The Hidden Virtues of Discretionary Power in European Migration Law.

Format:

Book

Author/Creator:

Bornemann, Jonas.

Series:

Modern Studies in European Law Series

Language:

English

Physical Description:

1 online resource (193 pages)

Edition:

1st ed.

Place of Publication:

Oxford : Bloomsbury Publishing Plc, 2026.

Summary:

This book explores discretionary decision-making in migration systems in Europe.It investigates how European law influences the existence, exercise and effects of discretion.

Contents:

Cover

Title Page

Copyright

Dedication

Acknowledgements

Table of Contents

List of Abbreviations

List of Primary Sources

Case Law

1. Discretion in European Migration Law: Misfit, Necessity, Virtue?

I. Discretion and Its Critiques

II. European Migration Law: The Last Stronghold of Vast Discretionary Power?

A. Defining Discretion as a Targeted Legal Phenomenon

B. Of Relics and Revivals: Discretionary Power in European Migration Law

C. Beyond Sovereign Choice: Explaining the Prominence of Migration Discretion

III. Discretion and Tempered Executive Dominance: The Transformation of Discretionary Power

IV. Discretionary Power and the Legal Position of Migrants

A. Legitimate Interests of Migrants

B. Relative Improvements for Migrants

V. Methodology and Research Design

A. Deductive Reasoning

B. Course of Investigation

2. Discretion: A Conceptual Approximation

I. Legal Theory on Discretion

A. Discretion as (Un)fettered Choice

i. The Residual Thesis

ii. The Original Thesis

B. Discretion, Delegation and the Relative Authority of Executives

C. Discretion, Legality and Judicial Review

D. Conceptual Allocation of Discretion in the Decision-Making Process

E. Interim Conclusion

II. Traditions of Discretion in European Administrative Law

A. Deliberative Autonomy

i. Discretiophobia or Discretiophoria?

ii. Types of Deliberations and Normative Allocations of Discretion

B. Manifestations in Law

C. Limited Judicial Review

i. Varying Degrees of Reduced Intensity Review

ii. Other Mechanisms Precluding Full Judicial Review

iii. Limited Review: What Is In a Name?

III. A Framework Definition of Discretionary Power

3. Discretion in European Migration Law: Persistence and Targeted Consolidation.

I. Discretion to Accommodate European Individualisation Requirements

A. Fundamental Rights-based Origin of Individualisation Requirements

B. Individualised Decision-Making and Administrative Autonomy

i. A Safeguard of Administrative Autonomy

ii. National Lawmakers and European Individualisation Requirements

C. Individualised Assessments and Discretionary Power: Two of a Kind?

i. Implications for the Intensity of Review

ii. Proliferation of Discretion as a Means to Allow for Administrative Autonomy

II. EU Migration Law's Vested Interest in Discretion

A. The Reproduction of an EU-level Tradition of Discretion in National Administrative Contexts

i. Affirmations of Wide 'Discretion' in the Jurisprudence of the ECJ

ii. Complexity as a Functional Reason Underpinning Discretion'

B. Wide Discretion to Safeguard Public Order and Security

C. Abandoning Conceptual Pluralism? Limited Judicial Review Prescribed

i. De-Judicialisation by Judicial Means?

ii. Effective Remedy and the Preclusion of Uncontrolled Discretion

III. Discretion as a Compensation Valve for Dysfunctional Transnational Administrative Systems

A. The Dublin Discretionary Clause

i. Devolvement to Administrative Bodies

ii. Devolvement and Discretion

B. Dublin Discretion and Makeshift Crisis Responses

i. Suspending Dublin by Exercising the Discretionary Clause?

ii. Ad Hoc Solidarity: The Malta Declaration of 2019

IV. European Standards Precluding Discretionary Power

A. Discretion and Asylum Decision-making: A Mismatch?

i. Safeguards of Administrative Autonomy in Asylum Law: Impartiality and Objectivity

ii. Full and Ex Nunc Review

B. The Preclusion of Discretion as a Judicial Strategy?

i. Judicial Refutation of Deliberate Misconstructions of Discretion in Asylum Law.

ii. Precluding Discretion in the Name of Migrants' Fundamental Rights: The Case of Return Detention

V. Interim Conclusion: A Targeted Consolidation of Discretion

4. The Transformation of the Exercise of Discretion

I. From Sovereign Power to Limited Administrative Autonomy and Back: Coming Full Circle?

A. Unfettered Discretion as an Administrative Anomality

B. Sovereign Choice and Absolute Discretion: Walking a Thin Line

II. The Exercise of Discretion as Legally Instructed Decision-Making Freedom

A. The Duty of Care and the Autonomous Appraisal of Relevance and Fact

B. The Exercise of Discretion as Weighing of Competing Interests

III. Transnational Effects of the Exercise of Discretion

A. Solidarity and the Exercise of Discretion in Make-Shift Crisis Responses?

B. Mechanisms to Mitigate Adverse Transnational Effects

i. Transnational Cooperation Mechanisms: A Practical Necessity of Coordinated Exercise of Discretion?

ii. Duty of Care in the Exercise of Discretion in Transnational Administrative Systems

C. Politicisation of the Exercise of Discretion in European Migration Law

IV. Interim Conclusion: Discretion as a Sophisticated Mode of Decision-Making

5. Discretion and the Legal Position of Migrants

I. Between Executive Domination and Individual Protection

A. Of Outsiders and Insiders: Discretion as a Mediator for Belonging

B. Discretion and the Termination of Stay: Security and Securitisation

II. Discretion and Individual Rights of Migrants: An Uneasy Relationship?

III. Open-Ended Deliberation as Relative Improvement

A. Discretion as an Avenue of Individualised Justice

B. Swaying Administrators in Their Exercise of Discretion

IV. Virtues and Potentials of Legally Instructed Choice

A. Towards a Migrant-Focused Exercise of Discretion?.

B. Participatory Elements in the Exercise of Discretion?

V. Protection Through External Control

A. Availability of Judicial Protection

B. Limited Review and Migrants' Chances of Success

VI. Interim Conclusion: Virtues of Diligently Exercised Discretion

6. Conclusion: The Hidden Virtues of Discretion in European Migration Law

I. Discretion as a Tool to Process the Influences of a Multi-Levelled Legal System

A. Reasons Underpinning the Targeted Consolidation of Discretion

B. Pluralism and a European Vested Interest in Discretion

II. Discretion as a Guarantee of Administrative Flexibility

III. Discretion and Relative Improvements of Migrants' Legal Position

IV. Discretion and its Hidden Virtues

Bibliography

Index.

Notes:

Description based on publisher supplied metadata and other sources.

ISBN:

1-5099-8420-8

1-5099-8418-6

OCLC:

1583180480