EU Safeguards for irregular migrants and the role of national institutions

Although irregular migrants fall outside a comprehensive EU rights framework, they are not entirely unprotected under Union law. In this blog, we delve into the real impact of these safeguards moving beyond legal texts to examine how national institutions mediate their implementation.

Even though irregular migrants’ protection remains largely outside the scope of Union law, a range of safeguards emerges from different legal instruments, most notably the Return Directive, the Employers Sanctions Directive and the Anti Trafficking Directive. These safeguards do not form a coherent catalogue of rights, but they nonetheless constrain state action and create legally enforceable entitlements.

The question, therefore, is not whether EU law protects irregular migrants, but how this protection operates in practice. Drawing on a comparative analysis of six countries: Austria, Croatia, Italy, Poland, Sweden and the United Kingdom, we argue in our new study that the effectiveness of EU safeguards depends both on their formal transposition and on the institutional environments within which they are implemented. EU law sets the framework, but national institutions determine how that framework functions in practice.

EU safeguards without a comprehensive rights framework: A question of practical operation rather than formal compliance

The protection of irregular migrants in EU law is fragmented. The Return Directive requires Member States to ensure access to emergency healthcare, education for minors and the maintenance of family unity pending removal. The Employers Sanctions Directive provides for the recovery of unpaid wages. The Anti Trafficking Directive establishes assistance and, under certain conditions, residence protection for victims of exploitation.

These provisions were not designed to form a general system of protection. They pursue different objectives, ranging from migration control to labour market regulation and criminal justice. However, taken together, they create a set of minimum guarantees that limit the exercise of state power over irregular migrants. In this sense, EU law operates through a dispersed, but nonetheless meaningful, protective framework.

Across the examined countries, these safeguards are generally transposed into national law. Formal compliance is rarely the central issue. The more difficult question concerns their practical operation. Access to healthcare, schooling or wage recovery may exist in law, but its realisation depends on how national systems are organised and how different administrative actors interact.

Why protection differs across countries

Our comparative analysis shows that institutional design affects the implementation of EU safeguards in at least three distinct ways.

First, the structure of welfare systems matters. In systems with broad, universal access to public services, irregular migrants may in principle benefit from inclusion within existing structures. However, even in such systems, access may depend in practice on administrative identification, funding arrangements or the allocation of responsibility between national and regional authorities. In more status-based systems, access is more directly tied to legal categories, which increases the role of administrative discretion and may limit the practical availability of rights that are formally guaranteed. As a result, the safeguards contained in EU return law operate differently depending on how access to healthcare and education is organised within national welfare systems.

Second, the organisation of labour law enforcement is decisive for the effectiveness of the right to back pay. Where labour inspection and enforcement mechanisms operate independently from migration control, irregular migrants may be more willing to claim unpaid wages. By contrast, where labour enforcement is closely linked to immigration authorities, attempts to enforce labour rights may simultaneously expose individuals to return procedures. In such contexts, the right to recover unpaid wages exists in law, but remains difficult to exercise in practice. The effectiveness of EU labour law safeguards therefore depends on the degree of separation between rights enforcement and migration control.

Third, the role of courts and the integration of human rights standards influence how safeguards are applied. In legal systems where administrative authorities and courts engage in proportionality review, including through reliance on the European Convention on Human Rights, safeguards such as the protection of family life may be more consistently taken into account in return decisions. In systems where protection depends more heavily on administrative discretion, the application of such safeguards may be less predictable. Differences in legal tradition and judicial practice thus shape the extent to which EU-derived rights are translated into effective protection.

Implications for EU migration law: a closer attention to national institutional settings

These findings point to a broader conclusion. The effectiveness of EU law in this area cannot be assessed solely by examining the content of directives or the formal transposition of their provisions. It depends equally on the institutional settings within which these provisions are implemented. Welfare systems, labour enforcement structures and judicial practices are not merely background conditions. They shape the accessibility, visibility and enforceability of rights.

This has implications for the future development of EU migration law. Ongoing discussions on the reform of return procedures and the further development of the anti-trafficking framework raise the question whether EU law will strengthen its protective dimension or adapt it in favour of enforcement priorities. If enforcement mechanisms are expanded without corresponding attention to institutional safeguards, the effectiveness of existing protections may be further weakened.

At the same time, EU law increasingly defines the boundaries within which Member States exercise their powers in this field. Through the combination of legislative safeguards and judicial interpretation, it contributes to the constitutional framing of migration governance. The central challenge in the future will be to maintain existing safeguards and to ensure that they remain effective within institutional settings increasingly shaped by enforcement priorities.