Addressing a Crisis through Law: EU Emergency Legislation and its Limits in the Field of Asylum

Abstract

The Common European Asylum System (CEAS) has been in a situation of protracted crisis. This has hampered its process of reform and has urged the European Commission to launch a new Pact on Migration and Asylum, in order to offer a ‘fresh start’ to ‘build a system that manages and normalises migration for the long term.’ While an emergency-driven approach has surfaced as a mandatory route for the future of the CEAS, what does constitute a situation of emergency in EU asylum law? In an attempt to unpack the evolution and understanding of the concept of ‘emergency’ in EU asylum law, the paper argues that the parameters to determine the existence of a situation of emergency have been politically controversial and purposefully left open-ended. This has consequences at the level of EU legislative responses. In particular, the paper will illustrate the potential and limits of the EU emergency legislation in the field of asylum and aims to explain how this legislation impacts both the ordinary legislation at the regulatory level as well as the legislative autonomy of the Member States in situations of emergency. Ultimately, the paper discusses whether the recently proposed legislative instruments, which are designed to address situations of crisis in the field of asylum, are well suited for this role.