The Detention of Migrants and the Debate on Criminality, Deceitful Descriptions and Underlying Guarantees

The need to protect migrants’ rights and freedoms, as enshrined in international principles and obligations, represents a red line that cannot be crossed in the management of migration by States, whether the law includes criminal penalties for violation of immigration law, or the law allows migrants, rather than being imprisoned, to be deported to the migrant’s country of origin. For the criminalist, the various measures for the detention of foreigners including immigration detention under T.U.I., provide the opportunity, in a system that trivializes the freedom of migrants, to find underlying guarantees, a challenge for redesigning the conventional and constitutional boundaries of the criminal law in relation to measures that are, to all intents and purposes, «hidden punishments», the preventive nature of which is, however, the inevitable criterion legitimizing criminal penalties.