Links between legal and illegal immigration
The institutions and the Member States are reviewing their immigration policies in response to demographic decline and ageing of the population in the European Union (EU). One of the solutions proposed at European level to meet the needs of the labour market is to expand economic migration. In this study, the Commission takes stock of existing measures on legal immigration. It then analyses their effects on illegal immigration and puts forward a series of proposals for managing both legal and illegal immigration flows efficiently.
Communication from the Commission to the Council, the European Parliament, the European Economic and Social Committee and the Committee of the Regions of 4 June 2004 - Study on the links between legal and illegal migration [COM(2004) 412 final - Not published in the Official Journal]
This Commission study analyses the effect of a legal migration policy on illegal migration flows and on cooperation with third countries in the fight against illegal immigration. The study first describes the existing measures for managing legal immigration, and then analyses the relationship between legal and illegal migration flows. Lastly, it presents the Commission proposals on managing immigration.
Current management of legal immigration
The admission of third country nationals for the purposes of employment varies from one Member State to another, as it is governed by their domestic legislation designed to respond to different migratory trends. Current procedures and policies are designed to satisfy labour market requirements whilst also protecting the interests of the national workforce. Third-country nationals wishing to work in the EU must satisfy certain criteria. For example, they need a job offer, adequate financial resources and sickness insurance to be eligible for a temporary residence permit. In some Member States, fast-track or preferential procedures can attract highly skilled workers to specific sectors such as healthcare, but this applies to unskilled workers as well.
The study carried out by the Commission shows that it is difficult to assess legal migration flows on the one hand, and to estimate labour market needs on the other. Even if the quality of Community statistics has improved, the sources, definitions, data collection and practices still vary from one Member State to another. The report nevertheless estimates that migration for the purpose of employment currently accounts for less than 15% of persons admitted to Member States. Most third country nationals legally admitted to the EU enter by way of family reunification or humanitarian protection. The overall predictions regarding employment reveal labour shortages in the EU after 2010. In its Communication on immigration, integration and employment, the Commission acknowledges that immigration will become increasingly necessary over the next few years to satisfy the requirements of the European labour market. It adds, however, that immigration will not resolve the problems caused by an ageing population, which will require structural reform.
In order to allow third country nationals into their countries, several Member States have concluded bilateral employment agreements. Their purpose is to meet labour shortages. They may also be concluded, however, in order to improve relations with third countries, reinforce historical and cultural links, improve the management of migration flows or combat illegal immigration. Bilateral agreements signed in recent years have generally concerned the admission of seasonal or temporary workers employed in agriculture, construction, tourism and catering. Spain, for instance, signed agreements with six third countries (Bulgaria, Colombia, the Dominican Republic, Ecuador, Morocco and Romania) which are traditional sources of illegal immigration. The agreements have helped to improve cooperation and combat illegal immigration.
Another method of regulating legal immigration involves a system of quotas. Here it is the governments that determine annual quotas after consulting businesses, employers' organisations, trade unions and employment agencies. The Member States set their quotas by sector of activity, geographic region or country of origin. The Commission study shows that many Member States criticise the lack of flexibility of this system and fear that they are limiting their ability to respond to labour market needs. In the Commission's opinion, preferential quotas can facilitate cooperation with some third countries in the short term but are also liable to hamper cooperation with other third countries in the long term as they have a discriminatory effect.
Some Member States also apply regularisation measures. The frequency of these operations has increased since the mid-1990s, although their use varies according to the Member State. There are temporary regularisations and definitive regularisations. In the former, regularised persons are issued with a renewable residence permit for a limited duration. In the latter, they are given permanent resident status. The study found that some Member States consider that it is necessary to regularise certain migrants who do not fulfil the normal criteria for a residence permit. There are also countries that carry out regularisations on "humanitarian" or "protection" grounds for persons who are unable to claim international protection but who cannot be returned to their country of origin. Lastly, there are Member States that carry out "fait accompli" regularisations, where they regularise illegal migrants who are often already in unlawful employment. The Commission study looked at the effectiveness of regularisation programmes not only for the migrants concerned but also for the state. Whilst such programmes allow better population management, tackle the problem of illegal working and thus increase public revenue, the Commission concludes that such regularisations nonetheless offer a form of encouragement to illegal migration.
Relationship between legal and illegal immigration
There are many forms of illegal migration. Migrants enter a Member State by land, air or sea. Some use false or forged documents or organised criminal networks. Others enter legally and then "overstay". The study points out that it is very difficult to establish a clear picture of the scale of illegal immigration in the EU Member States. The number of illegal immigrants is estimated on the basis of the number of refused entries and removals, border arrests, rejected applications for asylum or national protection or applications for national regularisation procedures. To these numbers must be added those who do not apply for any form of international protection. On the basis of these estimates, the Commission considers that illegal migration is significant and that the reduction of illegal migration flows is a political priority at both national and EU level.
The study then examines the impact of bilateral agreements, visa policy and cooperation with third countries on illegal immigration flows. As regards agreements, the study concludes that in most Member States there is no direct link between the introduction of bilateral schemes and a reduction in illegal migration flows. Signing bilateral agreements seems nevertheless to have helped develop cooperation with third countries on migration issues in general.
Another way in which migrant flows have traditionally been regulated is through changes in visa policy. Since the Treaty of Amsterdam (1999), the EU has had powers over visa policy in the Member States (with the exception of the United Kingdom and Ireland). It agrees a list of third countries whose nationals are subject to or exempt from visa requirements in order to cross the external borders of Member States. The Commission points out that it is difficult for the time being to prove a link between the lifting of visa requirements and a subsequent increase in illegal migration. It seems, however, that the introduction of visa policies in neighbouring third countries limits entry into the EU via those countries. In Bosnia-Herzegovina, this measure led to a marked drop in the number of Iranian and Turkish migrants arriving illegally in the EU.
On the one hand the Commission considers that cooperation with third countries is vital in reducing illegal immigration flows. Police and border surveillance cooperation agreements or readmission agreements, for example, have proved effective. On the other hand, the Commission is endeavouring to link immigration policies more closely to development policies. The impact of these measures has been analysed each year since 2004 in an annual report on EU cooperation with third countries.
The way forward
The study has revealed a clear lack of reliable and comparable data at EU level. The Commission therefore plans in future to strengthen consultation and information exchanges within the EU. In particular, it is considering the possibility of setting up a permanent structure with an appropriate legal basis in order to monitor and analyse the phenomenon of migration and asylum in its different dimensions (political, legal, demographic, economic and social). In addition, the Centre for Information, Discussion and Exchange on the Crossing of Frontiers and Immigration (Cirefi) has set up an early warning system to exchange information on clandestine immigration and the routes used by smugglers of human beings. The system will be updated and accessible on the Internet by the national services dealing with migration flows. The network of National Contact Points for Integration recently set up a work programme of exchange of information and best practices in three fields:
- introduction of newly arrived immigrants;
- language training;
- participation of immigrants in civic, cultural and political life.
The Commission also plans to develop new immigration policy initiatives. It considers, with regard to legal immigration, that it is necessary to decide whether the admission of economic migrants should be regulated at EU level and whether the principle of Community preference for the domestic labour market should be maintained. The degree of harmonisation and the scope of legal immigration should also be analysed. The Commission considers that two basic principles should apply:
- the Constitution, which confirms EU powers in matters of migration policy but leaves it to the Member States to decide on the number of migrants to be admitted;
- the need for any measure taken in this field to be based solely on the criterion of value added for the EU.
To answer these questions, the Commission launched consultations at the beginning of 2005 by presenting its Green Paper on a Community approach to the management of economic migration.
As regards the measures to be taken to manage legal immigration, the Commission considers that the study on the relationship between legal and illegal immigration shows that regularisations should not be regarded as a way of managing migration flows. It would therefore recommend that wide-scale regularisation measures be avoided or confined to very exceptional situations. It also considers that strengthening the integration of third country nationals legally residing in the Member States is an essential objective for the EU. The European Employment Strategy provides a framework for improving integration in the labour market in order to cut the unemployment rate among immigrant populations. The Commission also stresses that it is desirable to make further progress in facilitating the mobility of third-country nationals and the recognition of their professional qualifications within the EU.
The study shows that some level of illegal migration is likely to persist in the EU. The Commission therefore stresses that the fight against illegal immigration must remain an essential part of migration management. This would start with preventive measures and the removal of the main incentives such as undeclared work. The Commission would also like to develop a Community return policy aimed at the durable reintegration of illegal immigrants in their country of origin or of residence.
The Commission intends, lastly, to strengthen cooperation with countries of origin and transit countries in order to reduce the flows of illegal immigration. It proposes establishing partnerships that take account of the interests and expectations of the two parties and to pool all the information available on legal migration channels available to third country nationals. It also proposes developing training programmes in the countries of origin to enable third country nationals to acquire skills which are needed by the EU.
The Communication sets out the results of a study requested by the Thessaloniki European Council of June 2003 on the relationship between legal and illegal immigration. The European Council had concluded that the EU needed to explore "legal means for third country nationals to migrate to the Union, taking into account the reception capacity of the Member States, within the framework of an enhanced cooperation with the countries of origin". The Commission followed up the study by launching a public consultation on 11 January 2005 with the publication of a Green Paper on an EU approach to managing economic migration.