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to protect vulnerable groups, to compensate for deficiencies in immigration management, to improve access to basic social rights, or to promote the integration of migrants. Principally, NGOs believe that they should be more involved in the policy design of regularisation programmes, as they are the bestinformed on the situation of irregular migrants. NGOs also seem to be supportive of permanent regularisation mechanisms, particularly in cases of hardship. 9.3.2 Views on an EU role in regularisation policy Five Member States are, in principle, opposed to any regulation of this policy area: interestingly, these are all countries that are opposed to regularisation programmes, and two of these do not even have a regularisation mechanism. Three Member States support an EU legal framework that would respect national policy needs. Overall, there is little support for a strong EU role in this policy area: what does seem to command enthusiasm among Member States is a stronger information exchange mechanism and the development of policy expertise. The latter might consist of identification of good (and bad) practices, the use of statistical data techniques, and generally learning from other countries’ experiences. National trade unions – perhaps surprisingly – express views not so very different from those of Member States: few favour strong EU regulation, some would support a package of broader measures (such as regulation of legal migration), and most are supportive of a limited role for the EU whilst respecting different national policy needs. The ETUC, whilst not stating a clear policy position, implicitly favours a broad Europe policy approach that would reduce the actual need for employmentbased regularisations: this would include the promotion of economic migration channels, with a common EU framework for entry and residence; establishing a clear consensus between states and social partners about labour market needs; and moving away from the current two-tier migration policy approach that favours high-skilled labour migration and denies the need (and legal recruitment channels) for low-skilled workers. The ETUC also recommends the limited use of regularisation mechanisms, or “bridges out of illegality”. The positions of two major European-level employers associations (BusinessEurope and UEAPME) are not identical. BusinessEurope, while stressing the principle of subsidiarity, is not opposed to the elaboration of common procedures and other measures; its emphasis seems to be on the reduction of bureaucracy and other practical obstacles, which tend to push businesses into irregular employment of migrant workers. BusinessEurope does seem to be opposed to strengthening and regulating the rights of legal immigrant workers, while supporting measures against illegal migration – including employer sanctions, returns, and possible regularisation where return is not possible. UEAPME 371 represents SMEs, whose involvement with irregular employment of immigrants is undoubtedly greater than for large enterprises: furthermore, bureaucratic hurdles (both practical and fiscal) represent greater problems for their members. Thus, UEAPME strongly supports the EU framework directive on a single application procedure for migrant workers, emphasises the need for national authorities to determine labour market need for immigrant workers, and considers that over-regulation of the labour market is a primary cause of irregular employment. Their position on employer sanctions is rather 371 European Association of Craft, Small and Medium Sized Enterprises 132
more reserved than that of BusinessEurope, and opposed to any increased obligations on employers and also to existing policy on employers bearing the return costs of illegally employed third country nationals. European NGOs with positions in this policy area include PICUM, 372 various Church organisations (e.g. Caritas, CCME 373 ) and ECRE. 374 PICUM sees regularisation as a necessary but insufficient policy tool, while emphasising the need to address the underlying causes of informal employment and irregular status. Church organisations also argue for a comprehensive approach in tackling illegal migration, whilst asserting the value of regularisation programmes within such a broad approach. They are critical of the lack of consultation with NGOs in the formulation of policy in the area of irregular migration, are fearful of the possible impact of the ‘Return Directive’ which may impede future regularisation campaigns, and advocate the rapid adoption of the UN 1990 Convention. ECRE is broadly supportive of regularisation (citing the 2007 Council of Europe report), with particular emphases on the status of rejected asylum-seekers with three years’ (or more) residence and on suspended return decisions that leave persons on European territory without any legal status. 9.4 The role of international law in shaping EU policy Finally, we draw attention to the rights-based legal issues previously outlined in §6.1. In our view, the emphasis on security aspects of irregular migration and residence needs to be adjusted – for reasons of European political consensus and also of foreign relations. The recent jurisprudence of the European Court of Human Rights (ECtHR) has ventured into new territory concerning the rights of irregular migrants, and the case -law constitutes the EU Acquis. In particular, the principle of proportionality is paramount in addressing the issue of irregular residence: this principle is barely visible within the Return Directive (notably, paras. 6, 13, 16 of the Recital) even though Member States have the apparently unrestricted possibility to regularise under Art. 6 (4). Thus, arbitrary administrative practice (as opposed to rights-based policy) has been built into current legislation; various factors – e.g. duration of stay, integration into the labour market, social integration, links with country of origin (or of nationality), criminal record – are relevant for assessing the proportionality of forced return rather than regularisation. 375 It is to be expected that such cases will burden the ECtHR for years to come, since Member States appear reluctant to concede any principled rights to irregular migrants. This latter issue is, in fact, one of the major obstacles to ratification of the UN 1990 Convention on the Rights of All Migrant Workers and Their Families. The Convention actually grants less strong rights to irregular migrants than recent ECtHR jurisprudence, yet has been ratified by no Member State. In 372 Platform for International Cooperation on Undocumented Migrants 373 Churches Commission for Migrants in Europe 374 European Council on Refugees and Exiles 375 For a discussion of the possible development of the ‘Boultif criteria’, see Thym, D. (2008): Respect for Private and Family Life under Article 8 ECHR in ‘Immigration Cases: A Human Right to Regularize Illegal Stay?’ International and Comparative Law Quarterly, 57, 1, pp. 93-5 133
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REGINE Regularisations in Europe St
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CONTRIBUTORS Principal authors Mart
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Preface In December 2007, the Europ
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1 Terms, definitions and scope 1.1
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Table 1: Types of illegal or irregu
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1.3 Freedom of movement rights and
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1.4 The meaning of ‘regularisatio
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Regularisation Mechanism A regulari
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2 Previous comparative studies on r
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Generally, the focus of SOPEMI repo
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enefiting from regularisation has s
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amnesty and moreover involved (limi
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2. 3 The Odysseus study on regulari
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etween expediency and obligations c
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Sunderhaus identifies several ratio
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whether it can be attributed to pul
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Box 2: 3-tier earned regularisation
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measures; it does address questions
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3.1.1 Regularisation Programmes Ove
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Nine Member States provided details
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Figure 3 Grants of regularised stat
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Box 3: Regularisation policy in Swi
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3.2 Regularisation as a policy resp
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Table 5: Comparative table of regul
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case in Europe, alongside the more
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that a year after regularisation so
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treatment according to nationality,
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iii. issues of advance planning iv.
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iv. the requirement to appear in pe
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denying residence permits to existi
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efugees under the provisions of the
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4 Government positions on policy 15
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5 Positions of social actors 5.1 In
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Since the 1990s - and in some count
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live their lives without fear.” 1
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admission policies. 181 The Danish
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and useful, if planned and implemen
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depend on (unskilled) immigrant lab
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migration”. 209 In the opinion of
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stresses that “economic immigrati
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undocumented migrants by the Brusse
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NGO/Country Main activities in rega
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NGO/Country Assessment of own role/
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Page 89 and 90: eaching reforms of the overall fram
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Page 93 and 94: Table 8: Suggested target groups fo
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Page 99 and 100: for irregular migrants, while Italy
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Page 103 and 104: considered to be “flexible, adapt
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Page 109 and 110: 7.2 European Union approaches to il
Page 111 and 112: immigration.” 321 Finally, the st
Page 113 and 114: involve large numbers. Secondly, th
Page 115 and 116: 8 Policy Options OPTION 1: REGULATI
Page 117 and 118: initiative. In the case of permanen
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Page 121 and 122: nor need it be seen as an endorseme
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Page 125 and 126: OPTION 6: STRENGTHENING THE PRINCIP
Page 127 and 128: Rationale and possible impact: Upon
Page 129 and 130: information exchange could contribu
Page 131 and 132: d) apprehension data should disting
Page 133 and 134: OPTION 11: REVIEW OF ADMINISTRATIVE
Page 135 and 136: 9 Conclusions and preferred policy
Page 137: management of irregular migration s
Page 141 and 142: 9.5.2 Policy issues Previously (in
Page 143 and 144: Option 6a Facilitating access to lo
Page 145 and 146: Italy Ministerio Interno, Dipartime
Page 147 and 148: Federacion Andalucia ACOGE, Respons
Page 149 and 150: 11 References - secondary sources 1
Page 151 and 152: United Kingdom, European Democrat G
Page 153 and 154: Hollifield, J. (2004): ‘France: R
Page 155 and 156: Papademetriou, D. (2005): The “Re
Page 157 and 158: Watts, J. (2002): Immigration Polic
Page 159: European Commission, Proposal for a
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