Access to Justice in the New Pact: A Critical Diagnosis

• In Event: The EU Pact on Migration and Asylum: Why Criminologists Should Care? (II)

Abstract

In the framework of EU law, access to justice is commonly equated to access to courts and to effective judicial remedies. However, a law-in-context approach mandates to take into consideration all the steps that precede the judicial intervention in order to assess whether access to justice is genuinely upheld. This is all the more true for asylum-seekers, whose need for legal protection arises even before reaching the territory of the EU (Terlouw,2016) and before the possibility to access a court. Therefore, ensuring access to justice requires, in addition to access to judicial remedies, access to legal aid and fair procedures. The New Pact on Migration and Asylum takes an ambiguous stance on this issue. The Asylum Procedures Regulation, in fact, enhances free legal counselling during administrative procedures, thus marking a formal improvement over previous legislation. However, inconsistencies across related regulations—such as the Screening Regulation, the Return Border Procedure Regulation, and the Asylum and Migration Management Regulation—raise concerns about the effectiveness and accessibility of legal protection. Examples of obstacles to access to justice are the restrictions on legal aid at borders and in detention facilities and the administrative opacity of the ever-increasing digital border management.
This paper first maps out the key provisions on legal aid and appeal rights in the New Pact. It then examines how these provisions reflect a particular conception of justice that stands in stark contrast to fundamental EU legal principles.

Author

• Agostina Pirrello, University of Utrecht