Mutual Recognition in European Immigration Policy: Harmonised Protection or Co-Ordinated Exclusion?

Abstract

The EU’s migration policy and the nature of the instruments adopted under it are likely to have an increasing impact on national migration controls, over the course of the recently adopted Stockholm Programme and beyond. Two recent examples have been the establishment of minimum procedural standards and the increasing application of the mutual recognition principle in relation to decisions on expulsion and refusal of entry to third-country nationals. This chapter examines the influences upon, and the impact of, community measures in those two fields - in particular the Return Directive - and seeks to assess what each tells us about the political dynamics behind the development of EU policies and actions in these areas, particularly in the context of the Union’s search for legitimacy through public perception of its effectiveness in assisting in the achievement of key policy goals, even if the content of these remains determined largely by national politics and national policy. A key issue is the adequacy of the guarantees in Union law of effective judicial review of decisions on admission and return. This is particularly relevant to the extra-territorial activities of the Member States and the Union, through operations co-ordinated by FRONTEX for instance. The adequacy of legal safeguards applicable to that extra-territorial migration control is briefly considered. The chapter closes by considering the relevance of opinion amongst MEPs and of national public opinion in relation to the European contribution to migration policy and what developments in this field tell us about the changing nature of the executive order of the EU.

Keywords: migration law, asylum law, european convention on human rights, EU law, European Union law, non-refoulement, Dublin Regulation, judicial review, rule of law, European law, FRONTEX

JEL Classification: K10, K19