8.1 Introduction

EU constitutional rules require member states to be constitutional democracies. Yet, a populist authoritarian has, following Carl Schmitt’s rulebook, captured the constitutional state in Hungary and turned it into an autocracy. It need not have happened, the 2015 ‘migration crisis’ notwithstanding. The new authoritarian regime and its brutal anti-immigration rules serve the sole purpose: to secure prime minister Viktor Orbán’s firm hold on power.

European Union politicians hold the assumption that every EU member state is a functioning democracy. Therefore, member states are permitted to ignore each other’s faults, knowing that democracies are self-correcting. While it is true that democracies are capable of self-correction, today, Hungary cannot correct its constitutional problems itself.Footnote ¹ In the 2010 election, the Fidesz-KDNP party got 52.73% of the list votes, but – due to the individual districts where the winner takes all – in Parliament gained 67.88% of the seats that secured constitutional supermajority, which it has mostly retained to the present day.Footnote ²

Since returning to office (he had led the Hungarian government previously, from 1998 to 2002), Orbán has been working toward creating an authoritarian system.Footnote ³ His autocracy is not as dramatic as its predecessors, the twentieth-century style authoritarian systems. Opposition parties and candidates are not yet banned, and the regime does not keep hundreds in prison for political dissent. It is still possible to ‘protest by word of mouth …, or if all else fails, by the extreme form of exit, leaving the country’.Footnote ⁴ Yet, the election law tricks,Footnote ⁵ the campaign finance laws,Footnote ⁶ and the electoral bodies dominated by persons loyal to the leader may cast doubt on the fairness of the elections.Footnote ⁷ Moreover, there are no functioning checks on the executive. Many observers doubt the ordinary judiciary’s independence,Footnote ⁸ and hold that the Constitutional Court is effectively neutralised as a check on governmental power.Footnote ⁹

The rise of authoritarianism is closely related to Orbán’s political calculations, driven by a sole purpose: to retain power and control. The restrictive asylum laws and policies are just one instrument among the many used when convenient to serve this goal. The restrictions are not a result of the domestic law’s organic development or impacts of the EU acquis. They need not have happened, all the transit through Hungary of large numbers of irregular migrants in 2015 notwithstanding. Since 2010, Hungary’s approach to forced migration has been changed substantially: a genuine international commitment gave way to an exclusionist, ethnicist position.Footnote ¹⁰ This development has been coupled with the discourse of the ‘threatening other’. The ‘migrant’ in the political discourse is separated from its scholarly or legal meaning and is identified with a potential terrorist or at least a criminal, who at the same time threatens to overwhelm the thousand-year-old national ‘Christian’ culture and replace it with their own.

This chapter, first, locates this Orbanian discourse and measures it in a Schmittian paradigm. The theory of Carl Schmitt helps us make sense of Hungarian constitutional developments because Orbán has continuously concentrated on the political friend and the foe to maintain a permanent ‘crisis’ situation. Second, the chapter shows how the authoritarian goals determined the management of regular migration and the control of irregular migration and especially asylum. Most of the rules applicable during the fictitious ‘state of crisis caused by mass immigration’ contradict the EU measures and breach international asylum law. The changes introduced under the pretext of anti-pandemic measures in July 2020 eliminated access to protection.

One might wonder whether it makes a difference that all this is happening in an EU member state. The chapter argues that this ‘external constraining force’ is relevant both in the context of migration and the possibilities of democratic resistance.Footnote ¹¹ There is a potential for legal resistance on the international and EU level, and domestically, techniques of resistance developed during feudalism (e.g., the tradition of free cities or ‘passive resistance’) and socialism (e.g., samizdat) are to be mixed with those based on the leftover of the rule of law regime.

8.2 Following the Schmittian Rulebook

Today, scholars identify the behaviour of authoritarian nationalists with the term ‘populism’. For instance, Lazaridis and KonstaFootnote ¹² – after noting the divergent interpretations of the term ‘populism’Footnote ¹³ – set out three general characteristics of today’s populists: they speak on behalf of the national community as if it was a culturally, religiously, and linguistically homogenous genuine community sharing the same values; they accuse the political elite and the intellectuals of being undemocratic, ‘incapable, unproductive, and privileged, distant or alienated from the people, or lacking in the plebiscitarian quality of common sense’;Footnote ¹⁴ and identify a threatening other – one or more groups whose members allegedly undermine the community’s values or prosperity.

Indeed, today’s populist authoritarian nationalists concentrate on the concept of identity as a tool for determining who belongs to the mass that may be defined in ethnic, religious or linguistic terms. They use the language of the malign ‘other’, in which the other is a group considered not to belong to the mass because it differs in some key characteristics. However, this claim of today’s populist authoritarian nationalists is not new. They go back at least to Carl Schmitt’s interwar theory of ‘democracy’,Footnote ¹⁵ at the heart of which is the idea of a unified will of the homogeneous people, embodied in the unitary sovereign’s distinction between the friend and foe.Footnote ¹⁶ Schmitt held that democracy, properly understood, is an attempt to establish a ‘genuine identity’ between rulers and the ruled.Footnote ¹⁷ The ruled are the people who exist in their ethnic and cultural ‘oneness’,Footnote ¹⁸ which ensures the community’s strict internal homogeneity. The ruler may be a directly elected unitary sovereign who acts as an authentic representative of the people by symbolically incarnating the identity of the people and whose primary mission is to guarantee the political entity’s self-preservation.

The most appealing part of the Schmittian conception for today’s populist authoritarian nationalists is that at the basis of every constitution is an indispensable, unitary sovereign, who, at the moment of an unpredictable crisis, can break free of the rule of law and assert his pre-legal authority. This situation is what Schmitt calls the state of exception (Ausnahmezustand), which refers to a completely abnormal situation, where the continued application of the normal legal rules and rights prevents effective action from ending the exception.

Notably, there is a difference between the state of emergency and the state of exception. The notion of the state of emergency refers to public emergencies in democracies, such as national security crises, including, for instance, terrorist attacks, but also economic catastrophes and technological or natural disasters, such as pandemics. During a state of emergency, democratic state institutions function normally, although the distribution of power is modified in favour of the executive to manage the crisis. But a state of emergency provides only the conditions for exercising otherwise legitimate power. It is an underlying principle that ‘the executive is not permitted to use emergency powers to make any permanent changes in the legal/constitutional system’.Footnote ¹⁹ Thus, in a case of emergency, a democratic regime is typically a temporarily modified constitutional democracy. Some constitutional rights are restricted, with the primary purpose of emergency being to restore the democratic legal order and the full enjoyment of human rights.

Ausnahmezustand, however, is a lawless void when there is an order, but the order is not a normative, rather a factual one, where ‘the state remains, whereas law recedes’.Footnote ²⁰ The application of the normal legal rules and rights is suspended by the unitary sovereign’s decision on the ground that the situation is abnormal: ‘The exception is that which cannot be subsumed: it defies general codification, but it simultaneously reveals a specifically juristic element – the decision in absolute purity’.Footnote ²¹ The unitary ‘sovereign is he who decides on the exception’Footnote ²² and on ‘whether the constitution needs to be suspended in its entirety’.Footnote ²³ Thus, the state of exception is constituted by the sovereign’s personal decision: the sovereign decides both when there is a state of exception and how best to respond to that situation. That decision for Schmitt is one which is based on the political consideration of who is a friend and who is an enemy of the state.Footnote ²⁴ Instead of openly discussing competing ideas in public, the uncontrolled sovereign has the exclusive power to make political distinctions between friend and foe constantly. Schmitt asserted that the differentiation of the people from the foe was inevitable because the foe threatened the existence of the political entity. However, the ‘existential’ enemy need not be an external one; he can very well be a domestic political opponent;Footnote ²⁵ furthermore, he ‘need not be morally evil or aesthetically ugly, he need not appear as economic competitors, and it may even be advantageous to engage with him in business transactions’.Footnote ²⁶

Hence, the distinction between the political friend and foe is needed to create a ‘crisis’ situation, where the ordinary norms are suspended. As we will see in the next section, a whole array of processes has been created in Hungary since 2010 in response to some ‘crisis’ situation.

8.3 In a Permanent State of Crisis

Already the 2011 constitution of the Orbán regime – officially named ‘Fundamental Law’ – was adopted with reference to a crisis: the 2008 global financial crisis and its consequences.Footnote ²⁷ A couple of years later, citing the 2015 migrant crisis threat, the Hungarian government, alone in the EU, declared a mass migration emergency. Migration was not among the constitutionally listed situations that might justify the introduction of emergency rule. So, the government used article 15(1) of the Fundamental Law – ‘The government shall exercise powers which are not expressly conferred by laws on another state body’ – to declare a ‘state of crisis caused by mass immigration’,Footnote ²⁸ entitling itself to suspend or deny fundamental rights not only to the ‘migrants’ but to the inhabitants of the country as well. The conditions of introducing the state of crisis have never been met, as neither the numbers required for its introduction materialised nor the threats that would entitle the government to announce it even if the number of arriving irregular migrants was below the threshold.Footnote ²⁹ No other EU member state declared a state of crisis to deal with the refugee problem, not even states that were the ultimate destination of asylum-seekers. Although in 2019, the European Commission declared the migrant crisis to be over,Footnote ³⁰ the Hungarian state of crisis is still in effect. The government renews it every six months, most recently on 3 September 2021, even though the border with Serbia is hermetically sealed, and in principle not a single irregular migrant can enter Hungary’s territory.Footnote ³¹

In addition to the ‘state of crisis caused by mass immigration’, a constitutional amendment was adopted to make it possible to declare a ‘state of a terrorist threat’ to ‘manage the adverse results from the migration crisis, including threats of terrorism’. This amendment followed the Schmittian tradition: it allowed the government to declare the ‘state of a terrorist threat’ on its own, and there was no need to have the Parliament’s approval; so the government could decide both that there was a threat and how to respond to it. All this happened in a country that has not seen a severe terror attack within its borders yet. Although the government, in a demagogic way, has connected the issue of migration with the problems of terrorism, militant fundamentalism is absent in the country.Footnote ³²

Since 2015, Hungary has been in a permanent ‘state of crisis caused by mass immigration’. On top of that, in 2020, the government declared the ‘state of danger due to the coronavirus pandemic’, and later a third one, a ‘state of medical preparedness’.Footnote ³³ And with a constitutional amendment,Footnote ³⁴ a further step has been taken on the road to full-out authoritarianism. It broadens the situation in which emergencies can be declared, and government decrees become the default because the amendment erased any meaningful role for the Parliament.

In short, this section demonstrated that the way Hungary has declared a ‘state of crisis’ displays characteristics of the Schmittian state of exceptionFootnote ³⁵ characterised by a de facto unlimited authority of the executive. Looking at the interrelationship of the democratic decay and the restrictive rules on forced migration facts suggest that the restrictive rules on migration emerged as part of the larger scheme aiming at the concentration of power and generating a loyal constituency, the loyalty of which derives from the vision of a leader who protects it from the ‘foe’.

8.4 Autocratisation in the Context of Migration

8.5 Possibilities for Democratic and Legal Resistance

The democratic decay and the dismantling of the rule of law leaves little room for legal resistance and resilience. It promotes (so far peaceful) forms of democratic resistance. Let us briefly mention the latter before turning to the possibilities of the legal action.

According to medieval traditions, free cities may function as islands of freedom and may even exercise self-governance.Footnote ¹⁰⁹ The cities under opposition rule may stop the harassment of visible minorities, press the law enforcement agencies to take measures against xenophobic insults or crimes and offer NGO’s various forms of material support such as office space and access to local media. Symbolic measures of the mayor and the cities’ counsellors may refute and delegitimise the government’s ethnicist, populist propaganda. An example of such a measure is raising the EU flag again on local government buildings that had disappeared from the Parliament and the central government’s buildings long ago. Cities may shelter those few refugees who were recognised but had to leave the reception centre after thirty days without any integration assistance. Human dignity, freedom, democracy, equality, the rule of (local) law and respect for human rights, including the rights of persons belonging to minorities, may be respected and exercised locally.

Yet another form of resistance (widespread during Socialism) is maintaining an ‘alternative’ sphere of public information. Social media partly naturally provides it, but a ‘samizdat’ is again in circulation, and Radio Free Europe is back on the scene.Footnote ¹¹⁰ Besides, German state broadcaster Deutsche Welle announced the launch of Hungarian-language news programmes.Footnote ¹¹¹ Solidarity, among NGOs under pressure has gained importance, as seen, for example, in the concerted refusal to register as foreign-funded organisations.

Turning to the classical legal tactics, one may note that on the ruins of the rule of law, a few remaining independent regular courts may still protect the integrity of EU law and the interest of asylum seekers to find protection, for example, by finding that Serbia is not a safe third country, contrary to the claims of the government. Similarly, not ordering detention is within the power of an independent judge. After the Torubarov judgment, courts once again may overturn the administrative decision if the authority does not change it to recognition after the first sending back.

It is clear, though, that domestic democratic resistance would not be viable without external support. For instance, EU institutions might take a more decisive role in supporting Hungary’s re-democratisation. The reality of the ongoing Article 7(1) procedure against Hungary to date is anything but ‘nuclear’.Footnote ¹¹² It so far somewhat resembles a blunt arrow. Yet, replacing Article 7 with newer mechanisms like the ‘peer review procedure’ entailing a regular review of each member state’s rule of law performance is not a solution. Instead, European politicians should use the existing tools and improve Article 7 procedure by working transparently and using internal expertise of the European Parliament and external expertise of Council of Europe bodies. All the three major institutions of the EU (Commission, Council and the Parliament) are currently subject to serious criticism concerning their inefficient actions to stop autocratisation. It is not the task here to engage the literature on strengthening the EU to reinstate the rule of law and respect of the European values.Footnote ¹¹³ Nevertheless, four short remarks may be appropriate.

First, if the effet utile principle was to be applied, Hungary cannot veto the application of Article 7(2) TEU. According to this provision, the European Council may determine the existence of a serious and persistent breach by a member state of the values referred to in Article 2 TEU. After that, the Council could adopt effective sanctions.

Second, as guardian of the Treaty, the Commission has a duty to ensure the uniform enforcement of EU law, including the rule of law. The best tool the Commission has at its disposal to enforce it is the infringement action, which may be made more powerful to be ‘systemic’.Footnote ¹¹⁴ While infringement actions have not so far been used effectively to challenge the autocratic consolidation of a member state, the ECJ has strongly hinted that it would be open to such a challenge.Footnote ¹¹⁵

Third, the intensified use of interstate disputes under Article 259 TFEU might also be used more frequently. The article allows the EU member states to take action even when the EU Commission does not support the claim.Footnote ¹¹⁶

Fourth, budget conditionality rules linked to the rule of law are now one of the EU toolbox items. Disbursement of EU funds from the budget and Next Generation EU is tied to respect for the rule of law standards. However, its application is suspended until the ECJ has greenlighted it,Footnote ¹¹⁷ which is legally questionable and in violation of the EU’s system of checks and balances.Footnote ¹¹⁸

Significantly, however, external support in re-democratisation is not limited to the EU. European and global institutions are instrumental, although their role cannot be examined here in detail.

The ECtHR is certainly a candidate to act as a force resisting democratic decay and restrictive migration policy. Until the Grand Chamber decision in Ilias and Ahmed, it did well in condemning the protean forms of detention of asylum seekers and migrants without the right to stay in Hungary, but on the more general front of resisting democratic backsliding, its record is less impressive.Footnote ¹¹⁹ The ECtHR has never addressed the structural constitutional changes that happened during the last decade in Hungary. A few ECtHR judgements affected various aspects of the Hungarian autocratisation process, but either they failed to require the government to make structural changes,Footnote ¹²⁰ or the government refused the legal change required by the ECtHR.Footnote ¹²¹

Another short remark relates to the relative passivity of UNHCR that runs an office in Budapest and is, therefore, a close witness of the agony of the Hungarian asylum system. True, at crucial points, UNHCR has raised its voice. However, UNHCR has not been part of the visible public discourse regarding the situation; its representatives do not sit on public panels; neither do they give interviews. The reason is that UNHCR fears that it would lose access to the transit zones if it had a less low-key policy. UNHCR also believes that no rational debate with government propaganda is possible at the moment. That may be true, but one still wonders if a more direct challenge of the government could not improve the public image of asylum seekers and refugees and undermine the stream of fake news and the xenophobic framing that is part of the government indoctrination.

8.6 Conclusion

The rise of ethnonational populism and the phenomenon of autocratisation are subject to an ocean of literature. Most of it describes and analyses the Hungarian constitutional and legal changes, and some search for their causes. This chapter does not focus on these matters; instead, it gives an overview of the constitutional changes regarding migration, the abolition of the functioning asylum system and the framing of migration as a threat against which Hungary must ‘protect’ itself.

The chapter argues that the constitutional changes introduced by Orbán’s authoritarian regime can be interpreted in a Schmittian paradigm. An ever-increasing number of enemies had to be found against which the government (relying on its overweight in Parliament) equipped itself with practically unlimited powers, by way of introducing special legal orders (more specifically, by declaring a state of crisis), either by amending the Fundamental Law, or merely de facto, by ordinary Acts or even government decrees. The government has used the ‘crisis’ that has never existed to ‘justify’ the exceptional and inhuman practice developed in the transit zone, which has recently been replaced by a total ban on applying for asylum in Hungary or at its borders.

The chapter suggests that the abolition of the asylum system did not follow either from the development of the EU acquis or the large-scale arrivals in 2015, which only led to around 5000 substantive refugee status determination procedures that year and much less in the following years.Footnote ¹²² Other states where large numbers of asylum applications were submitted may have tried to avoid the increase in numbers. However, contrary to Hungary, they have not given up on the idea of a fully-fledged refugee status determination procedure. The elimination of a regular procedure guaranteeing the required reception did not follow from an internal ‘organic’ development of the Hungarian refugee law either. Hungarian asylum law was generous in some periods, especially in the early nineties and then again after the first formal Asylum Act. It only gradually became tighter, but still within the bounds of the EU acquis, perhaps except the extensive use of detention.Footnote ¹²³

Finally, the chapter addresses the strategies the civil society and the remaining independent institutions may consider when resisting autocratisation. As it is clear by now, Orbán has sacrificed the rule of law and the functioning democracy with a decent asylum system and presented migration as a threat to perpetuate a crisis that calls for the leader with extra-ordinary capabilities to protect his people. In exchange, blind trust and exceptional powers were to be offered, replacing rational discourse and a state operating within the bounds of fundamental rights, democracy, and the rule of law. The minority of the voters wanted that, but due to the electoral system, most parliamentarians are willing to maintain it in exchange for the goodwill (and rewards) offered by their (party) leader. Under these circumstances, democratic resistance and legal action may be needed. Both have limited and ever-narrowing space. As doubts arose concerning the meaningful support from the international and EU institutions, no guarantee is within sight against the continuing autocratisation that only used restrictive migration and asylum law and policy as a vehicle to promote its purely political, Schmittian goals, essentially determined by the person of Viktor Orbán.

9.1 Introduction

In 2009, Professor Mirosław Wyrzykowski published a text in which he hypothetically considered whether a crisis in the democratic order could occur in a particular Member State of the European Union, and whether there are sufficient resources to protect liberal democracy from deformation.Footnote ¹ He encouraged the reader to imagine that, as a result of democratic and free elections, a party (or a coalition) would come to power with revolutionary slogans, even if the revolution would take place only in the moral sphere, under the slogan of restoring ‘public morality’ (whatever that means). He noted that the victory of a political party proclaiming such slogans of a moral revolution, or a fundamental change in the existing status quo, usually followed a well-known pattern. Therefore, there would have to be a relatively large proportion of the population dissatisfied with the existing status quo, either lost or frustrated. At the same time, a significant number of people would not trust in the capabilities of civil society and would not understand that the modern model of power is not based on hierarchy and personification, but on cooperation and respect for the rules, that is to say, the rule of law, and not the individuals holding power.Footnote ²

Professor Wyrzykowski argued that such a revolution would presuppose total control over state institutions, elements of a democratic society, the media and the judiciary. However, such a revolution would encounter obstacles, the first of which would be the constitution, as an amendment would require either a qualified parliamentary majority or a referendum. Since it would be difficult to achieve sufficient support, political changes would have to be made by means of ordinary legislation. As the constitution and the whole state system is guarded by a constitutional court, the first thing to do was to make changes to that court, and then to the entire judiciary.Footnote ³

Until recently, such a scenario seemed to be political fiction, but then it became a reality. When Jarosław Kaczyński’s party, Law and Justice (Prawo i Sprawiedliwość – PiS), took over power in 2015, it led to a clear decay of liberal democracy. The policy of what was known as the ‘good change’ (the main slogan of PiS) affected respect for the human rights of the whole society, and certainly the rights of migrants, particularly asylum seekers.

What is more, the migration issue became the most significant element of the electoral campaigns in 2015 and 2018–2019,Footnote ⁴ as the parliamentary and local elections coincided with the mass influx of voluntary and involuntary migrants to Europe, as well as terrorist attacks in France (2015) and in Belgium (2016). In general, the migration crisis was significant in helping the Law and Justice party to win elections in 2015.

The new, populist attitude to the migration crisis and asylum seekers appeared to be a litmus test of the resilience of democratic values and human rights. It was used to check how far the policy of division into ‘us’ and ‘them’, ‘nation’ and ‘aliens’, ‘common welfare’ and ‘betrayal of national interests’ would catch on in society, and whether it could be pursued in further politics. Unfortunately, this policy and model of narration has come to be seen as a successful tactic in elections and has been continued with other minority groups (e.g. LGBT).Footnote ⁵

It is important to note that in Poland, we are not just dealing with an increase in the influence of a populist force on the political scene that is adverse to refugees and migrants, but with the takeover of all state institutions by the ruling majority. The capture of all (or almost all) of the state institutions means creating both a new internal and external policy, which is why the authors decided to consider this issue from an internal and external perspective, as Poland’s attitude to the migration phenomenon and its failure to meet its international obligations in the discussed area have appeared on international and European agendas.

In this study, the authors intend to prove that the legal and factual situation as of June/Spring 2021 does not allow the influence of the ‘good change’ on citizens to be separated from its influence on migrants (this chapter was written prior to the migration crisis at the Polish?Belorussian border of 2021). The approach to migrants’ rights must therefore be analysed in a broader pattern, in light of democratic decay as it coincides with a restrictive policy towards asylum seekers.

For this reason, the first part of the paper will show the consequences of the key organs of power being taken over by people who are not open to migrant rights. Then the problem of the interplay between the crisis of democracy caused by Law and Justice and the migration law and policies of the Polish state will be discussed. The second part is dedicated exclusively to the current policy towards migrants, and the consequences of that policy within the country and on international forums. Finally, the authors will attempt to indicate a remedy that will safeguard migrants’ rights (especially those of asylum seekers) against further erosion.

9.2 Constitutional and Political Background

9.3 The Perspective of Migration and Asylum

9.4 Conclusion

The current political and social situation in Poland gives us a real-world look at the relationship in practice between the crisis of democracy and the rights of migrants, especially asylum seekers, in an era of democratic decay. In the Polish case, we would like to stress that it is difficult to consider ‘legal resilience’ as a mitigating factor. The seizure of the public media and almost all state institutions by the ruling majority, coupled with the reduction in support for civil society organisations undoubtedly affected the situation of migrants. In fact, in the area of migration policy and migrant rights, no special bending of the rules was required. It was enough to gather in one political hand the instruments of lawmaking, law enforcement and legal interpretation to pursue the migration policy in a direction welcomed by the ruling party. At the same time, the lack of independent watchdogs has severely limited the ability to supervise these processes, especially as a hostile approach to asylum seekers also appeared outside the legal sphere, on the political and practical levels.

Our findings confirm that in the event of a populist party taking over all the state institutions, migrants’ rights cannot be considered in separation from the protection of human rights in general. Analysing the Polish experience, the breakdown of the constitutional rights system results in a decrease in migrants’ rights protection just as it does for other social groups. However, lowering the general standards of human rights protection affects migrants in particular, as they should be treated as a group of human rights holders that is more vulnerable than most. Due to their situation, they are much less able to defend their ‘general’ human rights compared to citizens. Aside from this negative impact on the general standards of human rights protection, migrants suffer added detriments to their human right to asylum and principle of non-refoulement, as well as the right to an effective remedy in the case of being pushed back at the border.

The hostile attitude of politicians on the political right towards accepting refugees and the negative message expressed through public media has resulted in an aversion to asylum seekers and refugees that has increased xenophobic sentiment in society. At the same time, law enforcement agencies have not been sensitised to combating xenophobic crimes and hate speech. The progressive exchange of judges also lowers the standard of protection in this area.

Presently, upholding the rights of migrants, refugees, and asylum seekers (including detained children) is not in the interest of the bodies responsible for eliminating discrimination and ensuring equal treatment and policy. The only exception to this is the Commissioner for Human Rights, whose term of office is coming to an end. Finally, the increasingly difficult situation of civil society organisations hurts their ability to provide support for migrants, especially in terms of legal assistance and reception.

Moreover, the two phenomena – the breakdown of democracy and the issue of migrants’ rights – appear to be complementary. They seem to interact with each other. Firstly, the migration crisis was exploited by PiS to take power. Jarosław Kaczyński’s party used this crisis to mobilise voters during the 2015 and 2018 election campaigns (presenting migrants as a threat to Polish culture and economy, and PiS as the only force able to overcome this threat).

Second, after victory in the elections, PiS used and still uses the instruments of power that they gained in order to introduce restrictions in the flow of migrants, pursuing a strategy that directly or indirectly has a negative effect on migrants’ rights. Thus, these two elements are actually combined. When the migrant crisis of 2015 diminished, the migration problem nearly disappeared from PiS’s agenda and migrants were no longer presented as the main danger. Nevertheless, this style of policymaking remained, but the targets changed. Nowadays other social groups are in the firing line, shown as the main threat: the democratic opposition described as ‘elites’, LGBT and ‘gender ideology’. This has resulted in various restrictions on judges, sexual minorities and women (the problem of reproductive rights). Nevertheless, it is easy to predict that, when the need again arises, migrants will return to the agenda, which will probably be combined with further restriction of their rights.

When it comes to the potential and limits of legal resilience in the migration context, the Polish experience shows that the way the law is used as an instrument of shaping social reality depends on the attitude of those who hold power. The Polish experience after Law and Justice took power over the parliament, the executive and the Constitutional Tribunal, and finally the Supreme Court shows unequivocally that there is no such thing as an inherent resistance of the law to being used improperly. The law cannot defend itself but is a tool of the ruling politicians. This means that a change in the approach to migration law in Poland is inevitably combined with a change in the holders of power. They must be replaced by people with a different vision for policy in this respect. Therefore, what we are dealing with here is not primarily a legal, but rather a political problem, which may be overcome not by legal means (the law itself), but by the will of the people expressed at elections. However, in the current climate, even the opposition parties are not willing to put migrants’ rights onto their agenda. Polish society’s mindset about migrants has been ingrained so deeply that it is difficult to expect particular initiatives on their rights to appear in subsequent election campaigns. It would be too risky for either party.

Seeking support for legal resilience in international forums may also prove unsuccessful. Certainly, the international and European instruments are beyond the direct control of the Polish government, but everyday migration policy remains in the national domain.

The human rights treaty bodies have identified many discrepancies between Poland’s law and practice in the area of human rights protection. The ECtHR has found a breach of the provisions of the ECHR, including the ban on torture in border cases. The CJEU has issued a ruling on the infringement of the solidarity principle due to the rejection of relocation decisions. In light of these findings by international bodies, it might be thought that they can offer a remedy forcing PiS to modify its attitude to migration. However, nothing could be further from the truth, as PiS does not care about external opinions, because the target group it wants to convince is its own voters. Contesting international consensus or the recommendations of human rights bodies is much easier, cheaper and more popular than reviewing the use of detention or raising the awareness of judges and state officials in relation to asylum seekers’ rights.

What might make a difference to the ‘good change’? Probably only the awakening of civil society and a red card shown at the next elections.

10.1 Italian Populism in a Comparative Perspective

Italian populism is interesting to comparative lawyers for many reasons. Not by coincidence, Italy has been defined as a “laboratory”Footnote ¹ for those who are interested in studying populism. First, the country has a long-lasting tradition of anti-parliamentarism over the course of its history as a unitary state. After the end of World War II (WWII), populism has characterised many of the new parties and movements which have come to the forefront in Italian politics. Indeed, members of the Common Man’s Front (Fronte dell’Uomo Qualunque), the first populist movement in Italy, also participated in the works of the national Constituent Assembly. Second, after the 2018 general election, Italy has turned into the first European country in which two self-styled populist forces (MoVimento 5 Stelle and Lega) with very different agendas and voting constituencies have formed a coalition government which then ended in September 2019. That government was the product of a “contract for government” signed between these two political forces. The MoVimento 5 Stelle and the Lega labelled the first Conte government as the “government of change”. Salvini, former Deputy Prime Minister and Interior Minister at that time, referred to Orbán as a role model and there are similarities with Hungary, especially looking at Italy’s migration policy and the way the EU is blamed for migration flows. The migration crisis has been one of the many reasons for tension between Hungary and the EU and similar tension can be found in Italy especially during the first Conte government in which Salvini served as Interior Minister. Indeed, Salvini’s populism has sadly found its main focus in the tragic field of migration policies.Footnote ² This shows that Italian populism is just the latest episode in a longer crisis of constitutional democracies in Europe. In the Italian case, restrictions of migrants’ rights represent a form of democratic decay in populist time, a phenomenon that was pretty evident during the first Conte government but whose roots should be found even earlier. At the same time, this nativist approach to migrants should not be seen as the only manifestation of democratic decay in Italy, which is broader in nature.Footnote ³

By analysing the developments that occurred in the field of migration law during the last two years, in correspondence with the transition between the first and the second “Conte” Governments, this chapter seeks to explore how the recent populist wave has impacted on the management of borders at different levels (legislature, executive and judiciary). To this purpose, we will focus our attention on the maritime border at the South of Italy. Indeed, this is the area in which the conflict between border protection and fundamental rights reaches the highest level of tension: first of all, in popular discourses, especially Italian ones, the maritime border is permanently exposed to a risk of “invasion” by irregular foreigners sailing from North Africa, a risk on which the populist narrative often builds the support to increasingly restrictive immigration policies; secondly, it is precisely along the Central Mediterranean route that fundamental rights are exposed to the most serious threats, represented by both natural factors and the risk of refoulement to Libya (or to other countries that cannot be considered “places of safety” either); thirdly and finally, it is an external border of the European Union, with respect to which the issue of solidarity between Member States is crucial to the definition of long-term migration policies as well as in the management of periodic emergencies. For these reasons, the southern Italian border represents an ideal field of investigation to assess both the impact of populist policies on immigration law and the “resilience” of the legal system with respect to their spreading.

One might think that the new wave of populism in Italy would have ended after the second Conte government, created by the alliance between the MoVimento 5 Stelle and the Partito democratico,Footnote ⁴ but this would probably be a mistake. Not even the advent of the Draghi government has killed the populist momentum, as the numerical strength of the populists in Parliament has not changed. At the same time, it is not possible to reduce Italian populism to the success of the Lega. Indeed, the former Italian President of the Council of Ministers (i.e., the “Prime Minister” in Italy), Giuseppe Conte, has also repeatedly defined himself as a populist,Footnote ⁵ so it seems that nowadays Italian political leaders do not avoid this label; on the contrary, they are happy to display it as a badge of honour. The Italian case is, in that sense, particularly emblematic of the new (global) populist trend. Contemporary populisms do not emerge completely out of the blue. Rather, they are the consequence of long-standing issues that have characterised the political contexts in which they operate, and migration is one of these. As is the case elsewhere, Italian populism has ancient roots.

The Conte governments are also interesting to study in that Conte tried to find a link between populism and the wording of the Italian Constitution. An example of this is his recent speech at the United Nations, where he said:

Here, one can discern an attempt at finding a reading consistent with the text of the Italian Constitution by stretching, at the same time, some of its key concepts and – most importantly – exercising a sort of cherry-picking approach to the Constitution. Indeed, when referring to Article 1 of the Italian Constitution, populists tend to mention just a part of the relevant provision (the part recognising the principle of “popular sovereignty”) in order to find a confirmation of their majoritarian approach to the fundamental charter and to reinforce their false dichotomy between themselves (the real people) and the “others”. In so doing, they tactically omit that the same Article 1 of the Italian Constitution immediately clarifies how popular sovereignty should be understood as limited by the Constitution itself, as the provision reads: “Sovereignty belongs to the people and is exercised by the people in the forms and within the limits of the Constitution”.Footnote ⁷ This is very telling of how populists try to legitimise themselves as political forces consistent with the Constitution. At the same time, when they look for such a literal link with the text of the Constitution, they also advance an alternative reading of two of the constitutional concepts mentioned in that provision, “people” and “popular sovereignty”, by relying on the constitutive ambiguity of these concepts. For populists, democracy can be reduced to the mere majority. Indeed, one could say that the real aim of populist movements is to alter the axiological hierarchies that characterise constitutional democracies, for instance by presenting democracy (understood as the rule of majority) as a kind of “trump card” which should prevail over other constitutional values, including the rule of law and the protection of minorities.Footnote ⁸

If the majority is “the people”,Footnote ⁹ its will must thus prevail at all costs and immediately. Moreover populists tend to construct a false dichotomy between constitutionalism (especially post-WWII constitutionalism) – which aims to limit political power – and populism, which is based on an extra-majoritarian approach to the constitutional system.

Finally, the Italian case is of the greatest interest because the country is a founding member of the European Communities (now European Union). Therefore, the constitutional implications of populist politics have to be considered not only within the national framework but also in the wider context. Indeed, one of the few elements that Lega and MoVimento 5 Stelle share is an evident anti-Europeanism that presents itself in different forms. Sovereignism (“sovranismo”) is one of these forms. The combination between populism and sovereignismFootnote ¹⁰ has been labelled “PopSovism”:

Other scholars have labelled the approach of Lega as a form of nativist nationalism,Footnote ¹² which is based on a constant (but also empty) appeal to national values, needs and interests. Salvini’s motto “Italian first” echoes Trump’s approach and inevitably (at least before his support to the Draghi government) implies, as a consequence, the rejection of the migrant, understood as a potential outlaw. For the purpose of this chapter, however, we will treat Lega as a case of PopSovism.

10.2 The Populist Wave from the Immigration Policies Standpoint: Between Continuity and Discontinuity with the Past

Since the last decade of the last century, that is when Italy permanently became a country of immigration (as final destination or just as country of transit), the Italian legal system has been endowed with increasingly more restrictive legislation on the conditions of access and stay of third-country nationals, backed up with increasingly severe sanctions, including criminal ones.Footnote ¹³ This approach has been constantly pursued, despite the alternation between centre-left and centre-right wing governments. From this perspective, restrictive measures introduced from 2018 onwards, when populist parties came to Government, have done nothing but continue an existing migration control strategy, by further curtailing the grounds allowing entry and stay on the territory, as well as by tightening the sanction apparatus.

From another point of view, however, the political season launched by the populist majority of Lega and MoVimento 5 Stelle has been marked by at least two distinctive features: on the one hand, new types of narrative and arguments have supported anti-immigration policies; on the other hand, for the first time the firm political choice of closing borders, namely maritime ones, was announced and implemented. These two aspects are strictly connected.

As to the narrative, populist parties were able to intercept a sentiment of deep discontent among the middle and lower-middle layers of society, rooted in the economic recession followed by the economic crisis of 2007–2008,Footnote ¹⁴ and to turn it into adherence to political programmes permeated with nationalist and anti-immigration rhetoric. In this context, the former dichotomy between regular and irregular migrants (according to which only the latter could be considered as potential threats to public order), was replaced by a much more aggressive narrative targeting economic migrants as such, described as potential invaders, job thieves, false refugees or even criminals.Footnote ¹⁵

These are the ideological and discursive premises upon which the “closed ports” policy has been based. A fear of invasion was constructed by populists on the massive increase in arrivals from the sea which followed the Arab SpringsFootnote ¹⁶ and even more so with the latest “refugee crisis”.Footnote ¹⁷ In this context, the promise to “stop landings” was one of the key points of the election campaign that brought to power the “Government of change” in 2018. In practice, however, the number of arrivals had already decreased as a result of the Memorandum of Understanding signed by Italy and Libya in 2017, at the price of complicity with the unspeakable violence suffered by migrants in the Libyan detention centres.Footnote ¹⁸ Nevertheless, the populist majority attempted to offer the public opinion the image of robust interventions aimed at strengthening the protection of the maritime borders.

10.3 Above International Law: The “Closed Ports” Policy

The expression “closed ports” policy includes two different sets of initiatives, which will be examined separately below. The common feature of these measures, which makes them resemble the Australian “no way” approach,Footnote ¹⁹ is that they are aimed at closing maritime borders, at least during the time for the negotiation of migrants’ resettlement to other countries, either by keeping migrants within some sort of legal limbo, as long as they are placed outside of the mainland (usually on boats); or without taking into account migrants’ personal situation at all, denying them access to national waters.

Indeed, that is the strategy adopted by Australia in the infamous Tampa case of 2001, where for eight days national authorities refused to disembark a Norwegian container ship that had rescued hundreds of asylum seekers, mainly Afghan Hazaras fleeing the Taliban, who were subsequently diverted to New Zealand and Nauru.Footnote ²⁰ In the aftermath of Tampa, precisely in order to avoid new deadlocks involving irregular aliens, it was agreed to amend the International Convention on Maritime Search and Rescue (SAR, 1979) and the International Convention for the Safety of Life at Sea (SOLAS, 1974) by specifying that the obligation to assist castaways applies “irrespective of the nationality or status of the person and the circumstances in which he or she is found”.Footnote ²¹ The amendments did not remove any doubt as to the specific responsibilities of coastal and flag States, but made it clear that there is an obligation to cooperate on the part of all neighbouring States that have had knowledge of the accident, and that none of them are released from this obligation until castaways are disembarked.Footnote ²²

Notwithstanding these rules of international law, to which Italy is certainly bound having ratified the amended conventions, Italy’s “closed ports” policy is based precisely on the aim of reaffirming the sovereignty of the State and its unconditional power, in implementing the “will of the people”, to defend its borders from any unwanted intrusion.

The first relevant episode concerns the military ship Diciotti, which in August 2018 had loaded on board almost two hundred people rescued by the Italian Coast Guard in international waters. The ship remained in the port of Lampedusa for three days and then another five in that of Catania, before the Minister of the Interior authorised the disembarkation of the migrants held on board. The goal was to negotiate with other states of the EU on the redistribution of the foreigners before allowing them to leave the rescue ship. A similar episode occurred a year later, when more than one hundred shipwrecked migrants were detained on board the military ship Gregoretti from 26 to 31 July, pending relocation agreements.

An even more radical approach is that of bans on NGO vessels that, since the interruption of the Mare Nostrum operation in 2014,Footnote ²³ have been carrying out search and rescue activities along the central Mediterranean route, often requesting permission to land in Italy as a safe port closer to the place of recovery of migrants. On the assumption that such operations not only entailed the landing of irregular foreigners on Italian territory, but also constituted a pull-factor for further departures, the Minister of the Interior instructed the maritime border authorities to deny entry to anyone who allegedly carried out a rescue activity in order to bypass immigration laws. According to these directives, NGOs were responsible for conducts such as “possible manipulation of international obligations in the field of search and rescue”; or “mediated cooperation [implied: with smugglers] which, in fact, encourages the crossing by sea of foreign citizens without residence permit and objectively facilitate their irregular entry into the national territory”.Footnote ²⁴

These directives have been severely criticised by the United Nations High Commissioner for Human Rights. In particular, a letter of 15 May 2019 signed by five Special RapporteursFootnote ²⁵ highlighted its radical incompatibility with the obligations arising from the UNCLOS, SOLAS and SAR Conventions on the International Law of the Sea, as well as with the principle of non-refoulement. The inhibition of rescue activities carried out by NGOs and other private vessels in the central Mediterranean, in fact, entails very serious risks for the fundamental rights of migrants, who are increasingly destined to lose their lives in a shipwreck or to be recovered by the Libyan Coast Guard and taken back to a country where arbitrary detention, torture and sexual violence represent a tragic daily routine.Footnote ²⁶

10.4 A Legal Basis for the “Closed Ports” Policy: The Security Decree 2019

Not only were the above-mentioned recommendations of the UN Special Rapporteurs not heeded, but shortly afterwards the Government approved, under an accelerated procedure which reduces the role of Parliament to the mere approval of the executive’s discipline, the Decree Law Footnote n. 53/2019 (hereinafter “Security Decree 2019”),Footnote ²⁷ aimed both at providing an express legal basis for the entry-ban directives, and at introducing severe administrative sanctions against offenders. This reform thus represents a further step of the “closed port” policy, obtained by granting a legal basis to the Minister of the Interior’s initiatives.

The decree, in fact, conferred to the Minister the power to issue orders aimed at prohibiting or limiting the entry, the transit or the stay in territorial waters of ships (excluding military or state-owned vessels), where reasons of public order and safety occur, or where a foreign ship passage qualifies as “prejudicial” under the UNCLOS Convention, namely because the ship “engages in the unloading of any person contrary to the immigration laws and regulations of the coastal State” – Article 19, para. 2 (g).Footnote ²⁸ In case of violation, the shipmaster and the ship owner could be served with an administrative sanction of up to 1 million euros, together with the confiscation of the boat.Footnote ²⁹ Against this background, especially during the first Conte government, law can be seen as a contributing factor to the incremental undermining of migrants’ rights, instead of a source of resilience. However, as we will see below, judges have counteracted as a shield to impede constitutional backsliding.

It is pretty obvious that the discipline introduced by Security Decree 2019 was affected by the very illegitimacy which the Special Rapporteurs had pointed out right before it was approved. Indeed, as a matter of hierarchy of legal sources, national rules cannot affect the system of obligations set by supranational instruments that Italy has ratified and been bound by. In addition to those criticisms, the Italian President of the Republic, at the moment of the enactment of the reform, pointed out in an official communication to the Parliament that the severity of the administrative sanctions raised serious doubt about their compatibility with the principle of proportionality, which can be drawn from the Italian Constitution and which is codified in Article 49 of the Charter of Fundamental Rights. Although the latter literally refers to criminal punishment and does not mention administrative penalties, the “administrative” sanctions for shipmasters could fall within the classification of “criminal penalties” under the Engel criteria,Footnote ³⁰ due to their seriousness and deterrent purpose. Despite these critical aspects, neither the Special Rapporteurs’ recommendations nor the President’s concerns were taken into account by the populist majority: any criticism against the policies enacted was rejected as anti-democratic; and any attempt to restore the rule of law was considered an instrument of conservatives to counter the “will of the people”.

10.5 Litigating the “Closed Ports” Policy: The Sea Watch and Open Arms Cases

The first Ministerial entry ban based on the Security Decree 2019 was issued against the vessel Sea Watch 3, led by Captain Carola Rackete, after it had rescued several dozen irregular migrants in international waters in June 2019. Sea Watch’s lawyers first applied to an Administrative Court, arguing that the ban was illegitimate under international law and its effects should be immediately suspended. The Court dismissed the suspension demand on the grounds that children, pregnant women and other vulnerable persons had already been brought to the mainland. Subsequently, an application for interim measures under Rule 39 was made to the European Court of Human Rights (ECtHR), relying on Articles 2 and 3 of the Convention. After having questioned the Italian Government about the situation on board, the ECtHR decided not to grant interim measures, which implied that disembarkation in Italy was not ordered. The ECtHR only recommended that Italy continued to provide all necessary assistance.Footnote ³¹ This outcome could at first sight be considered as an expression of judicial self-restraint with respect to reviewing the legitimate migration policies; more likely, however, it is in line with the well-established Strasbourg jurisprudence that grants interim measures in a limited number of cases, most of which related to pending expulsions and extraditions. It was after this failed attempt to obtain a favourable decision regarding the request for interim measures, that Commander Rackete decided to break the blockade imposed by the patrol boats of the Italian border authorities. The Commander directed the ship carrying the shipwrecked people, who were at the limit of their physical and psychological strength, to the port of Lampedusa. Here, she was immediately arrested for the criminal offences of resisting a public official and resisting a warship. A few months later, as it will be shown in more detail below, the arrest of Carola Rackete was found to be illegitimate by the Court of Cassation (i.e., the Italian court of last instance on issues of law), which recognised the legitimacy of the operation as it was carried out in fulfilment of the duty to rescue at sea. In the light of this outcome, we can conclude that, on the one hand, the judiciary (namely the ECtHR) was initially not able to promptly react to (what later turned out to be) an unlawful interference with the fundamental rights to personal liberty and physical integrity of both the ship’s Commander and the castaways; on the other hand, the prevalence of those fundamental rights over border protection emerged at a later stage before a national high court, thus representing from that moment on a crucial reference at least for the national case-law.

A few weeks after the Sea Watch accident, a similar stalemate arose for the NGO Open Arms’ ship. Although in this case an Administrative Court ordered the suspension of the entry ban, the Minister of the Interior continued to deny permission to disembark. After nineteen days, the situation was “resolved” thanks to the intervention of the Prosecutor’s Office of Agrigento: noting that the authorities failed to reply to the shipmaster’s requests for a place of safety to be assigned, the Prosecutor started an investigation against unknown persons for the offence under Article 328 of the Penal code (unjustified refusal to act) and ordered the seizure of the ship, thus obtaining (as indirect effect of the seizure order) the disembarkation of the people on board.

The epilogues of the Rackete and Open Arms cases are relevant to investigate the responses of the legal system to attempts to unduly interfere with the fundamental rights of foreigners: that is, the importance of the independence of the Italian judiciary, including prosecutors, with respect to the executive power, and the related possibility of re-establishing guarantees by means of prosecution and within the criminal process. Even when the legal system did not seem to have effective tools at its disposal, the judiciary has shown to be able to find creative, unconventional solutions to address violations, as in the mentioned case of the seizure of the Open Arms in order to obtain the disembarkation of migrants. The importance of the national criminal law in safeguarding the interests of migrants has been confirmed in another even more remarkable set of situations: criminal proceedings initiated against the Minister of the Interior for unlawfully depriving migrants of their liberty on board of ships. We shall now turn our attention to these issues.

10.6 The Criminal Charges for Illegitimate Deprivation of Personal Liberty Aboard Ships

With regard to the conditions of migrants held on board pending the disembarkation bans and the entry bans, the Italian Ombudsman on the Rights of Persons Deprived of Personal Liberty had expressed concerns since, in its opinion, the circumstances qualified as de facto detention without proper legal basis and without judicial control.Footnote ³² In that regard, the Ombudsman pointed out that these cases raise the same issues that led the European Court of Human Rights to find a violation of Article 5 in the case Khlaifia and others v. Italy, in which Italy was condemned by the Grand Chamber for the violation of Article 5 of the Convention,Footnote ³³ for having kept three Tunisian nationals for about ten days within the reception centre of Lampedusa and later on board private ships docked in the port of Palermo (used as a temporary detention centre) pending the expulsion procedure.

Personal freedom as a fundamental right threatened by the policy of “closed ports” has come to the attention of the Italian judiciary too. With regard to the Diciotti, Gregoretti and Open Arms cases, the Minister of the Interior at that time, Mr. Salvini, was charged with the crime of kidnapping (Article 605 of the Italian Criminal Code). Since the alleged offence was arguably committed by a Minister in the exercise of his duties, the accused was covered by immunity unless the Senate granted authorisation to proceed against him. While in the Diciotti case the Senate refused authorisation on the grounds that the Minister had pursued the public interest without irreversibly infringing a fundamental right,Footnote ³⁴ in the Gregoretti and Open Arms cases, the same Assembly granted the authorisation and the criminal trials are currently pending.Footnote ³⁵

Technically, the different outcomes regarding the authorisations to proceed with the criminal trials against Salvini derive from the fact that, according to the testimonies collected, the decision not to allow disembarkation in the Diciotti case was taken collegially by the Government, while in the subsequent Gregoretti and Open Arms cases it was a decision taken by the Minister of the Interior alone. Beyond these formal reasons, however, one fact certainly had a decisive bearing on the outcome of the two procedures: while the request for authorisation to disembark in the Diciotti case came under the first Conte Government, supported by a majority which included the Lega, that is the party of the accused; vice versa, the request for authorisation in the other cases came under the “Conte 2” Government, after the Lega had left the Government and had been replaced by the Democratic Party.

10.7 The Criminalisation of Search and Rescue Activities

Since 2017 several criminal investigations for the offence of facilitating irregular immigration (Article 12 Italian Immigration Law) have been initiated against crew members of NGO ships who, after carrying out search and rescue activities along the Central Mediterranean route, brought shipwrecked people to Italy.Footnote ³⁶ So far, there have been no convictions, and criminal proceedings against NGOs are either in the phase of investigation, or have been dismissed. However, this phenomenon is of paramount importance in order to investigate the wider issue of “criminalisation of solidarity”, which is a source of concern throughout Europe, both at sea and land borders.Footnote ³⁷

These initiatives are difficult to classify. On the one hand, they seem to pursue, through prosecution, the same aims as those of the “closed ports” policy, namely cracking down on illegal immigration and its (alleged) facilitators. On the other hand, as the Italian judiciary (including prosecutor offices) is completely independent from the executive power, criminal proceedings against individuals who participate in search and rescue cannot be traced back to migration policies as set by the Government. From a strictly legal point of view, these proceedings fall within the scope of the principle of mandatory prosecution embedded in the Italian Constitution: given that bringing foreigners without documents to Italy potentially falls within the offence of facilitating illegal immigration, the public prosecutor is formally obliged to assess criminal responsibility. The general principle of mandatory prosecution shall be read in conjunction with the code of criminal procedure, which provides that the prosecution shall be dropped where the accused has acted under some exemption, such as necessity or in the fulfilment of the duty to rescue.Footnote ³⁸ However, the misleading narrative spread by populists (“NGOs create extra ordinem humanitarian corridors”, “NGOs are a pull-factor for further departures”, etc.) can somehow influence the prosecutors’ assessments that the conduct of the crew members could be blameworthy enough to justify the opening of investigations.

Such an attitude becomes clear when examining the judicial orders for the seizure of ships. These orders are the main documents that can give us indications as to the reasons underpinning prosecutors’ assessments since so far there has not been any judgments on the merits. For instance, in the Iuventa ship case, the judge for the preliminary investigations of Trapani held that “the praiseworthy and continuous presence of rescue ships in the Libyan territorial waters has made it even easier to send more and more dinghies unsuitable for navigation and significantly reduced the risks for smugglers to be intercepted in international waters allowing them to abandon the boats in Libyan territorial waters in the awareness of the immediate rescue activities carried out by the NGO boats”.Footnote ³⁹ Subsequently, in the Open Arms case, the judge for the preliminary investigation of Catania pointed out that the crew members violated the “Code of conduct for NGOs”Footnote ⁴⁰ when they did not wait for the Libyan Coast Guard to intervene, thus engaging in illegal conduct “because the NGO cannot be allowed to create autonomous humanitarian corridors outside of state and international control”.Footnote ⁴¹

Even in this field, however, the Italian judiciary has so far proved to be more of a guarantor of fundamental rights than a further oppressor of them. This has become clear in the already mentioned case of the arrest of the Sea Watch commander Carola Rackete, which was declared illegal by the judge for preliminary investigations, with a ruling confirmed by the Court of Cassation.Footnote ⁴² The judges on both instances have in fact clarified that: i) the duty to rescue enshrined in the conventions of international law (UNCLOS, SAR) ends with the transport of shipwrecked persons to a safe port; ii) the choice of the latter is not only up to States but also to the ship’s Commander on the basis of his assessment of each single case (weather conditions, distances, safety of coastal countries, etc.); iii) this legal framework is well known to the border authorities, so that they are in a position to distinguish the situations where a Commander is committing an offence (such as failing to comply with the authority’s order not to cross maritime borders), from those where she or he is acting in the performance of the duty to rescue; iv) in the latter cases, border authorities are not entitled, under the Italian code of criminal procedure, to place the Commander under arrest. Although Carola Rackete was arrested not for facilitating irregular immigration, but for resisting a public official and resisting a warship (see above), these principles seem to have a much broader scope, capable of justifying the commission of a wide array of offences (including the one of facilitating illegal immigration), when necessary to fulfil the duty of assistance. Indeed, in cases which have followed the Rackete’s one, prosecutions have been dropped on account that the accused Commanders acted under necessity and/or had fulfilled the duty of rescue as provided by international conventions on the law of the sea.Footnote ⁴³

What is even more interesting to observe is that, by voiding the arrest of Rackete for resisting a public official and a warship, the Court of Cassation has implicitly recognised, upon a civil society actor, a sort of “right of resistance” to those police activities that, contrary to the hierarchy of interests at stake (life and physical integrity versus border control), attempted to hinder the success of the rescue operation.

Still, the criminalisation of humanitarian assistance is a source of concern, even where proceedings are dismissed, due to the risk of deterrent effects towards the whole of civil society. As long as providing help to irregular migrants (or to those whose status is not known) can lead to criminal prosecution, a “chilling effect” may spread among potential rescuers, resulting in further deterioration of social and human ties between citizens and foreigners.

The origins of this situation, however, lie long before both the “Government of change” and the previous governments. The obligation to impose sanctions of a criminal nature for any conduct facilitating irregular entry of third-country nationals, including conduct which is not carried out for financial gain or as part of organised smuggling activities, stems from the combination of provisions in Directive 2002/90/ECFootnote ⁴⁴ and Framework decision 2002/946/GAIFootnote ⁴⁵ (the so-called EU Facilitators’ Package). Through these provisions, the European legislator intended to target the widest possible range of conduct aimed at facilitating irregular entry. In order to reduce the risk of criminalising conduct motivated by purely humanitarian aims, Article 1(2) was included in Directive 2002/90/EC, allowing the (mere) possibility for the Member States to exclude liability in cases where the facilitation of irregular entry or transit is motivated by the purpose of providing humanitarian assistance. However, Italy (as well as most Member States) has not introduced such a “humanitarian clause” allowing the exclusion of liability: this is one of the reasons why the current proceedings against individuals who have assisted migrants are so complex.

In conclusion, the origins of the problem of criminalisation of solidarity can only partially be found in the most recent populist policies. From a strictly normative point of view, in fact, this problem has much more distant roots. It is clear, however, that the present social context, conditioned also by the narratives of a populist mould, has contributed to “activate” criminal legislation that had remained dormant until now. In other words, if the origins of the phenomenon are quite ancient insofar as primary criminalisation is concerned, its practical and undesirable consequences are experimented with today because the social conditions for applying the criminalisation have changed.Footnote ⁴⁶

10.8 A Wind of Change? Only in Part

The “Government of change” fell in August 2019 and was replaced (without new elections) by a new majority formed by the centre-left wing Partito Democratico and (again) the Movimento 5 Stelle. The new coalition did not include the party that had been the main promoter of anti-immigration policies in 2018–2019 (the Lega). This resulted in a number of initiatives which showed a certain discontinuity with the previous season. The first one has been the Malta agreement for the relocation of rescued asylum seekers,Footnote ⁴⁷ after which no more entry-bans towards NGOs have been issued and their vessels are normally allowed to disembark, although only after a certain amount of waiting,Footnote ⁴⁸ during which authorities carry out the negotiations for the relocation of castaways in other Member States. Moreover, Law Decree n. 130/2020 has introduced a new form of special protection permit, has enhanced reception services and – more importantly to the purpose of this chapter – has repealed the administrative sanctions for boat masters who violate entry bans.

However, besides those overall encouraging signs, there is clear and worrisome evidence of continuity with the past. First, the strategy of externalisation of borders is still ongoing, given that the 2017 Memorandum of Understanding between Italy and Libya has been renewed in February 2020 and that Italy is still channelling funds to Libya to manage migration and to train its coastguard.Footnote ⁴⁹ Second, NGOs’ rescue vessels are often blocked by Italian authorities after their missions, with bogus arguments of “administrative irregularities”, resulting in the depletion of the civil society’s rescue capacities along the central Mediterranean.Footnote ⁵⁰ The outbreak of COVID-19 in Italy has further exacerbated the situation, as migrants upon arrival serve a period of quarantine aboard ships.Footnote ⁵¹ This “floating quarantine” measure raises a number of issues from the standpoint of balancing the need to protect public health with the fundamental rights of migrants and asylum seekers, as detention on ships entails deprivation of personal liberty, which is in turn a risk for the psycho-physical health of migrants on board, and could lead to inhuman and degrading treatment.

Third, and most importantly, the Minister of the Interior’s power to issue entry bans has been maintained and the administrative sanctions have been replaced by criminal sanctions (Decree Law n. 130/2020, art. 1, para 2). This latest development, although it may at first sight seem like a new crackdown, may in fact represent at least some progress compared to the previous legislation. From now on, in fact, the offence of violating the entry bans will have to be assessed by a criminal judge, who will necessarily have to follow the principles indicated by the Court of Cassation in the case of Sea Watch-Carola Rackete.Footnote ⁵² On the basis of these principles, the criminal courts will have to recognise that the rescue operation only ends when castaways are transferred to the mainland. As a consequence, the new offence of violating entry bans is very likely to be excluded, just as already happens with the other mentioned offences (facilitating illegal immigration; resisting a public official and a warship), on the basis of the duty to rescue.

10.9 Conclusion

In this chapter we tried to respond to the research questions of the volume in order to see to what extent restrictions of the rights of migrants represent a form of democratic decay in populist times. In so doing, we also explored the possibilities and limitations of legal resilience to safeguard migrants’ rights against further regression in times of populism. Although the recent experience of a populist Government resulted in more restrictive and repressive immigration laws, we have shown that the immigration policies of closing borders, segregating migrants and approaching foreigners’ mobility only as a public order issue, even at the cost of violating fundamental rights such as life and personal liberty, both preceded and continued after the populist wave; and has contributed to the construction of some sort of wall separating the lives of citizens from those of third-country nationals. Useless and criminogenic measures have sprung up across more than two decades, aimed at, on the one hand, satisfying an induced demand for greater security and, on the other hand, worsening those same conditions of marginalisation of “the foreigners” that fuel the fears of the citizens, thus building their support for those measures that look more like the cause (rather than the solution) of the problem.

Looking at the future, given that anti-immigration positions are still majoritarian among voters, the challenge against unjust legislation and practices seems to have more chance of success if pursued through judicial remedies rather than by legislative reforms. After all, this is precisely what happened during the last decade, where the most important achievement in terms of restoring the rule of law and stopping systemic violations of fundamental rights in the field of immigration have been obtained through litigation before the EU Court of Justice (El Dridi), the European Court of Human Rights (Hirsi, Khlaifia) and also national jurisdictions. It was precisely the latter that laid the legal groundwork for overcoming the two main constituent elements of the Italian “wall” erected against boat migrants: the practice of unlawful deprivation of personal liberty on board ships, which was tackled through the seizure functional to disembarkation and the start of investigations for kidnapping against the Ministry of the Interior; the criminalisation of search and rescue activities, which was overcome through the recognition of the justification of the duty to rescue, on the basis of the relevant Conventions on the International law of the sea.

Populists also tend to perceive limits and procedures as obstacles in the path of establishing the democratic principle. Moreover, populists depict courts and independent agencies as biased and non-neutral since “independent judges and courts are understood as an illegitimate constraint on majority rule, and hence legal means are to be employed to counter this situation”.Footnote ⁵³ These considerations clarify why populists seem to be on a permanent political campaign. The Italian case is particularly emblematic of this trend, as the (former) Italian Deputy Prime Minister and Interior Minister, Matteo Salvini, has recently been responding to critics with the same mantra – “you should first resign and run for elections instead of doing politics from the judicial bench”Footnote ⁵⁴ – but this was a rhetorical element already present in the approach endorsed by the Berlusconi government.Footnote ⁵⁵

Against this background, contemporary populisms do not emerge completely out of the blue, since they are a consequence of long-standing issues that have characterised the political contexts in which they operate. In parallel, it is paramount to challenge the current immigration policies on the grounds of language and narratives. As the rhetoric of the “invasion of economic migrants” and “false refugees” fuels a vicious circle leading to increased securitisation and criminalisation, some sort of cultural revolution is required to reverse this course of action. This means reintroducing the (lost) human element within the discourses on immigration and replacing the concept of “mass immigration”, evocative of a one-way phenomenon bearing public order problems, by the more nuanced one of “mobility of people”, that is a global phenomenon coessential to human nature.

11.1 Introduction

This chapter analyses the lasting impact of the 2017/2019 government coalition on the state of refugee rights in Austria. We investigate to what extent the policies and legal initiatives of this government restricting refugee rights feature democratic decay, in particular elements of populism. The legacy of this coalition is of interest also for constitutional scholars as the Austrian Government was represented (again) by the Austrian People’s Party (Österreichische Volkspartei, ÖVP) and the Freedom Party of Austria (Freiheitliche Partei Österreichs, FPÖ), a so-called radical right populist party.Footnote ¹

First, we provide an account of refugee rights restrictions during the ÖVP-FPÖ coalition 2017/2019 (Section 11.2). Afterwards follows a diagnosis of whether the quality of democracy and the rule of law is in decay, stagnates or rises in Austria in connection to these restrictions. We argue that these restrictions show elements of populism and are thus interlinked with the phenomenon of democratic decay. This decreases the functionality of Austrian democracy and the rule of law (Section 11.3). In light of this finding, we show what constitutional law has done, can and could do to keep in check, prevent but also remedy such restrictions. We will particularly look at how human rights (including fundamental rights) as guaranteed by the Austrian Constitution and applied and interpreted by the Austrian Constitutional Court can or could provide relief (Section 11.4).

11.2 An Account of (Further) Restrictions of Refugee Rights by the 2017/2019 ÖVP-FPÖ Coalition

The FPÖ is one of the most successful ‘populist radical right parties’Footnote ² in Western Europe.Footnote ³ While in the early 1990s still on the fringes of the political spectrum, it has gradually become an ‘agenda setter’ or ‘opinion leader’ in the Austrian political system, at least when it comes to migration issues. After a string of electoral victories, it has arrived in the Austrian political mainstream. It has already formed part of the Austrian Government three times since 2000, always in cooperation with the ÖVP. Lately, the FPÖ rose to new heights under its former leader Heinz-Christian Strache when scoring election results, at a size which was previously only achievable for the two traditionally leading Austrian parties, the ÖVP and the Social Democratic Party of Austria (Sozialdemokratische Partei Österreichs, SPÖ). The almost twenty-six per cent of all votes at the 2017 Parliamentary Elections leading to the fourth government participation of the FPÖ in Austrian history, lasted until the so-called ‘Ibiza affair’. This chapter focuses on the ‘lasting output’ in the area of asylum of the third ÖVP-FPÖ Government coalition which endured not even one and a half years.

Restrictive trends have been prevailing in the Austrian immigration and asylum policies for the last decades.Footnote ⁴ As also suggested in the literature, asylum policy has become – influenced by the FPÖ – increasingly deterring since the 1990s also under ‘Grand Coalitions’ between the ÖVP and the SPÖ; this was justified with the prevention of ‘asylum abuse’.Footnote ⁵ This accelerated with the sudden rise in the number of asylum seekers in 2015 and 2016 (some of them only transiting) leading to several amendments in the Asylum Act under the ÖVP-SPÖ Government.Footnote ⁶

The FPÖ has a long history of engaging in anti-migrant rhetoric. Immigration has been the central topic of the FPÖ since Jörg Haider took over the lead of the party in 1986, and even more since Heinz-Christian Strache became head of the party in 2005. This focus was spurred by the high numbers of asylum seekers in 2015 leading to very successful results in the 2016 Presidential Elections and the 2017 Parliamentary Elections.Footnote ⁷ The topics of immigration and integration are for the FPÖ so dominant that they also feature in other policy fields, e.g., social policy or education policy. In this vein, the 2017 FPÖ election programme contained nativist scatters in almost all topics.Footnote ⁸

The FPÖ has been influencing the positioning of other political parties including the two big parties of the centre, the ÖVP and the SPÖ, even without participating in governments. ÖVP and SPÖ have gradually taken over the rhetoric and politics of the FPÖ with its anti-immigration slogans since the early 1990s within the framework of the grand coalition.Footnote ⁹ In recent years, in particular the ‘new’ ÖVP under Sebastian Kurz has increasingly sought to assume the role occupied by the FPÖ. During the 2017 election campaign for the Parliamentary Elections, Kurz stressed several times that he ‘closed the Balkan Route’, criticised the migration policy of Angela Merkel and supported the positions of the Visegrád group in the EU. At one point, the FPÖ even accused Sebastian Kurz of ‘stealing’ their policies and portrayed their leader H C Strache as ‘thought leader’ (Vordenker) to which other parties would finally follow suit.Footnote ¹⁰ With this convergence of their agendas, Kurz’ ÖVP and Strache’s FPÖ formed a government coalition (2017–2019). In the Parliamentary Elections of October 2017, the ÖVP (Liste Kurz) succeeded with a very restrictive stance against refugees and asylum seekers outpacing the FPÖ.Footnote ¹¹ By entering into a coalition with the FPÖ, issues of radical right parties (e.g., national identity, abuse of the welfare state, immigration and security) were legitimised.Footnote ¹²

In contrast to previous ÖVP-FPÖ coalitions, the content and wording of the 2017–2022 Government Programme showed a considerable incorporation of FPÖ positions,Footnote ¹³ and a new focus was placed on the ‘extremely restrictive exclusionary treatment’ of asylum seekers, beneficiaries of international protection and foreign nationals in general.Footnote ¹⁴ Moreover, for the very first time the FPÖ was responsible for its central topics including asylum by receiving departments such as the Ministry of the Interior.Footnote ¹⁵ Very importantly, there was a ‘better ideological compatibility’ with the coalition partnerFootnote ¹⁶ since the ÖVP under Kurz embarked on a course overlapping strongly with the priorities of the FPÖ.Footnote ¹⁷

Reactions to the FPÖ participation were in 2017 much ‘softer’ than in 2000, since in 2017 it seemed to be ‘normal’ that a populist radical right party participated in a European government. In the public opinion the ÖVP-FPÖ coalition did well. A Eurobarometer survey revealed that the confidence in the government after one year since its formation, was at the highest level since mid-2011.Footnote ¹⁸

In the following, an overview of the main restrictions in the area of asylum introduced during the 2017/19 government is given.

11.3 The Confluence and Interrelation of Populism and the Restriction of Refugee Rights in Austria: Is Democracy in Decay in Austria?

11.4 Legal Resilience: The Possibilities and Limits of Constitutional Law to Keep in Check, Prevent But Also Remedy the Restriction of Refugee Rights, Populists and Democratic Decay

Finally, this contribution asks what Austrian (constitutional) law can do to prevent democratic decay and populism in general, as well as the restriction of refugee rights more specifically.Footnote ⁸⁷ At first sight, Austrian (constitutional) law deeply influenced by Kelsenian positivism, seems to be rather toothless due to its strong neutrality regarding politics. Whatever content a specific law has, if the two-thirds-majority in parliament is ensured, even constitutional law can be amended or created.Footnote ⁸⁸ This is potentially problematic as exemplified by the former Minister of the Interior, Mr. Kickl, who argued that it is the law which must bow to politics, and not the other way round.Footnote ⁸⁹ However, at a second glance there are some tools provided by constitutional law which might offer some relief, and thereby strengthen the democratic compass.Footnote ⁹⁰ An effective tool of the Austrian Constitution is that even constitutional law must be in line with the most important constitutional principles that are of the highest rank in the Austrian Constitution. The Austrian Constitutional Court guards these principles which include – among other principles – also a democratic principle, human rights and the rule of law and can declare constitutional laws unconstitutional if they violate these principles.Footnote ⁹¹

Human rights are themselves another important element of legal resilience, which are also anchored in the Austrian Constitution. Apart from the State Basic Law on the protection of the rights of citizens that contains traditional civil liberties,Footnote ⁹² it is in particular the European Convention on Human Rights (ECHR) that constitutes ‘the main, constitutionalised source of fundamental rights protection’.Footnote ⁹³ Other rights in the Austrian Constitution are, for example, the right to equality in Article 7 Federal Constitutional Law (B-VG);Footnote ⁹⁴ the rights in other international treaties adopted by Austria on a constitutional level (e.g., the International Convention on the Elimination of All Forms of Racial Discrimination)Footnote ⁹⁵ or implemented through special constitutional acts (e.g., the Convention on the Rights of the Child),Footnote ⁹⁶ and the constitutional rights in peace treaties.Footnote ⁹⁷ During the past decade, the EU Charter of Fundamental Rights (CFR) has increasingly become important in the Austrian human rights system. In 2012, the Constitutional Court ruled that the rights in the CFR can be asserted before the Court as constitutionally guaranteed rights.Footnote ⁹⁸ In particular, in the area of asylum the Charter plays an important role.Footnote ⁹⁹ Given that asylum procedures do not fall within the scope of application of the Article 6 ECHR, provisions of the CFR such as Article 47, have been increasingly invoked and applied in the asylum procedure.

The Constitutional Court ‘reads the relevant provisions from the different instruments together, to provide a comprehensive protection’.Footnote ¹⁰⁰ In addition, human rights and the rule of law also pertain to the above-mentioned core principles of the Austrian Constitution. The Constitutional Court might, thus, declare even a constitutional act that aims at diminishing or even abolishing specific human rights, unconstitutional. Only by a popular referendum and a so-called total revision of the Austrian Constitution, could human rights be abolished.Footnote ¹⁰¹ This protection against considerably amending or abolishing human rights also by potential acts of parliament is an important instrument of legal resilience against further, admittedly large-scale, restrictions of refugee rights.

Arguably, also an Austrian withdrawal from the ECHR would only be possible after such a popular referendum (in addition to a two-thirds majority in parliament) due to the constitutional rank and the high importance of the ECHR in Austria. This is an important contributing factor of legal resilience of the Austrian Constitution. It protects against attacks by members of the former ÖVP-FPÖ Government like the former Minister of the Interior (FPÖ) who questioned the ECHR indirectly in line with the FPÖ election programme 2017 that contained possible withdrawal from the ECHR and its replacement by an Austrian Human Rights Convention (which should protect also the ‘home land rights of Austrians’).Footnote ¹⁰² The same minister devalued human rights guarantees at national, EU and international level as ‘strange legal constructs’ which would be obstacles to do ‘what is necessary’.Footnote ¹⁰³

The Constitutional Court exercises important functions that may serve to keep populist behaviour and democratic decay in check. Such functions include judicial review of laws and regulations, review of rulings by administrative tribunals and the verification of elections.Footnote ¹⁰⁴ With regard to the cutting of social assistance for recognised refugees, for instance, the Constitutional Court declared these norms initiated by the ÖVP-FPÖ Government as unconstitutional.Footnote ¹⁰⁵ Still, it seems to be only the tip of an iceberg which the Court can address according to its mandate.

In line with the above-mentioned importance of informal democratic legal culture and human rights support, civil society also plays an important role to keep elements of populism in check. This is visible in petitions such as the petition relating to access to the labour market of asylum seekers or in relation to the Global Compact on Migration. The role of the civil society is also visible in the statements submitted in the context of the parliamentary procedure or in protests against the renaming of first reception centres into return centres.Footnote ¹⁰⁶ Still, there is no legal obligation to take civil society’s petitions, protests, etc. into account. The ÖVP-FPÖ Government also tried to reduce the influence of civil society in the asylum procedure by introducing the BBU-G. Hence, there is not one single strategy or tool of resilience. Rather, the network of formal and informal rules of the democratic legal culture and safeguards of human rights are needed in order to prevent democratic decay and populist propaganda.

11.5 Conclusion

The open attacks against human rights, the rule of law and also attacks on parts of civil society by members of the government, were the innovations brought with the 2017/2019 ÖVP-FPÖ Government.Footnote ¹⁰⁷ The legacy of the ÖVP-FPÖ Government has a dark and long shadow eclipsing also the coalition government by the ÖVP and the Green Party which has been in office since January 2020.Footnote ¹⁰⁸ During the first year of the ÖVP Green Party Government, in particular the refusal of the ÖVP to accept even a single child from the refugee camps on the Greek islands, not even after the catastrophe in Moria, underlines this legacy. ‘Security detention’ now features in the Government Programme, albeit the programme stresses that it must be in conformity with the Constitution, the ECHR and EU law.Footnote ¹⁰⁹ The decision not to join the Global Compact on Migration and the abolition of the independent legal assistance of asylum seekers are maintained. Looking more broadly at the Government Programme, externalisation tendencies in the asylum policy and the protection of external borders prevail too.

While the FPÖ was a trendsetter in othering refugees and restricting their rights, it is hard to say whether elements of populism represented by the FPÖ have actually led to more restrictive refugee laws and policies, or whether the othering of refugees has contributed to the success of the FPÖ in the first place. Restrictions were in place even before the FPÖ rose to power. Yet, it is undisputed that the politics of the FPÖ, which were largely also adopted and continued by the ÖVP, brought further restrictions. At least in the Austrian case a clearcut, black or white answer to the question as to whether the restriction of refugee rights accelerates democratic decay or whether it is the other way round, cannot be provided. Both phenomena are more likely part of a symbiotic and constantly amplifying process. The more populists dominate politics, the more they will restrict refugee rights. Further restricting refugee rights might easily lead to more support for populists. The more populists have to say, the worse this is for democracy. A bad state of democracy, in turn, is a more fruitful ground for populism. Hence, populism, the restriction of refugee rights and democratic decay is a downward spiral that is not easily hindered. Yet, a strong legal culture and support for the constitution are vital. In Austria this support is ensured by the most fundamental principles of constitutional law that can only be derogated by a public referendum according to Article 44 (3) of the Austrian Constitution. This provides a strong arsenal for resilience. Further specific regulations, such as a strong commitment to human rights and a robust safeguarding of the democratic process are supportive too. This, however, is not given. The Austrian Constitutional Court, constitutional scholars and politicians as well as civil society must work to support liberal democracy and its values.

12.1 Introduction

In constitutional terms, the current moment in world history is marked by democratic decay and constitutional erosion.Footnote ¹ Within Europe, Poland and Hungary are the blueprints of ‘illiberal democracy’Footnote ² and ‘constitutional backsliding’ in the hands of authoritarian populists.Footnote ³ But given the transnational nature of the challenges that confront liberal democracy, no state can be presumed risk-free from the populist threat.Footnote ⁴

In Belgium, as in other European countries,Footnote ⁵ the (constructed) ‘migration crisis’ of 2015 has further boosted support for right-wing populist policies. As Cas Mudde has argued,

The image of a perfect storm points towards complex entanglement of processes of democratic decay, (right-wing) populism and migration. In a range of countries, would-be authoritarian populists have seized upon a series of crises – in Europe, these include the economic crisis of 2008, the ‘migration crisis’ of 2015, the ‘terrorism crisis’ of 2015–2016 and most recently the COVID-19 crisis of 2020–2022 – to centralize state power in their own hands. They have done so by incrementally undermining core elements of constitutional democracy, in particular the separation of powers and the rule of law.Footnote ⁷

Although there are clear linkages between migration, right-wing populism and democratic decay, a conceptual distinction should nevertheless be maintained between the undermining of migrants’ rights, on the one hand, and genuine democratic decay, on the other.Footnote ⁸ The former occurs in virtually all European states, whereas the latter is – for now – limited to a few specific states (Poland and Hungary, in particular).Footnote ⁹ Even when restrictions of migrants’ rights are widespread and far-reaching, this phenomenon does not amount, in and of itself, to a dismantling of the constitutional-democratic order. The need to retain a conceptual distinction between both processes – the undermining of migrants’ rights and democratic decay – is confirmed by the Belgian case.

In Section 12.2, we argue that the risk of genuine democratic decay in Belgium is minute, given that a series of constitutional safeguards prevents hostile take-over of government by authoritarian populists. These constitutional safeguards ensure, in particular, that the separation of powers, and the checks and balances it entails, continues to function adequately. In other words, a robust constitutional framework provides for constitutional resilience against the threat of authoritarian populism in Belgium.

At the same time, we posit that an indirect relationship does exist between the (hypothetical) threat of would-be authoritarian populists to constitutional democracy and the undermining of migrants’ rights. A genuine risk exists – and has materialized in Belgium – that ‘mainstream’ political parties co-opt nativist and populist policy proposals on migration in an effort to cut off support for radical-right populist parties. To put it crudely, migrants are being thrown under the bus in exchange for electoral support. Particularly during the 2014–2019 legislative term, severe disregard for and active targeting of migrants by the Belgian federal government has resulted in systematic weakening of their rights, a process we refer to as the crumbling of migrants’ rights.

In Section 12.3, we show that a series of legislative initiatives and policy decisions on migrants in the 2014–2019 period has contributed to the crumbling of migrants’ rights. We also, and particularly, set out to identify elements of legal resilience against this process. In doing so, we build on the conclusion of Section 12.2 that the separation of powers remains intact in Belgium. As a result, and unlike in countries like Poland and Hungary, civil society actors have been able – and often forced – to resort to the independent courts in a bid to safeguard migrants’ rights in the face of restrictive laws and regulations. Our main finding is that at a time when lobbying and policy suggestions no longer sufficed, judicial action became a prominent tool to cut back rights-restricting migration measures, but with mixed results. This leads us to the overall conclusion that, in Belgium, the combination of a vocal civil society and an independent judiciary provides a relevant site of resistance against the dismantling of migrants’ rights. From a migrants’ rights perspective, however, the judicial outcomes lead to a nuanced assessment.

12.2 Constitutional Resilience against (Would-Be) Authoritarian Populists

We begin by explaining why, in our estimation, the risk of genuine democratic decay in Belgium is minute, in light of a series of safeguards embedded in the constitutional framework, as it operates in practice.

Any hostile take-over of government, followed by incremental undermining of the rule of law and the separation of powers, as has occurred in Hungary and Poland, could arguably only come from the radical-right and nativist Vlaams Belang (Flemish Interest) party. Vlaams Belang combines the thin ideology (or political style)Footnote ¹⁰ of populism with a nationalist (i.e. pro-Flemish), nativist (i.e. anti-migration) and radical-right (especially anti-Muslim) ideology.Footnote ¹¹ In 2004, the party’s predecessor Vlaams Blok (Flemish Bloc) was found to have incited hatred and discrimination against migrants by blaming them for the ‘misery of the native population’ under the slogan ‘Our own people [volk] first’.Footnote ¹² In the wake of the criminal trial, the party changed its name to Vlaams Belang and reached its electoral zenith, claiming twenty-four per cent of the vote in the 2004 regional elections.Footnote ¹³

Although the party’s official discourse and programme have since ‘softened’,Footnote ¹⁴ discourse analysis shows that it continues to ‘mobilize populism and (sub-state) nationalism’.Footnote ¹⁵ Aside from advocating for increased use of direct democracy, as populist parties tend to do, Vlaams Belang continues to construe migrants and Muslims as dangerous ‘outsiders’ from which the ‘pure’ Flemish people must be protected; something the ‘politically correct elite’ is unwilling or unable to do.Footnote ¹⁶ It is, in other words, evident that Vlaams Belang draws heavily on the right-wing populist playbook that has served Fidesz (in Hungary) and Law and Justice (in Poland) so well.

Until recently, this was not much cause for concern as Vlaams Belang was thought to have been (again) reduced to a marginal party after its 2004 electoral success (24%), with a large segment of its former electorate now supporting the right-wing nationalist Nieuw-Vlaamse Alliantie (N-VA – New Flemish Alliance). In the 2014 federal elections, for instance, Nieuw-Vlaamse Alliantie secured 32.5% of the vote whereas Vlaams Belang managed to convince just 6% of the electorate, barely above the electoral threshold of 5%. In the wake of the 2015 ‘migration crisis’, however, recent election cycles have been a powerful reminder that the Vlaams Belang’s populist discourse and radical-right policies continue to appeal to the electorate. During the 2019 national elections, Vlaams Belang rebounded from its dismal 2014 result to claim 18.5% of the vote (results in Flanders). This corroborates findings by Dennison and Geddes that anti-immigration parties have benefitted from an increase in salience of migration issues among voters in the wake of the ‘migration crisis’.Footnote ¹⁷ Pre–COVID-19 polls even put Vlaams Belang at an all-time high of twenty-eight per cent of voting intentions, well ahead of all other parties, including the Flemish-nationalist Nieuw-Vlaamse Alliantie (21%).Footnote ¹⁸ In light of these data, renewed attention for the (hypothetical) threat of Vlaams Belang to the Belgian constitutional order is warranted.

12.3 Crumbling Migrants’ Rights and Strategies of Resistance

In Belgium, mainstream political parties are not attempting to capture the courts, control the media or shut down universities. There is, in short, no genuine risk of rule of law backsliding. Nevertheless, throughout this section we reveal a pattern of restrictive migration laws and policies that has caused migrants’ rights to crumble in Belgium. We simultaneously show that, in terms of resistance to this development, civil society organizations and courts emerge as crucial actors to secure a minimum level of human rights compliance and uphold the rule of law. However, even though the Constitutional Court and the Council of State have put a brake on some of the more restrictive migration measures, they did not adopt a maximalist approach to the protection of migrants’ rights.

Migration has been a sensitive political issue in Belgium in recent years. This is evident – to pick just one prominent example – from how the previous federal government fell over public endorsement of the UN Global Compact for Safe, Orderly and Regular Migration at the Intergovernmental Conference in Marrakesh at the end of 2018. A few months earlier, then Prime Minister Charles Michel had expressed Belgium’s support for the Compact at the UN General Assembly. This endorsement went by almost entirely unnoticed. In the lead-up to the more public Intergovernmental Conference in Marrakesh, however, the Global Compact suddenly became a subject of heated debate. The right-wing nationalist Nieuw-Vlaamse Alliantie, a key member of the coalition government that had previously not objected to endorsement of the Compact, began to raise critical concerns against it.Footnote ⁵⁹ The ethno-nationalist and populist nature of the debate is illustrated by the fact that – while a parliamentary hearing with expert witnesses on the Global Compact was ongoing – the Nieuw-Vlaamse Alliantie launched a malicious social media campaign against the Compact. Using style, images and language eerily similar to that of the radical right Vlaams Belang, the party firmly rejected what it now called the ‘Marrakesh Pact’.Footnote ⁶⁰ The radical shift in discourse was arguably due to the Nieuw-Vlaamse Alliantie belatedly realising that a policy decision on migration it had endorsed as coalition partner (i.e. endorsing the Global Compact) could well lead to a substantial loss of votes to Vlaams Belang. Ultimately, the Nieuw-Vlaamse Alliantie left the federal government over a non-binding international instrument – a unique event in Belgian constitutional history (where coalition partners rarely leave coalition governments prematurely, and definitely not over a non-binding text).

We focus our analysis in this section on the 2014–2019 period because this legislative term has come to an end and thus allows for an overall analysis. From 2014 until 2018, Theo Francken of the Flemish-nationalist Nieuw-Vlaamse Alliantie was Secretary of State for Asylum and Migration. When his party left the government at the end of 2018 over the Global Compact, the liberal minister Maggie De Block became responsible again for asylum and migration – as had been the case in the 2009–2014 legislative term.

In this five-year period, a landslide of legislative and regulatory changes have aimed to ‘optimize’ the asylum procedure, fight against sham relations, increase (child) immigration detention, facilitate removal for reasons of public order and national security, and emphasize migrants’ individual responsibility to integrate.Footnote ⁶¹ As a result of all these measures, migrants’ substantive and procedural rights have been put under pressure. This is not to say that migrants’ rights had not already been weakened prior to 2014, for instance in relation to family reunification.

The rights-restrictive measures adopted between 2014 and 2019 have met resistance. Civil society organizations have been vocal in denouncing the lack of nuance, accuracy and inclusivity in the public debate. But their proposals, geared towards human rights compliant policy changes, were usually not taken into account, as the space for dialogue with civil society virtually disappeared (12.3.1). In response, civil society organizations have begun to challenge the legality of (some of) these measures by filing complaints at the Constitutional Court (12.3.2) and the Council of State (12.3.3).Footnote ⁶² In some instances, but certainly not all, these courts have taken up their role of watchdog of human rights by annulling, suspending or nuancing the most far-reaching provisions. Finally, some cracks in the separations of powers could be observed, exemplified by the disregard for (quasi)judicial decisions – a worrying tendency from a rule of law perspective (12.3.4). In the conclusion we emphasize the critical role of civil society and courts in challenging rights-restrictive migration policies as the main takeaway from the Belgian case.

12.4 Conclusion

Our analysis in this chapter shows that the Belgian constitutional framework provides relatively robust protection against democratic decay. A series of primary and secondary constitutional safeguards renders hostile take-over of government by would-be authoritarian populists extremely unlikely (if not impossible). Rule of law backsliding of the variety witnessed in Poland and Hungary thus appears inconceivable in Belgium. Crucially, however, most of the constitutional safeguards that prevent a hypothetical slide towards authoritarianism only provide weak constraints, at best, against the very real and systematic undermining of migrants’ rights. A PR electoral system, for instance, provides no bulwark against governing parties that agree to undermine migrants’ rights. This situation is aggravated by the fact that persons without Belgian citizenship have no voting rights in federal and regional elections, which gives politicians less of an incentive to duly consider their fundamental rights.

In another sense, therefore, Belgium is just as vulnerable as other European states to co-optation of restrictive migration proposals by mainstream parties. As we have shown throughout this chapter, the dangers of co-optation in Belgium are real. Belgian migration policy in the period 2014–2019, formulated and implemented under a centre-right coalition, has been characterized by multiple efforts to weaken the legal and actual position of migrants in general, and asylum seekers, family migrants and irregular migrants in particular. Fundamental rights, such as the right to respect for family life and the right to liberty, are under pressure. The accumulation of various ‘small’ legislative and policy changes has caused migrants’ rights to crumble.

Our analysis indicates that the combination of a strong civil society and an independent judiciary is key to offer resistance against this development. Civil society actors initiating judicial proceedings has been the most effective means of challenging rights-restricting migration measures in Belgium. If no cases for annulment of such measures are brought before the courts, they cannot annul them. Spurred on by civil society initiatives, the judiciary has at least halted some of the most egregious measures infringing upon migrants’ rights, such as the asylum quotas. Yet, more subtle or systemic measures aimed at undermining migrants’ rights have often not been questioned by these same courts in their – at times legalistic and formalistic – analysis. The Constitutional Court seems to focus, for instance when assessing the legality of the Asylum Act, on its compatibility with clear, delineated provisions included in EU law (in particular the Common European Asylum System). By contrast, the Court seems to be more reluctant to engage in broader assessments as to how certain changes, especially cumulatively, impact on human rights. In this sense, our conclusion is that the highest courts of Belgium have safeguarded minimal respect for migrants’ rights, whereas a maximalist interpretation of migrants’ rights could have led to a more stringent and critical review of the contested migration laws and regulations.

13.1 Introduction

Migration and the rights of migrants pose a challenge to state sovereignty. While it is widely accepted that states have exclusive control over the rules governing their own nationality and are only requiredFootnote ¹ to admit their own citizens into their territory, there are limits to this control when it comes to migrants; asylum seekers, in particular.Footnote ² The right to seek and enjoy asylum and the principle of non-refoulement put constraints on a state’s power to decide who has a right to entry, as they provide the individual with a right, if not to remain in the territory, at least to have one’s claims for protection properly assessed, and to not be deported during the process. In an increasingly globalised world, this challenge to state sovereignty has become an issue of growing controversy. Controlling migration and the right to entry has become, as Dauvergne puts it, a core element, even ‘the last bastion’, of sovereignty.Footnote ³ From this perspective, the arrival of migrants in a territory, in particular migrants who may be able to challenge the measures of control imposed on them, is easily perceived as a threat. In the context of globalisation, controlling borders may also be linked to protecting national identity, which includes some and excludes others. Among the excluded are migrants, but also in some cases those who do not conform to the image of the ‘ideal’ citizen (for example minorities of different kinds).

While the issue of migration has long been debated, in recent years it has climbed up the political agenda at the global, regional and national level. Although few states in practice have ever had a particularly generous migration and/or refugee policy,Footnote ⁴ it could be argued that there has been a change in attitudes and in the tone of the debate over the last decade or so. Possible reasons for these changes include the securitisation of migration following the 9/11 attacks, the 2007/2008 economic crisisFootnote ⁵ and the rise of right-wing populism and nationalism. In Europe, the ‘refugee crisis’ of 2015/2016 had the effect not only of opening the door for measures aimed at controlling migration that would have previously been considered extreme, but also of pushing limits in other fields, such as negative rhetoric about migrants and migration, eroding migrants’ rights, and a deteriorating respect for key elements of the democratic system, including the legislative process. The resilience of legal systems established to safeguard individual rights and the democratic system was challenged during the ‘refugee crisis’ and, it could be argued, has continued to be so in its aftermath. The desire not to end up in the same situation (i.e., the ‘crisis’) again, combined with the rise of right-wing populism targeting migration as a threat to Western societies, in many countries in Europe and elsewhere has meant that the delicate balance between the interests of migration control, rights protection, and stability in the democratic process has been tilted in favour of the first of these interests.

It has been argued that extensive restrictions of migrants’ rights in a time of populism is a sign of constitutional crisis, in the sense that incremental and systematic undermining of human rights is the result of democratic decay.Footnote ⁶ On the other hand, it has also been proposed that while democratic decay and constitutional crisis may often coincide with restrictions of migrants’ rights through law and policy, the latter is not by default an indication of the former.Footnote ⁷ As Aleinikoff suggests, restrictive migration policies and intolerance against migrants in a society ‘may also be the result of everyday politics, as democracies define and redefine understandings of membership and the benefits that attach thereto’,Footnote ⁸ initiated by, for example, economic considerations or perceived threats to national security. In both cases, a central issue is the possibilities and limits of legal resilience against the dismantling of migrants’ rights.

There are several reasons why Sweden offers an interesting case for a discussion on legal resilience in this context. One is the reorientation of Swedish migration law and political discourse on migration in the wake of the ‘refugee crisis’.Footnote ⁹ This reorientation, it could be argued, is due both to the actual strain put on the Swedish reception and welfare systems by the large influx of refugees in 2015, and to the framing of the events of late 2015 and early 2016 as a crisis not so much for the refugees as for Swedish society. Much effort has since gone into preventing Sweden from ending up in the same situation again. Legislation limiting migrants’ rights in various ways has been introduced, and the rhetoric has changed from ‘Refugees Welcome’ to casting suspicion on asylum seekers and their motives, labelling those arguing in favour of a return to the previous policy as ‘irresponsible’, ‘irrational’, and ‘goodness junkies’. A second reason concerns ‘crisis’ as such. The narrative of crisis – having been and still being in a state of crisis, avoiding a future crisis – we argue, has played an important role in underscoring the view of migration and migrants as a threat to the welfare state, law and order and to national security. This view in turn has been used to legitimise a migration policy based on the aim to control and deter rather than to manage migration in a way that is respectful of both state sovereignty and the rights of the individual. This narrative has also been used to facilitate and legitimise a revision of Sweden’s self-image that claims generosity and solidarity with those in need as two of its defining features.Footnote ¹⁰

A third reason concerns the rise of right-wing populism in the country and the effects this has had on, at least indirectly, national migration policy. For many years, Sweden was an exception in Europe where populist parties increasingly gained influence and power. While in the neighbouring countries of Norway and Denmark, right-wing populist parties secured access to formal political power decades ago, their counterpartFootnote ¹¹ in Sweden – the anti-immigration, nationalist party the Sweden Democrats (SD) – for a long time were on the political margins. Any interaction with SD on the part of the mainstream parties prompted considerable stigmatisation and even though SD gained seats in the Riksdag in the 2010 general election, the party remained fairly isolated in Swedish politics. This changed, however, in the aftermath of the 2015/2016 ‘refugee crisis’. The ‘crisis’ not only led to a U-turn in Swedish migration policy towards a substantially more restrictive approach to migrants and migrants’ rights than what had previously been the norm; it also became less important for mainstream politicians on the right to avoid associating with SD and their stance on migration and migrants’ rights.

Against this background, the aim of this chapter is to discuss, from a Swedish perspective, the possibilities and limits of legal resilience against the deconstruction and erosion of migrants’ rights amid the rise of populism. We also discuss whether limitations on migrants’ rights in the Swedish context should be taken as signs of democratic decay and constitutional crisis. In the context of these two issues, we explore the potential implications of the ‘crisis’ rhetoric in terms of how laws are drafted and implemented. We start by presenting our points of departure regarding the concept of ‘populism’ and populism in Sweden.

13.2 ‘Populism’ and ‘Populists’

13.3 Swedish Migration Law in Light of the 2015 ‘Refugee Crisis’Footnote ⁴⁴

13.4 The Constitutional Framework, Core Constitutional Values and Legal Resilience

In order to understand a country’s core constitutional values, it is necessary to look to its history. A country’s constitutional order and the values it expresses reflect the country’s political development and the ideals and experiences shaping that particular society.Footnote ⁶⁷ In Sweden, the way in which public power may be exercised as well as the relationship between government, parliament, the courts, government agencies and citizens draws on administrative structures and traditions established centuries ago, with the strong position of public administration being a defining feature. It can be noted that for centuries, institutions of public administration (government authorities, public officials) were where citizens directed their complaints. Courts were less important and relatively inaccessible to the average citizen or resident.Footnote ⁶⁸ The important role played by public administration remains a key factor in Swedish constitutionalism today.

The Swedish Constitution consists of four fundamental laws: The Instrument of Government, the Act on Succession (from 1810), the Freedom of the Press Act (from 1949, dating back to 1766), and the Fundamental Law on Freedom of Expression (from 1991). Since the seventeenth century, the country has had several fundamental laws entitled the Instrument of Government. A key purpose of the Instruments of Government over the years is to provide the framework for the exercise of public power. The 1809 version of the Instrument of Government focused on separation of powers. In 1921, while this nineteenth-century Act was still in place, parliamentarism was introduced and the balance of power accordingly shifted from the King to the parliament and the government. However, this reshuffle was not reflected in the Constitution: instead, for decades an informal agreement between the King, the parliament and the government on accepting and adapting to the new forms of democracy guided their interactions and the division of powers. Political focus instead was on anchoring the young welfare state more firmly to Swedish society and administration by a number of significant societal reforms. The informal agreement on ‘the rules of the game’ of Swedish democracy were not formalised until 1974 when a new Instrument of Government entered into force, removing the idea of a pure separation of powers from the Constitution and instead formally recognising that the will of the people is supreme. The first article of the Instrument of Government thus reads as follows:

That all public power proceeds from the people is the core value of the Swedish Constitution and its basic principle. It means that power, at least in theory, lies primarily with the parliament and the parliamentarians (the representatives of the people). The second part of the gateway article, stating that public power is to be exercised under the law, reflects two additional core values, namely the principle of legality and the principle of objectivity.Footnote ⁶⁹

That all public power in Sweden proceeds from the people means that the country belongs to a minority of modern parliamentarian democracies which does not apply the Montesquieuean separation of powers, with its emphasis on the role of the courts and with substantial powers accorded to the executive branch. Consequently, Sweden does not have a constitutional court. Instead, the Instrument of Government provides all courts and public bodies with the right as well as the duty to put aside any legislative act which contradicts the Constitution or which has been decided in a way not in accordance with the constitution.Footnote ⁷⁰ A system where judicial review is performed only when the legislation has entered into force and its application in a concrete case has led to difficulties related to the constitutional aspects of the act, has been referred to as decentralised or weak-form judicial review.Footnote ⁷¹ This limited approach to judicial review – which Sweden shares with the other Scandinavian countries – must, however, be understood in the context of the constitutional history and the parliamentary-centred conception of democracy in these countries, both of which differ from many European states where constitutional courts play a key role, including in their review of acts passed by parliament.Footnote ⁷² This approach should also be seen in light of socio-political factors common to the Scandinavian welfare states, such as faith in the state as a protective institution and an emphasis on the common good of the community rather than on individual rights.Footnote ⁷³

There is indeed a constitutional body – the Council on Legislation – tasked with advising the government in the legislative process on whether a proposed act might impact on a constitutional matter or infringe upon fundamental rights. While the reports of the Council are only advisory and not binding, they are usually accorded considerable weight by the government in their drafting of the final version of a government bill. The Council’s comments and recommendations on controversial suggestions are often also picked up by the media. The Council thus exercises real influence in the legislative process. Yet there has been a tendency to accord less weight to the Council’s recommendations when there is a strong political incentive to put certain legislation in place, regardless of its quality. This is what happened with the legislation on migration proposed by the government during and after the 2015 ‘refugee crisis’ (briefly outlined above). The Council on Legislation provided devastating criticisms of both the proposal for the 2015 ordinance on border control and identity checks, as well as the proposal for the 2016 Temporary Law and the 2019 proposal on prolongation. The Council was critical of the poor qualityFootnote ⁷⁴ of the legislation, both as regards the legislative process and the legislation itself.Footnote ⁷⁵ Regarding the 2015 ordinance, the Council in its comments said that the legislative process in this case did not live up to minimum standards due to the great haste which characterised it, the absence of an analysis of the constitutional implications of the proposals on border controls and the inadequate preparations of the proposal in general.Footnote ⁷⁶ The critique did not, however, have much effect as the government presented a revised proposal to the Riksdag in mid-December 2015 that was then adopted just before Christmas 2015. The 2016 proposal on the Temporary Law received equally severe criticism: the Council emphasised that this proposal had also been hastily prepared, leading to unsatisfactory analysis of the proposal’s efficacy as well as its consequences.Footnote ⁷⁷ The Council furthermore was critical of the material content of the law, questioning its compatibility with Sweden’s international obligations and Swedish legal tradition. However, in this case, the government went ahead with the proposal and drafted (with only minor revisions of the previous proposal) a bill which was presented to the Riksdag, in which a large majority in June 2016 voted in favour of the law. When the government proposed a prolongation of the 2016 law, the Council on Legislation for similar reasons was equally critical of the legislative process, albeit to no avail.Footnote ⁷⁸ The conclusion to be drawn is that while the Council of Legislation usually functions as an obstacle for poor legislation, including such that has implications for the rights of individuals or groups or other constitutional matters, its advisory function means that the government can ignore its recommendations without doing anything formally wrong. It could be argued that this has a negative effect on the legal resilience of the system towards attacks on fundamental constitutional values.

The independence of the administration is another core value in the Swedish Constitution. The administrative bodies governed by the government are tasked with implementing and realising government policy. At the same time, they are independent in the sense that neither the government, the Riksdag, nor any other public authority ‘may determine how an administrative authority is to decide in a particular case involving the exercise of public authority vis-à-vis a private subject or a local authority, or the application of law’.Footnote ⁷⁹ This independence, deeply rooted in Sweden’s constitutional and administrative law history, is also linked to a firm prohibition of government ministers making individual decisions in government affairs. This means that individual government ministers do not have a right of command over the administrative authorities and therefore cannot, for example, intervene in politically sensitive issues and/or individual cases, such as controversial cases of impediments to expulsion orders due to non-refoulement issues. The principle of the independence of the administration is closely linked to the ideal of the public servant as the guardian of democracy tasked with alerting their superiors (including politicians) when their actions are illegal, unethical or improper.Footnote ⁸⁰ As a public servant, one is responsible for each decision one takes and one has the duty to decide in all matters indicated by the law in accordance with the law. Public servants in this sense are instrumental in the realisation of the rule of law. The independence of the administration and the role to be played by the civil servant contribute to legal resilience against political influence being exercised in concrete cases.Footnote ⁸¹

The transparency of the legislative process constitutes another key element or value in the Swedish Constitution. All government bills are subjected to a multi-step preparation process involving different parliamentary committees, government inquiries and a consultation process through which the necessary information and opinions shall be obtained from the public authorities concerned (and local authorities as necessary).Footnote ⁸² Organisations and individuals are also to have the opportunity to express an opinion as necessary. Following constitutional practice, consultation is considered mandatory in legislative matters.Footnote ⁸³ The objective is for the legislative proposal to be as good as possible in order to avoid difficulties in implementation (for courts and other agencies), which could ultimately undermine the legitimacy of and trust in the system. The legislative process is subject to certain timeframes – the consultation process, for example, is generally to be allowed a minimum of three months – aimed at allocating sufficient time for preparation of draft legislation to ensure its quality. In addition, the timeframes are put in place for the protection of the minority in the Riksdag by allowing for deliberations to be held before the vote. These are thus measures introduced to put constraints on the will of the majority and its chances of ruling unchallenged. The system is accordingly construed in such a way that time in itself is a safeguard and a means to ensure legal resilience.

It should, however, be noted that the majority of the steps included in the legislative process are not explicitly stated in the Instrument of Government, but are instead ‘informal’, unwritten rules, developed through well-established practice. In the case of the 2015 border control and identity check regulation, these informal rules were upheld in name only. Consultations were indeed carried out, but public authorities and other actors were given no more than around forty-eight hours to analyse and respond to proposals that included serious rights limitations on the right to seek asylum and the right to movement and which would provide the government with far-reaching powers to close Sweden’s borders and effectively introduce a state of emergency.Footnote ⁸⁴ This lack of respect for the consultation process was a key part of the Council of Legislation’s characterisation of the legislative process in this case as sub-standard (as described above). In the case of the 2016 Temporary Law, while the constitutional practice on timeframes for the consultation process indeed was followed not only in form but also in substance (albeit with a tight schedule), the impact of the comments on the final product, the government bill, were minimal, even though a majority of the consultation bodies had been very critical of the proposal, not least regarding rights limitations. The Council on Legislation again heavily criticised the government for the legislative process’s lack of quality. This critique was picked up by the media and prompted significant debate.

The weakness of informal rules on how the constitutional safeguards are to be applied is such that they can be more easily disregarded than rules explicitly included in the Constitution. This is what happened in Sweden when the legislation during and in the aftermath of the 2015 ‘refugee crisis’ was drafted. In these cases, the feeling of crisis and of urgency, promoted and pushed by politicians both within and outside of government, was allowed to trump the informal rules that are intended to provide context to and fill the written rules of the Constitution with meaning. While this erosion of essential elements is notFootnote ⁸⁵ a phenomenon limited to migration, it has been particularly evident in this context.Footnote ⁸⁶ In the current system, there is no real possibility to prevent poor legislation from being adopted, as long as there is a majority for it in the Riksdag. A Constitution that relies on all actors playing according to both formal and informal rules, and where respect for the democratic system is implicit rather than spelled out, becomes vulnerable in situations when the common understanding of ‘how things are done’ is put aside or ignored. This might occur when the government decides that a certain matter is of such urgency that immediate action is required, or when the country is in an exceptional situation. The 2015 ‘refugee crisis’ was such a situation.

Lastly, we turn to fundamental rights protection as a core value. Sweden is an interesting case as its Constitution on the one hand includes specific Acts protecting certain rights and freedoms, namely the Freedom of the Press ActFootnote ⁸⁷ and its ‘sister act’, the Fundamental Law on Freedom of Expression, which together provide a constitutional structure exclusively applicable and construed to guarantee the highest possible degree of protection for transparency and free speech. On the other hand, it can be argued that protection of fundamental rights and freedoms has not been a core priority in the Constitution, whose ‘catalogue of rights’ (Chapter 2 of the Instrument of Government) is relatively limited (civil and political rights only), and was only introduced in 1980.Footnote ⁸⁸ The reluctant approach to ‘rights talk’ must, like the approach to judicial review discussed above, be understood in the context of the emphasis on establishing a strong government and a welfare state. It is equality and inclusiveness, rather than fundamental rights protection, that characterised much of twentieth-century politics in Sweden, dominated for decades by the same party (the Social Democrats).Footnote ⁸⁹ In addition, the school of Scandinavian Legal Realism and its insistence on the primacy of politics over law which constituted a dominant presence in Nordic legal and political discourse in the mid-twentieth century, has been held to be, as Strang puts it, ‘a major reason for the comparatively weak protection of minority, individual and human rights in the Nordic countries’.Footnote ⁹⁰ The position of rights protection on the constitutional level in Sweden, however, was significantly strengthened with the incorporation into Swedish law of the European Convention on Human Rights in 1995 and the general Europeanisation of Swedish law due to joining the European Union in the same year, both of which have led to rights protection enjoying greater priority in courts as well as in policymaking than before. In this sense, fundamental rights as a core constitutional value have gained ground. This is visible also in the courts. In the context of migration, recent case law from the Migration Court of Appeal exhibits the resilience of the legal system against excessive limitations on migrants’ rights. In a 2018 case concerning the right to family reunification based on the 2016 Temporary Law, the Migration Court of Appeal found that refusing an eight-year-old boy with subsidiary protection status the right to reunite with his parents in Sweden would be contrary to Article 8 ECHR and the Convention on the Rights of the Child.Footnote ⁹¹ This judgment prompted the government, in the 2019 bill on prolonging the Temporary Law, to open up the possibilities for family reunification for the category of subsidiary protection.Footnote ⁹² In a 2020 judgmentFootnote ⁹³ on the right to remain in Sweden on humanitarian grounds, the Migration Court of Appeal found that expelling a fourteen-year-old girl born in Sweden but who for long periods of her life had not had a residence permit would be contrary to Sweden’s obligations under Article 3 of the Convention on the Rights of the Child (the Convention was formally incorporated into Swedish law as of 1 January 2020). Both judgments are examples of when the rights of individual migrants are found to trump the interest of the state in limiting and controlling migration.

Finally, a few words should be said about how the Swedish Constitution, in particular the core values outlined above, functions in times of crisis, emergency or in other times of urgency. While there is a chapter on war and danger of war in the Instrument of Government (Chapter 15) and provisions on how constitutional power can be transferred from the Riksdag to the government,Footnote ⁹⁴ the Constitution does not include any specific rules addressing crisis or other emergencies in peacetime. While there is a certain preparedness for such situations included in the legal system (including acts allowing the government to decide on a range of matters in urgent situations), the Constitution as such does not allow for general diversions from the division of powers, the legislative process, or how fundamental rights may be limited. Instead, situations of crisis are intended to be handled within the existing framework, including the unwritten rules established by constitutional practice referred to above.Footnote ⁹⁵ This means that in a situation such as the 2015/2016 ‘refugee crisis’, or the (at the time of writing) ongoing coronavirus pandemic, there is no constitutional support for abandoning standard procedure. While the system indeed allows for some leeway, for example, as regards timeframes for the drafting of new legislation and the consultative process when new legislation urgently needs to be put in place, the fact remains that a crisis narrative (such as the one framing the large influx of refugees and migrants in 2015) cannot be used to legitimise serious derogations from core constitutional rules, values and practice.Footnote ⁹⁶

In sum, then, we hold that the core values described here, taken together, form the legal resilience of the Swedish system. There are, as discussed above, weaknesses built into the system such as the relatively limited system of judicial review, the trust placed in adherence to informal rules, and the limited scope of fundamental rights included in the Constitution. At the same time, core values such as the independence of the administration and the transparency of the legislative process are powerful tools to prevent anti-democratic and anti-pluralist parties or politicians from pushing through their ideas. The Council on Legislation, while having an advisory function rather than that of a constitutional court, nevertheless plays an important role. It is suggested here that the inherent inertia of the administrative system and the legislative process is a key element of legal resilience against rights erosion, for migrants as well as for other vulnerable groups. The protection of fundamental rights as a core constitutional value and the increasing weight accorded to individual rights protection in the courts, including migrants’ rights, contribute to the legal resilience of the system against rights erosion. In addition, the fact that the Swedish Constitution does not allow for derogations from these standards and values except for in very specific situations – war or danger of war – further contributes to the stability of the system. Therefore, at least on the surface, constitutionalism seems to provide a basic protection against populism and acts as a guarantee for liberal pluralism in Sweden. That said, there remains a warning sign in the extent to which the right-wing populist narrative on migrants and migration, for so long advocated by the Sweden Democrats, appears to have taken root, and the effects that this might have on further rights limitations for migrants and indeed for other groups, such as minorities. The envelope indeed has been pushed on this point, and may be further so, particularly if mainstream political parties on the right continue to facilitate and normalise radical right-wing populist views and narratives, even adopting them as their own.

13.5 Conclusion

So, the question arises, what can be done? Can one limit the growth and influence of populism? Gustafsson suggests two ways in which this can be done (although how fruitful they might be is another matter). Firstly, one could change the rules relating to populist groups. This is, however, not the easiest thing to do. It is never easy to limit and prohibit authoritarian political parties and organisations – at least in a democracy. Prohibitions of political parties and organisations are difficult to introduce and to apply. This is even more difficult when talking about populist parties that have become important actors in elections and public debates.Footnote ⁹⁷ This leads us to the second option: to limit the rights relating to freedom of expression, organisation, rule of law and legitimate opposition. By taking these measures, it would be more difficult for populist parties to gain and retain power. In the Swedish context, the Constitution includes a possibility to prohibit racist organisations.Footnote ⁹⁸ Although this possibility has been investigated on several occasions in recent decades,Footnote ⁹⁹ the prohibition has yet to be used. The tools inserted in a democratic constitution seem to be rather difficult to combine with upholding the constitutional framework, especially when the key values of transparency, free speech and political rights are intimately intertwined with the core principle of the ‘will of the people’. Unfortunately, seeking to prohibit populist and anti-democratic movements often ends up violating the very values and norms one seeks to protect. Perhaps instead, the answer is tolerance and to strive not to use the whole spectre of constitutional powers. In addition, the respect for and understanding of informal constitutional rules, individual rights, and the value of constitutional norms in practice as well as in theory should be strengthened.

Every country has its own constitutional experience. In Sweden, particular challenges for understanding the importance of protecting fundamental human rights and the value of a strong constitution might be posed by the fact that for centuries Sweden has not experienced emergencies such as wars and revolutions that could have forced us to make crucial decisions threatening different interests at the same time. Nor has Sweden been under authoritarian rule. When a country has not experienced a state of emergency, authoritarianism and limitations on fundamental civil and human rights, it might be more difficult to appreciate the importance of strong democratic safeguards of constitutional values such as the rule of law, transparency and protection of fundamental rights. By no means do we suggest that such negative experiences might act as a vaccine against authoritarianism or populism; this would be naïve given the numerous examples indicating the opposite. Rather, we suggest that the development in Swedish migration policy since 2015 towards restrictions of migrant’s rights, the willingness of mainstream political parties to adopt and act according to radical right-wing narratives on migrants and the lack of respect for various elements in the legislative process in the name of urgency may at least in part be a consequence of not having experienced what it means to live in a society where democracy and rights are limited, not for all, and in form more than content. Perhaps one should not lay the blame solely at the feet of the populists for the lack of a democratic compass in recent years but also look to those politicians and political parties that pave the way for them, transforming fundamentally extreme ideas into mainstream politics without admitting the risks this might entail for core democratic values. To argue that Sweden is in a situation of constitutional crisis and democratic decay as a result of the restrictions of migrants’ rights would, however, be going too far, given the absence of vital signs of democratic backsliding such as erosion of the judiciary’s independence, limitations on the freedom of the press and electoral manipulation. Instead, the changes in approach to migrants and migration should be understood as a development that may coincide with a broader pattern of challenges to core democratic values but which nevertheless is a separate phenomenon.

14.1 Introduction

The editors of this volume put two research questions to the contributors. First, what is the connection between populism, restrictive migration laws and democratic decay? Second, what are the possibilities of legal resilience against restrictive migration laws? In this chapter, I argue that administrative law lies at the heart of both questions. Triggered by the first research question this chapter asks how populist anti-migration discourses have made it to actual laws and legal decisions. It asks what legal infrastructure makes restrictive migration laws possible in the first place. My answer is administrative law.Footnote ¹ Rather than understanding populist restrictive migration policies as a failure of ECHR, EU and constitutional law to protect migrant rights, this chapter looks at how administrative law is distinctively well-suited to produce restrictive migration laws. By distinctive I mean better than criminal and civil law. The focus on administrative law also informs my answer to the second question: resilience against restrictive migration laws will remain marginal and incidental as long as the legal profession fails to critically examine and challenge the basic features of the legal infrastructure underpinning migration policies, that is, administrative law.

Section 14.2 briefly explains why the first research question about the connection between populism, restrictive migration laws and democratic decay leads to the question about the legal infrastructure underpinning populist restrictive migration laws. The Section also identifies some basic features of restrictive migration policies which the legal infrastructure must cater for. To this end, it relies on the descriptions and analyses of the restrictive migration policies from the country studies in this volume.

Section 14.3 identifies the distinct features of general administrative laws or law-making, namely forward-looking, dynamic, and the capacity to categorize people. These features make it easier, compared to other branches of law, to translate restrictive migration discourses and policy objectives into law.

Section 14.4 explains how individual administrative acts grant authorities the discretion and legal legitimacy needed to implement the restrictive migration policies in ways not possible under criminal law.

Section 14.5 concludes on a pessimistic note. It critically examines the current instances of legal resilience against restrictive migration policies. It finds that the three types of legal resilience, namely judicial interventions by the ECtHR, CJEU and constitutional courts, signal and legitimize the lack of legal resilience within administrative law.

14.2 Populism, Restrictive Migration Policies and Democratic Decay

The contributions in this volume examine the possible connections between populism, restrictive migration policies and democratic decay. The picture that emerges from the country studies is not straightforward.Footnote ²

First, the country studies record restrictive migration policies and crumbling migrant rights.Footnote ³ Furthermore, a new wave of populist parties and movements has found access to the formal channels of state power. Either because the parties obtained an absolute or coalition majority in parliament,Footnote ⁴ or because conventional parties co-opt the popular discourse and policy stances.Footnote ⁵ Anti-migration discourse is a crucial part of the populist political agenda and one of their main electoral selling points. Arguably, there is thus a close connection between populism and restrictive migration policies. By the same token, the country studies also indicate that many restrictive migration policies predate the new populist parties and movements (e.g., Austria, Italy). It suggests that conventional parties were already populist avant la lettre or that the anti-migration discourse is simply not unique to populism. This raises a question about the general legal infrastructure that makes it possible to enact and implement restrictive migration laws, regardless of who is in power: populists or conventional parties.

Second, the country studies, in line with the burgeoning literature on rule of law and democratic decay in Europe, show a clear link between populism and an authoritarian rule of law.Footnote ⁶ Crucial in this respect is the breakdown of constitutional safeguards, especially judicial independence of the highest courts.Footnote ⁷ The populist strategy is clear. If the constitutional constraints are lifted, the populists can have it their way: retain power and marginalize political opponents and social opposition. Again, this raises questions about the nature of the basic legal infrastructure that can continue to operate its daily business without constitutional constraints. To put it differently, what kind of law is able to maintain its legal character while the constitution is breaking down? Why do we speak of a constitutional breakdown but not of the breakdown of administrative law? The answer might be that normal administrative law is already quite well-suited to make populist, anti-migrant or authoritarian agendas legally possible.

Third, though anti-migration policies and laws may amount to instances of democratic decay and an authoritarian rule of law, the reverse is not always the case: democratic decay is not tantamount to anti-migrant policies. Empirical studies have shown that authoritarian regimes may in fact adopt policies that are relatively favourable to immigration.Footnote ⁸ Yet those policies do not grant legally enforceable rights to migrants. So probably if there is a connection between authoritarianism and anti-migrant policies, it is not so much that authoritarians necessarily oppose migrants, but they do oppose rights.

Hence, the connection between populism, restrictive migration laws and democratic decay is not clear-cut. But precisely because restrictive migration laws cannot be traced back to populism and democratic decay, a fundamental legal question emerges: what is the legal infrastructure then that makes anti-migration policies possible in the first place, irrespective of populism and democratic decay? Or what is the legal infrastructure that allows populists to turn anti-migrant discourses into law? My answer is administrative law.

Administrative law has particularly distinctive features that allow authorities to do things that would not be possible under normal criminal and civil law. Since migration policies are largely matters of administrative law, politicians and authorities can benefit from these distinct features when legislating and executing immigration policies. While migration policies have become a matter of administrative law for historical reasons, there are also practical reasons for why administrative law is distinctively well suited to enact and implement immigration policies.Footnote ⁹ When enacting immigration laws, policy makers generally find that administrative law gives them the freedom to incorporate highly politicized discourses. And when executing immigration policies, the administration is granted significant de facto and legally sanctioned freedom to act. By the same token, this freedom to make and execute immigration law is governed by law, thus granting authorities a legality bonus.

In the sections below, I will discuss the distinctive features of general administrative laws and of individual administrative acts. But first, I will briefly return to the country studies in this volume. For if we want to see how administrative law distinctively caters for – populist – restrictive immigration policies, we need to know what the basic ingredients of anti-migration policies are. In other words, what do populist policymakers need for their restrictive migration laws? Or if we want to ask the question from the perspective of administrative law: what do populists want from administrative law?

The first ingredient of anti-migration policies is an anti-migrant discourse. Populists need to have their anti-migrant language and logic incorporated in legal instruments. Thus statutes should be capable of integrating the language whereby people can be categorized in terms of ‘us’ and ‘them’.Footnote ¹⁰ The law must be able to adopt language whereby certain migrants can be considered wanted and others unwanted.Footnote ¹¹ The challenge of populism, however, is that the categorization is not so much based on actual behaviour, but on expected behaviour and ascribed properties of the particular groups (ethnicity, country of origin, etc.). For example, the legal instruments used to enact and implement anti-migration policies must be able to depict unwanted migrants as dangerous or criminal, but without the normal legal provisions and mechanisms of criminal law.Footnote ¹² Normal criminal law actually defies the populist logic of making quasi existential distinctions between groups of people (‘us’ versus ‘them’; ‘good citizens’ vs ‘dangerous people’). Normal criminal law requires a clear statutory definition of a particular behaviour that is prohibited, as opposed to merely ascriptive qualities (e.g., race, nationality, religion, gender, etc.). Next, criminal law investigations and criminal prosecution pertain to alleged criminal behaviour of individuals, as opposed to groups. Furthermore, the alleged criminal behaviour must be established in fact by an independent court, as opposed to mere speculations and allegations. Finally, when convicted the person does not become a ‘criminal’. In fact the notion ‘criminal’ to designate a person who has committed a crime does not exist in criminal law. One is a suspect, defendant, perpetrator, or convicted person. So strictly speaking it is conceptually impossible to use criminal law to depict migrants as criminals.

Second, as populists are typically on a permanent election campaign,Footnote ¹³ there is a constant need to adapt policies to the new discourses and policy objectives. In other words, populists need a kind of law that they can change by a stroke of the pen.Footnote ¹⁴ Of course, formally speaking legislation is the primary source of law in all branches of law, except for international, human rights and constitutional law. And in theory this allows for rapid and instant changes in the law. But in civil and even criminal law the main substantive legal norms change slowly over time and are often the product of a long interpretative practice, inside and outside the courts.

Third, restrictive migration policies are largely about making life difficult for unwanted migrants. It means one needs a kind of law that can govern the life of unwanted migrants as much as possible. This may mean actively intervening through coercive actions.Footnote ¹⁵ But it may also include non-coercive measures or simple passivity, for example, denying social, economic, educational assistance and limiting the practical possibilities to apply for permits and benefits.Footnote ¹⁶ The measures may target migrants directly, or those that are helping them, for example, NGO’s or captains of vessels at the High Seas.Footnote ¹⁷ Again, non-coercive measures can be extremely effective in this respect; for instance, by denying subsidies or checking the transparency of funding (Poland, Hungary). Another useful tool is the capacity to take measures that are unlawful but nevertheless have immediate effect and which, until annulled by a court, can make life really difficult for a migrant (e.g., unlawful denial of a visa, see below Section 14.4.2).

Fourth, in order to implement restrictive migration laws, the authorities need sufficient freedom to act. This is especially relevant for populists. Though they may incorporate their populist discourse into the recitals of legislation and general objectives, it is more difficult to introduce outright racial, religious and ethnic considerations into actual legally binding criteria, especially when it comes to asylum law. What is needed is a mechanism whereby the migration authorities have discretion to determine whether the legal and especially factual conditions for a migration decision are satisfied. In other words, there must be a point up to which the migration authorities need not further justify and substantiate their decisions. This space of discretion should be sufficiently large to cover up for the populist motives underlying the migration decisions. Of course, such a mechanism runs the risk of being perceived as mere prerogative and arbitrary power. Thus, the mechanism must also provide for legal legitimacy. A proven tactic for legal legitimacy is technical expertise. Accordingly, the migration authorities are not presented as political agents but are technical experts in the field of migration. They deserve to have discretion because they are politically neutral experts. Another source of legal legitimacy is to ensure – at least on paper – that migration decisions are susceptible to review by an independent court. Yet, the downside is that genuine judicial review may significantly limit the discretion of migration authorities. Hence populists have an interest in a legal infrastructure that has enough judicial review to grant legal legitimacy but that in practice is sufficiently limited to maintain wide discretion. Populists need a legal infrastructure that provides for full access to the courts on paper, but that also allows authorities to de facto limit access to the courts. A case in point is limiting or abolishing independent legal aid for migrants. Another way for the legal infrastructure to grant both legal legitimacy and discretion is to have courts that have – or think they have – only a limited mandate to review individual migration decisions.

So in order to enact and implement their anti-migration policies populists need at least four things from the law. First, they need a kind of law that can easily incorporate ‘hyper’ political discourses and objectives which are often new or alien to traditional legal concepts. Second, they need a type of law that is accustomed to constant and immediate change. Populists must be able to constantly adapt the law to what is politically topical as they are on a permanent electoral campaign. Third, they need a form of law that is capable of categorizing groups of people on the basis of ascriptive qualities rather than individual behaviour. Finally, they need a legal infrastructure that gives the administration the freedom to implement populist policies but while maintaining a veneer of legal legitimacy.

In the next sections I will show how administrative law caters for these things. For analytical purposes it is helpful to distinguish between two levels of administrative law: general administrative laws and individual administrative acts. For the purposes of this chapter, I define general administrative laws as the general legal norms issued by Parliament, government and administrative agencies that are governed by the general rules of administrative law, as opposed to criminal and civil law. For example, an Alien Act enacted by a national legislator is a general administrative law; royal and ministerial decrees further implementing an Alien Act also constitute general administrative laws. General rules, regulations and guidelines issued by Immigration Authorities constitute general administrative laws in my definition. The individual administrative decisions are legally binding acts issued by the administration and directed at individuals, for example, granting or denying asylum, granting or refusing a building permit, withdrawing social aid. The distinction between general administrative laws and individual administrative decisions is helpful because they cater for different ‘populist needs’. The characteristics of individual administrative acts are well suited to enable populists to enact populist policies. The characteristics of administrative law are well suited to enable populists to implement their policies.

14.3 General Administrative Laws: Forward-Looking, Dynamic and Capable of Categorizing People

General administrative laws have three qualities that are particularly well suited to cater for anti-migration policies. Administrative law-making is largely forward-looking, dynamic and has the capacity to categorize people. General administrative laws are forward-looking in the sense that they are about improving the existing social, economic, cultural, environmental, and public ordering of things and people, rather than simply maintaining and restoring the existing order.Footnote ¹⁸

Certainly civil laws also reflect political preferences and choices. But the objectives are much more general and indeterminate (e.g., individual autonomy, efficient markets). They are not forward-looking in the sense of seeking to improve and change the existing order. Rather civil laws are supposed to be an expression of or a medium for the existing order. For the civil laws (e.g., the Civil Code) do not tell people how to behave in precise and concrete ways: the precise and concrete content of civil laws are largely determined by individual consent and custom, and not by particular political objectives.Footnote ¹⁹ It also means that courts, not politicians, play a crucial role in specifying what behaviour is required or permitted. Often when legislators enact civil laws they explicitly indicate that the content of particular legal standards needs to be further developed by the courts. It implies that the legislator welcomes legal conflicts as they may result in case law. This is typically not the case for general administrative laws. These seek to immediately impact and improve the existing order. The administrative lawmakers (Parliament, national government, local administration or agencies) often issue highly detailed standards that – at least on paper – should allow the implementing authorities and citizens to immediately adapt their behaviour. In this respect general administrative laws rather seek to avoid these problems being brought to the courts.

Similarly, normal criminal laws (as opposed to the criminal provisions in administrative laws) are not about improving or changing the existing order but about restoring the order. Most normal criminal laws only tell you what not to do but do not tell people how to behave in order to improve the economy, environment, cultural life, etc. Normal criminal laws do not give concrete and detailed norms of behaviour in order to achieve a particular political objective.

The direct consequence is that while in civil and criminal law the content of particular substantive legal norms is determined by legal practice inside and outside the courtroom, in administrative law the lawmakers take the lead. This also explains the highly dynamic nature of administrative law-making. The production of new general administrative laws is prolific, especially compared to normal civil and criminal laws. But also the number of changes made to laws in a single functional field is impressive. Rather than having legal practice fill out the content of substantive norms, lawmakers constantly adapt the content of administrative law to meet new practical, bureaucratic or purely political needs.

The forward-looking and dynamic nature of general administrative laws makes administrative law the field of law that is most responsive to political ambitions and political discourse. I believe this basic feature of administrative law-making explains why administrative law constitutes an ideal legal infrastructure for populist anti-migration discourse. Administrative law is the field of law where law-making easily follows the particular political agenda of the lawmakers and does not feel the need for any long-term embedding in actual legal practice inside or outside the courts. If existing migration policy discourse and objectives are felt too soft, they can be replaced easily by new general administrative laws with a stricter discourse and policy objectives. To be clear, this is not specific to or distinctive for populist anti-migrant discourse. General administrative laws might just as well incorporate discourses that are progressive, multicultural and oriented at social equality. The point here is to show that, of all branches of law, administrative law is most capable of immediately translating political platforms into law.

The forward-looking nature of general administrative laws also means that administrative law is largely permissive and instructive. Contrary to criminal laws that are largely prohibitive, administrative laws seek to promote particular activities because they allegedly will improve the social, economic, environmental and cultural order, or even create a new one. A quintessential mechanism in this respect is the system of permits and licenses. In effect, in migration law, permits to enter and stay in the territory constitute the central legal mechanism. A permit system offers legal certainty to migrants who have a permit because they know ex ante that their entry and stay are lawful provided they comply with the conditions of the permit. This is typically not possible under the system of prohibitive criminal law rules that does not offer citizens the possibility to seek clearance rulings with the public prosecutor. But it also means that general administrative laws have the potential to intervene actively in many aspects of social life and impose particular types of behaviour. Furthermore, the system of permits also implies that migrants must pro-actively seek contact with the administration and apply for a permit. The migration authorities can then make life difficult for the applicant by stalling the procedure or refusing the permit. This is not possible under criminal law. If authorities want to make life difficult for migrants through criminal law they must actively start legal proceedings against them.Footnote ²⁰

Closely related to the forward-looking and dynamic nature of general administrative laws and the ambition to improve or even change the existing social and economic order is the welfare state. Certainly, administrative law does not necessarily entail a fully-fledged welfare state, but a welfare state does require a well-developed administrative law. A large part of the welfare services is only accessible through the system of social benefits. It means that individuals have to pro-actively contact the administration and apply for social benefits. Here again the administration can make life difficult for individuals by stalling the procedure or denying the benefit. In most European countries today, social and economic structures are such that it is difficult for a person without a regular paid job to live a decent life without the minimal social and educational benefits provided for by the welfare state. This is even more the case for migrants. If so, then the welfare state and administrative law are both a means to help migrants and an instrument to make their lives extremely difficult. Furthermore, since the benefits are largely governed by administrative law, they do not have the same legal status as normal enforceable civil subjective rights. In other words, the distribution of the benefits is more a matter of policy than rights.

Another crucial feature of general administrative laws is the capacity to categorize people on the basis of ascribed qualities rather than their actual behaviour and will. Not only for policing people but also for benign measures, especially providing public services in the context of a comprehensive welfare state, it is essential to divide people in categories that are perceived relevant for the administration (age, gender, ethnicity, income, type of profession, medical condition, postal code, religion, domicile, number of children, etc.).Footnote ²¹ Furthermore, it is necessary that the categories are sufficiently formal in order to be incorporated in the bureaucratic apparatus. Finally, the authorities must be able to adapt the categories swiftly for reasons of either administrative or political expediency. The ability to categorize people on the basis of ascribed qualities makes it possible to immediately target people and distinguish between people without the need to establish their actual behaviour. It is therefore a powerful instrument to include and exclude people. The inclusion and exclusion can be used for benign social and emancipatory purposes (e.g., comprehensive welfare state). But it can also be used for purposes of enacting restrictive migration policies, making it possible to distinguish between wanted and unwanted migrants on the basis of ascriptive qualities. In the field of labour migration it is possible to distinguish between wanted and unwanted migrants on the basis of seemingly neutral economic selection criteria such as education, training, work experience and language skills, which can operate as a proxy for more suspect criteria such as gender, ethnicity and religion. In the area of humanitarian visas it is possible to openly select on the basis of such suspect criteria. For example, a populist government may pro-actively decide to grant humanitarian visas to a particular group of Christian migrants. Since the humanitarian visas are a matter of favour and not right, the categorization will not be considered discriminatory. This form of categorization is even possible when a populist government pro-actively grants asylum to migrants located in an UNHCR refugee camp. This will not be considered a form of discrimination provided that the government leaves open, at least on paper, the possibility for other migrants to seek asylum.

Of all areas of law, administrative law is the best suited to categorize legal subjects in function of ascribed qualities. Criminal law and civil law look mainly at the actual behaviour and will of legal subjects. A case in point is the ruling by Italian constitutional court of 2010 annulling a Decree that made irregular stay an aggravating circumstance for any offence committed by a foreigner.Footnote ²² Of course, in civil law the ascribed properties of the person (e.g., gender, age, descent) are crucial in family law, the law of persons and estate law. But the categories have remained quasi the same over centuries and in practice cannot be changed swiftly. In administrative law legislative and regulatory change at both parliamentary and executive level is extremely fast and prolific compared to criminal and civil law.

14.4 Individual Administrative Acts: Discretion and Legality Bonus

As we saw in the previous section, general administrative laws are well-suited to accommodate the highly political logic of populist anti-migration discourses and policy objectives. General administrative laws can easily and quickly translate political discourses and policy objectives because they are predominantly forward-looking and dynamic. General administrative laws can accommodate anti-migration discourses and objectives because they have the capacity to continuously make new categorizations of people. General administrative laws are thus a crucial element of the legal infrastructure that makes anti-migration policies possible.

Arguably, general administrative laws are often a sufficient tool for politicians. In many cases it may suffice for politicians to show they adopted laws that directly reflect a particular popular political position. The actual implementation, let alone effectiveness, of the laws is irrelevant. This seems particularly the case when it comes to migration policy. Across the political spectrum lawmakers have shown no interest in either the real empirical causes and modes of migration or the empirical effects of migration policies.Footnote ²³ It suggests that the real effectiveness of migration policies and laws is often irrelevant from a political and electoral perspective. Probably for the majority of voters (and thus politicians) what really matters is their perception of migration and migration policies, not the actual effects. Still, general administrative laws do get implemented. Even if the overall effectiveness of migration policies is doubtful, sometimes migration authorities must take immediate and concrete action either to address real incidents or to appear tough in the media. Migration policies may not be effective, but they do have consequences.

If general administrative laws are the instrument to enact populist migration policies, then the individual administrative act is the instrument to implement the policies. The individual administrative act is another crucial element of the legal infrastructure that makes populist anti-migration policies legally possible. Elsewhere, I identified and analyzed the authoritarian elements of administrative law in European jurisdictions. My analysis focused on the typical features of the individual administrative act: i) presumption of legality and the privilege of execution; ii) policy and factual discretion for the administration; iii) judicial deference to policy and factual discretion.Footnote ²⁴

Presumption of legality means that the administrative act is deemed to be lawful; it has immediate legal effect and must be complied with accordingly. Only when the administration withdraws the administrative act or a court annuls it, does it lose its legal effect and validity. Furthermore, the administrative act can be executed, even by force, without the need to seek prior approval by an independent court that makes a judgment on the legal and factual merits of the administrative act. This is the so-called privilege of execution. Even if individual administrative decisions executing a migration policy can be challenged before a court, it is important to note that the decision has immediate effect, producing concrete consequences in the tangible or legal reality. In other words, the administration can simply establish facts on the ground, while awaiting a legal challenge before a court. Importantly, because of the presumption of legality and the privilege of execution, appeals against most types of administrative decisions do not have suspensive effect. Though migration policies may not be effective in terms of stated policy objectives, they are pretty successful in making life difficult for the individuals concerned. This is clearly the picture emerging from the contributions in this volume. The crux is that administrative acts put the ball fully in the court of the individual affected by the administrative decision. Furthermore, depending on the type of act, the harm may be already inflicted and later annulment by a court would simply come too late.

In fact, to the extent that anti-migrant policies aim to make life difficult for unwanted migrants and those helping them, the presumption of legality and privilege of execution are enough for the administration to get the job done. As long as the administration creates legal consequences or establishes facts on the ground without seeking prior approval by courts, it can make life difficult for unwanted migrants. In this respect, it should be noted that in many cases the administration does not even need to execute or enforce the decision since the presumption of legality suffices. For example, the refusal of a permit or social benefit to a migrant becomes immediately effective; the refusal does not require any further execution. The absence of the permit or a social benefit can already put a migrant in extremely precarious conditions. These may directly affect the mental, physical or financial resources to challenge the refusal before the courts. Even if the migrant were to obtain a favourable judgment from a court, much of the harm will already be done. And even if the migrant can effectively benefit from a favourable judgment, the administration was in any event successful in making life extremely difficult for the migrant while the court case was pending. Thus the presumption of legality and the privilege of execution are crucial features of the administrative act and give the administration an advantage over migrants, which it does not have under normal civil and criminal law.

Discretion is probably the most well-known and discussed feature of administrative law. It entails that the administration has the liberty to choose between reasonable policy preferences and options (policy discretion) or reasonable ways to evaluate and establish the facts (factual discretion). The conventional view has it that from discretion necessarily follows judicial deference. Judicial deference means that when reviewing an administrative decision, administrative courts do not make their own judgments of the merits of the case but rely on the decision of the administration. Particularly relevant in daily practice is judicial deference to fact-finding by the administration.Footnote ²⁵ This means that the court does not establish the facts of the case but ‘only’ checks whether the fact-finding by the administration was reasonable. In other words, the court only establishes the reasonableness of the facts but not their truth.Footnote ²⁶ Again, this is another feature of administrative law that gives the administration an advantage over citizens, which it does not have under normal criminal law.

The crux of the features of administrative acts is that they confer on authorities sufficient freedom and leeway to take measures that would not be possible under civil and criminal law. Through individual administrative acts, authorities can infringe the rights of people and harm their social and economic interests in ways that would not be possible under normal civil and criminal law. But that does not mean that administrative acts are taken in a legal void; they must be based on (statutory) law and are susceptible to judicial review. These features of the individual administrative act ensure that the actions by the authorities retain a lawlike character granting the authorities what I have called a legality bonus. It is the combination of the freedom to act beyond civil and criminal law and the legality bonus that makes administrative law such a convenient legal infrastructure for anti-migrant measures. As was discussed in Section 14.2 populists may loathe and despise liberal democracy and the rule of law, they still need the benefits of legal legitimacy.

What makes administrative law so convenient is the fact that on paper legal protection is available to migrants but in practice it remains extremely limited. Indeed, the contributions in this volume contain many references to limited judicial protection for migrants. For reasons of space I will concentrate on three topics that are discussed in some of the contributions: alien detention, humanitarian visas and denial of free legal aid for inadmissibility cases.

14.5 Resilience

The first research question posed by the editors of this volume pertained to the connection between populism, restrictive migration laws and democratic decay. I turned this question around and asked what legal infrastructure makes it legally possible to enact and implement the populist restrictive migration laws that break down the rule of law. My answer is administrative law. This answer largely informs my response to the second research question: what are the possibilities of legal resilience against populist restrictive migration laws? Little, is the short answer. If we do not address some structural features of administrative law from within, there is little legal resilience against restrictive migration policies.

The country studies report seemingly promising instances where restrictive migration laws and individual decisions have been stalled, halted or annulled in the name of the law. Three types of law have been successful in this respect: ECHR, EU and constitutional law. Of course, in some countries constitutional law cannot do the job because the constitutional courts are packed by the populists. Also, the impact of ECtHR and CJEU decisions on unwilling populists ruling in states that are in democratic decay is far from straightforward. Still, the courts and lawyers did what they were supposed to be doing: challenging unlawful state practices.

The question is how to understand these instances of resilience. Is it the beginning of a practice whereby the unlawful features of migration policies will be structurally scrutinized by the ECtHR, CJEU and constitutional courts? Or does it actually reinforce and legitimize the current legal infrastructure by only addressing the migration laws and decisions that actually make it to court and that have the most sloppy legal and factual justifications? I am inclined to adopt the pessimistic position.

When jurists predominantly rely on the three types of law (ECHR, EU and constitutional law) to challenge restrictive migration policies they already concede too much. The reason is that they overlook the structural features of the basic legal infrastructure, the administrative law, that underpin migration law. Let me explain my point with a counter example from criminal law. The country study on Italy contains a great example of legal resilience: the case where the Court of Cassation declares illegal the criminal arrest of a Commander who resisted a public official executing a ban to enter an Italian port.Footnote ³² The alleged criminal offence committed by the Commander was resisting a public official. Under administrative law, the order by an official is presumed to be lawful, must be obeyed immediately and can be executed by force. However, instead of the administrative law route, the authorities pursued the route of criminal law since they wanted to establish that the Commander committed a criminal offence. However, criminal liability for resisting a public official vanishes, if the administrative order issued by the official conflicts with another legal obligation. The duty to rescue at sea is such a legal obligation. It then follows that the criminal law logic puts aside the administrative law logic of presumption of legality and privilege of execution, at least for the purposes of the criminal law case.Footnote ³³ The Court of Cassation simply made use of the legal resilience within criminal law. It is a basic feature of criminal law that a conflicting legal obligation may remove criminal liability for violating another criminal provision. This is not a typical human rights law principle but a basic notion of criminal law practice itself. In fact, probably any criminal lawyer regardless of his or her political preferences could tell you why upholding the criminal liability of the Commander is problematic from a criminal law perspective.

Of course, the resilience potential of criminal law is extremely limited when it comes to migration policy. This is not a defect of criminal law, but simply because most migration policies are not matters of criminal law. In fact, authorities – especially those implementing and executing migration policies – have a clear incentive to circumvent criminal law.Footnote ³⁴

The point of the criminal law example is to show the centrality of legal resilience from within the legal infrastructure. Criminal law clearly has such resilience. But it also means that authorities will only use criminal law to a very limited extent when it comes to migration policies. The dominant legal infrastructure remains administrative law. Ironically, the three types of law (i.e., ECHR, EU and constitutional law), which according to the country studies display the most legal resilience, signal two things. First, administrative law lacks the legal resources of its own to resist restrictive migration policies. Second, the rulings of the ECtHR, CJEU and constitutional courts legitimize this state of affairs. In particular, in the case where the ECtHR, CJEU or the constitutional courts intervened, they found nothing legally wrong with the legal infrastructure underpinning the restrictive migration policies. As a result, there is no legal incentive for administrative courts, practicing jurists and academics to re-examine and challenge the basic features of administrative law.

As a consequence, I cannot help but conclude on a pessimistic note. There are no signs that the legal profession will take up the task to challenge the legal infrastructure of immigration policies from within. So far, the basic features of administrative law in most European jurisdictions have remained unchallenged. Probably the clearest illustration is the widespread practice of alien detention. To date the legal profession has not come up with legal arguments from within administrative law to the effect that the institution of alien detention in itself as we know it, may be unlawful. At best, the legal profession can come up with legal arguments to make the conditions of detention more humane.Footnote ³⁵ Domestic administrative law in cooperation with the ECtHR produced a sophisticated mechanism enabling long term detention of unwanted persons without a criminal trial while benefiting from an uncontested legality bonus. Though this mechanism was developed under liberal democracies and predates the new wave of populist governments, it constitutes a perfect tool for any authoritarian regime, populist or otherwise.