THE GROWING BUT UNEVEN ROLE OF EUROPEAN COURTS IN (IM)MIGRATION GOVERNANCE: A COMPARATIVE PERSPECTIVE

The context in which European and domestic courts adjudicate migrants' rights has never been more complicated than it has been in recent years. A socio-political reality of sequential crises (economic, refugee, rule of law and Covid-19) has empowered the executive to make decisions with regard to migration with minimal legislature and judicial supervision and launch 'open attacks on case law'. The ever-increasing number of persons in need of access to asylum is likely to increase even further over the next decade. Nevertheless, States have increasingly implemented deterrence policies (e.g. push-and pullbacks, walls and fences, variegated forms of detention, and exclusion from procedural and socio-economic rights), which have limited individuals' access to asylum proceedings and socio-economic rights, violating international obligations to observe the principle of non-refoulement and protect fundamental rights. Such barriers have resulted in increasing casualties, leading to an unaddressed humanitarian crisis. Moreover, we argue that these policies gradually erode the right to asylum, transforming it into a theoretical construct, accessible in practice to only the very few refugees who are not caught by these containment practices. As Alison Mountz has lamented, these tendencies may ultimately prove to be signs of 'the physical, ontological and political death of asylum itself'.