Between "Administrative Mindset" and "Constitutional Imagination": The Role of the Court of Justice in Immigration, Asylum and Border Control Policy

Between “Administrative Mindset” and “Constitutional Imagination”: The Role of the Court of Justice in Immigration, Asylum and Border Control Policy by Daniel Thym Reprinted from European Law Review Issue 2 2019 Sweet & Maxwell 5 Canada Square Canary Wharf London E14 5AQ (Law Publishers) Between “Administrative Mindset” and “Constitutional Imagination”: The Role of the Court of Justice in Immigration, Asylum and Border Control Policy Daniel Thym * University of Konstanz Constitutionality; European Court of Justice; Human rights; Immigration policy; Judicial decision-making Abstract The Court of Justice is a central actor. It is the subject of many studies, most of which concentrate on the internal market or citizenship. By contrast, the role of judges in migration law is rarely discussed, although the policy field is politically contested and features prominently in recent case law. That is why this contribution takes a bird’s eye view of the role of the ECJ in that domain. It critically assesses a concern about “judicial passivism” among academic observers and demonstrates that there are good constitutional reasons why judges act carefully in migratory matters. Closer inspection of several dozen prominent judgments on migration shows that most of them are defined by an “administrative mindset”: they focus on statutory interpretation and seek to realise the position of the legislature. Any move towards a more ambitious “constitutional imagination” would require feedback loops between legal developments, political processes and broader societal debates. Introduction—beyond judicial activism Experts of EU law have been told ever since their first semesters at university that the Court in Luxembourg is an important player. It takes centre stage in famous descriptions of the European project, such as Joseph Weiler’s “The Transformation of Europe”.1 The EU as we know it today is, partly at least, a creation of judges in Luxembourg—and the internal market is the prototype of rule-based integration by means of innovative court rulings, legislative harmonisation and the emergence of an epistemic community of legal academics and practitioners.2 Not surprisingly, such dynamism met with criticism, castigating the Court for “judicial activism”,3 including domestic courts reminding judges in Luxembourg not to overstep their mandate.4 Corresponding debates mostly concerned the constitutional foundations of the supranational legal order, such as direct effect or the scope of the Charter, as well as classic areas of Union activity, including free movement. By contrast, migration law towards third-country nationals within the area of * Professor of European and International Law and Director of the Research Centre Immigration & Asylum Law. J.H.H. Weiler, “The Transformation of Europe” (1990/91) 100 Yale L.J. 2403. 2 Recent historical studies highlighted the epistemic infrastructure of EU integration; see A. Vauchez and B. de Witte (eds), Lawyering Europe: European Law as a Transnational Social Field (Oxford: Hart Publishing, 2013). 3 See the contributions to M. Adams et al. (eds), Judging Europe’s Judges (Oxford: Hart Publishing, 2013). 4 For a rich comparative study see M. Wendel, Permeabilität im europäischen Verfassungsrecht (Tübingen: Mohr Siebeck, 2012). 1 (2019) 44 E.L. Rev. April © 2019 Thomson Reuters and Contributors 139 140 European Law Review freedom, security and justice is often ignored by mainstream analyses, although it dominates the political agenda and defines the judicial function.5 This contribution fills the lacuna by concentrating on the role of the Court of Justice in migration, asylum and border controls. Academic observers had predicted early on that the Court would replicate the dynamism of the internal market case law in migratory matters, thereby promoting the rights of migrants and refugees in a similar way as it advanced the legal status of Union citizens crossing intra-European borders.6 It was expected that the regularisation of decision-making procedures under the former “third pillar” would result in policy change, including as a result of court rulings.7 Indeed, the supranational judiciary had an impact on migration policy and continues to deliver important judgments, including many enhancing individual rights of migrants vis-à-vis domestic authorities. General principles of Union law and the Charter of Fundamental Rights often underlie such transformative court rulings.8 Notwithstanding these developments, the overall picture is more nuanced. There is a noticeable trend in the case law towards treading carefully by deferring to the position of the EU legislature or by granting discretion to the Member States.9 Several prominent rulings on legal aspects of the ongoing crisis of the Common European Asylum System reinforced the impression of judicial restraint, including Jafari on the Dublin system,10X & X11 on humanitarian visas or NF v European Council12 on the EU–Turkey Statement. Academic observers now conclude that judges deconstruct the commitment to human rights and refugee law13 and that the overall picture can be described as a move towards “judicial passivism”.14 Such a sense of disappointment is the mirror image of the previous expectation that judges in Luxembourg would replicate the dynamism of the internal market and free movement case law in migratory matters, thereby synchronising the legal status of third-country nationals and Union citizens. Judges are nowadays perceived of as opting for a formalistic and restrictive interpretation in response to political pressure.15 While I accept that we can observe a move towards passivism and formalism during the ongoing asylum policy crisis, this contribution reconstructs the position of the Court in a different manner. The essence of my argument will be that there are good reasons why the Court proceeds carefully in migratory matters besides the generic hypothesis of judges bowing to political pressure. 5 In 2017, 17 ECJ press releases out of a total of 146 concerned the residence status of third-country nationals (excluding “pure” free movement cases not involving third-country nationals); during 2018 the ratio was 21/205. 6 By way of example A. Wiesbrock, “Granting Citizenship-Related Rights to Third-Country Nationals” (2012) 14 E.J.M.L. 63, 76–87; S. Carrera, In Search of the Perfect Citizen? (Leiden: Martinus Nijhoff, 2009), Ch.7; and M. Nettesheim, “Grundrechtskonzeption des EuGH im Raum der Freiheit, der Sicherheit und des Rechts” (2009) Europarecht 24, 25–26. 7 Institutional change came full circle with the Lisbon Treaty in 2009; see S. Peers, “Mission Accomplished?” (2011) 48 C.M.L. Rev. 661, 681–685. 8 See the overview by K. Groenendijk, “Recent Developments in EU Law on Migration” (2014) 16 E.J.M.L. 313, 329–334; and D. Acosta Arcarazo and A. Geddes, “The Development, Application and Implications of an EU Rule of Law in the Area of Migration Policy” (2013) 51 J.C.M.S. 179. 9 See the analyses by J.-Y. Carlier and L. Lebœuf, “Droit européen des migrations” (2015) Journal de droit européen 95, 111; as well as C. Murphy and D. Acosta Arcarazo, “Rethinking Europe’s Freedom, Security and Justice” in C. Murphy and D. Acosta Arcarazo (eds), EU Security and Justice Law (Oxford: Hart Publishing, 2014), p.1 at pp.8–15. 10 Proceedings brought by Jafari (C-646/16) EU:C:2017:586; [2018] 1 W.L.R. 773. 11 X & X v État belge (C-638/16 PPU) EU:C:2017:173; [2017] 4 W.L.R. 89. 12 NF v European Council (T-192/16) EU:T:2017:128. 13 See V. Moreno-Lax, “Elgafaji, Qurbani and Beyond: Towards a Hyper-Autonomy of the CEAS” (2019) 56 C.M.L. Rev., forthcoming. 14 I. Goldner Lang, “Towards ‘Judicial Passivism’ in EU Migration and Asylum Law?”, EU Immigration and Asylum Law Blog (24 January 2018), http://eumigrationlawblog.eu/towards-judicial-passivism-in-eu-migration-and-asylum -law-preliminary-thoughts-for-the-final-plenary-session-of-the-2018-odysseus-conference/ [Accessed 1 March 2019]. 15 I have regularly come across that argument at events on the ongoing migration and refugee policy crisis across Europe; it is usually based on the assumption that a different outcome of court cases would be the correct (or more convincing) legal answer in the eyes of the academic beholder. (2019) 44 E.L. Rev. April © 2019 Thomson Reuters and Contributors Role of the ECJ in Immigration, Asylum and Border Control Policy 141 Methodologically, the argument will transcend the doctrinal analysis of individual judgments and consider broader arguments of constitutional law and theory. While it is based on an inspection of all judgments which have been delivered by the ECJ on the legal instruments adopted on the basis of arts 77–79 TFEU,16 this contribution concentrates on the constitutional dimension, when judges review the position of the legislature in light of primary law. This implies that judgments on asylum are discussed prominently in this article,17 since the degree of constitutional prescriptions, including fundamental rights, is more prominent in the field of asylum than in the domains of legal migration or border controls. This contribution recognises such variations within the overall frame of migration law and policy towards third country nationals in the area of freedom, security and justice.18 The constitutional argument will demonstrate, first, that we should be careful not to generalise the vigour of the ECJ regarding the internal market or citizenship, since the legal and institutional framework of migration, asylum and border control policies follows a different script. On that basis, the second part will show that the legal foundations of human rights law, in particular, do not empower the ECJ to correct legislative choices in a similar vein to the fundamental freedoms. Thirdly, the style of reasoning in many judgments may be described as the expression of an “administrative mindset”, with judges trying to maintain the statutory integrity of legislative choices instead of embarking on widespread judicial innovation. Finally, such an outcome was reinforced by the political salience of migratory matters, which complicate the re-emergence of “constitutional imagination” at times of ongoing policy crises. Legal design of justice and home affairs Political scientists often describe courts as semi-autonomous actors that attempt to maximise their power vis-à-vis other institutions.19 If that was correct, the analysis would concentrate on the “court curbing mechanism” through which other actors mitigate the autonomy of judges.20 However, such a focus on judicial autonomy tends to underestimate the procedural and substantive constraints guiding the Court’s decisions. Judges are more than political actors; they decide on the basis of epistemic standards and in accordance with procedural rules.21 They belong, in other words, to a discursive community of legal experts taking seriously the interpretative standards of doctrinal hermeneutics that are held in high regard among judges, professionals and academics, in particular in continental Europe.22 16 For a detailed analysis, see D. Thym, “A Bird’s Eye View on ECJ Judgments on Immigration, Asylum and Border Control Cases”, manuscript (currently under peer review). 17 On the whole, judgment on asylum, including the Dublin Regulation, make up roughly 40 per cent of all cases decided by the ECJ; cf. Thym, “A Bird’s Eye View”, section 2. 18 Primary law, institutional practice and academic research mostly treat asylum, immigration (both legal and illegal) and border controls as subfields of “justice and home affairs” law and policy; see section “A distinct treaty regime for migration law and policy” below; and Thym, “A Bird’s Eye View”, section 3.1. 19 Such an assumption would have to ascertain to what extent enhanced (or lesser) rights for migrants coincide with the ECJ’s institutional self-interest; as described below, both aspects need not overlap. 20 Cf. A. Stone Sweet, “The European Court of Justice” in P. Craig and G. de Búrca (eds), The Evolution of EU Law, 2nd edn (Oxford: Oxford University Press, 2011), p.121. 21 See T. Horsley, “Reflections on the Role of the Court of Justice as the ‘Motor’ of European Integration” (2013) 50 C.M.L. Rev. 931, 941–953; and H. Schepel and R. Wesseling, “The Legal Community” (1997) 3 E.L.J. 165, 169–170. 22 See R. van Gestel and H.-W. Micklitz, “Revitalizing Doctrinal Legal Research in Europe: What about Methodology?”, EUI Working Paper LAW 2011/05, http://cadmus.eui.eu/handle/1814/16825 [Accessed 1 March 2019]; and G. Beck, The Legal Reasoning of the Court of Justice of the EU (Oxford: Hart Publishing, 2012), Chs 6–10. (2019) 44 E.L. Rev. April © 2019 Thomson Reuters and Contributors 142 European Law Review A distinct treaty regime for migration law and policy ECJ case law assumes axiomatically that Union law constitutes an autonomous legal order based on its own institutional structure and legal framework. In that respect, experts on migration should not assume quasi-automatically that dynamic internal market case law would be replicated in the area of freedom, security and justice. They should ascertain, rather, whether or to what extent there are similarities and differences that argue for or against such an outcome. Such a constitutional analysis should consider the provisions of primary law, which judges convey as the “constitutional charter”23 of the supranational legal order. While the interaction with internal market law had remained ambiguous for many years,24 the Lisbon Treaty reinforced the autonomy of migration, asylum and border controls as a policy field in its own right independent of the single market. We may better understand the behaviour of the ECJ when we contrast Treaty rules on migration with those on the single market. In the single market, cross-border movements are to be facilitated in line with the overall objective of an area “without”25 internal frontiers. In legal terms, the fundamental freedoms endow individuals with a directly applicable constitutional guarantee to enforce the Treaty regime via national courts. The introduction of Union citizenship fortified a broad interpretation of free movement rights on the basis of Treaty guarantees. By contrast, the area of freedom, security and justice establishes competences without telling the legislature how open borders shall be towards third-country nationals. It may opt for a generous migration regime, but it is not constitutionally obliged to do so.26 Instead, the European Convention drafting today’s primary law laid down diverse and potentially contradictory objectives: “compliance with the principle of non-refoulement” and “fair treatment of third-country nationals” shall be combined with “enhanced measures to combat illegal immigration” and “efficient monitoring of the crossing of external borders”.27 There is a strong contrast between the freedom-enhancing prescriptions underlying the internal market and the vague description of diverse policy objectives for migration, asylum and border controls. That is not to say that judges could not gradually develop a robust constitutional vision, but we shall see later that this has not happened so far. Even a cursory inspection of primary law demonstrates, therefore, that the constitutional foundations of single market law and migration policy differ markedly.28 That is one reason why judges tread carefully in migratory matters. Nonetheless, abstract constitutional rules should not be equated with complete freedom for the legislature. There are, also within the area of freedom, security and justice, important constitutional limits that judges have to enforce, in particular human rights and general principles of Union law. They will be considered below. Recognising the characteristics of the Treaty regime Courts can be conservative institutions that prefer following an established line of reasoning instead of sudden twists. Such continuity can be a value in itself, promoting legal certainty and allowing domestic courts and other actors to predict the outcome of future cases. Path-dependency defines judicial reasoning, Re Draft Treaty on a European Economic Area (No.1) (Opinion 1/91) EU:C:1991:490; [1992] 1 C.M.L.R. 245 (EEA I) at [21]. 24 Regarding the concept and notion of “third-country national”, see K. Groenendijk, “Categorizing Human Beings in EU Migration Law” in S. Bonjour, A. Rea and D. Jacobs (eds), The Others in Europe (Brussels: Institut d’études européennes, 2011), pp.21–36. 25 Article 26.2 TFEU. 26 Note that art.77.1(b) TFEU contrasts with art.26.2 TFEU. 27 See the objectives for secondary legislation in arts 67.2, 77.1, 78.1 and 79.1 TFEU. 28 For more comments, see D. Thym, “EU Migration Policy and its Constitutional Rationale” (2013) 50 C.M.L. Rev. 709, 716–725. 23 (2019) 44 E.L. Rev. April © 2019 Thomson Reuters and Contributors Role of the ECJ in Immigration, Asylum and Border Control Policy 143 not only in common law jurisdictions which ascribe a formal status to precedents.29 It requires strong incentives to interrupt the contingent transfer of established principles to new scenarios and to convince judges to reassess the foundations of the case law.30 Arguably, the reasoning of ECJ judgments over the past years demonstrates that judges became increasingly aware that the constitutional framework for justice and home affairs differs from the rules on the single market. For many years, there had been few preliminary references on migratory matters and those that reached Luxembourg had often approached the status of third-country nationals indirectly, from a free movement perspective. Until a decade ago,31 most judgments concerned family members of Union citizens and the interpretation of association agreements, in particular with Turkey. In these scenarios, there was on overlap with previous case law on the single market or citizenship. It did not come as a surprise, therefore, that judges extended the rights-based reasoning of these policy fields to the migration component of the cases at hand. Over the years, however, judges have started highlighting what else the EU Treaties and secondary legislation said on justice and home affairs. They recognised the specificities of migration law and policy within the area of freedom, security and justice. First, judges subscribed to a cautious interpretation of the EEC-Turkey Association Agreement.32 For many years, they had subscribed to a generous reading of the association acquis, thereby approximating the legal status of former Turkish “guest workers” and their descendants with free movement rules “so far as is possible”.33 This orientation at the single market gave way to a nuanced outlook when judges emphasised that the concept of Union citizenship cannot be applied to third-country nationals and that, instead, “another reference framework”34 should be considered, namely the Long Term Residents Directive 2003/109. The ECJ accepted that—unlike Union citizens—family members of Turkish nationals may usually be required to demonstrate basic language skills when applying for an entry visa and justified this conclusion under reference to a specific Treaty rule on immigrant integration policies.35 Other judgments highlighted the objective of efficiently managing migration flows in art.79.1 TFEU.36 Judges nowadays recognise the distinct Treaty framework for migration established by the Treaty of Lisbon. Secondly, the case law on Union citizenship has an inbuilt overlap with migration when family members with the nationality of a third state apply for a residence permit to join or accompany an EU national. It is beyond the scope of this contribution to summarise the rich contours of the case law, including controversial rulings such as Akrich,37 Metock,38 Zhu & Chen39 as well as Ruiz Zambrano40 and follow-up 29 On corresponding practice of the ECJ on the supranational legal order, which is not officially precedent-based, see M.A. Jacob, Precedents and Case-Based Reasoning in the European Court of Justice (Cambridge: Cambridge University Press, 2014). 30 See S.K. Schmidt, “Who Cares about Nationality? The Path-Dependent Case Law of the ECJ from Goods to Citizens” (2012) 19 J. Eur. Publ. Pol’y 8, 9–15. 31 The Lisbon Treaty lifted the previous prohibition in art.68(1) EC Treaty as amended by the Treaty of Amsterdam ([1997] OJ C340/145) that only the highest courts of the Member States might refer questions to the ECJ; in addition, there was little secondary legislation before the end of the transposition period for the first generation of directives on asylum and migration, which expired 2005–07. 32 For an overview, see P. Boeles et al., European Migration Law, 2nd edn (Antwerp: Intersentia, 2014), pp.97–116. 33 Bozkurt (C-434/93) EU:C:1995:168 at [20]; the wording and objectives of the association agreement vindicated that outcome, although its reach (and limits) remained ambiguous. 34 Ziebell (C-371/08) EU:C:2011:809 at [74] and [78]; for further comments, see D. Thym, “Constitutional Foundations of the Judgments on the EEC-Turkey Association Agreement” in D. Thym and M. Zoeteweij-Turhan (eds), Rights of Third-Country Nationals under EU Association Agreements (The Hague: Brill Nijhoff, 2015), pp.13–38. 35 Genc (C-561/14) EU:C:2016:247 at [55] referred to art.79.4 TFEU. 36 See Tekdemir (C-652/15) EU:C:2017:239 at [36]; and Yön (C-123/17) EU:C:2018:632 at [77]. 37 Secretary of State for the Home Department v Akrich (C-109/01) EU:C:2003:491; [2004] Q.B. 756. 38 Metock v Minister for Justice, Equality and Law Reform (C-127/08) EU:C:2008:449; [2009] Q.B. 318. 39 Chen v Secretary of State for the Home Department (C-200/02) EU:C:2004:639; [2005] Q.B. 325. 40 Ruiz Zambrano v Office National de l’Emploi (ONEm) (C-34/09) EU:C:2011:124; [2012] Q.B. 265. (2019) 44 E.L. Rev. April © 2019 Thomson Reuters and Contributors 144 European Law Review cases, including Rendón Marín.41 For our purposes, it is sufficient to say that early judgments sidelined the migration component,42 while the reasoning of more recent rulings demonstrated greater sensitivity. Judges openly discussed the overlap and potential conflict between the citizenship acquis and the legislation on third country nationals adopted within the area of freedom, security and justice, in particular the Family Reunification Directive 2003/86 and the Long Term Residents Directive 2003/109.43 In Dereci, judges emphasised that human rights constitute the primary constitutional frame of reference when the rules on citizenship are found not to be applicable.44 To determine whether that is a case remains a formidable challenge; the exact demarcation continues to keep judges busy.45 Yet, these difficulties do not unmake the recognition of principle that there is an alternative frame of reference. Thirdly, the case law on justice and home affairs legislation recognised the distinct Treaty framework on various occasions, although most judgments do not discuss primary law at length. The underlying reason is simple: Treaty rules on migration, asylum and border controls do not establish precise constitutional prescriptions mirroring the directly applicable guarantees to cross-border movement and equal treatment underlying the single market or Union citizenship. In the absence of strict prescriptions, judges concentrate on the contents of secondary legislation.46 Nevertheless, judges occasionally discuss primary law. Thus, they mentioned that they are bound to consider the position of the legislature when deciding on the legality of temporary internal border controls.47 On other occasions they recognised that primary law aims at combatting illegal immigration48 and that it strives for the proper functioning of the Common European Asylum System, including through the prevention of secondary movements.49 That is a different outlook than the freedom-enhancing rationale of the internal market or citizenship, even though human rights balance this orientation of migration law at the public interest. Charter of Fundamental Rights—limited dynamism To maintain that the Treaty regime for migration differs from the constitutional infrastructure of Union citizenship and the single market does not entail that third-country nationals have no guarantees on their side. On the contrary, they can invoke human rights under the Charter, which generally takes pride in presenting itself as an avant-garde catalogue.50 In the field of migration, however, it appears as a Rendón Marín v Administracion del Estado (C-165/14) EU:C:2016:675; [2017] Q.B. 495. For an overview, see D. Thym “Family as Link” in H. Verschueren (ed.), Residence, Employment and Social Rights of Mobile Persons (Antwerp: Intersentia, 2016), p.11 at pp.19–31. 42 See S. Barbou des Places, “Droit communautaire de la liberté de circulation et droit des migrations” in Mélanges en l’honneur de Philippe Manin (Paris: Pedone, 2010), p.341 at pp.344–350. 43 Directive 2003/86 was discussed, e.g., by Ymeraga v Ministre du Travail, de l’Emploi et de l’Immigration (C-87/12) EU:C:2013:291; [2013] 3 C.M.L.R. 33 at [24]–[33]; Directive 2003/109 was mentioned in Iida v Stadt Ulm (C-40/11) EU:C:2012:2405; [2013] Fam. 121 at [36]–[48]; moreover, the Return Directive 2008/115 was referred to in KA v Belgium (C-82/16) EU:C:2018:308; [2018] 3 C.M.L.R. 28. 44 See Dereci v Bundesministerium fur Inneres (C-256/11) EU:C:2011:734; [2012] 1 C.M.L.R. 45 at [70]–[74]. 45 A prominent recent judgment was Lounes v Secretary of State for the Home Department (C-165/16) EU:C:2017:862; [2018] Q.B. 1060. 46 See L. Azoulai and K. de Vries, “Introduction” in L. Azoulai and K. de Vries (eds), EU Migration Law: Legal Complexities and Political Rationales (Oxford: Oxford University Press, 2014), p.1 at p.7. 47 See Proceedings against Melki (C-188/10) EU:C:2010:363; [2011] 3 C.M.L.R. 45 at [65]. 48 See Criminal Proceedings against Celaj (C-290/14) EU:C:2015:640; [2016] 1 C.M.L.R. 37 at [23]; and A (C-9/16) EU:C:2017:483 at [49]. 49 See K v Staatssecretaris van Veiligheid en Justitie (C-18/16) EU:C:2017:680; [2018] 1 C.M.L.R. 43 at [36] and [39]. 50 Recital 4 emphasises that the Charter strengthens the protection of fundamental rights “in the light of changes in society, social progress and scientific and technological developments”; by way of illustration, see the prohibition of reproductive cloning in art.3(2)(d) or equal treatment of gays and lesbians in art.21(1). 41 (2019) 44 E.L. Rev. April © 2019 Thomson Reuters and Contributors Role of the ECJ in Immigration, Asylum and Border Control Policy 145 comparatively conservative document, which principally reaffirms existing obligations under the ECHR. That is not to say that there are no limits, but the Charter does not generally pre-empt policy choices. Status quo—legislative discretion In its first prominent ruling on migration, the Court confirmed that the Charter does not undo the discretion of the legislature to decide on the road to be taken within the confines of human rights. It recognised in Parliament v Council that the right to family life in art.7 of the Charter does not guarantee a human right to family reunification in line with established case law on art.8 ECHR. Luxembourg followed Strasbourg—not its single market or citizenship case law.51 At the same time, judges emphasised that secondary legislation may opt for generous rules, thereby establishing statutory guarantees that go beyond the minimum threshold of human rights law.52 Such individual rights will be discussed below. When it comes to the free movement of workers in the single market, the Charter explicitly confirmed the privileged position of Union citizens and sanctioned a lesser degree of constitutional protection for third country nationals. Article 15(2) reiterates the right of “every citizen of the Union” to seek employment in any Member State,53 while art.15(3) guarantees to third-country nationals “who are authorised to work” working conditions equivalent to those of citizens. This sounds liberal, but the substance is meagre: whereas EU citizens have a fundamental right to cross-border movement, workers from third states benefit from equal working conditions only without being allowed to enter a European country to take up employment in the first place.54 Again, legislation may (and does) lay down statutory guarantees to entry,55 but the Charter does not prescribe such an outcome. The legislature benefits from a principled discretion how open borders are to be. The position of the Court on non-refoulement obligations towards refugees mirrors the approach to family life. Again, the ECJ followed the European Court of Human Rights (ECtHR), albeit reluctantly. Most readers will be familiar with rulings, such as NS or Opinion 2/13, in which the Luxembourg court warned the Strasbourg court not to undermine the effective functioning of the area of freedom, security and justice through its human rights case law.56 The underlying dispute concerned the suspension of Dublin transfers of asylum seekers: while the ECJ had initially limited the suspension to situations of systemic flaws, it recognised later that individual violations of art.4 of the Charter may yield similar results.57 In a similar vein, Luxembourg followed Strasbourg’s interpretation of art.3 ECHR in M’Bodj, Abdida and MP, but interpreted the concept of subsidiary protection narrowly, thereby excluding “medical cases” from the scope of Directive 2011/95 in regular circumstances, while reminding the Member States that they may have to refrain from expulsion in accordance with domestic laws on human rights grounds.58 In Cf. Parliament v Council (C-540/03) EU:C:2006:429; [2006] 3 C.M.L.R. 28 at [53]–[59]; ECtHR case law has not changed categorically since then; for a critical perspective, see M.-B. Dembour, When Humans Become Migrants (Oxford: Oxford University Press, 2015), Ch.4. 52 Parliament v Council (C-540/03) EU:C:2006:429 at [60]. 53 CFR art.52(2), (7) and the official Explanations ([2007] OJ C303/17), p.23 confirm that this right is to be interpreted in line with arts 45, 49, 56 TFEU. 54 The wording requires previous authorisation; similarly, TFEU art.45(1), (2) distinguish between the free movement of Union citizens and legally residing third-country nationals and authorises the legislature to decide on the latter. 55 See, for instance, Ben Alaya v Germany (C-491/13) EU:C:2014:2187; [2015] 1 W.L.R. 656 at [23]–[27] on the admission of students under Directive 2004/114. 56 Cf. R. (on the application of NS v Secretary of State for the Home Department (C-411/10) EU:C:2011:865; [2013] Q.B. 102 at [75]–[83]; and Opinion pursuant to Article 218(11) TFEU (2/13) EU:C:2014:2454; [2015] 2 C.M.L.R. 21 at [191]–[195]. 57 See CK v Slovenia (C-578/16 PPU) EU:C:2017:127; [2017] 3 C.M.L.R. 10 at [59]–[65]; and K. Lenaerts, “La vie après l’avis” (2017) 54 C.M.L. Rev. 805, 831–837. 58 See M’Bodj v Belgium (C-542/13) EU:C:2014:2452; [2015] 2 C.M.L.R. 16 at [40]–[46]; Centre public d’action sociale d’Ottignies-Louvain-la-Neuve v Abdida (C-562/13) EU:C:2014:2453; [2015] 2 C.M.L.R. 15 at [44]–[50]; and 51 (2019) 44 E.L. Rev. April © 2019 Thomson Reuters and Contributors 146 European Law Review this context, the ECJ also confirmed that art.19(2) of the Charter must be construed in line with art.3 ECHR and does not establish a higher layer of protection.59 There are indications that a similar conclusion may have to be drawn on the right to asylum in art.18 of the Charter, which employs notoriously open wording that leaves room for interpretation.60 Judges have avoided pronouncing themselves explicitly on the issue so far,61 but stated that art.18 does not sanction multiple asylum applications in the EU, thereby indicating that the provision has a limited impact.62 They also indicated that the provision might reconfirm the prohibition of refoulement instead of guaranteeing individual asylum applications and access to all rights enshrined in the Geneva Convention.63 Such reluctance echoes a general point. Full respect to international refugee law in accordance with art.78(1) TFEU limits the discretion of the legislature,64 but does not pre-empt policy choices within the framework of the Geneva Convention.65 It is widely acknowledged by state practice, domestic courts and the position of UNHCR that refugee movement can be managed indirectly, through the introduction of responsibility-sharing mechanisms, such as Dublin, or the designation of safe third countries, which allows states to refer refugees to protection elsewhere under certain conditions. It is beyond the scope of this article to discuss the limits of such instruments that aim at managing refugee movements indirectly under international refugee and human rights law.66 For our purposes, we may conclude nonetheless that the Treaty regime on migration leaves some leeway to the legislature and that the Court of Justice recognises this room for manoeuvre in its case law. In contrast to Treaty rules on the single market, the Charter is not transformative. It limits the room for legislative choices, but does not direct them towards a pre-defined objective. MP (Sri Lanka) v Secretary of State for the Home Department (C-353/16) EU:C:2018:276; [2018] Imm. A.R. 1166 at [36]–[44]; for the underlying doctrinal question, see K. Hailbronner and D. Thym, “Legal Framework for EU Asylum Policy” in K. Hailbronner and D. Thym (eds), EU Immigration and Asylum Law: Commentary, 2nd edn (Munich: C.H. Beck/Oxford: Hart Publishing, 2016), MN 21, pp.55–59. 59 See Tall v Centre public d’action sociale de Huy (CPAS de Huy) (C-239/14) EU:C:2015:824 at [53]–[54] and the judgments mentioned in the previous footnote; in light of the drafting history and art.52(4), (7) of the Charter, this solution was to be expected. 60 The drafting history shows that ambiguity was a deliberate choice; see the survey of the research department of the German Parliament in Deutscher Bundestag, “Obergrenzen für Asylsuchende und Bürgerkriegsflüchtlinge im Lichte des EU-Rechts”, PE 6 — 3000 — 153/15 (16 December 2015), pp.17–20; for a contrasting call for a generous interpretation, see V. Moreno-Lax, Accessing Asylum in Europe (Oxford: Oxford University Press, 2017), pp.365–392. 61 See, for instance, R. (on the application of NS) v Secretary of State for the Home Department (C-411/10) EU:C:2011:865 at [109], [114]; and Halaf v Darzhavna agentsia za bezhantsite pri Ministerskia savet (C-528/11) EU:C:2013:342; [2013] 1 W.L.R. 2832 at [40]–[42]. 62 Cf. Slovak Republic v Council (C-643/15) EU:C:2017:631; [2018] 1 C.M.L.R. 32 at [340]–[343]; see also the Austrian Constitutional Court, decision of 6 March 2013, U 1325/2012. 63 See Gnandi v Belgium (C-181/16) EU:C:2018:465 at [53]–[54]; Alheto v Zamestnik-predsedatel na Darzhavna agentsia za bezhantsite (C-585/16) EU:C:2018:584 at [129]; and T v Land Baden-Wurttemberg (C-373/13) EU:C:2015:413; [2016] 1 W.L.R. 109 at [65]; similarly, the graded approach to rights under the Geneva Convention in the Opinion of AG Wathelet in M v Ministerstvo vnitra (C-391/16) EU:C:2018:486 at [109]–[113]. 64 See, for instance, Abdulla v Germany (C-175/08) EU:C:2010:105; [2011] Q.B. 46 at [53]; and the criticism by Moreno-Lax, Elgafaji, forthcoming. 65 One should criticise, however, the fact that the ECJ refrains from active engagement in the transnational discourse on refugee law by not reflecting openly on why its position occasionally differs from the view of other important actors, such as the UNHCR; see R. Bank, “The Potential and Limitations of the Court of Justice in Shaping International Refugee Law” (2015) 27 I.J.R.L. 213, 224–236. 66 Cf. S.H. Legomsky, “Secondary Refugee Movements and the Return of Asylum Seekers to Third Countries” (2003) 15 I.J.R.L. 567; and D. Thym, “Expert Opinion for the (German) Federal Ministry of the Interior” (January 2017), SSRN, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3163014 [Accessed 1 March 2019]. (2019) 44 E.L. Rev. April © 2019 Thomson Reuters and Contributors Role of the ECJ in Immigration, Asylum and Border Control Policy 147 Extended guarantees in certain domains It should be noted that, in some domains, the Charter transcends the confirmation of status quo under the ECHR and the Geneva Convention, since it may “provide more extensive protection”.67 Several provisions realise that option. They may not concern core tenets of migration law, but they are relevant nonetheless—as an inspection of recent ECJ rulings demonstrates. EU primary law rejects traditional notions of unfettered state control over migratory movements and moves beyond existing guarantees in some respects.68 It requires courts and political actors to strike a balance between countervailing private interests and public policy objectives. First, the ECJ assumed that detention is subject to a strict proportionality assessment, even in scenarios in which the ECtHR limits itself to an arbitrariness test in the context of entry clearance.69 That can have important practical repercussions for the detention of asylum seekers at hotspots or in transit centres at the external border of the European Union.70 Secondly, the rights of the child may result in an advanced level of protection,71 although effects will arguably be limited, since the ECtHR had incorporated that guarantee in its case law on the right to family life under art.8 ECHR some years earlier.72 Thirdly, other provisions of the Charter may have an indirect effect, including the guarantee of human dignity73 or the general prescription of social assistance,74 which can influence the interpretation of secondary legislation concerning the rights of migrants residing legally in the EU. Few court judgments have explored this potential so far, but judges might do so in the future.75 Fourthly, many judgments concern the right to an effective remedy,76 which art.47 of the Charter lays down in the same way as art.41 establishes a right to good administration as a novelty within the EU legal order.77 That is particularly important for Member States which do not incorporate migration and asylum 67 Article 52(3) of the Charter. Generally, see Thym, “EU Migration Policy and its Constitutional Rationale” (2013) 50 C.M.L. Rev. 709, 725–735; and D. Thym, “Citizens and Foreigners in EU Law” (2016) 22 E.L.J. 296, 306–315. 69 K v Staatssecretaris van Veiligheid en Justitie (C-18/16) EU:C:2017:680; [2018] 1 C.M.L.R. 43 at [38], [40], [43]–[44], [50]–[52] recognise the autonomy of Union law and prescribe a strict proportionality assessment in line with N v Staatssecretaris voor Veiligheid en Justitie (C-601/15 PPU) EU:C:2016:84; [2017] 1 C.M.L.R. 42 at [47], [54]–[57], [60] in a scenario concerning the first limb of art.5(1)(f) ECHR, in relation to which Musa v Malta (2015) 60 E.H.R.R. 23 at [96] and the case law cited therein limit themselves to an arbitrariness test; the ECJ did not mention or discuss the divergence. 70 The judgments in N v Staatssecretaris voor Veiligheid en Justitie (C-601/15 PPU) EU:C:2016:84 and Musa v Malta (2015) 60 E.H.R.R. 23 do not distinguish clearly between human rights and arts 8–9 Directive 2013/33 and could possibly be read to focus on secondary legislation, i.e. the interpretation of the Charter might follow the ECHR, if the legislature amended secondary legislation. 71 See MA v Secretary of State for the Home Department (C-648/11) EU:C:2013:367; [2013] 1 W.L.R. 2961 at [57]–[60], which again did not distinguish clearly between secondary law and human rights. 72 Cf. the dynamic interpretation of art.8 ECHR by Nunez v Norway (2014) 58 E.H.R.R. 17 at [84]. 73 See the prohibition of certain interrogation techniques to determine whether an asylum seeker is gay or lesbian by A v Staatssecretaris van Veiligheid en Justitie (C-148/13) EU:C:2014:2406; [2015] 1 W.L.R. 2141 at [65]–[66]; and F v Bevandorlasi es Allampolgarsagi Hivatal (C-473/16) EU:C:2018:36; [2018] 2 C.M.L.R. 31 at [27]–[53]; in both cases the reference to art.1 of the Charter remained abstract as one argument among others. 74 See Kamberaj v Istituto per l’Edilizia Sociale della Provincia Autonoma di Bolzano (IPES) (C-571/10) EU:C:2012:233; [2012] 2 C.M.L.R. 43 at [92]. 75 For a rich analysis see S. Sánchez Iglesias, “The Constitutional Status of Foreigners and EU Citizens” in D. Thym (ed.), Questioning EU Citizenship (London: Bloomsbury/Oxford: Hart Publishing, 2017), pp.243–266. 76 While art.13 ECHR applies to asylum cases whenever there is a real risk of a violation of another fundamental right, the generic human right to a fair trial under art.6 ECHR does not cover most asylum and migration cases. 77 Although art.41 of the Charter applies directly to EU Institutions only, N v Minister for Justice, Equality and Law Reform (C-604/12) EU:C:2014:302; [2014] 1 W.L.R. 3371 at [49] found that general principles with the same contents must be respected by the Member States. 68 (2019) 44 E.L. Rev. April © 2019 Thomson Reuters and Contributors 148 European Law Review cases into the general court structure.78 Treaty rules ensure that the practice of immigration authorities does not emanate from an arcane sphere of state sovereignty and is subject to the rule of law, although it must be assessed carefully on a case-by-case basis what exactly the Charter prescribes. Thus, the ECJ emphasised that a remedy must have suspensive effect when the ECHR requires the same outcome.79 It also stated on several occasions that the right to a defence does not require multiple hearings before subsequent administrative decisions on similar matters, thereby recognising that the rights of migrants must be balanced with state interests in swift and effective decision-making.80 These procedural guarantees may sound technical, but it is of great importance for practitioners if migration cases are firmly integrated into the mainstream of rule-based administrative law. This leaves us with the overall conclusion that the Charter is not a transformative document, although it contains provisions that have important repercussions. Moreover, it is in the nature of human rights law to evolve over time, since its open character can be a trajectory for those supporting the progressive expansion of migrants’ rights by means of dynamic interpretation.81 Even if that did not happen in the forseeable future, a conservative human rights instrument provides a safety net nonetheless against future attempts by the EU Institutions or the Member States to limit the legal status of migrants or the right to asylum excessively. EU law recognises the legitimate interests of states in managing migratory movements and, at the same time, it continues the tradition of taming the nation-state by curbing regulatory excesses of political processes at the national level.82 Interaction between the Court and the political institutions The widespread expectation among legal academics working on migratory matters that the Court would play an active role reflected its prominent role in the construction of the European project, but there is a flipside of this argument from a constitutional perspective. A prominent role for judges moderates the position of parliamentarians and governments. Indeed, one factor that helps rationalising the lesser weight of the Court in migratory matters is the interaction with the Union legislature—both at an inter-institutional level and regarding the concept of individual statutory rights that defines much of the Court’s reasoning. Interaction with the legislature From a comparative perspective, there was and is nothing quasi-natural in the centrality of the ECJ. In domestic constitutional systems, judges often play a different role and there are indications that the position of the Luxembourg Court may be changing as well, not only in the field of migration. A widespread criticism of the single market or monetary union is what scholars of constitutional law describe as the “overconstitutionalisation” of the Treaty regime, if primary law pre-empts policy choices.83 That general 78 Note that the reach of the Charter under art.51(1) is controversial; see F. Fontanelli, “Implementation of EU Law through Domestic Measures after Fransson” (2014) 39 E.L. Rev. 682. 79 Cf. Abdida (C-562/13) EU:C:2014:2453 at [44]–[53]; and Tall (C-239/14) EU:C:2015:824 at [57]–[58]. 80 See G v Staatssecretaris van Veiligheid en Justitie (C-383/13 PPU) EU:C:2013:533; [2014] 1 C.M.L.R. 27 at [32]–[40]; Mukarubega v Prefet de police (C-166/13) EU:C:2014:2336; [2015] 1 C.M.L.R. 41 at [53]–[59]; and J.-Y. Carlier and L. Lebœuf, “Droit européen des migrations” (2018) Journal de droit européen 95, 106. 81 See also J. Habermas, “The Concept of Human Dignity and the Realistic Utopia of Modern Rights” (2010) 41 Metaphilosophy 464; and M. Kumm, “The Cosmopolitan Turn in Constitutionalism” in J.L. Dunoff and J.P. Trachtman (eds), Ruling the World (Cambridge: Cambridge University Press, 2009), p.258 at pp.303–305. 82 Cf. J.-W. Müller, Contesting Democracy (New Haven: Yale University Press, 2011), Ch.4; and J.H.H. Weiler, “Thou Shalt Not Oppress a Stranger” (1992) 3 E.J.I.L. 65, 66–68. 83 The term was coined by D. Grimm, The Constitution of European Democracy (Oxford: Oxford University Press, 2017), Ch.15; similarly, G. Davies, “Democracy and Legitimacy in the Shadow of Purposive Competence” (2015) 21 E.L.J. 2. (2019) 44 E.L. Rev. April © 2019 Thomson Reuters and Contributors Role of the ECJ in Immigration, Asylum and Border Control Policy 149 criticism may have been mitigated somewhat in recent years when judges in Luxembourg refrained from interfering excessively with policy reform in response to the euro crisis84 and discontinued ambitious earlier case law on access to social benefits by Union citizens.85 European judges may generally be less active nowadays in different domains of the interpretation process and this trend is particularly pronounced when it comes to migration, asylum and border controls. It was explained above that Treaty rules on the area of freedom, security and justice differ from the blueprint of the single market: they replicate the standard model of most constitutional democracies by empowering political actors to discuss and change policies within the confines of human rights. If that is correct, the neutral designation “justice and home affairs” or related terminology, which the relevant Directorates General and parliamentary committees continue to use in line with earlier Treaty language,86 may be a better constitutional descriptor than the label “area of freedom, security and justice”, which the Treaties employ nowadays and which hints at an underlying policy concept that may not exist.87 From a democratic perspective, the absence of “over-constitutionalisation” can be described as a constitutional virtue. Judges leave room for political choices, although we should recognise the inherent asymmetry of primary law, if it mirrors domestic constitutional settings on justice and home affairs, while being much stricter than most national constitutions on socio-economic policy-making in the single market or monetary union. While detailed prescriptions for economic, budgetary and social policies are problematic from a theoretical perspective, there are good reasons to protect the rights and interests of third-country nationals through human rights and judicial intervention, since foreigners are structurally excluded from the democratic contest. EU primary law does the latter, but arguably fails to grant sufficient leeway to the legislature in the field of socio-economic policy. Generally, there is ample evidence that judges aim at securing the “external” legitimacy towards the political institutions in the same way as they strive for the “internal” legitimacy of sound doctrinal hermeneutics.88 Judges are eager to identify the preferences of the legislature, even if the latter may be in a weak position to react to Court rulings it dislikes through legislative change or Treaty amendment because of the procedural rigidity of the European polity.89 In the single market or citizenship case law, there may be a tendency among judges to sideline legislative critique,90 but the reasoning of most judgments on migration, asylum and border control are defined by a different outlook. They are characterised by what one might call an “administrative mindset” when judges focus their argument on the wording, the general scheme, the objectives and, more recently, even the drafting history of secondary law. Such a strategy of statutory interpretation does what law students are taught at their first semesters at university: to develop a classic doctrinal argument of legal hermeneutics in the continental tradition. See J. Snell, “Editorial: Crises Compared” (2018) 43 E.L. Rev. 142; and N. Scicluna, European Union Constitutionalism in Crisis (London: Routledge, 2015), pp.133–135. 85 See Jobcenter Berlin Neukolln v Alimanovic (C-67/14) EU:C:2015:597; [2016] Q.B. 308. 86 At present, there are two DGs on “migration and home” and “justice and consumers”, and one EP committee on “civil liberties, justice and home affairs”. 87 Title VI TEU as introduced by the Treaty of Maastricht ([1992] OJ C191/1) referred to “justice and home affairs”; on modifications thereafter see J. Monar, “The Area of Freedom, Security and Justice” in A. von Bogdandy and J. Bast (eds), Principles of European Constitutional Law, 2nd edn (Oxford: Hart Publishing, 2009), p.551 at pp.554–562. 88 See K. Lenaerts, “The Court’s Outer and Inner Selves” in Adams et al. (eds), Judging Europe’s Judges (2013), p.13 at pp.17–28; and V. Hatzopoulos, “Actively Talking to Each Other” in M. Dawson et al. (eds), Judicial Activism at the European Court of Justice (Cheltenham: Edward Elgar, 2013), pp.102–141. 89 Unanimity and qualified majority requirements, the Commission’s monopoly of initiative and the asymmetry of domestic political concerns complicate legislative responses. 90 On corresponding judicial techniques see G. Davies, “Legislative Control of the European Court of Justice” (2014) 51 C.M.L. Rev. 1579, 1599–1605; and D. Thym, “Towards ‘Real’ Citizenship?” in Judging Europe’s Judges (2013), p.155 at 159. 84 (2019) 44 E.L. Rev. April © 2019 Thomson Reuters and Contributors 150 European Law Review “Administrative mindset” in practice The “administrative mindset” with judges seeking to follow the legislature permeates the reasoning of many judgments. As a starting point, the Court emphasises that, in relation to a specific provision, “it is necessary to consider its wording, its origin, its context and the objectives pursued by the legislation of which it forms part.”91 To do so may be settled case law, but the field of migration demonstrates a new vigour on the part of judges to embark on corresponding analyses, which can stretch over more than a dozen paragraphs. The relative weight of individual factors depends on the case at hand. It may include discrepancies between language versions,92 inspection of the drafting history,93 the general scheme of the secondary law in question94 or the interaction between other legal instruments on related themes.95 Such approach may appear unusual to those who are unfamiliar with the continental tradition of doctrinal hermeneutics,96 which, arguably, constitutes the hallmark of recent ECJ case law on migration. Conceptually, the interpretative techniques underlying the “administrative mindset” are not limited to a simple orientation at policy choices. At the same time, judges develop the conceptual integrity of the law in scenarios when the legislature failed to lay down a clear-cut preference. It is inherent in the concept of “legal order”, which the ECJ famously considers the EU Treaties to establish,97 that legal rules and doctrinal structures are meant to feed into a consistent whole.98 In other words, an “administrative mindset” does not reflect a static conservatism. Thus, recent Dublin rulings concluded on the basis of the above-mentioned interpretative standards that most provisions in the Dublin III Regulation lay down individual rights asylum seekers may invoke domestically,99 although judges had interpreted the predecessor instrument not to serve the interests of asylum seekers beyond the confines of human rights.100 That outcome was the result of statutory interpretation101 and may be altered by the legislature as a result.102 This trend towards statutory interpretation is supported by the Court’s case law on the legal migration, in relation to which there are few human rights constraints. Hassan v Prefet du Pas-de-Calais (C-647/16) EU:C:2018:368; [2018] 1 W.L.R. 4711 at [40]. See Mengesteab v Germany (C-670/16) EU:C:2017:587; [2018] 1 W.L.R. 865 at [80]–[82]. 93 See Hassan (C-647/16) EU:C:2018:368 at [44]–[46]; Mengesteab v Germany (C-670/16) EU:C:2017:587 at [90]; and T (C-373/13) EU:C:2015:413 at [52] and [58]. 94 See Ghezelbash v Staatssecretaris van Veiligheid en Justitie (C-63/15) EU:C:2016:409; [2016] 1 W.L.R. 3969 at [34]–[51]; similarly, on asylum qualification, see T (C-373/13) EU:C:2015:413 at [68]; and on return Criminal Proceedings against El Dridi (C-61/11 PPU) EU:C:2011:268; [2011] 3 C.M.L.R. 6 at [34]–[41]. 95 Cf. Proceedings Brought by Jafari (C-646/16) EU:C:2017:586 at [62]–[72]; and D. Thym, “Judicial Maintenance of the Sputtering Dublin System on Asylum Jurisdiction” (2018) 55 C.M.L. Rev. 549, 558–560. 96 For an overview, see Beck, The Legal Reasoning of the Court of Justice of the EU (2012), Ch.7; and K. Hailbronner and D. Thym, “Constitutional Framework and Principles for Interpretation” in EU Immigration and Asylum Law (2016), EU Immigration, MN 10–20. 97 NV Algemene Transport- en Expeditie Onderneming van Gend en Loos v Nederlandse Administratie der Belastingen (26/62) EU:C:1963:1; [1963] C.M.L.R. 105. 98 See G. Itzcovich, “Legal Order, Legal Pluralism, Fundamental Principles” (2018) 18 E.L.J. 358, 360–369; and J.A. Bomhoff, “Perfectionism in EU Law” (2014) 12 C.Y.E.L.S. 75. 99 See Ghezelbash (C-63/15) EU:C:2016:409 at [35]; S v Slovenia (C-490/16) EU:C:2017:585; [2018] 1 W.L.R. 852 at [24]–[25]; Shiri v Bundesamt fur Fremdenwesen und Asyl (C-201/16) EU:C:2017:805; [2018] 1 W.L.R. 3384 at [35]; and M. den Heijer, “Remedies in the Dublin Regulation” (2017) 54 C.M.L. Rev. 859, 862–869. 100 Cf. Abdullahi v Bundesasylamt (C-394/12) EU:C:2013:81; [2014] 1 W.L.R. 1895 at [60]. 101 See Ghezelbash (C-63/15) EU:C:2016:409 at [36]–[37]; and K. Lenaerts, “Europarecht und Zuwanderung” in J. Iliopoulos-Strangas et al. (eds), Migration — Migration — Migrations (Baden-Baden: Nomos/Bern: Stämpfli, 2017), p.233 at pp.236–237. 102 See art.28.3–4 of the Commission Proposal for a Dublin IV Regulation according to COM(2016) 270 of 4 May 2016. 91 92 (2019) 44 E.L. Rev. April © 2019 Thomson Reuters and Contributors Role of the ECJ in Immigration, Asylum and Border Control Policy 151 It is important to recognise that the “administrative mindset” does not absolve judges from taking decisions, especially if the position of the legislature remained ambiguous.103 This is manifest at the EU level, since the supranational legal order lacks the systemic coherence of many domestic legal systems and since the wording and general scheme are often inconclusive as a result of poor legislative drafting or political compromises.104 This dual indeterminacy of the legal order and the political process has a knock-on effect on the judicial function, since it reinforces the leeway of judges. They often resolve open questions of statutory interpretation in light of objectives.105 Again, the Dublin case law is a prominent example, since judges struggle to identify the intentions of secondary legislation. Reference to the legislative Recitals does not usually vindicate a clear-cut position either.106 As a result, judges fluctuate between contradictory objectives: the prevention of secondary movements or “forum shopping”107 and swift processing by means of stable asylum jurisdiction.108 Depending on the outcome, judges accentuate either of them—without reflecting openly why they do so.109 The realisation of the “administrative mindset” is more challenging and less static than it might appear at first sight. Concept of individual rights Statutory interpretation need not result in restrictive outcomes, also when the legislature did not say so explicitly. An important legal technique underlying such arguments is the doctrine of individual rights that empowers individuals to invoke supranational legislation to challenge national rules.110 Individual rights define the recent Dublin rulings, discussed above, and feature prominently in the case law on legal migration, including family reunification, visa policy and admission for economic purposes. Corresponding judgments substantiate our general hypothesis that judges tread carefully by advancing individual rights of foreigners in some cases, while yielding to the legislature on other occasions. Individual rights are important, since they can be relied upon whenever human rights do not vindicate the migrants’ position. The Court held as early as 2006 that the Family Reunification Directive 2003/86 “imposes precise positive obligations with corresponding clearly defined individual rights” which are “[g]oing beyond those provisions [of the ECHR]”.111 In other words, individual rights can be more generous than human rights. They lay down statutory guarantees to be admitted to a Member State even if human rights law does not require such an outcome. That applies to family reunification not differently than to Schengen visas under the Visa Code Regulation 810/2009112 and students under Directive 2004/114.113 Third-country nationals must be allowed entry if they fulfil the exhaustive list of admission criteria laid down in secondary legislation. 103 See M. Poiares Maduro, “Interpreting European Law” (2007) 1/2 Eur. J. Legal Stud. 1, 5–10; and the classic position of C.-W. Canaris and K. Larenz, Methodenlehre der Rechtswissenschaft, 3rd edn (Heidelberg: Springer, 1995), Chs 4, 6. 104 See J. Hecker, “Zur Europäisierung des Ausländerrechts” (2011) Zeitschrift für Ausländerrecht 46, 48–49; and E. Sharpston, “Transparency and Clear Legal Language in the EU” (2009–10) 12 C.Y.E.L.S. 409, 411–412. 105 See Beck, The Legal Reasoning of the Court of Justice of the EU (2012), pp.312–313. 106 They usually embody diverse declarations of intent, since it is in the nature of political compromises to combine varied and occasionally contradictory interests and objectives. 107 NS (C-411/10) EU:C:2011:865 at [79]; and Mirza v Bevandorlasi es Allampolgarsagi Hivatal (C-695/15 PPU) EU:C:2016:188; [2016] 3 C.M.L.R. 24 at [52]. 108 See Ghezelbash (C-63/15) EU:C:2016:409 at [52]; Mengesteab (C-670/16) EU:C:2017:587 at [54], [73] and [96]; Shiri (C-201/16) EU:C:2017:805 at [31] and [44]. 109 The situation is similar for recent citizenship case law; see D. Thym, “The Elusive Limits of Solidarity” (2015) 52 C.M.L. Rev. 17, 25. 110 Generally J. Bast, Aufenthaltsrecht und Migrationssteuerung (Tübingen: Mohr Siebeck, 2011), pp.101–111. 111 Parliament v Council (C-540/03) EU:C:2006:429; [2006] 3 C.M.L.R. 28 at [60]. 112 See Koushkaki v Germany (C-84/12) EU:C:2013:862; [2014] 2 C.M.L.R. 38 at [58]–[60]. 113 See Ben Alaya (C-491/13) EU:C:2014:2187; [2015] 1 C.M.L.R. 22 at [23]–[27]. (2019) 44 E.L. Rev. April © 2019 Thomson Reuters and Contributors 152 European Law Review On that basis, the Court embarked on a generous interpretation of family reunification rights in a prominent early judgment on legal migration: the Chakroun case, in which the ECJ sanctioned the Netherlands for stringent economic self-sufficiency requirements in light of the concept of individual rights and corresponding general principles of Union law.114 At the time it was widely expected that this would be the blueprint for innovative follow-up rulings enhancing the rights of migrants.115 Indeed, the concept of individual statutory rights remains highly relevant, since it neutralises traditional notions of state sovereignty over cross-border movements beyond the rule of law.116 Poland, for instance, cannot exclude the jurisdiction of domestic courts in a dispute concerning the denial of a visa.117 Yet, few rulings vindicated the migrants’ standpoint in the same way as Chakroun.118 While the ECJ prevented states from charging excessive fees119 and facilitated family reunification with unaccompanied minors,120 other judgments essentially endorsed the position of the Member States. To the disappointment of many academic observers, the ECJ confirmed language requirements as a precondition for family reunification in K & A subject to a hardship clause,121 approved Austrian rules barring the entry of spouses below the age of 21,122 gave Member States some leeway in assessing income requirements for family reunification,123 and recognised state discretion when rejecting students’ visas.124 The K & A judgment is of particular relevance, since pre-departure language requirements had been highly controversial politically—and yet it does not come as a surprise that the Court was careful in its assessment. It is in the nature of legislation-centred arguments about individual rights that they cannot easily overturn national policies which the EU legislature sanctioned more or less explicitly.125 Judges could possibly have justified a different outcome on the basis of human rights, but remember: the Charter is conservative. It does not establish a generic right to family unity. The individual and the integration project Broader considerations of a contextual constitutional character help us understand why the Court adopts a careful approach towards human and individual rights of foreigners. Scholars of European integration have highlighted repeatedly that the solemn declaration, on the part of the ECJ, of direct effect and See Chakroun v Minister van Buitenlandse Zaken (C-578/08) EU:C:2010:117; [2010] 3 C.M.L.R. 5 at [41] and [43]–[45]. 115 Cf. Groenendijk, “Recent Developments in EU Law on Migration” (2014) 16 E.J.M.L. 313, 329–330; Wiesbrock, “Granting Citizenship-Related Rights to Third-Country Nationals” (2012) 14 E.J.M.L. 63, 76–79; and R. Marx, “Die Sicherung des Lebensunterhalts nach Europarecht” (2010) Zeitschrift für Ausländerrecht 222, 223–225. 116 See Groenendijk, “Recent Developments in EU Law on Migration” (2014) 16 E.J.M.L. 313, 329–334; Acosta Arcarazo and Geddes, “The Development, Application and Implications of an EU Rule of Law in the Area of Migration Policy” (2013) 51 J.C.M.S. 179; and S. Iglesias Sánchez, “Constitutional Identity and Integration” (2017) 18 German Law Journal 1797, 1803. 117 See El Hassani v Minister Spraw Zagranicznych (C-403/16) EU:C:2017:960; [2018] 2 C.M.L.R. 19 at [39]–[41]. 118 Re-reading the judgment, it does not appear as far-reaching as some commentators had presented it at the time, given that the Netherlands was “only” sanctioned for requiring autonomous resources of more than 100 per cent of the minimum wage. 119 See, e.g., Commission v Netherlands (C-508/10) EU:C:2012:243; [2012] 2 C.M.L.R. 48. 120 A v Staatssecretaris van Veiligheid en Justitie (C-550/16) EU:C:2018:248; [2018] 3 C.M.L.R. 20 interpreted age limits generously. 121 See Minister van Buitenlandse Zaken v K (C-153/14) EU:C:2015:453; [2016] 1 C.M.L.R. 9. 122 See Noorzia v Bundesministerin fur Inneres (C-338/13) EU:C:2014:2092; [2015] C.E.C. 255. 123 See Khachab v Subdelegacion del Gobierno en Alava (C-558/14) EU:C:2016:285; [2016] 3 C.M.L.R. 29. 124 See Ben Alaya (C-491/13) EU:C:2014:2187; [2015] 1 W.L.R. 656 at [33]; and Fahimian v Germany (C-544/15) EU:C:2017:255; [2017] 1 W.L.R. 4143 at [43] and [46], which is noteworthy owing to the generous approach to the public policy exception. 125 See Directive 2003/86 art.7.2; and D. Thym, “Towards a Contextual Conception of Social Integration in EU Immigration Law” (2018) 18 E.J.M.L 89, 96–97, 100–103. 114 (2019) 44 E.L. Rev. April © 2019 Thomson Reuters and Contributors Role of the ECJ in Immigration, Asylum and Border Control Policy 153 corresponding rights “which become part of [the individual’s] legal heritage”126 need not have been motivated by a primary desire to enhance the position of individuals. Rather, the Court followed a functional path by empowering individuals as agents of the supranational legal order to ensure compliance via domestic courts.127 The doctrines of direct effect and individual rights were primarily concerned with effective government structures in support of the effet utile of Union law.128 That is not to say that these concepts cannot develop a life of their own. The Chakroun case and recent Dublin rulings are perfect examples that demonstrate that by creating “agents” supporting the effectiveness of EU law, judges simultaneously created “actors” promoting their agenda via Union law. For that reason, it can be expected that the Court will be particularly rigorous when the EU’s objectives coincide with the interests of individuals. The evolution of the case law can be rationalised from that perspective in line with previous comments. While the rights of foreigners flourished early on in the slipstream of the internal market and citizenship case law, judges emphasised more recently that the EU Treaties embrace a distinct and more nuanced regime on migratory matters. Lack of “constitutional imagination” It is in the nature of constitutional law that it establishes a long-term framework transcending the business of the day. In that respect, the Treaty rules on the area of freedom, security and justice may be much more open than the provisions on the single market, but that does not render them irrelevant. Indeed, primary law arguably holds a potential judges have hesitated to unearth. The “administrative mindset” which permeates much of the Court’s reasoning is accompanied by the lack of “constitutional imagination”. My choice of terminology is conscious. The term “imagination” is meant to indicate that the analysis moves beyond legal-doctrinal arguments,129 assuming that constitutions convey a set of normative values and express basic choices of societies, which change over time.130 Such modification can result in feedback loops with legal analyses.131 Against this background, this section critically assesses the Court’s recent rulings in the context of the asylum policy crisis. Silence on the Treaties It is an integral part of the vision of autonomous legal order that the EU Treaties establish their “own constitutional framework and founding principles”,132 which authorise the Court to correct the outcome of the legislative process whenever it infringes constitutional principles. However, it is less obvious when this is the case. A series of five rulings deserve closer attention, since they required the Court to confront core challenges of asylum law in the context of the ongoing policy crisis—and judges refrained from any NV Algemene Transport- en Expeditie Onderneming van Gend en Loos v Nederlandse Administratie der Belastingen (26/62) EU:C:1963:1; [1963] C.M.L.R. 105 at p.12 of the English translation. 127 See B. de Witte, “Direct Effect, Primacy and the Nature of the Legal Order” in Craig and De Búrca (eds), The Evolution of EU Law (2011), p.323 at pp.358–359; and J.H.H. Weiler, “Van Gend en Loos: The Individual as Subject and Object and the Dilemma of European Legitimacy” (2014) 12 ICON 94. 128 See D. Chalmers and L. Barroso, “What van Gend en Loos Stands For” (2014) 12 ICON 105, 120–133. 129 “Imagination” usually refers to the world of ideas; cf. T. Gendler, “Stanford Encyclopedia of Philosophy”, https: //plato.stanford.edu/entries/imagination [Accessed 1 March 2019]. 130 See R.R. Cover, “Foreword: Nomos and Narrative” (1983) 97 Harvard L. Rev. 4; M. Koskenniemi, “Constitutionalism as Mindset” (2007) 8 Theo. Inquiries in Law 9, 23–36; and, in the context of migration and asylum L. Azoulai, “Le droit européen de l’immigration, une analyse existentielle” (2018) RTD Eur. 519, 521–522. 131 On “doctrinal constructivism” see A. von Bogdandy, “Founding Principles of EU Law: A Theoretical and Doctrinal Sketch” (2010) 16 E.L.J. 95, 98–100. 132 Opinion pursuant to Article 218(11) TFEU (2/13) EU:C:2014:2454 at [158]. 126 (2019) 44 E.L. Rev. April © 2019 Thomson Reuters and Contributors 154 European Law Review meaningful constitutional analysis in all of them. That finding is particularly relevant, since asylum is subject to stricter constitutional guarantees than immigration and border control policies. Jafari and AS concerned the applicability of the Dublin III Regulation during 2015/16. Judges had to decide whether the primary responsibility of states at the external border continued at a time of mass arrivals. In contrast to the Advocate General,133 the Grand Chamber answered the question in the affirmative,134 even if that could result, theoretically at least,135 in the transfer of dozens of thousands of applicants to Italy, Greece or Croatia. To the disappointment of many observers, who had argued that the Dublin III Regulation fell foul of the principle of solidarity enshrined in art.80 TFEU,136 judges embarked on a complex journey of statutory interpretation in line with the “administrative mindset” described above. Article 80 TFEU was mentioned when the Grand Chamber called upon the Member States and the EU Institutions to react to the crisis “in a spirit of solidarity”.137 Note, however, that it is the political actors that judges call upon to develop the “spirit” of solidarity. There is no indication about legal-constitutional effects—in striking contrast to earlier invocations of the “spirit” in cases such as Van Gend or Les Verts, which paved the way for constitutional innovations on the part of judges.138 That line of argument was followed a few weeks later in another Grand Chamber ruling that rejected the Slovak-Hungarian challenge to the relocation decisions which the Council had adopted by qualified majority vote at the height of the policy crisis in September 2015. Again, the Court paid much attention to the wording and drafting history of secondary legislation and discussed formal constitutional questions, such as the choice of legal basis, while—again, unlike the Advocate General—not spending much energy on the prescription of solidarity.139 It is difficult to imagine cases in which it would have been more appropriate to discuss the constitutional significance of art.80 TFEU than the two judgments on the legal and political reactions to the 2015/16 asylum policy crisis.140 We are left with a striking contrast between the judicial emphasis on statutory interpretation and an almost complete silence on the Treaties. Similarly, the Grand Chamber evaded pronouncing itself on the human rights dimension of humanitarian visas in X & X by declaring, on the basis of questionable arguments of statutory interpretation, the EU Visa Code and the Charter to be inapplicable.141 The General Court also declined to review the legality of the EU–Turkey Statement by concluding, again with questionable arguments, that it was a joint declaration of the Member States from a legal perspective; an appeal before the Court of Justice failed on procedural grounds.142 Thus, both cases had limited effects. Unlike other academics, I am not so much disappointed with the outcome of the cases. It seems to me that, on all five occasions, the Court had good statutory and constitutional reasons on its side why the outcome might have been decided correctly, although judges should have had the courage to move beyond 133 AG Sharpston in S v Slovenia (C-490/16) EU:C:2017:443 grounded her Opinion in secondary law by means of statutory interpretation. 134 See Jafari (C-646/16) EU:C:2017:586 at [93]–[100]; and S v Slovenia (C-490/16) EU:C:2017:585 at [36]–[42]. 135 In practice, the rules are notoriously ineffective; recent German data show that less than 10 per cent of all transfers are realised; see Government, Response to a Parliamentary Question, Bundestag doc. 19/921 of 26 February 2018. 136 See, for instance, E. Küçük, “The Principle of Solidarity and Fairness in Sharing Responsibility” (2016) 22 E.L.J. 448, 454–463; and V. Moreno-Lax, “Solidarity’s Reach” (2017) 24 M.J.E.C.L. 740, 751–756. 137 Jafari (C-646/16) EU:C:2017:586 at [100]. 138 See Thym, “Judicial Maintenance of the Sputtering Dublin System on Asylum Jurisdiction” (2018) 55 C.M.L. Rev. 549, 561–563. 139 See Slovak Republic v Council (C-643/15) EU:C:2017:631; and H. Labayle, “Solidarity is not a Value”, EU Immigration and Asylum Law Blog (11 September 2017). 140 Judges also did not comment extensively on the Slovak-Hungarian invocation of “national identity”; see Carlier and Lebœuf, “Droit européen des migrations” (2015) Journal de droit européen 95, 104–105. 141 See X v Belgium (C-638/16 PPU) EU:C:2017:173. 142 See NF v European Council (T-192/16) EU:T:2017:128; and NF v European Council (C-208/17 P-C-210/17 P) EU:C:2018:705. (2019) 44 E.L. Rev. April © 2019 Thomson Reuters and Contributors Role of the ECJ in Immigration, Asylum and Border Control Policy 155 a formalistic denial of jurisdiction in X & X and on the EU–Turkey Statement. They should have discussed whether co-operation with Turkey was compatible with primary and secondary law and explained why the Charter does not allow for extraterritorial asylum applications, which an individual right to a humanitarian visa would entail de facto.143 When it comes to art.80 TFEU, the provision is legally binding, and yet judges might overreach their constitutional legitimacy for theoretical, doctrinal and operational reasons if they declared existing rules illegal and deducted a precise policy blueprint from the principle of solidarity.144 It would be wrong to assume that constitutional adjudication will normally vindicate the position of migrants. Even if the outcome can be defended, judges should have explained why that is the case. Silence on the constitutional dimension of important cases might be rationalised as the result of internal disputes about how to justify a consensual outcome if it happened once or twice, but it becomes a general phenomenon when the Grand Chamber repeatedly behaves like an administrative tribunal in cases with a constitutional dimension.145 We are left with the impression that judges have lost confidence in the law as the fabric of the integration process. They defend its administrative integrity as an instrument of governance, but lose sight of its broader constitutional function.146 That is not to say that judges should claim a monopoly on constitutional developments. It can be a constitutional virtue to emphasise that the Treaties entrust political actors with certain decisions. However, ignoring the Treaties is the wrong approach. After all, the EU aspires to be a democracy, albeit a constitutional one, in which judges stand ready to explore the constitutional limits of legislative choices. Explaining judicial self-restraint It seems to me that there are at least five possible explanations for the lack of “constitutional imagination”. First, judges might perceive the constitutional debate to be largely academic in the sense of being irrelevant for the outcome given that there are good doctrinal arguments why all cases mentioned before might have been decided correctly at the end of the day. In the case of the Dublin III Regulation, judges managed to present a balanced solution by other means, without recourse to the principle of solidarity, when they decided in parallel cases that transfers to states at the external border can only be realised within a limited time frame and are prohibited thereafter.147 Secondly, the silence on the Treaties may be a sign of deference towards ongoing legislative debate. Indeed, the political institutions were discussing a reform of both the Dublin system and the Visa Code in parallel to the above-mentioned judgments; they even considered whether to introduce humanitarian visas.148 Judges might have wished not to interfere with these debates, which have not been completed so far. There is empirical literature that judges in Luxembourg are generally eager to listen to the political 143 X v Belgium (C-638/16 PPU) EU:C:2017:173; [2017] 3 C.M.L.R. 15 at [49]–[50] hints at that argument, which doctrinally would have had to consider arts 4 and 18 of the Charter together with their territorial scope in relation to the ECHR and in light of art. 52.3 of the Charter. 144 See D. Thym and E. (Lilian) Tsourdi, “Searching for Solidarity in the EU Asylum and Border Policies” (2017) 24 M.J.E.C.L. 605, 609–612. 145 The same can be said of recent citizenship case law; see N. Nic Shuibhne, “Limits Rising, Duties Ascending” (2015) 52 C.M.L. Rev. 889. 146 See L. Azoulai, “‘Integration Through Law’ and Us” (2016) 14 ICON 449, 457–459; and the harsh critique by J.H.H. Weiler, “Deciphering the Political and Legal DNA of European Integration” in J. Dickson and P. Eleftheriadis (eds), Philosophical Foundations of European Union Law (Oxford: Oxford University Press, 2012), pp.137–158. 147 Cf. Mengesteab (C-670/16) EU:C:2017:587 at [41]–[62]; Shiri (C-201/16) EU:C:2017:805 at [26]–[35]; and Thym, “Judicial Maintenance of the Sputtering Dublin System on Asylum Jurisdiction” (2018) 55 C.M.L. Rev. 549, 566–567. 148 See EP doc. PE619.272v01-00 of 19 March 2018, which was not supported by the plenary; on Dublin, see Commission, COM(2016) 270. (2019) 44 E.L. Rev. April © 2019 Thomson Reuters and Contributors 156 European Law Review institutions, not only in migratory matters.149 Such deference may be particularly appropriate during ongoing policy debates on future reform measures.150 Thirdly, legal academics tend to consider courts in isolation, although one can defend a more generic argument that our understanding of constitutional norms and principles results from a co-creation of judicial and political actors.151 For our purposes, this implies that even a vague Treaty regime could gradually turn into a robust policy concept. A constitutional vision for migration, which was absent at the beginning, might possibly be developed over the years—in the same way as the internal market as we know it today emerged and evolved on the basis of political debates and legal developments from the 1970s onwards.152 So far, at least, this has not happened. Like the ECJ, the political actors are uncertain or disagree on how to move forward. The five year plans promulgated by the European Council mirror the indecisiveness of the Treaty objectives mentioned earlier.153 They may have provided for policy substance through the adoption of a large number of secondary laws, but they failed to establish a coherent overall concept.154 The same applies to many pieces of secondary legislation, which were often the subject of intense political debates and pursue diverse objectives via compromise solutions.155 Fourthly, the primary concern of judges in Luxembourg at this juncture might be the survival of the European project and the effectiveness of the supranational legal order at a time when some governments openly reject compliance with secondary legislation, such as the relocation decisions. In such a scenario, it can be a wise tactic to spend the judicial capital on the defence the administrative integrity of supranational law as an instrument of governance, even if that entails that judges close their eyes to the EU Treaties’ broader constitutional function at the moment. Such a tactic might help explain why the Court behaves carefully on migration and asylum, even though, at the same time, it renders prominent rulings with important constitutional innovations on other segments of the area of freedom, security and justice, such as criminal law or police co-operation.156 Finally, judges might feel that it would overstretch their institutional legitimacy to decide questions which are salient in the domestic political context. Legislation and court cases on migratory issues can have socio-economic, political and cultural repercussions; you can win or lose elections nowadays depending on what you say about migration. To rule on the relocation of refugees is not the same as an innovative judgment on technical internal market law.157 Such salience entails that it is not only classic political actors, See C. Carrubba and M. Gabel, International Courts and the Performance of International Agreements: A General Theory with Evidence from the European Union (Cambridge: Cambridge University Press, 2014); and O. Larsson and D. Naurin, “Judicial Independence and Political Uncertainty” (2016) 70 International Organization 1. 150 Another classic example is Unión de Pequeños Agricultores v Council (C-50/00 P) EU:C:2002:462; [2003] Q.B. 893 at [45]. 151 See D. Kostakopoulou, “Co-Creating European Union Citizenship” (2012-13) 15 C.Y.E.L.S. 255; as well as D. Thym and D. Kostakopoulou, “The Non-Simultaneous Evolution of Citizens’ Rights” in Questioning EU Citizenship (2017), pp.309–322. 152 See G. Majone, Dilemmas of European Integration (Oxford: Oxford University Press, 2005); and S. Weatherill, The Internal Market as a Legal Concept (Oxford: Oxford University Press, 2017). 153 The Tampere Guidelines of 1999 were more liberal than the ones declared in The Hague 2004 or in the Stockholm Programme of 2009—reflecting the policy priorities of the day; see Murphy and Acosta Arcarazo, “Rethinking Europe’s Freedom, Security and Justice” in EU Security and Justice Law (2014), pp.4–8. 154 It may be no coincidence, therefore, that the European Council limited itself to some very vague and abstract statements in Ypres in 2014. 155 Remember the fierce debates on integration, the relationship between long-term resident status and Union citizenship or the orientation of labour migration rules traced by J. Mourão Permoser, “Redefining Membership” (2017) 43 J.E.M.S. 2536, 2543–2549. 156 I am grateful to Valsamis Mitsilegas for reminding me of that cleavage. 157 EU law and the ECJ had thrived at a time when most decisions were not salient; cf. L. Hooghe and G. Marks, “A Postfunctionalist Theory of European Integration” (2009) 39 British Journal of Political Science 1; and the 149 (2019) 44 E.L. Rev. April © 2019 Thomson Reuters and Contributors Role of the ECJ in Immigration, Asylum and Border Control Policy 157 such as the Member States, who are the interlocutors of courts.158 Instead, any attempt to develop constitutional values, such as a thick form of transcontinental solidarity or an enhanced level of refugee protection beyond the threshold of human rights, cannot be realised by judges alone.159 Innovative constitutional jurisprudence must be embedded in political processes and social practices if it does not want to remain a “hollow hope”.160 The law will not do the trick if we want the constitutional foundations of EU migration law to evolve.161 It requires broader societal “constitutional imagination”, which legal academics and judges cannot bring about and which the EU lacks at this juncture. Conclusion The EU as we know it today is, partly at least, a creation of judges in Luxembourg, and it was widely assumed among academic observers that the ECJ would revamp the legal foundations of immigration, asylum and border control policy. This contribution set out to critically assess this hypothesis. While we found instances of dynamic interpretation, especially among the early rulings, judges have turned more cautious in recent years. A first explanation relates to the structure of primary law. The EU Treaties establish a distinct Treaty regime for migration which differs from the internal market and endows the legislature with a principled discretion. On that basis, the case law can be described as a process of discovery recognising the specificities of primary law. In the Court’s reasoning, the area of freedom, security and justice was gradually being emancipated from the internal market and citizenship. To recognise that the legislature has discretion does not entail that third-country nationals have no guarantees on their side. Human rights feature prominently in many ECJ judgments, and yet judges have not corrected legislative choices on many occasions. Closer inspection of the constitutional infrastructure demonstrates why that is the case. Human rights in the Charter reiterate guarantees in the ECHR in core areas of migration law, such as family reunification or non-refoulement obligations. Judges in Luxembourg followed their peers in Strasbourg in recognising that states are authorised to manage migratory movements. There are only a handful of ECJ rulings that transcend the legacy of the ECHR case law and lay down extended guarantees, for instance on judicial review. In areas in which human rights do not vindicate a different outcome, judges aim at following the position of the legislature. Much of the case law is defined by an “administrative mindset”, with judges focusing on the diverse arguments of statutory interpretation, such as the wording, general scheme or the drafting history of secondary legislation. Corresponding arguments pervade most ECJ judgments on migration. Orientation at the legislature involves that the concept of individual statutory rights will not usually result in judges correcting legislative choices. There are examples of dynamic evolution, but they usually remain within the confines of the basic structure of secondary laws. The “administrative mindset” extends to the recent policy crisis. In a series of judgments on core aspects of asylum policy, the ECJ continued its focus on statutory interpretation and refrained from any meaningful engagement with constitutional contributions to S. Hutter et al. (eds), Politicising Europe. Integration and Mass Politics (Cambridge: Cambridge University Press, 2016). 158 See D. Thym, “The ‘Refugee Crisis’ as a Challenge of Legal Design and Institutional Legitimacy” (2016) 53 C.M.L. Rev. 1545, 1567–1572; and N. Walker, “The Place of European Law” in G. de Búrca and J.H.H. Weiler (eds), The Worlds of European Constitutionalism (Cambridge: Cambridge University Press, 2012), p.57 at pp.79–94. 159 Academics working on asylum occasionally postulate that the “spirit” of art.78(1) TFEU mandates a specific policy design without, however, discussing constitutional factors which might facilitate or complicate such a function; cf., by way of example, V. Moreno-Lax, “Life after Lisbon” in Acosta Arcarazo and Murphy, EU Security and Justice Law (2014), p.146 at p.148. 160 G.N. Rosenberg, The Hollow Hope: Can Courts Bring about Social Change?, 2nd edn (Chicago: University of Chicago Press, 2008); and see fn.123 above. 161 Of course, the law does not only react, it also influences societal debates; see S. Bonjour, “Speaking of Rights” (2016) 38 Law & Policy 328, 340–344. (2019) 44 E.L. Rev. April © 2019 Thomson Reuters and Contributors 158 European Law Review norms, such as the principle of solidarity. We are confronted with a lack of “constitutional imagination” when judges focus on the administrative integrity of law as an instrument of governance, while losing sight of its broader constitutional function. Underlying reasons transcend the interaction with the political institutions. The salience of political debates on migration arguably entails that legal developments are embedded in broader debates. Constitutional values interact with political processes and societal practices. At this juncture, these contextual factors do not support constitutional innovation on the part of judges. (2019) 44 E.L. Rev. April © 2019 Thomson Reuters and Contributors