Avoiding the creation of illegal immigrants

The assumption is frequently made that immigrants with an irregular status are in such a situation through crossing a border illegally, breach of visa conditions, or rejection of asylum applications.

Table 1, above, gives an indication of the main categories of illegal entry, residence and employment.

Although the majority of irregular residents participating in regularisation programmes are in the above categories, a significant minority (varying by country of residence and origin) is in an irregular status for other reasons. These are shown in Table 2, as the bottom two rows. We classify these categories as ‘created illegal immigrants’, for which state policy is primarily responsible. Below, we identify some specific cases.

3.3.3.1 Persons whose residence permits have expired, but they remain in employment

This occurs for a variety of reasons directly emanating from state procedures. First, weak bureaucracy and inefficiency in residence or work permit procedures can result in long delays and irregular status – particularly where permits are of short duration (1 or 2 years). Secondly, onerous obligations for the renewal process may lead to immigrants being unable to satisfy those conditions; such obligations include

i. the requirement of a full-time employment contract

ii. the payment of social insurance as if in full-time employment¹²⁹ iii. very high application fees for residence/work permits¹³⁰

128 In Austria, for example, NGOs, alongside other stakeholders, are represented in the Advisory Council on Asylum and Migration Affairs which (as two separate institutions) was first created by the 1997 Aliens Law.

The Advisory Council was involved in decisions on humanitarian stay in an advisory role between 1998 and 2005. Apparently its recommendations were largely followed by the Ministry of the Interior (Interview, Karin König, Vienna City Administration, 27 February 2008).

129 In Greece, the average annual payment of social insurance by TCN workers in the construction sector exceeds that made by Greek workers, but is still insufficient to satisfy the criterion of full-time employment.

130 Application fees for residence permits range from €15 in Italy, €50 in Germany up to €900 in Greece (long-term) and €1,078 in the UK (indefinite leave to remain). Excessive fees for residence permits are proscribed in both the European Convention on Establishment (ETS 019) and the European Convention on the Legal Status of Migrant Workers (ETS 093). Article 21(2) of ETS 019 states that the amount levied should be “not more than the expenditure incurred by such formalities”. ETS 093 goes further, and states in Article 9(2) that residence permits should be “issued and renewed free of charge or for a sum covering administrative costs only”. Article

iv. the requirement to appear in person, or to queue, taking up many working days when the employee is not granted permission to do so by the employer

v. unnecessary documentation, often requiring costly official translations and copies, when the state bureaucracy either already has such documentation or does not need it.

In our view, such causes of illegal residence are needless and require immediate corrective action in policy and bureaucratic implementation.

Related proposal(s): Option 10a

3.3.3.2 Persons who migrated as minors or were born on the territory

In a considerable number of EU countries (and our surveys did not specifically focus on this issue), it is evident that there is a serious problem with children who have been born on the territory and could not receive the citizenship of the host country, who migrated as children accompanying their parents, or who arrived as unaccompanied minors and were institutionalised. In the Greek regularisation of 2005, 13.1% of illegal immigrants awarded legal status were children under 16, and 3.9% of

recipients of 1-year individual humanitarian cases were under 16.¹³¹ In France, residence permit data for 2006 show that 53% of those granted a permit on the basis of residence >10 years were aged 18-24: presumably, they had migrated to France as children <14.¹³² Similarly, a preliminary analysis of regularisation data on persons regularised in Belgium in 2005 and 2006 on the basis of article 9 of the Law of 15 December 1980 (as amended) shows that roughly 30% of all persons regularised were in the age group 0-19 of which about 23% were in the age group 0-14.¹³³

In all cases, upon reaching the age of majority such children are required to have their own residence permit: in many EU Member States, this results in an illegal status and even deportation orders against individuals who grew up or were actually born in the country. In our view, given that all Member States have ratified the UN Convention on the Rights of the Child, this is a prime area for EU legislation to protect the following:

i. the rights of children born in the territory who reach the age of majority

ii. the rights of children of irregular migrants, or who arrived as unaccompanied minors Related proposal(s): Option 6b

10 of the Proposal for a Council directive on a single application procedure for a single permit for third-country nationals to reside and work in the territory of a Member State and on a common set of rights for third-country workers legally residing in a Member State (COM (2007) 638 FINAL) contains a similar clause.

131 See REGINE country study on Greece.

132 See REGINE country study on France

133 Fernando Pouwels, ‘Data aanvraag KSZ-DVZ’, presentation at International Seminar on Longitudinal Follow-up of post-immigration patterns based on administrative data and record-linkage, Belgian Federal

3.3.3.3 Persons whose refugee status has been withdrawn

By its very nature, refugee status is a temporary, transitory status which eventually should lead to either ‘local integration’ (including acquisition of citizenship) or repatriation.¹³⁴ Against this

background, article 11 of Council Directive 2004/83/EC¹³⁵ (‘Qualification Directive’) defines a set of conditions under which refugees cease to be refugees.¹³⁶ These include return to the country of nationality or previous residence from which he or she has fled, re-acquisition of his or her former nationality, acquisition of a another states’ nationality and, importantly, if the reasons for granting a refugee status cease to exist. In the latter case, the expectation is that (former) refugees will leave the country of asylum, either voluntarily or under compulsion.¹³⁷ Withdrawing refugee status without consideration of the feasibility of return, however, risks systematically creating a semi-legal (non-deportable) category of aliens.¹³⁸ The Commission proposal to extent the scope of the Long-term Residence Directive to persons under subsidiary protection and refugees can be seen as a sensible first step, but it does not provide any mechanism for persons resident for less than five years (see also below, §3.3.5).

Related proposal(s):Option 8

3.3.3.4 Retired persons with limited pension resources

Third country nationals who are dependent on pension arrangements external to the EU are

particularly vulnerable to exchange rate fluctuations, as well as to inadequate uprating of benefits for satisfying cost of living increases in their country of residence. These problems are further

compounded when Member States set minimum resources levels at a high rate, thus disqualifying retired TCNs with low pensions from lawful residence. In the case of future migration flows, the high personal resources requirement may well be prudent public policy; a distinction has to be drawn between potential migrants and those with many years of residence. There is little to be gained from

134 The Commissions Policy Plan on Asylum underlines the importance of resettlement the third ‘durable solution’ as an instrument of EU asylum policy (see Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of Regions, Policy Plan on Asylum: An Integrated Approach to Protection across the EU. Brussels, 17 June 2008,

COM(2008)360). Although resettlement is an important instrument of asylum policy in a global perspective, it mainly applies to insecure or overburdened first countries of asylum outside the Union context. Analytically, it is in itself not a durable solution in the same sense as the other two durable solutions; also at the end of resettlement, there should be either repatriation or local integration.

135 Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted

136 Article 14 in turn defines conditions for the revocation of refugee status on exclusion grounds (as defined by Article 12).

137 It should be noted that although most Member States do have rules on the loss of refugee status, it seems that few countries systematically review refugees’ status in respect to whether the grounds for granting refugee status still exist.

138 In Germany, for example, refugee status is granted for three years, after which a case is reviewed as to whether the grounds of granting refugee status still apply. In a significant number of cases, refugee status is withdrawn, because of changed circumstances in the country of origin. However, the majority of former refugees apparently remain in the country under toleration status (comment, Harald Lederer, Federal Office for Migration and Refugees, asylum and refugees working group, 2^nd official PROMINSTAT workshop, 12-13 June 2008, Bamberg).

denying residence permits to existing residents over the age of retirement: it merely creates yet another category of ‘illegally staying’ that is probably non-deportable anyway. In line with ECHR jurisprudence conferring rights on legal or illegal residents (see §6.2), the minimum resources provision of the EU long-term permit should be dropped for pensioners already residing on the territory.

Related proposal(s):Option 6a, 10