The Effectiveness of the EU Return Policy at All Costs: The Punitive Use of Administrative Pre-removal Detention

Abstract

This chapter argues that despite its formal administrative label, pre-removal detention regulated under the European Union (EU) Directive 2008/115/EC (hereafter Returns Directive) is not limited to non-punitive purposes. In the context of the EU’s current measures to strengthen the effectiveness of the return policy, the punitive potential of detention-relation provisions of the Directive became flagrant. The underlying rationale behind the current interpretation of the Directive is a policy of deterrence, retribution, and incapacitation. While immigration detention under EU law may be in practice punitive in nature, the protective features that accompany criminal processes are not always assured within immigration procedures, because of their administrative classification. This gap—the crimmigration phenomenon—allows states to benefit from the broader discretion typical of administrative proceedings and exacerbates migrants’ vulnerability. As the chapter concludes, to tackle the crimmigration phenomenon within the EU pre-removal detention regime, arguments should focus on the prohibition of arbitrary detention and the right to an effective remedy, benefiting every detainee.

The views expressed in this chapter are those of the author and do not necessarily reflect the position of ECRE. This chapter had been finalised in August 2018, hence before the European Commission proposed a recast of the Returns Directive which includes issues relevant to the discussion in the chapter.