This chapter addresses three ways in which lawyers can try to criticize the case law of European courts. The first is to re-analyse case law so as to expose its internal inconsistencies, which opens the possibility of arguing for a more consistent position. The European Court of Human Rights’ (ECtHR) case-law on judicial review in asylum cases is used as an example. The second strategy is to contrast the case-law as it stands to an alternative line of case-law which is just as valid, and thus open up the possibility of change. The European Court of Justice’s case-law on the family unity of EU citizens is used as an example. The third strategy is to bring into view an issue that has remained in the shadows as this may affect the outcome of a legal argument. The ECtHR’s case law on HIV positive aliens and Article 3 ECHRis used as an example.
Analysing European Case-Law on Migration. Options for Critical Lawyers, in Loïc Azoulai and Karin de Vries (eds): EU Migration Law: Legal Complexities and Political Rationales. The Collected Courses of the Academy of European Law, VOLUME XXI/2, Oxford University Press 2014, p. 188-218