European Journal of Migration and Law最新文献

Over the past ten years, the language of crisis has become increasingly common in discourse about migration governance at the European Union (EU) level, and policy responses have been oriented by an emergency rationale that prioritizes short-term solutions over long-term planning. EU migration and asylum law incorporates several crisis response mechanisms, and the addition of a new set of instruments has recently been proposed. This paper offers a critical legal mapping of what counts as a “crisis” in EU migration and asylum law, and the mechanisms for responding to such crises. It exemplifies a complex system in which the tension between the imperative to address threats purportedly arising from unwanted migration is intricately intertwined with the necessity of granting Member States flexibility to respond to contingencies without compromising the integrity of the common EU asylum and migration system.

Interaction between different levels of fundamental rights protection is a widely debated topic in EU scholarship, which has long dealt with situations in which national legislation lowered legal standards in the EU. Less explored, however, is the opposite case: when Member State regulations set standards higher than those enshrined at EU level. This can occur through application of the more favourable provision (MFP) clause – commonly enshrined in EU directives dealing with (but not limited to) immigration and asylum. Under it, Member States can apply more favourable standards insofar as they comply with EU legislation. Though seldom discussed in existing literature, the MFP clause is a critical issue of EU migration law and illustrative of challenges facing the EU constitutional order, for it highlights the relationship between fundamental rights protection in the multi-layered EU system and general principles of EU law. Against this backdrop, this paper will investigate the features of the MFP clause in EU migration law and analyse the CJEU’s adjudication in immigration and asylum cases, exploring its reasoning in testing application of MFP clause against EU law.

After reducing their humanitarian presence at sea, States have begun to interfere with Search and Rescue (SAR) operations led by NGOs aimed to render assistance to migrants in distress. In Italy, the recent Law-Decree 1/2023 on NGOs’ SAR activities constitutes an important development grounding States’ efforts to interfere with activists’ operations. In this article, I first describe the practices of delay and/or denial of disembarkation that Italy has implemented. Second, I consider whether these strategies stemming from national legislation are compliant with the State’s international obligations under the law of the sea. I show how the law of the sea provides some regulation but also leaves crucial gaps which amplify the State’s discretion in interpreting legal duties. Third, I assess how the new Law interferes with the rights of rescuers. I conclude that Italy’s interference with the human rights of rescuers operating at sea is not fully compliant with international legal obligations.

This article analyses the differential treatment among refugees inherent to temporary protection arrangements. What was particularly remarkable in the EU’s response to displacement from Ukraine, for instance, was the free access for Ukrainians to EU territory and even free choice to seek protection in any Member State. Thus, the persons under this arrangement are better off initially, and this may seem preferable to the deterrence measures taken in response to other cases of ‘mass influx’ which restricted, rather than facilitated, access to protection. As it may in the longer term be better for some refugees to undergo the ordinary asylum procedure and eventually receive refugee or subsidiary protection status, temporary protection raises complex questions of differential treatment. At the same time, within the ordinary asylum procedure some EU Member States have introduced distinctions resulting in differential treatment of certain refugee categories whose need for protection is perceived to be temporary. This article positions the implementation of the various temporary protection arrangements within the general norms of non-discrimination by analysing key aspects of differential treatment and attempting to identify the boundary between lawful and unlawful distinctions.

The purpose of this article is to scope, map and critique EU externalisation devices in asylum law. The article first evaluates the internal dimension of externalisation in EU asylum law, with the Dublin system being an internal device of externalisation supported by the securitisation of asylum law. The article then maps EU border externalisation manifested in border violence and critically discusses judicial responses to it. Finally, the article scrutinises EU externalisation beyond its borders, as realised by the outsourcing of asylum responsibilities or border controls to non-European countries. EU externalisation is here studied in a multi-faceted way, taking stock of devices from across the spectrum of EU asylum law. It is argued that EU externalisation is wholly underpinned by a neo-colonial narrative of emergency and repulsion that is harmful to refugees as it does not sit comfortably with principles of refugee law or EU and international human rights law.

This article critically analyzes, from an intersectional perspective, the instruments and approaches adopted to identify, support and protect exploited and trafficked migrants, including asylum seekers, in European countries. By building on relevant findings from the VULNER research project, and drawing on feminist and socio-legal studies highlighting the complex dimension of both exploitation and vulnerability, the article examines the ways victims’ vulnerabilities are addressed by national protection systems, the main challenges in tackling such situations, and the interconnection between asylum and anti-trafficking systems in this regard. In doing so, the paper mobilizes intersectionality from two different yet complementary angles: as a lens to recognize the interplay of multiple factors contributing to situations of vulnerability to exploitation, and as a way to shed light on the limitations of relevant instruments and approaches that focus on some specific models and understandings of victims, neglecting the systemic character of exploitation, and the situational and intersectional dimension of vulnerabilities. The article focuses on relevant legal and policy instruments and approaches in some of the European countries covered by the VULNER project, especially Italy, Belgium and Norway.

Sexual orientation, gender identity, gender expression and sex characteristics (SOGIESC) are often considered among the main personal characteristics which are likely to give rise to special procedural and reception needs, often resulting in labelling lesbian, gay, bisexual, trans, intersex and queer (LGBTIQ+) asylum-seekers and refugees as “vulnerable”. However, SOGIESC issues should not be analysed in isolation, as there are various factors that can impact on one’s experience in the country of origin and throughout the asylum procedure. This paper shows the added value of mobilizing intersectionality in the assessment of SOGIESC asylum claims. By analysing soft law instruments, legislation and case law and taking Italy as a case study, this paper shows that intersectionality can be a useful analytical tool that can support a better understanding of how LGBTIQ+ asylum-seekers experience their “vulnerabilities”, as well as sustain State practices that address their protection needs in the asylum domain.

This article adopts an intersectional approach to examine migratory vulnerabilities. It draws from qualitative data gathered by the VULNER research teams in four countries: Belgium, Germany, Italy, and Norway, exploring how age and legal status intersect and how this intersection influences other vulnerability factors. When examining the rationale and consequences of practices that employ young age as a criterion for additional protection and welfare provision in the four countries, a paradox becomes apparent: designating UAMs as minors provide them with safer recipient conditions, yet, it may not guarantee a comprehensive child-sensitive approach in the long run. Treating them as asylum seekers, however, could lead to a more thorough evaluation of their vulnerabilities and long-term protection needs. Managing this paradox creates ambivalence in both systems. Moreover, the timing of these procedures greatly influences outcomes. The analysis is a part of the EU VULNER project, investigating vulnerability within global protection regimes.

In the asylum processes, medical documents are frequently used to establish a need for international protection. These include medico-legal reports written under the Istanbul Protocol. Their objective is to prove past persecution (e.g. torture) and/or specific vulnerability/ies, which should be taken into account in the procedure as well as in the assessment of the protection needs.

Firstly, the applicable international and EU legal framework and existing ECtHR case law are briefly analysed. Secondly, a study of Belgian asylum authorities and Courts’ practices, based on the analysis of individual cases, and on interviews carried out with victims of torture, shows that the weight given by asylum authorities to these documents varies. There is a lack of consistency in the practice in particular regarding their probative value. The article analyses in detail trends in the case-law and the reasonings put forward. Lastly, the article discusses how medical documents, by identifying and documenting vulnerabilities, can contribute to the consideration of all vulnerabilities from an intersectional perspective.

This article explores how “other vulnerabilities” can be examined through an intersectional perspective. “Other vulnerabilities” are the ones either established in the current policy and legal framework at the international and national level or, in addition, those that have been identified throughout the VULNER research path, besides age, gender and human trafficking. These “other vulnerabilities” have been classified along three dimensions: personal, situational and administrative vulnerabilities. Against this backdrop, the present work claims how the notion of intersectionality should be used as a heuristic tool through which examine and better understand vulnerabilities. Since that intersecting vulnerabilities are the rule and not the exception, intersectionality is crucial in order to ensure a more comprehensive and tailored identification and assessment of vulnerability. Through an intersectional approach, vulnerability is not read and interpret along a presence/absence perspective, but as a condition composed of multiple layers that are susceptible to change in time and space.