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In the case law of the European Court of Human Rights (ECtHR) the right of States to control migration is firmly established despite strong indications that the effects of migration control are not racially neutral. In this article we attempt to understand how it is possible that the doctrine of sovereign migration control is not considered to breach the prohibition of racial discrimination. We argue that the ECtHR’s approach to migration and racial discrimination fits a pattern in the historical development of migration law whereby the right to travel, and the power of States to restrict this right, have been consistently defined in such a way as to protect the interests of the predominantly white population of today's global North. Hence, the ease with which the racialised impact of migration control is accepted as normal and compatible with the prohibition of racial discrimination is consistent with migration law's long history as part of colonial and postcolonial relations.

In response to the 2015 migration ‘crisis’, the European Union intensified the externalisation of its migration policies, in particular through the EU Trust Funds for Syria and Africa, and the Facility for Refugees in Turkey. The legal construction of these financial measures is such that in many projects, normal implementation and public procurement procedures are not applied. This creates opportunities for clientelism. A limited number of actors (Europe’s ‘clients’) has emerged to implement European policies in third countries. This way of implementing externalisation projects will first be analysed in functionalist terms and in terms of path dependency. The paper will conclude by arguing that, in addition to such analyses, this way of implementing externalisation is to be understood as (a) expanding the scope of legitimate action of European states outside their territory; and (b) setting norms for international actors such as non-European states, international organisations and corporations.

Grootse maar weinig veelbelovende plannen voor de herziening van het Europees asielrecht, etnisch profileren door de Marechaussee, een langzaam in het asielrecht tot ontploffing komende bom over de herhaalde aanvragen in asielprocedures, en een scherpe uitspraak van het Hof van Justitie over gebrekkige terugkeerbesluiten voor onbegeleide kinderen. En natuurlijk nogal treurigstemmende berichten over de situatie aan de buitengrenzen van Europa. Bovendien een aantal pikante prejudiciële vragen die van grote invloed kunnen zijn op het Nederlandse beleid, zoals die over het openbare ordebeleid ten aanzien van ‘criminele vreemdelingen’ of over de ambtshalve toetsing van de voorwaarden van de bewaringsmaatregel. Maar ook de nodige voorbeelden van ‘tijdspolitiek’ in het migratierecht, zoals een zaak over een achttien jaar durende tijdelijke verblijfsvergunning voor ouders van een Unieburger of het steeds permanentere karakter van de herinvoering van de binnengrenzen.

While European politicians and policy makers have attempted to limit migration in the first two decades of the twenty-first century, international air traffic on European airports has almost doubled between 2002 and 2017. This contribution argues that, despite this significant increase of international mobility, clear borders separate the mobile from the immobile. Among the most significant instruments to limit access to the international air traffic market is the pre-boarding check, executed by (private) airline companies, which have effectively become an extension of state sovereignty. Moreover, visa criteria play a vital role in providing access to international air traffic. In practice, the ‘liberalization’ of air traffic tends to separate the mobile from the immobile on wealth-based and racial criteria, defended in reference to a theoretically free (but in practice strongly regulated) market. Image: Eric Fischl: A Visit To / A Visit From / Te Island (1983). © 2020. Digital image Whitney Museum of American Art / Licensed by Scala

Since the end of the Cold War, migration law and policy of the global North has been characterised by externalisation, privatisation and securitisation. These developments have been conceptualised as denying access to migrants and as politics of non-entrée. This article proposes to broaden the analysis, and to analyse unwanted migration as merely one form of international human mobility by relying on the concept of the global mobility infrastructure. The global mobility infrastructure consists of the physical structures, services and laws that enable some people to move across the globe with high speed, low risk, and at low cost. People who have no access to it travel slowly, with high risk and at high cost. Within the global mobility infrastructure, travellers benefit from advanced forms of international law. For the excluded, international law reflects and embodies their exclusion before, during and after their travel to the global North. Exclusion is based on nationality, race, class and gender. The notion of the global mobility infrastructure allows for questioning the way in which international law reproduces these forms of stratification.

Asylum law functions through a dichotomy between an idealized notion of Europe as a site characterized by human rights, and non-European countries as sites of oppression. In most social sciences and humanities literature, this dichotomy is seen as legitimizing European dominance and exclusion of non-Europeans. However, it is the same dichotomy which is used by asylum seekers to claim inclusion through the grant of asylum. Focusing on the inclusive potential of this exclusive dichotomy allows us to explore the ambiguities inherent in the dichotomy. In asylum claims based on persecution on account of gender and sexuality, it becomes evident that not all human rights are considered equally fundamental. In many cases, asylum seekers are required to renounce human rights in order to prevent persecution, for example by complying with patriarchal family norms. Even where this requirement is rejected, asylum law illustrates the ambiguous relation between Europe and human rights.

Grootse maar weinig veelbelovende plannen voor de herziening van het Europees asielrecht, etnisch profileren door de Marechaussee, een langzaam in het asielrecht tot ontploffing komende bom over de herhaalde aanvragen in asielprocedures, en een scherpe uitspraak van het Hof van Justitie over gebrekkige terugkeerbesluiten voor onbegeleide kinderen. En natuurlijk nogal treurigstemmende berichten over de situatie aan de buitengrenzen van Europa. Bovendien een aantal pikante prejudiciële vragen die van grote invloed kunnen zijn op het Nederlandse beleid, zoals die over het openbare ordebeleid ten aanzien van ‘criminele vreemdelingen’ of over de ambtshalve toetsing van de voorwaarden van de bewaringsmaatregel. Maar ook de nodige voorbeelden van ‘tijdspolitiek’ in het migratierecht, zoals een zaak over een achttien jaar durende tijdelijke verblijfsvergunning voor ouders van een Unieburger of het steeds permanentere karakter van de herinvoering van de binnengrenzen.

This paper undertakes to investigate parallels between evictions of irregularized persons in Apartheid South Africa and contemporary Europe. In both cases, people were denied the right to a home (or at least: to the home they were occupying at that moment) because they were considered to be illegal aliens. But how did this situation come about? How did these people become illegal aliens? And while it seems obvious that illegal aliens can be deported from the territory, how did their alien status come to justify the destruction of their homes? Pursuing the association means we will not only identify similarities, but also try to establish where the association meets it limits. The aim of pursuing a visual association across time and space is not primarily to draw exact parallels. In contemporary Europe, the use of violence of a “white” state in order to destroy the housing of “non-whites” is accepted as a normal element in the regulation of “non-white” populations. The association with Apartheid seeks to problematize this normality by pointing to the uneasy pedigree of such practices.

Border deaths are a result of dynamics involving diverse actors, and can be interpreted and represented in various ways. Critical voices from civil society (including academia) hold states responsible for making safe journeys impossible for large parts of the world population. Meanwhile, policy-makers argue that border deaths demonstrate the need for restrictive border policies. Statistics are widely (mis)used to support different readings of border deaths. However, the way data is collected, analysed, and disseminated remains largely unquestioned. Similarly, little is known about how bodies are treated, and about the different ways in which the dead - also including the missing and the unidentified - are mourned by familiars and strangers. New concepts and perspectives contribute to highlighting the political nature of border deaths and finding ways to move forward. The chapters of this collection, co-authored by researchers and practitioners, provide the first interdisciplinary overview of this contested field.

In the past 25 years, European migration policy has been externalized, resulting in a bifurcation of human movement. This has become clearly visible in the context of Syrian refugees. In two judgments, the EU Court of Justice was confronted with cases challenging the exclusion of Syrian refugees from Europe. This article seeks to analyse these judgments in the context of the broader developments in European migration law and policy. The core analysis developed here is that the bifurcation of human movement is reflected in a bifurcation of law. Excluded people are to be excluded not merely from European territory, but also from European law.

Irregular migrants and asylum seekers have died and continue to die attempting to cross the external borders of the EU without authorisation, seeking to enter the territories of its Member States. Yet, remarkably little is known about these ‘border deaths’. In 2015, the Human Costs of Border Control project published the Deaths at the Borders Database for the Southern EU, an open-source ‘evidence base’ of individualised information about people who have died border deaths between 1990 and 2013, sourced from the death management systems of Spain, Gibraltar, Italy, Malta and Greece. It is the first database on border deaths in the EU to be based on official sources as opposed to the news media. The project involved searching 563 state-run death registry archives and deductively selecting the death certificates of persons who died border deaths. This paper describes, in detail, the making of the Deaths at the Borders Database: from the systematic, multi-sited, quantitative data collection and qualitative case studies, to the construction and final results of the Database itself.

This is the first comprehensive socio-legal study of the interrelation between gender and the law of refugee status. In the past decade, the issue has received increasing attention in academic writing, the media and the courtroom. This book contains an interdisciplinary analysis. The empirical data, collected for this study and not published previously, concerns Dutch asylum practice. The Netherlands is a prominent refugee-receiving country in Europe, yet hardly any English texts address Dutch refugee law. The book also covers foreign case law and academic writing. Therefore, the analysis is relevant for all refugee-receiving countries in the Western world; the empirical data on The Netherlands functions as a case study. The book combines perspectives of post-structuralist feminism and post-colonial studies. Refugee women are constructed as a double other. This intersectionality is related to the construction of the Third World as feminine (passive, in need of active outside intervention etc., etc.). The book provides a comprehensive overview of academic writing and of case law on the subject. On this basis of theoretical perspectives that were almost ignored until now, it develops an innovative critique of refugee law discourse and outlines its possible consequences for legal doctrine.

Carrier sanctions, by which transport companies are penalised if they do not refuse embarkation to undocumented persons, play a role in perpetuating harms (denial of refugee protection; death) against migrants. They do so because transport companies are obliged to, by legislation of destination states inEurope, North America and Australia. The potential accountability and responsibility of carriers for these harms has not been addressed in literature on human rights law. This article fills this gap through the application of Iris Young’s social connection model to address the contemporary harms of carrier sanctions. We propose that, faced with conflicting legal obligations, carriers have moral and legal obligations to remedy, through strategic actions, the harms to which they contribute. We outline a number of possible practices that carriers can use to do so.

April liet een spectaculaire daling zien van het aantal Syriërs dat in Nederland asiel vroeg: 101 tegen meer dan 5000 in oktober vorig jaar. Het lijkt erop dat de dichte grenzen in de Balkanlanden en het akkoord met Turkije over de terugname van asielzoekers de komst van Syrische vluchtelingen sterk hebben afgeremd. Is de vluchtelingen‘crisis’ opgelost? Allerminst: de deal met Turkije is kwetsbaar en bovendien juridisch kwestieus. Belangrijker is dat het Europese asielbeleid heeft aangetoond slecht te functioneren. Het is nu vooral zaak de gemeenschappelijke asielregels crisisbestendig te maken. Daarvoor lijkt echter de politieke steun te ontbreken.

The European Court of Human Rights' case law on judicial review in asylum cases is not entirely consistent. However, it can be interpreted as consistent if two presumptions are accepted. First, that, as the Court's role should be subsidiary to that of domestic courts, domestic judicial review should at least be of the same quality and substance as the European Court of Human Rights' review. Secondly, that the Court distinguishes between arguable and non-arguable cases not just in the context of Article 13 ECHR and of the admissibility of applications, but that this distinction is central to its entire case law about the asylum procedure. This analysis results in a coherent doctrine on deadlines for submitting evidence, the burden of proof, the intensity of judicial review, and suspensive effect. If the Court understands its case law in this way, it can prevent it from becoming, in some respects, a court of first instance. © The Author (2009). Published by Oxford University Press. All rights reserved.

In this article, the case law of the European Court of Human Rights on children's family reunion is examined. The argument is that the Court's case law is necessarily inconsistent. This is so in part as a consequence of the structure of international legal argument, and partly as a consequence of the seeming normative conflict about the legitimacy of migration control. On both points, the Court is torn between two equally legitimate and equally untenable extremes, which forces the Court to take a centrist position and to acknowledge both the legitimacy and the untenable nature of any position. The main part of the article analyses how this takes shape in the legal technicalities in the judgements under review.

In this paper, we address three connected central issues in refugee law. Firstly, who is entitled to protection? Secondly, what should that protection entail – merely allowing the presence of refugees in the territory, or allowing access to the labour market and health and welfare systems? Thirdly, where should refugees receive protection – in the first country in which they arrive after fleeing their home country, or elsewhere? We analyze the current crisis of European refugee law by looking back at the drafting history of the 1951 Refugee Convention. European policy makers can learn from the way in which the drafters partially solved these issues in 1950/1951.

This article outlines the relationship between irregular immigration, increased border control, and the number of casualties at Europe's maritime borders. The conclusion is that the number of fatalities is increasing as a result of increased border control. The author argues that States have a positive obligation under international law to address this issue, and formulates concrete proposals to monitor the number of border deaths. © 2007 Martinus Nijhoff Publishers.

States are obliged to protect the right to life by law. This article analyses the way inwhich states do this in the field of aviation law, maritime law and the law on migrantsmuggling. A comparative description of these fields shows that states differentiate inprotecting the right to life. Regular travellers benefit from extensive positive obligationsto safeguard their right to life, whereas the lives of irregularised travellers areprotected first and foremost by combating irregularised migration and, if the worstcomes to pass, by search and rescue. The right of states to exclude aliens from theirterritories leads to exclusion of irregularised travellers from their main positive obligationsunder the right to life. This situation is analysed through Zygmunt Bauman’snotion of ‘wasted lives’. The contrast with aviation and maritime law makes clear thatthis situation is the outcome of human choice, which can be changed.

In this lecture, I take stock of what the gender and sexuality based critiques of refugee law formulated over the past decades have achieved. I first address statistical issues. Then I address the question how law is being applied today, now the gender and sexuality critiques of refugee law have been incorporated in legal practice. I focus on the case of A.A. and others v Sweden about forced marriage, and on discretion reasoning in sexual orientation cases. Having done that, I will try to understand this reformulated refugee law by using the concept of sexual nationalism.

1. Fleeing Homophobia. Asylum claims related to sexual orientation and gender identity in Europe, Sabine Jansen 2. Sexual Orientation and Refugee Status Determination over the Past 20 Years: Unsteady Progress through Standard Sequences?, Jenni Millbank 3. "Discretion" in sexuality-based asylum cases: An adaptive phenomenon, Janna Wessels 4. Accommodation: Sur place claims and the accommodation requirement, Hemme Battjes 5. Lesbian, Gay, Bisexual and Transgender Refugees: Challenges in Refugee Status Determination and Living Conditions in Turkey, Giulia Cragnolini 6. Developing a Jurisprudence of Transgender Particular Socail Group, Laurie Berg and Jenni Millbank 7. Normativity and Credibility of Sexual Orientation in Assylum Decision Making, Louis Middelkoop 8. Invisible Intersections: Queer Interventions and Same Sex Family Reunification under the Rule of Assylum Law, Petra Sussner 9. Overcoming Problems with Sexual Minority Refugee Claims: Is LGBT Cultural Competency Training the Solution?, Nicole La Violette 10. Sexuality, normativity and asylum: An agenda, Thomas Spijkerboer

This article begins to undertake a human rights analysis of the increasing number of migrants who die annually while trying to cross the borders of Europe in an irregular manner. Over the past 20 years, border policies increasingly focus on (pro-active, extraterritorial, privatized, and securitized) border management instead of on classical (reactive, territorial, and public) border control. On the basis of existing data, it seems plausible to assume that the increasing migrant mortality is an unintended side-effect of this shift from control to management. The article argues that it is possible to collect data, which are more reliable than those presently available, and presents data from a pilot project carried out on Sicily in November 2011. Presuming better data can be collected; two diverging human rights approaches are developed – a conventional approach holding that European states are not accountable under human rights law for these side-effects and a functional approach holding that human rights law does impose obligations on European states in this context. On all four doctrinal issues which are relevant to the problem (jurisdiction, positive obligations, standing, and collective state responsibility), these diverging approaches lead to diverging doctrinal positions. A choice between the two approaches implies not only legal but also moral, ethical, and political choices.

This article looks at the number of migrants who die while trying to reach Europe. It includes a methodological paragraph on how more precise data about this phenomenon can be collected; this paragraph is based on field work on Southern Sicily in November 2011. Furthermore, it analyses how a mainstream approach to human rights would assess the phenomenon, and explores in which ways human rights analysis would have to be amended in order to make the human rights normative framework relevant for border deaths.

The expulsion of the single minor Francine Nsona from the Netherlands to Zaire was deemed not te be in violation of Article 3 ECHR, while the expulsion of the equally single minor Kaniki Mitunga from Belgium to what in the meanwhile had become Congo was held to be contrary to Article 3 ECHR. This paper analyses the argumentative manoeuvres deployed by the European Court of Human Rights to apply the same norm to similar situations with divergent outcomes.

About the book: This book examines immigration law from a gender perspective. It shows how immigration law situates gender conflicts outside the national order, projecting them onto non-western countries, exotic cultures, clandestine labour and criminal organizations. In doing so, immigration law sustains the illusion that gender conflicts have moved beyond the pale of European experience. In fact, the classical feminist themes of patriarchy, the gendered division of labour and sexual violence are still being played out at the heart of Europe's societies, involving both citizens and migrants. This collection of essays demonstrates how the seemingly marginal perspective of immigration law highlights Europe's unresolved gender conflicts and how a gender perspective can help us to rethink immigration law.

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