REGINE Regularisations in Europe Final Report - European ...

policy instrument and provides a principled argument that “[i]llegal entry or residence should not lead
to the desired stable form of residence.” 314 In the Commission’s view, demand for low skilled workers
and ready access to undeclared work are major factors driving illegal migration. Nevertheless, the
communication argues, “illegal residents cannot be considered as a pool to meet labour shortages.” 315
As a corollary, the emphasis of the communication’s policy proposals lies in strengthening border
management, including strengthening the common visa policy and adopting other preventative
measures, improving and strengthening information exchange mechanisms and the development of
common policies on readmission and return.
However, the Communication stresses that the fight against illegal migration should not compromise
the ability to provide protection to those in need of international protection and observation of the
rights of particularly vulnerable groups. “Measures relating to the fight against illegal immigration
have to balance the right to decide whether to accord or refuse admission to the territory to third
country nationals and the obligation to protect those genuinely in need of international protection.(…)
[W]hatever measures are designed to fight against illegal immigration, the specific needs of
potentially vulnerable groups like minors and women need to be respected.” 316
Whereas a subsequent Communication on policies on illegal migration adopted in 2003 basically
follows the same line of thinking, 317 the Commission Communication on Immigration, Integration and
Employment 318 adopted in the same year explicitly discusses regularisation as a possible policy option
and thus diverges from the stance adopted in the two previous communications. In particular, it
discusses regularisation in the context of broader policies on integration, arguing that “integration
policies cannot be fully successful unless the issues arising from the presence of [illegal immigrants]
are adequately and reasonably addressed.” Thus, the Communication values the possible role of
regularisation to integrate illegally resident third country nationals but also warns that regularisation
may encourage future illegal immigration. 319 This – more positive – approach towards regularisation
is also adopted in the Commission’s Study on the links between legal and illegal migration, published
in 2004. 320 The study acknowledges that “for pragmatic reasons the need may arise to regularise
certain individuals who do not fulfil the normal criteria for a residence permit.” The study notes the
different grounds on which regularisation measures have been implemented and observes the close
connection of regularisations on protection grounds and for humanitarian reasons with the asylum
system, while noting that “large-scale” regularisation on employment grounds, amongst others, also
indicates the presence of a certain demand for unskilled workers that cannot be satisfied by legal
314 Communication from the Commission to the Council and the European Parliament on a common policy on
illegal immigration COM (2001) 672 final, p.6
315 Ibid., p. 6
316 Ibid., p. 7
317 Communication from the Commission to the Council and the European Parliament in view of the European
Council of Thessaloniki on the development of a common policy on illegal immigration, smuggling and
trafficking of human beings, external borders and the return of illegal residents COM(2003)323) of 3 June 2003
318 Communication from the Commission to the Council, the European Parliament, the European Economic and
Social Committee and the Committee of the Regions on immigration, integration and employment, COM (2003)
336 final
319 Ibid., pp. 25-26
320 Communication from the Commission to the Council, the European Parliament, the European Economic and
Social Committee and the Committee of the Regions. Study on the links between legal and illegal migration.
COM (2004) 412 final
104