The Court of Justice As a Progressive Force for Rights Recognition: The Case of Migration Law and the Right to Receive Asylum

This paper looks into the role of the Court of Justice and the juridification of EU law and suggests that using the harmonization of EU immigration and asylum law as a driving force, the Court can be more than a liberal constraint to the sovereign ambitions of the member states and can act as a progressive factor for rights recognition.

It is argued, based on the examination of the Court’s jurisprudence and focusing particularly on a series of rulings produced in 2014, that the CJEU might be exploring the limits of rights recognition in the field of migration. The Court’s reasoning, enriches the harmonization process and implies far-reaching present and future effects for migration and asylum policies in Europe.

In particular, the Court has ruled that the Schengen Borders Code, the Visa Code and the Students Directive list exhaustive grounds for refusing visa and admission. Thus, the states have no discretion to refuse an applicant based on grounds not listed in the relevant EU instruments. As long as third country nationals fulfill the requirements set therein, they have the right to be admitted and to be issued a visa.

The paper analyzes the far reaching consequences of the development of the Court’s case law, as they manifest themselves in questioning sovereign international law prerogatives of states to control immigration, and in the reading of a right to be granted asylum in Article 18 of the EU Charter of Fundamental Rights.