Criminal law of immigration should be more conveniently defined
“criminal law of the irregular immigrant”, centred, as it appears essentially
focused on the criminalisation of mere subjective statuses, instead of behaviours
harming legal goods. In fact, behind the cover of an apparent balance of
the need for protection of human rights and the interest to the control of migration
flows, the criminalisation system in this sector appears greatly unbalanced
towards the punishment of socially dangerous types of authors. This is,
therefore, a model of criminal law very similar to the “enemy criminal law”.
The ratio inspiring the regulations has not changed even after its adaptation,
through law 2 August 2011, n. 129, to the obligations set by the European
Directive 2008/115/EC. Indeed, this has not determined an overall improvement
of the system as regards the compliance with the fundamental
principles of criminal law, but, on the contrary, it increased the “ancillary”
function of criminal law with regard to the administrative procedure of repatriation,
without eliminating the irrational aspects of the repressive choices of
the Italian legislato
