This chapter investigates how the challenging questions and tensions caused by migrants and their universalist claims for inclusion, have been approached and resolved in liberal democracies. By regarding the development of populism as a real and dangerous political phenomenon that has significant traction, the chapter asks whether populism adds something new to this approach and resolution. More specifically, does populism add some distinctiveness that we should be more sensitive to? With reference to the requirement that the state has to provide justifications for measures that affect individuals, the chapter asks how the tensions between exclusion versus inclusion and particularism versus cosmopolitanism, have been adjusted. It concludes that the adjustment has been in favour of exclusion and particularism. The concern that arises is that populism might further shape this adjustment to the point where the balance is completely tipped in favour of exclusion and statism. This raises general concerns about the nature of the community and its organizing liberal values.

This chapter argues that the particular variety of populism in effect in Italy that has been labelled PopSovism is interesting to comparative lawyers for many reasons. The chapter explains that in the Italian case, restrictions of migrants’ rights represent a form of democratic decay in populist time. This phenomenon was particularly evident during the first Conte government, when Italy became the first European country in which two self-styled populist forces formed a coalition government, but its roots can be found even earlier. Italian populism has ancient roots and restrictions of migrants’ rights preceded and continued after the populist wave. At the same time, the nativist approach to migrants should not be seen as the only manifestation of democratic decay in Italy, which is broader in nature. As a consequence, resilience through legislative reforms is not likely to be forthcoming. More success can be expected if resilience is pursued through judicial remedies both at national and international level.

This chapter argues that an inability to provide for legal resilience against restrictive migration laws and policies should not be understood as ‘merely’ a failure of ECHR, EU and constitutional law. Instead, the problem runs much deeper than the country studies seem to suggest. It is claimed that the problem resides in the very legal infrastructure used to further policy goals aimed at limiting migration: administrative law. Administrative law is distinctively well-suited to produce restrictive migration laws, whether enacted by populist or mainstream parties. In an important sense, the three types of legal resilience identified in most country studies – judicial interventions by the ECtHR, CJEU and constitutional courts – signal and legitimize the lack of legal resilience within administrative law itself. Resilience against restrictive migration laws will remain marginal and incidental, the chapter concludes, as long as the legal profession fails to critically examine and challenge the basic features of the legal infrastructure underpinning migration policies: administrative law.

This chapter adopts a two-stage analysis of legal resilience against far-reaching restrictions of migrants’ rights. It first investigates the resilience of the Belgian constitutional system against potential hostile take-over by right-wing populists. It is concluded that the constitutional framework provides relatively robust protection against democratic decay, as a result of which the separation of powers remains intact. At the same time, most constitutional safeguards that prevent a hypothetical slide towards authoritarianism in Belgium only provide weak constraints against the very real and systematic undermining of migrants’ rights. Therefore, during the second stage of the analysis an assessment is made of the room for legal resilience in Belgium. Unlike in Poland and Hungary, it is shown, civil society actors have been able – and often forced – to resort to the independent courts in a bid to safeguard migrants’ rights in Belgium. In practice, the chapter concludes, this has led to mixed results, in that courts have only safeguarded minimal respect for migrants’ rights rather than adopting a maximalist interpretation. The room for legal resilience against restrictive migration laws and policies in Belgium thus remains more limited than could be expected.

This chapter interrogates European law as actively contributing to the undermining of migrants’ rights, since its inception. It claims that European case law in the area of migration is a continuation of a pre-existing characteristic: the tendency to privilege the interests of European states over those of migrants and of Europeans with transnational ties. The chapter thus examines the hypothesis that current-day migrants, being people from former European colonies, are subjected to a split form of legality that was perfected at the end of the colonial era. The legal system maintains the pretence of equality before the law while at the same time relegating colonial subjects to sub-standard legal protection by either excluding them from the application of human rights standards altogether or by lowering these standards. In addition to these two elements, a third legal governance technique with its origins in colonialism is the use of emergency powers themselves. Coloniality thus remains a structuring element of human rights law as it responds to migration. Naming and exposing this colonial structure may be helpful to the extent that it makes a legal and political critique possible, in addition to helping actors to navigate the field.

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 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.