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European Migration Law (Oxford European Union Law Library)
0192894277, 9780192894274

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Prof Daniel Thym

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OXFORD EU LAW LIBRARY General Editors ROBERT SCHÜTZE Professor of European and Global Law, Durham Law School and Co-Director, Global Policy Institute, Durham Law School PIET EECKHOUT Professor of EU Law and Dean of the Faculty of Laws, UCL, and Academic Director of the European Institute

European Migration Law

OX F O R D E U L AW L I B R A RY The aim of the series is to publish important and original studies of the various branches of EU law. Each work provides a clear, concise, and critical exposition of the law in its social, economic, and political context, at a level which will interest the advanced student, the practitioner, the academic, and government officials. OTHER TITLES IN THIS SERIES EU Securities and Financial Markets Regulation Fourth Edition Niamh Moloney

EU Procedural Law Koen Lenaerts, Ignace Maselis, Kathleen Gutman, Janek Tomasz Nowak

EU Diplomatic Law Sanderijn Duquet

The EU Common Security and Defence Policy Panos Koutrakos

EU Constitutional Law Koen Lenaerts, Piet Van Nuffel, Tim Corthaut

EU Anti-Discrimination Law Second Edition Evelyn Ellis and Philippa Watson

EU Customs Law Third Edition Timothy Lyons

EU Employment Law Fourth Edition Catherine Barnard

Principles and Practice in EU Sports Law Stephen Weatherill

EU External Relations Law Second Edition Piet Eeckhout

EU Justice and Home Affairs Law Fourth Edition Steve Peers

The EU Common Fisheries Policy Robin Churchill and Daniel Owen

European Migration Law DA N I E L T H YM

Great Clarendon Street, Oxford, OX2 6DP, United Kingdom Oxford University Press is a department of the University of Oxford. It furthers the University’s objective of excellence in research, scholarship, and education by publishing worldwide. Oxford is a registered trade mark of Oxford University Press in the UK and in certain other countries © Daniel Thym 2023 The moral rights of the author have been asserted First Edition published in 2023 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission in writing of Oxford University Press, or as expressly permitted by law, by licence or under terms agreed with the appropriate reprographics rights organization. Enquiries concerning reproduction outside the scope of the above should be sent to the Rights Department, Oxford University Press, at the address above You must not circulate this work in any other form and you must impose this same condition on any acquirer Public sector information reproduced under Open Government Licence v3.0 (http://www.nationalarchives.gov.uk/doc/open-government-licence/open-government-licence.htm) Published in the United States of America by Oxford University Press 198 Madison Avenue, New York, NY 10016, United States of America British Library Cataloguing in Publication Data Data available Library of Congress Control Number: 2023936578 ISBN 978–0–19–289427–4 DOI: 10.1093/oso/9780192894274.001.0001 Printed and bound in the UK by TJ Books Limited Links to third party websites are provided by Oxford in good faith and for information only. Oxford disclaims any responsibility for the materials contained in any third party website referenced in this work.

Acknowledgements This book builds upon more than two decades of experience with European migration law and policy. Numerous friends and colleagues have informed my thinking on this complex and controversial topic ever since I started writing my PhD at the Walter Hallstein Institute for European Constitutional Law at Humboldt University in Berlin in the early 2000s. An important change came when I was appointed full Professor of Public, European, and International Law at the University of Konstanz ten years later, as the successor to Kay Hailbronner who was a prominent participant in the foundational period of European migration law. To be not primarily a German academic, writing in the national language for a domestic audience, had always been my aspiration as well. The dynamic and interdisciplinary atmosphere in Konstanz proved a perfect academic base to do so. Membership in the transnational Odysseus Network, coordinated by Philippe De Bruycker, equally supports a pan-European outlook. I am indebted to friends and colleagues with whom I have discussed migration law throughout all these years. Anyone reading the book will realise that my analysis moves beyond questions of legal interpretation by considering both the policy concept and the theoretical positions that lie beneath. Doing so is not self-evident for someone who studied law on the continent. I benefited greatly from my involvement in the interdisciplinary Clusters of Excellence ‘Cultural Foundations of Cultural Integration’ and ‘The Politics of Inequality’ at the University of Konstanz. Similarly, I learnt new perspectives during the seven years I served as a member and vice-chairperson of the German Expert Council on Integration and Migration, an independent advisory body in Berlin. Our annual reports covered diverse issues such as asylum, labour migration, integration, diversity, and relations with Africa. Equally instructive were ongoing discussions with journalists and regular appearances as an expert witness in the home affairs committee of the German parliament in the hectic years following the events of 2015/16. Over the years, I became acquainted with a rich arsenal of research questions, practical challenges, and methodological approaches. Few people have the luxury of being able to consider these multiple experiences at an intermediate level of abstraction. Writing this book allowed me to do precisely this. My home university generously supported this venture with a supplementary sabbatical, which I spent in the inspiring and charming environment of the European University Institute in Florence, just before another round of lockdowns during the Covid-19 pandemic. They interrupted the usual travel circuit and brought back the intimate atmosphere of the academic study room, where I spent endless days and evenings writing the manuscript. My partner deserves praise for having accepted my repeated assurances of ‘just one more hour’ again and again. Generations of student assistants have accumulated countless articles, book chapters, and other documents as print copies or as digital files. They go unnamed, but their relentless efforts are much appreciated indeed. Our university library must have one of the most comprehensive collections of European migration law by now. The research assistants at my university chair invested time and energy in adapting the references to the OSCOLA

vi Acknowledgements style guide. Sabine Gerber did a wonderful job in coordinating the different activities and supporting me on the administrative front. Without her valuable work, this book could not have been written besides all my other obligations. Finally, I am grateful to Oxford University Press for having accepted this contribution to the EU Law Library Series and for having accompanied the production process diligently. Once my literary ‘baby’ is born, it will be up to readers to receive it as a new player in the world of migration law and policy. Any kind of feedback is welcome (daniel.thym@uni-konstanz.de). The highly dynamic nature of this object of analysis calls for a reasonably swift second edition for sure. Konstanz February 2023

Summary Contents Table of Cases Table of EU Legislation List of Abbreviations Introduction

xxi xxxi xliii 1

PA RT I OV E R A R C H I N G T H E M E S 1. Building an Area of Freedom, Security, and Justice

13

2. Institutional Prerogatives and Decision-making

42

3. Court of Justice: Achievements and Limitations

69

4. Interdisciplinary Perspectives and Methodology

96

5. Human Rights and State Sovereignty

122

6. Doctrinal Foundations of the Case Law

150

7. Administrative Dimension

172

8. Agencies (Frontex and Asylum Agency)

197

9. Databases

223

PA RT I I SE C T O R A L L E G I SL AT IO N A N D P O L IC I E S 10. General Features of EU Legislation

253

11. Visa Policy

280

12. Border Controls

301

13. Common European Asylum System

337

14. Legal Migration

427

15. Integration and Settlement

469

16. Irregular Presence and Return

505

17. Association Agreements with Neighbours

550

18. International Cooperation with Third States

570

Bibliography Index

597 635

Contents Table of Cases Table of EU Legislation List of Abbreviations Introduction: European Migration Law as a Field of Inquiry

xxi xxxi xliii 1

PA RT I OV E R A R C H I N G T H E M E S 1. Building an Area of Freedom, Security, and Justice 1.1 From International to EU Migration Law

13 14

1.2 Towards Distinct Policies for Third Country Nationals

24

1.3 Distinguishing Union Citizenship from Third Country Nationals

33

1.4 Summary

40

1.1.1 Parallelism of emigration, imperialism, and tourism 1.1.2 Migration law as a by-product of state formation 1.1.3 Towards international protection for refugees 1.1.4 Prehistory of EU rules on labour migration 1.1.5 Free movement within the single market 1.1.6 Colonial migration: the downside of free movement 1.1.7 Theoretical ambiguity of Union citizenship

1.2.1 ‘Schengen’: compensatory logic 1.2.2 Treaty of Maastricht: fragile intergovernmental cooperation 1.2.3 Treaty of Amsterdam: gradual supranationalisation 1.2.4 Treaty of Lisbon: autonomy of migration law 1.2.5 European Council: political programming 1.2.6 Public discourse between ‘fortress Europe’ and ‘common values’

1.3.1 Primary law: open-ended Treaty objectives 1.3.2 Legislative leeway within the confines of human rights 1.3.3 Overlap with Union citizenship 1.3.4 Tipping points in the legislative process

14 16 17 18 20 20 22 24 26 27 29 29 31 34 35 37 39

2. Institutional Prerogatives and Decision-making 2.1 Driving Forces behind Europeanisation

42 42

49

2.1.1 The choice for Schengen as an example 2.1.2 Continuity of mixed results in migration policy 2.1.3 From ‘permissive consensus’ to ‘constraining dissensus’ 2.1.4 The danger of institutional blockage

2.2 Influence on the Policy Output

2.2.1 Commission 2.2.1.1 Civil servants between expertise and politics 2.2.1.2 Technocratic posture on migration law 2.2.2 European Council 2.2.3 Council

43 44 46 47 49 49 50 51 52

x Contents 2.2.3.1 The ‘backroom’: working parties of national civil servants 2.2.3.2 Consensus culture in the shadow of majority voting 2.2.4 European Parliament 2.2.4.1 Committees as the ‘engines’ of parliamentary impact 2.2.4.2 Shifting positions on migration law

52 53 54 55 55

2.3 Interinstitutional Practices

56

2.4 Differentiated Integration: Opt-outs after Brexit

63

2.5 Summary

67

2.3.1 Treaty change: limited relevance 2.3.2 Secondary legislation: prevalence of informal ‘trilogues’ 2.3.3 Curtailment of delegated and implementing acts 2.3.4 Ancillary role of ‘soft law’ 2.3.5 International cooperation: side-effects of informalisation 2.3.6 Private actors: a democratic virtue for migration law?

2.4.1 Denmark: the long shadow of the referenda 2.4.2 Ireland: relic of British reticence

56 57 58 59 60 61 64 65

3. Court of Justice: Achievements and Limitations 3.1 Influence of the Court Architecture

69 69

3.2 Constitutional Authority of the Supranational Judiciary

74

3.3 Access to and Output in the Area of Migration

79

3.4 Alternative Accountability Mechanisms

90

3.5 Summary

94

3.1.1 Collective and multi-lingual adjudication 3.1.2 Horizontal outlook beyond migration law 3.1.3 Frontex, Asylum Agency, and the pitfalls of specialised tribunals 3.1.4 Non-governmental organisations and the limits of third party intervention

3.2.1 Reputation of ‘constitutional imagination’ 3.2.2 Migration law: ‘administrative mindset’ 3.2.3 Interaction with the legislature

3.3.1 Validity disputes 3.3.1.1 Direct actions by individuals on migratory matters 3.3.1.2 Privileged access by the EU institutions 3.3.2 Infringement proceedings 3.3.2.1 Importance of the pre-litigation stage 3.3.2.2 Changing dynamics in migration law 3.3.3 Preliminary references 3.3.3.1 Stark discrepancies between the Member States 3.3.3.2 Carrots and sticks for loyal cooperation 3.3.3.3 Between micromanagement and vagueness 3.3.4 ‘Demand’ side 3.3.4.1 Thematic asymmetries in migration law 3.3.4.2 Strategic litigation to the benefit of migrants

3.4.1 Accountability for wrongdoing beyond courts 3.4.2 Ombudspersons as vehicles of administrative control 3.4.3 Financial and managerial accountability 3.4.4 Political oversight by parliaments 3.4.5 Access to documents as a source of public debates

70 71 72 73 75 76 77 79 79 80 80 81 81 83 83 85 86 87 87 89 90 91 92 93 94

Contents xi

4. Interdisciplinary Perspectives and Methodology 4.1 Drivers of Migratory Movements

4.1.1 Numerous ‘push’ and ‘pull’ factors 4.1.2 Migration as a process over time 4.1.3 Intermediate level: networks, regimes, and infrastructures 4.1.4 Continuum of ‘voluntary’ and ‘forced’ migration

4.2.1 Normative background: the open borders debate 4.2.2 Explaining the ‘control gap’: the liberal paradox 4.2.3 Public opinion and intergroup threat perceptions 4.2.4 Multiple actors of migration governance 4.2.5 Individual migrant agency

4.3.1 Starting point: Foucault and constructivism 4.3.2 ‘Labels’ as a means of government 4.3.3 Language between ‘abuse’, ‘crisis’, and ‘normality’ 4.3.4 Securitisation versus rights-based approach

4.4.1 Academic discourse: from enthusiasm to scepticism 4.4.2 Between ‘black letter’ and doctrinal constructivism 4.4.3 Interdisciplinary and critical approaches

96 96

97 99 101 102

4.2 Significance of State Measures

103

4.3 Law as an Instrument of Government

110

4.4 Legal Methodology between Doctrine and Critique

115

4.5 Summary

120

5. Human Rights and State Sovereignty 5.1 ‘Aliens Law’ as Protection qua Nationality

5.1.1 Historic minimum standards as inter-state obligations 5.1.2 Limited impact of the conventions of the Council of Europe 5.1.3 Reduction of statelessness as a legal obligation

5.2.1 Individual guarantees for ‘everyone’ 5.2.2 Hanna Arendt and the ‘right to have rights’ 5.2.3 Normative counterweight to state sovereignty

5.3.1 Judicial dynamism in the field of migration 5.3.2 Focus on general principles and the Grand Chamber 5.3.3 Interaction with EU law

5.4.1 More generous protection 5.4.2 Rights of the child as an example 5.4.3 EU not a ‘human rights organisation’ 5.4.4 Limited scope of application of the Charter

5.5.1 Plethora of human rights treaty bodies 5.5.2 Potential source of dynamism in the field of migration 5.5.3 Special rapporteurs and diplomatic initiatives 5.5.4 Global Compacts for Migration and on Refugees

5.6.1 Interaction with Union law 5.6.2 Supporting role in the judicial practice 5.6.3 Practical priority of human rights

104 105 106 107 109 110 111 112 114 115 116 118

122 123

123 124 126

5.2 Human Rights qua Personhood

127

5.3 Lead Function of the European Convention

130

5.4 Added Value of the Charter

134

5.5 Complementary Role of International Bodies and Political Fora

139

5.6 Refugee Convention: Distant Lodestar

143

5.7 Summary

148

127 128 129 130 132 133 134 135 136 137 139 140 141 142 143 145 147

xii Contents

6. Doctrinal Foundations of the Case Law 6.1 ‘Legal Order’ as Doctrinal Self-sufficiency 6.2 The Promise and Limits of Coherence

150 150 152

6.3 Constitutional Essentials in Migration Law

155

6.4 Pitfalls of the Interpretative Exercise

158

6.5 Individual Rights of Migrants

163

6.6 Practical Tips for Dealing with the Case Law 6.7 Summary

169 170

7. Administrative Dimension 7.1 European Migration Law as a Composite System

172 173

7.2 National Procedural Autonomy and Its Limits

179

7.3 Transnational Effects of Horizontal Cooperation

187

7.4 Money as a Means of Governance 7.5 Summary

191 195

6.2.1 Legislative fragmentation 6.2.2 Vision of an ‘immigration code’ 6.2.3 Interpretative approximation

6.3.1 Direct effect and primacy as an everyday practice 6.3.2 No categorical distinction between directives and regulations 6.3.3 Subsidiarity as political preference

6.4.1 Multilingualism of EU migration law 6.4.2 Revival of the drafting history 6.4.3 Indeterminacy of teleological interpretation 6.4.4 Autonomous concepts and their limits 6.4.5 Effet utile as a useful doctrinal tool

6.5.1 Individual rights enshrined in legislation 6.5.2 Added valued in comparison to human rights 6.5.3 Ambiguous Court practice on the Charter 6.5.3.1 Interpretation in conformity with human rights 6.5.3.2 Silence or vagueness on the Charter 6.5.4 Scope of the right to an effective remedy

7.1.1 Conceptual vagueness of ‘areas’ and ‘systems’ 7.1.2 Multiplicity of actors at different levels 7.1.3 Operational character of asylum and border controls 7.1.4 Diverse avenues of inter-state cooperation

7.2.1 The many faces of procedural harmonisation 7.2.2 Effectiveness as a corrective vehicle 7.2.2.1 Court practice on migration law 7.2.2.2 Time limits as a test case 7.2.3 Fundamental right to an effective remedy 7.2.3.1 Availability of legal remedies 7.2.3.2 Scope of judicial oversight 7.2.3.3 Suspensive effect and legal assistance 7.2.4 Good administration 7.2.4.1 Giving reasons and right to be heard 7.2.4.2 Consequences of procedural deficits

7.3.1 Visas and databases: rules in secondary legislation 7.3.2 Entry bans: failure of inter-state consultation 7.3.3 Intra-EU mobility: ‘golden visas’ as an abusive practice?

152 153 154 155 156 157 158 159 160 162 163 164 164 166 166 166 168

173 175 176 177 179 180 181 182 182 183 183 184 185 185 186 188 189 191

Contents xiii

8. Agencies (Frontex and Asylum Agency) 8.1 Theory and Policy Design

197 198

8.2 Constitutional Foundations

203

8.3 Frontex: Institutional Muscle Formation

207

8.4 Asylum Agency: Latecomer with Subtle Influence

211

8.5 Accountability for Wrongdoing

214

8.6 Summary

221

8.1.1 Elusive vision of administrative centralisation 8.1.2 The choice for Frontex and the Asylum Office 8.1.3 Formal expansion of the mandates 8.1.4 Exponential growth in practice

8.2.1 Involvement in administrative decision-making 8.2.2 ‘Meroni’ doctrine: no decisive hurdle 8.2.3 Territorial scope

8.3.1 Operational powers 8.3.2 Supervision of the Member States 8.3.3 Cooperation with third states 8.3.4 Eurosur and procurement of equipment

8.4.1 Information gathering and practical guidance 8.4.2 Operational support in ‘hotpots’ and beyond 8.4.3 Supervision and international cooperation

8.5.1 Legislative provisions on agency involvement 8.5.2 Institutional governance 8.5.3 Legal remedies for composite procedures

198 200 201 202 203 205 206 207 208 209 210 211 212 214 215 217 218

9. Databases 9.1 Theory and Policy Design

223 224

9.2 Constitutional Foundations

227

9.3 An Overview of Migration Databases

230

9.4 Prospect of Interoperability and Artificial Intelligence

236

9.5 Respect for Data Protection Standards

243

9.6 Summary

248

9.1.1 Information technology as ‘invisible’ infrastructure 9.1.2 ‘Function creep’ over three decades

9.2.1 Supranational competences 9.2.2 Decentralised network structure 9.2.3 Territorial scope

9.3.1 Schengen Information System (SIS) 9.3.2 Eurodac 9.3.3 Visa Information System (VIS) 9.3.4 Travel authorisation (ETIAS) 9.3.5 Entry/Exit System (EES)

9.4.1 From support to automated processing 9.4.2 Quality concerns and implementation deficits 9.4.3 The spectre of ‘interoperability’

9.5.1 Principles of data protection 9.5.2 Core elements of the human rights assessment 9.5.3 Preventive and reactive supervision

224 225 227 228 228 230 232 233 234 236 237 239 241 243 244 247

xiv Contents

PA RT I I SE C T O R A L L E G I SL AT IO N A N D P O L IC I E S 10. General Features of EU Legislation 10.1 Acquisition of Residence Permits

253 254

10.2 Sufficient Resources Requirement 10.3 Public Policy Exception

257 258

10.4 Equal Treatment as a Constitutional Guarantee

262

10.5 Proportionality

267

10.6 More Favourable Domestic Rules

270

10.1.1 Of ‘residence permits’ and ‘visas’ 10.1.2 Constitutive state authorisation 10.1.3 Fee levels 10.3.1 Overlap with Union citizenship 10.3.2 Sector-specific outcomes

10.4.1 Human rights instead of Union citizenship 10.4.2 Different scrutiny levels in the judicial practice 10.4.3 Distinctions based on migration status 10.4.4 Racial and ethnic discrimination 10.5.1 Context-specific outcomes 10.5.2 Abstract or individual assessment? 10.6.1 Identification of mandatory provisions 10.6.2 Different patterns in secondary legislation

10.7 Exceptional Non-Compliance (Article 72 TFEU) 10.8 Abusive Practices 10.9 Practical Tips for Dealing with Legislation 10.10 Summary

254 255 256 259 260 262 264 265 266 267 269 270 271

273 275 276 278

11. Visa Policy 11.1 Theory and Policy Design 11.2 Constitutional Foundations

280 281 282

11.3 Visa Requirements

283

11.4 Visa Procedure

288

11.5 Special Case: Humanitarian Visas 11.6 Other Pre-arrival Measures

294 295

11.7 Summary

299

11.2.1 Supranational competences 11.2.2 Territorial scope 11.3.1 Rationale behind ‘black’ and ‘white’ lists 11.3.2 Visa liberalisation as a bargaining chip 11.3.3 Reciprocity in relations with third states 11.4.1 Admission criteria 11.4.2 Application procedure 11.4.3 Decision and legal remedies 11.4.4 Visa format 11.4.5 Inter-state cooperation 11.6.1 Carrier sanctions 11.6.2 Export of visa policy to transit countries 11.6.3 Liaison officers abroad

282 282 283 285 287 288 290 291 292 292 295 297 298

Contents xv

12. Border Controls 12.1 Theory and Policy Design

301 302

12.2 Constitutional Foundations

305

12.3 Schengen Governance

311

12.4 Internal Movements within the Schengen Area

316

12.5 External Controls at Crossing Points

324

12.6 Surveillance of the External Borders

328

12.7 Document Security 12.8 Summary

334 335

12.1.1 Symbolic weight of borders 12.1.2 Incomplete ‘territorialisation’ of the EU 12.1.3 Towards a new ‘culture’ of border controls

12.2.1 Supranational competences 12.2.2 Extraterritorial reach of human rights 12.2.3 Search and rescue at sea 12.2.4 Rejection at the border 12.2.4.1 Right to asylum and prohibition of refoulement 12.2.4.2 Prohibition of collective expulsion 12.2.5 Territorial scope

12.3.1 Membership and phased implementation 12.3.2 Crises and reform efforts 12.3.3 Scope of the ‘Schengen acquis’

12.4.1 Circulation of third country nationals 12.4.1.1 Free travel for short stays 12.4.1.2 Secondary movements of asylum applicants 12.4.2 Internal border controls 12.4.2.1 Requirements for temporary reintroduction 12.4.2.2 Extensive and illegal state practice 12.4.3 Police checks in border areas

12.5.1 Entry conditions 12.5.2 Checks on persons 12.5.3 Refusal of entry and legal remedies 12.5.4 Local border traffic

12.6.1 Land borders 12.6.2 Interaction with asylum law 12.6.3 Sea borders 12.6.3.1 Sea Borders Regulation 12.6.3.2 Basic procedural safeguards

302 303 304

305 306 308 309 309 310 311 312 313 315 317 317 318 319 319 320 322 324 325 327 328 329 330 331 332 333

13. Common European Asylum System 13.1 Theory and Policy Design

337 338

349

13.1.1 A history of half-hearted commitment 13.1.2 Early years of intergovernmental cooperation 13.1.3 First and second phase of harmonisation 13.1.4 Policy crisis of 2015/16 13.1.5 Elusive reform efforts 13.1.6 Geopolitics enter the political equation 13.1.7 Structural deficits and their fallout

13.2.1 Supranational competences

13.2 Constitutional Foundations

338 339 341 342 344 345 347 349

xvi Contents 13.2.2 Prohibition of refoulement 13.2.3 Right to asylum 13.2.3.1 Article 18 CFR 13.2.3.2 Protocol on Union citizens 13.2.4 Solidarity (Article 80 TFEU) 13.2.5 Territorial scope

351 353 353 354 355 357

13.3 Asylum Jurisdiction

357

13.4 Asylum Procedures

372

13.5 Refugee Status

386

13.6 Subsidiary and Complementary Protection

400

13.3.1 Origin of the first entry rule 13.3.2 Futile quest for solidarity 13.3.3 Hierarchy of the substantive criteria 13.3.4 Scope and procedure 13.3.5 Take charge/back requests 13.3.6 Mutual trust and its limits 13.3.7 Secondary movements and the transfer of jurisdiction

13.4.1 Access to the procedure 13.4.2 Personal interview and individualised assessment 13.4.3 Sixfold procedural differentiation 13.4.3.1 Asylum jurisdiction and admissibility 13.4.3.2 Regular and accelerated examination 13.4.3.3 Subsequent applications and withdrawal 13.4.4 Border procedures 13.4.5 Safe countries 13.4.5.1 Safe countries of origin and common lists 13.4.5.2 Rebuttal of the presumption of safety 13.4.5.3 Controversies about safe third countries 13.4.6 Legal remedies 13.4.7 Recurring ‘vision’: external processing 13.5.1 Preventing disparate recognition quotas 13.5.2 Standards and burden of proof 13.5.3 Notion of persecution 13.5.3.1 Severe violation of basic human rights 13.5.3.2 Refugees sur place and family members 13.5.3.3 Poverty 13.5.3.4 Climate change 13.5.4 Actors of protection 13.5.4.1 Home state and international organisations 13.5.4.2 Internal protection alternative 13.5.5 Reasons for persecution 13.5.5.1 Membership of a particular social group 13.5.5.2 Refusal to perform military service 13.5.6 Exclusion and cessation 13.5.6.1 Palestinian refugees 13.5.6.2 Terrorism and other serious crime 13.5.6.3 Change of circumstance in the home state

13.6.1 Added value of Europeanisation 13.6.2 Protection against indiscriminate violence 13.6.3 Other scenarios: divergence from human rights

358 360 362 364 365 368 370 373 374 376 376 377 378 379 381 381 382 383 384 385 387 388 390 390 392 392 393 394 394 395 396 396 397 398 398 399 400 400 401 403

Contents xvii

13.6.4 ‘Complementary’ protection under national laws

403

13.7 Temporary Protection

405

13.8 Reception Conditions for Asylum Applicants

410

13.9 Rights of Beneficiaries of International Protection

415

13.7.1 Rationale behind blanket recognition 13.7.2 Conditions and contents of temporary protection 13.7.3 Interaction with EU migration law 13.8.1 Protracted differences between the Member States 13.8.2 Living conditions and other guarantees 13.8.3 Restrictions and human rights compliance 13.8.4 Right to remain and ‘fiction of non-entry’ 13.9.1 Limits of equal treatment 13.9.2 Specific guarantees 13.9.3 Free movement and option of ‘uniform status’ 13.9.4 Refugees without protection status

405 406 408 410 411 412 414 415 416 417 418

13.10 Resettlement and Other Legal Pathways

420

13.11 Summary

424

13.10.1 Soft side of asylum policy 13.10.2 EU resettlement framework 13.10.3 Other protracted entry procedures

420 421 423

14. Legal Migration 14.1 Theory and Policy Design

427 428

14.2 Constitutional Foundations

435

14.3 Family Reunification

440

14.4 Skilled Labour Migration

448

14.1.1 ‘Guest workers’ outside the reach of EU institutions 14.1.2 Family bonds as a critical gateway 14.1.3 Globalisation and the ‘battle’ over labour migration 14.1.4 Sectoral approach to economic migration 14.1.5 Limits of Europeanisation 14.1.6 Effects on the welfare state 14.2.1 Supranational competences 14.2.2 National prerogatives for labour migration 14.2.3 Human rights, family life, and rights of the child 14.2.4 Territorial scope

14.3.1 EU citizens and their family members 14.3.2 Scope of the Family Reunification Directive 14.3.2.1 Limitation to the nuclear family 14.3.2.2 Optional clauses 14.3.3 Conditions under the Directive 14.3.4 Procedure and rights of family members 14.3.5 Beneficiaries of international protection 14.4.1 Regulatory toolbox and driving forces beyond the law 14.4.2 Blue Card Directive 14.4.2.1 Personal and thematic scope 14.4.2.2 Procedure and rights of blue card holders 14.4.3 Students and Researchers Directive 14.4.3.1 Students as ‘ideal immigrants’ 14.4.3.2 Delegation of responsibility to research organisations

428 429 431 432 433 434 436 437 438 439 440 443 443 444 445 445 447

448 450 450 452 453 453 454

xviii Contents

14.4.4 Single Permit Directive 14.4.5 Vexed issue of intra-European mobility

14.5.1 Posted workers in the single market 14.5.2 GATS and other trade agreements 14.5.3 Inter-Corporate Transfers Directive 14.5.4 Seasonal Workers Directive 14.5.5 Legal pathways for economic purposes

455 456

14.5 Temporary Economic Activities

458

14.6 Summary

466

459 460 461 463 464

15. Integration and Settlement 15.1 Theory and Policy Design

469 470

15.2 Constitutional Foundations

476

15.3 Equality Provisions in Secondary Legislation

479

15.4 Mandatory Integration Requirements

487

15.5 Other Integration Measures 15.6 Long-Term Residents Directive

492 494

15.7 Acquisition of Nationality

498

15.8 Summary

503

15.1.1 From ‘denizenship’ to citizenship 15.1.2 Models of migrant integration 15.1.3 Disputes over the direction of EU migration law 15.1.4 Status change in multiple directions 15.1.5 Mixed output in migration law and beyond

15.2.1 Scope of supranational competences 15.2.2 Human rights protection against expulsion 15.2.3 Territorial scope

15.3.1 Complexity of the legislative framework 15.3.2 Overarching doctrinal characteristics 15.3.3 Social security other benefits 15.3.3.1 Exclusion from social assistance and advantages 15.3.3.2 Human rights compliance 15.3.4 Disparate effects of equal treatment 15.3.5 Distinctions between refugees and subsidiary protection

15.4.1 Proliferation and significance of domestic laws 15.4.2 Supranational legal framework 15.4.3 Judicial endorsement, subject to a caveat

15.6.1 Independence from the original purpose 15.6.2 Scope and conditions 15.6.3 Procedure and loss

15.7.1 Conceptual lacuna of EU migration law 15.7.2 Member State prerogatives and their limits under EU law 15.7.3 ‘Golden passport’ schemes

470 472 473 474 475 477 477 478 479 481 482 482 484 484 486 488 489 491 494 496 497 499 500 502

16. Irregular Presence and Return 16.1 Theory and Policy Design

505 505

509

16.1.1 Beyond binary conceptions of (il)legality 16.1.2 Relentless search for effectiveness 16.1.3 Contrasting policy dynamics

16.2 Constitutional Foundations

506 507 508

Contents xix

16.2.1 Supranational competences 16.2.2 Detention in conformity with human rights 16.2.3 Human rights of those irregularly present 16.2.4 Territorial scope

16.3.1 Prosecution of ‘smuggling’ 16.3.2 Intimidation of search and rescue 16.3.3 Limits for criminal sanctions 16.3.4 Victims of trafficking 16.3.5 Employer sanctions

16.4.1 Refusal for different reasons 16.4.2 Entry bans under the Return Directive

16.5.1 Reasons for illegal stay 16.5.2 Exceptions from the scope 16.5.3 Return decision 16.5.4 Voluntary departure and removal 16.5.5 Limbo of ‘non-removable’ returnees

16.6.1 Mutual recognition of expulsion decisions 16.6.2 Cooperation between the Member States 16.6.3 Return to other Member States 16.6.4 Readmission agreements with third states

510 511 513 514

16.3 Criminalisation of Illegal Entry and Stay

514

16.4 Bans on Entry and Stay

524

16.5 Structure of the Return Directive

526

16.6 Inter-state Cooperation

533

16.7 Detention

539

16.8 Regularisation 16.9 Summary

546 547

16.7.1 Delimitation of EU legislation 16.7.2 Grounds for detention 16.7.2.1 Risk of absconding 16.7.2.2 Other criteria for asylum seekers 16.7.2.3 Additional grounds for returnees 16.7.3 Alternatives and length 16.7.4 Conditions of detention

515 517 518 520 522 524 525 527 528 528 530 532 534 535 536 537 539 540 541 542 543 544 545

17. Association Agreements with Neighbours 17.1 Constitutional Foundations

550 551

17.2 ‘Best friends’: European Economic Area and Switzerland

555

17.3 United Kingdom: Reversed Dynamics

559

17.4 Turkey: ‘Consolation Prize’ with Much Practical Effects

561

17.1.1 Supranational competences 17.1.2 Status in the EU legal order 17.1.3 Interpretative parallelism and its limits

17.2.1 Free movement of persons 17.2.2 Membership in Schengen and Dublin 17.2.3 Micro states and Gibraltar

17.3.1 Acquired rights of (former) Union citizens 17.3.2 Sovereign control over future movements

17.4.1 Turkish nationals residing in the Member States 17.4.2 ‘Standstill’ as dynamism for first admission

551 552 553 555 557 558 559 560 561 563

xx Contents

17.5 Western Balkans: Pre-accession Guarantees

564

17.6 Neighbourhood: Novel Focus on Migration Control

566

17.7 Summary

568

17.5.1 Former agreements and transitional periods 17.5.2 Limited impact of contemporary agreements

17.6.1 Eastern partnership: pragmatic cooperation 17.6.2 Union for the Mediterranean: hotbed of control practices

564 565 566 567

18. International Cooperation with Third States 18.1 Theory and Policy Design

570 571

18.2 Constitutional Foundations

577

18.3 Externalisation of Control Practices

581

18.4 Development Cooperation and Legal Pathways

588

18.5 Summary

595

18.1.1 ‘Migration management’ as an overarching narrative 18.1.2 A short history of the EU’s strategic vision 18.1.3 Trial and error of external migration policy 18.1.4 Give and take in the mutual interest

18.2.1 Supranational competences 18.2.2 Spread of informal cooperation frameworks

18.3.1 A recurring theme in the policy discourse 18.3.2 Conditionality: ‘carrots and sticks’ for cooperation 18.3.3 Capacity building and operational cooperation 18.3.4 EU involvement via Frontex and CSDP missions

18.4.1 Contextual complexity of the migration-development nexus 18.4.2 Financial support for multiple purposes 18.4.3 Refugee protection in the Global South 18.4.4 From ‘mobility’ to ‘talent’ partnerships

Bibliography Index

571 573 575 576 578 579 581 583 586 587 589 590 591 593

597 635

Table of Cases COURT OF JUSTICE 1/03 [Opinion] Lugano Convention EU:C:2006:81�� 574n.25 1/13 [Opinion] Accession of Third States to the Hague Convention EU:C:2014:2303�� 578n.44 1/15 [Opinion] Draft Agreement between Canada and the EU EU:C:2017:592 �� 239n.84, 239n.87, 244n.121, 245–46 1/17 [Opinion] EU-Canada CETA-Agreement EU:C:2019:341 �� 262n.69 1/19 [Opinion] Istanbul Convention EU:C:2021:832�� 579n.51 1/91 [Opinion] EEA I EU:C:1991:490�� 553n.18 2/13 [Opinion] Accession to the ECHR EU:C:2014:2454�� 133n.56 2/15 [Opinion] EU-Singapore FTA EU:C:2017:376�� 579n.50 2/94 [Opinion] Accession to the ECHR EU:C:1996:140�� 83n.66, 86n.81 C-4/11 Puid EU:C:2013:740 �� 164n.74 6/64 Costa v ENEL EU:C:1964:66�� 150n.1 C-8/15 P to C-10/15 P Ledra Advertising v Commission and ECB EU:C:2016:701��220n.142 C-8/20 LR EU:C:2021:404�� 558n.52 C-9/16 A EU:C:2017:483��268n.105, 323, 323n.151 9/56 Meroni EU:C:1958:7 �� 56n.83, 203, 205–6 12/86 Demirel EU:C:1987:400��550n.1, 551–52, 563n.90 C-13/01 Safalero EU:C:2003:447 ��219n.129 C-14/09 Genc EU:C:2010:57�� 554n.22 C-14/21 and C-15/21 Sea Watch EU:C:2022:604��308n.51, 309n.57, 517–18 C-15/11 Sommer EU:C:2012:371��454n.174 C-16/05 Tum and Dari EU:C:2007:530�� 563n.92 C-17/16 El Dakkak and Intercontinental EU:C:2017:341��327n.180 C-18/16 K EU:C:2017:680�� 512n.37, 542n.268, 544n.283 C-18/19 Stadt Frankfurt am Main EU:C:2020:511�� 159n.44, 163n.70, 259n.42, 273n.146, 546n.312 C-18/20 Bundesamt für Fremdenwesen und Asyl EU:C:2021:710�� 379n.306, n.308 C-19/08 Petrosian EU:C:2009:41 ��367n.205 C-19/21 Staatssecretaris van Justitie en Veiligheid EU:C:2022:605��169 C-20/12 Giersch and others EU:C:2013:411�� 518n.80 C-22/08 and C-23/08 Vatsouras and Koupatantze EU:C:2009:344�� 262n.69 C-23/12 Zakaria EU:C:2013:24 �� 138n.93, 327n.183 25/62 Plaumann EU:C:1963:17�� 79–80 26/62 van Gend en Loos EU:C:1963:1��18n.26, 122n.1, 150n.1, 356 C-27/04 Commission v Council EU:C:2004:436�� 80n.45 30/77 Bouchereau EU:C:1977:172 �� 260n.50 C-31/09 Bolbol EU:C:2010:351��398n.434 33/76 Rewe-Zentralfinanz EU:C:1976:188�� 181n.35 C-36/17 Ahmed EU:C:2017:273�� 364n.180, 377n.279 C-38/14 Zaizoune EU:C:2015:260 ��519 C-40/11 Iida EU:C:2012:2405�� 37n.157, 496n.189 41/74 Van Duyn EU:C:1974:133�� 260n.51 C-44/14 Spain v Parliament and Council EU:C:2015:554 �� 65n.137 C-45/07 Commission v Greece EU:C:2009:81 ��144n.121 C-47/15 Affum EU:C:2016:408��518n.79, 519n.90, 528n.159, 536n.220 C-47/17 and C-48/17 X and X EU:C:2018:900�� 161n.61, 367n.202 48/75 Royer EU:C:1976:57�� 255n.11 C-51/03 Georgescu EU:C:2004:200�� 83n.68 C-56/17 Fathi EU:C:2018:803�� 364n.182, 389–90, 391n.390

xxii Table of Cases C-57/09 and 101/09 B and D EU:C:2010:661 �� 271n.125, 272n.139, 399n.447, 399n.449 C-60/16 Khir Amayry EU:C:2017:675�� 540n.249, 544–45 C-61/11 PPU El Dridi EU:C:2011:268��161n.63, 519, 519n.82, 530n.175, 530n.177, 544n.284 C-63/09 Walz EU:C:2010:251��144n.127 C-63/15 Ghezelbash EU:C:2016:409�� 161n.61, 164n.75 C-64/96 and C-65/96 Uecker and Jacquet EU:C:1997:285�� 442n.87 C-66/21 Staatssecretaris van Justitie en Veiligheid EU:C:2022:809��521n.105, 522 C-67/14 Alimanovic EU:C:2015:597 ��269n.115 C-68/89 Commission v Netherlands EU:C:1991:226��326n.173 C-69/10 Samba Diouf EU:C:2011:524�� 182n.45, 219n.129, 269n.112, 374n.260 C-70/09 Hengartner and Gasser EU:C:2010:430�� 556n.39 C-70/18 A and others EU:C:2019:823��245, 245n.124, 246n.134 72/83 Campus Oil EU:C:1984:256 �� 260n.53 C-77/05 United Kingdom v Council EU:C:2007:803��66 C-79/13 Saciri and others EU:C:2014:103�� 412n.532, 413n.542 C-81/13 United Kingdom v Council EU:C:2014:2449�� 436n.53 C-82/16, KA and others EU:C:2018:308��37n.157, 259n.42, 442n.91, 526n.145 C-83/12 PPU Minh Khao Vo EU:C:2012:202 �� 188n.83 C-83/14 CHEZ Razpredelenie Bulgaria EU:C:2015:480��266n.100 C-84/12 Koushkaki EU:C:2013:862 ��162n.67, 163n.69, 255n.10, 261n.65, 271n.127, 289n.59, 290n.61, 292n.84 C-85/96 Martínez Sala EU:C:1998:217 �� 155n.21 C-86/12 Alopka and Moudoulou EU:C:2013:645�� 442n.93 C-88/14 Commission v Parliament and Council EU:C:2015:499�� 59n.95 C-89/18 A EU:C:2019:580�� 564n.97 90/63 and 91/63 Commission v Luxembourg and Belgium EU:C:1964:80�� 156n.26 C-91/05 Commission v Council EU:C:2008:288�� 579n.49 C-91/20 Bundesrepublik Deutschland EU:C:2021:898�� 146n.137, 160n.49, 271n.130, 391n.385 C-94/20 Land Oberösterreich EU:C:2021:477��138n.91, 266n.101, 483n.94, 484n.100 C-95/99–C-98/99 and C-180/99 Khalil EU:C:2001:532 �� 262n.69 C-97/91 Oleificio Borelli v Commission EU:C:1992:491��220n.135 98/80 Romano EU:C:1981:104 �� 205n.39 C-101/13 U EU:C:2014:2249�� 111n.81, 245n.124, 334n.220 C-105/15 P to C-109/15 P Mallis and Malli v Commission and ECB EU:C:2016:702�� 218n.124, 220n.137 106/77 Simmenthal EU:C:1978:49�� 155n.22 C-109/01 Akrich EU:C:2003:491�� 441n.83 C-112/20 État belge EU:C:2021:197��533n.197 C-113/89 Rush Portuguesa EU:C:1990:142��459n.206 C-118/20 Wiener Landesregierung EU:C:2022:34��501 C-123/17 Yön EU:C:2018:632�� 563n.93, 564n.97 C-127/08 Metock EU:C:2008:449�� 441n.83 C-129/18 SM EU:C:2019:248 �� 136n.76, 443n.99 C-130/08 Commission v Greece EU:C:2008:854��365n.194 C-131/12 Google Spain SL and Google Inc EU:C:2014:317 ��243n.115 C-133/06 Parliament v Council EU:C:2008:257 �� 58n.89, 382n.324 C-133/19, C-136/19 and C-137/19 État belge EU:C:2020:577 �� 161n.59, 162n.68, 167n.91, 448n.130 C-135/08 Rottmann EU:C:2010:104��269–70, 500–1 C-137/05 United Kingdom v Council EU:C:2007:805�� 66n.148 C-138/13 Dogan EU:C:2014:2066 �� 563n.95 139/85 Kempf EU:C:1986:223�� 23n.59 C-140/12 Brey EU:C:2013:565 �� 155n.21 C-141/08 P Foshan Shunde Yongjian Housewares and Hardware v Council EU:C:2009:598��169n.95 C-145/09 Tsakouridis EU:C:2010:708 �� 260n.54 C-146/14 Mahdi EU:C:2014:1320�� 161n.65, 167, 185n.69, 532n.193, 541n.263, 543n.282, 545, 546n.316 C-148/02 Garcia Avello EU:C:2003:539�� 442n.88

Table of Cases xxiii C-148/13–C-150/13 A, B and C EU:C:2014:2406�� 389–90, 389nn.374–75 C-153/14 K and A EU:C:2015:453 ��266n.94, 490–91, 490n.144, 492n.153 C-155/11 PPU Mohammad Imran EU:C:2011:387 ��490n.145 157/79 Pieck EU:C:1980:179��326n.173 C-158/07 Förster EU:C:2008:630 ��269n.115 C-159/21 Országos Idegenrendeszeti Főigazgatóság and others EU:C:2022:708 �� 185n.70, 261n.64, 273n.150, 379n.312, 399n.446 C-161/15 Bensada Benallal EU:C:2016:175�� 181n.41 C-162/00 Pokrzeptowiez-Meyer EU:C:2002:57��565n.107 C-163/17 Jawo EU:C:2019:218��161n.61, 352n.91, 367n.209, 368n.217 C-165/14 Rendón Marín EU:C:2016:675�� 259n.45 C-165/16 Lounes EU:C:2017:862�� 442n.88, 499n.206 C-166/13 Mukarubega EU:C:2014:2336�� 185n.67, 186n.74, 377n.290 C-168/91 Konstantinidis EU:C:1993:115��334n.220 C-171/13 Demirci and others EU:C:2015:8�� 476n.49, 562n.84 C-171/95 Tetik EU:C:1997:31��562 C-175/08, C-176/08, C-178/08 and C-179/08 Abdulla EU:C:2010:105�� 144n.126, 388n.369, 390n.381, 395n.414, 396n.420, 400 C-175/11 D and A EU:C:2013:45�� 266n.94, 378n.294 C-175/17 Belastingdienst/Toeslagen EU:C:2018:776 �� 181n.37, 184n.64 C-179/11 Cimade and GISTI EU:C:2012:594��411, 413n.542, 414n.545 C-181/16 Gnandi EU:C:2018:465��71n.7, 184n.62, 377n.290, 411n.529, 527 181/73 Haegeman EU:C:1974:41 �� 552n.9 C-184/16 Petrea EU:C:2017:684�� 84n.71, 528n.167 C-184/99 Grzelczyk EU:C:2001:458�� 23n.64 C-186/21 Republika Slovenija EU:C:2021:447 ��542n.273 C-188/10 and C-189/10 Melki and Abdeli EU:C:2010:363 �� 322–23 C-192/89 Sevince EU:C:1990:322�� 553n.12, 562n.81 C-192/99 Kaur EU:C:2001:106��500n.217 C-193/19 Migrationsverket EU:C:2021:168�� 190n.99 C-194/01 Commission v Austria EU:C:2004:248 �� 156n.29 C-194/19 État belge EU:C:2021:270��168n.93, 183–84, 363n.169, 367n.203 C-199/12–C-201/12 X and others EU:C:2013:720��134n.67, 263n.72, 389n.371, 391, 396–97, 396n.423 C-200/02 Zhu and Chen EU:C:2004:639�� 442n.85 C-201/16 Shiri EU:C:2017:805��168n.93, 367 C-202/13 McCarthy and others EU:C:2014:2450��276n.170 C-202/18 Rimšēvičs v Latvia EU:C:2019:139��219n.126 C-203/15 and C-698/15 Tele2 Sverige, Watson and others EU:C:2016:970 ��246n.133 C-205/06 Commission v Austria EU:C:2009:118 �� 553n.16 C-205/15 Toma and Biroul Executorului Judecătoresc Horaţiu-Vasile Cruduleci EU:C:2016:499�� 183n.54 C-208/09 Sayn-Wittgenstein EU:C:2010:806 �� 260n.52, 274n.154 C-208–210/17 P NF and others v European Council EU:C:2018:705�� 79n.44 C-215/03 Oulane EU:C:2005:95�� 255n.13 C-216/18 PPU Minister for Justice and Equality EU:C:2018:589�� 353n.96 C-219/17 Berlusconi and Fininvest EU:C:2018:1023 ��219n.131 C-220/17 Planta Tabak EU:C:2019:76�� 239n.85 C-221/11 Demirkan EU:C:2013:583�� 285n.29, 563n.96 C-221/17 Tjebbes and others EU:C:2019:189�� 501–2 C-225/16 Ouhrami EU:C:2017:590 ��526 C-225/19 and C-226/19 Minister van Buitenlandse Zaken EU:C:2020:951�� 185n.68, 188n.89, 220n.135, 255n.10, 291n.77 C-228/06 Soysal and Savatli EU:C:2009:101�� 563n.94 C-231/21 Bundesamt für Fremdenwesen und Asyl EU:C:2022:237�� 159n.41, 367n.210 C-233/18 Haqbin EU:C:2019:956�� 136n.77, 352n.91, 413 C-233/19 CPAS de Liège EU:C:2020:757��166n.83, 184 C-235/95 Dumon and Froment EU:C:1998:365 �� 83n.67, 268n.108

xxiv Table of Cases C-236/09 Association belge des Consommateurs Test-Achats ASBL and others EU:C:2011:100�� 239n.85, 484n.97 C-237/15 PPU Lanigan EU:C:2015:474�� 190n.98 C-237/91 Kus EU:C:1992:527�� 563n.90 C-238/19 Bundesamt für Migration und Flüchtlinge EU:C:2020:945��86n.84, 389n.371, 397–98 C-239/14 Tall EU:C:2015:824��134n.64, 184n.62, 307n.46 C-240/17 E EU:C:2018:8�� 190n.101, 190n.102, 259n.38, 259n.42, 261n.62, 525n.136, 536n.219 C-241/05 Bot EU:C:2006:634 �� 289n.57, 317n.108 C-241/21 Politsei-ja Piirivalveamet EU:C:2022:753 ��512, 543n.278 C-244/10 and C-245/10 Mesopotamia Broadcast EU:C:2011:607 �� 187n.82 C-244/17 Commission v Council EU:C:2018:662�� 579n.52 C-245/11 K EU:C:2012:685�� 363n.171, 365n.184 C-245/21 and C-248/21 Bundesrepublik Deutschland EU:C:2022:709�� 161n.61, 367n.206 C-246/17 Diallo EU:C:2018:499�� 182n.47 C-247/20 Commissioners for Her Majesty’s Revenue and Customs EU:C:2022:177�� 559n.65 C-249/13 Boudjlida EU:C:2014:2431�� 184n.66, 186n.74 C-249/96 Grant EU:C:1998:63 ��140n.101 C-254/11 Shomodi EU:C:2013:182��328n.186 C-255/19 Secretary of State for the Home Department EU:C:2021:36�� 392n.399, 393n.400, 395n.415, 396n.420, 400 C-256/11 Dereci and others EU:C:2011:734 ��37n.157, 302n.7, 442n.91 C-257/01 Commission v Council EU:C:2005:25�� 58n.92 C-257/99 Barkoci and Malik EU:C:2001:491��565n.103 C-261/08 and C-348/08 Zurita García and Choque Cabrera EU:C:2009:648�� 159n.40, 327n.179 C-262/96 Sürül EU:C:1999:228�� 563n.88 C-265/03 Simutenkov EU:C:2005:213��566n.111 C-268/99 Jany EU:C:2001:616 ��565n.103 C-269/18 C and others EU:C:2018:544��540n.251 C-270/12 United Kingdom v Council and Parliament EU:C:2014:18�� 204n.31, 205n.39 270/80 Polydor EU:C:1982:43�� 554n.19 C-273/20 and C-355/20 Bundesrepublik Deutschland EU:C:2022:617��448n.130 C-275/02 Ayaz EU:C:2004:570�� 554n.23 C-277/11 MM EU:C:2012:2479 �� 169n.96 C-278/12 Adil EU:C:2012:508��323, 323n.148 C-279/09 DEB EU:C:2010:811�� 184n.66 C-279/20 Bundesrepublik Deutschland EU:C:2022:618�� 447–48 281, 283, 284, 285 and 287/85 Germany and others v Commission EU:C:1987:351 �� 25n.74, 437n.58 283/81 CILFIT EU:C:1982:335�� 85n.80 C-285/12 Diakité EU:C:2014:39��160n.49, 402 C-290/14 Celaj EU:C:2015:640��161n.63, 518n.80, 519n.82, 519n.91 C-291/12 Schwarz EU:C:2013:670�� 282n.13, 334n.216 C-293/12 and C-594/12 Digital Rights Ireland EU:C:2014:238��243n.115, 245 C-294/06 Payir EU:C:2008:36�� 562n.83 294/83 Les Verts EU:C:1986:166��218n.123, 356 C-297/12 Filev and Osmani EU:C:2013:569 �� 526n.146, 528n.162 C-297/17, C-318/17, C-319/17 and C-438/17 Ibrahim and others EU:C:2019:219�� 354n.105, 364n.182, 369n.226, 370n.231 C-300/09 and C-301/09 Toprak and Oguz EU:C:2010:756�� 563n.93 C-300/11 ZZ EU:C:2013:363�� 185n.70 C-300/98 and C-392/98 Christian Dior EU:C:2000:688 �� 552n.6 C-302/18 X EU:C:2019:830��159n.42, 257n.31, 258n.34 C-302/19 Istituto Nazionale della Previdenza Sociale EU:C:2020:957�� 480n.71, 486n.113 C-303/08 Bozkurt EU:C:2010:800 �� 38n.159 C-303/19 Istituto Nazionale della Previdenza Sociale EU:C:2020:958�� 476n.48, 481, 482n.79 C-308/06 Intertanko EU:C:2008:312�� 553n.11, 553n.14 C-309/14 CGIL and INCA EU:C:2015:523��256 C-310/08, Ibrahim EU:C:2010:80�� 441n.82

Table of Cases xxv C-312/12 Ajdini EU:C:2013:103�� 138n.88, 272n.137 C-322/19 and C-385/19 The International Protection Appeals Tribunal and others EU:C:2021:11��155n.20, 167n.92, 276n.171, 319n.117, 411n.528, 412n.536, 413n.542 C-323/21, C-324/21 and C-325/21 Staatssecretaris van Justitie en Veiligheid EU:C:2023:4 ��161, 168, 365n.191, 366n.198, 367n.203 C-327/02 Panayotova and others EU:C:2004:718��565n.104 C-329/06 and C-343/06 Wiedemann and Funk EU:C:2008:366�� 187n.82 C-329/11 Achughbabian EU:C:2011:807��519, 527n.154 C-336/05 Eckhouik EU:C:2006:394 ��567n.118 C-338/13 Noorzia EU:C:2014:2092 ��161n.55, 269, 444 C-34/09 Ruiz Zambrano EU:C:2011:124��37, 442 C-340/97 Nazli EU:C:2000:77�� 554n.24 C-341/18 Staatssecretaris van Justitie en Veiligheid EU:C:2020:76�� 161n.66, 327n.179 C-348/09 I EU:C:2012:300�� 260n.54 C-348/16 Sacko EU:C:2017:591 �� 186n.76 C-349/20 Secretary of State for the Home Department EU:C:2022:151�� 389n.370, 398–99 C-350/20 INPS EU:C:2021:659�� 481n.75, 482n.83, 484n.100 C-351/95 Kadiman EU:C:1997:205�� 255n.14, 562n.80 C-353/16 MP EU:C:2018:276��393n.402, 403 C-355/10 Parliament v Council EU:C:2012:516 �� 58n.90, 332n.203 C-356/11 and C-357/11 O and S EU:C:2012:776��37n.157, 136n.77, 439n.74, 443n.97 C-357/09 PPU Kadzoev EU:C:2009:741 ��543, 544n.291, 545n.295 C-359/16 Altun and others EU:C:2018:63��191n.106 C-36/20 PPU Ministerio Fiscal EU:C:2020:495�� 170n.104, 331n.198, 354n.107, 373–74, 540n.247, 542n.267 C-360/16 Hasan EU:C:2018:35��366n.198 C-364/11 El Karem El Kott and others EU:C:2012:286�� 159n.45, 398, 399n.442, 487n.125 C-365/02 Lindfors EU:C:2004:449�� 167n.88 C-368/20 and C-369/20 Landespolizeidirektion Steiermark and Bezirkshauptmannschaft Leibnitz EU:C:2022:298�� 274n.155, 319n.119, 320–21 C-369/17 Ahmed EU:C:2018:713�� 145n.133, 399n.445, 399n.448, 487n.118 C-369/90 Micheletti EU:C:1992:295��500n.216 C-370/17 CRPNPAC EU:C:2020:260�� 191n.106, 460n.216 C-371/08 Ziebell EU:C:2011:809�� 23n.60, 259–60, 554 C-373/13 T EU:C:2015:413��255n.9, 259n.39, 259n.41, 260n.51, 261n.63, 419 C-377/12 Commission v Council EU:C:2014:1903�� 579n.53 C-378/97 Wijsenbeek EU:C:1999:439�� 26n.79, 227n.22 C-379/20 Udlændingenævnet EU:C:2021:660�� 564n.97 C-380/17 K and B EU:C:2018:877 ��269n.114, 447 C-380/18 EP EU:C:2019:1071��259–60, 261n.59, 261n.65 C-381/18 and C-382/18 GS and VG EU:C:2019:1072�� 160n.50, 260n.48, 261n.59, 262n.66, 272n.134 C-383/03 Dogan EU:C:2005:436�� 562n.82 C-383/13 PPU G and R EU:C:2013:533�� 161n.65, 186n.74 C-391/16, C-77/17 and C-78/17 M and others EU:C:2019:403�� 144n.125, 166n.81, 354n.108, 419 C-392/95 Parliament v Council EU:C:1997:289 �� 284n.17 C-394/12 Abdullahi EU:C:2013:813�� 164n.74, 368n.218 C-397/01–C-403/01 Pfeiffer EU:C:2004:584�� 156n.28 C-399/12 Germany v Council EU:C:2014:2258��144n.122 C-400/10 PPU McB EU:C:2010:582�� 134n.65 C-401/11 Soukupová EU:C:2013:223�� 138n.94 C-402/19 CPAS de Seraing EU:C:2020:759�� 532n.192, 532n.195 C-403/05 Parliament v Commission EU:C:2007:624 �� 579n.54 C-403/16 El Hassani EU:C:2017:960�� 85n.75, 169n.94, 183n.50, 183n.53, 292n.78 C-404/17 A EU:C:2018:588��381n.323 C-406/18 Bevándorlási és Menekültügyi Hivatal EU:C:2020:216��156n.25, 167n.87, 182n.48 C-409/20 Subdelegación del Gobierno en Pontevedra EU:C:2022:148 ��530n.176 C-411/06 Commission v Council EU:C:2009:518�� 305n.25

xxvi Table of Cases C-411/10 and C-493/10 NS and others EU:C:2011:865��134n.63, 161n.60, 177n.20, 368n.217, 369n.225, 369n.229 C-413/99 Baumbast and R EU:C:2002:493�� 441n.82 C-416/96 El-Yassini EU:C:1999:107��456n.191 C-422/21 Ministero dell’Interno EU:C:2022:616��413 C-429/15 Danqua EU:C:2016:789�� 182n.45 C-43/93 Vander Elst EU:C:1994:310 ��459 C-430/11 Sagor EU:C:2012:777 �� 519n.85, 519n.89 C-431/11 United Kingdom v Council EU:C:2013:589�� 436n.51, 552n.7 C-432/20 Landeshauptmann von Wien EU:C:2022:39��475n.38, 498 C-434/09 McCarthy EU:C:2011:277�� 302n.6 C-434/93 Bozkurt EU:C:1995:168 �� 554n.21 C-441/02 Commission v Germany EU:C:2006:253�� 83n.63 C-441/19 Staatssecretaris van Justitie en Veiligheid EU:C:2021:9�� 154n.19, 363n.166, 533n.196 C-443/14 and C-444/14 Alo and Osso EU:C:2016:127�� 264n.79, 416n.555, 417, 481n.76, 487n.125 C-444/17 Arib and others EU:C:2019:220�� 319n.117, 528n.161 C-445/03 Commission v Luxemburg EU:C:2004:655��460n.215 C-446/12–C-449/12 Willems and others EU:C:2015:238��334n.218 C-448/19 Subdelegación del Gobierno en Guadalajara EU:C:2020:467�� 85n.77 C-449/16 Martinez Silva EU:C:2017:485�� 482n.83 C-456/12 O and B EU:C:2014:135 �� 276n.169, 442n.86 C-457/17 Maniero EU:C:2018:912��266n.101 C-459/99 MRAX EU:C:2002:461��326n.174 C-462/20 ASGI and others EU:C:2021:894 �� 482n.79 C-465/07 Elgafaji EU:C:2009:94�� 86, 401–3 C-467/02 Cetinkaya EU:C:2004:708�� 554n.24 C-469/13 Tahir EU:C:2014:2094�� 271n.125, 272n.137, 496n.181, 497n.190 C-472/13 Shepherd EU:C:2015:117 �� 389n.373, 391n.387, 397n.428 C-473/13 and C-514/13 Bero and Bouzalmate EU:C:2014:2095��546n.310 C-473/16 F EU:C:2018:36�� 167n.90, 389n.372, 389n.378 C-474/13 Pham EU:C:2014:2096��546n.311 C-479/21 PPU Governor of Cloverhill Prison and others EU:C:2021:929�� 552n.7 C-481/13 Qurbani EU:C:2014:2101�� 144n.120, 518n.79 C-482/08 United Kingdom v Council EU:C:2010:631�� 66n.148, 316n.101 C-483/20 Commissaire général aux réfugiés et aux apatrides EU:C:2022:103�� 377n.284, 447n.125 C-484/22 Bundesrepublik Deutschland EU:C:2023:122��533n.196 C-490/16 AS EU:C:2017:585�� 164n.75, 367n.205 C-491/13 Ben Alaya EU:C:2014:2187 �� 162n.67, 255n.7, 454 C-497/21 Bundesrepublik Deutschland, EU:C:2022:721 �� 65n.139, 379n.303 C-502/04 Torun EU:C:2006:112�� 562n.85 C-502/10 Singh EU:C:2012:3076 ��496, 497n.191 C-503/03 Commission v Spain EU:C:2006:74�� 246n.136, 326n.174 C-507/19 Bundesrepublik Deutschland EU:C:2021:3�� 146n.135, 398n.437 C-508/10 Commission v Netherlands EU:C:2012:243 ��255n.8, 256, 256n.19, 476n.46 C-513/12 Ayalti EU:C:2013:210��490n.145 C-517/17 Addis EU:C:2020:579 �� 186n.72, 374n.263 C-519/18 Bevándorlási és Menekültügyi Hivatal EU:C:2019:1070�� 257n.32, 258n.35, 272n.138, 272n.139, 447 C-519/20 Landkreis Gifhorn EU:C:2022:178��545n.304, 546 C-524/06 Huber EU:C:2008:724�� 245n.124, 245n.127, 246n.134, 246n.137 C-528/11 Halaf EU:C:2013:342 ��145n.133, 365 C-528/15 Al Chodor EU:C:2017:213 ��541, 541n.263, 544n.283 C-534/11 Arslan EU:C:2013:343�� 527n.157, 542n.266, 543n.278 C-540/03 Parliament v Council EU:C:2006:429 ��36n.147, 138n.90, 141n.104, 160n.53, 165, 167n.86, 255n.6, 438n.63, 439n.74, 444n.101, 444n.105, 491n.150, 491n.151 C-540/17 and C-541/17 Hamed and Omar EU:C:2019:964 �� 370n.230, 377n.283

Table of Cases xxvii C-542/13 M’Bodj EU:C:2014:2452��138n.88, 272n.140, 350n.71, 392–93, 403n.479 C-544/15 Fahimian EU:C:2017:255�� 162n.67, 163n.69, 259, 259n.38, 260n.50, 261n.60, 261n.65 C-546/19 Westerwaldkreis EU:C:2021:432 �� 525n.139, 526n.151, 529n.172, 532n.192, 533n.198, 546n.317 C-550/16 A and S EU:C:2018:248��448n.130 C-554/13 Zh and O EU:C:2015:377�� 259n.38, 525n.142 C-554/19 Staatsanwaltschaft Offenburg EU:C:2020:439��323n.153 C-556/17 Torubarov EU:C:2019:626 �� 166n.83, 186n.78 C-557/17 YZ and others EU:C:2019:203 ��255n.16, 498 C-558/14 Khachab EU:C:2016:285��161n.56, 167n.87, 257n.30, 258n.33 C-560/14 M EU:C:2017:101 ��185n.71, 186n.73, 375n.266, 376n.274, 389n.374 C-561/14 Genc EU:C:2016:247�� 564n.97 C-562/13 Abdida EU:C:2014:2453�� 184n.62, 532, 532n.190 C-564/18 Bevándorlási és Menekültügyi Hivatal (Tompa) EU:C:2020:218 �� 182n.45, 377n.280, 382n.330, 383n.339 C-564/22 Bundesrepublik Deutschland EU:C:2022:951�� 185n.70 C-565/19 P Carvalho and others v Parliament and Council EU:C:2021:252��218n.125 C-568/19 Subdelegación del Gobierno en Toledo EU:C:2020�� 520n.92 C-571/10 Kamberaj EU:C:2012:233��165n.79, 266n.96, 481n.74, 483n.87, 483n.92, 484n.97, 484n.100 C-573/14 Lounani EU:C:2017:71��399n.450 C-575/12 Air Baltic Corporation EU:C:2014:2155�� 161n.66, 271n.127, 324n.157, 325n.166 C-578/08 Chakroun EU:C:2010:117��160n.53, 165n.79, 257n.31, 257n.32 C-578/16 PPU CK and others EU:C:2017:127�� 369n.221, 369n.229 C-579/13 P and S EU:C:2015:369��264n.79, 476n.48, 490–91 C-582/17 and 583/17 H and R EU:C:2019:280�� 161n.60, 367n.202 C-583/11 P Inuit Tapiriit Kanatami and others v Parliament and Council EU:C:2013:625�� 79n.42, 220n.134 C-584/18 Blue Air –Airline Management Solutions EU:C:2020:324��185n.68, 296 C-585/16 Alheto EU:C:2018:584�� 85n.75, 157n.33, 186n.78, 384n.346, 399n.441, 399n.443 C-600/14 Germany v Council EU:C:2017:935�� 578n.42 C-601/15 PPU N EU:C:2016:84 �� 259n.38, 512, 540n.248, 542n.265, 543n.275 C-604/12 HN EU:C:2014:302�� 185n.67 C-604/12 N EU:C:2014:302�� 376n.274, 377n.287 C-606/10 ANAFE EU:C:2012:348 �� 319n.117, 324n.156 C-609/17 and C-610/17 TSN and AKT EU:C:2019:981�� 138n.89 C-616/19 Minister for Justice and Equality EU:C:2020:1010�� 66n.153, 161n.60, 377n.282 C-617/10 Åkerberg Fransson EU:C:2013:280 �� 137n.84, 138n.87 C-620/18 and C-626/18 Hungary and Poland v Parliament and Council EU:C:2020:1001�� 477n.54 C-635/17 E EU:C:2019:192��60n.99, 136n.76, 439n.75, 446, 447n.119 C-636/16 López Pastuzano EU:C:2017:949�� 259n.43, 262n.66 C-638/16 PPU X and X EU:C:2017:173�� 74, 77, 294–95 C-643/15 and C-647/15 Slovakia and Hungary v Council EU:C:2017:631 �� 54n.74, 156n.23, 268n.104, 350–51, 354n.106, 361n.152, 407n.502, 472n.17 C-646/16 Jafari EU:C:2017:586��77, 153n.9, 274, 325n.168, 356n.124, 363n.173, 369n.221 C-647/16 Hassan EU:C:2018:368�� 77n.31, 160n.48, 160n.49, 161n.61, 367n.202 C-648/11 MA and others EU:C:2013:367�� 136n.77, 363nn.165–66 C-651/19 Commissaire général aux réfugiés and aux apatrides EU:C:2020:681 ��181, 182n.46 C-652/16 Ahmedbekova EU:C:2018:801�� 272n.133, 392, 396n.423, 397n.427 C-656/11 United Kingdom v Council EU:C:2014:97�� 436n.51 C-660/13 Council v Commission EU:C:2016:616�� 61n.109 C-661/17 MA and others EU:C:2019:53��365 C-662/17 E G EU:C:2018:847�� 166n.83, 377n.288 C-668/15 Jyske Finans EU:C:2017:278�� 266n.98, 266n.101 C-670/16 Mengesteab EU:C:2017:587 ��160n.49, 161n.61, 164n.75, 367n.201 C-673/16 Coman and others EU:C:2018:385�� 443n.98 C-673/19 M and others EU:C:2021:127�� 532n.195, 536n.221, 536n.222, 546n.316

xxviii Table of Cases C-673/20 Préfet du Gers and Institut National de la Statistique et des Études Économiques EU:C:2022:449 ��500n.214 C-680/17 Vethanayagam EU:C:2019:627 �� 189n.94, 556n.42 C-682/15 Berlioz Investment Fund EU:C:2017:373��219, 220n.134 C-69/21 Staatssecretaris van Justitie en Veiligheid EU:C:2022:913�� 352–53, 529n.172 C-695/15 PPU Mirza EU:C:2016:188�� 161n.60, 364n.183 C-706/18 Belgische Staat EU:C:2019:993�� 161n.58, 182n.47 C-71/11 and C-99/11 Y and Z EU:C:2012:518 ��388n.369, 391, 391n.393 C-713/17 Ayubi EU:C:2018:929�� 156n.27, 481n.77, 487n.125 C-715/17, C-718/17 and C-719/17 Commission v Poland and others EU:C:2020:257��82n.61, 261n.61, 273, 274n.156, 356n.124, 361n.153 C-718/19 Ordre des barreaux francophones et germanophone and others EU:C:2021:505�� 35n.143, 264n.79, 269n.111 C-72/22 PPU Valstybės sienos apsaugos tarnyba EU:C:2022:505�� 275n.163, 331n.199, 354n.109, 374n.256, 542n.267, 543n.274 C-720/17 Bilali EU:C:2019:448�� 145n.133, 379n.311, 446n.117, 498n.199 C-720/19 Stadt Duisburg EU:C:2020:847 �� 562n.86 C-720/20 Bundesrepublik Deutschland EU:C:2022:603��363n.167 C-754/18 Ryanair Designated Activity Company EU:C:2020:478�� 326n.171, 326n.174 C-755/19 THC EU:C:2021:108�� 182n.46 C-768/19 Bundesrepublik Deutschland EU:C:2021:709��448n.130 C-806/18 JZ EU:C:2020:723 �� 519n.90, 526n.150 C-808/18 Commission v Hungary EU:C:2020:493 ��82n.59, 255n.5, 273n.144, 274n.153, 274n.157, 330n.197, 374n.256, 385n.350, 539n.244, 542 C-817/19 Ligue des droits humains EU:C:2022:491 �� 238n.82, 245n.124, 245n.126 C-821/19 Commission v Hungary EU:C:2021:930 �� 276n.172, 354n.107, 373n.250, 375 C-825/21 Centre public d’action sociale de Liège EU:C:2022:810��546n.316 C-848/19 P Germany v Poland EU:C:2021:598��356 C-897/19 PPU Ruska Federacija EU:C:2020:262 �� 556n.40 C-901/19 Bundesrepublik Deutschland EU:C:2021:472�� 402–3 C-921/19 Staatssecretaris van Justitie en Veiligheid EU:C:2021:478�� 378–79, 379n.305, 389n.374 C-924/19 PPU and C-925/19 PPU Országos Idegenrendészeti Főigazgatóság Dél-alföldi Regionális Igazgatóság EU:C:2020:367��73n.15, 181n.42, 354n.107, 377n.281, 378n.300, 379n.310, 414n.549, 511–12, 531n.186, 540n.246, 542–43, 544–45 C-930/19 État belge EU:C:2021:657��35n.143, 262n.70, 264n.79 C-949/19 Konsul Rzeczypospolitej Polskiej w N EU:C:2021:186�� 183n.53 GENERAL COURT T-31/18 Izuzquiza and Semsrott v Frontex EU:T:2019:815 �� 79n.43 T-192/16 NF v European Council EU:T:2017:128�� 79n.44 T-229/05 PKK v Council EU:T:2008:87��220n.138 T-326/99 Olivieri v Commission and EMEA EU:T:2003:351��219n.130 T-429/18 BRF and SHB Comercio e Industria de Alimentos v Commission EU:T:2020:322�� 169n.95 T-528/20 Kočner v Europol EU:T:2021:631��220n.143 T-600/21 WS and others v Frontex EU:T:2022:474�� 74n.21 EUROPEAN COURT OF HUMAN RIGHTS AA and others v North Macedonia App no 55798/16 (ECtHR, 5 April 2022) �� 311n.72 AM v Netherlands App no 29094/09 (ECtHR, 5 July 2016)�� 351n.85 Abdulaziz and others v United Kingdom App nos 9214/80, 9473/81 and 9474/81 (ECtHR, 28 May 1985) ��22n.47, 129n.34, 266n.96, 438n.62 Amuur v France App no 19776/92 (ECtHR, 15 June 1996)�� 511n.31, 512n.40 Animal Defenders International v the United Kingdom App no 48876/08 (ECtHR [GC], 22 April 2013)��270n.120 Antwi and others v Norway App no 26940/10 (ECtHR, 14 February 2012) �� 478n.59

Table of Cases xxix Asady and others v Slovakia App no 24917/15 (ECtHR, 24 March 2020) �� 311n.73 Bah v United Kingdom App no 56328/07 (ECtHR, 27 November 2011) �� 265n.90 Berrehab v Netherlands App no 10730/84 (ECtHR, 21 June 1988)�� 477n.55 Biao v Denmark App no 38590/10 (ECtHR [GC], 24 May 2016)��267n.102 Biao v Denmark App no 38590/10 (ECtHR, 25 March 2013)�� 265n.92 Bosphorus Airways v Ireland App no 45036/98 (ECtHR [GC], 30 June 2005)�� 133n.57 Boultif v Switzerland App no 54273/00 (ECtHR, 2 August 2001)�� 478n.56 Carson and others v United Kingdom App no 42184/05 (ECtHR [GC], 16 March 2010)�� 266n.93 Čonka v Belgium App no 51564/99 (ECtHR, 5 February 2002) �� 184n.61, 310n.68 DH and others v Czech Republic App no 57325/00 (ECtHR [GC], 13 November 2007) ��266n.100 DNM v Sweden App no 28379/11 (ECtHR, 27 June 2013)�� 395–96 Dalea v France App no 964/07 (ECtHR, 2 February 2010) ��246n.138 Daytbegova and Magomedova v Austria App no 6198/12 (ECtHR, 4 June 2013)��369n.222 De Souza Ribeiro v France App no 22689/07 (ECtHR [GC], 13 December 2012)�� 184n.57 Dhabi v Italy App no 17120/09 (ECtHR, 8 April 2013) �� 264n.84 El Ghatet v Switzerland App no 56971/10 (ECtHR, 8 November 2016)�� 439n.68 FG v Sweden App no 43611/11 (ECtHR [GC], 23 March 2016) ��388n.369 Gaygusuz v Austria App no 17371/90 (ECtHR, 16 September 1996)��264 HLR v France App no 24573/94 (ECtHR [GC], 29 April 1997)�� 351n.82 Hirsi Jamaa and others v Italy App no 27765/09 (ECtHR [GC], 23 February 2012)��306, 306n.27 Hode and Abdi v United Kingdom App no 22341/09 (ECtHR, 6 November 2012)��487 Hoti v Croatia App no 63311/14 (ECtHR, 26 April 2018)�� 126n.20, 513n.50 IAA and others v United Kingdom App no 25960/13 (ECtHR, 8 March 2016) �� 135n.72, 438n.66, 439 Ilias and Ahmed v Hungary App no 47287/15 (ECtHR [GC], 21 November 2019)�� 310n.63, 511, 545n.305 JK v Sweden App no 59166/12 (ECtHR [GC], 23 August 2016) ��389, 394n.411 JR and others v Greece App no 22696/16 (ECtHR, 25 January 2018) �� 511n.31 Jeunesse v Netherlands App no 12738/10 (ECtHR [GC], 3 October 2014)�� 514n.52 KI v France App no 5560/19 (ECtHR, 15 April 2021)��399n.444 KN v United Kingdom App no 28774/22 (ECtHR, 14 June 2022)��385n.357 Károly Nagy v Hungary App no 56665/09 (ECtHR [GC], 14 September 2016)�� 169n.98 Khlaifia and others v Italy App no 16483/12 (ECtHR [GC], 12 December 2016) �� 184n.59, 311n.73, 331n.198 Konstatinov v Netherlands App no 16351/03 (ECtHR, 26 April 2013)�� 257n.28 Koua Poirrez v France App no 40892/98 (ECtHR, 30 September 2003)�� 265n.88 Kudła v Poland App no 30210/96 (ECtHR [GC], 26 October 2000) �� 73n.14 LM and others v Russia App nos 40081/14, 40088/14 and 40127/14 (ECtHR, 15 October 2015)��146n.140 MA v Denmark App no 6697/18 (ECtHR [GC], 9 July 2021)�� 270n.119, 438–39, 438n.64, 487n.125 MA v Lithuania App no 59793/17 (ECtHR, 11 December 2018)��331n.198 MB and RA v Spain App no 20351/17 (ECtHR, 5 July 2022)�� 307n.40, 310n.66 MH and others v Croatia App nos 15670/18 and 43115/18 (ECtHR, 18 November 2021)�� 311n.72, 512n.41, 545n.307 MK and others v Poland App nos 40503/17, 42902/17 and 43643/17 (ECtHR, 23 July 2020)�� 310, 311n.72, 330n.197 MN and others v Belgium App no 3599/18 (ECtHR [GC], 5 May 2020)�� 131n.45, 183n.51, 306, 306n.26 MSS v Belgium and Greece App no 30696/09 (ECtHR [GC], 21 January 2011)��133n.59, 146n.140, 183n.52, 184n.65, 352, 368n.212, 369n.225, 545n.305 MT and others v Sweden App no 22105/18 (ECtHR, 20 October 2022)��487n.124 MT v Netherlands App no 46595/19 (ECtHR, 23 March 2021)��369n.223 MYH and others v Sweden App no 50859/10 (ECtHR, 27 June 2013) �� 352n.86 Maaouia v France App no 39652/98 (ECtHR [GC], 5 October 2000) �� 183n.51 Maslov v Austria App no 1638/03 (ECtHR [GC], 23 June 2008) �� 478n.57, 478n.60 Mohammed Hussein and others v Netherlands and Italy App no 27725/10 (ECtHR, 2 April 2013)��369n.222 Moustaquim v Belgium App no 12313/86 (ECtHR, 18 February 1991)�� 264n.81

xxx Table of Cases Muskhadzhiyeva and others v Belgium App no 41442/07 (ECtHR, 19 January 2010) �� 512n.41 NA v Finland App no 25244/18 (ECtHR, 14 November 2019)��531n.183 ND and NT v Spain App nos 8675/15 and 8697/15 (ECtHR [GC], 13 February 2020)�� 130n.38, 140n.100, 307n.38, 310–11, 353n.97, 586n.97 NH and others v France App nos 28820/13, 75547/13 and 13114/15 (ECtHR, 2 July 2020)�� 352n.90, 410n.521 NA v United Kingdom App no 25904/07 (ECtHR, 17 July 2008)�� 351–52 Nunez v Norway App no 55597/09 (ECtHR, 28 June 2011)��135n.71, 439n.71, 513n.49 Omwenyeke v Germany App no 44294/04 (ECtHR, 20 November 2008) ��419n.570 Othman (Abu Qatada) v United Kingdom App no 8139/09 (ECtHR, 17 January 2012)�� 351n.81, 353n.95 Paposhvili v Belgium App no 41738/10 (ECtHR [GC], 13 December 2016)�� 352–53 Ponomaryovi and others v Bulgaria App no 5335/05 (ECtHR, 21 June 2011)��264n.81, 264n.85, 265n.88 Pormes v Netherlands App no 25402/14 (ECtHR, 28 July 2020)�� 514n.51 S and Marper v United Kingdom App nos 30562 and 30566/04 (ECtHR [GC], 4 December 2008) �� 244n.121, 245n.126 SK v Russia App no 52722/15 (ECtHR, 14 February 2017)�� 352n.87 SM v Croatia App no 60561/14 (ECtHR [GC], 25 June 2020)�� 521n.98 Saadi v Italy App no 37201/06 (ECtHR [GC], 28 February 2008) �� 351n.80 Saadi v United Kingdom App no 13229/03 (ECtHR [GC], 29 January 2008) ��146n.139, 511 Salah Sheekh v Netherlands App no 1948/04 (ECtHR, 11 January 2007)��146n.139, 351n.83, 395n.417 Savickis and others v Latvia App no 49270/11 (ECtHR [GC], 9 June 2022)�� 265n.86 Savran v Denmark App no 57467/15 (ECtHR [GC], 7 December 2021) �� 352n.92, 478n.58, 526n.144 Shahzad v Hungary App no 12625/17 (ECtHR, 8 July 2021)�� 311n.72 Sisojeva v Latvia App no 60654/00 (ECtHR [GC], 15 January 2007)��126n.20, 478n.63, 513n.50 Slivenko and others v Latvia App no 48321/99 (ECtHR [GC], 9 October 2003)�� 438n.65 Sufi and Elmi v United Kingdom App nos 8319/07 and 11449/07 (ECtHR, 28 June 2011) �� 352n.86, 395n.416 TI v United Kingdom App no 43844/98 (ECtHR, 7 March 2000)��368n.215 Tanda-Muzinga v France App no 2260/10 (ECtHR, 10 July 2014)�� 439n.69, 487n.122 Tarakhel v Switzerland App no 29217/12 (ECtHR [GC], 4 November 2014) �� 352n.90, 369n.223, 369n.227 Tyrer v United Kingdom App no 5856/72 (ECtHR, 25 April 1978)�� 129n.32 Üner v Netherlands App no 46410/99 (ECtHR [GC], 18 October 2006�� 475n.38, 476n.45, 478n.56, 478n.60 Xhavara and others v Italy and Albania App no 39473/98 (ECtHR, 11 January 2001)�� 309n.60, 583n.78 Yeshtla v Netherlands App no 37115/11 (ECtHR, 15 January 2019)�� 265n.89 INTERNATIONAL COURT OF JUSTICE Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Qatar v United Arab Emirates) (ICJ Judgment No 172, 4 February 2021)�� 266n.97 Nottebohm (Liechtenstein v Guatemala) (Judgment, Second Phase) [1955] ICJ Rep 4, 23��501n.227

Table of EU Legislation PROTOCOLS Protocol [No 2] on the application of the principles of subsidiarity and proportionality [2004] OJ C310/207��157n.35 Protocol [No 3] on the Statute of the Court of Justice [2008] OJ C115/210�� 74n.20 Protocol [No 6] on the location of the seats of the institutions [2008] OJ C115/265�� 72n.10 Protocol [No 7] on the privileges and immunities of the European Union [2008] OJ L115/266 ��219n.127 Protocol [No 19] integrating the Schengen acquis into the framework of the European Union [2008] OJ C115/290��28, 65–66, 315n.99, 557n.43 Protocol [No 21] on the position of the United Kingdom and Ireland in respect of the area of freedom, security, and justice [2008] OJ C115/295��65–67 Protocol [No 22] on the position of Denmark [2008] OJ C115/299�� 64–65 Protocol [No 23] on external relations of the Member States with regard to the crossing of external borders [2008] OJ C115/304��328, 578–79 Protocol [No 24] on asylum for nationals of Member States of the European Union [2008] OJ C115/305�� 354–55 Protocol [No 35] on Article 67 [2006] OJ C321E/317��28 REGULATIONS Regulation No 1 determining the languages to be used by the European Economic Community [1958] OJ Spec Ed Vol I/59��159n.43 Regulation (EEC) No 1612/68 on freedom of movement for workers within the Community [1968] OJ Spec Ed I-1968(II)/475�� 20n.37 Regulation (EC) No 1683/95 laying down a uniform format for visas [1995] OJ L164/1�� 283t, 292 Regulation (EC) 2317/95 determining the third countries whose nationals must be in possession of visas [1995] OJ L234/1 ��284n.16

Regulation (EC) No 574/1999 determining the third countries whose nationals must be in possession of visas [1999] OJ L72/2 ��284n.17 Regulation (EC) No 2725/2000 concerning the establishment of ‘Eurodac’ [2000] OJ L316/1 �� 226n.12, 229n.b Regulation (EC) No 539/2001 listing the third countries whose nationals must be in possession of visas [2001] OJ L81/1��284n.21, 287, 563 Regulation (EC) No 1049/2001 regarding public access to documents [2001] OJ L145/43 ��94 Regulation (EC) No 1030/2002 laying down a uniform format for residence permits [2002] OJ L157/1 �� 254n.2, 254n.3, 312t, 334n.223 Regulation (EC) No 343/2003 establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application [2003] OJ L50/1 �� 53–54, 65n.136, 164, 341–42, 360, 366, 368–69 Regulation (EC) No 453/2003 amending Regulation (EC) No 539/2001 listing the third countries whose nationals must be in possession of visas [2003] OJ L69/10��284n.23 Regulation (EC) No 261/2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights [2004] OJ L46/1 ��296n.110 Regulation (EC) No 377/2004 on the creation of an immigration liaison officers network [2004] OJ L64/1��178n.27 Regulation (EC) No 883/2004 on the coordination of social security system [2004] OJ L166/1 �� 18–19, 437, 459n.212, 479t, 482–83, 485–86, 503–4, 555–56, 560–61, 562–63 Regulation (EC) No 2007/2004 establishing a European Agency for the Management of Operational Cooperation at the External Borders [2004] OJ L349/1 ��200–2, 203–4

xxxii Table of EU Legislation Regulation (EC) No 2252/2004 on standards for security features and biometrics in passports and travel documents issued by Member States [2004] OJ L385/1 ��66, 312t, 334–35 Regulation (EC) No 562/2006 establishing a Community Code on the rules governing the movement of persons across borders (Schengen Borders Code) [2006] OJ L105/1 �� 58n.90 Regulation (EC) No 765/2006 concerning restrictive measures in respect of Belarus [2006] OJ L134/1 ��586n.93 Regulation (EC) No 1907/2006 concerning the registration, evaluation, authorisation and restriction of chemicals (REACH) [2006] OJ L396/1�� 73n.12 Regulation (EC) No 1931/2006 laying down rules on local border traffic at the external land borders [2006] OJ L405/1�� 312t, 328 Regulation (EC) No 1932/2006 amending Regulation (EC) No 539/2001 listing the third countries whose nationals must be in possession of visas [2007] OJ L405/23 ��284n.23 Regulation (EC) No 1987/2006 on the establishment, operation and use of the second generation SIS [2006] OJ L381/4�� 188n.86, 231, 239–41 Regulation (EC) No 863/2007 establishing a mechanism for the creation of Rapid Border Intervention Teams [2008] OJ L199/30 �� 201–2 Regulation (EC) No 380/2008 amending Regulation (EC) No 1030/2002 laying down a uniform format for residence permits [2008] OJ L114/88�� 334–35 Regulation (EC) No 767/2008 concerning the Visa Information System (VIS) [2008] OJ L218/60 �� 188–89, 225–27, 229t, 233–34, 238–39, 242n.107, 243n.118, 247n.140 Regulation (EC) No 390/2009 amending the Common Consular Instructions [2009] OJ L131/1 �� 285n.32, 288–89, 291n.74, 293n.91 Regulation (EC) No 444/2009 amending Regulation (EC) No 2252/2004 on standards for security features and biometrics in passports and travel documents [2009] OJ L142/1 �� 334–35 Regulation (EC) No 810/2009 establishing a Community Code on Visas (Visa Code) [2009] OJ L243/1 �� 7–8, 28, 58–59, 154, 161–62, 168, 183n.53, 188–89,

233n.50, 255–57, 258, 271, 277, 278, 280–83, 283t, 284–85, 287, 288–95, 300, 442–43, 475n.40, 576–77, 584–85 Regulation (EU) No 265/2010 as regards movement of persons with a long-stay visa [2010] OJ L85/1��317n.110 Regulation (EU) No 439/2010 establishing a European Asylum Support Office [2010] OJ L132/11 �� 202, 203–4, 212–13 Regulation (EU) No 1231/2010 extending Regulation (EC) No 883/2004 to nationals of third countries [2010] OJ L344/1��436n.52, 479t, 485–86 Regulation (EU) No 492/2011 on freedom of movement for workers within the Union [2011] OJ L141/1�� 441n.80, 482–83 Regulation (EU) No 1168/2011 amending the initial Frontex Regulation (EC) No 2007/2004 [2011] OJ L304/1�� 201–2 Regulation (EU) No 610/2013 amending Regulation (EC) No 562/2006 establishing a Community Code on the rules governing the movement of persons across borders [2013] OJ L182/1��277, 317n.108 Regulation (EU) No 1053/2013 establishing an evaluation and monitoring mechanism to verify the application of the Schengen acquis [2013] OJ L295/27 ��314 Regulation (EU) No 1289/2013 amending the former Visa List Regulation [2013] OJ L347/74 �� 286n.38, 287n.44, 584n.84 Regulation (EU) No 603/2013 on the establishment of ‘Eurodac’ for the comparison of fingerprints [2013] OJ L180/1��65, 226n.13, 229t, 232–33, 243n.118, 247n.140, 248n.150 Regulation (EU) No 604/2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person [2013] OJ L180/31 �� 7, 47–48, 65, 77, 125, 138, 152–53, 156, 157, 164, 168–69, 171, 183–84, 189–91, 214, 244–45, 276, 325, 342, 356, 357–72, 373–75, 376–77, 409, 424, 447, 522, 533, 534–35, 536, 540, 544–45, 561 Regulation (EU) No 515/2014 establishing, as part of the Internal Security Fund, the instrument for financial support

Table of EU Legislation xxxiii for external borders and visa [2014] OJ L150/143 ��194n.121 Regulation (EU) No 516/2014 establishing the Asylum, Migration and Integration Fund [2014] OJ L150/168��194n.121 Regulation (EU) No 656/2014 establishing rules for the surveillance of the external sea borders in the context of operational cooperation coordinated by the European Agency for the Management of Operational Cooperation at the External Borders [2014] OJ L189/93 �� 58, 305, 312t, 331–34, 336 Regulation (EU) 2016/399 on a Union Code on the rules governing the movement of persons across borders (Schengen Borders Code) [2016] OJ L77/1 ��8, 17, 28, 60, 73, 138, 152–53, 154, 158–59, 161–62, 178n.29, 183n.53, 184n.63, 200n.12, 235n.63, 236, 254n.4, 255–56, 258, 259–60, 261, 268, 271, 278, 281n.6, 284n.27, 288–90, 300, 301, 312t, 313–15, 317n.104, 319–32, 334n.219, 336, 363–64, 371n.240, 442n.95, 518, 524n.134, 558n.55, 578–79 Regulation (EU) 2016/679 on the protection of natural persons with regard to the processing of personal data and the free movement of such data [2016] OJ L119/1 �� 243–44 Regulation (EU) 2016/1624 on the European Border and Coast Guard [2016] OJ L251/1��201–2, 210n.71, 320n.127 Regulation (EU) 2016/1953 on the establishment of a European travel document for the return of illegally staying third-country nationals [2016] OJ L311/13 ��537n.228 Regulation (EU) 2017/371 amending Council Regulation (EC) No 539/2001 listing the third countries whose nationals must be in possession of visas [2017] OJ L61/1 �� 286n.38, 584n.84 Regulation (EU) 2017/458 as regards the reinforcement of checks against relevant databases at external borders [2017] OJ L74/1 ��324, 326n.175 Regulation (EU) 2017/1001 on the European Union trade mark [2017] OJ L154/1 �� 73n.12 Regulation (EU) 2017/1954 amending Council Regulation (EC) No 1030/2002 laying down a uniform format for residence permits [2017] OJ L286/9 ��335n.224

Regulation (EU) 2017/2225 as regards the use of the Entry/Exit System [2017] OJ L327/28 ��236n.71, 281, 324, 325–27, 558 Regulation (EU) 2017/2226 establishing an Entry/Exit System (EES) [2017] OJ L327/28 �� 225–27, 229t, 230, 236, 243–44, 247–48, 317n.109 Regulation (EU) 2018/1240 establishing a European Travel Information and Authorisation System (ETIAS) [2018] OJ L236/1 �� 58–59, 229t, 234–35, 237–39, 241–42, 243–44, 247 Regulation (EU) 2018/1725 on the protection of natural persons with regard to the processing of personal data by the Union institutions [2018] OJ L295/39 ��248n.149 Regulation (EU) 2018/1726 on the European Union Agency for the Operational Management of Large-Scale IT Systems in the Area of Freedom, Security and Justice (eu-LISA) [2018] OJ L295/99 ��228 Regulation (EU) 2018/1806 listing the third countries whose nationals must be in possession of visas [2018] OJ L303/39 ��189, 234–35, 283–88, 299–300, 506, 584n.84 Regulation (EU) 2018/1860 on the use of the Schengen Information System (SIS) for the return of illegally staying third-country nationals [2018] OJ L312/1�� 190, 229t, 230–31, 247n.140, 524–25 Regulation (EU) 2018/1861 on the establishment, operation and use of the Schengen Information System (SIS) in the field of border checks [2018] OJ L312/14 �� 188, 189–91, 229t, 230–31, 237n.73, 241n.100, 243n.118, 244n.123, 247, 524–25 Regulation (EU) 2018/1862 on the establishment, operation and use of the SIS in criminal matters [2018] OJ L312/56 ��229t, 230–31 Regulation (EU) 2019/592 as regards the withdrawal of the United Kingdom from the Union [2019] OJ L103I/1��288n.46 Regulation (EU) 2019/816 establishing a centralised system for the identification of Member States holding conviction information on third-country nationals (ECRIS-TCN) [2019] OJ L135/1 ��230

xxxiv Table of EU Legislation Regulation (EU) 2019/817 on establishing a framework for interoperability between EU information systems in the fields of borders and visa and amending [2019] OJ L135/27�� 229t, 241–42, 247n.140 Regulation (EU) 2019/818 on establishing a framework for interoperability between EU information systems in the fields of police and judicial cooperation, asylum and migration [2019] OJ L135/27 �� 229t, 230, 241–42, 247n.140 Regulation (EU) 2019/1155 amending Regulation (EC) No 810/2009 establishing a Community Code on Visas [2019] OJ L188/25�� 58n.94, 189n.92, 281n.7, 584–85 Regulation (EU) 2019/1240 on the creation of a European network of immigration liaison officers [2019] OJ L198/88 �� 178n.27, 299n.127 Regulation (EU) 2019/1896 on the European Border and Coast Guard [2019] OJ L295/1 �� 92, 93, 154, 199, 201–2, 205–6, 206t, 207–11, 213, 215–21, 253, 298–99, 535–36, 557 Regulation (EU) 2021/695 establishing Horizon Europe [2021] OJ L170/1��193 Regulation (EU) 2021/947 establishing the Neighbourhood, Development and International Cooperation Instrument –Global Europe [2021] OJ L209/1�� 193–94, 585n.91, 591 Regulation (EU) 2021/1134 for the purpose of reforming the Visa Information System [2021] OJ L248/11 ��233–34, 237–39, 242n.107 Regulation (EU) 2021/1147 establishing the Asylum, Migration and Integration Fund [2021] OJ L251/1�� 194–95 Regulation (EU) 2021/1148 establishing the Instrument for Financial Support for Border Management and Visa Policy [2021] OJ L251/48�� 194–95 Regulation (EU) 2021/1151 as regards the establishment of the conditions for accessing other EU information systems for the purposes of the ETIAS [2021] OJ L249/7 �� 234–35 Regulation (EU) 2021/1152 as regards the establishment of the conditions for accessing other EU information systems for the purposes of the ETIAS [2021] OJ L249/15 �� 234–35, 242n.107

Regulation (EU) 2021/1529 establishing the Instrument for Pre-Accession assistance (IPA III) [2021] OJ L330/1�� 193–94 Regulation (EU) 2021/1985 amending Regulation (EC) No 765/2006 concerning restrictive measures in respect of Belarus [2021] OJ L405/1��586n.93 Regulation (EU) 2021/2303 on the European Union Agency for Asylum [2021] OJ L468/1 ��202, 205–6, 206t, 211–14, 216–21 Regulation (EU) 2022/562 as regards Cohesion’s Action for Refugees in Europe (CARE) [2022] OJ L109/1��193n.111 DIRECTIVES Directive 64/221/EEC on the co-ordination of special measures concerning the movement and residence of foreign nationals [1963/64] OJ Special Ed I/117�� 261n.56 Directive 77/486/EEC on the education of the children of migrant workers [1977] OJ L199/32 ��473n.22 Directive 96/71/EC concerning the posting of workers in the framework of the provision of services [1997] OJ L18/1�� 459–60 Directive 2000/43/EC implementing the principle of equal treatment between persons irrespective of racial or ethnic origin [2000] OJ L180/22 ��266–67, 479t, 493–94 Directive 2001/40/EC on the mutual recognition of expulsion decisions [2001] OJ L149/34 �� 534–35 Directive 2001/51/EC supplementing the provisions of Article 26 of the Convention Implementing the Schengen Agreement [2001] OJ L187/45 �� 283t, 295–97, 522 Directive 2001/55/EC on minimum standards for giving temporary protection in the event of a mass influx of displaced persons [2001] OJ L212/12 �� 346–47, 349–50, 357t, 359–60, 405–9, 425, 447n.128, 479n.64, 483n.91, 566–67 Directive 2002/90/EC defining the facilitation of unauthorised entry, transit and residence [2002] OJ L328/17 ��515–17, 515t

Table of EU Legislation xxxv Directive 2003/9/EC laying down minimum standards for the reception of asylum seekers [2003] OJ L31/18 ��341–42, 357t, 411–12, 542–43 Directive 2003/86/EC on the right to family reunification [2003] OJ L251/12 �� 27–28, 39, 48, 64–65, 101, 124n.8, 153–54, 159–61, 165, 167, 253, 257–58, 268, 271–72, 427, 430, 440–48, 440t, 452–53, 467, 474, 475n.39, 479n.64, 487–92, 495n.178, 496 Directive 2003/109/EC concerning the status of third-country nationals who are long-term residents [2004] OJ L16/44�� 27–28, 39, 126, 152n.8, 154, 158–59, 191, 253, 257, 262, 272, 418, 452–53, 457, 474, 477n.54, 478–79, 479t, 482–84, 489n.137, 494–98, 504, 527n.152, 552 Directive 2003/110/EC on transit for the purposes of removal by air [2010] OJ L321/26 �� 255n.12, 258, 259–60, 261, 535–36 Directive 2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States [2004] OJ L158/77��38, 39, 161n.57, 287n.42, 288, 440–43, 445, 554, 555–56, 559–60 Directive 2004/81/EC on the residence permit issued to third-country nationals who are victims of trafficking in human beings or who have been the subject of an action to facilitate illegal immigration, who cooperate with the competent authorities [2004] OJ L261/19��367, 515t, 520–22 Directive 2004/82/EC on the obligation of carriers to communicate passenger data [2004] OJ L261/24 �� 230n.27, 324n.160 Directive 2004/83/EC on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted [2004] OJ L304/12 ��341–42, 357n.c, 395n.416, 400–1 Directive 2004/114/EC on the conditions of admission of third-country nationals for the purposes of studies, pupil exchange, unremunerated training or voluntary service [2004] OJ L375/12�� 261n.60, 431, 453

Directive 2005/36/EC on the recognition of professional qualifications [2005] OJ L255/22 ��485, 555–56 Directive 2005/71/EC on a specific procedure for admitting third-country nationals for the purposes of scientific research [2005] OJ L289/15��431, 439–40, 440n.a, 453, 455n.184 Directive 2005/85/EC on minimum standards on procedures in Member States for granting and withdrawing refugee status [2005] OJ L326/13 �� 58, 66n.151, 341–42, 357n.c, 372, 376, 377n.289, 381–49 Directive 2008/115/EC on common standards and procedures in Member States for returning illegally staying third-country nationals [2008] OJ L348/98 ��73, 141, 152n.8, 184–85, 254n.1, 255–56, 270n.121, 271n.129, 319n.117, 329–30, 353n.94, 381, 506n.2, 512n.42, 513, 515t, 518–20, 521n.104, 524–33, 536–37, 538, 539–42, 543–47, 548 Directive 2009/16/EC on port State control [2009] OJ L131/62��517n.72 Directive 2009/50/EC on the conditions of entry and residence of third-country nationals for the purposes of highly qualified employment [2009] OJ L155/17 ��432–33, 450 Directive 2009/52/EC providing for minimum standards on sanctions and measures against employers of illegally staying third-country nationals [2009] OJ L168/24��271n.129, 506n.3, 515t, 522–24, 548 Directive 2011/36/EU on preventing and combating trafficking in human beings and protecting its victims [2011] OJ L101/1 �� 520–22 Directive 2011/51/EU amending Council Directive 2003/109/EC to extend its scope to beneficiaries of international protection [2011] OJ L32/1�� 494–98 Directive 2011/95/EU on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted [2011] OJ L337/9 �� 65, 66, 117, 124n.7, 138, 144–46, 147, 153, 156, 260, 271n.124, 272, 342, 351–52, 386–404, 408, 410, 415–19, 425, 447, 479–80, 481, 483n.90, 486–87, 489n.138

xxxvi Table of EU Legislation Directive 2011/98/EU on a single application procedure for a single permit for third-country nationals to reside and work in the territory of a Member State and on a common set of rights for third-country workers legally residing in a Member State [2011] OJ L343/1 �� 179–80, 256n.24, 272n.132, 432–33, 440t, 446, 454n.175, 454n.180, 455–57, 464–65, 467, 479–82, 483n.95, 484–86, 484n.98, 565, 566 Directive 2012/29/EU establishing minimum standards on the rights, support and protection of victims of crime [2012] OJ L315/57��484n.97 Directive 2013/32/EU on common procedures for granting and withdrawing international protection [2013] OJ L180/60 �� 65, 66, 73, 156, 157n.32, 178n.24, 179–80, 182n.44, 183–85, 256n.24, 276, 330, 342, 354, 357t, 364–65, 369–70, 372–85, 386, 389, 408–9, 412, 424–25, 527, 531, 536 Directive 2013/33/EU laying down standards for the reception of applicants for international protection [2013] OJ L180/96 �� 57–58, 167–68, 271n.124, 342, 352, 374–76, 408–9, 410–15, 425–26, 512, 527, 539, 545 Directive 2014/36/EU on the conditions of entry and stay of third-country nationals for the purpose of employment as seasonal workers [2014] OJ L94/375 �� 256n.24, 257n.26, 271n.131, 418n.566, 433, 440t, 463–64, 467–68, 475n.40, 479n.64, 482n.82, 486, 522, 593n.139 Directive 2014/66/EU on the conditions of entry and residence of third-country nationals in the framework of an intra-corporate transfer [2014] OJ L157/1�� 126, 255n.17, 257n.26, 271n.131, 418n.566, 432–33, 438n.64, 440t, 450n.142, 457–58, 461–63, 467–68, 484n.98, 489n.139, 566 Directive (EU) 2016/801 on the conditions of entry and residence of third-country nationals for the purposes of research, studies, training, voluntary service, pupil exchange schemes or educational projects and au pairing [2016] OJ L132/21��154, 178n.23, 253, 256n.24, 257–58, 272n.132, 277, 409n.517, 418n.565, 432n.33, 440t, 443, 450n.142, 453–55, 457–58, 467, 479–80, 489n.139 Directive (EU) 2018/957 amending Directive 96/71/EC concerning the

posting of workers in the framework of the provision of services [2018] OJ L173/16 ��460n.214 Directive (EU) 2021/1883 on the conditions of entry and residence of third-country nationals for the purpose of highly qualified employment [2021] OJ L382/1�� 124n.8, 152n.8, 256n.24, 271n.131, 272n.136, 409n.517, 418n.565, 433n.39, 437n.54, 450–53, 457–58, 467, 475n.39, 479n.64, 484n.98, 489n.139, 495n.178, 497, 593 DECISIONS Decision 85/381/EC setting up a prior communication and consultation procedure on migration policies [1985] OJ L217/25 �� 25n.74 Decision 94/262/ECSC, EC, Euratom governing the performance of the Ombudsman’s duties [1994] OJ L113/15 ��91n.100 Decision 96/198/JHA on an alert and emergency procedure for burden- sharing [1996] OJ L63/10 ��359n.139 Decision 97/340/JHA on the exchange of information concerning assistance for the voluntary repatriation [1997] OJ L147/3 ��531n.180 Decision SCH/Com-ex (98)10 of the Executive Committee on cooperation in returning foreign nationals by air [2000] OJ L239/193��535n.213 Decision SCH/Com-ex (98) 37 on the adoption of measures to fight illegal immigration [2000] OJ L293/203 ��298n.126 Decision SCH/Com-ex (99)13 on the definitive versions of the Common Manual and the Common Consular Instructions [2000] OJ L239/317�� 284n.20 Decision 1999/352/EC, ECSC, Euratom establishing the European Anti-Fraud Office [1999] OJ L136/20��92n.107 Decision 1999/437/EC on certain arrangements for the application of the Agreement concluded by the Council of the European Union and the Republic of Iceland and the Kingdom of Norway concerning the association of those two States with the Schengen acquis [1999] OJ L176/31��229n.d, 515n.b Decision 2000/365 concerning the request of the United Kingdom to take part in some of the provisions of the Schengen acquis [2000] OJ L131/43 �� 66n.145

Table of EU Legislation xxxvii Decision 2000/596/EC establishing a European Refugee Fund [2000] OJ L252/12 ��194n.119 Decision 2002/192 concerning Ireland’s request to take part in some of the provisions of the Schengen acquis [2002] OJ L64/20 �� 66n.145, 229n.f Decision 2002/463/EC adopting an ARGO programme [2002] OJ L161/11 ��194n.119 Framework Decision 2002/946/JHA on the strengthening of the penal framework to prevent the facilitation of unauthorised entry, transit and residence [2002] OJ L328/1��515–17, 515t Decision 2003/690/EC on the request by Ireland to accept Council Directive 2001/55/EC on minimum standards for giving temporary protection [2003] OJ L251/23 ��357t, 405–9 Decision 2004/191/EC setting out the criteria and practical arrangements for the compensation of the financial imbalances resulting from the application of Directive 2001/40/EC [2004] OJ L60/55 ��535n.212 Decision 2004/512/EC establishing the Visa Information System (VIS) [2004] OJ L213/5 ��233n.47 Decision 2004/573/EC on the organisation of joint flights for removals from the territory of two or more Member States [2004] OJ L261/28 �� 178n.29, 536n.218 Decision 2004/904/EG establishing the European Refugee Fund for the period 2005 to 2010 [2004] OJ L381/52 �� 194n.119, 522–24 Decision 2004/927/EC providing for certain areas covered by Title IV of Part Three of the EX Treaty to be governed by the procedure laid down in Article 251 of that Treaty [2004] OJ L396/45�� 28n.92 Decision 2006/188/EC on the conclusion of the Agreement extending to Denmark the provisions of the former Dublin II Regulation (EC) No 343/2003 [2006] OJ L66/37��65n.136 Decision 2006/688/EC on the establishment of a mutual information mechanism concerning Member States’ measures [2006] OJ L283/40 ��547n.322 Decision 2007/435/EC establishing the European Fund for the Integration of Third-Country Nationals [2007] OJ L168/18 ��194n.120

Decision 2007/573/EC establishing the European Refugee Fund [2007] OJ L144/1 ��194n.120 Decision 2007/574/EC establishing the External Borders Fund [2007] OJ L144/22 ��194n.120 Decision 2007/575/EC establishing the European Return Fund [2007] OJ L144/45 ��194n.120 Decision 2008/381/EC establishing a European Migration Network [2008] OJ L131/7��178n.25 Decision 2008/615/JHA on the stepping up of cross-border cooperation [2008] OJ L210/1 ��535n.216 Decision 2008/633/JHA concerning access for consultation of the VIS [2008] OJ L218/129 ��226n.15 Decision 2009/350/EC on the request by Ireland to accept Council Decision 2008/381/EC [2009] OJ L108/5 ��66n.145 Decision 2009/937/EU adopting the Council’s Rules of Procedure [2009] OJ L325/35 �� 53n.60 Decision 2010/365/EU on the application of the provisions relating to the SIS in the Republic of Bulgaria and Romania [2010] OJ L166/17 �� 229n.c Decision 2012/776/EU on the position to be taken within the Association Council with regard to the adoption of provisions on the coordination of social security systems [2012] OJ L340/19��563n.89 Decision 2013/233/CFSP on the European Union Integrated Border Management Assistance Mission in Libya (EUBAM Libya) [2013] OJ L138/15 ��587n.103 Decision 2014/668/EU on the signing and provisional application of the Association Agreement, as regards Title III [2014] OJ L278/1 �� 552n.8 Decision (CFSP) 2015/778 on a European Union military operation in the Southern Central Mediterranean (EUNAVFOR MED) [2015] OJ L122/31 ��588n.105 Decision (EU) 2015/1523 establishing provisional measures in the area of international protection for the benefit of Italy and Greece [2015] OJ L239/146 ��64–65, 82, 274, 344, 350–51, 357t, 360–61 Decision (EU) 2015/1601 establishing provisional measures in the area of international protection for the

xxxviii Table of EU Legislation benefit of Italy and Greece [2015] OJ L248/80 �� 54n.73, 64–65, 82, 274, 344, 350–51, 357t, 360–61 Decision (CFSP) 2016/993 amending Decision (CFSP) 2015/778 on a European Union military operation in the Southern Central Mediterranean [2016] OJ L162/18 ��588n.105 Decision (EU) 2017/733 on the application of the provisions of the Schengen acquis relating to the SIS in the Republic of Croatia [2018] OJ L165/37��229n.c Decision (EU) 2017/1908 on the putting into effect of certain provisions relating to the VIS in the Republic of Bulgaria and Romania [2017] OJ L269/39 ��229n.a Decision (EU) 2018/934 on the putting into effect of the remaining provisions of the SIS in the Republic of Bulgaria and Romania [2018] OJ L165/37��229n.e Decision (EU) 2018/1993 on the EU Integrated Political Crisis Response Arrangements [2018] OJ L320/28�� 576n.34 Decision (EU) 2019/267 concerning the conclusion of the Status Agreement between the EU and Albania [2019] OJ L46/3��210n.70 Decision (CFSP) 2020/472 on a European Union military operation in the Mediterranean (EUNAVFOR MED IRINI) [2020] OJ L101/4��588 Decision (EU) 2020/1745 on the putting into effect of the provisions of the Schengen acquis in Ireland [2020] OJ L393/3��66n.145 Decision (EU) 2021/1781 on the suspension of certain provisions of Regulation (EC) No 810/2009 with respect to The Gambia [2021] OJ L360/124 ��585n.89 Decision (EU) 2022/366 on the partial suspension of the application of the Agreement between the European Union and the Republic of Vanuatu on the short-stay visa waiver [2022] OJ 2022 L69/105��285n.31 Decision (EU) 2022/382 establishing the existence of a mass influx of displaced persons from Ukraine and having the effect of introducing temporary protection [2022] OJ L71/1�� 357t, 406, 408n.512 RECOMMENDATIONS Council Recommendation on harmonising means of combating

illegal immigration and illegal employment [1996] OJ C5/1��514n.55 Council Recommendation concerning a specimen bilateral readmission agreement [1996] OJ C274/20 �� 537–38 Council Recommendation on the guiding principles to be followed in drawing up protocols [1996] OJ C274/25 ��537n.229 Council Recommendation on combating the illegal employment [1996] OJ C304/1 ��522n.114 Council Resolution on measures to be adopted on the combating of marriages of convenience [1997] OJ C382/1 ��430n.14 Commission Recommendation (EU) 2015/914 on a European Resettlement Scheme [2015] OJ L148/32��421n.582 Commission Recommendation for a voluntary humanitarian admission scheme with Turkey, C(2015) 9490 final��421n.585 Commission Recommendation (EU) 2017/1803 on enhancing legal pathways [2017] OJ L259/21��421n.583 Commission Recommendation (EU) 2017/1804 on the implementation of the provisions of the Schengen Borders Code on temporary reintroduction of border control [2017] OJ L259/125 ��320n.131 Commission Recommendation (EU) 2017/432 on making returns more effective [2017] OJ L66/15��524n.135, 525n.137, 528n.168, 541n.260 Commission Recommendation (EU) 2017/ 820 on proportionate police checks and police cooperation in the Schengen area [2017] OJ C122/79��322n.145 Commission Recommendation (EU) 2017/2338 establishing a common ‘Return Handbook’ [2017] OJ L339/83 �� 60n.98, 528n.160 Commission Recommendation establishing a common ‘Practical Handbook for Border Guards’, C(2019) 7131 final �� 60n.98, 528n.160 Commission Recommendation (EU) 2020/1364 on legal pathways to protection in the EU [2020] OJ C317/13��421n.583, 423n.599 Commission Recommendation (EU) 2020/1365 concerning operations carried out by vessels owned or operated by private entities for the purpose of search and rescue activities [2020] OJ L317/23 ��518n.75

Table of EU Legislation xxxix Commission Recommendation (EU) 2020/ 1366 on a Migration Preparedness and Crisis Blueprint [2020] OJ C317/26�� 345n.46 Council Recommendation (EU) 2020/912 on the temporary restriction on non-essential travel into the EU [2020] OJ C208I/1 ��60n.103 Commission Recommendation on immediate steps in the context of the Russian invasion of Ukraine, C(2022) 2028 final ��502n.232 INTERNATIONAL AGREEMENTS Agreement between the European Community and its Member States, of the one part, and the Swiss Confederation, of the other, on the Free Movement of Persons (adopted 21 June 1999, entered into force 1 June 2002) [2002] OJ L114/6 �� 555–56 Agreement between the European Community and the Islamic Republic of Pakistan on the readmission of persons residing without authorisation (adopted 26 October 2010, entered into force 1 December 2010) [2010] OJ L287/52��537n.227 Agreement between the European Community and the Republic of Serbia on the facilitation of the issuance of visas (adopted 18 September 2007, entered into force 1 January 2008) [2007] OJ L334/137�� 286n.36 Agreement between the European Union and Georgia on the facilitation of the issuance of visas (adopted 22 November 2010, entered into force 1 March 2011) [2011] OJ L52/34�� 235n.66 Agreement between the European Union and the Republic of Armenia on the facilitation of the issuance of visas (adopted 17 December 2014, entered into force 1 January 2014) [2013] OJ L289/2��286n.36 Agreement concerning the criteria and mechanisms for establishing the State responsible for examining a request for asylum lodged in a Member State or in Iceland or Norway (adopted 19 January 2001, entered into force 1 April 2001) [2001] OJ L93/40�� 557–58 Agreement concerning the criteria and mechanisms for establishing the State responsible for examining a request for asylum lodged in a Member State or in Switzerland (adopted of

26 October 2004, entered into force 1 March 2008) [2008] OJ L53/5�� 557–58 Agreement concluded by the Council of the European Union and the Republic of Iceland and the Kingdom of Norway concerning the latters’ association with the Schengen acquis (adopted 18 May 1999, entered into force 26 June 2000) [1999] OJ L176/36��557–58 Agreement establishing an Association between the European Economic Community and Turkey (adopted 12 September 1963, entered into force 1 December 1964) [1977] OJ L361/29 �� 553–54, 561–64 ——Decision No 1/80 of the Association Council on the development of the association [not published in the OJ]��561–64 ——Decision No 3/80 of the Association Council on the application of the social security schemes to Turkish workers and members of their families [1983] OJ C110/60�� 561–64 Agreement on the European Economic Area (adopted 2 May 1992, entered into force 1 January 1994) [1994] OJ L1/3 �� 173–74, 325–26, 551–52, 555–56, 558, 559–60, 568–69 Agreement on the Gradual Abolition of Checks at their Common Borders (adopted and entered into force 14 June 1985) [2000] OJ L239/13�� 13, 24–26 Agreement on the Swiss Confederation’s association with the implementation, application and development of the Schengen acquis (adopted 26 October 2004, entered into force 1 March 2008) [2008] OJ L53/52�� 557–58 Agreement on the Withdrawal of the UK from the EU (adopted of 24 January 2020, entered into force 1 February 2020) [2020] OJ L29/7�� 9, 67, 495–96, 552–53, 554, 559–60, 569 Association Agreement between the European Union and its Member States, of the one part, and Ukraine, of the other part (adopted 27 June 2014, entered into force 1 September 2017) [2014] OJ L161/3 �� 566–67 Convention Determining the State Responsible for Examining Applications for Asylum Lodged in one of the Member States of the European Communities (adopted 15 June 1990, entered into force 1 September 1997) [1997] OJ C254/1 �� 13, 27, 232, 341, 357–60, 363n.169, 365–70, 582

xl Table of EU Legislation Convention for the Protection of Individuals with Regard to Automatic Processing of Personal Data (adopted 20 January 1981, entered into force 1 October 1985) ETS No 108��243n.117 Convention Implementing the Schengen Agreement of 14 June 1985 (adopted 19 June 1990, entered into force 1 September 1993) [2000] OJ L239/19 �� 24–26, 34–35, 64, 190, 230n.28, 284n.19, 288–89, 295–97, 298n.125, 311–19, 313n.76, 325n.169, 328n.185, 331n.202, 341, 358, 515–17, 518n.77, 524n.131, 527n.152, 536n.219 Convention on the Reduction of Cases of Multiple Nationality and Military Obligations in Cases of Multiple Nationality (adopted 6 May 2002, entered into force 28 March 1968) ETS No 43��126n.18 Convention on the Reduction of Statelessness (adopted 30 August 1961, entered into force 13 December 1975) 989 UNTS 175�� 126–27 Convention relating to the Status of Refugees (adopted 28 July 1951, entered into force 22 April 1954) 189 UNTS 137, as amended by the Protocol relating to the Status of Refugees (adopted 31 January 1967, entered into force 4 October 1967) 606 UNTS 267�� 6, 14, 17–18, 72, 102, 108, 112, 122–24, 137, 143–47, 148, 149, 159, 174, 296, 307, 338, 339–40, 341, 349–56, 372, 383–84, 390–91, 394–95, 398–401, 404, 405, 415–19, 420, 423, 425–26, 460, 481–82, 498, 518, 553, 570, 578, 591–93 Council of Europe Agreement on Transfer of Responsibility for Refugees (adopted 16 October 1980, entered into force 1 December 1982) ETS No 107�� 370–71, 417–18 Council of Europe Convention on Action against Trafficking in Human Beings (adopted 16 May 2005, entered into force 1 February 2008) ETS No 197��521n.97 Euro-Mediterranean Agreement establishing an association between the European Communities and their Member States, of the one part, and the Republic of Tunisia, of the other part (adopted 17 July 1995, entered into force 1 March 1998) [1998] OJ L97/2�� 567–68 Euro-Mediterranean Agreement establishing an Association between the European Communities and their

Member States, of the one part, and the Arab Republic of Egypt, of the other part (adopted 25 June 2001, entered into force 1 June 2004) [2004] OJ L304/39 �� 567–68 Europe Agreement establishing an association between the European Communities and their Member States, of the one part, and the Republic of Poland, of the other part (adopted 16 December 1991, entered into force 1 February 1994) [1993] OJ L348/2�� 564–65 European Convention for the Prevention of Torture (CPT) (adopted 26 November 1987, entered into force 1 February 1989) ETS No 126�� 139–40 European Convention on Establishment (adopted 13 December 1955, entered into force 23 February 1965) ETS No 19�� 19, 125 European Convention on Nationality (adopted 6 November 1997, entered into force 1 March 2000) ETS No 166�� 501 European Convention on Social and Medical Assistance (adopted 11 December 1953, entered into force 1 July 1954) ETS No 14 ��472 European Convention on the Legal Status of Migrant Workers (adopted 24 November 1977, entered into force 1 May 1983) ETS No 93��472 European Social Charter (adopted 18 October 1961, entered into force 26 February 1965) ETS No 35; and Revised European Social Charter (adopted 3 May 1996, entered into force 1 July 1999) ETS No 163��139, 392, 438, 513 General Agreement on Trade in Services (adopted 15 April 1994, entered into force 1 January 1995) [1994] OJ L336/191 �� 460–62, 467–68 [ILO] Migrant Workers (Supplementary Provisions) Convention [No 143] (adopted 24 June 1975, entered into force 9 December 1978) 1120 UNTS 323��522 [ILO] Migration for Employment Convention [No 97] (adopted 1 July 1949, entered into force 22 January 1952) 120 UNTS 1616�� 482–83 [ILO] Migration for Employment Convention [No 66] (adopted 28 June 1939, never entered into force)�� 19n.29 International Convention on Maritime Search and Rescue (SAR Convention) (adopted 27 April 1979, entered into force 22 June 1985) 1405 UNTS 118��308–9

Table of EU Legislation xli International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families (adopted 18 December 1990, entered into force 1 July 2003) 2220 UNTS 3�� 513n.47 International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171�� 139–40, 309n.58 International Covenant on Economic, Social and Cultural Rights (adopted 16 December 1966, entered into force 3 January 1976) 993 UNTS 3��307n.44 Partnership Agreement between the members of the African, Caribbean and Pacific Group of States and the European Community and its Member States (adopted 23 June 2000, entered into force 1 April 2003) [2000] OJ L317/6 �� 537–38, 551–52 Partnership and Cooperation Agreement between the European Communities and their Member States, of the one part, and the Russian Federation, of the other part (adopted 24 June 1996, entered into force 1 December 1997) [1997] OJ L327/3 ��566n.111 Partnership and Cooperation Agreement between the European Communities and their Member States, of the one part, and the Republic of Azerbaijan, of the other part (adopted 22 April 1996, entered into force 1 July 1999) [1999] OJ L246/3 �� 566–67 Protocol against the Smuggling of Migrants by Land, Sea, and Air (adopted 15 November 2000, entered into force 28 January 2004) [2006] OJ L262/34�� 332–33, 507–8, 515–17, 518n.77, 548 Protocol on Social Security Coordination [2021] OJ L149/2292, which is attached to the Trade and Cooperation Agreement (adopted 30 December 2020, provisionally applied 1 January 2021, entered into force 1 May 2021) [2021] OJ L149/10�� 552–54, 560–61 Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children (adopted 15 November 2000, entered into force 25 December 2003) [2006] OJ L262/51�� 520n.93 Prüm Convention on the stepping up of cross-border cooperation, particularly in combating terrorism, cross-border

crime and illegal migration (adopted 27 May 2005, entered into force 23 November 2006) [2006] Federal Law Gazette (Bundesgesetzblatt) II/626�� 535 Stabilisation and Association Agreement between the European Communities and their Member States of the one part, and the Republic of Serbia, of the other part (adopted 29 April 2008, entered into force 1 September 2013) [2013] OJ L278/16 ��565n.102 Stabilisation and Association Agreement between the European Union and the European Atomic Energy Community, of the one part, and Kosovo, of the other part (adopted 27 October 2015, entered into force 1 April 2016) [2016] OJ L71/3 �� 565–66 Status Agreement between the European Union and the Republic of Albania on actions carried out by the European Border and Coast Guard Agency (adopted 5 October 2018, entered into force 1 May 2019) [2019] OJ L46/3��209–10 Statute of the Council of Europe (adopted 5 May 1949, entered into force 3 August 1949) ETS No 1�� 124–25 Trade and Cooperation Agreement between the European Union and the European Atomic Energy Community, of the one part, and the United Kingdom of Great Britain and Northern Ireland, of the other part (adopted 30 December 2020, provisionally applied 1 January 2021, entered into force 1 May 2021) [2021] OJ L149/10 �� 551–53, 554, 560–61 United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (adopted 10 December 1984, entered into force 26 June 1987) 1465 UNTS 85��139–40 United Nations Convention on the Law of the Sea (adopted 10 December 1982, entered into force 16 November 1994) [1998] OJ L179/3 �� 308–9, 517–18 United Nations Convention on the Rights of the Child (adopted 20 November 1989, entered into force 2 September 1990) 1577 UNTS 3 �� 135–36 Vienna Convention on the Law of Treaties (adopted 23 May 1969, entered into force 27 January 1980) 1155 UNTS 331�� 130n.38, 145n.132, 159–60, 314n.93

List of Abbreviations AG AMIF Regulation (EU) 2021/1147 Anti-Trafficking Directive 2011/36/EU Asylum and Migration Interoperability Regulation (EU) 2019/ 818 Asylum Procedures Directive 2013/32/EU Blue Card Directive (EU) 2021/1883 BMVI Regulation (EU) 2021/1148 Borders and Visa Interoperability Regulation (EU) 2019/ 817 Carrier Sanctions Directive 2001/51/EC CEAS CFR CISA CJEU CML Rev Convention Implementing the Schengen Agreement CRC CUP Dublin II Regulation (EC) No 343/2003 Dublin III Regulation (EU) No 604/2013 EASO ECA

Advocate General Regulation (EU) 2021/1147 establishing the Asylum, Migration and Integration Fund [2021] OJ L251/1, with later amendments Directive 2011/36/EU on preventing and combating trafficking in human beings and protecting its victims [2011] OJ L101/1 Regulation (EU) 2019/818 on establishing a framework for interoperability between EU information systems in the fields of police and judicial cooperation, asylum and migration [2019] OJ L135/27, with later amendments Directive 2013/32/EU on common procedures for granting and withdrawing international protection [2013] OJ L180/60 Directive (EU) 2021/1883 on the conditions of entry and residence of third-country nationals for the purpose of highly qualified employment [2021] OJ C382/1 Regulation (EU) 2021/1148 establishing the Instrument for Financial Support for Border Management and Visa Policy [2021] OJ L251/48 Regulation (EU) 2019/817 on establishing a framework for interoperability between EU information systems in the fields of borders and visa and amending [2019] OJ L135/27, with later amendments Directive 2001/51/EC supplementing the provisions of Article 26 of the Convention Implementing the Schengen Agreement [2001] OJ L187/45 Common European Asylum System Charter of Fundamental Rights of the European Union see Convention Implementing the Schengen Agreement Court of Justice of the European Union Common Market Law Review Convention Implementing the Schengen Agreement of 14 June 1985 (adopted 19 June 1990, entered into force 1 September 1993) [2000] OJ L239/19 Convention on the Rights of the Child Cambridge University Press Regulation (EC) No 343/2003 establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States [2003] OJ L50/1 Regulation (EU) No 604/2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States [2013] OJ L180/31 European Asylum Support Office European Court of Auditors

xliv List of Abbreviations ECHR

ECRE ECtHR ed/eds EDPS EEA EES Regulation (EU) 2017/ 2226 EES EJIL EJML ELJ ELRev EMN Employers Sanctions Directive 2009/52/EC EP EPRS ETIAS Regulation (EU) 2018/1240 ETIAS ETS EUAA Regulation (EU) 2021/2303 EUAA EuConst Eurodac Regulation (EU) No 603/2013 Eurostat ExCom Facilitators Directive 2002/ 90/EC Facilitators Framework Decision 2002/946/JHA Family Reunification Directive 2003/86/EC former Asylum Procedures Directive 2005/85/EC former Blue Card Directive 2009/50/EC former EASO Regulation (EU) No 439/2010

Convention for the Protection of Human Rights and Fundamental Freedoms (adopted 4 November 1950, entered into force 3 September 1953) ETS No 5, as amended by Protocol No 15 (adopted of 24 June 2013, entered into force 1 August 2021) ETS No 213 European Council on Refugees and Exiles European Court of Human Rights editor/editors European Data Protection Supervisor European Economic Area Regulation (EU) 2017/2226 establishing an Entry/Exit System (EES) [2017] OJ L327/28, with later amendments Entry/Exit System European Journal of International Law European Journal of Migration and Law European Law Journal European Law Review European Migration Network Directive 2009/52/EC providing for minimum standards on sanctions and measures against employers of illegally staying third-country nationals [2009] OJ L168/24 European Parliament European Parliamentary Research Service Regulation (EU) 2018/1240 establishing a European Travel Information and Authorisation System (ETIAS) [2018] OJ L236/ 1, with later amendments European Travel Information and Authorisation System European Treaty Series Regulation (EU) 2021/2303 on the European Union Agency for Asylum [2021] OJ L468/1 European Union Asylum Agency European Constitutional Law Review Regulation (EU) No 603/2013 on the establishment of ‘Eurodac’ for the comparison of fingerprints [2013] OJ L180/1, with later amendments Statistical Office of the European Union Executive Committee Directive 2002/90/EC defining the facilitation of unauthorised entry, transit and residence [2002] OJ L328/17 Framework Decision 2002/946/JHA on the strengthening of the penal framework to prevent the facilitation of unauthorised entry, transit and residence [2002] OJ L328/1 Directive 2003/86/EC on the right to family reunification [2003] OJ L251/12 Directive 2005/85/EC on minimum standards on procedures in Member States for granting and withdrawing refugee status [2005] OJ L326/13 Directive 2009/50/EC on the conditions of entry and residence of third-country nationals for the purposes of highly qualified employment [2009] OJ L155/17 Regulation (EU) No 439/2010 establishing a European Asylum Support Office [2010] OJ L132/11

list of Abbreviations xlv former Frontex Regulation (EC) No 2007/2004 former Frontex Regulation (EU) 2016/1624 former Qualification Directive 2004/83/EC former Reception Directive 2003/9/EC former Researchers Directive 2005/71/EC former Schengen Borders Code Regulation (EC) No 562/2006 former Students Directive 2004/114/EC former Visa List Regulation (EC) No 539/2001 FRA Free Movement Directive 2004/38/EC Frontex Regulation (EU) 2019/1896 GC Geneva Convention GLJ HRC ibid ICCPR ICESCR ICLQ ICON ICT ICT Directive 2014/66/EU IJRL ILO IM Rev IOM JCMS

Regulation (EC) No 2007/2004 establishing a European Agency for the Management of Operational Cooperation at the External Borders [2004] OJ L349/1 Regulation (EU) 2016/1624 on the European Border and Coast Guard [2016] OJ L251/1 Directive 2004/83/EC on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted [2004] OJ L304/12 Directive 2003/9/EC laying down minimum standards for the reception of asylum seekers [2003] OJ L31/18 Directive 2005/71/EC on a specific procedure for admitting third-country nationals for the purposes of scientific research [2005] OJ L289/15 Regulation (EC) No 562/2006 establishing a Community Code on the rules governing the movement of persons across borders (Schengen Borders Code) [2006] OJ L105/1 Directive 2004/114/EC on the conditions of admission of third- country nationals for the purposes of studies, pupil exchange, unremunerated training or voluntary service [2004] OJ L375/12 Regulation (EC) No 539/2001 listing the third countries whose nationals must be in possession of visas when crossing the external borders [2001] OJ L81/1 EU Agency for Fundamental Rights Directive 2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States [2004] OJ L158/77, with later amendments Regulation (EU) 2019/1896 on the European Border and Coast Guard [2019] OJ L295/1, with later amendments Grand Chamber See Refugee Convention German Law Journal Human Rights Committee ibidem/in the same place/the same International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171 International Covenant on Economic, Social and Cultural Rights (adopted 16 December 1966, entered into force 3 January 1976) 993 UNTS 3 International and Comparative Law Quarterly International Journal of Constitutional Law intra-corporate transfers Directive 2014/66/EU on the conditions of entry and residence of third-country nationals in the framework of an intra- corporate transfer [2014] OJ L157/1 International Journal of Refugee Law International Labour Organization International Migration Review International Organization for Migration Journal of Common Market Studies

xlvi List of Abbreviations JEMS Local Border Traffic Regulation (EC) No 1931/2006 Long-Term Residents Directive 2003/109/EC MN NDICI Regulation (EU) 2021/947 OJ OUP PACE para/s Passports and Travel Documents Regulation (EC) No 2252/2004 Posted Workers Directive 96/71/EC Qualification Directive 2011/95/EU

Racial Equality Directive 2000/43/EC Reception Directive 2013/ 33/EU Recognition of Professional Qualifications Directive 2005/36/EC Refugee Convention

Relocation Decisions (EU) 2015/1523 & (EU) 2015/ 1601 Residence Permit Format Regulation (EC) No 1030/2002 Return Directive 2008/ 115/EC

Journal of Ethnic and Migration Studies Regulation (EC) No 1931/2006 laying down rules on local border traffic at the external land borders of the Member States [2006] OJ L405/1, with later amendments Directive 2003/109/EC concerning the status of third-country nationals who are long-term residents [2004] OJ L16/44, as amended by Directive 2011/51/EU to extend its scope to beneficiaries of international protection [2011] OJ L132/1 margin number/note Regulation (EU) 2021/947 establishing the Neighbourhood, Development and International Cooperation Instrument [2021] OJ L209/1 Official Journal of the European Union Oxford University Press Parliamentary Assembly of the Council of Europe paragraph/s Regulation (EC) No 2252/2004 on standards for security features and biometrics in passports and travel documents issued by Member States [2004] OJ L385/1, with later amendments Directive 96/71/EC concerning the posting of workers in the framework of the provision of services [1997] OJ L18/1, as amended by Directive (EU) 2018/957 [2018] OJ L173/16 Directive 2011/95/EU on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted [2011] OJ L337/9 Directive 2000/43/EC implementing the principle of equal treatment between persons irrespective of racial or ethnic origin [2000] OJ L180/22 Directive 2013/33/EU laying down standards for the reception of applicants for international protection [2013] OJ L180/96 Directive 2005/36/EC on the recognition of professional qualifications [2005] OJ L255/22, as amended by Directive 2013/55/EU [2013] OJ L158/368 Convention relating to the Status of Refugees (adopted 28 July 1951, entered into force 22 April 1954) 189 UNTS 137, as amended by the Protocol relating to the Status of Refugees (adopted 31 January 1967, entered into force 4 October 1967) 606 UNTS 267 Decision (EU) 2015/1523 establishing provisional measures in the area of international protection for the benefit of Italy and Greece [2015] OJ L239/146; and Decision (EU) 2015/1601 for the benefit of Italy and Greece [2015] OJ L248/80, with later amendments Regulation (EC) No 1030/2002 laying down a uniform format for residence permits for third-country nationals [2002] OJ L157/1, with later amendments Directive 2008/115/EC on common standards and procedures in Member States for returning illegally staying third-country nationals [2008] OJ L348/98

list of Abbreviations xlvii Schengen Borders Code Regulation (EU) 2016/ 399 Schengen Implementing Convention Sea Borders Regulation (EU) No 656/2014 Seasonal Workers Directive 2014/36/EU Single Permit Directive 2011/98/EU

SIS Border Checks Regulation (EU) 2018/ 1861 SIS Criminal Matters Regulation (EU) 2018/ 1862 SIS Return Regulation (EU) 2018/1860 SIS Social Security Coordination Regulation (EC) No 883/2004 Students and Researchers Directive (EU) 2016/801

Temporary Protection Directive 2001/55/EC Temporary Protection Implementing Decision (EU) 2022/382 TEU TFEU Treaty of Amsterdam

Regulation (EU) 2016/399 on a Union Code on the rules governing the movement of persons across borders (Schengen Borders Code) [2016] OJ L77/1, with later amendments see Convention Implementing the Schengen Agreement Regulation (EU) No 656/2014 establishing rules for the surveillance of the external sea borders in the context of operational cooperation coordinated by the European Agency for the Management of Operational Cooperation [2014] OJ L189/93) Directive 2014/36/EU on the conditions of entry and stay of third-country nationals for the purpose of employment as seasonal workers [2014] OJ L94/375) Directive 2011/98/EU on a single application procedure for a single permit for third-country nationals to reside and work in the territory of a Member State and on a common set of rights for third-country workers legally residing in a Member State [2011] OJ L343/1 Regulation (EU) 2018/1861 on the establishment, operation and use of the Schengen Information System (SIS) in the field of border checks [2018] OJ L312/14, with later amendments Regulation (EU) 2018/1862 on the establishment, operation and use of the SIS in criminal matters [2018] OJ L312/56, with later amendments Regulation (EU) 2018/1860 on the use of the Schengen Information System (SIS) for the return of illegally staying third- country nationals [2018] OJ L312/1, with later amendments Schengen Information System Regulation (EC) No 883/2004 on the coordination of social security system) [2004] OJ L166/1, with later amendments, as extended to legally resident third country nationals by Regulation (EU) No 1231/2010 [2010] OJ L344/1 Directive (EU) 2016/801 on the conditions of entry and residence of third-country nationals for the purposes of research, studies, training, voluntary service, pupil exchange schemes or educational projects and au pairing [2016] OJ L132/21, with later amendments Directive 2001/55/EC on minimum standards for giving temporary protection in the event of a mass influx of displaced persons [2001] OJ L212/12 Implementing Decision (EU) 2022/382 establishing the existence of a mass influx of displaced persons from Ukraine and having the effect of introducing temporary protection [2022] OJ L71/1 Treaty on European Union, as amended by the Treaty of Lisbon (adopted 13 December 2007, entered into force on 1 December 2009) [2008] OJ C115/13 Treaty on the Functioning of the European Union (adopted 13 December 2007, entered into force 1 December 2009) [2008] OJ C115/47 Treaty of Amsterdam (adopted 2 October 1997, entered into force 1 May 1999) [1997] OJ C340/173

xlviii List of Abbreviations Treaty of Maastricht UN UNGA UNHCR UNTS UP Victims of Trafficking Directive 2004/81/EC Vienna Convention on the Law of Treaties VIS Regulation (EC) No 767/2008 VIS Visa Code Regulation (EC) No 810/2009 Visa Format Regulation (EC) No 1683/95 Visa List Regulation (EU) 2018/1806

Treaty of Maastricht (adopted 7 February 1992, entered into force 1 November 1993) [1992] OJ C224/36 United Nations UN General Assembly United Nations High Commissioner for Refugees United National Treaty System University Press Directive 2004/81/EC on the residence permit issued to third- country nationals who are victims of trafficking in human beings who cooperate with the competent authorities [2004] OJ L261/19 Vienna Convention on the Law of Treaties (adopted 23 May 1969, entered into force 27 January 1980) 1155 UNTS 331 Regulation (EC) No 767/2008 concerning the Visa Information System (VIS) [2008] OJ L218/60, with later amendments Visa Information System Regulation (EC) No 810/2009 establishing a Community Code on Visas (Visa Code) [2009] OJ L243/1, with later amendments Regulation (EC) No 1683/95 laying down a uniform format for visas [1995] OJ L164/1, with later amendments Regulation (EU) 2018/1806 listing the third countries whose nationals must be in possession of visas when crossing the external borders [2018] OJ L303/39, with later amendments

Introduction European Migration Law as a Field of Inquiry

Migration law is politically contested, practically relevant, and full of legal conundrums. This book has been written to help readers navigate the often Byzantine European rulebook at a time where it has become increasingly difficult to keep an oversight. More than three dozen directives and regulations will be discussed throughout this volume, together with numerous court judgments, international treaties, reform proposals, and factual developments on the ground. Our objective is to provide readers with a mental map which empowers them to find solutions to pressing political, practical, and legal challenges. Eighteen chapters will present core features of visas and border controls, asylum and legal migration, integration and return, association agreements, and international cooperation. This comprehensive assessment of ‘European migration law’ introduces beginners to the state of the art and serves as a reliable inventory for experts. The need for an overarching treatise is apparent: the sheer complexity of the legislation, feedback loops between rules on related themes, and discrepancies between the law in the books and law in practice render it a formidable challenge to understand the rulebook and its implications. Questions of legal interpretation coalesce with the policy design and factual events. We will combine these aspects. Careful inspection of EU legislation and Court judgments shall be accompanied by due attention to domestic and international developments, as well as contextual factors influencing the real world of migratory movements. Whereas newcomers to European migration law will consult the book as a gate of entry into a dynamic and fascinating area of the law, experts will hopefully benefit from extra information and new perspectives. Political contestation and normative salience mean that there is no neutral standpoint from which we may describe migration law. Critical observers highlight that the very idea of nationality embodies a neo-feudal privilege of people born in the Global North, as does the distinction between ‘Union citizens’ and ‘third country nationals’. That is why comments made throughout this book make an effort to present the theoretical positions and conceptual choices that lie beneath the policy design. To do so allows the reader to reflect critically on the legal material which forms the basis of our analysis. The contents of positive law serves as the starting point of this venture. Chapter titles have been kept deliberately short and descriptive in an attempt to facilitate the identification of where information on specific themes can be found. At the same time, European migration law is more than the sum of legislation, court judgments, and practical measures on specific subject matters. There are overarching themes that a purely sectoral approach fails to recognise. Judges at the Court of Justice of the European Union (CJEU), for instance, will address legislation on a specific subject

European Migration Law. Daniel Thym, Oxford University Press. © Daniel Thym 2023. DOI: 10.1093/oso/9780192894274.003.0001

2 Introduction matter as an integral part of the supranational legal order; judgments on asylum procedure benefit from a horizontal comparison with what the Court says on the return or visa procedure. Political negotiations in Brussels are informed by entrenched patterns of behaviour, of which readers without a background in EU studies will often be unaware. Conversely, those who are familiar with the European project may wish to grasp the specificities of international human rights and refugee law. Interdisciplinary perspectives are a novelty for many legal experts; they reveal the dynamics behind the design and application of the legal material. Our holistic presentation will bring these different points of view together, both in the horizontal chapters in the first part and in the sectoral comments which can be found in the second part. We submit that such a holistic outlook adds value in terms of using scarce resources effectively. The constant flood of new legislation, court judgments, reform proposals, and changing contextual factors may lead to observers missing the proverbial forest for the trees. Anyone working on EU migration law knows the risk of ‘data overload’ when you have to digest highly complex information from multiple sources. The author readily admits that his mind was spinning repeatedly when dealing with what seemed like another impossible question that he struggled to grasp. Stepping back and trying to see the bigger picture helps in such scenarios. Technical problems of great practical or political importance will be better understood when the reader is aware of the framework in which they are embedded. The response to data overload should be the search for replicable patterns and horizontal cross-fertilization. Doing so may ideally allow us to see a mosaic instead of a convoluted patchwork of unrelated events. I have written this book with several audiences in view: policy experts, legal practitioners, and academic researchers. Policy experts working in ministries, parliaments, non- governmental organisations (NGOs), or think tanks discuss how to design new measures or to reform existing legislation. They will appreciate our comments on the policy concept, the constitutional foundations, the administrative practices, and the drivers of migratory movements. Having said this, new policies are rarely designed from scratch. More than three decades of European migration law have left us with a copious reservoir of rules and instruments. A good knowledge of the law is a precondition for success in the policy debate. That is particularly true at the EU level, where new initiatives often build upon previous choices in a path-dependent manner. Legal practitioners usually have a good knowledge of the law. They will consult this book to identify additional information, such as Court judgments they might be unaware of. This will happen frequently, considering that the CJEU has delivered more than 250 judgments on the directives and regulations discussed in this volume. They will be mentioned in the relevant passages, together with the case law of the European Court of Human Rights (ECtHR) and the position of the academic literature or international actors, such as UNHCR. Moreover, practitioners have to deal with legal questions, irrespective of whether courts have answered them already. Awareness of the doctrinal foundations of the case law and horizontal parallels between several pieces of legislation helps to identify solutions to new problems. This book presents practitioners with the nuances of the legislation and the arguments they may use. Academic researchers will have different outlooks depending on their area of expertise and level of seniority. Young researchers writing their PhD theses may struggle to get an overview and to identify a theme where they can add value. Being aware of the state of

Broad Understanding of ‘European Migration Law’ 3 the art is a precondition for a successful PhD project, which may seek to merge interdisciplinary viewpoints with classic arguments of legal interpretation. We are confident that young researchers will welcome this book as a gateway into a galaxy full of research puzzles and unresolved legal problems. Along similar lines, senior academics will benefit from our comments whenever they deal with new topics or are looking for additional information on specific legal areas.

Broad Understanding of ‘European Migration Law’ Neither the choice of terminology nor the thematic scope of ‘European migration law’ are self-explanatory. In essence, this book concentrates on the legal status of third country nationals entering or staying in the Member States of the European Union. EU legislation will be the starting point of our analysis, which, at the same time, will consider international developments, policy debates, and national laws. Our choice of title signals this broader outlook, which transcends the ‘nitty gritty’ of EU legislation and CJEU judgments. At the same time, the terminology reflects the interconnectivity of the subject matters discussed in this volume. The traditional dichotomy between ‘asylum’ and ‘immigration’ increasingly gives way to an awareness of overlap. This contribution employs the term ‘migration/migrant’ as an overarching category for the legal rules and everyday practices on both voluntary and forced migration. Such broad usage of the term does not negate the well-established distinction between refugee law and asylum legislation, on the one hand, and the rules on legal migration and return, on the other hand. The chapters in the second part will address the specificities of the legal material. Having said this, interdisciplinary studies emphasise that the binary juxtaposition of ‘voluntary’ and ‘forced’ fails to address the complexity of migratory movements. Interlinkages also define the lived experience of migrants: rules on visas, border controls, asylum, legal migration, integration, and return will often be inter-related in practice. Think of a beneficiary of international protection receiving long-term resident status, or of return decisions being issued once an asylum applicant has exhausted legal remedies. Visa requirements and cooperation with third states render it difficult to reach Union territory in the first place where an asylum application may be lodged. Policy papers, legal practice, and scholarly analyses have increasingly recognised this interconnectivity and employ the term ‘migration’ in an overarching manner, mirroring the title of this book. A broad terminology of ‘migration law and policy’ appears to be in the making, in Europe more than in North America. Nevertheless, the practice is far from uniform and the future is difficult to predict. As a matter of principle, the language of ‘immigration and asylum law’ and ‘migration law’ can be used interchangeably; both expressions are equally valid. For our purposes, however, the added value of a holistic understanding of ‘migration law’ stands out. It draws the attention of the reader to feedback loops between the different instruments and policies discussed throughout this book. Interdependencies concern the policy design and questions of legal interpretation. By way of example, procedural fundamental rights in the Charter apply to all instruments discussed in this volume, as do the best interests of the child. In comparison to ‘immigration’, the neutral descriptor ‘migration’ has the advantage of embracing temporary movements semantically. Numerous third country nationals leave

4 Introduction the Member States after having worked or stayed there for some time, often entirely voluntarily. The habitual meaning of ‘migration’ covers both temporary sojourn and permanent settlement, as well as the perspective of third country nationals who are residing abroad. Prevalent externalisation practices frustrate the aspiration of many migrants to reach European soil. To use the neutral descriptor ‘migration’ is better placed to cover the external dimension as well. Speaking of ‘European migration law’ does not exhibit quasi-imperial claims towards European countries which are not members of the European Union. Rather, reference to ‘Europe’, instead of the ‘EU’, in the main title reflects a broad thematic outlook which transcends the output of the supranational institutions in Brussels. International law and policy developments will be discussed throughout this book, with human rights and refugee law as the most prominent examples. Association agreements with neighbouring states will be considered in the same way as cooperation with countries further afield. Both the EU institutions and the Member States are particularly active in the field of international cooperation. Our semantic emphasis on ‘Europe’ in the main title indicates that this book is about much more than the idiosyncrasies of the supranational legislation and Court judgments. They will, of course, receive much attention, albeit as an integral part of the broader European response to cross-border movements. The European Union is a multi-level system. National governments play an active part in decision-making, and domestic authorities and courts are indispensable for effective implementation. Focusing on the supranational level runs the risk of missing half of the story. Our comments will highlight how legal rules and everyday practices at multiple levels inform the composite structure of European migration law. Member State action is particularly relevant in areas where the EU has no competences or prefers not to exercise them. Nationality law, legal pathways for refugees and economic purposes, regularisation of illegal stay, and operational cooperation with third states are prime examples of where little or no supranational activities exist. A holistic examination would be incomplete without due attention to the national contribution. Emphasising the significance of the national level has implications beyond questions of policy design and administrative implementation. Legal cultures differ across Europe. The Anglo-Saxon common law with its focus on courts and judges interacts with the continental civil law tradition of doctrinal hermeneutics. Positivist conceptions of legal interpretation coexist with normative and interdisciplinary approaches, both within and across national legal systems. For many practitioners, contributions written in English will not be the main or preferred source of information. The author is regularly confronted with these different methodological perspectives on the law and the potential of tensions between them. This book has been written with the intention of taking everybody on board. Legal hermeneutics have been combined with interdisciplinary comments to achieve this goal. We hope that every reader will find what they expect and will perceive alternative viewpoints as an invitation to question their own working method.

Outline of Part I on Overarching Themes Chapter 1 will explain that the EU started dealing with migration law in earnest thirty years ago. The abolition of border controls in the Schengen area was considered to require flanking

Outline of Part I on Overarching Themes 5 measures on visas and databases, amongst others. At the same time, states promoted intergovernmental cooperation in response to an increase in the number of asylum applications. National governments defined core features of the European rulebook on ‘third country nationals’, whose contents differs markedly from the freedom-enhancing rationale of the single market and ‘Union citizenship’. Successive Treaty amendments buttressed the relative autonomy of migration law within the area of freedom, security, and justice. EU institutions must decide on the degree of openness or closure within the confines of human rights, thus presenting the contemporary variant on how European states have dealt with migration ever since the nineteenth century. Inspection of the pre-history of European migration law exposes a fascinating combination of continuity and transformative disruption, which continues to define policy developments to this date. Institutional provisions have a direct impact on the policy outcome by determining the weight of the relevant actors. Chapter 2 will introduce readers to the prerogatives of the supranational institutions and their track record on migration. The informal trilogue format and the rise of soft law in the internal and external dimension demonstrate that everyday practices can be as relevant as legal rules in the Treaties. While the European Parliament often serves as a counterbalance to the preferences of national interior ministries, assembled in the Council, the Commission habitually responds to changing political priorities with technocratic pragmatism. Legislation on migration is full of compromise packages, and the salience of migratory matters in the public discourse complicates the ongoing search for a common ground. EU migration law is the product of state interests as much as it is a reflection of normative preferences. Chapter 3 will turn the spotlight on the CJEU in Luxembourg. Its judgments are a central object of analysis for anyone dealing with European migration law. Our comments will point out that the judgments do not come out of thin air. Inspection of procedural rules unveils the black box of judicial decision-making; rules of procedure prioritise the views of some actors over the conflicting views of others. Deference to the position of the legislature is one explanation why the judicial output fluctuates between dynamic constitutional rulings and an administrative mindset of doctrinal hermeneutics. A statistical survey of the case law unearths significant thematic asymmetries. Judgments on migration law reaffirm the centrality of preliminary references, notwithstanding divergences in the number of references between the Member States and according to subject matter. In subject areas where judges deliver few rulings, alternative accountability mechanisms are particularly important. Ombudspersons, financial and managerial control, and public attention can play a critical role in such situations. Migration law affects the lives of millions, raises formidable normative challenges, and does not always work well in practice. The rich interdisciplinary literature, presented in Chapter 4, sheds light on the underlying dynamics. Knowledge of the multiple economic, social, political, and cultural drivers of migration is essential for the design of reasonably well functioning policies, especially in the areas of asylum and return. Whereas legal experts concentrate on the interpretation of the law, other disciplines explore the making and the effects of migration policies. Sceptical public opinions support restrictions in times of increasing politicisation, and critical studies emphasise that perceptions of threat and normative preferences can be influenced by the use of language. Sociolegal research in the ethnographic tradition shows the impact of migrant agency and street-level bureaucracy. Policy experts can use these interdisciplinary insights to improve the policy output, whereas

6 Introduction legal scholars can develop sophisticated research designs; doing so combines doctrinal hermeneutics with a critical awareness of the law as an instrument of government. Contemporary forms of state control over the entry and stay of foreigners emerged during the nineteenth century, as a by-product of the formation of sovereign statehood. Despite being a cross-border phenomenon, migratory movements are not governed by public international law to a significant extent, with the Refugee Convention and human rights as the exceptions to the rule. The inherent tension between state sovereignty and human rights in the evolution of European migration law will take centre stage in Chapter 5. Our remarks will focus on the contribution of the European Convention on Human Rights (ECHR), the Charter of Fundamental Rights, the Refugee Convention, and international treaty bodies or diplomatic fora, including the Global Compacts. These general explanations will prepare the ground for sector-specific comments on human rights, refugee law, and international treaties in the substantive chapters. Chapter 6 will concentrate on the doctrinal foundations of the case law, which are essential for anyone trying to understand—or influence—the outcome of the interpretative exercise. Inspection of the supranational judicial practice unearths the predominance of seemingly technical arguments of doctrinal hermeneutics in the continental tradition, focusing on the wording, the general scheme, objectives, and the drafting history. To do so is easier said than done. While many judgments explore overarching features and cross- linkages between the different pieces of legislation, other rulings exhibit an almost bewildering lack of coherence, for instance with respect to teleological interpretation in light of objectives. Individual rights of migrants often have similar effects as human rights, under the conditions laid down in secondary legislation. Practitioners will appreciate that familiarity with doctrinal arguments increases legal certainty, supports interpretative coherence, and forms the basis for forward-looking proposals. Experts in EU law rightly pay much attention to the output of the supranational institutions. At the same time, the national level is equally important in terms of defining the conditions for the effective and uniform application of EU legislation. European migration law is a multi-level system, with national practices varying to a considerable extent. The vision of an ‘area’ of freedom, security, and justice and a common asylum ‘system’ should not be mistaken as shorthand for quasi-federal uniformity. Particularly important are differences in the administrative and court procedure. Chapter 7 will present the CJEU case law on unwritten general principles and fundamental rights in the Charter that limit the procedural autonomy of the Member States. Our horizontal assessment of judgments on different segments of migration law illustrates how rulings on asylum can be used in the context of return or legal migration, and vice versa. Chapter 8 will explore the fortification of Frontex and the Asylum Agency. Both agencies have received stronger mandates and have started hiring an abundance of new staff. While the Asylum Agency concentrates on information gathering and the quality and coherence of asylum procedures and reception conditions, Frontex increasingly assumes operational functions. Supranational staff and seconded national personnel assist Member States under pressure. In addition, cooperation with third states appears to become a focal point of future activities. ‘Pushback’ allegations and controversies about agency involvement in ‘hotspots’ underline that enhanced powers must go hand in hand with stronger accountability, both with regard to internal governance and external oversight. Challenging the behaviour of the agencies before the Court in Luxembourg is complicated due to the rules on standing, case

Outline of Part II on Sectoral Legislation 7 law on composite procedures, and the primary responsibility of host states of Frontex and EUAA missions under the mandate. Databases are less visible than the agencies, but they are equally important in practice. Recent years have witnessed a constant trend towards ‘function creep’, with the creation of new databases, the collection of ever more information, and the extension of access rights. The new legislative and technical infrastructure for the SIS, Eurodac, the Visa Information System, ETIAS, and the Entry/Exit System was scheduled to be put into effect at the time of writing. Doing so will mark a turning point for a highly vibrant area. The prospect of interoperability and the advent of automated processing will increase the practical, political, and conceptual significance of the databases. Data protection laws are the most important legal control standard, to be assessed by courts and other mechanisms of preventive or reactive supervision.

Outline of Part II on Sectoral Legislation As a reference work, this book will not usually be read from A to Z. Rather, readers will choose a specific theme from the table of contents. In order to facilitate orientation, the sectoral chapters will have the same structure: the policy concept and theoretical positions are presented first, followed by competences and human rights. The remainder of the analysis will be structured thematically: each section will consider a specific subject matter which can be identified easily from the heading. Often, one piece of legislation will be dealt with, for instance the Dublin III Regulation or the Seasonal Workers Directive. Our comments will contain cross-references to other chapters for overarching characteristics and whenever there are thematic interlinkages. Classic examples of such horizontal topics are supranational prescriptions for administrative procedures, the constitutive character of residence permits, or equal treatment provisions. The sheer complexity of European migration law entails that it is a matter of self-interest to identify general features which can then be studied jointly. Doing so saves time and resources and also allows for the identification of replicable patterns. Chapter 10 will highlight that the Court explores horizontal cross-fertilisation between the legislation on migration, as well as with the free movement of Union citizens. The public policy exception, fee levels, and the sufficient resources threshold are prime examples of the judicial search for coherence: judgments emphasising similarities interact with rulings accentuating differences, reflecting the specific contents and context of the different pieces of legislation. Of great practical significance are the principle of proportionality and the human right to equality before the law. Our analysis will adopt a bird’s eye view on the multi-faceted CJEU and ECtHR case law, stressing the persisting uncertainties. Judgments on Article 72 of the Treaty on the Functioning of the European Union (TFEU) and the principle of abuse demonstrate why states struggle to justify non-compliance with EU legislation in regular circumstances. Chapter 11 will examine instruments of pre-arrival control. Visa policy and carrier sanctions are essential elements of European migration law which sustain the profound stratification of contemporary entry policies: easy access for privileged travellers coexists with hurdles and restrictions for the ‘unwanted’. Visa requirements classify countries on the basis of an abstract risk profile. They are binding on all Member States and many neighbours

8 Introduction follow them as well; visa facilitation agreements serve as a bargaining chip to convince third states to cooperate. Procedural safeguards in the Visa Code Regulation apply to full members of the Schengen area only; they embody a high level of harmonisation in relation to documentation, admission criteria, and administrative procedure. Critical observers highlight the significance of carrier sanctions as a measure of privatised migration control, which is subject to limited legal oversight and hinders access to Union territory by persons coming from the Global South. Border controls have received much attention as a result of the controversies about ‘pushback’ allegations. Unfortunately, it can be difficult to identify the outer limits of the legal framework under human rights law and the provisions on border surveillance in the Schengen Borders Code Regulation and the Sea Borders Regulation. Chapter 12 will familiarise readers with these highly significant legal questions. By contrast, the rules on checks on persons at official border crossing points are comparatively straightforward, including for refusal of entry. The proliferation of prolonged ‘temporary’ internal border controls within the Schengen area is illustrative of profound governance deficits, which EU institutions struggle to overcome. Secondary movements of asylum applicants are a bone of contention, partly because of the complexity of the legal regime. Chapter 13 will focus on EU asylum legislation, which is the object of protracted policy debates and defines the work of many practitioners. Reiterating the idea behind a reference book, we will describe the political and theoretical framework, introduce newcomers to core features of the supranational legislation, and provide a reliable inventory of more than 100 Court judgments. Structural deficits of the Common European Asylum System will be discussed along with reform proposals and emerging themes, such as climate change. The evolution of European asylum law can be described as a history of half-hearted commitment. Our thematic comments will follow the structure of the legislation. Each section will discuss one instrument: asylum jurisdiction; asylum procedures; criteria for refugee status and subsidiary protection; temporary protection; reception conditions; the legal status of beneficiaries of international protection; resettlement and other legal pathways. We are confident that we managed to present both the broader legal and conceptual repercussions and the small print, which informs the legal practice. Legal migration receives less attention, although it concerns several million third country nationals. Chapter 14 will assess the contents and the effects of domestic and supranational rules for family members and labour migration. The need for common action on these matters was never straightforward, in the absence of enhanced transnational effects. Debates about economic migration were particularly divisive, before the EU settled on a sectoral approach. Inspection of the Blue Card Directive and the legislation on students and researchers, intra-corporate transferees, and seasonal workers will explain why these rules have a limited impact. States remain a laboratory for the design of innovative entry channels, both for the highly skilled and for migrants with fewer qualifications. While the ‘academic route’ supports the longer stay of students, other instruments are designed as temporary admission schemes. With regard to family reunification, optional derogations and exceptions have been criticised, but the Family Reunification Directive contains protective elements as well. Its standards go beyond the level of protection under human rights law. Chapter 15 will investigate integration policies. First admission sets in motion a process of status change, which culminates in the acquisition of long-term resident status or nationality. Many third country nationals benefit from residence security and equal

Outline of Part II on Sectoral Legislation 9 treatment, thus turning them into members of the societies they live in. A comprehensive analysis of integration policies must go beyond the explicit and implicit integration conditions enshrined in the instruments of migration law. Other state policies and contextual factors are equally important: think of the welfare state or schooling. In this overall context, the contribution of migration law is limited. Mandatory integration conditions have received much attention, especially language skills as a precondition for family reunification. Judges accepted their legality, subject to a hardship clause. Furthermore, many migration law instruments provide for equal treatment. We will demonstrate the legal characteristics and the practical implications of these provisions, with a special emphasis on the welfare state. The very idea of equal treatment with nationals and the limited inroads of EU law on the acquisition of nationality reaffirm our general conclusion that European migration law cannot be adequately understood without considering the national level. Return is the flipside of integration. EU Treaties call for ‘enhanced measures to combat illegal immigration’, and the institutions have taken that invitation seriously. Chapter 16 will describe the patchwork of domestic and supranational measures and how they interact, starting with a critical reflection on the use of the language. The EU approach to the criminalisation of irregular entry and stay is multi-faceted: instruments instructing Member States to adopt sanctions coexists with case law limiting the use of custodial sentences and legislation on victims of human trafficking. The Return Directive serves as the backbone of the supranational legal framework, establishing common standards for the return procedure, voluntary departure, and forced removal. Its provisions apply whenever third country nationals are ‘illegally staying’. EU legislation does not generally harmonise the conditions for unlawful stay and regularisation, which remain the domain of national laws and practices. Supranational legislation governs the administrative detention of returnees and asylum seekers, thus complementing human rights law. Chapter 17 will consider the position of neighbouring countries which prefer not to join the European Union or are waiting to be admitted. Association agreements and international treaties establish concentric circles with different degrees of participation. While Norway, Iceland, and Switzerland subscribe to the free movement of persons and are associated with the Dublin and Schengen rulebook, the UK stays outside. There is currently no enhanced cooperation with the UK on free movement or migration control, apart from the protection of acquired rights under the Withdrawal Agreement and transnational social security coordination. The status of Turkish nationals residing in the Member States has given rise to many Court judgments, which increased the level of protection significantly. Association agreements with other neighbours to the South and East contain few provisions on legal migration nowadays. The management paradigm of justice and home affairs has replaced the single market model as the focus of attention. International cooperation with third states is a controversial topic on which the EU institutions and national governments have spent considerable political capital. Chapter 18 will complete our survey with a portrayal of the external dimension. Its evolution can be described as a history of trial and error. While legal pathways and development feature prominently in policy documents, the output remains meagre. Mobility partnerships have not delivered, and it remains to be seen whether talent partnerships will prove more successful. Instead, the externalisation of migration control by means of international cooperation has become the hallmark of external action. Capacity building and operational

10 Introduction cooperation serve as sweeteners to convince third states to cooperate, combined with the—not so subtle—threat of sanctions in the domain of visas and beyond. Frontex positions itself to become an important player, in addition to national initiatives. EU legislation and Court judgments play a limited role, but this does not undo the practical and political significance of the external dimension for a holistic understanding of European migration law.

PART I

OV E R A RC HING T H E M E S

1

Building an Area of Freedom, Security, and Justice The European Union is a strange creature. It mirrors an international organisation in some respects and reproduces sovereign statehood in other regards. The perspective of migration law is a perfect illustration of this conceptual ambiguity. At the heart of the EU’s approach to cross-border movements of people lies what seems to be a paradox. For decades, European integration had been defined by the abolition of state borders. Swedes may move to the Netherlands and reside there indefinitely. However, internal mobility was not replicated externally. Treaty objectives call upon the institutions to ensure, amongst others, the ‘efficient monitoring of the crossing of external borders’.1 A Moroccan IT specialist cannot simply relocate to Spain for work; she will usually have to apply for a residence permit before entry, which can be refused for various reasons. To understand the supranational policy design on migration requires at least a basic awareness of the idiosyncrasies of the existing rulebook, as developed over time. To this date, the path- dependency of earlier developments informs debates about both the basic contours of European migration policy and seemingly technical legal questions that define the everyday work of most experts. Invocation of the ‘Schengen Agreement’ and the ‘Dublin Convention’ permeate the media discourse. Meanwhile, experts who are not familiar with EU law may be confused by the fundamental distinction between the free movement of ‘Union citizens’ and migration law towards ‘third country nationals’, or complaints about pervasive ‘intergovernmentalism’. The objective of this chapter is to familiarise readers with these idiosyncrasies in light of the historic evolution. Our analysis will combine the peculiarities of supranational migration law with a rough sketch of the evolution of migration law on the European continent. Awareness of the historic background similarly allows for the identification of overarching trends behind contemporary events and challenges. The sheer complexity of the legal material, the constant flood of new legislation and judgments, and changing contextual factors create the danger of observers not seeing the proverbial forest behind the trees. Our inspection of the history of migration law in Europe will concentrate on long- term transformation—in line with the historical concept of the ‘longue durée’,2 which accentuates slowly changing structures that the widespread focus on contemporary occurrences tends to lose sight of. Our exploration will unfold in three steps. It begins with the emergence of EU policies, which can be traced back to earlier inter-state cooperation on economic matters and refugee protection. These initiatives prepared the ground for the free movement of workers within

1 2

TFEU, art 77(1). See Fernand Braudel, ‘La longue durée’ (1958) 13 Annales: Économies, Sociétés, Civilisations 725.

European Migration Law. Daniel Thym, Oxford University Press. © Daniel Thym 2023. DOI: 10.1093/oso/9780192894274.003.0002

14 Building an Area of Freedom, Security and Justice the European Communities (1.1). Spillover effects on border controls, visas, and asylum resulted in the gradual emancipation of the rules on migration from third states, as opposed to mobility within the single market. The distinct features of today’s Treaty regime developed in a period of twenty-five years, spanning from the original Schengen agreements to the Treaty of Lisbon. The latter completed the ‘supranationalisation’ of the institutional framework and established a broad set of competences for the realisation of an area of freedom, security, and justice (1.2). An inspection of the Treaty rules for third country nationals will illustrate in how far the constitutional foundations differ from Union citizenship. EU Treaties leave the institutions much leeway to define the contents of secondary legislation within the confines of human rights (1.3).

1.1 From International to EU Migration Law European integration is commonly presented as an innovation that broke with previous attempts at promoting peace and prosperity on the continent. Once you pierce the veil of the self-description of a new beginning, the historic material on how states dealt with foreigners exposes a fascinating combination of underlying continuity and transformative disruption. An earlier phase of comparatively liberal migration regimes throughout the nineteenth century (1.1.1) coincided with the gradual emergence of the sovereignty-based migration law which persists until today (1.1.2). Important strands of EU legislation build upon earlier developments, especially with respect to the protection of refugees (1.1.3) and established patterns of labour migration on the European continent (1.1.4). The latter informed the choice for free movement within the European Communities (1.1.5), in contrast to the predominantly strict approach towards the former colonies (1.1.6). EU Treaties distinguish between ‘third country nationals’ and ‘citizens’, notwithstanding conceptual ambiguities about the rationale behind Union citizenship (1.1.7).

1.1.1 Parallelism of emigration, imperialism, and tourism To date, international law on cross-border movements is defined by a built-in discrepancy. A complex body of rules promoted the free exchange of goods after the Second World War, within the World Trade Organization and through free trade agreements. By contrast, Chapter 5 will demonstrate that the entry and stay of foreigners remains, by and large, the sovereign domain of states. With the exception of the Refugee Convention and human rights law, few agreements have tangible effects on migration. The Global Compact for Safe, Orderly and Regular Migration, adopted in 2018, did not fundamentally reverse this overall picture.3 Chapter 19 on the external dimension will illustrate the prevalence of informal cooperation frameworks underlying the dynamic evolution of relations with states beyond the European continent. Absence of far-fetched international rules need not be equated with restrictive policy outcomes. The second half of the nineteenth century is often remembered as a period of mass

3

See ch 5.5.4.

From International to EU Migration Law 15 migration, not least from a European perspective. Millions left their homes to start a new life in the ‘new world’, especially the United States and Latin America.4 Films and novels enshrined this period in the collective memory. ‘Little Italy’ in Manhattan and Scandinavian city names in the wider Great Lakes Region are testimony to a period of mass migration across the Atlantic. Intense movements also took place on the European continent, which technically mostly qualified as intra-state migration, even though the social and cultural change involved in the relocation from rural areas to urban centres was often dramatic in a period in which contemporary nation states were still in the making.5 By way of example, think of movements from Galicia to the industrial centres of Bohemia, Budapest, or Vienna within the Habsburg empire. Historical studies have put into perspective the occasionally one-sided memory of seemingly ‘free’ migration to the Americas. The US authorities rejected Europeans who suffered from bad health, were considered morally deviant, and, later on, could not read. They also regulated steam boat travel and introduced a historic precedent for contemporary carrier sanctions: shipping companies had to transport back home anyone refused entry.6 Most importantly, however, entry rules were asymmetric. The Chinese Exclusion Act, adopted by the US Congress in 1883, was the epitome of policy developments which effectively closed the borders to migrants from East Asia. This prepared the ground for overtly racist admission on the basis of country quotas, which willingly favoured Europeans (and among Europeans those from the Protestant North over people from the Catholic South and the poorer East). Other countries, such as Canada, Australia, and Brazil similarly pursued openly racist selection criteria.7 Drastic asymmetries also characterised the policies of European states. The nineteenth century saw both mass emigration to the Americas and intensified colonialism and imperial conquest. Colonial administrations supported semi-voluntary colonial migration patterns, for instance when Indians built railways or engaged in trade in Africa; forced labour was a frequent practice, including across longer distances.8 Doing so built upon centuries of experience with the slave trade, notably across the Atlantic, which defines the prehistory of European migration law in the same way as mass emigration to the United States.9 We may even draw an indirect line from colonial migration to the formation of the single market. Although the single market is occasionally presented as a model for global mobility, we shall see that its formation was consciously limited to nationals of the Member States, thus excluding those living in the (former) colonies. From a legal perspective, both policy restrictions and the facilitation of entry and stay were governed by domestic laws. In the long nineteenth century, few international initiatives dealt with migration law in today’s sense. Having said this, states actively cooperated in the domain of technical regulation. Some of the first international organisations pursued an administrative agenda on navigation, postal and telegraph services, or railway transportation.10 Such technical coordinated facilitated movements across borders. Faster and cheaper 4 See Vincent Chetail, International Migration Law (OUP 2019) 39–46. 5 See Jan Lucassen and Leo Lucassen, ‘The Mobility Transition Revisited, 1500–1900’ (2009) 4 J Global Hist 347. 6 See Aristide R Zolberg, A Nation by Design (Harvard UP 2006) chs 5–7. 7 See David Scott FitzGerald and David Cook-Martin, Culling the Masses (Harvard UP 2014) chs 3–4. 8 See Robert J Steinfeld, Coercion, Contract and Free Labor in the Nineteenth Century (CUP 2001). 9 See Seymour Drescher and Paul Finkelman, ‘Slavery’ in Bardo Fassbender and Anne Peters (eds), The Oxford Handbook of the History of International Law (OUP 2012) 890. 10 In conventional accounts of public international law, the Central Commission for Navigation on the Rhine became the first international organisation in 1831, to be followed, amongst others, by the International Telegraph

16 Building an Area of Freedom, Security and Justice transportation and communication provided the infrastructural bedrock for heightened mobility. Chapter 11.1 will remind us of the immense technical and regulatory efforts states invest in easing travel for bona fide travellers; this bifurcation of movements is often overlooked in studies of migration law. With regard to tourism, the English were among the first to spearhead tailor-made tours of the remnants of antiquity in the Mediterranean by means of rail-bound transportation.

1.1.2 Migration law as a by-product of state formation A diachronic comparison between the ‘migration law’ of today and previous legal regimes is complicated by the absence of a direct comparator. Most European countries developed the idea of nationality only gradually, thereby supplanting earlier forms of feudal limitations and local membership. Contemporary notions of nationality, entry control, and residence status are intricately linked to the formation of the sovereign nation state, which monopolised and harmonised membership and mobility regimes within and across state borders step by step.11 To describe statehood as the congruence of territory, population, and government became standard practice at the time, thus conceptualising cross-border movements as pertaining to core matters of sovereignty. States remained free to regulate the entry and stay of foreigners. In the nineteenth century, economic upheaval and the profound social, political, technical, and cultural renewal that characterised the ‘great transformation’12 created the migration law we know today. During that period, previous rules on sectoral limitations and local membership gradually lost relevance. The English ‘poor laws’ were emblematic of how public authorities had regulated migration before the introduction of contemporary notions of nationality and residence status. This was done on the basis of communal affiliation, which proved incapable of adequately responding to domestic population movements during the industrial revolution.13 On the continent, nationality laws in the French Code napoléon served as a model for state membership.14 They were imitated by countries across the continent.15 A sovereignty-based concept of nationality came into being; doing so necessitated the emergence of a ‘modern’ migration law regulating the entry and stay of foreigners. One important factor behind state legislation was an increase in the movements of Jews and other residents of the Habsburg Empire and Tsarist Russia to Western Europe.16 All in all, these

Union in 1865, the Universal Postal Union in 1874, and the less formal (continental European) Office central des transports internationaux par chemins de fer in 1893. 11 See the classic account by Stein Rokkan, State Formation, Nation-Building, and Mass Politics in Europe (OUP 1999)ch 2. 12 Karl Polanyi, The Great Transformation (1944) (2nd edn, Beacon Press 2001). 13 See David Feldman, ‘Was the Nineteenth Century a Golden Age for Immigrants?’ in Andreas Fahrmeir and others (eds), Migration Control in the North Atlantic World (Berghahn 2003) 167; and, for Germany, Ferdinand Weber, Staatsangehörigkeit und Status (Mohr Siebeck 2018)ch 1. 14 See Patrick Weil, How to be French (Duke UP 2008)ch 2. 15 Historic accounts have moved beyond the binary distinction between territorial ius soli and ethno-cultural ius sanguinis, instead emphasising how different conceptions overlapped and interacted across Europe; see Andreas Fahrmeir, Citizenship (Yale UP 2007)chs 1–4. 16 The Aliens Act 1905 served as a watershed in the UK, while, in Germany, labour mobility from today’s Poland resulted in fierce debates; in Southern Europe, other factors were more important.

From International to EU Migration Law 17 diverse developments fostered a continuous appearance of today’s migration law, which has been succinctly described as the ‘invention of the passport’17. That process turned full circle when most European countries introduced stringent border controls and visa requirements on the eve of the First World War. To be sure, control measures had existed previously, but it was not until the early twentieth century that a seemingly archetypical picture became a widespread phenomenon: border fences and border guards checking identity papers of people crossing the border. Earlier control systems had taken place on the territory and gave a greater emphasis on expulsion.18 Frontex and the Schengen Borders Code Regulation are the contemporary continuation of this historic realignment of control mechanisms. Somewhat paradoxically, the fortification of state borders was accompanied by enhanced international coordination, which laid the ground for the European migration law of today.

1.1.3 Towards international protection for refugees Inter-state cooperation started in earnest during the inter-war period within the broader framework of the League of Nations. While the League ultimately failed to secure peace, it spearheaded cooperation in various domains. Refugee protection was among them. Functional predecessors of asylum and refuge had existed since antiquity, but the contemporary refugee regime evolved in response to mass displacement before and after the first world. The first High Commissioner for Refugees, Fridtjof Nansen, established an identity document to facilitate cross-border movements for Russian exiles at a time of severe travel restrictions. Other initiatives were put forward, yet most of them were ad hoc measures which could not prevent moral failure when Jews and others fled Nazi Germany.19 When the Refugee Convention established a stable framework for displacement in 1951, it built upon these earlier initiatives. Interdisciplinary studies show that the principled distinction between ‘forced’ displacement and ‘voluntary’ migration was not self-evident. Sociological findings demonstrate that movements can rarely be classified as being predominantly voluntary or forced, as a result of the relative character and contextual fluidity of pertinent push and pull factors.20 Moreover, we should be cautious not to read history backwards. Debates in the 1920s and 1930 viewed refugees both as victims in need of protection and as economic actors building a new life. There were ample activities on refugees within the International Labour Organization (ILO),21 and even the Refugee Convention was concerned primarily with the social and economic integration of the ‘last million’ of displaced people who could not return home after the end of the Second World War.22 It was not a foregone conclusion that

17 John Torpey, The Invention of the Passport (2nd edn, CUP 2018)ch 4. 18 See Thomas Nail, Theory of the Border (OUP 2016) chs 2–6; and Andreas Fahrmeir, ‘Staatliche Abgrenzungen durch Passwesen und Visumzwang’ in Jochen Oltmer (ed), Handbuch Staat und Migration in Deutschland seit dem 17. Jahrhundert (De Gruyter 2015) 221. 19 See James C Hathaway, ‘The Evolution of International Refugee Law: 1920–1950’ (1984) 33 ICLQ 348; and Nevzat Soguk, States and Stranger (Minnesota UP 1999) chs 3–4. 20 See ch 4.1. 21 See Katy Long, ‘When Refugees Stopped Being Migrants’ (2013) 1 Migration St 4. 22 See Refugee Convention, arts 12–30, 34.

18 Building an Area of Freedom, Security and Justice the distinction between ‘migrants’ and ‘refugees’ would turn into the conceptual backbone of international and European migration law. Critical scholars have highlighted that the refugee regime replicates the concept of sovereign statehood, by means of correcting the failure of home states to protect their citizens. Refugee law is, in other words, firmly embedded in the Westphalian state system and the concept of state sovereignty.23 In the specific context of the inter-war period, it was much more than a simple humanitarian exercise. The newly created states in Central and Eastern Europe drew borders in areas where diverse ethno-cultural groupings had been living for centuries, thereby creating important minority populations (or dreadful practices of forced displacement and population exchange24). Pioneering ‘minority treaties’ were supposed to protect minorities in these states but turned out to be ineffective. The experience with the flagrant failure of the inter-state protection regime explains the initial scepticism with which Hannah Arendt approached the move towards international human rights.25 Things changed thereafter. Chapter 5 will explain that human rights law and the Refugee Convention have turned into essential pillars of migration law.

1.1.4 Prehistory of EU rules on labour migration The prevalent self-description of the European project as a ‘new legal order’26, distinct from classic international law, was motivated, in part at least, by the desire to overcome the weaknesses of the international regime of the inter-war period. This should not prevent us, however, from recognising the political and, to a certain extent, legal continuity of the approach to labour migration on the European continent from the early twentieth century until the creation of today’s single market. Italy was the most significant country of emigration, with millions leaving for the US, South America, and other European states, in addition to sizeable domestic movements from the Mezzogiorno to the industrial North. Within Europe, Italians went primarily to France, Switzerland, Luxembourg, and, later, Belgium and Germany; many returned to the Italian peninsula. Notwithstanding the image of ‘migration’ as a one-way street, labour migration, including later ‘guest worker’ programmes, was often a temporary project: many returned after having earned some money and acquired new skills. Return quotas differed between countries and over time, but it was always an important factor on the European continent and beyond. Italian labour migration is relevant for our topic, since the government actively promoted legal guarantees for Italians living abroad, in response to unsatisfactory practices of private companies which dominated the recruitment market at the time. Italy spearheaded the conclusion of a net of bilateral agreements, altogether negotiating more than one hundred treaties between the early twentieth century and the 1950s, starting with France. These bilateral treaties dealt with working conditions and safety at the workplace, financial remittances, accidence insurance, social security, and recruitment.27 Other countries concluded 23 See Nevzat (n 19) chs 1–2; and Emma Haddad, The Refugee in International Society (CUP 2008) ch 5. 24 They were widespread in south-eastern Europe, including the territories of today’s Greece and Turkey, in the context of the Balkan Wars of 1912/13 and the Treaties of Sèvres and Lausanne of 1920 and 1923. 25 See ch 5.2.2. 26 See Case 26/62 van Gend en Loos EU:C:1963:1. 27 See Christopher Rass, Institutionalisierunsprozesse auf einem internationalen Arbeitsmarkt (Schöningh 2010)ch 3.

From International to EU Migration Law 19 similar agreements. In the field of social security, bilateral treaties Germany negotiated with Poland and Czechoslovakia with respect to well-established regional migration patterns provided a template which continues to inform the contents of the Social Security Coordination Regulation (EC) No 883/2004.28 Migrant workers were an important field of activity for the ILO. The Geneva-based organisation promoted the rights of migrant workers, designed a model bilateral agreement in the late 1930s, and put forward a multilateral convention on the eve of the Second World War.29 Until today, the conventions and recommendations of the Geneva-based organisation are an important point of reference for the global debate about of migrant workers.30 Chapter 15.3.3 will explain why ILO Conventions do not, however, have much practical relevance for EU migration law, for the simple reason that secondary legislation habitually establishes a higher level of protection. ILO Conventions and bilateral treaties concentrated on the rights of workers and labour recruitment without embracing first admission. They complemented the entrenched body of international laws and customs on the treatment of aliens, which will be discussed in Chapter 5.1.1 on human rights. One step further, bilateral treaties on commerce, navigation, settlement, and friendship occasionally promised the admission of individuals for purposes of commerce and trade. Such abstract pledges seem not to have held much legal sway, however, at a time when entry and stay of foreigners was regarded as a matter of political preference and executive discretion.31 These bilateral treaties can be compared, at an abstract level, to the association agreements the EU has signed with neighbouring states; they will be presented in Chapter 17. Attempts to streamline international rules continued after the Second World War. Within Europe, the Organisation for European Economic Co-operation (OEEC), which later became the Organisation for Economic Co-operation and Development (OECD), and the Council of Europe were important players. Ideas developed in their framework provided the backdrop for discussions on the Treaties of Paris and Rome in 1951 and 1957 on what would gradually turn in the EU we know today; core actors in the supranational context often knew each other from debates in other international fora.32 With regard to third country nationals, the Council of Europe pursued some harmonisation in the form of the European Convention on Establishment of 1955 and other instruments, especially on medical and social services.33 However, these measures gathered few ratifications and were overtaken by EU enlargement. In contrast to human rights, the conventions apply reciprocally to nationals of state parties only, ie nationals of third countries cannot derive any rights from these multilateral instruments.

28 See Cindy Hahamovitch, ‘Creating Perfect Immigrants’ (2003) 44 Labor History 69. 29 See Migration for Employment Convention [No 66] (adopted 28 June 1939, never entered into force); the accompanying Recommendations Nos 61 and 66; and Chetail (n 4) 52–56. 30 See Ryszard Cholewinski, ‘International Labour Migration’ in Brian Opeskin and others (eds), Foundations of International Migration Law (CUP 2012) 283. 31 See Andreas Paulus, ‘Treaties of Friendship, Commerce and Navigation’ in The Max Planck Encyclopedia of Public International Law (OUP, March 2011) MN 9–13 http://www.mpepil.com (accessed 1 March 2023). 32 See Simone A Goedings, Labor Migration in an Integrating Europe (SDU Uitgevers 2005) 43–58, 74–84. 33 See ch 5.1.2.

20 Building an Area of Freedom, Security and Justice

1.1.5 Free movement within the single market Legal methodology was one of the reasons why EU integration in the single market overtook coordination in the framework of the Council of Europe. Reliance on international conventions with lengthy ratification procedures was supplanted by supranational law- making. The case law of the Court of Justice ensured coherent—and often dynamic— interpretation. The ‘new legal order’ had tangible advantages. However, none of this was known when the representatives of the six founding members came together to negotiate the Treaties establishing the European Coal and Steel Community (ECSC) of 1951 and the European Economic Community (ECC) of 1957. In particular, it was not self-evident that economic cooperation would embrace the free movement of workers, since trade agreements dealt mainly with goods at the time. Things turned out differently. Historic studies have shown that the determination of the Italian government explains why the final text recognised the ‘four freedoms’: the free movement of goods, services, capital, and persons.34 Once the principle of free movement of persons had been accepted, the negotiations turned to the conditions. It was governments further north which insisted on the equal treatment of workers to prevent downward pressure on domestic wage levels and working conditions as a result of migration. Agreement was facilitated by regional free movement among the Benelux countries and existing patterns of labour migration within Europe, which meant that the new obligations would not change much in practice.35 Moreover, important questions were relegated to implementing legislation.36 Throughout the 1960s and 1970s, the Council agreed on several regulations, including a wide definition of family member and the elimination of labour market tests, even though the wording of primary law did not prescribe this outcome.37 These rules were interpreted dynamically by the Court, thereby further advancing the status of migrant EU workers. Contemporary studies on Union citizenship habitually focus on Court of Justice of the European Union (CJEU), thereby sidelining the fact that the political institutions had prepared the ground for the case law by means of generous legislation.

1.1.6 Colonial migration: the downside of free movement States made a conscious choice to limit free movement to nationals. Doing so was in line with the international practice at a time when agreements were mostly reciprocal in nature, as shown in Chapter 5.1.1 on international law. True, the wording of the EU Treaties does not convey that limitation explicitly, since Article 45 TFEU refers to ‘workers’ in the abstract. 34 See today’s TFEU, art 26(2). 35 See Goedings (n 32) chs 1–2; and Simone Poli, ‘Migration in European Integration’ (2016) 22 J Eur Int Pol 279, 279–90. 36 There was a transitional period of 12 years, which was later shortened somewhat; see Treaty establishing the European Economic Community (adopted 25 March 1957, entered into force 1 January 1958) 298 UNTS 4300, arts 8, 38–41. 37 Goedings (n 32) chs 3–5 traces the negotiations on the initial Regulation No 15 (1961), the intermediate Regulation No 38/64/EEC, and the final Regulation (EEC) No 1612/68 on freedom of movement for workers [1968] OJ Spec Ed I-1968(II)/475; see also Síofra O’Leary and Sara Iglesias Sánchez, ‘Free Movement of Persons and Services’ in Paul Craig and Gráinne de Búrca (eds), The Evolution of EU Law (3rd edn, OUP 2021) 506, 512–16.

From International to EU Migration Law 21 However, criticism of ‘revisionist interpretation’38 by the EU institutions is not confirmed by archival research. During negotiations, there was agreement that only nationals should be covered. An explicit nationality clause was discarded in reaction to Franco-Italian disputes over the status of workers from Algeria and German concerns about compatriots from communist East Germany.39 Resolution of the dispute was entrusted to a working group on overseas countries and territories, which evaded a definite statement on Algerians by means of an open-ended formulation.40 A later proposal by the European Economic and Social Committee to include refugees and stateless persons via implementing legislation was not taken up by the Council for lack of competence.41 The single market was never supposed to promote universal free movement. The historic background to the Franco-Italian dispute was a short period of extensive emigration from the colonies to France, the UK, Belgium, and the Netherlands in the aftermath of the Second World War. These late colonial movements were not the result of a deliberate policy choice in favour of widespread immigration; instead, they came about as the by-product of attempts progressively to transform the colonial franchise on the basis of seemingly equal relations within the British Commonwealth, the Tripartite Kingdom of the Netherlands, and the Union française. These initiatives entailed comparatively liberal entry practices in the slipstream of the normative rebranding of colonial domination and exploitation.42 Few people would have predicted at the time that these initiatives would falter quickly. Relations with the African continent were a central question when the common market was set up in the 1950s and 1960s.43 Against the background of the early significance of colonialism, the free movement of persons in the single market can be presented in different lights. On the one hand, European integration was an attempt at overcoming the territorial nation state after two devastating world wars by means of extensive legal guarantees for cross-border movement, which were reconstructed, in the early 1990s, as a prototype of post-national citizenship and belonging.44 On the other hand, the exclusion of the (former) colonies reveals a darker side, which Etienne Balibar famously denounced as ‘European apartheid’.45 Restrictive tendencies have accompanied the integration process from the very beginning. Originally, however, migration was governed by domestic rules. The single market was not accompanied—unlike in the field of goods—by a common external migration policy mirroring the common commercial policy.46 For several decades, migration from third states remained a sovereign prerogative of the Member States. 38 Elspeth Guild and Steve Peers, ‘Out of the Ghetto?’ in Steve Peers and Nicola Rogers (eds), EU Immigration and Asylum Law (Martinus Nijhoff 2006) 81, 114. 39 The Italian government considered Algerians to be ‘competitors’ at a time when France had introduced restrictions for Italians to support entry from overseas. 40 See Goedings (n 32) 128–35. 41 See the intergovernmental Declaration 64/805/EEC of national representatives on refugees [1964] OJ 78/ 1225; in response to the opinion of the EESC [1962] OJ 62/64; neither document is available in English. 42 See Randall Hansen, ‘Globalization, Embedded Realism, and Immigrants to Europe’ (2000) 35 Comp Pol Stud 259; and Frederick Cooper, Citizenship between Empire and Nation (Princeton UP 2014). 43 See Peo Hansen and Stefan Jonsson, Eurafrica (Bloomsbury 2014). 44 See Yasemin Soysal, Limits of Citizenship (University of Chicago Press 1994) 145; and Dora Kostakopoulou, ‘European Union Citizenship: Writing the Future’ (2007) 13 ELJ 623, 628–33. 45 See Etienne Balibar, We, the People of Europe? (Princeton UP 2003); and generally Lucy Mayblin and Joe Turner, Migration Studies and Colonialism (Polity 2021). 46 In the terminology of international economic law, the free movement of persons established an (internal) free trade agreement, not an (external) customs union.

22 Building an Area of Freedom, Security and Justice Other bodies similarly did not pay much attention. Conventions in the context of the Council of Europe concerned reciprocal rights of nationals. In a remarkable episode of postcolonial legal history, the European Court of Human Rights rendered its first prominent judgment ever on migration in a case concerning nationals of the former colonies. Domestic rules erected strict hurdles for family reunification with spouses from abroad—a move judges found to comply with human rights, since the applicants could have ‘establish[ed] family life in their own or their husbands’ home countries’.47 The judgment introduced the well-known formula that states have ‘as a matter of well-established international law’ the right to control the entry of non-nationals as the starting point of the human rights inquiry. Later developments were more lenient, in particular with regard to protection against expulsion of former ‘guest workers’ and late colonial migrants.48

1.1.7 Theoretical ambiguity of Union citizenship The generic distinction between ‘Union citizens’ and ‘third country nationals’ has defined EU law and policy ever since 1992. The Treaty of Maastricht popularised the very notion of third country national when it introduced two separate legal regimes for the new category of ‘Union citizenship’49 and intergovernmental cooperation on ‘nationals of third countries’.50 The term ‘third country national’ supplanted this formulation in the years thereafter.51 It was used in the Tampere Conclusions of 1999 and by the Treaty of Lisbon, which established today’s primary law and fortified the ‘area of freedom, security, and justice’ as an overarching frame of reference. It will be used throughout this volume. Notwithstanding this straightforward legal distinction, the theoretical implications of both EU migration law and Union citizenship are contested. Among academic observers, the added value of the ‘citizenship’ label was and continues to be the subject of controversies. It had been chosen, at the time of the Maastricht Treaty, to signal a vague determination so to advance the integration process towards political union through electoral rights across borders and free movement of those who do not work.52 Yet, early commentators highlighted the ‘weakness’53 of the legal framework and castigated the new status as a misnomer bound to remain an ‘empty gesture’.54 The situation changed in the late 1990s when the Court started interpreting citizens’ rights dynamically,55 before embracing a more sceptical approach, as judges backtracked on earlier innovations and

47 Abdulaziz and others v United Kingdom App nos 9214/80, 9473/81 and 9474/81 (ECtHR, 28 May 1985) § 67; see also Marie-Bénédicte Dembour, When Humans Become Migrants (OUP 2015) ch 3; see also ch 15.7.2 in this volume. 48 See ch 15.2.2. 49 EC Treaty, art 8, as amended by the Treaty of Maastricht. 50 EU Treaty, art K.1, as amended by the Treaty of Maastricht. 51 See Kees Groenendijk, ‘Categorizing Human Beings in EU Migration Law’ in Saskia Bonjour and others (eds), The Others in Europe (Institut d’études européennes 2011) 21. 52 Today’s TFEU, arts 20(2)(a), (b), 21 were introduced by the Maastricht Treaty. 53 Síofra O’Leary, The Evolving Concept of Community Citizenship (Kluwer 1996) 304–307. 54 Joseph HH Weiler, ‘European Citizenship and Human Rights’ in Jan Winter and others (eds), Reforming the Treaty on European Union (TMC Asser 1996) 57, 68. 55 For an overview see Damian Chalmers, Gareth Davies, and Giorgio Monti, European Union Law: Text and Materials (3rd edn, CUP 2019) ch 11; and Dimitry Kochenov, ‘The Essence of EU Citizenship Emerging from the Last Ten Years of Academic Debate’ (2013) 62 ICLQ 97.

From International to EU Migration Law 23 limited the equal treatment of Union citizens who are not working.56 For our purposes, a rough sketch of the debate and the underlying motivation serves as an important point of reference for anyone trying to understand why legal rules on third country nationals differ from the category of Union citizenship. The introduction of Union citizenship built upon earlier conceptions of free movement within the single market as an ‘incipient form of European citizenship’.57 The ‘market citizen’58 was never supposed to be a factor of production only whose mobility sustained the common market. Social policy objectives had accompanied economic considerations from the beginning. Part-time workers, for instance, benefited from free movement even if they received social assistance.59 Furthermore, freedom to provide services was interpreted to embrace passive service reception, counter to the international practice.60 Free movement had always transcended a purely economic rationale; it served wider political purposes. Free movement was, in the words of the Schuman Declaration, ‘a first step in the federation of Europe’.61 That is not to say that there was a consensus on the end point. Behind abstract invocations of ‘citizenship’ and ‘political union’ lay diverse and potentially contradictory visions. The debate indicates, however, that many actors, especially within the EU institutions and among the elite, pursued the dream of further integration. This motivation gained momentum during the 1970s when heads of state or government promoted further integration through a focus on citizens’ rights. Calls for a ‘passport union’, known today as the Schengen area, and the free movement of everyone prepared the ground for the introduction of Union citizenship by the Maastricht Treaty.62 Union citizenship was a tangible expression of the well-known vocation of the EU Treaties ‘to lay the foundations of an ever closer union’.63 This teleological surplus of the Treaty regime holds two lessons for the analysis of migration law. First, the distinction between citizens’ rights and third country nationals is embedded in the design of the European project. We cannot expect the EU institutions to abandon it in the foreseeable future. Secondly, the experience of Union citizenship demonstrates that contextual factors influence legal developments. The Court’s famous dictum that Union citizenship ‘is destined to be a fundamental status’64 hints at the potential of dynamic interpretation, which judges have realised in numerous judgments. At the same time, the cautious approach of recent years reflects growing Euroscepticism and the limited practical impact of Union citizenship upon social practices and identificatory patterns.65

56 See Daniel Thym (ed), Questioning EU Citizenship (Bloomsbury/Hart Publishing 2017); and Agustín Menéndez and Espen DH Olsen, Challenging European Citizenship (Palgrave 2020) chs 4–5. 57 Commissioner Lionelli Levi-Sandri, ‘Free Movement of Workers in the European Community’ (1968) 11 Bulletin of the European Communities 5. 58 Hans-Peter Ipsen, Europäisches Gemeinschaftsrecht (Mohr Siebeck 1972) 250–54. 59 See Case 139/85 Kempf EU:C:1986:223. 60 See Andrew Evans, ‘European Citizenship’ (1982) 45 MLRev 497; and Case C-371/08 Ziebell EU:C:2011:809, paras 72–78. 61 ‘The Schuman Declaration’ (9 May 1950). 62 See Antje Wiener, Building Institutions (Westview 1998) chs 2–3; and Willem Maas, Creating European Citizens (Rowman & Littlefield 2007) chs 2–3. 63 Recital 1 of the Preamble of today’s TFEU, in line with the EEC Treaty 1957 (n 36). 64 Case C-184/99 Grzelczyk EU:C:2001:458, para 31; and Daniel Thym, ‘Frontiers of EU Citizenship’ in Dimitry Kochenov (ed), EU Citizenship and Federalism (CUP 2017) 705. 65 See Daniel Thym, ‘The Evolution of Citizens’ Rights in Light of the EU’s Constitutional Development’ in Thym, EU Citizenship (n 56) 111.

24 Building an Area of Freedom, Security and Justice For migration law, it remains to be seen whether the ‘area of freedom, security, and justice’ or fundamental rights can serve as a trajectory supporting dynamism.

1.2 Towards Distinct Policies for Third Country Nationals The EU is known for having secured peace and prosperity by integrating sovereign states into a supranational community. This did not imply, as we have seen, that the integration process aimed at universal free movement. There exists an ‘outside’ realm towards which the Union has to position itself. In doing so, political actors have always been torn between the post-national impulse to overcome borders and the competing vision of asserting common interests. Inspection of the development of EU migration law from the late 1970s onwards shows that such debates were a recurring feature and that policy priorities changed over time. Cooperation within the intergovernmental Schengen framework proved particularly productive (1.2.1), notwithstanding parallel coordination of justice and home affairs before and under the Treaty of Maastricht (1.2.2). The Treaty regime we know today emerged gradually, with the Treaties of Amsterdam and Lisbon as decisive occurrences (1.2.3 and 1.2.4). Political guidelines by the European Council were decisive for early developments, before they ran out of steam (1.2.5). Contemporary public debates see the juxtaposition of opposing narratives for migration policy (1.2.6).

1.2.1 ‘Schengen’: compensatory logic It was rather unlikely that an idyllic Luxembourgish town on the river Moselle would become a household name across Europe and beyond. And yet, that is precisely what happened to the municipality of Schengen for the sole reason of its geographic proximity to where the borders of France, Germany, and Luxembourg meet. At this location in 1985, representatives of the three above-mentioned states, together with Belgium and the Netherlands, signed an essentially political commitment gradually to abolish border checks.66 Participation of the Benelux countries was facilitated by the internal travel area they had established twenty-five years earlier. The first Convention of 1985 paved the way for the detailed prescriptions on the abolition of border controls and flanking measures in the Convention Implementing the Schengen Agreement of 1990.67 Border controls were discontinued within the ‘Schengen area’ on 26 March 1995, once the participating countries had concluded that the factual requirements for that step had been fulfilled. Other Member States followed the avant-garde before the Treaty of Amsterdam integrated the Schengen rulebook into the EU framework. The legal status of the Schengen acquis and its application to new Member States will feature in Chapter 12.3 on border controls.

66 The Agreement on the Gradual Abolition of Checks at their Common Borders (adopted and entered into force 14 June 1985) [2000] OJ L239/13 was an agreement of political intent to future action by means of a second treaty. 67 On the contents see David O’Keeffe, ‘The Schengen Convention’ (1991) 11 YB Eur L 185.

Towards Distinct Policies for Third Country Nationals 25 Like many other initiatives in the EU context, the motivation for change combined substantive policy considerations with the vague vision of ‘ever closer union’. Heads of state or government had discussed plans for a ‘People’s Europe’ and a ‘European Union’ in the 1970s, which included the project of a ‘passport union’ anticipating core tenets of the later Schengen cooperation.68 The move towards an internal market buttressed the desire for the abolition of border controls and customs checks.69 At a bilateral summit in May 1984, French President François Mitterrand and German Chancellor Helmut Kohl took up the idea and promised border-free travel.70 The Benelux countries joined the initiative, which was realised on the basis of public international law outside the EU framework. As often with projects of differentiated integration, relations between the core group and the non- participating countries were ambiguous. While Schengen is commonly remembered as a laboratory nowadays, the original debate embraced darker narratives. The exclusion of the founding member Italy was symbolically important; some governments were doubtful as to whether it would control its external borders effectively.71 Historical studies demonstrate two features of the early cooperation which inform our understanding of European migration law to date. First, support by national governments was critical for the Schengen project. Political scientists speak of ‘venue shopping’ when like-minded peers in national interior ministries promote their agenda via international fora.72 In that respect, ‘Schengen’ complemented the informal TREVI group, which had discussed internal security and selected asylum matters among the Member States from the 1970s onwards.73 Early justice and home affairs cooperation within the Schengen framework and other fora unfolded with the explicit support of national governments, not against their will. Secondly, there had always been disputes about the relative weight of national governments and EU institutions. The Commission had tried to get a metaphorical foot in the door of migration policy via supranational competences on social policy, only to be called off by the Member States. They successfully challenged modest consultation and cooperation requirements.74 Another strand of the legal debate concerned the question of whether the promise of the internal market as ‘an area without internal frontiers’ in today’s Article 26(2) TFEU brought about a legislative competence for border controls, or even a directly applicable obligation to do so.75 Discussions were about more than institutional prerogatives. Behind the reticence of national capitals to realise ‘Schengen’ within the framework of the Brussels-based institutions lay the concern that the freedom-enhancing rationale of the single market would trump security concerns.76 In the eyes of interior ministries, the 68 See Commission, ‘Communication: A Passport Union’ COM(75) 322 final; the terminology goes back to the historic model of the Nordic Passport Union of 1952/54. 69 See Commission, ‘White Paper: Completing the internal market’ COM(85) 310 final Nos 24–32. 70 See Angela Siebold, ZwischenGrenzen (Ferdinand Schöningh 2013) 40–59. 71 On the French debate see Simone Paoli, ‘France and the Origins of Schengen’ in Elena Calandri and others (eds), Peoples and Borders (Nomos 2017) 255, 258–65; and on Germany see Siebold (n 70) 301–12. 72 See ch 2.1.2. 73 TREVI was set up after the terrorist attacks by left-wing radicals, such as the Italian Brigate Rosse, and secessionists like the Spanish-Basque ETA or the Irish Republican Army; see Eva Oberloskamp, Codename TREVI (De Gruyter 2016). 74 Decision 85/381/EC setting up a prior communication and consultation procedure on migration policies [1985] OJ L217/25, adopted on the basis of today’s TFEU, art 153, was annulled by Joined Cases 281/85, 283, 284, 285 and 287/85 Germany and others v Commission EU:C:1987:351. 75 See Georgia Papagianni, Institutional and Policy Dynamics of EU Migration Law (Martinus Nijhoff 2006) 6–13. 76 See Ruben Zaiotti, Culture of Border Controls (University of Chicago Press 2011) chs 4–6.

26 Building an Area of Freedom, Security and Justice political emphasis should not be unhindered mobility but the realisation of effective security by other means than internal border controls. Contemporary debates about the need to ‘protect’ the external borders can be traced back to that period. Indeed, the Schengen rulebook follows a simple quid pro quo: the abolition of internal border controls was considered to require ‘flanking measures’ compensating national authorities for the loss of control options at the internal borders through inter-state cooperation on policing, criminal matters, and migration.77 Common standards were deemed indispensable for the control of the external borders, legislative harmonisation on questions such as asylum jurisdiction or tourist visas, and the introduction of novel instruments, in particular the Schengen Information System (SIS). Having said this, the compensatory logic was not about achieving internal freedom at the ‘price’ of external restrictions. Rather, national governments, not least among the original Schengen countries, pursued external controls as an end in itself to buttress domestic asylum reforms mentioned in Chapter 13.1. There were different views about the relative weight of openness and closure in the design of these measures but the consensus on their necessity was widely shared.78 Judges confirmed that view retroactively when they found the basic guarantee of ‘an area without internal frontiers’ not to be directly applicable without prior agreement on flanking measures.79 The gradual emergence of Schengen was a classic case of spillover, which occurs when supranational policies prepare the ground for political initiatives on related policy fields. The initial move towards EU migration law was the result of trickle-down effects of the political decision to abolish internal border controls in the broader context of the single market programme and the move towards political union. First agreed upon by interior ministers of the five original Schengen countries, the flanking measures soon transcended the compensatory logic and turned into ends in themselves.80 Schengen served as a laboratory for the design of new control instruments. We shall see in Chapters 9 and 11 that Europeanisation was critical in promoting the use of databases and pre-arrival measures, in particular visa requirements and carrier sanctions.

1.2.2 Treaty of Maastricht: fragile intergovernmental cooperation From the beginning, the Schengen area had been linked to the European Economic Community politically and legally.81 This connection gained momentum in the 1990s when the original idea to establish a ‘European Union’ with an enhanced degree of political integration lead to the Treaty of Maastricht. The Treaty entered into force at the end of 1993 after a turbulent ratification process. Unease with justice and home affairs in the UK and Denmark proved significant for later opt-outs, which will be discussed in Chapter 2.4 77 ibid ch 5; and Siebold (n 70) ch 3. 78 See Commission (n 68) 11–15, 15–19; Schengen Agreement 1985 (n 66) arts 7–9, 17–20; Commission (n 69) No 28; and Political declaration by the Governments of the Member States on the free movement of persons, attached to the Single European Act [1987] OJ L169/25. 79 See Case C-378/97 Wijsenbeek EU:C:1999:439, para 40, which goes back to an ‘activist’ Dutch MEP; see John Morijn, ‘Personal Conviction and Strategic Litigation in Wijsenbeek’ in Fernanda Nicola and Bill Davies (eds), EU Law Stories (CUP 2017) 178. 80 See Ferruccio Pastore, ‘Visas, Borders, Immigration’ in Neil Walker (ed), Europe’s Area of Freedom, Security and Justice (OUP 2004) 89, 94–98. 81 CISA, arts 134 and 140 recognised that Community law takes precedence in cases of conflict and that other Member States can join via an accession treaty.

Towards Distinct Policies for Third Country Nationals 27 on institutional practices. For our purposes, ‘Maastricht’ should be remembered as the moment when immigration and asylum policy generally fell within the ambit of the EU institutions. The legal construction of the Maastricht Treaty was complex and should only be studied by those with a generic interest in the institutional processes that led to today’s area of freedom, security, and justice. The newly founded EU was based on three ‘pillars’.82 The first pillar was the original EEC Treaty, which was rebranded as the Treaty establishing the European Community (EC Treaty); it contained the single market and related policy fields and was subject to the traditional characteristics of supranational law-making. The EC Treaty was complemented by the Treaty establishing the European Union (EU Treaty) with overarching provisions and two distinct sets of rules on foreign and security policy (second pillar) and justice and home affairs (third pillar). The second and third pillars had intergovernmental features. In justice and home affairs, the EU Treaty did not allow for the adoption of directives and regulations, only non-binding joint positions and international conventions subject to ratification by national parliaments.83 The direct outcome of intergovernmental decision-making was meagre, at least from a legal perspective. The Council unanimously agreed on a substantial number of non- binding resolutions on diverse matters such as unaccompanied minors, labour migration, admission of students, or the refugee definition,84 thus complementing prior informal cooperation on an ad hoc basis outside the EU framework.85 The Council also discussed international conventions to replace the Schengen framework, which were not pursued further when the Treaty of Amsterdam came into sight.86 The well-known Dublin Convention of 1990 on asylum jurisdiction, discussed in Chapter 13.3, proved the most tangible output. It was the only treaty on migratory matters that came into force after several years of a drawn- out ratification process. Even though the Maastricht Treaty’s third pillar produced little legally binding output, the informal arrangements provided a bedrock of common standards the EU institutions could build upon later.

1.2.3 Treaty of Amsterdam: gradual supranationalisation In 1997, the Treaty of Amsterdam made a decisive step towards the European migration law as we know it today. Heads of state or government decided to transfer the provisions on visas, border controls, asylum, and immigration (as well as private international law) from the intergovernmental ‘third pillar’ to the supranational ‘first pillar’.87 This allowed the EU institutions to adopt directives and regulations. Important instruments, which remain 82 The term was widely used in academic and political circles but did not feature in primary law. 83 See EU Treaty, as amended by the Treaty of Maastricht, art K.3(2); and Richard McMahon, ‘Maastricht’s Third Pillar’ (1995) 22 L Issues Eur Int 51. 84 See Elspeth Guild, Immigration Law in the European Community (Kluwer 2001) 255–73; Kay Hailbronner, Immigration and Asylum Law and Policy of the European Union (Kluwer 2000) 47–52; and Jörg Monar and Roger Morgan (eds), The Third Pillar of the European Union (Peter Lang 1995). 85 On the London Resolutions of 1992 and the ‘Ad hoc Group on Immigration’ see Eileen Denza, The Intergovernmental Pillars of the European Union (OUP 2002) ch 3. 86 See David O’Keeffe, ‘The New Draft External Frontiers Convention and the Draft Visa Regulation’ in Monar and Morgan, The Third Pillar (n 84) 135. 87 See EC Treaty, arts 61–69, as amended by the Treaty of Amsterdam; on the negotiations see Guild, Immigration Law (n 84) 295–340.

28 Building an Area of Freedom, Security and Justice in force until today, were adopted on the basis of the new Treaty framework, especially the Family Reunification Directive 2003/86/EC and the Long-Term Residents Directive 2003/ 109/EC. Having said this, the ‘communitaurisation’ of decision- making by the Treaty of Amsterdam remained incomplete. Its institutional provisions have been aptly described as a ‘ghetto’88 within the supranational legal order. Governments were not ready to abandon a tight control of decision-making on this sensitive matter.89 The European Parliament was consulted only, the Commission shared the agenda-setting power with the Member States, not all domestic courts could make preliminary references to the Court of Justice, and, crucially, the Council acted unanimously.90 National governments held a veto power and could block agreement unless the others accommodated their concerns. That is how optional clauses on integration requirements found their way into rules on family reunification and long-term residents. The Treaty of Nice, which entered into force in 2003, extended today’s ordinary legislative procedure to certain segments of migration law.91 One year later, the Council activated a bridging clause rendering more areas subject to qualified-majority voting, as well as the co-decision powers of the Parliament.92 This was done once the Member States had unanimously agreed on core pieces of legislation in order not to give the Parliament leverage to influence the original design. Full supranationalisation was brought about by the Treaty of Lisbon, which also abolished other remnants of intergovernmentalism, such as the limitation of preliminary references to national apex courts.93 Chapter 3 will demonstrate that the number of Court judgments grew substantially thereafter. From today’s perspective, we may conclude that the former ‘ghetto’ has been gentrified. When it came to the policy substance, the Treaty of Amsterdam left a two-fold mark. First, it introduced the notion of an overarching ‘area of freedom, security, and justice’, to be discussed below. Secondly, the Treaty of Amsterdam incorporated the body of rules that make up the Schengen ‘acquis’94 into the EU framework. That was achieved on the basis of country-specific opt-outs for the UK (before Brexit) and Ireland, along with rather complex rules on the association of Denmark, to be discussed in Chapter 2.4. The Schengen Protocol effectively turned the intergovernmental rules of the Schengen acquis into supranational legislation, which can be amended in the ordinary legislative procedure.95 Today’s Schengen Borders Code Regulation and the Visa Code Regulation are prominent successor instruments.

88 Steve Peers, EU Justice and Home Affairs Law (1st edn, Longman 2000) 2. 89 See Papagianni (n 75) 25–51; and Neil Walker, ‘In Search of the Area of Freedom, Security and Justice. A Constitutional Odyssey’ in Walker, Europe’s Area (n 80) 3, 16–20. 90 See EC Treaty, arts 67 and 68, as amended by the Treaty of Amsterdam; after a five-year-period, the Commission obtained a monopoly of initiative for most policy areas and qualified-majority voting in the Council became possible on selected matters; for details see Hailbronner (n 84) 92–103. 91 See EC Treaty, art 67(5), as amended by the Treaty of Nice (adopted 26 February 2001, entered into force 1 February 2003) [2006] OJ C321E/37; and Protocol [No 35] on Article 67 [2006] OJ C321E/317; for comments see Papagianni (n 75) 88–100. 92 See Decision 2004/927/EC [2004] OJ L396/45; and Pieter Jan Kuijper, ‘The Evolution of the Third Pillar from Maastricht to the European Constitution’ (2004) 41 CML Rev 609. 93 cf EC Treaty, art 68(1), as amended by the Treaty of Amsterdam. 94 The French noun ‘acquis’ (for ‘acquired’ rights and obligations) is widely used in EU jargon to describe a set of rules, in particular in the context of accession. 95 See ch 12.3.3; and Daniel Thym, ‘The Schengen Law’ (2002) 8 ELJ 218.

Towards Distinct Policies for Third Country Nationals 29

1.2.4 Treaty of Lisbon: autonomy of migration law Besides aligning decision-making with the orthodoxy of the supranational integration method, the Treaty of Lisbon confirmed the autonomy of migration law as a policy field in its own right. What had started off as a spillover of the abolition of internal border controls turned into a free-standing Treaty objective: the Union ‘shall offer its citizens an area of freedom, security, and justice’ comprising, amongst others, ‘appropriate measures with respect to external border controls, asylum, immigration’.96 The Treaty abandoned the earlier reference to ‘flanking measures’97 compensating Member States for the loss of control at the domestic borders. Article 3(2) TEU lists the area of freedom, security, and justice among the EU’s top priorities. Migration law towards third country nationals became a self-sufficient policy field. What is more, the Treaty of Lisbon consolidated the scope of Union competences in line with the proposal of the erstwhile Constitutional Treaty, which had been discarded after negative referenda in France and the Netherlands. The Convention, which had drafted the text of the Constitutional Treaty, was particularly active in the field of justice and home affairs; its recommendations were integrated in the Lisbon Treaty without major changes.98 It can be helpful, therefore, to consult the drafting documents to understand the meaning of formulations such as the ‘integrated management system for external borders’ in Article 77(2)(d) TFEU, which serves as the legal basis for Frontex. Preparatory documents can be found online,99 and academic literature supports their identification.100 The drafters of today’s Treaty text in the European Convention made a conscious choice to lay down broad competences, thereby allowing the institutions to develop EU migration policy gradually without the need to revert to politically cumbersome Treaty revision. The scope of the competences will be discussed in the sections on the constitutional foundations throughout the second part of this book.

1.2.5 European Council: political programming The project of an ‘area of freedom, security, and justice’ was conceived first by the Treaty of Amsterdam as a grand design mirroring the realisation of the customs union, the single market, and monetary union. All these projects were phased in over time on the basis of a political vision fulfilled through legislation, for which Treaty amendments introduced additional competences subject to streamlined decision-making.101 The area of freedom, 96 TEU, art 3(2), as amended by the Treaty of Lisbon (adopted 13 December 2007, entered into force 1 December 2009) [2008] OJ C115/13. 97 EC Treaty, art 61(a), as amended by the Treaty of Amsterdam. 98 TFEU, arts 77–80 essentially reiterate Treaty establishing a Constitution for Europe (adopted 24 October 2004, never entered into force) [2004] OJ C310/1, arts III-265–268; and the Convention’s Draft (adopted 18 June 2002) [2003] OJ C169/1. 99 See http://european-convention.europa.eu (accessed 1 March 2023). 100 See Clemens Ladenburger and Stephane Verwilghen, ‘Policies Relating to the Area of Freedom, Security and Justice’ in Giuliano Amato and others (eds), Genèse et destinée de la Constitution européenne (Bruylant 2007) 743; Henri Labayle, ‘L’espace de liberté, sécurité et justice dans la Constitution pour l’Europe’ [2005] Revue trimestrielle de droit européen 437; and Daniel Thym, ‘The Area of Freedom, Security and Justice in the Treaty establishing a Constitution for Europe’ WHI Paper 12/2004 http://ssrn.com/abstract=4117783 (accessed 1 March 2023). 101 See Jörg Monar, ‘The Area of Freedom, Security and Justice’ in Armin von Bogdandy and Jürgen Bast (eds), Principles of European Constitutional Law (2nd edn, Hart Publishing 2009) 551, 554–55.

30 Building an Area of Freedom, Security and Justice security, and justice followed this model with the important difference that the Treaty of Amsterdam laid down an abstract constitutional skeleton for which no distinct political vision existed. Policy objectives and countervailing interests were to be recalibrated step by step. Article 68 TFEU recognises the need for political guidance when it invites the European Council to ‘define the strategic guidelines for legislative and operational planning’. That provision was introduced by the Treaty of Lisbon after years of experience with agenda-setting at the highest political level. At the beginning, the European Council was influential. A promising start was the meeting in Tampere in October 1999, which kick-started supranational law-making after the entry into force of the Treaty of Amsterdam.102 Later five-year programmes were adopted at the meetings of the European Council in The Hague (2004),103 Stockholm (2009),104 and Ypres (2014).105 These programmes established a policy framework and helped overcome resistance when the European Council ‘urged’ hesitant interior ministers to ‘speed up’ legislation.106 In addition, other actors presented policy guidelines, such as the intergovernmental ‘Pact on Immigration and Asylum’ of 2008,107 the Commission’s ‘European Agenda on Migration’ of 2015,108 or the ‘New Pact on Migration and Asylum’ of 2020.109 These additional documents were influential, even though they did not necessarily reflect the views of all Member States. Throughout the years, the focus of attention has shifted. Such change of direction is no disadvantage, as it is the purpose of strategic guidelines to respond to changing circumstances. While the Tampere Conclusions were full of youthful enthusiasm echoing the optimistic outlook on globalisation after the end of the cold war, the Programme adopted in The Hague was dominated by the fight against terrorism following the September 2001 attacks. A few years later, the Stockholm Programme made an effort to find a middle ground between control imperatives and human rights concerns.110 Nevertheless, the Tampere Conclusions had similarly embraced a mixed approach already, ranging from the ‘control of external borders to stop illegal immigration’ to the ‘fair treatment’ of those residing legally.111 Debates on the Stockholm Programme of 2009 proved particularly heated, with skirmishes between the Commission and the Council about the weight of the different institutions and the road to be taken. While the Commission favoured further harmonisation on the basis of the broad set of competences under the Treaty of Lisbon, such as the vision of an ‘Immigration Code’, mentioned in Chapter 6.2.2 on the doctrinal foundations, the Council insisted on a cautious approach and objected to proposals which had emphasised

102 See European Council, ‘Presidency Conclusions of the Meeting in Tampere’ (15/16 October 1999); on the basis of the initial ‘Vienna Action Plan’ [1999] OJ C19/1. 103 ‘The Hague Programme’ [2005] OJ C53/1. 104 ‘The Stockholm Programme’ [2010] OJ C115/1. 105 European Council, ‘Conclusions of the Meeting in Ypres’ (EUCO 79/14, 27 June 2014) Nos 1–13. 106 See Presidency, ‘Seville European Council, 21/22 June 2002’ (Council doc 13463/02, 24 October 2002) No 37; and Papagianni (n 75) 215–20. 107 See ‘European Pact on Immigration and Asylum’ (Council doc 13440/08, 24 September 2008), which had been spearheaded by France, Germany, and the United Kingdom. 108 Commission, ‘Communication: A European Agenda on Migration’ COM(2015) 240 final. 109 See Commission, ‘Communication on a New Pact on Migration and Asylum’ COM(2020) 609 final. 110 See Cian C Murphy and Diego Acosta Arcarazo, ‘Rethinking Europe’s Freedom, Security and Justice’ in Diego Acosta Arcarazo and Cian C Murphy (eds), EU Security and Justice Law (Hart Publishing 2014) 1, 4–9. 111 European Council (n 102) Nos 3, 18, 21–22.

Towards Distinct Policies for Third Country Nationals 31 the rights of migrants. In symbolically important moves, it ditched the idea of an immigration code and replaced the call for ‘fairness’, in the Commission’s draft, with an insistence on ‘well-managed’ migration.112 The desire to evade renewed interinstitutional confrontation may have played a role in the decision to limit the Ypres Guidelines of 2014 to a few paragraphs with little substantive guidance.113 Moreover, the very idea of five-year plans may have lost its initial appeal, once EU institutions had succeeded in filling the original tabula rasa with important pieces of legislation. The sheer complexity of secondary legislation leaves little space for overarching guidance. It need not be the worst outcome, therefore, if the European Council discontinued the earlier practice of abstract programming.114 The five-year cycle was not taken up in 2019, unless one counts the ‘New Strategic Agenda 2019–24’ which dealt with migration on merely half a page.115 Controversial topics may always be taken up by the European Council, independent of five-year programmes. From a legal perspective, the guidance by the European Council remains political in the sense that the EU institutions are free to deviate during the legislative procedure. An example is the Long-Term Residents Directive, discussed in Chapter 15.6 on integration, which departed from the Tampere Conclusions by laying down strict conditions for intra- EU mobility, instead of replicating the free movement of Union citizens. The weight of the programmes stemmed from the underlying political consensus, not doctrinal attributes. Earlier programmes expired after five years, although they may serve as a contextual element elucidating the telos and the drafting history of the instruments adopted at the time. The loss of significance demonstrates that the area of freedom, security, and justice has reached a state of maturity. Change remains possible, but the centre of attention moves from abstract guidelines to the ‘nitty-gritty’.

1.2.6 Public discourse between ‘fortress Europe’ and ‘common values’ Debates about migration are not confined to the supranational institutions. The general public engages with supranational decision-making, which increasingly rises above the proverbial ‘closed doors’ of diplomatic negotiations. A turning point was the asylum policy crisis of 2015/16. An upsurge of public attention triggered a reconfiguration of the conceptual foundations in a sort of ‘constitutional moment’.116 The outcome of such fundamental realignment is not predetermined. Public discourse can push the debate in diverse directions. Corresponding public debates will not usually follow a quasi-academic style of reasoning: symbolic issues often develop a life of their own and short slogans with an

112 See Dora Kostakopoulou, Diego Acosta Arcarazo, and Tine Munk, ‘EU Migration Law’ in Acosta Arcarazo and Murphy, Justice Law (n 110) 129, 133. 113 See Philippe De Bruycker, ‘The Missed Opportunity of the “Ypres Guidelines” of the European Council’ EUI Migration Policy Centre Blog (29 July 2014). 114 The wording of TFEU, art 68 prescribes neither timeframes nor the adoption of a single document, ie it could possibly be complied with by means of regular interventions whenever the need for strategic guidance arises. 115 See European Council, ‘A New Strategic Agenda 2019–2024’ (Annex, EUCO 9/19, 20 June 2019) 7; apparently, draft guidelines were discussed later but no agreement was reached; see ‘Outcome of the 3756th Council meeting’ (Council doc 6582/20, 13 March 2020) 3. 116 See generally Bruce Ackerman, We, the People, vol 2 (Harvard UP 1998); and, on the EU, Daniel Thym, ‘The “Refugee Crisis” as a Challenge of Legal Design and Institutional Legitimacy’ (2016) 53 CML Rev 1545, 1566–69.

32 Building an Area of Freedom, Security and Justice emotional appeal embody the position of the speaker.117 In debates about migration, several of such symbolic markers stand out. A standard feature is a commitment to ‘a Europe that protects’.118 Similar language is used by those supporting ‘European sovereignty’,119 in an attempt not to leave the concept of sovereignty to those questioning the European project.120 Neither of these catchphrases necessarily comprises a clear-cut vision of migration policy, also considering that the object and purpose of protection and sovereignty will often be defined in an open manner, including values. Even so, the language of protection and sovereignty expresses the desire to improve state control over migratory movements. An emphasis on protection and sovereignty is often combined with semantic framing stressing border controls, ‘illegal’ migration, and security risks. Such a focus on control need not be equated with restrictions. It can be a sovereign choice to advance migration for humanitarian, economic, or political reasons, or as a French interior minister put it before he became President: immigration choisie et non subi.121 Chapter 18.1.1 will demonstrate that this is how the notion of ‘migration management’ was understood after the millennium change. Recent years have witnessed the emergence of a radical alternative. The desire for ‘management’ is increasingly being confronted with calls for ‘zero immigration’ by populist politicians and governments, in particular with respect to asylum. Hungary’s Prime Minister Victor Orbán spearheaded fence building and border closures, criticising the EU institutions: ‘they would like to manage migration, and not to stop the migrants’.122 Chapter 4.3.3 will show how such discursive framing may influence the policy outcome from an interdisciplinary perspective. A revealing example was Commission President von der Leyen thanking the Greek government for being the ‘ασπίδα’ (shield) of Europe when it closed its external borders in March 2020, after President Erdoğan had encouraged foreigners to leave Turkey in what initially appeared to be a potential mass exodus.123 Poland and Lithuania were praised by the European Council in October 2021 for rebutting a ‘hybrid attack’124 by means of an incitement of migratory movements by the Belarusian dictator. In both cases, martial language accompanied the denial of access to the asylum procedure. Critics of restrictive migration policies often use the antipodal slogan ‘fortress Europe’ to express discontent. While the term is widely understood to refer to migration nowadays, it emerged in the 1980s to describe the element of external economic closure when the single market programme harmonised internal standards, thus rendering it more difficult for 117 See Talcott Parsons, ‘The Theory of Symbolism in Relation to Action’ in Talcott Parsons and others (eds), Working Papers in the Theory of Action (The Free Press 1953) 31–62. 118 Former Commission President Jean-Claude Juncker, ‘Towards a Better Europe’ (State of the Union Address, 14 September 2016). 119 French President Emmanuel Macron, ‘Initiative pour l’Europe’ (Discours à la Sorbonne, 26 September 2017). 120 See Ségolène Barbou des Places, ‘Taking the Language of “European Sovereignty” Seriously’ (2020) 5 European Papers 287; and Simone Penasa and Graziella Romeo, ‘Sovereignty-based Arguments and the European Asylum System’ (2020) 22 EJML 11, 12–22. 121 See ‘Pour Nicolas Sarkozy, ‘L’immigration choisie est un rempart contre le racisme’ Le Monde (27 April 2006). 122 Eszter Zalan, ‘Visegrád Countries Immediately Push Back on New Migration Pact’ EUobserver (25 September 2020). 123 See Ursula von der Leyen, ‘Remarks at the Joint Press Conference with Kyriakos Mitsotakis, Prime Minister of Greece, Andrej Plenković, Prime Minister of Croatia, President Sassoli and President Michel’ (Statement 20/ 380, 3 March 2020). 124 European Council, ‘Conclusions’ (ECUO 17/21, 22 October 2021) No 19; see also ch 10.7.

Distinguishing Union Citizenship from Third Country Nationals 33 foreign companies to sell their produce.125 The slogan built upon Nazi vocabulary for the fortification of the French coast against an Allied invasion.126 Those criticising the prospect of ‘fortress Europe’ often emphasise an alternative vision of European integration that promotes common values instead of collective interests. Reference to ‘European values’ is widespread in policy debates, not only about migration. Chapter 4.3.4 will highlight that an emphasis on values and human rights may have radiating effects on the policy substance and court rulings. In doing so, human rights can serve as a counterpoint to the public references to ‘illegal’ migration and security threats. Note that the binary character of many debates need not prevent an accommodation of the countervailing positions, both theoretically and practically. Such room for alignment is particularly relevant for the EU institutions, which have traditionally sought to balance diverse positions in a mixture of interest-based realism and value-oriented idealism, as traced in Chapter 2.1 on the institutional practice. A telling example of how the search for compromise can go astray was the designation of the portfolio of Commission Vice-President Schinas for the 2020–24 period, which includes the coordination of internal and external migration policies. The original proposal spoke of ‘Protecting our European way of life’127 and was criticised as shorthand for restrictions, despite the small-print of the job description referring to values underlying the way of life. In the end, the phrasing was changed to the positive sounding motto of ‘promoting’128 the European way of life—a classic supranational compromise formula.

1.3 Distinguishing Union Citizenship from Third Country Nationals Anyone studying migration law at a time of fierce criticism of the EU’s asylum policy will find it difficult to grasp the enthusiasm with which observers had approached Europeanisation previously. There was a widespread assumption that the supranational institutions would counter securitarian biases among interior ministries when intergovernmental decision- making subsided.129 This prediction was correct to a certain extent, as the legislation described throughout this book will demonstrate. Nevertheless, many had hoped for further approximation to Union citizenship. The constitutional design of the area of freedom, security, and justice is one explanation why that did not happen. Instead of Treaty-based guarantees to free movement (1.3.1), the legislature determines the degree of openness or closure (1.3.2). Scenarios of overlap with Union citizenship were visible in early debates (1.3.3), before the adoption of migration-specific instruments gradually established an alternative policy rationale for migration law (1.3.4).

125 See C Michael Aho, ‘Fortress Europe’ (1994) 29 Columbia J World Bus 32. 126 See Cornelia Schmitz- Berning, ‘Festung Europa’ in Cornelia Schmitz- Berning (ed), Vokabular des Nationalsozialismus (De Gruyter 2007) 232. 127 Ursula von der Leyen, ‘A Union that strives for more. My agenda for Europe’ (July 2019) section 4. 128 Ursula von der Leyen, ‘Mission Letter: Margaritis Schinas’ (1 December 2020). 129 By way of example see Elspeth Guild, The Legal Elements of European Identity (Kluwer 2004) chs 7–12; and Anja Wiesbrock, ‘Granting Citizenship-Related Rights to Third-Country Nationals’ (2012) 14 EJML 63.

34 Building an Area of Freedom, Security and Justice

1.3.1 Primary law: open-ended Treaty objectives The introduction of ‘Union citizenship’ and distinct rules for ‘third country nationals’ in the Treaty of Maastricht were parallel phenomena, which built on the exclusion of foreigners, including colonial subjects, from free movement. The harmonisation of migration law was the functional equivalent of the external tariff for the importation of goods, which followed a different rationale from the vision of unhindered circulation within the single market. It did not come as a surprise, therefore, that the intergovernmental conferences and the drafters of the Constitutional Treaty, which later became the Treaty of Lisbon, opted for flexibility. Articles 77–79 TFEU depart from the internal mobility regime when laying down diverse— and potentially contradictory— objectives. The abolition of internal borders within the single market gives way to the ‘enhanced measures to combat illegal immigration’,130 which must be in ‘compliance with the principle of non-refoulement’.131 Generally, ‘the efficient management of migration flows’132 should be accompanied by ‘fair[ness] towards third-country nationals’.133 The vague notion of an ‘area of freedom, security, and justice’ does not shed light on how to operationalise this conglomerate of objectives. ‘Freedom’, ‘security’, and ‘justice’ are essentially contested theoretical concepts, which can be realised in diverse ways.134 Most political actors can subscribe to them in the abstract, although they may disagree quite fundamentally about the design of specific instruments. From a constitutional perspective, the open texture coincides with limited practical impact. Objectives in Articles 67 and 77–80 TFEU are legally binding on the EU institutions and can be points of reference in the policy debate. However, they will not usually translate into judiciable yardsticks for secondary legislation135—mirroring the constitutional status of the values and objectives enshrined in Articles 2, 3, and 21 TEU. Academics may criticise the predominance of securitarian approaches, but such criticism remains external to the law as long as the policy instruments do not fall foul of judiciable constitutional standards, such as human rights. The legislature benefits from a principled discretion on how to implement and balance policy objectives. For that reason, the abstract designation of ‘justice and home affairs’ can be considered more appropriate than the term ‘area of freedom, security, and justice’, which can be understood to hint at an underlying normative vision. Indeed, two Directorates General of the Commission and the European Parliament’s well-known Committee on ‘civil liberties, justice, and home affairs’ (LIBE) continue referring to ‘justice and home affairs’ in line with earlier Treaty language.136 The notion of an ‘area of freedom, security, and justice’ can only be understood against the backdrop of the compensatory logic of the original Schengen cooperation. The triad freedom—security—justice presents us with a rough designation of the ‘flanking measures’

130 TFEU, art 79(1). 131 ibid art 78(1). 132 ibid art 79(1). 133 ibid art 67(2); similarly, ibid art 79(1). 134 See generally Jeremy Waldron, Law and Disagreement (Clarendon Press 1999). 135 See further Anna Kocharov, Republican Europe (Hart Publishing 2017) 84– 90; and Jürgen Bast, Aufenthaltsrecht und Migrationssteuerung (Mohr Siebeck 2011) 141–44. 136 At present, there are two DGs on ‘migration and home’ (HOME) and ‘justice and consumers’ (JUST), which indirectly take up the title for EU Treaty, arts K.1–9, as amended by the Treaty of Maastricht.

Distinguishing Union Citizenship from Third Country Nationals 35 on internal mobility and migration (freedom), judicial cooperation (justice),137 and criminal matters (security). These themes defined the Convention Implementing the Schengen Agreement and the intergovernmental ‘third pillar’ of the Treaty of Maastricht. Similarly, Chapter 7.1.1 will explain that the term ‘area’ does not have a fixed meaning in the EU context and loses the territorial connotations it can have in English in other language versions, such as the French espace. There is, in short, no forward-looking policy vision behind the ‘area of freedom, security, and justice’. The loss of relevance of strategic planning through the European Council’s five-year programmes reaffirms that an overarching concept did not develop over time. Reference to the ‘fair treatment of third country nationals’138 may be read to invoke basic notions of social justice, but it appears in a different light upon closer inspection. ‘Fairness’ is not only, like ‘justice’, an essentially contested concept whose operationalisation requires policy choices on what it means. Moreover, it marks a symbolic distinction from the ‘equal treatment’ that Union citizens enjoy with nationals.139 The expression was first used by the Tampere Conclusions as the standard formula for foreigners residing legally.140 Historically, the term ‘fair treatment’ resonates with customary rules on the treatment of foreigners.141 Invocation of ‘fair treatment’ indicates that the EU Treaties aim at a level of protection transcending the minimum requirements of fundamental rights, while staying short of ‘equal treatment’ with nationals in the tradition of Union citizenship. Courts will not usually deduce judiciable standards from the abstract notion of fairness.142 The legislature is primarily responsible for deciding what it considers fair, while judges will focus on the interpretation of secondary legislation and human rights.

1.3.2 Legislative leeway within the confines of human rights Third country nationals cannot invoke constitutional guarantees to cross-border movement in the same way as Union citizens. Judges even found migration law and Union citizenship to be ‘entirely different’.143 Nevertheless, our analysis should beware false dichotomies. Acknowledging differences between justice and home affairs and the single market does not imply unfettered state discretion. There are alternatives to the binary juxtaposition of free movement and traditional notions of alienage.144 Articles 77–80 TFEU entrust the legislature with operationalising the abstract policy objectives. Moreover, third country nationals 137 Note that the English and French versions employ the normative term ‘justice’, while other languages use the technical word ‘law’ (German Recht; Dutch recht). 138 TFEU , art 79(1); similarly, TFEU , art 67(2); French traitement équitable; German angemessene Behandlung. 139 See Sara Iglesias Sánchez, ‘Constitutional Identity and Integration’ (2017) 18 GLJ 1797, 1803; and Andreas Funke, ‘Primärrechtliche Grundlagen’ in Ferdinand Wollenschläger (ed), Enzyklopädie Europarecht, Band X (2nd edn, Nomos 2021) § 16 MN 13, 58. 140 See European Council (n 102) No 18; and, argumentum e contrario, higher standards for long-term residents in No 21. 141 Other language versions, mentioned in n 138, demonstrate a direct linguistic similarity with the ‘Hull Doctrine’ requiring ‘adequate’ compensation in case of expropriation; see ch 5.1.1. 142 Contra Ester Herlin-Karnell, The Constitutional Structure of Europe’s Area of ‘Freedom, Security and Justice’ and the Right to Justification (Hart Publishing 2019) chs 2–4; and Anna Magdalena Kosińska and Barbara Mikołajczyk, ‘Does the Right to Migration Security Already Exist?’ (2019) 21 EJML 83, 106–109. 143 Case C-718/19 Ordre des barreaux francophones et germanophone and others EU:C:2021:505, para 53; see also Case C-930/19 État belge EU:C:2021:657, paras 71–76; and Iglesias Sánchez (n 139) 1798–807. 144 See Daniel Thym, ‘Citizens and Foreigners in EU Law’ (2016) 22 ELJ 296.

36 Building an Area of Freedom, Security and Justice can rely on alternative constitutional safeguards in the Charter of Fundamental Rights, which generally presents itself as an avant-garde catalogue.145 Human rights may be less generous than citizens’ rights but their protective credentials overcome classic notions of state sovereignty nonetheless. Chapter 5 will demonstrate that, in the field of migration, the Charter reaffirms existing guarantees under the European Convention on Human Rights (ECHR), while adding new guarantees, such as the rights of the child and the right to good administration. The degree of protection varies depending on the subject matter, but a common thread stands out: human rights do not usually—unlike Union citizenship—embody a right to entry, with the notable exception of refugees who may rely on Articles 4 and 18 of the Charter of Fundamental Rights of the European Union (CFR) to challenge non-admission at the border if they face a real risk of inhuman treatment.146 By contrast, the right to private and family life under Article 7 CFR limits state discretion when it comes to expulsion, but it ‘cannot be interpreted as denying States a certain margin of appreciation when they examine applications for family reunification’.147 Secondary legislation may establish a higher level of protection but such an outcome is not mandatory under human rights law. With regard to economic migration, Article 15 CFR reiterates the distinction between third country nationals and Union citizens. The provision starts with a reminder of citizens’ rights to seek employment anywhere,148 before reaffirming the absence of a generic right of third county nationals to enter Union territory: ‘Nationals of third countries who are authorised to work in the territories of the Member States are entitled to working conditions equivalent to those of citizens of the Union.’149 This sounds progressive, but the substance is meagre given that equal working conditions are largely uncontroversial in today’s Europe, as discussed in Chapter 15.4 on integration. Within the limits of human rights, the choice whether external borders shall be ‘open’ or ‘closed’ for labour migration rests with the political process. In a similar manner, the Charter differentiates between the intra-EU mobility of Union citizens and third country nationals. Think, by way of example, of an Albanian residing in Greece who wants to work in Slovakia. While Union citizens are entitled to free movement in such a scenario, Article 45(2) CFR maintains that similar rights ‘may be granted’ to third country nationals in accordance with the Treaties. The scope of intra-EU mobility is determined in the legislative process.150 The legislature may opt for a generous mobility regime but is not constitutionally obliged to do so. Distinctions between ‘citizens’ rights and the ‘human’ rights define many constitutions around the globe—with the rights to vote and unconditional entry and stay being prime examples of the insider privilege.151 EU primary law replicates this model.

145 CFR, recital 4 emphasises that the Charter responds to ‘changes in society, social progress and scientific and technological developments’. 146 See chs 12.2.4 and 13.2.3. 147 Case C-540/03 Parliament v Council EU:C:2006:429, para 59; as well as chs 14.2.3 and 16.2.3. 148 CFR , arts 52(2), (7) and the official Explanations [2007] OJ C303/17, 23 confirm that CFR , art 15(2) is to be interpreted in line with TFEU , arts 45, 49, 56. 149 CFR , art 15(3) (emphasis added). 150 As a ‘principle’, CFR , art 45(2) can be relied upon only indirectly, in line with art 52(5), once legislation has specified the conditions of free movement. 151 See Jo Shaw, The People in Question (Bristol UP 2020).

Distinguishing Union Citizenship from Third Country Nationals 37 A classic critique of the EU Treaties concerns what scholars of constitutional law describe as ‘overconstitutionalisation’, which occurs when primary law pre-empts policy choices, for instance in the single market and monetary policy.152 Judicial deference to political choices in economic and monetary issues may have mitigated this criticism in recent years.153 For our purposes, however, the argument highlights that the absence of ‘overconstitutionalisation’ on migratory matters can be described as a virtue from a theoretical perspective. The EU Treaties leave room for political choices.154 That change of direction in comparison to the Treaty design for the single market and monetary union may signal the maturity of the European project. Constitutional prescriptions give way to legislative leeway within the confines of human rights.

1.3.3 Overlap with Union citizenship Political debates, court judgments, and academic research are often dominated by path- dependency. Entrenched earlier patterns influence new developments until, possibly, a new paradigm is being established.155 Against this background, political decisions and the case law on migration can be described as a process of discovery, which gradually recognised the specificity of the Treaty regime for third country nationals. While the legislature was comparatively quick to adapt in line with the comments hereinafter, the Court started interpreting migration law in the 2010s. In doing so, judges were influenced by several dozen judgments dealing with grey areas of overlap between Union citizenship and the status of third country nationals which had been delivered previously. Four such areas of legal and conceptual intersection stand out. First, family members of Union citizens who have exercised the right to free movement benefit from generous legislation and Court judgments. Family members holding the passport of a third state are covered by these guarantees in the form of ‘derived rights’. A similar spillover occurs whenever European companies post workers from a third state to deliver a service in another Member State.156 A series of cases throughout the early 2000s increased the level of protection for family members of Union citizens. This process culminated in the Ruiz Zambrano judgment, before judges changed course and emphasised the limits of the earlier case law, as described in Chapter 14.3.1 on legal migration. Several of these follow- up judgments mentioned the different outlook of the EU migration law instruments,157 thereby recognising that third country nationals cannot be addressed from the angle of Union citizenship alone. Judges ‘discovered’ the specificities of the area of freedom, security, and justice in these rulings.

152 See Fritz Scharpf, ‘The European Social Model’ (2002) 40 JCMS 645; and Dieter Grimm, ‘The Democratic Costs of Constitutionalisation’ (2015) 21 ELJ 460. 153 See Nicole Scicluna, European Union Constitutionalism in Crisis (Routledge 2015) ch 5; and Loïc Azoulai, ‘The Court of Justice and the Social Market Economy’ (2008) 45 CML Rev 1335. 154 See also Kocharov (n 135) ch 3. 155 See generally James Mahoney, ‘Path Dependence in Historical Sociology’ (2000) 29 Theory and Society 507; for the CJEU see Susanne K Schmidt, ‘Who Cares about Nationality?’ (2012) 19 JEPP 8. 156 See ch 14.5.1. 157 See Case C-256/11 Dereci and others EU:C:2011:734, paras 71–72; Joined Cases C-356/11 and C-357/11 O and S EU:C:2012:776, paras 61–81; Case C-40/11 Iida EU:C:2012:2405, paras 78–81; and Case C-82/16 K.A. and others EU:C:2018:308, paras 44–46, 98–107.

38 Building an Area of Freedom, Security and Justice Secondly, the freedom-enhancing effect of enlargement was significant. Ever more states joined the European Union, which compromised around 500 million inhabitants on the eve of Brexit—approximately 130 million more than at the time of the Maastricht Treaty. Sixteen states including Austria, Finland, Poland, and Latvia, as well as Romania and Croatia joined the Union between 1995 and 2014, thus gradually extending free movement rights to an ever larger number of countries. Hence, people who would have had to apply for a visa only a generation ago can look for jobs across Europe nowadays, without the need for prior authorisation. To date, the prospect of free movement is an important motivation for states in the Western Balkans and Georgia to seek membership. However, the snowball effect of free movement via enlargement did not embody a general commitment to universal mobility, also considering that accession implied the export of control instruments to the new external borders.158 From a constitutional perspective, the attraction of membership reaffirms that it makes a difference whether you are an ‘insider’ or an ‘outsider’, precisely because the rules on third country nationals are different. Thirdly, the Court considerably enhanced the level of protection for former Turkish ‘guest workers’ and their families in a series of more than seventy judgments on the basis of an association agreement, which today’s EU had signed with Turkey in 1963. Judges assumed that these rules should be interpreted ‘so far as is possible’159 in light of the EU’s internal free movement regime. It seemed as if a ‘domino effect’ would extend the privileges of Union citizens to different categories of third country nationals.160 However, that proved to be a premature conclusion. Judicial dynamics were reversed when the Court distinguished the privileges of Union citizens from the status of Turkish nationals, while maintaining the protective credentials of the earlier case law. Chapter 17 will show that relations with neighbours moved away from the single market paradigm, instead embracing the specificities of the area of freedom, security, and justice. Fourthly, there remains room for subtle forms of overlap, approximation, and distinction between citizens’ rights and migration law. A case in point is the legislative ‘public policy’ exception for the denial or withdrawal of residence permits. The Court assumes that corresponding guarantees for third country nationals and Union citizens are to be interpreted similarly to start with, even though interpretation can result in differentiation, as we shall see in Chapter 10.3. Moreover, the relationship between case law concerning Union citizens and third country nationals is not a one-way street with the former having radiating effects on the latter. Similarly, the reverse scenario remains possible when judges emphasise the limits of free movement and equal treatment under the Free Movement Directive 2004/38/ EC, thereby effectively approximating Union citizenship to migration law.161 It was and is not a foregone conclusion that rules for third country nationals would follow the historic model of free movement.

158 See ch 11.3.2; and Rosemary Byrne, Gregor Noll, and Jens Vedsted-Hansen, New Asylum Countries? (Kluwer 2002). 159 Case C-303/08 Bozkurt EU:C:2010:800, para 20; and ch 17.4. 160 See Kees Groenendijk, ‘Recent Developments in EU Law on Migration’ (2014) 16 EJML 313, 321–24; and Wiesbrock (n 129) 85–89. 161 See Daniel Thym, ‘Supranational Courts in Europe’ (2021) 47 JEMS 4534, 4539–40.

Distinguishing Union Citizenship from Third Country Nationals 39

1.3.4 Tipping points in the legislative process While the Court is responsible for the ‘final’ interpretation of the Treaties, EU institutions have the ‘first’ word. For the political debate, the early 2000s were a foundational period. Negotiations were defined by occasionally heated debates, and the instruments adopted at the time presented a distinct outlook. Comparatively generous Commission proposals were altered or even rejected by the Council on several occasions. Unanimity meant that some governments exercised considerable influence. There were at least three symbolically important ‘tipping points’162 when Member States left their mark on the basic outline of EU migration law. First, conditions for family reunification were hardened during the legislative process. Member States, especially those with a sizeable community of former ‘guest workers’ and late colonial migrants, insisted on stricter provisions and optional clauses to protect domestic rules. Chapter 14.1.2 on legal migration will illustrate that Europeanisation served as a catalyst for informal horizontal policy transfer, thus promoting the introduction of restrictions in more and more Member States, including pre-departure language tests. These developments reversed the equality-based integration concept that had defined Union citizenship. Parallel negotiations of the Family Reunification Directive 2003/86/EC and the Free Movement Directive 2004/38/EC reinforced the impression that migration law was decoupled from the single market. Chapter 15.4 will explain that the Court accepted the legality of integration requirements in two landmark judgments, albeit subject to a hardship clause to the benefit of individuals. Secondly, the final version of the Long-Term Residents Directive 2003/109/EC considerably watered-down the promise of the Tampere Conclusions to ‘approximate’ the status of long-term residents to that of Union citizens. Chapter 14.4.5 on legal migration will mention that the rules on intra-European mobility for third country nationals require prior authorisation by the second Member State which can insist, amongst other things, on labour market tests and integration measures. Moreover, the legislature introduced caveats limiting equal treatment with nationals, instead of replicating the broad scope of Article 18 TFEU. To be sure, the Long-Term Residents Directive enhanced residence security and equal treatment. For our purposes, however, the departure from the original promise of alignment with Union citizenship stands out. Thirdly, the Commission proposed ambitious legislation promoting legal channels for economic migration in the early 2000s. The Council flatly rejected this initiative, as explained in Chapter 14.1, thereby laying the ground for lengthy consultation processes which finally resulted in the sectoral approach focusing on selected categories. The Treaty of Lisbon confirmed the EU’s competence for the harmonisation of labour migration, subject to a caveat in Article 79(5) TFEU that serves as a symbolic marker of national prerogatives. Entry and stay for economic purposes reaffirms the distinct outlook of EU migration law, precisely because it deviates from the single market model.

162 On the game theoretical concept of ‘tipping points’ see Thomas Schelling, The Strategy of Conflict (Harvard UP 1980).

40 Building an Area of Freedom, Security and Justice

1.4 Summary European migration law did not appear out of the blue but developed on the basis of political choices and pre-existing cooperation patterns. Inter-state collaboration emerged on the European continent during the early twentieth century, for refugees in the framework of the League of Nations and for migrant workers on the basis of bilateral agreements and within the ILO. While not all of these early initiatives proved successful, they provided a conceptual template for more robust cooperation after the Second World War. To highlight instances of international cooperation before the advent of European integration illustrates that governments recognised the reality of migratory movements in Europe and beyond. Indeed, the formation of the sovereign nation during the late nineteenth and early twentieth centuries was a period of heightened and highly stratified mobility. Mass emigration to the Americas and internal movements on the old continent coincided with fierce colonial domination of the Global South from where few people reached Europe. It was not self-evident that the creation of a common market would embrace the free movement of people, since international trade law has traditionally been limited to goods and services. The political determination of the Italian government was a decisive factor as to why the Treaty of Rome recognised the free movement of workers, which the EU institutions interpreted generously when adopting implementing legislation. Historic studies show that free movement was consciously limited to nationals of the Member States, although relations to the (former) colonies played a prominent role in the early years; the institutions established a generous internal mobility regime from which non-Europeans were deliberately excluded. That episode had widely been forgotten when the Treaty of Maastricht introduced ‘Union citizenship’ as a signpost for the political aspirations of ever closer union. It was during that period that the EU institutions started dealing with the entry and stay of third country nationals. Migration law entered the picture on the basis of a simple quid pro quo: the abolition of internal border controls within the Schengen area was considered to require ‘flanking measures’ compensating national authorities for the loss of control options at the internal borders. The evolution of the Treaty regime was complex and should primarily be studied by those interested in understanding how the rules we know today came into being. Originally, there were two parallel tracks: cooperation within the Schengen area among five Member States and the intergovernmental ‘third pillar’ with rudimentary coordination powers of the EU institutions. Both pathways were merged when the Treaty of Amsterdam integrated the Schengen acquis into the EU framework and established a supranational competence for law-making. Ever since, the institutions have been adopting regular directives and regulations on the entry and stay of third country nationals. The transformation of the Treaty regime came full circle with the Treaty of Lisbon, which eliminated the remnants of intergovernmental decision-making and established a broad set of supranational competences in today’s Articles 77–80 TFEU. The Lisbon Treaty also strengthened the autonomy of migration law as a policy filed in its own right, as an integral part of the area of freedom, security, and justice. Unlike in the case of the single market or monetary union, the EU Treaties refrained from enshrining a specific policy design within primary law. The choice for how ‘open’ or ‘closed’ the external borders shall be for third country nationals is determined in the legislative process, within the confines of human rights.

Summary 41 In the early years, the European Council guided decision-making in the form of five-year programmes adopted in Tampere, The Hague, and Stockholm. These programmes reflected distinct political priorities in light of changing circumstances, such as the fight against terrorism. They have lost momentum in recent years, partly as a result of profound disagreement on the way forward. These different positions are reflected in the public discourse by symbolic markers embodying the position of the speaker: commitment to ‘a Europe that protects’ contrasts with criticism of ‘fortress Europe’. EU institutions have to hammer out compromises on how to reconcile the diverse and potentially contradictory policy objectives in Articles 77–80 TFEU. The first decade of decision-making saw several important tipping points where the Council left its mark on the design of migration law by introducing rules that differed markedly from the freedom-enhancing rationale of Union citizenship and the single market paradigm. We shall discuss elsewhere the extent to which human rights and the Court may serve as a counterpoint.

2

Institutional Prerogatives and Decision-making Legal rules do not materialise out of thin air. Legislation is the result of political compromises and occasional struggles on the road to be taken. That is why an institutional framework is more than a formalistic skeleton: it assigns privileges to shape the outcome to some actors, while limiting the influence of others. Corresponding mechanisms are particularly relevant for the EU which, as a supranational polity, has always employed institutional design for unity building. The preamble of the former Treaty establishing the European Coal and Steel Community declared the objective ‘to lay the bases of institutions capable of giving direction to the future common destiny’.1 Institutions can be essential for the gradual approximation of national interests and the formation of a collective impulse. At the same time, the institutional architecture is subject to change, contestation, and challenges. As mentioned previously, adaptation of the Treaty regime to the orthodoxy of the supranational integration method occurred gradually; the transformation of hitherto intergovernmental decision-making came full circle with the Treaty of Lisbon. Against this background, this chapter will describe institutional prerogatives and the entrenched organisational culture, thus presenting a contextually and theoretically embedded analysis of everyday operations in the field of migration. Increasing criticism of the policy output, notably on asylum, and protracted political debates about the way forward render such contextual inspection pertinent. Our analysis begins with factors that help to explain, from the perspective of political science, both the success of the European venture and contemporary challenges at a time when the migration law instruments directly affect salient issues (2.1). A review of the official tasks and the established informal workings of the Commission, the European Council, the Council, and the European Parliament will focus on their position on migratory matters (2.2). Awareness of everyday practices is central for the appreciation of interinstitutional decision- making on the migration law instruments discussed throughout this book (2.3). A distinct feature of justice and home affairs is the non-participation of Denmark and Ireland (2.4).

2.1 Driving Forces behind Europeanisation European integration has fascinated observers from the beginning. It seemed unlikely that sovereign states would voluntarily ‘surrender’ their sovereignty to supranational institutions. Nevertheless, today’s EU proved surprisingly robust and expanded considerably over the decades. What started off as a primarily economic undertaking has gradually incorporated ever more substantive competences. Migration law is a telling example of the 1 Treaty establishing the European Coal and Steel Community (adopted 18 April 1951, expired 1 July 2002) 1754 UNTS 594, preamble recital 5. European Migration Law. Daniel Thym, Oxford University Press. © Daniel Thym 2023. DOI: 10.1093/oso/9780192894274.003.0003

Driving Forces behind Europeanisation 43 astounding success in embracing policy areas that are usually considered a manifestation of state sovereignty. Legal experts occasionally take the binding force of EU legislation for granted and expect— rightly so from a legal perspective—that political actors and administrative authorities should respect it. The precarious state of asylum policy reminds us that legal obligations are not always applied effectively and that difficulty can arise in reforming dysfunctional rules. Key findings within the political science literature help legal experts understand underlying dynamics. Different explanatory factors exist as to how EU migration law came about in the first place (2.1.1) and why the policy output fluctuates between protective and restrictive elements (2.1.2). Enhanced politicisation complicates the search for compromise (2.1.3) and explains both the criticism of a democratic deficit and the danger of institutional blockage (2.1.4).

2.1.1 The choice for Schengen as an example For legal analyses, the roles of the ‘good’ and the ‘bad’ guy are often straightforward. Supranational institutions pursue the common good and defend the rule of law, while Member States insist on national interests and try to circumvent their obligations. Political science presents us with a nuanced picture, fed by an in-built scepticism against the normative self-sufficiency of the law. Why would the states consent to extend the EU’s powers in successive Treaty amendments and the rights of migrants via legislation? Why do most domestic authorities and courts apply the latter despite the supranational institutions being ill-equipped to enforce it? Basic arguments of the political science literature can be elucidated by the origins of Schengen, which was traced in Chapter 1.2. At the heart of most arguments lies the somewhat artificial juxtaposition of two theoretical schools on how to explain EU integration in line with basic assumptions of international relations theory. On the one hand, intergovernmental (or realist) positions emphasise the national interest.2 France and Germany considered it to be in their mutual interest to prevent a lapse into economic protectionism and to promote further liberalisation by means of the single market programme; in the slipstream of these initiatives, internal border controls were abolished in the Schengen area.3 States ‘selfishly’ realised the venture in an intergovernmental setting. Over the years, interior ministers understood that Schengen allowed them to promote their agenda, thus spearheading the spread of control instruments. Once again, Europe appeared as the ‘rescue of the nation state’,4 by allowing governments to pursue objectives they could not effectively realise alone. Involvement of the supranational institutions was a solution to a prisoners’ dilemma, with supranational supervision ascertaining that others do not freeride by disrespecting common rules.5 Gradual supranationalisation of justice and home affairs can be rationalised on that basis.6 2 See generally Mark A Pollack, ‘Realist, Intergovernmentalist, and Institutionalist Approaches’ in Erik Jones and others (eds), The Oxford Handbook of the European Union (OUP 2012) 3. 3 See Andrew Moravcsik, The Choice for Europe (Ithaka Press 1998) 253–60; and Ruben Zaiotti, Culture of Border Controls (University of Chicago Press 2011) 6–10. 4 Alan S Milward, The European Rescue of the Nation State (2nd edn, Routledge 2000). 5 Moreover, smaller countries have traditionally insisted on strong supranational institutions to counterbalance potential dominance by bigger Member States. 6 See Stephan Stetter, ‘Regulating Migration’ (2000) 7 JEPP 80.

44 Institutional Prerogatives and Decision-making On the other hand, various strands of neo-functionalist, historical or sociological institutionalism, and constructivist analyses question the predominance of a seemingly unitary national interest.7 Instead, they emphasise spillover effects of earlier decisions and the role of domestic and private actors, other than governments, in influencing the policy outcome. According to neo-functionalists, the single market and the move towards political union provoked the abolition of internal border controls, thereby requiring states to cooperate on external borders, visas, and asylum. Even though interior ministries had originally been critical of ‘Schengen’, regular exchange among themselves promoted the emergence of a collegiate spirit and the transformation of control practices, which will be discussed in Chapter 12.1.3. The normative ideal of integration supported the gradual accession of ever more countries to the Schengen area. In the analysis of policy developments, both perspectives can be combined. Moreover, the relative weight of interests, normative ideas, and the institutional framework can change over time and according to the subject matter.8 For our purposes, these contrasting views on the formation of the Schengen area emphasise that our approach to migration law should be wary of false dichotomies. EU integration is about normative ideals and national interests at the same time. While the period after the cold war was defined by economic liberalisation, an optimistic outlook on globalisation, and an upsurge of idealism, state interests appear to have gained ground recently, also reflecting the changing geopolitical environment. Nevertheless, neither position explains the policy output single-handedly; explanatory factors will always overlap.

2.1.2 Continuity of mixed results in migration policy The public discourse tends to highlight symbolic markers that embody the position of the speaker: criticism of ‘fortress Europe’ stands for generous entry rules, whereas emphasis on a ‘Europe that protects’, or ‘European sovereignty’, accentuates migration management.9 Interaction of these outlooks has characterised EU migration policy from the beginning, although it is a new phenomenon that the debates make front-page news.10 We have seen in Chapter 1.2.1 that the intergovernmental set-up of the Schengen area was motivated, in part at least, by the desire to exclude the supranational institutions, which, at the time, focused on cross-border mobility rather than migration control. Dominance of interior ministers was a defining feature well into the early 2000s, on the basis of the Treaty of Maastricht’s intergovernmental ‘third pillar’ and, later, incomplete supranationalisation under the Treaties of Amsterdam and Nice. These early years have been described as a period of ‘securitisation’.11 Interior ministries used intergovernmental collaboration with like-minded peers to promote their agendas. Doing so can be rationalised as ‘venue shopping’, with governments side-stepping national

7 See Antje Wiener and Thomas Diez (eds), European Integration Theory (3rd edn, OUP 2019). 8 See Florian Trauner and Ariadna Ripoll Servent, ‘The Analytical Framework’ in Florian Trauner and Ariadna Ripoll Servent (eds), Policy Change in the Area of Freedom, Security and Justice (Routledge 2015) 11. 9 See ch 1.2.6. 10 The initial decision to abolish internal border controls was hardly noticed by the media; see Angela Siebold, ZwischenGrenzen (Ferdinand Schöningh 2013) 40–44. 11 See ch 4.3.4.

Driving Forces behind Europeanisation 45 parliaments and the public discourse, which, at the time, hardly took notice of the supranational developments.12 Such ‘two-level games’ have always existed, not only in the field of migration: national governments employ European fora to tame national politics and to support unpopular reforms.13 In a similar fashion, interior ministers ‘escaped’ to Europe to promote migration control. The historic background of the restrictive early years was what might be termed Europe’s first ‘asylum policy crisis’ when the fall of the Iron Curtain coincided with an increase in asylum applications. Neo- functionalist and constructivist accounts generally assumed that the supranationalisation of decision- making would strengthen liberal tendencies. The Commission, the European Parliament, and the Court of Justice were expected to champion individual rights, mirroring internal free movement. While the distinct role of these institutions will be discussed separately, contemporary literature recognises that the original expectation was only met to a limited extent for several reasons. To start with, European migration policy had never been defined by a clear-cut ‘race to the bottom’. The main destination countries mostly succeeded in ‘uploading’ domestic standards to the EU level. Doing so avoided changes to national legislation and prevented other countries from ‘competing’ by means of lesser levels of protection.14 The trend towards migrants’ rights gained momentum when the powers of the supranational institutions expanded. They are shielded, to a degree, from domestic scrutiny and often promote an idealistic vision of cross-border movements.15 Comments throughout this book will highlight the protective credentials of many pieces of legislation. This move towards moderately liberal policies was supported by the depoliticised environment of the early law-making, which implied greater influence of non-governmental organisations (NGOs).16 Nevertheless, comments that follow will demonstrate how the Commission and the Parliament struggled to shape migration policies. An important factor was the late move towards comprehensive supranationalisation under the Treaty of Lisbon. Member States had defined core legislation before the European Parliament gained institutional leverage. The intergovernmental origins of migration law had created a path-dependency follow-up legislation found difficult to deviate from.17 On the whole, the effects of Europeanisation cannot be expressed in a binary manner of either securitisation or individual rights. The output varies considerably over time and between policy areas.18 In the field of legal migration, national governments reined in the Commission’s proposals to adopt broad and comparatively generous directives on economic migration, family reunification, and long-term residents, which, nevertheless, establish

12 See Virgine Guiraudon, ‘European Integration and Migration Policy’ (2000) 38 JCMS 251; and Sandra Lavenex, The Europeanisation of Refugee Politics (Ashgate 2002). 13 European integration, including the European Convention on Human Rights, fostered democracy and (capitalist) economic reform in the face of the Communist ‘threat’; see Tony Judt, Postwar. A History of Europe since 1945 (Penguin 2005) pt I. 14 See Natascha Zaun, EU Asylum Policies (Palgrave 2017). 15 See Gallya Lahav, Immigration and Politics in the New Europe (CUP 2004) ch 5; and Eiko Thielemann and Natascha Zaun, ‘Escaping Populism: Safeguarding Minority Rights’ (2018) 56 JCMS 906. 16 See ch 2.3.6; and Andrew Geddes, The Politics of Migration and Immigration in Europe (1st edn, Sage 2003) 144. 17 See Florian Trauner and Ariadna Ripoll Servent, ‘The Communitarization of the Area of Freedom, Security and Justice’ (2016) 54 JCMS 1417. 18 See Saskia Bonjour, Ariadna Ripoll Servent, and Eiko Thielemann, ‘Beyond Venue Shopping and Liberal Constraint’ (2017) 25 JEPP 409.

46 Institutional Prerogatives and Decision-making important safeguards for individuals. They will be described in Chapters 14 and 15. In the field of asylum, the Parliament prioritised internal procedural safeguards, including for vulnerable groups, while being more lenient when it came to border controls. EU asylum policy can be described as a combination of liberal internal rules and external closure, as explained in Chapter 13.1 on asylum. Recent emphasis on the external dimension, described in Chapter 18, can be conceptualised as a remake of ‘venue-shopping’. Cooperation with third states provides an avenue to bypass internal constraints.

2.1.3 From ‘permissive consensus’ to ‘constraining dissensus’ European integration depends—much more than the nation-state—on the law and judges to ensure the effective realisation of common policies, since political mechanisms and administrative capabilities for conflict resolution and rapid response are less developed. Joseph Weiler famously described the formula for success of the supranational integration method as a dichotomy between enhanced legal supranationalism and limited political integration.19 EU integration prospered not despite but because of consensual decision- making, which allowed governments to keep a grip on the policy output: the move towards qualified majority voting did not fundamentally reverse the situation as a result of the prevailing consensus culture in line with subsequent comments. A standard explanation for the success of the EU has been described as ‘permissive consensus’: citizens generally agreed with the integration process but did not care much about the policy output; the EU dealt with critical structural questions and left the salient ‘bread and butter’ topics to the Member States.20 Low participation rates in European elections, combined with the visibility of domestic matters during the election campaign, embody a largely depoliticised integration process. Decisions were taken behind the closed door of the diplomatic negotiation room, where inter-state bargaining took place and a technocratic style of argumentation prevailed. Until this day, the strength of the EU institutions is the search for compromise on the basis of a permanent ‘grand coalition’ of political movements and national interests.21 For many years, EU migration policy was defined by a relatively low degree of public attention, which supported moderately liberal policy outcomes, notwithstanding sceptical public opinion.22 It is a defining feature of European politics that the ‘permissive consensus’ has given way to a ‘constraining dissensus’.23 Important areas of decision-making have become what political scientists refer to as salient issues which define the party-political contest and feature prominently in the public debate.24 This trend had been in the making since the Treaty of Maastricht, when it first became apparent that the EU institutions dealt with questions involving value judgments or having redistributive effects. The euro crisis of the early 2010s and the peak of asylum applications during 2015/16 reinforced the politicisation of EU 19 See Joseph HH Weiler, ‘The Transformation of Europe’ (1990/91) 100 Yale LJ 2403, 2410–31. 20 See Stuart Scheingold and Leon N Lindberg, Europe’s Would-Be Polity (Prentice-Hall 1970). 21 See Giandomenico Majone, Dilemmas of European Integration (OUP 2005); and Marco Dani, ‘Rehabilitating Social Conflicts in European Public Law’ (2012) 18 ELJ 621, 628–32. 22 See ch 4.2.3. 23 Liesbet Hooghe and Gary Marks, ‘A Postfunctionalist Theory of European Integration’ (2009) 39 Brit J Pol Sci 1. 24 cf Andrew Moravcsik, ‘In Defence of the “Democratic Deficit”’ (2002) 40 JCMS 603.

Driving Forces behind Europeanisation 47 affairs generally and migration specifically.25 Citizens are concerned with what they perceive, rightly or wrongly, as the impact of migration on collective identities, the labour market, or public services; moreover, migration often serves as a projection sphere for wider unease at globalisation.26 Anyone following the discourse on EU migration policy will realise an inbuilt asymmetry between numbers and public attention. In quantitative terms, most migration occurs legally, with third country nationals entering as tourists, workers, family members, or otherwise. Nevertheless, public attention has focused on asylum following 2015/16. The interdisciplinary Chapter 4.2.3 and 4.3.3 will explain that the use of semantic framing such as ‘smuggling’ or quasi-natural metaphors like ‘wave’ or ‘flow’ reinforce the impression that states have lost control. Interdisciplinary research acknowledges that such governance deficits, real or perceived, force political actors to concentrate on countering the impression that migration policies are out of control.

2.1.4 The danger of institutional blockage Increased politicisation is particularly worrying for the EU. Politicisation does not only, like in the nation state, affect the policy outcome in line with empirical findings that politicisation will usually result in more restrictive migration policies.27 Political salience of migratory movements has repercussions for the ability of the EU institutions to agree on the way forward. Politicisation weakens the weight of the supranational institutions and can harden governmental positions, thus complicating policy reform. Asylum is a case in point. For many years, classic destination countries in Western and Northern Europe had dominated decision-making, since they cared more about the draft legislation and had the technical experience on how to organise asylum systems.28 States in Southern Europe initially took a lesser interest due to lower numbers, widespread informality, and a lack of experience as destination countries.29 ‘New’ Member States in Central and Eastern Europe were obliged to transpose supranational rules whose contents they had not influenced effectively before or after enlargement.30 Events in recent years have changed this overall setting profoundly. Member States which may have followed decision-making rather passively in the past started showing a genuine interest—as the activities of the Visegrád countries illustrate. The second phase of asylum policy harmonisation during the early 2010s saw a confrontation of Northern and Southern governments on the contents of the Dublin III Regulation, which, as a result of the disputes, continued existing rules path-dependently instead of addressing the structural weaknesses of the Common European Asylum System.31 Reform proposals 25 See Giandomenico Majone, Rethinking the Union of Europe Post-Crisis (CUP 2014); and Edgar Grande, Tobias Schwarzbözl, and Matthias Fatke, ‘Politicizing Immigration in Western Europe’ (2019) 26 JEPP 1444. 26 To recognise the elements of perception and projection does not unmake the political effects. 27 See Marc Howard, The Politics of Citizenship in Europe (CUP 2009) ch 3; and Rhonda Givens and Adam Luedtke, ‘The Politics of European Union Immigration Policy’ (2004) 32 Policy Stud J 145. 28 See Zaun (n 14). 29 See Andrew Geddes and Peter Scholten, The Politics of Migration and Immigration in Europe (2nd edn, Sage 2016) chs 8, 10. 30 See Rosemary Byrne, Gregor Noll, and Jens Vedsted-Hansen, ‘Understanding the Crisis of Refugee Law’ (2020) 33 Leiden J Intl L 871, 881–88. 31 See ch 13.1.3 and 13.3.2.

48 Institutional Prerogatives and Decision-making of 2016 and 2020 have been blocked despite desperate efforts to find a compromise. EU institutions appear unable to broker a compromise between juxtaposing interests, which are hardened as a result of public scrutiny. Note that the underlying danger of impasse differs between policy fields. While asylum is the prime example of politicisation rendering legislative reform difficult if not impossible, other rules will rarely feature in the public debate. Databases, visa requirements, or cooperation with third states may be highly relevant for expert analyses but they do not usually become salient in the democratic contest. With regard to these subject matters, EU institutions can continue what they have traditionally done with great success: search for compromise packages among different actors, interests, and values on the basis of a technocratic style of argumentation. The situation can be different for migrant integration, family reunification, and economic migration, which interrelate with redistributive social policies or debates about collective identities, including the role of Islam. It is no coincidence that the level of ambition of the supranational legislation on economic migration and integration was cut back considerably by the Member States. Rumour has it that the Commission has refrained from proposing a revision of the Family Reunification Directive, since it does not want to provide national governments with an opportunity to insist on stricter conditions during the negotiations.32 Directive 2003/86/EC has not been amended ever since its adoption almost thirty years ago. Denial of legislative change can be an instrument to forestall toxic debates about migration, even though it is problematic from the perspective of democratic theory if statutory rules are effectively set in stone.33 A defining feature was the appearance of populist parties, which employ migration as a strategic tool to mobilise and extend their support base. The campaign leading up to the Brexit referendum, hostility towards relocation of asylum applicants by the Visegrád countries, disputes about search and rescue, and mobilisation against family reunification with spouses from Muslim countries are prime examples of how populist and right-wing parties at the domestic level have an indirect impact on supranational decision-making. Such policy entrepreneurs frame the policy debate, often through wrong or exaggerated claims.34 Divisive topics dominate the public discourse and leave the public opinion with the impression that governments have lost control and that migration has primarily negative repercussions for European societies. The resulting scenario can be dangerous for the European Union, whose legitimacy has traditionally rested on the ‘output’ of successfully policies, not on the ‘input’ of strong democratic credentials.35 The track record in problem-solving capacities is not replicated in all areas of migration policy nowadays. Visibility of the failure to reform asylum legislation, in particular, threatens to become a stigma. In a worst-case scenario, popular contestation could result in a vicious circle of further politicisation preventing the necessary

32 Various governments, not least from the Netherlands, have called upon the Commission to table a proposal for legislative reform. 33 That limitation is rarely described as a deficit in the field of migration, unlike in monetary union; see Catherine Colliot-Thélène, ‘What Europe Does to Citizenship’ in Damian Chalmers and others (eds), The End of the Eurocrats’ Dream (CUP 2016) 127. 34 See Vladislava Stoyanova and Stijn Smet (eds), Migrants’ Rights, Populism and Legal Resilience in Europe (CUP 2022). 35 See generally Fritz Scharpf, Governing in Europe (OUP 1999).

Influence on the Policy Output 49 reform. Institutional blockage might reinforce, in turn, unease at output deficits and render the policy debate even more toxic.36

2.2 Influence on the Policy Output Public debates occasionally use ‘Brussels’ as a synonym for EU politics. That is appropriate insofar as the institutions are essential for the European project. They provide the organisational infrastructure for the design of common rules and supported gradual expansion to ever more subject areas. Awareness of institutional idiosyncrasies and everyday practices is essential for anyone studying the evolution of European migration law. The outlook of supranational actors is defined by entrenched organisational patterns and a distinct ‘institutional culture’.37 Our comments begin with the unique position of the Commission in terms of agenda-setting and supervision (2.2.1), which occasionally compete with the strategic vision of heads of state or government in the European Council (2.2.2). Meetings of national ministers and their staff within the Council and preparatory bodies are the epicentre of political decision-making (2.2.3), notwithstanding the essential role of the European Parliament as a counterweight (2.2.4).

2.2.1 Commission The Commission is commonly described as the ‘motor of integration’, together with the Court of Justice. Political scientists emphasise that its ‘agenda-setting’ function gives the Commission considerable influence over the conceptual design and the legislative detail; the Council and the European Parliament will not usually reverse the structure of the Commission’s proposals fundamentally. The legal foundation of the agenda-setting power is the monopoly of initiative for new legislation.38 The Commission has traditionally used this monopoly skilfully by presenting itself as the source of technical expertise and as a repository of knowledge.

2.2.1.1 Civil servants between expertise and politics Human resources are the backbone of the influence. The Commission comprises the college of Commissioners and more than 30,000 civil servants working for various Directorates General (DGs). Although the college habitually encompasses one person per Member State, Commissioners are fully independent in the exercise of their function and do not represent ‘their’ country.39 Independence and a commitment to ‘promote the general interest of the Union’40 are firmly embedded in the institutional ethos. Recent years have seen an internal reorganisation: the President has gained influence, and several Vice Presidents 36 See Daniel Thym, ‘The “Refugee Crisis” as a Challenge of Legal Design and Institutional Legitimacy’ (2016) 53 CML Rev 1545, 1571–72. 37 On theoretical models see Peter A Hall and Rosemary CR Taylor, ‘Political Science and the Three New Institutionalisms’ (1995) 44 Political Studies 936. 38 See TEU, art 17(2); in justice and home affairs, it gained this monopoly five years after the entry into force of the Treaty of Amsterdam in most subject areas. 39 ibid art 17(3). 40 ibid art 17(1).

50 Institutional Prerogatives and Decision-making coordinate the work of the portfolios on related themes. One Commissioner oversees DG HOME, which serves as an embryonic interior ministry. She will not, however, direct migration policy single-handedly. Decisions are taken by the college as a whole, if necessary by majority. The influence of individual Commissioners is based on political skills, the power of persuasion, and an edge in information. Commissioners depend on the input of civil servants who are generally well-trained, speak different languages, and are defined by a supranational ethos and a broadly cosmopolitan worldview.41 They harbour the knowledge base and the technical expertise, thus exercising considerable influence on the contents of legislative proposals. Even so, the thematic scope of migration law exerts pressure on the supranational bureaucracy, which constantly has to design new proposals on diverse subject matters, while keeping an oversight of existing policies and supporting effective implementation.42 Protracted compliance deficits, notably in the field of asylum, indicate that the Commission does not always live up to this challenge effectively. Indeed, supervision of the correct implementation is a critical function, which is often referred to as the ‘guardian of the Treaties’. The sharpest instruments are infringement proceedings, which have been used discreetly on migratory matters—notwithstanding prominent proceedings against Hungary outlined in Chapter 3.3.2. As an additional instrument, agencies and financial support can foster compliance. While the Commission plays a prominent role in allocating the budgetary funds, it cannot usually decide autonomously how to spend money.43 Agencies like Frontex and the Asylum Office, discussed in Chapter 8, are similarly not direct subsidiaries; they are controlled by an executive board in which Member States decide jointly with the Commission.

2.2.1.2 Technocratic posture on migration law On the whole, one may hardly describe the Commission as a ‘government’, since it combines political executive powers with administrative functions and shares political leadership with the European Council.44 The institutional ethos is to be an honest broker and an incarnation of the common interest; it often hid political ambitions behind the surface of technical expertise and left strategic guidance to the heads of state or government.45 In recent years, the Commission has struggled to define its role between the tradition as technocratic expert body and the self-declared objective to be ‘very political’.46 The ensuing tension between political ambition and technocratic authority is particularly pronounced in migration law. Increasing politicisation complicates, as we have seen, the accommodation of countervailing interests on the basis of technical expertise alone, as illustrated by the failure to reform asylum legislation. Inspection of previous initiatives demonstrates how the Commission usually responds to politicisation. It may present ambitious proposals at first but adapts when realising that the Council is unwilling to go along. For instance, the Commission changed course with 41 See Hussein Kassim and others, The European Commission of the Twenty-First Century (OUP 2013) chs 2–4. 42 See generally Brigid Laffan, ‘From Policy Entrepreneur to Policy Manager’ (1997) 4 JEPP 422. 43 See ch 7.4. 44 See Deirdre Curtin, Executive Power of the European Union (OUP 2009) chs 4–5. 45 See Philipp Dann, ‘The Political Institutions’ in Armin von Bogdandy and Jürgen Bast (eds), Principles of European Constitutional Law (2nd edn, Hart Publishing 2009) 233, 257–61. 46 Former President Jean-Claude Juncker, ‘Time for Honesty, Unity and Solidarity’ (State of the Union Address, 9 September 2015).

Influence on the Policy Output 51 technocratic pragmatism when Member States flatly rejected a high level of harmonisation for economic migration and refused to approximate the status of long-term residents to that of Union citizens.47 It also stood ready to repeal the original draft legislation and to table new proposals on divisive topics such as family reunification, taking up governmental preferences.48 More recently, it respected red lines when presenting the latest initiative to reform the Dublin system, which abstained from the mandatory relocation of asylum seekers.49 Some may find such realpolitik confusing, with the Commission trimming the sails to the wind. Nevertheless, elasticity suits the traditional function as a ‘motor of integration’. Its priority is to advance the European project.

2.2.2 European Council ‘Summits’ of heads of state or government render the often Byzantine world of the Brussels- based institutions somewhat more accessible. The European Council takes crucial political decisions, mitigates crises, tries—often successfully—to bridge seemingly irreconcilable differences, and responds to unforeseen developments. Doing so corresponds to its function to ‘provide the Union with the necessary impetus’ and to ‘define the general political directions and priorities’.50 Heads of state or government have done so repeatedly ever since their first meeting at The Hague in 1969. Milestones of the integration process were associated with summits in towns across the continent, until Brussels became the regular meeting place. It is convened at least twice a year, although the interval can be much shorter when political events so require. Public visibility of the ‘summits’ corresponds to the political character of the European Council, which only became a formal institution with the Treaty of Lisbon. It does not take formal decisions with the exception of constitutional matters, such as the appointment of top personnel or Treaty change. Such formal decisions require a quasi-unanimous consensus in the sense of no-one disagreeing with the outcome.51 If the European Council deals with legislative files, it does so informally. Involvement of heads of state or government does not prevent the Council from adopting draft legislation by qualified majority in the ordinary legislative procedure. In relations with the other institutions, the European Council remains primus inter pares. Influence stems from the political weight of an intergovernmental consensus, not legal authority. While the other institutions will usually follow the strategic guidance of heads of state or government, they eagerly defend prerogatives in the design of secondary legislation. Latent interinstitutional tensions and occasional turf wars define the Brussels outlook. They can be described positively as an element of horizontal checks and balances.52 Episodes of 47 See ch 1.3.4. 48 See ch 14.1.2; and Georgia Papagianni, Institutional and Policy Dynamics of EU Migration Law (Martinus Nijhoff 2006) 241–45. 49 See ch 13.1.5; and Daniel Thym, ‘Never-Ending Story?’ in Daniel Thym (ed), Reforming the Common European Asylum System (Nomos 2021) 11, 13–15. 50 TEU, art 15(1). 51 See ibid art 15(4) in line with the international practice of formal consensus, notably within the World Trade Organization, which differs from legal unanimity insofar as unanimity commands a positive vote in favour, not the absence of active objection. 52 See Wolfgang Wessels, ‘The European Council’ in Takis Tridimas and Robert Schütze (eds), The Oxford Principles of European Union Law, vol I (OUP 2018) 490.

52 Institutional Prerogatives and Decision-making heightened tensions between the Commission and the European Council, for instance on the level of ambition of the Stockholm Programme,53 usually give way to pragmatic cooperation. To do so is in their mutual interest; one cannot succeed without the other. The Commission will often cede, as we have seen, publicly visible leadership to heads of state or government, while trying to shape the policy substance by using the strength inherent in the technocratic knowledge base. Raising a matter to the level of the European Council can help overcome political deadlock, since it involves a change of perspective. Narrow technical considerations give way to strategic reflection about the direction of the European project, and cross-sectoral compromises may emerge, based on reciprocal give-and-take on diverse subject matters. At the same time, involvement of heads of state or government runs the risk of deepening tensions through clashes at the highest level. It remains a question of diplomatic skills when to engage the institution.

2.2.3 Council Notwithstanding the official description of the Council as the collective of national ministers, the institution has many faces that effectively turn it into a quasi-permanent structure, convening on an almost daily basis in the Justus Lipsius building in Brussels. Ministers will not usually discuss the legislative detail. They leave this job to the numerous preparatory bodies, in which civil servants discuss in depth how to formulate specific articles. In justice and home affairs, there are more than a dozen working parties, doing the essence of the legislative discussions.54

2.2.3.1 The ‘backroom’: working parties of national civil servants Participants in the working parties usually fly to Brussels from national capitals and tend to have a high level of expertise. Anyone participating in the debate learns that technical knowledge plays a critical role and that the standing (and influence) of individual actors mainly depends on the quality of the statements.55 That is not to say that civil servants decide autonomously; they receive instructions from national ministries. Meetings take place behind closed doors, even though some documents can be accessed via the public register of the Council, especially after the adoption of the instrument in question56 (the latest documents are often leaked and can be found online57). Strategic matters are discussed in the ‘Strategic Committee for Immigration, Frontiers and Asylum’ (SCIFA), which supports coherence among the legislative portfolios and can help overcome disputes as a body composed of higher-ranking officials.58 53 See ch 1.2.6. 54 For an updated list see www.consilium.europa.eu/en/council-eu/preparatory-bodies/?filters=2023 (accessed 1 March 2023). 55 The author was a stagiaire with the German Permanent Representation for six months during 2004, in the framework of the Judicial Service Traineeship (Referendariat). 56 See www.consilium.europa.eu/en/documents-publications/public-register (accessed 1 March 2023); I recommend to search via the document number. 57 See www.statewatch.org (accessed 1 March 2023). 58 See ‘Strategic coordination of the work of the Council preparatory bodies in the area of migration’ (Council doc 12516/15, 1 October 2015).

Influence on the Policy Output 53 Working parties report to the Committee of Permanent Representatives (COREPER), which prepares the gatherings of the Justice and Home Affairs Council and serves as a diplomatic clearing house; political disputes are often resolved at COREPER level.59 Some pieces of legislation may never be discussed by ministers in the Council, as they are adopted as ‘A points’ without debate.60 It has become standard practice for the Justice and Home Affairs Council to meet over two days to allow interior ministers to focus on migration and security on one day, while ministers for justice will discuss criminal matters and judicial cooperation the other day.61 Some business has to be coordinated with other Council formations, especially on external relations. Meetings of the ministers and preparatory bodies are coordinated by the Council Presidency, which rotates every six months. By tradition, it serves as an honest broker and exercises little political leadership.62 The Presidency is supported by the Council Secretariat, which, like the Commission’s Directorates General, often plays a critical role behind the scenes.

2.2.3.2 Consensus culture in the shadow of majority voting Transition towards qualified- majority voting featured prominently in several Treaty amendments and finally became ubiquitous in migration law under the Treaty of Lisbon.63 A qualified majority requires a double majority comprising at least 55 per cent of the Member States (i.e. 15 out of 27) which jointly represent at least 65 per cent of the population of the Union.64 The widespread emphasis on majority voting among external observers does not imply, however, that conflictual voting is standard practice. Deliberations in the Council and preparatory bodies are defined, to the contrary, by an entrenched consensus culture. Discussions do not come to a standstill only because the double majority requirement would be met if the Presidency called a formal vote. Negotiations among the Member States habitually strive to take everyone on board.65 Studies of sociological institutionalism inform us that an esprit de corps is essential for internal cohesion and facilitates the resolution of conflicts; new members are socialised with the consensus culture, thus preserving it over time.66 Nevertheless, prevalence of compromise-building does not mean that the constitutional switch towards more qualified majority was irrelevant.67 Empirical studies demonstrate that the behaviour of national representatives changes when they cannot simply block decisions by means of a veto. The ‘shadow of the vote’ renders negotiations more flexible; the Council’s institutional ethos necessitates that one does not insist on minor questions.68 Similarly, there will typically be 59 See Papagianni (n 48) 221–34. 60 See Annex to Council Decision 2009/937/EU adopting the Council’s Rules of Procedure [2009] OJ L325/35, arts 3(6), 19, with later amendments. 61 De facto, there are two sub-formations on justice and home affairs. 62 See Christof Roos, ‘The Council and European Council in EU Justice and Home Affairs Politics’ in Ariadna Ripoll Servent and Florian Trauner (eds), The Routledge Handbook of Justice and Home Affairs Research (Routledge 2018) 421, 427–28. 63 See ch 1.2.4. 64 A blocking majority must include at least four Member States, thus precluding, by way of example, Germany, France, and the Netherlands, which jointly represent 37.4 per cent of the population, from exercising a veto; see TEU, art 16(4). 65 See Fiona Hayes-Renshaw, ‘The Council of Ministers’ in Dermot Hodson and John Peterson (eds), Institutions of the European Union (4th edn, OUP 2017) ch 4. 66 See Jeffrey Lewis, ‘The Janus Face of Brussels’ (2005) 59 IO 937. 67 Do not confuse the generic use of the term ‘consensus’ as an expression for a generally accepted outcome with the formal consensus requirement for decisions of the European Council, discussed previously. 68 See Jonathan Golub, ‘In the Shadow of the Vote?’ (1999) 53 IO 733.

54 Institutional Prerogatives and Decision-making strong pressure to reach a compromise, also on sensitive topics. By way of example, the former Dublin II Regulation (EC) No 343/2003 was adopted because Greece and Italy eventually gave in to a compromise proposal.69 A similar agreement has not emerged on the successor instrument so far, despite years of debate. It is in the nature of negotiations that participants search for allies to increase leverage. Such coalitions are rarely formalised, although special links, common convictions, and shared problems may result in loose formations.70 The Benelux countries, Nordic states, and, more recently, the Visegrád group of Poland, the Czech Republic, Slovakia, and Hungary often presented similar positions, notably on asylum and border controls.71 The influence of Franco-German cooperation has traditionally been based less on common interests than on the ability to find a compromise most Member States could support precisely because both countries often had different preferences to start with.72 Spain, Italy, Greece, Cyprus, and Malta have coordinated their position in light of shared geographic concerns; they even created the label ‘MED5’, mirroring the abbreviation ‘V4’ for the Visegrád countries. Austria, the Netherlands, and Germany were the driving force behind stricter rules on legal migration during the early 2000s. A recurring argument in the debate about controversial legislative proposals says that the Council should abandon the search for compromise and overcome resistance by means of majority vote, as it famously did on 22 September 2015 when ministers agreed on the relocation of asylum seekers from Italy and Greece against the express will of some governments.73 The Court rejected an action of annulment, thus confirming that the prevalent consensus culture is not legally binding.74 Chapter 3.3.2 on infringement proceedings will demonstrate that ‘rogue’ Member States refusing to comply with legislation adopted by qualified majority can be brought to Court, even though EU institutions are ill-equipped, besides the threat of penalty payments under Article 260(2) TFEU, to compel governments to comply with a judgment. That may be the deeper logic behind the consensus culture: promoting compliance with legal obligations prevents the escalation of divisive constitutional conflicts, which might damage the European project.

2.2.4 European Parliament Parliamentarians habitually emphasise that they belong to the sole EU institution with direct democratic legitimacy, since they are elected directly by Union citizens. Over the years, the former ‘assembly’ turned into a veritable legislative powerhouse. In justice and home affairs, it became an equal co-legislature with the Council under the Treaty of Lisbon.75 Parliament’s strength is the careful inspection of Commission proposals. Members of the 69 See ch 13.3.2. 70 See Papagianni (n 48) 204–208. 71 See www.visegradgroup.eu (accessed 1 March 2023). 72 This arguably explains, ex negativo, why a Franco-German proposal will not usually resolve protracted disputes about migration policy nowadays given the sheer diversity of preferences among ever more Member States. 73 See Relocation Decision (EU) 2015/1601, which was adopted against the votes of the Czech Republic, Hungary, Romania, and Slovakia, with Finland abstaining. 74 See ch 13.3.2; and Joined Cases C-643/15 and C-647/15 Slovakia and Hungary v Council EU:C:2017:631, paras 143–50. 75 See ch 1.2.4.

Influence on the Policy Output 55 European Parliament (MEPs) regularly table long list of amendments before entering into interinstitutional negotiations with the Council. Doing so follows the tradition of working parliaments, which, like the US Congress, serve as an institutional counterpart to the government they do not necessarily support.

2.2.4.1 Committees as the ‘engines’ of parliamentary impact The organisational backbone of the Strasbourg-based assembly is the committee structure, which allows MEPs to develop a high level of expertise.76 Draft legislation is discussed in the Committee on Civil Liberties, Justice and Home Affairs (LIBE Committee), whose composition reflects the relative weight of the transnational political groups in the plenary.77 Whereas the election of MEPs takes place at the domestic level, their supranational status is primarily defined by the transnational political groups that dominate the internal organisation. Traditionally, the Christian Democrats (EPP), the Social Democrats (S&D), and the Liberals (now: Renew Europe) have been the three biggest groups, although the elections of 2014 and 2019 saw an increase in the vote for smaller parties and, hence, political fragmentation of the parliamentary work. A particularly powerful figure is the ‘rapporteur’ which the LIBE Committee appoints for each legislative file; she presents the matter to the committee and drafts the legislative report, which forms the basis of interinstitutional negotiations.78 While she cannot force its opinion on other MEPs who ultimately have to approve each proposal for an amendment, the rapporteur exercises sizeable influence. Rapporteurs benefit from superior knowledge, the speakers’ platform, the consensus-building function within the committee, and the privileged role in interinstitutional negotiations. Their weight was further increased, as we shall see, by the move towards informal ‘trilogue’ meetings as the focal point of interinstitutional discussions. 2.2.4.2 Shifting positions on migration law Unlike most national parliaments, the European Parliament does not support the ‘government’. Rather, it forms an opinion of its own and defends it towards the Council and the Commission. On the basis of previous activities, many observers expected that MEPs would insist on more liberal legislation that advances the rights of migrants when MEPs gained co-decision powers in the late 2000s. While this expectation was met in some respects, prominent legislative files, such as the Return Directive, indicated a change of perspective. Increased powers seem to have triggered a shift to the ‘mainstream’, for which several explanations exist. First, earlier legislation, which had been adopted unanimously by the Council, created a path-dependency that MEPs were unable to reverse fundamentally.79 Secondly, co-decision entailed an institutional self-interest in presenting opinions which had a realistic chance to form the basis of an interinstitutional compromise. The prospect of bargaining drove the Parliament towards the centre, in the same way as the Council may have refrained from

76 The main seat is in Strasbourg where it holds at least a monthly period of plenary sessions, while most committee work takes place in Brussels. 77 See Rules of Procedure of the European Parliament, 9th Parliamentary Term, r 209 (February 2020). 78 ibid r 51(2). 79 See Trauner and Ripoll Servent (n 17) 1417–32.

56 Institutional Prerogatives and Decision-making insistence on stringent migration control in anticipation of the Parliament’s position.80 Empirical studies confirmed this hypothesis, especially for members of the social-democrat and the liberal groups.81 Thirdly, elections matter. Composition has changed over the years; centre-left parties lost ground, while right-wing and populist parties gained seats. Since 2014, a stable majority has required a ‘grand coalition’ involving the EPP, which puts a greater emphasis on migration control than the centre left.82 Finally, politicisation and the upsurge of populism contributed to a change of direction, in line with previous comments. MEPs may be less directly involved in public disputes at national and European levels than national parliamentarians, but they are certainly not detached from the views and preferences of the electorate they represent.

2.3 Interinstitutional Practices The Court famously stated that the EU Treaties strive for an ‘institutional balance’, which resembles classic conceptions of the separation of powers, albeit with a distinct European flavour of compromise-prone semantics hinting at an equilibrium.83 The search for compromise is entrenched in the institutional culture in line with previous comments, and it similarly defines interinstitutional relations. An overarching constitutional principle of institutional balance does not supersede, however, more specific procedural provisions in the EU Treaties. This section presents the formal procedures and informal practices of interinstitutional relations. Readers should distinguish the ordinary legislative procedure from Treaty change, which has little relevance to migration law (2.3.1). When it comes to secondary legislation, informal ‘trilogues’ dominate interinstitutional negotiations (2.3.2). Implementing and delegated acts have usually been confined to highly technical matters, unlike in other areas of EU activity (2.3.3), whereas ‘soft law’ has gained some prominence in response to recent policy crises (2.3.4). Notwithstanding far-reaching internal powers, the European Parliament is confronted with legal and practical challenges when supervising international cooperation (2.3.5). Our inspection will conclude with the role of private actors, which have traditionally used ‘Brussels’ as a forum to exercise considerable influence, prior to the politicisation of decision-making (2.3.6).

2.3.1 Treaty change: limited relevance A basic terminological cleavage concerns the distinction between the ‘primary law’ in the EU Treaties and ‘secondary legislation’ adopted by the institutions, on the basis of the Treaties, in the form of directives or regulations. While Treaty amendments follow public 80 See Ariadna Ripoll Servent, ‘The European Parliament in Justice and Home Affairs’ in Ripoll Servent and Trauner, Routledge Handbook (n 62) 385, 388–91. 81 On the late 2000s see Esther Lopatin, ‘The Changing Position of the European Parliament on Irregular Migration and Asylum under Co-decision’ (2013) 51 JCMS 740. 82 See Ripoll Servent (n 80) 389–90. 83 First used by Case 9/56 Meroni EU:C:1958:7: ‘balance of power’.

Interinstitutional Practices 57 international law, the adoption of secondary legislation mirrors domestic law-making. Treaty amendments require unanimity under Article 48 TEU and must be ratified by the Member States, which usually foresee national parliamentary consent (or a referendum). Several constitutional courts have established limits to the transfer of competences. By contrast, secondary legislation is adopted by the European Parliament and the Council, and the Court of Justice serves as the main judicial authority, whereas national parliaments have a marginal role to play. When it comes to migration, most initiatives can be realised without recourse to politically cumbersome Treaty revision. Chapter 1.2.4 explained that the Convention drafting the erstwhile Constitutional Treaty laid down broad competences, which found their way into today’s Articles 77–80 TFEU. The scope of these powers will be discussed in the section on the constitutional foundations at the beginning of the chapters on sectoral policies. We shall see that there are few limitations, since the constitutional caveats in Article 72 and Article 79(4) and (5) TFEU have little impact in practice. Only some initiatives on migratory matters would require Treaty change: in particular the centralisation of administrative decision-making, presented in Chapter 8.2.1 on agencies, and harmonisation of nationality law, mentioned in Chapter 15.7 on integration.

2.3.2 Secondary legislation: prevalence of informal ‘trilogues’ Articles 77–79 TFEU declare that directives and regulations shall be adopted in the ‘ordinary legislative procedure’, which is often referred to under its old name ‘co-decision’. There is no need to grasp the procedural intricacies with two readings in each institution, followed by a ‘conciliation’ phase in accordance with Article 294 TFEU; it is rarely followed through in practice. Compromise-building would be hindered if the European Parliament and the Council were officially obliged to reject the positions of each other by means of formal votes in first and second reading, before finally convening in a conciliation committee to find a middle ground. Moreover, the official course of action would erect an additional hurdle in terms of parliamentary majority requirements.84 Exceptionally, formal adoption of first reading positions may be tempting before elections to ensure continuity of the parliamentary work.85 In regular circumstances, however, the interinstitutional practice concentrates on the ‘trilogue’ format. Trilogues are informal gatherings of representatives of the Commission, the Council, and the European Parliament to reach common accord. They can take place at different stages of the first or second reading, possibly as early as after the LIBE Committee’s vote on the draft report.86 Recourse to informal negotiations can be effective, but it is problematic from a constitutional perspective. Doing so wilfully creates a grey zone where crucial political decisions are taken in the proverbial back room. Trilogues leave the European Parliament’s 84 Rejection or amendment of the Council position by the Parliament at second reading requires ‘a majority of its component members’ under TFEU, art 294(7)(b), (c), ie a positive vote in favour of at least 353 of the 705 MEPs, while the (simple) majority at first or third reading under TFEU, art 294(3), (13) is met whenever more ‘yes’ than ‘no’ votes are cast, ie abstention does not hinder the formation of a majority. 85 On (dis)continuity see Rules of Procedure (n 77) r 240; examples were negotiations on the second generation of asylum legislation. 86 See Rules of Procedure (n 77) r 71; and Joint declaration on practical arrangements for the codecision procedure [2006] OJ C145/5, Nos 11–23.

58 Institutional Prerogatives and Decision-making Rapporteur and the Council Presidency with much influence. Of course, the Parliament and the Council will have to consent to the compromise, but the informality of trilogue meetings gives the agents practical leeway the principals in the Council and the Parliament cannot control effectively.87 Arguably, the veil of obscurity typifying the backroom is one of the reasons explaining the success of the format. There are so many actors trying to influence the legislative process that an informal inner circle can be a value in itself. Negotiations on the recast of the Reception Conditions Directive 2013/33/EU were a rare case of the Council disagreeing with a compromise reached in a trilogue meeting.88

2.3.3 Curtailment of delegated and implementing acts ‘Delegated’ or ‘implementing’ acts play a minor role in EU migration law, also because the European Parliament habitually insists that politically relevant questions are being determined in the ordinary legislative procedure. MEPs successfully challenged an attempt by the Council to sideline co-decision for the subsequent adoption of common minimum lists of safe third countries and countries of origin under the former Asylum Procedures Directive.89 It also convinced the Court to annul a first body of rules on sea border surveillance, which had been agreed upon in a ‘comitology’ procedure by the Commission, in collaboration with a committee of national representatives.90 Annulment led to the adoption of today’s Sea Borders Regulation (EU) No 656/2014 in the ordinary legislative procedure two years later. Delegated and implementing acts play a lesser role in migration than in other policy areas where comitology procedures, involving expert bodies in decision-making, are widely used (and often criticised for lack of transparency).91 ‘Implementing’ acts are defined by the participation of committees of national or private experts, whereas ‘delegated’ acts are adopted by the Commission—or the Council, exceptionally92—without the involvement of other institutions.93 They employ the adjective ‘delegated’ or ‘implementing’ in the official title. The difference to ‘regular’ legislation lies in the decision-making procedure, whereas legal effects in domestic legal orders are the same as for any other supranational legislation. By way of example, implementing acts concern the specification of details for visa stickers, and delegation is used for changes to visa fees or the exceptional reintroduction of visa requirements for countries refusing reciprocal visa-free travel for all Member States.94 Judges rejected a legal challenge by the Commission, which had sought not to be given that politically treacherous task on how to respond to the initial refusal of the US to lift 87 Speaking to government representatives, I was told on serval occasions that deals struck at trilogue meetings can be difficult to oversee; note that the political groups have more influence through ‘shadow rapporteurs’, who participate in trilogue meetings. 88 See ‘State of play and guidance for further work’ (Council doc 5458/19, 21 January 2019). 89 See Case C-133/06 Parliament v Council EU:C:2008:257, with regard to Directive 2005/85/EC, arts 29, 36(3). 90 Case C-355/10 Parliament v Council EU:C:2012:516, paras 68–85 found the rules to modify essential elements of the original Regulation (EC) No 562/2006. 91 See Curtin (n 44) ch 5. 92 Case C-257/01 Commission v Council EU:C:2005:25 confirmed that the Council could reserve details on the visa procedure to a Council decision—the practice was later discontinued. 93 See TFEU, arts 290, 291. 94 See Visa Code Regulation (EC) No 810/2009, as amended by Regulation (EU) 2019/1155, arts 16(9), 27(1), 29(1a).

Interinstitutional Practices 59 visa requirements for some countries in Central and Eastern Europe.95 Rare examples of politically sensitive implementing acts concern sanctions, in the form of disadvantages in the visa procedure, against third states not cooperating on return, which will feature in Chapter 18.3.2 on international cooperation, or the specification of risks underlying the algorithm for the automated assessment of prior travel authorisation under the Article 33 ETIAS Regulation (EU) 2018/1240, which will be presented in Chapter 9 on databases.

2.3.4 Ancillary role of ‘soft law’ ‘Soft law’ is a fascinating subject of study precisely because it is not legally binding. Advantages lie in the flexibility, spontaneity, and additional leverage it gives the Commission, as the main author. Disadvantages include non-transparency, legal uncertainty, and circumvention of decision-making procedures. Non-binding instruments are widely used by the Commission in competition law, economic policy, or state aid. They were celebrated as an alternative form of governance in the early 2000s, although this enthusiasm has given way to nuanced assessments that highlight inbuilt risks and drawbacks.96 Moreover, judges have elaborated on indirect legal effects of soft law, or lack thereof.97 Such informal instruments have traditionally played a marginal role in migration law, before gaining some traction in cooperation with third states, during the Covid-19 pandemic, and in response to the policy crisis of 2015/16. At an intermediate level, we may distinguish three forms of soft law. First are formal non-binding recommendations, adopted by the Commission or by the Council, in areas of Union competence in accordance with Article 292 TFEU. Second are informal cooperation frameworks with third states, discussed in Chapter 18.2.2 on international cooperation. Thirdly, Commission communications may contain the legal viewpoint of the supranational executive on how to interpret secondary legislation. Such political communications carry less weight than formal recommendations but may influence national implementation nonetheless. Soft law instruments fulfil different functions. One the one hand, non-binding instruments may complement existing policies as an alternative to legally binding measures. Such substitution effect is particularly widespread in cooperation with third states, notably in the form of informal return arrangements or non-binding mobility partnerships. One step further, soft law can prepare the ground for the adoption of legislation later on. Chapter 13.10 will demonstrate that Commission Recommendations on resettlement served as tentative steps towards common action in the form of the Proposal for a Resettlement Framework Regulation. On the other hand, soft law instruments seek to influence the interpretation of legislation. Measures may include profane issues of everyday application, including a summary of the case law, notably in the form of the ‘Schengen Handbook’ and the ‘Return Handbook’, 95 See ch 12.2.3; and Case C-88/14 Commission v Parliament and Council EU:C:2015:499. 96 See Mark Dawson, ‘Three Waves of New Governance in the European Union’ (2011) 37 EL Rev 208; and Kenneth Armstrong, ‘New Governance and the European Union’ in Gráinne de Búrca and others (eds), Critical Perspectives on Global Governance (Hart Publishing 2013) 249. 97 See Federico Casolari, ‘The Unbearable “Lightness” of Soft Law’ in Francesca Ippolito and others (eds), Bilateral Relations in the Mediterranean (Edward Elgar Publishing 2020) 215, 216–17.

60 Institutional Prerogatives and Decision-making which contain useful information for national officials.98 Other initiatives go beyond codification and seek proactively to shape how national authorities, and possibly courts, handle existing rules. Such efforts to mould the interpretation of legislation informally are not legally binding but can be practically relevant, nonetheless; they were mentioned by the Court on at least one occasion, as a supplementary argument to support a specific conclusion.99 Prominent examples include a dynamic reading of the conditions for reintroducing internal border controls, discussed in Chapter 12.4.2, and of the ‘risk of absconding’ under the Return Directive, mentioned in Chapter 16.7.2. A notorious example of soft law transforming secondary legislation was the unprecedented external travel ban for third country nationals during the Covid-19 pandemic, which was emulated two years later when the Baltic States and Finland, in particular, effectively closed their borders to Russians during the armed attack against Ukraine.100 The travel ban during the pandemic illustrated the advantages and drawbacks of soft law exemplarily.101 The main benefit was spontaneity and flexibility. A first short Commission Communication was written in haste and could be adapted easily by means of follow-up documents in the weeks thereafter.102 The travel ban was formalised somewhat when the Council adopted a recommendation, updated regularly, to define countries covered by the entry ban.103 None of these measures was legally binding, but they seem to have been reasonably successful in coordinating national practices applying the Schengen Borders Code Regulation (EU) 2016/399. Nevertheless, the downside was obvious. The most drastic travel restrictions in the history of the Schengen area were decided informally on shaky legal grounds without parliamentary involvement. Important questions, such as the status of non-married partners of Union citizens, were left unaddressed. Travel bans by means of soft law are no model for accountable rule-making. It should be welcome, therefore, that the Commission proposed to formally introduce legally binding implementing acts on travel bans.104

2.3.5 International cooperation: side-effects of informalisation Parliamentary prerogatives with regard to international agreements on migratory matters are comparatively strong on paper but much weaker in practice. Diplomatic negotiations and the spread of informal arrangements diminish the Parliament’s authority. To start with, procedures for the conclusion of legally binding agreements in Article 218 TFEU deviate from the ordinary legislative procedure. Negotiations will usually be conducted by the Commission, cooperating closely with the Council, which may adopt negotiating 98 See Commission Recommendation (EU) 2017/2338 establishing a common ‘Return Handbook’ [2017] OJ L339/83; and Commission Recommendation establishing a common ‘Practical Handbook for Border Guards’ (C(2019) 7131, 8 October 2019), which both replaced earlier versions. 99 See Case C-635/17 E EU:C:2019:192, paras 63–69. 100 See Commission, ‘Commission: 1. Updating guidelines on general visa issuance in relation to Russian applicants; and 2. Guidelines on controls of Russian citizens at the external borders’ (C(2022) 7111, 30 September 2022). 101 See further Daniel Thym and Jonas Bornemann, ‘Schengen and Free Movement Law during the First Phase of the Covid-19 Pandemic’ (2020) 5 European Papers 1143, 1155–61. 102 See Commission, ‘Communication: COVID-19. Temporary restriction on non-essential travel to the EU’ COM(2020) 115 final, and follow-up documents. 103 See Council Recommendation (EU) 2020/912 on the temporary restriction on non-essential travel into the EU [2020] OJ C208I/1, and follow-up documents. 104 See Proposal for a Regulation amending the Schengen Borders Code, COM(2021) 891 final, art 21a.

Interinstitutional Practices 61 guidelines.105 By contrast, the European Parliament shall merely be ‘immediately and fully informed’.106 MEPs do not have a direct say on the EU’s position, let alone a seat at the negotiating table. They can, at most, exercise influence during the negotiations with the threat of non-ratification—a nuclear option that cannot be used extensively.107 To be sure, the end result requires ratification,108 but this leaves Parliament with a binary choice either to approve or reject an agreement which has been negotiated by others. The spread of informal cooperation frameworks and non-binding working arrangements with third states, discussed in Chapter 18.2.2 on the external dimension, further undermines the Parliament’s role. While informal collaboration has always existed at the international level and can serve legitimate functions, the extent of contemporary informal practices on migration is problematic from an institutional perspective. Judges confirmed that informal cooperation must emanate from supranational competences and that the Commission may represent the Union, subject to a political mandate by the Council defining essential aspects of the EU’s position.109 By contrast, MEPs are sidelined, although proposals for dynamic interpretation have been put forward by scholars.110 Moreover, Parliament may possibly create leverage by means of issue linkage, by politically connecting informal cooperation to legislative files subject to co-decision.111 For the time being, however, external migration governance remains by and large the domain of the executive. It allows political actors to circumvent institutional constraints that would exist internally.

2.3.6 Private actors: a democratic virtue for migration law? Union law has traditionally revolved around technical matters. This gave private actors an important role, for instance via expert committees designing implementing acts. The Commission’s self-perception as an expert body drawing authority from a sizeable knowledge base further enhanced symbiotic relations with private actors providing valuable input. As an expression of ‘better law-making’, the Commission committed to perform stakeholder consultations and to present impact assessments.112 Corresponding material can be found in ‘Staff Working Documents’ (SWDs) accompanying the official explanatory memorandum of the Commission’s legislative proposals.113 Private actors have traditionally

105 See TFEU, art 218(2)–(4). 106 ibid art 218(10). 107 See Christina Eckes, ‘External Relations Law’ in Diego Acosta Arcarazo and Cian C Murphy (eds), EU Security and Justice Law (Hart Publishing 2014) 186, 190–93. 108 See TFEU, art 218(6)(a)(v), read in conjunction with arts 77–79. 109 Case C-660/13 Council v Commission EU:C:2016:616, paras 36ff had recourse to TEU, arts 16–17, not the provision on Treaty negotiations in TFEU, art 218. 110 See Paula García Andrade, ‘The Duty of Cooperation in the External Dimension of the EU Migration Policy’ in Sergio Carrera and others (eds), EU External Migration Policies in an Era of Global Mobilities (Brill 2019) 299, 317. 111 See Tineke Strik, ‘The European Parliament’ in Paul Minderhoud and others (eds), Caught in Between Borders (Wolf 2019) 279, 285–89. 112 See Interinstitutional Agreement on better law-making [2016] OJ L123/1, Nos 12–19, saying that impact assessments are not mandatory. 113 Semi-official SWDs often supplement official proposals in ‘COM’ documents, adopted by the college of Commissioners; both can be retrieved via https://eur-lex.europa.eu/collection/eu-law/pre-acts.html (accessed 1 March 2023).

62 Institutional Prerogatives and Decision-making held much influence in the depoliticised environment of supranational law-making, even though it cannot be measured exactly. For our purposes, the diversity of private actors stands out. While experts in migration law will intuitively think of NGOs, multinational companies and industry associations are at least as active in Brussels. Stakeholder participation and informal contacts often amount to classic ‘lobbying’ by actors with substantial resources and leverage. By contrast, NGOs— like any other civil society organisation114—struggle with lesser funding and were originally newcomers to the supranational arena; professionalisation was a precondition for visibility and influence.115 A well-known success story is the European Council on Refugees and Exiles (ECRE), which brings together more than 100 organisations from across the continent. However, NGOs are not the only players. Trade unions and employer organisations influence debates on labour migration,116 private companies participate in discussions about border surveillance, and profit-oriented consulting companies compete for large research and evaluation studies.117 Involvement of private actors in decision-making can be conceptualised in different ways. One strand of the debate emphasises stakeholder participation as a valuable source of information that may improve the quality of legislation and facilitate compliance. These arguments gained momentum in the early 2000s, thus informing the introduction of today’s Article 11 TEU on stakeholder consultation and the Commission White Paper on European Governance.118 The underlying theoretical model of ‘deliberative democracy’ often goes hand in hand with an interest in new forms of decision-making, such as the ‘open method of cooperation’ (OMC) or private law-making, which play virtually no role in the field of migration. Having said this, stakeholder consultation can be of theoretical relevance, as third country nationals have no right to vote and depend on others, therefore, to represent their interests in the legislative process.119 Another strand of the debate emphasises the uncertain conceptual foundations of stakeholder participation between classic notions of information gathering and novel visions of deliberative democratic legitimacy.120 Such less enthusiastic views of private actors seem to have gained ground in recent years.121 Social scientists emphasise the ambivalence of their internal accountability and political legitimacy, as well as the danger of sidelining other forms of political agency and protest.122 While NGOs are rightly proud of their altruistic stance, profit-oriented consulting companies are in a different position—let alone private companies competing for contracts on technological border surveillance. Critical scholars

114 The meaning of ‘NGO’ and ‘civil society organisations’ does not follow clear terminology and differs between countries; this book generally employs the term NGO. 115 See Emily Gray and Paul Statham, ‘Becoming European?’ (2005) 43 JCMS 877. 116 See Georg Menz, The Political Economy of Managed Migration (OUP 2008). 117 See Oleg Korneev and Olga Kluczewska, ‘The Globalised Third Sector in the Migration Policy Field’ in Anna Triandafyllidou (ed), Handbook of Migration and Globalisation (Edward Elgar Publishing 2018) 54. 118 See Commission, ‘European Governance. A White Paper’ COM(2001) 428 final. 119 See generally Alexander Somek, ‘The Darling Dogma of Bourgeois Europeanists’ (2014) 20 ELJ 688. 120 See Christoph Möllers, ‘European Governance’ (2006) 43 CML Rev 313. 121 See Mark Dawson, ‘Better Regulation and the Future of EU Regulatory Law and Politics’ (2016) 53 CML Rev 1209. 122 See Meike Rodekamp, Their Members’ Voice (Springer 2014); and David Kennedy, The Dark Sides of Virtue (Princeton UP 2004) ch 1.

Differentiated Integration: Opt-outs after Brexit 63 emphasise that the Commission, in particular, participates in the production of the knowledge that forms the basis of its activities.123 Empirical studies have found that private actors were quite successful in the early years of supranational justice and home affairs cooperation, thereby countering the effects of ‘venue shopping’ of interior ministries, discussed previously, which had employed transnational cooperation to bypass domestic constraints. Private actors were particularly influential when their input was taken up by political actors within the institutions, which channelled the views of NGOs and others into the interinstitutional deliberations.124 By contrast, the increasing politicisation of decision-making on migratory matters seems to have limited their impact. Non-state actors are more influential when technical arguments dominate the agenda.

2.4 Differentiated Integration: Opt-outs after Brexit An institutional idiosyncrasy of justice and home affairs are country-specific opt-outs, which are often described as an expression of ‘multiple speeds’, ‘variable geometry’, integration ‘à la carte’, or ‘coalitions of the willing’.125 Schengen remains, together with monetary union, the most prominent example of differentiated integration. The opt-outs discussed below do not embody a generic model of differentiated integration. They resulted from political compromises, enshrined at Treaty level, to secure unanimous consent to Treaty revision.126 In areas not covered by the opt-outs, all Member States participate in legislative initiatives, which can be adopted by qualified majority against their will. The possibility of ‘enhanced cooperation’ exists on paper but is rarely used in practice.127 To date, the option of enhanced cooperation has not been activated for a single new initiative on the basis of Articles 77–80 TFEU. As a result of Brexit, the opt-outs lost significance, although they remain intact for Ireland and Denmark. The position of the UK is governed by international agreements nowadays, to be mentioned in Chapter 17.3 on association agreements. Unfortunately, the opt-outs do not follow a uniform rationale and are defined by heightened complexity. We need to distinguish arrangements for Denmark (2.4.1) and Ireland (2.4.2). Moreover, we are faced with two sets of rules for each country: first, measures building upon the Schengen acquis, whose scope will be elaborated upon in Chapter 12.3.3 on border controls; secondly, justice and home affairs beyond the thematic scope of Schengen. Altogether, we need to distinguish four distinct opt-out scenarios for Ireland and Denmark on the one hand and for measures (not) belonging to the Schengen framework on the other hand.128 In practical terms, 123 See Christina Boswell, The Political Uses of Expert Knowledge. Immigration Policy and Social Research (CUP 2009) ch 8. 124 See Christian Kaunert, Sarah Léonard, and Ulrike Hoffmann, ‘Venue-Shopping and the Role of Non- Governmental Organisations in the Development of the European Union Asylum Policy’ (2013) 1 Comp Migration Stud 179; and Georg Menz, ‘Stopping, Shaping and Moulding Europe’ (2011) 49 JCMS 437. 125 See Daniel Thym, ‘Supranational Differentiation and Enhanced Cooperation’ in Tridimas and Schütze, Oxford Principles (n 52) 848–55, which forms the basis of the comments in this section. 126 In accordance with TEU, art 51, protocols attached to the Treaties, such as those on the opt-outs, form an integral part of primary law. 127 See ibid art 20; TFEU, arts 326–34. 128 Allegedly, two working groups designed the rules and forgot to align their substance; see Pieter Jan Kuijper, ‘Some Legal Problems Associated with the Communitarization of Policy on Visas, Asylum and Immigration’ (2000) 37 CML Rev 345, 352.

64 Institutional Prerogatives and Decision-making recitals indicate whether Ireland and Denmark are bound and whether the legislation belongs to the Schengen acquis.

2.4.1 Denmark: the long shadow of the referenda Denmark did not object to the abolition of border controls and had subscribed to the Convention Implementing the Schengen Agreement prior to the Treaty of Amsterdam. Nonetheless, the government asked for an opt-out, since supranationalisation called into question compromise formulae the Danish government had relied upon in the campaign for a ‘yes’ vote in the second referendum on the Treaty of Maastricht.129 At the same time, Denmark did not want to leave Schengen and negotiated a ‘political opt-in’ in combination with a ‘legal opt-out’.130 Denmark remained a Schengen member without subscribing to supranationalisation. Unlike Ireland, Denmark cannot opt in to decision-making case by case, even though it could switch to the more flexible Irish position. Doing so has been made politically conditional on another referendum. The government called—and lost— such a referendum in late 2015.131 In line with the original compromise, Denmark participates in new measures that are building upon the Schengen acquis on the basis of ‘an obligation under international law’.132 This peculiar construction entails that the Court has no jurisdiction and that general principles, such as direct effect and supremacy, do not apply. Moreover, Denmark retains the theoretical option not to implement new legislation. In return, partner countries will ‘consider appropriate measures to be taken’, thus possibly triggering the exclusion from Schengen.133 In practice, collaboration has unfolded without major hiccups so far.134 Reasons for the trouble-free performance include the participation of Danish officials, albeit without a vote, in Council deliberations, close cooperation with neighbouring countries, and the tradition of border-free travel among the Nordic countries, which equally participate in Schengen.135 The Danish opt-out presents itself as an historic relict perpetuating the compromise for the ratification of the Treaty of Maastricht. Rejection of the supranational integration method means that Denmark cannot, on the basis of the present opt-out, participate in measures transcending the Schengen framework. By way of example, Danish rules on family reunification can be stricter than under the Family Reunification Directive 2003/86/EC, and the country does not contribute to solidarity measures, such as the 2015 Relocation Decisions, which were considered not

129 See David Howarth, ‘The Compromise on Denmark and the Treaty on European Union’ (1994) 31 CML Rev 765. 130 Monica den Boer, ‘Justice and Home Affairs Cooperation in the Treaty on European Union’ (1997) 4 MJECL 310, 311. 131 See Protocol [No 22] on the position of Denmark [2008] OJ C115/299, arts 7 and 8, which replaced an earlier protocol [1997] OJ C340/299; and https://en.wikipedia.org/wiki/2015_Danish_European_Union_opt-out_ref erendum (accessed 1 March 2023). 132 ibid art 4(1). 133 ibid art 4(2); and Daniel Thym, Ungleichzeitigkeit und Europäisches Verfassungsrecht (Nomos 2004) 110–14 http://www.ungleichzeitigkeit.de (accessed 1 March 2023). 134 In 2011, the Danish government announced plans to reintroduce limited permanent border controls at the insistence of the populist peoples’ party; however, the project was abandoned when the general elections in 2012 brought a different government into power. 135 See Thym (n 125) 876–78.

Differentiated Integration: Opt-outs after Brexit 65 to build on the Schengen acquis. Nevertheless, Denmark was associated with the Dublin acquis in the form of an international agreement.136 Indirect participating via international agreements is legally problematic in light of a judgment, concerning Gibraltar, that low- threshold intergovernmental cooperation should not evade formal participation under the opt-out protocols.137 Politically, EU institutions were willing to associate Denmark in light of the political peculiarities underlying the opt-out. Note that the association agreement is confined to the Dublin III Regulation (EU) No 604/2013 and the Eurodac Regulation (EU) No 603/2013, as well as any successor instruments in accordance with the procedure set out in Article 3. By contrast, Denmark is not bound by other asylum instruments, such as the Asylum Procedures Directive 2013/32/ EU or the Qualification Directive 2011/95/EU. This entails that it can proceed, subject to human rights law, with controversial projects for the external processing of asylum applications in third states, which would be illegal under EU legislation.138 References to the ‘Member States’ in these instruments do not cover Denmark either. As a result, Germany could not reject an asylum application as inadmissible in light of a previous decision in Denmark, irrespective of the level of protection there.139

2.4.2 Ireland: relic of British reticence The Irish position can only be understood against the background of British Euroscepticism, which had always objected—unlike Denmark—to the political project of border-free travel. Consecutive British governments had maintained that the geographical position of an island nation, the traditional absence of domestic identification requirements (ID cards), and the symbolism of Schengen cooperation as an instrument of ‘ever closer union’ argued against British participation.140 Nonetheless, the Labour government under Tony Blair was willing to consent to the integration of the Schengen acquis into the EU framework under the condition that Britain retained a flexible opt-out, including the option voluntarily to sign up to individual projects. Ireland was obliged to follow its neighbour to maintain the Common Travel Area for passport-free travel in the British Isles, including between the Republic and Northern Ireland.141 Ireland may have originally ‘declare[d]‌its firm intention to exercise [the opt-in option] to the maximum extent’,142 but it did not always live up to this promise. Upon closer inspection, the British/Irish opt-out is the most prolific expression of the à la carte logic of a principled freedom. First, both countries retain the right to ‘notify . . . that they wish to take part’ in the adoption of a proposal.143 This option of ex ante participation 136 See the Council Decision 2006/188/EC on the conclusion of the Agreement extending to Denmark the provisions of the former Dublin II Regulation (EC) No 343/2003 [2006] OJ L66/37. 137 See Case C-44/14 Spain v Parliament and Council EU:C:2015:554, paras 30–42. 138 Seech 13.4.7. 139 See Case C-497/21 Bundesrepublik Deutschland EU:C:2022:721, paras 40–51. 140 See Antje Wiener, ‘Forging Flexibility. The British “No” to Schengen’ (1999) 1 EJML 441, 456–59; and House of Lords, ‘Schengen and the United Kingdom’s Border Controls’ (Select Committee, 7th Report, Session 1998/99). 141 See Elaine Fahey, ‘Swimming in a Sea of Law’ (2010) 47 CML Rev 673, 679–82. 142 Declaration (No 56) by Ireland on Article 3 of the Protocol on the position of the United Kingdom and Ireland [2008] OJ C306/268. 143 Protocol [No 19] on the Schengen acquis integrated into the framework of the European Union [2008] OJ C115/290, art 5(1); and its predecessor [1997] OJ C340/93; and Protocol [No 21] on the Position of the United

66 Institutional Prerogatives and Decision-making was used extensively for core asylum legislation and for measures against illegal entry and stay, whereas both countries refused to join legal migration initiatives. In addition, Ireland ‘may at any time request to take part in some or all of the provisions’ of legislative instruments ex post.144 On this basis, both countries subscribed to important segments of the original Schengen cooperation, in particular the Schengen Information System.145 The combined effect of ex ante and ex post participation was constructive, albeit with a focus on control-oriented instruments. Ireland’s freedom of choice is not absolute. The Schengen Protocol limits participation to initiatives which are ‘capable of autonomous application’.146 This meant, in the eyes of the Council, that British requests for membership in Frontex and participation in the Passports and Travel Documents Regulation (EC) No 2252/2004 had to be rejected, since both initiatives were intractably linked to the abolition of internal border controls, to which the UK had refused to sign up.147 The Court of Justice confirmed this standpoint in three judgments demonstrating a certain willingness to ensure that the opt-outs do not result in ‘cherry picking’.148 During the intergovernmental conference drafting the Lisbon Treaty, the British government demanded—and obtained—further flexibility.149 London insisted on the right to opt out of amendments of instruments in whose adoption it had decided to participate.150 Again, Ireland followed its neighbour. By a simple declaration, it may withdraw from ongoing legislative procedures, although it remains bound by the instrument under revision— an option Ireland used for the Asylum Procedures Directive 2013/32/EU,151 while Britain opted out of the Asylum Qualification Directive 2011/95/EU. From the perspective of legal certainty, it is regrettable that Ireland will continue to be bound by previous rules, which are repealed with regard to all other Member States.152 Judges may be asked to interpret provisions applying to Ireland only.153 If the Irish exclude themselves from an amendment, the Council can vote against continued participation in related instruments if such ‘rump’ legislation cannot be applied effectively.154 The example of the dispute over Frontex shows that the Court may side with the Council in cases of conflict. Kingdom and Ireland in respect of the area of freedom, security, and justice [2008] OJ C115/295, art 3(1), which builds upon a previous version [1997] OJ C340/295. 144 ibid art 4. 145 Decision 2002/192 concerning Ireland’s request to take part in some of the provisions of the Schengen acquis [2002] OJ L64/20; together with Council Implementing Decision (EU) 2020/1745 [2020] OJ L393/3; Decision 2009/350/EC [2009] OJ L108/53; as well as Decision 2000/365 concerning the request of the United Kingdom to take part in some of the provisions of the Schengen acquis [2000] OJ L131/43. 146 AG Verica Trstenjak, Opinion in Case C-77/05 United Kingdom v Council EU:C:2007:419, point 107. 147 Legally, both disputes concerned the delimitation of the Schengen Protocol (n 143) arts 4 and 5; as well as rules in Protocol No 21 (n 143), which are more flexible. 148 See ch 13.3.3; Case C-77/05 United Kingdom v Council EU:C:2007:803; Case C-137/05 United Kingdom v Council EU:C:2007:805; Case C-482/08 United Kingdom v Council EU:C:2010:631; and Maria Fletcher, ‘Schengen, the European Court of Justice and Flexibility under the Lisbon Treaty’ (2009) 5 EuConst 71. 149 See European Council, ‘Presidency Conclusions’ (Council doc 11177/1/07, 26 June 2007) No 19(l); and Clemens Ladenburger, ‘Police and Criminal Law in the Treaty of Lisbon’ (2008) 4 EuConst 20, 28. 150 See Schengen Protocol (n 143) art 5(2)–(5); and Protocol No 21 (n 143) art 4a. 151 Contrast Asylum Procedures Directive 2013/32/EU, recital 58 with the former Asylum Procedures Directive 2005/85/EC, recital 33. 152 The repeal of the earlier measure through new legislation does not extend to the Ireland, since it is not bound by the amendment; see also Steve Peers, EU Justice and Home Affairs Law, vol 1 (4th edn, OUP 2016) 29–33. 153 By way of example see Case C-616/19 Minister for Justice and Equality EU:C:2020:1010. 154 See Schengen Protocol (n 143) art 5(3); and Protocol No 21 (n 143) art 4a(2).

Summary 67 The UK stopped being bound by rules it had opted into when the transitional period under the Withdrawal Agreement ended on 1 January 2021. Brexit had a paradoxical effect in the field of migration: even though the desire to ‘take back control’ played a prominent role in the referendum campaign, withdrawal may complicate British migration policies. The UK will no longer participate in the Schengen Information System and the Dublin system. Instead, London may have to pay a political ‘price’ to convince Brussels to join existing initiatives on the basis of an international agreement.155 Negotiations on the Trade and Cooperation Agreement confirmed the reversal of previous policy dynamics when the EU rejected the British demand for the conclusion of a readmission agreement that could have served as a partial replacement for the Dublin system.156 Future relations will be discussed in the chapter on association agreements.

2.5 Summary Institutional provisions have a direct impact on the policy outcome by determining the weight of different actors. Originally, intergovernmental cooperation resulted in ‘venue shopping’, with interior ministries promoting a securitarian agenda on justice and home affairs. Today, the European Parliament serves as an equal co-legislator, besides the Council acting by qualified majority. In this overall context, political scientists examine the relative weight of national interests, normative convictions, and other factors in the construction of European migration law. Inspection of the driving forces helped overcome binary descriptions of reticent Member States insisting on policy restrictions versus supranational institutions supporting the rights of migrants. Justice and home affairs were supranationalised with the support of national governments, and the Council adopted important pieces of legislation unanimously. By contrast, the institutional practice of the Commission, in particular, displays practical elasticity. A critical variable for supranational politics is the degree of politicisation, which has increased in recent years, partly triggered by the resurgence of populism. Politicisation complicates supranational decision-making that has traditionally relied on a technocratic style of reasoning and compromise-building behind closed doors. The ‘permissive consensus’ gradually gave way to a ‘constraining dissensus’ when migration became a salient issue in public discourses at the national and supranational levels. In such an environment, policy outcomes tend to become more restrictive, and the danger of institutional blockage is real (as the example of asylum illustrates). A crucial contextual factor is the ‘institutional culture’, which determines how the relevant actors manage their decision-making prerogatives. EU institutions are complex bodies whose working practices are informed by entrenched patterns of behaviour. This chapter shed light on the ‘black box’ that the everyday functioning of the institutions is to many observers. We aimed to show, in other words, the ‘living constitution’ in the making of migration law. The Commission thrives on the basis of a unique knowledge base in an environment of technocratic decision-making. Its proposals are highly influential, yet it often hides 155 See Daniel Thym, ‘The Irony of Brexit for Immigration Control’ EULawAnalysis (20 October 2017). 156 See Ben Hulme, ‘Analysis of the United Kingdom’s Proposal for a UK-EU Readmission Agreement’ EULawAnalysis (20 August 2020).

68 Institutional Prerogatives and Decision-making behind the political initiatives of heads of state or government meeting within the European Council. The Commission has repeatedly changed course with technocratic pragmatism when it realised that Member States were unwilling to support an initiative. Constant meetings of working groups and other preparatory bodies turn the Council into a quasi- permanent institution, where national officials discuss the proverbial comma of new proposals. Internal deliberations are defined by a deep-rooted culture consensus which tries to take everyone on board. Votes rarely happen, although the option of a majority vote means that Member States are bound to be flexible. As a working assembly, the European Parliament exercises considerable influence via the high level of expertise within the influential LIBE Committee. In contrast to parliamentary democracies, where debates are often defined by conflicts between the government and the opposition, supranational decision-making is characterised by permanent consensus-building and compromise-seeking. This is one of the factors explaining why the majority view appears to have turned towards the ‘mainstream’ to ensure greater impact on the policy outcome, when it finally obtained full co-decision powers under the Treaty of Lisbon. In practice, most legislation is finalised in the secretive ‘trilogue’ format nowadays: representatives of the Parliament, the Council, and the Commission meet behind closed doors to hammer out the final deal. The weight of the European Parliament in the ordinary legislative procedure is an important reason why delegated and implementing acts did not gain much relevance in migration law. By contrast, MEPs hold less sway to influence international agreements concluded with third states, which was weakened further by the spread of informal arrangements. Soft law plays an ancillary—although increasing—role in migration law. It serves as a flexible tool to guide the interpretation of existing rules or to advance new initiatives as a substitute to legally binding measures. Soft law raises concerns over accountability and legal certainty when used on sensitive issues. Private actors have traditionally been powerful in Brussels; they include NGOs, established organisations like trade unions or churches, and profit-seeking consultancy groups or companies applying for valuable contracts. Increasing politicisation arguably undermines the influence non-governmental actors, which depend on institutional actors to take up their views. An inspection of law-making would be incomplete without the country-specific opt-outs of Denmark and Ireland (as well as the UK, before Brexit). They stem from political compromises enshrined at Treaty level and do not establish a general blueprint for ‘multiple speeds’ or ‘coalitions of the willing’. The operation of the opt-outs is defined by an excessive complexity, since we have to distinguish four distinct opt-out scenarios for Ireland and Denmark on the one hand and for measures (not) belonging to the Schengen framework on the other hand. While Denmark participates in Schengen, it cannot join other initiatives. Ireland, by contrast, did not subscribe to the abolition of border controls but participates in various other projects.

3

Court of Justice: Achievements and Limitations The European Union has been described as a ‘lawyers’ paradise’1 to highlight the vital role the law has traditionally played in the construction of the European polity. Judgments of the Court of Justice are an essential point of reference for legal practice and academic analyses, and they are a central theme of this volume. Reference to the ‘limitations’ in the title of this chapter does not question the pivotal role of the Court in Luxembourg. Rather, we intend to draw attention to contextual factors that define the success in terms of guiding the uniform interpretation and application of EU migration law. A statistical survey of all judgments interpreting the legislation discussed in this volume will demonstrate, together with other considerations, the relative weight of different procedural avenues, pertinent actors, and subject matters. In doing so, our comments will combine the procedural basics with a critical inspection of the judicial practice. Our analysis begins with the influence of the court architecture, such as the option of specialised tribunals to oversee Frontex and the Asylum Office (3.1). Notwithstanding the track record of dynamic interpretation on constitutional matters, a bird’s eye view on the judgments on migration will demonstrate an upsurge in statutory interpretation focusing on the outcome of the legislative process (3.2). Institutional practices are critical for anyone trying to understand access to justice. While infringement proceedings and validity disputes play a secondary role in migration law, preliminary references by domestic courts are, statistically and conceptually, the hallmark of the Court’s profile (3.3). Protracted compliance deficits in asylum and border controls indicate that the control function should not depend on judges alone. This chapter will conclude with alternative accountability fora that may support respect for supranational rules (3.4).

3.1 Influence of the Court Architecture English language literature fluctuates between the classic abbreviation ‘ECJ’ and the comparatively new ‘CJEU’, which responds to the change in the official designation from ‘Court of Justice’ to ‘Court of Justice of the European Union’ under the Treaty of Lisbon. Crucially, this volume does not ignore the change of name when it occasionally uses the traditional label of ‘ECJ’. Doing so emphasises internal differentiation, since the holistic label ‘CJEU’ embraces three separate bodies: the ‘Court of Justice’, the ‘General Court’, and, possibly in future, ‘specialised courts’.2 Judges at the Court of Justice are the apex of the judicial architecture, and they decide the overwhelming majority of cases on migration, so far at least. The EU’s top court should not be confused with the European Court of Human Rights

1 2

Antoine Vauchez, Brokering Europe (CUP 2015) 1. See TEU, art 19; and TFEU, arts 251–57.

European Migration Law. Daniel Thym, Oxford University Press. © Daniel Thym 2023. DOI: 10.1093/oso/9780192894274.003.0004

70 Court of Justice: Achievements and Limitations (ECtHR) in Strasbourg, whose impact on EU migration law will be traced in Chapter 5.3 on human rights.

3.1.1 Collective and multi-lingual adjudication In contrast to the US Supreme Court, names of judges sitting on the bench of the CJEU are not usually mentioned outside expert circles (and even the latter rarely discuss their role). This difference reflects the lesser politicisation of the judicial function in Europe, as well as the internal workings. Judges do not proclaim individual opinions. Instead, the Court agrees on a single text. The final judgment does not even indicate, in contrast to the ECtHR, whether it embodies a consensus or a majority view; separate opinions do not exist. While the reporting judge (rapporteur) has practical weight, she cannot succeed without the support of others. Participants confirm that the inner workings support consensus-building, mirroring the judicial tradition on the European continent.3 The need to agree on a single text may explain the opacity of the judicial reasoning in some cases, when judges concur on the outcome but disagree on the reasons. In contrast to the International Court of Justice, there are no ‘national’ judges in cases relating to a specific Member State. Assignment to a chamber is not influenced by the nationality of judges, which are fully independent in the exercise of their function. In contrast to individual judges, Advocates General tend be widely known, in expert circles at least. Their non-binding opinions are important points of reference for legal analyses, precisely because they articulate an argument that may be more coherent than the final judgment. While the Court often follows the Advocate General (AG), the final verdict may differ, especially in legally difficult or politically sensitive cases. Even if the end result is the same, lacunas in the Court’s reasoning cannot automatically be filled with the position of the AG, unless judges say so explicitly (as they regularly do). The last British AG Eleanor Sharpston gained a certain celebrity status owing to her outspoken opinions that often proposed advancing the rights of migrants. Judgments are—like secondary legislation—translated into all the twenty-four official languages, even though the official version of the file is defined by the language of the case.4 In practice, the French version has an aura of quasi-authenticity, since the Court still holds the internal délibéré in the former lingua franca of the EU institutions. The ‘lawyer-linguists’ will usually produce a high-quality translation into English, but it can be useful, for those mastering French, to compare language versions whenever a statement remains ambiguous. The same applies to those habitually reading judgments in other languages. Consultation of the French or English text can help overcome uncertainties about how to interpret ambiguous passages.

3 See Sophie Turenne, ‘Institutional Constraints and Collegiality at the Court of Justice of the European Union’ (2017) 24 MJECL 565, 576–80. 4 See Rules of Procedure of the Court of Justice [2012] OJ L265/1, arts 36, 37(3), with later amendments.

Influence of the Court Architecture 71 25 20 15 10 5

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Figure 3.1 Designation to different formations within the CJEU* *The statistics include judgments listed in the digest of CJEU case law, the Newsletters on European Migration

Issues (NEMIS) and Asylum Issues (NEAIS) of the Centre for Migration Law at Radboud University Nijmegen, and some additional rulings; it excludes cases that were removed from the register and those dealing with Union citizenship, as well as association agreements described in ch 17; I am grateful to Jonas Bornemann, Kilian Umbach, and student assistants for support in categorisation.

3.1.2 Horizontal outlook beyond migration law Experts in migration law should apprehend that the judges’ outlook transcends migration law. There are no specialised chambers for particular themes. There is constant variation in the assignment of subject matters, although a chamber may occasionally deliver several judgments on related themes: for instance, a series of family reunification cases or a sequence of Dublin rulings.5 Moreover, jurisdiction fluctuates between the Grand Chamber of fifteen judges and chambers of five or three judges. There are, for example, five different chambers of five judges each, which, taken together, deliver most judgments on migration. Figure 3.1 shows which formations deal with migration law. Bigger formations within the Court are generally chosen for (politically) important or (legally) difficult cases,6 and the formation may change exceptionally during the procedure.7 An instructive example is infringement proceedings: the high percentage of judgments by (small) chambers of three judges in the late 2000s reflected, as we shall see, the prevalence of uncontentious late transposition cases, whereas more recent and controversial proceedings against Hungary were decided by the Grand Chamber. Generally speaking, our statistical survey shows that smaller formations have gained relevance over the years, indicating that the case law has grown to maturity, although an increase in the political sensitivity of migration may result in more Grand Chamber judgments, such as between 2016 and 2018 and in 2021/22. Preliminary references on recurring questions, such as the status of Palestinian

5 Jurisdiction is assigned by the President under the Rules of Procedure (n 4) art 15; see further Daniel Thym, ‘A Bird’s Eye View on ECJ Judgments on Immigration, Asylum and Border Control Cases’ (2019) 21 EJML 166, 168. 6 See Rules of Procedure (n 4) art 60(1). 7 As it did in Case C-181/16 Gnandi EU:C:2018:465.

72 Court of Justice: Achievements and Limitations refugees, discussed in Chapter 13.5.6, will be given to smaller formations, on the basis of lead judgments by bigger formations. Having said this, the sheer complexity of the legal material entails that new questions are bound to arise frequently, thus complementing ‘settled case law’ with innovative rulings. EU migration law will remain exciting. Lack of specialisation supports the coherence of the supranational legal order but has the side effect of hindering the emergence of high levels of expert knowledge. The constant shift of jurisdiction helps to explain, as a contextual factor, why EU migration law was not aligned further with international refugee law in the Court’s practice, as demonstrated in Chapter 5.6.2 on the Refugee Convention. Judges may have to decide cases on diverse matters such as asylum, competition, tax law, and consumer protection in parallel. As a result, they will approach migration law as an integral part of the supranational legal order. Anyone trying to understand the judicial output should be aware of feedback loops between the migration law instruments and the overarching doctrinal foundations of Union law, which will be addressed in Chapter 6.

3.1.3 Frontex, Asylum Agency, and the pitfalls of specialised tribunals EU Treaties explicitly allow for the creation of ‘specialised courts’ in accordance with Article 257 TFEU. This option was introduced to allow for an increase in judicial capacity by means of organisational differentiation but has not been activated so far. The former Civil Service Tribunal ceased to exist in 2016, following a dispute over the reform of the General Court; its expanded size rendered the specialised tribunal unnecessary.8 Nevertheless, specialised tribunals might possibly become relevant for EU migration law, if the powers of Frontex or the Asylum Agency were strengthened substantially. Chapter 8.5 will explain that, at present, the powers of the agencies are essentially limited to support domestic authorities. If Frontex or the Asylum Agency were given autonomous decision-making authority, legal remedies before a supranational court would have to be foreseen. The sheer number of individual cases involved would effectively require the creation of a specialised tribunal— with the option of appeal, on points of law, to the General Court and, exceptionally, the Court of Justice.9 Doing so would pose formidable logistical challenges in terms of hiring new staff and organising effective working structures, including that of the definition of the geographical seat(s) of the specialised tribunals. Asylum applicants, or their legal representatives, could hardly be expected to travel to Luxembourg to appeal against a decision by the Asylum Agency delivered on a Greek island. While practical considerations would argue in favour decentralised tribunals, possibly in different locations across the Union, constitutional considerations support a uniform seat in Luxembourg.10 Moreover, specialised tribunals are disliked by judges at the Court who worry about coherence.11 These problems reflect, with a view to the judicial function, the difficulties in holding the migration agencies to account for wrongdoing, as discussed in Chapter 8.5. 8 Smaller Member States had insisted on one judge per country instead of expertise-driven nominations, thus inflating the number of judges on the bench. 9 See TFEU, arts 257(3), 256(2)(2). 10 Protocol [No 6] on the Location of the Seats of the Institutions [2008] OJ C115/265 can be interpreted to require the physical presence of the entire CJEU in Luxembourg. 11 See ‘Draft Amendments to the Statute of the Court of Justice’ (Council doc 8787/11, 7 April 2011) 7–9.

Influence of the Court Architecture 73 In light of organisational challenges, EU institutions might consider an intermediate solution. Regulatory agencies in other domains often have an independent internal appeals structure for review by a body of technical experts.12 Procedures may follow quasi-judicial patterns, but the appeals bodies retain an administrative character nonetheless. Such internal review adds value in areas of technical regulation, such as chemicals, where technical disputes may be resolved internally, before a legal remedy is lodged before the General Court (or, potentially, a specialised tribunal); such judicial remedies may be limited to points of law.13 In the areas of asylum and border controls, such double administrative and judicial appeals structure would be impracticable: the number of cases involved is too high and long procedures should be avoided. Some might propose that external judicial oversight should be replaced by a fully independent first instance of legal remedies within the agencies. Indeed, Article 13(1) Return Directive 2008/115/EC was deliberately drafted in abstract language: remedies shall be decided by a ‘judicial or administrative authority or a competent body composed of members who are impartial and who enjoy safeguards of independence’, in line with ECtHR case law that accepts the option of internal administrative oversight.14 In the EU context, however, Article 47 CFR offers a higher level of protection, in light of which the Return Directive must be interpreted. States have to guarantee judicial independence—a requirement administrative review does not usually meet.15 This argument can be projected upon Article 14(3) Schengen Borders Code Regulation (EU) 2016/399, whereas Article 46 Asylum Procedures Directive 2013/32/ EU leaves no room for administrative review. A fully fledged centralisation of administrative decision-making under the auspices of Frontex or the Asylum Agency would require supranational judicial appeal bodies, most likely via decentralised specialised tribunals. For the time being, this option remains elusive.

3.1.4 Non-governmental organisations and the limits of third party intervention Court judgments are not academic articles written in some study room. Rather, they present the endpoint of highly formalised proceedings, which usually comprise a written part and an oral hearing.16 Reading judgments, one realises that the Court refers to the arguments put forward during the proceedings, even though observers can learn about these views indirectly only, via explicit references in the judgment; the ‘dossier’ with the submissions will only become public knowledge 30 years after the judgment. Ignorance of submissions on the part of external observers should not, however, be equated with irrelevance. Judges

12 By way of example see Regulation (EC) No 1907/2006 concerning the registration, evaluation, authorisation and restriction of chemicals (REACH) [2006] OJ L396/1, arts 89–94, with later amendments; and Regulation (EU) 2017/1001 on the European Union trade mark [2017] OJ L154/1, arts 66–72. 13 See Regulation (EC) No 1907/2006 (n 12) arts 94, 72. 14 Article 13 ECHR does not, unlike Article 6(1) ECHR on civil rights and criminal charges, require an independent tribunal; see Kudła v Poland App no 30210/96 (ECtHR [GC], 26 October 2000) § 157. 15 See Joined Cases C-924/19 PPU and C-925/19 PPU Országos Idegenrendészeti Főigazgatóság Dél-alföldi Regionális Igazgatóság EU:C:2020:367, paras 128–35. 16 For a comprehensive discussion, see Koen Lenaerts, Ignace Maselis, and Kathleen Gutman, EU Procedural Law (OUP 2014).

74 Court of Justice: Achievements and Limitations frequently respond—explicitly or implicitly—to the arguments put forward.17 They have a significant impact on the judicial output, thus turning the right to intervene into a crucial procedural bottleneck. In the case of preliminary references, intervention is limited to the parties of the main proceedings, Member States, and most EU institutions.18 While the former appears self- evident, the latter mirrors the central role of national governments and the supranational institutions for the European polity. The Commission, in particular, is omnipresent. Representatives of its Legal Service, who have an imposing knowledge of Union law, systematically participate in all cases, thus exercising considerable influence. Member States intervene less systematically, mainly in response to references from ‘their’ courts and on politically sensitive subjects.19 More than a dozen governments intervened in high-profile cases such as X and X on humanitarian visas or N.S. on human rights in the Dublin procedure. Intervention gives governments a privileged avenue to influence the output. By contrast, third parties cannot usually intervene, with the exception of Norway, Iceland, and Switzerland in cases relating to the Schengen acquis.20 Neither non-governmental organization (NGOs) nor the UNHCR have an official say, and the rules of procedure do not permit amicus curiae submissions below the threshold of formal intervention, which are widely used in the US and before the ECtHR; a potential exception may be actions for annulment or damages initiated by private parties against Frontex, where attempts by academics to intervene have failed on purely procedural grounds.21 At best, private actors may get an indirect foot in the door of the courtroom via domestic proceedings, or they must make their views known otherwise.22 NGOs and third parties are, so to speak, the lone voice in the wilderness. Visibility of their position in the public debates contrasts with the relative exclusivity of the judicial procedure in Luxembourg.

3.2 Constitutional Authority of the Supranational Judiciary Judgments of the Court were essential for the success of the integration project. In the words of an early commentator: ‘Tucked away in the fairyland Duchy of Luxembourg and blessed, until recently, with benign neglect by the powers that be and the mass media, the Court of Justice . . . has fashioned a constitutional framework for a federal-type structure in Europe.’23 This pedigree of ‘judicial activism’ raised the question in how far the Court would take an active stance on migration law. Assessing the judicial output, we should recognise that the Court serves as a constitutional court and administrative tribunal simultaneously. 17 For a rich empirical analysis, see Marie De Somer, Precedents and Judicial Politics in EU Immigration Law (Routledge 2018) ch 8. 18 See Rules of Procedure (n 4) art 96(1). 19 See Jonas Bornemann, ‘The Role of Member State Governments in Migration Litigation before the ECJ’ (2020) 22 EJML 541. 20 See Protocol [No 3] on the Statute of the Court of Justice [2008] OJ C115/210, art 23(4). 21 See Sergio Carrera and Bilyana Petkova, ‘The Potential of Civil Society and Human Rights Organizations through Third-Party Interventions before the European Courts’ in Mark Dawson and others (eds), Judicial Activism at the European Court of Justice (Edward Elgar Publishing 2013) 233, 241–44; and Case T-600/21 WS and others v Frontex EU:T:2022:474 and EU:T:2022:464, involving Violeta Moreno-Lax and Mariana Gkliati. 22 By way of example, see the UNHCR statement on a pending case, taken up by AG Evgeni Tanchev, Case C- 507/19 Bundesrepublik Deutschland EU:C:2020:768, points 41–45. 23 Eric Stein, ‘Lawyers, Judges, and the Making of a Transnational Constitution’ (1981) 75 Am J Intl L 1.

Constitutional Authority of the Supranational Judiciary 75 While the reputation as a ‘motor of integration’ rests on the constitutional judgments, including human rights (3.2.1), many rulings on migration are defined by an administrative mindset (3.2.1). The Court accentuates classic questions of statutory interpretation and makes an effort to follow the position of the legislature (3.2.3). Experts in migration law must stand ready to chart the often Byzantine waters of doctrinal hermeneutics.

3.2.1 Reputation of ‘constitutional imagination’ Ever since their first term at university, experts in EU law have been told that the Court is a prominent player; the EU as we know it today is, partly at least, a creation of judges in Luxembourg.24 Judges famously emancipated the new legal order from public international law by establishing direct effect and supremacy and have forcefully defended the autonomy of Union law ever since. The Court established a set of unwritten general principles, including fundamental rights, to buttress the doctrinal self-sufficiency of the supranational legal order. Dynamism did not halt at constitutional matters. Judges similarly embraced a dynamic interpretation of Union citizenship and the fundamental freedoms, thereby limiting statal control imperatives. This left the Court with a reputation as a champion of the individual. Nonetheless, critics highlight an inbuilt ambiguity of the case law on individual rights, which followed a functional rationale supporting the effet utile (effective application) of Union law. Direct effect allowed citizens to enforce Union law via domestic courts, and unwritten fundamental rights foreclosed criticism of domestic constitutional courts.25 Judges strengthened individuals, since doing so supported the European project. Tellingly, the Court refrained from enhancing their status when the outcome might have hindered the effet utile. By way of example, Chapter 13.3.6 will explain that judges hesitated to suspend Dublin transfers in light of human rights. At the same time, the case law developed a life of its own and empowered individuals to promote their agenda via Union law. Chapter 5.4 will demonstrate that the Court increasingly refers to the Charter to justify dynamic rulings. In addition, Chapter 6.5 will present examples of how the concept of individual rights, enshrined in directives and regulations, can support third country nationals in the absence of far-fetched constitutional guarantees. Notwithstanding this track record, awareness of the ambiguity between support for the effet utile and individual’s rights is crucial for those studying migration law. It was and is no foregone conclusion that judges would interpret the migration law instruments dynamically. As mentioned in Chapter 1.3, the constitutional foundations of the area of freedom, security, and justice differ from the freedom-enhancing paradigm of the single market and Union citizenship. They lay down diverse and potentially contradictory objectives for law-making that leave the legislature much leeway.

24 See the classic account of Joseph HH Weiler, ‘The Transformation of Europe’ (1990/91) 100 Yale LJ 2403. 25 See Bruno de Witte, ‘Direct Effect, Primacy and the Nature of the Legal Order’ in Paul Craig and Gráinne de Búrca (eds), The Evolution of EU Law (3rd edn, OUP 2021) 187.

76 Court of Justice: Achievements and Limitations 30 25 18

15

25 25

23

22

20

19

17 13

10

9

8 5

5

3

7

8

9

3

0

20 04 20 05 20 06 20 07 20 08 20 09 20 10 20 11 20 12 20 13 20 14 20 15 20 16 20 17 20 18 20 19 20 20 20 21 20 22

0

28

26

Figure 3.2 Number of judgments on EU migration law per year* *See Figure 3.1 for the methodology.

3.2.2 Migration law: ‘administrative mindset’ As times change, so does the case law. Experts in Union citizenship often deplore that the dynamism early judgments gave way to an uncertain outlook, which similarly defines some of the judgments on Union citizenship and free movement.26 Within this overall context, the Court had to define its approach towards migration law when it started dealing with the matter in earnest in the early 2010s, as illustrated in Figure 3.2. At the time, the transposition period for the first wave of legislation had expired, and all domestic courts had obtained the right to make preliminary references. Early judgments may be rationalised as a process of discovery. They gradually embraced the specificities of secondary legislation on justice and home affairs. Doing so distinguished EU migration law from situations of overlap with the single market and Union citizenship, including association agreements.27 The sheer number of judgments meant that the case law on migration law gained momentum, gradually stepping out from under the shadow of other areas of Union law. A bird’s view on the judicial output will rarely be able to present clear-cut conclusions as to whether judges advance state interests or tend to side with migrants. Nevertheless, several trends at an intermediate level of abstraction are discernible. Overall assessments of the judicial output changed other the years, mirroring the increasing self-sufficiency of migration law. Early judgments exhibited classic features of the case law on Union citizenship and the single market: frequent reliance on general principles, predominance of teleological interpretation, and emphasis on individual rights.28 From the mid-2010s onwards, judges increasingly deferred to the position of the legislature and recognised a certain leeway of the Member States, notwithstanding instances of

26 See ch 1.1.7. 27 See ch 1.3.3. 28 See Kees Groenendijk, ‘Recent Developments in EU Law on Migration’ (2014) 16 EJML 313, 329–34; and Diego Acosta Arcarazo and Andrew Geddes, ‘The Development, Application and Implications of an EU Rule of Law in the Area of Migration Policy’ (2013) 51 JCMS 179.

Constitutional Authority of the Supranational Judiciary 77 dynamic innovation.29 A noticeable trend was careful and often scrupulous inspection of secondary legislation, which I have described as an ‘administrative outlook’ elsewhere.30 As starting point, the Court frequently emphasises that, in relation to a specific provision, ‘it is necessary to consider its wording, its origin, its context and the objectives pursued by the legislation’31. Multiple rulings demonstrate the vigour of such analyses, which can stretch over several dozen paragraphs. The newfound prominence of statutory interpretation coincided with a serious of controversial rulings on legal aspects of the asylum policy crisis of 2015/16, which have been poignantly described as an expression of ‘judicial passivism’32. Judges reaffirmed the structural integrity of the Dublin III Regulation (EU) No 604/2013 in the Jafari judgment, evaded a decision on humanitarian visas in the X and X case, and rejected an action for annulment against the EU-Turkey Statement.33 The outcome of all three judgments can be defended from a doctrinal perspective, but the judicial reasoning left observers with the impression that judges had evaded important constitutional questions. The ‘administrative mindset’ was accompanied by a lack of ‘constitutional imagination’34. Politically sensitive judgments on asylum in the aftermath of 2015/16 need not be representative. Chapter 6.5.3 will present evidence that several judgments in the early 2020s have explored the potential of the Charter of Fundamental Rights, which had often been ignored in previous rulings. Nevertheless, the overall picture will, also in future, exhibit shades of grey, no straightforward choice of black or white. The Court may continue to tread carefully on matters that are salient in the public discourse. Moreover, statutory interpretation in light of the wording and the general scheme can be expected to define the majority of judgments. It becomes visible once we shed light into less prominent corners of the multi-faceted case law discussed throughout this volume. Nevertheless, some areas may be defined by dynamism.

3.2.3 Interaction with the legislature Political scientists often describe courts as semi-autonomous actors trying to maximise their power. If that assumption was correct, the analysis would concentrate on ‘court curbing mechanism’ through which other actors mitigate the autonomy of judges.35 However, such focus on court autonomy tends to underestimate procedural and substantive constraints. That is not to say that extra-legal factors are irrelevant, as highlighted by the critical legal studies movement, which will be mentioned in Chapter 4.4. However, external factors do coalesce with classic arguments of legal interpretation, which define the official reasoning.36 29 See Jean-Yves Carlier and Luc Lebœuf, ‘Droit européen des migrations’ [2015] Journal de droit européen 111; and Cian C Murphy and Diego Acosta Arcarazo, ‘Rethinking Europe’s Freedom, Security, and Justice’ in Diego Acosta Arcarazo and Cian C Murphy (eds), EU Security and Justice Law (Hart Publishing 2014) 1, 8–15. 30 See Daniel Thym, ‘Between “Administrative Mindset” and “Constitutional Imagination”’ (2019) 44 EL Rev 138, 148–51. 31 Case C-647/16 Hassan EU:C:2018:368, para 40. 32 Iris Goldner Lang, ‘Towards “Judicial Passivism” in EU Migration and Asylum Law?’ EU Immigration and Asylum Law (24 January 2018). 33 See chs 13.2.4, 11.5, and 3.3.1.1. 34 Thym (n 30) 153–55. 35 See R Daniel Kelemen, ‘The Political Foundations of Judicial Independence in the European Union’ (2012) 19 JEPP 43. 36 See Gunnar Beck, The Legal Reasoning of the Court of Justice of the EU (Hart Publishing 2012).

78 Court of Justice: Achievements and Limitations Judges belong to an epistemic community taking seriously the tradition of doctrinal hermeneutics that are held in high regard among judges, professionals, and academics in the civil law jurisdictions on the European continent. In doing so, the Court simultaneously serves as a constitutional court and as an administrative tribunal. Whereas ‘constitutional’ adjudication authorises judges to correct the outcome of the legislative process in light of higher-ranking norms, such as human rights, ‘statutory’ (or ‘legislative’) interpretation is bound to follow the position of the legislature as a matter of principle. There is ample evidence that judges in Luxembourg generally aim at securing their ‘external’ legitimacy towards the legislature,37 despite the political institutions being in a weak position to overturn Court rulings through legislative change or Treaty amendment because of the procedural rigidity of decision-making.38 Quantitative studies by political scientists have shown that the Court tends to follow the preferences expressed by the other institutions ex ante in the form of legislation or during court proceedings.39 The pertinence of an ‘administrative mindset’ in the case law on migration law fits into this overall picture. From a theoretical perspective, emphasis on statutory interpretation arguably reflects the politicisation of migration law, discussed in Chapter 2.1.4. Judges might feel that it would overstretch their institutional legitimacy to be perceived as ‘activist’ on salient issues. Constitutional theorists generally emphasise that thick constitutional values can hardly be realised by judges alone. Innovative jurisprudence must be embedded in political processes and social practices if it does not want to remain a ‘hollow hope’.40 Accordingly, jurisprudential dynamism in the field of migration may require a broader imagination, which legal academics and judges cannot bring about single-handedly.41 In the absence of a widely shared pan-European vision, judges ‘tread along’ and orientate their reasoning at the legislative output. Having said this, an ‘administrative mindset’ harbours more potential than seemingly technical arguments about the wording, the general scheme, the telos, and the drafting history might suggest. Chapter 6.4 on the doctrinal foundations will discuss numerous examples of the inbuilt open-endedness of many migration law instruments, which often comprise compromise formulae. An ‘administrative mindset’ should not be confused with stasis. Statutory interpretation will often support the position of migrants, and if the legislation remains unclear, judges will vindicate the views of individuals in some cases, while siding with states on other occasions. Instead of a binary conclusion of the Court being predominantly ‘migrant-friendly’ or ‘statist’, countless judgments bear testimony of mixed outcomes: the proverbial shades of grey.

37 See the Court’s President Koen Lenaerts, ‘The Court’s Outer and Inner Selves’ in Maurice Adams and others (eds), Judging Europe’s Judges (Hart Publishing 2013) 13, 17–28; and Vassilis Hatzopoulos, ‘Actively Talking to Each Other’ in Dawson and others (n 21) 102. 38 See Susanne K Schmidt, The European Court of Justice and the Policy Process (OUP 2018). 39 See Olof Larsson and Daniel Naurin, ‘Judicial Independence and Political Uncertainty’ (2016) 70 IO 1; and Clifford Carrubba and Matthew Gabel, International Courts and the Performance of International Agreements (CUP 2014). 40 Gerald N Rosenberg, The Hollow Hope (2nd edn, University of Chicago Press 2008). 41 See Loïc Azoulai, ‘“Integration Through Law” and Us’ (2016) 14 ICON 449, 455–60; and, generally, Seyla Benhabib, ‘Claiming Rights across Borders’ (2009) 103 Am Pol Sci Rev 691.

Access to and Output in the Area of Migration 79

3.3 Access to and Output in the Area of Migration Article 47 CFR gives ‘everyone’ whose rights under Union law have been violated the ‘right to an effective remedy before a tribunal’. While the details of that provision will be discussed in Chapter 7.2 on the administrative dimension, comments hereafter concentrate on access to the Court of Justice. Narrow interpretation of rules for standing mean that only the EU institutions and the Member States will usually be able to access the Court directly (3.3.1). Notwithstanding the visibility of infringement proceedings in the expert debate, inspection of the Commission’s everyday practices demonstrates limited practical relevance (3.3.2). Instead, statistics reaffirm the essential function of preliminary references by domestic courts (3.3.3), although thematic asymmetries in the judicial output indicate that the ‘demand’ for supranational guidance differs markedly between the Member States and regarding subject matters (3.3.4).

3.3.1 Validity disputes Article 263 TFEU does not allow individuals to seize the supranational judiciary to declare national laws to be incompatible with Union law. To do so remains the prerogative of domestic courts, which have to consult judges in Luxembourg in cases of doubt. It is less obvious, however, whether individuals can challenge the validity of supranational legislation. The wording of Article 263(4) TFEU could possibly be interpreted broadly. Nevertheless, the CJEU has defended a narrow reading ever since the seminal Plaumann judgment of 1963. Judges have reaffirmed that position in the new millennium, while emphasising that Member States are under an obligation to establish effective legal remedies domestically.42

3.3.1.1 Direct actions by individuals on migratory matters In practice, the narrow definition of standing means that individuals will rarely be in a position to access the Court directly to challenge compliance of secondary legislation with human rights or other guarantees. Chapter 8.5.3 on agencies will discuss to what extent there is limited room for direct actions when Frontex or the Asylum Agency engage in operational activities. A rare case in which the General Court found a direct action to be admissible—but unfounded—concerned access to documents on border guard ships deployed in an ongoing Frontex operation.43 Controversially, the Court found another action for annulment against the EU-Turkey Statement to be inadmissible, which it qualified as an informal (political) commitment of the Member States meeting within the European Council.44 Even if judges had attributed—correctly, in my view—the Statement to the EU institutions, they would have had to answer follow-up questions. A first admissibility threshold would have been easier to cross, since judges generally interpret jurisdiction to ‘review 42 See Case 25/62 Plaumann EU:C:1963:17; and Case C-583/11 P Inuit Tapiriit Kanatami and others v European Parliament and Council EU:C:2013:625, para 104. 43 See Case T-31/18 Izuzquiza and Semsrott v Frontex EU:T:2019:815. 44 See Joined Cases C-208–210/17 P NF and others v European Council EU:C:2018:705, para 16; confirming Case T-192/16 NF v European Council EU:T:2017:128, paras 46–75; in line with the parallel decisions in Case T- 193/16 and Case T-257/16.

80 Court of Justice: Achievements and Limitations the legality of acts’ under Article 263 TFEU broadly to include any measure intended to produce legal effects45—a condition the EU-Turkey Statement might possibly have fulfilled.46 Claimants would have had more difficulties demonstrating that they are individually concerned in accordance with the Plaumann formula. Be it as it may, the inadmissibility of a direct legal challenge entailed that Greek courts held the responsibility for ensuring compliance with Union law. We shall see that this indirect route of decentralised adjudication proved ineffective in practice.

3.3.1.2 Privileged access by the EU institutions Member States, the European Parliament, the Council, and the Commission can access the Court directly, mirroring privileged standing rights of the political institutions before domestic constitutional courts. Many of the early judgments on migration were such interinstitutional proceedings: several disputes concerned institutional prerogatives with regard to the adoption of implementing or delegated acts, and the limits of the British-Irish opt-out;47 Hungary and Slovakia challenged—unsuccessfully—the mandatory relocation of asylum seekers;48 and the action for annulment, which the European Parliament had brought against the Family Reunification Directive, was critical for the doctrinal foundations of EU migration law.49 On the whole, however, such spectacular proceedings have remained singular events. Member States and EU institutions will not usually challenge the validity of acts adopted with their consent. Moreover, the judgment on family reunification is representative insofar as judges will rarely find secondary legislation to be in outright violation of human rights and, hence, null and void. Rather, they will insist on consistent interpretation, thus weaving human rights into the meaning of secondary legislation. Interpretation in light of human rights can be of immense practical importance, but it is an unattractive outcome for the plaintiff, since it loses the case officially. That is why actions for annulment are a practical rarity before the Court.

3.3.2 Infringement proceedings In public international law, conflicts are usually settled outside courts by means of dispute settlement or seemingly archaic forms of countermeasures. Even if an international tribunal holds jurisdiction, it will usually be seized by states directly. Against this background, we understand a critical innovation of the EU legal order. Instead of states taking legal actions against each other, the Commission gained the reputation as ‘guardian of the Treaties’ through the repeated and strategic use of infringement proceedings against reticent Member States.

45 See Case C-27/04 Commission v Council EU:C:2004:436, para 44. 46 See Mauro Gatti and Andrea Ott, ‘The EU- Turkey Statement’ in Sergio Carrera and others (eds), Constitutionalising the External Dimension of EU Migration Policies in Times of Crisis (Edward Elgar Publishing 2019) 175. 47 See ch 2.3.3 and 2.4.2. 48 See ch 13.3.2. 49 See ch 6.5.2.

Access to and Output in the Area of Migration 81 Table 3.1 Procedure underlying Court judgments on migration law up until 2022* Preliminary References

231 (85.7%)

Infringement Proceedings

22 (8%)

Actions for Annulment

14 (5%)

Opinion (Art. 218 TFEU)

1 (0.3%)

*See Figure 3.1 for the methodology.

3.3.2.1 Importance of the pre-litigation stage Infringement proceedings have generally lost relevance. Between 1990 and 2020, the number of Member States more than doubled and Union law embraced ever more subject areas, including migration. Nevertheless, the overall number of infringement proceedings remained stable: it stood at 903 in 2020.50 Closer inspection unveils remarkable details. Almost two-thirds of the new files concerned ‘late transposition’ of new directives. Such cases undoubtedly exercise useful pressure but are, by and large, a formality; moreover, less than 5 per cent of the infringement proceedings are referred to the Court.51 The reasons are diverse: Member States comply belatedly, the Commission’s legal assessment might change, or it decides not to pursue the matter for political or other reasons. Settled case law holds that the Commission has largely unfettered discretion whether to initiate proceedings and whether to refer a file to the Court. Having said this, the pre-litigation stage is much more than a formality. It provides the Commission with a platform to apply pressure. If Member States follow suit, the Commission achieves the objective in a quick and pragmatic manner. Court judgments may be visible to the external observer, but they consume time, can lead to political tensions, and cost scarce resources.52 Complaints by private actors, including NGOs, used to be an effective way to draw the Commission’s attention to potential breaches of Union law. In the late 1980s, almost 20 per cent of all complaints lead to formal infringement proceedings, while the ratio is much lower nowadays. In 2020, roughly 5 per cent of all complaints were pursued further, and migration was not among the priority areas where the Commission took action.53 Complaints by individuals and NGOs with the Commission are not particularly successful in practice anymore. 3.3.2.2 Changing dynamics in migration law A statistical survey, summarized in Table 3.1, confirms that the Commission does not take the lead in enforcing migration law (the data excludes cases resolved in the pre-litigation phase). In the early years, there was quite a number of judgments, but they mainly concerned late transposition, often for instruments of minor political importance, such as transit for purposes of removal by air. Designation to chambers of three judges confirms 50 Contrast the Commission, ‘General Statistical Overview’ SWD(2021) 212 final; with the ‘Eighth Annual Report to the European Parliament on Commission Monitoring of the Application of Community Law’ COM(91) 321 final. 51 ibid 21–24. 52 See Jos Hoevenaars, A People’s Court (Eleven 2018) 238–42. 53 See ‘Eighth Annual Report’ (n 50) 146; and ‘General Statistical Overview’ (n 50) 17–18.

82 Court of Justice: Achievements and Limitations that these early infringement proceedings had little relevance in practice, despite being visible in our statistical survey. More than two-thirds of all (!) infringement proceedings that have resulted in a judgment until the end of 2021 concerned late transposition.54 For many years, the Commission evaded bringing Member States to Court on legally difficult or politically sensitive topics. In the early years, only one infringement procedure resulted in a judgment that left a mark on the evolution of EU migration law with regard to fee levels.55 This hesitation left observers with a sense of disappointment,56 even if we figure in that the significance of infringement proceedings has decreased generally. The period of passive supervision came to an end during the policy crisis of 2015/16 when it became apparent that administrative practices on diverse subject areas such as reception conditions and the speed or quality of asylum procedures were deficient, if not dysfunctional. Infringement proceedings for failure to effectively apply EU legislation on the ground were a novelty; they provided the Commission with an opportunity to repel criticism of inertia.57 Hungary became a recurring ‘client’ of the infringement procedure when it openly refused to comply with the Council Decisions on the relocation of asylum seekers, and when it introduced asylum laws in flagrant violation of EU legislation. Several of these files ended up before the Court.58 These activities are important, yet the practical drawbacks are evident as well. Chapter 13.3.2 on asylum will demonstrate that infringement proceedings for non-compliance with the Relocation Decisions on quota-based mandatory relocation did not have practical effects, as the two-year period for relocation had elapsed when the Court delivered the judgment. Another ruling on Hungarian transit zones was delivered no less than five years after the Commission’s letter of formal notice and two years after referral to the Court.59 It came shortly after a judgment on the same matter, in response to a preliminary reference by a Hungarian court. Notwithstanding these practical limitations, the example of Hungary illustrates why infringement proceedings are a critical instrument the Commission can—and should— use strategically whenever a government wilfully defies Union law.60 Intentional non- compliance by self-declared ‘rebels’61 go beyond ‘regular’ breaches, which, unfortunately, are widespread across Europe in the domains of asylum and border controls. It is an act of symbolic disobedience that undermines the normative integrity of EU migration law.62 To counter such flagrant violations is an end in itself. Having said this, strategic proceedings against ‘rogue’ governments have risks. The burden of proof for administrative practices on 54 See the judgments in Case C-448/04; Case C-454/04; Case C-455/04; Case C-462/04; Case C-476/04; Case C- 4/07; Case C-5/07; Case C-3/07; Case C-34/07; Case C-57/07; Case C-58/07; Case C-59/07; Case C-256/08; Case C-293/08; Case C-272/08; Case C-322/08; and Case C-139/13. 55 See ch 10.1.3. 56 See Philippe De Bruycker and Henri Labayle, ‘Chronique de jurisprudence consacrée à l’Espace de liberté, de sécurité et de justice’ (2014) 49 Cahiers de droit européen 719, 720. 57 See Commission, ‘More responsibility in managing the refugee crisis’ (Press Release IP/15/5699, 23 September 2015); and the follow-up action (Press Release IP/15/6276, 10 December 2015; IP/17/5002, 7 December 2017). 58 At the end of 2022, five such cases had been referred to the Court (not all had been decided); see Case C-718/ 17; Case C-808/18; Case C-761/19; Case C-821/19; Case C-823/21; and https://ec.europa.eu/atwork/applying-eu- law/infringements-proceedings/infringement_decisions/?lang_code=en (accessed 1 March 2023). 59 See Case C-808/18 Commission v Hungary EU:C:2020:1029, paras 60–67. 60 See also No 3 Commission, ‘EU law: Better results through better application’ [2017] OJ C18/10. 61 AG Eleanor Sharpston, Joined Cases C-715/17, C-718/17 and C-719/17 Commission v Poland and others EU:C:2019:917, point 141. 62 See Evangelia (Lilian) Tsourdi, ‘Relocation Blues’ (2021) 58 CML Rev 1819, 1839–42.

Access to and Output in the Area of Migration 83 the ground rests with the Commission,63 thus complicating, by way of example, measures against pushback allegations. Moreover, judgments need not be respected, thus raising the conflict to a new level. When Hungary refused to change domestic legislation on transit zones, the Commission went to Court again and asked for financial penalties under Article 260(2) TFEU.64 We can only hope that the Hungarian government will respect the outcome.

3.3.3 Preliminary references Judges in Luxembourg are indispensable for the uniform interpretation of EU migration law. Nevertheless, the Court cannot handle, for reasons of capacity, more than the well- known tip of the iceberg. Domestic courts are essential actors in the European variant of federalism, whose multi-level system will be portrayed in Chapter 7.1 on the administrative dimension. Statistical data confirms the pivotal function of domestic courts. Two-thirds of all new cases before the Court are preliminary references.65 We have seen on the previous pages that the ratio is even higher in migration law: more than 86 per cent of the judgments delivered so far have responded to preliminary references, which are the ‘keystone’66 of the court architecture. Involvement of domestic courts has advantages, which help explain why the CJEU interprets rules on the direct access of individuals narrowly, while insisting on low admissibility thresholds for preliminary references. Judges in Luxembourg appreciate the division of labour with domestic courts, which serve as gatekeepers. They do the essential groundwork in terms of fact-finding, have an intimate knowledge of national laws, and, crucially, sit in courthouses across Europe. The Court concentrates on the interpretation of Union law, while leaving its application to the main proceedings to the referring courts.67 Preliminary references are the procedural equivalent of tentacles of sea creatures that permit the Court to reach out to judges in the Spanish Extremadura or the Romanian Transylvania. That does not mean, however, that all courts engage in active dialogue.

3.3.3.1 Stark discrepancies between the Member States Preliminary references on migration started reaching the Court in greater numbers after the Treaty of Lisbon had discontinued an earlier limitation to the highest courts.68 Readers who are not familiar with the Court practice might be surprised that so many references come from a few countries, as illustrated in Figure 3.3. In the field of migration, two jurisdictions (Germany and the Netherlands) account for 40 per cent of all references. If we add Belgium, Italy, and France, five countries account for more than two-thirds of all references. By contrast, the courts of more than half of the Member States (15) have sent three references or less. That contrast is significant even if it mirrors the overall picture of wide discrepancies; German and Italian courts are generally the most willing collaborators.69 63 See Case C-441/02 Commission v Germany EU:C:2006:253, paras 48–49. 64 Commission, ‘Migration: The Commission refers Hungary to the Court’ (Press Release IP/21/5801, 12 November 2021). 65 See CJEU, Annual Report 2021. Judicial Activity (March 2022) 243. 66 Opinion 2/94 Accession to the ECHR EU:C:1996:140, para 176. 67 See Case C-235/95 Dumon and Froment EU:C:1998:365, para 25. 68 See ch 1.2.4; and Steve Peers, ‘Mission Accomplished?’ (2011) 48 CML Rev 661, 681–85; on inadmissibility earlier see Case C-51/03 Georgescu EU:C:2004:200, paras 28–33. 69 See Annual Report 2020 (n 65) 264–68.

84 Court of Justice: Achievements and Limitations 47

50

47

45 40 35 30

24

25 15 10 5 0

19 14

13 7

12

9 3 2

0 1

7 3

1 0

6 1 2 2 0

2 0 0

4

6 0

AT BE BG CZ CY DE DK EE ES FI FR GR HR HU IE IT LT LU LV MT NL PL PT RO SE SI SK UK

20

Figure 3.3 Preliminary reference on EU migration law per country during 2006–22* *Abbreviations follow the internet top level domain; on the methodology see Figure 3.1.

This incongruent practice implies that certain perspectives and themes do not reach the Court. While the substantial number of references from the founding members reflects both the general orientation of the judiciary towards Union law and the practical importance of migratory issues, the relative insignificance of other countries invites comments. The low numbers for Denmark ( 0), Ireland (7), and the UK (6, before Brexit) can be explained by their opt-outs. In addition, the lesser visibility of the domestic courts from Central and Eastern Europe—with the exception of Bulgaria (7) and Hungary (12)—can be rationalised by the comparatively low number of third country nationals living there.70 Nonetheless, one might have expected larger countries like Spain (9), Poland (2), or Romania ( 0) to play more than an ancillary role. Most striking, however, is the marginal role of Greek courts, which referred only one case on the Return Directive.71 Not a single Greek court had consulted judges in Luxembourg on how to interpret the asylum acquis in the aftermath of 2015/16 until 2022.72 In a remarkable move, the Greek Council of State had declared return of Syrians to Turkey on the basis of the safe third country provision to be compatible with Union law without asking the Court of Justice, until it finally referred a related question on whether Turkey still qualified as safe in light of an enduring refusal to take anyone back in 2023.73 The original decision not to refer was incompatible with the well-known obligation, on the part of the highest courts, to make a reference under Article 267(3) TFEU in cases of doubt. The Greek example may be an extreme case, but it is illustrative of a more general divergence between the theory of mandatory referral and widespread factual flexibility. It is quite simply inconceivable that

70 Most references from these countries concerned asylum. 71 See Case C-184/16 Petrea EU:C:2017:684. 72 On the practice of Greek courts see Angeliki Papapanagiotou-Leza and Stergios Kofinis, ‘The Case of Greece’ in Madalina Moraru and others (eds), Law and Judicial Dialogue on the Return of Irregular Migrants from the European Union (Hart Publishing 2020) 281. 73 See the original 13:12 vote against referral by the (Greek) Council of State (Συμβούλιο της Επικρατείας), App nos 2347/2017 and 2348/2017 (judgments of 22 September 2017); and ibid, App no 177/2023 (decision of 3 March 2023).

Access to and Output in the Area of Migration 85 the highest courts dealing with migration law are not confronted with more questions to which the answers are not evident.

3.3.3.2 Carrots and sticks for loyal cooperation Theoretically, the Commission could have initiated infringement proceedings against Greece when the highest administrative court refused to refer an important case, but this option should not detract from the necessity of voluntary cooperation. Empirical studies show that divergences between the Member States can be explained (not: justified) by differences in the organisation and self-image of the judiciary, knowledge of Union law, pragmatic considerations like length of proceedings or workload, personal circumstances such as interest in European affairs, and the role of parties.74 Political scientists highlight, furthermore, that the CJEU activated domestic courts by pleading to their self-interest. Primacy of Union law enhanced their power in countries which have traditionally known weaker court supervision. Telling examples include a Polish court seeking support from the Court against the exclusion of visa refusal from its jurisdiction and Hungarian references extending the scope of judicial oversight.75 Lower courts can be particularly fruitful partners, since they may use cooperation with the Court of Justice to circumvent domestic judicial hierarchies.76 An avalanche of preliminary references from Spanish courts reached Luxembourg after the Supreme Tribunal had interpreted domestic rules in contradiction with the Long-Term Residents Directive.77 Impulses from lower courts remain essential for the dynamic evolution of EU migration law. Moreover, the option of decentralised referrals is a motivation for apex courts to take the obligation to make a reference seriously. After all, referring courts exercise influence by framing the question in a specific manner.78 Publication of the order for reference of domestic courts, from 2020 onwards, will make available an important document external observers had previously been unaware of. Non-referral need not signal trouble. As a rule of thumb, preliminary references will usually be an indication of loyalty and compliance, but the reverse statement need not be correct. Silence can mean many things: for the one, national legislation and judicial practice may comply with EU migration law; for the other, domestic courts may listen carefully, in passive obedience, to what the Court says in response to referrals from elsewhere.79 In many cases, however, silence will indicate potential problems, also considering that domestic courts may misread the meaning of secondary legislation whose ‘legal concepts do not necessarily have the same meaning [than in the legal orders of the] Member States’.80

74 See Jasper Krommendijk, ‘The Preliminary Reference Dance between the CJEU and Dutch Courts in the Field of Migration’ (2018) 10 Eur J Leg Stud 101, 122–41. 75 See Case C-403/16 El Hassani EU:C:2017:960, paras 39–41; and Case C-585/16 Alheto EU:C:2018:584, paras 107–13. 76 See generally Karen J Alter, ‘The European Court’s Political Power’ (1996) 19 Western Eur Pol 458, 466–71. 77 See Case C-448/19 Subdelegación del Gobierno en Guadalajara EU:C:2020:467; parallel references in cases Case C-531/19; Case C-533/19; Case C-534/19; Case C-549/19; and Case C-567/19 were repealed after the judgment; further Diego Acosta Arcarazo, ‘Court of Justice of the European Union (Ninth Chamber), WT v Subdelegación del Gobierno en Guadalajara’ (2020) 22 EJML 457. 78 See also Daniel Thym, ‘Friendly Takeover, or: the Power of the “First Word”’ (2020) 16 EuConst 187, 204–206. 79 See Jasper Krommendijk, National Courts and Preliminary References to the Court of Justice (Edward Elgar Publishing 2021) ch 7; and Galina Cornelisse and Madalina Moraru, ‘Introduction’ in Moraru and others (n 72) 17. 80 See Case 283/81 CILFIT EU:C:1982:335, para 19.

86 Court of Justice: Achievements and Limitations

3.3.3.3 Between micromanagement and vagueness Notwithstanding the positive description of the preliminary reference procedure as a ‘dialogue’81, national judges occasionally lament the absence of a genuine conversation and the ‘ivory tower’ logic of the supranational judiciary. The sense of frustration will be particularly strong if domestic courts are left with the impression that the Court merely provides abstract answers, or did not adequately grasp the legal and practical specificity of the preliminary reference.82 Such frustration may even be a reason, for domestic courts, not to make another reference. This does not suggest, however, that the Court should always give detailed instructions.83 To respond to preliminary references means to walk a tightrope between micromanagement and vagueness. The appropriate balance is difficult to keep and ultimately depends on the circumstances. Generally, the CJEU should defer to domestic courts whenever the answer to a question requires an intimate knowledge of either the facts or domestic law. Having said this, the application of that standard can differ markedly, as the case law on asylum decisions illustrates. While some judgments engage in detailed prescriptions, such as a ‘strong presumption’84 that refusal to perform military service in Syria during the second half of the 2010s supports refugee status, other rulings retreat to abstract formulations. A telling example is the Elgafaji formula on a gliding scale about indiscriminate violence in civil wars, which will be discussed in Chapter 13.6.2 on subsidiary protection. The Court provided guidance at such a high level of abstraction that the common standard will rarely result in synchronised assessments of the situation in specific countries. Divergences between recognition rates for different countries of origin can be traced back, amongst others, to the open-endedness of the supranational case law. Experts in migration law should recognise that the intuitive call for further refinement need not be the optimum. Limited resources require judges in Luxembourg to tread carefully, instead of answering every question in detail. A resilient working relationship with domestic courts is essential for the effectiveness of EU migration law. The Court of Justice should strive for thorough instructions whenever a case concerns politically or legally important questions. It should, in particular, invest time and energy in coherent rulings on horizontal questions that define the evolution of EU migration law, while leaving domestic courts to micromanage situations which primarily relate to one specific country or require an intimate knowledge of the facts.85 A classic example of political salience are controversial pre-departure language tests as a precondition for family reunification, which will be analysed in Chapter 15.4 on integration and where the Court gave detailed instructions. Meanwhile, a fine example of conceptual importance is found in the meaning of ‘public policy’ justifying the rejection or withdrawal of residence permits, discussed in Chapter 10.3 on overarching themes of secondary legislation.

81 Accession to the ECHR (n 66) para 176. 82 See Krommendijk (n 79) chs 5–6. 83 See Daniel Sarmiento, ‘Half a Case at a Time’ in Catherine van de Heyning and Maartje de Visser (eds), Constitutional Conversations in Europe (Intersentia 2012) 13, 26–40. 84 Case C-238/19 Bundesamt für Migration und Flüchtlinge EU:C:2020:945, para 57. 85 See also Alexander Kornezov, ‘The New Format of the Acte Clair Doctrine and Its Consequences’ (2016) 53 CML Rev 1317.

Access to and Output in the Area of Migration 87 10

46

27

Institutions

7

Border controls Visas Asylum

61

Legal Migration Return

117

Asylum cases dealt with:

117 (44%)

Dublin/Relocation Procedures Directive Qualification Directive and temporary protection

38 33

Reception Conditions Directive

6

Legal migration cases concerned:

40

61 (23%)

Family reunification Long-term residents

25 22

Economic migration, incl. students

10

Other Areas

4

Figure 3.4 Subject areas of Court judgments on migration law up until 2022

3.3.4 ‘Demand’ side Legal experts tend to overestimate the influence of courts. While some subject matters rarely end up in court, other domains feature prominently in the judicial output. Statistics from Germany illustrate that administrative courts had to deal with veritable ‘waves’ of litigation on asylum, depending on the number of applications, while legal migration for economic and other purposes ends up before domestic courts much less frequently.86 There are similar discrepancies in the number of CJEU judgments on different themes.

3.3.4.1 Thematic asymmetries in migration law Our statistical survey of the case law confirms that certain issues are more frequent than others. Figure 3.4 shows that more than four out of ten judgments concerned asylum, reflecting the controversial nature of many proceedings and the high number of asylum applications in Member States whose domestic courts make many references. Within Germany, the ratio of negative asylum decisions being challenged stands just below 90 per cent,

86 Approximately 50 per cent of all decisions by administrative courts concerned asylum during 2020, compared to 7 per cent for other aspects of migration law (including return) and 1.7 per cent for environmental protection (to mention another area); see Destatis, Justizgeschäftsstatistik 2020 (Fachserie 10 Reihe 2.4, August 2021) 12.

88 Court of Justice: Achievements and Limitations Table 3.2 Subject areas of Court judgments on migration law up until 2022* Asylum cases dealt with: Dublin/Relocation Procedures Directive Qualification Directive and temporary protection Reception Conditions Directive Legal migration cases concerned: Family reunification Long-term residents Economic migration, incl. students Other Areas

117 (44%) 38 33 40 6 61 (23%) 25 22 10 4

*For

the methodology see Figure 3.1; again, I am grateful to Jonas Bornemann, Kilian Umbach, and student assistants for support in the categorisation.

considerably higher than for other segments of migration law.87 Explanations involve the often existential significance of the outcome for individuals, the legal and factual complexity of many proceedings, as well as benefits like the suspension of return during the court procedure. The high proportion of CJEU rulings on the Dublin system, asylum procedures, and refugee status determination, as opposed to reception conditions, summarized in Table 3.2, may be rationalised by the density of supranational prescriptions. By contrast, those living in a third state are much less likely to seize courts: the number of judgments on visas and border controls is low, despite the high number of third country nationals concerned and the density of legislative harmonisation. Allegations of pushback practices at the external borders received much attention, and the consulates of all Schengen countries reject more than one million visa applications per year. Nevertheless, few references reach the Court on these matters, reflecting the absence of litigation at the domestic level.88 Reasons include logistical, financial, and practical difficulties in accessing domestic courts from abroad, a low chance of success, and the absence of immediate benefits during the court procedure. The example of the Return Directive illustrates the relational character of preliminary references. A first judgment on the criminalisation of illegal entry or stay, which will be presented in Chapter 16.3.3, set in motion a ‘snowball effect’,89 with several follow-up references testing the limits of the first ruling. Similar effects can be observed for take back requests under the Dublin system, the scope of legal remedies against asylum decisions, and the use of specialised detention facilities.90 A first judgment may kick-start a process of discovery. References from different countries indicate that Court judgments are read across the continent. We can expect similar developments in the future. Step by step, new subject matters gain prominence.

87 See (German) Federal Government (Bundesregierung), ‘Ergänzende Informationen zur Asylstatistik’ (Bundestag doc 20/2309, 17 June 2022) 50. 88 During 2019 (before the pandemic), the German complaint ratio for refusal of short-term visas stood at 0.4 per cent; and was only slightly higher with 3.7 per cent for long-term visas; see (German) Federal Government (Bundesregierung), ‘Visaerteilungen im Jahr 2018 und im ersten Halbjahr 2019’ (Bundestag doc 18/14701, 4 November 2019) 6, 35. 89 Galina Cornelisse, ‘The Scope of the Return Directive’ in Moraru and others (n 72) 41, 58. 90 See chs 13.3, 7.2.3, and 13.7.4.

Access to and Output in the Area of Migration 89

3.3.4.2 Strategic litigation to the benefit of migrants The Court’s reputation of dynamic rulings rested, as we have seen, on the doctrine of direct effect and the preliminary reference procedure providing legal entrepreneurs with an avenue to challenge state practices. It was attractive for individuals to involve the supranational judiciary. Judges in Luxembourg often approached domestic laws from a different perspective than the highest national courts. Case law on Turkish nationals, mentioned in Chapter 17.4 on association agreements, is an excellent example of how committed individuals could disrupt deep-rooted domestic patterns under recourse to a seemingly obscure body of rules. A loose group of lawyers and academics from the Netherlands, Germany, the United Kingdom, and Austria succeeded in bringing dozens of cases to the CJEU, thereby effectively decoupling the legal status of Turkish nationals under the association acquis from ‘regular’ migration law towards third country nationals.91 More recently, an active practitioner from Copenhagen built upon this tradition by orchestrating several Danish references on the Turkish association acquis.92 Sociolegal studies on the making of preliminary references within the area of freedom, security, and justice shed light on underlying dynamics. European rules establish a structure of opportunity not anyone will use. To do so requires agents in the form of lawyers, NGOs, or support networks to identify prospective lead cases and to convince domestic courts to refer the matter. A thorough understanding of Union law, the practice of domestic judges, political determination beyond the individual case, as well as logistical, academic, and financial support can be relevant factors that define the potential of strategic litigation.93 If successful, individual actors exercise considerable sway over the evolution of EU migration law. At the same time, however, success is no foregone conclusion. Qualitative studies on strategic litigation before the CJEU have indicated mixed results, especially with regard the long-term transformation of the case law.94 To bring a case to Luxembourg, will rarely be enough. Ideally, it needs to be well-chosen in terms of factual background and legal circumstance.95 Moreover, states ‘fight back’ by intervening strategically in important cases, thereby exploiting their privileged procedural status. Increasing politicisation arguably renders dynamic interpretation less likely at a time when an administrative outlook defines, as we have seen, the supranational judicial output. Experience from the US highlights that transformative litigation should be embedded in broader political strategies to succeed in the medium run.96 91 Proactive lawyers and advisers include: Dirk Schaap and Kees Groenendijk from the Netherlands; Rolf Gutmann, Hagen Lichtenberg, and Rainer Hofmann from Germany (the German government was frequently advised by Kay Hailbronner); Nicola Rogers from the UK; and Wilfried Ludwig Weh from Austria; see Kees Groenendijk, ‘The Court of Justice and the Development of EEC-Turkey Association Law’ in Daniel Thym and Margarite Zoeteweij-Turhan (eds), Rights of Third-Country Nationals under EU Association Agreements (Brill Nijhoff 2015) 39, 57–60; and Kees Groenendijk, Merle Rondhuis, and Tineke Strik, ‘Klagen bij de Europese Commissie’ (2015) 6 Asiel & Migrantenrecht 24. 92 Thomas Ryhl is mentioned as the representative in many cases; for a list of all judgments see Part 4 NEMIS Newsletter https://cmr.jur.ru.nl/nemis (accessed 1 March 2023). 93 See Hoevenaars (n 52) chs 5–7; and Virginia Passalacqua, ‘Legal Mobilization via Preliminary Reference’ (2021) 58 CML Rev 751, 764–75. 94 See Moritz Baumgärtel, Demanding Rights (CUP 2019); and also De Somer (n 17) ch 8. 95 Baumgärtel (n 94) ch 8. 96 See Austin Sarat and Stuart Scheingold, ‘The Dynamics of Cause Lawyering’ in Austin Sarat and Stuart Scheingold (eds), The Worlds Cause Lawyers Make (Stanford UP 2005) 1; and also Daniel Thym, ‘The End of Human Rights Dynamism?’ (2020) 32 IJRL 569, 588–95.

90 Court of Justice: Achievements and Limitations

3.4 Alternative Accountability Mechanisms Flagrant deficits in core areas of asylum law and border controls stark discrepancies in the number of judgments on different themes accentuate the need for alternative accountability mechanisms besides judicial oversight: think of the inadequate reception conditions in the ‘hotspots’, the failure of the takeback procedure under the Dublin system, or pushbacks allegations against border guards. Moreover, cooperation with third states can be difficult to get a hold of from a legal perspective. Court proceedings are essential, but they should be complemented—not replaced—by alternative instruments to ensure that the law is being applied in practice (3.4.1). EU migration law benefits from the involvement of the Ombudsperson (3.4.2), financial and managerial accountability via the Court of Auditors (3.4.3), political oversight by parliaments (3.4.4), and access to documents as a catalyst for public scrutiny (3.4.5).

3.4.1 Accountability for wrongdoing beyond courts Most legal accounts intuitively focus on courts as the primary, if not sole, forum for holding public authorities to account. That focus on the law and courts often conceals the added value of other accountability fora and control standards. Such alternative mechanisms attracted much attention after the change of the millennium, as an integral part of the new modes of governance.97 In the field of migration, accountability beyond courts is about complementary avenues for ensuring compliance, not about replacing legally binding rules and court oversight by soft law instruments, as it occasionally did in other domains. Accountability need not be confined to respect for legal rules. It is generally conceived of as an umbrella concept embracing non-judicial control fora and non-legal control standards. At an abstract level, we can distinguish diverse forms of political (towards parliaments, the media, etc.), financial (vis-a-vis auditors or anti-fraud bodies), administrative (ombudspersons, controllers, complaint bodies), legal (via courts), and social (towards civil society and the general public) channels of accountability.98 These different mechanisms and standards are not mutually exclusive and may reinforce each other. Thus, the Ombudsman prepared the ground for the introduction and reform of the internal complaints mechanism for Frontex. Inquiries by international expert bodies, under human rights law, concerning state practices at the external borders can unearth useful information that can be used in litigation before courts later-on. Having said this, the specific outlook of the accountability research is not confined to preparing the ground for legal remedies before courts. Non-judicial mechanisms can be an instrument in their own right to draw attention to existing shortcomings and to activate diverse actors and resources to overcome them. The added value of political, financial, administrative, and social accountability becomes evident when misconduct does not amount to a violation of judiciable legal standards. Cooperation with third states is a prime example

97 See ch 2.3.4, 2.3.6. 98 See Carol Harlow, Accountability in the European Union (OUP 2002) ch 1; and Mark Bovens, Deirdre Curtin, and Paul ’t Hart, ‘Studying the Real World of EU Accountability’ in Mark Bovens and others (eds), The Real World of EU Accountability (OUP 2010) 31, 41–56.

Alternative Accountability Mechanisms 91 of a subject matter where recourse to extra-legal standards in non-judicial fora can be particularly useful. Comments that follow concentrate on formal mechanisms that oblige an actor to respond to inquiries about potential misbehaviour. Such institutionalised mechanisms will often result in a decision, which will not usually be legally binding. Accountability in this sense concentrates on ex post supervision, not diverse forms of ex ante influence, such as training, appointment procedures, or reporting requirements, which will be mentioned in Chapter 8.5.2 with regard to the governance of the migration agencies. Our inspection of administrative, financial, political, and social accountability will present one example each. Focus on the supranational level is not meant to ignore the practical relevance of additional domestic mechanisms.

3.4.2 Ombudspersons as vehicles of administrative control Informal complaints with (semi-)independent inspectors or watchdogs have existed for centuries, but the institution of the ‘European Ombudsman’ is very much a proliferation of the Scandinavian model. It was formalised under the Treaty of Maastricht and has been emulated domestically, not least in Central and Eastern Europe. The added value of the European Ombudsman stems from easy accessibility via a complaints mechanism open to all Union citizens and third country nationals residing within Union territory.99 There are no restrictive standing rules, which complicate direct access to the Court of Justice.100 Inquiries result in a ‘decision’, which may not be legally binding but can exercise political and administrative pressure. A fine example are own-initiative reports on the initial absence and later dysfunctionality of the internal complaints mechanisms for Frontex. They played a critical role in establishing and improving a mechanism, which effectively replicated the Ombudsman’s administrative accountability function within the Warsaw-based agency.101 In addition, proposals were put forward how Frontex could improve the planning and conduct of operations.102 Notwithstanding broad jurisdiction for ‘maladministration’, which can cover misconduct below the threshold of illegality, many reports on migration concentrate on legal standards. An important instrument are own-initiative inquiries, which allow the Ombudsman to draw attention to structural weaknesses court judgments often struggle to address systematically in the absence of claimants. Most activities in relation to Frontex emanate from such own-initiative inquiries. Informality can be another advantage, allowing the Ombudsman to get active before another institution takes a final decision. This may prevent tensions from escalating, also considering that the Ombudsman can intervene at short notice, whereas 99 See TFEU, art 228(1). 100 See Decision 94/262/ECSC, EC, Euratom governing the performance of the Ombudsman’s duties [1994] OJ L113/15, arts 2–4, with later amendments. 101 See Ombudsman, ‘Implementation by FRONTEX of its fundamental rights obligations’ (Decision OI/5/ 2012/BEH-MHZ, 12 November 2013); ‘Respect for fundamental rights in joint return operations (JRO)’ (Decision OI/9/2014/MHZ, 4 May 2015); and ‘Frontex complaints mechanism for alleged breaches of fundamental rights’ (Decision OI/5/2020/MHZ, 15 May 2021). 102 See Ombudsman, ‘How Frontex ensures accountability in relation to its enhanced responsibilities’ (Decision OI/4/2021/MHZ, 17 January 2022).

92 Court of Justice: Achievements and Limitations court proceedings often take years. The Ombudsman can make—unlike courts—proposals how existing legislation or administrative practices may be changed, as it did for Frontex. Jurisdiction concerns the EU institutions and bodies, not domestic authorities. That is an important limitation, notably in the areas of border controls and asylum. More than half of the complaints made to the Ombudsman fall outside its jurisdiction; they are usually forwarded to national ombudspersons or similar bodies.103 A related limitation concerns the complaints mechanism within Frontex. The behaviour of national border guards is beyond its reach, although the overwhelming number of complaints concerned their performance.104 Additional ex ante and ex post mechanisms supporting human rights compliance by Frontex staff and national personal include training, involvement of fundamental rights officers, a code of conduct, and reporting obligations.105 Ongoing debates about a future Screening Regulation are considering whether to oblige Member States to set up an independent monitoring mechanism whose jurisdiction ratione materiae remains to be hammered out during the negotiations.

3.4.3 Financial and managerial accountability Money and administrative effectiveness are often overlooked in legal analyses, although much money is regularly dispersed on the basis of the funds mentioned in Chapter 7.4 on the administrative dimension. Even more money is being spent on cooperation with third states; it serves as an essential sweetener to enlist neighbouring countries into collaborative migration management, discussed in Chapter 18.3. Control of budgetary spending and administrative effectiveness can be powerful tools to oversee policies, which are difficult to grasp via classic accountability mechanisms. A crucial institution to do so is the European Court of Auditors (ECA), which serves as the Union’s public audit body.106 Oversight covers technical financial matters of regular and reliable reporting to prevent fraud as well as the sound and cost-effective administration of EU funds beyond the prevention of financial irregularities. Similar functions are performed by the European Anti-Fraud Office (OLAF), which serves as an internal watchdog of the Commission to prevent corruption and mismanagement.107 Both institutions are active in the field of migration. Concerns about mismanagement in terms of achieving policy objectives motivated special reports by the Court of Auditors on (dis)functionalities of the hotspot approach in Greece and Italy, which received almost 2bn EUR in funding during the second half of the 2010s.108 During 2021/22, ECA and

103 See Ombudsman, Annual Report 2020 (May 2020) 30. 104 See Frontex Regulation (EU) 2019/1896, art 111; and David Fernández Rojo, EU Migration Agencies (Edward Elgar Publishing 2020) 191–201. 105 Frontex Regulation (EU) 2019/1896 (n 104) arts 62, 80–81, 108–10, Annex V; and Thomas Groß, ‘Defizite des Grundrechtsschutzes bei FRONTEX-Einsätzen’ [2020] Zeitschrift für Ausländerrecht 51. 106 See TFEU, arts 285–87; and Harlow (n 98) ch 5. 107 OLAF stands for Office européen de lutte antifraude; its powers are defined by Commission Decision 1999/ 352/EC, ECSC, Euratom establishing the European Anti-Fraud Office [1999] OJ L136/20, with later amendments. 108 See ECA, ‘Asylum, relocation and return of migrants’ (Special Report No 24/2019, 13 November 2019); and ‘EU response to the refugee crisis’ (Special Report No 06/2017, 25 April 2017).

Alternative Accountability Mechanisms 93 OLAF censured Frontex, thus triggering the resignation of the former executive director.109 Additional examples will be mentioned in several chapters throughout the book. Audits of spending on external cooperation are relevant, since there are few other and effective accountability fora. NGOs and academics have tried to activate the Court of Auditors to engage in closer scrutiny of the funds channelled into Northern Africa, especially Libya,110 building on an earlier, damning report.111 Similar criticism has been brought forward against the EU Emergency Trust Fund for Africa.112 It should be noted, however, that there is no guarantee of success. The Court of Auditors is not obliged, as a public interest body, to take up complaints by individuals. Moreover, reports are, like the decisions of the Ombudsman, not legally binding; their effectiveness depends on the willingness of other actors to take on board the recommendations, if need be as a result of public pressure (‘naming and shaming’).

3.4.4 Political oversight by parliaments While the European Parliament is known best for co-decision powers in law-making, it exercises an important control function over the Commission and other executive bodies. Leaving aside mechanisms of ex ante control in the appointment of personnel, instruments of ex post supervision include written and oral questions, committees of inquiry, or radical measures such as a motion of censure against the college of Commissioners.113 In 2021, the LIBE Committee set up an extraordinary ‘Frontex scrutiny group’ on allegations of involvement, or tacit acquaintance, of the border agency with pushback practices by Greek border guards.114 The latest version of the Frontex Regulation (EU) 2019/1896 extended parliamentary supervision through reporting obligations. MEPs publicly discuss their plans with the candidates for the position of executive director, can request them to appear in parliament, and serve as one of the budgetary authorities for setting up and discharging the budget.115 Similar powers exist vis-a-vis the Asylum Agency. Moreover, the European Parliament commissions reports written by its research staff or by external academics. They can be useful tools for public scrutiny and policy debates. A telling example was a report on the impact assessment of the Return Directive, which the Commission had failed to put forward.116 All parliamentary reports are publicly available, thus facilitating their reception by expert circles and the general public.

109 See ECA, ‘Frontex’s support to external border management’ (Special Report No 08/2021, 7 June 2021); and OLAF, ‘Final Report Olaf.03(2021)21088’ (2021) https://fragdenstaat.de/dokumente/233972-olaf-final-report- on-frontex (accessed 1 March 2023). 110 See the (informal) complaint to ECA by the Global Legal Action Network (GLAN), ‘EU Financial Complicity in Libyan Migrant Abuses’ (April 2020). 111 See ECA, ‘Frontex’s Support to External Border Management’ (Special Report No 9/2016, 17 March 2016). 112 See Thomas Spijkerboer and Elies Steyger, ‘European External Migration Funds and Public Procurement Law’ (2019) 4 European Papers 493. 113 See TFEU, arts 226, 230(2), 234. 114 See LIBE Committee, ‘Report on the Fact-finding Investigation on Frontex Concerning Alleged Fundamental Rights Violations’ (Rapporteur: Tineke Strik, EP Working doc, 14 July 2021). 115 See Frontex Regulation (EU) 2019/1896, arts 6, 65, 102, 106(2), 107(2), 116. 116 See ch 16.5.

94 Court of Justice: Achievements and Limitations

3.4.5 Access to documents as a source of public debates Information is a precondition for meaningful public debate. The younger generation may have difficulties imagining how the world of EU decision-making looked like up until the 1990s, before the arrival of the digital age and rules on access to documents (for instance under the secretive intergovernmental Schengen cooperation117). Nowadays, ‘transparency’ is a constitutional obligation of the EU institutions.118 They have established public registers, which can be accessed via the internet. Such a public register is particularly relevant for the Council, whose internal workings had traditionally been defined by the habits of diplomatic confidentiality.119 Rules on access to documents can be a useful source of information for those engaging in research on subject matters for which documents are not publicly available. That does not mean, however, that applications for access to documents will always succeed. Confidentiality of the legislative procedure, the effectiveness of operational activities, and the sensitivity of diplomatic relations can be legitimate reasons to reject access.120 As mentioned previously, journalists failed, before the General Court, to oblige Frontex to make information about domestic ships employed in an ongoing border control operation available. Moreover, publication of many official documents means that delicate matters may be discussed in informal ‘non papers’, which have become standard practice in discussions about asylum reform. Unofficially, the website of the non-profit organisation Statewatch serves an invaluable source of documents on justice and home affairs that cannot be accessed via regular channels.121

3.5 Summary Judgments are the hallmark of many legal analyses. Their interpretation and critique are crucial for the conceptual foundations, evolutionary trends, and practical effects of EU migration law. At the same time, widespread focus on the Court of Justice coincides with a lesser interest in the inner workings, including inherent limitations and weaknesses. This chapter set out to lift the veil of judicial decision-making by introducing readers to the internal structure, procedural rules, and practical relevance of the CJEU in migration law. The organisational structure and thematic outlook invite judges to approach EU migration law as an integral part of the supranational legal order; the theoretical option of a specialised tribunal remains elusive for the time being. EU institutions and Member States have privileged access to the court room, while NGOs will only be heard officially when they are associated with a party to the proceedings. Closer inspection of the judicial output demonstrates that the Court serves as a constitutional court and as an administrative tribunal in parallel. Judgments on the constitutional foundations of the European project earned it a reputation of an ‘activist’ court, for 117 See Daniel Thym, ‘The Schengen Law’ (2002) 8 ELJ 218, 221–26. 118 See TFEU, art 15. 119 See ch 2.2.3.1. 120 See Regulation (EC) No 1049/2001 regarding public access to documents [2001] OJ L145/43; and Deirdre Curtin, Executive Power of the European Union (OUP 2009) ch 8. 121 See https://www.statewatch.org (accessed 1 March 2023).

Summary 95 instance with regard to Union citizenship. By contrast, the bulk of the rulings on migration law is defined by a thorough examination of the wording, the general scheme, or telos of secondary legislation. There is less dynamism, although the open-endedness of many provisions makes surprise outcomes possible. Moreover, the Court appeared to attach greater significance to the Charter in the early 2020s, which allows judges to correct the outcome of the legislative process. The preliminary reference procedure is the jewel in the crown of the European court architecture. An empirical inspection of the judicial output in the field of migration shows that 85 per cent of all rulings responded to questions by domestic courts. Narrow rules on standing are the flip side of the emphasis on preliminary references, thus limiting direct access by individuals. Infringement proceedings play a marginal role in the Commission’s practice, notwithstanding symbolically important action against ‘rebels’ who wilfully disrespect EU migration law. References by domestic courts are, also for individuals, the most effective way to obtain a judgment. It is problematic, therefore, that our empirical examination exhibits marked discrepancies in the practice of domestic courts. References from some countries, including Greece, rarely reach Luxembourg, while domestic courts from other Member States are recurring players. Similarly, there are manifest differences in the number of judgments on specific themes. While asylum jurisdiction and procedures, return, or family reunification are often dealt with, legislation on economic migration, visas, or reception conditions is less visible or virtually absent from the docket. That is one reason why alternative accountability mechanisms play an important role, especially in areas which judges have difficulties to get hold of. Cooperation with third states and external border controls are prime examples of the added value of non-judicial accountability instruments via the Ombudsman, parliamentary oversight, financial audits, or public discourse. It does not diminish the pivotal role of judges in Luxembourg to recognise that there are limitations to what supranational adjudication can achieve.

4

Interdisciplinary Perspectives and Methodology European migration law profoundly affects the lives of numerous individuals. Its analysis inevitably raises delicate questions of normative significance which preoccupy citizens, academics, and politicians. Moreover, state policies do not always succeed. Generous rules on the admission of highly qualified migrants will not necessarily translate into abundant blue card applications, and the EU institutions are trying hard to construct an asylum policy that works reasonably well in practice. Inspection of the legal rules alone does not allow us to comprehend underlying dynamics. To do so requires a basic knowledge of interdisciplinary perspectives, which come in diverse forms. The thematic breath of the interdisciplinary debate entails that there is not one sister discipline but multiple perspectives employing different methodologies. Our presentation will concentrate on those aspects which are particularly relevant. Some theories and research findings will be taken up elsewhere. Different conceptions of migrant integration, for instance, will be presented in Chapter 15.1.2 on settlement, and the interdisciplinary outlook on the institutions and the Court was discussed in Chapters 2 and 3. Most interdisciplinary discussions about migration do not usually focus on the EU. They often discuss state policies independent of the relative weight of domestic decisions and supranational legislation. Debates about how to improve supranational or domestic legislation benefit from an awareness of the driving forces behind migratory movements. Numerous ‘push’ and ‘pull’ factors at the micro-, meso-, or macro-level of analysis underlie the choice of destination and the decision whether to leave (4.1). Social scientists have coined the notion of ‘control gap’ to designate failure, on the part of Western democracies, to achieve policy objectives, notably in the field of asylum. Corresponding debates concern the role of diverse actors, public opinion, and individual agency. Their inspection enlightens the exploration of contextual factors influencing policy-making (4.2). Critical scholars will appreciate post-structural theory in the French tradition, which brings to the light ideological predispositions of the law as an instrument of government and critically examines the use of language (4.3). While the critique will often be external to the law, interdisciplinary research can occasionally support the reconstruction of the legal material from within. Doing so remains a formidable challenge. Academics can employ different methodologies ranging from contextual and interdisciplinary analyses to different facets of the continental tradition of doctrinal hermeneutics, which defines the supranational case law (4.4).

4.1 Drivers of Migratory Movements Public discourse, political debates, and academic analyses often refer to ‘migration’ as a seemingly uniform phenomenon. That is beneficial to identify overarching themes, such European Migration Law. Daniel Thym, Oxford University Press. © Daniel Thym 2023. DOI: 10.1093/oso/9780192894274.003.0005

Drivers of Migratory Movements 97 as the topics elaborated upon in the first part of this volume. At the same time, grouping together varied circumstances under the abstract heading of ‘migration’ can conceal differences and specificities. An Indian IT specialist applying for a blue card to work in Dublin is confronted with different legal rules and practical challenges than a Moldovan construction worker with a temporary residence permit for Bulgaria or the grandchildren of Turkish ‘guest workers’ who had moved to the Netherlands decades ago. EU migration law concerns diverse situations which are defined by distinct legal rules and factual dynamics. Even ostensibly uniform groups may have different backgrounds, as the example of asylum applicants arriving on the Italian island of Lampedusa illustrates: Tunisians typically escape economic hardship, Eritreans have often spent thousands of euros to flee from a repressive dictatorship, and Yemenis may have worked in the Libyan oil industry before deciding to leave the country during the civil war. Against this background, we cannot expect the social sciences to provide us with a simple formula determining the choice of destination and the decision whether to leave in the first place. There is not one theory but overlapping theories operating against a backdrop of distinct theoretical propositions and on the basis of divergent methodologies. Abstract references to ‘push’ and ‘pull’ factors are a shorthand for a continuum of numerous explanatory factors influencing the size and direction of migratory movements (4.1.1). Interdisciplinary studies have warned against the ‘sedentary bias’ which conceptualises migration as a simple sequence of departure, journey, and settlement. Migration—as human life in general— habitually goes through multiple episodes and can change over time (4.1.2). Family and ethnic networks, historically embedded corridors, and infrastructure are important factors shaping the volume and direction of movements, or the absence thereof (4.1.3). Of particular relevance for the legal analysis is the overlap of ‘voluntary’ and ‘forced’ migration, which contrasts with an ostensibly clear-cut distinction in the policy discourse and the legal material at the European and international levels (4.1.4).

4.1.1 Numerous ‘push’ and ‘pull’ factors Less than 4 per cent of the global population are estimated to be international migrants in the sense of habitually residing beyond the borders of the country of birth, thus excluding the second and third generation. The percentage has been surprisingly stable over the decades, growing from 2.3 per cent to 3.5 per cent between 1970 and 2020.1 Invocation of ‘push’ and ‘pull’ factors in countries of origin, destination, and transit is useful insofar as it supports the identification of multiple drivers of migration. They do not, however, translate into a quasi-mathematical formula that allows for precise predictions or the exact identification of the variables determining previous movements. Migration is almost always highly context-specific, and the social sciences apply diverse theories and methodologies. While some concentrate on economic considerations, others highlight social, political, cultural, or historical factors; quantitative surveys coexist with qualitative methods, such as interviews or ethnographic participatory observation.2 1 See World Migration Report 2022 (IOM 2021) ch 2; during the same period, absolute numbers have increased from 84 to 272 million as a result of population growth. 2 See Hein de Haas, Stephen Castles, and Mark J Miller, The Age of Migration (6th edn, Palgrave 2020) ch 3.

98 Interdisciplinary Perspectives and Methodology Economic theories were particularly influential in the early debate, which concentrated on rational cost-benefit calculations. Income differentials are an important explanation, although they will rarely be the sole or decisive factor.3 Remember that most people decide not to migrate despite massive global inequalities. We shall see in Chapter 18.4.1 on the external dimension that the simple idea of eradicating ‘root causes’ by means of economic development cannot be expected to work in a straightforward manner. It is not usually the very poor who migrate, since doing so requires financial resources and organisational skills. Human capital models of economic theory account for such contextual factors; they conceive of migration as an investment individuals expect to pay off in the long-run, for either themselves or the families supporting them in the hope for financial remittances. Of course, plenty of other features have to be considered as well.4 Chapter 14.4.1 on economic migration will highlight several factors studies have found to be significant, such as language, the political and social climate, tax levels, or families and friends. Even sunshine can be relevant, notably for the rich and highly skilled, as demonstrated by pensioners residing in Portugal or IT specialists working in California. One element social scientists often do not pay much attention to is the law. That ignorance can be a useful challenge to the intuitive assumption, on the part of legal experts, that the law is a decisive factor. For highly skilled economic migrants, in particular, legal pathways are a necessary but insufficient variable; generous entry rules alone will not necessarily attract the best and the brightest. In the field of asylum, however, the reverse conclusion holds true, to a certain extent at least. While some are deterred by visa requirements, carrier sanctions, and border controls, others find irregular channels. It would be unrealistic to expect states to stop migration, even though the impact of policies cannot usually be measured precisely. The counterfactual question of how many people would decide to go the Europe if visa requirements and entry restrictions were abandoned cannot be answered in a methodologically satisfactory manner. One element obscuring the impact of legal rules is the comparatively low level of information on the part of many migrants. Empirical studies show that forced migration is often defined by diffuse knowledge and spontaneity; information obtained via social media or word-of-mouth marketing can be significant, irrespective of whether it is adequate.5 Moreover, state practices are complemented by other push and pull factors, whose relative weight fluctuates over space and time.6 Several of them will be discussed on the pages that follow. A prominent argument, in both academic writing and the policy debate, is the ‘welfare magnet’ hypothesis, according to which a high level of social benefits will attract fewer qualified migrants, while discouraging the qualified who prefer to pay lower taxes.7 It has been discussed controversially, with multiple studies finding some supportive indicators and many counterarguments.8 The ‘welfare magnet’ idea is generally considered to be simplistic 3 cf George Jesus Borjas, ‘The Economics of Immigration’ (1994) 32 J Econ Lit 1667. 4 See Douglas S Massey and others, ‘Theories of International Migration’ (1993) 19 Popul Dev Rev 431. 5 See Heaven Crawley and Jessica Hagen-Zanker, ‘Deciding Where to Go: Policies, People and Perceptions Shaping Destination Preferences’ (2019) 57 Int Migr 20; and Joris Schapendonk, ‘Turbulent Trajectories’ (2012) 2 Societies 27. 6 See Eric Neumayer, ‘Asylum Destination Choice’ (2004) 5 European Union Politics 155; and Antonia Scholz, Warum Deutschland? (Forschungsbericht 19, BAMF 2013). 7 See George Jesus Borjas, ‘Immigration and Welfare Magnets’ (1999) 17 J Lab Econ 607. 8 See Corrado Giulietti and Jackline Wahba, ‘Welfare Migration’ (IZA Discussion Papers No 645, Institute of Labor Economics, March 2012).

Drivers of Migratory Movements 99 insofar as the level of benefits in home, transit, and destination countries may be one push or pull factor among many but not necessarily the decisive one. Migrants and refugees will rarely leave West Africa or the Middle East with the firm intention of cashing in on welfare payments; their primary aim is for economic success and personal security, with the welfare state as only one consideration amongst others.9 In addition, welfare policies may influence the choice of destination within Europe, even though asylum seekers will not always distinguish clearly between social benefits and public service quality generally.10 Politicians often support welfare cuts, since it is one of the few ‘pull’ factors they control, unlike, for instance, economic growth. Moreover, they feed a narrative of ‘abuse’ and ‘bogus’ applications that can prepare, as we shall see, the ground for restrictions. For our purposes, the debate about the ‘welfare magnet’ reiterates that push and pull factors are not a simple formula. We should acknowledge that the situation in Europe is complemented by individual and structural elements elsewhere: civil wars, political oppression, and lack of economic prospect or money. Such ‘hard’ factors are complemented by ‘soft’ elements. Among the 97 per cent of the world population that does not move, many prefer living with family and friends in a society where they feel at home despite massive problems: cultural identity, risk-aversion, age, and fear are additional factors.11 In short, there are multiple driving forces.

4.1.2 Migration as a process over time Political debates and academic analyses have been defined by what critics call ‘methodological nationalism’ for decades. Crucially, this critique is not about nationalism in the sense of favouring the interests of one state. It concerns, rather, the theoretical model of territorial statehood that underlies many academic analyses and policy debates as an axiomatic assumption, while cross-border movements and transnational social ties are treated as an exception that proves the rule. Moreover, migration is perceived of as a straightforward sequence of departure, journey, and settlement.12 Such ‘sedentary bias’13 tends to ignore elements of persisting transnationalism, both in terms of recurring physical movements and contacts with colleagues, friends, and families abroad. Moreover, migration is often multidirectional, with no predetermined end result. Decisions about geographical preferences and permanent settlement may change over a life course, and circular movements between states can be a choice some prefer to stasis.

9 See Jeremy Ferwerda and Justin Gest, ‘Pull Factors and Migration Preferences’ (2021) 55 IM Rev 431; and Ole Agersnap, Amalie Sofie Jensen, Henrik Kleven, ‘The Welfare Magnet Hypothesis’ (Working Paper No 26454, NBER, November 2019). 10 See Petra W de Jong and Helga AG de Valk, ‘Intra-European Migration Decisions and Welfare Systems’ (2020) 46 JEMS 1773, 1781–86. 11 See generally William Samuelson and Richard Zeckhauser, ‘Status Quo Bias in Decision Making’ (1988) 1 J Risk & Uncertainty 7; and for migration Kerilyn Schewel, ‘Understanding Immobility. Moving Beyond the Mobility Bias in Migration Studies’ (2020) 54 IM Rev 328. 12 See the classic critique by Andreas Wimmer and Nina Glick Schiller, ‘Methodological Nationalism, the Social Sciences, and the Study of Migration’ (2003) 37 IM Rev 576; see also Nina Glick Schiller and Noel B Salazar, ‘Regimes of Mobility Across the Globe’ (2013) 39 JEMS 183. 13 Oliver Bakewell, ‘Keeping Them in Their Place’ (IMI Working Paper 8, Oxford International Migration Institute 2007); and Daniel Thym, ‘Migrationsfolgenrecht’ (2017) 76 Veröffentlichungen der Vereinigung Deutscher Staatsrechtslehrer 169, 169–73.

100 Interdisciplinary Perspectives and Methodology The EU’s single market illustrates the significance of temporary migration. While some follow resolute plans, others relocate temporarily as students, workers, or family members— with intentions about the length of stay often being vague early on.14 Germany, for example, benefits from the circular migration of Romanian seasonal workers and Polish women who care for elderly family members in private households; several hundred thousand Union citizens enter and leave the country each year.15 Similarly, the majority of ‘guest workers’ returned home, most of them voluntarily after having earned money and acquired new skills. Others stayed, also because the ban on further recruitments closed the door for circular migration; moreover, the stagnating economy in Turkey and the military coup of 1980 rendered return unattractive.16 Historians highlight that even the archetypical period of ‘emigration’ from Europe to the United States during the late nineteenth and early twentieth centuries saw significant numbers of returns.17 Social scientists have countered the entrenched ‘methodological nationalism’ by proclaiming ‘transnationalism’ and ‘mobility’ new paradigms.18 Such analyses fit well into broader globalisation processes and will be of intuitive appeal to many experts in migration law. Yet, such paradigmatic revolution runs the risk of replicating the pitfalls of earlier debates by not questioning the conceptual underpinnings of both mobility and immobility.19 There can be a ‘mobility bias’ in the same sense as others are trapped in a ‘sedentary bias’, also considering the high percentage of people who do not migrate. Surveys in West Africa, for instance, have repeatedly found a staggeringly widespread aspiration to move, which contrasts with the comparatively small number of actual mobility.20 Mobility and immobility are both realities, and we should not generally prioritise the one over the other theoretically or in the research design. The example of asylum applicants challenges one-sided assumptions of migration as a simple sequence of departure, journey, and settlement. The term ‘transit’ suggests that movements are following a predetermined plan. That need not be the case. More than three million Syrians were staying in Turkey at the time of writing, who did not board vessels bound for Greece for the most part. Even those doing so will not necessarily have planned this trajectory when leaving Syria.21 Chapter 18.4.3 will mention that Morocco, Turkey, and Libya (before the civil war) are not just ‘transit’ countries but destinations in their own right; not every foreigner residing there wants to go to Europe, although preferences may, of course, change over time. The same applies to secondary movements within the European Union, which can be the result of experiences in countries of first arrival.22 Not only individual intentions may change. Some migrants are prevented from pursuing their journey by 14 See Renee Luthra, Lucinda Platt, and Justyna Salamońska, ‘Types of Migration’ (2018) 52 IM Rev 368. 15 In 2019 (before the Covid-19 pandemic), almost 600,000 entries contrasted with 430,000 exits; see Johannes Graf, Freizügigkeitsmonitoring. Jahresbericht 2019 (BAMF 2020). 16 See Cord Pagenstecher, ‘Die “Illusion” der Rückkehr’ (1996) 47 Soziale Welt 149. 17 See Wimmer and Glick Schiller (n 12) 586–92. 18 See Thomas Faist, Margit Fauser, and Eveline Reisenauer, Transnational Migration (Polity 2013); and Mimi Sheller and John Urry, ‘The New Mobilities Paradigm’ (2006) 38 Environ Plan A 207. 19 See Adrian Favell, ‘Rebooting Migration Theory’ in Caroline B Brettell and James F Hollifield (eds), Migration Theory (2nd edn, Routledge 2008) 259, 270–71. 20 See Joint Research Centre, Many More to Come? Migration from and within Africa (Commission 2018) 17–18. 21 See Franck Düvell, ‘The “Great Migration” of Summer 2015’ (2019) 45 JEMS 2227; and generally Justin Schon, ‘Focus on the Forest, not the Trees’ (2015) 28 J Refugee Stud 437. 22 See Markus Wagner, Jimy Perumadan, and Paul Baumgartner, ‘Secondary Movements’ (CEASEVAL Research on the CEAS No 34, 2019); and (Dutch) Advisory Committee on Migration Affairs, Secondary Movements of Asylum Seekers in the EU (ACVZ 2019).

Drivers of Migratory Movements 101 border controls or encampment, for instance in hotspots on the Greek islands.23 Limbo and entrapment are an integral part of the migratory experience in the same way as movement and the modification of original ideas.

4.1.3 Intermediate level: networks, regimes, and infrastructures Social scientists often distinguish the micro-, meso-, and macro-level of analysis. While the micro-perspective concentrates on personal aspirations and capabilities, macro-theories highlight abstract features beyond the control of individuals, such as global inequalities, legal rules, or the structure of the labour market.24 Both micro-and macro-elements struggle to explain the profound asymmetry of many movements: specific countries of origin (and cities or regions within them) often see considerably higher rates of emigration than neighbouring states with similar micro-and macro-characteristics. Migration processes tend to become partly self-perpetuating, with ‘pioneers’ venturing to new destinations that may be embedded over time resulting in what is often called—somewhat pejoratively from today’s perspective—‘chain migration’.25 Little Italy and Chinatown in Manhattan bear testimony to earlier episodes of feedback loops between pioneers and followers, as do neighbourhoods in Paris, Lisbon, or Brussels with a high percentage of residents whose families came from the former colonies some time ago. Three meso features help to explain the entrenched asymmetries of migratory movements. First, networks have been identified as an essential component. Pioneers serve as anchors and role models for family and kin, providing information on the journey and supporting newcomers after arrival.26 Such networks are relevant for economic migration and refugees alike. Afghans or Ukrainians entering the EU in the 2020s are more likely to aim to go to places, by means of irregular movement if need be, where compatriots, friends, and relatives are already staying. In the same way, family reunification in accordance with the Family Reunification Directive 2003/86/EC can be perceived as a specific expression of legally sanctioned ‘chain migration’. Nevertheless, we not to conceive of networks as an ostensibly unstoppable phenomenon. They interact with other push and pull factors, which may facilitate or undermine self-perpetuating effects.27 Drivers of migration are almost always highly complex and inter-dependent. Secondly, movements are often sustained by economic, cultural, and political structures beyond the direct control of individuals or states. Historical and structural theories emphasise the significance of ‘migration regimes’ which have developed over time.28 Chapter 1.1 mentioned two migration regimes: labour migration from Italy to the industrial heartland of the coal and steel industry throughout the twentieth century and colonial immigration towards France, Belgium, or the Netherlands. Another example is regional migration 23 See Tobias G Eule and others, Migrants before the Law (Palgrave 2019) ch 5. 24 See de Haas and others (n 2) 43. 25 John S MacDonald and Leatrice D MacDonald, ‘Chain Migration, Ethnic Neighborhood Formation and Social Networks’ (1964) 42 Milbank Mem Fund Q 82. 26 See Faist, Fauser, and Reisenauer (n 18) ch 3; and Paul Collier, Exodus: How Migration Is Changing Our World (OUP 2013) ch 2. 27 See Hein de Haas, ‘The Internal Dynamics of Migration Processes’ (2010) 36 JEMS 1587. 28 See John Salt, ‘A Comparative Overview of International Trends and Types, 1950–80’ (1989) 23 IM Rev 431; and Jan Lucassen, Migrant Labour in Europe, 1600–1900 (Croom Helm 1987).

102 Interdisciplinary Perspectives and Methodology patterns in western, southern, and eastern Africa across artificially drawn colonial borders, which account for the majority of cross-border movements south of the Sahara. Again, migration regimes interact with other factors supporting or hampering mobility. Late colonial migration to Western Europe came to an end as a result of policy change, and labour migration to the coal and steel industry did not survive the decline of these sectors. Historically, the Mediterranean has been an arena for commercial, human, and cultural exchange29—in contrast to today’s perception as an external border. Thirdly, mobility depends on infrastructure. Movements across longer distances are facilitated by cheaper transportation, such as the construction of railways and the introduction of steamships across the Atlantic in the late nineteenth century, or the arrival of cheap air travel and mobile phone communication more recently. At the same time, states use infrastructure to thwart movement. Telling examples are the equipment of Frontex and databases, to be traced in Chapters 8 and 9. In response to these restrictions, migrants often rely on ‘smugglers’ to cross borders, as our comments on migrant agency will illustrate. It is a general feature of infrastructure that it often seeps into the background and receives little consideration as a result, even though interdisciplinary analyses have turned their attention to them recently.30

4.1.4 Continuum of ‘voluntary’ and ‘forced’ migration The distinction between ‘voluntary’ and ‘forced’ migration is firmly embedded in the legal analysis. It underlies the Treaty regime with two distinct legal bases for asylum (Article 78 TFEU) and legal migration, including return (Article 79 TFEU). The distinction between ‘refugees’ and ‘migrants’ similarly defines the international debate: the Refugee Convention and UNHCR deal with forced migration, while the International Organization for Migration (IOM) and the International Labour Organization (ILO) cover voluntary movements for economic and other purposes. Chapter 1.1.3 explained that this binary distinction was not a foregone conclusion but developed during the first half of the last century. Today, however, it is so deeply ingrained in the legal material that legal experts tend to take it for granted, also considering that ethical reasons support dealing with those fleeing severe hardship in a different way. Social scientists emphasise that the complex interaction of multiple push and pull factors means than motives can rarely be disentangled neatly. ‘Forced’ and ‘voluntary’ migration are ideal-typical antipodes of a continuum of overlapping personal characteristics and macro-features. Poverty and authoritarian government may qualify the ‘voluntary’ character of labour migration in the same way as the aspiration of a better life can be one factor why refugees leave a country, although others do not do so.31 The picture becomes even more complex when we consider migratory movements over time. Afghans born in refugee settlements in Iran may never have been to their ‘home’ state, although hypothetical treatment there determines whether they will receive international protection or not; similarly, 29 See Braudel Fernand, La Méditerranée: L’espace et l’histoire (Arts et Métiers Graphiques 1977). 30 See Sheller and Urry (n 18) 210–13; and Biao Xiang and Johan Lindquist, ‘Migration Infrastructure’ (2014) 48 IM Rev S122. 31 See Jeremy Hein, ‘Refugees, Immigrants and the State’ (1993) 19 Ann Rev Sociol 43; and Anthony H Richmond, ‘Sociological Theories of International Migration’ (1988) 36 Curr Sociol 7.

Significance of State Measures 103 Syrians leaving Turkey after having resided there for five years will rarely do so out of immediate fear of persecution.32 Refugee status determination concentrates on selected aspects, thus giving preference to some elements over others. In this overall context, interdisciplinary studies tend to employ the term ‘mixed migration’ to designate the overlap between numerous push and pull factors. ‘Mixed migration’ in this sense concerns the absence of clear-cut differentiation of the drivers of individual decisions whether to leave and where to go.33 By contrast, UNHCR and the policy discourse habitually speak of ‘mixed migration’ when people with and without protection needs form two more or less distinct subgroups of cross-border movements.34 A paradigmatic example are Eritreans and Tunisians sitting side by side on a boat arriving in Lampedusa. The UNHCR worries that recognising the motivational overlap may undermine the willingness of states to protect refugees. Indeed, the policy discourse is full of examples of branding people with protection needs as ‘economic’ or ‘illegal’ migrants, for instance Syrians who move on to Greece after having resided in Turkey for several years. As described in the introduction, this contribution employs the term ‘migration/migrant’ as an overarching category comprising voluntary and forced migration. Underlying reasons are not directly concerned with the continuum of ‘forced’ and ‘voluntary’ movements from an interdisciplinary perspective, let alone the policy discourse on mixed migration. Rather, our choice of terminology presents an heuristic device to identify overarching themes of the legal analysis and feedback loops between migration law instruments. In some circumstances, however, interdisciplinary findings about the overlap of ‘voluntary’ and ‘forced’ migration will be of direct relevance for the legal analysis, as Chapter 13.5.3 on asylum will examine for the potential extension of the notion of persecution to economic hardship and ‘climate refugees’.

4.2 Significance of State Measures EU institutions aim ‘at ensuring . . . the efficient management of migration flows’.35 That objective remains counterfactual insofar as legislation will never coincide fully with real- life events. Interdisciplinary debates have addressed the relative weight of state measures from different perspectives. Normative theories of moral and political philosophy develop abstract arguments about how to justify borders (4.2.1). Political scientists engage in empirical studies about the ‘control gap’, thus trying to unearth reasons why governments fail to deliver on self-declared control imperatives, including the role of courts (4.2.2). Various disciplines examine the importance of public opinion (4.2.3). A defining feature of recent decades has been the ‘denationalisation’ of migration policy, through the involvement of diverse actors at local, supranational, global, and transnational levels (4.2.4). Ethnographers emphasise that migrants are not just the object of legal rules but individual agents navigating their way with creativity (4.2.5).

32 See Heaven Crawley and Dimitris Skleparis, ‘Refugees, Migrants, Neither, Both’ (2018) 44 JEMS 48. 33 See Nicholas Van Hear, ‘Managing Mobility for Human Development. The Growing Salience of Mixed Migration’ (Human Development Research Paper 2009/20, April 2009). 34 See UNHCR, ‘Refugee Protection and Mixed Migration. A 10-Point Plan of Action’ (December 2006). 35 TFEU, art 79(1).

104 Interdisciplinary Perspectives and Methodology

4.2.1 Normative background: the open borders debate Experts in migration law often have a good knowledge of human rights and tend to subscribe to universalist visions of social justice and political philosophy. That is perfectly legitimate and corresponds to a strand in the theoretical debate which highlights the equal moral worth of human beings and their joint possession of the surface of the world in the tradition of Immanuel Kant. From this perspective, state sovereignty and migration control appear suspicious precisely because they deviate from the starting point of normative universalism—a position that gained ground with the advance of globalisation in the 1990s. Theories of global justice addressed an important lacuna, since sovereign statehood had often been treated as an axiomatic absolute previously. A prominent example is the liberal philosopher John Rawls whose ‘veil of ignorance’ concerned particularistic communities to start with, not the world as a whole.36 Political theorists had questioned the legitimacy of migration control before the global justice debate. Positions put forward roughly reflected the contrast between ‘liberalism’ and ‘communitarianism’, which had defined Western political theory until the end of the cold war. Joseph Carens famously advanced a (liberal) case for open borders,37 while David Miller defended a (communitarian) vision of statehood.38 Studies thereafter have taken up these arguments from diverse perspectives and developed sophisticated arguments.39 Legal experts should not expect normative theory to deliver straightforward guidance on how to deal with specific questions, since many arguments remain abstract or build upon theoretical assumptions that are not universally accepted.40 Readers should also be aware of terminological false friends. An instructive example is Hanna Arendt’s much cited ‘right to have rights’ that is not primarily concerned with legal guarantees to be enforced by courts, as explained in Chapter 5.2.2 on human rights. Theoretical debates in recent years have concentrated on opening up the normative black box the concept of state sovereignty had traditionally been. They recognised that sovereignty may present itself as a proxy for complex arguments about the benefits of self- government and particularistic communities.41 Any analysis of these questions will inevitably be confronted with disputes about intricate questions to which no easy normative or empirical answers exists: the relationship between migration and redistributive policies in welfare states;42 the weight of culture or, more generally, societal self-perception as a

36 See John Rawls, The Law of Peoples (Harvard UP 2001); and Seyla Benhabib, The Rights of Others (CUP 2004) 74–94. 37 See Joseph H Carens, ‘Aliens and Citizens. The Case for Open Borders’ (1987) 49 Rev Politics 251; and Joseph H Carens, The Ethics of Immigration (OUP 2013) ch 1. 38 See David Miller, Strangers in Our Midst (Harvard UP 2016), in line with previous publications; and also Michael Walzer, Spheres of Justice (Basic Books 1983). 39 See Sarah Fine and Lea Ypi (eds), Migration in Political Theory (OUP 2016); and Christopher Heath Wellman and Phillip Cole, Debating the Ethics of Immigration (OUP 2011). 40 See Thomas Spijkerboer, ‘A Distributive Approach to Migration Law’ in Roland Pierik and Wouter Werner (eds), Cosmopolitanism in Context (CUP 2010) 249. 41 See Alexander Somek, The Cosmopolitan Constitution (OUP 2014); and Margaret Moore, ‘Cosmopolitanism and Political Communities’ (2006) 32 Soc Theory & Prac 627; see also Daniel Thym, ‘Citizens and Foreigners in EU Law’ (2016) 22 ELJ 296, 311–15. 42 See David Abraham, ‘Immigrant Integration and Social Solidarity in a Time of Crisis’ (2014) 1 Crit Hist Stud 215; and Markus ML Crepaz, ‘Rumors that Diversity is the Death of the Welfare State are Greatly Exaggerated’ in Gary P Freeman and Nikola Mirilovic (eds), Handbook on Migration and Social Policy (Edward Elgar Publishing 2016).

Significance of State Measures 105 justification for closure;43 or the distinction between access to the territory and treatment thereafter.44 Some of these arguments will surface elsewhere in this book, for instance with regard to the welfare state and the notion of integration in Chapters 14.1.6 and 15.1.2 on legal migration and settlement.

4.2.2 Explaining the ‘control gap’: the liberal paradox While legal experts intuitively consider state policies to be decisive factors, economic analyses, in particular, are defined by widespread ignorance of the regulatory environment. We are confronted with a somewhat perplexing contrast between scholarship describing states as omni-powerful actors and the alternative emphasis on control failure and individual agency.45 Political scientists have described the distinct experience of the classic destination countries in the Western hemisphere after the Second World War under the heading of ‘control gap’ to designate the widespread perception that states failed to deliver on policy objectives.46 The ‘control gap’ debate was fed by the experience of ‘guest worker’ schemes resulting in permanent settlement, the ineffectiveness of return, the self-reinforcing effects of family reunification, and the pertinence of irregular entry and stay. James Hollifield coined the term ‘liberal paradox’ to resolve the puzzle: the liberal normative self-image prohibited Western democracies from implementing the policies that would be necessary to realise the official policy objectives.47 EU integration played a prominent role in early accounts, which gained ground during the early 1990s when the move towards political Union, the prospect of enlargement, and dynamic court judgments left observers with the impression that the supranational institutions were about to revolutionise migration law. Free movement of Union citizens and the case law of the ECtHR were often cited as precursors of novel forms of post-or transnational membership.48 Others highlighted that the liberal paradox was primarily an internal phenomenon, with domestic legislation, constitutional norms, and national courts curtailing governmental preferences.49 Comprehensive and longitudinal perspectives hardly support any of these black-and-white accounts. We have seen in Chapter 1.2 that Treaty amendments established a distinct legal framework for third country nationals differing from the freedom-enhancing rationale of Union citizenship. At the same time, Chapter 2 demonstrated that EU institutions respond to diverse impulses. The liberal paradox presents itself as a combination of diverse factors whose relative weight may differ over space and time and depending on the subject matter: supranational 43 See Liav Orgad, The Cultural Defense of Nations (OUP 2015); and Samuel Scheffler, ‘Immigration and the Significance of Culture’ (2007) 35 Philos Pub Aff 93. 44 See Carens, Ethics (n 37); and Miller (n 38). 45 See generally James F Hollifield and Tom K Wong, ‘The Politics of International Migration’ in Brettell and Hollifield (n 19) 227, 235–45. 46 See Wayne Cornelius, Philip Martin, and James F Hollifield (eds), Controlling Immigration (1st edn, Stanford UP 1994). 47 See James F Hollifield, Immigrants, Markets and States (Harvard UP 1992) ch 1. 48 See Yasemin Soysal, Limits of Citizenship (University of Chicago Press 1994) ch 8; and Saskia Sassen, Losing Control? (Columbia UP 1996) 88–99. 49 See Christian Joppke, ‘Why Liberal States Accept Unwanted Immigration’ (1998) 50 World Polit 26; and Virginie Guiraudon, ‘The Marshallian Triptych Reordered’ in Michael Bommes and Andrew Geddes (eds), Immigration and Welfare (Routledge 2000) 72.

106 Interdisciplinary Perspectives and Methodology developments may stimulate reform in some Member States, while replicating domestic policies elsewhere; judges will promote the rights of migrants in some cases, while siding with government in others; legislation can advance migrants rights in the same way as courts.50 Chapter 3.2 showed that the CJEU makes an effort to balance countervailing interests, and Chapter 5.3 will find similar tendencies with regard to the ECtHR. Judges play a critical role in upholding the rights of migrants, yet their function is not intrinsically linked to the elimination of control imperatives. Interdisciplinary studies have highlighted other factors that help to explain the ‘control gap’. They will be discussed below with regard to the structure of domestic politics, migrant agency, and international cooperation. Moreover, some authors emphasise that the policy outcome can be explained, in part at least, as the functional continuation of sectoral policies. The inclusionary logic of the welfare state commanded that foreigners received social rights even though doing so might complicate migration control; the neoliberal rationale of the market economy supported the employment of those staying irregularly; and constitutionalism promoted human rights.51 In other words, the practical effects of migration policy need not necessarily be the result of migration-specific choices. The highly stratified character of modern societies can create feedback loops on the basis of policy preferences which do not concern migration primarily.

4.2.3 Public opinion and intergroup threat perceptions Interdisciplinary studies have highlighted a mismatch between sceptical public opinions and the moderately liberal policy output of Western democracies before the millennium change, for instance with regard to ‘guest workers’, colonial migration, and family reunification.52 Empirical surveys demonstrate that the views of the population has been surprisingly stable over the decades.53 That discrepancy constitutes a puzzle many social scientists have tried to rationalise. For European migration law, the depoliticised character of decision- making provides a first explanation, since the supranational institutions had traditionally been shielded from intense public scrutiny, as we have seen in Chapter 2.1.3 on the institutional practice. They advanced policies that might not have been adopted domestically. Experts in political economy emphasise additional domestic reasons. While the benefits of migration (such as cheap labour for employers and reunited families for migrant communities) are concentrated and can be reaped in the short term, potential costs and side-effects (such as competition on the labour market, increased welfare spending, or— controversially—cultural diversity) are diffuse and often occur in the long run. Politicians have traditionally been more responsive to better organised advocates of migration than to

50 See Daniel Thym, ‘Supranational Courts in Europe: A Moderately Communitarian Turn in the Case Law on Immigration and Citizenship’ (2021) 47 JEMS 4534; and Randall Hansen, ‘Globalization, Embedded Realism, and Path Dependency’ (2000) 35 Comp Pol Stud 259. 51 See Gary P Freeman, ‘Immigrant Incorporation in Western Democracies’ (2004) 38 IM Rev 945; and Christina Boswell, ‘Theorizing Migration Policy’ (2007) 41 IM Rev 75, 87–95. 52 See Jeannette Money, Fences and Neighbours (Cornell UP 1999). 53 See Anthony F Heath and Lindsay Richards, ‘Contested Boundaries’ (2020) 46 JEMS 489; and Alan E Kessler and Gary P Freeman, ‘Public Opinion in the EU on Immigration from Outside the Community’ (2005) 43 JCMS 825.

Significance of State Measures 107 the sceptical general public.54 Moreover, debates do not fit easily into the traditional left- right spectrum. Employer organisations and centre right parties will oppose cultural diversity but may support labour mobility, whereas trade unions and the centre left will support non-discrimination, while being sceptical of labour market liberalisation.55 In Europe, cultural aspects were and are influential. Experts in social psychology use ‘intergroup threat theory’ to analyse developments, while recognising that the definition of the relevant groups is socially constructed and, hence, subject to change.56 ‘Migrants’ or ‘Muslims’ are prime examples of out-groups in the contemporary European discourse, from which the general public tends to distinguish itself. Crucially, social psychology examines how perceptions of threat can increase—or decrease—tensions. Perceptions of threat can be either realistic (economic well-being, physical security) or symbolic (identity, value systems) and concern the individual level or society as a whole.57 Considerable research has applied these abstract findings to the European context to understand how and for which reasons perceptions of different migrant groups differ over space and time. For our purposes, ‘intergroup threat theory’ can serve as a bridge connecting the debate in the social sciences to critical studies on the use language, mentioned below, and our previous conclusion about the restrictive effects of politicisation, presented in Chapter 2.1. Terrorist attacks or violent crime committed by a tiny minority of migrants can feed an impression of latent threat—as do references to ‘waves’ or images of individuals ‘storming’ border fences. Populist parties exploit these images, thus nurturing a sense of ‘loss of control’. Moderate politicians find it difficult to counter such discursive tactics, let alone set the agenda with a counter-narrative. A potential, although double-edged, antidote can be visible forms of state control. Strengthening Frontex, reducing social benefits, or buttressing return will not necessarily deliver the policy output politicians promise, but it can send ‘control signals’.58 Politicians employ the element of symbolic closure to guide the public discourse into calmer waters.

4.2.4 Multiple actors of migration governance As a matter of principle, EU migration law follows classic administrative paradigms of hierarchical command and, if need be, coercive law enforcement. Softer forms of governance exist, for instance for migrant integration, but even there mandatory rules define the policy debate. Think of pre-departure language tests. Private actors can be relevant, such as companies sponsoring the stay of researchers or external service providers supporting visa processing, but such examples of ‘public-private partnership’ take place in the shadow of 54 See Gary P Freeman, ‘Modes of Immigration Politics in the Liberal Democratic State’ (1995) 29 IM Rev 861, 882–86; and Collier (n 26) chs 3–4. 55 See James Hampshire, The Politics of Immigration (Polity Press 2013) chs 2–3. 56 See Eva GT Green and Christian Staerklé, ‘Migration and Multiculturalism’ in Leonie Huddy and others (eds), The Oxford Handbook of Political Psychology (2nd edn, OUP 2013) 852. 57 See Walter G Stephan, Oscar Ybarra, and Kimberly Rios, ‘Intergroup Threat Theory’ in Todd D Nelson (ed), Handbook of Prejudice, Stereotyping, and Discrimination (2nd edn, Psychology Press 2016) 255. 58 See James F Hollifield, Philip Martin, and Pia M Orrenius, ‘The Dilemmas of Immigration Control’ in James F Hollifield and others (eds), Controlling Immigration (3rd edn, Stanford UP 2014) 3, 27; and Chris F Wright, ‘How Do States Implement Liberal Immigration Policies?’ (2014) 27 Governance 397.

108 Interdisciplinary Perspectives and Methodology compulsory legislation. With regard to the instruments discussed in this volume, migration law essentially presents itself as a conventional area of administrative top-down command and enforcement.59 Other disciplines support more ambivalent conclusions about how the contents of the law is being applied in practice. From such standpoints, EU migration law can be described as an expression of ‘governance’ comprising street-level agency, private parties, assorted transnational networks, and international bodies. ‘Governance’ became a catchword to describe such interdisciplinary analyses that transcend classic forms of top-down command and enforcement.60 Research in this tradition can be used to complement the ‘top- down’ legal analysis with the ‘bottom-up’ perspective of other disciplines. Doing so does not change the contents of the law, but it unearths valuable insights into how the law in the books translates into law in action. A classic approach of sociolegal research are case studies on the work of ‘street-level bureaucrats’.61 Telling examples are decision-making in asylum cases and the lived experience of visa practices in consulates abroad.62 State agents may interpret the legal framework creatively either to develop practical solutions for the benefit of migrants or to circumvent obligations. Sociolegal studies also depict the impact of individuals on legislative processes and court proceedings. We have seen in Chapter 2.3.6 on the institutional practice that diverse private actors, including NGOs, seek to influence the legislative debate or compete for lucrative contracts on border security. Chapter 3.3.4.2 demonstrated the potential of strategic litigation. Multiple actors are active at the international plane: UNHCR advises states how to apply the Refugee Convention; private vessels perform search and rescue in the Mediterranean; public and private bodies implement development projects; Moroccan border guards receive equipment and financial support from the EU budget; the firm Western Union has the largest market share for the transfer of financial remittances; and airlines are wary of the threat of carrier sanctions. These examples of transnational and international migration governance will be discussed in the relevant sectoral chapters throughout the second part of this book. While initial commentators had perceived globalisation to undermine migration control,63 there is an alternative reading. International cooperation can be presented as a response to bridge the ‘control gap’. States understand that many push and pull factors are beyond their direct reach, and they try to increase leverage by means of international cooperation. Doing so also allows them to diminish the ‘liberal paradox’, since international cooperation will not always be subject to human rights law and public scrutiny. Chapter 2.1 illustrated that the early phase of EU migration law can be described as ‘venue shopping’, with interior ministries dominating the policy agenda. Chapter 18 will explain that recent years have witnessed the externalisation of migration control to third states. States can be effective in trying to regain control.

59 See Daniel Thym, Migrationsverwaltungsrecht (Mohr Siebeck 2010) 31–48. 60 See David Levi-Faur, The Oxford Handbook of Governance (OUP 2012). 61 See Michael Lipsky, Street-Level Bureaucrats (Russell Sage 2010). 62 See Eule and others (n 23) chs 3–4; and Federica Infantino, ‘How Does Policy Change at the Street Level?’ (2021) 47 JEMS 1028. 63 See Saskia Sassen, A Sociology of Globalisation (WW Norton 2007) ch 5; and Stephen Castles, ‘The Factors that Make and Unmake Migration Policies’ (2004) 38 IM Rev 852, 861–65.

Significance of State Measures 109

4.2.5 Individual migrant agency Ethnographic research was instrumental in contrasting the claim to law enforcement with the practical experience of migrants. Third country nationals are actors with a certain degree of agency navigating their ways forwards.64 Emphasis on individual agency in ethnographic research resonates with interdisciplinary ‘mobility studies’, which criticise the sedentary stasis of methodological nationalism.65 It also overlaps with theoretical debates about political contestation as the basis for politics and rights, amongst others by Hanna Arendt.66 Finally, migrant agency contextualises the description of migration law as a purportedly omni-powerful instrument of repressive government in the Foucauldian tradition on the pages that follow. ‘Border studies’ have proven particularly productive, probably because the complexity and occasional obscurity of the factual situation on the ground entails better opportunities for circumventing state action.67 Hotspots, the ‘jungle’ in the French city of Calais from where migrants try to reach the UK, and irregular movements across the Western Balkans reveal significant degrees of migrant agency, thus calling into question the dystopia of ‘fortress Europe’.68 The evolution of control policies, traced in Chapters 11 and 12, can even be described as a sort of ‘cat-and-mouse game’:69 individuals evade restrictive instruments with innovative tactics, and states respond with another set of control measures.70 Irregular migrants residing within the territory similarly use different strategies to optimise their situation by means of informal work, marriage, or regularisation.71 Such accounts are stimulating to read precisely because they challenge conventional descriptions of state sovereignty in light of the lived experience of migrants. At the same time, one should be careful not to overstate, or even celebrate, ostensibly heroic episodes of migrant agency. Their action is habitually driven by the fear of persecution or economic hardship, embedded in highly unequal power relations, and accompanied by personal sacrifice and suffering.72 What is more, agency will not always succeed. Encampment, loss of life, and harsh poverty define the experience at the external borders in the same way as individual agency. A case in point is the ambivalent role of ‘smuggling’ and other businesses irregular migrants rely upon for diverse purposes ranging from informal employment to financial transfers. Smuggling will be perceived a useful ‘service’ by some, while others will experience exploitation, corruption, or violence.73 The EU response 64 See Dawn Chatty, ‘Anthropology and Forced Migration’ in Elena Fiddian-Qasmiyeh and others (eds), The Oxford Handbook of Refugee & Forced Migration Studies (OUP 2014) 74; and Irene Bloemraad, ‘Theorising the Power of Citizenship as Claims-Making’ (2018) 44 JEMS 4. 65 See n 18 and accompanying text. 66 See ch 5.2.2. 67 See generally Sandro Mezzadra and Brett Neilson, Border as Method, or, the Multiplication of Labor (Duke UP 2013). 68 See Vassilis Tsianos and Serhat Karakayalı, ‘Transnational Migration and the Emergence of the European Border Regime’ (2010) 13 Eur J Soc Theory 373; and Leonie Ansems de Vries and Elspeth Guild, ‘Seeking Refuge in Europe’ (2019) 45 JEMS 2156. 69 Thomas Gammeltoft- Hansen and James C Hathaway, ‘Non- Refoulement in a World of Cooperative Deterrence’ (2015) 53 Columbia J Transnatl L 235, 246. 70 See Dimitris Papadopoulos, Niamh Stephenson, and Vassilis Tsianos, Escape Routes (Pluto Press 2008). 71 See Masja van Meeteren, Godfried Engbersen Weitaus, and Marion van San, ‘Striving for a Better Position’ (2009) 43 IM Rev 881. 72 See Vicki Squire, ‘Unauthorised Migration Beyond Structure/Agency?’ (2017) 37 Politics 254. 73 Contrast the nuanced outlook by Nina Perkowski and Vicki Squire, ‘The Anti-Policy of European Anti- Smuggling as a Site of Contestation in the Mediterranean Migration “Crisis”’ (2019) 45 JEMS 2167; to the positive narrative of Ruben Andersson, Illegality, Inc (UC Press 2014).

110 Interdisciplinary Perspectives and Methodology to the facilitation of irregular entry and trafficking in human beings will be discussed in Chapter 16.3 on return.

4.3 Law as an Instrument of Government Legal experts intuitively acknowledge that the law is not neutral but reflects political, social, economic, and normative preferences. Critical studies in the tradition of post-structural theory and social constructivism highlight this ideological predisposition (4.3.1). The distinction of diverse migration statuses demonstrates how public authorities employ labels as an instrument of government to distinguish between (un)desirable foreigners (4.3.2). The use of language partakes in how we see the world and can influence the policy outcome, as the example of the ‘crisis’ metaphor illustrates (4.3.3). The notion of ‘securitisation’ brings together critical perspectives, as does the counter-narrative of a rights-based approach (4.3.4).

4.3.1 Starting point: Foucault and constructivism Michel Foucault is the figurehead of interdisciplinary analyses that put the accent on legal rules and administrative practices being instruments of social control. Foucault popularised concepts like ‘biopolitics’ or the ‘panopticon’, which designate classic forms of disciplinary power, as well as ‘governmentality’ for subtle form of internalised self-control.74 One step further, the situation at the external borders is often described in categories of ‘bare life’,75 exposing migrants to a state of emergency where their basic physical existence is questioned.76 Detention and deportation are paradigmatic expressions of sovereign power, as are databases as an epitome of modern technology. Such focus on the law as an instrument of government contrasts with the emphasis on individual migrant agency in contemporary border studies. Post-structural theory in the French tradition stressed that the categories in which we describe the world are socially situated and constantly reconstructed. The critique of ‘methodological nationalism’ and the ‘sedentary bias’, mentioned previously, are classic examples of how abstract findings about the relativity of our analytical categories can inform the analyses of specific questions of supranational migration policy. Constructivism can be combined, as we shall see, with critical legal studies, and it may even influence the doctrinal reconstruction of the legal material, in particular when interpreting open-ended human rights norms.

74 See https://en.wikipedia.org/wiki/Michel_Foucault#Philosophical_work (accessed 1 March 2023). 75 76

Giorgio Agamben, Homo Sacer: Sovereign Power and Bare Life (Meridian 1998). See Itamar Mann, Humanity at Sea (CUP 2016) 6–10.

Law as an Instrument of Government 111

4.3.2 ‘Labels’ as a means of government Article 79(2)(a) TFEU mentions family reunification as one ‘purpose’ for authorising entry and stay, and we will discuss multiple other purposes throughout this book. These migration statuses are so deeply ingrained into supranational and domestic legislation that legal experts tend to take them for granted, although they are far from self-explanatory from an interdisciplinary perspective.77 Indeed, the very distinction between ‘nationals’ and ‘foreigners’ (or ‘Union citizens’ and ‘third country nationals’) is the result of fundamental choices that led to the international legal order as we know it today.78 The distinction of ever more migrant statuses in recent decades need not be interpreted as an extension of state control or even xenophobia.79 Alternatively, it can be described as the increasing legalisation of status acquisition, with earlier notions of largely unfettered administrative discretion giving way to detailed rules comprising legal guarantees for migrants.80 Europeanisation was an integral part of this trend. A prominent critique of the conditionality of the different migration statuses, notably in North America, concerns the continuation of earlier forms of openly racist admission criteria. Seemingly neutral yardsticks, such as wage levels, education, or language skills, are considered to embody institutionally embedded racism.81 Others, by contrast, emphasise that the proliferation of stratified admission criteria coincided with the rise of neoliberal thinking. Having to prove one’s worth influenced the reform of social policies and migration laws, thus promoting an idea of ‘earned’ membership for foreigners and nationals alike.82 Even the rise of non-discrimination policies can be described as a result of the novel emphasis on individual merit.83 Points-based admission systems for the highly skilled are the embodiment of neoliberal migration policies, which will be mentioned in Chapter 14.4.1 on legal migration. The element of control inherent in the use of migration categories encompasses the basic distinction between ‘forced’ and ‘voluntary’ migration. Interdisciplinary analyses do not only highlight, in line with previous comments, that the driving forces behind migratory movements contradict the seemingly clear-cut juxtaposition of (forced) refuge and (voluntary) migration. They also demonstrate that these categories are socially constructed and have emerged over decades, if not centuries.84 Legal experts are bound to work with these labels regularly for the simple reason that they define the legal material, but doing so is not a

77 See Loïc Azoulai, ‘Le droit européen de l’immigration, une analyse existentielle’ [2018] Revue trimestrielle de droit européen 519. 78 See ch 1.1; Frank Schulze-Engler, ‘Irritating Europe’ in Graham Huggan (ed), The Oxford Handbook of Postcolonial Studies (OUP 2013) 669; and Nicholas De Genova, ‘Introduction’ in Nicholas De Genova (ed), The Borders of ‘Europe’ (Duke UP 2017) 1. 79 cf Diego Acosta Arcarazo and Jacopo Martire, ‘Trapped in the Lobby: Europe’s Revolving Doors and the Other as Xenos’ (2014) 39 EL Rev 362. 80 On the status quo ante see Tomas Hammar, ‘Comparative Analysis’ in Tomas Hammar (ed), European Immigration Policy (CUP 1985) 239, 249–62. 81 See ch 1.1.6; David S FitzGerald and others, ‘Can You Become One of Us?’ (2018) 44 JEMS 27; and Kevin R Johnson, ‘Race Matters’ (2000) 2 U Ill L Rev 525. 82 See Bridget Anderson, Us and Them? (OUP 2013); and Antje Ellermann, ‘Human-Capital Citizenship and the Changing Logic of Immigrant Admissions’ (2020) 46 JEMS 2515. 83 See Alexander Somek, Engineering Equality (OUP 2011); and Christian Joppke, Is Multiculturalism Dead? (Polity 2016) ch 5. 84 See Christiane Harzig and Dirk Hoerder, What is Migration History? (Polity 2009) 66–72; and Anderson (n 82) ch 2.

112 Interdisciplinary Perspectives and Methodology neutral exercise from an interdisciplinary perspective.85 Migration law, like most other systems of categorisation, creates hierarchical systems of rights, which states use to reinforce sovereign control. Critical studies have highlighted that even benevolent categories, like the spread of non- refoulement, combine tangible benefits for migrants with the ideological stabilisation of the sovereignty-based world order.86 Article 1A(2) of the Refugee Convention reinforces the conceptual nexus between citizens and states, when it protects anyone who fears being persecuted and is ‘unable . . . to avail himself of the protection of [his home] country’. One step further, critical studies have criticised refugee law for extensively relying on legal rules depicting individuals as seemingly passive objects in need of humanitarian support.87 Asylum legislation, with sophisticated procedures and multiple classifications ranging from safe third countries to membership of a particular social group, can be presented as a means of governmental control transforming highly political choices into depoliticised and technical administrative issues.88

4.3.3 Language between ‘abuse’, ‘crisis’, and ‘normality’ Language is not simply a means of communication using words with a pre-defined meaning. Our speech acts partake in the constant and performative (re)construction of the concepts with which we describe the world. These abstract findings of analytical philosophy prepared the ground for modern discourse analysis, which, in its post-structural appearance, critically examines how the use of language evolves over time and has psychological framing effects upon social and political choices.89 Feminism spearheaded the cautious use of language, which has received considerable attention in the context of migration recently. A classic example is the term ‘stranger’, which can have positive or negative connotations in line with the Latin distinction between ‘guest’ (hospes) and ‘enemy’ (hostis), thus being open to subtle variances and gradual shifts.90 How we speak about migration influences our thinking and can have an impact on the policy outcome. In the British debate, the term ‘bogus’ asylum seeker, or the generic notion of ‘abuse’, have traditionally been employed by those supporting restrictive measures. Similar semantics exist in other countries; a popular argument concerns putative ‘welfare migrants’ who supposedly enter a country to obtain social benefits. These examples have in common that they seek to delegitimise the motivation of individual migrants. Doing so will rarely have direct legal consequences, since the general principle of ‘abuse’, discussed in Chapter 10.8 on general features of secondary legislation, has a more limited meaning in Union law. 85 See Marta Bivand Erdal and Ceri Oeppen, ‘Forced to Leave? The Discursive and Analytical Significance of Describing Migration as Forced and Voluntary’ (2018) 44 JEMS 981; and Oliver Bakewell, ‘Research beyond the Categories’ (2008) 21 J Refug Stud 432. 86 See Nevzat Soguk, States and Stranger (Minnesota UP 1999); and Emma Haddad, The Refugee in International Society (CUP 2008) ch 1. 87 See Simon Behrman, ‘Legal Subjectivity and the Refugee’ (2014) 26 IJRL 1. 88 See Roger Zetter, ‘Labelling Refugees’ (1991) 4 J Refug Stud 39; and Simon Behrman (ed), Law and Asylum: Space, Subject, Resistance (Routledge 2018). 89 See Michel Foucault, L’ordre du discours (Gallimard 1971); and Amos Tversky and Daniel Kahnemann, ‘The Framing of Decisions and the Psychology of Choice’ (1981) 30 Science 453. 90 See Jacques Derrida, De l’hospitalité (Calmann-Lévy 1997); and Bonnie Honig, ‘Proximity and Paradox’ in Hans Lindahl (ed), A Right to Inclusion and Exclusion? (Hart Publishing 2009) 209.

Law as an Instrument of Government 113 Nevertheless, framing effects may direct the political debate towards restrictions. The same applies to the notion of ‘illegal migrant’, which negates legal personhood, and the less crude designation of ‘illegal stay’ referred to in Chapter 16.1.1 on return. Those supporting generous migration policies will speak of ‘irregular’ migration, or evade the negative connotations of ‘illegality/irregularity’ altogether. Events during 2015/16 were often referred to as a ‘migration’ or ‘refugee crisis’ (the terminology differed between countries). This choice of language has been criticised for portraying migrants and refugees as the origin of the ‘crisis’. It has been suggested that we should speak rather of a crisis of refugee protection or human rights, in light of the immense loss of life in the Mediterranean,91 or a crisis of inter-state solidarity.92 This contribution either avoids the crisis terminology or refers to an ‘asylum policy crisis’ to draw attention to the failure of the supranational institutions at overcoming structural deficits discussed in Chapter 13.1. In any case, we confine the use of the crisis metaphor to events during 2015/16, instead of insinuating an ongoing state of emergency. However, that is precisely what some political actors suggest by constantly talking about irregular arrivals or anonymous ‘waves’ or ‘flows’ that leave the general public with the impression that migration is some kind of unstoppable natural phenomenon. Such images feed a sense of ‘loss of control’, which can have negative repercussions, as we have seen, on public opinion. To what extent different frames succeed in influencing public perceptions remains a question of empirical analyses whose findings may differ over time and space.93 Counter-narratives exist. During 2015, the media paid much attention to terrible shipwrecks and the death of the toddler Alan Kurdi, who died when his family tried to reach the Greek island of Kos.94 Others highlight that migration policy is not only about public interests but also about the ‘rights’ of refugees and the ‘values’ of the European Union, thus opposing the widespread focus on negative language about ‘illegality’, ‘abuse’, or ‘threats’. Comparatively common is the assertion that cross-border movements characterise the human experience and have shaped European history. In the words of Commission President von der Leyen: ‘Migration has always been a fact for Europe—and it will always be. Throughout centuries, it has defined our societies, enriched our cultures, and shaped many of our lives. And this will always be the case.’95 Nevertheless, such positive language seems to have fallen behind the crisis metaphor on the whole, although it remains an option to direct the public debate in a different direction.

91 See Cathryn Costello and Minos Mouzourakis, ‘The Common European Asylum System: Where Did It All Go Wrong?’ in Maria Fletcher and others (eds), The European Union as an Area of Freedom, Security and Justice (Routledge 2018) 263, 264; and Gemma Marolda Gloninger, ‘From Humanitarian Rescue to Border Security’ (2019) 21 EJML 459. 92 See Cecilia Rizcallah, ‘Facing the Refugee Challenge in Europe’ (2019) 21 EJML 238, 241–48. 93 See Rens Vliegenthart, ‘Framing Citizens in the Field of Immigration Politics’ in Marco Giugni and Maria Grasso (eds), Handbook of Citizenship and Migration (Edward Elgar Publishing 2021) 269–83. 94 See https://en.wikipedia.org/wiki/Death_of_Alan_Kurdi (accessed 1 March 2023). 95 Ursula von der Leyen, ‘Building the World We Want to Live in’ (State of the Union Address, 16 September 2020).

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4.3.4 Securitisation versus rights-based approach To associate migration with security has a long history. Think of the wartime internment of ‘enemy aliens’ or the expulsion of ‘unwanted’ foreigners for diverse reasons. More recent interdisciplinary studies have coined the term ‘securitisation’ for the migration-security nexus. Such analyses assume that it can have discursive framing effects to connect migration semantically to latent security threats.96 Debates about ‘securitisation’ gained ground after the terrorist attacks of 2001 and the ensuing spread of restrictive measures, which were buttressed by The Hague Programme in the EU.97 Having said this, the debate about securitisation is not intrinsically linked to classic threats such as terrorism. Similarly, it encompasses the impact on prosperity (as a result of alleged ‘welfare migration’), the loss of control over the external borders (by means of ‘illegal migration’), and the identity of European societies (in response to the ‘Muslim other’).98 Security concerns are closely related to the language of ‘European sovereignty’ and a ‘Europe that protects’, used at the supranational level in line with comments in Chapter 1.2.6. This wide conceptualisation means that the notion of ‘securitisation’ can be applied to diverse policy initiatives at the external borders or within the territory; there is no clear- cut definition of where it starts or ends. Similarly, securitisation rarely translates into legal-doctrinal categories, although the ‘public policy’ caveat, used in most legislative instruments, and the generic safeguards for the maintenance of internal and external security in Articles 72 TFEU can be relevant. They will be discussed in Chapter 10.3 and 10.7 on general features of secondary legislation. Interdisciplinary debates about securitisation primarily concern the proliferation of databases, Frontex, the fortification of border controls, detention, forced removal, carrier and employer sanctions, and the criminalisation of illegal entry and stay. These measures will be discussed in the relevant sectoral chapters of this volume. A related argument concerns the ‘criminalisation’ of migration law (or ‘crimmigration’99), which is not limited to criminal law sensu stricto but equally encompasses the entire arsenal of coercive law enforcement.100 The added value of the securitisation viewpoint is to connect disparate phenomena and to show how the securitarian discourse can coincide with the spread of restrictive measures. Like in the case of language, there are alternative narratives accentuating the economic, moral, or social benefits of migration. Particularly relevant for legal experts is what is often called a ‘rights-based approach’, which emphasises that migration law is about promoting human rights as much as it concerns security. To do so is more than a reminder of mandatory constitutional requirements judges are bound to respect. Sociolegal studies have shown that discursive framing highlighting the human rights of migrants can have radiating effects

96 See Barry Buzan, Ole Wæver, and Jaap de Wilde, Security. A New Framework for Analysis (Rienner 1998); and Christian Kaunert and Ikrom Yakubov, ‘Securitization’ in Ariadna Ripoll Servent and Florian Trauner (eds), The Routledge Handbook of Justice and Home Affairs Research (Routledge 2018) 30. 97 See ch 1.2.5; and Didier Bigo, ‘Criminalisation of “Migrants”’ in Barbara Bogusz and others (eds), Irregular Migration and Human Rights (Martinus Nijhoff 2004) 61. 98 See Ayse Ceyhan and Anastassia Tsoukala, ‘The Securitization of Migration in Western Societies’ (2002) 27 Alternatives 21; and also Zygmunt Bauman, Strangers at Our Door (Polity Press 2016) chs 2–3. 99 The term was coined in the US context; see Juliet Stumpf, ‘The Crimmigration Crisis’ (2006) 56 Am U L Rev 367. 100 See Valsamis Mitsilegas, The Criminalisation of Migration in Europe (Springer 2015); and Neža Kogovšek Šalamon (ed), Causes and Consequences of Migrant Criminalization (Springer 2020).

Legal Methodology between Doctrine and Critique 115 upon the political debate.101 Chapter 2 demonstrated that the human rights discourse was influential at the supranational level during the initial phase of legislative harmonisation in the new millennium, while security concerns left their mark on the earlier and more recent institutional practice.

4.4 Legal Methodology between Doctrine and Critique Questions of methodology are rarely discussed by legal practitioners or academics working on EU migration law. This silence need not be an expression of negligence. In contrast to other disciplines, there are unifying elements connecting the contributions of academics and practitioners: the legal material and court judgments. Doctrinal research in the continental tradition pervades university education on the European continent and the judicial practice of the Court of Justice, even though academic analyses are increasingly relying on alternative methods as well (4.4.1). At the same time, doctrinal research in the continental tradition can be more demanding than the pejorative designation as ‘black letter’ law suggests (4.4.2). Particularly challenging are approaches combining legal insights with the findings of other disciplines (4.4.3).

4.4.1 Academic discourse: from enthusiasm to scepticism Legal cultures are handed over from generation to generation through social practices and shared experiences, among which university education and court judgments play a prominent role. They support a broadly doctrinal outlook on the European continent, which comes in different forms. In this overall context, research on EU law has changed. It used to be defined by a pro-European impetus,102 which had defined much of the early scholarship on justice and home affairs. It was widely expected, at the time, that the EU would replicate the historic mission of overcoming inter-state borders by promoting the rights of third country nationals.103 This expectation became a reality to a limited extent only, as we have seen in Chapters 2 and 3 on the institutional and judicial practice. Recent years have witnessed a ‘critical turn’ of EU legal studies generally and migration law specifically in response to the profound policy crises that have engulfed monetary union and asylum policy.104 Many academics were and are frustrated by what they perceive to be a proliferation of restrictions. Disappointment is one reason that helps to explain the increasing turn towards interdisciplinary perspectives on legal developments. At the same time, academic research on EU migration law has undergone professionalisation. Political salience and practical weight entail that justice and home affairs have acquired a reputation as an essential area of expertise. This gain in reputation allowed migration law experts and research institutions that had often worked with little job security

101 See Leila Kawar, Contesting Immigration Policy in Court (CUP 2015); and Saskia Bonjour, ‘Speaking of Rights’ (2016) 38 Law & Pol 328. 102 See Francis Snyder, ‘New Directions in European Community Law’ (1987) 14 J L & Soc 167, 167–70. 103 See ch 1.3. 104 See Editorial Comments, ‘The Critical Turn in EU Legal Studies’ (2015) 52 CML Rev 881.

116 Interdisciplinary Perspectives and Methodology or institutional funding to gain some ground, although much precarity persists.105 In that respect, legal research lagged behind the humanities and the social sciences where the standing of migration studies had improved considerably from the 1990s onwards. This move to the centre goes along with a greater methodological sophistication, instead of practice-oriented output.106 Moreover, contextual research in the Anglo-Saxon tradition has generally advanced on the European continent in recent years, complementing the traditional focus on doctrinal hermeneutics.

4.4.2 Between ‘black letter’ and doctrinal constructivism Whereas judicial precedent takes centre stage in Anglo-Saxon countries, written legislation and the ideal of codification characterise the civil law tradition. There is much overlap in practice, but this does not unmake the discrepancy in outlook among legal practitioners and academics. Experts with a background in common law are often unaware that the concept of ‘legal order’ hints at an organic vision of coherence and perfection, as Chapter 6.1 on the doctrinal foundations will illustrate. Doctrinal research can be more than a crude exercise of legal positivism repeating the contents of secondary legislation or echoing the judicial reasoning. When discussing these matters, we employ the adjective ‘doctrinal’ as a broad description of the civil law tradition, although the term is used in the common law with a somewhat different meaning to designate a body of judicial precedent built over time. The alternative description ‘dogmatic’ may be frequent in civil law countries but can have negative connotations expressing discontent in English. Close cooperation with legal practitioners is one reason for the prevalence of doctrinal work on the continent. Journals and edited volumes will frequently publish contributions written by academics and practitioners, be it judges, lawyers, civil servants, or people working for as NGOs. Career paths overlap in many cases, especially in the early phases when many do not have a permanent position. Senior academics may assume advisory and other roles in legal practice, while some practitioners enjoy participating in academic debates.107 Research funding by private donors, national research bodies, and EU institutions promotes practice-oriented output.108 Writing studies for the European Parliament or participating in reports coordinated by private consultancy firms for the Commission can be a prestigious (and financially rewarding, unlike journal articles). For example, the transnational Odysseus Network for Legal Experts on Immigration and Asylum in Europe brings together more than forty members from academia and legal practice.109 Court judgments are a unifying element of practice and academia. They reiterate the significance of doctrinal arguments for the simple reason that the Court of Justice follows 105 See Stephen Castles, ‘Understanding Global Migration’ (2010) 36 JEMS 1565, 1572–73; and Michael Bommes, ‘Migration Research in Germany’ in Dietrich Thränhardt and Michael Bommes (eds), National Paradigms of Migration Research (Vandenhoeck & Ruprecht 2010) 127, 148–59. 106 See Rosemary Byrne and Thomas Gammeltoft-Hansen, ‘International Refugee Law between Scholarship and Practice’ (2020) 32 IJRL 181, 191–92; and Jo Shaw, ‘European Union Legal Studies in Crisis?’ (1996) 16 OJLS 231. 107 Byrne and Gammeltoft-Hansen (n 106) 182–88; and Harm Schepel and Rein Wesseling, ‘The Legal Community’ (1997) 3 ELJ 165. 108 See Christina Boswell, ‘The “Epistemic Turn” in Immigration Policy Analysis’ in Freeman and Mirilovic (n 42) 11, 14–16; and Christina Boswell, The Political Uses of Expert Knowledge (CUP 2009). 109 See https://odysseus-network.eu/members (accessed 1 March 2023).

Legal Methodology between Doctrine and Critique 117 the tradition of doctrinal hermeneutics. Many judges, or the référendaires working for them, read law journals. And articles written by academics may even be cited in the opinions of Advocates General, as well as in domestic judgments on EU migration law. On the European continent, the work of practitioners and academics forms, to some extent at least, an overarching epistemic community of legal experts working on similar themes and with a shared methodology. Having said this, doctrinal research comes in many forms, and the prestige of academia differs across Europe. Italy, Germany, and jurisdictions influenced by their traditions, including countries in Central and Eastern Europe, have a strong reputation in doctrinal research; judicial reasoning often develops doctrinal arguments at length and will frequently refer to academic contributions. By contrast, French judgments have traditionally been short statements of result, and the ‘doctrine’ is an analytical summary of core developments rather than an organic evolution of the law with original contributions by academics. Nordic countries and the Netherlands are defined by a tradition of legal formalism, assigning a largely passive role to courts and academics alike. Common law jurisdictions experience little overlap between academics and judges, and doctrinal work tends to focus on judgments; the principally uncritical summary of the facts and the judicial reasoning have little in common with the rich tradition of doctrinal constructivism in the German or Italian tradition. At the supranational level, these various outlooks coalesce into a unique blend.110 Brexit arguably entails that the continental tradition remains influential. This overall picture becomes even more complex if we include the domestic level. National parliaments transpose directives, and domestic authorities and courts decide individual cases, as elaborated upon in Chapter 7 on the administrative dimension. While secondary legislation and CJEU judgments serve as a common point of reference, the legal discourse at the domestic level (in the national language) is partly disconnected from the transnational debate (usually in English these days).111 That has a knock-on effect for legal practice. Supranational judges will normally have pursued a judicial, academic, or political career domestically before being appointed to the bench in Luxembourg; their outlook will often be multilingual and informed by domestic developments as a result.112 Similarly, preliminary reference are influenced by the national context from which they emerge more than by the specific outlook of the transnational debate in the English language. A fine example is the German Constitutional Court obliging a domestic court to refer a case to the CJEU about the effects of refugee protection, granted in Italy, on extradition procedures to the home state, since no less than six different authors, all writing in German, disagreed about the interpretation of Article 9 Qualification Directive 2011/95/EU.113 Anyone aspiring to have a holistic understanding of EU migration law should strive to take into account the linguistic, thematic, and methodological diversity of legal traditions. 110 See Bruno de Witte, ‘European Union Law: A Unified Academic Discipline?’ in Antoine Vauchez and Bruno de Witte (eds), Lawyering Europe (Hart Publishing 2013) 101; and Armin von Bogdandy, ‘National Legal Scholarship in the European Legal Area: A Manifesto’ (2012) 10 ICON 614. 111 See Daniel Thym, ‘The Limits of Transnational Scholarship on EU Law’ (Working Paper LAW 2016/14, EUI 2016) https://ssrn.com/abstract = 2785668 (accessed 1 March 2023). 112 See Hughes Bouthinon-Dumas and Antoine Masson, ‘Quelles sont les revues juridiques qui comptent à la Cour de justice de l’Union européenne?’ [2013] Revue trimestrielle de droit européen 781; and Antonin Cohen, ‘Ten Majestic Figures in Long Amaranth Robes’ in Vauchez and de Witte (n 110) 21–43. 113 See Federal Constitutional Court (Bundesverfassungsgericht), Case 2 BvR 2096/21 (decision of 30 March 2022) paras 46–52.

118 Interdisciplinary Perspectives and Methodology When it comes to doctrinal work, we may distinguish two ideal-typical approaches. On the one hand, the systematisation of the case law and the analysis of secondary legislation in light of the interpretative standards used by the Court (wording, telos, general scheme, drafting history). To do so can be influential in practice, also considering that the open- ended structure of many provisions often entrusts judges with fine-tuning their meaning. The sheer complexity of EU migration law entails that there is plenty of room for doctrinal interpretation. On the other hand, more sophisticated doctrinal research will explore the theoretical foundations and systemic coherence of the legal order and propose solutions at an intermediate level of abstraction. Doing so acknowledges that abstract legal norms cannot be captured fully by interpretative hermeneutics alone; they convey a set of normative values and express basic choices of societies, which can change over time.114 Such outlook can be described as contextually embedded doctrinal constructivism.115 It will usually concern constitutional matters and overarching themes.

4.4.3 Interdisciplinary and critical approaches Complexity is a defining feature of EU migration law. The number and length of legal instruments has multiplied over the years, thus confronting experts with a veritable ‘avalanche’ of secondary legislation, policy developments, practical changes on the ground, and court judgments. Such ‘data overload’ was identified as one reason why EU legal studies have traditionally pursued limited theoretical ambitions, focusing on legislation and court judgments instead.116 That may have changed. Widespread frustration with the policy output among academics and the general reorientation of legal research across Europe entail that academic research strives for interdisciplinary analyses, especially among younger academics writing doctoral theses. Comments throughout this chapter facilitate the identification of non-legal perspectives readers may find useful, and, yet, interdisciplinary embeddedness may come at a price. Time and energy invested into contextual inquiries cannot be used to decipher EU migration law at a time when the sheer complexity of the legal material increases the need for doctrinal categorisation. This may weaken the traditionally close connection between academia and practice. In a worst case scenario, academia might lose practical impact, while not being recognised by other disciplines as an equal sparring partner if it cannot explain the distinct outlook of legal research mirroring the methodological rigidity and theoretical finesse of the social sciences and the humanities. To prevent such an outcome, legal experts should ideally retain an awareness of doctrinal sophistication and develop methodologically sound arguments combining the legal outlook with non-legal perspectives. A number of comments may help readers to define their approach. First, methodological reflection is warranted, both for those performing doctrinal work and others. Interdisciplinary research is usually based on theoretical or methodological assumptions that require an advanced knowledge of other disciplines. Legal experts

114 See Robert R Cover, ‘Foreword: Nomos and Narrative’ (1983) 97 Harv L Rev 4; and Martti Koskenniemi, ‘Constitutionalism as Mindset’ (2007) 8 Theoretical Inq L 9, 23–36. 115 See Armin von Bogdandy, ‘Founding Principles of EU Law’ (2010) 16 ELJ 95. 116 See Neil Walker, ‘Legal Theory and the European Union’ (2005) 25 OJLS 581, 585.

Legal Methodology between Doctrine and Critique 119 should try to understand these propositions, including theoretical or methodological counterarguments supporting a different outcome.117 In doing so, they should be aware of false friends. Similar terminology or concepts may hide deeper discrepancies, in the same way as arguments about the United States or other countries need not be equally valid for the distinct situation of the European polity with its multiple levels of government.118 Of course, interdisciplinary work by legal experts cannot be expected to have the same level of theoretical depth and methodological sophistication as generic pieces from other disciplines. A certain degree of methodological flexibility is warranted, provided that legal experts are aware of the pitfalls of trans-disciplinary exploration. Secondly, it is the legacy of the critical legal studies movement to have highlighted the ideological predisposition of the law mentioned previously, thereby deconstructing its widespread self-description as a quasi-neutral set of rules. Feminism, post-colonial thought, and critical race theory follow these patterns. They are particularly relevant for anyone who is critical of policy developments. Critical approaches contextualise the legal material by highlighting theoretical assumptions, practical effects, or normative implications.119 Such criticism will often remain ‘external’ to the law and plead for policy change. At the same time, there may be room for ‘internal’ critique reintegrating the critical reflection into the interpretation of the law. EU migration law leaves room for such proposals at the level of statutory interpretation and constitutional adjudication, as a result of the open-endedness of many legislative instruments and abstract human rights norms.120 The contextualisation of the law need not be limited to critical approaches, as illustrated by the North-American tradition of ‘law and economics/literature/film/etc’. Thirdly, many legal experts will have unspoken normative and political preferences, even though doctrinal work has traditionally been successful in fencing in the practical impact of these opposing preconceptions.121 Depending on the issues at stake, the same author may call for literal interpretation based on the wording or prefer teleological dynamism when the wording conflicts with their normative convictions.122 Readers may wish to replace such implicit positions with an open and interdisciplinary reflection on underlying preferences. In doing so, the degree of normative thrust will vary among authors. An ideal-typical distinction may be made between legal experts perceiving their work as advocacy and those aspiring to be essentially analytical chroniclers of legal developments.123 Both approaches are equally legitimate and are faced with the same challenge to develop a sound methodological argument which should ideally combine robust doctrinal hermeneutics with an informed interdisciplinary outlook.

117 See Jost Halfmann, ‘World Society and Migrations’ in Michael Bommes and Ewa Morawska (eds), International Migration Research (Ashgate 2005) 129. 118 See Adrian Favell, ‘Migration Theory Rebooted?’ in Caroline B Brettell and James F Hollifield (eds), Migration Theory (3rd edn, Routledge 2015) 318, 321–24. 119 See Robert Cryer, Tamara Hervey, and Bal Sokhi-Bulley, Research Methodologies in EU and International Law (Hart Publishing 2011) 59–72; and the contributions to Siniša Rodin and Tamara Perišin (eds), The Transformation or Reconstitution of Europe (Bloomsbury/Hart Publishing 2018) 3. 120 See ch 6.4; and Thomas Spijkerboer, ‘Analysing European Case Law on Migration’ in Loïc Azoulai and Karin de Vries (eds), EU Migration Law (OUP 2014) 188. 121 See Martti Koskenniemi, From Apology to Utopia (2nd edn, CUP 2005) 513–614. 122 See Martijn van den Brink, ‘Justice, Legitimacy and the Authority of Legislation within the European Union’ (2019) 82 ML Rev 293, 295–300. 123 See also Byrne and Gammeltoft-Hansen (n 106) 189–93.

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4.5 Summary Cross-border movements are defined by multiple factors that do not translate into a quasi- mathematical formula allowing for the accurate identification of the decisive variables. Numerous push and pull factors interact, and their relative weight varies over space and time. Elements at the macro-level of analysis, such as wage levels or insecurity, interact with micro-considerations, for instance with regard to information levels, courage, or financial capacities. The law is one element amongst others influencing the decision whether to leave and where to go—not necessarily the most important one, as the example of the ‘welfare magnet’ hypothesis illustrates. Many drivers of migration are beyond the direct control of states. Moreover, preferences can change over time. Temporary stay may turn into settlement, and asylum applicants may decide leave a ‘transit’ country after having lived there for years. Family and ethnic networks play a crucial role, supporting what is often called— somewhat pejoratively—‘chain migration’. The complexity of drivers entails that the legal distinction between ‘voluntary’ and ‘forced’ migration presents itself as a continuum of explanatory factors from an interdisciplinary perspective. Whereas legal experts concentrate on the interpretation and application of the law, other disciplines explore factors which define the design and effectiveness of state policies. Normative theories develop abstract arguments about how to justify borders in a globalised world. Social scientists have coined the notion of ‘control gap’ to analyse the reasons why states often fail to achieve policy objectives. EU integration and court judgments play a prominent role in some explanations, while others focus on the structure of the public discourse and the political system. Politicisation is one factor which helps to explain why sceptical public opinion increasingly leaves a mark on policy developments. In this overall context, intergroup threat theory rationalises how perceptions of threat can influence public opinion. Such findings can be combined with contemporary discourse analysis emphasising that the use of language has framing effects on the way we think and, hence, the policy output. Classic examples of performative speech acts supporting restrictive tendencies are invocations of ‘abuse’ and ‘crisis’, which are widespread in asylum. Ethnographic research contrasts the ‘top-down’ perspective of the legal analysis with the ‘bottom-up’ experience of administrative authorities and migrants. Sociolegal studies unearth the degree of flexibility and creativity ‘street-level bureaucrats’ exercise when applying the law, for instance at the external border where the situation is often unclear. Similarly, migrants possess a certain degree of agency navigating their way with creativity and spontaneity, although we should be careful not to idealise their lived experience. Such accounts present a counterweight to descriptions of European migration law as a purportedly omni- powerful instrument of repressive government in the tradition of post-structural theory. To unmask the ideological predisposition of the law is the starting point of critical approaches that contend, for example, that seemingly neutral legislation on migration status conditionality may embody neoliberal thinking and institutionally embedded racism. ‘Securitisation’ has become a prominent umbrella concept to analyse the shift towards restriction in the domain of asylum in Europe and beyond. Recent years have witnessed the proliferation of interdisciplinary research among academics working on European Union law generally and supranational migration law specifically. Doing so complements the focus on doctrinal work in the continental tradition, which has traditionally constituted a unifying element for an overarching epistemic community of

Summary 121 legal academics and practitioners in many civil law jurisdictions. Frustration with policy outcome is one reason for the interdisciplinary turn, which can be methodologically challenging, especially if the author aims for the reintegration of non-legal perspectives into the legal argument. The latter embraces various forms of doctrinal work ranging from legislative interpretation and the systematisation of the case law to sophisticated arguments of contextually embedded doctrinal constructivism, especially on overarching themes and constitutional matters. All these approaches are equally legitimate, provided that authors reflect openly on what they are doing.

5

Human Rights and State Sovereignty ‘Migration’ is commonly understood to refer to cross-border movements—an international phenomenon by definition. Nevertheless, international law did not develop an extensive set of customary rules or contractual obligations on many topics discussed in this book. The diversity of factual backgrounds and conflicts of interests between home states and receiving countries has prevented the emergence of an overarching international migration law, thus leaving important aspects for states to deal with individually. Chapter 1 revealed that the history of European migration law did not see extensive internationalisation, until today’s European Union promoted internal free movement and began regulating the entry and stay of third country nationals. Yet, absence of a dense network does not imply that international law is irrelevant. There are important guarantees states must respect. The international legal context of European migration law includes both essential multilateral instruments, such as the Refugee Convention and international human rights law, as well as contractual commitments enshrined in bilateral treaties. This chapter will present core features of these instruments and explain how they interact with EU legislation. Indeed, the claim to autonomy inherent in the Court’s famous dictum that the EU Treaties establish ‘a new legal order’1 means that the legal effects of international obligations are not straightforward, in the same way as it can be difficult to determine the precise meaning of international rules. Interaction with supranational legislation brings to the fore various nuances, with repercussions for academic analyses and day-to-day decision-making. Our inquiry begins with the classic template of ‘alien’s law’, which informs the design and analysis of statutory obligations to date. Inter-state treaties on specific subject matters often protect individuals living abroad qua nationality (5.1). Meanwhile, human rights are the primary source for the protection of migrants nowadays; they serve as a conceptual counterweight to state sovereignty (5.2). Comments thereafter will concentrate on the parameters guiding the interaction of the main human rights instruments with EU migration law, while specific guarantees, such as the prohibition of refoulement, will feature in the chapters of Part II. We shall focus on the lead function of the European Convention on Human Rights (ECHR) (5.3), its impact on the Charter of Fundamental Rights of the European Union (CFR) (5.4), and the complementary role of international treaty bodies (5.5). The Refugee Convention serves as an essential point of reference for the Qualification Directive, even though the international practice has had, so far at least, limited practical impact on the judicial output of the Court of Justice (5.6).

1

Case 26/62 van Gend en Loos EU:C:1963:1.

European Migration Law. Daniel Thym, Oxford University Press. © Daniel Thym 2023. DOI: 10.1093/oso/9780192894274.003.0006

‘Aliens Law’ as Protection qua Nationality 123

5.1 ‘Aliens Law’ as Protection qua Nationality Conventional descriptions of state sovereignty had emphasised largely unfettered state control over migration: Apart from special treaties of commerce, friendship, and the like, no state can claim the right for its subjects to enter into, and reside on, the territory of a foreign State. The reception of aliens is a matter of discretion, and every state is by reason of its territorial supremacy competent to exclude aliens from the whole, or any part, of its territory.2

That is not to say, as we have seen in Chapter 1, that states necessarily pursued restrictive entry policies, rather that the choice whether to do so was not determined by international law. Few obligations dealt with side aspects of contemporary migration law, including minimum standards to be enforced horizontally via the rules of state responsibility (5.1.1). Conventions drafted in the framework of the Council of Europe build on this tradition and retain some relevance in specific circumstances (5.1.2), as do rules on the reduction of statelessness (5.1.3).

5.1.1 Historic minimum standards as inter-state obligations In a world defined by state sovereignty, individuals held few rights of their own. Classic international law, as it developed during the nineteenth century, protected individuals only indirectly via the coordination of conflicting sovereignty claims. The legal status of ‘aliens’—as non-nationals were widely called at the time—was construed as the intersection of the territorial sovereignty of the host country and the personal sovereignty of the home state. On that basis, political and legal conflicts were regulated along the horizontal axis of inter-state relations.3 Legal debates concentrated on ‘minimum standards’ for aliens, which did not lay down individual rights in the contemporary sense. Home states asserted their own rights when responding to the mistreatment of nationals by host countries, as opposed to individuals acting on their own behalf.4 Enforcement of minimum standards relied on diplomatic protection by home states in accordance with the rules on state responsibility, including the potential of compensation.5 International law distinguished two methods of how to regulate the status of foreigners, which inform migration law until today. States disagreed about whether to support ‘minimum standards’ establishing an autonomous level of protection defined internationally— or ‘national treatment’, which effectively prescribed parity of foreigners with nationals. A variant of ‘national treatment’ was the ‘most favoured nation’ principle, which deferred to domestic rules but guaranteed treatment that was no less favourable than that of nationals 2 Hersch Lauterpacht, Oppenheim’s International Law, vol I (8th edn, Longham 1955) 675–76; for nuances in the earlier debate see Vincent Chetail, ‘Sovereignty and Migration in the Doctrine of the Law of Nations’ (2016) 27 EJIL 901. 3 See Vincent Chetail, International Migration Law (OUP 2019) 59–61. 4 See Panevezys-Saldutiskis Railway Case (Estonia v Lithuania) (Permanent International Court of Justice, 28 February 1939) para 65. 5 See Kay Hailbronner and Jana Gogolin, ‘Aliens’ in The Max Planck Encyclopedia of Public International Law (OUP online edition, last updated September 2013) http://www.mpepil.com (accessed 1 March 2023) paras 25–28.

124 Human Rights and State Sovereignty of any other third country.6 Both the Refugee Convention and supranational legislation take up these formulae. Beneficiaries of international protection, for instance, have access to social welfare under the same conditions as nationals (national treatment); access to employment follows the rules on foreigners residing legally (most favoured nation); and identity papers or travel documents must be issued in accordance with international rules, irrespective of domestic law (minimum standard).7 While the methods of regulating the status of foreigners remain relevant, the contents of the historic minimum standards have little significance for migration law. Entry and stay were not generally dealt with—except for some provisions in bilateral treaties of friendship, commerce, and navigation, which were mentioned in Chapter 1.1.4 on the prehistory of Europeanisation. Minimum standards focused on economic guarantees for trade and investment; they were the forerunner of contemporary investment protection treaties rather than of modern human rights law. As a result, dynamics were reversed. Those supporting enhanced protection argued against national treatment, since parity with nationals often meant little or no compensation in case of expropriation. Against the opposition of Latin American countries, the United States insisted on ‘adequate’ compensation. Several language versions of Article 67(1) TFEU take up this formula when promising the ‘fair’ (French: équitable; German: angemessene) treatment of third country nationals. Moving beyond minimum standards, the idea of horizontally regulating the status of foreigners through the use of reciprocal guarantees for nationals of the state parties by means of bi-or plurilateral treaties remains pertinent until today. Free movement of Union citizens follows this paradigm in the same way as the EU’s association agreements with neighbouring states, which will be presented in Chapter 17. Their benefits are usually confined to the nationals of the state parties, not other foreigners. Secondary legislation on legal migration habitually embraces provisions authorising more favourable treatment for nationals of some countries under bilateral agreements.8 Moreover, the concept of personal sovereignty of home states over nationals residing abroad informs the obligation, enshrined in international custom, to readmit nationals.9 The non-binding Global Compact for Safe, Orderly and Regular Migration, adopted in 2018, reaffirmed ‘the obligation of States to readmit their own nationals’.10 Migration law as a domain of inter-state obligations retains some relevance in the age of human rights.

5.1.2 Limited impact of the conventions of the Council of Europe After the Second World War, the Council of Europe was founded as an umbrella organisation to promote ‘common action in economic, social, cultural, scientific, legal, and administrative matters’.11 To date, the Strasbourg-based organisation brings together forty-six state 6 See generally Hollin Dickerson, ‘Minimum Standards’ in Max Planck Encyclopedia (n 5) paras 6–10 (last updated October 2010). 7 See Refugee Convention, arts 21, 23, 27–28; and Qualification Directive 2011/95/EU, arts 24–25, 29, 32(1). 8 By way of example see Family Reunification Directive 2003/86/EC, art 3(4)(a); and Blue Card Directive (EU) 2021/1883, art 4(1). 9 See Kay Hailbronner, ‘Readmission Agreements and the Obligation on States under Public International Law’ (1997) 57 Heidelberg J Intl L 1, 11–15. 10 See UNGA, ‘Global Compact for Safe, Orderly and Regular Migration’ Objective 21 No 37 (Resolution No 73/ 195, 19 December 2018). 11 Statute of the Council of Europe (adopted 5 May 1949, entered into force 3 August 1949) ETS No 1, art 1(b).

‘Aliens Law’ as Protection qua Nationality 125 parties, including Azerbaijan and Turkey. It should not be confused with the EU institutions known as the ‘Council’ and the ‘European Council’. Contrasts between the Council of Europe and the European Union transcend questions of membership. Institutional design differs markedly: while the EU is commonly described as being ‘supranational’ with legislative functions and directly effective rules, the Council of Europe follows the paradigms of public international law. As a result, negotiations of international treaties often dragged on for years, ratification by national parliaments was delayed (and will rarely include all members), and application suffered from the absence of an international judicial body with generic jurisdiction to interpret common rules. Notwithstanding these limitations, several conventions on specific aspects of migration law were concluded in the framework of the Council of Europe before the EU started occupying the terrain.12 Although these conventions remain legally intact, their practical relevance was considerably diminished by successive rounds of EU enlargement. A defining feature was reciprocity, since the conventions covered nationals of state parties only, not third country nationals. As a result, comparatively progressive rules on protection against expulsion, access to social assistance, or the rights of migrant workers, including family reunification, lost ground when the beneficiaries became Union citizens (or benefited from association agreements). Today, the European Convention on Social and Medical Assistance of 1953,13 the European Convention on Establishment of 1955,14 and the European Convention on the Legal Status of Migrant Workers of 197715 have limited bearing primarily for Turkish nationals and—as a result of Brexit—British citizens living in another state party which ratified the convention in question.16 These multilateral conventions are complemented by a network of bilateral agreements on social security coordination and double taxation, which do not concern entry and stay but are practically relevant nonetheless. Analysis of these agreements generally requires an advanced knowledge of tax law or social security coordination. Application ratione personae is usually confined to nationals of the Contracting Parties. Moreover, these agreements are primarily concerned with the protection of acquired rights and the coordination of national social security systems in case of legal migration; they do not set out supranational prescriptions for benefit levels, as described in Chapter 15.3.4 on integration. Before the advent of EU harmonisation, the Council of Europe also engaged in political initiatives to coordinate asylum legislation. These initiatives did not succeed, although Chapter 13.3.1 will mention that they were one potential source of inspiration for the well-known ‘first entry rule’ in the Dublin III Regulation according to which Member States at the external borders shall typically assume responsibility of asylum seekers.

12 For an overview see Kees Groenendijk, ‘Long-Term Immigrants and the Council of Europe’ (1999) 1 EJML 275, 276–81; and Karin Oellers-Frahm, ‘The Contribution of the Council of Europe to the Legal Position of Aliens’ in Jochen A Frowein and Torsten Stein (eds), Die Rechtsstellung von Ausländern nach staatlichem Recht und Völkerrecht, vol 2 (Springer 1987) 1725. 13 Adopted 11 December 1953, entered into force 1 July 1954, ETS No 14; it applies to several EU Member States, as well as to Norway, Iceland, the UK, and Turkey. 14 Adopted 13 December 1955, entered into force 23 February 1965, ETS No 19; it is binding upon nine EU Member States, as well as Norway, Iceland, the UK, and Turkey. 15 Adopted 24 November 1977, entered into force 1 May 1983, ETS No 93; it has been ratified by eleven States, including six EU Member States and five third states. 16 While Turkey acceded to all three listed above, the UK ratified the first two; a full list of conventions, signatures, and ratifications can be found at https://www.coe.int/en/web/conventions/full-list (accessed 1 March 2023).

126 Human Rights and State Sovereignty

5.1.3 Reduction of statelessness as a legal obligation The classic template of legal protection qua nationality presupposed that home states stood ready to defend the rights of nationals. This was never straightforward. Effective diplomatic protection requires consular capacities, diplomatic clout, and political will. It was beyond reach for many foreigners and was often exercised to secure financial interests of economic actors. In spite of this, the regulatory function of nationality as a door opener for legal guarantees meant that states pursued the objective of closing loopholes by ensuring that ‘everyone has a right to a nationality’,17 while simultaneously avoiding double nationality.18 The Convention on the Reduction of Statelessness of 1961 is one of the most successful conventions concerning the rights of migrants; it has been ratified widely in Europe and beyond.19 More specifically, the Convention obliges states to establish domestic rules so that stateless children and adults may acquire nationality by birth or via naturalisation under certain conditions. This was given additional legal teeth by the European Court of Human Rights (ECtHR), which integrated core guarantees against statelessness into the case law on the right to respect for private life under Article 8 ECHR, for situations dealing with the breakup of Yugoslavia and the Soviet Union.20 These principles can possibly be relied upon in other circumstances as well, although the precise parameters would have to be sorted out. On the European continent, the legal framework for the reduction of statelessness is comparably strong, notwithstanding room for improvement.21 We shall see in Chapter 15.7 on integration that it will be governed by international law in the years to come. The wide scope of supranational competences excludes the harmonisation of nationality laws. That is not to say that Union law has nothing to say on statelessness. Article 67(2) TFEU defines the term ‘third country national’ to include ‘stateless people’; competences for law- making in Articles 77–80 TFEU embrace stateless people. EU institutions followed this guidance. By way of example, the introductory definitions in the Long-Term Residents Directive and the ICT Directive reaffirm that the rules therein apply to ‘any person who is not a citizen of the Union’.22 Stateless people may, therefore, acquire residence permits in accordance with that legislation. This subsidiary supranational safety net is irrelevant, however, whenever they qualify for naturalisation under the Convention on the Reduction of Statelessness or domestic laws. Recent years have witnessed a heightened interest in statelessness. That is laudable in many respects but runs the risk of overstating the significance of de jure statelessness. It seems that the increase in attention is informed, in part at least, by the symbolic visibility of the catchword ‘statelessness’. It is easier to urge states to counter statelessness than to engage in complex debates on, for instance, the procedural intricacies of the Return Directive. Yet, 17 Universal Declaration of Human Rights (UNGA Resolution 217 (III), 10 December 1948),, art 15(1), which is not legally binding. 18 See (European) Convention on the Reduction of Cases of Multiple Nationality and Military Obligations in Cases of Multiple Nationality (adopted 6 May 2002, entered into force 28 March 1968) ETS No 43, with later additional protocols. 19 Adopted 30 August 1961, entered into force 13 December 1975, 989 UNTS 175; it was ratified by all EU Member States except for Poland, Estonia, Slovenia, and France (they only signed it). 20 See Hoti v Croatia App no 63311/14 (ECtHR, 26 April 2018) §§ 119–24; and the previous ‘weaker’ case law on non-deportation, such as Sisojeva v Latvia App no 60654/00 (ECtHR [GC], 15 January 2007) §§ 90ff. 21 See Katia Bianchini, Protecting Stateless Persons (Brill/Nijhoff 2018). 22 Long-Term Residents Directive 2003/109/EC, art 2(a); and ICT Directive 2014/66/EU, art 3(a).

Human Rights qua Personhood 127 it is precisely these matters of de facto statelessness the interdisciplinary debate is primarily concerned with, by focusing on the legal status and the lived experience of those having a passport of a third state officially that, in reality, is not worth much.23 Legal experts should beware, therefore, of synchronising the legal rules on the reduction of de jure statelessness with the more general debate.

5.2 Human Rights qua Personhood Human rights often take centre stage in analyses of migration law. They do so for good reasons. Human rights feature prominently in political debates, and judges at the ECtHR have played an essential role in extending the rights of migrants.24 Furthermore, there is social reputation to be earned as an expert in human rights in the world of academia and beyond. Anyone intuitively understands their significance, while complex questions of legislative interpretation appear less attractive. Internationally, human rights were critical for the introduction of individual guarantees independent of nationality (5.2.1). Hanna Arendt coined the famous formula of the ‘right to have rights’, which legal academics occasionally misinterpret (5.2.2). It reminds us of the normative significance of human rights as a trajectory for the promotion of migrants’ interests (5.2.3).

5.2.1 Individual guarantees for ‘everyone’ A comparison to the nationality-based protection regime of former times reveals that international human rights law transcends the paradigm of sovereign statehood in at least three ways. First, human rights transcend the horizontal axis of inter-state relations. Their protective reach is not commonly limited to nationals of state parties, as in the case of most bilateral agreements. A Nigerian woman living in Italy can rely on human rights in the same way as Ukrainians working in Poland. The distinction between citizens’ rights and human rights is normally confined to specific guarantees, for instance in Articles 15, 39–40, and 45 CFR. Secondly, other guarantees can usually be invoked by ‘everyone’25 within the jurisdiction of a state. The jurisdictional yardstick requires scrutiny of the potential and limit of extraterritorial reach, which can be found in Chapter 12.2.2 on border controls. Very few provisions erect additional hurdles in terms of migration status. By way of example, social security benefits and advantages can be confined to those ‘residing and moving legally’,26 while freedom of movement may be restricted to anyone ‘lawfully within the territory’,27 thus probably excluding asylum applicants during the procedure.28 Such limitations ratione 23 See Katherine Tonkiss and Tendayi Bloom, ‘Theorising Noncitizenship’ (2015) 19 Citizenship Stud 837; and the other contributions to the special issue. 24 While experts in international law habitually refer to ‘human rights’, the term ‘fundamental rights’ is often preferred by scholars of constitutional law; this book uses both expressions interchangeably, mirroring the official titles of the ECHR and the CFR. 25 ECHR, art 1. 26 CFR, art 34(2). 27 Additional Protocol No 4 to the ECHR, art 2(1). 28 See ch 13.8.4 and ch 13.9.4.

128 Human Rights and State Sovereignty personae are the exception to the rule that human rights generally apply to ‘everyone’ irrespective of nationality. Thirdly, a central novelty was the international character of the instruments. They elevated matters that had previously been considered to be essentially in the domaine réservée of internal affairs to the international plane. Crucially, the conventions went beyond abstract commitments by establishing expert bodies or courts to supervise interpretation and application. They mark an important practical distance from the historic model of the minority treaties of the inter-war period, mentioned in Chapter 1.1.3, which proved ineffective in protecting ethnic and cultural minorities in Central and Eastern Europe against pervasive atrocities.

5.2.2 Hanna Arendt and the ‘right to have rights’ The historic context of the inter-war period is relevant for contemporary debates insofar as the plight of refugees and stateless persons informed the famous dictum by Hanna Arendt portraying citizenship as the ‘right to have rights (and) . . . to belong to some kind of organised community’—in contrast to abstract personhood based on international guarantees, which Arendt associated with rightlessness.29 She was critical, consequently, when the Universal Declaration of Human Rights promoted human rights without meaningful institutional infrastructure. Nevertheless, one should be careful not to misread Arendt’s statement as a vindication of nationality-based protection regimes. Her critique transcended the forum of protection. Arendt’s usage of the terms ‘right’ and ‘citizenship/nationality’ did not follow legal categories but was based on a theoretical understanding of ‘the political’ as being embedded in constant political and social struggles.30 It should not be equated, therefore, with a call for powerful courts. An important lesson of Arendt’s work is critical awareness of the context of international instruments. To be effective they depend on domestic courts and state authorities to take up their views. Capacities preclude international bodies from dealing with literally thousands of cases; they depend on international lead judgments to radiate and to shape domestic practices. Moreover, normative preference for the position of individuals, which human rights are generally perceived to embody, should not be confused with depoliticisation or conceptual primacy of judicial avenues over political and social emancipation.31 Notwithstanding the variety of theoretical positions, of which the views of Hanna Arendt represent one camp, constitutional theorists generally recognise that human rights raise profound questions of public authority, territorial ordering, and social solidarity, which do not become irrelevant in a post-Westphalian world.

29 See Hannah Arendt, The Origins of Totalitarianism (Harcourt, Brace & Company 1951) ch 9; for a contextualisation see Seyla Benhabib, The Rights of Others (CUP 2004) ch 2. 30 See Ayten Gündoğdu, Rightlessness in an Age of Rights (OUP 2015) chs 3–4; and also Dana Schmalz, Refugees, Democracy and the Law (Routledge 2020) 51–56, 71–82. 31 See the prominent critique by David Kennedy, The Dark Sides of Virtue (Princeton UP 2004) 13–24.

Human Rights qua Personhood 129

5.2.3 Normative counterweight to state sovereignty Human rights serve as a counterweight to statist claims to migration control, amongst others since their open-ended texture lends itself for dynamic interpretation. The ECHR famously conceives of the ECHR as ‘a living instrument, which . . . must be interpreted in the light of present-day conditions’.32 Human rights convey a set of normative values and express basic choices of societies that can change over time, thus serving as a trajectory for the promotion of social justice.33 Legal arguments inevitably overlap with normative considerations when courts define the protective scope of abstract human rights norms. This potential for dynamism renders human rights attractive for anyone trying to advance the legal status of migrants. At the same time, the potential for dynamic interpretation hints at a built-in limitation. Human rights serve as a counterweight to sovereign statehood but do not render it irrelevant. International courts habitually challenge established national practices from an external viewpoint, thus often advancing the rights of migrants. Such outcomes are not, however, based on the inevitable primacy of individual rights over public interests. The ECtHR commences most judgments with a generic recognition that ‘as a matter of well- established international law and subject to its treaty obligations, a State has the right to control the entry of non-nationals into its territory’.34 Academics have criticised the underlying ‘Strasbourg reversal’35 to ground judicial deliberations on statist control prerogatives as starting point. That criticism does not undo, however, the judicial practice. Judges considerably limited state sovereignty without invalidating it. Widespread inclination to focus on ground-breaking judgments, while ignoring more constrained rulings and unsuccessful applications, can support a one-sided impression of vigorous and continuous dynamism. Holistic accounts of the ECtHR case law tend to paint, as we shall see, a more nuanced overall picture. Chapter 3.2.2 came to a similar conclusion for the judicial output of the Court of Justice, which epitomises the proverbial shades of grey. The metaphor of balance that underlies the assertion of human rights as a counterweight to state sovereignty does not mean that a stable equilibrium will be reached. The balance is bound to remain precarious for doctrinal, theoretical, and contextual reasons. Doctrinally, the open-ended texture of human rights law complicates definite statements. Judges in Europe generally treat human rights not as a trump card but as the entry ticket for a complex balancing exercise.36 Doing so reiterates the basic tension between normative utopia and interest-based realism which, according to Martti Koskenniemi, constitutes the grammar of international law.37 International courts are obliged to orientate their reasoning at the object and purpose of the instrument that is human rights protection; at the same 32 Tyrer v United Kingdom App no 5856/72 (ECtHR, 25 April 1978) § 31. 33 See generally Robert R Cover, ‘The Supreme Court, 1982 Term –Foreword: Nomos and Narrative’ (1983) 97 Harv L Rev 4; and Martti Koskenniemi, ‘Constitutionalism as Mindset’ (2007) 8 Theor Inq Law 9, 23–36. 34 First used by Abdulaziz and others v United Kingdom App nos 9214/80, 9473/81 and 9474/81 (ECtHR, 28 May 1985) § 67. 35 See Marie-Bénédicte Dembour, When Humans Become Migrants (OUP 2015) chs 1, 4; similarly, the ‘statist assumption’ of Cathryn Costello, The Human Rights of Migrants and Refugees in European Law (OUP 2016) 10–11. 36 See generally Matthias Klatt and Moritz Meister, The Constitutional Structure of Proportionality (OUP 2012). 37 See Martti Koskenniemi, From Apology to Utopia (2nd edn, CUP 2005) chs 4, 8; and also Christian Tomuschat, Human Rights (3rd edn, OUP 2014) 1–11.

130 Human Rights and State Sovereignty time, they are also legally bound to take seriously the opinion of the Contracting Parties in accordance with the law of treaties.38 Theoretically, the abstract notion of sovereignty serves as a proxy for arguments about the value of particularistic self-government. Chapter 4.2 illustrated that political theorists disagree quite fundamentally about justifications of state borders, but it is precisely this variety of normative positions which provides the theoretical background for the unattainability of an equilibrium. Chapter 1.3.1 explained why the abstract notion of an ‘area of freedom, security, and justice’ in the EU Treaties does not provide straightforward answers either. Contextually, the politicisation of migration law, traced in Chapter 3.2.3, arguably weakens the relative weight of judges. Political disputes over contemporary ECtHR judgments on migratory matters exhibit political contestation that was unheard-of during the expansive phase of the case law a generation ago.

5.3 Lead Function of the European Convention Dynamic interpretation is a comparatively new phenomenon. Insofar as the ECtHR is concerned, it started in the early 1990s at a time of widespread optimism about globalisation. Many of the judgments delivered at the time retain critical relevance as a protective shield, notwithstanding a series of rulings refraining from further expansion (5.3.1). Experts in migration law should recognise institutional constraints preventing the Strasbourg-based Court from functioning as a transcontinental court of appeal. The sheer number of individual applications requires effective cooperation with domestic courts, which the practice of the Grand Chamber supports through general principles guiding the decentralised application of the Convention (5.3.2). Previous disputes between the ECtHR and the CJEU over the transfer of asylum seekers have subsided, with both courts pursuing a viable working relationship (5.3.3). While comments hereafter assess the judicial output holistically, specific aspects of the case law will be presented as an integral part of the constitutional foundations in the sectoral chapters in Part II.

5.3.1 Judicial dynamism in the field of migration Judges in Strasbourg started dealing with migration law in earnest in the 1990s, following more than thirty years of almost complete silence—with the exception of the Abdulaziz judgment that introduced the well-known formula of state control ‘as a matter of well- established international law’ in a case concerning family formation with applicants from the former colonies.39 Things changed quickly thereafter. Articles 3 and 8 ECHR turned into veritable hotbeds of dynamic interpretation during an epoch that was described as the ‘end of history’40 to illustrate the widespread expectation that globalisation would go 38 ND and NT v Spain App nos 8675/15 and 8697/15 (ECtHR [GC], 13 February 2020) § 182 reaffirmed that the ECHR must be interpreted in line with the Vienna Convention on the Law of Treaties, including, art 31(1), (3), (4) on the intention and subsequent practice of state parties as one—not necessarily the decisive—element influencing interpretation. 39 See ch 1.1.6; for earlier decisions of the former European Commission of Human Rights see Dembour (n 35) ch 4. 40 Francis Fukuyama, The End of History and the Last Man (Free Press 1992).

Lead Function of the European Convention 131 hand in hand with a predominance of liberal constitutionalism. An integral part of this normative and discursive shift was the universalisation of the human rights discourse, which had not originally been intended fundamentally to restructure cross-border situations.41 Optimism about globalisation, including new forms of governance and membership beyond the state,42 are among the contextual factors of the dynamism—in the same manner as increasing politicisation, doubts about globalisation, and the return of geopolitical rivalry inform contemporary debates about international law.43 Experts in migration law who begin studying the subject today will find it difficult to grasp the sense of surprise with which the innovative early judgments were received, provided that they were acknowledged at all, since the Convention did not play a major role at the time. A telling example was the warning of the German federal administrative court against the ‘conversion’44 of the prohibition of torture and inhuman or degrading treatment into a de facto right to asylum. Rulings which are taken for granted nowadays were met with astonishment three decades ago. These innovations turned ECtHR judgments into an essential point of reference for anyone dealing with migration law, be it as academics or practitioners. Examples of dynamism are the human rights-based prohibition of refoulement and the transformation of the prohibition of collective expulsion into a free-standing procedural guarantee, as shown in Chapter 12.2.4 on border controls and Chapter 13.2.2 on asylum. At the same time, instances of thwarted dynamism and judicial standstill equally define the case law. Chapters 10.4 on general features will explain that the Grand Chamber treads carefully when applying the prohibition of discrimination. Chapter 15.2.2 on settlement will illustrate that judges refrained from declaring an absolute ban on expelling second- generation migrants. Denial of humanitarian visas was prominently found not to amount to an exercise of state jurisdiction, since to conclude otherwise would ‘negat[e]‌’45 statist control imperatives. Against the backdrop of these diverse findings, observers paint nuanced overall pictures. While academics often lament built-in limitations,46 practitioners occasionally warn against a slippery slope of unbound interpretation.47 Moreover, state parties and several constitutional courts called upon judges to exercise constraint,48 reiterating our earlier finding about human rights as a normative and doctrinal counterweight to—not a replacement for—state sovereignty. By way of example, British Conservatives have promised to dilute the domestic role of the Convention for years,49 and the Swiss Peoples’ Party launched a 41 See Samuel Moyn, The Last Utopia (Harvard UP 2010). 42 See the optimistic outlook by Yasemin Soysal, Limits of Citizenship (University of Chicago Press 1994); and Rainer Bauböck, Transnational Citizenship (Edward Elgar Publishing 1994). 43 See ch 13.1.6. 44 (German) Federal Administrative Court (Bundesverwaltungsgericht), Case 9 C 38.96 (judgment of 15 April 1997); see also Kay Hailbronner, ‘Artikel 3 EMRK. Ein neues europäisches Konzept der Schutzgewährung?’ [1999] Die Öffentliche Verwaltung 617, 618. 45 MN and others v Belgium App no 3599/18 (ECtHR [GC], 5 May 2020) §§ 124–25; and further ch 12.2.2. 46 See Dembour (n 35); and Costello (n 35); for a more positive outlook see Sylvie Saroléa, Droits de l’homme et migrations (Bruylant 2006) 317–83. 47 See the former President of the Belgian Constitutional Court Marc Bossuyt, Strasbourg et les demandeurs d’asile (Bruylant 2010) 105–75. 48 See Angelika Nussberger, The European Court of Human Rights (OUP 2020) chs 4, 6; and Marten Breuer (ed), Principled Resistance to ECtHR Judgments (Springer 2019). 49 See Roger Masterman, ‘The United Kingdom’ in Patricia Popelier and others (eds), Criticism of the European Court of Human Rights (Intersentia 2016) 447.

132 Human Rights and State Sovereignty referendum to the same effect, even though the ‘self-determination initiative’ was defeated in 2018.50 In the same year, the Committee of Ministers of the Council of Europe called upon the Court not usually to substitute domestic balancing in complex subject matters, such as migration, by its own assessment.51 Absence of further innovation can be rationalised, in part at least, as a judicial response to such criticism. Pleas for caution stretch from domestic constitutional courts defending their prerogatives over governments across Europe wary of restrictions on migration control to outright populist challenges to the authority of the inter-and supranational judiciary. Irrespective of underlying motives and explanations, absence of further innovation in no way diminishes the protective credentials of the earlier case law. International standards provide a safety net against potential retrogression at times of heightened politicisation.

5.3.2 Focus on general principles and the Grand Chamber Those who are not familiar with EU law should not confuse the European Court of Human Rights (ECtHR) in Strasbourg with the Court of Justice of the European Union (CJEU) in Luxembourg. While the latter can apply supranational EU legislation to the twenty-seven Member States, the former has jurisdiction over the European Convention on Human Rights (ECHR), which is binding on the forty-six members of the Council of Europe (Russia left after the war of aggression against Ukraine during 2022). While judges in Luxembourg are usually consulted via preliminary references from domestic courts, as described in Chapter 3.3 on the judicial practice, the Court in Strasbourg can be seized directly by individuals.52 Individual applications are the hallmark of the judicial architecture, which can pose significant challenges nevertheless. Judges in Strasbourg have been overwhelmed by the sheer number of applications, stretching institutional resources and creating a backlog of pending cases.53 Workload is a concern experts in migration law should not underestimate. Judges simply do not have the capacity to be a final court of appeal in thousands of cases, literally speaking. The Court’s effectiveness depends on a constructive working relationship with domestic courts applying the Convention. Judges in Strasbourg will continue dealing with individual applications to ensure that justice is done and to respond to new developments; yet the tension between ‘individual’ justice for applicants and ‘constitutional’ justice focusing on general principles cannot be resolved easily.54 Judges have to balance countervailing claims to European supervision and the prerogatives of domestic institutions on a daily basis. Interim measures are not legally binding but they can influence developments on the ground nonetheless. They have gained visibility in the field of asylum in recent years. Additional Protocol No 16, which entered into force in 2022, officially integrated the principle of subsidiarity into the last recital of the preamble. Living the basic idea behind

50 See Stefan Schlegel, ‘Eine direkte Demokratie wird in der globalisierten Rechtsordnung erwachsen’ Verfassungsblog (3 December 2018). 51 See Committee of Ministers, ‘Copenhagen Declaration’ (13 April 2018) No 28(c) https://rm.coe.int/copenha gen-declaration/16807b915c (accessed 1 March 2023). 52 See ECHR, arts 34–35. 53 See Nussberger (n 48) 23–37. 54 See Steven Greer, The European Convention on Human Rights (CUP 2006) ch 3.

Lead Function of the European Convention 133 subsidiarity, the Court has made a deliberate effort to lay down predictable standards that can guide the decentralised application of the Convention.55 Judgments of the Grand Chamber are particularly relevant. They habitually decide politically sensitive or legally difficult questions. In doing so, the Grand Chamber replicates a practice spearheaded by the German constitutional court: it distinguishes between ‘general principles’ and the ‘application to the present case’, thereby allowing practitioners and academics to identify abstract standards that can be generalised.

5.3.3 Interaction with EU law Article 6(2) TEU allows for the EU’s accession to the ECHR, and a draft accession agreement had been negotiated before it was blocked by judges in Luxembourg. Human rights limitations to Dublin transfers were one of the issues of concern on the part of the CJEU.56 Political negotiations about a revision of the accession agreement were ongoing at the time of writing. Having said this, formal accession would primarily have procedural consequences. For instance, individuals could seize the ECtHR, after having exhausted local remedies before EU courts, concerning an alleged human rights violation that can be attributed to Frontex staff.57 Accession would not, by contrast, change the constitutional status of the Convention in the EU legal order, which is formally placed at a level below primary law, like any other international treaty. In practice, these hierarchical subtleties do not matter much as long as judges in Luxembourg and Strasbourg march to the beat of the same drum. Both courts seem determined to follow that line. Chapter 13.3.6 will explain that earlier tensions over limits of mutual trust have subsided. The Court of Justice accepted the basic premises of the human rights case law concerning Dublin transfers, while the ECtHR showed restraint in several follow-up rulings. Of course, there may always be discrepancies on specific questions. Such nuances are a necessary ingredient of any pluralistic setting of overlapping jurisdiction among judges in Strasbourg, Luxembourg, and at the highest national courts. What matters is that these differences and occasional wrangles unfold in an environment of dialog and trust.58 Preconditions for such constructive cooperation are good. Article 52(3) CFR aligns the meaning of the Charter with the Convention. From a doctrinal perspective, parallelism concerns the interpretation of human rights, not the contents of secondary legislation. Comments throughout this book will show that EU legislation goes beyond the minimum level of protection under human rights law in many respects. An abstract embodiment is the concept of individual statutory rights, discussed in Chapter 6.5 on the doctrinal foundations. The distinction of principle between human rights and legislation may become blurred when the Court in Strasbourg has recourse to the ‘consensus’ argument in deciding whether to interpret the Convention dynamically.59 The consensus argument might become problematic if judges turned to the 55 See Janneke Gerards, General Principles of the European Convention on Human Rights (CUP 2019) ch 2. 56 See Opinion 2/13 Accession to the ECHR EU:C:2014:2454, paras 192–95. 57 At present, the application would be inadmissible in line with Bosphorus Airways v Ireland App no 45036/98 (ECtHR [GC], 30 June 2005) §§ 149–58. 58 See generally Aida Torres Pérez, Conflicts of Rights in the European Union (OUP 2009); and Nico Krisch, Beyond Constitutionalism (OUP 2010) ch 4. 59 See MSS v Belgium and Greece App no 30696/09 (ECtHR [GC], 21 January 2011) §§ 250–51.

134 Human Rights and State Sovereignty contents of secondary legislation, or non-binding positions of political actors, to find a consensus on how to deal with a specific topic. Doing so would effectively transform legislative commitments into constitutional prescriptions. Judgments on reception conditions illustrate the underlying doctrinal uncertainties.60

5.4 Added Value of the Charter Under the Treaty of Lisbon, the Charter of Fundamental Rights became legally binding: rights and principles therein ‘have the same legal value as the Treaties’.61 Whereas individual judgments will be discussed throughout this volume, this section concentrates on constitutional questions, thus demonstrating the doctrinal specificities and the added value of the Charter. Particularly relevant are instances where the contents of the Charter transcends guarantees in the European Convention (5.4.1). A useful example are the rights of the child, which harbour the potential for surprise outcomes (5.4.2). A legally binding Charter did not transform the European Union into a human rights organisation sensu stricto. It must respect fundamental rights and can contribute to their effective protection, but the policy output may pursue other objectives as well (5.4.3). Absence of a generic human rights policy is supported by the limited scope of the Charter, which applies to national activities only when implementing Union law (5.4.4).

5.4.1 More generous protection An original intent behind the introduction of the Charter was to make existing obligations ‘visible’,62 building upon the unwritten general principles of Union law. The Convention drafting the Charter opted for a pragmatic solution to start with. Article 52(3) CFR states in relation to fundamental rights replicating the ECHR: ‘the meaning and scope of those rights shall be the same as those laid down by the said Convention’. Such parallel interpretation defines the judicial practice. Guarantees replicating the Convention include the prohibition of torture and inhuman or degrading treatment (Article 3 ECHR, Article 4 CFR),63 human rights-based non-refoulement (Article 3 ECHR, Article 19(2) CFR),64 respect for private and family life (Article 8 ECHR, Article 7 CFR),65 the prohibition of collective expulsions (Article 4 Additional Protocol No 4 to the ECHR, Article 19(1) CFR),66 and equal treatment (Article 14 ECHR, Article 21 CFR).67 Notwithstanding occasional disagreement, references to the case law of the Court in Strasbourg is standard practice in the reasoning of the Court

60 See ch 13.2.2; and the ECtHR President Síofra O’Leary, ‘L’ELSJ à la Cour européenne des droits de l’homme’ in Véronique Beaugrand and others (eds), Sa justice (Bruylant 2022) 575, 587–94. 61 TEU, art 6(1). 62 CFR, recital 4. 63 See Joined Cases C-411/10 and C-493/10 NS and others EU:C:2011:865, paras 86–88, 109–14. 64 Case C-239/14 Tall EU:C:2015:824, paras 53–54 confirmed that Article 19(2) CFR codifies ECtHR case law on Article 3 ECHR. 65 See Case C-400/10 PPU McB EU:C:2010:582, para 53. 66 Parallelism ensues from Article 52(7) CFR read in conjunction with the ‘Explanations relating to the Charter’ [2007] OJ C303/17, 24. 67 See Joined Cases C-199–201/12 X, Y and Z EU:C:2013:720, para 54.

Added Value of the Charter 135 of Justice in Luxembourg, despite the EU not having formally acceded, as we have seen, to the European Convention. At the same time, the Charter contains new guarantees that may develop a life of their own. Such dynamism will usually develop over time in a process of discovery. Procedural guarantees, for instance, have gained momentum in the case law on migration: the rights to good administration, to an effective remedy, and of the defence will feature in Chapter 7 on the administrative dimension. In other respects, the Charter is less dynamic. It reiterates the free movement of Union citizens, while simultaneously confirming that is does not cover third country nationals.68 With regard to some articles, it remains difficult to say how the Charter relates to the Convention. Chapter 13.2.3.2 will discuss ambiguities surrounding the right to asylum, and the question of extraterritorial effects will feature in Chapter 12.2.2 on border controls. At an intermediate level of abstraction, two distinctions stand out. While the Convention lists grounds for interferences in the wording of each provision, the Charter contains a horizontal rule, in Article 52(1) CFR, on when limitations can be justified. That is relevant, in particular, for detention where Article 5 CFR might establish stricter justification requirements, as argued in Chapter 16.2.2 on detention. Moreover, the Charter contains both individual rights and abstract ‘principles’. Principles cannot be relied upon autonomously, although legislation adopted to implement them may have to be interpreted in light of the Charter in accordance with Article 52(5) CFR. Principles are particularly relevant for social guarantees enshrined in Title IV on solidarity, although the Charter abstains from specifying which provisions exactly contain principles instead of individual rights.69 Social rights and principles have been mentioned occasionally in judgments on migration, albeit without transformative effects.

5.4.2 Rights of the child as an example Substantial dynamism may emanate from the rights of the child in Article 24 CFR, notably the obligation that ‘the child’s best interests must be a primary consideration’. Special attention to the child’s best interests may not add much substance doctrinally, since it replicates core guarantees under the United Nations Convention on the Rights of the Child of 1989,70 which the ECtHR integrated into the interpretation of Article 8 ECHR on a previous occasion.71 The Court in Strasbourg holds the best interests formula not to be a ‘trump card’72 obliging state parties to always do what is best for a child; countervailing interests can be considered. On the whole, judges take the rights of the child seriously but do not systematically prioritise their interests in the balancing exercise.73 A specific expression is the

68 On CFR, arts 15, 45 see ch 1.3.2. 69 See Niilo Jääskinen, ‘Fundamental Social Rights in the Charter’ in Steve Peers and others (eds), The EU Charter of Fundamental Rights. A Commentary (2nd edn, CH Beck/Hart Publishing/Nomos 2021) 1855. 70 Adopted 20 November 1989, entered into force 2 September 1990, 1577 UNTS 3. 71 See the dynamic interpretation in light of an international consensus by Nunez v Norway App no 55597/09 (ECtHR, 28 June 2011) § 84. 72 IAA and others v United Kingdom App no 25960/13 (ECtHR, 8 March 2016) § 46. 73 See Ciara Smyth, ‘The Best Interests of the Child in the Expulsion and First-Entry Jurisprudence of the European Court of Human Rights’ (2015) 17 EJML 70.

136 Human Rights and State Sovereignty administrative detention of minors, which must only be used as a ‘last resort’, as explained in Chapter 16.2.2 on return. Balancing between the child’s interests and countervailing policy objectives is ingrained in the ‘best interests’-formula as a result of careful drafting. Note that the wording refers to the best interests as ‘a’ (not the) ‘primary’ (not paramount) concern.74 The contrast stands out when you compare the careful wording of Article 3 Convention on the Rights of the Child to the stricter formulation in a previous, non-binding Declaration.75 Interpreting Article 24 CFR, the Court of Justice has followed this rationale to start with when judges in Luxembourg emphasised the need for balancing.76 On many occasions, Article 24 CFR was mentioned as one argument amongst others in the interpretative exercise, without explaining to what extent the outcome depended on human rights.77 Such vagueness mirrored a general tendency towards interpretative ambivalence, traced in Chapter 6.5.3 on the doctrinal foundations. However, several cases concerning family reunification with unaccompanied minors turning years old seemed to mark the potential beginning of judges drawing more specific conclusions from Article 24 CFR during the 2020s. They will be mentioned in Chapter 14.2.3 and 14.3.5 on legal migration. Judgments prohibiting the adoption of return or transfer decisions against unaccompanied minors, to be discussed in Chapter 16.5.5 on return and Chapter 13.3.3 on the Dublin system, appeared to signal an increasing momentum behind Article 24 CFR. Room for future innovation may be found in the domain of refugee status determination with regard to children.78 Introduction of a free-standing guarantee, as opposed to dynamic interpretation of Article 8 ECHR, arguably reinforced the prospect of unexpected effects. Having said this, such outcome will typically be context-specific, mirroring the factual and doctrinal specificities of the case at hand. In other scenarios, the balancing exercise inherent in the ‘best interests’-formula may tilt in a different direction. The legal effects of Article 24 CFR remain notoriously difficult to predict.

5.4.3 EU not a ‘human rights organisation’ It is beyond doubt that the EU must respect human rights and that many of its policies concern highly sensitive matters. In that respect, the supranational institutions have an important role to play in upholding and promoting human rights, in line with the basic commitment of Article 2 TEU that the Union ‘is founded on’ respect for human rights. Nevertheless, the constitutional duty to respect human rights does not turn the EU into a fully-fledged ‘human rights organisation’, as academic commentators had originally requested.79 Migration law demonstrates the difference. Articles 77–80 TFEU embrace 74 French: ‘doit être une considération primordiale’; see further Geraldine Van Bueren, The International Law on the Rights of the Child (Martinus Nijhoff 1998) 45–51. 75 See UNGA, ‘Declaration on the Rights of the Child’ (Resolution 1386 (XIV), 20 November 1959). 76 See eg Case C-635/17 E EU:C:2019:192, paras 56–67; and Case C-129/18 SM EU:C:2019:248, paras 62, 66–68. 77 See Case C-233/18 Haqbin EU:C:2019:956, paras 53–55; Case C-648/11 MA and others EU:C:2013:367, paras 57–60; Joined Cases C-356/11 and C-357/11 O and S EU:C:2012:776, paras 76–80; and Mark Klaassen and Peter Rodrigues, ‘The Best Interests of the Child in EU Family Reunification Law’ (2017) 19 EJML 191. 78 See ch 13.5.3; and Ciara Smyth, ‘The Human Rights Approach to “Persecution” and its Child Rights Discontents’ (2021) 33 IJRL 238, 265–75. 79 See Philip Alston and Joseph HH Weiler, ‘An “Ever Closer Union” in Need of a Human Rights Policy’ in Philip Alston and Joseph HH Weiler (eds), The EU and Human Rights (OUP 1999) 3.

Added Value of the Charter 137 diverse objectives for law-making and do not orientate supranational policies at the primary—let alone sole—objective of promoting human rights, mirroring the job description of some international organisations.80 That is not to say, crucially, that other policy considerations should take priority. Political processes do not, however, revolve around human rights as the alpha and omega of the EU’s mission statement. At a textual level, Article 78(1) TFEU fits into the overall picture when it calls on the institutions to develop common policies ‘ensuring compliance with the principle of non- refoulement’; secondary legislation ‘must be in accordance’ with the Refugee Convention. This prescription integrates, as we shall see, the substance of the Refugee Convention into the supranational legal order as a judicially enforceable benchmark. It does not, however, oblige EU institutions actively to promote a ‘spirit’ of the Convention beyond respect for legal commitments.81 To do so may be desirable in many circumstances, but Article 78(1) TFEU does not prevent the legislature from taking into account other objectives. EU asylum policy, in particular, is full of examples of how other policy objectives prevail over human rights concerns. Of course, actors within the institutions and other participants in the policy debate can petition for an active human rights policy, even in the absence of a constitutional prescription to go beyond the level of protection enshrined in the Charter. Reference to human rights and generic ‘values’ are standard practice in the public discourse on migration, also as a counterweight to the emphasis on a ‘European that protects’ or European ‘sovereignty’.82 The interdisciplinary Chapter 4.3 demonstrated that the use of language can have framing effects upon political preferences, thus presenting a semantic trajectory for a greater emphasis on human rights.

5.4.4 Limited scope of application of the Charter A specific expression of the EU’s functional outlook on human rights is the limited scope of the Charter, which applies to the Member States ‘only when they are implementing Union law’.83 The European Union is neither a human rights organisation nor a federal state with an overarching bill of rights covering any domestic activity. Settled case law reaffirms that Member States are bound by the Charter ‘within the scope of European Union law’.84 The Charter is, so to say, the ‘shadow’ of Union law; just as an object defines the contours of its shadow, the scope of Union law determines the field of application of the Charter.85 Despite that seemingly clear-cut starting point, the precise definition of the scope is subject to debate.

80 See Mark Dawson, The Governance of EU Fundamental Rights (CUP 2017); and Armin von Bogdandy, ‘The European Union as a Human Rights Organisation?’ (2000) 37 CML Rev 1307. 81 Similarly see Piotr Sadowski, ‘A Safe Harbour or a Sinking Ship?’ (2019) 11 EJLS 29, 56–57; for a different position see Violeta Moreno-Lax, ‘Life after Lisbon’ in Diego Acosta Arcarazo and Cian C Murphy (eds), EU Security and Justice Law (Hart Publishing 2014) 146, 148–49. 82 See ch 1.2.6. 83 TFEU, art 51(1). 84 Case C-617/10 Åkerberg Fransson EU:C:2013:280, para 19. 85 See Koen Lenaerts and José Antonio Gutiérrez-Fons, ‘The Place of the Charter in the EU Constitutional Ediﬁce’ in Peers and others (n 69) 1711, 1713.

138 Human Rights and State Sovereignty Judgments indicate that the Charter applies whenever state action responds to a supranational obligation. Thus, domestic legislation and administrative activities transposing or implementing a directive or regulation can be assessed in light of the Charter.86 By contrast, the Charter does not apply whenever secondary law does not regulate specific subject areas. One may activate national constitutions or the ECHR instead, but the Court of Justice does not hold jurisdiction.87 Any domestic application of the Charter requires, therefore, careful inspection of whether the factual circumstances and the domestic rules in question are covered by one of the EU migration law instruments ratione materiae, personae, temporis, and loci. Doing so is comparatively straightforward for national legislation. By way of example, the Charter applies to the living conditions of those with subsidiary protection as far as Articles 20–35 Qualification Directive 2011/95/EU regulate their status, while the same subject areas cannot be analysed in light of the Charter for those awarded complementary humanitarian protection under domestic laws not subject to EU harmonisation.88 Competences in Articles 77–80 TFEU do not bring about an application of the Charter before the adoption of secondary legislation; the option of future legislation is not enough.89 By contrast, the exercise of national implementing discretion can be judged in the light of the Charter whenever Member States have different options on how to achieve the objective prescribed in a directive or regulation.90 Such implementing discretion must be distinguished from optional clauses not to apply secondary legislation to specific scenarios; corresponding national provisions are not covered by the Charter.91 It may occasionally be difficult to determine whether a situation concerns implementing discretion or optional derogations, as the example of the discretionary clause in Article 17(1) Dublin III Regulation (EU) No 604/ 2013 illustrates.92 Procedural rules must respect the Charter within the scope of national procedural autonomy, including the right to an effective judicial remedy. Difficult to assess are operational activities. By way of example, the Charter applies only to those border control activities for which the Schengen Borders Code or related instruments lay down specific obligations, while other control measures cannot usually be scrutinised in light of the Charter.93 What this entails for border surveillance in-between the official crossing points remains largely uncharted territory at this juncture. By comparison, standards for the supervision of projects co-financed under the EU budget are straightforward: the Charter serves as a yardstick for the selection criteria when determining which projects receive funding, while the actual realisation of the projects is not usually covered.94

86 For typologies see Benedikt Pirker, ‘Mapping the Scope of Application of EU Fundamental Rights’ (2018) 3 European Papers 133; and Filippo Fontanelli, ‘Implementation of EU Law through Domestic Measures after Fransson’ (2014) 39 EL Rev 682, 689–97. 87 See Åkerberg Fransson (n 84) para 44. 88 See Case C-542/13 M’Bodj EU:C:2014:2452, paras 42–46; and Case C-312/12 Ajdini EU:C:2013:103, para 25. 89 See Joined Cases C-609/17 and C-610/17 TSN and AKT EU:C:2019:981, paras 46–52. 90 See Case C-540/03 Parliament v Council EU:C:2006:429, paras 22–23, 104–105. 91 See Case C-94/20 Land Oberösterreich EU:C:2021:477, paras 45–58. 92 See ch 13.3.4. 93 See Case C-23/12 Zakaria EU:C:2013:24, paras 39–42. 94 See Case C-401/11 Soukupová EU:C:2013:223, paras 28–31.

Complementary Role of International Bodies and Political Fora 139

5.5 Complementary Role of International Bodies and Political Fora Courts in Europe have traditionally been perceived as forerunners of human rights dynamism. Their visibility rested on institutional potency, was buttressed by innovative rulings, and reflected the prevalent hegemony of academics working on and in Western countries. Recent years have witnessed a shift of attention to developments elsewhere. For our purposes, treaty bodies at the European or international levels are particularly relevant (5.5.1). Their output has recently become a source of inspiration for critical scholars, although findings will not usually be legally binding (5.5.2). In addition to treaty bodies, international organisations and diplomatic initiatives are important (5.5.3), as exemplified by the Global Compacts on Refugees and for Migration, adopted in 2018 (5.5.4). Furthermore, foreign courts may have to be considered occasionally, when reviewing cooperation of third states with the EU.

5.5.1 Plethora of human rights treaty bodies On the European continent, the Court in Strasbourg is a primus inter pares but not the sole human rights body. The Council of Europe’s European Social Charter (ESC) complements the civil and political rights in the ECHR with ‘second generation’ guarantees about economic and social matters, which are subject to a monitoring mechanism by an international expert committee.95 Guarantees in the ESC must be activated by state parties on a case- by-case basis and are often narrowly construed so as not to bring about far-reaching assurances.96 Nevertheless, they can inform the status of economic migrants and other third country nationals with a residence permit. Guarantees in the ESC inspired the design of equal treatment provisions in secondary legislation. Chapter 16.2.3 will show that proposals have been put forward to overcome explicit limitations to people lawfully resident or working regularly. Asylum applicants and irregular migrants will often rely on human rights-based non- refoulement, as presented in Chapter 13.2.2 on asylum. In comparison to these entrenched guarantees, the added value of the United Nations Convention against Torture (CAT)97 and the European Convention for the Prevention of Torture (CPT)98 lies in the committees of independent experts. Both committees may express views in country reports, on the occasion of general comments, or in response to individual complaints in line with the procedural rules of the instrument in question. Additional procedural avenues exist under other multilateral human rights conventions, including the Human Rights Committee under the International Covenant on Civil and Political Rights (ICCPR). Other relevant treaty bodies 95 Revised European Social Charter (adopted 3 May 1996, entered into force 1 July 1999) ETS No 163, which has been ratified by many Member States, while the others are still bound by the original European Social Charter (adopted 18 October 1961, entered into force 26 February 1965) ETS No 35. 96 ibid art A(1) part III; and generally Karin Lukas, The Revised European Social Charter: An Article by Article Commentary (Edward Elgar Publishing 2021). 97 United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (adopted 10 December 1984, entered into force 26 June 1987) 1465 UNTS 85; and additional protocols. 98 Adopted 26 November 1987, entered into force 1 February 1989, ETS No 126, as amended by Protocol No 1 and No 2 (adopted 4 November 1993, entered into force 1 March 2002) ETS Nos 151 and 152.

140 Human Rights and State Sovereignty in the field of migration include the Committee on Economic, Social and Cultural Rights and the Committee on the Rights of the Child.

5.5.2 Potential source of dynamism in the field of migration An overall assessment of the output of treaty bodies is complicated by the predominance of abstract country reports and general comments. Not surprisingly, observers have found ambivalence. While international bodies follow—or stay behind—the ECtHR in many respects, they can serve as a source of innovation in other regards.99 There are indications that the restrictive turn of EU asylum policy may have resulted in a new vigour of international bodies. For instance, the Committee on the Rights of the Child (CRC) sanctioned the Spanish policy of ‘hot returns’, which the ECtHR found to be compatible with the prohibition of collective expulsions.100 Chapter 12.2.2 on border controls will mention that the Human Rights Committee (HRC) held Italy responsible for not having undertaken enough efforts to rescue migrants on a boat in distress, in what might possibly pave the way for a relaxation of the jurisdiction yardstick. It was not clear, at the time of writing, whether these instances remained isolated phenomena or heralded the emergence of an era where international treaty bodies would replace courts in Europe as forerunners of human rights dynamism. It was uncertain, moreover, whether courts in Europe would integrate such momentum into their reasoning, or whether we would observe a trend towards interpretative pluralism. Indeed, the position of international expert bodies is not usually legally binding. States made a conscious choice to speak of ‘committees’ delivering ‘views’ or ‘opinions’, instead of ‘courts’ and ‘judgments’. Their position is not legally binding inter partes, nor does it amount to authentic interpretation of human rights treaties.101 By way of example, the International Court of Justice (ICJ) did not follow the argument, put forward by a committee, that travel restrictions for nationals of specific states amount to direct or indirect discrimination on grounds of ethnic origin or race.102 Positions of international treaty bodies must be considered as one element amongst others when analysing international human rights law. To be effective, treaty bodies depend on domestic or supranational courts to translate their views into legally binding output. An inspection of the practice of the ECtHR and the CJEU indicates mixed results. Judges in Strasbourg regularly employ the consensus argument to integrate the contents of multilateral conventions into the interpretation of human rights. By contrast, views of international bodies feature less prominently in the reasoning, mirroring the practice of most domestic courts, which typically accommodate international findings selectively.103 Therefore, any newfound dynamism of treaty bodies in 99 For an overview see Başak Çalı, Cathryn Costello, and Stewart Cunningham, ‘Hard Protection through Soft Courts?’ (2020) 21 GLJ 355. 100 Contrast Committee on the Rights of the Child, DD v Spain (CRC/C/80/D/4/2016, 1 February 2019) Nos 14.4–14.6; to ND and NT v Spain (n 38). 101 See Case C-249/96 Grant EU:C:1998:63, para 46; Tomuschat (n 37) chs 6–8; and Georg Nolte, Fourth Report on Subsequent Agreements and Subsequent Practice in Relation to Treaty Interpretation (UN doc A/CN.4/694, 7 March 2016) 9–27. 102 See ch 10.4.4. 103 See Machiko Kanetake, ‘UN Human Rights Treaty Bodies Monitoring before Domestic Courts’ (2018) 67 ICLQ 201.

Complementary Role of International Bodies and Political Fora 141 the field of migration need not trickle down to legally binding judicial output at the national or European levels. In contrast to the ECtHR, the CJEU is known for an introverted style of reasoning. Whereas judges in Luxembourg regularly refer to the Court in Strasbourg nowadays, they hardly ever mention international instruments. One of the few examples to the contrary is the action of annulment the European Parliament had brought—unsuccessfully—against certain provisions of the Family Reunification Directive.104 At the time, international instruments compensated for the absence of a legally binding Charter before the Treaty of Lisbon. Today, the Court does not even discuss the international perspective if secondary legislation, such as the Return Directive 2008/115/EC, refers to international human rights law.105 We shall see a similar focus on European affairs in the case law on refugee status with regard to the position of UNHCR.

5.5.3 Special rapporteurs and diplomatic initiatives There is not always a strict separation between executive and judicial functions at the international level when it comes to human rights monitoring. Legal considerations may coalesce with policy advice, for instance in country reports of international treaty bodies. Other examples of practical overlap are special rapporteurs appointed within the UN system, for instance against torture or for the human rights of migrants, as well as the Commissioner for Human Rights within the Council of Europe. Their mission statements cover the drafting of reports, recommendations, or other output through a combination of legal considerations and policy advice. Position papers of UNHCR often follow this model. Such combination can be useful in many respects as long as observers do not confuse these positions with firm legal statements. Meanwhile, international diplomacy has moved away from the earlier practice of negotiating multilateral agreements. Lengthy ratification procedures, lack of consensus about the way forward, and reluctance on the part of states to submit to legally binding rules rendered the choice for ‘hard law’ unattractive.106 A telling example is the UN Migrant Workers Convention, which entered into force almost thirteen years after adoption in 1990. Even then, success was muted: not a single Member State of the EU ratified the Convention; they were unhappy with what they perceived to be one-sided obligations, including for workers who are illegally present.107 The fate of the UN Migrant Workers Convention reiterates our general conclusion, in Chapter 18.1 on the external dimension, about inter-state cooperation being complicated by power asymmetries and conflicts of interest between destination countries and home states.

104 See Parliament v Council (n 90) paras 37, 57. 105 See Tamás Molnár, The Interplay between the EU’s Return Acquis and International Law (Edward Elgar Publishing 2021) ch 3. 106 See Chetail (n 3) 280–99. 107 See ch 16.2.3; and Ryszard Cholewinski, Migrant Workers in International Human Rights Law (Clarendon Press 1997) 186–204.

142 Human Rights and State Sovereignty

5.5.4 Global Compacts for Migration and on Refugees Negotiations on the Global Compact for Safe, Orderly and Regular Migration and on the Global Compact on Refugees were emblematic of intergovernmental struggles. Both compacts were adopted in 2018 and are, as resolutions of the UN General Assembly, not legally binding.108 Whereas negotiations on the Global Compact on Refugees proved less troublesome, the contents evaded controversial topics, such as access to asylum, and failed to establish a robust framework for responsibility sharing.109 One step further, the Global Compact for Migration was caught by the political salience of migration policies in the European public discourse. Several Member States voted against it in the General Assembly, although the EU had been reasonably successful in influencing the basic contours and the small- print of the final outcome during negotiations.110 It deals with various aspects of migration law and touches upon important subject matters which are not subject to extensive international obligations so far. That broad thematic scope of the Global Compact for Migration was a novelty, transcending the traditional focus of the international debate on development issues, which will be traced in Chapter 18.4 on the external dimension. Adoption could possibly mark the beginning of a truly global discourse in the years to come. However, its lasting impact will ultimately depend on whether states can agree to put the abstract declarations of intent into practice by means of domestic laws or inter-state cooperation. Indeed, the Global Compact for Migration does not present itself as a blueprint for a legally binding universal convention. The text states explicitly that the objectives enshrined therein shall be realised at the regional level and in bilateral relations primarily.111 The UN stands ready, together with IOM and the UNHCR, to serve as a facilitator for regional and bilateral cooperation.112 International actors will not, however, develop solutions top-down for how states across the world are to respond to context-specific challenges. Two brief examples illustrate that the Global Compact for Migration is full of diplomatic compromise formulae. First, states ‘commit to ensure that nationals are duly received and readmitted’. This emphasis on the obligation to take back migrants staying irregularly is complemented by a promise of the receiving countries to ‘facilitate’ access to regularisation procedures, subject to ‘an individual assessment . . . on a case-by-case basis’.113 We do not learn when option A (return) should take priority over option B (regularisation), which, moreover, was formulated so as to leave receiving states much leeway. Even if the Compact was legally binding, which it is not, courts would find it difficult to deduce hard legal obligations from it. Secondly, climate change featured prominently in the negotiations, and the outcome may sound impressive. States pledge to ‘[c]‌ooperate to identify, develop, and strengthen solutions for migrants compelled to leave’ their home state owing to natural disasters, climate 108 See Global Compact for Migration (n 10); and UNGA, ‘Global Compact on Refugees’ (Resolution 73/151, 17 December 2018). 109 See James C Hathaway, ‘The Global Cop-Out on Refugees’ (2018) 30 IJRL 591; and Alexander Aleinikoff, ‘The Unfinished Work of the Global Compact on Refugees’ (2018) 30 IJRL 611. 110 See Juan Santos Vara and Laura Pascual Matellán, ‘The Global Compact on Migration’ in Elaine Fahey (ed), Framing Convergence with the Global Legal Order (Hart Publishing 2020) 163, 167–72. 111 See Global Compact for Migration (n 10) Nos 40–47. 112 See also Colleen Thouez, ‘Strengthening Migration Governance’ (2019) 45 JEMS 1242. 113 Global Compact for Migration (n 10) Objective 21 No 37, Objective 7 No 23(i).

Refugee Convention: Distant Lodestar 143 change, or environmental degradation.114 Such abstract commitment to cooperative solutions is a far cry from a clear-cut obligation to admit on an individual basis, let alone recognition of the legal category of ‘climate refugee’, discussed in Chapter 13.5.3.4 on asylum. Note that climate-induced movements featured primarily in the Global Compact for Migration, thus marking a symbolic distance from refugee protection in the parallel document.115

5.6 Refugee Convention: Distant Lodestar The Refugee Convention is commonly described as the ‘magna carta’ for refugee protection.116 That is appropriate insofar as the New York Protocol of 1966 turned the Convention into the founding document of refugee law by withdrawing earlier limitations in time and space. The Convention reminds the international community of the legal, ethical, and political importance of protecting refugees; it also serves as a unifying point of reference for legal rules and policy developments worldwide. At the same time, conceptual significance does not necessarily translate into tangible impact on everyday practices. Notwithstanding the mythical aura of perfection inherent in the designation as ‘magna carta’, the text remains largely silent on core issues of contemporary asylum policy, such as access to territory or status determination procedures. The Convention resembles a lodestar more than a constitutional document; it indicates the direction but does not usually give detailed guidance on how to answer specific questions. Article 78(1) TFEU states unequivocally that EU institutions must respect the Refugee Convention, meaning that non-compliance may be sanctioned by the Court of Justice (5.6.1). In spite of this, the Convention has a limited impact on everyday legal practices; it lacks the institutional support of international treaty bodies, and the position of UNHCR is not legally binding. Judges at the Court of Justice prefer classic arguments of statutory interpretation to active engagement with international practice (5.6.2). Human rights take centre stage in most contemporary debates about asylum law and policy in Europe nowadays (5.6.3).

5.6.1 Interaction with Union law Unlike the Member States, the EU has not formally acceded to the Refugee Convention. Primary law may encompass an exclusive external competence for most matters covered by it nowadays, but the Convention does not allow for the EU’s accession.117 Political initiatives to seek accession have been abandoned quietly.118 The option of a unilateral declaration, on the part of the EU, to commit itself formally on the international plane to adhere to

114 ibid Objective 5 No 21(i). 115 cf Global Compact on Refugees (n 108) Nos 8, 12, 63; and see Jane McAdam, ‘Swimming against the Tide’ (2011) 23 IJRL 2. 116 The formula goes back to the first UN Deputy High Commissioner James M Read, Magna Carta for Refugees (UN Department of Public Information 1951). 117 See Refugee Convention, art 39(2); on the scope of external treaty-making powers see ch 18.2.1. 118 cf The Stockholm Programme [2010] OJ C115/1, 32.

144 Human Rights and State Sovereignty the Refugee Convention has not been realised so far;119 neither has it assumed the responsibilities of the Member States as state parties by way of functional succession, following the earlier example of the GATT.120 As a result, Member States continue to appear separately in the conference of state parties and the related forum of the UNHCR Executive Committee. In doing so, they are legally bound to represent the EU’s viewpoint.121 The Council could even adopt formal decisions under Article 218(9) TFEU determining positions national governments would have to support.122 During negotiations on the Global Compacts, such coordination was mostly successful. There is little doubt that EU institutions are committed to respect the Refugee Convention as a matter of principle. Doctrinally, however, Article 78(1) TFEU sets out a free-standing obligation under Union law. Such internal commitment prevents a mismatch between the obligations of the Member States under public international law and supranational asylum legislation.123 Judges in Luxembourg are compelled, qua Article 78(1) TFEU, to respect the Refugee Convention when interpreting asylum legislation. In doing so, the Court serves as the ultimate arbiter of how to interpret the Convention within the EU legal order, and domestic courts are bound to follow its guidance. By contrast, domestic courts remain free to interpret the Refugee Convention and to determine its effects under national constitutional law whenever a subject matter is not harmonised at the EU level. A rare example of such residual authority of the Member States are sanctions for unlawful entry or presence under Article 31 Refugee Convention, which the Court found, controversially so, not to be covered by supranational legislation.124 Within the EU legal order, Article 78(1) TFEU elevates the Convention to the rank of constitutional law. Non-compliance constitutes an infringement of the Treaties requiring an interpretation of secondary legislation in conformity with the Convention, or possibly even annulment.125 This has been reaffirmed in welcome clarity by the Court repeatedly over the years.126 When interpreting the Refugee Convention judges have recourse to general principles on how to interpret international treaties.127 Incorporation into Union law does not alter its international legal characteristics, notwithstanding the potential of subtle changes if all language versions of the Qualification Directive are equally valid.128 Reference to the ‘Geneva Convention’ in the English wording of Article 78(1) TFEU mirrors the semantic tradition in many continental jurisdictions, while the international debate in the English language usually refers to the ‘Refugee Convention’, as does the author of this volume. It informs the contents and interpretation of the Qualification Directive 2011/95/EU, whose

119 For the parallel debate about international humanitarian law see Nicholas Tsagourias, ‘EU Peacekeeping Operations’ in Martin Trybus and Nigel White (eds), European Security Law (OUP 2007) 102, 115–18; the internal commitment under Article 78(1) TFEU must be distinguished from a commitment at the international level. 120 See Case C-481/13 Qurbani EU:C:2014:2101, para 23; and Hemme Battjes, European Asylum Law and International Law (Martinus Nijhoff 2006) 79–80. 121 See Case C-45/07 Commission v Greece EU:C:2009:81, paras 30–31 for the IMO. 122 See Case C-399/12 Germany v Council EU:C:2014:2258, paras 48–68 in relation to a different organisation. 123 See Battjes (n 120) 59–61, 167–68. 124 See ch 16.3.3. 125 See Joined Cases C-391/16, C-77/17 and C-78/17 M and others EU:C:2019:403, paras 75, 77. 126 It has been settled case law ever since Joined Cases C-175/08, C-176/08, C-178/08 and C-179/08 Abdulla EU:C:2010:105, paras 51–53. 127 See (German) Federal Constitutional Court (Bundesverfassungsgericht), Case 2 BvR 450/11 (decision of 8 December 2014) para 37; and generally Case C-63/09 Walz EU:C:2010:251, paras 22–23. 128 See ch 6.4.1.

Refugee Convention: Distant Lodestar 145 Recital 23 states explicitly that the Directive should ‘guide the competent national bodies of Member States in the application of the Geneva Convention’.

5.6.2 Supporting role in the judicial practice One of the structural weaknesses of the Refugee Convention is the absence of a judicial body, at the international plane, to interpret the Convention authoritatively in light of present- day conditions. Inter-state disputes before the ICJ in accordance with Article 39 have remained a theoretical option. Unlike contemporary human rights instruments, the Refugee Convention did not set up an independent expert body; accordingly, UNHCR has a crucial role to play in terms of ‘supervising the application’.129 It performs this executive function in a dynamic and often innovative manner; evident through interventions in domestic legislative debates, publication of guidelines and the Handbook on status determination, even the coordination of diplomatic initiatives as with Global Compact on Refugees.130 In addition, state parties represented in the UNHCR Executive Committee (ExCom) used to play an active part for many decades, before the body turned more passive as of recently. Valuable contributions on the part of the UNHCR cannot, however, compensate for the absence of a judicial body; its positions are not legally binding, also considering that they often combine questions of legal interpretation with political considerations of what an appropriate solution would be.131 In the absence of international judicial oversight, domestic courts and the Court of Justice interpret the Refugee Convention on the basis of the interpretative standards of the law of treaties. To do so requires tribute to the position of the UNHCR, consideration of state practice, and respect for the Convention’s telos to protect refugees effectively.132 Such decentralised adjudication of open-ended provisions inevitably results in differences of opinion among courts, as well as the academic debate, concerning the ‘correct’ meaning; different views will often co-exist. In light of this, one of the added values of Europeanisation stands out: legislative harmonisation in the Qualification Directive and its authoritative interpretation by the CJEU establishes a common understanding domestic authorities and courts are bound to follow. In doing so, judges in Luxembourg would ideally consider the views of international actors, in particular UNHCR, and other domestic courts across the world in an exercise of transnational judicial dialogue. In this respect, the supranational judicial output presents us with a nuanced picture. While the Court generally recognises, in line with Recital 22 Qualification Directive 2011/ 95/EU, that the opinions of UNHCR ‘are particularly relevant’,133 it occasionally presented a different outcome. Instances of divergence will be discussed in Chapter 13.5.4.6 on asylum, for instance with regard to the meaning of ‘membership of a particular social group’. Such parting is not problematic per se, given that the UNHCR cannot interpret the Convention 129 Refugee Convention, art 35(1); and also UNGA, ‘Statute of the Office of the United Nations High Commissioner for Refugees’ (Resolution 428 (V), 14 December 1950), No 8(a). 130 See generally Corinne Lewis, UNHCR and International Refugee Law (Routledge 2012). 131 See James C Hathaway, The Rights of Refugees under International Law (2nd edn, CUP 2021) 58–67; and Case 2 BvR 450/11 (n 127) para 45. 132 See generally Vienna Convention on the Law of Treaties, art 31. 133 Case C-720/17 Bilali EU:C:2019:448, para 57; see also Case C-369/17 Ahmed EU:C:2018:713, paras 56–57; and Case C-528/11 Halaf EU:C:2013:342, paras 44–47.

146 Human Rights and State Sovereignty authoritatively, but the judicial practice disappointed many observers, nonetheless, since judges did not reflect upon the discrepancies and underlying reasons openly.134 Of course, silence in the official reasoning need not be misunderstood as ignorance, especially if the Advocate General discussed the matter.135 We should also recognise that the Court does not usually cite legal material other than judgments of its own and of the ECtHR.136 Therefore, prevalent silence is not a sign of disrespect specifically for UNHCR, also considering its positions have occasionally been referred to.137 Nevertheless, one is bound to notice an introverted style of reasoning when reading the judgments. Interpretation of the Qualification Directive often concentrates on questions of statutory interpretation in light of the wording, general scheme, objectives, telos, or drafting history.138 A different outlook is presented by the European Court of Human Rights (ECtHR), which is generally receptive to international law. It regularly reproduces the positions of UNHCR and other international actors and takes them up in the reasoning, although it may depart from the views of the UNHCR when assessing the situation in a specific country or when deciding questions of principle. For example, judges disagreed with the UNHCR (without saying so explicitly) when they considered parts of Somalia to be an internal flight alternative or when they laid down comparatively generous standards for the detention of asylum seekers at the point of entry.139 By contrast, the Court relied extensively on the UNHCR when it found the Greek asylum system to suffer from systemic deficiencies in 2011 or when it considered Syria to be generally unsafe a few years later in light of human rights-based non-refoulement obligations.140 Many observers expected the Court of Justice to become an internationally recognised authority for the interpretation of the Refugee Convention.141 That is not to say that it would become a judicial hegemon, but the position of an international court speaking for twenty- six Member States (excluding Denmark, as a result of its opt-out) entails visibility, which is further enhanced by the translation of all judgments into the widely understood languages of English, French, Spanish, and Portuguese.142 Undoubtedly, EU legislation and Court judgments have a global reach anybody studying refugee law is bound to take into account. Europeanisation increased the visibility of views from continental Europe next to the position of courts from Commonwealth countries and the US, which had dominated

134 See Roland Bank, ‘The Potential and Limitations of the Court of Justice of the European Union in Shaping International Refugee Law’ (2015) 27 IJRL 213, 222–36; and Ségolène Barbou des Places, ‘Droit de l’asile et de l’immigration’ [2019] Revue trimestrielle de droit européen 175, 185–86. 135 By way of example see Case C-507/19 Bundesrepublik Deutschland EU:C:2021:3, paras 46–50; and AG Evgeni Tanchev, Opinion in ibid, EU:C:2020:768, points 41–45. 136 This would probably change if international organisations were given the right to intervene in the proceedings; see ch 3.1.4. 137 See Case C-91/20 Bundesrepublik Deutschland EU:C:2021:898, paras 56–57. 138 See ch 3.2.2; and Hemme Battjes, ‘Piecemeal Engineering’ in Vincent Chetail and others (eds), Reforming the Common European Asylum System (Brill 2016) 197, 214–28; and Lars Bay Larsen, ‘Quelques remarques sur les relations entre le droit international et le régime d’asile européen commun’ in Antonio Tizzano and others (eds), La Cour de justice de l’Union européenne sous la présidence de Vassilios Skouris (Bruylant 2015) 73, 78–80. 139 See Salah Sheekh v Netherlands App no 1948/04 (ECtHR, 11 January 2007) §§ 141, 100; and Saadi v United Kingdom App no 13229/03 (ECtHR [GC], 29 January 2008) §§ 65–74, 54–57. 140 ‘UNHCR’ was used no less than 78 times by MSS v Belgium and Greece (n 59); on Syria see LM and others v Russia App nos 40081/14, 40088/14 and 40127/14 (ECtHR, 15 October 2015) §§ 110–11. 141 See Guy S Goodwin-Gill and Hélène Lambert (eds), The Limits of Transnational Law (CUP 2010). 142 See Eleanor Drywood, ‘Who’s In and Who’s Out?’ (2014) 51 CML Rev 1115; and Hélène Lambert, ‘Transnational Law and Refugee Identity’ in Susan Kneebone and others (eds), Refugee Protection and the Role of Law (Routledge 2014) 203.

Refugee Convention: Distant Lodestar 147 the earlier transnational debate. Nevertheless, the ECJ’s introverted style of reasoning constrains the potential of transnational appeal.143 A crucial test will be the position of British courts in years to come. While they are no longer bound by the CJEU’s case law as a result of Brexit, they ‘may have regard’144 to it nevertheless. In addition, domestic courts of the Member States, which are often specialised on asylum matters, will continue to play an important role as points of reference for transnational judicial dialogue.

5.6.3 Practical priority of human rights The design of the Refugee Convention reflects the state of international law after the Second World War. At the time, the international community introduced conventions with broader normative aspirations, which were not yet supported by the institutional infrastructure of later treaty bodies. Human rights instruments transcend this limitation and are, consequently, at the centre of many contemporary debates. Position papers by UNHCR often refer to human rights in parallel to the Refugee Convention, although the latter mentions human rights only once, albeit prominently, in the first recital of the preamble. Recent years have seen a veritable turn of refugee law scholarship towards human rights as the core legal battleground. Their newfound prominence stems from practical significance, conceptual prominence, and professional appeal.145 We may distinguish between two expressions of this turn towards human rights. On the one hand, academics have argued forcefully that the Refugee Convention should be interpreted progressively in light of human rights.146 Article 9(1)(a) Qualification Directive 2011/95/EU supports this approach when defining persecution as a ‘severe violation of basic human rights’ and expressly covers persecution by non-state actors and for gender- specific reasons. Chapter 13.5 will explain that unanimous adoption of this definition was a remarkable exercise of progressive legislation. Court judgments have developed the legislative standard further, for instance with regard to homosexuality and religious freedom. On the other hand, the institutional weight of human rights exerts gravitational force. Judgments of the ECtHR and the opinions of international treaty bodies give answers to present-day problems, compared to which vague formulations in the Refugee Convention resemble an oracle more than precise guidance. Furthermore, human rights law may bridge gaps in the Convention, which remains silent on status determination procedures, legal remedies, or family reunification. Finally, human rights may extend the protective reach of ‘refugee law’ to additional push factors. Indiscriminate violence in situations of armed conflict is an example of further protection, transcending the notion of ‘persecution’ under the Refugee Convention. Chapter 13.6 will explain how subsidiary protection under the Qualification Directive and complementary protection schemes under national laws relate to human rights and the Refugee Convention.

143 See Bank (n 134) 237–41. 144 European Union (Withdrawal) Act 2018, s 6(1), (2), (5) on ‘retained legislation’, which reiterates former Union law in domestic British rules. 145 See Vincent Chetail, ‘Are Refugee Rights Human Rights?’ in Ruth Rubio-Marín (ed), Human Rights and Immigration (OUP 2014) 19. 146 See Hathaway (n 131) 128–74; and also Romit Bhandari, Human Rights and the Revision of Refugee Law (Routledge 2020).

148 Human Rights and State Sovereignty

5.7 Summary European migration law was not written on a clean slate. It developed against the backdrop of international rules which continue to be an essential point of reference. Nevertheless, interaction is not straightforward, especially in the practice of the Court of Justice, and experts with a background in international law will be disappointed by its claim to autonomy. EU migration law can have a meaning of its own, distinct from international law. Inspection of the judicial practice revealed an introverted style of reasoning. Whereas the Court affords constitutional status to the Refugee Convention in the EU’s legal order, the judicial reasoning focuses on the interpretation of secondary legislation, not international practice. Positions of UNHCR are not legally binding, but judges might wish openly to reflect reasons for not following them nevertheless. International treaty bodies are rarely mentioned, in contrast to the case law of the ECtHR. The approach taken by international law towards cross-border movements changed fundamentally after the Second World War. Awareness of this transformation helps to recognise specificities of the international legal context. Traditionally, foreigners—or ‘aliens’, as they used to be called—were protected qua nationality. Minimum standards were construed as inter-state obligations, to be enforced by means of diplomatic protection. Conventions negotiated in the framework of the Council of Europe emulated this model by laying down guarantees for nationals of state parties, as do contemporary association agreements of the EU with third states. Their impact is usually neatly circumscribed by treaty rules, whose contents can differ markedly depending on the negotiations. In an environment that protected foreigners qua nationality, the reduction of statelessness was a vital objective. EU law cannot regulate this question directly, but the international legal framework is comparatively strong and functions reasonably well. Thus, de jure statelessness is not a major area of practical concern in contemporary Europe. Human rights law has turned into an essential normative compass precisely because it rises above the inter-state paradigm. Human rights instruments usually apply to ‘everyone’ within the jurisdiction of a state, not only nationals of state parties; the ‘right to have rights’ was detached from nationality, with individuals being protected qua personhood. The open-ended texture of human rights means that they serve as a conceptual and doctrinal counterweight to state sovereignty, feeding the interests of migrants into decision-making. They will continue to play this role as a result of a built-in potential for dynamic interpretation. International human rights law would not have turned into such a beacon of hope for progressive scholarship without the institutional infrastructure of courts and treaty bodies pronouncing themselves on how to interpret human rights in specific scenarios and in light of present-day conditions. The European Court of Human Rights (ECtHR) is the centre of gravity of human rights law, on the European continent at least. Its judgments were critical in extending the rights of migrants over past decades—notwithstanding a genuine effort, on the part of judges, to balance the rights of migrants with statal control imperatives. Deference was reinforced in a series of more recent rulings, in which judges in Strasbourg refrained from extending further the protective reach of the Convention. Such statism receives much attention, but it does not undo the doctrinal innovations of the earlier case law. Applying these standards, institutional constraints prevent the Court from micro-managing state practice. Effective application of the Convention depends on loyal cooperation with domestic courts, which

Summary 149 the Grand Chamber supports through general principles that may guide decentralised application. Differences of opinion with the Court of Justice over the human rights limitations to the Dublin system have given way to a pragmatic working relationship between the two influential courts in Strasbourg and Luxembourg. Judgments interpreting the Charter of Fundamental Rights show that the CJEU generally replicates the findings of the ECtHR, as required by Article 52(3) CFR. One step further, some provisions in the Charter establish a higher level of protection, for instance on administrative procedures and legal remedies. The rights of the child enshrined in Article 24 exemplify the potential for surprise outcomes. Several judgments relied on the article to correct the outcome of the legislative process to the benefit of children and their parents. The visibility of the legally binding Charter does not, however, turn the EU into a fully- fledged human rights organisation. Primary law obliges the institutions to respect human rights, while simultaneously promoting other Treaty objectives. Member States are bound by the Charter only when implementing Union law, thus raising intricate questions about the demarcation of the Charter’s scope. In contrast to the European Convention, international human rights and the practice of treaty bodies play a marginal role in the practice of the Court of Justice. That is, in part at least, the result of limited legal sway, since the opinions of treaty bodies are not legally binding. Even so, experts of international law will find it frustrating that judges in Luxembourg often ignore international practice. This decoupling may be further reinforced if international treaty bodies continue along the path of dynamic interpretation at a time when judges in Europe seem to tread carefully on migratory matters. Legal considerations and policy advice coalesce in the job description of special rapporteurs, appointed within the UN system, and other international bodies with an executive vocation. A prime example of diplomatic initiatives are the Global Compacts on Refugees and for Safe and Orderly Migration, which are meant to guide, as non-binding soft law instruments, policy developments in years to come. Success is far from guaranteed, partly as a result of compromise formulae reiterating, rather than resolving, conflicts of interests. The Refugee Convention informs asylum practices as the ‘magna carta’ for refugee protection. Article 78(1) TFEU assigns constitutional status to the Refugee Convention within the EU legal order. Nevertheless, direct invocation has limited practical effects in the absence of a (quasi-)judicial body with the authority to interpret the Refugee Convention authoritatively at the international plane. Decentralised adjudication by domestic courts necessarily results in different views, which the Court of Justice canalises into a uniform interpretation on the European continent. Aside from judgments, the actual wording of the Qualification Directive was critical for establishing a uniform understanding of the refugee concept. Human rights take centre stage in most contemporary debates about asylum law and policy, complementing and superseding the Refugee Convention as the central point of reference in many respects. Their profound impact on migration law will be discussed in the other chapters of this volume.

6

Doctrinal Foundations of the Case Law Good lawyers are sometimes said to be those who can make creative use of the law. There is, no doubt, an important element of truth in this statement, but good lawyers also need to know the law. This becomes particularly relevant on the European continent where doctrinal hermeneutics define the contents of judgments that are delivered on behalf of the collective of judges, in line with the civil law tradition. The judicial reasoning on migration validates the prevalence of interpretation in light of the wording, the general scheme, objectives, or the drafting history; comments on these matters often stretch over several dozen paragraphs. That is why this chapter will present the doctrinal foundations in light of a horizontal inspection of the Court’s output on migration law. Mastery of the doctrinal foundations is much more than a boring exercise of ‘black letter’ law. It is a precondition for practical impact of anyone aiming at influencing the outcome of court proceedings at the domestic or supranational levels. Experts in migration law occasionally ignore the broader outlook of the Court of Justice of the European Union (CJEU), which addresses supranational migration law cases against the backdrop of seven decades of judgments on other subject areas. Our horizontal analysis of the judicial output will considers the judgments on the different migration law instruments as an integral part of a body of laws that is more than the sum of its parts. We shall see the potential but also the limits of any attempt at increasing the coherence and predictability of the case law on the various pieces of legislation discussed throughout this volume, which are defined by an increasing complexity. Our analysis begins with the theoretical claim to legal coherence and autonomy which underlies the concept of ‘legal order’ (6.1). Notwithstanding the trend towards fragmentation, the Court generally supports the uniform and parallel interpretation of the sectoral legislation on migration law (6.2). EU migration law brings a distinct flavour to the constitutional essentials, such as the principle of subsidiarity or the distinction between directives and regulations (6.3). Judgments on migration illustrate the pitfalls of the classic methods of interpretation, which are essential for anyone navigating the steady flow of new rulings (6.4). Individual rights enshrined in secondary legislation are an essential doctrinal tool; they perform similar functions as fundamental rights, although their legal foundations and implications differ (6.5). This chapter will conclude with practical tips for dealing with the supranational case law (6.6).

6.1 ‘Legal Order’ as Doctrinal Self-sufficiency Most experts in EU law employ the term ‘legal order’1 as a neutral description, without being unaware of the underlying aspiration of doctrinal self-sufficiency in foundational

1

See Case 26/62 van Gend en Loos EU:C:1963:1; and Case 6/64 Costa v ENEL EU:C:1964:66.

European Migration Law. Daniel Thym, Oxford University Press. © Daniel Thym 2023. DOI: 10.1093/oso/9780192894274.003.0007

‘Legal Order’ as Doctrinal Self-sufficiency 151 cases. Supranational Union law was decoupled from both international law and domestic settings to establish a world of its own that was expected to provide answers to upcoming questions, if necessary by means of dynamic interpretation to fill any gaps that might exist. To put it differently, a ‘legal order’ is more than the sum of its parts; it is an organic mechanism in search of coherence and perfection. Individual rules and different legislative instruments feed into a consistent whole.2 EU migration law does not exist in isolation but is firmly embedded, in the practice of the CJEU at least, in the holistic aspiration of systemic coherence and conceptual autonomy. Experts with a background in common law are rarely aware of the doctrinal ambitions which the concept of ‘legal order’ encapsulates and which continue to define legal education and judicial practice across continental Europe.3 Among the original Member States, the doctrinal tradition was particularly strong in Italy and Germany, from where the notion of ‘legal order’ was borrowed.4 France contributed unwritten general principles to fill gaps in the legal material. Later-on, other influences coalesced with the continental tradition, including Nordic formalism or Anglo-Saxon common law.5 Union law is a peculiar mix that takes up diverse elements. Chapter 4.4 discussed how this conceptual diversity informs the choice of methodology for the design of research projects on migration in full awareness of the different traditions. In migration law, the ideal of systemic coherence can be difficult to put into practice as a result of the complexity of the legislative material. Nevertheless, overarching themes enlighten the analysis of seemingly unrelated pieces of legislation, for instance via the doctrinal features of individual rights or effet utile. Court judgments complement each other, thus ideally establishing a mosaic rather than a patchwork. There is, so to say, an invisible net of doctrinal concepts and general principles that holds the case law together. Judgments on the Return Directive can have repercussions for the analysis of the Asylum Procedures Directive, in the same way as settled case law on Union citizenship has implications for EU migration law. The degree of specificity and generalisation varies greatly and is not usually reflected upon openly. Yet this obscurity does not undo the theoretical and practical significance of the search for replicable patterns. For academic observers and practitioners alike, such general and overarching features have the benefit of rendering the judicial output more stable and predictable. Predictability is particularly relevant for the CJEU, which depends on domestic courts to apply Union law on a daily basis, including on subject matters on which the Court has not spoken. Unfortunately, the judicial practice does not facilitate the distinction between case-specific arguments and abstract statements. In contrast to the ECtHR, the CJEU does not distinguish between ‘general principles’ and their ‘application to the specific case’. To be sure, formulae like ‘in the specific circumstances of the present case’ indicate a fact-specific outcome, whereas replicable patterns can be identified by the use of generic language or the citation of judgments on different subject matters. Nevertheless, the impact of a judgment is

2 See Loïc Azoulai, ‘“Integration Through Law” and Us’ (2016) 14 ICON 449. 3 See Miguel Poiares Maduro, ‘Interpreting European Law’ (2007) 2/2 Eur J L Stud 1, 4–13; and Rob van Gestel and Hans-Wolfgang Micklitz, ‘Why Methods Matter in European Legal Scholarship’ (2014) 20 ELJ 292. 4 See Giulio Itzcovich, ‘Legal Order, Legal Pluralism, Fundamental Principles’ (2012) 18 ELJ 358, 360–69; and Jacco A Bomhoff, ‘Perfectionism in EU Law’ (2014) 12 Camb Yearb Eur Leg Stud 75. 5 See Frederico Mancini and David Keeling, ‘Language, Culture and Politics in the Life of the European Court of Justice’ (1995) 1 Columbia J Eur L 397.

152 Doctrinal Foundations of the Case Law not usually evident at the point of delivery.6 The Court tends to build the legal order ‘stone by stone’, instead of presenting an overarching plan directly. This incremental and experimental approach allows judges to take on board feedback and criticism from domestic courts and political actors,7 yet it also means that the degree of novelty and generalisability will became apparent only gradually.

6.2 The Promise and Limits of Coherence Anyone reading the directives and regulations that make up EU migration law intuitively understands why the search for coherence can be complex and occasionally futile. Secondary legislation often employs similar terminology, although its meaning may differ (6.2.1). Such fragmentation can undermine the uniform application of Union law if domestic authorities and courts find it difficult to determine the correct meaning. The original idea of an ‘immigration code’ seems to have been abandoned, even though the EU institutions strive to the coordinate the contents of related pieces of draft legislation (6.2.2). Judges at the Court have started exploring horizontal cross-fertilisation by recognising that similar terminology in different migration law instruments should usually be given a coherent meaning (6.2.3).

6.2.1 Legislative fragmentation Coherence is more ambitious than consistency. While ‘consistency’ designates the absence of contradictions, ‘coherence’ hints at an underlying rationality if different parts connect to each other in a sensible way. A classic example of consistent rules lacking coherence is the definition of the ‘third country national’: while most migration law instruments define the term as referring to anyone who is not a Union citizen, the Return Directive and the Schengen Borders Code Regulation exclude those enjoying free movement as family members of Union citizens or on the basis of association agreements.8 There are good reasons for this differentiation, but the discrepancy complicates the work of practitioners and academics, nonetheless. On other occasions, incoherence results from the lack of coordination between legislative instruments. A telling example is the first-entry rule in Article 13(1) Dublin III Regulation (EU) No 604/2013, according to which the Member State whose external border an asylum seeker had ‘irregularly crossed’ shall usually examine the application. In a judgment dealing with movements along the ‘Western Balkans route’ during the winter of 2015/16, the Court rejected the proposal of the Advocate General to interpret the provision in isolation; doing so would have justified not qualifying as ‘irregular crossing’ situations where Member States had tolerated irregular entry. Judges disagreed and upheld the idea of overarching 6 See Marie De Somer, Precedents and Judicial Politics in EU Immigration Law (Routledge 2018) ch 8; and generally Marc A Jacob, Precedents and Case-Based Reasoning in the European Court of Justice (CUP 2014) ch 4. 7 See Joseph HH Weiler, ‘Epilogue: Apology and Critique’ in Maurice Adams and others (eds), Judging Europe’s Judges (Hart Publishing 2013) 235, 247–48. 8 Contrast Long-Term Residents Directive 2003/109/EC art 2(a) and Blue Card Directive (EU) 2021/1883 art 2(1) to Return Directive 2008/115/EC art 3(1) and Schengen Borders Code Regulation (EU) 2016/399 art 2(5).

The Promise and Limits of Coherence 153 coherence by emphasising that the Schengen Borders Code Regulation influences the interpretation of the Dublin III Regulation, even though statutory differences may occasionally result in divergent outcomes.9 The quest for coherence extends to the domestic level. Domestic authorities and courts will habitually orientate themselves at national laws. Their structure and wording may differ from supranational legislation, especially in the traditional destination countries whose migration and asylum legislation predates Europeanisation. Member States are bound to avoid inconsistencies when implementing directives, but they are not obliged positively to promote, as we shall see, coherence in terms of adapting the structure and terminology. That can cause additional frictions. The term ‘expulsion’, for instance, may designate either termination of legal stay or return proceedings.10 Coherence of the multi-level system would be supported if domestic legislatures embraced the supranational terminology. Reliable translation in the various official languages is an important starting point for that endeavour. In addition to the terminology of supranational legislation, the EMN Glossary may support linguistic and conceptual coherence.11

6.2.2 Vision of an ‘immigration code’ EU institutions are aware of the pitfalls of legislative incoherence. People involved in the drafting are called upon, in a ‘joint practical guide’, to ensure formal consistency and substantive coherence within each instrument and with acts already in force, especially in the same field.12 The EU institutions have made an effort to live up to this ideal in recent years. Ongoing debates about asylum reform identified cross-cutting definitions which should be used coherently throughout the legislation on procedures, jurisdiction, qualification, and reception conditions.13 Along similar lines, most instruments on legal migration define the notion of ‘family member’ under reference to Article 4(1) Family Reunification Directive 2003/86/EC, although Article 2(g) Dublin III Regulation (EU) No 604/2013 and Article 2(j) Qualification Directive 2011/95/EU employ distinct terminology in response to political sensitivities and contextual differences. At the same time, terminological consistency is no more than the bottom line of systemic coherence. The civil law jurisdictions on the European continent are proud of the tradition of codification, which may include general principles guiding the interpretation of the provisions on specific subject matters. Moreover, constitutional adjudication supports orientation at higher-ranking norms, including human rights. Against this background, observers complained about the uncontrolled growth of EU migration law early on.14 EU 9 See Case C-646/16 Jafari EU:C:2017:586, para 72; contra AG Eleanor Sharpston, Opinion in ibid, EU:C:2017:443, points 115–41, 155–200. 10 See ch 16.5.1. 11 See https://home-affairs.ec.europa.eu/networks/european-migration-network-emn/emn-asylum-and- migration-glossary_en (accessed 1 March 2023). 12 See ‘Joint Practical Guide for Persons Involved in the Drafting of European Union Legislation’ (European Parliament, Council, and Commission, July 2016), No 6, whose usage of ‘substantive consistency’ corresponds to our notion of ‘coherence’. 13 See ‘Cross-cutting definitions’ (Council doc 8044/1/17 REV 1, 11 April 2017). 14 See Philippe De Bruycker, ‘Legislative Harmonization in European Immigration Policy’ in Ryszard Cholewinski and others (eds), International Migration Law (TMC Asser Press 2007) 329, 331–37; and Jan Hecker, ‘Zur Europäisierung des Ausländerrechts’ [2011] Zeitschrift für Ausländerrecht 46, 48–50.

154 Doctrinal Foundations of the Case Law legislation mirrored the Anglo-Saxon tradition of casuistic law-making, listing one article after another, rather than the European tradition of complex edifices with abstract principles. Unease with the status quo was shared by the European Council, which called for the ‘consolidation of all legislation’ on the basis of amendments ‘to simplify and/or, where necessary, extend the existing provisions and improve their implementation and coherence’.15 That plea for consolidation and simplification was the watered-down version of the ‘immigration code’ the Commission had put on the political agenda.16 The idea of an ‘immigration code’ failed to gain political support, since it was perceived by the Member States as a potential power-grab, by the Commission, to overcome the sectoral approach to economic migration.17 More than a decade after the debate about the immigration code, we may conclude that this ship has sailed. The size of legislative instruments has expanded significantly over the years. While the Family Reunification Directive 2003/ 86/EC and the original Long-Term Residents Directive 2003/109/EC comprised 7 and 10 pages, the Students and Researchers Directive (EU) 2016/801 and the Frontex Regulation (EU) 2019/1896 unfold over no fewer than 32 and 100 pages. Ongoing debate on asylum reform indicates that future legislation will buttress the trend towards seemingly incessant increases in the volume of legislation. The battle for simplification of EU migration law appears to have been lost. Having said this, the objective of consolidation remains valid. It is not intrinsically linked to an expansion of the thematic scope of Union law and does not require abandoning the complex structure of contemporary legislation. Consolidation in search of coherence could be achieved on the basis of existing rules, thus effectively projecting the tradition of codification to the supranational level. EU institutions might wish to adopt sectoral ‘codes’ on different aspects of migration law, or consolidate the existing sectoral legislation.18 Indeed, the idea behind the Schengen Borders Code Regulation and the Visa Code Regulation was exactly to promote legal coherence via thematic ‘codes’. That tradition could be revived, ideally not only by name but in the form of substantive improvements in the structure of the legislation.

6.2.3 Interpretative approximation Legislative complexity entails that there is ample room—and need—for interpretative cross-fertilisation, of which the Court appears to have become increasingly aware. Two judgments emphasised the objective of looking beyond the proverbial nose: the meaning of ‘minor’ in the Return Directive and the Asylum Procedures Directive was aligned ‘[w]‌ith a view to a consistent and uniform application of Union law on asylum and immigration’19; 15 The Stockholm Programme [2010] OJ C115/1, 30. 16 See Commission, ‘Communication: An area of freedom, security and justice serving the citizen’ COM(2009) 262 final 25 for a proposal see Steve Peers, ‘An EU Immigration Code’ (2012) 14 EJML 33. 17 See ch 14.1.4; and Sergio Carrera, ‘The Impact of the Treaty of Lisbon over EU Policies on Migration, Asylum and Borders’ in Elspeth Guild and Paul Minderhoud (eds), The First Decade of EU Migration and Asylum Law (Martinus Nijhoff 2012) 229, 239–43; and Dora Kostakopoulou, Diego Acosta Arcarazo, and Tine Munk, ‘EU Migration Law. The Opportunities and Challenges Ahead’ in Diego Acosta Arcarazo and Cian C Murphy (eds), EU Security and Justice Law (Hart Publishing 2014) 129, 132–34. 18 See European Parliament, ‘Resolution on new avenues for legal labour migration’ (P9_TA(2021)0260, 20 May 2021) Nos 32–33. 19 Case C-441/19 Staatssecretaris van Justitie en Veiligheid EU:C:2021:9, para 38.

Constitutional Essentials in Migration Law 155 the Reception Conditions Directive and the Asylum Procedures Directive were found to ‘belong to the same body of law, namely the Common European Asylum System’, and ‘constitute relevant and necessary contextual elements’ when interpreting the other instrument.20 Other examples followed that line without mentioning the objective interpretive coherence in the abstract, for instance with regard to the meaning of ‘detention’, to be analysed in Chapter 16.7. Mutual dependency, not splendid isolation, is the common thread of the case law. To recognise the objective of coherence is not the same as unconditional synchronisation. Some discrepancies cannot be overcome by means of interpretative hermeneutics—as illustrated by the example of the definition of ‘third country national’ mentioned previously. Such divergences are no specificity of EU migration law. Settled case holds that the notions of ‘worker’ and ‘social assistance’ can have distinct meanings in different single market instruments.21 However, such terminological confusion should ideally be limited to exceptional scenarios if the EU institutions succeed in achieving basic coherence across the sectoral legislation on EU migration law. On that basis, judges may support further approximation by means of coordinating the judgments on related themes, such as fee levels or ‘public policy’, which will take centre stage in our analysis of the general features of secondary legislation in Chapter 10.

6.3 Constitutional Essentials in Migration Law As a supranational legal order, Union law embodies a distinct outlook that contrasts with the international realm and domestic legal orders. While the basic constitutional concepts of direct effect and primacy are not specific to EU migration law, they inform its operation as an everyday practice (6.3.1). The abstract distinction between directives and regulations gives way to gradual variation in the legislation discussed in this book (6.3.2). Articles 77– 80 Treaty on the Functioning of the European Union (TFEU) establish competences on a wide array of themes, provided there is political will to activate them (6.3.3).

6.3.1 Direct effect and primacy as an everyday practice Direct effect and primacy are the hallmarks of supranationalism, as taught in university courses on EU law. Primacy famously requires domestic courts and authorities to ‘set aside any provision of national law which may conflict with’22 Union law, irrespective of whether it was adopted prior or subsequent to the supranational legislation. In an extreme scenario, technical provisions of secondary legislation may prevail over national constitutions. To be sure, some constitutional courts have established national caveats on primacy, which naturally receive much attention. They were raised indirectly by Poland in its challenge of the mandatory relocation of asylum applicants, which the Polish government considered 20 See Joined Cases C- 322/ 19 and C- 385/ 19 The International Protection Appeals Tribunal and others EU:C:2021:11, para 58. 21 See Case C-85/96 Martínez Sala EU:C:1998:217, paras 31–36; Case C-140/12 Brey EU:C:2013:565, paras 46– 58; and Emily Hancox, ‘Judicial Approaches to Norm Overlaps in EU Law’ (2021) 58 CML Rev 1057. 22 Case 106/77 Simmenthal EU:C:1978:49, para 21.

156 Doctrinal Foundations of the Case Law to be incompatible with the Identity of a ‘virtually ethnically homogeneous’ nation, only to be rejected by the Court as being ‘clearly contrary to EU law’, including the Charter.23 National identity equally surfaced in a judgment of the Hungarian constitutional court, albeit without gaining practical relevance.24 A tangible example of the everyday significance of primacy are legal remedies in Article 46(3) Asylum Procedures Directive 2013/32/EU. Domestic courts must disapply any legislation, for instance on mandatory time limits for court proceedings, if they hinder the effectiveness of the judicial oversight function.25 Disapplication is automatic and does not require the Court to say so; domestic courts and authorities do not have to wait for the domestic legislature to change national laws. In the same way, the Court forcefully rejects international law-style reciprocity: a violation of Union law by one country does not justify non-compliance by others.26 Thus, Belgium cannot disapply the Dublin III Regulation (EU) No 604/2013 to people coming from Italy with the argument that Italy does not cooperate in take back procedures. Since disputes about migration law routinely involve individuals challenging state action, the conceptual difference between directives (requiring transposition) and regulations (being directly applicable) is often practically irrelevant. Failure to adopt implementing legislation does not absolve domestic authorities from applying those provisions of a directive that are directly effective. For instance, refugees may invoke domestic treatment in the domain of social assistance under Article 29(1) Qualification Directive 2011/95/EU against regional Austrian legislation which established lower standards.27 Settled case law holds that direct effect presupposes a provision to be precise and unconditional. If these criteria are not meant, domestic courts must interpret national law in conformity ‘so far as possible’.28

6.3.2 No categorical distinction between directives and regulations The basic idea behind directives is to provide Member States with flexibility to adapt the prescriptions of Union law to the domestic legal context. To do so is often an end in itself to give national parliaments some leeway, but directives also allow civil law jurisdictions to integrate supranational legislation into pre-existing codifications at the national level, such as the French Code Napoléon or the German Aufenthaltsgesetz (Residence Act). Settled case law reaffirms that parliaments need not ‘copy and paste’ the wording of a directive into domestic law, provided the national rulebook ensures respect for Union law and renders individual rights visible.29 By contrast, the entire contents of regulations is meant to be directly effective. 23 Joined Cases C-643/15 and C-647/15 Slovakia and Hungary v Council EU:C:2017:631, paras 302–05 refused to apply Article 4(2) TEU. 24 See Hungarian Constitutional Court (Alkotmánybíróság), Case 22/16 (decision of 30 November 2016); and Simone Penasa and Graziella Romeo, ‘Sovereignty-based Arguments and the European Asylum System’ (2020) 22 EJML 11, 13–16. 25 See Case C-406/18 Bevándorlási és Menekültügyi Hivatal EU:C:2020:216, paras 32–34. 26 See Joined Cases 90/63 and 91/63 Commission v Luxembourg and Belgium EU:C:1964:80. 27 See Case C-713/17 Ayubi EU:C:2018:929, paras 36–40. 28 Joined Cases C-397/01 to C-403/01 Pfeiffer EU:C:2004:584, para 113. 29 See Case C-194/01 Commission v Austria EU:C:2004:248, paras 37–39.

Constitutional Essentials in Migration Law 157 In practice, however, the theoretical distinction between directives (requiring transposition) and regulations (being directly applicable) has lost relevance—notwithstanding the claim by the Commission that it would bring about ‘comprehensive harmonisation’30 to replace the Asylum Procedures Directive with a Regulation. To say so may be smart from a public relations perspective, to signal that the Commission does something to overcome discrepancies on the ground, but the practical effects of the switch from a directive to a regulation will be limited. The contents of a provision is more important than the choice of instrument. By way of example, the Proposal for an Asylum Procedures Regulation foresees an obligation to set time-limits to lodge appeals ‘between a minimum of two weeks and a maximum of two months’.31 This is stricter than the vague prescription of ‘reasonable time limits’32 but stays far behind the claim about ‘comprehensive harmonisation’, also considering that many aspects of the court procedure would not be harmonised at all under the Asylum Procedures Regulation. Conversely, directives will not give Member States leeway in all cases. Exclusion from refugee status of Palestinians receiving support of the United Nations Relief and Works Agency for Palestine Refugees (UNRWA), for instance, is fully harmonised, despite being laid down in a directive.33 Regulations, on the contrary, may require implementation, for instance regarding the meaning of ‘risk of absconding’ in Article 2(n) Dublin III Regulation (EU) No 604/2013. The abstract distinction between directives and regulations gives way to gradual variations. Chapter 10.6 on more favourable national legislation will explain how to identify mandatory provisions in the migration law instruments.

6.3.3 Subsidiarity as political preference Articles 77–80 TFEU lay down a broad set of competences for law-making, as explained in Chapter 1.2.4. There are few thematic gaps in the supranational powers, for instance with regard to nationality. Whether to make use of these competences is a matter of political choice. EU institutions decide on the suitability of common action in the ordinary legislative procedure; justice and home affairs establish a ‘shared’ competence.34 In practice, the EU institutions have legislated on many aspects, without, however, occupying all issues with which they might possibly deal. For example, the regularisation of illegal stay, discussed in Chapter 16.8 on return, remains mostly untouched. From a constitutional perspective, the choice for inaction is perfectly valid, irrespective of whether one finds it politically convincing or not. Shared competences require compliance with the principles of subsidiarity and proportionality in accordance with Article 5(3) and (4) TEU. Judges allow political actors much discretion when assessing these principles. To counterbalance this leeway, national parliaments may speak out against new proposals in the early-warning mechanism.35 The 30 Commission, ‘Communication: Towards a reform of the Common European Asylum System and enhancing legal avenues to Europe’ COM(2016) 197 final 10. 31 Amended Proposal for an Asylum Procedures Regulation, COM(2020) 611 final, art 53(7)(b). 32 Asylum Procedures Directive 2013/32/EU, art 46(4). 33 See ch 13.5.6.1; and Case C-585/16 Alheto EU:C:2018:584, paras 98–100. 34 See TFEU, arts 2(2), 4(2)(j). 35 See Protocol [No 2] on the application of the principles of subsidiarity and proportionality [2004] OJ C310/ 207.

158 Doctrinal Foundations of the Case Law procedure serves as a forum for debate with domestic actors who often have a different outlook than politicians in Brussels (or academics specialising in EU migration law). Commission proposals for the mandatory relocation of asylum seekers and a Dublin IV Regulation were among the initiatives criticised most.36 In doing so, national parliaments often expressed political opposition rather than legal concerns.37 Indeed, the Commission repealed both proposals not for considerations of subsidiarity but in response to political stalemate. Note that subsidiarity can only be relied upon to criticise supranational initiatives; it does not oblige EU institutions to become active when joint action might add value. Generally speaking, the argument for common action is particularly strong in the fields of visas, border controls, and asylum, since one country alone cannot address these matters effectively any longer. Moreover, the objective, enshrined in the EU Treaties, of a ‘common’ asylum system supports generous application of the principles of subsidiarity and proportionality.38 By contrast, the argument for Europeanisation is weaker with regard to legal migration and integration.

6.4 Pitfalls of the Interpretative Exercise Montesquieu famously said that judges ‘are only the lips pronouncing the contents of the law’.39 However, following the preference of the legislature is easier said than done, and judges in Luxembourg benefit from a particularly wide leeway as a result of the open- endedness of secondary legislation. Discrepancies between language versions complicate the identification of straightforward outcomes (6.4.1), which can occasionally be unearthed by recourse to the drafting history (6.4.2). By contrast, the case law on migration displays an almost bewildering elasticity of teleological interpretation in light of objectives (6.4.3). Useful doctrinal tools are the autonomy of Union law, which helps to overcome entrenched national practices (6.4.4), and the principle of effet utile, which allows judges to address domestic rules not covered by secondary legislation (6.4.5). Our comments demonstrate why it remains a formidable challenge, for Courts and academics alike, to present an argument in the tradition of doctrinal hermeneutics.

6.4.1 Multilingualism of EU migration law All EU migration law instruments are published in the twenty-four working languages, which have the same authenticity. This pronounced multilingualism can result in frictions and misunderstandings; it also explains the use of clumsy language if consistent translation 36 See Tomasz Jaroszyński, ‘National Parliaments’ Scrutiny of the Principle of Subsidiarity. Reasoned Opinions 2014–2019’ (2020) 16 EuConst 91, 101. 37 See Angela Tacea, ‘From Legal to Political Reasoning. National Parliaments’ Use of Reasoned Opinions in the Area of Freedom, Security and Justice’ (2021) 59 JCMS 1573. 38 See ch 7.1.1; Steve Peers, EU Justice and Home Affairs Law, vol 1 (4th edn, OUP 2016) 328; and Henry Labayle, ‘L’espace de liberté, sécurité et justice dans la Constitution pour l’Europe’ (2005) 41 Revue trimestrielle de droit européen 437, 463. 39 Own translation of ‘ne sont que la bouche qui prononce les paroles de la loi’, from the oeuvre De l’esprit des lois (1748).

Pitfalls of the Interpretative Exercise 159 takes priority over linguistic elegance. While the quality of the translation is usually very good, inconsistencies can occur. By way of example, the Spanish version of the former Schengen Borders Code Regulation suggested that authorities ‘shall’ expel third country nationals under certain conditions, while all other language versions indicated that the authorities ‘may’ do so.40 Other differences are less drastic but can be relevant nonetheless, especially when domestic authorities orientate themselves at ‘their’ language without recognising that other language versions say otherwise. EU migration law has to be interpreted uniformly in such scenarios. Multilingualism may result in confusion, but it does not bring about a babel of divergent meanings. Generally speaking, the Court will follow ‘the great majority of the language versions’,41 if the outlier appears to be a mishap, like in the Spanish example. In some cases, however, a comparison will expose two camps supporting different conclusions. For example, several language versions, including English and French, employ the neutral term ‘resources’ when describing the economic self-sufficiency requirement in Article 5(1)(a) Long-Term Residents Directive 2003/109/EC, while the Dutch and German translation, amongst others, use the term ‘income’, thus indicating that the migrant has to earn the money instead of receiving support from others. Judges resolved this conundrum under recourse to other interpretative standards, including objectives and a comparison with other instruments.42 The bearing of sufficient resources will be examined in Chapter 10.2 on general features of secondary legislation. Of course, there are informal linguistic hierarchies. The English and French version will often have a greater weight in practice than the Finnish or the Bulgarian version, also considering that the intra-and interinstitutional debate often unfolds against the background of the English and French text (remember that the Court’s internal working language is French). Such informal hierarchies do not, however, translate into linguistic hegemony.43 Settled case law holds that ‘where there is divergence between the various language versions of an EU legislative text, the provision in question must be interpreted by reference to the general scheme and the purpose’.44 The same applies to secondary legislation that is based on international conventions of which only some language versions are authentic. The Court did not take up the proposal of Advocate General Sharpston formally to give a greater weight to the English and French version of those provisions of the Qualification Directive that replicate the Refugee Convention.45

6.4.2 Revival of the drafting history In the digital age, information on the legislative process is easily accessible through the EUR-Lex portal. References to preparatory documents can be found in the ‘procedure’

40 See Joined Cases C-261/08 and C-348/08 Zurita García and Choque Cabrera EU:C:2009:648, paras 52–57; the discrepancy was ‘corrected’ on the occasion of a recast. 41 See Case C-231/21 Bundesamt für Fremdenwesen und Asyl EU:C:2022:237, para 48. 42 See Case C-302/18 X EU:C:2019:830, paras 27–43. 43 See TFEU, art 342; and Regulation No 1 determining the languages to be used by the European Economic Community [1958] OJ Spec Ed Vol I/59. 44 Case C-18/19 Stadt Frankfurt am Main EU:C:2020:511, para 33. 45 cf AG Eleanor Sharpston, Case C-364/11 El Karem El Kott and others EU:C:2012:569, points 30–32.

160 Doctrinal Foundations of the Case Law section of the entry on the final instrument in the EUR-lex portal,46 or in academic literature dealing with the drafting history of specific provisions.47 While the Court had attributed limited relevance to the drafting history initially, historic interpretation in light of the ‘origin’48 has gained more importance. In contrast to Article 32 Vienna Convention on the Law of Treaties, the worth of the travaux préparatoires is not supplementary in the EU context. Judgments on EU migration law have mentioned the drafting history regularly, especially if the argument was brought up by one of the parties.49 For instance, the Court found the ‘public policy’ clause in Article 6 Family Reunification Directive 2003/86/EC to require a different interpretation than for the free movement of Union citizens. The preparatory work confirmed that the discrepancy in the wording was a deliberate choice, since the Council had rejected a more generous Commission proposal to the contrary.50 Academic observers and legal practitioners may find recourse to the historic method particularly useful when addressing questions of interpretation that cannot be easily resolved on the basis of the wording and general scheme. Unfortunately, that is often the case as a result of the indeterminacy of the legislative process, which tends to follow the tradition of diplomatic negotiations resulting in open compromise formulae.51 Consulting the drafting history can be particularly useful in such scenarios.

6.4.3 Indeterminacy of teleological interpretation In response to ambiguous drafting, the Court often resolves open questions in light of objectives. This technique was the hallmark of the dynamic early rulings.52 Dynamic interpretation in light of objectives was supported by the binary structure of the policy areas involved: EU Treaties established straightforward objectives, such as factor mobility in the single market. By contrast, Chapter 1.3.1 illustrated that the area of freedom, security, and justice establishes diverse and potentially contradictory objectives for law-making. This indeterminacy of the Treaty regime has a knock-on effect on the interpretation of secondary legislation. Some of the early judgments on EU migration law replicated the tradition of dynamic interpretation in light of seemingly straightforward objectives. The Family Reunification Directive 2003/86/EC, for instance, was deemed to promote family reunification,53 even 46 See https://eur-lex.europa.eu/advanced-search-form.html (accessed 1 March 2023); alternatively, consult the subsection on ‘procedure’ of the COM proposal; see https://eur-lex.europa.eu/collection/eu-law/pre-acts.html (accessed 1 March 2023). 47 See the thorough description of the debate on individual articles in Daniel Thym and Kay Hailbronner (eds), EU Immigration and Asylum Law. Article-by-Article Commentary (3rd edn, CH Beck/Hart Publishing/ Nomos 2022). 48 Case C-647/16 Hassan EU:C:2018:368, para 40. 49 See, amongst others, Case C-285/12 Diakité EU:C:2014:39, paras 20–21, 29; Case C-91/20 Bundesrepublik Deutschland EU:C:2021:898, paras 48– 52; Hassan (n 48) paras 44– 46; and Case C- 670/ 16 Mengesteab EU:C:2017:587, para 90. 50 See ch 10.3.1; and Joined Cases C-381/18 and C-382/18 GS and VG EU:C:2019:1072, para 59. 51 See Eleanor Sharpston, ‘Transparency and Clear Legal Language in the European Union’ (2009/10) 12 Camb Yearb Eur Leg Stud 409, 411–12. 52 See generally Gunnar Beck, The Legal Reasoning of the Court of Justice of the EU (Hart Publishing 2012) 312–13. 53 See Case C-540/03 Parliament v Council EU:C:2006:429, para 69; and Case C- 578/ 08 Chakroun EU:C:2010:117, para 43.

Pitfalls of the Interpretative Exercise 161 though Article 1 states in neutral fashion that it ‘determine[s]‌the conditions for the exercise of the right to family reunification’,54 thus highlighting ‘conditions’ as much as ‘family reunification’. Judges recognised this teleological flexibility in later judgments. The optional minimum age of twenty-one years for spouses was found to serve the prevention of forced marriages,55 while income requirements were considered to minimise burdens on social assistance systems.56 These alternatives rationales behind specific provisions openly compete with the general purpose of promoting family unity.57 One judgment recognised, under recourse to Article 1, the absence of a straightforward telos,58 whereas later rulings repeated the generic priority of the aim of family unity.59 The situation is even more perplexing for the Dublin case law, which displays puzzling elasticity in how the Court handles the teleological argument. In judgments emphasising state prerogatives, judges subscribed to the prevention of ‘secondary movements’ and ‘forum shopping’ as the objective;60 by contrast, swift processing and effective access to asylum procedures took centre stage in more lenient rulings.61 Depending on the outcome, judges would accentuate either of the two legislative objectives without reflecting openly as to why they do so. Such lawyeristic approach to interpretation, with judges activating the formula that fits the outcome, contradicts the ambition of rational reasoning and legal certainty. A step in the right direction would be to recognise, as a recent judgment did, that one should strive for a balance ‘between the different objectives . . . and the competing interests involved’.62 Interpretation in light of objectives need not advance the legal status of migrants, as illustrated by the objective of preventing ‘forum shopping’ in some judgments on the Dublin system. Along similar lines, the Return Directive had originally been found to aim at ‘an effective policy of removal and repatriation’,63 although doing so had the ‘migrant-friendly’ side-effect of prohibiting States from imposing prison sentences for illegal stay that might jeopardise the objective of removal.64 Later judgments mentioned ‘full respect’ for human rights as an additional objective.65 The Schengen Borders Code Regulation was considered to pursue the purpose of ‘combat[ting] illegal immigration’ and security threats,66 whereas 54 On the contrast see Philippe De Bruycker, ‘Chronique de jurisprudence consacrée à l’espace de liberté, de sécurité et de justice’ (2010) 46 Cahiers de droit européen 137, 146; and Daniel Thym, ‘A Bird’s Eye View on ECJ Judgments on Immigration, Asylum and Border Control Cases’ (2019) 21 EJML 166, 186–87. 55 See Case C-338/13 Noorzia EU:C:2014:2092, para 16. 56 See Case C-558/14 Khachab EU:C:2016:285, para 39, after having mentioned the ‘general’ objective in para 26. 57 For similar discrepancies in the case law on the Free Movement Directive 2004/38/EC see Daniel Thym, ‘The Elusive Limits of Solidarity’ (2015) 52 CML Rev 17, 25. 58 See Case C-706/18 Belgische Staat EU:C:2019:993, para 27. 59 See Joined Cases C-133/19, C-136/19 and C-137/19 État belge EU:C:2020:577, para 25. 60 See Case C-616/19 Minister for Justice and Equality EU:C:2020:1010, paras 51–52; Joined Cases C-582/17 and 583/17 H and R EU:C:2019:280, paras 77–79; Joined Cases C-411/10 and C-493/10 NS and others EU:C:2011:865, para 79; and Case C-695/15 PPU Mirza EU:C:2016:188, para 52. 61 See Hassan (n 48) para 56; Case C-163/17 Jawo EU:C:2019:218, paras 58–59; Case C-63/15 Ghezelbash EU:C:2016:409, para 52; Mengesteab (n 49) paras 54, 73, 96; Joined Cases C-245/21 and C-248/21 Bundesrepublik Deutschland EU:C:2022:709, para 56; and Joined Cases C-47/17 and C-48/17 X and X EU:C:2018:900, para 69. 62 Joint Cases C-323/21 and others, para 68. 63 Case C-61/11 PPU El Dridi EU:C:2011:268, para 59; and Case C-290/14 Celaj EU:C:2015:640, paras 21–23. 64 See ch 16.3.3. 65 See Case C-383/13 PPU G and R EU:C:2013:533, para 42; the formula has been taken up ever since, starting with Case C-146/14 Mahdi EU:C:2014:1320, para 38. 66 See Case C-341/18 Staatssecretaris van Justitie en Veiligheid EU:C:2020:76, para 63; and Case C-575/12 Air Baltic Corporation EU:C:2014:2155, para 50.

162 Doctrinal Foundations of the Case Law judgments on the Visa Code Regulation and the former Students Directive emphasised different purposes.67 Such neutral formulae are appropriate to start with. Neither the official recitals nor the drafting history usually sustain the identification of one predominant objective. It is in the nature of the interinstitutional negotiations that the final outcome habitually combines varied and occasionally contradictory political preferences and objectives. Primary law confirms this diverse outlook—in contrast to the freedom-enhancing rationale of the single market. In the field of EU migration law, objectives cannot usually serve as magic words overcoming the built-in teleological indeterminacy of most legislation. To recognise the plurality of intentions supports rational decision-making with judges, practitioners, and academics openly pondering the pros and cons of different solutions, instead of hiding behind seemingly clear-cut objectives.

6.4.4 Autonomous concepts and their limits EU law often regulates state behaviour against the backdrop of entrenched national practices. Such traditions can have a gravitational pull that the Court overcomes by means of the well-established assumption that ‘a provision of EU law which makes no express reference to the law of the Member States for the purpose of determining its meaning and scope must normally be given an autonomous and uniform interpretation throughout the European Union’.68 What might appear self-evident is a decisive tool for the effective and uniform application of EU migration law. While autonomy primarily concerns decoupling from domestic law, it has an external dimension as well. Even if EU migration law employs similar terminology as international agreements, the Court may interpret supranational legislation independently. A pertinent example is the notion of ‘serious harm’, traced in Chapter 13.6 on subsidiary protection, which had been developed against the backdrop of ECtHR case law, from which it was distinguished by the CJEU later. Much more common than decoupling from international law is the internal autonomy. References to ‘public policy’ or ‘unaccompanied minors’ are not open-ended formulae allowing Member States to continue domestic rules, even if they employ the same terminology. Autonomy breaks with national traditions and directs the interpretative exercise towards the supranational level. It covers abstract concepts, such as ‘public policy’, in the same vein as legislation-specific provisions. For example, Chapter 14.3.5 on asylum will explain that the uniform reading of the term ‘unaccompanied minor’ prepared the ground for several judgments holding that family reunification depends on the age at the time of the asylum application, not that of the subsequent administrative decision. Once the Court has established a uniform meaning, this finding will ideally resonate in the practice of domestic courts across Europe. In cases of doubt, they send follow-up references to Luxembourg, thereby allowing the Court to develop the case law. Not all provisions lay down autonomous concepts. A reliable indicator signalling the absence of uniform meaning are references to national laws. For example, Member States are 67 See Case C-544/15 Fahimian EU:C:2017:255, para 34; Case C-84/12 Koushkaki EU:C:2013:862, paras 52–54; and Case C-491/13 Ben Alaya EU:C:2014:2187, paras 28–29. 68 État belge (n 59) para 30.

Individual Rights of Migrants 163 required to lay down objective criteria for the ‘risk of absconding’ for return purposes at the national level, as discussed in Chapter 16.7.2 on detention. However, such leeway should not be misunderstood as unfettered freedom; the principle of effet utile and, possibly, fundamental rights can be activated to counter national excesses. Conversely, autonomy does not imply that Union law necessarily provides a full answer. Judges may conclude that that a provision establishes a mandatory framework of uniform meaning, while leaving domestic authorities with flexibility to adjust certain parameters to the domestic context. A telling example is the case law on the refusal of entry visas for students and tourists. The Court concluded that States have ‘wide discretion’ when determining security threats or the likelihood of overstaying, although both concepts must be interpreted uniformly throughout the Union to start with.69

6.4.5 Effet utile as a useful doctrinal tool The principle of effet utile (French for effective application) means that Union law is to be given an interpretation supporting its effective application. The phrasing was borrowed from international law and has defined many dynamic Court judgments. In migration law, effet utile is regularly employed as an argument amongst other, in support of other means of interpretation. This doctrinal tool will work to the benefit of individuals whenever the provision in question coincides with their interests, but the effet utile is not intrinsically linked to the concept of individual rights. For instance, the argument was applied to dynamically find additional exceptions from the rule that returnees shall be detained in specialised detention facilities.70 As an integral part of the interpretative exercise, the effet utile interacts with the other arguments. On step further, the Court employs the principle effet utile as a free-standing obligation, on the part of the Member States, not to undermine the objectives of secondary legislation. Such independent use of the effet utile can be used to scrutinise domestic rules which are not covered by specific provisions of a directive or regulation. Otherwise put, the effet utile allows judges to address questions they would normally have to stay silent on if they limited their analysis to the provisions which are explicitly set out in secondary legislation. Instructive examples are fees for domestic residence permits in the absence of EU harmonisation, mentioned in Chapter 10.1.3, and a series of judgments limiting the criminalisation of illegal stay, discussed in Chapter 16.3.3 on return. These examples illustrate the added value of effet utile in the doctrinal ‘armoury’, allowing the supranational judiciary to extend legal oversight.

6.5 Individual Rights of Migrants Human rights are essential for the legal analysis, although an analytical focus on human rights will often be supplanted by higher standards enshrined in secondary legislation. In striking contrast to the visibility of human rights in the academic and political discourse,

69 70

See ch 10.3.2; Fahimian (n 67) paras 61–63; and Koushkaki (n 67) paras 60–62. See ch 16.8.4; and Stadt Frankfurt am Main (n 44) para 34.

164 Doctrinal Foundations of the Case Law many Court judgments do not mention the Charter, or refer to it as one argument amongst others. Crucially, such silence need not signal preference for state interests. Judges often employ rely on individual rights enshrined in secondary legislation instead (6.5.1). A comparison with human rights illustrates to what extent individual rights may advance the position of migrants (6.5.2). Their added value explains why many rulings remain vague as to the precise role of human rights (6.5.3). This ambiguity must be abandoned, however, when judges determine, in light of Article 47 of the Charter of Fundamental Rights (CFR), whether EU legislation may restrict legal remedies (6.5.4).

6.5.1 Individual rights enshrined in legislation Individual rights are firmly embedded in the Court’s practice and were recognised as a doctrinal tool that may advance the legal status of migrants early on.71 It was originally developed for the Treaty-based fundamental freedoms but applies to secondary legislation similarly. This book uses the description ‘statutory’ (or ‘legislative’) to distinguish rights enshrined in directives or regulations from ‘constitutional’ guarantees at Treaty level, such as human rights.72 Such individual rights play an important part in the case law.73 They support the effective application of the supranational rulebook and may form the basis for dynamic interpretation. By way of example, judges had interpreted most provisions of the former Dublin II Regulation (EC) No 343/2003 not to serve the interests of asylum applicants, thus rejecting a statutory guarantee to contest take back decisions, unless their complaint was based on human rights. Judges emphasised the prerogative of the legislature to decide on the scope of legal remedies, and they interpreted the Dublin II Regulation to have answered that question to the negative.74 However, the Court changed course when concluding, on the basis of the revised rules in the Dublin III Regulation (EU) No 604/2013, that asylum seekers may invoke the time limits to challenge take back decisions, irrespective of whether the transfer would violate human rights.75 This judicial about-turn is a telling example that an ‘administrative mindset’ focusing on statutory interpretation, instead of human rights, need not result in restrictive outcomes.

6.5.2 Added valued in comparison to human rights From the perspective of domestic authorities, individual rights and human rights have comparable practical effects. They can be relied upon to challenge domestic legislation. 71 See Jürgen Bast, Aufenthaltsrecht und Migrationssteuerung (Mohr Siebeck 2011) 101–11; and Pieter Boeles, ‘What Rights Have Migrating Third Country Nationals?’ in Jaap de Zwaan and Flora Goudappel (eds), Freedom, Security and Justice in the European Union (TMC Asser Press 2006) 151, 161–62. 72 This usage of the term ‘statute/statutory’ refers to the EU institutions as the author and is not meant to transport a specific meaning the term might have in some countries, notably the United Kingdom and Ireland. 73 See Saša Beljin, ‘Rights in EU Law’ in Sacha Prechal and Bert van Roermund (eds), The Coherence of EU Law (OUP 2008) 91; and Thomas Eilmansberger, ‘The Relationship between Rights and Remedies in EC Law’ (2004) 41 CML Rev 1199. 74 See Case C-394/12 Abdullahi EU:C:2013:813, para 60; and Case C-4/11 Puid EU:C:2013:740, paras 25–31. 75 See Ghezelbash (n 61) para 35; Case C-490/16 AS EU:C:2017:585, paras 24–25; Mengesteab (n 49) paras 41– 62; and also Maarten den Heijer, ‘Remedies in the Dublin Regulation’ (2017) 54 CML Rev 859, 862–69.

Individual Rights of Migrants 165 This transformative potential is a legitimate reason why they are occasionally discussed in parallel.76 When we focus on the supranational level, however, conceptual differences between human rights and statutory guarantees stand out. Individual rights reach further than human rights, but their contents remains intimately linked to political choices. Individual rights cannot be used, unlike human rights, to reverse the outcome of the legislative process. The added value of individual rights is explained best by one of the first judgments on the area of freedom, security, and justice. In response to an action for annulment against the Family Reunification Directive, judges held, in line with human rights law, that respect for family life ‘cannot be interpreted as denying States a certain margin of appreciation when they examine applications for family reunification’.77 Nevertheless, Directive 2003/86/EC was interpreted to ‘impose precise positive obligations with corresponding clearly defined individual rights’, which are ‘[g]‌oing beyond’ human rights.78 Otherwise put, the Family Reunification Directive lays down guarantees to receive a residence permit where human rights do not require such an outcome. Chapter 10.1.2 will mention various judgments which found diverse EU migration law instruments to have established individual rights to be authorised entry or residence. Most of these legislative guarantees reach substantially further than human rights, subject to one important caveat: individual rights are conditional upon compliance with the criteria laid down in secondary legislation. This caveat played a minor role initially; early judgments on migration law in the early 2010s emphasised classic doctrinal features to advance the legal status of third country nationals.79 Autonomous and uniform interpretation, predominance of objectives, proportionality, and the ‘strict’ (or ‘narrow’) interpretation of derogations featured prominently and left academic observers with the impression that judges would systematically advance the legal position of migrants over state interests.80 All these doctrinal features remain intact. Nevertheless, Chapter 3.2.3 on the judicial output illustrated that a holistic inspection of the case law mitigates the seemingly clear- cut trajectory in favour of the individual. In the same way as the rulings on the Dublin system enhanced the legal status of asylum seekers by means of statutory interpretation, other judgments accentuated state interests. Chapter 15.4 on integration will explain that the Court found pre-departure language requirements to be compatible with the Family Reunification Directive. Judges insisted on a hardship clause, but they did not reverse a policy choice in favour of integration measures which the EU institutions had endorsed more or less explicitly.

76 See Cathryn Costello, The Human Rights of Migrants and Refugees in European Law (OUP 2016) who, despite the reference to ‘human rights’ in the title, discusses both constitutional guarantees and secondary legislation. 77 Parliament v Council (n 53) para 59. 78 ibid para 60. 79 See Chakroun (n 53) paras 41, 43–45; and Case C-571/10 Kamberaj EU:C:2012:233, paras 77–80, 86, 90. 80 See Diego Acosta Arcarazo and Andrew Geddes, ‘The Development, Application and Implications of an EU Rule of Law in the Area of Migration Policy’ (2013) 51 JCMS 179; Kees Groenendijk, ‘Recent Developments in EU Law on Migration’ (2014) 16 EJML 313, 332–34; and Reinhard Marx, ‘Sprachnachweis und Ehegattennachzug’ [2011] Zeitschrift für Ausländerrecht 15.

166 Doctrinal Foundations of the Case Law

6.5.3 Ambiguous Court practice on the Charter Human rights in the Charter have a higher rank than secondary legislation. They can be relied upon to challenge the validity of legislation, although interpretation in conformity with human rights will usually take precedence.81 Primacy of human rights is independent of whether the recitals say explicitly that an instrument respects the Charter, as contemporary legislation regularly does. Notwithstanding the theoretical potency of fundamental right, the judicial reasoning will not always distinguish neatly whether human rights command a specific outcome or whether they were mentioned as one argument amongst others.

6.5.3.1 Interpretation in conformity with human rights Few judgments state explicitly that the Charter necessitates an outcome which would have been difficult—or impossible—to deduct from secondary legislation without recourse to human rights. A famous example where this was done proves the NS judgment, mentioned in Chapter 13.3.6 on asylum, which required Member States to refrain from the transfer of asylum applicants under the Dublin system whenever there was a real risk of inhumane or degrading treatment contrary to Article 4 CFR. Other examples include the inadequacy of internal administrative appeals in Article 13(1) Return Directive and the obligation not to issue a return decision to unaccompanied minors without a reasonable prospect of removal.82 On other occasions, EU migration law was open enough to accommodate human rights concerns. Nevertheless, judges in Luxembourg instructed domestic courts to respect fundamental rights when interpreting national laws. Discretion, on the part of the States, must not be used to produce outcomes that are incompatible with the Charter. This scenario arose with regard to optional clauses in the Family Reunification Directive and for restrictive court procedures that might possibly contravene the fundamental right to an effective remedy in Article 47 CFR.83 Whenever the Court concludes that the Charter requires a specific outcome, the legislature must respect that position when drafting successor legislation. Amendments violating human rights will be annulled. By contrast, the EU institutions are free to adopt rules overturning earlier judgments whose outcome was based on statutory interpretation. If the legislature supports a different outcome, the Court can be expected to respect that choice, unless human rights require otherwise. The different outlook of the common law, where the legislature operates under the assumption that statutes will be interpreted against the backdrop of the pre-existing judicial precedent,84 cannot be applied in the EU context. 6.5.3.2 Silence or vagueness on the Charter Anyone reading Court rulings on migration will notice that judges often do not discuss human rights at length. While some judgments remain completely silent, others mention the Charter en passant as one argument amongst many, without indicating the extent to which human rights informed the outcome. Human rights seem to serve symbolic or 81 See Joined Cases C-391/16, C-77/17 and C-78/17 M and others EU:C:2019:403, para 77. 82 See chs 3.1.3 and 16.5.5. 83 See ch 7.2.3; and, for Article 47 CFR, Case C-233/19 CPAS de Liège EU:C:2020:757, paras 45, 54–57; Case C- 556/17 Torubarov EU:C:2019:626, paras 54–56; and Case C-662/17 E G EU:C:2018:847, paras 46–48, 69. 84 See https://en.wikipedia.org/wiki/Statute (accessed 1 March 2023).

Individual Rights of Migrants 167 decorative functions.85 However, such instances of judicial silence or ambiguity need not signal disrespect for human rights. Chapter 3.2 explained that the Court serves as a constitutional court and as an administrative tribunal in parallel; jurisdiction covers human rights and legislative interpretation. As a result, the Court need not analyse each case from the human rights viewpoint, as the ECtHR and domestic constitutional courts are bound to do for the simple reason that their jurisdiction hinges on human rights. The CJEU concentrates on human rights when correcting the outcome of the legislative process. By contrast, statutory interpretation will prevail when the minimum level of human rights protection is not at stake. An instructive example is family reunification, in relation to which judges famously found that Directive 2003/86/EC imposes ‘clearly defined individual rights . . . [g]‌oing beyond’ human rights.86 If that is the case, it does not come as a surprise that follow-up rulings focus on the effet utile or the strict interpretation of derogations, which are closely associated with the concept of individual rights. Such interpretation assumes, implicitly at least, that respect for family life under Article 7 CFR ‘cannot be interpreted as depriving the Member States of the margin of appreciation available to them’.87 Judges remain silent on the Charter, or mention it in passing, for the simple reason that legislative guarantees offer a higher level of protection. One factor explaining recourse to fundamental rights is the order of reference of domestic courts. If a preliminary reference invokes the Charter, judges are more likely to discuss human rights, although nothing prevents the Court from raising human rights ex officio.88 An extreme case was the Mahdi judgment, which mentioned the Charter when reproducing the order for reference and when formulating the answer, after having remained silent on the Charter when developing that answer.89 More common are abstract references to human rights as one argument amongst others, without indicating their relative weight. While some judgments should probably be read to indicate a mandatory outcome,90 other rulings remained vague about the degree of constitutional prescription.91 Instructive are judgments on reception conditions for asylum seekers, discussed in Chapter 13.8.3, which fluctuate between abstract invocations of the Charter as one argument amongst others and the potential of constitutional duty. Such vagueness becomes relevant when the EU institutions consider a legislative amendment or whenever practitioners or academics wonder whether the judicial argument can be projected upon other instruments. An instructive example is a judgment on access to the labour market no later than nine months after an asylum application was lodged. Ireland had exempted Dublin cases from that guarantee, and the ECJ found that solution to be incompatible with the Reception Conditions Directive 2013/33/EU. While the reasoning concentrated on profane matters of statutory interpretation, it also mentioned that Recital 11 of the Directive and earlier judgments had conceived of the labour market as contributing to human dignity.92 Does this imply that the EU institutions are prevented from setting a 85 See Diego Acosta Arcarazo, ‘Civic Citizenship Reintroduced? The Long-Term Residence Directive as a Post- National Form of Membership’ (2015) 21 ELJ 200, 210–12; and Jean-Yves Carlier and Luc Lebœuf, ‘Droit européen des migrations’ [2020] Journal de droit européen 132, 146. 86 Parliament v Council (n 77) para 60. 87 Case C-558/14 Khachab EU:C:2016:285, para 28; and Bevándorlási és Menekültügyi Hivatal (n 25) para 65. 88 See Case C-365/02 Lindfors EU:C:2004:449, para 32. 89 See Mahdi (n 65) paras 37, 52, 53. 90 See Case C-473/16 F EU:C:2018:36, para 53. 91 See État belge (n 59) paras 33–44. 92 See The International Protection Appeals Tribunal and others (n 20) paras 69–70.

168 Doctrinal Foundations of the Case Law higher threshold of twelve or fifteen months, since doing so would be incompatible with Article 1 CFR? Probably not, but the example illustrates that ambiguous statements on human rights can contribute to legal uncertainty.

6.5.4 Scope of the right to an effective remedy Article 47 CFR was mentioned in many rulings on the Asylum Procedures Directive, including in scenarios where the Court requested an interpretation of domestic laws in conformity with human rights. Procedural requirements flowing from that provision will be elaborated upon at length in Chapter 7.2.3 on the administrative dimension. A different question concerns the scope of Article 47 CFR ratione materiae. Closer inspection of the reasoning of the judgments on legal remedies under the Dublin system illustrates an important lacuna, which becomes practically relevant in the ongoing debate about asylum policy reform. According to Article 47(1) CFR, the right to an effective remedy applies to ‘[e]‌veryone whose rights and freedoms guaranteed by the law of the Union are violated’. We know for certain that these ‘rights’ need not be fundamental rights; statutory guarantees in secondary legislation are similarly covered. The Charter guarantees, in other words, an effective remedy whenever secondary legislation establishes an individual right. By way of example, legal remedies against the rejection of a Schengen visa are mandatory in light of Article 47(1) CFR if we conclude, in line with case law, that the Visa Code Regulation embraces a guarantee to be issued an entry visa under the conditions put forward by the legislature. But what about a scenario in which the legislature limits the right of appeal on the occasion of a legislative amendment? Is it prevented from doing so even if the right in question transcends human rights? What may sound like a theoretical inquiry is a matter of great practical concern. Remember that the Court interpreted the Dublin III Regulation (EU) No 604/2013 to have established—unlike the predecessor instrument—individual rights to challenge take back requests on procedural and other grounds, even in the absence of a human rights violation. Does that prevent EU institutions from returning to the status quo ante, as the Commission proposes to do? Chapter 13.3.4 will illustrate that the Commission wants to limit appeals to human rights considerations. Any analysis of whether this would be legal or not is complicated by judgments mentioning Article 47 CFR as one argument amongst others as to why legal remedies under the Dublin III Regulation should be interpreted broadly.93 That begs the question whether the legislature may limit judicial oversight, especially when no other human rights are at stake? A similar question comes up regarding resettlement. Chapter 13.10.2 will mention that the Commission proposes exempting the selection process from judicial oversight. Resolution of this inquiry ultimately depends on how we conceive the reference to ‘rights . . . guaranteed by [Union] law’. If Article 47(1) CFR presupposes the existence of an individual right, enshrined in legislation, the abrogation of statutory guarantees can result 93 See eg Joint Cases C-323/21, C-324/21, and C-325/21 Staatssecretaris van Justitie en Veiligheid EU:C:2023:4, para 92; and Case C-194/19 État belge EU:C:2021:270, paras 33–36, 42–43; the argument came up first in Case C- 201/16 Shiri EU:C:2017:805, para 44.

Practical Tips for Dealing with the Case Law 169 in the parallel termination or limitation of legal remedies. The wording supports this interpretation,94 since it does not—in contrast to Article 42(2)(a) CFR on the administrative right to be heard95—apply to any measure negatively affecting an individual.96 The President of the Court has argued in an extra-judicial capacity that the legislation can be changed.97 Such an outcome would mirror case law on Article 6 ECHR.98 If, conversely, access to court under Article 47 CFR transcended than the scope of individual rights, the legislature would have to justify any limitation in light of Article 52(1) CFR.99 Such justification is not warranted, however, if we conclude that an activation of Article 47(1) CFR presupposes negative repercussions for individual rights. A different solution would hold when individuals can rely on human rights. A fine example is take charge requests for unaccompanied minors, for instance an Egyptian minor residing in Greece who requests to be reunited with his uncle living in the Netherlands. Article 27(1) Dublin III Regulation (EU) No 604/2013 does not foresee legal remedies against the refusal of the take charge request, as opposed to the take back request. Nevertheless, the Court concluded that the Dutch authorities must provide for legal redress. To justify this outcome, the Grand Chamber relied on both individual rights enshrined in Article 8(2) Dublin III Regulation in line with previous comments and on Articles 7, 24, and 47 CFR.100 Doing so limited the conclusion to scenarios where individual statutory rights or human rights are at stake; relatives cannot insist on legal remedies, since neither the Dublin III Regulation nor human rights provides them with individual guarantees.101 Along these lines, the Commission’s proposal for the future Dublin system exempts human rights issues from the ban on legal remedies, for take back requests at least.

6.6 Practical Tips for Dealing with the Case Law Court judgments can be found online via the EUR-Lex portal or the Court’s search form.102 The Court’s website is particularly useful whenever one does not know the case number, which is the most reliable marker for identification. Be careful not to misapprehend the meaning of ‘C-187/20’. It does not signify ‘Case 187/20’, as the abbreviation ‘C’ stands for the French Cour de justice (Court of Justice), while ‘T’ denotes the Tribunal, the French name of the General Court. The prefix was introduced when the General Court was established in the late 1980s, and older judgments do not use it as a result. Capital letters behind the case number indicate special procedures, such as ‘PPU’ for the ‘urgent preliminary ruling

94 See AG Michal Bobek, in Case C-403/16 El Hassani EU:C:2017:659, points 74–84. 95 See Case T-429/18 BRF and SHB Comercio e Industria de Alimentos v Commission EU:T:2020:322, para 83; and Case C-141/08 P Foshan Shunde Yongjian Housewares and Hardware v Council EU:C:2009:598, para 74. 96 Contra den Heijer (n 75) 869–70, who proposes interpreting Article 47 CFR in line with Case C-277/11 MM EU:C:2012:2479, paras 83–87, even though that judgment had concerned Article 42 CFR. 97 See Koen Lenaerts, ‘Europarecht und Zuwanderung’ in Julia Iliopoulos- Strangas and others (eds), Migration –Migration –Migrations (Nomos/Stämpfli 2017) 233, 236. 98 See Károly Nagy v Hungary App no 56665/09 (ECtHR [GC], 14 September 2016) §§ 61–62. 99 See Siliva Morgades-Gil, ‘The Right to Benefit from an Effective Remedy against Decisions Implying the Return of Asylum Seekers to European Safe Countries’ (2017) 19 EJML 255, 274–77. 100 See Case C-19/21 Staatssecretaris van Justitie en Veiligheid EU:C:2022:605, paras 33–50. 101 ibid para 50. 102 See https://eur-lex.europa.eu/advanced-search-form.html; and http://curia.europa.eu/juris/recherche. jsf?language=en (both accessed 1 March 2023).

170 Doctrinal Foundations of the Case Law procedure’ (procédure préjudicielle d’urgence) or ‘P’ for ‘appeals’, which are called pourvoi in the working language of the Court. The former Court Reports were discontinued during the 2010s, and the official version of the judgments has been published digitally ever since. ‘ECLI’, the European Case Law Identifier, was introduced around the same time, also retrospectively for older rulings. ECLI introduces a unique number and is increasingly used by domestic courts as well. Note that the Court of Justice does not follow the Anglo-Saxon tradition of citing cases on the basis of the full names of the parties when citing previous judgments that responded to a preliminary reference.103 Instead, the Court refers to one party, which can be identified via the Court’s search form. In order to continue the tradition of case-specific names without abbreviations, which is deeply entrenched in EU legal culture, the Court increasingly refers to the defendant party in the domestic proceedings of a preliminary reference whenever the names of private parties have been anonymised on grounds of data protection concerns.104 If this results in indistinctive case names, such as ‘Staatssecretaris van Justitie en Veiligheid’ or ‘Bundesrepublik Deutschland’ for Dutch or German asylum cases, a fictional name suggested by a computerised automatic name generator will be chosen from 2023 onwards. In order to facilitate distinction, a short thematic description is added in brackets for more recent judgments to respond to the anonymisation of the names of most private parties in response to data protection concerns.

6.7 Summary One may easily feel lost when dealing with European migration law. Secondary legislation is highly complex, and the body of case law is constantly expanding. Idiosyncratic features of secondary legislation amplify the challenge to keep on oversight. EU institutions have occasionally put forward divergent definitions of identical terminology in different legislative acts, such as ‘third country national’, and continue establishing instrument-specific procedures and admission criteria. The idea of an overarching ‘immigration code’ (or several thematic codes) has been abandoned. The vision of simplification and consolidation has given way to sectoral legislation defined by a seemingly unstoppable trend towards idiosyncratic and convolution. In such a situation, it is useful to have a mental map that guides practitioners and academics through the jungle-like landscape. Such guidance allows us to see the proverbial forest for the trees and to develop solutions to questions which have not been decided by courts or examined widely otherwise. Against this background, this chapter set out to explain the doctrinal foundations of the case law of the Court of Justice, which follows the civil law tradition in so far as the concept of ‘legal order’ embodies a claim to doctrinal self-sufficiency. Individual rules are meant to feed into a consistent whole; the legal order is expected to provide answers to new questions, if necessary by means of dynamic interpretation to fill any gaps that might exist. Doctrinal features and unwritten general principles help judges to contribute to the vision of overall coherence. The Court recognises that the different migration law instruments should be interpreted consistently and uniformly, whenever possible. EU migration law is more than

103 104

Both parties are cited for infringement proceedings and actions for annulment. Case C-36/20 PPU was called ‘Ministerio Fiscal’ instead of ‘VL’.

Summary 171 the sum of its parts and establishes a body of laws that supports common answers to similar problems by means of horizontal cross-fertilisation between the multiple instruments discussed in this volume. Constitutional essentials, such as direct effect or the difference between directives and regulations, are known to anyone who has attended a university course on EU law. The perspective of migration law demonstrates that these abstract findings matter in practice. Several judgments empowered domestic courts to set aside domestic legislation. In the institutional practice, the abstract distinction between directives and regulations gives way to gradual variations. Regulations often require implementing legislation, whereas directives embrace provisions which fully harmonise specific subject matters. The contents of a provision is more important than the official title. To replace the Asylum Procedures Directive by a Regulation would not change much in itself. Many judgments on migration law develop classic arguments of legal hermeneutics in the continental tradition: they discuss the wording, the general scheme, objectives, or the drafting history. What may appear as a boring exercise of ‘black letter’ law to some, in fact harbours the potential of practical impact and unexpected outcomes. Anyone trying to understand—or influence—court proceedings at the national or supranational levels will appreciate the potential of doctrinal arguments. Insistence on the autonomous interpretation of Union law challenges entrenched domestic practices. Recourse to effet utile allows judges to scrutinise domestic rules that are not covered by secondary legislation explicitly. At the same time, our inspection of the case law illustrated how fragile and ambiguous the interpretative exercise can be. The multilingual character can complicate the search for straightforward answers, and the judicial practice of teleological interpretation in light of objectives reveals an almost bewildering lack of coherence. EU migration law is cherished by many for having helped to overcome state discretion. EU legislation goes much further than human rights law by laying down clearly defined statutory guarantees on entry and stay. Such individual rights in secondary legislation are an essential doctrinal ‘weapon’ in the armoury of anyone aiming at enhancing the legal position of third country nationals. While the notion of individual rights is firmly established in the case law, judgments on migration law demonstrate built-in ambiguities. On the one hand, they serve as an argument for the generous interpretation of secondary legislation, as the case law on the Dublin III Regulation (EU) No 604/2013 exemplifies. This added value explains why many judgments are silent or vague regarding human rights. On the other hand, the contents and reach of statutory rights is intimately linked to the outcome of the legislative procedure; judges will not usually reverse political choices by means of interpretative acrobatics. Such an outcome requires an interpretation of secondary legislation in conformity with the fundamental rights of the Charter.

7

Administrative Dimension Most experts in EU migration law focus their minds on the output of the EU institutions at the supranational level. To do so is perfectly legitimate, even necessary. At the same time, anyone dealing with everyday practices of administrative authorities across Europe will realise that an exclusive emphasis on the supranational level runs the risk of presenting an incomplete picture. EU rules are being applied by domestic officials and judges in literally thousands of offices and courtrooms in the countryside and capital cities. Officials and judges deciding individual cases are firmly embedded in national administrative traditions; they employ domestic implementing legislation, read, and write in the national language, and refer to rulings of national courts rather than ‘abstract’ supranational legislation or judgments, with whose idiosyncrasies they are not familiar. By focusing on the supranational level, legal experts in EU migration law often take the normative self-sufficiency of legislative prescriptions for granted, as if the publication of a regulation in the Official Journal meant that national authorities respected it quasi- automatically. Empirical studies demonstrate that this is not necessarily the case: the law in books and law in action can be different matters. Anyone trying to understand how Union law ‘reaches’ the individual should pay attention to the rules governing the application of supranational legislation by domestic authorities and courts. Officials and judges at the national level are, so to speak, the arms and legs applying supranational legislation, while domestic rules on administrative procedure and court proceedings are the muscle and bone sustaining the normative organism. Studying the administrative dimension of European migration law is notoriously difficult precisely because it depends on the domestic legal context of the twenty-seven Member States (and the countries associated with the Schengen area). If we conceive of ‘European’ migration law as a composite structure comprising both supranational legislation and domestic rules and practices, we are confronted with more than two dozen different sub-systems. The constitutional framework and interdisciplinary perspectives accentuate these composite and multi-level characteristics (7.1). Union law supports effective implementation by limiting the room for manoeuvre of the Member States in the form of procedural harmonisation, fundamental rights, and unwritten general principles (7.2). A specificity of migration law is transnational legal effects of administrative decisions. Legislative provisions and Court rulings illustrate different options of how to delineate the horizontal authority of the Member States to question the legality of administrative decisions of another country (7.3). Budgetary rules and financial instruments are often ignored by legal analyses, although they can prove to be important tools of governance through incentives (7.4).

European Migration Law. Daniel Thym, Oxford University Press. © Daniel Thym 2023. DOI: 10.1093/oso/9780192894274.003.0008

European Migration Law as a Composite System 173

7.1 European Migration Law as a Composite System Article 291 Treaty on the Functioning of the European Union (TFEU) obliges Member States to ‘adopt all measures of national law necessary to implement legally binding Union acts’. The EU level concentrates on legislative output, whose practical effectiveness depends on domestic authorities. Indirect enforcement is firmly rooted in EU constitutional law and practice, which nevertheless allows for various forms of horizontal and vertical interaction. While agencies will be discussed in Chapter 8, this section demonstrates the conceptual vagueness of the notion of an ‘area’ of freedom, security, and justice and the idea of a common asylum ‘system’ (7.1.1). EU migration law is bound to embrace multiple instruments and actors cooperating in the European administrative space (7.1.2). When analysing justice and home affairs, we should acknowledge their operational character distinguishing migration law from Union activity in other areas (7.1.3). Administrative decision-making requires distinct solutions to establish effective and accountable governance structures, with agencies as one example, amongst others (7.1.4).

7.1.1 Conceptual vagueness of ‘areas’ and ‘systems’ It was not lost upon the founders of today’s European Union that supranational rules would have to be implemented. Closer inspection of the institutional practice reveals greater complexity than the standard rule of indirect implementation suggests. Core supranational policies like competition, state aid, or the former European Coal and Steel Community were based on a high degree of Commission involvement (direct implementation), while the harmonisation of policy fields such as tax law, consumer protection, environmental policy, and social policy relied primarily on domestic authorities (indirect implementation). Other areas developed diverse forms of networks, comitology, and agencies, notably in relation to agriculture, structural funds, and, more recently, banking and telecommunication.1 Such ‘integrated’ or ‘composite’ administration is increasingly common in the field of migration, which adds important innovations. The binding character of supranational legislation should not distract us from the internal plurality of the European project. The structure of EU migration law repudiates simple comparisons with the nation state. The notion of an ‘area’ of freedom, security, and justice does not support a different conclusion, although it may be read, at first reading, to imply territorialisation, given that the term ‘area’ has territorial connotations in the English language. By contrast, however, the French word espace and the German Raum prove linguistically more flexible: they cover both the territorial ‘area’ and the boundless ‘space’.2 The historic context reiterates this point. The designation ‘area of freedom, security and justice’ developed in the late 1990s, mirroring the deliberately indistinct

1 See Paul Craig, EU Administrative Law (3rd edn, OUP 2018) ch 1. 2 Other Roman languages mirror the French, while Germanic languages fluctuate between the German open- endedness and the English ‘area’, which can also designate subjects of activity; Slavic languages were not among the official languages when the term was popularised after the Tampere European Council; see also Michael Schwarz, Grundlinien der Anerkennung im Raums der Freiheit, der Sicherheit und des Rechts (Mohr Siebeck 2016) 217–22.

174 Administrative Dimension usage for other policy projects with uncertain contours, such as the European Economic Area or the European Higher Education Area. It was apparently chosen, at the time of the Treaty of Amsterdam, to evade the notion of ‘policy’, which can be read to imply a higher density of cooperation in the semantic practice of the EU institutions.3 Along similar lines, the ‘Common European Asylum System’, which is nowadays commonly written as an acronym, does not necessarily designate a high level of integration. In the EU context, the term ‘common’ (French: commun) is usually—though not uniformly— employed to designate an intermediate degree of harmonisation, in contrast to a ‘single’ (French: unique) policy.4 The terminology seems to have been a deliberate choice made by heads of state or government at their meeting in Tampere in the autumn of 1999.5 Primary law does not use the formula as a technical term written as an acronym with capital letters— unlike the widely used abbreviation ‘CEAS’. A common asylum ‘system’ may be rationalised linguistically to transcend the focus of other policies on legislative harmonisation by embracing the administrative dimension.6 Visas, border controls, and international cooperation complement the EU’s asylum policy. At a practical level, Article 78(2)(a) TFEU highlights the option of a ‘uniform status of asylum . . . valid throughout the Union’.7 One should be cautious not to read too much into this phrasing. The formula signalled that the Treaty of Lisbon transcended earlier limitations to minimum standards and does not authorise the introduction of a distinct asylum status departing from the Refugee Convention, to which Article 78(1) TFEU refers explicitly.8 Instead, the vision of ‘validity throughout the Union’ may be read to refer to transnational effects: it can mean either favourable free movement for beneficiaries of international protection or the mutual recognition of positive decisions, thereby paving the ground for swift returns in case of secondary movements.9 The example illustrates that the degree of commonality within the CEAS remains ambiguous: one may adequately describe it as a ‘system of [national] systems’.10 In any case, the objective of a common asylum ‘system’ does not involve federal uniformity.

3 See Jörg Monar, ‘The Area of Freedom, Security and Justice’ in Armin von Bogdandy and Jürgen Bast (eds), Principles of European Constitutional Law (2nd edn, Hart Publishing 2009) 551, 556–57; the term ‘policy’ was applied to justice and home affairs by the Treaty of Nice in the early 2000s. 4 Think of the common market (established in 1968) and the later move towards the single market (realised in 1992); similarly, the EU had a common monetary policy before the single currency was introduced; however, we refer to a Common Agricultural Policy or Common Commercial Policy despite a high degree of uniformity. 5 The former Vice-Director General for Justice and Home Affairs, Jean-Louis De Brouwer, recounted at the meeting of the European Migration Network in Helsinki on 26 October 2019 that the former French President Jacques Chirac insisted on the designation of a ‘common’ (not: single) asylum system. 6 See Evangelia (Lilian) Tsourdi, ‘The Emerging Architecture of EU Asylum Policy’ in Francesca Bignami (ed), EU Law in Populist Times. Crises and Prospects (CUP 2020) 191, 200–201; and Cathryn Costello, ‘Administrative Governance and the Europeanisation of Asylum and Immigration Policy’ in Herwig CH Hofmann and Alexander Türk (eds), EU Administrative Governance (Edward Elgar Publishing 2006) 287, 322. 7 TFEU, art 78(2)(b) for subsidiary protection does not use the territorial claim. 8 See Daniel Fröhlich, Das Asylrecht im Rahmen des Unionsrechts (Mohr Siebeck 2011) 162–75; and Daniel Thym, ‘Legal Framework for EU Asylum Policy’ in Daniel Thym and Kay Hailbronner (eds), EU Immigration and Asylum Law. Article-by-Article Commentary (3rd edn, CH Beck/Hart Publishing/Nomos 2022) MN 14–17. 9 See Steve Peers, ‘Institutional Framework’ in Steve Peers and others (eds), EU Immigration and Asylum Law (Text and Commentary), vol 3 (2nd edn, Brill Nijhoff 2015) 7, 13. 10 See https://en.wikipedia.org/wiki/System_of_systems (accessed 1 March 2023); and also AG Yves Bot, Opinion in Case C-213/17 X EU:C:2018:434, point 8.

European Migration Law as a Composite System 175

7.1.2 Multiplicity of actors at different levels Political and legal science started emphasising the ‘multi-level’ character of the European project from the 1990s onwards to highlight interlinkages, mutual dependencies, and conceptual amalgamation.11 This novel description responded to an increasing observation of overlaps in the fields of policy-making, legal effects, and constitutional concepts— in contrast to the earlier focus on separation and distinction in line with the concept of supranational legal autonomy. Multi-level thinking presented itself in both harmonious, coordinated-oriented accounts and confrontational variants accentuating potential differences and disputes. It was applied to the administrative dimension to describe the element of coordination in composite forms of comitology, networks, and agencies, particularly in the work of Italian and German scholars whose rich research output was later taken up by the transnational debate in English. It has become common to refer to an ‘integrated’ or ‘composite’ multi-level administration.12 While this chapter highlights composite features of the administrative dimension, the multi-level character of EU migration law embraces the legislature and the judiciary as well. They are indispensable for adopting implementing legislation and for designing complementary national legislation, such as nationality law, regularisation, and migrant integration. The seemingly clear-cut prescription of domestic treatment means different things across the Union depending on rules for nationals. EU migration law is often significantly less uniform on the ground than the widespread focus on the output of the EU institutions suggests. One may even go as far as saying that it may be necessary to analyse ‘European’ migration law holistically by combining supranational legislation with domestic rules and practices.13 It has been explained in the introduction that many research questions cannot be adequately addressed by discussing the EU level in isolation. It will often be necessary to include the domestic dimension at least exemplarily, for instance by means of comparative analyses. To do so allows for insights regarding the added value of supranational rules; often their impact will differ from country to country and may change over time. It can be a formidable challenge to design such research projects, which have to pay attention to the diversity of national rules and practices without getting lost in the sheer complexity of the legal material in its multiple languages. The term ‘multi-level’ is often used along with the notion of ‘governance’, which designates the spread of informal and non-hierarchical forms of rule-making, including through soft law and the involvement of private actors.14 These softer forms of governance have 11 For political science see Fritz W Scharpf, ‘Community and Autonomy. Multi-Level Policy-Making in the European Union’ (1994) 1 J Eur Politics & Policy 219; for constitutional law see Ingolf Pernice, ‘Multilevel Constitutionalism and the Treaty of Amsterdam’ (1999) 36 CML Rev 703. 12 ‘Composite’ is a rough translation of the German ‘Verwaltungsverbund’; see Eberhard Schmidt-Aßmann, ‘Verfassungsprinzipien für den europäischen Verwaltungsverbund’ in Wolfgang Hoffmann-Riem and others (eds), Grundlagen des Verwaltungsrechts. Band I (2nd edn, CH Beck 2012) § 5; and also Giacinto della Cananea, ‘The European Union’s Mixed Administrative Proceedings’ (2004) 68 L & Contemp Probs 197; and Herwig CH Hofmann and Alexander H Türk, ‘The Development of Integrated Administration in the EU and its Consequences’ (2007) 13 ELJ 253. 13 See generally Armin von Bogdandy, ‘National Legal Scholarship in the European Legal Area’ (2012) 10 ICON 614. 14 See Herwig CH Hofmann, Gerard C Rowe, and Alexander H Türk, Administrative Law and Policy of the European Union (OUP 2011) ch 9.

176 Administrative Dimension traditionally had a lesser weight in the field of migration, which concentrates on classic forms of hierarchical ‘government’. That is not to say that elements of governance have no role to play, as illustrated in Chapter 2.3.4 on soft law and Chapter 4.2.4 for private actors. On the whole, however, their relevance stays short of their involvement in other domains.

7.1.3 Operational character of asylum and border controls Chapter 6 demonstrated that the Court of Justice approaches migration law as an integral part of the supranational legal order; case law on areas other than migration influences the interpretation of legislative instruments—and vice versa. The holistic outlook of the judicial function does not mean, however, that administrative solutions developed for one policy field can easily be transplanted to other domains. It is widely accepted, in research on administrative law, that the structure of the public administration has seen much differentiation in recent decades.15 There are important contextual differences between, for example, the supervision of financial services, the authorisation of new chemicals, the disbursement of farm subsidies, and asylum decisions, in addition to the commonality that all these domains are subject to supranational legislation. When it comes to EU migration law, protracted compliance deficits are palpable in core areas of asylum, border control, and return policies.16 National administrations may lack the political will or the managerial capacities to guarantee swift and fair asylum procedures, adequate reception conditions, and respect for procedural obligations during border controls; individuals often prefer not to comply with mandatory periods of voluntary departure or embark on secondary movements. It does not imply ethical judgment to note these discrepancies between the law in the books and everyday practices. Publication of new rules in the Official Journal does not guarantee success on the ground; it would be insufficient to assume that the doctrine of direct effect and preliminary references alone can guarantee respect for EU law.17 EU institutions are well-advised to consider administrative mechanisms supporting compliance. Generally speaking, there is no uniform expression of EU administrative law but variations with certain elements in common.18 To be successful, administrative rules should reflect the distinct features of the policy field in question; it depends on contextual factors whether regulatory techniques can be transplanted from one policy field to another. If that is correct, it is essential to grasp the specificities of migration law to develop context-sensitive administrative measures supporting practical implementation. Arguably, a decisive element is the operational character of migration law which one might analytically— not pejoratively—describe as an exercise of ‘mass administration’.19 The application of 15 See generally Helmuth Schulze-Fielitz, ‘Grundmodi der Aufgabenwahrnehmung’ in Hoffmann-Riem and others (n 12) § 12; see also Carol Harlow and Richard Rawlings, Law and Administration (3rd edn, CUP 2009) ch 2. 16 That conclusion is no novel phenomenon; see Costello (n 6) 314–22; and Neil Walker, ‘In Search of the Area of Freedom, Security and Justice’ in Neil Walker (ed), Europe’s Area of Freedom, Security and Justice (Hart Publishing 2004) 3, 20–23. 17 See Daniel Thym, ‘The “Refugee Crisis” as a Challenge of Legal Design and Institutional Legitimacy’ (2016) 53 CML Rev 1545, 1554–58. 18 See generally Bruno de Witte, ‘Institutional Variation Across Policy Fields in the Evolution of European Union Law’ (2013) 20 MJECL 465; and Giandomenico Majone, Europe as the Would-be World Power (CUP 2009). 19 See Rainer Wahl, ‘Die Aufgabenabhängigkeit von Verwaltung und Verwaltungsrecht’ in Eberhard Schmidt- Aßmann and others (eds), Reform des Allgemeinen Verwaltungsrechts. Band 1 (Nomos 1993) 177, 192–96, 206–208.

European Migration Law as a Composite System 177 migration law habitually involves the application of supranational rules to numerous individuals by officials with a relatively low degree of formal education (as opposed to, for instance, stakeholders in competition cases). To build an effective and accountable ‘mass administration’ requires a challenging mixture of administrative routine and standardisation to ensure equal treatment and attention to the particularities of the individual case. The sheer number of individual files commands tremendous efforts in terms of administrative resources, organisation, and training. Mutual distrust between migrants and public officials further complicates an effective fulfilment of administrative tasks. These operational challenges are particularly pronounced in the fields of visas, border controls, asylum, and return, while legal migration is usually less confrontational. We shall see that the EU institutions aim to support domestic authorities through financial support and agencies; their structure and output reflects the operational characteristics and distinguishes them from other policy fields and the agencies established on these matters.

7.1.4 Diverse avenues of inter-state cooperation Visibility of Frontex and the Asylum Agency should not leave us with the impression that they are the only or primary element of administrative collaboration. Other forms of cooperation have been developed, including on segments of migration law the agencies do not cover. What is more, neither Frontex nor the Asylum Agency are simple apparatuses of vertical top-down control; their governance structure and operational capacities depend, as we shall see, on loyal cooperation with national authorities, not least for the secondment of personnel. Horizontal cooperation between Member States is a general feature of justice and home affairs, as highlighted by Articles 71–74 TFEU. In a series of judgments on the Dublin system, discussed in Chapter 13.3.6 on asylum, the Court emphasised that inter- state cooperation and mutual trust relate to the ‘raison d’être of the European Union and the creation of an area of freedom, security, and justice’.20 Several explanations illustrate why horizontal cooperation is critical for EU migration law. The need for cooperation becomes obvious when third country nationals cross internal borders, be it as asylum seekers in scenarios of secondary movements, be it as workers engaged in intra-European mobility. It becomes further evident when an administrative decision has transnational legal effects, as in the case of Schengen visas: a visa delivered by an Estonian consulate authorises entry into Finland, Latvia, or any other Schengen country. There are uniform patterns of how inter-state collaboration unfolds. There are variances in the legal rules and the methods employed, which are ultimately defined by the legislative act in question. A bird’s eye view allows us to identify clusters of activity, although these groups do not translate into clear-cut prototypes or distinct models. Not even ‘mutual trust’, highlighted so prominently by the Court, constitutes an overarching constitutional or legislative principle; its characteristics and legal effects depend on the legislation in question.21 At an intermediate level of abstraction, we may identify four patterns of inter-state cooperation. 20 Joined Cases C-411/10 and C-493/10 NS and others EU:C:2011:865, para 83. 21 See Francesco Maiani and Sara Mogliorini, ‘One Principle to Rule Them All! Anatomy of Mutual Trust in the Law of the Area of Freedom, Security and Justice’ (2020) 57 CML Rev 7.

178 Administrative Dimension First, information exchange has been essential ever since the first version of the Schengen Information System (SIS). Recent years have seen upgrades of existing databases and the introduction of new ones, such as the Entry/Exit System (EES) or the European Travel Information and Authorisation System (ETIAS). Although their operation is largely invisible, the practical and conceptual impact is substantial. Databases will take centre stage in Chapter 9. Secondly, we can observe composite procedures and transnational legal effects of administrative decisions, which exist in other segments of Union law as well. Instead of presenting a uniform phenomenon, statutory manifestations of composite procedures and transnational effects differ markedly, both in migration law and beyond.22 They embrace truly transnational decisions when one Member State delivers a Schengen visa on behalf of all the others as well as limited transnational effects in cases of intra-European mobility. By way of example, a second Member State may reject the mobility of researchers and students, admitted by another country, under the conditions laid down in secondary legislation.23 Indirect transnational effects include the rejection of asylum applications as inadmissible if another Member State had already granted protection.24 Composite procedures comprise consultation among national authorities concerning the accuracy of entry bans in the SIS, which will be discussed towards the end of this chapter. Thirdly, EU institutions support convergence through networks among practitioners and financial support. Such networks include formal institutions like the European Migration Network (EMN), which produce valuable comparative reports.25 Such institutionalised networks played a prominent role in the early years of EU migration policy when transnational links had to be established in an area that has traditionally been defined by domestic introspection. Cooperation within Schengen proved essential in establishing an esprit de corps;26 it was later replicated in other areas such as illegal immigration or asylum.27 Working parties within the Council similarly provide an institutional platform for trust building, mutual learning, and policy exchange, including on sensitive areas such as pre-departure language tests as a precondition for family reunification which have spread horizontally between several Member States.28 Finally, there are different forms of operational cooperation ranging from the organisation of joint return flights to cooperation among border guards at the internal borders of the Schengen area.29 Having said this, most operational cooperation in the domains of border

22 See Schwarz (n 2) chs 5–6; and Jürgen Bast, ‘Transnationale Migrationsverwaltung des europäischen Migrationsraums’ (2007) 46 Der Staat 1, 16–32. 23 See Students and Researchers Directive (EU) 2016/801, arts 27–32. 24 See Asylum Procedures Directive 2013/32/EU, art 32(2)(a). 25 See https://home-affairs.ec.europa.eu/networks/european-migration-network-emn (accessed 1 March 2023); the EMN was established by Decision 2008/381/EC establishing a European Migration Network [2008] OJ L131/7, with later amendments. 26 See Ruben Zaiotti, Culture of Border Controls (University of Chicago Press 2011) chs 5–6. 27 See Philippe De Bruycker and Evangelia (Lilian) Tsourdi, ‘Building the Common European Asylum System beyond Legislative Harmonisation’ in Vincent Chetail and others (eds), Reforming the Common European Asylum System (Brill 2016) 473; and Regulation (EU) 2019/1240 on the creation of a European network of immigration liaison officers [2019] OJ L198/88, which replaced the previous Council Regulation (EC) No 377/2004 [2004] OJ L64/1. 28 See ch 14.1.2. 29 See Decision 2004/573/EC on the organisation of joint flights for removals [2004] OJ L261/28; Schengen Borders Code Regulation (EU) 2016/399, arts 17 and 18; and Matthias Laas, Die Entstehung eines europäischen Migrationsverwaltungsraumes (Nomos 2008) 150–212.

National Procedural Autonomy and Its Limits 179 controls and asylum is nowadays channelled through Frontex and the Asylum Agency, which will feature in Chapter 8. In other areas, cooperation often remains bilateral. Many pieces of legislation contain provisions on horizontal cooperation. A telling example are Schengen visas, for which national consulates present in third states establish cooperation mechanisms.30

7.2 National Procedural Autonomy and Its Limits In the absence of harmonisation, Member States apply national rules on administrative and court procedure when deciding individual cases. Such indirect implementation is commonly discussed under the heading of ‘national procedural autonomy’. The degree of freedom varies considerably, depending on the contents of secondary legislation (7.2.1). In the absence of legislative harmonisation, the Court applies unwritten general principles; the principle of effectiveness has gained practical relevance in the case law on migration, especially as a corrective tool for strict time limits (7.2.2). General principles are increasingly buttressed by the procedural safeguards in the Charter of Fundamental Rights. Many judgments rely upon the right to an effective remedy to correct domestic migration laws (7.2.3). Inspection of the case law on procedural deficits under the Asylum Procedures Directive and the Return Directive shows fluctuations in the judicial output, which complicate the search for cross-sectoral coherence (7.2.4).

7.2.1 The many faces of procedural harmonisation Anyone familiar with everyday practices understands how crucial procedural rules are for the resolution of individual cases. They are particularly relevant for visas, border controls, asylum, and return, where domestic authorities routinely assess the situation in foreign countries that are often subject to an enhanced degree of uncertainty. In borderline scenarios where the claim to protection hangs in the balance, procedural rules can be at least as important as questions of substance, such as the definition of refugee status. When discussing the supranational approach to procedures, the EU institutions and the Court are in a precarious situation for the simple reason that domestic rules and administrative traditions differ markedly. This diversity renders it difficult to design common standards and to develop a coherent case law. This dependence of migration law on procedures indicates that the principle of subsidiarity does not generally prevent the EU institutions from harmonising procedural standards despite the general desire, expressed in Article 67(1) TFEU, that justice and home affairs shall respect ‘the different legal systems and traditions of the Member States’. Legal bases in Articles 77(2)–79(2) TFEU must be interpreted to allow for the harmonisation of administrative procedures depending on political choices and the relevance of procedures for the different sub-segments of migration law.31 The level of detail varies considerably. 30 See ch 11.4.5. 31 For asylum see the explicit reference in TFEU, art 77(2)(b); for the other provisions see Daniel Thym, ‘Legal Framework for Entry and Border Controls’ in Thym and Hailbronner (n 8) MN 8, 10a.

180 Administrative Dimension While Article 4 Single Permit Directive 2011/98/EU lays down an abstract procedural skeleton (like most other directives on legal migration), the Asylum Procedures Directive 2013/ 32/EU contains detailed rules. By way of example, it regulates the personal interview in no fewer than four articles, jointly comprising more than 1,300 words. The degree of harmonisation varies greatly between and within the different legal instruments. Chapter 6.3.2 explained that the abstract distinction between directives and regulations gives way to gradual variations in the institutional practice. Even within one instrument, we have to assess the degree of harmonisation carefully. For instance, the Court interprets Article 46(3) Asylum Procedures Directive 2013/32/EU to provide detailed guidance on the density of judicial oversight, which must provide ‘for a full and ex nunc examination of both facts and points of law’. That does not mean, however, that all aspects of the court procedure are fully harmonised. By way of example, Article 46(10) leaves the choice whether to establish time limits for the judicial decision with national parliaments. In such circumstances, the Court will usually respect the decision made at the domestic level, although it may still, as we shall see, scrutinise domestic rules in light of human rights or the unwritten general principles. Even seemingly clear-cut rules like the requirement of ‘a full and ex nunc examination of both facts and points of law’ will not necessarily translate into uniform practices on the ground. Comparative studies portray profound differences between national models in terms of administrative procedure and judicial oversight.32 Those studying the procedural dimension should be aware of these profound national disparities. This dependence on the domestic context has a knock-on effect on the practical effects of legislative harmonisation. Those not familiar with everyday practices may ignore that ostensibly straightforward concepts like the ‘burden of proof ’ and other evidentiary standards can mean different things in different countries: while some countries limit court oversight mostly to the facts and arguments put forward by the parties, others require extensive court scrutiny ex officio.33 Similarly, the notion of executive ‘discretion’ can refer to different legal concepts and judicial powers across the Union.34

7.2.2 Effectiveness as a corrective vehicle In the absence of leges speciales in secondary legislation, states apply national rules to administrative procedures and court proceedings in line with the principle of ‘national procedural autonomy’. Crucially, national procedural autonomy comes along with supranational limitations, which can be activated to restrict the procedural leeway. These unwritten limitations allow judges to fill regulatory gaps within EU legislation on the basis of a twofold caveat. When applying supranational legislation, Member States must ensure, firstly, that the rules for EU-related claims are not less favourable than those governing

32 See Michel Fromont, ‘A Typology of Administrative Law in Europe’ in Armin von Bogdandy and others (eds), The Max Planck Handbooks in European Public Law, vol I (OUP 2017) 579; and the contributions to Giacinto della Cananea and Mauro Bussani (eds), Judicial Review of Administration in Europe (OUP 2021). 33 See Ida Staffans, Evidence in European Asylum Procedures (Martinus Nijhoff 2012); and also Jalek Chlebny, ‘Public Order, National Security and the Rights of Third-Country Nationals in Immigration Cases’ (2018) 20 EJML 115, 120–26. 34 See Takis Tridimas, The General Principles of EC Law (2nd edn, OUP 2007) chs 3–5.

National Procedural Autonomy and Its Limits 181 similar domestic actions (principle of equivalence) and, secondly, that they do not render the exercise of rights conferred by Union law practically impossible or excessively difficult (principle of effectiveness).35

7.2.2.1 Court practice on migration law Effectiveness is far more important than the sister principle of equivalence, whose application the Court often leaves to domestic courts which are better placed to compare national laws.36 In doing so, judges do not insist on categorical parallelism. Instead, they recognise that asylum procedures can be subject to stricter requirements than rules for other areas of domestic law; no equal treatment is required when procedures on two subject matters are not comparable, for instance regarding the suspensive effect of legal remedies.37 The Court found the objective of ‘expeditious’ decision-making to support stricter time-limits for asylum applications in comparison to other areas.38 It also confirmed that distinctions within asylum law between different countries of origin do not constitute unjustified unequal treatment.39 The added value of the effectiveness test concerns domestic procedural standards not subject to harmonisation. On the whole, the Court’s practice is bound to remain sketchy: it concerns selective issues, which do not easily blend into an overarching theory. An underlying reason is the dependence on preliminary references. Domestic judges will rarely consult judges in Luxembourg on procedural questions which are not harmonised, although a first ruling may trigger follow-up references on related issues, thus resulting in a considerable number of judgments on interrelated questions. That is precisely what happened in the field of migration, in particular with regard to time limits. Other subject matters may follow in the years to come. In the majority of cases, judges have found national rules to violate the principle of effectiveness. Nevertheless, such an outcome is not a foregone conclusion and can be rationalised by national courts primarily referring problematic cases. Generally, the Court recognises that it can be legitimate to curb legal remedies, for instance to guarantee that ‘applications for international protection should be dealt with expeditiously’.40 Appeals to a higher court can be limited to matters raised before the lower court.41 Judges also confirmed, in the context of asylum, that legal certainty can outweigh considerations of effectiveness. In doing so, the Court had recourse to judgments on other segments of Union law to confirm that administrative decisions and court rulings, for which time limits for remedies or appeals have elapsed, need not be automatically reversed even though they were based on an incorrect interpretation of Union law.42 Effectiveness proves an essential argument to correct restrictive national rules but not an all-purpose tool.

35 This has been settled case law ever since Case 33/76 Rewe-Zentralfinanz EU:C:1976:188, para 5; see further Koen Lenaerts, Ignace Maselis, and Kathleen Gutman, EU Procedural Law (OUP 2014) ch 4. 36 By way of example see Case C-651/19 Commissaire général aux réfugiés et aux apatrides EU:C:2020:681, paras 39–41, 51–52. 37 See Case C-175/17 Belastingdienst/Toeslagen EU:C:2018:776, paras 41–46. 38 See Commissaire général aux réfugiés et aux apatrides (n 36) para 54. 39 See ch 10.4. 40 Commissaire général aux réfugiés et aux apatrides (n 36) para 54. 41 Case C-161/15 Bensada Benallal EU:C:2016:175, paras 27–28. 42 See Joined Cases C-924/19 PPU and C-925/19 PPU Országos Idegenrendészeti Főigazgatóság Dél-alföldi Regionális Igazgatóság EU:C:2020:367, paras 185–87; and Craig, EU Administrative Law (n 1) 613–18.

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7.2.2.2 Time limits as a test case The example of time limits illustrates that the operationalisation of the effectiveness test remains notoriously difficult. Why? A comparison between judgments shows that practical consequences depend on the factual and legal specificities of the case at hand.43 In the field of asylum, secondary legislation stipulates in general language that Member States ‘shall provide for reasonable time limits and other necessary rules for the applicant to exercise his or her right to an effective remedy’.44 On this basis, judges held a time limit of 15 days to be acceptable, while striking down an eight-day rule as a matter of principle (subject to a caveat that it might be acceptable in some scenarios).45 Strictly calculated deadlines of 10 days for regular appeals and five days for legal remedies after a subsequent asylum application made during detention were accepted, although the Court highlighted that national judges had to ascertain whether other safeguards, such as access to legal assistance, were practically available.46 While the principle of effectiveness will work to the benefit of third country nationals in many cases, it is not intrinsically linked to such an outcome. For instance, general principles were found to stand in the way of domestic rules obliging authorities to positively respond to an application for a residence permit for the sole reason that time limits for taking a decision had elapsed; authorities must diligently apply the conditions laid down in secondary legislation.47 Conversely, the Court found that a Hungarian rule obliging domestic courts to deliver a ruling within a certain time frame violates the principle of effectiveness, provided that national law prevents judges from performing their oversight function effectively in light of contextual factors such as workload, working conditions, or the difficulty of certain cases.48

7.2.3 Fundamental right to an effective remedy Court judgments on national procedural autonomy increasingly overlap with human rights. On the basis of the general comments in Chapter 5, this section will concentrate on procedural safeguards in the Charter of Fundamental Rights. As a matter of principle, these guarantees hold the potential for surprise outcomes, effectively supplanting ‘shallow’ statutory provisions in secondary legislation by ‘deep’ judicial reshaping of the domestic legal order.49 Procedural guarantees in the Charter can be applied, together with the principle of effectiveness, to domestic rules not subject to supranational harmonisation, in line with the

43 See generally Craig, EU Administrative Law (n 1) 759–87. 44 Asylum Procedure Directive 2013/32/EU, art 46(4). 45 See Case C-69/10 Samba Diouf EU:C:2011:524, paras 66–68; and Case C-564/18 Bevándorlási és Menekültügyi Hivatal (Tompa) EU:C:2020:218, paras 72–73; moreover, Case C-429/15 Danqua EU:C:2016:789, paras 41–48 concerned time limits for submitting an asylum application; see also Marcelle Reneman, ‘Speedy Asylum Procedures in the EU’ (2013) 25 IJRL 717, 730–46. 46 See Case C-755/19 THC. EU:C:2021:108, paras 26–44; and Commissaire général aux réfugiés and aux apatrides (n 36) paras 54–64, with additional comments on the special situation of an applicant residing abroad. 47 See Case C-706/18 Belgische Staat EU:C:2019:993, paras 26, 34–36; and Case C-246/17 Diallo EU:C:2018:499, paras 44–49. 48 See Case C-406/18 Bevándorlási és Menekültügyi Hivatal EU:C:2020:216, paras 26–34. 49 See Jürgen Bast, ‘Of General Principles and Trojan Horses. Procedural Due Process in Immigration Proceedings under EU Law’ (2010) 11 GLJ 1006.

National Procedural Autonomy and Its Limits 183 case law on Article 51(1) CFR defining the scope of the Charter of Fundamental Rights.50 In practice, however, the impact of the Charter depends on domestic courts referring questions of interpretation to the Court in Luxembourg.

7.2.3.1 Availability of legal remedies In the judicial output, fundamental procedural rights have gained relevance for the Asylum Procedures Directive and the Return Directive, in particular. The right to an effective remedy under Article 47 CFR proved particularly relevant, since it transcends existing obligations under human rights law in two respects. First, the Charter requires an effective remedy ‘before a tribunal’, thereby going beyond the combined reading of Articles 6 and 13 ECHR that do not generally require remedies before courts, due to the non-civil and non-criminal character of migration law.51 Chapter 3.1.3 explained that Article 13 Return Directive has to be interpreted in conformity with the Charter. Reference to complaints before an ‘administrative authority’ must be interpreted to require judicial remedies in light of Article 47 CFR. Secondly, the Charter does not, unlike Article 13 ECHR, confine remedies to potential human rights violations.52 The Charter applies whenever ‘rights guaranteed by Union law’ may be violated. In doing so, Article 47 CFR effectively guarantees access to domestic courts whenever we conclude that a directive or regulation lays down an individual right. Chapter 6.5 illustrated that it depends on the outcome of the legislative process whether the instruments discussed in this volume embrace individual rights. Whenever this is the case, Member States are obliged to establish judicial oversight in areas such as refusal of entry or visa procedures which had not traditionally been subject to legal remedies.53 EU migration law played a crucial role in reining in earlier notions of largely unfettered state discretion over the entry and stay of foreigners. 7.2.3.2 Scope of judicial oversight Notwithstanding the wider scope, Article 47 CFR must be interpreted in line with ECtHR case law on Articles 6 and 13 ECHR to start with.54 When analysing the case law, it is not always straightforward to what extent Court rulings on specific subject matters can be generalised, since the judicial reasoning does not always distinguish between constitutional requirements and legislation-specific considerations. A perfect example is the question of whether legal remedies must provide for an ex nunc assessment. While of Article 46(3) Asylum Procedures Directive 2013/32/EU answers that question in the affirmative, Article 27 Dublin III Regulation (EU) No 604/2013 remains silent. Judges interpreted this silence to mean that the legislature ‘has harmonised only some of the procedural rules governing’ legal remedies against take back decisions.55 The principle of effectiveness may be activated 50 See ch 5.4.4; and Case C-403/16 El Hassani EU:C:2017:960, paras 33–34 on the interaction with national procedural autonomy. 51 See MN and others v Belgium App no 3599/18 (ECtHR [GC], 5 May 2020) §§ 137–40; and Maaouia v France App no 39652/98 (ECtHR [GC], 5 October 2000) §§ 32–41. 52 Article 13 ECHR presupposes an arguable complaint that another human right was violated, for instance Article 3 ECHR; see MSS v Belgium and Greece App no 30696/09 (ECtHR [GC], 21 January 2011) § 288. 53 See Schengen Borders Code Regulation (EU) 2016/399, art 14(3); and Visa Code Regulation (EC) No 810/ 2009, art 32(3); see also El Hassani (n 50) paras 39–41; and Case C-949/19 Konsul Rzeczypospolitej Polskiej w N EU:C:2021:186, paras 41–46. 54 See Case C-205/15 Toma and Biroul Executorului Judecătoresc Horaţiu-Vasile Cruduleci EU:C:2016:499, para 40; and Marcelle Reneman, EU Asylum Procedures and the Right to an Effective Remedy (Hart Publishing 2014). 55 See Case C-194/19 État belge EU:C:2021:270, paras 37–41.

184 Administrative Dimension to limit state discretion, but it will not usually require a full ex nunc assessment.56 ECtHR rulings on independent and rigorous scrutiny under Article 13 ECHR may serve as a guideline for legislative instruments which, unlike the Asylum Procedures Directive, do not harmonise the nature of judicial oversight.57

7.2.3.3 Suspensive effect and legal assistance Time is often a matter of great practical importance in border control, asylum, and return procedures, in particular when individuals seek to remain on the territory. In this respect, settled case law foresees that an ‘effective remedy’ does not generally require automatic suspensive effect, let alone a right to be admitted to the territory during judicial proceedings.58 Instead, the ECtHR’s frequently-cited formula that Member States must provide for ‘automatic suspensive effect’ presupposes a real risk of an irreversible human rights violation, in particular with regard to Article 3 ECHR59 (not, however, for private and family life60). Whenever this condition is fulfilled, automatic suspensive effect requires domestic courts to be able to issue a suspension order. The language of automatism refers to an effective guarantee against refoulement; states have leeway on how to organise the procedure.61 The CJEU shares this view. Article 47 CFR does not entail a generic right to remain, unless individuals can demonstrate that there is an arguable claim under Article 4 CFR.62 The exclusion of suspensive effect for take back decisions under the Dublin system and for refusal of entry at external borders can be compatible with fundamental rights.63 In any case, suspensive effect concerns the first instance of judicial oversight only, not, however, legal remedies at a second judicial instance, which is not mandatory under human rights law.64 The abstract requirement, in ECtHR case law, that remedies ‘must be available in practice as well as in law’65 can have repercussions for access to legal assistance and interpretation. A telling example of how important these guarantees can be is the situation in the hotspots, which are often found in the geographic periphery where legal assistance can be difficult to obtain. Articles 19–23 Asylum Procedures Directive 2013/32/EU contain far- reaching statutory guarantees in terms of procedural support, while Article 13(3) Return Directive 2008/115/EC simply refers to the ‘possibility’ of obtaining legal assistance, without, however, obliging Member States to make it factually available. There is complex human rights case law on when legal assistance is mandatory, possibly even free of charge in acute scenarios. Judges do not, however, recognise a generic and unconditional guarantee.66

56 ibid paras 42–47. 57 For a summary see De Souza Ribeiro v France App no 22689/07 (ECtHR [GC], 13 December 2012) §§ 77–83. 58 For a different proposal see Helen Oosterom-Staples, ‘Effective Rights for Third-Country Nationals?’ in Hans Lindahl (ed), A Right to Inclusion and Exclusion? (Hart Publishing 2009) 65, 89–90. 59 See the summary in Khlaifia and others v Italy App no 16483/12 (ECtHR [GC], 12 December 2016) §§ 276–77. 60 See De Souza Ribeiro (n 57) paras 82–83. 61 See Case C-233/19 CPAS de Liège EU:C:2020:757, paras 49–53; and Čonka v Belgium App no 51564/99 (ECtHR, 5 February 2002) § 79. 62 CPAS de Liège (n 61) paras 61–66; Case C-181/16 Gnandi EU:C:2018:465, paras 54–56; Case C-239/14 Tall EU:C:2015:824, paras 56–58; and Case C-562/13 Abdida EU:C:2014:2453, paras 44–53. 63 On Dublin see ch 6.5.4; the compatibility of Schengen Borders Code Regulation (EU) 2016/399, art 14(3) with human rights is practically guaranteed by the option to apply for asylum; see also Reneman (n 54) ch 7. 64 See Belastingdienst/Toeslagen (n 37) paras 22–24, 32–36. 65 MSS v Belgium and Greece (n 52) § 290. 66 See Case C-279/09 DEB EU:C:2010:811, paras 37–52; and Case C-249/13 Boudjlida EU:C:2014:2431, paras 64–70.

National Procedural Autonomy and Its Limits 185 Experts in migration law should understand that to find otherwise would have far-reaching implications for other segments of the law.

7.2.4 Good administration The fundamental right to good administration in Articles 41 CFR is an innovative feature. While the provision directly binds the institutions and agencies of the Union, the Court has recognised that it can be applied domestically as an unwritten general principle.67 Practical relevance depends on the domestic context. Member States with sophisticated procedural guarantees will be less affected than other countries. The right to be heard and the obligation to give reasons have features in the supranational case law on migration so far.

7.2.4.1 Giving reasons and right to be heard Judgments on the right to good administrative exhibit caution. The Court found that the standard form for rejecting visa applications meets the obligation to state reasons under Article 42(2)(c) CFR, although the set of pre-defined answers are highly abstract, mirroring a multiple choice test more than elaborate explanations.68 It also concluded that reasons must be given for ordering or prolonging detention under Article 15(3) Return Directive, not however for the review of an existing detention order.69 Conversely, national authorities cannot generally refrain from giving reasons on public security grounds, as the Charter requires them to always convey the essence of their reasoning in a manner which takes due account of the necessary confidentiality; in doing so, they have some flexibility in how they structure digital documents, nor is there an obligation to use handwritten signatures.70 To oblige domestic authorities to justify their behaviour, albeit at a high level of abstraction, allows individuals to decide whether to launch legal remedies. The right to be heard guarantees that domestic authorities take the position of the third country national into account. It applies as an integral part of the rights of the defence71 and covers, in accordance with Article 42(2)(a) CFR, any individual measure ‘which would affect him or her adversely’. As a consequence, it is not limited—unlike Article 47 CFR—to scenarios where individual rights in secondary legislation are at stake. The multifaceted judicial output leaves us with mixed messages about the consequences of procedural deficits. In a number of rulings, the Court avoided an outcome in which non-compliance with procedural safeguards resulted in an annulment of the administrative decision.

67 See Case C-604/12 HN EU:C:2014:302, paras 49–51; and Case C-166/13 Mukarubega EU:C:2014:2336, paras 42–45. 68 See ch 11.4.3; and Joined Cases C-225/19 and C-226/19 Minister van Buitenlandse Zaken EU:C:2020:951, paras 44–47; as well as, for refusal of entry, Case C-584/18 Blue Air—Airline Management Solutions EU:C:2020:324, paras 82–86. 69 See Case C-146/14 Mahdi EU:C:2014:1320, paras 41–52. 70 See Case C-159/21 Országos Idegenrendeszeti Főigazgatóság and others EU:C:2022:708, paras 44–59; Case C- 300/11 ZZ EU:C:2013:363 on Union citizenship; and Case C-564/22 Bundesrepublik Deutschland EU:C:2022:951, paras 33–63. 71 See Case C-560/14 M EU:C:2017:101, para 25.

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7.2.4.2 Consequences of procedural deficits Judgments on the right to be heard remind us that fundamental rights can be limited in accordance with Article 52(1) CFR. ‘Balancing’ private and public interests is a defining feature of human rights law. Judges are strict when it comes to personal interviews in asylum proceedings, since secondary legislation reinforces the significance of the right to be heard.72 Absence of an administrative hearing will regularly result in a verdict of illegality, also considering that the statutory prescriptions on interviews in the Asylum Procedures Directive transcend the human right to be heard under Article 43(2)(a) CFR.73 The higher level of protection for asylum was confirmed by judgments on the Return Directive. In the absence of detailed statutory prescriptions, the lack of a hearing does not generally result in the illegality of the administrative decision.74 Academic observers have met these findings with disappointment.75 Yet, the case law can be rationalised by the contents and context of the instruments under analysis. Even in the field of asylum, the right to be heard remains subject to limitations. Judges did not submit judicial proceedings to the same procedural rigidity as the administrative procedure. Domestic judges may deliver their rulings on the basis of the information in the administrative file, without being required to perform a second personal interview or organise a hearing.76 Judges also gave states leeway as to whether the domestic judiciary may substitute the administrative decision with their own. Some countries do not foresee such substitution powers, even in situations where judges conclude that a specific outcome was mandatory. Instead, the file may be referred back to the authorities to take a new decision in light of the findings of the domestic court.77 Judges confirmed that neither the Asylum Procedures Directive nor human rights or unwritten general principles mandated substitution powers on the part of judges.78 From a theoretical perspective, the case law illustrates that the Court of Justice often replicates, in the field of migration, the position it defends—in varying degrees—in other segments on Union law, notably with regard to the administrative dimension of competition cases.79 Experts in migration law are well-advised, therefore, to relate their analysis to the administrative dimension to Union law at an intermediate level of abstraction, so to better understand the outcome but also to identify new arguments. In any case, they should beware of the simple transfer of domestic practices to the EU level. Union law often develops a solution of its own, combining the tradition of several domestic legal orders. Judgments on the consequences of procedural deficits are a good example. While common law countries 72 See Case C-517/17 Addis EU:C:2020:579, paras 64–71. 73 See M (n 71) para 54. 74 See Mukarubega (n 67) paras 46–53; and Case C-383/13 PPU G and R EU:C:2013:533, paras 32–40; see also Boudjlida (n 66) paras 55–56; and Valeria Ilareva, ‘The Right to be Heard. The Underestimated Condition for Effective Returns and Human Rights Consideration’ in Madalina Moraru and others (eds), Law and Judicial Dialogue on the Return of Irregular Migrants from the European Union (Hart Publishing 2020) 351. 75 See Piotr Sadowski, ‘A Safe Harbour or a Sinking Ship? On the Protection of Fundamental Rights of Asylum Seekers in Recent CJEU Judgments’ (2019) 11 EJLS 29, 52–53; and Philippe De Bruycker and Sergo Mananashvili, ‘Audi alteram partem in Immigration Detention Procedures between the ECJ, the ECtHR and Member States’ (2015) 52 CML Rev 569, 582–87. 76 See Case C-348/16 Sacko EU:C:2017:591, paras 33–40, 45–48. 77 See Marcelle Reneman, ‘Asylum and Article 47 of the Charter’ in Andrea Crescenzi and others (eds), Asylum and the EU Charter of Fundamental Rights (Editoriale Scientifica 2018) 59, 67–71. 78 See Case C-556/17 Torubarov EU:C:2019:626, paras 54–59; and Case C-585/16 Alheto EU:C:2018:584, paras 145–48. 79 See Tridimas (n 34) ch 8.

Transnational Effects of Horizontal Cooperation 187 tend to highlight the self-supporting character of procedural guarantees, civil law jurisdictions emphasise their supportive function and do not, as a result, generally sanction non- compliance autonomously.80

7.3 Transnational Effects of Horizontal Cooperation Widespread focus on the vertical dimension of EU migration law, regarding agency involvement or the limits of national procedural autonomy, should not detract from the significance of horizontal cooperation between the Member States. In the area of freedom, security, and justice, administrative decisions taken by one country often have transnational legal effects. A variety of different scenarios gives rise to a common question: whether, and if so under which conditions, may other Member States, or individuals living there, challenge the legality of a decision delivered by a first Member State? The answer to that question depends on the legislative instrument applicable, but the underlying challenge is the same. EU institutions, including the Court, have to strike a balance between countervailing claims to legal certainty and the rule of law. As a matter of principle, justice and home affairs rely—like the single market—on loyal cooperation. Member States have to respect decisions made elsewhere under usual circumstances. The idea is firmly embedded in the collective memory of the European project with its preference for ‘mutual trust’ and ‘mutual recognition’—two concepts that do not embody an overarching general principle.81 Instructive examples beyond the domain of migration are judgments on the mutual recognition of drivers’ licences or regarding sanctions for transnational television broadcasts.82 They illustrate that the conditions and limits of transnational legal effects ultimately depend on the rules in question. What is valid for driving licences, need not be appropriate for human rights limits to Dublin transfers, which will feature in Chapter 13.3.6 on asylum. Comments hereafter concentrate on transnational effects as a matter of administrative law, not human rights standards. In EU migration law, we can distinguish at least three scenarios. Distinct rules exist for visas and databases where secondary legislation authorises retroactive administrative control (7.3.1). Some instruments establish inter-state consultation requirements, without stating what the legal effects of a communication failure shall be (7.3.2). The example of ‘golden visas’ indicates that general principles may be relied upon in the absence of secondary legislation (7.3.3).

80 See Saša Beljin, ‘Rights in EU Law’ in Sacha Prechal and Bert van Roermund (eds), The Coherence of EU Law (OUP 2008) 91, 100–105; and Michael Fehling, ‘Eigenwert des Verfahrens im Verwaltungsrecht’ (2011) 70 Veröffentlichungen der Vereinigung Deutscher Staatsrechtslehrer 278. 81 See Maiani and Mogliorini (n 21) 7–44; Schwarz (n 2) chs 4–5; and Stephen Weatherill, ‘Why there is No “Principle of Mutual Recognition” in EU Law’ in Kai Purnhagen and Peter Rott (eds), Varieties of European Economic Law and Regulation (Springer 2014) 401. 82 See Joined Cases C-329/06 and C-343/06 Wiedemann and Funk EU:C:2008:366; and Joined Cases C-244/10 and C-245/10 Mesopotamia Broadcast EU:C:2011:607.

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7.3.1 Visas and databases: rules in secondary legislation Schengen visas are an evident example of transnational effects: they are issued by the consulate of one country and authorise entry and stay in the Schengen area as a whole. Article 34 Visa Code Regulation (EC) No 810/2009 states that a visa shall be revoked ex nunc or annulled ex tunc where there are serious grounds for believing that the conditions for issuing the visa are no longer met or had never been fulfilled, notably as a result of fraud. Revocation or annulment ‘shall’ usually be decided by the Member State which had issued the visa, although other countries ‘may’ do so as well, as highlighted by the Court in a complex case concerning criminal proceedings for illegal entry.83 Neither the legislation nor the judgment required the second Member State to consult the country that had issued the visa beforehand, instead requiring retroactive information. States shall be able to respond forcefully to alleged fraudulent behaviour, subject to legal remedies without suspensive effects.84 Schengen visas have far-reaching transnational effects, but Member States are in a strong position in terms of annulment and revocation. Inaccurate entries in the Schengen Information System (SIS) and the Visa Information System (VIS) can be a nuisance for third country nationals. It is important, therefore, that they are able to challenge wrong data. On paper, the SIS Regulation gives individuals much influence: they can access and, if need be, ask for the correction or deletion of personal data in the country of their choice. However, the authorities where the complaint was submitted cannot decide autonomously, as in the case of Schengen visas; rather, they shall consult with the country which had entered the information and whose position they are bound to follow.85 In essence, the second Member State serves as a ‘front office’ transmitting the complaint to the country that had issued the alert. In case of legal remedies, inter-state communication unfolds before the domestic court where the complaint had been filed; the issuing state undertakes to enforce the judgment, even if it was delivered abroad.86 The VIS Regulation differs insofar as individuals shall always address the state that entered the data; requests made elsewhere are forwarded to the country responsible.87 The solution defended by the legislature with regard to databases contrasts with a judgment on visa procedures. A Dutch consulate had rejected an application for a Schengen visa, based on information by Hungary and Germany that the applicant posed a public security threat.88 Judges in Luxembourg held that the Dutch court should limit oversight to formal aspects of the prior consultation procedure, while the substantive legality of the public policy alert had to be challenged in the country that had issued the alert.89 If several states did so, the third country national apparently has to file several lawsuits. This finding, on the part of the Court, was perplexing, since the Visa Code Regulation states explicitly that appeals ‘shall be conducted against the Member State that has taken the final decision’90. One might possibly rationalise the judgment through the specificities of public policy threats, which are often based on confidential information. Having said this, the ruling should be

83 84 85 86 87 88 89 90

See Case C-83/12 PPU Minh Khao Vo EU:C:2012:202, paras 38–40. See Visa Code Regulation (EC) No 810/2009, art 34(7). See SIS Border Checks Regulation (EU) 2018/1861, art 53(2). ibid art 54(2); in line with the former SIS II Regulation (EC) No 1987/2006, art 43. See VIS Regulation (EC) No 767/2008, arts 38–40. See Visa Code Regulation (EC) No 810/2009, arts 22, 32(1)(a)(vi). See Joined Cases C-225/19 and C-226/19 Minister van Buitenlandse Zaken (n 68) paras 50–52. Visa Code Regulation (EC) No 810/2009, art 32(3).

Transnational Effects of Horizontal Cooperation 189 criticised for contradicting supranational legislation and for ignoring what the Court had said on other scenarios of transnational legal effects. Roughly 100 countries are ‘blacklisted’ in Annex I of the Visa List Regulation (EU) 2018/ 1806, meaning that their nationals must have a visa before entering the Schengen area. However, many Member States do not have consulates in all regions, and it is common, therefore, to sign representation arrangements for specific countries. Thus, the Netherlands authorised the Swiss consulate in the Sri Lankan capital of Colombo to process applications for Schengen visas for which the Netherlands would normally be responsible.91 Article 8 Visa Code Regulation, in the version applicable at the time, foresaw two options for such bilateral representation arrangements. The Swiss consulate may act as a front office collecting documents to be forwarded to the Dutch authorities, or it may, alternatively, decide autonomously as a trustee (as it did in Colombo).92 To cut a long story short: the Swiss rejected the application for lack of means of subsistence,93 and the Court found that Swiss— not Dutch—courts were responsible for legal remedies.94 Seizing Swiss courts without any personal relations to the country will usually prove difficult for the applicants. One might possibly have defended a different outcome by arguing that Switzerland took the decision ‘on behalf of ’95 the Netherlands, although such an outcome would sit uncomfortably with the explicit legislative prescription that appeals shall be conducted against the country ‘that has taken the final decision on the application’.96 Complexity is an inevitable side effect of horizontal cooperation. Even so, the legislative provisions and Court judgments leave us with mixed results. There is a noticeable trend towards a ‘unitary model’ of legal remedies. Composite procedures do not translate into a ‘separation model’ that distinguishes neatly between the contributions of each country which individuals have to challenge separately (a solution the Court defended for entry alerts on public security grounds).97 Instead, transnational cooperation takes place behind the curtain, and individuals challenge the final outcome in the country whose authorities took the decision. Domestic courts are responsible for incidentally checking the input of other Member States. That preference for a unitary model holds important lessons for the legal oversight of the input of Frontex and the Asylum Agency in national decision-making, to be analysed in Chapter 8.

7.3.2 Entry bans: failure of inter-state consultation Procedural rules on inter-state consultation are rarely an inspiring read. Nevertheless, they can have profound implications for the rights of third country nationals, as the example of the Dublin III Regulation illustrates. Chapter 6.5.2 explained that the Court interpreted 91 ibid art 5(1)(a), with later amendments. 92 ibid art 8, which was changed by Regulation (EU) 2019/1155 amending the Visa Code [2019] OJ L188/25. 93 ibid art 32(1)(a)(iii). 94 See Case C-680/17 Vethanayagam EU:C:2019:62, paras 58–77, with additional comments on the ‘reliability’ of the Swiss as an associated Schengen country; see also Jean-Yves Carlier and Luc Lebœuf, ‘Droit européen des migrations’ [2020] Journal de droit européen 132, 134. 95 Visa Code Regulation (EC) No 810/2009,, art 8(1)(a), both the original text and the revised version. 96 ibid art 32(3). 97 See also Wolfgang Kahl, ‘Rechts-und Sachkontrolle in grenzüberschreitenden Sachverhalten’ in Josef Isensee and Paul Kirchhof (eds), Handbuch des Staatsrechts. Band XI (3rd edn, CF Müller 2013) § 253.

190 Administrative Dimension the time limits in the Dublin III Regulation to contain directly applicable individual rights, which asylum seekers can rely upon to challenge transfer to another country on formal grounds. A comparison with the case law on the European Arrest Warrant illustrates that a different outcome would have been possible: the expiry of time limits does not relieve states from carrying out the execution procedure.98 This leaves us with the question about the implications of the provisions on inter-state consultation in other migration law instruments. The issue is particularly relevant for entry bans. Chapter 16.4 on return will demonstrate that they oblige domestic authorities from across the Schengen area to refrain from allowing entry or issuing residence permits within the territory, thus effectively excluding the legalisation of irregular stay. In order to avoid conflicting decisions, an administrative authority that considers granting a residence permit shall consult with the country that had entered an alert into the SIS—vice versa if an entry ban is entered for someone holding a residence permit elsewhere. In these consultations, states shall coordinate their views to ensure that third country nationals are either subject to an entry ban or receive a residence permit.99 That is a reasonable solution, but the consultation requirement begs the question of what happens in cases of silence, when a country does not comply with the strict time limits for inter-state consultation under the new SIS Regulations. Intuitively, one might say that silence should be held against the uncooperative country, and this is exactly what the SIS Regulation stipulates in cases of regularisation whenever one country wants to override an entry ban. Silence does not prevent granting a residence permit.100 Does the same apply in the reverse scenario if, for example, a Nigerian national with a Spanish residence permit is to be banned from Finland after drug-related criminal convictions; provided the Spanish authorities do not respond to the consultation request by the Finnish authorities? The Court answered that question to the negative on the basis of Article 25(2) Convention Implementing the Schengen Agreement, which had stated expressly that silence should not be held against the third country national.101 However, this provision does not feature in Articles 38–30 SIS Border Checks Regulation (EU) 2018/1861 any longer. It is not self- evident, therefore, that the same conclusion would be confirmed in follow-up judgments, which might alternatively interpret silence as implicit consent. Irrespective of the answer judges would give in follow-up judgments, the case allows us to highlight an important element. The Court held, in this specific constellation at least, that transnational consultation requirements are directly applicable.102 That meant that the Nigerian national could rely on the communication failure before Finnish courts to object the return decision. Direct applicability had tangible benefits for individuals—a finding that cannot necessarily be generalised. We have to assess on a case-by-case basis whether an article embraces an individual right or not, as illustrated in Chapter 6.5 on the doctrinal foundations. By way of example, the Irish Supreme Court came to a negative conclusion for the Dublin III Regulation.103 For our purposes, the example of entry bans and the direct

98 See Case C-237/15 PPU Lanigan EU:C:2015:474, paras 34–42. 99 See SIS Border Checks Regulation (EU) 2018/1861, arts 27–30; SIS Return Regulation (EU) 2018/1860, arts 9–12; and Case C-193/19 Migrationsverket EU:C:2021:168, paras 30–37. 100 SIS Border Checks Regulation (EU) 2018/1861, art 27(c). 101 See Case C-240/17 E EU:C:2018:8, paras 38, 53–54. 102 ibid paras 57–59. 103 See Niovi Vavoula, ‘Information Sharing in the Dublin System’ (2021) 22 GLJ 391, 409–13.

Money as a Means of Governance 191 invocability of inter-state coordination demonstrates that seemingly dull procedural questions can have significant repercussions.

7.3.3 Intra-EU mobility: ‘golden visas’ as an abusive practice? In situations of intra-EU mobility the legislature thought it to be sufficient to lay down grounds for rejecting mobility, instead of dealing with transnational effects explicitly, like in the case of visas and databases. Member States where someone intends to relocate can apply these conditions, to be presented in Chapter 14.4.5 on legal migration, but they cannot usually check whether another country complied with Union law when delivering a residence permit that gives rise to mobility. What if national authorities willingly apply secondary legislation negligently? Chapter 15.7.3 on settlement will explain that national ‘golden visa’ and ‘golden passport’ schemes raise this question, if rich foreigners effectively purchase residence statuses. To be sure, mobility rights under the Long-Term Residents Directive 2003/109/EC come with strings attached: they require five years of legal and continuous residence. Few Chinese industrialists may want to live that long in Malta or Cyprus. That is why the Commission worries that Member States might apply the residence criterion negligently and proposes introducing a monitoring system at the national level to ensure compliance.104 Can other Member States refuse mobility on the basis of golden visas in the absence of such mechanism? The Long-Term Residents Directive is silent, apart from an abstract reference to mutual trust.105 This silence need not necessarily indicate that other Member States are generally bound to respect administrative decisions made elsewhere. That obligation may possibly be overcome under recourse to the general principle to prevent abuse, which will be discussed in Chapter 10.8 on overarching features. That is precisely what the Court did in the domain of social security coordination to give Member States some leeway, despite an explicit rule stating that certificates issued elsewhere must generally be recognised.106 This line of reasoning can possibly be applied to migration law, especially when the legislative framework for inter-state cooperation is loosely knit.

7.4 Money as a Means of Governance The European model of executive federalism entails that the costs of indirect implementation lie with the Member States. By way of example, the German taxpayer financed almost €10 billion for the reception of one million asylum applicants during 2015/16; the annual budget of the federal police, who deal with border controls, stands close to €5 billion. These

104 See Commission, ‘Report on Investor Citizenship and Residence Schemes in the EU’ COM(2019) 12 final, 10. 105 See Long-Term Residents Directive 2003/109/EC, recital 17; and Johannes Eichenhofer, ‘Das Recht auf Daueraufenthalt’ in Ferdinand Wollenschläger (ed), Enzyklopädie Europarecht. Band X (2nd edn, Nomos 2021) § 25 MN 35. 106 See Case C-359/16 Altun and others EU:C:2018:63, paras 46– 49; and Case C- 370/ 17 CRPNPAC EU:C:2020:260, paras 48–86.

192 Administrative Dimension exemplary figures illustrate that the indirect implementation of EU migration law can entail substantial costs at the national level (not only for Germany, of course). They also put into perspective the remarkable increase of the EU’s justice and home affairs budget. Funds for migration are scheduled to increase by almost 80 per cent during the current Multiannual Financial Framework (MFF) to reach €4.5 billion in 2027—not much less than the annual budget of the German federal police. EU funds can add value if they are more than a simple contribution to national budgets. They may ideally support forward-thinking investment in new technologies, human rights compliance, transnational cooperation, pilot projects for migrant integration, and inter-state solidarity. In doing so, EU funding may trigger innovation and change through investment in other domains than salaries for civil servants, which are often the biggest expenditure at the national level. That is precisely what the institutions have tried to do over the past twenty years—mirroring experiences with other policy areas. Not surprisingly, events of 2015/16 resulted in a substantial increase and readjustment of priorities. The situation at the external borders became the new top priority. This emphasis was an end in itself and promoted the solidarity with ‘frontline’ Member States, echoing the reference to ‘financial implications’ in Article 80 TFEU. To get a quick overview of justice and home affairs spending is comparatively easy, on the basis of the spending ceiling for continuous seven year periods. Negotiations on the MFF 2021–27 were characterised by the usual inter-state bargaining on the size of the overall budget, spending priorities, and national allotments. The final compromise required unanimity in the Council and the consent of the Parliament, which managed to negotiate a financial top-up for border management and Frontex, after the European Council had reduced—by more than 25 per cent—the amount for justice and home affairs in comparison to the Commission Proposal.107 On the basis of the MFF, the Council and the Parliament will agree on the annual budgets, for which the degree of flexibility is limited, since the legislative instruments for specific EU funds foresee distinct allocation criteria agreed upon in advance as an integral part of the overall compromise package. It is in the nature of such negotiations that governments ensure that they get a substantial piece of the ‘cake’. In doing so, they will have regard to the budget as a whole. Member States may, for instance, agree to receive less money for home affairs in return for higher spending on agriculture. Migration-related funding was concentrated under a single budget heading on ‘migration and border management’ on the occasion of the MFF 2021–27. Additional funds can be found in the headings for external relations and social cohesion. While the Asylum, Migration, and Integration Fund (AMIF) covers short-term needs upon arrival, the European Regional Development Fund and the European Social Fund+support migrant integration more generally.108 Such mainstreaming suits the cross-sectional character of integration policies, discussed in Chapter 15.5, provided that states actually use part of the money for migration-related projects.

107 See TFEU, arts 311 and 312; Commission, ‘Communication: A Modern Budget for a Union that Protects, Empowers and Defends’ COM(2018) 321 final, 14–15; European Council, ‘Conclusions’ (EUCO 10/20, 21 July 2020) Nos 101–08; and ‘EU’s Next Long-Term Budget & NextGenerationEU: Key Facts and Figures’ (Commission Factsheet, 11 November 2020). 108 Migrant integration— both short- term and long- term— had been covered primarily by the Asylum, Migration and Integration Fund (AMIF) and the European Integration Fund (EIF) under the MFF 2007–13 and the MFF 2014–20.

Money as a Means of Governance 193 Since 2015 the institutions have had recourse to the Civil Protection Mechanism, humanitarian aid funding, and a flexibility reserve to make extra funds available to support states like Greece.109 By 2020, almost €3 billion has been granted to the Greek government.110 In response to the war of aggression against Ukraine, Member States were authorised to channel several billion euros for regional development and migration which had not been spent under the previous MFF into refugee protection and integration.111 Additional resources were made available under the Civil Protection Mechanism. In addition to short-term needs, migration-related projects can be financed from the research budget for Horizon Europe within the programme line on ‘civil security for society’.112 Research may support, for instance, integrated surveillance and security technology used in border management, as mentioned in the chapters on agencies and databases in this volume. The external dimension is more difficult to grasp. It covers spending within the regular budget as well as special instruments like the Facility for Refugees in Turkey and the EU Emergency Trust Fund (EUTF) for Africa.113 Financial contributions to the Facility for Refugees in Turkey came from the EU budget, together with direct payments of the Member States, who contributed two-thirds of the overall amount of €6 billion for the period from 2016 to 2020.114 EUTF for Africa was set up after a summit in La Valetta in December 2015 and similarly rested on a complex legal construct with migration management as one of the priorities, which received substantial funds.115 While the bulk of the resources came from the EU budget, the Member States contributed additional money. Considerable amounts were channelled into neighbouring countries like Libya, Morocco, and Mali in the framework of the EUTF for Africa, which can be difficult to track for external observers. Similar extra-budgetary arrangements will be used in the future, for instance in the form of the Ukraine Solidarity Trust Fund for reconstruction. From 2022 onwards, the former trust funds have been integrated into the Neighbourhood, Development and International Cooperation Instrument (NDICI), which embraces more than €70 billion and describes migration as a new priority area; 10 per cent of the funds have been earmarked for migration-related projects.116 A separate Instrument for Pre-Accession Assistance (IPA III) finances projects in the Western Balkans and other accession candidates.117 Examples of what kind of international projects are funded can be found in Chapter 18 on the external dimension. Readers should recognise that it requires 109 See Zsolt Darvas, EU Funds for Migration, Asylum and Integration Policies (Study for the European Parliament, PE 603.828, 11 April 2018) 14–16, 47–52. 110 See ‘EU Financial Support to Greece’ (Commission Factsheet, November 2020). 111 See Regulation (EU) 2022/562 as regards Cohesion’s Action for Refugees in Europe (CARE) [2022] OJ L109/ 1; and Commission, ‘Communication: Temporary protection for those fleeing Russia’s war of aggression against Ukraine’ COM(2023) 140 final, 19–21. 112 See Regulation (EU) 2021/695 establishing Horizon Europe [2021] OJ L170/1, Annex IV, arts 4(1)(b)(iii), 12(2)(b)(iii), No 13. 113 See Leonhard den Hertog, ‘Money Talks: Mapping the Funding for EU External Migration Policy’ (CEPS Papers in Liberty and Security in Europe No 95, 2016); the European Development Fund (EDF) was integrated into the general budget from 2021 onwards. 114 See the contents of and the predecessor instruments to Commission Decision of 14 March 2018 on the Facility for Refugees in Turkey [2018] OJ C106/5; and the ‘Updated Common Understanding establishing a Governance and Conditionality Framework for the Refugee Facility for Turkey’ (Council doc 11329/18, 20 July 2018). 115 For a snapshot see Commission, ‘Progress Report on the Implementation of the European Agenda on Migration’ COM(2019) 481 final, 9–17. 116 See NDICI Regulation (EU) 2021/947, Annex III, recitals 50–51, arts 3(2)(c)(iv), 6. 117 See Regulation (EU) 2021/1529 establishing the Instrument for Pre-Accession assistance (IPA III) [2021] OJ L330/1, arts 3(2)(a), (3)(b), 4.

194 Administrative Dimension an advanced knowledge of budgetary rules and practice to identify how much is being spent for specific projects.118 The budget heading on ‘migration and border management’ under the MFF 2021–27 comprises the budgets of the migration agencies, Frontex and EUAA, as well as two distinct instruments called the Asylum, Migration, and Integration Fund (AMIF) and the Instrument for Border Management and Visa (BMVI). The latter vehicle is by far the biggest element of the Integrated Border Management Fund (IBMF), which covers customs cooperation as well. The AMIF and the BMVI have been allocated almost €10 billion and €7.3 billion respectively for the 2021–27 period. Funding is scheduled to increase annually. In 2027, the ceiling will reach almost €2 billion for the AMIF and €1.3 billion for the IMBF, on top of no less than €1.5 billion for the agencies, notably Frontex. In line with previous comments, the small print will be determined on an annual basis during budget negotiations among the institutions, which will translate the MFF baselines into funding for specific projects in accordance with the regulations on the funds. Spending targets for justice and home affairs may be modest in comparison to domestic budgets, but the growth is astonishing, nonetheless. When the former European Refugee Fund and the ARGO programme on administrative cooperation were first set up in the early 2000s, they covered €50 million for refugees and €5 million for administrative cooperation per annum.119 This translates into a staggering overall increase of the annual EU budget for migration of no less than 5,600 per cent between 2005 and 2027. This highly impressive surge started with four distinct funds for the period from 2007 to 2013 (altogether, €4 billion).120 Modest growth had initially been foreseen for two funds during 2014 and 2020 (jointly €6 billion),121 which gathered momentum through budgetary reallocation in the aftermath of 2015 (altogether, more than €11 billion).122 The legislative instruments establishing the funds anticipate the allocation between different envelopes and sub-programmes based on complex distribution keys of multiple variables.123 To do so is standard practice in budgetary negotiations. Nevertheless, EU institutions have started reserving more funds for flexible distribution as a lesson learned from the policy crisis of 2015/16. Part of the funds are foreseen for ‘thematic facilities’ instead of national portions. They are often administered by the Commission, while other resources

118 See also Thomas Spijkerboer and Elies Steyger, ‘European External Migration Funds and Public Procurement Law’ (2019) 4 European Papers 493. 119 See Council Decision 2000/596/EC establishing a European Refugee Fund [2000] OJ L252/12, art 2(1); Council Decision 2004/904/EG establishing the European Refugee Fund for the period 2005 to 2010 [2004] OJ L381/52, art 2(1); and Council Decision 2002/463/EC adopting an ARGO programme [2002] OJ L161/11, art 11(1). 120 The sum of €628 million was allocated under Decision 2007/573/EC establishing the European Refugee Fund [2007] OJ L144/1, art 12(1); €1.82 billion was foreseen by Decision 2007/574/EC establishing the External Borders Fund [2007] OJ L144/22, art 13(1); €€676 million was the financial foundation of Decision 2007/575/EC establishing the European Return Fund [2007] OJ L144/45, art 13(1); the sum of €825 million was mentioned in Council Decision 2007/435/EC establishing the European Fund for the Integration of Third-Country Nationals [2007] OJ L168/18, art 13(1). 121 €2.76 billion had originally been foreseen by Regulation (EU) No 515/2014 establishing, art 5(1), as part of the Internal Security Fund, the instrument for financial support for external borders and visas [2014] OJ L150/143; €3.137 billion was to be allocated under Regulation (EU) No 516/2014 establishing the Asylum, Migration and Integration Fund [2014] OJ L150/168, art 14(1). 122 See Darvas (n 109) 15. 123 See especially AMIF Regulation (EU) 2021/1147, art 10, Annex I; and BMVI Regulation (EU) 2021/1148, art 7, Annex I; for criticism see UNHCR/ECRE, ‘The Way Forward: A Reflection Paper on the New Proposals for EU Funds on Asylum, Migration and Integration 2021–2027’ (November 2018).

Summary 195 are usually handed out under shared management. Member States allocate them to specific projects on the basis of the common rulebook.124 In light of unfortunate experiences with fraud and mismanagement, the EU has put in place multiple safeguards to ensure compliance, including cumbersome reporting requirements. Most projects are subject to a co-financing rate of 25 per cent to prevent funding for the proverbial white elephants which lack local ownership and are not sustainable. Co- financing requirements can be loosened or renounced for specific projects, notably emergency assistance.125 Anyone trying to find the way through the EU’s budgetary rulebook should have the stamina to digest highly technical rules, which, nonetheless, are of great practical importance.

7.5 Summary Inspection of the administrative dimension highlights the bottom-up perspective, whose significance experts in EU law occasionally underestimate. The administrative dimension is not limited to the agencies, discussed in the next chapter, since the overwhelming majority of decisions is taken by domestic authorities without the involvement of any supranational actor. This is in line with the European tradition of executive federalism: Member States implement supranational legislation. Our comments revealed that seemingly ambitious concepts like the ‘area’ of freedom, security, and justice or a common asylum ‘system’ depend on national contributions. At the same time, administrative cooperation transcends the simple application of supranational rules by domestic authorities. Multiple actors serve as nodes in a network with multiple horizontal and vertical linkages. Articles 71–74 TFEU are testament to the significance of inter-state cooperation, which ranges from databases over operational cooperation to composite procedures. Secondary legislation often embraces procedural rules, notably on asylum. Yet, even complex rules leave states some leeway as to how to organise administrative procedures or court proceedings. Such leeway does not, however, mean unfettered freedom. The Court of Justice has recourse to the unwritten limits of procedural autonomy to exercise basic oversight of domestic practices. An in-depth analysis of the case law on migration demonstrated that the principle of effectiveness has gained relevance, for instance with regard to time limits. Effectiveness is increasingly supplanted by the fundamental right to an effective remedy in Article 47 CFR, which judges interpret in line with ECtHR case law, while adding additional guarantees. A specificity of Union law is the right to good administration under Article 41 CFR in relation to which judges are strict on matters concerning asylum, often on the basis of detailed secondary legislation; by contrast, assorted judgments on return illustrate that the Court accentuates countervailing public policy objectives that may justify limitations on the exercise of human rights. Transnational legal effects of administrative decisions receive little attention. They are governed by rules in secondary legislation in the case databases and visa applications, for instance when the domestic authorities or courts of one country decide on the legality of alerts entered into the SIS by another Member State. Judgments demonstrate that the Court

124 125

See generally Hofmann, Rowe, and Türk (n 14) ch 10. See AMIF Regulation (EU) 2021/1147, art 15; and BMVI Regulation (EU) 2021/1148, art 12.

196 Administrative Dimension favours a unitary approach, supporting the joint assessment of the legality of the different contributions, even though the complexity of both the legislation and case law preclude clear-cut conclusions. The same applies to the legal consequences of transnational communication failures on entry bans, which exemplify the importance of highly technical procedural rules for the legal status of migrants. Intra-European mobility demonstrated that even seemingly straightforward rules on the recognition of administrative decisions could possibly be subject to limitations when a first Member State issues a ‘golden visa’ or long-term residence permit in disregard of EU law.

8

Agencies (Frontex and Asylum Agency) While the brunt of the responsibilities for implementing migration law rests with domestic authorities, the supranational level increasingly contributes administrative resources of its own. Frontex and the Asylum Agency have witnessed exponential growth in terms of stronger mandates, operational capacities, and practical reach, thus raising formidable challenges of political accountability and legal oversight. To find solutions can be challenging for the simple reason that the agencies transcend traditional models of EU integration by means of legislative harmonisation and horizontal inter-state cooperation. Frontex and the Asylum Agency are building up human and technical resources of their own, to be exercised together with domestic authorities. The relative weight of the supranational actors can be difficult to disentangle. To do so requires a high degree of practical expertise in everyday practices on the ground. Agencies are not simple instruments of top-down enforcement. Their organisational set-up, operational powers, and practical functioning transcends simple trajectories of centralisation. The migration agencies mirror the characteristics of the European administrative space as a conglomerate of diverse actors at multiple levels, as described in Chapter 7. Frontex and today’s Asylum Agency have traditionally served as a clearing house for inter- state cooperation by means of seconded national personnel, which will be complemented by a standing corps of supranational officers both agencies have started hiring. These impressive operational capacities and involvement in national decision-making raise administrative cooperation to a new level, to support Member States under pressure. At the same time, the role of the agencies remains intricately connected to the model of decentralised implementation. We shall see that this composite character is the main reason why a satisfactory answer has not yet been found for how to guarantee effective legal oversight by courts or through other accountability mechanisms. In political and academic debates, Frontex and the Asylum Agency often assume a prominent position. Such prominence is fully justified, provided that we do not mistake stronger agencies as straightforward centralisation. Unequivocal federalisation is supported by neither the policy debate (8.1) nor the EU Treaties (8.2). For many years, the agencies had comparatively meagre operational powers, until the crisis of asylum policy during 2015/16 led to several upgrades of the mandates, capacities, and practical tasks. Frontex and today’s Asylum Agency turned into powerful actors whose precise role on the ground is notoriously difficult to grasp. While the Frontex Regulation has been amended several times (8.3), the official transformation of the former Asylum Support Office into the Asylum Agency was delayed. The resulting mismatch between statutory powers and operational activities was overcome when the new mandate came into force in 2022 (8.4). The composite character of administrative decision-making complicates the design of accountability mechanisms at the domestic and supranational levels (8.5).

European Migration Law. Daniel Thym, Oxford University Press. © Daniel Thym 2023. DOI: 10.1093/oso/9780192894274.003.0009

198 Agencies (Frontex and Asylum Agency)

8.1 Theory and Policy Design Political support for stronger agencies is a recurrent feature in the policy debate in Brussels and in national capitals. This political support was essential for the continuous promotion of both Frontex and the Asylum Agency, which, nevertheless, should not be equated with the simple centralisation of decision-making (8.1.1). A reminder of the comparatively modest motivation behind the creation of the border agency and the former Asylum Office (8.1.2) illustrates how impressive the increase in tasks and functions has been in recent years (8.1.3). Both Frontex and the Asylum Agency are witnessing a period of exponential growth, which accelerated after the asylum policy crisis of 2015/16 and raises challenges of managerial adaptation and human rights compliance (8.1.4).

8.1.1 Elusive vision of administrative centralisation In the English language, the term ‘federal’ is usually associated with centralisation. This mirrors the American tradition where federal legislation is being applied by federal authorities and courts. In the United States, the regions will not usually apply federal laws. By contrast, the EU replicates the German model where the term ‘federal’ can equally accentuate regional differences. Institutions at the central level concentrate on law-making and the creation of apex courts for uniform interpretation, whereas administrative implementation and judicial oversight by courts of first and second instance are left to the regions. Regional authorities and courts must apply common rules, and the central institutions will establish administrative offices throughout the territory in exceptional cases only. The EU follows this model of ‘cooperative’ or ‘executive’ federalism.1 Political actors and academic observers occasionally call for an act of liberation from the complexities and weaknesses of decentralised implementation. Agencies have always enthused abstract aspirations of administrative ‘centralisation’ and ‘federalisation’, especially among those who are generally enthusiastic about the European project. Administrative capacities at the supranational level are a symbol of further integration, as indicated by ‘Europol’ or the ‘European Public Prosecutor’. Their official designation hints at a high level of integration, despite the absence of far-reaching powers. We shall see that the situation is similar for Frontex and the Asylum Agency; powers on the ground often lack behind abstract declarations of intent. The centralisation of asylum decision-making was officially put on the agenda as an option by the Commission in 2016, although this idea was not actively pursued further in the years thereafter.2 Frontex has been a projection sphere for Europhile calls for administrative centralisation ever since the early days of the area of freedom, security, and justice. The abstract vision of a ‘European Border Police’3 came up in the policy debate surrounding the Constitutional Treaty, which paved the way for the introduction of today’s Article 77(2)(d) Treaty on the 1 See Robert Schütze, From Dual to Cooperative Federalism (OUP 2009) chs 1–2. 2 See Commission, ‘Communication: Towards a Reform of the Common European Asylum System and enhancing legal avenues to Europe’ COM(2016) 197 final, 8–9; see also Harald Dörig and Christine Langenfeld, ‘Vollharmonisierung des Flüchtlingsrechts in Europa’ [2016] Neue Juristische Wochenschrift 1. 3 See ‘Feasibility Study for the Setting up of a European Border Police’ (Final Report, 30 May 2002) https://cmr. jur.ru.nl/cmr/docs/61.pdf (accessed 1 March 2023).

Theory and Policy Design 199 Functioning of the European Union (TFEU).4 The related notion of a ‘European Border Corps’ was introduced in the 2010s, as shorthand for different models of administrative integration ranging from mixed administrative settings to the ‘full integration’ of a uniform institution with regional offices and local branches throughout the Union.5 The Commission took up these long-standing reform options during the policy crisis of 2015/16. A stronger mandate for Frontex was adopted within a couple of months during 2016 to signal political determination at a time when the structural weaknesses of EU asylum policy had become apparent. The degree of reform initially hardly justified the grand new name ‘European Border and Coast Guard’ (EBCG), which hints at a high level of centralisation.6 Notwithstanding this initial limitation, the ongoing introduction of supranational administrative capacities is gradually turning Frontex into an executive actor in its own right. Moreover, the official designation is less straightforward than one might think intuitively. The official definition of the EBCG comprises both the supranational agency Frontex and national authorities responsible for border management.7 The ECBG is based, in other words, on a composite structure and does not signal the objective of supranational border guards replacing national officers. We should distinguish the integrated overall structure from the specific powers of the border agency. That is one reason why it is preferable to continue using the acronym ‘Frontex’ (for French frontières extérieures), in line with the practice of the institution itself.8 To do so ensures the retention of a ‘brand name’ critics prefer as well. It also counters the impression that the Warsaw-based agency brings about fully fledged administrative centralisation, as the official title might be read to suggest in an exercise of semantic overstretch. Important reasons as to why the political vision of administrative centralisation is bound to remain a pipe dream are the operational character of EU migration law and the composite structure of the European administrative space described in the previous chapter. Frontex and the Asylum Agency may increase collaboration with domestic authorities and could possibly even take certain decisions themselves. By contrast, it would take years if not decades to organise a truly federal border police or asylum agency deciding individual cases across the Union. Legal oversight would have to be guaranteed by the General Court, or specialised tribunals, possibly through decentralised chambers hearing and deciding about legal remedies at the external borders, as described in Chapter 3.1.3 on the judicial architecture. Such centralised decision-making on literally tens of thousands of individual cases would be tremendously challenging to realise in practice. The EU is compelled, therefore, to continue the precarious and complex path of a composite administrative setting involving domestic authorities and supranational agencies.

4 See Daniel Thym, ‘Legal Framework for Entry and Border Controls’ in Daniel Thym and Kay Hailbronner (eds), EU Immigration and Asylum Law. Article-by-Article Commentary (3rd edn, CH Beck/Hart Publishing/ Nomos 2022) MN 19–21. 5 See Unisys, ‘Study on the Feasibility of the Creation of a European System of Border Guards to Control the External Borders of the Union’ (16 July 2014) 21–38. 6 On the initial mismatch see Philippe De Bruycker, ‘The European Border and Coast Guard: A New Model Built on an Old Logic’ (2016) 1 European Papers 559. 7 See Frontex Regulation (EU) 2019/1896, art 4. 8 ibid recital 3 mentions the informal name.

200 Agencies (Frontex and Asylum Agency)

8.1.2 The choice for Frontex and the Asylum Office Articles 71–74 TFEU bear witness of how important transnational operational cooperation is for justice and home affairs. Inter-state coordination initially took place in the framework of the existing legislation, inter-state cooperation, and financial support.9 These activities prepared the ground for Frontex and the former European Asylum Support Office (EASO). Their creation was an integral part of the ‘agencification’ of administrative law, beyond the earlier focus on indirect implementation and horizontal cooperation.10 Europol was established in 1998 as the first justice and home affairs agency, Frontex began its work in 2005, and EASO followed in 2010. The decentralised location reiterates the focus on transnational coordination: Europol has its seat in The Hague, Frontex in Warsaw, and the Asylum Agency in Valletta. There were various reasons for the creation of the agencies. To start with, they were symbols of European integration and signalled, to sceptical public opinion, that the EU institutions were determined to counter practical deficits.11 Critics and supporters mutually stabilised the impression that Frontex, in particular, was a powerful actor, notwithstanding the initial mismatch between the ambitious designation and the reality of meagre operational powers. Over the years, however, the mandate, technical infrastructure, and operational tasks saw unprecedented growth, thus turning Frontex and the Asylum Agency into veritable operational powerhouses and fascinating objects of academic study and political scrutiny. The case for Frontex had always been strong. External border controls are carried out in the collective interest.12 Frontex was a potential solution to the ‘Schengen dilemma’ of mutual dependency, with its built-in risk of reciprocal accusations: inbound Member States lament the negligent control practices of outbound states, which, by contrast, complain about a solidarity deficit in the face of a common task: ‘efficient monitoring of the crossing of external borders’.13 Germany was among the first to call for a supranational border police force as early as 1989 to give governments in the middle of the continent indirect control over the continent’s external borders.14 Italy and other countries at the external borders supported the project in order to share this (costly) task. Italy commissioned the feasibility study which prepared the ground for the institutional design of Frontex, thus confirming our earlier finding that justice and home affairs thrived thanks to governmental support.15 The initial Frontex Regulation (EC) No 2007/2004 was negotiated in less than a year to be adopted immediately after the enlargement of 2004. Again, the motivation of indirect

9 See Ferruccio Pastore, ‘Visas, Borders, Immigration’ in Neil Walker (ed), Europe’s Area of Freedom, Security and Justice (OUP 2004) 89, 120–27. 10 See Eduardo Chiti, ‘Decentralisation and Integration into the Community Administrations’ (2004) 10 ELJ 402. 11 See ch 4.2.3; and Jorrit J Rijpma, ‘Hybrid Agencification in the Area of Freedom, Security and Justice and Its Inherent Tensions’ in Madalina Busuioc and others (eds), The Agency Phenomenon in the European Union (Manchester UP 2012) 84, 90–91. 12 See Schengen Borders Code Regulation (EU) 2016/399, recital 6. 13 TFEU, art 77(1)(b). 14 See Mechthild Baumann, Der deutsche Fingerabdruck (Nomos 2006) 124. 15 See ch 2.1; and ‘Feasibility Study’ (n 3); besides Member States, the Commission supported the initiative and developed it further.

Theory and Policy Design 201 control played a role, since the border agency was meant to assist the transformation of the border police of the new members to perform their future tasks as ‘frontline’ countries.16 The choice for today’s Asylum Agency followed more conventional rationales, mirroring the experience with other agencies. The Asylum ‘Support’ Office was primarily a source of information gathering, technical expertise, training, and quality improvement for the decentralised application of asylum laws.17 EASO was supposed to add value by serving as a catalyst for mutual learning and better quality in the collective interest.18 Stark discrepancies in the recognition rates for different countries of origin, mentioned in Chapter 13.5.1 on asylum, demonstrated that supranational legislation was not enough to achieve administrative convergence on the ground. Moreover, today’s Asylum Agency was an instrument of support and gentle tutoring in the setting up of functioning asylum systems in states in southern and eastern Europe with little or no experience as asylum destination countries. In recent years, the function as an instrument of solidarity with countries at the external borders has gained momentum.

8.1.3 Formal expansion of the mandates The choice for a network approach, instead of administrative centralisation, meant that Frontex initially served as a facilitator of transnational cooperation. Officers from different countries with diverse equipment and administrative traditions cannot simply be instructed to cooperate effectively. Doing so requires the coordination of technical standards, training, contact points, and the like. In the first years, Frontex was very much preoccupied with establishing such network structure, which prepared the ground for operational cooperation and was supported financially by EU funds.19 Information exchange and risk analysis also featured among the tasks, although they played a lesser role than for EASO.20 The original tasks of Frontex were a far cry from the operational powers and budgetary means of today’s border agency. An important legal change came in 2007 when the Council authorised the formation of Rapid Border Intervention Teams, which became known under the misplaced acronym RABITS, to support states facing exceptional pressure.21 They marked the beginning of the dynamic evolution of legal rules and practical standards for joint operations in the years to come.22 A first amended was adopted in 2011 to establish some preliminary powers in the areas of return and international cooperation, together with tentative human rights

16 See Marek Adamczyk, ‘Balancing Openness with Control’ in Joanna Apap (ed), Justice and Home Affairs Law in the EU (Edward Elgar Publishing 2004) 281; and David Fernández Rojo, EU Migration Agencies (Edward Elgar Publishing 2020) 27–30. 17 See generally Merijn Chamon, EU Agencies (OUP 2016) ch 3. 18 See Elspeth Guild, ‘Does the EU Need a European Migration and Protection Agency?’ (2016) 28 IJRL 585; and Rijpma (n 11) 87–90. 19 See ‘Plan for the Management of the External Borders of the Member States’ (Council doc 10019/02, 13 June 2002) 10–19; and Commission, ‘Report on the evaluation and future development of the Frontex Agency’ COM(2008) 67 final, 3–5. 20 See the first Frontex Regulation (EC) No 2007/2004, art 4. 21 See Regulation (EC) No 863/2007 establishing a mechanism for the creation of Rapid Border Intervention Teams [2008] OJ L199/30. 22 For a reliable summary see Fernández Rojo (n 16) 36–38, 49–57, 64–76, 93–96; and Melanie Fink, Frontex and Human Rights (OUP 2018) 35–79.

202 Agencies (Frontex and Asylum Agency) safeguards.23 A major reform came with the revised Frontex Regulation (EU) 2016/1624, which expanded the operational tasks across the board and introduced supervisory powers vis-à-vis the Member States. Today’s Frontex Regulation (EU) 2019/1896 went further, by initiating the formation of a standing corps of supranational officials and by enhancing the powers in the areas of border controls, return, and international cooperation. Human rights supervision was also strengthened. In contrast to Frontex, the former EASO Regulation (EU) No 439/2010 was not changed initially. Nevertheless, the agency saw substantial growth after 2015. The Commission had proposed to transform the Support Office into an Asylum Agency as early as 2016. There was broad agreement that this should be done, and the agency was given substantial more powers de facto, meaning that its operational activities were occasionally out of sync with the legal framework.24 An interinstitutional agreement on the new mandate was partially agreed upon in the trilogue format in 2017 but fell victim to the political stalemate over asylum policy.25 A second and amended proposal was tabled by the Commission one year later. Again, there was a consensus that the agency should be strengthened, although the adoption of the new EUAA Regulation (EU) 2021/2303 was postponed as a result of the ‘package approach’ to asylum reform, presented in Chapter 13.1.5. The revised mandate finally entered into force in January 2022.

8.1.4 Exponential growth in practice Both Frontex and the Asylum Agency are witnessing a period of exponential growth, which accelerated after the asylum policy crisis of 2015/16. The reform measures built upon the initial design and added new functions. A defining feature of both Frontex and the Asylum Agency is the operational character of many activities, in contrast to the regulatory focus of other EU agencies.26 Comments throughout this chapter will highlight how supranational staff and seconded national personnel participate in national decision-making and cooperate with third states. These enhanced operational powers have gathered momentum over the years. Formal expansion of the mandates was supported by a substantial increase in funding. The agencies’ growth was dynamic and at times exponential, thus posing formidable challenges of managerial adaptation and absorption. Basic numbers outline the level of ambition. The budget for Frontex was almost trebled from €140 to €350 million between 2015 and 2020; it is expected to treble again to reach almost €1.4 billion per annum in 2027. EASO’s budget increased exponentially from €15 to more than €100 million until 2020 and is scheduled to stand at roughly €160 million per annum in 2027.27 These figures are 23 See Regulation (EU) No 1168/2011 amending the initial Frontex Regulation (EC) No 2007/2004 [2011] OJ L304/1. 24 For an early description see Sergio Carrera, Leonhard den Hertog, and J Parkin, ‘The Peculiar Nature of EU Home Affairs Agencies in Migration Control’ (2013) 15 EJML 337, 341–44. 25 See ‘State of play and guidance for further work’ (Council doc 10555/17, 27 June 2017). 26 See Thomas Groß, ‘Die Kooperation zwischen europäischen Agenturen und nationalen Behörden’ (2005) 40 Europarecht 54, 56–63; and Fernández Rojo (n 16) ch 1. 27 See ‘Spending Ceiling Multiannual Financial Framework 2021–2027 (in commitments) –Current prices’ https://ec.europa.eu/info/publications/multiannual-financial-framework-2021-2027-commitments_en (accessed 1 March 2023).

Constitutional Foundations 203 impressive but indicate underlying risks as well. Such a rapid build-up requires human resources, managerial skills, and operational expertise that money alone cannot buy.28 Some of the difficulties may be the result of institutional overstretch trying to achieve too much too fast. ‘Hotspots’ on the Greek islands have become an epitome of operational and structural challenges. The lacklustre performance and partial failure of the hotspot approach reiterates the significance of managerial adaptation. To develop prototypes for operational cooperation ‘learning by doing’ in the geographic periphery would never have been easy, but the administrative challenge was multiplied by institutional stress, political pressure, and humanitarian imperatives accompanying the venture. Pushback allegations against national border guards in the context of Frontex operations and accusations of mismanagement reinforce the message that political scrutiny and legal oversight will play an essential role in the years to come.

8.2 Constitutional Foundations The dynamic evolution of operational powers de facto and de jure requires thorough inspection of the constitutional limits for the transfer of further competences, especially with regard to the involvement of Frontex and the Asylum Agency in deciding individual cases (8.2.1). The Meroni doctrine is an important constitutional yardstick for the regulatory powers of EU agencies; however, the rationale behind the case law turns out to be largely irrelevant for agencies with a predominantly operational mandate (8.2.2). Finally, readers are reminded of the status of Ireland, Denmark, and associated Schengen members (8.2.3).

8.2.1 Involvement in administrative decision-making Several provisions in the EU Treaties confirm that the supranational level should concentrate on legislative harmonisation, while decisions affecting individuals are normally taken by domestic authorities.29 Treaty rules for the area of freedom, security, and justice similarly endorse national prerogatives: residence permits and visas shall be ‘issue[d]‌by Member States’ and one country shall be designated to have jurisdiction for considering asylum applications.30 Chapter 7.1.1 explained that neither the idea of a common asylum ‘system’ nor reference to an asylum status ‘valid throughout the Union’ requires the abolition of national asylum systems. Articles 71–74 TFEU explicitly call for effective horizontal cooperation among the Member States, thus presupposing the co-existence of distinct national administrations. Such constitutional preference for indirect implementation need not, however, exclude a greater role of the agencies. To start with, the Court interprets the term ‘measure’, used in Articles 77(2), 78(2), and 79(2) TFEU, to cover the creation of agencies. It even allows for the conferral of

28 For a snapshot see Frontex, ‘State of Play of the Implementation of the EBCG 2.0 Regulation in View of Current Challenges’ (Council doc 7607/20, 28 April 2020). 29 See TFEU, art 291; and TEU, arts 4(2), 5(1), 19(1)(2). 30 See TFEU, arts 79(2)(a) and 78(2)(e).

204 Agencies (Frontex and Asylum Agency) administrative decision-making powers to supranational agents, at least when states do not fulfil certain functions in a satisfactory manner.31 Article 80 TFEU supports such an interpretation in so far as the activities of the agencies contribute to inter-state solidarity. Recourse to Articles 77–80 TFEU has the advantage that the ordinary legislative procedure applies; there is no need to activate Article 74 TFEU as an additional legal basis, mirroring the example of the first Frontex Regulation (EC) No 2007/2004 and the former EASO Regulation (EU) No 439/2010. To recognise that the EU Treaties authorise the creation of the migration agencies does not, however, end our inquiry. When considering the detail, we have to distinguish between the legal bases for border controls and asylum. With regard to the former, Article 77(2)(d) TFEU authorises ‘the gradual establishment of an integrated management system for external borders’. This open-ended formulation takes up the idea of ‘integrated border management’, which had been discussed widely in the early 2000s. The precise meaning of integrated border management fluctuated between structural cooperation across policy areas (eg security, migration, customs) and institutional measures.32 One step further, the drafting history of Article 77(2)(d) TFEU confirms that the provision concerns institutional cooperation revolving around the border agency Frontex.33 The ambitious reference to ‘any measure necessary’ does not contain a precise vision but signals a certain flexibility. It was the desire of the European Convention to lay the foundations for the progressive development of Frontex, without stating clearly what this might entail. Against this background, we may conclude that legislation adopted on the basis of Article 77(2)(d) TFEU may move beyond the original policy design. The wording and drafting history, with its explicit reference to Frontex, argue against a direct comparison with the legal bases for Europol and Eurojust.34 Precise limits are difficult to draw in the abstract, but it seems to me that a realistic solution would be to recognise that Frontex can be given autonomous decision-making powers on selected subject matters or with regard to specific situations, while a genuine federal border guard substituting national units would require Treaty change.35 Below that threshold, there is room for further integration transcending the status quo. By contrast, the Asylum Agency does not rest on an authorisation in the Treaties. Its legal basis is the abstract call for ‘measures’ on common procedures, asylum jurisdiction, and reception conditions in Article 78(2)(d)–(f) TFEU, possibly read in conjunction with Articles 74 and 80 TFEU.36 Taken together, these provisions undoubtedly authorise the former Support Office and of the new Asylum Agency. They may even be interpreted as to approve involvement in administrative decisions on individual cases at the national level, or the exceptional direct enforcement of the supranational legislation in line with the case law 31 See Case C-270/12 United Kingdom v Parliament and Council EU:C:2014:18, paras 97–115; and Roman Lehner, ‘Rechtliche Möglichkeiten zur Schaffung einer EU-Asylbehörde’ in Roman Lehner and Friederike Wapler (eds), Die herausgeforderte Rechtsordnung (BWV 2018) 183, 190–96. 32 See Violeta Moreno-Lax, Accessing Asylum in Europe (OUP 2017) 28–40; and Herbert Rosenfeldt, Frontex im Zentrum der Europäischen Grenz-und Küstenwache (Mohr Siebeck 2021) 46–50. 33 See Jörg Monar, ‘Die Vertragsreformen von Lissabon in den Bereichen Inneres und Justiz’ [2008] Integration 379, 385; against Roberta Mungianu, Frontex and Non-Refoulement (CUP 2016) 22–24. 34 Contra Jorrit J Rijpma, ‘Frontex and the European System of Border Guards’ in Maria Fletcher and others (eds), The European Union as an Area of Freedom, Security and Justice (Routledge 2017) 217, 236–37. 35 See Thym (n 4) paras 19–20a. 36 These latter may be relevant for information exchange and training (supported by Article 74 TFEU) and involvement in decision-making at the external borders (in line with Article 80 TFEU).

Constitutional Foundations 205 mentioned previously. That being said, the argument in favour of supranational decision- making remains an uphill struggle, since primary law is less ambitious than for Frontex. The legislature benefits from a certain leeway to develop a robust asylum agency going beyond the status quo, although the level of ambition is constitutionally bound to stay behind the powers of Frontex.37

8.2.2 ‘Meroni’ doctrine: no decisive hurdle Constitutional limits for operational powers embrace the Meroni doctrine, which should be distinguished from the scope of Union competences. Competences serve as the first hurdle, since measures not covered by primary law cannot be adopted by the EU institutions. The Meroni doctrine, named after an early Court judgment, enters the equation once the first hurdle has been cleared. It limits the power of the EU institutions to delegate certain matters to agencies. The position of the Court of Justice on the delegation of decision-making power has changed over the decades in response to the evolving characteristics of the supranational agencies and in light of the Treaty of Lisbon.38 In essence, the contemporary Meroni doctrine allows for the adoption of administrative decisions affecting individuals whenever the powers delegated to an agency are precisely delineated and amenable to judicial review.39 Application of secondary legislation on the basis of technical expertise can usually be delegated, as long as delegation does not result in what one might call ‘political’ discretion.40 Such ‘technical’ application of the law cannot be distinguished from ‘political’ choices easily, also considering that the discussion so far has focused on regulatory agencies, not operational powers. On the whole, the operational functions entrusted on the Asylum Agency and Frontex are probably compatible with the Meroni doctrine with regard to participation in individual decisions. A different conclusion might possibly be defended for decisions about whether to launch operations and perform risk assessments,41 even though the agencies’ governance structure reduces the freedom of manoeuvre on such politically sensitive matters. In the case of both Frontex and the Asylum Agency, the Management Board, the Council, the Commission, and the European Parliament participate in programming and in decisions having budgetary implications.42 That involvement renders it difficult to conclude that there is ‘political’ leeway. When it comes to the participation in administrative decision-making, it would not enough, in light of the case law, to find that the agencies have factual leeway (or ‘discretion’43), 37 On different options see Evangelia (Lilian) Tsourdi, ‘The Emerging Architecture of EU Asylum Policy’ in Francesca Bignami (ed), EU Law in Populist Times (CUP 2020) 191, 212–17; and Lehner (n 31) 197–204. 38 See generally Paul Craig, EU Administrative Law (3rd edn, OUP 2018) 168–71; and Chamon (n 17) ch 4. 39 See United Kingdom v Council and Parliament (n 31) paras 44–54, 63–68; which modernised the earlier findings in Case 9/56 Meroni EU:C:1958:7; and Case 98/80 Romano EU:C:1981:104. 40 See Carl Fredrik Bergström, ‘Shaping the New System for Delegation of Powers to EU Agencies’ (2015) 52 CML Rev 219. 41 See Rosenfeldt (n 32) 142–74; and Rijpma (n 11) 93–94. 42 See Frontex Regulation (EU) 2019/ 1896, arts 102, 115– 16; and EUAA Regulation (EU) 2021/ 2303, arts 42, 52–53. 43 On the polysemy of the notion of discretion see Jonas Bornemann, The Transformation of Discretionary Power in European Migration Law (PhD Thesis, University of Konstanz 2022); and Marta Simoncini, Administrative Regulation beyond the Non-Delegation Doctrine (Bloomsbury/Hart Publishing 2018) ch 3.

206 Agencies (Frontex and Asylum Agency) Table 8.1 Participation in the most relevant entry and border control instruments Instrument

Ireland /UK (before Brexit)

Denmark

Schengen? Accession (NO, IS, CH, LI)

Frontex Regulation (EU) 2019/1896

no

no (int. law)

yes

yes

EUAA Regulation (EU) 2021/2303

no

no (int. law)

yes

yes

for instance when agency staff prepares an inadmissibility decision in response to an asylum application or whenever Frontex personnel refuses the entry of a third country national in line with comments that will follow. One would have to demonstrate, rather, that doing so involves policy choices which go beyond the application of secondary legislation.44 Such a conclusion is almost impossible to defend given the level of detail of the legislative rulebook and the guarantee of legal remedies before domestic courts.45 One would have to develop, instead, a new model of constitutional limitations for operational activities which no-one has seriously tried to put forward so far. Involvement in individual decisions raises complex questions of legal oversight, but it does not involve political flexibility on the basic layout of EU migration law.

8.2.3 Territorial scope Participation in Frontex presupposes membership of the Schengen area. Table 8.1 illustrates that associated countries participate fully, including the right to vote in meetings of the management board. Chapter 2.4.2 explained that the Court rejected a British attempt to join without abolishing internal border controls. Ireland does not, as a result, participate either, although it may cooperate with Frontex.46 The special status of Denmark reflects its half-hearted Schengen membership, as described in Chapter 2.4.1 on the opt-outs. New Member States participate immediately after accession, to prepare national border guards for full Schengen membership.47 All Member States without an opt-out fully participate in the Asylum Agency. Associated countries can join as observers and participate in the operational activities, provided they contribute to the budget.48

44 See Édouard Dubout, ‘Les enjeux constitutionnels du pouvoir de substitution de l’agence Frontex’ [2017] Revue trimestrielle de droit européen 457, 469–73. 45 See Fernández Rojo (n 16) 171–74. 46 See Frontex Regulation (EU) 2019/1896, art 70. 47 See ch 12.3.1; and, by way of example, Act concerning the conditions of accession of the Republic of Croatia [2012] OJ L112/21, Annex II, art 4(1), No 8. 48 See EUAA Regulation (EU) 2021/2303 recital 65, art 34.

Frontex: Institutional Muscle Formation 207

8.3 Frontex: Institutional Muscle Formation Frontex often assumes a prominent position in public debates. The border agency is, much more than the sister agency for asylum, a powerful symbol of the move towards ‘fortress Europe’ for some and evidence of ‘a Europe that protects’ for others.49 Operational powers are the hallmark of Frontex activities, ranging from joint operations at the external borders to involvement in individual decisions (8.3.1). Politically sensitive are supervisory functions, including the option of compulsory intervention in Member States under pressure (8.3.2). Cooperation with third states is set to become a central arena in the future (8.3.3), together with the purchase of technical equipment and advanced technological border surveillance (8.3.4).

8.3.1 Operational powers Operations are widely discussed. The first sea operation ‘Hera’ started off the Canary Islands in 2006 where many ships with migrants from Western Africa arrived during that period. The central Mediterranean became the focal point thereafter, with the Frontex missions ‘Triton’ and, later, ‘Themis’ superseding the Italian operation called ‘Mare Nostrum’ from 2014 onwards.50 These operations made headline news for their involvement in search and rescue, which brought several hundred thousand refugees to Europe and did not prevent more than 10,000 deaths; the central Mediterranean earned the dubious reputation as the deadliest migration route in the world. Some additional information on these controversial Frontex missions can be found in Chapter 18.3.4 on externalisation; international and human rights standards will be discussed in Chapter 12.2 on border controls. Smaller operations took place at land borders in parallel, for instance between Greece and Turkey on the banks of the river Evros. At the time of writing, three main operations were ongoing: ‘Themis’ in the Central Mediterranean; ‘Poseidon’ in the Aegean Sea; ‘Minerva’ and ‘Indalo’ near the Spanish mainland and the Canary Islands; as well as several smaller missions, for instance in Lithuania. Generally speaking, the new mandate distinguishes between ‘joint operations’ for the deployment of coastguard ships from several Member States, ‘rapid border intervention’ involving seconded national staff or supranational personnel in administrative decisions, and ‘migration management support teams’ in scenarios of mixed migratory flows.51 While Frontex operations may last for longer periods, rapid border intervention and support teams are confined, in theory at least, to exceptional scenarios of disproportionate challenges. From an institutional perspective, Frontex missions are governed by an operational plan (OPLAN), which is confidential and drawn up by the executive director, in cooperation with the host country and the fundamental rights officer.52 Much less visible than the deployment of equipment or personnel at the external borders are the activities in the field of return. Agency powers have increased significantly over

49

On the public discourse see ch 1.2.6.

51

See Frontex Regulation (EU) 2019/1896, arts 36–40. ibid arts 38, 109(2)(e).

50 See https://en.wikipedia.org/wiki/Operation_Mare_Nostrum (accessed 1 March 2023). 52

208 Agencies (Frontex and Asylum Agency) the years, both in terms of regulatory leverage and operational capabilities. While the decision whether someone should be returned remains the prerogative of the Member States, Frontex may support voluntary and forced return in practice. Contributions encompass, amongst others, the organisation and coordination of return operations, in particular flights, the exchange of best practices, financial support, the acquisition of travel documents, and the provision and training of return monitors.53 We can expect return activities to grow further precisely because they are less visible. Originally, Frontex served primarily as a clearing house and facilitator for national contributions. In the future, the agency will deploy many resources of its own. It purchases equipment and has started setting up a ‘standing corps’. The standing corps is scheduled to comprise 10,000 staff in the year 2027, with 3,000 supranational officers, employed by Frontex directly, and 7,000 national staff for short-term and long-term secondment.54 This marks an important innovation, with Frontex hiring officials to be deployed, as federal border guards, alongside national personnel. Members of the standing corps will act under the political and legal responsibility of the host state.55 This ensures that the corps stays short of fully fledged administrative centralisation substituting national units, which might require Treaty change. Statutory provisions on the involvement in administrative procedures will be presented in the context of legal oversight. It is not a foregone conclusion that Member States will wait in line to welcome Frontex. For example, Spain has never accepted Frontex involvement in Ceuta or Melilla, and Poland rebuffed a deployment at the border with Belarus during the stand-off about the instrumentalisation of migration in 2021. Considerations of ‘pride’ are one explanation, with national border guards considering Frontex as a sort of ‘neo-colonial’ actor which signals their own incapacity. Frontex also gathers transnational media attention and public scrutiny, thus putting national practices in the spotlight. If Member States were unwilling to host Frontex missions, the standing corps and other supranational personnel might be used to reinforce cooperation with third states.

8.3.2 Supervision of the Member States A legally tricky and politically controversial move is the authority to intervene on the ground, if needs be against the will of the Member State concerned. These emergency powers were a response to the policy crisis of 2015/16 when some countries deemed it appropriate to have far-reaching tools to force ‘negligent’ partners to take border controls seriously. They are problematic from a constitutional perspective but are probably compatible with the EU Treaties. In situations of extreme urgency, the principles of solidarity and loyal cooperation, enshrined in Article 4(3) TEU and Article 80 TFEU, arguably outweigh national prerogatives for self-government and the maintenance of law and order, which are protected under Article 4(2) TEU and Article 72 TFEU.56 Such compulsory federal jurisdiction would hardly succeed in practice without the cooperation of the authorities of the state 53 See ibid arts 48–53; and Gkliati, Mariana, ‘The EU Returns Agency’ (2022) 24 EJML 545. 54 ibid Annexes I–IV. 55 ibid arts 54–62, Annex V. 56 See Rosenfeldt (n 32) 174–88; Dubout (n 44) 473–76; and Jorrit Rijpma, The Proposal for a European Border and Coast Guard (Study for the European Parliament, PE 556.934, March 2016) 18.

Frontex: Institutional Muscle Formation 209 where the operation shall take place.57 Support is particularly important whenever agency staff is involved in administrative decision-making or depends on the host country for accommodating asylum applicants and other migrants. Procedurally, the mandatory deployment of Frontex presupposes persisting deficits in certain segments of the external border, to be identified on the basis of a ‘risk analysis’ (with regard to migratory movements) and a ‘vulnerability assessment’ (regarding the preparedness of the Member State).58 Frontex would play a critical role in the risk analysis and vulnerability assessment, while the authority to mandate the compulsory intervention would rest with the Council, acting by a qualified majority.59 In light of the need for practical cooperation, the option of compulsory intervention will primarily serve dissuasive functions—to use a metaphor that has become popular in EU-circles in recent years: it is the ‘nuclear option’ no one wants to employ. This ultimate instrument had not been activated at the time of writing, in contrast to the ‘softer’ Schengen evaluation mechanism, mentioned in Chapter 12.3.2 on border controls.

8.3.3 Cooperation with third states Cooperation with third states is a domain where Frontex can add value, precisely because it can be useful to pool resources. Indeed, international activities feature prominently in the new mandate. Cooperation may range from information exchange, for instance via liaison officers, over technical and operational assistance to cooperation on return.60 At the time of writing, the EU institutions were considering the future deployment of Frontex personnel in important transit countries in the Sahel region, Morocco, and Iraq. These missions further afield would complement ongoing activities in the Western Balkans, which have seen and are still experiencing a significant expansion. The tasks and job description of agency staff depend on the context and can change over time. A ‘model working arrangement’ indicates the breadth of possible actions.61 Frontex would work alongside other Union activities, such as financial and other support for capacity building and migration management, which will be presented in Chapter 18.3.2 and 18.4.2 on the external dimension. Working arrangements establish a political framework for practical cooperation without being legally binding.62 Nevertheless, the international activities of Frontex raise complex legal questions from an institutional perspective under both Union law and public international law.63 Data protection may possibly prove to be a vehicle to hold the border agency to account for international cooperation.64 Additional concerns exist with respect to compliance with human rights and non-refoulement obligations, to be discussed in Chapter 12.2 on border controls. A far-reaching form of cooperation are status agreements, which 57 Frontex Regulation (EU) 2019/1896, art 42(5) recognises the need for cooperation insofar as the OPLAN requires the consent of the host state. 58 ibid arts 29, 32–35. 59 ibid arts 32(10), 42(1); and TEU, art 16(4). 60 Frontex Regulation (EU) 2019/1896, arts 70–78; and see Florin Coman-Kund, European Union Agencies as Global Actors (Routledge 2018) 178–92. 61 See Commission, ‘Communication: Model working arrangement’ COM(2021) 830 final. 62 ibid Annex I, No 13; and Coman-Kund (n 60) 193–202. 63 See Merjin Chamon, ‘A Constitutional Twilight Zone’ (2019) 56 CML Rev 1509. 64 See Frontex Regulation (EU) 2019/1896, art 86.

210 Agencies (Frontex and Asylum Agency) authorise Frontex staff to exercise executive powers. Such status agreements are legally binding and are concluded in accordance with procedure set out in Article 218 TFEU.65 A first set of status agreements were signed with Albania and Macedonia in 2018,66 thereby effectively projecting the rationale behind joint operations and rapid border intervention to the territory of third states. From a constitutional perspective, there is little doubt that Frontex can be entrusted with international cooperation. Article 77(2)(b) and (d) TFEU do not specify the geographic location of border controls, which need not be restricted, as a result, to the immediate environment of the borderline. The Treaty objective of ‘efficient monitoring’ ‘at all stages . . . of migration flows’67 calls for some flexibility of the legislature regarding pre-arrival measures on the high seas or in third countries.68 If need be, additional legal bases can be activated, such as Article 78(2)(g) TFEU for cooperation on asylum or Article 79(2)(c) TFEU for return.69 That is precisely what the Council did when concluding the status agreement with Albania.70 Therefore, it is not problematic per se that the former limitation of executive powers to neighbouring states was discontinued in the latest version of the Frontex Regulation.71 Arguably, Frontex could even be authorised to support return to another third state, as the Commission had originally proposed.72 The powers of Frontex are not universal, however; they require a functional linkage with movements towards Europe.

8.3.4 Eurosur and procurement of equipment An important area of Frontex activities is often overlooked by legal observers and in the policy debate. Frontex has started buying equipment and manages the European Border Surveillance System (EUROSUR), which builds upon previous Spanish practices.73 While operational equipment is mostly acquired to support national border guards or joint operations (also as an instrument of financial solidarity), EUROSUR coordinates the deployment of drones, reconnaissance aircrafts, and satellites to track migratory movements; the material is partly owned by Frontex. EUROSUR transforms border controls via modern technology, including the future use of artificial intelligence.74 To perform these tasks, the agency cooperates with industrial partners. Substantial parts of the budget will be spent on lucrative contracts to operate existing systems and develop pioneering surveillance

65 ibid art 78(3); and ch 2.3.5. 66 See eg Status Agreement between the European Union and the Republic of Albania on actions carried out by the European Border and Coast Guard Agency (adopted 5 October 2018, entered into force 1 May 2019) [2019] OJ L46/3. 67 TFEU, arts 77(1), 79(1). 68 See ch 12.2.1. 69 See ch 18.2.1. 70 See Council Decision (EU) 2019/267 concerning the conclusion of the Status Agreement between the EU and Albania [2019] OJ L46/3. 71 Contrast Frontex Regulation (EU) 2019/1896, art 73(3) with the former Frontex Regulation (EU) 2016/1624, art 54(3). 72 See Proposal for a Frontex Regulation, COM(2018) 631 final, art 75(4); and Thym (n 4) MN 20b. 73 See Frontex Regulation (EU) 2019/1896, arts 18–23; and ch 18.3.3. 74 See Communication: ‘Commission establishing multiannual strategic policy European integrated border management’ COM(2023) 146 final, Annex 1; and Frontex, ‘Artificial Intelligence-Based Capabilities for the European Border and Coast Guard’ (Final Report, March 2021).

Asylum Agency: Latecomer with Subtle Influence 211 apparatuses.75 Scrutinising these activities from a legal perspective requires an advanced knowledge of public procurement law and budgetary procedures. The operation of remote high-tech border controls raises important political and legal questions.76 A telling example are contracts Frontex has signed with Airbus and Israeli companies to monitor movements in the Mediterranean.77 Apparently