Browsing by Subject "constitutional Law"

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  • Farzamfar, Mehrnoosh (Helsingin yliopisto, 2021)
    In this doctoral dissertation, I study the tense relationship between the obligations to protect human rights of immigrants, on the one hand, and the need to safeguard the internal security of the European Union (EU), on the other. Although a considerable amount of research is available on the link between immigration and security, there is a clear lack of understanding of what this tension actually means for the right to seek asylum in the EU as a fundamental right. The aim is thus to fill this knowledge gap by analysing the possible impacts of EU security narratives on the human rights discourse, particularly on the right to seek asylum as a fundamental right protected under Article 18 of the EU Charter of Fundamental Rights. Being a fundamental right implies that there is an inviolable essence that may not be limited or balanced against in anyway – even if the security concerns of the EU or its Member States are allegedly at stake. The inviolable essence of the right to seek asylum includes two core elements: (1) that asylum seekers should be allowed to enter the territory of the EU in order to submit claims for asylum; and (2) that they should not be returned to places where their lives are clearly at risk (the principle of non-refoulement). However, portraying immigrants, especially those arriving from the Global South, as potential threats to EU internal security and the national security of its Member States, has led to restrictive immigration policies and practices, which affect the inviolable essence of this right. Accordingly, the main research question addressed here is what the implications are of the securitisation of immigration in the EU upon the right to seek asylum as a fundamental right. Studying the concept of security and its different aspects lies beyond the field of jurisprudence. Therefore, to answer the main research question, an interdisciplinary approach combining the methods of law and social sciences is to be adopted. To be precise, the method applied here is critical discourse analysis – an analytical tool available to both critical legal studies and critical security studies. To address the possible results of securitising immigration on the right to seek asylum as a fundamental right in the EU, I critically analyse the practices of EU Member States, the content of EU laws, and the jurisprudences of the Court of Justice of the European Union and the European Court of Human Rights in relevant immigration cases. In conclusion, I show that the official narrative of fear, anxiety, and emergency – that immigration poses existential threats to EU internal security and the national security of its Member States – is eroding the status of the right to seek asylum to less than that of a fundamental right. The significance of the findings of this research is that if the right to seek asylum is to remain a real and effective right, rather than only a theoretical or illusionary one, we should take this right seriously by protecting its essence.