Blog post by Alan Desmond, University of Leicester, and forms part of a series of blog posts responding to the UK Home Office’s New Plan for Immigration.
Introduction
The Home Office’s New Plan for Immigration indicates an intention to turbo-charge the hostile environment policy in operation since 2012. It reveals an ongoing preoccupation with preventing irregular entry and with “ensuring the swift return of those not entitled to be in the UK.” As such, the New Plan misses an opportunity to pursue regularisation in conjunction with – or as an alternative to – return as a way of reducing the UK’s irregular migrant population, recently estimated to be in the range of 594,000-745,000. Following the closure of applications to the EU Settlement Scheme in June, the number of migrants without lawful status in the UK is likely to grow further.
In this blog post, I consider regularisation for irregular migrants in the UK as an alternative to the New Plan’s focus on removal. While the New Plan fails to engage with regularisation as a policy option, I show that this way of addressing the presence of irregular migrants finds support both in international human rights law and state practice. I conclude with an exploration of what an effective regularisation scheme could look like.
Regularisation
Regularisation may be broadly defined as any state procedure by which unlawfully staying non-citizens are awarded a legal status in their host state. Regularisation has been undertaken in countries across the globe for a variety of reasons, ranging from the humanitarian to the practical. It may occur on the basis of one-off programmes to which migrants have to apply within a specified, limited period of time, or be based on a permanent feature of a state’s migration law framework. The eligibility criteria for regularisation, as well as the particular type of migration status conferred on regularised migrants, may vary from programme to programme and from country to country.
Despite the political sensitivity and official hostility surrounding regularisation, it is a means of addressing the presence of irregular migrants that has been frequently and widely used. It is estimated that between 1996 and 2008 in the EU, as many as 6 million migrants may have been involved in transitions from irregularity to a legal status. Since the UK initiated its first regularisation scheme in 1974 for the benefit of citizens from the Commonwealth and former colonies, it has gone on to permit regularisation for other target groups such as domestic workers and unsuccessful asylum seekers. There is currently a complicated patchwork of limited, expensive and administratively onerous ways in which some irregular migrants in the UK may seek to regularise their status (helpfully summarised in a recent excellent JCWI report).
The Case for Regularisation
Irregular migrants’ unlawful presence puts them at constant risk of removal. This has many negative consequences, including making irregular migrants reluctant to access rights formally conferred on them by regional and international human rights instruments. It means that such migrants will often avoid accessing services to which they are entitled because they fear being reported to immigration enforcement authorities and expelled from their host state. For this reason, they may be afraid to report a crime, making them perfect prey for criminals. They will be slow to seek redress through official channels if they are underpaid, unpaid or otherwise exploited or abused by employers, making them ideal victims for unscrupulous employers seeking to gain an unfair competitive advantage. They may avoid accessing health care services until an illness becomes acute, creating a health risk not just for themselves, but for the wider community, an issue of particular relevance in light of the ongoing COVID-19 crisis. Often informally employed in low skilled jobs, irregular migrants are especially vulnerable to being forced to work in conditions conducive to the spread of the virus.
Regularisation removes the Damoclean threat of removal that shapes and structures the lives of irregular migrants. It puts them in a position to enjoy in practice the rights to which they are entitled on paper. In addition to the compelling compassionate and human rights grounds in favour of regularisation, there are also important practical considerations that point to regularisation as a commonsense course of action. As a matter of logistics, most host states would not find it feasible to remove all unlawfully present migrants. Practical barriers to realisation of a policy with removal at its heart include lack of willingness on the part of other states to facilitate removal and lack of cooperation from migrants themselves. The statistics on removal bear this out. Removals from the UK have been falling since 2015, a trend that the New Plan partly blames on an “increased pattern of repeated and often last-minute claims… challenging our ability to lawfully remove individuals.” Looking beyond the UK, of the 491,200 non-EU citizens ordered to leave the EU in 2019, a total of only 142,300, just under 29%, left or were forced to leave the EU.
It is also worth highlighting that irregular migration is a product of the complex and restrictive way in which states design and implement their immigration law and policy, and that irregular migrants are often only partially responsible for their lack of status. The presence of migrants in an irregular situation may be attributed to factors including economic deprivation in countries of origin, a demand for labour in host countries and lack of regular migration routes facilitating a legal confluence of supply and demand. Research in countries including the US and the UK indicates that most irregular migrants are essentially long-term residents, having lived in their host state for over five years. Regularisation might therefore be viewed as a corrective mechanism that addresses the harm caused by a malfunctioning immigration system.
Regularisation: the Position in International Human Rights Law
There is no strict obligation under international human rights law for states to regularise unlawfully present migrants. There is, however, widespread and growing international support for regularisation as a means of addressing the presence of irregular migrants in a host state. UN human rights treaty bodies have encouraged regularisation as a way of ensuring that rights set out in the core international human rights instruments are available, not only in theory but also in practice, to irregular migrants (e.g. the recommendation to Kazakhstan of the UN Committee on the Elimination of Racial Discrimination and the recommendation to Ukraine of the UN Committee on Economic, Social and Cultural Rights).
In General Comments adopted jointly by the UN Committee on Migrant Workers and the UN Committee on the Rights of the Child in 2017, both treaty bodies invoke the principle of the best interests of the child to recommend that states put in place avenues for regularisation as a way of preventing exploitation and marginalisation of migrant children and their families. More recently, UN human rights experts have encouraged states to create pathways to legal status to help reduce the vulnerability of irregular migrants to the ramifications of the ongoing global health crisis.
Good faith compliance with the UN Global Compact for Safe, Orderly and Regular Migration (Marrakesh Compact), adopted in 2018, arguably requires the UK to give consideration to regularisation. The Marrakesh Compact is a non-legally binding multilateral agreement that puts in place a cooperative international framework to ensure that cross-border migration occurs through legal channels in a manner that is safe and orderly. This cooperative framework rests on the Marrakesh Compact’s 23 Objectives, with each Objective accompanied by actions that provide concrete examples of the measures states may take to realise the Objective in question. Given that the Marrakesh Compact is based on international human rights law and is to be implemented in a manner that is consistent with international law (Marrakesh Compact, paras 15 and 41), and given that the UK has ratified all core UN human rights instruments, with the notable exception of the conventions on migrant workers and enforced disappearances, the recommendations of the UN treaty monitoring bodies mentioned in the foregoing paragraph will be of relevance when reviewing domestic compliance with the Marrakesh Compact.
The ultimate goal of the Marrakesh Compact, to bring about migration that is safe, orderly and regular, cannot be achieved without recourse to regularisation. Continued presence of irregular migrants will, by definition, defeat the objective of ensuring regular migration: irregular migrants are, for self-evident reasons, in an unsafe situation. Beyond the bare title and aim of the Marrakesh Compact, the text of the document itself arguably requires recourse to regularisation to achieve effective protection of “the human rights of all migrants, regardless of their migration status” (Marrakesh Compact, para 15). This is most sharply illustrated by Objective 7 on addressing and reducing vulnerabilities in migration. The non-exhaustive list of 12 actions guiding states’ response to the needs of vulnerable migrants includes two key items concerning regularisation. Firstly, states should develop “procedures that facilitate transitions from one status to another … so as to prevent migrants from falling into an irregular status.” Secondly, states should provide irregular migrants with “an individual assessment that may lead to regular status, on a case by case basis and with clear and transparent criteria,” especially where questions of family life are involved (Marrakesh Compact, para 23(h) & (i)).
The support for regularisation in the Marrakesh Compact is particularly noteworthy when read in light of the view expressed by the UK in 2018 that the Compact is not in conflict with its current domestic policies and that, furthermore, “the Compact will help us take important steps to keep migrants around the world safe and to protect the most vulnerable, domestically and overseas, who can become victims of modern slavery.” This could reasonably give rise to the inference that the UK accepts the need for regularisation. At the same time, however, it is important to note that during the vote on the Marrakesh Compact at the UN General Assembly on 19 December 2018 the UK Mission to the UN delivered an explanation of position that included the view that:
The list of actions under each commitment constitute examples that could contribute to the implementation of the Compact. However, it is up to each State to decide how and whether to draw from those examples in developing its own national policies.
Regularisation: the Position in the Council of Europe
The UK is one of the 47 member states of the Council of Europe (CoE), a regional intergovernmental organisation established after the second World War to promote democracy, human rights and the rule of law. As far back as 2006 the Parliamentary Assembly of the Council of Europe (PACE) recommended that, in order to ensure that irregular migrants can enjoy their minimum rights in practice, states should consider “all relevant means for regularising the situation of irregular migrants” where there are reasons why they cannot or should not be returned to their country of origin. A year later, the PACE endorsed regularisation “as a means of safeguarding the human dignity and human rights of a particularly vulnerable group of persons in member states of the Council of Europe.”
A human rights standard of particular relevance in the CoE context is Article 8 of the European Convention on Human Rights (ECHR) which confers on everyone within the jurisdiction of a CoE member state the right to respect for private life and family life. Many irregular migrants will enjoy family life in their host state and all may claim the existence of a private life, a “network of personal, social and economic relations.” Since 2006, an increasing number of irregular migrants have successfully relied on Article 8 ECHR to resist expulsion, with the European Court of Human Rights (ECtHR) finding that the applicant’s right to respect for private and/or family life obliges the host state to allow the applicant to remain, notwithstanding his or her unlawful presence. These rulings indicate a nascent acceptance on the part of the ECtHR of a right to remain for irregular migrants on the basis of ties to the host state. They are of direct relevance to the UK. The Human Rights Act 1998 requires domestic courts and tribunals to take account of relevant ECtHR judgments when adjudicating on ECHR rights, and makes it unlawful for public authorities to act in a way which is incompatible with those rights.
Renewed Receptiveness to Regularisation
Despite the politically contentious and divisive nature of regularisation, there is some recent evidence of greater receptiveness to this policy option across a number of jurisdictions. Italy and Portugal initiated regularisation programmes in 2020, while President Biden sent the US Citizenship Act of 2021 to Congress on his first day in office. If enacted in its current incarnation, it would create a route to citizenship for the country’s estimated 10.5 million unlawfully resident migrants. More recently, the Irish government announced a regularisation scheme that will allow successful applicants to begin the path to citizenship, an issue of relevance to the UK given the ongoing commitment of the UK and Irish governments to the Common Travel Area.
These regularisation initiatives may indicate that we are now at a point where we can “step back from the fray and rethink basic premises” and advance ideas and policy proposals that before now would have had little public or political purchase. This opportunity has been seized in the UK by a number of groups to push for regularisation. In March 2020, the grassroots movement Status Now 4 All called on the Irish and British governments to confer legal status on all irregular migrants. In February 2021, the think tank IPPR produced an excellent report entitled Beyond the Hostile Environment in which it outlined a proposal for regularisation, while the call in the more recent JCWI report We Are Here for a re-orientation of the UK immigration system along more migrant-friendly lines also requires regularisation. The work of these organisations, and initiatives like Regularise and the JCWI’s ongoing regularisation campaign, will be essential to changing the current direction of travel charted for the UK by the New Plan’s call “to legislate further to ensure that people who have no right to be in the UK… are swiftly removed from the UK.”
What would an Effective and Meaningful Regularisation Scheme Look Like?
For regularisation to comply with relevant guidance provided at the international and Council of Europe levels, it is important to learn from the mistakes that have undermined past regularisation efforts in countries around the world. Firstly, an energetic awareness-raising campaign would be needed to ensure information about any new pathway to legal status reaches the target group, some of whom may be socially isolated and/or reluctant to participate in an official government initiative. This would require direct engagement with migrant communities and migrant support organisations, and provision of informational material in a variety of languages. Local authorities could play a key role in providing effective legal advice to migrants and migrant support organisations, and assistance in submitting applications and any necessary appeals.
Secondly, to reduce the understandable reluctance of irregular migrants to provide detailed personal information as part of a government initiative, any regularisation should be accompanied by a “firewall”, a guarantee that the personal data of applicants will not be used for purposes of immigration control and enforcement. Many individuals will refrain from applying for regularisation if they fear that an unsuccessful application may result in removal. The two General Comments adopted jointly by the UN Committee on Migrant Workers and the UN Committee on the Rights of the Child in 2017 call for the development of effective firewalls between public or private service providers and immigration enforcement authorities to ensure that irregular migration status does not operate to limit enjoyment of children’s rights. The firewall principle has also been endorsed as a means of securing the rights of irregular migrants by UN human rights experts including the Special Rapporteur on Adequate Housing (following a country visit to France), and in a 2016 policy recommendation issued by the Council of Europe’s Commission against Racism and Intolerance.
Compliance with the Marrakesh Compact also seems to necessitate firewalls in the context of irregular migration. Objective 6 of the Compact on ethical recruitment and decent work includes an action to ensure that migrants exploited in the informal economy have access to reporting mechanisms “in a manner that does not exacerbate vulnerabilities of migrants that denounce such incidents” (Marrakesh Compact, para 22(j)). Similarly, Objective 15 on access to basic services includes an action to ensure that “cooperation between service providers and immigration authorities does not exacerbate vulnerabilities of irregular migrants by compromising their safe access to basic services” (Marrakesh Compact, para 31(b)). Objective 7 on reducing vulnerabilities in migration essentially invites all states to consider firewalls by reviewing “labour laws and work conditions to identify and effectively address workplace-related vulnerabilities and abuses of migrant workers” (Marrakesh Compact, para 23(d)).
Thirdly, to shrink a state’s population of irregular migrants as far as possible, any new pathway to legal status should be subject to minimal eligibility criteria. Reasonable criteria would include a requirement for applicants to have been present in the state for a specified minimum period of time (JCWI suggests five years) and the absence of a serious criminal record. Evidence of presence in the state for the minimum period required might include travel documents, utility bills, payment slips, letters of confirmation from employers or representatives of migrant support organisations or community representatives. Other eligibility criteria, such as previous lawful presence or past possession of a work permit, would severely restrict the pool of potential applicants and thereby undermine the effectiveness of the regularisation initiative (as occurred in the past, e.g. in Italy and Poland).
Fourthly, caution should be exercised when it comes to the revenue-generating potential of regularisation. Application fees for regularisation should be set at a rate that covers the administrative costs involved, and should not be so high as to have the practical effect of preventing otherwise eligible candidates from submitting applications.
Fifthly, for regularisation to be meaningful, it must provide successful applicants with immigration permission which, even if initially temporary, is easily renewable. Time spent in the UK on such permission should be reckonable towards permanent residence/indefinite leave to remain and, ultimately, citizenship. In the past, some countries provided short-term legal status to irregular migrants and then allowed them to fall back into irregular status, essentially defeating the purpose of the initial regularisation.
Finally, however hard a sell it might be, consideration should be given to putting regularisation on a permanent footing. Introducing a one-off time-bound scheme that accepts applications only until a specified future date may reduce the current irregular migrant population, but will do nothing to address the situation of future irregular migrants. Irregular migration is a reality of the contemporary globalised world that would benefit from ambitious long-term action, instead of reactive stopgap measures.
Selected References
- Martin Baldwin-Edwards and Albert Kraler, eds., Regine: Regularisations in Europe (European Commission / Amsterdam University Press, 2009).
- Leila Bodeux, “Demystifying the Regularisation of Undocumented Migrants” (Caritas Europa, 2021).
- Alan Desmond, “Regularization in the EU and the US: The Frequent Use of an Exceptional Measure” in D. Acosta & A. Wiesbrock, eds., Global Migration: Old Assumptions, New Dynamics (Praeger, 2015) 69 – 99.
- Alan Desmond, “Out of Crisis Comes Opportunity: Reconsidering Regularisation of Irregular Migrants in the EU in the light of COVID-19” (2020) UNESCO Chair on International Migration Policy Brief Series.
- Zoe Gardner and Chai Patel, “We are Here: Routes to Regularisation for the UK’s Undocumented Population” (JCWI, 2021).
- Andrew Jolly and Bożena Sojka, Written evidence submitted to the House of Commons Public Accounts Committee inquiry on Immigration Enforcement (2020).
- Amanda Levinson, The Regularisation of Unauthorized Migrants: Literature Survey and Country Case Studies (COMPAS, 2005).
- Hiroshi Motomura, “The New Migration Law: Migrants, Refugees, and Citizens in an Anxious Age” (2020) 105(2) Cornell Law Review 457-547.
- Amreen Qureshi, Marley Morris and Lucy Mort, “Beyond the Hostile Environment” (IPPR, 2021).
The views expressed in this article belong to the author/s and do not necessarily reflect those of the Refugee Law Initiative. We welcome comments and contributions to this blog – please comment below and see here for contribution guidelines.
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