This chapter transects and articulates different disciplines and lines of thought in order to understand what the redefinitions of the boundaries of political power in times of COVID-19 are, and which practices may outlive the potential normalisation of the crisis, even after vaccines are developed and distributed widely. While referring to the habitus inspired by Bourdieu and paying specific attention to legal practices, it reinforces an articulation that is often missing in strictly Foucauldian approaches between a reflection in terms of governmentality and an analysis of practices of bureaucratic fields. At the core of the discussion on the impact of COVID-19 on freedom, security and democracy lies the question of the type of politics that most states have pursued to generate compliance. This might be obedience and resistance, which involves the introduction of emergency public health policies that, while being different from each other in certain aspects, have been driven more by nationalistic agendas than by a common analysis of the pandemic itself. Based on this politics of obedience and resistance, we claim that the governments from differing parts of the political spectrum under examination here (EU countries, the UK, and Turkey) have tried to convince their populations that pandemic emergency measures are for their own good, by playing on their unease. It is neither a politics of protection led by care, nor a politics of fear and terror implying coercion, nudging and developing an illiberal regime. Rather, it is an original form of governmentality by unease (Bigo, 2002) that creates illiberal practices inside liberal regimes while operating on the basis of personal choices, bureaucratic fights and territorialised forms of modern state sovereignty. Even in Turkey, this form of governmentality respects formal representative democracy. But the fundamental freedoms and basic principle of the rule of law are subverted by the development of horizontalised suspicion that fosters the use of technologies of surveillance and digital predictive analytics. We may not be sleepwalking into an Orwellian society. Nevertheless, a liquid type of surveillance, that is peer- to- peer – DIY surveillance to quote Zygmunt Bauman (Bauman and Lyon, 2013) – is propagated in the name of protection of the self and the others.

ABSTRACT

INTRODUCTION

There has been much discussion of rights restrictions in response to the COVID-19 pandemic – movement, education, health care – and the list goes on. This contribution highlights the effect of COVID-19 measures on those whose access to rights is precarious. During the pandemic, some European Union Member States (EUMSs) differentiated among groups of persons based on their immigration status to limit their obligations towards certain ‘categories’ of individuals found on their territory. This rights limitation is in stark contrast to the commitments EUMSs (and the European Union (EU, the Union)) made by voting for two Compacts that are founded on existing refugee and human rights obligations.

This chapter takes as its point of departure Objective 20 of the UN Global Compact on Migration to promote faster, safer, and cheaper transfer of remittances and foster financial inclusion of migrants. In order to achieve this objective, signatory states are called upon to facilitate remittance infrastructures and see to it that measures to combat illicit financial flows and money laundering do not impede migrant remittances through undue, excessive, or discriminatory policies. The objective also calls for accessing payment system infrastructure, such as bank accounts. While propagating financial inclusion the UN also has a strong impact on financial exclusion of migrants through its instruments against money laundering and terrorist financing. This dichotomy is echoed by the European Union when it comes to the implementation of the right of access to a payment account, also for migrants, acknowledged in Directive 2014/92. At the same time banks are asked to prevent money laundering in Directive 2015/849. The result of this dichotomy is undue, excessive, and discriminatory policies and practices on the ground, discussed in this chapter specifically for the UK and the Netherlands.

The EU has adopted several legal instruments on immigration, asylum and borders. This legislation regulates many important aspects of these matters, including the way that Member States use detention in the context of the enforcement of their immigration and asylum laws. The right to liberty under Article 6 of the Charter applies to deprivations of liberty ordered in connection with a Member State’s implementation of EU law. Though EU-level regulation of detention is relatively recent, the CJEU has had several opportunities to elaborate on the content of the right to liberty in this context. This chapter examines how the CJEU has grappled with the competing interests of safeguarding the right to liberty and ensuring an effective system for immigration, asylum and borders in the EU. In so doing, it compares and contrasts the CJEU’s approach with the right to liberty under Article 5 of the European Convention on Human Rights and the related case law of the European Court of Human Rights. The chapter concludes that, though the CJEU does in many cases keep its case law in line with that of the ECtHR, a distinct, EU-specific jurisprudence on the right to liberty is beginning to emerge.

ABSTRACT

The right to leave a country is enshrined in both international human rights law and its European counterpart. It is a right which is independent and does not require the individual exercising it to show that he or she is admissible in some other country. It is exercisable even in the absence of evidence of possible admission to a destination country. However, in Europe (and some other parts of the world) some states are seeking to encourage their neighbours to interfere with people‘s right to leave a country on the grounds that these European states fear that people want to come to their borders. This article examines the right to leave a state from the perspective of international and European human rights law and questions the legality of various efforts to make it dependent on a right of entry to another country.

INTRODUCTION

Human rights law instruments enshrine the right to leave any country, including one‘s own. Article 13(2) of the Universal Declaration of Human Rights contains the first expression of the right. Article 12(2) of the International Covenant on Civil and Political Rights (ICCPR) is the global legally binding instrument enshrining the right to leave. At European level, Article 2(2) of Protocol 4 to the European Convention on Human Rights (ECHR) also expresses this right. The right to leave any country has not gained much attention; neither has it been an object of frequent invocations. However, in light of the current situation where in practice many people are contained in countries of origin and transit, the importance of this right needs to be explained and the challenges to its application clarified.

Historically, the right to leave was included in the catalogue of rights for the purpose of targeting and critiquing the countries on the east side of the Berlin Wall and their restrictions on external mobility. In this context, the right to leave was considered a key indicator of the democratic foundations of states. Reflective of this historical background, the Human Rights Committee General Comment No. 27 on Freedom of Movement, issued ten years after the fall of the Berlin Wall, is framed predominantly from the perspective of countries of departure.

Introduction

The European Union's new constitutional framework, the ‘Treaty of Lisbon’, entered into force on 1 December 2009 after ten frustrating years of negotiation and debate. The Treaty makes deep and lasting changes to the way the EU operates and its approach to fundamental rights. Among the modifications introduced, the new legal framework has major consequences for immigration and asylum law and policy.

Fast on the heels of the Lisbon Treaty came the Stockholm Programme, which sets out medium-term priorities for the EU in the area of freedom, security and justice. This is the policy field where immigration lies as well. The current chapter examines the significance of the Lisbon Treaty for EU immigration law and policy. In short, it makes two observations regarding the Treaty's impact:

– The Lisbon Treaty lifts the limitation on access to the European Court of Justice by all levels of national courts for disputes related to borders, immigration and asylum. This will dramatically accelerate the harmonising effect of EU law in this field.

– The Treaty gives legal force to the Charter on Fundamental Rights. This will be felt quickly in the area of immigration if the experience of the European Court of Human Rights is any indication. Already, human and fundamental rights have become a source of friction between member states and third-country nationals (i.e. nationals of states outside the EU) in conflicts extending beyond the national courts of member states.

The Lisbon Treaty's impact on immigration policy is likely to be greatest in areas that are sensitive in member states due to sovereignty concerns. This means that the ‘front-page’ effect of EU immigration law is not likely to diminish in the coming years.

The Lisbon Treaty and powers in respect to immigration

The Lisbon Treaty is composed of two treaties (and their protocols and declarations). The first is the new Treaty on the European Union (TEU), which establishes the central provisions for the structure of the European Union and contains the rules about how the EU operates. The TEU will be important when the position of the Charter of Fundamental Rights in EU immigration is discussed. The other treaty that is part of the package is the Treaty on the Functioning of the European Union (TFEU).

The visible state

Refugee protection forms a small but troublesome part of a wider picture within which the international community deals with the consequences of conflict. Refugees trigger states' duty to provide international protection for those whose states of nationality are unable or unwilling to protect them. The duty comes into existence when there is a serious risk of persecution or torture which are often a by-product of conflict within states and/or among them. The sovereign interstate system, represented by the United Nations, is based on the visibility of the state alone as the actor on that stage. The recognition of Kosovo as a state in March 2008 by a number of European states to the chagrin of Serbia and the Russian Federation's decision in August 2008 to recognise South Ossetia in spite of Georgian resistance are only some examples of the political contestation which surrounds efforts to acquire that visibility and in so doing, sovereignty. They also exemplify the conflict which may surround visibility struggles as the fact of recognition by some states does not necessarily result in sovereignty. If most of the world refuses to recognise a territory as a state, such as has happened in respect of Northern Cyprus, then the territory does not acquire sovereignty within the state system. However, once accepted into the interstate system, the state is entitled to enjoy equality with other states within the international community.

The starting place is the principle that all states are equally sovereign.