Blog post by Kris van der Pas, postdoctoral researcher at Tilburg University *
During the 2024 RLI Annual Conference, one of the key issues discussed by multiple speakers was the (now all-but-abandoned) UK plan to send asylum seekers, who arrive irregularly, to Rwanda. The legal discussion revolved around the UK Supreme Court case on the (then) UK-Rwanda policy, the UK-Rwanda Treaty, and the Safety of Rwanda Act. One of the key takeaways highlighted by many speakers was that it is highly unlikely that the proposed transfer of asylum seekers would be in accordance with (inter)national refugee law and human rights for various reasons. This is, as such, not a surprising finding. Many other practices by states in the field of asylum – such as pushbacks – have been declared illegal (by courts and/or academics). Nevertheless, these practices continue to flourish. In response, as lawyers, we refer to the legal framework and existing case law to show the apparent illegality of what is happening. Moreover, civil society organizations continue to bring cases to fight these practices.
This practice of bringing cases has put judges under pressure, as the executive power has not looked particularly favorably at the rulings that have resulted from these cases. As shown in the UK case, judicial review has even been limited by the executive as a consequence of unwanted case law. The role of the judge in the separation of powers is thus under discussion, as the independence and impartiality of the judiciary are challenged and even measures are taken to limit the power of judges. Additionally, there is an increasingly dubious role of the other branch of government, the legislature, which leaves more and more room to the judge in new legislation that is made. New norms are kept ‘open’ and more vague, forcing the judiciary to interpret and fill in the gaps. This development can be seen elsewhere in Europe, and more specifically in the European Union (EU). As early as 2011, Daniel Kelemen argued that in the EU there is increasing evidence of ‘Eurolegalism‘; an almost American-like system in which regulation is determined less by bureaucrats, but more and more by litigation in court (‘regulation through litigation’). Again, this development is fueled by the European legislature adopting increasingly vague norms that leave room for the courts to flesh out these norms in litigation. Accordingly, courts receive criticism and accusations of judicial activism (this is also rhetoric adopted against the UK Supreme Court). The separation of powers is, therefore, under pressure, with the three powers influencing one another, leaving the balance between the branches of government questionable.
These accusations stand in stark contrast with the legal successes that have been achieved in the field of asylum law throughout Europe. In my doctoral research, I looked at advocacy organizations that stand up for the rights of asylum seekers and refugees through the courts. Whereas in America and the UK people often refer to public interest litigation, a term that raises the question of what exactly a public interest means, I use the term strategic litigation, which is the more commonly used term in Europe. This term focuses on strategy: litigation is chosen by organizations as a strategy to bring about legal, political, and/or social change. This change is envisioned beyond the individual case and/or person. In my research I took a bottom-up view, looking at the strategy within strategic litigation through interviews with civil society organizations. The choice for the field of asylum law can be explained because of the Europeanization of the legal framework and the increasing role of fundamental rights. Thus, in the context of “Eurolegalism” and the rule of law, this is an interesting area of law. In addition, strategic litigation in asylum cases is often hidden: organizations represent individual clients or are involved as third parties in a case. Research has indicated, nevertheless, that interest groups were behind a number of important national and European court cases in asylum law.
My doctoral research demonstrates that strategic litigation can look different depending on the political, legal, and organizational context. In the Netherlands, for example, there is the Strategic Litigation Committee of the Dutch Council for Refugees, which focuses on legal discrepancies between Dutch and European law via “expert notes” (submitted in proceedings through asylum lawyers). In many of these cases, questions are submitted to the Court of Justice of the EU, in which the Strategic Litigation Committee handles the pleading of the lawyers. In addition, in the Netherlands there is the Public Interest Litigation Project (PILP), a foundation that acts as a “legal ally” for other interest groups. Its proceedings mostly go via the civil route, in public interest actions through Art. 3:305a of the Dutch Civil Code. Its work also deals with asylum law issues. In three aspects, however, the working methods (strategies) of the two organizations differ. First, the type of procedure, administrative or civil, is different. This choice is caused by procedural law (which judge has jurisdiction?), but procedural law also has certain consequences (what can be claimed in court?). Second, there is a difference in involvement: litigating as an organization yourself, or bringing in expertise more indirectly through a memorandum (a kind of informal amicus curiae). Finally, the subject matter and how it was determined differs per procedure: in the Strategic Litigation Committee, legal experts saw a legal problem (bottleneck of Dutch and EU law), while in PILP there was also explicit involvement of the group of Afghan 1F asylum seekers that the procedure was about.
These differences in practices and preferences of Dutch organizations also translate to the other case studies from my research abroad. By comparing two organizations from the Netherlands, two from Italy, and two from Germany, I was able to interpret and explain the differences in practices. What is striking is the importance of uniform procedural rules that are currently lacking: the implementation of EU law, of great importance in asylum law, varies tremendously from one Member State to another, but the ability of interest groups to litigate about poor implementation is so different that not every organization can take cases to court on this issue. The many frictions between national and EU law, the importance of fundamental rights, and the lack of political will and legislation to achieve proper implementation increase the need for organizations to be able to precisely use the legal procedure.
As compliance with the law and legal rulings in refugee law remains problematic, these cases will continue to be brought. Indeed, to comply with the rule of law, the executive and legislative powers should not seek ‘refuge’ in attacking the judiciary for these decisions, but rather attempt to bring legislation and regulation in line with (inter)national human rights and refugee law. The separation of powers becomes problematic not only if courts engage with political questions, but also when the law and court decisions are not complied with by the legislative and executive branches.
* Kris recently completed her doctoral research and will be defending her thesis in public on 10 September 2024 at Radboud University Nijmegen. It can be viewed online. If you want to know more, please reach out to k.vdrpas@tilburguniversity.edu.
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