Strengthening the rights of posted third-country nationals in their EU Member State of residence and employment

Abstract

This article questions the trend of admitting third-country nationals to an EU Member State for the purpose of posting them to another EU Member State. The reality of the workers concerned does not match the assumptions underlying the legal regime for intra-EU posting. As a result, it is easier to exploit their labour and their legal immigration status is jeopardised both during and after the posting. This also makes fictitious their ability to exercise rights that depend on this status, such as access to certain social security benefits. The trend of ‘labour immigration for the purpose of posting’ is fuelled by a complex and opaque interplay of regulatory frameworks and ambiguous judicial interpretation of key legal criteria for posting. Recent case-law might help to mitigate this trend. Also, a revised EU directive has potential to marginally improve the rights of posted third-country nationals in the EU state where they are admitted. However, we conclude that more thorough measures are needed.

Introduction

Within the EU, undertakings established in one Member State have the freedom to provide temporary services in another Member State. Employers can temporarily post their own workers to perform these cross-border services on the territory of the host Member State. While performing temporary work in the host country, the posted workers do not move their residence and normal place of work. Instead, they remain connected to their home Member State, where they have an employment contract with their employer and where they are expected to return to work after their posting. As is well-known, third-country nationals, even if they legally reside and work in one Member State, do not have the same rights as EU nationals regarding the freedom to move as a worker to other Member States. ¹ However, case-law opened the way for the posting of third-country national workers within the framework of the freedom for their employers to provide intra-EU services (for a recent critical review, see Davies and Kramer, in press). ² In this way, the Court of Justice of the European Union (CJEU) ‘essentially created a parallel system of mobility for third-country national labour migrants for whom the gates of Europe would otherwise remain locked to a great extent’ (Lens et al., 2022: 163; see also De Wispelaere and Rocca, 2023).

In recent years, the posting of third-country nationals has become a real trend. For instance, in 2020, almost six out of ten Slovenian employers posted third-country national workers to other EU Member States (De Wispelaere et al., 2022: 34). And the current share of third-country national workers in all workers posted to the Netherlands, Belgium and Austria is between 20 and 30 per cent (ELA, 2025: 30). As part of this trend, it has been observed that more and more third-country nationals are obtaining work and residence status in one Member State for the purpose of being posted to another Member State. Such a ‘posting route’ may serve to circumvent the strict labour migration rules for third-country nationals in the latter Member State and allows businesses to profit from the labour cost differentials across EU Member States (Danaj et al., 2023; ELA, 2025: 50; Lasek-Markey, 2023; Lens et al., 2022; Verschueren, 2024). Their combined statuses of ‘posted worker’ and ‘labour migrant’ make posted third-country national workers especially vulnerable compared with posted workers who are EU citizens. In one recent study, certain groups of posted third-country national workers were found to be ‘the most alienated and, therefore, much more susceptible to exploitation. Their vulnerable labour market position is exacerbated by their lack of host country context-specific knowledge, including language, willingness to accept poorer work conditions, and a high level of dependency on the employer’ (Lillie et al., 2022: 9; see also Lillie et al., 2025, in this issue).

Posted third-country national workers also depend on their employer for the renewal of their immigration status in the Member State they were admitted to (Danaj et al., 2021; European Commission, 2024: 168–175; Novitz and Andrijasevic, 2020; Rasnača and Bogoeski, 2023). If they lose their job, this can lead to the automatic loss of their right to stay, which can also mean the loss of certain social security rights (Bogoeski and Rasnača, 2023: 7). Worse, if authorities consider their posting to be fraudulent, not only employers but also third-country national workers themselves may be held liable and even run the risk of being banned from re-entering the EU (ELA, 2025: 45, 53–56; Lasek-Markey, 2023, 2024a; Rasnača and Bogoeski, 2023).

Previous research thus clearly and unequivocally points to the vulnerable situation of many posted third-country nationals, not only in the host Member State, but also in the Member State where they have been admitted to work and reside. In this article, we aim to substantiate the need to improve their position in the latter state by showing: (i) that the possibility of posting third-country national workers is not based on a deliberate, systematically designed legal instrument, but is a side effect of other legal frameworks, making it difficult to grasp; (ii) that the current trend of ‘labour immigration for the purpose of posting’ is fuelled by ambiguous judicial interpretation of key criteria for lawful postings, allowing employers to ignore or exploit them, which compromises the legal status of the posted third-country nationals in question; (iii) that recent case-law can mitigate this dubious trend and that a revised migration instrument might marginally strengthen the rights of posted third-country nationals returning to the EU Member State where they have a work permit. Nevertheless, more far-reaching reform is needed.

The article proceeds as follows. We begin by outlining the applicable EU legal framework. We then discuss case-law with either a facilitative or mitigating impact on the trend of admitting third-country national workers in one Member State for the purpose of posting them to another. This is followed by a brief exploration of a recently revised EU migration directive, for aspects that could improve the position of posted third-country nationals in the Member State where they are single permit holders. We conclude that stronger measures are needed and finish with some considerations in that regard.

The opaque legal foundation of the posting of third-country national workers

Posting (of both EU and third-country national workers) is a legal construct in which employment relationships and conditions are determined partly by the rules of the ‘home state’ and partly by those of the ‘host state’. Thus, the legal position of posted workers is complex, affected as it is by the legal systems of two states. They have their employment contract in their so-called EU home Member State, while they are posted to provide temporary services in a so-called EU host Member State. In the case of posted third-country nationals, their labour immigration status adds another dimension of complexity. There are now three states involved in their legal position: the non-EU home state from where they originate, the EU Member State that provides them with immigration status, and finally the EU host state to which they are posted. In this complex legal position several legal building blocks can be distinguished, which we will outline below.

First, there is the regulatory framework of EU and national migration law that allows third-country national workers to acquire legal status to enter, reside and work in an EU Member State. Several EU migration directives provide for this legal status and are meant to promote and regulate third-country national (labour) migration by minimum harmonisation of rights and procedures. ³ However, Member States are free to introduce national rules on top of that, as well as parallel national legislation. Generally, both EU and national labour migration policy is being geared towards attracting highly skilled, ‘desirable’ third-country nationals and limiting the entry of low- and medium-skilled migrants (Peers, 2022). The right to determine the volume of admissions for employment purposes of third-country nationals is explicitly left to the national level. ⁴ This means that Member States themselves decide to whom they shall grant access to their labour market and territory. Work and residence permits are therefore, in principle, valid only in the Member State that issues them. Notably, arrangements for legal entry for third-country national workers may also result from bilateral agreements between Member States and non-EU countries, eliminating or simplifying work permit requirements. For instance, Slovenia concluded such an agreement with Bosnia Herzegovina and Serbia (ELA, 2025: 20). And Poland has simplified work-permit procedures for third-country nationals from Ukraine, Belarus, Moldova, Armenia and Georgia (ELA, 2025: 19). ⁵

As stipulated in EU migration law instruments such as the Single Permit Directive (SPD), ⁶ third-country national workers should in principle be treated equally to national workers in their EU home Member State regarding working conditions, freedom of association, education and vocational training, recognition of diplomas and access to social security and tax benefits. However, Member States are free to limit some of these equal rights, for example according to the Single Permit Directive this is possible for single permit holders who have been employed for less than six months. Notably, linking equal treatment rights (partly) to the integration of third-country nationals has been criticised and challenged on the basis of EU anti-discrimination law (Baas, 2025, in this issue).

Secondly, after acquiring legal immigration status in an EU home Member State, the next set of rules comes into play if their employers based in that state wish to post third-country national workers to an EU host Member State to perform temporary work as part of a cross-border service. According to the Posted Workers Directive (PWD), ⁷ but dependent on national rules that allow or restrict this, the employer may also be a temporary work agency that puts the third-country national worker at the disposal of a user company in the host state. In practice, this happens frequently, often under substandard working conditions, as highlighted by the research already mentioned. The intra-EU posting of third-country national workers involves residence requirements in the host Member State, as further discussed below (for an overview of national rules, see Rasnača and Bogoeski, 2023). In contrast, EU host states may not require a new work permit on top of that status in the EU home Member State or impose other onerous administrative burdens. This was established in a judgment of the Court of Justice of the EU (CJEU) in the case Vander Elst. ⁸ According to this judgment and similar to posted workers with EU citizenship, posted third-country national workers who legally reside and habitually work in their EU home Member State are not considered to have access to the labour market of the EU host state. This is based on the assumption that after the posting these workers will return to their EU home state in order to work there again. Therefore, the EU host Member State is not allowed to require a work permit. The genuine link that a posted worker must have with his EU home Member State is codified in the Posted Workers Directive, which defines a posted worker as ‘a worker, who, for a limited period, carries out his work in the territory of a Member State other than the State in which he normally works’. ⁹

Thirdly, based on the (revised) Posted Workers Directive, posted third-county national workers are entitled to a package of mandatory labour standards in the EU host state regarding, for example, remuneration and paid leave. This package of host state labour law is expanded in situations of long-term posting (from 12 or 18 months onwards) and in situations of posted temporary agency work (Houwerzijl, 2024; Houwerzijl and Verschueren, 2024). Notably, host state law must be applied only if more favourable to the posted worker than the labour standards laid down in his employment contract, which is typically governed by EU home state labour law. Moreover, mandatory rules in the home state apply regarding form, alteration and termination of the employment contract and workers’ rights to information and consultation vis-à-vis their employer, as well as any occupational pension rights.

Fourthly, the social security coordination regulations stipulate that the posted worker continues to be affiliated to the social security system in the EU home state. ¹⁰ The criterion is that the (third-country national) worker is posted ‘on behalf of an employer which normally carries out its activities in the home state, provided that the anticipated duration of such work does not exceed twenty-four months and that he is not sent to replace another person.’ ¹¹ Thus, the employer must normally carry out its activities in the EU home state where the third-country national has been admitted to work. Also, during the posting, a direct relationship must continue to exist between the posting employer and his posted (third-country national) worker, and the posting cannot exceed an anticipated duration of 24 months (Houwerzijl and Verschueren, 2024). As for acquired social security benefits in the EU home state, these can be exported if the third-country national worker would return to his non-EU home state. In this regard, the rights of third-country national beneficiaries are equal to those of EU nationals that move to another country (Gellérné Lukács and Gyulavári, 2025, this issue). Most social security benefits can be exported, such as for old age and disability, but unemployment benefits are exempt from this because they are linked to being available for work in the labour market of the EU home state. ¹² Thus, if he returns to his non-EU home state, the third-country national risks losing certain acquired social security rights (for a survey of national practices: Bogoeski and Rasnača, 2023).

Altogether, the four legal building blocks dealt with above provide the legal foundations for the posting of third-country nationals. It is based on a complex interplay between many instruments of EU and national migration law, labour law, social security law and the employer’s freedom to provide services within the EU. Moreover, the possibility of intra-EU posting of third-country national workers (see the second legal building block above) is not based on a deliberate, coherently designed legal instrument, but results from EU case-law as a side effect of other legal frameworks. This makes its principles and underlying assumptions opaque and difficult to grasp. However, there are key criteria meant to prevent and tackle abuse and circumvention. This is where we now turn.

Key criteria for identification of genuine posting vis-à-vis modern reality

To facilitate monitoring and enforcement of the posting rules, the Enforcement Directive ¹³ provides indicators to check on so-called genuine posting. The indicators are meant to assist authorities of the EU host state, in close cooperation with their counterparts in the EU home state to check this, ‘where they have reason to believe that a worker may not qualify as a posted worker under the (revised) PWD’. The check should lead to an overall assessment of all factual elements involved in a specific case. There are two sets of indicators. ¹⁴ First, indicators to determine whether workers are genuinely posted. This includes indicators referring to their habitual country of work (the EU home state). Secondly, there are indicators to establish whether the employer genuinely performs substantive economic activities in their Member State of establishment (the EU home state).

For posted third-country national workers, a genuine posting implies that they not only have a right to work and reside in the EU home state on paper, but also have an employment contract for a real job in that country. ¹⁵ Therefore, it is logical that their employer should have real economic activities in the EU home state, otherwise the work permit would grant access to its labour market for work that does not exist there. Because genuine posting presupposes a period of work in the EU home state before and after the posting, it would also make sense if the labour immigration status of the posted third-country national were to be valid during a wider time frame than the period of posting abroad.

The indicators in the Enforcement Directive are based on a combination of the definitions of posting and posted worker laid down in the Posted Workers Directive and the conditions for genuine posting laid down in the social security coordination regulations. This promotes a harmonious application of the criteria across the legal areas of labour law and social security law. Notwithstanding this, the affirmation by these indicators of the traditional conception of posting as a linear movement from the habitual country of work to a temporary country of work and back again, is not consistent with the modern reality of many posted workers in labour-intensive, low-wage sectors (Bogoeski, 2024; ELA, 2025; Houwerzijl and Berntsen, 2020; Lasek-Markey, 2023, 2024a; Lillie et al., 2025, in this issue). According to a report by the European Labour Authority, fraudulent arrangements with third-country national posted workers may take various forms (ELA, 2023: 44–45). For example:

• (i) the worker is posted directly via a temporary work agency in one Member State to another Member State, without having resided or worked in the Member State for which they have documents;

• (ii) the posted worker comes directly from a third country to the host Member State;

• (iii) the posted worker does not return to the sending Member State but instead remains in the host Member State or returns directly to their country of origin; or

• (iv) the posted worker does not have a work permit or a residence permit in the sending Member State.

Recent case study-based research shows many other dubious posting configurations with third-country nationals after their arrival in the EU home Member State, where they often worked for some time on an informal basis or as (bogus) self-employed persons (ELA, 2025: 41–43, 50–52). In part, this gap between rules on paper and fraudulent arrangements in practice can be explained by the manifold monitoring and enforcement problems in a cross-border context, including difficult exchange of information and cooperation between authorities and the lack of agency of many of the posted workers involved (ELA, 2023; ELA, 2025; European Commission, 2024; see also Houwerzijl, 2024). Proper monitoring and enforcement, however, begin with the enforceability of existing rules. Below, we will show how ambiguous legal interpretations of key criteria for genuine posting undermine enforceability. They allow employers to exploit them to set up semi-legal posting constructs with third-country national workers. We will also show how strict interpretation can in turn improve the enforceability of the posting rules. Only a few notable cases will be discussed, as this suffices for our purposes (for more comprehensive discussion of relevant case-law, see Rennuy, 2021; van der Mei and van Ooij, 2022; Verschueren, 2024).

No operationalisation of the ‘habitual country of work’ criterion

A telling example of how attempts to effectively prevent fraudulent posting arrangements were thwarted by a dubious interpretation of key criteria for genuine posting is described by Rasnača (2020). According to information from the Latvian Labour Inspectorate, in 2020 there were multiple cases pending before the Latvian courts, including cases concerning third-country national workers who had migrated to Latvia and were then posted to other countries in the EU (Rasnača, 2020: 147). Originally, the CJEU Vander Elst judgment (mentioned above) was used by the Latvian authorities as a reference to decide at an early stage whether or not requested work permits could be assumed to be (ab)used for the mere purpose of posting. Practically, this meant that postings of third-country nationals to and from Latvia were based on confirmation by the posting employer that the worker is lawfully and habitually working for an employer in the Member State of admission. Moreover, substantive economic activities of the posting employer in this Member State were considered to be a prerequisite for having a habitual place of work and were deemed crucial to establish whether or not the posting is genuine, in line with the indicators in the Enforcement Directive, as mentioned above.

This assessment was also made in a case in which a Latvian company requested work permits for third-country nationals (Rasnača, 2020: 156–157). The permits were at first denied as the Latvian Office of Citizenship and Migration Affairs assumed that it would not be likely that the third-country nationals’ habitual place of work would be in Latvia. Although this is what the company had claimed, the regional court established that there was no proof that the company engaged in any economic activity in Latvia. Based on these facts, the Latvian court decided to deny the work permits as it was clear that the company in fact intended merely to post these workers abroad.

However, the case was appealed and ultimately the Latvian supreme court ruled that the fact that the company had indicated that the work permit beneficiaries would work in Latvia had to prevail, even though in reality they would actually (only) be working abroad. The decision was underpinned with reference to the Vander Elst judgment and subsequent CJEU case-law. In line with that, denying work permits would be an unjustified restriction of the free movement of services in the interpretation of Latvia’s highest court. This line of reasoning has been upheld in further cases brought before Latvian courts (Rasnača, 2020: 157). The expansive reasoning of the Latvian supreme court (without asking a preliminary question to the CJEU) showcases how judicial interpretation has facilitated the posting of third-country nationals without a habitual country of work by employers without substantial economic activities in the country of establishment becoming accepted practice.

Admittedly, the CJEU may have encouraged the reasoning of the Latvian supreme court by dismissing national measures that operationalised the criterion of a ‘habitual place of work’. For instance, Austria used to require a period of prior employment of six months in the home EU Member State before a third-country national worker could be lawfully posted, but according to the CJEU this was an unjustified restriction of the freedom to provide services (see more extensively on this case-law: Verschueren, 2024). ¹⁶ What makes this case-law ambiguous is that the CJEU on the one hand deemed that lawful (genuine) posting involves posted (third-country national) workers only temporarily performing services in the EU host state and carrying out their main activity in the EU home state, but on the other hand did not give concrete guidance to Member States on how to interpret and operationalise the criterion of a habitual country of work.

Strict approach to the criterion that the posting employer must engage in real economic activities

As already discussed, one of the genuine posting indicators concerns the real economic activities of the posting employer. This is based on the posting rules in the social security coordination regulations which require that the employer normally carries out significant activities in his Member State of establishment (EU home state), beyond purely internal management activities. In the case Team Power, the CJEU assessed whether a Bulgarian employer running a temporary work agency met this requirement by taking ‘all criteria characterising the activities carried out by the undertaking in question’ into account. ¹⁷ Importantly, Team Power was not deemed a letterbox company, as, in addition to internal management, it also selected and recruited workers in Bulgaria. However, the employer only posted its temporary agency workers to user companies in Germany. As only the latter actually generate turnover and profit for temporary work agencies, the CJEU ruled that a company such as Team Power can benefit from the posting provisions in the coordination regulations only if it also assigns temporary agency workers to user companies in the EU home state (Bulgaria), instead of only posting them to an EU host state (Germany). According to the CJEU, if the selection and recruitment of the workers in the home state had been sufficient to satisfy the criterion of ‘normally’ carrying out activities in that state, it would have allowed and encouraged the business to go ‘forum shopping’ and exploit differences between national social security systems.

While this case did not deal with third-country national posting, it clearly has a discouraging impact on the trend of ‘labour immigration for the purpose of posting’, which is based on providing third-country nationals in their EU home state with the right to work there only on paper. The Team Power ruling makes it clear that labour status in the EU home state cannot merely be used as a ‘hub’ for posting to the EU host country. Moreover, the case draws attention to the nature of the service provided by temporary work agencies. The fact that they post temporary workers to make them available in the EU host state’s labour market is difficult to reconcile with the assumption underlying the concept of genuine posting, namely that posted workers do not enter that labour market.

Dilution of the criterion of continuous affiliation to the home state’s social security

Another criterion for genuine posting in the coordination regulations stipulates that the posted worker should remain socially insured in the EU home state during the posting. To operationalise this criterion, the national social security authorities, represented in the so-called Administrative Commission, agreed on the (non-binding) policy rule that a person should be attached to a social insurance system at least one month before being posted, while shorter periods were to be evaluated on a case-by-case basis. For third-country nationals this agreed policy implies that they should at least legally reside one month in the home Member State in order to be considered as affiliated to its social security system immediately before being posted to the host Member State.

This requirement was interpreted rather leniently by the CJEU in Walltopia, ruling that the worker involved did not have to be affiliated to Bulgaria’s social security system as an employee (either of the posting company or of another employer established in that state). Nor was it a problem that the person was not actually insured (because he had not paid his health insurance premiums), as this was a matter of national competence. Instead, the CJEU deemed it sufficient that a third-country national be subject as a resident to the legislation of the EU home Member State prior to the posting. ¹⁸ The CJEU clarified that when a person is recruited in one Member State with a view to being posted as a worker to another Member State, the moment ‘just before the start of his employment’ must be regarded as the start of the affiliation to the social security legislation of the Member State where the third-country national was admitted (ELA, 2023: 27–28).

In the Walltopia judgment therefore a very ‘thin’ affiliation of the third-country national posted worker to his EU home state’s social security system was upheld, which is likely to encourage the trend of ‘labour immigration for the purpose of posting’. A pending proposal to amend the EU coordination rules aims to change the impact of this case-law (Houwerzijl and Berntsen, 2020; Rennuy, 2021; Robin-Olivier, 2022; van der Mei and van Ooij, 2022; Verschueren, 2024). ¹⁹ One requirement is the introduction of a minimum period of three months of affiliation to the social security system in the EU home state before a third-country national worker can be posted to another Member State. This would help to make concrete the concept of a habitual country of work and strengthen the social security rights of the third-country national worker before being posted.

Weakening and re-tightening of residence requirements in the host state

Another case with strong practical impact concerned the social security position of third-country national workers assigned to work in two or more Member States. In Balandin, ²⁰ the employer was established in the Netherlands, but the third-country national workers only stayed each year for around six weeks in that country on the basis of a Schengen visa, based on an exception for artists in Dutch labour migration regulation. From the Netherlands, the third-country national workers were sent by their employer to temporarily work and reside in different Member States. A highly critical Advocate-General (AG) observed in his Opinion that the employer was able to obtain single permits for their workers, based on the Dutch implementation of the Single Permit Directive, but instead attempted to rely on a combination of exceptions in EU and national law, with the result that the third-country national workers in question could not rely on rights that they would otherwise enjoy under EU law. The AG found it absurd that reliance on one of the fundamental freedoms of EU law could be used to circumvent one of the main objectives of EU labour migration policy and the coordination regulations, which is to provide third-country nationals with rights and obligations similar to those of EU citizens.

Moreover, the AG argued that an instrument of EU law should not be interpreted in such a way as to allow the abuse of rights guaranteed by EU law. ²¹ Nevertheless, the CJEU ruled in favour of the employer by considering that despite their short temporary stay in the Netherlands as state of first entry, this was not an obstacle to deeming the third-country national workers ‘legally resident’ in that country for the purpose of affiliating these workers to the Dutch social security system (van der Mei and van Ooij, 2022). Interestingly, this judgment seems to have encouraged an increase in posting third-country nationals via other EU home states to the Netherlands as EU host state, on the basis of a Schengen visa, as it confirmed to practitioners that there was a (seemingly) legitimate way to overcome more daunting criteria for a residence permit.

However, in a recent judgment in the case SN and Others, ²² the CJEU took a restrictive turn in its answer to the question of whether an EU host state can demand a residence permit for posted third-country nationals after the expiry of a Schengen visa. In this case a Slovakian employer had posted 44 of his Ukrainian employees to the Netherlands. The Slovak employer anticipated that the postings would be shorter than three months, which meant that the posted third-country national workers could rely on a Schengen visa for their temporary stay in the Netherlands. Therefore, the Slovakian employer did not apply for residence permits for their posted workers in the Netherlands (a practice encouraged by the Balandin judgment, discussed above). When eventually it became evident that the postings would exceed the anticipated duration, the Slovak employer applied and was granted residence permits in the Netherlands for each of its posted third-country national workers. The duration of the permits was restricted to the duration of the residence permits issued by Slovakia (the Member State in which the third-country national workers were permitted to work before being posted).

As a consequence, the duration of the Dutch residence permits was shorter than the duration of the service provision activities for which the third-country national workers were posted. The CJEU ruled in SN and Others that the condition that posted third-country nationals require a residence permit in the host state after the expiry of a Schengen visa is permitted. It also held that the Netherlands as host state is allowed to limit these residence permits for posted third-country nationals to the duration and validity of the residence permit in Slovakia as home state and ultimately to a maximum of two years, irrespective of the duration of the cross-border provision of services. The Dutch legislature has aligned the two-year limitation for residence permits for posted third-country national workers with the period that they remain socially insured in the home state (namely if the anticipated duration of the posting does not exceed 24 months).

Notably, one of the main reasons the CJEU approved the national measures was that they support the position of posted third-country national workers, in particular the exercise of their right to legal certainty about the legality of their stay during posting. Pointing to the fact that their residence status in the EU home state is valid only there, ²³ the CJEU found it justified that EU host states require that posted third-country national workers obtain a secure document issued by their own services to prove that they are residing legally in the EU host state during their posting. The fact that the measures facilitate administrative checks, in particular with regard to conditions of residence, authorisation to work and social security coverage, was also accepted as a reason for impeding the freedom to provide services (Lasek-Markey, 2024b; Verschueren, 2024). ²⁴

The potential of the Recast Single Permit Directive to strengthen rights of posted third-country nationals

Finally, we briefly explore aspects of the recently revised Single Permit Directive (Recast SPD), ²⁵ which have the potential to improve the position of posted third-country nationals in their EU home Member State (for a more comprehensive account, see De Lange, 2024). One of the goals of the Recast Single Permit Directive is to improve the equal treatment of third-country nationals and to better protect them from labour exploitation. As clarified in the preamble, posted third-country national workers continue to enjoy equal treatment with nationals of the state in which they are single permit holders regarding the terms and conditions of employment not affected by host state law during their posting. ²⁶ As already explained, according to the Posted Workers Directive, this concerns mandatory rules on the conclusion, alteration and termination of the employment contract, workers’ rights to information, consultation and participation, and possible occupational pension rights. Moreover, pursuant to the coordination regulations, before being posted the third-country national single permit holder should be affiliated to the social security system of their EU home state and thus covered by the right to equal treatment in the Recast Single Permit Directive in this regard as well.

In terms of strengthening information rights, which is of major importance to posted third-country nationals as they often seem unaware of their rights, the Recast Single Permit Directive makes clear that employers are obliged to inform their third-country national (posted) workers of the essential aspects of the employment relation and of any change in them. ²⁷ Member States are also allowed to complement the uniform format for residence permits, ²⁸ with additional information related to the single permit such as name and address of employer, place of work, type of work, working hours and remuneration. This information may provide clarity about the habitual place and type of work of the posted third-country national in their EU home state.

Moreover, posted third-country national workers can in principle benefit from the right that the Recast Single Permit Directive gives them to change their employer and be allowed to retain their residence for at least three months to look for new job opportunities. This new right clearly diminishes the dependency on one employer, although states may require the third-country national worker to work a period for the first employer before they can change employers. This period may not exceed six months. Also, a valid single permit should not be withdrawn for at least three months if the third-country national worker becomes unemployed, ²⁹ or not for six months if the third-country national has been a holder of the single permit for more than two years.

However, the end date of the permit determines the extent to which the third-country national worker can benefit from these new rights. For posted third-country national workers as in the case SN and others, who were hired merely for the purpose of posting, the validity of their permit in the EU home state will often not exceed the period of posting in the EU host state. This means that they will not be allowed to return to the EU home state and benefit from a job search period after their posting ends. Also, they will lose acquired unemployment benefit rights as these benefits are not exportable.

All in all, the Recast Single Permit Directive might marginally improve the position of third-country national posted workers in their EU home state, but not to such an extent that their immigration status guarantees them the benefits of having a real habitual place of work, as opposed to only a notional one ‘on paper’.

Conclusions

We have shown that the possibility of posting third-country national workers is a side effect of other regulatory frameworks rather than a deliberate and coherent construction. On this complex and opaque foundation and the ambiguous interpretation of key legal criteria for posting, the dubious trend of ‘labour immigration for the purpose of posting’ was built. As discussed above, some CJEU judgments seem to have facilitated this, whereas two more recent judgments may help to curb this unlawful trend. Finally, we explored some aspects of the Recast Single Permit Directive that could help to improve the position of posted third-country national workers in the Member State in which they are a single permit holder.

Despite modest developments in the right direction, we think that more needs to be done to enhance the exercise of rights by third-country national posted workers to legal certainty about their immigration status and to their acquired social security rights. A major problem with the ‘labour immigration for the purpose of posting’ trend is that the workers concerned often have no guarantee of remaining in the EU home state both before posting and after the posting is finished. The recent judgment SN and others only makes clear that the right of residence in the EU home state cannot be shorter than the right to stay in the EU host state during the posting. Moreover, as nothing has changed in terms of the vagueness of the habitual country of work concept, the risk of unlawful postings has diminished only to some extent, as it was clarified in Team Power that the employer must have real economic activities in the state in which the third-country national worker was hired in order to be posted.

So, what more can be done in this regard? In our opinion, both legislative action and increased monitoring and enforcement initiatives are necessary. The latter can build on the CJEU’s recent acknowledgment of the right to legal certainty of posted third-country national workers. This should stimulate both host and home state authorities to step up their efforts to target unlawful posting situations, preferably supported by the European Labour Authority. To do this in a manner that benefits the non-genuinely posted third-country national workers, it should be possible to extend their immigration status in the EU home state in order to prevent them from losing their right to stay and work after the detection of fraudulent third-country national postings. Protecting them in this manner would be in line with the guarantee in the revised Posted Workers Directive that the worker involved should benefit from the detection of an unlawful posting if their employer ‘improperly or fraudulently’ created the impression that the worker’s situation was covered by the Posted Workers Directive. The provision in the Recast Single Permit Directive that allows for the permit not to be withdrawn if the worker has experienced particularly exploitative working conditions goes in the right direction, but will fall short of truly protecting third-country national posted workers in many cases.

With regard to the need for legislative action, Verschueren (2024) points to the possibility of creating a specific legal instrument regarding third-country national postings within the EU, based on a former, never adopted proposal by the European Commission. This should clarify a crucial element of genuine postings, namely that this must go hand in hand with having a habitual country of work. This can be done by introducing the requirement of pre-posting and/or post-posting periods of work and residence in the EU home state and thus affiliation to the social security system both pre-posting and post-posting, which would increase the chance that the third-country national workers concerned can really exercise these rights. Moreover, a limitation or ban on the posting of third-country national workers by temporary work agencies could be part of the legal instrument as their services are in fact making posted third-country national workers available on the labour market of the EU host state, which is in breach with the Vander Elst criterion that workers do not enter the labour market of the state to which they are posted (Verschueren, 2024). In our opinion, this idea merits further study.

At the same time, an alternative option could consist of reviewing and enhancing existing legal instruments. This would have the advantage of covering not only the position of posted third-country national workers, but also of (vulnerable) posted workers with EU citizenship. This is also important in light of possible future enlargements of the EU, as some of the currently posted third-country national workers would then become EU citizens. Although the change of citizenship will benefit them, it will not banish all their vulnerabilities to exploitation.

Apart from the pending proposal to revise the coordination regulations, one option could be to review the Enforcement Directive, as many of its monitoring and enforcement measures need strengthening anyway, including the indicators of genuine posting already discussed. With regard to postings via temporary work agencies, a more generally applicable restrictive approach could be introduced through a revision of the Temporary Agency Directive. ³⁰ Its scope could then be broadened to include other labour market intermediaries (Zekić, 2024), and new rules could be introduced for, among other things, fair recruitment of (posted) agency workers and clarification of the possibilities of banning or limiting temporary agencies in certain sectors. Finally, with regard to improving the sanctioning of fraudulent third-country national postings, enhancing the Employers’ Sanction Directive ³¹ might be an option, too.

Either way, strengthening the rights of posted third-country national workers not only in their EU host state but also in the EU home state where they are admitted to work, should be high on the political agenda. In that regard it is helpful that two influential reports have framed the position of third-country national posted workers as one of the ‘most pressing’ issues with regard to the objective of fair mobility and migration in the EU. ³²