Risk of arbitrariness? Informal and formal administrative rulemaking in migration governance

The literature on informalization usually distinguishes between ‘hard’ (legally binding) and ‘soft’ (non-legally binding) rules. This paper suggests a different distinction: between primary rules (parliamentary law) on the one hand, and secondary rules (delegated legislation) and tertiary rules (non-legally binding rules) on the other. Both primary and secondary rules are legally binding, and, therefore, hard law. But secondary rules have in common with tertiary rules that they are promulgated by the executive instead of the legislator and that procedural and publication requirements are not always regulated (Baldwin 2005). The legal implications of using secondary or tertiary rules as regards democracy and rule of law are, therefore, similar. Migration law is part of administrative law. In administrative law, delegation of rulemaking power from the legislator to the executive is common. However, migration law also suffers from ‘migration exceptionalism’, i.e. the idea that migration law is so different from the rest of the regulatory state, that general constitutional and administrative law doctrines do not apply (Rubenstein and Gulasekaram 2017). A lack of constraints stemming from these fields of law increases the risk of arbitrary power, i.e. power that is uncontrolled, unpredictable or unrespectful (Krygier). This paper discusses the results of an empirical case study into rulemaking in the Netherlands as regards sanctions for asylum seekers who live in reception centres. It will examine the relation between primary, secondary and tertiary rules on this issue, map the constraints for the executive stemming from the primary rules and general constitutional and administrative law and analyse to what extent these constraints are complied with. This paper concludes that there is not enough protection against the risk of arbitrary rulemaking power on this particular issue. The results of this case study support the more general hypothesis that the risk of arbitrary rulemaking power in migration governance is too high, seen from the perspective of the rule of law and freedom as non-domination. It shows the need to also pay attention to formal rulemaking practises, as they might have similar implications as informal ones.