Regularisation and irregular employment

According to the International Labour Organization (ILO), regularisation programmes can serve to combat the informal labour market and can bring economic benefits for the host country in terms of increased taxes and social security contributions. Nevertheless, they are “complex undertakings” as

“authorities must convince the migrants that it is to their advantage to become regularized, but they cannot divulge their plans too far in advance, since this might immediately encourage more

immigration”.²⁸¹

The Global Commission on International Migration (GCIM) also supports the view that regularisation programmes are “complex undertakings” – they can promote additional irregular migration, if states establish them on an ongoing or rolling basis; however, regularisation measures have provided many migrants with irregular status with a chance to find a place in the economies and societies of their host countries.²⁸² The Commission makes a distinction between selective

regularisation programmes (offering legal status to migrants with irregular status, who have been present in a country for significant periods of time, who have found employment and whose continued

280 Thym, D. (2008.): op. cit., p. 111

281 International Labour Organization (2004), International Labour Conference. Report 6. Towards a fair deal for migrant workers in the global economy. Geneva. Available at:

http://www.ilo.org/public/portugue/region/eurpro/lisbon/pdf/rep-vi.pdf, p. 122, para. 401-402

282 Global Commission of International Migration (2005), Report. Migration in an Interconnected World: New Directions for Action, Available at: http://www.gcim.org/attachements/gcim-complete-report-2005.pdf, p. 38,

participation in the labour market is welcomed by the state and private sector) and amnesties, in which migrants with irregular status are given legal status in an across-the-board manner.²⁸³ GCIM

recommends that regularisation should take place on a case-by-case basis. The successful

achievement of the aims depends on a “transparent decision-making process” with “clearly defined criteria for migrants to qualify for regular status”. The criteria may include (i) applicant’s employment record; (ii) language ability; (iii) absence of a criminal record and (iv) the presence of children who have grown up in the country; “in other words, those who have already achieved a substantial degree of integration in society”.²⁸⁴

The Council of Europe (CoE) notes as well that regularisation programmes may have a subsequent

‘pull effect’ for further irregular migration.²⁸⁵ However, these concerns may be exaggerated if other factors contributing to irregular migration are not taken into account. These factors refer to:

geographical location, colonial history and linguistic ties, high level of demand for unskilled labour, narrow front-door for regular migration and difficulty in returning irregular migrants.²⁸⁶ The

Assembly also recognises that regularisation programmes offer the possibility to protect the rights of irregular migrants, to tackle the underground economy and to ensure that social contributions and taxes are paid.²⁸⁷

Similarly to the Global Commission on International Migration, the CoE distinguishes between regularisation programmes for specific groups of irregular migrants (exceptional humanitarian programmes, family reunification programmes, permanent or continuous programmes, earned regularisation programmes) and general amnesties, which apply to all irregular migrants.²⁸⁸ The Council advocates particularly for employer-driven regularisation programmes as a means of meeting the needs of a large number of irregular migrants, employers, trade unions and society in general. It supports also a process of earned regularisation, the benefits being that this

i. will provide a pathway to permanent residency or citizenship for migrants through a points system (points would be awarded on an individual basis to migrants through knowing the language of their host country, paying taxes, having stable employment, participating in community life, etc);

ii. has the potential to be self-selecting, since only those migrants who were truly motivated to stay would earn enough points, while those who were not would be forced to return home;

iii. eliminates the need for large-scale one-shot programmes, since each individual country would determine who would be regularised on a case-by-case basis. Earned regularisation is

283 GCIM (2005): op. cit. p.38

284 GCIM (2005): op. cit. p.38, para. 35

285 Council of Europe (CoE) Assembly (2007): Recommendation 1807. Regularisation programmes for irregular migrants, para. 4

286 Council of Europe (CoE) Assembly (2007): Resolution 1568, Regularisation programmes for irregular migrants, para. 13

287 Council of Europe (CoE): Assembly Recommendation, op. cit., para. 4

288 Council of Europe (CoE): Assembly Resolution, op. cit., para. 9

considered to be “flexible, adaptive and responsive to local labour market needs and demographic realities”.²⁸⁹

Furthermore, a regularisation process should be seen as part of a comprehensive strategy and “not as a measure of last resort when all other measures have failed”.²⁹⁰ That refers to improvement of

bureaucracy of regularisation programmes, including:

i. Comprehensive review of best practices and impacts;

ii. Taking into account both the concerns of employers and migrants;

iii. Improvement of publicity efforts (ensuring that publicity for the programmes reaches irregular migrants and that their benefits are explained carefully to the media and to the public in general);

iv. Administrative preparedness – strengthening the administration to be able to deal with the potential number of applicants for regularisation; minimum administrative requirements;

guarantees against fraudulent procedures.²⁹¹

The ILO also advocates an individual right to ‘earned adjustment’ as an alternative, or complement, to more general ‘unique’ regularisation measures. It targets irregular migrant workers who cannot be removed for legal, humanitarian or practical reasons and who have demonstrated that they have a prospect of settling successfully in the host country: “Migrant workers with irregular status may be said to earn a right to legal status if they meet certain minimum conditions: they must be gainfully employed, they must not have violated any laws other than those relating to illegal or clandestine entry and they must have made an effort to integrate by (for example) learning the local language”.²⁹² ILO notes that the successful achievement of aims depends on the involvement of all groups that will be affected: that includes migrants themselves through publicity and information programmes via channels that migrants trust, such as civic and religious organisations.²⁹³ Furthermore, regularisations work best when the process is “straightforward” – if the requirements are too demanding, time-consuming or costly, they will discourage many of those who are eligible. “Regularization should instead take the form of a simple act at the lowest possible level of administration, demanding very little documentation and requiring neither the support of a lawyer nor recourse to the courts.”²⁹⁴ The Council of Europe has also defined measures accompanying regularisation programmes, which refer to the following:

289 Council of Europe (CoE) Assembly (2007): Regularisation programmes for irregular migrants. Report Committee on Migration, Refugees and Population. Rapporteur: Mr John Greenway, United Kingdom, European Democrat Group. Doc. 11350. Available at:

http://assembly.coe.int/Main.asp?link=/Documents/WorkingDocs/Doc07/EDOC11350.htm, para. 120

290 Council of Europe (CoE) Assembly (2006): Human Rights of Irregular Migrants. Report Committee on Migration, Refugees and Population. Rapporteur: Mr Ed van Thijn, Netherlands, Socialist Group. Doc. 10924.

Available at: http://assembly.coe.int/Main.asp?link=/Documents/WorkingDocs/Doc06/EDOC10924.htm , para.

127

291 CoE Assembly 2007, Report, op. cit., para. 107-111

292 ILO (2004): op. cit. p. 120, para. 399

293 ILO (2004): op. cit. p. 120

i. Combating irregular employment and informal economy (reinforcing the labour inspectorate and establishing systems of fines and punishments);

ii. Strategies to encourage the integration of irregular immigrants who have been regularised;

iii. Working co-operation with countries of origin (tackling the push factors of irregular migration, whether these be economic or environmental, including co-development and other measures);

iv. Tightening visa and/or border controls;

v. Widening the front door to regular migration (more open admission policies that increase legal access to labour markets);

vi. Considering impact on families (impact of migration enforcement on families; perpetuation of irregular status on the second generation of immigrant families and its effects on the educational attainment, potential income earnings, health, and integration of children into the host country);

vii. Co-operation with other governments to harmonise policies: “the Council of Europe and the European Union should work toward establishing a common principle of regularisation”;²⁹⁵ viii. Protecting the victims of trafficking;

ix. Enabling the regularisation of irregular migrants and ensuring full integration into society when they are unable to return to their country of origin.²⁹⁶