Of General Principles and Trojan Horses — Procedural Due Process in Immigration Proceedings under EU Law

2010 ◽  
Vol 11 (9) ◽  
pp. 1006-1024 ◽  
Author(s):  
Jürgen Bast
Keyword(s):  
Decision Making ◽  
Legal Status ◽  
Due Process ◽  
Legal Order ◽  
Fundamental Rights ◽  
Eu Law ◽  
Procedural Due Process ◽  
Scope Of Application ◽  
Legal Position

AbstractThe present paper concerns procedural guarantees in immigration proceedings, thus addressing the broader question of the role of the general principles of EU law in respect of administrative decision-making. The main assertion is that certain requirements of procedural due process are recognized in EU law as fundamental rights. They must therefore be observed by Member State authorities when decisions significantly affecting the legal position of a person are taken, provided that the decision is at least partly determined by EU law. The relevant immigration proceedings involve measures related to the termination of residence as well as decisions related to denial or loss of a particular legal status. In effect, the actual scope of application of the EU's administrative fundamental rights is determined by the actual scope of activity of the European legislator. The author concludes that even a relatively ‘shallow’ harmonization of laws can lead to a ‘deep’ reshaping of the domestic legal order, by becoming a Trojan Horse for fundamental rights heretofore alien to some national immigration regimes.

4. EU Law: Sources, Forms, and Law-Making

2021 ◽  
pp. 94-140
Author(s):  
Nigel Foster
Keyword(s):  
Decision Making ◽  
Legal System ◽  
Legal Order ◽  
Fundamental Rights ◽  
Soft Law ◽  
Eu Law ◽  
The Rich ◽  
Alternative Decision ◽  
Law Making ◽  
The Eu

This chapter takes an overall view of the EU legal order and examines its legal system, including the elements which are either different from or similar to member states’ legal systems. It begins by taking an overall view of the EU legal order, the different forms of EU law, and the various sources of law contributing to this legal order, in particular now the rich source of human and fundamental rights in the EU legal order. It considers the non-strictly legally binding rules known as ‘soft law’. It also looks at the ways or processes by which the binding laws are made and reviews alternative decision-making and law-making developments.

Human Rights in the EU: Rethinking the Role of the European Convention on Human Rights after Lisbon

2011 ◽  
Vol 7 (1) ◽  
pp. 64-95 ◽  
Author(s):  
Wolfgang Weiß
Keyword(s):  
Human Rights ◽  
Direct Effect ◽  
Legal Order ◽  
Fundamental Rights ◽  
European Convention ◽  
Eu Law ◽  
Eu Member States ◽  
Loss Of Autonomy ◽  
The Eu

Treaty of Lisbon – Fundamental Rights Charter – European Convention on Human Rights – Partial incorporation of Convention in Charter – Incorporation of Charter into EU law with Lisbon – Questions of loss of autonomy for the EU legal order – Gain in direct effect of Convention in EU member states

4. EU Law: Sources, Forms, and Law-making

2017 ◽  
Author(s):  
Nigel Foster
Keyword(s):  
Decision Making ◽  
Legal System ◽  
Legal Order ◽  
Fundamental Rights ◽  
Soft Law ◽  
Eu Law ◽  
The Rich ◽  
Alternative Decision ◽  
Law Making ◽  
The Eu

This chapter examines the EU’s legal system. It begins by taking an overall view of the EU legal order, the different forms of EU law, and the various sources of law contributing to this legal order, in particular now the rich source of human and fundamental rights in the EU legal order. It considers the non-strictly legally binding rules known as ‘soft law’. It also looks at the ways or processes by which the binding laws are made and reviews alternative decision-making and law-making developments.

4. EU Law: Sources, Forms, and Law-Making

2019 ◽  
pp. 94-139
Author(s):  
Nigel Foster
Keyword(s):  
Decision Making ◽  
Legal System ◽  
Legal Order ◽  
Fundamental Rights ◽  
Soft Law ◽  
Eu Law ◽  
The Rich ◽  
Alternative Decision ◽  
Law Making ◽  
The Eu

This chapter examines the EU’s legal system. It begins by taking an overall view of the EU legal order, the different forms of EU law, and the various sources of law contributing to this legal order, in particular now the rich source of human and fundamental rights in the EU legal order. It considers the non-strictly legally binding rules known as ‘soft law’. It also looks at the ways or processes by which the binding laws are made and reviews alternative decision-making and law-making developments.

EU Non-Refoulement: (The Irrelevance of) Territoriality and Pre-Border Controls

2017 ◽  
Author(s):  
Violeta Moreno-Lax
Keyword(s):  
International Human Rights Law ◽  
Eu Law ◽  
Human Rights Law ◽  
Refugee Law ◽  
Functional Understanding ◽  
Scope Of Application ◽  
International Refugee Law ◽  
Border Controls ◽  
The Eu

This chapter identifies the content and scope of application of the EU prohibition of refoulement. Following the ‘cumulative standards’ approach, the analysis incorporates developments in international human rights law (IHRL) and international refugee law (IRL). Taking account of the prominent role of the ECHR and the Refugee Convention (CSR51) as sources of Article 19 CFR, these are the two main instruments taken in consideration. The scope of application of Articles 33 CSR51 and 3 ECHR will be identified in turns. Autonomous requirements of EU law will be determined by reference to the asylum acquis as interpreted by the CJEU. The main focus will be on the establishment of the territorial reach of EU non-refoulement. The idea that it may be territorially confined will be rejected. Drawing on the ‘Fransson paradigm’, a ‘functional’ understanding of the ‘implementation of EU law’ standard under Article 51 CFR will be put forward, as the decisive factor to determine applicability of Charter provisions. The implications of non-refoulement for the different measures of extraterritorial control considered in Part I will be delineated at the end.

Introduction

2017 ◽  
Author(s):  
Violeta Moreno-Lax
Keyword(s):  
Global Scale ◽  
Fundamental Rights ◽  
Eu Law ◽  
Migration Management ◽  
Charter Of Fundamental Rights ◽  
Scope Of Application ◽  
The Subject ◽  
Integrated Interpretation ◽  
Research Questions ◽  
Interpretation Model

This chapter presents the subject matter under scrutiny and provides a historical account of the development of extraterritorial strategies of migration management in Europe, coinciding with parallel changes in refugee movements and the composition of migratory flows on the global scale. The objective and research questions the study seeks to address are also introduced, together with a description of the methodology underpinning the research. In particular, the ‘cumulative standards’ or ‘integrated interpretation’ model employed to construe EU Charter of Fundamental Rights standards is canvassed. The concept of ‘jurisdiction’ and the alternative ‘Fransson paradigm’ applicable to interpret the scope of application of EU law is also briefly defined. The structure of the book is outlined at the end, providing an overview of the different chapters and their interrelation.

scholarly journals A tale of two citizens: The Brey-Dano proportionality gap in UK courts and tribunals

2021 ◽  
pp. 138826272110049
Author(s):  
Victoria E. Hooton
Keyword(s):  
Decision Making ◽  
National Level ◽  
Case Law ◽  
Eu Law ◽  
The Law

The role of proportionality and individual assessments in EU residency and welfare access cases has changed significantly over the course of the last decade. This article demonstrates how a search for certainty and efficiency in this area of EU law has created greater uncertainty, more legal hurdles for citizens, and less consistency in decision-making at the national level. UK case law illustrates the difficulty faced by national authorities when interpreting and applying the rules relating to welfare access and proportionality. Ultimately, the law lacks the consistency and transparency that recent CJEU case law seeks to obtain, raising the question of whether the shift from the Court's previous, more flexible, case-by-case approach was desirable after all.

scholarly journals The Europeanisation of Spanish Administrative Law through the Principle of Legitimate Expectations

2020 ◽  
Vol 13 (2) ◽  
pp. 55-86
Author(s):  
Luis Arroyo Jiménez ◽  
Gabriel Doménech Pascual
Keyword(s):  
Decision Making ◽  
General Principle ◽  
Legal Status ◽  
Case Law ◽  
Administrative Law ◽  
Status Quo ◽  
Eu Law ◽  
National Legislation ◽  
Legitimate Expectations ◽  
The Eu

This article describes the Europeanisation of Spanish administrative law as a result of the influence of the EU law general principle of legitimate expectations. It examines, firstly, whether the formal incorporation of the principle of legitimate expectations into national legislation and case law has modified the substance of the latter, and if so, secondly, whether this has led to a weaker or a more robust protection of the legal status quo. To carry out that examination, the article considers the influence of the principle of legitimate expectations in two different areas: in individual administrative decision-making, and in legislative and administrative rulemaking. Our conclusion is that the Europeanisation of Spanish administrative law through the principle of legitimate expectations has been variable and ambiguous.

The Legal Status of Decisions by Human Rights Treaty Bodies

2020 ◽  
pp. 129-158
Author(s):  
Leonardo Borlini ◽  
Luigi Crema
Keyword(s):  
Human Rights ◽  
Legal Status ◽  
Legal Order ◽  
Legal Scholarship ◽  
National Courts ◽  
Ordinary Meaning ◽  
Domestic Courts ◽  
Treaty Monitoring ◽  
International Legal Order ◽  
Legal Position

Academic analysis of pronouncements of human rights treaty monitoring bodies has tended to focus on their contribution to the promotion of human rights in domestic jurisdictions, particularly to convey the desire of scholars to see more use of these pronouncements by domestic courts. Comparatively little attention has been paid to the issue of their legal status in light of the supervisory function of human rights monitoring bodies. This chapter starts with a thorough analysis of a few recent cases by national courts, which commented on the legal value of the work of these bodies. The chapter then challenges two recurring arguments in the legal scholarship: their assimilation to judicial bodies, and the existence of a procedural obligation on states to consider their views. Next, it focuses on the interpretive weight of the pronouncements of these treaty bodies in international law, and, accordingly, in national jurisdictions. The chapter argues that the alleged existence of a general procedural obligation on states to consider the pronouncements of human rights treaty monitoring bodies is controversial, and that their work does not have a specific, or privileged, legal position in defining the ordinary meaning of a treaty. The conclusions point out that supervisory bodies have a specific and important role in the international legal order, different from that of courts, which bears preserving.

scholarly journals What constitutes evidence of poor prison conditions after Aranyosi and Căldăraru? Examining the role of inspection and monitoring bodies in European Arrest Warrant decision-making

2019 ◽  
Vol 10 (3) ◽  
pp. 209-226
Author(s):  
Mary Rogan
Keyword(s):  
Decision Making ◽  
Fundamental Rights ◽  
Decision Making Process ◽  
Critical Question ◽  
High Stakes ◽  
Arrest Warrant ◽  
European Arrest Warrant

The case of Aranyosi and Căldăraru confirms that where prison conditions are so poor as to breach fundamental rights, the non-execution of an European Arrest Warrant is justified. Given the high stakes nature of such a decision, this article examines a critical question: What will be the possible sources of evidence which can and should be used in such an assessment? The article posits that prison inspection and monitoring bodies, which have the task of visiting prisons and reporting on them, with a view to the prevention of ill treatment, will take on an important role in this decision-making process. The article examines what this role might entail and the implications of the decision for prison inspection and monitoring bodies.

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