Discretionary Power: An Autocratic Tool in Migration Policies?

Abstract This article examines whether and under what conditions discretionary power qualifies as an autocratic tool. While discretion is a pervasive and often unavoidable feature of migration governance, it is not inherently autocratic. Drawing on an analysis of legal arrangements in EU migration law, the article distinguishes between historically entrenched forms of broad discretion and more recent instances in which discretion has been strategically instrumentalised to concentrate decision-making power in the hands of executives. While both instances of executive power can be criticised from a rule of law perspective, only the latter qualifies as an autocratic tool. The analysis suggests that discretion, as an autocratic tool, operates in the absence meaningful parliamentary or judicial oversight and serves the purpose of cultivating an image of executives as ultimate arbiters of migration control.