The situation of irregularised third-country nationals (TCNs), whose expulsion is not feasible or lawful presents a pressing challenge for the EU’s approach to the common migration policy. While these individuals may be known to national authorities, practical, humanitarian, or legal considerations can render their removal (temporarily or permanently) impossible, leaving them individuals in a precarious state of administrative ‘limbo’. This article examines the differing policy responses of selected Member States and scrutinises the accessibility of socio-economic rights of irregularised persons who are ‘non-removable’. This comparative analysis uses desk research, including review of primary and secondary sources, and national reports from seven EU Member States: Belgium, Germany, Greece, Italy, Slovenia, Spain, and Sweden. Beyond academic literature, national researchers consulted publicly available policy documents and conducted interviews with diverse stakeholders in migration management. The analysis considered key policy and legal developments up to July 2024. This comparative exercise revealed a significant hyper-heterogeneity of approaches and regulatory fragmentation across Member States. Diverse grounds justify the non-issuing of return decisions or the suspension of removal orders, with considerable variations in granting documentation, registration, and access to residency. For those in limbo, accessing essential socio-economic rights – like healthcare, housing or social assistance – can be extremely difficult and widely restricted. Due to the inconsistent implementation and enforcement of the rules, these barriers can exacerbate the already precarious situation of individuals and their families. Simultaneously, the overarching aim of accelerating deportations means that legal obligations to safeguard basic human and procedural rights have been framed as ‘obstacles’ to return, despite existing, binding rules compelling authorities to suspend expulsions in compliance with applicable law. The examination finds that the prevailing policy notion of ‘effectiveness’, which necessitates a ‘balancing act’ and prioritises expulsions, is incompatible with international, regional, and EU human rights standards. Policy responses focused on halting expulsions and facilitating transition to regularised residency status often constitute not only more humane but also more ‘effective’ alternatives in practice. Ultimately, the Article recommends a ‘rights-first’ approach unequivocally placing the human dignity of irregularised TCNs above migration management policy priorities.
Carrera et al. (Tue,) studied this question.