European Union approaches to illegal migration and the regularisation option

The following review³¹¹does not purport to provide a comprehensive review of European Union policies on illegal migration. Certain aspects of broader European Union policies on illegal migration, notably return policies, have already been addressed in the preceding chapters and will be taken up again in §8. The objective of this chapter is more limited: it aims to provide an overview of the evolution of Commission thinking on the role of regularisation as a policy tool and thus essentially is intended as a background to the current discussions. Suffice it to say that the interlinkages between broader policies on illegal migration and regularisation have so far received rather little attention and, in particular, this issue has not been addressed explicitly in any of the communications on EU policies concerning illegal migration.

As has been noted in §2, the Commission has for some time taken an interest in regularisation policy.

Thus, the first major comparative study on regularisation practices in selected EU Member States (conducted by the Odysseus network) was financially supported by the European Union and indicated that regularisation was, if not an issue regulated at the European level, clearly an issue of concern in the context of the development of European Union migration policy. However, the interest in regularisation did not immediately translate into an explicit and open consideration of regularisation as a policy option in the Commission’s proposals for the elaboration of policies on illegal migration.

In its 2000 Communication on a community immigration policy formulated subsequent to the Tampere council conclusions, the Commission stressed that efficient management of migration

“requires action at all phases of movement of persons, in order both to safeguard legal channels for admission of migrants and for those who seek protection on humanitarian grounds while at the same time combating illegal immigration.” ³¹² The Communication thus sees policies on illegal migration as a prerequisite for the development of more open policies on legal migration. The communication highlights the complexity of illegal migration and stresses the need for a comprehensive approach, without, however, mentioning regularisation as part of a possible policy approach: “The phenomenon of illegal immigration consists of a number of interlinked phases and each has to be tackled

systematically with specific measures. These include action in source and transit countries, police co-operation to pool knowledge of trafficking co-operations which by their nature are international, action at the point of entry including border controls and visa policies, legislation against traffickers, help for victims and their humane repatriation.”³¹³

Although repeatedly referring to regularisation practices of Member States, the communication refrains from an evaluation of whether regularisation can be an effective policy tool to address irregular migration. By contrast, the Commission communication on a common policy on illegal migration adopted a year later seems to suggest that, generally, regularisations are not an appropriate

311 See for an earlier review Verbruggen, N. (2005): ‘General Policy Trends Regarding Undocumented

Immigration in the EU’. In:Heckmann, F., Wunderlich, T. (eds.): Amnesty for Illegal Migrants? Bamberg: efms pp. 33-37

312 Communication from the Commission to the Council and the European Parliament on a Community immigration policy. COM (2000) 757 final, p.12

policy instrument and provides a principled argument that “[i]llegal entry or residence should not lead to the desired stable form of residence.”³¹⁴ In the Commission’s view, demand for low skilled workers and ready access to undeclared work are major factors driving illegal migration. Nevertheless, the communication argues, “illegal residents cannot be considered as a pool to meet labour shortages.”³¹⁵ As a corollary, the emphasis of the communication’s policy proposals lies in strengthening border management, including strengthening the common visa policy and adopting other preventative measures, improving and strengthening information exchange mechanisms and the development of common policies on readmission and return.

However, the Communication stresses that the fight against illegal migration should not compromise the ability to provide protection to those in need of international protection and observation of the rights of particularly vulnerable groups. “Measures relating to the fight against illegal immigration have to balance the right to decide whether to accord or refuse admission to the territory to third country nationals and the obligation to protect those genuinely in need of international protection.(…) [W]hatever measures are designed to fight against illegal immigration, the specific needs of

potentially vulnerable groups like minors and women need to be respected.”³¹⁶

Whereas a subsequent Communication on policies on illegal migration adopted in 2003 basically follows the same line of thinking,³¹⁷ the Commission Communication on Immigration, Integration and Employment³¹⁸ adopted in the same year explicitly discusses regularisation as a possible policy option and thus diverges from the stance adopted in the two previous communications. In particular, it discusses regularisation in the context of broader policies on integration, arguing that “integration policies cannot be fully successful unless the issues arising from the presence of [illegal immigrants]

are adequately and reasonably addressed.” Thus, the Communication values the possible role of regularisation to integrate illegally resident third country nationals but also warns that regularisation may encourage future illegal immigration.³¹⁹ This – more positive – approach towards regularisation is also adopted in the Commission’s Study on the links between legal and illegal migration, published in 2004.³²⁰ The study acknowledges that “for pragmatic reasons the need may arise to regularise certain individuals who do not fulfil the normal criteria for a residence permit.” The study notes the different grounds on which regularisation measures have been implemented and observes the close connection of regularisations on protection grounds and for humanitarian reasons with the asylum system, while noting that “large-scale” regularisation on employment grounds, amongst others, also indicates the presence of a certain demand for unskilled workers that cannot be satisfied by legal

314 Communication from the Commission to the Council and the European Parliament on a common policy on illegal immigration COM (2001) 672 final, p.6

315 Ibid., p. 6

316 Ibid., p. 7

317 Communication from the Commission to the Council and the European Parliament in view of the European Council of Thessaloniki on the development of a common policy on illegal immigration, smuggling and

trafficking of human beings, external borders and the return of illegal residents COM(2003)323) of 3 June 2003

318 Communication from the Commission to the Council, the European Parliament, the European Economic and Social Committee and the Committee of the Regions on immigration, integration and employment, COM (2003) 336 final

319 Ibid., pp. 25-26

320 Communication from the Commission to the Council, the European Parliament, the European Economic and Social Committee and the Committee of the Regions. Study on the links between legal and illegal migration.

COM (2004) 412 final

immigration.”³²¹ Finally, the study notes some positive implications of regularisation programmes, including better population management, reducing undeclared work, and increasing tax revenues and social security payments. The study, however, also notes that the (long-term) effectiveness of

regularisation measures has been questioned and that there may be other negative consequences.

Despite these words of caution, the overall evaluation of regularisation measures in the study is positive.

In its Communication of 2006³²² on policy priorities in the fight against illegal immigration of third-country nationals, within which the present study was announced, the approach towards

regularisation, by contrast, is again more reserved. The Communication notes that large-scale regularisations, in the context of the abolition of internal controls in the Schengen area and the introduction of a right to freedom of movement for long-term residents, may have implications for other Member States and proposes the establishment of a Mutual Exchange Mechanism (subsequently established). While generally indicating a more reserved approach towards regularisation, the

relevant section of the Communication also provides an important justification for developing a policy on regularisation at the European level, which would leave open the option of undertaking

regularisation measures. Thus, the Communication states that it is “the difficulties in tolerating the sustained presence of significant numbers of third-country illegal immigrants on their territories”³²³ (our emphasis) which have led some Member States to implement regularisation measures. By implication, the Communication recognises that the sustained presence of undocumented migrants should indeed be considered a problem. Although the Communication, like previous communications and measures adopted by the European Union, clearly signals a preference for return, at the same time it suggests that inaction – in the event that return cannot be effected – is clearly not a viable option.

In the most recent Communication on principles, actions and tools for the further elaboration of a common European immigration policy of June 2008,³²⁴ however, the reservation about large-scale regularisations is repeated and phrased in an unusually open manner, while regularisations are otherwise not discussed in any of the concrete measures suggested under the heading “Security – effective fight against illegal immigration”. Thus, the Communication argues that “[i]ndiscriminate large-scale mass regularisations [sic] of immigrants in an illegal situation do not constitute a lasting and effective tool for migration management and should be prevented.”³²⁵

A similar attitude towards regularisations – on the whole – also prevails in opinions expressed by the European Parliament. In the opinion of the Civil Liberties Committee, regularisations are “quite often a signal of lack of appropriate measures in place to deal with a phenomenon which forms part of

321 Ibid., p. 10

322 Communication from the Commission on Policy priorities in the fight against illegal immigration of third country nationals, COM (2006) 402 final, pp. 7-8

323 Ibid., p. 7

324 Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions. A Common Immigration Policy for Europe: Principles, actions, and tools. Com (2008) 394/4.

societies in most Member States.”³²⁶ The European Parliament thus believes that “en masse

regularisation of illegal immigrants should be a one-off event since such a measure does not resolve the real underlying problems.”³²⁷ Furthermore, effective return policy is seen as one of the factors liable to deter illegal migration. In this sense, the Committee clearly supported the adoption of the

’Return Directive”, defining at the European level the rules and conditions governing a policy on return.³²⁸ Regarding the readmission of irregular migrants, it calls on the Council and the Commission to develop agreements with third countries concerned.³²⁹

The European Parliament report also includes the opinions of the Foreign Affairs and the

Development Committees. According to the Foreign Affairs Committee, “Member States should not adopt national measures regularising the situation of illegal immigrants because this creates a suction effect.”³³⁰ The Development Committee does not have any direct position on regularisation, but it asks the Commission and Member States, “in partnership with countries of origin, to invest resources in information campaigns in the countries of origin of illegal immigrants in order to warn them of the physical risks and dangers of migrating illegally and of subsequent marginalisation in countries of destination.” ³³¹ Thus, regularisation is clearly not a preferred option for the Parliament.

This said, the current shift towards a more negative attitude vis-à-vis regularisations, which is also reflected in the discussions surrounding the debate on the European migration pact, seems to insufficiently take into account the two contrasting ‘logics’ of regularisation measures that we have identified in the review of earlier studies on regularisation practices. In our conclusions to §2 we distinguished between (1) an employment and labour market policy driven logic (which often involves the regularisation of large numbers of persons) and (2) regularisation used as a corrective policy instrument, which often follows a human rights based and protection-oriented rationale or broader considerations of legal principles and due process of the law. The current discussions, however, mainly seem to refer to large-scale regularisation implemented on employment grounds.

Indeed, as our review of policy positions of relevant civil society actors in §5 has shown, there is a broad consensus that ultimately, large-scale regularisations used in lieu of labour market and labour migration policy indicate policy failure and, in principle, should be avoided. However, there is disagreement whether regularisation as a policy tool can be simply disposed of, as long as alternative approaches – for example, fighting undeclared work and systematically returning failed migrants – do not lead to the desired results.

With regard to the second logic – regularisation as a complementary measure used as redress against administrative deficiencies (e.g. lengthy procedures) and for humanitarian and protection-related reasons – the issues at stake are, we argue, quite different. First, regularisations can, but need not,

326 EP, Committee on Civil Liberties, Justice and Home Affairs, 17 September 2007, Report on policy priorities in the fight against illegal immigration of third-country nationals (2006/2250(INI)), Rapporteur: Javier Moreno Sánchez. Available at:

http://www.europarl.europa.eu///sides/getDoc.do?type=REPORT&language=EN&reference=A6-2007-0323, para. 58

327 Ibid.

328 Ibid., para. 67-68

329 Ibid., para. 70

330 Ibid., para. 16

331 Ibid., para. 11

involve large numbers. Secondly, the use of regularisation is not necessarily indicative of broader policy failures³³² but essentially reflects the need for complementary, corrective instruments which allow states to respond to particular situations in a flexible manner. Thirdly, and most importantly, this type of regularisation typically involves regularising persons in an irregular situation as a matter of principle and rights. This perspective on regularisation has been largely ignored in current debates on regularisation policy in the European Union. Indeed, as we argue in the following, there are certain principles built into European migration policy which would lend themselves as guiding principles for developing European Union policies on regularisation.

7.2 General objectives and normative principles underlying the European