Judicial Interactions on the European Return Directive: Shifting Borders and the Constitutionalisation of Irregular Migration Governance

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Table of Contents: I. Introduction. – II. “Immigration courts as border zones”: courts and judicial interactions in the field of irregular migration. – III. ”Is it a crime to be a foreigner?”: courts reconfiguring the borders between criminal law and the return directive. – IV. Detention as a tool to “reconfigure and relocate national borders”: judicial interactions turning the liberty of irregular migrants into a human right. – V. “Speaking rights to power”: judicial interactions on the legal and social exclusion of irregular immigrants. – VI. Conclusions: Future challenges to judicial interactions.

Abstract: This Article examines the dynamics between shifting borders – the border as a legal construct instead of a geographical barrier – and law by analysing the role of courts and judicial interactions in the implementation of the Return Directive in Europe. We argue that legislation that states may have introduced primarily to shift and reinvigorate their borders nevertheless holds a promise of opening up more, instead of less, space for legal claims for migrant justice, especially if such legislation is applied by judges across different legal orders. We look at the impact of judicial interactions by European and domestic courts on the Return Directive in three areas in which states have attempted to shift their borders for maintaining irregular migration within exclusive domestic competences: the merging of criminal justice and immigration policing; detention as immigration enforcement; and the legal and social exclusion of irregular migrants. We show that in all these fields, judicial interactions have set into motion a process of incremental constitutionalisation of irregular migration in Europe in two ways. First, such interactions have resulted in extended judicial review over a legal field which has traditionally been considered an exceptional branch of law under the purview of executive control. Secondly, they have allowed irregularly staying migrants, as a group largely excluded from the legal and political processes that characterise modern constitutionalism, to have their interests translated into rights that can be litigated and enforced. By focusing on judicial interactions regarding immigration enforcement, this Article fills a gap in contemporary research on the role of courts in immigration policy which has so far predominantly analysed adjudication of immigration status.

Keywords: Return directive – judicial interaction – borders – national courts– Court of Justice of the European Union – European Court of Human Rights.

European Papers, Vol. 7, 2022, No 1, pp. 127-149
2499-8249 - doi: 10.15166/2499-8249/551

* Associate professor EU Law and Public International Law, VU Amsterdam, g.n.cornelisse@vu.nl.
** Director of the Centre for Migration Studies, Masaryk University, madalina_bianca.moraru@law.muni.cz.


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