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Title: Legal Restrictions on Third-Country Nationals in EU Emergencies

Legal Restrictions on Third-Country Nationals in EU Emergencies

by Jacek Chlebny (Volume editor)
©2026 Edited Collection 602 Pages
Law, Economics & Management
Series: Ius, Lex et Res Publica, Volume 45

Summary

This book examines the conditions for the entry and residence in the European Union of third-country nationals and stateless persons during times of emergency, including terrorist threats, risks to health and life, and mass migration. It addresses one of Europe’s most pressing challenges: the management of irregular migration. Against the backdrop of reforms introduced by the New Pact on Migration and Asylum, the book offers a multi-perspective analysis grounded in EU law and the national legal systems of Belgium, Czechia, France, Italy, Poland, and Slovakia. It also explores the limits of state action in situations of emergency and examines how restrictions adopted in the name of state security or public order must remain consistent with the protection of fundamental rights.

Table Of Contents

  • Cover
  • Title Page
  • Copyright Page
  • Tabla de Contenido
  • Introduction (Jacek Chlebny)
  • 1 European law perspective: are there any special provisions on entry and residence of third-country nationals necessary in times of emergency?
  • 1.1 Definitions of emergency and crisis in the context of migration (Wojciech Piątek)
  • 1.2 Time of emergency—legal sources (Wojciech Piątek)
  • 1.3 The emergency response mechanism (Rafał Rogala)
  • 1.3.1 Introduction
  • 1.3.2 The 2015–2016 migration crisis
  • 1.3.2.1 Schengen border code reform
  • 1.3.2.2 Actions prior to the apogee of the crisis
  • 1.3.2.3 Hotspots
  • 1.3.2.4 Relocation and resettlement
  • 1.3.2.5 Activation of crisis management mechanisms
  • 1.3.2.6 Externalization of migration
  • 1.3.2.7 The EU-Turkey Agreement (Statement)
  • 1.3.2.8 European Trust Fund
  • 1.3.2.9 Establishment of the European Border and Coast Guard
  • 1.3.2.10 The 2015–2016 migration crisis—a summary
  • 1.3.3 The migration crisis triggered by the COVID-19 pandemic
  • 1.3.3.1 First reactions to the pandemic crisis
  • 1.3.3.2 The response to the COVID-19 pandemic from EU bodies
  • 1.3.3.3 Labor migrants during the COVID-19 pandemic
  • 1.3.3.4 The situation of applicants for international protection during the COVID-19 pandemic
  • 1.3.3.5 Application of soft law in the practice of managing the crisis caused by the COVID-19 pandemic
  • 1.3.3.6 Poland’s response to the pandemic and the crisis it caused
  • 1.3.3.7 Conclusions
  • 1.3.4 Instrumentalization of migration
  • 1.3.4.1 Examples of the instrumentalization of migration in Europe in the twenty-first century
  • 1.3.4.2 From securitization to the instrumentalization of migration
  • 1.3.4.3 European Union legislative offensive: The Migration and Asylum Pact and Acts
  • 1.3.4.4 Poland’s response to the migrant crisis on the Polish-Belarusian border
  • 1.3.5 Ukraine crisis
  • 1.3.5.1 Poland’s response to the influx of refugees from Ukraine
  • 1.3.6 Conclusions
  • 1.4 Human rights in times of emergency: EU law perspective (Barbara Opalska)
  • 1.4.1 Introduction
  • 1.4.2 EU Law, the European Pact on Migration and Asylum, and the pivotal Principle of Non-Refoulement
  • 1.4.3 Conclusions
  • 1.5 Human rights in times of emergency: international law perspective (Anna Chmielarz-Grochal)
  • 1.5.1 Introduction
  • 1.5.2 Fundamental rights of migrants in international law
  • 1.5.3 The principle of non-refoulement in international human rights law
  • 1.5.4 Guarantees of migrants’ rights in the European Convention on Human Rights
  • 1.5.5 The permissibility of restrictions on human rights in the light of acts of international law
  • 1.5.6 Standards of protection of migrants’ rights in the case law of the European Court of Human Rights
  • 1.5.7 Conclusions
  • 1.6 Derogations in time of emergency (Jacek Chlebny)
  • 1.6.1 Derogating from the application of obligations in a state of public emergency in the ECHR
  • 1.6.1.1 Application of the derogation clause
  • 1.6.1.2 A state of public danger threatening the life of the nation
  • 1.6.1.3 Measures taken on the basis of a derogation clause
  • 1.6.1.4 Effects of the derogation on the rights of refugees and immigrants
  • 1.6.2 Suspension of obligations under the ICCPR due to exceptional public danger threatening the existence of the nation
  • 1.6.2.1 Principles governing the suspension of rights and freedoms guaranteed in the ICCPR
  • 1.6.2.2 Conditions for the suspension of obligations under the Covenant pursuant to Article 4 of the ICCPR
  • 1.6.3 Restriction of the rights and freedoms guaranteed in the Charter of Fundamental Rights of the European Union
  • 1.6.4 Conclusions
  • 2 Substantive and procedural law perspective: human rights of migrants in times of emergency in selected countries
  • 2.1 Belgium (Geert Debersaques, Anke Meskens)
  • 2.1.1 Substantive law perspective: human rights of migrants in times of emergency in Belgium
  • 2.1.1.1 The state of emergency in Belgium
  • 2.1.1.1.1 Article 187 of the Constitution
  • 2.1.1.2 Human rights related to migration
  • 2.1.1.2.1 Introduction: the legal framework in Belgium
  • 2.1.1.2.2 The right to private and family life under Article 8 ECHR
  • 2.1.1.2.2.1 Introduction
  • 2.1.1.2.2.2 The right to residence in the context of Article 8 ECHR
  • 2.1.1.2.2.3 Expulsion of migrants under Belgian legislation in the context of Article 8 ECHR
  • 2.1.1.2.3 The prohibition of torture, inhumane or degrading treatment or punishment under Article 3 ECHR
  • 2.1.1.2.3.1 Introduction
  • 2.1.1.2.3.2 The right to residence in the context of Article 3 ECHR
  • 2.1.1.2.3.3 Expulsion of migrants under Belgian legislation in the context of Article 3 ECHR
  • 2.1.1.3 Personal rights for third-country nationals
  • 2.1.1.3.1 Article 10, 11 and 191 Constitution
  • 2.1.1.4 Political rights for third-country nationals
  • 2.1.1.4.1 The right to civil service
  • 2.1.1.5 Economic, social, and cultural rights for third-country nationals
  • 2.1.1.5.1 Introduction
  • 2.1.1.5.2 The right to education
  • 2.1.1.5.3 The right to social allowances
  • 2.1.1.6 Solidarity rights for third-country nationals
  • 2.1.1.6.1 The right to live in peace
  • 2.1.1.6.1.1 The inviolability of the home
  • 2.1.2 Procedural law perspective: human rights of migrants in times of emergency in Belgium
  • 2.1.2.1 Special procedures on entry and residence of the third-country nationals
  • 2.1.2.1.1 Legal framework in Belgium
  • 2.1.2.1.2 The (general) procedure on entry and residence
  • 2.1.2.1.3 Deprivation of liberty, restriction of liberty and use of coercion
  • 2.1.2.1.3.1 Deprivation of liberty and restriction of liberty
  • 2.1.2.1.3.2 Use of coercion
  • 2.1.2.2 Identification of standards for proper organization of administrative authorities and courts
  • 2.1.2.2.1 Basic standards for proper functioning administrative authorities and courts
  • 2.1.2.2.2 The effect of times of emergency on the standards for proper organization of administrative authorities and courts
  • 2.1.2.2.3 How do public authorities and courts cope with the amount of applications for international protection?
  • 2.1.2.3 Application of new technologies into administrative and court proceedings
  • 2.2 Czech Republic (Ivo Pospíšil)
  • 2.2.1 Constitutional definition of states of emergency in the Czech Republic
  • 2.2.1.1 General background
  • 2.2.1.2 The constitutional and sub-constitutional regulation of states of emergency
  • 2.2.2 Substantive law perspective: the human rights of migrants in the Czech Republic
  • 2.2.2.1 Institutional framework of protection
  • 2.2.2.2 Selected issues of human rights of migrants
  • 2.2.3 Restrictions on human rights in states of emergency and the status of aliens
  • 2.2.3.1 Limitation of rights in general
  • 2.2.3.2 Restrictions on the rights of foreigners in states of emergency
  • 2.2.3.3 Procedural guarantees for the protection of rights in states of emergency
  • 2.3 France (Fanny Jacquelot)
  • 2.3.1 Substantive law perspective: emergency standards in France
  • 2.3.1.1 Introduction
  • 2.3.1.2 The state of emergency provided for the Constitution
  • 2.3.1.3 The state of emergency provided by law
  • 2.3.2 Human rights related to migration: the right to asylum
  • 2.3.2.1 Introduction
  • 2.3.2.2 The right to migrate
  • 2.3.2.3 Temporary protection
  • 2.3.2.4 Sources of the right to asylum in France
  • 2.3.2.4.1 Domestic sources of asylum law
  • 2.3.2.4.2 External sources of asylum law
  • 2.3.2.5 The different types of protection granted for asylum applications
  • 2.3.2.5.1 Introduction
  • 2.3.2.5.2 Constitutional asylum
  • 2.3.2.5.3 Conventional asylum
  • 2.3.2.5.4 Subsidiary protection
  • 2.3.2.6 The malfunctioning of the asylum system during the state of health emergency
  • 2.3.2.7 Restrictions on fundamental rights during a state of health emergency
  • 2.3.2.7.1 Restrictions on freedom of movement
  • 2.3.2.7.2 Restrictions on family reunification
  • 2.3.3 Personal rights for third-country nationals
  • 2.3.3.1 Introduction
  • 2.3.3.2 Health
  • 2.3.3.3 Individual freedom
  • 2.3.3.3.1 Administrative detention
  • 2.3.3.3.2 House arrest
  • 2.3.3.3.3 Personal freedom of foreign nationals during a state of emergency
  • 2.3.3.3.3.1 Problems during states of emergency under the 1955 law
  • 2.3.3.3.3.2 Problems during the state of health emergency
  • 2.3.3.4 Privacy
  • 2.3.3.5 Data protection
  • 2.3.4 Political rights for third-country nationals
  • 2.3.5 Economic, social, and cultural rights for third-country nationals
  • 2.3.5.1 Introduction
  • 2.3.5.2 Right to work
  • 2.3.5.2.1 General law
  • 2.3.5.2.2 Adaptations during emergency periods
  • 2.3.6 Human rights of the specific vulnerable groups: unaccompanied minors
  • 2.3.7 Procedural law perspective
  • 2.3.7.1 Special procedures on the entry and residence of third-country nationals
  • 2.3.7.1.1 Introduction
  • 2.3.7.1.2 The standard entry and residence procedure for third-country nationals in France
  • 2.3.7.1.2.1 Entering France
  • 2.3.7.1.2.2 Removal from French territory
  • 2.3.7.1.3 Special entry and residence procedures in times of emergency
  • 2.3.7.2 Identification of standards for proper organization of administrative authorities and courts
  • 2.3.7.2.1 Introduction
  • 2.3.7.2.2 Relations between third-country nationals and the authorities
  • 2.3.7.2.3 The right to a judge for third-country nationals
  • 2.3.7.2.4 Adaptations during a state of health emergency
  • 2.3.7.2.4.1 Administrative authorities
  • 2.3.7.2.4.2 Administrative justice
  • 2.3.7.3 Application of new technologies in administrative and courts proceedings
  • 2.3.7.3.1 Introduction
  • 2.3.7.3.2 New technologies in administrative and legal proceedings
  • 2.3.7.3.3 New technologies specifically for third-country nationals
  • 2.4 Italy (Paola Pannia)
  • 2.4.1 Introduction
  • 2.4.2 A diachronic overview on the legislative framework regulating the rights of migrants in Italy: emergency as an overarching keyword
  • 2.4.2.1 A (quite) recent history of immigration
  • 2.4.2.2 The Italian constitutional framework on third-country nationals and their rights
  • 2.4.2.3 The most relevant legislative provisions: an overview on the legal status of third-country nationals
  • 2.4.2.4 The evolution of the Italian Immigration law
  • 2.4.3 The Italian legislation on foreigners’ rights in time of emergency: a substantial and procedural perspective
  • 2.4.3.1 The Balkan “emergencies”
  • 2.4.3.2 The “Arab Spring”
  • 2.4.3.3 The EU “refugee crisis” of 2015
  • 2.4.3.3.1 The management of arrivals and the hotspots approach
  • 2.4.3.3.2 Reforms meant to restructure the national reception system
  • 2.4.3.3.3 Reforms aimed at speeding up the international protection procedure
  • 2.4.3.4 The covid emergency and the regularization
  • 2.4.3.5 The current “state of emergency”: the Ukraine war and beyond
  • 2.4.3.5.1 The state of emergency declared after the Ukraine war
  • 2.4.3.5.2 The rapid succession of reforms and the declaration of a new “state of emergency”
  • 2.4.3.5.3 The Agreement Italy-Albania and the issue of the “safe third countries of origin”
  • 2.4.4 Conclusive remarks: tools, reasons and implications surrounding the construction of a regime of permanent emergency
  • 2.5 Poland
  • 2.5.1 Substantive law (Michał Kowalski)
  • 2.5.1.1 Introductory remarks
  • 2.5.1.2 Constitutional standard
  • 2.5.1.3 Statutory guarantees
  • 2.5.1.4 Conclusions
  • 2.5.2 Procedural law perspective
  • 2.5.2.1 Special procedures on the entry and residence of third-country nationals (Paweł Dańczak)
  • 2.5.2.1.1 General overview
  • 2.5.2.1.2 The COVID-19 pandemic
  • 2.5.2.1.3 Inflow of Ukrainian nationals in connection with the invasion of Ukraine by the Russian Federation
  • 2.5.2.1.4 General procedure
  • 2.5.2.1.5 Special procedures
  • 2.5.2.1.5.1 Crisis at the EU external border—the Polish-Belarusian border
  • 2.5.2.2 Deprivation of liberty, restriction of liberty and coercion (Paweł Dańczak)
  • 2.5.2.2.1 Deprivation and restriction of liberty
  • 2.5.2.2.2 Direct coercion
  • 2.5.2.3 Cooperation with the European Border and Coast Guard Agency (Paweł Dańczak)
  • 2.5.2.4 Identification of basic standards for public administration bodies and administrative courts adjudicating cases concerning entry and residence of third-country nationals in the territory of the Republic of Poland (Grzegorz Rząsa)
  • 2.5.2.4.1 Introductory remarks
  • 2.5.2.4.2 The principle of equal treatment of foreigners residing in the territory of Poland and Polish citizens
  • 2.5.2.4.3 The standards applicable to proceedings before public administration authorities in cases concerning the entry and stay of a foreigner in the territory of Poland (in context of the right to good administration)
  • 2.5.2.4.4 Standards applicable to proceedings before an administrative court in cases concerning the entry and stay of a foreigner in the territory (in the context of the right to an effective remedy before a court)
  • 2.5.2.4.5 Selected cases of restrictions on foreigners’ rights due to crisis situations
  • 2.5.2.4.6 Conclusions
  • 2.6 Slovakia (Lilla Garayova)
  • 2.6.1 Introduction
  • 2.6.2 Substantive law perspective: the human rights of migrants in times of emergency in Slovakia
  • 2.6.2.1 Human rights related to migration
  • 2.6.2.2 Personal rights for third-country nationals
  • 2.6.2.3 Political rights for third-country nationals
  • 2.6.2.4 Economic, social and cultural rights for third-country nationals
  • 2.6.2.5 Solidarity rights for third-country nationals
  • 2.6.2.6 Human rights of specific vulnerable groups
  • 2.6.3 Procedural law perspective
  • 2.6.3.1 Special procedures on the entry and residence of the third-country nationals
  • 2.6.3.2 Identification of standards for the proper organization of administrative authorities and courts
  • 2.6.3.3 Application of new technologies in administrative and courts proceedings
  • 2.6.4 Conclusions
  • Summary (Jacek Chlebny)
  • Bibliography
  • Notes on contributors
  • Index

Introduction

Jacek Chlebny

This monograph is a study in the field of foreigners’ protection law, focusing on the conditions of entry and residence in the European Union for third-country nationals and stateless persons during states of emergency, such as threats of terrorism, risks to health and life, and mass migration. These threats are becoming increasingly frequent. The starting point for these considerations is the view that the existing legal regulations, both at the national and EU level, are inadequate to deal with such situations. Therefore, there is a pressing need to assess the current legal framework and propose new solutions, both de lege lata and de lege ferenda.

The need to amend the existing asylum law regulations was recognized by the EU legislator, who decided in 2024 to adopt the so-called New Pact on Migration and Asylum. This Pact includes nine regulations and one directive. Its drafters intended for it to establish a new, coherent system for managing irregular migration in Europe.1 However, it does not explicitly address specific regulations governing the entry and residence of third-country nationals in the EU during states of emergency.2 Although the adopted regulations have not yet entered into force, they will be considered within the analytical framework to assess their potential to achieve the intended objectives. The primary task in the present deliberations is to determine the degree to which the new regulations are adapted to threats related to the aforementioned states of emergency and to evaluate their impact on the functioning of individual states and the European Union as a whole.

Extraordinary situations require extraordinary legal measures. They should exist both at the level of proceedings before public administrations and during their judicial review. On the one hand, they should be characterized by a high level of flexibility in their application, depending on the circumstances. On the other hand, it is essential to maintain specific protection standards for third-country nationals. The existence of a state of emergency does not exempt public administrative authorities and courts from adhering to the principle of procedural fairness. This means that prompt action by state authorities in a state of emergency is at least as critical as in ordinary times, if not more so.

The importance of the efficient operation of public administration bodies and courts became apparent during the COVID-19 pandemic. The questions that became pressing at that time—concerning how the work of bodies and courts is organized in a state of emergency,3 the validity of the principles of openness of proceedings,4 equal treatment of parties,5 and the prompt resolution of cases6—continue to demand new answers, if only due to ongoing technological progress.

There is no doubt that third-country nationals decide to migrate to Europe, among other reasons, because of the emergencies occurring in their countries of previous residence. The mere fact of their mass influx to the borders of the European Union—irrespective of security considerations—creates an emergency situation, at least at the state border where they gather. A conflict may then arise between the interests of the persons staying at the border and the interests of the state into whose territory they wish to enter.7 Is it then acceptable to assert that the public interest of the host state should take precedence over the individual interest of the third-country national? Or would it be more justifiable to invoke the principle of proportionality and seek an answer to this question ad casum?

The considerations in this study will be divided into two parts. The first focuses on EU law, examining the very concept of times of emergency, including its presence in EU legal acts. It then analyses the legal framework governing the impact of such emergencies on state functioning and the rights of third-country nationals. Within this framework, the analysis will determine the extent to which the EU legislator permits derogations from certain rights to protect the public interest, particularly in matters of state security, and how such derogations align with the principles of international human rights protection.

The second part of the discussion focuses on the national regulations of selected legal orders. The legal situation of a migration emergency will be presented in the context of national regulations on personal, political and economic rights. In addition, a procedural perspective will be taken into account, covering the right to an administrative process, the right to a court, and the right to an effective remedy. The impact of new technologies on the conduct of administrative and judicial proceedings will also be considered. While the research concerns a general problematic framework intended to provide a common denominator for the reflections carried out in the monograph, it is not rigid in nature. This approach ensured that the authors retained their freedom and academic autonomy in selecting what, from the perspective of the country and the subject matter under discussion, they deemed truly relevant and what could be ascribed less cognitive significance. In addition, for various reasons, not all the authors were able to collect and elaborate their research results to a degree comparable to the others. However, even the narrower scope of these reflections provided enough valuable insights that it would be a mistake not to present them.

The selection of countries covered by the analysis—Belgium, the Czech Republic, France, Poland, Slovakia and Italy—is not random. It is based on several interrelated criteria. Firstly, the list includes both Central and Eastern European and Western European countries, which allows for capturing the diversity of experiences and legal traditions in the field of regulations concerning foreigners and responding to emergency situations. Poland, the Czech Republic and Slovakia represent the perspective of new Member States, which, after joining the European Union, have gradually built their migration law systems, often based on model solutions developed within the acquis communautaire. Belgium, France and Italy, on the other hand, are countries with a long legal and administrative tradition in the field of migration and the protection of foreigners, and also play a significant role in shaping EU migration and asylum policy.

Secondly, the selected countries differ in terms of their geographical location, which determines their role in the European migration management system. Poland, the Czech Republic and Slovakia constitute the external or transit border of the European Union, which means that they are particularly affected by migration in crisis situations. Belgium, France and Italy, on the other hand, are destination countries that face problems related to the residence, integration and protection of foreigners on their territory. This combination allows us to show how the geopolitical context influences the application of provisions on the entry and residence of third-country nationals in emergency situations.

Thirdly, the selection of these countries is justified by their diverse normative and jurisprudential achievements in the field of migration law and administrative law applied in emergency situations. France and Italy have extensive experience in regulating states of emergency, which allows for an analysis of the limits of permissible restrictions on individual rights in situations of public security threats. Belgium’s participation in the process of creating European Union law in the area of migration and asylum means that an analysis of its legal system allows us not only to understand the specifics of national solutions but also to assess their significance and impact on the development of common EU standards.

The diversity of the countries studied in terms of their geographical location, their place and importance in the European migration system (border and destination countries), and their experience in the use of emergency instruments allows for a comparative analysis. Such a broad perspective also makes it possible to determine the extent to which EU and international law influence national solutions in the area of migration and whether the mechanisms adopted ensure a response to crisis situations that is consistent with European and constitutional standards of human rights protection.

The research was conducted using the dogmatic-legal method, encompassing both acts of EU law, primary and derived, as well as selected legal orders of the Member States. The evolutionary method plays an auxiliary role, highlighting the changes that migration law has undergone over time. Finally, given the inclusion of multiple legal systems in this study, the comparative law method also plays an important role.

The study is based on the state of the law, literature and case law as of March 1, 2026.

Chapter 1 European law perspective: are there any special provisions on entry and residence of third-country nationals necessary in times of emergency?

1.1 Definitions of emergency and crisis in the context of migration (Wojciech Piątek)

Our contemporary world is characterized by a succession of emergencies, ranging from the outbreak of the COVID-19 pandemic to armed conflicts, including Russia’s aggression against Ukraine and hostilities in the Middle East. Another growing emergency is climate change, which is has led to climatic anomalies in some parts of the world, including droughts and floods. Such emergencies force people to migrate in search of more favorable living conditions. In 2015, more than two million African refugees arrived in Europe.8 Further groups of African refugees continue to arrive, with fluctuating intensity, off the coasts of Italy and Greece.9 In 2022, millions of Ukrainians fled their country as a result of Russian aggression.10 From 2021 onwards, groups of migrants, mainly from the Middle East and Africa, have attempted to cross the eastern border of the European Union, with varying intensity.11

According to one dictionary definition, an emergency is “an unexpected and usually dangerous situation that calls for immediate action.”12 The concept of a state of emergency, as described in the legal literature, refers to a crisis identified and designated by a state as reaching a severity threshold that necessitates urgent, exceptional and temporary measures that would not be permissible under normal conditions.13 These definitions encapsulate three constitutive features of an emergency: the unpredictability of the phenomenon, the seriousness of the danger posed, and the need for a rapid response. The question of the extent to which an emergency can be equated with a crisis, and whether the two concepts can be used interchangeably, also requires consideration.

The emergencies referred to above are unpredictable and, in the case of climate change, sometimes even denied. As a result, they are difficult to anticipate and effectively prevent. Their magnitude even makes thorough preparation impossible. They usually occur suddenly and take those affected by surprise. This was the case with both the outbreak of the COVID-19 pandemic and Russia’s aggression against Ukraine. Even if the emergency builds up gradually, as with climate change, the severity of the threat to fundamental values such as human health and life limits the available responses. Often, the only solution is to flee a place threatened by warfare or made uninhabitable due to drought or flooding. The decision has to be taken immediately, without time for in-depth calculation based on empirical data. The effectiveness of protective measures often depends on the appropriateness and speed of the decision.

A feature of modern emergencies is that they are no longer short-lived, measured in hours or days. They can last for months or even years. However, this does not mean that emergencies should be treated as something permanent, escaping any temporal constraints. Each recognized state of emergency is a temporary response to an exceptional and temporary situation.14 The prolongation of an emergency and the lack of a clearly defined temporal framework pose an additional threat to people, as they result in extraordinary legal and factual conditions being maintained for an extended period of time.

It is important to consider the extent to which an emergency can be equated with the concept of a crisis. Undoubtedly, they can create crises—whether humanitarian, health, or economic. However, this is not a necessary condition. At the core of an emergency is the threat of a particular good being lost. A real threat capable of causing a humanitarian, health or economic crisis is sufficient. The greater the importance of the threatened good (such as human life or health), the greater the concern. Nevertheless, an emergency does not have to automatically escalate into a crisis requiring radical solutions that might further destabilize states and societies.

Emergencies should be understood objectively, as existing realities. Nevertheless, due to the threat of certain goods, such as human health or life, being lost, their occurrence may evoke subjective emotions.15 This state of affairs may give rise to another danger: the potential for public authorities to exploit the situation to justify granting themselves broader powers than necessary. The level of public acceptance for such decisions may be disproportionately high relative to the actual threat being addressed. Although this phenomenon is sociological rather than legal in nature, it should not be underestimated when considering legal responses to emergencies, particularly those involving restrictions on the entry and residence of third-country nationals in the EU. It can easily influence their wording and their social acceptance.

These examples of emergency situations have a direct impact on life across the entire planet, including the functioning of states and international organizations. These entities, on the one hand, can cause emergencies and, on the other hand, should have clearly defined legal regulations indicating how to act in response to such situations. An example of such regulation is provided by the provisions of Chapter XI of the Polish Constitution, entitled “states of emergency.” Article 228(1) of the Polish Constitution lists three types of states of emergency: martial law, a state of emergency and a state of natural disaster. Each of these may be introduced only in exceptional circumstances, when the ordinary constitutional measures prove insufficient.16 In Germany, Article 115a(1) of the Basic Law17 provides for the imposition of martial law (Verteidigungsfall) in the event of an attack or imminent threat of an armed attack on German territory. Earlier provisions refer to the need to maintain or restore public order, the possibility of the police requesting military assistance,18 and the protection of the democratic order,19 including cooperation between the police and other services of the various Länder in this connection. In France, a state of emergency is provided for by Article 16 of the Constitution, which deals with a serious and imminent threat to the institutions of the Republic, the independence of the State, the integrity of its territory, or the performance of international obligations. An additional condition for the application of emergency measures is the interruption of the regular functioning of the public authorities defined in the Constitution.20 Article 43(4) of the Constitution of the Czech Republic allows for the presence of foreign troops in the Czech Republic and Czech troops abroad in the event of the need to fulfill international obligations to defend against aggression and to participate in operations related to the occurrence of natural, industrial and environmental disasters.

However, there are also some legal orders that lack constitutional or statutory provisions for managing emergencies.21 These states are dependent on ad hoc responses to a specific emergency that has occurred at a particular time. Any legal and factual action they take is, on the one hand, determined by the nature of the threat that has arisen and, on the other, made at short notice, sometimes under the heavy influence of the threat, without any broader understanding of its implications.

A question worth asking concerns the scope of existing regulations in the context of the observed crises and their effectiveness in preventing them. Are the regulations in force in individual countries sufficient to counteract the effects of ever-new crises? A negative answer to this question may stem, for example, from the limited scope of national regulations. Crisis situations often transcend the boundaries of a single state and require a joint response from many countries. Coordination of their action is therefore essential. The increasing regulation of migration crises at the EU level is, therefore, not surprising. Successive crises may necessitate new and more extensive measures to prevent them. The consequence of successive emergencies, including their worsening, may be the need to strengthen cooperation between different states and to adopt new forms of collaboration. At the same time, states may, for various reasons, refrain from declaring a state of emergency even when there are objective grounds for doing so and when legal frameworks are already in place.22 Finally, the rationale for the imposition of a state of emergency does not necessarily align with the actual need to prevent crisis situations. In other words, contemporary emergencies resist simple categorization under national state of emergency regulations. In particular, not every migration crisis can be categorized as a state of emergency. The final decision depends on a number of factors, both objective, concerning the degree of threat to a specific good, and subjective, related to the assessment of the seriousness of the threat.

What the various legal regulations on emergencies have in common is their wording, which aims to prevent the dangers associated with the nature of the threat in question. To achieve this goal, the participation of law enforcement and uniformed services of the respective states is envisaged. Depending on the situation, their powers to perform factual and legal acts are extended. This is usually combined with a limitation of the rights of individual subjects. The question remains: to what extent can the executive be endowed with powers that interfere with the rights and freedoms of individuals? How can these rights be restricted? Where is the limit beyond which this restriction is not permissible, in view of the need to protect human dignity and the rule of law? Is this limit fixed, or is it fluid, depending on the nature of the right at stake?

An example of a regulation that explicitly allows for the possibility of restrictions (derogations) is Article 15(1) of the Convention for the Protection of Human Rights and Fundamental Freedoms, which permits each High Contracting Party to take measures derogating from the application of its obligations under the Convention to the extent strictly required by the situation. The rationale for taking these measures is the outbreak of war or other public danger threatening the life of the nation.23 A similar provision is found in Article 4 of the International Covenant on Civil and Political Rights, which allows for derogations in cases of a public emergency threatening the existence of a nation. States Parties to the Covenant may then take steps to suspend their obligations under the Covenant with the exception of actions entailing discrimination solely based on race, color, sex, language, religion or social origin.

On the one hand, it is clear that both national and EU law allow for restrictions on the rights and freedoms of individuals in the event of an emergency. On the other hand, such restrictions cannot be absolute. They must always be proportionate to the emergency. This statement, general in its content, will need to be further elaborated based on the specific legal and factual circumstances of the states of emergency triggered by the influx of successive waves of migrants into the EU.

It is clear from the regulations presented above that a state of emergency is linked to a threat arising from an unexpected phenomenon that disrupts the normal functioning of states and societies. During such times, certain values and rights may not be fully protected by the state. The justification for reducing the level of legal protection lies in the need to safeguard higher-order goods. However, the curtailment of existing rights must have temporal limits. The measures adopted should be proportionate to their intended effects. Otherwise, an emergency could easily develop into a permanent crisis, with lasting effects on the rights and freedoms of individuals.

1.2 Time of emergency—legal sources (Wojciech Piątek)

Given the subject of these considerations, it is appropriate to consider the impact of the above-defined state of emergency on the right of entry and residence of third-country nationals in the territory of the European Union. When searching for the sources of legal regulations in force in this area, it is worth starting the analysis by outlining the threats that give rise to a state of emergency before turning to regulations which directly address emergencies.

Details

Pages
602
Publication Year
2026
ISBN (PDF)
9783631925218
ISBN (ePUB)
9783631945919
ISBN (Hardcover)
9783631925201
DOI
10.3726/b23374
Language
English
Publication date
2026 (May)
Keywords
Migration law Human rights protection Times of emergency Legal restrictions Entry regulations Third-country nationals EU law Border control Asylum policy Public safety Nationality law Immigration restrictions Administrative procedures in times of emergency
Published
Berlin, Bruxelles, Chennai, Lausanne, New York, Oxford, 2026. 602 pp.
Product Safety
Peter Lang Group AG

Biographical notes

Jacek Chlebny (Volume editor)

Jacek Chlebny is a Professor of Law at the University of Lodz and President of the Supreme Administrative Court of Poland.

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Title: Legal Restrictions on Third-Country Nationals in EU Emergencies