Refugee Protection Backsliding in the EU as a Crisis of Principles

Crisis vocabulary has consistently dominated public discourse on asylum in both the EU and its Member States since 2015. The spike in arrivals of individuals seeking asylum in the EU highlighted the limitations inherent in the legal design and implementation of the EU asylum policy, most notably a structural solidarity deficit. It also brought into sharp relief deeper rifts of a legal, political, and moral dimension with Member States refusing to welcome refugees in the name of their national cultural and religious identity. In this contribution, I deconstruct the EU’s ‘refugee crisis’ narrative, revealing it to be a crisis of principles. I focus on four structural principles which play such a seminal role in EU’s asylum policy. The term structural does not have a special legal significance in EU law. In every day speech, structural is understood as ‘relating to the arrangement of and relations between the parts or elements of a complex whole’. A structural principle is overarching and fundamental to the legal regime in question. It affects how the parts or elements of a complex whole relate to each other, influencing either the ‘quality’ of inter-relations, or the telos pursued, or both. I have identified four principles which play such a seminal role in EU’s asylum policy: fundamental rights; mutual trust; solidarity; and the rule of law. These principles are structural and arguably hold a constitutional status, i.e. express shared common values of a fundamental character, for the entire EU integration project. As the analysis will show structural principles affect both the legal design and the operationalisation of EU’s Common European Asylum System and thus, they feature prominently in legal debates; constitute the object of judicial interpretation and contestation; as well as occupy a central role in policy discourse.