(In)Effectiveness of Criminal Sanctions as Regards Irregular Immigrants

The article discusses whether criminal sanctions are the more effective tool to deal with breaches of national substantive immigration rules regulating the conditions of entry and stay of third-country nationals and to achieve the objectives of the EU migration policy in relation to irregularly entering or staying third-country nationals. To that purpose, the article first defines the concept of effectiveness and scrutinises the compatibility of national laws criminalising the irregular entry and stay of third-country nationals with EU law and then examines whether the use of criminal law to sanction irregular migrants is justified in light of the main theories of punishment and of the general principles of criminal law: deterrence theory, social stigma argument, harm principle, desert theory and proportionality of punishment. These theories and principles governing EU criminal law have been selected because of their significance in the development of present criminal justice policies at the EU level in the field of irregular migration. Drawing on the relevant criminal and criminological research, as well as on the literature on enforcement, and considering that increasing punitive measures has frequently failed to reduce recidivism, the article therefore seeks to answer the question whether criminal sanctions are the more effective tool to achieve the objectives of the EU migration policy in relation to irregularly entering or staying thirdcountry nationals.