REGINE Regularisations in Europe Final Report - European ...

efugees under the provisions of the Aliens Act, the Netherlands and Italy introduced a novel status
explicitly designed for temporary protection purposes, and Germany, Sweden, and France and the UK
changed or used existing humanitarian statuses. 150 Finally, following the Kosovo crisis, a temporary
mechanism was established on the European level, 151 which harmonises the different ad-hoc responses
taken by EU Member States during the 1990s but so far has not yet been put into practice. However,
as the objective of the temporary protection mechanism was not so much to define a legal status for
war refugees, but rather to provide a mechanism for ‘burden-sharing’ among EU Member States,
subsidiary protection status as defined by the qualification directive (Council Directive
2004/83/EC) 152 is the much more relevant legal provision, not least since the thresholds to identifying
a situation calling for the putting into force of the temporary protection mechanisms are quite high
and quite unlikely to be invoked but in the most exceptional circumstances.
Related proposal(s):Option 11
3.3.6 The lack of coherent policy on non-deportable aliens
There exists a small but significant number of persons who, for various reasons, cannot be deported:
they are left in a sort of limbo of long-term toleration, varying in extent and treatment across MS. This
includes, in certain MS, refugees not entitled to asylum because of persecution by non-governmental
groups; unsuccessful asylum-seekers who cannot be deported; illegal immigrants of unknown
provenance; and TCN family members of EU citizens with a transitional or restricted status before
marriage, for whom several MS require application from outside the territory. 153
Some guiding principles on limiting the number of such cases to an absolute minimum, by specifying
formal procedures for the legalisation of certain ‘tolerated’ statuses, would aid a small reduction in the
extent of illegal residence across the EU. In some cases, temporary residence permits might be
appropriate; in others, such as family members of EU nationals, clearly more permanent statuses are
needed.
Related proposal(s):Options 7, 8
3.3.7 Regularisation for family-related reasons
There appears to be a significant extent of ‘spontaneous’ family reunification – that is, children and
spouses of TCNs who reunite with their families outside the legal framework of family reunification.
This occurs for a variety of reasons, including: serious delays with the formal process, lack of
150 Van der Selm, J. (2000): ‘Conclusions’, in Van der Selm, J. (ed): Kosovo’s Refugees in the European Union.
London and New York, Pinter. See also Van Selm-Thorburn, J. (1998): Refugee Protection in Europe. Lessons
of the Yugoslav Crisis, The Hague, Boston, London, Martinus Nijhoff Publishers.
151 Council Directive 2001/55/EC of 20 July 2001 on minimum standards for giving temporary protection in the
event of a mass influx of displaced persons and on measures promoting a balance of efforts between Member
States in receiving such persons and bearing the consequences thereof
152 Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of
third country nationals or stateless persons as refugees or as persons who otherwise need international protection
and the content of the protection granted
153 Presumably, travel to another EU country to make that application, with a return of the entire family invoking
Treaty principles of free movement, could be an option. Nevertheless, it is an unnecessary impediment to the
right of family unity, and the situation creates problems for little purpose.
55