Currently, the laws of the Member States of the European Union (EU) govern the admission of workers from third (non-EU) countries, including the admission of unskilled workers for short periods of time (guest workers), with a few exceptions.. This, however, may change in the near future because the European Commission has a adopted a proposal for a Directive on Seasonal Labor. The following chapters of this report describe EU immigration policy, the legislative powers of the EU in the area of immigration, the factual situation in the Member States, some aspects of EU law that the immigration laws of the Member States must currently observe, and the Proposed Directive.
II. Current Situation
A. European Immigration Policy
In the area of immigration, the European Union’s general objective, as envisioned in the Action Plan Implementing the Stockholm Programme between 2010–2014, is to establish a comprehensive immigration policy designed to support legal migration, fulfill labor needs in the markets of the twenty-seven EU Member States, combat illegal immigration through readmission agreements and return policies, and at the same time effectively manage its external borders. Central to the EU’s policy on legal migration is the integration of third-country nationals who reside legally in the EU and hold long-term residence permits. The EU is mandated by the 2009 Treaty on the Functioning of the European Union to treat such third-country nationals “fairly.” Subsequent secondary EU legislation gave effect to the fair treatment requirement by granting legal, third-country nationals rights and obligations comparable to those accorded to EU citizens.
The EU’s first priority in the field of immigration is to attract highly-skilled workers to ensure that the EU remains competitive. Directive 2009/50/EC, the so-called Blue Card Directive, is designed to attract highly-qualified, third-country nationals. It is based on a work contract and does not create a right of admission, in an effort to avoid “brain drain” in the countries of origin.
In its 2011 Communication on the Global Approach to Migration and Mobility the European Commission indicated that, despite the economic crisis, many EU Members experience a shortage of labor in the fields of health, science, and technology that cannot be filled with domestic workers. An ability to attract migrants that corresponds to EU labor shortage needs is deemed a major challenge, the resolution of which could solve the shortage experienced in the labor market and also potentially provide an answer to the labor and economic challenges associated with the EU’s aging population. In 2011, the Commission acknowledged that more research is required to anticipate labor and skills shortages and to identify the role that migration can play in addressing these issues.
The European Commission’s next move was to propose a directive on admission and residence for seasonal workers. Many EU Members have already been engaged in recruitment of temporary workers to fill vacancies in the agricultural and hospitality sectors, or to work as caregivers.
B. Institutional Framework: Division of Competence and Applicability of Rules
At the EU level, immigration is a shared competence between the EU and its twenty-seven Member States. Based on article 79 of the Treaty on the Functioning of the EU (TFEU), the EU has competence to establish a common immigration policy with the objectives of controlling migration flows, treating fairly third-country nationals (migrants) residing legally in Member States, and preventing and improving measures to fight illegal immigration. Consequently, the EU has the power to legislate in the following areas:
- entry and residence of long-term visas, residence permits, and family reunification;
- rights of third-country nationals legally residing in a Member State; and
- illegal immigration, unauthorized residence, and removal and repatriation of illegal migrants.
EU Members retain the right to determine the number of admissions of third-country nationals who will enter their territory for the purpose of employment, either as self-employed or contract workers. EU Members are also responsible for establishing and implementing integration policies for third-country nationals who reside legally in their territory.
The territorial scope of the EU’s immigration rules extends to twenty-four of the twenty-seven EU Member States. Denmark does not apply the rules on immigration, visas, and asylum. The United Kingdom and Ireland have the right to opt out of specific legislation on a case-by-case basis because of reservations made in Protocol No. 22 and Protocol No. 21, respectively, to abstain from certain issues within the areas of freedom, security, and justice.
C. Factual Situation
According to some estimates, there are approximately 100,000 seasonal workers in the EU annually. This number also includes irregular migrants. Statistics provided by the European Commission indicate that the volume of seasonal workers varies considerably across the EU: in 2008, Hungary admitted 919 seasonal workers, France 3,860, Sweden 7,552, and Spain close to 24,838. In many Member States, seasonal workers fill low-skilled jobs in sectors such as agriculture (60% of the seasonal labor force in Italy, 20% in Greece) and tourism (in Spain, 13% of all work permits issued in 2003 were for the hotel and catering sector). Certain regions of Austria rely on seasonal workers, hence the quota of 8,000 for the 2008/2009 winter season. The areas that have been identified as in need of seasonal workers are agriculture, horticulture, and tourism. Many seasonal workers perform the work without a permit and many are subject to exploitation.
D. Currently Applicable EU Law1. Path to Permanent Residence/Citizenship
EU Members are required to grant resident status to third-country nationals who have legally and continuously resided for a period of five years in an EU Member State. In addition, such third country nationals must provide evidence that they possess sufficient financial resources so that they will not need to rely on the social assistance system, and that they have health insurance. These requirements are established by Directive 2003/109/EC on the Status of Third-Country Nationals Who are Long-Term Residents. Seasonal workers are specifically excluded from the scope of this Directive.2. Family Reunification
Family reunification is governed by Council Directive 2003/86/EC on the Right to Family Reunification (Family Reunification Directive). This Directive applies to “sponsors”—meaning third-country nationals legally residing in a Member State—who hold a residence permit and who have a reasonable likelihood of obtaining the right of permanent residence. Seasonal workers fall outside the scope of this Directive.
The following family members of the sponsor, who are also third-country nationals, are eligible for family reunification:
- the sponsor’s spouse
- minor children of the sponsor and his/her spouse, including adopted children
- minor children of a sponsor who has custody of such children
Minor children must be below the
age of majority as determined by national legislation and be unmarried to claim eligibility.
Moreover, the Family Unification Directive gives flexibility to the Member States to grant entry and residence to
- first-degree relatives in the direct ascending line of the sponsor or his/her spouse, provided that such relatives lack sufficient financial resources in the country of origin;
- the adult unmarried children of the sponsor or his/her spouse when such children are unable to provide for themselves due to their health;
- an unmarried partner with whom the sponsor has had a long-term relationship, provided that the partner is a third-country national, or a partner with whom the sponsor is bound by a registered partnership;
- unmarried minor children, including adopted children; and
- adult unmarried children who cannot provide for themselves.
The Family Unification Directive requires EU Members to prohibit reunification of another spouse in the cases of polygamous marriage and where the sponsor already has a spouse living with him/her.
EU Member States may also require that the sponsor and his/her spouse be of a minimum age before the spouse joins the sponsor. This is required in order to avoid the forced marriages that occur in some third countries.
Applications for family reunification must be submitted with the necessary documentation to the competent authorities of the EU Member concerned, by the sponsor or his/her family members. EU Member States have the right to reject an application for entry and residence of a family member based on grounds of public policy, public security, or public health.
III. Proposed Directive
In 2010, the European Commission adopted the Proposal for a Directive on the Conditions of Entry and Residence of Third-Country Nationals for the Purposes of Seasonal Employment.
At the EU level, the term “third-country nationals” denotes those who are not citizens of the EU, within the meaning of article 20(1) of the TFEU. Under the Proposed Directive “seasonal worker” would be defined as a third-country national whose legal domicile is in a third country outside the EU, but who resides temporarily in an EU Member State in order to be employed “in a sector of activity dependent on the passing of the seasons. as a seasonal worker under one or more fixed-term work contracts.” Such contracts would be agreed upon directly by the third-country national and the employer who is established in a Member State. “Activity dependent on the passing of the seasons” would be further defined as an activity linked to certain times of the year either by an event or a pattern during which the labor requirements far exceeded “those necessary for usually ongoing operations.”
The Proposed Directive would extend to third-country nationals who reside outside the territory of the European Union and apply to be admitted to the territory of an EU Member to perform work as seasonal workers. It would allow EU Members to apply more favorable conditions through bilateral agreements or multinational agreements with other EU Members or third countries.
A. Recruitment and Sponsorship
The Proposed Directive would allow some flexibility by the EU Members when transposing the directive into national law to determine whether the employer or the third-country national must file the application. Third-country nationals could be admitted to a Member State if they presented
- a valid work contract or a binding job offer to work as a seasonal worker addressing working conditions, including the rate of pay and weekly or monthly working hours;
- a travel document issued pursuant to national law and valid at least for the same duration as the residence permit;
- proof of, or of having applied for, medical insurance; and
- proof of having adequate accommodations (if the seasonal worker must pay rent, it must not be disproportionate to his earnings).
In addition to the above criteria, the proposal would require EU Members to determine that seasonal workers had enough resources to ensure that they did not become dependent on the social assistance system of the Member State concerned. Moreover, EU Members would have the right to deny admission to anyone deemed a threat to their public security or public health.
Seasonal workers admitted for a period longer than three months would be given a permit, which would be required to indicate “seasonal worker” under the heading “type of permit.” The permit would be issued by the national competent authorities and this would be the only document issued to a seasonal worker. They would be permitted to stay for up to six months in a calendar year and then required to return to their country of origin.
C. Facilitation of Reentry
EU Members would have the option of issuing either three seasonal worker permits for three subsequent seasons based on a single administrative act or providing a facilitated procedure for seasonal workers who had already been admitted to that EU Member State and applied in the following year.
D. Reasons to Refuse Admission
Pursuant to the Proposed Directive, EU Members would have the option of refusing admission if
- the admission criteria of article 5 (summarized above) were no longer being met and the applicant supplied fraudulent documents;
- an EU national or third-country national lawfully residing in the Member State concerned could do the job;
- the employer was penalized for hiring illegal workers or for undeclared work, pursuant to national law; or
- the number of applicants is too large for the Member concerned.
The Proposed Directive would not require a visa for stays longer than three months. The language of article 10 indicates that seasonal workers would be given only one document—that of a seasonal worker permit. For periods of stay of less than three months, EU Members would be required to issue a visa allowing the seasonal worker to perform the specific activity.
Visa requirements for short stays of less than three months and longer stays for more than three months are harmonized throughout the EU and apply to all third-country nationals who wish to enter the EU pursuant to Council Regulation (EC) No. 539/2001. This Regulation harmonizes the visa conditions for third-country nationals who wish to enter the EU. As its title indicates, it contains a list of countries whose nationals must possess a visa when entering the EU and a list of countries whose nationals are exempt from the visa requirement.
F. Rights Accorded to Seasonal Workers
Seasonal workers would have the right to enter and stay, including free access to the entire territory in the EU Member State that issued the permit. They would be entitled to the same working conditions, including pay, dismissal protections, and health and safety requirements that apply to workers in general, as provided in national law or in a collective agreement regarding seasonal workers. Seasonal workers would also be accorded equal treatment consistent with the nationals of the recipient state and be granted the rights of
- freedom of association and membership in organizations representing workers,
- access to social security,
- access to a statutory pension based on previous employment on the same terms and conditions as nationals of the host state, and
- access to goods and services.
Prepared by Theresa Papademetriou
Senior Foreign Law Specialist
 Communication from the European Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, Delivering an Area of Freedom, Security and Justice for Europe’s Citizens: Action Plan Implementing the Stockholm Programme, COM (2010) 171 final (Apr. 20, 2010), http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2010:0171:FIN:EN:PDF.
 Consolidated Version of the Treaty on the Functioning of the European Union (TFEU) art. 79, 2012 Official Journal of the European Union [O.J.] (C 326) 47, http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri =OJ:C:2012:326:0047:0200:EN:PDF.
 See Council Directive 2003/109/EC of 25 November 2003 Concerning the Status of Third-country Nationals Who Are Long-term Residents, 2004 O.J. (L 16) 44, http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L: 2004:016:0044:0053:EN:PDF. The need for such a policy on integration was initially recognized in 1999 by the European Council at Tampere, Finland. Tampere European Council, 15 and 16 of October 1999, Presidency Conclusions, paras. 18–21, European Parliament, http://www.europarl.europa.eu/summits/tam_en.htm. It was reaffirmed by the Stockholm Program, adopted by the European Council in December 2009. The Stockholm Programme: An Open and Secure Europe Serving and Protecting the Citizens, Annex, Council of the European Union, Presidency, European Council, (Dec. 2, 2009), http://register.consilium.europa.eu/pdf/en/09/st17/st17024. en09.pdf.
 Communication from the European Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, Communication on Migration, at 13, COM (2011) 248 final (May 4, 2011), http://ec.europa.eu/home-affairs/news/intro/docs/1_EN_ACT_part1_v11.pdf.
 Council Directive 2009/50/EC, on the Conditions of Entry and Residence of Third-Country Nationals for the Purposes of Highly Qualified Employment, 2009 O.J. (L 155) 17, http://eur-lex.europa.eu/LexUriServ/Lex UriServ.do?uri=OJ:l:2009:155:0017:0029:en:PDF.
 Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, The Global Approach to Migration and Mobility, at 2, COM (2011) 743 final (Nov. 18, 2011), http://ec.europa.eu/home-affairs/news/intro/docs/1_EN_ACT_part1_v9.pdf.
 Sheena McLoughlin et al., Temporary and Circular Migration: Opportunities and Challenges (European Policy Center, Working Paper No. 35, 2011), http://www.epc.eu/documents/uploads/pub_1237_temporary_and_ circular_migration_wp35.pdf.
 Communication on Migration, supra note 4, at 12.
 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 final (July 13, 2010), http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2010:0379:FIN:EN:PDF.
 For country reports on circular migration, see European Migration Network, Temporary and Circular Migration: Empirical Evidence, Current Policy Practice and Future Options in EU Member States 9 (Oct. 2011), http://emn.ie/files/p_201111110314492011_EMN_Synthesis_Report_Temporary_Circular_Migration_ FINAL.pdf.
 TFEU, supra note 2, art. 79.
 Article 79, as revised by the Lisbon Treaty, is being interpreted as bestowing more authority on the EU than it previously held, to legislate for the purpose of establishing “a common immigration policy.” 2 EU Immigration Law: EU Immigration and Asylum Law (Text and Commentary) 13 (Peers et al. eds., 2d rev. ed. 2012).
 TFEU, supra note 2, art. 79, para. 2.
 Id., para. 5.
 Communication from the European Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, European Agenda for the Integration of Third-country Nationals, COM (2011) 455 final (July 20, 2011), http://eur-lex.europa.eu/LexUriServ/LexUriServ. do?uri=COM:2011:0455:FIN:EN:PDF.
 Protocol No. 22 on the Position of Denmark arts. 1 & 2, annexed to the Consolidated Versions of the Treaty on European Union (TEU) and the TFEU, 2012 O.J. (C326) 299, http://eur-lex.europa.eu/LexUriServ/LexUriServ. do?uri=OJ:C:2012:326:FULL:EN:PDF.
 Protocol No. 21 on the Position of the UK and Ireland in Respect of the Area of Freedom, Security and Justice arts. 1 & 2, id. at 295.
 Press Release, European Commission, Proposal for a Directive Establishing Common Entry and Residence Conditions for Third-Country Seasonal Workers (July 13, 2010), http://europa.eu/rapid/press-release_MEMO-10-323_en.htm.
 Commission Staff Working Document, Summary of the Impact Assessment Accompanying the Proposal for a Directive of the European Parliament and of the Council on the Conditions for Entry and Residence of Third-country Nationals for the Purpose of Seasonal Employment, at 2, SEC (2010) 888 (July 13, 2010), http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=SEC:2010:0888:FIN:EN:PDF.
 Work, European Commission Home Affairs, http://ec.europa.eu/dgs/home-affairs/what-we-do/policies/immigration/work/index_en.htm (last updated Aug. 31, 2012).
 Council Directive 2003/109/EC of 25 November 2003 Concerning the Status of Third- Country Nationals Who are Long-Term Residents, 2003 O.J. (L16) 47, http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2004:016:0044:0053:EN:PDF.
 Id. art. 3, para. 2(e).
 Council Directive 2003/86/EC of 22 September 2003 on the Right to Family Reunification, 2003 O.J. (L 251) 12, http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2003:251:0012:0018:EN:PDF.
 Id. art. 4, para. 1(a)–(d).
 Id., para. 2(a), (b).
 Id., para. 3.
 Id., para. 4.
 Id. art. 5.
 Id. art. 6, para. 1.
 Proposal for a Directive on the Conditions of Entry and Residence, supra note 9.
 TFEU, supra note 2, art. 20, para. 1.
 Proposal for a Directive on the Conditions of Entry and Residence art. 3(b), (c), supra note 9.
 Id. art. 2.
 Id. art. 4, para. 2.
 Id. art. 14.
 Id. art.7, para. 2(b).
 The format of the permit is established pursuant to Council Regulation (EC) No. 1030/2002 of 13 June 2002 Laying Down a Uniform Format for Residence Permits for Third-country Nationals, 2002 O.J. (L 157) 1, http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2002:157:0001:0007:EN:PDF.
 Id. art. 10.
 Id. art. 11.
 Id. art. 12, para. 1.
 Id. art. 6.
 Proposal for a Directive on the Conditions of Entry and Residence, supra note 9, at 10.
 Council Regulation (EC) No. 539/2001 of 15 March 2001 Listing the Third Countries Whose Nationals Must Be in Possession of Visas When Crossing the External Borders and Those Whose Nationals Are Exempt from That Requirement, 2001 O.J. (L 81) 1, http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2001: 081:0001:0007:EN:PDF. This Regulation has been amended by Regulation (EC) 851/2005, Regulation (EC) 1932/2006, and Regulation 1211/2010.
 Id. art. 15.
 Id. art. 16, para 1.
 Id., para. 2.
Last Updated: 09/16/2014