REGINE Regularisations in Europe Final Report - European ...

1 Terms, definitions and scope
1.1 The problem of negative definition
Defining ‘illegal stay’ is notoriously difficult and globally, states’ practices vary widely in regard to
whom they regard as illegally resident. In the European Union, the recently-agreed Return Directive 1
adopts a common definition of illegal stay, which also has been used in other relevant draft directives
from the European Commission. 2 Thus, Article 3(b) of the Return Directive stipulates:
"[I]llegal stay" means the presence on the territory of a Member State, of a third-country
national who does not fulfil, or no longer fulfils the conditions of entry as set out in Article 5
of the Schengen Borders Code 3 or other conditions for entry, stay or residence in that
Member State
Despite this common definition, however, the national definitions used in Member States still vary
widely and may need to be adapted when transposing the Directive. The problem of the real meaning
of such a definition arises at least partly because it constitutes an attempt to define something in a
negative sense 4 – that certain persons are not legally staying on the territory – with insufficient clarity
concerning the specific laws, or specific aspects of law, that may have been infracted. 5 An alternative
definition such as ‘lawful residence’ 6 also has a number of meanings in different national legal
systems, ranging from a very narrow interpretation in the UK, Spain and Portugal, 7 to a broader
concept of ‘legal stay’. 8 Thus, varying national immigration and labour laws (amongst others) lead to
1 Art. 3(b), Proposal for a Directive of the European Parliament and of the Council on common standards and
procedures in Member States for returning illegally staying third-country nationals, Council of the European
Union, Brussels, 25 June 2008, 10737/08.
2 E.g. Proposal for a Directive providing for sanctions against employers of illegally staying third-country
nationals, COM(2007)249 final; Proposal for a Directive of the European Parliament and of the Council on
common standards and procedures in member states for returning illegally staying third country nationals.
COM(2005)391 final.
3 Article 5 of the Schengen Border Code (Regulation (EC) No 562/2006 of The European Parliament and of the
Council of 15 March 2006 establishing a Community Code on the rules governing the movement of persons
across borders (Schengen Borders Code)) lists the following entry conditions: (a) possession of a valid travel
document or documents giving authorisation to cross the border; (b) possession of a valid visa, if required; (c)
justification of the purpose and conditions of the intended stay, sufficient means of subsistence, both for the
duration of the intended stay and for the return to their country of origin or onward travel; (d) no SIS alert has
been issued for the purposes of refusing entry; (e) persons entering are not considered to be a threat to public
policy, internal security, public health or the international relations of any of the Member States.
4 Exceptions lie with the Netherlands and Ireland, both of which have an official definition of illegal residence.
For more details, see European Migration Network (2007): Illegally Resident Third Country Nationals in EU
Member States (synthesis report), p. 11.
5 One major source of heterogeneity in the definition of illegal stay as set out by the Return Directive is Article 5
(1) (c) of the Schengen Border Code referred to in the directive. In the absence of a common admission policy,
it is Member States who define purposes and conditions of stay and who have the power to withdraw a right to
stay if conditions are not (or are no longer) met, unless the Third Country National is covered by Community
legislation on long-term residence, the rights of EU citizens and their families, or the family reunification
directive. Because of the power of Member States to specify purposes and conditions of stay, the concrete
definitions of illegality will naturally vary accordingly.
6 Note particularly the use of this concept by the ECJ in Singh (C-370/90), although the case is not about illegal
stay per se.
7 Excluding those with temporary legal stay, but not the right of residence.
8 “séjour légal” in France, “rechtmäßiger Aufenthalt” in Germany, and soggiorno legale in Italy.
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