ICON S Conference 17 – 19 June 2016 Humboldt University Berlin

Johannes Eichenhofer: An alternative draft to
the german residence act: how everything
changes if exceptionalism of immigration law
can be overcome
German immigration laws have traditionally banned
immigration with a permit reservation. This principle
can be challenged from an EU-law, a human rights and
an integration policy perspective. Sharing these critique
on the current German Immigration Act, a group
of young migration law scholars and lawyers have unified
to draw an alternative draft for a new Immigration
act. This presentation aims to demonstrate the first
thoughts being exchanged within the group. The key of
this draft is the idea, that a new Immigration act should
acknowledge a fundamental right to immigration. Accorindgly,
it would not be the migrants who would have
to justify their stay in Germany, but the German state
who had to jusitify a potential denial of immigration.
This would not only change the political debate about
migration, but the character of immigration law: It would
no longer be a domain of discretion, but an instrument
of human rights protection.
property right over this resource (usually allocated receiving
states) and a transaction rule. If immigration
law is understood as the sum of rules that allocate
the property rights on migration and that define the
rules to transfer this right, immigration law becomes
comparable to other fields of public law and its exceptionalism
becomes visible.
Carsten Hörich: Discussant
Jaana Palander: Interlaced European standards
on family reunification law: reducing exceptionality
of the proportionality assessment?
European countries are tightening family reunification
rules to curb the number of migrants. A topical
theme therefore is to clarify the European constitutional
and administrative law restraints on restrictions
to family reunification. However, defining EU law and
human rights law obligations on treatment of migrants’
families is challenging, especially when both legal regimes
are simultaneously relevant, as is the case with
refugees and third-country national sponsors.
This study compares the approach and especially
the proportionality assessment between the ECtHR
and the CJEU. In the context of family reunification of
third-country nationals it is actually EU law that has
better protection since it recognizes a right to family
reunification, which should also be reflected in the proportionality
assessment. Currently the European standards
are thus interlaced. I argue that in EU migration
law, the exceptional logic familiar to European human
rights law should be reversed and thus normalized.
Stefan Schlegel: Migration as a property right:
A law and economics way to show exceptionalism
in immigration law
The Theory of property rights describes the law as
a system that allocates property rights over goods. For
each good in a society, the law has to take two fundamental
decisions. 1.) Which person should have control
over this good? 2.) by what rule should it be allowed to
transfer this property right from one agent to another?
The right to decide over somebody’s migration is a
good and a factor of production because the possibility
to migrate is a precondition for a host of economically
useful activities. Therefore, the law has to allocate a
Concurring panels 87