Bifurcation of people, bifurcation of law: externalization of migration policy before the EU Court of Justice

Abstract

In the past 25 years, European migration policy has been externalized, resulting in a bifurcation of human movement. This has become clearly visible in the context of Syrian refugees. In two judgments, the EU Court of Justice was confronted with cases challenging the exclusion of Syrian refugees from Europe. This article seeks to analyse these judgments in the context of the broader developments in European migration law and policy. The core analysis developed here is that the bifurcation of human movement is reflected in a bifurcation of law. Excluded people are to be excluded not merely from European territory, but also from European law.

Examining the Global North Migration Policies: A “Push Out – Push Back” Approach to Forced Migration

“…This discourse is visible in all the countries of the Global North, where the presence of forced migrants has been politicized since 1980. In the 1990s, the outcome of this debate sparked the introduction of new regulations and policies designed to limit the influx of forced migrants (Huysmans, ; Spijkerboer, ). Securitization has become so firmly embedded within the core of some institutions, for example the EU, that countries wishing to liberalize their migration policies are now called to order.…”

“…These agreements result in other governments assuming responsibility for protecting the external borders of the Global North countries, either by directly collecting remuneration for this or indirectly reaping other benefits. These agreements not only push physical borders but also lead to the externalization of migration policy and its instruments (Spijkerboer, ; Del Sarto, ; Walker, ; Campesi, b). They also include the construction and maintenance of detention centres, paid for by the Global North countries far beyond their own borders and far beyond the bounds of human rights.…”

“…Refugees are also denied humanitarian visas. In 2017, the Court of Justice of the EU in Case C‐638/16 PPU confirmed that EU law does not require Member States to issue such visas to refugees, even if they are directly under threat in the country where they apply (Spijkerboer, ).…”

Border Deaths

“…Should the aspiration of human beings to mobility or that of states to control their borders be taken 'as the constitutive phenomenon which does not need a legitimation in order to be legitimate' (Spijkerboer 2018: 20)? Even if one gives states priority, human rights law could be interpreted more creatively (Spijkerboer 2017) to trigger obligations for states to prevent border deaths (Spijkerboer 2007). For example, states may be legally obliged to issue humanitarian visas under certain conditions ).…”

Border Deaths

“…Case C-638/16 PPU. See Moreno-Lax 2017aSpijkerboer 2017. Insights can focus on multiple levels of analysis, from the micro level, in what could be described as capturing the direct and very tangible causes of death at the borders, to the macro level such as post-colonial structures. Interestingly, these insights at all levels can be in operation at the same time or can be simultaneously linked to a specific border death.…”