People in Between: The criminalization of migration detention in Europe

Abstract: There is a heated debate going on concerning the use of migration detention in Europe. In the wake of the increased number of migrants trying to enter or having become irregular while residing in Europe, states seem to rely on the practice of migration detention in such a degree, that it has become an integral part of their national and European Union policies. This happens, despite the fact that a number of European and national legal instruments describe it as a measure of last resort. The widespread use of this practice has led to the adoption of a number of controversial measures that have been heavily criticized. This paper explores a number of these measures implemented by a large number of EU states and takes a closer look at the case of Greece. It claims that despite its administrative nature, migration detention in its current form resembles to criminal detention. It proposes that this conflict between how migration detention is implemented and how it should be implemented exists because of the intersection of criminal and migration law. In particular, it examines how migration law has absorbed some features of the criminal law. It explores different aspects of this intersection between these two bodies of law and sets the background in order to understand how this merge became possible. The main focus is allocated on how migration detention has been criminalized meaning how criminal law has affected this type of detention by changing its purposes thus leading to the adoption of a number of measures that resemble to criminal detention. Finally, the paper examines the implications that criminalized detention has on the human rights of the migrants. It claims that this phenomenon has created confusion as to which rules regulate detention and enhances the human rights violations of the migrant detainees thus leading to their discriminatory treatment. In the case of Greece, it further argues that this discriminatory treatment has acquired an institutional character.