REGINE Regularisations in Europe Final Report - European ...

varying types of illegal stay. Although illegal stay includes all types of stay which do not conform to
notions of ‘legal stay’ (as defined in different national contexts), persons without residence status but
‘known’ and tolerated by the authorities may not be included in national definitions of illegal stay. 9
For its part, the Commission seems to take a very broad view of what constitutes ‘illegal stay’: “e.g.
expiry of a visa, expiry of a residence permit, revocation or withdrawal of a residence permit, negative
final decision on an asylum application, withdrawal of refugee status, illegal entrance”. 10 Furthermore,
the Return Directive includes specifically those third country nationals “who no longer fulfil” the
conditions of legal entry, stay or residence. Thus, holders of expired residence permits are de jure
illegally residing, apparently regardless of the circumstances that led to this.
The Return Directive’s discussion 11 states that there is no attempt to “address the reasons or
procedures for ending legal residence”; at present, there is also no Community instrument for
addressing the reasons or procedures for beginning legal residence. Given that both of these issues are
germane to the phenomenon of ‘illegal stay’, it would seem that regularisation of illegally staying
third country nationals must logically remain, for the time being, as a matter for national policy.
1.2 Types of illegal or irregular status
The terminology used in the literature is extensive, inconsistent and generally problematic through
lack of definition. Such terms include ‘clandestine’, ‘irregular’, ‘illegal’, ‘unauthorised’,
‘undocumented’, ‘sans papiers’; we do not find it useful here to rehearse the arguments for and
against any particular terminology. 12 Suffice it to say that we are essentially concerned with
conformity or non-conformity with legal requirements: an individual’s degree of ‘compliance’ 13 with
national legislation is complex and multifaceted, and in practice is more complex than the definition
embraced by the Return Directive would suggest. Table 1 gives an indicative typology of the complex
range of actualities of conformity with national immigration and labour legislation. We distinguish
four main aspects of legality/formality 14 :– entry, residence, employment (legal) and employment
(formal). The dimension of ‘entry’ merely refers to the legality of entering the territory, with a crude
distinction of legal or illegal; the dimension of ‘residence (nominal)’ identifies the formal residence
9 There is a tendency for some Member States to define third country nationals who are unlawfully staying, but
known to the authorities, as being outside of the population of illegal residents. In a strictly legal sense,
documented immigrants whose residence is unlawful should be considered part of the wider population of
irregular or illegal residents. Thus, Germany does not consider tolerated persons as illegally staying whereas the
Netherlands includes tolerated persons in its national definition of illegally resident persons (see REGINE
country fact sheets on Germany and the Netherlands).
10 Proposal for a Directive … for returning illegally staying third country nationals, op. cit, p.6.
11 See Fn. 1
12 For a more extensive discussion see Jandl, M., Vogl, D. and Iglicka, K. (2008): ‘Report on methodological
issues’, Unpublished Draft Report for the project Clandestino - Undocumented Migration: Counting the
Uncountable. Data and Trends Across Europe.
13 For the concept of ‘compliance’, see Ruhs, M. and Anderson, B. (2006): Semi-compliance in the migrant
labour market, Working Paper 30. COMPAS, University of Oxford.
14 We do not document here, for simplicity, the cases of withdrawal of residence permits consequent to criminal
conviction, assessment of public policy risk, or breach of the conditions of residence.
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