandatory risk assessments and annual reports to the Commission on their inspection efforts. The final adoption of the Directive is likely to take place in spring. Once adopted, published and entered into force, the Member States will have 2 years for the transposition of this directive into their national laws before it will be fully applicable in practice (approx. summer 2011).
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