“The Recast Single Permit Directive: Moving Forward, but not on More Legal Migration Pathways”
By Tesseltje de Lange, Professor of European Migration, Director of the Centre for Migration Law, Radboud University Nijmegen
Introduction
The 2020 Pact on Migration and Asylum made a promise of better regulation of legal pathways into the EU. The Pact called for a “well-managed system”, seeing that migration can “contribute to growth, innovation and social dynamism.” It also said it would contribute to sustainable legal pathways to attract talent to the EU. The European Commission acknowledges that “Key societal challenges faced by the world today – demography, climate change, security, the global race for talent, and inequality – all have an impact on migration.” 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 labour shortages are on the rise jeopardising the green transition. European economies demand migrant workers to address these challenges. Hence the need for more legal migration pathways. Legal pathways may also help to decrease the use of irregular pathways, unsafe and to the benefit of smugglers.
Besides funding EU Talent Partnerships, and the proposed EU Talent Pool Regulation, so far two legal migration Directives have seen a recast: the Blue Card Directive 2021/1883/EU and the recast Single Permit Directive 2024/1233/EU replacing Single Permit Directive 2011/98/EU. The recast entered into force on 21 May 2024 and Member States have until 21 May 2026 to transpose the changes into national law. This blog critically assesses the Recast Single Permit Directive.
The recast and the missing link to more legal pathways
When it comes to labour migration, the EU legislators’ mandate is tied. According to article 79, §5 TFEU the Member States have the prerogative to determine volumes of admission of third-country nationals (TCNs) coming from third countries to their territory to seek work, whether employed or self-employed. In the 2020 Communication on the Pact (p. 27) the European Commission contemplated adding conditions for admission for low- and medium-skilled workers, unfortunately this idea was abandoned in the April 2022 Proposal for a recast of the Single Permit Directive (p. 8). On the recast proposal see my earlier blog.
Thus, the Single Permit Directive does not set entry conditions, nor does it define grounds for refusal or renewal of single permits. Such remain regulated at the national level or in the other EU labour migration directives. Although the Member State’s discretion to set volumes of admission does not nullify the EU mandate, politically, it seriously curbs the EU’s room to manoeuvre in designing more legal pathways through setting conditions for admission. The result is that Member States compete amongst each other with national labour migration schemes. People interested in coming to Europe for the purpose of work must inform themselves of different labour migration policies in 26 countries to establish where their skills allow for entry into the EU. The proposed EU Talent Pool Regulation aims to make this doable. If anything, albeit a common market in many aspects, the EU is not common labour market for TCNs.
Aim and scope of the recast
The aim of the Directive is threefold. Firstly, it aims to facilitate the procedure for TCNs to work and reside in an EU member state through a ‘single permit’ which combines work and residence permits (Chapter II). Secondly, its 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 (Chapter III). Thirdly, it aims to contribute to better protection and enforcement of the rights of migrants at work in the EU.
Welcomed is the fact that the scope of the Directive is expanded and now Chapter III on equal treatment applies to working beneficiaries of protection although still the Directive does not apply to beneficiaries of temporary or subsidiary protection (article 3(2) sub f-h). Moreover, the Directive applies to all migrants holding a residence permit for purposes other than work (article 7). Yet, it does not apply to au pairs (article 3(2) sub e), self-employed (article 3(2) sub k) or sea farers (article 3(2) sub l). Also, the Single Permit Directive does not cover Seasonal Workers under Directive 2014/36 or Intra-corporate transferees under 2014/66 (article 3(2) sub e) nor posted workers in general, thus excluding those posted under Directive 96/71, as amended by Directive 2018/957. Their rights are regulated in the respective Directives. The different rights with different migration statuses contribute to highly segmented labour markets. This can be especially problematic in the case of lenient conditions for entry and access to a Single Permit status in some Member States in combination with subsequent intra-EU Posting of the Single Permit status holders to another EU Member State. This has become a business model for employers that either try to circumvent national labour migration restrictions or engage in a business model trying to cut labour costs, see e.g. European Labour Authority report (2023), p. 35.
Procedural fairness & institutional design
Applications for a single permit status can be filed from outside as well as in-country by legally staying TCN (article 4(2) SPD) or their employer (article 4(1)). This novel in-country application improves the effectiveness of the Directive because it means, for example, that an international student will not be required to leave after graduation before becoming eligible for a single permit, possibly waiting for months before it is processed. Note that the Member States have discretion to set volumes of admission for people newly arriving for the purposes of work, but not for those already here, like students transitioning into workers (article 1(2) SPD and 79(5) TFEU).
Within the 90-day time limit for adopting a decision, Member States must check the labour market situation, where such a check is carried out in connection with an individual application for a single permit (article 5(2) SPD). Member States do not have to perform a general check of the labour market situation that is not linked to an individual application for a single permit within the 90 days. Furthermore, if a visa is required, its processing time does not fall within these 90 days, although that was part of the Commissions’ initial proposal to speed things up. Now, Member States should “endeavour to issue the requisite visa to obtain a single permit in a timely manner” (recital 4), which is rather vague. In addition, the often time-consuming recognition of qualifications does not need to be completed within the 90 day period (recital 18). Interestingly, EU recommendation 2023/7700 on the recognition of qualifications of 15 November 2023 does ask of the Member States to enhance their capacity to simplify and expedite recognition procedures and provide relevant support and information to TCNs, recognition authorities, public employment services, labour inspectorates and migration authorities (recital 35) “making the Union’s labour market more attractive to third country nationals and to facilitate their integration into the labour market in line with the needs of the Union economy and society.” (objective 1 of said recommendation).
The competent authority must notify the decision to the applicant (employer or worker) in (article 5(3) SPD). If the employer submits the application, Member States shall ensure that the employer informs the TCN in a timely manner. Placing the authorities at such a distance from the migrant worker may serve efficiency, but it may make it more difficult for the worker to know where to go in case they would want to come forward to report something is amiss, e.g. an abusive situation.
The European Parliament must be given credit for trying to include a privileged position for EU Talent Partnership participants. According to the Pact, the Talent Partnerships are a key tool of the Commission regarding its external dimension in combination with the aim to “boost international labour mobility and develop talent in a mutually beneficial and circular way.” (On the Talent Partnerships see the 2022 Odysseus Report
for the EPRS). In the end, the recast does not offer anything for the effective implementation of ‘Talent Partnerships’, but for a meagre reference in recital (20) to the – optional – accelerated processing of single permit applications.
As part of the procedural improvements the Member States must make information easily accessible, e.g. on a website, and add information on the entry and residence conditions, including the rights, obligations and procedural safeguards of TCN and their family members (article 9 SPD). That information should include information on workers’ organisations, to facilitate better protection at work (recital 26). This obligation supplements Directive 2019/1152 on Transparent and predictable working conditions which already obliges employers to inform employees, including TCN, of their worker rights.
The SPD allows for a processing fee to be paid by the employer, which shall not be disproportionate or excessive. The employer “shall not be entitled to recover such fees from the third-country national.” (Article 10). Obliging the employer to pay the costs fits with the employer obligations enshrined in the Global Compact on Safe. Orderly and Regular Migration (GCM). However, research shows how employer-sponsorship – including the covering of fees – constrains mobility of migrant workers and can be questioned for its ethics (Wright et al 2016). It will also be difficult for the authorities to inspect whether employers do not informally recover these costs from workers.
In short, the procedure is improved from an efficiency perspective, which likely makes the EU a more attractive destination and somewhat lessens the administrative burdens for employers recruiting abroad. However, the better management does not equal more legal pathways nor better protection of single permit holders in case of situations of insecurity or abuse.
Rights: equal treatment, changing employer & secured residence in case of unemployment
The gap in equal treatment of single permit holders compared with nationals is somewhat closed by the recast.
Firstly, the fields in which TCN workers enjoy equal rights with nationals are listed in Article 12 SPD and include working conditions, including remuneration and dismissal, as well as health and safety at the workplace; The recast adds the terms of employment, working hours, leave and holiday as well as equality of treatment between men and women. It goes without saying that EU Directives on such aspects of social policy often already cover all workers, hence also single permit status holders. See for example Directive 2019/1158 on work-life balance for parents which applies to all workers. Furthermore, single permit holders have a right to equal treatment in respect of the freedom of association and affiliation and membership of an organisation representing workers or employers, or of any organisation whose members are engaged in a specific occupation, including the benefits conferred by such organisations. Here the recast adds the right to strike and take industrial action, including the right to negotiate and conclude collective agreements. Again, such rights are also enshrined in article 28 European Charter of Fundamental Rights on collective bargaining and action.
Equal treatment of single permit status holders also covers the right to education and vocational training and to recognition of diplomas, certificates and other professional qualifications, in accordance with the relevant national procedures. Equal treatment in the field of education and vocational training can be limited though. Furthermore, equal treatment expands to branches of social security, as defined in the EC Regulation on the coordination of social security systems. On the topic of social security, there is ample case law, for an overview see the CMR newsletter on CJEU judgements. Novel, and especially relevant in the case of unemployment or when someone wants to change employers is the access to information and advice services afforded by employment offices.
Secondly, the single permit holder is tied to a specific employer, an essential aspect of so-called demand driven labour migration systems commonly in place in EU Member States. This tie makes that leaving ones’ employer means losing one’s residence status. Again, this means that in case of abuse, people may not feel free to leave or report the abusive situation. How to overcome this risk was at the core of the political debate over the recast (described by myself and Marielle Falkenheim (2023) here: Precarity prevented or reinforced? Migrants’ right to change employers in the recast of the EU Single Permit Directive. Now, according to Article 11(2), Member States shall allow a single permit holder to change employer. So far so good. How this will work in practice all depends on the conditions Member States may subject this right of a single permit holder to change employer to. These conditions may entail, according to article 11(3): a) a notification according to procedures in national law – suspending the right to change for a maximum of 45 days; b) the change to be subject to a check of the labour market situation, however, only if the Member State carries out such checks for single permits at all; c) require a minimum period of employment with the first employer which shall not exceed either the duration of the contract or the permit, and in any case, not exceed six months. Although recital (41) calls for appropriate mechanisms to monitor the proper enforcement of the Directive, Article 17 on reporting does not demand of the Member States to provide statistics on the use of the right to change employers. Such seems a missed opportunity for measuring the effectiveness of the Directive in protecting migrant worker rights.
Thirdly, in case of unemployment during the first two years of stay while holding a single permit, the permit shall not be withdrawn for at least the first three months (Article 11(4)). In case of unemployment after a period of two years, the single permit holder will have six months to find a new job that would have them qualify for a renewal of their single permit. In case 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. The unemployment must be notified to the authorities. Also, Member States may require single permit holders to provide evidence of having sufficient resources to maintain themselves without recourse to the social assistance system of the Member State concerned if the period of unemployment exceeds three months. This is a meagre compromise compared to what MEPs (Amendment 76, Draft Report 21 November 2022) asked for, which was a nine months job searching period in case of unemployment, similar to international students under article 25 of the Students and Researchers Directive 2016/801/EU postgraduation. The Council position was to only allow for a continued stay of two months in case of unemployment; hardly a realistic period of time for anybody to apply for a new job. The compromise text is thus to be welcomed as offering a relatively realistic option for single permit status holders who become unemployed and want to try to remain in the EU.
In sum, the EU co-legislators agreed on improving the rights of TCN at work in the EU in respect of their equal treatment with nationals, the right to change employers and to search for work in case of unemployment. The Commission would do good to monitor closely the actual implementation of and engagement with these rights on the ground, overlooked in the reporting obligations.
Protection against exploitation
The Recast SPD considers improved complaint mechanisms, monitoring, assessment, inspections and penalties, particularly in sectors identified as being at high risk of violations of labour rights, in accordance with national law or administrative practice. These should contribute to curbing the risk of abuse, an objective that places the value of human dignity at the core of the instrument. However, the proof of this noble intent, will be in the eating.
The Member States must act on infringements by employers (including temporary employment agencies, recital 8) of national provisions on equal treatment adopted pursuant to Article 12 (article 13(1) SPD). Member States shall provide for penalties against employers who have not fulfilled their obligations under the Directive (article 13(2) SPD. Penalties shall be effective, proportionate and dissuasive.
Again, more could have been done. The proposal to protect migrant workers by obliging the Member States to give labour inspections and other competent authorities access to the workplace to perform their inspections, following from Article 12 ILO Labour Inspection Convention, 1947 (No. 81), ratified by all EU Member States, did not make it into the compromise text. Similarly, access to the workplace for worker representatives was proposed, but did not make it into the final text, weakening its aim to protect.
The recast is also meant to increase the likelihood of complaints (article 14). To this end equal treatment with nationals regarding measures protecting against dismissal, such as access to complaint mechanism, made it into the Directive (article 13(3) SPD). However, the situation of nationals and TCN can hardly be called equal. Nationals do not jeopardize their right to stay in case of a complaint, while migrant workers (fear they) do. Besides making a complaint individually, 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. 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.
Finally, it is important to note the EP proposed revision of the mandate of the European Labour Authority (ELA). This will allow the ELA to better support often-understaffed Member States’ labour inspectorates enforcing migrant worker rights, especially when single permit holders are at work in cross-border contexts.
To conclude: missing out on more legal pathways
The 2020 Pact promised more sustainable legal pathways to attract talent to the EU. The Single Permit Directive recast was one of the instruments the Commission named to achieve this promise. While the recast can be seen as an improvement on most counts discussed above, even if it likely delivers on the goal of “well-management migration”, it could have offered more. While improving the protection of migrant workers against employer dependency and abuse, proposals for better protection did not make it into the final text. The recast did not deliver on the promise of more legal pathways at all. For now, the Single Permit Directive remains a set of norms for people coming in through other legal pathways designed in other EU Directives or at the national level.
Reprinted from the Odysseus Network blogpost.