Immigration Article of the Day: The “Crisification” of Migration Law: Insights from the EU External Border” by Violeta Moreno-Lax
The “Crisification” of Migration Law: Insights from the EU External Border by Violeta Moreno-Lax, forthcoming in: Stella Burch Elias, Kevin Cope and Jill Goldenziel (eds), The Oxford Handbook of Comparative Immigration Law (Oxford: Oxford University Press, 2023)
Abstract
Migration has long been perceived and administered as a ‘crisis’ by (reluctant) countries of destination in the Global North, including the Member States of the European Union (EU). The ‘crisis’ framing allows for the characterisation of (unwanted) migration as an anomaly calling for the adoption of ‘exceptional’ (typically restrictive) measures, which eventually consolidate into standard policy, such as the routine fingerprinting of asylum applicants or the administrative detention of unauthorised migrants. The presentation of migration and asylum events as ‘crises’ serves to justify extraordinary responses that suspend the usual democratic processes of deliberation and contestation in favour of urgent mechanisms intended to quickly address and fix the situation. The ‘crisis’ narrative and its conceptualisation as an ‘exception’, rupturing the normal course of law- and policy-making, facilitate deterrence and coercion to become entrenched as structural and � �necessary’ features of the system of migration governance and border control. The strategy demands for attention to focus on the ‘here and now’ of crisis scenarios, adopting measures that typically curtail the rights and freedoms of people on the move. What is more, ‘crisification’ allows for a form of targeted exceptionalism that enables authorities to address specific situations. Differently from a state of emergency/exception, that generally applies on a blanket basis to the entire population, ‘crisis’ can be utilised to circumscribe restrictions and aim them at specific segments (like unauthorised migrants) for (in principle) a limited duration. ‘Crisis’ mobilises the resources of the state of emergency/exception, but in a selective, focused way.
Against this background, this paper uncovers how ‘crisification’ (as process and strategy) has permeated the EU migration and external borders acquis (and led to its securitisation) becoming a system of governance in its own right. I will argue that the violence characteristic of EU border controls, is a consequence of ‘crisification’, which produces very distinct corroding effects on the legal protections of refugees and migrants. Drawing on the 2016 EU-Turkey Statement and the reaction to the 2021 Belarus ‘crisis’ as illustrations, my main contention is that the presentation of migration and asylum events as ‘crises’ has been utilised in the EU not only to justify measures and practices outside the bounds of ‘normal’ politics but that it has also targeted and fundamentally transformed the legal order, allowing for legalised expansions of power and for contractions of pre-existing legal safeguards, leading to the re-configuration of the EU acquis in this field. The paper will demonstrate how invocations of ‘crisis’ enable the normalisation of legal and policy developments at odds with basic principles and international standards. Two complementary phenomena demonstrate the impact of ‘crisification’ on the bo rders/migration law system: The ‘softification’ of existing hard law obligations, on the one hand, which translates into the lowering (or negation) of the individual’s legal safeguards, and the progressive hardening – or ‘lawification’ – of means and practices previously considered unacceptable, on the other hand. These two poles (the ‘softification’ of existing hard-law protections and the ‘lawification’ of violations) constitute the extremes of a continuum that is nurtured, enabled, and expanded by ‘crisification’ as a mode of governance. The final effect is an erosion of the existing standards that fundamentally transforms (and disfigures) the EU legal and policy framework regarding access control and border surveillance.
KJ