The European returns policy and the re-shaping of the national: reflections on the role of domestic courts

Abstract

This article highlights some of the key issues relating to the protection of irregular migrants facing expulsion, using the example of Italian practices and rules. The article examines the current debate on the applicability of European immigration standards to return procedures, focusing on the entry into force of the Return Directive. The analysis first addresses the recent changes in the regime for the protection of migrants brought about by the adoption of new national legal provisions to check the conformity of Italian legislation with the Directive, seeking to identify the challenges and the practical problems that Italy is facing in transposing this instrument to the national level. The analysis will aim to identify jurisprudence issuing from regional and national bodies, which is advancing the standards of the treatment of unauthorised migrants in the context of hostile domestic law and political rhetoric, applying the doctrine of “direct effect” of European Union law. The article also explores the role of jurisprudence in providing effective protection of the fundamental rights of irregular migrants once present in a host State, limiting the absolute discretion of States. It concludes by looking at some features of the European harmonisation of return policies to find out whether or not this issue should be dealt with at the European level for a human rights-based approach.