Regulating Migration at a Time of Populism. Women’s Rights as a Battleground in the European Populist Migration Legal Framework

Abstract

Anti-immigrant claims as key to the success of populist radical right parties in Europe – Increasing barriers to immigration and integration, and growing uncertainty as migration governance strategy – Misuse of gender equality and women’s rights by populist radical right parties to legitimise the restriction of the access to Europe as legal paradox – Comparative analysis (Finland, Germany, Hungary, Italy, the Netherlands, Poland and Sweden)

Introduction

The gender equality argument has been a central axis of the anti-immigration claims that enable populist radical right parties and movements to become agenda-setters in the immigration policy domain. However, resorting to the gender equality and women’s dignity argument is at odds with the traditional positions of those parties on women’s role in society, characterised by conservative values. Exploring such contradictions and discussing the outcomes of the misuse of women’s rights advocacy in regulating migration is the object of this article. The central idea is that the populist radical right parties’ stances heavily contribute to creating a hostile environment against human rights-oriented migration regulation,¹ diminishing, at the same time, the very notion of gender equality and of women’s rights. And it represents a specific type of constitutional degradation.

Since the beginning of the new century, populist radical right parties and movements and migration have drawn increasing political and academic attention and much debate has developed around them. Neither of the two phenomena is new. Mankind’s very evolution is inherently connected with migration and migration has always been a very contested social, cultural, political and also legal terrain. The same is true for populism and populist parties and movements. There is a rather clear connection between what Aristoteles named a ‘demagogue’ and the contemporary idea of populism, and since the 4^th century BC the debate around demagogic/populist regimes, parties and movements has marked the evolution of both political theory and the philosophy of law.² The exploitation of migration by demagogic/populist radical right parties and regimes is likewise not a novelty. Through anti-immigration claims, those parties and movements seek to build a community’s identity and to create political consensus based on the typical logic of ‘us’ against ‘them’.³ ‘The people’ is a central concept of populism, together with ‘the elite’ and the ‘general will’ according to Mudde,⁴ and is built in antithesis to ‘the other’, best personified in the immigrant. Indeed, radical right-wing populist parties share a fundamental core of ethno-nationalist xenophobia.⁵

However, what is specific to the first decades of the 21st century is the scale of populism and migration that are being experienced in Europe and, at the same time, the way in which populism and migration intertwine with other dimensions, causing unpredictable and sometimes even counterintuitive effects. One of these intertwines is with gender issues. The ‘originally conservative stance towards gender issues (family values and traditional gender role)’⁶ taken by populist radical right parties and movements has attracted relatively little attention in academic research.⁷ This is either because the gender dimension has long appeared to be a quasi-irrelevant category in the construction of the populist identity,⁸ or because ‘while the global right is a composite phenomenon, when gender is at stake such movements seem to speak with one conservative voice’.⁹ The conservative stances towards gender issues are so coherent with the ideological and policy framework of populist radical right parties and movements that the latter have often become the main drivers for so-called ‘anti-gender’ claims in Europe.¹⁰ Throughout Europe, they have voiced, with different accents and nuances according to national contexts and their respective political platforms, opposition to abortion and to several aspects of medically assisted reproduction,¹¹ to gender quotas in political and economic decision-making bodies¹² and opposition to day care facilities and full-time school,¹³ as well as opposition to specific tools to promote women’s employment¹⁴ and sex education at school.¹⁵

The scenario has changed since a number of populist radical right parties and movements around Europe started to advocate for tightening migration rules and opposing the idea of multicultural societies in the name of protecting Western/European values, which include gender equality and women’s dignity. As will be discussed in this article, from the Scandinavian peninsula to Southern Europe, the clash between ‘European women’s rights and freedoms’ and the patriarchal oppression of migrant women has been successfully exploited to try and build consensus not on the advancement of women’s rights, but against immigration.

The media and political debates on right wing populism and on migration follow the waves of events (and far too frequently policy-making and law-making processes do so as well), reaching a peak on the occasion of electoral victories¹⁶ and dramatic migration-related events,¹⁷ whereas the scientific literature, rather substantial in both areas, has just recently started to address the contradiction of populist radical right parties and movements advocating for gender equality in migration debates.

In this field sociology, political science and international relations studies dominate the scene. In these domains, research has developed the notion of ‘femonationalism’ to describe a ‘fundamental tension and contradiction: that between the non-emancipatory forces of Islamophobia and racism on one side, and the emancipatory struggle against sexism and patriarchy, on the other’.¹⁸ Legal studies remain rare. However, comparative legal analysis brings to the forefront and spotlights the complexity of the strategies of populist radical right parties and movements and the visions underlying those strategies. It does so by focusing on the concrete legal measures adopted and enforced by states and on the delicate balance of rights and liberties touched by those measures. Comparative law favours an approach that it is open to other sciences¹⁹ and consistent with ‘methodological pluralism’,²⁰ which combines a number of different research methods. In particular, it combines a systematic method (which involves determining the meaning, content and scope of the rules – laws, regulations, etc – by considering them in their legal context), a functional one (which focuses on the function rules fulfil and the coherence between the instruments used and the goal), and a critical one (which suggests that the law is inherently intertwined with social and political dimensions, and laws are thus heavily influenced by the power dynamics characterising societies).²¹ The combination of the three approaches is precisely what is crucial in order to disentangle the complexity of the phenomenon this article is addressing.

The selection of the case studies is based on the paradigmatic approach, whereby cases are chosen to illuminate the system the case belongs to.²² Finland, Germany, Hungary, Italy, the Netherlands, Poland and Sweden present paradigmatic characters of the topic. Each case serves to provide an understanding of the misuse of the gender equality narrative as a justification for the tightening of immigration rules and of its effects by adding elements that are crucial for building as coherent a picture as possible of the phenomenon. Finland and Sweden depict cases where gender equality and the promotion of women’s rights are perceived as national values; Poland presents an interesting intertwine between populism and conservative Catholic values; in the Netherland the peculiarities of a right-wing populism protecting LGBTQ+ rights feature; Hungary presents one of the most long-lived populist government in Europe; and in Italy and Germany populist radical rights parties have shown important recent electoral victories, which sharply increases their capacity for consensus-building. By juxtaposing these case studies, the analysis proceeds through a comparative approach, where similarities and differences are not intended to create typologies but rather to define trends.

The reasoning set forth in the following pages will not lead to a linear cause-effect relationship between political discourse and legal measures. The aim of the article, therefore, is not to demonstrate that the legal barriers to entering Europe and integrating into European societies are the direct product of anti-immigration claims advanced by populist radical right-wing parties and movements over the past two decades in the name of gender equality and women’s rights. What is argued is that their narratives about migration and migrants have created a political and social environment where immigration restrictions and the downsizing of migrants’ rights appear justifiable.

Moreover, the article seeks to identify the risks that the misuse of gender equality and of women’s rights pose. The purpose is not to justify migrant women’s oppression in the name of respect for their culture,²³ but rather to unveil the political exploitation of issues regarding fundamental values and rights by populist radical right parties and movements seeking to contradict those very same rights and values. Contemporary constitutionalism relies on rights as emancipatory and empowering instruments designed to liberate each person and enable them to blossom;²⁴ when they become a justification for their own retrenchment, the values of constitutionalism are betrayed.

The article begins by illustrating a number of paradigmatic manifestations of the extensive focus on Muslim women’s subjugation as justification for populist radical right parties and movements’ anti-immigration claims. The approach of this section is deliberately more descriptive than analytical, with the purpose of illustrating the importance of the use of words and images in the construction and consolidation of the hostile socio-cultural and political environment.²⁵ The second section delves into the discussion of the common characterising elements of migration legal frameworks across Europe. The analysis demonstrates how the anti-immigration claim, imbued in the rhetoric of the protection of Western/European values, has opened the door to a specific aspect of constitutional degradation. In the field of migration, constitutional degradation consists in the regression in terms of rule of law, legal certainty, predictability, and democratic values.²⁶ The third section deals with the implications of making migrant women’s rights a battleground in the field of immigration and integration. Those implications derive from the narratives described in the first section of the article and are embedded in the degraded legal framework analysed in the second section. The article concludes by offering some ideas on the challenges posed by populist radical right claims in the name of women’s dignity to the idea of rights as emancipation.

A final note before getting to the heart of the discussion: overall, the dominant political discourse on migrant women as ‘a problem’ and the creeping sense of Islamophobia permeating contemporary policy measures in the domain of migration have gradually reduced all migrant women to the category of Muslim women. And legal measures have followed the same pattern. Generally, policies and laws give little attention to the heterogeneity of the group labelled as ‘migrant women’. This engenders a number of negative effects. For the purposes of our discussion, the most relevant ones lie in two facts: that law-makers tend to rely on ‘one size fits all’ solutions, unable to provide sound governance of migration as a complex phenomenon, and that migrant women’s agency is often downsized.

Populist right parties and migrant women

Italy: not in our country

In Italy, the populist right Lega’s celebration of Women’s Day in 2024 was the first step in the electoral campaign for the European Parliament elections. On that day, an outgoing European Member of Parliament affixed 200 large posters in Rome, featuring the image of a woman wearing a niqab and the wording ‘In Europe you have the same rights as your husband’ in Italian and Arabic.²⁷ As far back as 2016, Matteo Salvini, the leader of the Lega, combined Islamophobic claims with the issue of women’s rights in a Facebook post: ‘Islam seeks to impose not only a religion but a way of life! Where I live, women have the same rights as men’.²⁸ In an interview with Il Giornale, a conservative newspaper, in 2018, he maintained that ‘as a father I recall school-related occasions when [foreign] mothers have been prevented from learning Italian and working, as well as girls who are forbidden to go to the gym or go to birthday parties together with their male classmates’, and concluded that ‘a certain kind of Islam is incompatible with our society’.²⁹

In the summer of 2023, the Lega’s Mayor of Monfalcone, a town on the Veneto Adriatic coast, denied women wearing the so-called ‘burkini’ access to beaches. She stated: ‘those who come from far away are obliged to respect Italian rules and customs. Forms of “Islamisation” of our territory cannot be accepted; [these practices] evoke a fundamentalist vision, which is also part of the desire not to respect the rules and regulations of the countries of arrival’.³⁰ In July 2023, a pool party organised by an association of Muslim women and reserved for them in a small village in Lombardy was cancelled due to harsh attacks against what was labelled ‘gender segregation’ by the Lega.³¹

The same claims are shared by Giorgia Meloni, Italian Prime Minister, founder of the populist right-wing party Fratelli d’Italia. ‘The Islamic veil does not represent at all European values’, Meloni affirmed, commenting on the testimonial image of the EU campaign for the 2022 European Year of Youth, a young woman wearing the hijab. ‘After centuries of struggles, in Europe women are free from submission symbols …’.³² Back in 2007 a prominent representative of Fratelli d’Italia (at the time a member of a different right-wing party) had presented a bill to outlaw the burqa and niqab, and similar bills have been proposed over the years.³³

Traditionally, however, neither the Lega nor Fratelli d’Italia support progressive legal and policy measures designed to promote gender quality and women’s empowerment,³⁴ not to mention their anti-abortion stances.³⁵ And indeed, ‘Islam makes children while the West does abortions’ was a title in a newspaper very close to the Lega.³⁶ The same rhetoric can be found in the parties’ campaigns against medically assisted procreation and the possibility of carrying out stem cell research.³⁷ The Italian case is a typical example of what Scrinzi names ‘racialisation of sexism’.³⁸

Gender equality as a fait accompli in Scandinavian countries

What has been observed concerning the Northern European populist radical right parties and movements perfectly fits the Italian case, that is to say, ‘those parties resort to a discursive over-simplification that posit gender equality as a fait accompli within Swedish and Finnish societies’. Italian society can be added here, as can many other European societies, in the image those parties and movements seek to promote in their political agenda: ‘… consequently [they] disregard feminist mobilisation to push gender equality beyond its present stage’.³⁹ Depicting, in their public narrative, the condition of Muslim women as the victims of a backward form of patriarchy thus serves a double purpose. On the one hand it politically legitimises opposition to further gender-equality measures and responds to demands for gender conservatism. On the other hand, it provides the justification, paradoxically, for anti-immigration measures in the name of equality and liberal rights.

In Finland, political science research has shown that the Perussuomalaiset/Sannfinländarna (Finns Party) not only held highly gendered anti-immigration stances, as they preached for the protection of Finnish women from the violence of migrant (and especially Muslim) men. They also adopted a highly stereotyped view of migrant women, considered to be in need of help and support to cope with the barriers erected by their own culture.⁴⁰ Interestingly, such rhetoric is to be found in the approach embraced by law-makers and policy-makers, whereby legal and policy instruments for migration governance target migrant women as an undifferentiated category. Special measures, therefore, were introduced to enable them to reconcile work and family and enter the labour market, on the basis of a cultural, oversimplified and stigmatised perspective rather than a socio-economic one. This is the result of the Finns Party’s success in setting the agenda on migration and integration, scholars argue:⁴¹ ‘the focus was less about tangible support, but more to exploit the pejorative symbol of “immigrant women”; its instrumental value was to differentiate them from majority women’.⁴²

A new way of making politics with gender in Germany

The German case is paradigmatic in depicting populist radical right parties and movements as a ‘new way of making politics with gender’.⁴³ Over the years, the Alternative for Germany has built a robust and coherent political agenda in defence of the traditional family based on heterosexual marriage. ‘Freedom of choice for motherhood’ would increase the birth rate of the native population, in opposition to emancipative actions and institutions.⁴⁴ Since the sexual assaults on New Year’s Eve in Cologne (2015/2016), a new narrative has emerged linking gender, women’s rights, migration and Islam. This new narrative is based on two complementary assumptions: first, that migrant males are the perpetrators of gender violence because of their brutal cultural backwardness and because they are legitimised to do so by their religion.⁴⁵ Second, ‘the equal rights of women and men guaranteed by the Basic Law as well as the free development of personality are contradicted by the headscarf as a religious-political sign of the subordination of Muslim women to men’.⁴⁶ The logical consequences of such a stance are: (i) the reduction of the very diverse group of foreigners to a single category, i.e. radical Muslims; (ii) the attribution to immigrants of violent, misogynistic attitudes that justify the fear; (iii) the stereotyping of oppressed, non-integrated migrant women; and (iv) the assertion that integration is impossible because migrants belong to an antagonistic culture, incompatible with Germany. Furthermore, as scholars have highlighted in the case of populist radical right movements in Nordic countries, the gendered anti-immigration discourse allows the Alternative for Germany to convey the idea of gender injustice towards immigrants, and reconcile its traditional definition of family, gender roles, marriage and sexuality with a meta principle of acquired gender equality in contemporary German society.⁴⁷

The Netherlands: trailblazer and outlier

In the Netherlands, the picture is somewhat different. There, in the second half of the 1990s, Pim Fortuyn founded a far-right political movement with a strong anti-immigration characterisation, based on the claim that Islam was a ‘backward culture’, especially in view of its anti-homosexual positions. In this country, unlike in other European contexts, the populist right-wing movement has not supported the conservative stance of other populist radical right parties as regards traditional gender roles, but has adopted a rather liberal sexual attitude,⁴⁸ making anti-immigration rhetoric based on cultural bias somehow less paradoxical. The issue of gender inequality as a marker of migrants’ ‘otherness’ has become central to right-wing populist Dutch parties and movements, so it came as no surprise when in 2013 the Dutch Freedom Party (PVV) issued a report on ‘Violence against women in Islam’, urging Muslim women ‘to liberate themselves from the prison of Islamic violence and choose freedom’.⁴⁹ The Dutch Freedom Party’s leader Geert Wilders has adopted a very radical position against Islam and has had to face a number of court cases, accused of hate speech and defamation.⁵⁰ In Wilders’ and the Dutch Freedom Party’s political agenda, the typical radical right anti-immigration stance has systematically taken the form of a gendered anti-Muslim policy and legal intervention.⁵¹ As will be discussed in the sections below, both anti-immigration and gendered Islamophobic views are reflected in Dutch legal and policy provisions: the tightening of legal immigration channels and restriction of migrants’ rights on the one hand, and on the other hand the tendency to make women a focus of cultural clashes, especially in the field of civic integration programmes and tests.

In the name of native women’s protection: Hungary and Poland

On the opposite side of the spectrum, the cases of Hungary and Poland best exemplify the justification of anti-immigration claims in the name of native women’s protection. Both Hungarian and Polish policy-makers exploit the issue of women’s rights not for emancipatory purposes, but rather coherently with a patriarchal rhetorical framework.⁵²

Fidesz, the ruling populist party led by Viktor Orban, in government in Hungary since 2010, has held marked conservative, anti-immigrant and anti-Muslim stances ever since its foundation in the late 1980s. There is hardly any need to retrace Orban’s positions on this subject, or to bring up Fidesz’s ‘anti-gender’ and conservative visions on family and women’s role in society, or homophobic attitudes and policies.⁵³ The apparent inconsistency between the political discourse on migration and on women’s empowerment as ‘Western value’ and practices is thus less noticeable than in other countries. Nonetheless, to enact radical anti-immigration legislation and policies, Fidesz and the Hungarian government utilise the patriarchal, oppressive, and hyper-sexualised image of aliens, and especially of Muslim migrants, always depicted as a danger for public security and perpetrators of sexual assaults.⁵⁴ Such an image has an obvious corollary: the need to protect Hungarian women against the threat of male migrants. In a debate on the sexual assaults in Cologne on New Year’s Eve, the State Secretary for Family and Youth Affairs maintained: ‘[w]e must put an end to illegal migration’ because ‘Hungarian women and children cannot be subjected to this danger’.⁵⁵ Even more explicitly, in a parliamentary debate in November 2017, Orban asked the opposition to ‘help the government so we can protect Hungary and Europe from migration, and this way we can do the most to combat violence against women’.⁵⁶

In Poland, anti-immigration and Islamophobic claims intertwine with traditional Catholic values. The right-wing ideologically conservative populist Prawo i Sprawiedliwość (Law and Justice Party), in power from 2015 to 2023, stands for traditional gender roles, leaning towards a Catholic understanding of the family, and strongly opposing so-called ‘gender ideology’.⁵⁷ Under its government, Poland saw the withdrawal of funding for in-vitro fertilisation, restriction of access to emergency contraception and a reduction in funding for combating domestic abuse.⁵⁸ Its leaders have been making a systematic use of the perceived Islamic threat to build consensus in electoral campaigns since 2015. Jarosław Kaczyński, the Law and Justice Party leader, incited Poles to fear Muslim migrants ‘seeking to impose Sharia laws, using Catholic churches as toilets, and carrying diseases’.⁵⁹ In a Facebook video for the 2018 local election campaign, the same party offered a dystopian vision of Poland in 2020 being flooded by violent immigrants who would perpetrate sexual crimes.⁶⁰ In a similar YouTube spot, the Law and Justice Party contended that ‘Polish women have the right to security, … to dignity, … to dress whichever way they want to, and … to go to the streets without the feeling of being threatened in any way’. According to scholars, ‘the given framing creates a sense of “us” and “them”: Polish women (“us-victims”) are threatened by radicalized Muslim immigrants (“them-oppressors”) and can only be protected by the Polish government (“us-people”)’.⁶¹

Each populist radical right party and movement adapts its claims according to the specific national context, but the common narrative, as discussed, focuses on women’s rights – of both migrant and native women – as the locus for anti-immigration and Islamophobic stances. In the past two decades these stances have permeated the political debate throughout Europe, resulting in a legal framework that has narrowed the legal channels for immigration, restricted migrants’ rights and tended to undermine the very notion of the rule of law and of rights as a source of empowerment.

Trends in migration law and the voices of populist right parties and movements

Strong anti-immigration and nativist claims represent the central axes of the political agendas of populist radical right parties and movements in Europe. The concern about the threat that immigration poses to national identity, socio-cultural homogeneity and economic wealth is a distinguishing characteristic of the ideology of these parties and movements.⁶² Migration is what political scientists refer to as a ‘core issue’ for populist right parties and virtually all of them subscribe to anti-immigration policies, adding their specific national traits.⁶³ Even when those parties and movements have not been in government, their strong messages have permeated the political debate and have been successfully transposed into concrete legal measures. A direct causal link between populist radical right parties’ electoral success and restrictive immigration policies is hard to prove.⁶⁴ Nonetheless, the reiteration of alarming, hyper-simplifying and stereotyping messages have created a sort of hostile environment in which leading populist right parties were able to play the role of agenda-setter in migration policy and in the legal domain.

This phenomenon has been facilitated by a number of common features that characterise the migration legal framework to different degrees in different countries. These common traits are both enablers of further women’s rights retrenchment and products, themselves, of constitutional degradation, which undermines the core principles of constitutionalism.⁶⁵

A fragmented and unstable legal framework

First, the fact that migration law is one of the more contested political arenas in the last few decades implies the creation of a setting where the rules of the game are constantly changing. Italy is a paradigmatic example: since 2018, 20 new pieces of legislation have been approved to amend immigration law;⁶⁶ they have quite often been preceded by government decrees, further modified in the process of being converted into acts of Parliament, and a number of which also provide for temporary regulatory measures that may be changed without a formal amendment. In addition, the courts have been busy striking out provisions⁶⁷ or providing new interpretations of the law.⁶⁸

The same complexity, inconsistency and rapid evolution is also apparent in the legal frameworks of other EU member states, even though this evolution has occurred at a slower pace.⁶⁹ In Germany, for example, more than ten amendments and new regulations were issued from 2015 to 2018, making it difficult to mobilise against the legal framework (either to demand more restrictive or more liberal measures).⁷⁰ Needless to say, understanding the exact legal framework in such an ever-changing context is challenging and navigating through it is difficult not only for migrants, but also for all stakeholders involved in migration governance and for native citizens, who ultimately struggle to understand what is happening. This increases their suspicions and fears. It is not exclusively a theoretical legal problem when the predictability of the law is jeopardised ab initio. The uncertainty that has characterised the phenomenon of migration in Europe in the past two decades⁷¹ is at once a cause and an effect of the generalised migrant threat that populist radical right parties and movements invoke in their anti-immigration rhetoric.

Regulating migration through atypical acts

A second, salient, element of migration law is the predominance of secondary legislation (by-laws, regulations, ministerial circulars, administrative rules, etc) over acts of primary legislation.⁷² This trend is evident across European countries, where governments frequently bypass ordinary legislation and resort to decrees or other informal measures, such as communications, standard operating procedures, and circulars, thereby sidelining parliamentary oversight. A good example is Poland, where a plethora of secondary regulations, ranging from administrative regulations to simple internal border office rules, have been issued to manage the Belarussian and Polish border.⁷³

A similar trend may be seen in Italy, where the secondary role of Parliament in crucial decisions is a fait accompli. In December 2018, Salvini, at that time Minister of the Interior, promoted his new political course through a series of messages posted on social media stating that ‘Italian ports are closed’. A ‘code of conduct for non-governmental organisations operating in the rescue of migrants at sea’, issued in December 2017 by the Italian Ministry of the Interior in consultation with the European Commission, further echoed this type of policy approach. The code of conduct was aimed at regulating search and rescue operations in the Mediterranean conducted by non-governmental actors, including those flying third states’ flags. However, as stressed by the Italian Association for Legal Studies on Immigration, this ‘code of conduct’ is just another example of a more general and regrettable trend towards regulating migration through atypical acts, in order to evade the judicial and democratic checks and balances that are inherent to a society based on the rule of law.⁷⁴

The implications of this trend evoke the idea of the fruit of the poisonous tree: when policy decisions are undertaken through ambiguous legal instruments (and sometimes with instruments that are far beyond the spectrum of those that are suitable to be considered as proper sources of law), their effects are ill-fated, at least in terms of the coherence of the legal system. The prevalence of secondary regulations over the proper legislative acts stemming from Parliaments not only affects the conventional understanding of the rule of law, but also has significant consequences for the quality of regulation, the separation of powers, and the democratic oversight of legislation by Parliaments, which are by definition representative institutions that provide guarantees and where minorities can be represented and voice their political views.

Human rights theories, which encompass various mechanisms for safeguarding rights, emphasise the importance of constitutional and legal provisions mandating that certain matters be exclusively governed by Parliament.⁷⁵ This legal safeguard is grounded in a dual assurance: the procedural aspect, reliant on the formal legislative process; and the democratic aspect, based on political control over parliamentary decision-making through the critical role of the opposition. Such dual assurance becomes particularly crucial when the rights in question pertain to a vulnerable group, such as migrants. As non-citizens, migrants lack representation based on citizenship, rendering them subject to the legal systems of their host countries without the possibility or capacity to influence the rules governing their lives. Ensuring that the plurality of political voices represented in Parliament can discuss and oversee legislation is the minimal guarantee contemporary democracies can offer to migrants. Where the primary role of Parliaments is bypassed, there is a serious risk of undermining the protection of rights. Secondary acts result in a lesser extent of effective parliamentary control, thus allowing broad discretion in shaping crucial migration policies. This trend concentrates decision-making and implementation in the hands of the executive. Consequently, the principle of the separation of powers takes on a distinct configuration in the realm of migration policy and law-making,⁷⁶ with the executive historically assuming a dominant role vis-à-vis the legislature and judiciary.⁷⁷

Once again, this phenomenon has implications that go well beyond the theoretical discussion of the new doctrines of the separation of powers in the 21st century, if applied in contexts where populist radical right parties dominate the scene. As regards the capacity of populist radical right parties and movements to determine the crucial trends of the political agenda, the new configuration of powers risks putting the executive branch under considerable pressure to respond to those parties and movements’ claims, thus further strengthening the stereotyping and alarming claims of those parties and movements.

The blurred distinction between immigration law and criminal law

A further element of the migration legal and policy domain to be taken into consideration is the phenomenon of ‘crimmigration’, that is, the growing tendency of the state to merge crime control and immigration control. The boundary between immigration law and criminal law, which for decades had evolved as separate legal fields, becomes blurred.⁷⁸ The outcome is ‘the regulation of immigration through immigration-related criminal grounds such as unlawful re-entry, newer crimes such as fraudulent marriage for immigration purposes, or crimes that by their nature involve non-citizens, such as human smuggling or harbouring unlawfully present migrants’.⁷⁹ Coupled with the escalating rhetoric about bogus asylum seekers and the narrative of illegal immigration, crimmigration has strongly contributed to embedding migration governance in both the theoretical and empirical frameworks of security and crime control, rather than in the context of guarantees of rights and the rule of law. ‘At its core, crimmigration law promotes a security-centred view of migrants and migration. A foundational tenet involves demonization of migrants and discussion of migrations as a threatening unknown’.⁸⁰ In such a context, claims of migrants’ dangerousness dominate the scene and serve to justify a compression of rights, liberties and guarantees in the name of safety and security – claims that have traditionally found a vehicle in populist radical right parties and movements.

Migrants, therefore, are faced with an openly hostile legal setting, in which the very act of migrating is often criminalised. Furthermore, understanding rights and procedures may be very complex, and defending fundamental rights is difficult and turns out to be unsuccessful more often than it should,⁸¹ regardless of whether migrants are seeking protection or looking for a better life. As already discussed, it is beyond the scope of this study to demonstrate that the dominant traits of the migration legal framework are the direct and sole product of populist radical right parties and movements’ claims, but the correspondence between those claims and the regulatory setting is undeniable.

When the condition of women is invoked to justify those claims, the phenomenon of constitutional degradation- that in this field is mainly characterised by the ‘deterioration of the rule of law’⁸² -bridges the ambiguous discourse of gender equality under populism, producing major paradoxes.

Women’s rights as a battleground in the migration policy domain.

In the niche of the migration context, women’s rights, vulnerability, needs, but also agency are uncontestably at the centre of policy agenda, public debate and scientific research.⁸³ When the advocacy of women’s rights is conducted by entities that have, so far, defined their agenda based on the values of the patriarchal family, traditional gender roles, and decided anti-feminism, the effect is apparently disorientating, and contributes to adding complexity to an already hyper-Byzantine and frequently incoherent policy and legal framework.

Narrowing down legal entry channels

The first outcome of the misuse of women’s rights by populist radical right movements has been to provide a justification of the strong limitation of both forced and non-forced immigration on the alleged grounds of protecting national women against the brutality of foreigners, which is blamed on their culture of female submission (as has happened in Hungary, Poland, and Germany). The most typical populist slogan against immigration, ‘nationals first’, strongly reflects a protectionist attitude in favour of nationals’ wealth and well-being. It is coupled, here, with the even more prevalent, highly stereotyped, paternalistic discourse surrounding women’s need for protection. This is a narrative that perfectly fits with the idea of gender hierarchy, based on women’s natural inferiority,⁸⁴ and provides an apparently noble legitimisation for the more selfish protectionist claims. The most paradigmatic examples of this are Orban’s and Kaczyński’s positions.

In Hungary, after a long reiteration of the state of crisis that since March 2016 has allowed pushbacks and the limitation of asylum-seeking at the borders in the transit zones,⁸⁵ Government Decree 233/2020 and the subsequent Transitional Act of 16 June 2020 introduced new rules on asylum. Those wishing to seek asylum in Hungary have first to personally submit a ‘statement of intent for the purpose of lodging an asylum application’ at the Hungarian embassies in Belgrade or Kyiv (section 1, Decree 233/2020).⁸⁶ Then, if the National Directorate-General for Aliens Policy in Budapest allows it to do so, the concerned embassy will issue a single-entry permit to access Hungary for the purpose of submitting the asylum application, which will, finally, be examined on the merits, and eventually asylum can be granted.⁸⁷ Obviously, there have been no applications in the Kyiv Embassy since 2022. According to the European Council on Refugees and Exiles, in Belgrade eight Iranian nationals were granted the single-entry permit to submit the asylum application in 2021; four in 2022 and five in 2023 – the lowest rate of first-time applicants among EU member states, according to the International Organization for Migration.⁸⁸ This stream of legislation exactly fits into the trend of securitisation and building barriers that is common well beyond Hungary⁸⁹ and Poland.⁹⁰

The exploitation of issues regarding women’s integrity and rights illustrated into the previous sections contributes to building and consolidating a legal framework that is hostile to the recognition of migrants’ rights. Moreover, ‘these narratives are both racist and sexist, since they divert sexism and sexualised violence into a cultural and personal problem of an othered group of men, while also using ascription and homogenisation to characterise this group as inferior and dangerous based on a constructed culture of values’.⁹¹ That is to say, framing restrictive immigration rules in a gendered context also responds to the need to divert attention from the fact that the Polish and Hungarian legal systems are still imbued with gender-biased regulations⁹² and that both Hungary and Poland scored low in the 2022 Gender Equality Index.⁹³ Not to mention that gender violence is a worldwide phenomenon, and data show that gender violence is very often associated with domestic violence,⁹⁴ and not necessarily with immigration.⁹⁵

The stereotyping and stigmatisation of women in Muslim societies

The second implication of the populist gender equality discourse as a European value directly mirrors the political discourse stereotyping and stigmatising women’s position in Muslim societies. ‘European women have not fought for centuries for their rights to find, at home, people that, in the name of Islam, deny gender equality’ affirmed Giorgia Meloni in 2018 on Facebook. Translated into legal measures, this common idea of populist radical right parties and movements is reflected in integration-related legislation that makes women the litmus paper to measure the degree of integration into host Western societies. This is best exemplified in the Netherlands. In the compulsory integration courses and texts used in such programmes, a number of gender-related practices are explicitly described as conflicting with Dutch and Western values. ‘The texts continuously emphasise gender rules and norms displaying an assumption that the reader embodies a pre-modern view of women and gender compared to the claimed Dutch modern standards’.⁹⁶ Obviously, this is not to say that some gendered cultural and religious practices such as arranged marriages or sex-segregated education do not represent a violation of gender equality. The point is that ‘the implicit frame of the government has been that autochthonous women have accomplished gender equality, but that allochthonous women still do not fit into the Dutch gender model’.⁹⁷ In Germany, in the integration test in Baden Württemberg, a question was worded something like ‘Your adult daughter/your wife would like to dress like other German girls and women. Would you attempt to prevent her from doing this?’. Questions such as that were later withdrawn,⁹⁸ but the message conveyed through this approach is not simply that immigrants’ culture is per se suspicious and makes them unfit to enter the German society, but also that girls and women embody those traditional values presumed to be embraced by their backward culture, that they are subjugated, with no agency.

The thorny question of the veil can be framed in the same vein. It is not surprising that in Germany in 2018 the Alternative for Germany party proposed a bill in the Bundestag – the German House of Representatives – to ban full veiling in public spaces, streets included, marking a step in the direction of greater restrictions in comparison with the veil prohibitions in public services already existing in a number of Western countries.⁹⁹

Much has been written on the topic and both the European Court of Human Rights¹⁰⁰ and the European Court of Justice¹⁰¹ have delivered a number of decisions on the issue, deciding on a case-by-case basis. Noticeably, even in those cases where the ban on headscarves was found admissible, the European Court of Human Rights held that ‘a State Party cannot invoke gender equality in order to ban a practice that is defended by women – such as the applicant – in the context of the exercise of the rights enshrined in those provisions (Article 8 ECHR on private life and article 9 ECHR on religious freedom)’.¹⁰²

Once again, without entering into the specific debate, these measures, in the name of gender equality, crystallising cultural backwardness into women, do not leave space for any recognition of women’s agency and may end up impacting on women’s dignity and the empowering process, resulting in their exclusion from public spaces.

The ‘nebula’ effect

The third outcome is more opaque; it consists in a plethora of secondary regulations that have a ‘nebula’ effect. Just as nebulae are conglomerates of interstellar dust, the migration legal framework is filled with a multiplicity of secondary, minor rules, addressing very diverse aspects of collective, ordinary life, while pushing the socio-political and cultural climate towards an intolerance saturation point. A blatant example of this is what is taking place in Italy, where administrative measures adopted by mayors have denied women wearing a so-called ‘burkini’ access to beaches or indirectly caused the cancellation of leisure events reserved for Muslim women.¹⁰³ The same has happened in Hungary, where the niqab and burkini were locally banned by mayors.¹⁰⁴

Another interesting issue is access to sport and sport facilities.¹⁰⁵ A debate on the dress code of Muslim female athletes has been ongoing for a while. In France, for example, the Fédération Française de basketball, in Article 9.3 of the General Sports Regulations in Basketball, prohibits the wearing of ‘any equipment with a religious or political connotation’ at all levels and for all categories.

At the professional level, access to sport for athletes who wish to wear specific religious or cultural garments requires a delicate balance between necessary sports-specific equipment and clothing used during sports competitions, the athletes’ well-being and cultural and religious criteria.¹⁰⁶ At the educational level there is a wide discussion on co-educational or single-sex sports classes at schools;¹⁰⁷ and at the leisure level the debate focuses on the possibility of granting single-sex access to sport facilities. The debate spans throughout Europe, from Sweden, where in 2019 the chair of the Swedish Swimming Federation criticised an advert showing a Muslim girl participating in shooting competitions wearing a veil,¹⁰⁸ to Italy, where in different regions the Lega has protested against the granting of reserved access to municipal sport facilities for migrant women to train.¹⁰⁹

These kinds of elements are not usually considered when analysing the overall legal framework in migration-related analysis and political debate, as they are difficult to single out. More often than not they are minor rules and regulations, or they are issued by non-state authorities. Nonetheless, they may be very relevant for daily life. Moreover, if combined with the primary sources of law that define the immigration and integration regimes of different countries, political discourse and the socio-cultural processes of stigmatisation and marginalisation, they contribute to creating a generalised hostile regulatory environment that focuses on women to promote anti-immigration stances.

Final remarks

The purpose of this study is not, by any means, to advocate against universalism in the recognition and guarantees of migrant women’s fundamental rights, or to support any step back in women’s empowerment. On the contrary, the research unveils the hidden paradoxes behind the populist legal narrative of Western societies’ achievements in terms of equality and dignity, which may lead to a paradigmatic inconsistency of intents and ultimately result in a further jeopardisation of rights. Making it more and more difficult to enter Western countries – to seek protection or in search for a better life – in the name of protecting women from being subjugated and to avoid perpetuating a culture of women’s inferiority is at odds with a genuine culture of rights-based empowerment. Equally at odds with a culture of a right-based emancipation are integration programmes and tests which exclude rather than include, and in which women’s agency is systematically denied in the name of gender equality.

In the aggressive struggle that populist radical right parties and movements are carrying out across Europe to build consensus, migrant women lie at the intersection between two core axes of populism: anti-immigration stances and the strongly gendered orientation of their messages. This gendered orientation is often Janus-faced: traditional gender roles, the support for ‘natural’ families, anti-quota stances for the native population on the one side; and harsh criticism against women’s subjugation by male immigrants – ostensibly due to their ‘religious and cultural backwardness’ – for the migrant population, on the other.

The most prominent victim of such a struggle is women’s agency. The populist radical right parties’ and movements’ paternalistic, stereotyping discourse regarding migrant women’s rights blurs all differences and denies the capacity of those women to make rational choices for their own sake. It pushes them back into the dangerous category of ‘objects/subjects’ instead of upgrading them into the category of ‘citizens’. Rights should be emancipatory instruments of empowerment, serving to make a difference in people’s lives, and especially in women’s.¹¹⁰ The process of disempowerment and marginalisation through the exploitation of the rights issue is one of the most dystopic effects of contemporary radical right populism, a typical epiphany of constitutional degradation.