European Courts and judicial dialogue disentangling the refugee crisis: What scope for asylum seekers, refugees and irregular migrants’ rights?

The Court of Justice of the European Union (CJEU) and the European Court of Human Rights (ECtHR) have developed a prolific jurisprudence on asylum seekers and irregular migrants’ human rights. Formal mechanisms of coordination, such as Article 52(3) of the EU Charter, ensure that these Courts’ interpretation of corresponding rights is similar. Since the creation of the Area of Freedom Security and Justice, the two European supranational courts, through judicial interaction (formal and informal), have actively contributed to coordinate their findings on asylum seekers, irregular migrants and visa applicants’ rights. In regard to certain human rights, the two supranational courts have actively provoked each other in a race to the top in particular as regards the protection of Article 3 ECHR, respectively Article 4 Charter (see the protection of the ‘Dubliners’ in a line of case law started by the ECtHR in M.S.S v Belgium and Greece, followed by the N.S. and others judgment of the CJEU, continued with the Tarakhel and others judgment of the ECtHR, and finalised with the C.K. and others judgment of the CJEU), as well as on securing complementary forms of international protection for those asylum seekers not qualifying as refugees (Abdida, Paposhvili). However, post ‘refugee crisis’, the dialogue seems to be replaced by instances of divergence, in particular as regards violations of the right to liberty (e.g. Ilias and Ahmed v FMS) and minors’ rights. This contribution analyses the jurisprudence of the European supranational courts pre- and post- refugee crisis for the purpose of identifying trends in the judicial dialogue narrative of the European supranational courts. The refugee crisis will be used as contextualisation for the evolving interactions between these Courts. The paper will unearth, from a theoretical and empirical perspective, lines of argumentation, principles and narratives at play in the European Courts dealing with the right to liberty, minor’s rights and national security. The analysis will also investigate the drivers of judicial divergence and the reaction of domestic courts to instances of divergent interpretation in the CJEU and ECtHR decision-making. Are domestic courts finding solutions to European judicial dissonance or choosing sides?