Systematic deprivations of personal liberty of migrants reveal an escalating tension between the indisputable state prerogative to control and restrict aliens entry into and residence on its territory and the universal human right to personal liberty. The prevalence of immigration detention of aliens, who unlawfully enter or reside in the territory of a state, insinuates the incompatibility of the concept of state's territorial sovereignty with the alien's right to selfdetermination and personal freedom. Compulsive deprivations of liberty of illegal aliens for longer periods of time in migration centers or prisons are a reflection of the tightening anti-migration policy of the European Community, whose main focus is the punishment and deterrence of unwanted newcomers, which is why it has been established in the international arena as the notion of »crimmigration«. Automatic detention of foreigners with an irregular status has become a routine and regular practice of the member states of the European Union, which tend to pursue the aim of establishing an effective returns regime of illegal aliens at any cost. The latter has become an infamous justification of the Court of Justice of the European Union, who on the one hand has led an unwavering war on the phenomenon of »crimmigration« and without hesitation resctricted the competence of member states to criminalize illegal presence of foreigners on its territory, but has however simultaneously left many aspects of immigration detention to the discretion of national judges, thus offering boundless leeway to member states. Furthermore, the insufficient protection afforded by the Returns Directive at the EU level has neither been exceeded by the Convention protection of the right to personal liberty, since the European Court of Human Rights takes an extremely reserved stance in connection to the interferences into personal liberty of aliens, which is mainly reflected in the rejection of the necessity and proportionality test while assesing whether the interference has been arbitrary and manifestly unfounded. It puts foreigners in a legally exposed position with the rationale that all noncitizens without the requisite authorization to enter into the territory of the state, are rendered unlawful, which is why their liberty may be deprived. Thus, the complementary jurisdiction of many regional mechanisms in the field of migration only creates an illusory sense of protection of migrants rights, who on the contrary oftentimes linger in legal limbo without fundamental human and social rights, without access to health services and means for a dignified existence and without effective legal remedies and judicial protection, hence leaving them in a blind spot.
|
