At a UACES Arena seminar on 14 May 2013, Alan Desmond (University College Cork), presented research in progress to ~40 representatives from EU Institutions, think tanks and pressure groups. This article arose from Alan’s presentation.
In 2008 Project Clandestino estimated that there were about 3.8 million irregular migrants in the EU. While some had illegally crossed the border into the territory of the EU, most had entered lawfully on the basis of, for example, student or tourist visas, and remained in the EU after the expiration of these documents. It is of course difficult to assess with any accuracy the number of such migrants, and this number may have risen or fallen since the completion of Project Clandestino. But if we accept that there may be about 4 million irregular migrants in the EU we accept that there are up to 4 million individuals whose daily existence is shaped and structured by a fear of deportation.
This means that irregular migrants will often be afraid to approach the police if they fall victim to crime. They will be reluctant to cooperate with police if they witness crime. They will avoid accessing health care services until an illness becomes acute, creating a health risk not just for themselves, but for the wider community. They will be unable to provide a stable, supportive environment for their children, sometimes so fearful of coming into contact with school authorities that they will not send their children to school. They will be slow to seek redress through official channels if they are underpaid, unpaid or otherwise exploited or abused by employers. They act in this way because they fear that contact with the authorities may lead to their deportation.
The presence of irregular migrants thus leads to a situation where the trust that is essential for effective policing is eroded, the health of the community at large is put at risk, innocent children suffer disadvantages which have lifelong consequences and unscrupulous employers enjoy an unfair advantage over competitors who play by the rules. How then might we best deal with such an undesirable situation?
The EU response
Since the EU gained competence over asylum and migration with the entry into force of the Amsterdam Treaty in 1999 it has taken a security and enforcement approach to the issue of irregular migration. It has sought to prevent irregular migration by tightening the EU’s borders and its response to the presence of irregular migrants has been to remove them from the territory of the EU. Figures collated by the European Migration Network indicate that in 2009 a quarter of a million irregular migrants were removed from the EU.
There is, however, another way of dealing with the presence of such migrants. The conferral of a legal status on irregular migrants, commonly referred to as regularisation or legalisation, allows such migrants to reside lawfully in the EU, bringing them out of the legal netherworld of irregularity. No longer need they fear contact with the authorities, instead empowered by their legal status to access services to which they are entitled and to contribute fully to the community in which they live.
The Case for Regularisation
The European Commission and the Council take a dim view of regularisation, arguing that it has the effect of encouraging further irregular migration. Regularisation is an option, however, which has been endorsed by both the European Parliament and the European Economic and Social Committee, a consultative body which issues opinions to the EU institutions.
Of greater practical significance than a thumbs up from EU bodies is the fact that support for regularisation is to be found in the EU migration law framework itself. The 2008 Returns Directive, one of the most significant pieces of EU migration legislation in recent years, aimed to establish common standards across the EU for the removal of irregular migrants. Though criticised for sanctioning a punitive removal regime, the Directive, the main preoccupation of which is evident in its very title, nonetheless makes clear that Member States are not obliged to deport irregular migrants. They may instead choose to regularise them.
While the explicit recognition that Member States may regularise instead of returning is to be welcomed, the Directive does not place any strict regularisation obligation on Member States. Similarly, it provides no guidance as to the kind of legal status that should be conferred on migrants who will not be deported. More needs to be done to better protect the human rights of irregular migrants.
One course of action which could be pursued would be for the European Commission to follow up on the common EU rules concerning regularisation it has suggested in the past. A common EU legal framework on regularisation should provide for the conferral of a legal status on irregular migrants who have spent a specified minimum period of time in the EU, subject only to a number of core eligibility requirements such as the absence of a criminal record. This legal status should be renewable, subject again only to a number of core conditions, and should ultimately allow its beneficiaries to apply for long-term residence.
While securing the agreement of the EU Member States and institutions on a common legal framework for regularisation would present considerable challenges, such a framework would bring clarity, consistency and certainty to an area of State practice which is characterised by haphazard and ad hoc measures. It would allow for the realisation of both the potential and human rights of as broad a swathe of the EU’s irregular migrant population as possible. It would acknowledge the fact that regularisation, though usually depicted as an exceptional measure, is something to which States have frequent recourse: the ICMPD REGINE study estimates that between 1996 and 2008 up to 6 million migrants may, at least temporarily, have transitioned out of irregularity.
Regularisation also seems to make sense in the context of the EU’s aging and dwindling population. It would enhance the EU’s standing with countries whose citizens are regularised, lending some credibility to the claim that the EU is founded on respect for human rights and human dignity. Unfortunately, however, given the EU’s current economic woes and the attendant Euro-scepticism, there is little appetite for such politically contentious migration measures. Millions of migrants in the EU must therefore continue to suffer denial of respect for their human dignity.
The UACES Arena Bursary offers the opportunity to present research on cutting edge issues to an audience of Brussels-based practitioners and scholars. UACES members are invited to apply for the Arena Bursaries worth 500 GBP each at: www.uaces.org/arena.
The next deadline for applications is Wednesday 18 September 2013.
This article reflects the views only of the author and the Commission cannot be held responsible for any use which may be made of the information contained therein.