WP3 – family trajectories and legal migration: a socio-legal analysis (EDEM)
The socio- legal analysis rests on a study of the relationship between legal norms and migrants through a top-down approach: from the norms to the migrants.
Method : analysis of the legal system (both in its substantial and procedural elements) with the legal analytical approach, which consists in studying legal texts as well as their jurisprudential and doctrinal interpretation.
- The role and the impact of the reference to national sovereignty by law, jurisprudence the doctrine
The relationship between legal norms and migrants is grounded on the sovereignty theory and its impact on the norms and the level of judicial control. We will confront this classical theory and its components (namely the guest theory, the contractual theory, the plenary power theory and the guest-contractual-participation theory) with the current legal framework in the migratory context. This analysis will be done through legal texts, case-law and literature – at both European (EU and Council of Europe) and domestic level – but also through policy texts.
The analysis will take into account the phenomenon of hyper normativity, which is not specific to the migratory context but particularly affects migrants because they lack strong political power.
The limits that human rights theories impose to sovereignty will be analysed. More profoundly we will assess whether human rights only act as barriers to sovereignty or if they justify a paradigm shift. Therefore the impact of human rights, both substantial and procedural rights but also of the principles of equality and non- discrimination, on migration law will be explored through the case-law, with a focus on rights linked to personal autonomy: respect for private life, including social ties, and family life; economic rights; equality and non-discrimination. This process will lead to a legal definition of the notion of autonomy.
- Relationship between legal norms and migrant in substantive law: EU and Belgium
The legal provisions will be assessed through the lens of the research objective, namely whether they deprive migrants of their decisional autonomy or whether they enhance migrants’ ability to act as agents of their life projects. This assessment will be undertaken for the EU legal framework and then for the Belgian legal framework, while taking into account the case-law of the ECtHR.
2.1. The study of the legal framework
EU law has a strong influence on the domestic legal framework. Since the Treaty of Rome in 1950, successive treaty amendments have enlarged the competence of the European Communities (EC), now the EU, in issues affecting asylum and migration. The Treaties of Amsterdam, Nice and of Lisbon have conferred new competences to the EU in the field of borders, immigration and asylum, including visas and returns. The ongoing evolution of the EU asylum acquis and the growing case-law of the Court of Justice of the EU must also be taken into account. Several legal instruments have been adopted, on both substantial and procedural issues. They are legally binding for the EU member states; regulations are of direct application and directives must be transposed within domestic law in order to be implemented.
We will critically assess the EU and national laws on visas, borders, migration and asylum since 1999, year after which the EU gradually gained competences in the area of irregular migration, legal migration and asylum. We will retrace the development of EU competences and concomitant legislation that was adopted in order to fulfil them. We will then examine national Belgian legislation in the same 15 year period. Large parts of this legislation transpose EU rules. However, other parts regulate areas of the immigration and asylum policy that have not yet been harmonised and therefore remain in the exclusive competence of Member States.
This part of the research will be divided in four periods which correlate with significant legislative changes in the EU legal framework that then impacted the national level. The first period, 1999-2004, covers the legislative measures that were adopted as a direct result of the entry into force of the Treaty of Amsterdam when the EU gained, for the first time, certain competences in the areas of migration and asylum. The second period, 2004-2009, correlates with legislative changes which saw the further acquisition by the EU of competences while, at the same time, EU legal rules began to be transposed and implemented at Belgian level. Legislative measures in these first two periods were mainly focused in the areas of asylum and combatting irregular migration. The third period, 2009-2014, covers the legal developments that were brought about by the entry into force of the Treaty of Lisbon. This period is characterised by the development of a number of measures at EU level on legal migration. The final period is that of 2014-2019. Given the dynamic character of legal and policy developments in this area of law, the study of both legislative and policy developments as well as of national and supra-national jurisprudence, will be ongoing for the duration of the project.
Under Belgian law, the Aliens Act of 15 of December 1980 is the basic Belgian statute that governs migration issues. It has been amended more than thirty times since its adoption, namely to implement the EU acquis. The amendments concerned not only substantive rules pertaining to the legal categories of migrants but also the procedures. The Council of Aliens’ Law Litigation and the Council of State are the main jurisdictions entrusted with the judicial control of the administrations applying the Aliens Act, namely the Alien’s Office and the Commissioner General for Refugees and Stateless persons. The Constitutional Court has also been called upon to control the conformity of the various reforms with the Belgian Constitution. However, civil judicial instances are also involved in what concerns the legislation which regulates the access of migrants to social rights.
The ECtHR case-law is composed of tens of decisions bearing an impact not only on the content of migrants’ substantial rights and the scope of these rights (i.e. protection against torture and inhuman and degrading treatment in case of removal; right to family life in case of family reunification; right to private life when social ties are jeopardised by a negative decision), but also on the procedural guarantees that migrants can invoke (right to an effective remedy). The analysis will be concentrated on the last 15 years since most of the relevant decisions were taken during this period of time or confirm previous ones.
2.2. The study of the articulation of the different statuses of migrants consecrated by the legal framework
We will analyse the articulation of the different legal statuses. We will examine the rigidness or flexibility to move between these distinct legal categories. We will comment on the so-called ‘legal grey zones’ which could lead migrants to irregularity and will test to what extent such gaps are filled by national legislation. For each of these categories the research will focus on the regulation of family life, and namely family formation and family reunification, of access to the labour market and of access to studies. Particular attention will be paid to procedural guarantees afforded to migrants, including whether the possibility exists for the migrant to be heard or not by the national authorities, either at the initial decision-making phase or at appeal.
The legal norms will be analysed with the view of identifying the impact of the sovereignty paradigm on substantive law. We will therefore track in domestic and EU substantive law the expressions of sovereignty that complicate the administrative route of the migrant and question whether they are imposed merely to sustain sovereignty, without any rational justification and without a proper analysis of proportionality as well as question what is the margin of appreciation that is left to the State. This will also inform our analysis of the legal expressions of the two-tier conception: chosen or forced immigration, the migrant ‘victim’ or the migrant ‘actor’.
On this issue, questionnaires will be sent to administrations and authorities in charge of migration to know what are the methods and applicable criteria for reaching individual decisions. Meetings and interviews will take place with civil servants from the Alien’s Office, as well as with lawyers and relevant civil society organizations. On this subject, EDEM will be able to rely on the network of relations developed within the framework of its other projects, in particular the FER project. The collaboration it initiated with judges, administrative bodies and practitioners has created useful contacts and has helped us collect up-to- date data.
More specifically, we will identify ‘closed’ or ‘open’ categories of migrants, the possibilities of changing status, the conditions to obtain or to lose a status but also the level of security of the legal system: accessibility and consistency of the legal framework; foreseeability; transparency; possibilities of planning.
The procedural position of the migrant must also be studied since it impacts her possibilities to be an actor through the procedures such as: right to be heard, legal aid, unilateral or contradictory procedures, organisation of the deadlines, scope of judicial power (marginal control of legality or full control including expediency and proportionality, suspensive effect of the appeal).
The results will then be confronted against the data that will be collected on the actual administrative routes migrants employed and their original aspirations.
- Relationship between legal norms and migrants in substantive law : comparative approach in a number of EU countries and North America
Since one of the objectives is to formulate proposals on how to further develop the EU and national legal systems, we will also collect and assess information about other legal frameworks.
We will not proceed to a detailed analysis of other legal frameworks, but rather track the different approaches which other countries of immigration with systems that are relatively similar have adopted. Therefore, key elements, such as the determination of categories of migrants, the possibilities to change between categories, the organisation of the administration and/or judicial control, the right to be heard will be analysed. The aim is to ascertain to what extent they result or not in more flexible systems which are able to take into account the personal aspirations of the migrants.
The analysis will thus be complemented by a comparative study of the migration management systems of Canada, the US, Sweden, Spain, Poland and the UK. EU Member States have been selected the view of representing different geographical areas and legal traditions of the EU. The study will focus on the extent that these Member States have made use of the possibility provided by EU law to adopt “more favourable provisions”, and thus develop a distinct approach at certain points in migration management. The study of these national legal systems can potentially provide ‘food for thought’ for amendments to the current EU and legal frameworks. Canada and the US have developed systems which favour and facilitate legal migration. At the same time, their asylum policies are, in broad terms, more closely aligned with that of the EU. The study of these legal systems could provide original ideas for long-term reforms in EU’s migration management system.
In order to enhance our knowledge of these legal systems we will make use of the contacts of the Odysseus academic network, which EDEM is a longstanding member of, and also personal academic contacts in Canada and in the USA. Questionnaires will also be sent to academic and other counterparts in selected EU Member States. The place left to migrants’ autonomy through this legal framework will be analysed. After the analysis of the concrete impacts of sovereignty on the legal framework, we will identify the rights of migrants to apply for a status, to contest a decision, to change of categories. This will be studied on an objective basis, with a focus on the legal norms.
At this stage of the research, a purely legal approach does not suffice. Information on the strategies developed by migrants who adapt themselves to the legal framework is much needed. For that reason, the project combines the analytical legal approach with the one developed by other disciplines. This will allow us to confront the findings resulting from the study of the legal framework with reality; namely with how migrants develop life plans within the existing legal framework.
The relationship between migrants and legal norms will be undertaken through an analysis of quantitative data contained in existing databases (WP4, led by DEMO), through a survey (WP5, led by DEMO) and through an analysis of in-depth qualitative, sociological case studies with migrants (WP6, led by CIRFASE).
– Jean-Baptiste Farcy, EDEM
– Christine Flamand, EDEM
– Prof. Sylvie Sarolea