Critical legal scholars observe that irregular migrants are rendered cheap labour forces in most labour relations and are abandoned in the condition of severe exploitation. This paper, asks ‘how the legal constructions behind the protection of labour-related rights under the European regime of human rights enable the exploitation of irregular migrants.’ In order to address this question, I develop a review of the labour-related protections vis-à-vis irregular migrants under the European human rights framework as well as a review of the landmark rulings of the European Court of Human Rights in this regard. I argue that the exploitation of irregular migrants takes place not because they lack the right to work and the protections attached to it. Irregular migrants, rather, turn exploitable subjects from the outset through the normalization of an inversion in the derivative and core elements of the human right to work under the European regime of human rights.
Public law policy on the inclusion of third country nationals in the EU (non-EU migrant, TCN), “integration policy”, constructs the migrant ‘Other’; hostility, oppression, discrimination in host societies inform such policies. They essentially legitimize territorialism, societal unease, and power politics. Migrants are asked about personal moral culpability, personal beliefs and affections. On the other hand the ‘good migrant’, with skills, qualifications, and wealth, economically beneficially to the receiving society, are exempted. We focus on two undesirable consequences of such “integration policies”, 1) they have made acceptable the idea that the progressive incorporation of the vast majority of newcomers relies on a process of ‘conversion’ into suitable, economic, members and 2) the generalized assumption that (un)successful integration can be measured by objective indicators. We argue that there are missing pieces in crafting sustainable policies of inclusion of non-EU migrants.
Theory has developed around the question of judicial control of the exercise of administrative discretion and the balance of powers, balancing human rights and more ‘economic’ reasons of efficiency and effectiveness. Underlying assumptions about functioning of the executive authorities within a legal order influence the judicial control. Democratic trust of citizens in the government is one reason for restricted judicial control of administrative decisions. Expertise of authorities is another reason. In this paper I address these questions looking into the effect of case law of the European Court of Justice (CJEU) in one particular field of government action: asylum law. According to Torubarov (CJEU Case 556/17) and article 47 Charter of Fundamental Rights EU courts have the power to overturn administrative decisions in the granting of international protection. Will this development however also contribute to gaining trust in governmental action in asylum cases?
Why have Dutch courts hardly referred preliminary questions to the Court of Justice of the EU with respect to economic migration from outside the EU, while they have been relatively eager to refer in the field of family migration, asylum and the internal market? It has been argued that labour immigration decisions are less contested since admission for labour is not an individual right, like family reunification. But Dutch economic migration case law raises a plethora of issues beyond admission, on withdrawal and extension of work permits and student permits, fees under the Single Permit Directive, admission of mobile long term residents from other MS, employer sanctions in case of illegal employment. In some of these cases economic rationale dominates over a rights based language common to other migration cases. Are economic migrants to place no trust in the court, not deserving of the judges 'sympathy' as economically benefiting from migration, or are there other interpretations?
At the time following the so-called refugee crisis, when confuse and fast changing immigration legislations have become more and more frequent across European countries, turning to courts, particularly to Supreme/Constitutional courts, has proved to be one of the few successful strategies to resist the progressive erosion of migrants’ fundamental rights and liberties. The paper enquires into the role of the Italian Constitutional Court in securing spaces of legal protection for immigrants, invoking the principles of human dignity and solidarity and the EU principle of non-discrimination. The purpose of this paper is, on the one hand, to assess the strength of the legal reasoning underpinning the Court’s decisions and, on the other hand, to discuss whether such case law can effectively provide new solidarity-based legal frames to (EU) immigration law. Can a reciprocal non-contractual form of solidarity be an adequate interpretative tool on which to build immigrants’ entitlement to social rights?