Status and access to rights for migrants who cannot be returned differ across Europe

by zoejardiniere

25.01.2013 No uniform status exists for third country nationals pending return or removal from the EU Member States and the Schengen Associated Countries, according to a report that is being prepared by researchers for Ramboll and Eurasylum for the European Commission. The EU Returns Directive stipulates common standards for returns procedures, but is silent on the situation of people that the state wishes to remove from its territory, but who cannot, in practice, be returned for a variety of reasons.

The preliminary executive summary of the report concludes that it is necessary to push forward discussions, in order to move towards legislation in this area in the future.

In most of the 31 countries included in the study, there is no dedicated legislation or even specific terminology for this group of people. In these countries, according to the law, people are either allowed to stay, or be removed, there is no provision for those who fall in between. In several countries, people can remain in this situation of legal limbo for years, de facto tolerated by the state, but without any path available to regularise their immigration status. In more than half of the countries, no regularisation means is envisioned for non-removable individuals whatsoever.

In 12 countries, however, an official tolerated status exists. This status is usually only granted to the migrants who are considered to cooperate with the system, but cannot be returned through no fault of their own; in most cases this status grants the individual additional rights, but not necessarily the possibility of regularisation. It is not the case, however, that the countries with the provision of an official ‘tolerated’ status necessarily grant such people more rights than countries which do not have this legal provision. They do, however, provide a generally higher level of rights compared to migrants in irregular situations.

The research has found that non-removable migrants are not always able to access in practice the rights to which they are entitled. For example, they are more likely to enjoy their rights, such as for example enrolment in education for children, if they are provided with accommodation and not held in a detention centre.

In attempting to define the target group, the study finds a number of sub-groups, including asylum seekers whose claim has been rejected, but who cannot be returned due to a lack of travel documentation or the risk of harm in their country of origin; people who cannot be removed due to a lack of cooperation on the part of the country of origin in terms of granting travel documents; or people who cannot be returned due to their failure to cooperate with the returns procedure.

A conference was held in Brussels this week with representatives of Member States’ immigration authorities, the European Commission, and NGOs to discuss the direction that the debate should take in terms of moving towards harmonised legislation.