Criminalization of Migration at EU and MS Level. The Role of Fundamental Rights

Content

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

Bibliography

I Introduction: Migration concerning Third Country Nationals in EU law

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”^[1]. This policy has been termed a ‘securitization’ of migration͘^[2] 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 literature͘ On the EU level this has taken the form of efforts to deport migrants from the Union’s territory͘ 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 FSJ 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.

A Research Questions

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?

B Outline of this paper

To address these questions the paper will be divided into three parts of analysis. The first part will introduce the concepts of ‘securitization’ and ‘crimmigration’. A discussion of Foucalt’s and Bentham’s philosophies of power, liberalism, security and individualism will provide the necessary background to make sense of the concept. A discussion of the theoretical underpinnings of ‘crimmigration’ will situate the concept in the framework of ‘securitization’. This will provide the theoretical frame in which the ECJ’s judgments will be analysed in the third part.

The Returns Directive will be the focus of the second part of the analysis. First its provisions will be described in depth. Furthermore the ‘crimmigration’ at MS level will be presented͘ This will be done on the basis of the cases France and Italy. . The MSs France and Italy are selected as exceptional cases as they both face a high inflow of migrants as well as that their ‘crimmigration’ regimes both were subject to challenge before the ECJ. The legal uncertainties ascribed to the provisions of the Returns Directive should shed further light on the relationship between the Returns directive and MS ‘crimmigation’ activities. The aim of this analysis is first to identify the possible discretion that MSs retain in their implementation, which has been a particular point of discussion.^[3] This inherently includes the MSs’ discretion in applying criminal sanctions on TCNs and therefore their discretion in protecting Fundamental Rights.

The third part will focus on the case law of the ECJ about challenges to MSs actions under the Returns Directive, as follows: Two cases will be discussed, first the El Dridi case^[5], then the Achughbabian case^[6]. They will be compared to the findings of the first two parts of the analysis. The aim of that comparison will be to assess, within the framework of the Returns directive, whether the CJEU restricts the MSs and/or the EU’s aspirations of ‘crimmigation’; and furthermore how the Court balances between security and individuals’ FR.

II Securitization and Crimmigration

A Securitization in Europe

The creation of the internal market and the abolition of internal border controls have been identified as the dependent variables that have contributed to the perception of immigration as a security issue. ^[7] One should see this development in the wider context of the (sociological) concept of ‘securitization’.^[8] Securitization with Europe in its focus first aims to describe the development of the AFSJ as a policy dominated by the aim of security. Security in this regard is determined as the precondition for Freedom and Justice. ^[9] The role of the AFSJ for the EU citizen exemplifies this: First, the EU citizen enjoys the right of free movement across the territory of the Union. Secondly he enjoys the freedom from danger and threat, including especially the threat posed by illegal immigration. These two ‘freedoms’ have then been aligned so that freedom of movement of the EU citizen is only possible in the absence of inter alia illegal immigration. ^[10] Said alignment can be interpreted in the wider context of different Weltanschauungen.^[11] Now first an overview of the process of securitization follows.

The substantive forms of securitization at the EU level have taken place primarily after the introduction of migration, refugee and asylum law into the EU treaty at Maastricht and their transfer into the first pillar at Amsterdam. They followed the initial wish of MSs to coordinate and cooperate in an intergovernmental fashion paralleling the (then) European Communities to address policy problems associated with the abolition of internal borders. Asylum as a scape goat for economic immigration had been an influential political view in these efforts, a paradigm that is interpreted as having pre-structured efforts towards migration control as a part of the European Integration project.^[12] The TREVI group as a national civil servant forum to combat serious cross border crime, for example, included migration in its discussions as well.^[13]

More recently the Tampere and The Hague programmes have exemplified the ‘securitization’ approach. The Tampere programme first followed the abovementioned approach that security is offered to the citizen as a precondition to his freedom of movement. Important in this regard was the delinking of the AFSJ from the internal market logic, in other words making it a policy competence in its own right decoupled “from the normative rationale of the single market” and therefore enabling policies that better fell under the categories of preserving national sovereignty (including pooling it on EU level) and the construction of a ‘European Public Order’^[14]. The idea of a ‘European Public order’ took up a central position in the AFSJ and remains a prerequisite for its proper understanding: This idea mirrors the national sovereignty concept and defines, in general terms, the approach towards migration flows on the European level. Subsequent to the Tampere programme the perception of immigration as a threat has rather intensified. Whereas the Europeanization in this field has changed from a more executive driven to an intergovernmentalist form of cooperation^[15] to a mixed form of supranationalism and intergovernmentalism^[16] to the depillarization since Lisbon, neither the MSs nor the Commission have fundamentally deviated from the approach, with some small deviations by the Commission and the EP^[17]. Since the Pact on immigration in 2008, which precluded and influenced the current Stockholm programme, MSs are even aiming at a watering down the freedom of movement of persons, say of its own citizens, at the borders of the EU. The establishment of a new border management currently in discussion, the Entry Exit system, would record and save all personal data of every individual.^[18] However, the Commission and EP strongly resist this impetus that originates within some MSs. They put forward that this approach would leave freedom of movement of persons being an empty shell, which, in Bigo’s summarization, the constraint on government for the respect of individuals’ freedom of movement mustn’t be undermined by the fight against illegal immigration͘ The Entry Exit System on the other hand would subject the citizens to “a speedy movement of persons under high surveillance with no physical obstacles”͘^[19] The aim of the collection of policy initiatives under the ‘smart border’ heading, which are the current stage of the process of securitization, moves therefore from the system that already utilizes a high level of surveillance and control towards TCNs as one general category of suspicious persons, to an overarching ‘smart border’ that automatically controls the flow of migrants and Union citizens at the external border. Aside from already existing measures within the internal security domain, say EUROPOL and the SIS, this has the potential to violate in new dimensions of state control the (Fundamental) rights of individuals, of EU citizens specifically (e.g. Data privacy) as well as TCNs (e.g. the right to asylum).

This paper specifically focusses on the Returns Directive, which also operates already as part of a system characterized by the attempt to first observe migration in three circles concentrically around the nucleus of the European Public Order, namely the countries of origin of TCN migrants, the transit countries and physical borders of the EU, and the territory of the Union itself, in other words the MS territories. The process of ‘crimmigration’ forms a core element of ‘securitization’ specifically within the latter.

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.^[20] 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.^[21] 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,^[22] parcelling within the space to create smaller spaces to keep individuals from agglomerating and to control their communication amongst each other^[23] and the attribution of function and rank together with mobility and interchangeability amongst ranks to individuals^[24]. 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. Of central importance in Foucault’s analysis of society is his detection of the power of normalization, which has arisen amongst the other established powers^[25] in the 18th century. The other is the power of surveillance. Surveillance enables the detailed detection of compliance to disciplinarity. Its effectiveness lies in its construction of a distributed integrated system with many observers who observe amongst each other. Through this net of observation a net of relationships of power is established. Its power lies in its diversification. The surveillance inherent in disciplinarity feeds into the power of normalization, as its detailed observation enables the detailed monitoring of the behaviour of all individuals; measuring them to an established normality.

Foucault’s sociology is best understood if seen as a critique of the Liberal philosophy of Jeremy Bentham. As a utilitarian he constructed his philosophy from the ethical principle of the greatest happiness of the greatest number, say the utility in a community. From the principle he concluded for a stable social system of law and polity determinative is “the happiness of the individuals, of whom a community is composed, that is, their pleasures and their security, [which] is the end and the sole end which the legislator ought to have in view[͘΁”^[26] In Bentham’s work the provision of Security is determining therefore the value of norms and the proliferation of civil individual liberty they enable. For this purpose he has engaged in an effort to lay down in utmost clarity and detail how norms should be made and what their purpose would be. He was influenced by the exactness and the clarity of the rules of the emerging empirical sciences, to ‘discover’ a system of rules that would positively judge and order individuals and the community was his motivation.

C Security and the Individual in Jeremy Bentham’s philosophy

Security in Bentham’s philosophy is defined by three dimensions which correlate to criminal law, civil law and constitutional law respectively, security against offences, security against disappointment and security against mistrust.^[27]

Security against offences aims at establishing a body of laws that should prohibit acts that violate utility in a community. Accordingly, as utility is individually determined, any act can be an offence, but the effect of an act on the good of the community (their utility) is what determines what should be a crime and what the appropriate punishment would be. Therefore only law can decide what would be a crime and what not, and such a law must orient its consequentive punishment on the objective effect on utility. However, as utility is based on the ability of reason; and punishment reduces the utility of the punished, so must the effect of punishment be inclined to not revenge, but education. This has a time dimension to it as it sees the prevention of crime as the aim of punishment and deterrence is its principle means. Apart from the crime itself also acts correlated with crime are considered, which should be made less desirable to prevent crime from another angle, to first apply less coercive measures than punishment. ^[28]

The time dimension apparent in the security against offences is nurtured in the security against disappointment. The latter has the function to reduce, through law, the uncertainty faced by individuals, the arbitrariness to which they are exposed and to enhance the subjective security of individuals as corresponding to the objective security provided by the Benthiam legal system.

[...]

^[1] Art. 79(1) TFEU

^[2] J Huysmans , 'The European Union and the Securitization of Migration' [2000] JCMS 751; D Bigo, 'Security and Immigration: Toward a Critique of the Governmentality of Unease' [2002] A 63

^[3] R Raffaelli, 'Criminalizing Irregular Immigration and the Returns Directive: An Analysis of the El Dridi Case ' [2011] EJML 467

^[5] C-61/11 PPU Hassen El Dridi, alias Soufi Karim [2011] ECR I-03015

^[6] C-329/11 Alexandre Achughbabian v Préfet du Val-de-Marne [2011] ECR I-12699

^[7] JEF HUYSMANS, 'The European Union and the securitization of migration', (2000) 38 JCMS: Journal of Common Market Studies, ;CHRISTIAN KAUNERT, 'The rea of Freedom, Security and Justice: The Construction of a ‘European Public Order’', (2005) 14 European Security,

^[8] HUYSMANS, 752

^[9] DORA KOSTAKOPOULOU, 'An open and secure Europe? Fixity and fissures in the area of freedom, security and justice after Lisbon and Stockholm', (2010) 19 European Security, 152

^[10] Id. at 153

^[11] cf B Making Sense of Securitization - the Foucaultian Approach

^[12] HUYSMANS, 755

^[13] D. CHALMERS, et al., European Union Law: Cases and Materials (Cambridge University Press 2010). 498

^[14] KAUNERT, 467

^[15] Under Maastricht’s third pillar

^[16] After the Amsterdam Treaty amendments

^[17] While being an advocate of a more liberal approach to migration, before the introduction of co-decision in the AFSJ, the EP has aligned with the Council (the MSs executive) towards ‘securitization’ ARIADNA RIPOLL SERVENT, 'The European Parliament and the 'Returns' directive: The end of radical contestation; the start of consensual constraints?', (2010) SEI Working Paper, 10

^[18] EUROPEAN COMMISSION, 'Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL establishing an Entry/Exit System (EES) to register entry and exit data of third country nationals crossing the external borders of the Member States of the European Union', in Directorate-General for Internal Policies of the Union (ed) 2013).

^[19] DIDIER BIGO, 'Immigration controls and free movement in Europe', (2009) 91 International Review of the Red Cross, 57;id. at 582

^[20] M. FOUCAULT, Überwachen und Strafen: die Geburt des Gefängnisses (Suhrkamp 1976). 169

^[21] Id. at 177 ; one mustn’t reduce utility to economic utility in this context, but employ the philosophical definition of utilitarianism which leaves open the question of what is considered useful

^[22] Id. at 181

^[23] Id. at 183

^[24] Id. at 187

^[25] The power of law, the power of word and text, the power of tradition

^[26] ANGELA MARCINIAK, 'Overcoming Uncertainty - New Thoughts on Bentham's Conception of Security', in (New York University, 2012). 1

^[27] Id. at 4

^[28] Id. at 4f