@techreport{CostelloGroenendijkHalleskovStorgaard, type = {Working Paper}, author = {Costello, Cathryn and Groenendijk, Kees and Halleskov Storgaard, Louise}, title = {Realising the Right to Family Reunification of Refugees in Europe}, abstract = {This issue paper examines family reunification for refugees as a pressing human rights issue. Without it, refugees are denied their right to respect for family life, have vastly diminished integration prospects and endure great additional unnecessary suffering, as do their family members. The Commissioner for Human Rights calls on all Council of Europe member states to uphold their human rights obligations and ensure the practical effectiveness of the right to family reunification for refugees and other international protection beneficiaries. To do so, states should (re-)examine their laws, policies and practices relating to family reunification for refugees. This issue paper contains 36 recommendations to that end.}, language = {en} } @techreport{GuildCostelloMorenoLax, type = {Working Paper}, author = {Guild, Elspeth and Costello, Cathryn and Moreno-Lax, Violeta}, title = {Implementation of the 2015 Council Decisions establishing provisional measures in the area of international protection for the benefit of Italy and of Greece}, abstract = {This study, commissioned by the European Parliament's Policy Department for Citizens' Rights and Constitutional Affairs at the request of the LIBE Committee, examines the EU's mechanism of relocation of asylum seekers from Greece and Italy to other Member States. It examines the scheme in the context of the Dublin System, the hotspot approach, and the EU-Turkey Statement, recommending that asylum seekers' interests, and rights be duly taken into account, as it is only through their full engagement that relocation will be successful. Relocation can become a system that provides flexibility for Member States and local host communities, as well as accommodating the agency and dignity of asylumseekers. This requires greater cooperation from receiving States, and a clearer role for a single EU legal and institutional framework to organise preference matching and rationalise efforts and resources overall.}, language = {en} } @techreport{GuildCostelloGarlicketal., type = {Working Paper}, author = {Guild, Elspeth and Costello, Cathryn and Garlick, Madeline and Moreno-Lax, Violeta}, title = {Enhancing the Common European Asylum System and Alternatives to Dublin}, abstract = {Upon request by the LIBE committee, this study examines the reasons why the Dublin system of allocation of responsibility for asylum seekers does not work effectively from the viewpoint of Member States or asylum-seekers. It argues that as long as it is based on the use of coercion against asylum seekers, it cannot serve as an effective tool to address existing imbalances in the allocation of responsibilities among Member States. The EU is faced with two substantial challenges: first, how to prevent unsafe journeys and risks to the lives of people seeking international protection in the EU; and secondly, how to organise the distribution of related responsibilities and costs among the Member States. This study addresses these issues with recommendations aimed at resolving current practical, legal and policy problems.}, language = {en} } @techreport{GuildCostelloGarlicketal., type = {Working Paper}, author = {Guild, Elspeth and Costello, Cathryn and Garlick, Madeline and Moreno-Lax, Violeta and Mouzourakis, Minos}, title = {New Approaches, Alternative Avenues and Means of Access to Asylum Procedures for Persons Seeking International Protection}, abstract = {Upon request by the LIBE committee, this study examines the workings of the Common European Asylum System (CEAS), in order to assess the need and potential for new approaches to ensure access to protection for people seeking it in the EU, including joint processing and distribution of asylum seekers. Rather than advocating the addition of further complexity and coercion to the CEAS, the study proposes a focus on front-line reception and streamlined refugee status determination, in order to mitigate the asylum challenges facing Member States, and guarantee the rights of asylum seekers and refugees according to the EU acquis and international legal standards.}, language = {en} } @techreport{KaytazCostello, type = {Working Paper}, author = {Kaytaz, Esra and Costello, Cathryn}, title = {Building Empirical Research into Alternatives to Detention: Perceptions of Asylum-Seekers and Refugees in Toronto and Geneva}, abstract = {Recent research in Toronto and Geneva indicates that asylum seekers and refugees are predisposed to be cooperative with the refugee status determination (RSD) system and other immigration procedures, and that the design of alternatives to detention can create, foster and support this cooperative predisposition - or can undermine or even demolish it.}, language = {en} } @techreport{LazarusCostelloGhaneaetal., type = {Working Paper}, author = {Lazarus, Liora and Costello, Cathryn and Ghanea, Nazila and Zeigler, Katja}, title = {Report on the evolution of Fundamental Rights Charters and Caselaw: A comparison of the EU, Council of Europe and UN Systems}, pages = {254}, abstract = {This report examines the human rights protection systems of the United Nations, the Council of Europe and the European Union. It explores the substantive rights, protection mechanisms, modes of engagement within, and the interactions between each system. The report also outlines the protection of minority rights, and the political processes through which human rights and institutions evolve and interact. A series of recommendations are made on how to advance the EU human rights system.}, language = {en} } @techreport{Costello, type = {Working Paper}, author = {Costello, Cathryn}, title = {Report on Improving the Quality and Consistency of Asylum Decisions in the Council of Europe Member States}, abstract = {There are important shortcomings in terms of quality and consistency of the asylum decisions taken in the Council of Europe member states. As evidence of this, in 2007 acceptance rates varied considerably between 1\% and 39\% in countries receiving significant numbers of asylum seekers. The situation was even more dramatic when looking at certain specific groups of asylum seekers. For example, again in 2007, the acceptance rates for Iraqis seeking protection in Europe varied between 0 and 81\%. The very low recognition rates in certain countries, or for certain groups of asylum seekers, may be due to difficulties in accessing the asylum process, poor procedural safeguards in the asylum proceedings, restrictive and divergent interpretation of eligibility criteria, lack of objective and reliable country of origin information, poor evidential assessment, in particular the culture of disbelief in asylum adjudication, political pressure, lack of training of the relevant authorities and their personnel, or a combination of these factors. The Committee of Ministers of the Council of Europe should be invited to prepare guidelines to address the difficulties outlined above. These guidelines should encourage Council of Europe member states to develop higher standards of protection, based on their own domestic standards of human rights or humanitarian impulse, reflecting the nature of the European Convention on Human Rights as a pan-European minimum standard. Furthermore the Committee of Ministers should consider a mechanism for monitoring the quality and consistency of asylum decisions, and to facilitate this task, consider guidelines on harmonisation of asylum data across Council of Europe member states, taking into account work already carried out at by the European Union. The Committee of Ministers should also review the asylum curriculum in member states and develop training programmes, tools and data-bases of jurisprudence of asylum decisions across Europe. Finally, there is a pressing need for the Committee of Ministers to establish a new inter-governmentalCommittee with a permanent mandate to examine asylum and refugee issues to replace the work formerly carried out by the Ad hoc Committee of experts on the legal aspects of territorial asylum, refugees and stateless persons (CAHAR).}, language = {en} } @book{BacikCostelloDrew, author = {Bacik, Ivana and Costello, Cathryn and Drew, Eileen}, title = {Gender InJustice: Towards the Feminisation of the Legal Professions?}, isbn = {0953497917}, publisher = {Hertie School}, pages = {431}, language = {en} } @incollection{Costello, author = {Costello, Cathryn}, title = {European Community Judicial Review in the Irish Courts - Scope, Standards and Separation of Powers}, series = {Irish perspectives on EC law}, booktitle = {Irish perspectives on EC law}, editor = {Lucey, Mary Catherine and Keville, Cathrina}, publisher = {Round Hall Ltd}, address = {Dublin}, isbn = {978-1-85800-280-4}, publisher = {Hertie School}, pages = {17 -- 50}, language = {en} } @book{Costello, author = {Costello, Cathryn}, title = {The Oxford Handbook of International Refugee Law}, editor = {Costello, Cathryn and Foster, Michelle and McAdam, Jane}, publisher = {Oxford University Press}, address = {Oxford}, isbn = {9780198848639}, publisher = {Hertie School}, pages = {1344}, abstract = {The Oxford Handbook of International Refugee Law is a comprehensive, critical work, which analyses the state of research across the refugee law regime as a whole. Drawing together leading and emerging scholars, the Handbook provides both doctrinal and theoretical analyses of international refugee law and practice. It critiques existing law from a variety of normative positions, with several chapters identifying foundational flaws that open up space for radical rethinking. Many authors work directly in the field, and their contributions demonstrate how scholarship and practice can mutually inform each other. Contributions assess a wide range of international legal instruments relevant to refugee protection, including from international human rights law, international humanitarian law, international migration law, the law of the sea, and international and transnational criminal law. Geographically, contributors examine regional and domestic laws and practices from around the world, with 10 chapters focused on specific regions. This Handbook provides an account, as well as a critique, of the status quo, and in so doing it sets the agenda for future academic research in international refugee law.}, language = {en} } @incollection{CostelloIoffe, author = {Costello, Cathryn and Ioffe, Yulia}, title = {Non-Penalization and Non-Criminalization}, series = {The Oxford Handbook of International Refugee Law}, booktitle = {The Oxford Handbook of International Refugee Law}, editor = {Costello, Cathryn and Foster, Michelle and McAdam, Jane}, publisher = {Oxford University Press}, address = {Oxford}, isbn = {9780198848639}, publisher = {Hertie School}, abstract = {The chapter examines article 31 of the Convention relating to the Status of Refugees (Refugee Convention), the provision which purports to protect refugees from penalization for 'illegal entry and stay'. The chapter draws on the previous work by the authors for UNHCR, including a review of national caselaw and practice on article 31 from over forty States. It reflects on the crucial role of the provision in safeguarding the right to seek asylum and argues that non-penalization constitutes one of the objects and purposes of the Refugee Convention. As a result, the chapter considers the distinct obligation on States to refrain from any acts frustrating the treaty's object and purpose. Beyond article 31 of the Refugee Convention, the chapter explores international human rights law as a potentially wider source of protection. It examines whether the criminalization of irregular migration itself may be regarded as a human rights violation, thereby opening up a new avenue for legal research and advocacy. Finally, the chapter argues that aside from treaty obligations under international refugee and human rights law there is an emerging general principle of law relating to non-penalization of refugees and some other migrants.}, language = {en} } @incollection{CostelloO'Cinneide, author = {Costello, Cathryn and O'Cinneide, Colm}, title = {The Right to Work of Asylum Seekers and Refugees}, series = {The Oxford Handbook of International Refugee Law}, booktitle = {The Oxford Handbook of International Refugee Law}, editor = {Costello, Cathryn and Foster, Michelle and McAdam, Jane}, publisher = {Oxford University Press}, address = {Oxford}, isbn = {9780198848639}, publisher = {Hertie School}, language = {en} } @incollection{CostelloCox, author = {Costello, Cathryn and Cox, Neville}, title = {Sports Law}, series = {Annual Review of Irish Law}, booktitle = {Annual Review of Irish Law}, editor = {Byrne, Raymond and Binchy, William}, publisher = {Thomson Round Hall}, address = {Dublin}, isbn = {9781858003153}, publisher = {Hertie School}, pages = {539 -- 553}, language = {en} } @incollection{Costello, author = {Costello, Cathryn}, title = {The Legal Status and Legal Effects of the EU Charter of Fundamental Rights}, series = {Fundamental Social Rights: Current Legal Protection and the Challenge of the EU Charter of Fundamental Rights}, booktitle = {Fundamental Social Rights: Current Legal Protection and the Challenge of the EU Charter of Fundamental Rights}, publisher = {ICEL}, publisher = {Hertie School}, pages = {127 -- 149}, language = {en} } @incollection{Costello, author = {Costello, Cathryn}, title = {The Courts}, series = {What the Treaty of Nice Means}, booktitle = {What the Treaty of Nice Means}, editor = {Keatinge, Patrick and Dooge, Jim}, publisher = {Institute of International and European Affairs}, address = {Dublin}, isbn = {9781874109563}, publisher = {Hertie School}, pages = {61 -- 71}, language = {en} } @incollection{Costello, author = {Costello, Cathryn}, title = {The EU and the World Trade Organization}, series = {The European Union and the Developing Countries}, booktitle = {The European Union and the Developing Countries}, editor = {Cosgrove-Sacks, Carol}, publisher = {Palgrave Macmillan}, address = {London}, isbn = {9780230509184}, doi = {10.1057/9780230509184}, publisher = {Hertie School}, pages = {336 -- 346}, language = {en} } @techreport{CostelloBettsZaun, type = {Working Paper}, author = {Costello, Cathryn and Betts, Alexander and Zaun, Natascha}, title = {A Fair Share: Refugees and Responsibility-Sharing, Report and Policy Brief}, abstract = {Developing countries account for a large majority of global refugee reception. 3.5 million out of Syria's 4 million refugees have sought refuge in three countries - Turkey, Lebanon and Jordan. Is it possible to achieve a fair distribution of protection seekers? This Delmi report examines the division of responsibilities for those in need of protection from a global perspective. It analyses past and present models and discusses its feasibility in practice.}, language = {en} } @techreport{CostelloIoffeBuechsel, type = {Working Paper}, author = {Costello, Cathryn and Ioffe, Yulia and B{\"u}chsel, Teresa}, title = {Article 31 of the 1951 Convention Relating to the Status of Refugees}, abstract = {The aim of this paper is to clarify the correct interpretation of Article 31 of the 1951 Convention Relating to the Status of Refugees (the 1951 Refugee Convention). The interpretation proposed is based on the binding international precepts relating to treaty interpretation, as reflected in Articles 31 to 33 of the Vienna Convention on the Law of Treaties (VCLT).}, language = {en} } @incollection{Costello, author = {Costello, Cathryn}, title = {EC Immigration \& Asylum Policymaking: Integrating a Role for the Oireachtas}, series = {National Parliaments and the European Union: The Constitutional Challenge for the Oireachtas and Other Member State Legislatures}, booktitle = {National Parliaments and the European Union: The Constitutional Challenge for the Oireachtas and Other Member State Legislatures}, editor = {Barrett, Gavin}, publisher = {Clarus Press}, isbn = {9781905536023}, publisher = {Hertie School}, pages = {205 -- 242}, language = {en} } @incollection{Costello, author = {Costello, Cathryn}, title = {The Asylum Procedures Directive in Legal Context: Equivocal Standards Meet General Principles}, series = {Whose Freedom, Security and Justice? EU immigration and asylum law after 1999}, booktitle = {Whose Freedom, Security and Justice? EU immigration and asylum law after 1999}, editor = {Baldaccini, Anneliese and Guild, Elspeth and Toner, Helen}, publisher = {Hart Publishing}, isbn = {9781841136844}, publisher = {Hertie School}, pages = {151 -- 193}, language = {en} } @incollection{Costello, author = {Costello, Cathryn}, title = {Administrative Governance and the Europeanisation of Asylum and Immigration Policy}, series = {EU Administrative Governance}, booktitle = {EU Administrative Governance}, editor = {Hofmann, Herwig C.H. and T{\"u}rk, Alexander H.}, publisher = {Edward Elgar Publishing}, isbn = {9781845422851}, publisher = {Hertie School}, pages = {287 -- 340}, language = {en} } @incollection{Costello, author = {Costello, Cathryn}, title = {Accidents of Place and Parentage: Birthright Citizenship and Border Crossings}, series = {The Citizenship Referendum: Implications for the Constitution and Human Rights}, booktitle = {The Citizenship Referendum: Implications for the Constitution and Human Rights}, publisher = {School of Law, Trinity College Dublin}, publisher = {Hertie School}, pages = {5 -- 33}, language = {en} } @incollection{CostelloBrown, author = {Costello, Cathryn and Brown, Eimear}, title = {ECHR and the European Union}, series = {ECHR and Irish Law}, booktitle = {ECHR and Irish Law}, editor = {Kilkelly, Ursula}, publisher = {Jordan Publishing}, isbn = {9781846611247}, publisher = {Hertie School}, pages = {35 -- 78}, language = {en} } @incollection{Costello, author = {Costello, Cathryn}, title = {EU Asylum Law \& Policy}, series = {Sanctuary in Ireland, Perspectives on Asylum Law and Policy}, booktitle = {Sanctuary in Ireland, Perspectives on Asylum Law and Policy}, editor = {Fraser, Ursula and Harvey, Colin}, publisher = {Institute of Public Administration}, isbn = {9781904541042}, publisher = {Hertie School}, pages = {18 -- 51}, language = {en} } @incollection{Costello, author = {Costello, Cathryn}, title = {Irish and European Law}, series = {Ireland and the European Union: The First Thirty Years 1973-2003}, booktitle = {Ireland and the European Union: The First Thirty Years 1973-2003}, editor = {Hourihane, Jim}, publisher = {Lilliput Press Dublin}, isbn = {9781843510352}, publisher = {Hertie School}, pages = {26 -- 40}, language = {en} } @incollection{Costello, author = {Costello, Cathryn}, title = {Positive Action}, series = {Equality in Diversity: The New Equality Directives}, booktitle = {Equality in Diversity: The New Equality Directives}, editor = {Costello, Cathryn and Barry, Eilis}, publisher = {Irish Centre for European Law and The Equality Authority}, address = {Dublin}, isbn = {9781897606360}, publisher = {Hertie School}, pages = {117 -- 213}, language = {en} } @incollection{Costello, author = {Costello, Cathryn}, title = {Sport \& Equality}, series = {Sports and the Law}, booktitle = {Sports and the Law}, editor = {Cox, Neville and Schuster, Alex and Costello, Cathryn}, publisher = {First Law}, address = {Dublin}, isbn = {9781904480228}, publisher = {Hertie School}, pages = {457 -- 495}, language = {en} } @incollection{Costello, author = {Costello, Cathryn}, title = {Gender Equalities and the European Union Charter of Fundamental Rights}, series = {Economic and Social Rights under the Charter of Fundamental Rights of the European Union}, booktitle = {Economic and Social Rights under the Charter of Fundamental Rights of the European Union}, editor = {Hervey, Tamara and Kenner, Jeff}, publisher = {Hart Publishing}, isbn = {9781841130958}, publisher = {Hertie School}, pages = {111 -- 138}, language = {en} } @article{CostelloBriddick, author = {Costello, Cathryn and Briddick, Catherine}, title = {Introduction to the Symposium on Undoing Discriminatory Borders}, series = {AJIL Unbound}, volume = {115}, journal = {AJIL Unbound}, doi = {10.1017/aju.2021.49}, pages = {328 -- 332}, abstract = {Migration laws and controls distribute important social goods: the right to enter and reside in a particular state, and the rights that attach to any such residence. Migration controls determine individuals' life chances, including sometimes, their very survival. Migration control is a broad concept. Some practices, such as visa administration, control the possibility of travel by regular means, dictating access to mobility opportunities. Other aspects of migration control, such as the conferral of nationality, determine access to permanent residence rights, and the legal ability to pass on membership of a particular state to one's children. Some forms of migration control are automated and may also be undertaken by private actors, including for profit companies. Others may involve determination or adjudication by individual officials or judges. What unites this broad set of practices is that they comprise important public functions with profound implications for both "outsiders" and "insiders." As Chandran Kukathas argues, migration controls pose a threat to equality within states, challenging the notion that these practices primarily affect imagined "outsiders."1 Migration controls impact both "without" and "within" the state. This introductory essay explores discrimination in migration control and discusses how such treatment may be approached from an international legal perspective. We introduce the symposium's contributors and essays and establish the need for further research on this topic.}, language = {en} } @article{CostelloFoster, author = {Costello, Cathryn and Foster, Michelle}, title = {Race Discrimination Effaced at the International Court of Justice}, series = {AJIL Unbound}, volume = {115}, journal = {AJIL Unbound}, doi = {https://doi.org/10.1017/aju.2021.51}, pages = {339 -- 344}, abstract = {This essay examines the interpretation of the core international treaty dedicated to the elimination of racial discrimination, the International Convention on the Elimination of All Forms of Racial Discrimination (CERD), and in particular how the prohibition on race discrimination applies to the treatment of migrants. This essay is timely, as CERD has travelled from the margins of human rights law to the center of the hottest interstate lawfare. At the time of writing, the first ever interstate dispute before any UN treaty body is before the CERD Committee, and CERD has been invoked in several interstate cases before the International Court of Justice (ICJ). Unfortunately, this crucible of adjudication has not marked an increase in principled interpretation. This essay critiques the recent admissibility ruling of the ICJ in Qatar v. U.A.E. for its marginalization of the prohibition of race discrimination, in particular the failure meaningfully to consider how nationality discrimination may constitute prohibited race discrimination.}, language = {en} } @incollection{CostelloTsourdi, author = {Costello, Cathryn and Tsourdi, Lilian}, title = {The Evolution of EU Law on Refugees and Asylum}, series = {The Evolution of EU Law}, booktitle = {The Evolution of EU Law}, publisher = {Oxford University Press}, address = {Oxford}, publisher = {Hertie School}, abstract = {In this contribution, we explore evolution and stasis in EU asylum law and policy. We identify two tensions at the heart of the CEAS, between the commitment to protection and deflection of protection obligations, and between internal mobility within the EU and the immobilization of asylum seekers and refugees. We note the role of these foundational tensions in generating and exacerbating the 'refugee crisis' of 2015/16. This chapter is premised on a widely-shared understanding of the role of EU asylum policy in that crisis, namely that by illegalizing the travel of asylum seekers and refugees in search of protection, it contributes to the dangerous mass flight, which in turn generates humanitarian and political crises. We then analyse four key dimensions of EU asylum policy in light of these tensions: access to asylum, responsibility-allocation, legislative harmonisation, and institutionalised practical co-operation. Across these four fields, we identify the limits of EU law, and its general stasis, in spite of changes in Treaty telos, law-making processes, and EU enlargement. We briefly consider the role of the CJEU, still very much in the shadow of the ECtHR in asylum, in spite of its numerous rulings on the CEAS. Overall, we demonstrate its fairly minimalist approach in this area, avoidance of controversial cases by dubious use of inadmissibility findings, and failure to catalyse policy changes. Against this backdrop of legislative, political and judicial caution and inertia, we identify two key trends: a move towards greater institutional cooperation, including through the creation of a dedicated agency, the European Asylum Support Office (EASO), and a general flight from law in this policy field. We conclude by considering the likely impact of these trends on EU asylum law.}, language = {en} } @incollection{Costello, author = {Costello, Cathryn}, title = {Reflections on an Anniversary: EU Citizenship at 20}, series = {COMPAS Migration Anthology}, booktitle = {COMPAS Migration Anthology}, publisher = {COMPAS}, isbn = {9781907271045}, publisher = {Hertie School}, abstract = {I am writing this 20 years to the day after the Maastricht Treaty entered into force on 1 November 1993. 'Economic and monetary union' and 'political union' (coordinating foreign policy and 'justice and home affairs') were the main events. The Treaty also grandly announced: 'Citizenship of the Union is hereby established'. The status was for those 'holding the nationality of a Member State'. The rights attached were largely pre-existing and politically underwhelming. Without great fanfare, the weightiest of political concepts was uploaded into the EU Treaty, apparently an afterthought.}, language = {en} } @incollection{Costello, author = {Costello, Cathryn}, title = {Citizenship of the Union: Above Abuse?}, series = {Prohibition of Abuse of Law: A New General Principle of EU Law}, booktitle = {Prohibition of Abuse of Law: A New General Principle of EU Law}, editor = {de la Feria, Rita and Vogenauer, Stefan}, publisher = {Hart Publishing}, isbn = {9781841139388}, publisher = {Hertie School}, pages = {321 -- 354}, language = {en} } @incollection{CostelloBrown, author = {Costello, Cathryn and Brown, Eimear}, title = {The EU and the ECHR before European and Irish Courts}, series = {ECHR and Irish Law}, booktitle = {ECHR and Irish Law}, editor = {Kilkelly, Ursula}, edition = {Second Edition}, publisher = {Jordan Publishing}, isbn = {9781846611247}, publisher = {Hertie School}, pages = {21 -- 73}, abstract = {Following the incorporation of the European Convention on Human Rights Act 2003 into Irish Law, legal developments in areas such as criminal, family and immigration law have raised serious questions of compatibility with the ECHR. Developments in the European Court of Human Rights have highlighted the increasing potential for using the ECHR to positive effect in Irish law. This second edition of ECHR and Irish Law examines the impact of the ECHR on Irish law and considers the actual and potential contribution of the ECHR Act to domestic law in a range of areas. The work begins with research on the impact of the Act and an examination of the relationship between the ECHR, Irish law and EU law.}, language = {en} } @incollection{Costello, author = {Costello, Cathryn}, title = {Implementation of the Procedures Directive (2005/85) in the United Kingdom}, series = {The Procedures Directive: Central Themes, Problem Issues, and Implementation in Selected Member States}, booktitle = {The Procedures Directive: Central Themes, Problem Issues, and Implementation in Selected Member States}, editor = {Zwaan, Karin}, publisher = {Wolf Legal Publishers}, isbn = {9789058503602}, publisher = {Hertie School}, pages = {111 -- 132}, abstract = {On 1 December 2007, the deadline for the implementation of the Directive 2005/85/EC on Minimum Standards on Procedures in Member States for Granting and Withdrawing Refugee Status expired. The lectures on which this book is based were originally given during a seminar on the Procedures Directive that took place in Nijmegen, at the Centre for Migration Law, Radboud University, on Wednesday 12 December 2007. In light of the very substantial level of interest, we have decided to publish a book on the results of the seminar so that people who were not able to attend may benefit from the wealth of knowledge and information which was shared. This book offers insight in all the different aspects of the Procedures Directive.}, language = {en} } @incollection{Costello, author = {Costello, Cathryn}, title = {Child Citizens \& De Facto Deportation: Tender Years, Fragile Ties \& Security of Residence}, series = {Of Courts and Constitutions: Liber Amicorum in Honour of Nial Fennelly}, booktitle = {Of Courts and Constitutions: Liber Amicorum in Honour of Nial Fennelly}, editor = {Bradley, Kieran and Travers, Noel and Whelan, Anthony}, publisher = {Hart Publishing}, address = {London}, isbn = {9781782256014}, doi = {10.5040/9781849468404.ch-025}, publisher = {Hertie School}, pages = {411 -- 432}, abstract = {Citizens may not be deported. That proposition is today axiomatic - the age of banishment is no more. Non-deportability is not just a hallmark of citizenship, but constitutive thereof. Not being deportable means to enjoy security of residence in the polity, to belong legally. Taking that as given, when may the foreign parents of citizens of 'tender years' be deported? This question has been subject of much constitutional controversy in Ireland and at supranational level. Under some approaches, to remove the parents of a young citizen-child is acknowledged as 'de facto deportation' of the children, as it means that the child's right of residence is ineffective or at best only to be exercised under conditions that are themselves a denial of rights. Yet, that approach is permitted under many Constitutions. The present contribution examines this issue, illustrating the wax and wane of domestic constitutional, EU and ECHR protections. Its purpose is not an exhaustive survey of the case law, but rather to identify the different approaches within and across the different systems.}, language = {en} } @incollection{CostelloMorenoLax, author = {Costello, Cathryn and Moreno-Lax, Violeta}, title = {The Extraterritorial Application of the EU Charter of Fundamental Rights: From Territoriality to Facticity, the Effectiveness Model}, series = {Commentary on the EU Charter of Fundamental Rights}, booktitle = {Commentary on the EU Charter of Fundamental Rights}, editor = {Peers, Steve and Hervey, Tamara and Kenner, Jeff and Ward, Angela}, publisher = {Hart Publishing}, address = {London}, doi = {10.5771/9783845259055_1700}, publisher = {Hertie School}, pages = {1700 -- 1727}, language = {en} } @incollection{Costello, author = {Costello, Cathryn}, title = {Article 33: Family \& Professional Life}, series = {The EU Charter of Fundamental Rights - A Commentary}, booktitle = {The EU Charter of Fundamental Rights - A Commentary}, editor = {Peers, Steve and Tamara, Hervey and Kenner, Jeff and Ward, Angela}, publisher = {Hart Publishing}, address = {London}, isbn = {9783845259055}, doi = {10.5771/9783845259055_934}, publisher = {Hertie School}, pages = {934 -- 969}, language = {en} } @incollection{Costello, author = {Costello, Cathryn}, title = {Strategic Litigation to Vindicate the Rights of Refugees and Migrants: Pyrrhic Perils and Painstaking Progress}, series = {Legal Cases That Changed Ireland}, booktitle = {Legal Cases That Changed Ireland}, editor = {Bacik, Ivana and Rogan, Mary}, publisher = {Clarus Press}, address = {Dublin}, isbn = {9781905536856}, publisher = {Hertie School}, language = {en} } @incollection{Costello, author = {Costello, Cathryn}, title = {The Search of the Outer Edges of Non-refoulement in Europe}, series = {Human Rights and the Refugee Definition: Comparative Legal Practice and Theory}, booktitle = {Human Rights and the Refugee Definition: Comparative Legal Practice and Theory}, editor = {Burson, Bruce and Cantor, David James}, publisher = {Brill | Nijhoff}, address = {Leiden, Netherlands}, isbn = {978-90-04-28858-4}, doi = {/10.1163/9789004288591}, publisher = {Hertie School}, pages = {180 -- 209}, abstract = {The purpose of this chapter is to examine the relationship between the prohibition on refoulement under human rights law (in particular under the European Convention on Human Rights and Fundamental Freedoms (ECHR)) and protections under international refugee law. It illustrates that the two systems, human rights and refugee law, develop their protections in different modes. I illustrate this divergent development as a riposte to the claim that non-refoulement under human rights law effectively broadens the protection against refoulement in refugee law. Of course, in some ways, that claim is correct, but in other respects human rights non-refoulement is highly limited, particular as regards which rights violations will lead to protection against return. Currently, it tends to focus on Article 3 ECHR, the right not to be subjected to torture, inhuman and degrading treatment. The chapter critiques the outer edges of human rights non-refoulement, in particular the ECtHR's 'flagrant breach' caselaw.}, language = {en} } @incollection{CostelloHancox, author = {Costello, Cathryn and Hancox, Emily}, title = {The Recast Asylum Procedures Directive: Caught between the Sterotypes of the Abusive Asylum-Seeker and the Vulnerable Refugee}, series = {Reforming the Common European Asylum System: The New European Refugee Law}, booktitle = {Reforming the Common European Asylum System: The New European Refugee Law}, editor = {Chetail, Vincent and Philippe, De Bruycker and Maiani, Francesco}, publisher = {Brill Nijhoff}, address = {Leiden, Netherlands}, isbn = {9789004308664}, doi = {10.1163/9789004308664}, publisher = {Hertie School}, pages = {375 -- 445}, abstract = {This piece provides a detailed analysis of the Recast Asylum Procedures Directive (Recast APD). Although we are now two decades into harmonization of asylum procedures at the European Union (EU) level, we begin in Part 2 by revisiting the rationale for this process. We contend that the most persuasive rationale for procedural harmonization, in an EU legally committed to refugee protection, is to ensure fair procedures, and to prevent a race to the bottom in procedural standards. Efficiency must serve fairness, not vice versa. The original Asylum Procedures Directive (APD) failed to meet this aim by a long margin. The Recast APD is the product of the new, post-Lisbon legislative environment, so as Part 3 suggests, it comes with high hopes for improvement, particularly given the Parliament's relatively new role as co-legislator on asylum matters. Our analysis reveals that the Recast APD contains many improvements on its predecessor, but overall our assessment is mixed, particularly if we assess it in terms of the objective of setting clear basic minimum standards of fairness. We attempt to explain this ambivalent outcome by suggesting that the Directive reflects two competing stereotypical views of the asylum seeker. On the one hand, there is a strong notion that asylum procedures must work to weed out 'abusive' claims. In contrast, there is also a strong acknowledgement that some asylum seekers are particularly vulnerable or have special needs (as will be seen, different terminologies are used in different contexts). As we argue, these stereotypes create complexity, and crowd out the basic notion of refugee status determination (RSD) as a process for recognising refugees, on the assumption that many (although of course not all) of those who apply will be so recognised.}, language = {en} } @incollection{FreedlandCostello, author = {Freedland, Mark and Costello, Cathryn}, title = {Migrants at Work and the Division of Labour Law}, series = {Migrants at Work: Immigration and Vulnerability in Labour Law}, booktitle = {Migrants at Work: Immigration and Vulnerability in Labour Law}, editor = {Costello, Cathryn and Freedland, Mark}, publisher = {Oxford University Press}, address = {Oxford}, isbn = {9780198714101}, doi = {10.1093/acprof:oso/9780198714101.003.0001}, publisher = {Hertie School}, pages = {1 -- 28}, abstract = {This is the opening chapter of the edited collection Costello \& Freedland (eds) Migrants at Work: Immigration and Vulnerability in Labour Law (OUP, 2014). Drawing on the wide-ranging contributions to that collection, it identifies the intersection between migration law and labour law, and explores the analytical and normative significance of that intersection. The fact of immigration, and more particularly the various kinds of status which migration law accords to immigrants, are a source of divisiveness in labour law. Existing divisions within labour law, both between labour law's objectives and its subjects, are exacerbated, and new divisions created. We do not posit the figure of the migrant as vulnerable, but rather identify how migration law creates vulnerability by distorting the employment relationship. In particular, migration law often increases the dependency between worker and employer, and exacerbates the precariousness of the relationship. We identify the unresolved normative tension between the objectives of expanding employers' access to migrant workers; protecting the employment prospects and conditions of local worker; and acknowledging the importance of migration for the life chances and even, in some instances, survival of migrants. Various regulatory strategies to overcome these tensions and heal these divisions are explored, across migration, human rights and labour law.}, language = {en} } @incollection{Costello, author = {Costello, Cathryn}, title = {Migrants and Forced Labour: A Labour Law Response}, series = {The Autonomy of Labour Law}, booktitle = {The Autonomy of Labour Law}, publisher = {Hart Publishing}, address = {Oxford}, isbn = {9781782254645}, publisher = {Hertie School}, abstract = {In this chapter I illustrate, that immigration law, the immigration process and labour market structures may interact to create vulnerability to forced labour, drawing on empirical studies in the UK. Section II begins with some reflection on labour law's autonomy. Section III seeks to clarify 'forced labour'. I examine in turn the binary between 'free' and 'unfree' labour in political economy, and the notion of a continuum from free labour to the ultimate form of unfreedom, slavery. While both the binary and continuum approaches are illuminating, neither approach entirely befits the legal task of identifying the human rights violation that is forced labour. The distinct legal labels of 'slavery', 'servitude' and 'forced labour' are legal concepts embodying distinctive institutional forms of work relation. This part also explores how prohibitions on trafficking, in contrast, introduce a distinctive, potentially distortive focus on migration control and criminalization into this field. In light of the preceding discussion, Section IV examines how the migration process and immigration law create fertile conditions for forced labour. Some features of immigration law, such as precarious and irregular migration status are liable to increase dependency in work relations, which can induce domination. However, this part also considers how those with secure migration status, namely EU citizens in the UK, are also vulnerable to forced labour. In light of this analysis, Section V then critiques the current legal responses to forced labour. These responses should be of concern to labour lawyers, as they obscure general labour rights concerns, and the regulatory conditions that are fertile for forced labour. The UK exemplifies the tendency to obscure labour law concerns, with a Bill on 'modern slavery' going through Parliament at the time of writing, proposing life sentences for those convicted of human trafficking, slavery, forced labour and domestic servitude. The criminal approach focuses on the outcome (the forced labour itself), rather than understanding the laws, practices and regulatory gaps that set up the vulnerability to forced labour. Accordingly, I contrast this criminal law approach with the labour law approach, taking into account the 2014 Protocol to the ILO Convention on Forced Labour. A third approach focuses on human rights law. As currently interpreted, the human rights approach is parasitic on the criminal law approach. I argue that a more progressive (ie orthodox labour law) interpretation of human rights law on forced labour is appropriate and necessary. A labour law approach should ideally entail three main elements, which are briefly sketched here. First, it should insulate labour rights from migration status. Secondly, it should regulate labour intermediaries. Thirdly, it should develop better collective and institutional protections for labour rights. Evidently this is not labour law as we find it in the UK today. However, the evidence of extreme labour exploitation and forced labour demands an urgent revisitation of the norms and institutions of labour law.}, language = {en} } @book{Costello, author = {Costello, Cathryn}, title = {The Human Rights of Migrants and Refugees in European Law}, publisher = {Oxford University Press}, address = {Oxford}, isbn = {9780199644742}, doi = {10.1093/acprof:oso/9780199644742.001.0001}, publisher = {Hertie School}, pages = {400}, abstract = {This book examines key aspects of European Union (EU) law on immigration and asylum, where EU standards overlap with human rights protections and international refugee law. It focuses on questions of migration status and security of residence, family migration, refugee protection, and immigration detention. The uniting theme is the interaction between established human rights norms, in particular the European Convention on Human Rights (ECHR) and EU law. It thus provides a scholarly analysis of EU and ECHR migration and refugee law, including the post-Amsterdam legislative measures and their recasts, and the Court of Justice's key post-Amsterdam rulings and corresponding Strasbourg case law. In so doing, it provides important insights into the roles of the Court of Justice of the European Union (CJEU) and the European Court of Human Rights (ECtHR) as generators of migrant rights, aiding understanding of their positions and interactions with each other. Integrating doctrinal, empirical, and theoretical material on social membership, global justice, and the construction of 'illegality' in migration law into the EU context, it provides a panoramic account of the EU's role in determining who may reside in the EU, and under what terms.}, language = {en} } @book{BoggCostelloDaviesetal., author = {Bogg, Alan and Costello, Cathryn and Davies, A.C.L. and Mellon, Andrew W.}, title = {Research Handbook on EU Labour Law}, publisher = {Edward Elgar Publishing}, address = {Cheltenham, UK and Northampton, MA}, isbn = {9781783471119}, publisher = {Hertie School}, pages = {608}, abstract = {Research Handbook on EU Labour Law features contributions from leading scholars in the field. Part I addresses cross-cutting themes, such as the relationship between EU law and national law, the role of human rights in EU labour law, and the impact of austerity measures. In Part II, the contributors focus on topics in individual and collective labour law at EU level, including working time and job security. Finally, Part III offers a comprehensive overview of the EU's interventions in equality law.}, language = {en} } @book{BoggCostelloDaviesetal., author = {Bogg, Alan and Costello, Cathryn and Davies, A.C.L. and Adams-Prassl, Jeremias}, title = {The Autonomy of Labour Law}, publisher = {Hart Publishing}, address = {Oxford}, isbn = {9781782254645}, doi = {10.5040/9781474200899}, publisher = {Hertie School}, pages = {304}, abstract = {To what extent is labour law an autonomous field of study? This book is based upon the papers written by a group of leading international scholars on this theme, delivered at a conference to mark Professor Mark Freedland's retirement from his teaching fellowship in Oxford. The chapters explore the boundaries and connections between labour law and other legal disciplines such as company law, competition law, contract law and public law; labour law and legal methodologies such as reflexive governance and comparative law; and labour law and other disciplines such as ethics, economics and political philosophy. In so doing, it represents a cross-section of the most sophisticated current work at the cutting edge of labour law theory.}, language = {en} } @book{Costello, author = {Costello, Cathryn}, title = {Equality in Diversity: The New EC Equality Directives}, editor = {Costello, Cathryn and Barry, Eilis}, publisher = {Irish Centre for European Law}, address = {Dublin}, isbn = {9781897606360}, publisher = {Hertie School}, language = {en} } @book{Costello, author = {Costello, Cathryn}, title = {Fundamental Social Rights: Current Legal Protection and the Challenge of the EU Charter of Fundamental Rights}, editor = {Costello, Cathryn}, publisher = {Irish Centre for European Law}, address = {Dublin}, isbn = {9781897606315}, publisher = {Hertie School}, language = {en} } @article{CostelloMann, author = {Costello, Cathryn and Mann, Itamar}, title = {Border Justice: Migration and Accountability for Human Rights Violations}, series = {German Law Journal}, volume = {21}, journal = {German Law Journal}, number = {1}, doi = {https://doi.org/10.1017/glj.2020.27}, pages = {311 -- 334}, abstract = {This introductory Article sets out the premise of the Special Issue, the entrenched and pervasive nature of human rights violations in the context of migration control and the apparent lack of accountability for such violations. It sets out features of contemporary migration control practices and their legal governance that contribute to this phenomenon, namely the exceptional treatment of migration in international law; the limited scope of international refugee law; and the pervasive use of externalized, delegated migration controls, in particular by the EU and its Member States. The roots of the current condition are traced back to the containment practices that emerged at the end of the Cold War, with the 2015 "crisis" framed both as an illustration of the failures of containment, and a source of further stasis. Following an overview of the contributions that make up the Special Issue, this Article identifies five emergent themes, and suggests further lines of inquiry. These are: the promise and limits of strategic human rights limitations; the role of both international criminal law, and domestic (and regional) tort law in securing accountability; the turn to positive obligations to challenge entrenched features of containment; and the role of direct action in support of and solidarity with those challenging migration controls most directly, refugees and migrants themselves. Rather than offering panaceas, the Article concludes with the identification of further new challenges, notably the role of new technologies in further dissipating lines of accountability for decisions to exclude.}, language = {en} } @article{Costello, author = {Costello, Cathryn}, title = {Overcoming Refugee Containment and Crisis}, series = {German Law Journal}, volume = {21}, journal = {German Law Journal}, number = {1}, doi = {10.1017/glj.2019.89}, pages = {17 -- 22}, abstract = {Imagine a system in which you had to break the law and risk your life in order to enjoy its key right, a right to live lawfully in a political and legal community. That is the open secret at the heart of the so-called "Common European Asylum System" ("CEAS"). The EU and its Member States systematically erect barriers for those who would enter to claim asylum, forming part of the system of the containment of refugees in the Global South. Refugee containment is not only a European practice, but many of the policies and practices that are central to refugee containment are of fairly recent European origin. This Article identifies the costs of this refugee containment, not only for refugees and asylum-seekers, but also for Europe itself, its politics, and its adherence to the rule of law in particular. Containment contributed to the events styled as the 2015 refugee crisis in Europe, yet the crisis has generated a more intensified set of containment practices, also likely to backfire. This Article first sets out the costs of containment, and second suggests how Europe might overcome the containment-induced crisis and work to dismantle at least some aspects of containment.}, language = {en} } @article{Costello, author = {Costello, Cathryn}, title = {Refugees and (Other) Migrants: Will the Global Compacts Ensure Safe Flight and Onward Mobility for Refugees?}, series = {International Journal of Refugee Law}, volume = {30}, journal = {International Journal of Refugee Law}, number = {4}, doi = {10.1093/ijrl/eey060}, pages = {643 -- 649}, abstract = {Conclusion: Hannah Arendt's 1943 essay, 'We Refugees', begins: 'In the first place, we don't like to be called "refugees". We ourselves call each other "newcomers" or "immigrants"'. The essay demonstrates that for the refugees, of whom she was one, the label 'immigrant' was preferable. It reflected a desire to get on and integrate, rather than neediness. That impulse to avoid the 'refugee' label may still be common today, particularly from those keen to avoid rights restriction or stigmatization. However, the 'refugee' label today is also instrumentalized to downplay the protection needs of others - those who may not be recognized as refugees (even though they ought to be), and those who are not refugees in any sense, but nonetheless require international protection. The New York Declaration and the bifurcated Global Compacts risk endorsing an unduly narrow conception of refugeehood, and failing to root out the refugee containment that taints the global refugee regime. However, I also offer a more constructive reading, emphasizing the overarching concept of international protection, and obligations to avoid harm in migration governance.}, language = {en} } @article{Costello, author = {Costello, Cathryn}, title = {Safe Country? Says Who?}, series = {International Journal of Refugee Law}, volume = {28}, journal = {International Journal of Refugee Law}, number = {4}, doi = {10.1093/ijrl/eew042}, pages = {601 -- 622}, abstract = {In 1991, Professor Guy S Goodwin-Gill reflected on the emerging safe country of origin (SCO) practices in an editorial in the International Journal of Refugee Law, entitled 'Safe Country? Says Who?'. This article reflects on developments regarding SCO practices since his prescient editorial, focusing on both Europe, where they originated, and Canada. The article first explores how SCO practices have developed in European law and practice since their inception, including the role of European courts in assessing their legality. This European experience is then contrasted with Canada's short-lived experiment with its analogous Designated Country of Origin (DCO) system, which, in 2015, was deemed unconstitutional by the Federal Court of Canada.}, language = {en} } @incollection{CostelloFoster, author = {Costello, Cathryn and Foster, Michelle}, title = {Non-refoulement as custom and jus cogens? Putting the prohibition to the test}, series = {Netherlands Yearbook of International Law}, volume = {46}, booktitle = {Netherlands Yearbook of International Law}, publisher = {Hertie School}, pages = {273 -- 327}, abstract = {The norm of non-refoulement is at the heart of the international protection of refugees yet there remains a lack of consensus as to its status. In this contribution, we examine the question whether it has attained the status of a jus cogens norm. Adopting the methodology of 'custom plus' we first examine whether non-refoulement has attained the status of custom, concluding that widespread state practice and opinio juris underpin the view that it is clearly a norm of customary international law. Moreover, much of this evidence also leads to the conclusion that it is ripe for recognition as a norm of jus cogens, due to its universal, non-derogatory character. In other words, it is a norm accepted and recognised by the international community of states as a whole as a norm from which no derogation is permitted. The chapter then examines the consequences for its recognition as jus cogens, exploring some of the many ways in which jus cogens status may have meaningful implications for the norm of non-refoulement.}, language = {en} } @article{CostelloMouzourakis, author = {Costello, Cathryn and Mouzourakis, Minos}, title = {EU law and the detainability of asylum-seekers}, series = {Refugee Survey Quarterly}, volume = {35}, journal = {Refugee Survey Quarterly}, number = {1}, doi = {10.1093/rsq/hdv020}, pages = {47 -- 73}, abstract = {This article examines detention of asylum-seekers, more specifically how European Union (EU) law simultaneously constructs the asylum-seeker as a detainable subject, whilst also limiting states' powers of detention. The power to detain is limited by international refugee and human rights law, but EU law sets more stringent standards. While international refugee law regards the asylum-seeker as a presumptive refugee, EU law seems to take a different view. Nowadays, the legal and physical rite of passage from irregular migrant to asylum-seeker to refugee defines the predicament of refugees who seek protection in the EU. Asylum-seekers are vulnerable to detention as irregular entrants, when they are in transit in search of effective protection, and if they become deportable under the Dublin System. Coercive forms of detention are, too glibly in our view, assumed to be permitted to ensure they cooperate with identification and registration processes. The chapter aims to problematise this detainability of asylum-seekers, examining in particular how their increasing deportability and transferability may increase their detainability. Drawing on empirical examples from the treatment of refugees arriving in the EU in 2015, it suggests that the EU limits on detention need further implementation and institutionalisation.}, language = {en} } @article{Costello, author = {Costello, Cathryn}, title = {Immigration Detention: The Grounds Beneath our Feet}, series = {Current Legal Problems}, volume = {68}, journal = {Current Legal Problems}, number = {1}, doi = {10.1093/clp/cuv015}, pages = {143 -- 177}, abstract = {Detention as part of migration control is sometimes portrayed as a 'necessary adjunct' of the state's power to control immigration. This characterization is a masking device, obscuring the grounds of detention (or the lack thereof) from proper scrutiny. It has convincingly been argued that human rights law fails to scrutinize the necessity of immigration detention. Many scholars have pointed out the anomalous approach to assessing the legal justifications for immigration detention, compared with other forms of deprivation of liberty, which are more powerfully constrained by human rights law. Yet, cogent as this critique is, it sometimes fails to interrogate the related questions concerning the legal grounds of detention. A ground is a particular form of legal reason, which both explains and justifies the official action in question. By examining the question of grounds, this article aims to elucidate the manner in which immigration law itself produces reasons to detain, and by doing so creates detainable subjects, migrants. Basic liberty-protective principles and practices developed in other areas of law are notably absent. This state of affairs is not inevitable, and legal alternatives are within reach.}, language = {en} } @article{Costello, author = {Costello, Cathryn}, title = {The Ruling of the Court of Justice in NS/ME on the fundamental rights of asylum seekers under the Dublin Regulation: Finally, an end to blind trust across the EU?}, series = {Asiel- en Migrantenrecht}, journal = {Asiel- en Migrantenrecht}, pages = {83 -- 92}, language = {en} } @article{Costello, author = {Costello, Cathryn}, title = {Courting Access to Asylum in Europe: Recent Supranational Jurisprudence Explored}, series = {Human Rights Law Review}, volume = {287}, journal = {Human Rights Law Review}, doi = {10.1093/hrlr/ngs011}, pages = {287 -- 339}, abstract = {This article explores access to refugee protection, which in practice means access to a place of refuge, in light of various barriers to protection erected by European States. First, European States increasingly extend their border controls beyond their territorial borders and co-operate in order to prevent those seeking protection from reaching their territory. Yet, legal obligations, in particular the principle of non-refoulement, may continue to apply to these activities, as the concept of 'jurisdiction' in human rights law develops. Second, they engage a further, diametrically opposed move, where they purport to act as a single zone of protection, and allocate responsibility for asylum claimants in a manner that also hinders access to protection. The aim of this article is to explore the recent responses of Europe's two supranational courts, the European Court of Human Rights (ECtHR or 'Strasbourg') and the Court of Justice of the European Union (CJEU or 'Luxembourg'), in confronting these attempts to limit and manage access to protection in the EU. Its focus is the ECtHR ruling in Hirsi Jamaa v Italy (condemning Italy's pushback of migrants intercepted on boats in the Mediterranean to Libya), as well as that in MSS v Belgium and Greece (concerning the Dublin system for allocation of responsibility for processing asylum claims) and the subsequent CJEU ruling in NS/ME.}, language = {en} } @article{Costello, author = {Costello, Cathryn}, title = {Human Rights and the Elusive Universal Subject: Immigration Detention under International Human Rights and EU Law}, series = {Indiana Journal of Global Legal Studies}, volume = {19}, journal = {Indiana Journal of Global Legal Studies}, number = {1}, doi = {10.2979/indjglolegstu.19.1.257}, pages = {257 -- 303}, abstract = {The right to liberty is ubiquitous in human rights instruments, in essence protecting all individuals from arbitrary arrest and detention. Yet, in practice, immigration detention is increasingly routine, even automatic, across Europe. Asylum seekers in particular have been targeted for detention. While international human rights law limits detention, its protections against immigration detention are weaker than in other contexts, as the state's immigration control prerogatives are given sway. In spite of the overlapping authority of international and regional human rights bodies, the caselaw in this field is diverse. Focusing on the U.N. Human Rights Committee, the European Court of Human Rights, and the Court of Justice of the European Union, this Article explores how greater interaction between these bodies could produce more rights-protective standards.}, language = {en} } @article{Costello, author = {Costello, Cathryn}, title = {Metock: Free Movement and "Normal Family Life" in the Union}, series = {Common Market Law Review}, volume = {46}, journal = {Common Market Law Review}, number = {2}, pages = {587 -- 622}, abstract = {This article examines the ECJ's ruling, following an exceptional accelerated procedure, in Case C-127/08 Metock, of 25 July 2008. The article praises the Court's boldness in abandoning the "prior lawful residence" requirement for residence rights of third-country national (TCN) family members of migrant EU Citizens, explicitly overruling Akrich on this issue. Its reasoning is bold, yet economical, grounded in the 2004 Citizenship Directive and right to free movement of EU citizens. However, the article is critical of the failure to publish the Opinion of AG Maduro and the sparse reasoning in the case. The ECJ's fundamental rights reticence is particularly striking, in particular as its conception of the residence rights inherent in "normal family life" diverges from the analogous protections under Article 8 ECHR. Although Metock was an easy transborder case concerning migrant EU citizens resident in another EU Member State, the article also argues that the denial of the EC dimension to the family reunification claims of static EU citizens against their home Member States is increasingly untenable.}, language = {en} } @article{CostelloDavies, author = {Costello, Cathryn and Davies, Gareth}, title = {The Case Law of the Court of Justice in the Field of Sex Equality Since 2000}, series = {Common Market Law Review}, volume = {43}, journal = {Common Market Law Review}, number = {6}, pages = {1567 -- 1616}, abstract = {This article examines developments in EC sex equality law from 1 April 2000 to 4 October 2006, continuing this journal's tradition of periodic reviews of developments in this field. We focus on the case law of the European Court of Justice, along with one judgment of the EFTA court, taking into account the changing legislative and constitutional context. In the period under review, this context has changed in several ways.}, language = {en} } @article{Costello, author = {Costello, Cathryn}, title = {The Bosphorus Ruling of the European Court of Human Rights: Fundamental Rights and Blurred Boundaries in Europe}, series = {Human Rights Law Review}, volume = {6}, journal = {Human Rights Law Review}, number = {1}, doi = {10.1093/hrlr/ngi038}, pages = {87 -- 130}, abstract = {The recent case of Bosphorus Airlines v Ireland provided the European Court of Human Rights (ECtHR) with an opportunity to refine further its relationship with the EU. In particular, the ECtHR was called upon to clarify when States could be held responsible for actions taken under the banner of the EU. This article examines the status quo prior to the Bosphorus judgment, and then scrutinises the judgment itself, focusing particularly on the use and scope of the doctrine of 'equivalent protection' to determine State responsibility. The doctrine as outlined in Bosphorus is applied to some likely scenarios involving EU action and its relative merits and disadvantages are discussed. The article also briefly addresses the further global implications of the judgment, namely for the legal accountability of the UN Security Council and the ongoing issue of responsibility of international organisations under international law.}, language = {en} } @article{Costello, author = {Costello, Cathryn}, title = {Ireland's Nice Referenda}, series = {European Constitutional Law Review}, volume = {1}, journal = {European Constitutional Law Review}, number = {3}, doi = {10.1017/S1574019605003573}, pages = {357 -- 382}, abstract = {Part One: Referenda required to amend Irish Constitution. Referenda on accession to EEC, the Single European Act, Maastricht and Amsterdam. Development by courts of rules for fairness of referendum campaigns. Referendum Acts and Referendum Commission. Part Two: First Nice Referendum dominated by euro-anxiety, Irish neutrality and enlargement. Second referendum on same subject not unusual and acceptable according to domestic criteria. Concessions and clarifications. Effect on the Convention on the Future of Europe. Part Three: implications for the Constitutional Treaty.}, language = {en} } @article{Costello, author = {Costello, Cathryn}, title = {The Asylum Procedures Directive and the Proliferation of Safe Country Practices: Deterrence, Deflection and the Dismantling of International Protection}, series = {European Journal of Migration Law}, volume = {7}, journal = {European Journal of Migration Law}, number = {1}, doi = {10.1163/1571816054396842}, pages = {35 -- 69}, language = {en} } @article{CostelloDrake, author = {Costello, Cathryn and Drake, Sara}, title = {State liability in damages in the Irish and UK Courts}, series = {European Public Law}, volume = {9}, journal = {European Public Law}, pages = {366 -- 389}, language = {en} } @article{Costello, author = {Costello, Cathryn}, title = {The Preliminary Reference Procedure and the 2000 Intergovernmental Conference}, series = {Dublin University Law Journal}, volume = {21}, journal = {Dublin University Law Journal}, pages = {40 -- 66}, language = {en} } @article{Costello, author = {Costello, Cathryn}, title = {Market Access All Areas - The Treatment of Non-discriminatory Barriers to the Free Movement of Workers}, series = {Legal Issues on Economic Integration}, volume = {27}, journal = {Legal Issues on Economic Integration}, number = {3}, pages = {267 -- 277}, language = {en} } @incollection{Costello, author = {Costello, Cathryn}, title = {Victim or Perpetrator? The Criminalised Migrant and the Idea of 'Harm' in the Labour Market Context}, series = {Criminality at Work}, booktitle = {Criminality at Work}, editor = {Blogg, Alan and Collins, Jennifer and Freedland, Mark and Herring, Jennifer}, publisher = {Oxford University Press}, address = {Oxford}, isbn = {9780198836995}, doi = {10.1093/oso/9780198836995.003.0016}, publisher = {Hertie School}, pages = {309 -- 326}, abstract = {This chapter provides powerful arguments against the criminalization of irregular migration. It does so by testing the extensive criminalization of irregular migrants against standard liberal principles of criminalization. The chapter argues that it is very difficult to identify any direct wrongs or harms to others that arise in virtue of 'irregular' migration. Furthermore, a malum prohibitum offence cannot be justified. Against these weak arguments in favour of criminalization, this chapter identifies compelling reasons against criminalization. Criminalization leads to further criminalization, which ultimately undermines both migrants' and local workers' fundamental rights. It also blocks discussion of one particularly worker-protective regulatory response to irregular migration, namely regularization. In truth, the criminalization of migrants represents a context where there has been a decisive rupture with liberal principles of criminalization.}, language = {en} } @incollection{Costello, author = {Costello, Cathryn}, title = {On Refugeehood and Citizenship}, series = {Oxford Handbook of Citizenship}, booktitle = {Oxford Handbook of Citizenship}, editor = {Shachar, Ayelet and Baub{\"o}ck, Rainer and Bloemraad, Irene and Vink, Maarten}, publisher = {Oxford University Press}, address = {Oxford}, isbn = {9780198805854}, doi = {10.1093/oxfordhb/9780198805854.013.31}, publisher = {Hertie School}, abstract = {This chapter explores the relationship between citizenship and refugeehood. In particular, it examines the extent to which loss of meaningful citizenship defines the predicament of the refugee. It then examines the status of refugee and refugee rights. Thirdly, it considers how refugeehood comes to an end, in particular the role of citizenship (new or restored) in ending refugeehood. Citizenship is formally viewed as bringing refugeehood to an end, whether that emerges as return to the home country or naturalisation in a new state. However, in practice, a new citizenship for many refugees remains out of reach, and the status of refugee often becomes an intergenerational carrier of civic and social exclusion. The reflects the realities of refugee containment, in contrast to the vision of shared responsibility that underpins the 1951 Convention on the Status of Refugees and the refugee regime.}, language = {en} } @incollection{Costello, author = {Costello, Cathryn}, title = {EU Migration and Asylum Law: A Labour Law Perspective}, series = {Research Handbook on EU Labour Law}, booktitle = {Research Handbook on EU Labour Law}, publisher = {Edward Elgar Publishing}, address = {Cheltenham, UK and Northampton, MA}, doi = {10.4337/9781783471126.00020}, publisher = {Hertie School}, pages = {299 -- 335}, abstract = {The purpose of this chapter is survey EU migration and asylum law from a labour law perspective. A labour law perspective is concerned with the work relationship, and focuses not only on the worker, but also the employing organisation and any intermediary involved in labour supply. Examining EU migration and asylum law using this multifaceted prism of labour law reveals that EU migration and asylum law has a profound impact on labour law. That impact may be understood has having three different dimensions. (1) It affects the supply and demand for migrant workers. In this sense, migration law can be a form of labour market regulation. (2) migration and asylum law create different migration statuses that in turn determine, at least in part, labour rights. The move to re-introduce status over contract as a determinant of workers' rights divides the subjects of labour law. (3) Migration status and the fact of migration may be risk factors for labour exploitation. In order to examine these three facets, the particular role of the EU in this field must be explained. Part 1 provides a sketch of the role of states and markets in the regulation of migration. It sets the scene to understand the profound but limited role of the EU in this context. Part 2 examines the status of EU Citizenship, and the forms of liberalised free movement in the EU's internal market, that principally benefit those who hold the nationality of an EU Member State. I also consider two important derivative statuses for so-called third country nationals (TCNs), who gain EU rights as family members of EU Citizens and so-called 'posted workers'. Part 3 concerns those TCNs who require permission to live and work in the EU, and provides an overview of some of the different statuses created by EU law, and their labour rights content. Part 4 explores the notion of 'irregular status', and the EU Employer Sanctions Directive and the ruling of the Court of Justice of the European Union (CJEU) in T{\"u}mer contrasted. In the final part, Part 6, I briefly highlight some features of migration status that are risk factors for labour exploitation. A recent EU Fundamental Rights Agency Report details the links between migration and extreme labour exploitation. Current responses focus unhelpfully on trafficking, or on forced labour, and look in particular to criminal law for solutions. This chapter recalls some responses from within labour law. It is suggested that further research is required into the question of which regulatory approaches and combinations thereof work best to protect migrant workers from exploitation.}, language = {en} } @incollection{CostelloMouzourakis, author = {Costello, Cathryn and Mouzourakis, Minos}, title = {The Common European Asylum System - Where did it all go wrong?}, series = {The European Union as an Area of Freedom, Security and Justice}, booktitle = {The European Union as an Area of Freedom, Security and Justice}, editor = {Fletcher, Maria and Herlin-Karnell, Ester and Matera, Claudio}, publisher = {Routledge}, address = {Abingdon, Oxford}, isbn = {9780367193454}, doi = {10.4324/9781315738284}, publisher = {Hertie School}, pages = {263 -- 300}, language = {en} } @incollection{CostelloFreedland, author = {Costello, Cathryn and Freedland, Mark}, title = {Seasonal Workers and Intra-Corporate Transferees in EU Law: Capital's Handmaidens?}, series = {Temporary Labour Migration in the Global Era: The Regulatory Challenges}, booktitle = {Temporary Labour Migration in the Global Era: The Regulatory Challenges}, editor = {Howe, Joanna and Owens, Rosemary}, publisher = {Hart Publishing}, address = {Oxford and Portland, Oregon}, isbn = {9781509906291}, doi = {10.5040/9781509906307.ch-002}, publisher = {Hertie School}, pages = {43 -- 64}, abstract = {This chapter compares and contrasts two recent European enactments on particular forms of temporary labour migration: seasonal work and intra-corporate transfers (ICTs). Both the Seasonal Workers Directive (SWD)1 and the ICT Directive (ICTD)2 were adopted in 2014. They are typical of the EU's piecemeal approach to labour migration, which creates a multiplicity of distinct statuses.3 We frame the comparison in light of our previous work examining the impact of migration law on labour law (section II). By way of general contribution to this collection's themes, we also offer some observations on the challenges of regulating temporary labour migration under current conditions of globalisation (section III), and seek to explain some of the specificities of the EU's role in regulating immigration (section IV)}, language = {en} } @article{CostelloFoster, author = {Costello, Cathryn and Foster, Michelle}, title = {(Some) refugees welcome: When is differentiating between refugees unlawful discrimination?}, series = {International Journal of Discrimination and the Law}, volume = {22}, journal = {International Journal of Discrimination and the Law}, number = {3}, doi = {10.1177/13582291221116476}, pages = {244 -- 280}, abstract = {Europe's extraordinary response to those fleeing the Russian invasion of Ukraine in February 2022 has prompted many criticisms of Europe's treatment of other refugees, and indeed people of colour and members of ethnic minorities fleeing Ukraine.  While stark, this differentiated response in not unusual:  The global refugee regime treats different refugees differently, as a matter of course.     Refugees often encounter racialized migration controls, and systems which privilege some refugees over others.   The article seeks to clarify when these practices violate the international legal prohibitions on discrimination on grounds of race and nationality.    To do so, it focuses on race discrimination in general international human rights law, clarifying the interaction between general human rights principles and instruments, and the specialist instrument in the field, the International Convention on the Elimination of all Forms of Racial Discrimination.    We identify how differences in treatment on grounds of nationality may engage the prohibition on race discrimination both directly (in particular when nationality equates to national origin) or indirectly. Concerning nationality discrimination, the article focuses in particular on the added value of Article 3 of the 1951 Convention on the Status of Refugees, which obliges states to 'apply the provisions of this Convention to refugees without discrimination as to race, religion or country of origin.'  We examine Article 3 both within the overall scheme of the Refugee Convention and as a source to guide interpretation of international human rights norms.}, language = {en} } @incollection{MouzourakisCostello, author = {Mouzourakis, Minos and Costello, Cathryn}, title = {Effective judicial protection of migrants and refugees? The role of Europes supranational courts in protecting and generating rights}, series = {Research Handbook on EU Migration and Asylum Law}, booktitle = {Research Handbook on EU Migration and Asylum Law}, editor = {Tsourdi, Evangelia and De Bruycker, Philippe}, publisher = {Edward Elgar Publishing}, address = {Cheltenham, UK}, isbn = {9781786439628}, doi = {10.4337/9781786439635.00010}, publisher = {Hertie School}, pages = {79 -- 97}, abstract = {This chapter examines the caselaw of the European Court of Human Rights (ECtHR) and Court of Justice of the European Union (CJEU) on access to protection, the Dublin system and presumptions of 'safety', and detention, in order to provide critical insights into the concept of effective judicial protection in Europe since the so-called 'refugee crisis' of 2015. The two courts have not provided effective protection in a transformative sense, in that they have not adopted progressive rulings to overcome the crisis-inducing elements of European asylum and migration law. Instead, they have deferred to governmental accounts of 'crisis' and accepted dubious factual and legal arguments. Against this backdrop, we note that the need for effective judicial protection in even a minimal sense, to hold the line on the most basic of rights in this field - protection against refoulement and arbitrary detention - is more acute than ever, and may also be in decline.}, language = {en} } @misc{CostelloFreedland, author = {Costello, Cathryn and Freedland, Mark}, title = {Migrants at Work: Immigration and Vulnerability in Labour Law}, publisher = {Oxford University Press}, address = {Oxford}, isbn = {9780198714101}, doi = {10.1093/acprof:oso/9780198714101.001.0001}, pages = {512}, abstract = {This collection has its origins in the recognition that there is a highly significant and under-considered intersection and interaction between migration law and labour law. It is the culmination of a collaborative project on 'Migrants at Work' funded by the John Fell Fund, the Society of Legal Scholars and the Research Centre at St John's College, Oxford. The collection aims to shed light on the interactions between immigration, migration law, and labour law, in particular how migration status has a bearing on labour relations and the world of work. Contributors to the volume identify the many ways that migration law, as currently designed, divides the objectives of labour law, privileging employers' interests in the supply of labour over worker-protective concerns. In addition, migration law creates a particular form of status, which affects labour relations, thereby dividing the subjects of labour law. While several contributions focus on the UK, other countries examined include Australia, Ireland, Israel, Italy, Germany, Sweden, and the US. References are also made to discrete practices in Brazil, France, Greece, New Zealand, Mexico, Poland, and South Africa. The collection identifies how migration law as currently configured jeopardizessome of the values and institutions of labour law.}, language = {en} } @techreport{SherwoodCostelloMcDonnell, type = {Working Paper}, author = {Sherwood, Angela and Costello, Cathryn and McDonnell, Emilie}, title = {The Displacement Regime Complex: Reform for Protection}, edition = {No. 09}, doi = {10.48462/opus4-5320}, url = {http://nbn-resolving.de/urn:nbn:de:kobv:b1570-opus4-53209}, pages = {32}, abstract = {This working paper aims to examine the 'displacement regime complex', displacement referring to both internally and externally displaced persons, taking into account the competing roles of UNHCR and IOM in both spheres of activity. The title of the paper 'Reform for protection', aims to outline institutional reforms that aim to increase protection for the displaced, informed by binding universal human rights standards, and institutional principles relating to accountability and participation of most affected populations.}, language = {en} } @article{RomanelloNapoliGreenetal., author = {Romanello, Marina and Napoli, Claudia di and Green, Carole and Kennard, Harry and Lampard, Pete and Scamman, Daniel and Walawender, Maria and Ali, Zakari and Ameli, Nadia and Ayeb-Karlsson, Sonja and Beggs, Paul J and Belesova, Kristine and Berrang Ford, Lea and Bowen, Kathryn and Cai, Wenjia and Callaghan, Max and Campbell-Lendrum, Diarmid and Chambers, Jonathan and Cross, Troy J and van Daalen, Kim R and Dalin, Carole and Dasandi, Niheer and Dasgupta, Shouro and Davies, Michael and Dominguez-Salas, Paula and Dubrow, Robert and Ebi, Kristie L and Eckelman, Matthew and Ekins, Paul and Freyberg, Chris and Gasparyan, Olga and Gordon-Strachan, Georgiana and Graham, Hilary and Gunther, Samuel H and Hamilton, Ian and Hang, Yun and H{\"a}nninen, Risto and Hartinger, Stella and He, Kehan and Heidecke, Julian and Hess, Jeremy J and Hsu, Shih-Che and Jamart, Louis and Jankin, Slava and Jay, Ollie and Kelman, Ilan and Kiesewetter, Gregor and Kinney, Patrick and Kniveton, Dominic and Kouznetsov, Rostislav and Larosa, Francesca and Lee, Jason K W and Lemke, Bruno and Liu, Yang and Liu, Zhao and Lott, Melissa and Lotto Batista, Mart{\´i}n and Lowe, Rachel and Odhiambo Sewe, Maquins and Martinez-Urtaza, Jaime and Maslin, Mark and McAllister, Lucy and McMichael, Celia and Mi, Zhifu and Milner, James and Minor, Kelton and Minx, Jan C and Mohajeri, Nahid and Momen, Natalie C and Moradi-Lakeh, Maziar and Morrissey, Karyn and Munzert, Simon and Murray, Kris A and Neville, Tara and Nilsson, Maria and Obradovich, Nick and O'Hare, Megan B and Oliveira, Camile and Oreszczyn, Tadj and Otto, Matthias and Owfi, Fereidoon and Pearman, Olivia and Pega, Frank and Pershing, Andrew and Rabbaniha, Mahnaz and Rickman, Jamie and Robinson, Elizabeth J Z and Rockl{\"o}v, Joacim and Salas, Renee N and Semenza, Jan C and Sherman, Jodi D and Shumake-Guillemot, Joy and Silbert, Grant and Sofiev, Mikhail and Springmann, Marco and Stowell, Jennifer D and Tabatabaei, Meisam and Taylor, Jonathon and Thompson, Ross and Tonne, Cathryn and Treskova, Marina and Trinanes, Joaquin A and Wagner, Fabian and Warnecke, Laura and Whitcombe, Hannah and Winning, Matthew and Wyns, Arthur and Yglesias-Gonz{\´a}lez, Marisol and Zhang, Shihui and Zhang, Ying and Zhu, Qiao and Gong, Peng and Montgomery, Hugh and Costello, Anthony}, title = {The 2023 report of the Lancet Countdown on health and climate change: the imperative for a health-centred response in a world facing irreversible harms}, series = {The Lancet}, volume = {402}, journal = {The Lancet}, number = {10419}, doi = {10.1016/S0140-6736(23)01859-7}, pages = {2346 -- 2394}, language = {en} } @article{CalıCostelloCunningham, author = {{\c{C}}al{\i}, Ba{\c{s}}ak and Costello, Cathryn and Cunningham, Stewart}, title = {Hard Protection through Soft Courts? Non-Refoulement before the United Nations Treaty Bodies}, series = {German Law Journal}, journal = {German Law Journal}, number = {21}, issn = {2071-8322}, doi = {doi:10.1017/glj.2020.28}, pages = {355 -- 384}, abstract = {This Article comparatively analyses how the prohibition of refoulement is interpreted by United Nations Treaty Bodies (UNTBs) in their individual decision-making, where we suggest they act as "soft courts." It asks whether UNTBs break ranks with or follow the interpretations of non-refoulement of the European Court of Human Rights. This investigation is warranted because non-refoulement is the single most salient issue that has attracted individual views from UNTBs since 1990. Moreover, our European focus is warranted as nearly half of the cases concern states that are also parties to the European Convention on Human Rights. Based on a multi-dimensional analysis of non-refoulement across an original dataset of over 500 UNTB non-refoulement cases, decided between 1990-2020, as well as pertinent UNTB General Comments, the Article finds that whilst UNTBs, at times, do adopt a more progressive position than their "harder" regional counterpart, there are also instances where they closely follow the interpretations of the European Court of Human Rights and, on occasion, adopt a more restrictive position. This analysis complicates the view that soft courts are likely to be more progressive interpreters than hard courts. It further shows that variations in the interpretation of non-refoulement in a crowded field of international interpreters present risks for evasion of accountability, whereby domestic authorities in Europe may favor the more convenient interpretation, particularly in environments hostile to non-refoulement.}, language = {en} } @incollection{SherwoodLemayCostello, author = {Sherwood, Angela and Lemay, Isabelle and Costello, Cathryn}, title = {IOM's Immigration Detention Practices and Policies: Human Rights, Positive Obligations and Humanitarian Duties}, series = {IOM Unbound?: Obligations and Accountability of the International Organization for Migration in an Era of Expansion}, booktitle = {IOM Unbound?: Obligations and Accountability of the International Organization for Migration in an Era of Expansion}, editor = {Bradley, Megan and Costello, Cathryn and Sherwood, Angela}, publisher = {Cambridge University Press}, isbn = {9781009184175}, doi = {10.1017/9781009184175.016}, publisher = {Hertie School}, pages = {360 -- 396}, abstract = {This chapter analyses IOM's practices and policies on immigration detention from the 1990s to date, spanning a period of significant change in its approaches to detention. The chapter first distills pertinent international human rights law (IHRL) on migration-related detention, and then examines IOM's normative statements concerning detention. It shows that while IOM generally emphasises international legal standards, it also tends to stress states' 'prerogative' to detain, frame alternatives to detention (ATDs) as a desirable option rather than a legal obligation, and weave an operational role for itself, notably through assisted voluntary returns (AVRs). The chapter then interrogates IOM's involvement in detention through four case studies. These reveal not only IOM's changing role regarding detention, but its enduring part in a global system whereby powerful states and regions seek to contain protection seekers 'elsewhere.' The chapter concludes that, without constitutional and institutional change to ensure it meets its positive human rights obligations, and deeper critical reflection on its humanitarian duties, IOM's practice risks expanding and legitimating detention.}, language = {en} } @techreport{BriddickCostello, type = {Working Paper}, author = {Briddick, Catherine and Costello, Cathryn}, title = {Supreme Judgecraft: Non-Refoulement and the end of the UK-Rwanda 'deal'?}, series = {Verfassungsblog}, journal = {Verfassungsblog}, number = {2023/11/20}, doi = {10.59704/6ac71ea278f0af98}, language = {en} }