In March 2020, Italy’s Minister of Agriculture, Teresa Bellanova, called for the regularisation of undocumented workers – a step that many within and outside of the EU found surprising. A government official that calls for the regularisation of undocumented workers? Some found it unseemly. However, regularising undocumented people makes economic, social and political sense and European countries have been doing it for years.
A taboo that isn’t one?
The impression that regularisation is taboo in the EU was solidified in 2008, when France, which held the Presidency of the EU at the time, proposed a ban on large-scale regularisations. Countries such as Germany, France, Poland, The Netherlands, Denmark, Austria and Ireland were against one-off regularisations (although many had held them in the past), while Italy, Greece and Spain were in favour. To achieve compromise amongst differing views amongst EU member states, the European Council recommended that Member States only do case-by-case regularisations “for humanitarian and economic reasons.”
While the decision to enact a regularisation programme or mechanism is ultimately implemented at the member state level, several EU directives foresee access to residence permits for particular groups, be it victims of domestic violence, people in return procedures or victims of trafficking or exploitative working conditions.
The most comprehensive study on regularisations to date shows that 24 of the 27 EU Member States implemented regularisation programmes or mechanisms between 1996 and 2008. PICUM’s own research shows that countries understand that they can meet their social and developmental objectives, as well as human rights obligations, by developing ways to regularise people – for instance, children and young people or victims of crime.
And why not? Developing ways for undocumented people to regularise offers countries tangible advantages. Countries receive economic benefits through increased tax revenues and social security payments, a better understanding of their resident population and labour market and the opportunity to better regulate working conditions, health and social services. Regularisation also can help increase migrant communities’ trust in governments and institutions, reduce inequality and social exclusion, empower migrants and their families and reduce their vulnerability to exploitation and abuse.
COVID-19 gives an additional reason to countries to grant secure, long-term residence statuses, as some scientists predict that societies around the world will have to live with COVID-19 for the next two years before everyone is vaccinated or immune. Protecting everyone makes sense.
Measures taken by countries in response to the pandemic
Protection is what Portugal had in mind when they decided to grant people with a pending residence application a temporary residence permit during the Covid-19 pandemic. The decision came after nineteen civil society organisations, mostly socio-cultural associations of Nepali, Pakistani, Brazilian and Bangladeshi people, had called out the need to safeguard the rights of workers who had started a regularisation process and of people with a residence permit that would expire during the lockdown.
The Portuguese measure is an important step forward: until 1 July 2020, tens of thousands of migrants are able to access health care, social services, unemployment benefits and the labour market on the same footing as Portuguese citizens. A simple “stub” proves that they submitted a residence permit request before the lockdown started and grants them access to their rights.
But not all can benefit. SOS Racismo has estimated that roughly 80,000 to 100,000 undocumented people cannot benefit from the measure, including tens of thousands of Sub-Saharan African workers who were not able to submit a residence permit application before the start of the lockdown.
Italy has gone another route. The regularisation programme that was adopted at the end of May as part of a broader 55 billion euro stimulus package reflects the government’s aim to address acute shortages in the Italian labour market that the COVID-19 pandemic caused. It focuses exclusively on the agricultural sector, domestic and care work and grants temporary residence permits along two tracks.
In the first track, employers can submit an application to conclude an employment contract with a foreign national on the territory or to declare an existing irregular employment relationship. In the second track, people whose residence permit expired after 31 October 2019 and was not renewed or converted into another permit can apply for a six-month permit to look for work. In both cases, the worker needs to have been in the country since before the start of the lockdown on 8 March 2020 and an administrative fee is due.
Italy’s approach does contain important measures to protect undocumented workers. For example, no one can be expelled from Italy during the application period from 1 June to 15 August 2020. And, if at any time in the future a worker loses the job they were regularised through, they can apply for a residence permit of up to one year to look for another job. Nonetheless Italy’s approach also reflects the economic rationale behind it, seeing undocumented workers as cogs of the economy.
Other countries have focussed on preventing people from becoming undocumented by extending residence permits during the lockdowns. These include Greece, Ireland, Italy, France, Luxembourg, Poland, Slovakia and Finland.
Necessary elements of regularisations
While the Italian and Portuguese measures will change the lives of many undocumented people, they also show that regularization programmes and mechanisms need at least the following six crucial elements to be effective and human rights compliant.
Firstly, people should be able to apply independently. Regularization mechanisms and programmes that are driven by or depend on employers can lead to exploitation. It often happens that employers charge their employees for the application, or workers accept exploitative conditions because their application depends on their employer.
Secondly, they need to be accessible and not too bureaucratic, burdensome or expensive. Administrative fees are an important barrier because most undocumented people live in poverty. In Belgium, children are exempt from the administrative fee but adults pay 385 euro when applying for regularisation on humanitarian grounds.
Thirdly, 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, for instance.
Fourthly, decisions should be transparent and made on the basis of clear, objective criteria. People should be informed throughout the process, and processes should include a right of appeal.
Fifthly, they should result in independent, secure and long-term statuses, as people remain vulnerable to exploitation if they don’t. People should receive a temporary status that grants access to services while their regularisation application is processed.
Sixthly, civil society organisations are crucial partners for effective regularizations, and should be involved as such from the outset, in the design, implementation and evaluation of measures.
Alone, regularisation does not provide a solution to irregular migration. But it is a valid and effective policy that allows countries to recognize undocumented people living on their territories, contributing to their societies and economies and calling these communities home.
 Kate Brick, 2011, Regularisations in the European Union: The Contentious Policy Tool, Migration Policy Institute Insight
 “Programmes” regularise large(r) numbers of undocumented people who fulfil a specific set of critera, but is open for a limited period of time. A recent, non-EU, example is Operation Papyrus in Geneva, which ran from February 2017 to December 2018 and regularised 2,390 undocumented workers and their families by January 2020. “Mechanisms” are permanent ways to regularise one’s residence status, often on a case-by-case basis and with a varying degree of discretion by decision-makers. Examples are article 9bis and 9ter in the Belgian law, providing the possibility to obtain a residence status on humanitarian or medical grounds, respectively.
 Martin Baldwin-Edwards and Albert Kraler (Eds.), 2008, REGINE: Regularisations in Europe, Pallas Publications
 500 Euros in track one, payable by the employer; 130 Euros in track 2. Paragraph 7, see https://stranieriinitalia.it/attualita/regolarizzazione-ecco-il-testo-in-gazzetta-ufficiale/
 Paragraph 17, see https://stranieriinitalia.it/attualita/regolarizzazione-ecco-il-testo-in-gazzetta-ufficiale/ and http://www.governo.it/node/14766?fbclid=IwAR3So3OAbJJv1aIRhRDy2tZhWWcZ0wxYlB3l7WvGbxAdTop-DcVyMYnY9Fk
 Article 22, par. 11, of Decree Law 286/98
 See also PICUM, 2018, Manual on Regularisations of Undocumented Children, Young People and Families
Cover image credit: Adobe Stock: Lakshmiprasad