Crimmigration in the European Union: What makes an individual a criminal?
MA THESIS IN EUROPEAN STUDIES GRADUATE SCHOOL FOR HUMANITIES
UNIVERSITEIT VAN AMSTERDAM DR. HANNA L. MUEHLENHOFF
DR. STANCZYK JULY 2019
Contents
1. Introduction ………...3
2. Literature Review 2.1. Introduction ……….5
2.2. Crimmigration in the United States………..6
2.3 Crimmigration in the Europe Union………..8
2.4 Internal controls and internal border control: discretionary decision-making ………..11
2.5 Conclusion……….16
3. Theory & Methodology………..17
3.1.Crimmigration Theory: Juliet Stumpf (2006) ……….. 18
3.2. Enemy Penology Theory: Susanna Krasmann (2007)…………..20
3.3. Methodology ………21
3.4. Conclusion ………...24
4. EU acquis vs Member State law: Crimmigration ………..25
4.1. Introduction ………..24
4.2. European Union law: 2008 Returns Directive ………..27
4.3. C-44/2017 ………..28
4.4. Member State immigration law ……….30
4.5. Introduction ………31
4.6. France’s code de l'entrée et du séjour des étrangers et du droit d'asile ...32
4.7. Conclusion ...35
5. Internal Border Control and internal controls: EU and Italy ………36
5.1. Introduction ………36
5.2. Schengen Borders Code, Eurodac and Visa Information System 37 5.3. Case study of Italy: Populism & Matteo Salvini ………38
5.4. Italian immigration decree ………..42
5.5. Internal control and Internal border control: discretionary power 48 6. Conclusion ………52
Chapter 1. Introduction
The hashtag ‘#FreePia’ went viral in May 2019, when a petition was launched on the website Change.org. Pia Klemp, a German sea captain and member of the independent search and rescue organization Sea-Watch is now facing charges of a prison term of up to 20 years or a €15,000 fine for each individual illegally brought to Italy. In August 2017, Pia Klemp and nine other crewmembers of the rescue ship “Iuventa,” saved 6,000 people from drowning in the Mediterranean. Pia Klemp accused the European Union and Italian authorities of ‘criminalising solidarity’, whilst highlighting the extent to which the European Union would go to make migrants’ lives ‘expendable.’1 The Italian authorities, particularly Matteo Salvini – leader of the anti-immigration Lega Nord party, claimed that Pia Klemp’s boat worked alongside people smugglers from Libya by aiding illegal migration and should be arrested. With the Pia Klemp incident representing a prominent, but not unique, incident within the political backdrop of the so-called migrant crisis, it can be suggested that the European Union has reached a point where humanitarian actions and issues have now been successfully criminalised.
The so-called migrant crisis in the European Union began in 2015, as millions of people fled their home countries (predominantly from the Middle East and Africa) seeking refuge from conflict, terror, poverty, and persecution. Initially, some EU Member States took in large numbers of refugees into their country. However, the surge of new migrants into Europe
demanded a response at a multilateral level from all EU Member States to manage and alleviate the problem. Instead, serious administrative flaws were exposed in the European Union’s asylum system as well as its key policy areas of freedom, security and justice. Alongside the high
number of third-country nationals coming to Europe for international protection, there was also an alarming increase in irregular migration by third-country nationals into various European territories. In 2015 there were 2,154,675 third-country nationals found to be illegally present in all 28 countries in the European Union (Eurostat, 2019). This number called for immediate action between the Union and its Member States.
1 See “Stop the prosecution of those who are saving lives in the Mediterranea Sea!”
https://www.change.org/p/we-‐demand-‐impunity-‐for-‐saving-‐lives-‐at-‐the-‐mediterran-‐sea-‐ freepia.
As part of its agenda on migration, the European Union will combat irregular migration by handling it through return policies to ensure that it is in line with fundamental rights and principles of non-refoulement (European Commission, 2015: 7). On the other side of the spectrum, the European Union has criminalised human trafficking and smuggling of migrants. This response has led to a new phenomenon that migration and legal scholars have focused their attention on since its inception: crimmigration (Stumpf, 2006; van der Woude & van der Leun, 2017; Valsamis Mitsilegas, 2013; Kosinska, 2016; Marin & Spena, 2016). Originating in the United States, Juliet Stumpf coined the term ‘crimmigration’ in 2006, referring to the
convergence of the criminal justice system with the migration system (Stumpf, 2006: 376). In Europe, scholars have also noted a changing landscape of migration control, transitioning from being administrative to criminalised as a response to control migration and crime (Mitsilegas, 2012: 87). This means that the freedom of third-country nationals who arrive in Europe is now in jeopardy whilst they are potentially considered criminals. This thesis will explore the question of whether it should be categorised as a crime for an individual to illegally enter or stay in the European Union. Politically, a focus on crimmigration exposes the challenges that
criminalisation carries for the relationship between the Union and its Member States.
This paper will analyse and investigate the process and mechanisms of crimmigration that make certain groups of immigrants into criminals. The analysis will take place at two levels of criminalisation: 1) European Union law versus national law and 2) internal control and internal border controls. After an evaluation of the relevant literature in Chapter 2, an exploration of the empirical and theoretical methodology of this thesis will be provided in Chapter 3. This will focus on Stumpf’s (2006) crimmigration theory and Krasmann’s (2007) enemy penology theory. Building on this, Chapter 4 focuses on crimmigration, where, at the supranational level, the first criminalisation level comprises the 2008 Return Directive, 2008/115/EC, case C-444 of 2017 and the discretionary power involved in these legislations. At the national level, France and its code on immigration about irregular migration will be analysed with the supranational response under the crimmigration theory (Stumpf, 2006). Chapter 5 will focus on the second level of
criminalisation, where an examination takes place of the ways in which Italy and the European Union have (under the framework of security) adopted provisions to prevent and abolish the capability of third-country nationals from irregularly entering or staying in their territory. Relating to the internal border and the discretion of police at the border, this second part will
utilise the enemy penology theory as applied by Krasmann (2007) and focus on the effect of anti-immigrant rhetoric by Italian politician Matteo Salvini. After this, conclusions will be drawn in Chapter 6, bringing together the analysis under the framework of crimmigration theory and enemy penology theory.
Chapter 2. Literature Review 2.1. Introduction
Although scholars have focused on criminal law enforcement into immigration law in Europe, Australia and Canada, the phenomenon originated in the United States. That being said, the increasingly globalised nature of migration is a fundamental factor in the expansion of the term ‘crimmigration’ according to legal studies focusing on migration. The contemporary intersection of immigration law with criminal law (also known as crimmigration) refers to the application of criminal instruments to violations of immigration law. It is also understood as the shift of immigration law from an administrative task dealt with in civil courts to the
criminalisation of migrants through the process and mechanisms of criminal law (Stumpf, 2006: 387). Although the crimmigration debate has its roots in the US, its conceptualisation and practice have reached Europe, as this thesis will seek to evaluate. Crimmigration law has been studied extensively through an analysis of its process, mechanisms and challenges (Stumpf, 2006; Menjivar, Cervantes & Alvord, 2017; Garcia Hernandez, 2018; van der Leun & van der Woude, 2012), the judicial implications of the criminalising irregular migrants at both the European Union level and national level on third-country nationals (Kramo, 2014; Mitsilegas, 2013; Raffaelli, 2011) and lastly, scholarship dedicated to the role of discretionary decision-making in the context of internal borders (van der Woude & van der Leun, 2017; Brouwer, van der Woude and van der Leun, 2017; Dekkers, 2018). Since controlling crime continues to be a priority and key challenge in managing irregular migratory movement between Member States and the European Union, scholarly interest in crimmigration continues to grow. Specifically, this literature review will first present the origins of crimmigration in the US and subsequently transition to the contemporary debate in the European Union, including an evaluation of key literature focusing on differing internal border controls and discretionary decision making at the EU level, as well as in the individual Member States.
2.2. Crimmigration in the United States
In order to understand the procedures of crimmigration in the EU, it is important to introduce the origins of this new legal framework related to migration in terms of its origin in the United States. Much of the current political rhetoric surrounding immigration in the US is
focused around xenophobic remarks made by President Donald Trump towards immigrants who have gained unauthorised entry or re-entry to the country. In his presidential campaign
announcement speech, Trump framed the narrative against Mexican immigrants, saying that ‘...they’re bringing drugs. They’re bringing crime. They’re rapists. And some, I assume, are good people’ (Trump, 2016). Alongside rising anti-immigration rhetoric from much of the American political elite (including the President), migrants in the US continue to be marginalised.
Alongside this marginality, lies the security-based interpretation of migration in the US, what is and can be referred to as crimmigration. As a result, undocumented immigrants continue to be criminalised.
The convergence between immigration law and criminal law is not a recent phenomenon. In fact, it was conceptualised by scholars in the 2000s (Hernandez, 2018: 207). Juliet Stumpf was the first scholar to comment on crimmigration in her 2006 groundbreaking article, The
Crimmigration Crisis. She observed crimmigration law in the US to be at the intersection of immigration law and criminal law, in terms of both substance and procedure (Stumpf, 2006: 376). Prior to this notion, Stumpf argued that both of these legal sectors previously functioned
separately from one another whilst now it is hard to disentangle them. For example, criminal law operated under a criminal court and its respective criminal procedures to safeguard society from those who committed acts of crime such as murder, robbery or rape. Conversely, immigration law regulated the terms relating to whether an individual may or may not reside in the United States (Stumpf, 2006: 379). In the US, each state and Federal government retains the power to decide what sort of conduct to criminalise. It is no surprise that violations of immigration law are now one of the types of crime a person can commit and be punished for. Therefore, many other scholars have critiqued Stumpf and her crimmigration concept by suggesting to adopt a
distinctive outlook on immigrants and immigration, while others have explored its globalised expansion and the related implications on private sectors (Garcia Hernandez, 2018; Menjivar,
Cervantes & Alvord, 2017). In turn, European scholar used Stumpf’s crimmigration-debate to indicate its appearance in Europe (van der Leun & van der Woude, 2017).
In the United States, treatment of immigrants since the 1980s has indicated a dependence on the framing of migrants as a threat. Today, crimmigration law remains under the American legal system because migration control heavily relies on its security-centred approach.
Understanding the emergence of crimmigration as a concept in the United States is essential to understanding its standing today as well as its expansion to other parts of the world. According to Stumpf (2006), the late-1980s marked the beginning of the fusion between criminal and
immigration law. Similarly, Garcia Hernandez (2018) suggests that the Reagan Administration in the 1980s was responsible for the first legislative act, the Anti-Drug Abuse Act of 1986, that targeted immigrants that had violated immigration law. The initial punishments against undocumented immigrants who were connected to illicit drug trafficking included acts of detainment, imprisonment, sanctions and deportation (Stumpf, 2006: 384). The September 11 attacks on the World Trade Center in 2001 shifted the focus on drug trafficking to acts of terror. As noted by Stumpf, terrorism has further exposed the interconnection of both legal sectors due to the USA Patriot Act of 2001 that allowed for non-citizens to be detained without probable cause (Stumpf, 2006: 386). Corresponding with this statement, Garcia Hernandez (2018: 2006) also mentions that the act of terror altered immigration law enforcement, which became heavily influenced by securitisation. Both scholars found that these two significant time periods reflect the division between two separate laws that now find each other as interchangeable when dealing with migration. The merging of criminal and immigration law indicates that politically, salient issues must arise to effectively maximise the criminalisation of immigrants. In turn, this comes to question the motivations that augment crimmigration law and its future.
When crimmigration was coined in 2006, the nation was still under the presidency of George W. Bush, whose administration supported immigration legislation that made it difficult for individuals to attain citizenship in the United States. Stumpf argued through membership theory that the junction of crimmigration took place in three distinctive areas, which can explain the process and mechanism transformation of immigration law violations. Firstly, the substance of criminal and immigration law overlapped. Next, in a legal context, it was observed that the enforcement of immigration was similar to the enforcement of criminal law. Lastly, the
procedural aspects of punishing immigration breaches have also been demonstrated to resemble the criminal procedural process (Stumpf, 2006: 381). Overall, these three areas determine who can be a US citizen and who cannot. Building on this, according to Garcia Hernandez (2018: 210), contemporary crimmigration law has developed into a tripartite arrangement stemming from the original criminal and immigration law foundation. The three components of
crimmigration law are comprised of: immigration status based on criminal background; a function within state and federal criminal procedures; and lastly, covered enforcement strategies that combine traditional criminal and immigration law. These factors created a malicious part of the United States law and legislative enforcement (Garcia Hernandez, 2018: 213). Rather than focusing on the composition of crimmigration law, Menjivar, Gomez Cervantes and Alvord (2017: 8) are interested in the globalised expansion of crimmigration law and the way it has created an image of ‘brown people’ as a threat to other nations. Nevertheless, scholars have also begun to use the framework of crimmigration theory to interrogate the increasing securitisation of migration policy in Europe (van der Leun & van der Woude, 2012: 42). Although the
experience of crimmigration in the United States and in Europe is different, several scholars have noted its presence in the European Union in certain Member States. The following section of the literature review will be focused on scholars exploring the subject in Europe as well as distinct conceptualisations and theoretical approaches to crimmigration.
2.3 Crimmigration in Europe
Since 2015, the European Union and its Member States have been facing grave
challenges in migration and security. The ongoing conflicts in the Middle East and North Africa (MENA) have forced millions of civilians to flee from war due to the lack of political instability in the region. Consequently, this has caused irregular crossings at the external borders of the European Union, whilst terrorist attacks carried out in Europe have been connected to the
conflicts (Frontex, 2019: 36). The EU has offered various policy and legislative responses, but it appears predominantly concerned with effective return policies such as the 2008 Returns
Directive. At the national level, some member countries have responded by criminalising migrants for irregular entry or stay as a method of migration control (Mitsilegas, 2013: 87). Crimmigration manifests itself in a distinctive manner outside of the US because of political and legal differences in approaches to migration management. Nonetheless, the criminalisation of
third-country nationals that are irregularly migrating is a legal challenge and affects the relationship between the EU and Member States (Kosińska, 2016; Raffaelli, 2011). The
intertwinement of crimmigration as a practice to European Union law has also prompted research into how this development has affected the acquis (the body of European law) (Mitsilegas, 2013; Kramo, 2014).
The link between shared competence of the EU and the Member States in the area of freedom, security and justice under Article 4 of the Treaty on the Function of the European Union (TFEU) and the European Union’s power to criminalise and define criminal offences (Article 83 TEU) is vital in understanding of crimmigration. In accordance with the
criminalisation competence, in an effort to deal with irregular migration, the EU criminalised individuals involved with human trafficking and smuggling as a way to securitise migration (Mitsilegas, 2012: 88). Despite this, Kramo (2014, 28) argued that criminal sanctions for immigration violations operate under the national law of Member States. Likewise, Mitsilegas (2013: 98) asserted that certain Member States criminalise the conduct of irregular stay or entry. In other words, at a national level, members of the EU resort to criminalisation to resolve
migration dilemmas. According to Mitsilegas (2013:88), criminalisation as securitisation of migration in cases regarding to human trafficking and smuggling is influential to the Member States implementing criminal measures toward third country nationals. Although the European Union has adopted regulations on human trafficking and smuggling to remedy irregular
migration, it also implemented the 2008 Returns Directive to ensure the effective return of third country nationals. By having two separate legal systems taking measures against immigration, that necessitates the intervention of the European Court of Justice. Therefore, Raffaelli (2011: 467) observed the judicial decision and its effects on national legislation of other Member States and European Union law. Within the framework of crimmigration, the relationship between the EU and the Member States serves as a tool for understanding the legal effects of its function and what drives it.
Since Member States have used criminal law measures to control migration as a way to inhibit irregular entry or stay of third country nationals into their countries, it was inevitable for the European Union to ensure that they were complying with the 2008 Returns Directive and to determine the repercussions of case law decisions on the return of ‘illegally staying’ third
country nationals. Mitsilegas, Kramo and Raffaelli analysed legal rulings by the European Court of Justice and their application of the Returns Directive against national law. In Kramo’s (2014: 44) research, the decisions of both cases - El Dridi and Achughbabian - demonstrated that European Union law placed limits upon the Member States to criminalise irregular entry or stay. Although restrictions were placed, the regulation permitted Member States to apply criminal law provisions with the sole purpose of preventing immigrants from remaining in their country without legal documentation (Raffaelli, 2011: 483). According to Raffaelli (2011: 484), in the case of El Dridi, the Court’s ruling had direct effects on national sovereignty and national legal systems, for example, when the Italian government approved a decree with the goal to implement the Returns Directive. Thus, if European Union law holds primacy over national law, this poses significant consequences for future action by both the European Union and Member States towards irregular migration. In Mitsilegas’(2013) analysis on the two cases, El Dridi and Achughbabian also revealed that the Court had placed restrictions on national law that
criminalised irregular entry or stay as an end in itself. Most importantly, Mitsilegas was able to conclude that the different approaches at the European Union and national levels have brought challenges to the relationship between the two in managing migration. The ways in which they both align and contradict each other within the processes of crimmigration in Europe places fundamental questions and very tangible uncertainties over the future of third-country nationals. Lastly, it might also be suggested that there needs to be more research on the role of
discretionary decision making in the European Court of Justice in regards to irregular migration. Scholars have identified the merging of crime control and immigration control in Europe through policies and law as well as their direct legal consequences on national decree. Mobility has been subject to criminalisation as immigration violations have become subject to criminal penalties. Academic literature lacks a discussion on the role of discretionary decision-making to apply or not apply the law, which then also reflects the relationship between the EU and Member States to cope with the so-called migration crisis. However, this is part of the process of
crimmigration and it can point to the core of what causes an immigrant to be characterised as a criminal. The 2008 Returns Directive grants Member States discretion in regards to the form and structure of the written confirmation of the circumstance of a third-country national who is staying illegally but cannot be removed yet from the country of residence. Also, under Article 2(2)(b) of the Directive, Member States alone decide whether or not to apply it or consider it a
criminal offence and thus apply sanctions according to national law (Kramo, 2014: 38). Both Kramo’s and Mitsilegas’ analyses disregard the discretionary power that is bestowed to Member States as a factor to influence the process of crimmigration and what is driving the trend.
Mitsilegas mentioned that, ‘shared competence between Member States and the European Union in the field of migration law raises complex issues with regard to the degree of sovereignty or discretion left to Member States when they legislate on irregular migration and when they promote legislative choices resulting in the criminalisation of migration’ (Mitsilegas, 2013: 98). Migration is a shared competence, although when there are two different objectives, it can affect the forces that drive the European Union or Member States to criminalise third-country nationals for irregular entry or stay. Consequently, Mitsilegas (2014: 110) argued that the EU seeks to ensure the effectiveness of its law. Kramo and Mitsilegas both focus on discretion in decision-making within a judicial setting by the European Union and its Member States even though the notion of borders has also been frequently analysed in crimmigration scholarship concerning the exercise of discretion (e.g. Dekkers, van der Woude & van der Leun, 2014). Therefore, the role of discretion from state actors and officials to enforce national law or European Union law when it comes to border control is essential to the crimmigration debate.
2.4 Internal controls and internal border control: discretionary decision-making
The Schengen zone has also been studied through the lens of crimmigration, as the study of borders and border management are often measures of crimmigration enforcement (van der Woude, van Berlo, 2015: 63). Today, internal borders are contextualised by the criminalisation of migration control (van der Woude & van der Leun, 2017; Dekkers, 2018; Brouwer, van der Woude & van der Leun, 2017). What actually brought Europe to this point is a consequence of the contemporary situation concerning immigration as well as the notion of crimmigration. In 2011, Europe talked of momentarily reinstating internal border controls because of the growing numbers of refugees fleeing from the armed and political conflicts in the MENA region,
stemming from a period of political upheaval known as the Arab Spring (van der Woude & van Berlo, 2015: 61). By 2015, Europe began to experience the so-called migration crisis, leading to the securitisation of migration because of its connections to crime, terrorism, human trafficking and people smuggling. However, the different Member States each respond to migration in a distinct way, impairing the European Union in its search to come up with a unified solution to
the problem (Estevens, 2018: 2). This all serves to consolidate the validity of the Schengen Borders Code that offers Member States the ability to temporarily control their internal borders in the event that a serious threat has been made against the country. Currently, six members of the Schengen zone have at some point reintroduced border controls (Norway, Sweden, Denmark, Germany, Austria and France). Other countries, such as the Netherlands, have conducted
policing rounds on their internal borders at their discretion (van der Woude & van der Leun, 2017: 28). Consequently, discretionary power in internal border control plays a significant role in the process of crimmigration and moreover, in revealing information about what individuals are targeted.
Effectual border control is in the interests of both the European Union and its Member States due to the ongoing migration challenges in the Mediterranean region. Whilst the European Union has an inclination to adopt a humanitarian approach, the Member States are concerned about national security (Estevens, 2018: 15; Völkel, 2018: 83). Indeed, other states used discretionary law enforcement checks to control both migration and crime (van der Woude, 2017). According to van der Woude and van der Leun (2017:29), there are various aspects that can explain the process of crimmigration: in particular, border control and the role of
discretionary decision-making. Van der Woude and van der Leun are both legal scholars that conducted an investigation focused on street-level officials with the purpose of identifying the kind of policing taking place at the internal borders of the Netherlands. Building on a corpus of literature on discretion, Dekkers, van der Woude and van der Leun (2014: 1) also analysed internal patrolling of the Dutch border, focusing on the political, legal and social context of discretionary decisions, as this can impact street-level decision-making. Van der Woude and van der Leun intended to find the most vital discretionary decision in the understanding of the process of crimmigration and its repercussions by looking at the relationship between policy makers that opened up discretionary space for patrol officials on the ground. While Dekkers, van der Woude and van der Leun analysed over 250 documents in an effort to see how securing the border in the Netherlands has transformed in a period of 20 years, they also sought to add an internal dimension to crimmigration scholarship due to the lack of literature on internal borders, since Stumpf’s 2006 definition acts as a border itself by determining who is included and excluded.
Both texts utilise the Netherlands as an empirical case study for random checks at internal borders under the discretion of law enforcement officials. In van der Woude and van der Leun’s 2017 article, the importance of law-makers choice is stressed, as it provides Member States with the discretionary power to stop individuals at the border. As observed in this particular study, the Dutch government adopted the Mobile Security Monitor, which was implemented on a restricted time schedule for immigration controls conducted by the Royal Netherlands Marechaussee, a gendarmerie force responsible for border control. Under the Aliens Decree and the 2012 Police Act, the Royal Netherlands Marechaussee was allowed to stop any automobiles or individuals to verify their identification card and legal status in the Netherlands (van der Woude & van der Leun, 2017: 29). Within the framework of discretionary decision-making, the Royal Netherlands Marechaussee and the Dutch government are the main actors responsible in implementing a procedure of crimmigration, where legal enforcement officials need not to have probable cause (such as criminal activity) to verify documentation at its borders (van der Woude & van der Leun, 2017: 29). In doing so, this goes back to the growing concern over crimmigration, with migrants being criminalised and thus deprived of any opportunity to achieve legal status. Moreover, focusing on borders demonstrates that there is a larger scope to crimmigration than just policies. European Union and national laws are also making significant decisions implicating the lives of individuals. However, it necessitates the evaluation of the impact of countries’ internal controls towards irregular migrants and where the authority resides to decide who stays and who must leave. Most importantly, it is crucial to investigate how and why legal enforcement has been implemented through the strengthening internal controls, with for example, the discretionary power bestowed upon police guards at the border to target certain individuals.
Dekkers, van der Woude and van der Leun (2014: 4) examined the social setting in which Dutch patrol officials performed their job, in order to understand the decisions made on the street-level by law enforcement officials. Under the Aliens Act and Aliens Decree, immigration stops were allowed in a 20-kilometer area around the Dutch-German and Dutch-Belgian border to check for identification and legal status (Dekkers, van der Woude & van der Leun, 2014: 9). Arguably, the most relevant piece of information found about these checks was that there were no rules or criteria formulated on stopping individuals or vehicles. On the contrary, patrol officers lacked probable cause and thus were found to resort to profiling. As a result, the authors assessed that the social changes occurring at the European Union level were based on
criminalisation of migration and security concerns about internal border control (Dekkers, van der Woude & van der Leun, 2014: 5). The role of the Mobile Security Monitor has since transformed from a tool for immigration management to a facet of crime and migration control as growing concern over terrorism and crime has manifested itself at border-level. Consequently, through a qualitative discourse analysis of 259 policy documents, a group of scholars found that in the last time frame of 2011-2013 the expansion of discretionary power was due to the threat of drugs, crime and terrorism (Dekkers, van der Woude & van der Leun, 2014: 10). In other words, under exceptional circumstances that pertain to national security (in this case cross-border crime and irregular migration) including the willingness to maintain that security goes beyond normal practices. This is where both of the articles’ examination on discretionary decision-making is impactful; its purpose is to determine its role in the process of crimmigration and whether it can affect third-country nationals directly.
Both articles focusing was to explain the significance and influence of discretionary decisions on the process of crimmigration. Van der Woude and van der Leun’s study proposed that actors responsible for the intersection between crime and immigration control can be found in the higher levels of criminal law decision-making (van der Woude & van der Leun, 2017: 40). Dekkers, van der Woude and van der Leun (2014) however, re-examine the street-level decision-making (that is revisited in the 2017 study). Their street-level analysis on the Mobile Security Monitor determines that its main purpose was unclear in the sense that checks can serve as a tool to manage immigration, crime or both at the same time (Dekkers, van der Woude & van der Leun, 2014: 15). Accordingly, the authors concluded that due to the inconsistencies and
ambiguity of Mobile Security Monitor’s objectives and range of authority, it is assumed that this led to discretionary decisions made by border patrol officers (Dekkers, van der Woude & van der Leun, 2014: 15). Whereas van der Woude and van der Leun (2017: 40) concluded their study stating that even though street-level decisions have been claimed to be the most prominent factor to the crimmigration process, it was discretionary decisions made by an upper level actor that resonated most with crimmigration practices. Based on the findings of these two studies, this can be suggested to represent a reflection of a narrow perception of the power of discretion. The research on the subject of discretionary decision-making is solely focused on the framework of crimmigration. However, the thesis will include the framework of security alongside
criminalisation of certain migrants across the European Union. In that context, it can look at the interaction between political leaders, police, migrants and discretionary decision-making. This is relevant to this thesis, which explores the increasing convergence of migration and crime control strictly outside of street-level decisions and outside the legal discipline, which few studies focus on.
In contemporary Europe, scholarship on crimmigration relating to border control predominantly concerns research on border policing in distinct contexts. The first context concentrates on border policing but also on the opinions of patrol officers and individuals that are stopped in the border in the Netherlands, in terms of procedural fairness and legitimacy (Brouwer, van der Woude & van der Leun, 2017). The second context concerns border profiling as an instrument of crime and migration control, most importantly identifying the role of race and nationality in the selection process (Dekkers, 2018). Both of the articles cited above build on empirical research conducted at the Dutch border. According to Brouwer, van der Woude and van der Leun, their research focused on discretionary decision-making and its lawfulness. Doing so, the authors sought to emphasise the distinctions of perceptions from both the officers and the citizens, as they were necessary to better comprehend the problems of procedural justice and legitimacy (Brouwer, van der Woude & van der Leun, 2017: 639). Conversely, Dekkers stressed the importance of the influence of profiling based on race and nationality as this would result in harsh criticism over its discriminatory nature. Indeed, Dekkers argued that by researching the organisational context of the border selection process, potential questions about how patrollers would categorise an irregular migrant might be answered (Dekkers, 2018: 27). Indeed, studying aspects of internal border control on a national level accentuates the increasing concern over crime, irregular migration and security.
A vast amount of literature has emerged on the topic of crimmigration in recent years in Europe, and there is considerable variation in context, actors, processes and approaches.
However, the application of the ‘enemy penology theory’ (see Chapter 3- Krasmann, 2007), to internal controls and internal border control and its ability to act on it, is very rare. This theory postulates that even if crimmigration laws are similar across various European countries, the outcomes of European internal border control, depend on the local context. Dekkers, van der Woude, van der Leun and Brouwer expand slightly on the role of discretionary decision-making
in the context of internal border control towards irregular migration and crime. Brouwer, van der Woude and van der Leun, however, concluded through their empirical research that discretionary decision-making does not affect the legitimacy of the Mobile Security Monitor since non-Dutch citizens and Dutch majority groups approved border checks (Brouwer, van der Woude & van der Leun, 2017: 624). Those who did not found that there lacked explanation as to why an individual was stopped, in the case of a Dutch ethnic minority group. Overall, the patrol officers were committed to non-discriminatory treatment as they took up their duties. Conversely, Dekkers observed that when officers stopped a vehicle, it was based on stereotypical ideas, nationalities and race, since they are not provided with specific guidelines on how they can determine who is an irregular migrant (Dekkers, 2018: 25). Consequently, this is essential because of the
ambiguous law and organisational factors involved in the selection process. These two articles relied on fieldwork that gave significant insight into the selection process at the internal border as it is increasingly gaining attention among scholars for being symbolic in the process of
crimmigration. In addition, the studies have also focused on national action whereas the literature lacks insights about what the incentives are for certain countries to establish instruments to guard their internal borders such as crime rates, number of irregular migrants and terrorist attacks. Lastly, research on the role of discretionary decision-making at the supranational level - not just at a national level in the framework of judicial decisions and internal border control - might provide motives for why Member States resort to criminalisation.
2.5 Conclusion
Migration is not a recent issue within the broader political agenda of the European Union, but the ways in which it is managed have developed over time. What originated in the United States soon began to appear in Europe, as it became increasingly commonplace to criminalise the irregular entry or stay of third-country nationals in the various Member States. The convergence of criminal law mechanisms in immigration law, or what Stumpf referred to as crimmigration, results in recognition of undocumented migrants in Europe as criminals. Mitsilegas, Kramo and Raffaelli have all observed that both the European Union and its Member States use the
criminalisation of irregular migrants as part of their strategy to manage migration. Similarly, it is part of policy and law to deter migration by associating it with criminality. For Stumpf, it was fundamental to propose a theory, as it would help explain the development of crimmigration law
in the United States. Crimmigration law in the United States serves as an instrument to exclude an immigrant from society or in this case, the nation state. In other cases, it proves those who are worthy of being a citizen of the United States. Other American scholars adopt Stumpf’s
terminology to illustrate how crimmigration law has evolved since 2006 and has expanded due to globalisation (Garcia-Hernandez, 2019; Menjivar, Cervantes & Alvord, 2017).
In the European Union, the criminalisation of migration frames irregular immigration as a grave problem that requires an immediate solution. Despite this, many scholars have perceived the new trend in various contexts, although migration is a complex issue that lacks a uniform approach. This is because the European Union is made up of 28 Member States, all of which criminalise irregular entry or stay differently. For instance, they may experience migration challenges in a way that is not impacting their economy and society profoundly. Due to the plurality of approaches, much academic attention to the interpretation of European Union law and national law and on internal controls and internal border control. Much of the literature surrounding the merging of criminal law and immigration law focuses on its conceptualisation, legislative and policies analysis, as well as human rights issues and border control. Building on these studies, the criminalisation of migration, specifically irregular migration, will be analysed through the processes and mechanisms that make certain groups of migrants into criminals. For the purposes of this paper, a framework of both crimmigration theory and enemy penology theory, as well as empirical and theoretical research on European Union law and national law towards immigration, discretionary decision-making in a legal paradigm, internal controls, internal border control and discretionary power by the police at the border, allows an
understanding into the forces that drive crimmigration and thus make certain individuals into criminals. Understanding the relationship between the EU and its Member States is also
fundamental as it raises complex issues regarding what the legal guidelines are for criminalising migrants whether it is in a legal setting or at the internal border. Lastly, the thesis will hopefully gain insight into how the criminalisation of third-country nationals with irregular stay or entry transpires.
Chapter 3. Theory & Methodology
Building on the works presented in the literature review, this theory and methodology chapter will continue to establish a theoretical and empirical framework used in this thesis to
further explain the concept of crimmigration in the context of the European Union. This chapter will also seek to explain how two key theories can be used: ‘crimmigration theory’ by legal scholar Juliet Stumpf as well as Susanne Krasmann’s theory of ‘enemy penology.’
3.1. Crimmigration Theory: What is it in a European context?
In 2006 Juliet Stumpf developed the notion crimmigration in her fundamental article, ‘The Crimmigration Crisis: Immigrants, Crime, and Sovereign Power,’ through an analysis of the merging of immigration law and criminal law in the United States. In her paper, Stumpf proposed that the crimmigration crisis manifested itself through the linkage between these two bodies of law by acting as a process of exclusion, which then demonstrated the power of the sovereign state to decide who is included or excluded in society. This is the foundation of crimmigration theory because it describes the overall objectives behind the emergence of crimmigration. She argued that adding the frame of criminality to immigration law leads to criminal law and immigration law being inseparable. This is because the substance, enforcement and procedural aspects of both laws have progressively overlapped. However, there were certain differences between criminal law and immigration law that have remained, considered essential by Stumpf as to when and how people would be excluded from the United States according to the legal system (Stumpf, 2006: 381).
The underlying function of both criminal and immigration law is that they are systems of ‘inclusion and exclusion,’ insofar as they are designed to decide whether and how to accept or reject an individual as members of society (Stumpf, 2006: 380). The difference between immigration law and criminal law is that the former was originally an administrative task
handled in civil court (Stumpf, 2006: 381). Traditionally, criminal law handles criminal offences in criminal court, which results in incarceration as punishment. Now, immigration violations are defined as criminal (Stumpf, 2006: 381). What remains the same is that, in the US, even though immigration and criminal law converged, federal government control over matters of
immigration law and the state’s management for criminal law has not changed (Stumpf, 2006: 394). Nonetheless, the similarities demonstrate how immigration and criminal legislation in crimmigration theory interconnect and affect the legal status of a migrant. Within crimmigration theory, immigration law enforcement has transformed to equate to criminal law enforcement, which then resulted in criminal and immigration areas to break down the federal-state divide
(Stumpf, 2006: 389). States then give authority to local law enforcement officials to select and detain those who violated immigration law. The similarities in procedural aspects of both criminal law and immigration law are founded on the basis that judicial decisions on violations of immigration law follow repercussions that previously were limited to criminal offences, such as incarceration and deportation. Therefore, crimmigration theory also refers to the aftermath of stripping undocumented immigrants from society and an opportunity to become a citizen. Not only that, the transition that has taken place through the criminalisation of immigration in the United States as traced by Stumpf, has shaped society’s perception of immigrants as criminals and eventually, terrorists and security threats.
Stumpf adopted a theoretical approach in her analysis to consider the causes of
crimmigration. She puts forward membership theory to explain why the junction of criminal and immigration law has taken place. Membership theory concerns the legal entitlements that
individuals retain as part of a society and its relationship with the government (Stumpf, 2006: 377). In other words, it is a theory concerned with the legal system that categorises the
individuals who are to be included or excluded. At the core of this theoretical inquiry, Stumpf (2006: 396) argued that the main purpose of immigration and criminal law lies in that both legal systems exist to protect the membership of individuals in the US. Under immigration law, non-membership is assumed from the beginning whilst exclusion means that an undocumented individual must be deported from the US. Meanwhile, criminal law states that an individual has full membership until proven guilty and then will be excluded from society through incarceration. Yet, the main component within membership theory is the power bestowed upon
decision-makers to either accept or deny individual membership to society. In crimmigration theory, the criminalisation of the immigrant is used as a tool to abolish any status of membership and all that it includes such as rights, freedoms and legal protections. Crimmigration can legally prevent undocumented migrants from possessing the benefits of being a citizen.
An important aspect of crimmigration theory is the role of decision-makers in the
crimmigration process since the future of undocumented immigrants is highly dependent on their choices. This can also be seen through the government’s ability to act under its discretionary power to either encourage or force the removal of an individual (Stumpf, 2006: 402). This is essential in demonstrating who the primary actors involved are and how policy-makers reach a
decision and criminalise migrants during this process of crimmigration. In the case of the European Union, the situation might be seen as more critical because of the shared competence in migration between the EU and its Member States. Moreover, there are two causes identified by Stumpf as to why immigration law has transformed to include criminal mechanisms: a shift in criminal penology from reintegration to stricter incentives such as preclusion and the expressive power of the state; and the adoption of the significant role of sovereign power in immigration law to criminal law (Stumpf, 2006: 402). For example, immigration law relies on its use of deportation when a violation of either immigration or criminal laws take place, even for minor criminal offences. Doing so means that gaining membership status is more selective due to the new instruments that are increasingly entering into immigration law. However, crimmigration theory also focuses on how the powers of the sovereign state are the main drivers of inclusion and exclusion. The states’ sovereign power facilitates the government to use its discretion to decide who can be or cannot be a citizen of the United States (or the EU). Either way, it also maintains a criminal punishment aspect whilst the image of undocumented immigrants becomes identical with criminals.
3.2. Enemy penology theory at the internal border and internal controls
Susanne Krasmann adopted the ‘enemy penology’ or ‘Feindstrafrecht’ theory created by German criminal law professor Günther Jakobs in 1985. In Krasmann’s 2007 paper ‘The enemy on the border: critique of a programme in favour of a preventive state,’ she mentions Jakobs’ thesis, in which he offers a legal directive pertaining to exclusion for ‘enemies’ (Krasmann, 2007: 302). However, Krasmann extends her analysis by arguing against enemy penology theory being interpreted solely on the grounds of criminal law. Instead, she suggests that the theory instigated a new model of security policy, leading to the evolution of the state and its ideologies of constitutionality and eventually to be undermined by security concerns (Krasmann, 2007: 302). For the purposes of this theory, Krasmann (2007:304) maintains that, ‘the figure of the enemy is paradigmatic for the boundary relationship between exception and rule, inside and outside...’ and as enemy penology violated the traditional borders, it thus was the driving force for the change in the democratic constitutional state. In accordance, the author conceptualises borders as in the context of the boundaries between the nation state’s outside and inside abilities, where ‘outside’ the enemy would be dealt with under criminal law (Krasmann, 2007: 304). Lastly, enemy
penology manifested itself as a method of deterrence, yet also ended the democratic constitutional state by instilling insecurity and promoting security.
Krasmann links the theory of enemy penology to security issues as a means of resonating with the initial preventive state as argued by Jakobs. She includes Jakobs’ study in order to demonstrate the transformation from criminal policy to a strategy providing solutions for modern security issues to the nation state. According to Jakobs, since the 1970s, German Police Law has been concerned with security originally due to the terrorist threat from the Red Army Faction. This provides an explanation on how, in Germany, a security threat became the leading impetus to protect against the enemy (Krasmann, 2007: 302). Correspondingly, Jakobs is more interested in the legal system itself rather than the democratic constitutional state. However, Krasmann (2007: 308) argues that pre-emption is essential to enemy penology and its ability to interconnect risk-centred notions of criminal and security policy. Hence, this culminates in the concern with the enemy, which Krasmann states will always be present, which then in-turn requires state action towards threats against security. Among these developments, enemy penology is no longer just seen in the national, but also in the international scene of criminal justice and security policy. This is because the category ‘enemy’ is flexible: it was not purposely directed only at terrorists or political criminals only (Krasmann, 2007: 311). In addition, like Stumpf, Krasmann notes that those enemies (whether they are criminal offenders or terrorists), would be punished and lose legal protections. Therefore, it can be posited that the enemy penology theory tied together neatly ties the notion of the creation of enemies together, highlighting the shift from the preventive state to pre-emptive and the importance of securitisation, which is vital to the contemporary border control.
3.3. Methodology
In this thesis, the crimmigration concept by Stumpf represents a fundamental approach to the examination of legal and institutional convergences in law. Her analysis is particularly focused on seeking an answer to why the criminalisation of immigration took place in the US and how that created the insider-outsider classification. Doing so demonstrates the concept of crimmigration as a strategy. Formulating an answer to this question might help formulate the motives for criminalising immigrants and also to how immigration controls are applied to criminalise third-country nationals. Crimmigration theory concerns the developments in
migration control at the European Union level and Member State level, providing a framework for an exploration of the paradoxical relationship between the two and the resultant implications on irregular migrants. Additionally, there are legal studies in the field of migration that provide case law analysis to demonstrate the increasing trend of migration and crime control by
criminalising irregular migration (Kramo, 2014; Mitsilegas, 2013; Raffaelli, 2011). This literature focuses on case law decisions by the European Court of Justice on EU law and the 2008 Returns Directive. Nonetheless, this thesis will adopt a methodology based on document analysis with the purpose of understanding the dichotomy between the European Union and Member State action towards managing irregular migration within the process of crimmigration. Once the motives of both the EU and Member States are identified, it will help to reveal what is put into practice as well as what is actually happening to irregular migrants. This paper will consist of primary sources that will be critically analysed in order to interrogate the European Union and Member States’ response to irregular migration.
This thesis will initially examine the supranational EU approach and response through the 2008 Returns Directive along with an analysis of a case law decision C-444/17 - Prefet des Pyrenees-Orientales v Abdelaziz Arib, regarding the criminalisation of third-country nationals in an irregular situation. The 2008 Returns Directive is chosen due to its legally binding nature for Member States, including when it refers to the return of illegally staying third-country nationals under any circumstances, but also because it is the law most commonly used by the European Court of Justice to rule on a case concerning irregular migration. Hence, case law decision C-444/17 will be utilised, which pertains to the illegal entry of a third-country national into France. Similarly, France’s Code de l'entrée et du séjour des étrangers et du droit d'asile concerning regulation and punitive action of illegal migration will be assessed and compared to the
European Union’s legislative approach. For example, according to the European Union Agency for Fundamental Rights, France is a country whose immigration law is particularly relevant to this discussion because it punishes any non-national or non-citizen of a European Union Member State who enters their territory ‘illegally;’ under the regulations of Schengen Borders Code through a fine of €3,750 euros and one-year imprisonment (FRA, 2014: 10). Using
crimmigration theory, this paper will also compare both legal enforcement to determine the extent of the influence of discretionary decision-making in judicial matters to the criminalisation of third-country nationals and how crimmigration emerges. Therefore, considering policy
documents from the European Union and its Member States offers a suitable method for examining the underpinnings of the crimmigration process in the European Union towards certain third-country nationals.
The concept of crimmigration will be further scrutinised, however, this will occur outside of a law-based analysis and instead will principally utilize Stumpf’s crimmigration theory itself, as well as Krasmann’s enemy penology theory, which will be applied to explore internal controls and internal border control as part of enforcers to the criminalisation trend. This theory
emphasises the construction of the enemy, the transformation of a preventative state to a pre-emptive one and the increasing concern based on security issues that are essential factors in maintaining modern-day internal border control in the European Union (Weber & McCulloch, 2018: 11). Since the European Union is known for its freedom of movement and abolishment of internal border control, scholarship on border control has initially focused on external borders. In addition, literature is comparatively scarce on the study of internal border outside of the context of crimmigration. For the case of the European Union, applying the enemy penology theory to internal controls and internal border control has the aim of shining a light on the relevance of criminalisation in the case of third-country nationals. It will also take a different approach to Stumpf’s membership theory over inclusion and exclusion. Instead, it discusses why and how legal enforcements reach the decision to include or exclude. In other words, the framing migrants as enemies and immigration as a security issue.
Unlike previous research, this paper will investigate primary sources from the European Union’s internal controls on border management including: Schengen Borders Code, Eurodac and Visa Information System. This will provide a basic understanding of the EU’s objectives for creating these preventive and securitised systems of border control. Not only that, it will also provide an insight into their importance to Member States in a situation of national security. They depend on these three systems, which are also fundamental to control migration and crime without violating the Schengen Agreement. Similarly, to present an analysis on a national level, the thesis will contain a study of the current conditions of irregular movement in Italy, its political landscape, its immigration legislation on irregular entry and stay as well as internal controls in the form of border policing and discretionary power at the internal border. Italy can be considered an insightful case study of internal border control and internal controls because it
is one of the countries that has hosted the most migrant arrivals whilst also temporarily reinstating protection at their internal border. Most importantly, it is also one of the major destinations for third-country nationals. Enemy penology theory will help to illustrate what has influenced the construction of Italy’s internal enemy, leading up to the involvement of national security. Based on the findings, this thesis hopes to indicate whether discretionary power given to border patrol officers is dependent on the situational problems of the nation state - in this case, Italy. The research also attempts to determine how internal border control plays an important role in the crimmigration process and what the driving forces are to criminalise third-country
nationals under this setting. 3.4. Conclusion
Migration is a global issue, which also makes it very complex. This is certainly the case in Europe since the management of migration represents a shared competence between the EU and its members. Consequently, the concept of crimmigration as coined by Stumpf (2006) can no longer be taken for its narrowest definition. In fact, on the subject of the European Union,
scholarship has suggested that the process of crimmigration is quite far-reaching and requires further research (van der Woude & van der Leun, 2017; Mitsilegas, 2012; Dekkers, 2018). This is the primary rationale for applying two distinct theories to the crimmigration thesis, especially when it is directed at a specific group of irregular migrants that are being criminalised at the national level. Both theories seek to serve as tools for critically and comparatively analysing how both the European Union and its members interact in the area of crimmigration. In this way, both theories might offer an illustration of what is going on at the supranational EU level and between nation states when it comes to irregular migration issues. However, one limitation of the adopted research method of document analysis is that it lacks insight on the consequences concerning third-country nationals that are now criminalised. This may be useful information to my research question, ‘how does crimmigration in the European Union make certain groups of immigrants into criminals,’ by going outside of the institutional and legal aspects of crimmigration. In addition, by applying two separate theories, there is a slight risk that a misinterpretation of the motives of immigration and crime control in the European Union is produced. Nevertheless, the research aims to contribute a useful answer to the question of why the frame of criminality is placed upon irregular migrants as well as seek to explore what happens to those that are
criminalised. Migration is an extremely large and complex issue, and research ought to focus on specific cases. This thesis aims to achieve a thorough understanding of the problems facing scholars concerned with EU migration and border practice, through the lens of two theories, which offer an insightful and novel analysis. Additionally, future research in this area of inquiry can build on the findings of this thesis, whilst addressing some of the more grounded limitations, as explained above. To conclude, the chosen methodology attempts to provide a critical and focused analysis of this globalised phenomenon, crimmigration, as well as opening up new lines of inquiry for future research in this area.
Chapter 4. EU law and Member State law: Crimmigration 4.1. Introduction
Even before the so-called migration crisis began in 2015, the European Union and its Member States have been working together to reduce the problems attached to monumental migration flow spread across the continent, and more specifically, illegal movement by third-country nationals. However, there has been no European-wide solution since both the EU and its states share the task of confronting the ongoing demographic issues of Europe. In 2018, Member States detected 361,636 third-country nationals staying illegally in the European Union (Frontex, 2019: 24). Moreover, detections of the irregular border crossing at border crossing points suggest that between 2,258 and 150,114 migrants were irregularly crossing borders between crossing points (Frontex, 2019: 9). These numbers represent how the European Union and nation states are still struggling to deal with irregular migration. This chapter focuses on the European Union 2008 Returns Directive and case law decision C-444/17, Prefet des Pyrenees-Orientales v
Abdelaziz Arib. Whereas, at a national level, with the example of France’s Code de l'entrée et du séjour des étrangers et du droit d'asile (Code of Entry and Residence of Foreigner and the Right of Asylum), immigration law is applied. This chapter will first explore punitive measures for when a person enters or stays in a country illegally, particularly when the safeguards of the 2008 Returns Directive should apply as well as examine the court ruling. Following on from this, a comparison will be made with the immigration legislation of France. Within crimmigration theory, this chapter seeks to depict the contradictions and alignments between both powers against irregular stay and entry by third-country nationals and how that may affect how crimmigration occurs.
Source: Frontex Risk Analysis, 2019: 4
4.2. EU law: 2008 Returns Directive, a humanitarian approach or promotion of criminalisation?
There is a lack of consensus on how to govern irregular migration between Member States and the EU. However, migrants are subjected to crime control throughout the process of immigration nowadays. The European Union has an obligation to combat irregular immigration, requiring them to deter and decrease irregular movement, specifically by means of a return policy that is consistent with fundamental rights (European Parliament, 2019: 1). In terms of policy priority, the flow of irregular migrants entering and staying in Europe is often found to be interconnected with the prevention of human smuggling, improving external border controls, developing an effective return policy and cooperating with non-member countries. The EU has, therefore adopted major pieces of legislation to fight against irregular immigration. Despite this, the creation of an efficient method for returning a third-country national back to their home country has been proven to be the most problematic undertaking. Nevertheless, the European Union adopted a return policy, which is regulated in the Return Directive, i.e. Directive
2008/115/EC. This specific regulation is key when discussing irregular migration management. This is because Member States have imposed prison sentences, sanctions, detentions and acts of
removal against third country nationals for staying in and entering their territory illegally. Without the 2008 Returns Directive, European Union law could not get involved in the process of the return of undocumented individuals if, after returning to their home country under a return order, they unlawfully re-enter the territory.
In accordance with Article 1, this directive provides the generic principles and processes to be implemented in Member States for the return of illegally staying third-country nationals, in agreement with fundamental rights, as well as international law, which includes refugee
protection and human rights obligations. This demonstrates how the European Union prioritises a humanitarian response rather than the criminalisation of migrants in an irregular situation. The termination of illegal stay involves the respective Member State to issue a return decision to any third country national that is staying illegally in their country, without prejudice to the exceptions mentioned under Article 2, paragraphs 2 to 5 (Article 6). Moreover, a third-country national could also be required to leave immediately for reasons of public policy or national security (Article 6(2)). However, if the immediate return of the person is not required, the return decisions within Article 7 will allow for an appropriate period for the voluntary return of between 7 and 30 days. It is noted that this does not disregard the chance for the third-country nationals concerned to depart earlier than the voluntary time given and also for a Member State to adjust the days for certain circumstances. Upon removal in Article 8, Member States are permitted to, as a last resort, use forceful procedures but only if no voluntary departure has been granted. For example, Article 11 allows for return decisions to include an entry ban, which shall last no more than five years. Lastly, Article 15 permits Member States to detain a third-country national that has been issued a return decision, as a means to prepare their return and effectively start the removal process. Most importantly, the irregular migrant cannot be detained for an amount exceeding six months.
The processes of crimmigration have manifested themselves in the European Union through the linking of two bodies of law, in this case, the 2008 Returns Directive and national immigration law. Under crimmigration theory, this directive is relevant because through the role of decision-makers in case law decisions and those that are included in the provisions, it has given discretion to Member States on how to control irregular migration. This is seen through a Member States’ ability to impose an entry ban, which may also exceed the five-year limit if the
third-country national is a threat to national security (Article 11). In addition, Member States are also able to withhold the causes for return in writing, as well as issue entry-ban and removal decisions, for reasons based on, ‘…national security, defence, public security and for the prevention, investigation, detection and prosecution of criminal offences’ (Article 12). Lastly, third-country nationals may be detained longer than the six months if they do not cooperate or there are significant delays in retaining the required documents from third countries (Article 15). The 2008 Returns Directive does not objectively criminalise a third-country national for illegally staying or entering into the European Union. It also does not prevent Member States from using criminal mechanisms to control both migration and crime. Thus, crimmigration theory also focuses on the powers of the sovereign state that retains its competence to use its discretion to decide whether or not instruments of crimmigration should be imposed.
4.3. C-44/2017: Irregular migration
This section will explore where European Union law and national immigration law converge and also identify the processes where some Member States adopt punitive action to combat irregular migration through the European Court of Justice. The 2008 Returns Directive does not implement criminal sanctions against irregular stay or entry as such. Rather, its purpose is to verify whether Member States are compliant with its objectives when they criminalise third-country nationals. In the 2017 case Préfet des Pyrénées-Orientales v Abdelaziz Arib (C-444/17), a request for a preliminary ruling pertaining to the 2008 Returns Directive, as well as the
Schengen Borders Code and French law was initiated concerning an illegal entry of a third-country national. In a case like this, the referring court asks: 1) whether border control that has been reinstated at an internal border of a Member State may be interpreted as equal to border control at an external border in relation to illegal border crossing; 2) does Article 2(2)(a) apply to the previous situation and 3) whether Article 4(4) of the 2008 Returns Directive should be
interpreted as not preventing the incarceration of third-country nationals in the specific context of this case. Ultimately, this will either extend the scope of the 2008 Returns Directive or not be applicable, therefore, resulting in France not being able to comply with the procedures of the directive.
On 15th June 2016, Abdelaziz Arib, a Moroccan national, was checked on French territory near the internal border between France and Spain. Mr. Arib was detained and put in
custody by the police as they suspected that he had illegally tried to enter France, which under Article L. 621-2 of the Ceseda was an offence (C-444/17). As a result, the Prefect made an order that required Mr. Arib to leave France and be held in administrative detention. However, on the 21st June 2016, the Regional Court in Perpignan ordered the annulment of Mr. Arib’s
apprehension in order to foresee the application of the 2008 Returns Directive where no term of imprisonment could be executed under this circumstance. In that context, the Prefect launched an appeal against the order by the Regional Court before the referring Court (the Court of Cassation in France), arguing that the procedure of the 2008 Returns Directive does not apply to third-country nationals who under Article 14 of Schengen Borders Code are subject to a refusal of entry or are stopped in connection with an irregular crossing of the external border of a Member State and therefore have no right to stay in that particular country. Therefore, the Cour de cassation asks the European Court of Justice to determine whether the reintroduction of internal border control can be equated with an external border, in light of the 2008 Returns Directive, Article 2(2)(a).
According to the European Commission, France requested a temporary reintroduction of border control at internal borders in the period 27/01/2017-15/07/2017 due to consistent terrorist threats (European Commission, 2018: 4). It occurred again in the period 01/11/2017-30/04/2018 due to further terrorist threats and all internal borders was provisionally reintroduced. In
paragraph 36, Mr. Arib was declared not to be subject to a refusal of entry into France but rather was checked at France’s internal border after they had reintroduced border control under Article 25 of the Schengen Borders Code. Most importantly, under Article 2(2)(a): ‘Member States may decide not to apply this Directive to third-country nationals who: are subject to a refusal of entry in accordance with Article 13 of the Schengen Borders Code, or who are apprehended or
intercepted by the competent authorities in connection with the irregular crossing by land, sea or air of the external borders of a Member State and who have not subsequently obtained an
authorization or a right to stay in that Member State,’ therefore Mr. Arib does not fall into any of these two situations.
Subsequently, the Court concluded that the Schengen Borders Code prevented an internal border from being equated to an external border. Lastly, the court also looked at whether the 2008 Returns Directive would apply in this situation and ruled that the return procedure as noted
