This paper delves into the intricate landscape of Austrian policy developments and legal frameworks dealing with migrant irregularity over the past 15 years, exploring their impact on legally constructed pathways into and out of irregularity for various migrant groups. After providing contextual insights through an overview of Austria's key policy priorities regarding irregularized migration, we focus on the dynamic interplay between irregularity and labour market policies. Like other EU-member states, Austria is experiencing a labour shortage beyond highly-skilled workers, reflected in economically relevant low-skilled sectors, such as agricultural, tourism and commerce. While the few available regular immigration channels are mainly accessible to highly-skilled and seasonal workers, access to the labour market for asylum seekers, people with humanitarian residence status and low-skilled migrants is a political, economic and societal area of tension that is reflected in restrictive migration policies and diverse barriers to labour market access for these groups. At the same time, this system hardly allows for a change from one (precarious) residence status to another, track change or access to regularization options. Under these framework conditions, not only do different groups of migrants (e.g. asylum seekers, migrants with tolerated status or humanitarian residence permits) risk losing their residence right by entering into an irregular employment situation. Additionally, a pool of workers is also maintained for the irregular labour market, which is often characterized by dependence on employers, as well as exploitative and even dangerous working conditions. By exploring the tensions between labour shortages, residence permits, and regularization options for (irregular(ised)) migrants in Austria, we explore how they shape the legal, political and practical frameworks that condition certain pathways into and out of irregularity and hence form the basis for irregularized migrants' experiences and opportunities on the ground.

Although from a legal perspective, migrant irregularity could seem clearcut, research has demonstrated the ways in which migrants fall into and out of irregularity over the course of their sojourn, or may find themselves in “semi-legal” (Kubal, 2013) situations. The following paper will analyse and categorise the ways in which (irregular) migration policies contribute to the “blurred realities” (Kraler & Ahrens 2023) of migrant irregularity, linking irregular migration policies with the policy mechanisms by which they can lose status. In particular, experiences of “befallen irregularity” (González Enríquez 2014; Vickstrom 2014) will be highlighted, especially given the ways in which the COVID-19 pandemic has compounded the issue for countries already experiencing permit backlogs. Other policy factors that may lead to migrant irregularity include restrictive asylum, entry, naturalisation and residence policies, as well as work visa restrictions. At the same time, some migrants may choose to remain in irregularity despite regularisation mechanisms available to them, for a variety of personal, practical, and structural reasons. Drawing on research conducted under the “Measuring Irregular Migration and Related Policies (MIrreM)” Horizon Europe project, the paper makes use of data collected from 20 countries across Europe, North Africa and North America to tease out the wide variety and distinct ways in which migration policies impact on migrant irregularity in its various forms.

In this paper, we propose a conceptual approach to exploring access to social rights and services among irregularized migrants in Austria. Relational modalities extrapolate “differing normative concepts of what a state should be and how it should act and embody past experiences in structural environments that translate into contingent expectations for the future” (Thelen et al. 2017: 7). A relational approach, in other words, teases out contestations between theory and practice. The result is a palimpsest illustrating rights as they ought to be, versus (in)access to rights as a lived reality. Through the concept of relational rights, in this empirically informed piece we seek to understand various modes of engagement at different scales, including the international, national and local level. The relational understanding of rights that we conceptualise cannot be delimited by the register of law nor can it be decoupled from power relations including gendered and racial dynamics. Moreover, the particular group of denizens we study with are often excluded from rights on paper as well as in practice. Everyday bordering practices shape exclusionary measures targeting irregularised migrants (post-entry), i.e. making it difficult for people to access rights and services. Strict policies of internal migration control significantly infringe the rights of migrants without regular status, and expose them to an array of vulnerabilities such as being victims of crime and exploitation. Paradoxically, labour market dynamics and the people’s presence in local communities require some form of inclusion, at least in practice, if not on paper. Therefore, we carefully consider irregularized migrants’ access to rights from a relational perspective. The paper starts by questioning some of the normative categories and assumptions that impact the rights of irregularised migrants e.g. citizenship, state, borders, etc., and then unpacks the relational workings of rights. We argue that Firewalls are needed to foster relational rights.

In the 1990s, return emerged as the preferred ‘durable solution’ for refugees. Return in this context was construed as voluntary, when refugees no longer were in need of international protection. Its voluntary nature was soon put into question by several instances of large-scale returns in forced or insecure situations, but also in relation to temporarily admitted refugees and other targets of ‘coerced return’. In Europe, refugee returns were largely limited to Bosnians or Kosovars under temporary protection. In the new millennium, the more significant group of persons with an obligation to leave was failed asylum seekers and other migrants without an authorization to stay. In practice, however, only a small share amongst those obliged to leave returned, prompting states to adopt a variety of policies to address the continuing presence of non-removed migrants, ranging from informal toleration to regularisation.

While there has been a long-standing debate on the regularisation of irregular migrants, there has been relatively little systematic exploration of the interlinkages of regularisation and asylum policies, including the use of regularisation to address the continuing presence of persons not deemed eligible for international protection. This paper seeks to address this gap and explores the regularisation – asylum nexus both empirically and conceptually. We examine to what extent regularisation policies explicitly target failed and (long-term) asylum seekers, and conversely, to what extent these groups had access to other regularisation measures. We also address other responses such as toleration. Conceptually, we aim to examine the role of regularisation as an element of both migration management and protection policies, and thus as an intrinsic element of asylum and refugee policies.

We posit that regularisation may be linked to asylum in three ways:

(1) Regularisation policies and related policies of ‘tolerating’ the continued presence of migrants with an obligation to leave often target ‘failed’ asylum seekers. While not necessarily about protection, regularisation targets individuals with an institutional history within the asylum system.

(2) Regularisation and related policies, however, often are about the protection of fundamental rights and complement policies on international protection, or act as a discretionary substitute in contexts where the criteria for international protection are more narrowly defined and no other instruments exist to address protection needs.

(3) In the context of increasing restrictions and changing practices of asylum regularisation, reflected, amongst others, by decreasing recognition rates even for citizens from countries with acute conflicts or an increase of withdrawals of protection statuses, regularisation is a response to the consequences of policy shifts, highlighting the contradictions of policy driven restrictions.

We will examine these claims empirically drawing on data collected in the course of a recent comparative study of policy responses to irregular migration covering 20 countries in Europe, North Africa and North America as well as a related ongoing comparative study on regularisation, both implemented in the framework of the MIrreM (Measuring Irregular Migration and Related Policies) project. The data has been collected through policy and legal analysis, focus group discussions, and interviews.