El-Enany, Nadine --- "The perils of differentiated integration in the field of asylum" [2017] ELECD 401; in De Witte, Bruno; Ott, Andrea; Vos, Ellen (eds), "Between Flexibility and Disintegration" (Edward Elgar Publishing, 2017) 362

Book Title: Between Flexibility and Disintegration

Editor(s): De Witte, Bruno; Ott, Andrea; Vos, Ellen

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781783475889

Section: Chapter 14

Section Title: The perils of differentiated integration in the field of asylum

Author(s): El-Enany, Nadine

Number of pages: 22

Abstract/Description:

Since the EU has expanded, both in size and competence, differentiation in the levels of willingness to integrate and in political, socio-economic and cultural terms has become an increasingly prominent feature. According to Monar, differentiation in relation to immigration and asylum matters ‘has emerged primarily in order to allow for the pursuit of a “deepening” of integration in circumstances in which the full participation of some countries is not possible’. Maria Fletcher has observed that for the EU, as a ‘flexible and evolving legal order’, there is ‘a fine line between the stagnating impact of accommodating too little and the fragmenting impact of accommodating too much diversity’. Fletcher has argued that CJEU judgments along with Lisbon’s opt-in/-out protocols suggest that the EU places ‘a more explicit emphasis on incentivising maximum participation and disincentivising a “pick and choose” and “free rider” mentality to flexibility’. This chapter argues that the field of asylum should be entirely free from differentiated integration arrangements. As a field of law which directly affects the rights of individuals in a context in which their physical survival and psychological wellbeing is at risk, the field of asylum law is unlike other competences of the EU where there is scope for differentiated integration. The chapter’s focus is the UK, a Member State with a flexible opt-in approach in relation to asylum and immigration matters. The chapter identifies a distinction between formal differentiation and informal flexibility, both of which can be conceived of as differentiation that is provided for in the field of asylum.