AEDH can only regret the adoption by the European Parliament, on 5th February, of the directive “on the conditions of entry and residence of third-country nationals for the purposes of seasonal employment”.
Among the four texts of the “labour migration” package of the Hague Programme, the seasonal workers directive is the least protective of workers’ rights, and despite some limited guarantees, AEDH considers that it will not put an end to the exploitation of the persons concerned. One may even fear that the very strict control over the access to seasonal employment and their unsuitability for this specific activity will in fact lead to an increase in clandestine work.
The Hague Programme indeed endeavoured to divide rights of migrant workers proportionally to their qualifications, considering them as simple adjustment variable of the EU “economic needs”, far from the spirit of Tampere and from an inclusive vision of immigration. In this context, seasonal workers are treated as a sub-category of the useful workforce and have been excluded from the scope of the EU Single Permit directive which was supposed to ensure common rules and rights to all third-country nationals who are employed and who do not have the long-term resident status.
The adopted directive remains unclear on numerous aspects and is very restrictive in terms of residence and contract.
The definition of seasonal worker is the following: “third-country national who retains his/her principal place of residence in a third country and stays legally and temporarily for the purposes of employment in the territory of a Member State to carry out an activity dependent on the passing of the seasons, under one or more fixed-term work contracts concluded directly between the third-country national and the employer established in that Member State”.
Seasonal workers must therefore, prior to any stay, have a contract with an employer; in most cases, the role of intermediaries will thus be crucial for the establishment of this contract. The intermediaries will have even more power, while they are already the source of traffic of workforce. This role of power can only increase, in absence of any risk of sanctions, contrary to employers. For many seasonal workers, the alternative will be to come irregularly, or, after a first legal seasonal work, not to return to their country of origin in violation of the obligations of the directive. In both cases, if they are discovered, these workers are running the risk of being expelled and of not being allowed again to obtain a residence permit and a legal employment in EU countries and will therefore be condemned to clandestinity and insecurity.
Insecurity also characterises legal residence since States are not required to compel employers to pay travel expenses and health insurance, nor to provide family and unemployment benefits.
AEDH would like to highlight that the directive adopted by the Parliament does not guarantee:
- Equal treatment between workers in their workplace;
- Standards equal to those applied to EU seasonal workers
- Protection of economic and social rights in compliance with European standards and, ad minima, with standards of the “Convention on the Protection of the Rights of All Migrant Workers and Members of their Families” as well as of the International Labour Organization (ILO);
- Access to long-term resident status or a comparable right, after consecutive years of seasonal work.
More generally, it is the legal architecture itself, created by the “Policy Plan on Legal Migration”, the directive on seasonal employment only is a part of, which leads to a discriminatory treatment between different categories of migrant workers and to limited protection and rights for seasonal workers from third countries.
Therefore, there is a high risk that this directive will only lead to more precariousness, clandestinity, and exploitation of migrant workers concerned, which is far from the good intentions proclaimed. That is why AEDH is asking for an all-embracing status of labour migration, based on equal rights regardless of nationality; this would be the best guarantee given to seasonal workers.
AEDH is calling on the EU institutions to break with a utilitarian logic of labour migration, to consider migrant workers as what they really are: human beings; this in line with article 20 of the Charter of Fundamental Rights which stipulates that “everyone is equal before the law” and pursuant to the guidelines set by the Commission under the Stockholm Programme, that “the EU must strive for a uniform level of rights and obligations for legal immigrants comparable with that of European citizens”.