Irregularly Staying Third-Country Nationals and Their Right to Regularise under EU Law

Abstract Is there an obligation under EU law to regularise irregularly staying third-country nationals? In short, Member States have to decide between the return procedure in general or regularisation according to the Return Directive. Member States may grant a right to stay, i.e. regularisation, at each stage of the return process. If return is not possible due to various reasons, Member States may regularise irregularly staying third-country nationals. The CJEU made it clear in its case law that the Return Directive leaves the Member States the possibility to regularise irregularly staying third-country nationals. However, it is disputed according to the relevant and recent CJEU case law (2014–2025) and different scholarly opinions whether Member States are obliged to grant irregularly staying third-country nationals a right to stay under the Return Directive. Despite the case law of the CJEU the author of this contribution argues that Article 6(4) Return Directive stipulates such an obligation to regularise in three cases (real risk of refoulement, permanent non-returnability and the best interest of the child). In all three cases the discretion afforded to the Member States under the first sentence of Article 6(4) Return Directive is removed entirely as the option to return is not enforceable. This contribution deals with the question of how this right to regularisation derived from Article 6(4) Return Directive relates to fundamental rights. The context of this contribution is the relationship between EU law and ECHR rights more generally as well as between EU law and national competences.