FOR LABOUR MIGRATION SYSTEMS
8.3 The risks involved
Failure to adhere to the requirements – Consequences for the labour migrant
To ensure that the required level of working conditions is upheld, a particular strategy has been adopted. If the required level of working conditions in the three systems has not been upheld, the labour migrant will or can lose the authorisation to work and remain in the country. According
5 See European Commission, Proposal for a Council Directive on the conditions of entry
and residence of third-country nationals for the purposes of highly qualified employment, COM(2007) 637, Brussels, 23.10.2007, p. 9.
6 See European Commission, Proposal for a directive of the European Parliament and of
the Council on the conditions of entry and residence of third country nationals for the purposed of seasonal employment, COM(2010) 379 final, Brussels, 13.7.2010, p. 9.
62 PETRA HELZFELD OLSSON
to Swedish law, the Migration Agency must withdraw the residence permit for the labour migrant if it turns out that the requirements related to the level of working conditions have not been fulfilled.7 If the labour migrant is in
Sweden when the residence permit is revoked, a corresponding decision on expulsion shall be adopted.8 According to the EU Blue Card Directive, the
Member States must withdraw the EU Blue Card if the holder did not meet or no longer meets the conditions for entry and residence laid down in the directive (Art. 9(1)b).
The requirement on salary thresholds is part of that package. In the Seasonal Workers Directive, the consequences of failure to adhere to the working conditions required are framed a bit differently. The Member States may withdraw the authorisation for the purpose of seasonal work where the entry provisions on working conditions were not or are no longer complied with (Art. 9(3)(a)). But, very importantly, any decision to withdraw the authorisation must take account of the specific circumstances of the case, including the interests of the seasonal worker, and respect the principle of proportionality (Art. 9(5)).
It is clear that an employer’s failure to uphold the level of working conditions prescribed in the entry conditions will lead to very severe consequences for EU Blue Card holders in the EU and for all labour migrants in Sweden. Yet, for workers covered by the Seasonal Workers Directive, a failure to adhere to the working conditions does not have to imply a withdrawal of the labour migrant’s permit to work and stay in the Member State. It depends on whether a withdrawal is required in a national context. However, if such a consequence is prescribed in national law, a proportionality test must be conducted before a decision to withdraw the permit can be taken.
Failure to adhere to the requirements – Consequences for the employer A failure to adhere to the required working conditions entails a high level of risk for the labour migrant in the Swedish and EU Blue Card regimes. The expected income will not be earned and the labour migrant may have to leave the country. This consequence in itself can hardly encourage the labour
7 See ch. 7 sec. 7(e), Alien’s Act (SFS 2005:716). The labour migrant may, if certain
circumstances are met, stay in Sweden for four months to look for a new job. The expulsion will be executed after that period if no job has been found.
FAIR ALLOCATION OF RISKS: A CHALLENGE FOR LABOUR MIGRATION SYSTEMS 63
migrant to try to enforce the required working conditions. If a failure is detected by the authorities, the labour migrant risks being expelled.9 This
situation can also be exploited by unscrupulous employers. Thus, it is crucial that other mechanisms are in force that encourage the employer to fulfil the prescribed working conditions. This subsection will discuss the extent to which the labour migration schemes analysed include such mechanisms.
According to Swedish law, a failure to uphold the level of working conditions prescribed has no immediate consequences for the employer. No sanctions apply. But it could affect the employer’s future possibilities to employ labour migrants. When the Swedish Migration Agency decides whether to approve an application for a work permit, it can argue that the offer is not serious and therefore the application should be denied.10
For work in specific sectors most prone to abuse, targeted checks on the employers are conducted. These sectors are berry-picking, cleaning, hotels and restaurants, construction, retail, farming and forestry, auto repairs, services and work through temporary agencies.11 Previous failures
to comply with the required conditions could close the door for those employers wanting to continue to employ labour migrants from third countries. This aspect could be categorised as a factor that could encourage the targeted employers to uphold the required working conditions.
For employers of EU Blue Card holders, there are no sanctions prescribed by the EU directive. There is no specific provision at all on sanctions in that directive.12
For seasonal workers, a different approach has been adopted. Art. 17 is devoted to the topic of sanctions against employers. The Member States are obliged to provide for sanctions against employers who have not fulfilled their obligations under the directive. Such sanctions shall include the exclusion of employers who are in serious breach of their obligations under the directive from employing seasonal workers. The sanctions shall be effective, proportionate and dissuasive (Art. 17(1)).
9 Problems related to the interaction of labour law and migration law have been
highlighted by a number of authors, such as B. Anderson, J. Fudge, M. Freedland, C. Costello, J. Howe, R. Owens and B. Ryan, just to mention a few.
10 See Legislative Inquiry SOU 2016:91, p. 64.
11 See the Swedish Migration Agency website (www.migrationsverket.se/English/
Private-individuals/Working-in-Sweden/Employed.html).
12 The EU principles on equivalence and effectiveness for national implementation of EU
64 PETRA HELZFELD OLSSON
Moreover, if the authorisation for the purpose of seasonal work is withdrawn pursuant to, among other things, failure to adhere to the admission requirements on working conditions, the employer shall be liable to pay compensation to the seasonal worker in accordance with procedures under national law. Any liability shall cover any outstanding obligations the employer would have to respect if the authorisation for the purpose of seasonal work had not been withdrawn (Art. 17(2)). According to Art. 17(3), the Member States may also adopt subcontracting liability procedures for seasonal workers.
It seems that the Seasonal Workers Directive provides for quite effective mechanisms. They could potentially both encourage the employer to adhere to the required level of working conditions and limit the risks for the labour migrants if failures occur.