Between administrative and criminal law: An overview of criminalisation of migration across the EU cla_team June 14, 2024

Between administrative and criminal law: An overview of criminalisation of migration across the EU

This briefing discusses the conflation of criminal and administrative law in the context of migration. These two branches of law serve different purposes, but this distinction is blurred when it comes to migration policy, where on the one hand, migration law, which should be administrative, is used to pursue criminal law objectives, and on the other hand, states increasingly use criminal law as a migration enforcement instrument. This briefing explores these growing trends along three lines of research, taking into account policy and legislative developments at the EU level and in European countries, with a focus on Bulgaria, Cyprus, France, Greece, Hungary, Italy, Poland, Spain and the United Kingdom, and it led by PICUM – Platform for International Cooperation on Undocumented Migrants – for Porticus in April 2023 and edited for publication in April 2024

The first line of research focuses on the detention of migrants for reasons related to ‘national security’ or ‘public order’. In recent years, there has been a convergence towards accepting the detention of migrants on these grounds at the EU level, as exemplified by the Commission’s 2018 proposal to amend the Return Directive. At the national level, interviews have shown that in Bulgaria, Cyprus, Greece, Hungary and Poland, it is particularly difficult to challenge detention decisions related to national security, because of a lack of procedural safeguards and limited access to classified information. In Italy and France, recent laws and proposals have prioritised deportation and detention for people considered to be a threat to public order or public security, even though the concept is not clearly circumscribed. From this perspective, immigration detention is used to pursue criminal law objectives. This has the effect of creating double standards in terms of access to fair trial guarantees, depending on the nationality and the migration status of the suspect, and of fostering harmful narratives which equate migrants with criminals

The second line of research focuses on the use of criminal law to manage migration, with the purpose of preventing and deterring people’s mobility. Alongside the criminalisation of irregular entry or stay, there has been a growing role of smugglingrelated charges targeting both civil society actors and migrants. This trend is particularly evident in Greece, Italy and the UK, where criminal proceedings against boat drivers have sharply increased in recent years, resulting in the systemic detention of migrants, their exclusion from asylum procedures, and violations of procedural safeguards in administrative proceedings. This approach ignores the harms that people suffer as a direct consequence of countersmuggling policies and that smuggling is a reaction to border control rather than a cause of migration itself.

The third line of research focuses on the use of digital technologies and artificial intelligence (AI) for migration control and surveillance purposes. The collection and processing of migrants’ personal data by national authorities and EU databases are central to this trend, with data used not only for administrative purposes but also for crime control operations and prevention. At the EU level, recent legislative proposals include several elements that will pave the way for an increased use of AI and border technologies in the context of migration enforcement. At the national level, at least 15 European countries have implemented highly intrusive facial and biometric recognition systems for mass surveillance, and these systems are often used to reinforce existing border controls and limit migrants’ freedom of movement.

By highlighting emerging trends and specific case studies, this briefing aims at exploring different issues related to the conflation of administrative and criminal law, uncovering their impact on migrants’ human rights and suggesting further lines of research