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									    D ealing with illegal long-term migrants: a new approach 1
                          long-     migrants:
    Patrick Weil2

    Whatever the rules regulating the legal admission of refugees and foreign residents, however
    efficient the enforcement of the law, however tough the penalties against employers and
    traffickers, some migrants will inevitably enter illegally and remain in EU territory without the
    requisite documentation. This is the case as a result of two main factors:

         1. The European social and democratic models and the opportunities provided by its
            market economy attract more candidates seeking permanent residence than the
            numbers Europe’s member states care to admit.
         2. Because the EU respects basic individual human rights (freedom of expatriation,
            family life, asylum), and because European countries are willing destinations for
            tourism and international business, there are some clear constraints, as well as legal
            limits, as to the means the state can legitimately employ to “control” migration.

    One therefore has to admit that immigration policy is like any other policy—it is susceptible
    to a certain level of “fraud”. No one would imagine tax legislation, or traffic codes, that would
    totally eliminate tax fraud or traffic accidents. Therefore, even if strong law enforcement and
    fair and rapid treatment of applicants for asylum, family reunification or job permits can
    reduce illegal migration, no measure can completely eradicate it. The question remains, then,
    what do states normally do with the foreigners who have settled in their countries,
    sometimes for many years, either because they have found a job, or because they have joined
    a family, created one, or both?

    After mass protests, as the political, economic and social costs of hosting these irregular
    populations become too high, states are forced to organise exceptional and large-scale
    legalisation programmes—or mass amnesties. The most recent examples in Europe are Italy
    (in 2003, 800,000 applicants) and Spain (in 2005, 500,000 applicants).

  This paper was prepared for the seminar Migration and European labour market transformations in Paris on July 3 2008,
organised by Policy Network with the support of the Barrow Cadbury Trust and the assistance of the German Marshall Fund of
the United States. Please do not quote this paper without permission from the author.
  Patrick Weil is senior fellow at the University of Paris1 (CNRS) and at the GMFUS. Based in Paris he has studied and published on
Comparative Immigration, Citizenship and Integration Policies. In 1997, he was appointed by the French Government to write a
report on immigration and nationality policies reform. This report served as the basis for the immigration and nationality laws
passed at the French Parliament in 1998. Recent publications can be find on his website:
    The political, social and administrative impact of these mass legalisation processes is often
    harmful. They often encourage the sudden arrival of large numbers of new migrants from
    neighbouring or sending countries; the civil service is often disorganised and little able to
    cope; and, last but not least, governments and parliaments end up appearing incompetent
    managers of immigration policies—too often, mass legalisations open the way for
    xenophobic and populist reactions.

    France has also been through numerous exceptional and large-scale amnesties: in 1972, 1981,
    1991 and 1997. Yet since 1998 a system of permanent (vs exceptional) and individual (vs
    collective) legalisation of illegal aliens has been implemented. Since the passage of the 11
    May, 1998 law, the following five categories of foreigners, residing illegally in France but who
    have created strong links in the country or have strong reasons to stay, can apply for a
    residence permit from the French immigration service:

         1. Foreigners who can prove they have been living 10 years in the country;
         2. Foreign parents of children with French citizenship;
         3. Young adults aged 18 years who have arrived in France before the age of 10;
         4. Persons who feel that their rights have been violated under article 8 of the ECHR,
            which provides the right to respect for one’s private and family life;3
         5. Persons suffering from an illness who can prove that their deportation would prevent
            them from obtaining the medical treatment necessary to save their life.

    In 2006, a new law, passed in a more restrictive context, maintained these provisions with one
    exception: foreigners who can prove they have been living in the country for 10 years can still
    apply for legal status, but the decision to legalise them is now subject to the discretionary
    power of the government. However, two new categories of persons have been given the right
    to apply for legalisation of their status under the same discretionary system: persons who find
    themselves in precarious humanitarian situations, who qualify for legalisation within any
    delay (article 32 of the law 2006-911of 24 July 2006) and persons who are working illegally
    (article 12.3 of the law 2007-1631 of 20 November 2007). Every year, approximately 25,000 to
    30,000 of the residence permits issued in France are legalisation permits.

    In the UK there are two very similar policy measures to those which exist in France. One allows
    for regularisation after 14 years of illegal residence, and the other, for families with children,
    allows regularisation after only seven years.

    In Germany, section 25 of the new law of 31 July 2004 allows residence permits to be granted
    for “humanitarian reasons”. This measure is meant to apply to all those persons who feel that
    their rights have been violated under one of the articles of the European Convention for the
    Protection of Human Rights. The law adds to and completes a measure already in place in
    German law (section 60), which allows around 200,000 people to live with a “Duldung”
    certificate of residence,4 a measure brought in because the German state could not
    reasonably hope to expel all persons living in an irregular situation.

  Expulsion or deportation of an illegal alien can be a violation of Article 8 of the European Convention for the Protection of
Human Rights if it separates an existing family or partners.
  In the new law, the Duldung has become the “Bescheinigung über die vorübergehende Aussetzung der Abschiebung"
(Certificate of temporary suspension of expulsion).
Why has this system been adopted?
  1. By legalising the aliens who have shown the highest will to integrate into our societies,
      it allows an escape from the cycle of mass amnesties with their political and social
      tensions and costs.
  2. This individual process is smoothly managed through cooperation between the civil
      service and NGOs, who play the role of gatekeepers.
  3. It does not, however, prevent the enforcement of the laws; on the contrary, before any
      application for legalisation can be submitted, the system foresees a long period of
      time (except in cases where there are strong family links) during which an alien risks

Finally, the individual regularisation process makes the immigration system as a whole more
transparent and therefore more accountable. Let’s compare immigration law and taxation
laws: if there were no penalty for not paying state taxes, nobody would pay them. But if the
state could investigate one’s income 20 years after it had been earned, this would be akin to
living in a totalitarian regime. It is the same with immigration policy. No penalty for illegal
migration, or weak enforcement of the law, opens more avenues for illegal migration to
occur. But living for 10 years in a country, surviving hardship and police harassment, without
any prospects of receiving an amnesty, can lead to growing resentment among marginalised
populations who may join together in collective solidarity against social injustice and finally
demand the type of collective mass amnesties that have taken place in various countries over
recent years.

Yet should an “immigration pact”, like the one being proposed by president Nicolas Sarkozy,
forbid EU member states from proceeding with large-scale legalisation programmes? This
request is in itself a little hypocritical. When a continental European country organises such a
large-scale legalisation programme, the impact on the neighbouring countries is in fact ...
good. Contrary to popular belief, these programmes actually reduce the number of
undocumented workers by attracting dozens of thousands away from these neighbouring
countries. After obtaining legal documentation, they settle, enter the labour market and very
rarely come back to their previous country of residence. In fact, the need to regularise large
numbers of illegal residents en masse is itself a sign that the legal migration system is broken.

It is, in fact, interesting to note that the countries that have implemented such large-scale
regularisation processes have generally been countries that use quota systems, where a
desired number of immigrants is determined in advance. It is arguable that this pre-
determined figure often functions as an attractive signal to people seeking to emigrate, who
are always more numerous than the quota envisions. Such quotas are therefore always

Only a reform of the policies permitting legal residency, and the setting of a permanent and
ongoing approach to legalisation, will allow EU countries to reduce the need for large-scale
amnesties of irregular migrants.

Paris, July 3 2008

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