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.

In this final chapter, we revisit some of the central tensions that run through the whole book and ask ourselves the question: what is the future of the EU? And what is the role of law and politics in its governance? We will start by examining the main routes by which reform of the EU order occurs, beginning with formal Treaty change before discussing 'integration through stealth' and 'dis-integration'. In the remainder of the chapter, will discuss four key choices facing the EU in the near future: substantive choices (over which policies to prioritise), political choices (over how to respond to populism and contestation), constitutional choices (about how autonomous the legal order should be) and global choices (regarding how Europe should define itself in the wider world). The concluding chapter is meant to guide an advanced discussion on what the EU can and should like in the medium-term future.

The chapter begins by examining why the EU regulates, beginning with how the EU attempts to justify its regulatory power before exploring the main principles underlying EU regulation. We will then focus on who regulates in the EU, that is, the institutions, such as agencies and committees, that assist the EU in achieving its regulatory goals. The remaining sections will focus on the questions of how the EU regulates, distinguishing between the main legal and non-legal tools by which the EU regulates, and the judicial routes available to enforce or challenge the validity of such regulatory choices. Throughout, the focus will lie on the tension between efficiency and diversity that drives EU regulatory choices.