Judicial Activism in the Name of the Nation: Reneging on the Integration of Immigrants in Greece
| Published date | 01 December 2016 |
| DOI | http://doi.org/10.1111/jols.12004 |
| Author | Dia Anagnostou |
| Date | 01 December 2016 |
JOURNAL OF LAW AND SOCIETY
VOLUME 43, NUMBER 4, DECEMBER 2016
ISSN: 0263-323X, pp. 596±618
Judicial Activism in the Name of the Nation: Reneging on
the Integration of Immigrants in Greece
Dia Anagnostou*
Why do courts sometimes decide to liberalize migrants' rights, while at
others restricting such rights, even contrary to the policies of elected
governments? This article addresses this question in the context of
Greece. It explores the causes and consequences of judicial decision
making in a major decision of the Council of State that suspended the
most important government reform of 2010, promoting the integration
of third-country nationals. Drawing on judicial politics scholarship, it
argues that the ideological and political preferences of key judges were
an important influence on the first Council of State decision considered
here. However, in the final decision, intra-court dynamics and the
judges' consideration of external political constraints influenced the
court's reasoning, leading to a more moderate outcome, with
important consequences for the relaunching of policy reform.
[L]egislative and judicial antagonism to judicial involvement in immigration
matters . . . is an anomalous pattern for it deviates sharply from more generic
settled norms in constitutional and administrative law. It is also a disturbing
pattern, for we can never be complacent about the vulnerability of immigrants
to popular majorities. Trite as it may be to say it, the mark of a great society is
that it treats its most vulnerable members with fairness and compassion. We
should accept nothing less for immigrants.
1
Judicial intervention in immigration-related issues and decision making has
received increasing scholarly attention over the past twenty years in Europe.
Courts arguably tend to be favourably predisposed towards expanding and
liberalizing the rights of migrants. National courts, but also the Court of
596
*Department of Public Administration, Panteion University of Social and
Political Sciences, Athens, Greece
anagnostou.eliamep@gmail.com
1 S.H. Legomsky, `Fear and Loathing in Congress and the Courts: Immigration and
Judicial Review' (2000) 78 Texas Law Rev. 1615, at 1632.
ß2016 The Author. Journal of Law and Society ß2016 Cardiff University Law School
Justice of the European Union (CJEU) and the European Court of Human
Rights (ECtHR), are seen to display considerable receptivity to the rights
claims of immigrants against majoritarian pressures that advocate their
restriction, even contrary to the stated policies of governments.
2
In fact, the
imputed receptivity of national courts to immigrants' claims is viewed as a
key factor in explaining the expansion of migrants' rights in the past few
decades and their incorporation into the broader community of citizens in
European host societies. Instanc es of judicial activism on behalf of
immigrants' rights have been highlighted not only by scho lars who
emphasize the decisive influence of international human rights norms over
expansive judicial approaches.
3
They have also been noted by those who put
a premium on the nature and workings of domestic liberal state institutions
that promote the expansion of immigrants' rights.
4
Whether, and the extent to which, courts have been forerunners in the
expansion of immigrants' rights in European societies though, is uncertain
and highly disputed. Their role in this regard is especially ambivalent in
migration-related issues having to do with the long-term stay and integration
of non-nationals in a host society. Such issues are often entangled in deeply
held social-cultural norms and views about the nation. Yet, the determinants
of judicial decision making in Europe and their variable effects for migrants'
rights remain unexplored and untheorized. In a terrain of socio-legal research
that is largely undeveloped in Europe, the present study delves into the
complex processes of institutional interaction and judicial decision making
that shape immigration law and policy. It explores judicial intervention in
immigration policy and the factors that influence it.
A close perusal of relevant studies shows that while courts may
liberalize migrants' access to citizenship, they may also decide to roll back
rights already conceded by legislatures and governments.
5
Courts have
sometimes emerged as important actors in the processes of incorporation of
immigrants in European societies, as some scholars show.
6
In some
597
2 M.A. Schain, `The State Strikes Back: Immigration Policy in the European Union'
(2009) 20 European J. of International Law 93, at 96.
3 For this argument, see Y.N. Soysal, Limits of Citizenship ± Migrants and Postnational
Membership in Europe (1994).
4 See T.A. Aleinikoff, `Between Principles and Politics: U.S. Citizenship Policy' in
From Migrants to Citizens: Membership in a Changing World, eds. T.A. Aleinikoff
and D. Klusmeyer (2000); C. Joppke, Immigration and the Nation-State: United
States, Germany and Great Britain (1999).
5 G.L. Neuman, ```We Are the People'': Alien Suffrage in German and American
Perspective' (1992) 13 Michigan J. of International Law 237, at 259.
6 C. Joppke, `The Legal-Domestic Sources of Immigrant Rights (2001) 34 Comparative
Political Studies 339; D. Soennecken, `The Growing Influence of the Courts over the
Fate of Refugees' (2008) 4 Rev. of European and Russian Affairs 10; V. Guiraudon,
`The Constitution of a European Immigration Policy Domain: A Political Sociology
Approach' (2002) 10 J. of European Public Policy 263.
ß2016 The Author. Journal of Law and Society ß2016 Cardiff University Law School
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