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The Legal Status of Irregular Migrants and Regularisations

A Comparative Legal Analysis

Kevin Fredy Hinterberger

I am currently Project Researcher (Doctoral Fellowship of the Austrian Academy of Sciences) at the Research Centre Human Rights, Faculty of Law, University of Vienna (July 2017 until June 2018). From September to December 2017 I will complete a research stay at the Instituto Universitario de Estudios sobre Migraciones, Universidad Pontificia Comillas, in Madrid.

Email: kevin.fredy.hinterberger@univie.ac.at

Research focus

  • European and Austrian Migration and Asylum Law
  • Administrative Law
  • Constitutional Law, especially Fundamental Rights
  • Comparative Public Law

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Abstract

Irregular migration is a political and social phenomenon that is construed through legal norms; in other words, legal norms produce the residential irregularity of migrants. Subsequently 'irregular' denotes the residential status of those migrants, which do not possess a right to stay due to the non-fulfilment or violation of certain legal provisions. According to the latest statistics from 2008, approximately 1% of the European population is irregular. At that time, between 1.9 and 3.8 million migrants were spread across the 27 EU Member States. This illustrates the huge social importance of an academic analysis of this topic. Moreover, the fight against "illegal immigration" is one of the top priorities of the European Union. Social as well as economic aspects make it necessary that the Member States and EU give this topic the necessary attention. My project shall contribute to this.

My thesis is that regularisations are an effective steering instrument to combat irregular migration within the EU and should be used as such. Consequently, I will initially analyse residential irregularity and regularisations from a conceptual viewpoint and the question if the EU could enact regularisations on the level of the EU. Subsequently, my work deals with a comparative examination of regularisations. Built upon my research questions (see below), the thesis is structured in two parts and six chapters.

The first part deals with the multi-level dimension of residential irregularity. Initially, I will explain the concept of irregular migration and then determine, which persons cannot be considered as irregular migrants in the EU (residentially privileged migrant groups). The negative definition that is developed in this sense is used on the one hand to delimitate the group of persons dealt with in this work and on the other hand to describe the multi-level dimension. In the second chapter, I conceptualise regularisations. I understand regularisation as an administratively respectively judicially issued decision that grants irregular migrants a right to stay if certain minimum requirements are met. The third chapter deals with the legal room for manoeuvre with regard to regularisations on the level of the EU.

The second part of my work examines Austria, Germany and Spain in comparative manner. In the fourth chapter it is necessary to deal with the migration context of the three Member States being analysed. Subsequently, I apply the contextual method of Comparative Law in the fifth chapter. It considers Law in its historical, economic, political and cultural context. I implement the comparative legal analysis in an integrated approach, which means that there will be no country reports (of Austria, Germany and Spain) in the classical sense. Rather regularisations are categorised and compared according to the purpose of the stay. The sixth and last chapter describes how a legal regularisation framework could look in the EU.

Research Questions

  1. Which legal paths lead to and out of the residential irregularity in the German, Austrian and Spanish Law?
  2. Does the European Union possess the necessary competence to enact regularisations and, if so, how could such a legal framework be implemented?
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