I have just published an article with the Columbia Journal of European Law, Vol. 24 (3) 2018. The article argues that the extreme politicization of refugee law has prompted the alienation of adjudication by courts and administrative agencies as the relevant institutions to develop refugee law. The Article further underscores the trend towards diminished the procedural rule of law, including the right of appeal and the opportunity to receive legal aid. It suggests that this trend diminishes the European constitutional values of the rule of law, respect for human rights, justice, and solidarity. The Article considers the potential impact of the Proposal for a Common Procedure for International Protection presented by the European Commission in July 2016 and the subsequent response by the regional courts.
Part I provides an overview of the components of the procedural rule of law in the context of asylum. Part II presents a case study from Norway illustrating the Parliament’s immediate and fundamental violation of the principle of access to an independent decision-making body in the context of a hasty reform of immigration law in response to an influx of asylum seekers on the Russian border in 2015. Part III describes the weakening of access to legal aid for asylum seekers within Europe as well as in other regions. This correlates with the escalation of implementation of detention and deportation (including children) without the guarantee of effective remedy
The conclusion calls for reflection on whether European constitutional values should be deemed aspirational in light of the fact that the normative and institutional reforms undertaken in response to the recent arrival of refugees run contrary to the principles which once enabled the region to win the Peace Prize in 2012, “for over six decades [having] contributed to the advancement of peace and reconciliation, democracy and human rights in Europe.”The Article advocates a recommitment to European constitutional values and suggests measures to strengthen respect for the rule of law, human rights, justice, and solidarity, underscoring the importance of engagement by courts at both regional and national levels and training of judges and adjudicators. The article is available here