Wishful thinking or common sense? The case for a right to remain for irregular migrants in the European Union

Open Access

Abstract

The growth in international migration in recent decades has been accompanied by a corresponding increase in states' migration control activities. This has included a proliferation of laws aimed at regulating movement across international borders and has resulted in a sizeable population of irregular migrants. This increase in irregular migration is itself partially a product of states' efforts to control movement for which they themselves might be said to bear some responsibility. It means that there are now millions of individuals whose unlawful presence in countries across the Western world puts them at heightened risk of exploitation and renders them unable, in practice, to access the protections of the international human rights regime. Fear of expulsion means that irregular migrants are reluctant to report abuses to the authorities, and that they are often unwilling to access essential services to which they are entitled. In this dissertation I draw on the work of theorists across a variety of disciplines, and in particular on Carens's theory of social membership, to identify convergence around the normative contention that time spent in a host state grounds a claim to remain on the part of unlawfully present migrants. In other words, the more time a migrant spends in a host state, the stronger her claim to a right to remain becomes, with a corresponding diminution in the weight attaching to the nature of her entry or stay and the state's right to deport her. I apply this theoretical framework to the rapidly evolving EU migration law regime. I argue that, despite the focus in the EU response to irregular migration on prevention and expulsion, there is a strong seam of support in EU policy and legislation for regularisation. This is a process involving the conferral of a legal status on irregular migrants. Regularisation removes such migrants from the sphere of illegality, and the vulnerabilities to which it is so conducive. All 27 EU member states are also member states of the Council of Europe and the EU itself is obliged to accede to the European Convention on Human Rights (ECHR). I therefore examine the case law of the European Court of Human Rights on migrants' right to respect for family and private life so as to identify the human rights standards with which the EU and its member states are required to comply. Finally, I examine the law, policy and practice of Ireland on irregular migrants and regularisation, which I locate in the broader context of EU law and ECHR developments and harness to illustrate the wider arguments advanced throughout the dissertation. Ultimately, I argue for an EU-wide regularisation mechanism which would allow for the conferral of a legal status on irregular migrants, subject to minimal eligibility criteria, once they have spent a specified minimum period of time in a host state. This would vest de facto membership with de jure recognition. I argue that this solution is a necessary element of an effective migration law system. It is not, however, the sole element and neither is it incompatible with the operation of a strict migration control policy.