Book Review: The Criminalisation of Migration in Europe: Challenges for Human Rights and the Rule of Law

Post by Ana Aliverti, Assistant Professor at Warwick Law School. She’s on Twitter @a_aliverti.

Review of The Criminalisation of Migration in Europe: Challenges for Human Rights and the Rule of Law by Valsamis Mitsilegas (Springer, 2015)

Despite a growing academic interest on the criminalisation of migration, few studies have focused on its legal aspects with the rigour and breadth of Valsamis Mitsilegas’ new book. He covers three aspects of this phenomenon: the substantive criminalisation of immigrants; the utilisation of criminal law-like enforcement measures, such as detention and surveillance; and the deployment of prevention and pre-emptive measures to control and manage migration flows in the European context. As its title attests, the main focus of the book is this plethora of criminal law-like measures through a normative perspective, particularly their impact on human rights and the rule of law.

The book is divided into three broad sections. The first one examines the raft of pre-entry measures to prevent and scrutinise arrivals before people reach the external borders. Among these, Mitsilegas counts extraterritorial immigration enforcement operations, particularly the work of FRONTEX, which has been conceived primarily as a management agency in charge of coordinating enforcement operations by member states. The mandate granting the agency merely ‘technical’ competences, he argues, leads to the depoliticisation of border controls and the blurring of accountability structures, shielding member states from responsibility for abuses perpetrated in the context of FRONTEX operations. Under the remit of pre-entry policies, he includes the outsourcing of pre-screening tasks on private actors (e.g., transportation companies), the creation of a range of databases holding personal information, and the use of technology and surveillance for sorting incomers according to the risks they pose. The proliferation of these and other preventive measures, Mitsilegas explains, have been triggered by security concerns and have furthered the linkage between immigration and security underpinning much of EU policy making to the detriment of both citizens and non-citizens.   

The second part of the book focuses on the turn to criminal laws to regulate migration by EU member states. Mitsilegas argues that European Union laws have placed significant limits on the criminalisation drive thus protecting migrants from punishment. Yet, such a conclusion may be overly sanguine. While EU law doesn’t mandate the criminalisation of entry and stay, it obliges member states to impose criminal sanctions in certain circumstances against facilitators, human traffickers, and employers hiring people without permission to work. As debates on the ‘Facilitation Directive’ evidenced, the criminalisation of third parties has had a detrimental effect on migrants and refugees, pushing many underground and depriving them of access to basic services, such as health care, education, and housing. Further, EU law doesn’t prohibit the turn to criminal law for immigration enforcement. Even if the Court of Justice of the European Union (CJEU) declared the use of criminal penalties against immigration lawbreakers incompatible with EU law, the rulings in El Dridi, Achughbabian, and Sagor were primarily justified by guaranteeing the effectiveness of EU law, particularly the ‘Return Directive’ which establishes minimum standards for returning non-Europeans illegally staying in member states. The CJEU thus didn’t rule out member states’ appeal to criminal legislation to enforce immigration controls as long as the resulting penalties do not interfere with the removal process. As I argued elsewhere, by censuring the use of criminal sanctions on pragmatic grounds―namely that they may thwart a fast and swift expulsion of unauthorised non-EU citizens―the CJEU failed to assess national laws from a human right standpoint and therefore missed an important opportunity to advance a more progressive jurisprudence on the protection of the rights of non-Europeans.      

The third part of the book examines post-entry measures aimed at excluding certain ‘third country nationals’ from a range of legal protections and from the territory of member states. Within these measures Mitsilegas examines two groups of provisions. First, there are those aimed at excluding asylum seekers: the EU provisions to exclude refugees from their status, which are broader than those stipulated in UN rules; the ‘first safe country’ rule in the Dublin Regulation which privileges efficiency in the processing of asylum applications over fair asylum adjudication and the protection of human rights of applicants; and the removal of asylum seekers to safe countries outside Europe which shields from responsibility EU member states to examine asylum petitions while potentially placing applicants at risk. The second group of measures includes detention and removal. While the Return Directive has been important for setting maximum time limits to immigration detention and establishing minimum standards in removal proceedings among signatory member states, as critics warned, the Directive has upheld existing laws and practices across European states rather than setting limitations to the use of coercive powers on non-citizens. Indeed, as Mitsilegas forcefully argues, by institutionalising detention as a mean to enforce removal, the Directive did nothing to curtail its increasing use in immigration enforcement.      

Overall, this book offers an analysis of EU laws and policies which is both comprehensive and detailed. It draws on the author’s extensive knowledge and expertise on EU criminal and immigration legislation. It also examines areas which have been largely neglected in migration and EU studies, like the FRONTEX agency and its legal mandate. In other areas the book is less original, drawing on the ‘common wisdom’ of EU migration studies―for example, the section on technology and databases. While Mitsilegas is critical of EU policies and regulations, he appears overly optimistic about the capacity and willingness of the European tribunals to halt the securitisation of migration trend noticed and to uphold the human rights of non-Europeans. Yet, as others have argued, the European jurisprudence has been generally cautious in curtailing sovereign powers of member states in the context of immigration law enforcement. This book will be of interest to academics and practitioners who work on criminal law, immigration law, criminology, EU law and human rights.

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How to cite this blog post (Harvard style):

Aliverti, A. (2016) Book Review: The Criminalisation of Migration in Europe: Challenges for Human Rights and the Rule of Law. Available at: https://www.law.ox.ac.uk/research-subject-groups/centre-criminology/centreborder-criminologies/blog/2016/05/book-review-2 (Accessed [date]).