An EU Regularization Directive. An effective solution to the enforcement deficit in returning irregularly staying migrants

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.

Making asylum work? Civic stratification and labor‐related regularization among rejected asylum seekers in Germany

“…While laborization policies thus hold a certain promise, there are also limitations and concerns. First, access to these niche‐openings is restricted and requires the mobilization of resources that are not easily available to “tolerated” rejected asylum seekers (Bauer & Schreyer, 2019; Hinterberger, 2019; Schultz, 2020). Second, there is the risk that laborization policies could demote migrants who are not perceived as economically beneficial and culturally “integratable,” thus diminishing their regularization opportunities.…”

“…Because of its temporariness and precariousness, the Duldung is comparable with some of the temporary humanitarian legal statuses in the United States, such as Temporary Protected Status and Deferred Action for Childhood Arrivals, that are “short of residency and citizenship” (Abrego & Lakhani, 2015, p. 268), with the difference being that the Duldung is not an actual legal status (Castañeda, 2010). However, people with a Duldung have several options to gain a residence permit (European Migration Network [EMN]/Federal Office for Migration and Refugees [BAMF], 2016; Hinterberger, 2019).…”

“…While there are various regularization opportunities in Germany (e.g., for family or humanitarian reasons: see Hinterberger, 2019; Kraler, 2019), this article focuses on economic regularization options targeting “tolerated” rejected asylum seekers who gain legal status on a case‐by‐case basis on the grounds of their “integration achievements” ( Integrationsleistungen ) (publication of the State Parliament no. 16/7435 2019).…”

Policy Dilemmas of Migration Control: Liberal Democracies and Migrants with Precarious Legal Status

“…in Malta, "the presence of non-deportable refugees is known by the immigration authority, although there is neither suspension of deportation, nor legal right to stay", which results in complete legal limbo for the persons thus stranded on the island (Nimführ and Sesay 2019, 2). 15 Hinterberger (2019) argues for the introduction of an EU Directive on regularizations, as this would solve the current inefficacies of the obligation for member states to enforce returns. that the person in question is not entitled to a legal right to remain.…”