Trapped Between Administrative Detention, Imprisonment, and Freedom-in-Limbo

Abstract

Recent decades have witnessed the increasing criminalisation of irregular migration in the European Union (EU). A notable move in many EU states has been the transformation of illegal entry and stay of third-country nationals (TCNs) into a crime, involving possible imprisonment. The Court of Justice of the EU (CJEU) paved the way for the partial decriminalisation of illegal stay in the 2011 El Dridi and Achughbabian rulings. In these rulings, the CJEU interpreted the EU Directive on the return of illegally staying TCNs (Return Directive) as prohibiting member state legislation which provides for a sentence of imprisonment to be imposed on irregular migrants on the sole ground of their illegal stay. Irregular migrants may only be imprisoned if they have been subjected to every stage of a return procedure and if they have no justified ground for non-return. Academic focus has mainly been on the positive ramifications of these rulings for irregular migrants. While the two rulings laudably restricted member states’ ability to imprison TCNs for the offence of illegal stay, these rulings also shined a spotlight on an already very vulnerable category of irregular migrants in many EU states. In this chapter, I offer to take a closer and more specific look at the residual category of irregular migrants that the CJEU singled out as permissible targets for imprisonment. I examine who makes up this residual category of irregular migrants, the multiple forms of exclusion that they experience in certain member states, the impact of the CJEU rulings on their exclusionary plight, as well as the functions of this plight.