Regularization measures are legal tools that provide undocumented migrants with a way out from their irregular status. They may differ widely – in name, content, effects, effectiveness – but they all lay bare the gaps of one country’ s official immigration policy. This is why they are amongst the most controversial of all the schemes that States have devised to manage undocumented immigration.
The names of regularization measures – ranging from “amnesty” to “legalization” or “normalization” – as well as their application and their effects may vary hugely. All of them, though, have one element in common: the fact that they condone the undocumented migrant‘s original sin, which is having crossed the national borders or having remained within the national territory without adequate administrative permission. They, therefore, lay bare the ultimate contradiction of any given State’s national migration policies: those who benefit from such measures can do so precisely because they broke the conditions of entry or stay – thus showing not only that the States’ control over their territory is not absolute, but also that, for some reason or another, expulsions or removals are not always the State’s best options.
Why, How, and Where?
Undocumented migrants are amongst us: they live more or less openly within the national borders. They have families, create social bonds, and very often they work. Yet, the status of irregularity in which they live puts them in a vulnerable position that, at the same time, proves also quite inconvenient for their guest State. On the one hand, access to some basic services such as health, education, and social insurance is difficult for undocumented migrants and they may be subject to labor exploitation. The State, on the other hand, cannot track a part of its population, which makes its control tasks more burdensome and complex. Consequently, venues are sometimes created so as to allow undocumented migrants to make themselves known to the authorities, “coming out of the shadow” and regularizing their position.
Some broad generalizations concerning the various types of regularization tools are possible, even though, given the absolute discretion of national governments in the field, one could say that there are as many of these measures as there are States. One can, for instance, distinguish between regularization mechanisms and programs: whilst mechanisms work “case by case”, generally on a rolling basis, programs are directed towards larger groups of people and they are “one shot” measures, mostly used to “wipe clean the slate” before some immigration reform. Nevertheless, further elements can be added, each one of them combining differently with the others. For example, for some regularization tools to take effect the only factors are “time” and “work”: the migrant has to be able to show that he/she has been in the country for a specific amount of time and that he/she has been economically active. Other regularization tools instead only take effect when “human rights” requirements such as health issues or family bonds are present. Additionally, most measures only provide their beneficiaries with “temporary permits”, which, in turn, will have then to be renewed, subject to the persistence of all the necessary requisites.
In Europe alone, whilst broad regularization programs have been notoriously and controversially used mostly in the South, regularization measures are found – with different characteristics and effects – almost everywhere. A fact that confirms the broad reach of the challenge represented by undocumented presences.
Do Regularization Measures Work?
Supporters of regularization measures argue that they can improve the social conditions of migrants, reducing their vulnerability and protecting them against exploitative living and working situations. They can also contribute to reduce the importance of the black market, at the same time allowing to increase social security and tax revenues. From a political perspective, they can be seen as a way for the State to regain control over a part of its population and/or as a necessary measure to take before re-establishing tighter and more effective external and internal controls.
Critics, on the other hand, claim that regularizations increase the burden on public services such as health and education, and that they risk to increase competition in low-wage sectors of the economy. Mostly, though, the argument against regularizations is political: not only would such measures somehow reward a “deviant” behavior, but also would they encourage further irregular migration.
Do They Have a Future?
Regularizations of any kind are surely amongst the most controversial tools used by States to handle undocumented migration. This is why in times like these, when the idea of an impenetrable control over external borders and within the State seems to be the only option to reassure the public, regularizations (or the possibility thereof) disappear from the radar: the message is one of zero tolerance, of rejections at the border and immediate expulsions.
Difficult to think, however, that a narrative of this type can overcome such a polymorphous and changing reality as migration is. States are likely to still find themselves having to deal with the normative challenge represented by those who – in spite of prohibitions and risks – not only cross State borders without permission but also remain there for shorter or longer times, working, building new families and living new lives. Therefore, the importance of carefully studying regulatory mechanisms that can ensure, with the greatest possible transparency, the emergence into the legality of the undocumented persons does not seem destined to wane. It is thus essential that the debate on these mechanisms stays alive and informed, so as to allow effective and shared regulatory solutions rather than a careless lack of them, which cannot but significantly prejudice the lives of thousands of people – as well as the authority of the State itself.
Lucia Della Torre
PostDoc, nccr – on the move, University of Lucerne
Apap, J., De Bruycker, P., Schmitter, C. (2000). Regularisations of Illegal Aliens in the European Union: Summary Report of a Comparative Study, Bruxelles: Bruylant Publishers.
European Parliament, DG Internal Policies (2008). Trends on Regularisation of Third County Nationals in Irregular Situation of Stay across the European Union.
ICMPD (2009). Regine, Regularisations in Europe – Final Report.
IMSCOE (2008). Modes of Migration Regulation and Control in Europe.