Governments are often under pressure to place resources in the most visible areas of illegal immigration policy, not least border management, bolstering immigration control in airports and augmenting border patrols. However, they must also address the pool of migrants who have circumvented migration policies, both those who entered illegally and those who arrived legitimately but overstayed the terms of entry (the majority of the unauthorized in Europe).
On both sides of the Atlantic, the preferred policy goal for dealing with this population is identification and return (or deportation). A number of countries in Europe have articulated a zero tolerance approach, in some cases criminalizing unauthorized residence. Achieving 100 percent return, however, is both expensive and unfeasible. Governments need to begin to make strategic choices about how they enforce immigration laws, focusing on cost, likely harm and feasibility, and about which groups to pursue and who to protect.
The recently announced Deferred Action for Childhood Arrivals (DACA) policy in the United States is one example of this type of policy-making. Under this initiative, unauthorized immigrants who arrived as children may be granted two-year relief from deportation, thus narrowing the pool of unauthorized immigrants subject to scrutiny from immigration enforcement agencies, by eliminating those who had little or no choice in their migration journey.
There are two options facing governments in the implementation of return policy: removing the greatest number of unauthorized immigrants or removing those who pose the greatest threat. Many governments, including Canada, the Netherlands and the United Kingdom, use the latter approach, focusing on organized criminals and gang activity as a priority. This is a more targeted approach, but also resource-intensive in terms of intelligence and careful police work.
Some governments opt for a universal approach that prioritizes numbers, often pursuing a predefined quota. The drawback to this is the uncertainty with respect to cost allocation (closely linked to how many individuals are located) and the fact that enforcement officers frequently target those posing the least threat as they present the low-hanging fruit. For example, in 2010, 30 percent of effected returns from France were Romanian nationals, and nearly a quarter of the remaining returns were made up of just three additional nationalities, Algerian, Tunisian, and Moroccan.
There are additional policy challenges. First, locating and identifying unauthorized individuals for return is challenging, particularly if the country of origin is uncooperative. Second, processing returns is expensive. In 2011, the European Union conducted 39 joint return operations, returning 2,038 individuals at a cost of €7.84 million - or €3,845 per person (much lower than national costs). This is just a fraction of those returned from Europe each year.
It is in this context that regularization has emerged as a "policy valve" to complement incomplete enforcement strategies. In Europe, many governments are loath to employ regularization policies: they are unpopular among publics and are perceived as an acknowledgement of policy failure. Regardless, a number of countries, from Spain to Poland, have effected regularizations in recent years. The central enforcement goal of regularization is a pragmatic one: to reduce unauthorized residence and labor, though not the size of the immigrant population itself. As such, focusing regularization on those who have deeper ties to the country is one way of making the policy more palatable and effective.
Given the deep sensitivities and heated political debate that surround immigration enforcement, governments tend to articulate a high standard for successful intervention, or rather, a low tolerance for policy failure. However, applying laws mechanistically, without consideration for context or nuance, is not the answer any more than making rules that are unenforceable, applied inconsistently, or that the government does not intend to enforce. Doing so breeds cynicism among publics, invites further illegal behavior, and, over time destroys a government's credibility.
European governments should consider adopting more nuanced, contextualized policy, incorporating the full range of policy tools at their disposal. In this respect, the US DACA policy holds a number of policy lessons for European governments still focused on a one-size-fits-all enforcement approach for unauthorized immigration.
This article draws from a memo co-authored with Will Somerville, Senior Policy Analyst at the Migration Policy Institute, for the most recent meeting of MPI's Transatlantic Council on Migration, entitled "Trade-offs in immigration enforcement".
Elizabeth Collett is the Director of Migration Policy Institute Europe, a non-profit, independent research institute that aims to provide a better understanding of migration in Europe. She holds a master's degree in Foreign Service from Georgetown University, and a bachelor's degree in law from Oxford University.
This article is published as part of the "Border Policies: Lessons for Improvement" theme week.