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Hyper-legalisation and delegalisation in the AFSJ: on contradictions in the external management of EU migration

Fahey, E. ORCID: 0000-0003-2603-5300 (2019). Hyper-legalisation and delegalisation in the AFSJ: on contradictions in the external management of EU migration. In: Carrera, S., Santos Vara, J. & Strik, T. (Eds.), Constitutionalising the External Dimensions of Eu Migration Policies in Times of Crisis: Legality, Rule of Law and Fundamental Rights Reconsidered. (pp. 116-134). Cheltenham, UK: Edward Elgar.


The EU governance of migration has distinct internal and external facets, which may be viewed as innately contradictory. On the one hand, for example, there is legal competence for enhanced measures to combat illegal immigration but on the other hand, it is to manage efficiently migration flows, yet with fairness towards third country nationals. These contradictions define the EU’s Area of Freedom Security and Justice more generally, as a complex and evolving site of tremendous injustice and crisis. In times of crisis, there is an increasing number of soft law tools in EU external migration, used to enable flexibility, deploying management lexicon, principles and tools as a means to avoid or minimalize the need for ‘hard’ binding law (e.g. frameworks, compacts, action plans), in a process of ‘hyper-legalisation’ of external migration. Often, it results from the multiplicity of constitutional competences applying in external migration. It mirrors well other crisis-ridden subjects of EU law, in particular as to the financial crisis. On the other hand, there is also a trend in significant recent caselaw towards the ‘de-legalisation’ of migration policy, putting key legal and policy questions in forms beyond review and outside of the treaties, as in the financial crisis as well as other leading cases. They explicitly detail the nature of the contradictions at the heart of the external dimension to the AFSJ in the area of migration and the problematic nature of EU law-making. They also provide reason for concern about basic conceptualisations of the rule of law therein. The key decisions arbitrarily decide the scope of ‘non-legislative’, ‘non-application’ and ‘European’ as to EU law. They emphasise the contradictions at the heart of the AFSJ, increasingly excluded through judicial review.

Publication Type: Book Section
Additional Information: This is a draft chapter. The final version is available in Constitutionalising the External Dimensions of EU Migration Policies in Times of Crisis edited by Carrera, Sergio, Santos Vara, Juan, Strik, Tineka., published in 2019, Edward Elgar Publishing Ltd The material cannot be used for any other purpose without further permission of the publisher, and is for private use only.
Publisher Keywords: Migration; EU external migration; AFSJ; Borders; Governance; Hyperlegalisation; Delegalisation
Subjects: J Political Science > JN Political institutions (Europe)
J Political Science > JV Colonies and colonization. Emigration and immigration. International migration
Departments: The City Law School > Academic Programmes
The City Law School > International Law and Affairs Group
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