By Marie De Somer, Head of the Migration & Diversity Programme at the European Policy Centre (EPC) and Guest Professor at the KU Leuven Centre for Public Law.

Dr. Marie De Somer is author of the book ‘Precedents and Judicial Politics in EU Immigration Law’. This blogpost elaborates on one of the arguments developed in the book.

The Court’s Fluctuating Case Law

Much has been written about the role of the Court of Justice of the European Union (CJEU) in processes of European integration. It is clear that the progressive expansion of EU competences into ever more areas of law owes a lot to Court-driven dynamics. What is less clear, however, is the extent to which these dynamics took place at the expense of Member States’ intentions.

This question has long occupied both legal and political science scholarship. Academic debates on whether or not the Court acts independently from Member States’ political preferences can be traced back as far as the 1980s for legal scholarship (see e.g., famously, Weiler’s or Rasmussen’s early work) and the early 1990s for political science (see Garrett and Burley & Mattli). In spite of this long academic lineage, neither of the two disciplines has thus far produced much consensual understanding on the topic (see the book’s second chapter for further detail).

Instead, recent legal scholarship continues to discuss questions on the Court’s legitimacy – or whether or not it is an ‘activist’ institution – in light of observations of case law outcomes that reverberate beyond the strictly legal sphere (see Adams et al. or De Witte et al.). Similarly, political science on the Court remains occupied with, and divided on, the degree of interpretative leeway the EU judiciary enjoys relative to Member States’ preferences (see for a recent contribution e.g., Blauberger et al.)

The salience of these debates has increased significantly in recent years. Writing against the background of the Brexit vote and a generally increasing politicisation of European governance, the topicality of understanding the Court’s precise role and autonomy could hardly be greater.

Continue reading »

by Silvia Carta, LL.M. candidate at the Institute for European Studies (IEE) of the Université libre de Bruxelles and member of the Odysseus Network OMNIA Project Team

Omnia project logo 

In the past months, Italian migration policies have been in the spotlight with regard to the deterrence measures adopted to prevent sea arrivals of migrants. After the closure of ports to vessels transporting migrants and the reduction of search and rescue operations at sea, the government adopted a restrictive approach to the internal norms, reforming the architecture of the Italian system of protection.

On 24 September 2018, the Italian Council of Ministers unanimously adopted a new Decree-Law on Immigration and Security. Strongly endorsed by the Minister of the Interior Matteo Salvini, the final text of the Decree contains ‘urgent measures’ on international protection and immigration, as well as on public security, prevention of terrorism and organised crime. Following the approval of the President of Republic, the bill has come into force on October 5. The future of the Decree now lays in the hands of the Parliament, which will have to transpose it into law within sixty days of its publication or it will retrospectively lose its effect.

The securitarian approach adopted sparked strong criticism within civil society and the President of the Republic himself accompanied his signature with a letter addressed to the President of the Council, reminding that all ‘constitutional and international obligations’ assumed by Italy remain binding, even if there is no explicit reference to them in the Decree. This blog post provides an overview of the first two Chapters of the Decree-Law, dedicated to immigration and asylum. It will further analyze their impact on the rights of protection seekers and their compatibility with European law, International law as well as the Italian Constitution. Continue reading »

by David Fernández Rojo, PhD Researcher, University of Deusto

This blog article also examines the key novelties included in the amended proposal for a Regulation on the European Union Agency for Asylum, as this was put forward by the European Commission on 12th September 2018 following the speech on the 2018 State of the Union by President Juncker.

Introduction

From May to July 2016, the Commission put forward a wide-ranging European Asylum package, which included the establishment of a European Union Agency for Asylum (EUAA). The Council and the European Parliament reached a partial agreement on 28 June 2017 on twelve chapters of the Regulation on the future EUAA with the exception of Chapter 1 (“The European Union Agency for Asylum”), Chapter 3 (“Country information and guidance”), Chapter 5 (“Monitoring”), and Chapter 9 (“Organization of the Agency”). President Juncker announced in his speech on the 2018 State of the Union made on 12 September, the Commission’s intention to “further develop the European Asylum Agency to make sure that Member States get more European support in processing asylum seekers in line with the Geneva Convention”. On the same day, the Commission that welcomes the agreement concluded by the legislators released an amended proposal containing only targeted amendments reinforcing the operational tasks of the EUAA. This blog post analyzes the key novelties tabled in both 2016 and 2018 Commission proposals, and critically assesses what changes they will bring about to EASO’s current mandate in comparison with the mandate of the European Border and Coast Guard following Regulation 2016/1624 of 14 September 2016.

Continue reading »

By Francesco Maiani, Associate Professor, Centre of Comparative, European and International Law, University of Lausanne

This article has been originally published on reflaw.org which operates under the auspices of the University of Michigan Law School’s Program in Refugee and Asylum Law (PRAL). The link to the article on the reflaw.org website is accessible here. Professor Francesco Maiani is also Member of the Editorial Advisory Panel (EAP) of RefLaw.

Introduction: The Cyclical Crises of The Common European Asylum System

In 2015-2016, the Schengen common travel area and the Common European Asylum System (CEAS) risked a complete meltdown. The story has been told elsewhere on RefLaw: one million refugees landed in Greece and Italy and then engaged in secondary movements throughout the European Union (EU). In response, unilateral measures negating the very idea of a common space of travel and protection spread like wildfire: “waving” unidentified refugees “through” to neighbouring States, unilateral border closures, competitive devaluations of national asylum systems endangering the integrity of international and EU standards. Some semblance of unity could only be found under the rallying cry of “stemming the flows.”

The EU thus initiated a series of measures aiming to confine refugees in countries outside or on the periphery of the EU. The EU-Turkey statement and “hotspot approach” epitomize this policy. At the same time, the European Commission proposed a reform package centred on three ideas: fighting secondary movements, reinforcing the above mentioned externalisation measures, and introducing a new solidarity mechanism centred on the physical relocation of protection seekers among the EU Member States (EUMS).

Fast-forward to the summer of 2018, and we are again in the midst of a “crisis.” The reform of the CEAS is stalled over the apparently unbridgeable rift between those EUMS requesting more solidarity and those EUMS wanting none of it. Meanwhile, with Mediterranean crossings reduced to pre-2015 levels, EUMS governments are maintaining, introducing or announcing unilateral measures to “stem” imaginary but electorally lucrative migration flows.

Continue reading »

by Niovi Vavoula, Lecturer at Queen Mary, University of London

On 14 March 2018, the Commission adopted a proposal on the reform of the Visa Code and just three months later, on 22 June 2018, the Council reached its general approach. This contribution aims at providing a concise analysis of the proposed rules whilst taking stock of the current state of play, with emphasis on the legal implications of the intertwining between visa and return policies.

  1. Background

The Visa Code sets out harmonised procedures and conditions for processing Schengen visa applications and in particular issuing visas to nationals originating from ‘blacklisted’ countries. The Code has been amended on numerous occasions. Nevertheless, a comprehensive reform of its rules remains elusive.

Following an evaluation of the Visa Code, in 2014, the Commission attempted to amend the rules in order to enhance facilitations and contribute to tourism, trade, and employment. Interestingly, when in 2001 the first ‘blacklist’ was drafted, such economic interests were not included among the criteria for ‘blacklisting’, which at that time involved risk of irregular immigration, risk of criminality and external relations. Progressively, the promotion of tourism and foreign trade were added to the equation, calling for a more liberal approach. It is in this context of balancing between the openness of the EU, security concerns and the maintenance of foreign relations that the proposal was tabled.

Continue reading »

by Maja Janmyr, Professor, Faculty of Law, University of Oslo

On 24th and 25th April, the European Union and the United Nations co-chaired the Second Brussels Conference, where a total of $4.4 billion was pledged in humanitarian support to Syria and neighboring refugee-hosting countries. While these funding commitments were nearly $5 billion short of what is needed to fund the humanitarian response, conditions on the ground demonstrate how far more than humanitarian aid is needed for any real and positive change to happen in the lives of Syrian refugees.

In Lebanon, a country with the highest per capita number of refugees in the world, the situation can be seen as particularly dire. At the Brussels conference, Lebanon made important commitments to refugee rights, but at home, political debates are raging surrounding the mass return of the same persons. But who is designated as a refugee in the first place? And who is really targeted for return? Research shows how these questions are far more complex than they may seem at first glance.

Continue reading »