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Cofunded by the European
Union
Fourth focussed study 2016
Illegal employment of Third-Country Nationals in France
French National Contact Point of the European Migration Network
April 2017
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PRESENTATION OF THE FRENCH NATIONAL CONTACT POINT
Contacts
- Marie-Hélène Amiel: [email protected] Head of Department for Statistics, Studies and Documentation
- Jean-Baptiste Herbet: [email protected] Deputy Head of Department
- Christelle Caporali-Petit: [email protected] Coordinator of the French National Contact Point of the European Migration Network
- Anne-Cécile Jarasse: [email protected] Policy officer within the European Migration Network
- Tamara Buschek-Chauvel: [email protected] Policy officer within the European Migration Network
Address Point de contact national du Réseau européen des migrations Département des statistiques, des études et de la documentation General Directorate for Foreigners in France Ministry of the Interior Place Beauvau 75800 Paris Cedex 08
Websites Official EMN website (in English): http://ec.europa.eu/dgs/home-affairs/what-we-do/networks/european_migration_network/index_en.htm - French NCP website (in French): https://www.immigration.interieur.gouv.fr/Europe-et-International/Le-reseau-europeen-des-migrations-REM2
French National Contact Point: In France, the National Contact Point (NCP) for the European Migration Network (EMN) is attached to the Directorate General for Foreign Nationals in France at the Ministry of the Interior.
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ILLEGAL EMPLOYMENT OF THIRD-COUNTRY NATIONALS
IN FRANCE
Study carried out by the French National Contact Point
for the European Migration Network (EMN)
April 2017 Disclaimer: The information provided by the FR EMN NCP is considered to be up to date and objective, and thus in accordance with the context and aims of the study. However, this information may not be exhaustive and representative of the overall official policy in France. The FR EMN NCP shall not be held liable, under any circumstances, for the use which may be made of the information contained in this study.
The European Migration Network was set up by Council Decision 2008/381/EC and is coordinated by the
European Commission. The EMN National Contact Point is financially supported by the Ministry of the Interior's General
Directorate for Foreign nationals in France.
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List of acronyms
- ACOSS: Central Office for Social Security Organisations (Agence centrale des organismes
de sécurité sociale)
- BTP: the construction industry (Bâtiment et travaux publics)
- CESEDA: Code on Entry and Residence of Foreigners and Right of Asylum (Code de
l'entrée et de séjour des étrangers et droit d'asile)
- CNLF: National Anti-Fraud Committee (Comité national de lutte contre la fraude)
- CNLTI: National Commission against Illegal Employment and the Fraudulent Posting of
Workers (Commission nationale de lutte contre le travail illégal et la fraude au
détachement)
- CODAF: Departmental Operational Anti-Fraud Committee (Comité opérationnel
départemental anti-fraude)
- DGEF: General Directorate for Foreign nationals in France (Direction générale des
étrangers en France)
- DGT: General Directorate for Labour (Direction générale du travail)
- DIRECCTE: Regional Directorate for Business, Competition, Consumer Affairs, Labour
and Employment (Direction régionale des entreprises, de la concurrence, de la
consommation, du travail et de l’emploi)
- DNLF: National Anti-Fraud Delegation (Délégation nationale à la lutte contre la fraude)
- DPAE: Advance Notification of Recruitment (Déclaration préalable à l’embauche)
- DPSIT: Labour Inspectorate Steering Department (Département du pilotage du système
d’inspection du travail)
- DSN: Nominative Social Declaration (Déclaration sociale nominative)
- ESTT: Employing a Foreigner without a Work Permit (Emploi d’étranger sans titre de
travail)
- MSA: Agricultural Mutual Fund (Mutualité Sociale Agricole)
- OCLTI: Central Office to Counter Illegal Employment (Office central de lutte contre le
travail illégal)
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- OCRIEST: French Office for the Suppression of Unauthorised Immigration and the
Employment of Foreigners without Residence Permits (Office Central pour la Répression
de l'Immigration irrégulière et de l'Emploi d'étrangers Sans Titre)
- OFII: French Office for Immigration and Integration (Office Français de l'Immigration et
de l'Intégration)
- OQTF: Order to leave French territory (Obligation de quitter le territoire français)
- PNLTI: National Plan to Combat Illegal Employment (Plan national de lutte contre le
travail illégal)
- URSSAF: Social Security and Family Allowance Contribution Collection Service (Union
de recouvrement des cotisations de sécurité sociale et d’allocations familiales)
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TABLE OF CONTENTS
Executive summary .................................................................................................................... 7
Section 1: Overview of the situation in France ...................................................................... 10
Section 2: Preventative measures ............................................................................................ 19
Section 3: Identification of illegal employment of TCNs ...................................................... 28
Section 4: Sanctions for employers ......................................................................................... 41
Section 5: Outcomes for TCNs found to be working illegally .............................................. 52
Conclusion ................................................................................................................................. 68
ANNEXES ................................................................................................................................. 69
Annex 1: Statistical annexes ...................................................................................................... 69
Annex 2: List of people interviewed or having contributed to the study ................................... 74
Annex 3: Bibliography ............................................................................................................... 76
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Executive summary
Legally enshrined in Law No. 2005-882 of 2 August 2005,1 the concept of illegal employment
includes a range of major public order fraudulent activities of a social and economic nature,
covered by Article L.8211-1 of the Labour Code: undeclared work, illegal subcontracting, the
unlawful supply of workers, employing foreign workers without a work permit, irregularly holding
several jobs, making fraudulent or false declarations to gain benefits for unemployed workers.
The Law of 7 March 2016 on the rights of foreigners in France2 replaced the concept of
“undocumented foreigner” with that of “foreigner not authorised to work”. A third-country
national entering France to take up paid employment must hold a work permit, which may take
the form of either a visa or a residence permit, or a document which is separate from the residence
permit. In the event of illegally employing a worker, sanctions are in place for the employer.
Combating illegal employment is a government priority, reflected through the launch of the first
National Action Plan for 2004-2005 and an intensification of inspections by government
authorities and welfare institutions. On 30 May 2016, the 2016-2018 National Plan to Combat
Illegal Employment (PNLTI) was adopted during a meeting of the National Committee against
Illegal Employment. It strives to improve European efficiency, to combat complex cases of fraud
particularly in relation to the posting of workers, and to develop an intervention and prevention
strategy.
Combating illegal employment is a key issue, both for the State and for the victims of the
phenomenon. It consists of a range of major types of fraud relating to economic activity and
the employment of workers, resulting in significant losses for the public purse in terms of tax
income and social security contributions. Among other things, it deprives workers of employee
rights granted by the law or collective agreements on individual rights in the employment contract,
such as salaries and working conditions. Victims of illegal employment are not only unable to
benefit from labour legislation, but are also deprived of their rights in terms of social protection.
As well as creating situations of great insecurity and vulnerability, illegal employment may
encourage irregular immigration, human trafficking and trafficking of foreign labour.
Moreover, the phenomenon is becoming increasingly difficult to detect, forcing public services
to constantly adapt to combat illegal employment in light of increasingly complex cases of
fraud. Faced with these different issues, the institutional and legal mechanisms to combat the various
forms of illegal employment have been strengthened in recent years. Several legal and regulatory
measures have been taken to improve inspection methods and the powers of authorised agents, to
encourage joined-up working between Ministries, and to strengthen criminal, administrative and
civil sanctions.
The aim of this study is to analyse the measures in place in France to combat the illegal
employment of third-country nationals, to identify the main sectors affected and the obstacles,
and to highlight strategies and good practices to overcome them.
The scope of the EMN study looks at illegal employment (partially or totally undeclared) of the
following two categories of workers:
1 Law No. 2005-882 of 2 August 2005 to promote small and medium enterprises.
https://www.legifrance.gouv.fr/affichTexte.do?cidTexte=JORFTEXT000000452052 2 Law No. 2016-274 of 7 March 2016 on the rights of foreigners in France.
https://www.legifrance.gouv.fr/affichTexte.do?cidTexte=JORFTEXT000032164264&categorieLien=id
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Third-country nationals in a regular situation in terms of residence and in an irregular
situation in terms of employment, i.e. not authorised to access the labour market (e.g.
tourists) or failing to comply with labour market access conditions (e.g. students working
beyond the number of authorised hours);
Third-country nationals in an irregular situation with regard to residence and,
consequently, employment, i.e. people who do not meet or no longer meet the conditions for
residence in France. This category includes third-country nationals who did not enter the
country through legal immigration channels and third-country nationals who remain in the
territory despite the fact that their residence permit or visa is no longer valid.
In the framework of this study, the concept of “undocumented foreigner” or “foreigner not
authorised to work” is used to describe any third-country national who is not in possession of a
work permit. Only the concept of “employing foreigners not authorised to work” is used when
analysing offences relating to illegal employment.
Combating the fraudulent posting of foreign workers is a priority in France, reflected in the
significant strengthening of the legislative arsenal and labour market inspections. However, the
situation of both posted workers and independent workers will not be covered as part of this
focussed study.
This study is based on a series of interviews and questionnaires carried out with various
stakeholders working to combat illegal employment.
The study begins with a look at the scale of the phenomenon in France and changes in policies
to combat illegal employment. Several reports allow us to estimate the scale of this phenomenon
and to analyse its financial impact on society. The government has made combating illegal
employment a priority for all enforcement services.
Section 2 looks at the main measures to prevent illegal employment, targeting employers and
employees. Prevention is a cornerstone of the policy to combat illegal employment. Various
national and local initiatives have been taken, including the signature of partnership
agreements; the creation of new tools to facilitate inspections; awareness-raising meetings within
companies; and publicity around sanctions which could have a dissuasive effect in light of the
risks.
Section 3 analyses measures aiming to identify third-country nationals working illegally and
presents the various authorities responsible for inspections. It is important to note that third-
country nationals are not directly targeted, but may be identified during inspections. In line with
Article L.8271-17 of the Labour Code, three bodies have the power to identify offences relating
to employing a foreigner who is not authorised to work: labour inspectors, judicial police
officers and agents, and officers of the General Border Directorate.
Section 4 then looks at the various types of administrative and penal sanctions imposed upon
employers who have illegally employed third-country nationals, and analyses the legal
framework for combating illegal employment and the effectiveness of the sanctions. .
Finally, Section 5looks at the outcomes for illegally employed third-country nationals,
presenting mechanisms for accessing the legal system and enforcing their rights. Even foreign
workers who are undeclared or are in a situation of illegal employment have rights which they
can demand be enforced by addressing themselves, as appropriate, to the labour inspectorate, an
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industrial tribunal, or – in terms of their situation with regards to social security – the National
Health Insurance Body (CPAM), URSSAF3 or the MSA.4
This section also presents several case studies in order to better understand, in practical terms, the
procedures applied under the regulations and outcomes for third-country nationals.
The synthesis report, prepared on the European scale on the basis of studies conducted by the
national EMN contact points, presents an overview of all the measures implemented by Member
States to combat illegal employment, while identifying good practice and obstacles in this regard.
3 URSSAF: Social Security and Family Allowance Contribution Collection Service (Union de recouvrement des
cotisations de sécurité sociale et d’allocations familiales). 4 MSA: Agricultural Mutual Fund (Mutualité Sociale Agricole).
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Section 1: Overview of the situation in France
This section aims to provide an overview of the phenomenon in France, and presents the political
and legal framework for combating illegal employment.
Q1. Please provide an overview of the general situation with regard to illegal employment on
the basis of available research and information in France, including, inter alia:
Q1a. Extent to which the grey and informal economy is present in France
By definition, illegal employment is not declared and does not, therefore, fall within data collection
systems. Although it is difficult to measure the scale of the phenomenon, it is, however, possible
to estimate the scale of illegal employment on the basis of inspections conducted and the number
of employers sanctioned, in order to get an idea of trends.5
Analysis of reports on illegal employment, which are based on offences recorded by inspectors in
official reports communicated to the public prosecutor, allows us to assess the scale of illegal
employment offences. The report6 by the General Directorate for Labour on the analysis of official
reports on illegal employment in 2014 stresses, however, that this only reflects some fraudulent
practices, insofar as it does not cover unobserved practices, any practices which have been
observed but which did not result in an official report, and any practices which have been observed
but have been prosecuted under other, more appropriate, offences (e.g. fraud, money laundering,
or abuse of a vulnerable individual). (See Q1d for a more detailed analysis).
According to INSEE, undeclared lawful activities form part of the black market, the impact of
which was estimated at 3.4% of gross domestic product in 2010.7
In terms of assessing shortfalls in social security contributions resulting from the phenomenon
of undeclared work, several studies have been carried out using different methodological
approaches. In 2014, the Court of Audit reported a shortfall of 18 to 20 billion euros in social
security contributions.8 The Central Office for Social Security Organisations (ACOSS) (Agence
centrale des organismes de sécurité sociale) developed a new estimate using a different method,
on the basis of random inspections conducted by URSSAF. These estimates are published every
year in a thematic report entitled “Le contrôle et la lutte contre la fraude au prélèvement social”.9
The first estimate stated that there was a shortfall of between 6.1 and 7.4 billion euros in social
contributions and dues.
5 Interview conducted with the Labour Inspectorate Steering Department (Département du pilotage du système
d’inspection du travail - DPSIT) within the Ministry for Labour, Employment, Professional Training and Social
Dialogue. 6 General Directorate for Labour, Analyse de la verbalisation du travail illégal en 2014, December 2015.
http://travail-emploi.gouv.fr/IMG/pdf/rapport_verbalisation_en_2014.pdf 7 Source: INSEE, National Accounts 2010, May 2014. 8 Sources:
- Court of Audit, La lutte contre les fraudes aux cotisations sociales, des enjeux sous-estimés, une action à intensifier,
September 2014.
- DNLF, Lutte contre la fraude, 2015 Report, DNLF 2015 Report.
http://www.economie.gouv.fr/files/files/directions_services/dnlf/ra-dnlf-2015-bat%281%29.pdf 9 ACOSS, Rapport d’activité thématique 2015, Le contrôle et la lutte contre la fraude au prélèvement social.
http://www.acoss.fr/files/contributed/Acoss%20et%20les%20Urssaf/RA%20RT%202015/Contrôle%20et%20lutte%
20contre%20la%20fraude
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Q1b. Extent to which fighting illegal employment is a political priority in France
The fight against illegal employment has been a priority for successive governments for several
decades. Each government has addressed the issue, bringing together the social partners and
defining priorities either in terms of sectors (construction (BTP), hospitality and catering, etc.),
or in terms of issues (false statuses, fraudulent posting of workers, etc.).
This involves several Ministries, in particular the Ministry of the Interior, the Ministry for Labour,
Employment, Professional Training and Social Dialogue, the Minister for Justice, and the Minister
for the Economy and Finances – more specifically the National Anti-Fraud Delegation (Délégation
nationale à la lutte contre la fraud).
Since 2004, priorities have been defined on a multi-annual basis, in the context of national
plans to combat illegal employment (PNLTIs). The 2013–2015 PNLTI and the 2016–2018
PNLTI reflect the government’s desire to continue this approach, particularly to combat the
fraudulent posting of workers, which is damaging to employees, companies and the public
purse.10
The National Commission against Illegal Employment and the Fraudulent Posting of
Workers (Commission nationale de lutte contre le travail illégal et la fraude au détachement)
(CNLTI), presided over by the Prime Minister, meets every year to determine the strategic
direction of the PNLTI. The last Commission met on 30 May 2016, with a view to drawing up
the 2013–2015 national plan to combat illegal employment and the fraudulent posting of workers
and to discuss with the social partners and members of the CNLTI the measures proposed by
the 2016–2018 plan.
Changes in the National Plans to Combat Illegal Employment since 2010:
The 2010–2011 National Plan to Combat Illegal Employment had four priorities:
- combating undeclared work
- combating the employment of foreigners without work permits
- tackling the fraudulent use of specific statuses
- punishing cross-border fraud
These priorities target the five sectors of professional activity deemed to be the most exposed
to illegal employment practices:
- construction (BTP)
- hospitality and catering
- business services
- entertainment
- seasonal agricultural work
While the 2010–2011 plan, which was continued in 2012, aimed to inspect companies in these
identified sectors, the 2013–2015 National Plan to Combat Illegal Employment took a more
overarching approach and was based around five priority objectives:
- combating all forms of undeclared work
10 Although combating the fraudulent posting of foreign workers is a priority in terms of countering illegal employment
in France, this will not be addressed in any detail here, as it falls outside the scope of this study.
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- combating the fraudulent posting of workers within the context of
international services
- controlling successive sub-contracting operations
- controlling and punishing the use of false statuses
- punishment for employing foreigners without work permits
The National Commission to Combat Illegal Employment, which was held on 30 May 2016
under the presidency of the Prime Minister, adopted the 2016–2018 National Plan to Combat
Illegal Employment. The 2016–2018 plan has three new objectives:
- To seek greater European efficiency to effectively prevent and combat the
fraudulent posting of workers in Europe;
- To combat complex cases of fraud, particularly in relation to the posting of
workers. The plan also focusses on other forms of illegal employment, such
as the use of false statuses, new forms of undeclared work, and indecent
working and living conditions to which foreign workers in industry are
particularly victim.
- To develop a concerted intervention and prevention strategy aiming to
target sectors and regions to more effectively fight against more complex
fraud.
The plan sets out new methods to achieve this:
- Tools to strengthen the effectiveness of inspections and to stop the most
complex types of fraud, through seeking greater co-ordination, greater powers
for the various inspection services, and better regional organisation;
- A communication plan to support a reinforced prevention policy.11
Q1c. Public and/or policy debates in the area of illegal employment
One of the main debates is around the fraudulent posting of foreign workers, its impact on the
economy, and the tools to be implemented to effectively fight against this phenomenon. The BTP
card is an example of the changing debate around the fight against illegal employment and the
fraudulent posting of workers.
The BTP card is the result of the involvement of professional organisations in the construction
industry, which is marked by a significant use of posted workers, an increase of the levels of sub-
contracting, and a significant rate of fraud. In 2006, professionals in the construction industry took
the initiative to develop individual professional cards for their employees. Initially voluntary, this
card gradually became considered by all companies in the sector as an effective instrument to fight
against illegal employment. The BTP card, created by the Law of 6 August 2015 on growth,
activity and equality of economic opportunity,12 marked a new step in the fight against illegal
employment in all its forms (undeclared work, the employment of foreigners not authorised to
work, the unlawful supply of workers, etc.) and the fraudulent posting of foreign workers.
Encouraged by the social partners in the sector, the government wanted to make the BTP card
compulsory and to extend it to temporary and posted workers.
11 National Commission to Combat Illegal Work Employment (Plan national de lutte contre le travail illégal) National
Plan to Combat Illegal Employment (2016-2018). 12 Law No. 2015-990 of 6 August 2015 on growth, activity, equality of economic opportunity, known as the “Loi
Macron”.
https://www.legifrance.gouv.fr/affichTexte.do?cidTexte=JORFTEXT000030978561&categorieLien=id
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Debates have also covered the revision of Directive 96/71/EC by the European Parliament and
the Council of 16 December 1996 and in particular the adoption of Directive 2014/67/EU by the
European Parliament and the Council of 15 may 2014 on the enforcement of Directive 96/71/EC
concerning the posting of workers in the context of the provision of services, to more effectively
combat complex cases of fraud and social dumping. The 2016–2018 PNLTI aimed to continue
initiatives to revise the European framework on the posting of workers. In addition to revising the
posted workers Directive, France is in favour of additions to the draft revision of EC Regulation
No. 883/2004 on the coordination of social security systems, to incorporate changes to the
regulations determining the social security regime for workers, which give rise to abuse and distort
business competitiveness, to the detriment of the rights of workers themselves.13
Q1d. Extent to which illegal employment of TCNs is an issue in France (e.g. severity and
intensity of the issue), in particularly concerning the TCNs;
Employing foreigners who are not authorised to work is the second most widely
reported offence.
Analysis14 of official reports on illegal employment in France demonstrate that more than 15,300
offences were recorded under the fight against illegal employment in 2014. The employment
of foreigners without a work permit15 was the second most widely-reported offence in 2014,
corresponding to 12.6% of all offences. The first offence relates to undeclared work (77% of all
offences), representing a little more than three quarters of all offences. Illegal sub-contracting
and the unlawful supply of labour sits in third place (3.7%).16 More than 120 nationalities appear
across all the procedures. Of all the offences recorded in relation to illegal employment, 51%
related to EU nationals and 24% to third-country nationals.
In 2014, 1,930 offences of employing a foreigner without a work permit17 were recorded (2,579 in
2013 and 2,351 in 2012). This offence, which represents 12.6% of total offences in 2014 was 1.3
points lower than in 2013. Official reports on this offence in 2014 were divided by competent
service as follows: police (65%), gendarmerie (18%), and labour inspectorate (14%)
(respectively 59%, 22% and 16% in 2013).
For all illegal employment offences, this offence is principally found in the construction sector
(43%), hospitality and catering sector (21%) and in sales (17%).
Analysis of the distribution of the main offences by sector in 2014 shows that the offence of
employing a foreigner without authorisation to work represented 9% of offences in the agricultural
sector (11% in 2013), 15% in the construction sector (18% in 2013), 14% in the hospitality sector
(13% in 2013), 13% in the “sales and repair of cars and motorbikes” sector (same percentage as
13 National Commission to Combat Illegal Employment, op. cit. 14 The annual report on official reports of illegal employment brings together information about the official reports
which have been made and closed by 31 December, submitted by inspectors authorised to work on illegal employment.
This investigation enabled the various forms of fraudulent illegal employment to be observed on the national and
regional scale and to assess the scale and evolution of the phenomenon. 15 Term replaced by “foreigner not authorised to work” by the law of 6 March 2016 on the rights of foreigners in
France. 16 General Directorate for Labour, Analyse de la verbalisation du travail illégal en 2014, December 2015.
http://travail-emploi.gouv.fr/IMG/pdf/rapport_verbalisation_en_2014.pdf 17 The offence of employing a foreigner without a work permit relates to all third-country nationals outside the
European Union, as well as Croat nationals holding a work permit during the transitional period between 1 July 2007
and 1 July 2015.
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2013), 13% in the sector of “extractive industries and the manufacturing industry” (same
percentage as in 2013), 7% of the transport sector (8% in 2013) and 10% of the “financial activities,
property, specialist, scientific, technical, administrative and support services” (12% in 2013).18
The phenomenon of illegal employment is increasingly complex to identify.
In 2014, 7,630 official reports relating to illegal employment were filed by the services responsible
for combating illegal employment, compared to 9,050 in 2013, i.e. a reduction of 16%. The report
specifies that the drop in this indicator does not reflect a reduction in inspection work but reflects
a complexification of the types of fraud recorded, which makes them more difficult to detect
and takes longer to process. The investigation also specifies that “inspection agents report fewer
offences but strive to dismantle larger fraudulent systems which require long investigations, in-
depth research and numerous partnerships, including abroad.”19
27% of criminal procedures result from joint inter-departmental operations, i.e. 2,047 in 2014
(2,363 in 2013).20
Several actors questioned as part of this study21 mention the complexification and rapid
evolution of fraud, such as the use of false statutes, the temporary nature of certain companies,
etc. Several factors contribute towards the development of these offences, such as the emergence
of the digital economy.
Q1e. Available research on the main routes to an irregular employment situation in France
Several reports deal with the phenomenon of illegal employment in France.
Several reports on illegal employment are prepared every year by the General Directorate for
Labour (DGT), without specifically focussing on the illegal employment of third-country
nationals. They do, however, analyse the various offences relating to illegal employment, the
sectors affected, inspections conducted and reports filed.
The National Anti-Fraud Delegation (Délégation nationale à la lutte contre la fraud) prepares
reports, in particular the annual review which presents the main results of work to combat various
types of fraud.22
The OECD has published various reports and working documents on the illegal employment of
third-country nationals in Europe.23
18 General Directorate for Labour, Analyse de la verbalisation du travail illégal en 2014, December 2015. 19 General Directorate for Labour, op.cit.
http://travail-emploi.gouv.fr/IMG/pdf/rapport_verbalisation_en_2014.pdf 20 General Directorate for Labour, Analyse de la verbalisation du travail illégal en 2014, December 2015.
http://travail-emploi.gouv.fr/IMG/pdf/rapport_verbalisation_en_2014.pdf 21 Questionnaires completed by the DIRECCTE Auvergne-Rhône-Alpes, Grand Est and Hauts-de-France, March
2017. 22 DNLF, Lutte contre la fraude, Bilan 2015, op. cit. 23 OECD, Combatting the Illegal Employment of Foreign Workers, August 2000.
http://www.oecd-ilibrary.org/social-issues-migration-health/combating-the-illegal-employment-of-foreign-
workers_9789264182394-en
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Q1f. Any (planned) changes in law or practice in the field of illegal employment
The legal arsenal for combating illegal employment has been particularly strengthened in recent
years.
Legislative changes relating to the employment of foreigners without authorisation
Since 1 July 2007, work to combat fraud has been strengthened, making it compulsory for
employers to check the administrative situation of potential foreign recruits with the
authorities.24 This measure aims to check that the foreign worker is in a regular situation with
regards to residence and holds a work permit, to combat the employment of unauthorised foreign
workers.
The Law of 16 June 2011 on immigration, integration and nationality25 transposes into national
law Directive 2009/52/EC of 18 June 2009 providing for minimum standards on sanctions and
measures against employers of illegally staying third country nationals, known as the “Sanctions”
Directive.26 It introduces administrative and criminal sanctions for employers while
strengthening certain existing sanctions. It also introduces provisions aiming to guarantee the
social and financial rights of foreigners working illegally, by increasing their financial
entitlements, by introducing a presumption of an employment relationship, and by
introducing a mechanism so the employee can introduce a claim and enforce a judgement
against the employer for any outstanding remuneration or call on the competent authority to
recover outstanding remuneration. The law goes beyond transposition of the Directive, by
covering other measures relating to the prevention of illegal employment. It standardises the
powers of inspection officers, regardless of the illegal employment offence committed. It also
establishes a more efficient legal framework to combat illegal employment, particularly in
relation to the employment of foreigners without authorisation to work.
The Law of 7 March 2016 on the rights of foreigners in France27 introduced a terminological
change by replacing the concept of “undocumented foreigner” with that of “foreigner
unauthorised to work”.
The Law of 8 August 2916 on employment, modernisation of social dialogue and protecting
occupations28 extends the right of communication and exchange of information on illegal
employment between competent control bodies. Article L.8271-5 of the Labour Code, created
by Article 109 of the Law of 8 August 2016, grants a right to reciprocal communication and
exchange between all competent control officers working to combat illegal employment (police,
gendarmerie, tax and border administration and officers responsible for collecting social security
contributions) and officers in the Centre des Liaisons Européennes et Internationales de Sécurité
24 Law No. 2006-911 of 24 July 2006 on immigration and integration.
https://www.legifrance.gouv.fr/affichTexte.do?cidTexte=JORFTEXT000000266495 25 Law No. 2007-672 of 16 June 2011 on immigration, integration and nationality.
https://www.legifrance.gouv.fr/affichTexte.do?categorieLien=id&cidTexte=JORFTEXT000024191380 26 Directive 2009/52/EC of the European Parliament and Council of 18 June 2009 providing for minimum standards
on sanctions and measures against employers of illegally staying third-country nationals.
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2009:168:0024:0032:fr:PDF 27 Law No. 2016-274 of 7 March 2016 on the rights of foreigners in France.
https://www.legifrance.gouv.fr/affichTexte.do?cidTexte=JORFTEXT000032164264&categorieLien=id 28 Law No. 2016-1088 of 8 August 2016 on employment, modernisation of social dialogue and protecting occupations.
https://www.legifrance.gouv.fr/affichTexte.do?cidTexte=JORFTEXT000032983213&categorieLien=id
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Sociale (CLEISS) of any information or document which may be useful to the completion of their
respective missions.
New measures set out in the 2016–2018 National Plan to Combat Illegal Employment.
The plan sets out several actions to strengthen inspections and adapt them to changes in fraudulent
practices:
- the creation of a new steering body, jointly led by the General Directorate for Labour,
the Directorate for Social Security and the National Anti-Fraud Delegation, the objective
of which is to facilitate implementation of the PNLTI and to better co-ordinate the various
departments involved;
- intensification of joint controls between the various services; - the establishment of a vast information campaign to raise public awareness of the harmful
consequences of illegal employment;
- the development of sectoral agreements with a view to continuing ongoing work with
the social partners.
Q1g. Issues with illegal employment in particular industries and sectors and particular types
of employer
The main sectors affected are as follows:29
- Construction (BTP);
- Sales;
- Craft industry;
- Hospitality and catering;
- Agriculture;
- Transport;
- Security;
- Removals;
- Entertainment.
Other sectors are also affected, such as the provision of services by posted workers, fruit picking,
temporary work by foreign nationals via foreign temporary employment companies, and sensitive
sectors such as abattoirs.30
According to the annual review on official reports of illegal employment, of the 7,867 companies
fined in 2014, very small companies form the significant majority. Nearly seven companies out
of ten belong to the construction, sales and hospitality/catering sectors.31
Fraud has become much more complex and the phenomenon of outsourcing and the ramification
of large companies has led to legal arrangements combining false sub-contracting, fictitious
29 Interviews carried out with representatives of the Labour Inspectorate Steering Department (Département du
pilotage du système d’inspection du travail), the General Directorate for Labour, the Ministry for Labour,
Employment, Professional Training and Social Dialogue, and representatives of the National Anti-Fraud Delegation
(Délégation nationale à la Lutte Contre la Fraude), Ministry of the Economy and Finances, January 2017. 30 Interview carried out with representatives of the Labour Inspectorate Steering Department (Département du pilotage
du système d’inspection du travail) within the DGT, January 2017. 31 General Directorate for Labour, Analyse de la verbalisation du travail illégal en 2014, December 2015.
http://travail-emploi.gouv.fr/IMG/pdf/rapport_verbalisation_en_2014.pdf
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relocations, false temporary companies, and false statuses. These arrangements disguise the real
beneficiaries of the services which are organised, sometimes from one or more foreign territories.32
Other studies, particularly by ACOSS, make it possible to establish the profiles of at risk
companies, such as, for example, the age of the company (young companies have a higher risk of
fraud than companies which have been in existence for more than ten years) or the size of the
company (small companies are most ‘at risk’).33
Q1h. Profiles of the illegally working individuals (EU, EEA or TCNs);
In data systems on company inspections, there is no field to enter the nationality of the victim.
However, the TADEES information system,34 which the DGT uses to analyse official reports on
illegal employment,35 provides information on the nationality of victims. This is the only data
available by nationality.36 More than 120 nationalities appear across all the procedures. Of all the
offences recorded relating to illegal employment, 51% concerned EU nationals and 24% third-
country nationals (see Q1d).
Although it is difficult to establish a precise profile of third-country nationals in an irregular
employment situation, insofar as these data are not collected, the questionnaires completed by
several Regional Directorates for Business, Competition, Consumer Affairs, Labour and
Employment (DIRECCTE) as part of this study shed light on several aspects.37 They are, for the
most part, relatively young men (aged between 20 and 35).
Q1i. Other related issues experienced in France which may directly affect the extent of illegal
employment, such as corruption, trafficking in human beings, etc.
Illegal employment offences may be seen in light of other related offences such as human
trafficking, abuse of vulnerability, trafficking in foreign labour and documentary fraud.
Analysis of official reports on illegal employment in France38 identify other offences relating to
illegal employment which may be noted when this offence is reported. In particular, reports on
the entry, assisted entry and irregular residence of foreigners make up more than a third of the
total of these “other offences”. In 2014, this represented 35% of other offences, i.e. approximately
330 reports.
In terms of human trafficking or attempted human trafficking, two offences were identified in
the illegal employment procedures transmitted in 2014.
The 2016–2018 PNLTI specified its objectives in terms of the fight against human trafficking
and forced labour, recalling that trafficking in human beings for the purposes of labour is a
32 Interview with representatives of the DNLF, January 2017. 33 Central Office for Social Security Organisations (ACOSS), Rapport d’activité thématique 2015, le contrôle et la
lutte contre la fraude au prélèvement social.
http://www.acoss.fr/files/contributed/Acoss%20et%20les%20Urssaf/RA%20RT%202015/3031-RT-Controle-2015-
%20CA%2024%20juin%202016.pdf 34 TADEES is a software application integrated into each department which records illegal employment procedures
reported by all authorised control services. This data is reported to the DGT which establishes the annual statistics. 35 General Directorate for Labour, op.cit. 36 Interviews carried out with representatives of the Labour Inspectorate Steering Department (Département du
pilotage du système d’inspection du travail) within the DGT, and representatives of the DNLF, January 2017. 37 Questionnaire completed by DIRECCTE Auvergne-Rhône-Alpes, March 2017. 38 General Directorate for Labour, Analyse de la verbalisation du travail illégal en 2014, December 2015.
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serious form of illegal employment which must also fall within labour inspectors’ remits. This
extended remit was introduced by Order 2016–413 of 7 April 2016 on controlling the application
of labour legislation as part of the 2014–2016 National Action Plan against Human Trafficking.
The PNLTI sets out several actions:
- The establishment of training modules for labour inspectors to incorporate this new
competence.
- The appointment of a “human trafficking” reference point within the employment units
of each DIRECCTE to raise awareness among employers of the consequences of using
forced labour and employing people who are victims of trafficking in human beings, in
connection with the Interministerial Mission for the Protection of Women Victims of
Violence and the Fight against Trafficking in Human Beings (MIPROF).
- The conclusion of a partnership agreement on trafficking in human beings, as part of
the National Action Plan against Trafficking in Human Beings, which will be proposed to
employers’ organisations, trades unions, and chambers of commerce, and which may then
be rolled out on the local level.
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Section 2: Preventive measures
This section provides a comparative overview of the prevention measures established in France
to combat the illegal employment of third-country nationals. It analyses the measures and
incentives for employers and the measures and incentives for employees. Furthermore, a cross-
cutting distinction will be made between two main categories of third-country nationals subject to
examination of this Study: irregularly staying and illegally working TCNs and regularly staying
and illegally working TCNs. This section will also highlight good practices and success stories in
prevention measures.
Q2. Please describe the types of preventive measures targeting TCNs as well as employers of
TCNs to discourage them from employing a TCN illegally in France
Prevention is a major focus of the policy to combat illegal employment. Inspections are not the
only way of combating illegal employment. Different prevention measures have been established
on the national and local levels (notably at Departmental level) to combat offences. The annual
DGT review39 describes these actions, based on:
- discussions around charters of good practice:
- the establishment of awareness-raising and information activities;
- prevention campaigns;
- information campaigns (press, websites, etc.).
According to the report, officers stress the positive effects of these joined-up preventive measures.
39 General Directorate for Labour, Bilan des contrôles dans les secteurs prioritaires identifiés par le plan national de
lutte contre le travail illégal en 2014, February 2016.
http://travail-emploi.gouv.fr/IMG/pdf/controle_des_secteurs_prioritaires_en_2014.pdf
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a. Preventive measures and incentives for employers
It is important to specify that the measures make no distinction between third-country nationals who are irregularly staying and working, and third-
country nationals who are regularly staying but illegally working.
Preventive measures and
incentives for employers
Irregularly staying and illegally working TCNs.
Regularly staying and illegally working TCNs.
a.1. Information campaigns
targeted at employers
Yes
Awareness raising and dissuasive activities: the role of Prefects on the local level
No recent communication campaigns have been carried out as planned in the PNLTI. A national campaign is planned
for 2017. However, on the local level, the Prefects strive to communicate on the consequences, notably in terms of
sanctions, of the most significant cases of fraud which are detected. Informing employers of sanctions through the
publication of press releases or articles in the media, aims to have a dissuasive effect.40
The 2016-2018 PNLTI: focus on communication to strengthen the prevention policy
The 2016–2018 PNLTI41 anticipates the establishment of a “public” communication campaign on the shared issues
of combating illegal employment on the national and local levels.
- On the national level, this consists of launching a public communication campaign to “heighten understanding
of the need to combat illegal employment in order to preserve our social model and workers’ fundamental
rights.” The plan specifies that this campaign must also target “heads of companies in order to raise awareness
of the consequences of failing to comply with the rules on fair competition.”
This campaign should be communicated by the consular networks which may disseminate information in their
professional publications and by the national administrations and services to combat illegal employment.
Moreover, the PNLTI states that future sectoral partnership agreements must include a section on communication
with companies and employees.
- On the local level, in the regions and departments, the plan focusses on media coverage of the signature of
partnership agreements in order to “increase the impact on the professional sector in question”.
40 Interviews carried out with representatives of the Labour Inspectorate Steering Department (DPSIT) within the DGT, and representatives of the DNLF, January 2017. 41 National Commission to Combat Illegal Employment, National Plan to Combat Illegal Employment (2016-2018).
http://www.economie.gouv.fr/files/files/directions_services/dnlf/PNLTI_2016-2018.pdf
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The Departmental Operational Anti-Fraud Committees (CODAFs)42 also have a role to play, by using local
partners’ communication facilities to raise awareness of the harmful effects of illegal employment and the sanctions
which those committing these offences may face. Notably, communication should strongly focus on new
administrative sanctions in the event of serious and repeated fraud.
The plan recommends that administrative closure decisions made by Prefects, administrative fines and decisions to
suspend international service agreements should be covered widely in the media and communicated by professional
media organisations. It notes that major control operations on the regional level, notably joint inspections, should be the subject of very
wide-ranging and concerted local communication strategies. The most significant cases, those relating to complex
structures or with a high number of authors, and outstanding examples of the work of various inspection bodies are
covered on the national level by the DNLF and all the inspection bodies, to publicise the services’ work and recall the
risks of circumventing or avoiding French and European social and tax regulations.
a.2. Information support for
employers
Yes
Information is available on the DGT website,43 and on the websites of the DIRECCTE, the URSSAF and the MSA.
Information leaflets set out the main regulations to be complied with in order to avoid a situation of illegal employment.
For example, a document was drafted as part of the regional agreement to combat illegal employment, signed on
18 December 2014 between the Government, URSSAF and the Union des Métiers et des Industries de l’Hôtellerie
(UMIH) Paris Île-de-France. Targeting professionals in the hospitality industry, it recalls the regulations to be complied
with in terms of recruitment and employment of workers in this sector, stresses good practices to be followed, and
presents the employers’ sanctions in the event of undeclared work.44
a.3. Partnership agreements and
initiatives by Social Partners
Yes
Partnership agreements concluded between the State and the economic and social partners, are sectoral tools to fight
against illegal employment, enabling awareness raising and involving a number of sectors. Several professional
branches such as transport, agriculture and private security are committed to combating illegal employment. The latest
partnership agreements signed concern the private security and removals sectors and, with regard to the problem of
the fraudulent posting of foreign workers, the construction industry.45
The 2016–2018 PNLTI46 recommends developing preventive actions with the social partners. It recommends
renewing the agreement in the agricultural sector and the development of new agreements in the live and recorded
entertainment and domestic workers’ sectors.
42 The CODAF’s roles and missions are set out in Section 3 on identifying illegal employment and cooperation between actors. 43 http://travail-emploi.gouv.fr/droit-du-travail/lutte-contre-le-travail-illegal/ 44 http://idf.direccte.gouv.fr/sites/idf.direccte.gouv.fr/IMG/pdf/direccte_-_3_vol_travail_illegal_webplanche.pdf 45 Interviews carried out with representatives of the Labour Inspectorate Steering Department (DPSIT) within the DGT, and representatives of the DNLF, January 2017. 46 National Commission to Combat Illegal Employment, National Plan to Combat Illegal Employment (2016-2018).
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a.4. Obligation of the employer to
notify the authorities about
employing a TCN
Yes
In order to combat fraud:
1) Employers must check the administrative situation of potential foreign recruits with the authorities (Article
L.5221-8 of the Labour Code).
The Law of 24 July 2006 on immigration and integration strengthened the policy to combat fraud by making it
compulsory for employers to check the administrative situation of potential recruits with the authorities.47 This
measure aims to check that the foreign worker is in a regular situation with regards to residence and holds a work permit,
to combat the employment of unauthorised foreign workers.
Several situations may arise:
- In terms of direct recruitment by an employer, the employer must check with the Prefecture of the place where the
recruitment takes place, that the foreign national is authorised to undertake salaried employment (Articles L.5221-7 and
L.5221-8 of the Labour Code);
- When a foreign employee asks to be registered on the list of job seekers at Pôle Emploi, this body must check that
the individual has the right to work in France (Article L.5411-4 of the Labour Code);
- In the case of temporary work, the temporary employment company must check with the authorities the first time the
foreign employee is hired. This check then holds as long as the residence permit is valid and for all mission contracts
concluded between the worker and the temporary employment company (Article R.5221-44 of the Labour Code).
The request for verification must be made at least two working days before the effective recruitment date of the
employee. If no answer is received within two working days from the request to the competent Prefecture, the
employer’s obligation is considered to be satisfied (Article R. 5221–42 of the Labour Code).
When the employer has contacted the authorities to check the residency status of the potential foreign recruit, in line
with Article L.5221-8 of the Labour Code, the employer cannot be sanctioned by being held accountable for the fixed
fee for repatriation. The employer can be requested, however, to provide evidence that they have completed this
declaratory requirement.
2) Employers are required to make an Advance Notification of Recruitment (DPAE) for all employees, whether
third-country nationals or otherwise. Employers must declare the recruitment of any employees falling within the
jurisdiction of the general Social Security regime, regardless of the legal form of the company, its sector of activity,
the number of staff, the professional conditions, and the length of time for which the employee is recruited. The DPAE
enables six recruitment-related formalities to be carried out in a single operation and with a single body, URSSAF.48
http://www.economie.gouv.fr/files/files/directions_services/dnlf/PNLTI_2016-2018.pdf 47 Law No. 2006-911 of 24 July 2006 on immigration and integration.
https://www.legifrance.gouv.fr/affichTexte.do?cidTexte=JORFTEXT000000266495 48 Article R.1221-2 of the Labour Code sets out the six formalities which the employer meets through the Advance Notification of Recruitment:
- Registration of the employer on the general social security regime, if the recruitment concerns a non-agricultural worker;
- Registration of the employee with the local healthcare insurance office or, in the case of an agricultural worker, the Agricultural Mutual Fund (MSA);
- Affiliation of the employer to the unemployment insurance regime;
- Request to join a workplace health scheme if the recruitment concerns a non-agricultural worker;
- Request for an information and prevention visit, or request for a pre-recruitment medical examination;
- Declaration for the affiliation of agricultural workers to the complementary pension institutions.
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Non-compliance with this obligation results in application of a penalty (Articles 1221-10 to 1221-21-12 of the Labour
Code).
3) The nominative social declaration (DSN) is also an important tool to facilitate investigations following an
inspection. For employers, this is a simplified approach to social protection and the authorities, which allows information
to be stored digitally. It specifies the length of employees’ activity. This mechanism was rolled out generally in
January 2017. In particular, this tool makes it easier to complete sub-declarations on the number of hours worked.
a.5. Awareness-raising sessions Awareness-raising and monitoring work is regularly carried out with companies. Awareness-raising sessions are
organised, particularly in relation to posted workers. For example, from February to November 2016, more than 1,000
awareness-raising sessions were organised (involving companies and sometimes trades unions, on the risks connected
with using posted workers).49 Awareness-raising sessions were organised through trades associations by the regional
employment and social relations services of DIRECCTE Grand-Est. These sessions targeted companies in various
sectors, such as the chemical, automotive and construction industries.50
a.6. The BTP card The BTP card entered into force on 22 March 2017. This is a professional ID card for employees in the construction
industry. It facilitates inspections and makes it easier to combat illegal employment, particularly the fraudulent posting
of foreign workers. It has been compulsory since 22 March 2017 for workers posted from companies based outside
France.51 It is gradually entering into force for employees and temporary workers from companies based in France.
The first two regions concerned are Nouvelle-Aquitaine and Occitanie. In the event of an inspection at any time, the
BTP card can be used to prove that the employer has complied with the declaration and information relating to the staff
present on the site. The card contains a QR Code (flashcode) that labour inspectors can scan directly. It includes
information about the employee, their employer, and the body which issued the card (Article L.8291-1 of the Labour
Code).52
b. Measures and incentives for employees from third countries
Measure/incentive for
employees
Irregularly staying and illegally working TCNs.
Regularly staying and illegally working TCNs.
b.1. Financial incentives for
employees
No
49 Interview carried out with representatives of the Labour Inspectorate Steering Department (Département du pilotage du système d’inspection du travail) within the DGT, January
2017. 50 Questionnaire completed by DIRECCTE Grand Est, March 2017. 51 Cards can be applied for directly online at the following address https://www.cartebtp.fr/. 52 Created by Law No. 2015-990 of 6 August 2015 on growth, activity, and equality of economic opportunity, known as the “Loi Macron”.
https://www.legifrance.gouv.fr/affichTexte.do?cidTexte=JORFTEXT000030978561&categorieLien=id
Page 24 of 78
Not only can those working illegally not benefit from labour legislation but they are also deprived of their rights in
terms of social protection. Third-country nationals who are identified as “not authorised to work” during inspections
for illegal employment are informed by the inspectors of their social and financial rights (see Section 5).
b.2. Information campaigns
targeted at employees (potential
or current)
Information campaigns do not specifically target employees (see a1).
b.3. Information support for
employees from third countries
Yes. Information is available on the DGT website53 and on the DIRECCTE websites.
53 http://travail-emploi.gouv.fr/droit-du-travail/lutte-contre-le-travail-illegal/
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Q3. Does France carry out risk assessments to identify the sectors of activity (‘sensitive
sectors’) in which the illegal employment of TCNs is most concentrated?
First of all, it is important to recall that third-country nationals are not the target of inspections,
although they may be identified during the course of inspections carried out by officers.
Generally speaking, no specific methods or tools are used, largely because of the inspection
officers’ workloads. However, consideration is currently being given to identify methods of
optimal use of data, including discussions with the DNLF to better assess the risks and target
inspections. Within the General Directorate for Labour, the Labour Inspectorate Steering
Department is also conducting an experimental assessment of regional and national
inspections.54
Generally speaking, the inspections target certain identified sectors: construction, agriculture,
sales, hospitality and catering, security, transport, manufacturing and the entertainment
industry. The objectives of the inspections are specific to each region.
Social protection authorities and bodies are faced with new challenges, marked by increasingly
complex and sophisticated fraud which demand appropriate and concerted responses. In this
context, the National Anti-Fraud Delegation (Délégation nationale à la lutte contre la fraud)
has been entrusted with coordinating and supporting those fighting fraud to develop statistical
approaches aiming to strengthen the effectiveness of strategies to target inspections. This
approach55 is seen as an effective and innovative method of:
- improving how inspections are targeted, thus increasing the number of fraudulent
practices detected, addressed and resolved.
- more rapidly detecting fraud, notably the most complex cases, in order to halt the
financial impact they may have.
The DNLF has created a dedicated inter-Ministerial working group which brings together
financial authorities and social protection bodies. This group exchanges good practices and
discusses the pitfalls to be avoided when implementing this type of project. Several experiments
are currently under way within the financial authorities and social protection bodies.
Q4a. What are the strengths and weaknesses of prevention measures of illegally employed
TCNs in your France?
Since 2006, in response to the high number of foreign workers in France without legal
permission to reside and work in the country, laws were introduced to take preventative action
against the employment of foreigners without permits. In this way, Law No. 2006-911 of
24 July 2006 on immigration and integration introduced a pre-recruitment check to Article
L.5221-8 of the Labour Code. Employers must check with the authorities prior to recruitment
that the foreign worker has the right to reside and work in France. This provision, drafted as
follows, entered into force on 1 July 2007 following the publication of Decree No. 2007-801 of
11 May 2007:
54 Interview carried out with representatives of the Labour Inspectorate Steering Department within the DGT,
January 2017. 55 National Anti-Fraud Delegation (Délégation nationale à la lutte contre la fraude), Le “data mining”, une
démarche pour améliorer le ciblage des contrôles”, 14 January 2014.
http://www.economie.gouv.fr/files/files/DNLF/fichier_data_mining_joint.pdf
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“The employer must check with the competent regional authorities that the foreigner is
authorised to work in France, except if that foreigner is listed on the list of job seekers held by
the body mentioned in Article L.5312-1.”
The law established a mechanism obliging anyone employing foreign workers to check the
regularity of their situation with regards to the right to reside in France prior to recruitment and
to access the necessary information, thus giving greater legitimacy to the sanctions for those
who have not carried out these checks.
The Directive of 18 June 2009 places employers under the obligation to carry out a pre-
recruitment check on foreign nationals whom they wish to recruit and to inform the authorities
of the start of the period of employment (Article 4).
The weakness of the mechanism is that it is often confused with the DPAE which it must
precede. It is often only when they are controlled that employers realise this.
Another weakness which appeared recently is the emergence of identity fraud, which
encourages third-country nationals to use someone else’s documents.
The authorities made the comment that to this point, there was a gap in criminal law, which
failed to sanction the use of authentic documents belonging to a third party. Indeed, the offence
of identity fraud is poorly suited to this task (the concept of ‘damage to the identity of a third
party’) and the falsification and use of false documents or assisted irregular entry and residence
does not cover the person using the document. This new sanction was therefore developed in
the Law of 7 March 2016 on the rights of foreigners in France. It involves sanctioning “look
alike” fraud: Article 441-8 of the Criminal Code sanctions both the holder of the document who
facilitates its fraudulent use and the user themselves (“using an ID document or travel document
belonging to a third party, with or without their consent (...). If the holder of the ID or travel
document has knowingly facilitated the offence (…)”). This offence is punishable by five years
in prison and a €75,000 fine. Sentences increase to seven years’ imprisonment and a €100,000
fine if the offence is committed repeatedly.
Q4b. What good practices can be identified in France in the area of prevention of illegal
employment? What were the particular success factors with measures that can be
identified as good practices?
Several examples of good practice came to light during the interviews and questionnaires
carried out as part of this study:56
- The Advance Notification of Recruitment is considered as one of the main tools for
detecting illegal employment.
- The nominative social declaration (DSN) is another important tool to facilitate
investigations after an inspection.
- Several tools, such as the BTP card have recently been created to facilitate
inspections and to more effectively combat various forms of illegal employment.
56 This paragraph was prepared on the basis of interviews carried out with representatives of the Labour
Inspectorate Steering Department, the Office to Combat Illegal Employment and Identity Fraud (Bureau de la
Lutte contre le Travail Illégal et les Fraudes à l’Identité - BLTIFI) within the General Directorate for Foreigners
in France (DGEF) of the Ministry of the Interior, as well as the questionnaire completed by DIRECCTE Grand
Est.
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- The DNLF contributes towards promoting methods of optimal use of data to improve
how inspections are targeted and to detect fraud more efficiently. Part of this work
includes leading workshops to share good practice as regards detecting the fraudulent
use of public finances.
- Communicating information on sanctions for employers has a dissuasive effect on
potential fraudsters who are confronted with the risks they are taking.
- Awareness-raising meetings for companies help prevent situations where offences
might take place.
- Partnership agreements concluded on the national and local levels with various
occupational branches raise awareness in different sectors of the fight against illegal
employment.
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Section 3: Identification of illegal employment of TCNs
This section will aim to provide an overview of the various authorities involved in the
identification of TCNs working illegally, as well as to analyse how controls take place in
practice.
It is important to recall that no distinction is made between third-country nationals, national
workers and European workers: the aim of the controls is to check the employment situation.
Q5a. Which types of national authorities are responsible for identification of illegally
employed TCNs?
Three bodies are responsible for identifying offences relating to the employment of foreigners
not authorised to work:57
- labour inspectors (members of the labour inspectorate or employment controllers)
- agents and officers of the judicial police,
- officers of the general border directorate.
Article L.8271-17 of the Labour Code specifies that these departments can investigate and
identify “offences under the terms of Article L.8251-1 relating to the employment of a
foreigner not authorised to work and Article L.8251-2 forbidding the use of the services of
an employer of a foreigner not authorised to work”.
* In terms of identification methods, there are no differences between the two main categories
of third-country nationals analysed in this study.
** The three bodies responsible for identifying offences relating to the employment of a
foreigner not authorised to work are more broadly responsible for carrying out inspections
regarding all types of offences relating to illegal employment. Indeed, the fight against illegal
employment, which includes various offences under the terms of Article L.8211-1 of the Labour
Code58, involves eight inspection services:59
- labour inspectors (staff of the Labour Inspectorate or employment controllers),
- agents and officers of the judicial police,
- tax and borders agents,
- offices of social security bodies and the offices of the Mutualité Sociale Agricole which
are approved and sworn to do so,
- maritime affairs administrators, officers of the maritime affairs technical and
administrative corps and appointed civil servants within the departments carrying out
maritime affairs control missions under the authority or available to the Minister
responsible for the seas,
- civil servants in the civil aviation technical corps tasked and sworn in to this effect,
- civil servants or State officials responsible for inspecting terrestrial transport,
- officers working for Pôle Emploi who are responsible for preventing fraud, and who
are approved and sworn to do so.
57 Article L.8271-17 of the Labour Code. 58 Six offences fall under the term ‘illegal employment’: undeclared work, illegal subcontracting, illegal supply of
labour, employment of a foreigner not authorised to work, irregular combination of jobs, fraudulent or false
declarations. 59 Article L.8271-1-2 of the Labour Code.
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According to the 2013–2015 PNLTI implementation report, excluding the work of the law
enforcement agencies, the labour inspectorate carried out 34% of controls, URSSAF 30%, the
tax authorities 21%, the Mutualité Sociale Agricole (MSA) 10%, and the borders officers 2%.60
Q5b. Are there special authorities responsible for specific sectors? If yes, please describe.
No, there are no specific authorities which are responsible for specific sectors.
However, several authorities work with the labour inspectorate, in particular the DNLF, the
OCLTI, the border service, the tax services and the police. In terms of offences involving
organised groups, for example, the police are able to implement more elaborate monitoring
and surveillance resources.61
Q5c. With regard to labour inspectorates, do they have separate functions/departments
targeted to the detection of illegal employment of migrants from third countries?
No, labour inspectors have no functions or departments which are devoted to detecting the
illegal employment of third-country nationals.
The Labour Inspectorate is responsible for checking the application of labour legislation. It
does not, therefore, target third-country nationals, although they may be identified during
inspections.
Q5d. How do national authorities and other organisations involved cooperate? Are there
any specific cooperation mechanisms/fora in place in France? Is there any legal basis
specifying that authorities must cooperate, including a cooperation agreement or it is done
on an ad-hoc basis by authorities?
Officers responsible for labour inspections work alongside other services such as ACOSS,
URSSAF and the MSA. Agreements may be signed to strengthen this co-operation. Joint
inspection operations are prioritised by the PNLTI, which has set an objective that 25% of all
illegal employment controls will involve joint operations for the 2013-2015 period.
The 2016–2018 PNLTI62 also focussed on the intensification of joint controls. It states that
the share of illegal employment procedures resulting from joint operations in the priority sectors
represent 50% of all operations carried out in these sectors over the three years of the plan. The
plan thus sets the following two objectives, by sector:
- In the sectors which have been identified as priority sectors, joint controls by the
DGT, ACOSS, CCMSA and the Borders must represent, by the end of the national plan,
50% of operations carried out in the sectors of agriculture, transport, construction,
business services, hospitality and catering and the entertainment industry.
60 National Commission to Combat Illegal Employment, National Plan to Combat Illegal Employment (2016-
2018).
http://www.economie.gouv.fr/files/files/directions_services/dnlf/PNLTI_2016-2018.pdf 61 Interview carried out with representatives of the Labour Inspectorate Steering Department (Département du
pilotage du système d’inspection du travail) within the DGT, January 2017. 62 National Commission to Combat Illegal Employment, op. cit.
Page 30 of 78
- Across all professional sectors, the objective of 25% of joint controls (involving at
least two control services) is maintained, as was the case in the framework of the 2013–
2016 PNLTI.
The plan also pays particular attention to the need for a significant proportion of joint operations
to be conducted outside standard working hours (weekends, evenings, etc.).
In the sectors identified by the PNLTI as priorities for control
operations a third of controls carried out in 2013 and 2014 took place within the context of
joint operations, thus exceeding the objectives set by the 2013-2015 PNLTI. The analysis of
controls in the sectors identified by the PNLTI63 highlights that, in 2013, 33% of companies
controlled were inspected as part of the CODAF64 or an inter-authority partnership. The rate of
joint operations organised as part of a committee has varied, since 2006, between 20% and 24%.
It reached its highest level in 2013 (33%) and stabilised in 2014 (32.8%).
According to the 2013–2015 PNTLI report,65 procedures resulting from joint controls between
several authorities or inspection bodies represent more than one official report in four (27% in
2014), i.e. 2,047 controls (26% in 2013). The 25% objective of joint controls has been met and
the number of the procedures resulting from organised action in the context of CODAF now
represents two thirds of joint action.
The revision of Articles L.114-16-1 to L.114-16-3 of the Social Security Code empowers
authorised officers to share any information which may be useful to investigating offences
relating to illegal employment. This encourages effective collaboration between all the
authorities and bodies involved in fraud generated by undeclared work and helps address all
aspects of this crime: the criminal consequences, the civil and administrative consequences, and
also the tax and social effects of the non-payment of taxes, charges and social security
contributions.
Often, offences relating to the employment of foreigners without permission to work occur
in combination with the offence of undeclared work. Co-operation is, therefore, a source of
efficiency as regards dealing with all the offences recorded, particularly reinstating the rights
of foreign workers.
Thus, URSSAF control officers, who are not authorised to record the offence of employment
of a foreigner not authorised to work, may communication information about this offence to the
competent officers.
Similarly, since the law of 2 August 2005, officers of the General Directorate for Competition,
Consumer Affairs and Fraud (DGCCRF) may communicate information in their possession
about illegal employment to the relevant officers.
Finally, as part of the reform of the labour inspection system, a regional support and control
authority dedicated to combating illegal employment (URACTI) and a national authority,
the national monitoring, support and control group (GNVAC) have been created. Working
across the whole country, these two authorities aim to strengthen national and international
investigations and co-operation, which is required to address increasingly complex cases. These
63 General Directorate for Labour, Bilan des contrôles dans les secteurs prioritaires identifiés par le plan national
de lutte contre le travail illégal en 2014, February 2016. 64 In other words, controls carried out by at least two distinct authorities, for example URSSAF and the labour
inspectorate. 65 National Commission to Combat Illegal Employment, op. cit.
Page 31 of 78
authorities form an integral part of the inter-institutional organisation of the fight against the
fraudulent use of public money.66
Co-operation may take place around specific themes. An agreement was signed on
29 March 2016 between the General Directorate for the National Gendarmerie (Direction
générale de la Gendarmerie nationale) and the General Directorate for Labour. It defines
cooperation methods to fight against illegal employment and trafficking in human beings and aims to develop operational exchanges between the gendarmerie and the Labour
Inspectorate.
The DGT analytical report on fines for illegal employment highlights the challenges and good
practices of joint operations.67 Joint controls aim to involve a large number of officers, which
facilitates effective controls of all individuals in open areas such as building sites or buildings
or agricultural fields, or in public spaces such as discotheques or shows. The presence of the
law enforcement bodies means that the perimeter can be secured and makes it easier to contain
people who may be tempted to flee the premises. Joint controls also mean that field work and
paper work about the same company can be more easily combined. Finally, it means that the
authorities’ missions, powers and skills can be pooled.
However, joint controls present the inconvenience of complicating how inspections are
organised, due to the number of authorities involved. This can cause delays, additional costs
and increases the risk of leaks. The DGT report specifies that joint controls must meet precise
procedural rules, particularly for officers of the judicial police, in line with the Code on
Criminal Procedure. It also states that failure to do so may invalidate the process due to non-
compliance. Particularly in the context of operations to combat the illegal employment of
foreigners not authorised to work, the risk of confusion between the immigration police and
those working to combat illegal employment demands that roles are defined in advance and that
professional identities are respected, in line with the Circular of 20 December 2006 on the role
of the Labour Inspectorate in combating the employment of foreigners without work permits
and undeclared work.
Departmental operational anti-fraud committees (CODAFs): regional co-ordination
aiming to improve the effectiveness of the fight against fraud.
Local committees to fight the fraudulent use of public funds were created as part of a pilot
scheme by the Decree of 18 April 2008 (modified),68 at the same time as the creation of the
DNLF. In March 2010, at the end of the pilot period, the departmental operational anti-fraud
committees (CODAF) were created. They succeeded the operational committees to combat
illegal employment (COLTI), given that these were ineffective. The work of the CODAFs is
led by the DNLF. Their remit involves addressing social, taxation and border fraud, and
illegal employment. The ongoing work of the DNLF in terms of coordinating the anti-fraud
work of the authorities and social security bodies has also enabled them to be involved, and
results have greatly improved since the creation of this new delegation in 2008.
66 Interview with representatives of the DNLF, January 2017. 67General Directorate for Labour, Analyse de la verbalisation du travail illégal en 2014, op.cit.. 68 Decree No. 2008-371 of 18 April 2008 on the co-ordination of the fight against fraud and creating a national
delegation to fight against fraud.
https://www.legifrance.gouv.fr/affichTexte.do?cidTexte=JORFTEXT000018663877
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The fight against illegal employment involves eight control services,69 covering the various
forms of fraud which exist. The involvement of these officers requires regional co-ordination,
represented by the departmental operational anti-fraud committees (CODAFs).
Under the joint leadership of the Prefect of the department and the public prosecutor of
the administrative centre of the department, the CODAFs bring together government
authorities (police, gendarmerie, prefectoral, taxation, border and labour administrative
services) and local social protection bodies (Pôle Emploi, URSSAF, family benefit offices,
health and retirement insurance bodies, the independent workers’ insurance body
(RSI), the Mutualité Sociale Agricole (MSA), to co-ordinate an overarching and
concerted response to the phenomenon of fraud, whether involving compulsory
contributions or social services.
The CODAFs are responsible for improving mutual understanding between the services,
organising joint field operations (with two or more partners), offering training and sharing
experiences in order to improve the effectiveness of the fight against fraud. The CODAFs
make it possible to exchange information between partners with a view to identifying cases
of fraud.
The revision of Articles L.114-16-1 to L. 114-16-3 of the Social Security Code enabled the
CODAFs to be included in information exchanges between government officers and the
social security authorities in “missions to research and identify social security fraud” as
well as “recovering contributions, charges and social benefits which have been unduly paid
out”.
According to the 2013–2015 PNLTI report70, the number of procedures resulting from
joined-up action in the context of CODAF now represents two thirds of joint action.
The 2016–2018 PNLTI71 picks up the objective of the previous plan on organising joint
operations within the CODAFs in order to combat the illegal employment of third-country
nationals.
With regards to the judicial police, operational coordination is ensured by two central offices:
- The Central Office to Counter Illegal Employment (Office central de lutte contre le
travail illégal) (OCLTI), created by Decree No. 2005-455 of 12 May 2005 under the
auspices of the national gendarmerie, one of whose missions is to lead and co-ordinate
on the national and operational level, judicial police investigations relating to illegal
employment offences. It also plays an intermediary role in international police co-
operation.
- The Central Office for the Suppression of Unauthorised Immigration and the
Employment of Foreigners without Residence Permits (Office Central pour la
Répression de l'Immigration irrégulière et de l'Emploi d'étrangers Sans Titre)
(OCRIEST), created by Decree No. 96-691 of 6 August 1996 under the auspices of the
national police (Central Directorate of the French Border Police (Direction Centrale de
la Police aux Frontières – DCPAF)) which is responsible for leading and coordinating
69 Article L.8271-1-2 of the Labour Code. 70 National Commission to Combat Illegal Employment, op. cit. 71 National Commission to Combat Illegal Employment, op. cit.
Page 33 of 78
the operational and national fight against those responsible for offences linked with
irregular immigration and employment.
The DNLF report72 stresses that the use of different co-operation channels, whether it be
administrative or police co-operation, through the DGT, Interpol and Europol, is essential for
investigatory work, particularly in the case of the fraudulent cross-border posting of workers
and trafficking in human beings. The International Relations Group (GRI) of the Central
Office to Counter Illegal Employment (OCLTI) also participates in the work of various
networks and inter-Ministerial working groups.
Q5e. Please provide statistics on the number of staff/inspectors involved in
identification/inspections on illegal employment per authority and if available, per sector
for 2015 (or if not available for latest available year). Please specify if the staff is
specifically dedicated to identifying illegally employed TCNs or are involved in general
checks on illegal employment.
There are currently 2,200 labour inspectors on the ground and each inspector covers around
8,500 employees. The Labour Inspectorate Steering Department (DPSIT) is responsible for
leading the network of labour inspectors.73
The Labour Inspectorate is a department of the DIRECCTEs (regional department of the
Ministry of Labour). Labour inspections are organised in each DIRECCTE into inspection
units. In addition to the 232 inspection units, 28 units have a regional remit to fight illegal
employment. This involves officers specialising in combating illegal employment who may
intervene on the regional level. If the situation appears to be too complex, they turn to the
national group.
The network of labour inspectors thus consists of:
- on the regional level: 120 staff specialising in large scale operations;
- on the national level: around ten staff;
- on the international level: each Member State has a liaison bureau, created under the
Posted Workers Directive.74 In France, the bureau falls within the DGT. When
inspectors need information from the country of origin, they contact the liaison bureau,
which passes on the request to the competent department in the country of origin.
Reform of the organisation of the labour inspection system.75
The reform of the organisation of the labour inspection system came into force on 1 January
2015. A regional unit to support and control the fight against illegal employment was
created on each regional level of DIRECCTE, in order to provide expertise and to carry out
inspections in close partnership with the new regional control units.
A national monitoring, support and control group consisting of labour inspectors was also
established in 2015. This group may intervene across the country, either alone or with
regionally competent agents to manage or support operations. The labour inspectorate thus
72 DNLF, Lutte contre la fraude, Bilan 2015, op. cit. 73 Interview with representatives of the DPSIT, January 2017. 74 Directive 96/71/EC of the European Parliament and of the Council of 16 December 1996 concerning the posting
of workers in the framework of the provision of services.
http://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:31996L0071&from=en 75 National Commission to Combat Illegal Employment, op. cit.
Page 34 of 78
now has the resources to coordinate and lead investigations and controls and to centralise and
share useful information on companies operating across the country. These units, all
dedicated to combating illegal employment, have strongly contributed to improving the
professional standards of labour inspectors and have led to better coordination across
departments.
Simultaneously, the plan to transform the work of the labour inspectors has led to training
250 inspectors over ten months, i.e. 12% of inspectors.
Q6. What identification measures regarding illegal employment of TCNs exist in France?
(e.g. inspections; border checks; checks of premises by migration officials; other types of
checks) Please describe.
(See also below).
Illegal employment is identified on the basis of inspections carried out by eight inspection
bodies. The offence of employing a foreigner who is not authorised to work may be reported
by three inspection bodies. This work is also based on interdepartmental co-operation.
Faced with increasingly complex fraud, the various control services have strengthened their
information exchange networks, organised joint inspections and developed more
intervention strategies which are better targeted to each situation.76
Q7. How are inspections carried out in France?
Q7a. What methods are used for selecting/sampling employers to be inspected (targeted
labour inspections to specific sectors/categories of TCNs)?
On the national level, the PNLTI identifies sectors connected with the various forms of illegal
employment and targets priority sectors (agriculture, hospitality and catering, construction,
business services, and live and recorded entertainment) depending on identified needs.
The objectives of the national plan are then rolled out on the regional level. The 2016–2018
PNLTI77 specified that a guidance note from the Prefect of the region on fighting illegal
employment would define the strategic focuses for the control services in each region and for
the duration of the national plan, cross-referencing the priority sectors and control themes. This
note will be one of the elements of the reference framework for the action plans of each control
service, the coordinated work of the CODAFs, and the preventive, awareness-raising and
communication work of services responsible for combating illegal employment. It is drafted by
the Prefect of the region, in partnership with the DIRECCTE, all public prosecutors, and the
various services involved, including URSSAF, the MSA, the gendarmerie and the national
police, etc.
By targeting actions on the regional scale, all services involved can exchange information to
better identify the phenomenon of illegal employment in their region, thus defining the
objectives more precisely and appropriately.
For example, at a meeting on 13 March 2017, the Prefect of the region of Brittany presented a
guidance note to the authorities and other partners, as a point of reference for the action plans,
divided up by authority in partnership with the public prosecutors for 2017 and 2018. Set within 76 National Commission to Combat Illegal Employment, op. cit. 77 Idem
Page 35 of 78
the PNLTI, this note more specifically targets complex fraud, indecent living conditions,
trafficking in human beings and the illegal employment of foreigners.78
Q7b. How are inspections planned? Are they based on the results of a risk assessment?
Workplace inspections in companies or on building sites are most often carried out as part of
the action plan defined in the national or regional plan. The DIRECCTEs, which lead the labour
inspections, organise meetings to define local priorities with the Prefect, the public prosecutor
and local authorities.
Inspectors do not have quantitative objectives, insofar as some more complex investigations
may last longer. They have significant autonomy and may, in particular, conduct any actions
they wish.79
Pursuant to Article L.8112-1 of the Labour Code, labour inspectors are involved in defining
joint directions and priorities of general interest for the labour inspection systems, decreed
each year by the Minister for Labour after consultation with trades unions and employers’
organisations. They also contribute to their implementation.
They are free to organise and conduct inspections on their own initiative and to decide upon
follow-up action.
Q7c. Could inspections be triggered by reporting/signals from (a) the general public (e.g.
whistleblowers) and (b) from illegally employed TCNs? Is there a hotline established to
signal illegal employment cases? If yes, please describe.
According to the Labour Inspectorate Steering Department, whistleblowing is possible, but
remains relatively rare and is not always well-founded.
There are two methods of contacting the labour inspectorate: by telephone or by email. Contact
details are available on the Ministry’s website. It is also possible to call the labour information
service. A single telephone number is planned for the labour information service, which will be
publicly available. For the time-being, there is no hotline for illegal employment.80
Q7d. Which authorities (a) decide on carrying out the inspections and (b) carry out the
inspections?
See earlier answers.
Analysis of fines for illegal employment show the gendarmerie is the leading enforcing
authority, filing 28% of reports. The Labour Inspectorate, which filed 24% of procedures is
the enforcing authority with the second largest number of official reports. URSSAF and the
police both filed 22%.81
78 Press release from the Prefecture of Brittany, Lutter contre le travail illégal et le détachement frauduleux : l’État,
les organismes sociaux et les acteurs économiques se mobilisent, 13 March 2017.
http://www.prefectures-
regions.gouv.fr/bretagne/content/download/31970/217387/file/Communiqué%20Presse%20reunion%20LTI_13
mars_validé.pdf 79 Interview with representatives of the DPSIT, January 2017. 80 Interview carried out with representatives of the Labour Inspectorate Steering Department within the DGT,
January 2017. 81 General Directorate for Labour, Analyse de la verbalisation du travail illégal en 2014, op.cit.
Page 36 of 78
Nearly two thirds of control procedures are launched on the initiative of inspectors (64% in
2014, this figure had been stable since 2003). Twelve percent of procedures stem from a tip-
off, such as a complaint, a whistle-blower or information from another department.82
Q7e. Which elements are checked? (e.g. checking employees residence and/or employment
permits or inspecting employer records (payslips, contracts of employment etc)83
The Law of 16 June 2011 on immigration, integration and nationality84 extended inspectors’
remits in terms of identifying offences of undeclared work to offences of foreigners not
authorised to work (Labour Code, Article L.8271-2 and following). Their remit in terms of
checks includes the communication of documents (Article L.8271-9 of the Labour Code),
hearings (Article L.8271-6 of the Labour Code), on-site inspections (Article L.827-13 of the
Labour Code), and checking the identity of individuals (Articles L.8112-1 and L.8112-2 of
the Labour Code).
All items connected with the employee’s file are checked. During their visit, labour inspectors
may request to see all books, registers and documents which are required by the Labour
Code or by a legal provision relating to employment (Article L.8113-4 of the Labour Code),
including the single staff register, the payroll book, the register of staff representatives, files
recording working hours, recruitment declarations, employment contracts and employees’
payslips, etc.
In addition to checking documents, labour inspectors may question employees of the company
and meet with staff representatives to ask them about working conditions. They may also
consult three databases:
- AGDREF (management software for files on foreign nationals in France - Application
de gestion des dossiers des ressortissants étrangers en France)85.
- DPAE (the Advance Notification of Recruitment): this is the main database which is
consulted, with the exception of posted workers, who are covered by an online
declaration.
- SIPSI (Information system on international service provision - Système d'information
sur les prestations de service internationales): this posting declaration must be made by
the employer, before the work begins, to the regional DIRECCTE unit of the place
where the service will be carried out.
With regards to third country nationals, the questions asked by the inspector in charge of the
control relate to their identity, their situation and whether or not they hold authorisation to work
and a residence permit, the length of residence in France and length of employment with the
company. The officer also aims to obtain information connected with the employee’s rights,
such as whether they are declared, in possession of an employment contract, receive a salary
and pay slips, number of hours worked, respect for working conditions, etc.
In order to cross-check this information, the same questions are then asked of the employer.
82 Idem 83 Idem 84 Law No. 2007-672 of 16 June 2011 on immigration, integration and nationality.
https://www.legifrance.gouv.fr/affichTexte.do?cidTexte=JORFTEXT000024191380&dateTexte=&categorieLie
n=id 85 The management software for files on foreign nationals in France was established in 1993 (Decree of
29 March 1993). Depending on their level of authorisation, it allows users in prefectures and central government
to manage and consult individual files in shared information bases.
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The newly-created BTP card (see Q1c), which includes information on the employee and his
or her employer, facilitates on-site checks, due to an automatic information processing system
and a flashcode reader.
Q7f. What are the entry/search powers of inspectorates? Do labour inspectorates
cooperate with the police/other law enforcement authorities while carrying out
inspections? If yes, are cases of illegal employment of TCNs/exploitation automatically
reported to police/law enforcement authorities?
Pursuant to Article L.8112-1 of the Labour Code, labour inspectors are guaranteed to be
independent in the course of their work in the sense of international agreements on labour
inspections. They are responsible for monitoring application of the provisions of the Labour
Code and other legal provisions relating to the employment regime, as well as requirements in
collective labour conventions and agreements. Alongside judicial police officers and agents,
they are also responsible for reporting violations of these provisions and requirements.
Labour inspectors have a right of entry, both day and night, to any establishment or workplace
where the provisions of the Labour Code apply, with the exception of inhabited premises, which
they may only enter with the authorisation of the individuals living there (Article L.8113-1 of
the Labour Code).
In contrast to police officers who must obtain a warrant, labour inspectors do not need
authorisation to enter company premises. Their remit covers the entire Labour Code and
have fairly wide ranging powers. They are independent of any external influence in the course
of their work, and the Prefect has no authority over labour inspections.
However, they do not hold any judicial power and may not carry out searches, a task which
falls to officers of the judicial police.86
See also question Q5d on cooperation between labour inspectors and the police.
Q7g. How often are inspections carried out in different sectors? Are inspections conducted
at random intervals? If so, please give an indication of time between visits.
In 2014, 7,630 official reports relating to illegal employment were recorded by the services
responsible for combating illegal employment, compared to 9,050 in 2013, i.e. a reduction of
16%. The DGT report specifies that this figure does not reflect a drop in inspections but is
explained by several factors, in particular by the increasingly complex nature of the cases
being treated, which makes them more difficult and takes longer to process.87
Some complex investigations may, therefore, last longer. Moreover, it should be noted that 250
controllers, i.e. 10% of the total number of staff, are in training for ten months of each year,
which reduces inspection capacity.
The average time it takes to create an official report is around five months making a total
duration of more than a million days.88 The number of days spent creating official reports for
each procedure clearly stresses the variety of cases, ranging from less than ten days for 14% of
86 Interview carried out with representatives of the Labour Inspectorate Steering Department within the DGT,
January 2017. 87 General Directorate for Labour, Analyse de la verbalisation du travail illégal en 2014, op.cit. 88 Idem
Page 38 of 78
procedures to more than a year for 9% of them. In 2014, the average time it took to prepare an
official report was 149 days. Three procedures out of every four are completed within six
months of the first official report. Slightly fewer than one procedure in two is completed within
two months of the first official report (42%), and 14% take less than ten days. Nearly a third
last between two and six months.89
Q7h. How are inspections carried out (e.g. on-sight inspections/controls; interviewing and
checking workers)?
See answers below.
Labour inspectors carry out on-site visits and analyse files. They may also request information,
including from their European counterparts through the liaison bureaux (notably when it comes
to the fraudulent posting of workers).
If an officer identifies a third-country national during an inspection, they apply the regulations
by first of all checking their work permit. If the employee does not hold a work permit, it is the
employer who is sanctioned for this offence. An official report is sent to the public
prosecutor.90
The Law on Finances 201291 introduced new provisions on the transfer of official reports
mentioning offences relating to illegal employment:
- Inspectors mentioned in Article L.8271-1-2 of the Labour Code, who are authorised
to report illegal employment offences, submit a copy of their official report to the
government representative in the Department so that they can apply the
administrative sanctions set out in Articles L.8272-1 to L.8272-4 of the Labour Code;
- Inspectors mentioned in Article L.8271-17, who are authorised to report the illegal
employment of foreigners, send a copy of their official report to the Director
General of the French Office for Immigration and Integration (Office Français de
l'Immigration et de l'Intégration) (OFII) to enable the special contribution (Article
L.8253-1 of the Labour Code) and the compulsory contribution to be collected (Article
L.626-1 of the Code on Entry and Residence of Foreigners and Right of Asylum
(CESEDA)).
Q8. What technical tools and methods are in use for identification of illegal employment
of TCNs (e.g. planning maps, criteria to select enterprises, manuals, operational
guidelines, checklists and scripts for interviews, visit protocols and visit follow up
procedures)?
See earlier answers.
Q9.92 What are the strengths and weaknesses of identification measures of illegally
employed TCNs in France? What good practices can be identified in France in the area
89 General Directorate for Labour, Analyse de la verbalisation du travail illégal en 2014, op.cit. 90 Interview carried out with representatives of the Labour Inspectorate Steering Department within the DGT,
January 2017. 91 Law No. 2011-1977 of 28 December 2011 on finances for 2012
https://www.legifrance.gouv.fr/affichTexte.do?cidTexte=JORFTEXT000025044460&categorieLien=id 92 This paragraph was prepared on the basis of interviews carried out with representatives of the Labour
Inspectorate Steering Department (DPSIT) and representatives of the DNLF in January 2017, as well as
Page 39 of 78
of identification of illegal employment? What were the particular success factors with
measures that can be identified as good practices?
Illegal employment is a phenomenon which cannot, by definition, be completely controlled.
Several challenges were identified by the stakeholders questioned as part of this study:
- The increasing complexity and rapid evolution of fraud, added to the volatility of
certain companies, which makes controls more difficult and requires constant
adaptation and longer investigative work from agents, the development of new tools,
monitoring new types of fraud, and strengthening co-operation between actors to fight
effectively against this phenomenon;
- The financial issue, which represents significant losses in terms of social security
contributions and taxes;
- The significant effort by the services involved to adapt to the large number of reforms
and new legal texts in recent years.
A certain number of good practices can be highlighted with regard to analyses carried out by
the DGT and interviews conducted as part of this study:
- The role of the CODAFs which strengthen the work to combat fraud on the local level.
- Strengthening co-operative work between the various services in question, which
encourages better operational skills and exchanges of good practice.
- The strengthening of sanctions, both administrative and criminal, which can have a
direct impact and create a dissuasive effect.
- Changes in terms of how labour inspections are organised, with the creation of
regional and national teams, aiming to strengthen investigative and co-operative
missions and to more effectively combat complex fraud.
The DGT report93 stresses the importance of inter-departmental co-operation
- During inspections: co-operation between the authorities encourages greater variety
of interventions and a wider range of stakeholders. It means that work involving a
significant number of stakeholders can be managed within sometimes short timescales.
It also enables the scope of the investigation to be extended, and the time periods and
number of companies inspected at the same time to be extended.
- Either before or after inspections: joined-up working increases research opportunities
and investigations and, consequently, improves how controls are targeted. It makes
collecting social contributions more efficient. The complexity of fraudulent situations
increasingly requires the coordinated intervention of several inspection bodies with
different but complementary remits and methods.
- These inspections have a pedagogical and dissuasive effect on the professionals being
controlled. The regional daily press is often involved in revealing large-scale
operations and has a dissuasive effect on fraudulent behaviour.
questionnaires completed by the DIRECCTEs of Auvergne-Rhône-Alpes, Grand Est and Hauts-de-France, in
March 2017. 93 General Directorate for Labour, Bilan des contrôles dans les secteurs prioritaires identifiés par le plan national
de lutte contre le travail illégal en 2014, February 2016.
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Review94 of inspections carried out in priority sectors identified by the PNLTI95
In 2014, 57,300 establishments in priority sectors identified by the PNLTI were controlled,
compared to nearly 66,000 in 2013. The construction sector concentrated 38% of controls,
the hospitality and catering sector 25%, and agriculture, 18%.
Of these controls, more than 18,800 company checks were carried out as part of a joint
operation between several control bodies, i.e. more than a third of controls. In 2014, 28%
of these joint inspections were carried out in the construction sector, 28% in hospitality and
catering and 26% in the agricultural sector. The PNLTI report highlighted the increase in
skills resulting from these partnerships, in terms of operating methods, exchanges of good
practice, and the implementation of awareness-raising and preventive campaigns targeting
economic actors on the risks of illegal employment.
17.6% of all companies inspected were found to be in breach of the legislation (i.e.
10,100 companies). This percentage remains stable compared to previous years (18.8% in
2013 and 18.7% in 2012).
The report stresses the variety of offences and fraudulent organisations which were
observed. In 2014, the main offence which was identified in priority sectors by the PNLTI
was in relation to undeclared work (83% of reports), followed by the unlawful supply of
labour and sub-contracting (13%), and employing foreign workers without
authorisation (4%). There has, therefore, been a reduction in the offence of employing
foreign workers without authorisation, which represented 7% of cases in 2013.
94 Idem 95 The review of inspections in the priority sectors identified by the PNLTI covers the inspection activities of the
various authorities involved in combating illegal employment (with the exception of the police and the
gendarmerie). It was prepared on the basis of an analysis table sent to each departmental service which consolidates
the activity indicators for the department for which it is responsible.
Page 41 of 78
Section 4: Sanctions for employers
The aim of this section is to map the types of sanctions for employers which are found to be
illegally employing TCNs. In addition, any good practices will also be presented.
Q10. For each of the listed sanctions, please elaborate whether this type of sanction is
imposed in France (Yes/No) and if Yes, please describe in which cases are these sanctions
applied.
Sanctions for
employers
Irregularly staying and illegally
working TCNs.
Regularly staying and
illegally working TCNs.
Fines YES
There are fines for natural and legal persons:
- For undeclared work (intentional non-declaration of all or
part of a salaried job, as well as false statuses: false interns,
etc.; intentional evasion of declarations relating to salaries
and social contributions);
- For unlawfully suppling and sub-contracting labour;
- For illegally employing a foreigner.
See the summary table below.
Articles L.8251-1 and following and L.8253-1 and following of the
Labour Code impose a fine on employers employing a foreigner
who is not authorised to work in France.
The special contribution Articles L.8251-1 and following and
L.8253-1 and following of the Labour Code) and the fixed
contribution for returning the foreigner to their country of
origin (Article L.626-1 of the CESEDA) are imposed on employers
who have directly or indirectly employed a foreigner not authorised
to work in France or in an irregular situation with regards to
residence.
These fines can be applied as many times as there are foreigners in
an irregular situation.
See description below
Imprisonment of
employers
YES
Sentences of imprisonment exist for natural persons:
- For undeclared work (intentional non-declaration of all or
part of a salaried job, as well as false statuses: false interns,
etc.; intentional evasion of declarations relating to salaries
and social contributions);
- For unlawfully supplying and sub-contracting labour
- For illegally employing a foreigner.
(Articles L.5224-1 to L.5224-4 and L.8256-1 to L.8256-8 of the
Labour Code - See summary table below)
Confiscation of
financial gains
Article L.8256-5 of the Labour Code provides for the confiscation
of all or part of property, regardless of its nature.
Page 42 of 78
Ineligibility for public
contracts
YES
When the administrative authority becomes aware of a procedure
relating to an offence set out in paragraphs 1 to 4 of Article L.8211-
196 of the Labour Code or of an official report prepared by one of
the inspectors mentioned in article L.8271-1-297 of the Labour
Code, reporting a breach set out in the same paragraphs 1 to 4, it
may, if the proportion of employees so justifies, in light of the
repetition or seriousness of the alleged facts, make an order setting
out the grounds for the business to be closed for having committed
the offence. This closure is temporary and has a duration not
exceeding three months.
This decision to temporarily close the business does not lead to
the breach or suspension of the employment contract, nor any
financial prejudice towards the employees of the business.
(Articles L.8272-2 and R.8272-7 to R.8272-9 of the Labour Code)
In the same situation and for the same offences, the administrative
authority may make an order setting out the grounds for the person
who committed the offence to be excluded from administrative
contracts mentioned in Articles L.551-1 and L.551-5 of the
Administrative Justice Code, for a duration not exceeding six
months. (Articles L.8272-4 and R.8272-10 and R.8272-11 of the Labour
Code)
Non-compliance with the administrative decisions mentioned above
is punishable by two months’ imprisonment and a fine of €3,750.
Moreover, Articles L.8256-3 and L.8256-4 of the Labour Code set
out additional punishments for natural persons found guilty of
having, directly or through an intermediary, hired, kept in service or
employment, a foreigner who does not hold a permit authorising
them to work in France:
- banned from exercising the professional activity for
which the offence was committed for a period of no more
than five years;
- excluded from public tenders for a period of no more than
five years;
- confiscation of objects which were directly or indirectly
used to commit the offence;
- closing of premises or establishments held or operated by
these persons.
Temporary or definitive
closure of the company
or work site.
Confiscation of
equipment/property
YES
- See above for natural persons found guilty of having hired,
retained in service or employment a foreigner not authorised
to work.
- For legal persons sentenced when an offence has been
committed in an organised gang (3rd paragraph of Article
96 Undeclared work, sub-contracting, unlawful supply of labour, employing a foreigner without permission to
work. 97 Labour inspectors and controllers, officers and agents of the judicial police, etc.
Page 43 of 78
L.8256-3), some or all of their property may also be
confiscated, regardless of its nature (Article L.8256-8).
Suspension of activity YES
See above
Withdrawing of trading
licence / disbarment of
activity
YES
See above
Withdrawal of
residence permit if the
employer is a TCN
YES
The residence permit may be withdrawn from any employer
(natural person) who has employed a foreign worker in violation of
the provisions of the Labour Code (Article L.314-6 of CESEDA).
Article L.8256-3 of the Labour Code states that natural persons
found guilty of having directly or through an intermediary, hired,
retained the services of or employed a foreigner not authorised to
work in France, may be banned from residence for a maximum
period of five years.
Other sanctions Refusal and reimbursement of public assistance
If the competence authority is aware of an official report relating to
one of the offences which constitutes illegal employment, it may,
according to the seriousness of the circumstances, the nature of the
assistance requested and the advantages which the employer has
gained, refuse to grant, for a maximum period of five years, certain
public assistance relating to employment, professional training, and
culture from the person who is the subject of the official report.
(Articles D.8272-3 and D.8272-4 of the Labour Code)
Furthermore, this decision to refuse public assistance does not
prejudice any legal procedures which may lead to criminal
sanctions.
The administrative authority may also request, in light of the criteria
mentioned above, the reimbursement of all or part of the same
public assistance granted during the twelve months preceding the
establishment of the report noting the offence.
(Articles D.8272-5 and D.8272-6 of the Labour Code)
Non-compliance with this administrative decision is punishable by
two months’ imprisonment and a fine of €3,750.
This concerns the following provisions: apprenticeship contracts,
“single integration contracts”, professional development contracts,
assistance and support grants for the creation, production and
broadcast of live and recorded entertainment.
If the company or its legal or actual manager has been the subject
of a report in the twelve months preceding the request for assistance,
the competent authority may decide to refuse the application for
assistance.
Cancellation of certain measures to reduce or exempt the
employer from social security contributions in the event of
undeclared work
Benefiting in any way from a total or partial reduction or exemption
from social security contributions or contributions due to social
security bodies, applied by an employer or independent worker, is
subject to the employer or independent worker complying with the
Page 44 of 78
provisions of Article L.8221-1 of the Labour Code prohibiting
totally or partially undeclared work (undeclared paid employment -
lack of a prior declaration of recruitment, lack of pay slip, etc. - or
undeclared activity, as defined above).
When the offence of undeclared employment or undeclared activity
is reported, the collection agency (generally the URSSAF to which
the employer belongs) proceeds, within the limits of the applicable
provisions relating to undeclared work (i.e. five years), to cancel
reductions or exemptions from the dues or contributions mentioned
above.
(Article L.133-4-2 of the Social Security Code)
Moreover, the offence defined in Articles L.8221-3 (undeclared
work through undeclared activity) and L. 8221-5 (undeclared work
through undeclared employment) of the Labour Code leads to the
cancellation of exemptions and reductions in social dues and
contributions applicable to wages paid to employees employed by
the contractor for each month in which the official reports states that
he or she was involved in undeclared work as an accomplice to the
sub-contractor, from the time at which the report is made.
Article 131-26 of the Criminal Code (L.8256-3 of the Labour Code)
mentions the ban on civic, civil and family rights.
Page 45 of 78
List of criminal sanctions:98
Criminal sanctions
Undeclared work
Unlawfully supplying
and sub-contracting
labour
Irregular
employment of
foreigners
Natural
persons
Three years’ imprisonment
and a fine of €45,000.
In the event of undeclared
employment of a minor
subject to compulsory
education, the sanctions are
five years’ imprisonment
and a €75,000 fine.
When the offences are
committed in relation to
several persons or a person
whose vulnerability or state
of dependency are apparent
or known to the author, the
sanctions are five years’
imprisonment and a fine of
€75,000.
Being unaware of the bans
defined in paragraphs 1 and
3 of the Article by
committing offences in an
organised gang99 is
punishable by ten years’
imprisonment and a
€100,000 fine (L.8256-2).
Furthermore, where
applicable, additional
sanctions mentioned in
Article L.8224-3 of the
Labour Code
Two years’
imprisonment and a fine
of €30,000.
Sentences rise to five
years’ imprisonment and
€75,000 fine:
1. When the offence is
committed towards
several people;
2. When the offence is
committed towards a
person whose
vulnerability or state of
dependence is apparent
or known to the author.
Sentences are increased
to ten years’
imprisonment and
€100,000 fine when the
offence is committed in
an organised gang.
Furthermore, where
applicable, additional
sanctions mentioned in
Article L.8234-1 of the
Labour Code (illegal
sub-contracting) and
L.8243-1 (unlawful
supply of labour)
Five years’
imprisonment and a
fine of €15,000 (per
foreigner) (1).
These same sentences
apply to persons who
have knowingly,
directly or indirectly,
used the services of an
employer without a
permit (L.8256-2).
Sentences rise to five
years’ imprisonment
and €75,000 fine:
1. When the offence is
committed towards
several people;
2. When the offence is
committed towards a
person whose
vulnerability or state of
dependence is apparent
or known to the author.
Sentences are
increased to ten years’
imprisonment and
€100,000 fine when
the offence is
committed in an
organised gang.
Furthermore, where
applicable, additional
sanctions mentioned in
Articles L.8256-3 and
L.8256-5 of the Labour
Code.
98 Source: General Directorate for Labour
http://travail-emploi.gouv.fr/droit-du-travail/lutte-contre-le-travail-illegal/article/les-sanctions-liees-au-travail-
illegal 99 Articles L.8256-2 and L.8256-7 of the Labour Code
Page 46 of 78
Criminal sanctions
Undeclared work
Unlawfully supplying
and sub-contracting
labour
Irregular
employment of
foreigners
Legal
persons
€225,000 fine €150,000 fine €75,000 fine
Furthermore, where
applicable, the sanctions
mentioned in paragraphs 1
to 5, 8 and 9 of Article 131-
39 of the Criminal Code (2)
Furthermore, where
applicable, the sanctions
mentioned in paragraphs
1 to 5, 8 and 9 of Article
131-39 of the Criminal
Code (2)
Furthermore, where
applicable, the
sanctions mentioned in
paragraphs 1 to 5, 8
and 9 of Article 131-39
of the Criminal Code
(2)
(1) This sanction is not applicable to employers who, on the basis of a fraudulent permit or permit
presented fraudulently by a foreign employee, has completed, without having the intention to participate
in the fraud and without knowledge of it when declaring it to the social security bodies mentioned in
Article L.1221-10 of the Labour Code, the single recruitment declaration (DUE - since 1 August 2011,
the DUE has been merged with the “Advance Notification of Recruitment” - DPAE - as part of a
renewed DPAE) and when checking with the competent regional administrations authorising this
foreigner to carry out paid employment in France.
(2) Issuing the additional sanction of the temporary closure of the establishment mentioned in
paragraph 4 of Article 131-39 of the Criminal Code will not lead to the breach nor suspension of the
employment contract, nor to any financial prejudice for the employees of the establishment in question.
Special contribution and fixed contribution
With regards to the fight against irregular immigration, OFII contributes to combating the
employment of foreigners not authorised to work. The Finances Law of 2011 entrusted
OFII with recording and collecting special and fixed contributions representing the
costs of returning the foreigner to their country of origin. These are two financial,
administrative sanctions which may be imposed upon an employer, either a natural or legal
person, of a foreign national not holding a work permit. These fines are based on an official
report prepared by the officers authorised to report the offence of employing
foreigners not authorised to work (Article L.8251-1 of the Labour Code) and differ from
one another in relation to the administrative situation of the foreign national:
- the special contribution applies to employers who employ foreign workers
without a work permit, enabling them to undertake paid work in France;
- the fixed contribution applies to employers who employ foreign nationals without
any residence permit and who are, hence in an irregular situation.
In addition to any legal proceedings which may be filed, employers who employ a foreigner
without a work permit are liable to pay a special contribution set out in Article L.8253-1
of the Labour Code and, where appropriate, a fixed contribution representing the costs
Page 47 of 78
of returning the foreigner to their country of origin, set out in Article L.626-1 of
CESEDA, when the employee is also in an irregular situation with regards to residency.
Offences are recorded by the inspection body (labour inspectorate, police, gendarmerie,
border guards), who submit their official reports to OFII (Article L.8271-17 of the Labour
Code). OFII then implements a prior adversarial procedure whereby the employer is
requested to present their observations (Article R.8253-3 of the Labour Code). The two
special and fixed contributions are then settled by OFII and recovered by the State as
foreign tax debts and receivables (tax services).
In principle, the amount of the special contribution is 5,000 times the hourly minimum
guaranteed rate (3.54 euros on 1 January 2017100), i.e. 17,700 euros for each employee
irregularly employed. It is reduced to 2,000 times this rate (i.e. 7,080 euros) in the event of
the non-accumulation of offences or the unprompted payment of salary debts due to the
foreign employee and to 1,000 times this rate (i.e. 3,540 euros) when the salary debts have
been paid and the official report mentions only one employee. In the event of repeat
offences, the special contribution is equal to 15,000 times the same rate (i.e. 53,100 euros)
for each unauthorised employee.
The amount of the fixed contribution, which represents the costs of returning the
foreigner to his or her country of origin, is set by two Orders of 5 December 2006, one
of which fixes the amounts by distance from mainland France (sub-Saharan Africa: 2,553
euros; America: 3,266 euros; South-East Asia and the Middle East: 2,309 euros;
Caucasus/Central Europe: 2,398 euros; North Africa: 2,124 euros) and the other, the
amounts by destination when the distance is measured from Guadeloupe, Guyana,
Martinique or the Reunion Island (from 421 euros to 7,709 euros).
Example of good practice: statistical analysis of reports submitted to OFII and recovery
of the special and fixed contributions for 2015.101
In 2015,102 the inspection bodies submitted 1,547 official reports to OFII on 2,449
employment offences, of which 2,199 also included a residency offence. In 2014, OFII
received 1,568 official reports relating to 2,512 employment offences, of which 2,276
included a residency offence. In around 90% of cases, the employer is, therefore, liable for
both contributions.
In 2015, 60% of official reports received, representing 923 cases and 1,505 offences, came
from eight Departments: Paris, Val d’Oise, Seine-Saint-Denis, Seine-et-Marne, Guyane,
Yvelines, Bouches-du-Rhône and Haute-Garonne. In contrast, OFII received no files for 45
Departments.
Of the 1,547 official reports submitted, 1,149 followed police inspections (74%), 245 labour
inspections (16%), 148 gendarme inspections (10%) and five border inspections (0.03%).
100 Decree No. 2016-1818 of 22 December 2016 on raising the minimum growth-indexed salary.
https://www.legifrance.gouv.fr/eli/decret/2016/12/22/ETSX1637203D/jo/texte 101 Source: OFII. 102 Source: OFII, 30 December 2016 (consolidated statistics for 2016 not available at this time).
Page 48 of 78
Some sectors of activity were over-represented: construction (552 official reports),
hospitality and catering (343 official reports), sales (274 official reports). This was followed
by the clothing and manufacturing industries (61 official reports), service activities (57
official reports), agriculture (46 official reports) and other sectors of activity (214 reports).
In 2015, OFII sent 1,559 contribution implementation decisions for a total amount of 43.5
million euros, of which 38.5 million euros were the special contribution and five million
euros were the fixed contribution.
This gave rise to 568 informal appeals (36%), of which 545 were rejected and 23 were totally
or partially accepted. OFII defended itself in 350 case at first instance in the administrative
tribunals and in 84 appeal cases. Of 237 judgements, 173 were upheld by the administrative
tribunals in OFII’s favour, 45 partially cancelled the OFII receivable by applying the criminal
cap (Article L.626-1 line 2 of CESEDA) and 19 ruled on a total discharge. OFII appealed
against eight judgements. The administrative courts of appeal made 10 rulings, of which nine
were in OFII’s favour.
The special and fixed contributions are recovered by the public finances.103 In 2015, a total
of 6.69 million euros was recovered by the DDFIP, of which 5.595 million came from the
special contribution and 1.098 million came from the fixed contribution. The recovery rate
is low (14%).
In terms of outstanding wages, OFII received 210 reports from inspection bodies (253 in
2014) and seven cases from administrative retention centre mediators. No salary recovery
procedure, under the terms of Article L.8252-2 of the Labour Code was initiated in 2015.
Q11a. Do the procedures differ if the employer did not intentionally hire irregular
worker? How is this established? What if the residence permit of the employee was
revoked?
YES
Before hiring a foreign worker presenting a residence and work permit in France, employers
must check the existence and validity of the work permit (Articles L.5221-8 and R. 5221-41 of
the Labour Code). Making this declaration enables the employer to be exonerated of the offence
of employing a foreigner without a permit.
Moreover, the second paragraph of Article L.8256-2 states that the sanction of five years’
imprisonment and a fine of 15,000 euros does not apply to “employers who, on the basis of a
fraudulent permit or a permit which is fraudulently presented by a foreign worker, without the
intention of participating in the fraud and without knowledge of it, made the declaration to the
social security bodies.”
When the employee’s residence permit is withdrawn, his or her rights are guaranteed (Article
L.8252-1 of the Labour Code) and the employer may either decide to keep the employee by
complying with the procedure for applying for a work permit, or dismiss them for misconduct
(established case-law Cass.Soc.18.02.2014).
103 Since 1 January 2017, the total special and fixed contributions have been entirely integrated into the State
budget, as the Finance Law of 2017 removed the principle of allocating it to the OFII budget up to a certain limit
(Article 36 of Law No. 2016-1917 of 29 December 2016).
Page 49 of 78
Q11b. What happens if the residence permit of the employee was revoked?
See Q11a.
Q12a. Does legislation in France provide for criminal sanctions for: a/b/c/d/e (as per
Art.9.1 of the Employer Sanctions Directive 2009/52) or domestic equivalent?
The Law of 16 June 2011 on immigration, integration and nationality,104 which transposes the
“Sanctions” Directive of 18 June 2009 into national law,105 defines a more effective legal
framework to combat illegal employment and, in particular, to combat the employment of
foreigners without work permits. It introduces administrative and criminal sanctions against
employers while strengthening certain existing sanctions.
Criminal sanctions for employers
Description
(a) the infringement continues or is
persistently repeated
YES
Repeat offences and the proportion of employees
affected are some of the elements taken into account
when determining the amount or type of fines or the
length of additional sentences (Articles L.8272-2 ad
L. 8272-4, L.8253-1 of the Labour Code).
Similarly, the amount of the fixed contribution
includes changes in the rate according to the number
of employees affected (see Q10 - box).
(b) the infringement is in respect of
the simultaneous employment of a
significant number of illegally
staying third-country nationals
(c) the infringement is
accompanied by particularly
exploitative working conditions
Since the Law of 13 April 2016 and the Order of 7
April 2016 controlling the application of employment
legislation, labour inspectors’ remits have been
broadened to include reporting offences relating to
trafficking in human beings, forced labour and
bonded labour. The Order of 7 April 2016 introduced emergency
procedures for employees who are minors.
Inspectors may impose the immediate withdrawal of a
minor who is working in a dangerous situation and
may break the employment contract or internship
agreement while maintaining the employee’s
remuneration. Similarly, access to documents is
speeded up in the event of mental or sexual harassment
and in relation to health and safety at work. This
extended remit improves the efficiency of inter-
Ministerial work between the DGT and OCLTI,
the office responsible for the fight against all forms
of labour exploitation. Their joint work aims not only
(d) The infringement is committed
by an employer who, while not
having been charged with or
convicted of an offence established
pursuant to Framework Decision
2002/629/JHA106, uses work or
services exacted from an illegally
staying third-country national with
the knowledge that he or she is a
victim of trafficking in human
beings
(e) the infringement relates to the
illegal employment of a minor
104 Law No. 2007-672 of 16 June 2011 on immigration, integration and nationality.
https://www.legifrance.gouv.fr/affichTexte.do?categorieLien=id&cidTexte=JORFTEXT000024191380 105 Directive 2009/52/EC of the European Parliament and Council of 18 June 2009 providing for minimum
standards on sanctions and measures against employers of illegally staying third-country nationals.
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2009:168:0024:0032:en:PDF 106 Framework Decision 2002/629/JAI of the Council of 19 July 2002 on combating trafficking in human beings.
http://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:32002F0629&from=EN
Page 50 of 78
to sanction non-compliance with workers’ social
rights, but also compliance with conditions relating to
pay, undignified work and accommodation with, as
the focal point, trafficking in human beings for the
purposes of employment. The National Gendarmerie
has units to combat illegal work and fraud (Cellules de
Lutte contre le Travail Illégal et la Fraude – CeLTIF),
which can fight against these forms of exploitation.
Q12b. Has you Member States amended legislation on sanctions for illegally employed
TCN since July 2014 ? If so, please provide details.107
Yes, Laws No. 2014-790 of 10 July 2014 to combat unfair competition and No. 2015-990 of 6
August 2015 on economic growth, activity and equality of opportunity, have strengthened the
sanctions applicable to illegal employment and, more specifically, in relation to contractors and
clients, and to fight against the fraudulent posting of workers.
Administrative sanctions contribute towards the policy of controlling migration flows by
fighting against illegal employment, itself supplied by irregular immigration.
Q13. What are the strengths and weaknesses in sanctioning employers who illegally
employed TCNs in France? What good practices can be identified in the area of sanctions
for employers? What were the particular success factors with measures that can be
identified as good practices?
It emerged through the interviews conducted as part of this study that several success factors
have been identified which may improve the effectiveness of sanctions for employers:
- In order to counter fraudulent behaviour, it is important to ensure that sanctions are
effective:108 there are now more administrative sanctions and it is necessary to ensure
that these are effectively applied. The objective is to have a dissuasive effect on
potential fraudsters, by publicising the sanctions applied against employers committing
illegal employment offences (e.g. administrative closure ruled by the Prefect is a visible
act which has a direct impact);
- The administrative closures decided upon by the Prefect and publication of the
sanction in the regional press as well as displaying the closure ruling on the premises
of the establishment also appear to be dissuasive factors which prevent repeat offences
and discourage other employers;
- The sanctions on ordering parties for their involvement, adopted as part of the Law
of 10 July 2014 aiming to combat unfair competition, may also enable a better
distribution of responsibility between the various actors and may improve vigilance by
clients and ordering parties in terms of their sub-contractors and contractors.
- Employers who cannot have their residence permits revoked (under application of
Article 8 of the ECHR) may, nonetheless, have their permits retrograded (changed from
a ten-year residence permit to a temporary one year permit, for example).
107 The European Commission published a report on the application of the “Sanctions for Employers” Directive of
22 May 2014. This EMN study aims to examine whether and, where appropriate, how far the new legislative
provisions/practices have developed since then. 108 Interview with representatives of the DNLF, January 2017.
Page 51 of 78
- In the case of trafficking in human beings, exceptional permission for residency is
possible (see Q14h).
Page 52 of 78
Section 5: Outcomes for TCNs found to be working illegally
This section aims to identify the possible outcomes and measures for TCNs found to be working
illegally in France. This section also looks at several case studies in order to better understand,
in practical terms, the procedures applied according to the regulations and the consequences
for third country nationals.
The Law of 16 June 2011 on immigration, integration and nationality,109 which transposes the
“Sanctions” Directive of 18 June 2009 into national law,110 introduces and strengthens sanctions
for employers, while introducing provisions aiming to guarantee the social and financial
rights of foreigners working illegally. The main measures include an increase in their
financial rights, the presumption of an employment relationship and a mechanism
allowing the employee to appeal or require that a judgement is executed towards an
employer for any unpaid wages or to request the competent authority undertake recovery
procedures.
Q14. In the event that an irregularly staying and illegally working TCN is detected, please
describe in which situations s/he is:
Q14a. issued with a return decision. Please also describe the procedure after an illegally
employed TCN is detected and how is this communicated to immigration authorities.
The majority of inspections are carried out jointly by the inspection agents from the various
bodies: the labour inspectorate, social security, borders, gendarmerie, police, etc. If third-
country nationals working illegally are identified during these inspections, officers who are
authorised to identify the employment of a foreigner without a permit (i.e. labour inspectors,
judicial police agents and officers, agents from the General Border Directorate) carry out the
necessary investigations to check their situation with regard to residence and employment and
launch the procedures and sanctions relating to the observed offences.
Pursuant to the provisions of the Law on Finances for 2012 (No. 2011-1977 of 28 December
2011, Article 62), new provisions relating to the transmission of reports identifying offences
relating to illegal employment (Articles L.8271-1-3 new and L.8271-17 modified of the Labour
Code) have been introduced. Thus:
- the inspectors mentioned in Article L.8271-1-2 of the Labour Code, who are
authorised to identify offences relating to illegal employment, submit a copy of
their reports to the representative of the State in the Department so that they can
apply the administrative sanctions set out in Articles L.8272-1 to L.8272-4 of the Labour
Code, introduced by Law No. 2011-672 of 16 June 2011 on immigration, integration
and nationality.
The Prefect addresses the situation as regards residency and may take a decision to
refuse residency, coupled with an order to leave French territory (Obligation de
quitter le territoire français) in line with Article L.511-1 of CESEDA.
- the inspectors mentioned in Article L.8271-17, who are authorised to identify the
employment of foreigners without a permit, submit a copy of their reports to the
109 Law No. 2007-672 of 16 June 2011 on immigration, integration and nationality.
https://www.legifrance.gouv.fr/affichTexte.do?categorieLien=id&cidTexte=JORFTEXT000024191380 110 Directive 2009/52/EC of the European Parliament and Council of 18 June 2009 providing for minimum
standards on sanctions and measures against employers of illegally staying third-country nationals.
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2009:168:0024:0032:en:PDF
Page 53 of 78
Director General of the French Office for Immigration and Integration (OFII) to
enable the settlement of the special contribution (Article L.8253-1 of the Labour Code)
and the fixed contribution (Article L.626-1 of CESEDA).
See Q4a for the offence of identity fraud.
Q14b. is granted a period for voluntary departure
The order to leave French territory, in line with Article L511-1 of CESEDA, includes a
voluntary departure period of 30 days. However, the administrative authority may decide that
the foreigner must leave the country without delay in certain situations, for example in the event
of a threat to public order, if there is a risk that the foreigner will flee, or if the order to leave
French territory is combined with a ban on returning to France.
The initial inspection and reporting procedure to identify offences does not change.
Q14c. has received an entry ban
See Q 14a and b
Q14d. fined
Fines are not imposed on the illegally working TCN but on the employer. See section 4.
However, the foreigner may be liable for sanctions relating to irregular residency, with a
decision to refuse residency combined with an order to leave French territory.
(see Q14 a and b)
Q14e. detained
Administrative detention is a procedure which aims to restrict the freedom of foreign nationals
who are the subject of a deportation order which contains no voluntary departure period or
whose time period has expired for preparation and implementation of his or her effective
departure from the country.
This provision also relates to foreigners who risk failing to comply with the repatriation order.
In France, regardless of the repatriation order applying to a TCN, the law on foreigners is
subordinate to placement in detention under certain conditions. If, after examining the
individual situation, the need for detention is established, the placement is carried out in
specialised premises distinct from penitentiary premises: administrative detention centres (in
principle) or administration detention facilities. The conditions for detaining people in these
premises are governed by the law and applicable regulations.
However, since the law of 16 June 2011, the authorities have attempted to prioritise voluntary
return and where this cannot be carried out, less coercive measures than detention are used. To
this end, the authorities have introduced a new scheme: a measure to confine the individual
to an administrative residence other than detention. This measure obliges a foreign national
subject to a repatriation order which does not, or no longer, includes a voluntary departure
period, to live in a specific place and to regularly report to the police or gendarmerie.
Q14f. receives work permit
See Q14g
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Q14g. receives residence permit
A foreign worker in an irregular situation may request, under the terms of the exceptional
permission for residency, a residence permit including “private and family life”,
“employee” or “temporary worker”. Pursuant to Article L.313-14 of CESEDA, a temporary
residence permit may be issued, except where the presence of the individual constitutes a threat
to public order, to a foreigner who is not living in a state of polygamy, whose permission for
residency meets humanitarian considerations or which is justified with regards to exceptional
reasons which they have demonstrated.
The Circular of 28 November 2012 on the exceptional permission for residency of foreign
nationals in an irregular situation111 specifies the conditions under which requests submitted by
foreign nationals in an irregular situation in France are examined, with a view to issuing a
residence permit either including the terms “private and family life” or “employee” or
“temporary worker” under application of Article L.313-14 of CESEDA.
This involves regularisations on a case-by-case basis. Several elements are taken into
consideration. In terms of permission to reside by means of employment, the third-country
national must be in possession of an employment contract or a recruitment pledge. They
must also meet the conditions of length of residency and employment in France: residency in
France of more than five years, other than exceptions, and employment of eight months over
the past two years or 30 months over the last five years.
A decision to refuse residency combined with an order to leave French territory, does not
systematically give rise to an examination under the exceptional permission for residency
(“regularisation”). However, third-country nationals in this situation may submit an
application for exceptional permission for residency when they can demonstrate the
elements enabling the Prefect to gauge whether there are exceptional reasons permitting their
regularisation. In the context of the Circular of 28 November 2012 on the exceptional
permission for residency of foreigners in an irregular situation,112 the elements taken into
consideration in the foreigner’s situation are private and family life, employment, humanitarian
considerations and length of residency. In all circumstances, the length of residence, the length
of education of any children, and the length of previous employment, depending on the permit,
are elements which are taken into account. Integration criteria, such as integration into French
society and French language ability, at least to an elementary level, are also taken into account.
In the event of a foreigner being subject to an order to leave French territory (OQTF), only new
elements provided by the foreigner which have not previously been brought to the Prefect’s
attention when the OQTF was issued may allow this measure to be reconsidered and to examine
the foreigner’s right of residency.
The Prefect may grant a residency permit after examining the TCN’s application and after the
recruitment pledge or employment contract has been processed by the foreign labour
department of the DIRECCTE.
Q14h. Please indicate outcomes if identified as a victim of trafficking of human beings
111 Circular NOR INTK1229185C of 28 November 2012 on the exceptional admission for residency of foreigners
in an irregular situation.
http://www.interieur.gouv.fr/content/download/36914/279112/file/2012-circulaire-conditions-demandes-
admission-sejour.pdf 112 Idem
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Article 8 of the Law of 13 April 2016 states that the first time the temporary residence card is
issued mentioning “private and family life” is now rightfully granted to foreign nationals who
meet the conditions defined in Article L.316-1 and R.316-3 of CESEDA:
- no threat to public order,
- can prove they have made a complaint against the person they accuse of having
committed offences relating to trafficking or procurement or that they have acted as a
witness in a criminal procedure about someone being prosecuted for these offences:
- can prove they have broken all links with the alleged authors of these offences.
Moreover, renewal of the temporary residence permit is also rightfully granted (since the Law
of 4 August 2014 on real equality between women and men) as long as the foreigner continues
to meet the conditions above and throughout the length of the criminal procedure. In the event
of the definitive sentencing of the person charged, a residence permit is rightfully issued (since
the law of 4 August 2014) to victims of trafficking in human beings (Line 2 of Article L.316-1
of CESEDA).
Finally, the law of 13 April 2016 inserts a new Article L 316-1-1 to CESEDA,113 which states
that a temporary residence permit of six months may be issued to victims of THB and
prostitution who are committed to leaving prostitution, independently of their cooperation with
the legal services.
Q15. In the event that a regularly staying and illegally working TCN is detected, please
describe in which cases:
Q15a. s/he can lose their residence rights
The fact of working without being authorised, for example by holding authorisation to reside
in France but not being authorised to undertake paid employment is liable to the same sanctions
as mentioned in Q14. Foreigners may have their residency permits withdrawn (or not renewed)
if they do not respect the terms of their residency permit.
Q15b. the illegal work is tolerated or regularised
No illegal employment is tolerated in France.
For regularisation, see Q14g
Q15c. fined
See Q14d
Q15d. detained
See Q14e
113 The Decree of 28 October 2016 issued by means of application of Law No. 2016-274 of 7 March 2016 and
introducing various provisions relating to the entry, residence and employment of foreigners in France.
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Q15e. issued a return decision
See Q14a
Q16. What are the consequences for TCNs who have temporary or permanent residence
permit in one EU country and is illegally employed in France?
Breaches of illegal employment legislation are recorded in France, independently of any
residency permits in another Member State.114
See Q14
Q17. Please describe the possibility for compensation or unpaid wages to the illegally
working TCNs- i.e. back payment of the salary
a. In the event that back payment of salaries, social security contributions and income
taxes are due in favour of the illegally employed TCN, please describe mechanisms in
place which provide for the liability of the employer to pay:
(i) outstanding remuneration
(ii) amount equal to taxes and social security contributions (which is due to the State and
not the TCN)
(i) Under the terms of the Decree of 30 November 2011 on the protection of the social and
financial rights of undocumented foreigners and the fight against illegal employment,
prosecuting officers are obliged to communicate information to OFII, as soon as an offence
of illegal employment of a foreigner is recorded, so that the office may intervene to recover,
in the foreigner’s name, wages and accessory payments (Article R.8252-5 of the Labour
Code).
When the employment relationship is breached, the employee whose employer has not declared
the job has the right to fixed compensation equal to six months’ salary (Article L.8223-1 of the
Labour Code); this is due regardless of how the employment relationship ended (dismissal,
resignation, end of a temporary contract, etc.).
The provisions of Article L.8223-1 of the Labour Code in no way exclude the possibility that
the fixed compensation mentioned is combined with any other kind of compensation to which
the employee is entitled in the event of the breach of the employment relationship:
compensation for breach of dismissal regulations, compensation for unfair dismissal,
compensation for lack of notice, compensation for paid leave, compensation for non-
compliance with the dismissal procedure, etc.
As the result of their period of illegal employment, foreign workers are entitled to (Article
L.8252-2 of the Labour Code):
- be paid wages and accessory payments for this period, in line with legal, conventional
and contractual provisions applicable to the employment, after deduction of sums
previously received during the period in question. Unless it can be proved otherwise,
the sums due to the employee will correspond to a presumed employment relationship
lasting three months. The employee may use any means to prove the work that was
carried out;
114 Posted workers do not fall within the scope of this study, so this point will not be covered in this paragraph.
Page 57 of 78
- in the event of breach of the employment relationship, fixed compensation equal to three
months’ salary is payable, unless application of the regulations featuring in Articles
L.1234-5 (compensation for notice), L.1234-9 (legal compensation for dismissal),
L.1243-4 (compensation for the employee in the event of early termination of a
temporary contract by the employer), and L.1243-8 (compensation for lack of security
due to the end of a temporary contract) of the Labour Code, or corresponding contractual
provisions, lead to a more favourable solution. The relevant industrial tribunal may
provisionally order the payment of this fixed compensation;
- where applicable, the payment by the employer of all costs of sending unpaid
remuneration to the country to which they have departed voluntarily or to which they
have been returned.
The provisions mentioned above do not prejudice the employee’s right to petition the court for
additional compensation if they can establish the existence of damages which have not been
remedied by these provisions.
b. Does French legislation foresee that, in addition to employers, direct contractors and
any intermediate subcontractor may also be required to pay any outstanding
remuneration and taxes?
Article L.8254-2 of the Labour Code addresses ordering parties’ financial solidarity, in the
event that they employ a foreigner who does not hold a permit to work in France.
This financial solidarity applies to all sums due to the undocumented foreigner: back payments
of wages and accessory payments, fixed compensation for breach of the employment
relationship, the cost of sending unpaid remuneration to the country to which the foreigner has
been returned, where applicable, and the payment of special and fixed contributions (Article
L.8254-2 of the Labour Code).
Moreover, the contractor or client is obliged to demand that the main joint contractor stop any
criminal situation which has been brought to their attention. Should due diligence not be
respected, the client may terminate the contract at the costs and risks of their joint contractor
(Article L.8254-2 of the Labour Code).
c. Please provide comments on difficulties encountered or success factors with measures
that can be identified as good practices in relation to claims for back payments.
The possibility of reducing the rate of the special contribution in the event of the employer
making unprompted payment of wages and compensation due to the undocumented
foreign employee is considered to be good practice, because it encourages the situation to be
resolved as soon as possible: the rate is reduced from 5,000 to 2,000 times the minimum
guaranteed hourly rate in the event of the unprompted payment of wage debts due to the foreign
employee, and to 1,000 this rate when wage debts have been paid and the report mentions only
a single employee (see box on the special contribution Q10).
d. In addition to back-payment, can employer be ordered to cover other expenses, such as
payment of living expenses (please define how living expenses are defined/ calculated) and
cost of return of illegally employed TCNs
See Q17a) for the sums due by the employer and Q10 for the fixed contribution representing
the costs of returning the foreigner to their country of origin.
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Q18a. Does the legislation in France foresee the right of illegally employed TCN to make
a claim against employer including in cases in which they have, or have been, returned?
Yes, third-country nationals who are illegally employed may make a claim.
b. if the answer is positive, is it a specific claim, or it falls under general provisions
concerning the right to bring a case before civil or labour courts
Foreign employees may bring a case before the industrial tribunal in order to obtain payment
of wages and compensation.
Moreover, they may call for additional compensation if they can establish the existence of
damages which have not be remedied by these provisions (Article L.8252-2 of the Labour
Code).
c. may third parties with legitimate interest act on behalf or in support of TCN in relevant
administrative or civil proceedings (e.g. trade unions, organisation of migrant workers,
public authorities)
Trades unions may legally bring any action resulting from application of the provisions of the
Labour Code relating to the fight against undeclared employment, in favour of an employee,
without having to justify that they were appointed by the person concerned. It suffices that the
employee has been informed by any means proving the date and that this is unopposed within
15 days from the date of receipt of the information. Under all circumstances, the concerned
party may speak before the court called upon by the trade union, and may put an end to the
procedure at any time. The applicable rules are laid out in Article D.8223-4 of the Labour Code.
d. Please provide comments on difficulties encountered or success factors with measures
that can be identified as good practices.
Protecting the rights of undocumented foreigners employed irregularly
The applicable administrative sanctions do not exonerate the employer of a foreigner without
a permit from their obligation to pay the foreign worker:
- wages and compensation due to the undocumented foreign worker up to six months’
salary in total: three months for the presumed wage and three months for breach of the
employment relationship;
- undocumented foreign workers may more easily recover their wages and compensation,
even in the event of returning to their country of origin. In this case, OFII is charged by
the foreigner with recovering, where applicable, the sums in question, in their place, and then
retrocedes them;
- finally, foreign workers without permits have better information on their rights. A
document explaining their rights available in French and translated into six languages, is
systematically given to relevant foreigners, through authorised inspection officers;
- contractors’ financial solidarity applies to all sums due to the undocumented foreigner:
back payments of wages and accessory payments, fixed compensation for breaching the
employment relationship, the costs of sending unpaid remuneration to the country to which
the foreigner has been returned, where applicable, and the payment of the special and fixed
contributions (Article L.8254-2 of the Labour Code).
Moreover, the contractor or client is obliged to demand that the main joint contractor put an
end to any criminal situation which has been brought to their attention.
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Q19a. Does France provide for information to illegally employed TCNs on their rights?
If Yes, is this foreseen in legislation, or else is it a part or general administrative guidelines
or practices?
Please provide comments on difficulties encountered or success factors with measures that
can be identified as good practices in relation to information obligations.
Yes, third-country nationals who are illegally employed are informed of their rights. This
information is covered in the legislation.
The Law of 16 June 2011 on immigration, integration and nationality115 states that foreign
workers without permits be informed of their social and financial rights and that they are
guaranteed to receive the wages and accessory payments due to them. The Decree of 30
November 2011 on the protection of the social and financial rights of undocumented foreigners
and the repression of illegal employment,116 pursuant thereto, states to this end that an
information document be given to the foreigner by the investigating officers during illegal
employment inspections (Article R.8252-1 and R. 8252-2 of the Labour Code).
Article R.8252-1 of the Labour Code states that when an inspection agent reports that “a foreign
worker is employed without being in possession of a permit authorising them to work in France,
the agent gives the worker a document informing them of their rights”.
Article R.8252-2 of the Labour Code defines the content of this document:
- the right to wages and various compensation;117
- the obligation on the employer to provide pay slips, employment certificate and settlement
of outstanding accounts corresponding to the period of employment with the company;
- the possibility when the foreigner is placed in administrative detention, assigned to a
specific residence, or when they are no longer on the national territory (Article L.8252-4
of the Labour Code), to obtain payment of wages and compensation through the French Office
for Immigration and Integration (Office Français de l'Immigration et de l'Intégration);
- the possibility, where applicable, to make a case before the relevant labour court with a
view to obtaining payment of wages and compensation, for any amount which has not been
recovered by the French Office for Immigration and Integration, notably through the
intermediary of a trade union;
- the possibility of also making a case to the applicable labour court to claim for damages
and interest if they are able to prove the existence of damages which have not been remedied
by the provisions of Article L.8252-2;
- the possibility of making a case against a person who they have accused of committing
the offences covered by Articles 225-4-1 to 225-4-6 and 225-5 to 225-10 of the Criminal Code
(trafficking in human beings and procurement), and the ability to subsequently receive a
temporary residence permit for “private and family life” throughout the procedure under
the terms of Article L. 316-1 of CESEDA;
- an indication of the fixed compensation, in the event of breach of the employment
relationship.
115 Law No. 2007-672 of 16 June 2011 on immigration, integration and nationality.
https://www.legifrance.gouv.fr/affichTexte.do?cidTexte=JORFTEXT000024191380&dateTexte=&categorieLie
n=id 116 Decree No 2011-1693 of 30 November 2011 on the protection of the social and financial rights of
undocumented foreigners and the repression of illegal employment.
https://www.legifrance.gouv.fr/affichTexte.do;jsessionid=?cidTexte=JORFTEXT000024881074&dateTexte=&o
ldAction=rechJO&categorieLien=id 117 See paragraphs 1 and 2 of Article L.8252-2 of the Labour Code.
Page 60 of 78
This information leaflet is translated into six languages: English, literal Arabic, Chinese,
Spanish, Portuguese and Russian.
This information is also displayed in detention centres in these different languages.
Q19b. Have any of measures referred to under questions 17-19 been introduced in your
legislation after July 2014? If yes, which ones?
These measures (back payment of wages and the right to other compensation, information on
the rights of foreign workers in an irregular situation, the right to file a case against the
employer) were introduced or strengthened in French legislation by:
- the Law of 16 June 2011 on immigration, integration and nationality for the
administrative and criminal sanctions against offending employers and for the
provisions guaranteeing the social and financial rights of foreigners in a situation of
illegal employment;
- the Law of 10 July 2014 to combat unfair social competition through the fight against
the fraudulent posting of workers, the duty of care and the responsibility of contractors
and clients towards their sub-contractors and contractors.
Q20. What good practices can be identified in France in the area of outcomes for illegally
employed TCNs (sanctions and other outcomes)? What were the particular success factors
with measures that can be identified as good practices?
See Q18d
Q21. Case studies:
In order to better understand the different procedures used when authorities detect illegal
employment of third-country nationals, five hypothetical case studies have been designed. It is
recognised that outcomes for TCNs may largely differ depending on their particular situation.
In this respect, the case studies will help to illuminate the elements which exist for national
authorities to use discretion in response to this. For each of the case studies below, please
describe the general procedure after detecting illegal employment and the consequences in
France for the third-country national. In order to determine the procedure and the
consequences in accordance with French regulations, additional information about the
particular circumstances of each case may be required. It is asked that the different
circumstances of each case be identified.
Q21a. A third-country national residing and working irregularly
Mr. Adawe Shire, a 38 years-old carpenter from Somalia entered France via irregular means
with his wife and 2-year old daughter. They have been in the (Member) State for three years.
Mr. Shire has been working without an employment contract at a construction company as a
general construction worker. Now he has found a job in his profession and would like to sign
a contract and apply for a legal residence permit. What happens after the labour inspectorate
detected irregularities on a random control? What are the consequences for him? If Mr. Shire
Page 61 of 78
is not detected but he is offered a new job with a written contract can his situation be
regularised?
During a control by a labour inspector, if Mr Shire is identified as being in an irregular
employment situation, the inspector may submit a report to the public prosecutor, in order to
engage criminal sanctions against Mr Shire’s employer, for the illegal employment of an
undocumented foreign worker (Article L.8256-2 and following of the Labour Code). This
report is also submitted to OFII for the application of an administrative fine known as the
“special contribution”. Moreover, because the employment relationship was illegal, the
employer must immediately stop working with Mr Shire.
The Prefect, who is also informed, may decide to apply additional administrative or criminal
sanctions against the employer and will address the situation of the foreign worker with regards
to residence. He or she may take a decision to refuse residence, coupled with an order to
leave French territory in line with Article L.511-1 of CESEDA.
The employer is subject to administrative sanctions (L.8253-1 of the Labour Code and, where
applicable, Article L.626-1 of CESEDA, and Article L.8272-1 and following of the Labour
Code) and criminal sanctions (L.9256-2 and following) for having employed a foreigner
unauthorised to work. The labour inspector sends a report to the public prosecutor118 in order
to engage criminal sanctions, and to OFII to implement the special and fixed contributions due
by the employer. In France, Article L.8251-1 of the Labour Code formally forbids employing
a foreigner who is not authorised to carry out paid employment. Moreover, it should be
specified that a scheme known as the “criminal cap” is possible in the event of an accumulation
of these sanctions.
If Mr Shire can prove he has a job offer, his situation may be regularised on the basis of
the elements which will be taken into consideration by the Prefect when submitting an
application for exceptional permission for residency.
A foreign worker in an irregular situation may request, under the terms of the exceptional
permission for residency, an employee or temporary worker permit. Pursuant to Article L.313-
14 of CESEDA, a temporary worker or employee residence permit may be issued, except where
the presence of the individual constitutes a threat to public order, to a foreigner who is not living
in a state of polygamy, whose admission for residence meets humanitarian considerations or is
justified with regards to exceptional reasons which they have shown.
The Circular of 28 November 2012 on the exceptional admission for residence of foreign
nationals in an irregular situation119 specifies the conditions under which applications submitted
by foreign nationals in an irregular situation in France are examined, with a view to issuing a
residence permit either under the terms of “private and family life”, “employee”, or “temporary
worker” under application of Article L.313-14 of CESEDA.
This involves regularisations on a case-by-case basis. Several elements are taken into
consideration. In terms of permission for residency by means of employment, third-country
118 A copy of the report is also sent to OFII in order to engage the special and fixed contribution as set out in Article
L.8271-17 of the Labour Code. 119 Circular NOR INTK1229185C of 28 November 2012 on the exceptional admission for residency of foreigners
in an irregular situation.
http://www.interieur.gouv.fr/content/download/36914/279112/file/2012-circulaire-conditions-demandes-
admission-sejour.pdf
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nationals must be in possession of an employment contract or a recruitment pledge. They
must also meet the conditions of length of residency and employment in France: residency in
France of more than five years, other than exceptions, and employment of eight months over
the past two years or 30 months over the last five years.
Receiving a decision of refusal of residency combined with an order to leave French
territory, does not systematically give rise to an examination under the exceptional permission
for residency (“regularisation”). However, third-country nationals in this situation may submit
an application for exceptional permission for residency when they can present the elements
enabling the Prefect to judge whether there are exceptional reasons permitting regularisation.
In the context of the Circular of 28 November 2012 on the exceptional permission for residency
of foreigners in an irregular situation,120 the elements taken into consideration in the foreigner’s
situation are private and family life, employment, humanitarian considerations or length of
residency. In all circumstances, the length of residence, the length of education of any children
and the length of previous employment depending on the permit are elements which are taken
into account. Integration criteria, such as integration into French society and French language
ability, at least to an elementary level, are also taken into account.
In the event of a foreigner being issued an OQTF, only new elements provided by the foreigner
which have not previously been brought to the Prefect’s attention when the OQTF was issued
may enable this measure to be reconsidered and enable the foreigner’s right of residency to be
examined.
The Prefect may grant a residence permit after examining the TCN’s application and
investigation of the recruitment pledge or employment contract by the foreign labour
department of the DIRECCTE.
The Circular of 28 November 2012 states that the length of education of any child must be
at least three years. However, it appears that this criterion would not be taken into
consideration in Mr Shire’s case, given the age of his child when he arrived in France.
The fact that Mr Shire’s occupation (carpenter) has experienced recruitment difficulties and is
listed in the list of 30 shortage occupation121 (“Wood and associated materials worker (mass
production)”) may also be an element that the Prefect would take favourably into account if the
region where he works is recognised as a region where this occupation is under tension.
Q21b. A third-country national on a student permit employed more hours than
allowed
Ms. Svitlana Ivanenko, a student holding Ukrainian citizenship, aged 22, moved to France one
year ago. Svitlana is enrolled in a two year master’s programme at university. She holds a
residence permit for students. For the past six months she was also employed for 10 hours per
week at a local café122. During some months of the academic year as well as the summer break
120 Idem 121 See the list of regions affected in the Decree of 18 January 2008 on the issuance, without the employment
situation being ‘opposable’, of work permits to foreigners not from an EU Member State, a country in the European
Economic Area or Switzerland..
http://www.immigration-professionnelle.gouv.fr/sites/default/files/fckupload/arrete_du_18-01-
2008_%20liste_30.pdf 122 Based on Directive 2016/801 on the conditions of entry and residence of third-country nationals for the purposes of research, studies, training, voluntary service, pupil exchange schemes or educational projects and au pairing (recast) allowing students to take up employment of at least 15 hours per week. IE and the UK are not participating in this Directive.
Page 63 of 78
at university, Svitlana started to work longer hours at the café, leading to work of almost 45
hours per week during term time for 3 months without changes in her part-time student contract.
What happens after the labour inspectorate detected that Svitlana was working 40 hours per
week? Please specify the maximum hours per week that students are allowed to work in France.
Article R.5221-26 of the Labour Code authorises third-country national students holding a
temporary “student” residence permit to carry out a complementary professional activity up
to 60% of the annual period of work authorised by Article L.317-7 of CESEDA, whichis
equivalent to 964 hours per year during the year of validity of the residence permit. However,
the student can use this quota which is equivalent to a weekly average of 18.5 hours throughout
the year in the framework of full time or part time contract(s), provided that the student is in
compliance with the provisions of the Labour Code. Pursuant to the provisions of Article L.313-
5 of CESEDA, the Prefecture may refuse to renew or withdraw a residence permit from a third-
country national student when they do not respect the 60% limit of annual working time.
Svitlana Ivanenko initially worked for 10 hours per week for six months then worked for 45
hours a week for three months. In total, she worked for 780 hours. This is lower than the 964
annual hours authorised by Article L.317-7 of CESEDA. Her residence permit could not,
therefore, be withdrawn or not renewed by the Prefecture under application of Article L.311-5
of CESEDA.
Moreover, the 45 hours per week for 12 consecutive weeks worked by Svitlana Ivanenko
therefore do not contravene the provisions of the article. Articles L.3121-20 and L.3121-22 of
the Labour Code123 nor the provisions of the collective agreement for the hospitality and
catering sector of 30 April 1997124.
However, Article R.5221-28 of the Labour Code obliges employers wishing to employ foreign
students to make a nominative declaration to the Prefecture including, notably, the number
of annual hours worked according to the employment contract. If the employer is unaware of
these provisions, they are liable for a fine set out for contraventions of the 5th class, as set out
in Article R.5224-1 of the Labour Code.
The employer made no changes to Svitlana Ivanenko’s part time contract and did not report
the change to the Prefecture. The hours worked correspond to a full-time job.
In the event of a labour inspection, the employer may be sentenced to the fine set out in article
R.5224-1 of the Labour Code.
The Labour Code does not include sanctions for foreign students who have exceeded their
contingent of authorised working hours. The employee may only be prosecuted in certain cases:
fraudulent use of replacement income (‘back-to-work’ allowances for example), identity fraud
by using ID documents belonging to a third party (punishable by five years in prison and a
75,000 euro fine). This incrimination was introduced to Article 441-8 of the Criminal Code by
the Law of 7 March 2016.
123 These articles state that the maximum weekly working time may not exceed 48 hours in any one week and 44
hours per week on average over a period of 12 consecutive weeks. 123 This collective agreement sets out the rules applying to local cafés and authorises going beyond the average
duration of 44 hours up to 46 hours over a period of 12 consecutive weeks. 124 National collective agreement for hotels, cafés and restaurants (HCR) of 30 April 1007.
https://www.legifrance.gouv.fr/download_code_pdf.do?cidTexte=KALITEXT000005670044&pdf=KALITEXT
000005670044
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Q21c. A third-country national who resided and worked regularly, but whose
permit has expired
Jiao Bao, a 33 years old web designer from China arrived in France two years ago through a
temporary residence permit arranged through an IT company that employed him. She lost her
job and found a job in a local bar for which she was not authorised by her residence permit.
After four months of working in the local bar, she applies for a job at another IT company and
receives a job offer. However, in the meantime she was detected by the labour inspectorate of
working irregularly in the local bar. What happens after the detection taking into consideration
that she holds a job offer?
Article L.5221-5 of the Labour Code states that TCNs authorised to reside in France may not
undertake paid work in France without obtaining a work permit in advance.
Jiao Bao was in a regular situation with regards residence and employment in a specific job.
However, she then worked without being authorised to do so, by taking on a job in different
sector of activity and probably received a different wage. If the Prefect is informed of this
situation, even if she has a new job offer, the Prefect may launch a procedure to withdraw her
residence permit or refuse to renew it because she no longer fulfils the conditions of her original
residence permit, in line with paragraph 8 of Article R.311-14 of CESEDA. In the event of her
residence permit being withdrawn, she will be ordered to leave French territory (Article R.311-
16 of CESEDA).
If her residence permit has expired and she has taken a new job, Jiao Bao is in an irregular
situation as regards residence and employment. In the event of an inspection, refusal of
residency and an OQTF will be issued by the Prefect. The employer may also be subject to
criminal and administrative sanctions.
Q21d. A third-country national present as a tourist
Marija Bogdanovic, a Serbian citizen, aged 45 has entered France as a tourist one month ago.
Due to visa liberalisation for the Western Balkans countries, Marija has the right to remain in
France for up to 90 days per six-month period as a tourist without requiring a visa125. During
her stay in France, Marija has been working for a family she met through friends as a
housekeeper and babysitter. She has been living with the family and has been paid cash for her
work. After two months the family asks Marija to stay and work for them full time. They offered
to grant her a work contract and asked her to apply for a residence permit. Marija intends to
apply for a residence in permit in France during the 90 days period she enjoys visa
liberalization. However, Marija is detected by the authorities in France before applying for the
permit. What would be the consequence for Marija?
Article L5221-5 of the Labour Code states that a foreigner authorised to reside in France may
not carry out paid work in France without having received a prior work permit (the employer
must also check this under Article L.8251-1 of the Labour Code). Moreover, pursuant to the
provisions of paragraph 8 of Article L.511-1 of CESEDA, third-country nationals who have not
125 Based on the visa free travel decision adopted by the EU Member States on 30 November 2009:
http://europa.eu/rapid/press-release_IP-09-1852_en.htm?locale=fr
Page 65 of 78
resided regularly in France for more than three months and who are unaware of Article 5221-5
of the Labour Code may be issued with an order to leave French territory (OQTF).
Marija arrived in France as a tourist, on a short stay visa due to her Serbian nationality and
she holds a biometric passport. She worked for two months for a family in an irregular
employment situation, without an employment contract. Moreover, with regards to residency,
the Law of 7 March 2016 on the rights of foreigners sets out new provisions in terms of the
exemption from requiring a work permit for foreign nationals coming to work in France
for a period which is less than or equal to three months. Article D.5221-2-1 of the Labour
Code, created by Decree No.2016-1461 of 28 October 2016, states that foreigners who enter
France to undertake paid work for a period of less than or equal to three months in one of
a certain number of sectors are not bound to request a work permit. This exemption from
requesting a work permit only applies for the sector in which Marija works (personal services
and domestic employees) to foreigners who are employed as domestic staff and who are
accompanying their employer to France. This is not the case for Marija.
Having been identified as being in an irregular employment situation, Marija may be issued
with an order to leave French territory. Although she now has an employment contract, she
may not request exceptional permission for residency.
The Circular of 28 November 2012 on the exceptional permission for residency of foreign
nationals in an irregular situation126 specifies the conditions under which requests submitted by
foreign nationals in an irregular situation in France are examined, with a view to issuing a
residence permit either under the terms of “private and family life”, “employee” or “temporary
worker” under application of Article L.313-14 of CESEDA. Several elements are taken into
consideration. In terms of permission to reside by means of employment, the third-country
national must be in possession of an employment contract or a recruitment pledge. They
must also meet the conditions of length of residency and employment in France: residency in
France of more than five years, other than exceptions, and employment of eight months over
the past two years or 30 months over the last five years. Exceptionally, third-country nationals
who have been living for three years in France may also request a residence permit if they can
prove they have worked for 24 months, including eight in the last 12 months.
Moreover, their employer may be criminally sanctioned for having both employed a
foreigner without a valid work permit (Article L.8256-2 and following of the Labour Code) and
for having not declared this employment (Article L.8221-5 of the Labour Code). In
addition to these criminal sanctions, there may also be civil and administrative sanctions
(fixed fee and social contributions).
They may also be subject to additional sentences set out in Article L.8256-3 and administrative
sanctions as set out in Articles L.8272-1s and L.8253-1 of the Labour Code and L.626-1 of
CESEDA.
Moreover, by failing to check Marija’s situation before employing her, the employer may also
be liable for fines set out for contraventions of the 5th class (Article R. 5224-1 of the Labour
Code).
126 Circular NOR INTK1229185C of 28 November 2012 on the exceptional admission for residency of foreigners
in an irregular situation.
http://www.interieur.gouv.fr/content/download/36914/279112/file/2012-circulaire-conditions-demandes-
admission-sejour.pdf
Page 66 of 78
A21e. A third-country national seasonal worker
Mr. Karim Harrak, a 25 year old from Morocco entered France as a seasonal worker for
strawberry picking. He has been residing on a seasonal worker permit and is required to leave
France after the legally allowed duration for stay expired127. The contract with his current
employer is valid for six months. However, after his contract expired he remained in France
and took on another job in a hotel. He thus remained in France longer than the legally allowed
duration. After a few months in the second job, he applied again as a seasonal worker for
strawberry picking. However, he is detected that he has overstayed in the country. What would
be the consequences for Karim?
Pursuant to Article L.313-23 of CESEDA, third-country nationals holding a multi-annual
residence permit mentioning “seasonal worker” have the right to reside and work in France
for periods set by the residence permit, which may not exceed a cumulative duration of six
months per year.
Karim is in an irregular situation as regards both residency and employment. He worked
as a seasonal worker for six months while holding the corresponding residence permit. He then
worked in a hotel without being authorised to do so, because the condition relating to the
cumulative duration of six months per year was breached. If he is detected, his residence
permit will be withdrawn and he will not be eligible for a new work permit. He will be issued
with an OQTF, in line with Article L.511-1-I of CESEDA. Moreover, the 30-day legal period
from notification will not apply to him if the administrative authority believes, under the terms
of Article L.511-1-I of CESEDA, that there is a risk that the foreigner will not comply with
this obligation.
A21f. A third-country national working from an international trading company
Mrs Awa Diop arrived from Senegal in your country illegally a year ago and has been working
for an international trading company during that time irregularly ever since. For the last five
months she has not been payed her salary by her employer. She decides to sue the company and
to give up her false identity which the employer was aware of. What would be the consequence
for Mrs Diop?
Even as an undeclared worker or working in an irregular employment situation, he has rights
which he can demand be enforced by addressing, as appropriate, the labour inspectorate, the
industrial tribunals or – in terms of his situation with regards to social security, the National
Health Insurance Body (CPAM), URSSAF or the MSA.
Indeed, pursuant to the provisions of Article L.8252-1 of the Labour Code, this employee is
equivalent, from the date of his recruitment, to a regularly employed worker, with regards to
the employers’ obligations.
127 Based on Directive 2014/36/EU – Seasonal workers – allowing third-country nationals to reside in a Member
State between five months and nine months in any 12-month period. The permit is renewable. IE and the UK are
not participating in this Directive.
Page 67 of 78
Article L.8252-2 of the Labour Code states that the “foreign worker has the right for the
duration of the illegal period of employment, to:
1 The payment of wages and accessory payments in line with legal, conventional and
contractual provisions applicable to his or her work, minus any sums previously paid during the
period in question. Unless proven otherwise, the sums due to the employee will correspond to
a presumed employment relationship lasting three months. The employee may use any means
to prove the work that was carried out;
2 In the event of the employment relationship being ended, fixed compensation equal to
three months’ salary is payable, unless application of rules contained in Articles L.1234-5,
L.1234-9, L.1243-4 and L.1243-8 or corresponding contractual provisions lead to a more
favourable solution.
3. Where applicable, payment by the employer of all costs of sending unpaid remuneration
to the country to which they have departed voluntarily or to which they have been returned.
When a foreigner without a work permit has been employed in the context of undeclared work,
they benefit from the provisions of Article L.8223-1,128 or the provisions of the present Chapter
should these be more favourable.
The relevant industrial tribunal may provisionally order the payment of the fixed compensation
mentioned in paragraph 2.
These provisions do not prejudice the employee’s right to petition the court for additional
compensation if they can establish the existence of damages which have not been remedied by
these provisions.”
Awa Diop has been in an irregular situation with regards residency and employment since
her arrival in France a year ago. Her employer is liable for criminal and administrative
sanctions for having illegally employed her and must also pay back payments of wages to
Awa Diop, as well as social contributions. Because of her irregular situation with regards
residency and employment, Mrs Diop may be issued with an OQTF (Article L.511-1 of
CESEDA). She is not eligible to apply for exceptional permission for residency for foreigners
in an irregular situation, insofar as she does not meet the conditions of length of stay and
employment in France.
128 When the employment relationship is breached, the employee whose employer has not declared the work has
the right to a fixed compensation equivalent to six months’ salary (Article L.8223-1 of the Labour Code). This
fixed compensation is due regardless of how the employment relationship ended (dismissal, resignation, end
of a short-term contract, etc.).
Page 68 of 78
Conclusion
Illegal employment consists of a range of major types of fraud relating to economic activity
and the employment of workers, resulting in significant losses to the public purse, in terms
of tax income and social security contributions. It is also damaging to the rights of employees
who are the victims of illegal employment, who may not benefit from the legislation relating
to employment and social protection. Faced with these major issues, institutional and legal
mechanisms to combat the various forms of illegal employment have been strengthened in
France over recent years and have been the subject of several legal and regulatory measures
aiming to improve inspection methods and the powers of authorised officers, to encourage inter-
Ministerial co-ordination and strengthen criminal and administrative sanctions. It also focuses
on guaranteeing the protection of workers’ rights.
In 2014, more than 15,300 offences were reported in France. The employment of foreigners
without a work permit was the second most widely-reported phenomenon in 2014,
corresponding to 12.6% of all offences.
The fight against illegal employment is a governmental priority, based on inter-Ministerial
work. Strengthening the fight against illegal employment in recent years has seen significant
results, as the result of the involvement of the inspection services of various administrations
and social protection bodies. Everyone involved in the fight against illegal employment
remains, nonetheless, confronted with serious challenges, in particular the constant need to
adapt inspections to new issues and the increasingly complex and sophisticated nature of
fraud. This is a phenomenon which cannot, by definition, be completely controlled.
Several examples of good practice came to light during the interviews and questionnaires
carried out as part of this study:
- the signature of partnership agreements, on the national and local level, with the social
partners in various professional sectors;
- awareness-raising meetings targeting companies to help prevent situations where
offences might take place.
- communication on sanctions for employers and strengthening sanctions, both
administrative and criminal, which may have a direct impact and create a dissuasive
effect;
- several tools have recently been created to facilitate inspections and to fight more
effectively against the various forms of illegal employment, such as the BTP card.
- the Advance Notification of Recruitment and the nominative social declaration
facilitate the detection of illegal employment.
- the role of the CODAFs which strengthen the work to fight against fraud on the local
level;
- improving joined-up working between the various services involved, which
encourages the exchange of information and strengthens the effectiveness of inspection
operations.
Page 69 of 78
ANNEXES
Annex 1: Statistical annexes
1. Inspections and sanctions for employers
QA.1: Please provide statistics on a number of convictions for employing illegally staying
TCNs for years 2014, 2015 and 2016, if possible broken down by specific criminal offences
enlisted in Article 9.1. a-e of Directive 209/52, i.e.:
Number of convictions for employing foreigners without work permits (ESTT) in
France
(it is not possible to distinguish EU nationals from third-country nationals)
Number of convictions 2014 2015
Employing foreigners without permission to work 1,930 1,388
including:
Employing a foreigner without permission to work 1,884 1,349
Criminal responsibility of a natural person for employing a
foreigner without a work permit 46 39
Source: Data from the Tadees software (automatic processing of statistical data), DGT/BPSIT, February 2017
QA.2: Please provide statistics on type and number of sanctions for employers in France
Implementation of special and fixed contributions:
Year 2013 2014 2015
Number of cases
submitted to OFII 3,376 3,030 2,958
Number of offences
reported (employing
foreigners without a
permit)
5,906 4,788 4,648
Average number of
offences per case 1.75 1.58 1.57
Source: OFII, Report to Parliament, Les étrangers en France, 2015
Page 70 of 78
Statistical report on administrative sanctions for illegal employment - 2015
Statistical report on administrative sanctions for illegal
employment pursuant to Article 7 of the EU Directive
EU/2009/52
Number of decisions or orders
2012 2013 2014 2015
Exclusion from assistance, refusal and grants including
EU funds 1 2 13
Exclusion from public tender procedures for less than five
years, administrative contracts 1 2 1
1
Refund of public assistance funds received by the
employer and EU funds during the twelve months preceding the establishment of the report noting the offence
2 3 13
Temporary or definitive closure of the establishment
following a report of illegal employment of foreigners
without a permit
194 291 270
261
Source: DNLF, Report to Parliament, Les étrangers en France, 2015
Report on illegal employment - État 4001 – cumulative results of Indexes 93, 94 and 95 in
mainland France129
In 2015, of the 11,188 people accused of employment legislation offences, foreigners made up
29.7%, i.e. 3,323 people (compared to 3,654 in 2014).
2013 2014 Changes
2013/2014 2015
Changes
2014/2015
Total persons
accused 12,907 12,024 -6.8% 11,188 -7.0%
Foreigners
accused 4,495 3,654 -18.7% 3,323 -9.1%
Percentage of
foreigners 34.8% 30.4% -12.7% 29.7% -2.3%
Source: Ministry of the Interior-DCPJ, Report to Parliament, Les étrangers en France, 2015
129 The results obtained in 2015 by the police and gendarmerie in mainland France are presented in three indexes
of Etat 4011 (the database collating crimes and offences reported by the police and gendarmerie) measuring all
incriminations for illegal employment:
- Index 93 - Undeclared employment;
- Index 94 - Employing foreigners without work permits;
- Index 95 – Unlawfully supplying and sub-contracting labour.
Page 71 of 78
2. Scale and profile of illegal employment of third-country nationals
QA.3: Please provide statistics on a number of identified illegally employed TCNs.
Number of victims of the offence of employing a foreigner without a
work permit (ESTT) from third countries and the EU in 2015 1,946
Of which third country nationals: 1,774
Number of victims of the offence of employing a foreigner without a
work permit (ESTT) from third countries and the EU in 2014 2,760
Of which third country nationals: 2,311 Source: Data from the Tadees software (automatic processing of statistical data), DGT/BPSIT, February 2017
Report on the employment of foreign workers without permits - Etat 4011 - Index 94
Changes in the total number of people accused of employing a foreign worker without a work
permit 2011–2014
Between 2004 and 2014, approximately one person in two accused of employing foreign
workers without a work permit were foreign, i.e. slightly fewer than 2015 with 910 people in
mainland France.
2011 2012 2013 2014 2015 Changes
2015/2014
Changes
2015/2011
Total persons
accused 2,687 2,689 2,401 2,063 1,977 -4.2% -26.4%
- of which were
foreigners 1,426 1,334 1,215 989 911 -7.9% -36.1%
Percentage of
foreigners 53.1% 49.6% 50.6% 47.9% 46.1% -3.9% -13.2%
Ministry of the Interior-DCPJ, Report to Parliament, Les étrangers en France, 2015
QA.4: Please provide statistics on the profiles of illegally employed TCNs in France for
2015
Data disaggregated by nationality, age and sex are not available. In addition, there is no
distinction between third-country nationals and EU nationals.
Page 72 of 78
3. Outcomes for third-country nationals
QA.5: Please provide statistics on the outcomes of identified illegally employed TCNs.
TCNs employed illegally 2014 2015 2016 Methodological
notes
Number of residence and/or
work permits issued to third-
country nationals identified
as being illegally staying and
working / regularly staying
but illegally working
32,244 29,658 Not
available
This data relates to
volumes of
exceptional
permission for
residency of foreign
nationals (France as a
whole, all countries)
and includes issuing
residence permits for
“private and family
life”, “worker” and
“student”.
Source:
AGDREF/DSED,
Report to Parliament,
Les étrangers en
France, 2015
Number of illegally
employed TCNs who were
granted a period for
voluntary return
Not available
Number of illegally
employed TCNs who were
given an order to leave the
country following a labour
inspection
Not available
Number of illegally
employed TCNs who were
deported following an
inspection
Not available
Number of illegally
employed TCNs who were
identified as victims of
trafficking in human beings
Not available
Number of decisions obliging
employers to pay back
payments / amount equal to
taxes and social security
contributions.
In 2015, OFII received 210 reports from inspection
bodies (253 in 2014) and seven cases from administrative
detention centre mediators. No procedure to recover
salaries, under the terms of Article L.8252-2 of the
Labour Code was initiated in 2015 (Source: OFII).
Page 73 of 78
QA.6: Please provide statistics on the types and number of sanctions for illegally employed
TCNs
See Q14d: sanctions are imposed on the employer for illegally employing foreign workers,
not on the employee.
QA.7: Number of complaints lodged against employers for employing illegally TCNs.
Please provide any disaggregation/break down on the type of complaints if available –
such as complaints lodged by third parties, complaints lodged by TCNs, etc.
Not available.
QA.8: Descriptive overview of the profile of employers, including affected sectors of
labour market.
Distribution of ESTT offences by sector: (it is not possible to distinguish EU nationals from third-country nationals)
2014 2015
Agriculture; 79 50
Industries 57 38
Construction 755 494
Sales 325 249
Hospitality and catering 410 333
Transport 65 40
Services 72 41
Financial, property, scientific and technical activities 26 21
Information and communication 4 2
Arts, entertainment and recreational activities 8 14
Other 129 106
Total establishments 1,930 1,388
Source: Data from the Tadees software (automatic processing of statistical data), DGT/BPSIT, February 2017
Page 74 of 78
Annex 2: List of people interviewed or having contributed to the study
Interviews and questionnaires were carried out between November 2016 and February 2017
by Christelle Caporali-Petit (Coordinator of the French National Contact Point of the
European Migration Network), Anne-Cécile Jarasse (Policy officer within the EMN), Tamara
Buschek-Chauvel (Policy officer within the EMN) and Chloé Tinguy (EMN intern).
1) List of interviews conducted
General Directorate for Foreigners in France (Direction Générale des Étrangers en
France) under the auspices of the Ministry of the Interior, Migration Directorate
- Adèle Hongois, Head of the Office to Combat Illegal Employment and Identity Fraud
(Bureau de la lutte contre le travail illégal et les fraudes à l’identité) (BLTIFI)
Labour Inspectorate Steering Department (Département du pilotage du système
d’inspection du travail) within the Ministry for Labour, Employment, Professional
Training and Social Dialogue.
- Philippe Dingeon, Head of the Labour Inspectorate Steering Department
- Magali Ancel-Decrossas, responsible for statistics on illegal employment
- Raymond Poincet, project manager for the illegal employment and posted workers unit,
Office for Individual Employment Relations (Bureau des Relations Individuelles du
Travail)
National Anti-Fraud Delegation (Délégation nationale à la lutte contre la fraude, DNLF),
Ministry for the Economy and Finances
- Christine Rigodanzo, Director, Head of Mission, National Anti-Fraud Delegation
(Délégation nationale à la lutte contre la fraude), Ministry for the Economy and
Finances
- Geoffroy Fougerey, Divisional Commissioner, Head of Mission, National Anti-Fraud
Delegation (Délégation nationale à la lutte contre la fraude), Ministry for the Economy
and Finances
- Rémi Favier, Head of Mission, National Anti-Fraud Delegation (Délégation nationale
à la lutte contre la fraude)
2) List of questionnaires completed and contributions received
General Directorate for Foreigners in France (Direction Générale des Étrangers en
France) under the auspices of the Ministry of the Interior, Migration Directorate
- Sophie Deknuydt, Deputy Head of the Labour Migration Bureau (Bureau de
l'Immigration Professionnelle - BIP)
- Virginie Saccazes, Head of the Illegal Employment Section, Office to Combat Illegal
Employment and Identity Fraud (Bureau de la lutte contre le travail illégal et les fraudes
à l’identité) (BLTIFI)
General Directorate for Labour (Direction Générale du Travail) within the Ministry for
Labour, Employment, Professional Training and Social Dialogue.
- Christelle Akkaoui, Deputy Head of the Office of Individual Employment Relations
(Bureau Relations Individuelles du Travail)
Page 75 of 78
Regional Directorate for Business, Competition, Consumer Affairs, Labour and
Employment (Direction régionale des entreprises, de la concurrence, de la consommation,
du travail et de l’emploi) (DIRECCTE)
- Marc-Henri Lazar, Deputy Regional Director, Head of the Employment Policy Unit,
DIRECCTE Auvergne-Rhône-Alpes
- Philippe Sold, Director of Employment and Social Relations Unit, DIRECCTE Grand
Est
- Angélique Alberti, Deputy Head of Employment Unit, DIRECCTE Grand Est
- Brigitte Karsenti, Deputy Regional Director, Employment Policy Unit, DIRECCTE
Hauts-de-France
- Philippe Suchodolski, Deputy Director, Employment Unit, DIRECCTE Hauts-de-
France
French Office for Immigration and Integration (Office Français de l'Immigration et de
l'Intégration)
- Odile Dorion, Head of Legal Monitoring and Litigation
- Isabelle Dauga, Head of the Unit to Combat Irregular Immigration
Page 76 of 78
Annex 3: Bibliography
1. Texts, reports and studies
ACOSS, Rapport d’activité thématique 2015, Le contrôle et la lutte contre la fraude au
prélèvement social.
http://www.acoss.fr/files/contributed/Acoss%20et%20les%20Urssaf/RA%20RT%202015/Co
ntrôle%20et%20lutte%20contre%20la%20fraude
National Commission to Combat Illegal Employment, National Plan to Combat Illegal
Employment (2016-2018).
http://www.economie.gouv.fr/files/files/directions_services/dnlf/PNLTI_2016-2018.pdf
Court of Audit, La lutte contre les fraudes aux cotisations sociales, des enjeux sous-estimés,
une action à intensifier, September 2014.
General Directorate for Labour, Analyse de la verbalisation du travail illégal en 2014,
December 2015.
http://travail-emploi.gouv.fr/IMG/pdf/rapport_verbalisation_en_2014.pdf
Direction générale du travail, Bilan des contrôles dans les secteurs prioritaires identifiés par le
plan national de lutte contre le travail illégal en 2014, Février 2016.
http://travail-emploi.gouv.fr/IMG/pdf/controle_des_secteurs_prioritaires_en_2014.pdf
DNLF, Lutte contre la fraude, Bilan 2015, bilan DNLF 2015.
http://www.economie.gouv.fr/files/files/directions_services/dnlf/ra-dnlf-2015-
bat%281%29.pdf
EMN Glossary 3.0, English version, October 2014.
https://ec.europa.eu/home-affairs/sites/homeaffairs/files/what-we-
do/networks/european_migration_network/docs/emn-glossary-en-version.pdf
French National Contact Point of the European Migration Network, Annual Policy Report on
Asylum and Migration 2015, Part2, April 2016
https://ec.europa.eu/home-affairs/sites/homeaffairs/files/what-we-
do/networks/european_migration_network/reports/docs/annual-policy/annual-policy-
10a_france_apr_part2_english.pdf
OCDE, Combatting the illegal employment of foreign workers, August 2000
http://www.oecd-ilibrary.org/social-issues-migration-health/combating-the-illegal-
employment-of-foreign-workers_9789264182394-en
OCDE, International Migration Outlook 2015, September 2015
http://www.oecd-ilibrary.org/social-issues-migration-health/international-migration-
outlook_1999124x
Rapport au Parlement sur les données de l’année 2015, Les étrangers en France, Treizième
rapport établi en application de l’article L.111-10 du Code de l’entrée et du séjour des étrangers
et du droit d’asile
Page 77 of 78
http://www.immigration.interieur.gouv.fr/content/download/100893/793682/file/Rapport-
INTV1700778X.pdf
2. Legislative texts
a) National legislation
Laws
Law No. 2016-274 of 7 March 2016 on the rights of foreigners in France.
https://www.legifrance.gouv.fr/affichTexte.do?cidTexte=JORFTEXT000032164264&categor
ieLien=id
Law No. 2007-672 of 16 June 2011 on immigration, integration and nationality.
https://www.legifrance.gouv.fr/affichTexte.do?categorieLien=id&cidTexte=JORFTEXT0000
24191380
Law No. 2006-911 of 24 July 2006 on immigration and integration.
https://www.legifrance.gouv.fr/affichTexte.do?cidTexte=JORFTEXT000000266495
Law No. 97-210 of 11 March 1997 on strengthening measures against illegal employment
https://www.legifrance.gouv.fr/affichTexte.do?cidTexte=JORFTEXT000000565041&categor
ieLien=id
Codes
Code on Entry and Residence of Foreigners and Right of Asylum (Code de l'entrée et de séjour
des étrangers et droit d'asile)
https://www.legifrance.gouv.fr/affichCode.do?cidTexte=LEGITEXT000006070158
Criminal Code
https://www.legifrance.gouv.fr/affichCode.do?cidTexte=LEGITEXT000006070719
Code on Social Security
https://www.legifrance.gouv.fr/affichCode.do?cidTexte=LEGITEXT000006073189
Labour Code
https://www.legifrance.gouv.fr/affichCode.do?cidTexte=LEGITEXT000006072050
Decrees, orders and circulars
Decree No. 2013-467 of 04 June 2013 on the amount of the special contribution introduced by
Article L.8253-1 of the Labour Code.
https://www.legifrance.gouv.fr/affichTexte.do?cidTexte=JORFTEXT000027506882&fastPos
=1&fastReqId=439284270&categorieLien=cid&oldAction=rechTexte
Circular of 28 November 2012 on the exceptional admission for residency of foreigners in an
irregular situation.
Page 78 of 78
http://www.interieur.gouv.fr/content/download/36914/279112/file/2012-circulaire-conditions-
demandes-admission-sejour.pdf
Decree No 2011-1693 of 30 November 2011 on the protection of the social and financial rights
of undocumented foreigners and the repression of illegal employment. https://www.legifrance.gouv.fr/affichTexte.do?cidTexte=JORFTEXT000024881074&dateTe
xte=20170306
b) European Directives
Directive 2009/52/EC of the European Parliament and council of 18 June 2009 providing for
minimum standards on sanctions and measures against employers of illegally staying third-
country nationals.
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2009:168:0024:0032:fr:PDF
![Illegal employment of Third-Country Luxembourg EMN NCP...Illegal employment of Third-Country Nationals in the EU Page 2 of 41 Executive Summary (Synthesis Report) [maximum 3 pages]](https://img.pdfslide.us/doc/110x75/5e95c79dbbb7eb5e492ef1d3/illegal-employment-of-third-country-luxembourg-emn-ncp-illegal-employment-of.jpg)
