Crimmigration Law In The European Union

In the European Union, the Return Directive aims at establishing common standards and procedures to be applied in Member States for returning illegally third-country nationals. An entry ban prohibits entry into and stay on the territory of all EU Member States (except the United Kingdom and Ireland) and Switzerland, Norway, Iceland, and Liechtenstein. This instrument is intended to have preventive effects and to foster the credibility of EU return policy. The clear message is that those who disregard migration rules in the Member States will not be allowed to re-enter any Member State for a specified period. Furthermore, the entry ban is an instrument which can be used to prevent (or to counter) terrorism. The use of criminal sanctions in the area of immigration opens the largely political debate on the legitimacy of the process of criminalizing foreigners. The merger between criminal law and immigration law has been classified as "crimmigration law." The entry ban falls within the scope of crimmigration law. The relation between immigration law and criminal law, and the compatibility of national penal measures imposed as a punishment for illegal migration, is developed in the case law of the Court of Justice of the European Union. There is a well-established jurisprudence on the interplay between domestic penal sanctions and the effectiveness of return policy. The effectiveness of the return process would be compromised by the application of a criminal penalty for violating the entry ban, because the primary objective of the Directive is not to prevent illegal presence in the territory but rather to put an end to it. The current issue is to determine to what extent the use of criminal sanctions by Member States is allowed in the situation that an entry ban is issued against an illegally staying third-country national. This research focuses on this issue. [Subject: Criminal Law, EU?Law]

This book provides a systematic and comprehensive overview of the increased role of criminal law in managing migration, from a European, domestic and comparative law perspective. The contributors critically engage with the current trends leading to the criminalisation of irregular migrants, asylum seekers and those who engage in 'humanitarian smuggling' and the national and common policies calling for a broader use of criminal law measures. The chapters explore the measures used to protect borders and their impact in terms of effectiveness and their ability to strike a fair balance between security and the protection of human rights. The contributors to the book cover a range of disciplines within law, human rights and criminology resulting in a broad understanding of the issues at play.

This book examines the rules governing the right to asylum in the European Union. Drawing on the 1951 United Nations Convention relating to the Status of Refugees, and the 1967 Protocol, Francesco Cherubini asks how asylum obligations under international refugee law have been incorporated into the European Union. The book draws from international law, EU law and the case law of the European Court of Human Rights, and focuses on the prohibition of refoulement; the main obligation the EU law must confront. Cherubini explores the dual nature of this principle, examining both the obligation to provide a fair procedure that determines the conditions of risk in the country of origin or destination, and the obligation to respond to a possible expulsion. Through this study the book sheds light on EU competence in asylum when regarding the different positions of Member States. The book will be of great use and interest to researchers and students of asylum and immigration law, EU law, and public international law.

The EU Return Directive lays down minimum standards and procedures concerning the return of third-country nationals (non-EU nationals) illegally residing in a member state. To actually effectuate their return, the Return Directive provides for several instruments, such as the return decision, the entry ban and the possibility of detention. In this study, the author has researched the merger of criminal law with immigration law, known as the crimmigration phenomenon, in relation to the EU Return Directive. He has systematically assessed whether these EU instruments apply to the enforcement of these return rules and if they meet return policy or require adaptation in the light of primary and secondary EU law and the European Convention on Human Rights. In Crimmigration and the Return Directive crimmigration is explored from mainly three perspectives: the balance between the effective measures and the fundamental rights of the migrant, the legitimacy of criminal sanctions and the legal position of the migrant. EU Return Directive plays an important role in the enforcement of the EU return provisions that are based on criminal and semi-criminal rules. Member states are obligated to respect the fundamental rights of the illegal third-country national. However, there are two serious bottlenecks regarding the application of the current Return Directive: the fundamental rights protection for illegal third-country nationals is not fully developed, and criminal law safeguards and principles have a limited role. The research outcomes aim to benefit the primary actors involved with the Return Directive: the judiciary (CJEU, ECtHR and national courts), the Union legislature, the national legislatures and national authorities, advocacy, NGOs and the migrant.

Western societies are immersed in debates about immigration and illegality. This book examines these processes and outlines how the figure of the "crimmigrant other" has emerged not only as a central object of media and political discourse, but also as a distinct penal subject connecting migration and the logic of criminalization and insecurity. Illegality defines not only a quality of certain acts, but becomes an existential condition, which shapes the daily lives of large groups within the society. Drawing on rich empirical material from national and international contexts, Katja Franko outlines the social production of the crimmigrant other as a multi-layered phenomenon that is deeply rooted in the intricate connections between law, scientific knowledge, bureaucratic practices, politics and popular discourse.

This book explores the criminalisation of irregular migration in Europe. In particular, it investigates the meaning, purpose, and consequences of criminalising unauthorised entry and stay. From a theoretical perspective, the book adds to the debate on the persistence of irregular migration, despite governments’ attempts at deterring it, by taking an interdisciplinary approach that draws from international political economy and criminology. Using Italy and France as case studies, and relying on previously unreleased data and interviews, it argues that criminalisation has no effect on migratory flows, and that this is due to factors including the latter’s structural determinants and the likely creation of substitution effects. Furthermore, criminalisation is found to lead to adverse consequences, including by contributing to vicious cycles of irregularity and insecurity.

This is the first monograph providing a comprehensive legal analysis of the criminalisation of migration in Europe. The book puts forward a definition of the criminalisation of migration as the three-fold process whereby migration management takes place via the adoption of substantive criminal law, via recourse to traditional criminal law enforcement mechanisms including surveillance and detention, and via the development of mechanisms of prevention and pre-emption. The book provides a typology of criminalisation of migration, structured on the basis of the three stages of the migrant experience: criminalisation before entry (examining criminalisation in the context of extraterritorial immigration control, delegation and privatisation in immigration control and the securitisation of migration); criminalisation during stay (examining how substantive criminal law is used to regulate migration in the territory); and criminalisation after entry and towards removal (examining efforts to exclude and remove migrants from the territory and jurisdiction of EU Member States and criminalisation through detention). The analysis focuses on the impact of the criminalisation of migration on human rights and the rule of law, and it highlights how European Union law (through the application of both the EU Charter of Fundamental Rights and general principles of EU law) and ECHR law may contribute towards achieving decriminalisation of migration in Europe.