Adjudicating Asylum as a Technical Matter at the European Court of Justice: Neglecting Human Rights When the CEAS Appears to be in Jeopardy
Forthcoming in E. Kassoti and N. Idriz (eds.), The Informalisation of the EU’s External Action in the Field of Migration and Asylum, Global Europe: Legal and Policy Issues of the EU’s External Action, 2022
iCourts Working Paper Series, no. 278
22 Pages Posted: 1 Mar 2022
Date Written: January 10, 2022
The political sensitivity and growing informalisation of EU asylum governance has only increased the importance of the role that non-majoritarian institutions such as the European Court of Justice play in it. Yet, a systematic analysis of the Court’s jurisprudence casts doubts onto its ability to remain immune to the shifts in (con)temporary political winds blowing through the Union. In fact, an empirical study of all asylum-related preliminary rulings reveals a disquieting trend: the Court has adopted an administrative, passivist role within the area. Its distinguishing features include an overzealous concern for the technicalities of the legislative instruments before it and sparse to no references to human rights instruments or values in the operative parts of the judgments. In light of the symbolic power carried by the Court’s language, this trend risks sending the wrong signal to national judicial instances; namely, that concerns for the system can legitimately trump concerns for the individuals caught in it.
Keywords: European Court of Justice, asylum policy, migration, judicial reasoning, effectiveness, human rights
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