Violeta Moreno-Lax
- Published in print:
- 2017
- Published Online:
- October 2017
- ISBN:
- 9780198701002
- eISBN:
- 9780191770517
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/oso/9780198701002.003.0007
- Subject:
- Law, Human Rights and Immigration
This chapter will catalogue the multiple ways in which human rights penetrate the EU legal order and the different functions they play qua (internalised/’Europeanised’) ‘fundamental rights’, both as ...
More
This chapter will catalogue the multiple ways in which human rights penetrate the EU legal order and the different functions they play qua (internalised/’Europeanised’) ‘fundamental rights’, both as standards of validity and as means of interpretation of EU acts. The main preoccupation is to identify the sources of fundamental rights obligations, retrace their origin and overall significance within the EU legal system, and determine the rules relevant to their interpretation and application. The ‘integrated’ or ‘cumulative standards’ approach will be developed against this background. According to this method, the precise level of protection that Charter rights afford will be determined by reference to Articles 52 and 53 thereof, taking the ECHR, other ‘international obligations common to the Member States’ (Recital 5 CFR), and any relevant ‘autonomous requirements’ of EU law into account. Drawing on post-Lisbon case law, it will be shown how any other approach fails to ensure compliance with all relevant requirements simultaneously. This technique will inform assessments in chapters of Part II.Less
This chapter will catalogue the multiple ways in which human rights penetrate the EU legal order and the different functions they play qua (internalised/’Europeanised’) ‘fundamental rights’, both as standards of validity and as means of interpretation of EU acts. The main preoccupation is to identify the sources of fundamental rights obligations, retrace their origin and overall significance within the EU legal system, and determine the rules relevant to their interpretation and application. The ‘integrated’ or ‘cumulative standards’ approach will be developed against this background. According to this method, the precise level of protection that Charter rights afford will be determined by reference to Articles 52 and 53 thereof, taking the ECHR, other ‘international obligations common to the Member States’ (Recital 5 CFR), and any relevant ‘autonomous requirements’ of EU law into account. Drawing on post-Lisbon case law, it will be shown how any other approach fails to ensure compliance with all relevant requirements simultaneously. This technique will inform assessments in chapters of Part II.
Violeta Moreno-Lax
- Published in print:
- 2017
- Published Online:
- October 2017
- ISBN:
- 9780198701002
- eISBN:
- 9780191770517
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/oso/9780198701002.003.0011
- Subject:
- Law, Human Rights and Immigration
This chapter summarizes the overall conclusions to which the findings arrived at in previous chapters lead. The research points to a persistent disregard of the particular position of exiles in ...
More
This chapter summarizes the overall conclusions to which the findings arrived at in previous chapters lead. The research points to a persistent disregard of the particular position of exiles in relation to pre-border controls. It emphasizes how the general references to human rights and refugee law introduced in each of the instruments analyzed in Part I are insufficient to guarantee the rights identified in Part II. While ‘integrated border management’ (IBM) measures include some recognition of their potential impact on access to asylum in the Member States, no provision is made for adequate procedures and remedies through which compliance with the protection obligations imposed by EU law would be ensured in practice. On this basis, the chapter closes with a final assessment of IBM tools as currently operationalised, suggesting that either these be adapted to the fundamental rights acquis or abandoned as incompatible with the founding values of the EU.Less
This chapter summarizes the overall conclusions to which the findings arrived at in previous chapters lead. The research points to a persistent disregard of the particular position of exiles in relation to pre-border controls. It emphasizes how the general references to human rights and refugee law introduced in each of the instruments analyzed in Part I are insufficient to guarantee the rights identified in Part II. While ‘integrated border management’ (IBM) measures include some recognition of their potential impact on access to asylum in the Member States, no provision is made for adequate procedures and remedies through which compliance with the protection obligations imposed by EU law would be ensured in practice. On this basis, the chapter closes with a final assessment of IBM tools as currently operationalised, suggesting that either these be adapted to the fundamental rights acquis or abandoned as incompatible with the founding values of the EU.
Violeta Moreno-Lax
- Published in print:
- 2017
- Published Online:
- October 2017
- ISBN:
- 9780198701002
- eISBN:
- 9780191770517
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/oso/9780198701002.001.0001
- Subject:
- Law, Human Rights and Immigration
This monograph examines the interface between extraterritorial border surveillance, migration management, and asylum seeking under EU law. The final goal is to determine the compatibility of ...
More
This monograph examines the interface between extraterritorial border surveillance, migration management, and asylum seeking under EU law. The final goal is to determine the compatibility of pre-entry controls, carried out in the form of Schengen visas, carrier sanctions (with or without assistance from ILOs), and maritime interdiction, with the fundamental rights acquis of the EU, in particular the right to protection against refoulement, the right to asylum, and the rights to good administration and effective judicial protection enshrined in the Charter of Fundamental Rights. The conflictual assertion contained in Tampere and successor programmes that the Union shall remain ‘open’ to those seeking access to it in search of protection, but, at the same time, ‘counteract illegal immigration and cross-border crime’ provides the background to this research. The result has been an ambiguous regulation of access to EU territory for asylum purposes. Two sets of rules have developed simultaneously, which are difficult to reconcile: one set assimilates protection seekers to the generic category of ‘third-country nationals’ subject to Schengen admission criteria, with another set containing references to ‘special provisions’ applicable to exiles, leading to a situation where up to 90% of refugee arrivals occur through irregular (unsafe) channels, as smuggled or trafficked migrants. In these circumstances, elucidating the exact reach of EU international protection obligations and the articulation between EU border/pre-border norms and EU fundamental rights becomes essential. The monograph thus strives to determine the content of the specific responsibilities of the Member States in this context and establish their implications for the ‘integrated border management’ system the Union is committed to realise.Less
This monograph examines the interface between extraterritorial border surveillance, migration management, and asylum seeking under EU law. The final goal is to determine the compatibility of pre-entry controls, carried out in the form of Schengen visas, carrier sanctions (with or without assistance from ILOs), and maritime interdiction, with the fundamental rights acquis of the EU, in particular the right to protection against refoulement, the right to asylum, and the rights to good administration and effective judicial protection enshrined in the Charter of Fundamental Rights. The conflictual assertion contained in Tampere and successor programmes that the Union shall remain ‘open’ to those seeking access to it in search of protection, but, at the same time, ‘counteract illegal immigration and cross-border crime’ provides the background to this research. The result has been an ambiguous regulation of access to EU territory for asylum purposes. Two sets of rules have developed simultaneously, which are difficult to reconcile: one set assimilates protection seekers to the generic category of ‘third-country nationals’ subject to Schengen admission criteria, with another set containing references to ‘special provisions’ applicable to exiles, leading to a situation where up to 90% of refugee arrivals occur through irregular (unsafe) channels, as smuggled or trafficked migrants. In these circumstances, elucidating the exact reach of EU international protection obligations and the articulation between EU border/pre-border norms and EU fundamental rights becomes essential. The monograph thus strives to determine the content of the specific responsibilities of the Member States in this context and establish their implications for the ‘integrated border management’ system the Union is committed to realise.
