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EU: Council considers action on "non-removable" irregular migrants

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11 May 2020

The Croatian Presidency of the Council has raised the prospect of EU measures to deal with "non-removable" irregular migrants - people who for a variety of reasons "end up in a situation of prolonged illegal stay, which can last for a number of years."

In a paper discussed last week at a meeting of the Council's Working Party on Integration, Migration and Expulsion, the Presidency asks four questions:

1. How is the issue of third-country nationals in a situation of prolonged illegal stay addressed nationally?
2. What measures are taken to promote the return of such third-country nationals and are they proving effective? What other measures could be taken to promote return?
3. Could the granting of any rights in addition to the basic minimum safeguards as provided for in Article 14 of the Return Directive to this category of persons be regarded as a pull factor? If so, what alternative solutions might there be, and can you share any best practices in this regard?
4. Do you consider that harmonisation of measures or a coordinated EU approach to measures as regards third-country nationals in a situation of prolonged illegal stay could help to deal with this challenge?

The paper says that "return of illegally staying third-country nationals is becoming increasingly important," because of an ongoing high number of refused asylum applications and a low EU "return rate", which "has not exceed [sic] 40% in the last few years".

While there is no common EU legal definition of this group, they could be considered as:

"a category of third-country nationals who have been issued with a return decision which has become enforceable, but certain circumstances (e.g. compliance with the principle of non-refoulement, inability to establish identity and country of origin/previous residence, health issues, lack of cooperation from the third country) prevent their return."

Little research has been done on the topic since a 2013 Commission study, says the note, although the European Migration Network is currently looking into the issue. [1] The Presidency estimates there "are up to 300 000 migrants per annum who do not return following a return decision," and their presence:

"may have consequences such as homelessness, labour exploitation, petty crime, and health and social issues, creating difficulties for both the migrants and the authorities. This situation may place migrants in a vulnerable situation, which could make them more likely to become victims of human trafficking, or to represent a risk to public order and security or national security."

The Presidency cites a recent Commission report that identifies this as a possible area for action, as a lack of common rules may incentivise 'secondary movements' for better living conditions, creating "a negative perception of migration amongst the public."

The Commission report suggests that common EU rules giving "at least certain categories of 'non-removables' a right to work might contribute to alleviate this phenomenon." [2]

The Presidency paper also notes the Commission found that "even if the return decision had not been executed for a number of years, in most Member States this had no effect on the person's status as an irregular migrant," which would suggest national authorities are not using the possibilities afforded by existing EU legislation to alleviate individual situations.

Under the EU's 2008 'Returns Directive', national authorities may grant temporary permission to stay to "non-removable" migrants. They should be "issued with a written confirmation of their postponed obligation to return" and given "some basic safeguards, such as an access to emergency healthcare."

A proposal to rewrite that Directive does not change these provisions "significantly", says the Presidency's note - "therefore no proposal has been made to further regulate the status of migrants in a situation of prolonged illegal stay at the EU level."

The Presidency makes no concrete proposals for what might be done, but suggests that “basic minimum safeguards” could become a “pull factor”, and underlines the importance of "avoiding false expectations and constantly encouraging their return to countries of origin”.

See: Presidency paper on addressing challenges relating to migrants in a situation of prolonged illegal stay (Council document 7560/20, LIMITE, 27 April 2020, pdf)

Notes

[1] European Migration Network (link); European Commission, 'Study on the situation of third-country nationals pending return/removal in the EU Member States and the Schengen Associated Countries', 11 March 2013 (link to pdf)
[2] Evaluation of legal migration rules finds them mostly "fit for purpose" but highlights "critical issues" for the future, Statewatch News, 1 April 2019