Redial Blog

The views expressed on this blog are solely those of the authors and may not, under any circumstances, be regarded as representing an official position of either Migration Policy Centre or the European Commission.

The return procedure in Italy: not a good balance between effective judicial protection and effectiveness of enforcement of return decisions

Pier Luigi di Bari Judge, Tribunal of Modena, Italy In this short presentation, I have tried to select the issues concerning the Italian system which may be of more general interest in relation to the actual implementation of the Return Read More …

Suspensive Effect of Appeals before Administrative Courts of the Republic of Lithuania in Removal Cases

Dr. Jur. Irmantas Jarukaitis, Vice-president of the Supreme Administrative Court of Lithuania; Agnė Kalinauskaitė, LL. M., Legal Consultant of the Legal Analysis and Information Department of the Supreme Administrative Court of Lithuania Removal of foreigners from the territory of the Read More …

Challenges in the legal and judicial implementation of the Return Directive in Belgium – the Right to be Heard : Real or Formal?

Sarah Janssens Lawyer at the Brussels bar association This presentation gives an overview of the national impact of the European case-law concerning the right to be heard. This concept was defined by the Court of Justice as the right that Read More …

Detention of (unaccompanied) minors: not at all or under certain conditions?

This blog post focuses on detention of (unaccompanied) minors on the basis of Article 17 of the Return Directive. Read More …

Legal remedies for violations of the rights of returnees and suspensive effect of appeals under the German Residence Act and jurisprudence

REDIAL Conference paper by Judge Harald Dörig, from the German Supreme Administrative Court. Read More …

J.N. v Staatssecretaris voor Veiligheid en Justitie: The ECJ on the Detention of Asylum Seekers for the Protection of Public Order

On 15 February 2016, the ECJ (Grand Chamber) ruled in case J.N. v. Staatssecretaris voor Veiligheid en Justitie (C-601/15) that EU law allows asylum seekers to be detained when the protection of national security or public order so requires. It also stressed that the introduction of a fresh asylum application by a person who is subject to a return decision does not render that decision inoperative.
Here is therefore a comment provided on the legal issues raised by this judgment with regard to the complex interaction between asylum and migration law when it comes to administrative detention. Question addressed here is how to reconcile the right to liberty and security as enshrined by Human Rights law with States’ considerations of national public order and security when managing migration flows?
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Zh. and O.: EU law and the Constitutionalisation of the Exercise of Migration Control

In Zh. and O., the Court was called upon to clarify the meaning of the concept of a risk to public policy in Article 7(4) of the Return Directive – the provision allowing states to derogate from their obligation to provide third-country nationals with a period for voluntary departure. In its interpretation, the Court draws directly upon the way in which it has consistently interpreted that concept in its case law with regard to limitations on the free movement rights of EU citizens. The judgment does not only bring to light shortcomings in Dutch policy with regard to the refusal of a period for voluntary departure when issuing return decisions, but it also has implications for the way in which entry bans are applied. The judgment in Zh. and O. is significant because it shows that increasing regulation of human mobility through EU law inevitably results in the constitutionalisation of the exercise of migration control.
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AG’s Opinion in Celaj: Lost in “Crimmigration”?

“Imprisoning a person ultimately delays a future return”, states Advocate General Spunzar in his opinion delivered on 28 April 2015 in Skerdjan Celaj (C-290/14). In his view, a return procedure persists as long as the TCN concerned resides illegally on a Member State’s territory, with no distinction as to how many times he attempts to enter, including in breach of entry-bans imposed by the Return Directive. In the present contribution, the authors intended to deeper analyse the AG’s reasoning in light of the previous ECJ’s case-law, somehow lacking of clarity when addressing the issue of criminalisation of irregular immigration. They also question the assumption made by the AG that national imprisonment would be, in absolute terms, precluded by the directive, all along the return ‘procedure’. Read More …

A fine or removal? The impact of the ECJ’s Zaizoune Judgment on the Spanish Doctrine

Last April, on a request from the Tribunal Superior de Justicia de la Comunidad Autónoma del País Vasco (Spain), the ECJ has ruled that a national legislation providing, in the event of illegal staying, for either a fine or removal, depending on the circumstances, was incompatible with the Return Directive, since the two measures are mutually exclusive. This contribution intends to better explain the traditional legal system applicable in Spain as regards financial penalties imposed to irregular migrants and to assess the impact of the present European Case-law on the national Jurisprudential doctrine, favouring fines over removal in the absence of specific ‘aggravating’ circumstances. Read More …