Crimmigration in the European Union: The case of immigration detention

By Izabella Majcher

For over a decade U.S immigration scholars and practitioners have observed a growing convergence between criminal justice and migration control systems. Regular posts at the crImmigration.com blog document the spread of this phenomenon in the U.S. This post, which builds on the author’s Global Detention Project working paper “Crimmigration” in the European Union through the Lens of Immigration Detention, aims to give some insights into how the phenomenon of crimmigration has influenced the European Union (EU) legal system.

Arguably, immigration detention represents the most peculiar manifestation of crimmigration in the EU. The EU immigration detention regime comprises two sets of rules: the 2008 Returns Directive, governing pre-removal detention, and the 2013 (Recast) Reception Conditions Directive, governing asylum detention. Member states are required to transpose the EU directives into their domestic legislation, i.e. to adapt their laws to meet the goals provided in the directives.

There are two distinct trends within the broad phenomenon of crimmigration. The first one, also called “criminalization of migration,” refers to the use of criminal sanctions for violations of immigration law, the most extreme form of which is punishing irregular stay with imprisonment. Importantly, the EU immigration detention regime appears to restrict to a certain extent the scope of this trend. The rulings by the Court of Justice of the EU in El Dridi and Achughbabian, show that the Returns Directive provides for some limits on states’ prerogatives to punish status-related offences with imprisonment. Although in principle criminal legislation falls under the scope of the states’ competence, domestic penal provisions must not jeopardize the achievement of the objectives pursued by EU law. On this basis, the court in found in El Dridi and Achughbabian that imprisonment for the failure to comply voluntarily with the return decision or for irregular stay itself—imposed during or prior to return proceedings—is not compatible with the Returns Directive because criminal prosecution leading to imprisonment would delay removal. This interpretation of the Directive has nevertheless only a limited impact on the criminalization of migration because states are free to impose a sentence of imprisonment if removal has failed. In any case, however, Global Detention Project research appears to show that the formal criminalisation facet of crimmigration is not very common among EU countries. There are few states that punish status-related offences with imprisonment.

Rather, it is the second facet of crimmigration that can be viewed most clearly in the EU. One key aspect is adding criminal offences to the grounds justifying expulsion in immigration legislation. More broadly, however, this trend refers to the incorporation of criminal law’s functions, priorities, and techniques into (administrative) immigration law. As Legomsky observed, this incorporation is selective. Immigration law absorbs stringent features of criminal law enforcement, while deliberately rejecting protective elements that accompany criminal process. 1 This mismatch is beneficial for states. Authorities may apply criminal justice methodologies while acting within an ambit of (administrative) law that does not require due process guarantees to be observed.

Arguably the EU immigration detention regime is an example of such discrepancy. Across the EU immigration detention is most often defined as an administrative process. Authorities insist that detention of non-citizens is merely a preventive and non-punitive measure resorted to during asylum or removal proceedings. Administrative denomination of this measure is of unquestionable benefit for states. Ordered by executive rather than judicial officers, administrative detention is a flexible and less costly tool than detention ordered under criminal law. For migrants it implies that they do not have access to fair trial guarantees that their criminal counterparts are entitled to under article 6 of the European Convention on Human Rights. Yet, arguably, formally administrative EU immigration detention regime has incorporated criminal justice objectives that can render it punitive in practice.

The above claim that the objective pursued by a sanction may reveal the nature of the sanction as administrative or criminal stems from the jurisprudence of the European Court of Human Rights. Aware that states may tend to qualify a sanction as administrative in order to avoid applying the fair trial guarantees under article 6 of the European Convention, in Engels v. The Netherlands the court developed three non-cumulative criteria to distinguish criminal proceedings from administrative ones. The Engels criteria are as follows: 1) formal denomination of proceedings under domestic law; 2) the nature of offence sanctioned by the penalty in question; and 3) the nature and severity of that penalty. Under the last criterion, the court assesses the nature of the penalty by looking mostly at the objective for which is was imposed. Thus detention that occurs for a reason traditionally associated with punishment—deterrence, retribution, or incapacitation—will be deemed to have a criminal character in practice, irrespective of its formal administrative label under domestic law.

Arguably, each of these criminal justice objectives exists in the EU immigration detention regime. First, it is submitted that the Reception Conditions Directive, due to its broad terms, does not preclude systematic and prolonged detention of asylum seekers aimed at deterring future arrivals. Three grounds justifying detention under the Directive may implicitly allow such practice, notably detention in the context of a procedure to decide on the right to enter the territory; for determination or verification of an asylum seeker’s identity or nationality; and determination of the elements on which the asylum application is based (art. 8(3)). These grounds sanction detention in a vaster range of cases than what is permitted under the United Nations High Commissioner for Refugees’ Detention Guidelines.

The potentially deterrent function of detention under the Directive results also from the fact that, unlike international refugee law, the Directive does not restrict the use of detention only to preliminary assessment of identity or facts on which the asylum application is based. Thus, in contradiction to refugee law, detention sanctioned under the Directive may extend to the whole asylum determination process. Moreover, states are not prevented from detaining asylum seekers for lengthy periods, since the Directive does not set a maximum permissible length of detention.

In turn, the Returns Directive allows states to punish a non-citizen’s supposedly non-cooperative behaviour with detention. The Directive sets out two grounds for detention on account of lack of cooperation by the returnee. First, states may put in detention a person who avoids or hampers the preparation of return (art. 15(1)(b)). It is not supposed to cover cases of the risk of absconding since this is addressed in a separate ground. The Directive does not, however, elucidate what acts would amount to hampering or avoiding the return; authorities thus enjoy a broad discretion to order detention. Secondly, the Directive allows extension of the length of detention from six to a maximum of eighteen months when the return proceedings last longer due to detainee’s lack of cooperation (art. 15(6)). Again, the lack of cooperation is not defined. Retributive elements are evident in these grounds – detention resembles a sanction to reprimand migrant’s behaviour that authorities do not desire.

Besides retribution, detention sanctioned by the Returns Directive may also amount to incapacitation. States are permitted to extend the initial six-month detention by one year where return proceedings last longer due to lack cooperation either by the detainee (as discussed above) or by the countries of destination (art. 15(6)). It is argued that if return is not possible, detention cannot be justified on account of facilitating such return. Prolonged detention without a realistic prospect of removal operates thus as a means to incapacitate non-citizens who the authorities presume to threaten public order. Often authorities tend to perceive persons without regular status or financial means as a potential threat to public order. The Directive thus gives states a tool to keep such persons locked up rather than release them.

Arguably, the EU immigration detention regime displays features of crimmigration.

It allows formally administrative pre-removal and asylum detention to be punitive in practice. Thus, while immigration detention sanctioned by EU directives may pursue objectives similar to those of criminal justice—retribution, deterrence, or incapacitation—detainees are not entitled to fair trail rights afforded to their criminal counterparts. Because of this selective application of processes that are normally associated with criminal law, crimmigration within EU law has the potential to render detainees more vulnerable while at the same time offering greater discretion to governments.

Izabella Majcher is a PhD candidate in international law at the Graduate Institute of International and Development Studies in Geneva, Switzerland. Her doctoral research focuses on the European Union law on irregular migration. Izabella is also a research assistant at the Global Detention Project, Global Migration Centre, in Geneva. She researches states’ laws, policies and practices addressing immigration detention.