Abstract EU Member States are increasingly invoking national security to justify restrictive migration measures and refoulement at the external borders. What is doctrinally novel is the concurrent invocation of Article 4(2) TEU and Article 72 TFEU , which is now endorsed by the European Commission in Communication COM (2024) 570, as a basis for derogating from standard asylum guarantees. This article argues that this pairing is producing a “securitization cascade” that progressively hollows out the principle of non-refoulement. This article advances three contributions: firstly, it maps the relationship between Articles 4(2) TEU and 72 TFEU as one of lex generalis – lex specialis, controlled by Article 52(1) CFR ; secondly, it systematizes “shield concepts,” notably crisis, instrumentalization, hybrid threats, as a coherent vocabulary aiming at restricting non-refoulement obligations; thirdly, it connects the ECJ ’s Article 72 TFEU jurisprudence with pending ECtHR cases to assess the risk of a dual-layered security defence across both European legal orders.
Abstract The ‘New Pact on Migration and Asylum’ expands the use of border procedures for the processing of asylum applications in Europe. To prevent applicants from entering the territory and ensure their availability throughout the procedure, Member States will restrict their movement or detain them. The accurate categorisation of the applicants’ confinement at the border is essential as this determines which fundamental rights are applicable. Although the categorisation is based on a case-by-case assessment, the jurisprudence of the ECtHR and the CJEU provides Member States with guidelines. A thorough examination of prior experiences, together with a careful evaluation of the National Pact Implementation Plans, indicates that Member States will frequently resort to detention rather than restrictions on movement. The failure to assess the necessity and proportionality of detention, or to safeguard the procedural rights of detainees, may lead to a proliferation of unlawful detention practices.
Abstract EU free movement law does not specifically address the situation of minor EU citizens. In most cases, they are merely treated as family members of their EU-citizen parents. The recognition of children as full‑fledged EU citizens requires consistent consideration of their own rights stemming from that fundamental status, however. The strengthening of the legal position of minor EU citizens is all the more necessary because of the structural inequality resulting from the concept of EU citizenship: under free movement law, children, who are dependent on third-country national parents are generally unable to qualify as their family members and, as such, invoke derived rights. The case of FL illustrates that in situations where children as well as their parents hold EU citizenship, the choice of the appropriate perspective should not be reflexive or arbitrary. Rather, it requires an assessment of the legal position of all EU citizens concerned.
Abstract On 18 December 2025, the Court of Justice of the European Union delivered two Grand Chamber judgments – Hamoudi v Frontex and WS and Others v Frontex – marking the first time that judicial actions brought against the European Border and Coast Guard Agency for fundamental rights violations survived dismissal at the admissibility threshold. Both cases concerned actions for damages under Articles 268 and 340(2) TFEU arising from Frontex-coordinated operations in the Aegean Sea. In Hamoudi , the Court held that applicants claiming to be victims of pushback operations need only adduce prima facie evidence, and that the General Court was required to exercise its investigative powers to supplement the evidentiary record. In WS , the Court established that Frontex must verify the existence of written return decisions, that Member State liability does not absolutely exclude concurrent Frontex liability. This case note analyses both rulings, identifies their convergences, and argues that while they represent a decisive step forward, their reliance on ex post remedies reveals a structural gap in the EU system of judicial protection that the upcoming reform of the EBCG Regulation must address.
Abstract This article examines how national immigration law and the EU Pact on Migration and Asylum shape the legality of bilateral migration agreements ( BMA s) in the case of the 2006 France–Senegal BMA . While research and policy documents tend to reduce BMA s to another tool of externalization of migration, the France–Senegal bilateral migration agreement is different, insofar as Senegalese nationals irregularly working in France may apply for an exceptional admission to stay. With more than 500 decisions handed down by the French Courts of Administrative Appeal between 2015 and 2025, migrants have indeed made use of this option to legalize their status. Because of the frequent recourse to this BMA coupled with the fact that judges also are compelled to engage with questions of that agreement’s legality with the EU legal order, this BMA is representative for any such agreement, the norms of which appear to be clear and unconditional enough to be directly applicable to migrants. Central to this study is an early, non-systematic screening of why and when the courts side with a migrant’s prefectorial orders to leave, and conversely, when judges instruct the immigration authorities’ to annul an order to leave and to grant stay instead. In result, insights are offered into how the bandwidth of administrative discretion is transformed. Some lessons of the Senegal-France BMA can be multiplicated for BMA s in the EU space more generally, where similar questions will arise as to how interpretative traditions at the intersection of national and EU law impact on whether courts will free up discretionary space necessary to align regularization practices to the demands of EU law.
This article analyses how the growing use of digital technologies in the European Union's (EU) migration management reflects and reinforces the securitization of immigration, and explores the resulting implications for human rights and, more broadly, for the core principles of the rule of law within the EU legal order. Drawing on securitization theory-particularly the contributions of the Copenhagen School and the Paris School-it conceptualizes digital technologies not merely as technical tools, but as security practices in themselves, embedded within broader assemblages of surveillance, control, and risk governance. The central claim is that the EU is undergoing a process of technosecuritization, whereby digital infrastructures-such as biometric databases, algorithmic profiling systems, and interoperable data networks-contribute to the normalization of exceptional governance practices at the borders and within migration procedures. These technologies facilitate a form of security-oriented governance that often escapes both democratic deliberation and effective judicial scrutiny, reallocating institutional power primarily to border control agencies and automated systems. Following a brief Introduction, Part 2 of this article outlines the conceptual framework of securitization by bridging securitization studies with legal scholarship on technology, governance and human rights. Part 3 examines key tools of EU law to show how legal norms authorize and entrench security-driven digital governance, while also assessing the consequences for human rights, fundamental freedoms and institutional balance. The Concluding Remarks offer a reflection on possible normative safeguards to ensure that the evolution of technological governance does not come at the expense of the rule of law.
The article will examine the extent and scope of States' positive obligations under Article 2 (right to life) and Article 3 (prohibition of torture) of the European Convention of Human Rights (ECHR) in the context of shipwrecks involving migrants, including those occurring in extraterritorial waters. While the European Court of Human Rights (ECtHR) has increasingly recognized States' duties to prevent loss of life and to protect individuals from inhuman and degrading treatment, the precise contours of these obligations remain contested in cases of maritime distress. We argue that States have a duty not only to undertake proactive measures to prevent such tragedies, but also to ensure rigorous post-incident accountability. This includes an obligation to investigate shipwrecks thoroughly and to institute appropriate inquiries, including criminal proceedings when necessary. The analysis will take into account the relevant ECtHR case law. We will demonstrate that the extraterritorial nature of these incidents does not have to absolve States of their responsibilities under the ECHR. In doing so, we highlight the need for a coherent legal framework to address the accountability gap and strengthen the protection of migrants at sea.
Is there an obligation under EU law to regularise irregularly staying third-country nationals? In short, Member States have to decide between the return procedure in general or regularisation according to the Return Directive. Member States may grant a right to stay, i.e. regularisation, at each stage of the return process. If return is not possible due to various reasons, Member States may regularise irregularly staying third-country nationals. The CJEU made it clear in its case law that the Return Directive leaves the Member States the possibility to regularise irregularly staying third-country nationals. However, it is disputed according to the relevant and recent CJEU case law (2014-2025) and different scholarly opinions whether Member States are obliged to grant irregularly staying third-country nationals a right to stay under the Return Directive. Despite the case law of the CJEU the author of this contribution argues that Article 6(4) Return Directive stipulates such an obligation to regularise in three cases (real risk of refoulement, permanent non-returnability and the best interest of the child). In all three cases the discretion afforded to the Member States under the first sentence of Article 6(4) Return Directive is removed entirely as the option to return is not enforceable. This contribution deals with the question of how this right to regularisation derived from Article 6(4) Return Directive relates to fundamental rights. The context of this contribution is the relationship between EU law and ECHR rights more generally as well as between EU law and national competences.
This article examines the Turkish Constitutional Court's (TCC) jurisprudence on migration control in the context of the European Union's externalisation of asylum responsibilities following the 2016 EU-Turkey Statement. While the Statement operationalised the designation of Turkey as a "safe third country" and "first country of asylum," this assumption has remained legally and empirically contested. Drawing on an original dataset of individual applications lodged before the TCC between 2016 and 2025, the article analyses how constitutional adjudication has responded to deportation, administrative detention, and so-called "voluntary return" practices shaped by externalisation. It argues that the TCC occupies an ambivalent position between resistance and restraint: on the one hand, it has identified violations of the prohibition of ill-treatment, the right to liberty, and the right to an effective remedy; on the other, it has relied heavily on procedural dismissals and individualised reasoning that leave structural deficiencies unaddressed. The article situates this jurisprudence within its political context and evaluates its implications for the EU's reliance on Turkey as a provider of "effective protection" under European asylum law.
This article presents the findings of an empirical study on the functioning of Italy’s forced return monitoring mechanism, established under Article 8(6) of Directive 2008/115/EC . It offers a fresh empirical perspective on human rights monitoring practices by examining the ethical and methodological dilemmas faced by monitors in the field. The study highlights the model of forced return monitoring that has developed in the Italian context, revealing that monitors often struggle to find the right balance between a passive, observational role and a more proactive, engaged approach. This tension is further complicated by the limitations of existing standards and guidelines – largely shaped by the European agency Frontex – which many Italian monitors perceive as inadequate for addressing the practical challenges they encounter.
In recent years, the EU has strengthened its commitment towards the eradication of violence against women, yet progress in the field of asylum remains limited. The international framework of protection is still embedded in patriarchal dynamics, which are replicated by the European legal system. In the upcoming Qualification Regulation, gender considerations are still scarce. Despite the availability of both non-binding ( UNHCR guidelines) and binding (Istanbul Convention) gender-sensitive resources, current EU standards fall short. Although the three recent CJEU rulings (WS, K and L and Afghan Women) hint at progress, such as recognizing women as a Particular Social Group ( PSG ) and granting refugee status based on gender without individual assessment, they also reveal persistent gaps. Ultimately, the Court’s stance reflects an early stage of case law and calls for continued judicial engagement to build a more robust and intersectional standard of protection.
Climate change is increasingly recognized not only as an environmental crisis but also as a major driver of involuntary human migration. Yet, despite the scale of climate-induced displacement, international legal frameworks – including the 1951 Refugee Convention – fail to recognize or protect those forced to flee the impacts of climate change. This article explores how European Union law and policy addresses the legal and humanitarian challenges posed by climate-induced migration. The analysis centers on three policy instruments: the European Green Deal, the European Union Strategy on Adaptation to Climate Change, and the European Climate Law. It argues that while these instruments do not provide legal protection for persons displaced by climate-related events, the European Union Temporary Protection Directive ( TPD ), successfully invoked in response to the war in Ukraine, could be interpreted and extended to apply to climate-induced migrants. The article then goes on and suggests that a rights-based and solidarity-driven reading of EU law could open pathways for more inclusive and adaptive legal protections. By doing so, the article highlights the urgent need to bridge the gap between climate governance and human mobility in EU legal and policy responses.
Migration prediction or forecasting is an emerging predictive IT method in migration governance. Advocates of migration prediction argue that forecasting migratory flows could enhance humanitarian preparedness and overall support the management of migration. However, while migration flow predictions could potentially be beneficial, they risk jeopardizing fundamental rights. Building on our previous work on the human rights challenges of migration prediction, this article zooms into the reliability of migration prediction. The article unearths persistent and deep-rooted muddling of legal definitions used in predictions and their inconsistent use, sometimes due to cross-disciplinary confusion and sometimes due to unresolved legal debates shaped by political undertones. It revisits terminological debates regarding the legal definition of `migrants' and `refugees' to argue in favour of an inclusive understanding of the term migrants as an umbrella term but is concerned that there is no coherence in the use of these terms by various stakeholders in predicting migration, including the main organisations producing datasets. The article concludes that contrary to the much-celebrated use of IT in predicting migration, the unreliability of such emerging data seriously undermines any `added value' of such predictions to humanitarian preparedness and migration management.
The 2024 Pact on Migration and Asylum formalizes the EU's externalization of migration control by relying on partnerships with third countries to prevent refugees and migrants from reaching EU territory. This article analyzes the newly defined "external components" of the comprehensive migration and asylum strategy against the backdrop of evolving, fluid border concepts and legal frameworks, emphasizing challenges around jurisdiction, accountability, and human rights protection. Although the Pact rhetorically affirms "full compliance" with international and EU law, it operates within a hyper-legalistic framework that enables states to evade their substantive obligations. Drawing on historical cases such as Italy's cooperation with Libya and the Italy-Albania Protocol, the article shows how Member States' partnerships serve as testing grounds for de-and re-territorialization strategies that circumvent international duties, avoid jurisdiction over human rights violations, create accountability gaps, and produce lawless zones.
This article examines the evolving jurisprudence of the CJEU concerning Palestinian applicants for refugee status under Article 1D of the 1951 Refugee Convention, as implemented in European law through Article 12(1)(a) of the Qualification Directive. It explores the unique legal framework applicable to Palestinian refugees, whose protection needs are addressed outside the architecture of the Refugee Convention. The article provides a brief overview of Article 1D, its interpretation by the CJEU, and contrasts these judgments with the positions of the UNHCR. The article also addresses the implications of the deteriorating situation in Gaza, UNRWA’s operational challenges, and the potential cessation of its mandate.
European states continuously adopt harmful migration control practices. While human rights litigation remains the main avenue for accountability, it often fails to hold perpetrators responsible or prevent future violations. This article addresses the under-explored potential of domestic criminal law to litigate state-perpetrated harms against migrants, focusing on pushbacks in Croatia. Drawing on ethnographic fieldwork and qualitative analysis of 263 testimonies, it identifies various pushback practices as crimes under Croatian law. However, practical challenges and the absence of convictions reveal the limits of this approach. Still, adopting a criminal law perspective intersects with human rights litigation and helps redirect attention from the overstated criminality of migrants to the crimes committed against them by the state. Hence, this article positions criminal law as a strategic and conceptual tool for understanding and challenging European migration control practices.
