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2 - Expanding the Rights to Stay?

from Part I

Published online by Cambridge University Press:  03 May 2019

Moritz Baumgärtel
Affiliation:
Universiteit Utrecht, The Netherlands
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Summary

This chapter analyzes whether the European courts have been able to ensure the protection of vulnerable migrants who struggle to legitimate their claim to residency, a crucial precondition for accessing a whole range of other rights. The focus is on four high-profile rulings by the CJEU. The first case, Elgafaji, dealing with claims of persons originating from countries characterised by high degrees of generalised violence, reveals how the Court’s approach, if not fully committal, can lead to confusing and therefore suboptimal outcomes from the perspective of migrant rights. The protection from persecution on the grounds of sexual orientation is the subject of two closely interrelated rulings in X, Y & Z and A, B & C. Taken together, these provide some indication of how the decisions of the European courts can have a practical impact: namely, in buttressing and even accelerating progress in contexts where practices are already changing. The last part deals with a somewhat different claim based on family ties, focusing on the contentious Zambrano case. Here, the CJEU used subsequent rulings to actively backpedal when it presumably went too far for EU Member States.
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Chapter
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Demanding Rights
Europe's Supranational Courts and the Dilemma of Migrant Vulnerability
, pp. 13 - 45
Publisher: Cambridge University Press
Print publication year: 2019

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