Excluded from Guarantees, Excluded from the Community : “Institutional Uncertainty” in the Migration Domain as a Symptom of “Constitutional Degradation”

This chapter aims to assess whether the systematic and pervasive legal uncertainty in which migrants are constrained in our legal systems can be regarded as a formidable tool of migration control, rather than the mere result of the states’ incapacity and lack of preparation to manage a complex phenomenon. Conceived in these terms, can the “institutional uncertainty” be considered as a symptom of “constitutional degradation”? Drawing from some of the main findings of a H2020 research project, and undertaking a comparative approach, the chapter analyses the national protection statuses provided in some European countries (and beyond). Indeed, although their complementary role to the protection system, national protection statuses often feature a reduced set of rights (compared to the ones enjoyed by beneficiaries of international protection), more precarious residence permits, broad discretionary decision-making exercised by authorities. Against this background, national protection statuses may be seen as a strategy undertaken by states to comply with international and European obligations in a less stringent fashion, while affirming a paradigm of “domination” vis-à-vis the foreigners.