This chapter argues that restrictions of migrants’ rights should be analyzed in a broader pattern, in light of democratic decay as it coincides with restrictive policies towards asylum seekers. In the event of a populist party taking over all the state institutions, as happened in Poland, migrants' rights cannot be considered in separation from the protection of human rights in general. Analyzing the Polish experience, it becomes apparent that the breakdown of the constitutional rights system results in a decrease in migrants' rights protection just as it does for other social groups. When it comes to the potential and limits of legal resilience in the migration context, the chapter claims that there is no such thing as inherent resistance of the law. The law cannot defend itself, since it is a tool of the ruling politicians. This means that a change in the approach to migration law in Poland is inevitably combined with a change in those who hold power. Therefore, what we are dealing with is not primarily a legal, but rather a political problem, which may be overcome not by legal means (the law itself), but by the will of the people expressed at elections.

This chapter investigates the role of ‘crisis’ narratives in the incremental undermining of migrants’ rights. It argues that the right-wing populist politics of Sweden Democrats, not least in their narrative of migration as a ‘crisis’, have had a considerable impact on migration discourse and policy in Sweden. As radical-right ideas have become normalized, limitations on migrant rights appear to be regarded as much less problematic by mainstream political parties. At the same time, the Swedish constitutional system promotes a set of core values that, taken together, provide for legal resilience. Although there are weaknesses built into the system, such as the relatively limited system of judicial review and the limited scope of fundamental rights included in the Constitution, core values such as independence of the administration and transparency of the legislative process are powerful tools to prevent anti-democratic and anti-pluralist parties from pushing through their ideas. It is thus suggested that the inherent inertia of the administrative system and the legislative process is a key element of legal resilience against rights erosion, for migrants as well as for other vulnerable groups.

This chapter aims to offer insights into the wider implications for the rule of law, including for the EU constitutional order, of the restrictions of migrants’ and asylum-seeker’ rights that follow from systematic noncompliance with the Common European Asylum System (CEAS) by certain Member States. It asks: Has the migration and asylum crisis developed into an EU constitutional crisis? There is a growing body of literature about the constitutional crisis of the EU. A rich debate also exists as to the failures of the CEAS. The chapter brings these two into conversation to demonstrate that migration governance plays a constitutive role for the EU. If the EU fails to treat the migration crisis as an EU constitutional crisis, it might risk disintegration and return to the national. This would take the evolution of the European project further away from its telos.

The Introduction contextualizes the volume’s objectives, introduces its research questions and defines basic terms. A starting point is the finding in the literature that migration is ’merely’ one of several contributing factors to democratic decay, in the sense that (authoritarian) populists have seized on the ‘migration crisis’ to further undermine constitutional democracy. Yet, in our estimation the relationship between the three forces that reside at the core of this volume – populism, democratic decay and migration – is more multifaceted and complex. After engaging with this relationship, the Introduction examines avenues for legal resilience against (authoritarian) populism. By drawing inspiration from the scholarship on environmental law, a definition of legal resilience is proposed, on the basis of which a two-stage analysis is developed to evaluate the possibilities and limitations of legal resilience against (overly) restrictive migration laws and policy. In a first stage, it should be determined how resilient the legal system itself has been in the face of populist onslaught. In the second stage, once we know how resilient the legal system as a whole has proven to be, we can identify the extent to which it provides for legal resilience against restrictive migration laws and policies.

This chapter asks how ageing populations in EU Member States will affect the making of migration and asylum law. It tests the hypothesis that asylum and immigration law and policy in European states may become increasingly exclusionary towards large groups of immigrants due to its being interlocked in a vicious circle of economic and political consequences of population ageing. The interposition of law with democracy, demography and economic growth, is at the core of the argument that the restriction of migrants’ rights is but a symptom of this vicious circle, as ageing European societies undermine their own resource base for achieving economically tenable, politically stable and sufficiently egalitarian communities. By itself, the chapter posits, the law cannot provide for resilience against restrictive migration policies, given this context. While the law is a useful tool in single cases and the short term, it emerges from the same foundational assumptions that lie behind a long-term and amplifying trend of restrictionist politics.

This chapter analyzes the lasting impact of the 2017/2019 government coalition in Austria on the state of refugee rights. It investigates to what extent the migration policies and legal initiatives by the ÖVP-FPÖ government feature elements of democratic decay and populism. The chapter evaluates what constitutional law has done, can do and could do to keep in check, prevent and remedy such restrictions. It examines, in particular, how human rights guaranteed by the Austrian Constitution and interpreted by the Constitutional Court could provide relief. It is further suggested that a strong legal culture and support for the constitution are vital. In Austria this support is ensured by the most fundamental principles of constitutional law, which provides for a strong arsenal of legal resilience.

This chapter argues that in order to understand the linkages between populism and restrictions of migrants’ rights, more awareness is needed of the distinction between empirical facts and institutional facts. If the distinction is disregarded, negative consequences can follow. The chapter explains that mobility – the movement of bodies through space – is the empirical fact to which the law attaches a series of legal concepts by way of institutional facts (e.g. citizenship, residence, population, and migration). The chapter demonstrates that, once aware of the distinction, we are better equipped to see how legal regulations governing the institutional fact of population affect our social and constitutional identity. Migration law and policy ultimately impact on the composition of the institutional fact of the People (those who count as citizens) and its role in the constitutional order (what the citizens do, which rights and duties they have), that determines the state’s constitutional identity. Therefore, as this chapter argues, migration law can be employed to both strengthen and dismantle constitutional democratic institutions. Migration lawyers thus have much to offer to constitutional lawyers who are concerned about the contemporary resilience of the constitutional setting.

This chapter locates Orbanian discourse and measures on migration in a Schmittian paradigm. The theory of Carl Schmitt helps us make sense of Hungarian constitutional developments, because Orbán has continuously concentrated on the political friend and foe to maintain a permanent ‘crisis’ situation. The chapter shows how Orbán’s authoritarian goals have determined the management of regular migration and the control of irregular migration and especially asylum. Most rules applicable during the fictitious ‘state of crisis caused by mass immigration’ in Hungary contradict EU law and breach international asylum law. The chapter argues that the ‘external constraining force’ of the EU is nevertheless relevant both in the context of migration and for the possibilities of democratic resistance. The chapter finds potential for legal resilience on the international and EU level, whereas domestically techniques of democratic resistance developed during feudalism (e.g., the tradition of free cities or ‘passive resistance’) and socialism (e.g., samizdat) can be mixed with those based on the leftovers of the rule of law regime.

This chapter focuses on the link between the rule of law and migration in the poisonous context of democratic decay and rule of law backsliding in the EU. The analysis draws on the Hungarian case study, where overall institutional changes introduced since 2010 have led to the establishment of a regime described as ‘illiberal’ and as ‘authoritarian’. The chapter argues that Hungarian asylum policy is essentially designed with one key goal in mind: to deprive people of the right to seek asylum in breach of the international obligations of Hungary and of EU law. This is a direct result of a broader process of rule of law backsliding. The Hungarian case study proves that unresolved issues of rule of law backsliding in some EU Member States affects both the practical implementation of EU basic values (e.g., solidarity) and the proper functioning of EU policies (e.g., asylum policy). The chapter’s conclusion is that the rule of law is not secured sufficiently, either in the EU or by the EU, causing all concerned to lose face.