Negotiating detention within the European Union: redefining friends and enemies

Abstract

Introduction: open borders and the meaning of ‘security’ The European Union (EU) is the most advanced treaty-based international organization in the world. It has gone furthest along the route towards integration between sovereign states, falling short of actual merger into a federal nation. The principles of direct effect and supremacy of the law evolved by the European Court of Justice (ECJ) have given European law special status going beyond ‘ordinary’ treaty law. Removing barriers to the free movement of persons within the EU has been a central legal and political project. EU nationals’ rights to move have cut into Member State discretion over security and migration. This has arisen largely from their political status as ‘friends’ (‘EU citizens’, even) no longer subject to arbitrary prerogative measures, but rather the bearers of migration rights protected by legal reason and principle. Loss of ‘sovereignty’ over migration is a legal truth for Member States, not just a practical reality. Administrative detention of foreigners is at first sight anathema in the world's grandest open-borders project. Nevertheless, the same concerns found in national politics over unauthorized migration have been translated up to EU level. The ‘security’ agenda has been directed outwards to the EU's external borders and inwards towards unauthozised non-EU nationals detected internally. Whilst unthinkable for EU citizens, broad detention powers over asylum seekers and unauthorized migrants have been endorsed. Through undermining internal border controls, the EU has both created new ‘friends’ and constructed new ‘enemies’ against whom controls have been enhanced.