Irregular migration in the EU

This blog post was submitted by PhD candidate Alan Desmond, who is reading for a PhD under the supervision of Dr. Siobhán Mullally

A number of recent studies throw new light on the phenomenon of irregular migration in the EU. Project Clandestino – Undocumented Migration: Counting the Uncountable Data and Trends Across Europe, funded by the European Commission, has found that there are fewer irregular migrants in the EU than previously assumed. While the European Commission had estimated that up to 8 million foreign nationals were residing in its territory without a right to legal residence, a detailed review of the situation in the Member States has led Clandestino researchers to estimate that the range is more likely between 2.8 and 6 million. Both figures were calculated for the year 2005. Flow trends indicate that irregular residence has since declined further. Clandestino makes the important distinction between irregular residence and irregular work with the phenomenon of irregular work by regular residents becoming more relevant in recent years with the growth of the EU and the rise in the number of EU citizens with the right to travel but not to work.

Project Clandestino includes a database which provides an inventory and a critical appraisal of data and estimates on irregular migration in the EU and in selected Member States as well as three transit countries (Morocco, Turkey and Ukraine).

In a series of research briefs and country reports, Project Clandestino highlights the pathways into and out of irregular status for migrants in the selected Member States. Ireland is not one of the countries included in the project but on the basis of Life in the Shadows, the excellent 2007 publication on irregular migration in Ireland from the Migrant Rights Centre Ireland (MRCI), it would seem that most irregular migrants in Ireland enter the country legally but subsequently become undocumented for a variety of reasons eg. overstaying visas.

Regularisation of Undocumented Migrants

One of the pathways out of irregularity identified by Project Clandestino is regularisation, a practice which is analysed in REGINE – Study on practices in the area of regularisation of illegally staying third-country nationals in the Member States of the EU, also funded by the European Commission and conducted by the International Centre for Migration Policy Development (ICPMD).

The study, commissioned by the European Commission subsequent to its
Communication on policy priorities in the fight against illegal immigration of third-country nationals (2006), examines policies and attitudes to regularisation in all 27 Member States. It defines regularisation broadly as “any state procedure by which illegally staying third country nationals are awarded a legal status” but it recognises that actual practices are more complex than such a neat definition would suggest: not all procedures that have regularising effects are explicitly designed as regularisation measures.

The study found that some 5 million applications for regularisations were recorded between 1996 and 2008, while the actual number may be significantly larger and may lie at up to 6 million. Some 3.5 million persons have been regularised over the same period.

The analysis of regularisation measures in the 27 EU Member States reveals that the great majority of EU Member States currently use, or have used, some sort of regularisation measure in the recent past. This is interesting in light of growing EU opposition to regularisation which culminated in an effort to commit the EU to a ban on mass regularisations of irregular immigrants in the European Pact on Immigration and Asylum agreed in 2008 during the French Presidency of the EU. Inclusion of the proposed ban was dropped from the final draft at the insistence of the Spanish government with the Pact now committing the European Council “to use only case-by-case regularisation, rather than generalised regularisation, under national law, for humanitarian or economic reasons.”

Two Types of Regularisation identified by REGINE

The study distinguishes between two types of regularisation, namely, regularisation programmes and regularisation mechanisms.

Programmes are not part of the regular policy framework but rather are specific measures which run for a limited period of time and typically target specific categories of non-nationals in an irregular situation. They usually involve larger numbers of persons and frequently target employed irregular migrants, often in an attempt to clamp down on irregular employment more generally. Criteria for regularisations through programmes are on the whole relatively transparent and clearly defined. Among the most frequent criteria used are: residence in the country before a certain date, length of residence, proof of employment.

Mechanisms on the other hand are part of the regular migratory policy framework and are thus permanent measures. Criteria and procedures are often less well defined, leaving substantial room for administrative discretion. In contrast to programmes, permanent mechanisms typically are small-scale measures, regularising only relatively small numbers of irregular migrants and are focused largely on humanitarian cases. Over time, however, the number of persons regularised through mechanisms can be substantial and comparable with the number of persons regularised through programmes.

Regularisation in Ireland

In its profile of Ireland the REGINE study categorises as a regularisation programme the Irish Born Child Scheme (IBC/05 scheme) which was carried out in 2005 to deal with the many parents of Irish citizen children who were undocumented and who faced the prospect of being deported. The scheme allowed such parents to apply for permission to remain on the basis of their parentage of an Irish child born in the State before 1 January 2005, subject to certain criteria.

The study notes that “there was no clear legislative basis for the introduction of the “IBC/05” scheme – it forms part of the general provisions of Section 3 of the Immigration Act 1999.” The number of applicants was 17,900 of whom 16,693 were granted the status, which status was a temporary, renewable, permission to remain in Ireland with the right to work. 14, 101 persons applied for renewal with13,838 persons granted renewal.

On the basis of submissions made by the Immigrant Council of Ireland (ICI), the study categorises as a regularisation mechanism the practice in Ireland between 1996 and 2003 of granting non-national parents of Irish citizen children permission to remain in the State. This policy ended in February 2003 with 11,500 applications outstanding. It was in response to such applications that the IBC/05 scheme was introduced; the scheme also dealt with applications from persons who entered after February 2003 and before the Constitution was amended in 2005 to preclude the acquisition of citizenship by virtue of birth in the State alone.

Also categorisable as a regularisation mechanism according to the study is section 4 of the Immigration Act, 2004. It provides the Minister for Justice, Equality & Law Reform, or an immigration officer on his behalf, statutory discretion to give a non-Irish national permission to be in the State and to impose conditions on such permission in relation to engagement in employment or duration of stay as he deems fit. Section 4 vests the Minister with particular statutory functions that must be exercised by him or her. The exercise of these functions must be governed by the requirements of administrative law in relation to the exercise of discretionary powers. However, despite the clarity of this legislation, the Minister claims that he is not obliged to consider applications for residency made pursuant to section 4 in a situation where a person is in the country without permission and/or has made an unsuccessful application for refugee status. While the Minister claims not to be bound by section 4 of the 2004 Act there are many instances where the Minister has regularised migrants by granting them permission to remain, for example, based on marriage to an Irish national or being the parent of an Irish child.

A further regularisation mechanism provided for in Irish law is leave to remain pursuant to section 3 of the Immigration Act, 1999. This section provides that an immigrant in respect of whom a deportation order has been issued must be notified in writing of the Minister’s proposal to deport them and the reasons for their proposed deportation. Within fifteen working days from the date of the notification letter, these persons may make representations in writing to the Minister setting out the reasons why they should be allowed to remain in the State. The Minister then has the discretion not to deport a person but to offer him or her leave to remain.

REGINE’s identification of existing regularisation mechanisms in Irish law is timely given the forthcoming Immigration, Residence and Protection Bill (IRP Bill) which sets out a legislative framework for the management of inward migration to Ireland and lays down a number of principles governing the presence in the State of foreign nationals, including the obligation on a foreign national who is unlawfully in the State to leave. It sets out statutory processes for applying for a visa, for entry to the State, for residence in the State and for being required, when necessary, to leave.

The IRP Bill does not, however, include any regularisation mechanism. The ICI, in its Analysis of the IRP Bill 2008, expresses concern that the Bill effectively abolishes the regularisation mechanism provided for in the aforementioned section 3 of the Immigration Act, 1999 whereby the deportation of an immigrant must be notified to him or her and he or she must be given 15 working days to make submissions as to why he or she should not be removed from the State. On the basis of such submissions the Minister may grant leave to remain. Section 4(5) of the IRP Bill, however, allows for the summary deportation of unlawfully present immigrants as it provides that they “need not be given notice of a proposal to remove” them from the State.

The ICI expresses grave concern that the repeal of section 3 of the 1999 Act “may lead to the summary deportation of vulnerable migrants who may have become unlawfully resident in the State through no fault of their own.” It calls for an avenue to deal with and provide for persons in exceptional circumstances. Currently, the Bill allows the Minister no flexibility to deal with persons whose residence permits are non-renewable; who were not able to apply for a modification of their existing residence permit; who did not manage to apply for the renewal of their permit within the specified time period. Once classified as ‘unlawfully present’ a foreign national no longer has any possibility of regularising his or her status in the State.

The ICI believes that the Bill needs to make clear that discretion can be exercised to allow account to be taken of exceptional cases and provides the example of a woman resident in Ireland on the basis of a marriage to an Irish national who, as a result of domestic violence, no longer lives in the same household with her husband. In such circumstances she would need to apply for the modification of her residence permit in order to remain in the State. Where she has not done so within three months from the expiry of her current permit, the legislation as drafted does not allow for the renewal of her permit even if the reason for her failure to apply are threats made by her husband to have her deported if she went near the Gardaí.

Despite, or perhaps because of, the fact that the IRP Bill does not provide for an unlawfully resident non-national to regularise his or her status in the State, the Government agreed in September 2008 as part of the social partnership talks to set up a programme to regularise the status of undocumented migrant workers in Ireland who previously held work permits.

The move was characterised by the Irish Times as a significant U-turn by the Government, which previously signalled that any such move could provide an incentive for illegal immigration. It would appear now, however, that the U-turn manoeuvre may not be executed given reports earlier this year that the Government will not be introducing a “bridging visa” for migrants who had become undocumented through no fault of their own. This U-turn upon a U-turn is presumably due to the failure of social partnership talks in February. But whatever the reason, the result is the same: no possibility for unlawfully present non-nationals to regularise their status.

Finally, it is worth noting that one of the methods of data-gathering employed as part of the REGINE study was the distribution of a questionnaire to EU Member States. In relation to common EU actions and a standardised approach to regularisation, the official position of the Department of Justice, Equality and Law Reform (DJELR) is that the ministry has ‘no views’ on the subject. One hopes that this is not the official position of the DJELR on all common EU actions in the area of immigration.

Reactions to the Immigration, Residence and Protection Bill 2008

Yesterday, the Minister for Justice, Equality and Law Reform, Mr. Brian Lenihan T.D., introduced the Immigration, Residence and Protection Bill 2008. This Bill aims to consolidate Irish immigration and asylum legislation. In a press release explaining the rationale behind the Bill, Minister Lenihan stated that the aims of the Bill are inter alia to streamline the consideration of refugee and subsidiary protection applications; to prevent the abuse of the protection system by limiting appeal opportunities and restricting the right to judicial review. The Minister further noted that the Bill aims to regulate ‘regular migration’ into the State and to provide for a long term residence status to certain categories of migrants. Further to this, the Bill contains provisions on the removal of those who are not lawfully present in the State.

The 2008 Bill may be broken into nine Parts. Part 1 of the 2008 Bill deals with preliminary issues of commencement, interpretation and enforcement. Part 2 gives a definition of those who can be considered lawfully and unlawfully present, and prohibits those unlawfully within the State from accessing state services, unless there are exceptional circumstances. Part 3 of the Bill deals with issues relating to visas. Provisions dealing with entry into the State (Part 4), residence (Part 5) and removal from the State (Part 6) are also present in this Bill. Part 7 outlines the new procedures in place for the assessment of refugee and subsidiary protection applications are also in place. Further matters relating to the grant of refugee, subsidiary or other discretionary protection status are also outlined in the Bill. Part 7 further provides for the detention of certain protection applications, the issuing of protection permits and allows the Minister, after certain considerations are taken into account, to classify a country of origin or any other third country as ‘safe’. Part 8 makes further provisions, including allowing victims of trafficking a period of ‘reflection and recovery’, the extent of the powers of An Garda Siochána and Immigration Officers. The Bill also seeks to place restrictions on marriage for those who are foreign nationals. In addition, there are special and strict limits on judicial review including making legal representatives liable for costs where claims are regarded as ‘frivolous or vexatious’ by the High Court. Part 9 of the Bill deals with transitional provisions.

The reaction of political parties to the Bill is somewhat mixed. Coalition government partners, the Green Party welcomed the Bill. Fine Gael welcomed proposals to speed up the asylum process but were concerned with the continuing discriminatory effect the Bill would have in making it harder for Irish citizens to reside in Ireland with their non EU spouses. The Labour Party has criticised the large degree of discretion which the Bill places in the hands of the Minister for Justice. Sinn Fein raised concerns regarding the broad ministerial discretion within the Bill, family reunification and lack of regard to victims of trafficking.

The reaction of a number of relevant NGOs has been reported in the Irish Times [subscription required]. Denise Charlton of the Immigrant Council of Ireland has stated that the Bill fails to deal with the “delays in decision-making, inconsistent decisions [and] lack of clarity.” Such concerns were also raised by the Migrant Rights Centre Ireland. Both the ICI and MRCI also criticised the Bill for failing to provide a clear right of family reunion for migrants. Ken Murphy, Director General of the Law Society of Ireland has voiced concern over the provisions regarding the possible financial liability of legal representatives who bring immigration cases before the courts. Mr. Murphy noted how “Such a provision already exists in the rules of court. Its inclusion here is unnecessary and unjustified. It seems designed to discourage vulnerable people from fully exercising their right to the protection of the law.” Noeline Blackwell, Director of the Free Legal Advice Centres (FLAC), has criticised the emphasis on speed within the Bill and has stated that “[w]hile the Minister quite naturally wants to set up a fast, efficient immigration system, our concern is that a fair balance must be maintained between efficiency and rights”. FLAC further expressed concern for the restriction of access to the Courts and have highlighted the danger that “lawyers will be discouraged by the sheer weight of obstacles that impede access to the courts for immigrants.”

This post was submitted by PhD candidate, Liam Thornton.