The role of European Courts in contemporary (im)migration governance

The role of European Courts in contemporary (im)migration governance

The migration domain is made of a congeries of institutional and non-institutional actors contending and negotiating their role and space in the migration governance. What is the role of courts in this complex, stratified and ever-changing context?

The panel entitled ‘Migrants and the law. What European courts say on migrants’ rights’ that will take place at the conference ‘Courts as an Arena for Societal Change’, attempts to address this question. The panel sees the participation of five of the seven contributors to the special issue Adjudicating Migrants’ Rights: What Are European Courts Saying? It aims to enquire: (1) what role have courts acquired in the migration domain?; (2) whether, through their case law, courts have contributed to forging new legal paradigms against the restrictive and criminalising trends of current migration policies displayed throughout Europe?; and (3) what are the core principles courts have been invoking in their legal reasoning?

Building on three national case studies (Poland, Italy and Greece) that present a high variability in terms of the structure of the legal system and the traditional role of the courts in it, and a supranational court (European Court of Justice), the special issue provides a critical overview of some of the most significant experiences of courts activism in the migration-related domain in Europe.

The special issue starts with an article that analyses how the CJEU has shaped new rights to be heard for asylum seekers and irregular migrants and contributed to the enhancement of legal accountability of domestic executives (The European Court of Justice Shaping the Right to be Heard for Asylum Seekers, Returnees, and Visa Applicants: An Exercise in Judicial Diplomacy). Madalina Moraru observes that the CJEU case law can be understood as a form of judicial diplomacy, with a slow but solid approach to an inviolable core of an asylum seekers’ and immigrants’ right to be heard, that goes beyond some of the domestic standards of protection.

The following articles focus on different national case studies.

In France, Louis Imbert analyses how, apart from a few exceptions, the Constitutional Council has predominantly endorsed the restrictive approach of the legislator (Endorsing Migration Policies in Constitutional Terms: The Case of the French Constitutional Council). The article shows how the Constitutional Council has given constitutional legitimacy to the ‘fight against irregular migration’ pursued by the legislator and the administration, allowing balancing and sacrificing fundamental foreigners' rights for the sake of the safeguarding of public interest.

The subsequent article focuses on immigration detention in Greece (A Shortfall of Rights and Justice: Judicial Review of Immigration Detention in Greece). Here, Dia Anagnostou and Danai Angeli argue that the Greek judicial system (which allocates jurisdiction over immigration detention to a single administrative judge) generates several pitfalls, with particular reference to migrants’ rights protection and legal consistency. In this context, authors call for an institutional reform introducing a layer of appeal, so that a higher administrative court, such as the Council of State, can review the legitimacy and constitutionality of detention orders.

In Italy, the role of courts in the migration governance is explored from a different angle: the case law of the Constitutional Court on foreigners’ social rights. In her article (Questioning the Frontiers of Rights: The Case Law of the Italian Constitutional Court on Non-European Union Citizens’ Social Rights), Paola Pannia illustrates how the principles of non-discrimination and solidarity mostly drive the decisions of the Constitutional Court. These principles are given priority over other considerations such as budget constraints and political choices tied to the allocation of economic resources. Although its reasoning is not always plain and coherent, the Italian Constitutional Court has proven to be crucial in securing migrants’ rights and reshaping the relationship between the foreigner and the community in a more constitutional-oriented way, counteracting restrictive policies.

Finally, in her article (The Undermined Role of (Domestic) Case Law in Shaping the Practice of Admitting Asylum Seekers in Poland) adopting a socio-legal perspective, Monicka Szulecka focuses on the weak role of domestic case law in shaping access to the asylum procedure at the Polish eastern border. She claims that the crisis of the rule of law and the threatened independence of the judiciary, combined with the spread of anti-immigrant and anti-refugee sentiments, exacerbate the inefficacy of Polish national courts' jurisprudence. Meanwhile, in this context, also the intervention of the European Court of Human Rights shows a little influence at the domestic level when safeguarding forced migrants’ right to apply for asylum in Poland.

Drawing on these contributions, the editorial The Growing but Uneven Role of European Courts in (Im)migration Governance: A Comparative Perspective) provides a comparative analysis of European and domestic courts' reasoning patterns and variables, taking into account different contexts as well as the design, functions, impact and legitimacy of the judiciary involved in the research. Furthermore, while exploring the role of courts in shaping migration governance from a contemporary rights-based perspective, observations also arise in respect of the positioning of courts vis-à-vis the state of the rule of law in the 21st century.

More than 120 scholars from all over the world will share their findings and views on 8 and 9 July 2022 at Leiden Law School during the conference Courts as an Arena for Societal Change. Several blogs will be published on the Leiden Law Blog on the themes of the conference.


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