Journal article

Publication details

The Charter, detention and possible regularization of migrants in an irregular situation under the Returs Directive: Mahdi.
in journal: Common Market Law Review

Volume number: 52
Issue number: 5
Release year: 2015
Page range: 1361-1378

Author(s) details

Diego Acosta Arcarazo

Publication description

Returns Directive, European Court of Justice, migration policy, Detention.
Directive 2008/115 lays down procedures for returning migrants who find themselves in an irregular situation. This legislation, better known as the Returns Directive, is possibly the most controversial one in the area of migration policy. Indeed, the Directive has been the subject of constant litigation since its entry into force and several cases, including the one discussed here, have been decided under the urgent procedure. At the time of writing there were three other references for a preliminary ruling pending before the ECJ, and Advocate General Bot and the Court had also referred to the Directive in another case. These references have been received from national Courts in eight Member States, revealing not only complications in interpreting the Directive but also wrongful implementation by some of them. The judgment focuses on the interpretation of Article 15, concerning on detention. It also briefly tackles Article 6(4) which authorizes Member States to grant a residence permit to migrants in an irregular situation. The Court's interpretation of both articles will be discussed by reference to the EU Charter of Fundamental Rights (EUCFR) since this is the first case where the Court effectively used the Charter to enhance the rights of the individual concerned.