Control and Responsibility in European Union Migration Law and Policy – A study of Externalisation and Privatisation

Introduction: Member States of the European Union (“Member State(s)” or “the State(s)”), are long associated with seeking to preserve their authority over migration control and border management. At first glance, the externalisation and privatisation of migration control and border management seem to challenge that narrative. Member States have started to embrace migration control and border management procedures which harness the potential of cooperation with third States and which devolve their authority to private actors. Modern border control is now being enforced at either side of the traditional static external border. Migration control and border management are no longer left behind in the airport after landing; they are increasingly being enforced internally. Likewise, the idea that Member State migration control and border management do not occur before getting on a plane to travel to the European Union (“EU” or “the Union”) territory is also proving to be highly questionable. Nowadays, the who and where of migration control have become increasingly crucial. The questions are: who is it that is implementing a specific function or service of migration control? And, where is it being implemented? These questions have become decisive in the allocation of legal responsibility for any breach of a migrant’s fundamental rights which occurs during the implementation of migration control and border management