Illegal immigration – penalties for employers

SUMMARY OF:

Sanctions & measures against employers of illegally staying non-EU nationals – Directive 2009/52/EC

SUMMARY

WHAT DOES THIS DIRECTIVE DO?

In order to counteract illegal immigration, it requires EU countries to prohibit the employment of non-EU nationals staying in the EU illegally.

It sets out minimum EU-wide rules on the penalties and other measures that can be applied against employers found to have breached this ban.

This directive does not apply to all EU countries - Denmark, Ireland and the UK (1) have opted out.

KEY POINTS

Employers’ obligations

Employers have to:

• require non-EU nationals to produce a residence permit or another authorisation to stay before taking up employment
• keep copies of the permit or authorisation for the duration of the employment, in case of inspection by the national authorities
• notify the authorities within the period set by the EU country when they employ a non-EU national.

EU countries may also:

• use a simplified notification procedure if the employer is an individual who engages a non-EU national for private purposes
• decide not to require notification when the non-EU national has been granted long-term residence status.

Penalties

EU countries must ensure that employers who break these rules are subject to effective, proportionate and dissuasive penalties, including:

• fines based on each illegally employed non-EU national
• paying for these nationals to be returned to their country of origin.

EU countries must also:

• ensure that employers are liable for back payments, such as outstanding wages and social security contributions.
• put in place systems to allow illegally employed non-EU nationals to claim any outstanding wages from their employers.
• ensure employers are also – if appropriate – subject to other penalties, such as:
  • losing entitlement to some or all public benefits (including EU funding) for up to 5 years
  • having to repay any benefits received in the 12 months before the illegal employment was detected
  • being barred from participation in public contracts for up to 5 years
  • temporary or permanent closure of their business.

Criminal offences

An intentional infringement constitutes a criminal offence when the employer:

• persists in not complying
• employs a significant number of illegally staying non-EU nationals
• employs such people in particularly exploitative working conditions
• employs victims of human trafficking
• illegally employs minors.

Complaints and inspections

Illegally employed non-EU nationals must be able to lodge complaints against their employers, either directly or through third parties. EU countries are required to carry out inspections based on regular risk assessments, to check whether employers are employing such illegal immigrants.

Implementation

Two main findings of a 2014 report on the application of the directive were that:

• there are differences in the severity of the punishment in different EU countries
• there is room for improvement in all areas offering protection to irregular migrants.

FROM WHEN DOES THE DIRECTIVE APPLY?

It applies from 20 July 2009. EU countries had to incorporate it into national law by 20 July 2011.

BACKGROUND

Irregular migration – EU policy.

ACT

Directive 2009/52/EC of the European Parliament and of the Council of 18 June 2009 providing for minimum standards on sanctions and measures against employers of illegally staying third country nationals (OJ L 168, 30.6.2009, pp. 24–32)

Corrections to Directive 2009/52/EC have been incorporated in the basic text. This consolidated version is of documentary value only.

RELATED ACTS

Communication from the Commission to the European Parliament and the Council on the application of Directive 2009/52/EC of 18 June 2009 providing for minimum standards on sanctions and measures against employers of illegally staying third country nationals (COM(2014) 286 final of 22.5.2014)

last update 21.03.2016

(1) The United Kingdom withdraws from the European Union and becomes a third country (non-EU country) as of 1 February 2020.