Managing migration flows at the European level: a dilemma between externalizing European borders and creating legal pathways.

Migration is a natural phenomenon, indeed, one could even say that it is a primary need, while the creation of borders is a bit of a stretch and should be interpreted as the need for a community to protect its interests. Therefore, migration has always been part of human history, both when it was linked to the need for survival and when it was due to trade, exchange and personal enrichment. This thesis aims at analyzing a specific form of migration, the one concerning international protection of people emigrating from countries affected by wars and persecutions due to ethnicity, faith professed, sexual or political orientation. This form of migration is the one that is currently undermining the system of protection of fundamental human rights at a global level. In fact, it could be argued that with an ever-growing need for human rights protection, there is no effective response from the international legal system. The purpose of this thesis is to investigate the actions taken by the European Union in order to overcome the emergency situation caused by the migration wave that is affecting individual member states. It will be pointed out that because of the inability of the European Union to manage the wave of migration in a coordinated and effective way, the so-called right-wing populist parties have felt entitled to use the issue of immigration for their political purposes. This political manipulation has made the migration issue even more urgent without an effective response from individual countries. This thesis will draw attention to the EU’s lack of interest and inability to regulate the flow of migration, by describing the various financial instruments and political agreements aiming at outsourcing European borders, which aims at denying migrants the right to seek international protection in a member state. From the legal perspective, which is the focus of this thesis, the fact that the legislative system offered by sources of international and European law appears to be inadequate to the ever-increasing need for international protection will be first analyzed, and then explained. The inability of European and international legislation to regulate migration will be considered starting with the shortcomings and the challenges in the Geneva Convention of 1951 and the New York Protocol of 1967. Individual legislative measures concerning the Common European Asylum System will also be examined. Special attention will be given to the Dublin Regulation and its amendments, as well as to the current general amendment of the Common European Asylum System. Despite various legislative interventions by the European Union and the Commission's proposal to amend the Common European Asylum System, to this day, a thorough review of the legislative instruments for the correct management of migratory flows is still necessary. Indeed, EU law regulates and establishes the actions that a member state is required to take after the entry of applicants for international protection on its territory, yet without regulating how they can legally access the EU in order to seek protection before moving to a member state. As a result, although guaranteed at the level of primary EU law, the right to asylum is doomed to remain essentially on paper. Finally, the various permitted routes available to applicants for international protection in order to access an EU member state will be described. The creation of legal access routes to Europe is the most practical and safe way to guarantee the right to international protection, as well as a valuable tool to reduce the business of criminal organizations dedicated to smuggling and trafficking. However, research shows that EU member states are more interested in other aspects of migration policy, such as internal security and surveillance and strengthening of border control, with the result that the legal mobility options offered to applicants for international protection are still extremely limited.