Credits: Ilias Bartolini. 'EU let them through - Refugees Welcome, Trafalgar Square, 2015' CC BY-SA 2.0.
By Kris van der Pas and Annick Pijnenburg
Today’s commemoration of International Migrants’ Day merits attention being paid to two developments that have significantly shaped the direction of the migration legal field – and specifically refugee and asylum law – in 2024. One of these has been the continued rise in externalisation of migration control and asylum, which consists of ‘the process of shifting functions that are normally undertaken by a State within its own territory so that they take place, in part or in whole, outside its territory’. This often involves extraterritorial processing: asylum seekers are transferred to a different state in order to have their asylum claim assessed. The other trend is an increase in the use of strategic litigation, meaning the use of judicial procedures in order to create (legal/political/social) change beyond the individual case or interest. This post briefly sets out these developments and their interaction, focusing on the different sources of international and European law that come into play when litigating externalisation measures. It shows that increasing externalisation can trigger a rise in strategic litigation as well as rule of law backsliding.
Externalisation
As regards externalisation, we can distinguish between two types of extraterritorial processing: states outsourcing their asylum procedures, meaning that a third country is responsible for processing asylum claims, and offshoring asylum procedures, meaning that states carry out the asylum procedure on the territory of a third country. A case in point of the former is the 2024 treaty between the UK and Rwanda that was based on an earlier memorandum of understanding. An example of the latter is the ‘protocol’ signed by Italy and Albania in 2023. Two centres have opened on Albanian territory, in which asylum claims can be processed by Italian authorities. Such policies take shape through some form of a deal, often a memorandum of understanding (for instance here and here). While at the date of writing no claims have been processed in either Rwanda or Albania, they signal worrying trends, especially in light of the experience of similar policies in the Pacific, as discussed further below.
Strategic litigation
A second development in the migration legal field is the rise of strategic litigation. Increasingly, lawyers, NGOs and social movements turn to the courts to achieve their goals, which might entail ending policies that lead to violations of migrants’ rights or changing public opinion about a certain migration-related topic. In a politically salient field such as migration, this strategy is pertinent due to political measures putting the rights of asylum seekers and refugees under pressure. Strategic litigation is not a straightforward, but rather a multifaceted phenomenon. Some try to pursue it mainly in national fora, whereas others focus on supranational judicial bodies. NGOs can choose to intervene in cases as third parties, while others represent asylum seekers directly. The outcomes of strategic litigation have been diffuse. Some cases are won by the applicant(s), like the cases of M.S.S. v. Belgium and Greece (before the European Court of Human Rights (ECtHR)) and N.S. and M.E. (before the Court of Justice of the European Union (CJEU)), and these lead to a change in policy. Others, like Hirsi Jamaa and others v Italy (ECtHR), are won but ‘contribute to understanding on how to evade judicial review in future cases’: as the ECtHR concluded in this case that Italy could not intercept migrants on the Mediterranean Sea and return them to Libya itself, Italy now provides funding and support for Libya to do the same thing. In other words, winning in court does not necessarily mean winning on the ground. Finally, some cases are lost, like N.D. & N.T. v Spain, although losing does not necessarily mean that there are no indirect (positive) effects of the case.
Unpacking the link: is correlation also causation?
These two trends of increasing externalisation and strategic litigation coincide, and while it is difficult to scientifically prove that there is a causal relationship, there is definitely a correlation. The battleground of migration control policies has moved partially from the political arena to the courts. This is due to political reticence to safeguard the fundamental rights of asylum seekers. In the context of externalisation, there is also fruitful ground for litigating, given the apparent illegality of externalisation measures. Under international law, past examples of externalisation – specifically Australia’s offshore processing in Nauru and Papua New Guinea – have shown that human rights violations are likely to happen. Numerous cases have been started in and outside of Australia in order to stop the policy, with the most successful example being a case brought to the Supreme Court of Papua New Guinea that ended the practice. Moreover, turning to the European context, the European Convention on Human Rights provides numerous safeguards, especially the prohibition of refoulement under Article 3, which has led the UK Supreme Court to rule that the policy of outsourcing asylum processing to Rwanda is unlawful. This judgment was met with a parliamentary Act severely curbing judicial review. This policy has now, following a change of government, been discontinued by the UK government.
Currently, the intertwinement between externalisation and strategic litigation is becoming particularly apparent in the Italian policy to process asylum claims in Albania. The Italian Association for Juridical Studies on Immigration (ASGI) is fiercely opposing this practice in court. Here, another legal source comes into play, namely European Union law. A decision by the civil court in Rome, relying mainly on an earlier judgment of the CJEU, determined that the first asylum seekers who were brought to Albania had to be returned to Italy. Moreover, there are preliminary references by courts in Rome and in Bologna to the CJEU currently pending on this matter.
Conclusion
What does all this say about migration law today? A first observation is that politicians and policy makers increasingly seek to implement migration control measures that restrict asylum seekers’ rights, notably through externalisation (see calls for such measures here and here). With increasing externalisation measures, there is a lot of ground for strategic litigation. Due to the questionable legality of many ‘deals’ between countries and a range of possible human rights violations, litigation will likely succeed on the merits – although procedurally it can be hard to access a court. For example, international agreements can often not be challenged directly at the national level and to access a supranational court domestic remedies must be exhausted. When procedural hurdles are overcome, judges are often requested (based on substantive arguments) to hold governments to account. As a result, in an attempt to limit judicial review, several countries have witnessed attacks on the judiciary and a deterioration of the rule of law. For instance, in the UK the Safety of Rwanda Act challenges the role of UK Courts and is a potential threat to the rule of law and separation of powers. In Italy, the government seeks to negate the effects of a court ruling ordering the return of asylum seekers who had been transferred to Albania (see here and here). In the greater scheme of things, such developments are extremely worrying, as attempts to control migration can lead to broader rule of law backsliding.
Bios:
Annick Pijnenburg is an assistant professor in International and European Law at Radboud University Nijmegen. She has an interdisciplinary background, combining social sciences and law, with a strong focus on international human rights law and migration. Her expertise focuses on externalisation of migration control and accountability for human rights violations more broadly.
Kris van der Pas is a postdoctoral researcher, working on the sectorplan project 'Judicial lawmaking in a globalized legal order'. In her research, she looks specifically at public interest litigation cases. Her PhD research was on strategic litigation in the field of asylum law in Europe, exploring decision-making of civil society organizations in strategic litigation procedures. She has published widely on strategic litigation, legal mobilization, international/European human rights, and European & Dutch migration law.