Law and Judicial Dialogue on the Return of Irregular Migrants from the European Union
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LAW AND JUDICIAL DIALOGUE ON THE RETURN OF IRREGULAR MIGRANTS FROM THE EUROPEAN UNION Th is volume examines the implementation of the Return Directive from the perspective of judicial dialogue. While the role of judges has been widely addressed in European asylum law and EU law more generally, their role in EU return policy has hitherto remained underexplored. Th is volume addresses the interaction and dialogue between domestic judiciaries and European courts in the implementa- tion of European return policy. Th e book brings together leading authors from various backgrounds, including legal scholars, judges and practitioners. Th is allows the collection to off er theoretical and practical perspectives on important questions regarding the regulation of irregular migration in Europe, such as: what constitutes inadequate implementation of the Directive and under which condi- tions can judicial dialogue solve it? How can judges ensure that the right balance is struck between eff ective return procedures and fundamental rights? Why do we see diff erent patterns of judicial dialogue in the Member States when it comes to particular questions of return policy, for example regarding the use of detention? Th ese questions are more timely than ever given the shift ing public discourse on immigration and the growing political backlash against immigration courts. Th is book will be essential reading for all scholars and practitioners in the fi elds of immigration law and policy, EU law and public law. Volume 99 in the Series Modern Studies in European Law Modern Studies in European Law Recent titles in this series: Illegally Staying in the EU: An Analysis of Illegality in EU Migration Law Benedita Menezes Queiroz Social Legitimacy in the Internal Market: A Dialogue of Mutual Responsiveness Jotte Mulder Th e EU Better Regulation Agenda: A Critical Assessment Edited by Sacha Garben and Inge Govaere Administrative Regulation Beyond the Non-Delegation Doctrine: A Study on EU Agencies Marta Simoncini Th e Interface Between EU and International Law: Contemporary Refl ections Edited by Inge Govaere and Sacha Garben Th e Rise and Decline of Fundamental Rights in EU Citizenship Adrienne Yong Th e Court of Justice and European Criminal Law: Leading Cases in a Contextual Analysis Edited by Valsamis Mitsilegas, Alberto di Martino and Leandro Mancano Th e EU as a Global Regulator for Environmental Protection: A Legitimacy Perspective Ioanna Hadjiyianni Citizenship, Crime and Community in the European Union Stephen Coutts Critical Refl ections on Constitutional Democracy in the European Union Edited by Sacha Garben and Inge Govaere Constitutional Law of the EU ’ s Common Foreign and Security Policy: Competence and Institutions in External Relations Graham Butler Th e Juridifi cation of Individual Sanctions and the Politics of EU Law Eva Nanopoulos Sixty Years of European Integration and Global Power Shift s: Perceptions, Interactions and Lessons Edited by Julien Chaisse Fundamental Rights and Mutual Recognition in the Area of Freedom, Security and Justice: A Role for Proportionality ? Ermioni Xanthopoulou For the complete list of titles in this series, see ‘ Modern Studies in European Law ’ link at www.bloomsburyprofessional.com/uk/series/modern-studies-in-european-law Law and Judicial Dialogue on the Return of Irregular Migrants from the European Union Edited by Madalina Moraru Galina Cornelisse and P h i l i p p e D e B r u y c k e r HART PUBLISHING Bloomsbury Publishing Plc Kemp House , Chawley Park, Cumnor Hill, Oxford , OX2 9PH , UK 1385 Broadway, New York, NY 10018, USA HART PUBLISHING, the Hart/Stag logo, BLOOMSBURY and the Diana logo are trademarks of Bloomsbury Publishing Plc First published in Great Britain 2020 Copyright © The editors and contributors severally 2020 The editors and contributors have asserted their right under the Copyright, Designs and Patents Act 1988 to be identifi ed as Authors of this work. All rights reserved. No part of this publication may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording, or any information storage or retrieval system, without prior permission in writing from the publishers. While every care has been taken to ensure the accuracy of this work, no responsibility for loss or damage occasioned to any person acting or refraining from action as a result of any statement in it can be accepted by the authors, editors or publishers. All UK Government legislation and other public sector information used in the work is Crown Copyright © . All House of Lords and House of Commons information used in the work is Parliamentary Copyright © . This information is reused under the terms of the Open Government Licence v3.0 ( http://www.nationalarchives.gov.uk/doc/ open-government-licence/version/3 ) except where otherwise stated. All Eur-lex material used in the work is © European Union, http://eur-lex.europa.eu/ , 1998–2020. A catalogue record for this book is available from the British Library. Library of Congress Cataloging-in-Publication data Names: Moraru, Madalina, editor. | Cornelisse, Galina, editor. | Bruycker, Philippe de, editor. Title: Law and judicial dialogue on the return of irregular migrants from the European Union / edited by Madalina Moraru, Galina Cornelisse and Philippe De Bruycker. Description: Oxford ; New York : Hart, 2020. | Series: Modern studies in European law; volume 99 | Includes bibliographical references and index. Identifi ers: LCCN 2020011764 (print) | LCCN 2020011765 (ebook) | ISBN 9781509922956 (hardcover) | ISBN 9781509922963 (Epub) Subjects: LCSH: Illegal aliens—European Union countries. | Emigration and immigration law—European Union countries. | Asylum, Right of—European Union countries. | Repatriation—European Union countries. | European Parliament. Directive 2008/115/EC. Classifi cation: LCC KJE6050 .L39 2020 (print) | LCC KJE6050 (ebook) | DDC 342.2408/3—dc23 LC record available at https://lccn.loc.gov/2020011764 LC ebook record available at https://lccn.loc.gov/2020011765 ISBN: HB: 978-1-50992-295-6 ePDF: 978-1-50992-297-0 ePub: 978-1-50992-296-3 Typeset by Compuscript Ltd, Shannon Printed and bound in Great Britain by CPI Group (UK) Ltd, Croydon CR0 4YY To fi nd out more about our authors and books visit www.hartpublishing.co.uk . Here you will fi nd extracts, author information, details of forthcoming events and the option to sign up for our newsletters. ACKNOWLEDGEMENTS Th is book is the result of multiple collaborations, the roots of which developed within the ‘ Odysseus ’ Academic Network for Legal Studies on Immigration and Asylum. Th e fi rst of these was the CONTrol of DETENTION – CONTENTION project (2013 – 2014), funded by the European Return Fund, and implemented by the Migration Policy Centre (MPC) at the Robert Schumann Centre of Advanced Studies at the European University Institute in partnership with the Odysseus Network. A follow-up to CONTENTION was the Return directive DIALogue – REDIAL project (2014 – 2016). REDIAL was co-funded by the European Commission (DG Home) and coordinated by the Migration Policy Centre (MPC), in cooperation with the Centre for Judicial Cooperation (CJC) at the European University Institute and the Odysseus Network. Th e editors would like to express their gratitude to each of the national judges and academic experts who partici- pated in CONTENTION and REDIAL for providing the contributors to this book with invaluable research data in their respective country reports. Special thanks go to Sergio Mananashivili and G é raldine Renaudiere for their research and coordina- tion in these projects, and to Aur é lie Boursier for her assistance in practical matters. We would also like to acknowledge the Faculty of Law of Masaryk University who provided the funds for a workshop organised by Madalina Moraru in September 2018 at Masaryk University in the Czech Republic, which was crucial for ensur- ing consistency in methodology and content of the chapters. Special thanks are due to Brid Ni Graihnne for her insightful comments and constructive criticism on the chapters in Part I. Th e volume has benefi ted enormously from meticulous proof-reading by Paul McDonough, Justin McCann and by Ellen Lefl ey, which has been made fi nancially possible by Masaryk University, Odysseus Network and the VU Interdisciplinary Centre for European Studies (VICES). Last but not least, the editors would like to thank the contributors to this volume for their wonderful collaboration and their patience in addressing all the editors ’ suggestions. We would like to conclude with a brief note on the contribution of each of the editors. Th e idea for this book and its scientifi c design were fi rst conceived by Madalina Moraru. Galina Cornelisse and Madalina Moraru have subsequently worked in equal measure on editing individual chapters. Th is book would not have been possible without the academic input of Philippe De Bruycker, who has been at the very heart of both the CONTENTION and the REDIAL projects. CONTENTS Acknowledgements ........................................................................................................v List of Contributors ..................................................................................................... xi Prologue: Th e Genesis of the EU’s Return Policy..........................................................1 Fabian Lutz Introduction: Judicial Dialogue on the Return Directive – Catalyst for Changing Migration Governance? .................................................................17