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By Jessica Schultz, Senior Researcher, Chr. Michelsen Institute and Jens Vedsted-Hansen, Professor Emeritus, Aarhus University

In Sweden, Denmark and the United Kingdom, recent legislative changes and proposals have directly and indirectly challenged Article 8 of the European Convention on Human Rights (ECHR), which protects the family and private life ties established in a contracting state. Sweden has abolished access to permanent residence for refugees and other persons with international protection, limited access for others through ‘good character’ provisions and is considering the revocation of permanent residence permits already granted. In Denmark, recently passed legislation as part of its ‘expulsion reform’ mandates a strong presumption that foreign nationals convicted of serious offences should be expelled to ensure ‘the right balance’ between state interests and individual rights under Article 8 ECHR. The UK government, meanwhile, is seeking to prescribe more narrowly which relationships and attachments count under Article 8 ECHR and limit the weight they should receive. These initiatives are undertaken against the backdrop of concerted efforts to influence the scrutiny applied in migration-related cases by the European Court of Human Rights (ECtHR).

The right to private and family life as a limit on migration control

Article 8 ECHR does not confer a general right on a non-citizen to enter or remain in a particular state. It nevertheless requires interferences with private and family life to be lawful, to pursue a legitimate aim, and to be necessary and proportionate. It is consequently relevant to removal proceedings following a criminal conviction and the loss or absence of lawful status (including the cessation of refugee status). Family reunification cases are assessed under similar principles. The ECtHR applies an individualized proportionality assessment in which the state interest in immigration control and public safety must be weighed against the individual and family interests affected by the decision.

In leading judgments including Üner (§§ 57-60) and Maslov (§§ 71-73), the ECtHR has set forth the relevant criteria to be balanced, including: the severity of (any) misconduct, the time elapsed since the offence, and the age of the offender; the length of residence; the nationalities of the various persons concerned; family relationships; children’s best interests and the solidity of social, cultural and family ties with the host country and with the country of destination. Savran v. Denmark (§§ 182 and 184) confirmed that medical factors, as well as the duration of an entry ban, may also be relevant.

These are the criteria applying to migrants with a so-called ‘settled’ legal status, i.e. people with lawful residence in a contracting state during a certain period (cf. B.K v. Switzerland). For migrants with ‘precarious’ residence, usually because of their unlawful presence, the test is skewed further in the expelling state’s interest. In these cases, ‘exceptional circumstances’ must be present for expulsion to violate Article 8 (Jeunesse v. The Netherlands). Certain states, including the UK and Norway, have argued that temporary permits are also a form of ‘precarious’ residence. This is why the current ‘temporary turn’ in the asylum and immigration policies of the states we examine – in which a predictable path to settlement has been replaced by time-bound permits subject to regular review – has, if accepted by the ECtHR, potentially important repercussions for the scope of Article 8 protection for long-term lawful residents.

This post examines how the proposed and new reforms aim to recalibrate the proportionality assessment. In Denmark, this is done by making serious criminality presumptively decisive and reducing the weight attached to social, cultural and family connections. The 2026 Immigration and Asylum Bill in the UK, meanwhile, expands the ‘public interest’ considerations to be taken into account – whether the person can support themselves, has ‘good character’, etc. – and further specifies that family and private life ties would literally have ‘no weight’ in cases where the person’s residence is or has been unlawful.

Following an analysis of these initiatives, the post turns to the legislation of legal precarity through limits on permanent residence. Drawing on the distinction described above between ‘settled’ and ‘precarious’ status, we look at how the abolishment of permanent residence for refugees in Sweden and new measures prolonging settlement in the UK could, in the absence of strong oversight, relegate long-term residents to second-tier protection under Article 8 ECHR. While the UK proposal is silent on the potential impact of prolonged precarity on Article 8 rights, Swedish drafters avoid engaging Article 8 by invoking and reinforcing technical distinctions between residence status and residence rights. In essence, they argue that it is not necessary to consider compliance with (all aspects of) Article 8 until an eventual removal decision.

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By Dr Emilie McDonnell

University of Tasmania School of Law

Across the Middle East, North Africa, Southeast Asia and beyond, millions of people are being denied their right to leave and subjected to a discriminatory and exclusionary mobility regime.

Protecting the Right to Leave in an Era of Externalised Migration Control argues that the right to leave any country, including one’s own, in international law offers a neglected yet powerful lens through which to understand and challenge the global architecture of externalised migration control.

European Union (EU) policies and Member State practices – from visa policy and carrier sanctions to interceptions, cooperation agreements with States of origin and transit, and Frontex-supported operations – can obstruct departure and violate people’s fundamental right to leave, including that of refugees seeking asylum.

Reimagining EU migration policy, and the global (im)mobility regime more broadly, so that States and international organisations (IOs), including the EU, respect the right to leave would require radical reform. The book argues for a shift away from containment towards policies that uphold international law, promote genuine responsibility sharing and foster a far more liberal and equal global mobility regime.

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By Prof. Francesco Maiani

University of Lausanne

Introduction

The Asylum and Migration Management Regulation (EU) 2024/1351 (hereafter AMMR) has superseded the Dublin III Regulation on June 12. As argued elsewhere, its provisions on responsibility allocation and secondary movements may exacerbate, rather than alleviate, distributive imbalances in the CEAS. Indeed, recent EU policy documents stress that the Pact has created new gatekeeping tasks for “Member States of first entry”, and that the permanent solidarity mechanism is meant to support “notably these Member States”, “balanc[ing]” their new challenges and responsibilities.

In the hopes of the EU legislator, the new solidarity mechanism has, indeed, wider significance for the CEAS: it should generate and sustain a virtuous circle (see recitals 2 and 3). The promise of predictable and significant solidarity should convince the first line States to embrace fully their (increased) responsibilities, and put an end to evasion measures such as the rather spectacular suspension of Dublin transfers by Italy. This should, in turn, reassure “inland” States wary of secondary movements, and allow them to fully embrace solidarity, sustaining the virtuous circle – in a nutshell, more solidarity for more responsibility, and the removal of the incentives to violate EU Law that have so undermined it on the ground. Of course, this can only work if the solidarity mechanism is indeed credible and predictable in the first place.

The new mechanism is built on a difficult compromise between Member States having fundamentally divergent interests and outlooks on the common asylum policy. Meant to be “mandatory” and “flexible” (see recital 22), it should provide a “predictable” insurance scheme to Member States under migratory pressure (see recitals 15 and 33), while providing acceptable options to all Member States, including those having the most vocally objected to certain forms of solidarity, particularly relocations.

I have described and commented the core rules on the “annual migration management cycle”, culminating in the yearly adoption of an Annual solidarity pool (ASP or Pool), in a previous post. The present post describes the first application of these rules up to the establishment of the 2026 Pool, which will be implemented in coming months. In doing so, I will proceed step by step, examining first the Commission “solidarity package” adopted in November 2025, and then the Council Implementing Decision establishing the Pact, adopted in December 2025.

This first run was bound to be somewhat special. On the one hand, the 2026 Pool will only be accessible for roughly seven months, starting in June, instead of a full calendar year. On the other hand, the “first” of anything as politically fraught as a solidarity mechanism in the field of asylum can be expected to be somewhat tentative. Therefore, we should be slow in taking the first decisions described below as representative of established practice. And yet, they do cast a light on a number of vulnerabilities of the system, and reveal a worrying tendence to disregard its core rules by the very actors that should uphold them.

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By Dr. Daniel Thym, Universität Konstanz

Ironically, it was Manfred Weber, President of European People’s Party (EPP), who proposed limiting the room for manoeuvre during the negotiations on the Return Directive 2008/115. Two decades ago, Weber served as the EP’s rapporteur; his report rejected the Commission’s proposal to authorise the transfer to any third state, irrespective of ties or transit (here, Amendment 18). This time around, the EP’s majority took a different stance.

A Not Quite so Innovative Solution

Return hubs did not feature in the Return Directive 2008/115, nor have Member States actively pursued the idea in the past. So they are a novelty, albeit one with a backstory. EU institutions have always invested political capital in the expansion of destination countries for return (here, p. 8-9). Readmission agreements with Turkey, Serbia, and Ukraine, amongst others, cover non-nationals who have transited through these countries. Insistence on transit clauses was a stumbling block for the negotiations. Return to transit countries remained a rare occurrence, despite political pressure.

Recurring challenges in negotiating readmission agreements with a transit clause serve as a poignant reminder that it is easy to put return to third states on the ‘wish list’ in Brussels. Conversely, it can be tremendously difficult to identify partner countries that are receptive. The risk of a ‘phantom debate’ is real, with few third states being ready to host a return hub. Moreover, few would expect that more than a dozen or hundred persons could be brought there.

Return hubs deserve our attention despite these limitations. They may be no ‘magical solution’ for the myriad practical and political impediments for an effective return policy. However, they can be an important ‘control signal’ towards public opinion, prospective migrants, and other returnees. In this sense, they might serve as the symbolic hallmark of a holistic approach for specific migratory routes, or subcategories of returnees.

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By Prof. Alessia di Pascale, Universita Degli Studi di Milano (UNIMI)

1. With just under two weeks to go before the full implementation of the new European Pact on Migration and Asylum, scheduled for 12 June 2026, the process of adapting national systems to the new European legal framework still appears incomplete. Despite the two-year transitional period provided for following the adoption, in spring 2024, of the ten legal acts comprising the Pact (nine regulations and one directive), to allow for the necessary adaptation of regulatory frameworks, organisational structures, administrative procedures, human resources and national infrastructure, the third report on the state of implementation of the reform published by the European Commission on 8 May 2026 highlights delays and persistent operational, regulatory and organisational challenges in most Member States, despite some ‘significant progress’.

The report forms part of the periodic monitoring system designed to accompany the various stages of the Pact’s implementation, also in light of the Joint Implementation Plan, drawn up by the Commission itself, in collaboration with the Member States and European agencies, in June 2024. This monitoring activity began with the first progress report of 11 June 2025 and continued with the second report of 11 November 2025, adopted alongside the 2025 European Annual Report on Migration and Asylum.

In particular, the Regulation on the management of asylum and migration (“AMMR”, Articles 7 and 84(e)) and the Regulation on asylum procedures (Article 75) required Member States to draw up national implementation plans by December 2024 and, by June 2025, national strategies to ensure adequate administrative and organisational capacity. On this basis, the European Commission adopted the European Strategy on Asylum and Migration in January of this year. However, in addition to delays in the submission of these documents (which Hungary stated it did not wish to submit), only a few Member States have made them public (for an up-to-date overview of the national documents made public, see EUAA, National Implementation Plans and National Strategies under the EU Pact on Migration and Asylum, March 2026). In February 2025, around fifty European civil society organisations had, therefore, sent a letter to the European Commission denouncing the lack of transparency and the failure to involve them in the drafting of the national implementation plans, also pointing out the possible conflict with Regulation (EC) No 1049/2001 on public access to documents of the European institutions, which recognises the right of access not only to documents drawn up by the institutions, but also to those received by them. In Italy, the documents were not published and the administrative Court, in a decision of 3 March 2026, annulled the Ministry of the Interior’s refusal to disclose the National Implementation Plan (PAN). The matter had also been the subject of a request for access to documents addressed directly to the Commission and subsequently of an action for annulment (T-621/25) of the European Commission’s implied decision rejecting the request for confirmation of access to the various documents (see also the Commission decision of 3 December 2025)

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By Prof. Jean-Yves Carlier and Dr. Eleonora Frasca, Université de Louvain (UCLouvain), members of Equipe droits et migrations (EDEM)

This is a revised version of extracts from the yearly case law column “Libre circulation dans l’Union européenne”, published in French in the Journal de droit européen, no. 4, April 2026 (forthcoming).

Without constituting the final word, the judgment of the Court of Justice of the European Union (CJEU) in Commission v. Malta (Citizenship by investment) undoubtedly sets a benchmark in case law concerning the intersection between Member States’ nationality and EU citizenship. The ruling condemns what was referred to as the issuance of “golden” passports. In doing so, the CJEU uses constitutional language to affirm explicitly that Union citizenship “constitutes” the fundamental status of the nationals of the Member States (para 92). The issue was no longer to review the effects of a positive or negative conflict of nationality in light of the effectiveness of EU citizenship – as in most cases previously referred for a preliminary ruling spanning more than 30 years from Micheletti (1992) to Stadt Duisburg (Loss of German nationality) (2024). In this infringement procedure, the Court examined access itself to EU citizenship through access to nationality of a Member State. The Court held that Malta failed to fulfil its obligations under Article 20 TFEU (EU citizenship) and Article 4(3) TEU (principle of sincere cooperation), finding that the Maltese Citizenship Act “establishes a transactional naturalisation procedure in exchange for predetermined payments or investments and thus amounts to the commercialisation of the grant of the nationality of a Member State and, by extension, of Union citizenship” (operative part). The judgment was intended to draw a red line in the name of the Union’s values: EU citizenship is not for sale.

Our analysis proceeds in four steps: first, we analyse the Court’s constitutional framing of EU citizenship as a special relationship of solidarity and good faith. It is worth noting that “good faith” is rendered in French as loyauté, in Italian as lealtà, in Dutch as loyaliteit, in Spanish as lealtad, and in German as Loyalitätsverhältnis. Second, we assess whether the rights attached to citizenship genuinely function as vectors of EU integration. Third, we examine alternative doctrinal grounds for establishing Malta’s infringement – particularly the notion of abuse of rights. Fourth and last, we evaluate the short-, medium-, and long-term implications of the judgment for mutual recognition, national sovereignty and the future limits of judicial scrutiny over similar, but not equally worrying, Member States’ nationality policies.

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