The criminalisation of irregular migration under the Proposal for an EU Return Regulation. Wanted: Detained or returned

Insofar as immigration detention should not perform functions traditionally associated with criminal sanctions, the utilisation of migration law within the criminal justice system poses several challenges. Compared with the standards set by Directive 2008/115, the Proposal for an EU Return Regulation expands both the grounds for detention and the maximum permitted duration of this measure. In doing so, the European Commission not only risks making personal freedom the exception rather than the rule, but it also sidelines the Luxembourg case law and the recommendations of civil society actors. Furthermore, despite the fact that pre-removal detention should be carried out in facilities specifically designated for that purpose rather than in prisons, the Proposal permits irregularly staying third-country nationals to be detained in ordinary prisons without consistently guaranteeing their full separation from ordinary prisoners. By examining the proposed Regulation in the light of the principles developed by the CJEU and the ECtHR, this paper argues that, more than a decade after the humanitarian crisis faced by Europe, the Union appears to have drawn few lessons: migration continues to be perceived not as a human reality to be governed through rights, but as a threat to be neutralised through the instruments of criminal law.