Fahey, Elaine --- "Hyper-legalisation and de-legalisation in the AFSJ: on contradictions in EU external migration law" [2019] ELECD 1338; in Carrera, Sergio; Santos Vara, Juan; Strik, Tineke (eds), "Constitutionalising the External Dimensions of EU Migration Policies in Times of Crisis" (Edward Elgar Publishing, 2019) 116

Book Title: Constitutionalising the External Dimensions of EU Migration Policies in Times of Crisis

Editor(s): Carrera, Sergio; Santos Vara, Juan; Strik, Tineke

Publisher: Edward Elgar Publishing

Section: Chapter 7

Section Title: Hyper-legalisation and de-legalisation in the AFSJ: on contradictions in EU external migration law

Author(s): Fahey, Elaine

Number of pages: 18

Abstract/Description:

The EU governance of migration has distinct internal and external facets, which may be viewed as innately contradictory. On the one hand, for example, there is legal competence for enhanced measures to combat illegal immigration, but on the other hand, it is to manage efficiently migration flows, yet with fairness towards third country nationals. These contradictions define the EU’s Area of Freedom Security and Justice (AFSJ) more generally, as a complex and evolving site of tremendous injustice and crisis. In times of crisis, there is an increasing number of soft law tools in EU external migration, used to enable flexibility, deploying management lexicon, principles and tools as a means to avoid or minimise the need for ‘hard’ binding law (e.g. frameworks, compacts, action plans), in a process of ‘hyper-legalisation’ of external migration. Often, it results from the multiplicity of constitutional competences applying in external migration. It mirrors well other crisis-ridden subjects of EU law, in particular as to the financial crisis. On the other hand, there is also a trend in significant recent case law towards the ‘de-legalisation’ of migration policy, putting key legal and policy questions in forms beyond review and outside of the Treaties, as in the financial crisis as well as other leading cases. They explicitly detail the nature of the contradictions at the heart of the external dimension to the AFSJ in the area of migration and the problematic nature of EU law-making. They also provide reasons for concern about basic conceptualisations of the rule of law therein. The key decisions arbitrarily decide the scope of ‘non-legislative’, ‘non-application’ and ‘European’ as to EU law. They emphasise the contradictions at the heart of the AFSJ, increasingly excluded through judicial review.