REGINE Regularisations in Europe Final Report - European ...
REGINE Regularisations in Europe Final Report - European ... REGINE Regularisations in Europe Final Report - European ...
In §8 we present twelve detailed policy options and sub-options. Finally, in §9 we draw together some of the most important policy lessons to be learned from the EU, USA and Switzerland. Taking account of the expressed positions of stakeholders across the EU, we advocate adoption of those policy options that seem most likely not only to be effective in better managing irregular third country national populations across the EU but are also supportable by Member States and European social actors. Additional supporting material is provided within three Appendices. Appendix A contains detailed country studies of five Member States plus Switzerland; Appendix B contains short country profiles for the remaining EU Member States plus the USA; and Appendix C consists of summary statistical data in spreadsheet format on regularisations for the EU(27) that were compiled during the course of this study. iii
1 Terms, definitions and scope 1.1 The problem of negative definition Defining ‘illegal stay’ is notoriously difficult and globally, states’ practices vary widely in regard to whom they regard as illegally resident. In the European Union, the recently-agreed Return Directive 1 adopts a common definition of illegal stay, which also has been used in other relevant draft directives from the European Commission. 2 Thus, Article 3(b) of the Return Directive stipulates: "[I]llegal stay" means the presence on the territory of a Member State, of a third-country national who does not fulfil, or no longer fulfils the conditions of entry as set out in Article 5 of the Schengen Borders Code 3 or other conditions for entry, stay or residence in that Member State Despite this common definition, however, the national definitions used in Member States still vary widely and may need to be adapted when transposing the Directive. The problem of the real meaning of such a definition arises at least partly because it constitutes an attempt to define something in a negative sense 4 – that certain persons are not legally staying on the territory – with insufficient clarity concerning the specific laws, or specific aspects of law, that may have been infracted. 5 An alternative definition such as ‘lawful residence’ 6 also has a number of meanings in different national legal systems, ranging from a very narrow interpretation in the UK, Spain and Portugal, 7 to a broader concept of ‘legal stay’. 8 Thus, varying national immigration and labour laws (amongst others) lead to 1 Art. 3(b), Proposal for a Directive of the European Parliament and of the Council on common standards and procedures in Member States for returning illegally staying third-country nationals, Council of the European Union, Brussels, 25 June 2008, 10737/08. 2 E.g. Proposal for a Directive providing for sanctions against employers of illegally staying third-country nationals, COM(2007)249 final; Proposal for a Directive of the European Parliament and of the Council on common standards and procedures in member states for returning illegally staying third country nationals. COM(2005)391 final. 3 Article 5 of the Schengen Border Code (Regulation (EC) No 562/2006 of The European Parliament and of the Council of 15 March 2006 establishing a Community Code on the rules governing the movement of persons across borders (Schengen Borders Code)) lists the following entry conditions: (a) possession of a valid travel document or documents giving authorisation to cross the border; (b) possession of a valid visa, if required; (c) justification of the purpose and conditions of the intended stay, sufficient means of subsistence, both for the duration of the intended stay and for the return to their country of origin or onward travel; (d) no SIS alert has been issued for the purposes of refusing entry; (e) persons entering are not considered to be a threat to public policy, internal security, public health or the international relations of any of the Member States. 4 Exceptions lie with the Netherlands and Ireland, both of which have an official definition of illegal residence. For more details, see European Migration Network (2007): Illegally Resident Third Country Nationals in EU Member States (synthesis report), p. 11. 5 One major source of heterogeneity in the definition of illegal stay as set out by the Return Directive is Article 5 (1) (c) of the Schengen Border Code referred to in the directive. In the absence of a common admission policy, it is Member States who define purposes and conditions of stay and who have the power to withdraw a right to stay if conditions are not (or are no longer) met, unless the Third Country National is covered by Community legislation on long-term residence, the rights of EU citizens and their families, or the family reunification directive. Because of the power of Member States to specify purposes and conditions of stay, the concrete definitions of illegality will naturally vary accordingly. 6 Note particularly the use of this concept by the ECJ in Singh (C-370/90), although the case is not about illegal stay per se. 7 Excluding those with temporary legal stay, but not the right of residence. 8 “séjour légal” in France, “rechtmäßiger Aufenthalt” in Germany, and soggiorno legale in Italy. 1
- Page 1 and 2: REGINE Regularisations in Europe St
- Page 3 and 4: CONTRIBUTORS Principal authors Mart
- Page 5: Preface In December 2007, the Europ
- Page 9 and 10: Table 1: Types of illegal or irregu
- Page 11 and 12: 1.3 Freedom of movement rights and
- Page 13 and 14: 1.4 The meaning of ‘regularisatio
- Page 15 and 16: Regularisation Mechanism A regulari
- Page 17 and 18: 2 Previous comparative studies on r
- Page 19 and 20: Generally, the focus of SOPEMI repo
- Page 21 and 22: enefiting from regularisation has s
- Page 23 and 24: amnesty and moreover involved (limi
- Page 25 and 26: 2. 3 The Odysseus study on regulari
- Page 27 and 28: etween expediency and obligations c
- Page 29 and 30: Sunderhaus identifies several ratio
- Page 31 and 32: whether it can be attributed to pul
- Page 33 and 34: Box 2: 3-tier earned regularisation
- Page 35 and 36: measures; it does address questions
- Page 37 and 38: 3.1.1 Regularisation Programmes Ove
- Page 39 and 40: Nine Member States provided details
- Page 41 and 42: Figure 3 Grants of regularised stat
- Page 43 and 44: Box 3: Regularisation policy in Swi
- Page 45 and 46: 3.2 Regularisation as a policy resp
- Page 47 and 48: Table 5: Comparative table of regul
- Page 49 and 50: case in Europe, alongside the more
- Page 51 and 52: that a year after regularisation so
- Page 53 and 54: treatment according to nationality,
- Page 55 and 56: iii. issues of advance planning iv.
In §8 we present twelve detailed policy options and sub-options. F<strong>in</strong>ally, <strong>in</strong> §9 we draw together<br />
some of the most important policy lessons to be learned from the EU, USA and Switzerland.<br />
Tak<strong>in</strong>g account of the expressed positions of stakeholders across the EU, we advocate adoption of<br />
those policy options that seem most likely not only to be effective <strong>in</strong> better manag<strong>in</strong>g irregular<br />
third country national populations across the EU but are also supportable by Member States and<br />
<strong>Europe</strong>an social actors.<br />
Additional support<strong>in</strong>g material is provided with<strong>in</strong> three Appendices. Appendix A conta<strong>in</strong>s<br />
detailed country studies of five Member States plus Switzerland; Appendix B conta<strong>in</strong>s short<br />
country profiles for the rema<strong>in</strong><strong>in</strong>g EU Member States plus the USA; and Appendix C consists of<br />
summary statistical data <strong>in</strong> spreadsheet format on regularisations for the EU(27) that were<br />
compiled dur<strong>in</strong>g the course of this study.<br />
iii
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