REGINE Regularisations in Europe Final Report - European ...

emedies against administrative decisions. In addition, in some Member States (notably in Germany,
and, outside the European Union, in Switzerland), special bodies (so-called ‘hardship commissions’)
have been charged to adjudicate ‘hardship cases’ or to advise authorities on decisions on humanitarian
stay. In some cases, commissions with an advisory mandate or otherwise informally include other
stakeholders from the NGO community. 128 The implications of different institutional set-ups and
procedural variations have not been investigated in this study. There is some evidence, however, that
ex-officio procedures without any possibilities for legal redress are problematic and may result in
arbitrary and inconsistent decisions. Generally, the effects of different institutional designs call for
further study and might be a suitable issue for the identification and exchange of good practices.
Related proposal(s): Options 1c, 1d
3.3.3 Avoiding the creation of illegal immigrants
The assumption is frequently made that immigrants with an irregular status are in such a situation
through crossing a border illegally, breach of visa conditions, or rejection of asylum applications.
Table 1, above, gives an indication of the main categories of illegal entry, residence and employment.
Although the majority of irregular residents participating in regularisation programmes are in the
above categories, a significant minority (varying by country of residence and origin) is in an irregular
status for other reasons. These are shown in Table 2, as the bottom two rows. We classify these
categories as ‘created illegal immigrants’, for which state policy is primarily responsible. Below, we
identify some specific cases.
3.3.3.1 Persons whose residence permits have expired, but they remain in employment
This occurs for a variety of reasons directly emanating from state procedures. First, weak bureaucracy
and inefficiency in residence or work permit procedures can result in long delays and irregular status
– particularly where permits are of short duration (1 or 2 years). Secondly, onerous obligations for the
renewal process may lead to immigrants being unable to satisfy those conditions; such obligations
include
i. the requirement of a full-time employment contract
ii. the payment of social insurance as if in full-time employment 129
iii. very high application fees for residence/work permits 130
128 In Austria, for example, NGOs, alongside other stakeholders, are represented in the Advisory Council on
Asylum and Migration Affairs which (as two separate institutions) was first created by the 1997 Aliens Law.
The Advisory Council was involved in decisions on humanitarian stay in an advisory role between 1998 and
2005. Apparently its recommendations were largely followed by the Ministry of the Interior (Interview, Karin
König, Vienna City Administration, 27 February 2008).
129 In Greece, the average annual payment of social insurance by TCN workers in the construction sector
exceeds that made by Greek workers, but is still insufficient to satisfy the criterion of full-time employment.
130 Application fees for residence permits range from €15 in Italy, €50 in Germany up to €900 in Greece (longterm)
and €1,078 in the UK (indefinite leave to remain). Excessive fees for residence permits are proscribed in
both the European Convention on Establishment (ETS 019) and the European Convention on the Legal Status of
Migrant Workers (ETS 093). Article 21(2) of ETS 019 states that the amount levied should be “not more than
the expenditure incurred by such formalities”. ETS 093 goes further, and states in Article 9(2) that residence
permits should be “issued and renewed free of charge or for a sum covering administrative costs only”. Article
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