Coloniality and Recent European Migration Case Law

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Abstract

This chapter interrogates European law as actively contributing to the undermining of migrants’ rights, since its inception. It claims that European case law in the area of migration is a continuation of a pre-existing characteristic: the tendency to privilege the interests of European states over those of migrants and of Europeans with transnational ties. The chapter thus examines the hypothesis that current-day migrants, being people from former European colonies, are subjected to a split form of legality that was perfected at the end of the colonial era. The legal system maintains the pretence of equality before the law while at the same time relegating colonial subjects to sub-standard legal protection by either excluding them from the application of human rights standards altogether or by lowering these standards. In addition to these two elements, a third legal governance technique with its origins in colonialism is the use of emergency powers themselves. Coloniality thus remains a structuring element of human rights law as it responds to migration. Naming and exposing this colonial structure may be helpful to the extent that it makes a legal and political critique possible, in addition to helping actors to navigate the field.
Original languageEnglish
Title of host publicationMigrants' Rights, Populism and Legal Resilience in Europe
EditorsStijn Smet, Vladislava Stoyanova
PublisherCambridge University Press
Chapter4
Pages117-138
Number of pages22
ISBN (Electronic)9781009040396
ISBN (Print)9781316510711
DOIs
Publication statusPublished - Jun 2022

Bibliographical note

In: Part II - Resilience at the European Level.

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