A warning from the EU

Last week the EU's Court of Justice struck down a key piece of legislation passed by the Italian government in 2009 that bolstered the hard-line immigration policies Prime Minister Silvio Berlusconi has pledged to implement while in office. The European court ruled that jailing migrants contradicts an EU directive whose main objective is "to set up an effective policy to drive out and repatriate third-country nationals whose stay [in EU territory) is irregular, while respecting their fundamental rights."

Under Italy's 2009 law, migrants who enter Italy illegally and refuse to leave face a prison sentence of one to four years and fines of up to 10,000 euros.

Bowing to nationalist sentiments, Italian Justice Minister Roberto Maroni said he would consider appealing the decision, saying that other EU members had introduced similar legislation but had not faced censure.

The court's decision comes after a spat between France and Italy over the free movement of persons within the EU that saw the French authorities close down a main crossing point between the two countries after Italy issued thousands of Tunisians with temporary permits instead of expulsion orders and locking them up, effectively passing the problem on to France. With such populist responses to the issue of immigration, governments like that of Berlusconi are merely trying to avoid the obligations of a democracy based on the rule of law.

Toughening Europe's immigration policies has never been successful in reducing the number of people who want to enter the bloc. The only result has been to put a series of concerns at the top of the EU agenda that up until now have been the exclusive concern of the far right. As has been seen, such parties are on the rise throughout much of Europe. In reality, the migrant flows that such laws have sought to stem have actually been reduced by the economic crisis. In short, the monster created to fight immigration is stronger than ever, while immigration itself has fallen.

At a time when the EU faces a crisis within its institutions, and is largely leaderless, the Court of Justice's decision should be seen as a severe warning regarding the risks of setting a political agenda based on the populist approach of some governments in recent years. As long as the economic boom continued, the priority was not addressing immigration, but legal issues related to employment. Now that the situation has changed, it is employment itself, and not just related legal issues, which appears to be the main problem, both for Europeans and for workers from further afield.