Blog post by Dr Maja Grundler, Royal Holloway University of London
Introduction
The European Court of Human Rights (ECtHR) plays a major role in shaping access to protection in Europe for refugees and other migrants, and the content of that protection. The jurisprudence of the ECtHR on asylum and immigration has long been analysed (and critiqued) by legal academics, some of whom inhabit the dual role of academic and practitioner and who have brought their research before the Court, for example as counsel or through third party interventions. Yet, relatively little is known about how practitioners (such as lawyers, judges and Registry staff) engage with academic work and how legal academic work can develop practical impact in the ECtHR’s courtrooms.
This blog post is the first in a series examining the relationship between academic work and practice focused on migrants’ rights under the European Convention on Human Rights (ECHR). The corresponding papers were presented at a workshop titled ‘From the University to the Grand Chamber: How can Academic Work on Asylum and Immigration have greater Impact in the European Court of Human Rights?’ which I organised on 9 May 2024 with the support of an impact grant awarded by the Socio-Legal Studies Association.
Bringing together practitioners and academics
The workshop brought together legal academics working on the ECHR and practitioners who have worked at, or engaged with, the ECtHR to discuss how practitioners use academic work, how academics and practitioners can work more closely together, and how academic work can have real impact in the ECtHR’s courtrooms. The workshop focused on legal academic work pertaining to asylum and immigration, giving academics the opportunity to showcase research which could have a practical impact on the protection of migrants under the ECHR.
The event consisted of two roundtables with academic speakers from a range of Council of Europe Member States and two practitioner discussants – Judge Emeritus Dr Françoise Tulkens, who has been Section President and Vice-President of the ECtHR, and Sue Willman who leads Deighton Pierce Glynn Solicitors’ international human rights work and is Assistant Director and Supervising solicitor at King’s College London’s Legal Clinic.
The first roundtable considered practicalities of taking cases, and academic arguments, to the ECtHR, dealing with established procedures and evidence but also showcasing new ideas in this area. Sue Willman opened the discussion with her reflections on taking cases to the ECtHR. We then heard presentations from Eva Brems (Ghent University), Eva Sevrin (KULeuven/Ghent), Isabel Kienzle (Friedrich-Alexander-Universität Erlangen-Nürnberg), and Sarah Ganty (Yale/Ghent/CEU DI).
The second roundtable focused on substantive legal academic arguments and how these might develop impact at the ECtHR. Françoise Tulkens opened the roundtable with her reflections on the role of academic work at the ECtHR. This was followed by presentations from Alan Desmond (University of Leicester), Lorenzo Bernardini (University of Luxembourg), and Ben Hudson (University of Exeter).
Opportunities and obstacles: academic impact at the ECtHR
The exchange between speakers, discussants and the audience (consisting of academics and practitioners in the field) showed that academic work is relevant and useful for the ECtHR. As evident from Judge Emeritus Tulkens’s contribution to this series, the Court values academic work and there are different stages in the procedure where academic work may be of value.
At the same time, there are barriers to academic work developing impact at the ECtHR. These include a lack of understanding on academics’ part of the Rules of Court, in particular the procedural rules and Practice Directions on third-party interventions); resource constraints, which do not allow practitioners to become aware of and engage with academic work on relevant issues and to obtain legal aid; time limits for submitting third-party interventions and refusals of interventions; strict admissibility criteria, causing cases – and the academic work relevant to them – to not be examined; as well as long delays in hearing cases, which may cause academic work which was relevant at the time of application to become outdated while the case is pending.
The way forward: ideas for increased impact and collaboration
Against this background, the workshop provided practical ideas on turning research into practice and highlighted the need for collaboration and coordination between academics and practitioners. In particular, the discussion suggested that academics may bring their work to the attention of judges and other practitioners through (coordinated) third-party interventions, blogging, and indeed knowledge-exchange events like the workshop itself. These measures can help to counter barriers to academic work reaching practitioners who may apply it.
This workshop showed that increased academic-practitioner collaboration will benefit academics and universities, practitioners and their clients, as well as the ECtHR itself. In the UK, academics are expected to generate impact through their research, defined by UK Research and Innovation as ‘an effect on, change or benefit to the economy, society, culture, public policy or services, health, the environment or quality of life, beyond academia’. Workshop participants noted that similar expectations also exist in other Council of Europe member states.
In discussing examples of academics thinking of novel ways in which the law can be interpreted and applied to strengthen the legal reasoning employed in a particular case, the workshop showed that there is great potential to achieve the desired ‘effect on, change or benefit to … society’ by bringing academic arguments to the courtroom. Thus, Alan Desmond, in his contribution to this blog series, examines how the ECtHR’s application of Article 8 ECHR in its expulsion case law has shrunk the Article’s protective potential for migrants and suggests ways for the Court to change its approach. Lorenzo Bernardini, in his contribution, argues that the ECtHR must recognise the punitive nature of immigration detention and put in place appropriate legal safeguards. Ben Hudson’s contribution to the blog series examines the ECtHR’s use of ‘vulnerability’ in its asylum jurisprudence, arguing that the concept has become a toll for exclusion.
Academic work like the above will benefit practitioners who will be supplied with background research and novel arguments which they would not have the time and resources to develop themselves. Clients, in turn, will benefit from detailed legal arguments developed by academics and adapted to their individual cases by practitioners. Finally, the ECtHR itself may benefit from academic work which leads to greater coherence of its jurisprudence. Although, as Eva Brems and Ellen Desmet note in their contribution to this blog series, academic impact on the Court’s reasoning can be difficult to prove and measure, academics often do find their reasoning reflected in the Court’s judgments.
Thus, hoping to bring their legal arguments to the ECtHR’s courtrooms will benefit from understanding the requirements for third-party-interventions. In light of the difficultly of proving and measuring impact, academics will also benefit from considering their personal motivations for attempting to engage with the court and remind themselves that there is a real person at the heart of each case, who requires access to justice.
In addition, academics should familiarise themselves with the Court’s procedural rules. Not only in order to engage in its procedures effectively, but also to remind the Court of its own rules and how these may be applied in certain cases. As Isabel Kienzle’s contribution to this blog series shows, some of the tools at the Court’s disposal are underused and could be employed more effectively to resolve complex evidentiary issues.
Conclusion
The contributions to this blog series show that there are a great number of ways for academic work (on asylum and immigration) to develop impact at the ECtHR. Academics working on issues which could inform the Court’s practice should be proactive in bringing their work to the Court’s attention, particularly through third-party interventions and blog posts. At the same time, practitioners wishing to draw on academic work to support their client’s case at the ECtHR can directly approach academics working in the relevant area and flag those cases for which research and/or interventions are needed. Such academic-practitioner collaboration will benefit all parties involved.
The views expressed in this article belong to the author/s and do not necessarily reflect those of the Refugee Law Initiative. We welcome comments and contributions to this blog – please comment below and see here for contribution guidelines.