Communication from the Commission to the Council, the European Parliament, the European Economic and Social Committee and the Committee of the Regions - Study on the links between legal and illegal migration
Date: 2004-06-04
Institutions: European Commission
Subjects: EU migration policy, cooperation policy, illegal migration, immigration, impact study, third country

COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 4.6.2004 
COM(2004) 412 final 

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COMMUNICATION FROM THE COMMISSION 
TO THE COUNCIL, THE EUROPEAN PARLIAMENT, 
THE EUROPEAN ECONOMIC AND SOCIAL COMMITTEE AND 
THE COMMITTEE OF THE REGIONS 

Study on the links between legal and illegal migration 

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TABLE OF CONTENTS 

Introduction ................................................................................................................................ 3 

PART I – EXISTING WAYS OF MANAGING LEGAL MIGRATION................................. 3 

1.1 

1.2 

1.3 

1.4 

1.5 

Admission Regulations for Economic Migrants .......................................................... 3 

Regulating the numbers of economic migrants and forecasting needs ........................ 5 

Bilateral Labour Agreements ....................................................................................... 6 

Use of quotas to regulate bilateral schemes ................................................................. 8 

Regularisation Measures .............................................................................................. 9 

PART 2 – RELATIONSHIP BETWEEN LEGAL AND ILLEGAL MIGRATION 

FLOWS AND RELATIONS WITH THIRD COUNTRIES ..................................... 10 

2.1 

2.2 

2.3 

Impact of bilateral labour agreements on illegal migration flows ............................. 12 

Impact of visa policy on illegal migration flows. ...................................................... 12 

Impact of co-operation with Third Countries on illegal migration flows .................. 13 

PART 3 - THE WAY FORWARD .......................................................................................... 15 

3.1 

3.2 

Reinforcing consultation and information exchange at EU level .............................. 15 

Development of new policy initiatives within the framework of the common 
immigration policy ..................................................................................................... 16 

3.2.1. On legal migration.......................................................................................................... 16 

3.2.2. On illegal migration ....................................................................................................... 18 

3.2.3. On co-operation with third countries ............................................................................. 19 

CONCLUSION ........................................................................................................................ 20 

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INTRODUCTION 

This  Communication  is  the  study  requested  by  the  European  Council  on  the  links  between 
legal  and  illegal  migration.  It  explores,  for  the  first  time  at  EU  level,  whether  or  not  legal 
avenues  for  the  admission  of  migrants  reduce  incentives  for  illegal  migration  and,  more 
specifically,  to  what  extent  policy  on  legal  migration  has  an  impact,  first  on  the  flows  of 
illegal  migrants  and  then  on  cooperation  with  third  countries  in  fighting  against  illegal 
migration. 

This  mandate  derives  from  the  conclusions  of  the  Thessaloniki  European  Council  of  June 
2003, which stated that the EU needed to explore "legal means for third country nationals to 
migrate to the Union, taking into account the reception capacity of the Member States, within 
the framework of an enhanced co-operation with the countries of origin.” In this context, at 
the informal JHA council in September 2003, the Italian Presidency suggested to “its partners 
to conduct a study to define a legal migration quota system for Europe  to  be offered to the 
countries of origin and transit of the main legal migration flows in order to obtain their co-
operation in reaching an agreement on readmission (…). Subsequently, in October 2003, the 
European Council enlarged the scope of the study and concluded that, “while recognising that 
each Member State is responsible for the number of legal immigrants admitted to its territory, 
in accordance with its law and reflecting its specific situation, including labour markets, the 
European  Council  takes  note  of  the  Commission’s  initiation  of  a  study  into  the  relationship 
between  legal  and  illegal  migration,  and  invites  all  Member  States,  Acceding  States  and 
Candidate States to cooperate fully with the Commission to this end.” 

The  short  time  frame  within  which  the  study  had  to  be  finalised  did  not  allow  its 
externalisation  to  research  institutes.  The  Commission  decided,  therefore,  that  the  study 
should be limited to a fact-finding exercise conducted in cooperation with the Member States’ 
experts. It has been based in the first place on existing research in the area, complemented by 
information supplied by these experts at two meetings organised by the Commission and the 
responses to a Commission questionnaire. The representatives of the Member States and the 
New Member States on the Commission’s Committee on Immigration and Asylum followed 
the work in progress on a regular basis. 

In the first part, the Communication focuses on the management of existing channels for legal 
labour migration including the use of bilateral agreements and - taking into account the initial 
intention of the Italian Presidency - the possible use of quotas or ceilings in this context. This 
has  been  illustrated  by  identifying  some  interesting  examples  of  policy  in  the  case-studies. 
The  second  part  concentrates  on  the  relationship  between  legal  and  illegal  migration  flows 
with  a  focus  on  co-operation  agreements  with  third  countries.  Finally,  the  Communication 
draws  some  conclusions  and  recommendations.  It  should  be  noted  that  for  the  most  part 
reliable statistical data on these issues are largely inexistent at both EU and national level.  

PART I – EXISTING WAYS OF MANAGING LEGAL MIGRATION 

1.1 

Admission Regulations for Economic Migrants  

The admission of third country nationals for the purpose of employment is a matter which is 
governed  by  the  legislation  of  the  Member  States  and  admission  policies  therefore  differ 
between them since they have developed in response to various migration trends over the past 

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decades. In the post-war period migration was widely encouraged to fill key labour shortages. 
However, following economic decline in the 1970s and increasing illegal immigration flows 
in  the  1980s  and  1990s,  admission  controls  were  tightened  in  order  to  protect  the  domestic 
labour market and in some Member States, the recruitment of foreign nationals was frozen.  

The  objective  of  current  policies  and  procedures  is  to  provide  routes  of  entry  to  fulfil  the 
needs  of  the  labour  market,  whilst  at  the  same  time  protecting  the  interests  of  the  domestic 
workforce.  Third  country  nationals  wishing  to  work  in  the  EU  are  required  to  provide 
evidence  to  demonstrate  that  they  meet  certain  criteria:  such  as  an  offer  of  employment, 
sufficient  financial  resources  to  support  themselves,  adequate  health  insurance.  Sometimes 
employers in the Member  States  are  responsible for applying for work permits on behalf of 
the third country national, and must be able to demonstrate that the worker will provide skills 
which are not available on the domestic labour market. Some Member States also admit self-
employed persons, but again strict criteria must be fulfilled, particularly proof that applicants 
possess sufficient means to support themselves, and that the activity they wish to exercise will 
be of benefit to the Member State concerned. Most economic migrants are initially admitted 
on  a  temporary  residence  permit,  which  may  last  from  between  one  to  five  years.  These 
permits are renewable as long as the applicant continues to fulfils the necessary criteria - most 
importantly that he/she is still employed and that his/her skills are still required.  

Since  the  mid  1990s  new  routes  for  economic  admission  have  emerged  in  many  Member 
States  to  respond  to  labour  market  shortages  and  fast-track  or  preferential  procedures  have 
been  put  in  place  in  some  countries  especially  where  there  is  a  need  to  fill  certain  skills 
shortages  such  as  in  the  healthcare  sector.  Attracting  highly  skilled  workers  is  generally 
recognised  as  an  important  means  of  sustaining  economic  growth  and  avoiding  bottlenecks 
within domestic economies. Experience has shown that it is not always easy to attract as many 
skilled persons by these specific routes of entry as required. There are a variety of reasons for 
this,  but  it  must  be  noted  that  to  some  extent  Member  States  are  in  competition  with  each 
other when seeking to attract specific categories of third country nationals to their workforce. 

It is not only highly skilled  workers who are  in demand. Many Member States, particularly 
those of Southern Europe which are more recent countries of immigration, have experienced a 
need  for  low-skilled  workers.  Many  have  chosen  to  regulate  the  admission  of  low-skilled 
workers  through  opening  specific  routes  of  admission  or  drawing  up  bilateral  labour 
agreements. 

Case Study: German Green Card System 

Germany introduced a Green Card scheme in August 2000 aimed at specifically recruiting 
IT specialists to respond to a predicted national shortage. Following a survey of IT employers 
and  employment  projections,  the  scheme  allowed  the  recruitment  of  up  to  20,000  IT 
specialists  between  2000-2005.  Under  the  scheme,  applicants  are  permitted  to  stay  for  a 
maximum  of  five  years,  during  which  time  they  are  entitled  to  bring  family  members  with 
them.  However,  applicants  are  not  permitted  to  apply  for  permanent  residence  once  in  the 
country. Applications for the scheme can either be made directly to a German company or via 
means  of  an  online  job  fair.  Approximately  half  of  the  20,000  permits  have  been  issued  to 
date.  

Case Study: UK Highly Skilled Migrant Programme  

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The  UK  launched  a  Highly  Skilled  Migrant  Programme  at  the  end  of  January  2002  to 
create  an  individual  route  of  entry  for  highly  skilled  individuals  who  have  the  skills  and 
experience required by the UK to compete in the global economy. Applicants do not need to 
have secured a work contract, and instead are admitted to look for work or be self-employed 
initially for a one-year period. As long as the applicant remains economically active they may 
remain in the UK, and will eventually be able to apply for permanent residence. Admission is 
based on a points system, as well as immigration criteria. Points are scored in the following 
five  main  areas:  educational  qualifications,  work experience, past earnings, achievements in 
the applicant’s chosen profession, and the skills and achievements of the applicant’s partner. 
There has been a relatively high take up of the scheme. 

It  should  be  noted  that  not  all  third  country  nationals  admitted  to  the  labour  market  enter 
through  the  selective  procedures  described  above.  Admission  of  migrants  for  employment 
purposes is the main category for admission of third country nationals in only two Member 
States.  In  all  other  Member  States  the  majority  of  admissions  are  of  those  seeking  family 
reunification  and  those  who  have  been  recognised  as  requiring  some  form  of  humanitarian 
protection.  In  several  Member  States  migrants  admitted  for  family  reunification  account  for 
well  over  half  of  those  admitted.  Labour  migration  could  represent  less  than  15%  of  the 
number of persons admitted who will actually enjoy access to the labour market.  

1.2 

Regulating the numbers of economic migrants and forecasting needs 

Inflows of third country nationals admitted for employment purposes to Member States have 
increased since the mid 1990s (with growth of 20% in Denmark, UK and Sweden, reflecting 
strong  economic  growth  and  shortages  in  the  skilled  sectors).  Data  on  the  total  number  of 
migrants  admitted  to  the  EU  for  employment  purposes  are  not  available.  Although  EU 
statistical  data  on  migration  flows  has  improved  in  recent  years,  problems  are  still 
encountered  in  measuring  legal  flows  due  to  differences  between  sources  and  definitions, 
methods of data collection and legislative practices in the Member States. 

Member  States  have  different  methods  for  deciding  how  many  economic  migrants  to  admit 
each  year.  The  number  is  usually  based  on  a  national  and/or  regional  assessment  of  labour 
market  needs.  A  few  Member  States  have  quota  systems  but  the  way  they  are  used  differs 
from country to country. Some set a general total for the number of third country workers to 
be admitted each year, whilst others set more specific quotas for each sector of work or even 
for types of workers e.g. seasonal workers. Others set quotas on an annual basis after a review 
of the needs of the labour market, and consultation with labour and employer organisations. 

In  most  Member  States  it  is  necessary  to  carry  out  a  thorough  assessment  of  the  domestic 
labour  market  situation,  before  admitting  third  country  workers.  This  principle  of 
“Community preference” was expressly recognised as a guiding principle for selecting third 
country  workers  in  the  “Council  Resolution  on  limitations  on  admission  of  third-country 
nationals to the territory of the Member States for employment” of 20 June 19941. The way in 
which Member States implement this principle differs from one country to another.  

Overall employment projections point to labour shortages in the EU due to the ageing of the 
workforce and its contraction after 2010. Research also indicates that immigration flows are 
unlikely to decline for the foreseeable future. Several studies have examined whether or not 

1 

OJ C 274 of 19.9.1996, p. 3.  

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immigration, 

immigration  is  a  solution  to  this  predicted  demographic  decline.  The  Commission 
that 
Communication  on 
immigration would be increasingly necessary in the coming years to meet the needs of the EU 
labour  market.  However,  at  the  same  time  it  is  generally  acknowledged  that  immigration  is 
not the solution to ageing populations and that higher net immigration will not exempt policy 
makers  from  implementing  structural  and  other  changes  to  cope  with  the  impact  of  ageing 
populations. 

integration  and  employment2  acknowledged 

Many studies have noted the difficulties of matching immigration to labour market needs. On 
the  one  hand  labour  market  forecasts  are  by  no  means  infallible,  and  may  not  always 
accurately predict labour market trends. On the other current immigration flows do not on the 
whole  correspond  to  the  predominant  labour  market  demands  for  high  or  specific  skilled 
labour. Whilst the tendency in many Member States for immigrants to work in the low-skilled 
sectors  is  confirmed,  this  is  not  necessarily  a  reflection  of  their  skills  as  some  of  them  are 
overqualified  for  the  jobs.3  Past  experiences  of  immigration  have  demonstrated  that  it  is 
extremely  difficult  to  keep  track  of  the  length  of  stay  of  migrants  and  of  their  geographical 
and occupational mobility. Labour forecasts also have to take into account other categories of 
migrants  to  which  selectivity  may  not  necessarily  apply  (admission  for  international 
protection,  family  reunification  reasons).  Finally  this  study  shows  there  is  a  clear  need  for 
better integration policies to harness the full potential of migrants. 

1.3 

Bilateral Labour Agreements 

There  are  a  wide  variety  of  bilateral  labour  agreements  signed  by  Member  States  and  New 
Member  States  for  the  admission  of  third-country  nationals.  They  are  mainly  designed  to 
respond to labour shortages in the receiving country, but there are several secondary motives 
for signing such agreements. These can broadly be categorised as: to open new channels for 
migration,  to  improve  relationships  with  third  countries,  to  facilitate  historical  links  and 
cultural exchange, to manage migration flows better and to combat illegal migration. Often a 
combination of these factors is present. 

A  geographical  distinction  can  be  drawn  between  the  Member  States  in  their  approaches  to 
bilateral  agreements.  Northern  European  countries  first  drew  up  bilateral  schemes  in  the 
post war period to respond to specific shortages on their labour markets. Many of these were 
agreed with Southern European countries prior to their entry to the EU. Although they were 
largely  labour-market  oriented,  there  were  other  motives,  for  example,  to  maintain  “special 
relationships” with former colonies. Many of these early bilateral schemes were discontinued 
after the 1970s due to the economic downturn. Bilateral schemes signed more recently tend to 
be focussed on the admission of seasonal workers who come to work primarily in agriculture, 
construction, tourism and catering, where there is a continued demand for this type of worker. 
Some  of  these  new  seasonal  bilateral  schemes  were  created  to  provide  legal  channels  for 
previously  illegal  flows  of  seasonal  workers  notably  in  the  agricultural  sector.  Bilateral 
schemes  have  also  been  used  to  foster  better  relations  with  neighbouring  countries,  and 
especially  with  the  Accession  Countries  during  the  1990s,  which  contributed  to  their 
economic  alignment  to  the  EU.  Several  new  Member  States  have  also  signed  bilateral 

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European  Commission  –  Communication  from  the  Commission  on  immigration,  integration  and 
employment COM(2003) 336. 
European  Commission  –  Communication  from  the  Commission  on  immigration,  integration  and 
employment COM(2003) 336. 

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agreements  with  eastern  neighbouring  states.  These  have  experienced  varying  degrees  of 
success. 

Southern  European  countries  have  been  more  active  in  recent  years  in  signing  bilateral 
agreements which admit temporary or seasonal workers. This in part has been to respond to 
labour shortages in certain sectors in these countries. However, some agreements aim to open 
up  new  legal  routes  for  economic  migration  from  key  source  countries  of  illegal  migration 
and  to  strengthen  the  general  framework  of  cooperation  with  third  countries  to  improve  the 
fight against illegal migration. 

Case Study – Spain 

Spain  has  signed  bilateral  agreements  with  six  third  countries4,  many  of  which  were  key 
source  countries  for  illegal  migration  flows,  with  a  view  to  strengthening  the  general 
framework  of  cooperation  and  to  prevent  illegal  migration  and  the  exploitation  of  workers. 
The agreements follow a standard format and allow for the recruitment of both permanent and 
seasonal  workers  and  trainees,  usually  aged  between  18-35  years  of  age.  These  agreements 
also contain chapters on selection procedures, working conditions and social rights, the return 
of the migrants and provisions on the fight against illegal migration and trafficking of human 
beings.  For  seasonal  workers  there  are  special  provisions  which  require  them  to  sign  a 
commitment stating that they will return to their country of origin at the end of their contract. 
Seasonal  workers  are  also  required  to  present  themselves  at  the  Spanish  Consular  office  in 
their  country  of  origin  within  one  month  of  their  return.  Most  of  these  agreements  have 
worked  well  in  practice,  particularly  in  respect  of  seasonal  workers.  Numbers  of  workers 
admitted  are  determined  by  quotas  which  are  set  for  each  sector  of  work,  rather  than  by 
nationality. 

The  rights  granted  to  workers  under  these  schemes  vary  according  the  objective  of  the 
agreement  and  the  terms  and  conditions  negotiated  between  the  sending  and  receiving 
countries. Most ensure that workers admitted are entitled to the same working conditions and 
rates of pay as nationals. Some incorporate provisions to ensure the return of workers at the 
end of their stay, such as by transferring social security contributions, and in some instances 
requiring employers to pay a deposit for each worker admitted, which is refundable only if the 
worker returns. Family reunification rights are not granted to seasonal workers, which is an 
additional  means  of  securing  their  return.  For  many  third  country  nationals,  participating  in 
bilaterals  agreements  is  beneficial  and  many  make  their  living  from  participating  in  such 
schemes  on  a  regular  basis.  It  is  estimated  that  most  workers  send  at  least  50%  of  their 
earnings  abroad  back  home.  Bilateral  schemes  are  an  attractive  way  for  workers  to  develop 
their skills, experience better working conditions and to earn some hard currency, as well as 
experience life in another country. 

Responsibility for the administration of bilateral schemes appears to be shared between both 
immigration and employment ministries at local, regional and national level. There is often a 
partnership between many interested parties, such as trades unions, employers, labour offices 
and  central  government.  In  some  Member  States,  regional  administrations  have  become 
increasingly  active  in  the  recruitment  of  foreign  workers.  As  many  of  the  workers  admitted 
under  the  bilateral  schemes  are  recruited  to  small  and  medium  sized  enterprises,  regional 
labour  offices  are  better  placed  to  respond  to  the  specific  needs  of  the  local  economy.  For 

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Romania, Bulgaria, Ecuador, Colombia, Dominican Republic, Morocco.  

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well-established schemes, many employers and private agencies are actively involved in the 
recruitment of workers. Some receiving countries have set up offices in the third countries in 
order  to  recruit  and  even  provide  training  for  workers  to  be  admitted.  In  some  cases, 
companies themselves have become involved in this process and now send out personnel to 
sending  countries  in  order  to  train  and  recruit  workers  so  that  they  will  be  more  easily 
integrated into enterprise when they arrive in the Member State. 

1.4 

Use of quotas to regulate bilateral schemes 

Quotas  have  been  used  by  several  Member  States  in  bilateral  agreements,  although  the 
numbers of workers admitted varies according to the objective of the scheme and the sending 
country. Governments set quotas on an annual basis in consultation with relevant bodies such 
as  industry,  employers,  trades  unions  and  labour  offices,  to  take  account  of  labour  market 
needs.  Usually  quotas  are  set  for  each  employment  sector,  although  some  countries  specify 
quotas for each geographical region, and in some cases by country of origin of the applicant. 
Some  Member  States  set  quite  high  quotas  for  seasonal  workers,  as  it  has  proved  very 
difficult to find domestic workers who are willing to carry out the tasks required, or to move 
within the country to the area where they are needed. 

Case Study - Italy 

Italy has a well-developed quota system which has been in place since 1998. Under legislation 
introduced  at  that  time,  the  Government  is  required  to  publish  an  annual  decree  listing  the 
quotas  broken  down  by  region,  and  sector  of  employment.  The  quotas  are  established 
following  the  agreement  of  several  different  bodies  including  the  Ministry  of  Labour,  local 
and  regional  offices,  trades  unions  and  employers.  The  totals  for  the  quotas  are  estimated 
according  to  local  employment  rates.  So-called  “privilege  quotas”  are  included  within  the 
decree  which  set  ceilings  for  third  country  workers  from  specific  countries5.  In  some  ways 
these quotas are seen as being outside labour market calculations, and are set at a sufficiently 
low  level  so  that  they  can  be  easily  absorbed  into  the  labour  market  (up  to  a  maximum  of 
3000 workers per year per country). These quotas are offered to third countries in return for 
their cooperation on readmission and reducing illegal migration flows. Such quotas may, and 
have been reduced if the third country is considered not to be co-operating fully. The quota 
for Morocco was reduced in this way in 2001. 

Several  Member  States  are  critical  of  the  potential  inflexibility  of  offering  bilateral  labour 
quotas  as  incentive  for  better  cooperation  of  third  countries  in  the  fight  against  illegal 
migration.  It  is  feared  that  quota-based  bilateral  agreements  could  limit  states’  abilities  to 
respond to the needs of the labour market. Although it may be acceptable to reduce quotas as 
a  sanction  for  non-cooperation  by  a  third  country,  it  could  prove  to  be  difficult  to  reduce 
quotas in the same way for political and/or labour market reasons. Another factor to consider 
is the potential discriminatory effect of preferential quotas on those countries with which such 
agreements  are  not  signed.  Whilst  such  schemes  aim  to  facilitate  co-operation  with  certain 
third  countries,  those  countries  which  are  not  offered  similar  treatment  may  see  this  as  a 
reason  to  frustrate  cooperation  with  the  EU.  In  this  way,  it  could  be  said  that  preferential 
quotas may in the short term facilitate co-operation with target third countries, but have the 
potential to frustrate cooperation with other third countries in the long run. 

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1.5 

Regularisation Measures 

The fact that many third country nationals reside and work illegally in Europe and that some 
Member States establish programmes to “regularise” them demonstrates the current limits of 
the measures in place to manage the existing channels for legal immigration. Although not a 
standard  objective  of  immigration  policy,  regularisations  have  become  more  of  a  feature  in 
Member  States,  with  over  26  operations  taking  place  since  the  1970s.  The  use  of,  and  the 
motivations  behind,  regularisations  in  Member  States  are  diverse;  in  some  they  are  never 
used,  whilst  they  have  been  a  more  frequent  phenomenon  in  others.  The  frequency  of 
regularisation operations has shown a marked rising trend since the middle of the 1990s. The 
New  Member  States,  being  in  general  relatively  new  countries  of  immigration,  have  not 
carried out regularisations, except on a case-by-case basis. It is useful to distinguish between 
temporary regularisations, under which regularised persons are issued a residence permit for a 
limited  duration,  renewable  only 
if  certain  conditions  are  fulfilled  and  definitive 
regularisations in which migrants are issued with permanent residence status. In most cases, 
Member States tend to issue renewable temporary permits, which means that it is possible for 
the  holders  to  fall  back  into  illegal  status  if  they  later  cease  to  fulfil  the  conditions  of  the 
permit.  This  may  result  in  some  migrants  being  regularised  again  under  subsequent 
regularisation programmes. 

Case Study – Belgium 

Belgium has carried out two large-scale regularisation programmes, one in 1974 and the other 
in  1999.  The  1999  regularisation  was  intended  to  be  a  “one-shot”  operation  and  aimed  at 
bringing  an  end  to  the  marginalisation  of  those  who,  although  illegal,  were  nonetheless 
integrated into economic and social life in Belgium. The other main motivation was to build 
social cohesion and to tackle criminal networks which exploited illegal migrants. In practice, 
the  regularisation  allowed  the  government  to  regularise  those  whose  medical  condition 
prevented them from being returned, those who had been illegally residing in Belgium for a 
long time who were well integrated, and also those who had been waiting for a decision on an 
asylum application for more than three years. Applicants were given a three-week period to 
submit their applications during which time Belgium temporarily reinstated its border controls 
in order to prevent an influx of hopeful illegal migrants from neighbouring Member States.  

Over 37,146 applications for regularisation were submitted, involving a total of over 50,000 
individuals,  of  which  80%  were  recognised.  Preliminary  evaluations  of  the  regularisation 
programme  indicated  that  the  flows  of  illegal  migrants  actually  increased  following  the 
measure; indeed the measure is considered to have sent an erroneous signal to potential illegal 
migrants,  that  their  stay  would  ultimately  be  tolerated.  A  subsequent  rise  in  family 
reunification  applications  was  noted  to  have  been  a  consequence  of  the  regularisation; 
applications rose from 2122 in 1999 to 4500 in 2003. 

Most  Member  States  recognise  that  for  pragmatic  reasons  the  need  may  arise  to  regularise 
certain  individuals  who  do  not  fulfil  the  normal  criteria  for  a  residence  permit.  By  carrying 
out regularisation operations, governments attempt to bring such migrants into society rather 
than leaving them on the margins, subject to exploitation. Certain countries refuse to carry out 
regularisations at all, except on a case by case basis in exceptional circumstances. They prefer 
to carry out so-called humanitarian or protection regularisations aimed at granting a right of 
residence  to  specific  categories  of  persons  who  are  not  eligible  to  claim  international 
protection, but who nevertheless cannot be returned to their country of origin. These types of 
regularisations  are  often  related  to  asylum  policy.  Some  Member  States  have  carried  out 

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targeted  regularisation  programmes  of  this  type  aimed  at  groups  asylum  seekers  from 
countries  from  which  they  have  had  significant  inflows,  but  who  have  been  present  in  their 
territory  for  a  long  period  (for  instance  those  who  had  fled  from  the  conflict  in  the  Former 
Republic of Yugoslavia). 

Other Member States are prepared to carry out “fait accompli” regularisations. Some have 
carried  out  single  “one-shot”  measures,  but  others  have  needed  to  carry  out  such  measures 
more frequently. “Fait accompli” programmes involve the regularisation of illegal migrants, 
usually those who are already illegally employed. The fact such regularisations need to take 
place highlights the existence of a dynamic hidden economy in many Member States and they 
are in part economically motivated. Similar regularisations carried out in one Member State 
were  actually  driven  by  employers,  in  recognition  of  the  fact  that  some  sectors,  particularly 
domestic services, had become dependent on illegal labour which it is desirable to bring into 
the  formal  economy.  The  development  of  this  sector  is  indicative  of  new  openings  in  the 
labour market, linked to the ageing population and to the new needs for care services towards 
elderly people. Wide scale regularisations have implications for many areas of society since it 
is  necessary  for  governments  to  obtain  support  for  the  measures  amongst  key  actors,  e.g. 
employers and trades unions, whilst at the same time introducing further measures to tackle 
illegal migration in order to maintain public support.  

The  study  looked  at  the  effectiveness  of  regularisation  programmes  not  only  for  the 
migrants concerned, but also for the state. Firstly they allow better population management, 
enabling  governments  to  have  a  clearer  picture  of  those  who  are  present  on  their  territory. 
They also serve to tackle illegal working and increase government revenue through taxation 
and  social  security  payments  by  bringing  illegal  workers  into  the  regular  labour  market, 
provided  that  the  persons  concerned  manage  to  maintain  or  obtain  such  employment. 
However, it must be noted that the effectiveness of regularisations on reducing the extent of 
the unregulated labour market has been questioned. On the other hand, it is believed that to a 
certain  extent  regularisations  offer  a  form  of  encouragement  to  illegal  migration.  This  has 
been  experienced  in  Member  States  which  have  carried  out  wide-scale  regularisation 
programmes and such measures appear to be self-perpetuating in that often further wide-scale 
measures are required only a few years later. A study of regularisation programmes in eight 
Member  States  concluded  that  they  take  place  on  average  every  6.5  years,  indicating  the 
persistence  of  immigration  and  the  replenishment  of  certain  stocks  of  illegal  migrants. 

PART  2  –  RELATIONSHIP  BETWEEN  LEGAL  AND  ILLEGAL  MIGRATION 

FLOWS AND RELATIONS WITH THIRD COUNTRIES 

There  are  many  forms  of  illegal  migration.  Some  migrants  enter  the  territory  of  a  Member 
State illegally by land, air or by sea. Some use false or forged documents, others try to enter 
either on an individual basis or using organised criminal networks, active in particularly in the 
two most odious forms of illegal immigration, namely the networks of smugglers acting for 
non-humanitarian reasons and the exploitation of foreign nationals in the form of trafficking 
in  human  beings.  A  significant  share  of  illegal  residents  enters  legally  with  a  valid  visa  or 
under a visa-free regime, but “overstays” or changes the purpose of stay without the approval 
of the authorities. Some, such as failed asylum seekers, enter into an illegal status if they do 
not leave the country once all consideration of their asylum applications has been exhausted.  

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The problems of identifying the size and characteristics of migrant populations and recorded 
flows,  both  legal  and  illegal  are  well  documented.  By  definition,  as  illegal  migrants  do  not 
identify themselves to the authorities, it is difficult to establish a clear picture of the scale of 
illegal migration in the Member States of the European Union. Estimates of illegal migration 
flows  can  only  be  derived  from  existing  indicators  linked  to  the  phenomenon,  such  as  the 
numbers of refused entries and removals, apprehensions of illegal migrants at the border or in 
the  country,  rejected  applications  for  asylum  or  other  forms  of  international  protection,  or 
applications  for  national  regularisation  procedures.  To  these  numbers  must  be  added  the 
considerable number of those who do not apply for any form of international protection, either 
because  they  entered  legally  or  they  “overstay”.  From  these  indicators,  estimates  of  annual 
inflows of illegal migration into the EU are thought to reach over six figures. More precise 
figures  cannot  be  considered  reliable.  Moreover,  such  estimates  do  not  add  to  the 
understanding of the complexities of illegal migration and are open to misinterpretation. The 
scale  of  illegal  migration  is  nevertheless  considered  to  be  significant,  and  the  reduction  of 
illegal  migration  flows  is  a  political  priority  at  both  national  and  EU  level.  It  is  therefore 
important to have an understanding of who illegal migrants are, and why they come to the EU 
in order to establish effective policy solutions to combat the phenomenon.  

Research  on  the  profile  of  illegal  migrants  is  fairly  scarce.  However,  there  is  evidence  to 
suggest that the highest percentage of illegal residents is males between the ages 20 and 30, 
who are young, mobile and willing to take risks. An increase in the numbers of young women 
migrants  and  a  far  smaller  share  of  elderly  people  of  both  sexes  have  been  noted  amongst 
illegal migrants. Some information available in Member States indicates that illegal migrants 
are generally low skilled, and therefore do not generally match the shortages in the declared 
labour market. However, other research suggests that an increasing number of illegal migrants 
are educated, and choose to migrate as they are in search of a better life. Usually there are a 
range  of  motives  behind  decisions  to  come  to  the  EU;  economic  considerations  are  by  no 
means  the  only  factors.  Decisions  to  migrate  are  based  on  an  individual  assessment  of  a 
number  of  push  factors  such  as  unemployment  or  permanent  low-wage  levels;  natural 
disasters or ecological devastation and of pull factors such as informal sector and employment 
with  higher  level  of  wages;  political  stability,  maintenance  of  the  rule  of  law  and  effective 
protection  of  human  rights;  different  labour  market  conditions.  Illegal  migrants  make  their 
decisions despite various other factors, which have a deterrent effect, such as high costs for 
facilitation services, and risk  of interception and prosecution  by border  authorities,  amongst 
others. 

Once  in  the  EU  many  illegal  migrants  are  able  to  find  work  in  the  hidden  economy, 
demonstrating  that  there  is  a  clear  link  between  illegal  migrants  and  the  unregulated  labour 
market. Within the EU, the shadow economy is estimated to be between 7-16% of EU GDP6, 
although  this  is  by  no  means  entirely  made  up  of  illegal  migrants.  Illegal  migrants  work 
mostly in the low-skilled sector such as in construction, agriculture, catering or cleaning and 
housekeeping  services  to  support  themselves.  Often  they  are  hired  for  the  so-called  “3  D”- 
jobs  (dirty,  dangerous  and  demanding  work),  which  are  not  sought  after  by  the  domestic 
labour  force.  The  tendency  for  illegal  migrants  to  be  employed  in  the  low-skilled  shadow 
economy is not only due to the fact that they do not have the appropriate status, qualifications 
or the required language skills for other jobs. Skilled illegal migrants may find it difficult to 
work  in  the  sector  in  which  they  were  trained  not  only  because  they  lack  appropriate  work 
permits, but also because their qualifications are not recognised within the EU. These people 

6 

Council Resolution on transforming undeclared work into regular employment, October 2003. 

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work  illegally  in  the  low-skilled  sector  in  a  Member  State  due  to  their  lack  of  proper 
documentation and often the salary is much higher than that for their skilled job in the country 
of origin. 

2.1 

Impact of bilateral labour agreements on illegal migration flows 

First  of  all  it  is  important  to  distinguish  between  bilateral  schemes  which  admit  seasonal 
workers and those which admit temporary or permanent workers. Many of the early schemes 
which  admitted  the  latter  were  designed  predominantly  to  address  labour  market  shortages. 
These  schemes  are  considered  by  some  Member  States  to  have  had  the  effect  of  increasing 
migratory pressure, due to the fact that many of those admitted became permanent residents 
and subsequently submitted applications for family reunification. 

For those Member States which signed bilateral schemes motivated in part to reduce illegal 
migration flows, assessments of the impact are mixed. Most do not see a direct link between 
the  introduction  of  bilateral  schemes  and  a  reduction  in  illegal  migration  flows.  Many  have 
found  that  it  is  difficult  to  identify  the  impact  of  bilateral  agreements  on  illegal  migration 
flows, as there are often many other factors at play which contribute to a reduction in illegal 
migration.  In  several  Member  States,  bilateral  schemes  have  only  been  introduced  fairly 
recently  and  it  is  therefore  too  early  to  determine  if  such  measures  have  had  a  sustained 
impact on reducing illegal flows. Some have found that signing bilateral agreements has not 
in  itself  reduced  illegal  migration,  but  has  rather  helped  develop  co-operation  with  third 
countries on migration issues in general. 

Only one Member State considers the introduction of bilateral labour schemes to have had a 
direct impact on reducing illegal migration flows. However, in this instance the impact cannot 
solely be attributed to the bilateral schemes in question, as they were offered as an incentive 
to the signing of readmission agreements, and were part of a package of measures to facilitate 
co-operation  with  third  countries,  which  also  included  financial  assistance,  police  co-
operation, training and capacity building. Furthermore in the period in which the decrease in 
illegal  flows  took  place,  it  was  generally  perceived  that  there  was  an  overall  decrease  in 
illegal migration towards the EU. 

It must be recognised that some illegal migration will take place whatever legal channels are 
put  in  place  since  there  will  always  be  some  pull  or  push  factors  which  are  not  affected  by 
them.  Some  migrants  wishing  to  come  to  the  EU  will  not  be  eligible  to  participate  in  such 
schemes, or there will not be sufficient capacity in the schemes to allow all those who wish to 
participate. Furthermore, as mentioned above, the reasons why migrants decide to come to the 
EU are complex, and not only economically motivated. Some migrants who end up residing 
illegally in Member States have left their countries for reasons linked to conflict or instability 
in their country of origin, but do not individually qualify for humanitarian protection. 

In  summary  the  impact  of  bilateral  labour  agreements  on  illegal  migration  flows  to  some 
extent depends upon the motivation behind the scheme. Even for those schemes which have 
the  primary  objective  of  reducing  illegal  migration  flows,  it  is  not  possible  to  conclusively 
isolate their impact, given the many other factors involved. 

2.2 

Impact of visa policy on illegal migration flows. 

Apart  from  bilateral  labour  agreements,  most  Member  States  and  New  Member  States  have 
had a limited experience of using other legal migration measures to reduce illegal migration 

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flows. One way in which migrant flows have traditionally been regulated is through changes 
in  visa  policy.  Since  the  Treaty  of  Amsterdam  came  into  force  (1999)  the  Community  has 
competence over visa policy in the Member States (with the exception of the UK and Ireland). 
This includes agreeing a list of which third country nationals should be subject to or exempt 
from visa requirements7. This decision is made following “a thorough evaluation on a case 
by case basis of several criteria linked amongst other things to illegal migration, public order 
and  security  as  well  as  the  EU’s  external  relations  with  third  countries,  whilst  at  the  same 
time taking into account regional coherence and reciprocity”. 

Modification of these lists is decided by a qualified majority of the Council on a proposal by 
the  Commission,  and  after  consultation  with  the  European  Parliament.  Since  the  lists  were 
established  only  a  few  countries  have  been  transferred  between  them.  In  2000  the 
Commission proposed that Bulgaria and Romania should be moved from the negative to the 
positive list in recognition of the closer relations between these countries and the EU, and in 
the  spirit  of  free  movement  of  citizens.  The  Council  agreed  in  March  2001,  after  the 
consideration  of  two  detailed  reports  on  measures  taken  to  combat  illegal  migration  flows, 
border controls and visa policy. The visa restrictions were lifted from January 2002. 

In March 2003, the Council decided8 to move Ecuador from the positive list to the list of third 
countries whose nationals must be in possession of visas when crossing external borders. This 
decision was primarily based on considerations relating to proven risks of illegal immigration, 
underpinned  by  figures  and  statistics  from  a  number  of  Member  States.  The  impact  of  this 
decision has not yet been assessed due to the short period of implementation. This assessment 
will  be  essential  and  could  confirm  whether  or  not  there  is  a  direct  link  between  the 
imposition of visa requirements and a slowing down of illegal migration. On the contrary, it 
seems  quite  difficult  to  prove  a  link  between  the  lifting  of  visas  requirements  and  a 
subsequent increase of illegal migration. Experiences have been different and seem to show 
that  there  are  several  other  factors  which  can  come  into  play  in  favour  of  or  against  an 
increase in flows.  

As far as the visa policy of third countries is concerned, one notable example is the change to 
visa  regimes  made  by  Bosnia-Herzegovina,  which  was  a  key  transit  country  for  illegal 
migration  to  the  EU.  When  the  authorities  introduced  visa  regimes  for  Iranian  and  Turkish 
nationals, this led to a marked drop in the number of migrants from these nationalities arriving 
illegally in the EU via Bosnia-Herzegovina. 

2.3 

Impact of co-operation with Third Countries on illegal migration flows  

The Tampere European Council and several subsequent European Councils have underlined 
the need  for a comprehensive  approach to migration, addressing  human rights, political and 
development  issues  in  countries  and  regions  of  origin  and  transit.  Partnership  with  third 
countries was considered to be one of the key elements for the success of such a policy. Since 
Tampere, the Commission has made special efforts to integrate migration policy into the EU’s 
external  policies  and  programmes.  The  Communication  on  the  integration  of  migration  in 
relations with third countries9 emphasised the potential of greater synergy between migration 
and  development  policies.  The  European  Councils  of  Seville  and  Thessaloniki  both  paid 

7 
8 
9 

Council Regulation (EC) n°539/2001. 
Council Regulation (EC) n° 453/2003 of 6.3.2003, JO L 69 of 13.3.2003. 
COM(2002) 703 of 3.12.2002. 

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specific  attention  to  the  efforts  third  countries  would  need  to  undertake  in  fighting  illegal 
migration.  The  General  Affairs  Council  of  8  December  2003  established  a  so-called 
monitoring  and  evaluation  mechanism.  The  Commission  is  invited  to  report  annually  on 
cooperation with third countries and its first report is expected by the end of 2004. The report 
will contain an overview of the efforts third countries are making in fighting illegal migration 
and the technical and financial support provided by the EU and its Member States. 

The co-operation of third countries is vital if illegal migration flows are to be reduced and in 
this  context  evaluating  the  impact  of  the  various  measures  and  incentives  which  have  been 
used  is  important.  The  experience  of  Member States  and  New  Member  States  in  improving 
cooperation with third countries to control illegal migration flows by informal means appears 
to be limited. Some have found it more effective to sign police co-operation or border guard 
agreements, within which a readmission element is included, rather than formal readmission 
agreements. Such agreements have allowed Member States to develop useful mechanisms for 
the  exchange  of  information  and  joint  training,  which  have  not  necessitated  the  use  of 
incentives. These agreements often include provision of technical support which has proved 
very useful on a practical level. Other Member States have entered into informal co-operation 
with  transit  countries  to  tackle  particular  flows  from  third  countries  without  drawing  up 
formal  readmission  agreements.  Ad  hoc  co-operation  in  this  way  can  produce  beneficial 
results  in  responding  to  specific  flows  from  countries  which  may  otherwise  be  reluctant  to 
enter into formal readmission agreements. Member States and New Member States have also 
been active in signing both formal and informal readmission agreements with third countries 
in  order  to  facilitate  the  return  process.  In  the  context  of  formal  national  readmission 
negotiations,  as  it  is  an  international  obligation  for  third  countries  to  readmit  their  own 
nationals,  Member  States  are  not  prepared  to  offer  incentives  to  third  countries  in  order  to 
sign  an  agreement  for  this  purpose.  However,  some  are  prepared  to  do  so  in  cases  where 
agreements  readmit  both  own  and  third  country  nationals,  as  it  is  recognised  that  signing 
readmission  agreements  is  generally  more  advantageous  to  Member  States  than  to  third 
countries. The different types of incentives offered include technical support and assistance in 
controlling migration flows, border control training and police co-operation, and the provision 
of  technology  and  equipment,  which  contribute  to  the  third  countries’  capacity  to  manage 
migration  flows.  The  provision  of  incentives  is  not  normally  included  in  the  text  of  the 
readmission agreements themselves, to ensure that the implementation of the agreements does 
not  become  conditional  on  the  incentives.  One  Member  State  has  offered  bilateral  labour 
quotas to third countries. The impact of this policy has been analysed in section 1.4 above. 

Given  the  current  state  of  negotiations,  a  different  approach  to  incentives  for  signing 
Community  readmission  agreements  may  be  required.  In  the  course  of  these  negotiations, 
third  countries  are  asking,  among  others,  for  better  integration  of  their  nationals  in  the 
European Member States, lifting of visas restrictions, visas facilitation for certain categories 
of  persons,  quotas  for  permanent  workers  or  seasonal  workers.  Incentives  which  have  been 
offered  so  far  in  the  conclusion  of  Community  agreements  include  visa  facilitation,  law 
enforcement co-operation, and financial and technical support. The merits of these incentives 
will be examined in more detail in the forthcoming Commission report on the priorities for the 
successful development of a common readmission policy. However, it is clear that a flexible 
range of incentives will be necessary in order to secure future agreements.  

Increasingly the countries neighbouring the EU are confronted with migration problems. The 
presence  of  an  ever  growing  foreign  population  can  lead  to  social  tensions  within  these 
countries  and  receiving  countries  are  confronted  with  the  need  to  step  up  their  efforts  in 
managing migration. The issues of transit migration and neigbouring countries becoming 

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countries  of  destination  are  being  discussed  between  the  EU  and  the  third  countries 
concerned. The EU is providing and envisages further technical and financial assistance under 
relevant  Community  instruments  (Tacis,  Meda,  Eneas)  to  support  these  countries  in  their 
efforts  to  better  manage  migration,  including  an  effective  and  preventive  policy  in  the  fight 
against  illegal  migration.  In  addition,  the  New  Neighbourhood  Instrument  which  is  being 
developed by the Commission to promote cross-border cooperation will include management 
of migration as one of the priority areas for cooperation. Some neighbouring countries have 
developed action plans specifically targeted at illegal migration and the EU is ready to support 
their implementation. 

PART 3 - THE WAY FORWARD 

3.1 

Reinforcing consultation and information exchange at EU level 

This  study  has  revealed  that  there  is  a  clear  lack  of  reliable  and  comparable  data  at  EU 
level. Measures are already being taken to improve the collection and analysis of Community 
statistics.  The  Commission  has  now  undertaken  to  produce  an  annual  statistical  report  on 
migration including a statistical analysis of the main migration trends in the Member States. 
Based on the action plan for Community statistics in the field of migration10, a proposal for an 
EU regulation on the collection of Community statistics on migration, citizenship and asylum, 
will be put forward in June 2004, to be followed by a series of implementing measures. 

The findings of the study illustrate the need to make a more intensive and targeted use of 
consultation and information exchange in specific areas, which have a significant impact on 
several Member States or on the EU as a whole. In its November 2000 Communication on a 
Community Immigration Policy11 the Commission made a proposal for meeting this need, and 
gave further details in its two 2001 Communications12. The 2001 Laeken European Council 
explicitly  called  for  an  enhanced  exchange  of  information  in  the  field  of  immigration  and 
asylum. In response to this call, the Commission established in 2002 an expert group, known 
as  the  “Committee  on  Immigration  and  Asylum”  to  lead  a  communication  and  consultation 
procedure  to  spread  best  practices  and  achieve  greater  convergence  of  asylum  and 
immigration  policies.  Regular  meetings  of  the  Committee  on  Immigration  and  Asylum  now 
take place. 

These  arrangements  are  complemented  by  the  European  Migration  Network  which  aims  to 
build up a systematic basis for monitoring and analysing the multidimensional phenomenon 
of  migration  and  asylum  by  covering  a  variety  of  its  dimensions  -  political,  legal, 
demographic,  economic,  social,  and  identifying  its  root  causes.  The  information  made 
available or processed is intended to help provide the Community and its Member States with 
an  overall  view  of  the  migration  and  asylum  situation  when,  in  their  respective  areas  of 
competence, they develop policies, take decisions or decide on action. The initial pilot project 
was endorsed by the Thessaloniki European Council in June 2003. After its evaluation in the 
course  of  2004,  the  Commission  will  examine  the  possibility  of  setting  up  a  permanent 
structure  with an appropriate legal  basis bearing  in  mind  a  parallel  initiative  which  is  being 
examined within the framework of the Council of Europe. 

10 

11 
12 

Communication from the Commission to the Council and the European Parliament to present an Action 
Plan for the collection and analysis of Community Statistics in the field of migration. COM(2003) 179. 
COM(2000) 757 final of 22.11.2000. 
COM(2001) 387 final and COM(2001) 710 final 

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Other steps have been taken to enhance the exchange of information in specific areas, notably 
the establishment of a  network of National Contact Points  for  Integration.  The  Thessaloniki 
European Council endorsed this initiative stressing the importance of developing co-operation 
and exchange of information within the network with a view in particular to strengthening co-
ordination  of  relevant  policies  at  national  and  European  level.  Shortly  after,  the  national 
contact points agreed on an intensive work programme of exchange of information and best 
practices  within  three  policy  fields,  namely  the  introduction  of  newly  arrived  immigrants, 
language  training,  and  participation  of  immigrants  in  civic,  cultural  and  political  life.  They 
decided  to  develop  a  handbook  on  integration  for  practitioners  and  policy  makers.  These 
developments will be highlighted the first Annual Report on immigration and integration that 
the Commission is preparing. 

Other  measures  to  reinforce  information  exchange  have  taken  place  in  the  area  of  illegal 
immigration. These initiatives are focused on the exchange of operational information within 
the framework of the Council’s ad hoc working party, CIREFI. An early warning system has 
been created in order to exchange information on clandestine immigration and the routes used 
by smugglers of human beings. This system will be updated by the creation of a “secure web-
based Information and Co-ordination Network for management migration services”13.  

The Commission intends to reinforce information exchange and consultation in line with the 
priorities set out above within the framework of the Committee on Immigration and Asylum. 
At  a  later  stage  –  in  the  light  of  further  experience  with  this  procedure  –  the  usefulness  of 
proposing  a  concrete  legal  basis  to  formalise  its  operation  and  to  ensure  coherence  and 
complementarity between the different fora will be considered. 

3.2 

Development  of  new  policy  initiatives  within  the  framework  of  the  common 
immigration policy 

3.2.1. On legal migration 

All  Member  States  have  channels  for  the  admission  of  labour  migrants,  notably  for  third 
country nationals with specific skills. Most Member States suffer shortages of skilled labour 
and  are  developing  specific  recruitment  schemes,  as  shown  in  the  case  studies  on  Germany 
and  the  UK.  To  a  certain  extent  these  Member  States  are  in  competition  with  each  other  in 
recruiting suitable labour from third countries. The Commission believes that due to the effect 
of  demographic  decline  and  ageing,  recruitment  of  third  country  national  workers  and 
immigration for economic reasons into the EU is likely to continue and increase. On the other 
side,  third  countries  are  repeatedly  asking  for  more  legal  migration  channels.  Nevertheless, 
the  proposed  EU  Directive  on  this  issue14  tabled  in  2001  received  no  support  from  the 
Council. Therefore, some basic questions need to be addressed in order to understand whether 
or not the admission of economic migrants should be regulated at EU level. Issues which need 
clarification  include  the  degree  of  harmonisation  to  aim  at;  the  scope  of  the  proposal  and 
whether or not the principle of Community preference for the domestic labour market should 
be maintained. As far as the Commission is concerned, the answers to these questions have to 
built  upon  two  basic  principles:  on  the  one  hand,  the  draft  Constitutional  Treaty  which 
confirms  European  competence  in  migration  policy,  but  leaves  the  determination  of  the 
number of migrants to be admitted to the Member States and, on the other hand, the necessity 

13 
14 

COM(2003) 727 final of 25.11.2003.  
Ibid. 

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that  any  measures  taken  in  this  field  has  to  be  based  on  one  exclusive  criteria  which  is  the 
added value of taking the measure at EU level. 

The Commission is planning to launch, later this year, a comprehensive consultation process 
on this subject which will help to answer these questions. As a first step, a green paper will be 
presented later this year which will review the choices made by the Commission in the draft 
Directive  and  will  re-examine  the  difficulties  raised  in  Council.  A  public  hearing  will  be 
organised  at  the  end  of  2004  to  bring  together  all  relevant  stakeholders:  institutional, 
economic and non-governmental organisations.  

The  study  has  shown  that  wide-scale  regularisation  measures  which  have  been  taken  by 
some Member States have allowed them, in one go, to deal with the presence of significant 
numbers of illegal migrants in their territory. Such programmes are not, however, seen to have 
a  long-term  effect  in  reducing  the  levels  of  illegal  migrants,  instead  they  may  serve  as  an 
additional  pull  factor  for  illegal  migrants,  as  the  Belgian  case  study  seems  to  show. 
Furthermore, such wide-scale measures also have implications for other Member States of the 
EU due to the abolition of internal border controls. However, it is also unacceptable for States 
to allow durable illegal residence by significant numbers of third country nationals. 

The Commission could propose the development of a common approach to regularisation so 
that  wide-scale  regularisation  measures  can  be  avoided  or  limited  to  very  exceptional 
situations. The study gives weight to the view that regularisations should not be considered as 
a way of managing migration flows as in reality they often appear as a negative consequence 
of  migration  policy  in  other  areas.  Nevertheless,  there  is  a  need  to  further  analyse 
regularisation  procedures  with  a  view  to  identifying  and  comparing  practices.  Taking  into 
account  the  potential  consequences  of  regularisations  on  other  Member  States,  should  a 
Member State decide to carry out a wide-scale regularisation programme, the others should be 
informed  well  in  advance.  The  Member  States  should  also  be  consulted  on  the  scale  of  the 
measure envisaged, the number of persons likely to be concerned, the criteria to be used and 
the possible impact on other Member States. From this mutual information and transparency, 
common criteria could be drawn up. This exchange could take place within the framework of 
the Committee on Immigration and Asylum. 

The  study  has  confirmed  that  paradoxically  at  a  time  when  the  perspective  of  shortages  in 
certain sectors of the labour market in Member States reveals the need for a new immigration 
policy,  the  unemployment  rate  of  third  country  nationals  already  residing  in  the  Member 
States remains significantly high. Strengthening the integration of third country nationals 
legally residing in the Member States is an essential objective for EU immigration policy. It is 
also  one  of  the  demands  third  countries  make  during  discussions  on  migration  issues.  The 
majority  of  these  countries  have  undertaken  to  defend  the  interests  of  their  own  nationals, 
even if they live overseas. Legal immigration channels must be complemented by measures to 
promote integration. The first annual report on immigration and integration, to be presented to 
the European Council in June 2004, will describe recent developments in this field. 

As  regards  integration  into  the  labour  market,  the  European  Employment  Strategy 
provides  the  political  framework  for  the  reforms  to  be  carried  out  at  the  national  level.  In 
particular,  the  2003  guidelines  for  employment  invite  the  Member  States  to  promote  the 
integration  of  persons  disadvantaged  in  the  labour  market  and  to  fight  against  any 
discrimination  of  which  they  may  be  subject.  These  new  guidelines  fix  in  particular  the 
objective  of  reducing  the  unemployment  gap  between  nationals  of  third  countries  and  EU 
nationals.  In  2002  the  employment  rate  for  non-EU  nationals  in  EU-15  was  significantly 

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lower  than  that  for  EU  nationals  (52.7%  as  against  64.4%).  The  report  on  Employment  in 
Europe  2003  confirms  that  such  divergences  remain  important,  although  they  vary  greatly 
between Member States. 

Promoting sustainable integration in the labour market and greater mobility in the EU labour 
market has been a constant concern within the Employment Strategy in order to sustain labour 
supply,  maximise  adaptability  and  respond  to  sectoral  and  regional  shortages.  Migrant 
workers  could  contribute  to  this  objective  so  it  is  desirable  to  make  further  progress  in 
facilitating  the  mobility  of  third  country  nationals  within  the  European  Union.  The 
Directive on the status of long-term residents, which was adopted on the 25 November 2003, 
introduced the principle of mobility for  those  who  had been resident  in a Member State  for 
more than five years. Mobility has also been facilitated through the adoption of the extension 
of regulation 1408/71 to third country nationals. A degree of mobility is also foreseen in the 
Commission’s  proposal  for  the  admission  of  foreign  students  which  should  shortly  be 
adopted15  and  for  the  admission  of  researchers16.  This  principle  could  be  extended  to  other 
categories of third country nationals. Furthermore, the proposal for a Directive on services in 
the internal market should facilitate the posting of workers who are third country nationals for 
the provision of cross-border services. 

The recognition of professional qualifications of third country nationals is another subject 
which could be tackled. One possibility would be to look for appropriate means to extend to 
all  third  country  nationals  the  benefits  of  the  directives  on  the  professional  recognition  of 
qualifications  (this  concerns  in  particular  the  professional  recognition  of  qualifications 
obtained by third-country nationals in other Member States or of third country qualifications 
already recognised by another Member State). In addition to the above mentioned recognition 
of  qualification,  teaching  routes  could  be  provided  which  would  allow  them  to  obtain 
equivalent levels of qualification without having to start their studies over again. 

3.2.2. On illegal migration 

The study has shown that some level of illegal migration is likely to take place whatever legal 
channels are put in place, fighting illegal migration, therefore, must remain an essential part of 
migration management. 

The fight against illegal migration starts with preventive measures and the suppression of its 
main incentives. Undeclared  work  in several countries or regions is a significant pull  factor 
for illegal migration. Tackling the unregulated labour market is therefore a common objective 
which touches not only the area of immigration but also that of employment. Those who work 
in  the  hidden  economy  are  often  subject  to  exploitation,  and  denied  the  rights  of  other 
workers. The problem of undeclared work has been addressed in the European Employment 
Strategy  since  2001.  In  2003  the  Commission  underlined  the  need  for  policy  aiming  at 
transforming  undeclared  work  into  regular  employment  and  called  for  the  setting  of 
targets.  This issue is one of the  ten priorities  in the  2003 Employment Guidelines17.  On  the 
basis of the 2003 National Action Plans (NAPs), an evaluation of national actions aiming at 
transforming  undeclared  work  into  regular  employment  was  given  in  the  draft  Joint 

15 
16 
17 

COM(2002) 548 final of 7.10.2002. 
COM(2004) 178 final of 16.3.2004. 
Council  Decision  of  22  July  2003  on  guidelines  for  the  employment  policies  of  the  Member  States, 
OJ L 197/13 of 5.8.2003. 

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Employment  Report,  which  was  presented  by  the  European  Commission  in  January  200418. 
Several Member States mentioned in their NAPs special measures directed at foreign workers 
or illegal immigrants. Further monitoring of action by the Member States will be undertaken 
by the Commission in the context of the European Employment Strategy. 

The  common  fight  against  illegal  migration  and  the  development  of  a  Community  return 
policy  are  priorities  amongst  the  development  of  other  policy  instruments  necessary  to 
alleviate  migratory  pressure.  Within  the  context  of  a  managed  immigration  policy  the  only 
coherent approach to dealing with illegal residents is to ensure that they return to their country 
of  origin.  As  one  element  of  the  Community  return  policy  the  Commission  proposes  to 
establish  preparatory  actions  for  a  financial  instrument  for  return  management  for  the  years 
2005 and 2006. These actions will cover voluntary return, forced return and support for the 
return  of  irregular  migrants  in  transit  countries.  They  will  aim,  through  proper  coordination 
with  the  relevant  existing  instruments,  at  sustainable  return  and  durable  reintegration  in  the 
country of origin or former residence. The focus will be on the return of the designated target 
group  in  its  various  dimensions,  pre-return  assistance,  travel  arrangements,  transit  and 
reception organisation, and on proper coordination with relevant existing instruments for post-
return  and  reintegration  assistance.  In  addition,  the  Commission  will  present  in  the  first 
semester of 2004 a proposal for an EU Directive on minimum standards for return procedures 
and mutual recognition of return decisions.  

3.2.3. On co-operation with third countries 

This study has confirmed that stepping up cooperation with countries of origin or transit 
is  an  effective  means  of  reducing  illegal  migration  flows.  However,  our  relations  with  third 
countries cannot be based on unilateralism. Experience shows that real partnership is the key 
element if such co-operation is to be successful. The EU needs to have a clear understanding 
of  the  situation  in  the  country  and  the  problems  it  faces  so  as  to  promote  an  open  dialogue 
which takes into account the interests and expectations of both sides. Many countries of origin 
and transit are now ready to take responsibility and to make greater efforts to prevent illegal 
immigration. However this needs to be done within an overall approach to migration and, in 
certain cases, require incentives and financial and technical support from the EU. 

As a first step, it is important for the Union to put together all the information available on 
legal migration channels for third country nationals. This pooling of information should first 
concern  the  number  of  migrants  admitted  by  nationality  in  order  to  present  to  each  third 
country a clear view of the migration pattern of their nationals for the whole of the EU. This 
could be done in the framework of the Committee on Immigration and Asylum which could 
make  an  inventory  of  all  bilateral  agreements  signed  by  individual  Member  States  with  a 
specific third country, the number of migrants concerned by these agreements and the number 
of migrants admitted outside of these agreements and the reasons for admission. It could be 
used  in  the  long  term  to  develop  greater  synergy  between  Member  States  concerning  the 
numbers  of  labour  migrants  admitted  to  the  Union.  With  this  overall  presentation,  a  clear 
answer to the third countries’ requirements could be provide in the framework of the political 
dialogue established on migration issues or during negotiations on readmission agreements.  

Moreover, the idea of recruiting workers and developing training programmes in countries of 
origin  in  skills  which  are  needed  by  the  EU  could  be  explored.  Such  programmes  could 

18 

COM(2004) 24 final/2 of 27.1.2004. 

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incorporate social, cultural and language training needed for the stay of migrants in Europe. 
Certain Member States have already put into place this type of programme and these will be 
studied  more  closely.  Pilot  projects  could  be  financed  under  the  technical  and  financial 
assistance programme for third countries (ENEAS).  

The  study  has  shown  that,  as  regards  several  third  countries,  visa  policy  measures  have  a 
preventive  impact  on  illegal  migration  flows.  It  is  especially  important  for  categories  of 
persons who are potential overstayers. However, there are categories of persons who do not 
represent any risk from the point of view of illegal migration  and who have no  intention to 
abuse  short  stay  possibilities.  For  these  categories,  to  be  defined  country  by  country,  the 
possibility  of  considering  some  kind  of  facilitation  in  the  delivering  of  visas  could  be 
explored, taking into account the efforts of the country concerned to cooperate with the EU in 
the  fight  against  illegal  migration.  The  Commission  would  therefore  propose  to  explore  the 
question of negotiating visa facilitation for certain categories of persons (such as, permanent 
representatives  from third countries involved in structural  dialogue; sportsmen  etc.). A pilot 
exercise will be the adoption of a mandate for the negotiation of visa facilitation with Russia.  

CONCLUSION 

This study has been carried out in a very short period and, while several aspects deserve to be 
deepened, a number of clear messages can be drawn from it. There is a link between legal and 
illegal migration but the relationship is complex and certainly not a direct one since a variety 
of  different  factors  has  to  be  taken  into  consideration.  No  measure  taken  on  its  own  can  be 
seen  as  having  a  decisive  impact.  This  does  not,  however,  prevent  particular  actions  from 
having specific impacts. Quotas for instance can be seen as having an impact but they are not 
acceptable to all Member states. The pooling of offers of legal immigration to third countries 
could,  in  this  context,  be  an  interesting  possibility  to  develop.  In  this  perspective,  the 
Commission  has  identified  a  number  of  measures  which  could  be  further  explored.  In  any 
case, the implementation of such measures must be based on the strengthening of information 
exchange, consultation and co-operation between the Member states of the European Union. 

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