EU Policy Framework on irregular migrants

This Working Paper traces the development of EU law and policy on irregular migration. The starting point for our analysis is the entry into force of the Treaty of Amsterdam in 1999 in which the EU set itself the objective of becoming an area of freedom, security and justice (AFSJ), securing its external borders while ensuring freedom of movement for its citizens internally. The European Council’s 1999 Tampere Conclusions, the first multi-annual programme for creating an AFSJ, laid the ground for criminalisation of irregular migration and externalisation of migration control as a way of deterring and preventing irregular migration, and identified return as an important tool in the management of migration flows, a tool that has come to be the main instrument in EU efforts to deal with the presence of irregular migrants. This policy agenda has become a legal reality thanks to the law-making powers conferred on the EU in the field of immigration and asylum by the Treaty of Amsterdam.

In order to identify the main ways in which EU law and policy operate to both produce irregularity and create routes out of irregularity, we refer to the pathways in and out of irregularity elaborated as part of a broader conceptualisation of migrant irregularity in the MIrreM project.

We identify EU policy and legislative efforts to prevent and reduce irregular migration as a consistent theme of EU activity in the field of irregular migration. This restrictive approach has intensified with time, and has arguably reached a fever pitch with the adoption of the New Pact on Migration and Asylum in 2023. In parallel with measures to prevent arrival and remove irregular migrants, however, we identify a pattern of rights-expansive rulings by the two supranational European courts that is oftentimes in direct opposition to the migration control efforts of the EU and individual EU Member States (MSs).

At the same time, however, when the question of numbers of irregular arrivals takes on particular political salience, we suggest that Europe’s supranational courts become more receptive to migration control efforts that impinge on migrants’ rights and show a greater willingness to relieve the EU and its MSs of human rights obligations owed to irregular migrants.

While we identify return as the main focus of the EU’s response to the presence of irregular migrants in the EU, we also highlight the potential for regularisation to be more meaningfully employed by the EU and its MSs. We argue that under the Return Directive there is an obligation on states to either issue a return decision to an irregular migrant, or to regularise her/him. In light of how ineffective EU return policy currently appears, with just one third of return decisions implemented, greater use of regularisation would reduce the glaring gap between the number of return decisions issued and the number effected. Embracing regularisation would transform current return policy from one that is grossly ineffective to one which would have a greater likelihood of achieving the aim of lowering the number of migrants unlawfully present in the EU.

We close this Working Paper with a spotlight on three current issues that have the potential to significantly impact arrival of irregular migrants to the EU, and migrants’ entry into and exit out of irregularity over the coming years.