Migration and the rule of (human rights) law: Two 'crises' looking in the same mirror

Abstract

This article will attempt to demonstrate the interrelationship between two 'crises' that the European Union is facing: the so-called 'migration' or 'refugee crisis' and the crisis of the principle of the rule of law. In particular, the two crises fi nd their point of connection in the responses to migratory fl ows put in place by the EU and some of its Member States. The increasing migratory pressure on European external borders has induced some governments to adopt a restrictive and security-driven approach, carried out, on the one hand, by reinforcing border controls and surveillance, and, on the other, by seeking the cooperation of non-EU countries in order to curb migratory fl ows, contain departures, and tackle the movements of migrants towards Europe. These 'securitisation' and 'externalisation' strategies are in contrast with the principle of the rule of law under two perspectives: on the one hand, they violate some of its essential components, such as transparency, legal and procedural certainty, democratic participation, and control; on the other, they breach the same principle insofar as they lead to severe human rights violations. As for the fi rst aspect, migration and border control policies have been put in place by frontline States through a growing proliferation of atypical, informal, and non-transparent measures of migration governance, which, sounding 'legal' without actually being so, allow legislative, procedural and democratic frames to be avoided. Examples in this sense may be identifi ed in the so-called EU-Turkey Statement or in the informal, over-simplifi ed cooperation arrangements concluded by some EU frontline Member States with African countries, as in the case of Italy and Niger. As for the second aspect, the impact on the rule of (human rights) law of the response of some EU Member States to the migration crisis may be measured through the case law of the European Court of Human Rights and, more specifi cally, by considering the decisions concerning the most severe violations of migrants' rights, including those of the prohibitions of refoulement and of collective expulsion, as well as cases of illegal detention and deprivation of liberty.