Migrants and the law : what European courts saying.
Date: 2022-08-02
Institutions: European University Institute
Subjects: Court of Justice of the European Union, EU law, asylum seeker, governance, human rights, immigration, imprisonment

Adjudicating Migrants' Rights: 
What Are European Courts Saying? 

Special Issue  
May 2022 

EDITORIAL 

Veronica Federico, Madalina Moraru and Paola Pannia, The Growing  
but Uneven Role of European Courts in (Im)migration Governance: 
A Comparative Perspective 

1 

ADJUDICATING MIGRANTS' RIGHTS: WHAT ARE EUROPEAN  
COURTS SAYING? 

Madalina Moraru, The European Court of Justice Shaping the Right 
to be Heard for Asylum Seekers, Returnees, and Visa Applicants: 
An Exercise in Judicial Diplomacy 

Louis Imbert, Endorsing Migration Policies in Constitutional Terms: 
The Case of the French Constitutional Council 

Danai Angeli and Dia Anagnostou, A Shortfall of Rights and Justice: 
Judicial Review of Immigration Detention in Greece 

Paola Pannia, Questioning the Frontiers of Rights: The Case Law of 
the Italian Constitutional Court on Non-European Union Citizens' 
Social Rights 

Monika Szulecka, The Undermined Role of (Domestic) Case Law in 
Shaping the Practice of Admitting Asylum Seekers in Poland 

21 

63 

97 

133 

171 

Special Issue edited by: 
Veronica Federico, Madalina Moraru and Paola Pannia 
  www.ejls.eui.eu    

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Editorial Board 

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Published 11 May 2022 
Catalogue no.: QM-AZ-22-001-EN-N 
ISSN: 1973-2937 

 
 
 
 
 
European Journal of Legal Studies 
Adjudicating Migrants' Rights: What Are European Courts Saying? 
Special Issue 
May 2022 

TABLE OF CONTENTS 

EDITORIAL 

Veronica Federico, Madalina Moraru and Paola Pannia 
The Growing but Uneven Role of European Courts in 
(Im)migration Governance: A Comparative Perspective 

ADJUDICATING MIGRANTS' RIGHTS:  
WHAT ARE EUROPEAN COURTS SAYING? 

Madalina Moraru 
The European Court of Justice Shaping the Right to be  
Heard for Asylum Seekers, Returnees, and Visa Applicants:  
An Exercise in Judicial Diplomacy 

Louis Imbert 
Endorsing Migration Policies in Constitutional Terms:  
The Case of the French Constitutional Council 

Danai Angeli and Dia Anagnostou 
A Shortfall of Rights and Justice: Judicial Review of 
Immigration Detention in Greece 

Paola Pannia 
Questioning the Frontiers of Rights: The Case Law of the  
Italian Constitutional Court on Non-European Union 
Citizens' Social Rights 

Monika Szulecka 
The Undermined Role of (Domestic) Case Law in Shaping 
the Practice of Admitting Asylum Seekers in Poland 

1 

21 

63 

 97 

 133 

171

 
 
 
 
 
 
 
 
 
EDITORIAL 

THE GROWING BUT UNEVEN ROLE OF EUROPEAN COURTS IN 
(IM)MIGRATION GOVERNANCE: A COMPARATIVE PERSPECTIVE 

Veronica Federico,* 

 Madalina Moraru† 

 and Paola Pannia‡ 

 §

"Tu lascerai ogne cosa diletta 
più caramente; e questo è quello strale 
che l'arco de lo essilio pria saetta 
Tu proverai sì come sa di sale 
lo pane altrui, e come è duro calle 
lo scendere e 'l salir per l'altrui scale." 1 

I. INTRODUCTION: ADJUDICATING IN TIMES OF CRISIS 

The  context  in  which  European  and  domestic  courts  adjudicate  migrants' 
rights has never been more complicated than it has been in recent years. A 
socio-political reality of sequential crises (economic, refugee, rule of law and 
Covid-19)2  has  empowered  the  executive  to  make  decisions  with  regard  to 
migration with minimal legislature and judicial supervision and launch 'open 

* 

† 

‡ 

Professor of Comparative Public Law, Law Faculty, University of Florence. 
Director, Centre for Migration Studies, Law Faculty, Masaryk University; Part-
time Assistant Professor on EU Law, Centre for Judicial Cooperation, European 
University Institute. 
Post-doctorate  Research  Fellow  in  Comparative  Public  Law,  Law  Faculty, 
University of Florence. 

§  We are grateful to the editorial team of the EJLS for their valuable cooperation 

1 

2 

and careful work throughout the publication process. 
'You shall leave everything you love most dearly: this is the arrow that the bow of 
exile shoots first. You are to know the bitter taste of others' bread, how salt it is, 
and know how hard a path it is for one who goes descending and ascending others' 
stairs'.  Dante  Alighieri,  The  Divine  Comedy  (first  published  1472,  Courtney 
Langdon (trs), Harvard University Press 1921) vol 3, canto 17, lines 55-60. 
Erik Jones, R Daniel Kelemen and Sophie Meunier, 'Failing Forward? Crises and 
Patterns  of  European  Integration'  (2021)  28  Journal  of  European  Public  Policy 
1519. 

EJLS Special Issue, May 2022, 1-20 

doi:10.2924/EJLS.2022.001 

 
 
 
 
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attacks on case law'.3 The ever-increasing number of persons in need of access 
to  asylum  is  likely  to  increase  even  further  over  the  next  decade.4 
Nevertheless, States have increasingly implemented deterrence policies (e.g. 
push-and  pullbacks,5  walls  and  fences,6  variegated  forms  of  detention,7  and 
exclusion from procedural and socio-economic rights),8 which have limited 
individuals'  access  to  asylum  proceedings  and  socio-economic  rights, 
violating  international  obligations  to  observe  the  principle  of  non-

3 

4 

5 

6 

7 

8 

M.A  and  others  v  Lithuania  App  no  59793/17  (ECtHR,  11  December  2018) 
Concurring  Opinion  of  Judge  Pinto  de  Albuquerque,  para  2;  Mikael  Rask 
Madsen,  Pola  Cebulak  and  Micha  Wiebusch,  'Backlash  against  International 
Courts: Explaining the Forms and Patterns of Resistance to International Courts' 
(2018) 14 International Journal of Law in Context 197. For more on governmental 
backlash  against  courts  as  part  of  the  rule  of  law  crisis  generally,  see  Monika 
Szulecka, 'The Undermined Role of (Domestic) Case Law in Shaping the Practice 
of Admitting Asylum Seekers in Poland' [2022] (special issue) European Journal 
of Legal Studies 171. 
More than 1% of the global population is forcibly displaced. UNHCR 'Statistical 
Yearbook:  2019  Edition'  (New  York  2019)  UN  Doc  ST/ESA/STAT/SER.S/38. 
On future predictions, see UNHCR, 'Displaced on the Frontlines of the Climate 
Emergency'  (ArcGIS  StoryMaps,  22  April  2021)  <https://storymaps.arcgis.com/ 
stories/065d18218b654c798ae9f360a626d903> accessed 21 March 2022. 
Madalina  Moraru,  'Generalised  Push-Back  Practices  in  Europe:  The  Right  to 
Seek  Asylum  Is  a  Fundamental  Right'  (2022)  1  Quaderns  IEE  154.  See  also 
Szulecka (n 3). 
Ibid. 
For examples, see Danai Angeli and Dia Anagnostou, 'A Shortfall of Rights and 
Justice:  Judicial  Review  of  Immigration  Detention  in  Greece'  [2022]  (special 
issue) European Journal of Legal Studies 97; Louis Imbert, 'Endorsing Migration 
Policies  in  Constitutional  Terms:  The  Case  of  the  French  Constitutional 
Council' [2022] (special issue) European Journal of Legal Studies 63. For a more 
general discussion, see Madalina Moraru and Linda Janku, 'Czech Litigation on 
Systematic Detention of Asylum Seekers: Ripple Effects across Europe' (2021) 23 
European Journal of Migration and Law 284. 
For examples, see Paola Pannia, 'Questioning the Frontiers of Rights: The Case 
Law of the Italian Constitutional Court on Non-European Union Citizens' Social 
Rights'  [2022]  (special  issue)  European  Journal  of  Legal  Studies  133;  Madalina 
Moraru,  'The  European  Court  of  Justice  Shaping  the  Right  to  Be  Heard  for 
Asylum  Seekers,  Returnees,  and  Visa  Applicants:  An  Exercise  in  Judicial 
Diplomacy' [2022] (special issue) European Journal of Legal Studies 21. 

 
 
 
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Editorial 

3 

refoulement and protect fundamental rights.9 Such barriers have resulted in 
increasing  casualties,  leading  to  an  unaddressed  humanitarian  crisis.10 
Moreover, we argue that these policies gradually erode the right to asylum, 
transforming it into a theoretical construct, accessible in practice to only the 
very  few  refugees  who  are  not  caught  by  these  containment  practices.11  As 
Alison Mountz has lamented, these tendencies may ultimately prove to be 
signs of 'the physical, ontological and political death of asylum itself'.12  

However,  the  EU's  recent  open  borders  policy  and  Member  States' 
expressions of solidarity towards Ukrainians fleeing the Russo-Ukrainian war 
represent a different narrative than the 'fortress Europe' approach taken in 
2015-16.13  The  EU's  reactions  to  these  two  refugee  crises  show  a  varied 
approach towards the enforcement of the right to asylum and migrants' rights 
depending on the specific geopolitical background of the refugee crisis and 
the entry rights enjoyed by the third-country nationals (especially in terms of 
visa  requirements)  prior  to  the  crisis.  While  the  open  borders  narrative 

9 

10 

11 

12 

13 

Daniel  Ghezelbash  and  Nikolas  Feith  Tan,  'The  End  of  the  Right  to  Seek 
Asylum?  COVID-19  and  the  Future  of  Refugee  Protection'  (2020)  32 
International Journal of Refugee Law 668; Iris Goldner Lang and Boldizsár Nagy, 
'External Border Control Techniques in the EU as a Challenge to the Principle of 
Non-Refoulement' [2021] European Constitutional Law Review 1.  
Julia Black, Maritime Migration to Europe: Focus on the Overseas Route to the 
Canary Islands. IOM 2021, Geneva and IOM Missing Migrants Project Data. 
See Madalina Moraru, 'The EU Fundamental Right to Asylum: In Search of Its 
Legal  Meaning  and  Effects'  in  Sara  Iglesias  Sanchez  and  Maribel  Pascual  (eds), 
Fundamental  Rights  in  the  EU  Area  of  Freedom,  Security  and  Justice  (Cambridge 
University Press 2021); Paola Pannia, 'Tightening Asylum and Migration Law and 
Narrowing  the  Access  to  European  Countries:  A  Comparative  Discussion'  in 
Veronica  Federico  and  Simone  Baglioni  (eds),  Migrants,  Refugees  and  Asylum 
Seekers' Integration in European Labour Markets: A Comparative Approach on Legal 
Barriers and Enablers (Springer 2021). 
Alison  Mountz,  The  Death  of  Asylum:  Hidden  Geographies  of  the  Enforcement 
Archipelago (University of Minnesota Press 2020). 
Jessica  Schultz  and  others,  'Collective  Protection  as  a  Short-term  Solution: 
European  Responses  to  the  Protection  Needs  of  Refugees  from  the  War  in 
Ukraine'  (EU  Immigration  and  Asylum  Law  and  Policy,  8  March  2022) 
<https://eumigrationlawblog.eu/collective-protection-as-a-short-term-solution-
european-responses-to-the-protection-needs-of-refugees-from-the-war-in-
ukraine/#more-8300> accessed 31 March 2022. 

 
 
 
 
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European Journal of Legal Studies  

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towards the displaced Ukrainians is to be welcomed, it is too early to predict 
how long this different discourse is going to last (or rather to what extent we 
are really witnessing a change of paradigm), as well as how the socio-economic 
and civil rights of the displaced Ukrainians will be ensured in the long run and 
under which particular legal status (limited to temporary protection, refugee 
or  subsidiary  protection,  long-term  residence).14  In  the  likely  scenario  that 
Member  States  confer  a  variable  geometry  of  rights  on  Ukrainians,  the 
judicially  developed  human  rights  standards  discussed  in  this  Special  Issue 
will prove useful. 

The portrayal of asylum seekers as abusing the Common European Asylum 
System  ('CEAS'),  placing  a  burden  on  economy,15  and  posing  a  threat  to 
security16 has reverberated among  the European population, leading to the 
rise  of  populist  parties  whose  governments  defy  European  and  domestic 
jurisprudence upholding European Union (EU) asylum norms and rule of law 
standards.17  Moreover,  the  perpetual  political  stalemate  with  respect  to 
reforming  the  CEAS18  has  left  room  for  mushrooming  national  responses 

14 

15 

16 

17 

18 

2022) 

Daniel  Thym, 
'Temporary  Protection  for  Ukrainians:  the  Unexpected 
Renaissance of "Free Choice"' (EU Immigration and Asylum Law and Policy, 7 
March 
<https://eumigrationlawblog.eu/temporary-protection-for-
ukrainians-the-unexpected-renaissance-of-free-choice/> accessed 31 March 2022; 
Meltem  İneli  Ciğer,  '5  Reasons  Why:  Understanding  the  Reasons  Behind  the 
Activation of the Temporary Protection Directive in 2022' (EU Immigration and 
Asylum  Law  and  Policy,  7  March  2022)  <https://eumigrationlawblog.eu/5-
reasons-why-understanding-the-reasons-behind-the-activation-of-the-
temporary-protection-directive-in-2022/> accessed 2 April 2022. 
Adel-Naim Reyhani and Gloria Golmohammadi, 'The Limits of Static Interests: 
Appreciating Asylum Seekers' Contributions to a Country's Economy in Article 
8 ECHR Adjudication on Expulsion' (2021) 33 International Journal of Refugee 
Law 3. See also Pannia (n 8). 
This is particularly vivid in Poland. See Szulecka (n 3). 
Bruno De Witte and Evangelia Lilian Tsourdi, 'A. Court of Justice Confrontation 
on  Relocation–The  Court  of  Justice  Endorses  the  Emergency  Scheme  for 
Compulsory Relocation of Asylum Seekers within the European Union (2018) 55 
Common Market Law Review 1457; Evangelia Lilian Tsourdi, 'Asylum in the EU: 
One  of  the  Many  Faces  of  Rule  of  Law  Backsliding?'  (2021)  17  European 
Constitutional Law Review 471. 
Since  the  2015  refugee  crisis,  the  European  Commission  has  put  forward  two 
proposals for reforming the CEAS: one in 2016 and another in 2020. European 

 
 
 
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Editorial 

5 

prioritising the fight against irregular migration and restriction of access to 
asylum rather than developing European solidarity in asylum and migration 
policies.19  

States combine external migration control practices that reduce legal entry 
pathways and escape the radar of judicial review20 with more subtle forms of 
internal  migration  control.21  Everywhere  in  Europe,  states  have  structured 
their  welfare  systems  to  reflect  and  consolidate  choices  and  perceptions 
about "wanted" and "unwanted" migrants (i.e. based on the supposed burden 
they place upon the state). 

Within  this  charged  political  context,  European  and  domestic  courts  have 
been  increasingly  seized  to  decide  on  the  conformity  of  Member  States' 
deterrence  policies  and  exclusion  practices  with 
international  and 
supranational migration and human rights  norms, as  well as  with migrants' 
constitutionally recognised rights and the essential value of the rule of law in 
a democratic society. By highlighting practices such as generalised push- and 
pullbacks,  immigration  detention  and  derivate  measures  that  similarly 

and  Policy,  October 

'Communication  from  the  Commission  to  the  European 
Commission, 
Parliament  and  the  Council:  Towards  a  Reform  of  the  Common  European 
Asylum  System  and  Enhancing  Legal  Avenues  to  Europe'  (6  April  2016) 
'Communication  from  the 
COM(2016)197  final;  European  Commission, 
Commission to the European Parliament, the Council, the European Economic 
and  Social  Committee  and  the  Committee  of  the  Regions  on  a  New  Pact  on 
Migration and Asylum (23 September 2020) COM(2020)609 final. However the 
future  of  the  2020  reform  is  still  uncertain.  See  Daniel  Thym  (ed),  'Special 
Collection  on  the  "New"  Migration  and  Asylum  Pact'  (EU  Immigration  and 
Asylum  Law 
2021)  <https:// 
eumigrationlawblog.eu/series-on-the-migration-pact-published-under-the-
supervision-of-daniel-thym/> accessed 31 March 2022. 
Luisa  Marin,  Simone  Penasa  and  Graziella  Romeo,  'Migration  Crises  and  the 
Principle  of  Solidarity  in  Times  of  Sovereignism:  Challenges  for  EU  Law  and 
Polity' (2020) 22 European Journal of Migration and Law 1. 
Cathryn  Costello  and  Itamar  Mann, 
'Border  Justice:  Migration  and 
Accountability for Human Rights Violations' (2020) 21 German Law Journal 311. 
Andrew  Geddes,  'Migration  and  the  Welfare  State  in  Europe'  (2003)  74  The 
Political Quarterly 150; Ilker Ataç and Sinenglinde Rosenberger, 'Social Policies 
as a Tool of Migration Control' (2019) 17 Journal of Immigrant & Refugee Studies 
1; Pannia (n 8). 

2020-February 

19 

20 

21 

 
 
 
 
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deprive  asylum  seekers  and  immigrants  of  their  right  to  liberty,  such  cases 
have inherently required courts to adjudicate incidentally on the decades-old 
tension between the declared interests of receiving States and the rights of 
refugees,  asylum  seekers,  migrants  and  irregularly  present  third  country 
nationals.22 As central pillars of the rule of law and human rights enforcement, 
courts have the potential to ensure checks and balances against the growing 
trend  of  executivization  of  immigration  policies.23  Doubtlessly,  'courts  are 
central to the rule of law',24 and apex courts are even more so, as they should, 
by definition, protect the principles of legal certainty and the equal treatment 
of everybody by guaranteeing the uniform interpretation of the law, ensuring 
that states comply with international human rights and migration norms, as 
well as the constitution, in the production of migration law and, with specific 
reference  to  constitutional  courts,  defending  the  normative  superiority  of 
the constitution and the coherence of the system of values.25 

Hence,  investigating  what  European  and  domestic  courts  say  on  migrants' 
rights  becomes,  on  the  one  hand,  an  interesting  exploratory  ground  for 
investigating the role of courts on the rule of law in the 21st century. On the 
other hand, it facilitates the discussion of migration governance through the 
lens of case law, which often tends to remain a domain reservé for practitioners 
and specialists of migration law. By doing so, this Special Issue proposes a new 
analytical  perspective,  highlighting  specificities  and  common  trends  in 
strategic litigation and courts' reasoning to allow for a critical discussion of 
the role of the courts in migration governance and their capacity to elaborate 

22 

23 

24 

25 

in 

'The  COVID-19  Emergency 

Since the adoption of the 1951 Convention relating to the Status of Refugees: 189 
UNTS 137 (hereinafter the 1951 Refugee Convention).  
Jan  Petrov, 
the  Age  of  Executive 
Aggrandizement: What Role for Legislative and Judicial Checks?' (2020) 8 The 
Theory and Practice of Legislation 71. 
Cheryl Saunders, 'Courts with Constitutional Jurisdiction' in Roger Masterman 
and Robert Schütze (eds), The Cambridge Companion to Comparative Constitutional 
Law (Cambridge University Press 2019) 414. 
By 'apex courts' we refer to those courts with jurisdiction to interpret and apply 
the  constitution  and  eventually  sanction  constitutional  breaches,  as  well  as 
supreme courts with jurisdiction to unify the jurisprudence of ordinary courts by 
solving normative disagreements. 

 
 
 
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Editorial 

7 

new  legal  paradigms  to  regulate  this  specific  policy  domain.26  In  spite  of  a 
growing  scholarly  focus  on  apex  courts'  role  in  migration  governance,  the 
topic  still  lacks  systematic  and  comparative  analysis  covering  various  legal 
forms  of  migration  and  the  reasoning  of  both  transnational  and  domestic 
courts. In fact, a large majority of the works published so far has focused on 
specific  national  case  studies,  supranational  courts,  or  migrant  segments 
(such  as  refugees,  irregular  or  economic  migrants).27  The  considerable 
number of national cases analysed in this Special Issue, complemented by its 
analysis  of  the  European  Court  of  Justice  and  its  comparative  approach, 
contributes  to  filling  a  gap  in  both  migration  and  constitutional  law.  This 
Special Issue aims thus to expand the analysis of the role of courts in shaping 
migration governance by approaching the issue from a contemporary rights-
based perspective. 

Indeed, the comparative discussion of a number of European and domestic 
courts'  reasoning  patterns  and  variables  opens  the  way  for  unveiling 
inconsistencies and contradictions in the way the rule of law is conceived in 
contemporary European democracies. While European courts are bound by 
the  same  international  and  supranational  norms  governing  asylum  and 

26 

27 

See Christian Joppke, 'The Legal-Domestic Sources of Immigrant Rights: The 
United  States,  Germany,  and  the  European  Union'  (2001)  34  Comparative 
Political Studies 339; Gallya Lahav and Virginie Guiraudon, 'Actors and Venues 
in Immigration Control: Closing the Gap Between Political Demands and Policy 
Outcomes'  (2006)  29  West  European  Politics  201;  Leila  Kawar,  'Juridical 
Framings  of  Immigrants  in  the  United  States  and  France:  Courts,  Social 
Movements,  and  Symbolic  Politics'  (2012)  46  International  Migration  Review 
414;  Dia  Anagnostou  (ed),  Rights  and  Courts  in  Pursuit  of  Social  Change:  Legal 
Mobilisation in the Multi-level European System (Bloomsbury 2014). 
See  e.g.  Hélène  Lambert  and  Guy  S  Goodwin-Gill,  The  Limits  of  Transnational 
Law: Refugee Law, Policy Harmonization and Judicial Dialogue in the European Union 
(Cambridge  University  Press  2010);  Cathryn  Costello,  'Courting  Access  to 
Asylum  in  Europe:  Recent  Supranational  Jurisprudence  Explored'  (2012)  12 
Human  Rights  Law  Review  287;  Violeta  Moreno-Lax  Accessing  Asylum  in 
EuropeExtraterritorial  Border  Controls  and  Refugee  Rights  under  EU  Law  (Oxford 
Univeristy  Press  2019);  Madalina  Moraru,  Galina  Cornelisse  and  Philippe  de 
Bruycker,  Law  and  Judicial  Dialogue  on  the  Return  of  Irregular  Migrants  from  the 
European Union (Hart 2020). For a notable exception, see Giovanni Carlo Bruno, 
Fulvio  Maria  Palombino  and  Adriana  Di  Stefano  (eds),  Migration  Issues  before 
International Courts and Tribunals (CNR edizioni 2019). 

 
 
 
 
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migration,  and  should  in  principle  provide  similar  interpretations  of 
domestic deterrence policies based on the principle of uniform and effective 
implementation of EU law, there is nonetheless judicial disagreement over 
whether courts have jurisdiction to assess such barriers28 and whether these 
barriers comply with the international and supranational norms (e.g. Refugee 
Convention, European Convention on Human Rights, EU law).29 

Against  this  backdrop,  this  Special  Issue  collects  articles  addressing  the 
following  questions:  How  do  Courts  position  themselves  vis-à-vis  the 
political power in the migration domain, which is a context characterized by 
radical attacks on the rule of law? What are the effects of judicial assessments 
on  asylum  seekers,  migrants,  refugees  and  immigrants'  rights  in  Europe? 
What  is  the  reasoning  underlying  judgments  on  asylum-  and  migration-
related matters? In responding to these questions, the articles in this Special 
Issue go beyond mere summaries of the key national cases on asylum seekers', 
migrants' and immigrants' rights, identifying the challenges from inside and 
outside of the judiciary which led to incoherent jurisprudence and concluding 
by offering a constructive path towards improving identified deficiencies. 

This  editorial  explains  the  selection  of  jurisdictions,  courts  and  rights 
analysed  in  this  Special  Issue  (Section  II),  briefly  summarizes  the 
contributions  included  herein  (Section  III)  and  illustrates  the  common 
themes that have emerged from these contributions on the role of courts in 
(im)migration governance (Section IV). 

28 

29 

For instance, on assessing the legality of EU-Turkey Statement, compare Case T-
192/16,  NF  v  European  Council  EU:T:2017:128  with  Council  of  State  (Greece), 
Decision 805/2018; Council of State (Greece), Decision 806/2018. 
For  instance,  on  the  legality  of  detention  in  border  centres,  compare  Ilias  and 
Ahmed  v  Hungary  App  No.  47287/15  (ECtHR,  21  November  2019)  with 
Administrative  Tribunal  of  Paris  (France),  Decision  1602545/9  of  22  February 
2016;  Tribunal  of  Florence  (Italy),  Case  14046/2017;Tribunal  of  Genoa  (Italy), 
Case 12716/2017; Tribunal of Rome (Italy), Case 62213/2017; Case C-924/19 and C-
925/19  FMS  and  Others  v  Országos  Idegenrendészeti  Főigazgatóság  Dél-alföldi 
Regionális  Igazgatóság  and  Országos  Idegenrendészeti  Főigazgatóság  EU:C:2020:367. 
On the legality of pushbacks, compare Constitutional Court of Serbia, Decision 
Už-1823/2017  of  9  December  2020  with  Constitutional  Court  of  Croatia, 
Decision of 18 December 2018; Constitutional Court of Croatia, Decision of 4 
March 2021. 

 
 
 
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9 

II. WHAT EUROPEAN COURTS SAY ON MIGRANTS' RIGHTS: PATTERNS 
AND VARIABLES 

This Special Issue choses to focus on Greece, France, Italy and Poland, which 
are  Member  States  located  at  the  EU's  external  borders  that  have 
experienced a dramatic increase in migration flows in the last decade while 
also being affected by parallel crises impacting the economy and the rule of 
law, which have resulted in anti-refugee sentiments encouraged by political 
discourse.  Over  the  last  few  decades,  successive  governments  in  these 
countries have thus modified aspects of immigration law, mostly following a 
restrictive trend. 

In Greece, the government responded to the EU-Turkey statement in March 
2016  and  the  2020  pandemic  by  escalating  its  longstanding  policy  of 
generalised  immigration  detention.30  Similarly,  the  Italian  government  has 
responded  with  an  increasingly  security-based  and  regressive  approach, 
culminating  in  2018  with  the  Salvini  Decree,  which  has  severely  curtailed 
foreigners' rights.31 The effects of this and other related measures have been 
only partially mitigated by the actions of Courts and by a new Law Decree (n. 
130/2020).32  Along  the  same  lines,  immigration  has  become  an  increasingly 
heated  political  issue  in  France.  The  legislative  framework  regulating  the 
legal status of foreigners has been subjected to frequent changes over the past 
forty  years,  mostly  aimed  at  tackling  irregular  migration  while  narrowing 
down  the  legal  entry  channels  into  the  country,  restraining  access  to 

30 

31 

32 

See Angeli and Anagnostou (n 7). 
DL  4  ottobre  2018,  n  113,  Disposizioni  urgenti  in  materia  di  protezione 
internazionale  e  immigrazione,  sicurezza  pubblica,  nonché  misure  per  la 
funzionalità  del  Ministero  dell'interno  e  l'organizzazione  e  il  funzionamento 
dell'Agenzia  nazionale  per 
la  destinazione  dei  beni 
l'amministrazione  e 
sequestrati e confiscati alla criminalità organizzata, converted with amendments 
by L 1 dicembre 2018, n 132. 
DL  21  ottobre  2020,  n  130,  Disposizioni  urgenti  in  materia  di  immigrazione, 
protezione internazionale e complementare, modifiche agli articoli 131-bis, 391-
bis, 391-ter e 588 del codice penale, nonché misure in materia di divieto di accesso 
agli  esercizi  pubblici  ed  ai  locali  di  pubblico  trattenimento,  di  contrasto 
all'utilizzo distorto del web e di disciplina del Garante nazionale dei diritti delle 
persone  private  della  libertà  personale,  converted  with  amendments  by  L  18 
dicembre 2020, n 173. 

 
 
 
 
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international protection and imposing more and more residency conditions 
on foreigners. Finally, while Polish authorities appear to have adopted a more 
ambiguous  stance  on  migration  and  asylum  –  becoming  renowned  for  its 
"liberalizing" approach toward migrant workers – restrictive tendencies are 
also  on  display  in  this  context.  Since  2015,  the  government  has  explicitly 
adopted  a  closed-door  policy  toward  asylum  seekers  and  refugees,  except 
those coming from 'culturally close' countries in Eastern Europe, as well as 
regions with a Polish diaspora or ethnic Poles.33 

In some cases, even European institutions have aligned themselves with the 
restrictive  policies  enacted  at  the  domestic  level.  Restrictions  on  the 
procedural requirements for asylum and immigration hearings, as well as gaps 
in EU secondary legislation on the protection of the right to be heard, can be 
considered paradigmatic of this tendency.34 

The  articles  in  the  Special  Issue  analyse  the  role  of  courts,  in  particular 
supreme  or  constitutional  courts  (the  Polish  Supreme  Administrative 
Court,35  the  Italian  Constitutional  Court,36  the  French  Constitutional 
Court,37  and  the  Greek  Council  of  State38),  but  also  lower  administrative 
courts and supranational courts (the Court of Justice of the EU (CJEU)39 and 
the  European  Court  of  Human  Rights  (ECtHR)40)  in  ensuring  asylum 
seekers',  refugees',  migrants'  and  immigrants'  civil  and  socio-economic41 
rights – both procedural and substantive – within a political context of rights' 
reduction and exclusion. Immigration detention has been on the rise in all 
national  jurisdictions  covered  by  this  Special  Issue,  in  the  context  of 

33 

34 

35 

36 

37 

38 

Szulecka (n 3). 
See  Commission,  'Communication  from  the  Commission  on  a  New  Pact  on 
Migration and Asylum' COM (2020) 609 final; Galina Cornelisse and Marcelle 
Reneman, 'Border Procedures in the Commission's New Pact on Migration and 
Asylum:  A  Case  of  Politics  Outplaying  Rationality'  (2021)  26  European  Law 
Journal 181. 
Szulecka (n 3). 
Pannia (n 8) 
Imbert (n 7) 
Angeli and Anagnostou (n 7). 

39  Moraru (n 8). 
40 

41 

Szulecka (n 3); Angeli and Anagnostou (n 7). 
Pannia (n 8). 

 
 
 
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11 

increased migration flows and public perceptions of immigrants as a threat to 
security and public order. Nevertheless, the approaches of the Greek Council 
of State and the French Constitutional Court on immigration detention have 
been diametrically opposed. It will be shown that litigation has been resorted 
to  as  a  strategy  to  unblock  access  to  asylum  procedure  and  ensure  its 
enactment according to precepts of access to justice. 

Building on the case-law of the CJEU and four national case-studies (France, 
Greece,  Italy  and  Poland,  which  present  a  high  variability  in  terms  of  the 
structure of the legal system and the traditional role of the courts in it, as well 
as  numbers  of  immigrants  and  types  of  immigration),  this  Special  Issue 
provides the reader with a critical overview of the most significant aspects of 
courts' jurisprudence and argumentation techniques in the migration-related 
domain  in  Europe.  In  terms  of  overarching  patterns,  courts  have  been 
characterised  neither  by  a  pronounced  activism  nor  by  a  uniform, 
transformative  jurisprudence.  On  the  contrary,  the  articles  in  this  Special 
Issue suggest that courts exercise a sort of Janus-faced attitude. As has been 
seen in France and Greece, for instance, some courts assume the traditional 
role  of  'mouthpiece  of  the  law',  restricted  to  applying  the  law  as  it  is,  thus 
reinforcing  existing  patterns  of  social  exclusion  and  rubber-stamping 
migration policies whose conformity with supranational and constitutional 
fundamental  rights  is  questionable.  Meanwhile,  other  courts  such  as  the 
CJEU and the Italian Constitutional Court have taken on the role of active 
protectors  of  rule  of  law  and  constitutional  rights.  Moreover,  in  recent 
decades,  the  Europeanization  of  migration  law  has  contributed  to  judicial 
empowerment, which has been used, on occasion, by both constitutional and 
ordinary  courts  to  actively  improve  the  conditions  of  vulnerable  groups  of 
migrants that have, in one way or another, been left behind by the political 
system. 

The  four  countries  examined  provide  a  variety  of  important  insights  into 
migrants', refugees' and asylum applicants' entry channels and statuses, legal 
frameworks and fundamental rights protection. Despite the harmonisation 
efforts at the EU level, differences persist at various levels among European 
countries.  Those  differences  are  determined  by  different  patterns  of 
migration  flows  –  that  is,  refugees,  beneficiaries  of  subsidiary  and 
humanitarian  protection  and  asylum  applicants,  on  the  one  hand,  and 

 
 
 
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economic migrants, on the other. The Greek and Italian articles, for example, 
illustrate  how  the  cumulated  effects  of  the  economic  and  the  so-called 
refugee  crisis  have  put  a  high  degree  of  political  pressure  on  courts  when 
deciding  on  migrants'  rights.  Concerns  about  effective  management  of 
justice have led to emphasis on fast delivery of judgments and the restriction 
of access to social welfare benefits, which has contributed to a certain judicial 
self-restraint  and  efforts  to  balance  rights  effectiveness  with  critical 
economic  exigencies.  Nevertheless,  neither  large  influxes  nor  dire  socio-
economic  conditions  have  obstructed  the  emergence  of  new  paradigms  of 
justice from the Italian Constitutional Court and Greek courts, particularly 
those  implementing  European  judgments.  This  means  that,  despite  what 
governments and their policies suggest, the economic costs of migration are 
not incompatible with fundamental rights protection. 

On the other hand, the analysed countries also have different legal, political 
and court systems, which influence how legislators, policymakers and courts 
react to the migration inflows. The design, functions, impact and legitimacy 
of the judiciary and of apex courts are crucial in understanding and comparing 
their jurisprudence,42 as well as their role in the current migration governance 
system in its broadest sense. This is best exemplified by the French article, 
which shows how the political fragility of the Constitutional Council and its 
election  system  has  contributed  to  a  politicisation  of  its  migration-related 
jurisprudence. In the same vein, the Polish case illustrates a worrying trend 
of  lack  of  enforcement  of  judgments  by  the  executive,  whereas  in  systems 
where  courts  are  salient  players  in  the  political  process,  as  in  Italy, 
governments and legislatures are more receptive of their judgments. 

Interestingly, notwithstanding such diversity, courts throughout Europe find 
themselves in the same challenging position. They are caught between two 
equally  strong  but  opposing  tensions.  On  the  one  hand,  following  the 
imperatives  of  the  globalising  doctrine  of  fundamental  rights,43  courts  are 

42 

43 

Paul Brace and Melinda Gann Hall, 'Studying Courts Comparatively: The View 
from  the  American  States'  (1995)  48  Political  Research  Quarterly  5;  Nick 
Robinson, 'Structure Matters: The Impact of Court Structure on the Indian and 
US Supreme Courts' (2013) 61 The American Journal of Comparative Law 173. 
Andrew Clapham, 'The Jus Cogens Prohibition of Torture and the Importance 
of Sovereign State Immunity', in Marcelo G. Kohen (ed), Promoting Justice, Human 

 
 
 
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13 

called upon to protect the rights and dignity of one of the most vulnerable 
categories  of  individuals  in  current  times:  migrants.44  On  the  other  hand, 
courts have to respect and enforce the nation-states' prerogative to maintain 
both their discretional power over the entry and residence of aliens and the 
distinction  between  citizens  and  aliens,  which,  since  the  emergence  of  the 
post-Westphalian notion of statehood, defines their sovereignty.45 Balancing 
these  two  requirements,  which  assume  different  shades  in  the  different 
jurisdictions, is not an easy task, and it does not depend exclusively on pure 
legal  reasoning.  Indeed,  adjudicating  cases  involving  migrants'  rights  quite 
often  requires  courts  to  tailor  their  arguments  to  fit  a  larger  audience,  as 
migration is one of the most politically, socially and economically sensitive 
domains of current times.46 

The number of cases brought to the courts' attention is growing and these 
cases cover the whole spectrum of the asylum and migration policy domain: 
from  immigration  law  (entering  the  country  and  the  EU  with  which  legal 
status and under which conditions, the right to international protection and 
to other forms of national protection and non-refoulement) to fundamental 
freedoms  and  civil  liberties;  from  socio-economic  rights  to  integration 
measures. The focus changes across the articles. The purpose of this Special 
Issue is to offer a multifaced and multi-dimensional mosaic in which each of 
the different national "tiles" contributes to a greater understanding of one of 
the  most  challenging  political,  social  and  legal  questions  of  the  new 

44 

Rights and Conflict Resolution through International Law/La promotion de la justice, des 
droits  de  l'homme  et  du  règlement  des  conflits  par  le  droit  international  (Brill  Nijhoff 
2007);  Dieter  Grimm,  Constitutionalism:  Past,  Present,  and  Future  (Oxford 
University Press 2016). 
Ayten  Gündogdu,  Rightlessness  in  an  Age  of  Rights:  Hannah  Arendt  and  the 
Contemporary  Struggles  of  Migrants  (Oxford  University  Press  2014);  Cathryn 
Costello, The Human Rights of Migrants in European Law (Oxford University Press 
2016). 

46 

45  Marinella Marmo and Maria Giannacopoulos, 'Cycles of Judicial and Executive 
Power in Irregular Migration' (2017) 5 Comparative Migration Studies 1. 
Paul  Statham  and  Andrew  Geddes,  'Elites  and  the  "Organised  Public":  Who 
Drives  British  Immigration  Politics  and  in Which  Direction?'  (2006)  29 West 
European Politics 248; Nathaniel Persily, Jack Citrin and Patrick J Egan, Public 
Opinion and Constitutional Controversy (Oxford University Press 2008). 

 
 
 
 
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millennium for Europe, that is: the governance of migration at both Member 
States' and Union levels. 

III. OVERVIEW OF THIS SPECIAL ISSUE 

This  Special  Issue47  starts  with  an  article  that  analyses  how  the  CJEU  has 
shaped new rights to be heard for asylum seekers and irregular migrants and 
contributed  to  the  enhancement  of  legal  accountability  of  domestic 
executives.  The  task  of  the  CJEU  to  guarantee  EU-derived  rights  for 
migrants has not been easy given the limitations to its jurisdiction resulting 
from the principles of conferred powers and national procedural autonomy, 
as  well  as  the  opposing  views  coming  from  the  litigants,  governments  and 
domestic courts. The conflict resolution approach of the CJEU has been one 
of  small  but  steady  steps  towards  enhancing  the  European  standards  of 
protection  of  the  right  to  be  heard  of  asylum  seekers  and  immigrants 
compared  to  the  domestic  level.  Nevertheless,  the  Court's  approach  in 
shaping migrants' rights has given rise to criticism, either for being too active 
or too restrained. In the first years after the entry into force of the Charter of 
Fundamental Rights of the EU, the CJEU was praised for actively promoting 
the human rights of migrants.48 In recent years, the CJEU has faced criticism 
that it displays passivity, self-restraint and a lack of constitutional vision in 
migration.49 

A  re-examination  was  therefore  needed,  and  conclusions  must  be  drawn  – 
both about what can be demanded of the CJEU and what can be expected 
from the normative frameworks within which the Court operates. Moraru's 
article argues that none of the labels ascribed to the CJEU's role on migrants' 
rights  apply  to  the  case  law  on  the  right  to  be  heard.  The  Court  has  not 
displayed  a  straightforward  deferential,  idiosyncratic,  protectionist  or 
activist role. Instead, the Court's conflict-resolution interpretation reflects a 

47 

48 

49 

The articles in this Special Issue were submitted between June and September 
2021. 
Costello (n 44). 
Daniel Thym, 'A Bird's Eye View on ECJ Judgments on Immigration, Asylum and 
Border Control Cases' (2019) 21 European Journal of Migration and Law 166; Iris 
Goldner Lang, 'Towards "Judicial Passivism" in EU Migration and Asylum Law?' 
(2020). 

 
 
 
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15 

compromise  between  various  conflicting 
that 
materialised in small but steady steps towards an inviolable core of an asylum 
seekers'  and  immigrants'  right  to  be  heard  that  goes  beyond  some  of  the 
domestic standards of protection. 

judicial  preferences 

This  introductory  and  contextualising  contribution  allows  the  subsequent 
four articles to focus on different national case-studies. The cases of France, 
Greece,  Italy  and  Poland  illustrate  specific  national  traits  in  terms  of 
immigration  phenomena  and  of  rights  litigation,  highlighting  peculiar 
aspects of courts' involvement in migration governance, their contributions 
and their limitations in crafting new paradigms through their ratio decidendi. 

In  the  French  case,  Imbert  argues  that  the  Constitutional  Council  'has 
endorsed, for the most part, the legislator's immigration policies'.50 Despite 
various  fundamental  rights  achievements,  whereby  the  Council  confirmed 
that foreigners are protected by the Constitution, 'filled in part of the gaps' 
regarding foreigners' constitutional rights and struck down laws prolonging 
administrative  detention  or  lacking  sufficient  effective  judicial  remedies,51 
the Constitutional Council has predominantly followed a similar approach to 
that  of  the  legislator.  As  the  'fight  against  irregular  migration'  became  an 
overarching  goal  of  immigration  policies  pursued  by  the  legislator  and  the 
administration, the Council translated this aim into constitutional terms by 
linking it to the safeguarding of public order, an objective of constitutional 
value against which foreigners' rights – even the most fundamental – are often 
balanced.52 Little space for different legal paradigms is allowed. 

In  Greece,  the  development  of  the  jurisprudence  has  been  heterogenous, 
often  with  inconsistent  outcomes,  especially  on  immigration  detention, 
which is the focus of the article. Anagnostou and Angeli argue that, while the 
Greek  system  of  allocating  jurisdiction  over  immigration  detention  to  a 
single  administrative  judge  has  the  advantage  of  speed  and  flexibility, 
nevertheless,  the  lack  of  a  second  instance  jurisdiction  has  a  number  of 
detrimental consequences. The authors show how Greece's peculiar judicial 
system  undermines  rights  protection  and  reinforces  legal  ambiguity  and 

50 

51 

52 

Imbert (n 7) 64. 
Cons  const,  décision  n°  89-269  DC  du  22  janvier  1990,  Loi  portant  diverses 
dispositions relatives à la sécurité sociale et à la santé, cons 33, 42. 
Imbert (n 7) 95. 

 
 
 
 
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inconsistency.  Moreover,  this  system  shields  lawmakers  from  the  kind  of 
judicial review that is conducive to rights protection and compliant with the 
ECHR and EU law. As already mentioned, the Greek case clearly shows how 
the  institutional  design  of  domestic  court  systems  is  crucial  to  enabling 
courts to fulfil their rule of law mandate in migration law. The article calls for 
an  institutional  reform  that  would  allow  for  higher  administrative  courts, 
such  as  the  Council  of  State,  to  act  as  appellate  courts  and  review  the 
constitutionality  of  detention  orders.  This  would  strengthen  the  ability  of 
national judges to resolve long-standing normative questions about the law. 
It would ultimately lead to a kind of judicial control that is more coherent and 
more conducive to human rights protection. 

judicialisation  of  migrants'  rights  has  progressively 

Shifting from detention to welfare rights, the Italian article highlights how 
led  to  the 
the 
constitutionalisation of those very same rights, which means that the Italian 
Constitutional  Court  has  often  moved  from  the  position  of  'negative 
lawmaker'53 to opt for transformative jurisprudence, whereby the inclusion of 
aliens has impacted the very nature of rights. A number of rights have been 
extended  by  the  Court  to  foreigners  who,  although  excluded  from 
democratic processes, have turned to the courts as the only channel for their 
welfare claims and the only possibility to vindicate their position in their host 
society. The Italian Constitutional Court has proven to be crucial in securing 
foreigners'  social  rights  against  restrictive  legal  provisions  approved  by  the 
legislator.  Its  decisions  were  mostly  driven  by  the  principles  of  non-
discrimination  and  solidarity,  which  were  given  priority  over  other 
considerations  such  as  budget  constraints  and  political  choices  tied  to  the 
allocation of economic resources. However, the Court's reasoning is not plain 
and  coherent.  When  social  rights  do  not  serve  'primary  needs'  or  are  not 
related  to  'fundamental  inviolable  rights',  the  Court  has  conditioned 
foreigners'  access  to  social  rights  upon  the  requirement  of  EU-long  term 
residence or other prolonged residency status.54 

An  overarching  theme  in  the  European  courts'  case-law  is  the  relationship 
between  national  and  supranational  courts,  which  sometimes  becomes  a 
proper dialogue. In the Polish case, the juxtaposition of the observably weak 

53 

54 

Hans Kelsen, La giustizia costituzionale (Carmelo Geraci tr, Giuffrè 1981) 257. 
Pannia (n 8) 165. 

 
 
 
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17 

the 

role of national courts with the great expectations linked to legal intervention 
by international bodies, in particular the ECtHR, is paradigmatic. Szulecka 
claims that the crisis of the rule of law and the threatened independence of 
the judiciary, combined with the spread of anti-immigrant and anti-refugee 
inefficacy  of  Polish  national  courts' 
sentiments,  exacerbate 
jurisprudence,  especially  when  it  is  'incompatible  with  [the  government's] 
vision  for  forced  migration  management'.55  The  Italian  case,  in  contrast, 
shows  a  different  approach.  In  2020,  the  Italian  Constitutional  Court 
resorted to the preliminary reference procedure, asking the CJEU to offer an 
interpretation  of  relevant  EU  labour  migration  provisions  in  order  to 
law  of  domestic  provisions 
determine  the  compatibility  with  EU 
conditioning access to maternity and childbirth allowances to the possession 
of  an  EU-long  term  residence  permit.56  The  subsequent  decisions  of  the 
Court  of  Justice57  and  the  Italian  Constitutional  Court58  represent  an 
example  of  a  fruitful  and  collaborative  dialogue,  which  has  resulted  in  an 
expanded protection for foreigners' social rights.59 

IV. THE ROLE OF COURTS AND THE RULE OF LAW IN (IM)MIGRATION 
GOVERNANCE 

The  domain  of  migration  is  peculiar  compared  to  other  fields  of  law  for  a 
number of reasons. Firstly, the law-making and decision-making processes in 
the field are characterized by an evident unbalance, at least at national and 
EU levels. Asylum seekers, refugees and immigrants do not have a say (at least 
directly) in the law-making and decision-making processes that so crucially 
affect their lives. This perspective is particularly interesting for the study of 

55 

56 

57 

58 

59 

Szulecka (n 3) 208. 
Corte  cost,  30  luglio  2020,  n  182,  available  in  English  at  <https://www. 
cortecostituzionale.it/documenti/download/doc/recent_judgments/EN_Ordina
nza_182_2020_Sciarra.pdf> accessed 8 April 2022. 
Case  C-350/20  OD  and  Others  v  Istituto  nazionale  della  previdenza  sociale  (INPS) 
EU:C:2021:659. 
Corte cost, 11 gennaio 2022, n 54. 
For a recent wider analysis of the added value of judicial dialogue on fundamental 
rights  protection,  see  Federica  Casarosa  and  Madalina  Moraru,  The  Practice  of 
Judicial Interaction in the Field of Fundamental Rights - The Added Value of the Charter 
of Fundamental Rights of the EU (Edward Elgar 2022). 

 
 
 
 
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courts.  The  role  of  the  courts  in  protecting  minorities'  rights  against  the 
'tyranny of the majority' has been a cornerstone of the checks and balances 
doctrine since the 18th century.60 More recently, it has been revamped and 
reframed  in  terms  of  the  courts'  counter-majoritarian  role  to  protect 
just 
particularly  vulnerable  (or 
mentioned,  are  not  ordinary  minorities,  as  they  are  formally  and  explicitly 
excluded from the 'democratic membership' by not possessing the right to 
vote.62 This means that, in the field of immigration, the role of the courts may 
become ontologically counter-majoritarian.  

'insular')  minorities.61  But  aliens,  as 

Courts  represent  one  of  the  most  extreme  proving  grounds  for  what 
Norberto Bobbio names 'the age of rights'; that is, the affirmation of the law 
ex parte populi.63 Indeed, due to the non-liquet rule, judges cannot refrain from 
responding  to  migrants'  claims  that  they  receive.  By  adjudicating  on 
migrants'  rights,  judges  inevitably  end  up  giving  space  to  migrants'  claims, 
which, otherwise, would be at risk of remaining unheard. Against the fallacies 
of migration policies and the legal systems' voids, courts provide foreigners 
with a public forum to voice their demands for justice. How far courts push 
this aspect of their role depends not solely on the legal context, but also on 
the cultural, political, institutional, historical and socio-economic context in 
which the courts are embedded, on the patterns of migrants' rights litigation 
and on the recognition of a different role for international and EU norms in 

60 

61 

62 

63 

James  Madison,  'The  Particular  Structure  of  the  New  Government  and  the 
Distribution  of  Power  Among  Its  Different  Parts'  The  New  York  Packet  (1 
February 1788) <https://avalon.law.yale.edu/18th_century/fed47.asp> accessed 26 
March 2022; John Adams, A Defence of the Constitutions of Government of the United 
States of America, vol 3 (C Dilly and John Stockdale 1788). 
John  Hart  Ely,  Democracy  and  Distrust:  A  Theory  of  Judicial  Review  (Harvard 
University  Press  1980);  Alexander  M  Bickel,  The  Least  Dangerous  Branch  (Yale 
University Press 1986); A Girardeau Spann,  Race Against the Court: The Supreme 
Court and Minorities in Contemporary America (New York University Press 1993). 
Ruth Rubio-Marin, Immigration as a Democratic Challenge: Citizenship and Inclusion 
in  Germany  and  the  United  States  (Cambridge  University  Press  2000);  Rainer 
Bauböck, Migration and Citizenship: Legal Status, Rights and Political Participation 
(Amsterdam University Press 2006); Jean-Thomas Arrighi and Rainer Bauböck, 
'A Multilevel Puzzle: Migrants' Voting Rights in National and Local Elections' 
(2017) 56 European Journal of Political Research 619. 
Norberto Bobbio, The Age of Rights (John Wiley & Sons 2017). 

 
 
 
2022} 

Editorial 

19 

the review of the constitutionality and legality of migration policies and laws, 
as will be discussed in the articles.  

in  several 

Secondly,  the  principle  of  separation  of  powers  has  had  a  different 
configuration  in  migration  whereby  the  executive  has  historically  been 
allocated a privileged role compared to the legislature and the judiciary – so 
much  so  that, 
jurisdictions,  the  executive  has  enjoyed 
plenipotentiary powers. The refugee and Covid-19 crises have amplified the 
imbalance among state powers by throwing legislatures into a state of crisis. 
The secondary role of parliaments and the constant erosion of the possibility 
for  democratic  scrutiny  can  be  regarded  as  a  general  trend  throughout  the 
countries analysed in this  Special Issue. Indeed, most countries bypass the 
use  of  ordinary  legislation  to  rule  over  migration  and  frequently  resort  to 
decrees or other informal acts, such as communications, standard operating 
procedures and circulars, thereby de facto eliminating parliamentary control 
and concentrating into the hands of the executive both decision-making and 
implementation.64 This is not irrelevant for the rule of law and for the role of 
courts  in  enforcing  it.  Therefore,  the  articles  in  this  Special  Issue  analyse 
these shifts in the separation of power doctrine and the ways in which courts 
have  attempted  to  counterbalance  the  plenipotentiary  powers  of  the 
executive. These judicial findings in the field of migration can inform newer 
theories  on  the  separation  of  powers  doctrine.65  Studying  courts' 
jurisprudence in such a domain, therefore, is useful for a better understanding 
of the migration governance system, on the one hand, and on the endurance 
of the rule of law of contemporary democracies, on the other hand.  

The national case studies of this Special Issue analyse the approach of various 
courts  –  supranational,  ordinary  and  constitutional  –  reviewing  various 
categories  of  rights  –procedural  (right  to  be  heard),  social  and  economic 
(access  to  social  welfare  benefits  and  employment  rights),  civil  (right  to 

64 

65 

Veronica  Federico  and  Paola  Pannia,  The  Ever-Changing  Picture  of  the  Legal 
Framework of Migration: A Comparative Analysis of Common Trends in Europe and 
Beyond,  in  Soner  Barthoma  and  Andreas  Onver  Cetrez  (eds),  RESPONDing  to 
Migration :  A  Holistic  Perspective  on  Migration  Governance  (Acta  Universitatis 
Upsaliensis 2021) 15. 
David Bilchitz and David Landau (eds), The Evolution of the Separation of Powers, 
(Edward Elgar 2019). 

 
 
 
 
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European Journal of Legal Studies  

{Special Issue 

liberty)  and  specific  substantive  (access  to  international  protection)  –
covering a wide range of migrants – economic third country nationals, asylum 
seekers,  irregular  migrants.  This  kaleidoscope  of  rights,  legal  statuses  and 
types  of  courts  facilitates  useful  insights  through  the  identification  of 
patterns  of  resemblance  and  divergence  in  how  courts  approach  migrants' 
rights and the impact on their judgments of key constitutional tenets such as 
the  separation  of  powers  principle.  While  the  analysed  courts  have  each 
displayed  some  degree  of  activism  in  expanding  their  remit  and  review 
powers, they differ in terms of the canons of interpretation they employ and 
the  outcomes  they  reach,  with  the  French  and  Italian  courts  in  particular 
reflective  of  opposite  approaches.  Therefore,  the  articles  will  explore 
whether there has been an empowerment of judges in the field of migration, 
characterised by an extension of judicial review and remedial powers. Such a 
judicial  empowerment  of  courts  in  migration  governance  would  inevitably 
alter  mainstream  migration  governance  theories,  whereby  the  access  to 
territory and civil, political and social rights of migrants are the prerogative 
of the legislature and executive. Moreover, the findings of this Special Issue 
inform how judicial empowerment in migration alters more general theories 
on the rule of law, the constitutional state, democratisation and the principal-
agent dynamic. 

The  articles  contained  in  this  Special  Issue  show  how  migration  often 
becomes  the  battleground  for  determining  crucial  aspects  of  domestic 
constitutional  design  and  deciding  on  politically  charged  challenges  to 
immigration policies. These include the role of judges vis-à-vis the executive 
(such as in France, Poland and Greece), the division of competence among 
different  levels  of  government  (as  in  the  Italian  example),  the  relationship 
between the legislative and the executive (see the French example) and the 
vertical division of powers between the EU and the Member States (CJEU). 
Finally, this also suggests how courts' decisions on migration (and the way in 
which it is managed and understood) can end up affecting the constitutional 
equilibrium of the country, in a "game of mirrors". 

 
 
 
ADJUDICATING MIGRANTS' RIGHTS: 
WHAT ARE EUROPEAN COURTS SAYING? 

THE EUROPEAN COURT OF JUSTICE SHAPING THE RIGHT TO BE HEARD 
FOR ASYLUM SEEKERS, RETURNEES, AND VISA APPLICANTS: AN 
EXERCISE IN JUDICIAL DIPLOMACY 

Madalina Moraru* 

This article analyses a decade of jurisprudence of the Court of Justice of the European 
Union  (CJEU,  the  Court)  to  show  how  the  Court  has  shaped  asylum  seekers'  and 
immigrants' right to be heard and to determine the added value of its jurisprudence to 
the  protection  of  the  right  to  be  heard  at  EU  and  domestic  levels. The  article  asks 
whether the CJEU has developed a specific conception of this right and whether this 
conception aligns with any of the existing scholarly characterisations of the CJEU's 
approach  to  migration:  activism,  passivism,  idiosyncratic,  or  favouring  the 
interpretation  of  governments  or  referring  courts.  The  article  finds  that,  taken 
together, the CJEU's judgments have shed light on the scope of application of the right 
to  be  heard  and  enhanced  the  overall  protection  of  this  right  for  asylum  seekers, 
returnees, and visa applicants by crafting common standards of when and how to hear 
individuals and by delimitating tasks between administrative authorities and courts. 
The  CJEU  has  thus  filled  significant  gaps  in  EU  secondary  legislation  on  the 
protection  of  the  right  to  be  heard;  established  good  conduct  principles  for 
administrative  hearings;  and  empowered  domestic  courts  to  ensure  the  legal 
accountability  of  the  executive  and  effective  remedies  for  third-country  nationals. 

* 

Director  of  the  Centre  for  Migration  Studies  at  the  Law  Faculty,  Masaryk 
University,  Czech  Republic,  and  Assistant  Professor  at  the  Centre  for  Judicial 
Cooperation  of  the  European  University  Institute.  The  author  would  like  to 
thank the Judicial Studies Institute members at the Masaryk University, Federica 
Casarosa, Jasper Krommendijk, Paola Pannia, Marcella Ferri, and the anonymous 
reviewers  for  their  valuable  comments.  This  research  was  supported  by  the 
project  'The  Role  of  Courts  in  Shaping  Migrants'  Rights'  MUNI/J/0815/2021 
funded  by  Masaryk  University  and  its  Research  Support  Programme  MUNI 
Award in Science and Humanities JUNIOR. 

EJLS Special Issue, May 2022, 21-61 

doi:10.2924/EJLS.2022.002 

 
 
 
 
22 

European Journal of Legal Studies  

{Special Issue 

Nevertheless, the domestic implementation of the right to be heard, as shaped by the 
CJEU, is still incoherent. 

Keywords:  Court  of  Justice  of  the  European  Union;  preliminary  reference 
procedure;  right  to  be  heard;  EU  Charter  of  Fundamental  Rights;  general 
principles of EU law; visas, asylum, immigration, return procedures; remedies 

TABLE OF CONTENTS 

I. INTRODUCTION: BACKGROUND TO THE INCREASING LITIGATION ON THE 

RIGHT TO BE HEARD BEFORE THE CJEU ........................................................ 23 

II. THE CJEU'S LEGISLATIVE GAP-FILLING ROLE: RECOGNISING NEW 

RIGHTS TO BE HEARD IN ASYLUM AND IMMIGRATION PROCEEDINGS...... 30 

III. THE CJEU SHAPING COMMON RULES FOR THE CONDUCT OF DOMESTIC 

ADMINISTRATIVE HEARINGS: INSTANCES OF CONSTITUTIONAL, ACTIVIST, 
AND DEFERENTIAL INTERPRETATION ........................................................... 38 

1. Oral or Written Administrative Hearings in ISD Proceedings?: Activist and 

Deferential Interpretations ...................................................................................... 39 

2. Judicial Shaping of the Adversarial Principle During Administrative Hearings: 

The Long-Awaited Constitutional Vision .............................................................. 42 

3. Towards a Pre-Determined Administrative Hearing Procedure: The CJEU's List 
of Questions to be Addressed during Administrative Hearings .............................. 45 

IV. REMEDIES FOR PROCEDURAL IRREGULARITIES IN ADMINISTRATIVE 

HEARINGS: TRACES OF CONSTITUTIONAL, ACTIVIST, AND DEFERENTIAL 
INTERPRETATION ............................................................................................. 49 

V. CONCLUSIONS: THE CJEU'S JUDICIAL SHAPING OF THE RIGHT TO BE 
HEARD - ACHIEVING A DELICATE BALANCE BETWEEN DIVERGENT 
INTERESTS? ......................................................................................................... 57 

 
 
 
2022} 

The CJEU Shaping the Right to Be Heard 

23 

I. INTRODUCTION: BACKGROUND TO THE INCREASING LITIGATION ON 
THE RIGHT TO BE HEARD BEFORE THE CJEU 

At  a  moment  when  the  reform  of  the  Common  European  Asylum  System 
(CEAS)1 and the Return Directive2 is in stalemate due to divergent domestic 
political interests, the judiciary, as politically neutral and impartial arbitrators 
between  human  rights  and  states'  migration  interests,  have  become  the 
forum of last resort for solving at least some of the many issues affecting the 
functioning of the CEAS. This article analyses a decade of jurisprudence of 
the CJEU to show how the Court has shaped asylum seekers' and immigrants' 
right to be heard and the impact of its judgments on domestic jurisprudence. 

These cases highlight some critical socio-legal realities. Notably, more and 
more  Member  States  have  limited  the  number  of  both  administrative  and 
judicial hearings in asylum and immigration proceedings before adopting an 
administrative decision that could negatively impact the rights of individuals3 
based on the rationale of migrants abusing rights and a governmental focus 
on  reducing  irregular  migration.4  In  addition  to  reducing  hearings  before 
administrative authorities and courts, a practice of de facto disregarding final 
judgments  that  were  enforcing  hearing  rights  has  developed  in  certain 
jurisdictions, further undermining asylum seekers' right to be heard.5 

1  

2 

3  

4  

5 

See  Commission,  'Communication  from  the  Commission  to  the  European 
Parliament, the Council, the European Economic and Social Committee and the 
Committee of the Regions on a New Pact on Migration and Asylum' COM (2020) 
609 final (2020 Pact on Asylum and Migration). 
Directive  2008/115/EC  of  the  European  Parliament  and  of  the  Council  of  16 
December  2008  on  Common  Standards  and  Procedures  in  Member  States  for 
Returning Illegally Staying Third-Country Nationals [2008] OJ L348/98 (Return 
Directive). 
See, for instance, Elisa Enrione, 'Domestic Asylum Procedures between EU Law 
and Populist Parties' Agenda: A Growing Challenge to A Growing Challenge to 
Asylum Seekers' Human Rights? The Cases of Italy, Sweden and the UK', Master 
Thesis 2019, 157 <https://unipd-centrodirittiumani.it/public/docs/Master_thesis 
_Elisa _Enrione.pdf> accessed 7 April 2022. 
Loïc Azoulai, 'Europe Is Trembling. Looking for a Safe Place in EU Law' (2020) 
57 Common Market Law Review 1675. 
See  Case  C–556/17  Toubarov  EU:C:2019:626.  On  Poland,  see  Monika  Szulecka, 
'The  Undermined  Role  of  (Domestic)  Case  Law  in  Shaping  the  Practice  of 

 
 
 
 
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European Journal of Legal Studies  

{Special Issue 

in  2017 

instance, 

the  European  Commission 

The  limitations  on  asylum  and  immigration  hearings  in  terms  of  quantity, 
length,  and  procedural  thoroughness  are  the  result  of  iterative  processes 
between the Member States' ministries of internal affairs and the European 
Commission, which already started to emerge in the aftermath of the refugee 
issued 
crisis.  For 
recommendations  to  the  Member  States  on  how  to  enhance  the  effective 
implementation of the Return Directive. One of the proposed solutions was 
a  new,  harmonised,  common  return  procedure  which  merges  the  hearing 
regarding  the  return  decision  with  that  related  to  the  asylum  claim.6  This 
recommendation was subsequently endorsed in a 2017 report of the European 
Migration Network (EMN) on effective returns,7 and later on codified by the 
proposal for an Asylum Procedures Regulation of the 2020 Pact on Asylum 
and Migration.8  

However,  this  effort  to  design  more  flexible  and  speedy  immigration 
proceedings  does  not  take  into  account  the  social  realities  of  asylum 
proceedings. In several jurisdictions, these can take at least 3 years,9 a period 
so long that changes in the security of the country of origin, or in the private 
and  family  life  or  health  of  the  third  country  national  might  occur  in  the 

6 

7 

8  

9  

Admitting Asylum Seekers in Poland' [2022] (special issue) European Journal of 
Legal Studies 171. 
Commission  Recommendation  (EU)  2017/432  of  7  March  2017  on  Making 
Returns  More  Effective  when  Implementing  the  Directive  2008/115/EC  of  the 
European Parliament and of the Council [2017] OJ L66/19, recommendation 12. 
European  Migration  Network,  The  Effectiveness  of  Return  in  EU  Member  States: 
Challenges  and  Good  Practices  Linked  to  EU  Rules  and  Standards  –  Synthesis  Report 
(European Migration Network 2017) (EMN 2017 Report on Effective Returns). 
The  EMN  is  composed  of  national  contact  points  appointed  by  national 
governments. 
Commission, 'Proposal for a Regulation of the European Parliament and of the 
Council Establishing a Common Procedure for International Protection in the 
Union  and  Repealing  Directive  2013/32/EU'  COM  (2016)  467  final,  arts  53,  54; 
Commission, 'Amended Proposal for a Regulation of the  European Parliament 
and  of  the  Council  Establishing  a  Common  Procedure  for  International 
Protection in the Union and Repealing Directive 2013/32/EU' COM (2020) 611 
final. 
See, for instance, the arguments of the Belgian governments in Case C-233/19 B v 
CPAS  de  Líège  EU:C:2020:397.  See  also  Case  C-756/21  International  Protection 
Appeals Tribunal and Others, pending. 

 
 
 
2022} 

The CJEU Shaping the Right to Be Heard 

25 

meantime. These changes, in turn, may justify an individual re-assessment of 
the legality of return. The separate hearing of asylum seekers and immigrants 
is thus essential for preventing violations of the principle of non-refoulement,10 
a  non-derogable  right,  particularly  when  the  return  proceedings  take  place 
long after the finalisation of asylum adjudication.11 Moreover, oral statements 
are  often  the  sole  evidentiary  proof  that  these  individuals'  narratives  are 
credible.12 In addition, in-person hearings help administrative authorities and 
courts to clarify the complex social, legal, and cultural circumstances on the 
basis of which the correct immigration status is determined.13  

The  essential  role  played  by  the  right  to  be  heard  in  immigration  status 
determination (ISD) proceedings has been recognised, to a certain extent, by 
EU  secondary  law,  which  requires  the  Member  States  to  provide  several 
guarantees:  a  mandatory  right  to  oral  hearing  by  the  administrative 
authorities assessing asylum claims;14 additional hearing guarantees for minor 
asylum seekers;15 a right to appeal negative asylum administrative decisions 
before  a  domestic  court;16  and  a  right  for  irregularly  staying  third-country 
nationals to appeal a return-related administrative decision before a court or 

10 

11 

12 

13 

14 

15 

16 

(MM 

Case  C-277/11  MM  v  Minister  for  Justice,  Equality  and  Law  Reform  and  Others 
EU:C:2012:253 
(1)),  Opinion  of  AG  Bot;  Case  C-585/16  Alheto 
EU:C:2018:584, paras 145-49; Case C-517/17 Addis EU:C:2020:225, Opinion of AG 
Hogan, para 74. 
See Charter of Fundamental Rights of the European Union [2012] OJ C326 (EU 
Charter), art 19(2). 
The asylum applicant is often not in possession of  documentary or testimonial 
sources  and  can  commonly  base  his  or  her  application  only  on  his  or  her  own 
statements.  See  UNHCR  Handbook  on  Procedures  and  Criteria  for  Determining 
Refugee Status under the 1951 Convention and the 1967 Protocol Relating to the Status of 
Refugees (UNHCR 1992). 
Nick Gill and Anthony Good (eds), Asylum Determination in Europe: Ethnographic 
Perspectives (Palgrave Macmillan 2019). 
Directive 2013/32/EU of the European Parliament and of the Council of 26 June 
2013  on  Common  Procedures  for  Granting  and  Withdrawing  International 
Protection [2013] OJ L180/60 (Recast Asylum Procedure Directive), art 14. 
See  Recast  Asylum  Procedure  Directive,  art  24;  Directive  2013/33/EU  of  the 
European Parliament and of the Council of 26 June 2013 Laying Down Standards 
for the Reception of Applicants for International Protection (Recast) [2013] OJ 
L180/96 (Recast Reception Conditions Directive), art 23. 
Recast Asylum Procedure Directive, art 46. 

 
 
 
 
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European Journal of Legal Studies  

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administrative authority.17 In addition, the right to be heard is recognised as 
part  of  various  fundamental  rights  enshrined  in  the  EU  Charter  of 
Fundamental Rights (EU Charter): the right to good administration (Article 
41(2)); the right to an effective judicial remedy (Article 47(2)); and the rights 
of the child (Article 24). It is also guaranteed as part of the general principles 
of EU law of good administration and rights of defence, and as part of the 
right  to  a  fair  trial  enshrined  in  Article  6  of  the  European  Convention  on 
Human Rights (ECHR).18 

This complex normative overlap of the various legal sources enshrining the 
right to be heard has raised questions of authority and conflict-resolution at 
the  national  level,19  which  have  been  answered  in  different  ways  by  the 
Member  States,  and  by  domestic  courts,  as  will  be  shown  below.  Heated 
political debate and judicial disagreements have developed within and across 
the  Member  States  about  the  number  of  necessary  hearings,  about  the 
timing,  content,  and  conduct  of  administrative  and  judicial  hearings,  and 
about  effective  remedies  in  immigration  procedures.  In  the  politically 
charged  context  of  prioritisation  of  irregular  migration  and  incoherent 
domestic jurisprudence, the CJEU's approach has been decisive in solidifying 
common outcomes, ensuring both effective implementation of EU law and 
the fulfilment of human rights obligations.  

Regarding  the  CJEU's  jurisprudence  on  the  right  to  be  heard,  the  few 
academics  who  have  approached  the  topic  have  classified  the  Court's 
judicial  activist,20  or  as  restrictive  or  idiosyncratic 
interpretation  as 

17 

18 

19 

20 

Return Directive, art 13. 
Bucura C Mihaescu Evans, 'I. "The Right to Be Heard" as a Sub-Component of 
Good Administration' in The Right to Good Administration at the Crossroads of the 
Various Sources of Fundamental Rights in the EU Integrated Administrative System (1st 
edn, Nomos 2015). 
This  falls  within  the  more  general  debate  on  normative  hierarchy  in  legal 
pluralism,  see  Kaarlo  Tuori,  'On  Legal  Hybrids  and  Perspectivism',  in  Miguel 
Maduro,  Kaarlo  Tuori  and  Suvi  Sankari  (eds),  Transnational  Law:  Rethinking 
European Law and Legal Thinking (Cambridge University Press 2014). 
Paul Craig, 'EU Administrative Law  -  The Acquis  European Parliament Study' 
(European Parliament 2010); Mihaescu Evans (n 18). 

 
 
 
2022} 

The CJEU Shaping the Right to Be Heard 

27 

interpretation.21  These  opinions  fit  into  the  wider  migration  scholarly 
debate,  where  competing  conceptions  have  developed  on  the  CJEU's  role: 
activist human rights interpretation;22 passive towards protecting migrants' 
rights;23  deferential  to  governmental  views;24  administrative  rather  than 
constitutional;25  or  judicially  autonomous  from  Member  States'  political 
preferences.26 This literature on the CJEU's role in asylum and migration has 
mostly overlooked the national context of the referrals for preliminary ruling, 
and  the  subsequent  implementation  of  the  CJEU's  preliminary  rulings,  or 
addressed  only  some  of  the  CJEU's  preliminary  rulings  on  the  right  to  be 
heard in asylum and immigration. In light of these sustained contestations 
and  the  limited  contextual  analysis  of  the  CJEU's  preliminary  rulings,  this 
article holistically analyses all of the Court's judgments27 on perhaps the most 

22 

21  Marie-Laure  Basilien-Gainche,  'Immigration  Detention  under  the  Return 
Directive: The CJEU Shadowed Lights' (2015) 17 European Journal of Migration 
and Law 104; Chiara Favilli, 'The Standard of Fundamental Rights Protection in 
the Field of Asylum: The Case of the Right to an Effective Remedy between EU 
Law and the Italian Constitution' (2019) 12 Review of European Administrative 
Law 167. 
Geert de Baere, 'The Court of Justice of the EU as a European and International 
Asylum  Court'  (2013)  Leuven  Centre  for  Global  Governance  Studies  Working 
Paper  No.  118;  Cathryn  Costello,  The  Human  Rights  of  Migrants  and  Refugees  in 
European  Law  (Oxford  University  Press  2015);  Andrew  Geddes  and  Peter 
Scholten, The Politics of Migration and Immigration in Europe (Sage 2016). 
Iris Goldner Lang, 'Towards "Judicial Passivism" in EU Migration and Asylum 
Law?' in Tamara Ćapeta, Iris Goldner Lang and Tamara Periš (eds), The Changing 
European Union: A  Critical View on the Role of Law and Courts (Hart Publishing, 
forthcoming in 2022). 
Lisa Heschl and Alma Stankovic, 'The Decline of Fundamental Rights in CJEU 
Jurisprudence  after  the  2015  "Refugee  Crisis"'  in  Wolfgang  Benedek,  Philip 
Czech, Lisa Heschl, Karin Lukas and Manfred Nowak (eds), European Yearbook on 
Human Rights (Intersentia 2018). 
'Between  "Administrative  Mindset"  and  "Constitutional 
Daniel  Thym, 
Imagination":  The  Role  of  the  Court  of  Justice  in  Immigration,  Asylum  and 
Border Control Policy' (2019) 44 European Law Review 139. 

24 

25 

23 

26  Marie De Somer, Precedents and Judicial Politics in EU Immigration Law (Springer 

27 

2018). 
That  is  from  January  2012,  when  the  CJEU  delivered  its  first  judgment  on  the 
right to be heard in asylum proceedings, and until September 2021 – the date this 
article was submitted. 

 
 
 
 
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European Journal of Legal Studies  

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essential  right  in  immigration  status  determination  (ISD)  proceedings:  the 
right  of  asylum  seekers,  returnees,  and  visa  applicants  to  be  heard  by 
administrative  authorities  and  courts  before  the  latter  adopt  decisions 
affecting their stay in the EU and fundamental rights.  

The article aims to establish how the CJEU has shaped the right to be heard, 
and  asks,  in  particular:  whether  the  CJEU's  conceptualisation  of  this  right 
tends  to  endorse  the  interpretation  put  forward  by  the  referring  courts  or 
that of the government of the referring state; whether the interpretation of 
the  right  to  be  heard  in  ISD  proceedings  is  similar  to  the  judicial 
interpretation  of  this  right  as  developed  in  other  public  law  fields;  and 
whether or not the CJEU's judgments enhance the level of protection of the 
right  to  be  heard  in  ISD  proceedings  as  stipulated  by  EU  secondary 
legislation. When assessing the shape given by the Court to the right to be 
heard,  the  article  takes  into  consideration  the  inherent  competence 
limitations  faced  by  the  CJEU  under  the  EU  law  principle  of  national 
procedural autonomy.28 The article also explores the outcome of preliminary 
rulings by the CJEU on the domestic jurisprudence of the countries in which 
the reference originated. 

Using  a  contextualist  approach,29  the  article  claims  that  the  CJEU's 
interpretation of the right to be heard does not conform to only one of the 

28 

29 

The CJEU has limited jurisdiction to establish remedies, only as required by the 
principles of equivalence, effectiveness and effective judicial protection, since the 
establishment of remedies falls under domestic competences. See Case C-33/76 
Rewe  EU:C:1976:188.  Additionally,  the  CJEU's  jurisdiction  depends  on  the 
national  courts  requesting  preliminary  rulings,  and  the  referral  behaviour  of 
national courts varies greatly. See Arthur Dyevre, Monika Glavina and Angelina 
Atanasova, 
'Who  Refers  Most?  Institutional  Incentives  and  Judicial 
Participation  in  the  Preliminary  Ruling  System'  (2020)  27  Journal  of  European 
Public Policy 912. 
This  means  assessing  the  CJEU's 
legal, 
jurisprudential and political context of the reference for a preliminary ruling; and 
tracing the impact of the CJEU judgments at the national level. The article builds 
on the contextualist approach as promoted by Eric Stein, 'Lawyers, Judges, and 
the  Making  of  a  Transnational  Constitution'  (1981)  75(1)  American  Journal  of 
International Law 1; Joseph Weiler, 'The Transformation of Europe' (1991) 100 
Yale  Law  Journal  2403;  Alec  Stone  Sweet,  The  Judicial  Construction  of  Europe 

judgments  within  the  national 

 
 
 
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The CJEU Shaping the Right to Be Heard 

29 

aforementioned judicial approaches, but rather that the Court has moved in 
different  directions,  displaying  traces  of  activist,  constitutional,  and 
restrictive  interpretation  in  its  judgments.  The  article  argues  that  judicial 
diplomacy is the overarching approach, whereby the CJEU shapes the right 
to be heard as a compromise between various conflicting domestic judicial 
preferences  without  fully  endorsing  the  interpretation  of  any  of  the  main 
actors involved in the preliminary reference procedure.30  

To  support  this  claim,  the  article  first  shows  how  the  CJEU  has  displayed 
activist and constitutional interpretations by recognising a new right to be 
heard for asylum seekers and returnees directly on the basis of the EU law 
general principle of the rights of defence and Article 47(2) of the EU Charter 
(section II). Next, the article illustrates a different form of judicial diplomacy, 
whereby the CJEU tempered its previous activist interpretation of the right 
to  be  heard  with  instances  of  deference  towards  national  discretion  in 
shaping  the  form  and  content  of  the  hearing  by  administrative  authorities 
(section  III).  Finally,  the  article  argues  that,  in  shaping  the  remedy  for 
violations of the EU fundamental right to be heard, the CJEU has exercised 
both  activist  interpretation  by  extending  the  judicial  review  powers  of 
national courts, but also restrictive interpretation as regards the burden of 
proof (section IV). In conclusion, the article argues that the CJEU has not 
only  shed  light  on  the  relationship  between  the  overlapping  norms  on  the 
right to be heard of asylum seekers, returnees, and visa applicants, but that it 
has also widened the scope of the right to be heard and added guarantees to 
those  that  already  exist  in  various  strands  of  EU  asylum  and  immigration 
secondary legislation on the basis of the general principle of rights of defence 
and Article 47 of the EU Charter. Nevertheless, various factors are identified 

(Oxford University Press 2004); Karen Alter, The European Court's Political Power 
(Oxford University Press 2009). 

30   Domestic  judgments  leading  up  to  the  reference  for  a  preliminary  ruling  and 
those implementing the CJEU preliminary rulings have been provided by judges 
and  lawyers  within  the  framework  of  the  framework  of  the  ACTIONES,  e-
NACT and ReJUS projects funded by the European Commission. Summaries of 
most of the individual judgments can be found in the following databases: 'CJC 
Database'  (EUI  Centre  for  Judicial  Cooperation)  <https://cjc.eui.eu/data/> 
accessed  7  April  2022;  'Database  Index'  (Re-Jus  Judicial  Training  Project) 
<https://www.rejus.eu/content/database-index> accessed 7 April 2022. 

 
 
 
 
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as  influencing  the  outcome  of  the  preliminary  ruling  on  domestic 
jurisprudence,  which  may  lead  to  further  jurisprudential  convergence  or 
divergence regarding the interpretation of the right to be heard.  

II. THE CJEU'S LEGISLATIVE GAP-FILLING ROLE: RECOGNISING NEW 
RIGHTS TO BE HEARD IN ASYLUM AND IMMIGRATION PROCEEDINGS 

The  organisation  of  hearings  by  administrative  authorities  during  ISD 
proceedings falls, in principle, under Member States' procedural autonomy.31 
This default principle has been interpreted by the Member States as allowing 
for broad limitations on the EU right to be heard in asylum and immigration 
proceedings. For instance, even if asylum seekers are conferred a right to be 
heard by administrative authorities,32 some Member States do not organise 
an administrative hearing when the asylum seeker is considered to come from 
a safe third country.33  

In immigration proceedings, the Return Directive allows Member States to 
merge the administrative decision regarding the legal status of third-country 
nationals  with  the  decision  to  return  those  whose  stay  was  found  to  be 
illegal.34 Some Member States take advantage of this procedural flexibility by 
issuing  a  single  decision  that  merges  several  ISD-related  decisions.  For 
example,  in  Hungary,  a  third-country  national  might  be  issued  a  single 
administrative  decision  combining  a  refusal  of  the  application  for 
international  protection,  a  return  or  removal  decision,  and  an  entry  ban.35 
While the combined procedure increases procedural efficiency, it might not 
ensure the right to be heard in relation to each of the legal statuses attributed 
to  a  third-country  national.  The  shortcomings  of  combining  immigration 
procedures  are  an  increased  risk  of  misqualification  of  legal  status  (e.g.  an 

31  
32 

33 

34 

35 

Case C-161/15 Bensada Benallal EU:C:2016:175, para 24. 
See Recast Asylum Procedure Directive, art 14. 
This  was  the  case  in  Germany  under  Recast  Asylum  Procedure  Directive,  art 
33(2)(a). See more in Addis (n 10). 
See Return Directive, art 6(6). 
See  Joined  Cases  C-924/19  PPU  and  C-925/19  PPU  FMS  and  Others 
EU:C:2020:294, Opinion of AG Pikamäe, para 77. 

 
 
 
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The CJEU Shaping the Right to Be Heard 

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asylum  seeker  might  be  considered  a  returnee),36  and  an  increased  risk  of 
violation of the principle of non-refoulement,37 as well as of other human rights 
such  as  the  right  to  private  and  family  life.38  Despite  these  shortcomings, 
more Member States39 have adopted the combined ISD procedure following 
the recommendation of the European Commission,40 based on the thinking 
that  multiple  hearings  are  merely  delaying  or  even  jeopardising  the 
finalisation  of  procedures.41  Furthermore,  the  2020  Pact  on  Asylum  and 
Migration  will  make  the  single,  combined  hearing  the  default  European 
model.42  

The CJEU has been the ultima ratio for defending the shrinking right to be 
heard of asylum seekers and immigrants. National courts from Ireland and 
France  have  asked  the  CJEU  whether  third-country  nationals  should  be 
afforded a right to be heard before assessing various different legal statuses (i.e. 
refugee, subsidiary protection, returnee), or whether the executive combined 
model of one hearing is in line with EU law requirements. In 2011, the Irish 
High Court asked the CJEU to settle judicial divergences in Ireland but also 

36 

37 

38 

39 

40 

41 

42 

European  Parliament  Study  on  The  Return  Directive  2008/115/EC,  European 
Implementation Assessment (20 June 2020) (EP Study 2020). 
See, for instance, the CJEU in Case C-249/13 Boudjlida CLI:EU:C:2014:2431, para 
68. 
Due  to  the  fact  that  third-country  nationals  do  not  have  the  opportunity  to 
inform about changes occurred in the private and family life, their health or the 
political situation of the country of origin or habitual residence as part of the right 
to be heard. See MM (1), Opinion of AG Bot (n 10), para 43; Case C-560/14 MM 
(2) EU:C:2016:320, Opinion of AG Mengozzi, paras 58-60. 
See the EMN 2017 Report on Effective Returns (n 7) section 6.4.  
See  Recommendation  12(a)  of  Commission  Recommendation  (EU)  2017/432 
(n 6). 
See Case C-166/13 Mukarubega EU:C:2014:2031, Opinion of AG Wathelet, para 
87;  the  governments'  observations  in  Boudjlida(n  37);  Case  C-181/16  Gnandi 
EU:C:2018:465. 
For  a  detailed  analysis,  see  Madalina  Moraru,  'The  New  Design  of  the  EU's 
Return  System  under  the  Pact  on  Asylum  and  Migration'  (EU  Migration  Law 
Blog,  14  January  2021)  <https://eumigrationlawblog.eu/the-new-design-of-the-
eus-return-system-under-the-pact-on-asylum-and-migration/>  accessed  7  April 
2022. 

 
 
 
 
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among  courts  from  different  Member  States43  regarding  the  number  of 
hearings  in  the  Irish  two-step  procedure  for  international  protection.  It 
asked whether asylum  seekers have a separate right to be heard before the 
assessment  of  their  subsidiary  protection  claim;44  and  whether  public 
authorities should disclose their intentions and evidence to asylum seekers.45 
In M.M.(1), the Court held that it is necessary for the applicant to be heard 
again  for  the  purpose  of  considering  his  or  her  application  for  subsidiary 
protection, and that the previous hearing for the purpose of refugee status 
determination is insufficient to fulfil the requirement of the EU fundamental 
right to be heard as protected by Article 41(2) of the EU Charter.46 This new 
right  to  be  heard  was  established  directly  on  the  basis  of  Article  41(2)  EU 
Charter,  thus  filling  a  gap  in  the  Qualification  Directive47  and  Irish 
implementing legislation.  

The referring court interpreted the CJEU's judgment as requiring Ireland to 
introduce a new right to an oral hearing before the administration adopts a 
decision on the claim for subsidiary protection. However, the CJEU did not 
refer expressis verbis to a right to an oral hearing, but only to the more general 
right  to  be  heard,  which  can  take  various  other  forms,  such  as  written 
statements.  The  expansive  interpretation  of  the  referring  court  sparked  a 

43 

44 

45 

46 

47 

The Irish High Court was of a different opinion than the Dutch Council of State. 
Compare,  for  instance,  Ahmed  v  Minister  for  Justice,  Equality  and  Law  Reform 
[2011] IEHC 560 with the Dutch Council of State jurisprudence from 2007. For 
an analysis, see Madalina Moraru, Rejus Casebook – Effective Justice in Asylum and 
Immigration  (University  of  Trento  2018)  66  <https://www.rejus.eu/sites/default/ 
files/content/materials/rejus_casebook_effective_justice_in_asylum_and_immig
ration.pdf> accessed 7 April 2022 (ReJus Casebook). 
The Irish High Court did not address this precise question. See more in Jasper 
Krommendijk, 'Irish Courts and the European Court of Justice: Explaining the 
Surprising Move from an Island Mentality to Enthusiastic Engagement' (2020) 2 
European Papers 825. 
Case  C-277/11  MM  v  Minister  for  Justice,  Equality  and  Law  Reform  and  Others 
EU:C:2012:744, para 55 (MM (1)). 
Ibid para 90. 
Council Directive 2004/83/EC of 29 April 2004 on Minimum Standards for the 
Qualification  and  Status  of  Third-Country  Nationals  or  Stateless  Persons  as 
Refugees or as Persons who  Otherwise Need International Protection and the 
Content of the Protection Granted [2004] OJ L304/12 (Qualification Directive). 

 
 
 
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The CJEU Shaping the Right to Be Heard 

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new  round  of requests for a preliminary ruling at the initiative  of the Irish 
Supreme  Court.48  This  time,  the  CJEU  was  asked  whether  its  previous 
finding of a right to a separate hearing in M.M.(1) implied a right to an oral 
hearing before the assessment of the subsidiary protection claim. The CJEU 
rejected this interpretation of the right to be heard in M.M.(2), but the Court 
nevertheless confirmed the obligation to ensure the right of asylum seekers 
to be heard within the procedure assessing the subsidiary protection claim 
separately from the refugee status procedure. 

Following this back-and-forth between the Irish courts and the CJEU, the 
Irish  legislator  decided  to  change  its  two-step  procedure  for  international 
protection  to the single-step approach followed by most Member States.49 
While  one  might  thus  think  that  the  intense  judicial  interaction  has 
strengthened the protection of the right to be heard, in practice, the new one-
step approach has actually eased the Irish government's procedural tasks. It 
is thus no longer required to organise two separate hearings, but only one oral 
hearing to assess both refugee and subsidiary protection status.50  

The  M.M.(1)  preliminary  ruling  provoked  a  snowball  of  horizontal  and 
vertical judicial interactions that allowed the CJEU to continue shaping the 
EU  fundamental  right  to  be  heard  across  different  phases  of  the  ISD 
proceedings,  and  across  Member  States  with  diverse  hearing  systems.  For 
instance,  the  M.M.(1)  preliminary  ruling  was  interpreted  by  some  of  the 
French first instance administrative courts as requiring an obligation on the 
Prefecture  to  hear  a  third-country  national  not  only  in  the  context  of  the 
rejection  of  a  residence  permit,  but  also  to  make  a  return  decision.51  This 
judicial  interpretation  introducing  a  mandatory  additional  hearing  was 
contrary  to  the  case-by-case  view  of  hierarchically  superior  French 

48 

49 

50 

51 

C-560/14 M v Minister for Justice and Equality EU:C:2017:101 (MM (2)). 
Irish International Protection Act 2015 of 30 December 2015. See more in ReJus 
Casebook (n 43) 70. 
Starting in 2016, the Irish International Protection Act replaced the dual system 
with a single procedure for assessing asylum and subsidiary protection claims in 
parallel. See above (n 49). 
Brigitte Jeannot, 'Le droit d'être entendu : une application décevante en droit des 
étrangers' (Syndicat des Avocats de France,  October 2015) <http://lesaf.org/wp-
content/uploads/2016/03/4-droit-des-etrangers-octobre-2015.pdf>  accessed  5 
May 2022. 

 
 
 
 
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administrative courts.52 Since the administrative tribunals did not convince 
the courts of appeal of their interpretation of the right to be heard based on 
the M.M.(1) preliminary ruling,53 the administrative Tribunals of Melun54 and 
Pau55 asked the CJEU to confirm their interpretation of the EU fundamental 
right to be heard. The purpose of the referral was thus to obtain the CJEU's 
endorsement  of  a  national  judicial  interpretation  divergent  from  the  more 
restrictive interpretation of the right to be heard supported by the executive 
and hierarchically superior courts.56 

52 

53 

54 

55 

56  

Such  as:  courts  of  appeal  and  the  French  Council  of  State.  Courts  of  appeal 
recognised a certain margin of discretion to national (administrative and judicial) 
authorities to decide on a case-by-case basis whether or not to hear third-country 
nationals  in  return-related  cases.  See  Administrative  Court  of  Appeal  of  Lyon, 
Préfet de l'Ain v Luc BG, n°12LY0273, 14 March 2013. For a commentary on this 
approach  see,  Marc  Clement,  'Droit  d'être  entendu,  droit  de  la  défense  et 
obligation de quitter le territoire : à propos de l'arrêt CAA Lyon du 14 mars 2013' 
(ELSJ,  29  April  2013)  <http://www.gdr-elsj.eu/2013/04/29/asile/droit-detre-
entendu-droit-de-la-defense-et-obligation-de-quitter-le-territoire-a-propos-de-
larret-caa-lyon-du-14-mars-2013-m/>  accessed  7  April  2022.  From  1991,  the 
Council  of  State  followed  a  restrictive  interpretation  of  rights  of  defence  in 
immigration  proceedings,  whereby  it  excluded  the  application  of  EU  general 
principles of law to expulsion cases and exempted the administration from a prior 
adversary procedure in immigration cases; see Council of State, Préfet de Police v. 
Demir, n°120435, 19 April 1991; CE, Hammou n° 306821-30682, 19 October 2007; 
Barjamaj, n° 307999, 28 November 2007; Silidor, n° 315441, 26 November 2008. 
The French administrative courts of appeal had not considered it useful to submit 
a preliminary question following the judgment of the Lyon Administrative Court 
of 14 March 2013. See CAA Lyon 14 March 2013, M Halifa, n° 12LY02704; CAA 
Lyon  14  March  2013,  Préfet  de  l'Ain  c/  M  Bepede  Guehoada,  n°  12LY02737  – 
12LY02739; CAA Nancy 16 May 2013, n° 12NC01805; CAA Marseille 8 June 2013, 
n° 12MA04450. 
The referring court in Case C-166/13 Mukarubega EU:C:2014:2336. 
The referring court in Boudjlida (n 37). 
For  a  similar  judicial  strategy  of  involving  the  CJEU,  see  the  approach  of  the 
Czech  Supreme  Administrative  Court  in  Al  Chodor  case,  No.  29/2015/SZD/LJ 
(Case C-528/15 Al Chodor EU:C:2017:213). For a detailed analysis of the strategy 
see  Madalina  Moraru  and  Linda  Janku,  'Czech  Litigation  on  Systematic 
Detention of Asylum Seekers: Ripple Effects across Europe' (2021) 23 European 
Journal of Migration and Law 284. 

 
 
 
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The CJEU Shaping the Right to Be Heard 

35 

In Mukarubega  and Boudjlida, the CJEU did not fully endorse the referring 
court's  interpretation.  The  Court  held  that,  in  principle,  a  third-country 
national should be heard before any individual measure is taken that adversely 
affects him or her.57 However, where national authorities have exercised the 
margin of discretion to simultaneously adopt a decision determining a stay to 
be illegal and a return decision, as afforded to them by the Return Directive,58 
'those authorities need not necessarily hear the person concerned specifically 
on  the  return  decision'.59  Nevertheless,  the  CJEU  established  clear 
requirements that national administrations must fulfil before they decide to 
skip a second hearing, namely:  

that [a] person had the opportunity to effectively present his or her point of 
view on the question of whether the stay was illegal, and whether there were 
grounds which could, under national law, entitle those authorities to refrain 
from adopting a return decision,60  

either because of errors in assessment or because of new evidence.61 As long 
as public authorities comply with the substantive content of the right to be 
heard,  its  procedural  design  –  whether  in  the  shape  of  one  or  multiple 
hearings  –  was  left  to  the  Member  States'  decision,  just  as  the  Return 
Directive had envisaged.  

The CJEU thus initially displayed a judicial activist approach by recognising 
a new right to be heard to returnees on the basis of the EU general principle 
of  rights  of  defence,  which  was  then  tempered  by  a  deferential  approach 
towards Member States' policy choices as guaranteed under Article 6(6) of 
the  Return  Directive.  Therefore,  the  Mukarubega  case  represents  a  partial 
success of the referring court to impose its interpretation over hierarchically 
superior  courts:  the  CJEU's  preliminary  ruling  did  invalidate  the  French 
Council  of  State's  restrictive  interpretation.62  However,  the  case-by-case 

57 

58 

59 

60 

61 

62 

Case C-349/07 Sopropé EU:C:2008:746, para 49; Mukarubega (n 54) paras 46-48. 
See Return Directive, art 6(6). 
See Boudjlida (n 37) para 54 (also stated in Mukarubega (n 54) para 60). 
Ibid. 
Boudjlida (n 37) para 37. 
That is, of automatic rejection of an administrative hearing before the adoption 
of a return decision. See n 48. 

 
 
 
 
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approach  followed  by  the  majority  of  French  courts  of  appeal63  was 
legitimised over the mandatory hearing approach proposed by the referring 
first instance administrative courts.    

from  Belgium,64  Greece,65  Lithuania,66  and 

the 
Domestic  courts 
Netherlands67  subsequently  used  the  preliminary  rulings  on  the  French 
references  to  expand  the  scope  of  the  right  to  be  heard  in  domestic  ISD 
proceedings. These courts interpreted the preliminary rulings as requiring a 
mandatory  administrative  hearing  in  relation  to  each  of  the  return-related 
decisions the administration can adopt, regardless of whether the domestic 
return procedure is combined or separate. Exceptions would be allowed only 
if  they  conform  to  the  good  administration  principles  of  clarity, 
foreseeability,  and  transparency  in  administrative  decision-making.  While 
these courts have not engaged in direct dialogue with the CJEU, their citation 
of  preliminary  rulings  originating  in  other  jurisdictions  has  nevertheless 
helped to enhance the protection of the right to be heard. For instance, in 
Belgium,  the  Aliens  Office  began  to  send  a  formal  letter  to  invite  foreign 
nationals to express their views before withdrawing their right to stay.68 

In terms of fundamental rights protection, the continuous judicial dialogue 
with domestic courts has helped the CJEU to refine its position on the legal 
source  for  the  asylum  seekers'  and  irregular  migrants'  right  to  be  heard  by 

63  Whereby the necessity of a second administrative hearing is to be established on 

64 

65 

66 

67 

68 

a case-by-case basis. 
Belgian Council of Alien Law Litigation (CALL), case No 126.219, judgment of 25 
June 2014; CALL, case No. 230.293, judgment of 24 February 2015;  CALL, case 
No  233.257  judgment  of  15  December  2015.  These  cases  are  summarised  in  the 
REDIAL database. 'REturn Diretive DIALogue (European University Institute) 
<euredial.eu> accessed 7 April 2022. 
See, for instance, Thessaloniki Administrative Court, case No 717/2015. 
Case  No eA-2266-858/2015  of  7  July  2015.  For  a  commentary,  see  Irmantas 
Jarukaitis  and  Agnė  Kalinauskaitė,  'The  Administrative  Judge  as  a  Detention 
Judge:  The  Case  of  Lithuania',  in  Madalina  Moraru,  Galina  Cornelisse  and 
Philippe  de  Bruycker  (eds)  Law  and  Judicial  Dialogue  on  the  Return  of  Irregular 
Migration from the European Union (Hart 2020) 237. 
See Madalina Moraru and Geraldine Renaudiere, 'European Synthesis Report on 
the Judicial Implementation of Chapter III of the Return Directive Procedural 
safeguards', Migration Policy Centre Redial Research Report 2016/03, 11-13. 
Ibid. 

 
 
 
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domestic authorities. After a Charter activist phase,69 the Court reverted to 
the  general  principle  of  the  rights  of  defence  as  legal  source  for  the 
application  of  the  right  to  be  heard  in  domestic  asylum  and  immigration 
procedures.  The  right  to  be  heard  in  migration  proceedings  thus  follows 
other  fields  of  EU  administrative  law,  such  as  customs,  competition,  and 
terrorism-related sanctions.70 As regards the level of protection of the right 
to  be  heard  conferred  by  Article  41(2)  of  the  EU  Charter  and  the  general 
principle  of  rights  of  defence,  the  Court  seems  to  recognise  a  functional 
equivalence of the two legal sources.71 Notably, the Court held that the 'right 
must  apply  in  all  proceedings  which  are  liable  to  culminate  in  a  measure 
adversely affecting a person'.72 Furthermore, the observance of the right to be 
heard is required even where the applicable EU secondary legislation does not 
expressly call for it.73 

In  conclusion,  the  jurisprudence  analysed  in  this  section  shows,  first,  an 
activist  CJEU  which  has  recognised  a  new  right  to  be  heard  before  public 
authorities adopt decisions negatively affecting the rights of asylum seekers 
and  returnees  during  ISD  proceedings.  This  apparent  judicial  activism, 
however, has a constitutional legal basis in the CJEU's role of reviewing the 
legislative  acts74  and  their  domestic 
conformity  of  EU  secondary 
implementation75  with  fundamental  rights  as  guaranteed  by  general 

69 

70 

71 

72 

73 

74 

75 

In  the  first  preliminary  rulings  on  the  right  to  be  heard,  the  CJEU  cited  EU 
Charter  (n 11),  art  41(2)  as  legal  basis.  See  MM  (1)  (n  45);  Case  C-604/02  HN 
EU:C:2014:302 (on the more general right to good administration). 
Angela Ferrari Zumbini, 'The Power to Tax without Due Process of Law' (2019) 
11 Italian Journal of Public Law 119. 
Of the same opinion, see also French Council of State, Ouda, n°375423, 5 June 2015; 
Evangelia Lilian Tsourdi, 'Of Legislative Waves and Case Law: Effective Judicial 
Protection,  Right  to  an  Effective  Remedy  and  Proceduralisation  in  the  EU 
Asylum Policy' (2019) 12(2) Review of European Administrative Law 143. 
See,  inter  alia,  Case  17/74  Transocean  Marine  Paint  Association  v  Commission 
EU:C:1974:106, para 15; Case C-7/98 Krombach EU:C:2000:164, para 42; Case C-
249/07 Sopropé EU:C:2008:746, para 36. 
Sopropé (n 72) para 38. 
Consolidated Version of the Treaty on the Functioning of the European Union 
[2013] OJ C326, art 263. 
Ibid arts 260, 267. 

 
 
 
 
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principles  of  EU  law  and  the  EU  Charter.76  As  regards  the  multi-layered 
overlapping  sources  of  the  right  to  be  heard,  the  CJEU  has  brought  legal 
clarity to the scope of application of the right to be heard by piecing together 
the  relevant  EU  Charter  provisions  and  the  general  principles  of  rights  of 
defence  and  good  administration  in  a  perfectly  matching  puzzle.  In  its 
constitutional  role,  the  CJEU  requires  domestic  authorities  to  ensure  the 
safeguards  on  the  right  to  be  heard,  irrespective  of  the  form  of  the 
administrative hearings. At the same time, the CJEU displayed a deferential 
side by recognising the Member States' procedural freedom to decide on the 
form of hearing as long as they guarantee the right to be heard. In a nutshell, 
the CJEU's shaping of the scope of application of the right to be heard thus 
represents  a  compromise  between  Member  State  authorities'  different 
conceptions of procedural fundamental rights. 

III. THE CJEU SHAPING COMMON RULES FOR THE CONDUCT OF 
DOMESTIC ADMINISTRATIVE HEARINGS: INSTANCES OF 
CONSTITUTIONAL, ACTIVIST, AND DEFERENTIAL INTERPRETATION 

The previous section has shown a particular instance of the CJEU's judicial 
diplomacy,  one  that  combines  constitutional  thinking,  that  is  recognising 
new rights to be heard on the basis of general principles of EU law, with  a 
deferential interpretation which has allowed Member States to continue the 
one-hearing practice in narrow and limited situations.  

In  practice,  however,  the  national  discretion  confirmed  by  the  CJEU, 
whereby various administrative hearings can be merged into one, has resulted 
in the blurring of the domestic duties of good administration and in a lower 
level  of  protection  of  the  principle  of  non-refoulement.  Several  reports77  and 
scholars78 note how the merged administrative hearing practice did not result 
in  full  incorporation  of  the  right  to  be  heard  guarantees.  For  instance, 
Member  States  do  not  regularly  impose  a  duty  on  the  administration  to 

76 

77 

78 

As established by Case C-11/70 Internationale Handelsgesellschaft EU:C:1970:114. 
EMN 2017 Report on Effective Returns (n 7); EP Study 2020 (n 36). 
Valeria  Ilareva  'The  Right  to  be  Heard:  The  Underestimated  Condition  for 
Effective Returns and Human Rights Consideration' in Madalina Moraru, Galina 
Cornelisse and Philippe de Bruycker (eds), Law and Judicial Dialogue on the Return 
of Irregular Migration from the European Union (Hart 2020) 351. 

 
 
 
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The CJEU Shaping the Right to Be Heard 

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conduct  an  ex  officio  assessment  of  the  risk  of  refoulement  outside  the  rigid 
limits  of  international  protection  claims  assessed  under  the  Qualification 
Directive,79 although other circumstances could also trigger violations of the 
principle of non-refoulement.80  

This  section  will  show  that,  following  several  preliminary  references,  the 
CJEU has developed common rules on the content of the hearing, that is the 
questions  to  be  addressed  and  avoided  as  well  as  the  circumstances  to  be 
assessed during administrative hearings, and the form of the administrative 
hearing, in particular its orality and adversarial nature.  

1.  Oral  or  Written  Administrative  Hearings  in  ISD  Proceedings?:  Activist  and 
Deferential Interpretations 

EU  secondary  law  on  asylum  and  immigration  does  not  impose  a  common 
format  for  administrative  hearings  throughout  ISD  proceedings.  Falling 
under  the  purview  of  the  Member  States'  procedural  autonomy,  domestic 
administrative hearings can be organised in the format of an oral interview,81 
or  an  assessment  of  written  observations.  In  asylum  and  immigration 
procedures, where the applicant's statements play a central role and where it 
is often impossible to provide documentary evidence, practitioners underline 
the importance of a personal hearing to verify the consistency, plausibility, 
completeness, and exhaustiveness of an individual's narrative, which together 
determine the credibility of the claim.82 Although an oral hearing has been 
held to be the fullest possible expression of the right to be heard in asylum 
adjudication,83 the use of other hearing formats, especially within subsequent 

79 

80 

81 

82 

83 

See more in EP Study 2020 (n 36) 50-53. 
See for instance the CJEU conclusions in Boudjlida (n 37) para 68. See also Case 
C-562/13 Abdida EU:C:2014:2453; Case C-239/14 Tall EU:C:2015:824. 
The only exception is the first administrative hearing during asylum adjudication, 
which has to be in an oral format (i.e. interview). See Recast Asylum Procedure 
Directive, art 14(1).  
Joined Cases C-148/13, C-149/13 and C-150/13 A, B and C EU:C:2014:2111, Opinion 
of  AG  Sharpston,  para  68;  MM  (2),  Opinion  of  AG  Mengozzi  (n  38);  Luciana 
Breggia, 'L'audizione Del Richiedente Asilo Dinanzi al Giudice: La Lingua Del 
Diritto Oltre i Criteri Di Sintesi e Chiarezza' [2018] Questione Giustizia 193; Gill 
and Good (n 13).  
See MM (2), Opinion of AG Menozzi (n 38) para 58. 

 
 
 
 
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ISD  proceedings  such  as  subsidiary  protection  or  return  procedures,  has 
proliferated throughout Europe in pursuit of procedural efficiency.84  

National  courts  confronted  the  technical  question  of  establishing  the 
conditions under which an oral administrative hearing is mandatory against 
the backdrop of divergent Member State approaches. The issue of protecting 
the orality of hearings arose in proceedings where an individual had already 
been heard once by administrative authorities, but a new administrative oral 
hearing was requested in relation to a subsequent and different immigration 
procedure (e.g. subsidiary protection or return). 

Conflicting  domestic  judicial  views  on  whether  an  administrative  hearing 
should  be  organised  in  an  oral  or  written  format  triggered  a  request  for  a 
preliminary  ruling.  The  Irish  Supreme  Court,  disagreeing  with  the 
interpretation of the M.M.(1) preliminary ruling by the High Court,85 asked 
the CJEU to clarify whether its ruling implied that only oral hearings could 
completely  fulfil  the  right  to  be  heard.86  In  M.M.(1),  the  CJEU  did  not 
expressly  require  the  administrative  hearing  before  the  assessment  of 
subsidiary  protection  to  be  held  in  an  oral  format,  but  only  ruled  that  a 
separate right to be heard should be recognised.87 The CJEU continued this 
line  of  functional  interpretation  of  the  right  to  be  heard  in  M.M.(2).88 
Notably,  the  CJEU  accepted  written  observations 
in  a  template 
questionnaire as potentially a sufficient guarantee for the protection of the 
right  to  be  heard  in  the  Irish  two-step  system  of  international  protection. 
Diverging from the Opinion of the Advocate General,89 the Court held that 
the personal interview conducted during the context of an asylum application 

84 

85 

86 

87 

88 

89 

For more details, see the EMN 2017 Report on Effective Returns (n 7). 
See MM v Minister for Justice [2013]IEHC 9. For a full summary, see 'Ireland, M v 
Minister  for  Justice  and  Equality,  (C-277/11  and  C-560/14)'  (EUI  Centre  for 
Judicial  Cooperation) 
<https://cjc.eui.eu/data/data/data?idPermanent=350> 
accessed 7 April 2022. 
The previous section discussed the MM (1) and MM (2) only from the perspective 
of  the  CJEU  recognising  a  right  to  be  heard  in  addition  to  the  EU  secondary 
norms on asylum, whereas this section discusses these two judgments from the 
perspective of the format of the hearing, that is oral versus written. 
See MM (1) (n 45) para 95. 
See MM (2) ( n 48) para 28. 
See MM (2), Opinion of AG Mengozzi (n 38) para 58. 

 
 
 
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could be relevant and, thus, used in the context of a subsequent application 
for subsidiary protection. 

Nevertheless, the CJEU required that an  

interview must also be arranged if it is apparent — in light of the personal or 
general circumstances in which the application for subsidiary protection has 
been made, in particular any specific vulnerability of the applicant, due for 
example to his age, state of health or the fact that he has been subjected to 
serious forms of violence — that [an interview] is necessary in order to allow 
him  to  comment  in  full  and  coherently  on  the  elements  capable  of 
substantiating that application.90 

In  conclusion,  the  CJEU  established  that  for  those  who  need  it  most  – 
vulnerable groups of asylum seekers and immigrants – the right to be heard 
should  commonly  be  interpreted  as  implying  a  right  to  an  oral  hearing. 
Furthermore, it clarified that administrative hearings may be conducted in 
written  format  as  long  as  they  can  guarantee  the  principle  of  individual 
assessment  required  by  Article  4(3)  of  the  Qualification  Directive.91  Once 
again,  the  CJEU  signalled  that  national  procedural  autonomy  cannot  be 
absolute,  instead  limitations  are  imposed  by  the  right  to  an  individual 
hearing. The CJEU's diplomatic attempt at conflict resolution by prioritising 
only some asylum seekers and immigrants as deserving of a right to an oral 
its  definition  of 
hearing  raises 
'vulnerability'.  Whereas  the  ECtHR  looks  at  all  asylum  seekers  as 
'vulnerable',92  the  CJEU  seems  to  consider  'vulnerable'  only  those  asylum 
seekers with special needs. 

issues  regarding  the 

legitimacy  of 

90 

91 

92 

See MM (2) (n 48) para 51. 
For  a  confirmation  of  the  mandatory  nature  of  the  principle  of  individual 
assessment in relation of administrative hearings of asylum seekers, even those 
coming from a 'safe third country'. See Joined Cases C-297/17, C-318/17, C-319/17 
and C-438/17 Ibrahim EU:C:2019:219, para 98. 
See Tarakhel v Switzerland App No 29217/12 (ECtHR, 4 November 2014; Moritz 
Baumgärtel,  'Facing  the  Challenge  of  Migratory  Vulnerability  in  the  European 
Court of Human Rights' (2020) 38 Netherlands Quarterly of Human Rights 12. 

 
 
 
 
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 2. Judicial Shaping of the Adversarial Principle During Administrative Hearings: 
The Long-Awaited Constitutional Vision 

ISD  proceedings  are  a  hybrid  adjudication  process 
involving  both 
administrative and judicial bodies, where the judiciary exercises a supervisory 
function vis-à-vis the administration following an appeal lodged by the third-
country  national.  Certain  characteristics  of  administrative  adjudication  in 
these  proceedings93  have  prompted  questions  about  the  extent  to  which 
administrative hearings should follow the fair trial guarantees applicable to 
judicial hearings, such as the adversarial principle.94 Domestic courts noticed 
that  in  other  administrative  law  fields  (e.g.  competition  law  and  smart 
sanctions), the CJEU recognised that certain components of the adversarial 
principle should also apply to administrative hearings. For instance, a person 
adversely affected by an individual measure must be placed in a position to 
analyse all relevant information relied on against them,95 and the individual 
must  have  the  opportunity  to  express  their  views96  following  a  period  of 
reflection  which  is  sufficient,  but  which  also  allows  the  administrative 
authority  to  act  effectively.97  Furthermore,  if  necessary,  the  aid  of  a  legal 
counsel should be available during the administrative phase of adjudication.98  

Following a request for preliminary ruling from a French first instance court, 
the  CJEU  had  the  opportunity  to  confirm  whether  the  safeguards  of  the 
adversarial  principle  should  apply  cross-sectorially.99  Mr  Boudjlida 
complained of a lack of opportunity to effectively express his point of view 

93 

94 

95 

96 

97 

98 

99 

Such as: the mandatory nature of administrative adjudication, unlike the judicial 
phase; the wide fact-finding powers of the administration; and the binding legal 
force of their decision, which can be final if it is not appealed before the courts, 
and result in decisions which can breach the principle of non-refoulement. 
The CJEU defined the adversarial principle as the principle according to which 
'the  parties  to  a  case  must  have  the  right  to  examine  all  the  documents  or 
observations submitted to the court for the purpose of influencing its decision, 
and to comment on them'. See Case C-300/11 ZZ v Secretary of State for the Home 
Department EU:C:2013:363, para 54. 
Joined  Cases  C-100/80 
Others v Commission EU:C:1983:158, paras 14-23. 
Joined Cases C-46/87 and 227/88 Hoechst v Commission EU:C:1989:337, paras 52, 56. 
Case C-28/05 Dokter and Others EU:C:2006:408, paras 73-79. 
See Hoechst (n 96) paras 14-16. 
Boudjlida (n 37). 

103/80  Musique  Diffusion 

française  and 

to 

 
 
 
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regarding  his  legal  status  before  the  Prefect  adopted  a  return  decision.  In 
particular,  he  complained  that  the  administration  did  not  disclose  the 
evidence held against him, did not offer a sufficient period of reflection to 
prepare for the interview, and that he did not benefit from the assistance of a 
legal counsel. 

Based  on  the  different  aims  pursued  by  administrative  proceedings  in 
competition  versus  asylum  and  immigration,  the  CJEU  rejected  the  full 
application  of  the  adversarial  principle  as  part  of  the  right  to  be  heard  in 
return  proceedings.  The  following  components  of  the  adversarial  principle 
were rejected by the Court: the right to call and cross-examine witnesses;100 
to be warned, prior to the interview, that the administration is contemplating 
adopting  a  return  decision;  to  have  access  to  information  on  the  basis  of 
which the administration depends for justification for that decision; and to 
be given a period of reflection.101 Nevertheless, the CJEU did recognise some 
of  the  guarantees  of  the  adversarial  principle  as  applicable  in  ISD 
proceedings.  Notably,  the  third-country  national  has  the  right  to  be 
informed,  before  the  administrative  hearing,  of  the  objective(s)  of  the 
interview,  and  of  the  possible  consequences  for  the  legal  status  of  the 
individual.102 In addition, the CJEU also recognised the right to use assistance 
provided  by  a  defender  or  legal  counsel  during  the  administrative  phase  of 
return procedures, even if only at the individual's own expense.103  

The  CJEU's  restricted  acknowledgement  of  the  applicability  of  the 
adversarial principle in ISD proceedings did not lead to a general lowering of 
the  standards  surrounding  the  right  to  be  heard  at  the  national  level.  For 
instance,  the  Irish  legislator  adopted  a  legislative  amendment  (operative 
from 24 November 2013) enhancing the adversarial principle in the context 
of  subsidiary  protection  procedures.104  The  following  rights  of  asylum 
seekers  were  thus  recognised  by  the  Irish  legislator:  to  be  informed  of  any 
recommendations  to  grant  or  refuse  subsidiary  protection;  to  be  sent  any 

100  MM (2) (n 48) para 55. 
101 
Boudjlida (n 37) para 55. 
Ibid para 62. 
Ibid. 

102 

103 

104   ReJus Casebook (n 43) 70. 

 
 
 
 
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supporting documentation; and the right to request an oral hearing and to call 
witnesses upon appeal.105 

The approach of the CJEU to the application of the adversarial principle in 
regular asylum and return proceedings106 should be differentiated from the 
Court's approach in cases where denial of a legal status was based on threats 
to national security or public policy. In this latter category of cases, the Court 
has  recognised  a  high  threshold  of  disclosure  of  evidence  by  the  public 
authorities,  similar  to  competition  and  'smart  sanctions'  cases.  In  ZZ,  the 
CJEU  held  that  an  individual  holding  both  EU  citizenship  and  a  third 
country's nationality 

must be informed of the essence of the grounds on which a decision refusing 
entry taken under Article 27 of Directive 2004/38 is based, as the necessary 
protection  of  State  security  cannot  have  the  effect  of  denying  the  person 
concerned  his  right  to  be  heard  and,  therefore,  of  rendering  his  right  of 
redress ineffective.107  

The  application  of  this  threshold  of  evidence  disclosure  in  cases  falling 
outside  the  ambit  of  EU  citizenship  has  long  been  the  subject  of  cross-
nationally  divergent  jurisprudence.108  Recently,  the  CJEU  clarified  that  its 
interpretation of the obligation of disclosure of evidence developed in the ZZ 
case also applies in the field of the common visa policy.109 Notably, the right 
to  good  administration,  as  a  general  principle  of  EU  law,  requires  the 
administration  to  give  reasons  for  its  decisions  refusing  a  visa  application 
based on Article 32(1)(a)(vi) grounds of the Visa Code.110 In addition, the right 
to  an  effective  remedy  laid  down  in  Article 47  of  the  EU  Charter  requires 
public authorities to disclose evidence to the extent that the concerned visa 
applicant  must  be  able:  (i)  to  ascertain  the  specific  grounds  on  which  the 

105 

106 

107 

108 

109 

110 

Ibid. 
As in Boudjlida (n 37) and MM (2) (n 48). 
ZZ (n 94) para 63. 
For instance, the UK and Polish Supreme Administrative Court did not expand 
the ZZ principles outside EU citizenship related cases. See ReJus Casebook (n 43) 
140-47. 
Joined Cases C-225/19 and C-226/19 RNNS and KA EU:C:2020:951. 
Regulation (EC) No 810/2009 of 13 July 2009 establishing a Community Code on 
Visas  [2009]  OJ  L243/1,  as  amended  by  Regulation  (EU)  No  610/2013  of  the 
European Parliament and of the Council [2013] OJ L243/1. 

 
 
 
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refusal is based; and (ii) to identify the Member States that objected to the 
application. In line with the judgment delivered by the ECtHR111 one month 
before  the  aforementioned  R.N.N.S  and  K.A  case,  the  CJEU  developed  a 
constitutional  view  of  a  common  principle  of  audiatur  et  altera  pars  which 
applies to all cases where the legal status of an individual is rejected or denied 
based on threats to public policy or national security.  

3. Towards a Pre-Determined Administrative Hearing Procedure: The CJEU's List 
of Questions to be Addressed during Administrative Hearings 

In a series of preliminary rulings starting with the M.M.(1) case, the CJEU has 
clarified that administrative and judicial authorities have both positive and 
negative  obligations  regarding  the  questions  to  be  addressed  to  asylum 
seekers and returnees during hearings. Standards imposed by the judiciary are 
more  detailed  for  return-related  hearings  given  that  the  Return  Directive 
does not include provisions on returnees' right to be heard. Asylum-related 
EU secondary legislation, on the other hand, does provide for guidelines on 
the conduct of asylum hearings. For instance, the Recast Asylum Procedure 
provides  for  minimal  common  guidelines,  referring  to  gender  and 
vulnerability issues, the presence of an interpreter, and the right to read and 
ask questions related to the report of the interview drafted by the competent 
administrative  authority.112  In  addition,  Article  4  of  the  Qualification 
Directive provides circumstances that public authorities must assess as part 
of the credibility assessment.113  

The  duty  of  cooperation  incumbent  upon  administrative  authorities114  has 
been  used  by  the  CJEU  to  set  out  positive  obligations  for  administrative 
authorities, such as the obligation to address questions and collect evidence 
from  asylum  seekers  that  would  ensure  complete,  up-to-date,  or  relevant 
information  about  the  general  situation  in  the  country  of  origin  or  transit 
countries that relates to the substantiation of the asylum application.115 On 

111  Muhammad  and  Muhammad  v  Romania  App  no  80982/12  (ECtHR,  15  October 

112 

113 

2020). 
See Recast Asylum Procedure Directive, arts 15-17. 
See n 47. 
See Qualification Directive, art 4(1). 

114 
115  MM (1) (n 45) para 66. 

 
 
 
 
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the  basis  of  the  same  duty  of  cooperation,  the  CJEU  requires  national 
authorities  to  ask  questions  aimed  at  ensuring  the  respect  of  fundamental 
rights, such as Article 1 (human dignity), Article 4 (prohibition of torture and 
other ill treatments), and Article 7 (respect for private and family life) of the 
EU  Charter.116  Human  dignity  issues  have  often  been  raised  in  hearings  of 
health-related  asylum  claims,  which  have  been  recognised  as  pertaining  to 
vulnerable asylum applicants.117 Following the CJEU's preliminary ruling in 
the  Ahmedbekova  case,  Articles  4  and  7  of  the  EU  Charter,  in  conjunction, 
have been held to require an assessment of an application for international 
protection  on  an  individual  basis,  'taking  into  account  the  threat  of 
persecution  and  of  serious  harm  in  respect  of  a  family  member  of  the 
applicant for the purpose of determining whether the applicant is, because of 
his  family  ties  to  the  person  at  risk,  himself  exposed  to  such  a  threat'.  In 
conclusion,  regarding  positive  hearing  obligations  of  administrative 
authorities  in  asylum  proceedings,  the  CJEU  required  a  thorough  and 
rigorous  check  of  the  personal  circumstances  of  the  individual  asylum 
applicant, including questions pertaining to the protection of fundamental 
rights, in particular Articles 1, 4, 7, 24 and 47 of the EU Charter. The Court 
consistently rejected the adoption of negative asylum decisions based on pre-
determined mathematical formulas or general assessments or statements.118 

Regarding negative hearing obligations, in the A, B and C case, the CJEU set 
out key principles by excluding questions and evidence (e.g. videos or photos) 
regarding the applicants' sexual life or practices119 on the basis of Articles 1 
and 7 of the EU Charter.120 These prohibited types of evidence and questions 
do not, however, exonerate administrative authorities from carrying out in-
depth  hearings.  On  the  contrary,  the  CJEU  emphasised  that  the  interview 
should  be  designed  to  assess  the  personal  or  general  circumstances 
surrounding the application, 'in particular, the vulnerability of the applicant, 

116 

117 

118 
119 

120 

Joined Cases C-199/12 to C-201/12 X,  Y, Z EU:C:2013:720; Joined Cases C-148-
150/13 A.B.C EU:C:2014:2406. 
See  Case  C-353/16  MP  EU:C:2018:276.  The  list  of  questions  to  be  addressed  in 
health-related asylum claims will be further clarified in a pending case, Case C-
756/21 X v IPAT. 
See in particular Case C-901/19 CF and DN EU:C:2021:472. 
Joined Cases C-148-150/13 ABC EU:C:2014:2406. 
Ibid. 

 
 
 
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and to carry out an individual assessment of the application, taking account 
of  the  individual  position  and  personal  circumstances  of  each  applicant'.121 
While  the  Court  did  not  reject  the  use  of  expert  reports  (e.g.  forensic 
psychologists' expert opinion) in the assessment of facts and circumstances 
of asylum claims based on sexual orientation grounds, it clearly found the use 
of  projective  personality  tests  in  sexual  orientation  asylum  cases  to  be 
inappropriate.122  Relying  on  Principle  18  of  the  Yogyakarta  Principles 
(protecting  individuals  from  medical  abuses  based  on  sexual  orientation  or 
gender  identity),  and  on  Articles  1,  4,  and  7  of  the  EU  Charter,  the  CJEU 
clarified  that  a  final  asylum  decision  must  be  based  on  the  individual 
assessment of all personal circumstances pertaining to each case, including 
sexual orientation matters.123 

The  CJEU's  list  of  questions  and  circumstances  has  been  completed  by 
domestic courts when implementing the A, B and C preliminary ruling. Dutch 
courts  clarified  the  information  that  public  authorities  have  to  include  in 
their decisions on the basis of the right to good administration: the questions 
addressed;  how  weighing  of  evidence  regarding  persecution  on  grounds  of 
sexual orientation was performed; and the statements held to lack credibility 
which  influenced  the  final  administrative  decision.  The  absence  of  such 
information  was  considered  a  breach  of  transparency  by  the  reviewing 
domestic  courts, 
judicial  annulment  of  the  administrative 
decision.124 

justifying 

The  CJEU  has  further  shaped  the  content  of  the  right  to  be  heard  by  also 
defining  a  non-exhaustive  list  of  minimum  questions  in  return-related 
proceedings.  Namely,  the  administrative  authorities  have  to  obtain:  the 
third-country national's view on the legality of his or her stay; facts that could 
justify  the  authorities  to  refrain  from  adopting  a  particular  return-related 

121 

Ibid para 70. 

122   Case C-473/16 F EU:C:2018:36. 
123  

Ibid  para  62;  'The  Yogyakarta  Principles:  Principles  on  the  Application  of 
International Human Rights Law in Relation to Sexual Orientation and Gender 
Identity' (The Yogyakarta Principles, March 2007) <http://yogyakartaprinciples. 
org/ wp-content/uploads/2016/08/principles_en.pdf/> accessed 7 April 2022. 
See 'European Union, CJEU, A, B and C, Judgment of 4 December 2014' (EUI 
Centre for Judicial Cooperation) <https://cjc.eui.eu/data/data/data?idPermanent 
=336> accessed 7 April 2022. 

124 

 
 
 
 
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decision,  in  particular  information  that  could  correct  an  error  or  add 
information as regards his or her personal circumstances;125 facts that justify 
exceptions to the expulsion;126 social circumstances of the irregular migrant, 
including the best interests of the child, family life and the state of health of 
the  individual  concerned  and  risks  of  non-refoulement;127  the  third-country 
national's view on the detailed arrangements for his or her return, including 
the possibility to extend the period of voluntary departure under Article 7(2) 
of the Return Directive.128 In addition, the CJEU clarified the legal force of 
evidence in return proceedings. Notably, public authorities cannot base their 
return-related decisions solely on the criminal record or prior rejection of an 
asylum  claim,  or  on  illegal  stay  or  entry.  The  hearing  must  go  beyond 
addressing these aspects.129 

The  impact  of  the  CJEU's  judgments  has  been  particularly  felt  in  those 
jurisdictions that had systematically conducted summative hearings.130 First, 
domestic  courts  gained  a  concrete  EU  code  on  administrative  hearings  as 
standard for the legality review of administrative decisions. Second, domestic 
judicial review of the duty of good administration became more inquisitorial 
in order to ensure the right to good administration as an individual, concrete 
right.  Notably,  the  Supreme  Administrative  Courts  of  Lithuania  and 
Bulgaria131  interpreted  the  duty  of  good  administration  as  also  including  a 

125 

126 

127 

128 

129 

130 

131 

Boudjlida (n 37) paras 37, 55. 
Ibid para 47. 
Ibid  para  48.  As  regards  the  states  of  health  that  are  relevant  for  both  the 
suspension of return and for recognition of subsidiary protection, see respectively 
Abdida  (n  80);  Case  C-353/16  MP  v  Secretary  of  State  for  the  Home  Department 
EU:C:2018:276. 
Boudjlida (n 37) para 51. 
Ibid. 
Such as Italy. See Alessia di Pascale, 'Can a Justice of Peace be a Good Detention 
Judge? The Case of Italy' in Madalina Moraru, Galina Cornelisse and Philippe de 
Bruycker (eds), Law and Judicial Dialogue on the Return of Irregular Migration from 
the European Union (Hart 2020) 301. 
Supreme  Administrative  Court  of  Bulgaria,  Gladkih  v  the  Director  of  Regional 
Directorate of Border Police, case No 11574/2011; Supreme Administrative Court of 
Lithuania, ZK v Kaunas County Police Headquarters, case No A-2681/2012, decision 
of 3 September 2013;  MS  v. Migration Department under the Ministry of Interior, 
case No A-69/2013, decision of 20 June 2013. For a summary of these cases see 

 
 
 
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duty to give returnees a period of reflection that ensures sufficient time to 
gather necessary evidence, as well as a duty to properly inform individuals of 
the purposes of the hearing to be held.  

In  a  nutshell,  the  CJEU  developed  a  code  of  conduct  on  administrative 
hearings  in  ISD  proceedings  based  on  Article  47  of  the  EU  Charter  and 
general principles of EU law, in particular good administration and rights of 
defence. In spite of the CJEU's constitutional contribution to enhance rule 
of  law    standards  during  asylum  and  immigration  hearing  procedures,  the 
transformative effect of the Court's jurisprudence has had more impact on 
domestic judicial review than on EU legislation.132 

IV. REMEDIES FOR PROCEDURAL IRREGULARITIES IN ADMINISTRATIVE 
HEARINGS: TRACES OF CONSTITUTIONAL, ACTIVIST, AND 
DEFERENTIAL INTERPRETATION 

The  previous  sections  have  shown  how  the  CJEU  and  its  dialogue  with 
domestic courts have contributed to the recognition of new rights to be heard 
in  domestic  ISD  proceedings  by  fleshing  out  their  content  and  form. 
Nevertheless,  these  achievements  would  remain  wholly  theoretical  in  the 
absence  of  effective  remedies  for  violations  of  the  right  to  be  heard.  The 
current migration context, characterised by increasing fast-track asylum and 

Madalina  Moraru  and  Geraldine  Renaudiere,  'REDIAL  Electronic  Journal  on 
Judicial  Interaction  and  the  EU  Return  Policy:  Articles  12  to  14  of  the  Return 
Directive 2008/115' (2016) REDIAL Research Report 2016/04 <https://cadmus. 
eui.eu/bitstream/handle/1814/43924/MPC_REDIAL_2016_04.pdf>  accessed  7 
April 2022. 
See  See  Daniel  Thym  (ed),  'Special  Collection  on  the  "New"  Migration  and 
Asylum  Pact'  (EU  Immigration  and  Asylum  Law  and  Policy,  October  2020-
February  2021)  <https://eumigrationlawblog.eu/series-on-the-migration-pact-
published-under-the-supervision-of-daniel-thym/> accessed 31 March 2022. 

132 

 
 
 
 
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immigration  policies,133  limitation  of  domestic 
judicial  review,134  and 
executive non-compliance with domestic judgments135 has been endangering 
the system of effective remedies for violations of the right to be heard. Article 
47 of the EU Charter and the general principle of EU law of rights of defence 
have  been  instrumental  in  the  CJEU's  clarification  and  enhancement  of 
judicial  hearing  obligations  and  review  powers  of  domestic  courts  over 
administrative  decisions,  which  have  ultimately  led  to  ensuring  effective 
judicial remedies and the respect of the rule of the law of in both asylum and 
return proceedings. 

irregularities 

level,  procedural 

in  the  conduct  of 
At  the  national 
administrative hearings – be it mere shortcomings or absence of a hearing – 
are  often  considered  'minor'  faults  that  do  not  automatically  lead  to 
annulment of the administrative decision unless they affect its substance.136 
G&R is the first case where the CJEU assessed the appropriate remedy for 
lack  of  hearing  a  returnee  before  the  administrative  authority  adopted  the 
prolongation of pre-removal detention by 12 months. The CJEU agreed with 
the  referring  Dutch  Council  of  State  that  such  an  irregularity  should  not 
automatically lead to the annulment of an administrative decision. Instead, 
following  its  previous  approach  in  competition  and  terrorism-related 
caselaw,  the  CJEU  held  that  such  an  infringement  of  the  rights  of  the 
defence, in particular the right to be heard, results in annulment only if, had 
it  not  been  for  the  contested  irregularity,  the  outcome  of  the  procedure 
might have been different.137 While the CJEU established a common remedy 
for violations of the right to be heard across public law fields, it introduced an 

133 

134 

135 

136 

137 

See, for instance, International Centre for Migration Policy Development,  The 
Asylum  Appeals  Procedure  in  Relation  to  the  aims  of  European  Asylum  Systems  and 
Policies (International Centre for Migration Policy Development 2020). See also 
Giusepe Campesi, 'The EU Pact on Migration and Asylum and the Dangerous 
Multiplication of "Anomalous Zones" for Migration Management' (ASILE Blog, 
20  November  2020)  <https://www.asileproject.eu/the-eu-pact-on-migration-
and-asylum-and-the-dangerous-multiplication-of-anomalous-zones-for-
migration-management/> accessed 7 April 2022. 
Elisa Enrione (n 3). 
See, for instance, Case C-556/17 Torubarov EU:C:2019:626; Szulecka (n 5). 
For  instance,  in  the  Netherlands  and  Germany,  according  to  the  legal  context 
provided in Case C-383/13 PPU G&R EU:C:2013:533 and Addis (n 10). 
See G&R (n 136) para 40. 

 
 
 
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additional safeguard in immigration cases.138 Notably, the CJEU established 
a duty on national courts to ex officio assess whether, 

in the light of the factual and legal circumstances of the case, the outcome of 
the administrative procedure at issue could have been different if the third-
country  nationals  in  question  had  been  able  to  put  forward  information 
which might show that their detention should be brought to an end.139  

This  judicial  empowerment  could  be  interpreted  as  a  refinement  of  the 
CJEU's  previous  approach  on  remedies  developed  in  competition  and 
taxation, but also as a compromise between ensuring enhanced protection of 
the right to be heard when absolute human rights are at issue, and respect of 
the principle of national procedural autonomy.  

In the field of asylum, Article 46(3) of the Recast Asylum Procedure Directive 
provides for more extensive review rights compared to the above-mentioned 
judicial  review  powers  in  return-related  proceedings.  This  provision 
stipulates  that  domestic  courts  should  carry  out  'a  full  and  ex  nunc 
examination  of  both  facts  and  points  of  law'.  At  the  national  level,  the 
potential of this Article has been significantly limited by inherent features of 
the  predominant  asylum  adjudication  model  of  non-inquisitorial 
administrative  proceedings140  and  rule-of-law  backsliding.  In  a  series  of 
preliminary rulings originating from Bulgaria,141 Germany,142 and Hungary,143 
the CJEU has clarified the meaning of EU law notions of 'full' and 'ex nunc' 
judicial  review  required  under  Article  46(3)  in  line  with  the  hierarchically 
superior norm of Article 47 of the EU Charter. 

The first case where the CJEU addressed the oral judicial hearing powers and 
obligations  of  domestic  courts  is  the  Sacko  case,  concerning  manifestly 

138 

139 

Compare the preliminary ruling in G&R (n 136) para 40 (CJEU uses 'must') with 
the preliminary ruling in Case C-129/13 Kamino EU:C:2014:2041, para 81 (CJEU 
uses  'may').  On  the  CJEU  shaping  the  right  to  be  heard  in  the  field  of  custom 
duties, see more in Zumbini (n 70). 
Ibid. 
140 
See ReJus Casebook (n 43) 209-215. 
141 
Alheto (n 10). 
142  Addis (n 10). 
143 

Torubarov (n 135). 

 
 
 
 
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unfounded or other inadmissible asylum applications.144 An Italian legislative 
reform  from  2017  introduced  the  system  of  video-recording  an  asylum 
seeker's  administrative  interview,  which  had  been  considered  as  rendering 
oral judicial hearings necessary only in exceptional circumstances. However, 
this  technology  had  not  been  effectively  implemented  so  that  courts  only 
received  the  transcript  of  the  administrative  interview,  but  not  the  video-
recording tape.145 Italian courts disagreed on whether they should hold oral 
judicial hearings as a rule in these circumstances.146  

In Sacko, the CJEU followed a deferential interpretation of the right to be 
heard by holding that a right to an oral judicial hearing in asylum proceedings 
cannot be derived from Article 47 of the EU Charter or a systematic reading 
of Articles 12, 14, 31, and 46 of the Recast Asylum Procedure Directive, even 
if the administration  had not submitted a video recording of the interview 
with the asylum seeker in the case file. However, the CJEU allowed domestic 
courts to dismiss the appeal without hearing the asylum applicants in strict 
circumstances, that is only if an oral hearing was conducted according to the 
guarantees  set  out  in  Articles  14-17  of  the  Recast  Asylum  Procedure 
Directive, if the report or the transcript of the interview was placed in the 
case  file  in  accordance  with  Article  17(2)  of  the  Recast  Asylum  Procedure 
Directive,  and  as  long  as  domestic  courts  considered  it  unnecessary  to 
organise an oral hearing to ensure a full and ex nunc examination of both facts 
and  points  of  law  as  required  under  Article 46(3)  of  that  Directive. 
Nevertheless,  the  CJEU's  findings  should  be  confined  to  the  specific 
circumstances of the case, which involved an asylum application considered 
manifestly unfounded at the domestic level. 

144  Case C-348/16 Sacko EU:C:2017:591. 
145  Gabriele  Serra,  'Mancanza  di  videoregistrazione  del  colloquio  dinanzi  alla 
Commissione  territoriale  e  obbligatorietà  dell'udienza  di  comparizione  delle 
parti  nel  giudizio  di  protezione  internazionale:  la  posizione  della  Corte  di 
cassazione' 
2018)  <https://www. 
questionegiustizia.it/articolo/mancanza-di-videoregistrazione-del-colloquio-
dinan_13-09-2018.php> accessed 7 April 2022. 
See the referral order sent by the Tribunal of Milano. Angelo Danilo De Santis, 
'L'eliminazione  dell'udienza 
il 
riconoscimento  della  protezione  internazionale.  Un  esempio  di  sacrificio  delle 
garanzie' [2018] (2) Questione Giustizia 206. 

(e  dell'audizione)  nel  procedimento  per 

(Questione  Giustizia, 

13  September 

146 

 
 
 
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The CJEU Shaping the Right to Be Heard 

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This  careful  manoeuvring  of  the  CJEU  between  two  opposite  principles  – 
national  procedural  autonomy  and  human  rights  protection  –  resulted  in  a 
great deal of uncertainty on the precise application of the Sacko judgment in 
the  Italian  context.  The  Italian  referring  court  decided  to  organise  an  oral 
hearing in an accelerated asylum procedure because it found the information 
submitted by the administration to be incomplete and insufficiently up-to-
date for the court to effectively ensure its EU law mandate under Article 46(3) 
of  the  Recast  Asylum  Procedure  Directive.147  However,  neither  the  Sacko 
preliminary ruling, nor the referring court's follow-up judgment managed to 
unify  the  Italian  jurisprudence  on  the  necessity  of  oral  judicial  hearings  in 
asylum  adjudication.148  Several  years  from  the  delivery  of  the  preliminary 
ruling in the Sacko case, the Italian jurisprudence continued to diverge due to 
conflicting interpretations of the preliminary ruling by the Italian supreme 
court (Court of Cassation).149 

The CJEU caselaw following Sacko has dealt with judicial powers and duties 
of  oral  hearings  and  review  within  the  wider  context  of  the  separation  of 
powers  between  the  executive  and  the  judiciary,  and  rule  of  law  issues  in 
asylum and immigration. The lower the executive accountability guarantees, 
the more intrusive is the CJEU's re-design of the national system of remedies. 
For instance, in  El  Hassani,150 where the Polish administration was entirely 
exempted from a judicial review of its visa refusals, the CJEU required the 
conferral of a right to judicial appeal to rejected visa applicants on the basis 
of Article 47 of the EU Charter.  

147 

148 

149 

150 

For a summary of this decision, see Martina Flamini, 'The Right to be heard in 
international  protection  proceedings  before  the  Italian  Judge',  in  Federica 
Casarosa (eds), The Practice of Judicial Interaction in the Field of Fundamental Rights 
–  The  Added  Value of  the Charter of Fundamental Rights  of the EU  (Edward Elgar 
2022) 288. 
See  Cristina  Dallara  and  Alice  Lacchei  'Street-level  Bureaucrats  and  Coping 
Mechanisms.  The  Unexpected  Role  of  Italian  Judges  in  Asylum  Policy 
Implementation' (2021) 26(1) South European Society and Politics 83. 
Ibid. The Cassation Court has only very recently taken a unified approached on 
the mandatory nature of oral judicial hearing. See Sez 1, n 01785/2020, Rv 656580-
01. 
Case C-403/16 El Hassani EU:C:2017:960. 

 
 
 
 
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Within  a  rule-of-law  backsliding  context,  where  administrative  authorities 
repeatedly disregard final judgments in asylum adjudication, the CJEU fills 
the  gap  in  the  effective  protection  of  Article  47  of  the  EU  Charter  by 
empowering  domestic  courts  to  draw  on  international  sources  outside  the 
confines of national procedural law.151 When administrative authorities aim 
to bypass judicial review of their decisions on return procedures by disguising 
new decisions as mere amendments of previous  ones, the CJEU re-designs 
the shape of the national remedy to compensate for shortcomings in the rule 
of  law  system.  For  instance,  in  FMS  and  others,152  the  CJEU  required 
Hungarian law to extend the right to appeal to those third-country nationals 
whose country of return had been changed by the public authority compared 
to  the  issued  return  decision.  Administrative  authorities  thus  cannot  be 
exempted from judicial review of their decisions in ISD proceedings, nor can 
judicial review be entirely deprived of its inquisitorial nature. In the  Mahdi 
case,153 Bulgarian courts were recognised to have the power to assess, on their 
own initiative, new facts and legal elements outside the evidence provided by 
the administration in pre-removal detention proceedings. In addition, they 
were recognised to have the power to establish additional remedies to those 
recognised  at  the  national  level,  such  as  the  power  to  establish  alternative 
measures to pre-removal detention, or to release an irregularly staying third-
country national from pre-removal detention.  

The CJEU has further shaped the requirements for holding an oral judicial 
hearing in Alheto.154 Notably, the Court held that an oral judicial hearing is 
mandatory  in  asylum  adjudication,  even  if  not  expressly  required  under 
domestic  law,  when  a  court  intends  to  examine  a  new  ground  of 
inadmissibility,  which  has  not  been  examined  by  the  competent 
administrative authority, based on new evidence that has come to light after 
the appeal of the administrative decision. Article 47 of the EU Charter would 
require  an  interpretation  of  the  'full  and  ex  nunc'  examination  set  out  in 
Article  46(3)  of  the  Recast  Asylum  Procedure  Directive,  under  which  a 
domestic court can handle the asylum application exhaustively 'without there 

See Torubarov (n 135). 
Joined Cases C-924/19 PPU and C-925/19 PPU FMS and others EU:C:2020:367. 
C-146/14 PPU Mahdi EU:C:2014:1320. 

151 

152 
153 
154   Alheto (n 10).  

 
 
 
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being any need to refer the case back to the determining authority'.155 The 
CJEU clarified that if additional evidence compared to the one analysed by 
the administrative authority is taken into account by a domestic court, then 
an oral judicial hearing is necessary in order to allow the individual to express, 
in person and in a language with which he or she is familiar, his or her view 
concerning  the  applicability  of  that  ground  to  his  or  her  particular 
circumstances.156 In Alheto, the Court also added essential safeguards for the 
respect of the rule of law in asylum which has experienced a growing domestic 
backlash  within  the  context  of  executive  aggrandizement  and  non-
compliance  with  judicial  assessments.157  The  CJEU  underlined  that  the 
effectiveness  of  Article  46(3)  of  the  Recast  Asylum  Procedure  Directive 
would  be  undermined  if,  following  a  decision  of  a  court  including  full 
assessment of the asylum application, the competent administrative or quasi-
judicial  authority  disregards  that  assessment  or  does  not  adopt  a  decision 
within a short period of time.158 

The  CJEU's  approach  to  remedies  was  further  clarified  in  the  context  of 
remedies  for 
lack  of  administrative  hearings  in  accelerated  asylum 
proceedings. In Addis,159 the German authorities decided to deport a rejected 
asylum seeker without hearing him, although he had argued that his transfer 
would amount to a violation of his rights under Article 4 of the EU Charter 
due  to  precarious  living  conditions  in  the  Member  State  of  transfer.  The 
CJEU required judicial annulment of the administrative decision and that the 
case  be  sent  back  to  the  administration  to  conduct  the  individual  and  oral 
hearing according to the rules set out in Articles 14-17 of the Recast Asylum 
Procedure Directive. This finding establishes a higher protection of the right 
to  be  heard  in  accelerated  asylum  proceedings  compared  to  pre-removal 
detention  proceedings,  as  set  out  in  the  G&R  case.  The  reasons  for  the 
CJEU's change of remedy could be, first, the importance of the mandatory 
individual  oral  interview  within  the  asylum  adjudication,  which  does  not 

155  
156 

157  

Ibid para 112. 
Ibid paras 114, 130. 
Evangelia Lilian Tsourdi, 'Asylum in the EU: One of the Many Faces of Rule of 
Law  Backsliding?'  (2021)  17  European  Constitutional  Law  Review  471;  and 
Szulecka (n 5). 
158   Alheto (n 10) para 148. 
159 

Addis (n 10). 

 
 
 
 
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differentiate between admissibility and merits assessment; and, second, the 
asylum seeker's allegation of a risk of violation of his absolute fundamental 
right to prohibition of ill-treatments under Article 4.160 The CJEU noted that 
a  personal  interview  run  by  the  administration  within  asylum  adjudication 
benefits from a wide range of guarantees,161 which neither the Directive nor 
domestic law guarantee during the judicial hearing (e.g. orality, and interview 
with a same-sex officer). As long as the judicial hearing cannot ensure the full 
range  of  guarantees  provided  by  the  Recast  Asylum  Procedure  Directive 
during administrative hearings, domestic courts are required to set aside the 
administrative decision as null, rather than performing a hearing with lower 
guarantees than under the administrative phase of asylum adjudication.  

In conclusion, the remedies developed by the CJEU for violations of the right 
to  be  heard  in  ISD  proceedings  illustrate  first,  a  constitutional  vision 
whereby  the  same  remedy  for  violation  of  the  right  to  be  heard  should  be 
recognised  across  EU  policies 
(e.g.  migration,  competition,  trade 
sanctions).162 However, variations exist in the CJEU jurisprudence. Notably, 
in G&R, the constitutional ambition resulted in a restrictive interpretation of 
the  right  to  be  heard,  even  if  the  right  to  liberty  or  the  principle  of  non-
refoulement was at issue. However, in Alheto and Addis, the CJEU refined its 
constitutional  vision  of  the  right  to  heard  by  including  annulment  of 
administrative  decision  and  mandatory  judicial  hearing  as  remedies  for 
violation of the right to be heard by the administrative authorities in asylum 
adjudication. Judicial empowerment to establish new remedies, which have 
traditionally been reserved for the executive, appears to be the solution found 
by the CJEU to an ineffective system of national remedies stemming from 
rule  of  law  shortcomings.163  In  this  way,  the  Court  actively  re-designed 

160 

161 

162 

163 

See, in particular Addis (n 10) para 54. 
See Recast Asylum Procedure Directive, arts 15-17. 
That is: an infringement of the right to be heard results in annulment only if, had 
it not been for the  contested irregularity, the outcome of the procedure might 
have been different. G&R (n 136). 
For instance, a new right to judicial review was recognised in El Hassani (n 150) and 
a duty to organise oral judicial hearings when new grounds of inadmissibility are 
considered  in  Alheto  (n  10).  In  addition,  the  Court  extended  judicial  hearing 
powers beyond the limits of administrative evidence (Mahdi (n 153), Abdida (n 80), 
Case C-652/16 Ahmedbekova EU:C:2018:801 and Alheto (n 10) and guaranteed the 

 
 
 
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domestic  ISD  proceedings  to  ensure  a  delicate  balance  of  powers  between 
the  administration  and  the  judiciary.  However,  the  CJEU  showed  judicial 
deference  to  domestic  policy  options  when  the  principles  of  equivalence, 
effectiveness, and effective judicial protection are respected. 

V. CONCLUSIONS: THE CJEU'S JUDICIAL SHAPING OF THE RIGHT TO BE 
HEARD - ACHIEVING A DELICATE BALANCE BETWEEN DIVERGENT 
INTERESTS? 

The  right  to  be  heard  of  asylum  seekers,  returnees  and  visa  applicants  has 
been  a  highly  politicised  topic.  This  right  falls  within  two  areas  of  law  – 
procedure  and  immigration  –  which  have  long  been  considered  by  the 
Member States as falling within their exclusive competences. The right has 
been  further  politicised  by  being  increasingly  presented  as  a  hindrance  to 
effectively combating irregular migration and preventing threats to national 
security. Countering the executive-driven model of hearing rights, domestic 
courts have acted as rule of law guarantors, interpreting the right to be heard 
also in light of EU primary and secondary legislation. Within this context of 
irregular  migration  vs.  protection  of 
divergent 
fundamental  rights,  and  primacy  of  EU  law  over  respect  of  national 
procedural autonomy – the CJEU has had to decide on the scope, content, 
and  effects  of  the  EU  fundamental  right  to  be  heard  in  domestic  ISD 
proceedings.  By  exercising  judicial  diplomacy,  the  Court  has  reconciled 
various conflicting interests, principles, and policies by using constitutional, 
activist, and deferential interpretations of the right to be heard. Ultimately, 
the scope of the right to be heard in ISD proceedings has gained precision 
and  enhanced  protection  through  the  judicial  interactions  between  the 
CJEU and domestic courts. 

interests  –  fighting 

The constitutional mindset of the CJEU has manifested in the development 
of common principles governing the scope of application of the right to be 
heard,  the  conduct  of  administrative  hearings,  and  remedies.  These 
migration-specific principles have then gained constitutional status by also 

preservation  of  judicial  hearing  powers  that  courts  used  to  possess  before 
executive or legislative reforms adopted in response to the so-called refugee crisis 
(Sacko (n 144) and Torubarov (n 135)). 

 
 
 
 
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being applied in other EU law areas.164 Fundamental rights as guaranteed by 
general principles of EU law of rights of defence and good administration, as 
well as Article 47(2)  of the EU Charter have been  invoked by the  CJEU as 
legal  basis  for  recognising  new  rights  to  be  heard  for  asylum  seekers,  visa 
applicants  and  returnees.  The  CJEU  held  that  even  if  'the  applicable 
legislation does not expressly provide for such a procedural requirement',165 
domestic authorities are obliged to confer the right to a hearing before they 
adopt  a  decision  on  the  legal  status  that  could  negatively  affect  the 
individual's rights.  

As part of its constitutional role, the CJEU has established the necessity of 
orality of administrative hearing for vulnerable categories of asylum seekers 
(M.M.(2)).  It  has  developed  a  common  prototype  of  hearing  guidelines 
derived  from  fundamental  rights  (M.M(1),  A,  B  and  C),  and  it  became  the 
guarantor  of  the  rule  of  law  at  the  domestic  level  by  re-establishing  the 
balance of powers between executive and judiciary in the enforcement of EU 
law. This development has been particularly prominent in those asylum and 
migration cases occurring against the background of rule-of-law backsliding 
(e.g.  Torubarov,  FMS  and  others).  The  CJEU  has  thus  reinstated  domestic 
courts  in  their  constitutional  role  of  ensuring  checks  and  balances  in  an 
executive-dominated field. On the basis of the right to an effective judicial 
remedy, enshrined in Article 47 of the EU Charter, domestic courts can thus 
organise judicial hearings as compensation for irregularities in administrative 
hearings  beyond  the  limits  of  domestic  procedural  laws  (G&R  and  Sacko). 
Furthermore, they have an obligation to organise oral hearings as corollary of 
the adversarial principle when they examine new grounds of inadmissibility 
in asylum adjudication for the first time (Alheto). The CJEU has also extended 
the judicial review of domestic courts to new facts and evidence beyond those 
submitted  by  the  administration  (Mahdi,  Alheto,  and  Ahmedbekova),  and 

164 

For  instance  in  consumer  protection,  see  Case  C-472/11  Banif  Plus  Bank 
EU:C:2013:88;  C-119/15  Biuro  EU:C:2016:987.  See  more  in  Federica  Casarosa, 
ReJus Casebook on Effective Justice in Consumer Protetion (University of Trento 2018) 
<https://www.rejus.eu/sites/default/files/content/materials/rejus_casebook_effec
tive_justice_in_consumer_protection.pdf> accessed 7 April 2022. 

165  MM (1) (n 45) para 86. 

 
 
 
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recognised the reformatory powers166 of domestic courts beyond the limits of 
procedural  law (Torubarov and Mahdi). Immigration fields that were under 
discretionary executive control have been brought within the judicial review 
purview  (El  Hassani),  and  courts  were  recognised  as  the  sole  authority 
competent  to  provide  for  effective  legal  remedies  in  return  proceedings  in 
spite  of  the  more  permissive  wording  of  the  Return  Directive  (FMS  and 
others).167 

In  its  constitutional  role,  the  CJEU  has  manifested  both  an  activist  and 
deferential or restrictive interpretation of the human right to be heard. The 
legislative gap-filling role exercised by the CJEU, particularly regarding the 
right  to  be  heard  of  returnees,  might  seem  like  a  manifestation  of  judicial 
activism,  similar  to  the  re-design  of  division  of  powers  between  the 
administration and judiciary on the basis of the EU law general principle of 
rights  of  defence  and  Article  47(2)  of  the  EU  Charter.168  However,  this 
manifestation of judicial activism is tempered by a restrictive interpretation 
of  the  right  to  be  heard  regarding  the  actual  number  of  administrative 
hearings in combined asylum and return proceedings; the orality of judicial 
asylum hearings; and the type of remedy for violations of the right to be heard. 
On  these  issues,  the  CJEU  has  respected  the  policy  choices  made  by  the 
Member States within the margin of discretion afforded by the relevant EU 
secondary legislation on asylum and immigration. As long as Member States 
comply  with  the  tryptic  of  requirements  –  equivalence,  effectiveness, 
effective judicial protection of the right to be heard – and more recently with 
rule of law safeguards, the Court will not challenge the design of immigration 
procedures  (e.g.  the  merging  of  hearings  in  relation  to  asylum  and  return 
procedures  into  one  single  administrative  hearing  as  in  Boudjlida  and 
Mukarubega),  nor  will  it  impose  the  principle  of  orality  to  judicial  hearing 
(Sacko).  However,  as  highlighted  above,  when  rule  of  law  guarantees  are 

166 

167 

168 

By reformatory powers, this article refers to the power to recognise international 
protection  as  such,  thus  going  beyond  the  mere  power  of  quashing  the 
administrative  decision,  which  is  commonly  describe  as  cassatory  power.  For 
more, see Ida Staffans, 'Evidentiary Standards of Inquisitorial Versus Adversarial 
Asylum  Procedures  in  the  Light  of  Harmonization'  (2008)  14  European  Public 
Law 615. 
FMS and others (152) para 129. 
As exemplified in El Hassani (n 150), Alheto (n 10) Torubarov (135) and Addis (n 10). 

 
 
 
 
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imperilled,  the  CJEU  establishes  wide  judicial  review  and  reformatory 
powers  to  compensate  for  illegitimate  executive  overreach  (Torubarov  and 
FMS and others). 

National courts have started preliminary reference procedures in an attempt 
to  legitimise169  their  own  specific  interpretation  of  the  right  to  be  heard 
against  the  opposing  views  of  the  executive,170  hierarchically  superior 
courts,171 majority judicial opinion,172 or even the CJEU.173 The Court has thus 
had to reconcile not only diverging interpretations between judiciary and the 
executive,  but  also  diverging  domestic  judicial  preferences  on  the  correct 
interpretation of the right to be heard. The CJEU has not fully endorsed the 
opinions put forward by the referring courts, be they expansive fundamental 
rights interpretation (e.g. Boudjlida and Mukarubega), self-restrained (Sacko), 
executive  deferential  (G&R),  or  Charter-centred  (Mahdi).  Nevertheless, 
when  essential  elements  of  the  rule  of  law  were  at  issue,  such  as  judicial 
independence,  the  CJEU  has  shown  a  higher  endorsement  of  domestic 
courts' views formulated in the referrals (Torubarov, FMS). The outcome is a 
construction of the right to be heard by the CJEU that is different from the 
various  interpretations  put  forward  by  the  referring  courts  and  the 
Governments. Nevertheless, this has not always resulted in ensuring the full 
potential  of  fundamental  rights  protection,  as  shown  by  the  remedy 
established  in  the  G&R  case.  The  CJEU  could  have  further  adapted  the 
remedy by placing the burden of proof on the infringing public authorities, 
and still be considered as acting in compliance with the EU law principle of 
procedural autonomy. Notably, the CJEU has refined this initial approach to 

170 

169  On legitimation theory as motivation for cooperating with the CJEU, see Juan A. 
Mayoral,  'Judicial  empowerment  expanded:  Political  determinants  of  national 
courts'  cooperation  with  the  CJEU'  (2019)  25  European  Law  Journal  374.  This 
work expands on previous judicial empowerment theories developed by Weiler 
(n  29);  Anne-Marie  Burley  and  Walter  Mattli,  'Europe  Before  the  Court:  A 
Political Theory of Legal Integration' (1993) 47 International Organization 41. 
The Bulgarian Administrative Court of Sofia in Mahdi (n 153) and the Hungarian 
Administrative and Labour Court of Pécs in Torubarov (n 135).  
See,  for  instance,  the  Tribunal  of  Melun  and  Pau  in  Mukarubega  (n  54)  and 
Boudjlida (n 37). 
Tribunal of Milan in Sacko (n 144). See also Dutch Council of State in G&R (n 136), 
in reply to a developing opposing judicial view. 
See Irish Supreme Court in MM (2) (n 48). 

172 

173 

171 

 
 
 
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The CJEU Shaping the Right to Be Heard 

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the  remedy  in  more  recent  caselaw  (e.g.  FMS  and  others  and  Alheto).  The 
preliminary rulings delivered within the rule of law and migration crises have 
strengthened  the  judicial  empowerment  theory  as  a  solution  for  effective 
remedies. 

Nevertheless,  the  reality  of  domestic  judicial  implementation  of  CJEU 
judgments show that, despite the prolific judicial interactions, the shape of 
the right to be heard has developed unevenly across the Member States. This 
is mainly due to the different domestic judicial understandings of the national 
discretion  recognised  in  the  preliminary  rulings.  While  some  jurisdictions 
show  a  high  convergence  of  judicial  views  on  the  shape  of  the  right  to  be 
heard,174  others  still  disagree  on  key  issues.175  Various  factors  seem  to 
influence  domestic  judicial  convergence,  such  as  the  clarity  of  operational 
guidance  and  benchmarks  phrased  by  the  CJEU,  the  consistent 
interpretation of the supreme courts, and the extent of judicial review and 
remedial  powers  of  domestic  courts.176  In  this  context,  judicial  interaction 
could  further  serve  to  settle  judicial  disagreement  and  set  standards  for 
policy-making with which the EU institutions would be wise to engage in the 
ongoing legislative reform of asylum and migration governance. 

174 

175 

176 

Such as Lithuania, Belgium, Bulgaria. 
For instance, see the case of Italy in the follow-up to the Sacko (n 144) preliminary 
ruling, as described in section IV. 
In  Italy,  for  instance,  unlike  the  other  jurisdiction,  the  supreme  court  had 
delivered  varied  interpretations  of  the  Sacko  (n 144)  preliminary  ruling;  Italian 
asylum  judges  enjoy  the  widest  judicial  review  and  remedial  powers  across  the 
Member States. 

 
 
 
 
ENDORSING MIGRATION POLICIES IN CONSTITUTIONAL TERMS: 
THE CASE OF THE FRENCH CONSTITUTIONAL COUNCIL 

Louis Imbert* 

This article sets out to inquire into the French Constitutional Council's approach when 
dealing with immigration matters. It seeks to demonstrate how the Council's case law 
has  endorsed,  for  the  most  part,  the  legislator's  immigration  policies,  recognizing 
extensive  police  powers  and  striking  down  only  the  most  excessive  provisions  of 
immigration laws. It is argued here that the Council's seemingly neutral methods of 
reasoning  are  in  fact  politically  oriented  instruments  providing  stable  support  for 
restrictive  immigration  policy  preferences. An  overall  analysis  of  the  Council's  case 
law sheds critical light on the main methods of reasoning advanced by the Council to 
endorse immigration policies, even in their most recent restrictive trends. The Council 
has  clearly  opted  in  favor  of  stricter  immigration  control,  deliberately  rejecting  a 
rights-based approach. 

Keywords:  immigration,  French  Constitutional  Council,  constitutional 
review, methods of reasoning, constitutional reasoning, constitutional rights 

TABLE OF CONTENTS 

I. INTRODUCTION .................................................................................................. 64 

II. CONTEXT OF THE CONSTITUTIONAL COUNCIL'S CASE LAW ...................... 66 

1. Historical and Political Context: Contested Immigration Policies ....................... 66 

2. Institutional Context: The Rise of the Constitutional Council .............................. 70 

3. Legal Context: Constitutional Indeterminacy Regarding the Status of  

Foreigners .................................................................................................................. 72 

III. ENDORSING IMMIGRATION POLICIES ON PRINCIPLE ................................. 75 

1. Recognizing Extensive Police Powers ...................................................................... 76 

A. Rejecting Criminal Law Guarantees .................................................................... 77 
B. Favoring Public Order over Rights ...................................................................... 79 

2. Exercising Traditional Self-Restraint..................................................................... 83 

* 

PhD candidate, Sciences Po Law School. 

EJLS Special Issue, May 2022, 63-95 

doi:10.2924/EJLS.2022.003 

 
 
 
 
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IV. LOOSENING PROTECTION: THE EXAMPLE OF IMMIGRATION  

DETENTION ....................................................................................................... 88 

1. Initial Vigilance: Rejecting Longer Detention ........................................................ 88 

2. Later Shift: Accepting Longer Detention ............................................................... 90 

V. CONCLUDING REMARKS .................................................................................. 94 

I. INTRODUCTION

As  in  neighboring  countries,  immigration  policies  in  France  have  taken  a 
repressive turn in the past few decades, focusing more and more on the 'fight 
against  irregular  migration',  both  at  borders  and  inside  the  country.  The 
constant pace of legislative reforms is revealing in this regard. Almost every 
Government  since  1980  has  modified  aspects  of  immigration  law,  mostly 
following  a  restrictive  trend.  In  this  context,  the  role  of  French  courts 
appears more essential than ever. In the early 1970s, the Conseil constitutionnel 
(French  Constitutional  Council)  began  taking  on  responsibility  for  the 
protection  of  fundamental  rights  guaranteed  by  the  French  Constitution 
(and related documents). However, although the Council confirmed early on 
that étrangers (foreigners) are protected by the Constitution,1 it has also been 
inclined to maintain an important margin of action for the legislator and the 
administration,  on  the  basis  of  increasingly  significant  public  order 
considerations. 

This  article  sets  out  to  inquire  into  the  French  Constitutional  Council's 
approach when dealing with immigration matters. It seeks to demonstrate 

1 

Cons  const,  décision  n°  89-269  DC  du  22  janvier  1990,  Loi  portant  diverses 
dispositions relatives à la sécurité sociale et à la santé, cons 33. For the purpose of this 
article,  we  will  use  the  term  "foreigner"  as  the  equivalent  of  the  French  term 
étranger. Article L. 110-3 of the  code de l'entrée et du séjour des étrangers et du droit 
d'asile (French immigration code, CESEDA) defines étrangers as 'persons who do 
not hold French nationality, whether they have a foreign nationality or whether 
they  do  not  have  any  nationality'.  For  the  most  part,  this  article  deals  more 
specifically  with  policies  targeting  individuals  who  are  not  citizens  of  the 
European  Union  (EU).  Since  the  1990s,  EU  citizens  have  acquired  important 
rights  attached  to  their  fundametibntal  freedom  of  movement  within  the  EU. 
They are shielded by EU law from most French immigration control measures. 

 
 
 
 
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Endorsing Migration Policies in Constitutional Terms 

65 

how the Council's case law has endorsed, for the most part, the legislator's 
immigration policies, recognizing extensive police powers and striking down 
only the most excessive provisions of immigration laws. The Council's role in 
confirming  the  main  paradigms  of  French  immigration  policies  can  be 
understood  first  and  foremost  as  one  of  translating  the  legislator's  policies 
into constitutional terms. 

While there are critical commentaries of specific cases pointing this out,2 as 
well as a few systematic analyses of the earlier case law of the Council,3 there 
is a strong need for an updated critical analysis of the Council's case law on 
immigration policies. This article aims at filling this significant academic gap 
by  providing  a  critical  overall  analysis  of  the  Council's  case  law  on 
immigration  matters  (53  decisions  since  1980).  The  analysis  sheds  critical 
light on the main methods of reasoning followed by the Council to endorse 
immigration policies, even in their most recent restrictive trends. It is argued 
here, from a legal realist perspective, that the seemingly neutral methods of 
reasoning  used  by  the  Council  are  in  fact  politically  oriented  instruments 
providing stable support for restrictive immigration policy preferences. 

This  article  is  divided  into  four  parts.  Part  II  will  introduce  the  historical, 
political, institutional and legal context in which the Council has reviewed 
immigration policies. Part III will deal with the ways in which the Council 
has generally endorsed immigration policies in constitutional terms. Part IV 
will  demonstrate  that  the  Council  has  loosened  its  protection  standards 
throughout  the  past  decades,  especially  when  dealing  with  immigration 
detention  regimes,  which  have  been  significantly  expanded  since  their 
creation in the early 1980s. Part V will provide some concluding remarks. 

2 

3 

See  e.g.  Serge  Slama,  'Les  lambeaux  de  la  protection  constitutionnelle  des 
étrangers' (2012) 90 Revue française de droit constitutionnel 373-386. 
Bruno Genevois, 'Le Conseil constitutionnel et les étrangers' in Xavier Robert 
(ed),  Mélanges  Jacques  Robert  (Montchrestien  1998)  253-277;  Olivier  Lecucq,  'Le 
statut  constitutionnel  des  étrangers  en  situation  irrégulière'  (LLD  thesis, 
Université d'Aix-marseille 1999); Raymond Coulon, Des droits de l'homme en peau 
de  chagrin.  Le  droit  des  étrangers  dans  la  jurisprudence  du  Conseil  constitutionnel 
(L'Harmattan 2000); Justin Kissangoula,  La Constitution française et les étrangers. 
Recherches  sur  les  titulaires  des  droits  et  libertés  de  la  Constitution  sociale  (Librairie 
générale de droit et de jurisprudence 2001). 

 
 
 
 
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II. CONTEXT OF THE CONSTITUTIONAL COUNCIL'S CASE LAW 

This second part will introduce some basic context on the recent history and 
politics  of  immigration,  the  rise  of  the  Constitutional  Council  as  the 
potential guardian of fundamental rights in France and the indeterminacy of 
the French Constitution as regards the status of foreigners. This context will 
help  illustrate  the  role  of  the  Constitutional  Council  when  reviewing 
immigration laws. It will demonstrate that the Council enjoys a rather wide 
margin of action on immigration matters as it is not particularly constrained 
by the Constitution in this regard. 

1. Historical and Political Context: Contested Immigration Policies 

Like other Western countries, France has a long history of policies aimed at 
controlling  human  mobility.4  Until  the  19th  century,  such  policies  mostly 
focused  on  vagrant  and  indigent  individuals,  whether  French  or  foreign.5 
Borders were local and national, as passports were required both internally 
and  externally.6  It  was  only  in  the  second  half  of  the  19th  century  that  the 
"immigration problem" emerged and that policies aimed at foreigners as such 
– understood unambiguously as non-nationals rather than as mere outsiders 
–  started  to  proliferate.7  An  1849 
law  consolidated  the  French 
administration's power of expulsion, the deportation of foreigners for reasons 

4 

5 

6 

7 

Andreas Fahrmeir, Olivier Faron and Patrick Weil (eds), Migration Control in the 
North Atlantic World: The Evolution of State Practices in Europe and the United States 
from the French Revolution to the Inter-War Period (Berghahn Books 2002).  
In this regard, there are striking parallels with policies in place at the time in other 
countries. For a comparative perspective, see Fahrmeir, Faron and Weil (n 4). On 
the  emblematic  case  of  the  United  States,  see  in  particular  Kunal  M.  Parker, 
Making  Foreigners:  Immigration  and  Citizenship  Law  in  America,  1600-2000 
(Cambridge University Press 2015).  
Gérard  Noiriel, 
'Surveiller  les  déplacements  ou  identifier  les  personnes ? 
Contribution à l'histoire du passeport en France de la Ière à la IIIe République' 
(1998) 30 Genèses 77.  
Gérard  Noiriel,  Le  Creuset  français.  Histoire  de  l'immigration.  XIXe  –  XXe  Siècle 
(Editions du Seuil 2006), 71; Laurent Dornel, La France hostile. Socio-histoire de la 
xénophobie (1870-1914) (Hachette Littératures 2004).  

 
 
 
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Endorsing Migration Policies in Constitutional Terms 

67 

of public order.8 Between the late 1880s and the 1920s, other specific pieces 
of legislation were adopted to increase control over foreigners. Following the 
adoption of a decree in 1888, foreigners had to declare their residence to local 
authorities.9  From  1917  onwards,  they  were  required  to  obtain  an  identity 
card  from  the  préfet  (prefect)  and  to  declare  their  first  residence  and  any 
subsequent  movement  within  the  country,  including  any  change  of 
residence.10 The 1930s witnessed a new wave of restrictive laws, in the context 
of a devastating economic crisis and rising xenophobia and antisemitism. A 
décret-loi  (decree-law)  adopted  in  May  1938  enacted  more  repressive 
immigration control measures, in addition to assembling existing ones in an 
unprecedented effort to offer a general legislative framework.11  

After  the  Second  World  War,  a  new  general  framework  was  adopted.12  It 
would  become  the  basis  for  contemporary  French  immigration  law,  which 
was eventually codified in the mid-2000s as CESEDA. From 1945 to the late 
1960s, France was in dire need of foreign labor. Authorities seldom enforced 
immigration  control  measures  and  foreigners  were  often  able  to  obtain 
documentation once they had arrived in France.13 In the early 1970s, as the 
country  entered  a  lengthy  economic  crisis  (related  to  the  oil  shock)  and 
suffered  massive  unemployment,  authorities  announced  their  intention  to 
close borders. Regulations were adopted to block labor and family migration 
and  later  on  to  foster  or  even  force  the  departure  of  foreigners  residing  in 

8 

9 

10 

11 

12 

13 

See articles 7 and 8 of the loi du 3 décembre 1849 sur la naturalisation et le séjour des 
étrangers en France. For a brief summary of previous legislation, see Danièle Lochak 
and François Julien-Laferrière, 'Les expulsions entre la politique et le droit' (1990) 
12 Archives de politique criminelle 75.  
Décret du 2 octobre 1888 relatif aux étrangers résidant en France. See also loi du 8 août 
1893 relative au séjour des étrangers en France et à la protection du travail national.  
Décret du 2 avril 1917 portant création d'une carte d'identité à l'usage des étrangers.  
Décret-loi du 2 mai 1938 sur la police des étrangers.  
Ordonnance du 2 novembre 1945 relative à l'entrée et au séjour des étrangers en France.  
Danièle Lochak, 'Les politiques de l'immigration au prisme de la législation sur les 
étrangers' in Didier Fassin, Alain Morice and Catherine Quiminal (eds), Les Lois 
de  l'inhospitalité.  Les  politiques  de  l'immigration  à  l'épreuve  des  sans-papiers  (La 
Découverte 1997) 31-32; Catherine Wihtol de Wenden, 'Ouverture et fermeture 
de  la  France  aux  étrangers.  Un  siècle  d'évolution'  (2002)  73  Vingtième  Siècle. 
Revue d'histoire 33. 

 
 
 
 
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France.14  A  decree  was  successfully  challenged  before  the  Conseil  d'État 
(Council  of  State),  which  recognized  in  a  1978  landmark  decision  that 
foreigners were entitled to the right to lead a normal family life.15 This was an 
important step given the Council of State's longstanding reluctance to review 
the substance of immigration control measures.16  

With  immigration  becoming  an  increasingly  heated  political  issue,  legal 
reforms have been adopted almost every two to three years since 1980.17 Such 
reforms have mostly followed a  restrictive trend, imposing  more  and more 
conditions  on  the  residence  of  foreigners  in  France,  reducing  legal  entry 
pathways as well as procedural and substantial guarantees and facilitating and 
aggravating  deportation  and  detention  measures.18  In  general,  French 
immigration  policies,  as  pursued  by  the  legislator  and  the  administration, 
have  tended  to  focus  more  and  more  on  the  'lutte  contre  l'immigration 
irrégulière' ('fight against irregular migration'), while preserving the  right to 

14 

15 

16 

17 

18 

See  e.g.  circulaire  n°  9-74  du  5  juillet  1974  du  secrétaire  d'Etat  auprès  du  ministre  du 
travail, relative à l'arrêt provisoire de l'introduction de travailleurs étrangers; circulaires 
n° 11-74 du 9 juillet 1974, n° 17-74 du 9 août 1974 et n° 22-74 du 27 décembre 1974 du 
secrétaire d'Etat auprès du ministre du travail, suspendant provisoirement l'introduction 
en  France  des  familles  des  travailleurs  étrangers;  circulaire  n°  77-280  du  20  juin  1977 
relative à l'application de 'l'aide au retour'. 
CE, Ass, 8 décembre 1978, GISTI, CFDT et CGT, n° 10097, 10677, 10679, Rec p 
493.  
In 1836, the Council of State refused to review the legality of administrative acts 
of  deportation  and  detention,  deeming  these  acts  'high  police'  powers  of  the 
French administration, immune from judicial review. CE, 2 août 1836, Naundorff, 
n° 12843, Rec p 379. It was only very gradually that the Council of State asserted 
authority to review such acts. At first, only questions of administrative procedure 
were  open  to  challenge.  See  Stéphane  Duroy,  'Le  contrôle  juridictionnel  des 
mesures de police relatives aux étrangers sous la Troisième République' in Marie-
Claude  Blanc-Chaléard  and  others  (eds),  Police  et  migrants  :  France  1667-1939 
(Presses Universitaires de Rennes 2001) 91-104. 
For a brief historical account of the evolution of immigration law between 1945 
and 2011, see Thomas Ribémont, Introduction au droit des étrangers en France (De 
Boeck 2012) 12-20.  
For a general overview of issues regarding the fundamental rights of foreigners in 
France, see Le Défenseur des droits, Les droits fondamentaux des étrangers en France 
(mai  2016)  <https://www.defenseurdesdroits.fr/sites/default/files/atoms/files/ 
736160170_ddd_rapport_droits_etrangers.pdf> accessed 15 January 2021. 

 
 
 
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Endorsing Migration Policies in Constitutional Terms 

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asylum only to a minimal extent.19 Recently, greater emphasis has been placed 
on 'integration', a vague term crystallizing ideological debates regarding the 
place of immigrants in France.20 These debates rely, at least in part, on the 
widely  held  misconception  that  the  proportion  of  foreigners  has  increased 
significantly  over  the  course  of  the  last  century  in  France.  Although  the 
current proportion (7.6 per cent in 2020) is the highest attained over the past 
century,  it  is  only  slightly  above  1931  and  1982  levels  (6.6  and  6.8  per  cent, 
respectively).21  

In the past few decades, MPs and Senators have lodged numerous challenges 
before the Constitutional Council, mostly arguing that certain laws violated 
the constitutional rights of foreigners.22 While the Council of State remains 
significant  in  reviewing  the  legality  of  administrative  acts  in  the  field  of 
immigration,23  the  Constitutional  Council  has  undoubtedly  become  a  new 
battleground  for  politically  charged  challenges  to  French  immigration 

19  

20 

21 

22 

23 

For a critical account of this trend, see Karine Parrot, Carte blanche. L'Etat contre 
les étrangers (La Fabrique 2019).  
Danièle  Lochak,  'L'intégration  comme  injonction.  Enjeux  idéologiques  et 
politiques liés à l'immigration' (2006) 64 Cultures & Conflits 131.  
In 2020, there were around 5.1 million foreigners in France, thus amounting to 7.6 
per  cent  of  the  total  population  of  France  (67  million  inhabitants).  This 
proportion has varied significantly over time. It went from 6.6 percent in 1931 to 
4.1 per cent in 1954. It then peaked at 6.8 per cent in 1982 before decreasing to 5.5 
per cent in 1999. It has increased again during the past two decades. 'L'essentiel 
sur… les immigrés et les étrangers' (Institut national de la statistique et des études 
économiques, 1 July 2021) <https://www.insee.fr/fr/statistiques/3633212> accessed 
29 October 2021.  
In some rare cases, members of Parliament have argued that the law in question 
granted  excessive  rights  to  foreigners  and  did  not  protect  French  nationals 
sufficiently. See in particular Cons const, décision n° 89-261 DC du 28 juillet 1989, 
Loi  relative  aux  conditions  de  séjour  et  d'entrée  des  étrangers  en  France; Cons  const, 
décision n° 91-294 DC du 25 juillet 1991, Loi autorisant l'approbation de la convention 
d'application de l'accord de Schengen…. The French Parliament is composed of two 
chambers:  the  Assemblée  nationale  (National  Assembly)  and  the  Sénat  (Senate). 
Members of the National Assembly are called députés (MPs). 
The  Council  of  State  also  reviews  the  conformity  of  administrative  acts  to  the 
European Convention of Human Rights, in particular article 8 which safeguards 
the right to respect for private and family life. CE, Ass, 19 avril 1991, M. Belgacem, 
n° 107470, Rec p 152; CE, Ass, 19 avril 1991, Mme Babas, n° 117680, Rec p 162.  

 
 
 
 
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policies  on  constitutional  grounds.24  Hence  the  necessity  to  examine 
carefully  the  approach  followed  by  the  Constitutional  Council  in  order  to 
determine the role it has played in the governance of migration policies. 

2. Institutional Context: The Rise of the Constitutional Council 

A general introduction to the Constitutional Council and its rise is necessary 
to understand the role it plays in French jurisprudence. Created by the 1958 
Constitution  which  founded  the  current  Fifth  Republic,  the  Council  is 
composed of two types of members.25 Nine ordinary members are appointed 
for nine-year non-renewable terms by three different political figures (three 
by the President of the Republic, three by the President of the Senate and 
three  by  the  President  of  the  National  Assembly).  A  third  of  them  are 
renewed every three years. A significant number of these ordinary members 
are former politicians who have served as members of Parliament and/or as 
government  ministers.26  In  addition  to  the  ordinary  members,  former 
Presidents of the Republic automatically become membres de droit (ex officio 
members) of the Council. However, not all of them have sat on the Council.27 

The Constitutional Council was created primarily to protect the prerogatives 
of the executive power, which had been reinforced by the Constitution of the 
Fifth Republic.28 Hence the institution's designation as a Council rather than 
a Court, which also reflects the traditional hostility towards judges in French 
legal culture. Initially, the Council could only review legislative bills before 
their  promulgation,  upon  referrals  by  the  President  of  the  Republic,  the 
Prime Minister, the President of the Senate or the President of the National 
Assembly.29 However, the Council later acquired new powers, both through 
constitutional reforms and on its own initiative.  

24 

25 

26 

27 

28 

29 

The European Court of Human Rights and the European Court of Justice have 
also emerged as significant battlegrounds for challenges to French immigration 
laws.  
Article 56 of the 1958 Constitution. 
Francis  Hamon  and  Michel  Troper,  Droit  constitutionnel  (Librairie  générale  de 
droit et de jurisprudence 2020) 804. 
Ibid 806. 
Ibid 802. 
Article 61 of the 1958 Constitution. 

 
 
 
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In a landmark 1971 decision, the Council itself expanded its normes de référence 
(reference  standards)  beyond  the  four  corners  of  the  1958  Constitution, 
resolving to consider also the documents referenced in the first paragraph of 
the Preamble to the 1958 Constitution.30 Following this decision, the bloc de 
constitutionnalité  (an  expression  used  by  constitutional  law  experts  such  as 
Louis Favoreu to designate the set of norms holding constitutional value in 
France) gradually expanded to include the 1789 Declaration of the Rights of 
Man and of the Citizen, the Preamble to the 1946 Constitution and the 2004 
Charter for the Environment, as well as various principles and objectives of 
constitutional  value.31  This  led  to  a  much  more  substantial  kind  of  review, 
extending inter alia to questions of fundamental rights protection. 

Meanwhile, in 1974, a constitutional reform authorized referrals by any group 
of sixty MPs or Senators.32 This became a new tool for opposition MPs and 
Senators,  sparking  an  increase  in  referrals.  This  trend  was  reinforced  by  a 
major  constitutional  reform  adopted  in  2008  which  opened  a  new 
preliminary  ruling  mechanism,  the  question  prioritaire  de  constitutionnalité 
(QPC), to all litigants.33 This procedure now allows any litigant, under certain 
conditions set by a 2009 organic law, to challenge the conformity of a legal 
provision  to  the  rights  and  freedoms  guaranteed  by  the  Constitution.34 
Admissible  requests  are  transferred  by  lower  courts  to  the  competent 
supreme court (Council of State or Court of Cassation), which may refer the 
matter to the Constitutional Council. This mechanism marked a significant 
change  for  at  least  three  reasons.  First,  it  opened  up  the  possibility  for 
litigants  (including  foreigners)35  to  challenge  the  constitutionality  of  laws, 
albeit only on the basis of rights guaranteed by the Constitution.36 Second, 

30 

31 

32 

33 

34 

35 

36 

Cons const, décision n° 71-44 DC du 16 juillet 1971, Loi complétant les dispositions des 
articles 5 et 7 de la loi du 1er juillet 1901 relative au contrat d'association. 
Louis Favoreu and others, Droit constitutionnel (Dalloz 2018) 136. 
Loi constitutionnelle n° 74-904 du 29 octobre 1974 portant révision de l'article 61 de la 
Constitution.  
Articles 29 and 30 of loi constitutionnelle n° 2008-724 du 23 juillet 2008 de modernisation 
des institutions de la Ve République.  
Loi organique n° 2009-1523 du 10 décembre 2009 relative à l'application de l'article 61-1 
de la Constitution.  
Article 61-1 of the Constitution does not set any condition of nationality.  
Questions of legislative procedure, amongst others, thus remain out of reach for 
mere litigants.  

 
 
 
 
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this  new  mechanism  allowed  litigants  to  challenge  the  constitutionality  of 
laws after their promulgation. Previously, once a law was promulgated, it was 
nearly  impossible  to  challenge  on  constitutional  grounds.  Under  this  new 
procedure, a wide range of laws previously immune from challenge could now 
be  brought  under  scrutiny  by  litigants.  Third,  as  had  been  expected,  this 
constitutional  reform  led  to  a  further  increase  in  the  number  of  decisions 
rendered  by  the  Council.37  All  these  changes  have  reinforced  the  potential 
role of the Constitutional Council as a guardian of the rights of foreigners. 

3. Legal Context: Constitutional Indeterminacy Regarding the Status of Foreigners 

There are only two references to foreigners in the 1958 Constitution, despite 
the  country's  immigration  history  and  the  prior  existence  of  a  general 
legislative framework on the admission and residence of foreigners. The only 
explicit reference can be found in article 53-1 of the 1958 Constitution.38 The 
other reference is implicit, incorporated by reference to paragraph 4 of the 
Preamble to the 1946 Constitution.39 Both of these provisions pertain to the 
right to asylum, as they regulate the status of 'any man persecuted in virtue of 
his actions in favor of freedom'.40 

37 

38 

39 

40 

Hamon and Troper (n 26) 842. 
'The Republic may enter into agreements with European States which are bound 
by undertakings identical with its own in matters of asylum and the protection of 
human  rights  and  fundamental  freedoms,  for  the  purpose  of  determining  their 
respective  jurisdiction  as  regards  requests  for  asylum  submitted  to  them. 
However,  even  if  the  request  does  not  fall  within  their  jurisdiction  under  the 
terms  of  such  agreements,  the  authorities  of  the  Republic  shall  remain 
empowered to grant asylum to any foreigner who is persecuted for his action in 
pursuit  of  freedom  or  who  seeks  the  protection  of  France  on  other  grounds'. 
Unless  otherwise  stated,  translations  of  constitutional  provisions  are  those 
provided on the English version of the Constitutional Council's website. 
'Any man persecuted in virtue of his actions in favor of liberty may claim the right 
of asylum upon the territories of the Republic'. 
The term étranger (which can also mean 'foreign' or, as part of the expression  à 
l'étranger,  'abroad')  can  be  found  in  three  other  provisions  of  the  Constitution, 
which  do  not  relate  to  the  status  of  foreigners.  Article  14  provides  that  'the 
President of the Republic shall accredit ambassadors and envoys extraordinary to 
foreign powers; foreign ambassadors and envoys extraordinary shall be accredited 
to him'. Article 35 provides that 'the Government shall inform Parliament of its 

 
 
 
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The Constitution is otherwise silent on the status of foreigners. While the 
'citizens',  the 
bloc  de  constitutionnalité  contains  various  mentions  of 
interpretation of this term cannot be established with certainty.41 In the rich 
and  varied  constitutional  tradition  of  France,42  citizens  are  not  necessarily 
nationals,  meaning  that  foreigners  are  not  necessarily  excluded  from  the 
category  of  citizens.  However,  references  to  nationaux  français  (French 
nationals)  and  to  le  peuple  français  (the  French  people)  seem  to  exclude 
foreigners  unambiguously.  Foreigners  do  not  participate  in  the  exercise  of 
national  sovereignty,  since  it  'shall  vest  in  the  people,  who  shall  exercise  it 
through  its  representatives  and  by  means  of  referendum'.43  They  are 
therefore not entitled to vote,44 with the minor exception of citizens of the 
European Union, who are eligible to vote for and, under certain restrictions, 
hold office as members of city councils.45  

Elsewhere in the bloc de constitutionnalité, in particular in the 1789 Declaration 
on the Rights of Man and of the Citizen, references are made to les hommes 
(men),  tout  homme  (every  man),  l'individu  (the  individual),  nul  (none)  and 

decision to have the armed forces intervene abroad, at the latest three days after 
the  beginning  of  said  intervention'.  Lastly,  article  73  provides  that  overseas 
departments and regions are not authorized to determine rules regarding certain 
areas, including 'foreign policy'. Emphases added. 
For a detailed analysis, see Danièle Lochak, 'L'étranger et les droits de l'homme' 
in  Service  public  et  libertés  :  mélanges  offerts  au  professeur  Robert-Édouard  Charlier 
(Editions  de  l'Université  et  de  l'enseignement  moderne  1981)  615-633;  Danièle 
Lochak, 'La citoyenneté : un concept juridique flou' in Dominique Colas, Claude 
Emeri and Jacques Zylberberg (eds), Citoyenneté et nationalité. Perspectives en France 
et au Québec (Presses Universitaires de France 1991) 179-207; Kissangoula (n 3). 
Since 1789, France has known sixteen different constitutions. 
Article  3  paragraph  1  of  the  1958  Constitution.  See  also  article  3  of  the  1789 
Declaration on the Rights of the Man and of the Citizen, which provides that 'the 
principle of any Sovereignty lies essentially in the Nation. No corporate body, no 
individual may exercise authority that does not expressly emanate from it'.  
Article 3 paragraph 4 of the 1958 Constitution: 'All French nationals of either sex 
who have reached their majority and are in possession of their civil and political 
rights  may  vote  as  provided  for  by  statute.'  Emphasis  added.  I  have  slightly 
modified the English translation provided by the Constitutional Council – which 
uses the term 'citizens' – to reflect the nuance between the terms nationals and 
citizens.  
Article 88-3 of the 1958 Constitution. 

41 

42 

43 

44 

45 

 
 
 
 
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chacun (each person). These expressions appear to encompass both nationals 
and foreigners,46 although doubts have been raised when interpreting some 
of these terms.47 Beyond this terminological matter, one searches in vain for 
a  constitutional  provision  explicitly  granting  immigration  powers  to  either 
the legislator or the executive. Although article 34 of the Constitution grants 
the  legislator  the  power  to  set  rules  regarding  nationality  as  well  as  'civic 
rights and the fundamental guarantees granted to citizens for the exercise of 
their civil liberties', it confers no explicit power upon Parliament regarding 
immigration matters.48  

Former  Constitutional  Council  Secretary  General  and  Councillor  of  State 
Bruno Genevois confirms this constitutional indeterminacy as he notes that 

the main obstacle faced by the Constitutional Council […] resides in the fact 
that  the  constituent  did  not  take  into  account  the  situation  of  foreigners. 
Unlike the Fundamental Charter of other European countries, there are no 
general provisions on non-nationals in the 1958 Constitution […].49  

Genevois instead observes imprecision and 'great heterogeneity' within the 
bloc  de  constitutionnalité  with  respect  to  foreigners.50  He  believes  that 
'attempting  to  ground  the  constitutional  rights  of  foreigners  following  a 
literal  approach  would  have  led  to  a  great  many  approximations  and  even 

46 

Henri  Labayle,  'Le  statut  constitutionnel  des  étrangers  –  Rapport  français'  in 
Pierre Bon (ed), Etudes de droit constitutionnel franco-espagnol (Economica 1994) 31.  
47  Members  of  the  Constitutional  Council  have  expressed  hesitation  as  to  the 
meaning of the word 'individual', notwithstanding the fact that it seems to refer 
universally  to  all  persons.  During  a  deliberation  session,  Councillor  Jacques 
Robert stated: 'Indeed, the 1946 Preamble asserts that ''the Nation provides the 
individual and the family with the  conditions necessary to their development''. 
Does the nation provide these conditions to all or to nationals only? I am not sure 
whether everyone, whoever they are, is targeted by this provision.' Minutes of the 
deliberation session of 22 January 1990, 33 (my translation). 
Articles 34 and 37 of the Constitution define the substantive scope of statutes and 
regulations, respectively. According to article 37, any matter falling outside of the 
areas listed by article 34 is subject to regulation. Following a strict interpretation 
of both provisions, one might therefore conclude that immigration is a matter of 
regulation, not statute. However, the Constitutional Council has long recognized 
a broad scope for statutes, leaving considerable space for legislative intervention. 
Genevois (n 3) 254-255 (my translation). 
Ibid 255 (my translation).  

49 

48 

50 

 
 
 
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Endorsing Migration Policies in Constitutional Terms 

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inconsistencies.'51  In  a  similar  vein,  Professor  Henri  Labayle  wrote  in  the 
1990s that 

the constitutional status of foreigners in France is marked by uncertainty and 
ambiguity.  Uncertainty,  […]  due  to  the  silence  of  the  Constitution,  and 
ambiguity, above all, regarding the place to which domestic law assigns non-
nationals.  While  it  is  true  that  the  fundamental  text  and  the  rights  it 
guarantees should bear an identity and a project, one is forced to recognize 
that the French Constitution only expresses indifference, if not ignorance, 
when it comes to immigration law.52 

Due  to  this  constitutional  indeterminacy,  the  Constitutional  Council  has 
been compelled to 'fill in part of the gaps'53 regarding the respective scope of 
the constitutional rights of foreigners and the immigration powers held by 
the legislator and the executive. This has undoubtedly provided the Council 
with a wide margin of action. Given these weak constitutional constraints, 
the Council could have followed a rights-based approach. As Parts III and IV 
will  now  show,  it  has  instead  aligned  much  of  its  case  law  with  the 
immigration control priorities set by the legislator and the administration. 

III. ENDORSING IMMIGRATION POLICIES ON PRINCIPLE 

This third part will explore the ways in which the Constitutional Council has 
endorsed immigration policies as a matter of principle. The Council has done 
so by recognizing extensive police powers in the legislator and exercising its 
usual  self-restraint  on  matters  of  constitutional  challenge.  By  deeming 
constitutional  most  of  the  legal  provisions  brought  under  its  review,  the 
Council has expressed stable support for immigration policy preferences set 
by the legislator and the Government. This part will inquire into the specific 
methods of reasoning relied upon by the Council in support to such policy 
preferences. 

51 

52 

53 

Ibid  (my  translation).  He  mentions  the  example  of  article  34  of  the  1958 
Constitution, according to which 'statutes shall determine the rules concerning: 
- civic rights and the fundamental guarantees granted to citizens for the exercise of 
their civil liberties […]'. Ibid (my translation, emphasis in original). 
Labayle (n 46) 48 (my translation). 
Ibid 42 (my translation). 

 
 
 
 
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1. Recognizing Extensive Police Powers 

As soon as the Constitutional Council started to review immigrations laws, it 
recognized  broad  legislative  powers  in  the  field  of  immigration.  It  has 
provided  two  complementary  for  doing  so.  Both  were  spelled  out  in  a 
landmark decision rendered on 13 August 1993, which is considered to have 
established the 'constitutional status of foreigners'.54 First, foreigners can be 
treated  differently  by  the  legislator  since  they  are  'placed  in  a  different 
situation than that of nationals' in the immigration context.55 Consequently, 
immigration  rules  do  not  violate  the  principle  of  equality,  as  they  pursue 
general interest goals. This justification has been applied to uphold concrete 
measures  criticized  by  members  of  Parliament  as  discriminatory.56  The 
Council has also stated that immigration measures can only affect foreigners 
and are therefore not discriminatory.57 Another way in which the Council has 
justified the differential treatment between nationals and foreigners has been 
to  assert  that  'no  principle  or  rule  of  constitutional  value  guarantees  to 
foreigners  general  and  absolute  rights  of  access  to  and  residence  in  the 
national territory'.58 This formula has been reiterated by the Council many 
times.59  

54 

55 

56 

57 

58 

59 

Cons  const,  décision  n°  93-325  DC  du  13  août  1993,  Loi  relative  à  la  maîtrise  de 
l'immigration et aux conditions d'entrée, d'accueil et de séjour des étrangers en France. See 
Bruno  Genevois,  'Le  statut  constitutionnel  pour  les  étrangers'  [1993]  Revue 
française de droit administratif 871.  
Ibid cons 2 (my translation). For an earlier assertion of this argument, see Cons 
const, décision n° 89-266 DC du 9 janvier 1990, Loi modifiant l'ordonnance n° 45-
2658 du 2 novembre 1945 [...], cons 7.  
See e.g. Cons const, décision n° 93-325 DC (n 54) cons 13, 133. 
Ibid cons 31, 72.  
Ibid cons 2 (my translation).  
Cons const, décision n° 97-389 DC du 22 avril 1997, Loi portant diverses dispositions 
relatives à l'immigration, cons 36; Cons const, décision n° 2003-467 DC du 13 mars 
2003, Loi pour la sécurité intérieure, cons 35, 83; Cons const, décision n° 2003-484 
DC du 20 novembre 2003, Loi relative à la maîtrise de l'immigration, au séjour des 
étrangers en France et à la nationalité, cons 28, 38, 46; Cons const, décision n° 2005-
528 DC du 15 décembre 2005, Loi de financement de la sécurité sociale pour 2006, cons 
14;  Cons  const,  décision  n°  2006-539  DC  du  20  juillet  2006,  Loi  relative  à 
l'immigration et à l'intégration, cons 6; Cons const, décision n° 2011-631 DC du 9 juin 
2011,  Loi  relative  à  l'immigration,  à  l'intégration  et  à  la  nationalité,  cons  64;  Cons 

 
 
 
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The second way in which the Council has justified broad legislative powers in 
the field of immigration has consisted in stating that foreigners' 'entry and 
residence  conditions  may  be  restricted  by  administrative  police  measures 
conferring  extensive  powers  on  public  authorities  and  relying  on  specific 
rules'.60  This  position  has  also  been  recalled  in  a  significant  number  of 
subsequent  decisions.61  The  Council  has  also  confirmed  that  it  is  for  the 
legislator  'to  determine,  in  conformity  with  constitutional  principles,  and 
considering its public interest goals, measures applicable to foreigners' entry 
and residence in France'.62 Deeming most immigration control measures part 
of  administrative  police  prerogatives  has  had  far  reaching  consequences 
which will now be explored. 

A. Rejecting Criminal Law Guarantees 

The first consequence of characterizing most immigration control measures 
as administrative police measures is that it places them outside the scope of 
criminal law guarantees. Akin to the United States Supreme Court's old case 
law considering that deportation is not 'punishment for a crime',63 this move 

const, décision n° 2017-674 QPC du 1 décembre 2017, M. Kamel D., cons 4; Cons 
const, décision n° 2018-762 DC du 15 mars 2018, Loi permettant une bonne application 
du régime d'asile européen, cons 9; Cons const, décision n° 2018-717/718 QPC du 6 
juillet 2018, M. Cédric H. et autre, cons 9; Cons const, décision n° 2018-770 DC du 
6 septembre 2018, Loi pour une immigration maîtrisée, un droit d'asile effectif et une 
intégration réussie, cons 87.  
Cons const, décision n°  93-325 DC (n 54) cons  2 (my  translation). For an  earlier 
assertion of this principle, see Cons const, décision n° 89-266 DC (n 55) cons 6. It 
seems the Council was initially merely describing the regime established by the 
ordonnance du 2 novembre 1945 relative à l'entrée et au séjour des étrangers en France 
before the current Constitution was even adopted. In subsequent decisions, the 
assertion  nevertheless  became  autonomous  and  appears  to  have  become  an 
implicit principle of French constitutional law.  
Cons const, décision n° 2011-631 DC (n 59) cons 64; Cons const, décision n° 2017-
674 QPC (n 59) cons 4; Cons const, décision n° 2018-762 DC (n 59) cons 9; Cons 
const, décision n° 2018-770 DC (n 59) cons 87. 
Cons const, décision n° 97-389 DC (n 59) cons 24 (my translation).  
Fong  Yue  Ting  v  United  States,  149  US  698,  730  (1893).  Three  justices  issued 
dissenting opinions in which they expressed their 'utter' disagreement. 

60 

61 

62 

63 

 
 
 
 
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has allowed the Council to refrain from examining claims asserting a range of 
rights attached to criminal procedures. 

The Council has determined that in the exercise of its immigration powers 
the  legislator  may  resort  to  either  criminal  or  non-criminal  measures.64  As 
regards  criminal  measures,  the  legislator  is  quite  free  to  determine  the 
definition of criminal offenses and the penalties associated with them.65 Such 
measures must however respect criminal law guarantees provided for in the 
bloc de constitutionnalité, in particular those contained in the 1789 Declaration 
of the Rights of Man and of the Citizen. The legislator may also resort to non-
criminal – i.e. administrative – measures. The Council rarely challenges the 
legislator's characterization of a measure as non-criminal.66 As early as 1980, 
the  Council  established  that  expulsions  (a  specific  type  of  deportation  that 
applies to individuals considered as a serious threat to public order pursuant 
to article L. 631-1 of CESEDA) were 'police measures which do not follow the 
same objectives as criminal repression'.67 Based on this characterization, the 
Council upheld a provision that 'grants the administration with the power to 
take  an  expulsion  measure  based  on  facts  which  may  justify  a  criminal 
conviction, but for which no permanent conviction has been pronounced by 
the judiciary authority'.68 The Council therefore set aside the claim made by 
members of Parliament that the provision would violate the presumption of 

64 

65 

66 

67 

68 

Cons const, décision n° 89-261 DC (n 22) cons 12; Cons const, décision n° 93-325 
DC (n 54) cons 7.  
See inter alia Cons const, décision n° 96-377 DC du 16 juillet 1996, Loi tendant à 
renforcer la répression du terrorisme et des atteintes aux personnes dépositaires de l'autorité 
publique ou chargées d'une mission de service public et comportant des dispositions relatives 
à la police judiciaire, cons 11; Cons const, décision n° 98-399 DC du 5 mai 1998, Loi 
relative à l'entrée et au séjour des étrangers en France et au droit d'asile, cons 7. 
For  an  exception,  see  Cons  const,  décision  n°  93-325  DC  (n 54)  cons  49.  The 
measure  at  issue  was  an  interdiction  du  territoire  (re-entry  ban)  that  was 
automatically applied to individuals targeted by an arrêté de reconduite à la frontière 
(deportation measure). However, in 2011, the Council reversed its position and 
considered that an interdiction de retour (re-entry ban) was a mere police measure. 
Cons const, decision n° 2011-631 DC (n 59) cons 52. 
Cons const, décision n° 79-109 DC du 9 janvier 1980, Loi relative à la prévention de 
l'immigration  clandestine  et  portant  modification  de  l'ordonnance  n°  45-2658  du  2 
novembre 1945 […], cons 6 (my translation).  
Ibid (my translation). 

 
 
 
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Endorsing Migration Policies in Constitutional Terms 

79 

innocence principle, guaranteed by article 9 of the Declaration of the Rights 
of Man and of the Citizen.  

A  few  other  examples  will  further  illustrate  the  serious  consequences  of 
characterizing  immigration  measures  as  non-criminal.  In  the  landmark 
August 1993 decision referenced above, the Council characterized refusal of 
entry decisions as relying on administrative police rules specific to foreigners. 
Accordingly, such decisions were not subject to criminal law guarantees and 
could  be  executed  automatically.69  In  a  March  2003  decision,  the  Council 
deemed  that  the  withdrawal  of  a  temporary  residence  card  for  reasons  of 
public  order  was  'not  a  sanction  but  a  police  measure',  to  which  the 
presumption  of  innocence  therefore  did  not  apply.70  In  a  September  2018 
decision, the Council refused to classify immigration detention as a criminal 
sanction  even  though  the  maximum  length  of  such  detention  had  been 
extended three months.71 Consequently, it was not subject to the principle of 
legality. Finally, in December 2019, the Council decided that refusal of entry 
'sanctions  having  the  character  of 
and  border  detention  were  not 
punishment,  but  police  administrative  measures',  meaning  that  police 
interviews  conducted  in  such  connection  could  continue  to  take  place 
without the assistance of a lawyer.72 

B. Favoring Public Order over Rights 

The  second  and  main  consequence  of  characterizing  immigration  control 
measures  as  administrative  police  measures  is  that  it  frames  the  Council's 
inquiry as one of balancing the rights of foreigners against the safeguarding of 
public order, which was first recognized as an objectif à valeur constitutionnelle 
(objective  of  constitutional  value)  outside  of  the  immigration  context  in 
1982.73  Under  traditional  principles  of  French  administrative 
law, 
administrative  police  measures  may  restrict  fundamental  rights  in  order  to 
preserve  public  order.  The  Constitutional  Council  took  direct  inspiration 

69 

70 

71 

72 

73 

Cons const, décision n° 93-325 DC (n 54) cons 7. 
Cons const, décision n° 2003-467 DC (n 59) cons 85 (my translation). 
Cons const, décision n° 2018-770 DC (n 59) cons 69.  
Cons const, décision n° 2019-818 QPC du 6 décembre 2019, Mme Saisda C., cons 
12 (my translation).  
Cons  const,  décision  n°  82-141  DC  du  27  juillet  1982,  Loi  sur  la  communication 
audiovisuelle, cons 4-5. 

 
 
 
 
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from the Council of State's landmark GISTI ruling of 197874 when, in 1986, it 
first decided that public order considerations could prevail over foreigners' 
rights.75  Later  on,  the  Council  presented  its  reasoning  as  a  process  of 
'conciliation' – a balancing operation pitting the public order principle against 
foreigners' rights. This would seem to imply that that there is no hierarchy 
between those two elements and that they hold the same value. However, in 
most  cases,  the  Council  has  favored  public  order  over  foreigners'  rights. 
Between 1986 and 2019, in the thirty-three instances in which the  Council 
balanced  public  order  against  rights,  whether  explicitly  or  implicitly,76 
twenty-eight  provisions  were  upheld77  and  a  further  three  were  upheld 
subject to réserves d'interprétation (explained below in Part III.2),78 while only 

74 

75 

76 

77 

78 

CE, Ass, 8 décembre 1978, GISTI, CFDT et CGT, n° 10097, 10677, 10679, Rec p 
493.  
Cons const, décision n° 86-216 DC du 3 septembre 1986, Loi relative aux conditions 
d'entrée et de séjour des étrangers en France, cons 18. For an analysis of the Council of 
State's influence, see Kissangoula (n 3) 200-205. 
This includes six instances in which no explicit mention was made of conciliation, 
but where public order considerations were clearly invoked (sometimes through 
other notions such as public interest or administrative police powers) to restrict 
constitutional  rights.  Cons  const,  décision  n°  93-325  DC  (n 54)  cons  25,  60,  87; 
Cons const, décision n° 97-389 DC (n 59) cons 24, 52; Cons const, décision n° 2003-
485 DC du 4 décembre 2003, Loi modifiant la loi n° 52-893 du 25 juillet 1952 relative 
au droit d'asile, cons 56.  
Cons const, décision n° 86-216 DC (n 75) cons 18; Cons const, décision n° 93-325 
DC (n 54) cons 19-22, 25, 56, 60, 63, 87; Cons const, décision n° 97-389 DC (n 59) 
cons 10-14, 21, 24, 36, 71-72; Cons const, décision n° 2003-467 DC (n 59) cons 110; 
Cons  const,  décision  n°  2003-484  DC  (n 59)  cons  23,  38-39,  57;  Cons  const, 
décision  n°  2003-485  DC  (n 76)  cons  56;  Cons  const,  décision  n°  2005-528  DC 
(n 59) cons  14, 16;  Cons  const, décision n° 2006-539 DC (n 59) cons  13-14;  Cons 
const, décision n° 2007-557 DC du 15 novembre 2007, Loi relative à la maîtrise de 
l'immigration, à l'intégration et à l'asile, cons 11; Cons const, décision n° 2011-631 DC 
(n 59) cons 72, 78-79; Cons const, décision n° 2016-580 QPC du 5 octobre 2016, M. 
Nabil  F.,  cons  12;  Cons  const,  décision  n°  2018-762  DC  (n 59)  cons  9-16;  Cons 
const, décision n° 2018-770 DC (n 59) cons 63, 92, 99; Cons const, décision n° 2019-
797 QPC du 26 juillet 2019, Unicef France et autres, cons 11. 
Cons const, décision n° 97-389 DC (n 59) cons 52; Cons const, décision n° 2017-
674 QPC (n 59) cons 11-12; Cons const, décision n° 2018-770 DC (n 59) cons 76. 

 
 
 
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two were struck down.79 Over the course of these decisions, the Council has 
favored public order over the right to a normal family life, the best interests 
of the child, the right to private life, freedom of movement (within France), 
the right to individual liberty (including freedom from arbitrary detention), 
the right to an effective remedy and the right to asylum. Though expressed 
through 
this 
configuration is not the result of a purely mechanical operation dictated by 
strict rationality. Rather, it appears to express a relatively stable axiological 
hierarchy – i.e. a hierarchy of values – according to which public order almost 
always prevails over foreigners' rights.80  

language  of  constitutional 

reasoning, 

technical 

the 

The  concept  of  public  order  has  remained  quite  vague  throughout  the 
Council's case law. Despite its weak textual basis,81 it is never clearly defined 
and appears to cover a wide range of considerations. At times, one wonders 
how  a  specific  measure  under  review  effectively  contributes  to  the 
preservation  of  public  order.  For  instance,  in  a  2006  decision,  the  Council 
ruled,  without  any  explanation,  that  the  decision  to  extend  the  minimum 
length of time a foreigner needed to reside in France before she could bring 
her  family  over  gave  rise  to  public  order  considerations  that  trumped  her 
right to a normal family life.82  

Furthermore, the Council has widened the concept of public order in some 
respects  over  the  past  two  decades.  Since  2003,  the  concept  includes  the 
'fight  against  irregular  migration'.83  This  expansion  seems  to  have  been  a 
reaction to the increasing importance of this goal in the legislator's and the 
Government's respective immigration policies. It also seems to have been a 
direct response to arguments raised by the Government in its observations 

79 

80 

81 

82 

83 

Cons const, décision n° 97-389 DC (n 59) cons 43-45; Cons const, décision n° 2017-
674 QPC (n 59) cons 10. 
On axiological hierarchies, see Véronique Champeil-Desplats, Théorie générale des 
droits  et  libertés.  Perspective  analytique  (Dalloz  2019)  305-330;  Riccardo  Guastini, 
Teoría analítica del derecho (Zela 2017) 119-122.  
For  instance,  the  Council  has  relied  on  article  34  of  the  Constitution,  which 
makes no explicit reference to public order.  
Cons const, décision n° 2006-539 DC (n 59) cons 11-14.  
Cons const, décision n° 2003-484 DC (n 59) cons 23; Cons const, décision n° 2011-
631 DC (n 59) cons 64; Cons const, décision n° 2018-717/718 QPC (n 59) cons 9; 
Cons const, décision n° 2019-797 QPC (n 77) (my translation). 

 
 
 
 
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before  the  Council,  which  already  in  1997  presented  the  'fight  against 
irregular migration' as a significant public order issue.84 There is, however, a 
paradox  in  the  postures  adopted  by  the  legislator  and  the  Government. 
While  they  claim  to  'fight  against  irregular  migration',  their  reforms  have 
actually  tended  to  'produce'  more  and  more  foreigners  in  an  irregular 
situation.85  This  contradiction  was  indeed  pointed  out  by  members  of 
Parliament  in  their  brief  to  the  Council  regarding  the  same  1997  case.86 
Nevertheless, it has not prevented the 'fight against irregular migration' from 
becoming a recurrent argument of the Government in its observations before 
the  Council  in  defense  of  provisions  of  legislative  reforms.  In  turn,  the 
Council appears increasingly willing to rely on this policy objective, which it 
has thereby translated into a fully-fledged constitutional concept. 

Beyond  the  vague  nature  and  broad  scope  of  the  concept  of  public  order, 
concrete justifications as to why it should prevail over rights are often very 
limited.  As  is  the  case  for  much  of  the  Constitution  Council's  reasoning, 
which is typically formalistic and somewhat opaque,87 explanations provided 
are cursory and at times incomplete from a logical standpoint. After asserting 
that  it  will  resort  to  balancing  to  decide  on  the  validity  of  a  provision,  the 
jumps  to  its  conclusion  or  simply 
Council  sometimes  immediately 
reformulates the content of the provision.88 It is also not always clear whether 
the balancing exercise is supposed to be performed by the legislator or by the 
Council. The degree of review thus varies from one decision to another.89  

84 

85 

86 

87 

88 

89 

See  the  Government's  observations  lodged  before  the  Council  in  Cons  const, 
decision n° 97-389 DC (n 59) (my translation). 
Nathalie Ferré, 'La production de l'irrégularité', in Fassin, Morice and Quiminal 
(n 13), 47-64 (my translation). 
Brief of MPs lodged before the Constitutional Council on 27 March 1997. 
Arthur  Dyevre,  'The  French  Constitutional  Council'  in  András  Jakab,  Arthur 
(eds),  Comparative  Constitutional  Reasoning 
Dyevre  and  Giulo  Itzcovich 
(Cambridge University Press 2017), 323-355.  
See e.g. Cons const, décision n° 2011-631 DC (n 59) cons 79. 
See inter alia Cons const, décision n° 2018-762 DC (n 59) cons 9-16; Cons const, 
décision n° 2018-770 DC (n 59) cons 70-76; Cons const, décision n° 2011-631 DC 
(n 59)  cons  66,  72.  Although  in  recent  years,  the  Council  has  begun  employing 
proportionality tests, it typically fails to follow rigorously the three-step process 
to determine whether a measure is adequate, necessary and proportionate.  See 

 
 
 
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2. Exercising Traditional Self-Restraint 

French  legal  culture  has  traditionally  been  hostile  to  judicial  power.  Even 
with  the  expansion  of  its  role,  the  Council  has  remained  careful  to  appear 
deferential to Parliament so as to preserve its institutional legitimacy. This is 
true even when it comes to the protection of fundamental rights, an area in 
which  the  Constitutional  Council's  case  law  has  not  escaped  criticism.90 
Indeed,  the  Council  has  demonstrated  self-restraint  in  most  areas  of  law. 
Since 1975, it has stated many times that the Constitution 'does not grant the 
Constitutional  Council  a  general  power  of  appreciation  and  decision 
identical to that of Parliament, it merely gives it competence to review the 
conformity of challenged laws to the Constitution'.91 

Quite  significantly,  this  very  statement  has  been 
invoked  by  the 
Constitutional Council to uphold diametrically opposed laws one after the 
other.  In  2011,  the  Council  confirmed  the  constitutionality  of  a  set  of 
provisions interpreted as restricting marriage to heterosexual couples.92 Only 
two  years  later,  the  Council  reviewed  a  legal  reform  opening  marriage  to 
same-sex couples and found it constitutional on the very same grounds.93 In 
both cases, Councillors wrote that it was for the legislator, not the Council, 
to decide what sort of "different situation" could justify "different treatment" 
without violating the principle of equality. This allowed the Council to avoid 
any  discussion  of  the  substance  of  the  matter.  Decisions  reviewing 
immigration laws tend to follow a similar approach. In fact, the Council has 

:  enjeux  de 

la  proportionnalité 

'Le  dynamisme  de 

Michael  Koskas, 
la 
fragmentation  tripartite  du  principe  dans  le  processus  juridictionnel'  (2019)  15 
Revue des Droits de l'Homme s 42. 
For  a  critical  assessment,  see  Danièle  Lochak,  'Le  Conseil  constitutionnel, 
protecteur des libertés ?' (1991) 13 Pouvoirs 41; Véronique Champeil-Desplats, 'Le 
Conseil constitutionnel, protecteur des droits et libertés ?' (2011) 9 Cahiers de la 
recherche sur les droits fondamentaux 11.  
Cons  const,  décision  n°  74-54  DC  du  15  janvier  1975,  Loi  relative  à  l'interruption 
volontaire de la grossesse, cons 1 (my translation). See footnotes immediately below 
for references of subsequent cases relying on the same statement.  
Cons const, décision n° 2010-92 QPC du 28 janvier 2011, Mme Corinne C. et autre, 
cons 5, 9.  
Cons const, décision n° 2013-669 DC du 17 mai 2013,  Loi ouvrant le mariage aux 
couples de même sexe, cons 14, 22.  

90 

91 

92 

93 

 
 
 
 
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made  the  very  same  statement  regarding  its  limited  competence  in  several 
decisions reviewing immigration laws.94 With the notable exception of a 1989 
decision in which the Council confirmed the constitutionality of provisions 
that guaranteed foreigners' rights,95 this position has mostly led the Council 
to  refrain  from  striking  down  provisions  which  could  be  considered 
detrimental to foreigners' rights. 

The Council has also manifested self-restraint in granting the legislator free 
rein to diminish fundamental guarantees it had previously adopted to ensure 
respect for  constitutional  rights.  For  a  time,  this  seemed  to  contradict  the 
Council's case law in other areas. Over the course of the last two decades of 
the  20th  century,  the  Council  issued  several  decisions  that  appeared  to 
impose  an  'effet  cliquet'  ('ratchet  theory')  whereby  Parliament  could  only 
strengthen  the  legal  guarantees  of  fundamental  constitutional.96  This  case 
law had serious limitations, though, as it applied only to 'fundamental rights' 
(as  determined  by  the  Council  itself)  and  it  still  allowed  the  legislator  to 
balance these rights against principles of constitutional value. The theory was 
applied sporadically and eventually abandoned.97 In any case, when it comes 
to  reviewing  immigration  laws,  the  Council  has  always  appeared  willing  to 
accept  the  placement  of  restrictions  upon  even  the  most  fundamental 

94 

95 

96 

97 

Cons const, décision n° 89-261 DC (n 22) cons 15; Cons const, décision n° 2011-217 
of 3 février 2012, M. Mohammed Akli B., cons 4; Cons const, décision n° 2015-501 
QPC du 27 novembre 2015, M. Anis T., cons 8; Cons const, décision n° 2017-674 
QPC (n 59) cons 25; Cons const, décision n° 2018-717/718 QPC (n 59) cons 18.  
Cons const, décision n° 89-261 DC (n 22). 
Cons const, décision n° 83-165 DC du 20 janvier 1984, Loi relative à l'enseignement 
supérieur, cons 42; Cons const, décision n° 84-181 DC du 11 octobre 1984, Loi visant 
à  limiter  la  concentration  et  à  assurer  la  transparence  financière  et  le  pluralisme  des 
entreprises de presse, cons 37; Cons const, décision n° 93-325 DC (n 54) cons 81; Cons 
const, décision n° 94-345 DC du 29 juillet 1994, Loi relative à l'emploi de la langue 
française, cons 5.  
Cons  const,  décision  n°  2002-461  DC  du  29  août  2002,  Loi  d'orientation  et  de 
programmation pour la justice, cons 67; Const. const., décision n° 86-210 DC du 29 
juillet  1986,  Loi  portant  réforme  du  régime  juridique  de  la  presse,  cons  2.  For 
developments  on  how  the  'ratchet  theory'  was  abandoned,  see  Véronique 
Champeil-Desplats, 'Le Conseil constitutionnel a-t-il une conception des libertés 
publiques ?' (2012) 7 Jus Politicum 15-17.  

 
 
 
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constitutional rights.98. As early as 1986, the Council was keen to observe that 
its review did not consist in comparing provisions  of consecutive laws, but 
solely in comparing the law in question with constitutional requirements.99 
This position has been reiterated in various decisions reviewing immigration 
laws.100  

Since 1975, the Council has also refused to examine the conformity of laws 
with international conventions, following a strict interpretation of articles 55 
and 61 of the Constitution.101 This position has likewise  been  reiterated in 
several  decisions  reviewing  immigration  laws,102  and  indeed  has  significant 
consequences  in  this  area  of  law,  where  international  treaties  can  at  times 
provide  more  protective  guarantees  than  the  domestic  normative 
framework. For instance, the Council has refused to review the conformity 
of immigration laws with the 1951 Geneva Convention Relating to the Status 
of  Refugees103  and  the  1950  European  Convention  on  Human  Rights.104 
While  the  Council  has  indirectly  recognized  some  international  norms 
through  its  interpretation  of  related  constitutional  norms  (e.g.  right  to 
asylum, best interests of the child, respect for family life), it has nonetheless 

98 

99 

One minor exception is the right to asylum, which was considered a fundamental 
right in a 1993 decision under the short-lived ratchet theory (Cons const, décision 
n° 93-325 DC (n 54) cons 81). However, this was not reiterated in later decisions 
and  the  Council  has  since  confirmed  the  constitutionality  of  various  legal 
provisions restricting the right to asylum.  
Cons const, décision n° 86-216 DC (n 75) cons 14.  

101 

100  Cons const, décision n° 89-261 DC (n 22) cons 15; Cons const, décision n° 93-325 
DC (n 54) cons 2; Cons const, décision n° 2011-631 DC (n 59) cons 67 ; Cons const, 
décision n° 2018-770 DC (n 59) cons 71.  
Cons const, décision n° 74-54 DC (n 91) cons 1-7. Article 55 of the Constitution 
provides  that  'treaties  or  agreements  duly  ratified  or  approved  shall,  upon 
publication,  prevail  over  Acts  of  Parliament,  subject,  with  respect  to  each 
agreement or treaty, to its application by the other party'. Given that article 61 
provides  that  the  Constitutional  Council  'shall  rule  on  [the]  conformity  of 
[referred  bills]  to  the  Constitution',  one  could  argue  that  the  Council  should 
review  the  conformity  of  referred  laws  to  international  treaties  so  as  to  ensure 
respect for article 55 of the Constitution.  
Cons const, décision n° 93-325 DC (n 54) cons 2; Cons const, décision n° 97-389 
DC (n 59) cons 13.  
Cons const, décision n° 98-399 DC (n 65) cons 11-12.  
Cons const, décision n° 2018-770 DC (n 59) cons 54. 

104 

102 

103 

 
 
 
 
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sustained autonomous interpretations of these norms that do not necessarily 
conform  to  those  of  supra-national  bodies  such  as  the  European  Court  of 
Human Rights.105 

The  Council  has  also  limited  its  review  of  laws  not  yet  promulgated  by 
examining  only  the  provisions  specifically  referred  to  it  by  political 
authorities. From its very first decisions, the Council has recognized its own 
competence  to  review  all  provisions  of  a  deferred  bill,  beyond  the  specific 
issues  raised  by  political  authorities.106  Yet,  in  most  decisions  reviewing 
immigration laws, the Council examines only those norms specifically at issue 
and  leaves  aside  important  questions  regarding  other  norms.107  Exceptions 
are  rare.108  While  this  problem  is  not  specific  to  immigration  laws,  it  is 
particularly problematic in this area of law because it involves fundamental 
rights  issues.  Until  2010,  when  the  QPC  preliminary  ruling  procedure  was 
finally  implemented,  any  provision  not  reviewed  before  its  promulgation 
became exceedingly difficult to challenge later on. Many provisions that were 
problematic from a fundamental rights perspective were thereby permitted 
to evade scrutiny. Although the Council decided in a 1985 case (unrelated to 
immigration)  that  it  could  examine  already  promulgated  provisions  if  they 

105 

106 

107 

108 

Ibid. 
Cons const, décision n° 60-8 DC du 11 août 1960, Loi de finances rectificative pour 
1960,  cons  5.  This  position  was  explicitly  confirmed  in  a  case  regarding  an 
immigration law in 1992. Cons const, décision n° 92-307 DC du 25 février 1992, Loi 
modifiant l'ordonnance n° 45-2658 du 2 novembre 1945 [...], cons 1.  
Cons const, décision n° 79-109 DC (n 67); Cons const, décision n° 89-261 DC (n 
22) cons 32; Cons const, décision n° 89-266 DC (n 55) cons 9; Cons const, décision 
n° 93-325 DC (n 54) cons 134; Cons const, décision n° 97-389 DC (n 59) cons 77; 
Cons const, décision n° 98-399 DC (n 65) cons 21; Cons const, décision n° 2003-
485 DC (n 76) cons 65; Cons const, décision n° 2006-539 DC (n 59) 30; Cons const, 
décision n° 2007-557 DC (n 77) cons 30; Cons const, décision n° 2011-631 DC (n 59) 
cons 96; Cons const, décision n° 2016-728 DC du 3 mars 2016, Loi relative au droit 
des étrangers en France, cons 7; Cons const, décision n° 2018-762 DC (n 59) cons 24.  
But see Cons const, décision n° 86-216 DC (n 75) cons 21-22; Cons const, décision 
n° 92-307 DC (n 106) cons 35-37; Cons const, décision n° 2003-484 DC (n 59) cons 
98-101; Cons const, décision n° 2018-770 DC (n 59) cons 115-118.  

 
 
 
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were  modified,  completed  or  affected  by  a  new  law,109  it  does  not  seem  to 
have made much use of this power in decisions reviewing immigration laws.110  

Lastly, the Council has attenuated the impact of its decisions in two ways. 
The  first  is  the  aforementioned  'réserves  d'interprétation',  which  allow  the 
Council  to  maintain  deference  to  the  legislator  by  upholding  questionable 
provisions under particular interpretations that the Council provides. This 
approach has clear limitations. First, when dealing with laws that are not yet 
promulgated,  the  Council  may  encounter  difficulties  in  anticipating  how  a 
provision  will  be  enforced.111  Second,  the  Council's  interpretations  are 
sometimes quite vague, leaving plenty of room for subsequent interpretations 
by  the  administration  and  judges.112  Furthermore,  some  of  the  Council's 
interpretations  appear  to  afford  rather  weak  protection  against  potential 
violations  of  foreigners'  rights.113  Lastly,  there  is  no  direct  mechanism 
ensuring that the Council's interpretations will be faithfully applied by the 
administration and judges.  

The  second  way  in  which  the  Council  has  attenuated  the  impact  of  its 
decisions  –  specifically  preliminary  rulings  under  the  QPC  procedure  –  is 
through modulation des effets dans le temps (postponing their effectiveness to a 
later  date).  By  such  means,  the  Council  can  strike  down  a  provision  but 
specify a grace period of several months before the censored provision will 
actually  be  abrogated.  The  rationale  for  this  remedy  is  that  immediate 
abrogation would in some cases have 'manifestly excessive consequences'.114 

109 

110 

111 

112 

113 

114 

Cons const, décision n° 85-187 DC du 25 janvier 1985, Loi relative à l'état d'urgence 
en Nouvelle-Calédonie et dépendances, cons 10. The exception did not apply to new 
provisions which merely implemented older provisions. This shielded a number 
of provisions from being challenged.  
In a 2018 decision, the Council refused to examine provisions of an older law since 
they were left unmodified by the law under review. Cons const, décision n° 2018-
770 DC (n 59) cons 64. 
Genevois (n 3), 254.  
See e.g. Cons const, décision n° 2003-467 DC (n 59) cons 86; Cons const, décision 
n° 2018-717/718 QPC (n 59) cons 14.  
See e.g. Cons const, décision n° 92-307 DC (n 106) cons 33; Cons const, décision 
n° 93-325 DC (n 54) cons 16; Cons const, décision n° 2003-484 DC (n 59) cons 66.  
Cons  const,  décision  n°  2017-674  QPC  (n 59)  cons  25;  Cons  const,  décision  n° 
2018-717/718 QPC (n 59) cons 23; Cons const, décision n° 2019-799/800 QPC du 6 

 
 
 
 
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Of  course,  these  consequences 
invariably  relate  to  public  order 
considerations  (i.e.  maintaining  immigration  control  measures),  which  are 
invoked to justify the continued violation of constitutional rights for several 
additional months. 

IV. LOOSENING PROTECTION: THE EXAMPLE OF IMMIGRATION 
DETENTION 

According to professor Serge Slama, the Constitutional Council's case law on 
immigration  matters  can  be  described  as  a  belt  loosened  at  every  weight 
gain.115  This  is  particularly  true  for  immigration  detention  regimes,  which 
have  become  an  increasingly  significant  tool  in  French  immigration  policy 
over the past few decades. As the analysis in this Part IV will show, after an 
initial period of vigilance, during which the Council rejected longer detention 
periods, the Council gradually weakened its standards and began to accept 
longer detention periods, from seven days initially to three months today. It 
has become quite clear that the Council is no longer inclined to hinder in any 
way  the  legislator's  policy  priority  of  'fighting  against  irregular  migration'. 
The  example  of  immigration  detention  thus  demonstrates  the  Council's 
willingness to reinforce stricter policy preferences by translating them into 
constitutional  language.  In  particular,  this  analysis  will  show  that  policy 
considerations, while not explicitly acknowledged in the Council's reasoning, 
played  an  overwhelming  role  in  the  Council's  decision  to  overturn  its  own 
case law.  

1. Initial Vigilance: Rejecting Longer Detention 

In its early decisions regarding immigration laws, the Council was particularly 
vigilant  when  it  came  to  immigration  detention  regimes.  Article  66  of  the 
1958 Constitution asserts the right to be free from arbitrary detention and 

115 

septembre  2019,  Mme  Alaitz  A.  et  autre,  cons  11  (my  translation).  But  see Cons 
const, décision n° 2018-709 QPC du 1 juin 2018, Section française de l'observatoire 
international des prisons et autres, cons 12.  
Serge Slama, 'La rétention des « Dublinables » : le Conseil Constitutionnel admet 
une  rétention  préventive  sans  perspective  immédiate  d'éloignement'  (2018) 
Lexbase,  La  lettre  juridique  n°  739  <https://www.lexbase.fr/revues-juridiques/ 
45196432- document-elastique> accessed 3 September 2021. 

 
 
 
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entrusts the judiciary authority with protecting individual liberty. While the 
Council  always  accepted  in  principle  the  possibility  of  administrative 
detention to enforce deportation measures,116 it was initially determined to 
enforce relatively strict criteria for judicial review and limits on duration. The 
Council did not hesitate to strike down provisions on these grounds in four 
different decisions between 1980 and 1993.  

to 

imposing 

review  any  decision 

In a 1980 decision, the Council first established that juge judiciaire (judicial 
branch  as  opposed  to  administrative  judges)  must  intervene  as  early  as 
possible 
retention  administrative 
(administrative  detention)  or  extending  its  duration  for  an  additional 
period.117  The  Council  accepted  one  detention  regime  that  provided  for 
judicial intervention after forty-eight hours of administrative detention, but 
rejected  another  regime  in  which  such  intervention  was  not  envisaged  for 
more than seven days (either automatically or upon the detainee's request).118 
In  a  1986  decision,  the  Council  examined  and  struck  down  a  detention 
provision on its own initiative, even though members of Parliament had not 
criticized  it  in  their  brief  to  the  Council.  The  relevant  law  provided  the 
possibility of a six-day extension of detention, followed by a second extension 
of  three  additional  days,  should  the  administration  demonstrate  that  it 
encountered 'particular difficulties hindering the detainee's deportation'.119 
The Council deemed that the second extension, bringing the total duration 
of  detention  to  ten  days,  could  only  be  granted  in  cases  of  'absolute 
emergency and particularly serious threats to public order'.120 It deemed the 
law in question too broad to satisfy these constitutional requirements, as it 
was not limited to such exceptional cases. 

In a 1992 decision, the Council rejected a provision establishing transit zones 
for  foreigners  whose  entry  in  France  was  refused  and  for  those  requesting 
asylum  at  the  border.  It  first  confirmed  that  detaining  foreigners  at  the 
border was a lesser restriction of individual liberty than detaining individuals 

116 

117 

118 

119 

120 

Cons const, décision n° 79-109 (n 67). 
Ibid cons 4.  
Ibid cons 3-4.  
Cons const, décision n° 86-216 DC (n 75) cons 21 (my translation). 
Ibid cons 22 (my translation). 

 
 
 
 
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already on French soil.121 Although the Council did not explicitly justify this 
position,  it  seems  to  have  been  swayed  by  the  fact  that  the  law  allowed 
foreigners  detained  at  the  border  to  leave  the  transit  zone  at  any  time  by 
leaving  France  for  a  foreign  destination  where  they  could  be  admitted.122 
Nonetheless, given the degree of constraint and the duration of the measure, 
the Council still insisted that review by a juge judiciaire must be made available 
as early as possible, and that in any case the maximum duration of the measure 
had  to  be  'reasonable'.123  The  Council  deemed  that  these  constitutional 
requirements  were  not  respected  under  the  transit  zone  regime,  which 
authorized  the  detention  of  foreigners  for  up  to  twenty  days  without  any 
judicial review, subject to extension for an additional ten days by ruling of an 
administrative judge (not a juge judiciaire).  

Finally, in the notable August 1993 decision cited multiple times above, the 
Council reiterated the rule it had established in 1986. The legislator had again 
attempted to authorize a second extension of administrative detention, for a 
cumulative total of ten days, in cases where 'the foreigner did not provide the 
competent  authority  with  a  travel  document  enabling  the  execution  of  a 
[deportation measure]'. The Council struck down the provision, maintaining 
its position that a second extension of the detention measure could only be 
allowed in exceptional cases of absolute emergency and particularly serious 
threats to public order.124  

2. Later Shift: Accepting Longer Detention 

A  shift  started  to  occur  in  the  late  1990s,  as  the  legislator  and  the 
administration continued to harshen their immigration policies. In 1997 and 
1998, the Council failed to examine provisions extending the scope of cases 
in which a second extension of a term of detention could be granted beyond 
seven days. In 1997, a law was brought before the Council that maintained 
measures originally taken in a December 1993 law that was not referred to the 

121 

122 

123 

124 

Cons const, décision n° 92-307 DC (n 106) cons 13-14. 
This point was explicitly debated during the deliberation session. See minutes of 
the Council's deliberation session of 24 and 25 February 1992.  
Cons const, décision n° 92-307 DC (n 106) cons 16 (my translation).  
Cons const, décision n° 93-325 DC (n 54) cons 100 (my translation).  

 
 
 
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Endorsing Migration Policies in Constitutional Terms 

91 

Council.125 These measures violated the limits set by the Council in its 1986 
and  1993  decisions,  but  the  Council  nevertheless  declined  to  consider  the 
relevant  provisions.126  In  1998,  another  law  came  before  the  Council  that 
increased the length of the second extension to five days, thus bringing the 
total duration of detention to twelve days. It also extended again the scope of 
cases where a second extension could be requested. Yet the Council did not 
react,127 signaling what would later be deemed tacit approval.128  

Then, in a 2003 decision, the Council explicitly abandoned its earlier case law. 
It  accepted  a  total  duration  of  thirty-two  days  of  detention,  with  two 
extensions of fifteen days after an initial forty-eight hours. The Council also 
relaxed  the  restrictions  on  cases  in  which  a  second  extension  could  be 
granted. Indeed, the Council accepted the new regime wholesale, subject to 
the réserve d'interprétation that the juge judiciaire may interrupt detention at 
any time, either on its own initiative or upon the detainee's request.129 The 
Council's ruling lifted virtually all of the previously applicable restrictions and 
essentially  afforded  the  legislator  the  opportunity  to  extend  the  maximum 
length of immigration detention at will.  

Indeed, in 2011, the Council authorized an extension of the maximum term 
of detention to forty-five days, referring explicitly to the objective of fighting 
irregular migration as part of the safeguarding of public order, a recognized 
objectif à valeur constitutionnelle. Its approval was subject to the same réserve 
d'interprétation  it had formulated in 2003,130 but this time the  juge judiciaire 
was not required to intervene until five days into the term of detention (or, in 
cases  where  a  foreigner  was  placed  in  custody  prior  to  an  order  of 
administrative  detention,  up  to  seven).131  The  Council  deemed  that  the 
legislator's decision that an administrative judge should intervene prior to the 
juge judiciaire served the interests of the good administration of justice, which 

125 

126 

127 

128 

129 

130 

131 

Constitutional  Council,  'Commentaire  de  la  décision  n°  2003-484  DC  du  20 
novembre 2003' (2004) 16 Cahiers du Conseil constitutionnel. 
Cons const, décision n° 97-389 DC (n 59). 
Cons const, décision n° 98-399 DC (n 65).  
Constitutional Council (n 125). 
Cons const, décision n° 2003-484 DC (n 59) cons 66.  
Cons const, décision n° 2011-631 DC (n 59) cons 75.  
Ibid cons 73.  

 
 
 
 
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has also been recognized as an objectif à valeur constitutionnelle.132 One begins 
to wonder how this respects the Council's own requirement, established in 
1980, that the juge judiciare must intervene as early as possible.133 

Finally,  in  2018,  the  Council  accepted  a  maximum  length  of  detention  of 
ninety  days,  under  the  same  reasoning  and  subject  to  the  same  réserve 
d'interprétation as in 2003 and 2011.134 Although the Council pronounced the 
measure  'adequate,  necessary  and  proportionate',  its  reasoning  in  reaching 
this  conclusion  remained  superficial  and  abstract.  It  failed  to  respond  to 
concrete  arguments  set  forth  by  civil  society,  national  human  rights 
institutions and members of Parliament as to the inefficiency of long-term 
impact  on  detainees.135 
detention  and 
Unfortunately,  some  of  these  concerns  have  materialized  since  the  law 
entered into force.136  

its  negative  psychological 

The dramatic shift in the Council's case law from 2003 onwards was clearly a 
deliberate effort to provide a wider margin of action for the legislator in the 
'fight  against  irregular  migration'.  Although  the  2003  decision  itself  offers 
only limited and formalistic reasons as to why the Council departed from its 

132 

133 

134 

135 

136 

Ibid cons 72.  
Admittedly,  the  Council  did  push  back  on  part  of  the  legislator's  harsh 
immigration control agenda in its 2011 decision, striking down part of a provision 
authorizing  the  long-term  detention  of  foreigners  subject  to  an  interdiction  du 
territoire  (re-entry  ban)  for  terrorist  acts  or  expulsion  for  behavior  linked  to 
terrorist  activities.  The  Council  found  that  this  regime  violated  the  right  to 
individual liberty by allowing a twelve-month extension after an initial six-month 
period  of  detention.  However,  in  doing  so,  it  implicitly  confirmed  the 
constitutionality of the initial six-month period. Ibid cons 76. 
Cons const, décision n° 2018-770 DC (n 59) cons 76 (my translation).  
Assfam-groupe  SOS  Solidarités  and  others,  'Centres  et  locaux  de  rétention 
administrative.  Rapport  2017' 
15  <https://www.lacimade.org/wp-
(2018) 
content/uploads/2018/07/La_Cimade_Rapport_Retention_2017.pdf>  accessed  3 
September 2021; Commission nationale consultative des droits de l'homme, 'Avis 
sur le projet de loi « pour une immigration maîtrisée et un droit d'asile effectif »', 
(2018)  38-41  <https://www.cncdh.fr/sites/default/files/180502_avis_pjl_asile_et_ 
immigration.pdf> accessed 3 September 2021. 
See  e.g.  Assfam-groupe  SOS  Solidarités  and  others,  'Centres  et  locaux  de 
rétention  administrative.  Rapport  2019'  (2020)  24  <https://www.france-terre-
asile.org/images/RA_CRA_2019_web.pdf> accessed 3 September 2021.  

 
 
 
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Endorsing Migration Policies in Constitutional Terms 

93 

previous decisions, the official commentary of the decision published on the 
institution's website explicitly acknowledges this reversal, essentially relying 
on the arguments presented by the Government in its written observations.137 
A  communication  from  former  President  of  the  Constitutional  Council 
Pierre Mazeaud in 2005 also offers precious insights. He himself labels the 
2003 decision a 'revirement de jurisprudence' (reversal of case law) grounded on 
'considerations of a non-legal nature'.138 Mazeaud explains:  

A 13 August 1993 decision deemed that, except in cases of particularly serious 
threats  to  public  order,  the  Constitution  prohibited  the  detention  of 
foreigners targeted by deportation measures for more than a week.  

A decision of 20 November 2003 nevertheless validated provisions which, to 
provide  the  administration  with  sufficient  time  to  enforce  deportation 
measures  in  an  efficient  manner,  increased  the  maximum  duration  of 
detention  to  thirty-two  days.  Realism  played  an  important  role  in  this 
decision. The fact that almost all European countries implemented a higher 
maximum duration could only influence the Council and push for a reversal. 
Another  determinant  factor  was  the  legislator's  will  to  solve  a  situation 
where only a low proportion of deportation measures were enforced, which 
public opinion struggled to accept.139 

It is striking to observe how much the language of 'realism' used by the former 
President of the Council resonates with the  Government's observations in 
the proceedings leading to an April 1997 decision reviewing an immigration 
law.140 It is, of course, not so surprising if one considers the lengthy political 
career Mazeaud enjoyed before becoming a member of the Council. Many 
other  members  of  the  Council  have  had  similar  career  paths,  which  helps 

137 

138 

139 

Constitutional Council (n 125). 
Pierre Mazeaud, 'La place des considérations extra-juridiques dans l'exercice du 
contrôle  de  constitutionnalité.  EREVAN  :  29  septembre  –  2  octobre  2005' 
(Conseil  constitutionnel,  2005)  <https://www.conseil-constitutionnel.fr/sites/ 
15 
default/files/as/root/bank_mm/pdf/Conseil/20051001erevan.pdf>  accessed 
January 2021, 13-14 (my translation). 
Ibid 14 (my translation). 

140  Government's observations before the Council in Cons const, décision n° 97-389 

DC (n 59). 

 
 
 
 
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explain the institution's deferential approach vis-à-vis the legislator, as well 
as its shared policy perspectives.141 

The Council's endorsement of stricter migration policies can be observed in 
several  other  recent  decisions,  which  have  confirmed  the  expanded  use  of 
immigration  detention.  In  a  June  2011  decision,  the  Council  approved  the 
creation  of  temporary  border  detention  sites  (outside  of  border  crossing 
points)  that  do  not  offer  the  same  guarantees  as  zones  d'attente  (waiting 
zones).142 In a March 2018 decision, the Council also refused to strike down a 
provision which authorized the preventive detention of asylum seekers who 
are likely to be transferred to another member state of the European Union 
under  the  Dublin  Regulation.143  Last,  but  not  least,  in  a  September  2018 
decision,  the  Council  deemed  constitutional  the  detention  of  children 
'accompanying' adults targeted by deportation measures.144 

V. CONCLUDING REMARKS 

For  the  most  part,  the  French  Constitutional  Council  has  endorsed  the 
immigration  policy  preferences  of  the  legislator  and  the  Government  by 
translating them into constitutional language. This article has shown that the 
Council's  seemingly  neutral  methods  of  reasoning  are  in  fact  politically 
oriented  instruments  providing  stable  support  for  restrictive  immigration 
policy  preferences.  The  Council  enjoys  a  rather  wide  margin  of  action  on 
immigration  matters,  as  it 
is  not  substantially  constrained  by  the 
Constitution  itself  in  this  area.  Nonetheless,  it  has  exercised  considerable 
self-restraint on such questions, employing permissive methods of reasoning 

141 

142 

143 

144 

This  is  particularly  manifest  in  the  minutes  of  deliberation  sessions  of  the 
Council,  which  are  published  twenty-five  years  after  the  publication  of  the 
decision itself.  
Cons const, décision n° 2011-631 DC (n 59) cons 19-22.  
Cons  const,  décision  n°  2018-762  DC  (n 59)  cons  16.  The  measure  was 
unprecedented,  as  immigration  detention  had  always  been  used  to  enforce  a 
deportation measure already taken by the administration in cases where there was 
a reasonable perspective that the foreigner would effectively be deported.  
Cons const, décision n° 2018-770 DC (n 59) cons 64 (my translation). The Council 
considered that it was in the child's interest not to be separated from the adult 
she 'accompanied' and that her interest in not being detained could be balanced 
against public order considerations favoring the adult's effective deportation.  

 
 
 
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Endorsing Migration Policies in Constitutional Terms 

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observed in many other areas of law. In so doing, it has recognized extensive 
police  powers  for  the  legislator,  setting  aside  criminal  law  guarantees  and 
favoring  public  order  considerations  over  rights.  Taking  the  example  of 
immigration detention, after an initial period of vigilance during which the 
Council rejected longer detention periods, the Council gradually weakened 
its standards and allowed the legislator to lengthen terms from an initial seven 
days  to  three  months  today.  The  analysis  in  this  article  highlighted  the 
Council's  willingness  and  ability  to  adapt  its  case-law  to  support  more 
restrictive  policy  preferences.  It  also  demonstrated 
that  policy 
considerations,  while  not  explicitly  acknowledged  as  such  in  the  Council's 
case  law,  played  an  overwhelming  role  in  the  Council's  decision  to  depart 
from its own established case law.  

Overall,  over  the  past  few  decades,  the  French  Constitutional  Council  has 
remained  faithful  to  the  immigration  policy  preferences  pursued  by  the 
legislator  and  the  Government.  The  Council's  most  recent  case  law  is 
particularly striking in this regard. As the 'fight against irregular migration' 
became an overarching goal of French and European immigration  policies, 
the Council translated this aim into constitutional terms by linking it to the 
safeguard of public order, a recognized objectif à valeur constitutionnelle against 
which foreigners' rights – even the most fundamental – are often unfavorably 
balanced.  The  Council  has  thus  deliberately  abandoned  a  rights-based 
approach to immigration matters to facilitate stricter immigration control. 

 
 
 
A SHORTFALL OF RIGHTS AND JUSTICE: 
JUDICIAL REVIEW OF IMMIGRATION DETENTION IN GREECE 

Danai Angeli* 

 and Dia Anagnostou† 

This  article  critically  examines  the  judicial  review  of  immigration  detention  in 
Greece.  Specifically,  it  analyzes  the  inconsistencies  in  domestic  court  rulings, 
particularly in differentiating between asylum and pre-removal detention, as well as 
between restrictions on and deprivation of liberty. On the basis of an extended review 
of decisions by Greece's first instance courts and the Council of State, this article argues 
that the above-described deficiencies in domestic judicial control must be attributed to 
the system's institutional design. Greece's lower administrative courts are tasked with 
reviewing  the  lawfulness  of  detention  orders  and  their  rulings  are  not  subject  to 
appeal. Although this system ensures speediness, it has also allowed the development of 
an  inconsistent  and  often  unpredictable  jurisprudence,  to  the  detriment  of  the 
effectiveness required by European norms. The article calls for an institutional reform 
that would allow for higher administrative courts, such as the Council of State, to act 
as appellate courts and review the constitutionality of detention orders. This would 
strengthen the ability of national judges to resolve long-standing normative questions 
about  the  law.  It  would  ultimately  lead  to  a  kind  of  judicial  control  that  is  more 
coherent and more conducive to human rights protection. 

Keywords:  immigration  detention,  judicial  review,  irregular  migration, 
asylum, EU Directives 

TABLE OF CONTENTS 

I. INTRODUCTION .................................................................................................. 98 

II. IMMIGRATION DETENTION IN GREEK LAW AND PRACTICE .................... 104 

III. JUDICIAL CONTROL OF IMMIGRATION DETENTION IN THE GREEK 

CONTEXT .......................................................................................................... 111 

* 

† 

Assistant Professor of International Law at Bilkent University, Ankara, Turkey, 
and Lawyer (Athens Bar Association), Athens, Greece. 
Assistant  Professor  of  Comparative  Politics  at  Panteion  University  of  Social 
Sciences, Athens, Greece and Senior Research Fellow at the Hellenic Foundation 
for European and Foreign Policy (ELIAMEP), Athens, Greece. 

EJLS Special Issue, May 2022, 97-131 

doi:10.2924/EJLS.2022.004 

 
 
 
 
 
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IV. ASYLUM DETENTION OR PRE-REMOVAL DETENTION? ............................ 116 

V. RESTRICTIONS OF MOVEMENT OR DEPRIVATION OF LIBERTY? ............... 120 

VI. DRAWING COMMON NORMATIVE THREADS: THE COUNCIL OF STATE 

INTERVENTIONS .............................................................................................. 123 

1. Asylum and Pre-removal Detention ...................................................................... 124 

2. Restrictions Falling Short of Detention ................................................................. 127 

VII. CONCLUDING REMARKS .............................................................................. 129 

I. INTRODUCTION

Immigration detention is  routinely used  by  states to control the  entry and 
stay  of  non-nationals  and  to  facilitate  their  removal.1  In  Europe,  its 
generalized use as a migration management tool has reportedly been on the 
rise.2  This  use  has  grown  in  the  context  of  increased  migration  flows  and 
against  the  backdrop  of  public  perceptions  of  immigrants  as  a  threat  to 
security  and  public  order.  Europe,  however,  is  also  home  to  a  dense 
international  and  supranational  framework  of  substantive  and  procedural 
norms  that  establish  limits  on  state  authorities'  power  to  resort  to  the 
internment  of  migrants3  –  a  practice  that,  is  in  principle,  at  odds  with  the 
fundamental liberty of the individual. The European Convention of Human 
Rights (ECHR), as interpreted in the rich case-law of the European Court of 
Human Rights (ECtHR), has laid down standards for assessing the lawful and 
non-arbitrary  character  of  migrant  detention.4  The  European  Union  (EU) 

1 

2 

3 

4 

(Lilian)  Tsourdi, 

'Alternatives  to  Immigration  Detention 

Justine Stefanelli, Judicial Review of Immigration Detention (Hart Publishing 2020) 
1-2. 
in 
Evangelia 
International  and  EU  Law:  Control  Standards  and  Judicial  Interaction  in  a 
Heterarchy'  in  Madalina  Moraru,  GN  Cornelisse  and  Philippe  De  Bruycker 
(eds), Law and Judicial Dialogue on the Return of Irregular Migrants from the European 
Union (Hart Publishing 2020) 167. 
"Migrants" is  used  in the broadest sense to refer  to all individuals entering the 
territory of a state other than their own, be it as refugees, asylum-seekers, stateless 
persons or irregular or regular migrants. 
Article 5(1)(f) ECHR allows detention to prevent an unauthorized entry or with a 
view  to  deportation.  However,  detention  must  be  in  accordance  with  national 
law, implemented in good faith and connected to the stated purpose and must 

 
 
 
 
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A Shortfall of Rights and Justice 

99 

has  also  established  a  detailed 
legislative  framework  that  regulates 
immigration detention to prevent arbitrary deprivation of liberty in violation 
of the Charter of Fundamental Rights of the EU (CFR).5  

This article explores the crucial role that national courts play in protecting 
migrants' right to liberty against arbitrary detention policies. States' power to 
apply  immigration  detention  is  bound  up  with  migrants'  right  to  have  the 
legality  of  the  detention  order  reviewed  by  a  judicial  authority.6  Domestic 
courts must examine whether national legislation and administrative action 
in  individual  cases  meet  the  basic  standards  of  lawfulness  and  non-
arbitrariness  embedded  in  the  dense  framework  of  supranational  and 
international  norms  applicable  in  Europe.  They  must  also  assess  whether 
overarching goals such as maintaining public order and national security are 
sufficient  to  justify  restrictions.  Judicial  control  must  be  comprehensive, 
rigorous and effective according to the high-quality standards established by 
both EU law and the ECHR.7  

The European framework on immigration detention has arguably enhanced 
the constitutional and judicial protection of immigrant detainees in certain 
Member  States.  In  the  Netherlands,  for  instance,  domestic  judges'  strict 

5 

6 

7 

take place in appropriate conditions and be of a reasonable duration. Saadi v the 
United Kingdom ECHR 2008-VII 31, paras 61-80.  
Tsourdi (n 2) 189. Directive 2008/115 of the European Parliament and the Council 
of 16 December 2008 on common standards and procedures in Member states for 
returning  illegally  staying  third-country  nationals  [2008]  OJ  L348/98  (Return 
Directive),  arts  15-17;  Directive  2013/33  of  the  European  Parliament  and  of  the 
Council  of  26  June  2013  laying  down  common  standards  for  the  reception  of 
applicants  for  international  protection  [2013]  OJ  L180/96  (Recast  Reception 
Conditions Directive), recital 15 and arts 8-11; Directive 2013/32 of the European 
Parliament  and  of  the  Council  of  26  June  2013  on  common  procedures  for 
granting  and  withdrawing  international  protection  [2013]  OJ  L180/60  (Recast 
Asylum Procedures Directive) art 26. 
Convention  for  the  Protection  on  Human  Rights  and  Fundamental  Freedoms 
(adopted  4  November  1950,  entered  into  force  3  September  1953)  ETS  005 
(ECHR),  art  5(4);  Recast  Reception  Conditions  Directive  (n 5)  art  9;  Return 
Directive (n 5) art 15. 
Khlaifia and others v Italy App no 16483/12 (ECtHR, 15 December 2016) paras 128-
131; Return Directive (n 5) art 15; Recast Reception Conditions Directive (n 5) art 
9. 

 
 
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scrutiny of detention orders guided by European norms has reportedly led to 
administrative  caution  in  the  use  of  immigration  detention  and  a  gradual 
reduction in the number of migrants in custody.8 The effects of the European 
rights  framework,  however,  have  not  been  uniform.  There  are  wide 
disparities in judicial levels of migrants' protection across Member States.9 
Differences  in  the  domestic  judicial  review  systems  of  Member  States  can 
produce disparate outcomes in levels of rights protection, to such a degree 
that migrants and asylum-seekers in the EU may be seen to face a 'detention 
roulette'.10 In Greece, for instance, national legislation has undergone a series 
of amendments in an effort to align detention policy with migrants' human 
rights  guarantees.11  Nonetheless,  over  the  past  decade  Greece  has  been 
repeatedly  condemned  by  the  ECtHR  on  account  of  its  failure  to  ensure 
migrants effective judicial protection against arbitrary detention orders.12 

Focusing on the case of Greece, this article shows that the design of judicial 
review  of  immigration  detention  at  the  national  level,  which  is  left  to  the 
discretion of Member States, can profoundly shape the extent to which states 
uphold migrants' right to liberty in line with EU and ECHR standards. Due 
to  its  geographical  location,  Greece  has  served  as  a  main  entry  and  transit 

8 

9 

10 

11 

12 

Galina  Cornelisse, 
'The  Constitutionalisation  of  Immigration  Detention: 
Between EU Law and the European Convention on Human Rights' (2016) Global 
Detention Project Working Paper 15 <https://www.globaldetentionproject.org/ 
wp-content/uploads/2016/12/cornelisse-gdp-paper.pdf> accessed 5 January 2022, 
8-9. 
Adam  Blisa  and  David  Kosa,  'Scope  and  Intensity  of  Judicial  Review:  Which 
Power  for  Judges  within  the  Control  of  Immigration  Detention?'  in  Moraru, 
Cornelisse and De Bruycker (eds) (n 2). 
Ibid 192. 
Eleni Koutsouraki, 'The Indefinite Detention of Undesirable and Unreturnable 
Third-Country Nationals in Greece' (2017) 36 Refugee Survey Quarterly 85, 86 
SD v Greece App no 53541/07 (ECtHR, 11 September 2009); Tabesh v Greece, App 
no 8256/07 (ECtHR, 26 November 2009); AA v Greece App no 12186/08 (ECtHR, 
22 July 2010); Rahimi v Greece App no 8687/08 (ECtHR, 5 April 2011); RU v Greece 
App no 2237/08 (ECtHR, 7 September 2011); Mahmundi and others v Greece App no 
14902/10  (ECtHR,  31  July  2012);  Herman  and  Serazadishvili  v  Greece  App  nos 
26418/11  and  45884/11  (ECtHR,  24  April  2014);  SZ  v  Greece  App  no  66702/13 
(ECtHR,  21  June  2018);  OSA  and  others  v  Greece,  App  no  39065/16  (ECtHR,  21 
March 2019); Kaak and others v Greece App no 34215/16 (ECtHR, 3 October 2019). 

 
 
 
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A Shortfall of Rights and Justice 

101 

point  for  large  numbers  of  undocumented  migrants  seeking  to  cross  into 
Europe.  The  Greek  authorities  have  widely  and  increasingly  resorted  to 
detention to manage the flows, especially from 2012 onwards.13 The dramatic 
increase of irregular arrivals in 2015, the EU-Turkey statement in March 2016 
(aimed at ending irregular migration from Turkey to the Greek islands), and 
the  outbreak  of  the  pandemic  in  2020  further  exacerbated  a  longstanding 
policy of generalized immigration detention.14  

In reviewing court decisions on immigration detention, this article brings to 
light deficiencies in the institutional design of the judicial review process in 
Greece.  It  argues  that  the  allocation  of  the  judicial  control  to  lower 
administrative  courts,  without  the  possibility  of  appeal,  has  enabled  the 
development of a heterogeneous and unpredictable body of case-law. Judges 
all  too  often  focus  on  the  facts  of  individual  cases  and  offer  conflicting 
answers to the same questions of law. This is most notably evidenced in their 
inconsistent  approach  regarding  the  distinction  between  asylum  detention 
and pre-removal detention, as well as the difference between restriction and 
deprivation of liberty. Drawing on judicial precedents set by the Council of 
State (CoS), Greece's supreme administrative court, we suggest a reform of 
the  judicial  review  system  to  allow  for  a  right  to  appeal.  This  would 
strengthen  domestic  judges'  capacity  to  review  the  constitutionality  of 
detention measures and offer the kind of judicial review conducive to rights 
as required by EU law and the ECHR. 

This  article  contributes  to  existing  scholarship  on  migrants'  rights  in 
detention  and  the  role  of  the  judiciary  in  enforcing  rights  guarantees  by 
advancing  knowledge  on  a  subject  that  has  generally  attracted  scant 
attention. Although Greece's immigration detention laws and practices have 

13 

14 

Koutsouraki (n 11) 86. 
European Committee for the Prevention of Torture (CPT), 'Report to the Greek 
Government on the Visit to Greece Carried Out by the European Committee for 
the Prevention of Torture and Inhuman or Degrading Treatment or Punishment 
(CPT)  from  13  to  17  March  2020'  CPT/Inf  (2020)  35  <https://rm.coe.int/ 
1680a06a86> accessed 5 January 2022; CPT, 'Report to the Greek Government 
on  the  Visits  to  Greece  Carried  Out  by  the  European  Committee  for  the 
Prevention  of  Torture  and  Inhuman  or  Degrading  Treatment  or  Punishment 
from 13 to 18 April and 19 to 25 July 2016' CPT/Inf (2017) 25 <https://rm.coe.int/ 
pdf/168074f85d> accessed 5 January 2022. 

 
 
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been the subject of several studies,15 far less has been written on the judicial 
review process itself. To some extent, this may be attributable to the fact that 
the decisions of the lower administrative courts generally are not published, 
with the exception of some selected significant judgments.16 Recent studies 
have  provided  an  overview  of  the  national  case-law,17  identified  pertinent 
controversial issues and inconsistencies18 and highlighted the contribution of 
the Greek judiciary in protecting migrants' rights to liberty against arbitrary 
detention policies.19 Case notes and other studies have critically reviewed the 
decisions  of  Greek  judges  on  the  arbitrariness  of  specific  administrative 

15 

16 

Koutsouraki (n 11); Ilias Kouvaras,  'Η  μεταβατική  νομιμότητα:  αντιρρήσεις  κατά 
της κράτησης αλλοδαπού και εναλλακτικά μέτρα' ['Transitory Legality: Objections 
Against  Alien  Detention  and  Alternative  Measures'],  (EANΔA  conference 
Επικαιρα  ζητήματα  μεταναστευτικού  [Contemporary  Issues  of  Migration],  20 
October  2017)  <https://www.eanda.gr/sites/default/files/EANDA%20EISIGISI 
%20KOUVARAS.pdf> accessed 2 December 2020; Anna Triandafyllidou, Danai 
Angeli  and  Angeliki  Dimitriadi,  'Detention  as  Punishment'  (2014)  ELIAMEP 
Midas  Policy  Brief  <http://www.eliamep.gr/wp-content/uploads/2014/04/Polic-
brief-Detention-in-Greece-1.pdf>  accessed  2  December  2020.  All  square-
bracketed translations in citations are provided by the authors of this article. 
Administrative  court  judgments  reviewing  the  lawfulness  of  immigration 
detention are rarely published in law journals and legal databases. 

18 

17  Maria-Aspasia  Simou,  'Αντιρρήσεις  κατά  της  κράτησης  υπηκόων  τρίτων  χώρων 
που υπόκεινται σε διαδικασίες επιστροφής. Το ειδικότερο ζήτημα της κράτησης των 
αιτούντων  διεθνή  προστασία  υπό  το  πρίσμα  της  νομολογιακής  πρακτικής' 
['Objections  Against  Detention  by  TCNs  Subject  to  Return  Procedures:  The 
Specific  Issue  of  the  Detention  of  Applicants  for  International  Protection 
through  the  Lens  of  Judicial  Practice']  (Union  of  Administrative  Judges 
Conference,  7-8  October  2016)  <https://www.edd.gr/images/conferences/ 
amsimou.pdf> accessed 5 January 2022; Kouvaras (n 15). 
Angeliki Papapanagiotou-Leza and Stergios Kofinis, 'Can the Return Directive 
Contribute to Protection for Rejected Asylum Seekers and Irregular Migrants in 
Detention?  The  Case  of  Greece'  in  Moraru,  Cornelisse  and  De  Bruycker  (eds) 
(n 2) 281. 
'Πτυχές  του  Μεταναστευτικού  Ζητήματος.  18μηνη  κράτηση 
Vasilis  Faitas, 
μεταναστών  και  προσφύγων  και  αντιρρήσεις  κατά  της  κράτησης'  ['Aspects  of 
Immigration.  18-Month  Detention  of  Migrants  and  Refugees  and  Objections 
Against Detention'] (2005) 2-3 Επιθεώρηση Μεταναστευτικού Δικαίου [Migration 
Law Review] 129. 

19 

 
 
 
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A Shortfall of Rights and Justice 

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detention  practices.20  Finally,  a  recent  contribution  by  Panagiotopoulou-
Leza  and  Kofinis  attributes  Greek  judges'  reluctance  to  interact  with  the 
Court of Justice of the European Union (CJEU) to constraints inherent in the 
procedure itself, including the absence of an appeal remedy.21  

The present study specifically focuses on the institutional design of domestic 
judicial  review  in  Greece.  It  provides  and  analyzes  up-to-date  case-law, 
implementing the latest legislative amendment effective 12 May 2020.22 The 
analysis  also  examines  relevant  decisions  of  the  CoS,  which  have  thus  far 
evaded  scholarly  attention,  the  main  reason  being  that  the  CoS  is  not  in 
principle  responsible  for  reviewing  immigration  detention  judgments. 
Nonetheless, there is a limited body of important judicial precedents. Our 
focus  on  the  implementation  of  supranational  norms  within  the  Greek 
context makes our findings relevant also for studies on the ECHR system and 
on the EU judiciary and policymakers.23  

We  consulted  a  total  of  105  judgments  issued  by  Greece's  lower  instance 
administrative  courts  and  the  CoS  mainly  between  2016-2020,  a  period  of 
profound changes in Greece's detention practices and laws. For the purposes 
of our analysis, we also refer to earlier judgments where needed. To ensure 
geographical representation, we collected court judgments issued in different 

20 

21 

22 

23 

Vasileios  Papadopoulos,  'Σχόλιο  επί  της  υπ΄  αριθμ.  AP414/2019  απόφασης  της 
Προέδρου  του  Διοικητικού  Πειραιά  επί  αντιρρήσεων  κατά  κράτησης  αλλοδαπού' 
['Commentary  on  Decision  414/2019  of  the  President  of  the  Administrative 
Court  of  Piraeus  on  Objections  Against  Aliens  Detention']  (2020)  2  Διοικητική 
Δίκη  [Administrative  Litigation]  332;  Greek  Refugee  Council,  'Administrative 
Detention  in  Greece:  Observations  from  the  Field'  (2018)  <https://www.gcr.gr/ 
media/k2/attachments/GCR_Ekthesi_Dioikitik_Kratisi_2019.pdf>  accessed  2 
December 2020. 
Papapanagiotou-Leza and Kofinis (n 18). 
Law  4636/2019,  'On  International  Protection  and  Other  Provisions'  (GG  A' 
169/01.11.2019);  Law  4686/2020  'Improvement  of  Immigration  Legislation, 
Amendment of 4636/2019 (A' 169), 4375/2016 (A' 51), 4251/2014 (A' 80) and Other 
Provisions' (Government Gazette [GG] A' 96/12.05.2020). 
There  are  two  ongoing  developments  of  direct  relevance:  the  recasting  of  the 
Return Directive (n 5) and the preliminary questions raised before the CJEU in 
Case C-704/17 DH v Ministerstvo vnitra (subsequently withdrawn) on the scope of 
the  right  to  judicial  review  under  Articles  8  and  9  of  the  Recast  Reception 
Conditions Directive (n 5), including the right to appeal. 

 
 
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regions, including the mainland (Athens, Nafplio, Komotini, Lamia, Larisa, 
Trikala, Corinthus, Patra, Kavala, Athens, Piraeus) and the islands (Rhodos, 
Lesvos).  We  do  not  aim  to  provide  an  exhaustive  analysis  of  the  Greek 
jurisprudence, but to illustrate, through a representative sample, the depth of 
normative divisions on some of the most basic concepts of detention.24 

The rest of this article is organized as follows. Section 2 provides an overview 
of  national  law  and  policy  on  immigration  detention  in  Greece.  Section  3 
describes  the  specific  characteristics  of  domestic 
judicial  review  of 
immigration detention and the institutional role of the CoS. Sections 4 and 5 
examine  the  judicial  shortcomings  of  this  system,  taking  as  examples  two 
basic normative questions that have divided Greek judges: (1) the scope and 
(2)  the  definition  of  immigration  detention.  Section  6  explores  the  judicial 
precedents  produced  by  the  CoS  and  their  impact.  Section  7  concludes  by 
suggesting an institutional reform that would allow for a right to appeal. This 
would  strengthen  the  capacity  of  domestic  courts  to  perform  the  kind  of 
judicial review required by the right to liberty. 

II. IMMIGRATION DETENTION IN GREEK LAW AND PRACTICE 

The Greek legal order recognizes two types of immigration detention: pre-
removal detention and asylum detention – a distinction that is aligned with 
EU standards. Pre-removal detention concerns undocumented third country 
nationals (TCNs) seeking entry into the country or already present therein, 
who may be subject to administrative detention with a view to expulsion or 
return,  respectively.25  Both  detention  and  removal  orders  are  issued  by  the 
Hellenic  Police  rather  than  the  courts.  The  power  of  administrative 
authorities, such as the Hellenic Police, to impose detention has in itself been 

24 

25 

The  case-law  collected  for  this  article  is  the  product  of  extensive  desk-based 
research.  Requests  were  also  sent  to  legal  representatives  and  the  judiciary  to 
obtain copies of specific judgments. 
Art  30(1)  of  Law  3907/2011  'Establishment  of  an  Asylum  Service  and  a  First 
Reception  Service,  Transposition 
into  Greek  Legislation  of  Directive 
2008/115/EC  and  Other  Provisions'  (GG  A'  7/26.01.2011)  as  amended;  Law 
3386/2005 'Entry, Residence and Social Integration of TCNs on Greek Territory' 
(GG A' 212/23.08.2005) as amended, art 76(3). 

 
 
 
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A Shortfall of Rights and Justice 

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the subject of debate in Greek scholarship, and its constitutionality has been 
questioned.26  

Detention with a view to deportation is permissible on one or more of the 
following  grounds:  when  there  is  a  risk  of  absconding;  when  the  TCN 
hampers  the  removal  process;  and  when  justified  by  reasons  of  national 
security  or  public  order.27  Before  the  latest  legislative  reform  (effective  12 
May 2020),28 detention could be prescribed only as a last resort if there were 
no less coercive alternatives available. This requirement was consistent with 
EU law, which requires the use of detention to be limited and subject to the 
principle of proportionality.29 The latest legislative amendment has altered 
this  requirement,  providing  for  migrants  awaiting  removal  to  be  placed  in 
detention unless the conditions for less coercive alternatives are met.30 The 
new  wording  seems  to  suggest  that  pre-removal  detention  is  generally 
allowed, unless the principles of necessity and proportionality would require 
otherwise.31  Such  a  wide  use  of  detention  raises  issues  with  the  letter  and 
spirit of the EU Return Directive.32 

26 

27 

28 

29 

30 

31 

32 

Georgios Dafnis, 'Δικαίωμα  στην  Ελευθερία.  Περιορισμοί  των  Περιορισμών  του 
Δικαιώματος'  ['Right  to  Liberty:  Restrictions  on  Restrictions  on  the  Right'] 
[2016-2017]  Επετηρίδα  Δικαίου  Προσφύγων και  Αλλοδαπών  [Yearbook  of 
Refugee and Aliens Law] 501, 502. 
Law  3386/2005  (n 25)  art  76(1)  also  allows  the  detention  of  TCNs  for  the 
protection  of  public  health.  Several  contributions  highlight  that  by  including 
national security/public order the Greek law expands the list of grounds foreseen 
in the Return Directive (n 5) and violates EU law. E.g. Koutsouraki (n 11) 90. 
Law 4686/2020 (n 22) art 51 (amending Law 3907/2011 (n 25) art 30). 
Return Directive (n 5) recital 16. 
The  conditions  are  as  follows:  the  police  authorities  must  deem  the  use  of 
alternatives  to  be  effective  and  there  must  be  no  risk  of  absconding,  no 
obstructions to the return procedure and no national security concerns. 
Άρθρο  52  Τροποποίηση  άρθρου  30  του  ν.  3907/2011  [Article  52  Amendment  of 
Article  30  of  Law  3907/2011]  (Μετανάστευσης  και  Ασύλου  Δικτυακός  Τόπος 
Διαβουλεύσεων  [Ministry  of  Migration  and  Asylum  Consultation  Website]) 
2 
<http://www.opengov.gr/immigration/?p=1371#comments> 
December 2020 (comments on draft legislation). 
'[...]  The  order  in  which  the  stages  of  the  return  procedure  established  by 
Directive 2008/115 are to take place corresponds to a gradation ... which goes from 
the measure which allows the person concerned the most liberty ... to measures 

accessed 

 
 
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In terms of administrative practice, neither the old nor the new wording has 
had a particular impact on Greece's pre-removal detention policies. Already 
under  the  previous  legislative  framework  alternative  measures  were  rarely 
considered  by  the  Hellenic  Police  in  issuing  detention  orders.  Moreover, 
judicial  practice  on  the  necessity  of  pre-removal  detention  and  the  use  of 
alternatives  has  been  highly  inconsistent.  In  some  cases,  when  alternatives 
did exist, challenges to pre-removal detention before courts were successful.33 
However,  the  judges  in  these  cases  often  failed  to  adequately  explain  the 
purpose  of  the  measures  they  ordered  in  lieu  of  detention.  Having  first 
established that there were no legitimate grounds for detaining the TCNs, 
they then imposed alternatives instead of ordering the TCNs' unconditional 
release  as  foreseen  by  Greek  law.34  Even  more  concerningly,  other  courts 
upheld  the  detention  orders  and  summarily  dismissed  the  existence  of 
alternatives without a substantive examination.35 The new wording of the law 
(as  mentioned  earlier),  which  appears  to  deviate  from  EU  standards,  is 
unlikely  to  result  in  a  more  coherent  jurisprudence.  Some  early  judgments 
appear  to  suggest  that  it  has  had  little  impact  on  resolving  long-standing 
ambiguities.36  

The  second  form  of  administrative  detention  provided  for  in  Greek  law  is 
asylum  detention,  which,  as  the  name  suggests,  applies  only  to  asylum-
seekers. The requirements for this measure in Greek law vary from those for 
pre-removal detention, affording, in principle, higher levels of protection to 

33 

34 

35 

36 

which restrict that liberty  the most, namely  detention  in a specialized facility'. 
Case C-61/11 PPU, Hassen el Dridi alias Soufi Karim EU:C:2011:268, para 41. 
Koutsouraki (n 11) 89. 
Papapanagiotou-Leza  and  Kofinis  (n 18)  281.  Under  Greek  law,  restrictions  of 
movement  can  be  imposed  as  'alternatives  to  detention'  only  if  there  are 
legitimate grounds for detaining the TCN in the first place. Law 3907/2011 (n 25) 
art 30; Law 4686/2020 (n 22) art 51. In the absence such grounds, alternatives to 
detention  are  no  longer  justified.  While  restrictions  of  movement  may  still  be 
imposed  on  a  different  legal  basis,  this  requires  a  different  justification,  which 
Greek judgments often fail to provide. For more, see s V.  
Papapanagiotou-Leza and Kofinis (n 18) 281.  
E.g. Administrative Court of Thessaloniki, Decisions 116/2020 and 139/2020 and 
Administrative Court of Athens, Decision 1091/2020 and 1089/2020, all of which 
considered  detention  to  be  necessary,  summarily  dismissing  the  availability  of 
alternatives. 

 
 
 
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A Shortfall of Rights and Justice 

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the  migrant.  Asylum  detention  can  only  'exceptionally'  be  imposed,  if 
necessary, following an individual assessment and as a last resort if there are 
no effective alternatives. Notably, judges' appraisal of the availability of less 
coercive measures has been highly inconsistent also in this context.37 The law 
further  sets  forth  an  exhaustive  list  of  grounds  justifying  asylum-seekers' 
detention, largely drawn from EU law: to determine the person's identity or 
nationality;  to  verify  the  asylum  claims,  especially  if  there  is  a  risk  of 
absconding;  if  the  asylum  seeker  seeks  to  obstruct  a  pending  return 
procedure;  to  decide  on  the  person's  admission  into  the  territory;  and  for 
reasons of national security or public order.38  

Asylum detention has been widely used in administrative practice. Persons 
seeking  international  protection  have  routinely  been  arrested  before  being 
able to submit their application due to the obstacles in accessing the asylum 
procedure.39 Asylum-seekers whose applications get registered, and who are 
thus  lawfully  present  in  the  country,  are  also  often  placed  in  detention  or 
continue  to  be  detained,  on  varying  grounds,  if  already  in  pre-removal 
detention.40 

Before  the  latest  legislative  reform  of  2020,  Greek  courts  were  divided  on 
whether  asylum  detention  could  be  applied  solely  to  TCNs  who  were 
submitting  asylum  claims  while  already  in  detention  or  to  all  asylum-seekers, 
including those who had applied for asylum in liberty, prior to any arrest.41 

37 

38 

39 

40 

41 

Law 4636/2019 (n 22) art 46. Compare Administrative Court of Rhodes, Decision 
580/2020, upholding the detention order despite a contrary recommendation by 
the  Asylum  Service  and  the  applicant's  suggestion  to  stay  in  a  shelter; 
Administrative Court of Mytilene, Decision 44/2020 and Administrative Court 
of Athens, Decision 882/2020, striking down the detention order but nonetheless 
ordering the applicant to reside at a specific address and report regularly to the 
police; Administrative Court of Athens, Decision 1003/2020, not examining the 
availability of alternatives at all. 
Ibid; Recast Reception Conditions Directive (n 5) art 8. The Greek law foresees 
detention  also  during  the  Dublin  procedure  if  there  is  a  considerable  risk  of 
absconding. The Greek jurisprudence on this matter is, however, scant. 
Koutsouraki (n 11) 91-93. 
Faitas (n 19) 129; Papadopoulos, 'Commentary on Decision 414/2019' (n 20) 332; 
Greek Refugee Council (n 20).  
Papadopoulos, 'Commentary on Decision 414/2019' (n 20). 

 
 
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The  most  recent  legislative  reform  resolves  the  issue,  upholding  the  latter 
view: asylum-seekers can be detained independently of whether they applied 
for  asylum  in  detention  or  in  liberty.  Although  this  position  does  not 
necessarily  contradict  EU  law,42  it  is  more  restrictive  to  asylum-seekers' 
liberty than older laws.43  

For the purposes of the present analysis, what is important to retain is that 
ambiguities and controversies in the Greek law of immigration detention all 
too often are not resolved through domestic judicial channels. In effect, they 
are indirectly deferred to the executive instead. This is not only inefficient, 
but also insulates the government and the legislature from the kind of judicial 
review that would limit their powers and promote rights protection. Indeed, 
practices of indiscriminate and systematic detention hold a central place in 
Greece's  migration  management  policy,  often  in  defiance  of  supranational 
and even national legal safeguards.44 

Throughout  the  2000s,  Greek  police  authorities  widely  detained 
undocumented migrants with a view to their deportation, or as a means of 
preventive control, with the justification that they posed a threat to public 
order or were at risk of absconding.45 This generalized detention policy all too 
often interfered with TCNs' access to the asylum procedure (already difficult 
due  to  the  lack  of  a  proper  asylum  service  up  until  2013).  The  Greek 

42 

43 

Recast Reception Conditions Directive (n 5) arts 8-9. 
Law  4636/2019  (n 22)  art  46(2)-(3).  See  also  'Άρθρο  46  (Άρθρα  8  και  9  Οδηγίας 
2013/33/EE) Κράτηση των αιτούντων'  ['Article 46 (Articles 8 and 9 of Directive 
2013/33/EU} Detention of Asylum-Seekers'] (Υπουργείο Προστασίας του Πολίτη 
Δικτυακός Τόπος Διαβουλεύσεων [Ministry for Citizen Protection Consultation 
Website] 
2 
legislation  submitted  for  public 
December  2020 
consultation). 

<http://www.opengov.gr/yptp/?p=2188#comments> 

(comments  on  draft 

accessed 

44  Ministry of Public Order and Citizen Protection 'Greek Action Plan on Asylum 
and  Migration  Management.  Executive  Summary'  (European  Parliament, 
December 
2012)  Chapter  4  <https://www.europarl.europa.eu/meetdocs/ 
2009_2014/documents/libe/dv/p4_exec_summary_/p4_exec_summary_en.pdf> 
accessed  22  January  2022;  Υπουργείο  Μετανάστευσης  και  Ασύλου  [Ministry  for 
Migration and Asylum], 'Ετήσιο Σχέδιο Δράσης 2021 [Annual Action Plan 2021]' 
(2021)  Objective  4  <https://www.government.gov.gr/wp-content/uploads/2021/ 
03/Υπουργείο-Μετανάστευσης-και-Ασύλου.pdf> accessed 22 January 2022. 
Koutsouraki (n 11) 96 

45 

 
 
 
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A Shortfall of Rights and Justice 

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Ombudsman  reported  in  2013  that  the  Hellenic  Police  routinely  failed  to 
distinguish  the  different  categories  of  TCNs  and  the  varying  provisions 
applying to each.46 Instead, it subsumed all TCNs into one all-encompassing 
group  and  employed  an  expanded  conception  of  danger  to  public  order  to 
justify  their  detention.47  In  2014,  the  police  authorities  pursued  a 
controversial  policy  of  indefinite  detention,  exceeding  the  maximum  time 
limits  laid  down  by  EU  law  and  Greek  law  itself.  Notably,  Greece's  legal 
advisory  body,  the  Legal  Council  of  the  State,  issued  a  highly  criticized 
advisory opinion in support of this policy.48 

The  coming  to  power  of  a  left-dominated  government  in  2015  signaled  a 
partial,  albeit  short-lived,  shift  in  state  policy  and  practice.  The  newly 
installed government initially announced measures that sought to drastically 
reduce the use and duration of immigration detention.49 In the course of the 
same year, however, a sharp increase of irregular arrivals from Syria and other 
war-torn countries,50 the subsequent closure of the 'Balkan corridor' in early 

46 

47 

48 

49 

50 

Συνήγορος  του  Πολίτη  [Greek  Ombudsman],  'Αυτοψίες  στα  κέντρα  κράτησης 
αλλοδαπών  Αμυγδαλέζας  και  Κορίνθου  και  στους  χώρους  κράτησης  της  ∆/νσης 
Αλλοδαπών  Αττικής  στην  οδό  Πέτρου  Ράλλη.  Προβλήματα  και  προτάσεις.' 
['Inspection of Amygdaleza and Corinth Detention Centres and of Attica Aliens 
Directorate  Holding  Facilities  at  Petrou  Ralli  Street.  Problems  and 
Recommendations.']  (2013)  <https://www.synigoros.gr/resources/diapistwseis-
stp-29-05-2013--2.pdf> accessed 21 January 2022. 
Koutsouraki  (n 11)  100;  Danai  Angeli  and  Anna  Triandafyllidou, 
'Is  the 
Indiscriminate  Detention  of  Irregular  Migrants  a  Cost-Effective  Policy  Tool? 
The  Case  Study  of  Amygdaleza  Pre-Removal  Center'  (2014)  ELIAMEP  Midas 
Policy  Brief  <http://www.eliamep.gr/wp-content/uploads/2014/05/Policy-brief_ 
the-case-study-of-Amygdaleza-1.pdf> accessed 2 December 2020.  
Legal Council of the State, Advisory Opinion 44/2014, published on 24 February 
2014; Triandafyllidou, Angeli and Dimitriadi (n 15).  
Koutsouraki (n 11) 97.  
Ελληνική  Αστυνομία  [Hellenic  Police], 
'Statistics  on  Illegal  Migration' 
['Στατιστικά  στοιχεία  παράνομης  μετανάστευσης  2015']  (2015)  <http://www. 
astynomia.gr/index.php?option=ozo_content&lang=%27..%27&perform=view&i
d=50610&Itemid=1240&lang=> accessed 22 January 2022. 

 
 
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2016,51 the entry into force of the EU-Turkey statement in March 2016,52 and 
pressures from the EU for quick and effective deportations,53 placed renewed 
emphasis on detention. 

Shifts in administrative detention practices came with changes in a 2016 law 
that paved the way for the implementation of the EU-Turkey statement. The 
new law permitted the potentially continuous detention of TCNs from the 
initial  stage  of  reception,  identification  and  processing  of  an  asylum 
application to the pre-removal phase.54 It also sought to enhance detainees' 
procedural safeguards applicable to immigration detention, in line with EU 
standards.55 Among the most important provisions was the establishment of 
ex  officio  periodic  review  of  the  legality  of  detention  order  by  the  Greek 
courts.  Nonetheless,  the  contribution  of  this  ex  officio  judicial  control  in 
restraining arbitrary detention practices was arguably limited.56  

With  the  coming  to  power  of  the  center-right  government  of  New 
Democracy in 2019, a shift to a 'closed-centers' policy formed the basis for 
more  revisions  of  the  law  of  immigration  detention  in  a  rights-restrictive 

51 

52 

53 

54 

55 

56 

Between 2015 and 2016, more than 1,1 million TCNs crossed from Turkey into 
Greece though the Eastern Aegean islands. The vast majority continued to the 
mainland and through the so-called Balkan corridor (North Macedonia, Bulgaria 
and Serbia) to central and northern European countries. This lasted until March 
2016, when many of those countries closed their borders. 
'EU-Turkey  statement,  18  March  2016'  (European  Council,  18  March  2016), 
<https://europa.eu/!Uk83Xp> accessed 2 December 2020 (press release). 
European Commission, 'Communication from the Commission to the European 
Parliament and to the Council: EU Action Plan on Return' (9 September 2015) 
COM/2015/0453  final  <https://eur-lex.europa.eu/legal-content/EN/TXT/?uri= 
CELEX:52015DC0453> accessed 2 December 2020.  
Law 4375/2016 'Organization and Operation of the Asylum Service, the Appeals 
Authority,  the  Reception  and  Identification  Service,  Establishment  of  the 
General  Secretariat  for  Reception,  Transposition  into  Greek  Legislation  of 
Directive 2013/32/EC' (A' 117/22.06.2016) arts 14, 36 and 46; Koutsouraki (n 11) 98; 
Angeliki Dimitriadi, 'Governing Irregular Migration at the Margins of Europe – 
The  Case  of  Hotspots  on  the  Greek  Islands'  (2017)  1  Etnografia  e  Ricerca 
Qualitativa 75. 
Law 4375/2016 (n 54) art 46, transposing Recast Asylum Procedures Directive (n 5) 
art 26 and Recast Reception Conditions Directive (n 5) arts 8-11. 
Koutsouraki (n 11) 93. 

 
 
 
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direction.57  These  expanded  the  grounds  and  duration  of  detention  and 
extended  the  maximum  time-period  during  which  TCNs  could  be  held  in 
immigration detention (asylum and pre-removal detention) to 36 months.58 
Crucially,  it  also  abolished  the  ex  officio  judicial  review  of  initial  detention 
orders. The centrality of detention in Greece's migration management, often 
in defiance of legal norms, renders all the more important the judicial review 
of detention orders.59 In practice, though, the judiciary has played a relatively 
limited role in restraining arbitrary detention practices. 

III. JUDICIAL CONTROL OF IMMIGRATION DETENTION IN THE GREEK 
CONTEXT 

Greece  has  a  diffused  system  of  judicial  review  that  in  principle  allows  all 
courts to engage in constitutional review of fundamental rights. In practice, 
Greece's  lower  courts,  lacking  the  necessary  authority  and  possibly  the 
necessary capacity, follow the decisions of the higher courts. The result has 
been the de facto concentration of judicial review in the CoS and the Supreme 
Court of Greece (Areios Pagos), Greece's highest courts on administrative and 
criminal matters, respectively.60 The CoS is the highest appeal court that also 
engages  in  incidental  constitutional  review  in  concreto:  it  reviews  statutory 
provisions in the context of deciding a specific case.61 It stands at the apex of 
a  unified  structure  of  administrative  justice  that  comprises  nine  appeals 
courts (Efeteia) and 30 first instance courts (Protodikeia). Given the absence of 
a constitutional court in Greece, petitioners can challenge before the CoS the 
constitutionality of the administrative acts that are issued to implement the 

57 

58 

Law 4636/2019 (n 22); Law 4686/2020 (n 22). 
Law 4636/2019 (n 22) art 46. 

60 

2019) 

59  Minos  Mouzourakis,  'All  but  Last  Resort:  The  Last  Reform  of  Detention  of 
Asylum  Seekers  in  Greece'  (EU  Immigration  and  Asylum  Law  and  Policy,  18 
November 
<http://eumigrationlawblog.eu/all-but-last-resort-the-last-
reform-of-detention-of-asylum-seekers-in-greece/> accessed 2 December 2020. 
Julia Iliopoulos-Strangas and Stylianos-Ioannis G Koutnatzis, 'Greece', in Allan 
R  Brewer-Carias  (ed),  Constitutional  Courts  as  Positive  Legislators  (Cambridge 
University Press 2011) 546.  
Epaminondas  Spiliotopoulos,  'Judicial  Review  of  Legislative  Acts  in  Greece' 
(1983) 56 Temple Law Quarterly 463. 

61 

 
 
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laws  passed  in  Parliament.62  The  constitutional  evolution  of  the  post-1974 
Greek polity (established after a seven-year long dictatorship), alongside the 
influence of European Community (EC) law (Greece joined the EC in 1981) 
and the European Convention of Human Rights (ECHR), contributed to the 
empowerment of the CoS to engage in judicial review, including rights-based 
review.  

The  judicial  review  of  immigration  detention,  however,  markedly  deviates 
from  the  overall  structure  of  judicial  review  of  administrative  acts  as 
described above. The judicial control of immigration detention is assigned to 
first instance administrative courts (Protodikeia), and their decisions are final. 
TCNs  held  in  administrative  detention  have  the  right  to  challenge  the 
legality  of  the  detention  order  only  before  the 
local  first-instance 
administrative  court.  The  remedy  is  known  in  the  Greek  legal  order  as 
"objections against detention" (hereafter "objections") and is available under 
the  same  terms  both  to  asylum-seekers  and  irregular  migrants  awaiting 
removal;63 it applies both to the initial detention order and any subsequent 
orders extending the detention.64 The judicial procedure is governed by the 
rules  of  interim  measures.  Objections  can  be  filed  at  any  time  during  the 
duration  of  the  detention.65  The  application  cannot  be  abstract;  it  must 
invoke concrete reasons for which the detention is not lawful, in written form 
or orally, and all supporting evidence needs to be submitted immediately.66 
Given  the  disadvantageous  position  in  which  detainees  find  themselves, 
judges have the flexibility to accept evidence otherwise not admissible. This 
has led to inconsistent practices of evaluation of evidence.67 A single judge, 

62 

63 

64 

65 

66 

67 

Nikos Alivizatos, Το σύνταγμα και οι εχθροί του στη νεοελληνική ιστορία: 1800-
2010 ['The Constitution and its Enemies in Modern Greek History 1800-2010'] 
(Ekdoseis Polis 2011) 541. 
Law 3386/2005 (n 25) art 76(4)-(5), referenced in Law 3907/2011 (n 25) art 30(2) and 
Law 4636/2019 (n 22) art 46(6). 
Law  2690/1999  'Code  of  Administrative  Procedure'  (GG  A'  45/09.03.1999)  as 
amended, arts 27(2)(c) and 204(1). Faitas (n 19). 
Faitas  argues  that  objections  should  be  possible  from  the  moment  of  actual 
detention, even before a detention order has been issued. Faitas (n 19). 
Ibid. 
There  is  wide  divergence  regarding  the  admissibility  of  signed  declarations  as 
proof of residence. Compare Administrative Court of Athens, Decision 882/2020 
and Administrative Court of Nafplio, Decision 23/2017, accepting such evidence, 

 
 
 
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the  president  of  the  local  court,  examines  the  application  and  issues  a 
decision immediately.68 If the judge decides that the detention is unlawful, 
the applicant must be immediately released. 

Greek law expressly stipulates that the decision of the first instance court is 
not  subject  to  any  kind  of  appeal.  In  case  of  a  negative  outcome,  the  only 
option available to the detainee is an application with the same first instance 
court to have the decision revoked on the basis of fresh evidence.69 While it 
remains  subject  to  debate,  seeking  asylum  or  submitting  a  new  asylum 
application generally counts as fresh evidence.70 However, this procedure is 
not  considered  a  true  appeal  remedy,  because  it  does  now  allow  a  re-
examination of the same matter and possible correction of errors of fact or 
law.71 Furthermore, this limited judicial review only covers detention issues. 
Restrictions  of  movement  falling  short  of  deprivation  of  liberty,  such  as 
assigned  residence  or  geographical  limitations  (like  those  imposed  on  the 
Greek islands since the 2016 EU-Turkey statement), can only be challenged 
through the regular administrative procedure.72  

Since 2010, the CoS has the authority to issue so-called pilot judgments. It 
can  issue  such  judgments  by  assuming  the  examination  of  any  application, 
appeal or other remedy pending before any administrative court that involves 
a matter of general interest and that may have legal consequences for a wide 
range of individuals.73 The CoS may initiate this pilot judgment procedure in 
response  to  a  request  either  by  one  of  the  applicants  or  by  the  general 

68 

69 
70 

71 

72 

73 

with  Administrative  Court  of  Thessaloniki,  Decision  467/2014,  declaring  such 
evidence inadmissible. 
Law 2690/1999 (n 64) art 205(5); Law 3386/2005 (n 25) art 76(4)-(5). 
On the debate over what counts as fresh evidence, see Simou (n 17) 35. 
Administrative Court of Athens, Decision 599/20. 
HA  v  Greece,  App  no  58387/11  (ECtHR,  21  January  2016);  Papadopoulos, 
'Commentary on Decision 414/2019' (n 20). 
Law 4636/2019 (n 22) art 112. Law 4636/2019, art 39(4) provides a right of objection 
against restrictions imposed in the context of reception.  It is debated whether 
these  restrictions  amount  to  de  facto  detention.  In  practice,  there  is  no  known 
case-law on this issue. Dafnis (n 26). 
Law  3900/2010 
'Rationalization  and  Acceleration  of  Proceedings  before 
Administrative  Courts  and  Other  Provisions'  (GG  A'Government  Gazette  A' 
213/17.12.2010) as amended, art 1. 

 
 
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commissioner of the administrative courts. This judicial avenue, at least in 
principle,  makes  it  possible  for  the  CoS  to  pronounce  on  the  legality  of 
detention orders. To this day however, no request for a pilot judgment has 
been  made  regarding  either  asylum  or  pre-removal  detention.  The  reasons 
remain  unclear  but  can  be  partially  attributed  to  legal  representatives' 
concerns that an unfavorable ruling might be issued, with potentially wide-
ranging and adverse implications for migrants' rights.74 

The overall institutional design and in particular the lack of a right of appeal 
do  not  bring  the  Greek  judicial  review  system  into  direct  conflict  with 
international  and  EU  legal  standards.  In  laying  down  the  right  to  judicial 
protection  against  arbitrary  detention,  neither  EU  law  nor  the  ECHR 
prescribe  a  specific  court  system;  nor  do  they  require  a  second  level  of 
jurisdiction.75  However,  both  EU  law  and  the  ECHR  require  courts  to 
perform their supervisory role effectively. The judicial control of detention 
needs  to  meet  certain  quality  standards,  such  as  speediness,76  accessibility, 
effectiveness  and  procedural  fairness.77  National  provisions  precluding  the 
courts from exercising their supervisory function are incompatible with these 
standards.78 

In  Greece,  the  allocation  of  judicial  review  of  immigration  detention  to  a 
single lower-court judge, who must issue a final decision immediately, ensures 
speed and flexibility. Yet, at the same time, it undermines the principle of 
fairness  and  the  quality  of  judicial  control  necessary  to  ensure  that  any 

74 

75 

76 

77 

78 

In  2013,  the  CoS  struck  down  as  unconstitutional  a  law  allowing  second 
generation migrants to apply for Greek nationality. CoS, Decision 460/2013. For 
more on this, see Section V. 
See, however, Case C-704/17 DH v Ministerstvo vnitra EU:C:2019:85, Opinion of 
AG Sharpston, para 64. 
Return Directive (n 5) art 15; Recast Reception Conditions Directive (n 5) art 9. 
A  and  others  v  the  United  Kingdom  [GC]  App  no  3455/05  (ECtHR,  19  February 
2009) paras 202-204; Case C-146/14 PPU Bashir Mohamed Ali Mahdi v the Director 
of the Directorate for Migration at the Ministry of Interior EU:C:2014:1320; Khlaifia 
and others v Italy [GC] App no 16483/12 (ECtHR, 15 December 2016) paras 131-132; 
OSA  and  others  v  Greece  App  no  39065/16  (ECtHR,  21March  2019)  para.  52  Al 
Husin v Bosnia-Herzegovina (2) App no 10112/16 (ECtHR, 25 June 2019) paras 114-
115. 
DH, Opinion of AG Sharpston (n 75) para.70. 

 
 
 
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deprivation  of  liberty  is  lawfully  imposed.  The  accelerated  examination 
procedure prevents TCNs from effectively presenting their case and judges 
from conducting a comprehensive review.79 The overly expedited nature of 
the remedy, alongside the summary reasoning provided in many decisions, all 
too often results in a kind of judicial review that lacks the comprehensiveness 
and consistency suitable for safeguarding the fundamental right to liberty.  

Taking  into  account  the  institutional  design  of  domestic  judicial  review  of 
immigration detention described above, the existence of an appeal remedy 
should be essential. Its absence in Greece is thoroughly detrimental to the 
integrity  of  judicial  control  over  the  use  of  immigration  detention, 
undermining legal certainty and the possibility of remedying any errors in fact 
or  law.  Legislative  ambiguities  do  not  get  resolved  through  a  higher  court 
ruling. Instead, they are addressed separately by each individual judge on a 
case-by-case basis. While this has on occasion led to a dynamic jurisprudence, 
it  has  also  led  to  disparities  in  legal  reasoning,  at  times  wide  enough  to 
generate  inconsistent  and  unpredictable  legal  outcomes.  The  lack  of  a 
domestic  appeal  remedy  has  rendered  recourse  to  the  ECtHR  or  other 
international  human  rights  mechanisms  the  only  available  legal  avenue. 
Unsurprisingly, Greece has one of the highest numbers of ECtHR judgments 
finding violations connected to the nature of the domestic judicial review of 
immigration  detention.80  They  expose  the  practical  difficulties  that  TCNs 
face in seizing domestic courts and in explaining their situation, the lack of 
adequate justification for judgments and the failure of the judges to review all 
relevant  grounds.  Repeated  recourse  to  the  ECtHR,  though,  is  not  only 
inefficient,  but  also  contradicts  the  fundamentally  subsidiary  role  of 
international courts. 

The interpretative disparities in the Greek jurisprudence are epitomized by 
the divergence of judges on two fundamental questions: first, the legal nature 
of  detention  and  in  particular  the  distinction  between  asylum  and  pre-
removal detention; and second, the definition of detention as reflected in the 
distinction  between  deprivation  of  liberty  and  restrictions  of  liberty.  The 
next  two  sections  of  this  article  present  and  analyze  these  normative  and 

79 

80 

Ibid. 
See cases cited in n 12. 

 
 
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analytical  inconsistencies  in  the  Greek  jurisprudence  on  immigration 
detention. 

IV. ASYLUM DETENTION OR PRE-REMOVAL DETENTION? 

Greek law, as noted earlier, distinguishes between asylum- and pre-removal 
detention and lays down stricter requirements for asylum detention.81 This 
basic distinction, which is aligned with EU law, is generally endorsed by the 
first instance administrative courts. Depending on the legal status of a TCN 
as an asylum seeker or an irregular migrant awaiting deportation, the Greek 
judges  assess  the  legality  of  the  detention  order  in  light  of  the  conditions 
attached  to  the  respective  type  of  detention.  However,  first  instance 
administrative  courts  have  struggled  to  maintain  a  consistent  approach  in 
cases where a TCN gains or loses the asylum seeker status whilst already in 
detention  –  in  other  words,  where  the  TCN  alternates  between  the  two 
regimes. 

It is important to note here that the interpretative discrepancies regarding 
the nature of the detention – as asylum- or pre-removal detention – are not 
just  of  theoretical  interest.  They  have  far-reaching  legal  and  practical 
consequences, as the applicable rules and parameters of judicial control differ 
significantly.  Early  case-law  of  Greece's  administrative  courts  failed  to 
distinguish clearly between the two legal regimes, accepting that a TCN who 
applies for asylum whilst in detention could continue to be held in detention 
with  a  view  to  deportation.82  The  issue  was  resolved  through  ECtHR 
rulings.83 It is now generally accepted that when a TCN applies for asylum 
while in detention, his or her legal status changes – from irregular migrant to 
asylum seeker – and any further deprivation of liberty needs to be justified in 

81 

82 

83 

Papadopoulos  argues  that  this  distinction  is  reflected  in  the  ECtHR  case-law. 
Papadopoulos, 'Commentary on Decision 414/2019' (n 20). 
Administrative  Court  of  Alexandroupoli,  Decision  75/2007;  Administrative 
Court of Alexandroupoli, Decision 76/2007; Aministrative Court of Kommotini, 
A160/2009. 
SD v Greece App no 53541/07 (ECtHR 11 September 2009); RU v Greece App no 
2237/08 (ECtHR, 7 June 2011). 

 
 
 
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A Shortfall of Rights and Justice 

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accordance with asylum law. Continued detention based on the initial pre-
removal detention order is generally considered unlawful.84 

Nonetheless,  two  fundamental  issues  remain  unresolved  to  date  and  have 
resulted in conflicting judicial outcomes: (a) when does asylum seeker status 
start and (b) when does asylum seeker status cease? The first issue concerns a 
disagreement  about  the  exact  moment  in  which  asylum  seeker  status  is 
acquired and the rules of asylum detention start to apply. Is it only when the 
asylum application has been fully registered, or already when the TCN first 
indicates,  orally  or  in  writing,  their  intention  to  apply  for  asylum?  Both 
approaches can be found within the Greek jurisprudence.  

Until at least 2016, the prevalent opinion was that the mere expression of the 
intention to seek asylum was not sufficient and a completed registration of 
the application was required.85 In one such case, a detainee notified the police 
authorities  in  writing  that  he  wished  to  apply  for  asylum,  but  they  only 
registered  his  intention  a  month  later,  after  he  had  also  submitted  his 
passport.  During  that  period,  the  applicant  remained  in  pre-removal 
detention, which the reviewing judge found to have been lawful. According 
to the judge, the mere expression of intention did not change the applicant's 
irregular  status,  which  also  required  the  applicant's  collaboration  to  help 
verify  his  identity.  Thus,  his  detention  from  the  moment  he  expressed  his 
intention until the moment his identity was verified constituted pre-removal 
detention and its legality had to be assessed on that basis.86  

This  line  of  interpretation,  however,  is  at  odds  with  the  ECtHR  case-law, 
according to which TCNs should not be deprived of the guarantees afforded 
to asylum-seekers for the mere fact that they have been unable to have their 

84 

85 

86 

Administrative  Court  of  Trikala,  Decision  17/2016;  Administrative  Court  of 
Larissa, Decision 148/2018; Administrative Court of Kavala, Decision 407/2018. 
See, however, Administrative Court of Rhodes, Decision 580/2020, mentioning 
that  the  existence  of  a  pending  asylum  application  does  not  preclude  a  TCN's 
detention with a view to deportation, since the asylum claim may eventually be 
rejected. 
Simou (n 17). 
Administrative Court of Thessaloniki, Decision 467/2014; Administrative Court 
of Kommotini, Decision 5/2015. 

 
 
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asylum  application  registered.87  It  also  raises  issues  with  EU  asylum  law, 
according to which a TCN who expresses the intention to apply for asylum 
falls outside the scope of the Return Directive.88 In the absence of an appeal 
procedure  in  the  Greek  system,  TCNs  in  that  situation  had  no  domestic 
remedy available to challenge these decisions. 

Legislative amendments since 2016 expressly state that persons who declare 
their  intention  to  submit  an  asylum  application  are  asylum-seekers, 
seemingly  resolving  this  issue.89  Nonetheless,  some  legal  ambiguity  has 
remained,  as  the  law  provides  elsewhere  that  an  asylum  application  is 
considered  completed  only  after  it  has  been  registered  by  the  asylum 
authorities.90 In response to these amendments, several lower administrative 
court  judgments  have  since  held  that  the  asylum  seeker  status  is  acquired 
when TCNs declare their intention to apply for asylum and that, from that 
moment  on,  any  detention  must  conform  with  asylum  law.91  Nonetheless, 
even amongst those judgments, the legal reasoning remains ambivalent and 
inconsistent. Some judgments, for instance, note that the intention to apply 
for  asylum  is  not  equivalent  to  a  completed  asylum  application,  but 
nonetheless apply asylum law to examine the legality of the detention.92 Many 

87 

88 

89 

90 

91 

92 

AEA  v  Greece  App  no  39034/12  (ECtHR,  15  March  2018)  para  85;  Klondine 
Prountzou, 'Ο χρόνος απόκτησης της ιδιότητας του αιτούντος άσυλο και ανάληψης 
ευθύνης  από  το  κράτος  υποδοχής'  ['The  Time  of  Acquisition  of  Asylum  Seeker 
Status and of Assumption of Responsibility by the Country of Reception'] (2020) 
2 Διοικητική Δίκη [Administrative Litigation] 249. 
Case C-329/11 Alexandre Achughbabian v V Préfet du Val-de-Marne EU:C:2011:807, 
para  29;  Prountzou  (n 87)  249-250.  Papapanagiotou-Leza  and  Kofinis  (n 18)  289 
argue that the domestic judge misread the CJEU ruling in the Achughbabian case. 
Law 4375/2016 (n 54) subsequently replaced by Law 4636/2019 (n 22). 
Law  4375/2016  (n 54)  art  36  para  3;  Law  4636/2019  (n 22)  art  65  para  8;  Law 
4686/2020 (n 22) art 6 para 4. 
Administrative  Court  of  Trikala,  Decision  17/2016;  Administrative  Court  of 
Komotini, Decision 349/2017; Administrative Court of Larisa, Decision 148/2018; 
Administrative  Court  of  Kavala,  Decision  17/2018;  Administrative  Court  of 
Athens, Decision 599/2020. 
Administrative  Court  of  Corfu,  Decision  57/2020,  para  6,  mentioning  that  the 
intent  to  seek  asylum  is  a  mere  expression  of  a  wish  and  not  a  fully  registered 
asylum  application.  See  also  Administrative  Court  of  Komotini,  Decision 
241/2018. 

 
 
 
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other judgments disagree with this reasoning altogether. They consider that 
a TCN can continue to be lawfully held in pre-removal detention even after 
declaring an intention to seek asylum. It is only after a full asylum application 
has been submitted that the detention must conform with asylum law.93 To 
this day, notwithstanding its fundamental importance and the large number 
of  people  affected,  TCNs'  legal  representatives  have  yet  to  request  a  pilot 
judgment from the CoS on this matter.  

Disagreements also appear at the other end of the line, namely when asylum 
detention ends and the conditions for pre-removal detention can be applied. 
Most first instance administrative judges consider that asylum status ends at 
the  moment  that  the  asylum  application  gets  rejected  at  second  instance, 
after  which  any  continued  detention  of  the  TCN  counts  as  pre-removal 
detention. A very different interpretation, though, was brought forward in a 
recent case involving an unsuccessful asylum seeker from Syria. Following the 
rejection of his asylum application at second instance, he was placed in pre-
removal detention with a view to his readmission to Turkey. The ruling judge 
found the detention unlawful on grounds that the applicant continued to be 
an  asylum  seeker  even  after  the  second-instance  rejection  (until  the 
expiration  of  the  deadline  to  lodge  an  annulment  application  before  the 
higher court 60 days later). Consequently, his detention during that period 
had to conform with Greek asylum law.94 While this judgment represents a 
minority  view  within  the  Greek  jurisprudence,  it  nonetheless  reflects  the 
extent of divergence in the case-law.  

To this day, Greece's judicial review system has been unable  to resolve the 
above  normative  disagreements  in  determining  the  legality  of  detention. 
These  are  more  than  mere  variations  in  the  application  of  certain  laws  in 
different factual circumstances. Rather, they raise the fundamental issue of 
what legal rules should apply in the first place: should it be those of asylum 
detention or pre-removal detention? The result is a thoroughly heterogenous 
jurisprudence,  where  similar  facts  are  reviewed  under  different  laws  and 
principles  –  where  the  outcomes  become  unpredictable  and  the  law  risks 
losing  its  essential  foreseeability.  In  the  absence  of  a  domestic  appeals 

93 

94 

Administrative  Court  of  Athens,  450/2017;  Administrative  Court  of  Corfu, 
Decision 52/2020. 
Administrative Court of Mytilini, Decision 227/2017. 

 
 
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procedure or higher court ruling, it appears that the only judicial avenues left 
to resolve these questions are recourse to international courts or deference 
to the executive. 

V. RESTRICTIONS OF MOVEMENT OR DEPRIVATION OF LIBERTY? 

Another  fundamental  area  of  inconsistency  in  the  Greek  jurisprudence 
concerns the distinction between restrictions of movement and detention. 
In  the  Greek  context,  TCNs  are  often  exposed  to  other  forms  of  physical 
restrictions, besides strict confinement, including the requirement to reside 
at a particular address or in a certain region. Such measures may be imposed 
either as alternatives to detention or as reception arrangements to protect 
public  order  or  a  general  interest  or  to  ensure  the  speedy  examination  of 
asylum claims.95 These measures do not, in principle, constitute detention, 
since they merely restrict the personal liberty of TCNs rather than deprive 
them of it. In the Greek jurisprudence, they are therefore commonly referred 
to  as  restrictions  of  liberty.  Their  lawfulness  is  assessed  against  the  general 
principles  of  necessity  and  proportionality  following  an 
individual 
assessment.96 In the aftermath of the EU-Turkey deal, a general order made 
it possible under Greek law for the administration to order such measures not 
only on an individual basis, but also on a mass scale.97 

95 

96 

97 

Law 3907/2011 (n 25) art 22; Law 4636/2019 (n 22) arts 39 and 45. In practice, judges 
frequently order such restrictions  after having lifted the asylum or pre-removal 
detention without further justification. This judicial practice has been criticized 
on grounds that alternatives cannot be imposed if there is no need for detention 
in  the  first  place.  Vasileios  Papadopoulos,  'Νόμιμοι  περιορισμοί  ελευθερίας 
αιτούντων άσυλο πέραν της κράτησης' ['Lawful Restrictions on Asylum-seekers' 
Liberty  Other  Than  Detention  ']  (Συνέδριο  του  προγράμματος  «Θεμελιώδη 
Δικαιώματα  του  Ανθρώπου  και  η  εφαρμογή  τους»  [Workshop  'Fundamental 
Human  Rights  and  Their  Implementation'],  Athens,  15  January  2018) 
<https://www.gcr.gr/en/news/events/item/776-eisigisi-tou-syntonisti-tis-n-y-tou-
esp-sto-synedrio-tou-programmatos-themeliodi-dikaiomata-tou-anthropou-
kai-i-efarmogi-tous> accessed 2 December 2020; Tsourdi (n 2).  
Dafnis (n 26); Papadopoulos, 'Lawful Restrictions on Asylum-seekers' (n 95). 
Law 4375/2016 (n 54) art 41 (1)(cc), succeeded by Law 4636/2019 (n 22) art 45. 

 
 
 
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Although, in principle, mere restrictions of liberty differ from deprivation of 
liberty, they may nonetheless amount to de facto detention.98 The situation on 
the ground in Greece  is  such that the dividing line between detention and 
other restrictions of movement often becomes blurred in practice. For one 
thing,  the  conditions  in  many  semi-open  camps  and  facilities  are  quite 
restrictive and arguably qualify as detention. Meanwhile, the authorities have 
at times sought to justify certain measures as restrictions of liberty, whereas 
in fact they were detention.99 Both the CJEU and the ECtHR have developed 
criteria to assess the legal nature of the physical restrictions imposed.100 They 
take  into  consideration  both  objective  criteria,  such  as  the  intensity  the 
measure imposed, and subjective elements, like the consent of the individual 
to the impugned measure. On several occasions, both courts have concluded 
that a measure described as restriction in the national order was equivalent to 
detention under European standards.101  

The  conceptual  distinction  between  detention  and  other  restrictions  of 
movement is not systematically addressed in the Greek jurisprudence. In the 
few  cases  in  which  Greek  administrative  courts  have  considered  this 
distinction, they have not taken a consistent normative approach. The depth 
of their disagreement came to the fore in 2014, when the police authorities 
adopted a new administrative practice in respect of pre-removal detention. 
TCNs  who  had  been  detained  for  the  maximum  allowed  duration  of  18 
months  were  not  released  as  required  by  Greek  and  EU  law.  Instead,  they 
were  ordered  to  continue  "residing"  in  the  same  pre-removal  center  until 
their  return  could  be  effectuated.  The  measure  was  labelled  as  'mandatory 
residence' and aimed to ensure that the removal would eventually be carried 
out.102 The state's legal advisor found the practice to be lawful. 103 Despite the 

98 

99 

100 

101 

102 

102 

103 

Guzzardi  v  Italy  (1980)  3  EHRR  333;  Joined  Cases  C-924/19  PPU  and  C-925/19 
PPU FMS and Others v Országos Idegenrendészeti Főigazgatóság Dél-alföldi Regionális 
Igazgatóság and Országos Idegenrendészeti Főigazgatóság EU:C:2020:367. 
Dafnis (n 26); Papadopoulos, 'Lawful Restrictions on Asylum-seekers' (n 95). 
See  cases  cited  in  Dafnis  (n 26)  and  Papadopoulos,  'Lawful  Restrictions  on 
Asylum-seekers' (n 95). 
Ibid. 
Triandafyllidou, Angeli and Dimitriadi (n 15). 
Law 3907/2011 (n 25) art 22. 
Advisory Opinion 44/2014 (n 48). 

 
 
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public  controversy,  TNCs'  legal  representatives  did  not  request  a  pilot 
judgment from the CoS, probably out of concern about the possibility of an 
unfavorable outcome.104  

Instead,  a  number  of  TCNs  filed  objections  before  the  first  instance 
administrative  courts  claiming  that  the  measure  amounted  to  de  facto 
detention. These first instance courts issued contradictory decisions. Some 
courts  found  the  mandatory  residence  in  a  closed  pre-removal  center  to 
amount  to  unlawful  detention.  One  highly  publicized  case  concerned  an 
irregular migrant from Afghanistan, who was ordered to continue "residing" 
in  Amygdaleza  detention  center  after  having  completed  18  months  of 
detention.  The  judge  found  the  measure  to  be  unlawful  detention.  In  his 
reasoning,  the  judge  noted  that  the  applicant's  living  conditions  inside  the 
center were de facto identical to and, therefore, just as grave as those during 
his detention. The judgement highlighted that the administration could not 
prolong a TCN's detention beyond the 18-month rule.105 Other first instance 
administrative courts, though, ruled that assigned residence in a closed pre-
removal  center  did  not  amount  to  detention.  Notably,  in  those  cases  the 
judges did not undertake an assessment of the de facto situation of the TCNs' 
situation,  but  rather  accepted  the  de  jure  classification  of  the  measure  as 
'mandatory residence'. The complaints were rejected as inadmissible, either 
on the grounds that the measure was justified and proportional or that mere 
restrictions  of  movement  fell  outside  the  scope  of  'objections  against 
detention'.106 

According to international standards, detention is a factual situation and any 
measure  resulting  in  intense  physical  restriction  may  amount  to  unlawful 
detention given the particular circumstances of the case. Yet, Greek court 

104 

105 

106 

It had only been a year before that the CoS had struck down as unconstitutional 
a  law  allowing  the  naturalization  of  second-generation  migrants.  Decision 
460/2013 (n 74).  
Administrative  Court  of  Athens,  Decision  2258/2014.  See  also  Achughbabian 
(n 88). 
Administrative  Court of  Komotini, Decision 22/2014;  Administrative Court  of 
Athens, Decision 3551/2014. See also the first instance administrative decisions at 
issue  in  the  communicated  cases  Fallak  v  Greece  App  no  62504/14  (ECtHR,  29 
January 2015) and Lohar/(Esepiel) v Greece  App no 67357/14 (ECtHR, 29 January 
2015) <https://hudoc.echr.coe.int/eng?i=001-152529> accessed 22 January 2022. 

 
 
 
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A Shortfall of Rights and Justice 

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decisions that applied this normative definition had a limited legal impact, 
issued as they were by a lower court that only addressed the facts of one or 
more specific cases. In seeking to understand the reluctance of Greek lower 
court  judges  to  take  a  consistent  approach  in  line  with  international 
standards, the politically laden context of immigration cannot be overlooked. 
Decisions  that  challenged  the  lawfulness  of  assigned  residence  as  de  facto 
detention received a high degree of publicity, as they were at odds with the 
policy of the Greek government. Higher courts are often in a better position 
to  examine  sensitive  and  controversial  matters  and  to  face  the  political 
repercussions of their judgments, compared to lower courts, which may lack 
the necessary authority and experience. 

Given  the  lack  of  an  appeals  mechanism  within  the  Greek  legal  system, 
several  TCNs  who  had  unsuccessfully  challenged  geographical  restrictions 
before  administrative  courts  of  first  instance  sought  redress  before  the 
ECtHR.107 Eventually, the issue was resolved by the executive in 2015, when 
the  new  left-dominated  government  abandoned  the  practice  of  keeping 
TCNs in closed pre-removal centers beyond the maximum 18-month limit. 
This also meant, however, that the legal issue remained unresolved. 

VI. DRAWING COMMON NORMATIVE THREADS: THE COUNCIL OF 
STATE INTERVENTIONS 

Over  the  years,  the  CoS  has,  in  a  few  cases,  engaged  with  the  vexed 
distinctions  between  asylum  and  pre-removal  detention  and  between 
deprivation  and  restriction  of  liberty,  albeit  in  a  peripheral  or  indirect 
manner.  This  section  presents  the  relevant  CoS  rulings.  Notwithstanding 
their  limited  scope,  they  constitute  important  and  potentially  influential 
judicial precedents regarding the scope and importance of the right to liberty 
in the migration context. 

While  the  CoS  does  not  have  the  competence  to  review  immigration 
detention as an appellate court, it has, in a few cases, addressed legal issues 
pertaining to the right to liberty and freedom of movement in the migration 
context.  The  relevant  CoS  rulings  have  had  limited  impact  on  the 
jurisprudence  of  the  lower  administrative  courts,  probably  because  of  the 

107 

Ibid. 

 
 
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in  which 

incidental  manner 
immigration  detention  was  addressed. 
Nonetheless, they are important in that they draw some basic normative lines 
regarding the extent of allowed restrictions and reflect the potential of the 
CoS in settling legal controversies. Notably, some of those rulings were issued 
in a particularly charged political context. 

1. Asylum and Pre-removal Detention 

The CoS has on two occasions underlined the fundamental importance of the 
right to liberty and the need to limit the use of immigration detention. The 
first was in the context of an early and little known 2001 judgment concerning 
a Nigerian national whose deportation could not be carried out for logistical 
reasons. The applicant, who was in pre-removal detention in a police station, 
filed an annulment application against the deportation order before the CoS 
and  a  separate  request  to  suspend  its  implementation  until  the  hearing. 
While the CoS rejected the applicant's request to suspend the order, it also 
seized the opportunity to address the applicant's detention. The CoS noted 
that the applicant's continued detention 'causes him harm, which cannot be 
reversed in the event that his pending annulment application succeeds'.108 It 
ordered  the  applicant's  immediate  release  and  required  him  to  report  on  a 
weekly basis to the local police station instead.  

The legal significance of the above judgment lies in the CoS's recognition that 
immigration detention is inherently traumatic in itself, independently of the 
appropriateness of the detention conditions (which were not examined in the 
specific  judgment).  Notably,  the  CoS  described  the  harm  caused  by 
immigration  detention  as  'irreparable',  thus  suggesting  that  it  should  be 
imposed with utmost caution. It is in recognition of this that the CoS ordered 
the  applicant's  release  and  required  the  use  of  less  restrictive  alternatives 
instead.  Its  approach  in  this  regard  is  aligned  with  contemporary  EU 
standards  on  the  use  of  immigration  detention  as  a  last  resort  measure, 
subject to the principles of necessity and proportionality. The emphasis on 
the gravity of detention stands in juxtaposition to the ease with which some 
Greek  courts  uphold 
in-depth 
examination of its necessity and the use of alternative measures. 

immigration  detention  without  an 

108 

CoS (Suspension Committee), Decision 103/2001 [authors' translation]. 

 
 
 
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A Shortfall of Rights and Justice 

125 

Almost two decades later, in 2018, the CoS reviewed the issue of immigration 
detention in a case of profound political salience for Greek-Turkish relations. 
Following  the  2016  failed  coup  attempt  in  Turkey,  eight  high-ranking 
military  officers,  who  were  accused  of  having  been  involved  in  the  coup, 
sought asylum in Greece, where they were placed in detention. One of the 
officers was recognized as a refugee at second instance, received his refugee 
card  and  was  released  from  detention.109  The  Greek  Ministry  of  Interior, 
though,  appealed  the  asylum  decision  and  obtained  a  provisional  order 
suspending  its  implementation,  following  which  the  applicant  was  again 
placed in asylum detention. The administrative court of Athens found this 
second detention lawful on grounds that the applicant had lost his refugee 
status and regressed to asylum seeker status.110 The applicant subsequently 
applied to the CoS. Due to the significance of the case, the pilot judgment 
procedure was enacted. 

While  the  CoS  was  asked  whether  it  was  legal  to  suspend  the  applicant's 
refugee status, it also took the opportunity to address on its own initiative the 
legal nature of detention when there is a change in the applicant's legal status 
– in this case, from asylum seeker to refugee. The CoS clarified that, although 
it  was  in  principle  possible  to  suspend  the  implementation  of  a  decision 
granting  refugee  status,111  such  suspension  could  not  justify  further  asylum 
detention. From the moment a TCN was recognized as a refugee, s/he could 
no longer be detained, even where there was a pending annulment application 
before  the  courts.112  The  CoS  highlighted  that  asylum  detention  could  be 
imposed  only  on  TCNs  who  had  not  yet  been  granted  international 
protection and, even then, only under specific circumstances. In respect of 
recognized  refugees,  where  an  annulment  application  was  pending, 
authorities seeking to protect the general interests at stake were limited to 
less coercive restrictions. To this effect, the CoS lifted the officer's detention 
and  ordered  a  list  of  non-coercive,  albeit  stringent,  measures  to  be  applied 

109 

110 

111 

112 

CoS (Suspension Committee), Decision 97/2018. 
Administrative Court of Athens, Decision 71/2018. 
CoS, Decision 97/2018, paras 17, 20, pending an annulment application and in the 
presence of compelling general interests. 
Ibid para 21. 

 
 
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instead – possibly to mitigate the impact of the ruling and appease any public 
concerns.113  

Although immigration detention was not the primary subject matter of the 
proceedings, the CoS' decision significantly contributed to the development 
of domestic standards in this area. It set an important judicial precedent in so 
far as it circumscribed the temporal scope of asylum detention. Even more 
it  declared  unlawful  the  detention  of  beneficiaries  of 
importantly, 
international protection, even in cases where an asylum decision was being 
challenged through an annulment application. The opposite interpretation – 
the  one  suggested  by  the  first  instance  administrative  court  –  would  have 
raised issues with the fundamentally declaratory nature of refugee status in 
international refugee law.114 Any remaining legal ambiguities have since been 
dispelled through the latest legislative reform. Greek law now expressly states 
that the final decision on the asylum application is the one issued at second 
instance. 

The  above  CoS  ruling  is  also  important  for  highlighting  the  use  of  less 
coercive  measures  to  implement  migration  management  policies.  In  the 
cautious wording of the CoS, asylum detention should only be implemented 
under particular circumstances. Most importantly, the CoS found that less 
coercive  measures  were  sufficient  to  protect  the  general  interests  at  stake, 
differentiating  itself  from  the  Athens  administrative  court  that  had  earlier 
approved  the  applicant's  detention  as  essential  for  this  purpose.  What  is 
particularly  noteworthy  in  this  case  is  the  gravity  of  the  interests  at  stake: 
national security and public order (given the applicant's military profile and 
the impact on Greece's external relations with Turkey), as well as concerns 
for the applicant's own safety. If less coercive measures ought to be used in 
such a politically loaded case, they should also be appropriate and effective in 
addressing the far less severe risks commonly encountered within the Greek 
jurisprudence. 

113 

114 

Ibid. The applicant was not issued a refugee card and he had to reside in a specific 
undisclosed address and report daily to the local police station. The authorities 
were authorized to impose additional measures if these were necessary and not 
equivalent to detention. 
Joined  Cases  C-391/16,  C-77/17  and  C-78/17  M  v  Ministerstvo  vnitra  and 
Commissaire général aux réfugiés et aux apatrides EU:C:2019:403. 

 
 
 
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A Shortfall of Rights and Justice 

127 

2. Restrictions Falling Short of Detention 

In  other  rulings,  the  CoS  has  also  addressed  restrictions  of  liberty  falling 
short  of  detention,  highlighting  the  judicial  scrutiny  required  even  against 
milder physical restrictions. One such strand of cases concerned police notes 
requiring  individual  asylum-seekers  to  reside  in  a  specific  open  reception 
facility pending the examination of their asylum application. In the event of 
non-compliance, the examination of the relevant asylum application would 
be discontinued. Before the CoS, the authorities retrospectively justified the 
measure either as necessary to ensure the petitioning TCNs' welfare, or on 
grounds that the asylum applications in these cases were 'abusive'. 115 Neither 
argument proved convincing. According to the CoS, to be lawful, limitations 
regarding  the  place  of  residence  had  to  be  individually  justified  in  a  timely 
manner and strictly comply with domestic law. By contrast, in the cases under 
consideration, the authorities had not invoked any compelling public interest 
or other basis expressly foreseen in domestic law, such as the need to process 
quickly  and  effectively  an  asylum  claim,  to  justify  why  any  particular  TCN 
had to reside at a specific address. In its reasoning, the CoS did not discuss 
the  distinction  between  detention  and  other  restrictions  of  liberty.  The 
judgment, however, is significant in acknowledging that even relatively mild 
restrictions of liberty, such as the duty to reside in an open-door facility, must 
be  properly  justified  and  consistent  with  the  principles  of  necessity  and 
proportionality.  

Probably  the  most  highly  publicized  intervention  of  the  CoS  regarding 
restrictions  of  movement  was  its  ruling  on  the  legality  of  the  geographical 
limitations  imposed  on  TCNs  in  the  aftermath  of  the  EU-Turkey  deal.  In 
2017,  the  Greek  Asylum  Service  decided  that  all  asylum-seekers  who  had 
entered  Greece  after  20  March  2016  via  the  Eastern  Aegean  islands  were 
obliged to remain within the geographical boundaries of those islands.116 The 
decision itself did not provide any justification other than generally referring 
to  the  legal  provision  empowering  the  Asylum  Service  to  impose  such 
restrictions.117  

115 

CoS, Decision 629/2007; CoS, Decision 685/2007; CoS, Decision 1201/2011. 

116  Greek Asylum Service Decision 10464/31-5-2017. 
117 
CoS, Decision 805/2018; CoS, Decision 806/2018. 

 
 
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The  CoS  annulled  the  order.  In  its  reasoning,  the  CoS  accepted  that 
restricting the movement of asylum-seekers was in principle allowed under 
both Greek and EU law, as well as the 1951 Refugee Convention. Yet, such 
restrictions had to serve purposes of public interest and satisfy the principle 
of proportionality. In this case, the CoS deemed that these requirements had 
not  been  met.  Although  the  limitations  only  applied  to  asylum-seekers 
entering after 20 March 2016, the CoS concluded that it was not clear that 
they  stemmed  from  the  EU-Turkey  deal,  which  was  nowhere  cited  in  the 
order.  The  administration  had  also  not  made  it  clear  whether  they  had 
ordered those measures on their own initiative or had been obliged to do so 
under the deal. A subsequent document prepared by the Ministry to justify 
the measures failed to remedy the relevant omissions. Consequently, in the 
absence of an adequate legal justification, the CoS annulled the order. Two 
judges  dissented,  arguing  that  the  ministerial  document  sufficiently 
explained the necessity of the geographical restrictions for the purposes of 
migration management and the implementation of the EU-Turkey deal.  

The  above  CoS  decision  is  significant  not  only  because  it  highlighted  the 
procedural safeguards that need to accompany even restrictions of physical 
liberty milder than detention, but also because it emphasized the importance 
of  institutional  design.  The  judgment  stirred  strong  political  reactions  and 
became widely known in the Greek context for the direct challenge it posed 
to the implementation of the EU-Turkey deal. However, the CoS' willingness 
to  apply  a  high  level  of  scrutiny  proved  half-hearted.  It  sought  to 
counterbalance  the  legal  and  political  repercussions  by  ordering  that  the 
results of the annulment take effect only from the date of publication of the 
judgment and have no retrospective effect. Furthermore, in the end the CoS 
decision proved toothless, as it had no effect on the government's policy. A 
new  decision  was  immediately  issued  by  the  Asylum  Service  ordering  the 
same  measure,  this  time  by  expressly  citing  the  EU-Turkey  deal  as 
justification. Subsequent administrative decisions upheld the imposition of 
the  geographical  limitations,118  though  as  of  this  writing  an  annulment 
application against these decisions is still pending before the CoS. 

118 

Greek Asylum Service Decision 8269/20.4.2018 (issued immediately after the CoS 
Decision); Greek Asylum Service Decision 18984/2.10.2018; Ministerial Decision 

 
 
 
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A Shortfall of Rights and Justice 

129 

Notwithstanding  their  narrow  scope  and,  at  times,  limited  impact  on  the 
ground,  the  interventions  of  the  CoS  seen  in  their  entirety  are  important. 
They advance a basic unifying normative approach on the fundamental value 
of  the  right  to  liberty,  broadly  understood.  This  approach  requires  any 
deprivation  and  any  restrictions,  no  matter  how  stringent  they  are,  to  be 
subjected to strict scrutiny, regardless of the political repercussions. These 
core principles contrast the ease with which the lower administrative courts 
all  too  often  accept  the  use  of  immigration  detention  or  other  restrictions 
without  a  substantial  examination  of  their  constitutionality.  Nonetheless, 
the CoS decisions only provide fragments of a theory of the right to liberty in 
the asylum- and migration context. A comprehensive theory is still missing, 
and  long-standing  questions  dividing  the  lower  administrative  courts  still 
wait to be resolved.  

VII. CONCLUDING REMARKS 

Immigration detention has grave and long-lasting consequences on a person's 
mental  and  physical  health  and  well-being  and  is  at  odds  with  the 
fundamental liberty of the person. EU law and the ECtHR have established 
norms  and  principles  to  circumscribe  its  use  by  governments  in  particular 
conditions and under specific standards of legality and fairness. In Greece, 
however, the institutional design of domestic judicial review of immigration 
detention, described in the preceding sections, significantly undermines the 
ability of Greek judges to uphold such standards. They have examined and 
decided  claims  regarding  the  lawfulness  of  detention  of  TCNs  in  a  highly 
inconsistent manner with diverging outcomes. The result is a heterogeneous 
case-law that is unpredictable and lacks common normative directions. 

The fundamental shortcoming of the domestic structure of judicial review is 
the  allocation  of  responsibility  to  lower  administrative  courts  without  a 
second instance jurisdiction before which TCNs could appeal their decisions 
on immigration detention. Lower courts generally limit their review to the 
examination  of  the  facts  in  each  case  and  refrain  from  engaging  in 
constitutionality  review,  even  if  they  are  empowered  by  domestic  law  to 

13411/10.6.2019 
(4736/B/20.12.2019). 

(2399/B/19.6.2019);  Ministerial  Decision 

1140/19.6.2019 

 
 
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conduct  such  a  review.  While  the  allocation  of  judicial  control  over 
immigration  detention  to  first  instance  courts  allows  for  the  speedy 
examination  of  individual  complaints,  it  reinforces  legal  ambiguity  and 
inconsistency. In the end, this system effectively insulates the government 
and  the  legislature  from  the  kind  of  judicial  review  that  would  be  in 
accordance with the rights protections embedded in the ECHR and EU law. 
With no right to appeal, the only judicial channel left to TCNs is to resort to 
international  courts,  especially  the  ECtHR,  which  explains  the  very  large 
number  of  related  claims  (and  resulting  judgments)  against  Greece.  This 
system, though, is both unsustainable and counter-productive. 

The CoS' incidental review of the right to liberty in the immigration context 
has somewhat corrected the haphazard nature of domestic jurisprudence, but 
it has far from established a unified legal approach. In a small number of cases, 
the  CoS  has  advanced  a  basic,  albeit  thoroughly  incomplete,  thread  of 
common norms and safeguards regarding the fundamental right of liberty in 
the asylum and migration context. These recognize immigration detention as 
inherently  harmful  to  the  person  and  require  any  State  restrictions  on  the 
right to liberty to be thoroughly justified and proportional. It requires any 
deprivation of liberty and any restrictions, whether stringent or lenient, to be 
subjected to judicial scrutiny, regardless of the political repercussions. While 
the CoS standards are far from challenging systematic immigration detention 
policies and practices, they do define certain limits to executive action and 
provide a degree of protection – albeit incomplete and tentative – to asylum-
seekers. 

Reforming  the  institutional  structure  of  domestic  judicial  review  of 
immigration detention so as to give TCNs the right to  appeal decisions  of 
first instance courts would promote a unifying approach, improve the quality 
of judicial review, and bolster rights protection. Assigning a role to the CoS 
to review appeals, even if selectively, would have a crucial impact in all these 
regards. It would also create the legal pre-conditions for promoting judicial 
dialogue, including through preliminary references to the CJEU, which have 
so far have not been used.119 Above all, extending responsibility to the CoS to 
review immigration detention decisions of lower courts would strengthen its 
position  and  possibly  embolden  its  approach  vis-à-vis  the  executive  when 

119 

Papapanagiotou-Leza and Kofinis (n 18) 298.  

 
 
 
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A Shortfall of Rights and Justice 

131 

deciding  highly  sensitive  and  politically  charged 
immigration.

issues  related  to 

 
QUESTIONING THE FRONTIERS OF RIGHTS: 
THE CASE LAW OF THE ITALIAN CONSTITUTIONAL COURT ON  
NON-EUROPEAN UNION CITIZENS' SOCIAL RIGHTS 

Paola Pannia* 

The issue of foreigners' entitlement to social rights evokes deep constitutional tensions. 
On the one hand, there is the egalitarian spirit of constitutions. On the other hand, 
there are legal systems in which paradigms such as citizenship, legal status or prolonged 
residence still represent the main criteria for accessing rights. How does the Italian 
Constitutional  Court  respond  to  this  tension  in  adjudicating  the  welfare  claims  of 
migrants?  Does  it  broaden  non-nationals'  access  to  social  rights  and,  if  so,  what 
reasoning  does  it  rely  on?  By  analysing  the  constitutional  jurisprudence  on  non-
European Union citizens' social rights, this article aims to show the peculiar role of the 
Italian  Court,  its  involvement  in  the  governance  of  migration,  its  participation  in 
reshaping the boundaries of the Italian community in the face of government decisions 
and the limitations of its intervention in this regard. This article will show how the 
Italian Constitutional Court has attempted to fulfil two intertwining mandates: to 
rule on issues which are key to migrants' rights and to define the relationship between 
the foreigner and the community in a more constitutionally oriented way. 

Keywords: comparative legal studies, constitutional courts, immigration and 
asylum, solidarity, social rights 

TABLE OF CONTENTS 

I. MIGRANTS, SOCIAL RIGHTS AND COURTS: A CONSTITUTIONAL 

CONUNDRUM ................................................................................................... 134 

* 

Post-doctorate  Research  Fellow  in  Comparative  Public  Law,  Law  Faculty, 
University of Florence. The idea of this article was born after the presentation I 
gave  at  the  16th  Annual  IMISCOE  Conference  'Understanding  International 
Migration  in  the  21st  Century:  Conceptual  and  Methodological  Approaches', 
held  on  27  June  2019  at  Malmö  University.  I  am  grateful  to  Prof.  Veronica 
Federico  and  all  the  participants  for  the  fruitful  debate and  to  Prof.  Francesca 
Biondi  dal  Monte,  Dr.  Madalina  Moraru  and  the  two  anonymous  referees  for 
their accurate comments on this article. I am also indebted to the Editor-in-Chief 
and to the Executive Editor for their detailed, careful and thorough revision. 

EJLS Special Issue, May 2022, 133-70 

doi:10.2924/EJLS.2022.005 

 
 
 
 
 
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European Journal of Legal Studies  

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II. SOME PRELIMINARY REMARKS ON THE ITALIAN CONSTITUTIONAL COURT 
AND ITS ROLE IN DETERMINING FOREIGNERS' SOCIAL RIGHTS ............... 140 

III. WHO BELONGS TO THE DISTRIBUTIVE COMMUNITY? THE CASE LAW OF 
THE ITALIAN CONSTITUTIONAL COURT ON FOREIGNERS' ENTITLEMENT 
TO SOCIAL RIGHTS .......................................................................................... 144 

1. Solidarity with Whom? Foreigners Cannot Be Excluded from  

Social Rights on the Sole Grounds of (Non-)Citizenship ...................................... 144 

2. Solidarity to What Extent? Foreigners Cannot be Excluded from  

Social Measures Aimed at Responding to Primary Needs. ................................... 148 

3. A Universal Form of Solidarity: All Foreigners are Entitled to  

Inviolable Rights ..................................................................................................... 152 

IV. TESTING THE LIMITS OF EXCLUSION UNDER THE "TERRITORIAL 

PARADIGM" ....................................................................................................... 156 

1. A Conditioned Form of Solidarity: Residence-Based Access to Social Rights ..... 156 

2. A Forward-Looking Non-Contractual Solidarity: Assessing the Boundaries  

of the Social Community ........................................................................................ 162 

V. CONCLUDING REMARKS ................................................................................. 167 

I. MIGRANTS, SOCIAL RIGHTS AND COURTS: A CONSTITUTIONAL 
CONUNDRUM 

There  is  a  silent,  overlooked,  yet  evident  contradiction  in  European 
democracies between the very essence of constitutionalism (and its profound 
universalistic  and  egalitarian  impetus)  and  the  legislative  frameworks 
regulating the legal status of foreigners, where paradigms such as citizenship, 
legal  status  or  prolonged  residence  still  represent  the  main  criteria  for 
accessing  rights.  The  ample  protection  of  fundamental  rights  preached  by 
constitutions  clashes  with  a  legal  approach  that  transforms  territorial 
frontiers into rights frontiers. The contradiction becomes even more blatant 
when  foreigners'  entitlement  to  social  rights  is  at  stake.  After  the  Second 
World  War,  it  appeared  necessary  to  expand  the  understanding  of 
constitutionalism beyond a mere system of guarantees, towards a system of 
principles aimed at guiding and orienting people and public authorities alike.1 

1 

The spread of judicial review across the world is somehow paradigmatic of this 
shift, as acutely by Mauro Cappelletti: 'When the Nazi Fascist era shook this faith 
in  the  legislature,  people  began  to  consider  the  judiciary  as  a  check  against 

 
 
 
 
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Questioning the Frontiers of Rights 

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Within this system, social rights were meant to promote and realize a new 
social  order  informed  by  the  principles  of  equality  and  social  justice. 
However,  more  and  more  restrictive  social  policies  seem  to  have  betrayed 
their  original  promise  and  mission  (to  reduce  inequalities  and  favour 
integration) and become an extension of migration control and a means of 
social engineering. 

In Europe, welfare systems are often constructed around a central cleavage: 
citizens  and  non-citizens.  Further  fragmentations  resulting  from  the 
proliferation of foreigners' legal statuses have created 'civic stratification': a 
hierarchy  among  migrants.2  Political  decisions  about  how  to  distribute 
available  resources  end  up  reflecting  and  consolidating  choices  and 
perceptions about 'wanted' and 'unwanted' migrants, which are mostly based 
on  their  supposed  ability  to  contribute  to  the  national  welfare  system  (or, 
seen  from  another  perspective,  not  being  a  burden  on  the  state).3  In  this 
regard, the structure and organisation of welfare systems in European Union 
(EU)  countries  may  be  seen  as  a  powerful  tool  of  post-entry,  internal 
'migration control'.4 

Regulating access to social rights also means determining who is part of the 
'distributive community' and who is not.5 This action enmeshes authorities 
in a dense web of interaction with concepts such as "belonging", "solidarity" 
and  "social  inclusion".  Entitlement  to  social  rights  reflects  and  secures 

2 

3 

4 

5 

legislative disregard of principles once considered immutable. They began, in a 
sense, to "positivize" these principles, to put them in written form and to provide 
legal  barriers  against  their  violation'.  Mauro  Cappelletti,  'Judicial  Review  in 
Comparative Perspective' (1970) 5 California Law Review 1017, 1018. 
Lydia  Morris,  'Managing  Contradiction:  Civic  Stratification  and  Migrants' 
Rights' (2003) 37 The International Migration Review 74. 
Andrew  Geddes,  'Migration  and  the  Welfare  State  in  Europe'  (2003)  74  The 
Political Quarterly 150. 
Ilker Ataç and Sinenglinde Rosenberger, 'Social Policies as a Tool of Migration 
Control' (2019) 17 Journal of Immigrant & Refugee Studies 1. 
For  the  concept  of  human  society  as  a  'distributive  community',  see  Michael 
Walzer,  Sphere  of  Justice:  A  Defence  of  Pluralism  and  Equality  (Basic  Books  Inc. 
1983), which is mentioned in Francesca Biondi dal Monte, Dai Diritti Sociali alla 
Cittadinanza.  La  Condizione  Giuridica  dello  Straniero  tra  Ordinamento  Italiano  e 
Prospettive Sovranazionali (Giappichelli 2013) 2. 

 
 
 
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membership  in  the  community.  It  also  proves  a  person's  belonging  to  the 
community and guarantees that person's "social identity" – society being one 
of the main channels and sites of self-expression. In contrast, a trend towards 
'categorisation'  (the  fragmentation  and  parcellation  of  foreigners'  legal 
status)  and  'selectivity'  (where  social  rights  are  restricted  to  'economically 
desirable' foreigners) can be observed across the variety of welfare systems in 
Europe.6 

Despite being threatened by these processes and obscured by further trends 
towards privatisation of public services and increasing social isolation, social 
rights  still  occupy  a  central  role  within  the  framework  of  constitutional 
protection. This may explain why  European societies and legal systems are 
witnessing  a  countermovement  that  aims  to  promote  a  different 
understanding of social rights and the requirements for accessing them, based 
on a more egalitarian and constitutional approach. Among the actors at the 
vanguard of this movement are the courts, especially constitutional courts, 
who are more and more frequently being asked to issue rulings on political 
choices about resource redistribution embedded in national or regional laws.7 
Excluded  from  democratic  processes,  immigrant  newcomers  turn  to  the 
courts  as  the  only  channel  for  their  welfare  claims.  In  responding  to  these 
demands, constitutional courts face not only the pressures of tackling such 
delicate issues as the availability of resources for regulating migratory flows, 
but  also  those  of  challenging  the  priorities  of  political  leaders.  This  means 
they  must  manage  to  'speak  to  the  political  sphere  with  the  language  of 
judges'8 and address established distributive arrangements without invading 
the  purview  of  political  power  by  interfering  with  the  competence  of  the 
executive or the legislative. 

Court  assessments  of  migrants'  welfare  claims  evoke  deep  constitutional 
tensions (including, to mention one, the separation of powers), which will be 

6 

7 

8 

Geddes (n 3) 152ff. 
On  this  subject,  see,  among  others,  Virginie  Guiraudon  'European  Integration 
and  Migration  Policy:  Vertical  Policy-Making  as  Venue  Shopping'  (2000)  38 
Journal of Common Market Studies 251; Christina Boswell 'Theorizing Migration 
Policy: Is there a Third Way?' (2007) 41 International Migration Review 75. 
Enzo Cheli,  Il Giudice delle Leggi (Il Mulino 1999) 31, quoted by Silvana Sciarra, 
'Prove  di  Solidarietà  in  alcune  Sentenze  della  Corte  Costituzionale'  (2019)  2 
Rivista del Diritto della Sicurezza Sociale 265. 

 
 
 
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Questioning the Frontiers of Rights 

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explored here in the specific context of the constitutional jurisprudence of 
Italy. How does the Italian Constitutional Court respond to these tensions 
when adjudicating the welfare claims of migrants? Does it broaden access to 
social rights for non-nationals and, if so, what reasoning does it rely on? What 
are, if any, the limitations of the Court's decision-making? 

By  addressing  these  questions,  this  analysis  aims  to  explore  the  close  ties 
between the legal impact and social saliency of the Court's decisions, that is, 
their effects on the shape of the community and social relations of individuals 
inhabiting  it.  This  dual  focus,  combining  legal  analysis  with  social  science 
discourses,  represents  the  main  contribution  of  this  article  to  the  existing 
literature on courts and access to social rights for non-nationals. Too often, 
legal scholars refrain from engaging with a more interdisciplinary approach 
and  turn  a  blind  eye  to  the  performative  role  that  legal  structures  play  on 
conditioning individuals, their understandings  of social relations, and their 
views  and  behaviours.  Paradigms  surrounding  normative  provisions  and 
judicial discourse end up influencing the 'social meaning of goods', which are 
no  longer  perceived  as  sources  of  rights  and  obligations,  but  rather  as 
'property assets placed at the mercy of free trade'.9 This also applies to the 
realm  of  social  rights  and  their  access  for  non-nationals.  Interestingly, 
though, the social effects of legal structures not only affects foreigners but 
inevitably  have  a  cascade  effect  on  all  the  members  of  the  community.  
Instead, the case law analysis herein is enriched with debates emerging from 
both the legal studies and social sciences literatures. The illustration of the 
main  lines  of  argumentation  of  the  Court's  jurisprudence  is  supplemented 
with an inquiry into the peculiar role of the Italian Court, and its involvement 
in the governance of migration, its participation in reshaping the boundaries 
of the Italian community in the face of government decisions, as well as its 

9 

Giorgio Resta, 'Gratuità e solidarietà: fondamenti emotivi e "irrazionali"' (2014) 
Rivista  critica  del  diritto  privato  25,  61  (my  translations).  Adopting  a  rich 
interdisciplinary,  the  author  highlights  the  mutual  relations  between  law  and 
society: the former is influenced by social values and, at the same time, it can be 
considered  a  'technique  to  structure  the  society'  both  on  a  practical  and 
ideological level. Therefore, the legal system should promote a logic of solidarity, 
which is embedded in the constitutional values. Ibid 59. 

 
 
 
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role  in  promoting  a  paradigm  of  solidarity  rather  than  contractual  logic  in 
social relations and the limitations of its interventions in this regard. 

Two  main  circumstances  make  Italy  an  interesting  case  study.  First,  it  is  a 
country  affected  by  fierce  pressures  to  govern  the  effects  of  both  the 
economic crisis and an increasing presence of foreigners.10 Furthermore, the 
Italian Constitutional Court has intervened on the issue many times, often 
by securing spaces of legal protection in favour of foreigners (at the expense 
of  the  state's  discretionary  power).  As  such,  on  the  slippery  and  contested 
terrain  of  access  to  social  rights,  the  Italian  Constitutional  Court  has 
performed a 'counter-majoritarian' role.11 

Given the unique status bestowed upon EU citizens, this article deals with 
non-EU citizens only.12 Within the wider universe of social rights, it focuses 
on  the  specific  areas  of  education,  housing,  health  care  and  financial 
allowances.  This  is  not  only  because  these  issues  are  addressed  in  the 
Constitutional  Court's  most  significant  rulings  on  social  rights,13  but  also 
because they account for the most common claims raised by foreigners before 

10 

11 

12 

13 

According to the Italian National Institute of Statistics (Istat), the labour market 
in  Italy  is  still  below  the  pre-crisis  level.  Meanwhile,  Istat  has  documented  a 
growing presence of foreigners: 8.7 % in 2019 versus 5.2% in 2008. Istat, Rapporto 
Annuale 2019: La Situazione del Paese (Istat 2019) 26ff. and 116ff.  
This expression is taken from Alexander Bickel, The Least Dangerous Branch: The 
Supreme Court at the Bar of Politics (Yale University Press 1986) 254ff, which makes 
reference  to  a  'counter-majoritarian  difficulty'  with  respect  to  guarantees  that 
judicial decisions provide for minorities' rights, even when this goes against what 
the majority has stipulated through the political process.  
Unlike  other  EU  Member  States,  the  Italian  legal  system  enables  EU  citizens 
with  more  than  three  months  of  residence  in  Italy  to  have  the  same  access  to 
social  rights  as  Italian  citizens  (without  additional  restrictions  based  on  the 
length  of  residence,  family  status  or  economic  condition).  See  Directive 
2004/38/EC of the European Parliament and of the Council of 29 April 2004 on 
the right of citizens of the Union and their family members to move and reside 
freely within the territory of the Member States [2004] OJ L 158/77, art 24(2). 
See  e.g.  Corte  cost  22  marzo  2001,  n  105;  Corte  cost  28  novembre  2005,  n  432; 
Corte cost 30 luglio 2008, n 306; Corte cost 26 maggio 2010, n 187; Corte cost 5 
luglio 2010, n 249; Corte cost 11 marzo 2013, n 40; Corte cost 11 novembre 2015, n 
230. 

 
 
 
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Questioning the Frontiers of Rights 

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the Constitutional Court in the broader area of social rights.14 Thus, the case 
law  on  these  matters  is  ideal  for  exposing  the  duelling  legal,  political  and 
social  tensions  on  display  in  such  a  delicate  domain  as  social  rights.  In 
addition,  recent  developments  make  the  selected  group  of  social  rights 
extremely crucial from another perspective: as will be illustrated later, it is the 
field which has given rise to the most comprehensive dialogue between the 
Italian Constitutional Court and the Court of Justice of the EU (CJEU).15 

This  article  is  structured  as  follows.  After  section  2  provides  some  basic 
context  on  the  role  of  the  Constitutional  Court,  its  composition  and  the 
Italian  system  of  constitutional  adjudication,  section  3  is  devoted  to  the 
review  and  analysis  of  the  case  law  of  the  Italian  Constitutional  Court  on 
foreigners'  social  rights.  While  acknowledging  the  complexity  and 
fragmentation of the constitutional jurisprudence in this specific field, this 
article  identifies  some  main 
lines  of  argumentation.  Specifically,  it 
demonstrates  that,  apart  from  a  few  decisions,  the  Italian  Constitutional 
Court  has  promoted  an  inclusive  approach  in  cases  concerning  foreigners' 
social rights, often relying on the principle of social solidarity enshrined in 
Article  2  of  the  Italian  Constitution,  which  explicitly  speaks  of  a  duty  of 
solidarity.16 

Indeed, dealing with key constitutional concepts, such as "inviolable rights", 
"solidarity" and "residence", the Italian Constitutional Court has attempted 
to  fulfil  two  intertwining  mandates:  to  rule  on  issues  which  are  key  to 
migrants' rights and to define the relationship between the foreigner and the 
community  in  a  constitutionally  oriented  way.  In  doing  so,  the  Court  has 
sometimes ended up providing new, revolutionary paradigms, which further 
develop this relationship in a spirit of solidarity and interdependence. Thus, 

14 

15 

16 

Concerning the saliency of the above-mentioned issues within the constitutional 
jurisprudence on foreigners' social rights, see Claudio Panzera and Alessio Rauti 
(eds), Dizionario dei Diritti degli Stranieri (Editoriale Scientifica, 2020). 
However,  this  article  only  peripherally  addresses  the  specific  and  ample  issue 
concerning  the  multilevel  protection  of  rights  and  the  dialogue  between  the 
Constitutional Court and the CJEU. See n 45. 
This  principle  is  explicitly  mentioned  in  the  following  decisions  of  the  Italian 
Constitutional Court aimed at securing foreigners' access to social rights. Corte 
cost 2005, n 432 (n 13); Corte cost 12 dicembre 2011, n 329; Corte cost 2013, n 40 
(n 13); Corte cost 27 gennaio 2015, n 22; Corte cost 2015, n 230 (n 13). 

 
 
 
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drawing  upon  some  of  the  Court's  decisions,  this  article  concludes  by 
questioning whether the paradigms of citizenship, foreigners' legal status and 
territoriality are adequate foundations on which to build a system of social 
rights. Meanwhile, this article engages in broader reflection on the possibility 
of rebuilding welfare systems (as well as migration governance) around a non-
contractual 
traditional 
understanding  of  the  very  concepts  of  citizenship  and  belonging  to  a 
community. 

solidarity-based 

reframing 

logic, 

and 

the 

II. SOME PRELIMINARY REMARKS ON THE ITALIAN CONSTITUTIONAL 
COURT AND ITS ROLE IN DETERMINING FOREIGNERS' SOCIAL RIGHTS 

Some background information about the Italian Constitution and the Italian 
Constitutional Court is necessary to better understand the role played by this 
institution.  The  Italian  Constitution  establishes  the  Constitutional  Court 
and  sets  forth  its  basic  functions  and  composition  and  the  effects  of  its 
decisions.17  The  Court  is  composed  of  15  judges,  one-third  of  whom  are 
appointed  by  the  Parliament  (in  a  joint  session),  the  President  of  the 
Republic, and the ordinary and administrative supreme Courts, respectively. 
Members are appointed to nine-year non-renewable terms. Candidates are 
chosen among long-established lawyers, full professors of law and judges from 
the higher courts.  

The  Constitutional  Court  has  jurisdiction  over,  among  other  things, 
jurisdictional disputes  over the allocation of  powers between the state and 
the regions.18 Such cases arise when a state (or a region) requests the Court to 
protect  its  sphere  of  competence  as  guaranteed  under  the  Constitution 
against  infringements  committed  by  a  region  (or  by  the  state  or  another 
region).  The  Constitutional  Court  is  also  empowered  to  adjudicate  on  the 

17 

18 

The  Constitution  of  the  Italian  Republic,  arts  134-36  (Constitution).  For  the 
official  English-language  version,  see  'Constitution  of  the  Italian  Republic' 
(Senato 
<https://www.senato.it/documenti/repository 
/istituzione/costituzione_inglese.pdf> accessed 18 February 2022. 
Ibid art 134. 

della  Repubblica) 

 
 
 
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Questioning the Frontiers of Rights 

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constitutionality of laws and acts having force of law.19 Access to the Court in 
such  matters  is  reserved  to  judges,  who  can  raise  a  question  as  to  a  law's 
constitutionality during the course of a trial that requires the application of 
that law. Court decisions declaring a law to be unconstitutional render it null 
and void from the day of publication, with an erga omnes effect. 

The Italian legal context offers a peculiar realm of analysis with regard to the 
constitutionality  of  legal  provisions  on  foreigners'  rights.  Indeed,  although 
the  Constitution  provides  few  rules  directly  addressing  asylum,  migration 
and  the  legal  status  of  foreigners,20  other  pivotal  constitutional  provisions 
operate to raise the national standards of foreigners' rights. These are: Article 
117,  through  which  the  EU  legislation  and  international  treaties  signed  by 
Italy acquire 'constitutional relevance';21 the so-called "personalist" principle 
of Article 2, which guarantees the full and effective respect of human rights 
and proclaims the duty of social solidarity;22 and the equality clause of Article 
3, which forbids unfair discrimination and guarantees substantial equality.23 

19 

20 

21 

22 

23 

Ibid. For a complete overview of the proceedings which may take place before the 
Constitutional  Court,  see  'Decisioni'  (Corte  Costituzionale)  <https://www. 
cortecostituzionale.it/actionPronuncia.do> accessed 27 March 2022. 
But  see  Constitution  (n 17)  art  10,  which  states  that  '(2)  legal  regulation  of  the 
status  of  foreigners  conforms  to  international  rules  and  treaties;  [and]  (3) 
foreigners  who  are,  in  their  own  country,  denied  the  actual  exercise  of  the 
democratic freedoms guaranteed by the Italian constitution, are entitled to the 
right to asylum under those conditions provided by law'; ibid art 117, distributing 
legislative powers in Italy between the state and the regions, which provides that 
legislation on immigration, right of asylum and legal status of non-EU citizens is 
subjected to the exclusive legislative competence of the state. Meanwhile, other 
policy  areas  affecting  the  management  of  migration  and  the  legal  status  of 
foreigners,  such  as  housing,  healthcare,  and  education,  are  assigned  to  the 
concurrent or exclusive regional legislative competence. Ibid art 117(3). 
Ibid  art  117(1),  which  proclaims  that  '[l]egislative  powers  shall  be  vested  in  the 
State  and  the  Regions  in  compliance  with  the  Constitution  and  with  the 
constraints deriving from EU legislation and international obligations'. 
Ibid  art  2,  according  to  which  'the  Republic  recognises  and  guarantees  the 
inviolable human rights, be it as an individual or in social groups expressing their 
personality, and it ensures the performance of the unalterable duty to political, 
economic, and social solidarity'. 
Ibid art 3, which states that '(1) [a]ll citizens have equal social status and are equal 
before  the  law,  without  regard  to  their  sex,  race,  language,  religion,  political 

 
 
 
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Beyond the constitutional framework, Italian legislation on foreigners' social 
rights presents a complex and confusing maze of normative provisions, which 
are the product of repeated and inconsistent interventions. Article 2(5) of the 
Italian Consolidated Law on Immigration (the 'Consolidated Law'), which is 
the framework law in the field, provides foreigners with the same access to 
public  services  as  Italian  citizens  'within  the  limits  and  in  the  manner 
proscribed by law'.24 In the same vein, article 41(1) of the Consolidated Law 
states that foreigners holding an EU long-term residence permit or a regular 
residence permit valid for at least one year should enjoy services and benefits 
of social assistance on an equal footing with Italian citizens.25 However, for 
legal  framework  has 
financial  reasons,  the  egalitarian  spirit  of  the 
subsequently  been  compromised  by  Article  80(19)  of  Law  388/2000,  an 
ambiguous  and  obscure  law  that  severely  restricted  foreigners'  access  to 
social rights, providing that only EU long-term residence permit holders are 
entitled  to  the  so  called  assegno  sociale  and  other  'financial  allowances 
constituting  subjective  rights  under  the  law  on  social  service'.26  As  will  be 
illustrated  below,  the  constitutional  legitimacy  of  this  latter  normative 
provision has been called into question many times before the Constitutional 
Court. 

opinions, and personal or social conditions' and '(2) [i]t is the duty of the Republic 
to  remove  all  economic  and  social  obstacles  that,  by  limiting  the  freedom  and 
equality of citizens, prevent full individual development and the participation of 
all workers in the political, economic, and social organisation of the country'. As 
explored in more detail in the following paragraphs, despite the fact that Article 
3 makes reference only to citizens, the Italian Constitutional Court, adopting a 
constitutionally oriented interpretation, has clarified that the equality principle 
also applies to non-citizens. Corte cost 23 novembre 1967, n 120; Corte cost 19 
giugno 1969, n 104; Corte cost 10 febbraio 1997, n 46. 
DL 25 luglio 1998, n 286, Testo unico delle disposizioni concernenti la disciplina 
dell'immigrazione e norme sulla condizione dello straniero, art 2(5) (Consolidated 
Law on Immigration). 
Ibid  art  41.  This  normative  provision  has  been  recently  modified.  See  n  44  for 
further details. 
L 23 dicembre 2000, n 388, Disposizioni per la formazione del bilancio annuale e 
pluriennale dello Stato (legge finanziaria 2001), art 80(19) (Budgetary Law 2001). 
See also n 43. 

24 

25 

26 

 
 
 
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Questioning the Frontiers of Rights 

143 

Indeed,  against  this  backdrop  of  multiple  fragmentary  (and  frequently 
inconsistent)  normative  stratifications,  the  Court  has  often  found  itself 
invested  with  the  task  of  balancing  fundamental  rights  against  budgetary 
constraints,  concerns  about  peaceful  coexistence,  the  scarcity  of  financial 
resources  and  the  margin  for  political  choices  regarding  the  allocation  of 
these  resources.27  In  some  cases,  the  Italian  Constitutional  Court  has 
intervened  to redefine these competing interests for the parliament or the 
government,  which  has  contributed,  on  a  case-by-case  basis,  to  the 
establishment  of  criteria  for  the  distribution  of  welfare  benefits  and  the 
recognition of social rights. Can the state introduce limitations concerning 
the  content  of  social  rights  and  the  beneficiaries  to  whom  they  can  be 
attributed?  On  which  grounds  can  these 
limitations  be  considered 
constitutionally lawful? By answering these questions, constitutional case law 
has ended up defining the boundaries of a distributive community. 

However, as further illustrated below, these borders are extremely variable 
and  mobile.  Indeed,  the  main  argumentative  tool  used  by  the  Italian 
Constitutional  Court  to  approach  the  legislative  balancing  exercise  is  a 
reasonableness  test.28  Through  this  technique,  the  Court  assesses  whether 
the legislative exclusion of foreigners from social welfare can be justified (1) 
in  the  light  of  the  principle  of  non-discrimination  (i.e.  treating  like  cases 
alike)  and/or  (2)  from  the  standpoint  of  the  coherence  of  the  entire  legal 
order, based on its intrinsic logic, appropriateness and proportionality. The 
reasonableness  test  does  not  provide  a  definitive  formula  for  measuring 

28 

27  Marta  Cartabia,  'Gli  «immigrati»  nella  giurisprudenza  costituzionale:  titolari  di 
diritti e protagonisti della solidarietà', in Claudio Panzera, Alessio Rauti, Carmela 
Salazar and Antonino Spadaro (eds), Quattro lezioni sugli stranieri: atti della Giornata 
di studi (Jovene 2016). 
On the reasonableness test in the case law of the Italian Constitutional Court, its 
function and its link to the principle of equality, see Gino Scaccia, Gli "Strumenti" 
della Ragionevolezza nel Giudizio Costituzionale (Giuffrè 2000); Andrea Morrone, Il 
"Custode"  della  Ragionevolezza  (Giuffrè  2001);  Luigi  D'Andrea,  Ragionevolezza  e 
Legittimazione di Sistema (Giuffrè 2005). With specific reference to foreigners and 
the right to non-discrimination, see Maria Chiara Locchi, 'Facta Sunt Servanda: 
per un Diritto di Realtà in Tema di Uguaglianza degli Stranieri' (2010) 3 Quaderni 
Costituzionali 571. 

 
 
 
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competing  interests  against  each  other  and  determining  which  carries  the 
most weight. 

The flexibility of this hermeneutic technique allows for an adequate response 
to  the  peculiarity  of  each  case.  However,  at  the  same  time,  it  generates  an 
equilibrium  that  relates  only  to  the  normative  and  factual  elements  of  the 
case  in  hand.  Thus,  the  Italian  Constitutional  Court's  jurisprudence  risks 
resembling  a  plethora  of  operations  of  "microsurgery"  that  fail  to  provide 
holistic  and  thorough  protection.  Furthermore,  the  Court's  decisions  in 
jurisdictional disputes over the allocations of powers between the state and 
the  regions  may  result  in  significant  variations  between  regions  in  the 
attribution  of  social  rights  to  foreigners.  Nonetheless,  as  will  be  discussed 
later, these limitations in the Court's reasoning must be understood also as 
part of its constitutional function. The Court performs a politically relevant 
role (securing rights under the aegis of the Constitution against the abuse of 
public authorities) while maintaining his independence and being careful to 
not invade the political sphere. 

III. WHO BELONGS TO THE DISTRIBUTIVE COMMUNITY? THE CASE 
LAW OF THE ITALIAN CONSTITUTIONAL COURT ON FOREIGNERS' 
ENTITLEMENT TO SOCIAL RIGHTS 

This section is devoted to identifying the main lines of argumentation that 
the  Italian  Constitutional  Court  has  relied  upon  in  adjudicating  the  social 
rights of migrants. 

1. Solidarity with Whom? Foreigners Cannot Be Excluded from Social Rights on the 
Sole Grounds of (Non-)Citizenship 

The first main outcome of the constitutional case law is the elimination of 
citizenship as a criterion for identifying the beneficiaries of social rights. As 
the  Court  has  clarified,  the  boundaries  of  solidarity  –  of  the  distributive 
community – do not coincide with the boundaries of citizenship. Despite the 
growing support for the "Italians first" slogan,29 the Constitutional Court has 

29 

It  is  interesting  to  assess  the  link  between  immigration,  the  rise  of  right-wing 
populism and anti-immigrant sentiments. For an analysis of the "Salvini era" and 
his strategies, see Dylan Patrick Mcginnis, 'Anti-Immigrant Populism in Italy: An 

 
 
 
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Questioning the Frontiers of Rights 

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maintained that citizenship cannot be considered by the legislator as a valid 
and reasonable requirement upon which to condition entitlement to social 
rights. 

This  view  is  consistent  with  the  constitutional  text.  Indeed,  there  is  no 
reference to citizenship in the sections of the Italian Constitution devoted to 
'ethical and social relations' and to 'economic relations'.30 The only provision 
of the Constitution that mentions the term 'citizen' is Article 38, concerning 
social assistance and support to be guaranteed to citizens who are unable to 
work and do not have sufficient economic resources. However, here the term 
must be read through a teleological interpretative lens: the intention of the 
Constitutional  Assembly  was  to  ensure  social  security  rights,  traditionally 
associated  with  the  labouring  condition,  to  all  citizens  (and  not  just  to  the 
working class). The possibility of applying Article 38 of the Constitution to 
non-citizens as well, which meant ensuring access to social rights regardless 
of  citizenship  status,  was  first  affirmed  by  the  Constitutional  Court  in 
judgment No. 454/1998. Here, the Court stated that the right to vocational 
training  guaranteed  by  Article  38(3)  of  the  Constitution  also  applies  to 
foreigners.31 Therefore, foreign workers suffering injury or invalidity have the 
right to be enrolled in the public unemployment register.  

However,  it  was  not  until  the  landmark  judgment  No.  53  of  2005  that  the 
Court explicitly eradicated the traditional distinction between citizens and 
non-citizens,  though  it  still  permeates  the  constitutional  case  law  on 
foreigners'  rights  to  liberty.32  In  this  case,  the  Court  was  called  on  to 
determine the constitutional legitimacy of Art. 8 (2) of Law No. 1/2001 of the 
Lombardy Region, which excluded foreigners with a 100% disability rating 

30 

31 

32 

Analysis of Matteo Salvini's Strategy to Push Italy's Immigration Policy to the 
Far Right' [2021] The Yale Review of International Studies <http://yris.yira.org/ 
winter-issue/4659> accessed 27 March 2022. 
Constitution (n 17) ss II-III; see Cecilia Corsi, Lo Stato e lo Straniero (Cedam 2001) 
101ff; Cecilia Corsi, 'Prestazioni Assistenziali e Cittadinanza' [2009] (2) Diritto 
Immigrazione e Cittadinanza 34. 
Constitution  (n 17),  art  38(3),  which  reads:  'Disabled  persons  are  entitled  to 
receive education and vocational training'. 
See, among others, Corte cost 2005, n 432 (n 13). See also, more broadly, Mario 
Savino, Le libertà degli altri. La regolazione amministrativa dei flussi migratori (Giuffrè 
2012). 

 
 
 
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(and their caregivers) from the right to free public transport.33 The Court's 
reasoning  points  to  the  social  aims  and  solidarity  values  underlying  this 
measure.  Indeed,  disabled  people  have  very  limited  access  to  economic 
resources and experience difficulties in participating in the social life of the 
community. A law that distinguishes between disabled citizens and disabled 
foreigners  introduces  arbitrariness  into  the  legal  order,  since  there  is  no 
reasonable correlation between citizenship status, on the one hand, and the 
functions and grounds underlying the social right on the other hand. Without 
a  reasonable  justification  for  the  differential  treatment  of  foreigners,  the 
citizenship requirement violates the principle of equality enshrined in Article 
3 of the Italian Constitution.34  

The Court's clear pronouncement that citizenship is not a lawful criterion for 
selecting who is entitled to social rights raises other question that have yet to 
be  fully  resolved.  Can  we  conclude  that  all  foreigners  are  entitled  to  social 
rights,  regardless  of  the  specific  residence  permit  or  status  they  have  been 
granted? Or are there other, additional requirements that can legitimately be 
imposed by legislation on foreigners as a condition for the enjoyment of social 
rights? 

A partial answer to the first question comes from European legislation, which 
has  enacted  an  "equivalence"  clause  with  reference  to  foreigners  holding 
specific  types  of  residence  permit.  For  instance,  obligations  to  grant 
foreigners the same rights as Italian citizens are laid down by (1) Article 29 of 

33 

34 

LR  15  gennaio  2001,  n  1  (Disciplina  dei  mutamenti  di  destinazione  d'uso  di 
immobili  e  norme  per  la  dotazione  di  aree  per  attrezzature  pubbliche  e  di  uso 
pubblico), art 8(2), as amended by LR 9 dicembre 2003, n 25, Interventi in materia 
di trasporto pubblico locale e di viabilità, art 5(7). 
As  has  been  highlighted  by  scholars,  the  claimant  was  a  refugee.  See  Graziella 
Romeo, 
'Il  cosmopolitismo  pragmatico  della  Corte  Costituzionale  tra 
radicamento  territoriale  e  solidarietà'  (2018)  1  Rivista  AIC  13,  citing  Gianluca 
Bascherini,  Immigrazione  e  diritto  fondamentali.  L'esperienza  italiana  tra  storia 
costituzionale  e  prospettive  europee  (Jovene  2007)  392-93.  Hence,  the  Court  could 
have solved the case just by relying on the provisions of EU law prohibiting any 
discrimination between refugees and nationals in terms of entitlement to social 
rights. For other decisions by the Court replicating this reasoning, see Corte cost 
29 luglio 2008, n 306 (n 13); Corte cost 14 gennaio 2009, n 11. But see, for a partial 
reversal, Corte cost 15 marzo 2019, n 50. 

 
 
 
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Directive  2011/95,  which  applies  to  beneficiaries  of 
international 
protection,35  (2)  Article  11  (1)  and  (4)  of  Directive  2003/109  concerning 
foreigners  with  an  EU  long-term  residence  permit  and  (3)  Article  12  of 
Directive  2011/98  on  third-country  nationals  residing  and  working  in  a 
Member  State.36  These  provisions  notwithstanding,  the  Constitutional 
Court  recently  had  to  intervene  to  strike  down  regional  and  national 

35 

36 

For  CJEU  case  on  this  subject,  see  in  particular  Joined  Cases  C-443/14  and  C-
444/14  Kreis  Warendorf  v  Ibrahim  Alo  and  Amira  Osso  v  Region  Hannover 
EU:C:2016:127; Case C-713/17 Ahmad Shah Ayubi v Bezirkshauptmannschaft Linz-
Land EU:C:2018:929. 
Directive  2011/95/EU  of  the  European  Parliament  and  of  the  Council  of  13 
December 2011 on standards for the qualification of third-country nationals or 
stateless persons as beneficiaries of international protection, for a uniform status 
for refugees or for persons eligible for subsidiary protection, and for the content 
of  the  protection  granted  (recast)  [2011]  OJ  L337,  art  29;  Council  Directive 
2003/109/EC  of  25  November  2003  concerning  the  status  of  third-country 
nationals  who  are  long-term  residents  [2004]  OJ  L16,  arts  11(1)  and  (4)  (Long-
Term  Residents  Directive);  Directive  2011/98/EU  of  the  European  Parliament 
and of the Council of 13 December 2011 on a single application procedure for a 
single permit for third-country nationals to reside and work in the territory of a 
Member State and on a common set of rights for third-country workers legally 
residing in a Member State [2011] OJ L343, art 12 (Single Permit Directive). For a 
complete overview of these obligations, see Associazione per gli Studi Giuridici 
sull'Immigrazione (ASGI), Stranieri e accesso alle prestazioni sociali (Alberto Guariso 
(ed), 2018) <https://www.cgil.lombardia.it/wp-content/uploads/2018/02/Stranieri 
-e-accesso-alle-prestazioni-sociali-gennaio-2018-guariso.pdf>  accessed  4  June 
2021. In particular, the equality provision of the Single Permit Directive is limited 
to measures of social security, whereas measures of social assistance are excluded 
from the scope of the Directive. Regulation (EC) No 883/2004 of the European 
Parliament  and  of  the  Council  of  29  April  2004  on  the  coordination  of  social 
security systems [2004] OJ L166, art 3(5). According to the case law of the CJEU, 
the latter are social measures, which depend 'on an individual assessment of the 
claimant's  personal  needs'.  Social  security  measures,  by  contrast,  are 
characterised by the fact that 'the criteria applied are objective, legally defined 
criteria which, if met, confer entitlement to the benefit, the competent authority 
having  no  power  to  take  account  of  other  personal  circumstances  does  not 
depend from the state discretionary choices, but from the fulfilment of specific, 
predetermined  conditions'.  Case  C-449/16  Kerly  Del  Rosario  Martinez  Silva  v 
Istituto  nazionale  della  previdenza 
sociale  (INPS)  and  Comune  di  Genova 
EU:C:2017:485. 

 
 
 
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provisions  excluding  foreigners  holding  applicable  permits  from  access  to 
important housing support allowances.37 

2. Solidarity to What Extent? Foreigners Cannot be Excluded from Social Measures 
Aimed at Responding to Primary Needs. 

This section will address the second question raised towards the end of the 
last  section,  inquiring  into  legitimate  limits  to  the  scope  of  social  rights 
accorded to foreigners. The Constitutional Court has clearly acknowledged 
that, in principle, the different legal status of foreigners may justify a different 
legal  treatment.38  However,  it  has  also  found  that  this  reasoning  does  not 
apply  when  the  social  measure  in  question  aims  to  protect  fundamental 
rights.  This  means  that,  although  different  treatment  may  be  justified  (in 
view of the principles of reasonableness and proportionality), no limitation of 
fundamental rights may be deemed legitimate. 

To this end, the Constitutional Court,  when called upon to determine the 
constitutional  legitimacy  of  article  80(19)  of  Law  No.  388/2000,  which 
reserved access to social welfare allowances solely to EU long-term residence 
permit holders, found that non-EU citizens were entitled to all such 'essential 
social benefits', including disability benefits for mobility needs, blindness and 
deafness,  regardless  of  the  typology  of  residence  permit  owned  by  the 
foreigner.39 Indeed, such limitations have been declared unreasonable by the 
Constitutional Court several times.40 In this regard, the Court has observed 
that  obtaining  the  status  of  EU  long-term  resident  requires  proving  the 
availability  of  financial  resources  and  the  possession  of  a  regular  permit  to 

37 

38 

39 

40 

Corte cost 24 maggio 2018, n 106; Corte cost 20 luglio 2018, n 166.  For further 
details, see s IV below. 
See Corte cost 1969, n 104 (n 23); Corte cost 24 febbraio 1994, n 62. 
Corte cost 2008, n 306 (n 13) (on the disability allowance); Corte cost 2015, n 22 
(n 16) (concerning the pension for blind people); Corte cost 2015, n 230 (n 13) (on 
the civil disability pension for deaf people). 
In  addition  to  the  above-mentioned  judgments,  see  also  Corte  cost  2009,  n  11 
(n 34)  (on  the  disability  pension);  Corte  cost  2010,  n  187  (n 13)  (on  the  monthly 
disability allowance); Corte cost 2011, n 329 (n 16) (on the allowance for disabled 
minors to facilitate access to school); Corte cost 2013, n 40 (n 13) (with reference 
again to the disability allowance and to the disability pension). 

 
 
 
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stay in Italy for at least five years.41 However, foreigners who apply for these 
social  benefits  are  often  poor  or  experiencing  a  situation  of  economic 
hardship and in need of urgent assistance and care. Specific social benefits, 
constituting 'a remedy for satisfying the primary needs for the protection of 
the  human  person',  must  be  considered  'fundamental  rights  because  they 
represent  a  guarantee  for  the  person's  survival'.42  Therefore,  these  social 
benefits  must  be  guaranteed  to  all  in  order  to  assure  compliance  with  the 
principle  of  equality  and  with  the  constitutional  mandate  to  protect 
fundamental rights such as the right to health and education.43 In such cases, 
the only requirement is a regular and stable presence in the territory of the 
state. 

However,  consistent  with  the  interlocutory  nature  of  the  constitutional 
review  process,  the  Court  never  invalidated  the  entire  law,  but  each  time 
censored only that part of it which excluded foreigners without an EU long-
term permit from enjoying the particular social benefit aimed at guaranteeing 
the  primary  needs  at  stake  in  the  specific  case.  Some  recent  legislative 
amendments  notwithstanding,44  the  national  legal  framework  continues  to 
lack coherent, sound rules, raising concerns about compliance with the non-
discrimination principle enshrined in the Italian Constitution, the Charter 

41 

42 

43 

44 

Consolidated Law on Immigration (n 24) art 9. 
Corte cost 2010, n 187 (n 13). See also Corte cost 2011, n 329 (n 16); Corte cost 2013, 
n 40 (n 13); Corte cost 2015, n 22 (n 16); Corte cost 2015, n 230 (n 13). All quotes 
from cases are my own translations. 
Corte cost 2011, n 329 (n 16). 
The  legal  framework  has  been  recently  modified  by  L  23  dicembre  2021,  n  238, 
Disposizioni  per  l'adempimento  degli  obblighi  derivanti  dall'appartenenza 
dell'Italia  all'Unione  europea  -  Legge  europea  2019-2020,  art  3(1)(a).  The  law 
implicitly abrogates Article 80(19) of the Budgetary Law 2001 (n 26) and modifies 
Article 41 of the Consolidated Law on Immigration (n 24). According to the new 
Article  41,  foreigners  holding  a  residence  permit  of  at  least  one  year  enjoy  the 
same  access  to  social  benefits  as  Italian  citizens.  Different  requirements  are 
introduced concerning those social benefits constituting a right. Foreigners with 
a single permit issued under the Single Permit Directive (n 36) have access to non-
family allowances only if they have worked in Italy for more than six months and 
to family allowances only if they have a residence permit allowing them to work 
for more than six months. Consolidated Law on Immigration (n 24) art 41. 

 
 
 
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of  Fundamental  Rights  of  the  EU  (CFR)  and  European  Court  of  Human 
Rights (ECtHR) case law.45 

45 

See e.g. DL 21 dicembre 2021, n 230 Istituzione dell'assegno unico e universale per 
i figli a carico, in attuazione della delega conferita al Governo ai sensi della legge 
1° aprile 2021, n 46, which discriminates against some foreigners benefitting of a 
national  form  of  protection  (such  as  those  with  residence  permits  under  DL 
286/1998  (n 24)  for  'social  protection'  (e.g.  victims  of  trafficking  (art  18))  or  the 
assistance of minors (art 31)) with regard to access to the new single universal child 
benefit  (assegno  unico  universale).  Furthermore,  on  8  July  2020,  the  Italian 
Constitutional  Court  considered  a  referral  from  the  Court  of  Cassation 
questioning  the  constitutionality  of  the  rule  making  the  eligibility  of  third-
country  nationals  for  the  childbirth  allowance  and  the  maternity  allowance 
conditional upon holding an EU long-term residence permit. The Court decided 
to refer the question to the CJEU for a preliminary ruling concerning the direct 
applicability of Article 12 of the Single Permit Directive. Corte cost 8 luglio 2020, 
n  182  (English  translation  available  at  <https://www.cortecostituzionale.it/ 
documenti/download/doc/recent_judgments/EN_Ordinanza_182_2020_Sciarra.
pdf>)  accessed  18  February  2022.  With  its  judgment  of  2  September  2021,  the 
Court of Justice ruled that third-country nationals who hold a single work permit 
obtained  pursuant  to  the  Italian  legislation  transposing  the  Single  Permit 
Directive  are  entitled  to  a  childbirth  allowance  and  a  maternity  allowance  as 
provided  for  by  the  Italian  legislation.  Case  C-350/20  OD  and  Others  v  Istituto 
nazionale  della  previdenza  sociale  (INPS)  EU:C:2021:659.  With  Decision  No. 
54/2022, the Italian Constitutional Court declared the constitutional illegitimacy 
of  the  normative  provisions  that  excluded  foreigners  allowed  to  work  with  a 
residence  permit  of  more  than  six  months  from  childbirth  allowance  and 
maternity allowance. According to the Court, these provisions violated Articles 3 
and 31 of Constitution and Article 4 of the CFR. Recently, in a judgment rendered 
on 28 October 2021, the CJEU intervened again on an Italian legislative provision 
that  excluded  third  country  nationals  from  eligibility  for  the  so  called  'family 
card', a document which confers entitlement to discounts on supplies of goods 
and services by public and private entities that have entered into an agreement 
with  the  Italian  government.  The  CJEU  ruled  that  this  exclusion  'constitutes 
unequal  treatment  contrary  to  Article  11(1)(f)  of  Directive  2003/109,  Article 
12(1)(g)  of  Directive  2011/98  and  Article  14(1)(g)  of  Directive  2009/50'.  Case  C-
462/20  Associazione  per  gli  Studi  Giuridici  sull'Immigrazione  (ASGI)  and  Others  v 
Presidenza del Consiglio dei Ministri – Dipartimento per le politiche della famiglia and 
Ministero dell'Economia e delle Finanze EU:C:2021:894. In a subsequent judgment 
of 11 March 2022, declaring the inadmissibility of certain questions referred by the 
Court of Cassation, the Italian Constitutional Court stipulated that third country 

 
 
 
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Furthermore,  many  scholars  have  criticised  the  flaws  of  the  pattern  of 
argumentation regarding 'primary needs'. First, it has been argued that the 
Court  has  failed  to  apply  its  approach  in  a  coherent  and  consistent  way.46 
There have been controversial decisions in which the Court did not consider 
certain rights, such as the right to access to the universal basic income (reddito 
di  cittadinanza),  as  serving  primary  needs.47  On  this  basis,  regional  laws 
requiring foreigners to have been legal residents for a certain amount of time 
in order to access such rights were deemed constitutionally legitimate by the 
Court.  Second,  it  has  been  observed  that  social  measures  are  sometimes 

46 

47 

citizens with a single permit or an EU long-term permit should have access to the 
family  unit  allowance  on  an  equal  footing  with  Italian  citizens,  even  if  some 
members  of  the  family  are  residing  temporarily  in  their  country  of  origin.  The 
Court also took the opportunity to reaffirm the primacy of EU law, the binding 
nature  of  the  CJEU's  decisions  and  their  contributions  to  enhancing  the 
protection of rights. Corte Cost 11 marzo 2022, n 67. On the broader subject of 
foreigners' access to social rights, see also Cecilia Corsi, 'L'Accesso degli Stranieri 
ai Diritti Sociali' in  Antonio Bartolini e Alessandra Pioggia (eds), Cittadinanze 
amministrative  (Firenze  University  Press  2016);  Maria  Dolores  Ferrara,  'Status 
degli stranieri e questioni di welfare tra diritti e inclusione sociale' (2017) 2 Rivista 
del  Diritto  della  Sicurezza  Sociale  265;  Sciarra  'Prove  di  Solidarietà  in  alcune 
Sentenze della Corte Costituzionale' (n 8). 
See  e.g.  Paola  Chiarella,  Solidarietà  e  diritto  sociali.  Aspetti  di  filosofia  del  diritto  e 
'La  Trilogia  della  Corte 
prassi  normative  (Cedam  2017);  Cecilia  Corsi, 
Costituzionale:  ancora  sui  Requisiti  di  Lungo-residenza  per  l'Accesso  alle 
Prestazioni Sociali' (2018) 6 Le Regioni 1170. 
See  e.g.  Corte  cost  11  febbraio  2008,  n  32.  See  also  Chiarella  (n 46);  Corsi,  'La 
Trilogia  della  Corte  Costituzionale'  (n 46).  See  further  Corte  cost  25  gennaio 
2022, n 19, in which the Court confirmed the constitutionality of the rule making 
the  eligibility  of  third-country  nationals  for  the  universal  basic  income 
conditional upon holding an EU long-term residence permit. According to the 
controversial  decision  of  the  Court,  the  so  called  reddito  di  cittadinanza  is  a 
measure with composite contents and objectives: it is not only a measure of social 
assistance, aimed at responding to primary needs of individuals, but also an active 
labour  market  measure.  Furthermore,  according  to  the  Court's  reasoning,  this 
measure involves a job placement process, hence a long period of time, which is 
why the requirement of the EU long-term residence permit cannot be considered 
unreasonable. 

 
 
 
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intended to fulfil multiple aims (so-called 'multifunctional measures').48 How 
should  the  legislator  (and  the  interpreter  of  the  law)  approach  these 
measures?  Should  the  aim  to  satisfy  'primary  needs'  prevail,  hence  making 
these measures applicable to everyone? Or should prevalence be given to the 
function  related  to  'non-essential  needs',  such  that  these  measures  can  be 
made subject to given conditions? 

Notwithstanding  these  criticisms,  the  role  of  the  Constitutional  Court  in 
promoting  the 
legal  entitlements  of  foreigners  and  preventing  the 
downgrading of foreigners' rights cannot be underestimated. As illustrated 
by  the  brief  overview  above,  the  Court  is  involved  in  the  difficult  task  of 
balancing among competing interests which drive the political choices tied 
to  the  allocation  of  economic  resources,  on  the  one  hand,  and  the 
preservation  of  the  principle  of  non-discrimination,  on  the  other  hand.  In 
these  cases,  the  solidarity  principle  enters  into  the  equation  and  tips  the 
scales in favour of the non-discrimination principle, guiding the outcome of 
the Constitutional Court's decisions. 

3. A Universal Form of Solidarity: All Foreigners are Entitled to Inviolable Rights 

is  not  even  taken 

The  Court  takes  the  reasoning  explored  above  even  further  when  the 
protection  of  inviolable  rights  is  at  stake.  Hence,  in  these  cases,  the  legal 
into  account.  Even 
status  of  foreign  nationals 
undocumented foreigners are entitled to enjoy social rights when these are 
strictly related to inviolable rights, i.e. rights belonging 'to individuals not as 
members of a political community but as human beings as such'.49 Embracing 
this line of argumentation, the Constitutional Court, as reflected in its well-
established  case  law  analysed  below,  has  upheld  foreigners'  entitlement  to 
social rights which are directly related to the right to health and healthcare 
services. According to the Court, there is an 'inalienable core of the right to 
health'  guaranteed  by  the  Constitution  as  an  'inviolable  part  of  the  human 
dignity', and any failure to prevent a lack of protection amounts to violations 
of this constitutional right.50 

48 

49 

50 

Francesca Biondi dal Monte, 'Radicamento Territoriale e Accesso dei Minori agli 
Asili Nido' (2019) 4 Studium iuris 441 
Corte cost 2010, n 249 (n 13). See also e.g. Corte cost 2001, n 105 (n 13). 
Corte cost 5 luglio 2001, n 252; Corte cost 22 luglio 2010, n 269. 

 
 
 
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This  reasoning  runs  through  several  decisions  in  which  the  Constitutional 
Court has been called upon to verify the competence of regional authorities 
to extend the scope of the legal protections in areas of social assistance and 
public  services  provided  at  the  national  level  to  undocumented  foreigners. 
Law  No.  29/2009  of  the  Region  of  Tuscany  is  emblematic  in  this  regard. 
Under this law, all migrants in Tuscany were entitled to benefit from 'urgent 
and  non-delayable  social  welfare  measures,  which  are  necessary  to  ensure 
respect for fundamental rights'.51 The Italian government claimed that all of 
these  measures  exceeded  regional  legislative  power,  were  in  conflict  with 
national legislation and infringed the state's exclusive competence in matters 
related  to  migration.52  However,  as  already  mentioned,  the  Constitutional 
Court ruled that these regional provisions were legitimate, highlighting that 
migrants are entitled to a core set of inviolable fundamental rights regardless 
of their status.53 

Tuscany  was  not  an  isolated  case.  Similar  provisions  were  approved,  for 
instance,  in  Apulia,  where  Regional  Law  No.  32/2009  established  that 
undocumented  migrants  would  be  granted  access  to  a  number  of  medical 
treatments,  including  mental  health  services,  pharmaceutical  assistance, 
gynaecological  care  and  abortions,54  and  in  Campania,  where  the  right  to 

51 

52 

53 

54 

LR  8  giugno  2009,  n  29,  Norme  per  l'accoglienza,  l'integrazione  partecipe  e  la 
tutela dei cittadini stranieri nella Regione Toscana, art 6(35). 
For relevant constitutional provisions, see n 15 above. 
Corte cost 2010, n 269 (n 50). The recognition of a 'hard core' of fundamental and 
inviolable rights, regardless of citizenship and legal status, led the Constitutional 
Court to rule that expulsion cannot be enforced if an undocumented migrant is 
undergoing  an  essential  therapeutic  treatment.  Corte  cost  2001,  n  252  (n 50). 
Similar  reasoning  underpins  the  affirmation  of  a  foreigner's  rights  to  legal 
defence,  even  in  case  of  undocumented  foreigners.  Indeed,  the  Constitutional 
Court has clarified that the effective exercise of the right of defence 'implies that 
the addressee of a measure restricting the freedom of self-determination must be 
enabled to understand its content and meaning'. Corte cost 8 giugno 2000, n 198. 
As a consequence, 'in the case of non-culpable ignorance of an expulsion order - 
in  particular  due  to  non-compliance  with  the  obligation  to  translate  legal 
documents  -  the  deadline  for  submitting  an  appeal  should  not  be  considered'. 
Ibid. 
LR  4  dicembre  2009,  n  32,  Norme  per  l'accoglienza,  la  convivenza  civile  e 
l'integrazione degli immigrati in Puglia, art 10(5) (Apulia Immigration Law). This 

 
 
 
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social housing was guaranteed to all foreigners regardless of their status.55 In 
both cases, the Court ruled in favour of the regional legislation, ascertaining 
that they did not infringe upon the state's exclusive legislative competence as 
guaranteed by the Constitution. These decisions were also grounded on the 
universal  and  inviolable  nature  of  the  rights  recognised  by  the  regional 
provisions in question.56 

Within  the  realm  of  inviolable  rights,  the  Court  seems  to  conceptualise  a 
universal solidarity where the welfare system applies to all, regardless of status 
and legal conditions. Some outcomes, particularly involving undocumented 
foreigners, have called into question the state's discretionary power to decide 
who is entitled to  enter and  stay in the national territory. Indeed, as some 
authors have highlighted, it appears that the state's exclusive power to plan 
and  control  migration  is  being  hollowed  out  by  progressive  constitutional 
protection of the foreigner as 'human being'.57  

55 

56 

57 

provision extends the scope of the right to healthcare as compared to national 
legislation,  which  guarantees  only  urgent  and  essential  healthcare  services  to 
undocumented foreigners. Consolidated Law on Immigration (n 24) art 35(3). 
LR 8 febbraio 2010, n 6, Norme per l'inclusione sociale, economica e culturale 
delle  persone  straniere  presenti  in  Campania,  art  16  (Campania  Immigration 
Law). This law guaranteed the right to social housing to all foreigners, regardless 
of  their  status.  Ibid  arts  17(2)  and  (5).  In  contrast  with  this  regional  legislative 
provision,  Article  40  of  the  Consolidated  Law  on  Immigration  (n 24)  only 
provides for  accommodation centres and access to social housing to long-term 
resident migrants who are temporarily unable to provide on their own for their 
basic living and subsistence needs. Furthermore, Article 18(1) of the regional law 
provides that all foreigners who are present in the region are entitled to the same 
healthcare services as Italian citizens. 
Corte cost 22 ottobre 2010, n 299, concerning the Apulia Immigration Law (n 54); 
Corte  cost  21  febbraio  2011,  n  61,  concerning  the  Campania  Immigration  Law 
(n 55). 
Donatella  Morana,  La  Salute  come  Diritto  Costituzionale  (Giappichelli  2013)  130. 
These decisions of the Constitutional Court have also received some criticism for 
having failed to respect state competence on immigration issues, as established 
by  Article  117  of  the  Constitution  (n 17).  Scholars  elaborated  a  distinction 
between  'immigration  policies'  and  'immigrant  policies'.  See  Tomas  Hammar, 
Democracy  and  the  Nation  State:  Aliens,  Denizens  and  Citizens  in  a  World  of 
International  Migration  (Avebury  1990);  Tiziana  Caponio,  'Governo  Locale  e 
Immigrazione  in  Italia.  Tra  Welfare  e  Politiche  di  Sviluppo'  (2004)  5  Le 

 
 
 
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This approach of universal solidarity is built upon two main normative bases: 
(1) the principle of non-discrimination, proclaimed by Article 3 of the Italian 
Constitution and Article 14 of the European Convention on Human Rights;58 
and  (2)  the  principle  of  social  solidarity,  whose  constitutional  basis  as  a 
binding duty is to be found in Article 2 of the Italian Constitution. These are 
'super-personal  social  rights',59  which,  according  to  the  reasoning  of  the 

'Dieci  Anni  di 
istituzioni  del  federalismo  789,  805;  Marco  Benvenuti, 
Giurisprudenza Costituzionale in materia di Immigrazione e di Diritto di Asilo e 
Condizione  Giuridica  dei  Cittadini  di  Stati  Non  Appartenenti  all'Unione 
Europea'  (2014)  3  Questione  giustizia  82.  The  former,  which  fall  within  the 
exclusive  jurisdiction  of  the  state,  embrace  all  the  measures  establishing  the 
conditions for the legal entry and stay of foreigners in Italian territory, whereas 
the  latter,  over  which  regions  have  concurrent  or  even  exclusive  legislative 
competence, refer to issues such as social assistance, education, health, housing 
and public interventions to promote migrant integration. For relevant decisions 
of the Constitutional Court, see Corte cost 2011, n 61 (n 56); Corte cost 27 gennaio 
2010,  n  30;  Corte  cost  27  febbraio  2008,  n  50.  However,  the  Court  has  also 
established that public intervention in the field of migration cannot be limited to 
control of the entry and stay of foreigners, but that it also involves other fields, 
such as public assistance, education, healthcare or housing, where 'national and 
regional competences are intertwined, as established by the Constitution'. Corte 
cost 7 luglio 2005, n 300. In other words, asylum and migration are necessarily the 
subject  of  both  central  and  regional  intervention  and  the  picture  is  more 
complicated than the strict distribution of powers provided by Article 117 of the 
Constitution  (n 17).  Furthermore,  while  the  Constitutional  Court  traditionally 
displays centralising tendencies when resolving jurisdictional conflicts between 
the state and regions, when immigration issues are at stake, it leans in favour of 
the competence of regions. Some authors suggest a possible explanation for this 
trend, highlighting the correlation between Constitutional Court decisions and 
particularly  restrictive  policies  on  immigration  adopted  during  the  timeframes 
2005-06 and 2010-11. See e.g. Benvenuti (n 57) 104-05.  
To  this  end,  see  ASGI  (n 36).  For  relevant  ECtHR  case  law  cited  in  the  ASGI 
report, see Gaygusuz v Austria (1996) 23 EHRR 364; Niedzwiecki v Germany (2006) 
42 EHRR; Fawsie v Greece App no 40080/07 (ECtHR, 28 October 2010) (finding 
that the objective of tackling the demographic decline in the national population 
does  not  constitute  a  reasonable  basis  for  restricting  social  support  to  large 
families with Greek citizenship); Dhahbi v Italy App no 17120/09 (ECtHR, 8 April 
2014) (concerning an Italian social allowance for large families). 
Barbara Pezzini alks about 'diritti sociali personalissimi', such as where the hard core 
of the right to health care and the minors' rights are at stake.  Barbara Pezzini, 

58 

59 

 
 
 
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Court, should not be conceptualised as a social right under Article 38 of the 
Constitution, but should rather be included among the provisions in Article 
2 aimed at safeguarding persons' inviolable rights. 

IV. TESTING THE LIMITS OF EXCLUSION UNDER THE "TERRITORIAL 
PARADIGM" 

Through the case law illustrated thus far, the Constitutional Court has traced 
the  ultimate  boundaries  of  social  rights  that  cannot  be  overruled  by  the 
legislator's  discretionary  power.  This  section  will  attempt  to  broaden  the 
picture by further exploring the reasoning of the Italian Constitutional Court 
in respect of foreigners' social rights in cases involving provisions that are not 
meant to address primary needs or secure inviolable rights. 

1. A Conditioned Form of Solidarity: Residence-Based Access to Social Rights 

Except for the cases discussed above where a universal form of solidarity steps 
in  to  address  severe  or  urgent  needs,  the  Constitutional  Court  clearly 
maintains  that  the  legislator  can  legitimately  condition  the  entitlement  of 
social  rights  on  the  fulfilment  of  specific  requirements.  The  legislative 
framework  on  social  protection  measures  offers  a  vast  spectrum  of  such 
requirements, ranging from EU long-term residency status to mere presence 
in the territory.60 In which instances can the legislator lawfully restrict access 
to social rights without being censured by the Constitutional Court? As will 
be illustrated below, the response offered by the constitutional case law is a 
'gradation of legal protection'.61 

'Una questione che  interroga l'uguaglianza: i diritti sociali  del  noncittadino', in 
Associazione italiana dei costituzionalisti, Lo statuto costituzionale del non cittadino. 
Atti del Convegno annuale dell'Associazione italiana dei costituzionalisti, Cagliari, 16-17 
ottobre 2009 (Jovene 2010). 
Cecilia  Corsi, 
'Stranieri,  Diritti  Sociali  e  Principio  di  Eguaglianza  nella 
Giurisprudenza  della  Corte  Costituzionale'  (2014)  Federalismi  Focus  Human 
Rights No 3/2014, 9-10, 28 <https://www.federalismi.it/ApplOpenFilePDF.cfm? 
artid=27711&dpath=document&dfile=22102014151431.pdf>  accessed  18  February 
2022. 
Romeo (n 34) 21.  

60 

61 

 
 
 
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Here, the case law seems to reflect a conditioned form of solidarity and it is 
possible to witness a decisive shift in the arguments. Indeed, since 2013, when 
the  criterion  of  citizenship  was  declared  unconstitutional  on  grounds  of 
unreasonableness,  a  different  approach  has  taken  its  place:  the  so-called 
'territorial  paradigm'.62  According  to  this  paradigm,  legislative  provisions 
differentiating  access  to  social  rights  based  on  the  "duration  of  stay"  have 
been considered constitutionally legitimate on several occasions. In Decision 
No. 222/2013, concerning access to social measures beyond essential services, 
regions were allowed to favour foreigners who were long-term residents with 
prolonged  residence  in  their  territory  in  view  of  their  'contribution  to  the 
moral and material progress of the community'.63 The Court concluded that 
it is not unreasonable to give priority to supporting families who have resided 
in the territory for a long time in order to promote the most 'active' and 'vital 
components  of  the  community'.64  Similarly,  in  Decision  No.  141/2014,  the 
Constitutional Court upheld Regional Law No. 141/2014 of Campania, which 
restricted childbirth allowances to foreigners who had resided in the regional 
territory  for  at  least  two  years.  The  choice  of  making  childbirth  support 
conditional on 'a stable presence in the territory' passed the reasonableness 
test.65 

62 

63 

64 

65 

See  Mario  Savino,  'Lo  Straniero  nella  Giurisprudenza  Costituzionale:  tra 
Cittadinanza e Territorialità' (2017) 1 Quaderni costituzionali 41. This shift was 
also aided by the fact that in 2013 the EU Commission launched an infringement 
procedure (No n 2013/4009) against the Italian government for non-compliance 
with the legal obligations stipulated by the Long-Term Residents Directive (n 36). 
Subsequently,  legislative  provisions  attributing  social  rights  only  to  Italian  and 
EU  citizens  were  changed  accordingly  to  extend  access  to  social  rights  to 
foreigners holding an EU long-term residence permit. 
Corte  cost  16  luglio  2013,  n  222.  The  challenged  law  granted  access  to  social 
measures (provision of rent allowances, financial support to family income and tax 
reduction  through  the  so-called  'Carta  famiglia',  or  family  charter)  only  to 
foreigners who had resided in the regional territory for at least 2 years and in the 
national territory for at least 5 years. LR 30 novembre 2011, n 16, Disposizioni di 
modifica della normativa regionale in materia di accesso alle prestazioni sociali e 
di personale. 
Corte cost 2013, n 222 (n 63). 
Corte cost 28 maggio 2014, n 141. 

 
 
 
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In  line  with  this  trend,  except  where  fundamental  rights  are  at  stake,  the 
Court allows the national and regional legislator to select the beneficiaries of 
social measures based on their social embeddedness. Thus, the enjoyment of 
forms of social solidarity can be lawfully made subject to the demonstration 
of a strong relationship with the community. This criterion does not coincide 
with  a  mere  legal  presence  in  the  territory,  but  rather  requires  a  non-
occasional, non-short term stay in the territory of the region,66 'participation 
in  the  political,  economic  and  social  organisation  of  the  Republic',67  a 
requirement  which,  according  to  the  Court,  is  fulfilled  through  the 
demonstration of long-term residence. 

However,  the  'duration  of  stay'  criterion  has  likewise  encountered  some 
limitations and adjustments. As explained above, differentiation introduced 
by  national  or  regional  laws  can  only  be  considered  constitutionally 
legitimate  as  long  as  the  legislative  provision,  and  the  balance  among  the 
competing  interests  underlying  it,  conform  to  principles  of  reasonableness 
and proportionality.68 This reasoning led the Constitutional Court to declare 
the unconstitutionality of a regional legislative provision and a national law, 
each  of  which  made  access  to  housing  benefits  conditional  on  ten-year 
residency in the national territory.69 The Court ruled that these provisions 

66 

67 

68 

69 

See, among other decisions of the Constitutional Court, Corte cost 2008, n 306 
(n 13); Corte cost 2010, n 187 (n 13). 
Corte cost 2013, n 222 (n 63). 
See,  among  others,  Corte  cost  2005,  n  432  (n 13),  requiring  that,  when  the  law 
introduces a differentiation between citizens and foreigners, there should not be 
an arbitrary or irrational 'normative reason'. 
LR  7  giugno  2017,  n  13,  Modifiche  alla  legge  regionale  29  giugno  2004,  n  10 
(Norme  per  l’assegnazione  e  la  gestione  del  patrimonio  di  edilizia  residenziale 
pubblica e modifiche alla legge regionale 12 marzo 1998, n 9 (Nuovo ordinamento 
degli  enti  operanti  nel  settore  dell'edilizia  pubblica  e  riordino  delle  attività  di 
servizio  all'edilizia  residenziale  ed  ai  lavori  pubblici))  e  alla  legge  regionale  3 
dicembre  2007,  n  38  (Organizzazione  dell'intervento  regionale  nel  settore 
abitativo);  DL  24  giugno  2008,  n  112,  Disposizioni  urgenti  per  lo  sviluppo 
economico,  la  semplificazione,  la  competitività,  la  stabilizzazione  della  finanza 
pubblica e la perequazione Tributaria, art 11(13), converted into L 6 agosto 2008, 
n 133, Conversione in legge, con modificazioni, del decreto-legge 25 giugno 2008, 
n. 112, recante disposizioni urgenti per lo sviluppo economico, la semplificazione, 
la  competitività,  la  stabilizzazione  della  finanza  pubblica  e  la  perequazione 

 
 
 
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violate  European  law,  which  puts  foreigners  holding  an  EU  long-term 
residence  permit  on  an  equal  footing  with  nationals  in  respect  of  the 
enjoyment  of  social  rights,70  and  that  they  were  unreasonable  and 
disproportionate  because  there  is  no  connection  between  a  ten-year 
'duration  of  stay'  and  'access  to  a  measure  aimed  at  satisfying  a  primary 
housing need'.71  

In  other  cases  the  Court  has  denied  the  possibility  that  cost-saving 
considerations  could  override  the  reasonableness  principle.72  However,  in 
Decision No. 50/2019 the Court seemed to maintain the legitimacy of a link 
between the payment of taxes and access to social services, in line with some 
judgments of the ECtHR.73 The case concerns access to a welfare benefit (the 
so-called assegno sociale), which Article 80(19) of Law No. 388/2000 restricts 

70 

71 

72 

73 

tributaria,  under  which  foreigners  who  wished  to  access  the  national  fund  for 
housing  rent  allowances  were  required  to  certify  ten-year  residency  in  the 
national territory or five-year residency in the same regional territory. 
Long-Term Residents Directive (n 36) art 11(f). 
Corte cost 2018, n 106 (n 37); Corte cost 2018, n 166 (n 37). 
See Corte cost 14 gennaio 2013, n 2, in which the Court specifies that seeking a 
balance between the broadest possible extension of social rights and the scarcity 
of  financial  resources  could  not  take  precedence  over  the  reasonableness 
principle. 
Valentina Zonca, Cittadinanza Sociale e Diritto degli Stranieri. Profili Comparatistici 
(Cedam  2016)  120.  On  this  subject,  see  Dhahbi  (n 58)  para  52,  where  the  Court 
maintained that, since the claimant had been paying contributions in the same 
way and on the same basis as EU workers, he consequently did not belong to the 
category  of  individuals  who  had  failed  to  contribute  to  the  funding  of  public 
services  and  about  whom  a  State  could  have  legitimate  reasons  for  restricting 
recourse  to  expensive  public  services.  In  the  same  vein,  see  also  Ponomaryovi  v 
Bulgaria ECHR 2011-III 365, para 54, where the Court observes that 'a State may 
have legitimate reasons for curtailing the use of resource-hungry public services – 
such as welfare programmes, public benefits and health care – by short-term and 
illegal immigrants, who, as a rule, do not contribute to their funding. It may also, 
in certain circumstances, justifiably differentiate between different categories of 
aliens  residing  in  its  territory.  For  instance,  the  preferential  treatment  of 
nationals  of  member  States  of  the  European  Union  –  some  of  whom  were 
exempted from school fees when Bulgaria acceded to the Union […] – may be said 
to be based on an objective and reasonable justification, because the Union forms 
a special legal order, which has, moreover, established its own citizenship'. 

 
 
 
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to foreigners with an EU long-term residence permit. The Court determined 
that  this  legal  requirement  was  legitimate:  given  the  scarcity  of  economic 
resources,  when  inviolable  rights  are  not  at  stake,  the  legislator  may 
legitimately introduce restrictive criteria or even exclude foreigners from the 
enjoyment of social services.  

These measures of social protection become the instruments through which 
the legislator acknowledges and rewards the foreigner's participation in the 
life of the community over a certain period of time.74 Following the Court's 
reasoning,  unlike  mere  legal  residence,  the  possession  of  an  EU  long-term 
residence permit may prove such participation. Indeed, the requirements for 
obtaining  this  specific  status  (holding  of  a  regular  permit  to  stay  for  a 
minimum of five years, possessing sufficient financial resources and passing 
an  Italian  language  test)  are  such  as  to  certify  foreigners'  social  and  legal 
integration  into  the  national  context.  Therefore,  making  access  to  this 
welfare benefit subject to possession of an EU long-term residence permit is 
neither discriminatory nor unreasonable, since this social measure should be 
interpreted as a form of 'solidarity-based compensation' provided to persons 
over 65, after their retirement, 'for the contribution they have offered to the 
moral  and  material  progress  of  the  society.'75  By  rooting  the  territorial 
paradigm  in  the  foreigner's  economic  contribution  to  the  community,  this 
judgment  ties  the  conditional  form  of  solidarity,  tempered  by  the 
reasonableness principle, to a stronger commutative logic. 

The above-described developments within constitutional case law show all 
the contradictions underlying the so-called territorial paradigm. In line with 
a broader trend, citizenship has been progressively substituted by long-term 
residence 
'denizenship')  as  the  main  anchor  for  welfare 
entitlements.76  Nonetheless,  whereas  in  some  cases  (for  instance,  with  EU 
long-term residency status) the links between access to social rights and the 
duration  of  stay  (as  a  demonstration  of  radicamento  (social  embeddedness)) 
have ended up placing foreigners and citizens on equal footing, this criterion 

(so-called 

74 

75 

76 

Corte cost 2019, n 50 (n 34), para 7. 
Ibid. 
For more on the concept of denizenship, see Hammar (n 57). 

 
 
 
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has  more  often  been  invoked  to  further  exclude  foreigners  from  legal 
protection. 

Indeed,  based  on  the  territorial  paradigm,  laws  regulating  access  to  social 
rights  often  require  demonstration  of  radicamento,  of  social  and  economic 
integration,  which  can  be  substantiated  only  by  what  can  be  termed  as  a 
"qualified presence" in the territory. To this end, a foreigner's legal presence 
in the territory, even for a long time, is not enough. Nor is the possession of a 
permit to stay. In order to prove this "qualified presence" in the territory, the 
law  requires  foreigners  to  meet  specific  legal  requirements,  such  as  a 
continuous  residence,  or  in  the  case  of  the  EU  long-term  residence,  the 
continuous possession, over time, of a short-term permit and a given income, 
among  other  things.  However,  the  territorial  paradigm,  together  with 
requirements  of  a  "qualified  presence",  can  hardly  provide  a  reasonable  or 
efficient indicator of whether a foreigner has formed a social bond with the 
host community, which is the rationale to which the Court often refers in its 
decisions. For instance, in a static and rigid immigration system like Italy's, 
where  there  is  no  possibility  of  regularising  the  condition  of  'being 
undocumented', the legal system denies social rights to foreigners who may 
have  arrived  undocumented,  but  have  since  regularly  resided  in  Italy  for  a 
long time,  have kept working and have cultivated meaningful relationships 
with the community.77 In addition to this, practical difficulties of obtaining a 
residence  may  also  exclude  foreigners  with  a  regular  permit  to  stay  from 
access to welfare services.78 

In  this  vein,  some  authors  have  aptly  observed  that  policies  affecting 
residence  can  be  regarded  as  instruments  that  'allow  reallocating  public 
resources  unequally'.79  Requirements  such  as  long-term  residency  in  the 

77 

78 

79 

Locchi (n 28) 585. 
For reporting on these difficulties, see UNHCR, Focus Group on Integration. 
Final  Report  (UNCHR  2017)  24-25.  <https://www.unhcr.org/it/wp-content/ 
uploads/sites/97/2020/07/Focus-group-on-integration.pdf> accessed 19 February 
2022. 
Enrico Gargiulo,  L'inclusione esclusiva. Sociologia  della cittadinanza  sociale (Franco 
Angeli 2008). See also Andrea Guazzarotti, 'Lo Straniero, i Diritti, l'Eguaglianza' 
[2009] (1) Questione Giustizia 87; Enrico Gargiulo, 'Le Politiche di Residenza in 
Italia: Inclusione ed Esclusione nelle Nuove Cittadinanze Locali', in Emanuele 

 
 
 
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regional or national territory or the possession of an EU long-term residence 
permit reflect the same logic: limiting the beneficiaries of the welfare system 
to those who are deemed 'more desirable' because they are less likely to weigh 
on  national  public  resources.80  Therefore,  the  shift  toward  the  territorial 
paradigm,  as  conceptualised  above,  generates  a  multiplicity  of  'small  and 
exclusive' communities defined by a multiplicity of social statuses,81 which is 
also  the  result  of  the  (again  global)  tendency  to  decentralise  the  regulation 
and provision of social services.82 

2. A Forward-Looking Non-Contractual Solidarity: Assessing the Boundaries of the 
Social Community 

Like the citizenship paradigm, the territorial paradigm – as conceptualised 
by the Constitutional Court and the legislature, thus not coinciding with the 
mere  presence  of  a  person  in  a  given  territory83  –  cannot  be  considered  an 
adequate foundation on which to build a system of social rights. Indeed, the 
reciprocal  view  of  solidarity  promoted  by  the  Court  risks  triggering  a 
'resurgence  of  the  rhetoric  of  contract',84  which  is  exacerbated  in  times  of 
economic  crisis,  which  challenge  solidarity.  Besides  its  exclusionary 
consequences,  residence-based  access  to  social  rights  generates  logical  and 
legal short circuit.  

The  territorial  paradigm  creates  a  sort  of  legal  presumption  against  the 
foreigner, who is considered outside the social community. A foreigner can 

80 

81 

82 

83 

84 

Rossi, Francesca Biondi dal Monte and Massimiliano Vrenna (eds), La Governance 
dell'Immigrazione. Diritti, Politiche e Competenze (Il Mulino 2013).  
Biondi dal Monte, Dai Diritti Sociali alla Cittadinanza (n 4). 
Luca  Montanari,  'La  Giurisprudenza  Costituzionale  in  materia  di  Diritti  degli 
Stranieri' [2019] (2) Federalismi <https://www.federalismi.it/ApplOpenFilePDF. 
cfm?artid=38274&dpath=document&dfile=25032019222142.pdf> 
19 
February 2022. 
Geddes (n 3). 
On  this  different  understanding  of  the  territorial  paradigm  (called  'ethical 
territoriality'),  see  Linda  Bosniak,  'Being  Here:  Ethical  Territoriality  and  the 
Rights of Immigrants' (2007) 8 Theoretical Inquiries in Law 389. 
Nancy Fraser and Linda Gordon, 'Civil Citizenship Against Social Citizenship? 
On the Ideology of Contract-Versus-Charity' in Bart van Steenbergen (ed), The 
Condition of Citizenship (Sage 1994) 104. 

accessed 

 
 
 
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Questioning the Frontiers of Rights 

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only  overcome  this  presumption  and  demonstrate  his  or  her  ability  to 
contribute to the material and spiritual progress of the society by fulfilling a 
fixed list of legal requirements such as long-term residence (complemented 
by a regular residence permit), sufficient income, and/or the possession of a 
long-term residence permit. Only then can the foreigner be considered part 
of the social community and given access to social rights. However, a warped 
logic  underlies  this  mechanism:  the  required  elements  are  usually  the  final 
steps in a process of social inclusion, not the preconditions to undertake it.85 

Thus, the contractual and contribution-based notion of solidarity underlying 
the territorial paradigm contradicts the very aim of social rights because it 
risks excluding from the community those potential members most in need 
of  support.  At  the  same  time,  it  seems  perfectly  aligned  with  the  logics 
surrounding  migration  control,  where  rights  attribution  (and  social 
belonging)  depends  on  a  distinction  between  "wanted"  and  "unwanted" 
migrants. Similarly, the reasoning referring to radicamento is biased because it 
ties the attribution of social rights to the permanence of individuals in a given 
territory rather than to their necessities, giving unjustified preference to the 
'sedentary indigent' over the 'mobile one'.86  

There is also a legal contradiction. The Italian Constitution of 1948, with its 
list of fundamental rights, aims to place value on the individual within his or 
her whole network of social relationships. This was a revolutionary shift away 
from  an  old  legal  system  that,  drawing  upon  a  logic  of  individualism, 

85 

86 

Foreigners are required somehow to provide "diabolical proof": they can officially 
access the community (and become entitled to social rights) only if and when they 
demonstrate  that  they  possess  requirements  only  obtainable  when  they  are 
already part of the community. 
ASGI (n 36) 23. The report observes that those more in need of support are more 
prone to move in search for better opportunities. Furthermore, the flexibility of 
the  production  process  should  also  be  taken  into  account.  Indeed,  corporate 
policies that rely on little production planning to easily and quickly respond to the 
evolution  of  market  demands,  along  with  state  policies  that  encourage  these 
trends in order to promote economic growth, exacerbate tendencies for the most 
vulnerable groups of migrants to be highly mobile. This evolving reality creates 
tension  in  the  application  of  rigid  existing  legal  categories  and  shows  the 
difficulties  of  laws  to  capture  and  regulate  dynamic  and  ever-changing 
phenomena. 

 
 
 
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countenanced only the hierarchical relationship between the authorities and 
the individual or private business agreements, neglecting important aspects 
of community life, which is imbued with the logic of 'the gift, the symbolic 
exchange, non-synallagmatic reciprocity'.87 Residence-based access to social 
rights, as conceptualised above, endangers the solidarity enshrined in Article 
2 of the Constitution, which puts forward a different idea of 'membership of 
the community' that transcends requirements of citizenship, legal status or 
prolonged residence.  

On the basis of solidarity – on social ties and connections among persons who 
share the same territory and are bound by the same rights and duties – it is 
possible to advance an alternative approach to delineating the boundaries of 
'social  citizenship'  and  determine  the  attribution  of  social  rights.88  This 
conceptual  shift  is  closely  linked  to  a  different  understanding  of  the  very 
concept of citizenship, which should be regarded not solely as a legal category 
– as a legal construction or legal status – but also as a process and 'a form of 
identification'.89  

Some  seeds  that  can  blossom  into  new  concepts  of  social  belonging  and 
solidarity-based access to social rights can be gathered from the case law of 

87 

88 

89 

Felice  Giuffrè,  'I  Doveri  di  Solidarietà  Sociale'  in  Renato  Balduzzi  and  others 
(eds), I Doveri Costituzionali e la Prospettiva del Giudice delle Leggi. Atti del Convegno 
Annuale del Gruppo di Pisa. Acqui Terme 9-10 giugno 2006 (Giappichelli 2007) 37. 
In  this  respect,  the  concept  of  "border"  shows  its  close  relationship  with  the 
concept of citizenship and social belonging, being positioned 'at the core of the 
polis, not at its extremes'. Furthermore, 'Borders play an essential role within the 
process of citizenship construction (to be understood as a mix of social practices 
and subjective behaviours, not just as a formal concept) which is at the centre of 
the process of construction of the public sphere'. Monica Pasquino, 'Confine' in 
Caterina Botti (ed), Le Etiche della Diversità Culturale (Le lettere 2013) 247. See also 
Enrica  Rigo,  Europa  di  Confine.  Trasformazioni  della  Cittadinanza  nell'Unione 
Allargata (Booklet 2007). 
Biondi  dal  Monte,  Dai  Diritti  Sociali  alla  Cittadinanza  (n 4)  282,  citing  Sandro 
Mezzadra, Diritto di Fuga. Migrazioni, Cittadinanza, Globalizzazione (Ombre Corte 
2006) 78, which in turn cites Chantal Mouffe, 'Democratic Citizenship and the 
Political  Community'  in  Chantal  Mouffe  (ed),  Dimension  of  Racial  Democracy, 
Pluralism,  Citizenship,  Community  (Verso  1992).  For  critiques  of  the  concept  of 
'citizenship'  regarded  solely  as  a  legal  category,  see  Locchi  (n 28)  574;  Clelia 
Bartoli, Razzisti per Legge (Laterza 2012). 

 
 
 
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Questioning the Frontiers of Rights 

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the Constitutional Court. The first reference point is Decision No. 107/2018, 
in which Regional law No. 6/2017 of the Veneto Region was contested by the 
state  before  the  Constitutional  Court.  The  regional  law  provided  for 
preferential  admission  to  nursery  school  for  children  of  parents  who  had 
resided or worked in Veneto for 15 years, even on a non-continuous basis. The 
Court highlighted the multiple functions of nursery schools, which not only 
serve  the  purpose  of  educating  children,  but  also  play  a  social  role  in 
supporting  low-income  parents  and  especially  working  mothers.  Drawing 
upon  these  considerations,  the  Court  determined  that  the  requirement  of 
long-term  residence  was  constitutionally  illegitimate,  as  it  is  inconsistent 
with  the  'social  vocation'  of  nursery  schools,  which  target  all  children, 
regardless of their parents' duration of stay, and all families, regardless of their 
economic situation.90 

The  Veneto  Region's  defence  objected  that  the  provision  gave  priority  to 
those  who  had  contributed  most  to  the  progress  of  the  local  community. 
However, against this argument, the Court replied that it was unreasonable 
to  apply  this  criterion  to  select  the  beneficiaries  of  social  rights  and  social 
protection measures, since it would end up limiting the access of those who 
were most in need of support, thus undermining the principle of substantial 
equality and solidarity. Indeed, making access to social protection measures 
conditional  on  the  duration  of  stay  and  the  economic  contributions  (in 
particular  tax  payments)  made  to  the  community  created  an  unreasonable 
risk of excluding, for instance, those who had already contributed in another 
region  or  could  not  make  a  material  contribution  because  they  were 
unemployed.91  

This line of argumentation, by severing all ties between social benefits and 
past  contribution  to  the  community,  paves  the  way  for  another  possible 
interpretative  approach  –  one  which  places  value  on  the  foreigner's  future 
contribution. To put it another way, the social belonging of foreigners to the 
community – and, therefore, their access to social rights – should be assessed 
not according to requirements that lay emphasis on the past (such as duration 
of residence), but rather according to criteria that can be predictive of a stable 
future  link  with  the  community.  Such  criteria  could  include  employment 

90 

91 

Corte cost 10 aprile 2018, n 107. 
Ibid para 3.3. 

 
 
 
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contracts, the number of children attending school, attendance of a language 
course or a training course, participation in social activities, membership in 
associations, and so on.92 

Similar  suggestions  can  also  be  derived  from  another  recent  judgment  in 
which the  Constitutional Court struck down Regional Law No. 16/2016 of 
Lombardy, which granted foreigners access to public housing only if they had 
been residing or employed in the region for at least 5 years.93 Departing from 
its own earlier decisions,94 the Court reasoned that long-term residence is a 
'condition pertaining to the past', which cannot guarantee the future stability 
of  the  beneficiary.  Rather,  value  should  be  attributed  to  factors  that  are 
indicative of a foreigner's wish to settle in a given community.95 Furthermore, 
there is no reasonable connection between the demonstration of 'local roots' 
and the right to housing, which belongs to the 'essential requirements' whose 
fulfilment  is  necessary  to  ensure  human  dignity  in  both  its  individual  and 
social expressions, as protected by the Constitution.96 

Finally,  another  decision  of  the  Constitutional  Court  points  towards  a 
possible  redefinition  of  the  concepts  of  citizenship  and  belonging.  In 
the 
Decision  No. 
unconstitutionality  of  Article  3  of  Legislative  Decree  No.  77/2002,  which 
establishes Italian citizenship as a requirement for entry into voluntary civil 
service.  The  Court  stresses  that  'the  exclusion  of  foreigners  from  the 

the  Constitutional  Court  declared 

119/2015, 

92 

93 

94 

95 

96 

See Biondi dal Monte, 'Radicamento Territoriale e Accesso dei Minori agli Asili 
Nido' (n 48). See also Corte cost 2013, n 222 (n 63) para 6, which acknowledges the 
right  of  protection  due  to  any  foreigner  who  has  'legitimately  built  a  strong 
relationship with the community where s/he lives and belongs, having established 
a stable working, family and private life there' (author's translation). 
Corte cost 28 gennaio 2020, n 44. 
In particular, Corte cost 2008, n 32 (n 47). 
Corte cost 2020, n 44 (n 93) para 3. Concerning this point, the decision mentions 
some  data  reported  by  ISTAT  (National  Institute  of  Statistics),  according  to 
which one-third of foreign families living in Italy cannot afford to buy a home, 
because they live below the poverty line. This inevitably increases mobility. Ibid 
para 2. 
Ibid para 3. See also ibid para 3.1, where the Constitutional court points out that 
the requirement of prolonged residence can be an element to be assessed when 
creating  a  waiting  list,  but  it  cannot  give  rise  to  a  blanket  denial  of  access  to 
housing. Indeed, this would run contrary to the social function of public housing. 

 
 
 
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Questioning the Frontiers of Rights 

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possibility of entering voluntary civil service, preventing them from engaging 
in projects of social utility and, consequently, from serving the common good, 
unjustifiably limits the full development of the human person and integration 
into the host community'.97 The decision also stresses the close relationship 
between  rights  and  duties,  both  of  which  lend  substance  to  a  'second 
citizenship'  that  extends  beyond  the  boundaries  of  formal  citizenship, 
embracing all those who live in and share a certain territory.98 This second 
citizenship  gives  rise  both  to  rights,  such  as  the  right  to  receive  social 
assistance,99 and to duties, such as the duties of solidarity.100 

V. CONCLUDING REMARKS 

As illustrated above, the Italian Constitutional Court has proven to be crucial 
in  securing  foreigners'  social  rights  against  restrictive  legal  provisions 
approved by the regional or national legislator. Its decisions have mostly been 
driven  by  the  principles  of  non-discrimination  and  solidarity,  which  were 
given  priority  over  other  considerations  such  as  budget  constraints  and 
political choices tied to the allocation of economic resources. However, in 
performing  this  'counter-majoritarian  role',101  the  Court  has  also  exposed 
itself  to  criticism.  Indeed, 
its  reasoning  does  not  always  appear 
straightforward  and  coherent,  especially  when  social  rights  do  not  serve 
"primary  needs"  or  are  not  related  to  "fundamental  inviolable  rights". 
Outside  of  this  realm,  there  is  a  grey  area  where  the  Court  still  deems  the 
territorial paradigm a lawful criterion for selecting the beneficiaries of social 
measures.  Hence,  in  some  cases,  foreigners'  access  to  social  rights  remains 
anchored to requirements such EU long-term residency status. 

Difficulties in determining foreigners' access to social rights in a permanent 
and  clear-cut  way  can  be  attributed  to  the  jurisprudential  case-by-case 
approach, as well as the main argumentative pattern exhibited by the Court 

97 

98 

99 

100 

101 

Corte cost 13 maggio 2015, n 119, para 2.4.1. 
Corte cost 10 maggio 1999, n 172. 
Constitution, art 38 (n 17). 
Ibid art 2; Giuffrè (n 87) 25. The correspondence between rights and duties is also 
enshrined in Article 2 of the Consolidated Law on Immigration (n 24), entitled 
'Rights and Duties of Foreigners'.  
Bickel (n 11). 

 
 
 
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– namely, the reasonableness test, with its intrinsically flexible and dynamic 
character.  Thus,  while  there  is  no  doubt  as  to  the  Court's  crucial  role  in 
securing  foreigners'  access  to  social  rights,  in  all  but  a  few  decisions  it  has 
failed to offer the conceptual and interpretative tools that would enable us to 
identify once and for all who can benefit from which social rights. This makes 
it difficult to extract a coherent, definitive and all-encompassing picture from 
the  jurisprudence,  which  has  sometimes  given  rise  to  fragmented,  sector-
specific protection.  

The  complexity  of  this  framework  has  been  further  exacerbated  by  some 
decisions  of  the  Constitutional  Court  concerning  jurisdictional  disputes 
between  the  state  and  the  regions.  Here,  regional  provisions  aimed  at 
enhancing foreigners' social rights have been questioned by the state on the 
grounds of a lack of regional competence to regulate the matter. As discussed 
above, the Court has often ruled in favour of the regions, considering their 
regulations  on  foreigners'  social  rights  to  be  constitutionally  legitimate. 
However, in doing so, it has produced different standards of protection for 
third-country nationals across the country.102  

These loopholes notwithstanding, the contribution of the Court in defining 
and redefining the community and the role of the foreigner within it should 
not  be  underestimated.  For  one  thing,  when  looking  at  this  fragmented 
picture, it is also important to consider the specific constitutional role of the 
Court  and  its  limited  scope.  Indeed,  as  highlighted  by  one  constitutional 
judge, the role performed by the Court on the question of foreigners' social 

102 

'vertigine  della 

Carmela Salazar, 'Leggi regionali sui 'diritti degli immigrati', Corte costituzionale 
lista':  considerazioni  su  alcune  recenti  questioni  di 
e 
costituzionalità  proposte  dal  Governo  in  via  principale'  in  Silvio  Gambino  and 
Guerino D'Ignazio (eds), Immigrazione e diritti fondamentali (Giuffrè 2010); Nicola 
Delvino  and  Sarah  Spencer,  Irregular  Migrants  in  Italy:  Law  and  Policy  on 
Entitlements  to  Services  (ESRC  Centre  on  Migration,  Policy  and  Society 
(COMPAS)  University  of  Oxford  2014)  <https://www.compas.ox.ac.uk/wp-
content/uploads/PR-2014-Irregular_Migrants_Italy.pdf>  accessed  19  February 
2022. 

 
 
 
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Questioning the Frontiers of Rights 

169 

rights is to 'add pieces to a mosaic which cannot – and maybe must not – be 
completed by the Court on its own'.103  

Furthermore, some of the Courts' decisions seem to offer an alternative logic 
to  the  citizenship  or  territorial  paradigms.  First,  by  embracing  a  forward-
looking perspective, the Court's reasoning rejects the exclusionary approach 
of a welfare system that espouses the logic of migration control. Second, the 
decisions of the Constitutional Court also contribute to the debate on the 
exchange-versus-charity dichotomy that dominates current political choices 
on the access to social rights.104 Indeed, these judgments seem to recognise 
the complexities of human relations, characterised by a dense interweaving 
of  social  ties.  In  this  context,  the  participation  of  foreigners  cannot  be 
measured according to their status or, under a contractual-like logic, to the 
material  contribution  they  make.  In  contrast  to  this  logic,  the  "second 
citizenship" paradigm promoted by the Constitutional Court presupposes a 
coexistence between rights and duties as two sides of the same coin, which 
does not allow for the former to be subordinated to the latter.105 With the 
focus  on  participation,  this  reasoning  acknowledges  the  entire  range  of 
contributions a foreigner may offer to the community, including future and 
non-material contributions.106  

The  urgent  challenge  facing  modern  democracies  is  to  identify  strategies, 
interpretative  tools  and  a  strong  normative  basis  for  linking  social 

103 

104 

105 

106 

Silvana Sciarra, '"Migranti" e "Persone" al centro di alcune Pronunce della Corte 
Costituzionale sull'Accesso alle Prestazioni Sociali' (Consiglio di Stato, Rome, 26 
May 2017) <https://www.cortecostituzionale.it/documenti/interventi_presidente 
/Sciarra%20CdS%2026%20maggio%202017.pdf> accessed 4 June 2021.  Indeed, 
after a long constitutional dispute, which required seven decisions striking down 
the  same  legislative  provision,  the  Court  asked  the  legislator  to  review  the 
legislation  in  an  organic  and  coherent  fashion  in  order  to  prevent  multiple 
declarations  of  unconstitutionality  from  undermining  the  principle  of 
substantive equality. Corte cost 2015, n 230 (n 13). 
Fraser and Gordon (n 84). 
Erik  Longo,  'Le  relazioni  come  fattore  costitutivo  dei  diritti  sociali'  [2014]  (1) 
Diritto e società 71; Maurizio Fioravanti, Art. 2 Costituzione Italiana (Carocci 2017) 
6-7. 
Following  the  reasoning  of  the  Constitutional  Court,  giving  birth  can  be 
considered a contribution to the community. 

 
 
 
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participation and entitlement to civil, social and political  rights based on a 
language of 'solidarity, non-contractual reciprocity and interdependence'.107 
The Italian Constitutional Court seems to offer valuable suggestions on how 
to address this complex puzzle and constitutional conundrum – a conundrum 
which, needless to say, also concerns borders themselves.108

107 

Fraser  and  Gordon  (n 84)  105.  See  also  Seyla  Benhabib,  I  Diritti  degli  Altri. 
Stranieri, Residenti, Cittadini (Raffaello Cortina 2006) 38. 

108  On the strict link between the rights attributed to migrants already in the country 
and those who attempt to enter it, see the brilliant observations of Bosniak (n 83) 
which  show  the  illusion  of  the  distinction  between  'border  and  interior'  that 
dominates the liberal debate on immigration law. 

 
 
 
THE UNDERMINED ROLE OF (DOMESTIC) CASE LAW IN SHAPING THE 
PRACTICE OF ADMITTING ASYLUM SEEKERS IN POLAND 

Monika Szulecka* 

The aim of this paper is to explain the observably weak role of domestic case law in 
shaping access to the asylum procedure at Poland's eastern border. It also addresses the 
lack  of  influence  of  the  European  Court  of  Human  Rights  in  safeguarding  forced 
migrants'  right  to  apply  for  asylum in  Poland. The  assessment  of  how  the  case  law 
impacts the complex reality of asylum seekers trying to enter Polish territory multiple 
times and apply for international protection is based on analyses of both legal sources 
(court  rulings  and  relevant  legislation)  and  sociological  material  (experts'  opinions 
and  statistical  data).  The  conclusions  drawn  from  this  study  indicate  that  the 
administrative body responsible for border checks and receiving asylum applications 
does not comply with domestic and international case law. Moreover, this takes place 
with governmental support and acceptance. Non-compliance stems from anti-refugee 
sentiments  that  spread  through  public  debate  in  a  post-2015  migratory  context  in 
Poland,  portraying  forced  migrants  as  a  threat  to  security  and  social  cohesion. This 
coincided with the progressive crisis of the rule of law in Poland, which has affected 
the way administrative bodies supported by the government respond to and interpret 
administrative judgments. 

Keywords:  Poland,  access  to  the  asylum  procedure,  refusal  of  entry, 
administrative jurisprudence, human rights 

TABLE OF CONTENTS 

I. INTRODUCTION ................................................................................................. 172 

II. POLAND'S APPROACH TOWARDS ADMITTING ASYLUM SEEKERS ............. 179 

* 

Scientific  Assistant,  Institute  of  Law  Studies,  Polish  Academy  of  Sciences; 
Affiliate,  Centre  of  Migration  Research,  University  of  Warsaw,  Poland; 
m.szulecka@inp.pan.pl. I wish to express my gratitude to Paola Pannia, Madalina 
Moraru, and Veronica Federico for their valuable support throughout my work 
on the article. I also thank three anonymous reviewers and the editors of EJLS for 
their insightful feedback.  

EJLS Special Issue, May 2022, 171-209 

doi:10.2924/EJLS.2022.006 

 
 
 
 
 
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III. THE BORDER GUARD'S PRACTICES RESTRICTING ACCESS TO ASYLUM: 

ABUSE OF COMPETENCES? .............................................................................. 186 

IV. INVOLVING THE COURTS AS A STRATEGY TO UNBLOCK ACCESS TO THE 

ASYLUM PROCEDURE ...................................................................................... 189 

V. DOMESTIC COURTS RULING ON ADMINISTRATIVE PRACTICES AT BORDER 
CHECKPOINTS .................................................................................................. 192 

VI. (LACK OF) INFLUENCE OF EUROPEAN COURT OF HUMAN RIGHTS 

JUDGMENTS ...................................................................................................... 199 

VII. CONCLUDING REMARKS ............................................................................. 206 

I. INTRODUCTION

In recent years, public discourse in Poland has contributed to perceptions of 
forced migrants as 'unwanted' and irregular, challenging public order both in 
Poland and in other countries of the European Union (EU). In particular, the 
conservative government that was elected to power in Poland in late 2015 has 
depicted the vast majority of asylum seekers not only as abusers of the asylum 
system, but also as a threat to security. Whereas the former narrative was not 
novel,1 the latter was born from the refugee crisis of 2015-16, which the ruling 
politicians  linked  to  increased  terrorist  threats.  As  well  as  a  menace  to 
security, asylum seekers were seen as a potential burden to social cohesion 
due  to  their  'cultural'  or  –  more  specifically  –  'religious'  distance  from  the 
host society.2 Such perceptions became common in public debate despite the 

1 

Already  in  2015,  abuses  of  the  asylum  procedure  were  indicated  by  the  public 
administration  responsible  for  migration  control  as  one  of  the  main  forms  of 
irregular  migration  in  the  Polish  context.  See  Monika  Szulecka,  'Przejawy 
nielegalnej migracji w Polsce' [2016] Archiwum Kryminologii 191, 228-45. 
2  Witold Klaus, 'Security First: The New Right-Wing Government in Poland and 
its Policy towards Immigrants and Refugees' (2017) 15 Surveillance & Society 523; 
Piotr  Cap,  '"We  Don't  Want  Any  Immigrants  or  Terrorists  Here":  The 
Linguistic  Manufacturing  of  Xenophobia  in  the  Post-2015  Poland'  (2018)  29 
Discourse & Society 380;  Elżbieta M Goździak and Péter Marton, 'Where the 
Wild Things Are: Fear of Islam and the Anti-Refugee Rhetoric in Hungary and 
in Poland' (2018) 7 Central and Eastern European Migration Review 125.  

 
 
 
 
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The Undermined Role of (Domestic) Case Law in Poland 

173 

fact that asylum applicants and recognised refugees constituted a minority of 
immigrants to Poland.3  

Governmental  resistance  towards  admitting  asylum  seekers  to  Poland  has 
been  expressed,  among  other  methods,  by  supporting  administrative 
practices  denying  access  to  the  asylum  procedure  at  border  checkpoints, 
especially  since  mid-2015.4  In  formal  terms,  foreigners  presenting  at  the 
border  were  refused  entry  due  to  the  lack  of  required  documents,  such  as 
visas. However, the fact that such refusals of entry were issued and executed 
immediately  by  the  Border  Guard  towards  persons  declaring  their  will  to 
apply for international protection raised doubts regarding the legality of this 
practice.  This,  in  turn,  led  to  a  number  of  interventions  by  human  rights 
defenders,  including  soft  measures  such  as  campaigns  to  raise  awareness, 
monitoring  visits,  and  formal  letters  from  the  Commissioner  for  Human 
Rights to the relevant ministry. These initiatives, however, did not result in 
any changes. 

In this circumstance, human rights campaigners turned to 'hard' measures, 
i.e. bringing cases before the courts on behalf of individuals denied access to 
the  asylum  procedure.  They  expected  that  court  verdicts  would  provide  a 
conclusive interpretation of the law and international commitments. This, in 
turn, would offer forced migrants effective access to the asylum procedure at 
the border, regardless of whether or not they held documents allowing them 
to  cross  the  border.  This  would  also  guarantee  respect  for  the  non-
refoulement principle. When assessing administrative conduct at the border 
checkpoints,  the  domestic  courts  indicated  a  need  to  change  the  way  the 
Border Guard dealt with potential asylum applicants. However, the practice 

3 

See s I for more statistical context. For more on common beliefs, see Bartłomiej 
Walczak and Nikolaos Lampas, 'Beliefs on Refugees as a Terrorist Threat. The 
Social  Determinants  of  Refugee-Related  Stereotypes'  (2020)  46(2)  Studia 
Migracyjne - Przegląd Polonijny 53.  

4  Witold  Klaus, 'Closing Gates to Refugees: The Causes and Effects of the 2015 
"Migration  Crisis"  on  Border  Management  in  Hungary  and  Poland'  (2017)  15 
Rocznik Instytutu Europy Środkowo-Wschodniej 11; Marta Szczepanik, 'Border 
Politics  and  Practices  of  Resistance  on  the  Eastern  Side  of  "Fortress  Europe": 
The Case of Chechen Asylum Seekers at the Belarusian–Polish Border' (2018) 7 
Central and Eastern European Migration Review 69. 

 
 
 
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of repeated refusal to formally receive asylum application and admit asylum 
seekers into Poland continued.  

The issue was also brought before judges in international courts, who issued 
rulings regarding rights of forced migrants who had been denied entry to EU 
territories  to  apply  for  asylum  (often  with  multiple  attempts).5  However, 
these  rulings  did  not  seem  to  influence  the  administrative  conduct  at  the 
border checkpoints that had been contested since at least 2016.6 They also 
appeared  meaningless  to  the  Border  Guard  and  the  Polish  authorities 
supervising, who from August 2021 onwards started reporting an increased 
number  of  migrants  (including  asylum  seekers)  from  the  Middle  East 
attempting to cross unlawfully the border between Belarus and Poland.7 

The  above-mentioned  facts  raise  the  question  of  why  case  law  has  had  a 
limited impact on governance of forced migration in the context of border 
control in Poland. Bringing this question to the forefront of the analysis, the 
objective of this article is to explain the allegedly weak role of the domestic 

5 

6 

In particular, MA and Others v Lithuania App no 59793/17 (ECtHR, 11 December 
2018), MK and Others v Poland App nos 40503/17, 42902/17, 43643/17 (ECtHR, 23 
July 2020). 
Jacek Białas, Marta Górczyńska and Daniel Witko, Access to Asylum Procedure at 
Poland's External Borders. Current Situation and Challenges for the Future (Helsinki 
Foundation for Human Rights 2019) <https://www.hfhr.pl/wp-content/uploads/ 
2019/06/0207_report-HFHR-en.pdf>  accessed  6  July  2020;  Commissioner  for 
Human Rights, 'Input of the Commissioner for Human Rights of the Republic 
of Poland for the Special Rapporteur's on the Human Rights of Migrants Report 
on  Pushback  Practices  and  Their  Impact  on  the  Human  Rights  of  Migrants' 
(2021)  <https://bip.brpo.gov.pl/sites/default/files/Input_of_the_CHR_for_the_ 
Special_Rapporteur_28.01.2021.pdf> accessed 6 July 2021. 

7  Witold  Klaus  (ed),  Humanitarian  Crisis  at  the  Polish-Belarusian  Border.  Report  by 
Grupa  Granica  (Grupa  Granica  2021)  <https://grupagranica.pl/files/Grupa-
Granica-Report-Humanitarian-crisis-at-the-Polish-Belarusian-border.pdf> 
accessed  8  February  2022.  The  analysis  on  which  this  article  is  based  was 
completed in November 2021, before the Russian invasion of Ukraine in February 
2022 that immediately resulted in the arrival of hundreds of thousands of asylum 
seekers  from  Ukraine,  whose  entrance  to  Poland  through  the  existing  border 
crossing  points  was  facilitated  by  Polish  authorities.  Therefore,  the  arguments 
presented in this article do not apply to border control practices at the border 
with Ukraine from 24 February 2022 onwards. 

 
 
 
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The Undermined Role of (Domestic) Case Law in Poland 

175 

courts in shaping the daily administrative practices involving asylum seekers. 
It  also  aims  to  discuss  the  unfulfilled  expectations  of  human  rights 
campaigners  around  legal  intervention  before  international  bodies,  in 
particular  the  European  Court  of  Human  Rights  (ECtHR).  The  most 
probable explanation for the neglect of case law pertains to the crisis of the 
rule  of  law8  combined  with  the  spread  of  anti-immigrant  and  anti-refugee 
sentiments  in  Poland,  which  has  been  encouraged  by  the  government's 
portrayal of asylum seekers first and foremost as a threat to social cohesion 
and  security.  These  processes  began  in  late  2015,  when  a  new  right-wing 
government came to power and enacted policies aimed at reforming various 
public  spheres,  including  migration  and  asylum  policies  and  the  system  of 
justice.  

In a nutshell, the main claim of this article is that, if the authorities see forced 
migrants only as a burden, then we can expect the government to endorse and 
even  encourage  the  questionably  legal  practices  performed  by  front-line 
officers  to  prevent  the  arrival  of  forced  migrants.  Moreover,  even  if  such 
practices are determined to be unlawful by the courts, administrative bodies 
may downplay such verdicts and perceive them as applying to incidents rather 
than  broader  practices.  Such  a  scenario  becomes  more  probable  in  the 
context of persistent threats to the rule of law, which undermine the role of 
courts and the hierarchy of law. 

This article analyses both legal and sociological data to investigate the impact 
of  court  decisions  on  the  state's  practices  in  dealing  with  forced  migrants. 
The legal data referred to in this article consists of selected provisions of the 
two main acts on which migration governance in Poland is based: the Law on 
Foreigners  of  2013  (the  'Law  on  Foreigners')9  and  the  Law  on  Granting 
Protection  to  Foreigners  on  the  Territory  of  Poland  of  2003  (the  'Law  on 

8 

9 

See 'Rule of Law: European Commission Launches Infringement Procedure to 
Protect Judges in Poland from Political Control' (European Commission, 3 April 
2019) 
<https://ec.europa.eu/commission/presscorner/detail/pt/IP_19_1957> 
accessed 12 November 2020. 
Ustawa z dnia 12 grudnia 2013 r o cudzoziemcach (tj DzU z 2021 r poz 2354) [Law 
on Foreigners]. 

 
 
 
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Protection').10 Other legal sources analysed here include two types of court 
verdicts. The first are crucial cases adjudicated by the ECtHR and directly 
related to the situation of asylum seekers 'pushed back' at the eastern border 
of Poland. The second are administrative court verdicts concerning appealed 
decisions  of  refusal  of  entry  issued  to  potential  asylum  applicants.  The 
database of domestic rulings includes 39 cases concluded by the first-instance 
court  and  28  cases  adjudicated  by  the  second-instance  court,  in  each  case 
issued between January 2015 and November 2020.11 

The analysis in this article also relies on conclusions from a sociological study 
of  forced  migration  governance.  These  consist  of  in-depth  interviews 
conducted  between  November  2018  and  February  2019  with  the  following 
migration  experts:  three  employees  of  public  institutions  dealing  with 
migration governance; four representatives of social organisations providing 
legal  advice  to  forced  migrants;  and  18  participants  of  a  group  discussion 
focused on the institutional aspects of border management.12 This article also 
refers  to  official  statistics  produced  by  Polish  administration  and  relevant 

10 

11 

12 

Ustawa  z  dnia  13  czerwca  2003  r  o  udzielaniu  cudzoziemcom  ochrony  na 
terytorium  Rzeczypospolitej  Polskiej  (tj  DzU  z  2021  r  poz  1108)  [Law  on 
Protection]. 
The verdicts come from the official database of administrative courts decisions. 
'Centralna  Baza  Orzeczeń  Sądów  Administracyjnych' 
(Naczelny  Sąd 
Administracyjny) <http://orzeczenia.nsa.gov.pl/cbo/query> accessed 4 December 
2020. I selected them through the search engine available on the website of the 
database, using 'Border Guard' and 'refusal of entry' as search terms. 
The  expert  opinions  referred  to  in  this  article  were  collected  as  part  of  the 
international project 'RESPOND – Multilevel Governance of Migration and Beyond'. 
This project received funding from the European Research Council (ERC) under 
the EU's Horizon 2020 research and innovation programme (grant agreement No 
770564).  For  more  information  about  the  project,  see  'Respond  in  a  Nutshell' 
(Respond  Migration)  <https://www.respondmigration.com/>  accessed  7  July 
2020.  I  participated  in  conducting  these  interviews  as  a  team  member  of  the 
Centre of Migration Research, University of Warsaw – the Polish partner within 
the project. Participants in the group discussion included representatives of the 
Office  of  the  Commissioner  for  Human  Rights,  the  Office  for  Foreigners,  the 
Border  Guard,  governmental  and  local  institutions  involved  in  integration 
programmes,  NGOs  and  international  organisations,  local  authorities,  and 
academia. 

 
 
 
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The Undermined Role of (Domestic) Case Law in Poland 

177 

reports  published  by  non-governmental  organisations  (NGOs)  or  public 
institutions. 

This article uses an interdisciplinary approach to contribute to the existing 
literature  on  forced  migrants'  access  to  asylum  procedures  in  the  EU  and 
offer  an  in-depth  analysis  of  the  tensions  between  Polish  authorities  and 
human rights campaigners over the 'closed doors' approach towards asylum 
seekers at the eastern border, paying special attention to the role of courts in 
this respect.13 Denial of access to the asylum procedure in Poland has already 
been  documented  by  NGOs  involved  in  supporting  migrants.14  It  has  also 
been  referred  to  in  a  number  of  academic  works  within  broader  studies 
devoted  to  asylum  policy  or  the  post-2015  approach  towards  (forced) 
migrants  approaching  Poland.15  Simultaneously,  rulings  on  appeal  from 

13 

14 

15 

in  Terespol,  Medyka,  and  Warszawa-Okęcie  Airport' 

Significant  contributions  to  the  existing  literature  include  Magdalena  Kmak, 
'Between Citizen and Bogus Asylum Seeker: Management of Migration in the EU 
through the Technology of Morality' (2015) 21 Social Identities 395; Goździak and 
Marton (n 2); Sergio Carrera and Marco Stefan, Fundamental Rights Challenges in 
Border  Controls  and  Expulsion  of  Irregular  Immigrants  in  the  European  Union: 
Complaint Mechanisms and Access to Justice (Routledge 2020). 
Aleksandra Chrzanowska and others, 'At the Border. Report on Monitoring of 
Access  to  the  Procedure  for  Granting  International  Protection  at  Border 
Crossings 
(2016) 
Association  for  Legal  Intervention  Analyses,  Reports,  Evaluations  No  2/2016 
<https://interwencjaprawna.pl/wp-content/uploads/2020/04/at-the-border.pdf> 
accessed 11 February 2022; Marta Górczyńska and Marta Szczepanik, 'A Road to 
Nowhere.  The  Account  of  a  Monitoring  Visit  at  the  Brześć-Terespol  Border 
Crossing  between  Poland  and  Belarus'  (Helsińska  Fundacja  Praw  Człowieka 
2016);  Białas,  Górczyńska  and  Witko,  Access  to  Asylum  Procedure  at  Poland's 
External Borders (n 6); 'Overview of the Situation with Transit Refugees in Brest 
(September – December 2018)' (Human Constanta, 26 February 2019) <https:// 
humanconstanta.org/wp-content/uploads/2019/02/Overview-of-the-situation-
with-%E2%80%9Ctransit-refugees%E2%80%9D-sep-dec.pdf>  accessed  6  July 
2020. 
See  e.g.  Klaus,  'Closing  Gates  to  Refugees'  (n 4);  Szczepanik,  'Border  Politics' 
(n 4); Karolina Follis, 'Rejecting Refugees in Illiberal Poland: The Response from 
Civil  Society'  (2019)  15  Journal  of  Civil  Society  307;  Sławomir  Łodziński, 
'Uchodźcy  jako  „podejrzana  społeczność"  (Suspect  Community)'  (2019)  1(10) 
Studia Socjologiczno-Polityczne.  Seria Nowa 31; Marcin Górski, 'Granica praw 
człowieka.  Czy  Polska  dopuszcza  się  strukturalnego  naruszenia  EKPC  w 
sprawach azylowych?' (2021) 47(2) Studia Migracyjne – Przegląd Polonijny 41. 

 
 
 
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refusals of entry have become topics of legal commentaries interpreting the 
courts'  assessment.16  Combining 
sociological 
perspectives, this article analyses the impact of case law on the phenomenon 
of  'pushbacks',  which  have  become  an  integral  feature  of  forced  migration 
governance since late 2015 in Poland.  

legal,  political,  and 

This analysis can be also seen as an introduction to future studies focused on 
the Polish approach towards migrants appearing at the eastern border in the 
summer and autumn of 2021. During that time, 'pushbacks' became common 
practice  with  respect  to  foreigners  crossing  (or  attempting  to  cross)  the 
border  illegally,  regardless  of  their  humanitarian  needs  and  declarations 
about seeking asylum. They also became an element of official policy, based 
on newly enacted provisions,17 amid numerous concerns about their relation 
(or  non-compliance)  with  international  law  and  human  rights  standards.18 
The conclusions presented in this article seem the inevitable starting point 
for analysis of Poland's policy towards forced migrants in 2021 and onwards.  

16 

17 

18 

E.g.  Wojciech  Chróścielewski,  Roman  Hauser  and  Jacek  Chlebny,  'Realizacja 
prawa  do  wszczęcia  postępowania  w 
sprawie  o  udzielenie  ochrony 
międzynarodowej podczas przekraczania granicy' in Jerzy Korczak and Krzysztof 
Sobieralski  (eds),  Jednostka  wobec  władczej  ingerencji  organów  administracji 
publicznej.  Księga  Jubileuszowa  dedykowana  Profesor  Barbarze  Adamiak  (Presscom 
2019);  Paweł  Dąbrowski,  'Niedopuszczalność  odmowy  wjazdu  cudzoziemca  na 
terytorium RP bez wyjaśnienia, czy cudzoziemiec deklaruje wolę ubiegania się o 
ochronę międzynarodową. Glosa do wyroku NSA z dnia 20 września 2018 r., II 
OSK  1025/18'  (2019)  3  Orzecznictwo  Sądów  Polskich  125;  Jacek  Chlebny, 
'Przekroczenie  granicy  przez  cudzoziemca  zamierzającego  złożyć  wniosek  o 
udzielenie ochrony międzynarodowej. Glosa do wyroku ETPC z 23 Lipca 2020 r., 
sprawy  połączone  40503/17,  42902/17  i 43643/17'  (2020)  12  Europejski  Przegląd 
Sądowy  47;  Jacek  Chlebny,  'Rozdział  2.  Postępowanie  w  sprawach  udzielania 
ochrony  międzynarodowej  oraz  pozbawiania  statusu  uchodźcy  lub  ochrony 
uzupełniającej'  in  Jacek  Chlebny  (ed),  Prawo  o  cudzoziemcach.  Komentarz 
(Wydawnictwo CH Beck 2020). 
Ustawa  z  dnia  14  października  2021  r  o  zmianie  ustawy  o  cudzoziemcach  oraz 
niektórych  innych  ustaw  (Dz  U  poz  1918);  Rozporządzenie  Ministra  Spraw 
i  Administracji  z  dnia  20  sierpnia  2021  r  zmieniające 
Wewnętrznych 
rozporządzenie  w  sprawie  czasowego  zawieszenia  lub  ograniczenia  ruchu 
granicznego na określonych przejściach granicznych (Dz U poz 1536). 
See e.g. Grażyna Baranowska, 'The Deadly Woods' (Verfassungsblog, 29 October 
2021) <https://verfassungsblog.de/the-deadly-woods/> accessed 29 October 2021. 

 
 
 
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179 

In order to develop its main claim, this article is structured into five parts. 
The  first  part  reflects  on  Poland's  general  posture  with  respect  to  asylum 
seekers, weighed against other immigration-related phenomena. The second 
part  describes  the  Border  Guard's  practices  of  restricting  access  to  the 
asylum procedure and relates it to the competence of this public institution 
within  the  migration  governance  framework.  The  third  part  analyses  the 
interventions by human rights campaigners that preceded judicial litigation, 
as well as expectations as to the outcome of litigation within the context of 
the  rule  of  law  crisis.  The  fourth  part  devotes  attention  to  domestic  court 
rulings  on  refusals  of  entry  to  asylum  seekers.  This  part  is  followed  by 
reflections  concerning  the  impact  of  ECtHR  decisions  on  administrative 
practices  involving  asylum  seekers  at  the  eastern  border.  The  last  two 
sections  and  the  conclusion  address  the  question  of  whether  and  how  the 
domestic courts and the ECtHR have influenced administrative conduct at 
border checkpoints and, in consequence, access to the asylum procedure. 

II. POLAND'S APPROACH TOWARDS ADMITTING ASYLUM SEEKERS 

In  terms  of  movements  into  and  within  the  EU,  the  territory  of  Poland 
constitutes a source, a destination, and a transit country. Since 2015, however, 
its role as a host for immigrants and asylum seekers has drawn the attention 
of both Polish society and its government. In a relatively short period, Poland 
has  become  a  leader  in  admitting  migrant  workers.19  At  the  same  time, 
though,  it  has  been  branded  as  a  country  that  refuses  to  accept  forced 
migrants. Poland did not directly experience the intensified inflow of asylum 
seekers  during  the  refugee  crisis  of  2015-16  because  the  country  was  not 
situated  along  one  of  the  main  routes  used  by  forced  migrants  from  the 
Middle East and Africa to reach Europe. However, debates on international 
and  state  levels  around  a  possible  response  to  the  migration/refugee  crisis 
contributed to significant changes in Poland's approach towards admitting 
foreign nationals. According to declarations from the then new government 
that  assumed  political  power  at  the  end  of  2015,  the  preferred  source  of 

19 

OECD, International Migration Outlook 2020 (OECD Publishing 2020).  

 
 
 
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immigration to Poland would be 'culturally close' Eastern Europe, as well as 
regions with a Polish diaspora and ethnic Poles.20  

In  opposition  to  the  openness  towards  economic  migrants  from  Eastern 
Europe,  asylum  seekers  –  especially  those  associated  with  Muslim  areas  – 
were treated as a potential burden for the Polish state, among other reasons, 
due to their 'cultural distance'21 from Polish society.22 One of the strategies 
deployed  to  prevent  their  arrival  in  Poland  were  repeated  refusals  of  entry 
issued at the eastern border to persons declaring their intention to apply for 
asylum. The very low rate of positive decisions in asylum procedures implies 
that this is another strategy employed by the authorities.23  

The  rate  of  positive  decisions  in  the  asylum  procedures  (concerning  7,700 
applicants) issued by Polish authorities in 2021 amounted to 46%, which was 
three  times  higher  than  in  previous  years.  Such  a  high  recognition  rate  of 
asylum  applications  was  linked  by  the  authorities  with  a  change  in  the 
demographics of asylum applicants in 2021.24 For the previous two decades, 

20 

21 

22 

See  e.g.  Sławomir  Łodziński  and  Marek  Szonert,  '„Niepolityczna  polityka"? 
Kształtowanie  się  polityki  migracyjnej  w  Polsce  w  latach  1989-2016'  (2017)  43 
Studia Migracyjne - Przegląd Polonijny 39, 6; Kancelaria Prezesa Rady Ministrów, 
'Strategia  na  rzecz  Odpowiedzialnego  Rozwoju'  (2017)  150–151  <https://www. 
mr.gov.pl/media/36848/SOR_2017_maly_internet_03_2017_aa.pdf>  accessed  20 
May  2017;  Ministerstwo  Infrastruktury  i  Rozwoju,  'Nowe  priorytety  rządowej 
polityki  migracyjnej' 
(29  March  2018)  <https://www.miir.gov.pl/strony/ 
aktualnosci/nowe-priorytety-rzadowej-polityki-migracyjnej/> accessed 7 January 
2019; 5; Joanna Książek, 'Wspólnota losu czy wspólnota tożsamości?  Uchodźcy 
kontra repatrianci' (2019) 45 Studia Migracyjne - Przegląd Polonijny 237, 246–47. 
Cultural  distance  refers  mostly  to  the  religious  identity  of  the  newcomers. 
Especially  since  2015,  one  can  notice  the  growth  of  perceived  threat  linked  to 
followers  of  Islam  coming  to  Poland,  with  their  norms  conflicting  with  the 
Christian  ones  dominant  in  Poland.  See  e.g.  Katarzyna  Górak-Sosnowska, 
'Islamophobia without Muslims? The Case of Poland' (2016) 5 Journal of Muslims 
in Europe 190. 
See e.g. Klaus, 'Security First' (n 2). 

23  Witold Klaus, 'Between Closing Borders to Refugees and Welcoming Ukrainian 
Workers:  Polish  Migration  Law  at  the  Crossroads'  in  Elżbieta  M  Goździak, 
Izabela Main and Brigitte Suter (eds), Europe and the Refugee Response: A Crisis of 
Values? (1st edn, Routledge 2020). 
Urząd  do  Spraw  Cudzoziemców,  'Napływ  cudzoziemców  do  Polski  w  latach 
2014-2021 (stan na 1 stycznia 2022 r)' (unpublished report disseminated via e-mail 

24 

 
 
 
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The Undermined Role of (Domestic) Case Law in Poland 

181 

the  majority  of  asylum  seekers  coming  to  Poland  or  trespassing  on  its 
territory  had  originated  from  the  Caucasus  region,  possessed  Russian 
citizenship, and declared Chechen nationality. Between 2007 and 2018, only 
6%  per  cent  of  asylum  (re)applications  resulted  in  either  refugee  status  or 
subsidiary  protection,  while  80%  of  asylum  applicants  had  their  asylum 
procedures  discontinued,  usually  due  to  their  alleged  absence  from  the 
territory of Poland.25 

In  2015,  the  year  that  brought  a  significant  change  in  the  public  discourse 
about asylum and migration, there were 12,325 asylum applicants registered in 
Poland. Despite political concerns about a growing number of asylum seekers 
reaching  Poland  or  an  uncontrolled  influx  of  irregular  migrants  due  to  the 
situation of other EU countries,26 the number of asylum claims submitted in 
Poland did not increase. In 2016 there were 12,319 asylum applicants. While 
the  trend  changed  in  2017,  it  did  so  in  a  direction  that  did  not  reflect  the 
expected 'surge'. Rather, the number of people requesting asylum that year 
(5,078) was less than 50% of the total in each of the two previous years. Over 
the following years, it decreased further – to 4,135 in 2018 and 4,096 in 2019. 
The  number  dropped  significantly  in  2020,  to  2,803  persons,  though  the 
statistics  for  that  year  must  be  considered  with  caution  due  to  the  various 
travel restrictions linked to the pandemic, which also affected the possibility 
of  crossing  the  border.  Indeed,  data  from  2021  makes  2020  look  like  an 
aberration: last year, the number  of asylum applicants registered in Poland 
reached 7,700.27  

For  about  two  decades,  the  main  entry  point  for  asylum  seekers  in  Poland 
(mostly Chechens) was the railway border checkpoint in Brest-Terespol, on 
the border with Belarus.28 Since 2015, the role played by this outpost has been 

25 

26 

27 

28 

(Urząd  do  Spraw  Cudzoziemców)  <https://www.gov.pl/web 

within the Migration Analytical Centre coordinated by the Office for Foreigners, 
4 February 2022). 
'Statystyki' 
/udsc/statystyki> accessed 28 February 2022.  
See  e.g.  Patrycja  Sasnal  (ed),  Niekontrolowane  migracje  do  Unii  Europejskiej  – 
Implikacje dla Polski (Polski Instytut Spraw Międzynarodowych 2015). 
'Statystyki' (n 25).  
This  can  be  seen  in  the  statistics  of  the  Border  Guard  and  the  Office  for 
Foreigners,  as  well  as  in  the  majority  of  reports  focused  on  admitting  asylum 
seekers  to  Poland.  See  e.g.  Norbert  Rafalik,  'Cudzoziemcy  ubiegający  się  o 

 
 
 
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significantly  reduced  due  to  the  administrative  practices  applied  towards 
asylum  seekers  there,  more  recently  coupled  with  border  crossing 
restrictions  imposed  in  response  to  the  Covid-19  pandemic.  Despite  these 
practices and restrictions, Belarusian citizens seeking asylum enjoyed a more 
welcoming  approach  than  citizens  of  other  countries  when  they  came  to 
checkpoints on the border with Belarus.29 

The increased visibility of Ukrainians among asylum applicants since 2014, as 
a consequence of the military conflict with Russia affecting the eastern part 
of  Ukraine,  meant  the  emergence  of  'new'  entry  points  for  asylum  seekers 
into Poland along the border with Ukraine, mainly the border checkpoint in 
Medyka-Shegynie.  The  role  of  international  airports,  especially  the  one  in 
Warsaw, as entry points for asylum applicants became crucial only in summer 
2021 due to evacuation of Afghan nationals from their home country. With 
the  exception  of  Ukrainian  and  Belarussian  citizens,  the  possibility  for 
asylum  seekers  to  apply  for  international  protection  at  land  border 
checkpoints  remains  extremely  limited.  This  is  reflected  by  the  marked 
decrease  in  the  number  of  asylum  applicants  observed  in  Poland  between 
2016 and 2020.  

This decrease does not mean that the situation in the home countries of the 
asylum applicants has improved.30 Instead, it stemmed to a large extent from 
the  practice  of  refusing  entry  to  potential  asylum  applicants  at  the  eastern 
border. In 2015, 53,146 decisions refusing entry were issued, 35.5% of which 
concerned Russian citizens. In 2016, this percentage reached 64% and a total 
of 118,060 migrants were denied entry. That year, the vast majority (74,061 
out of 75,886) of decisions refusing entry issued to citizens of Russia (the most 
common citizenship of asylum applicants in Poland) concerned the border 

nadanie  statusu  uchodźcy  w  Polsce  –  teoria  a  rzeczywistość  (praktyka)  (stan 
prawny  na  dzień  31  grudnia  2011  r)'  (2012)  University  of  Warsaw  Centre  of 
Migration Research Working Paper 55/113, 14, 21 <http://www.migracje.uw.edu.pl 
/wp-content/uploads/2016/10/WP_55_113__2.pdf>  accessed  27 
July  2020; 
Szczepanik, 'Border Politics' (n 4) 77. 

29  Witold  Klaus,  'The  Porous  Border  Woven  with  Prejudices  and  Economic 
Interests. Polish Border Admission Practices in the Time of COVID-19' (2021) 
10 Social Sciences 435. 
See  e.g.  Marta  Szczepanik,  Republika  strachu.  Prawa  człowieka  we  współczesnej 
Czeczenii (Helsińska Fundacja Praw Człowieka 2019). 

30 

 
 
 
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183 

checkpoint  in  Terespol.31  Such  statistics  are  not  surprising  in  light  of  the 
complaints  from  asylum  seekers,  received  and  reported  by  human  rights 
campaigners  in  Poland  and  Belarus,  indicating  multiple  failed  attempts  to 
exercise their right to seek asylum.32  

Indeed, 2016 became a symbolic year for the initiation of a deterrence policy 
towards asylum seekers. Denial of access to the territory was presented by the 
authorities as a necessary step to prevent abuses of the asylum procedure and 
block an emerging route of irregular migration to the EU that could be used 
for  terrorist  purposes.33  The  state's  resistance  towards  asylum  seekers  was 
also  reflected  in  the  Polish  position  on  the  influx  of  asylum  applicants  to 
southern  EU  countries  in  2015  and  the  challenges  of  responding  to  high 
migration pressure there. For reasons of public order and security, the Polish 
government  declined  to  participate  in  the  emergency  relocation  scheme 
established in 2015.34 

Poland  also  failed  to  fulfil  binding  obligations  under  the  EU  Council 
Decisions  establishing  provisional  measures  regarding 
international 
protection for the benefit of Italy and Greece.35 This failure led the European 

31 

32 

33 

34 

35 

'Statystyki  SG' 
(Komenda  Główna  Straży  Granicznej)  <https://www. 
strazgraniczna.pl/pl/granica/statystyki-sg/2206,Statystyki-SG.html>  accessed  15 
September 2020. 
Some  individuals  were  barred  from  entering  Poland  and  submitting  an  asylum 
application  as  many  as  20-40  times.  'Overview  of  the  Situation  with  Transit 
Refugees in Brest (September – December 2018)' (n 14); Białas, Górczyńska and 
Witko, Access to Asylum Procedure at Poland's External Borders (n 6).  
'Czeczeni  koczowali  na  granicy.  Szef  MSWiA:  Rząd  PiS  nie  narazi  Polski  na 
zagrożenie terrorystyczne' (TVN24.pl, 31 August 2016) <https://tvn24.pl/polska/ 
czeczeni-koczowali-na-granicy-szef-mswia-rzad-pis-nie-narazi-polski-na-
zagrozenie-terrorystyczne-ra672450> accessed 23 July 2019. 
'Komunikat  Centrum  Informacyjnego  Rządu  w  związku  z  wyrokiem  TSUE  w 
sprawie relokacji uchodźców' (Kancelaria Prezesa Rady Ministrów, 2 April 2020) 
<https://www.gov.pl/web/premier/komunikat-centrum-informacyjnego-rzadu-
w-zwiazku-z-wyrokiem-tsue-w-sprawie-relokacji-uchodzcow>  accessed  27  June 
2021. 
Council  Decision  (EU)  2015/1523  of  14  September  2015  establishing  provisional 
measures  in  the  area  of  international  protection  for  the  benefit  of  Italy  and  of 
Greece (2015) OJ L 239; Council Decision (EU) 2015/1601 of 22 September 2015 

 
 
 
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Commission to start infringement procedures against Poland. Ultimately, in 
April  2020,  Poland  and  two  other  Central  Eastern  European  (CEE)  states, 
Czechia and Hungary, were found to have infringed EU law due to failure to 
relocate asylum seekers from the southern part of the EU.36 Since the Court 
of Justice of the EU (CJEU) judgment was delivered more than two years after 
the expiry of the Relocation Decisions, the Polish government published a 
statement  pointing  to  the 
judgment's  lack  of  practical  significance. 
Additionally, the government pointed to the role that Poland and the other 
two CEE countries played in changing the EU's approach towards migratory 
pressures  and  asylum  seekers,  i.e.  in  convincing  other  EU  countries  that 
mandatory  relocation  was  not  a  solution.  The  statement  further  identified 
inconsistent treatment of different EU states – whereas most countries did 
not  comply  with  their  obligations  under  the  relocation  mechanism,  only 
three were eventually subjects of judgment by the CJEU.37  

The  summer  and  autumn  of  2021  brought  more  evidence  of  the  state's 
resistance  towards  asylum  seekers.  In  response  to  increased  migration 
pressure at the border with Belarus, the government proposed and was able 
to  pass  provisions  legalising 
'pushbacks'  of  asylum  seekers  detected 
immediately  after  unauthorised  border  crossings.38  The  practice  of 
'pushbacks' to Belarus was presented by the authorities as preventing 'push-
ins',  i.e.  unauthorised  arrivals  of  economic  migrants  disguised  as  tourists 
inspired and supported by Belarusian authorities.39 Indeed, most of the illegal 

36 

37 

38 

39 

establishing provisional measures in the area of international protection for the 
benefit of Italy and Greece (2015) OJ L 248.  
Joined  Cases  C-715/17,  C-718/17  and  C-719/17  European  Commission  v  Republic  of 
Poland and Others EU:C:2020:257. 
'Komunikat  Centrum  Informacyjnego  Rządu  w  związku  z  wyrokiem  TSUE  w 
sprawie relokacji uchodźców' (n 34). For an analysis of the joined cases C-715/17, 
C-718/17 and C-719/17 and other CJEU judgments with regard to EU states' post-
2015 practices in the area of forced migration governance in the border context, 
see Frederique Berrod, 'The Schengen Crisis and the EU's Internal and External 
Borders: A Step Backwards for Security-Oriented Migration Policy?' (2020) 1(2) 
Borders in Globalization Review 53. 
Ustawa  z  dnia  14  października  2021  (n 17);  Rozporządzenie  Ministra  Spraw 
Wewnętrznych i Administracji z dnia 20 sierpnia 2021 (n 17). 
See  e.g.  the  opinions  expressed  by  Polish  MEPs  Beata  Kempa  and  Joachim 
Brudziński  during  the  debate  on  pushbacks  at  external  EU  borders  held  at 

 
 
 
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The Undermined Role of (Domestic) Case Law in Poland 

185 

border  crossings  were  supported  by  the  Belarusian  border  services  or  even 
triggered  by  the  use  of  force  towards  migrants,  previously  lured  to  Belarus 
with an (expensive) offer of 'easy' access to EU territories. 40 The increased 
migration  pressure  at  the  EU's  eastern  external  border  in  2021  has  been 
recognised  by  Poland  and  other  EU  states  as  an  element  of  'hybrid  war', 
including  'instrumentalisation  of  human  beings  for  political  purposes', 
initiated by the Belarusian president as a response to EU sanctions imposed 
against the Belarusian authorities.41 

These  circumstances,  however,  have  not  convinced  Polish  authorities  to 
offer  humanitarian  aid  for  migrants  stuck  at  the  border,  even  despite  the 
interim  measures  imposed  by  ECtHR  indicating  the  need  for  such 
assistance.42 Instead, the government introduced a state of emergency in the 
border  region  and  denied  access  to  persons  other  than  residents  and  law 
enforcement.43  Journalists,  professional  lawyers  supporting  migrants,  and 
activists offering humanitarian and medical aid were 'pushed out' from the 
border  area.  Thus,  the  Polish  authorities  contributed  to  the  vulnerable 
position of foreign nationals and infringements of crucial principles, such as 
the right to life and safety of all those remaining under the authority of the 
Polish  state,  as  well  as  the  right  to  asylum  and  freedom  from  inhumane 
treatment. The ease with which the government promoted 'pushbacks' and 
investments  in  building  fences  at  the  border,  disregarding  humanitarian 

40 

41 

42 

43 

European  Parliament  on  20  October  2021.  European  Parliament,  'Verbatim 
Report of Proceedings' (20 October 2021) 155, 160 <https://www.europarl.europa. 
eu/doceo/document/CRE-9-2021-10-20_EN.pdf> accessed 26 October 2021.  
See  e.g.  Baranowska  (n 18);  Klaus  (ed),  'Humanitarian  Crisis  at  the  Polish-
Belarusian Border' (n 7). 
These  sanctions  were  imposed  after  false  presidential  elections  in  Belarus  in 
August  2020  and  the  application  of  repressive  measures  against  the  Belarusian 
opposition. For more, see European Parliament Resolution of 7 October 2021 on 
the  situation  in  Belarus  after  one  year  of  protests  and  their  violent  repression 
(2021) 2021/2881(RSP) <https://www.europarl.europa.eu/doceo/document/TA-9-
2021-0420_EN.html> accessed 11 February 2022. 
RA and Others v Poland App no 42120/21 (ECtHR, 25 August 2021). 
Rozporządzenie Rady Ministrów z dnia 2 września 2021 r w sprawie ograniczeń 
wolności i praw w związku z obowiązywaniem stanu wyjątkowego (Dz U poz 1613 
z późn zm). 

 
 
 
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issues  related  to  this  problem,  may  be  rooted  in  the  government's  aims  to 
reduce access to asylum procedures at border checkpoints. 

III. THE BORDER GUARD'S PRACTICES RESTRICTING ACCESS TO 
ASYLUM: ABUSE OF COMPETENCES? 

The  hardening  attitude  towards  forced  migrants,  taking  the  form  of 
'pushbacks' and refusing entry to asylum seekers, has attracted the attention 
of  social  activists  and  legal  professionals  offering  support  to  migrants,44 
public  bodies  involved  in  protection  of  human  rights,45  and  eventually  also 
international bodies such as the ECtHR. Any initiative aimed at investigating 
(from  any  angle  –  legal,  sociological,  and  political)46  the  source  and 
consequences of denied access to the asylum procedure in Poland requires an 
assessment  of  the  Border  Guard's  role  in  this  context.47  This  public 
institution is subject to the Ministry of the Interior. Its name could be taken 
to  indicate  a  narrow  scope  of  competences.  In  fact,  however,  the  Border 
Guard's role is extensive, and includes giving (or denying) permission to cross 
the  border,  detecting  immigration  law-  and  border-related  infringements 
(both at the border and within the territory), conducting return procedures, 
and – in certain circumstances – granting permits for stay. Such a broad scope 
of competencies, including the Commander-in-Chief of the Border Guard's 

44 

45 

46 

47 

Chrzanowska and others (n 14); Górczyńska and Szczepanik (n 14). 
'Wystąpienie  do  Komendanta  Głównego  Straży  Granicznej  w  sprawie  praktyk 
stosowanych wobec cudzoziemców na przejściach granicznych w Terespolu i w 
Medyce' (Rzecznik Praw Obywatelskich, 7 April 2017) <https://bip.brpo.gov.pl/ 
sites/default/files/Wyst%C4%85pienie%20do%20Komendanta%20G%C5%82
%C3%B3wnego%20Stra%C5%BCy%20Granicznej%20w%20sprawie%20prakt
yk%20stosowanych%20wobec%20cudzoziemc%C3%B3w%20na%20przej%C5
%9Bciach%20granicznych%20w%20Terespolu%20i%20w%20Medyce.pdf> 
accessed 19 August 2020. 
Klaus, 'Closing Gates to Refugees' (n 4); Białas, Górczyńska and Witko, Access to 
Asylum Procedure at Poland's External Borders (n 6); Follis (n 15). 
For  more,  see  Maja  Łysienia,  'Access  to  Effective  Remedies  for  Foreigners 
Affected  by  Decisions,  Actions,  and  Inactions  of  the  Polish  Border  Guard'  in 
Sergio  Carrera  and  Marco  Stefan  (eds),  Fundamental  Rights  Challenges  in  Border 
Controls  and  Expulsion  of  Irregular  Immigrants  in  the  European  Union:  Complaint 
Mechanisms and Access to Justice (Routledge 2020). 

 
 
 
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role  as  appeal  body,  raises  questions  about  the  availability  of  effective 
remedies for foreigners affected by decisions issued by this institution.48  

As regards the subject of this article, the crucial competencies of the Border 
Guard are  the tasks performed at the external border  and, in particular, at 
border  checkpoints.49  There,  Border  Guard  officers  conduct  a  check  of 
persons  and  the  documents  they  possess.  When  conditions  for  entering 
Poland  are  not  fulfilled,  e.g.  due  to  lack  of  valid  documents,  they  issue  an 
administrative decision on refusal of entry. The Law on Foreigners envisages 
several prerequisites for issuing such a decision. An expression of intent to 
submit an asylum application or an already submitted asylum application is 
expressly  mentioned  as  pre-empting  the  issuance  of  a  refusal  of  entry.50 
When persons appearing at the border declare their intention to apply for 
international  protection  during  a  border  check,  the  Border  Guard  is 
supposed to receive the asylum application and immediately pass it along to 
the  Head  of  the  Office  for  Foreigners,  an  administrative  central  body 
supervised by the minister of internal affairs.51 Therefore, the statutory task 
of the Border Guard makes it a sort of intermediary between the Office for 
Foreigners  and  the  asylum  applicant  as  far  as  submitting  applications  is 
concerned. This task does not include considering whether the application is 
justified or not.52  

48 

49 

50 

51 

52 

See Ustawa z dnia 12 października 1990 r o Straży Granicznej, tj Dz U z 2019 r poz 
147 z późn zm) art 1 sub-s 2, setting forth all tasks of the Border Guard. 
The  current  conduct  towards  persons  apprehended  outside  border  crossing 
points and denied the right to ask for asylum is a very recent phenomenon that 
appeared in mid-2021. It involves procedures other than the refusals of entry at 
border checkpoints analysed in this article.  
See  Law  on  Foreigners  (n 9)  art  28,  specifying  the  circumstances  in  which  the 
decision on refusal of entry should be made and when it is excluded. 
See.e.g.  Chlebny,  'Rozdział  2.  Postępowanie  w  sprawach  udzielania  ochrony 
międzynarodowej oraz pozbawiania statusu uchodźcy lub ochrony uzupełniającej' 
(n 16) 1024–26. The Head of the Office for Foreigners is responsible for assessing 
the  merits  of  the  application  and  issuing  a  decision,  i.e.  granting  or  denying 
international protection. Law on Protection (n 10) arts 23-24. 
For commentary on article 28 of the Law on Foreigners (n 9) and the role of the 
Border  Guard  in  determining  the  positive  and  negative  premises  of  issuing  a 
refusal  of  entry,  see  Chróścielewski,  Hauser  and  Chlebny  (n 16);  Rafał  Rogala, 

 
 
 
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Refusals of entry are issued by the head of the Border Guard outpost and may 
be appealed to the Commander-in-Chief of the Border Guard.53 The initial 
decision  is  executed  immediately  and  appeal  has  no  suspensive  effect.  A 
further appeal against Commander-in-Chief's decision can be brought before 
an  administrative  court,  which  checks  whether  the  Border  Guard  acted  in 
compliance with the law in force and within the framework of its statutory 
competences.54  It  seems  that,  despite  the  Border  Guard's 
lack  of 
competencies,  assessing  who  was  (and  who  was  not)  eligible  to  submit  an 
asylum  claim  during  border  checks  became  a  common  practice  after  2015. 
The reasons behind this can be attributed to beliefs held by border guards and 
supported by the authorities, as suggested by one representative of the public 
institution charged with implementing the migration and asylum law:  

I really don't like that every time I speak to the officers there is a belief that 
the asylum procedure is abused. Of course, it is, we all know that it is. […] 
However, such a belief that every foreigner [abuses the procedure] when they 
enter  and  even  say  that  something  happened  in  their  country,  is  so  strong 
among the officers conducting the [preliminary] interview that it interrupts 
fair  performance  of  the  duties.  If  this  is  added  to  the  lack  of  any 
documentation of the course of such an interview, then we have the effect 
discussed here: these people who theoretically should be admitted, they do 
not enter Poland.55  

The  fact  that  migrants  were  being  refused  entry  despite  declaring  an 
intention to apply for asylum led to questions being raised by human rights 
campaigners (chiefly NGOs and the Commissioner for Human Rights) about 
the  feasibility  of  exercising  the  right  to  asylum  at  the  eastern  border  of 
Poland.  It  also  led  to  discussions  about  the  limits  of  the  Border  Guard's 
competencies and the legal restraints on the administrative procedures they 

'Dział III. Przekraczanie granicy' in Jacek Chlebny (ed),  Prawo o cudzoziemcach. 
Komentarz (Wydawnictwo CH Beck 2020) 130–132. 
Law on Foreigners (n 9) art 33. 
See s IV for more details about administrative courts and appellate procedures. 
Group Discussion (Warsaw, Poland, 10 December 2018). 

53 

54 

55 

 
 
 
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The Undermined Role of (Domestic) Case Law in Poland 

189 

conduct.56 Since these concerns pertain to implementation of law, addressing 
them required legal intervention and judicial assessment of the practices. 

IV. INVOLVING THE COURTS AS A STRATEGY TO UNBLOCK ACCESS TO 
THE ASYLUM PROCEDURE 

The evidence gathered by human rights campaigners at border checkpoints 
during monitoring visits confirmed that oral declarations of intent to apply 
for asylum were either ignored or misinterpreted by the border guards during 
border checks.57 Reporting the problem to the government and publishing 
accounts,  however,  did  not  bring  any  change  to  the  practices  identified  as 
infringing both domestic administrative law and international commitments 
related to asylum.58 This is due to the fact that public officials, at all levels of 
the  public  administration  responsible  for  migration  control,  perceived  the 
Border Guard's practices as fully proper and compliant with the law in force.59  

57 

58 

56  Monika Szulecka, 'Border Management and Migration Controls in Poland' (2019) 
2019/24 54 <http://www.diva-portal.org/smash/ record.jsf?pid=diva2%3A1348294 
&dswid=-7631> accessed 20 November 2019; Łysienia (n 47).  
See e.g. Chrzanowska and others (n 14); Górczyńska and Szczepanik (n 14); 'The 
Commissioner's Inquiry to the Border Guard and the Ministry of Foreign Affairs 
Regarding  the  Foreigner  Who  Was  Refused  Entry  to  Poland'  (Rzecznik  Praw 
Obywatelskich, 13 June 2017) <https://bip.brpo.gov.pl/pl/content/rzecznik-pyta-
stra%C5%BC-graniczn%C4%85-i-msz-o-odmow%C4%99-prawa-wjazdu-
cudzoziemcowi> accessed 11 February 2022. 
See e.g. the response of the Ministry of Administration to the Commissioner for 
Human Rights' enquiry related to refusals of entry issued to asylum seekers at the 
border.  'Rozmowy  Straży  Granicznej  z  cudzoziemcami  na  granicy  nie  będą 
protokołowane.  Odpowiedź  MSWiA  dla  Rzecznika' 
(Rzecznik  Praw 
Obywatelskich, 9 November 2018) <https://www.rpo.gov.pl/pl/content/rozmowy 
-strazy-granicznej-z-cudzoziemcami-na-granicy-nie-b%C4%99d%C4%85-
protokolowane-odpowied%C5%BA-mswia-dla-RPO>  accessed  26  November 
2020. 
This  assessment  was  also  shared  by  the  judges  who  adjudicated  13  of  the  cases 
analysed  in  the  first  instance.  For  more,  see  s  4.  See  also  'Rozmowy  Straży 
Granicznej z cudzoziemcami na granicy nie będą protokołowane' (n 58); Białas, 
Górczyńska and Witko, Access to Asylum Procedure at Poland's External Borders (n 6) 
12-13.  

59 

 
 
 
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Efforts by human rights campaigners to raise awareness among the general 
public did not influence the disputed border practices. In light of this, NGO 
representatives began to perceive the courts as the necessary last resort for 
dealing  with  the  alleged  unlawful  conduct  of  the  administrative  bodies 
responsible for migration control. In an effort to build cases to bring before 
the  courts,  lawyers  working  for  NGOs  involved  in  providing  legal  aid  to 
migrants,  together  with  representatives  of  the  Warsaw  Bar  Association, 
decided to intervene directly at the border checkpoint in Terespol.60 On 17 
March 2017, 14 attorneys authorised to represent 26 asylum seekers travelled 
to  the  checkpoint  in  Terespol  and  attempted  to  draw  the  attention  of  the 
Border Guard to their clients' declarations of intent to apply for asylum. Even 
the presence of attorneys on the spot did not influence the Border Guard's 
conduct; the attorneys were refused contact with their clients and the asylum 
seekers were refused entry.  

The  lawyers  who  participated  in  the  intervention  then  appealed  these 
refusals  of  entry  before  the  competent  court,  expecting  that  the  resulting 
rulings  could  influence  the  disputed  practices  or  legal  framework.  Indeed, 
these  actions  initiated  the  development  of  domestic  case  law  addressing, 
directly, the insufficient documentation of activities preceding the refusal of 
entry  and,  indirectly,  restrictions  on  access  to  the  asylum  procedure  as 
encountered at the eastern border of Poland. At the same time, however, the 
lawyers  realised  that,  behind  those  cases,  there  were  people  waiting  for 
immediate  solutions  to  their  problems  who  were  not  interested  in  mere 
symbolic recognition of the unjust treatment they faced. Eventual judgments 
were  not  a  satisfactory  solution  for  the  individuals  concerned,  since  the 

60 

The  initiative  of  the  Warsaw  Bar  Association  was  supported  by  two  leading 
NGOs in the area of legal aid provided to migrants: the Helsinki Foundation for 
Human  Rights  and  the  Association  for  Legal  Intervention.  For  more 
information, see 'At the Border. Attorneys from Warsaw Bar, HFHR and ALI 
Help  Asylum  Seekers  in  Terespol'  (Helsińska  Fundacja  Praw  Człowieka,  17 
March 2017) <http://www. hfhr.pl/en/at-the-border-attorneys-from-warsaw-bar-
hfhr-and-ali-help-asylum-seekers-in-terespol/>  accessed  14  May  2019;  Jacek 
Białas,  Marta  Górczyńska  and  Daniel  Witko,  Dostęp  do  procedury  azylowej  na 
zewnętrznych  granicach  Polski.  Stan  obecny  i  wyzwania  na  przyszłość  (Helsińska 
Fundacja Praw Człowieka 2019) 11 <http://www.hfhr.pl/wp-content/uploads/2019 
/04/Dost%C4%99p-do-procedury-azylowej-v2.pdf> accessed 27 April 2019. 

 
 
 
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191 

decision  refusing  entry  was  executed  immediately  and  appeals  had  no 
suspensive effect.  

The limitations of the legal action taken by human rights campaigners reflect 
the narrow scope of judicial review in the area of asylum, including access to 
the  asylum  procedure.  This  sphere  is  subject  to  the  competence  of 
administrative  courts, 
i.e.  the  regional  courts  and  the  Supreme 
Administrative  Court  (SAC).  While  these  courts  are  part  of  the  judicial 
system in Poland, alongside the Supreme Court, common courts, and military 
courts,61 the role of the administrative court is limited to assessing the legality 
of administrative conduct (here: issuing refusals of entry), not the substance 
of  the  case  (here:  access  to  the  asylum  procedure  from  a  human  rights 
perspective).62 This, however, does not diminish the role of these courts in 
disciplining public entities.63  

Interventions aimed at unblocking access to the asylum procedure took place 
in challenging circumstances, at a time when the authorities lacked respect 
for the separation of powers and the Constitution, as claimed by many legal 
experts.64  While  the  Polish  Constitution  guarantees  the 
judiciary's 
independence  from  any  other  power,  regardless  of  the  type  of  court,  and 
envisages  that  judges  shall  be  impartial,  independent  (in  performing  their 
duties) and subject only to the Constitution and statutes,65 these and other 
constitutional guarantees attached to the judicial office (as well as respect for 

61 

62 

63 

64 

65 

Konstytucja Rzeczypospolitej Polskiej z dnia 2 kwietnia 1997 r (DzU 1997  nr 78 
poz 483) art 175 [Constitution of Poland]. 
Chróścielewski, Hauser and Chlebny (n 16); Dąbrowski (n 16). For a comment on 
the role of domestic courts and the ECtHR in adjudicating asylum-related cases, 
see  also  Thomas  Spijkerboer,  'Subsidiarity  and  "Arguability":  The  European 
Court of Human Rights' Case Law on Judicial Review in Asylum Cases' (2009) 21 
International Journal of Refugee Law 48, 52. 
'The  Division  of  Competences  between 
See  Przemysław  Szustakiewicz, 
Administrative  Courts  and  Common  Courts  in  Poland'  (2020)  58  Studia 
Politologiczne 49. 
See  e.g.  Adam  Bodnar,  'Protection  of  Human  Rights  after  the  Constitutional 
Crisis in Poland' (2018) 66 Jahrbuch des öffentlichen Rechts der Gegenwart 639, 
640; Miroslaw Wyrzykowski, 'Experiencing the Unimaginable: The Collapse of 
the Rule of Law in Poland' (2019) 11 Hague Journal on the Rule of Law 417.  
Constitution of Poland (n 61) arts 173, 178. 

 
 
 
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the Constitution) have been significantly threatened by the introduction of a 
number  of  reforms  since  late  2015.  These  directly  affected  the  common 
courts and the Supreme Court, as well as the National Council of Judiciary, 
leading  to  a  perceived  increase  in  the  political  subordination  of  judges, 
undermining  the  pillars  of  the  judiciary  and  decreasing  the  status  of  the 
profession. Reforms in the system of justice turned out to be one of the most 
visible facets of a broader rule of law crisis in Poland, infringing the rule of 
tripartite  division  of  powers  in  Poland.66  Another  important  facet  of  this 
crisis is a lack of respect for the hierarchy of law (or a selective approach to 
this, e.g. respecting EU law when it serves the objectives of the government 
and  ignoring  it  when  it  contradicts  the  applied  policy).67  Despite  these 
circumstances, human rights campaigners had little choice but to rely upon 
the  judicial  system  when  other  approaches  (e.g.  inquiries  and  raising 
awareness) failed. 

V. DOMESTIC COURTS RULING ON ADMINISTRATIVE PRACTICES AT 
BORDER CHECKPOINTS 

The judgments released by the SAC mostly address problems envisaged in the 
Law on Foreigners and the Administrative Procedure Code,68 as well as the 

66 

67 

68 

See e.g. 'Rule of Law: European Commission Launches Infringement Procedure 
to Protect Judges in Poland from Political Control' (n 8); European Commission, 
'2020  Rule  of  Law  Report:  Country  Chapter  on  the  Rule  of  Law  in  Poland' 
(Commission  Staff  Working  Document,  30  September  2020)  SWD(2020)  320 
Final  <https://ec.europa.eu/info/sites/default/files/pl_rol_country_chapter.pdf> 
accessed  11  February  2022.  See  also  Bodnar  (n 64);  Wyrzykowski  (n 64); 
Małgorzata  Gersdorf  and  Mateusz  Pilich,  'Judges  and  Representatives  of  the 
People: A Polish Perspective' (2020) 16 European Constitutional Law Review 345. 
Stanisław Biernat and Ewa Łętowska, 'This Was Not Just Another Ultra Vires 
Judgment!' (Verfassungsblog, 27 October 2021) <https://verfassungsblog.de/this-
was-not-just-another-ultra-vires-judgment/>  accessed  31  October  2021.  See  also 
the debate at the European Parliament on the rule of law crisis in Poland and the 
primacy of EU law. European Parliament, 'Verbatim Report of Proceedings' (19 
October 2021) 27-90 <https://www.europarl.europa.eu/doceo/document/CRE-9-
2021-10-19_EN.pdf>  accessed  26  October  2021.  For  more  on  the  selective 
application of EU law, see s V. 
Ustawa z dnia 14 czerwca 1960 r Kodeks postępowania administracyjnego (tj Dz 
U z 2020 r poz 256 z późn zm). 

 
 
 
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Schengen Borders Code.69 Even if the cases relate to the constitutional right 
to  asylum,70  seeking  asylum  is  analysed  merely  as  one  of  the  negative 
prerequisites for issuing a refusal of entry. Therefore, while these decisions 
refer to denial of access to the asylum procedure, their  content focuses on 
how the Border Guard conducted the first and second line border checks, as 
well  as  how  it  justified  the  refusal  of  entry.  The  administrative  court 
proceedings  are  not  recorded  in  any  direct  way  (e.g.  video,  audio,  detailed 
transcription,  or  even  detailed  description).  This  means  that  subsequent 
courts  must  rely  solely  on  statements  delivered  by  the  parties.  Indeed,  the 
lack  of  proper  documentation  of  the  preliminary  interview  at  the  border 
(conducted  during  the  second  line  check)  has  given  rise  to  disagreement 
between  human  rights  campaigners  and  the  Border  Guard  and  has  been 
repeatedly addressed by first- and second-instance courts. 

The Warsaw Regional Administrative Court (WRAC) has issued at least 39 
judgments  in  cases  concerning  persons  refused  entry  and  pointing  to  the 
intent  of  applying  for  asylum  at  the  border.71  The  WRAC  is  one  of  16 
Regional  Administrative  Courts 
in  Poland,  corresponding  to  the 
administrative division of Polish territory into 16 voivodeships. Complaints 
against administrative bodies are submitted to the Regional Administrative 
Court  located  not  in  the  voivodeship  where  the  underlying  conduct  giving 
rise to the dispute took place, but rather where the relevant administrative 
body has its seat. Therefore, in the first instance, only the WRAC processes 
complaints  against  refusals  of  entry  issued  by  the  Border  Guard.  Although 
the judgments of the WRAC are not final – they can be appealed before the 
SAC  –  they  take  on  importance  in  explaining  the  disagreement  over  the 
legality of the disputed practices at the border.  

69 

70 

71 

Regulation  (EU)  2016/399  of  the  European  Parliament  and  of  the  Council  of  9 
March 2016 on a Union Code on the rules governing the movement of persons 
across borders (Schengen Borders Code) [2016] OJ L77/1. 
The right to seek asylum is enshrined in article 56 of the Constitution of Poland 
of 1997.  
This  number  does  not  represent  all  refusals  of  entry  appealed  before  the 
administrative court. 

 
 
 
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In 26 of the 39 cases considered, the WRAC found the foreigners' complaints 
justified and revoked the Border Guard's decisions.72 In the remaining 13, the 
WRAC  upheld  the  decision  of  the  Border  Guard  and  dismissed  the 
complaint. However, nine of these decisions were appealed before the SAC, 
which in two instances found improper conduct by the administrative body 
and  revoked  the  decisions  of  Border  Guard  and  the  first-instance 
administrative court. The Border Guard submitted a cassation appeal in all 
but seven of the mentioned 26 cases, but each of these appeals was rejected.73  

The  SAC's  first  important  rulings  on  the  issue,  released  in  2018,  did  not 
exactly "open" access to the asylum procedure at the border. However, they 
did confirm that the administrative body had not sufficiently detailed their 
decisions  refusing  entry,  in  particular  in  cases  raising  doubts  regarding  the 
reasons  for  arrival.  The  Court  found  that  the  Border  Guard  provided 
insufficient documentation of the preliminary interview and failed to explain 
how it selected the documents it held as evidence for the refusal of entry.74 
The  SAC  commented  on  the  official  notes  prepared  by  the  Border  Guard 
refusing entry in the following way: 

The content of the prepared note […] contains very laconic information as to 
the circumstances that could be significant for the determination that the 
foreign woman may not be refused entry […]. On the basis of this ambiguous 
content of the note, it is not possible to assess that there are no obstacles to 
issuing a decision refusing entry to the territory […]. The questions she was 
asked are unknown. It is not known whether the note reflects the applicant's 

72 

73 

74 

In  15  of  these  cases,  the  Court  also  ruled  on  the  discontinuance  of  the 
administrative procedure. Such decisions have been questioned by legal experts, 
who  indicated  that  judicial  control  over  the  administrative  conduct  becomes  a 
façade  when  the  court  proceeding  is  discontinued  only  because  the  foreigner 
refused  entry  is  no  longer  present  on  the  territory  of  Poland.  Chróścielewski, 
Hauser and Chlebny (n 16) 75. 
The comprehensive study completed in April 2019 by the Helsinki Foundation 
for  Human  Rights,  which  referred  to  37  cases  adjudicated  by the  first-instance 
court,  found  a  similar  percentage  of  court  decisions  upholding  and  revoking 
decisions of the Border Guard. Białas, Górczyńska and Witko, Dostęp do procedury 
azylowej na zewnętrznych granicach Polski (n 60) 31–32. 
See  e.g.  SAC  judgment  no  II  OSK  345/18  (20.09.2018);  SAC  judgment  II  OSK 
1713/18 (02.10.2018); SAC judgment II OSK 2270/18 (11.01.2019).  

 
 
 
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entire statement or is only a brief summary of the officer's reception, i.e. the 
officer's understanding of the information provided.75 

The two last sentences of the quoted excerpt are crucial to understand the 
tensions at the border. Official notes did not reflect the full content of the 
preliminary interview; they included only the reasons justifying the refusal of 
entry. Without being able to compare these notes with detailed transcripts 
or recordings, it is impossible to know what else the foreigner might have said 
during  the  border  control.  According  to  the  administrative  rulings,  asylum 
seekers do not damage their asylum claims by declaring reasons for entry that 
are  distinct  from  seeking  protection  from  persecution  (such  as  visiting 
families).76  However,  officials  might  have  mentioned  only  these  reasons  in 
the official notes and intentionally omitted reasons linked to seeking asylum, 
leading to the issuance of the refusal of entry.  

The SAC assessed the value of official notes as low. Nonetheless, it admitted 
official  notes  as  evidence,  provided  that  they  did  not  raise  doubts  about 
whether  the  indicated  reasons  clearly  justified  the  decision  issued.  As  one 
commentator has argued, if – despite being in a position to draw up a detailed 
report – 'the administrative body reduces its obligations to drawing official 
notes,  it  unwillingly  begs  the  question  about  the  real  intents  of  the 
administrative  body  and  generates  the  risk  of  neglecting  the  course  of  the 
events that was recorded only in that way'.77 This opinion is echoed by other 
voices  calling  for  transparency  in  border  control  procedures  and,  in 
particular,  for  better  documentation  of  administrative  conduct  with 
(potential) asylum applicants.78 

Although  the  domestic  courts  found  the  prevailing  mode  of  documenting 
border checks insufficient to comply with the Polish administrative code in 

75 

76 

77 

78 

SAC judgment no II OSK 414/19 (18.07.2019).  
SAC  judgment  no  II  OSK  345/18  (n 74);  SAC  judgment  no  II  OSK  830/18 
(20.09.2028); SAC judgment no II OSK 1674/18 (20.09.2018); SAC judgment no 
II OSK 890/18 (20.09.2018). See also Rogala (n 52) 131–32. 
Dąbrowski (n 16).  Dąbrowski's analysis relates to a case concerning a refusal of 
entry issued to a person whose reason for entry was not sufficiently determined. 
'Wystąpienie  do  Komendanta  Głównego  Straży  Granicznej  w  sprawie  praktyk 
stosowanych wobec cudzoziemców na przejściach granicznych w Terespolu i w 
Medyce'  (n 45);  Białas,  Górczyńska  and  Witko,  Access  to  Asylum  Procedure  at 
Poland's External Borders (n 6). 

 
 
 
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any cases raising doubts regarding the reasons of entry, the Border Guard saw 
these rulings as pertaining only to the cases specifically appealed. While they 
recognised the negative assessment of the way they issued decisions refusing 
entry to individual potential asylum applicants, recognition is not the same as 
acceptance,  as  demonstrated  by  the  persistence  of  the  criticised  practices. 
The border guards, with the support of the Ministry of Interior, deemed that 
the  case  law  was  not  applicable  to    daily  practices  involving  hundreds  or 
thousands of foreigners appearing at the border checkpoints. According to 
one interviewed representative of the Border Guard, the rulings issued up to 
the end of 2018 included ambivalent statements, not consistent case law:  

Many cases related to the refusals of entry were concluded by the voivodship 
court or the Supreme Administrative Court […]. We lost 20 and something 
cases. However, there were 19 or 18 verdicts in favour of the Border Guard. 
And this shows that the case law for the courts is not obvious. There were 
some  recommendations  after  the  visits  of  the  Commissioner  (for  Human 
Rights) and when we found them appropriate, we implemented them. There 
might  happen  that  the  officer  interpreted  something  improperly,  but  we 
supervise it […]. It is also not simple for the front-line  officer to interpret 
certain things on spot.79 

For  the  Border  Guard,  the  incoherence  of  the  first  instance  rulings  of  the 
WRAC became an important argument to defend its practices at the border. 
Indeed, in 13 sentences judges found no irregularities in the conduct at the 
border.  Following  arguments  presented  by  the  Border  Guard,  the  court 
pointed  to  the  specificity  of  the  border  check  (the  need  for  efficiency 
foreclosing the possibility of giving access to third parties at every stage of 
border check) and the Border Guard's focus on preventing entry of persons 
not meeting the requirements posed by the law in force.80 Moreover, in the 
verdicts  dismissing  appeals  against  administrative  decisions  by  the  Border 
Guard upholding refusals of entry, the WRAC questioned the results of the 
monitoring initiatives referred to by the complainants. They found them to 
be subjective assessments of the situation at the border, made by visitors not 

79 

Interview (Warsaw, Poland, 21 December 2018). 
80  WRAC judgment no IV SA/Wa 2264/17 (20.02.2018). 

 
 
 
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familiar with daily practices of border control who paid attention to isolated 
incidents rather than common practices.81 

The  SAC,  by  contrast,  gave  credence  to  requests  directed  by  the 
Commissioner for Human Rights to the Border Guard and the Ministry of 
Interior to guarantee access to the asylum procedure, based on findings from 
monitoring  visits  at  the  eastern  border.82  Additionally,  the  SAC  indicated 
that improper conduct by administrative bodies, such as paying insufficient 
attention  to  the  legal  prerequisites  for  issuing  a  decision  refusing  entry, 
undermines trust towards public administration. Last, but not least, the SAC 
noted that lack of respect for the non-refoulement rule could be perceived as 
a  threat  to  human  rights  protection.83  However,  this  lack  of  respect  was 
characterized as a consequence of 'misinterpretation' of declarations given by 
asylum  seekers  at  the  border.  Indeed,  if  this  issue  does  not  appear 
spontaneously, officers are not obliged to verify whether or not the person 
undergoing border check wants to apply for international protection, as was 
confirmed in some judgments of the WRAC.84 While the officers are obliged 
to  clarify  any  stated  reasons  for  entry  that  could  potentially  be  linked  to 
asylum seeking, the lack of evidence available to the courts usually left them 
no basis on which to decide whether the declarations given by foreigners were 
sufficiently clear. 

Not all border checkpoints suffered from the same procedural deficiencies. 
For  instance,  in  Medyka,  at  the  border  with  Ukraine,  the  Border  Guard 
routinely prepared detailed written reports in connection with its decisions 
on refusal of entry.85 However, in Terespol, the most popular entry point for 
asylum  seekers  at  the  Belarusian-Polish  border,  only  official  notes  were 
taken,  sometimes  in  circumstances  that  did  not  allow  for  privacy  and 
individual  treatment  of  foreigners  explaining  their  reasons  for  entering 
Poland  despite  lacking  documents  authorising  them  to  do  so.86  Several 

81  WRAC  judgment  no  IV  SA/Wa  2005/17  (23.11.2017);  WRAC  judgment  no  IV 

82 

83 

SA/Wa 1044/18 (02.07.2018).  
SAC judgment no II OSK 1062/18 (20.09.2018).  
SAC judgment no II OSK 1752/18 (26.07.2018).  

84  WRAC  judgment  no  IV  SA/Wa  1847/17  (17.10.2017);  WRAC  judgment  no  IV 

85 
86 

SA/Wa 1829/17 (21.11.2017).  
Chrzanowska and others (n 14). 
Ibid; Górczyńska and Szczepanik (n 14). 

 
 
 
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requests  were  directed  to  the  Border  Guard  to  unify  the  practices  and 
introduce an obligation to prepare written reports before refusing entry. In 
response,  the  Border  Guard  found  that  such  detailed  reports  were  not 
required by Polish law and instead issued instructions for its officers to draw 
up official notes including only a summary of declarations given by foreigners 
at  the  border,  an  approach  it  claimed  was  compliant  with  the  Schengen 
Borders Code.87 In this way, the Border Guard addressed the requests in a 
direction that went against the purposes these requests sought to achieve.88 
This only deepened the problem described in an interview by a legal expert 
representing  a  public  institution  dealing  with  challenges  faced  by  asylum 
seekers: 

The  problem  is  that  what  the  border  guards  do  is  completely  beyond  any 
form of documentation. […] [A]nything can happen there and no one really 
has any control over what was going on between an officer and a foreigner. 
[…]  As  the  Border  Guard  rightly  points  out  […]  as  a  rule,  there  is  no  clear 
provision stating that the conversation conducted within second line check 
is to be recorded. But in our opinion, it should be. Moreover, there should be 
a question as to whether someone is not afraid of returning to their country 
of  origin  due  to  ongoing  persecution.  […]  The  problem  is  that  there  is 
absolutely no political will to introduce such a change. […] We are not talking 
in terms  of good or bad practice here, we are talking about a fundamental 
violation of the law at this point. It is not a good practice when we simply 
want to lead to the situation in which a foreigner is able to actually exercise 
their rights.89 

The  Border  Guard  has  always  emphasised  its  independence  in  conducting 
border checks and competency to assess whether the conditions of entry are 

87 

88 

89 

'Rozmowy  Straży  Granicznej  z  cudzoziemcami  na  granicy  nie  będą 
protokołowane. Odpowiedź MSWiA dla Rzecznika' (n 58). 
Referring to practices observed in the Polish context, legal experts noticed that 
an exceptional mode of conduct became the rule – Border Guards deciding on the 
refusal of entry often checked what documents foreigners did or did not possess. 
Such a practice should be an exception, reserved for cases that do not give rise to 
any  doubt  (when  reasons  potentially  related  to  seeking  protection  are  not 
presented).  In  all  other  cases,  Border  Guard  should  clarify  whether  or  not  the 
person may be let in and provide detailed documentation determining the reasons 
for entry. Chróścielewski, Hauser and Chlebny (n 16) 72. 
Group Discussion (Warsaw, Poland, 10 December 2018). 

 
 
 
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fulfilled. It has also stressed the impossibility of third party presence (such as 
legal  representatives)  during  border  checks.90  The  courts  expressed  other 
views on this issue, but they were inconsistent with one another. In one of the 
SAC verdicts, the Court stated that, if a legal representative is present at the 
border  and  was  formally  authorised  to  represent  the  foreigner  before  they 
came  to  the  border,  this  representative  should  be  allowed  to  be  present 
during the second-line check.91 This is because this part of the border check 
could  have  important  administrative  consequences  for  the  foreigner.92 
However,  in  another  SAC  judgment,  the  Court  emphasised  that,  where  a 
legal  representative  'overtakes'  the  role  of  a  foreigner  undergoing  a  border 
check and interrupt's the foreigner's declaration of intent to apply for asylum, 
then the preliminary interview should be continued without their presence.93 
Such inconsistency in the judicial approach towards this issue could work in 
favour of the administrative body. Indeed, the Border Guard took advantage 
of all arguments made available by the courts in justifying its refusal to allow 
the presence of legal representatives during border checks. 

VI. (LACK OF) INFLUENCE OF EUROPEAN COURT OF HUMAN RIGHTS 
JUDGMENTS 

In light of the Border Guard's disregard of the domestic case law – case law 
which,  with  time,  became  more  extensive  and  coherent94  –  human  rights 

90 

91 

92 

93 

94 

See e.g. the Border Guard's press release concerning the intervention undertaken 
by  professional  lawyers  at  the  border  checkpoint  in  Terespol  in  March  2017: 
'Komunikat dotyczący sytuacji na przejściu granicznym w Terespolu' (Komenda 
Główna  Straży  Granicznej,  17  March  2017)  <https://strazgraniczna.pl/pl/ 
aktualnosci/4674,Komunikat-dotyczacy-sytuacji-na-przejsciu-granicznym-w-
Terespolu.html>  accessed  23  November  2020.  For  the  SAC's  assessment  of 
arguments given by the Border Guard in the appeal procedures before the court, 
see e.g. SAC judgment no II OSK 445/18 (20.09.2018); SAC judgment no II OSK 
2868/18 (11.01.2019).  
SAC judgment no II OSK 2109/18 (20.11.2018).  
Chróścielewski, Hauser and Chlebny (n 16). 
SAC judgment no II OSK 2700/18 (11.01.2019).  
In  particular,  SAC  judgments  became  very  consistent  in  requiring  the  Border 
Guard to prepare written detailed reports based on its interviews with migrants 
prior to refusing entry in cases giving rise to doubts about the declared reasons of 

 
 
 
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campaigners  involved  in  asylum-related  cases  came  to  believe  that  it  was 
necessary  to  submit  complaints  to  the  European  Court  of  Human  Rights 
(ECtHR). Domestic courts could only address the problem faced by asylum 
seekers  at  the  checkpoints  at  the  eastern  border  of  Poland  from  the 
perspective of administrative conduct. Initiating proceedings before ECtHR 
aimed  instead  at  obtaining  a  judicial  assessment  of  access  to  the  asylum 
procedure from a human rights perspective.95 The first key ruling, M.K. and 
Others v Poland, based on three cases of Chechen nationals refused entry into 
Poland on multiple occasions,96 was released on 23 July 2020. The judgment 
was long-awaited among human rights campaigners in Poland since it related 
directly  to  the  situation  at  the  Polish  border.  An  earlier  verdict  on  similar 
issues, M.A. and Others v Lithuania,97 had failed to produce a direct impact on 
administrative practices towards asylum seekers at the Polish eastern border. 
Persons willing to apply for international protection were still refused entry 
at border checkpoints and sent back to Belarus, which was indicated in M.A. 
and Others v Lithuania as an unsafe country for Chechen nationals.98 

The case M.K. and Others v Poland represented the joint adjudication of three 
complaints submitted by a total of 13 Chechens (including eight minors) who 
were  refused  entry  and  denied  access  to  the  asylum  procedure  in  Poland 
multiple  times.  It  provided  a  number  of  detailed  descriptions  of  how 
declarations given by foreigners were treated by the Border Guard and what 
role  could  have  been  played  by  detailed  written  reports,  if  they  had  been 
obligatory.  The  judgment  also  sheds  light  on  the  arguments  presented  by 
both  parties  in  the  appeal  procedures.  Therefore,  the  judgment  serves  as  a 
useful  summary  of  the  numerous  accounts  and  statements  given  by  both 

95 

entry. See SAC judgment no II OSK 829/18 (20.09.2018); SAC judgment no  II 
OSK 414/19 (n 75). 
In CEE countries, the ECtHR may be treated as a de facto asylum court. Michał 
Kowalski,  'International  Refugee  Law  and  Judicial  Dialogue  from  the  Polish 
Perspective'  in  Anna  Wyrozumska  (ed),  Transnational  Judicial  Dialogue  on 
International  Law  in  Central  and  Eastern  Europe  (Wydawnictwo  Uniwersytetu 
Łódzkiego 2017). 

96  MK and Others v Poland (n 5). 
97  MA and Others v Lithuania (n 5). 
98 

Białas,  Górczyńska  and  Witko,  Dostęp  do  procedury  azylowej  na  zewnętrznych 
granicach Polski (n 60) 21. See also Szulecka, 'Border Management and Migration 
Controls in Poland' (n 56). 

 
 
 
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human rights campaigners and the administration responsible for migration 
control in this context.  

The  experiences  of  a  Chechen  couple  with  minor  children  attempting  to 
enter Poland and apply for asylum, referred to in the judgment, constitutes 
just one of many accounts pointing to quite clearly stated, but 'unheard' wish 
to ask for protection: 

The applicants presented to the border guards documents confirming that, 
as torture victims, they had developed post-traumatic stress disorder. […] On 
each  occasion  that  the  applicants  presented  themselves  at  the  border 
crossing at Terespol, administrative decisions were issued turning them away 
from the Polish border […]. The official notes prepared by the officers of the 
Border  Guard  reported  that  the  applicants  had  indicated  (as  reasons  of 
entry),  inter  alia,  their  lack  of  money,  together  with  their  wish  to:  live  in 
Poland,  receive  financial  support,  seek  a  better  life  in  Europe,  travel  to 
Austria to join a family member residing there, settle and work in Germany, 
and educate their children in Europe.99 

The ECtHR confirmed that the Border Guard's conduct violated article 3 of 
the European Convention on Human Rights (ECHR). The court found that, 
by  repeatedly  refusing  to  receive  asylum  applications  at  the  border,  Polish 
authorities  exposed  asylum  seekers  to  risks  of  experiencing  torture  or 
inhumane  or  degrading  treatment  in  Belarus  or  Russia.100  Administrative 
practices  at  the  border  were  also  found  to  violate  article  13  of  the  ECHR, 
since decisions refusing entry were executed immediately, regardless of any 
pending  appeal,  depriving  asylum  seekers  of  an  effective  remedy  with 
suspensive effect.101 The ECtHR construed individual refusals of entry issued 
to  asylum  applicants  as  part  of  a  wider  policy  aimed  at  denying  entry  to 
foreigners  coming from Belarusian territory, which amounted to  collective 
expulsions prohibited under article 4 of Protocol No 4 of the ECHR.102 The 
ECtHR  also  found  that  the  way  in  which  Polish  authorities  neglected  the 

99  MK and Others v Poland (n 5) paras 55-56. 
100 

101 

102 

Ibid paras 174-86. 
Ibid paras 219-20. 
Ibid paras 204-11. 

 
 
 
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ECtHR  interim  measures  prohibiting  sending  asylum  seekers  to  Belarus 
violated article 34 of the ECHR.103 

The crucial outcome of this ruling, however, is that the Court found in the 
'systemic  practice  of 
experiences  of  complainants  refused  entry  a 
misrepresenting statements given by asylum seekers'.104 Thus, it assessed the 
accounts of human rights campaigners (including public institutions, such as 
the Commissioner for Human Rights or Commissioner of Children's Rights, 
and  the  NGOs)  more  reliable  than  the  explanation  provided  by  the 
government,  which  claimed  that  no  declarations  of  the  will  to  apply  for 
asylum were given by foreigners at the border and that the persons concerned 
migrated solely for economic reasons. 

The ECtHR judgment also provided a reflection on how Polish authorities 
neglected  interim  measures  that  it  had  issued  upon  request  of  lawyers 
supporting  asylum  seekers.  Based  on  convincing  evidence  that  applicants 
could not feel safe in Chechnya and that the territory of Belarus did not offer 
them  freedom  from  persecution,  the  ECtHR  received  submissions  under 
Rule 39 of the Rules of Court105 asking it to issue a decision requesting Polish 
authorities not to return a particular family to Belarus. The Court received 
similar requests with regard to three other Chechen nationals and one citizen 
of Syria (whose case was adjudicated within the joined case D.A. and Others v 
Poland).  

The  interim  measures  issued  by  the  ECtHR  in  response  to  these  requests 
were  ignored  at  the  border  checkpoint  –  asylum  seekers  covered  by  these 
decisions  were  refused  entry  to  Poland  on  several  occasions.  The  Polish 
government  argued  that  there  was  no  real  risk  of  irreparable  harm  from 
sending  the  asylum  applicants  back  to  Belarus,  as  they  had  already  stayed 
there  for  a  few  months.106  The  government  also  stated  that  the  interim 
measures  were  not  applicable  because  the  persons  concerned  were  not 
allowed to enter Poland. In consequence, they could not be removed since 
they  were  not  under  the  authority  of  Poland.  In  this  respect,  the 

103 

104 

105 

Ibid paras 235-38. 
Ibid paras 178. 
ECtHR, 'Rules of Court' (1 January 2020) <https://www.echr.coe.int/Documents 
/Rules_Court_ENG.pdf> accessed 25 November 2020. 

106  MA and Others v Lithuania (n 5) para 226. 

 
 
 
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government's  argument  ignored  the  reasoning  advanced  by  the  ECtHR  in 
support  of  the  interim  measures,  according  to  which  persons  subjected  to 
controls  by  the  Polish  border  service  on  Polish  territory  fall  under  the 
authority of Poland.107 

The  Polish  government  used  a  similar  strategy  –  based  on  denying  its  own 
authority to act – to avoid ECtHR interim measures in another case involving 
a group of 32 Afghani nationals stranded at the Belarusian-Polish border for 
several  weeks.108  Polish  authorities  denied  them  entry  into  the  territory  of 
Poland and ignored their declarations of intent to apply for asylum (expressed 
verbally, in the presence of Polish border services, human rights campaigners, 
and the media). To prevent inhumane and degrading treatment and secure 
their right to life, the ECtHR imposed interim measures ordering the Polish 
authorities  to  provide  the  asylum  seekers  with  food,  clothes,  necessary 
medical  aid  and  –  if  possible  –  shelter.109  At  the  same  time,  however,  the 
ECtHR  emphasised  the  authority  of  the  states  to  control  the  border  and 
decide who is allowed to enter or not. This became the Polish authorities' key 
argument in refusing to provide asylum seekers with any support, since their 
physical  presence  on  Belarusian  territory  meant  that  helping  them  would 
violate the territorial integrity of another country.110 

In  their  response  to  the  ECtHR,  Polish  authorities  suggested  that  the 
optimal solution for asylum seekers would be to approach the closest border 
crossing  and  apply  for  international  protection  there.111  The  authorities 
emphasised  that  the  Belarusian  border  services  were  not  interesting  in 
allowing  migrants  to  return  to  Belarus  because  they  were  profiting  from 
'pushing in' migrants to EU territory. This solution was proposed by the same 

107 

108 

109 

110 

111 

Ibid para 236. 
RA and Others v Poland (n 42).  
These interim measures were also imposed on authorities in Latvia with respect 
to 41 Iraqi nationals stuck at that country's border with Belarus. Ahmed and Others 
v Latvia App no 42165/21 (ECtHR, 25 August 2021). 
'Poland  Provided  the  ECHR  with  Its  Position  on  the  Order  for  Interim 
Measures'  (Ministry  of  the  Interior  and  Administration,  30  September  2021) 
<https://www.gov.pl/web/mswia-en/poland-provided-the-echr-with-its-
position-on-the-order-for-interim-measures> accessed 27 October 2021. 
Ibid.  The  asylum  seekers  were  staying  approximately  30  kilometres  from  the 
closest border crossing point. 

 
 
 
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Polish  authorities  that  for  multiple  years  had  been  reducing  access  to  the 
asylum  procedure  at  border  crossing  points  and  disregarded  domestic  and 
ECtHR  law  in  this  respect.  The  governmental  approach  to  the  interim 
measures raised concerns around whether ECtHR judgments would have any 
impact  on  policies  towards  asylum  seekers  at  the  border.  Such  concerns 
appeared  substantiated  –  regardless  of  the  rank  and  the  character  of  court 
delivering the judgment in favour of asylum seekers, the arguments given by 
the courts were interpreted as pertaining only to specific incidents. 

Assessing  the  impact  of  the  judgment  in  M.K.  and  Others  v  Poland  became 
challenging due to restrictions on border crossings introduced by state actors 
during the COVID-19 pandemic in 2020-21. In theory, this should not have 
affected  forced  migrants'  access  to  asylum  procedures  at  the  border.  In 
practice,  however,  such  access  was  precluded  by  the  closure  of  border 
checkpoints  and  the  suspension  of  cross-border  train  connections.  People 
seeking  asylum  were  not  included  in  the  list  of  categories  of  persons 
authorised  to  cross  the  border  and  enter  Polish  territory  during  the  time 
when  the  provisions  restricting  cross-border  mobility  were  in  force.112  In 
response to the increasing number of arrivals through the 'green border' in 
August  2021,  pandemic-related  provisions  were  changed  to  stipulate  the 
immediate  return  of  any  persons  detected  after  crossing  the  border  in  an 
unauthorised  manner 
(through  a  closed  checkpoint  or  outside  of 
checkpoints), effectively excluding the possibility of applying for asylum in 
such circumstances. Though as a mere ministerial decree this provision did 
not  supersede  the  right  to  submit  an  asylum  application,  in  practice  it 
provided a legal basis for unlawful pushbacks. 

The years 2020 and 2021 raised further questions about the state's approach 
towards  asylum  seekers,  in  particular  its  double  standards  in  this  respect. 
After  August  2020,  asylum  seekers  originating  from  Belarus  enjoyed  a 

112 

Rozporządzenie Ministra Spraw Wewnętrznych i Administracji z dnia 13 marca 
2020 r w sprawie czasowego zawieszenia lub ograniczenia ruchu granicznego na 
określonych  przejściach  granicznych  (Dz  U  poz  435  z  późn  zm).  See  also 
przed 
'Koronawirus 
prześladowaniami.  RPO  pyta  Straż  Graniczną  o  obecne  procedury  na  granicy 
wschodniej' (Rzecznik Praw Obywatelskich, 2 April 2020) <https://bip.brpo.gov. 
pl/pl/content/koronawirus-granice-ochrona-miedzynarodowa-w-Polsce> 
accessed 29 July 2021. 

cudzoziemców 

szukających 

a  prawa 

ochrony 

 
 
 
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The Undermined Role of (Domestic) Case Law in Poland 

205 

welcoming  approach  at  the  border  and,  later  on,  support  in  economic 
adjustment.  To  some  extent,  this  welcoming  approach  was  applied  also  to 
Afghani  nationals  evacuated  directly  from  their  country  of  origin.  Despite 
declaring readiness to issue only 45 humanitarian visas,113 Polish authorities 
ultimately offered approximately one thousand Afghani citizens the chance 
to reach a safe place in Poland and submit asylum applications.114 In general, 
however, non-Belarusian citizens seeking asylum faced a continuation of the 
deterrence policy, unchanged by the ECtHR judgment of July 2020. Almost 
one year later, on 8 July 2021, another ECtHR judgment was announced, in 
the  case  D.A.  and  Others  v  Poland.115  It  referred  to  the  contested 
administrative  practices  at  the  border  checkpoint  in  Terespol  –  this  time 
towards asylum seekers from Syria previously living in Belarus. The Court in 
this case essentially repeated the conclusions from its judgment in M.K and 
Others v Poland. The Court noted that decisions refusing entry violated not 
only  the  provisions  of  the  ECHR,  but  also  domestic  law,  and  were  not 
compliant with 'judgments of the domestic administrative courts that held 
that  the  officers  of  the  Border  Guard  had  not  conducted  sufficient 
evidentiary proceedings in the applicants' cases'.116 

The unchanged situation one year after the key ruling in  M.K. and Others v 
Poland, the filing of additional ECtHR cases (e.g. D.A. and Others v Poland and 
Sherov  v  Poland),117  and  other  facets  of  the  state's  incomprehension  of  EU 
values and international law,118 do not encourage faith in case law as a factor 

113 

114 

115 

116 

117 

118 

18  August 

'Ważne jest zaangażowanie polskich władz w sytuację w Afganistanie. Rzecznik 
pisze  do  MSZ' 
2021) 
(Rzecznik  Praw  Obywatelskich, 
<https://bip.brpo.gov.pl/pl/content/wazne-jest-zaangazowanie-polskich-wladz-
w-sytuacje-w-afganistanie-rzecznik-pisze-do-msz> accessed 2 November 2021. 
'Statystyki' (n 25). 
DA and Others v Poland App no 51246/17 (ECtHR, 8 July 2021). 
Ibid para 60. 
Sherov  v  Poland  and  3  Other  Applications  App  no  54029/17  (ECtHR,  11  January 
2021). 
Apart  from  the  already  mentioned  threats  to  the  rule  of  law,  this  includes,  for 
instance, discrimination against minority groups, such as the LGBT+ community. 
See e.g. Tímea Drinóczi and Agnieszka Bień-Kacała, 'Illiberal Constitutionalism: 
The  Case  of  Hungary  and  Poland'  (2019)  20  German  Law  Journal  1140;  Zofia 
Kinowska-Mazaraki,  'The Polish Paradox: From a Fight for Democracy  to the 
Political Radicalization and Social Exclusion' (2021) 10 Social Sciences 112. 

 
 
 
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shaping  governance  of  forced  migration  in  Poland.  The  same  claim  can  be 
made  about  the  state's  response  to  the  increased  number  of  arrivals  of 
migrants from states in crisis in Asia and Africa entering Poland through the 
territory of Belarus. Blocking the possibility to provide humanitarian aid in 
the border  area,119 ignoring requests for asylum from  migrants crossing the 
'green  border',  and  the  continued  and  increasingly  legalised  practice  of 
pushbacks,120 do not create expectations that the authorities will comply with 
the case law discussed above on access to the asylum procedure at the border. 
It  is,  however,  probable  that,  while  ignoring  the  case  law  in  favour  of  the 
asylum seekers, the authorities will emphasise the role of judgments in favour 
of  practices  aimed  at  returning  migrants  who  crossed  the  border  in  an 
unauthorised manner.121 This, in turn, may further substantially reduce access 
to the asylum procedure in Poland.  

VII. CONCLUDING REMARKS 

The analysis presented in this article was inspired by the growing number of 
accounts  pointing  to  ignored  declarations  of  intent  to  apply  for  asylum  at 
checkpoints along the eastern border of Poland, in the context of developing 

119  Or refusing to provide aid as ordered by the ECtHR in interim measures. See RA 

120 

121 

and Others v Poland (n 42).  
Provisions authorising pushbacks have been introduced in the legislation despite 
their  non-compliance  with  the  1951  Geneva  Convention  and  EU  directives 
regarding  asylum.  See  e.g.  Convention  Relating  to  the  Status  of  Refugees 
(adopted 28 July 1951 and entered into force 22 April 1954) 189 UNTS 150, art 33(1); 
Directive  2011/95/EU  of  the  European  Parliament  and  of  the  Council  of  13 
December 2011 on standards for the qualification of third-country nationals or 
stateless persons as beneficiaries of international protection, for a uniform status 
for refugees or for persons eligible for subsidiary protection, and for the content 
of the protection granted [2011] OJ L 337, art 21(1); Directive 2013/32/EU of the 
European Parliament and of the Council of 26 June 2013 on common procedures 
for granting and withdrawing international protection [2013] OJ L 180, arts 8-9. 
E.g. ND and NT v Spain App nos 8675/15 and 8697/17 (ECtHR, 13 February 2020). 
For  concerns  regarding  the  possible  impact  of  this  judgment  on  justifying 
pushbacks  at  the  EU  external  borders,  see  Nora  Markard,  'A  Hole  of  Unclear 
Dimensions: Reading ND and NT v. Spain' (EU Immigration and Asylum Law 
and  Policy,  1  April  2020)  <https://eumigrationlawblog.eu/a-hole-of-unclear-
dimensions-reading-nd-and-nt-v-spain/> accessed 2 November 2021. 

 
 
 
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207 

domestic and international case law in this respect. Disputed practices at the 
border involving asylum seekers have been assessed by two types of courts: 
domestic  administrative  courts  and  the  ECtHR.  The  domestic  courts 
decided  on  the  legality  of  activities  undertaken  by  Border  Guard  without 
investigating the facts. In other words, administrative courts did not verify 
whether  complainants  were  asking  for  asylum  at  the  border  or  not;  they 
merely assessed whether the administrative decision refusing them entry was 
taken in a just manner. The ECtHR, for its part, assessed the reported cases 
from  the  perspective  of  human  rights  infringements.  Regardless  of  the 
different scope of the assessment of the complaints, both the Polish SAC and 
the  ECtHR  found  the  administrative  practice  of  refusing  entry  to  persons 
declaring their will to apply for international protection improper, infringing 
either  on  the  provisions  of  administrative  proceedings  or  on  the  migrants' 
human rights. 

In its rulings, the SAC included guidance for how the Border Guard should 
conduct themselves when they take a decision on refusal of entry, reminding 
them that such a decision is precluded by a migrant's expression of an intent 
to  apply  for  asylum.  The  ECtHR,  adjudicating  complaints  from  asylum 
seekers repeatedly sent back from the Polish border to Belarus or Ukraine 
without  the  possibility  to  file  asylum  applications,  found  violations  of  a 
number  of  articles  of  the  ECHR.  However,  as  of  this  writing,  neither  the 
rulings  at  the  domestic  nor  the  international  level  have  changed  the 
administrative practices involving asylum seekers at the border, a facet of the 
Polish  administration's  broader  deterrence  policy.  This  fact  confirms  the 
weak  role  of  courts  in  shaping  forced  migration  governance  in  the  area  of 
access to the asylum procedure at the Polish border.  

Responding to the domestic and international courts' assessments, both the 
Border  Guard  and  the  government  stressed  that,  while  malpractices  could 
happen  incidentally,  they  represented  isolated  incidents.  This  has  become 
the main argument for downplaying the court decisions and neglecting the 
changes  emerging  in  the  developing  case  law.  Over  time,  the  case  law  has 
become coherent and clear about the conduct of the administrative body at 
the border checkpoints. The ECtHR has concluded that the administrative 
practices  at  the  border  were  not  incidental,  but  instead  constituted  an 
element  of  broader  state  policy,  a  'systemic  practice  of  misrepresenting 

 
 
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statements given by asylum-seekers'122, and a 'wider state policy refusing entry 
to foreigners coming from Belarus'.123 The government saw such a conclusion 
as unjust and incompatible with its vision for forced migration management, 
which  provided  the  authorities  with  sufficient  reason  to  undermine  court 
guidelines.  

The Polish authorities' continued efforts to deter asylum seekers and refusal 
to  comply  with  domestic  and  ECtHR  case  law  is  part  of  a  broader  policy 
towards forced migrants. In particular, since political debates on the threats 
posed by cross border mobility intensified in 2015, the Polish government has 
perceived  a  conflict  between  respect  for  the  rights  of  individuals  and  the 
security  of  the  state.  There  has  been  no  'golden  mean'  on  the  horizon. 
Disregard  for  case  law  seems  to  reflect  the  readiness  of  the  authorities  to 
break the rules, if only to deliver on their promise of preventing the arrival of 
'undesirable'  migrants,  among  whom  asylum  seekers  constitute  a  visible 
group.  The  situation  at  the  Polish-Belarusian  border  since  August  2021 
confirms this approach. The rules being infringed this time, however, include 
not only the right to asylum, but also the rights to life, safety, and freedom 
from inhumane treatment. The objective of protecting the external border 
has  become  paramount,  justifying  all  actions  deployed  by  the  authorities 
against  people  seen  as  a 
'weapon'  in  the  hands  of  the  Belarusian 
dictatorship.124  

Anti-refugee or anti-immigrant sentiments, together with prioritising state 
security over human rights, do not sufficiently explain the weak influence of 
both  domestic  and  international  courts  on  government  policy.  Another 
factor is the ambiguous relationship between the judiciary and the executive 
in  Poland.  Also  of  importance  is  a  current  of  disregard  for  international 
judicial  bodies. 
issued  by 
commitments  and  decisions 
Altogether,  these  problems  may  be  framed  as  a  crisis  of  the  rule  of  law, 

international 

122  MK and Others v Poland (n 5) para 174. 
123 

124 

Ibid para 208. 
For comments on mobility across Polish-Belarusian in the context of a planned 
border fence, see Jan Grzymski, Marta Jaroszewicz and Mateusz Krępa, 'Walling 
the  EU  Borders:  Past  Experiences  and  (In)Effectiveness.  The  Context  for  the 
Fence  at  the  Polish-Belarusian  Border'  [2021]  (9)  CMR  Spotlight.  Centre  of 
Migration  Research  Newsletter  <http://www.migracje.uw.edu.pl/wp-content/ 
uploads/2021/10/Spotlight-SEPTEMBER-2021.pdf> accessed 27 October 2021. 

 
 
 
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209 

characterized  by  an  apparent  disrespect  for  the  hierarchy  of  law,  the 
undermining of judicial assessments, and a decreased emphasis on values such 
as  respect  for  human  rights.  In  these  circumstances,  the  main  principle  of 
both domestic and international legal systems, i.e. that the law 'must bind not 
only  the  ruled,  but  also  –  and  primarily  –  those  who  hold  the  power',125  is 
neglected. 

Verdicts issued by domestic and international courts are released months or 
years after the events under question – in other words, long past the time of 
refusal of entry. For legal professionals and the administration, these verdicts 
are simply case law to be taken into account (or ignored). For the individuals 
whose  experiences  become  the  subject  of  court  assessment,  they  may 
constitute  delayed  reactions  to  infringements  of  their  fundamental  rights. 
Although these reactions do not solve these problems when they appear, they 
may compensate for harm experienced.126 However, taking into account the 
thousands of forced migrants who were denied possibility to apply for asylum 
at the border, recognition of harms and awards of monetary compensation in 
just a few exemplar cases does not remedy the situation. The crucial thing is 
that, despite case law and clear guidelines on how domestic and international 
law should be implemented, for forced migrants, being permitted entry into 
Poland to exercise the right to seek asylum is not the rule, but the exception. 

125 

126 

Gersdorf and Pilich (n 66) 350. 
In its judgment in MK and Others v Poland (n 5), the ECtHR ordered Poland to 
pay EUR 34,000 to compensate the non-pecuniary damage of the applicants in 
each of the three adjudicated cases (40503/17, 42902/17, and 43643/17).