Pub Date : 2022-03-04DOI: 10.1163/15718166-12340119
Eleonora Frasca, Francesco Luigi Gatta
This Article summarises the complex ebbs and flows of EU migration law and policy. It is the result of an interdisciplinary research project called GLOBMIG, which includes a legal inventory that can be used by any reader or researcher. In the Article, we focus on the main outcomes observable from the inventory by taking several examples from EU legislation and case law that try to capture the evolution of migration law and governance in Europe during the last four decades. Key issues and their underlying dynamics are explored under three major trends: 1) State sovereignty vs migrants’ individual rights; 2) traditional law-making vs informal pragmatic governance; 3) unilateral vs multilateral migration governance. Each trend confirms the tension, but also the positive interaction, between competing interests as well as period of fluctuations between them. Two earmarks of EU migration law are taken into account: the internal and external dimension layout of migration and asylum law and the relationship between free movement of EU citizens and third country national immigration.
{"title":"Ebbs and Flows of EU Migration Law and Governance: A Critical Assessment of the Evolution of Migration Legislation and Policy in Europe","authors":"Eleonora Frasca, Francesco Luigi Gatta","doi":"10.1163/15718166-12340119","DOIUrl":"https://doi.org/10.1163/15718166-12340119","url":null,"abstract":"\u0000 This Article summarises the complex ebbs and flows of EU migration law and policy. It is the result of an interdisciplinary research project called GLOBMIG, which includes a legal inventory that can be used by any reader or researcher. In the Article, we focus on the main outcomes observable from the inventory by taking several examples from EU legislation and case law that try to capture the evolution of migration law and governance in Europe during the last four decades. Key issues and their underlying dynamics are explored under three major trends: 1) State sovereignty vs migrants’ individual rights; 2) traditional law-making vs informal pragmatic governance; 3) unilateral vs multilateral migration governance. Each trend confirms the tension, but also the positive interaction, between competing interests as well as period of fluctuations between them. Two earmarks of EU migration law are taken into account: the internal and external dimension layout of migration and asylum law and the relationship between free movement of EU citizens and third country national immigration.","PeriodicalId":51819,"journal":{"name":"European Journal of Migration and Law","volume":null,"pages":null},"PeriodicalIF":1.0,"publicationDate":"2022-03-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46483264","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 : 2022-03-04DOI: 10.1163/15718166-12340123
A. Schrauwen
{"title":"EU Citizenship Law and Policy. Beyond Brexit, written by Dora Kostakopoulou","authors":"A. Schrauwen","doi":"10.1163/15718166-12340123","DOIUrl":"https://doi.org/10.1163/15718166-12340123","url":null,"abstract":"","PeriodicalId":51819,"journal":{"name":"European Journal of Migration and Law","volume":null,"pages":null},"PeriodicalIF":1.0,"publicationDate":"2022-03-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43746811","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 : 2022-03-04DOI: 10.1163/15718166-12340122
Ferdinand Wollenschläger
The right of residence of economically inactive Union citizens, as well as their claim to access to social benefits in other EU Member States, constitutes a complex and politically sensitive issue which has been debated controversially in EU law for decades. After some initially dynamic case-law, the CJEU followed a more reserved approach in its Dano judgment that was handed down on 11 November 2014. Its interpretation has however remained controversial, notably in view of the specific facts, the selective discussion of EU secondary law, and the unclear relationship to established as well as to subsequent case-law. Thus, the first follow-up judgment has been awaited with interest. It is the judgment in the CG case handed down on 15 July 2021 and discussed here; it however proves ambivalent. On the one hand, the CJEU has continued its restrictive reading of Free Movement Directive 2004/38/EC, whilst on the other hand the CJEU has activated for the first time, moreover contrary to Dano and with potentially far-reaching consequences, EU fundamental rights as a basis for a claim to social assistance in the host Member State.
{"title":"An EU Fundamental Right to Social Assistance in the Host Member State? The CJEU’s Ambivalent Approach to the Free Movement of Economically Inactive Union Citizens Post Dano","authors":"Ferdinand Wollenschläger","doi":"10.1163/15718166-12340122","DOIUrl":"https://doi.org/10.1163/15718166-12340122","url":null,"abstract":"\u0000 The right of residence of economically inactive Union citizens, as well as their claim to access to social benefits in other EU Member States, constitutes a complex and politically sensitive issue which has been debated controversially in EU law for decades. After some initially dynamic case-law, the CJEU followed a more reserved approach in its Dano judgment that was handed down on 11 November 2014. Its interpretation has however remained controversial, notably in view of the specific facts, the selective discussion of EU secondary law, and the unclear relationship to established as well as to subsequent case-law. Thus, the first follow-up judgment has been awaited with interest. It is the judgment in the CG case handed down on 15 July 2021 and discussed here; it however proves ambivalent. On the one hand, the CJEU has continued its restrictive reading of Free Movement Directive 2004/38/EC, whilst on the other hand the CJEU has activated for the first time, moreover contrary to Dano and with potentially far-reaching consequences, EU fundamental rights as a basis for a claim to social assistance in the host Member State.","PeriodicalId":51819,"journal":{"name":"European Journal of Migration and Law","volume":null,"pages":null},"PeriodicalIF":1.0,"publicationDate":"2022-03-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46837953","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 : 2022-03-04DOI: 10.1163/15718166-12340117
Jean-Pierre Cassarino, L. Marin
Can a part of the territory of the European Union be turned into a “non-territory” where the fundamental rights of the migrants and asylum seekers to appeal and to remain in their destination country while their applications are examined, and the right for an individual assessment in line with international standards, are as it were contracted, owing to the very attributes of this “non-territory”? This article argues that the Pact on Migration and Asylum, in particular with the pre-entry screening and the new border procedures, subtly develops and consolidates policies and rules aimed at “deterritorializing” the territory of the EU while reinforcing its practices of externalization. Moreover, this unprecedented deterritorialization-externalization combination, in order to produce tangible policy results, presupposes the cooperation of third countries on expulsion and readmission, as well as more solidarity among the Member States. Having critically examined these two dimensions, the authors conclude that the new measures contained in the Pact might be conducive to the enhanced precarization of the legal positions of migrants and asylum seekers and to potential tensions with strategic third countries.
{"title":"The Pact on Migration and Asylum: Turning the European Territory into a Non-territory?","authors":"Jean-Pierre Cassarino, L. Marin","doi":"10.1163/15718166-12340117","DOIUrl":"https://doi.org/10.1163/15718166-12340117","url":null,"abstract":"\u0000 Can a part of the territory of the European Union be turned into a “non-territory” where the fundamental rights of the migrants and asylum seekers to appeal and to remain in their destination country while their applications are examined, and the right for an individual assessment in line with international standards, are as it were contracted, owing to the very attributes of this “non-territory”?\u0000 This article argues that the Pact on Migration and Asylum, in particular with the pre-entry screening and the new border procedures, subtly develops and consolidates policies and rules aimed at “deterritorializing” the territory of the EU while reinforcing its practices of externalization. Moreover, this unprecedented deterritorialization-externalization combination, in order to produce tangible policy results, presupposes the cooperation of third countries on expulsion and readmission, as well as more solidarity among the Member States. Having critically examined these two dimensions, the authors conclude that the new measures contained in the Pact might be conducive to the enhanced precarization of the legal positions of migrants and asylum seekers and to potential tensions with strategic third countries.","PeriodicalId":51819,"journal":{"name":"European Journal of Migration and Law","volume":null,"pages":null},"PeriodicalIF":1.0,"publicationDate":"2022-03-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47648610","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 : 2022-03-04DOI: 10.1163/15718166-12340120
Zvezda Vankova
This article focuses on the contested policy idea of utilising labour migration as a complementary pathway for refugees in the EU. Advocates view this as a “triple win” solution that empowers refugees, boosts economies, and supports post-conflict reconstruction. Yet, it re-mains unclear to what extent the EU labour migration acquis provides an adequate basis for such a novel approach. This paper provides a comprehensive assessment by combining an analysis of EU law with empirical data from interviews with international, EU and national stakeholders, such as public officials, employers and NGO s. It argues that such an approach requires amongst others, Member States’ readiness to make existing admission procedures more accessible for refugees, incentives for employers, and willingness of potential candidates for complementary pathways to accept initial limitations of some of the rights they would otherwise enjoy as refugees. The article concludes that despite the policy potential of work-based channels to create access to the EU for people in need of protection, at best a select group of highly-skilled refugees will be able to make use of the EU labour migration acquis in their ‘journey to a durable solution’.
{"title":"Work-Based Pathways to Refugee Protection under EU Law: Pie in the Sky?","authors":"Zvezda Vankova","doi":"10.1163/15718166-12340120","DOIUrl":"https://doi.org/10.1163/15718166-12340120","url":null,"abstract":"\u0000 This article focuses on the contested policy idea of utilising labour migration as a complementary pathway for refugees in the EU. Advocates view this as a “triple win” solution that empowers refugees, boosts economies, and supports post-conflict reconstruction. Yet, it re-mains unclear to what extent the EU labour migration acquis provides an adequate basis for such a novel approach. This paper provides a comprehensive assessment by combining an analysis of EU law with empirical data from interviews with international, EU and national stakeholders, such as public officials, employers and NGO s. It argues that such an approach requires amongst others, Member States’ readiness to make existing admission procedures more accessible for refugees, incentives for employers, and willingness of potential candidates for complementary pathways to accept initial limitations of some of the rights they would otherwise enjoy as refugees. The article concludes that despite the policy potential of work-based channels to create access to the EU for people in need of protection, at best a select group of highly-skilled refugees will be able to make use of the EU labour migration acquis in their ‘journey to a durable solution’.","PeriodicalId":51819,"journal":{"name":"European Journal of Migration and Law","volume":null,"pages":null},"PeriodicalIF":1.0,"publicationDate":"2022-03-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41487860","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 : 2022-03-04DOI: 10.1163/15718166-12340118
Meltem Ineli-Ciger
Resettlement is generally regarded as a permanent or durable solution for refugees. Resettled refugees classically are granted permanent settlement with the opportunity for eventual citizenship. However, this classic understanding might be changing. In 2016, the European Commission proposed a Regulation establishing a Union Resettlement Framework with a view to creating a more structured, harmonized, and permanent framework for resettlement across the Union. According to the Proposal, resettled persons are to be granted either the refugee status or the subsidiary protection status in the Member States. Similar to the Proposal, more and more states including Denmark and the United States grant resettled refugees and other displaced persons statuses that fall short of the refugee status. In light of these recent developments, this article questions whether resettlement is still a permanent and durable solution for refugees. In doing so, the article also examines duties owed by states towards resettled refugees and other forcibly displaced persons in international law and reviews shortcomings of the Commission Proposal for a Regulation establishing a Union Resettlement Framework.
{"title":"Is Resettlement Still a Durable Solution? An Analysis in Light of the Proposal for a Regulation Establishing a Union Resettlement Framework","authors":"Meltem Ineli-Ciger","doi":"10.1163/15718166-12340118","DOIUrl":"https://doi.org/10.1163/15718166-12340118","url":null,"abstract":"\u0000 Resettlement is generally regarded as a permanent or durable solution for refugees. Resettled refugees classically are granted permanent settlement with the opportunity for eventual citizenship. However, this classic understanding might be changing. In 2016, the European Commission proposed a Regulation establishing a Union Resettlement Framework with a view to creating a more structured, harmonized, and permanent framework for resettlement across the Union. According to the Proposal, resettled persons are to be granted either the refugee status or the subsidiary protection status in the Member States. Similar to the Proposal, more and more states including Denmark and the United States grant resettled refugees and other displaced persons statuses that fall short of the refugee status. In light of these recent developments, this article questions whether resettlement is still a permanent and durable solution for refugees. In doing so, the article also examines duties owed by states towards resettled refugees and other forcibly displaced persons in international law and reviews shortcomings of the Commission Proposal for a Regulation establishing a Union Resettlement Framework.","PeriodicalId":51819,"journal":{"name":"European Journal of Migration and Law","volume":null,"pages":null},"PeriodicalIF":1.0,"publicationDate":"2022-03-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41702257","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 : 2022-03-04DOI: 10.1163/15718166-12340121
E. Cunniffe
The figure of the asylum applicant worker sits uncomfortably in the oppositional framing of refugees and economic migrants. Yet, the recast Reception Conditions Directive 2013/33/EU provides a right to work for asylum applicants. Through case studies of Ireland and Sweden, this article examines the implementation of the right to work and describes an assemblage of de lege and de facto barriers that restrict access to the right to work in both Member States. Three legal avenues in EU law are explored to assess their potentiality to better secure this right. While the principle of effectiveness and fundamental rights prove useful, non-discrimination law remains limited in protecting the specific socio-legal status of asylum applicant workers. This article contributes to scholarship on the intersection of migration and labour law and the location of the asylum applicant worker within that intersection.
{"title":"Non-economic Migrants as Workers: Securing the Right to Work for Asylum Applicants in the EU","authors":"E. Cunniffe","doi":"10.1163/15718166-12340121","DOIUrl":"https://doi.org/10.1163/15718166-12340121","url":null,"abstract":"\u0000 The figure of the asylum applicant worker sits uncomfortably in the oppositional framing of refugees and economic migrants. Yet, the recast Reception Conditions Directive 2013/33/EU provides a right to work for asylum applicants. Through case studies of Ireland and Sweden, this article examines the implementation of the right to work and describes an assemblage of de lege and de facto barriers that restrict access to the right to work in both Member States. Three legal avenues in EU law are explored to assess their potentiality to better secure this right. While the principle of effectiveness and fundamental rights prove useful, non-discrimination law remains limited in protecting the specific socio-legal status of asylum applicant workers. This article contributes to scholarship on the intersection of migration and labour law and the location of the asylum applicant worker within that intersection.","PeriodicalId":51819,"journal":{"name":"European Journal of Migration and Law","volume":null,"pages":null},"PeriodicalIF":1.0,"publicationDate":"2022-03-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46015635","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 : 2021-12-21DOI: 10.1163/15718166-12340113
Julien Jeandesboz
Can national authorities perform systematic checks on persons engaged in cross-border travel in the Schengen area without these checks being considered as border checks or as having an equivalent effect to border checks? The present article investigates a specific set of measures that involve the harnessing of “new technology” to enact systematic controls on persons traveling across the internal borders of Schengen states, through the processing of Passenger Name Record (PNR) data and in the framework of the EU PNR Directive. It argues that PNR data processing should at the same time be understood as part of the alternatives to border checks available for Member States to regulate cross-border mobility in the Schengen area and as a standout among these measures. PNR data processing challenges the existing legal framework of Article 23(a) of the Schengen Borders Code (SBC) as well as the assessment framework developed by the CJEU in its relevant case-law, not because it contravenes Schengen rules, but because it stretches and overflows them. Ultimately, PNR data processing puts into question the very understanding of what checks performed in relation to the act or intention of crossing a border actually stand for or whether controls related to border crossings can be characterised as border controls.
{"title":"Ceci n’est pas un contrôle: PNR Data Processing and the Reshaping of Borderless Travel in the Schengen Area","authors":"Julien Jeandesboz","doi":"10.1163/15718166-12340113","DOIUrl":"https://doi.org/10.1163/15718166-12340113","url":null,"abstract":"\u0000Can national authorities perform systematic checks on persons engaged in cross-border travel in the Schengen area without these checks being considered as border checks or as having an equivalent effect to border checks? The present article investigates a specific set of measures that involve the harnessing of “new technology” to enact systematic controls on persons traveling across the internal borders of Schengen states, through the processing of Passenger Name Record (PNR) data and in the framework of the EU PNR Directive. It argues that PNR data processing should at the same time be understood as part of the alternatives to border checks available for Member States to regulate cross-border mobility in the Schengen area and as a standout among these measures. PNR data processing challenges the existing legal framework of Article 23(a) of the Schengen Borders Code (SBC) as well as the assessment framework developed by the CJEU in its relevant case-law, not because it contravenes Schengen rules, but because it stretches and overflows them. Ultimately, PNR data processing puts into question the very understanding of what checks performed in relation to the act or intention of crossing a border actually stand for or whether controls related to border crossings can be characterised as border controls.","PeriodicalId":51819,"journal":{"name":"European Journal of Migration and Law","volume":null,"pages":null},"PeriodicalIF":1.0,"publicationDate":"2021-12-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49376089","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 : 2021-12-21DOI: 10.1163/15718166-12340110
S. Mantu
This special issue builds on a seminar organised by the Centre for Migration Law (Radboud University, the Netherlands) on 4 November 2020 that set out to reflect on the relationship between Schengen and its free movement regime in the context of two crises: firstly, the so-called 2015 migration crisis that led to the reintroduction of internal border controls to deal with pressures at the external borders of the EU and secondary movements, and secondly, the 2020 COVID-19 crisis that prompted the majority of Schengen states to reintroduce internal border controls as part of their efforts to prevent the spread of the virus. Although ‘crisis’ and ‘reform’ are routinely associated with the Schengen system,1 its resilience stands out, too. Rather than seeing crises as leading to the demise of the Schengen system, they seem to function more as productive moments leading to new forms of governance and new practices.2 The articles of this special issue reflect on how Schengen’s crises have reshaped some of its founding principles, its operation and governance, while paying particular attention to the position of individuals and their rights. The reintroduction of internal border controls in the Schengen area is neither novel nor exceptional, but the scale upon which this has happened in the context of the Corona pandemic is new. According to a recent European Parliamentary Research Service briefing on the Schengen Borders Code (SBC), compared to the period 2006–2014, when internal border controls were
{"title":"Schengen, Free Movement and Crises: Links, Effects and Challenges","authors":"S. Mantu","doi":"10.1163/15718166-12340110","DOIUrl":"https://doi.org/10.1163/15718166-12340110","url":null,"abstract":"This special issue builds on a seminar organised by the Centre for Migration Law (Radboud University, the Netherlands) on 4 November 2020 that set out to reflect on the relationship between Schengen and its free movement regime in the context of two crises: firstly, the so-called 2015 migration crisis that led to the reintroduction of internal border controls to deal with pressures at the external borders of the EU and secondary movements, and secondly, the 2020 COVID-19 crisis that prompted the majority of Schengen states to reintroduce internal border controls as part of their efforts to prevent the spread of the virus. Although ‘crisis’ and ‘reform’ are routinely associated with the Schengen system,1 its resilience stands out, too. Rather than seeing crises as leading to the demise of the Schengen system, they seem to function more as productive moments leading to new forms of governance and new practices.2 The articles of this special issue reflect on how Schengen’s crises have reshaped some of its founding principles, its operation and governance, while paying particular attention to the position of individuals and their rights. The reintroduction of internal border controls in the Schengen area is neither novel nor exceptional, but the scale upon which this has happened in the context of the Corona pandemic is new. According to a recent European Parliamentary Research Service briefing on the Schengen Borders Code (SBC), compared to the period 2006–2014, when internal border controls were","PeriodicalId":51819,"journal":{"name":"European Journal of Migration and Law","volume":null,"pages":null},"PeriodicalIF":1.0,"publicationDate":"2021-12-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47611031","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 : 2021-12-21DOI: 10.1163/15718166-02304008
{"title":"Back matter","authors":"","doi":"10.1163/15718166-02304008","DOIUrl":"https://doi.org/10.1163/15718166-02304008","url":null,"abstract":"","PeriodicalId":51819,"journal":{"name":"European Journal of Migration and Law","volume":null,"pages":null},"PeriodicalIF":1.0,"publicationDate":"2021-12-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45970762","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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