Irregular immigrants
Irregular immigrants
Irregular immigrants; who enter a country without permission or legal justification are considered irregular in that country. Irregular presence in the country; It can occur in many ways due to a change in personal situation, such as secret entry into this country or avoidance of a mandatory address here, or the inability to qualify for renewal of a previously legal residence permit. The absence of legal status often also affects the possibility of enjoying other procedural and fundamental rights. Irregular immigrants
Irregular immigrants; Under EU law, according to the Returns Directive (2008/115/EC; see Annex 1 to see EU Member States party to the Regulation), irregular third-country nationals in the country can no longer be left in limbo. EU member states participating in the arrangement are required to either regulate the presence of the persons concerned or decide on their extradition.
All persons who are not legally allowed to stay in the country fall within the scope of this regulation. The article obliges EU member states to issue “extradition orders” for these persons. However, 6 (4). The article specifies the terms that remove states from this obligation. Irregular immigrants
The right to family and private life guaranteed under Article 7 of the EU Charter of Fundamental Rights and Article 8 of the ECHR (see Chapter 5 on family life), inter alia, for humanitarian or other reasons, is the right of such persons to stay in the country. requires regulating their stay.Irregular immigrants
Ghevondyan case
Example: In the case of M. Ghevondyan of 4 June 2012, the French Conseild’Etat decided that Article 6 of the Extradition Regulation does not oblige the competent authorities of the member states to issue a systematic extradition order against irregular third-country nationals. 6 (4). Article 6 (1). It introduces some exceptions and limitations to the article. Therefore, return decisions may not be made automatically. The administration is obliged to take into account the personal and family situation of the foreigner and to evaluate the situations that may prevent the deportation decision. These include taking into account the interests of the children, the situation of the family and the health of the foreigner, as specified in Article 5 of the regulation. Therefore, if this justification is put forward by the foreigner, the courts should review the legality of the decision, taking into account the consequences on the foreigner’s personal situation. Irregular immigrants
Persons requesting permission to stay on the territory of the country, as well as those seeking asylum, may be allowed to stay there until that request is concluded (Article 6 (5)). However, this is not mandatory. The statute does not refer to the status of such persons. Irregular immigrants
Paragraph 12 of the Return Directive sets out the common situation of persons who cannot be removed from the country despite their absence. It also states that states must confirm their status in writing, but this requirement is not addressed in the key sections of the regulation. The worst example of this situation is people who should be released but are still not allowed to stay in the country because their maximum probation period has expired (see Chapter 6 on detention).
Kadzoev case
Example: In the Kadzoev case, the detention of a Chechen person who was denied asylum in Bulgaria but could not be removed from the country was terminated by the CJEU’s decision stating that the maximum period of detention under the current law cannot be exceeded. EU law. After that, although the applicant could not be deported from Bulgaria, he remained without status, undocumented and in misery due to Bulgarian law, which did not grant him any status.
Under the ECHR, the Convention does not recognize the right to obtain a specific status or relevant documents in the host country; however, in some cases a person’s refusal may violate the ECHR if it has been made on discriminatory grounds.
Kiyutin v. Russia case
Example: In Kiyutin v. Russia, a male Uzbek national who married a Russian and has a child applied for a residence permit from the Russian authorities. Your request was denied because you are HIV positive. The ECtHR highlighted the extraordinary vulnerability of people infected with HIV and recognized that the disease could imply a form of disability. The Court found that the general provision of national law requiring the orderly deportation of HIV-positive non-nationals left no room for an individualized assessment based on the particular circumstances of each case and could not be objectively justified.
In that case, it was decided that the applicant was a victim of discrimination on account of his health condition and that there had been a violation of Article 14 taken in conjunction with Article 8 of the ECHR.
In accordance with the ESC, the scope of the personal application is, in principle, limited to nationals of other party countries who legally reside or regularly work on the territory of the country.
However, the ECtHR has stated that certain rights apply to everyone on the territory of the country, including irregular migrants, due to their fundamental characteristics and ties to human dignity.
These rights are the right to medical aid, the right to housing and the right to education.
