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, based on the national contributions from the EMN National Contact Points, will soon be available on this website.