Title: Nationale bijkomende beschermingsstatuten voor vreemdelingen: nood aan verdere EU-harmonisatie en/of versterking op nationaal niveau?
Other Titles: National additional protection statuses for foreigners: is there a need for further EU harmonisation and/or strengthening of the national level?
Authors: Maes, Marleen; R0290336;
Issue Date: 23-Dec-2014
Abstract: The PhD dissertation will focus on the practice of EU harmonized and non-EU harmonized protection statuses in Belgium. It will describe, in a first general chapter, what is meant by “additional” protection as well as what is meant by “protection”. The protection of foreign nationals in the form of granting residence status such as asylum has evolved beyond the UN Refugee Convention. Where before protection was only granted to foreign nationals fleeing persecution in their country of origin, States have been confronted with new protection needs, for instance with regard to unaccompanied minors, victims of human trafficking, stateless persons, non-removable foreign nationals, foreign nationals fleeing armed conflicts, climate refugees, etc. These new protection needs cannot be addressed through the application of the UN Refugee Convention. Therefore, in a second chapter, an analysis is given of how international treaties, human rights and case law of supervisory human rights bodies, such as the ECtHR, have provided international minimum standards for further protection. These international minimum standards address additional and new protection needs by laying down a prohibition on expulsion to the country of origin, for instance by widening the scope of the non-refoulement principle with regard to seriously ill foreign nationals who cannot return to their country of origin. They also set minimum standards for the wider content of protection given to foreign nationals and for securing an effective access to protection. National courts have further developed and broadened this case law, for example through constitutional rights, such as the right to decent living conditions (human dignity) in the case of non-removable foreign nationals. By now, several States have integrated the consequences of this case law into their internal legislation and practices. New standards of protection were implemented through, among others, improvement of the procedures and the introduction of new statuses. These developments, however, occurred in parallel with increasing tensions between, on the one hand, the prerogatives of States to keep control over migration fluxes and, on the other hand, the increasing concern for safeguarding the fundamental rights of individual migrants and undocumented people. Some of these (newly introduced) national protective statuses have been harmonized at EU level (even if on a minimal basis). A third chapter analyses four such statuses that been have introduced: an EU harmonized refugee status, a subsidiary protection status, a temporary proteciton status and a mechanism of protection for victims of human trafficking. It also identifies other protection needs that are only partly and in a very limited way addresses by EU legislation. In a fourth chapter, the theoretical analysis will be confronted with the actual practices at national level in Belgium and in two other EU countries: the Netherlands and the United Kingdom. This chapter will show that some protection statuses have remained national, i.e. non-EU harmonized, such as protection statuses for unaccompanied minors, victims of human smuggling, stateless persons, seriously ill foreign nationals, etc. A systematic comparative analysis of the migration and asylum legislation in Belgium, the Netherlands and the United Kingdom will make it possible to weigh the extent of national protection granted within these three Member States to several statutes. A detailed examination will be made of the forms/modalities of protection that have remained national, in particular with regard to the protection needs targeted, the procedures available, the residence status, and the rights secured. Ultimately, the purpose is to investigate how Belgium, the Netherlands and the United Kingdom operate national protection statuses as well as to understand the dynamics between EU harmonization and the several statuses that (so far) remain non-EU harmonized and nevertheless offer protection to foreign nationals within the Member States. In a fifth and last phase, the thesis will examine whether additional protection needs are best addressed further at national level or rather at EU level (principle of subsidiarity). The absence of a general and overall harmonized approach towards protection may well result in unequal protection within the EU and, consequently, secondary intra-communitarian migration flows by foreign nationals towards countries with broader national protection regimes. In particular, is there a need for further EU harmonization of remaining non-EU harmonized protection statuses, against the background of the further development of the European Area of freedom, security and justice? Will the legal protection of foreign nationals and the internal consistency of the relevant national legislation gain by EU harmonization or rather by a strengthening of national legislation? The thesis will show that although EU harmonization is to be preferred, a number of good reasons justify that national protection statuses are maintained and even further developed as long as the EU does not make use of its shared competence in asylum and migration to address the lack of an EU response towards remaining protection needs. The doctoral thesis will thus examine closely the reciprocal impact of external elements (influence of EU law, as well as of regional and international human rights instruments) and internal elements (influence of national developments) of immigration law and policy with regard to protection needs and the ensuing need for harmonization within an EU context.
Publication status: published
KU Leuven publication type: TH
Appears in Collections:Institute for Human Rights

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