The Refugee Crisis as a Challenge for Public Law
Author(s)
Date Issued
2016
Type
article
Volume
17
Issue
17
Start Page
981
End Page
1004
ISSN
20718322
Journal
Abstract
Since 2014, the refugee crisis has determined a sharp increase in the number of
unauthorized arrivals on the Italian shores. However, contrary to what happened in other
less affected European Union countries, the Italian government has not reacted with an antiimmigration policy. Rather, it has tried to reconcile the overarching imperative of a full
compliance with EU norms regulating external border controls with the observance of the
most compelling humanitarian obligations. The results have been mixed. Both the
functionalist bias that is inherent in the administrative action and the legislative inertia
during the crisis have produced a detrimental impact on the fundamental freedoms of the
migrants. The Article addresses four main constitutional challenges: (1) The lack of legislative
authorization for the imposition of coercive means in the context of the “hotspot approach”;
(2) the deficiencies of the Italian system for the reception of asylum seekers and refugees,
which became a source of destabilization of the Dublin system and the Schengen area; (3)
the low level of due process protection that is guaranteed to migrants that are subject to
return procedures; and (4) the problematic need to cooperate with third countries that do
not adequately protect human rights. The Italian case illustrates a distinctive, yet more
general trend. For member states who are geographically exposed to migration flows and
whose borders overlap with the external borders of the Schengen area, developing an antiimmigration or anti-EU policy would be short-sighted and self-defeating. Those states need
more—rather than less—Europe because they cannot stop the migration inflow. And they
need to effectively manage it because it is the only way to keep the Schengen area alive—
and not to be excluded from it.
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Conference(s)
GERMAN LAW JOURNAL