Regularisations of Irregularly Staying Migrants in the EU

Front matter

Schriften zum Migrationsrecht

Regularisations of Irregularly Staying Migrants in the EU

A Comparative Legal Analysis of Austria, Germany and Spain

Preface

The following book is the revised and updated translation of my PhD thesis which was originally written in German and which I completed with distinction at the University of Vienna in May 2019. This English translation includes the legislation, case law and literature up to 31 July 2022. The update also looks at new European Court of Justice case law and the recent reform of the ‘roots’ (arraigo) regularisations in Spain (Royal Decree 629/2022).

First and foremost, I would like to thank Jonathon Watson for his careful and precise translation of this study as well as for the pleasant and productive cooperation during the translation process.

I would also like to express my gratitude to all those who supported me in completing the thesis, most importantly my PhD supervisor, Prof. Theo Óblinger from the Department of Constitutional and Administrative Law at the University of Vienna. He believed in this study from the outset. Prof. Jürgen Bast and Prof. Konrad Lachmayer are also to be mentioned for the constructive remarks made in their respective evaluations of my thesis.

My thanks also extend to the many who have accompanied me from the inception of the project to its completion. The inspiration to pursue this research came during my volunteer work as a legal advisor and representative for irregularly staying migrants and asylum seekers at the NGO ‘Deserteursund Flüchtlingsberatung’ in Vienna. Prof. Anuscheh Farahat, whom | first met in 2015 at the Network Migration's autumn conference, has continued to support me both as a colleague and friend in an incomparably great way. The same is true for Philipp Janig since ‘day one’ of my academic career (Jessup Moot Court). Associate Prof. Félix Vacas Fernändez has served as an important academic point of contact in Madrid since my Erasmus semester in 2013.

Throughout the course of writing my thesis, I also had the privilege to undertake research at different institutions, contributing particularly to the comparative legal analysis of the Austrian, German and Spanish law. I would like to thank Prof. Jürgen Bast for welcoming me to his Chair for Public Law and European Law at the University of Giessen as a guest researcher from April to July 2016. From January to June 2017, I worked as a research assistant in the Department for Labour Market and Integration Policy at the Austrian Federal Chamber of Labour, where I have been employed since March 2019.

Preface

I am especially thankful to Johannes Peyrl for always being available for professional and personal discussions.

I was able to continue my work from July 2017 to June 2018 as a researcher at the Research Centre Human Rights at the University of Vienna, headed by Prof. Manfred Nowak. Through this period, I also spent time at the Instituto Universitario de Estudios sobre Migraciones at the University Pontificia Comillas in Madrid (September-December 2017) where Prof. Cristina Gortázar Rotaeche supported me on many levels. Finally, I completed my research at the Centre for European Integration Research (EIF) at the University of Vienna from July 2018 to March 2019.

Itwould not have been possible to complete this study without the financial assistance from various bodies. Between January 2016 and March 2019, I received a scholarship from the Austrian Academy of Sciences (DOC) at the Department of Constitutional and Administrative Law at the University of Vienna. Additionally, I received a scholarship from the ‘Heinrich Graf Hardegg’sche Stiftung’ and the thesis was awarded the Theodor-Kórner-Prize (2016) as well as the Dr. Alois Mock-Science Prize (2021). The English translation and publication was financed by a FWF Stand-Alone Publication grantand the University of Vienna has contributed to the publication through the Ars Iuris Vienna - Doctoral School.

I thank the editors for accepting the thesis in the series ‘Schriften zum Migrationsrecht’, and the publishers, Nomos as well as Hart Publishing for the excellent cooperation. At Nomos, I am especially grateful to Matthias Knopik and Prof. Johannes Rux, who both put their trust and energy into this - at times daring - translation project, and Kristina Stoll for the great editing work.

This thesis would have never been completed without my wonderful friends who take me the way I am (which is not always an easy task) and who I consider family: I would like to thank Stefan Bermadinger for the countless hours talking about life; Raphaela Haberler for her sharp and honest opinions; Philipp Heiling, my oldest friend; David Lun for ‘simply’ always being there in the good and bad times; Max Märzinger for his ever valuable contributions to my life; Hanna Palmanshofer for her support in difficult times and Jorge Horacio Restrepo Moreno, mi consejero colombo-español.

Finally, the thesis is dedicated to my mother, sister and brother, who have always believed in me and my work. I thank my mother who literally raised me in the spirit of the Notorious B.I.G. quote: ‘Stay far from timid, only make moves when your heart’s in it’.

Vienna, 13 January 2023 Kevin Fredy Hinterberger

A. The challenge at hand B. Hypothesis and structure C. Current research D. Methodology I. Critical-contextual approach 1. The starting point: functionalism 2. Adding the context and... 3. ...Critical approaches to functionalism II. Critical-contextual comparison in this study 1. Content and choice of Member States 2. Integrated approach 3. Analysis from the perspective of irregularly staying migrants III. Translation

PartI- Regularisations and irregular migration in the EU legal framework

Chapter 1- Conceptualising regularisations A. Definition I. Overview of current definitions II. Elements 1. Irregularly staying migrants 2. Granting a right to stay a) Lawful b) Temporary c) Rights linked to the status d) Consolidation 3. Decision a) Individual b) Decision from the administrative authorities or the courts

Satisfying the minimum requirements

III. Interim conclusion B. Classification I. Possible starting points II. The basis: purpose of the regularisation III. Purpose-based structure

S:

Non-returnability

a) Status of toleration in residence law

b) Principle of non-refoulement under the ECHR and CFR or factual reasons

. Social ties . Family unity . Vulnerability a) Victim protection

b) Other emergency situations Employment and training Other national interests

IV. Delimitation

1. 2.

Temporary protection Marriage and registered partnerships

V. Interim conclusion

Chapter 2 - EU competence concerning irregular migration and regularisations

A. Irregular migration under EU immigration policy B. Return Directive I. General structure and content II. An obligation to regularise under the Return Directive?

1. 2.

Opponents of an obligation to regularise

Proponents of an obligation to regularise

a) Principle of non-refoulement under the ECHR and CFR

b) Permanently non-returnable

III. Interim conclusion C. EU competences under Article 79(1) TFEU I. Prevention and enhanced measures to combat irregular migration

II. Development of a common immigration policy aimed at ensuring, at all stages, the effective management of migration flows

69 69 70 71 73 76 79 80

91 91 94 94

99 100 102

106 108 110 111

Chapter 3 — Context for the integrated comparison A. Austria I

II.

III.

IV.

Historical development of the law on aliens Legal status 1. (Un)lawful residence 2. Employment 3. Social benefits 4. Healthcare General remarks on *residence permits for exceptional circumstances' 1. Overview 2. Administrative procedure a) Application b) Grant ex officio c) General requirements for the grant of residence permits and grounds for refusal d) End of the procedure 3. Consolidation of residence 4. Drawing distinctions Competences and authorities regarding aliens’ law m

I

1. Administrative jurisdiction 2. Constitutional jurisdiction

I.

Historical development of residency law

116 118 119

121 122 123 125 126 130

149 149 151

II.

III.

IV.

Legal status of foreigners 1. (Un)lawful residence 2. Employment 3. Social benefits 4. Healthcare General remarks on residence permits for humanitarian reasons 1. Overview 2. Administrative procedure a) Application b) General requirements for granting residence titles and grounds for denial c) Restriction after an asylum process 3. Consolidation of residence 4. Drawing distinctions Competences and authorities in residence law

1. Administrative jurisdiction 2. Constitutional jurisdiction

— =

III.

—

IV.

. Historical development of the law on foreigners II.

Legal status of foreigners 1. (Un)lawful residence 2. Employment 3. Social benefits 4. Healthcare General remarks on ‘temporary residence permits for exceptional circumstances’ 1. Overview 2. Roots 3. Administrative procedure a) Application b) Grounds for refusal and rejection 4. Consolidation of residence 5. Drawing distinctions Competences and authorities regarding the law on foreigners

1. Administrative jurisdiction 2. Constitutional jurisdiction

VI. Summary - The special status of regularisations in the laws concerning residency and foreigners

Chapter 4- The purpose-based integrated comparison of regularisations A. Non-returnability I. Toleration

Spain: non-statutory toleration and irregularity

Germany: statutory toleration a) Requirements

b) Status

c) Legal protection

d) Regularisation prospects Austria: statutory toleration a) Requirements

b) Status

c) Legal protection

d) Regularisation prospects

II. Non-refoulement under the ECHR and CFR or factual reasons

Austria: ‘special protection residence permit’

a) Requirements b) Right to stay

. Germany: ‘residence permit for banned deportation to a specific state' a) Requirements b) Right to stay

. Spain: ‘temporary residence permit for humanitarian reasons’ where the visa application in the state of origin is impossible

III. Interim conclusion B. Social ties I. Germany: ‘residence permit in the case of permanent integration’

Requirements Right to stay Family members: derivate right to stay

227 227

248 248 248 249

249 250 251

253 253 254 254 259

259 260 263 263

II.

III.

IV.

Germany: ‘residence permit for well-integrated juveniles and young adults’

3. Family members: derivate right to stay Austria: ‘residence permits for reasons of Article 8 ECHR’

Interim conclusion

I.

—

III.

—

IV.