REGINE Regularisations in Europe Final Report - European ...

involve large numbers. Secondly, the use of regularisation is not necessarily indicative of broader
policy failures 332 but essentially reflects the need for complementary, corrective instruments which
allow states to respond to particular situations in a flexible manner. Thirdly, and most importantly,
this type of regularisation typically involves regularising persons in an irregular situation as a matter
of principle and rights. This perspective on regularisation has been largely ignored in current debates
on regularisation policy in the European Union. Indeed, as we argue in the following, there are certain
principles built into European migration policy which would lend themselves as guiding principles for
developing European Union policies on regularisation.
7.2 General objectives and normative principles underlying the European
Union framework for migration and international protection
We argue that many of the same principles which have underpinned the development of European
Union migration policies under the Tampere and the Hague agendas could inform the development of
policies on regularisation – whether in the form of strong measures (including the elaboration of
primary legislation) or in the form of ‘soft measures’ (e.g. the identification of common principles
upon which Member States should base their policies of regularisation). The following brief review of
relevant principles, however, should not be taken as an elaboration of criteria and principles for
regularising persons in an irregular situation, but principles that should inform the identification of
relevant normative standards.
The Commission Communication on a Community Immigration Policy of 2000 333 outlined several
basic principles on which Community migration policies should be built and that would provide
similarly useful principles to build a policy on regularisation, including transparency and
rationality, clear and simple procedures, and differentiating the rights of third country nationals
by length of stay. With respect to regularisation, this could mean that regularisation should be
conceived of as a secondary alternative to return, should return not be feasible within a set time limit
(and thus as a rational and transparent option directly tied to return). Setting a time limit, in turn,
would be based on the notion that a form of residence-based rights should also be available for
irregular migrants and that social and family ties that irregular migrants have developed in their
Member State of residence should be taken into account, as is actually the case in several European
Union Member States. Precisely because an irregular status is undesirable from a policy perspective
and constitutes an ‘irregularity’ that needs to be addressed, the status of irregular migrants must be
taken into account within the overall architecture of legal statuses: exit options for persons in such a
condition need to be devised – either in the form of return or through regularisations, should return
not be a viable option. Other key principles addressed in the same Communication are the right to
family reunification and the right of persons in need of international protection to access
protection.
332 However, regularisations of asylum applicants on the grounds of length of the procedure clearly indicate
policy failure.
333 COM(2000) 757 final, op. cit.
107