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The European Union's Response to Irregular Migration and the Problem of Criminalisation

The global approach to migration adopted by the European Union (EU) has been heavily criticised for its control-based measures which fail to incorporate a rights-based approach to migration governance. This paper considers how irregular migration has emerged as a policy priority at the supranational level and how this has resulted in the convergence of administrative and criminal legal regimes to deal with the migration ‘problem’. It considers the burgeoning case law of the Court of Justice of the European Union concerning the interpretation of the 2008 Returns Directive to examine the emerging link between EU law and the criminalisation of irregular migrants, a practice that has developed in line with the ‘crimmigration’ trend seen in other Western jurisdictions. By engaging with the relevant criminological and criminal law literature, this paper illustrates the practical and normative challenges which arise from this punitive approach to migration and the manner in which EU law is implicated in the criminalisation trend. In so doing, it concludes that the use of criminal law for immigration enforcement not only challenges key values which underpin EU law, but also constitutes a violation of liberal criminal law principles.