The European Approach to Irregular Migration in Pandemic Times: The More Things Change, the More they Stay the Same?

Summary

ABSTRACT

In this contribution, I examine the European Union's (EU, the Union) response to irregular migration and irregular migrants’ rights during the ongoing pandemic. By analysing efforts to prevent unwanted arrivals, entrench pre-removal detention and increase expulsion, I highlight a consistency in the EU treatment of irregular migrants over the past decade and note an intensification of the rights-restrictive and control-expansive thrust of EU policy on irregular migration since the 2015 migration and refugee ‘crisis’. I show how this trend is reflected in the New Pact on Migration and Asylum and is increasingly being facilitated and endorsed by the European Court of Human Rights (ECtHR) and the Court of Justice of the EU (CJEU). At the same time, however, I argue that there is scope for a more rights-respecting European approach to irregular migrants, one of the most vulnerable categories of migrant present in Europe today. In particular, I argue that serious consideration needs to be given to regularisation, the conferral of a right to remain on irregular migrants, as an alternative to, or in conjunction with, the current focus on expulsion. I suggest that the pause for thought provided by the pandemic may allow for meaningful discussion of ambitious measures, such as an EU regularisation mechanism, that would previously have been dismissed out of hand. I also show how the pandemic itself, and the need for an effective response to it, provides compelling arguments for regularisation.

INTRODUCTION

The COVID-19 pandemic has impacted the lives of people in almost every country around the world, and nearly two years after the emergence of the disease it continues to play havoc with the lives and livelihoods of individuals and the economies of nations. The large and growing body of academic and expert legal commentary and literature on the pandemic has included analysis of travel restrictions and the implications of the pandemic for the protection of migrants’ rights. Migrants, especially those in an irregular situation, are particularly vulnerable to the ramifications of the pandemic.