Vladislava Stoyanova
Senior lecturer
Migration as a Constitutional Crisis for the European Union
Author
Editor
- Vladislava Stoyanova
- Stijn Smet
Summary, in English
This chapter aims to offer insights into the wider implications for the rule of law, including for the EU constitutional order, of the restrictions of migrants’ and asylum-seeker’ rights that follow from systematic noncompliance with the Common European Asylum System (CEAS) by certain Member States. In other words, has the migration and asylum crisis developed into an EU constitutional crisis? There is a growing body of literature about the constitutional crisis of the EU. A rich debate also exists as to the failures of the CEAS. Our aim is to bring these two into conversation to demonstrate that migration governance has a constitutive role for the EU. If the EU fails to treat the migration crisis as an EU constitutional crisis, the EU might risk disintegration and return to the national. This would take the evolution of the European project further away from its telos.
The framing of our research question and our arguments requires at least three initial clarifications that are offered in Section 2. The first refers to our understanding of the EU constitutional order and when this order can be perceived as being in crisis. The second refers to our understanding of a migration and asylum crisis. The third refers to the specificities of the EU as a supranational legal order in relation to the migration crisis as an EU constitutional crisis. Section 3 presents how the EU constitutional order has been challenged by the migration crisis. Specifically it presents how non-compliance, non-enforcement and informalization have become characteristics of EU migration and asylum governance especially post 2015 and have prompted a constitutional crisis where both EU institutions and Member States furnish disintegration. Given the current vision of the EU on the development of its asylum and migration governance, as expressed in the New Asylum and Migration Pact, Section 4 shows that these characteristics are likely to persist and will continue to have constitutional implications. Finally, Section 5 examines what the future holds for EU migration and asylum governance in view of the rise of populism in EU Member States, to conclude that all the alternative scenarios indicate that it might be wiser for the EU to not come forward with new proposals (such as the New Pact) in ‘politically and symbolically charged areas’ (such as migration and asylum) during populist times.
The framing of our research question and our arguments requires at least three initial clarifications that are offered in Section 2. The first refers to our understanding of the EU constitutional order and when this order can be perceived as being in crisis. The second refers to our understanding of a migration and asylum crisis. The third refers to the specificities of the EU as a supranational legal order in relation to the migration crisis as an EU constitutional crisis. Section 3 presents how the EU constitutional order has been challenged by the migration crisis. Specifically it presents how non-compliance, non-enforcement and informalization have become characteristics of EU migration and asylum governance especially post 2015 and have prompted a constitutional crisis where both EU institutions and Member States furnish disintegration. Given the current vision of the EU on the development of its asylum and migration governance, as expressed in the New Asylum and Migration Pact, Section 4 shows that these characteristics are likely to persist and will continue to have constitutional implications. Finally, Section 5 examines what the future holds for EU migration and asylum governance in view of the rise of populism in EU Member States, to conclude that all the alternative scenarios indicate that it might be wiser for the EU to not come forward with new proposals (such as the New Pact) in ‘politically and symbolically charged areas’ (such as migration and asylum) during populist times.
Department/s
- Human Rights Law
- EU Law
- Public International Law
- Migration Law
- Department of Law
Publishing year
2022
Language
English
Publication/Series
Migrants' Rights, Populism and Legal Resilience in Europe
Document type
Book chapter
Publisher
Cambridge University Press
Topic
- Law
Keywords
- EU Law
- Migration law
- EU-rätt
- Migrationsrätt
Status
Published
Project
- Is Europe Loosing its Democratic Compass? Authoritarian Populism, Restrictions of Migrants' Rights and Democractic Decay in Europe
Research group
- Human Rights Law
- EU Law
- Public International Law
- Migration Law