Legal mobilization and the judicial construction of EU migration law

Abstract

Legal mobilization is a peculiar type of mobilization: it does not bring people to the streets and does not use banners and slogans. Instead, it quietly uses the law and courts to press for social change. While most of the studies on legal mobilization focus on the United States or on the European Court of Human Rights, this thesis brings attention on the underexplored but yet important question of legal mobilization before the Court of Justice of the European Union. In particular, this research asks whether the preliminary reference mechanism (267 TFEU) can be used as a tool for enhancing migrants’ participation and protection. To do so, the thesis departs from the classic court-centric approach and conducts a law and society analysis of three case studies (Italy, the UK and the Netherlands). By interviewing the individuals involved in the preliminary reference proceedings on migrants’ rights, and by analysing press documents and political statements, I collected fine-grained qualitative data that allowed me to uncover the legal mobilization stories behind the litigations. Finally, analysing together the three case studies, the last chapter identifies the conditions under which a legal mobilization emerges and reaches the Court of Justice. These conditions lay bare the fact that supranational legal mobilization is not a ‘cheap’ strategy: it is generally a rather long process, that requires material and non-material resources, and the outcome of which is difficult to predict. The findings of this thesis offer an innovative understanding of the preliminary reference mechanism and of its potential to create social change. Although in some instances the Court of Justice has not been responsive to the civil society’s calls, in other cases litigation has led to the redefinition and expansion of migrants’ rights, and arguably it represents an important tool to scrutinize the executive’s activity and give voice to minorities’ interests.