1. INTRODUCCIÓN
1.6. Factores de riesgo para DSP
The presented analysis of the gaps and barriers across the legal migration instruments shows that they raise issues of differential or unequal treatment ‘by design’ on the basis of the worker-by-worker and sectoral approach and differential treatment of EU Blue Card holders, who are granted better and ‘fairer’ working and living conditions than ICTs, researchers and seasonal workers. Despite the fact that EU directives contain specific equal treatment provisions, Member States are still allowed to apply restrictions to certain categories of TCNs which are lower for EU Blue Card holders. Therefore, the benchmark for equality of treatment demonstrates that first admission directives allow for differentiated treatment of the different categories of migrant workers under EU law on the basis of skills, sector of employment and length of residence, and between citizens and TCNs. This differentiation appears unjustified in all cases and leads to discrimination because it seems to be driven by factors such as economic interests of the Member States during the negotiations of these instruments (Annex 3: Table 23 for an overview).
The assessment of the benchmarks in the area of work authorisation shows that only the Blue Card Directive and the Seasonal Workers Directive explicitly provide for change of employer, subject to specific limitations. In reality, seasonal workers have more limitations on changing their employers than Blue Card Holders (see Annex 3, Gaps 3 (G3)). This possibility is implicitly provided for researchers. ICTs, however, are tied to their employer. Even if one argues that ICTs are a special case of temporary posted workers and different treatment is justified, the added value of EU law in the field of legal migration could be in providing a more consistent approach to the implementation of this labour standard concerning the possibility of changing employers.
342 Z. Vankova (2018), “Circular migration from the Eastern partnership countries to the EU – the rights of migrant workers in Bulgaria and Poland”, PhD dissertation, Maastricht University, funded under the FP7-PEOPLE-2013- ITN call of the Marie Curie Actions — Initial Training Networks funding scheme (Project number – 608417). 343 Ibid.
344 European Parliament (2017), Explanatory Remarks of the on the proposal for a directive of the European Parliament and of the Council on the conditions of entry and residence of third-country nationals for the purposes of highly skilled employment (COM(2016)0378 – C8-0213/2016 – 2016/0176(COD)), 28 June.
Furthermore, the analysed instruments do not explicitly legislate for change of occupation, which is a direct result of the EU’s sectoral approach to labour migration. This means that depending on the transposition into national law, only the Blue Card Directive could fulfil the benchmark in the area of work authorisation pertaining to free access to employment in all industries and occupations with a maximum restriction of two years. This also means that seasonal workers cannot look for alternative employment other than seasonal work as defined by the respective Member States, as the majority of Member States require leaving the country in order to change ‘the legal migration purpose’. Allowing for such a possibility without being obliged to leave the country is another benchmark in this policy area (see Annex 4). However, Member States can provide more favourable provisions to TCNs who come as seasonal workers on the basis of bilateral agreements (Article 4 of the Seasonal Workers Directive).345 The application of bilateral agreements in the field of labour migration is in line with International Labour Standards.346 Moreover, only the Blue Card Directive explicitly provides that unemployment does not automatically lead to permit withdrawal (unless said employment is for more than three months), making it the only legal instrument fulfilling this benchmark in the field of work authorisation (see Annex 3, Gaps 4 (G4)).
Facilitation of circular and return migration policies is another benchmark employed by this Research Paper. The analysis shows that Blue Card holders are the only category which can benefit from extensive circular migration-friendly policy options that allow for absences from the territory of the Member State while accumulating residence periods for access to long-term residence (see Barrier 3 (B3) in Annex 3). Furthermore, circular migration cannot commence without a visa application (unless migrants are exempt on the basis of their nationality) and depends on entry conditions. The Research Paper demonstrated that there are numerous barriers in this area related to application procedures, labour market tests and other requirements.
The Research Paper also assessed whether migrants have a right to free movement and choice of residence within the Member State where one is lawfully resident. The assessment of this benchmark showed that all first admissions directives provide for mobility and choice of residence. The Seasonal Workers Directive, however, falls short of providing sufficient guarantees to address employer- organised accommodation (see Gap 5 (G5) in Annex 3). Furthermore, of the first admissions directives, the Blue Card Directive and the Students and Researchers Directive (even though implicitly), are the only two instruments that fulfil the benchmark for the facilitation of prolonged or permanent residence (see Gaps 6 (G6) in Annex 3). In addition, The Research Paper identified different regimes of intra-EU mobility provided for the different categories of migrants (see Gaps 7 (G7) in Annex 3).
Comparing the requirements for different categories of migrant workers, it becomes evident that there are currently four different regimes for family reunification (see Gaps 9 (G9) in Annex 3) and facilitation of these policies also depends very much on the skill level of the migrant. All highly qualified/skilled categories (Blue Card holders, ICTs and researchers), depending on their contracts, could enter and stay on temporary permits, which means that the temporary stay is not the leading factor when allowing for this right. Despite the fact that seasonal work concerns a temporary stay, these workers are the only migrant worker category excluded from the scope of the Family Reunification Directive and the right to family reunion, along with other temporary permit holders under national law. This is not in line with
345 There is still no available data on the application of the directive in different Member States and the use of bilateral agreements by different Member States.
346 ILO (2010), Proposal for a Directive of the European Parliament and of the Council on the conditions of entry and residence of third-country nationals for the purposes of seasonal employment, COM(2010) 379, ILO Note based on International Labour Standards with reference to relevant regional standards, p. 6 (www.ilo.org/wcmsp5/groups/public/---europe/---ro-geneva/---ilo-
ILO standards. Therefore, the benchmark on obligations to facilitate family reunion can be considered only partially fulfilled. In addition, the Family Reunification Directive allows Member States to impose additional requirements, which can delay family reunification and disrupt family life. The CJEU has on several occasions underlined the need for Member States to apply the directives consistently with fundamental rights norms.347
The assessment of the benchmarks in the field of social security coordination and recognition of qualifications (see Annex 3 and Annex 4) shows that the current EU legal migration acquis does not remedy barriers in the field of recognition of qualifications and social security coordination related to the developed national instruments in the Member States. These barriers, however, concern all categories of workers. The Research Paper demonstrates that the first admissions directives are relevant to the social security rights of TCNs but are not instruments that coordinate social security systems (see Gaps 8 (G8 in Annex 3). For instance, these directives do not contain any provisions on aggregation of periods of insurance, employment and residence. For migrant workers this could mean that even in cases where they have fulfilled such periods in their home country, they might not be able to bring these into account in order to obtain the right to social security benefits that, according to the national legislation of the host Member State, depend on having fulfilled such waiting periods.348Furthermore,
none of the legal migration instruments provide for the reimbursement of social security contributions, which is another benchmark in this policy area.This Research Paper finds that the EU Single Permit Directive does not sufficiently address the gaps and barriers introduced by the ‘first entry’ directives. For example, t`he first admissions directives also fall short of fulfilling the benchmarks in the field of recognition of qualifications (see annex 4), and gaps and barriers persist especially when it comes to regulated professions (see Annex 3, Gaps 10 (G10) and Barrier 8 (B8). The presented analysis and benchmarks assessment shows that the conclusion drawn in 2011 by Peers is still valid: “the EU is still some way off developing a fair and comprehensive policy on legal immigration”.349 There is a clear role for the EU to contribute to promoting and ensuring a common level playing field of international and regional human rights and labour standards protection (non-discrimination among workers); otherwise, effectiveness of EU secondary law on legal migration could be undermined.
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347 See for example on the Family Reunification Directive: CJEU, Grand Chamber, Case C-540/03, European Parliament v. Council, ECR 2006 I-5809, 27.06.2006.
348 See also H. Verschueren (forthcoming), “Employment and Social Security Rights of Third-Country Nationals under EU Labour Migration Directives”, European Journal of Social Security.