Between asylum and return, space is closing for residence permits for undocumented migrants

Under international and EU law, there are several human rights reasons for which people who do not qualify for asylum cannot be deported. These include the principle of non-refoulement, the protection of family and private life, the best interests of the child and the prohibition of arbitrary detention. In addition, several circumstances that are outside of an individual’s control can make deportation or return impossible.

For people who for whom return is impossible, or undesirable, many EU countries foresee residence permits that go outside the scope of international protection.

But in recent years, EU migration policies have been consistently focusing on increasing returns and closing access to these national residence permits. Such an approach rests on the mistaken belief that for undocumented people, the only option is to return – either by force or “voluntarily”. The EU Pact on Migration and Asylum is built on this assumption and attempts to entrench it throughout the EU’s immigration and asylum procedures.

Three recent proposals, the Recast Return Directive, the Screening Regulation and the amended Asylum Procedures Regulation go one step further in this direction, by assuming that all people who arrive or reside in the EU irregularly and whose asylum applications are unsuccessful should immediately return or be deported.

In reality, people continue to reside irregularly for a wide range of reasons, and may indeed have other grounds for residence than an asylum application. According to official estimates, every year 300,000 people cannot return from the EU for different reasons, including human rights and factual considerations.

60 national protection statuses exist in the EU, in addition to international protection (i.e. asylum and subsidiary protection). The Pact proposals would risk practically closing access to these and other national-level residence permits.

At least seventeen EU member states provide residence permits based on humanitarian reasons. In addition, specific statuses based on the principle of non-refoulement exist in at least seven EU member states.

In addition, twelve EU member states provide a temporary residence permit on medical grounds; at least five member states have legislation granting special permits for undocumented victims of domestic violence; at least eight member states have regularisation mechanisms accessible to children, young people or families; and at least six member states have procedures for stateless people.

Some countries also provide access to residence permits based on factors such as length of residence, employment, school attendance of children and other local social ties.

Some member states grant residence permits to some victims of crimes (e.g. domestic violence, trafficking in human beings or particularly exploitative working conditions), to allow them to seek protection and report abuse in a safe way and to access remedy. The EU legal framework requires or encourages permits to be granted in some circumstances, in particular for victims of domestic violence with a dependent status (Citizens Directive and Family Reunification Directive), victims of human trafficking (Residence Permit Directive) and labour exploitation (Employers’ Sanctions Directive).

These various permits are based on criteria which are often not assessed in the asylum procedure. At least half of the 60 national protection statuses existing in the EU are currently examined by other authorities than those handling asylum applications, and in many instances are not part of the international protection procedure. The refugee status determination procedure, which is the core of 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 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 when they are deported or return to a country of transit or another third country; whether their health condition might prevent their 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); and whether they might qualify for other national-level residence permits.

A migration system that respects the fundamental rights of everyone ensures people can access residence permits granted at national level. A fair and efficient system does not leave hundreds of thousands of people in limbo.

We recommend member states to comprehensively assess fundamental rights considerations (including but not limited to the right to health care, private and family ties, best interests of the child and non-refoulement) and whether third country nationals fulfil the criteria to apply for an autonomous residence permit or other authorisation granting a right to stay before a return decision is issued. For children, this means including a formal, individual and fully-documented procedure examining all aspects of a child’s situation and considering all options in order to identify which durable solution is in the best interests of the child.

To learn more about this topic, please read our briefing paper.

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