Civil Society and EU Migration Law: Setting a Research Agenda
Abstract: This blogpost outlines the research agenda of the ‘Migration and Civil Society’ line of investigation, which aims to explore the relationship between EU law and pro-migrant civil society actors. Without being exhaustive, it foregrounds four ways in which this relationship can be approached. The first possibility is to analyse EU law’s understanding of civil society actors’ participation in EU institutional life. The second is to examine EU law’s approach to these actors’ pro-migrant acts of assistance. The last two possibilities require an analysis of civil society perspectives, by examining their critiques of EU law and their strategies of EU legal mobilisation.
Keywords: migration, civil society, European Union law, legal mobilisation.
Civil society actors, including non-governmental organisations and social movements, have been particularly active in the field of migration, both in Europe and worldwide.  The research line on ‘Migration and Civil Society’ aims at understanding better their significance by exploring their relationship with law, especially European Union (EU) law. This question remains underexplored in legal scholarship, yet it is crucial for understanding better contemporary practices of migration governance and resistance. This is ever more important in a global context of increasing conflicts, most recently the Russo-Ukrainian war, but also ever deepening economic inequalities and the rapidly evolving climate change.
This blogpost will outline the various ways in which the relationship between EU law and pro-migrant civil society actors can be approached, including the main questions that these would entail. Without claiming to be exhaustive, it elaborates on four possible perspectives and their ramifications: EU law’s approach to civil society actors’ participation in EU institutional life (1), its approach to their pro-migrant acts of assistance (2), civil society actors’ critiques of EU law (3), their strategies of EU legal mobilisation before courts (4).
1. EU law’s approach to civil society actors’ participation in EU institutions
Civil society is often understood in legal scholarship from the perspective of democratic legitimacy and participatory governance. On the EU institutional level, these concerns have been especially important during the first decade of the twenty-first century, when the European Commission issued a series of documents delineating its approach to European governance and stirring a debate on these issues. This laid the foundations for the introduction of a provision in the Treaty on the Functioning of the EU (art. 17) in 2009, which asserted that the EU is committed to an “open, transparent, and regular dialogue” with civil society organisations (CSOs).
Some formal structures of representation existed on the EU level even prior to the recognition of the importance of CSOs by the Treaty of Lisbon. Indeed, they were meant to be represented by the European Economic and Social Committee (EESC), created as early as 1957. Operating as an intermediary between EU institutions and civil society, this body has been criticised for representing a patchy and incomplete assemblage of interests and for not reflecting the diversity of civil society actors’ views.
In this sense, the establishment and functioning of the EESC have not “resolved” the issues related to EU participatory governance, but rather (re-)produced them. A variety of civil society organisations have established their own informal channels of communication with different EU institutions, seeking to shape EU law-making processes. In the field of migration, the mobilisation of civil society began to intensify around the developments that led to the Amsterdam Treaty. This is not surprising, given that the Treaty expanded the sphere of competence of the then European Community to cover issues of immigration and asylum.
Informal relations continue to unfold today alongside mechanisms of citizens’ participation established by the Lisbon Treaty, some of which – including the European Citizens Initiative and European Commission’s public consultations – became increasingly used by/for civil society organisations and less by/for ‘ordinary’ citizens. To this day, however, it would be misleading to say that all civil society actors are entitled to participate in EU’s institutional life or that the dialogue with the CSOs active on the EU level is sufficiently “open, transparent, and regular”. Moreover, the institutional debate over possible ways of improving the contemporary relations between civil society actors and EU institutions is still ongoing.
The research line on ‘Migration and Civil Society’ seeks to contribute to this debate, by examining more specifically the pro-migrant civil society scene. What type of actors does the EU approach to civil society favour (and marginalise) and how does this shape the configuration of the landscape of pro-migrant actors? More generally, what are the main limitations of EU’s approach to civil society, how does it impact the pro-migrant landscape and what are the main alternatives?
2. EU law’s approach to civil society actors’ pro-migrant acts of assistance
Another possibility of approaching the relationship between civil society actors and EU law is by analysing EU’s approach to these actors’ efforts of assisting migrants. There is no general EU text on this aspect, but there are some relevant elements in EU law. An example is Member States’ obligation under the Reception Directive to provide information to applicants for international protection on relevant civil society actors. Another example is Member States’ obligation under both the Reception and Return Directives to ensure that the relevant non-governmental organisations have the possibility to visit detainees. To our knowledge, there is no overarching analysis of such provisions that would draw broader conclusions on EU law’s approach to civil society actors’ pro-migrant acts of assistance. In this sense, such perspective alone could be a valuable contribution to existing EU legal scholarship on migration.
This is not to say that civil society actors’ acts of assistance have not been discussed in relation to EU law. Indeed, perhaps the most discussed aspect has been their criminalisation by national public authorities. Such criminalisation became especially visible when it came to be deployed against Search and Rescue (SAR) NGO actors. This has been the case for vessels like Ocean Viking, IUVENTA, Sea Watch 3 and 4, and Open Arms. These developments have been severely criticised for obstructing civil society actors’ objective of addressing persisting gaps in SAR provision and effectively save lives at sea.  Different forms of criminalisation existed even prior to these developments in relation to other ways of assisting migrants, such as providing food or offering help for crossing land borders.
The EU legal framework, while committed to human rights and containing provisions on SAR, has been to some extent complicit with these developments. The main EU instrument that delineates its approach to the criminalisation of acts carried out in relation to migrants is the EU Directive on “the facilitation of unauthorised entry, transit and residence”. The Directive has been criticised for its wide definition of what constitutes a crime of migrant smuggling, more specifically for not requiring the proof of motivations of material benefit.  Under its regime, Member States are implicitly left with the possibility of criminalising acts whose aim is to provide humanitarian assistance. These developments led to the 2020 Commission Guidance on the implementation of the Facilitation Directive, which recommended an interpretation of it as excluding the possibility to criminalise “humanitarian assistance that is mandated by law”.
The Directive, however, is part of a broader and more complex problem. The main issue is rather the ever-growing importance of security concerns, which shape in a variety of ways EU migration law and concern the same people that EU law aims to protect based on a humanitarian rationale. The broader question to be examined, then, is the variety of ways in which security and humanitarian concerns play out in EU migration law and how they shape EU’s approach to pro-migrant civil society actors.
3. Civil society actors’ critiques of EU Law
A third possibility for examining the relationship between civil society actors and EU law is by approaching their critiques of EU law. Such critiques can be analysed as inviting for changes in the contemporary legal configurations of EU migration governance. I have previously examined this question in the context of Search and Rescue NGOs, by approaching their social media accounts as potential repositories of such critiques.
This is a largely unchartered territory in legal scholarship. This approach redirects our focus from institutional perspectives toward civil society actors’ critiques, as well as their legal implications. Such critiques can be found in policy documents and reports prepared by civil society actors, their analyses of existing EU legal proposals and rules, as well as online blogposts and social media posts.
Examples include the existing critiques of the 2020 New Pact on Migration and Asylum, currently still under discussion, and other efforts of challenging the ways in which security concerns shape EU migration law. Civil society actors have questioned, for example, EU’s collaboration with Libya and the prioritisation of the objective of combatting migrant smuggling networks. The New Pact is often portrayed as further consolidating the restrictive rationale of EU migration law. Taking such critiques seriously would require taking a step forward from their mere restatement and providing an analysis of their main legal implications.
4. Civil society actors’ strategies of EU legal mobilisation
Last, but not least, a different way in which the relationship between EU law and civil society actors can be approached is by analysing their strategies of EU legal mobilisation before courts. While the rules of procedure of the Court of Justice of the EU limit in considerable ways third-party interventions, recent studies have shown that civil society actors might have a significant role in EU legal mobilisation via preliminary reference. Some NGOs actors explicitly refer to the importance of the CJEU in their pro-migrant strategies of legal mobilisation.
This perspective situates itself in the continuity of the approach that seeks to analyse civil society actors’ critiques of EU law, outlined above. Indeed, legal mobilisation before courts is also a way of challenging a certain understanding of law while pushing for a different interpretation of it. In this sense, such critiques can be repositories of legal alternatives, be they recognised by courts or not. Existing legal literature too often reduces case law to courts’ perspectives without giving sufficient weight to civil society organisations’ strategies of legal mobilisation.
How does EU law play out in contemporary strategies of legal mobilisation by civil society actors? What are the main possibilities and challenges related to EU legal mobilisation? These issues remain largely underexplored in EU migration law and are worthy of further investigation.
In conclusion, the question of the relationship between pro-migrant civil society actors and EU law invites for at least four promising pathways of investigation. EU’s restrictive approach, which risks reaching an apogee with the New Pact on Migration and Asylum, makes it ever more important to turn to these lines of investigation. Indeed, integrating pro-migrant civil society actors in our understanding of EU law not only opens up for different understandings of EU migration law, but also prompts the question of the ways in which EU law’s approach to civil society could be improved.
 Assistant Professor at NOVA School of Law, General Coordinator of NOVA Refugee Legal Clinic.
 For a definition of civil society as actors pursuing public policy goals and including both non-governmental organisations and social movements, see Rosa Sanchez Salgado, Europeanizing Civil Society: How the EU Shapes Civil Society Organizations (Palgrave Macmillan 2014) 29.
 Commission, ‘European governance – A white paper’ COM(2001) 0428 final; Commission, ‘Towards a Reinforced Culture of Consultation and Dialogue—General Principles and Minimum Standards for Consultation of Interested Parties by the Commission’ (Communication) COM(2002) 704 final; Commission, ‘European Transparency Initiative’(Green Paper) COM(2006) 194 final; Commission, ‘Follow-up to the Green Paper “European Transparency Initiative”’ (Communication) COM(2007) 127 final; Commission, ‘European Transparency Initiative: A Framework for relations with interest representatives (Register and Code of Conduct)’ (Communication) COM (2008) 323 final.
Deirdre Curtin, ‘Private interest representation or civil society deliberation? A contemporary dilemma for European Union governance’ (2003) 12-1 Social & Legal Studies 55; Israel de Jesús Butler, ‘Non‐governmental organisation participation in the EU law‐making process: The example of social non‐governmental organisations at the Commission, Parliament and Council’ (2008) 14-5 European Law Journal 558.
 Jan Niessen, ‘The Amsterdam treaty and NGO responses’ (2000) European Journal of Migration and Law 203.
 Sophia Russack, ‘Pathways for Citizens to Engage in EU Policymaking’, in Steven Blocksmans and Sophia Russack (eds), Direct Democracy in the EU: The Myth of a Citizens’ Union, CEPS Policy Insights 2018/14.
 For a list of civil society actors registered in the EU Transparency Register, see https://ec.europa.eu/transparencyregister/public/homePage.do
 Commission, ‘Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, On the European democracy action plan’ COM(2020) 790 final; Commission, ‘Conference on the Future of Europe: Engaging with citizens to build a more resilient Europe’ (2021), available at https://ec.europa.eu/commission/presscorner/detail/en/ip_21_1065.
 European Parliament and Council Directive 2013/33/EU of 26 June 2013 laying down standards for the reception of applicants for international protection (recast)  OJ L 180/96, art. 5-1.
 Ibid, art 10-4.
 Daniel Ghezelbash and others, ‘Securitization of Search and Rescue at Sea: The Response to “Boat Migration” in the Mediterranean and Offshore Australia’ (2018) 67 International and Comparative Law Quarterly 1.
 Daria Davitti, ‘Biopolitical borders and the state of exception in the European migration ‘crisis’’ (2018) 29-4 European Journal of International Law 1173.
 Sergio Carrera and others, ‘Fit for Purpose?: The Facilitation Directive and the Criminalisation of Humanitarian Assistance to Irregular Migrants’ (2016) Centre for European Policy Studies.
 Council Directive (EC) 2002/90 defining the facilitation of unauthorised entry, transit and residence of the  OJ L 358/17, art 1-2.
 Commission, ‘Guidance on the implementation of EU rules on definition and prevention of the facilitation of unauthorised entry, transit and residence’ (Communication) C(2020) 6470 (emphasis added).
 Daria Davitti, ‘Biopolitical borders and the state of exception in the European migration ‘crisis’’ (2018) 29-4 European Journal of International Law 1173.
 Veronica Corcodel, ‘Legal Framings in Networked Public Spheres: The Case of Search and Rescue in the Mediterranean’ in Edoardo Celeste, Amélie Heldt, and Clara Iglesias Keller (eds) Constitutionalising Social Media (Hart Publishing 2022) (forthcoming).
 Virginia Passalacqua, ‘Legal mobilization via preliminary reference: Insights from the case of migrant rights’ (2021) 58-3 Common Market Law Review 751.
HOW TO CITE THIS BLOG POST:
Corcodel, Veronica. “Civil Society and EU Migration Law: Setting a Research Agenda”. NOVA Refugee Clinic Blog, March 2022, available at: <https://novarefugeelegalclinic.novalaw.unl.pt/?blog_post=civil-society-and-eu-migration-law-setting-a-research-agenda>