The Future of Legal Struggles

The year 2023 was not a good year for the rights of asylum seekers. The decision about a new legal framework for the Common European Asylum System (CEAS) was described as a “historic moment” (Ylva Johansson), but in fact works as a programme of disenfranchisement. The European Parliament was unable to defend its position during the negotiations with the Council. Even the “red lines” of national governments could not be maintained, for example the German government’s demand to exclude families with children under the age of 12 from the new border procedures. The year 2023 has therefore shown that pro-migrant and progressive positions in asylum and migration policy are hardly able to gain success in the political field.

If the pursuit of progressive positions are blocked in the political arena, actors shift their strategies to the judicial field. Even before the summer of migration 2015, successful legal struggles had a significant impact on European migration policy. Push-backs on the high sea were prohibited (ECtHR, 2012, Hirsi) and transfers of asylum seekers to inhumane conditions under the Dublin system were prevented (ECtHR, 2011, M.S.S.). Political reactions in the years after 2015 and the draft for the new CEAS are characterised by attempts to circumvent the consequences of these judgements. In this blogpost, I will discuss what the future of legal struggles within the framework of the new CEAS might look like.

The Concept of Legal Struggles

Legal struggles are a central motor for changing social power relations. Following Pierre Bourdieu, I understand legal struggles as disputes that take place in the juridical field and are conducted in the language, logic and semantics of law. The term goes beyond the concept of strategic litigation which focuses on legal proceedings in court. However, legal struggles, as they were also understood in the tradition of the feminist movement, include the development of a legal consciousness at the social level. Legal consciousness often emerges through the dynamics of political struggle.

The concept of legal struggles also covers disputes of opinion in legal literature which, according to Bourdieu, is a game or “battlefield” and thus an expression of power relations. Common place references in legal practice and discourse to the so-called “prevailing opinion” and “dissenting opinion” are clear hints at the hegemonic battles around the interpretation of the legal text. Finally, the concept of legal struggles captures the interrelationship between politics and law. In order to bring political struggles into the law at all, resources are needed: money, networks, alliances between lawyers and NGOs but also contributions to the discourse in the political public sphere that support the legal process.  Law is not enforced on its own but must be mobilized. In his field theory, Bourdieu did not conceive of the political and juridical field as completely separate spheres. Rather, shifts in the political balance of power have an impact on the juridical field – and decisions in the juridical field sometimes trigger considerable dynamics in the political field. The political reactions to the budget ruling of the German Federal Constitutional Court have made this point clear to a broad public.

Legal struggles are not only enacted by progressive actors who want to extend the rights of marginalized individuals and groups. The juridical field is contradictory and permeated by power relations, which is why authoritarian or right-wing legal struggles can undoubtedly also be linked to legal disputes, as the success of right-wing legal strategies in Poland has shown. But the European legal order which is rooted in the rule of law and human rights does not adapt to the new authoritarian conditions immediately. The inflexibility of the law is an advantage in times of authoritarian acceleration and can keep the political scope for action of progressive actors open and defend the rights of marginalized people seeking protection. However, the struggles for European migration law will also change due to the new legal framework and political shifts.

Legal struggles before the ECtHR

The new CEAS introduces numerous novel instruments of migration control into European law as well as tightens measures that have already been part of the former CEAS and were enforced by Member States. The detention of asylum seekers in transit zones at the land border, accelerated admissibility procedures as in the case of border procedures and safe third country concepts were tested in the Greek laboratory in particular. This also means that the legal struggles under the new CEAS will be characterized by a certain amount of continuity. Lawyers’ networks and NGOs such as Equal Rights Beyond Borders have gained a lot of experience in lawsuits in recent years and are not unprepared for the new boom in legal struggles. This is a relevant difference to the 2000s. Resources for legal struggles have increased, despite the authoritarian development.

As in previous years, the legal struggles will take place at different institutional levels. The European Court of Human Rights has been under massive pressure for several years, partly because of its rights-based case law on migration policy until 2015. This trend has reversed. Since the summer of migration, the Grand Chamber of the Court has made decisions legalizing pushbacks at land borders, legitimizing detention in transit zones and preventing legal access routes via humanitarian visas. The ECtHR was under political pressure and the judgments show impressively how changing public discourse can affect the rulings of courts. In contrast to the early 2000s, the case law of the Grand Chamber is now much more closely aligned with the interests of nation-states to control territorial access.

However, this does not mean that the ECtHR cannot be utilized for or is an inadequate venue to pursue legal struggles against the new CEAS anymore. Legal struggles in solidarity with refugees were successful in recent years in the sections of the Court working under the Grand Chamber. The Court judged that the living conditions in the refugee camps on the Greek islands are inhumane and degrading treatment and also criticized the hotspots in Italy for their “poor material conditions.” These decisions form benchmarks for critically assessing future conditions in the so called border procedures, a central instrument of the new CEAS. However, a likely obstacle will be the extent to which the not exactly large number of lawyers at the external borders will have access to these centers to challenge these practices.

In the case of the Farmakonisi disaster and the death of a refugee at the Hungarian border, the ECtHR recognized the lack of independent investigations by nation states into the deadly consequences of the pushback practice. These rulings are currently being followed up by the legal investigation into the Pylos case, a shipwreck in which over 600 people are believed to have died in May 2023. Pushbacks will continue to take place under the new CEAS because the EU has failed to develop mechanisms to stop this practice – and the judgements concerning independent investigations will be crucial for legal struggles to address this border violence.

The legal struggles of legal professionals and NGOs will therefore likely seek to build on previous decisions and utilize the ECtHR’s lower sections for proceedings. Depending on the outcome of the next wave of legal struggles, however, the risk of states actually withdrawing from the ECHR could increase. Members of the Conservative British government have repeatedly called for this course of action in recent years. The aim of “Law and Order”-politicians in Europe is to neutralize the ECtHR as an arena for legal struggles in migration law. However, the attacks on the ECtHR show that the importance of national constitutional courts for asylum policy could become more relevant again. In its decision, the UK Supreme Court extensively stated that the government’s deportation plans to Rwanda also violate the UK Human Rights Act of 1998 – and must therefore be avoided even if decisions of the ECtHR are ignored. It is possible that other constitutional courts in the EU might follow suit and strengthen their respective domestic human rights framework in order to avoid burdening the ECtHR with the main responsibility for human rights protection.

Legal Struggles before the ECJ

The role of the European Court of Justice in the new CEAS will be more important than ever. In recent years, the CJEU has issued a number of rulings in which the need for protection of asylum seekers has been recognized, contrary to restrictive practices in the member states, as most recently in its decision on domestic violence as a reason for flight. The numerous decisions to strengthen the subjective rights of asylum seekers also stand out, particularly under the Dublin regime. In contrast to the human rights system of the ECHR, European refugee law is much more legally substantiated by secondary law, i.e. regulations and directives, than the European human rights system. The concept of subjective rights under EU law in particular is broad and does not originate solely in migration law, but was reconstructed by the Court in its rulings about environmental law. But the Court used its former jurisprudence in the judgements Shiri and Mengestab to declare, that even the criterias for the responsible member state under the Dublin regime have a subjective character and asylum seekers can appeal before the court against Dublin transfers based on them. As a result, the case law of the CJEU on this issue is not dependent on the dynamics in a highly controversial area of law.

There is some evidence that the EU Commission and EU Member States seek to circumvent the CJEU’s previous case law or even neutralize/diminish its role as a veto player. Thus, the Regulation on Asylum and Migration Management (RAMM), which will replace the Dublin-Regulation, dropped explicit subjective rights e.g. against the transfer in another European member state after the expiry of the transfer deadline. This stands in contrast to the Dublin III Regulation where these rights were present and the CJEU used it for enhancing the rights of asylum seekers. Nevertheless, the CJEU can continue to play an important role for asylum seekers in shaping the CEAS in the future. Legal struggles would have to be aimed towards a European constitutionalisation of migration law. This means that in future cases the CJEU would have to base its decisions much more on primary law, specifically the EU Charter of Fundamental Rights, and legal struggles would have to focus on activating the relevant standards from the Charter.

Important legal battles will arise over the externalization of asylum procedures. Many EU member states, including Germany, are considering outsourcing procedures in third countries. Models like the Albania Pact are now being tested by Italy. According to the new CEAS a connecting element must exist between the asylum seeker and the third country. A mere copy of the “Rwanda model” would therefore not be possible. But in the end, the ECJ could be the arena in which the specific interpretation of this “connection element” becomes relevant.

In their REMAP study (Human Rights Challenges to European Migration Policy), Jürgen Bast, Frederik von Harbou and Janna Wessels speak of “underinclusive legislation” if the EU “does not prevent the Member States from taking decisions that violate human rights, or seemingly even invites them to do so”. In this respect, the new CEAS is a prime example of “underinclusive legislation” with intent, both because the EU is withdrawing existing legal protection options against human rights violations and because it is not installing effective mechanisms to put an end to ongoing human rights violations. The constitutionalization of migration law could counteract this “underinclusive legislation” to a certain extent.

Concluding Thoughts

There are now better support structures in place to conduct legal struggles in Europe than there were before the summer of 2015. Many NGOs and lawyers have gained experience in strategic litigation in recent years, and networking amongst activists and academics has improved. These are good news for future legal struggles. At the same time, the pressure on civil society movements which are often also the initiators of legal struggles is increasing. Human rights activists in the EU are increasingly threatened with considerable criminalization. Bourdieu said that court rulings are “magical acts” if they succeed in gaining universal recognition. Human rights for refugees and their supporters could need some magic.