REGINE Regularisations in Europe Final Report - European ...

intergovernmental organisation for (currently) 47 European states. Treaties, either conventions or
agreements, are concluded within a multilateral framework: once opened for signature, they constitute
straightforward international treaties and not legal instruments of the Council of Europe. Furthermore,
the treaty rights are conferred solely on nationals of other contracting parties. The exception to this is
the European Convention on Human Rights (ECHR), whose control machinery includes a
commission and a court to whose jurisdiction members have agreed.
The ECHR has without doubt had the most impact; for migrants, however, other important legislation
includes the Convention on Establishment, 1955; the European Social Charter, 1961; the European
Convention on Social Security, 1972; and the Convention on the Legal Status of Migrant Workers,
1977. With the exception of the ECHR, the conventions are applicable only to legally resident
migrants who are nationals of contracting states: however, they do set standards concerning the
conditions and maintenance of legal status, such as state procedures for the issuing of residence
permits.
What is important for EU policy on irregular migrants is that not only has the European Court of
Human Rights (ECtHR) recently started to address the rights of such migrants, but that the
Convention itself (and implicitly the jurisprudence of the Court) is, according to Article 6(2) of the
(Consolidated) Treaty on the European Union, to be considered as part of the Acquis Communautaire.
Indeed, the gap between EU and ECHR laws has narrowed substantially in recent years, such that
some sort of symbiotic relationship – rather than uneasy competition – is gradually emerging.
Recent ECHR case law has “considerably extended the protective scope of Article 8 ECHR by
granting autonomous human rights protection to the long-term resident status independent of the
existence of family bonds…effectively granting several applicants a human right to regularize their
illegal stay.” 275 This new direction of the Court’s jurisprudence has come about partly through having
to address the rights of long-term ethnic Russian residents of several Baltic states, who had been
refused citizenship of Latvia and Estonia. After the case of Sisojeva et al. v. Latvia, 276 various
administrative courts in Germany relied upon the new case law to oblige the authorities to regularise
the illegal stay of rejected asylum-seekers who had been living in a ‘tolerated’ fashion for many
years. 277 However, it has also been extended to the legal and social situation of immigrants in western
Europe. The cases of Mendizabal v. France 278 and Da Silva & Hoogkamer v. Netherlands 279 concern,
respectively, the conditions for granting residence permits and the regularisation of illegal stay.
Two recent instruments of European Union policy on migration – the directives on family
reunification and on long-term residence – are in need of human rights standards, since the directives
themselves are little more than instructions for Member States. The recent case law of the ECtHR,
particularly that concerning Article 8, is almost certain to be the guiding force in any ECJ
275 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, p. 87
276 ECtHR, judgement of 15 January 2007 (GC), No. 60654/00
277 Thym, D. (2008.), op. cit. p. 105
278 ECtHR, judgement of 17 January 2006, No. 51431/00, Ariztimuno Mendizabal v. France
279 ECtHR, judgement of 31 January 2006, No. 50435/99, Rodrigues Da Silva & Hoogkamer v. The Netherlands
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