REGINE Regularisations in Europe Final Report - European ...

discretion, no entitlement to regularisation exists and authorities judge cases on the individual merits
of a case. 75
(3) Fait accomplit vs. protection grounds: ‘Fait accomplit’ regularisations refer to what is today
sometimes discussed as “earned regularisation”, i.e. regularisation on the basis of integration in the
host society, notably on the grounds of long residence. Apap et al. do not clearly distinguish ‘fait
accomplit’ regularisations from regularisations on grounds of protection; although they mainly
include medical grounds and forms of subsidiary protection in this category, they also classify
regularisation for family related reasons as protection related regularisations.
(4) Expedience vs. obligation: This distinction refers to the degree to which a state is obliged to
regularise certain illegally staying non-nationals under constitutional and national human rights laws
or under international law, notably regarding article 3 ECHR (prohibition of inhumane, cruel or
degrading treatment) and article 8 ECHR (respect for private and family life). 76
(5) Organised vs. informal: This distinction refers to what degree formalised regularisation
mechanisms and programmes exists. Informal regularisations thus would refer to cases where
individuals staying irregularly would petition immigration authorities to get regularised, i.e. to be
issued a permit within the existing legal framework, irrespective of whether there are specific
provisions for regularisations.
The ‘typology’ developed by the Odysseus study still provides a useful point of departure. It covers
various important dimensions of regularisation measures, including administrative and organisational
aspects of regularisation policies (1, 3 and 5) and regularisation criteria (3 and 4). However, neither
the Odysseus study nor subsequent studies which have made use of the Odysseus typology have
actually attempted to comprehensively classify regularisation measures according to the five
dimensions identified by the study.
In addition, the typology also has a number of weaknesses. First, broader objectives of regularisation
measures, including regaining control, addressing undeclared work and the informal economy,
improving the social situation of immigrants, carrying out regularisations as an accompanying
measure to increased immigration restrictions, etc. are not reflected in the typology. Secondly,
dimensions (3) and (4) essentially cover some grounds on which the stay of illegal immigrants might
be regularised. These distinctions inadequately cover employment-based regularisations, but also
family related reasons seem to constitute a distinct reason for regularising the status of illegally
staying non-nationals and cannot be easily subsumed under either “Fait accompli” or “protection”. In
addition, the fourth dimension (expedience vs. obligations) seems to be both too broad and too
narrow. The understanding of obligation is relatively broad in that analytically it also would include
classical protection grounds (refugee status) and other statuses which have emerged more recently
(subsidiary and temporary protection, protection for victims of trafficking) – all of which need to be
distinguished analytically from regularisation (even if overlaps exist). Conversely, the distinction
75 Apap, J. et al. (2000): op. cit., p.267.
76 See also 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, passim
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