REGINE Regularisations in Europe Final Report - European ...

2. 3 The Odysseus study on regularisation practices in eight European
countries
Eight years after its publication, the Odysseus study 73 still remains the main point of departure and
reference work for most recent studies on regularisation, despite several limitations. Its continuing
relevance warrants a more detailed discussion. The study is still the most comprehensive legal study
of regularisation practices up to this date and few of the studies that have appeared since provide a
similarly detailed analysis of relevant legislation and administrative procedures. The study covers the
legal bases of regularisation practices, eligibility criteria and other conditions for regularisations, the
nature and form of administrative procedures and the costs of regularisation procedures for applicants.
Apap et al. define regularisation as “the granting, on the part of the State, of a residence permit to a
person of foreign nationality residing illegally within its territory.” 74 They exclude from their
definition persons who have in principle a right to residence (however temporary), such as asylum
seekers or non-nationals waiting for a renewal of their permit but temporarily without a status; and
they exclude non-nationals against whom removal procedures have been initiated but whose removal
has been temporarily suspended (‘toleration’). Thus, in general, the definition developed by the
Odysseus study is very close to our definition, although it is less specific as regards the definition of
‘illegal migrants’. In particular, the study does not reflect on different dimensions of illegality and the
consequences that a breach of the conditions of residence (e.g. by engagement in illegal or undeclared
work) has on the residence status of immigrants. In contrast to this study, the Odysseus study does not
consider processes of what we call ‘normalisation’, i.e. the transformation of a restricted or
transitional temporary residence status, which cannot be converted into a regular residence status, into
a regular residence permit (the latter, in principle, convertible into a long-term status).
The study’s main contribution lies in the comparative analysis of regularisation practices, and in
particular in the elaboration of a typology of regularisation programmes and mechanisms which has
remained the most influential ‘typology’ up to this date. However, rather than providing a systematic
typology that might be a basis for a systematic classification of regularisation practices, the ‘typology’
developed by the Odysseus study defines five major axes along which regularisations can be analysed.
The ‘typology’ thus essentially defines variables for a (potential) matrix classifying regularisations
along these criteria. The following dimensions are distinguished:
(1) Permanent vs. one-off regularisations: This distinction is roughly equivalent to our
distinction between regularisation mechanisms and regularisation programmes.
(2) Individual vs. collective regularisations: Apap et al. mainly differentiate individual vs.
collective regularisations by the degree of administrative discretion in awarding a legal status to an
illegally staying alien. In other words, regularisation measures based on a tight and detailed eligibility
criteria which clearly define the target population would be classified as collective regularisation;
Apap et al. contrast criteria-based regularisations to cases where authorities have considerable
73 De Bruycker, P. (2000): op. cit. and Apap, J. et al. (2000) op. cit.
74 Apap, J. et al. (2000): op. cit., p.263.
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