Inspiration through Impact


Mobility: EU Immigration and Labour Law
October 21, 2012, 10:07 PM
Filed under: Uncategorized

Immigration within the EU has been a hot topic for me for quite a number of reasons. As a constant almost tragedy and basis for laughter for many of us “trying to make it” in this very competitive market the topic is never ending, the laws are always tougher and the policies have a not very favorable tendency at the moment (for us), who often get the feeling that… no matter how hard you studied, how many languages you learn, etc. You will always be in a “justified” disadvantage. Why do I describe it as “justified”? Well… as much as I do understand the concepts of border safety and population control (hence the lived struggle of more than 12 years meeting all sorts of new requirements), it was more often than I’d like to accept not given a job because of my accent or given a lower grade than the rest of the students in a class because “it was obvious I was speaking my third or fourth” language… Anyway…

The European Union remains a strong influence on the lives of its citizens – regulating the flow of labour across national borders, employment rights and access to jobs. However, employers are now being called upon to act as border guards of last resort and the nationalistic linguistic policies of many EU member states remain a major problem.

On July 1st 2013 Croatia will become the 28th member of the European Union (EU). The EU continues to expand its membership, but it also becomes increasingly open to immigration of nationals from across the world. Today Germany became the latest EU member state to introduce the EU blue card system – allowing highly qualified workers to enter the country and take up well paid positions.

The EU has also just signed an addendum to the current visa facilitation agreement with Ukraine which extends the categories of individuals qualifying for the simplified procedure for obtaining visas to travel to EU member states. The amendment covers those visiting relatives, an increased list of qualifying professions and provisions for those participating in cross-border cooperation programmes.

Although EU countries are happy to welcome highly skilled migrants it is also tightening up its controls on illegal immigration. In July The Italian Council of Ministers approved draft legislation to transpose EU Directive 2009/52/EC into national law, increasing sanctions for those who illegally employ third country nationals. The decree introduces a fine of 1000 euros per illegal worker, in addition a requirement to meet the full costs of unpaid taxes and social security contributions.

A new Polish Act requires companies to ensure that all non-EU employees, contractors or subcontractors possess valid residency papers before allowing them to work in the country. Previously residence permit issues were solely the responsibility of the individual. The new Act requires that a copy of the employee’s right of residence is retained by the employer for the duration of the employment or contracted work period. Any company employing non-EU individuals when the new law comes into effect is required to obtain a copy of the right of residence within 45 days (effectively by September 4th 2012).

Established EU countries have also largely removed barriers to the free movement of workers from Bulgaria and Romania, the latest EU accession states. Although Ireland’s recent decision to end restrictions was largely the result of a sharp reduction in the number of work permit applications received from nationals from both states.

Moving against this trend is Spanish government – as it struggles to cope with record levels of unemployment. Not only has Spain re-applied restrictions on the movement of Romanian workers, but it is also tightening up residency procedures for all other foreign EU nationals. EU citizens living in Spain for longer than three months must now produce employment, financial, social security and/or medical insurance documents when completing the required in-person registration at their local immigration office or police station.

The biggest barrier to mobility within the EU remains its many linguistic divides and it has normally taken the courts to remove the impractical and often unjust nature of  linguistic restrictions imposed on companies.

In France all employment contracts and employment policy documents must be made available in French, even if the lingua franca of a company is not French. Until recently employers in the Flemish Region of Belgium were also required to use Dutch when writing the employment contracts of foreign nationals. It has taken a ruling from the European Court of Justice (ECJ) to challenge this Flemish decree. Advocate-General Jaaskinen advised the Court that there is no pan-EU rule harmonising the use of languages in employment contracts. Further to this, the ECJ decided that a law such as the one is question might well discourage applications from job candidates residing outside Flanders or the Netherlands (C-202/11).

The French Supreme Court has also intervened to remove the automatic obligation on international employers under French law to offer redundant employees vacant positions in another country, even if the employee concerned could not speak the native language of the country where they would be redeployed.

In spite of these interventions EU governments continue to introduce laws that discriminate against foreigners and linguistic minorities and in favour of their own mainstream country nationals. For instance, in Latvia a recent parliamentary Bill (now awaiting Presidential approval) removes the right of employers to require an employee to speak a particular language other than Latvian.

According to Robin Chater, Secretary-General of the Federation of European Employers (FedEE), “Employers are being burdened by often well-intentioned legislative changes at an EU level designed to prevent illegal immigration. These both impose more duties on employers to police the labour market and penalise employers if they fail to act as effective border guards of last resort.“

“Similarly employers have to live with the increasingly tendencies of EU member states  to use linguistic requirements to favour the employment opportunities of their nationals, even to the cost of their own minority groups. The EU should therefore place the burden of illegal immigration on the shoulder of member states rather than let it be offloaded onto employers. It should also seek to guarantee all enterprises the right to operate in whatever EU language they choose – without the imposition of petty local language rules.”

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2 Comments so far
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Interesting blog – our firm frequently acts in cross-border employment law cases.

Comment by Laura | Law Firm AMS

Hi Laura, Global mobility is becoming more and more of the business as usual of every HR and Legal departments. It is hard to stay on top of it and everyone in those teams need to be on top of it to mitigate risk. I know of a great firm that trained me in the topic as I was working for a large consulting firm in Ireland, it also helps to have people on board that have gone through the bureaucratic nightmare international relocation means. It helps people take more responsibility over their own legal status in a given country.

Comment by Maria Ocampo




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