Recasting the Single Permit Directive: furthering the protection of migrants at work in the EU?

By Tesseltje de Lange, Professor of European Migration Law, Director of the Centre for Migration Law, Radboud University Nijmegen.

In its communication of 27 April 2022, the European Commission makes a political and economic case for a sustainable and common approach to labour migration. Indeed, most EU member states face ageing populations who require care, and post-covid-19 labour shortages are on the rise jeopardising the green transition. One of the legislative proposals tabled by the European Commission is a recast of the Single Permit Directive. Although the European Commission had contemplated conditions for admission for low- and medium-skilled workers in the new pact, this idea was abandoned. Admission conditions of low and medium-skilled workers are sufficiently addressed by national legislation, is the feedback the Commission received from the Member States.

The aim of the Single Permit Directive 2011/98/EU is twofold. It facilitates the procedure for TCNs to work and reside in an EU member state through a ‘single permit’ which combines work and residence permits. The second objective is to ensure equal treatment between lawfully working TCNs (irrespective of whether they have a right to residence for the purpose of work) and Member State nationals. The right to equal treatment has been developed further by the CJEU in Martinez Silva, INPS/W.S., O.D./INPS, and recently ASGI. The Directive can be criticised for its limited scope, excluding amongst others, seasonal workers, au pairs, self-employed workers and posted workers. Note that the Single Permit Directive does not set entry conditions, nor does it define grounds for refusal or renewal of single permits, these remain regulated at the national level or in the other EU migration directives. In its 2019 Fitness check, the European Commission concluded that some of the Member States had managed to seriously complicate the intended simple procedural requirements. While on 1 January 2021 23.7 million TCN reside in the EU, 5.3% of the population, in 2020 only 2.7 million held a single permit. It is safe to say that the Directive has not substantially contributed to attracting migrants to work in the EU. This is especially so if you consider France, Italy, Germany, Spain and Portugal together issued 75% of the single permits recorded in 2020. The low number of Single Permits granted in the other countries reflects a national practice to deflect from the application of EU migration law and to prioritise national migration schemes (read here). Instead of bringing the evading implementation practices before the Court of Justice of the EU, the Commission’s choice of action is a recast.

Aim and scope of the recast proposal

The aim of the 2022 proposal for a recast of the Single Permit Directive is to simplify and clarify its scope. It also sets out to improve migrant workers’ protection from exploitation. The scope is expanded only by deleting the Article 3(2)(h), currently excluding beneficiaries of protection. Deleting their exclusion makes Chapters II on procedures and Chapter III on equal treatment apply to working beneficiaries of protection. The envisaged scope is still narrow. It would be helpful for instance to expand the scope to migrant workers with national single permits predating the 2011 Directive. Seasonal Workers under Directive 2014/36, Intra-corporate transferees under 2014/66 and posted workers under Directive 1996/71 remain outside the scope of the Single Permit Directive, as their rights are regulated in the respective Directives. However, different rights with different migration statuses contribute to highly segmented labour markets. Harmonising the rights of migrant workers through expanding the scope of the Directive could contribute to more equal pay for equal work.

To increase legal certainty and protection, a definition of the employer is added. Proposed Article 2, para 1 (c) defines ‘employer’ as “any natural person or any legal entity, including temporary work agencies, for or under the direction and/or supervision of whom the employment is undertaken”. Recital no. 6 explains that where a Member State’s national law allows admission of third-country nationals through temporary work agencies established on its territory and which have an employment relationship with the worker, such agencies should not be excluded from the scope of this Directive. This new definition is similar to article 2(e) of the Employer Sanctions Directive 2009/52, levelling single permit holders’ rights and protection with the protection of illegally employed and illegally staying migrant workers. Family migrants with access to the labour market and working for a temporary work agency should fall within the scope of and protection offered by the Temporary Agency Work Directive and are already covered by the Single Permit Directive, but it can’t hurt to clarify this.

 Procedural fairness & institutional design

The recast prescribes in Article 4 that the Member States must allow an application to be submitted in the country by legally staying TCN. This would improve the effectiveness of the Directive and procedural fairness because it means that an international student will no longer be required to leave a Member State after graduation and apply for a single permit from abroad, possibly waiting for months before being able to return, and only then, after a considerable gap in legal residence and legal uncertainty, start the job. According to the proposed article 8(3) an application may be considered inadmissible on the grounds of volume of admission of TCN coming from third countries for employment and, on that basis, need not to be processed. However, clear from article 79, §5 TFEU as well, volumes of admission may only apply to migrants coming to work from outside the EU. For those who are present in the Member State or elsewhere in the EU, such as international students who change status to worker, the volumes of admission do not apply.

For people who arrive anew in the EU Member States, the recast prescribes that visa and single permit application procedures be merged to avoid rejections or delays in the visa procedure while the requirements for a single permit are fulfilled. The time limit for deciding on an application of four months (article 5) is not shortened, but the recast clarifies that within these four months the competent authorities have to make their assessment. They cannot, as some Member States apparently do, shift aspects of the decision such as a labour market test, ‘outside’ the single permit procedure so as to take their time and de facto attract as little skills and talents from outside the EU as possible.

As part of the procedural improvements, article 9 on access to information is somewhat expanded. It now obliges Member States to provide, upon request, adequate information to the TCN and the future employer on the documents required to make a complete application. The proposed recast obliges the Member States to make the information easily accessible, which usually refers to a website, and add information on the entry and residence conditions, including the rights, obligations and procedural safeguards of TCN and their family members. Although it doesn’t say, this concerns information on migration rights. It would be good to at least mention that this should include information on the employers’ obligations to inform the migrant worker of their worker rights under Directive 2019/1152 on Transparent and predictable working conditions.

Finally, article 10 on fees now clarifies that such fees are to be proportionate and shall (no longer  may) be based on the services provided for processing and issuing permits. This is supposedly a codification of the CJEU case law on disproportionate fees, yet the proposed wording differs from the wording in Article 12 of the recently adopted Blue Card Directive 2021/1883, Article 36 of the Students and Researchers Directive 2016/801, Article 19 Seasonal Workers Directive 2014/36, and Article 16 Intra-Corporate Transfer Directive 2014/66. The wording in the last two instruments which just says the level should not be disproportionate or excessive was also a codification of CJEU Case law, according to the Commission, and would be the preferred codification as the actual costs of the services provided might not at all be proportionate, if Member States can even calculate such costs.

Rights & Protection against exploitation

The recast aims to close two gaps. First, the gap between single permit holders and nationals. To this end, article 11, on the rights of the single permit holder, is supplemented with a paragraph 2 on the right to change employers during the validity of a single permit. Article 11(3) sets the parameters: the Member States will have discretion to require communication to the authorities on a change of employer according to a procedure in national law. They may require that a labour market check is applied to avoid the unlikely event of e.g. a bus driver switching to a job as IT specialist (unless there is a high need for IT specialists). Whichever way the Member States decide to implement their discretion, they have to decide within 30 days. In case of unemployment a still valid single permit shall not be withdrawn for at least the first three months (Article 11(4)) and if a new employer has been found and the labour market check is under way, surpassing those three months, the single permit holder should be allowed to remain on the territory, awaiting the outcome of the check. Indeed, the proposed Article 11 closes the gap between single permit holders and nationals because the latter need no permission to change jobs at all. Expanding the right to stay and finding a new employer likely      facilitates people to stay on in the EU, albeit to a lesser extent than highly qualified workers holding a EU Blue Card are offered. For comparison, Member States may allow longer periods of unemployment to accumulate before withdrawing or not renewing a Blue Card (Article 8(5) Blue Card Directive 2021/1883). The recast is not used to fully close the gap between migrants of different skills and wage-levels.

Secondly, the gap between single permit holders and irregular migrant workers is to be closed because the former are currently the less protected of the two. Irregular migrant workers are, to some extent, protected under the Employer Sanctions Directive, although reports show that this protection is seriously faltering (see e.g. FRA, CIE, and recent infringement procedures against Finland, Portugal and Slovenia). To close the gap, Member States shall act on possible infringements of the right to equal treatment with nationals enshrined in Article 12 Single Permit Directive. Preventive measures shall include monitoring and inspections in accordance with national law or administrative practice. Effective, proportionate and dissuasive employer penalties of national law pursuant to Article 12 must be laid down in legislation. Only minor changes to Article 12 on the right to equal treatment are foreseen, mostly just clarifications, and the right to restrict these remains in place.

Article 13(3) Single Permit Directive proposes protection of lawful migrant workers beyond the protection offered to irregular migrant workers. To this end, labour inspections and other competent authorities must have access to the workplace to perform their inspections, which also follows from Article 12 ILO Labour Inspection Convention, 1947 (No. 81), ratified by all EU Member States. Somewhat an odd duck in a migration law instrument is that Article 13(3) also, where provided under national law in respect of nationals, supports worker representatives’ access to the workplace. In addition, effective complaint mechanisms and legal redress against employers have to be in place (Article 14).  Article 14(3) of the proposed recast reads that third parties, which have, in accordance with the criteria laid down by their national law, a legitimate interest in ensuring compliance with the Directive shall be enabled to file complaints against employers. Third parties should be able to act (on behalf of) the migrant before national courts; legal aid for the migrants is however not accounted for. Not all Member States grant Unions or NGO’s representing migrant workers’ standing. The objective of Article 14 is to increase the likelihood of complaints. One would hope that the recasts’ reference to third parties ‘opens the eyes’ of NGO’s and invites them to contest the limited national interpretations of their legitimate interest in protecting migrant workers’ rights. If put in practice, these protective measures could contribute to the enforcement of the rights of migrant workers, their fair treatment, and overall dignity while at work in the EU Member States.

The proposed recast of the Single Permit Directive meagrely contributes to welcoming people with sought after skills and talent. It contributes by increasing the overall effectiveness of the directive through improved procedural fairness, shortening procedures and enabling in-country applications. Also, it pays attention to improve the rights of working migrants to complain, to protection, also from third parties. This should contribute to curbing the risk of abuse, an objective that can be labelled as welcoming, placing the value of human dignity at the core of the instrument. However, the Single Permit Directive remains focussed on streamlining national entry procedures and migrant worker rights and does not, as was suggested in the 2019 Pact, deal with entry conditions for low- and medium skilled labour migrants.