On Thursday, news broke that in a radical change of course the German government had agreed to incorporating the previously rejected Crisis Regulation into the EU’s new asylum and migration pact. Framed as allowing for more ‘flexibility’ in case of migratory surges, the Crisis Regulation’s now very likely adoption will, in effect, suspend the EU asylum system as we know it for the time being. After all, recorded sea arrivals are significantly up, though not (yet) at 2015 levels. A crisis in need of regulation, if you will.
There is, in a sense, nothing new about this latest regulatory attack on the rights of migrants and refugees. The last decade has seen a constant ebb and flow of headlines proclaiming yet another new or resuscitated border crisis, flooding our screens with heart-breaking tales of drowned children, separated families, and guards with guns in front of huddled masses of blank, scared faces. Each time a new ‘crisis’ is proclaimed, governments adopt harsher, ever more inhumane measures to “deter” those who cannot be deterred, for they clearly fear nothing, not even death. Each time, lefty lawyers will diligently point out the inhumanity, ineffectiveness and illegality of the newest addition in the toolbox of migrant deterrence. And each time, this is to little avail, with governmental enthusiasm for ever more restriction remaining unwavering.
In this blogpost, I highlight the dangerous fallacy that underpins our tolerance for the illegality that has come to characterize contemporary migration policy. In particular, our failure to oppose the constant expansion of the limits of the law that occurs in the name of crisis and political necessity rests on the mistaken assumption that we have nothing to lose in this race to the bottom.
Leveling Down to the Point of Oblivion
The last few years have witnessed rising contempt for legal constraints on governmental action in the realm of border control, evidenced most clearly by the consistent trend of leveling down and hollowing out the rights of migrants and asylum seekers. Yet, 2023, in particular, has seen a rapid escalation in the kind and severity of governmental responses to increased human migration, with the right to asylum now being effectively abolished for large swaths of those seeking safety and protection. Thus, earlier this year, the UK made headlines with its Illegal Migration Act which abolished the right to asylum for ‘irregular’ migrants and allowed for indefinite detention without bail or judicial review. The US followed suit shortly thereafter, substituting its Title 42 policy, which had legitimized fast-tracked expulsions for public health reasons during the course of the pandemic, with a “carrots” and “sticks” strategy. The stick was the resuscitation of Trump’s asylum ban for individuals who failed to apply for asylum in countries they passed on their journey to the US; a measure that was repeatedly declared illegal and condemned by the very administration who re- introduced it.
The Crisis Regulation would permit similar practices through its provision on ‘migration instrumentalization;’ a novel legal concept designed to legitimize the denial of the right to asylum to irregular border crosser who are thought to be instrumentalized by hostile governments to put pressure on the EU and its Member States. The instrumentalization paradigm was first utilized by countries such as Latvia, Lithuania and Poland to justify the adoption of legislation that authorized pushbacks of asylum seekers at the Belarusian border. Latvia and Lithuania have recently doubled down on this practice, despite the CJEU declaring their legislation incompatible with the Asylum Procedures Directive last year. Nonetheless, the concept has found its way into the Crisis Regulation, with only its exact scope and applicability remaining a point of contention.
Most of these measures are widely acknowledge to violate either EU or international human rights law, and/or the rule of law itself (see, inter alia, here, here, here). Nonetheless, there remain plenty of voices who will dispute that any of this is truly illegal. Each time a new measures is adopted, lawyers and policy makers will highlight the details and complexity of this or that policy, making the kind of lawyerly distinctions and nuances that is their bread and butter. I don’t meant to discredit this kind of work; after all, determining a policy’s legality is a complex and context-dependent enterprise. Yet, this attempt at line-drawing appears increasingly delusional when both the purpose and net-effect of a measure is to disapply a foundational limit on what counts as permissible governmental action in the realm of migration control, of which the right to asylum, notably, is one of the most long-standing and vital ones.
Of Crisis and Necessity
Some might say that harping on about the illegality of border control measures ignores that we are clearly confronting a crisis. It is commonly assumed that governments should be given more leeway in moments of crisis than d
