REGINE Regularisations in Europe Final Report - European ...

status granted to an immigrant – this may change over time, and also in the case of breach of
conditions (see Table 1, Fn. 15). The dimension of ‘legal status of employment’ refers to whether
non-nationals are legally entitled to work, as defined by regimes for work and/or residence permits.
By contrast, the category ‘nature of employment’ refers to compliance with wider employment
regulations, notably tax and social security (payment) regulations (hence this covers the distinction
between declared/undeclared work). A fifth, cross-cutting dimension (which we do not consider to be
a defining element of legality/illegality) is whether illegally staying persons are ‘documented’, i.e.
known to the authorities.
Taking first the variable of legality of entry, it can be seen that there exist seven variants of illegal
entrants and five variants of legal entrants (plus one special case of children born on the territory). A
similar examination of statuses concerning legality of residence reveals eight illegal types, four legal
and one semi-legal. Across the EU (27), immigration and employment laws (along with their actual
policy implementation) vary so widely, that the determination of exactly which of these categories
should be cast as ‘illegally staying’, and which should not, will inevitably turn into a lottery.
As can be noted from Table 1, certain categories consist of persons who presumably are not intended
as the targets of policies such as the Return Directive. Of particular note are the bottom two rows –
children of varying statuses, and those with expired residence permits who continue in employment
(and usually also in taxation). Other categories, such as visa-overstayers and illegal entrants, might
appear to be suitable targets for return: in practice, a large number of Member States have relied upon
these categories for their immigrant labour policy. Most of these types of illegality can be considered
suitable for regularisation 16 – at least, under certain conditions such as length of residence.
Table 1 is not to be interpreted as definitive of the concept of ‘illegal stay’, but rather as an
elaborating device used to deconstruct the extraordinarily wide and (arguably) open-ended definition
used in the Return Directive. For example, taking legality of entry as a condition (note the Return
Directive definition, given above), we exclude four subcategories of persons with legal entry but
illegal residence; similarly, taking (nominal) legality of residence as a condition, we exclude five
subcategories of persons (of which three are illegal entrants). Furthermore, one of the major
subcategories (illegally working persons who entered with a tourist visa) has both legal entry and
residence, but is in breach of conditions of the visa. Such a breach is likely to lead to termination of
legal stay, although the practices of Member States vary widely. Here, again, we find a significant
heterogeneity across the EU (27) which warrants further study: apart from legal constraints on
terminating the residence of a third country national (see in more detail below, § 1.3), not all breaches
of immigration regulations are sanctioned with termination of stay. However, relatively little is known
about Member States’ practices in this regard.
16 Possibly, working tourists constitute an exception; however, a tourist visa is a ‘normal’ work migration route
into many EU countries.
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