‘Formal Informality’ as a Tool of Governance in post-Crisis EU Migration Law and Policy

The language of ‘crisis’ has permeated law and policy-making in the European Union (EU) for at least the last decade. The political salience of migration, largely focussed on irregular migration, is now a constant feature on national and European agendas and issues of public concern. An ever constant flow of measures designed to restrict, impede and reverse migration to Europe has been accompanied by consistent efforts to engage non-EU countries in finding solutions to the ‘crisis’. The use of law, and the language used around law and legal methods in migration, has changed. As the legal system of the EU has matured, the nature of ‘law’ as we understand it has been transformed. The EU-Türkiye Statement marked a turning point in the way in which established legal forms, in this case an agreement with a non-EU state, were eschewed. The result is a lack of legal certainty and the emergence of templates which call into question the adherence of the EU, its institutions and Member States to the self-declared values in the Treaty. At the same time, the language of law is employed to give credence and legitimacy to the measures being pursued but – crucially – without the legal safeguards and procedural justice. This paper reflects on the 10 year period since the ‘migration crisis’ to evaluate the extent to which some of the measures adopted during the crisis have now become the norm, not least ‘formal informality’. The multilayered nature of EU migration law and policy, encompassing both EU initiatives and those by the Member States (either collectively or individuals) is argued to be both an evolution of a dynamic policy which mirrors other aspects of the EU integration process, but concurrently one which has special features meriting special attention, particularly insofar as the legal and human rights of the individual migrants themselves are concerned.