Of Legislative Waves and Case law: Effective Judicial Protection, Right to an Effective Remedy and Proceduralisation in the EU Asylum Policy

Abstract

This article explores the multifaceted relationship between the principle of effective judicial protection, the fundamental right to an effective remedy, and secondary EU procedural rules in asylum. Proceduralisation has been an explicit goal of the EU asylum policy since its inception. It has materialised in three legislative waves. The first resulted in the creation of a basic set of procedural guarantees, alongside a plethora of exceptional procedures. The second resulted in modest improvements in terms of harmonisation, and adherence to fundamental rights, but saw exceptional procedural arrangements either retained or introduced. The third, forthcoming wave, aims at further harmonisation that risks, however, being heavily focused on the underlying goal of externalising protection to third countries. Case law of the Court of Justice of the European Union has further refined procedural guarantees shaping national procedural autonomy. Drawing from the Charter rights to good administration and to an effective remedy, the Court has not shied away from adducing additional procedural requirements. It has also clarified how the principle of effective judicial protection and the Charter right to an effective remedy relate to each other, finding that the latter reaffirms the principle of effective judicial protection and largely aligning their scope. The emerging procedural landscape is increasingly complex. The Court's nuanced assessments combined with a plethora of exceptional arrangements at national level led to convoluted standards that are increasingly difficult to put in practice.