Comparative Report: Legal and Policy Framework of Migration Governance
Year: 2018
Type of text: Rapport
Published by: University of Florence in the framework of EU project RESPOND
Language: English
Author: Paola Pannia, Veronica Federico, Andrea Terlizzi and Silvia D’Amato
Pages: 78
Available at: https://doi.org/10.5281/zenodo.1458945
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Short description of text
“this report discusses the most relevant trends underlying legislative and policy measures implemented between 2011 and 2017 in Austria, Germany, Greece, Hungary, Iraq, Italy, Lebanon, Poland, Sweden, Turkey, and the United Kingdom, in the light of critical literature and scholarly debate. The aim is to provide a comparative legal and institutional analysis of migration governance across countries, highlighting trends and similarities, as well as differences and relevant inconsistencies in the response to mass migration.” (8)
Most important results
“However, despite these national, regional and international obligations, an overall restrictive approach can be observed. In fact, in all RESPOND countries physical measures (migrant pushbacks, border walls and securitization, border controls) and procedural measures to prevent and restrain access to international protection conflate with an overall downgrading of foreigners’ entitlements.” (8)
“In all countries, the legal framework concerning migration and asylum/international protection is extremely complex and hypertrophic. In each country, legislation has been changing continuously and not necessarily coherently, frequently law makers resorting to decrees instead of proper statutes/acts of Parliament. The outcome is a stratified legal framework, that is extremely fragmented and difficult to be consistently interpreted and implemented. Therefore, the legal enforcement and guarantee of fundamental rights is jeopardized, and often it largely depends on the discretionary power of single offices and individuals. Against the fundamental axiom of legal certainty and predictability, the legal status of migrants and asylum applicants is more and more based on uncertainty.
The fragmentation of legal guarantees and protection is further exacerbated by the multiplicity of entities involved in the “multilevel” and subsidiary-based management of migration flows: all tiers of government (from supra-national to local) are involved, with different, often overlapping, competences. Third sector actors are also part of national migration management mechanisms, making the picture even more complex and fluid.
Moreover, Courts may play a relevant role as well. Judges are crucial on the one hand, for granting remedies to those whose rights have been violated, and, on the other hand, for providing sound interpretations of legal provisions. But, their interventions may also result in a further fragmentation and personalization of rights’ entitlements and guarantees. “ (8-9)
“The country presenting the largest share of positive decisions compared to the total in 2016 is Austria (72%), followed by Sweden (70%), Germany (69%), Italy (39%), the United Kingdom (32%), Greece (24%), Poland (12%) and Hungary (8%). “ (19)
“In Hungary, Poland and Sweden, the majority of positive decisions were grants of subsidiary protection status” (20)
“If only final decisions – namely those decisions taken by administrative or judicial bodies in appeal or in review and which are no longer subject to remedy – are considered, the peak was reached again by Germany in 2017 (158,085), of which 63,750 (40%) were positive (see Appendix, Table 8). The second highest number of positive decisions was issued by Sweden (18,920), followed by Italy (12,590), the United Kingdom (12,470), Greece (9,545), Austria (6,955) and Poland (1,770).“ (20)
“The urgency for a clearer and efficient cooperation among all the actors involved has been recently addressed also in Sweden, where a decentralized system applies under the responsibility of the Ministry of Justice. Reportedly, before 2013, migrants used to engage with about 40 different governmental officials during the whole asylum procedure and after (Swedish Migration Agency, 2017: 7). To solve these problems, in 2014, a memorandum of understanding was signed with all the relevant authorities in order to boost dialogue and cooperation (Shakra et al., 2018). “ (31)
“As a long-term, durable solution27, resettlement undoubtedly represents a fundamental tool for providing refugees with sound legal protections and guarantees. Although the number of people effectively resettled turned out to be much lower than pledges made by States in 2017, more than 26,400 refugees were resettled to Europe, the majority of whom were transferred to the UK, Sweden and Germany (UNHCR, 2018a: 17; Chemin, 2018). “ (34)
“The institutional landscape has added further complexity, given the multiplicity of entities involved in the “multi-level” and subsidiarybased management of migration, with different, often blurring, responsibilities. As a consequence, the legal enforcement and guarantee of fundamental rights is jeopardised and too often it depends largely on the discretionary power of single offices and individuals. “ (61)
“In sum, the legal uncertainty that asylum applicants face in various RESPOND countries can sometimes be seen as a formidable tool of migration containment and control. Furthermore, the precariousness of legal statuses not only weakens asylum applicants, raising frustration and anxiety, but also broadens the discretion of authorities, paving the way to a legal twilight zone. “ (61)
Theoretical perspective/framework
“RESPOND research, in fact, assesses migration management tools and measures against the parameters of respect for fundamental rights entrenched at international level.” (10)
Method
Policy analysis
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