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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. 102
7.2 European Union approaches to illegal migration and the regularisation option The following review 311 does not purport to provide a comprehensive review of European Union policies on illegal migration. Certain aspects of broader European Union policies on illegal migration, notably return policies, have already been addressed in the preceding chapters and will be taken up again in §8. The objective of this chapter is more limited: it aims to provide an overview of the evolution of Commission thinking on the role of regularisation as a policy tool and thus essentially is intended as a background to the current discussions. Suffice it to say that the interlinkages between broader policies on illegal migration and regularisation have so far received rather little attention and, in particular, this issue has not been addressed explicitly in any of the communications on EU policies concerning illegal migration. As has been noted in §2, the Commission has for some time taken an interest in regularisation policy. Thus, the first major comparative study on regularisation practices in selected EU Member States (conducted by the Odysseus network) was financially supported by the European Union and indicated that regularisation was, if not an issue regulated at the European level, clearly an issue of concern in the context of the development of European Union migration policy. However, the interest in regularisation did not immediately translate into an explicit and open consideration of regularisation as a policy option in the Commission’s proposals for the elaboration of policies on illegal migration. In its 2000 Communication on a community immigration policy formulated subsequent to the Tampere council conclusions, the Commission stressed that efficient management of migration “requires action at all phases of movement of persons, in order both to safeguard legal channels for admission of migrants and for those who seek protection on humanitarian grounds while at the same time combating illegal immigration.” 312 The Communication thus sees policies on illegal migration as a prerequisite for the development of more open policies on legal migration. The communication highlights the complexity of illegal migration and stresses the need for a comprehensive approach, without, however, mentioning regularisation as part of a possible policy approach: “The phenomenon of illegal immigration consists of a number of interlinked phases and each has to be tackled systematically with specific measures. These include action in source and transit countries, police cooperation to pool knowledge of trafficking operations which by their nature are international, action at the point of entry including border controls and visa policies, legislation against traffickers, help for victims and their humane repatriation.” 313 Although repeatedly referring to regularisation practices of Member States, the communication refrains from an evaluation of whether regularisation can be an effective policy tool to address irregular migration. By contrast, the Commission communication on a common policy on illegal migration adopted a year later seems to suggest that, generally, regularisations are not an appropriate 311 See for an earlier review Verbruggen, N. (2005): ‘General Policy Trends Regarding Undocumented Immigration in the EU’. In:Heckmann, F., Wunderlich, T. (eds.): Amnesty for Illegal Migrants? Bamberg: efms pp. 33-37 312 Communication from the Commission to the Council and the European Parliament on a Community immigration policy. COM (2000) 757 final, p.12 313 Ibid. 103
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REGINE Regularisations in Europe St
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CONTRIBUTORS Principal authors Mart
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Preface In December 2007, the Europ
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1 Terms, definitions and scope 1.1
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Table 1: Types of illegal or irregu
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1.3 Freedom of movement rights and
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1.4 The meaning of ‘regularisatio
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Regularisation Mechanism A regulari
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2 Previous comparative studies on r
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Generally, the focus of SOPEMI repo
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enefiting from regularisation has s
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amnesty and moreover involved (limi
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2. 3 The Odysseus study on regulari
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etween expediency and obligations c
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Sunderhaus identifies several ratio
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whether it can be attributed to pul
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Box 2: 3-tier earned regularisation
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measures; it does address questions
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3.1.1 Regularisation Programmes Ove
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Nine Member States provided details
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Figure 3 Grants of regularised stat
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Box 3: Regularisation policy in Swi
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3.2 Regularisation as a policy resp
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Table 5: Comparative table of regul
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case in Europe, alongside the more
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that a year after regularisation so
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treatment according to nationality,
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iii. issues of advance planning iv.
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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
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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
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Page 99 and 100: for irregular migrants, while Italy
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Page 103 and 104: considered to be “flexible, adapt
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Page 107: of international protection, it is
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
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Page 121 and 122: nor need it be seen as an endorseme
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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
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European Commission, Proposal for a
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