Illegal Employment of Third Country Nationals in Belgium and in the EU (EMN)
This EMN study analyses the measures in place at (Member) State level to fight against the illegal employment of (regularly and irregularly staying) third-country nationals, possible obstacles in this field and strategies and good practices to overcome them.
Illegal employment of third-country nationals (TCNs) (i.e. contravening immigration and/or labour law) is a source of concern in the EU, both for economic, migration-related and social reasons.
At macro-economic level, illegal employment decreases tax revenues and may also increase welfare expenditure, posing an unnecessary burden to the social security system of the (Member) State. At micro-economic level, it distorts competition among economic actors and creates social dumping and conditions where exploitation can thrive. Fighting illegal employment is therefore an economic policy objective. Counteracting illegal employment of illegally staying TCNs is also a migration policy objective, specifically in the context of reducing irregular migration. Last but not least, fighting exploitation of TCNs in illegal employment is also a social policy and fundamental rights objective, as it is common that the rights of illegally employed workers are violated.
This EMN study focuses on the illegal employment of regularly and irregularly staying TCNs in Belgium and in the EU. It analyses national policies and practices in place at (Member) State level to prevent, identify and sanction the illegal employment of third-country nationals, as well outcomes for third-country nationals.
This national contribution was drafted by M. Philippe Vanden Broeck - social inspector/director at the Labour Inspectorate of the Federal Public Service Employment, Labour and Social Dialogue – in cooperation with the Belgian Contact Point of the EMN.
Among other conclusions, the Belgian study highlights that:
- The fight against social fraud and illegal employment (including of third-country nationals) is high on the political agenda in Belgium, as it can have many negative consequences.
- Different information and prevention measures on social fraud and illegal employment targeting employers and/or employees are implemented by public authorities in Belgium, although they do not always specifically focus on the illegal employment of third-country nationals. NGOs and other organisations – as well as trade unions – also provide information on illegal employment.
- A solid structural framework has been set up for the identification and sanctioning of social fraud and illegal employment. The Social Criminal Code – introduced in 2010 - centralized the fragmented legislation of social criminal law.
- Different (federal and regional) public authorities are involved in the identification of illegal employment. Overall, the activities of the inspection services are characterized by a high level of cooperation (e.g. sharing of findings, joint inspections, shared action plans for controls).
- Labour inspection services mostly find infringements (including the illegal employment of third-country nationals) by doing inspections in the field. Inspectors may carry out controls in several places and use different tools and methods (e.g. common checklists or standard interrogation forms).
- The Social Criminal Code provides for four different levels of violations of employment and social security provisions, each with a corresponding sanction. Employers found to be illegally employing third-country nationals face a sanction level 3 or 4. The prosecution policy of the public prosecutors is streamlined and targets the most serious forms of fraud and exploitation of employees, among which third-country nationals.
- Outcomes for third-country nationals (regularly or irregularly staying in Belgium) found to be working illegally can be diverse, in terms of their residence status, return decisions, entry ban, detention, possibility for regularisation of the work situation or fines.
- Employers (including direct contractors and intermediate subcontractors) may be requested to pay outstanding remuneration to illegally employed third-country nationals. They also have to pay the taxes and social security contributions to the State.
- Third-country nationals can lodge a complaint against their employers. They can defend their rights before a court (civil and penal), and they are entitled to legal assistance. Certain third parties may act in legal proceedings on behalf of irregularly staying third-country nationals. However, certain challenges can be noted, such as the fact that third-country nationals are often reluctant to lodge a complaint or cooperate with the Police or the Inspection services.
The EU Synthesis report is based on the contributions from 23 EMN National Contact Points. The EMN Inform summarizes the findings from the study.
Among other key points, the synthesis report highlights:
- Statistics provided by a limited number of Member States show that the number of identified illegally employed TCNs and the number of convictions and sanctions for employers differ significantly across Member States.
- The illegal employment of TCNs is most prevalent in the following sectors : Agriculture, construction, manufacturing, hospitality and food services. The types of businesses considered at high risk are in the labour-intensive and low-skilled sectors.
- In the majority of Member States, labour inspectorates are responsible for identifying illegal employment. Inspections are carried out based on the results of risk assessments, other methods of inspection planning, or signals from the public or TCNs. The effective cooperation and exchange of information between different authorities involved in identification was identified as a success factor. An effective complaints mechanism as a protective measure also contributes to successful identification.
- The most common sanction for employers – applied by all Member States participating in this Study - is fines. Other sanctions include : imprisonment, confiscation of financial gains and equipment, temporary/definitive closure, etc. Not only the strictness of legislation and levels of sanctions but also the actual application of sanctions were found to be key factors in deterring employers from illegally employing TCNs.
- Following identification of an illegally employed TCN, there are several possible outcomes, including return, possibly preceded by detention, fines, identification as victims of trafficking in human beings and regularisation of residence/work status. Regularisation of TCNs (residence and/or work permit) found to be working illegally is only possible in a few Member States, usually on humanitarian grounds.
- In 20 Member States, TCNs who are found to be illegally employed can make claims against their employer for compensation of unpaid wages. In most Member States, third parties with legitimate interest (such as trade unions, organisations of migrant workers), may act on behalf or in support of TCNs.
- However, some Member States reported that in practice TCNs seldom file a complaint about their working conditions. TCNs can be reluctant to cooperate with police forces or inspectorates, because of the possible outcomes (e.g. a return decision), and due to challenges participating in proceedings (including with legal assistance) and proving their employment.
The national reports of the other EMN National Contact Points can be found here.