Part III - Resilience at the National Level: Case Studies

8 In the Hands of a Populist Authoritarian The Agony of the Hungarian Asylum System and the Possible Ways of Recovery

Kriszta Kovács and Boldizsár Nagy

8.1 Introduction

EU constitutional rules require member states to be constitutional democracies. Yet, a populist authoritarian has, following Carl Schmitt’s rulebook, captured the constitutional state in Hungary and turned it into an autocracy. It need not have happened, the 2015 ‘migration crisis’ notwithstanding. The new authoritarian regime and its brutal anti-immigration rules serve the sole purpose: to secure prime minister Viktor Orbán’s firm hold on power.

European Union politicians hold the assumption that every EU member state is a functioning democracy. Therefore, member states are permitted to ignore each other’s faults, knowing that democracies are self-correcting. While it is true that democracies are capable of self-correction, today, Hungary cannot correct its constitutional problems itself.¹ In the 2010 election, the Fidesz-KDNP party got 52.73% of the list votes, but – due to the individual districts where the winner takes all – in Parliament gained 67.88% of the seats that secured constitutional supermajority, which it has mostly retained to the present day.²

Since returning to office (he had led the Hungarian government previously, from 1998 to 2002), Orbán has been working toward creating an authoritarian system.³ His autocracy is not as dramatic as its predecessors, the twentieth-century style authoritarian systems. Opposition parties and candidates are not yet banned, and the regime does not keep hundreds in prison for political dissent. It is still possible to ‘protest by word of mouth …, or if all else fails, by the extreme form of exit, leaving the country’.⁴ Yet, the election law tricks,⁵ the campaign finance laws,⁶ and the electoral bodies dominated by persons loyal to the leader may cast doubt on the fairness of the elections.⁷ Moreover, there are no functioning checks on the executive. Many observers doubt the ordinary judiciary’s independence,⁸ and hold that the Constitutional Court is effectively neutralised as a check on governmental power.⁹

The rise of authoritarianism is closely related to Orbán’s political calculations, driven by a sole purpose: to retain power and control. The restrictive asylum laws and policies are just one instrument among the many used when convenient to serve this goal. The restrictions are not a result of the domestic law’s organic development or impacts of the EU acquis. They need not have happened, all the transit through Hungary of large numbers of irregular migrants in 2015 notwithstanding. Since 2010, Hungary’s approach to forced migration has been changed substantially: a genuine international commitment gave way to an exclusionist, ethnicist position.¹⁰ This development has been coupled with the discourse of the ‘threatening other’. The ‘migrant’ in the political discourse is separated from its scholarly or legal meaning and is identified with a potential terrorist or at least a criminal, who at the same time threatens to overwhelm the thousand-year-old national ‘Christian’ culture and replace it with their own.

This chapter, first, locates this Orbanian discourse and measures it in a Schmittian paradigm. The theory of Carl Schmitt helps us make sense of Hungarian constitutional developments because Orbán has continuously concentrated on the political friend and the foe to maintain a permanent ‘crisis’ situation. Second, the chapter shows how the authoritarian goals determined the management of regular migration and the control of irregular migration and especially asylum. Most of the rules applicable during the fictitious ‘state of crisis caused by mass immigration’ contradict the EU measures and breach international asylum law. The changes introduced under the pretext of anti-pandemic measures in July 2020 eliminated access to protection.

One might wonder whether it makes a difference that all this is happening in an EU member state. The chapter argues that this ‘external constraining force’ is relevant both in the context of migration and the possibilities of democratic resistance.¹¹ There is a potential for legal resistance on the international and EU level, and domestically, techniques of resistance developed during feudalism (e.g., the tradition of free cities or ‘passive resistance’) and socialism (e.g., samizdat) are to be mixed with those based on the leftover of the rule of law regime.

8.2 Following the Schmittian Rulebook

Today, scholars identify the behaviour of authoritarian nationalists with the term ‘populism’. For instance, Lazaridis and Konsta¹² – after noting the divergent interpretations of the term ‘populism’¹³ – set out three general characteristics of today’s populists: they speak on behalf of the national community as if it was a culturally, religiously, and linguistically homogenous genuine community sharing the same values; they accuse the political elite and the intellectuals of being undemocratic, ‘incapable, unproductive, and privileged, distant or alienated from the people, or lacking in the plebiscitarian quality of common sense’;¹⁴ and identify a threatening other – one or more groups whose members allegedly undermine the community’s values or prosperity.

Indeed, today’s populist authoritarian nationalists concentrate on the concept of identity as a tool for determining who belongs to the mass that may be defined in ethnic, religious or linguistic terms. They use the language of the malign ‘other’, in which the other is a group considered not to belong to the mass because it differs in some key characteristics. However, this claim of today’s populist authoritarian nationalists is not new. They go back at least to Carl Schmitt’s interwar theory of ‘democracy’,¹⁵ at the heart of which is the idea of a unified will of the homogeneous people, embodied in the unitary sovereign’s distinction between the friend and foe.¹⁶ Schmitt held that democracy, properly understood, is an attempt to establish a ‘genuine identity’ between rulers and the ruled.¹⁷ The ruled are the people who exist in their ethnic and cultural ‘oneness’,¹⁸ which ensures the community’s strict internal homogeneity. The ruler may be a directly elected unitary sovereign who acts as an authentic representative of the people by symbolically incarnating the identity of the people and whose primary mission is to guarantee the political entity’s self-preservation.

The most appealing part of the Schmittian conception for today’s populist authoritarian nationalists is that at the basis of every constitution is an indispensable, unitary sovereign, who, at the moment of an unpredictable crisis, can break free of the rule of law and assert his pre-legal authority. This situation is what Schmitt calls the state of exception (Ausnahmezustand), which refers to a completely abnormal situation, where the continued application of the normal legal rules and rights prevents effective action from ending the exception.

Notably, there is a difference between the state of emergency and the state of exception. The notion of the state of emergency refers to public emergencies in democracies, such as national security crises, including, for instance, terrorist attacks, but also economic catastrophes and technological or natural disasters, such as pandemics. During a state of emergency, democratic state institutions function normally, although the distribution of power is modified in favour of the executive to manage the crisis. But a state of emergency provides only the conditions for exercising otherwise legitimate power. It is an underlying principle that ‘the executive is not permitted to use emergency powers to make any permanent changes in the legal/constitutional system’.¹⁹ Thus, in a case of emergency, a democratic regime is typically a temporarily modified constitutional democracy. Some constitutional rights are restricted, with the primary purpose of emergency being to restore the democratic legal order and the full enjoyment of human rights.

Ausnahmezustand, however, is a lawless void when there is an order, but the order is not a normative, rather a factual one, where ‘the state remains, whereas law recedes’.²⁰ The application of the normal legal rules and rights is suspended by the unitary sovereign’s decision on the ground that the situation is abnormal: ‘The exception is that which cannot be subsumed: it defies general codification, but it simultaneously reveals a specifically juristic element – the decision in absolute purity’.²¹ The unitary ‘sovereign is he who decides on the exception’²² and on ‘whether the constitution needs to be suspended in its entirety’.²³ Thus, the state of exception is constituted by the sovereign’s personal decision: the sovereign decides both when there is a state of exception and how best to respond to that situation. That decision for Schmitt is one which is based on the political consideration of who is a friend and who is an enemy of the state.²⁴ Instead of openly discussing competing ideas in public, the uncontrolled sovereign has the exclusive power to make political distinctions between friend and foe constantly. Schmitt asserted that the differentiation of the people from the foe was inevitable because the foe threatened the existence of the political entity. However, the ‘existential’ enemy need not be an external one; he can very well be a domestic political opponent;²⁵ furthermore, he ‘need not be morally evil or aesthetically ugly, he need not appear as economic competitors, and it may even be advantageous to engage with him in business transactions’.²⁶

Hence, the distinction between the political friend and foe is needed to create a ‘crisis’ situation, where the ordinary norms are suspended. As we will see in the next section, a whole array of processes has been created in Hungary since 2010 in response to some ‘crisis’ situation.

8.3 In a Permanent State of Crisis

Already the 2011 constitution of the Orbán regime – officially named ‘Fundamental Law’ – was adopted with reference to a crisis: the 2008 global financial crisis and its consequences.²⁷ A couple of years later, citing the 2015 migrant crisis threat, the Hungarian government, alone in the EU, declared a mass migration emergency. Migration was not among the constitutionally listed situations that might justify the introduction of emergency rule. So, the government used article 15(1) of the Fundamental Law – ‘The government shall exercise powers which are not expressly conferred by laws on another state body’ – to declare a ‘state of crisis caused by mass immigration’,²⁸ entitling itself to suspend or deny fundamental rights not only to the ‘migrants’ but to the inhabitants of the country as well. The conditions of introducing the state of crisis have never been met, as neither the numbers required for its introduction materialised nor the threats that would entitle the government to announce it even if the number of arriving irregular migrants was below the threshold.²⁹ No other EU member state declared a state of crisis to deal with the refugee problem, not even states that were the ultimate destination of asylum-seekers. Although in 2019, the European Commission declared the migrant crisis to be over,³⁰ the Hungarian state of crisis is still in effect. The government renews it every six months, most recently on 3 September 2021, even though the border with Serbia is hermetically sealed, and in principle not a single irregular migrant can enter Hungary’s territory.³¹

In addition to the ‘state of crisis caused by mass immigration’, a constitutional amendment was adopted to make it possible to declare a ‘state of a terrorist threat’ to ‘manage the adverse results from the migration crisis, including threats of terrorism’. This amendment followed the Schmittian tradition: it allowed the government to declare the ‘state of a terrorist threat’ on its own, and there was no need to have the Parliament’s approval; so the government could decide both that there was a threat and how to respond to it. All this happened in a country that has not seen a severe terror attack within its borders yet. Although the government, in a demagogic way, has connected the issue of migration with the problems of terrorism, militant fundamentalism is absent in the country.³²

Since 2015, Hungary has been in a permanent ‘state of crisis caused by mass immigration’. On top of that, in 2020, the government declared the ‘state of danger due to the coronavirus pandemic’, and later a third one, a ‘state of medical preparedness’.³³ And with a constitutional amendment,³⁴ a further step has been taken on the road to full-out authoritarianism. It broadens the situation in which emergencies can be declared, and government decrees become the default because the amendment erased any meaningful role for the Parliament.

In short, this section demonstrated that the way Hungary has declared a ‘state of crisis’ displays characteristics of the Schmittian state of exception³⁵ characterised by a de facto unlimited authority of the executive. Looking at the interrelationship of the democratic decay and the restrictive rules on forced migration facts suggest that the restrictive rules on migration emerged as part of the larger scheme aiming at the concentration of power and generating a loyal constituency, the loyalty of which derives from the vision of a leader who protects it from the ‘foe’.

8.4 Autocratisation in the Context of Migration

8.4.1 Constitutional Narratives and Developments

A discourse that securitises the ‘migrant’,³⁶ and represents the arriving irregular migrants as the threatening ‘other’ has dominated the Hungarian political scene since the 2015 arrival of asylum seekers.³⁷ The government has treated asylum seekers as foes labelling them as ‘migrants’,³⁸ and launched national consultations on ‘illegal migration’ and terrorism.³⁹ However, the threatening other is not just the ‘migrant’, but the ‘forces’ behind the migrant: the ‘financiers’, especially George Soros, the ‘pro-refugee’ NGOs in alliance with the political left.⁴⁰ The EU (‘Brussels’) is also the threatening other in the field of immigration, against which a firm immigration policy must be upheld.⁴¹ Besides, those who insist on the idea of an open society and promote the ever closer union of the people of the EU are also collaborators against whom the ‘real’ patriots must ally.⁴²

This discourse enables the oppression of various democratic actors, including human rights defenders and NGOs helping refugees and creates synergies with other legal measures destroying constitutional democracy.⁴³ The protagonist of this discourse, Orbán’s government, claims to be the only force capable of containing the threat, with the help of the exceptional powers they vindicate.

A quick look at the constitutional developments related to migration and asylum reveals how the approach to migration has changed over time, how a genuine international commitment gave way to an exclusionist, ethnicist position. Until the 1989 democratic transition, the Hungarian constitution promised to ‘grant’ asylum to those who are persecuted for their activities promoting ‘democratic behaviour, social progress, the liberation of people and the defence of peace’.⁴⁴ The 1989 democratic constitution led to the gradual incorporation of the essential elements of the Geneva Convention relating to the Status of Refugees, albeit until 1997 it also recognised persecution based on ‘language’.⁴⁵ Asylum became a right, not an optionally ‘granted’ privilege. In 1997, a limitation on the right to asylum was introduced in the constitution based on the twin concepts of a safe country of origin and a safe third country. Asylum was to be granted only to those to whom these did not apply.⁴⁶ This restriction was in line with the emerging rules within the European Community as it was.⁴⁷

For years, the Fundamental Law contained the definition of the Geneva Convention entitling to asylum (with the above two exceptions) and the prohibition of mass expulsion and refoulement.⁴⁸ The text had not changed until 2018, when the Fundamental Law’s seventh amendment entered into force, introducing new rules on regular migration and asylum.⁴⁹ They stipulate in Article XIV (1), ‘No foreign population shall be settled in Hungary. A foreign national, not including persons who have the right to free movement and residence, may only live in the territory of Hungary under an application individually examined by the Hungarian authorities.’ The first sentence does not make sense since ‘foreign population’ is not an expression defined anywhere in Hungarian law, and ‘settling in’ does not have a meaning under migration law.⁵⁰ Thus, the whole sentence is a populist slogan with the undertone of protesting against possible relocation or resettlement due to an EU decision.⁵¹

Paragraph (4) of the same article re-wrote asylum law and deviated from the Geneva Convention by adding the qualifier ‘direct’ to persecution. So ‘well-founded fear of direct persecution’ is required to qualify as a refugee. The rule contains another serious deviation from international law, as it excludes from refugee status and asylum any person who ‘arrived in the territory of Hungary through any country where he or she was not persecuted or directly threatened with persecution’. That is much less than a safe third country concept, especially as codified in the EU’s Procedure Directive (PD).⁵² Subsidiary protection did not find its way into the Fundamental law; only minimalist non-refoulement rule is found in Article XIV (3).

8.4.2 Regular Migration

In the context of regular migration, the Hungarian immigration policy is ethnicist and economically utilitarian. In principle, the government has a migration policy⁵³ – at least with regards to inward migration – but the government never invokes that document, and the public discourse eliminates it as well.⁵⁴ Consequently, the Hungarian migration policy can only be deducted from the rules and the legal practices that, notably, entirely contradict the government rhetoric that condemns ‘migration’ in all of its forms.⁵⁵ In practice, Hungary encourages certain types of regular migration and actively seeks certain migrants from third countries. The ethnonationalist element is evident in the encouragement of the migration of those who were ‘formerly a Hungarian citizen and whose citizenship was terminated, or whose ascendant is or was a Hungarian citizen’.

The indirect inducement to immigration is also evident in the enhanced naturalisation of those ‘whose ascendant was a Hungarian citizen or who is able to substantiate of being of Hungarian origin … if he/she proves that he/she is sufficiently proficient in the Hungarian language’.⁵⁶ The rule’s focus is not on descendants of those former Hungarian citizens who became citizens of another country because of political changes they could not control but generally on transborder minorities. Since no time frame would restrict the tracing of Hungarian ancestry, the rule led to the naturalisation of more than one million foreigners, who are entitled to settle in Hungary.⁵⁷ They may also vote in the national elections without moving to Hungary.⁵⁸

Other examples of how Hungary encourages immigration include the ‘Stipendum Hungaricum’ program that aims at third-country nationals of less developed countries;⁵⁹ active programs to recruit foreign workers from third countries, like Serbia and Ukraine;⁶⁰ and the Hungarian Residency Bond Program that existed between 2013 and 2017.⁶¹

8.4.3 Asylum

Whereas regular migration is governed with ethnicist or utilitarian economic preferences, without being admitted in government communication, the measures affecting asylum seekers and their helpers perfectly reflect the government’s intentions. It turns merciless when it comes to the so-called ‘irregular’ migrants.⁶² The process may be dissected into four branches, each one of which will be addressed below.

8.4.3.1 The Ordinary Asylum System

The Asylum Act has been amended twenty-one times between January 2013 and August 2020, its implementing regulation twenty-three times.⁶³ The last amendment of the Act genuinely seeking harmony with the EU acquis was adopted in 2015 and improved asylum seekers’ access to the labour market, eliminated the concept of manifestly unfounded applications and replaced it with different accelerated procedures,⁶⁴ reflecting those in the PD.⁶⁵ Unaccompanied minors got better protection. The chance to re-open an abandoned procedure was also granted. All amendments after the Summer of 2015 were either technical (reflecting changes in the rules of administrative procedure and organisation) or were steps in destroying a fair and dignity-respecting asylum system.

The regular refugee status determination procedure still exists even if it has been rarely applied since 2015. It incorporates critical points that are relevant to the discussion of restrictive practices. Undocumented asylum-seekers who invoke persecution by a non-state actor may be obliged to contact their home country to prove their own identity.⁶⁶ Asylum detention was applied too widely.⁶⁷ Certain deadlines are very short. Appeals have no suspensive effect except in safe third-country cases and late-submission cases. Inadmissible are not only applications where the safe third-country clause could be invoked, but also in case the applicant arrived ‘through a country where he/she is not exposed to persecution … or to serious harm … or in the country through which the applicant arrived in Hungary adequate level of protection is available’.⁶⁸ A major concern was that courts had no right to overturn the administrative decision and recognise the applicant as a person in need of protection in an appeal against refusal at the administrative level. They could only return the case to the authority and order a new administrative procedure.⁶⁹ The ECJ in the Torubarov and PG cases found this in breach of the right to an effective remedy.⁷⁰ The ECJ declared that national courts must overturn the denials of protection if the case returns to them for a second time, after the administrative authority again rejects the application, in disregard of the first decision of the court overturning the original administrative decision. It can also be mentioned that in 2016, practically all integration assistance to persons recognised in need of protection was taken away.⁷¹ Beneficiaries of international protection are allowed to stay in a reception centre for one month and receive fundamental health care for half a year. That is all.

The above concerns tend to be abstract in 2021 as the applicability of the rules to which they relate is essentially denied by the rules adopted in July 2020 to be discussed in the next Section. But even before 2021, they were hardly applied as most people were subject to the exceptional regime in place at times of ‘the state of crisis caused by mass immigration’.

8.4.3.2 The System Applicable during a ‘State of Crisis Caused by Mass Immigration’

The system established by Sections 80/A–80/K of the Asylum Act includes rules and measures that are incompatible with human rights principles and the international and EU asylum laws that bind Hungary.⁷²

The fence at the Hungarian-Serbian and the Hungarian-Croatian border was completed in 2015. They prevent access to the territory. Even if contacted by persons on the other side of the fences, the authorities ignore any expression of the wish to seek international protection in Hungary. According to Article 80/J, anyone found in an irregular situation within Hungary is to be ‘led through’ a gate in the fence, without the start of an asylum procedure or an aliens’ law procedure.⁷³ The removal measures are taken in the absence of any prior administrative or judicial decision. In essence, that is an extra-legal collective expulsion without any rule of law guarantee and any official record. Hence, asylum seekers are prevented from entering or are forcibly and informally removed.

After the Grand Chamber judgment in ND and NT v. Spain that unequivocally established Spanish jurisdiction in respect of those storming the Melila fence, there remains no doubt that persons on either side of the fence are under Hungarian jurisdiction (especially as they are on Hungarian territory on the Serbian side of the fence as well).⁷⁴ Therefore, being sent back to Serbia against their will – while being under the exclusive and continuous control of the Hungarian authorities – amounts to ‘expulsion’ for Article 4 of Protocol No 4. Moreover, this is corroborated by the judgement in the MK and others v. Poland case,⁷⁵ which leaves no doubt that returning asylum seekers from the border amounts to collective expulsion even in the case where a brief interview is conducted with them and the fact notwithstanding that the expulsion on each occasion may only affect a few persons.⁷⁶

The Grand Chamber’s reasoning in ND and NT that led to the finding that Spain has not violated the prohibition on collective expulsion does not apply to the Hungarian situation. In contrast to the Spanish situation (as interpreted by the Grand Chamber) in Hungary, there are no genuine and effective legal ways open to submit an asylum application when arriving at the border, and the individuals escorted to the border from inland had not been involved in a violent storming of the fence. At no point are apprehended persons subjected to any procedure, other than the ‘escort’ back to the door in the fence.⁷⁷

Moreover, it was recognised in the Grand Chamber judgment in the Ilias and Ahmed case that the return of asylum seekers from Hungary to Serbia entailed a threat of breach of Article 3 ECHR, and therefore could amount to refoulement, which was not the case in ND and NT in respect of Morocco.⁷⁸

Pushbacks have been accompanied by violent acts against irregular migrants.⁷⁹ Non-access to territory is accompanied by non-access to the procedure. Only one person per working day was admitted to each transit zone, limiting the applications to ten per week.⁸⁰ That practice certainly did not meet the requirement set out in the ND and NT judgment: the Schengen external border states must

make available genuine and effective access to means of legal entry, in particular border procedures for those who have arrived at the border. Those means should allow all persons who face persecution to submit an application for protection, based in particular on Article 3 of the Convention, under conditions which ensure that the application is processed in a manner consistent with the international norms, including the Convention.⁸¹

The practice was that people forced back to Serbia have to wait months, if not years, to be allowed to enter the transit zone.⁸²

Even those who finally managed to enter the transit zone and submit an application faced further grave breaches of their human rights and EU entitlements. First, they were subjected to a procedure that is incompatible with the border procedure as enshrined in Article 43 of the PD, as the Hungarian ‘crisis procedure’ does not limit the detention to four weeks.⁸³ Second, the national procedure is incompatible with the rules on the detention of asylum seekers, as enshrined in Articles 8–11 of the RCD since it is extended to persons who do not fall into the taxatively listed six groups.⁸⁴ Moreover, the automatic detention of all asylum seekers entering from the Serbian side breached the obligation to consider alternatives to detention and to consider the option of detention only after an individual assessment.⁸⁵ Minors aged between fourteen and eighteen were also detained, which is not compatible with rules on persons with special reception needs.

Notably, the finding that the detention under the ‘crisis procedure’ is illegal does not contradict the ECtHR Grand Chamber judgment in the Ilias and Ahmed v. Hungary case.⁸⁶ That case dealt with detention in the border procedure and was related to a twenty-three-day-long holding of the two applicants in the transit zone. The court’s finding of no breach of Article 5 of the ECHR was based on a set of conditions, which are not present in the ‘crisis procedure’. This was clearly stated in FMS and others, the case in which the ECJ differentiated between the border procedure assessed in Ilias and Ahmed and the system applied during a ‘state of crisis caused by mass immigration.’⁸⁷ The ECJ found that the detention until the end of the procedure in merit following the admissibility phase is incompatible with both the PD and the RCD, as it is neither a border procedure nor does it meet the requirements of necessity and proportionality.⁸⁸

Another breach, going beyond illegal detention within the transit zone, was related to the treatment of the asylum seekers. Not only was the whole militarised set-up re-traumatising, especially to minors, but inhuman treatment was recurrent.⁸⁹ Asylum seekers whose application was declared inadmissible based on the presumption that Serbia had the responsibility to conduct their asylum procedure were repeatedly starved.⁹⁰ Initially, even those whose judicial appeal was still pending were deprived of food. Later the deprivation was limited to those whose application was finally rejected, and awaited removal.⁹¹

Finally, the procedure followed during the ‘state of crisis caused by mass immigration’ as described here is incompatible with the PD and the more general human right to the fair procedure and the right to be heard. The Commission brought a case to the ECJ in 2018⁹² in an infringement procedure that started in 2015.⁹³ In its 2020 judgment, the ECJ found that the extremely limited access to the transit zones and the impossibility to submit an application elsewhere, the detention in the transit zone and the pushback to Serbia were contrary to Articles 6, 24(3), 43 and 46(5) of the PD, Articles 8, 9 and 11 of the RD and Articles 5, 6(1), 12(1) and 13(1) of the Return Directive.⁹⁴

8.4.3.3 The Total Exclusion of Access to the Procedure and the Abolition of the Transit Zone System

The pandemic led to the total abolition of the access to procedure within the country, excluding even the transit zone, at first temporarily, till 31 December 2020 and later extended till 30 June 2021.⁹⁵ Accordingly, both the regular procedure and the crisis procedure remained part of the law; just their application is suspended in favour of a system, now incorporated into the Act LVIII on the Epidemiological Preparedness.⁹⁶ According to the Act, asylum applications cannot be submitted within Hungary unless someone is already enjoying subsidiary protection in Hungary, is a family member of a person enjoying international protection in Hungary, or is subjected to a law enforcement measure affecting her liberty. Every asylum seeker not belonging to these groups announcing her intention to seek protection is removed from Hungary in a summary procedure without any formality. The law is conspicuously silent about those legally present in Hungary and intending to submit an application. According to the rules, the only legal way to trigger an asylum procedure is by submitting a ‘declaration of intent’ at the Hungarian embassy in Kyiv or Belgrade. That embassy decides within sixty days whether to have a travel document issued to the future applicant, who then may travel to Hungary and express her intention to submit an actual asylum application.⁹⁷ The person may be detained for four weeks without any individual deliberation of the necessity and proportionality of detention. The fact that she arrived legally with the travel document issued by the Hungarian embassy is irrelevant.⁹⁸ Both the UNHCR and the Hungarian Helsinki Committee were quick to condemn the new system and demand its withdrawal.⁹⁹

8.4.3.4 Criminalisation of Migrants and NGOs and Other Threats

Hungary is not the only state that adopts ever more measures to exclude asylum seekers and shift responsibility to third countries. What is relatively specific in its process of autocratisation is that Hungary also attacks NGOs and other actors that may help secure the exercise of human rights and refugee rights.¹⁰⁰

Securitisation comes hand in hand with crimmigration,¹⁰¹ the introduction of criminal law tools to govern migration and deter stakeholders who oppose government policies. Migration control is an administrative (public law) matter as is amply corroborated by the ECtHR practice in its refusal to apply Article 6 of the ECHR to it. Nevertheless, in 2015, Hungary reverted to the criminalisation of irregular border crossing at sections where there was a fence. A maximum of three years imprisonment threatens all who cross the fence illegally. Not only are the asylum seekers criminalised, which is contrary to Article 31 of the Geneva Convention, but NGOs assisting asylum seekers also face criminal threats. On top of human smuggling and facilitation of illegal residence, ‘aiding and abetting illegal immigration’ also became a crime,¹⁰² the core of which is ‘organisational activity’ that is perpetrated in order to

(a) enable the initiating of an asylum procedure in Hungary by a person who in their country of origin or in the country of their habitual residence or another country via which they had arrived, is not exposed to persecution for reasons of race, nationality, membership of a particular social group, religion or political opinion, or their fear of direct persecution is not well-founded,

(b) or in order for the person entering Hungary illegally or residing in Hungary illegally, to obtain a residence permit.

Organisational activity is not defined exhaustively, but includes border surveillance, producing or commissioning information material or the dissemination thereof, and ‘building or operating a network’.¹⁰³

This crime has a clear goal: general deterrence, not aimed at criminals but at NGOs providing information and assistance to irregular migrants of whom they cannot yet know if they will apply for international protection in Hungary, and if they do apply, whether they will be recognised. The new crime contains terms that can hardly be operationalised to establish beyond a reasonable doubt that the crime had been committed; therefore, it may deter from a wide range of actions that should normally be perfectly legal, like informing asylum seekers about their rights or feeding them. The Commission has started an infringement procedure that was referred to the ECJ on 29 July 2019.¹⁰⁴ The Hungarian Constitutional Court, however, maintained the semantic fog when it did not quash down the crime as unconstitutional but exempted from the crime the conduct that amounts to ‘carrying out the altruistic obligation of helping the vulnerable and the poor’.¹⁰⁵

There are two more measures against civil society indicative of an autocratisation. Act LXXVI of 2017 on the ‘transparency’ of organisations that receive support from abroad in the value of 27,000 euros or more per year requires civil society organisations – except for sports, religious and minority associations and foundations – to register and reveal their supporters. They are also obliged to indicate on all publications and web appearances that they are supported from abroad. A month after adopting the Act, the Commission started an infringement procedure that led the ECJ to conclude that it ‘has introduced discriminatory and unjustified restrictions on foreign donations to civil society organisations’.¹⁰⁶

In addition to the criminalisation of assistance, a ‘special tax on immigration’ was introduced. It is to be levied on ‘immigration supporting activities’ as ‘carrying out media campaigns and media seminars and participating in such activities; organising education; building and operating networks or propaganda activities that portray immigration in a positive light’ that is directly or indirectly aimed at promoting immigration defined in the Act as ‘the permanent relocation of people from their country of residence to another country’ except in case of persons enjoying EU free movement rights.¹⁰⁷ This tax is a means to deter as its formal applicability is minimal. In principle, the twenty-five per cent tax was only to be levied on activities supporting the permanent immigration of third-country nationals in Hungary; however, the meaning of ‘permanent relocation’ is unclear and fluid.

The criminalisation of civil society organisations is yet another link between democratic decay and restrictive migration policy. The government did not need it to limit the number of arriving asylum seekers – that could be achieved by the fence, the criminalisation of their irregular entry through it and the systemic detention and return to Serbia. Threatening the civil society organisations with criminal sanctions and punitive taxes is part of the Schmittian political project of creating foes, identifying the ‘mercenaries of [George] Soros’ against whom the leader protects his nation.¹⁰⁸

8.5 Possibilities for Democratic and Legal Resistance

The democratic decay and the dismantling of the rule of law leaves little room for legal resistance and resilience. It promotes (so far peaceful) forms of democratic resistance. Let us briefly mention the latter before turning to the possibilities of the legal action.

According to medieval traditions, free cities may function as islands of freedom and may even exercise self-governance.¹⁰⁹ The cities under opposition rule may stop the harassment of visible minorities, press the law enforcement agencies to take measures against xenophobic insults or crimes and offer NGO’s various forms of material support such as office space and access to local media. Symbolic measures of the mayor and the cities’ counsellors may refute and delegitimise the government’s ethnicist, populist propaganda. An example of such a measure is raising the EU flag again on local government buildings that had disappeared from the Parliament and the central government’s buildings long ago. Cities may shelter those few refugees who were recognised but had to leave the reception centre after thirty days without any integration assistance. Human dignity, freedom, democracy, equality, the rule of (local) law and respect for human rights, including the rights of persons belonging to minorities, may be respected and exercised locally.

Yet another form of resistance (widespread during Socialism) is maintaining an ‘alternative’ sphere of public information. Social media partly naturally provides it, but a ‘samizdat’ is again in circulation, and Radio Free Europe is back on the scene.¹¹⁰ Besides, German state broadcaster Deutsche Welle announced the launch of Hungarian-language news programmes.¹¹¹ Solidarity, among NGOs under pressure has gained importance, as seen, for example, in the concerted refusal to register as foreign-funded organisations.

Turning to the classical legal tactics, one may note that on the ruins of the rule of law, a few remaining independent regular courts may still protect the integrity of EU law and the interest of asylum seekers to find protection, for example, by finding that Serbia is not a safe third country, contrary to the claims of the government. Similarly, not ordering detention is within the power of an independent judge. After the Torubarov judgment, courts once again may overturn the administrative decision if the authority does not change it to recognition after the first sending back.

It is clear, though, that domestic democratic resistance would not be viable without external support. For instance, EU institutions might take a more decisive role in supporting Hungary’s re-democratisation. The reality of the ongoing Article 7(1) procedure against Hungary to date is anything but ‘nuclear’.¹¹² It so far somewhat resembles a blunt arrow. Yet, replacing Article 7 with newer mechanisms like the ‘peer review procedure’ entailing a regular review of each member state’s rule of law performance is not a solution. Instead, European politicians should use the existing tools and improve Article 7 procedure by working transparently and using internal expertise of the European Parliament and external expertise of Council of Europe bodies. All the three major institutions of the EU (Commission, Council and the Parliament) are currently subject to serious criticism concerning their inefficient actions to stop autocratisation. It is not the task here to engage the literature on strengthening the EU to reinstate the rule of law and respect of the European values.¹¹³ Nevertheless, four short remarks may be appropriate.

First, if the effet utile principle was to be applied, Hungary cannot veto the application of Article 7(2) TEU. According to this provision, the European Council may determine the existence of a serious and persistent breach by a member state of the values referred to in Article 2 TEU. After that, the Council could adopt effective sanctions.

Second, as guardian of the Treaty, the Commission has a duty to ensure the uniform enforcement of EU law, including the rule of law. The best tool the Commission has at its disposal to enforce it is the infringement action, which may be made more powerful to be ‘systemic’.¹¹⁴ While infringement actions have not so far been used effectively to challenge the autocratic consolidation of a member state, the ECJ has strongly hinted that it would be open to such a challenge.¹¹⁵

Third, the intensified use of interstate disputes under Article 259 TFEU might also be used more frequently. The article allows the EU member states to take action even when the EU Commission does not support the claim.¹¹⁶

Fourth, budget conditionality rules linked to the rule of law are now one of the EU toolbox items. Disbursement of EU funds from the budget and Next Generation EU is tied to respect for the rule of law standards. However, its application is suspended until the ECJ has greenlighted it,¹¹⁷ which is legally questionable and in violation of the EU’s system of checks and balances.¹¹⁸

Significantly, however, external support in re-democratisation is not limited to the EU. European and global institutions are instrumental, although their role cannot be examined here in detail.

The ECtHR is certainly a candidate to act as a force resisting democratic decay and restrictive migration policy. Until the Grand Chamber decision in Ilias and Ahmed, it did well in condemning the protean forms of detention of asylum seekers and migrants without the right to stay in Hungary, but on the more general front of resisting democratic backsliding, its record is less impressive.¹¹⁹ The ECtHR has never addressed the structural constitutional changes that happened during the last decade in Hungary. A few ECtHR judgements affected various aspects of the Hungarian autocratisation process, but either they failed to require the government to make structural changes,¹²⁰ or the government refused the legal change required by the ECtHR.¹²¹

Another short remark relates to the relative passivity of UNHCR that runs an office in Budapest and is, therefore, a close witness of the agony of the Hungarian asylum system. True, at crucial points, UNHCR has raised its voice. However, UNHCR has not been part of the visible public discourse regarding the situation; its representatives do not sit on public panels; neither do they give interviews. The reason is that UNHCR fears that it would lose access to the transit zones if it had a less low-key policy. UNHCR also believes that no rational debate with government propaganda is possible at the moment. That may be true, but one still wonders if a more direct challenge of the government could not improve the public image of asylum seekers and refugees and undermine the stream of fake news and the xenophobic framing that is part of the government indoctrination.

8.6 Conclusion

The rise of ethnonational populism and the phenomenon of autocratisation are subject to an ocean of literature. Most of it describes and analyses the Hungarian constitutional and legal changes, and some search for their causes. This chapter does not focus on these matters; instead, it gives an overview of the constitutional changes regarding migration, the abolition of the functioning asylum system and the framing of migration as a threat against which Hungary must ‘protect’ itself.

The chapter argues that the constitutional changes introduced by Orbán’s authoritarian regime can be interpreted in a Schmittian paradigm. An ever-increasing number of enemies had to be found against which the government (relying on its overweight in Parliament) equipped itself with practically unlimited powers, by way of introducing special legal orders (more specifically, by declaring a state of crisis), either by amending the Fundamental Law, or merely de facto, by ordinary Acts or even government decrees. The government has used the ‘crisis’ that has never existed to ‘justify’ the exceptional and inhuman practice developed in the transit zone, which has recently been replaced by a total ban on applying for asylum in Hungary or at its borders.

The chapter suggests that the abolition of the asylum system did not follow either from the development of the EU acquis or the large-scale arrivals in 2015, which only led to around 5000 substantive refugee status determination procedures that year and much less in the following years.¹²² Other states where large numbers of asylum applications were submitted may have tried to avoid the increase in numbers. However, contrary to Hungary, they have not given up on the idea of a fully-fledged refugee status determination procedure. The elimination of a regular procedure guaranteeing the required reception did not follow from an internal ‘organic’ development of the Hungarian refugee law either. Hungarian asylum law was generous in some periods, especially in the early nineties and then again after the first formal Asylum Act. It only gradually became tighter, but still within the bounds of the EU acquis, perhaps except the extensive use of detention.¹²³

Finally, the chapter addresses the strategies the civil society and the remaining independent institutions may consider when resisting autocratisation. As it is clear by now, Orbán has sacrificed the rule of law and the functioning democracy with a decent asylum system and presented migration as a threat to perpetuate a crisis that calls for the leader with extra-ordinary capabilities to protect his people. In exchange, blind trust and exceptional powers were to be offered, replacing rational discourse and a state operating within the bounds of fundamental rights, democracy, and the rule of law. The minority of the voters wanted that, but due to the electoral system, most parliamentarians are willing to maintain it in exchange for the goodwill (and rewards) offered by their (party) leader. Under these circumstances, democratic resistance and legal action may be needed. Both have limited and ever-narrowing space. As doubts arose concerning the meaningful support from the international and EU institutions, no guarantee is within sight against the continuing autocratisation that only used restrictive migration and asylum law and policy as a vehicle to promote its purely political, Schmittian goals, essentially determined by the person of Viktor Orbán.

9 ‘Good Change’ and Migration Policy in Poland In a Trap of Democracy

Barbara Mikołajczyk and Mariusz Jagielski

9.1 Introduction

In 2009, Professor Mirosław Wyrzykowski published a text in which he hypothetically considered whether a crisis in the democratic order could occur in a particular Member State of the European Union, and whether there are sufficient resources to protect liberal democracy from deformation.¹ He encouraged the reader to imagine that, as a result of democratic and free elections, a party (or a coalition) would come to power with revolutionary slogans, even if the revolution would take place only in the moral sphere, under the slogan of restoring ‘public morality’ (whatever that means). He noted that the victory of a political party proclaiming such slogans of a moral revolution, or a fundamental change in the existing status quo, usually followed a well-known pattern. Therefore, there would have to be a relatively large proportion of the population dissatisfied with the existing status quo, either lost or frustrated. At the same time, a significant number of people would not trust in the capabilities of civil society and would not understand that the modern model of power is not based on hierarchy and personification, but on cooperation and respect for the rules, that is to say, the rule of law, and not the individuals holding power.²

Professor Wyrzykowski argued that such a revolution would presuppose total control over state institutions, elements of a democratic society, the media and the judiciary. However, such a revolution would encounter obstacles, the first of which would be the constitution, as an amendment would require either a qualified parliamentary majority or a referendum. Since it would be difficult to achieve sufficient support, political changes would have to be made by means of ordinary legislation. As the constitution and the whole state system is guarded by a constitutional court, the first thing to do was to make changes to that court, and then to the entire judiciary.³

Until recently, such a scenario seemed to be political fiction, but then it became a reality. When Jarosław Kaczyński’s party, Law and Justice (Prawo i Sprawiedliwość – PiS), took over power in 2015, it led to a clear decay of liberal democracy. The policy of what was known as the ‘good change’ (the main slogan of PiS) affected respect for the human rights of the whole society, and certainly the rights of migrants, particularly asylum seekers.

What is more, the migration issue became the most significant element of the electoral campaigns in 2015 and 2018–2019,⁴ as the parliamentary and local elections coincided with the mass influx of voluntary and involuntary migrants to Europe, as well as terrorist attacks in France (2015) and in Belgium (2016). In general, the migration crisis was significant in helping the Law and Justice party to win elections in 2015.

The new, populist attitude to the migration crisis and asylum seekers appeared to be a litmus test of the resilience of democratic values and human rights. It was used to check how far the policy of division into ‘us’ and ‘them’, ‘nation’ and ‘aliens’, ‘common welfare’ and ‘betrayal of national interests’ would catch on in society, and whether it could be pursued in further politics. Unfortunately, this policy and model of narration has come to be seen as a successful tactic in elections and has been continued with other minority groups (e.g. LGBT).⁵

It is important to note that in Poland, we are not just dealing with an increase in the influence of a populist force on the political scene that is adverse to refugees and migrants, but with the takeover of all state institutions by the ruling majority. The capture of all (or almost all) of the state institutions means creating both a new internal and external policy, which is why the authors decided to consider this issue from an internal and external perspective, as Poland’s attitude to the migration phenomenon and its failure to meet its international obligations in the discussed area have appeared on international and European agendas.

In this study, the authors intend to prove that the legal and factual situation as of June/Spring 2021 does not allow the influence of the ‘good change’ on citizens to be separated from its influence on migrants (this chapter was written prior to the migration crisis at the Polish?Belorussian border of 2021). The approach to migrants’ rights must therefore be analysed in a broader pattern, in light of democratic decay as it coincides with a restrictive policy towards asylum seekers.

For this reason, the first part of the paper will show the consequences of the key organs of power being taken over by people who are not open to migrant rights. Then the problem of the interplay between the crisis of democracy caused by Law and Justice and the migration law and policies of the Polish state will be discussed. The second part is dedicated exclusively to the current policy towards migrants, and the consequences of that policy within the country and on international forums. Finally, the authors will attempt to indicate a remedy that will safeguard migrants’ rights (especially those of asylum seekers) against further erosion.

9.2 Constitutional and Political Background

9.2.1 Constitutional Principles and the Decay of Democracy

‘[T]he robustness of democratic institutions under the rule of law cannot be disentangled from the character and motivations of those elected or appointed to high office.’⁶ This general truth about the way the state and its organs operate is crucial to obtain an understanding of the current approach to migrants and migration policy in Poland. After the fall of communism in 1989, the Polish state was organised along the lines of the West.⁷ A series of reforms carried out in 1989–1997 led to the introduction of a constitutional system corresponding to the one developed on the western side of the Iron Curtain after World War II.⁸ Among other things, this meant building the system of governance on such principles as the supremacy of the constitution, the rule of law, the separation of powers, the independence of the judiciary, the apolitical nature of the bureaucracy and extensive guarantees of human rights.⁹ Migration was not a priority issue at that time, as Poland’s economic backwardness meant it was not a destination country for migrants. Nevertheless, the Constitution adopted in 1997 introduced two forms of protection for involuntary migrants – asylum (granted under domestic law) and refugee status (modelled on Western solutions).¹⁰ The wider development of migration regulations (at a statutory level) came out of Poland’s aspiration to integrate with the European Union and the country’s gradual adaptation to the European pattern.¹¹ In fact, Poland’s accession to the European Union in 2004 resulted in the construction of a whole new national migration law from scratch, which then became the showcase of the democratic transformation. To sum up, taking the year 2015 as a reference point, Polish regulations concerning the rule of law, human rights and migration at that time did not differ much from those operating in Western Europe. However, that year saw a political party come to power in Poland with unequivocally anti-immigrant slogans on its agenda. This was Law and Justice, led by Jarosław Kaczynski. By winning the presidential and then parliamentary elections, Law and Justice seized power not only over the office of president and both chambers of parliament, but also gained the possibility to appoint government officials, which means, among other things, taking control over a wide variety of executive branches. Using this ability, PiS gradually captured key judicial bodies (the Constitutional Tribunal, the National Council of the Judiciary and the Supreme Court) along with independent agencies that were appointed by those bodies, for example, the Supreme Audit Office, the Personal Data Protection Office and the National Council of Radio Broadcasting and Television.

While this takeover was not directly related to the issue of migration and migrants’ rights,¹² it undoubtedly had an important impact in this field. Having a decisive influence on the legislative, executive, judiciary and control bodies, as well as independent agencies, Law and Justice possessed virtually unlimited and uncontrolled power to shape the state’s migration policies. It is impossible to understand the linkage between the decay of democracy in Poland after 2015 and the country’s policy towards migrants without realising this phenomenon.

9.2.2 ‘Good Change’ in Action

To illustrate these processes, we will refer to some of the bodies and offices influencing the migration policy. First of all, the role of the media is crucial, as it has a significant impact on public opinion, and is therefore used by those who rule to shape the views of the population.¹³ One of the first steps taken by the PiS government was to create a new media order in Poland. This was done by establishing a new organ – the Council of National Media – a body not provided for in the Constitution. This Council was given numerous powers previously wielded by the National Council of Radio Broadcasting and Television, a body provided for the Constitution as safeguarding media freedom. In this way, Law and Justice took full control over the public media in Poland.¹⁴ State channels very quickly became a government propaganda mouthpiece, but in the absence of independent bodies controlling the broadcast content, Law and Justice could freely use them to manipulate the public’s mood in the area of migration, as will be discussed below.

The takeover of governmental offices, agencies and bureaucratic bodies responsible for migration issues allowed Kaczyński’s party to shape policies in this area. For example, in 2013, the Government Plenipotentiary for Equal Treatment had announced the National Action Programme for Equal Treatment for the years 2013–2016. This programme included goals like ensuring the equal treatment of migrants on the labour market and reducing barriers to education for migrant children.¹⁵ After PiS came to power, the programme was never updated, although the migration crisis was at stake. What is more, when the plan expired in 2016, no new programme was ever developed. Finally, the Plenipotentiary was shuffled from the Chancellery of the Prime Minister to the Ministry of Family and Social Policy in January 2020, a sharp decline in its standing that leaves the office insignificant.¹⁶ Therefore, the takeover of the office of Plenipotentiary by PiS not only meant that the previously planned pro-migration activities failed to be implemented, but also resulted in the marginalisation of a potentially important institution of democratic life. The Plenipotentiary was a thorn in the side of PiS that had to be dealt with. Not only because of the Plenipotentiary’s policy in support of migrants, but also due to PiS’s antipathy towards the Plenipotentiary’s progressive approach to minority rights,¹⁷ which PiS treats as an ideological concept (especially ‘gender ideology’ and ‘LGBT ideology’).¹⁸ So, as we can see, migrants were placed in line with other groups stigmatised by ‘good change’.

The same applies to the Commissioner for Children’s Rights – Marek Michalak – who had been elected in 2013 and was actively advocating for children’s rights during the migration crisis.¹⁹ After his term ended in 2018, his successor, Mikołaj Pawlak, appointed by PiS, no longer undertook such activities, instead choosing other priorities for action. ‘Good change’ in this field did not mean that migrants’ problems were totally abandoned, but they had certainly been marginalised, with issues closer to the ideology of the ruling party jumping ahead on the agenda.²⁰

For the time being, the only remaining constitutional body active in protecting human rights in general that has not been taken over by Law and Justice is the Commissioner for Human Rights.²¹ According to the Polish Constitution, the Commissioner safeguards the freedoms and rights of everyone under the Polish jurisdiction (not only of Polish citizens), specified in any normative acts (not only those indicated in the Constitution).²² Due to this wide range of powers, the Commissioner has the power to intervene also in matters of foreigners, refugees and migrants.²³ Unfortunately, being a body that was independent from PiS, the Commissioner faced obstruction by the government, which was reflected in the gradual reduction of funds for his office’s activities.²⁴ Consequently, it resulted in the deterioration of the possibilities of intervention in all areas of his activity – in defence of the rights of both citizens and non-citizens, compared to what had been carried out before 2015.²⁵

The same process affects the functioning of NGOs. Government agencies can influence the existence of NGOs (simply by granting money, or not) and can, in that way, shape the framework for their activities. This does not mean that some areas of NGOs’ activities are expressly prohibited; they are simply not supported by the state’s money,²⁶ which in practice means that they are not performed.

The decrease in the level of protection for migrants is, in these cases, a side effect of the struggle of the PiS government against those authorities and bodies that remain independent and outside of its influence. Again, migrants are not an exclusive target. They became victims of a general crackdown between PiS and the institutions defending human rights. The decline in the level of protection for individuals under the rule of Law and Justice and problems with the treatment of migrants cannot be separated. These are phenomena that function simultaneously, two sides of the same coin.

An anti-migrant state policy does not have to be active. It is sufficient for the state to remain passive in such matters, which means that migration issues disappear from the government agenda. State reforms that could potentially support migrants simply ignore them and their specific situation. This process can be observed through the example of Poland’s judicial reform carried out in 2017.²⁷ The changes did not cover any matters related to migrants or migration. When reforming, it could have been an opportunity to consider and improve the organisation of the courts in the area of migration. Today, decisions on the detention of a foreigner and court actions against administrative decisions on international protection and the right of residence are dealt with by two different types of courts – criminal and administrative. Unfortunately, the reform did not provide for a change in this division. No thought has been given to consolidating the judiciary in migration matters.

Sometimes the reforms even worsened the situation of migrants, despite not being the intention. Among the reforms introduced was the concept of drawing lots between judges. This solution has its advantages, but it does not necessarily work in migration cases, where a quick decision is needed from a judge who is familiar with the nuances of migration problems.

Taking into account what has been said above, we argue that the negative impact of Polish constitutional decay on the issues of migrants manifests itself not only in the liquidation of migration policies and diminishing the actions of the bodies supporting them, but also in ignoring their problems and specific nature, which in practice deepens their vulnerability.

9.2.3 Primary Findings

To sum up Poland’s experience, this is a country where populism is not a potential threat, but a real fact. We advocate the concept of a ‘strong’ relationship between populism, the crisis of constitutional democracy and migration policies. In this sense, we perceive restrictive migration policies as an element of democratic decay. As we have tried to show, the crisis of democracy, which results in the incremental and systematic undermining of human rights, is also evident in matters of migration.²⁸

The Polish state’s approach to migrants and asylum seekers requires further exploration in more detail. To explain this policy properly, it must be emphasised that the migration policy constitutes an element of a wider phenomenon. We realise that this concept of a link may not be seen so clearly from the perspective of most Western European countries, where populist politicians are only aspiring to take over power, but in the case of Poland, a country where populists have already come to power, it is based on fact.

The Polish experience also shows that if populists take full power, no one can count on self-safeguards included in the internal law. The Polish case shows that the rule of law will not defend itself. This has already been explained in the literature, based on the Polish example, looking at how the ruling party was able to bend the interpretation of the Constitution and the laws to achieve important regime goals.²⁹ The sad truth is that, no matter how well-designed a system is, its operation always depends on the course of action taken by the elected rulers.³⁰

After the takeover of power by Law and Justice, the Polish experience shows that the application of the law depends on the people wielding power. The guarantees contained in the legal system will not work unless someone is willing to use them. As law-making and law enforcement of the internal Polish law are under the control of Law and Justice, it is no longer possible to count on the internal law’s ability to provide resilience against restrictive migration policies. If one seeks help in the law, it would rather have to be the international or European one. These issues will be discussed below.

9.3 The Perspective of Migration and Asylum

9.3.1 Facts

In contrast to Western and Southern Europe, the migration crisis of 2015–2016 largely bypassed Poland. This is a kind of paradox because, despite the low risk of waves of migrants from Syria and Africa arriving in Poland, Law and Justice managed to skilfully exploit the migration crisis in Europe, rather than in Poland, by sowing fear of an influx of migrants. That is why some facts should be established.

First, migration into Poland after 2014 was determined by the situation in Ukraine following the occupation of Crimea by Russia, and subsequently by the conflict in Donbas. However, only a few Ukrainians were granted refugee status or subsidiary protection. On the other hand, a very liberal visa policy was adopted for Ukrainian citizens. At present, Ukrainian citizens constitute the largest group of foreigners legally living and working in Poland (about 1.2 million people). It is believed that many more Ukrainians would have applied for international protection if they had not had the possibility of legally entering and staying in Poland.³¹

Second, from 2007 to 2016, the total number of applicants for international protection (mainly from the Caucasus) did not exceed 12,300 (in 2015 and 2016). In 2017, the number of foreigners applying for international protection in Poland suddenly fell sharply to a little over 5,000, and has been decreasing since then. In 2019, only 4,110 foreigners applied for international protection and it was granted to just 144 of these foreigners.³² It should also be added that it is characteristic for whole families, including children, to arrive in Poland.

Finally, a large number of proceedings for international protection are discontinued (there are usually more decisions on discontinuation than refusals), mainly due to foreigners absconding.

All these facts should be taken into account when describing Poland’s migration policy, as they have appeared in the civil society reports, interventions of national human rights institutions, and on the international forum.

9.3.2 Political Trends and Narration

At present, the Act on Granting Protection to Foreigners in the Republic of Poland of 2003³³ and the Act on Foreigners of 2013³⁴ transpose EU law concerning third-country nationals into the Polish legal system. In general, these acts just about meet the requirements of the Common European Asylum System CEAS. In 2017 and 2019, substantial government proposals for amending the Act on Granting Protection to Foreigners were submitted. The drafts proposed, among other things, restrictive border procedures and stipulated that the inadmissibility or refusal of international protection or a permit to stay due to humanitarian reasons would oblige the foreigners to return, and would prohibit their re-entry into Poland or any other Schengen State for a specified period of time.³⁵ In practice, this might lead foreigners with strong and good faith claims for asylum to refrain from exercising their fundamental human rights. The attempts to significantly change the law turned out to be unsuccessful, with the drafts receiving very negative reviews from UNHCR, NGOs, national institutions for human rights and the Supreme Court.³⁶ The legislative process was not completed before the parliamentary elections in October 2019, so it did not enter into force. Thus, at some point after 2015, the main changes concerning migration and asylum took place outside the legal sphere – through political strategy, debate and in the media.

After the Law and Justice party won the parliamentary elections in October 2015, the Council of Ministers cancelled the 2012 policy paper ‘Migration Policy of Poland – the Current State of Affairs and Proposed Actions’. It was not until June 2019 that the Council of Ministers presented a new proposed paper ‘Migration Policy of Poland’, being part of the Strategy for Responsible Development adopted in 2017.³⁷ Its authors emphasised, among other things, that the EU’s experience in the area of migration and integration, being based on a multicultural model, had become a failure, so it was necessary to adopt a new solution involving the concept of a leading culture. In this way, the system of integrating foreigners should become an obligation, not just an option to be chosen by foreigners. The aim of this new policy was primarily effective integration, but also the assimilation of any foreigners. The project focused on social cohesion and security issues, including counteracting illegal migration and the strengthening of border controls, thereby limiting attempts to abuse immigration or refugee procedures.

The project was subject to consultations and came under heavy criticism from civil society organisations;³⁸ it was not pursued further.³⁹ However, the government’s current migration approach follows the main ideas of this project. There is a clear Janus-faced policy towards migrants. On the one hand, in view of growing job vacancies that threaten the development of particular sections of the economy and given the ageing Polish society, migrant workers who integrate here easily (mainly from Ukraine) are accepted as a necessary labour force. This aspect of migration is not a controversial issue, though there is, unfortunately, no deep debate on issues such as the working conditions of economic migrants.

On the other hand, asylum seekers have been presented as a threat to the security and social cohesion of the state. This has led to an increase in xenophobic sentiment, primarily in the context of the possible migration of Muslims. This aspect of migration (or potential migration) to Poland, the mass influx of voluntary and involuntary migrants to Europe, as well as the threat of terrorism, became a hot topic of political slogans during the electoral campaigns of 2015 and 2018–2019.⁴⁰ Special attention should be paid to the narrative of the political debate and the media message that accompanied the change of power in Poland. Politicians associated with the political right remain very reluctant to accept applicants for international protection. They treat the refugee issue instrumentally, exploiting it for political purposes, without considering the refugees’ actual situation or their human rights. After winning the campaigns, the politicians seemed to abandon the subject as useless, moving on to find another group to divide society into ‘us’ and ‘them’, all the while accepting an unprecedented number of economic immigrants.

The public media, taken over by the ruling majority, has proved to be extremely helpful in creating a negative image of refugees. Public radio and TV broadcasts have been used extensively to build up a hostility towards migrants, who were presented as a threat to Polish and European values, national security, culture, traditions and even national health.⁴¹ Referring to anti-migrant slogans and calling for the ‘defence of common values’ allowed Law and Justice to strengthen its popularity, which would not have been possible without ending the independence of the public media.

The 2018 pre-election scare campaign of the Law and Justice party may be a prime example of this tactic. The videos used during the campaign set out to frighten voters, offering a futuristic vision of Poland that accepted refugees from Muslim countries. It presented immigrants, especially refugees from Muslim countries, as a potential source of riots, assaults, rape or murder, and undoubtedly aimed to arouse feelings of reluctance and hostility in the majority of the audience. In the opinion of the Commissioner for Human Rights (ombudsman), the videos were undoubtedly political and persuasive in nature, and therefore could not be considered as a mere expression of the opinion or opinions of its creators. According to the Commissioner, the videos call for hatred; it does not deserve the protection guaranteed under the Constitution of the Republic of Poland⁴² or Article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR).

The Commissioner tried to bring proceedings to classify the videos as ‘hate speech’, but the public prosecutor’s office initially refused. The Commissioner twice filed complaints to the court against the refusals. In September 2020, after the court had issued decisions obliging the public prosecutor to start proceedings again, the public prosecutor discontinued the proceedings, stating that, after extensive analysis by three experts, it could not be accepted that the video amounted to incitement to hatred, as the goals of its authors were different. The Commissioner has again appealed against this decision,⁴³ but it is doubtful that his successor as commissioner, if one is elected by the Law and Justice party, will continue to be active on this matter.

This case also shows that politicians, the media and society in general have lacked a thorough, unbiased debate on the migration crisis and have failed to present the crisis in a broad context. The debate has mainly been limited to raising certain security issues and frightening the public.⁴⁴

9.3.3 (Lack of) Solidarity and International Cooperation

The reluctant attitude of the Polish authorities towards migrants coming to Europe is also visible on the international arena. Particularly clear evidence of this approach can be found in Poland’s rejection of the Global Compact on Migration at the seventy-third session of the UN General Assembly.⁴⁵ In a statement issued by the Polish delegation, it was postulated that the Global Compact was not the right instrument to manage migration and that it did not serve the best interests of Poland and its nationals, so Poland maintained its sovereign right to restrict the admission of non-nationals. The other arguments of the Polish delegation were strange to say the least. The huge number of migrant workers already in Poland was indicated as a factor preventing Poland against the reception of more asylum seekers. The delegation also pointed out the difficulty in implementing detention standards.⁴⁶

By not accepting the Global Compact,⁴⁷ a document of political dimension without legal power, Poland demonstrated a lack of goodwill towards promoting standards and norms concerning migration, as well as in cooperation between countries. In fact, it is difficult to find a rational justification for such an attitude, except to please its own voters.

Poland’s reluctant approach to migration issues has also become a hot topic within the European Union. As mentioned above, the election campaigns in Poland also coincided with the process of relocating refugees, carried out from 2015 to 2017. It must be acknowledged that it was initially possible to expect consensus regarding migration, and that, after the elections in October 2015, the newly-elected government upheld its predecessor’s undertaking to accept 7,082 asylum seekers from Italy and Greece as part of the Relocation and Resettlement Programme. However, the declared number of admitted asylum seekers was quickly reduced, and the relevant law to enable the relocations was never finally enacted. As a result, Poland failed to relocate asylum seekers from Italy or Greece. The politicians justified their position on security grounds, highlighting the terrorist attacks in Brussels in March 2016. The Ukrainian crisis and its potential consequences were also used as an excuse for rejecting any relocations.

Another argument against any relocations was the concept of on-site assistance; funding for this was significantly increased and a special Department for Humanitarian Aid was established in January 2018. Its task was the coordination and monitoring of assistance from Poland, mainly to those in need in North Africa and the Middle East. Since no complete report of the department’s activity is currently available, it is difficult to assess the results of this initiative. Its future does not seem optimistic. The Ministry of Foreign Affairs failed to launch any calls for humanitarian aid projects in 2020 and has reduced development aid funding by one-third. The Syrians in Lebanon and Jordan, whose accommodation is financed by Poland, along with patients in clinics in Kurdistan and victims of the conflict in Donbas, will all suffer the most.⁴⁸

It is worth adding that the ruling majority rejected not only the concept of relocation, but also the concept of humanitarian corridors. In this matter, the government’s position turned out to be very tough, as even the Polish Catholic Church’s initiative to organise humanitarian corridors for those in need of medical assistance did not meet with government approval.⁴⁹

Poland’s position on relocation and solidarity among the EU Member States in matters of migration has always been consistently negative. First, Poland intervened against the relocation programmes in the case Slovak Republic and Hungary v. Council of the European Union. The Court, however, confirmed the legality of these programmes, concluding that Article 78(3) TFEU allows the EU institutions to take all temporary measures necessary to respond rapidly and effectively to an emergency situation such as a sudden influx of migrants.⁵⁰

Then, Poland was one of three countries, together with the Czech Republic and Hungary, against which the European Commission launched infringement procedures in December 2017, reasoning that these Member States had failed to fulfil their obligations under the Relocation Decisions. The Court followed the opinion of Advocate General, Eleanor Sharpston⁵¹ and, on 2 April 2020, upheld the actions for the failure. The Court concluded that there had been an infringement of the decision adopted by the Council with a view to the mandatory relocation of 120,000 applicants from Greece and Italy. It also found that Poland and the Czech Republic had also failed to fulfil their obligations under an earlier decision that the Council had adopted with a view to the relocation, on a voluntary basis, from Greece and Italy of 40,000 applicants for international protection.⁵²

Finally, when negotiating the Dublin IV Regulation, the Polish Government expressed strongly opposition to any proposals for mandatory and automatic redistribution mechanisms. Poland has indicated that any future compromise on the application of solidarity mechanisms should be based solely on solutions acceptable to all Member States.⁵³

9.3.4 Human Rights Issues

Poland’s attitude towards various migrants, especially involuntary migrants, has been noticed on the international forum. When analysing observations, views and judgements of human rights treaty bodies and the European Court of Human Rights’ judgements, three main points emerge. The first is the general issue of preventing xenophobia. The second point refers to the right to seek asylum. The last one relates to the unsolved problem of migrant detention.

9.3.4.1 Problem of Xenophobia

The international community formulated several recommendations and comments during the Universal Periodic Review in 2017. Many of them encouraged Poland to take an active stance in combating and raising awareness of racism and intolerant political rhetoric, as well as strengthening legal and other measures to address bias-motivated crimes, ensuring the prompt and effective prosecution of racist, xenophobic hate crimes. Many other recommendations related to the rule-of-law principle and the protection of the judiciary’s independence, as well as to the reduction of funds for civil society organisations and national human rights institutions, as all these factors lead to diminishing the standard of human rights protection.⁵⁴

In the Concluding Observations of 2019 by the Committee on the Elimination of Racial Discrimination (CERD), Poland was advised to introduce educational campaigns on tolerance, aimed at eliminating prejudices and social stereotypes, and to ensure the proper registration, investigation, prosecution and conviction of perpetrators of hate speech and hate crimes.⁵⁵ All these remarks are fully justified, as the political narrative and the public media have contributed to the xenophobic sentiment over the last few years. The prosecution of hate speech does not seem to be a priority.

9.3.4.2 Access to Territory

Bearing in mind these proposals to change migration policy and attempts to tighten up border procedures and, above all, the dramatic drop in asylum applications on Poland’s eastern border, it is worth looking at this issue from the perspective of international bodies.

Already in 2016, the Human Rights Committee advised the Polish authorities to ensure that access to asylum would not be obstructed on the grounds of religious discrimination, or any other grounds prohibited by the Covenant on Civil and Political Rights, and to establish a proper screening system that will ensure asylum seekers are not returned to a country where there are substantial grounds to believe they may face a real risk of irreparable harm, such as that set out in Articles 6 (right to life) and 7 (ban on torture) of the Covenant.⁵⁶

The committee’s recommendations failed to prove effective, as the committee received a communication in 2017 referring to a violation by Poland of Articles 2 (non-discrimination clause), 7 and 13 (rights of aliens) of the Covenant, due to its failure to register and accept an asylum application.⁵⁷

In 2019, two other committees issued their Concluding Observations in which they raised the problems of denied access to asylum procedures by border guards, refusal to register asylum applications and lack of access to legal assistance at the border.

These committees were the mentioned CERD and the Committee against Torture (CAT). The latter noted that individuals in need of international protection were not always given access to Poland, particularly at the Terespol border crossing from Belarus, and at the Medyka border crossing from Ukraine. In this context, CAT criticised a proposed amendment to the Act on Granting Protection to Foreigners concerning the introduction of accelerated border procedures as it claimed this would severely limit further access to Poland and result in the refusal of asylum claims and limits on the right to an effective remedy. The committee also stressed the asylum seekers’ right to legal assistance. Finally, the committee said that Poland should refrain from engaging in pushbacks and refoulement, and should set up accessible and protection-sensitive entry systems at border-crossing points.⁵⁸

However, the attitude to asylum seekers and the respect of their human rights are much better illustrated by a case brought before the ECtHR. The case M.K. and others v. Poland originated from the applications of three Chechen families with children who travelled to the Terespol border crossing. The applicants alleged that the Polish authorities had repeatedly denied them the possibility of submitting an application for international protection, despite their expressed wish to apply for asylum. They complained about a breach of non-refoulement under Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (the European Convention on Human Rights – ECHR), and invoked Article 4 of Protocol No 4 to the Convention, alleging that their situation had not been reviewed individually and that they were victims of a general policy that was followed by the Polish authorities with the aim of reducing the number of asylum applications registered in Poland. They also argued that lodging an appeal against a decision of denial of entry into Poland did not constitute an effective remedy, as it would not be examined quickly enough, would have no suspensive effect and would not be examined by an independent body. It is worth mentioning also the fact that their legal representative was denied the opportunity to meet them at the border checkpoint. Finally, the applicants complained that the Polish authorities had not complied with the interim measures granted to them by the Court, in breach of Article 34 of the Convention. In response to this last allegation, the Ministry of Foreign Affairs explained that the Convention did not apply, because the applicants were not present in Poland as a result of the refusal of entry.⁵⁹ This argument obviously remains in breach of Article 1 of the Convention, since ‘within their jurisdiction’ also means ‘being subject to border checks’. This arises from the ECHR jurisprudence and is a well-established concept in the area of human rights.⁶⁰ In its judgment, the Court⁶¹ found that Poland had violated all the aforementioned provisions of the ECHR. Currently, there is another, almost identical, complaint pending before the ECtHR, this time from a Syrian family. In the case D. v. Poland, the applicants complain not only about being repeatedly denied the possibility to submit an application for international protection, but they also allege that they are victims of a general policy adopted by the Polish authorities aimed at reducing asylum applications in Poland.⁶²

9.3.4.3 Detention

The specific nature of involuntary migration to Poland, where there is a high risk of asylum seekers absconding and the frequent application of the Dublin mechanism, has led to the issue of detention in Polish guarded centres being discussed on the international forum. The detention of asylum seekers, including families with children, is obviously not a new problem that has only emerged in recent years. It has been around for many years and has been reported on by NGOs previously.⁶³ Although the Human Rights Committee’s Concluding Observations of 2016 and the Committee on the Rights of the Child’s Observations on Poland’s periodic report in 2015 encouraged Poland to the extensive application of alternative measures to avoid the detention of asylum seekers under the age of eighteen and families with children, the situation has not changed.⁶⁴ The same remarks appeared again in the CERD Observations in 2019. The committee noted ‘the continuing practice of detaining children with their parents, or having unaccompanied or separated children in guarded prison-like centres for foreigners, which subject children to a traumatic experience and prevent those children from having access to full-time education.’⁶⁵

It should also be pointed out that the Fundamental Rights Agency saw the percentage of decisions imposing an alternative to detention increase from eleven per cent in 2014 to over twenty-three per cent in 2017,⁶⁶ which may either be recognised as progress or a failure.

Finally, the case of Bistieva and others v. Poland,⁶⁷ heard by the European Court of Human Rights (ECHR), clearly shows the specific nature of Polish asylum cases, both in terms of the situation (the unwillingness of foreigners to stay in Poland) and the solutions adopted by the Polish authorities concerning the detention of migrants, including families with children.⁶⁸ Concerning Article 8, the ECHR found that there had been a breach of the Convention because the detention of the applicant and her children for six months interfered with the effective exercise of their family life. In the Court’s opinion, the authorities had not fulfilled their obligation to consider the family’s detention as a last-resort measure, and had not taken into account any alternative measures. Acting in the child’s best interests could not be limited to simply keeping the family together. In the Bistieva judgement, the Court also ruled that further action would need to be taken by Poland’s authorities in order to prevent similar violations.

In June 2019, the government submitted a statement on the enforcement of this judgement, saying that Poland had fulfilled its obligations, among other things, by implementing and developing the regulation – ‘Rules of the conduct of the Border Guard with respect to foreigners requiring special treatment’.⁶⁹

The Helsinki Foundation for Human Rights, monitoring the implementation of this judgement, took a different view in this case. In August 2019, it submitted to the Committee of Ministers of the Council of Europe a communication stating that the Polish authorities had failed to properly take into account the principle of assessing the best interests of the child in immigration proceedings, and that effective measures must be taken to prevent similar violations in the future. Therefore, the report concluded, judges and border guard officers should receive proper training on applying the principle of the best interests of the child and ECtHR case law in cases of immigration detention of minors, and the courts must incorporate a personalised assessment of the situation of the affected children when deciding to place a family in a guarded centre.⁷⁰

Certainly, issues concerning the detention of asylum seekers and irregular migrants is not only a Polish problem; indeed Poland is not even the biggest offender in this area. There are also a number of judgements and recommendations addressed to other governments. However, this issue has been selected to show clearly that human rights mechanisms become ineffective when there is no political will to take a serious look at the problem. The lack of will means that even binding international rulings may be circumvented or not implemented properly. This results in weakening the standard of the protection of human rights provided by international institutions.

At the same time, the detention problem highlights the importance of civil society organisations, the independence of national human rights institutions (here the Commissioner for Children’s Rights) and judges for maintaining legal resilience.

9.4 Conclusion

The current political and social situation in Poland gives us a real-world look at the relationship in practice between the crisis of democracy and the rights of migrants, especially asylum seekers, in an era of democratic decay. In the Polish case, we would like to stress that it is difficult to consider ‘legal resilience’ as a mitigating factor. The seizure of the public media and almost all state institutions by the ruling majority, coupled with the reduction in support for civil society organisations undoubtedly affected the situation of migrants. In fact, in the area of migration policy and migrant rights, no special bending of the rules was required. It was enough to gather in one political hand the instruments of lawmaking, law enforcement and legal interpretation to pursue the migration policy in a direction welcomed by the ruling party. At the same time, the lack of independent watchdogs has severely limited the ability to supervise these processes, especially as a hostile approach to asylum seekers also appeared outside the legal sphere, on the political and practical levels.

Our findings confirm that in the event of a populist party taking over all the state institutions, migrants’ rights cannot be considered in separation from the protection of human rights in general. Analysing the Polish experience, the breakdown of the constitutional rights system results in a decrease in migrants’ rights protection just as it does for other social groups. However, lowering the general standards of human rights protection affects migrants in particular, as they should be treated as a group of human rights holders that is more vulnerable than most. Due to their situation, they are much less able to defend their ‘general’ human rights compared to citizens. Aside from this negative impact on the general standards of human rights protection, migrants suffer added detriments to their human right to asylum and principle of non-refoulement, as well as the right to an effective remedy in the case of being pushed back at the border.

The hostile attitude of politicians on the political right towards accepting refugees and the negative message expressed through public media has resulted in an aversion to asylum seekers and refugees that has increased xenophobic sentiment in society. At the same time, law enforcement agencies have not been sensitised to combating xenophobic crimes and hate speech. The progressive exchange of judges also lowers the standard of protection in this area.

Presently, upholding the rights of migrants, refugees, and asylum seekers (including detained children) is not in the interest of the bodies responsible for eliminating discrimination and ensuring equal treatment and policy. The only exception to this is the Commissioner for Human Rights, whose term of office is coming to an end. Finally, the increasingly difficult situation of civil society organisations hurts their ability to provide support for migrants, especially in terms of legal assistance and reception.

Moreover, the two phenomena – the breakdown of democracy and the issue of migrants’ rights – appear to be complementary. They seem to interact with each other. Firstly, the migration crisis was exploited by PiS to take power. Jarosław Kaczyński’s party used this crisis to mobilise voters during the 2015 and 2018 election campaigns (presenting migrants as a threat to Polish culture and economy, and PiS as the only force able to overcome this threat).

Second, after victory in the elections, PiS used and still uses the instruments of power that they gained in order to introduce restrictions in the flow of migrants, pursuing a strategy that directly or indirectly has a negative effect on migrants’ rights. Thus, these two elements are actually combined. When the migrant crisis of 2015 diminished, the migration problem nearly disappeared from PiS’s agenda and migrants were no longer presented as the main danger. Nevertheless, this style of policymaking remained, but the targets changed. Nowadays other social groups are in the firing line, shown as the main threat: the democratic opposition described as ‘elites’, LGBT and ‘gender ideology’. This has resulted in various restrictions on judges, sexual minorities and women (the problem of reproductive rights). Nevertheless, it is easy to predict that, when the need again arises, migrants will return to the agenda, which will probably be combined with further restriction of their rights.

When it comes to the potential and limits of legal resilience in the migration context, the Polish experience shows that the way the law is used as an instrument of shaping social reality depends on the attitude of those who hold power. The Polish experience after Law and Justice took power over the parliament, the executive and the Constitutional Tribunal, and finally the Supreme Court shows unequivocally that there is no such thing as an inherent resistance of the law to being used improperly. The law cannot defend itself but is a tool of the ruling politicians. This means that a change in the approach to migration law in Poland is inevitably combined with a change in the holders of power. They must be replaced by people with a different vision for policy in this respect. Therefore, what we are dealing with here is not primarily a legal, but rather a political problem, which may be overcome not by legal means (the law itself), but by the will of the people expressed at elections. However, in the current climate, even the opposition parties are not willing to put migrants’ rights onto their agenda. Polish society’s mindset about migrants has been ingrained so deeply that it is difficult to expect particular initiatives on their rights to appear in subsequent election campaigns. It would be too risky for either party.

Seeking support for legal resilience in international forums may also prove unsuccessful. Certainly, the international and European instruments are beyond the direct control of the Polish government, but everyday migration policy remains in the national domain.

The human rights treaty bodies have identified many discrepancies between Poland’s law and practice in the area of human rights protection. The ECtHR has found a breach of the provisions of the ECHR, including the ban on torture in border cases. The CJEU has issued a ruling on the infringement of the solidarity principle due to the rejection of relocation decisions. In light of these findings by international bodies, it might be thought that they can offer a remedy forcing PiS to modify its attitude to migration. However, nothing could be further from the truth, as PiS does not care about external opinions, because the target group it wants to convince is its own voters. Contesting international consensus or the recommendations of human rights bodies is much easier, cheaper and more popular than reviewing the use of detention or raising the awareness of judges and state officials in relation to asylum seekers’ rights.

What might make a difference to the ‘good change’? Probably only the awakening of civil society and a red card shown at the next elections.

10 Criminalising Migrants and Securitising Borders The Italian “No Way” Model in the Age of Populism

Stefano Zirulia and Giuseppe Martinico

10.1 Italian Populism in a Comparative Perspective

Italian populism is interesting to comparative lawyers for many reasons. Not by coincidence, Italy has been defined as a “laboratory”¹ for those who are interested in studying populism. First, the country has a long-lasting tradition of anti-parliamentarism over the course of its history as a unitary state. After the end of World War II (WWII), populism has characterised many of the new parties and movements which have come to the forefront in Italian politics. Indeed, members of the Common Man’s Front (Fronte dell’Uomo Qualunque), the first populist movement in Italy, also participated in the works of the national Constituent Assembly. Second, after the 2018 general election, Italy has turned into the first European country in which two self-styled populist forces (MoVimento 5 Stelle and Lega) with very different agendas and voting constituencies have formed a coalition government which then ended in September 2019. That government was the product of a “contract for government” signed between these two political forces. The MoVimento 5 Stelle and the Lega labelled the first Conte government as the “government of change”. Salvini, former Deputy Prime Minister and Interior Minister at that time, referred to Orbán as a role model and there are similarities with Hungary, especially looking at Italy’s migration policy and the way the EU is blamed for migration flows. The migration crisis has been one of the many reasons for tension between Hungary and the EU and similar tension can be found in Italy especially during the first Conte government in which Salvini served as Interior Minister. Indeed, Salvini’s populism has sadly found its main focus in the tragic field of migration policies.² This shows that Italian populism is just the latest episode in a longer crisis of constitutional democracies in Europe. In the Italian case, restrictions of migrants’ rights represent a form of democratic decay in populist time, a phenomenon that was pretty evident during the first Conte government but whose roots should be found even earlier. At the same time, this nativist approach to migrants should not be seen as the only manifestation of democratic decay in Italy, which is broader in nature.³

By analysing the developments that occurred in the field of migration law during the last two years, in correspondence with the transition between the first and the second “Conte” Governments, this chapter seeks to explore how the recent populist wave has impacted on the management of borders at different levels (legislature, executive and judiciary). To this purpose, we will focus our attention on the maritime border at the South of Italy. Indeed, this is the area in which the conflict between border protection and fundamental rights reaches the highest level of tension: first of all, in popular discourses, especially Italian ones, the maritime border is permanently exposed to a risk of “invasion” by irregular foreigners sailing from North Africa, a risk on which the populist narrative often builds the support to increasingly restrictive immigration policies; secondly, it is precisely along the Central Mediterranean route that fundamental rights are exposed to the most serious threats, represented by both natural factors and the risk of refoulement to Libya (or to other countries that cannot be considered “places of safety” either); thirdly and finally, it is an external border of the European Union, with respect to which the issue of solidarity between Member States is crucial to the definition of long-term migration policies as well as in the management of periodic emergencies. For these reasons, the southern Italian border represents an ideal field of investigation to assess both the impact of populist policies on immigration law and the “resilience” of the legal system with respect to their spreading.

One might think that the new wave of populism in Italy would have ended after the second Conte government, created by the alliance between the MoVimento 5 Stelle and the Partito democratico,⁴ but this would probably be a mistake. Not even the advent of the Draghi government has killed the populist momentum, as the numerical strength of the populists in Parliament has not changed. At the same time, it is not possible to reduce Italian populism to the success of the Lega. Indeed, the former Italian President of the Council of Ministers (i.e., the “Prime Minister” in Italy), Giuseppe Conte, has also repeatedly defined himself as a populist,⁵ so it seems that nowadays Italian political leaders do not avoid this label; on the contrary, they are happy to display it as a badge of honour. The Italian case is, in that sense, particularly emblematic of the new (global) populist trend. Contemporary populisms do not emerge completely out of the blue. Rather, they are the consequence of long-standing issues that have characterised the political contexts in which they operate, and migration is one of these. As is the case elsewhere, Italian populism has ancient roots.

The Conte governments are also interesting to study in that Conte tried to find a link between populism and the wording of the Italian Constitution. An example of this is his recent speech at the United Nations, where he said:

The Italian Government has placed these same priorities at the basis of its action. Government action that does not give due consideration to assuring that all of its citizens have equitable and fully dignified living conditions is not action that I can consider morally, much less politically acceptable.

When some accuse us of souverainism or populism, I always enjoy pointing out that Article 1 of the Italian Constitution cites sovereignty and the people, and it is precisely through that provision that I interpret the concept of sovereignty and the exercise of sovereignty by the people.

This approach does not modify the traditional position of Italy within the international community and consequently toward the United Nations. Security, the defense of peace and the values that best preserve it, and the promotion of development and human rights are goals that we share and shall continue to pursue with courage and conviction at the national and international levels.⁶

Here, one can discern an attempt at finding a reading consistent with the text of the Italian Constitution by stretching, at the same time, some of its key concepts and – most importantly – exercising a sort of cherry-picking approach to the Constitution. Indeed, when referring to Article 1 of the Italian Constitution, populists tend to mention just a part of the relevant provision (the part recognising the principle of “popular sovereignty”) in order to find a confirmation of their majoritarian approach to the fundamental charter and to reinforce their false dichotomy between themselves (the real people) and the “others”. In so doing, they tactically omit that the same Article 1 of the Italian Constitution immediately clarifies how popular sovereignty should be understood as limited by the Constitution itself, as the provision reads: “Sovereignty belongs to the people and is exercised by the people in the forms and within the limits of the Constitution”.⁷ This is very telling of how populists try to legitimise themselves as political forces consistent with the Constitution. At the same time, when they look for such a literal link with the text of the Constitution, they also advance an alternative reading of two of the constitutional concepts mentioned in that provision, “people” and “popular sovereignty”, by relying on the constitutive ambiguity of these concepts. For populists, democracy can be reduced to the mere majority. Indeed, one could say that the real aim of populist movements is to alter the axiological hierarchies that characterise constitutional democracies, for instance by presenting democracy (understood as the rule of majority) as a kind of “trump card” which should prevail over other constitutional values, including the rule of law and the protection of minorities.⁸

If the majority is “the people”,⁹ its will must thus prevail at all costs and immediately. Moreover populists tend to construct a false dichotomy between constitutionalism (especially post-WWII constitutionalism) – which aims to limit political power – and populism, which is based on an extra-majoritarian approach to the constitutional system.

Finally, the Italian case is of the greatest interest because the country is a founding member of the European Communities (now European Union). Therefore, the constitutional implications of populist politics have to be considered not only within the national framework but also in the wider context. Indeed, one of the few elements that Lega and MoVimento 5 Stelle share is an evident anti-Europeanism that presents itself in different forms. Sovereignism (“sovranismo”) is one of these forms. The combination between populism and sovereignism¹⁰ has been labelled “PopSovism”:

The populist component of PopSovism [populist sovereignism] puts itself on the side of “the people”, defined as a country’s native ethno-cultural group(s), which must be defended against both national and transnational “elites” and against other “outsiders” such as immigrants. Its sovereigntist component advocates a return to an international order in which the nation-state, guided by the self-identified interests of the native ethno-cultural population, maintains or re-asserts sovereign control over its laws, institutions, and the terms of its international interactions. Supra- or inter-national actors and global market forces are seen as restrictions on the nation-state that should be reduced and/or opposed.¹¹

Other scholars have labelled the approach of Lega as a form of nativist nationalism,¹² which is based on a constant (but also empty) appeal to national values, needs and interests. Salvini’s motto “Italian first” echoes Trump’s approach and inevitably (at least before his support to the Draghi government) implies, as a consequence, the rejection of the migrant, understood as a potential outlaw. For the purpose of this chapter, however, we will treat Lega as a case of PopSovism.

10.2 The Populist Wave from the Immigration Policies Standpoint: Between Continuity and Discontinuity with the Past

Since the last decade of the last century, that is when Italy permanently became a country of immigration (as final destination or just as country of transit), the Italian legal system has been endowed with increasingly more restrictive legislation on the conditions of access and stay of third-country nationals, backed up with increasingly severe sanctions, including criminal ones.¹³ This approach has been constantly pursued, despite the alternation between centre-left and centre-right wing governments. From this perspective, restrictive measures introduced from 2018 onwards, when populist parties came to Government, have done nothing but continue an existing migration control strategy, by further curtailing the grounds allowing entry and stay on the territory, as well as by tightening the sanction apparatus.

From another point of view, however, the political season launched by the populist majority of Lega and MoVimento 5 Stelle has been marked by at least two distinctive features: on the one hand, new types of narrative and arguments have supported anti-immigration policies; on the other hand, for the first time the firm political choice of closing borders, namely maritime ones, was announced and implemented. These two aspects are strictly connected.

As to the narrative, populist parties were able to intercept a sentiment of deep discontent among the middle and lower-middle layers of society, rooted in the economic recession followed by the economic crisis of 2007–2008,¹⁴ and to turn it into adherence to political programmes permeated with nationalist and anti-immigration rhetoric. In this context, the former dichotomy between regular and irregular migrants (according to which only the latter could be considered as potential threats to public order), was replaced by a much more aggressive narrative targeting economic migrants as such, described as potential invaders, job thieves, false refugees or even criminals.¹⁵

These are the ideological and discursive premises upon which the “closed ports” policy has been based. A fear of invasion was constructed by populists on the massive increase in arrivals from the sea which followed the Arab Springs¹⁶ and even more so with the latest “refugee crisis”.¹⁷ In this context, the promise to “stop landings” was one of the key points of the election campaign that brought to power the “Government of change” in 2018. In practice, however, the number of arrivals had already decreased as a result of the Memorandum of Understanding signed by Italy and Libya in 2017, at the price of complicity with the unspeakable violence suffered by migrants in the Libyan detention centres.¹⁸ Nevertheless, the populist majority attempted to offer the public opinion the image of robust interventions aimed at strengthening the protection of the maritime borders.

10.3 Above International Law: The “Closed Ports” Policy

The expression “closed ports” policy includes two different sets of initiatives, which will be examined separately below. The common feature of these measures, which makes them resemble the Australian “no way” approach,¹⁹ is that they are aimed at closing maritime borders, at least during the time for the negotiation of migrants’ resettlement to other countries, either by keeping migrants within some sort of legal limbo, as long as they are placed outside of the mainland (usually on boats); or without taking into account migrants’ personal situation at all, denying them access to national waters.

Indeed, that is the strategy adopted by Australia in the infamous Tampa case of 2001, where for eight days national authorities refused to disembark a Norwegian container ship that had rescued hundreds of asylum seekers, mainly Afghan Hazaras fleeing the Taliban, who were subsequently diverted to New Zealand and Nauru.²⁰ In the aftermath of Tampa, precisely in order to avoid new deadlocks involving irregular aliens, it was agreed to amend the International Convention on Maritime Search and Rescue (SAR, 1979) and the International Convention for the Safety of Life at Sea (SOLAS, 1974) by specifying that the obligation to assist castaways applies “irrespective of the nationality or status of the person and the circumstances in which he or she is found”.²¹ The amendments did not remove any doubt as to the specific responsibilities of coastal and flag States, but made it clear that there is an obligation to cooperate on the part of all neighbouring States that have had knowledge of the accident, and that none of them are released from this obligation until castaways are disembarked.²²

Notwithstanding these rules of international law, to which Italy is certainly bound having ratified the amended conventions, Italy’s “closed ports” policy is based precisely on the aim of reaffirming the sovereignty of the State and its unconditional power, in implementing the “will of the people”, to defend its borders from any unwanted intrusion.

The first relevant episode concerns the military ship Diciotti, which in August 2018 had loaded on board almost two hundred people rescued by the Italian Coast Guard in international waters. The ship remained in the port of Lampedusa for three days and then another five in that of Catania, before the Minister of the Interior authorised the disembarkation of the migrants held on board. The goal was to negotiate with other states of the EU on the redistribution of the foreigners before allowing them to leave the rescue ship. A similar episode occurred a year later, when more than one hundred shipwrecked migrants were detained on board the military ship Gregoretti from 26 to 31 July, pending relocation agreements.

An even more radical approach is that of bans on NGO vessels that, since the interruption of the Mare Nostrum operation in 2014,²³ have been carrying out search and rescue activities along the central Mediterranean route, often requesting permission to land in Italy as a safe port closer to the place of recovery of migrants. On the assumption that such operations not only entailed the landing of irregular foreigners on Italian territory, but also constituted a pull-factor for further departures, the Minister of the Interior instructed the maritime border authorities to deny entry to anyone who allegedly carried out a rescue activity in order to bypass immigration laws. According to these directives, NGOs were responsible for conducts such as “possible manipulation of international obligations in the field of search and rescue”; or “mediated cooperation [implied: with smugglers] which, in fact, encourages the crossing by sea of foreign citizens without residence permit and objectively facilitate their irregular entry into the national territory”.²⁴

These directives have been severely criticised by the United Nations High Commissioner for Human Rights. In particular, a letter of 15 May 2019 signed by five Special Rapporteurs²⁵ highlighted its radical incompatibility with the obligations arising from the UNCLOS, SOLAS and SAR Conventions on the International Law of the Sea, as well as with the principle of non-refoulement. The inhibition of rescue activities carried out by NGOs and other private vessels in the central Mediterranean, in fact, entails very serious risks for the fundamental rights of migrants, who are increasingly destined to lose their lives in a shipwreck or to be recovered by the Libyan Coast Guard and taken back to a country where arbitrary detention, torture and sexual violence represent a tragic daily routine.²⁶

10.4 A Legal Basis for the “Closed Ports” Policy: The Security Decree 2019

Not only were the above-mentioned recommendations of the UN Special Rapporteurs not heeded, but shortly afterwards the Government approved, under an accelerated procedure which reduces the role of Parliament to the mere approval of the executive’s discipline, the Decree Law n. 53/2019 (hereinafter “Security Decree 2019”),²⁷ aimed both at providing an express legal basis for the entry-ban directives, and at introducing severe administrative sanctions against offenders. This reform thus represents a further step of the “closed port” policy, obtained by granting a legal basis to the Minister of the Interior’s initiatives.

The decree, in fact, conferred to the Minister the power to issue orders aimed at prohibiting or limiting the entry, the transit or the stay in territorial waters of ships (excluding military or state-owned vessels), where reasons of public order and safety occur, or where a foreign ship passage qualifies as “prejudicial” under the UNCLOS Convention, namely because the ship “engages in the unloading of any person contrary to the immigration laws and regulations of the coastal State” – Article 19, para. 2 (g).²⁸ In case of violation, the shipmaster and the ship owner could be served with an administrative sanction of up to 1 million euros, together with the confiscation of the boat.²⁹ Against this background, especially during the first Conte government, law can be seen as a contributing factor to the incremental undermining of migrants’ rights, instead of a source of resilience. However, as we will see below, judges have counteracted as a shield to impede constitutional backsliding.

It is pretty obvious that the discipline introduced by Security Decree 2019 was affected by the very illegitimacy which the Special Rapporteurs had pointed out right before it was approved. Indeed, as a matter of hierarchy of legal sources, national rules cannot affect the system of obligations set by supranational instruments that Italy has ratified and been bound by. In addition to those criticisms, the Italian President of the Republic, at the moment of the enactment of the reform, pointed out in an official communication to the Parliament that the severity of the administrative sanctions raised serious doubt about their compatibility with the principle of proportionality, which can be drawn from the Italian Constitution and which is codified in Article 49 of the Charter of Fundamental Rights. Although the latter literally refers to criminal punishment and does not mention administrative penalties, the “administrative” sanctions for shipmasters could fall within the classification of “criminal penalties” under the Engel criteria,³⁰ due to their seriousness and deterrent purpose. Despite these critical aspects, neither the Special Rapporteurs’ recommendations nor the President’s concerns were taken into account by the populist majority: any criticism against the policies enacted was rejected as anti-democratic; and any attempt to restore the rule of law was considered an instrument of conservatives to counter the “will of the people”.

10.5 Litigating the “Closed Ports” Policy: The Sea Watch and Open Arms Cases

The first Ministerial entry ban based on the Security Decree 2019 was issued against the vessel Sea Watch 3, led by Captain Carola Rackete, after it had rescued several dozen irregular migrants in international waters in June 2019. Sea Watch’s lawyers first applied to an Administrative Court, arguing that the ban was illegitimate under international law and its effects should be immediately suspended. The Court dismissed the suspension demand on the grounds that children, pregnant women and other vulnerable persons had already been brought to the mainland. Subsequently, an application for interim measures under Rule 39 was made to the European Court of Human Rights (ECtHR), relying on Articles 2 and 3 of the Convention. After having questioned the Italian Government about the situation on board, the ECtHR decided not to grant interim measures, which implied that disembarkation in Italy was not ordered. The ECtHR only recommended that Italy continued to provide all necessary assistance.³¹ This outcome could at first sight be considered as an expression of judicial self-restraint with respect to reviewing the legitimate migration policies; more likely, however, it is in line with the well-established Strasbourg jurisprudence that grants interim measures in a limited number of cases, most of which related to pending expulsions and extraditions. It was after this failed attempt to obtain a favourable decision regarding the request for interim measures, that Commander Rackete decided to break the blockade imposed by the patrol boats of the Italian border authorities. The Commander directed the ship carrying the shipwrecked people, who were at the limit of their physical and psychological strength, to the port of Lampedusa. Here, she was immediately arrested for the criminal offences of resisting a public official and resisting a warship. A few months later, as it will be shown in more detail below, the arrest of Carola Rackete was found to be illegitimate by the Court of Cassation (i.e., the Italian court of last instance on issues of law), which recognised the legitimacy of the operation as it was carried out in fulfilment of the duty to rescue at sea. In the light of this outcome, we can conclude that, on the one hand, the judiciary (namely the ECtHR) was initially not able to promptly react to (what later turned out to be) an unlawful interference with the fundamental rights to personal liberty and physical integrity of both the ship’s Commander and the castaways; on the other hand, the prevalence of those fundamental rights over border protection emerged at a later stage before a national high court, thus representing from that moment on a crucial reference at least for the national case-law.

A few weeks after the Sea Watch accident, a similar stalemate arose for the NGO Open Arms’ ship. Although in this case an Administrative Court ordered the suspension of the entry ban, the Minister of the Interior continued to deny permission to disembark. After nineteen days, the situation was “resolved” thanks to the intervention of the Prosecutor’s Office of Agrigento: noting that the authorities failed to reply to the shipmaster’s requests for a place of safety to be assigned, the Prosecutor started an investigation against unknown persons for the offence under Article 328 of the Penal code (unjustified refusal to act) and ordered the seizure of the ship, thus obtaining (as indirect effect of the seizure order) the disembarkation of the people on board.

The epilogues of the Rackete and Open Arms cases are relevant to investigate the responses of the legal system to attempts to unduly interfere with the fundamental rights of foreigners: that is, the importance of the independence of the Italian judiciary, including prosecutors, with respect to the executive power, and the related possibility of re-establishing guarantees by means of prosecution and within the criminal process. Even when the legal system did not seem to have effective tools at its disposal, the judiciary has shown to be able to find creative, unconventional solutions to address violations, as in the mentioned case of the seizure of the Open Arms in order to obtain the disembarkation of migrants. The importance of the national criminal law in safeguarding the interests of migrants has been confirmed in another even more remarkable set of situations: criminal proceedings initiated against the Minister of the Interior for unlawfully depriving migrants of their liberty on board of ships. We shall now turn our attention to these issues.

10.6 The Criminal Charges for Illegitimate Deprivation of Personal Liberty Aboard Ships

With regard to the conditions of migrants held on board pending the disembarkation bans and the entry bans, the Italian Ombudsman on the Rights of Persons Deprived of Personal Liberty had expressed concerns since, in its opinion, the circumstances qualified as de facto detention without proper legal basis and without judicial control.³² In that regard, the Ombudsman pointed out that these cases raise the same issues that led the European Court of Human Rights to find a violation of Article 5 in the case Khlaifia and others v. Italy, in which Italy was condemned by the Grand Chamber for the violation of Article 5 of the Convention,³³ for having kept three Tunisian nationals for about ten days within the reception centre of Lampedusa and later on board private ships docked in the port of Palermo (used as a temporary detention centre) pending the expulsion procedure.

Personal freedom as a fundamental right threatened by the policy of “closed ports” has come to the attention of the Italian judiciary too. With regard to the Diciotti, Gregoretti and Open Arms cases, the Minister of the Interior at that time, Mr. Salvini, was charged with the crime of kidnapping (Article 605 of the Italian Criminal Code). Since the alleged offence was arguably committed by a Minister in the exercise of his duties, the accused was covered by immunity unless the Senate granted authorisation to proceed against him. While in the Diciotti case the Senate refused authorisation on the grounds that the Minister had pursued the public interest without irreversibly infringing a fundamental right,³⁴ in the Gregoretti and Open Arms cases, the same Assembly granted the authorisation and the criminal trials are currently pending.³⁵

Technically, the different outcomes regarding the authorisations to proceed with the criminal trials against Salvini derive from the fact that, according to the testimonies collected, the decision not to allow disembarkation in the Diciotti case was taken collegially by the Government, while in the subsequent Gregoretti and Open Arms cases it was a decision taken by the Minister of the Interior alone. Beyond these formal reasons, however, one fact certainly had a decisive bearing on the outcome of the two procedures: while the request for authorisation to disembark in the Diciotti case came under the first Conte Government, supported by a majority which included the Lega, that is the party of the accused; vice versa, the request for authorisation in the other cases came under the “Conte 2” Government, after the Lega had left the Government and had been replaced by the Democratic Party.

10.7 The Criminalisation of Search and Rescue Activities

Since 2017 several criminal investigations for the offence of facilitating irregular immigration (Article 12 Italian Immigration Law) have been initiated against crew members of NGO ships who, after carrying out search and rescue activities along the Central Mediterranean route, brought shipwrecked people to Italy.³⁶ So far, there have been no convictions, and criminal proceedings against NGOs are either in the phase of investigation, or have been dismissed. However, this phenomenon is of paramount importance in order to investigate the wider issue of “criminalisation of solidarity”, which is a source of concern throughout Europe, both at sea and land borders.³⁷

These initiatives are difficult to classify. On the one hand, they seem to pursue, through prosecution, the same aims as those of the “closed ports” policy, namely cracking down on illegal immigration and its (alleged) facilitators. On the other hand, as the Italian judiciary (including prosecutor offices) is completely independent from the executive power, criminal proceedings against individuals who participate in search and rescue cannot be traced back to migration policies as set by the Government. From a strictly legal point of view, these proceedings fall within the scope of the principle of mandatory prosecution embedded in the Italian Constitution: given that bringing foreigners without documents to Italy potentially falls within the offence of facilitating illegal immigration, the public prosecutor is formally obliged to assess criminal responsibility. The general principle of mandatory prosecution shall be read in conjunction with the code of criminal procedure, which provides that the prosecution shall be dropped where the accused has acted under some exemption, such as necessity or in the fulfilment of the duty to rescue.³⁸ However, the misleading narrative spread by populists (“NGOs create extra ordinem humanitarian corridors”, “NGOs are a pull-factor for further departures”, etc.) can somehow influence the prosecutors’ assessments that the conduct of the crew members could be blameworthy enough to justify the opening of investigations.

Such an attitude becomes clear when examining the judicial orders for the seizure of ships. These orders are the main documents that can give us indications as to the reasons underpinning prosecutors’ assessments since so far there has not been any judgments on the merits. For instance, in the Iuventa ship case, the judge for the preliminary investigations of Trapani held that “the praiseworthy and continuous presence of rescue ships in the Libyan territorial waters has made it even easier to send more and more dinghies unsuitable for navigation and significantly reduced the risks for smugglers to be intercepted in international waters allowing them to abandon the boats in Libyan territorial waters in the awareness of the immediate rescue activities carried out by the NGO boats”.³⁹ Subsequently, in the Open Arms case, the judge for the preliminary investigation of Catania pointed out that the crew members violated the “Code of conduct for NGOs”⁴⁰ when they did not wait for the Libyan Coast Guard to intervene, thus engaging in illegal conduct “because the NGO cannot be allowed to create autonomous humanitarian corridors outside of state and international control”.⁴¹

Even in this field, however, the Italian judiciary has so far proved to be more of a guarantor of fundamental rights than a further oppressor of them. This has become clear in the already mentioned case of the arrest of the Sea Watch commander Carola Rackete, which was declared illegal by the judge for preliminary investigations, with a ruling confirmed by the Court of Cassation.⁴² The judges on both instances have in fact clarified that: i) the duty to rescue enshrined in the conventions of international law (UNCLOS, SAR) ends with the transport of shipwrecked persons to a safe port; ii) the choice of the latter is not only up to States but also to the ship’s Commander on the basis of his assessment of each single case (weather conditions, distances, safety of coastal countries, etc.); iii) this legal framework is well known to the border authorities, so that they are in a position to distinguish the situations where a Commander is committing an offence (such as failing to comply with the authority’s order not to cross maritime borders), from those where she or he is acting in the performance of the duty to rescue; iv) in the latter cases, border authorities are not entitled, under the Italian code of criminal procedure, to place the Commander under arrest. Although Carola Rackete was arrested not for facilitating irregular immigration, but for resisting a public official and resisting a warship (see above), these principles seem to have a much broader scope, capable of justifying the commission of a wide array of offences (including the one of facilitating illegal immigration), when necessary to fulfil the duty of assistance. Indeed, in cases which have followed the Rackete’s one, prosecutions have been dropped on account that the accused Commanders acted under necessity and/or had fulfilled the duty of rescue as provided by international conventions on the law of the sea.⁴³

What is even more interesting to observe is that, by voiding the arrest of Rackete for resisting a public official and a warship, the Court of Cassation has implicitly recognised, upon a civil society actor, a sort of “right of resistance” to those police activities that, contrary to the hierarchy of interests at stake (life and physical integrity versus border control), attempted to hinder the success of the rescue operation.

Still, the criminalisation of humanitarian assistance is a source of concern, even where proceedings are dismissed, due to the risk of deterrent effects towards the whole of civil society. As long as providing help to irregular migrants (or to those whose status is not known) can lead to criminal prosecution, a “chilling effect” may spread among potential rescuers, resulting in further deterioration of social and human ties between citizens and foreigners.

The origins of this situation, however, lie long before both the “Government of change” and the previous governments. The obligation to impose sanctions of a criminal nature for any conduct facilitating irregular entry of third-country nationals, including conduct which is not carried out for financial gain or as part of organised smuggling activities, stems from the combination of provisions in Directive 2002/90/EC⁴⁴ and Framework decision 2002/946/GAI⁴⁵ (the so-called EU Facilitators’ Package). Through these provisions, the European legislator intended to target the widest possible range of conduct aimed at facilitating irregular entry. In order to reduce the risk of criminalising conduct motivated by purely humanitarian aims, Article 1(2) was included in Directive 2002/90/EC, allowing the (mere) possibility for the Member States to exclude liability in cases where the facilitation of irregular entry or transit is motivated by the purpose of providing humanitarian assistance. However, Italy (as well as most Member States) has not introduced such a “humanitarian clause” allowing the exclusion of liability: this is one of the reasons why the current proceedings against individuals who have assisted migrants are so complex.

In conclusion, the origins of the problem of criminalisation of solidarity can only partially be found in the most recent populist policies. From a strictly normative point of view, in fact, this problem has much more distant roots. It is clear, however, that the present social context, conditioned also by the narratives of a populist mould, has contributed to “activate” criminal legislation that had remained dormant until now. In other words, if the origins of the phenomenon are quite ancient insofar as primary criminalisation is concerned, its practical and undesirable consequences are experimented with today because the social conditions for applying the criminalisation have changed.⁴⁶

10.8 A Wind of Change? Only in Part

The “Government of change” fell in August 2019 and was replaced (without new elections) by a new majority formed by the centre-left wing Partito Democratico and (again) the Movimento 5 Stelle. The new coalition did not include the party that had been the main promoter of anti-immigration policies in 2018–2019 (the Lega). This resulted in a number of initiatives which showed a certain discontinuity with the previous season. The first one has been the Malta agreement for the relocation of rescued asylum seekers,⁴⁷ after which no more entry-bans towards NGOs have been issued and their vessels are normally allowed to disembark, although only after a certain amount of waiting,⁴⁸ during which authorities carry out the negotiations for the relocation of castaways in other Member States. Moreover, Law Decree n. 130/2020 has introduced a new form of special protection permit, has enhanced reception services and – more importantly to the purpose of this chapter – has repealed the administrative sanctions for boat masters who violate entry bans.

However, besides those overall encouraging signs, there is clear and worrisome evidence of continuity with the past. First, the strategy of externalisation of borders is still ongoing, given that the 2017 Memorandum of Understanding between Italy and Libya has been renewed in February 2020 and that Italy is still channelling funds to Libya to manage migration and to train its coastguard.⁴⁹ Second, NGOs’ rescue vessels are often blocked by Italian authorities after their missions, with bogus arguments of “administrative irregularities”, resulting in the depletion of the civil society’s rescue capacities along the central Mediterranean.⁵⁰ The outbreak of COVID-19 in Italy has further exacerbated the situation, as migrants upon arrival serve a period of quarantine aboard ships.⁵¹ This “floating quarantine” measure raises a number of issues from the standpoint of balancing the need to protect public health with the fundamental rights of migrants and asylum seekers, as detention on ships entails deprivation of personal liberty, which is in turn a risk for the psycho-physical health of migrants on board, and could lead to inhuman and degrading treatment.

Third, and most importantly, the Minister of the Interior’s power to issue entry bans has been maintained and the administrative sanctions have been replaced by criminal sanctions (Decree Law n. 130/2020, art. 1, para 2). This latest development, although it may at first sight seem like a new crackdown, may in fact represent at least some progress compared to the previous legislation. From now on, in fact, the offence of violating the entry bans will have to be assessed by a criminal judge, who will necessarily have to follow the principles indicated by the Court of Cassation in the case of Sea Watch-Carola Rackete.⁵² On the basis of these principles, the criminal courts will have to recognise that the rescue operation only ends when castaways are transferred to the mainland. As a consequence, the new offence of violating entry bans is very likely to be excluded, just as already happens with the other mentioned offences (facilitating illegal immigration; resisting a public official and a warship), on the basis of the duty to rescue.

10.9 Conclusion

In this chapter we tried to respond to the research questions of the volume in order to see to what extent restrictions of the rights of migrants represent a form of democratic decay in populist times. In so doing, we also explored the possibilities and limitations of legal resilience to safeguard migrants’ rights against further regression in times of populism. Although the recent experience of a populist Government resulted in more restrictive and repressive immigration laws, we have shown that the immigration policies of closing borders, segregating migrants and approaching foreigners’ mobility only as a public order issue, even at the cost of violating fundamental rights such as life and personal liberty, both preceded and continued after the populist wave; and has contributed to the construction of some sort of wall separating the lives of citizens from those of third-country nationals. Useless and criminogenic measures have sprung up across more than two decades, aimed at, on the one hand, satisfying an induced demand for greater security and, on the other hand, worsening those same conditions of marginalisation of “the foreigners” that fuel the fears of the citizens, thus building their support for those measures that look more like the cause (rather than the solution) of the problem.

Looking at the future, given that anti-immigration positions are still majoritarian among voters, the challenge against unjust legislation and practices seems to have more chance of success if pursued through judicial remedies rather than by legislative reforms. After all, this is precisely what happened during the last decade, where the most important achievement in terms of restoring the rule of law and stopping systemic violations of fundamental rights in the field of immigration have been obtained through litigation before the EU Court of Justice (El Dridi), the European Court of Human Rights (Hirsi, Khlaifia) and also national jurisdictions. It was precisely the latter that laid the legal groundwork for overcoming the two main constituent elements of the Italian “wall” erected against boat migrants: the practice of unlawful deprivation of personal liberty on board ships, which was tackled through the seizure functional to disembarkation and the start of investigations for kidnapping against the Ministry of the Interior; the criminalisation of search and rescue activities, which was overcome through the recognition of the justification of the duty to rescue, on the basis of the relevant Conventions on the International law of the sea.

Populists also tend to perceive limits and procedures as obstacles in the path of establishing the democratic principle. Moreover, populists depict courts and independent agencies as biased and non-neutral since “independent judges and courts are understood as an illegitimate constraint on majority rule, and hence legal means are to be employed to counter this situation”.⁵³ These considerations clarify why populists seem to be on a permanent political campaign. The Italian case is particularly emblematic of this trend, as the (former) Italian Deputy Prime Minister and Interior Minister, Matteo Salvini, has recently been responding to critics with the same mantra – “you should first resign and run for elections instead of doing politics from the judicial bench”⁵⁴ – but this was a rhetorical element already present in the approach endorsed by the Berlusconi government.⁵⁵

Against this background, contemporary populisms do not emerge completely out of the blue, since they are a consequence of long-standing issues that have characterised the political contexts in which they operate. In parallel, it is paramount to challenge the current immigration policies on the grounds of language and narratives. As the rhetoric of the “invasion of economic migrants” and “false refugees” fuels a vicious circle leading to increased securitisation and criminalisation, some sort of cultural revolution is required to reverse this course of action. This means reintroducing the (lost) human element within the discourses on immigration and replacing the concept of “mass immigration”, evocative of a one-way phenomenon bearing public order problems, by the more nuanced one of “mobility of people”, that is a global phenomenon coessential to human nature.

11 The Restriction of Refugee Rights during the ÖVP-FPÖ Coalition 2017–2019 in Austria Consequences, Legacy and Potential for Future Resilience against Populism

Margit Ammer and Lando Kirchmair

11.1 Introduction

This chapter analyses the lasting impact of the 2017/2019 government coalition on the state of refugee rights in Austria. We investigate to what extent the policies and legal initiatives of this government restricting refugee rights feature democratic decay, in particular elements of populism. The legacy of this coalition is of interest also for constitutional scholars as the Austrian Government was represented (again) by the Austrian People’s Party (Österreichische Volkspartei, ÖVP) and the Freedom Party of Austria (Freiheitliche Partei Österreichs, FPÖ), a so-called radical right populist party.¹

First, we provide an account of refugee rights restrictions during the ÖVP-FPÖ coalition 2017/2019 (Section 11.2). Afterwards follows a diagnosis of whether the quality of democracy and the rule of law is in decay, stagnates or rises in Austria in connection to these restrictions. We argue that these restrictions show elements of populism and are thus interlinked with the phenomenon of democratic decay. This decreases the functionality of Austrian democracy and the rule of law (Section 11.3). In light of this finding, we show what constitutional law has done, can and could do to keep in check, prevent but also remedy such restrictions. We will particularly look at how human rights (including fundamental rights) as guaranteed by the Austrian Constitution and applied and interpreted by the Austrian Constitutional Court can or could provide relief (Section 11.4).

11.2 An Account of (Further) Restrictions of Refugee Rights by the 2017/2019 ÖVP-FPÖ Coalition

The FPÖ is one of the most successful ‘populist radical right parties’² in Western Europe.³ While in the early 1990s still on the fringes of the political spectrum, it has gradually become an ‘agenda setter’ or ‘opinion leader’ in the Austrian political system, at least when it comes to migration issues. After a string of electoral victories, it has arrived in the Austrian political mainstream. It has already formed part of the Austrian Government three times since 2000, always in cooperation with the ÖVP. Lately, the FPÖ rose to new heights under its former leader Heinz-Christian Strache when scoring election results, at a size which was previously only achievable for the two traditionally leading Austrian parties, the ÖVP and the Social Democratic Party of Austria (Sozialdemokratische Partei Österreichs, SPÖ). The almost twenty-six per cent of all votes at the 2017 Parliamentary Elections leading to the fourth government participation of the FPÖ in Austrian history, lasted until the so-called ‘Ibiza affair’. This chapter focuses on the ‘lasting output’ in the area of asylum of the third ÖVP-FPÖ Government coalition which endured not even one and a half years.

Restrictive trends have been prevailing in the Austrian immigration and asylum policies for the last decades.⁴ As also suggested in the literature, asylum policy has become – influenced by the FPÖ – increasingly deterring since the 1990s also under ‘Grand Coalitions’ between the ÖVP and the SPÖ; this was justified with the prevention of ‘asylum abuse’.⁵ This accelerated with the sudden rise in the number of asylum seekers in 2015 and 2016 (some of them only transiting) leading to several amendments in the Asylum Act under the ÖVP-SPÖ Government.⁶

The FPÖ has a long history of engaging in anti-migrant rhetoric. Immigration has been the central topic of the FPÖ since Jörg Haider took over the lead of the party in 1986, and even more since Heinz-Christian Strache became head of the party in 2005. This focus was spurred by the high numbers of asylum seekers in 2015 leading to very successful results in the 2016 Presidential Elections and the 2017 Parliamentary Elections.⁷ The topics of immigration and integration are for the FPÖ so dominant that they also feature in other policy fields, e.g., social policy or education policy. In this vein, the 2017 FPÖ election programme contained nativist scatters in almost all topics.⁸

The FPÖ has been influencing the positioning of other political parties including the two big parties of the centre, the ÖVP and the SPÖ, even without participating in governments. ÖVP and SPÖ have gradually taken over the rhetoric and politics of the FPÖ with its anti-immigration slogans since the early 1990s within the framework of the grand coalition.⁹ In recent years, in particular the ‘new’ ÖVP under Sebastian Kurz has increasingly sought to assume the role occupied by the FPÖ. During the 2017 election campaign for the Parliamentary Elections, Kurz stressed several times that he ‘closed the Balkan Route’, criticised the migration policy of Angela Merkel and supported the positions of the Visegrád group in the EU. At one point, the FPÖ even accused Sebastian Kurz of ‘stealing’ their policies and portrayed their leader H C Strache as ‘thought leader’ (Vordenker) to which other parties would finally follow suit.¹⁰ With this convergence of their agendas, Kurz’ ÖVP and Strache’s FPÖ formed a government coalition (2017–2019). In the Parliamentary Elections of October 2017, the ÖVP (Liste Kurz) succeeded with a very restrictive stance against refugees and asylum seekers outpacing the FPÖ.¹¹ By entering into a coalition with the FPÖ, issues of radical right parties (e.g., national identity, abuse of the welfare state, immigration and security) were legitimised.¹²

In contrast to previous ÖVP-FPÖ coalitions, the content and wording of the 2017–2022 Government Programme showed a considerable incorporation of FPÖ positions,¹³ and a new focus was placed on the ‘extremely restrictive exclusionary treatment’ of asylum seekers, beneficiaries of international protection and foreign nationals in general.¹⁴ Moreover, for the very first time the FPÖ was responsible for its central topics including asylum by receiving departments such as the Ministry of the Interior.¹⁵ Very importantly, there was a ‘better ideological compatibility’ with the coalition partner¹⁶ since the ÖVP under Kurz embarked on a course overlapping strongly with the priorities of the FPÖ.¹⁷

Reactions to the FPÖ participation were in 2017 much ‘softer’ than in 2000, since in 2017 it seemed to be ‘normal’ that a populist radical right party participated in a European government. In the public opinion the ÖVP-FPÖ coalition did well. A Eurobarometer survey revealed that the confidence in the government after one year since its formation, was at the highest level since mid-2011.¹⁸

In the following, an overview of the main restrictions in the area of asylum introduced during the 2017/19 government is given.

11.2.1 Asylum as an Issue of ‘Order and Security’

In contrast to previous FPÖ government participations, this Government Programme¹⁹ clearly showed the handwriting of the FPÖ,²⁰ but arguably also of the ‘new ÖVP’ led by Sebastian Kurz. Even though in 2018 the number of asylum applications filed in Austria was the lowest since 2010,²¹ images of large movements of asylum seekers were used, strongly influenced by the experiences of the 2015 so-called refugee crisis. The programme also contained elements allowing nativist interpretations. For example, the preamble stressed that the governing parties would be working solely for Austria’s citizens.²² One of the leading principles of the Programme was ‘Heimat’ (home land):

We want to preserve our homeland Austria as a country worth living in with all its cultural advantages. This also includes deciding for ourselves who is allowed to live with us as an immigrant and putting an end to illegal migration.²³

The Programme claimed that the ‘free and solidary society’ would be ‘increasingly challenged by the mistakes in migration policy of the past years’ and linked the protection of the welfare state from abuse with the stop of ‘illegal’ migration to Austria.²⁴ What is more, it connected the will of the Austrian population to the end of ‘illegal’ migration:

Our migration policy should be designed in such a way that it can be supported by the population. We will therefore handle it in such a way that Austria remains a secure, stable state in which people can live in prosperity and social peace. To this end, illegal migration into our country must be stopped and qualified immigration geared to Austria’s needs.²⁵

The topic of asylum was primarily located in the chapter about ‘order and security’ and the objective of the asylum policy was defined as the ‘consistent prevention of asylum abuse and creation of a framework for rapid asylum procedures’.²⁶ To achieve this objective,²⁷ asylum was briefly mentioned as a form of ‘temporary protection’ as opposed to a form of a durable solution in Austria, and as something to be granted only to those who ‘really need it’.²⁸ It was stressed that ‘illegal’ migration would ‘usually’ take place by abusing the right to asylum.

11.2.2 Towards Zero Asylum Seekers Arriving in Austria?

The Government Programme stressed that Austria would work towards the development of an EU asylum policy ‘that relieves the burden on Austria and strengthens the returns of economic migrants’.²⁹ The reduction of asylum applications was also a goal pursued at the European Council in June 2018, where Chancellor Kurz was in favour of ‘Anlandeplattformen’ (docking platforms) outside Europe,³⁰ which implied that persons rescued at sea should be brought to third states instead of to the EU.³¹ This concept was taken over by the EU Council as ‘regional disembarkation platforms’³² and further developed in the documents of the European Commission.³³ In the same vein, during the Ministerial Conference on Security and Migration organised by the Austrian EU Council Presidency in September 2018, the Ministries of the Interior of Italy and Austria backed a proposal for asylum seekers to be processed on board ships rather than brought to shore in Europe.³⁴ Building on the European Council Conclusions from June 2018, the Austrian Ministry of the Interior and the Danish Ministry of Immigration and Integration proposed to shift the policy focus in favour of providing protection only to ‘the most vulnerable migrants’ in countries of first reception near conflict areas.³⁵ Thus, no asylum seekers should arrive in Europe anymore.

Only a few months later, the Minister of the Interior at that time, Mr. Kickl (FPÖ), announced the objective that ‘basically nobody, […] should be able to file an asylum application in Austria anymore’, since Austria would be surrounded by secure third countries.³⁶ At the same time, initial reception centres of asylum seekers (Erstaufnahmezentren) were renamed to ‘departure centres’ (Ausreisezentren), even though the notion ‘Erstaufnahmezentrum’ is a legal notion (e.g., Sec. 1 GVG-Bund 2005). This was meant to signal that asylum seekers were not welcome in Austria and not in need of international protection.³⁷

While the ÖVP-FPÖ Government brought forward ideas to externalise protection, there were no initiatives promoting legal avenues for accessing protection in Austria – even though resettlement was mentioned in the Government Programme.³⁸ To the contrary, since 2018 Austria does not have any resettlement programme anymore.³⁹

The government finally decided to abstain from voting regarding the Global Compact on Migration (2018) even though Austria had previously contributed to its drafting. This raised considerable criticism as regards the role of Austria during the EU presidency as well as during the consultations leading to the adoption of the Compact. While Kurz in 2017 (at that time Minister for Foreign Affairs) was in favour of the Compact, he eventually changed his position, in particular after the Austrian right-wing Identitäre Bewegung had started to mobilise against the Compact and also the FPÖ opposed joining the Compact. It is noteworthy in this context, that the recent ÖVP-Green Party Government will abide by the decision not to join the Compact.⁴⁰ Given its less ambitious content, the Global Compact on Refugees did not meet any comparable resistance.

11.2.3 Further Restrictions in the Name of the Prevention of Asylum Abuse

In accordance with the Government Programme, the ÖVP-FPÖ Government proposed several legislative measures in the field of asylum aiming at the prevention of asylum abuse and achieving more effectiveness. These legislative acts, in particular the 2018 Aliens Law Amendment Act (FrÄG), the 2019 Federal Law on the Establishment of the Federal Agency for Care and Support Services, and the 2019 Social Assistance Act led to the restriction of the rights of asylum seekers and beneficiaries of international protection.

Apart from new legislative initiatives, policy implementation focused – as also visible in the Government Programme – on the withdrawal of protection status and returns. The number of first instance proceedings to revoke protection status quadrupled between 2017 and 2018,⁴¹ even though in much fewer cases protection status was actually revoked. Forced removals increased in 2018 by forty-seven per cent compared to 2017.⁴²

With the 2018 Aliens Law Amendment Act (FrÄG 2018)⁴³ the trend to ‘prevent abuse of asylum’ and ‘increase the efficiency of asylum and aliens law procedures’ continued. Measures interfering with the human rights of asylum seekers were undertaken. These included the authorisation of public security bodies to search asylum seekers and seize cash of up to EUR 840.00 per person to contribute to the basic care costs; the authorization to seize data carriers such as mobile phones and to evaluate the data stored on them in case of doubt in relation to identity or flight route;⁴⁴ and further restrictions with regard to freedom of movement of asylum seekers.⁴⁵ The actual necessity and proportionality of these measures in relation to the (controversial) objective of countering asylum abuse was not clarified.⁴⁶ For this reason, the UNHCR criticized the 2018 FrÄG by noting that the law conveyed ‘the broad impression that the vast majority of asylum seekers submit an asylum application that has no connection with the granting of protection’ and that a general danger would come from asylum seekers. The UNHCR also added that the measures – imposing a number of additional tasks on the competent authorities – did not appear to be suitable for achieving the objective of increased efficiency.⁴⁷

The government 2017/19 also made the already difficult access to the labour market for asylum seekers⁴⁸ even more cumbersome by abolishing access to apprenticeship schemes.⁴⁹

Finally, while not mentioned in the Government Programme, in 2019 the former FPÖ Minister of the Interior Kickl planned detention for potentially dangerous asylum seekers (a so-called preventive or security detention) without criminal offence; it was to be decided by the authority under the Ministry of the Interior after a risk analysis with judicial review only ex post.⁵⁰ Chancellor Kurz supported this plan and the government even agreed on the cornerstones of such ‘security detention’.⁵¹ However, a necessary amendment of the Federal Constitutional Act on the Protection of Personal Liberty⁵² would have required a two-thirds majority in the Parliament. Soon after the agreement on the cornerstones, the ‘Ibizagate’ – which finally led to the dissolution of the government – became public.

11.2.4 Abolishment of Independent Legal Assistance for Asylum Seekers

Despite sharp criticism by UNHCR,⁵³ NGOs,⁵⁴ academics,⁵⁵ and OHCHR,⁵⁶ the ‘Law on the establishment of a Federal Agency for Care and Support Services (BBU-G)’⁵⁷ was adopted in May 2019, gaining majority solely through the votes of ÖVP and FPÖ members of the National Assembly. The law abolished independent legal advice by NGOs. This idea stemmed from the FPÖ that had already accused NGOs earlier of ‘greed for profit’ and to be part of the ‘asylum industry’.⁵⁸

The new agency, owned by the Federal Government, which inter alia provides legal assistance in asylum and return procedures since the beginning of 2021, is subordinated to the Ministry of Interior, which is also responsible for the first instance asylum authority. The establishment of the agency was considered necessary for countering the strong dependence of legal assistance on external service providers. The Agency was also viewed as necessary for optimisation of costs and quality assurance.⁵⁹ While the exclusion of civil society from legal assistance in asylum and return procedures in itself already constitutes a considerable cut, it is questionable whether the legal advice provided by the Agency can be independent and impartial.

Although, according to the BBU-G, legal advisors must be independent and not bound by instructions, a closer look reveals that these requirements are compromised by the primary goals of the BBU-G and the organisational design of the Agency. The Federal Minister of the Interior, which is to exercise shareholder rights on behalf of the Federation as a hundred-per-cent owner of the Agency, will have considerable influence on the work of the Agency. The Minister also has an internal right to issue instructions, affecting all management decisions, and is – in support of his management and auditing rights – entitled to a comprehensive right to information. This influence raises serious concerns with regard to the right to an effective remedy and seems to conflict with the provisions of the EU Procedures Directive.⁶⁰ It is questionable whether legal assistance by the Agency can be independent and impartial since the Ministry of the Interior is the authority that is also responsible for the first instance of the asylum procedure. Even assuming that the substantive activities of legal advisors could take place without direct influence from the Minister, the proposed constellation is prone to indirectly influence the motives of legal advisors and to create an appearance of bias and inequality of arms.⁶¹

The Minister of Justice of the subsequent ÖVP-Green Party Government, Green Party member Alma Zadić that took office in 2020, has tried to implement the law in such a way that civil society can still provide input to the work of the Agency, for example, by appointing a former NGO person as head of a newly introduced department for legal advice, installing a quality advisory board, or staffing the supervisory board of the BBU GmbH also by external experts in addition to representatives of the ministries.⁶² Still, these efforts have not remedied the weaknesses mentioned above.

11.2.5 Restrictions for Beneficiaries of International Protection

Legislative amendments initiated by the ÖVP-FPÖ Government hampered the integration of recognised refugees by impeding access to citizenship and cutting social assistance for those with insufficient command of German or English. In particular, the 2018 Aliens Law Amendment Act (FrÄG 2018) increased the minimum duration of lawful and uninterrupted residence for the granting of citizenship to recognised refugees (from six to ten years).⁶³ Therefore, recognised refugees are no longer granted more favourable treatment than other foreign nationals.⁶⁴ Surprisingly, the explanatory notes to the draft bill⁶⁵ considered this change to be in compliance with Article 34 of the Refugee Convention that, actually, demands facilitation of naturalisation of refugees as far as possible. Many stakeholders including UNHCR, however, saw the tension.⁶⁶

The ÖVP-FPÖ Government introduced a new Basic Law on Social Assistance,⁶⁷ entering into force in June 2019, that made the full amount of social assistance for recognised refugees dependent on a certain level of German or English skills. More specifically, at least thirty-five per cent of the benefit was made dependent on employability at the labour market; such employability could be only assumed if the person has German level B1 or English level C1.⁶⁸ However, in December 2019, the Austrian Constitutional Court ruled that this provision was contrary to the constitutional principle of equality.⁶⁹

In this context, it must be also noted that the ÖVP-FPÖ Government restricted access to German language courses. The 2018 FrÄG abolished the entitlement of certain asylum seekers (those admitted to the asylum procedure and for whom there is a very high probability of being granted international protection) to German language courses. The legal provision containing the entitlement of asylum seekers to German language courses had entered into force only in 2018.⁷⁰ In addition, language courses beyond A2 level offered by the Labour Market Service (AMS) to beneficiaries of international protection, were reduced considerably.⁷¹

Under the new Basic Law on Social Assistance, beneficiaries of subsidiary protection can only be granted ‘core social assistance benefits which do not exceed the level of basic care’.⁷² The Austrian Constitutional Court did not regard this limitation as unconstitutional.⁷³

11.3 The Confluence and Interrelation of Populism and the Restriction of Refugee Rights in Austria: Is Democracy in Decay in Austria?

11.3.1 Are We Witnessing Populism in Austrian Politics?

While the rule of law and democracy crisis is among the most important issues of (European) constitutionalism and democracy studies in the early twenty-first century, the numerous studies analysing this crisis have led to a rapidly growing body of literature usually focusing on populism. By now libraries can be filled with studies on populism and an overview of the literature becomes difficult to oversee.⁷⁴ Jan-Werner Müller, for instance, prominently conceives of populism as ‘a moralized form of anti-pluralism’.⁷⁵ According to his definition, the decisive claim of populists is to be the true representatives of the people, which even goes so far as populists themselves, in an anti-institutional manner, claiming that it is them and only them who represent the people. Thereby populists appeal to a ‘unity’ and ‘community’, which constructs the ‘other’ as an enemy. This ‘othering’ aims to exclude, among others, asylum seekers. Wojciech Sadurski goes beyond such a discourse-related understanding of populist politics and identifies populism with actions. Thereby he also includes ‘hostility to institutional pluralism’ in his understanding of populism.⁷⁶

We will refer to populism here broadly speaking as a phenomenon constituting an important challenge to discursive and institutional pluralism. In so doing, this contribution identifies, among several other important criteria for the current misery, also the danger represented by political lies and voter manipulation as a key issue and problem.⁷⁷ Thereby it becomes clear that ‘populists’ do not actually care for the interest of the people. Rather, they use techniques in order to gain their support other than through sheer force. Elsewhere, one of us has referred to this by labelling such politicians ‘cuckoo politicians’.⁷⁸

Even though a large-scale diagnosis cannot be provided within the frame of this contribution, Austrian politics are marked – at least to some extent – by populism. Especially the restriction of human rights as described in Section II is an important instance of populism. Generally speaking, the ÖVP-FPÖ Government coalition made integration of beneficiaries of international protection very difficult if not impossible. At the same time, social benefits were made dependent upon integration (language skills at a certain level). Portraying refugees generally as abusers of the system and unwilling to integrate and linking them broadly speaking to irregular migration and criminal behaviour while at the same time making access to the labour market and language courses difficult, is the work of populists. Refugees were portrayed as ‘the others’, constituting a security problem. Blurring the legal concepts of asylum and migration and ignoring international and EU legal obligations in particular in areas of asylum and human rights, disrespects legal guarantees. The ÖVP-FPÖ Government justified interferences in the human rights of asylum seekers with new measures and legislative acts as a ‘prevention of asylum abuse’. This is populist propaganda, especially because such claims were lacking any empirical evidence. Finally, civil society, the media, as well as human rights activists and to some extent even the prestigious Austrian Constitutional Court, were verbally attacked in particular by the FPÖ, which shows a clear disrespect for important pillars of institutional pluralism. The coalition partner ÖVP has not firmly opposed this conduct, which entails ‘complicity’ in populism.

The given examples also indicate a common link between the restriction of refugee rights and democracy which is also related to discursive and institutional pluralism. Human rights and democracy are mutually dependent. It is not possible to have rule of law guaranteed without democracy. Nor can we have democracy without the rule of law.⁷⁹ Precisely therein lies the conceptual relationship between the restriction of refugee rights and democracy. Conceiving of democracy without human rights makes little sense. The right to vote, bluntly speaking, is of little value, if basic human rights such as freedom of information and freedom of press are absent. This holds also true the other way round. The rule of law and basic human rights are not sustainable without democracy, as political restrictions of such rights might not face protest at the ballot box. Also, historically, democracy and human rights have co-evolved. Their coinciding is not a mere historical coincidence. If the democratic legal culture erodes, human rights thus will suffer too. Many dictatorships have and do still show that they disfavour individual rights. Also, the other way round it is hard to secure human rights if democratic control is missing.

This is particularly troublesome for refugee rights, because refugees usually lack democratic rights such as the right to vote (in the country of refuge). Hence, if governments limit the rights of refugees, refugees themselves cannot express their protest at the ballot box. They have to rely on ‘altruistic support’ from voters which are not directly concerned by the rights restriction. Precisely a lack of concern among voters for the restriction of refugee rights can be exploited by populist parties like the FPÖ. Additionally, this is unlikely to be counteracted by mainstream parties like the ÖVP since they have nothing to gain and much to lose if they would be seen as ‘altruistically’ refugee-friendly. This is what causes the (informal) elements of democracy to crumble and lead to – or fail to prevent – further restrictions of refugee rights. Limiting refugee rights, however, is still a restriction of human rights, and thus also a contribution to the deterioration of the balance between democracy and human rights. In such a climate, radical ideas by populist right-wing parties like those of the FPÖ are more likely to be picked up by other parties such as the ÖVP. In a climate where limitations of human rights are part of the political game, more moderate parties like the ÖVP also become more radical. This might even work if ‘mainstream’ political parties ‘only’ co-opt restrictive asylum policies to ‘cut off’ support for more radical populist right-wing parties like the FPÖ. This displays an indirect link between populism and restrictive asylum policies which is also connected to the question as to whether such populist elements also imply democratic decay.⁸⁰

11.3.2 Democratic Decay in Austria?

Democratic decay is ‘the incremental degradation of the structures and substance of liberal constitutional democracy’.⁸¹ Importantly such decay must not be understood in an isolated fashion, for if this would be the case, this might create the impression of a ‘connotation of a degradation which is slow and almost impersonal, occurring without a plan – a connotation certainly not giving justice to energy, enthusiasm and design.’⁸² Another caveat is that decay implies a temporal component. Similarly, as it is impossible to engage in conclusions on climate change by simply looking at the weather yesterday and today, or by saying that last year it was colder than this year, and thus, climate change is not happening, it is also misleading to say that democracy in Austria is rising as the current government constituted by the refurbished ÖVP and the Green Party is ‘more democratic’ than the ÖVP-FPÖ coalition. Starting from a specific point in time and a given quality of democracy, decay points at a negative evolution of democracy in relation to the starting point.

However, to what extent do the above-described restrictions of refugee rights represent a form of democratic decay in populist times? Instead of identifying a specific point in time as the heyday of Austrian democracy, the prior identification of elements of populism points to some, isolated, but nevertheless important cuts into the blueprint of liberal democracy which is generally present in Austria.⁸³

Hence, after having made transparent how populism is understood in this contribution and the analysis whether elements in Austria are present, it would be nevertheless implausible to conclude that democracy is on the rise in Austria. Whether we witness democratic decay in Austria also depends on the conceptual understanding of democracy.⁸⁴ This contribution cautiously floats the hypothesis that indeed some incidents surely are worrisome from the perspective of liberal democracy. The restriction of human rights of refugees is a cut into what is at the very core of liberal democracy because human rights and the rule of law as well as democracy are interconnected. Moreover, these examples constitute linkages between populism and democratic decay.

Against the measure of a well-functioning democracy, we can thus say that the restrictions of refugee rights are cuts into Austrian liberal democracy. This is not a negligible by-product or a passive development without agents. Rather, there is a connection between populism that causes democratic decay also by significantly restricting refugee rights. The responsible agents for these developments are populistic politicians. However, those responsible are not only populistic politicians, but also the people. Surveys show that twenty-two per cent in Austria held in 2019 that ‘Austria would be in need of a strong leader which must not rely on parliament or elections’⁸⁵ and in 2018 forty-three per cent generally wished for a ‘strong leader’.⁸⁶

11.4 Legal Resilience: The Possibilities and Limits of Constitutional Law to Keep in Check, Prevent But Also Remedy the Restriction of Refugee Rights, Populists and Democratic Decay

Finally, this contribution asks what Austrian (constitutional) law can do to prevent democratic decay and populism in general, as well as the restriction of refugee rights more specifically.⁸⁷ At first sight, Austrian (constitutional) law deeply influenced by Kelsenian positivism, seems to be rather toothless due to its strong neutrality regarding politics. Whatever content a specific law has, if the two-thirds-majority in parliament is ensured, even constitutional law can be amended or created.⁸⁸ This is potentially problematic as exemplified by the former Minister of the Interior, Mr. Kickl, who argued that it is the law which must bow to politics, and not the other way round.⁸⁹ However, at a second glance there are some tools provided by constitutional law which might offer some relief, and thereby strengthen the democratic compass.⁹⁰ An effective tool of the Austrian Constitution is that even constitutional law must be in line with the most important constitutional principles that are of the highest rank in the Austrian Constitution. The Austrian Constitutional Court guards these principles which include – among other principles – also a democratic principle, human rights and the rule of law and can declare constitutional laws unconstitutional if they violate these principles.⁹¹

Human rights are themselves another important element of legal resilience, which are also anchored in the Austrian Constitution. Apart from the State Basic Law on the protection of the rights of citizens that contains traditional civil liberties,⁹² it is in particular the European Convention on Human Rights (ECHR) that constitutes ‘the main, constitutionalised source of fundamental rights protection’.⁹³ Other rights in the Austrian Constitution are, for example, the right to equality in Article 7 Federal Constitutional Law (B-VG);⁹⁴ the rights in other international treaties adopted by Austria on a constitutional level (e.g., the International Convention on the Elimination of All Forms of Racial Discrimination)⁹⁵ or implemented through special constitutional acts (e.g., the Convention on the Rights of the Child),⁹⁶ and the constitutional rights in peace treaties.⁹⁷ During the past decade, the EU Charter of Fundamental Rights (CFR) has increasingly become important in the Austrian human rights system. In 2012, the Constitutional Court ruled that the rights in the CFR can be asserted before the Court as constitutionally guaranteed rights.⁹⁸ In particular, in the area of asylum the Charter plays an important role.⁹⁹ Given that asylum procedures do not fall within the scope of application of the Article 6 ECHR, provisions of the CFR such as Article 47, have been increasingly invoked and applied in the asylum procedure.

The Constitutional Court ‘reads the relevant provisions from the different instruments together, to provide a comprehensive protection’.¹⁰⁰ In addition, human rights and the rule of law also pertain to the above-mentioned core principles of the Austrian Constitution. The Constitutional Court might, thus, declare even a constitutional act that aims at diminishing or even abolishing specific human rights, unconstitutional. Only by a popular referendum and a so-called total revision of the Austrian Constitution, could human rights be abolished.¹⁰¹ This protection against considerably amending or abolishing human rights also by potential acts of parliament is an important instrument of legal resilience against further, admittedly large-scale, restrictions of refugee rights.

Arguably, also an Austrian withdrawal from the ECHR would only be possible after such a popular referendum (in addition to a two-thirds majority in parliament) due to the constitutional rank and the high importance of the ECHR in Austria. This is an important contributing factor of legal resilience of the Austrian Constitution. It protects against attacks by members of the former ÖVP-FPÖ Government like the former Minister of the Interior (FPÖ) who questioned the ECHR indirectly in line with the FPÖ election programme 2017 that contained possible withdrawal from the ECHR and its replacement by an Austrian Human Rights Convention (which should protect also the ‘home land rights of Austrians’).¹⁰² The same minister devalued human rights guarantees at national, EU and international level as ‘strange legal constructs’ which would be obstacles to do ‘what is necessary’.¹⁰³

The Constitutional Court exercises important functions that may serve to keep populist behaviour and democratic decay in check. Such functions include judicial review of laws and regulations, review of rulings by administrative tribunals and the verification of elections.¹⁰⁴ With regard to the cutting of social assistance for recognised refugees, for instance, the Constitutional Court declared these norms initiated by the ÖVP-FPÖ Government as unconstitutional.¹⁰⁵ Still, it seems to be only the tip of an iceberg which the Court can address according to its mandate.

In line with the above-mentioned importance of informal democratic legal culture and human rights support, civil society also plays an important role to keep elements of populism in check. This is visible in petitions such as the petition relating to access to the labour market of asylum seekers or in relation to the Global Compact on Migration. The role of the civil society is also visible in the statements submitted in the context of the parliamentary procedure or in protests against the renaming of first reception centres into return centres.¹⁰⁶ Still, there is no legal obligation to take civil society’s petitions, protests, etc. into account. The ÖVP-FPÖ Government also tried to reduce the influence of civil society in the asylum procedure by introducing the BBU-G. Hence, there is not one single strategy or tool of resilience. Rather, the network of formal and informal rules of the democratic legal culture and safeguards of human rights are needed in order to prevent democratic decay and populist propaganda.

11.5 Conclusion

The open attacks against human rights, the rule of law and also attacks on parts of civil society by members of the government, were the innovations brought with the 2017/2019 ÖVP-FPÖ Government.¹⁰⁷ The legacy of the ÖVP-FPÖ Government has a dark and long shadow eclipsing also the coalition government by the ÖVP and the Green Party which has been in office since January 2020.¹⁰⁸ During the first year of the ÖVP Green Party Government, in particular the refusal of the ÖVP to accept even a single child from the refugee camps on the Greek islands, not even after the catastrophe in Moria, underlines this legacy. ‘Security detention’ now features in the Government Programme, albeit the programme stresses that it must be in conformity with the Constitution, the ECHR and EU law.¹⁰⁹ The decision not to join the Global Compact on Migration and the abolition of the independent legal assistance of asylum seekers are maintained. Looking more broadly at the Government Programme, externalisation tendencies in the asylum policy and the protection of external borders prevail too.

While the FPÖ was a trendsetter in othering refugees and restricting their rights, it is hard to say whether elements of populism represented by the FPÖ have actually led to more restrictive refugee laws and policies, or whether the othering of refugees has contributed to the success of the FPÖ in the first place. Restrictions were in place even before the FPÖ rose to power. Yet, it is undisputed that the politics of the FPÖ, which were largely also adopted and continued by the ÖVP, brought further restrictions. At least in the Austrian case a clearcut, black or white answer to the question as to whether the restriction of refugee rights accelerates democratic decay or whether it is the other way round, cannot be provided. Both phenomena are more likely part of a symbiotic and constantly amplifying process. The more populists dominate politics, the more they will restrict refugee rights. Further restricting refugee rights might easily lead to more support for populists. The more populists have to say, the worse this is for democracy. A bad state of democracy, in turn, is a more fruitful ground for populism. Hence, populism, the restriction of refugee rights and democratic decay is a downward spiral that is not easily hindered. Yet, a strong legal culture and support for the constitution are vital. In Austria this support is ensured by the most fundamental principles of constitutional law that can only be derogated by a public referendum according to Article 44 (3) of the Austrian Constitution. This provides a strong arsenal for resilience. Further specific regulations, such as a strong commitment to human rights and a robust safeguarding of the democratic process are supportive too. This, however, is not given. The Austrian Constitutional Court, constitutional scholars and politicians as well as civil society must work to support liberal democracy and its values.

12 Right-Wing Populism, Crumbling Migrants’ Rights and Strategies of Resistance in Belgium

Ellen Desmet and Stijn Smet

12.1 Introduction

In constitutional terms, the current moment in world history is marked by democratic decay and constitutional erosion.¹ Within Europe, Poland and Hungary are the blueprints of ‘illiberal democracy’² and ‘constitutional backsliding’ in the hands of authoritarian populists.³ But given the transnational nature of the challenges that confront liberal democracy, no state can be presumed risk-free from the populist threat.⁴

In Belgium, as in other European countries,⁵ the (constructed) ‘migration crisis’ of 2015 has further boosted support for right-wing populist policies. As Cas Mudde has argued,

framing of a spike in asylum-seekers as a ‘refugee crisis,’ together with rhetoric linking this ‘crisis’ to terrorism, created a ‘perfect storm’ for the populist radical right. It brought their key issues – immigration, security, and Euroskepticism – to the top of the agenda, and it made voters more receptive to nativist, authoritarian, and populist appeals.⁶

The image of a perfect storm points towards complex entanglement of processes of democratic decay, (right-wing) populism and migration. In a range of countries, would-be authoritarian populists have seized upon a series of crises – in Europe, these include the economic crisis of 2008, the ‘migration crisis’ of 2015, the ‘terrorism crisis’ of 2015–2016 and most recently the COVID-19 crisis of 2020–2022 – to centralize state power in their own hands. They have done so by incrementally undermining core elements of constitutional democracy, in particular the separation of powers and the rule of law.⁷

Although there are clear linkages between migration, right-wing populism and democratic decay, a conceptual distinction should nevertheless be maintained between the undermining of migrants’ rights, on the one hand, and genuine democratic decay, on the other.⁸ The former occurs in virtually all European states, whereas the latter is – for now – limited to a few specific states (Poland and Hungary, in particular).⁹ Even when restrictions of migrants’ rights are widespread and far-reaching, this phenomenon does not amount, in and of itself, to a dismantling of the constitutional-democratic order. The need to retain a conceptual distinction between both processes – the undermining of migrants’ rights and democratic decay – is confirmed by the Belgian case.

In Section 12.2, we argue that the risk of genuine democratic decay in Belgium is minute, given that a series of constitutional safeguards prevents hostile take-over of government by authoritarian populists. These constitutional safeguards ensure, in particular, that the separation of powers, and the checks and balances it entails, continues to function adequately. In other words, a robust constitutional framework provides for constitutional resilience against the threat of authoritarian populism in Belgium.

At the same time, we posit that an indirect relationship does exist between the (hypothetical) threat of would-be authoritarian populists to constitutional democracy and the undermining of migrants’ rights. A genuine risk exists – and has materialized in Belgium – that ‘mainstream’ political parties co-opt nativist and populist policy proposals on migration in an effort to cut off support for radical-right populist parties. To put it crudely, migrants are being thrown under the bus in exchange for electoral support. Particularly during the 2014–2019 legislative term, severe disregard for and active targeting of migrants by the Belgian federal government has resulted in systematic weakening of their rights, a process we refer to as the crumbling of migrants’ rights.

In Section 12.3, we show that a series of legislative initiatives and policy decisions on migrants in the 2014–2019 period has contributed to the crumbling of migrants’ rights. We also, and particularly, set out to identify elements of legal resilience against this process. In doing so, we build on the conclusion of Section 12.2 that the separation of powers remains intact in Belgium. As a result, and unlike in countries like Poland and Hungary, civil society actors have been able – and often forced – to resort to the independent courts in a bid to safeguard migrants’ rights in the face of restrictive laws and regulations. Our main finding is that at a time when lobbying and policy suggestions no longer sufficed, judicial action became a prominent tool to cut back rights-restricting migration measures, but with mixed results. This leads us to the overall conclusion that, in Belgium, the combination of a vocal civil society and an independent judiciary provides a relevant site of resistance against the dismantling of migrants’ rights. From a migrants’ rights perspective, however, the judicial outcomes lead to a nuanced assessment.

12.2 Constitutional Resilience against (Would-Be) Authoritarian Populists

We begin by explaining why, in our estimation, the risk of genuine democratic decay in Belgium is minute, in light of a series of safeguards embedded in the constitutional framework, as it operates in practice.

Any hostile take-over of government, followed by incremental undermining of the rule of law and the separation of powers, as has occurred in Hungary and Poland, could arguably only come from the radical-right and nativist Vlaams Belang (Flemish Interest) party. Vlaams Belang combines the thin ideology (or political style)¹⁰ of populism with a nationalist (i.e. pro-Flemish), nativist (i.e. anti-migration) and radical-right (especially anti-Muslim) ideology.¹¹ In 2004, the party’s predecessor Vlaams Blok (Flemish Bloc) was found to have incited hatred and discrimination against migrants by blaming them for the ‘misery of the native population’ under the slogan ‘Our own people [volk] first’.¹² In the wake of the criminal trial, the party changed its name to Vlaams Belang and reached its electoral zenith, claiming twenty-four per cent of the vote in the 2004 regional elections.¹³

Although the party’s official discourse and programme have since ‘softened’,¹⁴ discourse analysis shows that it continues to ‘mobilize populism and (sub-state) nationalism’.¹⁵ Aside from advocating for increased use of direct democracy, as populist parties tend to do, Vlaams Belang continues to construe migrants and Muslims as dangerous ‘outsiders’ from which the ‘pure’ Flemish people must be protected; something the ‘politically correct elite’ is unwilling or unable to do.¹⁶ It is, in other words, evident that Vlaams Belang draws heavily on the right-wing populist playbook that has served Fidesz (in Hungary) and Law and Justice (in Poland) so well.

Until recently, this was not much cause for concern as Vlaams Belang was thought to have been (again) reduced to a marginal party after its 2004 electoral success (24%), with a large segment of its former electorate now supporting the right-wing nationalist Nieuw-Vlaamse Alliantie (N-VA – New Flemish Alliance). In the 2014 federal elections, for instance, Nieuw-Vlaamse Alliantie secured 32.5% of the vote whereas Vlaams Belang managed to convince just 6% of the electorate, barely above the electoral threshold of 5%. In the wake of the 2015 ‘migration crisis’, however, recent election cycles have been a powerful reminder that the Vlaams Belang’s populist discourse and radical-right policies continue to appeal to the electorate. During the 2019 national elections, Vlaams Belang rebounded from its dismal 2014 result to claim 18.5% of the vote (results in Flanders). This corroborates findings by Dennison and Geddes that anti-immigration parties have benefitted from an increase in salience of migration issues among voters in the wake of the ‘migration crisis’.¹⁷ Pre–COVID-19 polls even put Vlaams Belang at an all-time high of twenty-eight per cent of voting intentions, well ahead of all other parties, including the Flemish-nationalist Nieuw-Vlaamse Alliantie (21%).¹⁸ In light of these data, renewed attention for the (hypothetical) threat of Vlaams Belang to the Belgian constitutional order is warranted.

12.2.1 Robust Constitutional Framework

Given the electoral resurgence of Vlaams Belang, considered against the backdrop of global democratic decay, it is important (or at least prudent) to assess how resilient the Belgian constitutional framework is against capture by would-be authoritarian populists. If we take Hungary and Poland as the blueprints of rule of law backsliding, authoritarian populists would need to achieve two objectives to mount a credible threat to the Belgian constitutional order. First, they must be in government. Second, once in government they must be able to implement an ‘illiberal-democratic’ agenda.

For a combination of reasons, it is extremely unlikely – if not impossible – for would-be authoritarian populists to achieve both objectives. A series of ‘primary’ constitutional safeguards prevent hostile takeover of the Belgian constitutional order by a single political party. A further series of ‘secondary’ constitutional safeguards would prevent constitutional capture even if would-be authoritarian populists manage to enter a coalition government. In combining these primary and secondary safeguards, the Belgian constitutional framework mirrors Stephen Gardbaum’s ‘counter-playbook’ of constitutional resilience. Composed of constitutional design features that ensure adherence to an ‘anti-concentration principle’, the counter-playbook ensures that the separation of powers continues to operate in a robust manner.¹⁹

First, a series of constitutional safeguards shield the Belgian constitutional order from hostile takeover by a single political party. We call these safeguards ‘primary’, since they foreclose a precondition for the incremental dismantling of the constitutional order: authoritarian populists claiming a (super)majority of seats in Parliament.²⁰ The most important primary safeguards are entrenchment of an electoral system based on proportional representation (PR) and the federal structure of the Belgian State.

Since 1920, the Belgian Constitution provides that elections take place according to the PR system.²¹ Quasi-constitutional legislation provides the same for regional elections.²² Since 1993, Belgium is also formally ‘a federal State composed of Communities and Regions’.²³ For the purposes of this chapter, one of the most important consequences of the federalization process was the split (completed by the end of the 1970s) of the formerly unitary ‘traditional’ parties in separate Flemish and Francophone parties.²⁴ The Constitution moreover requires that the federal government is composed of at least two political parties: one Flemish, one Francophone (this is the bare constitutional minimum; in practice there are always more).²⁵ Furthermore, while the radical right has enjoyed electoral successes in recent years in Flanders, the same cannot be said of the counterpart of Vlaams Belang in Wallonia. The Front National, forced to rebrand itself as Démocratie Nationale in 2012 following a complaint by Marine LePen, has thus far not garnered the same level of support as its radical-right counterpart in Flanders.

The combined effect of these elements – several of which are constitutionally entrenched – is a fragmented multiparty system and the inevitability of coalition governments.²⁶ This fragmentation has produced democratic challenges,²⁷ but it also guarantees that any federal government is necessarily a coalition government. It is, in other words, impossible for a single political party to successfully take over government at the federal level.²⁸ One of the preconditions of constitutional capture in Poland and Hungary is thus precluded in Belgium. Although the relevant constitutional provisions were not designed with a potential risk of democratic erosion in mind, they effectively ensure a robust level of constitutional resistance against authoritarian populism.²⁹ At the regional level, some of these safeguards are not in effect, while the influence of the others is muted. As a result, it is possible – although it remains unlikely – for the radical-right to take over government in the Flemish region. The (ultimately failed) coalition talks between the right-wing nationalists of Nieuw-Vlaamse Alliantie and the radical-right populists of Vlaams Belang in the wake of the 2019 regional elections were a disturbing signal of potential threat of democratic erosion at the regional level.

Second, even if – hypothetically speaking – would-be authoritarian populists would circumnavigate the primary safeguards and manage to enter a coalition government,³⁰ a series of ‘secondary’ constitutional safeguards would still prevent them from implementing an ‘illiberal-democratic’ agenda. These secondary safeguards ensure robust protection of the separation of powers, thereby shielding the constitutional order from capture by (any) coalition government.

Most of these secondary safeguards originate in the deep distrust of the executive that informed the drafting of the Belgian Constitution in 1831. To protect the newly founded constitutional democracy, a series of checks on the executive branch of government and a Bill of Rights were included in the liberal Constitution to shield citizens against ‘overly autocratic interferences’ by government.³¹ The constitutional framework has by and large remained the same,³² at least in terms of rights provisions and checks and balances.³³ Yet, the contemporary political reality of ‘particracy’³⁴ – that is, a form of government in which political parties are the de facto seat of power – effectively enables the executive to dominate the legislature, contrary to what the constitutional framework envisages.³⁵

This makes it all the more important to assess secondary constitutional safeguards that can keep ‘muscular’ coalition governments in check.³⁶ Given what we know about the blueprint of constitutional capture, the independence of the judiciary is particularly important. Here, the experience in Poland and Hungary shows that constitutional courts are among the first targets of would-be authoritarian populists.³⁷ Once the principal guardian of the Constitution has been captured, constitutional review effectively ceases to exist. As the Polish experience shows, authoritarian populists can subsequently push blatantly unconstitutional legislation through Parliament without fear of repercussions. It is, therefore, pivotal to assess how resistant constitutional courts are against capture.

In Belgium, quasi-constitutional legislation that can only be amended by supermajority ensures that the judges of the Constitutional Court are appointed for life,³⁸ that their nomination by Parliament requires a supermajority (two-thirds of the vote),³⁹ and that the President of the Court is elected by the judges themselves.⁴⁰ Equally significantly, the composition of the Constitutional Court is intentionally politicized, in the double sense that half of the Court’s twelve judges are former politicians and – perhaps more curiously – that the ideological balance among the twelve judges is intended to reflect the electoral power relations between all ‘mainstream’ political parties. Whereas the former requirement is entrenched in quasi-constitutional legislation,⁴¹ the latter was deliberately left out of the legal framework.⁴² In political practice, however, it is generally adhered to in the nomination process (that is, nominees are selected from a pool of candidates with the ‘correct political colour’ for the vacant seat).⁴³ Moreover, radical-right parties such as Vlaams Belang are currently excluded from this informal power sharing mechanism by political agreement, as a result of which they are not able to nominate judges to the Constitutional Court. Pursuing, by design, an ideological balance on the Constitutional Court may raise fundamental questions in other respects, but it does ensure that no single political party (or political family) can dominate the Court. In this sense, the politicized nature of the Court’s composition is an additional element in the shield that protects it from capture by a (hypothetical) malignant government.

Although the Belgian judiciary is robustly independent in most respects, the Hungarian and Polish experiences also reveal that the entire Belgian judiciary, from the Constitutional Court to the lowest courts, is in one crucial respect vulnerable to capture. The retirement age of judges is not constitutionally entrenched in Belgium. Instead, just as in Hungary and Poland, it is determined by statute and higher than the general retirement age of 65 (70 for judges on the Constitutional Court, Council of State and Supreme Court of Cassation and 67 for judges on all other courts).⁴⁴ The strategy of Fidesz and PiS to capture the judiciary by lowering the statutory pension age for judges could, hypothetically speaking, therefore be transplanted to Belgium. At the same time, however, replacing the forcibly retired judges with government-friendly ‘cronies’ would still be a less-than-straightforward exercise, given that judicial appointments are made by the constitutionally entrenched High Council of the Judiciary.

Aside from the rules on retirement age for judges, some other potential vulnerabilities emerge when the Belgian constitutional framework is assessed against Gardbaum’s counter-playbook. The three most significant potential vulnerabilities can only be touched upon here.

First, political parties are not regulated in the Constitution. Although political parties are the most powerful actors in the Belgian ‘particracy’, effectively enabling the executive to dominate the legislature, they are not even mentioned in the Constitution. As Kim Lane Scheppele explains, ‘[w]ithout constitutionalized processes in which parties can be assessed, the building blocks of a democratic state can become subject to internal corruption and eventually to a potentially anti-democratic turn’.⁴⁵

Second, although the Senate persists as an institution, it has been stripped of most of its law-making powers.⁴⁶ Given the broader context of the primary and secondary constitutional safeguards discussed above, the lack of bicameralism is unlikely to generate a direct threat to the constitutional order. But from the perspective of constitutional resilience (and of federalism theory),⁴⁷ it remains a potential vulnerability, given the experience in Hungary and Poland.⁴⁸

Third, Belgium lacks a number of fourth and fifth branch institutions that, especially when constitutionally entrenched, could provide some resistance against democratic erosion.⁴⁹ Until 2019, Belgium did not have an overarching human rights institution, an omission for which it was repeatedly criticized by UN and Council of Europe monitoring bodies. An independent federal human rights institution has since been installed, which, however, only has advisory and reporting powers.⁵⁰ Even more significant, from the perspective of preventing democratic decay, is the absence of an independent electoral commission. Instead, a combination of constitutional, quasi-constitutional and statutory provisions give the respective parliaments the exclusive authority to review the validity of their own elections.⁵¹ This generates obvious problems for the independent monitoring of elections, which has led the Grand Chamber of the European Court of Human Rights to rule that the Belgian framework violates article 3 of Protocol 1 to the European Convention on Human Rights (the right to free elections).⁵²

12.2.2 Interim Conclusion

In the first part of this chapter, we have in essence taken a particular form of democratic decay, namely ‘rule of law backsliding’,⁵³ as our frame of analysis. Evaluated through that lens, a series of primary and secondary constitutional safeguards make the Belgian constitutional order more resilient to capture than the constitutional order of Hungary and Poland. A Hungary-type scenario in which (would-be) authoritarian populists incrementally dismantle the liberal-constitutional order by changing the ‘rules of the game’ appears impossible in Belgium.⁵⁴ Similarly, a Poland-type scenario in which (would-be) authoritarian populists use statutory means to achieve the same illiberal ends is unlikely to unfold in Belgium.⁵⁵ Yet, to conclude that all is well with Belgian constitutional democracy would be (much) too swift. The Polish and Hungarian experiences have taught us to look beyond the obvious scenarios to carefully scrutinize other warning signs of democratic decay.

Throughout the first section of our chapter, we have focused on the threat posed by would-be authoritarian populists. In one respect, this initial focus is justified, given the resurgence of the nativist and radical-right Vlaams Belang in the polls. In another respect, however, an exclusive focus on this single political party would dramatically underestimate the potential impact of right-wing populism in Belgium. Experience from around the world indicates that (former) ‘mainstream’ parties may pose a much bigger threat to liberal democracy than radical-right parties do. It is, in that respect, crucial to evaluate the impact of co-optation, or ‘poaching’,⁵⁶ of populist policies and discourse by mainstream political parties.

In an important contribution to the debate on constitutional resilience, Rosalind Dixon and Anika Gauja have approached such co-optation in a cautiously optimistic manner.⁵⁷ After considering the drawbacks of what they call ‘policy responsiveness’ by mainstream parties, Dixon and Gauja conclude that ‘a quasi-populist turn in mainstream democratic politics is a price worth paying for preserving the minimum core of a democratic system, in the face of a credible threat of illiberal populist takeover’.⁵⁸

It strikes us that the operative word, here, is ‘credible’. Above, we have argued that a series of constitutional safeguards make a hostile takeover of the Belgian constitutional order by would-be authoritarian populists unlikely. To the extent that this renders the threat not credible, the ‘quasi-populist turn’ in mainstream politics becomes highly suspect (and in our view indefensible). Rather than turning a blind eye to the impact of ‘policy responsiveness’, we should take it seriously. We do so in the remainder of this chapter by analyzing the impact on migrants’ rights, in particular.

12.3 Crumbling Migrants’ Rights and Strategies of Resistance

In Belgium, mainstream political parties are not attempting to capture the courts, control the media or shut down universities. There is, in short, no genuine risk of rule of law backsliding. Nevertheless, throughout this section we reveal a pattern of restrictive migration laws and policies that has caused migrants’ rights to crumble in Belgium. We simultaneously show that, in terms of resistance to this development, civil society organizations and courts emerge as crucial actors to secure a minimum level of human rights compliance and uphold the rule of law. However, even though the Constitutional Court and the Council of State have put a brake on some of the more restrictive migration measures, they did not adopt a maximalist approach to the protection of migrants’ rights.

Migration has been a sensitive political issue in Belgium in recent years. This is evident – to pick just one prominent example – from how the previous federal government fell over public endorsement of the UN Global Compact for Safe, Orderly and Regular Migration at the Intergovernmental Conference in Marrakesh at the end of 2018. A few months earlier, then Prime Minister Charles Michel had expressed Belgium’s support for the Compact at the UN General Assembly. This endorsement went by almost entirely unnoticed. In the lead-up to the more public Intergovernmental Conference in Marrakesh, however, the Global Compact suddenly became a subject of heated debate. The right-wing nationalist Nieuw-Vlaamse Alliantie, a key member of the coalition government that had previously not objected to endorsement of the Compact, began to raise critical concerns against it.⁵⁹ The ethno-nationalist and populist nature of the debate is illustrated by the fact that – while a parliamentary hearing with expert witnesses on the Global Compact was ongoing – the Nieuw-Vlaamse Alliantie launched a malicious social media campaign against the Compact. Using style, images and language eerily similar to that of the radical right Vlaams Belang, the party firmly rejected what it now called the ‘Marrakesh Pact’.⁶⁰ The radical shift in discourse was arguably due to the Nieuw-Vlaamse Alliantie belatedly realising that a policy decision on migration it had endorsed as coalition partner (i.e. endorsing the Global Compact) could well lead to a substantial loss of votes to Vlaams Belang. Ultimately, the Nieuw-Vlaamse Alliantie left the federal government over a non-binding international instrument – a unique event in Belgian constitutional history (where coalition partners rarely leave coalition governments prematurely, and definitely not over a non-binding text).

We focus our analysis in this section on the 2014–2019 period because this legislative term has come to an end and thus allows for an overall analysis. From 2014 until 2018, Theo Francken of the Flemish-nationalist Nieuw-Vlaamse Alliantie was Secretary of State for Asylum and Migration. When his party left the government at the end of 2018 over the Global Compact, the liberal minister Maggie De Block became responsible again for asylum and migration – as had been the case in the 2009–2014 legislative term.

In this five-year period, a landslide of legislative and regulatory changes have aimed to ‘optimize’ the asylum procedure, fight against sham relations, increase (child) immigration detention, facilitate removal for reasons of public order and national security, and emphasize migrants’ individual responsibility to integrate.⁶¹ As a result of all these measures, migrants’ substantive and procedural rights have been put under pressure. This is not to say that migrants’ rights had not already been weakened prior to 2014, for instance in relation to family reunification.

The rights-restrictive measures adopted between 2014 and 2019 have met resistance. Civil society organizations have been vocal in denouncing the lack of nuance, accuracy and inclusivity in the public debate. But their proposals, geared towards human rights compliant policy changes, were usually not taken into account, as the space for dialogue with civil society virtually disappeared (12.3.1). In response, civil society organizations have begun to challenge the legality of (some of) these measures by filing complaints at the Constitutional Court (12.3.2) and the Council of State (12.3.3).⁶² In some instances, but certainly not all, these courts have taken up their role of watchdog of human rights by annulling, suspending or nuancing the most far-reaching provisions. Finally, some cracks in the separations of powers could be observed, exemplified by the disregard for (quasi)judicial decisions – a worrying tendency from a rule of law perspective (12.3.4). In the conclusion we emphasize the critical role of civil society and courts in challenging rights-restrictive migration policies as the main takeaway from the Belgian case.

12.3.1 Deteriorating Quality of the Law-Making Process

The 2014–2019 legislative period was characterized by a deteriorating quality of the law-making process, through the undermining of the advisory function of the Council of State and the virtual disappearance of dialogue with civil society.

An emblematic case was the huge ‘asylum bill’ submitted by the federal government in June 2017, amending many provisions of the Aliens Act.⁶³ Even though the bill contained some measures to protect persons with special procedural needs, its chief objectives were to reform the asylum procedure in order to create ‘clear, efficient, quick and high-quality procedures with a focus on the fight against abuse’, on the one hand, and to strengthen the effectiveness of return policy, on the other.⁶⁴ Then Secretary of State Francken used the ‘urgency procedure’ to obtain the advisory opinion of the Legislation Section of the Council of State on the preliminary draft. This reduces the period within which the Council has to provide advice to thirty days.⁶⁵ With regard to the impact of the bill on the right to an effective remedy, as guaranteed by article 13 of the European Convention on Human Rights, the Council of State strikingly noted:

[C]onsidering the period within which the Legislation Section must provide advice and considering the fact that it is a particularly complex matter, it is not possible to check at this stage whether the combination of the different modifications brought by the preliminary draft will not have the effect that, in certain cases, the right to an effective remedy is disproportionately affected.⁶⁶

Given that the Council of State was not granted the time to assess the cumulative impact of the proposed changes, it put the ball back into the Secretary of State’s court by advising him

to supplement the explanatory memorandum in order to identify more clearly the new elements that could negatively impact the right to an effective remedy and to explain why this impact is not so disproportionate that the effectiveness of the remedy is endangered.⁶⁷

Both civil society organizations and UNHCR refused to accept a last-minute invitation to discuss the bill in the Committee on the Interior of the Chamber of Representatives, due to a lack of sufficient preparation time.⁶⁸ Notwithstanding critical opinions by independent human rights actors such as UNHCR, the Federal Migration Centre Myria and the Data Protection Authority, the ‘Asylum Act’ was adopted by the plenary assembly in November 2017 without substantive modifications.

12.3.2 Challenging Laws before the Constitutional Court

The Constitutional Court is competent to review legislative acts, that is acts adopted by the federal parliament or by the parliaments of the communities and regions. The Court assesses their compliance with the fundamental rights enshrined in the Constitution and with the division of competences between the federal state, the communities and the regions.⁶⁹ Actions for annulment must generally be brought within six months of the publication of the challenged act.⁷⁰ This section analyzes the most relevant actions for annulment of migration legislation provisions adopted in the 2014–2019 period, upon which the Constitutional Court has delivered judgment. While the Court has (partially) annulled some provisions, we conclude that a real protection of migrants’ rights would have implied a more stringent review.

Some actions for annulment were pending at the moment of writing, such as an action brought against the new Belgian Maritime Code of 2019 concerning the fundamental rights of stowaways.⁷¹ Most recently, the Constitutional Court annulled the detention period of up to eight months for Union citizens and their family members who are ordered to leave the territory for reasons of public order or national security (see generally 12.3.2.2).⁷²

12.3.2.1 International Protection

The Asylum Act, discussed above as to its deficient drafting process, included various measures which, in the view of civil society and human rights actors, undermined fundamental rights. Even though the Constitutional Court declared some provisions void and provided interpretative clarifications for others, it upheld the legality of the most controversial ones.⁷³

On the one hand, the Court held that the preservation of original documents establishing the identity or nationality of the applicant during the whole course of the procedure (including on appeal) constituted a violation of the applicant’s right to respect for private life.⁷⁴ Moreover, the possibility for the Commissioner General for Refugees and Stateless Persons to keep certain elements related to sources of information confidential beyond what is allowed by the EU Asylum Procedures Directive, did not respect the rights of defence of the applicant.⁷⁵ In addition, the Court (partially) annulled provisions regarding the possibility to communicate in certain procedures the notes of the asylum interview together with the decision rather than before,⁷⁶ the application of the accelerated procedure,⁷⁷ and the starting point to calculate the period of four weeks during which asylum seekers can be detained at the border.⁷⁸ The annulment of these provisions was also justified because they failed to respect the minimum standards established in the EU Asylum Procedures Directive.

On the other hand, many provisions that had been heavily criticized by independent human rights actors and NGOs prior to the adoption of the Asylum Act, were left untouched. For instance, the Constitutional Court did not agree with the applicants that the definition of the ‘risk of absconding’ was too vague and could lead to arbitrary detention.⁷⁹ Moreover, the Court found that the rules for detention of asylum seekers at the border are a ‘lex specialis’ compared to the general rules on detention in the EU Reception Conditions Directive. As a consequence, they do not need to provide the same guarantees when this is not considered feasible in light of the objective of ‘effective border control’.⁸⁰ In this way, the Court sanctions the current practice of systematic detention of asylum seekers at the border.⁸¹

Another illustration concerns the right to respect for private life. When the Commissioner General for Refugees and Stateless Persons has good reasons to assume that an applicant is holding back information, he can request access to their digital devices (e.g., cell phone, laptop). A refusal of the applicant is interpreted as a refusal to cooperate, which may negatively impact the decision regarding international protection. During the drafting process, the Secretary of State had responded to the critical opinions of the Data Protection Authority and UNHCR by announcing a royal decree with additional guarantees – which is still not in place.⁸² The Constitutional Court considered that the interference with the right to respect for private life did not cause any disproportional consequences, in light of the legitimate aim of assessing the application for international protection.⁸³

Finally, with the aims of ‘simplification and harmonization’, the time period to contest a decision denying international protection – normally thirty days – was reduced. In some cases, the already shorter appeal period of fifteen days was further reduced to ten days, for instance for an asylum seeker in detention. In other cases, the appeal period was shortened from ten to only five days, for instance for an asylum seeker in detention who wants to appeal an inadmissibility decision of a subsequent application. The Court found that these periods of ten and five days are sufficient for the appeal to be considered an effective remedy.⁸⁴

In this respect, it is to be noted that the Constitutional Court did not assess the combined effect of the modifications of the asylum legislation on the right to an effective remedy, as the Legislation Section of the Council of State had suggested to the Secretary of State (see 12.3.1). The Court only evaluated the legality of each amendment in itself.

12.3.2.2 Removal for Reasons of Public Order or National Security

In 2017, various provisions of the Aliens Act were revised ‘in order to strengthen public order and national security’, in the wake of the Paris and Brussels terrorist attacks.⁸⁵ Legally residing third-country nationals⁸⁶ can now receive an order to leave the territory ‘for reasons of public order or national security’, whereas before it was required that they had ‘damaged public order or national security’.⁸⁷ This vague language, together with the abolishment of the prior advice of the Commission of Advice for Foreigners, gives the Immigration Office a wide power in decisions to end residence of third-country nationals for reasons of public order or national security.

Moreover, the exception that persons born in Belgium or who had moved to Belgium before the age of twelve could not be deported for reasons of public order or national security, was removed.⁸⁸ This implies that persons can now be sent back to a country of which they have the nationality but where they never or only during their childhood lived. The exception was removed ‘because of the fight against terrorism and radicalisation’.⁸⁹ Finally, the automatic suspensive effect of appeals against decisions taken for reasons of public order or national security was also removed.⁹⁰

These measures were unsuccessfully contested before the Constitutional Court.⁹¹ The Court did provide some interpretative clarifications, which ‘took off the sharp edge’.⁹² For instance, referring to the case law of the European Court of Human Rights requiring a ‘very weighty reason’ to deport a settled migrant,⁹³ the Court held that the parliamentary works indicate that the provision allowing to deport persons born in Belgium or who arrived here before the age of twelve, ‘mainly had the situation in mind of young foreigners who have committed very serious crimes that are linked with activities of terrorist groups or who pose an immediate danger for national security.’⁹⁴ In this way, the potentially broad application of the provision was limited. Nevertheless, the Court could have taken a more rights-protective stance, for instance regarding the impossibility to contest an entry ban when still on the Belgian territory.⁹⁵ Instead, the Court endorsed the broad interpretation and application powers granted to the administrative authorities related to removals for reasons of public order or national security.⁹⁶

12.3.2.3 Integration as a Residence Condition

In 2016, integration was inserted as a residence condition, in that the Immigration Office can put an end to certain residence rights when the person concerned has not made ‘a reasonable effort to integrate’.⁹⁷ The Aliens Act mentions the following criteria to assess a person’s efforts to integrate: integration courses, work, studies, vocational training, language knowledge, active participation in social life, and criminal history. The last criterion of criminal history has been annulled by the Constitutional Court as being too broad and not proportionate to the goal of integration and participation.⁹⁸ The Court also held that a lack of (sufficient) proof of efforts to integrate cannot suffice to not prolong or revoke a residence right, but that there must be other reasons as well (e.g. not living together anymore in cases of family reunification).⁹⁹

12.3.2.4 The Fight against ‘Manifestly Unlawful Appeals’

In 2017, the procedure which aims to fight manifestly unlawful appeals before the Council for Alien Law Litigation was simplified, in that the Council can now immediately impose a fine in the hearing in which it handles the appeal, instead of in a subsequent hearing.¹⁰⁰ An action for annulment was dismissed by the Constitutional Court.¹⁰¹ The Court did provide two interpretative clarifications. First, the Council for Alien Law Litigation must specify in its notification the particular reasons inducing it to consider to rule on the manifestly unlawful character of the appeal – instead of the current general statement included in the notification.¹⁰² Second, the impact of the appeal on the defendant cannot be taken into account when determining the amount of the fine, as the fine only aims to fight the improper use of judicial proceedings – and in this sense differs from a compensation for damages caused by reckless litigation.¹⁰³

12.3.2.5 Sham Acknowledgements

Family law has been instrumentalized in order to achieve migration policy objectives. Belgian public authorities have increasingly invested in the fight against ‘sham’ relations: first sham marriages, then sham legal cohabitations, and now also sham paternity acknowledgements. In 2017, the latter were legally defined as acknowledging a child with the apparent and sole intention of obtaining an advantage related to residence rights (for oneself, the child or the person who needs to consent to the acknowledgement).¹⁰⁴ The acknowledgement will thus not be registered when fraudulent intention is presumed, even when there is a biological link between the father and the child.¹⁰⁵

Before the 2017 legislative change, the public prosecutor could only demand the cancellation of an acknowledgement afterwards. Now, the civil status registrar may proactively suspend the procedure to request advice from the public prosecutor or even refuse to draw up a paternity acknowledgement because of (suspicions of) fraud.¹⁰⁶ Such a refusal has far-reaching consequences, in that the child will not have a legal father. According to Verhellen, this provision was inserted without the existence of ‘transparent figures and scientific studies that adequately map the phenomenon of sham acknowledgement’.¹⁰⁷

In its advisory opinion, the Legislation Section of the Council of State had been very critical of the bill. In its view, the lack of an obligation for the civil status registrar to consider the best interests of the child when refusing an acknowledgement constituted a violation of the Constitution and of the Convention on the Rights of the Child.¹⁰⁸ Moreover, the possibility to refuse an acknowledgment in case of a biological link, would violate the best interests of the child and their right to respect for private and family life.¹⁰⁹ The legislator did not take this criticism into account. Neither did the Constitutional Court.

In a judgment of 2020, the Constitutional Court overall upheld the new legislation on fraudulent paternity acknowledgement; it only found the lack of appeal possibilities against the civil status registrar’s refusal to draw up an acknowledgement unconstitutional.¹¹⁰ This issue has meanwhile been remedied by the legislator.¹¹¹ Disturbingly, the Court thus did not find it problematic that, in cases of fraud, the civil status registrar is not required to consider the best interests of the child.¹¹² Finally, the Court did not find any discrimination between Belgian citizen children and children from parents regularly residing in Belgium, on the one hand, and children with at least one irregular parent, on the other. Both categories are not comparable, as no risk of circumventing migration legislation exists in the former case.¹¹³

12.3.3 Challenging Regulations before the Council of State

The Belgian Council of State is composed of two sections with diverging powers. One section sits as the highest administrative court with the power to review and annul administrative decisions made and decrees issued by the executive branch of government (it also acts as a court of cassation within the administrative courts system).¹¹⁴ A different section, the Legislation Section, issues non-binding advisory opinions to the legislative branch of government on (most) bills.¹¹⁵ The first section and its powers of judicial review are most pertinent for the purposes of this chapter. We will thus focus on its case law.

12.3.3.1 Administrative Fees

As from 2 March 2015, the admissibility of certain applications for residence permits was made conditional upon the payment of a contribution for compensating the administrative costs related to the processing of the application.¹¹⁶ On 1 March 2017, the amounts were increased to 60, 200 or 350 euro, depending on the type of application. The Council of State annulled the royal decrees putting in place these fees, because the Belgian State had not demonstrated that their amount was reasonably proportional to the cost of the service.¹¹⁷ This annulment did not have the expected effect though (see 12.3.4).

12.3.3.2 Access to International Protection and Reception Conditions

In order to cope with the (constructed) reception ‘crisis’, a quota had been introduced. As from 22 November 2018, the number of applications for international protection that could be made at the Immigration Office was limited to 50 per day. This decision was not taken via a law, a royal or ministerial decree, or a circular letter. It was first announced in a press article, and confirmed the day after on Secretary of State Francken’s Facebook and Twitter accounts.¹¹⁸ A coalition of NGOs obtained the suspension of the measure as a matter of extreme urgency: the Council of State held that the measure prima facie made effective access to the international protection procedure ‘excessively difficult’.¹¹⁹ By that time, the then new liberal Minister of Asylum and Migration, Maggie De Block, had already ‘decided not to apply any quota’.¹²⁰

Nevertheless, in early 2020, Minister De Block also took a contested decision to deal with the increased pressure on the reception system. Two groups of asylum seekers, who were depicted as ‘abusing’ the system, were excluded from material reception conditions: persons in relation to whom the period for a Dublin transfer had passed and persons with an international protection status in another EU Member State. This exclusion is contrary to both the Belgian Reception Act and the EU Reception Conditions Directive.¹²¹ Again, no regulatory measure underpinned the exclusion; rather only instructions from the Federal Agency for the Reception of Asylum Seekers (Fedasil). A coalition of NGOs requested the Council of State to suspend and annul the instructions. After the auditor of the Council of State recommended their annulment, the Federal Agency for the Reception of Asylum Seekers repealed the instructions, and the case was closed before the Council of State.¹²² Nonetheless, later instructions of the Agency regarding the accompaniment of applicants in the Dublin procedure have been criticized for partially reinstating the revoked instructions.¹²³

12.3.3.3 Child Immigration Detention

The Belgian Aliens Act allows for the possibility of child immigration detention. In 2013, the Constitutional Court confirmed the legality of this provision, under the condition that detention conditions are adapted for children – an assessment which accrues to the Council of State.¹²⁴ Even though the Constitutional Court’s position is in line with that of the European Court of Human Rights,¹²⁵ most other human rights actors, including the UN Committee on the Rights of the Child, hold that the detention of children for immigration reasons always constitutes a violation of their rights.¹²⁶

Notwithstanding this legal possibility, Belgium had stopped detaining children in closed centres since 2009, in light of various condemnations by the European Court of Human Rights regarding the unacceptable conditions in which children had been detained.¹²⁷ Instead, ‘return houses’ for families with children were established, which received international praise.¹²⁸

Yet, in August 2018, the government started to detain again families with children, dissatisfied with the rate of absconding from these return houses but without having carried out an in-depth evaluation. To that end, it constructed ‘family units’ in a closed centre near Brussels Airport – which were allegedly more adapted to the needs of children and would thus respond to the criticism of the European Court of Human Rights. The detention regime in these family units was laid out in a new royal decree, which was challenged before the Council of State.¹²⁹

In April 2019, the Council of State suspended a number of provisions of this royal decree, because children could be detained up to one month without excluding family units in places where children would be exposed to ‘particularly significant noise pollution’.¹³⁰ Given that the only existing family units were located next to Brussels Airport, this judgement had as a consequence that families with children were no longer detained.

However, the hopes created among civil society actors by this judgment of suspension were reduced in October 2020. In its first judgment on the merits, the Council found some complaints inadmissible, annulled some provisions of the royal decree, and reopened the debates as to the remainder of the complaints.

The complaints regarding the absence of provisions excluding the most vulnerable children (e.g. with disabilities or of very young age) from detention, the lack of specific obligatory training for the personnel, and the lack of prohibition to wear a uniform within the family units, were declared inadmissible. The Council of State found the royal decree illegal insofar as families may be restricted to two hours per day of access to outdoor space to guarantee order and security, personnel has unconditional access to the family unit between 6 a.m. and 10 p.m., and adolescents of minimum sixteen years old may be put in isolation for twenty-four hours when they present a danger to security.¹³¹

Even though these annulments limit some prerogatives of the personnel, the Council of State has not ensured an adequate protection of the human rights of families with children who would be detained.¹³² In particular, the judgement has been criticized for its formalistic approach: the Council of State held that it could only check the positive measures included in the royal decree to ensure that the detention conditions were adapted to children, but that it could not assess measures that were lacking in the decree. The Council held that it was up to the other courts to assess the implementation of the royal decree. This implies that persons first have to detained – and their rights potentially violated – before they can challenge this in court. In conclusion, the judgment displays a ‘diminished and fragmentary’ protection of children’s rights.¹³³

The policy note of the current Secretary of State Sammy Mahdi of the party Christian Democratic and Flemish (CD&V) states: ‘minors cannot be held in closed centers’.¹³⁴ Nevertheless, the case before the Council of State, in which the Belgian government defends the position that the detention regime in the family units is appropriate to detain children, was continued. In its final judgment, the Council of State declared the remainder of the complaints inadmissible. These related, among others, to the lack of a prohibition in the royal decree to establish family units in places where children would be exposed to air and noise pollution (diverging from its earlier suspension on this ground), and to the vagueness of the provisions, which could lead to an arbitrary implementation.¹³⁵

12.3.4 Disregard of (Quasi-)Judicial Authority: Small Cracks in the Separation of Powers?

A basic characteristic of a solid rule of law is that the executive power respects the decisions of the judiciary power. When the executive power does not agree with certain judgments, it should amend the laws and regulations that the judges applied. In the 2014–2019 legislative period, some instances occurred where judicial authority in relation to migrants’ rights was questioned and/or ignored by the executive power. Two examples relate to topics discussed above, namely administrative fees and child immigration detention. A third illustration concerns humanitarian visas.

First, even though the Council of State held that the Belgian government had not demonstrated the proportionality of the amount of the administrative fees to the cost of the service, the Immigration Office, strikingly, continues to charge administrative fees for certain residence applications. It does so based upon a technical-legal argumentation that certain other royal decrees regulating these fees had not been annulled by the Council of State. However, these decrees are based on the same argumentation which has been declared invalid by the highest administrative court of the country. Even the Flemish Agency for Integration and Civic Integration – a government agency – argues that the continued charging of these fees is illegal.¹³⁶

Second, in September 2018, the UN Committee on the Rights of the Child ordered, as a provisional measure, the release of a Serbian family from the closed centre. The Immigration Office refused to comply with the measure, stating that ‘the UN Committee does not have competence on this matter in Belgium.’¹³⁷ Even though the Committee on the Rights of the Child is a ‘quasi-judicial’ authority, this is problematic because Belgium has ratified the third Optional Protocol to the Convention on the Rights of the Child on a communications procedure. Consequently, as the Committee noted in one of its views, ‘by becoming a party to the Optional Protocol, [Belgium] has recognized the competence of the Committee to determine whether there has been a violation of the Convention.’¹³⁸

A final illustration of the disregard of judicial authority concerns a humanitarian visa case. In 2016, a Syrian family applied for a short-stay humanitarian visa at the Belgian consulate in Lebanon on the basis of the EU Visa Code.¹³⁹ In their application, they explicitly mentioned their intention to apply for international protection upon arrival in Belgium. The Immigration Office rejected the application. In appeal, the Council for Alien Law Litigation suspended the decision in an emergency procedure. The Council held that the Immigration Office had breached its duty to state reasons and ordered the Immigration Office to take a new decision within forty-eight hours, as a provisional measure.¹⁴⁰ The second decision was, however, basically identical to the first one, so the scenario repeated itself.¹⁴¹ When also the third decision of the Immigration Office remained the same, the Council itself ordered the issuance of a humanitarian visa.¹⁴²

Even though this judgement was immediately enforceable, the Immigration Office refused to deliver the visa. The applicants therefore aimed to enforce the judgment via the ordinary judiciary. The Court of Appeal confirmed the first instance decision of imposing a penalty payment of 4000 euro per day of delay in issuing a visa for the four family members.¹⁴³ Yet, the then Secretary of State Francken persevered in resisting to comply with the Council’s judgement – hereby challenging the fundamentals of the rule of law. On the contrary, his party, the Nieuw-Vlaamse Alliantie, launched a social media campaign against the judges of the Council, who were depicted as ‘detached from reality’. The fact that the Council’s judgement was a reaction to the failure of the Immigration Office to properly state reasons, disappeared from the public debate. Both the attitude of the Secretary of State and the social media campaign were criticized by other political parties.¹⁴⁴ From a rule of law perspective, it is highly problematic that a Secretary of State refused to comply with an immediately enforceable judgment. As the Court of Justice of the European Union recently confirmed, ‘the right to an effective remedy would be illusory if a Member State’s legal system were to allow a final, binding judicial decision to remain inoperative to the detriment of one party.’¹⁴⁵

12.4 Conclusion

Our analysis in this chapter shows that the Belgian constitutional framework provides relatively robust protection against democratic decay. A series of primary and secondary constitutional safeguards renders hostile take-over of government by would-be authoritarian populists extremely unlikely (if not impossible). Rule of law backsliding of the variety witnessed in Poland and Hungary thus appears inconceivable in Belgium. Crucially, however, most of the constitutional safeguards that prevent a hypothetical slide towards authoritarianism only provide weak constraints, at best, against the very real and systematic undermining of migrants’ rights. A PR electoral system, for instance, provides no bulwark against governing parties that agree to undermine migrants’ rights. This situation is aggravated by the fact that persons without Belgian citizenship have no voting rights in federal and regional elections, which gives politicians less of an incentive to duly consider their fundamental rights.

In another sense, therefore, Belgium is just as vulnerable as other European states to co-optation of restrictive migration proposals by mainstream parties. As we have shown throughout this chapter, the dangers of co-optation in Belgium are real. Belgian migration policy in the period 2014–2019, formulated and implemented under a centre-right coalition, has been characterized by multiple efforts to weaken the legal and actual position of migrants in general, and asylum seekers, family migrants and irregular migrants in particular. Fundamental rights, such as the right to respect for family life and the right to liberty, are under pressure. The accumulation of various ‘small’ legislative and policy changes has caused migrants’ rights to crumble.

Our analysis indicates that the combination of a strong civil society and an independent judiciary is key to offer resistance against this development. Civil society actors initiating judicial proceedings has been the most effective means of challenging rights-restricting migration measures in Belgium. If no cases for annulment of such measures are brought before the courts, they cannot annul them. Spurred on by civil society initiatives, the judiciary has at least halted some of the most egregious measures infringing upon migrants’ rights, such as the asylum quotas. Yet, more subtle or systemic measures aimed at undermining migrants’ rights have often not been questioned by these same courts in their – at times legalistic and formalistic – analysis. The Constitutional Court seems to focus, for instance when assessing the legality of the Asylum Act, on its compatibility with clear, delineated provisions included in EU law (in particular the Common European Asylum System). By contrast, the Court seems to be more reluctant to engage in broader assessments as to how certain changes, especially cumulatively, impact on human rights. In this sense, our conclusion is that the highest courts of Belgium have safeguarded minimal respect for migrants’ rights, whereas a maximalist interpretation of migrants’ rights could have led to a more stringent and critical review of the contested migration laws and regulations.

13 A Stable Yet Fragile System? Legal Resilience against Rights Erosion in Current Swedish Migration Policy

Rebecca Thorburn Stern and Anna-Sara Lind

13.1 Introduction

Migration and the rights of migrants pose a challenge to state sovereignty. While it is widely accepted that states have exclusive control over the rules governing their own nationality and are only required¹ to admit their own citizens into their territory, there are limits to this control when it comes to migrants; asylum seekers, in particular.² The right to seek and enjoy asylum and the principle of non-refoulement put constraints on a state’s power to decide who has a right to entry, as they provide the individual with a right, if not to remain in the territory, at least to have one’s claims for protection properly assessed, and to not be deported during the process. In an increasingly globalised world, this challenge to state sovereignty has become an issue of growing controversy. Controlling migration and the right to entry has become, as Dauvergne puts it, a core element, even ‘the last bastion’, of sovereignty.³ From this perspective, the arrival of migrants in a territory, in particular migrants who may be able to challenge the measures of control imposed on them, is easily perceived as a threat. In the context of globalisation, controlling borders may also be linked to protecting national identity, which includes some and excludes others. Among the excluded are migrants, but also in some cases those who do not conform to the image of the ‘ideal’ citizen (for example minorities of different kinds).

While the issue of migration has long been debated, in recent years it has climbed up the political agenda at the global, regional and national level. Although few states in practice have ever had a particularly generous migration and/or refugee policy,⁴ it could be argued that there has been a change in attitudes and in the tone of the debate over the last decade or so. Possible reasons for these changes include the securitisation of migration following the 9/11 attacks, the 2007/2008 economic crisis⁵ and the rise of right-wing populism and nationalism. In Europe, the ‘refugee crisis’ of 2015/2016 had the effect not only of opening the door for measures aimed at controlling migration that would have previously been considered extreme, but also of pushing limits in other fields, such as negative rhetoric about migrants and migration, eroding migrants’ rights, and a deteriorating respect for key elements of the democratic system, including the legislative process. The resilience of legal systems established to safeguard individual rights and the democratic system was challenged during the ‘refugee crisis’ and, it could be argued, has continued to be so in its aftermath. The desire not to end up in the same situation (i.e., the ‘crisis’) again, combined with the rise of right-wing populism targeting migration as a threat to Western societies, in many countries in Europe and elsewhere has meant that the delicate balance between the interests of migration control, rights protection, and stability in the democratic process has been tilted in favour of the first of these interests.

It has been argued that extensive restrictions of migrants’ rights in a time of populism is a sign of constitutional crisis, in the sense that incremental and systematic undermining of human rights is the result of democratic decay.⁶ On the other hand, it has also been proposed that while democratic decay and constitutional crisis may often coincide with restrictions of migrants’ rights through law and policy, the latter is not by default an indication of the former.⁷ As Aleinikoff suggests, restrictive migration policies and intolerance against migrants in a society ‘may also be the result of everyday politics, as democracies define and redefine understandings of membership and the benefits that attach thereto’,⁸ initiated by, for example, economic considerations or perceived threats to national security. In both cases, a central issue is the possibilities and limits of legal resilience against the dismantling of migrants’ rights.

There are several reasons why Sweden offers an interesting case for a discussion on legal resilience in this context. One is the reorientation of Swedish migration law and political discourse on migration in the wake of the ‘refugee crisis’.⁹ This reorientation, it could be argued, is due both to the actual strain put on the Swedish reception and welfare systems by the large influx of refugees in 2015, and to the framing of the events of late 2015 and early 2016 as a crisis not so much for the refugees as for Swedish society. Much effort has since gone into preventing Sweden from ending up in the same situation again. Legislation limiting migrants’ rights in various ways has been introduced, and the rhetoric has changed from ‘Refugees Welcome’ to casting suspicion on asylum seekers and their motives, labelling those arguing in favour of a return to the previous policy as ‘irresponsible’, ‘irrational’, and ‘goodness junkies’. A second reason concerns ‘crisis’ as such. The narrative of crisis – having been and still being in a state of crisis, avoiding a future crisis – we argue, has played an important role in underscoring the view of migration and migrants as a threat to the welfare state, law and order and to national security. This view in turn has been used to legitimise a migration policy based on the aim to control and deter rather than to manage migration in a way that is respectful of both state sovereignty and the rights of the individual. This narrative has also been used to facilitate and legitimise a revision of Sweden’s self-image that claims generosity and solidarity with those in need as two of its defining features.¹⁰

A third reason concerns the rise of right-wing populism in the country and the effects this has had on, at least indirectly, national migration policy. For many years, Sweden was an exception in Europe where populist parties increasingly gained influence and power. While in the neighbouring countries of Norway and Denmark, right-wing populist parties secured access to formal political power decades ago, their counterpart¹¹ in Sweden – the anti-immigration, nationalist party the Sweden Democrats (SD) – for a long time were on the political margins. Any interaction with SD on the part of the mainstream parties prompted considerable stigmatisation and even though SD gained seats in the Riksdag in the 2010 general election, the party remained fairly isolated in Swedish politics. This changed, however, in the aftermath of the 2015/2016 ‘refugee crisis’. The ‘crisis’ not only led to a U-turn in Swedish migration policy towards a substantially more restrictive approach to migrants and migrants’ rights than what had previously been the norm; it also became less important for mainstream politicians on the right to avoid associating with SD and their stance on migration and migrants’ rights.

Against this background, the aim of this chapter is to discuss, from a Swedish perspective, the possibilities and limits of legal resilience against the deconstruction and erosion of migrants’ rights amid the rise of populism. We also discuss whether limitations on migrants’ rights in the Swedish context should be taken as signs of democratic decay and constitutional crisis. In the context of these two issues, we explore the potential implications of the ‘crisis’ rhetoric in terms of how laws are drafted and implemented. We start by presenting our points of departure regarding the concept of ‘populism’ and populism in Sweden.

13.2 ‘Populism’ and ‘Populists’

13.2.1 On the Concept of Populism

Defining ‘populism’ is not an easy task.¹² There are many different views and interpretations of the concept that Gagnon et al have described as ‘less of a fixed entity […] and more of a shapeshifting phenomenon’.¹³ Mudde in 2004 defined populism as ‘an ideology that considers society to be ultimately separated into two homogeneous and antagonistic groups, “the pure people” versus “the corrupt elite”, and which argues that politics should be an expression of the volonté générale (general will) of the people’.¹⁴ Mueller suggests that populism is ‘a particular moralistic imagination of politics, a way of perceiving the political world which opposes a morally pure and fully unified – but […] ultimately fictional – people to small minorities, elites in particular, who are put outside the authentic people’.¹⁵ Mueller adds that in addition to this criticism of elites, populists also necessarily claim that only they ‘properly represent the authentic, proper, and morally pure people’.¹⁶ Moffitt speaks of populism in terms of a certain political style rather than a specific set of views.¹⁷ Nevertheless, in the contemporary literature¹⁸ and discourse, populism is often classified as being either ‘right’ or ‘left’. Right populism, in the words of Gagnon et al, is ‘characterized by emotionally-charged political appeals to addressing crises through neonationalism, masculinism, Othering, bordering, xenophobia, sexism, racism, phantasmatic ethnic golden-ageism, a disregard for liberal democratic norms, and so forth’.¹⁹ Left populism, on the other hand, is ‘said to hold the potential to address crises in a manner which secures the democratic project […] by deepening the legitimacy of real-existing democracies and upholding civic, political, and economic rights alongside material egalitarianism’.²⁰

Regardless of the political ideology to which a certain brand of populism leans, there are some common denominators. These are criticism of elites (even if one is part of the political establishment) and anti-pluralism (to claim that they, and they alone, represent the people and their true interest, and that anyone not supporting the populists might not be a proper part of the people).²¹ Mueller holds that the anti-pluralism of populists can be described as a form of exclusionary identity politics, and that this can be a danger for democracy as pluralism is at the core of any real democracy.²² Another factor central for populism is crisis, real or perceived, which acts both as a hotbed for populism, creating a space for its emergence (the external perspective), and as a tool for populists to create a situation in which ‘the people’ can be united against a threatening Other, and be more susceptible to arguments in favour of strong leadership and fast political action in order to prevent the crisis from getting worse (the internal perspective).²³ On the internal perspective, Moffitt argues that it is important to ‘acknowledge the performance of crisis as an internal feature of populism’²⁴ to understand how populists trigger crises in order to create a situation in which they can gain and exercise power.

A few words should be said here about populism and constitutionalism. Modern constitutionalism, Loughlin and Walker argue, is ‘underpinned by two fundamental yet antagonistic imperatives: that governmental power ultimately is generated from “the consent of the people” and that, to be sustained and effective, such power must be divided, constrained and exercised through distinctive institutional forms’.²⁵ This common understanding of constitutionalism as a demand for limited government is challenged by Barber who argues that constitutionalism also has a positive dimension in the sense that it ‘requires the creation of an effective and competent set of state institutions’.²⁶ Populism, on the other hand, Mueller holds, is often described as ‘inherently hostile to mechanisms and, ultimately, values, commonly associated with constitutionalism: constraints on the will of the majority, checks and balances, protection for minorities, or, for that matter, fundamental rights as such’,²⁷ and as preferring direct interaction with the people over communicating through institutions and organisations.²⁸ As Gustavsson has explained, populists disapprove of the rule of law, freedom of speech, freedom of association and legitimate opposition; they love majority rule but dislike political liberalism.²⁹ Populists, Mueller holds, will always claim that they (alone) represent the people and their true interests.³⁰ The populist leader is determined that it is only he or she who can legitimately represent the people. Showing that one is not part of the corrupt elite by, for example, not being ‘politically correct’ is a crucial element in this regard. The fact that there may be other ideas and interests that exist in society is irrelevant for a leader of this kind. Moreover, Mueller points out that while populist parties by conventional wisdom may be seen primarily as protest parties in opposition to government, populism in government is not self-contradictory since all failures can continue to ‘be blamed on elites acting behind the scenes’.³¹ Mueller identifies three distinct characteristics of populist government: colonisation of the state; mass clientelism as well as discriminatory legalism; and finally, repression of civil society.

13.2.2 Populism in Sweden

While populism, as discussed above, can be either right- or left-oriented (or both), what we mean when we talk about populism is usually right-wing populism, or radical right populism.³² The Swedish case is no different. While for many years Sweden did not have any successful populist or extreme right party (with the exception of the New Democracy Party, which only lasted a few years in the early 1990s), the Sweden Democrats, as mentioned in the introduction to this chapter, in the past decade or so have steadily gained ground.³³ The party has moved a long way towards becoming a part of mainstream politics: they have, as Hellström and Nilsson put it, evolved from being perceived as a loud organisation of angry young men with clear Neo-Nazi tinges around 1990 to now instead trying to become a party for the common man, attracting voters from all other parties including those who abstain from voting.³⁴ Since Hellström and Nilsson made these reflections in 2010, SD have moved steadily in the same direction, now being the one of the largest parties and a powerful player in Swedish politics. The fact that SD over the years have gone through a number of scandals concerning violent, racist, anti-Muslim and anti-Semitic statements made more or less clandestinely by its representatives on different levels, seems not to have halted this move into the mainstream, or indeed not to have done much damage to the party’s support base.

So, what kind of political party is the Sweden Democrats? Commentators and scholars have, drawing on understandings of populism such as those outlined in the previous section, presented several different definitions: that it is a populist party, a radical right nationalist party, a predominantly nationalist party, or an authoritarian populist party. According to their 2019 political manifesto, SD is a ‘social conservative party with a nationalist basic outlook’³⁵ that aims to combine the best elements from traditional ideologies on the right as well as the left of the political spectrum.³⁶ SD also defines itself as a party emphasising the importance of (national) identity and of identification with common values.³⁷ They strongly oppose multiculturalism and instead favour the assimilation of migrants into Swedish society with the aim for them to adopt Swedish majority culture instead of their own. On migration, the SD party manifesto states that SD does not oppose migration completely, but that migration to Sweden must be maintained at an acceptable level and not be of a kind that threatens national identity, welfare or security. The right to asylum, it is stated, should be limited (and appears to mainly apply to individuals seeking protection from armed conflict or disasters) and asylum policy should primarily focus on assisting refugees in their own countries.³⁸ It can be noted that the terminology used in the previous party manifesto, adopted in 2011, was more expressive with regard to ideas such as that of ‘inherited essence’³⁹ and the benefits of a strong national identity and a minimum of linguistic, cultural and religious differences to support social solidarity, stability and safety.⁴⁰ The position on migration and asylum in 2011 was basically the same as it is at present.

The wording of the 2019 party manifesto should be understood in relation to statements such as those made by the Sweden Democrats’ party leader, Jimmie Åkesson, in a speech held at the party’s 2019 national conference. The speech was permeated by nativist ideology.⁴¹ Åkesson spoke of how immigration has destroyed Swedish society, that there has to be a negative balance in migration (i.e. more returns than arrivals) and that the current situation in Sweden (‘Sweden is torn apart’) is all due to the catastrophic migration policy.⁴² He made it clear that SD is the only party that knows how to turn the tide and ‘make Sweden great again’, and that left-wing liberals are all to blame. With his statements, Åkesson ticks all the boxes for a right-wing populist with a xenophobic nationalist ideology: he is critical of the elite; he specifically speaks in terms of an ‘us’ opposed to ‘them/the Other’; he describes Sweden as being in a state of crisis from which his party is the only saviour; he speaks of a single national identity and sees migration as the main threat to the nation and society.⁴³ These and other similar statements firmly place SD in the right-wing populism category. In light of the declared aim of SD to become the dominant political party in Sweden, and the fact that in the 2018 general elections they became the third largest party, SD’s ambitions and position on migration should not be taken lightly.

13.3 Swedish Migration Law in Light of the 2015 ‘Refugee Crisis’⁴⁴

13.3.1 On Swedish Asylum Law and Policy before 2015

The right to asylum is not included in the Swedish Constitution. The right to international protection, however, has been regulated in Swedish law for decades. For a long time, Sweden was known for its generous and fair asylum policy and in the 1970s and 1980s, approval rates were relatively high. In the 1990s, however, Swedish asylum policy gradually became more restrictive, presumably as a result of the increasing trend of securitisation of migration, the adjustment to the Schengen system and, towards the end of the 1990s and onwards, harmonisation with EU law in the area of migration and asylum.⁴⁵ Despite the increasing Europeanisation of migration and asylum policy generally, Sweden retained its reputation as being comparatively generous in terms of both approval rates and reception conditions, exceeding the EU minimum standards at least regarding reception. Moreover, as a rule, Sweden granted permanent residence permits to persons in need of protection.

Exceptions were nevertheless made on several occasions to this generous approach. Such exceptions were motivated by a declared need to curb the number of asylum seekers arriving in Sweden. Early examples include the so-called ‘Lucia decision’ of 1989, which limited the possibilities of being granted asylum in Sweden to Convention refugees only and to individuals with particularly strong protection needs,⁴⁶ and the introduction of visa requirements for citizens from former Yugoslavia in 1992 and 1993.⁴⁷ These restrictive measures were all framed as a necessary reaction to a crisis, the crisis being that there were too many asylum seekers arriving during a short period of time, and that Sweden was unable to cope with the influx, including providing reception conditions to an acceptable standard.⁴⁸ Referring to ‘crisis’ and ‘exceptional circumstances’ as a means of rationalising and legitimising certain measures was thus nothing new or untested prior to 2015.

13.3.2 The 2015 ‘Crisis’: Consequences for Legislation, Policy and the Influence of Populist Approaches to Migration

‘Crisis’ became the key watchword in the autumn of 2015, when large numbers of asylum seekers, many from Syria, arrived in Europe. Towards the end of November 2015, more than 149,000 asylum seekers had arrived in Sweden since the beginning of the year.⁴⁹ This was almost twice as many as the year before, and more than 100,000 more than the number that was seen to have caused a crisis in 1989.⁵⁰ The large influx caused the then Swedish Prime Minister (Mr Stefan Löfven, Social Democrat), to declare in November 2015 (in sharp contrast to his previously generous stance towards refugees and asylum seekers, declared repeatedly in public speeches and debates) that this was a crisis situation and that Sweden was on the brink of collapse. Löfven declared that Sweden had done far more than its share and was in dire need of ‘breathing space’⁵¹ and that the influx of asylum seekers immediately had to stop or significantly decrease in order to avoid core parts of the social welfare system breaking down.⁵² The vast majority of the parties in the Riksdag agreed with this understanding of the migration situation as a serious crisis for Sweden and for the need to adopt drastic measures to curb the influx. This included parties generally positive towards migration such as the Green Party (which was in a coalition government with the Social Democrats at the time).

The measures presented in November 2015 aimed to significantly curb the number of asylum seekers arriving in Sweden in two ways. One was to make it more difficult to get to Sweden and claim asylum. This was to be achieved through introducing border controls and identity checks⁵³ (in particular, at the Danish border), making it difficult to reach and enter Swedish territory without a valid passport – something which most asylum seekers do not possess. The first border controls and identity checks were introduced in late November 2015 and an ordinance on identity checks entered into force in December 2015. The border controls are still in place at the time of writing, the basis for them today being national security rather than the need to curb migration flows.⁵⁴ The effects for migrants, however, remain the same.

The second set of measures aimed at making Sweden less attractive as a country of asylum. This included reducing the number of protection grounds and grounds for residence permits to a minimum, keeping only those to which Sweden is bound by its international obligations, further restricting the possibilities of family reunification by limiting access to family reunification only to those who have been granted residence permits on certain grounds and linking it to strict maintenance requirements, and making temporary residence permits (3 years for conventional refugees, 13 months for persons granted subsidiary protection or a residence permit on humanitarian grounds) the main rule.⁵⁵ These are the essential elements of the 2016 Temporary Law⁵⁶ which entered into force in July 2016, replacing the 2005 Aliens Act on matters on which they overlap. The law, which was prolonged in 2019, applied until July 2021. The effects of the Temporary Law as a deterrent to asylum seekers and migrants has been questioned: the decreasing number of asylum seekers in Sweden after the law was introduced in 2016 is likely to have been equally or more related to border controls at EU external borders than to Swedish legislation.

When introducing the deterrence measures outlined above, all imposing severe limitations on migrants’ rights, the crisis narrative – just as it was in 1989 and the early Nineties – was used to legitimise restrictions on migrants’ rights and to justify a policy that clashed with the humanitarian ideals that had constituted an important part of Sweden’s self-image.⁵⁷ The effects of the crisis on the political discourse on migration, however, became more substantial this time around. The crisis narrative, and the notion that restrictive policies on migration are required to deal with said crisis, continued to gain ground after restrictive measures were implemented. The fact that the influx of migrants decreased significantly towards the end of 2015 and the beginning of 2016 did not seem to matter in this regard. Instead, several political parties in the years following 2015 have adopted positions on migration similar to those of the Sweden Democrats regarding, for example, limitations on the right to seek asylum and to family reunification, although so far not adopting the ideological foundations of these positions as well.⁵⁸ In addition, despite the fact that SD do not in any way conceal their position on migration, asylum and migrants, some parties in the Riksdag (the Conservatives and the Christian Democrats in particular) today seem to have considerably fewer misgivings than before about collaborating with SD on various issues, including migration. These changes in migration policy discourse – what is accepted and what is not – are illustrated by the final report⁵⁹ of the all-party Commission of Inquiry on Migration, made public in late September 2020. The Commission of inquiry, with representatives from each party in the Riksdag, was tasked with laying down the general outlines for a future Swedish migration policy. While the Commission could not agree on a joint final proposal, its conclusions formed the basis for a government bill on making the bulk of the provisions of the Temporary Law permanent by including them in the Aliens Act.⁶⁰ The Riksdag passed the bill, and the legislation entered into force in July 2021. The impact of the crisis narrative is partly visible in the Commission’s conclusions, but even more so in some of the reservations and separate opinions of Commission members. Examples include the Conservatives arguing that Sweden is in an integration crisis as a result of ‘decades of high numbers of immigration combined with a defective integration policy’⁶¹ and that a restrictive migration policy is the only cure; the Christian Democrats speaking of an ‘integration debt’⁶² which needs to be paid off and that an austere migration policy is required for this to be possible; and SD describing immigration as a threat to fundamental Swedish values and the Swedish ‘Folkhemmet’, and that in order for the tide to turn, asylum-related migration must be ‘below zero’.⁶³ Things indeed have changed since the then Prime Minister, Mr Fredrik Reinfeldt (Conservative) in the early 2010s declared that his party would never accept support from or work with SD because of their xenophobic attitudes towards immigration and their political roots.

While some of the political parties in the Riksdag continue to strongly oppose SD on migration policy – the Centre Party, the Green Party and the Left Party being their strongest opponents – it seems clear that the populist, xenophobic SD, formerly regarded as extreme, has been very successful in influencing the political discourse in Sweden on migration, and have achieved this without softening their position. For it is not primarily SD who over the years have become more moderate, even though, as shown above, they have made some efforts to tone down their most controversial ideas (or at least how these are framed). SD’s main ideas on migration, national identity and assimilation remain the same as when they were more or less outcasts in Swedish politics. Instead, it could be argued that the parties on the mainstream right have moved substantially further to the right, thus contributing to normalising and mainstreaming radical right ideas on immigration. Mudde refers to this process as the radicalisation of mainstream political parties.⁶⁴ This mainstreaming also has the effect of normalising the populist radical right, allowing it to become ‘tolerated, and even embraced’⁶⁵ by business, media and political circles. Mudde notes that when mainstream parties have increasingly adopted the frames of the populist radical right, the populist right parties increase not only their electoral base but also their political impact, including influencing government agendas on migration.⁶⁶ This, we argue, is a fair and accurate account of the development in Sweden in the past few years.

Summing up so far, it seems clear that the Sweden Democrats and their populist, right-wing politics, not least in their narrative of migration as a ‘crisis’, have had a considerable impact on the migration discourse in Sweden, including other political parties adopting parts of their agenda. What was mainstream politics before 2015 is today considered by many as left-wing liberal and radical right ideas have become normalised and therefore likely to be more palatable to the electorate. Limitations on migrants’ rights today also appear to be regarded as much less problematic by many mainstream political parties, with keywords for migration policy today including restrictiveness, control, deterrence, and an increased focus on returns. There is also more attention being placed on the need for immigrants to ‘adapt’ to Swedish society, culture and norms, and on the connections between criminality and immigration. However, it would be hard to say for certain to what extent this mainstreaming of populist radical right views on migration and how it has contributed to the erosion of migrants’ rights is a result of constitutional crisis and democratic decay in Sweden per se. This is partly because the restrictive migration laws and policies are not mirrored by excessively restrictive rights limitations on other groups, or attacks on the independence of the courts. In the Swedish case, restrictions on migrants’ rights and democratic decay thus do not seem to be directly linked. In the following section, we turn to the question of how core values or ideals established in the Swedish Constitution may contribute to legal resilience against the erosion of migrants’ rights.

13.4 The Constitutional Framework, Core Constitutional Values and Legal Resilience

In order to understand a country’s core constitutional values, it is necessary to look to its history. A country’s constitutional order and the values it expresses reflect the country’s political development and the ideals and experiences shaping that particular society.⁶⁷ In Sweden, the way in which public power may be exercised as well as the relationship between government, parliament, the courts, government agencies and citizens draws on administrative structures and traditions established centuries ago, with the strong position of public administration being a defining feature. It can be noted that for centuries, institutions of public administration (government authorities, public officials) were where citizens directed their complaints. Courts were less important and relatively inaccessible to the average citizen or resident.⁶⁸ The important role played by public administration remains a key factor in Swedish constitutionalism today.

The Swedish Constitution consists of four fundamental laws: The Instrument of Government, the Act on Succession (from 1810), the Freedom of the Press Act (from 1949, dating back to 1766), and the Fundamental Law on Freedom of Expression (from 1991). Since the seventeenth century, the country has had several fundamental laws entitled the Instrument of Government. A key purpose of the Instruments of Government over the years is to provide the framework for the exercise of public power. The 1809 version of the Instrument of Government focused on separation of powers. In 1921, while this nineteenth-century Act was still in place, parliamentarism was introduced and the balance of power accordingly shifted from the King to the parliament and the government. However, this reshuffle was not reflected in the Constitution: instead, for decades an informal agreement between the King, the parliament and the government on accepting and adapting to the new forms of democracy guided their interactions and the division of powers. Political focus instead was on anchoring the young welfare state more firmly to Swedish society and administration by a number of significant societal reforms. The informal agreement on ‘the rules of the game’ of Swedish democracy were not formalised until 1974 when a new Instrument of Government entered into force, removing the idea of a pure separation of powers from the Constitution and instead formally recognising that the will of the people is supreme. The first article of the Instrument of Government thus reads as follows:

All public power in Sweden proceeds from the people.

Swedish democracy is founded on the free formation of opinion and on universal and equal suffrage. It is realised through a representative and parliamentary form of government and through local self-government.

Public power is exercised under the law.

That all public power proceeds from the people is the core value of the Swedish Constitution and its basic principle. It means that power, at least in theory, lies primarily with the parliament and the parliamentarians (the representatives of the people). The second part of the gateway article, stating that public power is to be exercised under the law, reflects two additional core values, namely the principle of legality and the principle of objectivity.⁶⁹

That all public power in Sweden proceeds from the people means that the country belongs to a minority of modern parliamentarian democracies which does not apply the Montesquieuean separation of powers, with its emphasis on the role of the courts and with substantial powers accorded to the executive branch. Consequently, Sweden does not have a constitutional court. Instead, the Instrument of Government provides all courts and public bodies with the right as well as the duty to put aside any legislative act which contradicts the Constitution or which has been decided in a way not in accordance with the constitution.⁷⁰ A system where judicial review is performed only when the legislation has entered into force and its application in a concrete case has led to difficulties related to the constitutional aspects of the act, has been referred to as decentralised or weak-form judicial review.⁷¹ This limited approach to judicial review – which Sweden shares with the other Scandinavian countries – must, however, be understood in the context of the constitutional history and the parliamentary-centred conception of democracy in these countries, both of which differ from many European states where constitutional courts play a key role, including in their review of acts passed by parliament.⁷² This approach should also be seen in light of socio-political factors common to the Scandinavian welfare states, such as faith in the state as a protective institution and an emphasis on the common good of the community rather than on individual rights.⁷³

There is indeed a constitutional body – the Council on Legislation – tasked with advising the government in the legislative process on whether a proposed act might impact on a constitutional matter or infringe upon fundamental rights. While the reports of the Council are only advisory and not binding, they are usually accorded considerable weight by the government in their drafting of the final version of a government bill. The Council’s comments and recommendations on controversial suggestions are often also picked up by the media. The Council thus exercises real influence in the legislative process. Yet there has been a tendency to accord less weight to the Council’s recommendations when there is a strong political incentive to put certain legislation in place, regardless of its quality. This is what happened with the legislation on migration proposed by the government during and after the 2015 ‘refugee crisis’ (briefly outlined above). The Council on Legislation provided devastating criticisms of both the proposal for the 2015 ordinance on border control and identity checks, as well as the proposal for the 2016 Temporary Law and the 2019 proposal on prolongation. The Council was critical of the poor quality⁷⁴ of the legislation, both as regards the legislative process and the legislation itself.⁷⁵ Regarding the 2015 ordinance, the Council in its comments said that the legislative process in this case did not live up to minimum standards due to the great haste which characterised it, the absence of an analysis of the constitutional implications of the proposals on border controls and the inadequate preparations of the proposal in general.⁷⁶ The critique did not, however, have much effect as the government presented a revised proposal to the Riksdag in mid-December 2015 that was then adopted just before Christmas 2015. The 2016 proposal on the Temporary Law received equally severe criticism: the Council emphasised that this proposal had also been hastily prepared, leading to unsatisfactory analysis of the proposal’s efficacy as well as its consequences.⁷⁷ The Council furthermore was critical of the material content of the law, questioning its compatibility with Sweden’s international obligations and Swedish legal tradition. However, in this case, the government went ahead with the proposal and drafted (with only minor revisions of the previous proposal) a bill which was presented to the Riksdag, in which a large majority in June 2016 voted in favour of the law. When the government proposed a prolongation of the 2016 law, the Council on Legislation for similar reasons was equally critical of the legislative process, albeit to no avail.⁷⁸ The conclusion to be drawn is that while the Council of Legislation usually functions as an obstacle for poor legislation, including such that has implications for the rights of individuals or groups or other constitutional matters, its advisory function means that the government can ignore its recommendations without doing anything formally wrong. It could be argued that this has a negative effect on the legal resilience of the system towards attacks on fundamental constitutional values.

The independence of the administration is another core value in the Swedish Constitution. The administrative bodies governed by the government are tasked with implementing and realising government policy. At the same time, they are independent in the sense that neither the government, the Riksdag, nor any other public authority ‘may determine how an administrative authority is to decide in a particular case involving the exercise of public authority vis-à-vis a private subject or a local authority, or the application of law’.⁷⁹ This independence, deeply rooted in Sweden’s constitutional and administrative law history, is also linked to a firm prohibition of government ministers making individual decisions in government affairs. This means that individual government ministers do not have a right of command over the administrative authorities and therefore cannot, for example, intervene in politically sensitive issues and/or individual cases, such as controversial cases of impediments to expulsion orders due to non-refoulement issues. The principle of the independence of the administration is closely linked to the ideal of the public servant as the guardian of democracy tasked with alerting their superiors (including politicians) when their actions are illegal, unethical or improper.⁸⁰ As a public servant, one is responsible for each decision one takes and one has the duty to decide in all matters indicated by the law in accordance with the law. Public servants in this sense are instrumental in the realisation of the rule of law. The independence of the administration and the role to be played by the civil servant contribute to legal resilience against political influence being exercised in concrete cases.⁸¹

The transparency of the legislative process constitutes another key element or value in the Swedish Constitution. All government bills are subjected to a multi-step preparation process involving different parliamentary committees, government inquiries and a consultation process through which the necessary information and opinions shall be obtained from the public authorities concerned (and local authorities as necessary).⁸² Organisations and individuals are also to have the opportunity to express an opinion as necessary. Following constitutional practice, consultation is considered mandatory in legislative matters.⁸³ The objective is for the legislative proposal to be as good as possible in order to avoid difficulties in implementation (for courts and other agencies), which could ultimately undermine the legitimacy of and trust in the system. The legislative process is subject to certain timeframes – the consultation process, for example, is generally to be allowed a minimum of three months – aimed at allocating sufficient time for preparation of draft legislation to ensure its quality. In addition, the timeframes are put in place for the protection of the minority in the Riksdag by allowing for deliberations to be held before the vote. These are thus measures introduced to put constraints on the will of the majority and its chances of ruling unchallenged. The system is accordingly construed in such a way that time in itself is a safeguard and a means to ensure legal resilience.

It should, however, be noted that the majority of the steps included in the legislative process are not explicitly stated in the Instrument of Government, but are instead ‘informal’, unwritten rules, developed through well-established practice. In the case of the 2015 border control and identity check regulation, these informal rules were upheld in name only. Consultations were indeed carried out, but public authorities and other actors were given no more than around forty-eight hours to analyse and respond to proposals that included serious rights limitations on the right to seek asylum and the right to movement and which would provide the government with far-reaching powers to close Sweden’s borders and effectively introduce a state of emergency.⁸⁴ This lack of respect for the consultation process was a key part of the Council of Legislation’s characterisation of the legislative process in this case as sub-standard (as described above). In the case of the 2016 Temporary Law, while the constitutional practice on timeframes for the consultation process indeed was followed not only in form but also in substance (albeit with a tight schedule), the impact of the comments on the final product, the government bill, were minimal, even though a majority of the consultation bodies had been very critical of the proposal, not least regarding rights limitations. The Council on Legislation again heavily criticised the government for the legislative process’s lack of quality. This critique was picked up by the media and prompted significant debate.

The weakness of informal rules on how the constitutional safeguards are to be applied is such that they can be more easily disregarded than rules explicitly included in the Constitution. This is what happened in Sweden when the legislation during and in the aftermath of the 2015 ‘refugee crisis’ was drafted. In these cases, the feeling of crisis and of urgency, promoted and pushed by politicians both within and outside of government, was allowed to trump the informal rules that are intended to provide context to and fill the written rules of the Constitution with meaning. While this erosion of essential elements is not⁸⁵ a phenomenon limited to migration, it has been particularly evident in this context.⁸⁶ In the current system, there is no real possibility to prevent poor legislation from being adopted, as long as there is a majority for it in the Riksdag. A Constitution that relies on all actors playing according to both formal and informal rules, and where respect for the democratic system is implicit rather than spelled out, becomes vulnerable in situations when the common understanding of ‘how things are done’ is put aside or ignored. This might occur when the government decides that a certain matter is of such urgency that immediate action is required, or when the country is in an exceptional situation. The 2015 ‘refugee crisis’ was such a situation.

Lastly, we turn to fundamental rights protection as a core value. Sweden is an interesting case as its Constitution on the one hand includes specific Acts protecting certain rights and freedoms, namely the Freedom of the Press Act⁸⁷ and its ‘sister act’, the Fundamental Law on Freedom of Expression, which together provide a constitutional structure exclusively applicable and construed to guarantee the highest possible degree of protection for transparency and free speech. On the other hand, it can be argued that protection of fundamental rights and freedoms has not been a core priority in the Constitution, whose ‘catalogue of rights’ (Chapter 2 of the Instrument of Government) is relatively limited (civil and political rights only), and was only introduced in 1980.⁸⁸ The reluctant approach to ‘rights talk’ must, like the approach to judicial review discussed above, be understood in the context of the emphasis on establishing a strong government and a welfare state. It is equality and inclusiveness, rather than fundamental rights protection, that characterised much of twentieth-century politics in Sweden, dominated for decades by the same party (the Social Democrats).⁸⁹ In addition, the school of Scandinavian Legal Realism and its insistence on the primacy of politics over law which constituted a dominant presence in Nordic legal and political discourse in the mid-twentieth century, has been held to be, as Strang puts it, ‘a major reason for the comparatively weak protection of minority, individual and human rights in the Nordic countries’.⁹⁰ The position of rights protection on the constitutional level in Sweden, however, was significantly strengthened with the incorporation into Swedish law of the European Convention on Human Rights in 1995 and the general Europeanisation of Swedish law due to joining the European Union in the same year, both of which have led to rights protection enjoying greater priority in courts as well as in policymaking than before. In this sense, fundamental rights as a core constitutional value have gained ground. This is visible also in the courts. In the context of migration, recent case law from the Migration Court of Appeal exhibits the resilience of the legal system against excessive limitations on migrants’ rights. In a 2018 case concerning the right to family reunification based on the 2016 Temporary Law, the Migration Court of Appeal found that refusing an eight-year-old boy with subsidiary protection status the right to reunite with his parents in Sweden would be contrary to Article 8 ECHR and the Convention on the Rights of the Child.⁹¹ This judgment prompted the government, in the 2019 bill on prolonging the Temporary Law, to open up the possibilities for family reunification for the category of subsidiary protection.⁹² In a 2020 judgment⁹³ on the right to remain in Sweden on humanitarian grounds, the Migration Court of Appeal found that expelling a fourteen-year-old girl born in Sweden but who for long periods of her life had not had a residence permit would be contrary to Sweden’s obligations under Article 3 of the Convention on the Rights of the Child (the Convention was formally incorporated into Swedish law as of 1 January 2020). Both judgments are examples of when the rights of individual migrants are found to trump the interest of the state in limiting and controlling migration.

Finally, a few words should be said about how the Swedish Constitution, in particular the core values outlined above, functions in times of crisis, emergency or in other times of urgency. While there is a chapter on war and danger of war in the Instrument of Government (Chapter 15) and provisions on how constitutional power can be transferred from the Riksdag to the government,⁹⁴ the Constitution does not include any specific rules addressing crisis or other emergencies in peacetime. While there is a certain preparedness for such situations included in the legal system (including acts allowing the government to decide on a range of matters in urgent situations), the Constitution as such does not allow for general diversions from the division of powers, the legislative process, or how fundamental rights may be limited. Instead, situations of crisis are intended to be handled within the existing framework, including the unwritten rules established by constitutional practice referred to above.⁹⁵ This means that in a situation such as the 2015/2016 ‘refugee crisis’, or the (at the time of writing) ongoing coronavirus pandemic, there is no constitutional support for abandoning standard procedure. While the system indeed allows for some leeway, for example, as regards timeframes for the drafting of new legislation and the consultative process when new legislation urgently needs to be put in place, the fact remains that a crisis narrative (such as the one framing the large influx of refugees and migrants in 2015) cannot be used to legitimise serious derogations from core constitutional rules, values and practice.⁹⁶

In sum, then, we hold that the core values described here, taken together, form the legal resilience of the Swedish system. There are, as discussed above, weaknesses built into the system such as the relatively limited system of judicial review, the trust placed in adherence to informal rules, and the limited scope of fundamental rights included in the Constitution. At the same time, core values such as the independence of the administration and the transparency of the legislative process are powerful tools to prevent anti-democratic and anti-pluralist parties or politicians from pushing through their ideas. The Council on Legislation, while having an advisory function rather than that of a constitutional court, nevertheless plays an important role. It is suggested here that the inherent inertia of the administrative system and the legislative process is a key element of legal resilience against rights erosion, for migrants as well as for other vulnerable groups. The protection of fundamental rights as a core constitutional value and the increasing weight accorded to individual rights protection in the courts, including migrants’ rights, contribute to the legal resilience of the system against rights erosion. In addition, the fact that the Swedish Constitution does not allow for derogations from these standards and values except for in very specific situations – war or danger of war – further contributes to the stability of the system. Therefore, at least on the surface, constitutionalism seems to provide a basic protection against populism and acts as a guarantee for liberal pluralism in Sweden. That said, there remains a warning sign in the extent to which the right-wing populist narrative on migrants and migration, for so long advocated by the Sweden Democrats, appears to have taken root, and the effects that this might have on further rights limitations for migrants and indeed for other groups, such as minorities. The envelope indeed has been pushed on this point, and may be further so, particularly if mainstream political parties on the right continue to facilitate and normalise radical right-wing populist views and narratives, even adopting them as their own.

13.5 Conclusion

So, the question arises, what can be done? Can one limit the growth and influence of populism? Gustafsson suggests two ways in which this can be done (although how fruitful they might be is another matter). Firstly, one could change the rules relating to populist groups. This is, however, not the easiest thing to do. It is never easy to limit and prohibit authoritarian political parties and organisations – at least in a democracy. Prohibitions of political parties and organisations are difficult to introduce and to apply. This is even more difficult when talking about populist parties that have become important actors in elections and public debates.⁹⁷ This leads us to the second option: to limit the rights relating to freedom of expression, organisation, rule of law and legitimate opposition. By taking these measures, it would be more difficult for populist parties to gain and retain power. In the Swedish context, the Constitution includes a possibility to prohibit racist organisations.⁹⁸ Although this possibility has been investigated on several occasions in recent decades,⁹⁹ the prohibition has yet to be used. The tools inserted in a democratic constitution seem to be rather difficult to combine with upholding the constitutional framework, especially when the key values of transparency, free speech and political rights are intimately intertwined with the core principle of the ‘will of the people’. Unfortunately, seeking to prohibit populist and anti-democratic movements often ends up violating the very values and norms one seeks to protect. Perhaps instead, the answer is tolerance and to strive not to use the whole spectre of constitutional powers. In addition, the respect for and understanding of informal constitutional rules, individual rights, and the value of constitutional norms in practice as well as in theory should be strengthened.

Every country has its own constitutional experience. In Sweden, particular challenges for understanding the importance of protecting fundamental human rights and the value of a strong constitution might be posed by the fact that for centuries Sweden has not experienced emergencies such as wars and revolutions that could have forced us to make crucial decisions threatening different interests at the same time. Nor has Sweden been under authoritarian rule. When a country has not experienced a state of emergency, authoritarianism and limitations on fundamental civil and human rights, it might be more difficult to appreciate the importance of strong democratic safeguards of constitutional values such as the rule of law, transparency and protection of fundamental rights. By no means do we suggest that such negative experiences might act as a vaccine against authoritarianism or populism; this would be naïve given the numerous examples indicating the opposite. Rather, we suggest that the development in Swedish migration policy since 2015 towards restrictions of migrant’s rights, the willingness of mainstream political parties to adopt and act according to radical right-wing narratives on migrants and the lack of respect for various elements in the legislative process in the name of urgency may at least in part be a consequence of not having experienced what it means to live in a society where democracy and rights are limited, not for all, and in form more than content. Perhaps one should not lay the blame solely at the feet of the populists for the lack of a democratic compass in recent years but also look to those politicians and political parties that pave the way for them, transforming fundamentally extreme ideas into mainstream politics without admitting the risks this might entail for core democratic values. To argue that Sweden is in a situation of constitutional crisis and democratic decay as a result of the restrictions of migrants’ rights would, however, be going too far, given the absence of vital signs of democratic backsliding such as erosion of the judiciary’s independence, limitations on the freedom of the press and electoral manipulation. Instead, the changes in approach to migrants and migration should be understood as a development that may coincide with a broader pattern of challenges to core democratic values but which nevertheless is a separate phenomenon.

14 ‘Populism? It’s Administrative Law, Stupid!’ How Administrative Law Subverts Legal Resilience

Bas Schotel

14.1 Introduction

The editors of this volume put two research questions to the contributors. First, what is the connection between populism, restrictive migration laws and democratic decay? Second, what are the possibilities of legal resilience against restrictive migration laws? In this chapter, I argue that administrative law lies at the heart of both questions. Triggered by the first research question this chapter asks how populist anti-migration discourses have made it to actual laws and legal decisions. It asks what legal infrastructure makes restrictive migration laws possible in the first place. My answer is administrative law.¹ Rather than understanding populist restrictive migration policies as a failure of ECHR, EU and constitutional law to protect migrant rights, this chapter looks at how administrative law is distinctively well-suited to produce restrictive migration laws. By distinctive I mean better than criminal and civil law. The focus on administrative law also informs my answer to the second question: resilience against restrictive migration laws will remain marginal and incidental as long as the legal profession fails to critically examine and challenge the basic features of the legal infrastructure underpinning migration policies, that is, administrative law.

Section 14.2 briefly explains why the first research question about the connection between populism, restrictive migration laws and democratic decay leads to the question about the legal infrastructure underpinning populist restrictive migration laws. The Section also identifies some basic features of restrictive migration policies which the legal infrastructure must cater for. To this end, it relies on the descriptions and analyses of the restrictive migration policies from the country studies in this volume.

Section 14.3 identifies the distinct features of general administrative laws or law-making, namely forward-looking, dynamic, and the capacity to categorize people. These features make it easier, compared to other branches of law, to translate restrictive migration discourses and policy objectives into law.

Section 14.4 explains how individual administrative acts grant authorities the discretion and legal legitimacy needed to implement the restrictive migration policies in ways not possible under criminal law.

Section 14.5 concludes on a pessimistic note. It critically examines the current instances of legal resilience against restrictive migration policies. It finds that the three types of legal resilience, namely judicial interventions by the ECtHR, CJEU and constitutional courts, signal and legitimize the lack of legal resilience within administrative law.

14.2 Populism, Restrictive Migration Policies and Democratic Decay

The contributions in this volume examine the possible connections between populism, restrictive migration policies and democratic decay. The picture that emerges from the country studies is not straightforward.²

First, the country studies record restrictive migration policies and crumbling migrant rights.³ Furthermore, a new wave of populist parties and movements has found access to the formal channels of state power. Either because the parties obtained an absolute or coalition majority in parliament,⁴ or because conventional parties co-opt the popular discourse and policy stances.⁵ Anti-migration discourse is a crucial part of the populist political agenda and one of their main electoral selling points. Arguably, there is thus a close connection between populism and restrictive migration policies. By the same token, the country studies also indicate that many restrictive migration policies predate the new populist parties and movements (e.g., Austria, Italy). It suggests that conventional parties were already populist avant la lettre or that the anti-migration discourse is simply not unique to populism. This raises a question about the general legal infrastructure that makes it possible to enact and implement restrictive migration laws, regardless of who is in power: populists or conventional parties.

Second, the country studies, in line with the burgeoning literature on rule of law and democratic decay in Europe, show a clear link between populism and an authoritarian rule of law.⁶ Crucial in this respect is the breakdown of constitutional safeguards, especially judicial independence of the highest courts.⁷ The populist strategy is clear. If the constitutional constraints are lifted, the populists can have it their way: retain power and marginalize political opponents and social opposition. Again, this raises questions about the nature of the basic legal infrastructure that can continue to operate its daily business without constitutional constraints. To put it differently, what kind of law is able to maintain its legal character while the constitution is breaking down? Why do we speak of a constitutional breakdown but not of the breakdown of administrative law? The answer might be that normal administrative law is already quite well-suited to make populist, anti-migrant or authoritarian agendas legally possible.

Third, though anti-migration policies and laws may amount to instances of democratic decay and an authoritarian rule of law, the reverse is not always the case: democratic decay is not tantamount to anti-migrant policies. Empirical studies have shown that authoritarian regimes may in fact adopt policies that are relatively favourable to immigration.⁸ Yet those policies do not grant legally enforceable rights to migrants. So probably if there is a connection between authoritarianism and anti-migrant policies, it is not so much that authoritarians necessarily oppose migrants, but they do oppose rights.

Hence, the connection between populism, restrictive migration laws and democratic decay is not clear-cut. But precisely because restrictive migration laws cannot be traced back to populism and democratic decay, a fundamental legal question emerges: what is the legal infrastructure then that makes anti-migration policies possible in the first place, irrespective of populism and democratic decay? Or what is the legal infrastructure that allows populists to turn anti-migrant discourses into law? My answer is administrative law.

Administrative law has particularly distinctive features that allow authorities to do things that would not be possible under normal criminal and civil law. Since migration policies are largely matters of administrative law, politicians and authorities can benefit from these distinct features when legislating and executing immigration policies. While migration policies have become a matter of administrative law for historical reasons, there are also practical reasons for why administrative law is distinctively well suited to enact and implement immigration policies.⁹ When enacting immigration laws, policy makers generally find that administrative law gives them the freedom to incorporate highly politicized discourses. And when executing immigration policies, the administration is granted significant de facto and legally sanctioned freedom to act. By the same token, this freedom to make and execute immigration law is governed by law, thus granting authorities a legality bonus.

In the sections below, I will discuss the distinctive features of general administrative laws and of individual administrative acts. But first, I will briefly return to the country studies in this volume. For if we want to see how administrative law distinctively caters for – populist – restrictive immigration policies, we need to know what the basic ingredients of anti-migration policies are. In other words, what do populist policymakers need for their restrictive migration laws? Or if we want to ask the question from the perspective of administrative law: what do populists want from administrative law?

The first ingredient of anti-migration policies is an anti-migrant discourse. Populists need to have their anti-migrant language and logic incorporated in legal instruments. Thus statutes should be capable of integrating the language whereby people can be categorized in terms of ‘us’ and ‘them’.¹⁰ The law must be able to adopt language whereby certain migrants can be considered wanted and others unwanted.¹¹ The challenge of populism, however, is that the categorization is not so much based on actual behaviour, but on expected behaviour and ascribed properties of the particular groups (ethnicity, country of origin, etc.). For example, the legal instruments used to enact and implement anti-migration policies must be able to depict unwanted migrants as dangerous or criminal, but without the normal legal provisions and mechanisms of criminal law.¹² Normal criminal law actually defies the populist logic of making quasi existential distinctions between groups of people (‘us’ versus ‘them’; ‘good citizens’ vs ‘dangerous people’). Normal criminal law requires a clear statutory definition of a particular behaviour that is prohibited, as opposed to merely ascriptive qualities (e.g., race, nationality, religion, gender, etc.). Next, criminal law investigations and criminal prosecution pertain to alleged criminal behaviour of individuals, as opposed to groups. Furthermore, the alleged criminal behaviour must be established in fact by an independent court, as opposed to mere speculations and allegations. Finally, when convicted the person does not become a ‘criminal’. In fact the notion ‘criminal’ to designate a person who has committed a crime does not exist in criminal law. One is a suspect, defendant, perpetrator, or convicted person. So strictly speaking it is conceptually impossible to use criminal law to depict migrants as criminals.

Second, as populists are typically on a permanent election campaign,¹³ there is a constant need to adapt policies to the new discourses and policy objectives. In other words, populists need a kind of law that they can change by a stroke of the pen.¹⁴ Of course, formally speaking legislation is the primary source of law in all branches of law, except for international, human rights and constitutional law. And in theory this allows for rapid and instant changes in the law. But in civil and even criminal law the main substantive legal norms change slowly over time and are often the product of a long interpretative practice, inside and outside the courts.

Third, restrictive migration policies are largely about making life difficult for unwanted migrants. It means one needs a kind of law that can govern the life of unwanted migrants as much as possible. This may mean actively intervening through coercive actions.¹⁵ But it may also include non-coercive measures or simple passivity, for example, denying social, economic, educational assistance and limiting the practical possibilities to apply for permits and benefits.¹⁶ The measures may target migrants directly, or those that are helping them, for example, NGO’s or captains of vessels at the High Seas.¹⁷ Again, non-coercive measures can be extremely effective in this respect; for instance, by denying subsidies or checking the transparency of funding (Poland, Hungary). Another useful tool is the capacity to take measures that are unlawful but nevertheless have immediate effect and which, until annulled by a court, can make life really difficult for a migrant (e.g., unlawful denial of a visa, see below Section 14.4.2).

Fourth, in order to implement restrictive migration laws, the authorities need sufficient freedom to act. This is especially relevant for populists. Though they may incorporate their populist discourse into the recitals of legislation and general objectives, it is more difficult to introduce outright racial, religious and ethnic considerations into actual legally binding criteria, especially when it comes to asylum law. What is needed is a mechanism whereby the migration authorities have discretion to determine whether the legal and especially factual conditions for a migration decision are satisfied. In other words, there must be a point up to which the migration authorities need not further justify and substantiate their decisions. This space of discretion should be sufficiently large to cover up for the populist motives underlying the migration decisions. Of course, such a mechanism runs the risk of being perceived as mere prerogative and arbitrary power. Thus, the mechanism must also provide for legal legitimacy. A proven tactic for legal legitimacy is technical expertise. Accordingly, the migration authorities are not presented as political agents but are technical experts in the field of migration. They deserve to have discretion because they are politically neutral experts. Another source of legal legitimacy is to ensure – at least on paper – that migration decisions are susceptible to review by an independent court. Yet, the downside is that genuine judicial review may significantly limit the discretion of migration authorities. Hence populists have an interest in a legal infrastructure that has enough judicial review to grant legal legitimacy but that in practice is sufficiently limited to maintain wide discretion. Populists need a legal infrastructure that provides for full access to the courts on paper, but that also allows authorities to de facto limit access to the courts. A case in point is limiting or abolishing independent legal aid for migrants. Another way for the legal infrastructure to grant both legal legitimacy and discretion is to have courts that have – or think they have – only a limited mandate to review individual migration decisions.

So in order to enact and implement their anti-migration policies populists need at least four things from the law. First, they need a kind of law that can easily incorporate ‘hyper’ political discourses and objectives which are often new or alien to traditional legal concepts. Second, they need a type of law that is accustomed to constant and immediate change. Populists must be able to constantly adapt the law to what is politically topical as they are on a permanent electoral campaign. Third, they need a form of law that is capable of categorizing groups of people on the basis of ascriptive qualities rather than individual behaviour. Finally, they need a legal infrastructure that gives the administration the freedom to implement populist policies but while maintaining a veneer of legal legitimacy.

In the next sections I will show how administrative law caters for these things. For analytical purposes it is helpful to distinguish between two levels of administrative law: general administrative laws and individual administrative acts. For the purposes of this chapter, I define general administrative laws as the general legal norms issued by Parliament, government and administrative agencies that are governed by the general rules of administrative law, as opposed to criminal and civil law. For example, an Alien Act enacted by a national legislator is a general administrative law; royal and ministerial decrees further implementing an Alien Act also constitute general administrative laws. General rules, regulations and guidelines issued by Immigration Authorities constitute general administrative laws in my definition. The individual administrative decisions are legally binding acts issued by the administration and directed at individuals, for example, granting or denying asylum, granting or refusing a building permit, withdrawing social aid. The distinction between general administrative laws and individual administrative decisions is helpful because they cater for different ‘populist needs’. The characteristics of individual administrative acts are well suited to enable populists to enact populist policies. The characteristics of administrative law are well suited to enable populists to implement their policies.

14.3 General Administrative Laws: Forward-Looking, Dynamic and Capable of Categorizing People

General administrative laws have three qualities that are particularly well suited to cater for anti-migration policies. Administrative law-making is largely forward-looking, dynamic and has the capacity to categorize people. General administrative laws are forward-looking in the sense that they are about improving the existing social, economic, cultural, environmental, and public ordering of things and people, rather than simply maintaining and restoring the existing order.¹⁸

Certainly civil laws also reflect political preferences and choices. But the objectives are much more general and indeterminate (e.g., individual autonomy, efficient markets). They are not forward-looking in the sense of seeking to improve and change the existing order. Rather civil laws are supposed to be an expression of or a medium for the existing order. For the civil laws (e.g., the Civil Code) do not tell people how to behave in precise and concrete ways: the precise and concrete content of civil laws are largely determined by individual consent and custom, and not by particular political objectives.¹⁹ It also means that courts, not politicians, play a crucial role in specifying what behaviour is required or permitted. Often when legislators enact civil laws they explicitly indicate that the content of particular legal standards needs to be further developed by the courts. It implies that the legislator welcomes legal conflicts as they may result in case law. This is typically not the case for general administrative laws. These seek to immediately impact and improve the existing order. The administrative lawmakers (Parliament, national government, local administration or agencies) often issue highly detailed standards that – at least on paper – should allow the implementing authorities and citizens to immediately adapt their behaviour. In this respect general administrative laws rather seek to avoid these problems being brought to the courts.

Similarly, normal criminal laws (as opposed to the criminal provisions in administrative laws) are not about improving or changing the existing order but about restoring the order. Most normal criminal laws only tell you what not to do but do not tell people how to behave in order to improve the economy, environment, cultural life, etc. Normal criminal laws do not give concrete and detailed norms of behaviour in order to achieve a particular political objective.

The direct consequence is that while in civil and criminal law the content of particular substantive legal norms is determined by legal practice inside and outside the courtroom, in administrative law the lawmakers take the lead. This also explains the highly dynamic nature of administrative law-making. The production of new general administrative laws is prolific, especially compared to normal civil and criminal laws. But also the number of changes made to laws in a single functional field is impressive. Rather than having legal practice fill out the content of substantive norms, lawmakers constantly adapt the content of administrative law to meet new practical, bureaucratic or purely political needs.

The forward-looking and dynamic nature of general administrative laws makes administrative law the field of law that is most responsive to political ambitions and political discourse. I believe this basic feature of administrative law-making explains why administrative law constitutes an ideal legal infrastructure for populist anti-migration discourse. Administrative law is the field of law where law-making easily follows the particular political agenda of the lawmakers and does not feel the need for any long-term embedding in actual legal practice inside or outside the courts. If existing migration policy discourse and objectives are felt too soft, they can be replaced easily by new general administrative laws with a stricter discourse and policy objectives. To be clear, this is not specific to or distinctive for populist anti-migrant discourse. General administrative laws might just as well incorporate discourses that are progressive, multicultural and oriented at social equality. The point here is to show that, of all branches of law, administrative law is most capable of immediately translating political platforms into law.

The forward-looking nature of general administrative laws also means that administrative law is largely permissive and instructive. Contrary to criminal laws that are largely prohibitive, administrative laws seek to promote particular activities because they allegedly will improve the social, economic, environmental and cultural order, or even create a new one. A quintessential mechanism in this respect is the system of permits and licenses. In effect, in migration law, permits to enter and stay in the territory constitute the central legal mechanism. A permit system offers legal certainty to migrants who have a permit because they know ex ante that their entry and stay are lawful provided they comply with the conditions of the permit. This is typically not possible under the system of prohibitive criminal law rules that does not offer citizens the possibility to seek clearance rulings with the public prosecutor. But it also means that general administrative laws have the potential to intervene actively in many aspects of social life and impose particular types of behaviour. Furthermore, the system of permits also implies that migrants must pro-actively seek contact with the administration and apply for a permit. The migration authorities can then make life difficult for the applicant by stalling the procedure or refusing the permit. This is not possible under criminal law. If authorities want to make life difficult for migrants through criminal law they must actively start legal proceedings against them.²⁰

Closely related to the forward-looking and dynamic nature of general administrative laws and the ambition to improve or even change the existing social and economic order is the welfare state. Certainly, administrative law does not necessarily entail a fully-fledged welfare state, but a welfare state does require a well-developed administrative law. A large part of the welfare services is only accessible through the system of social benefits. It means that individuals have to pro-actively contact the administration and apply for social benefits. Here again the administration can make life difficult for individuals by stalling the procedure or denying the benefit. In most European countries today, social and economic structures are such that it is difficult for a person without a regular paid job to live a decent life without the minimal social and educational benefits provided for by the welfare state. This is even more the case for migrants. If so, then the welfare state and administrative law are both a means to help migrants and an instrument to make their lives extremely difficult. Furthermore, since the benefits are largely governed by administrative law, they do not have the same legal status as normal enforceable civil subjective rights. In other words, the distribution of the benefits is more a matter of policy than rights.

Another crucial feature of general administrative laws is the capacity to categorize people on the basis of ascribed qualities rather than their actual behaviour and will. Not only for policing people but also for benign measures, especially providing public services in the context of a comprehensive welfare state, it is essential to divide people in categories that are perceived relevant for the administration (age, gender, ethnicity, income, type of profession, medical condition, postal code, religion, domicile, number of children, etc.).²¹ Furthermore, it is necessary that the categories are sufficiently formal in order to be incorporated in the bureaucratic apparatus. Finally, the authorities must be able to adapt the categories swiftly for reasons of either administrative or political expediency. The ability to categorize people on the basis of ascribed qualities makes it possible to immediately target people and distinguish between people without the need to establish their actual behaviour. It is therefore a powerful instrument to include and exclude people. The inclusion and exclusion can be used for benign social and emancipatory purposes (e.g., comprehensive welfare state). But it can also be used for purposes of enacting restrictive migration policies, making it possible to distinguish between wanted and unwanted migrants on the basis of ascriptive qualities. In the field of labour migration it is possible to distinguish between wanted and unwanted migrants on the basis of seemingly neutral economic selection criteria such as education, training, work experience and language skills, which can operate as a proxy for more suspect criteria such as gender, ethnicity and religion. In the area of humanitarian visas it is possible to openly select on the basis of such suspect criteria. For example, a populist government may pro-actively decide to grant humanitarian visas to a particular group of Christian migrants. Since the humanitarian visas are a matter of favour and not right, the categorization will not be considered discriminatory. This form of categorization is even possible when a populist government pro-actively grants asylum to migrants located in an UNHCR refugee camp. This will not be considered a form of discrimination provided that the government leaves open, at least on paper, the possibility for other migrants to seek asylum.

Of all areas of law, administrative law is the best suited to categorize legal subjects in function of ascribed qualities. Criminal law and civil law look mainly at the actual behaviour and will of legal subjects. A case in point is the ruling by Italian constitutional court of 2010 annulling a Decree that made irregular stay an aggravating circumstance for any offence committed by a foreigner.²² Of course, in civil law the ascribed properties of the person (e.g., gender, age, descent) are crucial in family law, the law of persons and estate law. But the categories have remained quasi the same over centuries and in practice cannot be changed swiftly. In administrative law legislative and regulatory change at both parliamentary and executive level is extremely fast and prolific compared to criminal and civil law.

14.4 Individual Administrative Acts: Discretion and Legality Bonus

As we saw in the previous section, general administrative laws are well-suited to accommodate the highly political logic of populist anti-migration discourses and policy objectives. General administrative laws can easily and quickly translate political discourses and policy objectives because they are predominantly forward-looking and dynamic. General administrative laws can accommodate anti-migration discourses and objectives because they have the capacity to continuously make new categorizations of people. General administrative laws are thus a crucial element of the legal infrastructure that makes anti-migration policies possible.

Arguably, general administrative laws are often a sufficient tool for politicians. In many cases it may suffice for politicians to show they adopted laws that directly reflect a particular popular political position. The actual implementation, let alone effectiveness, of the laws is irrelevant. This seems particularly the case when it comes to migration policy. Across the political spectrum lawmakers have shown no interest in either the real empirical causes and modes of migration or the empirical effects of migration policies.²³ It suggests that the real effectiveness of migration policies and laws is often irrelevant from a political and electoral perspective. Probably for the majority of voters (and thus politicians) what really matters is their perception of migration and migration policies, not the actual effects. Still, general administrative laws do get implemented. Even if the overall effectiveness of migration policies is doubtful, sometimes migration authorities must take immediate and concrete action either to address real incidents or to appear tough in the media. Migration policies may not be effective, but they do have consequences.

If general administrative laws are the instrument to enact populist migration policies, then the individual administrative act is the instrument to implement the policies. The individual administrative act is another crucial element of the legal infrastructure that makes populist anti-migration policies legally possible. Elsewhere, I identified and analyzed the authoritarian elements of administrative law in European jurisdictions. My analysis focused on the typical features of the individual administrative act: i) presumption of legality and the privilege of execution; ii) policy and factual discretion for the administration; iii) judicial deference to policy and factual discretion.²⁴

Presumption of legality means that the administrative act is deemed to be lawful; it has immediate legal effect and must be complied with accordingly. Only when the administration withdraws the administrative act or a court annuls it, does it lose its legal effect and validity. Furthermore, the administrative act can be executed, even by force, without the need to seek prior approval by an independent court that makes a judgment on the legal and factual merits of the administrative act. This is the so-called privilege of execution. Even if individual administrative decisions executing a migration policy can be challenged before a court, it is important to note that the decision has immediate effect, producing concrete consequences in the tangible or legal reality. In other words, the administration can simply establish facts on the ground, while awaiting a legal challenge before a court. Importantly, because of the presumption of legality and the privilege of execution, appeals against most types of administrative decisions do not have suspensive effect. Though migration policies may not be effective in terms of stated policy objectives, they are pretty successful in making life difficult for the individuals concerned. This is clearly the picture emerging from the contributions in this volume. The crux is that administrative acts put the ball fully in the court of the individual affected by the administrative decision. Furthermore, depending on the type of act, the harm may be already inflicted and later annulment by a court would simply come too late.

In fact, to the extent that anti-migrant policies aim to make life difficult for unwanted migrants and those helping them, the presumption of legality and privilege of execution are enough for the administration to get the job done. As long as the administration creates legal consequences or establishes facts on the ground without seeking prior approval by courts, it can make life difficult for unwanted migrants. In this respect, it should be noted that in many cases the administration does not even need to execute or enforce the decision since the presumption of legality suffices. For example, the refusal of a permit or social benefit to a migrant becomes immediately effective; the refusal does not require any further execution. The absence of the permit or a social benefit can already put a migrant in extremely precarious conditions. These may directly affect the mental, physical or financial resources to challenge the refusal before the courts. Even if the migrant were to obtain a favourable judgment from a court, much of the harm will already be done. And even if the migrant can effectively benefit from a favourable judgment, the administration was in any event successful in making life extremely difficult for the migrant while the court case was pending. Thus the presumption of legality and the privilege of execution are crucial features of the administrative act and give the administration an advantage over migrants, which it does not have under normal civil and criminal law.

Discretion is probably the most well-known and discussed feature of administrative law. It entails that the administration has the liberty to choose between reasonable policy preferences and options (policy discretion) or reasonable ways to evaluate and establish the facts (factual discretion). The conventional view has it that from discretion necessarily follows judicial deference. Judicial deference means that when reviewing an administrative decision, administrative courts do not make their own judgments of the merits of the case but rely on the decision of the administration. Particularly relevant in daily practice is judicial deference to fact-finding by the administration.²⁵ This means that the court does not establish the facts of the case but ‘only’ checks whether the fact-finding by the administration was reasonable. In other words, the court only establishes the reasonableness of the facts but not their truth.²⁶ Again, this is another feature of administrative law that gives the administration an advantage over citizens, which it does not have under normal criminal law.

The crux of the features of administrative acts is that they confer on authorities sufficient freedom and leeway to take measures that would not be possible under civil and criminal law. Through individual administrative acts, authorities can infringe the rights of people and harm their social and economic interests in ways that would not be possible under normal civil and criminal law. But that does not mean that administrative acts are taken in a legal void; they must be based on (statutory) law and are susceptible to judicial review. These features of the individual administrative act ensure that the actions by the authorities retain a lawlike character granting the authorities what I have called a legality bonus. It is the combination of the freedom to act beyond civil and criminal law and the legality bonus that makes administrative law such a convenient legal infrastructure for anti-migrant measures. As was discussed in Section 14.2 populists may loathe and despise liberal democracy and the rule of law, they still need the benefits of legal legitimacy.

What makes administrative law so convenient is the fact that on paper legal protection is available to migrants but in practice it remains extremely limited. Indeed, the contributions in this volume contain many references to limited judicial protection for migrants. For reasons of space I will concentrate on three topics that are discussed in some of the contributions: alien detention, humanitarian visas and denial of free legal aid for inadmissibility cases.

14.4.1 Alien Detention

A clear picture emerging from the country studies is the widespread use of alien detention.²⁷ Populist and right-wing parties in or outside government promote alien detention in order to fight abuse of the asylum system and illegal stay and to ensure effective return of failed asylum seekers. In addition, though not a lawful purpose, alien detention is used as a securitization measure. This contributes to more repressive and restrictive migration policies. But the country studies also show that alien detention predates the rise of populism and the securitization logic. This raises the question how largescale alien detention has been possible when liberal democratic parties had full control over parliament and the executive. Furthermore, how come the courts have not halted the widespread practice of alien detention? There are probably many factors that play a role here, but I believe that administrative law plays a key role.

To be clear, detention in and of itself is not a characteristic or typical product of administrative law; it is both a pre-trial measure and form of punishment under criminal law. However, detention without prior judicial authorization and not based on reasonable suspicion of a serious offence is highly problematic from a normal criminal law perspective. In the logic of administrative law, however, detention of aliens does not appear awkward and problematic for the following reasons.

Firstly, it is precisely the unique comparative advantage of administrative law that the administration can act without the prior authorization of a court, which explains the acceptability and normalization of detention as an administrative measure in the migration context. The presumption of legality and the privilege of execution warrant immediate factual action by the administration. From an administrative law perspective, the detention of aliens without prior judicial authorization is qua logic no different from any other immediate factual action taken by the administration. The fact that the administration can detain an alien without first seeking approval from a judge means that the procedural ball is put in the court of the alien. If for whatever reason the alien does not lodge an appeal against the detention before a judge, in some Member States it may mean that the alien can be detained for up to four weeks without any judicial check on the legality of the detention (e.g., the Netherlands).

Secondly, from the perspective of administrative law it is much easier to find alien detention proportionate than if one were to adopt a criminal law perspective. In criminal law the proportionality of pre-trial measures and punishment is codified. Criminal law has thresholds that determine when a certain measure or punishment is proportionate. So the period and type of imprisonment are explicitly laid down in laws, and the prosecutor and the judge only have certain bandwidth to propose or determine the proportionality of the punishment in relation to the seriousness of the offence committed. Similarly, even if there is reasonable suspicion and the detention of a suspect would serve the legal objectives of pre-trial detention (e.g., risk of absconding), it would simply not be permitted if the offence was not punishable with an explicitly stated minimal period of imprisonment (e.g., minimal four years in the Netherlands). In other words, in criminal law matters, the legislature has explicitly balanced the various costs and benefits and determined the thresholds of proportionality. Let us further explore how alien detention is considered proportionate under administrative law, while it would be difficult to justify it in terms of criminal law.

In administrative law proportionality is also a fundamental principle laid down in statutory law and/or case law in probably all Member States. However, in the actual practice of the administrative courts in many Member States the proportionality test turns out to be rather superficial. Specifically, in the many areas where there is room for a proportionality test, the administration also has factual and/or policy discretion. It is thus the administration that makes the first assessment of whether a measure is necessary and whether the benefits outweigh the costs for the affected individual. The administrative court can then check whether this assessment of the administration was reasonable. But as we have seen in many jurisdictions and in most areas of administrative law, the administrative courts show deference to the administration when it comes to factual assessments and balancing of interests.

If we were to consider alien detention from a criminal law perspective it would be difficult to find it lawful. Firstly, the administration has an incredibly wide bandwidth for the period of detention (e.g., up to eighteen months in the Netherlands). Administrative law thus grants enormous discretion to the administration. Secondly, in criminal law the maximum term of pre-trial detention is much lower than and in proportion to the minimal time of imprisonment for the offence of which the detainee is suspected (e.g., in the Netherlands: 110 days pre-trial versus minimal 4 years imprisonment). A similar logic is impossible in alien detention because there is simply no offence to be penalized by imprisonment. Paradoxically, precisely because alien detention is not considered a punishment, it eludes a meaningful proportionality test.²⁸

If the situation of the detainee is not exceptionally dire in the eyes of the judge, and the detention has a legal basis, the judge reviewing the detention decision only needs to check whether the detention serves the legal objective, for example, effective return. But this is largely a factual assessment of future events: namely risk of absconding and likelihood of expulsion. Under administrative law, these are matters in which the administration has large factual discretion (because of its alleged expertise). Consequently, in most jurisdictions the administrative court is likely to defer to the assessment of the administration. The court will limit itself to checking the reasonableness of the assessment by the administration. By way of hypothetical comparison, in the context of pre-trial detention a criminal court makes its own assessment of the risk of absconding and the risk for public order; it will not merely check the reasonableness of the State’s decision to detain the suspect.

Against this background, the wide use of detention and the fact that administrative courts have not generally opposed this practice should come as no surprise. My point here is that alien detention is not merely a matter of the failure of human rights when it comes to migrants. I submit it is largely due to the fact that alien detention is a matter of administrative law and that limited judicial protection is a key characteristic of this body of law. It may help explain what many contributors to this volume have observed: the repressive and restrictive migration policies promoted by populist and right-wing parties are simply a continuation of techniques already used by liberal democrats.

14.4.2 Humanitarian Visas

In the previous paragraphs, I explained how the administrative law practice of judicial deference paved the way for wide-scale alien detention. In theory, judicial deference should not take place when it comes to asylum cases. Pursuant to Article 46 (3) of the EU Asylum Procedure Directive asylum decisions should be subject to ‘a full and ex nunc examination of both facts and points of law’. The provision was introduced in order to implement case law of the ECtHR and CJEU to this effect. Many experts of migration law, of course, welcomed this improvement. But it did not raise any questions about administrative law procedures in general. Paradoxically, the Directive confirms the special status of asylum procedures and thereby normalizes the fact that for migration cases, other than asylum and international protection, it is perfectly fine not to have a full examination of the facts. The Directive is an illustration of how the legal community accepts or acquiesces to the fact that under administrative law the default is not to have full examination of facts and points of law by an independent court. Again the default in administrative law is judicial deference. The idea of a default is important because it helps to analyze two developments described in some country reports: politics of humanitarian visas and the abolition of free legal aid for appeals against negative asylum decisions for reasons of inadmissibility.

Desmet and Smet describe the so-called humanitarian visa incident whereby the Federal Government in Belgium refused to execute orders by the courts to issue a short-term humanitarian visa to a Syrian family.²⁹ The Belgian courts held that the migration office failed to state reasons why the family should not get a short-term humanitarian visa immediately. Zirulia reported how under the populists in Italy a special Decree repealed the humanitarian visa and replaced it with an exhaustive list of grounds for humanitarian visas.³⁰ Humanitarian visas are clearly a tool for all sorts of political games. But what makes them so fit for that purpose is the fact that neither the EU Visa Code nor the Asylum Procedure Directive and the ECHR apply to humanitarian visas. As a result, these visa decisions are not subject to a full judicial examination of the facts. In other words, the default regime of judicial deference applies. This is aggravated by the fact that under domestic law, granting humanitarian visas is a matter of administrative discretion par excellence. Also under the Italian mechanism of an exhaustive list of grounds for granting a visa there is wide discretion, because the grounds only permit the administration to grant a visa. It does not require the administration to do so if conditions are satisfied. In this respect, it should be noted that in the Belgian visa case, if the administration had made the effort of stating some plausible reasons for refusing a humanitarian visa, the administrative court would have probably shown deference to the administration’s judgment. In other words, since humanitarian visas are governed by default by administrative law, judicial deference applies and they can remain a tool for hyper political games.

14.4.3 Inadmissible Asylum Applications and Denial of Free Legal Aid

The country studies also show how free legal aid is denied for appeal cases that are expected to be unsuccessful.³¹ The denial of legal aid applies to appeals against decisions whereby the migration office found the asylum application inadmissible because the applicant is a national of a safe third country. Articles 33–38 of the EU Asylum Procedure Directive provide for a mechanism whereby the Member State may designate third countries that are considered safe. Applications from nationals from these countries can be treated as inadmissible after the migration office has examined the application and conducted an interview. The rationale is efficiency. The EU Asylum Procedure Directive also requires Member States to ensure free legal aid for applicants in the stage of appeal against the asylum decision before a court (Art. 20(1)). However, Member States may provide that free legal aid is not granted when the appeal is deemed to have no tangible prospect of success (Art. 20(3)). Appeals against inadmissibility are typically considered to have little chance of success. The practices described in the country studies are thus in compliance with the EU Asylum Procedure Directive.

Indeed, appeals against inadmissibility cases have little chance of success because the burden of proof is put virtually entirely on the applicant. He must show that either his country of nationality is not a safe country, or that there are serious grounds for considering the country not safe in his particular circumstances (Art. 36(1) EU Asylum Procedure Directive). In theory according to the Directive, courts must always conduct a full examination of the facts in asylum cases, including appeals against inadmissibility; and in theory courts are not formally bound by the designation of the safe third country but it is clear that in practice courts tend to defer to the expertise of the administration. However, precisely in situations where a court tends to be extremely deferential, applicants need professional legal aid to build the strongest case possible.

Denying legal aid in cases when it is most needed is a clear limitation of effective judicial protection. It would not be out of place in an authoritarian regime. However, it is fully sanctioned by the Asylum Procedure Directive and predates populist and right-wing law-making. I believe it can be understood as a product of the logic of administrative law. It is a clear example of the dominance of the central purpose of administrative law, namely effective administration and public policy. Furthermore, contrary to what is the case in most civil and criminal law procedures, representation by a lawyer is not required in the administrative courts in most jurisdictions. Ironically, the reason was to promote access to justice. Administrative law in general and administrative court procedures in particular were supposed to be less technical and formal. It meant that the average citizen could seek justice without the help from an expensive legal counsel. This benign rationale turns out to be very useful in ensuring limited access to justice in migration cases.

14.5 Resilience

The first research question posed by the editors of this volume pertained to the connection between populism, restrictive migration laws and democratic decay. I turned this question around and asked what legal infrastructure makes it legally possible to enact and implement the populist restrictive migration laws that break down the rule of law. My answer is administrative law. This answer largely informs my response to the second research question: what are the possibilities of legal resilience against populist restrictive migration laws? Little, is the short answer. If we do not address some structural features of administrative law from within, there is little legal resilience against restrictive migration policies.

The country studies report seemingly promising instances where restrictive migration laws and individual decisions have been stalled, halted or annulled in the name of the law. Three types of law have been successful in this respect: ECHR, EU and constitutional law. Of course, in some countries constitutional law cannot do the job because the constitutional courts are packed by the populists. Also, the impact of ECtHR and CJEU decisions on unwilling populists ruling in states that are in democratic decay is far from straightforward. Still, the courts and lawyers did what they were supposed to be doing: challenging unlawful state practices.

The question is how to understand these instances of resilience. Is it the beginning of a practice whereby the unlawful features of migration policies will be structurally scrutinized by the ECtHR, CJEU and constitutional courts? Or does it actually reinforce and legitimize the current legal infrastructure by only addressing the migration laws and decisions that actually make it to court and that have the most sloppy legal and factual justifications? I am inclined to adopt the pessimistic position.

When jurists predominantly rely on the three types of law (ECHR, EU and constitutional law) to challenge restrictive migration policies they already concede too much. The reason is that they overlook the structural features of the basic legal infrastructure, the administrative law, that underpin migration law. Let me explain my point with a counter example from criminal law. The country study on Italy contains a great example of legal resilience: the case where the Court of Cassation declares illegal the criminal arrest of a Commander who resisted a public official executing a ban to enter an Italian port.³² The alleged criminal offence committed by the Commander was resisting a public official. Under administrative law, the order by an official is presumed to be lawful, must be obeyed immediately and can be executed by force. However, instead of the administrative law route, the authorities pursued the route of criminal law since they wanted to establish that the Commander committed a criminal offence. However, criminal liability for resisting a public official vanishes, if the administrative order issued by the official conflicts with another legal obligation. The duty to rescue at sea is such a legal obligation. It then follows that the criminal law logic puts aside the administrative law logic of presumption of legality and privilege of execution, at least for the purposes of the criminal law case.³³ The Court of Cassation simply made use of the legal resilience within criminal law. It is a basic feature of criminal law that a conflicting legal obligation may remove criminal liability for violating another criminal provision. This is not a typical human rights law principle but a basic notion of criminal law practice itself. In fact, probably any criminal lawyer regardless of his or her political preferences could tell you why upholding the criminal liability of the Commander is problematic from a criminal law perspective.

Of course, the resilience potential of criminal law is extremely limited when it comes to migration policy. This is not a defect of criminal law, but simply because most migration policies are not matters of criminal law. In fact, authorities – especially those implementing and executing migration policies – have a clear incentive to circumvent criminal law.³⁴

The point of the criminal law example is to show the centrality of legal resilience from within the legal infrastructure. Criminal law clearly has such resilience. But it also means that authorities will only use criminal law to a very limited extent when it comes to migration policies. The dominant legal infrastructure remains administrative law. Ironically, the three types of law (i.e., ECHR, EU and constitutional law), which according to the country studies display the most legal resilience, signal two things. First, administrative law lacks the legal resources of its own to resist restrictive migration policies. Second, the rulings of the ECtHR, CJEU and constitutional courts legitimize this state of affairs. In particular, in the case where the ECtHR, CJEU or the constitutional courts intervened, they found nothing legally wrong with the legal infrastructure underpinning the restrictive migration policies. As a result, there is no legal incentive for administrative courts, practicing jurists and academics to re-examine and challenge the basic features of administrative law.

As a consequence, I cannot help but conclude on a pessimistic note. There are no signs that the legal profession will take up the task to challenge the legal infrastructure of immigration policies from within. So far, the basic features of administrative law in most European jurisdictions have remained unchallenged. Probably the clearest illustration is the widespread practice of alien detention. To date the legal profession has not come up with legal arguments from within administrative law to the effect that the institution of alien detention in itself as we know it, may be unlawful. At best, the legal profession can come up with legal arguments to make the conditions of detention more humane.³⁵ Domestic administrative law in cooperation with the ECtHR produced a sophisticated mechanism enabling long term detention of unwanted persons without a criminal trial while benefiting from an uncontested legality bonus. Though this mechanism was developed under liberal democracies and predates the new wave of populist governments, it constitutes a perfect tool for any authoritarian regime, populist or otherwise.