29 February 2024
Pushing Back
The CJEU has pending before it a crucial case on the criminalisation of seeking asylum and assistance to those seeking protection. At this critical juncture, this blog post highlights a sample of important decisions in which courts, giving effect to constitutional and international legal principles, set legal limits on this form of criminalisation. These cases reflect not only the appropriate legal limits, but also acknowledge the character of irregular migration and smuggling. Rather than framing individuals as dangerous illegal migrants and exploitative smugglers, they reassert the humanity of both those in search of refuge and opportunity, and those that assist them. Continue reading >>
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20 November 2023
Supreme Judgecraft
In R (on the application of AAA (Syria) and others) the UK Supreme Court held that the Secretary of State’s policy to remove protection seekers to Rwanda was unlawful. Rwanda is not, at present, a safe third country. There are, the Supreme Court found, “substantial grounds for believing that there is a real risk that asylum claims will not be determined properly, and that asylum seekers will in consequence be at risk of being returned directly or indirectly to their country of origin.” Should this occur “refugees will face a real risk of ill-treatment in circumstances where they should not have been returned at all.” We argue that the Supreme Court’s legal reasoning and evidential assessment are both impeccable, applying legal principles that are well-embedded in international and domestic law to very clear evidence. However, the UK government’s responses are deeply troubling, from the perspectives of refugee protection, international legality, and the rule of law in the UK. Continue reading >>
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25 June 2023
Human Rights Violations to Deflect Refugees
The Council of the European Union (EU) recently reached a negotiating position (‘mandate’) on two significant elements of the ‘reform’ of the Common European Asylum System (CEAS). The vision hailed as a ‘historic’ agreement by national governments is a direct threat to the right to asylum. The Council not only maintains all structural flaws of the CEAS intact but proposes a quagmire of asylum procedures marred by unworkable, unnecessarily complex rules, that are in clear violation of key human rights standards. Continue reading >>26 September 2022
Coping Strategies: Domestic and International Courts in Times of Backlash
Domestic and regional human rights courts around the world are under pressure. Populist, illiberal, or autocratic forms of governance have led to a global attack on constitutional democracy, and its guardians, courts. As a result, courts find themselves in a dilemma: should they intervene much more fiercely to uphold the rule of law or protect their institutional powers, but risk to be further attacked as enemies of the government and the majorities? Or should they practice judicial and prudential restraint to safeguard their institutional autonomy in the long term, but risk to be failing and regarded as foes by minority groups, civil society, and progressive movements who are on the receiving end of populist, illiberal or autocratic practices? Continue reading >>
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16 September 2018
Fixing the Refugee Crisis: Holding the Commission Accountable
In that 2015 State of the Union address, Juncker famously asserted that his Commission would be ‘very political’. ‘Political’ in Juncker’s words, meant facing up to challenges, not just ‘business as usual’. Rather, it was ‘time to speak frankly about the issues facing the European Union.’ In spite of this apparent rhetorical and institutional commitment, our central argument is that the Commission’s weakness during the refugee crisis meant it underperformed not only when measured against the aim of being more ‘political’ (in particular if this means correctly identifying and dealing with the sources of real political problems), but even if we envisage for it a more modest technocratic role. Continue reading >>
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14 June 2015