As the EU's borders continue to expand, it is important that all employers are aware of their growing obligations as points of control for illegal immigration, writes Andrew Laidlaw


The weather is definitely ripe for strawberries and cream and the odd glass of bubbly. Most of us, however, rarely think about what it takes for those strawberries and grapes to make it from the farm to our fridges. Often it takes a high-profile tragedy, such as that of the cockle-pickers in Morecambe Bay in 2004, to remind us of the role that immigrant workers play in many economic sectors, including tourism and agriculture.



Quite often, there are simply not enough 'Europeans' willing to do low-paid manual labour. Employment costs or regulations in some countries make it unfeasible to engage casual or seasonal workers easily and affordably. Employers often resort to clandestine employment - sometimes to employing immigrant workers who are willing to accept low pay and poor conditions.



The role immigrant workers play in Europe's economies is significant. However, the topic of immigration, and illegal immigration in particular, is always a political hot potato. But consensus, both in the UK and in the EU, does appear to be building that immigration in particular should be better managed and that a co-ordinated response to managing and securing borders is the way forward.



That said, all is not equal among member states because the UK is able to pick and choose the immigration measures that will apply to it. As a general rule, the UK opts in to those measures aimed at fighting illegal immigration - such as those that deal with expulsion and the definition of facilitating unauthorised entry - but not those that grant standardised rights or status to third-country nationals around the EU.



As the EU's borders expand to the east and increasing numbers attempt to enter through its porous southern limits, it is becoming increasingly clear that the creation of new border agencies and capacity-building measures on their own will not suffice. Over the coming months and years, new measures will aim to introduce rules for seasonal workers and highly skilled workers, with a view to creating an eventual US-style 'green card' (blue, in fact) system. This is a development that might not sit easily with the new UK points system.



Because many of those illegal immigrants come to Europe to work, it seems logical that employers should be another point of control, particularly because temporary visas expire. As such, the European Commission recently published proposals for legislation to ensure that all member states adopt a consistent approach to the employment of non-EU citizens who are present in the EU illegally. That is to say, legislation to ensure all states adopt a consistent approach towards sanctioning those who employ such workers. That potentially includes you if your cleaner, au pair or gardener falls into that category.



Should the legislation be passed in its current form, employers would be obliged to carry out checks on the eligibility of non-EU citizens to work, and do so on an ongoing basis. If found to be employing illegally present workers, employers could be liable to sanctions, including those of a criminal nature.



Changes to existing UK rules may be limited, although new liabilities could be imposed, such as for the costs of returning the worker to his or her country of origin, as well as paying any outstanding wages, taxes and social security contributions. It would also place new responsibilities on contractors for the liabilities of their sub-contractors.



This proposal is part of a wider package of measures to manage immigration and tackle illegal immigration through partnership agreements with third countries and systems of 'circular migration', but it remains to be seen how effective the imposition of criminal sanctions will be. The law is only as effective as the authorities enforcing it, which is probably why the proposal would also require member states to inspect, each year, 10% of all companies on their territory for such illegal employment.



As well as facilitating certain types of migration, facilitating legal employment is the flip side to this conundrum and something that has not escaped Europe's decision-makers. With a view to improving competitiveness, a recent Green Paper asked interested parties how more flexibility could be introduced into Europe's labour markets.



Should the focus now be on employment security (the availability of work) rather than job security (being protected in one's existing job)? Should there be a minimum floor of rights for all workers (not just employees)? Should transition between different types of work be made easier? It is likely that any resultant increase in flexibility will be seen in some continental labour markets, rather than that of the UK.



We have hopefully been through the worst in terms of discussing the merits or otherwise of EU enlargement and the influx of workers from those countries. The debate about immigration levels from outside the EU on the other hand is not something that will be resolved in the short term. It will be of ongoing importance that practitioners are aware of the new obligations on employers emanating from both Brussels and Westminster.



Andrew Laidlaw is the internal market policy executive at the Law Society's Brussels office. Email: brussels@lawsociety.org.uk.