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Human Rights Challenges to European Migration Policy / Chapter 2 – Ensuring Liberty and Freedom of Movement
Human Rights Challenges to European Migration Policy / Chapter 2 – Ensuring Liberty and Freedom of Movement
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1–14
Titelei/Inhaltsverzeichnis
1–14
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15–27
Introduction: Nature and Purpose of this Study
15–27
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0.1 Why re-mapping the role of Human Rights in European migration policy?
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0.2 What is our understanding of ‘Human Rights’?
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0.3 What do we mean by ‘European Migration Policy’?
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0.4 What do we mean by the ‘challenges’ identified in each chapter?
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0.5 What are the sources of the ‘legal evaluation’ provided in each chapter?
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0.6 What is the nature of the ‘recommendations’ provided in each chapter?
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28–63
Chapter 1 – Ensuring Access to Asylum
28–63
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1.1 Structural challenges and current trends
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Trend 1: Avoiding jurisdiction through cooperative externalization of mobility control
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Trend 2: Contesting jurisdiction by failing to comply with Human Rights obligations
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Trend 3: Transferring jurisdiction by referring migrants to other States
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1.2 Legal evaluation
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1.2.1 General legal framework regarding access to asylum
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1.2.2 Specific issue: Attributing responsibility for acts of third countries
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1.2.3 Specific issue: ‘Push-backs’ on the High Seas and at land borders
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1.2.4 Specific issue: Entry of vessels into the territorial waters and disembarkation at EU ports
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1.2.5 Specific issue: Limits to ‘protection elsewhere’
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1.2.6 Specific issue: Allocating asylum jurisdiction within the EU (Dublin system)
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1.2.7 Specific issue: International obligations to provide for safe and legal access to asylum?
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1.3 Recommendations
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Recommendation 1: Strictly condition cooperation with third countries on Human Rights compliance
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Recommendation 2: End push-backs and closure of ports
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Recommendation 3: Establish a high standard for the assumption of safe third countries
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Recommendation 4: Keep the Dublin system flexible to effectively ensure access to asylum
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Recommendation 5: Establish safe and legal pathways to asylum in the EU
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64–113
Chapter 2 – Ensuring Liberty and Freedom of Movement
64–113
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2.1 Structural challenges and current trends
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Trend 1: More frequent and systematic use of detention for a wider range of reasons
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Trend 2: Increasing use of area-based restrictions not amounting to detention
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Trend 3: Persistent pattern of problematic conditions of detention
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2.2 Legal evaluation
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2.2.1 General framework: The rights to liberty, to freedom of movement, and to adequate treatment
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2.2.2 Specific issue: Detention grounds
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2.2.3 Specific issue: Border Procedures
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2.2.4 Specific issue: Area-based restrictions
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2.2.5 Specific issue: Detention conditions
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2.3 Recommendations
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Recommendation 1: Enact horizontal provisions on detention grounds
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Recommendation 2: Prohibit ‘border procedures’ based on detention
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Recommendation 3: Specify legal safeguards for area-based restrictions
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Recommendation 4: Ensure adequate conditions in immigration detention and reception centers
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Recommendation 5: Prohibit detention of persons in situations of particular vulnerability
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114–142
Chapter 3 – Guaranteeing Procedural Standards
114–142
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3.1 Structural challenges and current trends
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Trend 1: Denial of procedural standards for decisions on admission
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Trend 2: Deportation procedures without adequate procedural guarantees
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Trend 3: Blurring accountability by agencification of EU migration policy
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3.2 Legal evaluation
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3.2.1 General framework
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3.2.2 Specific issue: Application of procedural standards on visa decisions
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3.2.3 Specific issue: Decisions on territorial admission at land and sea borders
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3.2.4 Specific issue: Scope of procedural safeguards in the Return Directive
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3.2.5 Specific issue: Monitoring of deportations by EU Member States
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3.2.6 Specific issue: Accountability of EU agencies
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3.3 Recommendations
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Recommendation 1: Provide comprehensive procedural safeguards for visa applications
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Recommendation 2: Clarify and strengthen procedural guarantees at the borders
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Recommendation 3: Guarantee sufficient procedural rights when terminating residence
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Recommendation 4: Guarantee a right to an effective remedy against EU agencies
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143–173
Chapter 4 – Preventing Discrimination
143–173
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4.1 Structural challenges and current trends
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Trend 1: Increasing sectoral divergence within the Europeanized fields of legal migration
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Trend 2: Contradictory policy choices in respect of the asylum status in the EU
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4.2 Legal evaluation
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4.2.1 General framework: Three objectionable grounds of distinction among migrants (‘race’, nationality, immigration status)
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4.2.2 Specific issue: Privileged and non-privileged nationalities in EU migration law
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4.2.3 Specific issue: Differential treatment in respect of social assistance
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4.2.4 Specific issue: Differential treatment among beneficiaries of international protection
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4.3 Recommendations
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Recommendation 1: Systematically ensure non-discrimination regarding social assistance
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Recommendation 2: Eliminate any discrimination among persons granted international protection
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Recommendation 3: Follow a legislative approach guided by the ‘Leitbild’ of status equality
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174–207
Chapter 5 – Preserving Social and Family Ties
174–207
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5.1 Structural challenges and current trends
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Trend 1: Requirements of socio-cultural integration are used to deny family reunification
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Trend 2: Settled migrants are subject to security-driven policies of expulsions
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Trend 3: Efforts to enforce irregular migrants’ return disregard their social and family ties
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5.2 Legal evaluation
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5.2.1 General framework: protection of migrants’ family and social ties
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5.2.2 Specific issue: integration requirements restricting family reunifications
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5.2.3 Specific issue: protection of settled migrants’ right to abode
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5.2.4 Specific issue: obligations to regularize irregular migrants
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5.3 Recommendations
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Recommendation 1: Prohibit integration requirements that amount to violations of the right to family reunification
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Recommendation 2: Facilitate access to the status provided by the Long-term Residents Directive
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Recommendation 3: Develop a comprehensive legislative framework on regularizations
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208–242
Chapter 6 – Guaranteeing Socio-Economic Rights
208–242
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6.1 Structural challenges and current trends
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Trend 1: Policies to prevent movements of asylum-seekers within the EU build on planned destitution
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Trend 2: Measures to enforce returns rely on creating ‘hostile environments’
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Trend 3: Persistent pattern of exploitation of irregular migrants in informal labor relations
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6.2 Legal evaluation
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6.2.1 General legal framework regarding human dignity of margizens
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6.2.2 General legal framework regarding labor rights of irregular migrant workers
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6.2.3 Specific issue: Human Rights limits to sanctioning ‘secondary movements’
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6.2.4 Specific issue: Human Rights limits to sanctioning non-cooperation in return proceedings
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6.2.5 Specific issue: Human Rights obligations to combat exploitation of irregular migrants
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6.3 Recommendations
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Recommendation 1: Stop using restrictions to socio-economic rights to sanction ‘secondary movements’ of asylum seekers
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Recommendation 2: Provide equal treatment between asylum seekers and irregular migrants in respect of socio-economic rights
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Recommendation 3: Adopt a rights-based approach toward undocumented irregular migrants to better protect them from exploitation and forced labor
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243–266
Chapter 7 – Fostering Human Rights Infrastructure
243–266
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7.1 Structural challenges and current trends
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Trend 1: Criminalization of civil society actors supporting migrants
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Trend 2: Populist pressure on judges protecting the rights of migrants
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Trend 3: Challenges to the ECtHR as a guardian of migrants’ Human Rights
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7.2 Legal evaluation
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7.2.1 General legal framework regarding Human Rights infrastructure
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7.2.2 Specific issue: Criminalization of private actors involved in SAR activities and other migrants’ Human Rights defenders in civil society
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7.2.3 Specific issue: Requirements to strengthen migrants’ Human Rights defenders
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7.2.4 Specific Issue: Obligations and options to ensure the independence of judges deciding on migration law cases
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7.3 Recommendations
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Recommendation 1: Strengthen migrants’ Human Rights defenders by amending the Facilitation Directive and adopting consistent EU supporting policies
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Recommendation 2: Take a firm stance on violations of EU migration law
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Recommendation 3: Strengthen the role of the ECtHR as a ‘migrants court’ by acceding to the ECHR
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267–290
Summary
267–290
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1. Ensuring Access to Asylum
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2. Ensuring Liberty and Freedom of Movement
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3. Guaranteeing Procedural Standards
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4. Preventing Discrimination
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5. Preserving Social and Family Ties
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6. Guaranteeing Socio-Economic Rights
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7. Fostering Human Rights Infrastructure
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291–292
Annex: Panel of Experts
291–292
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Individual Experts
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Expert Institutions
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Human Rights Challenges to European Migration Policy , page 64 - 113
Chapter 2 – Ensuring Liberty and Freedom of Movement
Autoren
Jürgen Bast
Frederik von Harbou
Janna Wessels
DOI
doi.org/10.5771/9783748926740-64
ISBN print: 978-3-8487-8244-4
ISBN online: 978-3-7489-2674-0
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doi.org/10.5771/9783748926740-64
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