Duvell - Paths Into Irregularity - The Legal and Political Construction of Irregular Migration - 2012

Koninklijke Brill NV, Leiden, 2011 DOI: 10.
1163/157181611X587856
European Journal of Migration and Law 13 (2011) 275295 brill.nl/emil
Paths into Irregularity:
Te Legal and Political Construction of
Irregular Migration
Franck Dvell
Centre on Migration, Policy and Society (COMPAS), University of Oxford, UK
Abstract
Tis article empirically analyses the political and legal construction of irregular migration across selected
member states of the European Union. First, it considers how policies lay the preconditions for irregular
migration. Second, it explores the role of politics and law in generating irregular migration. Tus, it
carves out diverse and divergent practices across the EU and argues that these are related to divergent legal
and political cultures among the member states. Tis reveals that regulations that are meant to prevent
unwanted migration often have unintended side-eects and instead encourage irregular migration which
is conceptualised as a policy gap and policy failure. Te conclusion drawn from this is that some irregular
migration can be avoided and that there is scope for accordingly reforming national laws.
Keywords
European Union (EU); irregular/illegal migration; immigration law; legal construction; legal culture
1. Introduction
In 2008, the population of the EU-27 was 499 million. Of these, 30.8 million
were foreigners, two-thirds from non-EU countries. In addition, another 13 mil-
lion or so were foreign born (in 2005, no recent data available) but were mean-
while naturalised.
1
In 2008, 1.8 million non-EU immigrants legally arrived and
settled in the EU; in 2008, 489 million non-resident tourists arrived in the EU.
2

An additional several billion border crossings occur in both directions each year.
3

Simultaneously, in 2008, 1.9 to 3.8 million irregular immigrants are estimated to
reside in EU member states
4
whilst around 151,000 migrants were apprehended
1)
Mnz, R. (2006). Europe: Population and migration 2005, Migration Information Source, MPI, Wash-
ington, http://www.migrationinformation.org/USFocus/display.cfm?ID=402.
2)
Eurostat (2008). Population, Database, http://epp.eurostat.ec.europa.eu/portal/page/portal/popu lation/
data/database, various tables.
3)
Dvell, F. (2006). Europische und internationale Migration, Hamburg: Lit.
4)
Vogel, D. and Kovacheva, V. (2009). Te size of the irregular foreign resident population in the European
Union in 2002, 2005 and 2008: aggregated estimates, Working Paper No. 4/2009, Hamburg: Hamburg
Institute of International Economics.
276 F. Dvell / European Journal of Migration and Law 13 (2011) 275295
for irregularly entering EU territory.
5
Tis is to demonstrate that the overwhelm-
ing majority of migrants move, reside and return within the conditions and limits
set by the law. A small minority, however, does not conform to the law and
migrates, settles or works in deviation from the rules; they would therefore be
classied as acting in a somewhat irregular manner.
Tere are two points of view on who is to blame for irregular migration: one is
that the individual immigrants, or the facilitators, are to blame for violating the
law and are thus the prime perpetrators;
6
the other is that irregular immigrants are
subject to superior economic forces or victims of unfair, even racist immigration
regimes and are rather victims.
7
Tis points to a controversy about who is to be
held responsible for irregular migration states or individuals. On the one hand,
it is obvious that migrants have various levels of agency (except perhaps those
who are tracked) and can decide, within limits, if, how, when and where to go.
Hence, it is individual migrants who are agents in migration processes and who
migrate across borders and into labour markets while disobeying legal require-
ments. On the other hand, it is also undeniable that states, in the course of exer-
cising sovereignty over their territory and labour markets, determine what is
regular and what is not. Terefore, politics and laws set the conditions under
which people can cross borders and stay and work in a country other than that of
their nationality. It was only once states issued legislations that declared unwanted
immigration illegal and punishable, and introduced technologies, administra-
tions and enforcement procedures to support this legislation, that previously
regular migration nally became irregular.
8
Tus, irregular migration is not an
independent social phenomenon but exists in relation to state policies and is a
social, political and legal construction.
9
Tis article focuses on the role of the state in creating irregular immigrants.
Te article is based on primary and secondary sources, mostly law and politics
documents, surveyed and analysed by experts from twelve member states in course
of the EU-funded research project Clandestino. It is complemented by addi-
tional analysis and updates of national politics and national law. Altogether,
21 national legislations are considered for this article. First, it analyses the policies
that lay the preconditions for irregular migration. Second, it examines some
politics and practices that contribute to the emergence of irregular migration.
Finally, it interprets the results within the framework of some theories of
migration politics.
5)
Frontex (2009). Interceptions at EU land and sea borders during 2008, Warsaw: Frontex.
6)
E.g., European Commission (2006) On policy priorities in the ght against illegal immigration of third-
country nationals, communication from the Commission, COM(2006) 402 nal, Brussels.
7)
E.g. Hayter, T. (2004). Open Borders: Te Case Against Immigration Controls, London: Pluto Press.
8)
House of Lords (2002). European Union: Tirty-seventh report. Ordered to report on A COMMON
POLICY ON ILLEGAL IMMIGRATION, London: Stationary Oce.
9)
Dvell, F. (2008). Clandestine migration in Europe, Social Science Information, 47(4), pp. 479497.
F. Dvell / European Journal of Migration and Law 13 (2011) 275295 277
2. Restrictive Immigration Policies, Divergent Legal Denitions, Diverse
Legal-political Cultures
For over a decade, scholarly debate recognised the Europeanization of migration
politics within the European Union and a certain level of convergence of the
politics of the member states.
10
A particular level of political harmonization was
found in the elds of asylum and irregular migration policies.
11
For instance, the
Return directive suggests common terminology and a broad denition of irregu-
lar migration that nevertheless allows for considerable scope according to national
legislation,
illegal stay means the presence on the territory of a Member State, of a third-country national who
does not full, or no longer fulls the conditions of entry as set out in Article 5 of the Schengen
Borders Code or other conditions for entry, stay or residence in that Member State.
12
Other policy elds, however, are less Europeanized, for example, labour immigra-
tion largely remains within the realm of national policies, also states still maintain
their national legislations. Terefore, the nation state remains the dominant unit
of analysis of migration, policy and law and case studies the dominant form of
investigations.
13
Tis section sketches the political and legal conditions and deter-
minants in thirteen EU member states under which irregular migration emerges
and shows the role law and politics play in creating irregularity in migration.
10)
Koslowski, R. (1998). European Union Migration Regimes, Established and Emergent, in: C. Jop-
pke (Ed.), Challenge to the Nation-State. Immigration in Western Europe and the United States, Oxford:
Oxford University Press, pp. 153188; Geddes, A. (2003) Te Politics of Migration and Immigration in
Europe, London: Sage; Lavenex, S. and E. Uarer (2003) Te Emergent EU Migration Regime and Its
external impact, in: S. Lavenex and E. Uarer (Eds.), Migration and Externalities of European Integration,
Oxford: Lexington Books, pp. 113; Faist, T. and A. Ette (Eds.) (2007). Te Europeanization of National
Policies and Politics of Immigration: Between Autonomy and the European Union, Basingstoke: Palgrave.
11)
Guild, E. (2006). Te Europeanisation of Europes Asylum Policy, International Journal of Refugee
Law, 18(34), pp. 63051; Lambert, H. (2010). Transnational law, judges and refugees in the European
Union, in: G. Goodwin-Gil and H. Lambert (Eds.), Te limits of transnational law: refugee law, policy
harmonization and judicial dialogue in the European Union, Cambridge: Cambridge University Press,
pp. 116; Samers. M. (2004). An Emerging Geopolitics of Illegal Immigration in the European Union,
European Journal of Migration and Law 6(1), pp. 2745; Walters, W. (2008). Anti-Illegal Immigration
Policy: Te EU Case, in: C. Gabriel and H. Pellerin (Eds.), Governing International Labour Migration,
London: Routledge, pp. 4359, and many others.
12)
European Parliament and Council (2008). Directive 2008/115/EC on common standards and procedures
in Member States for returning illegally staying third-country nationals, 16/12/2008, Brussels. Te Schengen
Border Code, article 5, only sets entry conditions for third-country nationals and thus only implicitly
suggest that entry should not be allowed or is irregular if these are not met.
13)
Van der Leun, J. (2003). Looking for Loopholes. Processes of incorporation of illegal immigrants in the
Netherlands, Amsterdam: Amsterdam University Press; Gonzlez-Enrquez, C. (2006) Te Fight against
Illegal Immigration, Smuggling and Tracking in Human Beings in Spain. Ambiguities and Rhetoric,
in: E. Guild and P. Minderhoud (Eds.), Immigration and Criminal Law in the European Union, Leiden:
Martinus Nijho Publishers, pp. 325345, to name just a few.
It examines the terminology and denitions regarding irregular migration in the
law, but not in policy documents.
Te rise of the concept of illegal migration dates back to 1920, 1930, and
1940; it was then occasionally applied during the 1970s before becoming widely
used from the late 1980s and especially from the 1990s onwards.
14
Here only
three developments will be highlighted: First, the rise of irregular migration dur-
ing the 1990s was related to the fall of the iron curtain in 1989, the EU acces-
sion process and the introduction of visa-free travel due to which citizens from
Central and East ern European (CEE) countries were allowed to move (relatively)
freely. In addition, new migration paths from the East and South through CEE
and Commonwealth of Independent States (CIS) to the EU emerged. As a result,
large-scale and often unwanted inows of asylum seekers and economic migrants
from CEE, CIS and developing countries occurred. Tis raised serious concerns
and eorts were made to contain this. Visa regimes were introduced, employment
restricted and certain types of migration were declared unlawful. Second, eco-
nomic growth in northern as well as in southern European countries triggered
considerable demand for skilled and unskilled immigrant labour. Whilst north-
ern countries set limits to immigration southern countries rather lacked a frame-
work for labour migration. Tus, asymme tries were created between the demand
for and the supply of regular immigrant labour predictably spurring a supply
of irregular labour.
15
And third, the political and economic transformation in
Central and Eastern Europe in the short term led to signicant job losses and
considerable emigration, as in Poland and Lithuania. In the long run, however,
transformation combined with EU accession led to considerable economic
growth. As a consequence, labour became scarce in some countries or some
segments of the labour market and a fresh demand for labour was generated.
But whilst a business-friendly environment had emerged, immigration regimes
re mained strict. All this set the conditions for irregular transit migration and
immigration through and to eastern EU countries, as well as to western and
northern EU countries. In what follows, the more recent policy developments in
individual EU member states shall be examined.
Germany, for very long, denied the fact of its being an immigration country
and whilst its borders have remained relatively open to visitors 600 million
people legally cross the countrys borders each year access to its labour market is
limited. Until April 2011, Germany even restricted labour migration from the
new eastern EU member states. Te Netherlands by and large discourage[s]
labour migration except as regards highly skilled migrants.
16
French immigration
14)
For a detailed analysis see Dvell, F. (Ed.) (2006). Illegal immigration in Europe: Beyond control ?,
Houndmills: Palgrave/MacMillan.
15)
Lomnitz, L.A. (1988). Informal Exchange networks in formal systems: A theoretical model, Ameri-
can Anthropologist, 90(1), pp. 4255.
16)
Van der Leun, J. and M. Ilies (2008). Country report Te Netherlands, Athens: ELIAMEP, p. 3.
policy is strict, highly selective and favours only highly skilled immigrants.
17

French immigration legislation rests on no less than 52 separate decrees, circulars,
codes and laws. In Austria, increasingly protectionist legislation was introduced
between 1975 and 2005 signicantly restricting immigration of third country
nationals.
18
In 2006, only 20,600 entry permits were granted to students,
workers and family members. At present, immigration is regulated by four
separate laws,
19
all amended in 2006, and is rather complex. Te UK, over the
years, and in response to economic needs and political developments had built up
an increasingly complex immigration regime with over 80 migration categories.
20

Te prime aim was to manage migration for the benets of the economic needs
of the country. Tus, there were plenty of opportunities to immigrate legally
and it was hoped that this would contribute to reducing incentives for irregular
migration. Nevertheless, irregular migrants continued to reside in the country on
a signicant scale. In 2008, this system was replaced by a 5-tier points-based
system which aimed at simplifying the regime and simultaneously restricting
non-EU immigrants.
Germany holds the principle that entry is not normally but only exceptionally
permitted;
21
thus any entry is perceived as irregular so long as no explicit permis-
sion has been granted. Irregular migration is dened as unlawful entry and irreg-
ular immigrants as foreigners no longer possessing a necessary residence title and
a right of residence, and who are therefore required to leave the Federal territory.
22

In the Netherlands, irregular migration is legally dened as the presence in the
Netherlands of foreign nationals who are not in possession of a valid residence
permit and are therefore obliged to leave the country.
23
Meanwhile, the new
concept of unlawful stay was introduced and now even includes legally staying
tolerated immigrants.
24
French legislations refer to irregular immigration,
irregular entry and work and foreigners in an irregular situation.
25
Irregular
17)
Simon, P. (2003). French Integration Policy: Old Goals in New Bottles?, Migration Information Source,
Washington: MPI.
18)
Kraler, A., D. Reichel and C. Hollomey (2008). Country report Austria, Athens: ELIAMEP, p. 9.
19)
Tese are the Asylum Act, Foreigners Employment Act (Auslnderbeschftigungsgesetz), Aliens Police
Act (Auslnderpolizeigesetz) and Settlement and Residence Act (Niederlassungs- und Aufenthaltsgesetz).
20)
Dvell, F. (2008). Report from the United Kingdom, in: J. Doomernik and M. Jandl (Eds.), Modes of
Migration Regulation and Control in Europe, Amsterdam: Amsterdam University Press, pp. 187202.
21)
See Act to Control and Restrict Immigration and to Regulate the Residence and Integration of EU
Citizens and Foreigners (Immigration Act), 2002.
22)
Foreigners Law, paragraph 57.
23)
Immigratie en Naturalisatiedienst (IND) (2005). Illegal Resident Tird Country Nationals in the EU
Member States: State approaches towards them and their prole and social situation, Te Hague: IND.
24)
Pluymen, M. (2004). Exclusion from Social Benets as an Instrument of Migration Policy in the
Netherlands, IMIS Beitrge 24, pp. 7587.
25)
See Loi no 20071631 du 20 novembre 2007 relative la matrise de limmigration, lintgration et
lasile, Code de lentre et du sjour des trangers et du droit dasile, 2005 and Circulaire: Mesures
prendre lendroit des ressortissants trangers dont le sjour en France est irrgulier et dont au moins un
enfant est scolaris depuis septembre 2005.
migration is dened as penetrating or working without conforming [with the
law] and staying on the territory of France for a duration not authorized by a
visa.
26
Finally, In Austria, in political terms, the principal distinction between
legality and illegality is related to the nature of employment and whether it is
formal, hence conforming to the law, or not. With respect to migration, the dis-
tinction between legal and illegal is instead based on residence status. Irregular
migration is by law dened as illegal residence which in fact includes entry and
stay. Te EU accessions in 2004 and 2007 led to the creation of new categories
of (semi-)legal migration, comprising persons staying legally, but working with-
out work permit, and/or not conforming to formal employment regulations.
27
In
the UK, any migration occurring outside of the law is judicially dened as illegal
entry. Tis, however, covers very dierent forms of behaviour, such as entering,
staying or working in breach of the immigration regulations. Tus, illegal entry
has in fact been an umbrella term and is grossly misleading.
In some southern European countries, immigration legislation regulating
entry, residence and work was introduced much later than in the northern coun-
tries, usually during the late 1980s, early 1990s. Well into the 1990s, Spain and
Italy were de facto open to large-scale immigration whilst according legislation
was almost absent and visas were not required. Only, in Spain in 1991, visa
requirements were imposed on Moroccans who nevertheless continued to arrive
in increasing numbers clandestinely and by boat until the mid 2000s.
28
Mean-
while, entry remained visa-free for other major sending countries (Columbia
until 2000, Ecuador until 2002 and Bolivia until 2006). In addition to this, in
Mediterranean countries unregulated migrations coincided with equally unregu-
lated labour markets, and in combination oered vast opportunities for irregular
immigrant workers.
29
Until legislation was introduced, those who wished to
immigrate often could only do so by entering clandestinely or by overstaying
tourist visas, as in Italy. Much immigration therefore remained irregular, not
because of a violation of existing regulations but rather because of the absence of
such regulations.
26)
See Code de lentre et du sjour des trangers et du droit dasile, 2005, article L 6211, Ltranger qui
a pntr ou sjourn en France sans se conformer aux dispositions des articles L. 2111 L. 3111 qui
sest maintenu sur le territoire franais au-del de la dure autorise par son visa.
27)
Kraler et al., supra note 18, p. 7.
28)
De Haas, H. (2005). Morocco: From Emigration Country to Africas Migration Passage to Europe, Migra-
tion Information Source, Washington: MPI.
29)
Reyneri, E. (2003). Immigration and the Underground Economy in New Receiving South European
Countries, International Review of Sociology, 13(1), pp. 117143; Maroukis, T., C. Iglicka, and K. Gmaj
(2011) Irregular Migration and Informal Economy in Southern and Central-Eastern Europe: Breaking
the Vicious Cycle?, International Migration (forthcoming).
In Spain, the rst modern immigration law came into force in 1986,
30
in Italy
in 1990,
31
and in Greece in 1991.
32
Tese earlier laws were inspired by the coun-
tries EU integration;
33
due to EU concerns and priorities these mainly addressed
irregular migration while including few opportunities for legal migration or inte-
gration. It was only after about a decade that more comprehensive laws were
introduced which addressed these issues. Under the Spanish quota system from
20022004, 2030,000 migrant workers could enter legally each year.
34
After
2004, the quota system was replaced by the so-called general regime based on a
catalogue of jobs dicult to cover.
35
Other policies, such as the Agreement on
the Regulation and Planning of Migratory Flows between Spain and Ecuador
generated little success and only arranged for the regular ow of a few thousand
workers (2,577 from 2002 to 2006).
36
Te Italian quota system granted 60,000
(1998) to around 500,000 permits to migrant workers (2006) but was then
reduced to 170,000 (2007). To some extent, however, because the system
accepts in-country applications it is a disguised form of regularisation.
37
Te
Greek metaklisi scheme (L. law 3386/2005) has also aimed to regulate labour
migration, it oers a by-invitation-only channel which is supplement ed by bilat-
eral agreements on seasonal labour migration (Albania, Bulgaria and Egypt). But
the number of immigrants admitted under this scheme is very small, only a few
thousand each year, while the kind of immigration favoured and encouraged
is that of repatriating ethnic Greeks.
38
Despite such quota and programmes,
the majority of immigrants remain excluded from legal opportunities. Instead,
before and after the introduction of immigration laws, immigrants usually
obtained a legal status through posteriori regularization (Italy) or normalization
programmes (Spain).
30)
Ley de Extranjera 1986 (Law on the Rights and Freedoms of Foreigners in Spain), Ley Orgnica
4/2000 and Ley Orgnica 8/2000 (law on foreigners).
31)
Martelli law, 39/1990, followed by the Turco-Napolitano law no. 40/1998, conrmed by the Single
Act no. 286 of July 25, 1998.
32)
L.1975/1991, amended in 2001, L.2910/2001 addressing labour migration.
33)
E.g. Kreienbrink, A. (2004). Einwanderungsland Spanien Migrationspolitik zwischen Europisierung
und nationalen Interessen, Frankfurt: IKO Verlag fr Interkulturelle Kommunikation.
34)
Aparicio, M. and E. Roig (2006). La entrada por razones laborales y el trabajo de los extranjeros, in:
E. Aja and J. Arango (Eds.), Veinte aos de inmigracin en Espaa, Barcelona: CIDOB, pp. 145174.
35)
Reglamento de la Ley de Extranjera. Real Decreto 2392/2004.
36)
Acuerdo entre el Reino de Espaa y la Repblica del Ecuador relativo a la Regulacin y Ordenacin
de la Flujos Migratorios.
37)
According to a survey analysis by Sciortino, 34 percent of the applicants in a northern Italian region
(Lombardi) already resided in the country, Sciortino, G. (2008) La popolazione straniera irregolare:
cambiamenti e continuita, in: G.C. Blangiardo (ed.), Limmigrazione straniera in Lombardia. La sesta
indagine regionale. Rapporto 2007, Milan: Fondazione ISMU, pp. 149157.
38)
Maroukis, T. (2008). Counting the Uncountable Data and Trends across Europe Greece Report, Clan-
destino Project, available at: http://clandestino.eliamep.gr/wp-content/uploads/2009/10/clandestino_
re port_greece_nal_3.pdf.
In Italy, just like in France, irregular migration is dened as foreigners in an
irregular position.
39
Spanish primary legislation lacks such a clear-cut term or
denition; instead it is only dened implicitly through how things ought to be.
In secondary legislation regarding immigration rules, however, there is a reference
to irregular immigration and foreigners in an irregular situation.
40
Te penal
code instead refers to clandestine migration and foreigners not legally staying in
Spain. In Greek law the term paranomos is used, which literally means illegal.
However the term most commonly used by authorities as well as lay people is
lathrometanastefsi, which literally means smuggled migration and which is a
demeaning and oensive term compared to the mere use of the adjective or
noun illegal.
Te Central and Eastern European countries (CEE) represent a category in
their own right. Between 1945 and 1989 (the fall of the Soviet Union), migration
was subject to illiberal policies, so that there was virtually no immigration and
very little temporary migration. Accordingly, these countries, until 1989, had no
immigration laws. Most important, however, is that the history of the concept of
illegal migration and its political meaning diers completely from that among
western and southern countries in that it referred to unlawful and often politi-
cally motivated leave or ight from communist countries. Tis only changed in
1989 when exit visas were abandoned. Some countries initially also liberalised
immigration, as Poland and the Czech Republic, but during the course of joining
the EU (2004) and the Schengen agreement (2007), more restrictive legislation
was introduced. In contrast, Slovak law was strict from the moment the country
broke away from Czechoslovakia (1993),
41
whilst Hungary encouraged only co-
ethnic immigration and discouraged any other kind.
42
Again, there are few legal
migration channels for non-EU nationals in all countries and thus very low levels
of regular migration.
43
In primary Czech migration legislation there is no denition of irregular migra-
tion.
44
Tere is also no separate legal denition for irregular immigrant employ-
ment; instead the category of illegal work
45
covers native and immigrant workers
39)
Bossi-Fini Law no. 189/2002.
40)
Rules of Implementation of the Law on Foreigners (Reglamento de la ley organica 4/2000, de 11 de
Enero, sobre derechos y libertades de los extranjeros en Espana y su integracion social).
41)
Divinsk, B. (2008). Counting the Uncountable. Data and Trends across Europe Slovak Republic Report,
Clandestino Project, available at: http://clandestino.eliamep.gr/wp-content/uploads/2009/10/clandestino_
re port_slovak-rep_nal3.pdf.
42)
Futo, P. (2008). Counting the Uncountable. Data and Trends across Europe Slovak Republic Report,
Clandestino Project, available at: http://clandestino.eliamep.gr/wp-content/uploads/2009/10/clandestino_
rep ort_hunga ry_nal_3.pdf.
43)
Maroukis et al., supra note 29.
44)
Drbohlav, D. and L. Lachmanov (2008). Country report Czech Republic, Athens: ELIAMEP.
45)
Act on Employment, no. 435/2004 Coll.
engaged in informal work and immigrant workers working in breach of the law
or without a permit. Tus, the point of reference is the work status and not the
immigration status. Equally, the law on irregular business activities
46
does not
make a distinction between native and foreign perpetrators. Slovakian immigra-
tion law
47
instead refers to undesirable migration and the unauthorised stays of
foreigners, their illegal enterprise and employment. In Poland, the Act on Aliens
refers to illegal crossing of the border (Article 14) and denes irregularity as:
residing on the territory without the required visa, the residence permit for a
xed period, the permit to settle or the long-term residents EC resident permit;
as carrying out work contrary to the Act of 20 April 2004 on the promotion of
employment; or as failing to possess the nancial means necessary to cover the
costs of residence (Article 88). Accordingly, such persons are categorised as aliens
who are subject to expulsion or an obligation to leave the territory but not as
illegals. Generally, in countries of Slavic language (i.e. Russia, Ukraine, Poland,
Slovakia and Czech Republic) the expression used is nelegalni, and is commonly
translated as illegal though it literally means non-legal.
With respect to refugees, Greece, Spain, France, Slovakia and Hungary have
very low recognition rates (from 1 to 15 percent) and often oer only limited
support to asylum applicants.
48
Denmark, Germany and the UK have medium
recognition rates (around 30 percent), whilst Austria, Italy and Sweden have high
recognition rates (above 50 percent). For Italy Fasani
49
argues that the lack of
provisions to asylum seekers contributes to irregular migration since those who
are potentially refugees abstain from applying for asylum, whilst in Spain illegal
immigration [is the] preferable option for . . . asylum seekers because of the fact
that recognition rates are so low.
50
Krister Isaksson
51
from the Swedish Migration
Board also claims that many Iraqis in Europe choose to remain illegal because
they believe their asylum request will be denied. See Table 1.
With respect to policy, these examples indicate that there are three categories
of immigration countries: a) those with some legal migration channels (usually
the northern countries), b) those with few legal migration channels who instead
often oer poste priori regularisation (southern countries, but also to some extent
46)
Trade Act, no. 455/1991 Coll.
47)
Principles of migration policy, Resolution no. 846/1993; also see Act No. 48/2002 on the Stay of
foreigners. In 2005, this was replaced by a Conception of the Migration Policy of the Slovak Republic
(Resolution No. 11/2005).
48)
UNHCR (2008). Statistical yearbook 2007, Trends, Geneva: UNHCR.
49)
Fasani, F. (2008). Counting the Uncountable. Data and Trends across Europe Italy Report, Clandestino
Project, available at: http://clandestino.eliamep.gr/wp-content/uploads/2009/10/clandes tino_report_italy_
nal_3.pdf, p. 71.
50)
Gonzalez-Enriquez (2008). Country report Spain, Athens: ELIAMEP, p. 8.
51)
Quoted in Spindler, W. (2007). Iraq Bleeds: Millions displaced by conict, persecution and violence,
Refugees Magazine 146, http://www.unhcr.org/publ/PUBL/461e4a6c2.html.
Table 1. Legal Denitions of Irregular Migration
Country Term/Denition Law
UK Illegal entry 1971 Immigration Act
Germany Unlawful entry,
foreigners no longer possessing a
necessary residence title and a right
of residence [and] required to leave
the Federal territory
Auslndergesetz (Foreigners Act)
Netherlands Te presence in the Netherlands
of foreign nationals who are not in
possession of a valid residence
permit and are therefore obliged to
leave the country unlawful stay
Illegals
Aliens Act, 2000
Linking Act (Benet Entitlement
and Residency Status Act)
Illegalennota (Ministry of Justice,
Policy document on Illegal Aliens,
2004)
Austria Illegal residence Fremdenpolizeigesetz
(Aliens police Act)
France Irregular immigration,
irregular entry and work,
foreigners in an irregular situation,
penetrating or working without
conforming [to the law and who]
stay on the territory of France for a
duration not authorized by a visa
Loi no 20071631 du 20 novembre
2007 relative la matrise de
limmigration, lintgration et
lasile Code de lentre et du sjour
des trangers et du droit dasile,
2005 Circulaire: Mesures prendre
lendroit des ressortissants trangers
dont le sjour en France est
irrgulier et dont au moins un
enfant est scolaris depuis
septembre 2005.
Code de lentre et du sjour des
trangers et du droit dasile, 2005
Spain No term in main legislation
irregular immigration
irregular situation
Clandestine migration
foreigner not legally staying
in Spain
Ley organic 8/2000
Reglamento de la ley organica
4/2000, de 11 de Enero, sobre
derechos y libertades de los extran-
jeros en Espana y su integracion
social (Rules of Implementation of
the Law on Foreigners)
Penal Code
Italy Foreigners in an irregular position Bossi-Fini Law no. 189/2002
the Netherlands and Belgium), and c) those who oer neither signicant legal
migration channels nor regularisation opportunities (eastern countries, though
Austria represents a similar case). Scandinavian countries represent a separate
sub-category, given that the only legal migration channel for non-EU nationals is
a resettlement programme for refugees. With respect to the legal arrangements,
the cases demonstrate that there is no unanimously shared or agreed denition of
irregular, unlawful, clandestine, non-legal, paralegal or illegal immigration.
Instead, each state has its own legislation, point of reference and denition. Some
countries (UK, Poland) apply a criminalising term, another set of countries has
Table 1 (cont.)
Country Term/Denition Law
Greece Paranomos, literally paralegal or
parallel
L.1975/1991, L.2910/2001
Poland Nelegalni (non-legal),
illegal crossing of the border,
residing on the territory without the
required visa/permit etc
(Act on Aliens)
Slovakia Undesirable migration,
unauthorised stays of foreigners,
their illegal enterprise and
employment
Illegal migration
Principles of migration policy,
Resolution no. 846/1993, also see
Act No. 48/2002 on the Stay of
foreigners
Conception of the Migration Policy
of the Slovak Republic (Resolution
No. 11/2005)
Czech
Republic
Absent
Unauthorized stay
not allowed border crossing
Act on the Residence of Aliens in
the Territory of the Czech Republic
(Act No. 326/1999 Coll)
Penal Code (Act No. 140/1961
Coll)
Hungary Crossing frontiers illegally,
third-country national (tcn) who
no longer has the right to reside,
tcn who fails to comply with the
requirements set out in this Act for
the right of residence
tcn who engaged in any gainful
employment in the absence of the
prescribed work
Act II of 2007 on the Admission
and Right of Residence of
Tird-Country Nationals
developed a less biased denition (France, Spain, Italy, and Greece) and a third set
of countries prefers a descriptive term (Germany, Hungary).
Te above analysis indicates that denitions are usually based on a mix of refer-
ences to the illegal crossing of borders, irregular entry or stay, lack of residence
permits, lack of work permits, obligations to leave the territory or violations
of expulsion orders. Sometimes there is no clear denition of irregular migration,
so what is irregular is the result of what is considered or dened as regular. In
other cases, denitions are blurred and either conate entry with stay (e.g. UK
and Austria) or conate regular with irregular immigrants (Germany and Nether-
lands). Often, no clear distinction is made between informal employment and
irregular immigration and the two concepts are conated. Sometimes, even
the various laws of one country can contradict each other rendering general ter-
minology and denitions incoherent, as in Spain. Incoherencies are also found
between law and policy documents, since whilst the former rarely use the expres-
sion illegal migration/foreign ers, the expression is nevertheless often applied in
the latter.
52
Te reasons for these divergent practices are several and seem to be based on
three separate but interdependent legal and political cultures and discourses:
views on migration, perceptions of employment and ideas of national identities.
Each of these can be tolerant or intolerant to divergence and diversity. Tose
countries which are based on an ethnic understanding of national identity (Poland,
Hungary, Greece, Germany to some extent, Slovakia and Czech Republic) seem to
be relatively intolerant towards immigration and subsequent ethnic diversity,
whereas liberal or republican countries are more tolerant and ready to accommo-
date diversity.
53
Simultaneously, Triandafyllidou demonstrates that countries that
are intolerant to immigration might nevertheless be tolerant to temporary labour
migration or to irregular migration.
54
Several scholars argue that Spain, Italy,
Greece, Poland and the Czech Republic are more tolerant to deviant economic
activities, notably informal employment
55
whereas in other countries the view is
52)
For example: Germany, illegality of foreigners, in Migrationsbericht der Beauftragten der Bundesr-
egierung fr Migration, Flchtlinge und Integration im Auftrag der Bundesregierung; in Czech Republic
illegal migration is used only in ocial documents and statistics but not in law, see Drbohlav and Lach-
manov, supra note 4 p. 12; in Hungary several government documents refer to illegal migration, e.g.
Concept paper about the migration strategy of Hungary, Budapest 2007; in Slovakia, illegal migration
is used as a term in the Conception of the Migration Policy of the Slovak Republic (Government Resolution
No. 11/2005), see Divinsk, supra note 41, p. 13.
53)
Parekh, B. (1994). Tree theories of immigration, in: S. Spencer (Ed.), Strangers and Citizens: A
positive Approach to Migrants and Refugees, London: IPPR, pp. 91110; also see Triandafyllidou, A. (2001)
Immigrants and National Identity in Europe, London: Routledge.
54)
Triandafyllidou, A. (ed.) (2009). Irregular Migration in Europe: Myths and realities, Aldershot: Ashgate.
55)
Fasani, supra note 49; Gonzalez-Enriquez (2008); also see Vollmer, Bastian A. (2011). Policy dis-
courses on irregular migration in the EU Number games and political games , European Journal of
Migration and Law, 13(3) pp. 317339, this issue.
that people conform to the rule (UK, Germany).
56
Finally, certain countries tend
towards cultural homogeneity and value monism as an ideal of society (e.g. Den-
mark, Sweden and Norway)
57
while others are based on rather heterogeneous
concepts (e.g. Italy), and still other countries lie between these poles (e.g. UK and
France). Various combinations of the two cultures and concepts are possible and
it could be assumed that these national identities, cultural beliefs and values are
reected in the legislation of each country and lead to dierent legal cultures in
the EU member states.
58
Tis may explain the mixed responses to irregular migra-
tion, for instance, some countries might be intolerant to immigration but toler-
ant to informal employment (e.g. Poland), while others might be intolerant to
both (e.g. Sweden). See Tables 2 and 3.
Table 2. Mixed Responses to Regular and Irregular Migration
and Irregular Employment
Category I
Tolerant to regular
migration
Tolerant to irregular
migration
Tolerant to irregular work
Category II
Tolerant to regular
migration
Intolerant to irregular
migration
Category III
Tolerant to regular
migration
migration
Intolerant to irregular work
Category IV
Intolerant to regular
migration
Tolerant to irregular
migration
Category V
migration
migration
Category VI
migration
migration
Intolerant to irregular work
Table 3. Categorisation of EU Countries and Response to Regular/Irregular
Migration and Employment
Category I Category II Category III Category IV Category V Category VI
Italy
(until
2008)
Spain
UK
(until 2004)
NL
Italy
(since 2009)
Germany
UK
(since 2004)
Austria
Poland
Czech
Republic
Slovakia
Greece
n/a Norway
Denmark
Sweden
56)
Gessner, V. (1994). Global legal interaction and legal culture, Ratio Juris, 7(2), pp. 132145.
57)
Petersen, H., A.L. Kjr, H. Krunke and M.R. Madsen (2008). Paradoxes Of European Legal integra-
tion, Farnham: Ashgate, p. 6.
58)
E.g. Nelken, D. (Ed.) (1997). Comparing Legal Cultures, Aldershot: Dartmouth; Petersen et al., supra
note 57.
Another set of conditions is related to the lack of legal migration channels, which
often results in a mismatch of the level of demand for migrant labour and the
level of what is politically and legally possible.
59
Tis is observed in almost all EU
countries. In such cases where demand exceeds what is legally possible, a dilemma
arises. Employers either cannot recruit the workers they need or want or must
recruit them outside the law, while foreign workers either cannot take the jobs
available or they must immigrate and/or stay and work outside the law. Related
to this is the lack of formal employment opportunities in some countries (Greece,
Italy, and Spain). Tis prevents migrants from proving to the authorities that they
have a job or job oer, and as a consequence they fail to meet conditions of cer-
tain permits.
3. Immigration Politics, Policy Gaps and Unintended Side-eects
Tis section concentrates on paths into irregularity. It focuses on those aspects in
law and implementation that provoke, facilitate or result in irregular migration
situations. Te cases given are often examples of similar regulations and mecha-
nisms in other countries legislation.
Te country reports analysed in this article demonstrate that legal entry and
overstaying or legal entry and stay whilst working in breach of immigration regu-
lations are the main paths into irregularity. Irregular migration can follow from
both, hence both regimes can lead to overstaying; it is noteworthy that visas
requirement do not per se prevent subsequent overstaying or irregular working.
Another important path is related to the asylum system and to refused asylum
seekers who either (a) do not return, (b) are not removed and/or (c) are de facto
non-removable. Equally frequently reported are overly bureaucratic and therefore
deterring residence and work permit applications, inecient renewal and appeal
procedures or withdrawal or loss of status for various reasons which result in
irregular stay. Clandestine entry often of individuals who subsequently apply
for asylum and thus regularise their status is the least frequent path and rather
the exception. Tese patterns shall now be analysed in greater detail.
Notably, some types of violations of employment restrictions, if detected, are
qualied as irregular immigration status. Often it is apparently minor deviations
from the law, such as working longer hours than permitted or switching employ-
ers that are judged as illegal entry as in the UK. Tis is because such behaviour
is perceived as violating conditions for leave to enter, such as purpose of stay. For
instance, a person who enters on a student visa but is then found working more
than 20 hours per week is considered a worker and thus perceived to have lied to
the authorities about the purpose of his/her entry. In Germany, third country
59)
Dvell, F. (Ed.) (2006). Illegal Immigration in Europe: Beyond Control?, Houndmills: Palgrave/
MacMillan.
students that fail to obtain health insurance will not be allowed to enrol at
university (the condition being payment of a fee and proof of health insurance).
As a consequence, they will be refused a conrmation of their immigration status
and requested to leave the country; if they do not comply they then become
irregular.
Also regulations on switch of status, e.g. from student to worker, if strict or
impractical can result in irregular immigration. In Germany, previously strict
conditions are considered to be liberalised whilst in the UK previously liberal
regulations are considered to be tightened, both is due to changed economic con-
ditions. In Austria, switch of status as from temporary to long-term status is
signicantly restricted in 2005.
60
Tus in cases where career opportunities arise
or family situations change, as previously in Germany, immigrants are requested
to leave the country and apply from abroad for an according entrance visa. How-
ever, the risk that the applicant might be rejected may lead immigrants to stay on
irregularly.
Some publications expose cumbersome and inecient bureaucratic processes,
such as the metaklisi system in Greece, where the application process can take
from 1218 months.
61
Tis deters migrants and employers from applying to the
legal mechanisms and instead encourages them to turn to irregular practices. Also
family reunication regulations, notably requests for a minimum income from
a sponsor, represent severe barriers to legal migration, as in Greece, France,
Germany and the Netherlands, and are reported to provoke irregular migration.
62

And in Spain, just like in Italy and Greece, procedures for renewing residence
permits can take so long that in the meantime the applicants status expires and
the person necessarily becomes irregular.
63
Research also links irregularity to immigration policy reform. In the Nether-
lands, in 1991, access to social insurance numbers became linked to immigration
status. Tis meant that irregular immigrants who previously could work regularly
were driven into irregular work.
64
And in 1998, the Koppelingswet (Linking Act)
(Benet Entitlement and Residency Status Act) expanded the denition of irreg-
ular immigrants so that it included tolerated migrants.
65
In Austria, in 2006, the
status of immigrant women married to legal residents changed as a result of legal
60)
Kraler et al., supra note 18, et al. (2008).
61)
Maroukis, supra note 38.
62)
Maroukis, ibid.; Courau, H. (2008). Counting the Uncountable. Data and Trends across Europe France
Report, Clandestino Project, available at: http://clandestino.eliamep.gr/wp-content/uploads/2009/10/
clandestino_report_france_ nal_2.pdf.; Cyrus, N. (2008). Counting the Uncountable, Data and Trends
across Europe Germany Report, Clandestino Project. available at: http://clandestino.eliamep.gr/wp-
content/uploads/2009/10/clan destino_re port_germany_nal_2.pdf. Leerkes, A. and I. Kulu-Glasgow
(2011). Playing hard(er) to get: the state, international couples, and the income requirement, European
Journal of Migration and Law 13(1), pp. 95121.
63)
Gonzales-Enriquez (2008), supra note 50.
64)
Van der Leun supra note 13.
65)
Van der Leun and Ilies, supra note 16.
reforms.
66
Tose who had previously gained a residence permit for family reuni-
cation were in some cases refused renewal on the grounds that the minimum
income required of a legal resident so as to bring in his/her family was increased.
In the UK, in 2008, the previous immigration system of over 80 immigration
categories was replaced by a ve-tier points-based system. But some categories of
immigrants who had entered under the old system, particularly those with low or
medium skills, failed to renew their permit under the new system and were thus
deprived of their immigration status.
67
Also in France, repeated legal reforms
undermined the applicants and lawyers capacity to maintain a legal status
because legal changes in order to be fully understood and implemented take
time; in the meantime, uncertainties, misunderstandings and mistakes on all sides
can result in immigrants losing their regular status.
68
Tere also is a pertinent interplay between crime and immigration status. In
most countries irregular immigration entry, residence and/or employment is
considered a violation of administrative regulations and leads to detention and
removal (Netherlands, Germany, Hungary, Czech Republic and Slovakia). In
others, however, irregular migration or certain aspects of irregularity such as
arrival without an ID, use of false papers, e.g. a borrowed driving licence, work-
ing without permission or on borrowed papers, non-cooperation in removal
(UK), or irregular residence (Italy) as such are criminal oences and penalised
with nes (Austria), imprisonment (UK, Italy) or both (France).
69
Also facilitat-
ing entry or stay and increasingly the employment of irregular immigrants are
usually considered administrative violations or criminal oences, and thus the
facilitator or employer but not the immigrant is penalised.
70
On the other hand,
oences that result in a certain sentence, a large ne or signicant prison sentence
result in ones immigration status being withdrawn and subsequent deportation
or expulsion (e.g. UK, Germany and Poland). In Austria and Germany, after seri-
ous oences, this even applies to persons born in the country who are considered
immigrants due to the status of their parents.
Withdrawal and loss of status, as in Austria, rather than irregular entry or over-
staying are perhaps the most important pathways into irregularity. In Spain,
Enriquez-Gonzalez
71
also refers to accidental or befallen irregularity and thereby
66)
Pajares, M. (2008). Te relationship between status and migration transitions. Tematic report, Undocu-
mented Worker Transitions project, London: London Metropolitan University.
67)
Ibid.
68)
Malabre, J.-E. (2009). Discussant, Clandestino project conference, London, 27/3/2009.
69)
Tis practice has recently been ruled out, see Court of Justice of the European Union (2011). Te
Directive on the return of illegal immigrants precludes national rules imposing a prison term on an ille-
gally staying third-country national who does not comply with an order to leave the national territory.
Press release. CJEU, Luxemburg.
70)
For a complete overview of employer sanctions see Kyrieri, K.-M. (2008) Europes policy options for
ghting the illegal employment of migrant workers, EIPASCOPE 3, pp. 513.
71)
Enriquez-Gonzalez (2008), supra note 50.
highlights the crucial role of state practices and regulations in producing it. One
such practice relates to diculties in renewing or prolonging permits. In Spain,
the law regulates that in order to renew the initial permit, a migrant must have a
job and have contributed to social security for at least six months during the pre-
vious period.
72
Te same is true in Italy where migrants not only need to demon-
strate that they have means of subsistence but must also provide a work contract.
73

In both countries, with their common culture of informal economic activity, this
requirement turns out to be impossible to satisfy by many: because employers
refuse formal arrangements, migrants fail to produce contracts, and as a conse-
quence renewal of their permits is refused and they become irregular. In Germany,
social emergencies, such as long-term unemployment, homelessness, receiving
benets or falling under the Law on Assistance of Children and Youth, or cases
of marriage breakdowns within a period of two years after immigration are
responded to with withdrawal of the residence permit. Austria has similar regula-
tions; additionally, immigrants are requested to earn at least the legal minimum
income and demonstrate that they live in adequate accommodation or else their
immigration status can be withdrawn.
Te situation in CEE countries is somewhat particular. Poland, Hungary and
the Czech Republic experience large-scale cross border commuting from their
non-EU neighbour Ukraine. But Ukrainian citizens can often only enter on a
tourist visa and if they engage in economic activities these often qualify as irregu-
lar migration. Sometimes, migrants enter for the purpose of self-employment,
such as under the Svarc system in Czech Republic, but in cases where the trade
licence holder is working for just one customer their relation is interpreted as
disguised employ ment
74
and the immigration permit invalid. Similarly, migrants
can set up a joint company with other non-national partners; the partners, how-
ever, if working for the principle license holder are perceived as irregular immi-
grant workers.
Finally, in various countries asylum seekers are prevented from working, either
for a transitional period (Czech Republic) or for the entire duration of the appli-
cation process (UK and Germany). But benets are usually limited, below stan-
dard rates and often consisting of vouchers instead of cash. Tey only provide for
sub-standard living conditions and are too low to pay debts (e.g. to smugglers) or
support family members back home or in other countries. Tus, a dilemma is
created and asylum seekers often work irregularly. Tis, however, does not result
in asylum seekers getting their status withdrawn and thus does not qualify as
irregular migration; instead, it is categorised as irregular employment and not
irregular immigration.
72)
Pajares, supra note 66.
73)
Ibid.
74)
Drbohlav and Lachmanov (2008), supra note 44 p. 11.
Various research ndings demonstrate that whilst some countries are strict on
immigration, rigid on employment and tough on asylum seekers, they remain lax
on law enforcement, as in the Netherlands.
75
Others show that whilst the policy
goal is to combat irregular immigration, little eorts are made to enforce these
goals (e.g. Czech Republic, UK until 2004). Tis gives way to a kind of de facto
toleration and contributes to the emergence of an irregular immigrant popula-
tion. Other studies illustrate that irregular immigrants, even if detected, can nev-
ertheless not be deported, for instance, because they have family, as in France
76

and Austria;
77
because they lack adequate travel documents, as in Germany
78
or
Greece; because there is no readmission agreement and the country does not
accept deportees or due to lack of resources (Spain).
79
In some countries, like
Germany, such migrants are put back into the system and receive a toleration
status (Duldung), in the Netherlands and Spain they remain on municipal regis-
trars, whilst in other countries, like the UK or France, they remain in limbo.
Tus, interestingly, in several countries, many of those who are irregular never-
theless remain registered in some records (Spain: Padron; France: Aide Mdicale
dEtat; Netherlands: municipal housing; UK: National Health Service) and even
receive some benets.
Research suggests that often status is not as clear-cut as one might expect, and
that migrants are not simply regular or irregular. Instead, migrants statuses are
often a mix of regular and irregular aspects, or on a scale between these two. For
instance, migrants might have a residence status but work without permission,
might work with a permit though on another job than the one reported, or longer
hours than agreed. Te threshold between regularity and irregularity, e.g. the
number of hours worked, is often unclear or a matter of (legal) dispute. Tis legal
ambivalence is described and interpreted as semi-legality,
80
legal illegality,
81

formal informality
82
or semi-compliance.
83
75)
Van der Leun and Ilies, supra note 16.
76)
Courau, supra note 62.
77)
Kraler et al., supra note 18.
78)
Mende, U. (2006). Geduldete AuslnderInnen in Deutschland: Verloren in Ungewissheit, Berlin: Vereini-
gung Demokratischer Juristinnen und Juristen e.V.
79)
Gonzlez-Enrquez (2008), supra note 50.
80)
Dvell (2006) supra note 14.
81)
Malabre, supra note 68.
82)
Erdemir, A. and E. Vasta (2007). Dierentiating Irregularity and Solidarity: Turkish Immigrants at Work
in London, Working paper 0742, Oxford: COMPAS.
83)
Ruhs, M. and B. Anderson (2006). Te origins and functions of illegality in migrant labour markets: An
analysis of migrants, employers and the state in the UK, Working paper 0630a, Oxford: COMPAS.
4. Conclusion: Irregular Migration is Avoidable
Denitions and laws, as well as politics and policies, on irregular migration dier
widely across the European Union member states. Tese ndings have wider
implications for EU integration theory and comparative law. Notably the cases
studied here demonstrate that Gessners
84
claim of a Europe of a great variety of
legal cultural characteristics still holds true.
85
It is widely acknowledged that
despite European integration there still is considerable divergence over various
policy issues (e.g. EU membership of Turkey, a European Monetary Fund or
regularisation of irregular immigrants) and in many legal elds.
86
In the eld of
migration, the dierent cultures and policies oer dierent conditions, con-
straints and opportuni ties to immigrants and contribute to varying degrees to the
emergence of irregular immigration.
Irregular immigration has been linked by various scholars to: a) the lack of legal
migration channels (Spain, Italy, Czech Republic, Poland), b) overcomplicated,
bureaucratic, time-consuming and inecient application procedures (Greece,
Spain), c) changing and/or dicult-to-follow regulations (France, UK), d) strict
conditions placed on work permits (UK, Czech Republic), e) statuses requesting
conditions that are prone to be overstepped (UK, Germany), and f ) organisa-
tional cultures in the bureaucracies that put more emphasis on protecting the
country from illegitimate immigrants than serving newcomers as customers
(Spain, Greece).
It is evident that such policies succeed in limiting regular immigration, access
to regular employment, public services or housing. Furthermore, it is plausible to
assume that the lack of legal migration channels prevents some would-be migrants
from coming but the continuous inow of irregular immigrants as well as the
overstaying of those who are already in the country suggest that such policies to
some extent fail in preventing or reducing irregular migration. Instead, a signi-
cant (unintended) eect of limiting regular immigration and restricting employ-
ment is that migration is driven into informal, shadow and niche activities.
Tese ndings show that despite the political intention of preventing and reduc-
ing irregular migration various legislations instead contribute to its emergence.
84)
Gessner, supra note 56, 136.
85)
See, for instance, Snyder, F. (Ed.) (2000). Te Europeanisation of Law, Oxford and Portland: Hart;
Smits, J.M. (2007) Law Making in the European Union: On Globalization and Contract Law in Diver-
gent Legal Cultures, Louisiana Law Review 67(4), pp. 11811203.
86)
E.g. Tomuschat, C., H. Ktz and B. von Maydell, (Eds.) (1994). Europische Integration und nationale
Rechtskulturen, Kln, Berlin, Bonn and Mnchen: Heymanns; Zielonka, J. and P. Mair (Eds.) (2002) .Te
enlarged European Union: diversity and adaptation, London: Frank Cass; Knill, C. and D. Winkler (2006).
Convergence or Divergence of National Legal and Administrative Structures? Europeanisation Eects of
the Environmental Impact Assessment in Germany and England (part one and two), Journal for Euro-
pean Environmental and Planning Law 3(1), pp. 5351 and 3( 2), pp. 132141; Antokolskaia, M. (Ed.)
(2007). Convergence and Divergence of Family Law in Europe, Portland: Intersentia.
Tus, a considerable discrepancy can be identied between policy goals, the
reduction of immigration, and policy outcomes, the creation of irregular immi-
gration. Tis can be attributed to ve mechanisms:
1) Regulations that intend to limit migration have un-intended negative and
often inevitable side-eects and instead contribute to irregular migration.
87

2) Regulations that fail to produce the intended results reveal policy gaps
between policy goals and policy implementation.
88

3) Certain international legal norms eectively limit the states capacity to
enforce what is politically desirable and entailed by the legal code, e.g.
removal of (refused) asylum seekers or family members, and result in liberal
dilemmas.
89

4) Lack of implementation and enforcement are sometimes the result of com-
plex relations and tug-of-wars between major actors: states who aim to
enforce the law and lobby agencies such as employer associations who
refuse augmented regularisation and inspections or a civil society which
defends the rights of their (often marginalised) client group e.g. through
anti-deportation campaigns.
90

5) Policy goals often seem to have a purely discursive meaning:
91
they are
meant to demonstrate to the public that the government has migration
under control whilst in fact little eorts are made to produce according
policy outcomes.
Because of these mechanisms, a policy gap emerges between policy goal (that
migrants leave after expiration or withdrawal of their status) and policy outcome
(migrants irregularly overstay and refuse to leave). Tis can be explained by inad-
equate regulations or lack of enforcement. For instance, the withdrawal of status
in cases of unemployment may lead to migrants overstaying rather than return-
ing. Such cases demonstrate that regulations can have the opposite eect from
that which they intend. In both cases, the outcome (irregular migration) can be
87)
E.g. Engbersen, G. (2001). Panopticum Europe and the criminalisation of undocumented immigrants,
paper presented to the 6. International Metropolis Conference, Rotterdam, 2630 November 2001.
88)
Hollield, J.F. (1992). Immigration, Markets and States, Cambridge, MA: Harvard University Press;
Cornelius, W.A., P.L. Martin and J. Hollield (Eds.), (1994). Controlling Immigration: A Global Perspec-
tive, Stanford: Stanford University Press.
89)
Ibid.; Guild, E. (2001). Moving the borders of Europe, inaugural lecture, Nijmegen: University of
Nijmegen.
90)
E.g. Freeman, G. (2005). Political science and comparative immigration politics, in: M. Bommes
and E. Morawska (Eds.), International Migration Research, Aldershot: Ashgate, pp. 111128; Dvell,
F. (2007). Migration Policy divergence and civil society activism: the case of anti-deportation cam-
paigns, in: E. Berggren et al. (Eds.), Irregular Migration, Informal Labour and Community in Europe,
Maastricht: Shaker Publishing, pp. 413429.
91)
Cf. Vollmer, supra note 55, this issue.
understood as some kind of policy failure, either in the design or in the imple-
mentation and enforcement of policies.
Another result is that often there is no clear-cut distinction between regular
and irregular immigration statuses; often aspects of both are combined and result
in a fuzzy overlap of the two categories. Hence, migrants often fall on a scale
between regularity and irregularity and the threshold between the two is not
always easy to dene.
92
Tis is in contrast to often simplistic public, policy and
media perceptions which imply that a clear demarcation line can be drawn
between the good regular and the bad irregular immigrant.
Tis article demonstrates that irregular migration is a political and legal con-
struct; this implies that irregularity can be deconstructed again. It also shows that,
rst, some irregularity in migration is avoidable, and second, that in some cases it
is politics and law rather than the immigrants that must be held responsible for
irregular migration. From this it becomes evident that there is scope for improve-
ments in politics, law and implementation, so that at least some irregularity can
be avoided by addressing the shortcomings, ineciencies, or irrationalities in
migration law. Te country reports analysed in this article make various sugges-
tions: one is to prevent irregularisation, the process through which migrants
become irregular by:
a) introducing more legal migration channels, including legal access for fam-
ily members and asylum seekers;
b) keeping immigration regulations exible and allowing for some discretion
in legal/administrative decisions; and
c) allocating adequate resources to all relevant authorities as to eciently
implement the law.
A second suggestion is to reverse the process of irregularisation by legalizing or
regularizing the status of those who cannot be removed. In addition, it is sug-
gested to improve enforcement measures and resources so as to deal with those
who still do not comply. And nally, it is recommended to generally avoid (a)
inactivity and long-term de facto toleration, and (b) ideological battles, and instead
seek pragmatic solutions.
92)
Dvell, F. (2008). Clandestine migration in Europe, Social Science Information, 47(4), pp. 479497.

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Koninklijke Brill NV, Leiden, 2011 DOI: 10.

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