Governing through uncertainty? Migration law and governance in a comparative perspective

image: ’A farewell to the migrants’ by Yacob Ibrahim — **image:** ’A farewell to the migrants’ by Yacob Ibrahim

by Ginevra Cerrina Feroni, Veronica Federico, Renato Ibrido | University of Florence

A selection of the papers discussed in the occasion of the RESPOND conference “Unpacking the challenges & possibilities for migration governance”, held in Cambridge, Newnham College, 17-19 October 2019, has been recently published in a special issue on n.4/2020 of the Italian open access journal DPCE online, accessible at: http://www.dpceonline.it/index.php/dpceonline/issue/view/46

The nine articles offer a multidisciplinary reflexion on how uncertainty has become, both de facto and de jure, an instrument of migration governance, with severe consequences on migrants’ lives and the rule of law of hosting societies. Certainty and predictability are two basic defining features of the law per se, and of the principle of the rule of law. This entails that laws, and the legal framework they are part of, should satisfy the requirements of clarity, stability, and intelligibility. Legal certainty and predictability do not demand for absolute steadiness and reluctancy to change; but rather for a balance between stability and flexibility, and for a reasonable marge of discretion in their application to accommodate societal needs.

These fundamental elements of the rule of law are something that law students become familiar with since the very beginning of their university career. Nonetheless, law and decision-makers frequently overlook these very same basic defining features, so that legal complexity, inconsistency and unclearness too often characterise specific legal fields. Migration law is one of these fields. Here, certainty and predictability are jeopardised firstly by the frequent (and not necessarily coherent) changes migration law constantly undergoes throughout Europe. In the past three decades, migration has become a very sensitive political battlefield and each new government is prone to use it as flagship policy-domain. Intelligibility and consistency are, therefore at risk. Secondly, in several jurisdictions the executive has enjoyed quasi-plenipotentiary powers in the field of migration, to de detriment of the legislative and of the classical notion of the separation of powers. Immigration issues are de facto regulated in detail and implemented by a congeries of acts of secondary legislation (by-laws, regulations, ministerial circulars, administrative rules, etc), rather than by proper acts of Parliament. In addition to the erosion of the possibility for democratic scrutiny carried out by Parliament, this creates quite a complex intertwin of rules, which is further exacerbated by the presence of both European laws (mainly directives, but also regulations) and international treaties and customary laws. Thirdly, national migration governance systems are often characterised by the coexistence of a multiplicity of actors (all tiers of government, from the national to the local; the third sector and private companies; courts and also EU and UN agencies) with different, often overlapping, competences. As adequate mechanisms of coordination are often missing, this variety of actors ends up undermining the uniformity of the implementation of the rules as well as the evenness of practices and often results widening the discretionary power of each single office and officer involved in the migration governance system. Therefore, part of the uncertainty permeating migration governance is due to the very nature and structure of migration law, part to its implementation. The articles of the special issue discuss both, contributing to the scholar debate by providing diverse insights and different approaches to the analysis of uncertainty in migration law and governance.

The special issue explores the structural lack of certainty which affects migration law, focusing on the following research questions: Which are the consequences of this uncertainty in terms of legal coherence, migration governance, institutional effectiveness and migrants, asylum applicants and refugees’ choices? How does precariousness influence migrants’ trajectories of life? How does uncertainty affect the society as a whole and the entire legal system? Can uncertainty be regarded as a “governance strategy” and/or as a tool of migration containment and control? Which are the fundamental reasons of uncertainty?

There are neither simple nor univocal responses. Building on diverse case-studies (from the discussion of the Global Compact as source of law to the comparative analysis of institutional uncertainty in migration governance in Europe; from the analysis of “solidarity crime” to the insight on the enforcement of the law criminalising irregular immigration in France and Italy; from the discussion of the cases-study of the Italian and Turkish immigration governance to the analysis of statelessness and the (in)coherence between the approaches of EU and its Member States, to end with limits of the EU external action), the special issue provides the reader a critical overview on how uncertainty permeates migration law and governance.

This kaleidoscope of approaches offers useful insights to identify patterns of explanations for uncertainty and for its impact on the rule of law, the guarantee of fundamental rights and for the capacity of contemporary democratic states to provide a sound governance to the phenomenon of migration.