Detention of Irregular Migrants and the European Public Order

Nicholas Hatzis 

University of Oxford - Faculty of Law; City Law School
July 1, 2013

European Law Review 259 (2013, Forthcoming) 
Oxford Legal Studies Research Paper No. 74/2013 
Abstract:      
This article examines the regulation of pre-deportation detention of irregular migrants in the European Union. It begins with a brief discussion of the relevant legislative framework. It continues with an analysis of the case law on detention and exploration of the Court of Justice’s argumentative strategy of focusing on the need to safeguard the useful effect of EU law. Then, in the third part, it argues that there are two aspects of the Union’s public order which are particularly important for understanding that case law. The first is the dominance of security in the Area of Freedom, Security and Justice, which led the Court to avoid making a broad ruling on the fundamental rights irregular migrants enjoy in the territory of the Union. Thus, the main background constitutional question – whether such migrants are within Europe’s constitution – remained unanswered. After looking at how the United States Supreme Court has dealt with this question in relation to the federal Constitution, and the development of the “plenary power doctrine”, I argue that the Court of Justice’s general approach to the outer limits of European constitutional space indicates that it might be willing to open it up to irregular migrants in the future. The second aspect is the multiplicity of sources of human rights protection in Europe, which means that national law, the European Convention on Human Rights and EU law can all be relied on to establish rights for migrants. I argue that, given the very restrictive jurisprudence of the European Court of Human Rights on immigration detention, the Court of Justice should develop an independent interpretation of the relevant primary and secondary EU law, and that in doing so it can take a step towards becoming a fully-fledged human rights court.

Number of Pages in PDF File: 35

Keywords: Immigration law, constitutional law, EU law, immigration detention, deportation, irregular migrants, plenary power doctrine, Area of Freedom Security and Justice, Charter of Fundamental Rights, European Convention on Human Rights

Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2297435