Handling Irregular Immigration in the EU

Irregular or undocumented migration in the EU is a multifaceted phe­nomenon. Its complexity arises from the fact that irregular migrants are an amazingly heterogeneous category, raising ques­tions about the adequacy of dealing with it without addressing its various external pageintricaciescall_made. Irregular migration has also been highly politicized, both at the national and EU levels, with rheto­ric often depicting it as an 'invasion'. This politicization has in some cases led to its external pagecriminalizationcall_made. However, this politicization is not matched by the number of irregular migrants actually entering the EU. According to the most reliable statistics, there were only between 1.9 and 3.8 million irregular migrants in 2008, barely representing between 0.39 and 0.77 percent of the total EU external pagepopulation of around 500 million.call_made

To understand and correctly assess this phenomenon and European responses, it remains vital to explore the past, present and future of measures that the EU and its member states have implemented in an attempt to deal with the issue, most notably regularization procedures and the adoption of various European directives.

Why regularization matters

Irregular migration mostly follows from the lack of legal channels to enter or remain in a country, linked with the existence of an unregulated job market in certain sectors. The term 'irregular migrant' refers to a variety of external pagephenomena and peoplecall_made, from third-country nationals who enter the territory of a member state without authorization by land, sea and air with the help of organized criminal networks of smugglers and traffickers, to the largest group of people that enter legally with a valid visa or under a visa-free regime, but "overstay", to those who are unsuccessful asylum seekers who do not leave after a final negative decision. There is a last category which includes those external pagewho no longer fulfil the conditions of legal entry, stay or residencecall_made. Thus, holders of expired residence permits are de jure irregularly residing in a member state. This phenomenon, known as external page"befallen irregularity"call_made, results from slow bureaucracy and arises in some member states when a third-country national becomes unemployed and cannot renew a temporary residence permit for example.

There are two main options in dealing with irregular immigrants in the EU: regularization and deportation. While the EU as a whole has no competence to deal with regularization, individual member states have recurrently used regularization processes as a means of dealing with the problem. ' external pageRegularizationscall_made' are special programs which offer migrants in an irregular administrative situation the possibility to obtain a legal residence and work status upon fulfilling a certain set of conditions, such as having a job offer, a clean criminal record and a history of residence in that member state. Regularizations programs are crucial, as they have been the most important means for achieving legal status in Southern Europe although they have not been so central in Northern and Central Europe. There are some member states which have expressed reservations about regularization programs (such as Austria, France, Germany and Belgium), as they consider them to constitute a external pagepull-factor for future irregular immigrationcall_made.

However, the abandonment of regularization processes would certainly increase the extent of informal employment and the size of the informal sector, considering that there is a mismatch between efficient channels for regular immigration and the needs of workers in some sectors such as agriculture, construction or domestic help. The external pageEuropean Commissioncall_made has indeed stated on numerous occasions that these regular channels should be made available for labor migrants. This mismatch has been clearly revealed in Italy, where despite strong rhetoric against irregular migrants, the government had to launch a regularization procedure in 2009 through which 300,000 housemaids and caretakers asked for a residence permit. external pageThe final number of permits granted is still not known.call_made

In fact, between 1996 and 2008 there were 43 regularization programs implemented in 17 of the 27 EU member states. At least 3.2 million irregular migrants obtained legal status as a result of these external pageprogramscall_made. During negotiations for the adoption of the external pageEuropean Pact on Immigration and Asylumcall_madeundertaken when France held the EU presidency, a proposal to ban regularizations at the European level was brought up. This was finally not adopted external pagedue to the opposition of the Spanish governmentcall_made. The new 2009 EU multiannual program in the area of Justice and Home Affairs for the years 2010-2014, known as the external pageStockholm programcall_made, only refers to the need to improve the exchange of information on regularizations at the national level.

EU policies

The EU only obtained a clear-cut competence to regulate immigration issues in 1999 with the entry into force of the Amsterdam Treaty. Since its inception, addressing irregular immigration, including the repatriation of undocumented migrants, has formed a central part of the EU's common immigration policy. The EU always advocated the idea that an effective return policy was vital to ensur­ing public support for phenomena such as external pagelegal migration and asylumcall_made. It was understood that third-country nationals who did not have a legal status enabling them to stay in the EU, either on a temporary or permanent basis, should leave. A credible threat of forced return, the commission argued, would send a clear message to potential irregular migrants that irregular entry into the EU would not lead to external pagea stable form of residencecall_made.

With that background in mind the EU adopted a variety of legal instruments in relation to irregular immi­gration in the past decade. Among them, the external pageCouncil Directive 2001/40 on mutual recognition of decisions on the expulsion of third-country nationalscall_made, external pageCouncil Directive 2003/110 on assistance in cases of transit for the purposes of removal by aircall_made, and the 2004 Directive which defines the conditions for granting residence permits of limited duration external pageto third-country nationals who are victims of trafficking in human beings and who cooperate with authoritiescall_made. In 2010, however, the European Commission produced a external pagereportcall_madeon the implementation of this last directive in which it stated that the directive's impact had been insufficient in light of the reduced number of residence permits granted under it.

These instruments, however, were not comprehensive enough and did not take into account all the elements present in the repatriation of a migrant, such as removal, detention or the possibility of prohibiting re-entry. To that end, in 2008 the EU adopted, after a long and arduous negotiation process, Directive 2008/115 on common standards and procedures in member states for returning illegally staying third-country nationals, known as the external pageReturns Directivecall_made. The 24 member states bound by the directive (the UK, Ireland and Denmark are not subject to its application) should have implemented it by 24 December 2010, although most of them have yet to completely integrate it into national legislation.

The Returns Directive is considered to be the most contentious piece of legislation ever adopted by the EU in the area of immigration. Among its more controversial provisions is the possibility of detaining a migrant for a period up to 18 months, the possibility of a re-entry ban into the EU for a period of five years and the chance to detain and return unaccompanied minors. These provisions, among others, provoked much criticism from international organizations, such as the external pageCouncil of Europecall_made, and from external pageLatin American countries in particularcall_made, a major source of immigrants to the EU.

A year later the EU adopted the external pagedirective providing for minimum standards on sanctions and measures against employers of illegally staying third-country nationalscall_made. The rationale for this legal measure is that one of external pagethe elements that encourages irregular immigration is the possibility of finding workcall_made. Hence, the objective of the directive is to forbid the employment of irregular migrants by sanctioning employers who infringe that prohibition. This directive has also been criticized because the EU has not taken into account the fact that irregular immigration is very much linked with the external pagerigidity of national immigration lawscall_made. Member states are however set to implement this directive by 20 July 2011.

Looking forward

Irregular migration, a profoundly complex challenge, needs to be tackled through a variety of means, including external pagelegal immigration channelscall_made. Moreover, EU member states should put in place the necessary resources to deal with the problem: The efficient and timely issuance of residence permits or renewals is key, for example, as it ensures that third-country nationals do not fall into an ' external pageirregular situationcall_made'.

Finally, when an irregular migrant cannot be expelled, for whatever reason, member states should make use of the possibility provided by Article 6 of the Returns Directive of granting them an autonomous residence permit or other authorization offering a right to stay for compassionate, humanitarian or other reasons. The European Commission and the Court of Justice will continue to monitor the situation and should pay special attention to the incorrect or incomplete implementation of these key EU measures.