Third-Country Nationals (TNCs) have a distinct legal standpoint in the Treaties as part of the Area of Freedom, Security and Justice (AFSJ). Within the more general context of the often mentioned conflict between Freedom and Justice, on the one hand, and Security, on the other, one can more specifically view the TNCs’ situation as being determined by the balance between the interest of the state to maintain public security and the rights of the individual. The sociological discourse has claimed that migration is perceived as a threat to national sovereignty, a perception that should predominantly shape the “management of migration flows”. This policy has been termed a ‘securitization’ of migration. Both on the EU level and on the MS level the policy paradigm has resulted in the criminalization of irregular migration, which has been conceptualized as ‘crimmigation’ in the literature. On the EU level this has taken the form of efforts to deport migrants from the Union’s territory. This paper will focus on Directive 2008/115/EC (the Returns Directive).
Besides the developments at EU level, the MSs have retained and excluded the Union’s competences from measures concerning national security. According to Article 72 TFEU, the EU may not impose measures on MSs within the AFSJ that affect “the maintenance of law and order and the safeguarding of internal security”. On this basis, several MSs have enacted additional legislation that imposes criminal sanctions on irregular migrants. This has led to conflicts before the ECJ about their compatibility with EU law. The two countries in this regard were France and Italy. The criminalization of migration in these countries is therefore of special interest to this paper. The irregular TNC thus faces a migration regime that is largely determined on the MS level but coordinated to a certain extent at the EU level. First of all this has implications for the extent of his criminalization. Within the overlap of EU and national competence in this field, to what extent can MSs impose additional sanctions on irregular migrants? Secondly this concerns the scope of Fundamental Rights. To what extent are MSs allowed to intrude on the personal liberty of the TCN in the control of migration?
Table of Contents
I Introduction: Migration concerning Third Country Nationals in EU law
A Research Questions
B Outline of this paper
II. Securitization and Crimmigration
A Securitization in Europe
B Making Sense of Securitization – the Foucaultian Approach
C Security and the Individual in Jeremy Bentham’s philosophy
D Crimmigration as arbitrary rule
E Weltanschauung and the ECJ
III The Returns Directive and MA ‘crimmigration’
A The Returns Directive – An overview of the process of deportation in EU law
B Detention in the Returns Directive
IV ECJ jurisprudence and constraint on crimmigration
A Fundamental Rights and the MS sovereignty and the intersection of MS/EU jurisdiction
B EL Dridi
C Achougbhabian
V Conclusion
Research Objectives and Themes
This paper examines the criminalization of migration within the European Union, specifically focusing on how the Returns Directive (2008/115/EC) interacts with national legislative measures in Member States like France and Italy. It investigates the tension between the EU's securitization agenda, the protection of fundamental rights, and the extent to which Member States retain discretion to impose criminal sanctions on third-country nationals.
- Theoretical frameworks of 'securitization' and 'crimmigration' based on Foucault and Bentham.
- The scope and implementation of the Returns Directive regarding the deportation of third-country nationals.
- Member State practices in criminalizing irregular migration and their compatibility with EU law.
- The role of the European Court of Justice (ECJ) in balancing security interests and fundamental rights.
Excerpt from the Book
B Making Sense of Securitization – the Foucaultian Approach
Scholars have attempted to identify the underlying logic of the policies of ‘securitization’. For this purpose they built upon the work of Michel Foucault’s paradigm of gouvernmentalité (Governmentality). According to Foucault, the development of a modern criminal justice system has been signified by first introducing a greater diversification of control to fit punishment with crime, therefore an increase on the stratum of punishment according to crime. For this purpose a detention regime has developed that uses technologies of incarceration, including technologies of surveillance to discipline individuals. The detention regime uses direct constraint, isolation and separation from the public to achieve this. Disciplinarity lies central within the detention regime; it is a concept that enables a mechanism that facilitates subjectivation, deviancy within individuals while at the same time maximizing their utility. The techniques of disciplinarity that emerged in the modern society are the construction of a homogeneous space, in which individuals are distributed, that is clearly separate from the outside and keeps groups of individuals localizable within it, parcelling within the space to create smaller spaces to keep individuals from agglomerating and to control their communication amongst each other and the attribution of function and rank together with mobility and interchangeability amongst ranks to individuals. The last important technique of discipline is that of the measurement and distribution of time, say the ‘cutting’ of time into bits, together with the attribution of specific, detailed, small tasks to these bits and a strict sequencing of these.
Chapter Summaries
I Introduction: Migration concerning Third Country Nationals in EU law: Introduces the core conflict between state security and individual rights, framing the criminalization of migration as a 'securitization' process.
II. Securitization and Crimmigration: Explores the theoretical underpinnings of security and criminalization using Foucaultian and Benthamite perspectives to critique migration policies.
III The Returns Directive and MA ‘crimmigration’: Details the provisions of the Returns Directive and analyzes national 'crimmigration' regimes in France and Italy.
IV ECJ jurisprudence and constraint on crimmigration: Analyzes specific ECJ case law (El Dridi, Achougbhabian) to determine how the Court limits or enables national criminalization of migrants.
V Conclusion: Synthesizes the findings, arguing that the ECJ follows a Benthamite approach to security while rejecting arbitrary criminalization of migrants.
Keywords
Securitization, Crimmigration, Returns Directive, Third-Country Nationals, Fundamental Rights, ECJ, Detention, Migration Policy, Member State Sovereignty, Bentham, Foucault, Deportation, European Public Order, Criminal Sanctions, Legal Limbo.
Frequently Asked Questions
What is the core focus of this research?
The paper focuses on the 'criminalization' of irregular migration at the EU and Member State level, examining how this interacts with fundamental rights and the Returns Directive.
What are the central themes discussed in this work?
Central themes include the securitization of migration, the tension between national sovereignty and EU law, the interpretation of the Returns Directive, and the legal constraints on punishing third-country nationals.
What is the primary research question?
The research asks to what extent Member States can impose additional criminal sanctions on irregular migrants within the overlap of EU and national competence, and to what extent they may intrude on the personal liberty of third-country nationals.
Which scientific theories inform the methodology?
The paper utilizes political philosophy and sociology, specifically the paradigms of Michel Foucault (Governmentality/Discipline) and Jeremy Bentham (Utilitarianism/Security).
What is the scope of the analysis in the main body?
The main body analyzes the legislative framework of the Returns Directive, compares national practices in France and Italy, and scrutinizes ECJ case law regarding the compatibility of national criminal measures with EU law.
Which terms best characterize this study?
The study is characterized by terms such as crimmigration, securitization, fundamental rights, and judicial jurisprudence.
How does the author define the 'Benthamite' approach in the context of the ECJ?
The author suggests the ECJ adopts a Benthamite view where fundamental rights are not natural rights, but are enabled by and subordinate to the effective functioning of the legal framework (the public order).
What is the significance of the El Dridi and Achougbhabian cases?
These cases are significant as they illustrate the ECJ's intervention in preventing Member States from applying criminal penalties that undermine the effectiveness of the harmonized EU returns procedure.
- Quote paper
- Arne Millahn (Author), 2013, Criminalization of Migration at EU and MS Level. The Role of Fundamental Rights, Munich, GRIN Verlag, https://www.grin.com/document/317139
