Between De-Legalisation and HYPER-Legalisation? on LAW, Norms and Principles in the External Management of Migration

In times of crisis, there is an increasing number of soft law tools in EU external migration, used to enable flexibility, deploying management lexicon, principles and tools as a means to avoid or minimalize the need for ‘hard’ binding law (e.g. frameworks, compacts, action plans), in a process of ‘hyper-legalisation’ of external migration (Kilpatrick, 2015; Costello, 2015). On the other hand, there is also a trend towards the ‘de-legalisation’ of migration policy (e.g. 2016 EU-Turkey Statement, confirmed by the General Court, T-192/16, 193/16), putting key legal and policy questions in forms beyond review and outside of the treaties, as in the financial crisis (Bardutzky and Fahey, 2013).

UN instruments remain the primordial instruments of migration governance. In the past, UN instruments have been used in a significant portion of EU AFSJ laws to both legitimate and standard set in EU law-making in the Stockholm programme, in particular as to directives (Fahey, 2016). The EU’s legislative programme in the AFSJ has dropped off numerically in recent times. Instead, new instruments are frequently related to emergency stop-gap principles and migration related laws. How do external norms operate here? Do they ‘police’ standards? How do legal instruments regulating the external dimension of migration draw upon UN soft and hard law/ principles? What is the understanding and definition of best practice and ‘global’ standards here? What is the place of external norms in both hard and soft legal instruments? How do external norms arise for consideration?