Chapter 3: Effective judicial protection of migrants and refugees? The role of Europes supranational courts in protecting and generating rights
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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.

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