EU Immigration and Asylum Law and Policy Droit et Politique de l'Immigration et de l'Asile de l'UE

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By Dr. Jasper Krommendijk and Kris van der Pas, Radboud University

In recent years, the use of strategic litigation by NGOs has grown, especially in migration law.  Strategic litigation can be defined as the use of judicial procedures in order to create change beyond the individual interest or individual case. Aside from initiating and being a direct party to legal proceedings, one could also think of third-party interventions as a more subtle form of strategic litigation. Intervention can be compared to the (common law) practice of amicus curiae, Latin for ‘friend of the court’. Although certain differences exist between amicus curiae and third-party interventions in different legal systems, their purpose in legal proceedings is largely similar.

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Dr Maja Grundler, Royal Holloway University of London and Professor Elspeth Guild, Queen Mary University of London

A recent contribution to this blog discussed the complex legal picture emerging in relation to the EU closing its borders to Russian nationals. While that contribution touched on fundamental rights issues, specifically the right to seek asylum, there are many other human rights provisions which are relevant when discussing the closing of borders and the rights of those who seek to cross them. EU Member States must indeed respect the prohibition of collective expulsion and refoulement, the prohibition of forced labour and human trafficking, as well as the right to liberty, the right to family life, and the right to non-discrimination.

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By Daniel Thym, Director of the Research Centre Immigration & Asylum Law, University of Konstanz, Germany

The ongoing war of aggression against Ukraine is such a turning point, which requires decisive action and political leadership. Changes of direction and a certain willingness to improvise are virtues in such scenarios, while respect for legal rules will not always be a top priority. Indeed, critics were swift in concluding that ‘there is no legal way under current EU law’ for a visa ban and border closure. It seems as legal rules are brushed aside in the name of superior political motives.

This blogpost will demonstrate that the legal picture is more ambiguous. Neither the border closure, nor the visa ban are based on formal decisions taken at the EU level. That is why it presents a formidable challenge to justify them on the basis of legislation adopted years ago. However, the existing legal framework gives States some flexibility and a hardly visible adjustment by the Commission and the Finnish government was a smart move. All the rest depends on the administrative practices of the Baltic States, Finland, and Poland, which may disrespect the procedural subtleties of EU migration law, nonetheless.

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by Jean-Baptiste Farcy, Attorney at the Brussels Bar (Altea) and Teaching Assistant at the University of Gent.

The rationale behind an EU-wide labour immigration policy is well-known: Europe has an ageing population and labour market shortages are growing in some sectors of the economy where the local workforce cannot meet the demand of employers. According to the European Commission, activating and upskilling the domestic workforce would not be sufficient to address existing and forecasted shortages. Attracting and retaining skills and talents would therefore foster the competitiveness of the EU economy. Additionally, legal pathways would improve the overall migration management and may, to some extent, reduce irregular migration.

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By Delphine Rodrik, legal advisor at the European Center for Constitutional and Human Rights.

24 June 2022 revealed, yet again, the devastating consequences of European border control when at least 27 migrants and asylum-seekers lost their lives attempting to enter Melilla, one of two Spanish enclaves bordering Morocco. Video footage from that day documented Spanish officers handing back those who entered directly to Moroccan officers, as well as Moroccan border guards beating individuals who lay weak or lifeless on the Moroccan side of the border fence. Many others remain missing nearly three months after the tragedy. Yet placing the emphasis on state security, the Spanish Prime Minister framed the events as “a violent attack on the territorial integrity of the country,” and government officials pointed to the European Court of Human Rights’ (ECtHR) 2020 decision in ND and NT v. Spain as a justification of its so-called “rechazos en frontera” (or border rejections) to Morocco. 

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By Tesseltje de Lange, Professor of European Migration Law, Director of the Centre for Migration Law, Radboud University Nijmegen.

In its communication of 27 April 2022, the European Commission makes a political and economic case for a sustainable and common approach to labour migration. Indeed, most EU member states face ageing populations who require care, and post-covid-19 labour shortages are on the rise jeopardising the green transition. One of the legislative proposals tabled by the European Commission is a recast of the Single Permit Directive. Although the European Commission had contemplated conditions for admission for low- and medium-skilled workers in the new pact, this idea was abandoned. Admission conditions of low and medium-skilled workers are sufficiently addressed by national legislation, is the feedback the Commission received from the Member States.

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