The Role(s) of the CJEU in Framing Migrants’ Rights: Has the Political Crisis on Asylum Re-Shaped its Approach?

From start of the ‘refugee crisis’, the CJEU approach in asylum and immigration has been criticised as lacking commitment for human rights and international refugee law (Moreno-Lax 2017, Heschl and Stankovic 2018); suffering from judicial passivism (Goldner 2018); endangering the constructive dialogue with the ECtHR (De Connick 2018); and responding positive to political pressure (Thym 2019). This contribution analyses the approach of the CJEU in asylum and immigration cases pre- and post-refugee crisis to conclude firstly, whether this criticism is founded, secondly, whether changes in the judicial reasoning of the CJEU can be identified in reaction to external pressures or ideological preferences, and thirdly the CJEU influence and broader ramifications on domestic judicial adjudication. It will show that, contrary to the above mentioned scholarly views, the CJEU case law continued a pre-existent ambivalent approach to the rights of asylum seekers and returnees. That is, while some cases show further improvement in protecting fundamental rights, other show a strong tendency of relying on an utilitarian approach, and perpetuating largely pre-existent trends in its immigration caselaw, namely: judicial minimalism; active fundamental rights protection, primarily triggered by foreign jurisprudential standards; fundamental rights empowerment triggered within the limits of the effet utile of EU law; a general trend of case-by case approach to immigration issues; and securing the essential of the rule of law, even against political pressures. This is argued to be one of the reasons contributing to the uneven development of domestic jurisprudence on common issues related to migration and constitutional justice