Warning: Contains Traces of Gender-Discrimination

16.12.2016 , in ((Politics)) , ((No Comments))

The issue of whether EU (labor) migration law respects the principle of gender equality as it is supposed to is so far understudied. This attempt of exposing some gender-related flaws in the EU migration law shortly discusses the gender-neutrality of the EU Blue Card Directive and the Seasonal Workers Directive as two examples of EU migration law. And, it is used as evidence that the EU asylum and migration law does indeed contain traces of gender-discrimination.

The nccr – on the move blog has already featured posts, which dealt with several aspects of the EU law regulating the entry and stay of third country nationals: “The Reform of the EU Blue Card Directive – Good Things Take Time”, “The ‘Dublin IV’-Proposal: One Step Forward and Ten Steps Back …”, and “The EU-Turkey Deal on Refugees: ‘No Big Deal’?” They discussed subjects such as the conditions under which highly skilled workers who are nationals of countries that are not in the EU – “third countries”, which makes their citizens “third country nationals”, or “TCN” in jargon – can enter and stay in the EU, as well as the plans of the EU to reform its asylum system by amending the Dublin Regulation.

EU Law and Gender Equality

Gender equality has come a long way in the European Union. According to the European Commission, equality between women and men is one of the European Union’s founding principles. It goes back to 1957 when the principle of equal pay for equal work became part of the Treaty of Rome (now article 157 TFEU), a principle confirmed by the (then) European Court of Justice in its famous “Defrenne” case. This case law has since then been codified and its scope broadened in EU secondary legislation. With the coming into force of the Lisbon Treaty, gender equality is enshrined in Articles 2 and 3 of the Treaty on European Union (TEU), Article 8 of the Treaty on the Functioning of the European Union (TFEU), and Articles 21 and 23 of the Charter of Fundamental Rights of the European Union. Finally, in 2010, the Commission adopted the Women’s Charter, in which the Commission repeated its commitment to gender equality and to strengthening the gender perspective in all its policies. Thus, all EU institutions are obliged to integrate a gender perspective into all policies carried out at the European level. As a result of these developments, one could think that things seem to look up for gender equality in EU law.

Gender Equality in EU Labor Migration Law

On a more thorough examination, however, recent EU legislative instruments regulating the conditions for entry and stay of third country national workers show a different picture. Two of these instruments will be taken as an example: The Blue Card Directive and the Seasonal Workers Directive. Both of these instruments seem to be gender-neutral at first sight, but reveal a surprising degree of gender-discrimination at closer scrutiny.

The Blue Card Directive, regulating the entry and stay of highly qualified workers in the EU, was adopted in 2009 and has been implemented by the EU Member States until June 2011. Research has revealed that in some of the “old” EU Member States only a quarter of the Blue Cards issued to highly skilled migrant workers are obtained by women. A reason for the low number of permits issued to women may be found in the criteria for admission under the Blue Card Directive’s scheme. Under the current regime, the gross annual salary of the applicant must be at least 1.5 times the average gross annual salary in the potential host Member State. Considering that, despite all efforts, the gender wage cap continues to exist in most OECD countries, it will be harder for women to fulfill the Directive’s condition regarding the annual salary. Therefore, the Blue Card Directive, although formulated in a gender-neutral way, seems to be an instrument, which is rather designed for male migrants.

Whereas the applicability of the Seasonal Workers Directive does not depend on the wages earned by the third country national wishing to fall under its scope, its regime is nevertheless disadvantageous for women. The Directive aims at promoting circular migration by allowing the seasonal workers to stay in an EU Member State for a period of up to 9 months, after which they will have to return to their country of usual residence. During the period that they are allowed to stay in the host EU Member State, they cannot however bring their family members with them. Despite ILO conventions and recommendations purporting the migrant workers’ right to family unity, and despite the right to family life as recognized by the European Union, the Seasonal Workers Directive forces the third country national worker to leave his/her family behind in order to take up seasonal employment in the EU. Whereas this particular provision in the Directive is drafted in a gender-neutral way, bearing in mind that most women in sending societies are still the primary caregiver in the family, it seems to be an almost inevitable effect of the Directive that in practice more men than women will be able to benefit from its regime. In many cases it will just not be possible for the women to leave their family behind for nine months a year.

The above paragraphs mention only two aspects in which the EU labor migration law may be indirectly discriminating women. This rather quick analysis seems to lead to the conclusion that, even though gender equality has risen to the status of fundamental principle of EU law, the scope of the principle is rather limited in that it does not protect third country migrant workers in the same way it protects EU citizens.

Margarite Helena Zoeteweij
PostDoc, nccr – on the move, University of Fribourg

Margarite Helena Zoeteweij has published a more detailed assessment of gender-related aspects of the EU labor migration law in the online paper series of the Queen’s University Belfast “The Principle of (In)equality in EU Labour Migration Law”.

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