Return Procedures Applicable to Rejected Asylum-Seekers in the European Union and Options for their Regularisation

Return Procedures Applicable to Rejected Asylum-Seekers in the European Union and Options for... ABSTRACT Due to the ongoing refugee crisis that escalated in 2015, thousands of decisions on international protection in the European Union have been issued, of which over 40 per cent were negative. This article focuses on the legal position of these rejected asylum-seekers in 17 European Union Member States, within the scope of return procedures that are carried out as a result of the said rejections, in accordance with the rules of the Return Directive. Despite harmonization rules, national legislations have adopted different solutions with regard to the return and removal of these persons. They are examined and outlined while also taking into account the circumstances that prevent and postpone the return or removal. This can result in “limbo” situations, de facto tolerated statuses, official tolerated statuses, or even acquisition of a residence permit. Furthermore, options for regularisation (due to a regularisation programme or a mechanism) of rejected asylum-seekers are analysed and presented. The absence of such options can pose a serious legal and practical obstacle for those who – due to reasons outside of their control – stay, reside, or remain on the territory of a Member State. 1. INTRODUCTION An impressive body of European Union (EU) law has been produced in the area of asylum and migration, since the EU gained competences to harmonise EU Member States’ policies in this field. In the area of asylum, EU acquis now regulates various aspects of Member States’ asylum systems, which resulted in a Common European Asylum System (CEAS).1 Currently, four directives and two regulations comprise CEAS: the revised Asylum Procedures Directive aiming at fairer and quicker adoption of asylum decisions that are of better quality2; the revised Reception Conditions Directive, which ensures humane material reception conditions for asylum-seekers in accordance with human rights3; the revised Qualification Directive, which clarifies the grounds for granting international protection4; the Temporary Protection Directive regulating minimum standards for giving temporary protection in the event of a mass influx of displaced persons5; the revised Dublin Regulation, which determines the responsible Member State to examine an asylum application6; and the revised EURODAC Regulation, which gives law enforcement access to the EU database of asylum-seekers’ fingerprints in order to prevent, detect, or investigate the most serious crimes.7 Along with CEAS, the EU legislator has adopted a long list of EU legal instruments in the area of migration from third countries. The aspects of migration that are dealt with in EU law are entry conditions for highly skilled workers,8 single permit to reside and work,9 the right to family reunification,10 the status of third-country nationals who are long-term residents,11 the prevention and combating of trafficking in human beings and protecting its victims,12 common norms with regard to entry and residence of third-country nationals in the Schengen area,13 and common standards relating to the return of persons who do not have or no longer have a right to stay on the territory of one of the EU Member States.14 The latter are regulated in the Return Directive.15 This body of EU law is of even greater importance due to the refugee crisis that escalated in 2015. According to Eurostat data over 1.2 million16 first-time asylum-seekers (i.e. those who applied for international protection) were registered each year in 201517 and 2016.18 Their number of 164,555 in the first quarter of 201719 is lower in comparison to quarters of the previous two years. Those who submitted their asylum applications have received or will receive administrative decisions or judgments and there certainly were or will be numerous persons whose asylum applications were or will be rejected. In 2016, 39 per cent of issued decisions were rejected20 and the number is even more staggering in the first quarter of 2017 as nearly 51 per cent of issued decisions were rejected, comprising a total of 143,380 decisions.21 Due to the rejection of their applications, rejected asylum-seekers may be obligated to leave the territory of the respective Member State or be removed from it in line with the rules of the Return Directive. Considering the fact that the Return Directive is an instrument of harmonization, it is of paramount importance that the legislation of individual Member States and various national approaches are examined, in order to grasp the legal position of rejected asylum-seekers in return procedures. The purpose of this article is to examine the legal position of rejected asylum-seekers in different phases of return procedures applicable to them in 17 Member States22 and to determine whether there are any options for their regularisation despite them having received a negative final decision rejecting their application for international protection. 2. METHODOLOGY AND SCOPE OF THE RESEARCH This research builds on the functional method of comparative law, which allows the discovery of similarities and differences in Member States dealing with the return, removal, or regularisation of rejected asylum-seekers. An individual presentation of each Member State’s national legislation is avoided given the limited size of this contribution. Nevertheless, national legislation is singled out in order to illustrate Member States’ practices. The primary data for this research study was collected through the use of questionnaires. As a starting point, uniform terminology (as a thesaurus) was developed by defining the different concepts used in the questionnaire. It was of the utmost importance that these concepts were not linked to a specific national context and could be used across Member State borders. The next step was forming a questionnaire with 28 questions in total and sending it to the targeted potential respondents, who are national experts working in academia or administration under the broad domain of migration law. The number of Member States covered in the research study was therefore dependent on the number of national experts willing to contribute. Eventually, respondents from 17 out of 28 Member States committed to filling out the questionnaire.23 The questionnaires were completed and submitted by the respondents by 25 April 2016 and the respondents were frequently contacted for clarifications on their answers throughout the process of writing this contribution. Where possible, the information provided by the respondents was cross-checked against national legislation, academic literature, and the Asylum Information Database. As a final step, a preliminary version of the text was sent to all respondents in October 2016. This approach enabled all respondents to verify the findings for their Member State, and minor adjustments were subsequently made as a consequence of the respondents’ feedback. Although it was not feasible to gather respondents for each Member State in this short time span, it is argued that a representative sample was compiled. Member States from all geographic corners of the EU can be found among the selected Member States: Northern European Member States (e.g. Finland), Western European Member States (e.g. the Netherlands), Eastern European Member States (e.g. Romania), and Southern European Member States (e.g. Spain). Apart from geographical spread, the sample of Member States also contains both Member States which are large (e.g. Germany) and small (e.g. Croatia) recipients of asylum-seekers.24 In summary, the selection of Member States allows for relevant conclusions on return procedures applicable to rejected asylum-seekers in the EU and options for their regularisation. 3. DISTINCTION BETWEEN ASYLUM-SEEKERS AND IRREGULAR MIGRANTS In order to avoid terminological misunderstandings, a distinction needs to be made between asylum-seekers and migrants. The International Organization for Migration (IOM) defines an asylum-seeker as a person who seeks safety from persecution or serious harm in a State other than their own and awaits a decision on the application for refugee status under relevant international and national instruments.25 An asylum-seeker is therefore an applicant for international protection. The latter is defined in EU law as a third-country national or a stateless person who has made an application for international protection in respect of which a final decision has not yet been taken.26 A migrant, on the other hand, is defined as any person who is moving or has moved across an international border or within a State away from their habitual place of residence.27 Migrants whose movement takes place outside of the regulatory norms of the sending, transit, and receiving countries are considered irregular migrants.28 These can be divided into three groups: irregular entrants (those who evade formal migration controls and those who present false papers), over-stayers who were lawfully present in a State, but remain after the end of the permitted period,29 and rejected asylum-seekers who were issued a final decision refusing them a continuing right to remain.30 This last category includes those who stay in a State despite a final decision and those who had just received a final decision and might even intend to leave. Rejected asylum-seekers are therefore a subcategory of irregular migrants. Due to their irregular status, they have to leave the State and may be subject to removal, as is the case with non-nationals who do not possess permission to stay. 4. WHO DECIDES ON ASYLUM APPLICATIONS? The first procedural step for granting asylum is the lodging of an asylum application,31 which is then processed and leads to the issuance of a decision. In the majority of the examined 17 Member States, the competent institution for issuing decisions on asylum applications is the Ministry of Interior (Croatia,32 Slovenia,33 Spain34), or an internal organisational unit or administrative body under the Ministry of Interior (Cyprus,35 the Czech Republic,36 Finland,37 Greece,38 Hungary,39 Italy,40 Lithuania,41 Poland,42 Romania,43 and Slovakia44). In some Member States, however, the competent institution is the Ministry of Immigration (France), an agency of the Ministry of Security (the Netherlands),45 a specialised Federal Office for Migration and Refugees (Germany),46 or The Office of the Commissioner General for Refugees and Stateless Persons (Belgium).47 While different Ministries or their internal organisational units are competent to issue a decision granting or rejecting an asylum application, all of them are administrative bodies. If a decision rejecting an asylum application is issued, it is usually also final within administrative proceedings, as an appeal in these proceedings is not possible in the majority of Member States (except in Greece48 and Poland49). Even though appeals within administrative proceedings are not foreseen in the legislation of Member States (barring some exceptions), judicial review of negative administrative decisions is obligatory under Article 46 of the revised Asylum Procedures Directive. In the majority of examined legislations of Member States, the competent judicial body is an Administrative court (Belgium,50 Croatia,51 Cyprus, the Czech Republic,52 Finland,53 Germany, Greece,54 Lithuania,55 the Netherlands, Poland,56 Romania,57 Slovenia,58 and Spain). In some cases, it is the competence of a specialised court, as is the case in France, where the competent court is the Cour nationale du droit d'asile, or in Hungary, where the specific regional Labour and Public Administration Court is competent. The Civil Tribunal in Italy and regional general courts in Slovakia (but with a specific territorial competence in Bratislava and Košice)59 are competent to review administrative decisions and their judgments are final. Nevertheless, judicial appeal to the High Administrative Court (Croatia), Supreme Administrative Court (the Czech Republic, Finland,60 Germany,61 Lithuania, Poland),62 Supreme Court (Cyprus,63 Slovakia), Council of State (Belgium,64 the Netherlands),65 or the highest administrative court (Conseil d'Etat in France) is possible in some Member States. Interestingly, at least in Slovenia, Croatia, and the Czech Republic, an additional option available to a rejected asylum-seeker is to lodge a complaint before the Constitutional Court in the case where the applicant claims a violation of a human right or a fundamental freedom, guaranteed by the respective Constitution. 5. RETURN PROCEDURES The lodging of an asylum application and its processing generally means that the applicant is granted a right to stay until a decision granting or rejecting the asylum status is issued. If the asylum decision is negative and the asylum-seeker is rejected, the usual consequence is a person’s loss of the right to stay in the respective Member State. In this case, the rejected asylum-seekers’ stay on the territory of a Member State is considered to be illegal.66 This is, however, only a general statement, as theoretically a person might have a residence permit based on different grounds, for example if he or she67 has a visa or joins a legally staying family member in the respective Member State. In practice though, a rejected asylum-seeker in most cases does not stay legally on the territory of a Member State and a return decision has to be issued to him. This obligation is imposed as a general rule to Member States in Article 6(1) of the Return Directive. The following paragraphs allow for a limited number of foreseen exceptions to the general rule. One of these exceptions allows for Member States to decide at any moment to grant an autonomous residence permit or other authorisation offering a right to stay for compassionate, humanitarian, or other reasons to third-country nationals staying illegally on their territory. In such a case, no return decision is issued or a previously issued return decision is withdrawn or suspended for the duration of the validity of the residence permit or other authorisation offering a right to stay.68 5.1. No return decision The possibility of rejecting an asylum application without issuing a return decision can be found in the legislation of some Member States. Even though an asylum-seeker is rejected, he need not always be subject to a return decision in the Czech Republic,69 Finland,70 Spain,71 Poland,72 and Lithuania. In Lithuania, for instance, a return decision is not automatically issued after the rejection of an asylum application. If a foreigner (e.g. rejected asylum-seeker) has other legal grounds for staying (e.g. their stay is not considered illegal), a return decision is not issued.73 Furthermore, a return decision is not issued when it would violate the principle of non-refoulement, that is when a foreigner cannot leave because of humanitarian reasons, or if he was a victim of human trafficking and is granted a period for deciding whether to cooperate with a pre-trial institution or a court. 5.2. Return decision and voluntary return period More often though (barring the exceptions above), a return decision is issued once an asylum application is rejected and becomes final. When that happens, the return decision – according to the harmonized rules – includes a time period within which a person without legal grounds for staying (e.g. a rejected asylum-seeker) may voluntarily leave the territory of the respective Member State that had issued the decision. A voluntary return means that rejected asylum-seekers themselves decide to return to their country of origin and they may receive administrative, financial, and logistical support in some Member States. This period can range from 7 to 30 days,74 and several of the analysed Member States have implemented this exact period in their legislation (Belgium,75 Croatia,76 Cyprus, Finland,77 Greece, Italy,78 Lithuania,79 Slovenia, Slovakia80), or a period of around 15 (Romania81) or 30 days (Hungary,82 France,83 Germany,84 the Netherlands,85 Poland). A longer voluntary return period is given in the Czech Republic (7–60 days).86 This is not prohibited, as Article 4, paragraph 3 of the Return Directive allows for more favourable provisions to persons concerned, as long as the provisions are compatible with the directive.87 When determining the voluntary return period, the circumstances of an individual (Finland) and his ability to actually leave the Member State (Slovenia)88 are taken into account. A bought plane ticket (for which a rejected asylum-seeker had to have all documents), or accommodation in a Foreigners Centre can influence and shorten the voluntary return period (as is the case in Lithuania). 5.3. Return decision and no voluntary return period It is important to note that the voluntary return period is not given to everyone. If a risk of absconding exists (Belgium, Finland,89 France, Greece, Poland,90 Lithuania, the Netherlands, Slovenia,91 Cyprus), if an application for a legal stay has been dismissed as manifestly unfounded (Finland,92 Greece, the Netherlands) or fraudulent (Belgium, France, Cyprus), if the person concerned poses a risk to public policy,93 public security, or national security (Belgium, Cyprus, the Czech Republic, Finland, France, Greece,94 the Netherlands,95 Poland, Slovenia), or if the applicant has not complied with the imposed preventive measures (Belgium), the Member State may refrain from granting a period for voluntary departure, or may grant a period shorter than seven days.96 The question which is not answered by the Return Directive, however, is: what presents the risk of absconding and how is it determined? In the Return Directive, the risk of absconding means “‘the existence of reasons in an individual case which are based on objective criteria defined by law to believe that a third-country national who is the subject of a return procedure may abscond”‘.97 It is then up to the Member States to determine the reasons by law which are based on objective criteria that lead to the belief that an individual may abscond.98 Examples of these (objective) criteria can be found in Slovenian and Polish legislation. In Slovenia,99 the circumstances that may lead to a belief that the risk of absconding of a foreigner (e.g. a rejected asylum-seeker) is present are: previous illegal stay of the foreigner in Slovenia; entry of the foreigner despite an entry ban; conviction for a criminal offence that is final; possession of a foreign, forged, or otherwise changed passport or other document; stating false data or not cooperating during the process, or the foreigner’s behaviour that shows that he will not leave Slovenian territory in the voluntary departure period.100 In Poland, the likelihood that a foreigner will escape is evident in particular when a foreigner (e.g. a rejected asylum-seeker): declares his or her unwillingness to fulfil his or her obligation arising from the receipt of the decision imposing the return obligation; has no documents certifying his or her identity; has crossed or attempted to cross the border in breach of legal regulations, or entered the territory of Poland in the duration of his or her inclusion in the register of foreigners whose stay within the territory is undesirable or in the Schengen Information System (SIS) for the purpose of refusing entry.101 Lack of such a specification of objective and serious elements to the risk of absconding can result in the annulment of an administrative decision. Such an example was already established in Belgium.102 5.4. Obligations related to voluntary departure Related to the risk of absconding are also measures that aim to avoid it. Member States may, for the duration of the voluntary departure period, impose certain obligations upon the respective individuals, such as regular reporting to the authorities, deposit of an adequate financial guarantee, submission of documents, or the obligation to stay at a certain place.103 Provisions on the possibility of imposing these measures can be found in the legislation of the Czech Republic,104 Poland,105 and Slovenia.106 Whether one, two, or more of them are imposed upon a foreigner is determined in the return decision. 5.5. Return decision and extended voluntary return period When determining the voluntary return period of a rejected asylum-seeker in accordance with Article 7 of the Return Directive, Member States shall, where necessary, extend the period for voluntary departure for an appropriate period, taking into account the specific circumstances of each individual case (the Netherlands),107 such as the length of stay, the existence of children attending school, and the existence of other family and social links.108 Some Member States allow that the voluntary departure period is extended because of the length of stay (Belgium, Italy, Lithuania, Slovakia, Poland), health problems (Greece,109 Hungary), because children still attend school (and are close to finishing it),110 or because other family, social (Belgium,111 Cyprus, the Czech Republic, Italy, Poland,112 Slovakia,), or economic (Lithuania)113 ties exist with the territory of the respective Member State. Different solutions are present in some other Member States. Namely, some legislations do not provide for a set of specified circumstances for the extension of the voluntary return period, but more generally, such an extension can be granted if exceptional reasons are related to the case (Finland,114 Spain115). National legislation in Belgium also allows for an extension of the time limit for voluntary departure if the rejected asylum-seeker provides proof that departure cannot be carried out within the given time limit.116 Furthermore, although some national legislations may not provide for the possibility of an extension, it is de facto allowed in practice (Germany),117 namely for personal visits − to say goodbye to friends or relatives for example. Additionally, the willingness or unwillingness to facilitate the return of a rejected asylum-seeker can also serve as a reason for the extension of a voluntary departure period (Italy, Belgium), along with the high chance that it will be possible to arrange for departure in the extended period. This can be observed in the Netherlands.118 The Return Directive does not, however, determine timeframes, nor does it limit the period of time to which the voluntary departure period can be extended. Therefore, these differ significantly across Member States. The maximum period in total can be two (Lithuania), three (Croatia,119 the Netherlands,120 Spain), six (the Czech Republic), or even 12 months (Poland). 6. REMOVAL If a rejected asylum-seeker does not comply with the obligation to voluntarily leave the territory of the Member State in the prescribed period of time or if they are not given a voluntary departure period,121 the Member State is obliged to take all necessary measures to enforce the issued return decision.122 In this regard, a removal decision is issued in Belgium,123 Croatia,124 the Czech Republic, Finland, Germany, Greece, Hungary, Italy, Lithuania, Romania,125 Slovakia, and Slovenia.126 According to Article 6, paragraph 6 of the Return Directive, Member States can issue a return decision determining the end of a legal stay together with a removal decision in a single administrative or judicial decision, or act as provided for in their national legislations. When adopting the Directive, the aim was, as a general principle, to establish a two-step127 procedure: as a first step a return decision is issued with the chance to return voluntarily and a removal decision is issued only when the person concerned fails to do so. As many Member States expressed concern about procedural delays that could be caused by this, the option to implement a two-step or a one-step (all decisions issued at once) procedure was left to the Member States themselves.128 6.1. Postponement of removal Enforcement of a removal (decision) can, however, be troublesome. Legal, practical, technical, or humanitarian reasons can result in removal not being allowed or even possible. In such a case, the Member State has to postpone it. Legal grounds for this can be found in Article 9 of the Return Directive. One of them is the non-refoulement principle of international customary law that has to be respected by the Member States.129 According to this principle, it is prohibited to expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where their life or freedom would be threatened on account of their race, religion, nationality, membership of a particular social group, or political opinion.130 Moreover, it is also prohibited to expel or return a refugee to a State, if this State would then expel or return an individual to a further territory where their life or freedom would be threatened (i.e. chain refoulement). All EU Member States must, as contracting parties to the European Convention of Human Rights (ECHR)131 and in accordance with its Article 3, protect each human being against torture or cruel, inhuman, or degrading treatment, as well as to other serious violations of human rights. In line with this, it is prohibited to return or remove an individual (including a rejected asylum-seeker) to a State where this would lead to a real risk of such serious violations. A further obligatory ground for postponement of removal is the suspensory effect of a remedy (for instance in the Czech Republic, Poland,132 Romania133) against a return or a removal decision, which is an already existing obligation of Member States under international law and the Charter of Fundamental Rights of the EU.134 While the Member States must postpone removal when it would violate the non-refoulement principle or in the case of a suspensory effect of a remedy, additional grounds listed in Article 9 of the Return Directive allow Member States to postpone removal for an appropriate period, again taking into account the specific circumstances of an individual case. Grounds mentioned are a third-country national’s physical state or mental capacity and technical reasons, such as lack of transport capacity or failure of the removal due to lack of identification.135 Compromised physical state or mental capacity count as health issues that can be twofold. Firstly, a person can have severe health issues that make them unwell and consequently unable to return to the country of origin. On the other hand, this can also mean that a person cannot obtain essential treatment in the country of origin, and in such circumstances, their removal could be a violation of Article 3 ECHR.136 Individuals suffering from severe illnesses can risk inhumane or degrading treatment or punishment because of the lack of access to treatment on return.137 According to collected data, removal can be postponed due to health issues in Belgium,138 Croatia, Cyprus, Finland, Germany,139 Hungary, Lithuania,140 the Netherlands,141 Spain, Slovenia, and Slovakia.142 Failure of removal due to a lack of transport capacity (Belgium, Croatia, Germany, Slovenia) or failure of removal due to lack of identification (Belgium, Croatia,143 the Czech Republic,144 Germany145) can also be found as a ground for postponement of removal in the legislations of Member States. This is due to the fact that perhaps there simply are no flights to the country of origin, or the functioning of the airports is affected by unsafe conditions. Lack of identification is also a practical obstacle, as asylum-seekers frequently arrive without genuine identity papers that prove their identity and their country of origin. They might even need to use a false document in order to flee their country of origin. Some are told by smugglers to destroy their identity documents.146 Lack of identification can also be connected to issues in obtaining travel documents.147 Difficulties may exist when obtaining travel documentation from the embassy of the person's country of origin. Some embassies can refuse or indefinitely delay issuing a travel document to returnees who do not have a valid passport. Lack of a relevant travel document (e.g. passport) is a ground for postponement in Cyprus, Finland, Lithuania, and Slovenia. Identity of the persons concerned could also be disputed by the embassies, when they demand unrealistic or unattainable proof of nationality.148 In some of these cases, rejected asylum-seekers cannot return or be removed due to various reasons beyond their control. The country of origin may perhaps not permit the forced return of individuals against their will and a person cannot be removed from the territory of their stay. The country of origin might also refuse to accept the concerned individual in general, and so removal needs to be postponed. This ground can be found in the Czech Republic (in practice), Germany, Lithuania, and Slovenia. An individual who is a stateless person cannot be returned or removed either. Moreover, social ties might be important for the postponement of the removal of a rejected asylum-seeker, for example in the case of a severe disease or death of a family member (Slovenia). In some cases, family links or other important ties with the host country may constitute legal barriers to the return or removal of the concerned individual “as it would result in an unduly harsh interruption of family life”.149 Respect for the right to family and private life is governed by the international human rights law (see point 7.3). Lastly, removal is postponed if it is necessary that the third-country national (e.g. a rejected asylum-seeker) cooperates in a procedure before a State body (Slovenia), or with a pre-trial institution or a court (as in Lithuania and Germany).150 6.2. Legal stay? In cases where the Return Directive requires that Member States postpone removal, the only obligation that is required of them (according to Article 14, paragraph 2 of the Return Directive) is to inform the concerned persons by written confirmation that the return decision will temporarily not be enforced.151 However, there is no obligation to issue a status granting document, for example a temporary residence permit.152 If concerned individuals cannot be returned or removed and simultaneously cannot obtain a residence permit in the Member State where they are living, they can be excluded from rights to health care, housing, education, and work. As a result, some Member States do issue permits for tolerated stay to persons who cannot be returned or removed. This is for example done in the Czech Republic (“vízum strpění”), Germany (“Duldung”), Romania (“Document de tolerat”),153 and Slovenia (“dovoljenje za začasno zadrževanje”). A temporary fixed term residence permit can be issued in Finland if a person cannot be removed due to health issues, or if the removal is in fact impossible to carry out.154 If a stay is legal – either on the ground of a permit for tolerated stay or a temporary residence permit – a permit is (in the above-mentioned Member States) strictly issued for as long as an obstacle to removal exists. When the reason ceases to exist, permission for a tolerated stay will not be renewed, or will be revoked. The obligation to leave the territory of the respective Member State does not cease to exist, but is therefore merely postponed (the Czech Republic, Germany,155 Romania, and Slovenia156). With regard to individuals who cannot be removed from the territory of a Member State, a study of the European Commission157 documents the divergences that exist at the national level concerning the rights granted to them. Given the enormity of these divergences, it may be concluded that essentially a different approach is adopted in each EU Member State. 7. REGULARISATION Another alternative that is important for rejected asylum-seekers and has the opposite consequences of a return is their regularisation. Regularisation has been a topic that has been, as one might say, neglected or has received less attention.158 There is no universal definition of the term regularisation. It can be described and thought of as a status adjustment in the continuum between an irregular and regular legal status159 with the objective of granting a legal status to persons who lack it.160 This is also permitted in the Return Directive, as Member States may at any moment decide to grant an autonomous residence permit or other authorisation offering a right to stay for compassionate, humanitarian, or other reasons to third-country nationals staying illegally on their territory.161 In particular, regularisation helps to address the state of insecurity and ‘limbo’ that rejected asylum-seekers find themselves in. Fundamentally, this can be achieved in two different ways. Regularisation can be divided into regularisation programmes and regularisation mechanisms. While the first are often (one-off) humanitarian programmes that continue for a limited period of time and target specific groups of irregular migrants,162 the latter are permanent provisions built into immigration legislation allowing the regularisation of individuals as opposed to time-limited programmes.163 7.1. Regularisation programmes A “regularisation programme” is defined by the EU Commission funded REGINE study “as a specific regularisation procedure which does not form part of the regular migration policy framework, runs for a limited period of time and targets specific categories of non-nationals in an irregular situation”.164 In practice, several different types of regularisation programmes targeting irregular migrants have been tried. They can be labelled as exceptional humanitarian programmes due to health reasons,165 one-off or one-shot programmes, family reunification programmes,166 permanent or continuous programmes, and earned167 regularisation programmes.168 Member States can regularise individuals in several different ways, either by tolerating the stay of irregular migrants (including rejected asylum-seekers) de facto or formally, or issuing a temporary or permanent residence permit. Sometimes a tolerated stay may with time also lead to a residence permit.169 It is important to note that granting legal status and the ability of the addressee to maintain it are linked to the eligibility requirements, political objectives, target populations, and programmatic details of the regularisation programme.170 If the eligibility requirements are highly demanding, there is a high probability that a person who had been granted a legal status will with time fall back into irregularity. Reversion of an undocumented status is not the only challenge arising out of regularisation programmes. Others, such as a lack of administrative preparedness, lack of publicity, overly strict requirements, and application fraud need to be taken into account.171 As is the case with every political or legal issue, pros and cons of a specific measure are always weighed against each other. Regularisation (programme or mechanism) has positive and negative practical and theoretical effects. A solution for human rights and human dignity, a decrease of the likelihood of the exploitation of persons concerned, a reduction of the size of the underground economy, a positive impact on tax revenues and the collection of social security contributions, a solution for the EU hungry labour market,172 and the reduction of delinquency are viewed as possible positive effects of regularisation. On the other hand, the negative effects (or the fear of negative effects) of regularisation impose a line of thought against regularisation. An irregular migrant might not be able to provide for themselves and their family and will require social assistance,173 or they might not remain in the Member State granting them legal status174 and move to another Member State.175 Along with that, the creation of a “pull effect”176 and the question of whether the consequence of breaking the law should be rewarded177 are additional negative effects to be considered. Despite all of this, several examples of regularisation programmes targeting specifically rejected asylum-seekers have existed in the last two decades, namely humanitarian-based regularisation programmes in Luxembourg (2001), the Netherlands (2003),178 Sweden (2006), and Germany (1999 − for those who entered before 1993).179 These may be an indicator that such programmes are first of all possible and humanitarian. Even the presented and presumed numbers regarding (rejected, present, and future)180 asylum-seekers should not discourage Member States or EU institutions from establishing or agreeing upon a regularisation programme. It needs to be stressed, however, that the analysed Member States have not developed a recent regularisation policy for those staying on their territory illegally.181 An example of such a policy occurred a few years ago (and is therefore not recent) in the Netherlands. There was a regularisation policy programme kinderpardon (i.e. children amnesty). The scheme allowed for a residence permit to be granted to rejected asylum-seekers who had lived in the Netherlands and claimed asylum for at least five years before their 18th birthday, were younger than 21 years of age at the time of the agreement (29 October 2012), and did not leave the central government’s supervision for more than three months. Due to the harsh restrictions and debatable legal interpretations, a broader and more lenient interpretation of the law was desired by several mayors and non-governmental organisations (NGOs) in the Netherlands.182 7.2. Regularisation mechanisms The second option for regularisation is regularisation mechanisms. These are permanent provisions built into immigration law that address those who do not qualify for repatriation to their country of origin or asylum.183 The criteria of both regularisation programmes and regularisation mechanisms are similar. They often include requirements for the length and continuity of residence, current employment or proof of future employment, and issues of humanitarian concern, such as the undue length of asylum procedures, the inability to return to the country of origin, or health and family reasons.184 Even though Member States generally do not wish to regularise illegally staying rejected asylum-seekers, certain solutions or options exist for rejected asylum-seekers to regularise their stay in the Member States of the EU. The term “regularization” in the options presented will mean that the rejected asylum-seeker can obtain a residence permit, either temporary or permanent. Tolerated stay is therefore excluded from the following options, as this generally means that a return or removal has been postponed, although a residence permit is not granted to the individual. The connection to the persons whose stay is tolerated, however, needs to be made. Reasons for tolerated stay are numerous and have been presented in point 6.1. Even though some reasons usually exist merely for a shorter period of time (like health issues or lack of transport capacity), others can in practice exist for a very long period of time (non-refoulement as an example). In cases where the tolerated stay of a rejected asylum-seeker lasts for several years, Member States may deem it sufficient to grant a residence permit to such an individual. This can be a consequence of applying the non-refoulement principle, delays in the proceedings on international protection, the creation of labour and social roots, the need to cooperate in a criminal law case,185 or due to medical or humanitarian (i.e. other than medical) grounds. An example of applying the non-refoulement principle can be found in Slovenian legislation. Foreigners who had a permit of stay for at least 24 months because they could not be removed due to the non-refoulement principle, and whose identity is indisputable, can obtain a residence permit for a period of two years.186 With regard to delays in proceedings on international protection, an example is present in the legislation of the Czech Republic. In the case a person staying in the Czech Republic on the basis of a legal temporary residence permit for a period of four years, and provided their international proceedings took at least two years and there are strong humanitarian reasons accompanying their case, permanent residence may be granted to said individual.187 An example based on the creation of labour and social roots exists in Spain as an exceptional kind of individual regularisation. It may be granted in consideration of various criteria, such as whether an individual is a citizen of the EU, EEA, or Switzerland; has a criminal record (in Spain and in former countries of residence); is prohibited from entering Spain; has resided in Spain for a minimum of three continuous years (two years if there is an employment relationship that has lasted for at least 6 months), and whether they have a work contract and family ties (a spouse, registered partner, ascendants, or descendants in the first degree), or a report attesting to their social integration (issued by the Autonomous Community of habitual residence or Municipality, if authorized by the Autonomous Community).188 Lastly, in Belgium, an individual can be regularised due to medical grounds if the disease constitutes a present and real risk to the life or physical integrity of the individual, or a real risk of inhumane or degrading treatment, due to a lack of adequate treatment in the country of origin189; or due to humanitarian grounds (i.e. other than medical), if there are exceptional circumstances to justify that the request is submitted in Belgium and the grounds sufficiently justify a right to stay.190 7.3. Regularisation as a human right? One of the difficulties of the ongoing refugee crisis – due to the vast amounts of asylum applications – are possible procedural delays before decisions are issued. In practice, these can even extend over a period of several years. In such cases, it is not unreasonable to expect that asylum-seekers will (with the lapse of time) successfully integrate into the societies of the respective Member States, marry, and/or have children.191 These circumstances quite possibly may be relevant (from a human rights perspective) for those asylum-seekers who are rejected and are the subjects of return proceedings. According to Article 8 of the ECHR, everyone has the right to respect for their private and family life, their home, and their correspondence. However, it is questionable as to what extent this human right can be conferred upon rejected asylum-seekers, and if it can be successfully invoked. It is established in the case law of the European Court of Human Rights (ECtHR), that grounds for the protection of a foreigner’s right to family life192 can be found in the “principle of evolutive or dynamic interpretation”.193 Protection under Article 8 ECHR has been extended even further to cover long-term residence status, including a potential right to regularise illegal stay.194 This is evident in the Judgment Sisojeva et al. v Latvia,195 where the ECtHR stated that while the chief object of Article 8 is to protect the individual against arbitrary interference from the public authorities, it does not merely compel the State to abstain from such interference. In addition to this negative undertaking, there may be positive obligations inherent in effective respect for private or family life. To put it differently, refraining from deportation does not serve as a sufficient means of protecting and affording – the latter needs to be afforded without interference. A couple of cases confirm that the ECtHR, albeit exceptionally,196 protects the illegal residence status under the heading of “private” life, and high contracting parties might be obliged to regularise their stay.197 Essential to this is the interpretation by the ECtHR that a person’s private life is characterised by the “network of personal, social and economic relations that make up the private life of every human being”.198 Although “cases decided so far have concerned extended periods of residence over many years, if not decades”,199 it is not impossible to imagine that rejected asylum-seekers without a legal status (who aim to be regularised) could develop this network of personal, social, and economic relations in order to invoke the right to private life. The protective reach could also be additionally expanded with the dynamic interpretation. Nevertheless, it needs to be stressed that the regulation of the entry and stay of foreigners has traditionally been a matter of the States’ sovereignty, and conferring human rights on foreigners poses a direct challenge to this meaning.200 Moreover, cross-reference to the conditions of long-term residency, pursuant to Article 4 of the Directive can be made. Third-country nationals are protected due to their entitlement to a long-term residency status when they have resided legally and continuously within the territory of a Member State for five years immediately prior to the submission of the relevant application. Considering the fact that the Long-Term Residents Directive does not apply to rejected asylum-seekers (as they do not have a residence permit), it is questionable how much time has to pass before illegal residence is protected. Although it is not protected under the Long-Term Residents Directive, it might be protected in some cases under the ECHR provisions. When comparing the two groups of persons, the law should not equate or favour illegally staying persons with those who stay legally. The amount of time for the protection of illegal residence should therefore theoretically be much longer, while obviously taking into account other material criteria for the establishment of a “network of personal, social and economic relations that make up the private life of every human being”. 8. CONCLUDING THOUGHTS Even though the EU has adopted common standards in the Return Directive, diversities still exist among the examined Member States. These are procedural both in a narrow sense, such as the length of voluntary return periods, issuance of return or removal decisions together or separately, etc., and in a broader sense, such as reasons for the postponement of return or removal, and statuses that arise out of postponement. The latter differ significantly between examined Member States. Rejected asylum-seekers who do not leave and cannot be removed from the territory of a Member State can be either left in “limbo” situations, de facto tolerated, officially tolerated, or even receive residence permits. Due to differences in statuses, the scope of rights attached to these statuses differs not only in a horizontal Member State to Member State comparison, but also in a vertical single Member State analysis when a rejected asylum-seeker has his status adjusted. The scope of rights attached to these statuses is unclear (ambiguous), and conclusions are more troublesome due to the fact that Member States very rarely distinguish between rejected asylum-seekers and other persons illegally staying on their respective territories. From a legal perspective, additional amendments, with the hope of bringing clarity to the mentioned issues, are needed and welcome, thus will hopefully follow in the upcoming years. In conclusion, it also needs to be highlighted that very few regularisation programmes and mechanisms exist for rejected asylum-seekers. This can be a serious legal and practical obstacle for those who stay (i.e. are tolerated), reside, or remain on the territory of a Member State for a longer period of time. In this respect, a distinction in national legislations should be made between those who themselves do not wish to return or be removed, and those, who cannot do so, due to reasons outside of their control. The authors would like to thank all the respondents, who have invaluably helped with the collection of data by filling out the questionnaires and their submission of further remarks on how to improve our contribution. Without them this research would not have been possible. Special gratitude goes to Siemen Buttiëns, Goranka Lalić Novak, Anamarija Kovac, Constantina Economou, Pavel Pořízek, David Kryska, Jaana Palander, Elina Pirjatanniemi, Jean-Philippe Lhernould, Michael Schlegelmilch, Lars Hillmann, Chrysafo Tsouka, Antigoni-Maria Spyropoulou, Danai Angeli, Antal Örkény, Salvatore Fabio Nicolosi, Laurynas Biekša, Ilona Ivašauskaité, Viola Bex-Reimert, Veronika Flegar, Barbara Kowalczyk, Mihaela Matei, Mária Srebalová, Dolores Carrascosa Bermejo, and Carlos García de Cortázar. Footnotes 1 M. Vanderbruggen et al., “Factsheet: Unreturnable Migrants in Detention, in EU Law and Policy”, Supplement to the Report: Point of No Return, The Futile Detention of Unreturnable Migrants, Jan. 2014, 1, available at: http://pointofnoreturn.eu/wp-content/uploads/2013/12/PONR_Factsheet_EU_2_HR.pdf (last visited 21 Nov. 2017). 2 Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection (recast), OJ L 180/60, 29 Jun. 2013. 3 Directive 2013/33/EU of the European Parliament and of the Council of 26 June 2013 laying down standards for the reception of applicants for international protection (recast), OJ L 180/96, 29 Jun. 2013. 4 Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection for a uniform status for refugees or for persons eligible for subsidiary protection and for the content of the protection granted (recast), OJ L 337/9, 20 Dec. 2011. 5 Council Directive No. 2001/55/EC of 20 July 2001 on minimum standards for giving temporary protection in the event of a mass influx of displaced persons and on measures promoting a balance of efforts between Member States in receiving such persons and bearing the consequences instead, OJ L 212, 7 Aug. 2001. 6 Regulation 604/2013/EU of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person (recast), OJ L 180/31, 29 Jun. 2013. 7 Regulation 603/2013/EU of the European Parliament and of the Council of 26 June 2013 on the establishment of “Eurodac” for the comparison of fingerprints for the effective application of Regulation No. 604/2013/EU establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person and on requests for the comparison with Eurodac data by Member States’ law enforcement authorities and Europol for law enforcement purposes and amending Regulation No. 1077/2011/EU establishing a European Agency for the operational management of large-scale IT systems in the area of freedom, security and justice, OJ L 180, 29 Jun. 2013. 8 Council Directive 2009/50/EC of 25 May 2009 on the condition of entry and residence of third-country nationals for the purpose of highly qualified employment, OJ L 155, 18 Jun. 2009. 9 Directive 2011/98/EU of the European Parliament and of the Council of 13 December 2011 on a single application procedure for a single permit for third-country nationals to reside and work in the territory of a Member State and on a common set of rights for third-country workers legally residing in a Member State, OJ L 343, 23 Dec. 2011. 10 Council Directive 2003/86/EC of 22 September 2003 on the right to family reunification, OJ L 251/12, 3 Oct. 2003. 11 Council Directive 2003/109/EC of 25 November 2003 concerning the status of third-country nationals who are long-term residents, OJ L 16/44, 23 Jan. 2004; and Directive 2011/51/EU of the European Parliament and of the Council of 11 May 2011 amending Council Directive 2003/109/EC to extend its scope to beneficiaries of international protection, OJ L 132/1, 19 May 2011. 12 Directive 2011/36/EU of the European Parliament and of the Council of 5 April 2011 on preventing and combating trafficking in human beings and protecting its victims, replacing Council Framework Decision 2002/629/JHA, OJ L 101/1, 15 Apr. 2011. 13 Regulation 562/2006/EC of the European Parliament and of the Council of 15 March 2006 establishing a Community Code on rules governing the movement of persons across borders, OJ L 105/1, 13 Apr. 2006. 14 Vanderbruggen et al., “Factsheet”, 1. 15 Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals, OJ L 348/98, 24 Dec. 2008. 16 It is highly likely that the figure of 1.2 million is fundamentally inaccurate, thus it may even be argued that Eurostat is applying incorrect numbers. Namely, in 2015 Germany alone was faced with a total of 890,000 asylum-seekers, which greatly exceeds the number (i.e. 441,000) recorded by Eurostat (while the reported number was even 1.1 million as some persons had multiple entries in the EASY system). See German Federal Ministry of Interior, “890,000 Asylum-Seekers in Year 2015”, Press Release, 30 Sep. 2015, available at: http://www.bmi.bund.de/SharedDocs/Pressemitteilungen/DE/2016/09/asylsuchende-2015.html (last visited 21 Nov. 2017). 17 Eurostat, “Record Number of Over 1.2 Million First Time Asylum Seekers Registered in 2015”, News Release, 4 Mar. 2016, available at: http://ec.europa.eu/eurostat/documents/2995521/7203832/3-04032016-AP-EN.pdf (last visited 21 Nov. 2017). 18 Eurostat, “1.2 Million First Time Asylum Seekers Registered in the EU-28 in 2016”, News Release, 16 Mar. 2017, available at: http://ec.europa.eu/eurostat/documents/2995521/7921609/3-16032017-BP-EN.pdf/e5fa98bb-5d9d-4297-9168-d07c67d1c9e1 (last visited 21 Nov. 2017). 19 Eurostat, “First Time Asylum Applicants in the EU-28 by Citizenship, Q1 2016 – Q1 2017 Update”, Asylum Quarterly Report, 15 Jun. 2017, available at: http://ec.europa.eu/eurostat/statistics-explained/index.php/File:First_time_asylum_applicants_in_the_EU-28_by_citizenship,_Q1_2016_%E2%80%93_Q1_2017_update.png (last visited 21 Nov. 2017). 20 Eurostat, “Asylum Statistics”, 13 Mar. 2017, available at: http://ec.europa.eu/eurostat/statistics-explained/index.php/Asylum_statistics (last visited Jul. 2017). 21 Eurostat, “First Instance Decisions by Outcome and Recognition Rates, 1st Quarter 2017”, Asylum Quarterly Report, available at: http://ec.europa.eu/eurostat/statistics-explained/index.php/File:First_instance_decisions_by_outcome_and_recognition_rates,_1st_quarter_2017.png (last visited 21 Nov. 2017). 22 Belgium, Croatia, Cyprus, the Czech Republic, Finland, France, Greece, Germany, Hungary, Italy, Lithuania, the Netherlands, Poland, Romania, Slovakia, Slovenia, and Spain. 23 List of respondents: Belgium: Siemen Buttiëns, Research assistant, KU Leuven; Croatia: Dr Goranka Lalić Novak, Assistant Professor, University of Zagreb & Anamarija Kovac, LL.M, Croatian Law Centre; Cyprus: Constantina Economou, LL.M, George Z. Georgiou & Associates LLC; The Czech Republic: Dr Pavel Pořízek, Head of the Office of the Public Defender of Rights (Ombudsman) & Dr David Kryska, Department of Administrative Law and Administrative Science, Charles University in Prague; Finland: Jaana Palander, Lecturer, University of Eastern Finland & Dr Elina Pirjatanniemi, Professor, Director of the Institute for Human Rights, Åbo Akademi University; France: Dr Jean-Philippe Lhernould, Professor, University of Poitiers; Germany: Michael Schlegelmilch, Research Associate, Max Planck Institute for Social Law and Social Policy & Lars Hillmann, Research Associate, University of Bayreuth; Greece: Dr Chrysafo Tsouka, Associate Professor, National and Kapodistrian University of Athens Law School & Antigoni-Maria Spyropoulou, LL.M, Attorney at Law, Indicated Member from the UNHCR at the Appeals Committees of Asylum & Dr Danai Angeli, Lawyer, Athens Bar Association; Hungary: Dr Antal Örkény, Professor, Eotvos Loránd University of Budapest; Italy: Dr Salvatore Fabio Nicolosi, Postdoctoral Researcher, Human Rights Centre Ghent University and EU Fulbright-Schuman Scholar, Center for Comparative and International Law, University of Michigan Law School; Lithuania: Dr Laurynas Biekša, Associate Professor, Mykolas Romeris University and Ilona Ivašauskaité, PhD candidate, Mykolas Romeris University; The Netherlands: Dr Viola Bex-Reimert, Lecturer, University of Groningen & Veronika Flegar, PhD candidate, University of Groningen; Poland: Dr Barbara Kowalczyk, Faculty of Law, Administration and Economics, University of Wroclaw; Romania: Mihaela Matei, LL.M; Slovakia: Dr Mária Srebalová, Faculty of Law, Department of Administrative and Environmental Law, Comenius University of Bratislava; Slovenia: Dr Grega Strban, Professor, University of Ljubljana & Primož Rataj, Assistant, University of Ljubljana; Spain: Dr Dolores Carrascosa Bermejo, Professor, Comillas Pontifical University of Madrid and Carlos García de Cortázar. 24 Eurostat, “Number of (non-EU) Asylum Seekers in the EU and EFTA Member States, 2014 and 2015 (Thousands of First Time Applicants)”, Eurostat, undated, available at: http://ec.europa.eu/eurostat/statistics-explained/index.php/File:Number_of_(non-EU)_asylum_seekers_in_the_EU_and_EFTA_Member_States,_2014_and_2015_(thousands_of_first_time_applicants)_YB16.png (last visited 11 Nov. 2017). 25 International Organisation for Migration (IOM), Key Migration Terms, webpage, undated, available at: http://www.iom.int/key-migration-terms (last visited Nov. 2016). 26 See Art. 2(b) of the Reception Conditions Directive. 27 Ibid. 28 Ibid. 29 Persons who reside in a State due to their employment but had become unemployed, etc. 30 I. Gordon, K. Scanlon, T. Travers & C. Whitehead, Economic Impact on the London and UK Economy of an Earned Regularisation of Irregular Migrants to the UK, Irregular Migrants Report, London, Greater London Authority, May 2009, 4–5, available at: https://www.london.gov.uk/sites/default/files/gla_migrate_files_destination/irregular-migrants-report.pdf (last visited 21 Nov. 2017). An additional remark needs to be made. Rejected asylum-seekers in some Member States (Germany for example) have the right to stay for a short period (mostly 30 days), but they are in essence refused a continuing right to remain (after the short period has ended). Please see Section 5.2 for more detail. 31 Asylum application means an application for international protection. 32 Art. 32(1) of the Act on International and Temporary Protection (Zakon o međunarodnoj i privremenoj zaštiti), Official Gazette of Croatia, No. 70/15. 33 Art. 32 in connection with Art. 2, point 7 of the International Protection Act (Zakon o mednarodni zaščiti), the Official Gazette of the Republic of Slovenia, No. 22/16. 34 The Ministry of Interior issues a decision on the basis of proposals from the inter-ministerial committee on Asylum and Refugees (Comisión Interministerial de Asilo y Refugio). See Art. 24.2. of Law No. 12/2009 regulating the right to asylum and subsidiary protection (Ley reguladora del derecho de asilo y de la protección subsidiaria), 30 Oct. 2009. 35 The Asylum Service of the Republic of Cyprus, available at: http://www.moi.gov.cy/moi/asylum/asylum.nsf/DMLindex_en/DMLindex_en?OpenDocument# (last visited Nov. 2016). 36 Section 8 letter a) of the Asylum Act (Zákon o azylu) of the Czech Republic No. 325/1999 Coll., 11th Nov. 1999, with amendments. Reportedly the responsible internal organisational unit of the Ministry of Interior is the Department for Asylum and Migration Policy. 37 The Finnish Immigration Service, Art. 116 of the Aliens Act (Ulkomaalaislaki) No. 301/2004 with amendments. 38 The Asylum Service, established under Law No. 3907/2011 on the establishment of an Asylum Service and a First Reception Service, transposition into Greek legislation of Directive 2008/115/EC “on common standards and procedures in Member States for returning illegally staying third-country nationals” and other provisions, 26 Jan. 2011, Art. 1, point 2b. 39 The Office of Immigration and Nationality (OIN), available at: http://www.bmbah.hu/index.php?option=com_k2&view=item&layout=item&id=391&Itemid=666&lang=en (last visited 21 Nov. 2017). 40 Territorial Commissions for the Recognition of International Protection and Sub-commissions located throughout the national territory. 41 Reportedly the Migration Department. 42 Head of the Office for Foreigners. Information by the Head of the Office for Foreigners, Warsaw, Mar. 2015, 1, available at: http://udsc.gov.pl/wp-content/uploads/2014/12/Information-by-the-Head-of-the-Office-for-Foreigners-14.pdf (last visited 21 Nov. 2017). 43 Romanian General Inspectorate for Immigration (IGI), which is the competent body responsible for conducting interviews, analysing the reasons set forth, and decision-making regarding the asylum applications. Source available at: http://igi.mai.gov.ro/detalii/pagina/en/Decision-communication/102 (last visited Nov. 2016). 44 The Migration Office according to The Organisation of Asylum and Migration Policies Factsheet: Slovak Republic, European Migration Network Reports, Jul. 2014, available at: http://ec.europa.eu/dgs/home-affairs/what-we-do/networks/european_migration_network/reports/docs/emn-studies/asylum-migration/24a.slovak_republic_factsheet_update_august_2014_en_version.pdf (last visited Nov. 2016). 45 The Immigration and Naturalisation Service (IND), available at: https://ind.nl/en/individuals/residence-wizard/asylum (last visited 21 Nov. 2017). The decisions are formally made by the Minister of Security and Justice. 46 Section 5, para. 1 of Asylum Act (Asylgesetz), Federal Law Gazette I, p. 1798, 2 Sep. 2008, with amendments. 47 Art. 57(6) of Law of 15 Dec. 1980 relating to the access to the territory, residence, establishment, and removal of foreigners (Wet van betreffende de toegang tot het grondgebied, het verblijf, de vestiging en de verwijdering van vreemdelingen / Loi portant sur l’acces au territoire, le séjour, l’éloignement des étrangers), with amendments. It is a service within the Federal Public Services Home Affairs. 48 Rejected asylum-seekers can appeal the decision to the Appeals Authority according to Law No. 3907/2011, Art. 3(1), and Presidential Decree 113/2013, Art. 34, according to Greek Council for Refugees, Regular Procedure in Greece, Asylum Information Database, undated, available at: http://www.asylumineurope.org/reports/country/greece/asylum-procedure/procedures/regular-procedure (last visited 21 Nov. 2017). 49 The second instance administrative body competent to handle appeals against first instance negative decisions is the Refugee Board, according to the Helsinki Foundation for Human Rights, Regular Procedure in Poland, Asylum Information Database, undated, available at: http://www.asylumineurope.org/reports/country/poland/asylum-procedure/procedures/regular-procedure (last visited 21 Nov. 2017). 50 The Council for Alien Law Litigation, which has exclusive jurisdiction to hear appeals against individual decisions concerning the access to the territory, residence, establishment, and removal of foreigners. 51 Art. 32(2) of the Act on International and Temporary Protection. There are four Administrative Courts in Croatia (in Zagreb, Rijeka, Split, and Osijek). 52 Regional Courts and the Municipal Court in Prague. See s. 32 of the Asylum Act No. 325/1999. 53 The Administrative Court in Helsinki according to s. 193(1) of the Aliens Act No. 301/2004. 54 The Administrative Court of Appeals according to the Greek Council for Refugees, Regular Procedure in Greece. 55 Vilnius Regional Administrative Court. A. Sipavičiene, Decision Making in Asylum Cases and Appeal Process, IOM, Vilnius, 2013, 11, available at: http://www.iom.lt/images/publikacijos/failai/1427878229_2TMODecision%20making%20in%20asylum%20cases%20and%20appeal%20process.%20Situation,%20reelvant%20issues%20and%20reccomendations%20for%20Lithuania.pdf (last visited 21 Nov. 2017). 56 Voivodeship Administrative Court according to the Helsinki Foundation for Human Rights, Regular Procedure in Poland. 57 Art. 54 of the Law on Asylum (Legea priving azilui) No. 122/2006, Official Gazette of Romania, No. 428, 18 May 2006 with modifications. 58 Art. 70(1) of the International Protection Act. 59 This is the case for all administrative proceedings in Slovakia as there is no specialised branch of administrative courts. On the other hand, a specific section of the Slovak Code of civil procedure governs the review of administrative decisions. This section is also applicable to review of decisions in asylum cases. 60 The Supreme Administrative Court has to grant leave to appeal in Finland. Source: Finnish Immigration Service, Appeal to Administrative Court, webpage, undated, available at: http://www.migri.fi/asylum_in_finland/applying_for_asylum/decision/appeal (last visited 21 Nov. 2017). Reportedly, this is done very rarely in practice and the decision of the Helsinki Administrative Court is usually the final decision. 61 An appeal against the first instance courts’ decision is also possible in some cases according to s 78, subsection 3 of the Asylum Act, Federal Law Gazette I, p. 1798, due to fundamental importance of the case, deviation from previous decisions or due to procedural deficiency. 62 Poland is the only Member State with four possible instances issuing a decision or judgment – two instances in administrative proceedings and two instances of judicial review according to Helsinki Foundation for Human Rights, Regular Procedure in Poland. 63 Reportedly, the Supreme Court in Cyprus does not examine the essence of the claim but the legality of the decision. 64 The judgment can be remanded only due to infringement of the law or of substantial procedural requirements, however, the Belgian Council of State does not pronounce on the merits of the case. In other words, all it does is examine whether the ruling was made in accordance with the law and therefore cannot grant refugee or subsidiary protection status. 65 Dutch Council of State (Afdeling Bestuursrechtspraak van de Raad van State). 66 A rejected asylum-seeker is (usually) first granted a period within which he has to leave (i.e. voluntary return period – please see Section 5.2). After this period his residence is “illegal”. 67 Hereinafter male version will be used neutrally for both sexes. 68 Art. 6(4) of the Return Directive. 69 After an asylum procedure a person receives an exit visa (and also may apply for repatriation under the Asylum Act No. 325/1999, which is independent of the voluntary return period in the Return Directive). Only if a rejected asylum-seeker does not respect the time limit in his exit visa, does he fall under the rules of the Return Directive. 70 The return decision is issued together with the rejection of an application, unless special reasons have arisen, serving as grounds for not adopting a decision on removing the applicant from the country. See Art. 98(4) of the Aliens Act no. 301/2004. 71 Reportedly, this would only apply in the case that the person concerned fulfils the conditions for staying in Spain for humanitarian reasons. 72 Art. 303 of the Act on Foreigners (Ustawa o cudzoziemcach, Official Gazette of Poland, No. 1650, 12 Dec. 2013) stipulates various grounds for it. Interestingly, in Poland, a person is ex lege obligated to leave the relevant state territory within 30 days after the administrative decision refusing to grant refugee status or subsidiary protection has become final and binding according to Art. 299(6) of the Act on Foreigners. Only if a person has not left the territory in this time frame, an imposed return decision is issued, after which an addressee has a period of 15–30 days for voluntary return according to Art. 315(1). 73 This is presumably the case in many other Member States. 74 Art. 7(1) of the Return Directive. 75 Art. 74(14) of the Law of 15 Dec. 1980 relating to the access to the territory, residence, establishment, and removal of foreigners. The practice appears to be to grant them a full 30 days. During the time limit for voluntary departure a rejected asylum-seeker is not staying legally on the Belgian territory, however, no coercive measures can be used to enforce the removal. 76 Art. 112(5) of the Law on Foreigners (Zakon o strancima), Official Gazette of Croatia No. 130/11, 74/13. 77 Section 147(a) of the Aliens Act No. 301/2004. According to correspondent Jaana Palander, Guidance of the Finnish Immigration Service states that 30 days is the principal rule (MIG 215-542). 78 Art. 14 of the Legislative Decree of 25 Jul. 1998, No. 286 on “the Consolidated Act of Provisions concerning immigration and the condition of third-country nationals”. 79 Art. 127(1) of the Law on the Legal Status of Aliens (Įstatymas dėl užsieniečių teisinės padeties) No. IX-2206 of Vilnius, 29 Apr. 2004, with amendments. 80 Art. 83 of the Act on Residence of Aliens (Zákon o pobyte cudzincov) No. 404/2011 Coll., of 21 Oct. 2011, with amendments. 81 Art. 70 of Law No. 122/2006 and Art. 82 of the Government Emergency Ordinance No. 194/2002. 82 The average period for voluntary return reportedly is 30 days, which means that a longer period can be stipulated in administrative decisions. 83 A one-month period in principle. 84 According to s 50(2) of the Residence Act (Aufenthaltgesetz), Federal Law Gazette I, p. 1950, 30 Jul. 2004, with amendments) an illegally staying person is required to leave forthwith or, if a period has been allowed for departure, by the end of this period. Forthwith criteria is reportedly dealt with in practice as a 30-day period. 85 A voluntary return period is 28 days, s 62(1) of the Aliens Act (Vreemdelingenwet) 2000, 1 Apr. 2001, with amendments. 86 Ibid., s 50a, para. 4. 87 For the possibility of an extension of a voluntary period, refer to Section 5.5. 88 Art. 60(3) in connection with Art. 67 of the Aliens Act (Zakon o tujcih-ZTuj-2), the Official Gazette of the Republic of Slovenia, No. 50/2011, last amended 16/2017. 89 Art. 147 of the Aliens Act No. 301/2004. 90 Art. 329 of the Act on Foreigners. 91 Art. 60(3) in connection with Art. 67 of the Aliens Act. 92 According to correspondent Elina Pirjatanniemi, the applicant may be removed from the territory of Finland within seven days after the service of the decision if the application has been found to be manifestly unfounded. 93 A case of the Court of Justice of the European Union (CJEU) concerning a risk to public policy is Zh. and O., Judgment, C-554/13, 11 Jun. 2015. The CJEU ruled that Art. 7(4) of the Return Directive precludes a national practice, whereby an illegally staying third-country national is deemed to pose a risk to public policy on the sole ground that national is suspected, or has been criminally convicted, of an act punishable as a criminal offence under national law. Other factors may be relevant in the assessment of whether he poses a risk to public policy, such as the nature and seriousness of that act, the time which has elapsed since it was committed and the fact that concerned national was in the process of leaving the territory of that Member State when he was detained by the national authorities. 94 If there is a risk of absconding, manifestly ill-founded decision or a threat to public or national security, no voluntary period or a period of less than seven days is granted. Art. 22(4) of Law No. 3907/2011. 95 Art. 62(2) of the Aliens Act. 96 Art. 7(4) of Return Directive. 97 Art. 3(7) of Return Directive. 98 Interestingly enough, the Czech Supreme Administrative Court filed a request for a preliminary ruling to the Court of Justice of the European Union (Policie České republiky v. Salah Al Chodor and others, pending Case C-528/15, lodged on 7 Oct. 2015) as to whether lack of objective criteria for assessment of a significant risk of absconding of a foreign national renders detention under Art. 28(2) of Regulation No. 604/2013/EU (Dublin III) inapplicable. The wording of the provision is very similar to the one in the Return Directive. For the Court’s judgment, see: Policie České republiky v. Salah Al Chodor and others, judgment, C-528/15, 15 March 2017. 99 Art. 68 of the Aliens Act. 100 Other milder circumstances are also mentioned that present a risk of absconding, such as illegal entry of a foreigner on Slovenian territory; overstay of a legal stay of less than 30 days; lack of any accommodation options in Slovenia and other milder circumstances based on an individual assessment. 101 Art. 315(3) of the Act on Foreigners. 102 Council for Alien Law Litigation (Raad voor Vreemdelingen-betwistigen), Judgment, No. 126.698, 3 Jul. 2014. 103 Art. 7(3) of the Return Directive. For such obligations under the Reception Conditions Directive (recast) see P. de Bruycker (ed.), A. Bloomfield, E. Tsourdi & J. Pétin, Alternatives to Immigration and Asylum Detention in the EU, MADE REAL report, Jan. 2015, 87-103, available at: http://odysseus-network.eu/publications/alternatives-to-detention-2015/ (last visited 21 Nov. 2017). 104 It is only possible when a removal decision is issued and there is a present risk of absconding, which has to be determined individually. 105 Art. 317 of the Act on Foreigners. 106 Art. 73(6) of the Aliens Act. 107 Art. 62(3) of the Aliens Act. 108 Art. 7(2) of the Return Directive. 109 Reportedly the duration of the voluntary departure period can be extended due to health problems or a court pending case, in which the rejected asylum-seeker wants to appear before the court in person. Pregnant women are, however, not subject to return procedures (i.e. the return decision is subject to suspension) throughout their pregnancy and for 6 months after delivery. The same applies to the elderly. Arts 22, 24(2) and 41 of the Law No. 3907/2011. 110 In Lithuania, it is reportedly extended if the foreigner’s child requires two weeks in order to finish school. The existence of children attending school and being close to finishing it is also a ground for extension in the Czech Republic. 111 Art. 74(14) of the Law relating to the access to the territory, residence, establishment, and removal of foreigners. To obtain an extension, the applicant must submit a motivated request to the Immigration Office. 112 Art. 316 of the Act on Foreigners. 113 All circumstances mentioned – the length of stay, health problems, the existence of children attending school, or the existence of other family, social, or economic ties to the territory of Lithuania – are taken into account when a return decision is issued. 114 Art. 147(a) of the Aliens Act. Reportedly, based on the guidance of the Immigration Service, these special reasons include, but are not limited to, a child being close to completing a schoolyear (MIG-215-542). 115 Proof that the foreigner (e.g. rejected asylum-seeker) has sufficient financial means is also required. Art. 24(2) of the Royal Decree 557/2011 (on the Implementation Rules to the Immigration Act). 116 So called “mandatory prolongation” according to Art. 74(14) of the Law relating to the access to the territory, residence, establishment, and removal of foreigners. 117 Reportedly this is the practice in some counties. 118 Art. 6.3(1) of the Aliens Regulation (Vorschrift Vreemdelingen) 2000. 119 Art. 112(4) of the Law on Foreigners. 120 90 days according to Art. 6.3(2) of the Aliens Regulation. 121 Please refer to Section 5.3. 122 Art. 8(1) of the Return Directive. 123 Art. 74(14) of the Law relating to the access to the territory, residence, establishment, and removal of foreigners. 124 Art. 116 of the Law on Foreigners. 125 Art. 70 of the Law No. 122/2006. 126 Art. 69(1) of the Aliens Act. 127 See M. Schieffer, “Directive 2008/115/EC of the European Parliament and of the Council of 16 Dec. 2008 on Common Standards and Procedures in Member States for Returning Illegally Staying Third-Country Nationals”, in K. Hailbronner (ed.), EU Immigration and Asylum law: Commentary, Munich, Beck, 2010, 1522. 128 European Commission (EC), Evaluation on the Application of the Return Directive, Brussels, EC, Final Report, 22 Oct. 2013, 173, available at: http://ec.europa.eu/smart-regulation/evaluation/search/download.do?documentId=10737855 (last visited 21 Nov. 2017). 129 According to collected data this is foreseen (at the very least) in legislations of Belgium (Art. 74(17) of the Law relating to the access to the territory, residence, establishment, and removal of foreigners), Croatia (Art. 118 of the Law on Foreigners), Finland (Art. 147 of the Aliens Act), Germany (Section 60 of the Residence Act), Lithuania, and Slovenia (Art. 72 in connection with Art. 73 of the Aliens Act). 130 Art. 33(1) of the Convention relating to the Status of Refugees, 189 UNTS 150, 28 Jul. 1951 (entry into force: 22 Apr. 1954). 131 European Convention on Human Rights, ETS No. 005, 4 Nov. 1950 (entry into force: 3 Sep. 1953). 132 Art. 331 of the Act on Foreigners. 133 Art. 84 of the Government Emergency Ordinance No. 194/2002. 134 Vanderbruggen et al., “Factsheet”, 3. See also Art. 47 of Charter of Fundamental Rights of the European Union, OJ C 364/1, 18 Dec. 2000 (entry into force: 1 Dec. 2009). 135 See also K. Weatherhead, “Removing ‘Non-Removables’”, Forced Migration Review, 51, Jan. 2016, 75–76. 136 The ECtHR has been very restrictive in finding violations of Art. 3 ECHR when deciding cases where it was argued that there is insufficient health care in countries of origin. This can be seen from the case N. v. the United Kingdom, Judgment, Grand Chamber, Appl. No. 26565/05, 27 May 2008 and previous case law. Only in very exceptional circumstances, for instance, when a person’s removal would expose a person to a real risk of dying under most distressing circumstances, this would constitute inhuman treatment and in such cases the ECtHR held that compelling humanitarian considerations weighed against an expulsion. See case D. v. the United Kingdom, Judgment, Appl. No. 30240/96, 2 May 1997. A landmark decision in this respect is Paposhvili v. Belgium, Judgment, Grand Chamber, Appl. No. 41738/10, 13 Dec. 2016, for which it is claimed that it has reshaped Art. 3 case-law on expulsion of seriously ill persons by lowering the threshold of application. More information is also available at: https://strasbourgobservers.com/2016/12/15/paposhvili-v-belgium-memorable-grand-chamber-judgment-reshapes-article-3-case-law-on-expulsion-of-seriously-ill-persons/ (last visited Apr. 2017). 137 See S. Peers, “Irregular Migrants: Can Humane Treatment Be Balanced against Efficient Removal?”, European Journal of Migration and Law, 17(4), 2015, 301–302. For an overview see also “Factsheet – Health of the ECtHR”, Jun. 2017, 6–8, available at: http://www.echr.coe.int/Documents/FS_Health_ENG.pdf (last visited Jul. 2017). 138 Art. 74(17) of the Law relating to the access to the territory, residence, establishment, and removal of foreigners. 139 A removal will be postponed only in cases when a person suffers from a disease that makes them unable to be transported. A lower level of health care in the country of origin (or any other destination) is in general not accepted as a reason for postponement of a removal decision by the administrative courts. 140 The alien is in need of basic medical aid, the necessity of which is confirmed by a consulting panel of a health care institution. Art. 40(1), point 11 of the Law on the legal status of Aliens. 141 Art. 64 of the Aliens Act. 142 Art. 83(4) of the Act on Residence of Aliens No. 404/2011. 143 Art. 136 of the Law on Foreigners. 144 There is no legislative ground for it, but it does occur in practice. 145 The Residence Act (s. 60a, subsection 2) uses the term “impossible in fact or in law”. A considerable fact is also transport capacity by the state (Länder) responsible for deportation and “in law” also means due to lack of identity documents. 146 Vanderbruggen et al., Point of No Return, 12. 147 It might be interesting that delays in obtaining the necessary documentation from third countries or lack of cooperation by the third-country national concerned are expressly listed as grounds for extension of detention according to Art. 15(6) of the Return Directive. 148 Vanderbruggen et al., Point of No Return, 5, 12. 149 Ibid., 40. 150 The removal is suspended if the public prosecutor's office or the criminal court considers his temporary presence in the Federal territory to be appropriate in connection with criminal proceedings relating to a criminal offence, because it would be more difficult to investigate the facts of the case without his information. Section 60a, para. 2 of Residence Act. 151 Although this confirmation does not provide the proper status to a concerned individual, it at least provides written proof of the impossibility of their return against law enforcement and other authorities. This is a particularly useful aid in avoiding unlawful detention. Vanderbruggen et al., “Factsheet”, 2. 152 The rules of the Directive do not guarantee that the irregular status of an immigrant will be resolved in all circumstances. See A. Baldaccini, “The EU Directive on Return: Principles and Protest”, Refugee Survey Quarterly, 28(4), 2009, 138. 153 It is issued for a period of six months with the possibility of extension for successive periods of six months. Art. 104 of Government Emergency Ordinance No. 194/2002 and GD No. 898/2011. 154 Section 51 of the Aliens Act No. 301/2004. 155 Art. 60a, para. 3 of the Residence Act. 156 Art. 73(6) of the Aliens Act. 157 M. Heegaard Bausager, J. Köpfli Møller and S. Ardittis, Study on the Situation of Third-Country Nationals Pending Return/Removal in the EU Member States and the Schengen Associated Countries, Brussels, European Commission, 2013, available at: http://ec.europa.eu/dgs/home-affairs/e-library/documents/policies/irregular-migration-return/return-readmission/docs/11032013_sudy_report_on_immigration_return-removal_en.pdf (last visited Nov. 2016). 158 It received less attention than other policy tools, such as the visa policy, border control, prevention of illegal employment, and removal of unauthorized migrants. Nevertheless, the EU funded several large-scale studies, of which the most significant was the REGINE study in 2009, titled “Study on the Practices in the Area of Regularisation of Illegally Staying Third-Country Nationals in the Member States of the EU”. See C. McGovern, Regularisation Programmes – A Tool to Manage Irregular Migration in Europe?, Europe’s Newcomers: The Implications of the Migrant and Asylum System, website, Migrants: The Newcomers, 16 Mar. 2015, available at: https://migrantsthenewcomers.wordpress.com/2015/03/16/regularisation-programmes-a-method-of-addressing-irregular-migration-in-europe/ (last visited Nov. 2016). 159 A. Kraler, Regularisation of Irregular Migrants in the European Union, National EMN Conference ‘Pathways out of Irregularity’, Oslo, 10 Oct. 2011. 160 K. Brick, Regularizations in the European Union: The Contentious Policy Tool, Washington, DC, Migration Policy Institute, Policy Brief, Dec. 2011, 2, available at: http://www.migrationpolicy.org/research/regularizations-european-union (last visited Nov. 2016). 161 Art. 6(4) of the Return Directive. It could be argued that under certain circumstances, following a combined reading of Art. 6, para. 4 of the Return Directive and the Charter of Fundamental Rights of the European Union, a Member State might be under the obligation, and not merely conferred the option, to grant a residence permit to those in an irregular situation. See D. Acosta Arcarazo, “The Charter, Detention and Possible Regularization of Migrants in an Irregular Situation under the Returns Directive”, Mahdi’, Common Market Law Review, 57(5), 2015, 1361–1378. This can also possibly be applied to rejected asylum-seekers. 162 This can refer for example to a one-time measure that is a response to particular circumstances, such as a sudden increase in asylum applications. See Brick, Regularizations in the European Union, 3. 163 A regularisation mechanism can be defined as "any procedure other than a specific regularisation programme by which the State can grant legal status to illegally present third-country nationals residing on its territory". See C. McGovern, Regularization Programs within the European Union: An Effective Tool to Manage Irregular Migration?, United Nations University Institute on Globalization, Culture and Mobility (UNU-GCM), Policy Report, 28 Nov. 2014, 13, available at: http://gcm.unu.edu/publications/policy-reports/regularization-programs-within-the-european-union-an-effective-tool-to-manage-irregular-migration.html (last visited Nov. 2016). 164 M. Baldwin-Edwards & A. Kraler, 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, Final Report, Vienna, International Centre for Migration Policy Development (ICMPD), 2009, 8, available at: http://ec.europa.eu/home-affairs/doc_centre/immigration/docs/studies/regine_report_january_2009_en.pdf (last visited Nov. 2016). 165 These usually provide residence permits to asylum-seekers or to individuals with extraordinary health conditions that will not allow them to travel. 166 These allow family members to either reunite with spouses or children living abroad, or to legally remain in a country together if not all members have residence permits. 167 The idea is to provide the addressee with a temporary permit for residence and work and to have them “earn” the right to have the permit extended or permanent. This can be achieved by gaining points through the fulfilment of various criteria, such as knowing the language of the host country, participating in community activities, having stable employment and paying taxes. One of the advantages of such a programme is that it has the upside to be self-selecting, as only the truly motivated migrants would earn enough points. See Report of the Committee on Migration, Refugees and Population (CMRP), Regularisation Programmes for Irregular Migrants, Parliamentary Assembly, Council of Europe, Doc. 11350, 6 Jul. 2007, 9 and 25. 168 Ibid., 2. 169 It might also be the first step in a journey towards citizenship. Ibid., 9. 170 Brick, Regularizations in the European Union, 2. 171 CMRP, Regularisation Programmes for Irregular Migrants, 21. Overly strict requirements, such as proof of employment or long presence in a country, may also lead to application fraud. 172 Ibid., 1–2, 20. 173 With this in mind, many regularisation programmes require some sort of proof that a person is working and can provide for themselves. 174 It is debatable whether a person who has a legal right to stay (i.e. has legal status) in one Member State will then flee to another Member State. There is no substantial evidence that legalised migrants move to other Member States. See Kraler, Regularisation of Irregular Migrants in the European Union. 175 As an example, this issue can be recognized mutatis mutandis in the rules regarding entry bans. An entry ban that is notified in the Schengen information system (SIS) results in the fact that this person cannot enter any of the Member States. If entry into one of them would be allowed, this person could then move to another Member State, possibly the one which issued an entry ban, as there is an absence of internal border checks between Member States. 176 The actual extent of the claimed pull effect is questionable, and likely to be subject to exaggeration. There appears to be a lack of specific research that has come to detailed conclusions. Nevertheless, one possible example of this pull effect, albeit not due to a regularisation programme, can be viewed in Germany. In late August 2015 Germany declared that it would accept all Syrian asylum-seekers and this might have resulted in asylum-seekers focusing on coming to Germany. Similarly, a regularisation programme in one Member State may change the routes and destination of potential new asylum-seekers. Despite this, there are other factors to be considered, for example the amounts of social benefits (e.g. assistances), as Member States with a higher GDP seem to be desired destinations for asylum-seekers. 177 Brick, Regularizations in the European Union, 2. 178 CMRP, Regularisation Programmes for Irregular Migrants, 15–16. Parliamentary Assembly of the Council of Europe also examined the situation of these persons in Resolution 1483 (2006). 179 Brick, Regularizations in the European Union, 10–17. 180 Eurostat, Asylum Statistics, undated, available at: http://ec.europa.eu/eurostat/statistics-explained/index.php/Asylum_statistics (last visited Nov. 2016). 181 It might be relevant to mention that on 3 Oct. 2016, the UN General Assembly adopted the New York Declaration for Refugees and Migrants (UN Doc. A/RES/71/1) that explicitly mentions consideration of policies to regularize the status of migrants as one of the elements towards a global compact for safe, orderly, and regular migration. See Annex II, point (p) of Art. 8. This might prove to be relevant in the forthcoming years. 182 Children under municipal supervision were considered as no longer being under “government” supervision, therefore not fulfilling the eligibility criteria. J. de Bresser, Dutch Mayors Seek Fairer Children's Amnesty, United Nations University Merit, 20 May 2014, available at: http://www.merit.unu.edu/dutch-mayors-seek-fairer-childrens-amnesty/ (last visited Nov. 2016). 183 McGovern, Regularization Programs within the European Union, 15. 184 Brick, Regularizations in the European Union, 5. Humanitarian based programmes tend to be characterized by longer residency requirements than those which focus solely on labour migrants. 185 Interestingly, in the Czech Republic a rejected asylum-seeker can apply for a long-term stay permit for the purpose of protection on the territory, if they are a victim of a criminal offence of human trafficking or a person whom it was helped to cross the state border illegally (or for whom such crossing was organised). A permit can be issued if their testimony is of great importance to criminal proceedings and if they are cooperating with criminal law authorities. See s 42e, para. 1 of the Act on the Residence of Aliens No. 326/1999. This is a consequence of the transposition of rules of the Council Directive 2004/81/EC of 29 Apr. 2004 on the residence permit issued to third-country nationals who are victims of human trafficking or who have been the subject of an action to facilitate illegal immigration, who cooperate with the competent authorities, OJ L 261/19, 6 Aug. 2004. It is likely that other Member States also have a similar rule, although no such data was sent from the respective national experts. 186 This permit is only issued if there are no suspicions that a foreigner might present a danger to public order and security or internal relations of Slovenia and if there is no suspicion that their stay in Slovenia will be connected to terrorist or other violent actions, illegal informative activities, production or sale of drugs, or committing other criminal offences. See Art. 51(1) of the Aliens Act. 187 Section 67 of the Act on Residence of Aliens No. 326/1999. 188 Art. 124 of the Royal Decree 557/2011. 189 Art. 9ter of the Law relating to the access to the territory, residence, establishment, and removal of foreigners. Medical grounds are also used in order to postpone removal, however medical reasons for regularisation ought to be more severe and persist for a long period. 190 Ibid., Art. 9bis. Because no substantive criteria are listed in the law, several circulars and ministerial instructions, with the intent to create transparency, have introduced criteria, such as unreasonably long duration of an asylum procedure, pressing humanitarian situations, or sustainable local embedding. 191 If a spouse or a child is an EU national, there are many cases, where these asylum-seekers (even if rejected) ought to have a right to reside in the Member State of residence of an aforementioned family member following the cases decided by the CJEU. See cases Blaise Baheten Metock and Others v. Minister for Justice, Equality and Law Reform, Judgment, Grand Chamber, C-127/08, 25 Jul. 2008, and Gerardo Ruiz Zambrano v. Office National del'emploi, Judgment, Grand Chamber, C-34/09, 8 Mar. 2011. Protection under Directive 2004/38/EC can be stronger than under Art. 8 ECHR, therefore, the latter is more likely to be invoked when a family member is not an EU national. 192 See ECtHR, Moustaquim v. Belgium, Judgment, Appl. No. 12313/86, 18 Feb. 1991, where the Court first qualified the deportation of a foreigner as a violation of their right to family life. 193 The principle enables the ECtHR to abandon outmoded conceptions of how terms were originally understood. S. Greer, The Margin of Appreciation: Interpretation and Discretion under the European Convention on Human Rights, Human right files No. 17, Strasbourg, Council of Europe Publishing, Jul. 2000, 19, available at: http://www.echr.coe.int/LibraryDocs/DG2/HRFILES/DG2-EN-HRFILES-17(2000).pdf (last visited Nov. 2016). 194 D. Thym, “Residence as De Facto Citizenship? Protection of Long-Term Residence under Article 8 ECHR”, in R. Rubio-Marín, (ed.), Human Rights and Immigration, Oxford, Oxford University Press, 2014, 107. 195 ECtHR, Sisojeva and Others v. Latvia, Judgment, Appl. No. 60654/00, 16 Jun. 2005 (first section, not final, para. 104). The case concerned an ethnic Russian family who had been living in Latvia for 20 years and whose residence status was not recognized by the Latvian authorities after the break-up of the Soviet Union. Following the judgment of the Chamber of the First Section, the Latvian Government requested that the case be referred to the Grand Chamber. The Grand Chamber granted the request and subsequently decided to strike an application out of its list of cases due to the conclusion that the matter had been resolved. The Latvian authorities allowed the applicants to reside on Latvian territory. See points 97-103 of the ECtHR, Sisojeva and Others v. Latvia, Judgment, Appl. No. 60654/00, 15 Jan. 2007. 196 See ECtHR, Rodrigues Da Silva and Hoogkamer v. the Netherlands, Judgment, Appl. No. 50435/99, 3 Jul. 2006, and Butt v. Norway, Judgment, Appl. No. 47017/09, 4 Mar. 2013. 197 Thym, “Residence as De Facto Citizenship?”, 119–20. 198 ECtHR, Slivenko v. Latvia, Judgment, Grand Chamber, Appl. No. 48321/99, 9 Oct. 2003, para. 96 (emphasis added). 199 Thym, “Residence as De Facto Citizenship?”, 119. Periods of a few months or years usually do not suffice for the development of sufficient “private” life. 200 Ibid., 106. © Author(s) [2018]. All rights reserved. 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Return Procedures Applicable to Rejected Asylum-Seekers in the European Union and Options for their Regularisation

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Abstract

ABSTRACT Due to the ongoing refugee crisis that escalated in 2015, thousands of decisions on international protection in the European Union have been issued, of which over 40 per cent were negative. This article focuses on the legal position of these rejected asylum-seekers in 17 European Union Member States, within the scope of return procedures that are carried out as a result of the said rejections, in accordance with the rules of the Return Directive. Despite harmonization rules, national legislations have adopted different solutions with regard to the return and removal of these persons. They are examined and outlined while also taking into account the circumstances that prevent and postpone the return or removal. This can result in “limbo” situations, de facto tolerated statuses, official tolerated statuses, or even acquisition of a residence permit. Furthermore, options for regularisation (due to a regularisation programme or a mechanism) of rejected asylum-seekers are analysed and presented. The absence of such options can pose a serious legal and practical obstacle for those who – due to reasons outside of their control – stay, reside, or remain on the territory of a Member State. 1. INTRODUCTION An impressive body of European Union (EU) law has been produced in the area of asylum and migration, since the EU gained competences to harmonise EU Member States’ policies in this field. In the area of asylum, EU acquis now regulates various aspects of Member States’ asylum systems, which resulted in a Common European Asylum System (CEAS).1 Currently, four directives and two regulations comprise CEAS: the revised Asylum Procedures Directive aiming at fairer and quicker adoption of asylum decisions that are of better quality2; the revised Reception Conditions Directive, which ensures humane material reception conditions for asylum-seekers in accordance with human rights3; the revised Qualification Directive, which clarifies the grounds for granting international protection4; the Temporary Protection Directive regulating minimum standards for giving temporary protection in the event of a mass influx of displaced persons5; the revised Dublin Regulation, which determines the responsible Member State to examine an asylum application6; and the revised EURODAC Regulation, which gives law enforcement access to the EU database of asylum-seekers’ fingerprints in order to prevent, detect, or investigate the most serious crimes.7 Along with CEAS, the EU legislator has adopted a long list of EU legal instruments in the area of migration from third countries. The aspects of migration that are dealt with in EU law are entry conditions for highly skilled workers,8 single permit to reside and work,9 the right to family reunification,10 the status of third-country nationals who are long-term residents,11 the prevention and combating of trafficking in human beings and protecting its victims,12 common norms with regard to entry and residence of third-country nationals in the Schengen area,13 and common standards relating to the return of persons who do not have or no longer have a right to stay on the territory of one of the EU Member States.14 The latter are regulated in the Return Directive.15 This body of EU law is of even greater importance due to the refugee crisis that escalated in 2015. According to Eurostat data over 1.2 million16 first-time asylum-seekers (i.e. those who applied for international protection) were registered each year in 201517 and 2016.18 Their number of 164,555 in the first quarter of 201719 is lower in comparison to quarters of the previous two years. Those who submitted their asylum applications have received or will receive administrative decisions or judgments and there certainly were or will be numerous persons whose asylum applications were or will be rejected. In 2016, 39 per cent of issued decisions were rejected20 and the number is even more staggering in the first quarter of 2017 as nearly 51 per cent of issued decisions were rejected, comprising a total of 143,380 decisions.21 Due to the rejection of their applications, rejected asylum-seekers may be obligated to leave the territory of the respective Member State or be removed from it in line with the rules of the Return Directive. Considering the fact that the Return Directive is an instrument of harmonization, it is of paramount importance that the legislation of individual Member States and various national approaches are examined, in order to grasp the legal position of rejected asylum-seekers in return procedures. The purpose of this article is to examine the legal position of rejected asylum-seekers in different phases of return procedures applicable to them in 17 Member States22 and to determine whether there are any options for their regularisation despite them having received a negative final decision rejecting their application for international protection. 2. METHODOLOGY AND SCOPE OF THE RESEARCH This research builds on the functional method of comparative law, which allows the discovery of similarities and differences in Member States dealing with the return, removal, or regularisation of rejected asylum-seekers. An individual presentation of each Member State’s national legislation is avoided given the limited size of this contribution. Nevertheless, national legislation is singled out in order to illustrate Member States’ practices. The primary data for this research study was collected through the use of questionnaires. As a starting point, uniform terminology (as a thesaurus) was developed by defining the different concepts used in the questionnaire. It was of the utmost importance that these concepts were not linked to a specific national context and could be used across Member State borders. The next step was forming a questionnaire with 28 questions in total and sending it to the targeted potential respondents, who are national experts working in academia or administration under the broad domain of migration law. The number of Member States covered in the research study was therefore dependent on the number of national experts willing to contribute. Eventually, respondents from 17 out of 28 Member States committed to filling out the questionnaire.23 The questionnaires were completed and submitted by the respondents by 25 April 2016 and the respondents were frequently contacted for clarifications on their answers throughout the process of writing this contribution. Where possible, the information provided by the respondents was cross-checked against national legislation, academic literature, and the Asylum Information Database. As a final step, a preliminary version of the text was sent to all respondents in October 2016. This approach enabled all respondents to verify the findings for their Member State, and minor adjustments were subsequently made as a consequence of the respondents’ feedback. Although it was not feasible to gather respondents for each Member State in this short time span, it is argued that a representative sample was compiled. Member States from all geographic corners of the EU can be found among the selected Member States: Northern European Member States (e.g. Finland), Western European Member States (e.g. the Netherlands), Eastern European Member States (e.g. Romania), and Southern European Member States (e.g. Spain). Apart from geographical spread, the sample of Member States also contains both Member States which are large (e.g. Germany) and small (e.g. Croatia) recipients of asylum-seekers.24 In summary, the selection of Member States allows for relevant conclusions on return procedures applicable to rejected asylum-seekers in the EU and options for their regularisation. 3. DISTINCTION BETWEEN ASYLUM-SEEKERS AND IRREGULAR MIGRANTS In order to avoid terminological misunderstandings, a distinction needs to be made between asylum-seekers and migrants. The International Organization for Migration (IOM) defines an asylum-seeker as a person who seeks safety from persecution or serious harm in a State other than their own and awaits a decision on the application for refugee status under relevant international and national instruments.25 An asylum-seeker is therefore an applicant for international protection. The latter is defined in EU law as a third-country national or a stateless person who has made an application for international protection in respect of which a final decision has not yet been taken.26 A migrant, on the other hand, is defined as any person who is moving or has moved across an international border or within a State away from their habitual place of residence.27 Migrants whose movement takes place outside of the regulatory norms of the sending, transit, and receiving countries are considered irregular migrants.28 These can be divided into three groups: irregular entrants (those who evade formal migration controls and those who present false papers), over-stayers who were lawfully present in a State, but remain after the end of the permitted period,29 and rejected asylum-seekers who were issued a final decision refusing them a continuing right to remain.30 This last category includes those who stay in a State despite a final decision and those who had just received a final decision and might even intend to leave. Rejected asylum-seekers are therefore a subcategory of irregular migrants. Due to their irregular status, they have to leave the State and may be subject to removal, as is the case with non-nationals who do not possess permission to stay. 4. WHO DECIDES ON ASYLUM APPLICATIONS? The first procedural step for granting asylum is the lodging of an asylum application,31 which is then processed and leads to the issuance of a decision. In the majority of the examined 17 Member States, the competent institution for issuing decisions on asylum applications is the Ministry of Interior (Croatia,32 Slovenia,33 Spain34), or an internal organisational unit or administrative body under the Ministry of Interior (Cyprus,35 the Czech Republic,36 Finland,37 Greece,38 Hungary,39 Italy,40 Lithuania,41 Poland,42 Romania,43 and Slovakia44). In some Member States, however, the competent institution is the Ministry of Immigration (France), an agency of the Ministry of Security (the Netherlands),45 a specialised Federal Office for Migration and Refugees (Germany),46 or The Office of the Commissioner General for Refugees and Stateless Persons (Belgium).47 While different Ministries or their internal organisational units are competent to issue a decision granting or rejecting an asylum application, all of them are administrative bodies. If a decision rejecting an asylum application is issued, it is usually also final within administrative proceedings, as an appeal in these proceedings is not possible in the majority of Member States (except in Greece48 and Poland49). Even though appeals within administrative proceedings are not foreseen in the legislation of Member States (barring some exceptions), judicial review of negative administrative decisions is obligatory under Article 46 of the revised Asylum Procedures Directive. In the majority of examined legislations of Member States, the competent judicial body is an Administrative court (Belgium,50 Croatia,51 Cyprus, the Czech Republic,52 Finland,53 Germany, Greece,54 Lithuania,55 the Netherlands, Poland,56 Romania,57 Slovenia,58 and Spain). In some cases, it is the competence of a specialised court, as is the case in France, where the competent court is the Cour nationale du droit d'asile, or in Hungary, where the specific regional Labour and Public Administration Court is competent. The Civil Tribunal in Italy and regional general courts in Slovakia (but with a specific territorial competence in Bratislava and Košice)59 are competent to review administrative decisions and their judgments are final. Nevertheless, judicial appeal to the High Administrative Court (Croatia), Supreme Administrative Court (the Czech Republic, Finland,60 Germany,61 Lithuania, Poland),62 Supreme Court (Cyprus,63 Slovakia), Council of State (Belgium,64 the Netherlands),65 or the highest administrative court (Conseil d'Etat in France) is possible in some Member States. Interestingly, at least in Slovenia, Croatia, and the Czech Republic, an additional option available to a rejected asylum-seeker is to lodge a complaint before the Constitutional Court in the case where the applicant claims a violation of a human right or a fundamental freedom, guaranteed by the respective Constitution. 5. RETURN PROCEDURES The lodging of an asylum application and its processing generally means that the applicant is granted a right to stay until a decision granting or rejecting the asylum status is issued. If the asylum decision is negative and the asylum-seeker is rejected, the usual consequence is a person’s loss of the right to stay in the respective Member State. In this case, the rejected asylum-seekers’ stay on the territory of a Member State is considered to be illegal.66 This is, however, only a general statement, as theoretically a person might have a residence permit based on different grounds, for example if he or she67 has a visa or joins a legally staying family member in the respective Member State. In practice though, a rejected asylum-seeker in most cases does not stay legally on the territory of a Member State and a return decision has to be issued to him. This obligation is imposed as a general rule to Member States in Article 6(1) of the Return Directive. The following paragraphs allow for a limited number of foreseen exceptions to the general rule. One of these exceptions allows for Member States to decide at any moment to grant an autonomous residence permit or other authorisation offering a right to stay for compassionate, humanitarian, or other reasons to third-country nationals staying illegally on their territory. In such a case, no return decision is issued or a previously issued return decision is withdrawn or suspended for the duration of the validity of the residence permit or other authorisation offering a right to stay.68 5.1. No return decision The possibility of rejecting an asylum application without issuing a return decision can be found in the legislation of some Member States. Even though an asylum-seeker is rejected, he need not always be subject to a return decision in the Czech Republic,69 Finland,70 Spain,71 Poland,72 and Lithuania. In Lithuania, for instance, a return decision is not automatically issued after the rejection of an asylum application. If a foreigner (e.g. rejected asylum-seeker) has other legal grounds for staying (e.g. their stay is not considered illegal), a return decision is not issued.73 Furthermore, a return decision is not issued when it would violate the principle of non-refoulement, that is when a foreigner cannot leave because of humanitarian reasons, or if he was a victim of human trafficking and is granted a period for deciding whether to cooperate with a pre-trial institution or a court. 5.2. Return decision and voluntary return period More often though (barring the exceptions above), a return decision is issued once an asylum application is rejected and becomes final. When that happens, the return decision – according to the harmonized rules – includes a time period within which a person without legal grounds for staying (e.g. a rejected asylum-seeker) may voluntarily leave the territory of the respective Member State that had issued the decision. A voluntary return means that rejected asylum-seekers themselves decide to return to their country of origin and they may receive administrative, financial, and logistical support in some Member States. This period can range from 7 to 30 days,74 and several of the analysed Member States have implemented this exact period in their legislation (Belgium,75 Croatia,76 Cyprus, Finland,77 Greece, Italy,78 Lithuania,79 Slovenia, Slovakia80), or a period of around 15 (Romania81) or 30 days (Hungary,82 France,83 Germany,84 the Netherlands,85 Poland). A longer voluntary return period is given in the Czech Republic (7–60 days).86 This is not prohibited, as Article 4, paragraph 3 of the Return Directive allows for more favourable provisions to persons concerned, as long as the provisions are compatible with the directive.87 When determining the voluntary return period, the circumstances of an individual (Finland) and his ability to actually leave the Member State (Slovenia)88 are taken into account. A bought plane ticket (for which a rejected asylum-seeker had to have all documents), or accommodation in a Foreigners Centre can influence and shorten the voluntary return period (as is the case in Lithuania). 5.3. Return decision and no voluntary return period It is important to note that the voluntary return period is not given to everyone. If a risk of absconding exists (Belgium, Finland,89 France, Greece, Poland,90 Lithuania, the Netherlands, Slovenia,91 Cyprus), if an application for a legal stay has been dismissed as manifestly unfounded (Finland,92 Greece, the Netherlands) or fraudulent (Belgium, France, Cyprus), if the person concerned poses a risk to public policy,93 public security, or national security (Belgium, Cyprus, the Czech Republic, Finland, France, Greece,94 the Netherlands,95 Poland, Slovenia), or if the applicant has not complied with the imposed preventive measures (Belgium), the Member State may refrain from granting a period for voluntary departure, or may grant a period shorter than seven days.96 The question which is not answered by the Return Directive, however, is: what presents the risk of absconding and how is it determined? In the Return Directive, the risk of absconding means “‘the existence of reasons in an individual case which are based on objective criteria defined by law to believe that a third-country national who is the subject of a return procedure may abscond”‘.97 It is then up to the Member States to determine the reasons by law which are based on objective criteria that lead to the belief that an individual may abscond.98 Examples of these (objective) criteria can be found in Slovenian and Polish legislation. In Slovenia,99 the circumstances that may lead to a belief that the risk of absconding of a foreigner (e.g. a rejected asylum-seeker) is present are: previous illegal stay of the foreigner in Slovenia; entry of the foreigner despite an entry ban; conviction for a criminal offence that is final; possession of a foreign, forged, or otherwise changed passport or other document; stating false data or not cooperating during the process, or the foreigner’s behaviour that shows that he will not leave Slovenian territory in the voluntary departure period.100 In Poland, the likelihood that a foreigner will escape is evident in particular when a foreigner (e.g. a rejected asylum-seeker): declares his or her unwillingness to fulfil his or her obligation arising from the receipt of the decision imposing the return obligation; has no documents certifying his or her identity; has crossed or attempted to cross the border in breach of legal regulations, or entered the territory of Poland in the duration of his or her inclusion in the register of foreigners whose stay within the territory is undesirable or in the Schengen Information System (SIS) for the purpose of refusing entry.101 Lack of such a specification of objective and serious elements to the risk of absconding can result in the annulment of an administrative decision. Such an example was already established in Belgium.102 5.4. Obligations related to voluntary departure Related to the risk of absconding are also measures that aim to avoid it. Member States may, for the duration of the voluntary departure period, impose certain obligations upon the respective individuals, such as regular reporting to the authorities, deposit of an adequate financial guarantee, submission of documents, or the obligation to stay at a certain place.103 Provisions on the possibility of imposing these measures can be found in the legislation of the Czech Republic,104 Poland,105 and Slovenia.106 Whether one, two, or more of them are imposed upon a foreigner is determined in the return decision. 5.5. Return decision and extended voluntary return period When determining the voluntary return period of a rejected asylum-seeker in accordance with Article 7 of the Return Directive, Member States shall, where necessary, extend the period for voluntary departure for an appropriate period, taking into account the specific circumstances of each individual case (the Netherlands),107 such as the length of stay, the existence of children attending school, and the existence of other family and social links.108 Some Member States allow that the voluntary departure period is extended because of the length of stay (Belgium, Italy, Lithuania, Slovakia, Poland), health problems (Greece,109 Hungary), because children still attend school (and are close to finishing it),110 or because other family, social (Belgium,111 Cyprus, the Czech Republic, Italy, Poland,112 Slovakia,), or economic (Lithuania)113 ties exist with the territory of the respective Member State. Different solutions are present in some other Member States. Namely, some legislations do not provide for a set of specified circumstances for the extension of the voluntary return period, but more generally, such an extension can be granted if exceptional reasons are related to the case (Finland,114 Spain115). National legislation in Belgium also allows for an extension of the time limit for voluntary departure if the rejected asylum-seeker provides proof that departure cannot be carried out within the given time limit.116 Furthermore, although some national legislations may not provide for the possibility of an extension, it is de facto allowed in practice (Germany),117 namely for personal visits − to say goodbye to friends or relatives for example. Additionally, the willingness or unwillingness to facilitate the return of a rejected asylum-seeker can also serve as a reason for the extension of a voluntary departure period (Italy, Belgium), along with the high chance that it will be possible to arrange for departure in the extended period. This can be observed in the Netherlands.118 The Return Directive does not, however, determine timeframes, nor does it limit the period of time to which the voluntary departure period can be extended. Therefore, these differ significantly across Member States. The maximum period in total can be two (Lithuania), three (Croatia,119 the Netherlands,120 Spain), six (the Czech Republic), or even 12 months (Poland). 6. REMOVAL If a rejected asylum-seeker does not comply with the obligation to voluntarily leave the territory of the Member State in the prescribed period of time or if they are not given a voluntary departure period,121 the Member State is obliged to take all necessary measures to enforce the issued return decision.122 In this regard, a removal decision is issued in Belgium,123 Croatia,124 the Czech Republic, Finland, Germany, Greece, Hungary, Italy, Lithuania, Romania,125 Slovakia, and Slovenia.126 According to Article 6, paragraph 6 of the Return Directive, Member States can issue a return decision determining the end of a legal stay together with a removal decision in a single administrative or judicial decision, or act as provided for in their national legislations. When adopting the Directive, the aim was, as a general principle, to establish a two-step127 procedure: as a first step a return decision is issued with the chance to return voluntarily and a removal decision is issued only when the person concerned fails to do so. As many Member States expressed concern about procedural delays that could be caused by this, the option to implement a two-step or a one-step (all decisions issued at once) procedure was left to the Member States themselves.128 6.1. Postponement of removal Enforcement of a removal (decision) can, however, be troublesome. Legal, practical, technical, or humanitarian reasons can result in removal not being allowed or even possible. In such a case, the Member State has to postpone it. Legal grounds for this can be found in Article 9 of the Return Directive. One of them is the non-refoulement principle of international customary law that has to be respected by the Member States.129 According to this principle, it is prohibited to expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where their life or freedom would be threatened on account of their race, religion, nationality, membership of a particular social group, or political opinion.130 Moreover, it is also prohibited to expel or return a refugee to a State, if this State would then expel or return an individual to a further territory where their life or freedom would be threatened (i.e. chain refoulement). All EU Member States must, as contracting parties to the European Convention of Human Rights (ECHR)131 and in accordance with its Article 3, protect each human being against torture or cruel, inhuman, or degrading treatment, as well as to other serious violations of human rights. In line with this, it is prohibited to return or remove an individual (including a rejected asylum-seeker) to a State where this would lead to a real risk of such serious violations. A further obligatory ground for postponement of removal is the suspensory effect of a remedy (for instance in the Czech Republic, Poland,132 Romania133) against a return or a removal decision, which is an already existing obligation of Member States under international law and the Charter of Fundamental Rights of the EU.134 While the Member States must postpone removal when it would violate the non-refoulement principle or in the case of a suspensory effect of a remedy, additional grounds listed in Article 9 of the Return Directive allow Member States to postpone removal for an appropriate period, again taking into account the specific circumstances of an individual case. Grounds mentioned are a third-country national’s physical state or mental capacity and technical reasons, such as lack of transport capacity or failure of the removal due to lack of identification.135 Compromised physical state or mental capacity count as health issues that can be twofold. Firstly, a person can have severe health issues that make them unwell and consequently unable to return to the country of origin. On the other hand, this can also mean that a person cannot obtain essential treatment in the country of origin, and in such circumstances, their removal could be a violation of Article 3 ECHR.136 Individuals suffering from severe illnesses can risk inhumane or degrading treatment or punishment because of the lack of access to treatment on return.137 According to collected data, removal can be postponed due to health issues in Belgium,138 Croatia, Cyprus, Finland, Germany,139 Hungary, Lithuania,140 the Netherlands,141 Spain, Slovenia, and Slovakia.142 Failure of removal due to a lack of transport capacity (Belgium, Croatia, Germany, Slovenia) or failure of removal due to lack of identification (Belgium, Croatia,143 the Czech Republic,144 Germany145) can also be found as a ground for postponement of removal in the legislations of Member States. This is due to the fact that perhaps there simply are no flights to the country of origin, or the functioning of the airports is affected by unsafe conditions. Lack of identification is also a practical obstacle, as asylum-seekers frequently arrive without genuine identity papers that prove their identity and their country of origin. They might even need to use a false document in order to flee their country of origin. Some are told by smugglers to destroy their identity documents.146 Lack of identification can also be connected to issues in obtaining travel documents.147 Difficulties may exist when obtaining travel documentation from the embassy of the person's country of origin. Some embassies can refuse or indefinitely delay issuing a travel document to returnees who do not have a valid passport. Lack of a relevant travel document (e.g. passport) is a ground for postponement in Cyprus, Finland, Lithuania, and Slovenia. Identity of the persons concerned could also be disputed by the embassies, when they demand unrealistic or unattainable proof of nationality.148 In some of these cases, rejected asylum-seekers cannot return or be removed due to various reasons beyond their control. The country of origin may perhaps not permit the forced return of individuals against their will and a person cannot be removed from the territory of their stay. The country of origin might also refuse to accept the concerned individual in general, and so removal needs to be postponed. This ground can be found in the Czech Republic (in practice), Germany, Lithuania, and Slovenia. An individual who is a stateless person cannot be returned or removed either. Moreover, social ties might be important for the postponement of the removal of a rejected asylum-seeker, for example in the case of a severe disease or death of a family member (Slovenia). In some cases, family links or other important ties with the host country may constitute legal barriers to the return or removal of the concerned individual “as it would result in an unduly harsh interruption of family life”.149 Respect for the right to family and private life is governed by the international human rights law (see point 7.3). Lastly, removal is postponed if it is necessary that the third-country national (e.g. a rejected asylum-seeker) cooperates in a procedure before a State body (Slovenia), or with a pre-trial institution or a court (as in Lithuania and Germany).150 6.2. Legal stay? In cases where the Return Directive requires that Member States postpone removal, the only obligation that is required of them (according to Article 14, paragraph 2 of the Return Directive) is to inform the concerned persons by written confirmation that the return decision will temporarily not be enforced.151 However, there is no obligation to issue a status granting document, for example a temporary residence permit.152 If concerned individuals cannot be returned or removed and simultaneously cannot obtain a residence permit in the Member State where they are living, they can be excluded from rights to health care, housing, education, and work. As a result, some Member States do issue permits for tolerated stay to persons who cannot be returned or removed. This is for example done in the Czech Republic (“vízum strpění”), Germany (“Duldung”), Romania (“Document de tolerat”),153 and Slovenia (“dovoljenje za začasno zadrževanje”). A temporary fixed term residence permit can be issued in Finland if a person cannot be removed due to health issues, or if the removal is in fact impossible to carry out.154 If a stay is legal – either on the ground of a permit for tolerated stay or a temporary residence permit – a permit is (in the above-mentioned Member States) strictly issued for as long as an obstacle to removal exists. When the reason ceases to exist, permission for a tolerated stay will not be renewed, or will be revoked. The obligation to leave the territory of the respective Member State does not cease to exist, but is therefore merely postponed (the Czech Republic, Germany,155 Romania, and Slovenia156). With regard to individuals who cannot be removed from the territory of a Member State, a study of the European Commission157 documents the divergences that exist at the national level concerning the rights granted to them. Given the enormity of these divergences, it may be concluded that essentially a different approach is adopted in each EU Member State. 7. REGULARISATION Another alternative that is important for rejected asylum-seekers and has the opposite consequences of a return is their regularisation. Regularisation has been a topic that has been, as one might say, neglected or has received less attention.158 There is no universal definition of the term regularisation. It can be described and thought of as a status adjustment in the continuum between an irregular and regular legal status159 with the objective of granting a legal status to persons who lack it.160 This is also permitted in the Return Directive, as Member States may at any moment decide to grant an autonomous residence permit or other authorisation offering a right to stay for compassionate, humanitarian, or other reasons to third-country nationals staying illegally on their territory.161 In particular, regularisation helps to address the state of insecurity and ‘limbo’ that rejected asylum-seekers find themselves in. Fundamentally, this can be achieved in two different ways. Regularisation can be divided into regularisation programmes and regularisation mechanisms. While the first are often (one-off) humanitarian programmes that continue for a limited period of time and target specific groups of irregular migrants,162 the latter are permanent provisions built into immigration legislation allowing the regularisation of individuals as opposed to time-limited programmes.163 7.1. Regularisation programmes A “regularisation programme” is defined by the EU Commission funded REGINE study “as a specific regularisation procedure which does not form part of the regular migration policy framework, runs for a limited period of time and targets specific categories of non-nationals in an irregular situation”.164 In practice, several different types of regularisation programmes targeting irregular migrants have been tried. They can be labelled as exceptional humanitarian programmes due to health reasons,165 one-off or one-shot programmes, family reunification programmes,166 permanent or continuous programmes, and earned167 regularisation programmes.168 Member States can regularise individuals in several different ways, either by tolerating the stay of irregular migrants (including rejected asylum-seekers) de facto or formally, or issuing a temporary or permanent residence permit. Sometimes a tolerated stay may with time also lead to a residence permit.169 It is important to note that granting legal status and the ability of the addressee to maintain it are linked to the eligibility requirements, political objectives, target populations, and programmatic details of the regularisation programme.170 If the eligibility requirements are highly demanding, there is a high probability that a person who had been granted a legal status will with time fall back into irregularity. Reversion of an undocumented status is not the only challenge arising out of regularisation programmes. Others, such as a lack of administrative preparedness, lack of publicity, overly strict requirements, and application fraud need to be taken into account.171 As is the case with every political or legal issue, pros and cons of a specific measure are always weighed against each other. Regularisation (programme or mechanism) has positive and negative practical and theoretical effects. A solution for human rights and human dignity, a decrease of the likelihood of the exploitation of persons concerned, a reduction of the size of the underground economy, a positive impact on tax revenues and the collection of social security contributions, a solution for the EU hungry labour market,172 and the reduction of delinquency are viewed as possible positive effects of regularisation. On the other hand, the negative effects (or the fear of negative effects) of regularisation impose a line of thought against regularisation. An irregular migrant might not be able to provide for themselves and their family and will require social assistance,173 or they might not remain in the Member State granting them legal status174 and move to another Member State.175 Along with that, the creation of a “pull effect”176 and the question of whether the consequence of breaking the law should be rewarded177 are additional negative effects to be considered. Despite all of this, several examples of regularisation programmes targeting specifically rejected asylum-seekers have existed in the last two decades, namely humanitarian-based regularisation programmes in Luxembourg (2001), the Netherlands (2003),178 Sweden (2006), and Germany (1999 − for those who entered before 1993).179 These may be an indicator that such programmes are first of all possible and humanitarian. Even the presented and presumed numbers regarding (rejected, present, and future)180 asylum-seekers should not discourage Member States or EU institutions from establishing or agreeing upon a regularisation programme. It needs to be stressed, however, that the analysed Member States have not developed a recent regularisation policy for those staying on their territory illegally.181 An example of such a policy occurred a few years ago (and is therefore not recent) in the Netherlands. There was a regularisation policy programme kinderpardon (i.e. children amnesty). The scheme allowed for a residence permit to be granted to rejected asylum-seekers who had lived in the Netherlands and claimed asylum for at least five years before their 18th birthday, were younger than 21 years of age at the time of the agreement (29 October 2012), and did not leave the central government’s supervision for more than three months. Due to the harsh restrictions and debatable legal interpretations, a broader and more lenient interpretation of the law was desired by several mayors and non-governmental organisations (NGOs) in the Netherlands.182 7.2. Regularisation mechanisms The second option for regularisation is regularisation mechanisms. These are permanent provisions built into immigration law that address those who do not qualify for repatriation to their country of origin or asylum.183 The criteria of both regularisation programmes and regularisation mechanisms are similar. They often include requirements for the length and continuity of residence, current employment or proof of future employment, and issues of humanitarian concern, such as the undue length of asylum procedures, the inability to return to the country of origin, or health and family reasons.184 Even though Member States generally do not wish to regularise illegally staying rejected asylum-seekers, certain solutions or options exist for rejected asylum-seekers to regularise their stay in the Member States of the EU. The term “regularization” in the options presented will mean that the rejected asylum-seeker can obtain a residence permit, either temporary or permanent. Tolerated stay is therefore excluded from the following options, as this generally means that a return or removal has been postponed, although a residence permit is not granted to the individual. The connection to the persons whose stay is tolerated, however, needs to be made. Reasons for tolerated stay are numerous and have been presented in point 6.1. Even though some reasons usually exist merely for a shorter period of time (like health issues or lack of transport capacity), others can in practice exist for a very long period of time (non-refoulement as an example). In cases where the tolerated stay of a rejected asylum-seeker lasts for several years, Member States may deem it sufficient to grant a residence permit to such an individual. This can be a consequence of applying the non-refoulement principle, delays in the proceedings on international protection, the creation of labour and social roots, the need to cooperate in a criminal law case,185 or due to medical or humanitarian (i.e. other than medical) grounds. An example of applying the non-refoulement principle can be found in Slovenian legislation. Foreigners who had a permit of stay for at least 24 months because they could not be removed due to the non-refoulement principle, and whose identity is indisputable, can obtain a residence permit for a period of two years.186 With regard to delays in proceedings on international protection, an example is present in the legislation of the Czech Republic. In the case a person staying in the Czech Republic on the basis of a legal temporary residence permit for a period of four years, and provided their international proceedings took at least two years and there are strong humanitarian reasons accompanying their case, permanent residence may be granted to said individual.187 An example based on the creation of labour and social roots exists in Spain as an exceptional kind of individual regularisation. It may be granted in consideration of various criteria, such as whether an individual is a citizen of the EU, EEA, or Switzerland; has a criminal record (in Spain and in former countries of residence); is prohibited from entering Spain; has resided in Spain for a minimum of three continuous years (two years if there is an employment relationship that has lasted for at least 6 months), and whether they have a work contract and family ties (a spouse, registered partner, ascendants, or descendants in the first degree), or a report attesting to their social integration (issued by the Autonomous Community of habitual residence or Municipality, if authorized by the Autonomous Community).188 Lastly, in Belgium, an individual can be regularised due to medical grounds if the disease constitutes a present and real risk to the life or physical integrity of the individual, or a real risk of inhumane or degrading treatment, due to a lack of adequate treatment in the country of origin189; or due to humanitarian grounds (i.e. other than medical), if there are exceptional circumstances to justify that the request is submitted in Belgium and the grounds sufficiently justify a right to stay.190 7.3. Regularisation as a human right? One of the difficulties of the ongoing refugee crisis – due to the vast amounts of asylum applications – are possible procedural delays before decisions are issued. In practice, these can even extend over a period of several years. In such cases, it is not unreasonable to expect that asylum-seekers will (with the lapse of time) successfully integrate into the societies of the respective Member States, marry, and/or have children.191 These circumstances quite possibly may be relevant (from a human rights perspective) for those asylum-seekers who are rejected and are the subjects of return proceedings. According to Article 8 of the ECHR, everyone has the right to respect for their private and family life, their home, and their correspondence. However, it is questionable as to what extent this human right can be conferred upon rejected asylum-seekers, and if it can be successfully invoked. It is established in the case law of the European Court of Human Rights (ECtHR), that grounds for the protection of a foreigner’s right to family life192 can be found in the “principle of evolutive or dynamic interpretation”.193 Protection under Article 8 ECHR has been extended even further to cover long-term residence status, including a potential right to regularise illegal stay.194 This is evident in the Judgment Sisojeva et al. v Latvia,195 where the ECtHR stated that while the chief object of Article 8 is to protect the individual against arbitrary interference from the public authorities, it does not merely compel the State to abstain from such interference. In addition to this negative undertaking, there may be positive obligations inherent in effective respect for private or family life. To put it differently, refraining from deportation does not serve as a sufficient means of protecting and affording – the latter needs to be afforded without interference. A couple of cases confirm that the ECtHR, albeit exceptionally,196 protects the illegal residence status under the heading of “private” life, and high contracting parties might be obliged to regularise their stay.197 Essential to this is the interpretation by the ECtHR that a person’s private life is characterised by the “network of personal, social and economic relations that make up the private life of every human being”.198 Although “cases decided so far have concerned extended periods of residence over many years, if not decades”,199 it is not impossible to imagine that rejected asylum-seekers without a legal status (who aim to be regularised) could develop this network of personal, social, and economic relations in order to invoke the right to private life. The protective reach could also be additionally expanded with the dynamic interpretation. Nevertheless, it needs to be stressed that the regulation of the entry and stay of foreigners has traditionally been a matter of the States’ sovereignty, and conferring human rights on foreigners poses a direct challenge to this meaning.200 Moreover, cross-reference to the conditions of long-term residency, pursuant to Article 4 of the Directive can be made. Third-country nationals are protected due to their entitlement to a long-term residency status when they have resided legally and continuously within the territory of a Member State for five years immediately prior to the submission of the relevant application. Considering the fact that the Long-Term Residents Directive does not apply to rejected asylum-seekers (as they do not have a residence permit), it is questionable how much time has to pass before illegal residence is protected. Although it is not protected under the Long-Term Residents Directive, it might be protected in some cases under the ECHR provisions. When comparing the two groups of persons, the law should not equate or favour illegally staying persons with those who stay legally. The amount of time for the protection of illegal residence should therefore theoretically be much longer, while obviously taking into account other material criteria for the establishment of a “network of personal, social and economic relations that make up the private life of every human being”. 8. CONCLUDING THOUGHTS Even though the EU has adopted common standards in the Return Directive, diversities still exist among the examined Member States. These are procedural both in a narrow sense, such as the length of voluntary return periods, issuance of return or removal decisions together or separately, etc., and in a broader sense, such as reasons for the postponement of return or removal, and statuses that arise out of postponement. The latter differ significantly between examined Member States. Rejected asylum-seekers who do not leave and cannot be removed from the territory of a Member State can be either left in “limbo” situations, de facto tolerated, officially tolerated, or even receive residence permits. Due to differences in statuses, the scope of rights attached to these statuses differs not only in a horizontal Member State to Member State comparison, but also in a vertical single Member State analysis when a rejected asylum-seeker has his status adjusted. The scope of rights attached to these statuses is unclear (ambiguous), and conclusions are more troublesome due to the fact that Member States very rarely distinguish between rejected asylum-seekers and other persons illegally staying on their respective territories. From a legal perspective, additional amendments, with the hope of bringing clarity to the mentioned issues, are needed and welcome, thus will hopefully follow in the upcoming years. In conclusion, it also needs to be highlighted that very few regularisation programmes and mechanisms exist for rejected asylum-seekers. This can be a serious legal and practical obstacle for those who stay (i.e. are tolerated), reside, or remain on the territory of a Member State for a longer period of time. In this respect, a distinction in national legislations should be made between those who themselves do not wish to return or be removed, and those, who cannot do so, due to reasons outside of their control. The authors would like to thank all the respondents, who have invaluably helped with the collection of data by filling out the questionnaires and their submission of further remarks on how to improve our contribution. Without them this research would not have been possible. Special gratitude goes to Siemen Buttiëns, Goranka Lalić Novak, Anamarija Kovac, Constantina Economou, Pavel Pořízek, David Kryska, Jaana Palander, Elina Pirjatanniemi, Jean-Philippe Lhernould, Michael Schlegelmilch, Lars Hillmann, Chrysafo Tsouka, Antigoni-Maria Spyropoulou, Danai Angeli, Antal Örkény, Salvatore Fabio Nicolosi, Laurynas Biekša, Ilona Ivašauskaité, Viola Bex-Reimert, Veronika Flegar, Barbara Kowalczyk, Mihaela Matei, Mária Srebalová, Dolores Carrascosa Bermejo, and Carlos García de Cortázar. Footnotes 1 M. Vanderbruggen et al., “Factsheet: Unreturnable Migrants in Detention, in EU Law and Policy”, Supplement to the Report: Point of No Return, The Futile Detention of Unreturnable Migrants, Jan. 2014, 1, available at: http://pointofnoreturn.eu/wp-content/uploads/2013/12/PONR_Factsheet_EU_2_HR.pdf (last visited 21 Nov. 2017). 2 Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection (recast), OJ L 180/60, 29 Jun. 2013. 3 Directive 2013/33/EU of the European Parliament and of the Council of 26 June 2013 laying down standards for the reception of applicants for international protection (recast), OJ L 180/96, 29 Jun. 2013. 4 Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection for a uniform status for refugees or for persons eligible for subsidiary protection and for the content of the protection granted (recast), OJ L 337/9, 20 Dec. 2011. 5 Council Directive No. 2001/55/EC of 20 July 2001 on minimum standards for giving temporary protection in the event of a mass influx of displaced persons and on measures promoting a balance of efforts between Member States in receiving such persons and bearing the consequences instead, OJ L 212, 7 Aug. 2001. 6 Regulation 604/2013/EU of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person (recast), OJ L 180/31, 29 Jun. 2013. 7 Regulation 603/2013/EU of the European Parliament and of the Council of 26 June 2013 on the establishment of “Eurodac” for the comparison of fingerprints for the effective application of Regulation No. 604/2013/EU establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person and on requests for the comparison with Eurodac data by Member States’ law enforcement authorities and Europol for law enforcement purposes and amending Regulation No. 1077/2011/EU establishing a European Agency for the operational management of large-scale IT systems in the area of freedom, security and justice, OJ L 180, 29 Jun. 2013. 8 Council Directive 2009/50/EC of 25 May 2009 on the condition of entry and residence of third-country nationals for the purpose of highly qualified employment, OJ L 155, 18 Jun. 2009. 9 Directive 2011/98/EU of the European Parliament and of the Council of 13 December 2011 on a single application procedure for a single permit for third-country nationals to reside and work in the territory of a Member State and on a common set of rights for third-country workers legally residing in a Member State, OJ L 343, 23 Dec. 2011. 10 Council Directive 2003/86/EC of 22 September 2003 on the right to family reunification, OJ L 251/12, 3 Oct. 2003. 11 Council Directive 2003/109/EC of 25 November 2003 concerning the status of third-country nationals who are long-term residents, OJ L 16/44, 23 Jan. 2004; and Directive 2011/51/EU of the European Parliament and of the Council of 11 May 2011 amending Council Directive 2003/109/EC to extend its scope to beneficiaries of international protection, OJ L 132/1, 19 May 2011. 12 Directive 2011/36/EU of the European Parliament and of the Council of 5 April 2011 on preventing and combating trafficking in human beings and protecting its victims, replacing Council Framework Decision 2002/629/JHA, OJ L 101/1, 15 Apr. 2011. 13 Regulation 562/2006/EC of the European Parliament and of the Council of 15 March 2006 establishing a Community Code on rules governing the movement of persons across borders, OJ L 105/1, 13 Apr. 2006. 14 Vanderbruggen et al., “Factsheet”, 1. 15 Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals, OJ L 348/98, 24 Dec. 2008. 16 It is highly likely that the figure of 1.2 million is fundamentally inaccurate, thus it may even be argued that Eurostat is applying incorrect numbers. Namely, in 2015 Germany alone was faced with a total of 890,000 asylum-seekers, which greatly exceeds the number (i.e. 441,000) recorded by Eurostat (while the reported number was even 1.1 million as some persons had multiple entries in the EASY system). See German Federal Ministry of Interior, “890,000 Asylum-Seekers in Year 2015”, Press Release, 30 Sep. 2015, available at: http://www.bmi.bund.de/SharedDocs/Pressemitteilungen/DE/2016/09/asylsuchende-2015.html (last visited 21 Nov. 2017). 17 Eurostat, “Record Number of Over 1.2 Million First Time Asylum Seekers Registered in 2015”, News Release, 4 Mar. 2016, available at: http://ec.europa.eu/eurostat/documents/2995521/7203832/3-04032016-AP-EN.pdf (last visited 21 Nov. 2017). 18 Eurostat, “1.2 Million First Time Asylum Seekers Registered in the EU-28 in 2016”, News Release, 16 Mar. 2017, available at: http://ec.europa.eu/eurostat/documents/2995521/7921609/3-16032017-BP-EN.pdf/e5fa98bb-5d9d-4297-9168-d07c67d1c9e1 (last visited 21 Nov. 2017). 19 Eurostat, “First Time Asylum Applicants in the EU-28 by Citizenship, Q1 2016 – Q1 2017 Update”, Asylum Quarterly Report, 15 Jun. 2017, available at: http://ec.europa.eu/eurostat/statistics-explained/index.php/File:First_time_asylum_applicants_in_the_EU-28_by_citizenship,_Q1_2016_%E2%80%93_Q1_2017_update.png (last visited 21 Nov. 2017). 20 Eurostat, “Asylum Statistics”, 13 Mar. 2017, available at: http://ec.europa.eu/eurostat/statistics-explained/index.php/Asylum_statistics (last visited Jul. 2017). 21 Eurostat, “First Instance Decisions by Outcome and Recognition Rates, 1st Quarter 2017”, Asylum Quarterly Report, available at: http://ec.europa.eu/eurostat/statistics-explained/index.php/File:First_instance_decisions_by_outcome_and_recognition_rates,_1st_quarter_2017.png (last visited 21 Nov. 2017). 22 Belgium, Croatia, Cyprus, the Czech Republic, Finland, France, Greece, Germany, Hungary, Italy, Lithuania, the Netherlands, Poland, Romania, Slovakia, Slovenia, and Spain. 23 List of respondents: Belgium: Siemen Buttiëns, Research assistant, KU Leuven; Croatia: Dr Goranka Lalić Novak, Assistant Professor, University of Zagreb & Anamarija Kovac, LL.M, Croatian Law Centre; Cyprus: Constantina Economou, LL.M, George Z. Georgiou & Associates LLC; The Czech Republic: Dr Pavel Pořízek, Head of the Office of the Public Defender of Rights (Ombudsman) & Dr David Kryska, Department of Administrative Law and Administrative Science, Charles University in Prague; Finland: Jaana Palander, Lecturer, University of Eastern Finland & Dr Elina Pirjatanniemi, Professor, Director of the Institute for Human Rights, Åbo Akademi University; France: Dr Jean-Philippe Lhernould, Professor, University of Poitiers; Germany: Michael Schlegelmilch, Research Associate, Max Planck Institute for Social Law and Social Policy & Lars Hillmann, Research Associate, University of Bayreuth; Greece: Dr Chrysafo Tsouka, Associate Professor, National and Kapodistrian University of Athens Law School & Antigoni-Maria Spyropoulou, LL.M, Attorney at Law, Indicated Member from the UNHCR at the Appeals Committees of Asylum & Dr Danai Angeli, Lawyer, Athens Bar Association; Hungary: Dr Antal Örkény, Professor, Eotvos Loránd University of Budapest; Italy: Dr Salvatore Fabio Nicolosi, Postdoctoral Researcher, Human Rights Centre Ghent University and EU Fulbright-Schuman Scholar, Center for Comparative and International Law, University of Michigan Law School; Lithuania: Dr Laurynas Biekša, Associate Professor, Mykolas Romeris University and Ilona Ivašauskaité, PhD candidate, Mykolas Romeris University; The Netherlands: Dr Viola Bex-Reimert, Lecturer, University of Groningen & Veronika Flegar, PhD candidate, University of Groningen; Poland: Dr Barbara Kowalczyk, Faculty of Law, Administration and Economics, University of Wroclaw; Romania: Mihaela Matei, LL.M; Slovakia: Dr Mária Srebalová, Faculty of Law, Department of Administrative and Environmental Law, Comenius University of Bratislava; Slovenia: Dr Grega Strban, Professor, University of Ljubljana & Primož Rataj, Assistant, University of Ljubljana; Spain: Dr Dolores Carrascosa Bermejo, Professor, Comillas Pontifical University of Madrid and Carlos García de Cortázar. 24 Eurostat, “Number of (non-EU) Asylum Seekers in the EU and EFTA Member States, 2014 and 2015 (Thousands of First Time Applicants)”, Eurostat, undated, available at: http://ec.europa.eu/eurostat/statistics-explained/index.php/File:Number_of_(non-EU)_asylum_seekers_in_the_EU_and_EFTA_Member_States,_2014_and_2015_(thousands_of_first_time_applicants)_YB16.png (last visited 11 Nov. 2017). 25 International Organisation for Migration (IOM), Key Migration Terms, webpage, undated, available at: http://www.iom.int/key-migration-terms (last visited Nov. 2016). 26 See Art. 2(b) of the Reception Conditions Directive. 27 Ibid. 28 Ibid. 29 Persons who reside in a State due to their employment but had become unemployed, etc. 30 I. Gordon, K. Scanlon, T. Travers & C. Whitehead, Economic Impact on the London and UK Economy of an Earned Regularisation of Irregular Migrants to the UK, Irregular Migrants Report, London, Greater London Authority, May 2009, 4–5, available at: https://www.london.gov.uk/sites/default/files/gla_migrate_files_destination/irregular-migrants-report.pdf (last visited 21 Nov. 2017). An additional remark needs to be made. Rejected asylum-seekers in some Member States (Germany for example) have the right to stay for a short period (mostly 30 days), but they are in essence refused a continuing right to remain (after the short period has ended). Please see Section 5.2 for more detail. 31 Asylum application means an application for international protection. 32 Art. 32(1) of the Act on International and Temporary Protection (Zakon o međunarodnoj i privremenoj zaštiti), Official Gazette of Croatia, No. 70/15. 33 Art. 32 in connection with Art. 2, point 7 of the International Protection Act (Zakon o mednarodni zaščiti), the Official Gazette of the Republic of Slovenia, No. 22/16. 34 The Ministry of Interior issues a decision on the basis of proposals from the inter-ministerial committee on Asylum and Refugees (Comisión Interministerial de Asilo y Refugio). See Art. 24.2. of Law No. 12/2009 regulating the right to asylum and subsidiary protection (Ley reguladora del derecho de asilo y de la protección subsidiaria), 30 Oct. 2009. 35 The Asylum Service of the Republic of Cyprus, available at: http://www.moi.gov.cy/moi/asylum/asylum.nsf/DMLindex_en/DMLindex_en?OpenDocument# (last visited Nov. 2016). 36 Section 8 letter a) of the Asylum Act (Zákon o azylu) of the Czech Republic No. 325/1999 Coll., 11th Nov. 1999, with amendments. Reportedly the responsible internal organisational unit of the Ministry of Interior is the Department for Asylum and Migration Policy. 37 The Finnish Immigration Service, Art. 116 of the Aliens Act (Ulkomaalaislaki) No. 301/2004 with amendments. 38 The Asylum Service, established under Law No. 3907/2011 on the establishment of an Asylum Service and a First Reception Service, transposition into Greek legislation of Directive 2008/115/EC “on common standards and procedures in Member States for returning illegally staying third-country nationals” and other provisions, 26 Jan. 2011, Art. 1, point 2b. 39 The Office of Immigration and Nationality (OIN), available at: http://www.bmbah.hu/index.php?option=com_k2&view=item&layout=item&id=391&Itemid=666&lang=en (last visited 21 Nov. 2017). 40 Territorial Commissions for the Recognition of International Protection and Sub-commissions located throughout the national territory. 41 Reportedly the Migration Department. 42 Head of the Office for Foreigners. Information by the Head of the Office for Foreigners, Warsaw, Mar. 2015, 1, available at: http://udsc.gov.pl/wp-content/uploads/2014/12/Information-by-the-Head-of-the-Office-for-Foreigners-14.pdf (last visited 21 Nov. 2017). 43 Romanian General Inspectorate for Immigration (IGI), which is the competent body responsible for conducting interviews, analysing the reasons set forth, and decision-making regarding the asylum applications. Source available at: http://igi.mai.gov.ro/detalii/pagina/en/Decision-communication/102 (last visited Nov. 2016). 44 The Migration Office according to The Organisation of Asylum and Migration Policies Factsheet: Slovak Republic, European Migration Network Reports, Jul. 2014, available at: http://ec.europa.eu/dgs/home-affairs/what-we-do/networks/european_migration_network/reports/docs/emn-studies/asylum-migration/24a.slovak_republic_factsheet_update_august_2014_en_version.pdf (last visited Nov. 2016). 45 The Immigration and Naturalisation Service (IND), available at: https://ind.nl/en/individuals/residence-wizard/asylum (last visited 21 Nov. 2017). The decisions are formally made by the Minister of Security and Justice. 46 Section 5, para. 1 of Asylum Act (Asylgesetz), Federal Law Gazette I, p. 1798, 2 Sep. 2008, with amendments. 47 Art. 57(6) of Law of 15 Dec. 1980 relating to the access to the territory, residence, establishment, and removal of foreigners (Wet van betreffende de toegang tot het grondgebied, het verblijf, de vestiging en de verwijdering van vreemdelingen / Loi portant sur l’acces au territoire, le séjour, l’éloignement des étrangers), with amendments. It is a service within the Federal Public Services Home Affairs. 48 Rejected asylum-seekers can appeal the decision to the Appeals Authority according to Law No. 3907/2011, Art. 3(1), and Presidential Decree 113/2013, Art. 34, according to Greek Council for Refugees, Regular Procedure in Greece, Asylum Information Database, undated, available at: http://www.asylumineurope.org/reports/country/greece/asylum-procedure/procedures/regular-procedure (last visited 21 Nov. 2017). 49 The second instance administrative body competent to handle appeals against first instance negative decisions is the Refugee Board, according to the Helsinki Foundation for Human Rights, Regular Procedure in Poland, Asylum Information Database, undated, available at: http://www.asylumineurope.org/reports/country/poland/asylum-procedure/procedures/regular-procedure (last visited 21 Nov. 2017). 50 The Council for Alien Law Litigation, which has exclusive jurisdiction to hear appeals against individual decisions concerning the access to the territory, residence, establishment, and removal of foreigners. 51 Art. 32(2) of the Act on International and Temporary Protection. There are four Administrative Courts in Croatia (in Zagreb, Rijeka, Split, and Osijek). 52 Regional Courts and the Municipal Court in Prague. See s. 32 of the Asylum Act No. 325/1999. 53 The Administrative Court in Helsinki according to s. 193(1) of the Aliens Act No. 301/2004. 54 The Administrative Court of Appeals according to the Greek Council for Refugees, Regular Procedure in Greece. 55 Vilnius Regional Administrative Court. A. Sipavičiene, Decision Making in Asylum Cases and Appeal Process, IOM, Vilnius, 2013, 11, available at: http://www.iom.lt/images/publikacijos/failai/1427878229_2TMODecision%20making%20in%20asylum%20cases%20and%20appeal%20process.%20Situation,%20reelvant%20issues%20and%20reccomendations%20for%20Lithuania.pdf (last visited 21 Nov. 2017). 56 Voivodeship Administrative Court according to the Helsinki Foundation for Human Rights, Regular Procedure in Poland. 57 Art. 54 of the Law on Asylum (Legea priving azilui) No. 122/2006, Official Gazette of Romania, No. 428, 18 May 2006 with modifications. 58 Art. 70(1) of the International Protection Act. 59 This is the case for all administrative proceedings in Slovakia as there is no specialised branch of administrative courts. On the other hand, a specific section of the Slovak Code of civil procedure governs the review of administrative decisions. This section is also applicable to review of decisions in asylum cases. 60 The Supreme Administrative Court has to grant leave to appeal in Finland. Source: Finnish Immigration Service, Appeal to Administrative Court, webpage, undated, available at: http://www.migri.fi/asylum_in_finland/applying_for_asylum/decision/appeal (last visited 21 Nov. 2017). Reportedly, this is done very rarely in practice and the decision of the Helsinki Administrative Court is usually the final decision. 61 An appeal against the first instance courts’ decision is also possible in some cases according to s 78, subsection 3 of the Asylum Act, Federal Law Gazette I, p. 1798, due to fundamental importance of the case, deviation from previous decisions or due to procedural deficiency. 62 Poland is the only Member State with four possible instances issuing a decision or judgment – two instances in administrative proceedings and two instances of judicial review according to Helsinki Foundation for Human Rights, Regular Procedure in Poland. 63 Reportedly, the Supreme Court in Cyprus does not examine the essence of the claim but the legality of the decision. 64 The judgment can be remanded only due to infringement of the law or of substantial procedural requirements, however, the Belgian Council of State does not pronounce on the merits of the case. In other words, all it does is examine whether the ruling was made in accordance with the law and therefore cannot grant refugee or subsidiary protection status. 65 Dutch Council of State (Afdeling Bestuursrechtspraak van de Raad van State). 66 A rejected asylum-seeker is (usually) first granted a period within which he has to leave (i.e. voluntary return period – please see Section 5.2). After this period his residence is “illegal”. 67 Hereinafter male version will be used neutrally for both sexes. 68 Art. 6(4) of the Return Directive. 69 After an asylum procedure a person receives an exit visa (and also may apply for repatriation under the Asylum Act No. 325/1999, which is independent of the voluntary return period in the Return Directive). Only if a rejected asylum-seeker does not respect the time limit in his exit visa, does he fall under the rules of the Return Directive. 70 The return decision is issued together with the rejection of an application, unless special reasons have arisen, serving as grounds for not adopting a decision on removing the applicant from the country. See Art. 98(4) of the Aliens Act no. 301/2004. 71 Reportedly, this would only apply in the case that the person concerned fulfils the conditions for staying in Spain for humanitarian reasons. 72 Art. 303 of the Act on Foreigners (Ustawa o cudzoziemcach, Official Gazette of Poland, No. 1650, 12 Dec. 2013) stipulates various grounds for it. Interestingly, in Poland, a person is ex lege obligated to leave the relevant state territory within 30 days after the administrative decision refusing to grant refugee status or subsidiary protection has become final and binding according to Art. 299(6) of the Act on Foreigners. Only if a person has not left the territory in this time frame, an imposed return decision is issued, after which an addressee has a period of 15–30 days for voluntary return according to Art. 315(1). 73 This is presumably the case in many other Member States. 74 Art. 7(1) of the Return Directive. 75 Art. 74(14) of the Law of 15 Dec. 1980 relating to the access to the territory, residence, establishment, and removal of foreigners. The practice appears to be to grant them a full 30 days. During the time limit for voluntary departure a rejected asylum-seeker is not staying legally on the Belgian territory, however, no coercive measures can be used to enforce the removal. 76 Art. 112(5) of the Law on Foreigners (Zakon o strancima), Official Gazette of Croatia No. 130/11, 74/13. 77 Section 147(a) of the Aliens Act No. 301/2004. According to correspondent Jaana Palander, Guidance of the Finnish Immigration Service states that 30 days is the principal rule (MIG 215-542). 78 Art. 14 of the Legislative Decree of 25 Jul. 1998, No. 286 on “the Consolidated Act of Provisions concerning immigration and the condition of third-country nationals”. 79 Art. 127(1) of the Law on the Legal Status of Aliens (Įstatymas dėl užsieniečių teisinės padeties) No. IX-2206 of Vilnius, 29 Apr. 2004, with amendments. 80 Art. 83 of the Act on Residence of Aliens (Zákon o pobyte cudzincov) No. 404/2011 Coll., of 21 Oct. 2011, with amendments. 81 Art. 70 of Law No. 122/2006 and Art. 82 of the Government Emergency Ordinance No. 194/2002. 82 The average period for voluntary return reportedly is 30 days, which means that a longer period can be stipulated in administrative decisions. 83 A one-month period in principle. 84 According to s 50(2) of the Residence Act (Aufenthaltgesetz), Federal Law Gazette I, p. 1950, 30 Jul. 2004, with amendments) an illegally staying person is required to leave forthwith or, if a period has been allowed for departure, by the end of this period. Forthwith criteria is reportedly dealt with in practice as a 30-day period. 85 A voluntary return period is 28 days, s 62(1) of the Aliens Act (Vreemdelingenwet) 2000, 1 Apr. 2001, with amendments. 86 Ibid., s 50a, para. 4. 87 For the possibility of an extension of a voluntary period, refer to Section 5.5. 88 Art. 60(3) in connection with Art. 67 of the Aliens Act (Zakon o tujcih-ZTuj-2), the Official Gazette of the Republic of Slovenia, No. 50/2011, last amended 16/2017. 89 Art. 147 of the Aliens Act No. 301/2004. 90 Art. 329 of the Act on Foreigners. 91 Art. 60(3) in connection with Art. 67 of the Aliens Act. 92 According to correspondent Elina Pirjatanniemi, the applicant may be removed from the territory of Finland within seven days after the service of the decision if the application has been found to be manifestly unfounded. 93 A case of the Court of Justice of the European Union (CJEU) concerning a risk to public policy is Zh. and O., Judgment, C-554/13, 11 Jun. 2015. The CJEU ruled that Art. 7(4) of the Return Directive precludes a national practice, whereby an illegally staying third-country national is deemed to pose a risk to public policy on the sole ground that national is suspected, or has been criminally convicted, of an act punishable as a criminal offence under national law. Other factors may be relevant in the assessment of whether he poses a risk to public policy, such as the nature and seriousness of that act, the time which has elapsed since it was committed and the fact that concerned national was in the process of leaving the territory of that Member State when he was detained by the national authorities. 94 If there is a risk of absconding, manifestly ill-founded decision or a threat to public or national security, no voluntary period or a period of less than seven days is granted. Art. 22(4) of Law No. 3907/2011. 95 Art. 62(2) of the Aliens Act. 96 Art. 7(4) of Return Directive. 97 Art. 3(7) of Return Directive. 98 Interestingly enough, the Czech Supreme Administrative Court filed a request for a preliminary ruling to the Court of Justice of the European Union (Policie České republiky v. Salah Al Chodor and others, pending Case C-528/15, lodged on 7 Oct. 2015) as to whether lack of objective criteria for assessment of a significant risk of absconding of a foreign national renders detention under Art. 28(2) of Regulation No. 604/2013/EU (Dublin III) inapplicable. The wording of the provision is very similar to the one in the Return Directive. For the Court’s judgment, see: Policie České republiky v. Salah Al Chodor and others, judgment, C-528/15, 15 March 2017. 99 Art. 68 of the Aliens Act. 100 Other milder circumstances are also mentioned that present a risk of absconding, such as illegal entry of a foreigner on Slovenian territory; overstay of a legal stay of less than 30 days; lack of any accommodation options in Slovenia and other milder circumstances based on an individual assessment. 101 Art. 315(3) of the Act on Foreigners. 102 Council for Alien Law Litigation (Raad voor Vreemdelingen-betwistigen), Judgment, No. 126.698, 3 Jul. 2014. 103 Art. 7(3) of the Return Directive. For such obligations under the Reception Conditions Directive (recast) see P. de Bruycker (ed.), A. Bloomfield, E. Tsourdi & J. Pétin, Alternatives to Immigration and Asylum Detention in the EU, MADE REAL report, Jan. 2015, 87-103, available at: http://odysseus-network.eu/publications/alternatives-to-detention-2015/ (last visited 21 Nov. 2017). 104 It is only possible when a removal decision is issued and there is a present risk of absconding, which has to be determined individually. 105 Art. 317 of the Act on Foreigners. 106 Art. 73(6) of the Aliens Act. 107 Art. 62(3) of the Aliens Act. 108 Art. 7(2) of the Return Directive. 109 Reportedly the duration of the voluntary departure period can be extended due to health problems or a court pending case, in which the rejected asylum-seeker wants to appear before the court in person. Pregnant women are, however, not subject to return procedures (i.e. the return decision is subject to suspension) throughout their pregnancy and for 6 months after delivery. The same applies to the elderly. Arts 22, 24(2) and 41 of the Law No. 3907/2011. 110 In Lithuania, it is reportedly extended if the foreigner’s child requires two weeks in order to finish school. The existence of children attending school and being close to finishing it is also a ground for extension in the Czech Republic. 111 Art. 74(14) of the Law relating to the access to the territory, residence, establishment, and removal of foreigners. To obtain an extension, the applicant must submit a motivated request to the Immigration Office. 112 Art. 316 of the Act on Foreigners. 113 All circumstances mentioned – the length of stay, health problems, the existence of children attending school, or the existence of other family, social, or economic ties to the territory of Lithuania – are taken into account when a return decision is issued. 114 Art. 147(a) of the Aliens Act. Reportedly, based on the guidance of the Immigration Service, these special reasons include, but are not limited to, a child being close to completing a schoolyear (MIG-215-542). 115 Proof that the foreigner (e.g. rejected asylum-seeker) has sufficient financial means is also required. Art. 24(2) of the Royal Decree 557/2011 (on the Implementation Rules to the Immigration Act). 116 So called “mandatory prolongation” according to Art. 74(14) of the Law relating to the access to the territory, residence, establishment, and removal of foreigners. 117 Reportedly this is the practice in some counties. 118 Art. 6.3(1) of the Aliens Regulation (Vorschrift Vreemdelingen) 2000. 119 Art. 112(4) of the Law on Foreigners. 120 90 days according to Art. 6.3(2) of the Aliens Regulation. 121 Please refer to Section 5.3. 122 Art. 8(1) of the Return Directive. 123 Art. 74(14) of the Law relating to the access to the territory, residence, establishment, and removal of foreigners. 124 Art. 116 of the Law on Foreigners. 125 Art. 70 of the Law No. 122/2006. 126 Art. 69(1) of the Aliens Act. 127 See M. Schieffer, “Directive 2008/115/EC of the European Parliament and of the Council of 16 Dec. 2008 on Common Standards and Procedures in Member States for Returning Illegally Staying Third-Country Nationals”, in K. Hailbronner (ed.), EU Immigration and Asylum law: Commentary, Munich, Beck, 2010, 1522. 128 European Commission (EC), Evaluation on the Application of the Return Directive, Brussels, EC, Final Report, 22 Oct. 2013, 173, available at: http://ec.europa.eu/smart-regulation/evaluation/search/download.do?documentId=10737855 (last visited 21 Nov. 2017). 129 According to collected data this is foreseen (at the very least) in legislations of Belgium (Art. 74(17) of the Law relating to the access to the territory, residence, establishment, and removal of foreigners), Croatia (Art. 118 of the Law on Foreigners), Finland (Art. 147 of the Aliens Act), Germany (Section 60 of the Residence Act), Lithuania, and Slovenia (Art. 72 in connection with Art. 73 of the Aliens Act). 130 Art. 33(1) of the Convention relating to the Status of Refugees, 189 UNTS 150, 28 Jul. 1951 (entry into force: 22 Apr. 1954). 131 European Convention on Human Rights, ETS No. 005, 4 Nov. 1950 (entry into force: 3 Sep. 1953). 132 Art. 331 of the Act on Foreigners. 133 Art. 84 of the Government Emergency Ordinance No. 194/2002. 134 Vanderbruggen et al., “Factsheet”, 3. See also Art. 47 of Charter of Fundamental Rights of the European Union, OJ C 364/1, 18 Dec. 2000 (entry into force: 1 Dec. 2009). 135 See also K. Weatherhead, “Removing ‘Non-Removables’”, Forced Migration Review, 51, Jan. 2016, 75–76. 136 The ECtHR has been very restrictive in finding violations of Art. 3 ECHR when deciding cases where it was argued that there is insufficient health care in countries of origin. This can be seen from the case N. v. the United Kingdom, Judgment, Grand Chamber, Appl. No. 26565/05, 27 May 2008 and previous case law. Only in very exceptional circumstances, for instance, when a person’s removal would expose a person to a real risk of dying under most distressing circumstances, this would constitute inhuman treatment and in such cases the ECtHR held that compelling humanitarian considerations weighed against an expulsion. See case D. v. the United Kingdom, Judgment, Appl. No. 30240/96, 2 May 1997. A landmark decision in this respect is Paposhvili v. Belgium, Judgment, Grand Chamber, Appl. No. 41738/10, 13 Dec. 2016, for which it is claimed that it has reshaped Art. 3 case-law on expulsion of seriously ill persons by lowering the threshold of application. More information is also available at: https://strasbourgobservers.com/2016/12/15/paposhvili-v-belgium-memorable-grand-chamber-judgment-reshapes-article-3-case-law-on-expulsion-of-seriously-ill-persons/ (last visited Apr. 2017). 137 See S. Peers, “Irregular Migrants: Can Humane Treatment Be Balanced against Efficient Removal?”, European Journal of Migration and Law, 17(4), 2015, 301–302. For an overview see also “Factsheet – Health of the ECtHR”, Jun. 2017, 6–8, available at: http://www.echr.coe.int/Documents/FS_Health_ENG.pdf (last visited Jul. 2017). 138 Art. 74(17) of the Law relating to the access to the territory, residence, establishment, and removal of foreigners. 139 A removal will be postponed only in cases when a person suffers from a disease that makes them unable to be transported. A lower level of health care in the country of origin (or any other destination) is in general not accepted as a reason for postponement of a removal decision by the administrative courts. 140 The alien is in need of basic medical aid, the necessity of which is confirmed by a consulting panel of a health care institution. Art. 40(1), point 11 of the Law on the legal status of Aliens. 141 Art. 64 of the Aliens Act. 142 Art. 83(4) of the Act on Residence of Aliens No. 404/2011. 143 Art. 136 of the Law on Foreigners. 144 There is no legislative ground for it, but it does occur in practice. 145 The Residence Act (s. 60a, subsection 2) uses the term “impossible in fact or in law”. A considerable fact is also transport capacity by the state (Länder) responsible for deportation and “in law” also means due to lack of identity documents. 146 Vanderbruggen et al., Point of No Return, 12. 147 It might be interesting that delays in obtaining the necessary documentation from third countries or lack of cooperation by the third-country national concerned are expressly listed as grounds for extension of detention according to Art. 15(6) of the Return Directive. 148 Vanderbruggen et al., Point of No Return, 5, 12. 149 Ibid., 40. 150 The removal is suspended if the public prosecutor's office or the criminal court considers his temporary presence in the Federal territory to be appropriate in connection with criminal proceedings relating to a criminal offence, because it would be more difficult to investigate the facts of the case without his information. Section 60a, para. 2 of Residence Act. 151 Although this confirmation does not provide the proper status to a concerned individual, it at least provides written proof of the impossibility of their return against law enforcement and other authorities. This is a particularly useful aid in avoiding unlawful detention. Vanderbruggen et al., “Factsheet”, 2. 152 The rules of the Directive do not guarantee that the irregular status of an immigrant will be resolved in all circumstances. See A. Baldaccini, “The EU Directive on Return: Principles and Protest”, Refugee Survey Quarterly, 28(4), 2009, 138. 153 It is issued for a period of six months with the possibility of extension for successive periods of six months. Art. 104 of Government Emergency Ordinance No. 194/2002 and GD No. 898/2011. 154 Section 51 of the Aliens Act No. 301/2004. 155 Art. 60a, para. 3 of the Residence Act. 156 Art. 73(6) of the Aliens Act. 157 M. Heegaard Bausager, J. Köpfli Møller and S. Ardittis, Study on the Situation of Third-Country Nationals Pending Return/Removal in the EU Member States and the Schengen Associated Countries, Brussels, European Commission, 2013, available at: http://ec.europa.eu/dgs/home-affairs/e-library/documents/policies/irregular-migration-return/return-readmission/docs/11032013_sudy_report_on_immigration_return-removal_en.pdf (last visited Nov. 2016). 158 It received less attention than other policy tools, such as the visa policy, border control, prevention of illegal employment, and removal of unauthorized migrants. Nevertheless, the EU funded several large-scale studies, of which the most significant was the REGINE study in 2009, titled “Study on the Practices in the Area of Regularisation of Illegally Staying Third-Country Nationals in the Member States of the EU”. See C. McGovern, Regularisation Programmes – A Tool to Manage Irregular Migration in Europe?, Europe’s Newcomers: The Implications of the Migrant and Asylum System, website, Migrants: The Newcomers, 16 Mar. 2015, available at: https://migrantsthenewcomers.wordpress.com/2015/03/16/regularisation-programmes-a-method-of-addressing-irregular-migration-in-europe/ (last visited Nov. 2016). 159 A. Kraler, Regularisation of Irregular Migrants in the European Union, National EMN Conference ‘Pathways out of Irregularity’, Oslo, 10 Oct. 2011. 160 K. Brick, Regularizations in the European Union: The Contentious Policy Tool, Washington, DC, Migration Policy Institute, Policy Brief, Dec. 2011, 2, available at: http://www.migrationpolicy.org/research/regularizations-european-union (last visited Nov. 2016). 161 Art. 6(4) of the Return Directive. It could be argued that under certain circumstances, following a combined reading of Art. 6, para. 4 of the Return Directive and the Charter of Fundamental Rights of the European Union, a Member State might be under the obligation, and not merely conferred the option, to grant a residence permit to those in an irregular situation. See D. Acosta Arcarazo, “The Charter, Detention and Possible Regularization of Migrants in an Irregular Situation under the Returns Directive”, Mahdi’, Common Market Law Review, 57(5), 2015, 1361–1378. This can also possibly be applied to rejected asylum-seekers. 162 This can refer for example to a one-time measure that is a response to particular circumstances, such as a sudden increase in asylum applications. See Brick, Regularizations in the European Union, 3. 163 A regularisation mechanism can be defined as "any procedure other than a specific regularisation programme by which the State can grant legal status to illegally present third-country nationals residing on its territory". See C. McGovern, Regularization Programs within the European Union: An Effective Tool to Manage Irregular Migration?, United Nations University Institute on Globalization, Culture and Mobility (UNU-GCM), Policy Report, 28 Nov. 2014, 13, available at: http://gcm.unu.edu/publications/policy-reports/regularization-programs-within-the-european-union-an-effective-tool-to-manage-irregular-migration.html (last visited Nov. 2016). 164 M. Baldwin-Edwards & A. Kraler, 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, Final Report, Vienna, International Centre for Migration Policy Development (ICMPD), 2009, 8, available at: http://ec.europa.eu/home-affairs/doc_centre/immigration/docs/studies/regine_report_january_2009_en.pdf (last visited Nov. 2016). 165 These usually provide residence permits to asylum-seekers or to individuals with extraordinary health conditions that will not allow them to travel. 166 These allow family members to either reunite with spouses or children living abroad, or to legally remain in a country together if not all members have residence permits. 167 The idea is to provide the addressee with a temporary permit for residence and work and to have them “earn” the right to have the permit extended or permanent. This can be achieved by gaining points through the fulfilment of various criteria, such as knowing the language of the host country, participating in community activities, having stable employment and paying taxes. One of the advantages of such a programme is that it has the upside to be self-selecting, as only the truly motivated migrants would earn enough points. See Report of the Committee on Migration, Refugees and Population (CMRP), Regularisation Programmes for Irregular Migrants, Parliamentary Assembly, Council of Europe, Doc. 11350, 6 Jul. 2007, 9 and 25. 168 Ibid., 2. 169 It might also be the first step in a journey towards citizenship. Ibid., 9. 170 Brick, Regularizations in the European Union, 2. 171 CMRP, Regularisation Programmes for Irregular Migrants, 21. Overly strict requirements, such as proof of employment or long presence in a country, may also lead to application fraud. 172 Ibid., 1–2, 20. 173 With this in mind, many regularisation programmes require some sort of proof that a person is working and can provide for themselves. 174 It is debatable whether a person who has a legal right to stay (i.e. has legal status) in one Member State will then flee to another Member State. There is no substantial evidence that legalised migrants move to other Member States. See Kraler, Regularisation of Irregular Migrants in the European Union. 175 As an example, this issue can be recognized mutatis mutandis in the rules regarding entry bans. An entry ban that is notified in the Schengen information system (SIS) results in the fact that this person cannot enter any of the Member States. If entry into one of them would be allowed, this person could then move to another Member State, possibly the one which issued an entry ban, as there is an absence of internal border checks between Member States. 176 The actual extent of the claimed pull effect is questionable, and likely to be subject to exaggeration. There appears to be a lack of specific research that has come to detailed conclusions. Nevertheless, one possible example of this pull effect, albeit not due to a regularisation programme, can be viewed in Germany. In late August 2015 Germany declared that it would accept all Syrian asylum-seekers and this might have resulted in asylum-seekers focusing on coming to Germany. Similarly, a regularisation programme in one Member State may change the routes and destination of potential new asylum-seekers. Despite this, there are other factors to be considered, for example the amounts of social benefits (e.g. assistances), as Member States with a higher GDP seem to be desired destinations for asylum-seekers. 177 Brick, Regularizations in the European Union, 2. 178 CMRP, Regularisation Programmes for Irregular Migrants, 15–16. Parliamentary Assembly of the Council of Europe also examined the situation of these persons in Resolution 1483 (2006). 179 Brick, Regularizations in the European Union, 10–17. 180 Eurostat, Asylum Statistics, undated, available at: http://ec.europa.eu/eurostat/statistics-explained/index.php/Asylum_statistics (last visited Nov. 2016). 181 It might be relevant to mention that on 3 Oct. 2016, the UN General Assembly adopted the New York Declaration for Refugees and Migrants (UN Doc. A/RES/71/1) that explicitly mentions consideration of policies to regularize the status of migrants as one of the elements towards a global compact for safe, orderly, and regular migration. See Annex II, point (p) of Art. 8. This might prove to be relevant in the forthcoming years. 182 Children under municipal supervision were considered as no longer being under “government” supervision, therefore not fulfilling the eligibility criteria. J. de Bresser, Dutch Mayors Seek Fairer Children's Amnesty, United Nations University Merit, 20 May 2014, available at: http://www.merit.unu.edu/dutch-mayors-seek-fairer-childrens-amnesty/ (last visited Nov. 2016). 183 McGovern, Regularization Programs within the European Union, 15. 184 Brick, Regularizations in the European Union, 5. Humanitarian based programmes tend to be characterized by longer residency requirements than those which focus solely on labour migrants. 185 Interestingly, in the Czech Republic a rejected asylum-seeker can apply for a long-term stay permit for the purpose of protection on the territory, if they are a victim of a criminal offence of human trafficking or a person whom it was helped to cross the state border illegally (or for whom such crossing was organised). A permit can be issued if their testimony is of great importance to criminal proceedings and if they are cooperating with criminal law authorities. See s 42e, para. 1 of the Act on the Residence of Aliens No. 326/1999. This is a consequence of the transposition of rules of the Council Directive 2004/81/EC of 29 Apr. 2004 on the residence permit issued to third-country nationals who are victims of human trafficking or who have been the subject of an action to facilitate illegal immigration, who cooperate with the competent authorities, OJ L 261/19, 6 Aug. 2004. It is likely that other Member States also have a similar rule, although no such data was sent from the respective national experts. 186 This permit is only issued if there are no suspicions that a foreigner might present a danger to public order and security or internal relations of Slovenia and if there is no suspicion that their stay in Slovenia will be connected to terrorist or other violent actions, illegal informative activities, production or sale of drugs, or committing other criminal offences. See Art. 51(1) of the Aliens Act. 187 Section 67 of the Act on Residence of Aliens No. 326/1999. 188 Art. 124 of the Royal Decree 557/2011. 189 Art. 9ter of the Law relating to the access to the territory, residence, establishment, and removal of foreigners. Medical grounds are also used in order to postpone removal, however medical reasons for regularisation ought to be more severe and persist for a long period. 190 Ibid., Art. 9bis. Because no substantive criteria are listed in the law, several circulars and ministerial instructions, with the intent to create transparency, have introduced criteria, such as unreasonably long duration of an asylum procedure, pressing humanitarian situations, or sustainable local embedding. 191 If a spouse or a child is an EU national, there are many cases, where these asylum-seekers (even if rejected) ought to have a right to reside in the Member State of residence of an aforementioned family member following the cases decided by the CJEU. See cases Blaise Baheten Metock and Others v. Minister for Justice, Equality and Law Reform, Judgment, Grand Chamber, C-127/08, 25 Jul. 2008, and Gerardo Ruiz Zambrano v. Office National del'emploi, Judgment, Grand Chamber, C-34/09, 8 Mar. 2011. Protection under Directive 2004/38/EC can be stronger than under Art. 8 ECHR, therefore, the latter is more likely to be invoked when a family member is not an EU national. 192 See ECtHR, Moustaquim v. Belgium, Judgment, Appl. No. 12313/86, 18 Feb. 1991, where the Court first qualified the deportation of a foreigner as a violation of their right to family life. 193 The principle enables the ECtHR to abandon outmoded conceptions of how terms were originally understood. S. Greer, The Margin of Appreciation: Interpretation and Discretion under the European Convention on Human Rights, Human right files No. 17, Strasbourg, Council of Europe Publishing, Jul. 2000, 19, available at: http://www.echr.coe.int/LibraryDocs/DG2/HRFILES/DG2-EN-HRFILES-17(2000).pdf (last visited Nov. 2016). 194 D. Thym, “Residence as De Facto Citizenship? Protection of Long-Term Residence under Article 8 ECHR”, in R. Rubio-Marín, (ed.), Human Rights and Immigration, Oxford, Oxford University Press, 2014, 107. 195 ECtHR, Sisojeva and Others v. Latvia, Judgment, Appl. No. 60654/00, 16 Jun. 2005 (first section, not final, para. 104). The case concerned an ethnic Russian family who had been living in Latvia for 20 years and whose residence status was not recognized by the Latvian authorities after the break-up of the Soviet Union. Following the judgment of the Chamber of the First Section, the Latvian Government requested that the case be referred to the Grand Chamber. The Grand Chamber granted the request and subsequently decided to strike an application out of its list of cases due to the conclusion that the matter had been resolved. The Latvian authorities allowed the applicants to reside on Latvian territory. See points 97-103 of the ECtHR, Sisojeva and Others v. Latvia, Judgment, Appl. No. 60654/00, 15 Jan. 2007. 196 See ECtHR, Rodrigues Da Silva and Hoogkamer v. the Netherlands, Judgment, Appl. No. 50435/99, 3 Jul. 2006, and Butt v. Norway, Judgment, Appl. No. 47017/09, 4 Mar. 2013. 197 Thym, “Residence as De Facto Citizenship?”, 119–20. 198 ECtHR, Slivenko v. Latvia, Judgment, Grand Chamber, Appl. No. 48321/99, 9 Oct. 2003, para. 96 (emphasis added). 199 Thym, “Residence as De Facto Citizenship?”, 119. Periods of a few months or years usually do not suffice for the development of sufficient “private” life. 200 Ibid., 106. © Author(s) [2018]. All rights reserved. For Permissions, please email: journals.permissions@oup.com

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