International Journal of Migration and Border Studies
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International Journal of Migration and Border Studies (1 paper in press)
Special Issue on: Comparative Migration Law Methods, Debates and New Frontiers
A critical-contextual approach in comparative migration law by Kevin Fredy Hinterberger Abstract: This contribution deals with the critical-contextual method, which is a critical evolution of functionalism and introduced as a specific comparative law approach to migration law. Critical-contextual comparison draws upon three established methods/approaches: functionalism, contextualism and critical approaches. It fuses them to qualify as 'thick' comparison per Frankenberg. Comparisons are 'thick' if they are context-sensitive, critical and reflexive. To contribute to the operation and application of the critical-contextual approach generally, the present article carves out the method of critical-contextual comparison relying on certain findings of a case study on regularisations of irregularly staying migrants in the EU, in particular in Germany, Austria and Spain. The aim is to demonstrate how critical-contextual comparison can be undertaken in the area of migration law and the problems and challenges that may arise. Keywords: comparative migration law; contextual comparison; contextualism; critical approaches; critical legal studies; EU law; functionalism; functional method; irregularly staying migrants; migration law; public law; regularisations; return directive. DOI: 10.1504/IJMBS.2022.10047059