Legal Resilience against the Populist Assault on Migrants‘ Rights in Europe

This presentation will explore how challenging questions and tensions caused by migrants and their universalist claims for inclusion, have been approached and resolved in liberal democracies. By regarding the development of populism as a real and dangerous political phenomenon that has significant traction, I will examine whether populism adds something new and distinctive to the existing approach and resolution. With reference to the requirement that the state has to provide justifications for measures that affect individuals, I will explore how the tensions between exclusion versus inclusion and particularism versus cosmopolitanism, have been adjusted. My conclusion is that the adjustment has been in favour of exclusion and particularism. The concern that arises is that populism might further shape this adjustment to the point where the balance is completely tipped in favour of exclusion and statism.

The (renewed) rise of ethno-nationalist and authoritarian populism in Europe poses distinct threats to the realization and protection of migrants‘ rights. This presentation investigates when and how the law can offer resilience against populist threats to migrants‘ rights. It builds on insights from political science, constitutional law and environmental law to conceptualize the notion of ‘legal resilience‘ - and applies it to the migration context. The core argument is that legal resilience is best conceptualized as operating in two stages. In the first stage, the focus is on how resilient the legal system itself has been in the face of populist onslaught. In the second stage, the focus shifts to how the legal system can (still) provide for legal resilience against restrictive migration laws and policies. The two-stage analysis is helpful to understand if, how and where sources of legal resilience against the populist assault on migrants‘ rights can be identified across countries.

Beginning with the 2014 Khlaifia judgement, the European Court of Human Rights and the Court of Justice of the EU have given a series of judgments widely perceived as constituting a state-friendly rupture with earlier case law promoting the human rights of migrants. However, the ‘migration crises‘ that led to these developments in the case law were not the unforeseeable consequence of external events impacting on European migration law and policy. They followed from structural shortcomings of European law and policy itself. Also, the idea that earlier case law of the two European courts constituted a robust protection of migrants‘ rights has been subjected to fundamental critiques. Taking these two analyses together, this presentation will interrogate European law as actively contributing to the undermining of migrants‘ rights. Recent developments in the case law may thus be seen as a continuation of a tendency to privilege the interests of European states over those of migrants.

The seizure of almost all state institutions in Poland by the Law and Justice party (PiS) since 2015, and its related ‘good change‘ policy, has affected respect for the human rights of the whole society, and indeed the rights of migrants, particularly asylum seekers. The populist attitude to the migration crisis of 2015 -2016 turned out to be a litmus test of the resilience of democratic values and human rights. The breakdown of democracy and the issue of migrants‘ rights appear to be complementary phenomena. The Polish experience also shows that there is no such thing as an inherent resistance of the law against improper use. The law cannot defend itself, but has become a tool of the ruling politicians. Therefore, democratic decay is not primarily a legal, but rather a political problem, which may be overcome not by legal means (the law itself) but by the people‘s will expressed during elections.

Critical observers have often attributed the emergence of restrictive migration laws to rising populism and failing protection by constitutional, EU and human rights law. This presentation, however, argues that the lagging legal protection of migrants' rights is less a matter of populism and failures of human rights protection, and more a problem of too much administrative law. The contribution examines the legal infrastructure that makes restrictive migration laws possible and lawlike. The answer is administrative law. Administrative law happens to be distinctively well-suited, more so than criminal and civil law, to produce restrictive migration laws.