[Analysis] Regularising Undocumented Migrants in the European Union: The Added COVID-19 Factor

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Daniela Movileanu

Contributor at The New Global Order

Daniela Movileanu holds an MSc in International Migration and Public Policy from the London School of Economics, where she focused on EU asylum and migration policy. She previously studied International Affairs and Philosophy at John Cabot University in Rome, Italy, specialising in migration and populism.

Latest posts by Daniela Movileanu (see all)

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• [Analysis] Regularising Undocumented Migrants in the European Union: The Added COVID-19 Factor - October 16, 2020

COVID-19 has opened a window of opportunity for revising models of migration governance in the EU Member States and reviving talks on the regularisation of undocumented foreigners – once a taboo topic. Scrolling down the lists of questions in the European Commission’s public consultation on legal migration, respondents are asked whether “the EU should support and coordinate Member States’ national approaches in developing balanced regularisation measures”. But what is regularisation? What are its advantages and disadvantages? And why has COVID-19 spiced up the political debate on regularisation?

First things first: What is regularisation?

In an extensive study commissioned by the European Commission in 2009, the authors define regularisation as “any state procedure by which third country nationals who are illegally residing, or who are otherwise in breach of national immigration rules, in their current country of residence are granted a legal status” (Baldwin-Edwards & Kraler, 2009:9). In short, regularisation – also termed amnesty, legalisation, or normalisation – is a policy tool that provides those who reside irregularly in a country with a pathway to temporary or permanent legal status. The reader interested in a detailed analysis of all the complex forms that regularisation can take is invited to consult the abovementioned study.

For now, it suffices to say that states have often considered regularisation as part of a somewhat utopian arsenal of measures designed to control irregular migration.

Why regularise undocumented migrants?

Debates on the regularisation of undocumented foreign nationals are nothing new. According to a study by the ICMPD (2012), EU Member States have launched around 70 regularisation programmes with over 6 million applicants since the 1980s. The two major arguments underlying these measures are anchored in a rights-based and an economic rationale.

From a rights-based perspective, regularisation offers the possibility to include undocumented individuals into society and formal labour market structures and thereby safeguard their fundamental rights. This argument is mainly advanced by rights groups, which often pressure governments to launch regularisation programmes as a remedy to exploitative living and working conditions. In countries such as Belgium, France, Portugal, and Spain, for instance, civil society organisations successfully lobbied governments for regularisation on several occasions in the past (Baldwin-Edwards & Kraler, 2009:83). A recent study (Kraler, 2018) shows that regularised migrants view access to social rights, work, and welfare entitlements as the greatest benefits of regularisation.

These rights-based considerations often come in combination with an economic logic centred on regulating the labour market. In this latter case, governments resort to regularisation in order to combat irregular employment and increase social security and tax revenues. In the past, the need to control the significant number of people working in the informal economy pushed countries that rely on foreign work to reluctantly launch unpopular regularisation programmes. A case in point is the Immigration Reform and Control Act (IRCA) in the USA, which legalised the status of around 2.7 million migrants between 1986 and 1999 (Castles et al., 2014:218). The same occurred in many European countries, including Italy, Spain, Portugal, and France (Levinson, 2005).

Why not regularise undocumented migrants?

Against these arguments, detractors of regularisation question its effectiveness (see Greenway et al., 2006). One objection is that regularisation does not have an unambiguously positive effect on the labour market. In slight support of this criticism, studies give a mixed picture of the relationship between regularisation and employment trends, wages, and occupational mobility (ICMPD, 2012; Kossoudji, 2016).

However, the most frequent objection – and the one that usually polarises public debate – is that regularisation has a pull effect, encouraging more people to cross borders irregularly in the hope of legalising their status one day. Although this argument is reasonable, we lack enough data to clearly confirm or disconfirm it (see Finotelli & Arango, 2011). In the EU, where people can move freely across internal borders, an additional, related problem is that an increase in the stocks and flows of irregular migrants in one country is likely to translate into a similar increase in neighbouring countries.

All these concerns surfaced in 2008, when the French Council Presidency suggested banning mass regularisations altogether (Brick, 2011). However, at the insistence of countries that struggled to control their undocumented population, this proposal was eventually attenuated in the European Pact on Immigration and Asylum, where EU Member States agreed to resort only to case-by-case, as opposed to general, regularisation (a promise soon broken). While the practice of large-scale regularisation programmes gradually fell into disuse over the past decade, COVID-19 has added a bit of spice to the debate.

Why COVID-19 spiced up the debate over regularisation

The health crisis has changed the balance between supporters and opponents of regularisation in favour of the former for at least four reasons:

• It has increased the urgency to give undocumented migrants access to basic services in order to safeguard their health and contain the spread of COVID-19;
• It has made it difficult to import foreign labour from abroad due to travel bans; this phenomenon, in turn, has incentivised governments to draw on the foreign population already present on their territory as a source of labour, especially in migrant-intensive sectors (agriculture and domestic work) and healthcare;
• It has weakened the pull-effect argument – with borders being shut down and migration flows hitting a historical low, it is unlikely that more people will be able to travel to Europe irregularly in the hope of having their status regularised;
• It has directed public attention in Europe away from immigration and softened up the opposition of those political parties that normally rally votes by campaigning against liberal migration policies.

Such changes are most visible in the political debate in Portugal, Italy, and Spain, the three countries that implemented some, albeit limited, regularisation measures during lockdowns (see Statewatch, 2020). In March this year, Portugal was the first to grant foreigners with pending asylum applications the same right as permanent residents to access social services until 30 June. Italy followed suit in May, when it granted temporary residence permits to undocumented migrants working mainly in agriculture and domestic work. In parallel, Spain passed legislation allowing specific segments of its migrant population to renew or apply for the first time for residence and work permits. Most notably, Spain also emptied its overcrowded and precarious detention centres.

These measures may seem surprising given governments’ attempts to toughen migration laws in Italy and Spain in the past years. However, we can understand their adoption against the background of the four points listed above. Any policy that could improve the condition of undocumented migrants in Italy was taboo in pre-COVID-19 times, when public attention focused almost exclusively on reducing sea arrivals.

As the pandemic reduced irregular entries and caused labour shortages, discussions on how to tackle Italy’s long-standing problems with undeclared work, and particularly with the caporalato phenomenon (the irregular recruitment of mostly migrant workers in agriculture), resumed. Regularisation was first proposed by Agriculture Minister Teresa Bellanova, a prominent figure in the fight against the caporalato. Left and centre-left parties endorsed her proposal for a combination of rights-based and economic reasons, whereas the anti-establishment Five Star Movement gave in more reluctantly (Pettrachin, 2020).

The political scene was not too different in Spain, where the measures taken in support of undocumented migrants and asylum seekers during the pandemic have been touted as a success for civil society organisations (PICUM, 2020). Rights groups found fertile ground among the left-wing fringes of the ruling coalition and pressured the PSOE to address the deteriorating situation of irregular migrants (Dìez, 2020).

Challenges and opportunities

The ad hoc regularisation measures adopted during the pandemic in Portugal, Spain, and Italy were far from perfect. They targeted a small portion of the migrant population and only for a limited period. In Italy, for instance, a major problem was that migrants could not apply for residence and work permits on their own initiative, but rather they had to wait for their employers to initiate the process and pay a lump sum of 500 euros per application.

As the diagram below indicates, these measures eventually led to the regularisation of a relatively small number of people. The fact that domestic work is the sector where most migrants (176,848 out of around 200,000) have been regularised suggests that Italy failed to improve working and living conditions in one of its most exploitative and yet profitable sectors, agriculture.

As EU Member States flounder in the pandemic economy, the policymaking community argues for a move towards a new model of migration governance that combines rights-based and economic objectives in the long term (Fanjul & Dempster, 2020).

Pooling expertise and resources at EU level to support and coordinate Member States in developing balanced regularisation measures at the national level might be a step in the right direction. Time will tell whether a proposal for an EU-wide approach to regularisation will make it on the Commission’s agenda and through subsequent negotiations.

References

Baldwin-Edwards, M., & Kraler, A. (2009). REGINE: Regularisations in Europe, ICMPD.

Brick, K. (2011). Regularisations in the European Union: The Contentious Policy Tool. Migration Policy Institute.

Castles, S., de Haas, Hein, & Miller, Mark J. (2014). The age of migration : International population movements in the modern world. Fifth edition / Stephen Castles, Hein de Haas and Mark J. Miller. ed.

Dìez, A. (2020). Spain’s Unidas Podemos party pushes for sweeping migrant regularization. El Paìs.

Fanjul, G., & Dempster, H. (2020). Regularizing Migrant Workers in Response to COVID-19. Centre for Global Development (CGDEV).

Finotelli, C., & Arango, J. (2011). Regularisation of unauthorised immigrants in Italy and Spain: determinants and effects. Documents d’Anàlisi Geogràfica, 57/3: 495-515.

Greenway, J., and others (2006). Regularisation programmes for irregular migrants (presentation). Parliamentary Assembly of the Council of Europe, Motion for a recommendation, Doc.10910 of 24 April 2006. In Documents: working papers, 2006 ordinary session (third part), 26-30 June 2006: Parliamentary Assembly.

ICMPD (2012). Regularisations – an instrument to reduce vulnerability, social exclusion and exploitation of migrants in an irregular situation in employment? Working paper prepared for the European Union Agency for Fundamental Rights (FRA) by the International by the International Centre for Migration Policy Development (ICMPD).

Kossoudji, S. (2016). What are the consequences of regularizing undocumented immigrants?. IZA World of Labor, doi: 10.15185/izawol.296.

Kraler, A. (2018). Regularization of Irregular Migrants and Social Policies: Comparative Perspectives, Journal of Immigrant & Refugee Studies, DOI: 10.1080/15562948.2018.1522561.

Levinson, A. (2005). Why Countries Continue to Consider Regularisation. Migration Policy Institute.

Pettrachin, A. (2020). The Politics of Regularisation of Migrant Labour in Italy. Migration Policy Centre.

PICUM (2020). What’s happening to undocumented people during the COVID-19 pandemic?. PICUM.

Statewatch (2020). Spain / Portugal / Italy: Partial relief: migrant regularisations during the COVID-19 pandemic. Statewatch.