Employment and social security rights of third-country nationals under the EU labour migration directives*

2018 ◽  
Vol 20 (2) ◽  
pp. 100-115 ◽  
Author(s):  
Herwig Verschueren
Keyword(s):  
Social Security ◽  
Migration Policy ◽  
Equal Treatment ◽  
Labour Migration ◽  
Member States ◽  
Seasonal Workers ◽  
Playing Field ◽  
Additional Protection ◽  
The Eu ◽  
Third Country Nationals

This article explores the employment and social security rights of third-country nationals guaranteed by a number of EU Directives which are specifically meant to promote and regulate labour migration to the EU. Some were agreed with a view to making the EU more attractive for labour migration from outside the EU. Others were meant to (partially) harmonise rights and/or procedures in order to create a level playing field between the Member States. More specifically, it examines the relevant provisions in the Blue Card Directive 2009/50, the Employers’ Sanctions Directive 2009/52, the Single Permit Directive 2011/98, the Seasonal Workers Directive 2014/36, the Intra-corporate Transferees Directive 2014/66 and the Students and Researchers Directive 2016/801. The article emphasises that this set of EU labour migration Directives are the result of a sector-by-sector approach. The EU failed to adopt an overall and common EU labour migration policy and corresponding legal instruments. Even with regard to entitlement to equal treatment in terms of employment and social security rights, these EU instruments lack a common approach and give the Member States room to provide for exceptions. In addition, these Directives do not contain any provisions regarding the aggregation of periods of insurance, employment or residence. As a result, they offer additional protection for the social security rights of migrant persons, but they need to be complemented by other instruments such as multilateral or bilateral agreements with third countries, or even human rights instruments.

scholarly journals The Labyrinth of Employment and Social Rights in the EU Intra-Corporate Transfer Directive

2020 ◽  
pp. 203195252096736
Author(s):  
Herwig Verschueren
Keyword(s):  
Social Security ◽  
Migrant Worker ◽  
Migration Policy ◽  
Equal Treatment ◽  
Temporary Workers ◽  
Member States ◽  
The Status ◽  
The Right ◽  
Rome I ◽  
The Eu

Directive 2014/66/EU on Intra-Corporate Transfer regulates the temporary secondment of key personnel and trainees from third countries to the Member States of the EU. It is part of the EU external labour migration policy and aims at facilitating this policy by setting up harmonised conditions for admission, residence and work of these migrants, including the right to move and work in another Member State. This article analyses the role and meaning of the provisions in this Directive relating to the employment and social security rights of intra-corporate transferees. They are the result of cumbersome negotiations and the compromises that were reached are ambiguously and inconsistently formulated. First, this article will highlight the relevance of the worker’s employment position for determining the scope of this Directive. Next, it will analyse the role of employment and social security rights in the implementation of the Directive by the Member States. These rights are relevant as criteria for admission, as grounds for rejection of an application, as grounds for withdrawal or non-renewal of an ICT permit and as conditions for short-term and long-term mobility within the EU. Subsequently, this article will scrutinise, in detail, the provisions of Article 18 of the Directive which guarantee equal treatment with the nationals of the host State in respect of employment and social security rights. Special attention will be paid to the interrelationship of this Directive with other EU legal instruments such as the Posting of Workers Directive, the Rome I Regulation and social security Regulation 883/2004. It concludes that the complicated and contradictorily worded provisions on employment and social security rights in this Directive reflect the ambiguity in the perception of the status of this type of migrant worker coming from a third country: are they to be considered as temporary workers or do they really participate in the labour market of the host Member States?

The Seasonal Workers Directive

2017 ◽  
Vol 8 (1) ◽  
pp. 28-44
Author(s):  
Margarite Helena Zoeteweij-Turhan
Keyword(s):  
Member State ◽  
Vocational Training ◽  
Family Reunification ◽  
Equal Treatment ◽  
Labour Migration ◽  
Unemployment Benefits ◽  
Member States ◽  
Seasonal Workers ◽  
The Uk ◽  
The Eu

The Seasonal Workers Directive, harmonising Member States’ laws regarding the entry, residence and certain labour rights of seasonal workers, entered into force in 2014 and should be implemented by Member States (except for the UK, Ireland and Denmark) by 30 September 2016. According to Article 23 of the Directive, in principle, third-country nationals coming to a Member State as seasonal workers are entitled to equal treatment with nationals of the host Member State. However, what does ‘equal treatment’ mean when there are almost no nationals doing seasonal work for comparison? Also, the Directive allows Member States to diverge from the principle with regard to family and unemployment benefits and education and vocational training. Furthermore, the Directive does not provide for family reunification, even though seasonal workers are allowed to work for periods of up to nine months per year in the host Member State. Considering the limitations to the principle of equal treatment, and the broad measure of discretion given to the Member States in the implementation of the Directive, can the Directive really improve the precarious position of seasonal workers? What is to be expected of the effectiveness of the Directive? Could the Directive also be attractive for application by countries (inside the EU or outside) that are not bound by the Directive? This article will try to answer these questions by critically analysing the Directive, setting it in historical perspective and comparing it other EU legal instruments on labour migration, focusing particularly on the content of a select number of rights. The article furthermore discusses the issue of gender equality in the (effects of the) EU regulation of labour migration. It finally also addresses the question of the attractiveness of the Directive for adoption by States that are not bound by it, in particular Switzerland, where the seasonal worker has remained a hot topic after officially having ‘disappeared’ from the radar in 2002.

scholarly journals LEGAL PROTECTION OF THIRD-COUNTRY NATIONALS IN THE EUROPEAN UNION

2016 ◽  
Vol 1 (127) ◽  
pp. 95-103
Author(s):  
N. Mushak
Keyword(s):  
European Union ◽  
The European Union ◽  
Member States ◽  
Eu Member States ◽  
Common System ◽  
Additional Protection ◽  
Eu Commission ◽  
The Eu ◽  
Common Policy ◽  
Third Country Nationals

The article is devoted to the legal analysis of the EU common policy in order to provide protection to third country nationals. To control the issues caused by a significant increase of the number of asylum seekers and refugees into the territory of the EU Member States the European Union is developing a common policy on asylum and protection of third-country nationals crossing the external borders of the EU Member States. The EU common policy in this area is the European Union coordination policy to establish common rules for asylum for third-country nationals; establish common rules to provide the additional security for third-country nationals who without obtaining the European asylum in whole, however, need the international protection; to create a common system of temporary protection for displaced persons in regard of their substantial influx; to determine common procedures for granting and withdrawing of a single asylum status or additional protection. Special attention is paid to the analysis of the asylum procedure of third-country nationals. As well as issues related to the protection of external borders, visa and immigration policies TFEU predicts a joint adoption by the European Parliament and the Council decision under the ordinary legislative procedure, id est voting for proposal of the EU Commission. Simultaneously, under the TFEU, if within one or more EU Member States there is an emergency situation characterized by a sudden influx of third-country nationals, the EU Council for the EU Commission proposal and acting after the consultations with the European Parliament may adopt temporary measures in favor of the interesting Member States. Nowadays the European Union is in dynamic and permanent development process of a common policy to provide protection to third-country nationals. This policy is implemented through the use of the EU method of coordination in matters relating to the establishment of the common status of asylum for third-country nationals; determining the status of a common additional protection for third-country nationals; the introduction of a common system of temporary protection for displaced persons; establishing of common procedures for granting and withdrawing of a common asylum status or additional protection.

scholarly journals The Importance and Application of the Principle of Equal Treatment of Third Country Nationals in the EU

2014 ◽  
Vol 1 (1) ◽  
pp. 174
Author(s):  
Ervis Moçka
Keyword(s):  
Legal Status ◽  
Fundamental Rights ◽  
Lisbon Treaty ◽  
Equal Treatment ◽  
European Union Policy ◽  
Member States ◽  
Important Principle ◽  
The Eu ◽  
Common Policy ◽  
Third Country Nationals

The communitarization of immigration and asylum disciplines and the beginning of a common European Union policy in such areas will begin to create more favorable conditions for the integration of third country nationals who are legally resident, in the territory of the EU. The Tampere European Council of 1999 stressed the need to provide to nationals of third countries rights and obligations similar to those of EU nationals, in order to eliminate social, economic and cultural discrimination. This could be possible through the approximation of the legal status of third country nationals to that of EU nationals. To achieve this goal, there are adopted secondary norms of Community legislation on equal treatment for certain categories of citizens of third countries as refugees, the long-term residents, etc. Regulation EC No 859/2003 extended the effects of the provisions relating to the coordination of national social security regimes and to third country nationals. This European common policy took a new development with the Lisbon Treaty. One of the objectives of the common policy on immigration is the one which provides an equo treatment to third-country national who are legally resident in one of the Member States. This attitude finds concretization even to several articles of the European Charter of Fundamental Rights, which after the Lisbon Treaty has binding legal effects as it has the same legal value of the treaties. The Directive 2011/98/EU aims to establish a single procedure for third country nationals to obtain a combined permit for both residence and work, establishing a series of rights for third-country nationals who are legally resident in a Member State. This directive, in certain sectors, provides an equal treatment of third country nationals with those national. But the text of the directive provides also the cases when EU Member States may derogate from the application of the principle of equal treatment. This paper aims to analyze legal instruments adopted by the EU which recognize the principle of equal treatment of nationals of third countries with nationals, as well as the ways provided to implement this important principle.

scholarly journals The Shoppers; Venue Shopping, Asylum Shopping: A Resolution in EURODAC?

2018 ◽  
Vol 331 ◽  
pp. 229-237
Author(s):  
Catherine Odorige
Keyword(s):  
Asylum Seekers ◽  
Migration Policy ◽  
The European Union ◽  
Member States ◽  
National Jurisdiction ◽  
Venue Shopping ◽  
Judicial Scrutiny ◽  
The Impact ◽  
The Eu ◽  
Third Country Nationals

The term shopping used in reference to two strictly legal/politically somewhat related issues ‘Asylum shopping’ and ‘Venue shopping’, belong to two different spheres of actors. Asylum shopping is descriptive of the action of asylum seekers selectivity, in choice of member state where they perceive better social and welfare conditions. Venue shopping, a concept introduced by Guiraudon in 2000, explain the action of movement by member states in the European Union from venues of national jurisdiction, less amenable to their search for more restrictive migration policy to venues howbeit transnational like transit countries and EU institutions suitable for their policy perspectives. This they did for the primary purpose of avoiding adversary activities of non-state actors and the judicial scrutiny within their national sphere. Common European Asylum System (CEAS) the Dublin Directive and the EURODAC are spill-over in the European integration Project, commonly referred to as the Schengen acquis in the area of migration and integration of third country nationals. The three directives are the results of policy search to administer the entrance and residence of third country nationals especially in the area of irregular migration. This paper seeks to examine the inter-relationship between the two actors to which the commercial term shopping describes, how an electronic regulation in EURODAC became a check to their ‘shopping.’ For the asylum seekers exposing their agency, for the member states reducing anxieties, and influenced the ceding of powers hitherto held by member states through (intergovernmental) negotiations to the EU (Supranational) and the impact of these policy measures in checking security challenges and sanitization of this angle of asylum administration in the EU.

scholarly journals SOCIAL SECURITY OF UKRAINE AND THE EU: ASPECTS OF CONVERGENCE AND IMPROVEMENT OF MIGRATION POLICY

2019 ◽  
Vol 5 (4) ◽  
pp. 50 ◽  
Author(s):  
Taras Vasyltsiv ◽  
Ruslan Lupak
Keyword(s):  
Social Security ◽  
Social Development ◽  
Labour Market ◽  
Migration Policy ◽  
The State ◽  
Security System ◽  
Labour Migration ◽  
The Social ◽  
Labour Potential ◽  
The Eu

Unresolved problems of social and economic development of Ukraine, exacerbated by critical negative consequences of military aggression and political instability, are accompanied by deep socio-economic contradictions and aggravation of large-scale social problems. At the same time, the qualitative system of social security, characteristic of the EU, is not formed. As a result, negative phenomena and trends are accumulated in social sphere there that manifest themselves in the critical deformations of social development, with the formation of threats of degradation and depopulation, the increase of environmental problems, deterioration of social structure, weakening of social guarantees of human rights that are evidenced and confirmed by mass and active labour migration of the Ukrainians abroad. Ensuring Ukraine’s social security objectively requires an in-depth study based on a systematic approach, applying EU principles, provisions, practices, and standards. The purpose is to substantiate approaches and means of convergence of social security of Ukraine and the EU and develop recommendations for the improvement of migration policy. Methodology. As the methodological basis of the study, theories of socio-economic growth, modern concepts of institutional and structural economic reforms have been worked out, methods of statistical, structural-functional, and system analysis, grouping have been applied. Results. The imbalances of social security of Ukraine and the EU have been determined according to the following components: labour market and employment of population; reproduction of population and labour potential of the state; migration and food security. Areas of accelerated asymmetry increase in the social development of Ukraine and the EU, which serve as a key factor in “pushing out” the population and high rates of labour migration from Ukraine to the EU Member States, have been identified. Strategic approaches and means of equalizing critical deformations and convergence of the system of social security of Ukraine in the process of integration into the EU have been determined; tools for improving the state migration policy have been developed, which implementation would result in improvement of the systemic and structural characteristics of labour potential migration. Conclusion. The study results obtained represent the existence of significant disparities in key indicators and components of the social security system of Ukraine and the EU. Low level of living standards and social protection of population serves as a factor in increasing the scope of external labour migration and, correspondingly, a critical weakening of human and labour potential of the state. Tools and means of the state policy of convergence of the social security system of Ukraine and the EU should focus on achieving the goal of systemic development of human capital and be implemented in the following directions: ensuring demographic security, upgrading health care system, renovating the quality of education, preserving cultural values, establishing a competitive labour market, improving housing affordability, social infrastructure development, systemic social insurance of population.

Regulation 1231/2010 on the inclusion of third-country nationals in EU social security coordination

2018 ◽  
Vol 20 (2) ◽  
pp. 86-99 ◽  
Author(s):  
Rob Cornelissen
Keyword(s):  
Social Security ◽  
Member State ◽  
High Standard ◽  
Equal Treatment ◽  
Social Security Systems ◽  
Open Questions ◽  
Long Time ◽  
The Uk ◽  
The Eu ◽  
Third Country Nationals

The EU regulations on the coordination of social security systems provide a high standard of protection for people moving within the EU. For a long time, third-country national workers have been excluded from this protection. This article shows that the explanation for this exclusion is to be found in the legal basis of the EU regulations. This article also demonstrates how developments in primary law in the last two decades have paved the way for the extension of the EU regulations to third-country nationals. Regulation 1231/2010 offers third-country nationals, in the field of social security, the same protection as EU citizens moving within the EU. However, this extension is subject to two conditions. For this reason, a considerable number of third-country nationals working in a Member State do not benefit from equal treatment as nationals of the host State. The article clarifies why Regulation 1231/2010 does not apply in Norway, Iceland, Liechtenstein, Switzerland and Denmark. Attention is paid to a number of challenges and open questions, such as the special position of the UK and the relationship between Regulation 1231/2010 and bilateral agreements concluded between a Member State and a third country.

Bariery w przepływie pracowników na rynku wewnętrznym – stary problem w nowych odsłonach

2016 ◽  
Vol 14 (4 (1)) ◽  
pp. 39-54
Author(s):  
Robert Grzeszczak
Keyword(s):  
Equal Treatment ◽  
The European Union ◽  
Integration Process ◽  
Labour Law ◽  
Member States ◽  
Political Criticism ◽  
Eu Policies ◽  
The Will ◽  
Free Movement Of Persons ◽  
The Eu

The issue of re-nationalization (disintegration and fragmentation) of integration process is manifested by the will of some of the Member States to verify their relations with the European Union. In the age of an economic crisis of the EU and in relation to the large migration of the population, there has emerged strong social and political criticism, on the European level, of the integration process, with some Member States even consideringtheir withdrawal from the EU. In those States, demands forextending the Member States’ competences in the field of some EU policies are becoming more and more popular. The legal effects of the above-mentioned processes are visible in the free movements of the internal market, mainly within the free movement of persons. Therefore, there are problems, such as increased social dumping process, the need to retain the output of the European labour law, the issue of the so-called social tourism, erosion of the meaning of the EU citizenship and the principle of equal treatment.

scholarly journals Member States’ social security agreements with India

2018 ◽  
Vol 20 (2) ◽  
pp. 173-187
Author(s):  
Pauline Melin
Keyword(s):  
Social Security ◽  
European Commission ◽  
Current Approach ◽  
Legal Analysis ◽  
The European Union ◽  
Member States ◽  
Bilateral Agreements ◽  
Country Case Study ◽  
The Eu

In a 2012 Communication, the European Commission described the current approach to social security coordination with third countries as ‘patchy’. The European Commission proposed to address that patchiness by developing a common EU approach to social security coordination with third countries whereby the Member States would cooperate more with each other when concluding bilateral agreements with third countries. This article aims to explore the policy agenda of the European Commission in that field by conducting a comparative legal analysis of the Member States’ bilateral agreements with India. The idea behind the comparative legal analysis is to determine whether (1) there are common grounds between the Member States’ approaches, and (2) based on these common grounds, it is possible to suggest a common EU approach. India is taken as a third-country case study due to its labour migration and investment potential for the European Union. In addition, there are currently 12 Member State bilateral agreements with India and no instrument at the EU level on social security coordination with India. Therefore, there is a potential need for a common EU approach to social security coordination with India. Based on the comparative legal analysis of the Member States’ bilateral agreements with India, this article ends by outlining the content of a potential future common EU approach.

‘Losing Leverage’ in the Neighbourhood: A Cognitive Frame Analysis of the European Union Migration Policy

2021 ◽  
Vol 58 (3) ◽  
pp. 302-323
Author(s):  
Jyri J. Jäntti ◽  
Benjamin Klasche
Keyword(s):  
European Union ◽  
Service Providers ◽  
Migration Policy ◽  
Burden Sharing ◽  
The European Union ◽  
Cognitive Frames ◽  
Playing Field ◽  
Power Shift ◽  
Security Problem ◽  
The Eu

The European Union (EU)–Turkey deal consolidated a shift in the EU’s migration policy. The deal is the culmination of the dominance of the security frame and depicts the continuous externalization of the EU’s responsibility of asylum protection and burden sharing. The strengthening of the security frame has weakened the humanitarian norms that previously dictated EU’s behaviour. This has led to the EU losing some of its comparative advantages in negotiations. Simultaneously, the instrumentalization of the value of asylum, paired with an increased number of asylum seekers, has given negotiation leverage to the neighbouring countries turned service providers. These changes in perception and norms have created a power shift, at the disadvantage of the EU, creating a more leveled playing field for negotiations between the parties. This article tracks the historical shifts in the global refugee regime to explain how today’s situation was created. Hereby, the existence of two competing cognitive frames—humanitarian and security—is assumed, tracked and analysed. While looking at the EU–Turkey deal, the article shows that the EU has started treating refugees as a security problem rather than a humanitarian issue, breaking the normative fabric of the refugee regime in the process. The article also displays how Turkey was able to capitalise on this new reality and engage with negotiations of other neighbouring countries of EU that point towards a change of dynamics in the global refugee regime.

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