REGINE Regularisations in Europe Final Report - European ...

More documents

Recommendations

Info

varying types of illegal stay. Although illegal stay includes all types of stay which do not conform to notions of ‘legal stay’ (as defined in different national contexts), persons without residence status but ‘known’ and tolerated by the authorities may not be included in national definitions of illegal stay. 9 For its part, the Commission seems to take a very broad view of what constitutes ‘illegal stay’: “e.g. expiry of a visa, expiry of a residence permit, revocation or withdrawal of a residence permit, negative final decision on an asylum application, withdrawal of refugee status, illegal entrance”. 10 Furthermore, the Return Directive includes specifically those third country nationals “who no longer fulfil” the conditions of legal entry, stay or residence. Thus, holders of expired residence permits are de jure illegally residing, apparently regardless of the circumstances that led to this. The Return Directive’s discussion 11 states that there is no attempt to “address the reasons or procedures for ending legal residence”; at present, there is also no Community instrument for addressing the reasons or procedures for beginning legal residence. Given that both of these issues are germane to the phenomenon of ‘illegal stay’, it would seem that regularisation of illegally staying third country nationals must logically remain, for the time being, as a matter for national policy. 1.2 Types of illegal or irregular status The terminology used in the literature is extensive, inconsistent and generally problematic through lack of definition. Such terms include ‘clandestine’, ‘irregular’, ‘illegal’, ‘unauthorised’, ‘undocumented’, ‘sans papiers’; we do not find it useful here to rehearse the arguments for and against any particular terminology. 12 Suffice it to say that we are essentially concerned with conformity or non-conformity with legal requirements: an individual’s degree of ‘compliance’ 13 with national legislation is complex and multifaceted, and in practice is more complex than the definition embraced by the Return Directive would suggest. Table 1 gives an indicative typology of the complex range of actualities of conformity with national immigration and labour legislation. We distinguish four main aspects of legality/formality 14 :– entry, residence, employment (legal) and employment (formal). The dimension of ‘entry’ merely refers to the legality of entering the territory, with a crude distinction of legal or illegal; the dimension of ‘residence (nominal)’ identifies the formal residence 9 There is a tendency for some Member States to define third country nationals who are unlawfully staying, but known to the authorities, as being outside of the population of illegal residents. In a strictly legal sense, documented immigrants whose residence is unlawful should be considered part of the wider population of irregular or illegal residents. Thus, Germany does not consider tolerated persons as illegally staying whereas the Netherlands includes tolerated persons in its national definition of illegally resident persons (see REGINE country fact sheets on Germany and the Netherlands). 10 Proposal for a Directive … for returning illegally staying third country nationals, op. cit, p.6. 11 See Fn. 1 12 For a more extensive discussion see Jandl, M., Vogl, D. and Iglicka, K. (2008): ‘Report on methodological issues’, Unpublished Draft Report for the project Clandestino - Undocumented Migration: Counting the Uncountable. Data and Trends Across Europe. 13 For the concept of ‘compliance’, see Ruhs, M. and Anderson, B. (2006): Semi-compliance in the migrant labour market, Working Paper 30. COMPAS, University of Oxford. 14 We do not document here, for simplicity, the cases of withdrawal of residence permits consequent to criminal conviction, assessment of public policy risk, or breach of the conditions of residence. 2
Table 1: Types of illegal or irregular status Entry Residence (nominal) 15 Legal Status of Employment Nature of Employment (formal – taxed, social security contributions) Documented? Examples Illegal (illegal) - - - Undocumented migrants transiting a country without actual residence Illegal Illegal Illegal None No Illegal Illegal Illegal Informal No Illegal immigrants who are working Illegal Illegal Illegal Formal Illegal Legal Illegal Informal Documented Illegal Semi-legal Legal/illegal Formal/informal Documented Illegal Legal Legal Formal/informal Documented Legal Legal Illegal Informal Legal Legal Illegal Informal Documented Legal Illegal Illegal Informal Semi-documented (tax authorities, social security bodies) Semi –documented (if visa obligation) Semi-documented (if visa obligation)/ undocumented Legal Illegal Legal Formal/informal Semi-documented Legal Illegal Illegal Formal Semi-documented - Illegal Illegal Informal Adapted from Gächter et al. (2000:12) and Van der Leun (2003: 19) Semi-documented/ undocumented Illegal immigrants not working; family members reunified without authorisation and not working (includes children) Illegal immigrants illegally employed, but paying taxes and social security contributions (in countries where legal employment status and nature of employment are not systematically cross-checked) Asylum seekers without access to work who work informally, post hoc regularised persons without the right to work Persons in respect of whom removal order has been formally suspended (e.g. tolerated status) Formally regularised persons; persons with a claim to legal status due to changed circumstances (e.g. marriage with a citizen, ius soli acquisition of citizenship by offspring) Tourists working without permission Legal immigrants without the right to work (e.g. students in some countries, family members in others) Visa overstayers, citizens of new EU MS without access to work who overstay the 3 months period Overstayer in permit-free self-employment (e.g. business persons, artists, etc.) Persons whose residence/ work permit has expired but who continue to be formally employed Children of illegal immigrants born in country of residence; children of legal immigrants born in country of residence with expired/ without legal status 15 The title of legal residence may be subject to observance of certain restrictions, such as access to employment, and is likely to be removed upon discovery of any serious breach. State response to infractions varies according to country and category of immigrants, with greatest toleration generally of family members. 3
Page 1 and 2: REGINE Regularisations in Europe St
Page 3 and 4: CONTRIBUTORS Principal authors Mart
Page 5 and 6: Preface In December 2007, the Europ
Page 7: 1 Terms, definitions and scope 1.1
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.
Page 57 and 58: iv. the requirement to appear in pe
Page 59 and 60:
denying residence permits to existi
Page 61 and 62:
efugees under the provisions of the
Page 63 and 64:
4 Government positions on policy 15
Page 65 and 66:
5 Positions of social actors 5.1 In
Page 67 and 68:
Since the 1990s - and in some count
Page 69 and 70:
live their lives without fear.” 1
Page 71 and 72:
admission policies. 181 The Danish
Page 73 and 74:
and useful, if planned and implemen
Page 75 and 76:
depend on (unskilled) immigrant lab
Page 77 and 78:
migration”. 209 In the opinion of
Page 79 and 80:
stresses that “economic immigrati
Page 81 and 82:
undocumented migrants by the Brusse
Page 83 and 84:
NGO/Country Main activities in rega
Page 85 and 86:
NGO/Country Assessment of own role/
Page 87 and 88:
known that this makes them vulnerab
Page 89 and 90:
eaching reforms of the overall fram
Page 91 and 92:
Accord of March 2008 have not yet b
Page 93 and 94:
Table 8: Suggested target groups fo
Page 95 and 96:
policy measures that could be adopt
Page 97 and 98:
followed by the granting of any sta
Page 99 and 100:
for irregular migrants, while Italy
Page 101 and 102:
interpretations of the EU directive
Page 103 and 104:
considered to be “flexible, adapt
Page 105 and 106:
iii. Measures and sanctions against
Page 107 and 108:
of international protection, it is
Page 109 and 110:
7.2 European Union approaches to il
Page 111 and 112:
immigration.” 321 Finally, the st
Page 113 and 114:
involve large numbers. Secondly, th
Page 115 and 116:
8 Policy Options OPTION 1: REGULATI
Page 117 and 118:
initiative. In the case of permanen
Page 119 and 120:
Ultimately, a comprehensive definit
Page 121 and 122:
nor need it be seen as an endorseme
Page 123 and 124:
permits, Member States should take
Page 125 and 126:
OPTION 6: STRENGTHENING THE PRINCIP
Page 127 and 128:
Rationale and possible impact: Upon
Page 129 and 130:
information exchange could contribu
Page 131 and 132:
d) apprehension data should disting
Page 133 and 134:
OPTION 11: REVIEW OF ADMINISTRATIVE
Page 135 and 136:
9 Conclusions and preferred policy
Page 137 and 138:
management of irregular migration s
Page 139 and 140:
more reserved than that of Business
Page 141 and 142:
9.5.2 Policy issues Previously (in
Page 143 and 144:
Option 6a Facilitating access to lo
Page 145 and 146:
Italy Ministerio Interno, Dipartime
Page 147 and 148:
Federacion Andalucia ACOGE, Respons
Page 149 and 150:
11 References - secondary sources 1
Page 151 and 152:
United Kingdom, European Democrat G
Page 153 and 154:
Hollifield, J. (2004): ‘France: R
Page 155 and 156:
Papademetriou, D. (2005): The “Re
Page 157 and 158:
Watts, J. (2002): Immigration Polic
Page 159:
European Commission, Proposal for a
show all

REGINE Regularisations in Europe Final Report - European ...

Create successful ePaper yourself

Delete template?

Save as template?