Employment and social security rights of third-country nationals under the EU labour migration directives*
| Author | Herwig Verschueren |
| Date | 01 June 2018 |
| Published date | 01 June 2018 |
| DOI | 10.1177/1388262718771792 |
| Subject Matter | Articles |
Article
Employment and social
security rights of third-
country nationals under
the EU labour migration
directives
*
Herwig Verschueren
University of Antwerp, Belgium
Abstract
This article explores the employment and social security rights of third-country nationals guar-
anteed by a number of EU Directives which are specifically meant to promote and regulate labour
migration to the EU. Some were agreed with a view to making the EU more attractive for labour
migration from outside the EU. Others were meant to (partially) harmonise rights and/or pro-
cedures in order to create a level playing field between the Member States. More specifically, it
examines the relevant provisions in the Blue Card Directive 2009/50, the Employers’ Sanctions
Directive 2009/52, the Single Permit Directive 2011/98, the Seasonal Workers Directive 2014/36,
the Intra-corporate Transferees Directive 2014/66 and the Students and Researchers Directive
2016/801. The article emphasises that this set of EU labour migration Directives are the result of a
sector-by-sector approach. The EU failed to adopt an overall and common EU labour migration
policy and corresponding legal instruments. Even with regard to entitlement to equal treatment in
terms of employment and social security rights, these EU instruments lack a common approach
and give the Member States room to provide for exceptions. In addition, these Directives do not
contain any provisions regarding the aggregation of periods of insurance, employment or resi-
dence. As a result, they offer additional protection for the social security rights of migrant persons,
but they need to be complemented by other instruments such as multilateral or bilateral agree-
ments with third countries, or even human rights instruments.
* This is an updatedversion of an article published earlier in Verschueren (2016).
Corresponding author:
Herwig Verschueren, Professor of International and European Labour and Social Security law, University of Antwerp,
Stadscampus, Venusstraat 23 S.V.146, 2000 Antwerpen, Belgium.
E-mail: herwig.verschueren@uantwerp.be
European Journal of Social Security
2018, Vol. 20(2) 100–115
ªThe Author(s) 2018
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DOI: 10.1177/1388262718771792
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Keywords
Labour migration, European Union legal instruments, employment and social security rights of
third-country migrants
Introduction
Along with the legal instruments discussed in the other contributions to this special issue, employ-
ment and social security rights of third-country nationals are also guaranteed by a number of EU
Directives that are specifically meant to promote and regulate labour migration from third coun-
tries to the EU. Some were agreed with a view to making the EU mor e attractive for labour
migration from outside the EU. Others were meant to (partially) harmonise rights and/or proce-
dures in order to create a level playing field between the Member States. This contribution
examines the provisions in these legal instruments relating to employment and social rights of
the migrant workers who are covered by them.
1
Since the coming into force of the Amsterdam Treaty in 1999, the EU has acquired certain
competences to legislate in the field of migration policy, albeit shared with the Member States. The
ambitions of the EU in this respect were laid down in the Tampere Programme of 1999 which
acknowledged the need for approximation of national legislation in the field of labour migration to
the EU and its Member States.
2
This was done in the context of the economic and demographic
developmentsin which labourmigration was seen as a solutionto solving economic(labour shortages,
the global competition of talents) and demographic problems (aging of population). The European
Commission suggested developing a common European policy for the controlled admission of eco-
nomic migrants,including the gradualintroduction of equal treatmentwith the host States’nationals.
3
Soon afterwards, the Commission proposed a ‘Labour Migration Directive’ to regulate labour
migration from outside the EU. The objective was to harmonise admission criteria and national
labour migration schemes.
4
Nevertheless, this far-reaching proposal was rejected by the Member
States and eventually withdrawn by the Commission. It was clear that a political consensus on the
harmonisation or streamlining of labour migration legislation at EU level had not yet been reached.
Indeed, Member States appeared to be very reluctant to abandon control over the admissions
criteria that were to be used for admitting third-country nationals to their labour market, as well
as over the number of these labour migrants.
1. However,EU Directives regulating immigration for other purposes than labour will not be analysed in this contribution,
even though some of these instruments also allow the persons concerned to take up employment in the EU and contain
provisions regarding their employment and social rights. See Council Directive 2003/86/EC of 22 September 2003 on
the right to family reunification (OJ 2003 L 251:12), Art. 14; Council Directive 2003/109/EC of 25 November 2003
concerning the status of third-country nationals who are long-term residents (OJ 2004 L16:44), art. 11; and Directive
2013/33/EU of the European Parliament and of the Council of 26 June 2013 laying down standards for the reception of
applicants for international protection (OJ 2013 L 180:96).
Furthermore, Regulation (EU) No 1231/2010 of the European Parliament and of the Council of 24 November 2010
extending Regulation (EC) No 883/2004 and Regulation (EC) No 987/2009 to nationals of third countries who are not
already covered by these Regulations solely on the ground of their nationality (OJ 2010 L 344:1) will not be commented
upon in this contribution as it is the subject of Cornelissen’s contribution to this special issue. See Cornelissen (2018).
2. TampereEuropean Council (1999) 15-16 October, Presidency Conclusions, SN 200/99.
3. European Commission (2000).
4. European Commission (2001).
Verschueren 101
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