Criminalisation of Irregular Migration in the EU: The El Dridi case

Migration is a very relevant topic to analyze, as many people move from one place to another. Migration that takes place outside the regulatory norms of the sending, transit and receiving countries is defined as irregular migration. This phenomenon is mainly tackled by crimmigration law, which is the intersection of criminal law and immigration law. First of all, it’s important to analyze the legislation targeting irregular immigration. Several European Union measures relate to this topic, such as the Council Framework Decision of 19 July 2002 on combating trafficking in human beings; the Council Directive 2002/90/EC defining the facilitation of unauthorized entry, transit and residence; the Council Framework Decision of 28 November 2002 on the strengthening of the penal framework to prevent the facilitation of unauthorized entry, transit and residence and the Directive 2009/52 of the European Parliament and of the Council providing for minimum standards on sanctions and measures against employers of illegally staying third-country nationals. One of the most important sources of law on this topic is Directive 2008/115 of the European Parliament and of the Council on common standards and procedures in Member States for returning illegally staying third-country nationals. Moreover, Italian legislation will be analyzed, especially Legislative Decree No 286/1998, which was amended by Law No 94/2009. Secondly, the focus will be on the El Dridi case. This case was decided by the European Court of Justice on 28 April 2011 and it concerned the application of Articles 15 and 16 of Directive 2008/115/EC in Italy. Mister El Dridi was an illegal migrant that came to Italy from Algeria and was sentenced by the Tribunale of Trento to one year of imprisonment, as he violated Article 14(5b) of Legislative Decree No 286/1998. However, the Appeals Court of Trento decided to refer the proceedings to the Court of Justice, asking whether Directive 2008/115 precluded criminal detention of irregular migrants. El Dridi can be considered as a landmark case. It was the starting point for other important cases, such as the Sagor case, the Celaj case and the Achughbabian case. Both the Sagor case and the Celaj case dealt with the enactment of Directive 2008/115 in Italy. The Achughbabian case referred to the contrast between Directive 2008/115 and French legislation on immigration. Furthermore, the El Dridi sentence condemned the use of criminal detention for irregular migrants in Italy. Therefore, the implementation of a system of administration detention for migrants has been developed in several EU countries. In particular, Italy has built a system of detention centers to hold migrants that will be repatriated (Centri di Permanenza per il Rimpatrio). Finally, the current situation of irregular migration in the European Union will be studied. To be specific, the three main routes that migrants use to reach Europe are the Western, the Central and the Eastern Mediterranean sea. The European Union and its Member States adopted several measures to control their arrivals, including partnership with African countries to limit the number of people able to leave Africa. Besides, the migration policy of the European Union will be researched.