Background information

This EMN Inform summarises the main findings of the EMN study on the Illegal Employment of Third-Country Nationals in the EU. The Study was based on contributions from 23 EMN National Contact Points (the national reports are available here).

The 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.

Inform: some findings

• 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.