Skip to main content

Lund University Publications

LUND UNIVERSITY LIBRARIES

Migration as a Constitutional Crisis for the European Union

Loxa, Alezini LU and Stoyanova, Vladislava LU (2022)
Abstract
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... (More)
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. (Less)
Please use this url to cite or link to this publication:
author
and
organization
publishing date
type
Chapter in Book/Report/Conference proceeding
publication status
published
subject
keywords
EU Law, Migration law, EU-rätt, Migrationsrätt
host publication
Migrants' Rights, Populism and Legal Resilience in Europe
editor
Stoyanova, Vladislava and Smet, Stijn
publisher
Cambridge University Press
DOI
10.1017/9781009040396.009
project
Is Europe Loosing its Democratic Compass? Authoritarian Populism, Restrictions of Migrants' Rights and Democractic Decay in Europe
language
English
LU publication?
yes
id
157c4dc4-162c-457b-8b4a-f563930d65d2
date added to LUP
2021-05-15 15:30:27
date last changed
2022-10-13 11:42:41
@inbook{157c4dc4-162c-457b-8b4a-f563930d65d2,
  abstract     = {{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.<br/><br/>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.}},
  author       = {{Loxa, Alezini and Stoyanova, Vladislava}},
  booktitle    = {{Migrants' Rights, Populism and Legal Resilience in Europe}},
  editor       = {{Stoyanova, Vladislava and Smet, Stijn}},
  keywords     = {{EU Law; Migration law; EU-rätt; Migrationsrätt}},
  language     = {{eng}},
  publisher    = {{Cambridge University Press}},
  title        = {{Migration as a Constitutional Crisis for the European Union}},
  url          = {{http://dx.doi.org/10.1017/9781009040396.009}},
  doi          = {{10.1017/9781009040396.009}},
  year         = {{2022}},
}