The Pragmatism of the Court of Justice on the Detention of Irregular Migrants: Comment on Affum

Article by Giovanni Zacaroni in European Insight
18 March, 2017

Abstract: The recent Affum decision (judgment of 7 June 2016, case C-47/15) represents a new step forward in the case law of the Court of Justice on the detention of irregular migrants. The Court, departing from its previous case law in Achughbabian and El Dridi, adopts a rather pragmatic approach, preferring to stick to a procedural argument (to forbid detention in order to ensure a fast return procedure) rather than indulging in the assessment of the compliance of the detention with fundamental rights. This new approach seems to facilitate the cooperation between the EU level and national administrations. The Court seems, however, driven more by the need to secure the effectiveness of the return procedure rather than the rights of the individuals involved.

On migration issues, many courts try to “balance” the human rights of migrants with administrative efficiency, reducing the protection of foreigners against arbitrary detention, as compared to the standards applied to citizens. Is this a response to the strong stance of mainstream politicians using a populist migration agenda to stave off an outright nationalist populist victory? Are courts fearing for their own relevance in view of a strong democratic pushback against seemingly uncontrolled migration movements? In any case, it is not a good sign for the future.

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Giovanni Zaccaroni

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