Constraining Case Law – a Tale of How EU Member States Trying to Avoid Liberal Constraints and How the European Court of Justice Did Not Listen

This paper will argue that while it is true that the Europeanization of governance of immigration has led to ‘liberal constraints’ on the Member State, it is still necessary to investigate the avenues via which these constraints actually become effective. It is submitted that this occurred because of the liberal interpretation of rights of immigrants vis-à-vis the Member States by the European Court of rather than European legislation itself. This is particularly true in the field of rights for third-country nationals provided for in EU legislation. While the EU Directives that govern the field of immigration are vaguely formulated and patchy, they still need to be implemented on the national level. This provides new remedies for immigrants. Cases have eventually reached the European Court of Justice, which has followed its stance that the effectiveness of EU law had to be upheld and that EU legislation was indeed adopted to create, extend or protect rights of immigrants. All exceptions to these rights have to be interpreted narrowly in order to protect the effectiveness of the right provided by EU law. It was this very interpretation by the Court rather than the vague and imprecise legislation itself that led to said ‘liberal constraints’ on the Member States. What is almost ironic is that EU migration law is vague and imprecise exactly because Member States wanted to prevent ‘liberal constraints’ at all costs.  Rights, which are only effective via such legal constructions are weak and vulnerable and also harm legal certainty.