REGINE Regularisations in Europe Final Report - European ...

3.3.2 Policy effectiveness of regularisation mechanisms
Most Member States do have at least limited mechanisms in general immigration legislation under
which illegally staying persons can be regularised on specific humanitarian grounds. 123 The grounds
for awarding humanitarian stay are varied (see §3.1.2) and may include family or other ties to the
country of residence, medical grounds, ‘hardship’ (which may include both of the former), and
protracted asylum procedures. In addition, some Member States also utilise such mechanisms to
‘rectify’ problems resulting from legislative changes. 124 However, humanitarian mechanisms are often
used to award more secure permits to persons who otherwise do not meet the conditions for a superior
legal status or who are residing on restricted, temporary permits and have, contrary to expectations
and the terms of their stay, developed substantial ties with their country of residence. 125 This also
suggests that the target population of regularisation mechanisms in EU Member States actually
includes a variety of categories of persons who are, strictly speaking, not illegally staying. 126
In sum, regularisation mechanisms provide a flexible legal means to address specific situations that
cannot easily be solved otherwise. This suggests that regularisation mechanisms play an important
functional role as a corrective measure supporting comprehensive strategies of managed migration
and allowing a flexible accommodation of humanitarian and other concerns.
Gauging the policy effectiveness of regularisation mechanisms is an impossible task, given the
massive deficit of data noted above (§3.1.2). Whereas there are data deficits and other problems with
regularisation programmes, varying according to country, the situation with mechanisms is far worse.
In particular, we note problems in the following areas:
i. lack of transparency in procedures, often with arbitrary outcomes
ii. issues of resource allocation – unknown costs of the process
123 We exclude the issuing of (temporary) residence permits under Council Directive 2004/81/EC of 29 April.
2004 on the residence permit issued to third-country nationals who are victims of trafficking in human beings or
who have been the subject of an action to facilitate illegal immigration, who co-operate with the competent
authorities. First, like asylum, subsidiary and refugee status, this is primarily a protection related permit.
Secondly, and perhaps more important, permits issued under the directive do not create an entitlement to legal
residence and are explicitly of a temporary nature. Thus, the permit caters only for immediate protection needs
and in a sense, in particular as smuggled migrants are concerned, has a functional role, namely to support legal
proceedings against traffickers and human smugglers.
124 For example, the UK domestic worker regularisation programme implemented between July 1998 and
October 1999 aimed at rectifying expected problems following an amendment of the Overseas Domestic
Workers Concession announced on 23 July 1998 (See REGINE country study for the UK). However, anecdotal
evidence suggests authorities often use also other, informal mechanisms to rectify ‘practical’ problems resulting
from changes of immigration legislation including awarding residence permits despite conditions not being met.
There is also evidence that in cases where applications from abroad have been made mandatory in the case of
family reunification, authorities have been advising applicants already in the country how to best apply from
“near abroad” .(Informal information gathered in the ICMPD-led project on “Civic stratification, gender, and
family migration policies in Europe”. On the project, see http://research.icmpd.org/1233.html) .
125 For example, in Belgium a significant number of students, who had developed family or other ties to
Belgium, apparently benefited from regularisation mechanisms under article 9.3 of the law of December 15th
1980 "Betreffende de toegang tot het grondgebied, het verblijf, de vestiging en de verwijdering van
vreemdelingen." (Information provided by Koen Dewulf (Centre for Equal Opportunities and Opposition to
Racism) in the framework of the International Seminar on Longitudinal Follow-up of post-immigration patterns
based on administrative data and record-linkage, Belgian Federal Science Policy, Brussels, 23 June 2008.)
126 Apart from persons on temporary, restricted permits, this also includes asylum seekers who, for the duration
of their asylum procedure, are legally staying.
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