@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} } @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} }