Courts and the Rights of Returnees in Europe: What is missing from the Pact on Asylum and Migration?

Over the last decade, the judicial dialogue between domestic courts, the CJEU and the ECtHR has filled legislative gaps in the Return Directive. Through judicial interactions, courts have created space for the recognition of new rights, remedies and principles reflecting the realities of returns and Member States’ obligations under international human rights. Returnees have thus been recognised: a right to be heard by administrative authorities; a right to appeal before a court; an automatic suspensive effect of appeal in certain circumstances; and access to social benefits for the seriously ill and minor children.
In the political negotiations on the 2020 Pact on Asylum and Migration and on recasting the Return Directive, effectiveness of returns has been the primary driver for legislative reform. This intervention will specifically address the question of whether the 2020 Pact and the proposal for the recast of the Return Directive codify jurisprudentially developed standards.

Financial Aspects of the Implementation of the Migration Pact

The implementation of the Migration Pact will be highly operationally challenging as the screening and border procedures, relocations and returns can be properly implemented only provided Member States are sufficiently equipped, capacitated and trained. The new equipment, facilities, procedures and extra staff will create additional costs which will mostly fall on shoulders of frontline Member States and Member States where most relocations will take place. Insufficient investment in screening and border procedures will result in poor implementation of the Migration Pact and serious violations of third-country nationals’ rights. It will also trigger increased discontent of frontline Member States and mutual accusations among Member States and EU institutions. The aim of this contribution is to assess the financial implications of the Migration Pact and consider whether they will facilitate better implementation of the Pact or create additional challenges.

From the refusal strategy to the right to move: exploring the Case of the Atlantic migration route in the light of the EU liberties

The Atlantic route (Canary Islands) has received 23.000 migrants in the last year. The same year that the European Commission passed the New Pact on Migration and Asylum. According to this pact, newcomers should remain confined in centres until they are categorized as “irregular migrants” or “legitimate asylum seekers”. The aim of this paper is to question this institutional strategy of contention, screening and refusal by analysing both national and EU law, with special attention to the freedom of movement. I will combine legal and jurisprudential materials together with field work empirical data to argue that these Islands are becoming a de facto laboratory of a new version of the “hotspot approach”.

Seeking Subsidiarity To Achieve Solidarity: A Review of Some Key Measures in the New Pact on Migration and Asylum

The aim of our presentation is to analyse the New Pact on Migration and Asylum through the lens of the principle of subsidiarity, which requires, according to the case law of the Court of Justice and also in the inter-interinstitutional practices developed on better law-making, a comparative federalism exercise proving the added value of the measure. More precisely, we explore the connections between subsidiarity and solidarity in the context of EU asylum law, starting from the perspective that integration in the context of migration and asylum has developed from an intergovernmental cooperation logic and as a spill over of the freedom of movement. The argument is built upon the analysis of the added value of the proposals on screening and border procedures, and on the solidarity contributions respectively envisaged in the Asylum and Migration Management and in the Crisis and Force Majeure proposals.