WG 4 - Solutions for protracted irregularity

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1 Issues for consideration Fabian Lutz, European Commission, DG HOME Contribution for WG 4 of FRA Conference 2011

2 General considerations 1 The Return Directive leaves Member States the choice of either systematically issuing return decisions to existing stocks irregular migrants or to grant permits (regularise) these persons. This approach of obliging MS to say AorBshould help to reduce grey areas. It may, however, also increase in practice the absolute number of nonremovables (cases in which MS issue return decisions which cannot be enforced due to practical or legal obstacles for removal). This will in particular be the case in those MS which so far tolerated the presence of large numbers of irregular migrants without initiating return procedures.

3 General considerations 2 Regularisation study carried out by ICMPD in 2008: absence of clearly defined rules for "non-removables" in is one of the underlying reasons for the subsequent conduct of large scale regularisation measures, which, according to the Pact, should be avoided. number of persons involved in regularisation estimated at between 5 and 6 million. A significant share of these are assumed to be non-removables. study suggests that an appropriate answer would be clear and transparent rules in all MS concerning the treatment and possible grant of legal status for this category of persons.

4 General considerations 3 Currently only partly harmonised by EU acquis (Article 14 Return Directive): 1. Member States shall ensure that the following principles are taken into account as far as possible in relation to third-country nationals during the period for voluntary departure granted in accordance with Article 7 and during periods for which removal has been postponed in accordance with Article 9: (a) family unity with family members present in their territory is maintained; (b) emergency health care and essential treatment of illness are provided; (c) minors are granted access to the basic education system subject to the length of their stay; (d) special needs of vulnerable persons are taken into account. 2. Member States shall provide the persons referred to in paragraph 1 with a written confirmation in accordance with national legislation that the period for voluntary departure has been extended in accordance with Article 7(2) or that the return decision will temporarily not be enforced.

5 What kind of action? Possible legislative action addressing the issue needs to tackle two issues 1. Situation during irregularity = Rules relating to conditions of stay (access to labour market, health services. housing, education, ) 2. Pathway out of irregularity = Rules relating to granting residence permits (acquisition of a consolidated right to stay, upon fulfilment of certain conditions) 2 Key question: - Is there a case for tackling the issue at EU rather than at national level? - Would such rules be a pull-factor for irregular migration?

6 Is there a case for harmonisation at EU level 1? Possible arguments (pros and cons): 1. Close a gap in the EUs migration policy: The existence of nonremovable persons is a common phenomenon (problem) in all MS. In order to be effective, the development of a common migration policy must be comprehensive and cover all categories of third country nationals staying in the EU including non-removables. 2. Prevention of secondary movements: Common rules should help avoiding that non-removable persons are "shopping around" and try to move to those Member States which offer the best conditions of stay. This phenomenon is - by nature - difficult to quantify but Sangatte demonstrates clearly its existence.

7 Is there a case for harmonisation at EU level 2? Possible arguments ctd: 3. Avoid pull-factor for irregular immigration: The existence of comprehensive rules regulating the treatment of non-removable persons will reduce the need for individual Member States to adopt uncoordinated ad-hoc measures (such as generous one-shot regularisation measures) likely to be perceived as a "reward for irregularity" and a potential stimulus for further irregular immigration. 4. "Common discipline": In the same vein, a legally binding "common discipline" amongst Member States concerning the treatment of non-removable persons will prevent Member States from adopting "permissive" national measures which may cause "reputational damage" to the EU as a whole.

8 Is there a case for harmonisation at EU level 3? Possible arguments ctd: 5. Maintain public acceptance of sustainable EU migration policy: The existence of large numbers of marginalised "non-removables" with limited possibility to work in order to come up for their own living contributes to a negative public perception of migration. Common standards which would allow "non-removables" to work or to acquire a consolidated status may contribute to alleviate this phenomenon and to do away with negative stereotypes. 6. Foster human rights compliance: The EU is committed to a human and dignified treatment of returnees at all stages of the return procedure (including periods during which removal is postponed for practical or legal reasons) - in full compliance with international law. The creation of Union law in this field (and the related enforcement mechanisms) may improve human rights compliance in Member States.

9 Is there a case for harmonisation at EU level 4? Possible arguments ctd: 7. Upgrade the public image of the EU vis-a-vis third countries: Unsatisfactory treatment of migrants may cause damage to the reputation of the EU as a whole even if it concerns only the situation in one or few Member States. Common minimum standards may improve this situation. 8. Close a gap in the EUs asylum policy: Most aspects of asylum policy are being progressively harmonised at Community level. The divergences in approach on non-removable rejected asylum seekers may cause secondary movements of asylum-seekers towards the Member States with more 'permissive' policies.