The recent Syrian crisis and the following increase in migratory fluxes have put many European welfare states under pressure. At least initially Sweden has been one of the most generous European recipient of migrants, confirming its world-image as a safe harbor for “people in need” around the globe. However, due to factors of internal and international politics, the Swedish law-makers have soon turned towards a more restrictive approach to migration in order “to preserve the Swedish welfare state.” Particularly this turn has been achieved by producing several legislative provisions enlarging the discretionary power of the public agencies. This paper will address the issue of which legislative policy model is best in order to face such crisis. By looking at the Swedish example, this paper suggests that the right model of legislative policy is the one that moves the legislative law-making process closer to the judicial system.
During the 2015 ‘refugee crisis’ Sweden adopted one of the strictest asylum policies in the EU through temporary legislation. A feeling of urgency marked the drafting process. Key elements of the law-making process were disregarded: e.g. rapidly drafted proposals with no analysis of the consequences and the proportionality of the measures suggested, extremely short deadlines for formal consultation, disregard of the comments by the Legal Council and the consultation bodies. The policy effectively reached its goal (reduction of numbers of asylum seekers). However, there is no indication that the policy is being reversed. Are such derogations from the procedure established for the legislative process justifiable? This paper argues that this legislation was pushed through with deliberate disregard for key qualitative elements of the legislative process, and discusses whether this development is particular to migration and asylum policy or if it can be seen as part of a more general trend.
Since the 1951 Convention on refugees, the right not to be returned to a country where one is at risk of prosecution is recognised as one of the few principles that international law imposes on States’ discretionary power. An extensive international literature has focused on the ways in which states have tried to circumvent this obligation while recent socio-legal studies have underlined how practices such as the limitation to welfare access discourages asylum seekers. These analyses have focused on the substantial dimension of the right to seek asylum. Less attention has been payed to the jurisdictional phase. By drawing on the analysis of a wide number of minutes of proceedings and referring to recent legislative reform in Italy, the paper compares the quality of different legislation designs on the jurisdictional control of the rights of asylum seekers and argues that judicial procedural rules are key to evaluate the quality of legislation on migration and asylum.
The tension between EU harmonisation of economic migration law and Member States’ concern over their sovereignty has downplayed or neglected EU legal obligations by Member State legislators. The law-makers’ design of a system granting either no or very wide discretion to the street-level bureaucrats, as is the case in the Netherlands, creates an atmosphere of fear and frustration amongst migrants . Interestingly, we see a similar pattern in East Asia, more specifically in Macao SAR of the People's Republic of China. Both use discretionary power to randomly set income requirements for migrant workers, claiming a salary offered might be too low or high, based on vaguely defined local labour market rates. With the Netherlands and Macau as examples this contribution provides unique comparative data on law-making practices and discretion at work in the field of labour migration policy.
Citizenship by investment programs (CIPs) – granting citizenship on grounds of economic transactions – have been catching the attention of scholars during the last decade. Most agree that CIPs represent a form of selling citizenship. The introduction of the Maltese program, which grants not only national but also European citizenship, represented a turning point. Although the Maltese program has been the most controversial, it is neither the first nor the only one in Europe. The rise of CIPs around the world has aroused serious concerns among scholars: CIPs are said to corrupt democracy, increase inequality and undermine the concept of citizenship. Yet, no attempts have been made to investigate if the discretion in such programs affects the quality of legislation. This paper presents the current CIPs in the EU; charters discretion in the legislation establishing the programs; and explores how it affects the quality of the legislation.