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Factsheets

EU Pact on Migration and Asylum

What’s the EU Pact on Migration and Asylum?

The EU Pact on Migration and Asylum is a policy document that sets out the EU’s agenda on migration for the years to come and a package of legislative proposals and recommendations. The Pact was presented by the European Commission in September 2020, with the purpose of “providing a comprehensive approach, bringing together policy in the areas of migration, asylum, integration and border management”.

What’s in the Pact?

The Pact includes five legislative proposals and four recommendations.

The legislative proposals, when adopted, will be binding EU law. They are:

The four recommendations are non-binding instruments adopted by the Commission, which address:

In addition, in April 2021, the European Commission adopted the EU Strategy on voluntary return and reintegration, which is envisaged by the Pact and foresees new EU actions to increase the number of voluntary returns.

What is the Commission proposing?

In short, the Commission is proposing that everyone who enters the EU irregularly, or was disembarked after a search and rescue operation, goes through a mandatory pre-entry screening at the EU external borders. In the pre-entry screening, border officials would carry out security and identity checks; health and vulnerability screenings are possible but are not mandated. This pre-entry screening would also apply to people already in the EU territory, if they entered irregularly.

Furthermore, the proposals introduce mandatory asylum and return procedures at the borders, which could last for a total of 24 weeks or even 40 weeks in “situations of crisis”.

During both the pre-entry screening and the border procedures, people will most likely be held in detention. In the pre-entry screening, detention will be automatic and apply to everyone, without any judicial overview or access to a lawyer, nor any decision on whether detention is necessary and proportional in the individual case. The pre-entry screening would apply to everyone, children and families included, and the border procedures would also apply to children above 12 if they are with their families, or independent of age for “national security” reasons.

The Commission also proposes complicated solidarity mechanisms to manage the arrivals, which would have to be agreed on an annual basis between countries. In particular, it proposes that states can choose to either relocate people in their own territory, or organising and paying for the deportation of people of specific nationalities (for instance, sponsoring states could select nationals of third countries with which they have a bilateral agreement) – a proposal which raises more questions than answers.

The Pact also proposes to reform the EU asylum system, and would replace the Dublin Regulation. See here for more detail from civil society organisations working on asylum.

Lastly, the Pact would exclude access to residence procedures and regular pathways besides asylum. In fact, states would be required to issue a return decision together with the rejection of an asylum application, and would automatically channel into return procedures everyone who does not qualify for international protection, with no possibility to apply for other permits. Default return decisions would also be applied to children, without any evaluation of whether return is in their best interests. Unsurprisingly, the Horizontal substitute impact assessment on the EU Pact on Migration and Asylum, conducted by the European Parliament, highlighted the lack of specific procedural safeguards to ensure the respect of the principle of non- refoulement and the risk of fundamental rights violations.

What does the Pact mean for undocumented people living in Europe already?

Undocumented people living in Europe will be subject to pre-entry screening if they cannot show that they entered Europe regularly. This means that, at any time, they can be apprehended and detained for up to three days, without any safeguards such as free legal aid, judicial review, nor the right to contact their family. At the current state of negotiations (October 2021), it is still unclear whether at the end of this screening undocumented people who have already been living in the EU and who do not apply for international protection (refugee status) will be subject to return procedures at the borders or in the country.

Moreover, people living undocumented in Europe might at any time be uprooted from the country they live in and be transferred to another EU country. This would be possible because of how the return sponsorships work: in fact, states can contribute to organise the return of undocumented people from other EU states, even before a return decision is taken. If the return does not take place within eight months from the beginning of the procedure, undocumented people will be transferred to the sponsoring state. It is still completely unclear what will happen to them in the new country, but the options are all grim: either being detained during a new return procedure, or being stuck in a limbo and forced to live as undocumented in a country where they don’t speak the language, have no social ties or support network. This will also apply to children.

As countries will be able to indicate the nationality of people they intend to return under this scheme, we can expect an increase in discriminatory policing and profiling of people and communities of colour.

What will happen to people who arrive irregularly in the EU and to people disembarked after a search and rescue operation?

They will be immediately detained during the pre-entry screening for up to 5 days (or 10 in “situations of crisis”). At the end of the screening, they will either have access to asylum procedures (which can be either in the territory or at the borders), be channelled into return procedures (in the territory) or be refused entry to the EU territory (although, in practice, they are already physically in the EU) and returned with an even lower set of safeguards.

Asylum border procedures will be applied to people who come from a country with a recognition rate for international protection of below 20%, if there are national security reasons or if they have withheld or provided false information. In this case, the so-called “fiction of non entry” will continue to apply. Asylum border procedures may also be applied to people coming from a “safe country of origin” or “safe third country”.

The only exceptions will be for children under 12 years old and unaccompanied children, except if there are national security reasons. People might also be excluded from the border procedures for medical reasons.

In the asylum border procedures, people can be detained for up to 12 weeks. If the asylum procedure is not completed by the end of this time, they will be allowed to enter the territory. If the asylum application is rejected within the 12 week period, they will be channeled to the return border procedure, during which they will remain detained for a maximum of another 12 weeks. If they are not deported within this time, the return procedure will continue on the territory, where people will be detained under the Return Directive (according to which the maximum duration of detention can be no longer than 18 months in total).

Quite worryingly, the amended Asylum Procedures Regulation proposes that people whose application for international protection is rejected in the context of the asylum border procedure can be “refused entry”. This means that they can be returned at the external borders, with a lower set of safeguards. In this case, article 14 of the Schengen Border Code and the minimum standards set by art. 4(4) of the Return Directive would apply . Notably, an appeal against the refusal of entry does not have a suspensive effect. The possibility to apply this provision to people who have already been on the EU territory for almost 3 months (during the pre-entry screening and the asylum procedure regulation) is extremely concerning.

What about people who don’t qualify for international protection?

Under national legislation, some people who do not qualify for international protection may be entitled to a residence permit or would have access to regularisation procedures or national protection measures different from asylum, including for medical, family, humanitarian or other reasons.

But the Pact foresees the right to asylum as the only possible pathway to regular residence, assuming that everyone else should leave the European Union.

So, in practice, those people who are not granted asylum but who could be entitled to a residence permit other grounds would nonetheless risk being deported, in clear breach of fundamental rights like family life, of the best interests of the child and of the principle of non- refoulement.

At the moment, at least twelve EU member states provide a temporary residence permit on medical grounds; at least five have legislation granting special permits for undocumented victims of domestic violence; at least eight have mechanisms that can regularise children, young people or families; and at least seven have dedicated procedures for stateless people. In practice, the Pact fails to mention when and how any of these permits would be accessible during the new procedures, or indeed that these other residence procedures exist. As the grounds for these permits are not assessed during asylum procedures, hundreds of thousands of people risk either being issued a return decision in violation of their fundamental rights, or pushed into living irregularly .

What is the “return sponsorship” mechanism?

Under the “return sponsorship” mechanism, the “sponsoring” state will facilitate the voluntary return or deportation of an undocumented person living in another country (“benefitting state”), including through return counselling, reintegration assistance, liaising with third countries, and chartering flights. Should the return or deportation not be carried out within 8 months (4 months in situations of “crisis” or risk of crisis), people will be relocated to the “sponsoring country”. Until then, the “benefitting” country will remain responsible for the obligations and responsibilities set out by the Return Directive. States might commit to sponsor returns even before a return decision has been taken.

What will be the main changes in situations of crisis?

The Crisis Regulation foresees different rules, mainly concerning timelines, which would apply in so-called “situations of crisis” and “force majeure”. Situations of crisis are defined as an exceptional situation of “mass influx” compared to the GDP and the population or the risk of an exceptional situation of “mass influx”.

In such situations:

  • the pre-entry screening could last up to 10 days (instead of-5 days),
    • the border procedures would be applied to people coming from countries with up to 75% recognition rate (instead of 20%), and could last for a total of 40 weeks (instead of 24),
    • the grounds for detention are further expanded (for instance, including all situations in which migrants are not cooperating or express intent not to comply with the return measures);
    • In the return sponsorship, people would be transferred to the sponsoring state after four months (instead of eight).

Furthermore, in case of force majeure states would be able to suspend the asylum registrations for up to 4 weeks.

How do the proposals protect children in migration?

The new mechanisms and procedures proposed may end up causing great harm to migrant children living and arriving in Europe.

The proposed Screening Regulation does not guarantee, or even mention, that children would have access to legal assistance or that unaccompanied children would be appointed a guardian. Alarmingly, no provisions are included that safeguard children whose age is disputed. In addition, all children would be detained during the screening procedure.

The Asylum and Migration Management Regulation grants children in families fewer safeguards than unaccompanied children on the assumption that having parents sufficiently protects them from harm. The return sponsorship mechanism would apply to both, but while Member States would have to assess whether the intra-European transfer is in the best interests of an unaccompanied child, no such obligation exists for children in families. Similarly, Member States would have to ensure that an unaccompanied child is “adequately protected” in the sponsoring state, but not so for children in families.

Children will also be detained to a much wider degree than is currently the case. Adolescent children in families may be detained for the same length of time as adults (maximum 40 weeks and 10 days if they go through a screening and an asylum and return border procedure in times of crisis), while international consensus is clear: no child should be detained. The Pact also goes far beyond what is currently allowed by EU legislation (Returns Directive) and jurisprudence, which limit the detention of children for immigration purposes to specific situations (last resort, adapted facilities and for the shortest amount of time possible).

Importantly, the proposals do not ensure that children would only be returned when a return is in their best interests. As with adults, the Pact proposals offer just two possibilities: asylum or return. While return should (in theory) only happen when there is no risk of refoulement, the impact on a child’s rights and wellbeing are not assessed before a return decision is issued or implemented.

Lastly, while the Eurodac proposal includes important safeguards protecting children, important dangers to child rights and children’s wellbeing remain. The safeguards require that:

  • personnel that registers the biometric data of children be trained for that purpose;
    • child-friendly information be provided to children;
    • children’s personal data can be accessed, rectified and erased by the child and/or their

legal guardian;

  • children are accompanied throughout the registration process by an adult family member or guardian or by an independent official trained in safeguarding children’s best interests and their general wellbeing.

However, all children older than six would be fingerprinted and photographed, including for the purpose of (forced) returns. Children may be coerced into complying, although the level of coercion must “respect the dignity and physical integrity of the child” and not include

force. These provisions contradict UN guidance that arguments based on migration control cannot override the best interests of the child and the FRA position that children should not be fingerprinted for return purposes. In addition, the proposals do not include anything on what happens when a child’s age is unclear or contested even though their age will determine whether they are fingerprinted, and whether the above-mentioned safeguards are put in place.

It is clear that the Pact does not adequately protect undocumented and migrant children from harm, and more and better safeguards need to be integrated throughout the proposals and mechanisms they put in place.

For more detailed information, see our Recommendations on Safeguarding Children’s Rights in the Migration And Asylum Pact Proposals.

What about labour migration and social inclusion?

While the Pact includes some promising elements towards inclusion, the significance of labour migration for European economies and societies is not reflected in the Pact, whether we look at the political messaging, resources, proposals, actions, or even word count. On balance, the plans in the area of labour migration are timid and over-shadowed by the focus on returns.

Since the Pact’s publication, the European Commission has been working to fulfil commitments set out. It has held consultations on the next steps on regular migration. A Skills and Talent package, including a revision of the Long-term Residents Directive and a review of the Single Permit Directive, and setting out options for developing an EU Talent Pool is expected in late 2021. Negotiations between the European Council and European Parliament on the Blue Card Directive have also concluded.

The EU needs to take real action to increase decent labour migration pathways across sectors and skill levels, including in those sectors currently characterised by low wages, where many migrant workers are carrying out essential work and unable to access permits. It needs to tackle labour exploitation.

Until now, the legislative proposals that accompanied the Pact are rather counterproductive to these objectives, increasing precarity of migrant workers as described above. But it remains to be seen if the forthcoming actions – in particular the review of the Single Permit Directive – will be ambitious in achieving the EU’s potential to address these challenges and promote decent work for labour migrants in the European Union.

What does PICUM recommend?

PICUM has developed extensive recommendations on the different files, as well as separate recommendations on the impact of the Pact on children’s rights. Our recommendations are available in English, French and Spanish at this link.

In short, our recommendations focus on the following:

  • Preventing the automatic detention of asylum seekers and undocumented people at the external borders. PICUM advocates for the end of immigration detention. People in an irregular situation should have access to community-based solutions and support through case management.
    • Maintaining access to existing residence permits regulated at national level. Asylum and return are not the only options. National legal frameworks foresee a number of different permits, for instance for humanitarian, medical, family or other reasons: these permits should remain accessible in law and practice.
    • More and better safeguards for children are necessary. Children should not be detained; unaccompanied children and children in families need to be protected to the same degree; children whose age is unclear or disputed must be given the benefit of the doubt unless and until conclusive proof confirms their (adult) age; unaccompanied children should be assisted by a guardian as soon as they are found; and children should only be returned when return is found to be in their best interests through a best interest procedure.
    • Ensuring NGOs’ right to access border areas and preventing criminalisation.
    • Upholding the right to effective remedy, including an automatically suspensive appeal.
    • Compulsory health and vulnerability screening and access to health care during the screening procedure.
    • Preventing discriminatory policing and apprehensions.
    • Deleting the return sponsorship scheme.

Migration policies, detention and return

  1. How many undocumented migrants are there in Europe?
  2. How does one become undocumented?
  3. How many people are being detained across Europe?

How many undocumented migrants are there in Europe?

There is no reliable updated estimate of the number of undocumented migrants in Europe; the most robust source was made more than a decade ago. In 2008, between 1.9 and 3.8 million irregular migrants were estimated to reside in the EU. The majority arrived through regular pathways – with a permit to study or work, to seek family reunification or to seek asylum – and later lost that status*. Irregular border crossings are a very small proportion of the overall migration towards the EU: in 2019, EU countries issued a total of 15 million Schengen Visas, while the number of detected irregular border crossings was 141,846. 20.9 million third country nationals were regularly residing in the EU in 2019.

Sources: Frontex, Risk Analysis for 2020, p. 9; European Commission, Visa statistics for consulates, 2019

*Data, reports and available updates can be found at http://irregular-migration.net/. A recent attempt in 2019 by the Pew Research Center to update these figures is based on flawed data and methodology since the estimates include people with various different statuses, including asylum seekers, who are regularly residing in Europe.

How does one become undocumented?

The most common ways of becoming undocumented are to lose a job or other grounds for a residence permit or to be born to undocumented parents. Some people are also undocumented if they enter the EU without a visa.

Entering in the EU regularly can be particularly difficult depending on one’s country of origin. Under EU law, individuals from all but two African countries (Mauritius and the Seychelles) and most Asian countries need a visa to enter in the Schengen area, even if they come for periods below 90 days.

In addition, one’s country of origin strongly affects the likelihood of being issued a permit for remunerated activities (including work permits and researchers): in 2018, 51 % of the permits issued for remunerated activities were issued to nationals of ten countries from Central and Eastern Europe (non-EU), while only 5 % were granted to nationals of 55 countries in Africa.

*An Airport Transit Schengen Visa enables travellers to change flights at a Schengen airport, but does not allow them to leave the international transit area.

How many people are being detained across Europe?

Data collected by the Global Detention Project shows that more than 100,000 people are detained for immigration reasons each year in the European Union. However, it is difficult to identify trends as most countries only publish data every two to three years, and some countries never publish them. Based on the available data, 149,406 people were detained for immigration reasons in 2016 in 23 EU countries. In 2017, 20 countries detained 151,664 people, suggesting that the number of immigration detainees may be increasing.

These numbers include children, families, and individuals with pre-existing situations of vulnerability, such as physical or mental health diseases, disabilities, and psychological traumas. Detention is imposed, often for repeated or prolonged periods, with the more or less explicit purpose of deterring irregular migration and in order to increase returns – despite broad evidence on both its harmfulness and ineffectiveness.

The Regulation on Community statistics on migration and international protection (as amended in June 2020) invites EU Member States to establish pilot studies collecting data on the number of people in return procedures in immigration detention or subject to alternative measures (art. 9(3)(g)).

How many children are detained for immigration reasons?

In the 2019 Global study on children deprived of liberty, Independent Expert Manfred Nowak found that at least 330,000 children are detained throughout the world for migration-related purposes per year.

In Europe, 6,555 children were detained in 2016 in the 14 EU countries that provided data. In one case, a child was detained for 195 days. The EU Fundamental Rights Agency has found that EU member States which tend to detain children more often (France, Greece, Malta, Poland and Slovenia) witnessed an increase in child detention between 2018 and 2019.

However, countries often do not collect adequate data, and even when they do, the methodologies adopted differ greatly, making any comparison very hard. For instance, in some countries, children who are detained with their parents are not counted separately.

What does the EU say about the detention of undocumented migrants?

The EU Returns Directive (2008) – currently under review – states that alternatives to detention should always be applied whenever possible- In addition, the European Commission clarified that EU member states should develop and use alternatives to detention, including providing individual coaching (case management).

The Court of Justice of the European Union further clarified that detention can only be applied based on the analysis of individual circumstances and is only legitimate as long as there is a reasonable prospect of removal. Entering or staying in Europe irregularly, or the lack of identity documents, is not a sufficient ground for detention.

What does the law say about the detention of children?

Children should never be detained. UN experts agree that detaining children based on the children’s or their parents’ migration status is a human rights violation and is never in the best interests of a child. Moreover, well-established evidence shows that even short periods of detention have a long-lasting impact on children’s physical and mental health and their development.

The EU is still far from implementing these recommendations in its law, and a number of existing and proposed instruments, including the new EU Pact on Migration, still allow child detention, including potentially for prolonged periods of time.

Are there any alternatives to detention? Do they work?

Alternatives to detention which allow people to remain in the community while working on their migration procedures are more effective, humane and cheaper than detention. Individuals are more likely to comply with migration decisions if they are treated fairly, they can meet their basic needs and all available options have been considered. Case management allows migrants to receive holistic support and receive the information they need to take active steps towards case resolution. The evaluation of three pilot projects applying casemanagement-based alternatives in Bulgaria, Cyprus and Poland has showed positive results in terms of compliance, with 86% of individuals remaining engaged with immigration procedures and 99 % reporting improved ability to participate in informed decision making.

How many people have been returned to their countries of origin?

In 2019, 162,278 people were returned from EU member states to third countries (EU28).*

The European Border and Coast Guard Agency (Frontex), assisted EU member states in the deportation of over 50,000 people between 2007 and 2019, including to conflict-ridden countries such as Afghanistan and Iraq. There are plans for Frontex to coordinate the deportation of 50,000 people per year from 2024 onwards. To make it possible, Frontex’s budget has been constantly increasing over the past years, from 6 million Euro in 2005 to 460 million in 2020. In 2027, it is expected that Frontex will have received 5,6 billion Euro by European taxpayers.

See Eurostat datasets on Asylum and Managed Migration. Please note that the dataset on voluntary returns (migr_eirt_vol) does not include the people who leave on their own accord/outside of assisted voluntary return programmes.

What does the EU say about the returns of undocumented migrants?

Over the past years, the EU has been consistently focusing on increasing returns. To give an example, the term “return” appears more than 100 times in the Commission Communication on the EU Pact on Migration and Asylum – while the term “rights” appears only 14 times.

This approach fails to recognise that for many undocumented people, return is not the only option – in fact, in some cases it cannot be an option at all. According to European Commission estimates, every year 300,000 people cannot be returned. This can be for a number of reasons, including because of:

The EU focus on returns is not a realistic response to the complexities of migration, and will likely only lead to an increase in irregularity.* On the contrary, ensuring access to alternative ways to solve their migration status is key to address a complex reality, allow people to integrate in the community and avoid situations of legal limbo and exclusion from basic rights.

Providing individualised support and counselling (case management) can help people assess the different options and solve their migration status, be it through return, moving to a third country or regularising their position. A programme in Utrecht, The Netherlands, that supports undocumented people to solve their migration case, has shown that 91 % of participants have resolved their status: 59 % were regularised and integrated in the local community, and 19% were returned.**

*This has already happened in Italy, where the abrogation of the humanitarian permits by the Salvini Decrees in 2019 pushed 120.000 to 140.000 people into irregularity.

**Jan Braat (2019), Presentation at the International Conference organised jointly by the Council of Europe, the European Commission and the European Migration Network, 4 April 2019, in Agora, Council of Europe, Strasbourg, France. Available here.

What happens after forced returns?

Forced return (or deportation) is an extreme and often harmful measure that breaks economic, social and family ties. Civil society organisations and researchers have noted a major gap in understanding of what happens to people after they are deported*.

What we do know is that the experience of deportation has an impact on the lives of parents and children, on future choices and opportunities. PICUM has collected testimonies of people who have been returned from the EU to African countries. This collection includes stories of children deported alone to countries they have no memory of, people sent to countries where they had never been in their life, and parents left unable to provide for their children.

*Existing research almost exclusively focuses on voluntary returns. See, for instance: World Bank Group (2019) “Supporting the Effective Reintegration of Roma Returnees in the Western Balkans”, available here.

Non-refoulement in the context of the EU Pact on Migration and Asylum

The EU Pact on Migration and Asylum is built on the assumption that all people who arrive or reside in the EU irregularly and whose asylum applications are unsuccessful should immediately return or be deported. This aligns with the EU’s ongoing effort to boost the rate of returns via EU migration policies.

In reality, people may have other grounds for residence than international protection, including on compelling human rights grounds that do not allow for any derogation, exception or limitation, such as the principle of non-refoulement. Yet, the proposed recast Return Directive and EU Pact on Migration and Asylum would practically close or heavily restrict pathways through which people who cannot be deported could access a residence status, in line with non-refoulement and other human rights considerations.

What is the principle of non-refoulement?

Non-refoulement is a cornerstone of international human rights law, which prohibits states from removing people from their jurisdiction to a place where they would be at risk of serious human rights violations, including persecution, torture, ill-treatment or other fundamental rights violations. Non-refoulement is also enshrined in in Article 78 (1) of the Treaty on the Functioning of the EU, and in the EU’s fundamental rights regime, as reiterated in articles 18 and 19 of the Charter of Fundamental Rights of the European Union. Non-refoulement is also specified in secondary EU law, such as the EU asylum legislation and the EU Return Directive.

Non-refoulement is an absolute principle, which cannot be breached for any reasons. It requires cases to be examined individually by the state. Each deportation decision should be reviewed in light of this principle and the appeal against a return decision which could lead to a violation of this principle should always have a suspensive effect. Non-refoulement also prohibits the return of people back to states which could further deport them to a country where they could be at risk of such violations.

In addition to the prohibition of ill-treatment and torture, human rights jurisprudence clarifies that the principle of non-refoulement also requires states to assess the impact of return procedures on individuals’ medical condition and overall health situation, including mental health. The principle of non-refoulement also precludes states from deporting individuals when there are risks of breaches of different human rights violations, including serious forms of gender-based violence, prolonged solitary confinement and degrading living conditions.

What makes people who cannot qualify for asylum non-returnable?

The principle of non-refoulement is broader than the grounds for obtaining international protection under EU asylum legislation. According to the EU Qualification Directive, individuals applying for international protection under EU law can be granted either refugee status or subsidiary protection. Refugee status, which is also enshrined in international law, is granted if a person has been or has a risk of persecution because of their “race, religion, nationality, membership of a particular social group or political opinion.” In addition, EU law protects people who could suffer serious harm as defined by article 15 of the Qualification Directive. However, there remain certain circumstances under which a person might be considered non- returnable, yet they are unable to access refugee status and subsidiary protection.

Under international and EU law, there are several human rights reasons for which people who do not qualify for international protection cannot be deported, such as the principle of non-refoulement, protection of family and private life, the best interests of the child, the prohibition of arbitrary detention and protection on the grounds of statelessness. In most countries, these considerations fall outside of the scope of the asylum procedure. In addition, there can be practical reasons, outside of individual control, for which return and deportation might be practically impossible. For instance, people might not be able to obtain a valid passport, or they might be unable to travel due to medical reasons. For all this reasons, it is crucial to conduct an additional separate assessment before a return decision is issued.

How could the EU Pact on Migration and Asylum affect the principle of non-refoulement?

The EU Pact on Migration and Asylum is built on the assumption that all people who arrive or reside in the EU irregularly and whose asylum applications are unsuccessful should immediately return or be deported. The proposals for a Screening Regulation and the amended Asylum Procedures Regulation (APR), as well as the recast Return Directive proposed in 2018, go one step further in this direction, attempting to entrench and operationalise this principle throughout the EU’s immigration and asylum procedures. The proposals are currently in the final stages of the negotiations between the European Parliament and the Council. When adopted, they will become binding EU law. If the provisions currently negotiated are adopted, the full application of the principle of non-refoulement will be at risk.

Among the novel elements introduced by the Pact, the main setbacks in terms of non-refoulement concern:

  • the new rules on return decisions for people who are refused entry or whose asylum application is rejected (see question 4 below);
  • the proposed return border procedure, which creates disparities and differential treatment for rejected applicants (see question 5 below);
  • the limited procedural guarantees that would make it easier for affected people to lodge an appeal in order not to be deported or access an alternative status under human rights law and national law (see question 6 below).

Why is the push to link asylum and return procedures problematic?

Two key proposals in the Pact on Migration and Asylum and the proposed recasting of the Return Directive foresee asylum or return as the only two procedures applicable to undocumented people:

  • The Screening Regulation introduces mandatory pre-entry screening at the EU external borders. In the Commission’s proposal, which is maintained in the Council’s position, individuals who do not apply for international protection or do not fulfil entry conditions should be subject to return or refusal of entry (Art. 14).
  • The Commission’s proposal and Council position on the amended Asylum Procedures Regulation (APR) also require Member States to issue a return as part or at the same time of the decision rejecting an application for international protection (Art. 35a).

The European Parliament (EP) presented amendments on both the Screening Regulation and the amended APR that, if adopted in the final text, would uphold non-refoulement. The EP clarifies that issuing a refusal of entry or a return decision should be without prejudice to the possibility to authorise entry on humanitarian grounds, on grounds of national interest or because of international obligations, foreseen in the Schengen Borders Code and under national law. It also recalls that return should not lead to risks of violations of the principle of non-refoulement and other fundamental rights under the Charter of Fundamental Rights and other EU and international obligations.

Adopting the EP position would represent an essential safeguard to ensure that national permits on humanitarian, medical or other compassionate grounds remain accessible to people who are not eligible for international protection. However, this does not substitute a full assessment of the person’s protection needs and eligibility for other permits prior to issuing return decisions.

  • The Commission proposal for a recast Return Directive also introduces the obligation to issue a return decision in the same act or at the same time as any decision ending a legal stay of a third-country national, including the decision rejecting an application for international protection (Art. 8(6)). While one could argue that art. 6(4) of the Return Directive, which foresees the possibility to grant at any stage a permit for humanitarian, compassionate or other reasons would still apply, in practice this would only apply after a return decision has already been issued, because states would be obliged to do so in conjunction with asylum application rejections.

In all of the cases mentioned above, unless there is an ex-officio assessment, the only way for the applicant to demonstrate the risk of refoulement and prove eligibility for other permits would be to lodge an appeal against a return decision, which presents substantial practical challenges. Member states should comprehensively assess fundamental rights considerations before a return decision is issued, including establishing whether third country nationals fulfil the criteria to apply for an autonomous residence permit or other authorisation granting a right to stay. This would vastly reduce the number of unenforceable return decisions and prevent human suffering.

Non-refoulement and the ‘return border procedure’

The Commission’ proposal for the amended Asylum Procedures Regulation (APR) envisions an expanded and, in some cases, mandatory use of border procedures, despite the existence of fundamental rights and feasibility concerns. Individuals whose application for international protection is rejected in the context of the asylum border procedure (art. 41) will be issued a return decision or a refusal of entry and channelled into a ‘return border procedure’ (art 41a), which will likely entail prolonged detention with fewer safeguards and no access to alternative permits. Applicants continue being subject to the ‘fiction of non-entry’ (although individuals may be physically present within a member state’s territory, they are not regarded as having officially entered that territory). This remains unchanged in the Council’s general approach.

The introduction of a return border procedure in the APR raises several serious concerns. Firstly it introduces differential treatment between applicants whose application is rejected in the context of the asylum border procedure – who would be automatically channelled in the return border procedure – and all the other rejected applicants who fall under the scope of the Return Directive. A return border procedure as the one proposed, carried out under the fiction of non-entry and in detention or detention-like conditions, raises serious concerns as to the possibility to apply adequate safeguards to ensure that applicants have access to remedies and legal assistance to challenge a return decision or demonstrate the risks they would face upon return. The European Parliament’s position introduces limited improvements, including a mandatory period of voluntary departure of 25 days, and limiting detention only where a reasonable prospect of return exists.

The scenario in which people whose application is rejected in the context of the asylum border procedure are issued a refusal of entry is equally problematic. According to the Commission proposal and Council position, they could be returned with an even lower set of safeguards, corresponding to the minimum standards set by art. 4(4) of the Return Directive. This would deprive the applicants of crucial safeguards, such as the possibility to have a suspensive effect in case they appeal against the refusal of entry. The Parliament’s position is the only one that requires member states to fully apply the Return Directive (and therefore the regular return procedure) also to people who have been issued a refusal of entry. This would be a fundamental guarantee for people who have already been on the EU territory for almost three months (during the pre-entry screening and the asylum border procedure).

Which changes in the procedural guarantees might harm non- refoulement?

In scenarios in which people are issued a return decision without a procedure to examine their protection concerns outside of international protection, the only way to access other permits would be to appeal against the return decision. Forcing people to seek judicial remedies as the only way to enforce their rights goes against the principle of efficiency and will likely drain the already-limited resources of many judicial systems. Yet, the Pact proposals restrict access even to this last-resort option.

  • During the Screening Procedure it will be almost impossible to access a lawyer, especially if the screening is conducted only in proximity to the border or remote locations (this is exacerbated for unaccompanied children, who may not be appointed a guardian during the screening procedure);
  • The proposed Asylum Procedures Regulation and recast Return Directive introduce extremely short time limits for appealing against the rejection of the asylum application and the issuance of a return decision. In addition, these proposals do not provide for the automatic suspensive effect of the appeal, which means that people could be deported before a decision on their appeal is taken.

Being able to remain in the country is an essential part of the right to remedy against a return decision. If applicants were to be sent back to third countries, this would clearly hinder their right to be heard, to legal assistance and information. Moreover, there are risks that this would lead to irreparable harm whereas the return leads to violations of the principle of non-refoulement, to serious breaches of the right to health or to violation of the right to family life.

What are other reasons for which voluntary return and deportation might be impossible?

There are various reasons and obstacles that can prevent the removal of individuals from a country in addition to non-refoulement.

Considerations relating to the protection of private and family life, in line with the European Convention of Human Rights (ECHR – art. 8) and the EU Charter of Fundamental Rights (art. 7), could override a return decision. Both the European Court of Human Rights and the Court of Justice of the EU have an established jurisprudence that requires states to assess the existence of family ties and particularly the interest of children against immigration considerations.

Under the UN Convention on the Rights of the Child (art. 3) and the EU Charter on Fundamental Rights (art. 24), before issuing a decision on return, states are required to consider, as a primary consideration, the best interests of each child affected by the decision. This is the precondition to any return of any child, whether they are unaccompanied, separated or within a family, and requires specific procedures to be implemented in every decision-making process.

Statelessness is another factor to consider. According to the UNHCR Handbook on Protection of Stateless Persons (2014), if a stateless person cannot acquire or reacquire nationality through a simple, quick, and non-discretionary procedure, or if they do not have permanent residence status in a country of previous habitual residence where immediate return is possible, their return would be considered unlawful.

Practical reasons or technical obstacles, such as the lack of travel documents, may impede the removal process. Medical reasons can also be a hindrance. Frontex’s “Code of Conduct for return operations and return interventions coordinated or organized by Frontex” (art. 8) states that return operations can only occur if the returnees are “fit to travel” and requires member states to provide a medical examination of the returnee prior to the return.

Additionally, protection concerns arise when individuals face the prospect of being returned or pushed back to a country that is not their country of origin or prior habitual residence, such as in cases of refusal of entry at the EU external borders. Such returns would violate the principle of non-refoulement, which prohibits the return of individuals to places where they may face persecution, torture, or inhuman treatment. Other fundamental rights considerations may also play a role, on the basis of a risk of fundamental right violations other than the prohibition of torture and ill-treatment. In Othman v. UK, the European Court of Human Rights found that the deportation of an individual to a country in which they would face a violation of article 5 ECHR (right to liberty and security) and article 6 ECHR (right to a fair trial) would represent a breach of the European Convention on Human Rights.

What are the alternatives for people who don’t qualify for international protection?

The EU focus on returns is not a realistic response to the complexities of migration, and will likely only lead to an increase in irregularity. On the contrary, ensuring access to alternative ways to solve their migration status is key to address a complex reality, allow people to integrate in the community and avoid situations of legal limbo and exclusion from basic rights.

The obligation to issue a return decision while rejecting an asylum application closes access to residence permits outside asylum which are currently available under national law. For instance, more than half of EU member states provide a temporary residence permit on medical grounds; at least five countries have legislation granting special permits for undocumented victims of domestic violence; and at least eight countries have regularisation mechanisms for children, young people or families. As a consequence, several people who would have access to options for regularisation under national legislation (including humanitarian permits) would risk being deported nonetheless, leading to risks of violations of fundamental rights including family life and non-refoulement.

Ensuring that a return decision can only be issued after it is assessed that the applicant does not fulfil the conditions to apply for a residence permit or other authorisation offering a right to stay for compassionate, humanitarian or other reasons under Member States legislation and that their return would not lead to risks of violations of the principle of non- refoulement, the best interests of the child, and other fundamental rights obligations under the Charter of Fundamental Rights and other EU and international obligations.

If I would like to know more, what can I read?

Do you have any question?
Please contact Silvia Carta (silvia.carta@picum.org).

Regularisation and access to a secure residence status

Some definitions

‘Undocumented people’ or ‘undocumented migrants’ are people whose residence is not recognized by the country they live in. They have not yet been able to obtain a residence permit or citizenship because of restrictive migration and residence policies. Many have had residence permissions linked to employment, study, family, or international protection, but those permits were either temporary or very precarious and their validity expired. There are also children who are born to undocumented parents and inherit this precarious residence status.

Regularisation’ refers to any process or procedure through which someone can obtain a residence status from a relevant government authority authorising – ‘regularising’ – their stay in the country they residence in. The person applies for these procedures from inside the country, including when residing irregularly, in contrast to residence and work permits which have to be applied for from another country. Two main subsets exist: programmes, which have a limited time period in which to apply, and ongoing mechanisms, with applications accepted on a rolling basis.

‘Regularisation’ is also the moment that an undocumented person obtains a residence status for the country they live in.

Why is regularisation important?

Undocumented people are part of our communities. Chances are everyone has met undocumented people, even if they did not realise it. Undocumented people are neighbours and classmates, parents, spouses and children, breadwinners and caretakers.

But because undocumented people live without a regular residence status, they face forms of exclusion and risk which are harmful to their well-being. Undocumented people live, and usually work, for years while experiencing insecure housing, abuse at work, poverty and fear. Living and growing up undocumented requires a tremendous amount of resilience, and the uncertainty about the future, constant stress of making ends meet and risks of being uprooted from their lives, negatively impacts people’s health. Growing up undocumented affects all aspects of a child’s life, from education, to housing, to family dynamics, and can have long-term effects on the child’s wellbeing and development. Being excluded from the rites of passage that are part of the transition to adulthood – graduating, learning how to drive, getting married, making enough to take care of your family – impact young people’s well-being, identity and sense of belonging at a crucial time for their development.

Governments and policy makers urgently need to address the harm experienced by people when they are undocumented. One of the key policy tools is regularisation. It is necessary for countries to have a range of residence procedures that can be applied for from within the country, to respond to the real and diverse needs of migrants and society alike. In-country residence procedures, including regularisation mechanisms and programmes, are a necessary part of a fair, humane, and effective migration system and a welcoming, vibrant, and just society.

Getting a secure residence status is the primary concern of most undocumented people. It is rightly seen as the most direct way to living a life of dignity and safety. It should not surprise anyone that regularisation is a priority demand of undocumented communities and civil society alike.

What happens to people who are regularised?

Regularisation is a life-changing event. Once regularised, a person can work officially, study at university and go to the doctor when they’re sick. They can go for a coffee or do something as ordinary as take the bus without worrying it could lead to a life-changing confrontation with law enforcement. They can stand up for themself and others when someone tries to abuse or exploit them, without fearing it will lead to detention and deportation. Children can go on a school trip abroad, go to university, get a student job and progress through life at the same pace their friends do.

Living and growing up undocumented means living under stress and uncertainty, and, once regularised, people are able to breathe, plan their lives and build their future.

However, a lot depends on the provisions attached to the regularisation. If only a temporary residence permit is issued, this relief can be short-lived as people may become undocumented once again. If the permit is attached to a particular employer, there can be risks of exploitation. If family members are not regularised at the same time, the anxiety for them and risks of family separation continue to weigh on people’s mental health. Regularisation procedures have to be well-designed and implemented for the benefits to be enjoyed by all (see question 8).

What happens to society when people are regularised?

In addition to the direct impact on people’s lives, prospects and well-being, governments and society at large also benefit. Regularising undocumented people reduces inequality and social exclusion because people are more able to participate in all the economic, social and cultural facets of the society they live in. They feel safe watching their children put down roots and bond with their peers. It also provides governments with information about the resident population and labour market, and strengthens trust in state authorities among migrant communities.

Countries’ finances also benefit from regularising undocumented people. Operation Papyrus, a 2017-2018 programme that regularised 1,663 adults and 727 children in the Swiss canton of Geneva, generated a benefit of at least 5.7 million Swiss francs (approximately 5.2 million euros) for the cantonal social insurances by the end of 2019.

When a government fails to introduce fair and effective regularisation procedures, it leads to unnecessary bureaucracy and pressure on the courts systems. When people cannot apply for regularisation and can only appeal against orders to leave the territory, judges must then process these appeals. People may be applying for residence permits that are not meant for them, simply because it is the only one available to them. This also causes people who are undocumented unnecessary anxiety, has a massive impact on their wellbeing and the wellbeing of their children, and wastes their time and financial resources. In short, when countries have good-quality regularisation procedures in place, they benefit by having stronger connections to local communities and communities that trust they will be treated fairly.

What European countries have already regularised undocumented people?

The most comprehensive study on regularisation programmes and mechanisms in the EU is the REGINE study (2009), which identified that 24 of the 27 EU Member States implemented regularisation programmes or mechanisms between 1996 and 2008, and some several times. An estimated total of 5.5 to 6 million people were regularised in that time. 43 regularisation programmes were implemented in 17 EU Member States in those twelve years, involving 4.7 million applicants, of which at least 3.2 million were regularised.

More recently, a study by the European Commission’s European Migration Network found that 60 ‘national protection procedures’ (as distinct from international protection, and most of which we would call regularisation mechanisms) existed in the 24 EU Member States, the UK and Norway surveyed at the end of 2018. The survey included procedures based on humanitarian grounds, exceptional circumstances, medical grounds, childhood, non-refoulement and climate change. It did not include residence statuses for victims of crime or trafficking.

Regularisations, especially regularisation programmes, have been used with different objectives in mind and often reflect the government’s broader approaches to equality, migration management or the economy. Regularisation has, for instance, been used both as a response to an acute economic challenge and as a response to a failing of the wider migration system. Italy’s 2020 regularisation programme for agricultural workers in the face of the Covid-19 pandemic is an example of a government response to the economy, while Sweden’s regularisation programme for aged-out unaccompanied children and Ireland’s 2022 regularisation programme are examples of a program addressing a broader migration policy issue.

Countries neighbouring the European Union have also regularised undocumented people, including in the OSCE region. For instance, Kazakhstan regularised approximately 165,000 undocumented workers from Commonwealth of Independent States (CIS) countries through a 2006 programme.

It is clear that governments across Europe have seen regularisation as a legitimate, proactive policy measure to meet their social and developmental objectives, as well as human rights obligations. However, many of the schemes showed flaws in their design that created new challenges and suffering or meant they did not reach the people they were supposed to. Learning from past regularisations, there are clear ways to avoid such pitfalls and have inclusive and successful regularisations (see question 8).

Does the EU allow regularisation of undocumented people?

Yes, European Union law allows Member States to regularise the residence status of anyone on their territory. More specifically, the 2008 Return Directive, one of the main EU laws addressing the situation of undocumented people, underlines that undocumented migrants can at any moment be granted an “autonomous residence permit (…) offering a right to stay for compassionate, humanitarian or other reasons” by Member States (art. 6). This was important to provide EU-wide legal recognition and space for the whole range of regularisation programmes and mechanisms that different governments implement (see questions 4 and 7). Importantly, in 2019, the European Parliament encouraged Member States to provide residence permits to people stuck in “administrative limbo.”

In addition, the following EU directives include provisions for residence permits for certain undocumented people who have been victimised:

For more on residence permits for victims of crime in Belgium, France, Germany, Greece, the Netherlands, Italy, Poland, Spain, Switzerland and the United Kingdom, see our 2020 report Insecure Justice? Residence permits for victims of crime in Europe

Have any EU countries regularised undocumented people due to the COVID-19 pandemic?

For undocumented people, the COVID-19 pandemic and the lockdown measures have exacerbated the many challenges undocumented people already faced. PICUM’s 2020 survey shows that the main concern for undocumented people during the pandemic was the loss of income due to the interruption of work, combined with the impossibility to access state support like unemployment benefits. This meant savings quickly ran out and people depended (solely) on grassroots support, like food parcels, financial gifts, etc. Another prevalent concern was the impossibility to keep social distance, as many undocumented people live in crowded precarious settings, including small private housing, informal settlements, and detention centres.

At least three countries – Italy, Portugal, and Spain – have implemented temporary regularisation measures or made existing regularisation procedures more flexible because of the COVID-19 pandemic.

For a detailed explanation of what they did and an overview of other measures taken by countries because of COVID-19, see our March to August 2020 overview and our blogpost on the Italian programme. For more information on COVID-19 and undocumented people, visit our dedicated webpage.

When can somebody be regularised?

As countries have the prerogative to establish in-country residence procedures and regularisation schemes (see question 5), they also have the prerogative to establish their grounds, conditions and the overall design of the procedure (see question 8).

Broadly speaking, we can distinguish three types of grounds: those that are based on economic activities (i.e., existing or potential employment of the undocumented person), long residence, integration and connections with society, and other human rights-related grounds. The latter groups a non-exhaustive set of grounds, from respecting the principle of non-refoulement, to medical grounds, to the best interests of the child, family unity, or being a victim of crime. Most countries do not have residence statuses on each of these grounds but have some of them or combine several grounds for regularisation into one type of permit and procedure.

For more on regularisation schemes available to children, families or youth in Belgium, France, Greece, Ireland, Italy, Luxembourg, the Netherlands, Norway, Spain and the United Kingdom, see our 2018 Manual on regularisations for children, young people and families. The manual also includes methods for change and policy recommendations.

For more on residence permits for victims of crime in Belgium, France, Germany, Greece, the Netherlands, Italy, Poland, Spain, Switzerland and the United Kingdom, see our 2020 report Insecure Justice? Residence permits for victims of crime in Europe.

Why do we need regularisation procedures on other grounds? Are asylum procedures not enough?

No, asylum procedures are not enough. The refugee status determination procedure, which is the core of international protection (asylum) procedures, evaluates whether the person has been or has a risk of persecution because of their “race, religion, nationality, membership of a particular social group or political opinion,” or would suffer serious harm as defined by article 15 of the EU Qualification Directive.

What is usually not considered in the refugee status determination procedure is:

  • whether it’s in the best interests of the child’s development and long-term well-being to live in the country or a third country;
  • whether people might face risks of serious harm in the country to which they would be returned (which might not be their country of origin) (i.e principle of non-refoulement);
  • whether their health might prevent their return or whether (their) serious health needs can be met in the country of return;
  • whether they might have strong private or family ties in the country (in particular, but not only, for people who have been living in the EU for years);
  • whether they might qualify for other national-level residence permits; or
  • their skills, previous employment, and potential to participate in the labour market.

In short: asylum procedures should not be the only in-country residence procedure because they serve a very limited purpose.

Do the existing regularisation schemes work well or not?

For a regularisation scheme to work effectively, quickly, humanely and be fair, it must have the below characteristics. This applies to both temporary programmes and structural mechanisms.

  1. Undocumented people themselves should be able to apply, and the permit itself should not depend on others, like a spouse, parent or employer. This will reduce dependency on employers and risks of exploitative or violent relationships.
  2. Civil society, including migrants’ associations, are crucial partners for the successful implementation of any scheme. They should be involved from the design to the implementation and evaluation of the scheme.
  3. Decisions should be based on clear, objective criteria. Reasons for refusal should be documented and argued.
    • Wholly discretionary procedures create confusion and may give false hope or, conversely, deter people from applying, because it is not clear who could benefit. They also tend to be applied differently depending on the political inclination of the government in power.
    • A number of years of residence should be sufficient grounds for regularisation. When deciding how long that should be, governments should consider a shorter period for children, families with children and those who have grown up in the country.
    • Other complementary criteria should be developed in consultation with local civil society to meet local realities and needs.
  4. Decisions should be made in an independent and impartial way and be informed by experts relevant to the criteria to be assessed.
    • For instance, doctors with the relevant specialisation should be involved in decisions on regularisation claims based on medical grounds, while country of origin experts should be involved in the assessment whether the person runs the risk of human rights violations in the country of return (cf. grounds for stay based on non-returnability because of a risk of refoulement).
  5. The procedure needs to be accessible in practice. That means that a good procedure is not bureaucratic, burdensome or expensive.
    • It should be feasible and reasonable for undocumented people to produce the proof that the government requires. Given that undocumented people try to limit their exposure to government instances for fear of deportation, governments should also be flexible when defining what constitutes proof, especially of stay or work. For instance, a previous employment relationship could be demonstrated through a combination of messages, photos, testimonies, and knowledge, when formal proof like a written contract or social security payments are not available.
    • Governments routinely require a fee to be paid by the applicant or the employer upon application. However, most undocumented people experience poverty, and fees especially high fees – make them vulnerable to predatory lenders and exploitative employers. Fees should be minimal and affordable for someone with income below the minimum wage. Fee waivers should also be in place; Belgium, for instance, waives the application fee for children.
  6. Several procedural safeguards should be in place, including free legal aid and information on the criteria and process should be provided throughout; the procedure should include the possibility to appeal; and adults and children should be heard (or have the possibility to be heard).
  7. Undocumented people usually have very restricted access to services because of their status. They may also fear that their irregular immigration status could be transmitted by service providers or the justice system to immigration authorities if they try to access services or justice. A temporary status that grants access to services, justice and the labour market should be provided during the application process to prevent and alleviate suffering and promote inclusion.
  8. The resulting residence permit should be secure and long-term, and count towards citizenship. It should not depend on anyone else, like a spouse, parent or employer.
  9. Regularisation programmes should be flanked by permanent mechanisms and accompanied by measures to support the applicants and address the causes for irregular stay and work.
    • For instance, the Swiss Operation Papyrus included public campaigns to encourage formal employment of domestic workers, labour market controls to ensure working conditions were being met once workers were regularised, and measures to ensure that those regularised would not remain isolated but have support, for example to find affordable French classes.

If I would like to know more, what can I read?

Reporting obligations and ‘firewalls’

Learn more about terms like ‘irregular residence status’ and ‘undocumented migrants’ on this page.

What are reporting obligations?

Reporting obligations are laws or policies that require public authorities and service providers, such as healthcare workers, teachers, and social service employees, to report undocumented migrants to the public authority responsible for migration control, which might include police, border guards, immigration offices. Thus, ‘reporting’ refers to the act of sharing a person’s personal data, particularly their residence status, with the authorities responsible for migration control.

In some countries like the United Kingdom, there are also specific situations in which private service providers (e.g. banks) might be requested to share personal data about non-nationals with authorities, in a way that can also lead to immigration enforcement. There are sometimes clear exceptions to such duties, for example, for teachers, or medical professionals. However, the exception might not apply to the non-medical/administrative staff working in health care facilities (such as in Germany).

Do reporting obligations violate human rights standards?

Yes. Requiring public authorities, public or private service providers to report undocumented people to the migration authorities violates international and European human rights law, including the following rights:

  • Right to equality and non-discrimination: Reporting obligations constitute direct discrimination based on residence status.
    • In 2016, the Council of Europe European Commission against Racism and Intolerance called on state parties to ensure “no public or private bodies providing services in the fields of education, health care, housing, social security and assistance, labour protection and justice are under reporting duties for immigration control and enforcement purposes.”
    • Reporting obligations can also lead to increased discrimination against migrants who have valid residence permits, and racialised people, including citizens.
  • Right to privacy and data protection – Reporting obligations also constitute a violation of the right to privacy and data protection enshrined in the EU Charter of Fundamental Rights (article 8) and the EUGeneral Data Protection Regulation.
  • Right to health: Under international human rights law, states have a duty to ensure the right to health by taking concrete steps towards realizing universal health care, as well as the preconditions for health.
    • Article 35 of the EU Charter of Fundamental Rights further states that everyone has the right to access preventive health care and medical treatment under the conditions established by national laws and practices.
  • Right to education: Children’s right to education, enshrined in several international and EU conventions, isalso harmed when administrations or teachers are required to report pupils’ residence status.

What are the consequences of reporting obligations?

Reporting obligations have a wide range of negative consequences:

  • Fear and marginalisation: Undocumented people often avoid seeking help from public services or reporting crimes due to fear of immigration enforcement – being issued with an order to leave the country and lose everything they have worked for, and potentially be separated from family members, locked up and/or made to leave the country by force (deportation). This leads to further marginalisation and isolation from essential services like healthcare, education, and housing.
  • Health risks: Lack of access to health care results in untreated health conditions, which can worsen over time, and develop to pose life-threatening risks to the person. It is costlier both for the individual and for society when health conditions are not dealt with at an early stage. Ensuring access to healthcare for everyone, regardless of residence status, is crucial for promoting both individual and public health overall.
  • Violence, abuse and exploitation: Fear of immigration enforcement often prevents undocumented people from reporting abuse in personal relationships or in the workplace to the relevant authorities. Reporting is often a pre-requisite to access certain services, protections and remedy. Denying access to protection and remedy violates the person’s rights, and traps them in situations of violence and exploitation. In fact, this denial can even trigger violence and exploitation, as people take advantage of undocumented people knowing that they cannot turn to authorities for help.
  • Ethical dilemmas for professionals: Employees in sectors like healthcare, education and labour inspection face conflicts between their primary duty to care for patients, students or workers, and their obligation to report undocumented migrants. This can undermine their professional integrity and the trust of service users. Associations of health professionals have taken a strong position in favour of preserving their independence and resisting efforts to involve them in immigration enforcement, such as the UK Royal College of Midwives (2019) and the Standing Committee of European Doctors (2024).
  • Erosion of trust: Reporting obligations erode trust between communities and public institutions. When undocumented migrants fear interaction with public services, it hampers efforts to build cohesive, trusting communities, which is vital for public safety, and to provide effective services to the local population.

Racial profiling: Implementing rules targeting undocumented people often results in racial or ethnic profiling, perpetuating prejudice and discrimination. Racialised people, including citizens, are more likely to be questioned about their residence status and even denied access to certain services, support or remedies. Already in 2012, research by EU Fundamental Rights Agency highlighted that migrants are more likely to be victims of hate crime and other forms of abuse and violence.

Which countries have reporting obligations in place?

There is currently no comprehensive mapping of reporting obligations in Europe.

We know that, in Germany, the 1990 Act on Foreigners obliges all public sector workers and offices to report undocumented people to immigration authorities (para 76). This law was replaced by the Residence Act in 2004, which is the current legislation where this provision is included (section 87). While undocumented migrants have the same legal entitlements as asylum seekers to health services, Section 87 of the German Residence Act requires all civil servants, including social welfare offices, to notify the immigration authorities or police when they obtain information about someone without a valid residence permit. The only exception is for schools and other educational and care establishments. Social welfare offices – who manage cost coverage and reimbursement of health services – must report undocumented people who approach them to obtain coverage for health care expenses. Although undocumented migrants are entitled to limited medical services (Section 1 Paragraph 1 Nos. 5, 4 and 6 of the Asylum Seekers Benefits Act), reporting obligations hinder access in practice. Due to these various legal contradictions undocumented migrants are in effect only entitled to emergency health care services.

While there is currently no comprehensive mapping, a 2023 Swedish Parliament report found that various EU countries have national provisions requiring some civil servants to report undocumented people to immigration authorities. (The report “Rapport från utredningstjänsten informationsskyldighet beträffande personer utan tillstånd” is not available online but can be sent upon request).

Moreover, a 2021 report by the Fundamental Rights Agency on severe labour exploitation mapped out the duty of labour inspectorates to report to police or immigration law enforcement authorities in 25 EU Member States and found that in 20 Member States, labour inspectorates report irregular migrants to police or immigration authorities either by law, internal documents, or practice.

Are some countries introducing new reporting obligations?

Some countries are considering introducing measures to increase data sharing obligations, notably:

  • Sweden: The government is exploring a widely contested proposal to oblige all public sector workers to report undocumented people they come in contact with to immigration enforcement and/or police. In November 2024, the government presented the outcomes of a public inquiry outlining how a potential new law could oblige some public sector workers to denounce undocumented people they come in contact with to the immigration authorities. According to the inquiry, the Swedish government should oblige the following governmental agencies in Sweden to automatically report undocumented people to the Police Authority as they come in contact with them: the Public Employment Service, Social Insurance Agency, Prison and Probation Service, Enforcement Agency, Pensions Agency and Tax Agency. The Swedish police may then pass on the information to the Migration Agency or the Security Service. It also proposes that the Swedish Economic Crime Authority and the Prosecution Authority should be obliged to provide information upon request from an enforcement agency. The inquiry proposes exemptions for health services, schools and social services (see also PICUM’s press release).
  • Finland: In its 2023 programme, the Finnish government is also considering the expansion of the obligation to denounce undocumented people.

How common is reporting in practice?

Across Europe, the nature, extent and method of personal data sharing depends on the public authorities and sector. In countries with such obligations, it is quite common that data shared is used by immigration authorities for immigration enforcement (i.e., issuing orders to leave the territory, detaining the person, launching deportation proceedings) or for notifying authorities about outstanding medical bills (for example in the United Kingdom). Even if there is no formal requirement to report immigration status, data sharing can still happen informally or in an ad hoc manner. Furthermore, reporting obligations create a climate of fear which leads to people with an irregular migration status not to seek out access to services such as healthcare.

How have reporting obligations been received?

There is often widespread resistance among professionals and civil society to reporting obligations. Even when the measures are put in place, some professionals practice civil disobedience and refuse to abide by the rules, as they deem them contrary to their values, roles and professional ethics and obligations. For example, in Sweden, in 2022, over 4,000 health care workers pledged to commit civil disobedience and refuse to report their patients should a reporting obligation be implemented in the healthcare sector. When reporting obligations exist, professionals and civil society are often working hard to have them repealed or at least introduce specific safeguards (also known as ‘firewalls’, see below).

Where have reporting obligations been successfully challenged?

In some countries, reporting obligations have successfully been challenged following efforts by wide segments of society (often times involving professionals, institutions as well as elected officials):

  • Italy: In 2009, during discussions on the Security Package, the government proposed to require healthcare professionals to report undocumented migrants. In response, civil society and medical organisations launched the campaign ‘Forbidden to report: We are doctors and nurses, not spies!’ (Divieto di segnalzione. Siamo medici ed infermieri, non siamo spie!). The reporting obligation on health professionals was excluded from the final bill.
  • United Kingdom: In 2012, the government introduced set of policies aimed at creating a hostile environment for undocumented people. The government also pushed several data-sharing arrangements within the National Health Service (NHS) and externally with other public services, that enable patient data from the NHS to be used for immigration enforcement purposes. In 2018, the government suspended the sharing duty of the National Health Service with the immigration authorities (Home Office) after warnings from MPs, doctors’ groups, and health charities that the policy deterred patients from seeking NHS care and had led to people dying.
  • France: Labour inspectors are responsible for checking work permits during inspections but resist sharing information for immigration enforcement. There has been significant pushback from inspectors and criticism from the International Labour Organisation (ILO) regarding joint operations with immigration authorities. A 2006 circular promoting such cooperation, reinforced by later policies, led the ILO to issue recommendations, arguing these joint operations violate the Labour Inspection Convention by undermining inspectors’ independence. In response, the government established “specialised labour inspection sections” to handle cases of irregular work, leaving most inspectors to focus on upholding workers’ rights without involving immigration enforcement.

What are ‘firewalls’?

A ‘firewall’ separates immigration enforcement activities from public service provision and systems, such as healthcare, education, social welfare, labour inspection, or justice. Firewalls ensure that individuals can access these services and interact with competent authorities without fear of migration-related repercussions, such as arrest, detention, or deportation.

Firewalls also safeguard people who have a precarious or uncertain residence status that might avoid interacting with authorities or accessing certain services, in case they would face questioning, denial or even revocation of their status as a result. For example, many migrant workers become undocumented because their residence permits are often linked to their employer. If they complain against their employer, they can lose their job and therefore lose their permission to live and work in the country. As such, firewalls protect all migrant workers from immigration enforcement, whether they have dependent status or are undocumented.

Firewalls are crucial because they allow undocumented migrants to seek assistance, access services and exercise their rights, without fear that it will result in immigration enforcement. This helps in upholding fundamental rights obligations, promoting public health and safety, employment regulations, and other public social objectives.

To be effective, ‘firewall’ safeguards need to be set out in law, policy and practical measures.

For example, in Germany (also see section above “Which countries have reporting obligations?”), civil society organisations have strongly advocated for a firewall in healthcare. Among different actions, Doctors of the World Germany led a campaign supported by over 80 organisations (“GleichBeHandeln”) to have this obligation repealed. In 2021, Gesellschaft für Freiheitsrechte e.V., together with over 30 civil society organisations in Germany, submitted a complaint to the European Commission alleging a breach of the EU Charter of Fundamental Rights and EU data protection law. The complaint was renewed in 2024. Despite a 2021 government pledge to remove the reporting duty, and high expectations for reform, there has been little progress. The UN Committee on the Elimination of Discrimination against Women expressed concern in 2023 that Germany has no real intention of changing the law on reporting obligations.

Where do firewall policies exist?

In most countries, people can access public education and health services without their personal data being shared for immigration enforcement purposes. However, even if reporting is not required or systematic, it can still happen in practice. To avoid this, there need to be clear safeguards in law and policy. These should prohibit data sharing between public services and immigration enforcement (“firewalls”) and/or use of personal data collected through public service provision for immigration enforcement purposes.

Examples of explicit firewall policies include:

  • Belgium: The Flemish administration for education sent round a circular in 2003 clarifying that undocumented children should not be reported to the police or immigration office while enrolling in and attending primary or secondary school.
  • Netherlands: The national ‘free in, free out’ policy, introduced in 2015, allows undocumented people to safely report abuse to the police.
  • Spain: Undocumented people can report gender-based violence to police without risking migration enforcement. They can also register at the town hall (‘empadronamiento’) to access healthcare and education, with a strict firewall ensuring their personal data is not shared with migration authorities.

Undocumented children

How many undocumented children are there in Europe? Where do they live? What does it mean to be undocumented?

There is no reliable estimate of the number of undocumented children in Europe (likewise, there is no current reliable estimate of undocumented migrants in the EU). Some national level attempts have been made to give a credible estimate to the numbers of undocumented children on the national level. For instance, between 190,000 and 241,000 undocumented children are estimated to live in the UK, with most of them based in London. In 2019, about 9 percent of people found to be irregularly present in EU Member States were children.

The majority of undocumented people, including children, live relatively settled lives. A survey of 1,000 undocumented people living in Ireland found that 75.5 percent lived in Ireland for more than five years, for example. Of the 185 children whose parents were surveyed, 68 percent were born in Ireland.

Undocumented children can live very different lives to each other, however. Some do live in encampments and move from city to city. And while most undocumented children live with their parents, some do not. These children are “unaccompanied children” who live without their parents or legal guardian and should be granted a guardian to advocate for and protect their rights.

Whatever their personal situation, their lack of a secure residence status impacts most, if not all, facets of their life. Undocumented children often live in inadequate and unsafe housing, very likely live in poverty, cannot enjoy the same basic services other children in the EU can, and experience chronic and toxic stress – all of which harms their mental and physical health and development.

Term Child

We use the term “child” as defined by article 1 of the UN Convention of the Rights of the Child: “a child means every human being below the age of eighteen years unless under the law applicable to the child, majority is attained earlier.”

How do they become undocumented?

Children can become undocumented for different reasons and often change statuses during the course of their childhood and youth. A child’s residence status is usually dependent on their parent’s status, and children can become undocumented if their parent loses their residence or work permit. Undocumented children can also be born in the EU to undocumented parents. Unaccompanied children (those living without their legal guardian) may be undocumented because their asylum claim or other residence procedure has failed, or because they did not lodge one. Major shifts in policy, like Brexit, can also cause children to become undocumented.

Some countries, such as France, do not require children to have a residence permit. For them, their undocumented status becomes a reality when they turn 18 (see also question 6 and 7).

Can undocumented children go to school? Can they go to a doctor?

Children’s rights are defined in the United Nations Convention on the Rights of the Child (CRC), and enshrined in both the Treaty of the European Union and the EU Charter on Fundamental Rights – all of which apply irrespective of a child’s residence status.

However, the reality differs from country to country. In all EU member states, it is compulsory for children to attend schooling for at least nine years. Yet in many countries, the legislation and policy governing compulsory education refers to “all children”. Depending on the country, this implicit inclusion of undocumented children results in limitations within the education system: undocumented children may not be able to take official exams, receive certification for studies completed or undertake vocational training courses.

Laws regarding access to health care for undocumented children at the national level vary enormously across Europe. In most EU countries, undocumented children receive health care under the same conditions as undocumented adults, with no extra protection. Emergency health care cannot be denied in any EU country. However, children’s health may suffer generally due to a lack of continuous care, lack of access to specialist and mental health care, and due to conditions related to living in an irregular migration situation, such as poor housing conditions, stress, etc.

Furthermore, undocumented children and families often hesitate to reach out to service providers, including medical professionals, due to fear that the immigration authorities would be informed about their presence if they seek help. Such practices are not allowed under the EU General Data Protection Regulation. Service provision and immigration enforcement measures should therefore be clearly separated, ensuring a so-called “firewall”, to assure

that children and families with an irregular status have access to their rights without fear for detention, deportation or separation.

Irrespective of whether undocumented children can go to a doctor or not, having an irregular or precarious residence status gives rise to issues around identity and belonging. At its most basic level, it makes planning for the future very difficult. Undocumented children and youth have often testified of the difficulties they face and the hope they cherish to contribute fully to the country they live in.

Do European countries deport children?

Some countries, like Italy, protect all children from deportation (forced return), while others only deport those who are accompanied by their parents or guardians (including Belgium, Czechia, France, Germany and Ireland). While EU regulations allow the forced return of unaccompanied children, nearly half of European countries do not forcibly return children who are unaccompanied.

In 2019, 162,278 people were returned from EU member states to third countries, at least 4,050 of which were children (these data are for the EU28 but they do not specify whether the children were unaccompanied or accompanied). It is also possible that even more children were returned than specified in the data, as most member states do not report age-differentiated data.

There are also high numbers of children who are given orders to leave the territory: at least 21,045 children received an order to leave the territory in 2019 (EU28).

While children should only be returned to a country if a life in that country is in their best interests in the long run, no European country has a fully-fledged best interests procedure to determine this. Various studies have shown the serious impact of forced returns on children. For example, one in three child returnees interviewed in Kosovo had symptoms of post- traumatic stress disorder, according to Unicef research. Furthermore, research by Save the Children showed that 75% of children deported to Afghanistan did not feel safe during their return, with more than half reporting instances of coercion or violence – and this includes children who returned voluntarily.Testimonies by people who have been deported attest to the traumatic impact that the whole process has on individuals – many of whom include children.

How many children are being detained in Europe?

Children should never be detained for immigration purposes. UN experts agree that detaining children based on the children’s or their parents’ migration status is a human rights violation and is never in the best interests of a child. Moreover, well-established evidence shows that even short periods of detention have a long-lasting impact on children’s physical and mental health and their development.

However, the EU is still far from implementing these recommendations, and existing and proposed legislation, including the new EU Pact on Migration, uphold and even increase child detention, including potentially for prolonged periods of time.

Although there is no official comprehensive data on immigration detention in Europe, in 2016 6,555 children were detained in 14 EU countries. Some children were detained for 195 days (6.5 months). In 2020, the EU Fundamental Rights Agency found that EU member states which tend to detain children more often (France, Greece, Malta, Poland and Slovenia) witnessed an increase in child detention between 2018 and 2019.

However, countries often do not collect adequate data, and even when they do, methodologies differ greatly, making any comparison very hard. For instance, in some countries, children who are detained with their parents are not counted separately.

Can undocumented children be regularised?

Yes and no, depending on the country they live in and their ability to overcome practical and

financial barriers.

All countries have the freedom to develop residence procedures, for instance based on work, family unity, child rights, victimhood, humanitarian needs or other grounds. These in- country residence procedures exist in addition to international protection procedures (such as the asylum procedure which may lead to a refugee status or subsidiary protection status). Some countries have developed structural regularisation mechanisms or launched one- off programmes specifically for children or young people who have aged out. For example, France does not have residence requirements for children and has a number of regularisation mechanisms that entitle them to regularise their status at 18 based on private and family life.

Norway1 and The Netherlands both had small, one-off regularisation programmes for children in 2013.

However, even when a residence procedure exists, regularising one’s residence status is often mired in difficulty. Procedures are complex, ever-changing, expensive and long and the outcome is difficult to predict because decisions are often discretionary. Decade-long procedures are common in the UK, and procedures cost up to £2389, for instance. Because of these barriers, many children and young people are unable to regularise their residence status, even when procedures exist.

There is no EU-wide overview of regularisation mechanisms for children and aged-out young people (yet), nor is there EU-wide data on how many children and aged-out youth have been able to regularise their status.

What happens to (undocumented) children when they turn 18?

Undocumented children who turn 18 face challenges that are commonly referred to with the term “ageing out.” By “ageing out” we refer to the situation where children lose rights and protections when they turn 18. This is the case for (unaccompanied) children provided with a temporary regular or tolerated status until they turn 18, who often lose this status and the access to services and protection from forced return linked to their age or status.

Up until the age of 18, children have rights as enshrined in the UN Convention on the Rights of the Child. However, this means that when a child turns 18, they no longer have access to those rights and associated services. Practical obstacles to a safe and supported transition into adulthood will most likely include discontinued access to education, financial support and, in case of unaccompanied children, no further (legal) support through a guardian. Additionally, unaccompanied children may lose their right to reunite with family, if enrolled in the asylum procedure without a final decision before they reach adulthood.

Undocumented children living with their parents also experience “ageing out” when they lose the various rights and protections they had as children. This can include access to education, housing, health care, family unity and access to child-specific residence procedures.

It is therefore crucial that children are prepared for the loss of rights linked to their coming of age, and are supported during a transitory period, lasting into adulthood.

What’s missing from the media when discussing undocumented children?

Although migration receives media attention, some issues concerning undocumented children, their families and youth seem underreported.

The many undocumented children living with their parents remain mostly invisible. Their invisibility in the media is reflective of EU and national-level policies and funding frameworks, which focus more on unaccompanied children than on children who are with their parents or other caregivers. The impact of migration policies on children, especially the forced return of children, thequality of return and residence decisions and the impact of the interoperability initiative (which links different EU databases for migration purposes, to the detriment of privacy concerns) on children all remain vastly underreported.