An EU Regularization Directive. An effective solution to the enforcement deficit in returning irregularly staying migrants
| Published date | 01 December 2019 |
| Date | 01 December 2019 |
| DOI | 10.1177/1023263X19866541 |
| Author | Kevin Fredy Hinterberger |
| Subject Matter | Articles |
Article
An EU Regularization
Directive. An effective
solution to the enforcement
deficit in returning irregularly
staying migrants
Kevin Fredy Hinterberger*
Abstract
A key challenge in migration governance at the EU level has been that of ‘combatting’ irregular
immigration. Perhaps one of the most pressing structural problems regarding the EU’s return
policy is the enforcement deficit in returning irregularly staying migrants. Even though Member
States must issue a return decision according to the Return Directive, only 40% of such decisions
are enforced. Despite all of the political and legal efforts made, the EU is not making any significant
progress in enforcing the rules laid down in the Return Directive. This contribution explores a
different legal approach that is already used rather extensively in national legislation of EU Member
States, which targets irregular residence through a differentiated system of granting residence
permits, that is, regularizations. Hence, this paper argues for an EU Regularization Directive, which
could contribute to a reduction in the number of irregularly staying migrants. Through such a
Directive, which would complement the existing EU return policy, a more effective ‘combatting’ of
irregular immigration at the EU level could be achieved.
Keywords
Comparative legal analysis, deportation, EU Migration Law, EU Ret urn Directive, fundamental
rights, irregularly staying migrants, regularization, removal, residence right, return deficit
* Austrian Federal Chamber of Labour, Vienna, Austria
Corresponding author:
Kevin Fredy Hinterberger, Austrian Federal Chamber of Labour, Prinz Eugen-Strasse 20-22, Vienna 1040, Austria.
E-mail: kevin.hinterberger@akwien.at
Maastricht Journal of European and
Comparative Law
2019, Vol. 26(6) 736–769
ªThe Author(s) 2019
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DOI: 10.1177/1023263X19866541
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1. Introduction – Framing the problem
One of the key challenges in migration governance at the EU level has been that of ‘combatting’
irregular immigration.
1
It was one of the core themes – besides from asylum policies
2
–inthe
controversial debates surrounding the ‘long summerofmigration’in2015andtheclosingofthe
Balkan Route.
3
Nevertheless, these debates represent only the tip of the iceberg. The structural
problems in the so-called ‘fight’ against irregular immigration are, to stay with this analogy,
below sea-level and, hence, often not adequately addressed. The present contribution will ana-
lyze what is probably the most pressing aspect of this issue: the enforcement deficit of irregularly
staying migrants.
4
I will assess the reasons for said deficit in the current EU policy on return and
propose a concrete policy recommendation, namely, regularizations based on a comparative
legal analysis.
In order to provide an overview of the terms used, they shall be explained briefly. ‘Irregularly
staying’ is used as a synonym for ‘illegally staying’ in the Return Directive and denotes the legal
status of those migrants who do not have a right to stay.
5
‘Migrants’, in this contribution, are
understood only as specific third-country nationals. Union citizens,
6
EEA citizens, Swiss citizens,
beneficiaries of international protection
7
and family members of these are excluded from the scope
of the analysis.
8
1. Article 79(1) Consolidated Version of the Treaty on the Functioning of the European Union [2016] OJ C202/1 (TFEU).
See Section 2.B.1 and in this regard F. Lutz, ‘Non-removable Returnees under Union Law: Status Quo and Possible
Developments’, 20 European Journal of Migration and Law (2018), p. 50; B. Menezes Queiroz, Illegally Staying in the
EU: An Analysis of Illegality in EU Migration Law (Hart, 2018), p. 1 et seq.; European Migration Network, The
effectiveness of return in EU Member States: challenges and good practices linked to EU rules and standards – Synthesis
Report, p. 13.
2. Furthermore, asylum policies, securing the external borders and legal migration are in the center of attention; compare
Commission Communication on a European Agenda on Migration, COM (2015) 240 final.
3. I prefer the wording ‘longsummer of migration’ because it was rathera historical and structural collapseof the European
border regime underthe pressure of the certain migration movements than a ‘migration/refugeecrisis’; compare S. Hess
et al. (eds.), Der langeSommer der Migration: Grenzregime III(Assoziation, 2016). See further D. Thym, ‘The ‘‘refugee
crisis’’as a challenge of legaldesign and institutionallegitimacy’, 53 CML Rev (2016),p. 1545 or M. den Heijer, J. Rijpma
and T. Spijkerboer, ‘Coercion, Prohibition and Great Expectations: The Continuing Failure of the Common European
Asylum System’, 53 CML Rev (2016), p. 607. For an analysis of the closing of the Balkan Route see Le Monde diplo-
matique (German Edition), ‘Auf der Balkanroute’, Le Monde diplomatique (German Edition) (2016).
4. In other words B. Menezes Queiroz, Illegally Staying in the EU: An Analysis of Illegality in EU Migration Law,p.4.
5. Article 2(1) and 3(2) Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on
common standards and procedures in Member States for returning illegally staying third-country nationals, [2008] OJ L
348/98 (Return Directive). Compare C. Costello, The Human Rights of Migrants and Refugees in European Law (OUP,
2015), p. 64-65 and K.F. Hinterberger, ‘A Multi-Level Governance Approach to Residence Rights of Migrants and
Irregular Residence in the EU’, 20 European Journal of Migration and Law (2018), p. 183. The European Commission
uses both ‘illegally’ and ‘irregularly staying’; compare Recital 11 and 19 Commission Recommendation (EU) 2017/432
on making returns more effective when implementing the Return Directive [2017] OJ L 66/15.
6. Articles 20-21 TFEU. For an overview see P. Boeles et al., European Migration Law (2nd edition, Intersentia, 2014),
p. 30 et seq.
7. Article 2(b) Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on standards for
the qualification of third country nationals or stateless persons as beneficiaries of international protection, for a uniform
status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted, [2011]
OJ L 337/9 (Qualification Directive).
8. Compare K.F. Hinterberger, 20 European Journal of Migration and Law (2018), p. 183 et seq.
Hinterberger 737
The central legal tool of the EU’s return policy is the Return Directive. It imposes an obligation
on Member States to issue a return decision against every migrant staying irregularly in the EU.
9
However, issuing a return decision does not necessarily entail the effective return of a migrant. In
order to gain a better idea of the quantitative dimension of the issue, on a yearly basis, only around
40%of all return decisions are enforced.
10
In 2017, for example, in all 28 Member States of the
EU, 516,115 return decisions were issued and only approximately 188,905 migrants voluntarily
returned or were deported to their respective countries of origin (327,211).
11
Cautiously defined,
‘the issue concerns up to 300,000 migrants per year’.
12
Hence, it has to be concluded that the EU
and all its 28 Member States face a deficit in the enforcement of returns of irregularly staying
migrants.
13
Furthermore, the latest reliable data from the year 2008 indicates that approximately 1.8 to
3.8 million migrants were residing unlawfully in the EU.
14
The European Commission assumes
that, according to the Eurostat database, about 1 million migrants were irregularly staying in the
EU in 2017.
15
However, the Eurostat data have to be critically reviewed,
16
because the definition
of ‘third country nationals found to be illegally present’ only covers persons ‘who are apprehended
or otherwise come to the attention of national immigration authorities’.
17
Consequently, not all
irregularly staying migrants are comprised within said definition and it is more reasonable to
assume that the numbers are at least on the same level as in 2008 (1.8 to 3.8 million).
18
It may
also be possible that the ‘long summer of migration’ has further inflated the numbers of irregularly
staying migrants,
19
because of, inter alia, rejected applications for international protection.
9. Article 6(1) Return Directive. See Section 2.A.1.
10. Commission Communication on the Delivery of the European Agenda on Migration, COM(2017) 558 final, p. 9 and
Commission Communication on a More Effective Return Policy in the EU – a Renewed Action Plan, COM(2017) 200
final, p. 2. The return rates to African countries are under 30%.
11. European Commission, State of the Union 2018 - A stronger and more effective European return policy, 12 September
2018, p. 1.
12. F. Lutz, 20 European Journal of Migration and Law (2018), p. 30.
13. Compare A. Desmond, ‘Regularization in the EU and the United States. The Frequent Use of an Exceptional Measure’,
in A. Wiesbrock and D. Acosta Arcarazo (eds.), Global Migration: Old Assumptions, New Dynamics Vol I (Praeger,
2015), p. 70; F. Lutz, 20 European Journal of Migration and Law (2018), p. 29-30 and J. Farcy, ‘Safeguards Pending
Return and Access to Rights for Non-Removable Migrants’ in P. de Bruycker, G. Cornelisse and M. Moraru (eds.), Law
and Judicial Dialogue on the Return of Irregular Migrants from the European Union (Hart, 2020, forthcoming).
14. Commission Report Project Clandestino – Final Report No. CIS8-044103 (2009), p. 11-12 and 105-106.
15. Commission Communication on the Delivery of the European Agenda on Migration, COM(2017) 558 final, p. 9.
16. Compare F. Wehinger, ‘Do amnesties pull in illegal immigrants? An analysis of European apprehension data’, 1
International Journal of Migration and Border Studies (2014), p. 234-236, and for a critical analysis of the Eurostat-
data on asylum seekers O.J. Kleist, ‘Warum weit weniger Asylbewerber in Europa sind, als angenommen wird:
Probleme mit Eurostats Asylzahlen’, 9 Zeitschrift fu¨r Ausla¨nderrecht und Ausla¨nderpolitik (2015), p. 294.
17. European Commission, ‘Enforcement of Immigration Legislation: Eurostat metadata’, Eurostat (2015), http://ec.
europa.eu/eurostat/cache/metadata/en/migr_eil_esms.htm.
18. See A. Triandafyllidou and D. Vogel, ‘Irregular Migration in the EU: Evidence, Facts and Myths’, in A. Trianda-
fyllidou (ed.), Irregular Migration: Myths and Realities (Routledge, 2010), p. 298-299.
19. Eurostat News Release, ‘Record number of over 1.2 million first time asylum seekers registered in 2015’, 4 March
2016, 44/2016; Eurostat News Release, ‘1.2. million first time asylum seekers registered in 2016’, 16 March 2017, 46/
2017; Eurostat News Release, ‘650 000 first-time asylum seekers registered in 2017’, 20 March 2018, 47/2018.
Compare J. Farcy, in P. de Bruycker, G. Cornelisse and M. Moraru (eds.), Law and Judicial Dialogue on the Return of
Irregular Migrants from the European Union.
738 Maastricht Journal of European and Comparative Law 26(6)
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