04 March 2024
Re-Imagining the European (Political) Community through Migration Law
The constant portrayal of migration as an exceptional and problematic phenomenon fuels public anxieties and makes deterrence and harshness seem like the only effective political approaches to managing global migration. By contrast, positive visions of how a society of immigration needs to look like for all members of society to benefit are scarce. Yet to counter apocalyptic scenarios, we need not only such a positive vision but also a theory of societal action that helps to realize it. This blog post offers such a vision and theory that is grounded in the normative and legal framework of the European Union. It argues that we should conceptualize the European society as an inclusive, participatory, and self-reflexive community that is based on constitutional principles as enshrined in Art. 2 TEU. To realize this vision, we must understand practices of claiming and defending human rights not as an overreach into the political latitude of the legislator but as a joint practice of (political) community-building. Continue reading >>
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04 March 2024
The Place of Numbers in Migration Debates
The governance of migration, in particular of asylum migration, is caught in the contrast between the political relevance of numbers, and the individuum-based structure of the law. For politics, it matters how many persons arrive, require shelter, enter procedures. For the legal assessment, however, numbers mostly do not matter: The right not to be rejected at the border, the right to access an asylum procedure and to shelter during that procedure are individual rights that are independent from the overall number of arrivals. This contrast is visible in periodical debates about a maximum number of asylum seekers per year, or proposals to abolish the individual right to protection altogether. Such proposals disregard that individual rights to protection are enshrined not just in constitutional law, but also in European and international law, and for good reason. However, it is worth taking the perspective of numbers seriously – while respecting the individual right to protection. Continue reading >>
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27 February 2024
How the EU Death Machine Works
Since 2015, more than 27.500 innocent people died or ‘went missing’ in the Mediterranean. They drowned by themselves thanks to villain smugglers, the Council submits; accountability for the death toll is a complex matter, the Court of Justice finds; besides the geopolitical times are complex – the Commission is right. But what an accident: mare nostrum, a great thoroughfare, turned itself into a racialized grave. Yet, these deaths at EU borders, just as mass abuse and kidnappings by EU-funded and equipped thugs in Libya do not happen by chance. The EU-Belarus border is another locus of torture and violence. All this is a successful implementation of well-designed lawless policies by the Union in collusion with the Member States. In this post, we map key legal techniques deployed by the designers of the EU’s death machine. Continue reading >>
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26 February 2024
Rethinking the Law and Politics of Migration
2023 was, to put it mildly, a terrible year for (im)migrants and their human rights. With the declared end of the Covid pandemic came an end to the exceptional border policies it had led to which had further restricted already weakened migrants’ rights. Yet governments have largely chosen to replace them with legal frameworks that incorporated many of the same rights negating policies and ideas- except for this time they put them on a permanent legal basis. Liberated from their initial emergency rationales, asylum bans have now joined outsourcing and overpopulated mass detention camps as standard methods of migration governance. What is the role of legal scholarship and discourse at a time where governments seem increasingly comfortable to eschew many long-standing legal rules and norms, often with majority support? Continue reading >>
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21 November 2023
Limited Success
On 11.11 Australia and Tuvalu concluded a treaty on establishing the ‘Falepili Union,’ which deals with three pressing matters (art.1): climate change adaptation, collective security, and a new human mobility pathway. Hailed as ‘groundbreaking’, and ‘the most significant Pacific agreement in history,’ the Treaty certainly constitutes a profound step forward in building climate-resilient international relations, especially with its contributions to international migration law and international law on statehood. However, it also falls short in several instances, especially in fully respecting Tuvaluan equality in relation to Australia. Continue reading >>
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05 July 2023
Constraining Executive Discretion in the ‘Public Interest’
The use of highly-discretionary executive powers to make immigration decisions has given rise to debate in Australia and internationally. In Australia, the problem is particularly acute because a number of provisions in the Migration Act 1958 (Cth) (the Migration Act) allow the Minister for Immigration (the Minister) to intervene in visa decisions on ‘public interest’ grounds. These intervention powers are controversial as they are personal to the Minister, non-reviewable and non-compellable. As a result, they have been subject to criticism by both civil society and academics. In addition to these intervention provisions, other sections in the Migration Act include a broad and subjective ‘national interest’ criterion for the grant or refusal of certain visa decisions. These two sets of powers were recently adjudicated in a series of High Court cases in Australia. Continue reading >>
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10 March 2023
What is the Point of the UK’s Illegal Migration Bill?
The introduction of the Illegal Migration Bill to the UK Parliament appears to be the latest outburst of the Conservative government’s increasing hysteria with respect to the small boat crossings of the Channel in which Brexit-released fantasies of post-imperial sovereign power are acted out in the form of half-baked legislative proposals. The politically inconvenient fact that most of the 15% of asylum seekers who reach UK territory in this way are found to have legitimate asylum or protection claims seems to be a particular source of rage with a leaked Conservative Party email to party members under Suella Braverman’s name blaming “an activist blob of leftwing lawyers, civil servants and the Labour Party” for boat crossings, which at least suggests she knows her audience. This is “Build the Wall” for an island nation and, like Trump’s project, its primary value is as a fantasy object than a practical project. Continue reading >>
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23 February 2023
Departing from Hostile Refugee Landscapes
In December 2022, the Swedish Migration Agency estimated that the Taliban’s conquest of Afghanistan has made the lives of Afghan women and girls so difficult that it counts as persecution based on gender. Against this background, the Migration Agency announced that all women and girls from Afghanistan are eligible to refugee status and a three-year residence permit in Sweden. These policies represent a major departure from the wide range of restrictive amendments that Denmark and Sweden, over the past decades, have introduced to their asylum laws with the aim of becoming less attractive target countries for asylum seekers. Continue reading >>
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09 December 2022
#DefendingTheDefenders – Episode 3: Afghanistan
When the Taliban took over power in Afghanistan in the summer of 2021, it was a disaster for women. Immediately, they were stripped of their rights, in particular their political rights. In the third episode of #DefendingTheDefenders, a podcast by Deutscher Anwaltverein and Verfassungsblog, we talk to Shabnam Salehi about the human rights situation in Afghanistan and the rights of women in particular and to Matthias Lehnert about the German and European Migration Law system. Continue reading >>
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17 November 2022
Picking Primacy over Procedural Autonomy
On 8 November, the Grand Chamber of the Court of Justice of the European Union (‘the Court’) decided that national courts are required to ascertain of their own motion whether detention of an illegally staying foreign national or asylum seeker is lawful. This judgment is an example of the ever-growing impact of EU law on national procedural rules, especially in the migration law area. The judgment is also noteworthy because of the difference in approach between, on the one hand, the Court and, on the other hand, the Dutch referring courts and AG Richard de la Tour. Continue reading >>
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