The Scope of the Return Directive: How Much Space Is Left for National (Criminal) Procedural Law on Irregular Migration?

Abstract

This chapter argues that judicial dialogue on the scope of the Return Directive has resulted in an ever more dense covering by EU law of the diverse national procedural practices applied to third-country nationals who are regarded as illegally staying by the Member States. Some of these rulings, for example those in Gnandi and K.A. thus exemplify an intricate legal configuration of diverse, overlapping and intersecting legal regimes, in which slowly and surely, little decision-making power of administrative authorities is solely regulated by national law. An increase in legal questions potentially covered by EU law also transpires from cases brought before the Court of Justice in which Member States have resorted to their criminal law to ‘regulate’ irregular migration. In this particular area we see that previous rulings regarding the delimitation of EU law and national law by the Court of Justice have spurred new preliminary questions, which – no matter how technical the court keeps its approach - will inevitably draw into the sphere of EU law questions that were previously reserved for national administrative, criminal or constitutional courts. This dynamic is illustrated by taking a close look at the case that was recently referred to the Court of Justice by the Dutch Supreme Court, regarding the compatibility of Dutch criminal law on irregularly staying third-country nationals with EU law. I argue that the question referred to the Court can only be answered by situating it within the larger context of the Charter, and principles of criminal procedural law protected in the constitutional traditions of the Member States and by the ECHR, most notably legality.