European Journal of Migration and Law最新文献

What ‘border security’ or ‘secure borders’ denote in the EU is not defined. The article explores the concept of border security and how the concept of border security found its way into the supranational EU legislation on border control. The core of the concept of border security can be seen as consisting of ‘border control’, referring to the maintaining of controls of individuals crossing the EU external borders. The developments towards the use of the term border security seemingly encompass, at least, the evolution of the EU internal security domain, a qualitative change in the nature of a number of border control related measures, the perception of insecurities related to the 2004 EU enlargement and the 11 September 2001 attacks. At least at the time when Frontex became operational in 2004, a border security rhetoric began to be used in the EU. Today, the term border security is well established in EU actors’ rhetoric. The supranational EU rules containing the term border security are fundamental elements of the EU border policies and play a crucial role in contributing to the EU discourse on border issues.

The fiction of non-entry is a legal fiction usually employed by States at their borders. Such a fiction is based on the distinction between the physical presence of a person on the national territory and her legal entitlement to cross the border and reside herewith. More precisely, the fiction of non-entry revolves around the concept of admission and on the premise that unadmitted migrants (i.e. migrants not fulfilling the entry conditions and, therefore, refused entry, or migrants awaiting admission) at the borders, despite being physically present on the territory, are not to be considered so for legal purposes. By this mean, States are able to deny the application of the ordinary legal regime, institutionalizing a detrimental legal framework for unadmitted migrants at the borders as opposed to the one applicable to regular or even irregular migrants within the national territory. The purpose of this article is to explore the role of such a fiction in European migration law, namely in the context of EU law and the ECtHR jurisprudence, with a focus on the issues of admission on national territory, detention and expulsion. Moreover, this contribution aims at showing how this legal construct is to become increasingly central to European migration law. Indeed, the fiction of non-entry is currently at the core of the new “integrated border procedure” proposed within the 2020 new pact on migration and asylum. Therefore, the contribution will analyse the consequences of such an institutionalization on the rights of migrants at the EU external borders.

Article 18 TFEU appears to prohibit nationality discrimination throughout the scope of EU law, but the Court of Justice uses various techniques to often deny equal treatment to people who are within that scope. It wants to create a layered regime of rights, which takes account of the degree of integration and participation of Union Citizens and their families, but this ambition is in tension with the apparently simple Article 18 rule. The solution, this article suggests, is to recognize that discrimination itself is a layered concept, allowing for justified distinctions, and so for different treatment of different groups. There is a surprising amount of support for this view in the case law. The article looks at the cases on equal treatment for Union Citizens and their families, including TCN family members, and tries to provide a coherent conceptual and legal frame which explains their results.

The 2020 EU Pact on Migration and Asylum introduced a series of legal texts aimed at reforming the existing EU asylum policy. Following years of challenging negotiations, an agreement on the Pact was reached in December 2023 with all the texts published in the Official Journal of the EU in May 2024. This article critically discusses some provisions of three key texts within the Pact: the Asylum Procedures Regulation (APR), the Crisis Regulation, and the Asylum and Migration Management Regulation (AMMR). The aim is to uncover the strategic employment of derogations and exceptions to compensate external border states for their heightened responsibilities, particularly in situations of migratory pressure. The article also explores the impact of newly introduced concepts and measures, such as the ‘non-entry’ fiction and the concept of ‘adequate capacity’ in border procedures, as well as derogatory provisions in ‘crisis’ and ‘instrumentalisation’ situations. It highlights how the agreed instruments, under the guise of presenting derogations as a form of ‘solidarity’, compromise the rights of asylum seekers and fail to effectively address the increased responsibility of states at the external borders. It further argues that these measures deviate from the goal of harmonisation within the Common European Asylum System (CEAS). The paper concludes by emphasising that the promise of achieving a fair and balanced asylum system in the EU remains unfulfilled, with an overreliance on derogations overshadowing genuine progress.

This article comments on Case T-600/21 to highlight the serious shortcomings in direct actions before EU courts against allegations of fundamental rights violations by Frontex. It contributes to existing scholarship on legal accountability failings with regard to operational activities by Frontex for two reasons. First, the contribution argues that Frontex’s operational competences in the area of return are clearly circumscribed, not only by the Regulation on the European Border and Coast Guard and the Charter of Fundamental Rights of the EU, but also by crucial substantive and procedural safeguards contained in the Return Directive. Secondly, the article proposes a number of changes to current remedies against executive action of Frontex, in particular with regard to evidentiary requirements and the qualification of the EU conduct amenable to review. It argues that Article 47 of Charter, as interpreted by the Court of Justice itself, puts that same court under a clear and unequivocal obligation to adapt its own procedures accordingly in order to protect the very core of the right to effective judicial protection, namely access to courts.

This paper departs from a deductive premise seeking to apply the theory of “collectivised system of refugee responsibility” to the EU-Egypt migration arrangements. In its basic form, the theory proffers the funding and oversight of the wealthy North to assert protection, and integration of refugees in southern countries. At face value, the design and structure of the EU-Egypt migration arrangements appear to reflect this formula: EU funding in return for Egyptian principled accommodation of refugees. A profounder analysis of these deals, nevertheless, discerns the emergence of an alternative linguistic and legal discourse that priorities security and control over the humanitarian cause. Practice, as well, demonstrates that neither the EU is willing to undertake any refugees’ oversight roles, nor Egypt is vying for EU funding. To the contrary, Egypt’s generous funding of EU commercial interests and ruthless crackdown on refugees represent Egypt’s basic offerings to appease the EU and garner its political support.

Can the management of transnational migration and asylum be used as an instrument of foreign policy? From labour market needs to legal issues, electoral pressure, and financial and commercial interests, the scholarly literature on the drivers of migration policy in both the North and the South has focused primarily on domestic factors. The case of Morocco offers a useful additional perspective. The security-orientated and restrictive policy toward transmigrants applied in the 2000s gave way, in 2013, to a new approach that was much more welcoming and mindful of migrant integration. Since Morocco’s independence in 1956, asylum management has been driven exclusively by security and political objectives. Although it has never had a national asylum system, Morocco has officially taken the initiative to establish a system that complies with its international commitments in asylum. By taking a Moroccan perspective on the situation, this article examines the management of migration and asylum by a country of the Global South with a multifaceted migration profile (as a country that is simultaneously one of emigration, transit, and immigration). It shows that Morocco’s change in migration policy is a reflection of its evolving foreign policy.

Since 2011, migration and asylum have grown in salience in EU-Tunisia international cooperation. Through various agreements, the EU has provided technical and financial support to Tunisia to strengthen its border management capabilities, develop a national migration strategy, legislate a national asylum framework, and re-integrate Tunisians who were returned from Europe. However, among the points of contention between Tunisia and the EU, two key issues stand out: the continued absence of a national law governing asylum in Tunisia, and Tunisia’s refusal to include clauses related to readmission (of its own nationals and third-country nationals) in its agreements with the EU. Drawing on an analysis of cooperation on asylum and readmission between the EU and Tunisia from 2011 to 2021, this article argues that the EU’s perceptions of a lack of cooperation from its Tunisian counterparts are misplaced. Rather, Tunisia is willing to work cooperatively with the EU as long as it does not see this cooperation serve the sole purpose of supporting the EU’s externalization agenda. We see this attitude as a form of resistance to EU pressure, with the unfortunate consequence being the undermining of protection for vulnerable populations in Tunisia and in the EU. Tunisian authorities see the adoption of an asylum law as paving the way for disembarkation platforms, the use of the safe third country concept to return foreign nationals and contain them to Tunisia. This has been fueled by issue linkage in negotiations with the EU between the passing of the asylum act and the return of third-country nationals to Tunisia. Similarly, while Tunisia has concluded agreements with some EU countries regarding the readmission of its nationals, its priorities with respect to facilitating returns lie in the protection of its nationals’ social rights rather than in meeting quantitative targets set by the EU.

The EU-Turkey Statement of March 2016 aimed to end irregular migration from Turkey to the European Union (EU). Since 2016, the relationship between Turkey and the EU has undergone significant changes. While the EU fulfilled only two of its promises under the Statement, Turkey suspended the implementation of the return component of the Statement in 2020 and stopped readmitting third-country nationals from Greece. Meanwhile, recent judgments delivered by the European Court of Human Rights, such as Akkad v. Turkey and G.B. and others v. Turkey, have shed new light on conditions facing refugees, asylum seekers, and migrants in Turkey. This article aims to analyse the implementation of the EU-Turkey Statement as of 2024 by examining to what extent Turkey and the European Union, as well as its Member States, have fulfilled their pledges and acted in line with the course of action agreed under the Statement. It also aims to investigate to what extent Turkey’s assumed status as a safe third country has changed over the years. Given that the number of irregular passages towards the EU through Turkey has decreased considerably and that the return component of the Statement is not currently implemented, we argue that the assessment of whether Turkey is safe should be made with reference to refugees, asylum seekers, and migrants contained in Turkey as a result of the EU-Turkey Statement arrangements not just those returned under the EU-Turkey Statement.

Since 2014, as part of the EU accession negotiations, Serbia is meticulously conducting legal, policy, and institutional reforms in order to align its asylum and migration law and policy with the EU acquis. At the same time, as a consequence of the European policies put in place since 2015 (fences, large-scale pushbacks), Serbia faces a high risk of becoming a buffer zone in between EU Member States Greece and Bulgaria (whence many refugees enter Serbia) and Croatia and Hungary (which many refugees seek to enter).

While aiming to implement EU law as a candidate Member State, Serbia is simultaneously trying to avoid stronger migration pressure and becoming a hotspot which are the consequence of implementing the EU acquis. Caught between these two conflicting policy aims, Serbia is following the example of Greece in limiting migration pressure by keeping its asylum system dysfunctional, ignoring refugee needs and undermining refugee protection. The substandard character of the Serbian asylum system in practice (both when it comes to its slow and inefficient asylum procedure, limited access to legal aid and information, as well as when it comes to an unsustainable and dysfunctional reception and integration system) makes returns to Serbia a violation of European Human Rights law (i.a., ECtHR 21 November 2019, Ilias and Ahmed v Hungary, application no. 47287/15), while it also gives migrants and refugees a strong incentive to move on to the EU.

This combination of formally adopting, but not implementing, the EU acquis will be analysed as a normative response to the perceived lack of legitimacy of the EU acquis, which uses the weak position of peripheral Member States like Greece and neighbouring countries like Serbia to impose a disproportionate burden on them.