Comparative Approaches to Tackling Illegal Migration and Undeclared Work Dušan DRBOHLAV firstname.lastname@example.org Charles University in Prague, Faculty of Science, Department of Social Geography and Regional Development This presentation fits the following projects: ► Eurocores—ECRP, Project of the Czech Science Foundation GA CR, No. CPR/06/E001 ► IDEA - Mediterranean and Eastern European Countries as new immigration destinations in the European Union - 6th Framework Programme, No. 44446 ► Investigative plan of MSM 0021620831 financed by the Ministry of Education, Youth and Physical Education of CR. Structure • Introduction • Mesuring, statistics, definitions, concepts • Main forms of illegal immigration • The European reality • Driving forces • Risks and impacts • Policies • Regularisations • Policy recommendations Background studies used - selection • Proposal for a DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL providing for sanctions against employers of third-country nationals who are illegally staying or working in breach of their residence status, Brussels, draft, March 2007. • CLANDESTINO project, Funded by the European Commission, DG Research, Sixth Framework Programme, Thematic Priority 8.1, Policy-related Research. Scientific Support to Policies, coordinator – ELIAMEP, Greece. • REGINE, Regularisations in Europe, Study on practices in the area of regularisation of illegally staying third-country nationals in the Member States of the EU (Ref. JLS/B4/2007/05) done by researchers from the International Centre for Migration Policy Development – ICMPD, Austria. • Drbohlav, D. (ed.): Nelegální ekonomické aktivity migrantů (Česko v evropském kontextu). Praha, Karolinum 2008. • … (PROMINSTAT, EC project) Basic thesis I • Informality is ‗‗alive, well and growing in the post- industrial West‘‘ (Waldinger and Lapp, 1993, p. 6). • … a necessary feature of economic development under contemporary capitalism, ‗‗a major structural feature of our society‘‘ (Castells and Portes, 1989) Basic thesis II • Illegal immigration subverts a society's legal order and undermines or perverts a variety of foreign and domestic policy priorities… … it is something we have to combat! Restrictions - „against the wind“ • Globalization, transnationalism … • Expanding human rights regimes • Liberalization of markets • Decentralization of migratory power/responsibilities • Demand on the side of developed countries etc. Policies and their failure • Western democracies - their common failure to manage migration effectively and efficiently, as demonstrated by the widening gap between the migration-policy goals they set themselves and the actual results achieved. • Although expenditure on immigration-control mechanisms increased sharply in the 1990s, the intended policy goals were not achieved. • Paradox - the 25 richest countries are probably spending US$ 25-30 billion a year on immigration enforcement and asylum processing … (Martin 2003) Measuring illegal/irregular phenomena • …―it follows that any description of the nature and extent of the phenomenon has to rely on certain indirect methods, which in turn depend on the availability of alternative statistical indicators in a given country‘ Jandl (2004). Measuring illegal/irregular phenomena (flows) • To estimate the extent of annual inflows of illegally resident third- country nationals, Member States use a range of indicators linked to the phenomenon: - the numbers of refused entries and removals, - apprehensions of illegal migrants at the border or in the country, - rejected applications for asylum or other forms of international protection, - applications for national regularisation procedures. … To these numbers must be added the considerable number of those who do not apply for any form of international protection (either because they entered legally or they ―overstay‖) Measuring illegal/irregular phenomena (stocks) • To infer the size of the irregular population, indirect methods are often used such as comparing different population censuses and registers, including data on births and deaths… – (The US and several South American countries either produce or otherwise do not deny illegal population estimates by reputable analysts. Furthermore, in the US case, national censuses are thought to capture between half and three quarters of that population). Measuring „illegal/irregular phenomena“ • “residual” estimation technique - comparing the census data with other registries of immigrants and identifying any differences (USA, Spain … the UK). • the “multiplier” estimation technique as producing better estimates of undocumented migrants (Jandl 2004) (based on the assumption that there is a stable relation between the unknown variable, which is the subject of enquiry, and a variable that can be measured). • In relation to the stock of third-country nationals with no or limited rights to work that are exceeded, demographic methods, such as comparing age structures, birth and death rates of illegal residents with those of legally resident foreigners have been used in migration studies. Measuring “illegal/irregular phenomena” (cont.) • to survey experts on the subject and using their estimations to come up with an appropriate multiplier • ―evidence based on regularisation data‖ can also be used for estimations of immigrant stocks in the country and, to some extent, the extent to which they are working in various sectors • Various surveys • Estimates of the extent of irregular foreign employment often draw upon the figures of the national Labour Inspectorates, which undertake checks at work sites and other types of enforcement activities. …these routine control checks do not constitute a random sample of all workplaces (Jandl 2004) … … extrapolations Visa / entries Statistics on refusals Political asylum Residence, work permits Administrative Entry / border statistics Infractions Stay Work or job Direct Regularisations Mass measures Exceptional Without sample Delphi “method“ Surveys “Snowball“ technique At the time of regularis. With sample On employment On mobility/border flows Biographical Comparison of Expected populations sources Pairing of files Sex-ratio Common law crimes Indirect Inferences from estimates secondary events Births and deaths School attendance statistics Social/health benefits Work statistics National data Source: Delaunay, Tapinos 1998 according to Tapinos 1999 Data problems • Data on irregular migration – including both numbers and also demographic and socio-economic profiles - are scarce, often unreliable and not usually comparable between states and over time. The types of conceptual problems covered in the preceding subsection are one reason why. Different States, for example, define irregular migrants in different ways, and migrants can shift overnight between regular and irregular statuses. • There is also a series of more practical problems. Some irregular migrants can be recorded – such as asylum seekers whose applications are rejected, or those apprehended at borders without proper documentation. Most estimates of irregular migration simply present data recorded from sources like these. The problem is that recorded irregular migration represents only a proportion of the totality of irregular migration – and estimates of what that proportion is are largely guesswork and vary widely. Most sources agree that the majority of irregular migrants are not recorded (Clarke et al. 2003), and this is probably unsurprising given the desire of many of these migrants not to be identified by the authorities for fear of prosecution or deportation. • Another problem is access to data – however limited it may be - that has been collected. In many states such data are collected by enforcement agencies and are not made publicly available. Alternatively, information and data that may establish a person‘s irregular status are frequently dispersed between different agencies such as government departments, the police and employment offices, making cooperation and access to data difficult (Koser 2005, Pinkerton et al. 2004). Data problems • International cooperation on data collection is even more problematic. • There is no authoritative source on global trends and numbers in irregular migration, and the available sources are not comprehensive: – The Organisation for Economic Cooperation and Development (OECD), through its SOPEMI initiative, for example, collates data from various industrialised nations, which usually include estimates on irregular migration - although this is not the focus. Similarly, the UN Statistics Division collects data on global trends that include estimates on irregular migration. And IOM regularly publishes data on human trafficking, which comprises only a proportion of all irregular migration (Koser 2005). Terms/Definitions • Irregular, in irregular position, illegal, undocumented, unauthorised, clandestine, etc... – used in various ways, in various contexts, overlapping … Terms/Definitions • Trafficking of human beings is defined as: ―the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat, or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation‖. • The smuggling of migrants is defined as: ―The procurement, in order to obtain, directly or indirectly a financial or other material benefit, of the illegal entry of a person into a state Party of which the person is not a national or a permanent resident‖ (Sources: UN Protocol to Prevent, Suppress and Punish Trafficking in Persons (2000); UN Protocol against the Smuggling of Migrants by Land, Sea and Air (2000)) – A conceptual complexity arises because migrants‘ status can change … Terms/Definitions – informal economy • what is to be understood as undeclared work - the definition is: ―productive activities that are lawful as regards to their nature, but are not declared to the public authorities, taking into account the differences in the regulatory system between Member States” (Renooy 2004). Main forms of illegal immigration • Undocumented/unauthorized entrants. These are nationals of one state who enter another state clandestinely. Most such entrants cross land borders, but sea routes are also employed regularly, and wherever inspection regimes are permeable, so are air routes. In all instances, the entrant manages to avoid detection and hence, inspection. Increasing proportions of such clandestine immigrants are smuggled or trafficked. • Individuals who are inspected upon entry into another state, but gain admission by using fraudulent documents. The fraud in question may involve the person's identity and/or the documentation in support of admission. A variant of this class of entries involves the making of fraudulent asylum claims where issues of identity, documentation, and the narrative in support of the asylum claim may be falsified. • Violators of the duration of a visa. These include individuals who enter another state properly but "willfully" overstay their period of legal stay, thus lapsing into irregular status. • Violators of the terms and conditions of a visa. Nationals of one state who enter another state with the proper documents and procedures, but at some point violate the terms of their visa. The most frequent such violation is the acceptance of employment (by Papademetriou 2005) - Many foreigners also find themselves in temporary technical violation of the host nation's immigration laws in what are otherwise legal entries and essentially legal stays. For instance, a business visitor may engage in a business activity that requires a different visa classification. Main forms of illegal immigration • ―Illegally staying third-country nationals‖ who are in the EU and who are either: • staying illegally in the EU. These include those who entered the EU illegally and ‗overstayers‘ who entered the EU legally, but whose rights to stay have expired; or • staying legally in the Member State but who have no or limited rights to work, and the limited rights are being exceeded. These include students, researchers, tourists and legally present family members of third- country nationals who do not have the right to work or only have the right to work a specified number of hours per week (Proposal 2007). Main forms of illegal immigration • Illegal economic activities carried out by migrants are understood to be situations wherein a migrant does not have the appropriate residence permit and work/business permit, or has a valid residence permit (e.g., tourist visa) but is working illegally (does not have a work permit or a trade licence). • Quasi-legal economic activities carried out by migrants are understood to be situations wherein a migrant has a valid residence permit and a work permit/trade licence, but breaches laws (Labour Act, Trade Licensing Act, etc.) in a severe manner, e.g., works in a different region, branch, profession or for a different employer than permitted; smuggles goods; participates in disguised employment (“Švarc system”), etc. • - Studies done in Drbohlav (ed.) 2008 ENTRIES ENTRY LEGAL ILLEGAL (false papers, (administratively) clandestine passage) Legal Illegal Illegal Legal RESIDENCE (permit) (invalid or no permit) (no permit) (regularisation, marriage) Legal and Illegal (no Inactive Illegal Illegal Inactive Illegal (no Legal and EMPLOYMENT inactive permit, pop. (undeclared) (undeclared) population permit, inactive pop. undeclared) undeclared) pop. Source: Tapinos 1999 (modified) Presentation of the various situations in which foreign migrants can find themselves • Proposal for a DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL providing for sanctions against employers of third-country nationals who are illegally staying or working in breach of their residence status Brussels, draft, version 30.3.2007 11h SEC(2007) XXXX For the employed illegally staying TCN: - Underpaid For companies e.g.: For Member State For EU: For third country:: (nat / reg / local - Risk of exploitation (1) Company - Impacts on national - Remittances from levels): employing: aggregate GDP employed illegally - No social security lower wages - Impacts on GDP staying TCNs to - etc. For nationals: countries of origin, (2) Other - etc. - Downward companies: - etc, Impacts pressure on wages distortion of and conditions competition - Xenophobia Illegal employment Illegal employment Human trafficking victim (a pull factor for illegal immigration) Overstayer Illegal immigration (also driven by other Enter legally with Enter on their own Smuggled by facilitator Human trafficking pull factors and by valid visa/ study visa, push factors) seasonal work permit etc. Reality • So-called irregular migrants make up 30–50 percent of all migration to Western industrialized countries ... • The IOM surmises that approximately 4 million people are smuggled across borders every year. • In the United States alone, there may be as many as 12 million illegal migrants, with approximately 4,000 illegal border crossings every day. • Half of all illegal migrants have some interaction with smuggling or trafficking networks—a global industry that generates approximately $10 billion per year (Adamson 2006). Reality • Illegal/irregular migration has been by far the fastest rising single form of migration during the past 10 years. • A rough estimate about the share of unauthorized immigrants in the world's immigrant stock might put it at between 15 and 20 percent of the total (between 30 and 40 million immigrants). Among these, the US has the largest absolute number of irregular immigrants with between 10 and 11 million, about 30 percent of its total foreign born population, probably followed by South Africa, where estimates vary wildly but all are in the several millions. • Continental Europe also has a large number of unauthorized immigrants, with the southern parts of the European Union accounting for the largest absolute numbers. Altogether, Europe probably "hosts" between seven and eight million irregular immigrants, although that number fluctuates in accordance with regularisation programs, such as the recent one in Spain. These fluctuations tend to be cyclical because large proportions of those who regularize typically fall back into illegal status when they cannot meet the conditions for legal status. • Mexico, the world's most proficient source of unauthorized (and legal) immigrants, also hosts about a million irregular immigrants of its own, many of them American retirees who have settled in Mexico without official permission. • Canada uses a "working guesstimate" of about half-a-million unauthorized immigrants (Papademetriou 2005). Reality – stocks (Proposal 2007) • Most estimates that have so far been available relate to the period prior to 2004 and the accession of the EU-10 and include nationals from these countries and Bulgaria and Romania as third country nationals. This makes it difficult to present a clear overview of the situation in the EU and in individual Member States. • Estimates of the total number of illegal migrants in the EU vary; 2,000,000- 3,000,000 (Global Migration Perspectives 2005); 4,500,000 (IOM 2000); and, seven to eight million (United Nations' Trends in Total Migrant Stock: The 2003 Revision) … • Those states with the highest absolute numbers of irregular residents include Germany, France, Italy, Spain, Greece, Poland and the United Kingdom. • Problem – regularisations … Statistics – stocks (Proposal 2007) • Estimates of irregular immigrants in Europe in millions - based on Düvell (2006) – a selection: – Germany: 0.5-1.1 – UK: 0.05-0.5 – France: 1.0 – Italy: 0.57-1.1 – Spain: 0.5-1.0 – Netherlands: 0.11-0.16 – Greece: 0.35-0.7 – Belgium: <0.1 – Portugal: 0.04-0.2 – Sweden: <0.01 – Austria: 0.25 – Norway: 0.01-0.02 – …… Total: 4.14-7.34 Reality – flows • The number of illegal immigrants in the EU was estimated to increase by 500,000 per annum by Wiener Zeitung (2005), and by 350,000 according to Global Migration Perspectives 2005. However, if the available estimates for the individual 21 Member States are aggregated the estimate is considerably higher. This calculation suggests that there is an annual inflow of illegal migrants to the EU of between 893,000 and 923,300 (Proposal 2007) Statistics – flows • According to a new online database on irregular migration established in the framework of a European Commission funded research project on irregular migration there are between 2.8 to 6 million migrants without a right to residence in the European Union and thus many fewer than previously assumed. • The database forms part of the CLANDESTINO project in which ICMPD was involved as a partner institute. A wide range of background information, including country reports on 12 EU Member States and 3 non-EU countries, a report on ethical issues in researching irregular migration and a report on methods to estimate irregular migration are available from the two project related websites. For more information, visit: http://clandestino.eliamep.gr (country reports and research briefs), http://irregular-migration.hwwi.net (database). 2000-2003: Stocks of Irregular Foreign Residents in the EU15 More Estimates of irregular foreign residents information Country Population Year minimum central maximum EU15 2002 310 208 876 - - - Selected countries in descending order of population size 1 000 000 1 500 000 Germany 2003 82 536 680 - table 1.2% 1.8% United 310 000 430 000 570 000 2001 58 999 781 table Kingdom 0.5% 0.7% 1.0% 702 156 Italy 2002 56 993 742 - - table 1.2% 650 551 Spain 2002 40 964 244 - - table 1.6% 77 721 104 990 132 262 Netherlands 2002 16 105 285 table 0.5% 0.7% 0.8% 400 000 Greece 2001 10 931 206 - - table .7% 80 000 100 000 Austria 2002 8 065 146 - table 1.0% 1.2% High quality Medium quality Low quality Low quality with plausibility warning Source: CLANDESTINO project – Database on irregular migration, http://irregular-migration.hwwi.net/ 2004-2006: Stocks of Irregular Foreign Residents in the EU25 More Estimates of irregular foreign residents information Country Population Year minimum central maximum EU25 2005 461 603 958 2 800 000 - 6 000 000 table 500 000 1 000 000 Germany 2004 82 531 671 0.6% - 1.2% table 200 000 400 000 France 2005 62 637 596 0.3% - 0.6% table United 120 000 240 000 380 000 2005 60 059 900 table Kingdom 0.2% 0.4% 0.6% 541 000 Italy 2005 58 462 375 - 1.1% - table 1 379 751 Spain 2005 43 038 035 - - 3.2% table 50 000 300 000 Poland 2004 38 190 608 0.1% - 0.8% table 62 320 88 116 113 912 Netherlands 2005 16 305 526 0.4% 0.5% 0.7% table 230 000 330 000 Greece 2004 11 040 650 2.1% - 3.0% table Czech 100 000 2005 10 220 577 - - table Republic 1.0% 20 000 40 000 Slovakia 2006 5 389 180 0.4% - 0.7% table High quality Medium quality Low quality Low quality with plausibility warning Source: CLANDESTINO project – Database on irregular migration, http://irregular-migration.hwwi.net/ 2007-2008: Stocks of Irregular Foreign Residents in the EU27 More Estimates of irregular foreign residents information Country Year Population minimim central maximum EU27 2007 495 090 294 - - - in preparation Selected countries in descending order of population size 349 000 Italy 2007 59 131 287 - - table 0.6% 280 000 376 000 Spain 2007 44 474 631 - table 0.6% 0.8% 172 000 209 000 Greece 2007 11 171 740 - table 1.5% 1.9% 30 000 50 000 Hungary 2007 10 066 158 - table 0.3% 0.5% 15 000 20 000 Slovakia 2007 5 393 637 - table 0.3% 0.4% High quality Medium quality Low quality Low quality with plausibility warning Source: CLANDESTINO project – Database on irregular migration, http://irregular-migration.hwwi.net/ Irregular work by sectors • Data have been obtained for twelve Member States (BE, DK, FI, FR, EL, HU, IT, LV, NL, PT, ES, UK) on the sectors in which illegal immigrants work: – Construction, agriculture and horticulture, housework / cleaning, catering and other hospitality services are repeatedly identified as the sectors most prone to undocumented work, in general, and that of illegal migrants, in particular. – This reflects in part the nature of the work that is required in these sectors (e.g. seasonal and flexible) and in part the variations in the presence of sectors in Member States. For example, in some Member States the agricultural sector is more important than in others, which may lead to a higher number of illegal immigrants getting such work (Proposal 2007). Irregular work by sectors • In Finland, France, Hungary and Portugal the highest concentrations of illegal migrants in work are found in construction. In Greece and Spain, illegal migrants in work are predominantly found in the housework/cleaning sector, whereas in Denmark, the employment of illegal migrants is particularly high in agriculture. In the Netherlands, catering and other hospitality services are a focus of recruitment of illegal migrants (Proposal 2007). Close relations to informal economies • The sector with the highest incidence of informal work is the construction sector. In Pedersen‘s study, the sector is rivalled only in Germany by agricultural work, including gardening. Next to these two sectors, informal work is found mainly in the hotel and restaurant sector and in personal and domestic services (Renooy 2004). Close relations to informal economies • There are no general, universal causes for the existence and development of an informal economy. • It is brought about by a complex interplay between various variables that varies between countries. • Apart from economic reasons like tax burden or rigidity on (labour) markets, trust in and the quality of government play an important role. Furthermore, one should not ignore the role of culture in shaping an informal economy (Renooy 2004). Important patterns - ways into and out of illegality • Various combinations of illegal and legal entry, residence and employment may arise. At the same time, numerous transitions between legality and illegality are possible. • There are indications in Italy that 75% of irregular migrants have entered the country legally, 15% have come illegally across land borders and 10% across sea borders. Duration of stay • Duration of stay: In the case of irregular migration both limited-term stays and circular patterns of migration are found, as well as people settling for an indeterminate period. • Stricter border controls tend to lead to an extended period of stay because re-entering or moving to and from the country is risky. Trends (Focus Migration 2008) • Trend: there has been a general worldwide assumption since the end of the 1980s that there has been a sharp increase in irregular migration, • Although there are certainly also countries where current estimates indicate a declining trend (Germany…) • At EU level the development has been strongly influenced by twelve new states joining the EU since 2004. Firstly, this has reduced illegal residency, since a large proportion of irregular migration in the EU-15 countries stemmed from accession countries; secondly, it appears that illegal residency has shifted from the old to the new EU states. What is behind it? – Driving forces • A number of push and pull factors, which are by no means only economic in nature; nevertheless, economic motives dominate. • Decisions to migrate are based on push factors such as unemployment or permanently low wage levels and natural disasters or ecological devastation, • and on pull factors such as informal employment with higher wage levels, political stability, maintenance of the rule of law and effective protection of human rights. • Irregular migrants frequently come from nearby countries with a significantly lower level of income, from countries with established historical or current ties with the receiving country, or from countries in which human rights violations or poor economic conditions cause people to emigrate. • Illegal migrants make their decisions despite various deterrents, such as high costs for the services of smugglers and the risk of interception and prosecution by border authorities (Proposal 2007). What is behind it? • The same motives for migrating are found among both irregular and regular immigrants: earning and educational opportunities, love, family connections, a desire to travel, the search for protection from persecution, or fear of returning to a (former) area of war or catastrophe. Of these, the greatest importance is attributed to economic motives. Typically, young adults are overproportionally represented among irregular migrants (Focus Migration 2008). What is behind it? Also, it is the result of inflexible rules and understaffed (and thus overworked) immigration bureaucracies). (More than six million immigration petitions — many of them requests for a change in immigration status — were pending in the US in 2004). What is behind? – There is disagreement on whether the major independent variable is the wage differential, the available benefits for asylum seekers or the activities of smugglers (Martin 2003). What is behind? • The arrival of illegal/irregular workers is often the response to appeals from certain niche areas of economic activity that are involved in what are called ―underground economies‖ (Pallida 2005). Risks/Impacts Illegal migration and migrants‘ irregular activities: accompanied by a number of risks, which are tied to - the migrant, - the migrant‘s ―new‖ environment (destination country), - the environment through which the migrant traveled (transit country) - the environment the migrant left Risks/Impacts The employers, employment agencies, and sometimes even the migrants themselves – involved in irregular work/business - profit from breaking the law. versus Those who do adhere to the law, pay the required taxes and insurance, and act in accordance with the regulations (employers, local citizens, and legal foreign workers) are at a disadvantage. Risks/Impacts (immigration c.) -ECONOMIC risks - frequent discrimination - lower wages, - longer work periods, - unstable employment, - and the overall level of subordination that exists in relation to the employer/employment agent. - deformation of the labor market in destination countries (the quality of working conditions decreases; - non-payment of taxes and other deductions gives companies that employ illegal workers an advantage, etc. - a threat that certain branches will become ―unhealthily‖ dependent on foreign workers - danger that structural changes required for desirable economic development will be delayed... Risks/Impacts (immigration c.) - risks within the SOCIAL SPHERE - enclosed migrant enclaves might be established which might be socially marginalized and offer no perspective for improving living conditions and integration within the majority population. - The existence of such communities can subsequently be linked to anti-state activities, including terrorism. Risks/Impacts (immigration c.) - PSYCHOLOGICAL risks are at play - including breaking existing social ties, - living in a new cultural and social environment, - stress caused by the ―illegal‖ nature of their arrival, residence, or work, fear of being caught, and the possible subsequent penalties. … a state of permanent uncertainty and, often, even danger. - increasing xenophobia and rasism Risks/Impacts (immigration c.) - Possibly other factors that threaten the safety of target countries: - minor crimes, counterfeit documents, organized crime, human smuggling, counterfeit consumer goods, weapons, drugs, nuclear materials, etc. - overall open tolerance of illegal migration also deforms the ethical and moral codes of the receiving society. Risks/Impacts (immigration c.) However, there are some positive impacts: - filling unappealing and low-paid jobs, - a cheap and flexible workforce, - the development of certain economic entities and sectors. - Also, individual households benefit from the presence of illegal/irregular workers (cheaper home services, construction, reconstruction, etc.), prices of some goods and services decrease … Impacts (Proposal 2007) Available information suggests that the employment of illegally resident third-country nationals does not necessarily crowd out locals from jobs. Instead, there are signs that whole industries are already dependent on these illegally resident third-country nationals, as the kind of jobs they take would not be done by nationals at a wage level that would still maintain the international competitiveness of the sector concerned (e.g. horticulture). Impacts (Proposal 2007) • Effects on the product/service market may be positive in purely economic terms. Illegally resident third country nationals can bring substantial economic benefits to their host countries in their capacity as workers. Their low wages bring down the costs of goods and services, making firms and sometimes entire industries more competitive, and often have important ripple (―up-― and ―down-stream‖) economic benefits also for associated firms and industries, in form of lower output prices, or increased purchases. Impacts (Proposal 2007) • With respect to the effects on competition and the single internal market, in countries where the informal economy is less strong, employers of illegal immigrants pose unfair competition to others within certain sectors. In other countries, the custom of making use of undeclared work in general, and also illegal third country nationals, is so wide-spread that all companies within the sectors concerned have adapted to this situation, and employ illegally themselves or cope with unfair competition by other means. Impacts (Proposal 2007) • Illegal immigrants contribute positively economically to both the host economies (by making companies or even sectors more competitive due to low salaries) and the countries of origin (in terms of remittances). However, there are significant costs that offset these benefits, e.g. lack of payment of social security contributions, exploitation of many illegal migrants, and the distortion of the labour market by downward pressure on wages and conditions. Impacts • One of the most significant consequences of illegal immigration may in fact stem from the increasing strength of smuggling and trafficking syndicates. Policies • In general, European migration policy is dominated by a restrictive agenda of repelling, limiting and controlling immigration. – At the beginning of 2002, the cabinet of ministers had adopted a plan of action to control illegal immigration and human trafficking. Above all, it encouraged the development of a joint visa and return policy, improved exchange of information and the coordination of control authorities, the setting up of a European border police, and a tightening of sanctions. Policies • Differences among individual countries: – In Germany, illegal residence is a criminal offence in the eyes of the law; in some other countries, such as the Netherlands, it is not. Policies • The more strictly all citizens are registered and inspected, the easier and less expensive it is to control migration. – The spectrum ranges from the Scandinavian countries, where everyone is accompanied from the cradle to the grave by an identification number that is registered everywhere, through to England, where there is no residential register and only since 2004 has there been a gradual introduction of compulsory identity cards. At the same time, there is less control of economic life in southern European countries than in northern European countries, as a result, for example, of the greater significance of agriculture and small business structures. Policies • The extent to which existing rights can actually be exercised varies sharply from country to country. If schools, doctors and courts check residence and cooperate – or are forced to cooperate – with the authorities responsible for detecting and deporting irregular migrants, these migrants will be deterred from exercising their rights. Germany has the most far-reaching regulations on data forwarding and cooperation with the authorities in charge of migration control. In the Netherlands, access to state services for aliens without status was severely restricted in the 1990s, although schooling, medical treatment and legal protection were expressly excluded. • Irrespective of residence status, inhabitants of Spain can register with the communal authorities and thereby receive access to basic medical treatment. In Greece, Sweden and Italy, too, access to medical treatment in acute emergencies is assured regardless of residence status. Hospitals need only pass on information to police if requested to do so in the course of an investigation. Policies versus Practices • One of the main problems - enforcing employer sanctions!!! Why does it fail? • "law-and-order" measures alone are ineffective throughout the world!!! – they do not change the fundamental reasons for irregular migration • Once migration becomes established, its momentum can be very hard to stop. In part this is a result of social networks and chain migration (Boyd, 1989; Gurak and Caces 1992, Koser 1997). In part it is because a multi-billion dollar migration industry has evolved that has a vested interest in migration continuing. This industry has both a legitimate aspect – including travel agents, recruitment agents, and lawyers, and an illegitimate aspect, most obviously including migrant smugglers and human traffickers (Salt and Stein 1998). … … • Fourth, people fleeing circumstances they consider intolerable will enter the illegal migration stream and test various receiving states' defenses repeatedly. Why does it fail? • a number of challenges that EU Member States face in enforcing their policies in relation to undeclared work. These include: – 1) Lack of coordination and cooperation between the actors responsible for combating illegal work at the local level and between the local, regional and national levels; – 2) Absence of a structural and/or legislative framework that governs such coordination and cooperation; – 3) Insufficient human resources allocated to the bodies or units that are expected to deter, detect and penalise undeclared work; – 4) Inadequate financial resources at the disposal of the competent bodies or units to undertake monitoring and act upon violations observed; – 5) Obstacles to field operations (e.g. legislation that allows employers to deny access to inspectors if they regard conditions on the site as unsafe); – 6) Lack of information to undertake effective controls (e.g. few risk analyses, limited access to information from tax authorities and banks on companies under suspicion, employees reluctant to testify against those who exploit them); – 7) Lack of data to assess the outcome of inspections; and, – 8) Insufficient international cooperation (Proposal 2007). Number of regularisations (in thousands) 1981-1988 1990-1993 1996-1998 2000-2005 TOTAL France 121.1 77.8 198.9 Greece 371 351 722 Italy 118.7 217.7 461.6 634.7 1 432.7 Portugal 39.2 21.8 182.2 243.2 Spain 43.8 110.1 21.3 947.2 1 122.4 TOTAL 283.6 367 953.5 2 115.1 3 719.2 United States 405 400 805 Source: OECD/Sopemi 2006 according to Diez Guardia, Pichelmann 2006 Regularisation • The study entitled ‗REGINE – Regularisations in Europe. Study on practices in the area of regularisation of illegally staying third-country nationals in the Member States of the EU‘ (2009) has been commissioned by the European Commission and has been conducted by a team of researchers at the International Centre for Migration Policy Development (ICMPD), with additional contributions from external experts • See http://ec.europa.eu/justice_home/doc_centre/immigration /studies/doc_immigration_studies_en.htm and http://research.icmpd.org/1184.html Regularisation • The EU Member States currently use, or have used, some sort of regularisation measure in the recent past, although the extent to which they use regularisation as a policy tool varies greatly. Regularisation • In the study, regularisation is defined as any state procedure by which illegally staying third country nationals are awarded a legal status …, although actual practices are more complex … Regularisation • 1) There are various regularisation procedures that allow illegally staying migrants to acquire a legal status from within their current country of residence. • 2) regularisation measures sometimes target various categories of technically legally staying migrants on transitional or restricted permits. • 3) regularisations sometimes award statuses short of a fully fledged legal status, notably in cases in which a removal order is formally temporarily suspended (‗toleration‘). Regularisation • Between 1996 and 2008 available data show that in total some 3.5 million persons were regularised in the EU27 in the period under review, with the actual number likely to be substantially higher (5.5-6.0 mil). (43 regularisation programmes have been implemented in 17 EU Member States) (see REGINE 2009) Regularisation • European Union Member States regularise irregular migrants through two basic types of regularisation measures – regularisation programmes and regularisation mechanisms. Mechanisms are part of the regular migratory policy framework and are thus permanent measures; Programmes - specific measures - run for a limited period of time and typically target specific categories of non-nationals in an irregular situation, typically 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: 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. Regularisation • Criteria and procedures in regularisation mechanisms, by contrast, are often less well defined, leaving substantial room for administrative discretion. – typically these are small-scale measures, regularising only relatively small numbers of irregular migrants and are focused largely on humanitarian cases. Regularisation • Italy (under 1.5m applications); • Spain with 1.3m, and Greece just under 1.2m - mostly broadly designed regularisation programmes targeting undocumented migrant workers - these three countries account for 84% of known applications in regularisation programmes. • In Northern European countries typically have targeted humanitarian cases, including long-term and rejected asylum seekers, non- deportable aliens, family members, amongst others. Regularisation • In contrast to programmes, many statistics on regularisation mechanisms are either not collected or not available. … regularisations through mechanisms are usually administered through the regular framework for issuing residence permits. Regularisation • In EU Member States - regularisation follows two distinct logics: – 1) a humanitarian and rights based logic • regularisation is typically based on a broad set of humanitarian criteria and generally is informed by human rights considerations – 2) a non-humanitarian, regulatory and labour market oriented logic • regularisation is a means to achieve wider objectives, and in particular to address the nexus of irregular migration and the informal economy…aim at combating undeclared work, ensuring compliance with tax, social security obligations and at enforcing social rights and labour standards, and thus, fighting social exclusion, vulnerability and other ills associated with undeclared work. In addition, there is an aim to promote the integration of regularised migrants Regularisation • The study suggests that the overall impact of regularisation programmes is positive, with small but permanent reductions in irregular residence/employment. • The study finds only limited evidence for a pull effect of regularisations, although there is evidence that regularisation measures have a negative impact on return programmes. • Regularisation mechanisms generally seem to provide a useful and flexible tool to address humanitarian cases, although nontransparency of rules and administrative practice stand out as major problems. Regularisation- policy recommendations • The study recommends that policy responses should adopt a long term perspective and put efforts into reforming recruitment and admission policies. • However, in the short term and in particular in countries with large irregular migrant stocks, regularisation is often a necessary and unavoidable option to address the presence of irregular migrants, • Fourthly, the study finds that the asylum system is closely linked to the “creation” of irregular migrants, particularly in Northern European countries, reflecting considerable differences in access to protection across European states. – a need to elaborate clear rules regarding the treatment of the small but significant number of persons who cannot be removed over an extended period of time, many of whom are rejected asylum seekers not qualifying for Convention status or subsidiary protection. Regularisation- policy recommendations • The study identifies family-related reasons as increasingly important grounds on which irregular migrants are regularised, suggesting deficiencies of the existing legal regulations for family reunification and a need for more flexible approaches in this regard. Regularisation • Besides the national level - regularisation clearly falls within the scope of the competence of the EU in the area of migration as defined by Article 63 (3) of the Amsterdam Treaty) • There is no consensus within the EU-27 concerning the need for regularisation policies. Given the diversity of positions over the need for regularisation, governments on the whole, are not in favour of regulation at the European level. However, there is considerable support among governments for increased exchange of information, including the exchange of good practices. - In general, trade unions are cautious supporters of regularisation policies. - NGOs are the most active actors concerning mobilisation and campaigns for regularisation programmes—most notably in Belgium, France, Portugal, Spain, the UK, Ireland and Germany. Regularisations (Laubenthal 2007) • The recent pro-regularisation movements in France, Spain and Switzerland emerged in the context of three common preconditions that encouraged their emergence. – 1) The first common precondition was the factual acceptance of illegal migration as a mode of immigration. … Regularisations (Laubenthal 2007) 2) The second precondition was that before the protests, changes in the national civil societies had taken place leading to the presence of new actors who were available to support the illegal migrants‘ cause. Regularisations (Laubenthal 2007) • In France, under the leitmotif of social exclusion, a network of new actors emerged which put forward the demand for regularisation and linked it to claims for social rights for other socially vulnerable groups. • Spain, too, the core supporters of the protests were newly founded actors. These were antiracism and human rights groups that represented a new segment of civil society that criticized Spanish immigration policy from a human rights and/or anti-globalisation perspective and endorsed an unconventional action repertoire. • In Switzerland, established actors in the field of immigration supported the demand for regularisation. Swiss trade unions were well-organized and numerically strong allies which, because of their historical development, were strongly disposed to act as representatives of migrants‘ interests. Regularisations (Laubenthal 2007) 3) The third precondition for the emergence of the pro-regularisation movements was the existence of historical linkages between the countries of origin and the countries in which the protests took place. These linkages were rooted either in the countries‘ colonial past or in their recent migration history, and could be used by the movements to legitimate their demands. Recommendations (Proposal 2007) Policy options at the EU level A multi-criteria analysis has been used to assess and compare impacts, – The preferred option • On the basis of the comparison of the options and their impacts on meeting policy objectives and contributing to and respecting fundamental rights, and in the light of Member States‘ and stakeholder views, and practicality and costs, the preferred option is a combination of: • Option 4: Harmonised employer sanctions and preventive measures for employers to relevant documentation (residence and work permit) and to notify a competent national body; and, • Option 6: Identification and exchange of good practice between Member States. Recommendations (Proposal 2007) • It is proposed that this preferred policy option would be accompanied by the following supporting measures at Member State level: • Each Member State would – identify the competent authorities – develop/refine the procedures to be followed by the employers – data protection – compliance with the requirement to submit relevant documentation – establishment of protective measures for illegally employed third-country nationals in case of sanctions for the employer, – awareness raising campaigns Recommendations (Koser 2005) A typology of state policy instruments to address irregular migration Pre-frontier measures • Visa requirements • Pre-boarding documentation checks in countries of origin and transit • Information campaigns • Carrier sanctions • Liaison officers • Interdiction and interception • Regional processing • Punitive measures against human smugglers Measures relating to border management • Strengthened physical borders (fences, electronic surveillance) • Strengthened border controls and inspections • Documentation with enhanced security features • Biometric data • Training border guards Recommendations (Koser 2005) Post-entry measures • Detention • Workplace inspections • Internal ID inspections • Accelerated procedures • Employer sanctions • Dispersal and restrictions on mobility • Restrictions on the right to work, access to housing, legal advice and social welfare benefits Policy recommendations Policy should usually incorporate the following key components (Koser 2005) – Control measures and law enforcement – Regular and organised migration programmes – Return programmes – Strategies for combating migrant smuggling and human trafficking – Special programmes for ensuring the protection of refugees within broader migration movements Policy should be guided by the following underlying principles: – A long-term approach that takes account of the causes and effects of irregular migration – A balanced approach that reconciles state sovereignty with the rights of individuals – A unified approach that incorporates dialogue between different parts of government; between government, NGOs and civil society, and between governments in different countries Policy recommendations – summary • Governments should systemically and regularly review internal controls in order to reduce opportunities for irregular immigrants to gain footholds • It is necessary to focus upon real and would-be employers in order to substantially limit the ―comparative advantages‖ of irregular/illegal employment. • Higher effectiveness of sanctions and preventive measures • Law enforcement must be improved (low number of prosecutions …) • The procedures that employers are to follow must be short and flexible enabling rapid responses to changes in the (labour) market. • To standardize as much as possible fines for employers of illegally staying third-country nationals • Channeling much more illegal immigration into regulated pathways - governments should widen and deepen legal immigration channels of various forms • Effective migration management requires better coordination and cooperation among and within governmental, intergovernmental and non- governmental agencies dealing with migrants. Policy recommendations - summary • More intensive international cooperation, more intensive regional dialogue and partnerships • More robust, long-term and better targeted economic assistance for countries or regions (education, development etc.) that are the source of illegal migrants • Better research and data collection • Services for the victims of trafficking • Identification and exchange of good practices on the implementation of employer sanctions between Member States (like systems of employer inspections; the training of employers; methods for regularising/removing third country nationals identified as working illegally; the application of sanctions; the detection of systematic and large scale illegal employment; the links between illegal employment of third country nationals without the right to work and the wider informal economy.
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