Regularisation and the residence threshold

Because of the fact that irregulars become in time social members (as discussed in the third section above) and because of the already mentioned legal and practical difficulties concerning expulsion, two general forms of regularising undocumented migrants have been considered: individual rolling

regularisations, and collective amnesties. Common to both are (a) a focus on the long-term residence threshold as a special requirement for eligibility; and (b) additional conditions difficult to meet, such as proof of successful integration in the society, proof of having accommodation, health insurance,

employment, a sufficient income or a sponsor that takes over the legal responsibility to bear all costs for several years, and no criminal record (Kraler, Reichel et al. 2009).

Regarding such supplementary conditions, I believe they should be dismissed as discriminatory: the legal status of irregulars should not depend on conditions not required of other immigrants, such as ‘successful integration in the society’ or ‘sufficient income’. Moreover, such conditions target only specific categories of individuals like workers (i.e. people who have a job offer), but not inactive or unemployed family members. In any event, in the former case some employers refuse to officially offer their workers a job because they want to avoid paying social security contributions, so not all workers can be legalised.

But what about the criminal record? If someone arrives and acquires a criminal record within a short time, is that a sufficient justification to deport him?35

We are thus left with the former requirement. Building the argument on two premises (that illegal immigration cannot be acceptable and that long-term residence matters morally), the threshold solution holds that if the irregular qualifies, then she is automatically granted residence. If she does not qualify, then the appropriate state action is deportation (Bauböck 2011). In what follows I want to

My view here is that if the criminal record is acquired within a period of time less than one year, then it makes no difference since the state is

anyway allowed to deport irregulars who resided on its territory for less than one year. If the criminal record is acquired after one year (that is, after the person has been regularised, according to my proposal) then the person should be treated as any other criminal resident. This is an important point, because we have to take into account the fact that a criminal record has no conceptual link with immigration status. As I will try to argue later in section 7.3.2. regarding the lack of criminal record as a requirement for a complete citizenship application, criminal law transgression does not have anything in common with citizenship and migration laws: as Orgad put it, ‘[i]f an immigrant violates the law, civic and criminal sanctions exist’ (Orgad 2010: 22). In consequence, if the absence of a criminal record should be dismissed as a condition for citizenship acquisition, then it should be also dismissed as a reason to deport an already legal resident. If all of these considerations are correct, the period of residence should be the only requirement for regularisation.

35 _{I would like to thank Joseph Carens for drawing me attention on this case (personal communication on file with the}

critically analyse this proposal, by showing that (a) it violates existing national and international legal norms; and (b) it is practically inefficient. However, dismissing it altogether has perplexing

consequences. After investigating various options supported by the residence threshold, I argue for the short-term residence alternative.

According to the perspective under scrutiny, irregulars who do not meet the threshold may be removed. However, such an action meets strong legal obstacles: first, a complete removal of all individuals not qualified is not acceptable under international treaties. For example, mass deportations are prohibited by the 1949 Fourth Geneva Convention,36 and deportation of groups who are identified by something other than their unauthorised immigration status (for example, their skin colour) infringe basic human rights. Second, in several cases national laws also forbid deportation. With the exception of the UK and the Netherlands (van der Leun and Ilies 2008), in most European countries the detention period of an unidentified irregular migrant was strictly limited until 2008 usually to a maximum of three months. If the individual was not identified within this period, she had to be released. However, the 2008 Directive 1008/115/ EC of the European Parliament and of the Council established that Members States must set a period of detention ‘which may not exceed six months’ (chapter IV, art. 15, para. 5); and that this period may be extended to a maximum of another twelve months ‘in cases where regardless of all their reasonable efforts the removal operation is likely to last longer’ because the-third country concerned does not cooperate or because delays in obtaining documentation from the third countries (chapter IV, art. 15, para. 6).37 Third, in some states a non-qualification verdict does not automatically lead to deportation: the administrative or court decision regarding deportation may be appealed, and the whole process may take several years, a period in which individuals remain irregular, or at best regulars ‘in limbo’ (Maroukis 2009). This category of persons is also known as ‘non-

removables’ or ‘non-returnables’.38

36 _{Convention relative to the Protection of Civilian Persons in Time of War.Geneva, 12 August 1949, art. 49, source:}

Their situation is of course not acceptable under a residence-based

http://www.icrc.org/ihl.nsf/385ec082b509e76c41256739003e636d/6756482d86146898c125641e004aa3c5 (accessed 13 January 2011).

37 _{‘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’(also known as the ‘Return directive’), available at http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2008:348:0098:0107:EN:PDF (last accessed 16 November 2013).

38 _{There is an increased interest lately about the so called ‘non-returnables’ or ‘non-removables’ – that is, individuals who}

are undocumented but for various reasons cannot be sent back to their home states. See for example the study released by Ramboll and EurAsylum for the European Commission in 2013, Home/2010/RFXX/PR/1001, called ‘Study on the situation of third-country nationals pending return/removal in the EU Member States and the Schengen Associated Countries’ – available at http://ec.europa.eu/dgs/home-affairs/e-library/documents/policies/immigration/return-

readmission/docs/11032013_sudy_report_on_immigration_return-removal_en.pdf (last accessed 16 November 2013). There are current plans for reforming the ‘Return directive’(see the previous note) to create avenues for the regularisation (and re- entry to the ‘normal’ system) of the so-called ‘non-removables’ after a specific number of years that they are left in limbo. I

theory, and if migrants cannot be sent back in the first year since arrival they must receive a legal status. Even if after a number of years there is a final court decision against one’s migrant intention to live in the territory, as Carens puts it time matters morally, and after a specific period of time

deportation should not be considered an acceptable solution.

But even when an irregular is identified and the expulsion decision is definitive, deportation is not a viable solution. Indeed, it is practically inefficient: sometimes the origin country refuses to cooperate, and moreover as we have already seen the cost of expulsion is generally too high. For example in France, in 2004, ‘out of 64,221 pronounced’ deportation orders, ‘12,729 were effectively executed and more than 50,000 people remained on the French territory irregularly. This number has been a yearly average since 2004’ (Courau 2009: 46). One exception may be the United States, which easily deports hundreds of thousands of irregular immigrants39

Since deportation and the time threshold do not even come close to solving the problem of illegal status (indeed, they cannot even diminish the phenomenon on the long term), it seems that both of them must be discarded as major policies meant to deal with illegal migration. The perplexing consequence is that, taking into consideration all the relevant conclusions of the Clandestino project, the only feasible solution seems to be a variation of the ‘hard on the outside, soft on the inside’ perspective (Bosniak 2006), according to which tough immigration control applies at the border, but

because most of them come from neighbouring Mexico; and we also have to take into account the people who leave on their own precisely because they are threatened with deportation. However in spite of these exceptions the number of irregulars does not seem to decrease. Overall, such experiences reveal that, by itself, expulsion cannot significantly decrease the number of irregular migrants.

In consequence, the most important problem with the long-term residence threshold is that it leaves many irregulars out even in the case of collective amnesties, which significantly reduce the number of irregular migrants (see table 2 in the Annex). Moreover since deportation, as we have already seen, is neither a legal nor a feasible policy for all those that cannot be regularised, large numbers will continue to remain irregular. This may not be morally unacceptable in the case of newly arrived migrants. But for long-term irregular migrants who become social members such a status cannot be accepted.

would like to thank Anna Triandafyllidou for drawing me attention on this study (personal communication on file with the author, November 2013).

39 _{For example 396,906 individuals were deported in 2011, according to the U.S. Immigration and Customs Enforcement}

(ICE). Source: U.S. Immigration and Customs Enforcement’ website:

once inside individuals enjoy almost all citizens’ rights. More concretely, the alternative looks like a

collective40 rolling amnesty regardless of the length of stay, coupled with an increased immigration

control.41

On the one hand, it is very important to be aware that the number of irregular migrants in the European Union has sharply declined in the recent past (Drbohlav and Medová 2009).

A couple of factors support this unexpected solution.

42

A number of important factors have contributed to this reality. First, the two waves of European Union enlargement (2004 and 2007) and the ‘visa waiver’ program for countries like Serbia, Macedonia, Bosnia, and Albania have been important ‘pathways into legality’ for many eastern and south-eastern European irregular immigrants. Second, immigration laws (including those regulating legal labour migration, family reunification and asylum procedure) have been tightened, and readmission agreements with origin and transit countries have been signed. Finally, the technological advance and the creation of Frontex, the European agency tasked to increase European border security, made border control more successful than ever before – a phenomenon called now ‘Fortress Europe’. In general, we could

confidently say that illegal migration has been reduced by transforming former irregulars into European citizens, by setting other nationals on the path of becoming European citizens, and by further tightening immigration laws and border control.43

On the other hand, while collective amnesties implemented by different European states may have been quite problematic, in some countries these amnesties are the direct cause of ‘the decrease of irregular migration over the years.’ (Maroukis 2009). Table 2 in the Annex reveals some interesting figures: for example, over 1.1 million irregular migrants have been regularised in Spain over five collective amnesties in the last 25 years (González-Enríquez 2009: 11). Consequently, in 2008 the

40

A ‘collective’ rolling amnesty here means a rolling amnesty which would legalise continuously all irregulars irrespective of their individual circumstances like long or short-time presence on the territory, etc.

41 _{The Clandestino project revealed that contrary to what one might have expected, more than half of irregular migrants in}

Europe did not illegally cross the border, but overstayed their visas. In consequence, by ‘an increased immigration control’ I understand not only an amplified border control, but also a tougher visa system. Of course, I am not directly supporting for the time being an increased immigration control and a tougher visa system: there are obvious important moral objections to them. At this point I just want to explore all directions that must be taken into account when discussing the phenomenon of illegal immigration.

42 _{It is important to note that this does not imply that the trend cannot be reversed in the years to follow. This claim was}

made by sociological studies at the time they were published (like that of Drbohlav and Medová published in 2009). But we have to take into account that the 2008 crisis ‘has led to de-regularisation of many immigrants in the crisis ridden countries. Asylum systems are under pressure and many potential asylum seekers prefer to remain undocumented migrants instead of registering as asylum seekers’ (Anna Triandafyllidou, personal communication on file with the author, November 2013). So whether reducing illegal migration will continue to be a trend in European Union or not remains to be proven in the years to come.

43 _{I am not assuming that all these restrictive measures like tightening immigration laws and borders are morally defensible.}

For example, some theorists like Joseph Carens (1987) convincingly support a case for open borders. Even though I am sympathetic to his view, just like him I am bracketing for the moment this problem and I am developing my argument from the presupposition that borders and especially border and immigration controls are legitimate.

estimated number of irregulars was only 349,000. This compares favourably to the UK, which has no collective amnesty (if we set aside three very small and specifically focused regularisation programs) and where the estimated number of irregulars has been as high as one million (Vollmer 2009).

If we accept that, on the one hand, tougher immigration laws and border controls are increasingly successful in keeping irregulars out and that, on the other hand, regularisations are the only successful means to ‘legalise’ large numbers of undocumented individuals, then the ‘hard on the outside, soft on the inside’ perspective seems to support, along with tougher immigration control, a specific interpretation of the ‘touch the territory and you’re in’ view (Bosniak 2007a). That is, a collective amnesty that would regularise all irregular migrants regardless of the length of their stay in the host country. What is more, the amnesty must be a rolling program if the phenomenon of illegal status is to be eradicated. It seems then that a collective rolling amnesty coupled with stronger

immigration control may solve the problem of illegal status while at the same time avoiding the two big problems the residence threshold faced: illegality and practical inefficiency.

However, as we have already seen in section 3 above, the strongest argument for regularisation of undocumented migrants is the fact that they become in time social members of the host polity. Indeed, they start to hold a stake in it. In spite of its shortcomings, the residence threshold was a strong supporter of long-term irregular residents’ regularisation. I have explained that this proposal may be dismissed because of consequences it has on those who do not qualify – that is, on short-term irregular residents. But the ‘touch the territory and you’re in’ view, by superseding the residence threshold requirement, also destroys the strongest argument for regularisation; namely, the fact that in time irregulars become social members. No or not enough time spent in the host country implies no membership claim for irregular migrants; they hold no stake in the receiving polity.

This self-defeating proposal shows that the residence threshold cannot be dismissed altogether.44

44 _{Of course, it can be easily dismissed by those who support an open borders regime (see the previous note).}

In fact, there is a whole range of alternatives it can offer, as shown in the figure below. All we can do is to pick the best alternative solution – or, as may be the case, the lesser evil.

time

‘touch the territory the ‘short-time the ‘long-time The ‘irregulars and you’re in’ view threshold’ view threshold’ view forever’ view

Figure 1. Different views of an appropriate residence threshold for regularisation

In the above figure the horizontal arrow represents time and the vertical arrows represent various residence threshold alternatives. One extreme position is ‘touch the territory and you’re in’ view which, as we have seen, can eradicate the illegal status only at the expense of dismissing the best argument for regularisation in the first place. The ‘ethical territoriality’ view on migrants’ rights (discussed in section 2 above) directly supports such a proposal (Bosniak 2007a). But this idea is also implemented in some countries’ national laws: in Spain, for example, an irregular migrant who registers herself with local authorities can access public education and the health care system (González-Enríquez 2009)

irrespective of her length of residence. And the recent (and generous) Immigration Act unanimously approved by the Mexican Senate on 24 February 2011 not only decriminalises irregular migrants, but also offers the option of presenting in person without penalty at the immigration office in order to regularise their status. Authorities promise an answer within 24 hours, and if it is positive then we observe an instance of a ‘touch the territory and you’re in’ policy.45

The other extreme position is the ‘irregulars for ever’ view. One version claims that there should be no prospect for irregular immigrants to regularise, and that they must be deported as soon as the authorities discover them (Swain 2009). This position indirectly accepts an ongoing illegality since it cannot extinguish this status. Another account of the same view directly supports continuous illegal status by claiming that, if there is a trade-off between tolerating irregulars coupled with no prospect for

This liberal position can be implemented since it does not depend on the residence argument: indeed, it can be based on other grounds like humanitarian concern or commitment to increased freedom of movement. Few governments, however, would be inclined to embrace such a policy.

45 _{‘Con la nueva ley, ningún illegal sera considerado delincuente’ [According to the new law, no illegal will be considered}

criminal], Informador.com.mx, 25 February 2011, available at http://www.informador.com.mx/mexico/2011/273557/6/con- nueva-ley-ningun-ilegal-sera-considerado-delincuente.htm (accessed 5 August 2011). The text of the new law (in Spanish) can be found at http://www.diputados.gob.mx/LeyesBiblio/pdf/LMigra.pdf (accessed 5 August 2011). I am indebted to Luicy Pedroza for drawing me attention on this law and for providing these sources.

regularisation and not tolerating irregulars coupled with tougher border control and deportation, then the first alternative is better since it is both supported by irregulars themselves and justified by a normative argument requiring the reduction of world’s poverty through relocating people instead of money (Bell 2005). However such extreme views and their consequences (mass deportations, the creation of a class of permanent partial citizens, etc.) cannot be accepted in a liberal democracy.

Between these two extremes, various positions can be found according to the length of the period the migrant is required to live in illegality or, at best, in limbo. In France, for example, until 2006 a difficult requirement obtained, according to which automatic regularisation of irregular migrants occurred only following10 years of residence. However, in 2006 the Sarkozy Government passed a new law on immigration which eliminated automatic regularisation altogether, irrespective of the length of stay, thus making irregulars’ condition even worse (Courau 2009). In the same vein, in the UK an indefinite leave to remain is not automatic, but may be granted on discretion by the Home Secretary after 14 years of (legal or illegal) residence (Vollmer 2009 : 17). Such perspective is better than the illiberal extreme since it does not create permanent second-class citizens, but it still allows for mass deportations and it keeps large numbers of immigrants in a position in which they cannot make use of their formal rights for an unreasonable period of time.