The paradigm of the migration crisis and its influence on national legislation on irregular migration

Abstract

The aim of this article is to provide a detailed study of the ways in which the paradigm of crisis has influenced the law and practice of European countries in the field of irregular migration. Bearing in mind that the perception of “crisis” is ambiguous and does not have legal definition, the first part of this paper will provide a clarification of its scope and some contexts in which it is used. Secondly, labelling some situations as “crises” requires some urgent and unusual actions. Hence, it is important to indicate what types of legal measures and normative solutions, therefore, prevail nowadays in the practice of states. The countries that are particularly interesting in this context include Germany, Sweden, and Denmark, whose migration policies have, over the course of the past few years, decisively shifted from a relatively open approach towards more restrictive solutions. Although the crisis in the migration context is defined bipolarly, a characteristic feature of the paradigm shift is focusing on the elimination or at least limitation of the presence of foreigners on the territory of the statethrough border controls, obstruction of access to international protection and family reunification, as well as increasing the effectiveness of forced returns. The result of these consideration has led to the conclusion that on the one hand the authorities’ rhetoric of crisis not automatically mean the use of special and emergency measures foreseen by law. On the other hand, the narrative referring to defeat and catastrophe justified the introduction of controversial solutions in a hurry, often with disregard for the detailed analyses and regulatory impactassessment, which are common in such cases. At the same time, the determinant of the shape of the migration law is the “temporariness” inherent in the crisis paradigm. One of its most important elements is the departure from long-term residence permits, guaranteeing a certain stability in connection with international protection, in favour of short-term permits.