Differentiation in the EU Migration Policy: The 'Fractured' Values of the EU

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Table of Contents: I. Introduction. – I.1. From initial rejection to acceptance of differentiated integration as an institutional feature of the EU migration policy. – I.2. The “migration crisis” and the “fractured values” of the EU migration policy: differentiated integration as an indicator or a catalyst? – II. Differentiation as a governance tool: the intergovernmental roots of the EU migration policy. – II.1. Defining EU migration policy. – II.2. The evolution of the EU migration policy: from a purely intergovernmental to a quasi-fully integrated policy. – II.3. The institutional challenges of differentiation for EU migration policy: defining the territorial scope of EU migration law. – III. Intersecting the migration’ and rule of law “crises”: Unveiling a deeper layer of differentiated integration? – III.1. From the institutional to the normative dimension of differentiation in the EU migration policy. – III.2. Worlds apart? The dis-connection between the rule of law and migration “crises” in the case law of the CJEU. – IV. Final remarks.

Abstract: As with the whole Area of Freedom, Security and Justice (AFSJ), EU migration policy is one area of EU policy-making in which differentiated integration has found its clearest expression. Owing to its intergovernmental roots, differentiated governance has been considered the necessary compromise for a deeper integration in this policy field since the Amsterdam Treaty entered into force. The adoption of flexible mechanisms aimed to accommodate the political interests of some Member States. While many of the technical intricacies related to this special institutional set-up have now disappeared in the aftermath of Brexit, looking at the possible intersections between the recent migration and rule of law “crises” has brought to the fore a more serious form of disagreement between the Member States on the deeper values – or the possible absence thereof – with respect to EU migration policy. This has become especially clear in the way in which the Court of Justice of the EU (CJEU) seems to have adopted a disconnected approach in its case law relating, respectively, to the “rule of law crisis” and the “migration crisis” so far. This Article argues that beyond the fragmented scope of the EU migration policy caused by differentiation, lies a deeper “fracture” on the values that underpin it. In this sense, it invites for a more careful examination of what could become a widening gap by examining especially the relevant case law of the CJEU on asylum in the aftermath of the “migration crisis”.

Keywords: migration crisis – differentiated integration – intergovernmental – rule of law crisis – asylum – values.

European Papers, Vol. 7, 2022, No 2, pp. 909-928
2499-8249 - doi: 10.15166/2499-8249/586

* Assistant Professor in EU Law, Dublin City University, janine.silga@dcu.ie.


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