The Growing Influence of the Courts over the Fate of Refugees

A number of migration scholars suggest that domestic courts have become the key protective institution for refugees. How can we explain this claim? One prominent explanation identifies group litigation as the key source of the increasing influence of the courts. How well does this explanation travel empirically? The article evaluates this explanation by examining the puzzling behaviour of German refugee NGOs. They have not entered the legal arena directly (either as parties or as interveners), nor have they concentrated on developing extensive litigation campaigns. Still, they are remarkably ‘judicialized’: their frequent engagement with the law in other respects has heightened their legal consciousness. Why have German refugee NGOs made such different choices than their North American counterparts and what do these choices tell us about the expanding influence of the courts over the fate of refugees in Germany and North America? To make sense of the different choices that these organizations have made, we need to understand the role that institutional norms and procedures, in particular policy legacies, have played in directing the behaviour and identity of these groups. For a number of reasons, German refugee NGOs historically have been discouraged from directly accessing the courts in favour of indirect participation. Since Canadian and American refugee organizations follow a pattern closer to the expectations of the (largely North American) literature on the subject, we need to be more careful in thinking through our presuppositions when constructing a theory of the worldwide expansion of judicial power

Taking the Harper Government’s Refugee Policy to Court

There is no question that significant changes occurred in Canadian refugee policy under the Conservative government of Stephen Harper during its near ten years in power. Indeed, observers note that virtually no aspect was left untouched. The effects of many of these alterations are still unfolding, and while the subsequent Liberal government of Justin Trudeau committed itself to reversing or altering some of them, many will likely be preserved. In this chapter, we focus on changes that occurred to Canada’s inland refugee policy with two larger goals in mind. First, we de-mystify the role of the courts in shaping refugee policy in Canada. Second, we contribute to a growing body of work that reflects on the contentious relationship between the Harper government and the courts. In particular, the chapter examines the mobilization that occurred through and beyond the courts in response to the government’s 2012 cuts to the Interim Federal Health Program (IFHP) for refugees. Our research shows that while the role of the courts in overseeing Canadian refugee policy is generally quite limited, significant mobilization on behalf of refugees inside and outside the courts occurred in response to the Harper government’s particularly rights-restrictive approach. Overall, we argue that in order to understand the relationship between the courts and public policy, it is necessary to appreciate the broader policy and political contours within which court rulings emerge, and the specific contexts that prompt court involvement in the first instance

The Managerialization of Refugee Determinations in Canada

Although refugees are protected by a myriad of legal norms, this article shows that the domestic process of determining who is awarded this status has become more and more managerialized, even in a country like Canada, which has generally been considered a leader among refugee-receiving countries. This privileging of efficiency-based standards has gradually sidelined an earlier push to judicialize refugee determination procedures to the extent that access to the courts for refugees more generally is now considered problematic and ultimately suspect. The article uses historic institutional tools to highlight the critical role that the external, political environment has played in gradually managerializing refugee determination procedures

Mobilizing European law

The literature on European legal mobilization asks why individuals, groups and companies go to court and explores the impact of litigation on policy, institutions and the balance of power among actors. Surveying the literature we find that legal mobilization efforts vary across policy areas and jurisdictions. This article introduces a three-level theoretical framework that organizes research on the causes of these variations: macro-level systemic factors that originate in Europe; meso-level factors that vary nationally; and micro-level factors that characterize the actors engaged in (or disengaged from) litigation. We argue that until we understand more about how and why different parties mobilize law, it is difficult to respond to normative questions about whether European legal mobilization is a positive or negative development for democracy and rights.This work was supported by the University College London Global Engagement Strategy Leadership Fund; the UK Economic and Social Research Council [grant number ES/K008153/1]

Encyclopedia of Contemporary Constitutionalism

Canada and the United States are both international leaders in the admission of refugees. The chapter first discusses and compares the domestic asylum determination system in Canada with that of the United States, followed by an overview of their respective refugee resettlement programs overseas, which largely take place outside of the rule of law. The Canadian section includes an overview of the 2002 Canada-US Safe Third Country Agreement (STCA), which remains in effect but has twice been challenged on constitutional grounds thus far. The chapter makes reference to the tension between domestic constitutional norms, the rights of refugees in international law (Hathaway, The rights of refugees under international Law, 2nd ed. Cambridge University Press, Cambridge, 2021), and the growing preference of both Canada and the United States to treat refugees as “migrant[s] who the government may have reason to select” (Galloway Rights and the re-identified refugee: An analysis of recent shifts in Canadian law. In Kneebone S, Stevens D, Baldassar L (eds) Refugee protection and the role of Law: conflicting identities. Routledge, London and New York, 2014, 38) by securitizing asylum and by deterritorializing their borders throughout. It shows that this preference is at least in part anchored in a much older tradition of admitting refugees via discretionary humanitarian admission schemes, shielded from judicial oversight

Temporary Protection in Times of Crisis: The European Union, Canada, and the Invasion of Ukraine

The Russian invasion of Ukraine in February 2022 triggered a major displacement crisis. In an unprecedented move, the European Union activated the 2001 Temporary Protection Directive to give those fleeing the conflict temporary protection, marking the first use of the directive in 20 years. Meanwhile, Canada announced its readiness to accept an unlimited number of Ukrainians and launched the Canada–Ukraine Authorization of Emergency Travel to fast-track their arrival. This article compares the policy responses of the EU and Canada to the crisis in Ukraine, focusing on the two temporary protection schemes and differentiating between their overarching goals, policy instruments, and settings. While the policies may seem similar at first, we show that a closer examination reveals underlying disparities, contradictions, and complexities, particularly when analyzing the precise policy instruments and settings. Considering that contemporary policy trajectories are informed by the past, we suggest that while the two programs build on the respective regions’ historical and political contexts, crises also create opportunities for change, raising questions about the future direction of immigration policy in both regions

The Paradox of Docket Control: Empowering Judges, Frustrating Refugees

This article focuses on the gradual expansion of docket control mechanisms in refugee (or asylum) law proceedings in Germany. It shows that granting judges more and more control over their asylum dockets was a central policy tool repeatedly employed by German politicians over the decades in the hope that it would stem the flow of refugees into the courts and ultimately make it easier (and faster) to deport failed claimants. Politicians were much more willing to limit access to asylum appeals than to appeals in general administrative law, illustrating how the pressure to come up with solutions for the flood of asylum applications overcame established norms for maintaining equal access to the courts for all claimants. Surprisingly, the Constitutional Court remained largely unaffected by these efforts except for a paradigm shift that occurred with the amendment of the constitutional asylum provision in 1993

Extending Hospitality? History, Courts and the Executive

While many consider court involvement in immigration matters a given, in liberal nation-states, there is actually a substantial degree of variation. This chapter revisits two “critical junctures” in the early immigration histories of Canada and Germany to show that institutions and policy legacies are not just historical backdrop, but actually shaped the strategies of political actors, subsequent institutional configurations, and policy options for long periods of time, thereby revealing unintended consequences, as well as alternative paths that the involvement of the courts (and other actors) could have taken

Mobilizing European law

The literature on European legal mobilization asks why individuals, groups and companies go to court and explores the impact of litigation on policy, institutions and the balance of power among actors. Surveying the literature we find that legal mobilization efforts vary across policy areas and jurisdictions. This article introduces a three-level theoretical framework that organizes research on the causes of these variations: macro-level systemic factors that originate in Europe; meso-level factors that vary nationally; and micro-level factors that characterize the actors engaged in (or disengaged from) litigation. We argue that until we understand more about how and why different parties mobilize law, it is difficult to respond to normative questions about whether European legal mobilization is a positive or negative development for democracy and rights