Mutual (Dis-)Trust in EU Migration and Asylum Law: The Exceptionalisation of Fundamental Rights

Abstract

This chapter deals with the functioning of ‘mutual trust’ as the organising principle of mechanisms of (implicit) mutual recognition in the fields of migration and asylum within the AFSJ, looking both at rights-conferring and rights-restricting measures, comparing their treatment. The chapter uncovers a contradictory dynamic whereby the mutual recognition of rights-restricting measures across the EU is near-automatic and practically unconditional, while the mutual recognition of rights-conferring measures virtually non-existent. The reason for this is claimed to be the interplay between presumed (abstract) trust, as required by the case law of the CJEU, and the real (practical) distrust, professed at horizontal and vertical level in the day-to-day administration of EU migration and asylum governance. Such interplay produces insidious effects on third-country nationals, particularly in the case of asylum applicants, leading to the arbitrary ‘exceptionalisation’ of their fundamental rights.