Discretion comes with the possibility to choose between different legitimate solutions, involving a significant amount of power for administrative authorities. The paper discusses discretionary powers, identifying situations in which it is acceptable to grant such powers and the existing legislative drafting tools to impede discretion to turn into arbitrariness. The paper addresses three issues. First, the clarification of what shall be understood as discretion in the legal system and how to identify the existence of discretionary powers. Second, the identification of the advantages and disadvantages of discretion, in order to define possible criteria for using discretionary powers in drafting. Third, which legislative drafting tools may be used by lawmakers to grant discretionary powers: e.g. the use of “may” or “must” when referring to the powers of a deciding authority or the provision of non-exhaustive lists of situations that may determine the application of a legal provision.
ECtHR case law clarified that Article 5(1)(f) authorises lawful detention, contingent on the possibility of effectively removing the alien within a reasonable amount of time. Stateless migrants are not considered as nationals by any state: there is no prospect of removing them. They often have no way of officially being recognised as such, and are not granted the right to stay thus exposing released detainees to re-detention. Where there is no a stateless determination procedure or it is not coordinated with the removal system, EU Member States can be imputable. Administrative authorities may be responsible for applying detention to stateless persons. How well does the implementation of such legislation accomplish the aims set by the policymakers? Given that asylum and removal procedures often do not account for statelessness, is the practice of detaining stateless persons an arbitrary law-making practice?
Current practices of “interception-at-sea” preempt many travellers, from irregular migrants to would-be refugees, from claiming a legal right to enter the EU. This policy often hinges upon the consent of the sending country to agree to have its waters policed by foreign maritime authorities and to accept the return of migrants provided that countries of destination are willing to fund the camps and detention centres where migrants end up after their frustrated attempt to leave. This paper asks the following questions: how does extraterritorial migration control accommodate for the EU’s legal requirement to abide by quality of legislation? Are key elements of the better law making agenda neglected or hindered by such practices? In particular, do policymakers take into account the right to leave of those who are sent back? Can externalities of these ‘push-back’ policies be monitored? Do we face the new safe haven of arbitrary law-making and state discretion?
The social theory of migration has attached a marginal role to the State and the law, focusing on demographic, economic and social factors instead. Much of the literature argues that attempts to regulate or limit migratory flows fail in all major industrialised democracies (Hollifield, Martin, Orrenius 2004; Castles 2004). Others have explicitly criticised this idea: the share of international migrants is still quite low and the ability of migratory movements to escape state control is largely overestimated (Freeman 1994; Teitelbaum 2002; Zolberg 2000). There is a need to bring the state and the law back in the social theory of migration. The paper illustrates how migration law is driven by overlapping legal regimes in constant tension between themselves, following a paradox within the migratory policies of contemporary post-industrial democracies: the desire to limit migration (sovereignty) is at odds with dynamics that increase the degree of porosity of borders (market, rights).
Arbitrariness is detrimental to the legitimacy of any rule in a deep and decisive way. Yet, it is poorly understood and underexplored. This is regrettable because we need a better and more articulate understanding of it in order to use this key notion, in particular with regard to the so-called constitutional quality of legislation. In this paper, the concept of arbitrary power is analysed on the backdrop of contemporary theories of law and politics in view of establishing a conceptual framework of greater value for the scholar interested in investigating discretion and arbitrary measures in the law today than the ones currently on offer. The point is that, by viewing citizenship and migration policies from the perspective of the rule of law, new areas and dimensions of the problem of arbitrary law-making emerge. In this paper, a typology of forms of arbitrariness is sketched out and applied specifically to the analysis of citizenship policies and border control techniques.