From individual to migration flow: the European Union’s management approach and the rule of law

Over the years migration management has become - at least on paper - the leading paradigm for national and supra-national immigration policies (Geiger and Pécoud, 2010, pp. 1-3). With the entering into force of the Lisbon Treaty, the concept even gained official legal status in the European Union (EU) as it is now incorporated in the EU’s Treaty on the Functioning of the EU. In effect, the EU undertakes to develop a common immigration policy aimed at ensuring ‘the efficient management of migration flows’ (European Union, 2010, Art. 79). In a way, this is precisely what many experts of migration policy and law have been calling for (Aleinikoff, 2003; Ghosh, 2000, 2007; IOM, 2004; Veenkamp et al., 2003). By the same token, recent critical scholarship has identified many issues associated with the discourse, actors and practices of migration management, for example, extra-territorialization, failing protection of human rights, seemingly apolitical and technical nature of migration management (Geiger and Pécoud, 2010; Inder, 2010; Kasparek, 2010; Walters, 2010). In line with these concerns, this chapter examines the uneasy relationship between EU’s migration management paradigm and the rule of law. While it is an inquiry from the perspective of legal theory, it may shed some light on the "deeper causes" behind the issues that are also raised by scholars of immigration policy from the other academic disciplines. Particularly our understanding of the seemingly technical and political-neutral nature of migration management may benefit from this exploration.