This contribution analyses residence rights of migrants and irregular residence from a conceptual viewpoint. In the pertinent legal literature, it is argued that every Member State still decides autonomously if the residence of a migrant is permitted; in other words, if he or she is found to be irregular. I question this view, since it ignores the multi-layered character of decision-making in the EU. To do so, I differentiate between migrants who have privileged residence rights (e.g. Union citizens) and those who have not. In depicting the legal situation of migrants with privileged residence rights, I am able to identify three different levels among which the legislative decision-making power in the EU is distributed (international, EU and national level). Consequently, I challenge the ‘statist assumption’ in showing that legislative decisions with regard to residence rights of migrants have been partly taken out of the exclusive domain of Member States in the EU.