By Lilian Tsourdi, Departmental Lecturer in International Human Rights and Refugee Law, University of Oxford, Refugee Studies Centre

Practical cooperation has passed from the margins to the center of the migration and asylum policies. The operationalisation of the hotspot approach to migration management points to the emergence of an increasingly integrated European administration. We are witnessing patterns of joint implementation, with experts deployed by EU AFSJ agencies involved in search and rescue operations, the registration and referral stages, as well as in the processing of asylum claims. However, less attention has been dedicated to a parallel development, that of the expansion of the mandate of EU JHA agencies, and specifically the revamped FRONTEX and EASO agencies, to include monitoring-like functions, as well as functions which have the potential to steer policy implementation. This creates obvious tensions with the agencies’ internal governance structures which are largely intergovernmental. In this contribution, I first outline some of the novel (envisaged) functions, while critically assessing the challenge of independence. I then open the question whether social accountability arrangements could act as a counterbalance. This fully sets the scene for the debate between academics, agency and civil society representatives, set to take place on the 1st February as part of a dedicated workshop in the framework of the 2018 Odysseus Academic Network Policy conference. Continue reading »

By Iris Goldner Lang,* Jean Monnet Professor of EU Law and Holder of the UNESCO Chair on Free Movement of People, Migration and Inter-Cultural Dialogue, University of Zagreb.

Unlike “judicial activism”, the term “judicial passivism” has not been used in relation to EU law. In order to understand its meaning, it is necessary to briefly address and define the term “judicial activism”.

In EU law, judicial activism is most often understood as cases when the judiciary oversteps its judicial powers. The problem with this definition is that the delimitation of the CJEU’s powers often lies in the eye of the beholder. In other words, a case which one person might define as an example of the Court transgressing its powers (activism) might be seen by somebody else as an example of the Court staying within its boundaries, and the other way round. The perception of the existence or non-existence of judicial activism would partly depend on the ideology, beliefs and the background of the person you ask. It is also difficult, if not impossible, to tear the case away from its political and social setting. If we start from the premise that a judge is homo politicus and that he/she does not decide a case in a vacuum, every case is bound to carry a policy, social and political message. Continue reading »

By Philippe DE BRUYCKER, ULB & Odysseus Coordinator

The blog post below critically exposes the main themes of our next annual conference that will take place on Thursday 1 February 2018 in Brussels. This event is organised in the framework of the OMNIA Project with the support of the Jean Monnet Networks under the Erasmus+ Programme of the EU.

2017 has been marked by several rulings about crucial questions related to the European migration and asylum policies. The Court of Justice was called to rule on the most politically sensitive issues and delivered very controversial answers. The Odysseus Network decided therefore that its annual conference will focus on “Conflict and Compromise between Law and Politics in EU Migration and Asylum Policies”. The six workshops organised in the framework of the conference will tackle key legal, policy and operational challenges in relation with Court rulings around three streams. Continue reading »

By Paula García Andrade, Universidad Pontificia Comillas ICAI-ICADE (Madrid)

The decision in cases T-192/16, T-193/16 and T-257/16, NF, NG and NM v European Council) where the General Court considered that it is not competent to rule about the action for annulment brought by several asylum seekers against the EU-Turkey Statement of 18 March 2016 is well known. People often get shocked by the Court’s decision considering that it did not dare ruling on this burning issue when it affirmed that the European Council did not adopt the statement with Turkey. But there is much more than the question of the authorship behind that case raising the overall issue of the distribution of competences between the EU and its Member States (1) with the risk for the CJEU to contradict one of its fundamental decisions about the external powers of the EU in the ERTA case. This issue is also linked to the external representation of the EU, whose implications can also be examined in the current negotiations of the Global compacts on migration and on refugees under the auspices of the United Nations (2). Continue reading »

Par Francesco Maiani, Centre de droit comparé, européen et international (CDCEI), Université de Lausanne et Constantin Hruschka, Institut Max Planck de droit et de politiques sociales, Munich

Traduit de l’anglais par Mélanie Chevalley, Centre de droit comparé, européen et international (CDCEI), Université de Lausanne

  

Introduction

Un nouveau chapitre est en train de s’écrire dans l’histoire mouvementée du partage des responsabilités en matière d’asile entre les Etats membres. Le système Dublin, déclaré mort (précipitamment) au sommet de la crise de 2015, a été (tardivement) jugé inadéquat par une large palette d’acteurs, y compris par la Commission et le Parlement. Une réforme fondamentale a par conséquent été mise à l’agenda en urgence.

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By Jean-Yves Carlier, Université Catholique de Louvain (UCL) and Université de Liège; Luc Leboeuf, Max Planck Institute for Social Anthropology and University of Antwerp

Various international human rights instruments prohibit the collective expulsions of aliens, including art. 4 of Protocol n° 4 to the ECHR. The text of this provision is, however, quite vague. It merely states that ‘Collective expulsion of aliens is prohibited’. The ECtHR has consistently ruled in several cases like Conka that the prohibition of collective expulsions is infringed by ‘any measure compelling aliens, as a group, to leave a country, except where such a measure is taken on the basis of a reasonable and objective examination of the particular case of each individual alien of the group’. Collective expulsions take place when two constitutive elements are cumulatively met: the aliens are (1) expelled together with other aliens in a similar situation, (2) without due examination of their own individual situations.

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