Between "Administrative Mindset" and "Constitutional Imagination" : The Role of the Court of Justice in Immigration, Asylum and Border Control Policy

Abstract

The Court of Justice is a central actor. It is the subject of many studies, most of which concentrate on the internal market or citizenship. By contrast, the role of judges in migration law is rarely discussed, although the policy field is politically contested and features prominently in recent case law. That is why this contribution takes a bird’s eye view of the role of the ECJ in that domain. It critically assesses a concern about “judicial passivism” among academic observers and demonstrates that there are good constitutional reasons why judges act carefully in migratory matters. Closer inspection of several dozen prominent judgments on migration shows that most of them are defined by an “administrative mindset”: they focus on statutory interpretation and seek to realise the position of the legislature. Any move towards a more ambitious “constitutional imagination” would require feedback loops between legal developments, political processes and broader societal debates.