This blog provides a brief analysis of some key EU legal texts on undocumented workers’ rights at work, focusing on labour rights and employment law. It is not meant to be an exhaustive overview of all relevant provisions – for a full overview, including international standards and the European Convention on Human Rights, check out our Guide to Undocumented Workers’ Rights at Work under International and EU Law available in English, Italian, Greek, French and Spanish.

Many key sectors of Europe’s economy rely on undocumented migrant workers. More often than not, workers’ precarious or irregular status is leveraged by employers to reduce their labour costs, by imposing particularly poor working conditions, such as extremely long hours without rest periods, and withholding or stealing workers’ wages.

But undocumented workers do have a range of rights at work that are enshrined in both international and EU legal frameworks. In the EU, several laws on fundamental rights, non-discrimination and equality, employment and health and safety, migration, anti-trafficking and victims’ rights provide for specific protections that also apply to undocumented workers.

To begin with, labour rights are human rights, so included in the EU Charter on Fundamental Rights. There are several provisions which are crucial for workers’ rights, in particular rights to freedom of assembly and association; information, collective bargaining and action; non-discrimination; effective remedy and fair trial; the protection against unjustified dismissal, and the right to fair and just working conditions. The latter is elaborated as working conditions which respect health, safety and dignity, and the rights to limitations of working hours, daily and weekly rest periods and a period of paid annual leave. These fundamental rights apply to all workers in the European Union, including when undocumented. For some aspects, specific EU directives go further in specifying minimum standards for these rights. We divide the EU directives between those that definitely apply to undocumented workers and those that should apply to them.

1.    Directives that definitely apply to undocumented workers

These are directives that refer to ‘people’, ‘any person employed’, or the legal text or related case law explicitly refers to ‘workers’ or ‘victims’ with irregular migration or residence status. In short, the law makes it clear that undocumented workers are covered too.

One of the most important EU instruments for undocumented workers is the 2009 Employers’ Sanctions Directive. While prohibiting the employment of undocumented people, the directive explicitly reiterates that undocumented workers have a right to be paid their wages, at least at the level of the statutory minimum wage or as agreed in collective bargaining agreements.

The burden of proving the existence of a working relationship still largely falls on workers. However, the directive introduces a presumption that employment relationships are at least 3 months and requires employers to prove if the person worked for them for less time. It also requires governments to ensure effective and accessible complaints mechanisms and legal procedures for undocumented workers to reclaim their wages from an employer. This Directive also provides for residence permits to be issued to workers who experienced serious exploitation, though drastically underused.

Beyond this specific instrument, undocumented workers are also covered by several laws setting minimum labour rights across the EU. In particular, undocumented workers also have the following rights under EU law:

• Specific health and safety protections (see the ‘Framework Directive on Health and Safety at Work’ as well as the EU Charter on Fundamental Rights);
• Maternity leave, paid at least to the level of national sick pay if the person has been in employment for 12 months or more before the onset of labour, and other specific protections for workers who are pregnant, have recently given birth and/or are breastfeeding (see the ‘Pregnant Workers Directive’);
• Payment of due wages and salaries, including limited coverage by state guarantee mechanisms in cases of employer insolvency (see the ‘Employers Insolvency Directive’, as well as the ‘Employers’ Sanctions Directive’);
• Non-discrimination in opportunities and conditions at work, at least on grounds of gender, racial or ethnicity, sexual orientation, religion or belief, age, or disability (see the ‘Racial Equality Directive’ and ‘Employment Equality Directive’ as well as the EU Charter on Fundamental Rights). .

Undocumented workers also have rights when they are victims of labour abuses that amount to a crime, under EU laws on victims’ rights and anti-trafficking.

2.    Directives that should apply to undocumented workers

There are also a number of directives that refer to a “worker” without any definition or apply to anyone in an employment relationship according to national law. Newer directives also refer to relevant case law from the EU Court of Justice (CJEU).

In one particularly significant case related to the EU ‘Employers Insolvency Directive’ (Tümer), the CJEU held that Member States could not define “employee” in a way that would exclude people based on their migration or residence status, as it would undermine the purpose of the directive, to establish minimum protections across the EU in the case of employer insolvency. In short, the Court found that all the protections provided for in the Directive apply equally to undocumented workers too.

This ruling concerned the ‘Employers Insolvency Directive’, and there is not yet specific CJEU case law confirming the application of other EU employment law directives that defer to national definitions of a “worker” or “employee”.

Nonetheless, considering the case law from the CJEU concerning employment relationships, the legal reasoning in the Tümer judgement and other labour and human rights standards, it seems clear that several other directives should also apply to undocumented workers.

Based on this analysis, undocumented workers should also have rights to, in particular:

• Specific limitations on working time and the right to daily and weekly rest periods (see 2003 ‘Working Time Directive’, as well as the EU Charter on Fundamental Rights)
• Specific provisions on paid holiday leave and parental leave (see 2003 ‘Working Time Directive’, ‘Parental Leave Directive’ until 2 August 2022 and from then the ‘Work-Life Balance Directive’, as well as the ‘EU Charter on Fundamental Rights’);
• Transparent and predictable working conditions, in particular advance information from employers about essential aspects of work, including tasks, renumeration and working hours, and limits to on-call work (see ‘Written Statement Directive’ until 1 August 2022 and from then the ‘Transparent and Predictable Working Conditions Directive’)
• Specific protections for children in employment (see ‘Young People at Work Directive’)
• Equal treatment in employment conditions when in part-time employment or employed by a temporary employment agency, and in health and safety protections when in fixed term and temporary employment (see the ‘Temporary Agency Workers’ Directive and the ‘Part-Time Work Directive’).

Limits of EU protections and key developments

The EU legislation is far from comprehensive. It currently does not cover minimum standards for key labour rights that apply to all workers according to human rights law and international labour standards, such as protection from unfair dismissal or payment of compensation and disability benefits in case of labour accidents. Some gaps are in the process of being addressed, for example through EC proposals on setting minimum wages and to improve the rights of platform workers. These should apply to undocumented workers.

At the same time, the greatest challenge for labour rights is enforcement, particularly when it comes to workers whose residence status is dependent on a particular job and employer or who is working irregularly. While several instruments have provisions on effective access to complaints mechanisms and remedy, there are enormous barriers to precarious and undocumented workers actually exercising their rights. In particular, in most EU member states there is a lack of legal clarity and safeguards to ensure migrant workers are not exposed to detention and deportation if they attempt to access labour justice and claim their rights in practice.

Nonetheless, there are undocumented workers who have individually or collectively managed to claim their rights through formal complaints mechanisms. NGOs, including migrant worker-led organisations, and trade unions are tirelessly organising and working with labour inspectorates, to attain remedy for workers and achieve structural change on national level, sometimes using EU provisions.

For example, in Belgium, the ‘effective complaints mechanism’ provision in the ‘Employers’ Sanctions Directive’ has been implemented using the professional confidentiality of labour inspectors to shield workers against direct immigration consequences if they file a complaint to the inspectorate. As a result, this complaints mechanism is regularly and increasingly used by undocumented workers to recover unpaid wages from former employers.

Strategic litigation can also play a key role in advancing the understanding and implementation of undocumented workers’ rights. For instance, in 2017 in France, the Confédération Générale du Travail supported a group of undocumented workers to claim unpaid wages and their regularisation before the labour tribunal in Paris. Evidence submitted during the case led to the recognition by the labour tribunal of “systemic and racial discrimination” against the workers who were assigned difficult and dangerous tasks, based on their origin.

There are also key developments in other areas of EU law which could have important impacts on how businesses respect their employee’s labour rights. For example, the 2023-2027 Common Agricultural Policy introduces ‘social conditionality’ from 2025, which will mean farms may face their EU subsidies being cut if they violate provisions in the EU directives on transparent and predictable working conditions and health and safety. Work at EU level is also underway to strengthen companies’ human rights due diligence obligations and explore potential import controls on products made with forced labour. Again, the crux will be the details of the legal texts on EU and national level and the practical measures in place so that all workers can actually signal violations and exercise their rights, including when undocumented, without any risk of immigration enforcement as a result.

Some of the protections outlined in this blog were discussed with labour and migration experts at a legal seminar webinar series on the rights of undocumented migrant workers in Europe, which was held in October 2021 together with the ETUC and ILO. You can find the presentations and recordings here. If you are a legal professional in some capacity and would like to be involved in our work to advance the rights of undocumented workers, please get in touch.

EU countries should do better to protect undocumented migrant workers’ rights under existing EU rules. This is what the EU Fundamental Rights Agency found in their latest report. The research finds major gaps in the implementation of the Employers Sanctions’ Directive when it comes to enabling exploited workers to get justice, nearly ten years since it came into force on 20 July 2011. It highlights the need to improve complaints systems, access to compensation and residence permits, and ensure labour inspectorates focus on protecting workers and not immigration law. This research echoes the experiences of our members.

This issue is not new. The European Commission’s (EC) own website summarises two main findings from its first evaluation report of the Employers’ Sanctions Directive from 2014: there are differences in the severity of the punishment in different EU countries, and there is room for improvement in all areas offering protection to irregular migrants.

Nonetheless, the EU has done little to encourage such improvements so far, and rather has pursued policies focused on stepping up detention and deportation that run at odds with fundamental rights. Only one evaluation report of the Employers’ Sanctions Directive was published in 2014, and the European Commission has since remained silent regarding undocumented workers’ labour rights.

Later this year, an evaluation report from the European Commission is finally expected, together with a political direction regarding the future of the policy.

While organisations representing workers have, and continue to, express concerns around the Directive, PICUM recognises and regularly uses its provisions that explicitly reaffirm undocumented workers’ labour rights.

A major focus has been the provisions in the Directive that require EU Member States to ensure there are effective mechanisms and procedures through which third-country nationals working irregularly may lodge complaints against their employers, introduce a claim and eventually enforce a judgement for any outstanding remuneration. Effective complaints mechanisms enable the exercise of a full range of rights of undocumented workers – as persons, workers or as victims of crime – stemming from various legislation.

Crucially, in order for the complaints mechanisms and legal procedures to be effective, they have to be accessible without risk of immigration enforcement.

However, labour inspection authorities have for the most part been tasked with checking work permits of workers, in order for sanctions to be imposed on employers in the case of irregular employment – in line with the ‘Employers Sanctions Directive’. While there are a number of important examples where it is not the case, in most European countries, undocumented workers risk immigration enforcement as a result of these checks. The FRA found that labour inspectorates share irregular migrants’ personal data with police or immigration authorities in 20 out of 25 EU countries bound by the Directive. There is a lack of safeguards to ensure this data is not used for immigration enforcement. Labour inspectors also frequently carry out inspections accompanied by police who directly carry out immigration checks.

This completely undermines the purpose of labour inspections (and the ILO Labour Inspection Convention), and access to labour rights for undocumented workers. The risk of deportation for most people with precarious or irregular status is equivalent to losing everything, being uprooted from your life, repeat victimisation and exposure to significant hardship and risk of harm.

This situation also enables the immigration system to be used as a tool for exploitation. Workers threatened with deportation are liable to accept poor pay and conditions. Deported undocumented workers can easily be replaced by others and the gains made through systematically under-paying workers and not declaring work make it financially worth the risk of sanctions. Authorities also face significant barriers to imposing sanctions without the evidence and engagement of workers.

As one of our members said: “While the Labour Inspectorate struggles with sanctions against employers, the Foreign Police is very effective and quick with sanctions against workers.”

By holding employers accountable for due wages, taxes and social security, the financial implications for them would be much more significant. And fundamentally, the complaints mechanisms would serve the state, public purse and social security system, the labour market and workers.

A crucial issue at stake is whether or not the EU will recognise this in its forthcoming report. We hope the European Commission will finally take a stand and clarify to member state authorities that the Employers’ Sanctions Directive requires complaints mechanisms and procedures to be effective, and therefore due safeguards must be put in place to enable engagement and access to remedy for workers, who should not face immigration enforcement as a result.

Information gathered or otherwise obtained by labour inspection authorities should be used to initiate procedures against employers for due social security, taxes, wages and sanctions, and where applicable to support workers to access relevant residence permit procedures, but not used to initiate immigration enforcement against workers.

Find out more in our submission to the European Commission’s consultation on Directive (June 2021).

According to the law, a report on its implementation is due every three years.

Likewise our analysis from April 2015, found extremely limited implementation of any of the protective elements in four EU countries. In 2017, we looked deeper into the situation in Belgium and the Czech Republic and found worker complaints mechanisms inadequate, inaccessible and ineffective, with only one known case across the two countries in which a worker had been able to claim unpaid wages in line with the provisions of the Directive.

This directive does not apply to all EU countries – Denmark and Ireland opted out.

Cover: Unsplash – Zhipeng Ya