Pub Date : 2023-05-29DOI: 10.1163/15718166-12340151
Alezini Loxa
In September 2020, the EU Commission published the New Pact on Migration and Asylum in order to offer ‘fresh start’ for EU migration law and policy. Complementary pathways for admission to EU territory were among the proposals set out in the Pact. This article takes stock of the different measures suggested by the Commission to create such complementary pathways. It suggests that the aim of creating complementary pathways remains to a large extent declaratory, it is devised in discretionary operational measures with loose grounding in EU law, and reproduces systemic deficiencies that have characterized EU asylum law in the past decades.
{"title":"Complementary Pathways: Pledging Protection at the Edges of EU Law","authors":"Alezini Loxa","doi":"10.1163/15718166-12340151","DOIUrl":"https://doi.org/10.1163/15718166-12340151","url":null,"abstract":"\u0000In September 2020, the EU Commission published the New Pact on Migration and Asylum in order to offer ‘fresh start’ for EU migration law and policy. Complementary pathways for admission to EU territory were among the proposals set out in the Pact. This article takes stock of the different measures suggested by the Commission to create such complementary pathways. It suggests that the aim of creating complementary pathways remains to a large extent declaratory, it is devised in discretionary operational measures with loose grounding in EU law, and reproduces systemic deficiencies that have characterized EU asylum law in the past decades.","PeriodicalId":51819,"journal":{"name":"European Journal of Migration and Law","volume":" ","pages":""},"PeriodicalIF":1.0,"publicationDate":"2023-05-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44435951","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-05-29DOI: 10.1163/15718166-12340147
V. Stoyanova
In the absence of effective legal means of entry in the EU, asylum seekers arrive spontaneously, a process that involves substantial dangers.1 Countries of protection, on the other hand, engage in deterrence and containment practices, whose compliance with international law can be debated.2 Still, there are serious challenges in qualifying these practices as being in breach of international law obligations.3 At the same time, another reaction that countries of protection have is organizing access to their territory via resettlement and other legal pathways. These other pathways are viewed as complementary to resettlement, which has justified the name ‘complementary pathways.’ They can be framed as ‘legal pathways’ since the person gains access to territory in compliance with the destination country’s legislation, in contrast to spontaneous arrivals. In this sense, the process that leads to entry is regulated. Complementary pathways merit special attention for at least two reasons. First, the concept has been introduced in the New York Declaration of 20164 and further in the UN Global Compact on Refugees of 2018.5 Both are authoritative soft-law instruments which can be seen to exert normative power by virtue of their political programmatic nature. UNHCR, being the main international actor involved in resettlement, keeps advocating for the expansion
{"title":"Complementary Pathways in Murky Legal Waters: A Lost Cause or a Light in the End of the Tunnel?","authors":"V. Stoyanova","doi":"10.1163/15718166-12340147","DOIUrl":"https://doi.org/10.1163/15718166-12340147","url":null,"abstract":"In the absence of effective legal means of entry in the EU, asylum seekers arrive spontaneously, a process that involves substantial dangers.1 Countries of protection, on the other hand, engage in deterrence and containment practices, whose compliance with international law can be debated.2 Still, there are serious challenges in qualifying these practices as being in breach of international law obligations.3 At the same time, another reaction that countries of protection have is organizing access to their territory via resettlement and other legal pathways. These other pathways are viewed as complementary to resettlement, which has justified the name ‘complementary pathways.’ They can be framed as ‘legal pathways’ since the person gains access to territory in compliance with the destination country’s legislation, in contrast to spontaneous arrivals. In this sense, the process that leads to entry is regulated. Complementary pathways merit special attention for at least two reasons. First, the concept has been introduced in the New York Declaration of 20164 and further in the UN Global Compact on Refugees of 2018.5 Both are authoritative soft-law instruments which can be seen to exert normative power by virtue of their political programmatic nature. UNHCR, being the main international actor involved in resettlement, keeps advocating for the expansion","PeriodicalId":51819,"journal":{"name":"European Journal of Migration and Law","volume":" ","pages":""},"PeriodicalIF":1.0,"publicationDate":"2023-05-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45206674","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-05-29DOI: 10.1163/15718166-12340150
Emiliya Bratanova van Harten
Complementary pathways are often viewed as an entirely political matter. While there is no legal obligation for states to introduce such, this article shows that their presence or absence has a bearing on how the ECtHR assesses compliance with the prohibition of collective expulsion of aliens. This concrete interaction between complementary pathways and human rights law has been introduced through the requirement of “genuine and effective access to means of legal entry” in the case law of the ECtHR. This article clarifies this requirement and assesses its general significance for the role of complementary pathways as a promotor of or a hindrance to human rights protection.
{"title":"Complementary Pathways as “Genuine and Effective Access to Means of Legal Entry” in the Reasoning of the European Court of Human Rights","authors":"Emiliya Bratanova van Harten","doi":"10.1163/15718166-12340150","DOIUrl":"https://doi.org/10.1163/15718166-12340150","url":null,"abstract":"\u0000Complementary pathways are often viewed as an entirely political matter. While there is no legal obligation for states to introduce such, this article shows that their presence or absence has a bearing on how the ECtHR assesses compliance with the prohibition of collective expulsion of aliens. This concrete interaction between complementary pathways and human rights law has been introduced through the requirement of “genuine and effective access to means of legal entry” in the case law of the ECtHR. This article clarifies this requirement and assesses its general significance for the role of complementary pathways as a promotor of or a hindrance to human rights protection.","PeriodicalId":51819,"journal":{"name":"European Journal of Migration and Law","volume":" ","pages":""},"PeriodicalIF":1.0,"publicationDate":"2023-05-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42755477","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-03-07DOI: 10.1163/15718166-12340146
Dora Kostakopoulou, T. Venables
EU citizenship is almost thirty years old and there are many reasons for thinking in a more holistic and constructive way about it. This can be done through the adoption of an EU Citizenship Statute which brings together all EU citizenship rights and dimensions, links clearly EU citizenship rights with the European Pillar on Social Rights, and fundamental rights, that is, the EU Charter of Fundamental Rights, enriches its rights and includes responsibilities for EU citizens. This idea has been supported by the European Parliament and the citizen-led Conference on the Future of Europe. In this manifesto, we present this institutional proposal, examine its drivers and its obstacles and propose the text of its possible articles before lending our attention to the steps required for the statute’s empirical implementation. The adoption of a statute would contribute to the creation of a rights-based and inclusive European community with an effective EU citizenship and enhanced living and working conditions.
{"title":"Towards a Statute on European Union Citizenship: A Manifesto","authors":"Dora Kostakopoulou, T. Venables","doi":"10.1163/15718166-12340146","DOIUrl":"https://doi.org/10.1163/15718166-12340146","url":null,"abstract":"\u0000EU citizenship is almost thirty years old and there are many reasons for thinking in a more holistic and constructive way about it. This can be done through the adoption of an EU Citizenship Statute which brings together all EU citizenship rights and dimensions, links clearly EU citizenship rights with the European Pillar on Social Rights, and fundamental rights, that is, the EU Charter of Fundamental Rights, enriches its rights and includes responsibilities for EU citizens. This idea has been supported by the European Parliament and the citizen-led Conference on the Future of Europe. In this manifesto, we present this institutional proposal, examine its drivers and its obstacles and propose the text of its possible articles before lending our attention to the steps required for the statute’s empirical implementation. The adoption of a statute would contribute to the creation of a rights-based and inclusive European community with an effective EU citizenship and enhanced living and working conditions.","PeriodicalId":51819,"journal":{"name":"European Journal of Migration and Law","volume":" ","pages":""},"PeriodicalIF":1.0,"publicationDate":"2023-03-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43268165","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-03-07DOI: 10.1163/15718166-02501000
{"title":"Front matter","authors":"","doi":"10.1163/15718166-02501000","DOIUrl":"https://doi.org/10.1163/15718166-02501000","url":null,"abstract":"","PeriodicalId":51819,"journal":{"name":"European Journal of Migration and Law","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-03-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"136340900","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-03-07DOI: 10.1163/15718166-12340144
M. Scott
In 2015, following a series of sub-regional consultations, 109 states endorsed an Agenda for the Protection of Cross-Border Displaced Persons in the Context of Disasters and Climate Change. Although active in supporting the consultative process and notwithstanding their endorsement of this ‘Protection Agenda’, the European Union and its Member States promote ‘effective practices’ in the global South without committing to the same course of action at home. Recognizing that the Protection Agenda is difficult to reconcile with contemporary migration politics in the global North, this article argues that an approach that builds on the European Climate Law commitment to pursue climate change adaptation ‘guided by the best available and most recent scientific evidence’ provides a starting point for addressing some important aspects of human mobility in the context of disasters and climate change, and provides a context for discussing the kind of transformational adaptation called for by the Intergovernmental Panel on Climate Change.
{"title":"Adapting to Climate-Related Human Mobility into Europe: Between the Protection Agenda and the Deterrence Paradigm, or Beyond?","authors":"M. Scott","doi":"10.1163/15718166-12340144","DOIUrl":"https://doi.org/10.1163/15718166-12340144","url":null,"abstract":"\u0000In 2015, following a series of sub-regional consultations, 109 states endorsed an Agenda for the Protection of Cross-Border Displaced Persons in the Context of Disasters and Climate Change. Although active in supporting the consultative process and notwithstanding their endorsement of this ‘Protection Agenda’, the European Union and its Member States promote ‘effective practices’ in the global South without committing to the same course of action at home. Recognizing that the Protection Agenda is difficult to reconcile with contemporary migration politics in the global North, this article argues that an approach that builds on the European Climate Law commitment to pursue climate change adaptation ‘guided by the best available and most recent scientific evidence’ provides a starting point for addressing some important aspects of human mobility in the context of disasters and climate change, and provides a context for discussing the kind of transformational adaptation called for by the Intergovernmental Panel on Climate Change.","PeriodicalId":51819,"journal":{"name":"European Journal of Migration and Law","volume":" ","pages":""},"PeriodicalIF":1.0,"publicationDate":"2023-03-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41676329","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-03-07DOI: 10.1163/15718166-12340143
D. Ivanov, Valeria Viktorovna Pchelitseva
According to the Office of the United Nations High Commissioner for Refugees (UNHCR), the majority of the 5.7 million UNHCR registered refugees from the Syrian Arab Republic (SAR) reside in five Member States of the Organisation of Islamic Cooperation (OIC), namely Egypt, Iraq, Jordan, Lebanon and Turkey. The present study aims to discover the impact of the measures taken by UNHCR, European Union (EU), OIC, and states in question on the durable solution of the problem of externally displaced persons from SAR in accordance with applicable international law. It explores the scope of states’ international law obligations, their concepts of ‘burden sharing’ and ‘durable solution’ as well as legal aspects of the cooperation between the international organisations and states in question. The difference in legal positions of states and international organisations results in the lack of available forms of durable solution to the problem of external displacement from SAR.
{"title":"Durable Solution to the Problem of Externally Displaced Persons from the Syrian Arab Republic in OIC Member States","authors":"D. Ivanov, Valeria Viktorovna Pchelitseva","doi":"10.1163/15718166-12340143","DOIUrl":"https://doi.org/10.1163/15718166-12340143","url":null,"abstract":"\u0000According to the Office of the United Nations High Commissioner for Refugees (UNHCR), the majority of the 5.7 million UNHCR registered refugees from the Syrian Arab Republic (SAR) reside in five Member States of the Organisation of Islamic Cooperation (OIC), namely Egypt, Iraq, Jordan, Lebanon and Turkey. The present study aims to discover the impact of the measures taken by UNHCR, European Union (EU), OIC, and states in question on the durable solution of the problem of externally displaced persons from SAR in accordance with applicable international law. It explores the scope of states’ international law obligations, their concepts of ‘burden sharing’ and ‘durable solution’ as well as legal aspects of the cooperation between the international organisations and states in question. The difference in legal positions of states and international organisations results in the lack of available forms of durable solution to the problem of external displacement from SAR.","PeriodicalId":51819,"journal":{"name":"European Journal of Migration and Law","volume":" ","pages":""},"PeriodicalIF":1.0,"publicationDate":"2023-03-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45124468","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-03-07DOI: 10.1163/15718166-12340142
E. Küçük
The activation of the Temporary Protection Directive has been considered a manifestation of solidarity towards refugees that enhances responsibility sharing between the Member States and is, therefore, perceived as a positive development. Focusing on the specific case of Ukrainian refugees, this paper explores the possible implications of the Temporary Protection Directive from the perspective of asylum solidarity. The purpose of the article is twofold. First, to dispel the assumption that the activation of the Directive is a positive step forward in addressing the Ukraine refugee incidence and challenge the presumed benefits of the Directive in terms of asylum solidarity. Second, the article seeks to explore how the detrimental effects of temporary protection can be mitigated both in the short and long term. It proposes possible solutions to prevent a regression in refugee protection standards through temporary protection and examines how a free choice model can be integrated to remedy some of the shortcomings of the current emergency management system.
{"title":"Temporary Protection Directive: Testing New Frontiers?","authors":"E. Küçük","doi":"10.1163/15718166-12340142","DOIUrl":"https://doi.org/10.1163/15718166-12340142","url":null,"abstract":"\u0000The activation of the Temporary Protection Directive has been considered a manifestation of solidarity towards refugees that enhances responsibility sharing between the Member States and is, therefore, perceived as a positive development. Focusing on the specific case of Ukrainian refugees, this paper explores the possible implications of the Temporary Protection Directive from the perspective of asylum solidarity. The purpose of the article is twofold. First, to dispel the assumption that the activation of the Directive is a positive step forward in addressing the Ukraine refugee incidence and challenge the presumed benefits of the Directive in terms of asylum solidarity. Second, the article seeks to explore how the detrimental effects of temporary protection can be mitigated both in the short and long term. It proposes possible solutions to prevent a regression in refugee protection standards through temporary protection and examines how a free choice model can be integrated to remedy some of the shortcomings of the current emergency management system.","PeriodicalId":51819,"journal":{"name":"European Journal of Migration and Law","volume":" ","pages":""},"PeriodicalIF":1.0,"publicationDate":"2023-03-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41724367","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-03-07DOI: 10.1163/15718166-12340145
Elsa Fernando-Gonzalo
Achieving faster and effective returns of irregular migrants is one of the priorities on the Pact on Migration and Asylum proposed by the European Commission. The Commission links the effectiveness of return to the enforcement of return decisions, which, although limited as an analytical benchmark, show that only 30% of return decisions are successful. To improve this ratio, the EU has recently resorted to informal readmission agreements or arrangements with third countries. Through these instruments, the process for binding international agreements established in the Treaties is bypassed. This type of non-binding instrument, generally covered under the ‘soft law’ label, generates major problems for the core principles of the EU legal order of institutional balance, judicial control, and transparency. The aim of this article is to analyse how these acts affect the three main principles of the legal system in the search for a more effective readmission policy using two case studies as the arrangements with Afghanistan and Bangladesh. The article concludes that the avoidance of the three principles does not result in a higher rate of returns.
{"title":"The EU’s Informal Readmission Agreements with Third Countries on Migration: Effectiveness over Principles?","authors":"Elsa Fernando-Gonzalo","doi":"10.1163/15718166-12340145","DOIUrl":"https://doi.org/10.1163/15718166-12340145","url":null,"abstract":"\u0000Achieving faster and effective returns of irregular migrants is one of the priorities on the Pact on Migration and Asylum proposed by the European Commission. The Commission links the effectiveness of return to the enforcement of return decisions, which, although limited as an analytical benchmark, show that only 30% of return decisions are successful. To improve this ratio, the EU has recently resorted to informal readmission agreements or arrangements with third countries. Through these instruments, the process for binding international agreements established in the Treaties is bypassed. This type of non-binding instrument, generally covered under the ‘soft law’ label, generates major problems for the core principles of the EU legal order of institutional balance, judicial control, and transparency. The aim of this article is to analyse how these acts affect the three main principles of the legal system in the search for a more effective readmission policy using two case studies as the arrangements with Afghanistan and Bangladesh. The article concludes that the avoidance of the three principles does not result in a higher rate of returns.","PeriodicalId":51819,"journal":{"name":"European Journal of Migration and Law","volume":" ","pages":""},"PeriodicalIF":1.0,"publicationDate":"2023-03-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44922752","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-12-09DOI: 10.1163/15718166-12340138
Tesseltje de Lange, Zvezda Vankova
This article discusses the recast Blue Card Directive (BCD) on the admission of highly qualified non-EU migrant workers. The recast Directive aims to facilitate employers in their demand of non-EU talent and enhances migrant workers’ rights. As this article demonstrates, challenges remain in view of the prerogative of Member States to maintain national schemes and benefit from wide discretion. We conclude that if Member States implement the recast restrictively, the recast BCD could be an example of ‘failing forward’, a next step in a continuous process failing to achieve the Commissions’ ambitions of harmonizing EU migration law. Yet, by engaging in a novel legislative approach which we coin ‘encapsulating harmonisation’ of EU and national migration law, the Commission manages to enhance the level playing field aimed for, especially on improving migrant workers’ rights. Whether the Recast BCD will indeed attract more highly qualified migrants to work in the EU, however, will depend on Member States’ implementation and their use of the discretion afforded by the BCD.
{"title":"The Recast EU Blue Card Directive: Towards a Level Playing Field to Attract Highly Qualified Migrant Talent to Work in the EU?","authors":"Tesseltje de Lange, Zvezda Vankova","doi":"10.1163/15718166-12340138","DOIUrl":"https://doi.org/10.1163/15718166-12340138","url":null,"abstract":"\u0000This article discusses the recast Blue Card Directive (BCD) on the admission of highly qualified non-EU migrant workers. The recast Directive aims to facilitate employers in their demand of non-EU talent and enhances migrant workers’ rights. As this article demonstrates, challenges remain in view of the prerogative of Member States to maintain national schemes and benefit from wide discretion. We conclude that if Member States implement the recast restrictively, the recast BCD could be an example of ‘failing forward’, a next step in a continuous process failing to achieve the Commissions’ ambitions of harmonizing EU migration law. Yet, by engaging in a novel legislative approach which we coin ‘encapsulating harmonisation’ of EU and national migration law, the Commission manages to enhance the level playing field aimed for, especially on improving migrant workers’ rights. Whether the Recast BCD will indeed attract more highly qualified migrants to work in the EU, however, will depend on Member States’ implementation and their use of the discretion afforded by the BCD.","PeriodicalId":51819,"journal":{"name":"European Journal of Migration and Law","volume":" ","pages":""},"PeriodicalIF":1.0,"publicationDate":"2022-12-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49260967","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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