Judge-made law and detention of irregular migrants in Europe : a comparative study of the jurisprudences of the Italian Constitutional Court, the Court of Justice of the European Union and the European Court of Human Rights

Abstract

The aim of this thesis is to examine the impact of the judge on the content of the laws and criminal policies regarding irregular immigration. More specifically, this work is based on the jurisprudence regarding the administrative and criminal sanctions applicable to the irregular migrant for the sole motive of his/her irregular administrative status. By studying a set of selected cases from the Italian Constitutional Court (and to a lesser extent of the Justice of the Peace), the Court of Justice of the European Union and the European Court of Human Rights on these issues, the objective is twofold. Primarily, it seeks to measure whether the judges, at all levels, impinge on the shaping of the law and affect the legal treatment of the irregular migrant. And secondly, the study assesses the effect of their interventions on the protection of the fundamental rights of irregular migrants. The findings of this research surprisingly show two things. First, the judges have indeed found themselves at the crossroads of diverging interests. This position was used by the national Constitutional judges of Italy as a leverage to strongly lean on the legislator and curb the tendency towards an ever-increasing criminalization of irregular immigrants. Whereas the supra-national judges have shown more restraint. Concerning the Court of Justice, the protection afforded to irregular migrants has often been the collateral and paradoxical result of a legal regime essentially geared towards their expulsion. While the European Court of Human Rights’ jurisprudence forms a complex regime of protective elements and surprising exceptions justified by the States’ sovereignty regarding the control of their territory. Second, the judges’ interventions have generally lead to more protection of the irregular migrants’ fundamental rights than what national or supranational norms originally granted them.