Immigration detention, risk and human rights in the law of the European union. Lessons from the returns directive

Abstract

By focusing on the provisions of the Returns Directive and the case law of the Court of Justice in the field, this chapter will analyse the legal framework of immigration detention under the Returns Directive and flag up in particular measures and practices targeting migrants as high-risk individuals under EU law. The chapter will be based on a twofold categorisation of the relationship between immigration detention, the Returns Directive and EU law: firstly, the chapter will focus on the limits that the Returns Directive as such poses on the criminalisation of migration at national level; secondly, the chapter will address the limits placed by EU law on Member State enforcement action when implementing the Returns Directive. It will be demonstrated that the criminalisation focus of the Directive can be tempered when the latter is placed within the broader context of the general principles of European Union law.