A hole in the wall of fortress Europe: The trans‐European posting of third‐country labour migrants
| Published date | 01 April 2022 |
| Author | Dries Lens,Ninke Mussche,Ive Marx |
| Date | 01 April 2022 |
| DOI | http://doi.org/10.1111/imig.12867 |
160
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International Migration. 2022;60:160–176.
wileyonlinelibrary.com/journal/imig
INTRODUCTION
One of the fundamental features of labour migrat ion policy in Europe is the divide bet ween free labour mobility by
EU citizens on the one hand and nation ally controlled labour migration by third- country nationals1. (TCNs) on the
other (Paul , 2013). The princi ples of free m ovement of persons and free moveme nt of services are key pillars of
the EU edific e. Thes e princ iples en able EU workers to resid e and work in any Mem ber Sta te of thei r choos ing and/
or to be posted to any other Member Sta te for delivering a service job. The regul ation of these principles happe ns
at the EU level. The reg ulation of labour migration from outside the EU, in contrast, is largely lef t to the cont rol
of EU Member States (St rumia, 2016), who sovereignly deci de on the conditions as well as on th e number of TCN
labour migrant s they admit to their labo ur market (Verschueren, 2 016).
Received: 24 Septe mber 2020
|
Revised: 2 Februa ry 2021
|
Accepted: 19 April 20 21
DOI: 10.1111/imig.12867
ORIGINAL ARTICLE
A hole in the wall of fortress Europe: The trans-
European posting of third- country labour migrants
Dries Lens| Ninke Mussche | Ive Marx
© 2021 The Author s. Internationa l Migration © 2021 IOM
Herman Dele eck Centre for Soci al Policy,
Universit y of Antwerp, Antwe rp, Belgium
Correspondence
Dries Lens, St- Jacobs traat 2, 2000,
Antwerp, Be lgium.
Email: Dries.Lens@uantwerpen.be
Funding information
This researc h was financially su pported by
funding from F ederal Science Pol icy (Grant
BR/165/A4/IMMILAB) as p art of the BRAI N
Research Program.
Abstract
This article documents and discusses the import ance of the
intra- EU posting of third- country national (TCN) labour mi-
grants. TCN labour migr ants have tra ditionally been fixed
to one Member State where they reside and wor k based
on a work and residence pe rmit. Case- law of the European
Court of Ju stice allowed TCNs to be po sted across the EU
based on the free movement of se rvices. We reveal that
an increasin g number of TCNs from a large va riety of citi-
zenships are in deed mobile across th e EU as posted work-
ers. We additionally show that most of these workers are
low- and medium- skilled and would – in a traditional la-
bour migration sett ing – have difficulty obtaining a work
and residence permit from Member States that privilege
highly s killed labour migration. We also demonstrate that
the posting of TCNs has the potential to grow into a mobil-
ity chann el on equal footin g with “tradition al” TCN labour
migration.
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161
A HOLE IN THE WALL OF FO RTRESS EUROPE: THE T RANS-
EUROPEAN PO STING OF THIRD- COUNTRY LABOUR M IGRANTS
This article documents and analyses a new and understudied phenomenon which is situated at the intersec-
tion – or rathe r overlap – of these two distinct regimes, that is the intra- EU posting of TCN labour mi grants. The
data presen ted here reveal incre asing numbers of TCNs w ho have temporary work and residence p ermits in one
Member Sta te, being typic ally “fixed” to the labour ma rket of that Membe r State, and wh o are at the s ame time
being freely posted by their EU employers across the EU. This has far- reaching implications for the way we think
about migrati on to and within Europe, as well as t he way we think about migrati on policies.
It is perh aps usefu l at this point to be clear on what po sting exa ctly ent ails. Gene rally spe aking, it refers to the si tua-
tion wh ere an employ er sends his/h er employe e to work in anoth er EU Member St ate for a limite d period of tim e in the
framework of the free movement of services.2. Poste d workers’ leg al situati on is “split”: eve n though the po sted worker
is perfor ming work in the ho st country, (s)he doe s not shift her/his re sidence there and stays connected w ith his/her
home country as the employment agreement is concluded there, and (s)he remains subject to the social security system
of the home co untry. At the same t ime, posted workers become mobile to wor k in another Membe r State by execut-
ing a ser vice contract for their employer and are subject to t he labour legislati on of the receiving country. The publi c
imagination mo stly focuses on post ing as a phenomenon be tween EU Member State s, with posted worker s being EU
citizens. In t his article, we demo nstrate that the po sting of workers, alre ady a contentious and much- debated issue in
the EU today, is not only increasing but developing new forms of mobilit y that now includes TCN labour migrants. This
is particular as TCNs are legally “fixed” by a work and residence permit in the country that grante d the permits. The fact
that TCNs can also be mobile as posted workers across the EU Member States was enabled by the European Court of
Justice (ECJ) in the Vander Elst ca se of 1994 (Mussche & Lens, 2019). The Court decided that TCNs who have a val id
work and residence per mit in one Member State are free to be posted in any other Memb er State across the EU.
This is one of the first studies d edicated to the postin g of TCNs. It is to our know ledge the first to quanti-
tatively assess this ph enomenon utilizi ng a unique data set for Belgium that includes a ri ch set of var iables. We
reveal that an increasing number of TCNs from a la rge variety of citizenships i s mobile acros s the EU as posted
workers, base d on the EU free move ment of services. We additionally show t hat most of these wo rkers are low-
and mediu m- s killed and wo uld – in a traditional l abour migration setting – have difficult y obtaining a work and
residence permi t from Member States that privile ge highly skilled labour migrati on, to the exclusion of low- skilled
workers (Holtslag et al., 2013; Menz & Cavides, 2010). We also demonstrate t hat the p osting of TCNs has th e
potential to grow i nto a mobi lity channel on equa l footing with “tradi tional” TCN labour migra tion, an ongoing
process which cl early challenges sta ndard conceptions of migrat ion.
Our fin dings have far- reaching implicatio ns in a nu mber of ways. Institutional developments at the EU level
have created a parallel entry channel in an otherwise relatively locked gate to the EU for less privileged workers.
TCN labour migration, tradit ionally fully under the migration sovereignt y of the individua l Member States, is partly
extracte d from that s overeignty and l iberalized based on the free movement of ser vices. A conseq uence of this
is that TCNs bein g posted from other Me mber States represe nt ever- ex panding circles of pos ting mobility in an d
towards t he EU. While some migh t welcome t hese changing mobility patterns, cl aiming that there is a need to
recruit and/or post- migrants in order to fill labour and skil l shortages, others would argue that in many cases the se
claims refle ct employers’ prefe rence for recruitin g cheap and explo itable migrant wor kers over improving wa ges
and employ ment conditions (Ru hs & Anderson, 2010). Due to the intersection of migration and e mployment re-
gimes, posted TCNs may ind eed find themselves in a parti cularly vulnerable posi tion compared with both migrant
workers and pos ted workers who are EU citizens.
CONNECTING TCN LABOUR MIGRATION AND LABOUR MOBILITY
WITHIN THE EU
What is the theoret ical importance of the po sting of TCN labour migrants? Here we ne ed to connect with several
literature strands.
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