REGINE Regularisations in Europe Final Report - European ...

7 The EU policy framework – relevant legislation and
principles
7.1 Introduction
With the Amsterdam Treaty of 1997, the European Union was granted wide-reaching powers with
respect to immigration. Thus, Article 63 (3) of the Treaty stipulates, among other things, that the
Council “shall, within a period of five years after the entry into force of the Treaty of Amsterdam,
adopt…measures on immigration policy within the following areas: (a) conditions of entry and
residence, and standards on procedures for the issue by Member States of long-term visas and
residence permits, including those for the purpose of family reunion, (b) illegal immigration and
illegal residence, including repatriation of illegal residents.”
Regularisation, defined as any state mechanism through which third country nationals who are
illegally residing or who are otherwise in breach of national immigration rules in their current country
of residence are granted a legal status – clearly falls within the scope of the powers granted to the
European Union. Given the close link of regularisation practices with international protection in a
majority of EU Member States (including asylum, subsidiary and temporary protection), the Union’s
powers regarding refugees and asylum provide an additional rationale for considering regularisation
as a policy area falling in principle under the competence of the European Union, as defined by the
Treaty. However, to date, the European Union has not explicitly dealt with regularisation. Against the
background of the history of policy development in the area of migration and asylum, this is not at all
surprising, as regularisation touches the core of immigration policy – namely, defining the conditions
and procedures for admission of third country nationals, even if regularisation admits third country
nationals in an exceptional and post-hoc manner. 310
In the absence of an explicit policy on regularisation, the following discussion will undertake a review
of the existing policy framework. Rather than providing a comprehensive overview of relevant
legislation and its interlinkages with regularisation, which is beyond the scope of this chapter, we will
review general objectives of European policies on migration and international protection and will
identify basic normative principles enshrined in the existing policy framework which relate to
regularisation or on which European policies on regularisation could be built. We will start with a
brief review of European Union policies and thinking on illegal migration, mainly on the basis of
various communications adopted by the European Commission and then will identify a number basic
normative principles underlying the current policies on migration and asylum.
310 So far, Member States have largely resisted any attempts for harmonising rules and procedures for admission
of third country nationals outside the context of family reunification and international protection. Not
unsurprisingly, the ambitious proposal for a directive “on the conditions of entry and residence of third-country
nationals for the purpose of paid employment and self-employed economic activities”, which the Commission
adopted in 2001 (COM(2001) 386 final), did not find sufficient support from Member States.
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