From the 2015 European “Migration Crisis” to the 2018 Global Compact for Migration: A Political Transition Short on Legal Standards

The “European migration crisis” is the culmination of a series of failed attempts to elaborate a comprehensive European immigration policy beyond repression of undocumented migrants and border closures. This article will outline the causes of the “crisis” and the general resistance of courts to the repressive impulse of European executives, as well as suggest that the 2018 United Nations Global Compact on Migration offers a conceptual framework that indicates a “way forward” for All States, including EU member States. The first part will highlight that the “crisis” was foreseeable as soon as 2012 and that EU member States failed in all their attempts to create a common response to it. Instead, they resorted to the crudest mechanisms possible: border closures and mechanisms obstructing the mobility of migrants, including a questionable cooperation with Libyan “authorities” and the transfer of development funds to migration control cooperation with African countries, regardless of consequences. These measures do not respond to push and pull factors of migration and mostly exacerbate the precarity of migrants. Within the EU, one witnessed the progressive marginalisation of the European Commission –which had, in the previous period, overseen the recast of most of the Schengen instruments –in favour of a political control of the immigration file by the European Council. The second part will show that the migration-related case law of the ECJ has followed two contrasting paths. On the one hand, the Court has confirmed the necessity of interpreting the law in a manner that is consistent with European and international law, in particular with respect to the protection of the fundamental rights of individuals (A). This tendency is reflected in the interpretation of what could be called the “internal” management of migration, in other words, management within the Union, between Member States. On the other hand, the Court, either through its silence or self-restraint, leaves much authority and discretion to the States (B). Beyond the classic margin of appreciation and interpretation, it is a whole segment of “external” migration policy, pertaining to questions that arise outside of the territory of the EU or in their relations with third countries, which has been abandoned to national sovereign authorities. The third part will demonstrate that a conceptual framework for a change in attitude has recently been provided by the Global Compact for Safe, Orderly and Regula