Going Against the Grain? The Growing but Uneven Role of Courts in Framing Principled Migration Law

Recent migrants and refugees’ inflows are challenging the very essence of the European Union. Despite what is at stake, rather than progressive convergence, the EU migration governance system has been characterized by increasingly conflicting dynamics of intra and inter-national competition and incoherence across States. Deterrence concerns and an overall downgrading of migrants/refugees/asylum seekers’ (MRAs) rights prevail across the EU countries. Against this backdrop, courts at both national and supranational levels may have the option of going against the grain, securing spaces of increasing legal protection to MRAs, mitigating and correcting some of the worst and more blatant violations of those fundamental rights that characterise contemporary democracies, and of the basic principles of modern constitutionalism. The conclusion discusses whether courts are assuming a de facto role as fundamental actors of the migration governance system in Europe, reflecting on: the pivotal arguments and conceptual tools used by different national courts to address MRAs’ rights, on similarities and differences in national and supranational courts’ legal reasoning to enhance MRAs’ rights, on the extent of the case law’s impact on foreigners’ legal status, and, more broadly, on the national management of migration flows. Finally, the contribution critically illustrates the legal paradigms invoked by the courts and explores their capacity of being assumed as legitimate and viable source of law for principled migration law.