El Dridi upside down : a case of legal mobilization for undocumented migrants' rights in Italy

Abstract

During the first four months of 2011 Italian courts referred an extraordinary number of requests for preliminary ruling to the Court of Justice of the European Union concerning the interpretation of the Return Directive. The Court ruled on the first of these references on 28 April 2011, when decided on the case of El Dridi. This judgment found Italian criminal provisions on undocumented migrants inconsistent with European standards and pressured the Italian government to reform the Italian Alien Law. To be sure, there are studies on the case of El Dridi and its impact on the protection of undocumented migrants' rights. However, legal scholarship has given scant attention to the reasons that may explain the emergence of the many concurrent preliminary references. Moreover, given the preferred focus on the role of the Court of Justice in studies on preliminary rulings, the societal roots of supranational litigation have been largely overlooked. With the aim of filling these gaps, this paper investigates into factors that led several Italian courts to request a decision from the Court of Justice and argues that this cannot be explained with a centralized and institutional focus. Instead, what is needed is a bottom-up approach that investigates what happened at the national level, looks at the political situation at that time and at the social actors involved. The paper argues that the preliminary references of 2011 are an example of supranational legal mobilization: a network of civil society actors, judges, legal scholars and lawyers used the Court of Justice to achieve a change within the national migration legal framework. In so doing, the paper provides new insights into the political role of litigation before the Court of Justice and in the field of European migration law.