chapter  7
30 Pages

Institutional proposal: testing the proportionality of exclusion

This book started by labeling current immigration policy as a legal problem. The authorities exclude normal migrants without giving them proper justifi cation. Next we tried to show that this practice is untenable from a legal perspective. Instead, the authorities have a duty to justify, and this is not only a moral duty but also a legal one. Moreover, arguments from ethics of migration showed that the authorities should carry the fi rst burden of justifi cation. If our arguments in the previous chapters are sound it seems that we have accomplished our mission stated in the beginning of this book: challenging the current situation (illegality of admission laws) and calling for a change (fi xing a new default position). Yet, these arguments from positive law, legal theory and political philosophy all have practical pretensions in the sense that they are reasons for action. But ‘ought’ implies ‘can’. If at the outset the suggestions for change have no chance of success, they may cease to constitute solid reasons for action. In other words, one way or another the feasibility of the call for change must be made plausible. One aspect of feasibility is institutional fi t. So we should be looking for a realistic institutional arrangement that organizes the justifi cation of exclusion and puts the fi rst burden of justifi cation on the authorities. To this end we will consider a Draft directive proposed by experts of European immigration law. The strength of the proposal is that it organizes a new default position while remaining faithful to the existing form and content of European legal tradition and practice. The only weakness of the proposal is its legal foundation. The drafters located the legal basis in the fundamental liberty of everyone to move, i.e. the right to free movement. The problem, of course, is that under positive law this right does not exist. This means that the directive – if adopted – would introduce a new basic right for everyone. From the perspective of EU institutional law, such a new right would probably require an amendment to the EU Treaties, which from an electoral-political perspective is unfeasible. So this chapter mainly concentrates on fi nding an adequate legal basis for the directive without the need to amend the Treaties. The thrust of the argument is that (contrary to free movement) the principle of proportionality is already a core element of the rule of law and legal practice. The Draft directive is ‘just’ rendering explicit that the test of proportionality is to be applied to all cases where authorities directly affect the

legitimate interests of individuals. Again the challenge is to make legal change, not legal revolution.