The EU, Migration Law, and the Rule of Law: An Ambiguous Relationship

The GEM Diamond Annual Conference in Paris started with a powerful keynote, inviting the guests to discuss the intricate relationship between the EU's migration policies and the rule of law. Professor Ségolène Barbou des Places from GIS-EuroLab (Université Paris 1 Panthéon-Sorbonne) highlighted the inconsistencies in how the EU institutions define and apply the rule of law in migration and asylum policies. While the EU presents itself as a defender of democratic values, transparency, and human rights, it contradicts itself with migration policies.

At the core of the discussion lies the question: What does the rule of law mean in the context of EU migration policy? The discussion was based on a tripartite analysis: foundational, fictional, and finally the de-substantialised (or desacralised) dimension of the rule of law.

The foundational rule of law was examined through the case law of the Court of Justice of the European Union (CJEU), which has established the rule of law as a fundamental value of the EU legal order (Les Verts, 1986 CJEU). Given its foundational status, migration policy should inherently uphold and respect the rule of law in its enforcement. However, there is growing concern that the rule of law is increasingly a fictional construct—a rhetorical tool rather than a consistently upheld principle. Notably, the concept of the rule of law is absent from the New EU Pact on Migration.

In this concern, the discussion concerning the fictional rule of law explored the difficulties in enforcing the rule of law in migration policy, and the “fiction” around this concept in these fields. Nowhere is this more evident than in the Dublin system, which assumed that all Member States (MMSS) are "safe countries" and that they respect fundamental rights and the rule of law. This presumption, reinforced by the CJEU’s jurisprudence, creates an illusion of uniform protection within the European Asylum System, relying on mutual trust between Member States.  The CJEU has ruled that serious and systemic violations of EU law—such as pushbacks and arbitrary detention—do not automatically preclude transfers under Dublin, unless they pose a real risk of inhuman or degrading treatment (Article 4 Charter of Fundamental Rights of the European Union). This approach exposes the tension between legal presumption and reality: the concept of a "safe country" is treated as an objective fact, yet asylum seekers often face an accelerated and expeditious process where they must prove why a country deemed "safe" is not safe for them. The burden of proof, in turn, shifts unfairly onto the applicant, reinforcing a legal fiction rather than a substantive protection system.

The last point concerned the de-sacralised rule of law – in her speech the Professor introduced how the rule of law loses its power before migration policies in the EU. At the heart of the EU's approach lies a fundamental contradiction: while it upholds human rights and democratic values, it simultaneously pursues restrictive migration policies that undermine these very principles. A key example is the externalization of borders – one of the main points of the new EU Pact on Asylum. In this, the EU delegates migration management to non-EU states, thereby distancing from potential violations of the rule of law.

The Professor provided for a comprehensive legal analysis of EU Migration Policy from a legal scholar’s point of view. Addressing an audience composed of mainly political scientists, she had the ability of delving into the interdisciplinarity of the issue and to explain judicial cases to a wider audience. The rule of law, as conceived by the EU, should prevent legal frameworks from becoming mere tools of political domination. Yet, in the EU’s migration policies, the rule of law is both a foundational ideal and a convenient fiction—a concept that is invoked when useful and disregarded when inconvenient.

This opening speech aligned perfectly with the broader discussion of the GEM Diamond Project on dissensus within the EU’s liberal democracy. In my view, EU migration policy is one of the key issues where deep and disruptive dissensus among Member States have paralyzed progress. At the same time—and unfortunately—migration policy is also an area where the EU itself contributes to the erosion of liberal democracy, as it fails to uphold the rule of law in its treatment of migrants.