Third-country nationals who no longer or who have never fulfilled the conditions of stay are denied a residence permit, while those whose return decision has not been or cannot be enforced may face long-term situations of illegal stay and legal uncertainty, including often deplorable living conditions. The actions of national governments and local authorities (municipalities, regions) may be contradictory. Central authorities must fulfill national migration policy objectives to prevent illegal stay and enforce return decisions, while local authorities must address the practical issues associated with the prolonged stay of irregularly staying third-country nationals, including access to basic services.
To reduce situations of legal uncertainty for third-country nationals, the Return Directive (2008/115/EC) obliges Member States to issue a return decision to irregularly staying third-country nationals on their territory. The Directive also sets out minimum basic rights and procedural guarantees where there is a postponement of return, exercised in conjunction with other relevant legal instruments. While the Return Directive (2008/115/EC) foresees some basic rights for ‘non-removable’ returnees, there is no further harmonisation at European Union (EU) level, with the approach instead largely determined by domestic law and practice.
This study aims to provide an overview of existing policies and practices in the EU Member States and Norway towards third-country nationals in a prolonged situation of irregular stay. The overall focus is on those third-country nationals subject to a return decision but whose return was not enforced or was postponed, and those without a return decision who are unknown to the authorities.
The study explores the responses and approaches by central and local authorities to end those situations and mitigate the social consequences for the third-country nationals affected. It examines access by these groups to mainstream services.
Responses to long term irregularly staying migrants: practices and challenges in the EU and Norway: EMN Flash