In the framework of the Natolin Neighbourhood Days 2019: The Many Faces of Migration Governance in Today’s EU and its Neighbourhood, the Natolin Academy of Migration at the European Neighbourhood Policy Chair organized a round-table debate with Dr Mariagiula GIUFFRÉ, Senior Lecturer in Law at the Department of Law and Criminology, Edge Hill University (UK), Senior Research Associate to the Refugee Law Initiative, School of Advanced Study, University of London; and Dr Iside GJERGJI, Senior Researcher at Centre for Social Studies, University of Coimbra.
The debate under the title: "Is soft law really the solution to manage migration?" started with presentations by Dr GJERGJ and Dr GIUFFRÉ.
Dr Iside GJERGJ gave a presentation entitled: "On infra-law and migration: How legislation failed to regulate foreigners’ status in Italy?"
Access to social and legal citizenship has always been limited to foreigners in Italy. Over time, immigration laws — from the founding of the Italian state to the present day — have been characterized by a (fluctuating) denial of rights (social, political and of freedom). But it is unknown to many that — however non-inclusive — often such laws even fail to define and regulate foreigners’ status. This is indeed increasingly less defined by laws and more by administrative circular letters (especially those issued by Government departments) — hence non-recognized and non-legitimate sources of law, i.e. something quite different from the modern (national and European) "soft law". Circular letters are, in general, administrative acts characterised by informality, limited temporal validity, lack of political mediation and (very often) secrecy. They are usually issued by heads of departments containing instructions or orders for subordinates, explaining them how to implement laws or how to deal with foreigners… very often being in conflict with the legislation in force. The use of such administrative (and non-transparent) acts is so widespread in the country that it has led to what we can call: the phenomenon of governance through circular letters or infra-law governance of migration.
It is useful to dwell on this aspect, as it can illustrate the way in which Italian authorities have concretely conceived migration governance over decades. In other words, it can reveal where and how migrants are positioned in the Italian social and legal hierarchy. At the same time, the analysis of circular letters on migration could raise important questions about the contemporary democratic system, such as: how can a system that defines migrants’ social and legal status through arbitrary acts still be defined as democratic?
Dr Mariagiulia GIUFFRÉ gave a presentation entitled: "The interplay between readmission and refugees' access to protection in Europe: The impact of informalization".
The presentation aimed to analyse whether and to what extent the implementation of informal readmission agreements may hamper refugees’ access to protection, thereby pulling together areas of law and policy that are generally considered neatly distinct, and therefore unrelated also in a temporal sense. Particularly in situations of informal border controls or massive arrivals of migrants and refugees, there exists a risk for asylum seekers, who have transited through ‘safe third countries’, to be removed by means of a readmission agreement. Refoulement can thus occur as a consequence of accelerated transfer mechanisms jeopardizing the right to access both asylum procedures and effective remedies before removal. Taking EU and interstate agreements as case studies, Dr GIUFFRÉ explored the potential impact informalization might have on refugee rights. Indeed, legal uncertainty because of the lack of sufficient procedural guarantees, transparency, and democratic oversight risks depriving individuals of the possibility to enforce their rights.
About the speakers:
Iside GJERGJI is a Senior Researcher at CES (Centre for Social Studies – University of Coimbra). In April 2004, she got her PhD position in Sociology of Migration and Cultures at the University of Salento (Italy), after a degree in Law at the University of Bari (Italy). In May 2008 she discussed her PhD thesis on "Administrative circular letters as instrument of governance for migratory movements in Italy: a sociological analysis". She is a Lecturer at Stanford University and coordinates the Laboratory on Asylum of the MA course "Immigration and Transformation of Society" at the Ca’ Foscari University of Venice (Italy). She has studied various aspects of the migration phenomenon in Europe, social movements in North Africa (after the 2011 uprisings) and labour issues. She has been invited to deliver numerous keynote addresses nationally and internationally and worked also as criminal lawyer, consultant and senior expert for different Italian Regional Governments.
Mariagiulia GIUFFRÉ (PhD, LLM) is a Senior Lecturer in Law at the Department of Law and Criminology, Edge Hill University (UK), a Senior Research Associate to the Refugee Law Initiative (RLI), School of Advanced Study, University of London, Fellow of the Higher Education Academy, and a member of ASGI (Italian Association for Juridical Studies on Immigration). Over the last years, she has been a Guest Lecturer in a number of universities in the UK and abroad, and a Research Fellow at the Refugee Studies Centre, University of Oxford, the Faculty of Law at Lund University, and at the Centre of Migration Law at the Radboud University of Nijmegen. Mariagiulia has been consulted as a legal analyst by a number of law firms and EU bodies to write expert reports on extradition and the law and practice of Search and Rescue (SAR) at sea. She has served as an Intern at the Italian Consulate in London, and has both volunteered and worked as a consultant for human rights NGOs. While her forthcoming monograph is on the "Readmission of Asylum Seekers under International Law" (Hart Publishing, forthcoming), her current research focuses on externalization of migration controls and State responsibility.