Labour Rights of Undocumented Migrant Workers: what does the EU say?

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.