Maltese implementation and enforcement of EU directive 2009/52

Abstract

The illegal employment of third-country nationals is a prevalent issue throughout the European Union; having affected migration, employment as well as the economy. This study examines EU secondary legislation which was adopted specifically to address the problems caused by undeclared work. Directive 2009/52/EC (also termed “the Employers Sanctions Directive”) establishes a guideline for Member States to follow in order to deter employers from illegally recruiting TCNs. At the same time, the legislation aims to protect TCNs and ensure that they are returned to their home countries having received remuneration for the work performed.

Whilst looking at illegal employment through the EU-wide perspective, the study also focuses on the national context in order to discuss how Malta has transposed the Directive into national law. The process of transposition consists of both implementation and enforcement measures. The former refers to analysis of national legislation in relation to the original provisions of the Directive, so as to compare and contrast. On the other hand, the latter goes into the initiatives and policies established by various entities such as governments, local authorities, NGOs, EU institutions as well as organisations.

Other areas of discussion are the types of sanctions imposed, thereby highlighting the differences within the justice systems of various Member States. Moreover, the study also specifies the types of cases which are considered aggravations and thus warrant a higher degree of sanctioning. Also of relevance is migrants’ rights. The Directive has been criticised for lacking in direction, as well as not safeguarding the best interests of TCNs. The study looks further into the issues surrounding the Directive and as a result proposes for more specialisation and initiatives designed to respect the fundamental rights of migrants.