Regularisation of undocumented migrants: how to make it work

Regularisation is any process through which someone can obtain a residence permit to stay in the country they already live in. People can apply for these procedures from inside the country, in contrast to residence and work permits which have to be applied for from another country.

Countries throughout the world, including in the EU, have regularised people living irregularly on their territory, either through temporary programmes or through ongoing mechanisms. Among the most recent regularisation measures adopted in the EU, we can cite programmes in Italy (2020), Portugal (2020) and Ireland (2022). Most EU member states have regularisation mechanisms for victims of crime, children or young people, seriously ill people or for people who cannot return to their country of origin.

Regularisation is a key policy tool to address the harm experienced by people when they are undocumented. But for regularisation to work effectively and fairly, it must meet several criteria.

1.   Undocumented people themselves are able to apply, including children.

People should be able to apply independently. Regularisation mechanisms and programmes that are driven by or depend on employers or life partners can lead to exploitation. It often happens that employers charge their employees for sponsoring the application, or workers accept exploitative conditions because their application depends on their employer.

2.   Civil society is involved from design, through implementation and evaluation.

Civil society organisations, including migrants’ associations, are crucial partners for effective regularisations, and should be involved as such from the outset, in the design, implementation and evaluation of measures. This helps make sure regularisation schemes are effective, feasible and adapted to the local context.

3.   The procedure is accessible.

Procedures need to be accessible and not too bureaucratic, burdensome or expensive. Administrative fees, for instance, are an important barrier because most undocumented people live in poverty. The proof and documentation required should also be reasonable considering the living experience of undocumented people.

4.   Decisions are based on clear, objective criteria. Reasons for refusal are documented and argued.

Eligibility criteria should be clear, not arbitrary or too onerous to prove. A number of years of residence should be sufficient grounds to regularise people, at least in cases of children and young people.

Decisions should be made on the basis of clear, objective criteria.

5.   Decisions are made independently and impartially.

Decisions should be taken 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 of whether the person runs the risk of human rights violations in the country of return. Child protection specialists and psychologists should be involved in decisions concerning children.

6.   Procedural guarantees are in place.

People should be informed throughout the process, have access to free legal aid and have a right of appeal in case their application is rejected.

7.   A temporary permit is issued during the application process.

Residence procedures can be very long, and without a permit, people’s vulnerability to exploitation, poverty, isolation, and mental ill-health will continue. The temporary residence permit must grant access to services, justice and regular work, to promote the inclusion of the undocumented person during the process, and ensures governments respect fundamental rights.

8.   The resulting residence permit is secure and long-term.

Regularisation applications should result in independent, secure, and long-term residence permits that give access to the labour market.

9.   Temporary regularisation programmes are flanked by permanent mechanisms.

Temporary regularisation programmes should be flanked by ongoing regularisation mechanisms. Both should be accompanied by measures that support the applicants and/or address the root causes of irregular stay and work. For instance, support measures could include language classes when some language competence is required for the regularisation.

Find out more about regularisation schemes below:

Cover: Keira Burton – Pexels

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