A/HRC/23/46
employment of illegally staying third-country nationals in order to fight illegal
immigration,” and provides sanctions for those who employ them.
33.
Member States shall prohibit the employment of illegally staying third -country
nationals (Art 3.1) and oblige employers to require that a third -country national before
taking up the employment holds and presents to the employer a valid residence permit or
other authorization for his or her stay (Art 4.1.a). Sanctions shall include financial sanctions
and payments of the costs of return of illegally employed third country nationals in those
cases where return procedures are carried out (Art 5.2). Member States shall ensure that the
employer shall be liable to pay any outstanding remuneration to the illegally employed
third-country national (Art 6.1.a), and shall enact mechanisms to ensure that illegally
employed third-country nationals may introduce a claim against their employer and
eventually enforce a judgment against the employer for any outstanding remuneration.
34.
Article 13.1 provides that Member States shall ensure that there are effective
mechanisms through which third-country nationals in illegal employment may lodge
complaints against their employers. Furthermore, Article 13.4 envisages the granting, on a
case-by-case basis, of temporary residence permits to victims who are children, as well as
to victims of particularly exploitative working conditions, who cooperate with the justice
system. Member States shall ensure that effective and adequate inspections are carried out
on their territory to control employment of illegally staying third-country nationals (Art
14.1).
13.
The Seasonal Workers Directive
35.
On 13 July 2010, the Commission submitted a Proposal for a Directive of the
European Parliament and of the Council on the conditions of entry and residence of thirdcountry nationals for the purposes of seasonal employment (Seasonal Workers Directive). It
was presented as part of the EU’s efforts to develop a comprehensive immigration policy,
and was the first proposal focused mainly on low-skilled workers. The Directive is
currently at first reading.
36.
The proposal sets out the criteria for admission of third-country seasonal workers, in
particular the existence of a work contract or a binding job offer that specifies a salary
equal to or above a minimum level; a valid travel document; sickness insurance; evidence
of having accommodation; and sufficient resources during his/her stay to maintain
him/herself without having recourse to the social assistance system of the Member State
concerned. Third-country nationals who are considered to pose a threat to public policy,
public security or public health shall not be admitted (Art 5).
37.
Seasonal workers shall be entitled to working conditions, including pay and
dismissal as well as health and safety requirements at the workplace, applicable to seasonal
work as laid down by law, regulation or administrative provision and/or universally
applicable collective agreements (Art 16). Employers are required to provide evidence that
the seasonal worker will have accommodation ensuring an adequate standard of living
during his/her stay (Art 14). To make enforcement more effective, complaints mechanisms
should be put in place (Art 17). The maximum period of stay is set at six months in any
calendar year, as well as the explicit obligation to return to a third country after that period
(Art 11); there is no possibility of status change. Provision is made for facilitating the re entry in a subsequent season (Art 12). The Directive does not provide for entry of family
members.
14.
The Blue Card Directive
38.
Council Directive 2009/50/EC on the conditions of entry and residence of third country nationals for the purposes of highly qualified employment (the Blue Card
29